Law and Social Transformation in India Pishwarae

LAW
SOCIALSx
TRANSFORMATION
P ISHWARA BHAT
Eastern
Lis
gic Book.
LAW AND
SOC IAE
TRANSFORMATION
IN INDIA
LAW AND
SOCIAL
TRANSFORMATION
IN INDIA
P ISHWARA BHAT
MA, LLM, Ph.D
Professor of Law
University of Mysore
Foreword by
JUSTICE DR. SHIVARAJ V PATIL
Former Judge
Supreme Court of India
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Dedicated to
SOCIAL REFORMERS
OF
INDIA
FOREWORD
AM DEEPLY delighted to indite this Foreword to the book Law and

Social Transformation in India authored by Dr. P. Ishwara Bhat. Social
transformation is a vital, important and complex subject that speaks of
and deals with fundamental changes in society, its structure, method
and manner of functioning. Owing to tremendous advancement made
in Science and Technology, and Transport and Communication, the
world in a sense has become a global village. In the present times, the
world is exposed to and confronted with tremendous changes due to
multifaceted changes and complex situations. No country can be free
from the impact and effect of these changes and society in turn has to
respond either by choice or by necessity or both, with appropriate legal
framework, policies and programmes.
India is not only the biggest but also a developing, multicultural
democracy. Given the diversities, in our country, the task of social
transformation by bringing about appropriate changes is stupendous
and complex. In view of the vast area of our country enormous
population, pluralism in religion, language, caste onerous, structure,
ethnic groups, regions, prevailing conditions the task is onerous. Dr.
Bhat, keeping in view all these aspects, has made a very sincere and
serious effort to write this book on Law and Social Transformation in
India. He has already written several books and articles of substance
and worth and has presented many well researched papers at different
forums both national and international.
In this century, the World stands exposed to huge and drastic changes
having deep impact on the societies necessitating or demanding
Vill Law and Social Transformation in India
De Ee
ies and
proper response and appropriate action in formulating polic
oving.
programmes or/and making laws including modifying or impr
the last
Changes that have taken place all over the world during
quite
century and that are still taking place in the current century are
fast and spectacular. In democracy one of the vital dependable factors
in planning and managing social transformation is through the formal
instruments of law.
It is clear from the provisions of the Constitution, its ideals, scheme
and philosophy that it envisages a non-violent social revolution. It
guarantees certain Fundamental Rights and freedoms to the people of
this country that enables them to realise their expectations and fulfil
their aspirations. Itlays down values for the State in the form of Directive
Principles of State Policy to create a social—political reality that is both
equitable and just. It is generally claimed that the Constitution of India
is one of the best constitutions in the world. But, the Constitution
should not remain merelyas a document of admiration. It must truly
serve as aneffective, meaningful and purposeful instrume
rhe
nt
of social
that they live dignified lives and get justice as stated in the Preamble
of the Constitution. Fundameiital Rights and Directive Principles of
State Policy are considered as the conscience of the Constitution, and
people as a whole should not only see them in letter but they should be
the spirit of their day-to-day living.
Victor Hugo says that “An invasion of armies can be resisted but
not an idea whose time has come.” Changes may be patent or latent
ig as or felt as the case may be. They can be swiftor slow
or gradual. Sometimes without knowing about the changes people
will be participating in |or subjected so Toa Many RaesomTTT he
process of change in relation to social transformation. Desirability
or compulsion, identifying and designing suitable legal policy, its
justification consistent with people's aspirations and ideals, extent, level
and norms of change through law are vital and important factors, that
mould, change management processes. In addition to the provisions
contained in the Constitution of India including the amendments
made from time to time, several laws are made by the Union of India
and States aiming at and intended to bring about social change
consistent with the constitutional philosophy and the goal set
out
— However, the role of law cannot be seen in isolation. Moreover,
+ peng lawmerely legally is not enough. Adopting law emotionally
; es the purpose of law better. In addition to appropriate law,
A
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Foreword Aw Mw 2 7 a geile Ix
sound system, sffong political will and commitment, for successful,
fruitful social #ransformation, coordinated and concerted efforts are
required to bémade by vigilant Civil society,
dedicated NGOs, honest
and committed law enforcing agencies, proactive judiciary and
meaningful and positive media.
The Judiciary
in India, time and again, has drawn from
constitutional provisions particularly Arti 14 and_21
cles to address
various issues relating to social relationships between the mainstream
and marginalised sections consequently. “Public Interest Litigation” is
also called “social action litigation”. It may be said that the courts in
India have developed fairly effective legal system which is constantly
striving to be more inclusive and empathetic towards issue of social
not as a charity, but as an obligation. Modernisation, Privatisation,

Liberalisation and Globalisation have made an impact on farms and
factories, environment, justice delivery system and democracy. At the
grass root level, particularly in the rural area, there is a cry of social
and economical justice in order to have a real social transformation and
change of mind consistent with the Constitution and relevant laws.
Dr. Bhat’s book is divided broadly into four parts running into
twenty chapters namely—general, multiculturalism and _ social
transformation, social transformation through empowerment and
modernisation and social transformation. Under each part, different
aspects are considered with specific focus and attention relevant to
that part. This book mirrors Dr. P. Ishwara Bhat’s hard work, deep
commitment, scholarship and learning, research, critical analysis
based on comparative study, facts and the experience gained. It is
both a classic and authority on the subject dealt with, and it provides
insight, provocation and scope for further research, study, criticism
and analysis in the years to come. The author has taken great pains to
make the book serve the real purpose sought to be achieved including
updating. Even when the book was under print he has made efforts
to take note of changes and amendments and has incorporated them.
I have good reasons to think that this book will benefit students,
teachers, general public, lawyers, judges, legislators, social activists,
NGOs, administrators and policy makers to move forward suitably and
the
quickly in the area of social transformation to meet the demands of
time and situations keeping in view the prevailing social conditions.
facts
The author has taken lot of pains in collecting and analysing
laws,
and figures, judicial pronouncements of various courts, relevant
x Law and Social Transformatieeon in India
S
Mi a E
articles and books of eminent writers has offered his critical and useful
comments. These things have added further value to the book in terms
of utility, accuracy and authenticity. dipss- byt
In the last chapter he has given conclusions. He finds it difficult to
evolve definite and final conclusion about India’s experience as regards
the relationship between law and social transformation in wide array x, 7
of topics touching upon various dimensions. He says, “Since(social 0%US
transformation with a commitment to enlarge the people’ ess to} ee
human rights and welfare is vital for a constitution the
analysis gains immense significance.” He goeson to say, “Legal system’s
position as a purposeful enterprise for promotion of justice—social,
economic and political—logically compels it to play an instrumental
and creative role in the social transformation task. Social transformation
itself is a value loaded concept aiming at social comforts, harmony and
development.” He adds that “The Constitution of India, befitting to
the legacy of national struggle for freedom and with high aspiration
to build the nation on the pedestal of social justice, has meaningfully
centre staged justice in the governance. Sensitising and monitoring
power—legal, economic and social, individual or collective—in the
beacon light of constitutional values have tremendous potentially and / a
responsibility.” LZ
Dr. Bhat rightly says, alge Sxvenencs on.BuyMeueuca etme? TA
been uniand quevaluable because of itsmulti-dimensional character, °/
and competence to hold the society together with -and- >
solidarity in spite of emotional trouble spats and_problematic issues.”
It is true that empowering the vulnerable is a vital strategy of social
transformation. He adds that “Rule of law, accountability, human \/
rights values and welfare form important aspects of democracy and 0
make great contribution to social transformation. The Panchayati Raj - df
institution has_great_ potentialities for preparing and involving th¢ AW
peopl inethe social transformation task at the grass root level”
In this foreword I have only indicated about the worth and work
of Dr. P. Ishwara Bhat and have given a glimpse of the book in brief.
Looking to the contents, quality, treatment, exposition, substa
nce and
intrinsic value of the book, I hope that it will be widely read and be
of benefit at all levels. If this happens in great measure,
Dr. P. Ishwara
Bhat’s efforts stand duly rewarded. I appreciate and congr
atulate Dr.
Bhat for writing this book. Let many more such books come out from
him in the years to come and add to the wealth of know
ledge in the
domain of law.
\
Justice Dr. Suivaray V. Pati

PREFACE
OCIAL TRANSFORMATION is a wide and complex subject

reflecting fundamental changes in society. The very structure and
method offunctioning of societ undergoes metamorphosis,in this
process. Inequalities in status and class and discriminatory treatments
linked to cultural identities or patriarchic considerations get altered.
The modern world is exposed_to stupendous changes, to which
and other times marginal. Some changes are astounding and beyond
our imagination; some are reasonably predictable and adjustable;
some are visible and clear, while others are invisible but can be felt.
Many a times, we participate either consciously or unconsciously
in the change phenomenon without knowing fully well about its
implications and results. Yet other_times,.change is imposed_on our
shoulders and against ourlikings. Situations of our silent spectatorship
to change cannot also
be ruled out. Human mind’s complacency with
existing order might initially inhibit the change process; but realising
the indispensability of the new path it might embrace it whether with
grouse or pleasure.
In planning, systematising and managing social transformation one
of the dependable means that can be employed in democracy 1s the
formal instrument of law. Law’s interface with social transformation
is worthy of deeper understanding, as one can know from such probe
mre
XII Law and Social Transformation in India
ple
accomplishment. But social transformation is a product of multi
t,
factors. Social action, people’s participation,-economic developmen
group behaviour, efforts of social organisations, democratic policy
making, national goals and the functioning of legal systems initiate
and effectuate the transformation process. Hence, law’s role cannot be
looked at in isolation. Its roots are spread over historical, economic,
ae
transformation. The Tughlaqian question, “How to split branches in

the stars before rooting firm in the earth?” warns about the need to
have down-to-earth approach of preparing for the change.
As the study is with reference to India, the Indian society’s prominent
features and peculiar conditions need to be properly addressed in the
course of discussion.4tis-to be stated that India is |basically a hierarchic
and traditionbound society withrelics of patriarchy
and communitarian
outlook, It is a vast society with multiplicity of religions, languages,
and ethnic groups spread oversea wide geographical area, exposed to
the challenges of modernisation. This has added much complexity and
colour to the cultural landscape, making the law-society interaction
highly sensitive which the changée-managers often fail totake note.
While the legacyof the past has indelible impact upon the present
State, undergoing a great change for a benevolent future is bestowed
in its destiny. Illiteracy, poverty, and inadequate opportunities at the
grass root level stand in contradiction to technological revolution,
enhanced competence for development and global opportunities.
Inspired by the ideals and values of the new age of republicanism and
welfarism, internalising of the desirable changes in day-to-day life is a
task to be assisted, monitored and gently compelled by a legal system.
But modernity is looked with some suspicion by post modernist
critique of social experience about modernisation brought through
individualist, rationalist and uniformity approach. The traditionalist
belief in communitarian, affectionate and pluralist mindset has been
found to be a factor to be indispensably continued. Empowering
the
marginalised sections of society—children, women and the oppressed
classes—is another Strategy in the arsenal of the legal system
for social
transformation. These are all not spheres of smooth change.
Each is
a site of social tension, contested by competing interests
and groups
whether in pursuing status quo or in spearheading
for change. Since
Pee Ue ei
time and space are the two factors that mould the process of change,
using time as a resource for change without postponement of reform,
and making space ready for accepting change are the responsibilities
of an inclusive and progressive society.
The present work puts forward optimistic signs of Indian legal
system’s competence to both lead and follow social transformation
with an admirable commitment to multiculturalism, empowerment
and sober modernism. Amidst diverse approaches about the relations
between law and social transformation it inclines to adopt a holistic
analysis and prefer an activist role for the state and society. Instead
of lawyer’s law analysis it has tried to look into the social dimensions
of important facets of the legal system. Understanding law as a social
phenomenon will not only elevate the role of law in social action and
in its mission of social justice but also rectify its defects and sharpen
its cutting edges. It is this perception of law’s dynamism and social
relevance that has tried to give a thematic unity to otherwise varied
category of subjects for higher legal study.
Exposition of the subject in this work is carried out in four
interrelated parts. Part I contains four chapters. Theoretical
discussion undertaken in Chapter 1 about the concepts, approaches
and mechanisms about law’s relation with social transformation
attempts to give insights about the patterns and constraints of law-
society interactions, which will help in appreciating or evaluating
immense legal developments that are occurring amidst us and having
considerable social consequence. A discussion is also carried on
development, culture, social justice, morality and multiculturalism to
bring out their social dimension in connection with law. Socio-historic
discourse on law’s connection with social transformation (Chapter
2) tries to unravel India’s distinct tradition of collectivism and social
reforms attempted through group efforts and elite leadership. The
problem of balancing between continuity and change in the backdrop
of composite culture, social response to the same through the
instrumentality of law and limitations thereof have been discussed.
Discussion on alternative approaches like Gandhism and Sarvodaya
aims to bring into surface morally inspiring “change of heart theory”
and holistic perception of all-round societal development (Chapter
for
3). In contrast, the incongruence of collective violence, the need
humanist approach and socio-economic solutions to Naxalite uprising
are also pointed out. Understanding the Constitution as an instrument
thrusts
of social transformation (Chapter 4) takes us to its ideological
and change in the
and mechanisms and balancing between continuity
working of socially
basic structure jurisprudence. The background and
and multicultural life
vibrant supreme law in the context of economic
XIV Law and Social Transformation in India
Pg i ma
of the nation provide useful analytical tool for discussing vital matters
in subsequent parts of this work. Fundamental Rights and welfare
ideology emphasise the schemes of empowerment of the vulnerable
for social transformation. The Constitution’s basis for multiculturalism
is also discussed to develop about the contours and parameters within
which social transformation through law may be attempted.
Part II of the book deals with law and society discourse in the
context of multiculturalism. Indian society’s pluralism in the matter of
religion, language, regionalism and ethnicity has posed challenges of
meeting diversities within the framework of national unity. Tradition
of tolerance and mutual assistance has provided rich social resource to
support viable constitutional and legal policy. The problem of identity
preservation at the teeth of modernisation is intricate, to which law
has to lend its balancing force. Integrating the complexities of diversity
with those of social transformation in the realm of law has necessitated
looking into different levels of preparedness of the communities to
convert social mores into legal norms and vice versa. Ethno-cultural
identity issues, conflicts and national integrity questions have found
satisfactory solutions in planned application of federalism, human
rights and welfare measures in the course of social transformation.
There has been a remarkable success of the legal system in synthesizing
and applying the key concepts <::d institutions for a continuous task of -
building harmonious and just social order. The overarching concept of
secularism and its implications for harmonious society, social reforms
and legal means of protecting the minorities are discussed (Chapter
5). The policy of equal language rights, linguistic organisation of
states, dismantling of linguistic hegemonies, centre staging of people’s
language in subordinate courts and in primary education are critically
analysed from socio-linguistic and sociological perspectives in the
backdrop of globalisation (Chapter 6). The social problem of choice of
languages as media and subjects for learning in multilingual society
facing the challenges of modernisation is discussed by analysing the
constitutional and legal development (Chapter 7). How centre staging
people’s language in the functioning of subordinate courts and
retaining English as the language of transaction for higher courts have
proved the competence and limitations of language policy arising from
multilingual situation has also been discussed (Chapter 8). Regional
feeling resulting in region based reservation in access to education
and employment challenging the compatibility of harmonious society
is another factor that law has addressed (Chapter 9). In order to resolve
the problem of indigenous or tribal communities of their isolation,
Doverty and insecurity without effacing their identity but providing
atmosphere of dignified existence with potentiality for development
Preface
E E XV
ee
and joining the mainstream of the society, law has employed an
integrated approach of ensuring to them security, self-government
and social justice (Chapter 10). In the background of modernisation
and globalisation, these different communitarian identities have faced
substantive threats, concerning which law’s response is worth noting.
It is interesting to understand the operation of social characteristics of
diversity with their urge for identity retention undergoing different
levels of social transformation within the parameters of harmonious
society.
Empowerment of the vulnerable sections of society as a method of
benevolent social transformation is the theme of Part III. Empowerment
infuses ability for self-organisation, overcomes subordination, fills
confidence for all-round growth by using special facility given by the
State, and enables better participation in control and use of resources.
Caste as a divisive factor in the society had resulted in inhuman
practice of untouchability, exclusion of opportunities and arbitrary
discriminations. As a means of legal empowerment, state has aimed
at combating against practices of untouchability and supporting the
socially backward classes through special provisions. Sensitive issues
about method of identifying the beneficiaries, extent and types of
special provisions and the spheres in which they shall be carried on
have surfaced in the legal development and sociological and academic
discourse. The contribution of legal strategy in this sphere is analysed
in Chapter 11. The concept of, and means employed for gender justice
in the legal system are discussed (Chapter 12) by focusing on their
expanding strategies and trends. The direction of development in
better protection of women against crimes is analysed with reference
to statutes and decisional law on domestic violence and sexual offences
(Chapter 13). The growth of law from protection of children against
child labour and other exploitative practices to child welfare and
development is also traced (Chapter 14). Linking of social justice plans
to social transformation and their evaluation are the tasks undertaken
in this Part. Balancing between the policy of protective discrimination
and rule of equal opportunity for all has been the mode of ensuring
social justice.
Modernisation as a method of social transformation through the
legal framework is the issue addressed in Part IV. The colonial and
post-colonial legal measures to bring modernity to the Indian society,
while successful in introducing some reforms, have been subject to post-
modernist imperative of balancing between change and continuity in
actual social experience. Constitutional and international dimension
of modernism and law, their application in the field of trade and
e
technology have been studied from the law and society perspectiv
XVI Law and Social Transformation in India
a
e a ne pee
of famil
(Chapter 15). How the deeper and pluralist social tradition
morality
life, commitment to welfare ideology and adherence to
and security cannot be legislated away in the name of modernism,
globalisation and technology is discussed with interesting finding
(Chapter 16). The interaction between law and economic processes
especially in the field of agriculture, environmental protection,
industry and labour has posed some disturbing questions in the
context of globalisation in spite of the avowed constitutional policy
of welfare state (Chapter 17). Reform of the justice delivery system for
avoiding delay, high cost and procedural difficulties and for evolving
people friendly approaches of alternative dispute resolution system
has contributed to the cause of social transformation. Introduction
of plea-bargaining, prison reforms, and victim protection measures
has projected great promise. Public Interest Litigation has emerged
as a strong tool of social change. Chapter 18 discusses these aspects,
bringing again the imperatives of people-centered approach in the
change process. The role of legislative accountability, grass root
democracy, voluntary organisations and democratic participation in
bringing social metamorphosis is increasingly realised during recent
times. It is this mechanism that can establish at people’s level consensus
for harmonious society by absorbing the lessons of multiculturalism,
by supporting the need-based-affirmative actions and by involving
in or satisfactorily responditig to modernisation schemes (Chapter
19). The threads of discussion carried in four prominent parts will be
coordinated to draw conclusions in Chapter 20.
Since the social dimension of law itself is vast, and major spheres
of pluralism, empowerment and modernisation, are traversed in the
course of discussion from the perspective of law-society interaction
and addressing the sites of social tension, the present work inevitably
touches upon a large spectrum of human and social actions. It is
expected to be useful to all those interested in the area as it aims to
give an integrated picture by treating all the materials together. Apart
from being a source material for higher legal study, it is hoped to
inspire further thinking about law and society’s active partnership in
social transformation.
sae ae Hees acknowledge with gratitude the authorities of
Ree ag mee ma ee Professor J. Shasidhar Prasad and
lara Soaratn , sa ak pee for extending sabbatical
Devidas Brftemc: ae 7 ee ; ee CKN. Raja, Professor T.
favauaind anit 7” Se irate ee oS Indira and Professor A.
Prise Wy me cll: - e subject and encouraged me to
, gues and students at Mysore, and other places
Preface XVII
have helped in data collection and kept interest in completion of the
work. I profusely thank all these academicians.
Justice Dr. Shivaraj V. Patil, Former Judge of the Supreme Court of
India has kindly blessed this work with his foreword. His insights about
law’s role in social transformation and vast concern for humanism have
made value addition to the work. Iimmensely thank the Learned Judge
for sparing his valuable time in writing an encouraging foreword.
It is a great pleasure to acknowledge the assistance and incessant
support given by my wife Smt. P. Usha in completion of this work and
in fulfilling other academic assignments. Her persuasion, reminders
and creation of suitable domestic atmosphere have energised me in
producing this work. It thank her immensely. The support given by
my children, Ramya and Ganaraj is also remembered with thanks. I
express my gratitude to my parents, relatives and friends who have
encouraged my academic activities.
Sri Vijay Malik of Eastern Book Co. has not only accepted the project
of publishing the book but also through frequent reminders persuaded
for its completion. For the editorial assistance, excellerit printing and
timely production of the book I am highly grateful to Sri Malik and the
Eastern Book Company.
14 April 2009 P. IsHWARA BHAT

rr AO
BRIEF CONTENTS
FoREWORD VII
PREFACE XI
TABLE OF CASES XXXIII
TABLE OF STATUTES XLVI
CHAPTERS
Part I
GENERAL
TueEory, History, ALTERNATIVES AND THE CONSTITUTION
1 Law and social transformation: a theoretical discussion 1

2 Historical and sociological discourse on law’s role in
social transformation 71
3 Alternatives to legal strategy: Gandhism, Sarvodaya,
Marxism and Naxalism 127,
4 Constitution’s orientation and response to social
transformation 167
Part II
MULTICULTURALISM AND SOCIAL TRANSFORMATION
RELIGION, LANGUAGE, REGION AND ETHNICITY
5 Religion and law 225

XX Law and Social Transformation in India
a ee
CHAPTERS
6 Language and law: towards equality in language
rights? 267
7 Language rights in education 315
8 People’s language as the language of courts:
perspectives, problems and the needed strategies 353
g Regionalism, law and social transformation 381
10 Ethnic pluralism, tribal development and social
transformation: a focus on security, self-
government and social justice 405
Part III
SOCIAL TRANSFORMATION BY EMPOWERMENT
EMPOWERING THE BACKWARD CLASSES, WOMEN AND CHILDREN
11 Caste, law and empowerment of the backward classes 453

12 Constitutional policy and development towards
gender justice 515
13 Crimes against women and law’s response thereto 553
14 Law, child welfare anc. social transformation 605
Part IV
MODERNISATION AND SOCIAL TRANSFORMATION
ConcerT, Famity Law, Economic REFORMS, JUSTICE DELIVERY SYSTEM AND
PARTICIPATIVE DEMOCRACY
15 Modernisation and law 663
16 Family law, modernisation and social transformation —_701
17 Economic development, law and social
transformation: focus on agriculture, pilpaen! and
environment | /3*
18 Reforms in the justice delivery system, modernisation
and law
819
19 Role of democracy, panchayati raj and NGOs in social
transformation through law
887
20 Conclusions 929
_ BIBLIOGRAPHY
941
SuBJECT INDEX
967
DETAILED CONTENTS
FOREWORD VII
PREFACE XI
TABLE OF CASES XXXIII
TABLE OF STATUTES XLVII
CHAPTERS
PartI
GENERAL
Tueory, History, ALTERNATIVES AND THE CONSTITUTION
1 LAW AND SOCIAL TRANSFORMATION: A THEORETICAL

DISCUSSION
1.1 General
12. Law as a social device
134 Legal system as a purposive enterprise
1.4 Social change or transformation?
1.4.1 Meaning and significance
1.4.2. Causes of social transformation
1.4.3 Types of social transformation
1.4.4 Value orientation in social transformation
Law’s relation with social justice
Theoretic models on social transformation
1.6.1 Consensus model
1.6.2 Conflict model
1.6.3 Integrated model
19 Application of the models in the legal realm
XXII Law and Social Transformation in India
O a eae
1 LAW AND SOCIAL TRANSFORMATION (contd.)
1.7.1 Western approach to the models 30
1.7.2 Indian approach to the models: ancient and modern 32
1.8 » Interactions between law and social transformation 35
19 Stability and transformation: law’s dichotomy 39
1.10 Other dichotomies 41
111 Lawand morality: relation in the context of social
transformation 43
1.12 Law’s advantages and limitations in bringing social
transformation 47
1.13. Concept of culture and competence for authoring
transformation 49
1.13.1 Meaning and significance 49
1.13.2 Urges and means towards perfection 50
1.13.3 Culture, social transformation and law 52
1.13.4 A note on Indian culture 54
ewes, 1.13.5 The question of competence to author a change 56
/ 1.14 ) Multiculturalism and social transformation 58
“a5. Law and development 63
1.15.1 Developmental issues and law 63
1.15.2 Law and economics: law as a social investment 66
1.16 Democracy and social transformation 68
1.17 Conclusion 70
2 HISTORICAL AND SOCIOL DGICAL DISCOURSE ON LAW’S ROLE
IN SOCIAL TRANSFORMATION 71
2.1 Preliminary remarks 71
(PF Law and social transformation in ancient India 72
2.2.1 The legal system's social dimension 72
2.2.2 The social concern for justice 75
2.2.3. The approach of collective duties and rights 77
2.2.4 Interpretation of Sruti and Smriti to accommodate social
transformation 83
2.2.5 Interaction between law and custom: implications for social
transformation 86
2.2.6 Dharma and royal ordinance 88
2.3 Socio-legal reforms in medieval India 88
2.3.1 Social order and law at the dawn of Mohammedan conquest 89
2.3.2 State and social reforms during the later medieval period go
2.3.3 Social reformers of medieval period 92
2.3.4 Administration of personal law 93
2.4 Law and social transformation in modern India 94
2.4.1 Colonial law and economic exploitation 94
2.4.2 Application of the Indian law by the British 97
2.4.3. Social reforms, law and the women's question 100
2.4.4 Codification, economic legislation and reforms 111
Detailed Contents
Ee
h Seort XXIII
2 HISTORICAL AND SOCIOLOGICAL DISCOURSE ON
LAW’S ROLE
IN SOCIAL TRANSFORMATION (contd.)
2.4.5 Freedom movement: a great march with social reform ideas 112
2.5 Sociological discourse 118
2.6 Conclusions 125
ee
3 ALTERNATIVES TO LEGAL STRATEGY: GANDHISM,

SARVODAYA, MARXISM AND NAXALISM 127
3.1 Introduction 127
3.2 Gandhism 128
3.2.1 General 128
3.2.2 The Change of Heart Theory 130
3.2.3 Shaping the Indian society 133
3.2.4 Gandhian economics
134
3.2.5 Eradication of untouchability 136
3.2.6 Communal harmony 138
3.2.7. Amelioration of women 138
3.2.8 Gram Swaraj 139
3.3 Sarvodaya 141
3.3.1 Meaning and significance 141
3.3.2Vinoba Bhave and Bhoodan movement 145
3.3.3.
Jayaprakash Narayan'’s idea of total revolution 146
3-3-4Surrender of dacoits 149
3.4 Marxism 151
3.4.1 General 151
3.4.2 » Marxism in India: Parliamentary Left 153
3.4.3. Democratic socialists 154
3.5 Naxalism: causes, course and cure 156
3.5.1 Origin and causes: the West Bengal experience 156
3.5.2 Naxalism in Andhra Pradesh 159
3.5.3 Jayaprakash Narayan’s solution to Naxalism 160
3.5.4 The contemporary account 162
3.6 Conclusions 165
CONSTITUTION’S ORIENTATION AND RESPONSE TO SOCIAL

TRANSFORMATION 167
4.2 Evolution of the Constitution 170
4.2.1 Rawlsian sequence of making a Constitution 170
4.2.2 Polity’s concern and consensus for justice: the flow from
ancient to modern times 17
4.2.3. Anglo-Indian constitutional experiences: the emerging
consensus 173
4.2.4 Indigenous constitutional drafts: the seeds of welfare
democracy 177
4.2.5 Quest for fair adjudicative system 179
4.2.6 )Making ofaConstitution for social transformation 180
XXIV Law and Social Transformation in India
jp EE ARC ELIE IEEE AS Gachka an
CONSTITUTION’S ORIENTATION AND RESPONSE TO SOCIAL
: TRANSFORMATION (contd.) 7
43 The textual basis, persuasion and mechanism for social
transformation 190
4.4 /The context and content of constitutional amendments
/ for social transformation 196
4.4.1 Property amendments 197
4.4.2 Reservation policy and amendments 199
4.4.3 Expanding the welfare canvas 200
4.4.4 Strengthening of democracy 201
4.4.5 Socio-political preparation for amendments 201
4.5 Basic Structure theory: A grand formula to balance
between continuity and change 202
4.6 Contribution of governmental organs to social
transformation 208
4.7 Working of federalism and welfare democracy for social
transformation 213
4.8 Constitutional interpretation as an effective armoury
for social transformation 214
4.8.1 Progressive interpretation 214
4.8.2 Purposive interpretation 215
4.8.3 Original Intention theory 216
4.8.4 Reading techniques and writing strategies 218
4.8.5 Application of int-*national law 220
4.9 Does constitutionalism promote or impede social
transformation? 221
4.10 Conclusion 223
Part II
MULTICULTURALISM AND SOCIAL TRANSFORMATION
5 RELIGION AND LAW 225

5.1 Religious pluralism and social transformation 225
5.2 Is religion a divisive or synthesising factor? 226
53 Secularism asa solution to the problems of religious
conflicts 232
5.3.1 Historical background 233
5.3.2 Constitutional discourse 237
53-3 Sociological discourse 244
53-4 Legislative efforts 246
5.4 Reform of the law on secular lines: problems 248
5.5 Religious minorities and the law 249
5.5.1 Perspectives
249
5.5.2 Problems and solutions
250
5.5.3 Constitutional protection to religious minorities
259
Detailed Contents
oa en Tne cal 2a nr rr rrr
5 RELIGION AND LAW (contd.)
5.5.4 Minorities Commission
5.6 Conclusion
6 LANGUAGE AND LAW: TOWARDS EQUALITY IN LANGUAGE
RIGHTS?
6.1 Language planning and social transformation
6:3 The unifying and divisive features
6.3 Equal language rights of all for linguistic justice
6.3.1 General
6.3.2 The concept
6.3.3. The global trend
6.4 Formation of linguistic states
6.5 Language policy under the Constitution: background
and content
6.5.1 Emergence of the compromise formula
6.5.2 Language of the Union
6.5.3 Regional languages
6.5.4 Language in courts
6.5.5 Special directives
6.5.6 Educational rights
6.5.7 Comments on language policy
6.6 Implications of the Eighth Schedule
6.7 Non discrimination in public employment on grounds
of language
6.8 Use of language in legislative process
6.9 Language hegemony in public forum and the response
of equality 309
6.10 Supervisory role of the commissioner of linguistic
minorities 311
6.11 Authoritative text of the Constitution in Hindi
language 312
6.12 Conclusion 313
7 LANGUAGE RIGHTS IN EDUCATION 315

TA Language and education: mutual assistance for
development and social transformation 315
Ta Mother tongue instruction in primary education:
justifications and perspectives 318
321
73 The constitutional scheme
on
74 Global policies on language in educati 325
sory medium
75 Imposition of regional language as compul
of instruction 331
7.6 Preferential first language policy and compulsory
regional language policy 344
77 Conclusions
351
XXVI Law and Social Transformation in India
GE OF COURTS:
8 PEOPLE’S LANGUAGE AS THE LANGUA
PERSPECTIVES, PROBLEMS AND THE NEE
DED STRATEGIES 353
8.2 Historical overview 356
in
8.3 Comparative conspectus of “language in courts”
other systems 363
8.3.1 Experience of the United Kingdom 364
8.3.2. The Canadian experience 364
8.4 Analysis of law and practice governing language in
courts in India 367
8.4.1 Language in Supreme Court and High Courts 367
8.4.2 Language rights and the due process norms under Articles
21 and 22 372
8.4.3. Language of subordinate courts 373
85 Knowledge system of law in regional language 377
8.6 Conclusions and suggestions 378
REGIONALISM, LAW AND SOCIAL TRANSFORMATION 381
g.1 Introduction 381
9.2 Concept of India as one unit 382
93 Problem of regionalism and impermissibility of
regional barriers 386
9.4 Equality in matters of employment: sons of the soil
theory 389
9.4.1 Specific constitutional provisions 390
9.4.2 Judiciary on regional preference rule in public employment 392
9.5 “Locals only” rule in admission to educational
institutions 395
9.5.1 Fee disparity 396
9.5.2 Domicile requirement as absolute condition 398
9.5.3. Compartmentalisation within the state 399
9.5.4 Institutional preference 401
9.6 Conclusions 403
10 ETHNIC PLURALISM, TRIBAL DEVELOPMENT AND
SOCIAL TRANSFORMATION: A FOCUS ON SECURITY, SELF-
GOVERNMENT AND SOCIAL JUSTICE 405
10.2. A demographic profile 405
10.3 Historical conspectus 407
10.4 Policy choices for ethnic pluralism and the State—tribe
relationship 413
10.5 International human rights regime for elimination of
racial discrimination and protection of indigenous
people 418
10.6 Security 424
Detailed Contents
10 ETHNIC PLURALISM, TRIBAL DEVELOPMENT AND SOCIAL

TRANSFORMATION (contd,)
10.6.1 Security of land
10.6.2 Security offorest dwellers’ right to land
10.6.3 Security from deforestation and environmental pollution
10.6.4 Security from exploitation by moneylenders and others
10.6.5 Security of tradition, custom and identity
10.6.6 Security against insurgency
10.7 Self-government and tribal development
10.8 Social justice measures for tribal development
10.9 Conclusions
Part III
SOCIAL TRANSFORMATION BY EMPOWERMENT
EMPOWERING THE BACKWARD CLASSES, WOMEN AND CHILDREN
11 CASTE, LAW AND EMPOWERMENT OF THE BACKWARD

CLASSES 453
11.2 Empowerment as a method of social transformation 454
11.3 Caste asa divisive factor 456
11.4 Non-discrimination on the ground of caste as a
constitutional policy 465
11.4.1 Background 465
11.4.2 Specific constitutional provisions 467
11.4.3. Meaning of “untouchability” 470
11.4.4 Legislative measures on untouchability 472
11.5 Acceptance of caste as a factor to undo past injustices 485
11.6 Criticisms against caste-based identification of
backwardness 490
11.7 Towards identifying the most deserving beneficiaries:
problems and perspectives 492
11.7.1 General 492
11.7.2 Development of creamy layer test for OBC and SEBC 493
11.7.3 Problem of inner reservation or micro classification amidst
Scheduled Castes 496
11.7.4 Role of National Commission for Backward Classes 509
11.7.5 Thoughts about time limit for curing the side effects 510
11.8 Propriety of caste-based quota in non-governmental
educational institutions and Private Sector 511
11.9 Conclusions 513
12 CONSTITUTIONAL POLICY AND DEVELOPMENT TOWARDS

GENDER JUSTICE 515
12.2 Notions of gender justice in feminist jurisprudence 517
XXVIII Law and Social Transformation in India
S
tw CONSTITUTIONAL POLICY AND DEVELOPMENT TOWARD
GENDER JUSTICE (contd.) 521
123 Forms of gender injustice
1. Exploitation
521
521
2. Marginalisation
3. Powerlessness 522
4. Cultural imperialism 522
5. Violence 522
12.4 Empowerment: the concept and method 523
125 International human rights for women 525
12.6 Historical background 528
127 Relevant constitutional provisions and developments
for gender justice - 532
12.7.1 Equality 532
12.7.2 Right to dignified life 537
12.7.3 Right to maintenance 538
12.7.4 Habeas corpus for women’s protection 539
12.7.5 Procedural due process 540
12.7.6 Rehabilitation of prostitutes and their children for a
dignified life 541
12.7.7 Combating against sati and dowry death—Constitution’s
support 543
12.7.8 Female foeticide and the Constitution 545
12.7.9 Constitutional policy against rape 547
12.7.10 Control over por.1tography 547
12.7.11 Protection from abuse of religious freedom 548
12.7.12 Right to constitutional remedy 548
12.7.13 Directive Principles of State Policy and women 548
12.7.14 Fundamental duties and gender justice 550
12.7.15 Democratic participation and reservation for women 551
12.8 Conclusion 552
13 CRIMES AGAINST WOMEN AND LAW’S RESPONSE THERETO 553
13.2 Domestic violence 554
133 Legal prohibition of sati 559
13.4 Female infanticide 564
135 Female foeticide 566
13.6 Dowry harassment 572
13-7 Sexual offences 581
13.7.1 Law on rape 582
13.7.2 Outraging the modesty of woman 588
13.73 Kidnapping 589
13.8 Offences against marriage 592
a 13.9 Prostitution and law 593
13.10 Indecent representation of women 595
Detailed Contents XXIX
ee
ee a a
13 CRIMES AGAINST WOMEN AND LAW'S RESPONSE THERETO (contd.)
fie Sexual harassment in workplace
597
13.12 Role of National Commission for women 602
14 LAW, CHILD WELFARE AND SOCIAL TRANSFORMATION 605
tA1 Introduction 605
14.2 Prohibition of child labour 610
14.2.2 Magnitude of the problem 611
14.2.3 Causes 611
14.2.4 International legal norms 612
14.2.5 Domestic Law in India 613
14.2.6 Judicial approach 620
14.2.7 National Programme of Action 624
14.2.8 The role of NGOs and Trade Unions 625
143 Adoption of children and related problems 627
14.3.2 Adoption in personal law 627
:14.3.3. Inter-country adoption 630
14.4 Legal protection against sexual exploitation 640
14.4.1 Child prostitution and law 641
14.4.2 Offences against children under the Indian Penal Code 649
14.5 Children and education 651
14.5.1 Human right dimension 651
14.5.2 Constitutional development 651
14.5.3 Attempts to bring right to education statute 654
14.5.4 Administrative measures 658
14.5.5 Improving the quality of education 660
Part IV
MODERNISATION AND SOCIAL TRANSFORMATION
Concert, Famity Law, EconoMic REFORMS, JUSTICE DELIVERY SYSTEM AND
PARTICIPATIVE DEMOCRACY
15 MODERNISATION AND LAW 663

15.1 The concept of modernisation 663
15.2 Constitutional perspective of modernisation 667
153 Modernisation’s international dimensions and social
transformation 673
15.3.1 Modernising impact of international law 674
15.3.2. Modernising effect of international trade law: a focus on
LPG 679
682
Liberalisation and law
685
Privatisation and law
XXX Law and Social Transformation in India
e
PE e
15 MODERNISATION AND LAW (contd.)
15.6 Globalisation and law
15.7 Modernisation, technology and law
15.8 Conclusions
16 FAMILY LAW, MODERNISATION AND SOCIAL

TRANSFORMATION
16.1 Family law’s nature and social basis
16.2 Family as foundational social unit
16.3 Human rights dimensions of family
16.4 Religious and cultural dimensions of family: The
problem of traditionalism versus modernisation
16.4.1 Traditional Hindu family and organic growth of law
16.4.2 Traditional Mohammedan family and organic growth of law
16.4.3 The pre-Constitution policy on family laws in India
16.5 Uniform civil code, the constitutional policy
16.6 Legislative efforts
16.7 From Shah Bano to Danial Latifi and beyond: feminist
strides in maintenance law
16.8 Marriage law, bigamy, divorce and the renewed UCC
debate
16.9 Succession and property rights: towards equality?
16.10 Children’s rights and welfare
16.11 UCC debate revisited: What next in the law?
16.12 Conclusions
17 ECONOMIC DEVELOPMENT, LAW AND SOCIAL

TRANSFORMATION: FOCUS ON AGRICULTURE, INDUSTRY,
AND ENVIRONMENT
17.1 Introduction
17.2 Theoretical underpinnings of economic development
and economic justice
173 Modernisation, agriculture and law: agrarian reforms
173.1 Land reforms: the policy
17.3.2 Abolition of intermediaries
17.3.3. Tenancy reforms
17.3.4 Ceiling on agricultural holding
17.3.5 Judiciary and land reforms
17.4 Industrialisation of agriculture and humanisation
through law
17.4.1 Rural indebtedness and law
17.4.2 Seeds, plant varieties and farmers’ rights
17.4.3 Law on irrigation, fertilisers, and insecticides
17.4.4 Law on agricultural marketing
17.4.5 WTO and Indian agriculture: Challenges
17.4.6 Legal protection of agricultural labour and the Nation
al
Rural Employment Guarantee Act, 2005
Detailed Contents
17 ECONOMIC DEVELOPMENT, LAW AND SOCIAL

TRANSFORMATION (contd)
17.4.7 National Agricultural Policy, 2000
17.4.8 A note on farmers’ suicide
175 Industrial reform: free enterprise versus state
regulation
17.6 Environmental protection versus development:
modernisation’s dilemma and law
17.6.1 Modernisation’s impact
17.6.2 Concept of sustainable development as the solution
17.6.3 The controversy of large projects and the balancing strategy
17.6.4 Constitutional orientation for balancing approach
17.6.5 The thrust in legislative framework for balancing task
17.6.6 Specific principles of balancing
17-7 Conclusions
18 REFORMS IN THEJUSTICE DELIVERY SYSTEM,
MODERNISATION AND LAW
18.1 Introduction
18.2 Expanding the rights of the accused persons 821
18.3 Plea-bargaining 825
18.3.1 The concept 825
18.3.2 The pros and cons
18.3.3 The Indian development
18.3.4 The Statutory Scheme
18.3.5 Comments
18.4 Prison reforms
18.4.1 Historical and statutory development
18.4.2 International human rights norms, judiciary and the change
18.4.3 The problem of overcrowding
18.4.4 Limit on solitary confinement and handcuffing
18.4.5 Sanitation, health and human rights
18.4.6 Prison labour and wages
18.4.7 Towards reformation of prisoner
18.5 Justice to victims of crimes
18.5.1 Concept and background
18.5.2 Legislative scheme for victim compensation
18.5.3 Victim compensation under the Constitution
18.5.4 Law Commission and Committee reports on victim
compensation
18.5.5 Victim's right to participation in criminal proceeding
18.5.6 From purely adversarial system to accusatorial-
inquisitorial system
18.6 Public Interest Litigation as a tool of social
transformation
18.6.1 Genesis and growth of PIL in the social milieu
XXXII Law and Social Transformation in India
18 REFORMSIN THEJUSTICE DELIVERY SYSTEM,

MODERNISATION AND LAW (contd.)
18.6.2 Nature and objectives of PIL
863
18.6.3 Procedural innovations
864
18.6.4 Contribution to substantive law 866
18.6.5 Social benefits and future prospects 868
Alternative Dispute Resolution (ADR) System 871
18.7.1 The concept, background and the means 872
18.7.2, Amendment to Civil Procedure Code 874
18.7.3 Arbitration 876
18.7.4 Conciliation 879
18.7.5 Mediation 881
18.7.6 Lok Adalats ° 882
18.7.7. Consumer grievance redressal forum 883
18.7.8 Grama Nyayalaya 883
18.8 Conclusion 886
19 ROLEOF DEMOCRACY, PANCHAYATI RAJ AND NGOS IN

SOCIAL TRANSFORMATION THROUGH LAW 887
19.2 Democracy’s social dimension 888
193 Role of the legislature in social transformation 891
19.3.1 Evolution of legislature as a forum for social transformation 891
19.3.2 Safeguarding theessential constitutional features — 891
19.3.3. Role in protection of human rights 892
19.3.4 Role in promotion of welfare 894
19.3.5 Role in maintaining national unity and multiculturalism 895
19.3.6 International policies and legislature 898
19.4 Panchayati raj institution as an instrument of social
transformation 898
19.4.1 General 898
19.4.2 Conceptual basis and justifications 899
19.4.3 Historical background go2
19.4.4 Suitability of the scheme for social transformation 906
19.4.5 General comments 914
195 Legal space for NGO functioning towards social
transformation 915
19.5.1 Justifications
915
19.5.2 Types and areas of participation 916
19.6 Right to Information 925
20 CONCLUSIONS
929
BIBLIOGRAPHY
941
Supyect INDEX
967
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XXXIV
Law and Social Transformation in India
243
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Amulya Chandra Banerjee ¥. Corpn. of 438
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216, 230, 244, 651
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Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217 583
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Bhikam Chand v. State, AIR 1966 Raj 142 08
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Table of Cases XXXV
ag
ar
Brown v. Board of Education, 347 US 483: 98 L Ed 873 (1953)
B. V. Krishnamurthy v. Commr,, ILR 1987 (Kant) 2640
=
C.A. Rajendran v. Union of India, AIR 1968 SC 507
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Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare
Assn., (2000) 7 SCC 282 813
Citizens for Democracy v. State of Assam, (1995) 3 SCC 743 824, 840
CITU v. State of Maharashtra, (2004) 3 JT 7 685
City of Richmond v. J.A. Croson Co., 488 US 469 (1989) 507
C.K. Subramania lyer v. T. Kunhikuttan Nair, (1969) 3 SCC 64 850
C.M. Arumugam 1. S. Rajgopal, (1976) 1 SCC 863 457, 464, 504
C. Masilamani v. Idol of Sri Swaminathaswamy, (1996) 8 SCC 525 220
Cohens v. Virginia, 6 Wheaton 264 (1821) 168
C.O.K. Reddy v. C.PV. Lakshamma, AIR 1976 AP 43 729
Common Cause, A Regd. Society v. Union of India, (1998) 9 SCC 367 893
Commr., Hindu Religious Endowments v. Laxmindra Thirtha Swamiar of
Shirur Mutt, AIR 1954 SC 282 227
Consumer Education & Research Centre v. Union of India, (1995) 3 SCC 42 861
C. Thekkamalai v. State of T.N., (2006) Cri LJ 1997 (Mad) 584
Danial Latifi v. Union of India, (2001) 7 SCC 740 220, 249, 538,
550, 705, 722, 895
Danial Latifi v. Union of India, ILR (2001) Kar 5289 218
Dattatraya Motiram More v. State of Bombay, AIR 1953 Bom 311 534
D.AV. College v. State of Punjab, (1971) 2 SCC 261 288, 332
D.AY. College v. State of Punjab, (1971) 2 SCC 269 322
D. Bhuvan Mohan Patnaik v. State of A.P., (1975) 3 SCC 185 837, 838
Deepal Girishbhai Soni v. United India Insurance Co. Ltd., (2004) 5 SCC
385: 2004 SCC (Cri) 1623 850
Deivanai Achi v. Chidambaram Chettiar, AIR 1954 Mad 657 730
Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1SCC 14 541, 584, 852
Delhi Science Forum v. Union of India, (1996) 2 SCC 405 685
Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220 585, 650
Dhannalal v. Kalawatibai, (2002) 6 SCC 16 819
Dina Ji v. Daddi, (1990) 1 SCC 1 630
Dinesh Kumar (Dr.) v. Motilal Nehru Medical College, (1985) 3 SCC 22 401
Dinesh Kumar (Dr,) v. Motilal Nehru Medical College, (1986) 3 SCC 727 401
Distt. Council of United Khasi and Jaintia Hills v. Sitimon Sawian, (1971) 3
SCC 708 426
DX. Basu v. State of W.B., (1997) 1 SCC 416: 1997 SCC (Cri) 92 822, 841, 850
D.N. Chanchala v. State of Mysore, (1971) 2 SCC 293: AIR 1971 SC 1762 400
396
D.P. Joshi v. State of M.B., AIR 1955 SC 334
756, 866
D.S. Nakara v. Union of India, (1983) 1 SCC 305: 1983 SCC (L&S) 145
601
D.S. Grewal v. Vimmi Joshi, (2009) 2 SCC 210
227
Durgah Committee v. Syed Hussain Ali, AIR 1961 SC 1402
Dwarkadas Shrinivas v. Sholapur Spg. & Wvg. Co. Ltd., AIR 1954 SC 119 ss
Emperor v. Ram Dayal, ILR (1913) 36 All 26
XXXVI
Law and Social Transformation in India
561
Emperor v. Vidyasagar Pande (1928) 8 Pat 74
of Karnataka, (1994) 1
English Medium Students Parents Assn. v. State 318, 319, 347
SCC 550
13, 195,
EV. Chinnaiah v. State of A.P., (2005) 1 SCC 394 213, 470, 496
1 SCC 568 863
Fertilizer Corpn. Kamgar Union 2. Union of India, (1981) 607
Flemington v. Smithers, (1826) 2C & P 292
877
Food Corpn. of India v. Joginderpal Mohinderpal, (1989) 2 SCC 347 310
Ford v. Quebec, (1988) 2 SCR 712 863
1 SCC 100
Forward Construction Co. v. Prabhat Mandal (Regd.), (1986) 219
U.T. Delhi, (1981) 1 SCC 608
Francis Coralie Mullin v. Administrator,
538
Fuzlunbi v. K. Khader Vali, (1980) 4 SCC 125: 1980 SCC (Cri) 916
832
Ganeshmal Jashraj v. Govt. of Gujarat, (1980) 1 SCC 363
2 SCC 504 484
Gangula Ashok v. State of A.P., (2000)
279
Garcia v. Gloor, 618 F 2d 264 (5th Cir. 1980), cert. denied, 449 US 1113 (1981)
1990 Supp SCC 709 549
Gaurav Jain v. Union of India,
Gaurav Jain v. Union of India, (1997) 8 SCC 114 45, 221, 542, 543,
595, 605, 642,
644, 646, 651, 867
Gehohe-E-Miran Shah v. Govt. of A.P., AIR 1992 AP 357 243
General Secy., Linguistic Minorities Protection Committee 2. State of
Karnataka, ILR 1989 Kar 457 (FB) 344, 383
Gian Kaur v. State of Punjab, (1996) 2 SCC 648 44
Girdhar Gopal v. State, AIR 1953 MB 147 534
Githa Hariharan v. RBI, (1999) 2 SCC 228 218, 249, 536, 705, 745
Gobind v. State of M.P., (1975) 2 SCC 148 218
Govind A. Mane v. State of Maharashtra, (2000) 4 SCC 200 400
Govt. of A.P. v. P.B. Vijayakumar, (1995) 4 SCC 520: 1995 SCC (L&S) 1056 534
Griswold v. Connecticut, 381 US 479 (1065) 703
Groener v. Minister for Education, 19 $9, ECR 3967 330
Grutter v. Bollinger, 156 L Ed 2d 304: 539 US 306 (2003) 507
Gujarat University v. Krishna Ranganath Mudhokar, AIR 1963 SC 703 213, 331
Gulam Abbas v. State of U.P., 1986 Supp SCC 487: AIR 1986 SC 1017 243
Gurbachan Singh v. Satpal Singh, (1990) 1 SCC 445: 1990 SCC (Cri) 151 580
Gurdev Singh v. State of H.P., AIR 1992 HP 76 843
Guru Nanak Foundation v. Rattan Singh and Sons, (1981) 4 SCC 634 873
Gurupad v. Hirabai, (1978) 3 SCC 383 737
Hadibandhu Das v, Distt. Magistrate, Cuttack, AIR 1969 SC 43 373
Haji Usmanbhai Hasanbhai Qureshi v. State of Gujarat, (1986) 3 SCC 12 786
Haneefa v. Pathummul Beevi, 1970 KLT 512 727
Harbhajan Kaur v. Taranjit Singh, (1985) 1 HLR 635 (P&H) 581
Hari Chand Sarda v. Mizo District Council, AIR 1967 SC 829 439
Harikisan v. State of Maharashtra, AIR 1962 SC 911 372
Hari Singh v. Sukhbir Singh, (1988) 4 SCC 551: 1988 SCC (Cri) 984 849
Har Jas Dev Singh v. State of Punjab, (1973) 2 SCC 575: 1973 SCC (Cri) 895 373
Harvinder Kaur v. Harmander Singh, AIR 1984 Del 66 537 731
Haryana Financial Corpn. v. Jagdamba Oil Mills, (2002) 3 SCC 496 671
Hinch Lal Tiwari v. Kamala Devi, (2001) 6 SCC 496 816
Hindi Hitrakshak Samiti v. Union of India, (1990) 2 SCC 352 333, 347
Lal v. v. S State (Govt. of NCT), Delhi,i (2003) 8 SCC 80:; 2003 SCC (Cri) 2016
Hiraira Lal 578
H.L.M. Biri Works v. STO, AIR 1959 All 208 309
Hussainara Khatoon (II) v. State of Bihar, (1980) 1 SCC 91 219
Hussainara Khatoon (III) v. State of Bihar, (1980) 1 SCC 93: 1980 SCC (Cri) 35 823, 825, 830
Ibrahim Ahmad Batti v. State of Gujarat, (1982) 3 SCC 440: 1983 SCC (Cri) 66 373
_ Inder Puri General Store v. Union of India, AIR 1992 J&K 11 854
Inder Raj Malik v. sunita Malik, 1986 Cri LJ 1510 (Del) 579
Indian Express Newspapers v. Union of India, (1985) 1 SCC 641 926
Table of Cases XXXVII
a
So.
a SES
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1
P 68, 206, 207
Indra Sawhney v. Union of India, 1992 SCC (L&S) Supp 1: 1992 Supp (3)
SCC 217 199, 216, 218, 259,
487, 489, 490,
494, 49 , 535, 866
Indra Sawhney v. Union of India, (2000) 1 SCC 168: 2000 SCC (L&S) 1 pe eg pe 495
Indrwati v. Union of India, (1991) 1 Cr LJ All
579
LR. Coelho v. State of T.N., (2007) 2 SCC 1 207, 215
Irwin v. Dearman, (1809) 11 East 23 607
Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697 325, 395, 670
Jagadish Saran (Dr.) v. Union of India, (1980) 2 SCC 768 401
Jagdev Singh Sidhanti v. Pratap Singh Daulta, AIR 1965 SC 183 322
Jai Singh v. Union of India, AIR 1993 Raj 177 479, 484
Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh, (1999) 3 Mah LJ
694: 1999 Cri LJ 3846 (Bom) 722
Jaladhar Chakma v. Commr., Aizawl, AIR 1983 Gau 18 438
Janakiram Chetty v. Nagamony Mudaliar, ILR (1926) 49 Mad 98 708
Jarnail Singh v. State of Rajasthan, 1972 Cri LJ 824 (Raj) 583
Jasbhai Motibhai Desai v. Roshan Kumar, (1976) 1 SCC 671 864
Javed Niaz Beg v. Union of India, 1980 Supp SCC 155: 1980 SCC (L&S) 473 276, 302, 306
Javed v. State of Haryana, (2003) 8 SCC 369 46, 912
Jayanti Rani v. State of W.B., 1984 Cri LJ 1535 (Cal) 583
Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp (1) SCC 596 207, 772
Jinish Lal Sah v. State of Bihar, (2003) 1 SCC 605: 2003 SCC (Cri) 395 591, 650
John Vallamattom v. Union of India, (2003) 6 SCC 611 40
Jorden Diengdeh v. S.S. Chopra, (1985) 3 SCC 62 550
J.S. Mills v. Presiding Officer, LT. (III), AIR 1962 All 240 309
Jt. Women’s Programme v. State of Rajasthan, 1987 Supp SCC 707: AIR 1987
SC 2060 545
Kailash Chand Sharma v. State of Rajasthan, (2002) 6 SCC 562: 2002 SCC
(L&S) 935 213, 393
Kailash Kaur v. State of Punjab, (1987) 2 SCC 631: 1987 SCC (Cri) 431 580
Kalpana v. Surendra Nath, AIR 1985 All 253: (1985) 11 ALR 552 733
Kamala Devi v. Bachulal Gupta, AIR 1957 SC 434 82
Kamata Tiwari v. State of M.P., (1996) 6 SCC 250 585
Kameshwar Singh v. State of Bihar, AIR 1951 Pat 91 197, 217, 772
Kanchan v. Kamalendra, AIR 1992 Bom 493 725
Kanhaiya Lal Sethia v. Union of India, (1997) 6 SCC 573 297
Kanwal Ram v. H.P. Admn., AIR 1966 SC 614 729
Kapoor Investments v. State of Karnataka, ILR 1989 Kant 183 310
Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh, 2000 Cri LJ
3560 (Bom) (FB) 722
Karimbil Kunhikoman vz. State of Kerala, AIR 1962 SC 723: 1962 Supp (1)
SCR 829 : 198, 217
Kasambhai ¥. State of Gujarat, (1980) 3 SCC 120 832
Kashinath G. Jalmi (Dr.) v. Speaker, (1993) 2 SCC 703 864
K.C. Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714: AIR 1985
SC 1495 488, 491
K. Duraisamy v. State of T.N., (2001) 2 SCC 538 402
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
198, 202, 203, 215, 216, 219, 549, 772, 860
Khajeh Suleman v. Salimullah, AIR 1922 PC 107 99
Khatri (I) v. State of Bihar, (1981) 1 SCC 623 865
823, 841, 861
Khatri (II) v. State of Bihar, (1981) 1 SCC 627
; 865
Khatri (II) v. State of Bihar, (1983) 2 SCC 266
Khazan Singh v. Union of India, AIR 1980 Del 60 495, =
1954 Mad 385
Kidangazhi Narayanan Numbudiripad v. State of Madras, AIR
XXXVIII Law and Social Transformation in India
106
King-Emperor v. Vidyasagar Pande, ILR (1928) 8 Pat 74
K. Kunhammed Haji v. K. Amina, 1995 Cri LJ 3371 (Ker) "i
Co., (2000) 7 SCC 201 874, 878
Konkan Rly. Corpn. Ltd. 2. Mehul Constructions 242, 243
K. Reghunath v. State, AIR 1974 Ker 48
837
Krishan Lal v. State of Delhi, (1976) 1 SCC 655 585
(Cri) 667
Krishan Lal v. State of Haryana, (1980) 3 SCC 159: 1980 SCC 487
K.S. Jayasree v. State of Kerala, (1976) 3 SCC 730
(Cri) 227 373
Kubic Darusz v. Union of India, (1990) 1 SCC 568: 1990 SCC We
Kunjukutty Sahib v. State of Kerala, (1972) 2 SCC 364
922,
K. Zunaideen v. Ameena Begum, (1998) 2 DMC 468 (Mad)
SCC (L&S) 289 861
Labourers, Salal Hydro Project v. State of J&K, (1983) 2 SCC 181: 1983
219, 631, 744,
Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244
861, 867, 893, 922
725
Lalit Mohan v. Tripta Devi, AIR 1990 J&K 7
Lau v. Nichols, 414 US 563 (1974) 279, 327
862
Lawyers Initiative v. State of Punjab,.AIR 1996 P&H 1
637
Laxmi Kant Pandey v. Union of India, 1985 Supp SCC 701
Laxmi Kant Pandey v. Union of India, (1987) 1 SCC 66: 1987 SCC (Cri) 33 638, 888
Laxmikant Pandey v. Union of India, (1991) 4 SCC 33 639
L.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643 203
Lichhamadevi v. State of Rajasthan, (1988) 4 SCC 456: 1988 SCC (Cri) 978 544, 580
Lillykutty v. Scrutiny Committee, SC & ST, (2005) 8 SCC 283 504
Lily Thomas v. Union of India, (2000) 6 SCC 224 728
Lingappa Pochanna Appelwar v. State of Maharashtra, (1985) 1 SCC 479 429
Linghanna v. State of Mysore, AIR 1954 Mys 12 311
L.M. Wakhare v. State, AIR 1959 MP 208 374
Louisiana v. United States, 380 US 145 (1965) 328
Lynch v. Overholser, 369 US 705 (1962) 829
MacDonald v. City of Montreal, (1986) 1 SCR 460 365
Madanlal Ramchandra Daga v. State of “faharashtra, AIR 1968 SC 1267 830
Madan Mohan Mannavz. Chitra Manna, AIR 1993 Cal 33 732
Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125 218, 220, 249, 442,
536, 538, 702, 705, 723, 796
Madhu Limaye v. Ved Murti, (1970) 3 SCC 739 368
Madhusudan Singh v. Union of India, (1984) 2 SCC 381 772
Magan Mehrotra v. Union of India, (2003) 11 SCC 186 402
Mahadeb Jiew v. B.B. Sen, AIR 1951 Cal 563 534
Mahe v. Alberta, (1990) 1 SCR 342 2
M.A. : Kuttappan v. a E. Krishnan Na yanar, (2004) 4 SCC 231:: 2004 SCC (Cri)i 1073 i
484
Malerkotla Municipality v. Mohd. Mushtaq, AIR 1960 Punj 18 594
Manchegowda ¥. State of Karnataka, (1984) 3 SCC 301 429
Maneka Gandhi v. Union of India, (1978) 1 SCC 248 217, 354,
= . 372, 537, 821
angala v. State of Maharashtra, AIR 1979 Bom 282 476, 483
Mangilal v. State of M.P., (2004) 2 SCC 447: 2004 SCC (Cri) 1085 849
Manjamma v. S.N. Suryanarayana Rao, (1985) 1 Kar LJ 104 375
Manohar Joshi v. Nitin Bhaurao Patil, (1996) 1 SCC 169 247
Marbury v. Madison, 2 L Ed 60: 5 US (1 cR) 137 (1803) 217
Marchand v. Simcoe County Board of Education, (1986) 29 DLR (4th) 596 329
Marri Chandra Shekhar Rao v. Dean, Seth, G.S. Medical College, (1990) 3 SCC 130 534
Mary Roy v. State of Kerala, (1986) 2 SCC 209 741
Masumsha Hasanasha Musalman ¥. State of Maharashtra, (2000) 3 SCC
557: 2000 SCC (Cri) 722 484
Mathura Prasad v. State of Bihar, AIR 1975 Pat 295 308
Matungini Gupta v. Ram Rutton Roy, ILR (1892) 19 Cal 289 107
M.C. Mehta (Calcutta Tanneries Matter) v. Union of India, (1997) 2 SCC 411 865
Table of Cases XXXIX
So RR
M.C. Mehta (Child Labour Matter) v. State of T.N., (1996) 6 SCC 756: 1
SCC (L&S) 49 pee 619, 620,
651, 652, 867
M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388
815
M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213
219
M.C. Mehta v. State of Orissa, AIR 1992 Ori 225 673
M.C. Mehta v. Union of India, (1987) 1 SCC 395 219
MCC. Mehta v. Union of India, (1987) 4 SCC 463 816
M.-C. Mehta v. Union of India, (1992) 1 SCC 358 651
M.C. Mehta v. Union of India, (2004) 12 SCC 118 811, 813
Meacher v. Meacher, (1946) 2 All E R 307 554
Meera Kanwaria v. Sunita, (2006) 1 SCC 344 504
Metro Broadcasting, Inc. v. FCC, 497 US 547 (1990) 507
Meyer v. Nebraska, 262 US 390 (1923) 279, 327
M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544 219, 822, 869
Michael H. v. Gerald D., 491 US 110; 105 L Ed 2d 91 (1989) 45
Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591 206, 207
Misbah Alam Shaikh v. State of Maharashtra, (1997) 4 SCC 528 261
M. Ismail Faruqui (Dr.) v. Union of India, (1994) 6 SCC 360 237, 244
M. Nagaraj v. Union of India, (2006) 8 SCC 212 24, 199, 208,
212, 214, 249, 455, 668
Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 249
Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556: 1985 SCC
(Cri) 245 538, 550, 720, 721
Mohd. Aslam v. Union of India, (1995) 1 SCJ 152 243
Mohd. Aslam v. Union of India, (2003) 4 SCC 1 864
Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287: 1977 SCC (Cri) 496 844
Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731: 1959 SCR 629 669, 786
Mohd. Ibrahim Begam v. Ramzan Begum, (1993) 1 DMC 60 (Mad) 722
Mohini Jain v. State of Karnataka, (1992) 3 SCC 666 209, 397, 651
Moly v. State of Kerala, (2004) 4 SCC 584: 2004 SCC (Cri) 1348 484
Moore v. Michigan, 335 US 155 (1957) 829
Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, 1995 Supp (4)
SCC 286: AIR 1995 SC 2001 242
Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409 47
Moti Ram 2. State of M.P., (1978) 4 SCC 47: 1978 SCC (Cri) 485 372, 823
Moulvi Mohammed v. S. Mohaboob Begum, AIR 1984 Mad 7 627
M.P. Gopalakrishnan Nair v. State of Kerala, (2005) 11 SCC 45 238
MLR. Balaji v. State of Mysore, AIR 1963 SC 649 486
Mr *X’ v. Hospital *Z’, (1998) 8 SCC 296: AIR 1999 SC 495 45
M.S. Grewal v. Deep Chand Sood, (2001) 8 SCC 151: 2001 SCC (Cri) 1426 850
M. Syed Ziaulla v. State of Karnataka, WP 13117/1978 dated 7-2-1979 303
Mukund Martand Chitnis v. Madhuri Mukund Chitnis, 1991 Supp (2) SCC 359 725
Mulakh Raj v. Satish Kumar, (1992) 3 SCC 43: 1992 SCC (Cri) 482 544
Municipal Corpn. of Greater Bombay v. Thukral Anjali Deokumar, (1989)
2 SCC 249 402
Munna 1. State of U.P., (1982) 1 SCC 545 865
Munnoram v. Hariram, AIR 1996 Raj 1 370
Murlidhar Meghraj Loya v. State of Maharashtra, (1976) 3 SCC 684: 1976 :
SCC (Cri) 493 a
Muttu Vaduganadha Tevar v. Dora Singh Tevar, 3 Mad 309 9
N. Adithayan v. Travancore Devaswom Board, (2002) 8 SCC 106 241
Nagarahole Budakattu Hakku Sthapna Samithi v. State of Karnataka, AIR bee
1997 Kant 288
Nair Service Society v. State of Kerala, (2007) 4 SCC1 493, 495
fee Law and Social: Transformation in India
54°
Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424: 1978 SCC (Cri) 236
Nanjamma v. State of Karnataka, 1999 AIHC 3003 (Kar) 738
Narayan Das v. State, AIR 1952 Ori 149 24
33 369
Narendra Kumar v. Rajasthan High Court, AIR 1991 Raj 861
of India, (1999) 8 SCC 308
Narmada Bachao Andolan v. Union
of India, (2000) 10 SCC 664 220, 435,
Narmada Bachao Andolan v. Union
809, 811, 864, 871
228 218, 867
National Textile Workers’ Union v. P.R. Ramakrishnan, (1983) 1 SCC
538
Naurang Singh v. Sapla Devi, AIR 1968 All 412
813
N.D. Jayal v. Union of India, (2004) 9 SCC 362
861
Neeraja Chaudhary v. State of M.P, (1984) 3 SCC 243: 1984 SCC (L&S) 471
Neera v. Kishan Swarup, AIR 1975 All 337 733
N.E. Horo v. Jahanara Jaipal Singh, (1972) 1 SCC 771 465, 503
New India Assurance Co. Ltd. v. Rachaiah Basaiah Ganachari, ILR 2000
Kar 4743: (2001) 3 Kar LJ 135 623
Nidamarti Maheshkumar v. State of Maharashtra, (1986) 2 SCC 534 400
Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 822, 841,
851, 852
Nilima Priyadarshini v. State of Bihar, 1987 Supp SCC 732: 1988 SCC (Cri) 138 368, 539
Niyamavedi v. Government of India Kerala High Court 6th November, 1995 817
Niyamavedi v. State of Kerala, AIR 1993 Ker 262 438, 862
N. Kanakadurga Devi v. Kakatiya Medical College, AIR 1972 AP 83 399
N.M. Kheni v. Manikrao Patil, (1977) 4 SCC 16: AIR 1977 SC 1271 906
N. Vasundara v. State of Mysore, (1971) 2 SCC 22: AIR 1971 SC 1439 398
N. Veerabrahman v. State of A.P., AIR 1959 AP 572 254
Oil & Natural Gas Corpn. Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705 879
Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545 219
Ottawa Separate School Trustees v. Mackell, 1917 AC 62 328
P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537 396
Palaniappa Gounder v. State of T.N., (477) 2 SCC 634: 1977 SCC (Cri) 397 848
Paniben v. State of Gujarat, (1992) 2 SCC 474: 1992 SCC (Cri) 403 544, 545
Pannalal Bansilal Pitti v. State of A.P., (14996) 2 SCC 498 239
Parag Gupta v. University of Delhi, (2000) 5 SCC 684 402
Paras Ram v. State of Punjab, (1981) 2 SCC 508: 1981 SCC (Cri) 516 239, 672
Parimi Mehar Seshu v. Parimi Nageswara Sastry, AIR 1994 AP 92 733
Parkash v. State of Haryana, (2004) 1 SCC 339: 2004 SCC (Cri) 290 590, 649
Parmanand Katara v. Union of India, (1989) 4 SCC 286 219, 866
Paschim Banga Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37 751, 866
Pawan Kumar v. State of Haryana, (1998) 3 SCC 309: 1998 SCC (Cri) 740 579
P. Bhaskara Vijayakumar v. State of A.P., AIR 1988 AP 295 843
P. Bikshapathi v. State of A.P., (1989) 2 HLR 430 (AP) 580
People’s Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301 613, 868, 893
People’s Union for Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC 399 68, 325,
861, 925
People’s Union for Democratic Rights v. Police Commr., Delhi, (1989) 4 SCC 730 865
People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235:
1982 SCC (L&S) 275 210, 549, 616,
861, 862, 865, 867
Pierce v. Society of Sisters, 268 US 510 (1925) 327
Pilani Investment Corpn. Ltd. v. Union of India, AIR 1981 MP 140 207
P.K. Goel v. U.P. Medical Council, (1992) 3 SCC 232: AIR 1992 SC 1475 402
Prabha Dutt v. Union of India, (1982) 1 SCC 1: 1982 SCC (Cri) 41 842
Prabhandhak Samiti v. Zila Vidyalaya Nirikshak, AIR 1977 All 164 353, 364, 369
Pradeep Jain v. Union of India, (1984) 3 SCC 654 300 586, 308, 402
Pradeep Krishen v. Union of India, (1996) 8 SCC 599 ' 438
Pragati Varghese v. Cyril George Varghese, AIR 1997 Bom 349 734
P. Rajendran v. State of Madras, AIR 1968 SC 1012: (1968) 2 SCR 786 399
Table of Cases XLI
eRSa av
P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578

P. Rami Reddy ». State of A.P., (1988) 3 SCC 433 2
Pramod Kumar v. State of U.P., (1989) 2 HLR 421 (All) 580
Pramod Mahto v. State of Bihar, 1989 Supp (2) SCC 672: 1990 SCC (Cri) 206 587
Pratap Misra v. State of Orissa, (1977) 3 SCC 41: 1977 SCC (Cri) 447 583
P. Rathinam v. State of Gujarat. 1994 SCC (Cri) 1163 541
P. Rathinam v. Union of India, 1989 Supp (2) SCC 716 584
P. Rathinam v. Union of India, (1994) 3 SCC 394 44
Pratibha Rani v. Suraj Kumar, (1985) 2 SCC 370: 1985 SCC (Cri) 180 576
Pratul Kumar Sinha v. State of Orissa, 1989 Supp (2) SCC 426 541
Preeti Srivastava (Dr.) v. State of M.P., (1999) 7 SCC 120 199
Prem Chand v. State of Haryana, 1989 Supp (1) SCC 286: 1989 SCC (Cri) 418 587
Prerana v. State of Maharashtra, Cri. WP No 788 of 2002 (Bom) 648
Principal, Guntur Medical College v. Y. Mohan Rao, (1976) 3 SCC 411 464, 504
Priti Parihar v. Kailash Singh Parihar AIR 1987 Raj 140 733
Prof. Ramchandra G. Kapse v. Haribansh Ramakbal Singh, (1996) 1 SCC 206 247
P. Sambamurthy v. State of A.P., (1987) 1 SCC 362 392
P.S. Charya v. State of Madras, AIR 1956 Mad 541 241
P.S. Muthukrishna v. Meenakshi Ammal, (1958) 2 MLJ 82 719
P. Sooryanarayana Shetty v. State of Karnataka, ILR (1999) Kar 4721: (2000)
5 Kar LJ 570 624
P.S.R. Sadhanantham v. Arunachalam, (1980) 3 SCC 141: 1980 SCC (Cri) 649 368
Public at Large v. State of Maharashtra, (1997) 4 Bom CR 171 648
Public Prosecutor v. Ramaswamy, AIR 1954 Mad 258 254
Puran Dai v. Jai Narain, ILR (1882) 4 All 482 82
Puttan v. State of U.P., 1972 Cri LJ 270 (All) 583
P. Vajravelu Mudaliar v. Collector (L&A), AIR 1965 SC 1017 217
Pyarelal v. Secy., L.M.M. Sangh, AIR 1957 MP 26 308
Raghubans v. State, AIR 1972 P&H 117 533
Railway Board v. Chandrima Das, (2000) 2 SCC 465 547, 584, 853
Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549: (1955)
2 SCR 225 209
Rajangam v. State of T.N., (1992) 1 SCC 221: 1992 SCC (L&S) 105 620
Raj Pal v. State, (1989) 1 HLR go (Del) 580
Raju v. State of Karnataka, (1994) 1 SCC 453: 1994 SCC (Cri) 538 584
Rama Murthy v. State of Karnataka, (1997) 2 SCC 642: 1997 SCC (Cri) 386 838, 839, 841
Ramayee v. Muniyandi Konar, ML) Reports (1978) at p. 442 375
Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70: 1978 SCC (Cri) 508 720
Ramesh Chandra Lahoti v. State of Karnataka, ILR (2005) Kar 4030 790
Ramesh v. State of Maharashtra, AIR 1962 SC 1908 590
Ramesh Yeshwant Prabhoo (Dr.) v. Prabhakar Kashinath Kunte, (1996) 1
SCC 130 247, 548
Ram Jawaya Kapur ¥. State of Punjab, AIR 1955 SC 549: (1955) 2 SCR 225 194
Ramji Lal Modi v. State of U.P., AIR 1957 SC 620: 1957 SCR 860 239, 254
Ram Kawal Singh v. Ram Kishore Das, ILR (1895) 22 Cal 506 82
Ram Kishan Aggarwala v. State of Orissa, 1976 SCC (Cri) 244 583
45, 548, 596
Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881
SC 632 773
Ranjit Singh v. State of Punjab, AIR 1965
1959 SC 358 ; 227
Ratilal v. State of Bombay, AIR
of Punjab, (1979) 4 SCC 719: 1980 SCC (Cri) 17 846
Rattan Singh v. State
486
R. Chitralekha v. State of Mysore, AIR 1964 SC 1823
854
R. Gandhi v. Union of India, AIR 1989 Mad 205
Re, Balwant Singh, (1996) 3 SCJ 592 24°
of India, ys
Re, Death of 25 Chained Inmates in Asylum Fire in T.N. v. Union
(2002) 3 SCC 31 6 4
Re, Giovanni Marco Muzzu, AIR 1983 Bom 242 he Ae
Re, Kerala Education Bill, 1957, AIR 1955 SC 956
XLII Law and Social Transformation in India
Sspieimectinitesn? wa emo Se
117
Re, Lokamanya Tilak Jubilee National Trust Fund, Bombay, AIR 1942 Bom 61
Re, MP. Dwivedi, (1996) 4 SCC 152 840
631
Re, Rasiklal Chhaganlal Metha, AIR 1982 Guj 193
Reed v. Reed, 404 US 71 (1971) 518
Reema Aggarwal v. Anupam, (2004) 3 SCC 199: 2004 SCC (Cri) 699 576, 592, 593
Regents of the University of California v. Bakke, 438 US 265 (1978) 507
Research Foundation for Science, Technology National Resource Policy v.
Union of India, (2005) 10 SCC 510 816
Re, Vinay Chandra Mishra, (1995) 2 SCC 584 222
Rev. Stainislaus v. State of M.P., (1977) 1 SCC 677: 1977 SCC (Cri) 147 244
Riyat v. London Borough of Brent I.D.S. Emp Law Handbook 28 (1984) 508
Roe v. Wade, 410 US 113: 35 LEd 2d 147 | 45
Romesh Kumar 2. State of Punjab, (1987) 1 HLR 189 (P&H) 580
Roop Chand Adlakha v. DDA, 1989 Supp (1) SCC 116 534
Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840 608
R. Rajagopal v. State of T.N., (1994) 6 SCC 632 336
R.R. Dalavai v. State of T.N., (1976) 3 SCC 748 273
Rudul Sah v. State of Bihar, (1983) 4 SCC 141: 1983 SCC (Cri) 798 824, 841, 851
Rupan Deol Bajaj v. K.P.S. Gill, (1995) 6 SCC 194: 1995 SCC (Cri) 1059 588
Rural Litigation and Entitlement Kendra v. State of U-P., (1985) 2 SCC 431 808
Rural Litigation and Entitlement Kendra v. State of U.P., 1987 Supp SCC 487 865
Rural Litigation and Entitlement Kendra v, State of U.P., 1989 Supp (1) SCC 504 811
Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 537 219, 811
Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248: AIR 1970 SC 564 198
R. v. Mercure, (1988) 1 SCR 234 366
R. v. Tran, (1994) 2 SCR 951 365
Sachidanand Pandey v. State of W.B., (1987) 2 SCC 295 805
Saheli v. Commr. of Police, (1990) 1 SCC 422 : 825, 851
Sahyadri Education Trust v. State of Karnataka, ILR (1988) Kant 2188. 332
Sajjan Singh v. State of Rajasthan, AIR 1 05 SC 845 203
Sakshi v. Union of India, (2004) 5 SCC 518: 2004 SCC (Cri) 1645 588
Salem Advocate Bar Assn. v. Union of India, (2003) 1 SCC 49 875
Salem Advocate Bar Assn. v. Union of India, (2005) 6 SCC 344 ; 875
Samatha v. State of A.P., (1997) 8 SCC 191 217, 220, 424,
426, 448, 756,
757, 809, 861
Sanaboina Satyanarayana v. Govt. of A.P,, (2003) 10 SCC 78 534
Sanjay Suri v. Delhi Admn., 1988 Supp SCC 160: 1988 SCC (Cri) 248 839
Santi Deb Berma v. Kanchan Prava Devi, 1991 Supp (2) SCC 616 729
Santobello v. New York, 404 US 257 (1971)
829
Santosh Kumari v. Surjit Singh, AIR 1990 HP 77 729
Santosh Kumar v. Secy., Ministry of Human Resources Development, (1994)
6 SCC 579 348
Sardar Syedna Taher Saifuddin Saheb z, State of Bombay, AIR 1962 SC 853
241
Sarla Mudgal v. Union of India, (1995) 3 SCC 635
559, 593,
Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90 es as
Sarshwati Bai v. Allahabad Bank Ltd., AIR 1963 All 546
374
Sarwan Singh v. State of Punjab, (1978) 4 SCC 111: 1978 SCC (Cri)
549 849
Satvir Singh v. State of Punjab, (2001) 8 SCC 633: 2002 SCC (Cri) 48
579
Saurabh Chaudri v. Union of India, (2003) 11 SCC 146
402
SBI, Scheduled Caste/Tribe Employees’ Welfare Assn. v. SBI, (1996) 4 SCC
119: 1996 SCC (L&S) 911 499
SBP & Co. v, Patel Engg. Ltd., (2005) 8 SCC 618
Scheduled Caste/Tribe Employees’ Welfare Assn. v. SBI, (1996) 878
4 SCC 119:
™1996 SCC (L&S) 911
499
--epastian M. Hongray v. Union of India, (1984) 1 SCC 339: 1984
SCC (Cri) 87 824
Table of Cases
Sebastian M. Hongray v. Union of India, (1984) 3 SCC 82: 1984 SCC (Cri)
407 824, 851
Security Paper Mill v. R.S. Sharma, (1986) 2 SCC 151
880
Seetharamamma v. Sambasiva Rao, AIR 1964 AP 400
594
Shadi Lal v. Lal Bahadur, AIR 1933 PC 85
708
Shahulameedu v. Subaida Beevi, 1970 KLT 4
727
Shamsher Singh v. State, AIR 1970 P&H 372
534
Shankari Prasad v. Union of India, AIR 1951 SC 458: 1952 SCR 89 772
Shanti v. State of Haryana, (1991) 1 SCC 371: 1991 SCC (Cri) 191 578
Shapiro v. Thompson, 394 US 618 (1969) 389
Shaw v. Hunt, 517 US 899 (1996) 507
Sheela Barse (II) v. Union of India, (1986) 3 SCC 632 865
Sheela Barse v. Secy., Children’s Aid Society, (1987) 3 SCC 50: 1987 SCC (Cri) 458 824
Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96: 1983 SCC (Cri) 353 540, 824
Sheela Barse v. Union of India, (1986) 3 SCC 596: 1986 SCC (Cri) 337 842
Sheela Barse v. Union of India, (1988) 4 SCC 226 862, 865
Shich v. Lyng, 710 F. Supp. 1024 (1989) 279
Shri Janki Devi Bhagat Trust v. Ram Swarup Jain, (1995) 5 SCC 314 301
Shri Krishna v. Gujarat University, AIR 1962 Guj 88 332
Sidhrajbhai Sabbaj v. State of Gujarat, AIR 1963 SC 540 323
S.I. (Jem) Pramodh Singh v. State of J&K, AIR 1995 SC 1964 589
Sivankutty v. S. Komalakumari, AIR 1989 Ker 124 725
S. Mahendran v. Secy., Travancore Devaswom Board, AIR 1993 Ker 42 242, 548
Sobha Hymavathi Devi v. Setti Gangadhara Swamy, (2005) 2 SCC 244 504
Societe des Acadiens v. Assn. of Parents, (1986) 1 SCR 549 365
Soni Devrajbhai Babubhai v. State of Gujarat, (1991) 4 SCC 298: 1991 SCC
(Cri) 959 578
Sowmithri Vishnu v. Union of India, 1985 Supp SCC 137: 1985 SCC (Cri) 325 46, 535, 593
S.P. Anand v. H.D. Deve Gowda, (1996) 6 SCC 734 864
S.P. Gupta v. Union of India, 1981 Supp SCC 87 370, 863, 864
S.P. Gupta v. Union of India, 1981 Supp SCC 87: AIR 1982 SC 149 210
S.R. Bommai v. Union of India, (1994) 3 SCC 1 216, 237
S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126: AIR 2001 SC 2707 215
Sreedhara S. v. State of Karnataka, (2002) 9 SCC 441 394
Sri Adi Visheshwara of Kashi Vishwanath Temple v. State of U-P., (1997) 4 SCC 606 239
Srinivas Krishnarao Kango v. Narayan Devji Kango, AIR 1954 SC 379 628
Sri Sahasra Lingeshwara Temple, Uppinangady v. State of Karnataka,
(2007) 1 Kar LJ 1 3 239, 241
State (Delhi Admn.) v. Laxman Kumar, (1985) 4 SCC 476: 1986 SCC (Cri) 2 580
State of A.P. v. Challa Ramkrishna Reddy, (2000) 5 SCC 712 837
State of A.P. v. P. Sagar, AIR 1968 SC 1379 487
State of A.P. v. Raj Gopal Asawa, (2004) 4 SCC 470: 2004 SCC (Cri) 1306 575, 578
State of Bombay v. Bombay Education Society, AIR 1954 SC 561 325, 331
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84 726
State of Gujarat v. Hon’ble High Court of Gujarat, (1998) 7 SCC 392 838, 842,
843, 845, 846, 864
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534 669, 786, 812
State of Gujarat v. Patel Jayantibhai Chaturbhai, (1992) 2 Guj LR 1472 370
State of Haryana v Prem Chand, (1990) 1 SCC 249 584
State of HP. v. Parent of a Student of Medical College, (1985) 3 SCC 169 864
State of Karnataka v. Appa Balu Ingale, 1995 Supp (4) SCC 469: 1994 See
(Cri) 1762 216, 468, 471,
482, 651, 930
333
State of Karnataka v. Noble Saint Education Society, (1993) 2 Kar LJ 19
; 584
State of Karnataka v. Puttaraja, (2004) 1 SCC 475
nan, (2004) 3 SCC 429: 2004 SCC (Cri) 818 483
State of Kerala v. Chandramoha
Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., (1973) 2 SCC 713 773, 774
State of Kerala v.
491, 499
State of Kerala v. N.M. Thomas, (1976) 2 SCC 310
XLIV
Oe 8 Law and Social Transformation in India
State of Madras v. Champakam Dorairajan, AIR 1951 SC 226 199) 549

State of Maharashtra v. Basantibai Mohanlal Khetan, (1986) 2 SCC 516 198, 207
v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 583, 586, 650
State of Maharashtra
v. Damu, (2000) 6 SCC 269: 2000 SCC (Cri) 1088 239
v. Madhavrao Damodar Patil, AIR 1968 SC 1395 772
State of Maharashtra v. Madhukar Narayan Mardikar, (1991) 1 SCC 57: 1991
SCC (Cri) 1 584
500
State of Maharashtra v. Milind, (2001) 1 SCC 4
737
State of Maharashtra v. Narayan Rao, (1985) 2 SCC 321
State of Maharashtra v. Prabhakar Pandurant Sanzgiri, AIR 1966 SC 424:
(1966) 1 SCR 702 837
State of Maharashtra v. Raj Kumar, (1982) 3 SCC 313: 1983 SCC (L&S) 11 392
State of Maharashtra v. Ravikant S. Patil, (1991) 2 SCC 373 825, 851
State of Missouri v. Holland, 252 US 416: 64 L Ed 641 (1920) 217
State of M.P. v. Babu Lal, (1977) 2 SCC 435 429
State of M.P. v. Ram Kishna Balothia,.(1995) 3 SCC 221 484
State of Orissa v. Chandrasekhar Singh Bhoi, (1969) 2 SCC 334 772
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384: 1996 SCC (Cri) 316 583, 585, 650
State of Punjab v. Iqbal Singh, (1991) 3 SCC 1: 1991 SCC (Cri) 513 544
State of Punjab v. Major Singh, AIR 1967 SC 63 588
State of Punjab v. Ramdev Singh, (2004) 1 SCC 421 547
State of Punjab v. Shamlal Murari, (1976) 1 SCC 719 819
State of Rajasthan v. Ashok Kumar Gupta, (1989) 1 SCC 93 402
State of Rajasthan v. Hat Singh, (2003) 2 SCC 152: 2003 SCC (Cri) 451 564
State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86: 1992 SCC (Cri) 241 544
State of U.P. v. Chandrika, (1999) 8 SCC 638 832
State of U.P. v. Jeet S. Bisht, (2007) 6 SCC 586 216 :
Ph 2 U.P. v. Kaushailiya, AIR 1964 SC 416 a
tate of U.P. v. Pradhan Sangh Kshettra Samiti, 1
State of U.P. v. Pradip Tandon, (1975) 1 SCC 267 ee aa a
State of U.P. v. Vineet Singh, (2000) 7 SCC 262 ie
State of W.B. v. Bella Banerjee, AIR 1954 SC 170 1 tN
State of W.B. v. O.P. Lodha, (1997) 5 SCC 93 ee
State of W.B. v. Shivananda Pathak, (1998) 5 SCC 513 ag
State of W.B. v. Subodh Gopal Bose, AIR 1954 SC 92 oe
St. Stephen's College v. University of Delhi, (1992) 1 SCC 558 sie
Subhas Chandra Bose v. Gordhandas I. Patel, ILR (1940) Bom 2 os
Subhash Kumar ¥. State of Bihar, (1991) 1 SCC 598 Z soi
Sudama Devi v. Commr., (1983) 2 SCC 1
Sudesh Jhaku v. K.CJ., (1996) 62 DLT 563 os
nee Mazumdar v. State of M.P., (1983) 2 SCC 258 ve
uk Das v. UT of Arunachal Pradesh, (1986) 2 S : i
Sumitra Devi v. Bhikan Choudhary, oes eee i : A wit
Sunil Batra v. Delhi Admn., (1978) 4 SCC 494: 1979 SCC (Cri) 155 216, i
Sunil Batra v. Delhi Admn., AIR 1978 SC 1675 seni ees
Sunil Batra (II) v. Delhi Admn., (1980) 3 SCC 488 =
Sunil Gupta v. State of M.P., (1990) 3 SCC 119 eet
ue Kumar v. Usha, AIR 1994 MP 1 6 B40
Bs se Advocates-on-Record Asson. v. Union of India, (1993) on
Supreme Cour i i :
Safed Cede ‘ior eae :Oe ena eege 1g SCE 4og 366
Surjeet Singh v. Union of hae , 2(1981)
ee ay > Sia
2 SCC 359: 1981ie
SCC oar
(Cri)shana
535 837
: a arayan Choudhary v. State of Rajasthan, AIR 1989 Raj 99 ah
Sushil Murmu 7, State of Jharkhand, (2004) 2 SCC 338 672, os
neff
>»witzman v. Elbling, 1957 SCR 285 (Canada)
Table of Cases XLV
a
Tejraj v. State of M.B., AIR 1958 MP 115
Tejsingh v. State, AIR 1958 Raj 169 243
106, 561
Thimmappa ¥. State of Karnataka, (1980) 1 KLJ 398 303
Thippaswamy v. State of Karnataka, (1983) 1 SCC 194: 1983 SCC (Cri) 160 832
T.K. Rangarajan v. Govt. of T.N., (2003) 6 SCC 581: 2003 SCC (L&S) 970 1
T.M.A. Pai Foundation v. State of Karnataka, (1995) 5 SCC 220 ae
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 209, 217, 323,
; 343, 395, 920
T.N. Godavarman Thirumalpad v. Union of India, (2002) 10 SCC 606 432, 808, 811
T.N. Godavarman Thirumulkpad v. Union of India, (1997) 3 SCC 312 865
T.N. Seshan v. Union of India, (1995) 4 SCC 611 69
T.N. Tamil & English Schools Assn. v. State of T.N., (2000) 1 MLJ 577 336, 337
Triloki Nath Tiku v. State of J&K, AIR 1969 SC 1: (1969) 1 SCR 103 501
Trujillo v. Farrell, 503 F 2d 954 328
Trustees of the Tribune Press v. CIT, (1938-39) 66 IA 241 337
T. Sareetha v. T. Venkata Subbaiah, AIR 1983 AP 356 537, 731
Tsering Dolkar v. Administrator, UT of Delhi, (1987) 2 SCC 69 373
Tukaram v. State of Maharashtra, (1979) 2 SCC 143: 1979 SCC (Cri) 381 583, 585
Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584 222, 866
Union Colliery Co. v. Bryden, 1899 AC 580 (PC) 213
Union of India v. Anglo Afghan Agencies, AIR 1968 SC 718 683
Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294 68, 861, 925
Union of India v. Motion Picture Assn., (1999) 6 SCC 150 926
Union of India v Murasoli Maran, (1977) 2 SCC 416 301
University of Madras v. Shantha Bai, AIR 1954 Mad 67 534
Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645 315, 336, 397,
651, 671, 921
Upendra Baxi (I) v. State of U.P., (1983) 2 SCC 308 541, 865
Upendra Baxi (II) v. State of U.P., (1986) 4 SCC 106: 1986 SCC (Cri) 381 542, 595,
644, 824, 865
Urmila Ginda v. Union of India, AIR 1975 Del 115 465, 503
Usha Mehta v. State of Maharashtra, (2004) 6 SCC 264 349
Usman Khan Bahamani 2. Fathimunnisa Begum, 1990 Cri LJ 1364 (AP) 722
Valsamma Paul v. Cochin University, (1996) 3 SCC 545 504
Varkey Devassy v. State of Kerala, 1966 KLT 805 243
Veena Sethi v. State of Bihar, (1982) 2 SCC 583: 1982 SCC (Cri) 511 841, 864, 865, 869
Veerabadhran v. EV. Ramaswamy Naicker, (1959) 2 SCJ 1 254
Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647 219, 678, 816
Venkatachalapati v. Subbarayadu, ILR (1889) 13 Mad 293 99
Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255 240
Vidyadharan v. State of Kerala, (2004) 1 SCC 215 485
Vidya Verma v. Dr. Shiv Narain Verma, AIR 1956 SC 108 539
Vikas v. State of Rajasthan, (2002) 6 SCC 728 581
Vincent Panikurlangara v. Union of India, (1987) 2 SCC 165 866
Vinod Kumar Kejriwal v. Usha Vinod Kejriwal, AIR 1993 Bom 160 725
Virender Gaur v. State of Haryana, (1995) 2 SCC 577 678
Vishaka v. State of Rajasthan, (1997) 6 SCC 241 219, 220, 325,
536, 598, 613,
677, 867, 888, 893
542, 549
Vishal Jeet v. Union of India, (1990) 3 SCC 318: 1990 SCC (Cri) 482
Ee
V.K. Javali (Dr.) v. State of Mysore, AIR 1966 SC 1387
209, 213, 275,
V.N. Sunanda Reddy v. State of A.P., 1995 Supp (2) SCC 235
288, 305, 387, 392
V. Revathi v. Union of India, (1988) 2 SCC 72: 1988 SCC (Cri) 308 593
V. Shankar Ram v, Sukanya, AIR 1997 Mad 394 732
Waman Rao v. Union of India, (1981) 2 SCC 362 cc fiom
507
Washington v. Davis, 426 US 229 (1976)
XLVI Law and Social Transformation in India
Workmen v. Rohtas Industries, 1995 Supp (4) SCC 5 866
Yick Lee v. Hopkins, 118 US 356 (1886) 507
Yniguez v. Arizonans for Official English, 42 F 3d 1217 279, 327
Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321 46, 535, 593
Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158: 2004
SCC (Cri) 999 255, 858
TABLE OF STATUTES
Adoption Act, 1958 (UK) , : 631

Agency Tracts and Land Transfer Act oe1917. 425, 427, 440
Air (Prevention and Control of Pollution) Act, 1981 . . 814, 894
Armed Forces (Speciai Powers) Act, 1958 - 444, 893, 897
Bank Nationalisation Act, 1969. . 894
Bombay Animal Preservation (Gujarat Retondahens Act, 1994. . 894
Bombay Money Lending Licence Act, 1946 . - re AyAs)
Bonded Labour System (Abolition) Act, 1976. . 793, 885, 893

Child Labour (Prohibition & Regulation) Act, 1986 615, 893, 922
Coking Coal Mines (Nationalisation) Act, 1972 . 894
Commission of Sati (Prevention) Act, 1987 239, 893
Companies Act, 1956 (1 of 1956). 922-23
Competition Act, 2002. ; pies. balheog
Consumer Protection Act, 1986. 694, 780, 883, 918, 922
Contempt of Courts Act, 1971 . 893
Contract Labour (Regulation and Abolition) Mee 1970. 7 - ; i . 894
Criminal Procedure Code, 1973 ; - 374-76, 718-19, 847, 895
Dowry Prohibition Act, 1961 33, 42, 574, 577; 581, 922
Drugs and Cosmetics Act, 1940. . 894
Environment (Protection) Act, 1986. .42, 694, 784, 804, 893-94, 919
Equal Remuneration Act, 1976 . 549, 885, 894
Factories Act, 1948 615, 694, 894, 916

Forest Conservation Act, 1980 . 815, 894
Forest Dwellers Act, 2006 . 437
Tekst ; . 894
General Insurance Business (Nationalisation) Act, 1972
177, 189, 280, 426, 903
Government of India Act, 1935 -
. 280
High Court Act, 1861 .
XLVIII Law and Social Transformation in India
Hindu Adoption and Maintenance Act, 1956.

. 46, 718-19, 743, 895
108, 441, 718, 724, 726, 895
Hindu Marriage Act,1955-_-
Hindu Minority and Guardianship Act eee:
718, 745, 895
Hindu Succession (Amendment) Act, 2005
: 738, 895
Hindu Succession Act, 1956 441, 536, 718, 735-36, 895
Immoral Traffic (Prevention) Act, 1956 ieee 239, 247, 596, 641, 893, 916, 923
Indecent Representation of Women (Prohib ition) Act, 1986 596-97, 893
. 111, 543,ee -86,
8,ae 878, 885
Indian Evidence Act, 1872.
815, 894
Indian Forest Act, 1927
MO {07>
Indian Succession Act, 1926
. 880, 894
Industrial Disputes Act, 1948
740, OO
Inheritance Family Provision Act, 1938 .
Karnataka Panchayat Raj Act, 1993 . 900, 913
Legal Services Authority Act, 1996 ‘ . 895
Madhya Pradesh Agricultural Cattle Preservation Act, 1959 . 894

Maternity Benefits Act, 1961 girs ate 894, 916
Minimum Wages Act, 1948 : 615,793, 843, 867, 885, 894
Monopol ies and Restrict ive Trade Practice s Act: 1965 . 694, 894
Muslim Women (Protection of Rights on Divorce) Act, 1986 550, 718, 721, 895
National Rural Employment Guarantee Act, 2005. . 202, 893
Official Languages (Amendment) Act, 1967 . - 907

Official Languages Act, 1963 291, 301, 307
Payment of Bonus Act, 1965 . 894

Payment of Wages Act, 1948 . 894
Prevention of Food Adulteration Act, 1954 916
Protection of Civil Rights Act, 1955 247, 885, 893
Protection of Human Rights Act, 1993 : ; 42, 255, 598, 893
Protection of Women from Domestic Violence Ane 2005 . 42, 556-57, 885, 893, 923
Public Employment (Requirement as to Residence) Act, 1957 301, 390
Sati Pratha Removal Act, 1829. Re e a ee)
Scheduled Castes Scheduled Tribes (Reevention a Atiocitieg het iB" Oot an eS
Scheduled Districts Act, 1874 : 412, 425
Scheduled Tribes and Other Traditional fotesk wellers cReciyatiitioh of
Forest Rights) Act, 2006 : : 432, 897, 899, 908
Societies Registration Act, 1860(21 of 1860) 117, 923
Special Marriages Act, 1954 . 702,730
Tamil Nadu Tamil Learning Act, 2006 sae)
Untouchability (Offences) Act,
Uttar Blak ovision of geCowre
Slaughter Act, 1955 : Be
ha. 894
ae (Prevention and Control of Pollution) Act, 1974 814, 894, 919

idow Remarriage Act, 1856 2 1
Wild Life (Protecti ion) Act, 1972 ct 815, 894
435,
Working Journalists Act, 1955. ari 894
Workmen’s Compensation Act, 1923 . 894, 916
PartI
GENERAL
THEORY, History, ALTERNATIVES AND
THE CONSTITUTION
CHAPTER 1
ee ee
LAW AND SOCIAL TRANSFORMATION:

A THEORETICAL DISCUSSION
ry e enera 1 40
Cor
As a regulator of both social life and individual behaviour through its
distinct institutions and practices, and as adoctri
body of nes
that have
immense social dimension, law cannot affor to be a dormant
d or static
instrument because of its vital social role and linkage with various fac-
ets of human life.* The complexityofworldly changes on the one hand,
andthe enduring values embodied in law on the other, often stand at
loggerheads, and pose difficulties in the management of change. Law
has to find appropriate via media path for balancing the extremes.
The issues of desirability of change, the identification of appropriate
new legal policy to bring the desired change, its justification in terms
of people’s aspiration or paramount ideals, and the determinations
about the extent, level and modality of change through law are greatly
important factors that mould the change management process.
A survey and appraisal of dynamics of the law-monitored and law-
linked social changes in a developing multicultural democracy like
India is a stupendous task looking to vastness of the area and complex-
ities of issues involved. Pluralism in religion, language and ethnicity,
1 Sociolog
Roger Cotterrell, The Law (2nd Edn., Butterworths, London 1992) at 0
ofy
p. 5 views, “Law is a pract of systematic control of social institutions and
craftical *
relations.”; see also, at pp. 2-3; A.R. Blackshield considers law as a form of social control
which aspires to have absolute precision and articulateness of norms and aspires to be
independent of other social controls like education and religion. See “Secularism and
Social Control in the West: The Material and Ethereal” in G.S. Sharma, Secularism: Its
Implications for Law and Life in India (N.M. Tripathi, Bombay 1966) at pp. 22-23.
2 Law and Social Transformation
6 gS
multi-layered caste structure and regionalism have posed severe chal-
lenges to the change management process because of the interplay of
people’s sentiments and goals of an inclusive and harmonious society.
Empowerment of the backward classes, women and children is another
laudable responsibility shouldered by the legal system to build social
integration. The entry of modernisation into various spheres such as
family life, agriculture, industry, environment, justice delivery system
and grass root democracy has witnessed a variety of social experiences
with a common theme of social and economic justice. Thus, theoreti-
cal analysis and practical survey of the law-society interaction become
essential for a systematic study and comprehensive view.
In order to systematise both the study and exposition of this impor-
tant subject of social jurisprudence, a theoretical discussion of the key
concepts like law, legal system, social change or social transformation,
social justice, morality, culture, democracy and development will be
undertaken and the dynamic interrelationship of them will be ana-
lysed in this chapter.
1.2 Law asa social device
A good starting point for law-society discourse is to address into the

purpose of law. Looking to lawinstrument
as a purposeful promoting
benevolent objectives is ver 7much in fitnessofthings when State itself
is considered as born and livingf . “Salutation to thee,
O State, begetter of the fruit of justice and good order” was an ancient
Indian prayer that bestowed respect to state. State’s important instru-
ment, law, was also intended to be a duty-bound soldier to effectuate
primordial commitmentofhuman actions and desires to the cause of
good behaviour and justice. Identification of appropriate objective and
scrutiny on the basis of proper purpose constitute sound teleology,
which has been focused by various schools of law.
Natural-law.philosaphy, in its varied forms and manifestations,
linked law to higher principle to be conformed to. Aristotle envisioned
about perfect society, “We call that legal and just which makes for and
preserves the well-being of the community through common political
SET : Eon oe ican > a ees
action.”> Cicero viewed, “True Taw is right reason in agreement with
? “Atha dharmartha phalaya rajyaya namaha” says Somadeva in Nitivakyamrita at
p. 7; Barhaspatya Sutra, I-43 says, “The fruit olity is the attainment of Dharma,
Artha and Kama’; PV. Kane, History of Diarmasiocire Veliat O00;theEineand
state
had also the responsibility to ensure that people will not fail in their duties; see
Kautilya, iII-1; Sukranitisara, I-67.
* Aristotle,
ristotle, Politics at Ch;
Ch. 1; at Book III, Ch.
Ch. 9 he says, ys, “A “A State exiists for the sake of
good life and iot
for the sake of life only...Political society exists for the sake of noble
actions~and-not ‘of tere companionship” See also, W. Friedmann, Legal Theory (5th
Edn., Universal, New Delhi 1960 rept. 2003) at pp. 11-12.
Law as a social device
3
nature; it is of universal application, unchanging and everlasting; it

summons to duty by its commands, and averts from wrongdoing by
its prohibitions.’* Thomas Aquinas said, “Law, strictly understood,
has as its first and principal es the ordering of the common good.’s
Human being as rational creatures, have divine providence of inclina-
tions to those actions and aims that are proper to them. Immutabilit
of natural law did not obstruct changes in sat einer eae
ticé ceased tobe naturalor new policy
was essential for useful human
activity.° Laws consist of means of achieving these ends. Social con-
tract philosophers rejected arbitrary power over human being’s life,
liberty or possession and permitted the application of only that power
of regulation that preserved and promoted public good of the society? [J Bran rey
Kant thought human community as kingdom of ends, with freedom ohnI
of each person honoured with the freedom of every other person.’ wv:
— reas)
<
According toStammler, law is inevitably implied in the idea
of coop?"
eration and harmonisation of individual purposes with that of society,
Morris held that laws without just quality are doomed
in the Iong run.”
Change within the parameters of basic structure was contemplated by
the modern natural law scholar, John Rawls, when he observed, “Each
generation must not only preserve the gains of culture and civilisation,
and maintain those just institutions that have established, but it must
also put aside in each period of time a suitable amount of real capital
accumulation.”"" John Finnis adheres to natural law as the set of prin-
ciples of practical reasonableness in ordering human life and human
community.” Thus, higher purposes of justice, moral perfection
and
personality development ought to permeate in
legal principle, as natu-
ral law thinking propounds. |
4 Cicero, De Republica, Vol. II at p. 22 extracted in MDA Freeman, Lloyd's Introduction

to Jurisprudence (7th Edn., Sweet & Maxwell, London 2003) at pp. 140-41.
5 St. Thomas Acquinas, Summa Theologica extracted in MDA Freeman, supra, n. 4
at p. 142.
® Ibid, at p. 145.
7 John Locke considers state power as limited to the public good of the society,
and hath no other end but preservation (Two Treatises of Government, Book II, Ch. 11).
Rousseau regards that when the voice of duty replaces physical impulse, and right
replaces cravings of appetite man consults reason and realise compulsion to obey fair
principles (The Social Contract Chs. 5-8).
8 M.D.A Freeman, Llyod’s Introduction to Jurisprudence (7th Edn., Sweet & Maxwell,
Delhi
London 2003) at p. 119; W. Friedmann, Legal Theory (5th Edn., Universal, New
1960, rept. 2003) at pp. 158-61
9 W. Friedmann, supra, n. 3 at pp. 179-80. .
1994) at p. 485.
” RWM Dias, Jurisprudence (5th Edn., Aditya Books, New Delhi
John Rawls, A Theory of Justice at p. 285.
& Maxwell,
2 M.D.A Freeman, Lloyd’s Introduction to Jurisprudence (7th Edn., Sweet
London 2003) at pp. 132-35, 185-91.
Utilitarianism is another school of law, which focused on purpose.

Bentham declared, “Public good ought to be the purpos e
of every
legislator of y
and general utility ought to be the foundation ever
reasoning.” Utility is thequalit ycy of athin
ortenden g t
to preven
logic of utility meant augment-
some evil or procure some good. The
ing the happiness of the community with a formula, “The greatest hap-
piness of the greatest number.” In the domain of criminal law, the utili-
tarian calculus has the competence to evaluate the mainsprings and
secondary levels of pleasures and pains to ensure that medicine is not
worse than a disease. In the field of civil law, the four directives of util-
ity given by Bentham are: security, subsistence, abundance and equal-
ity. He regarded security as paramount because it protected human
expectations, and other directives were dependent on security.
In
contrast to individualist utilitarianism propounded by Bentham,
social utilitarianism put forward by Ihering has more particular focus
on
resolving the conflict of purposes. He starts with a proposition
that between human purpose and human action there is a relation
analogous of cause and effect.”* Mutual relations amidst human beings
call for cooperative furtherance of adjustments between individual
and social purposes. Law is the means. whereby organised purposes of
society are achieved through such balancing. Individual purposes go
beyond
sélf-presérvation,
manifest in economic assertions and yield
to the social purpose by free interplay of individual and social groups.
Associations, which occupy important social space for public benefit,
are born and live for specific purposes and are limited by their con-
tours.’7 The task of each legal system is to secure conditions of social
life as perceived and lived by the people of particular society at par-
ticular time. The interaction of purposes, and production of a new one
out of such interaction reflect mechanism of accommodating changes.
Duguit considered that law’s function was to promote social soli-
darity, and itsvalidity grew from its competence to prevent or rem-
edy social disorder.** Social solidarity meant that since social interde-
pendence is an inescapable fact of human existence, all organisation
and action should be directed towards smoother and fuller coopera-
tion between people. This objective law of social solidarity became
8 Jeremy Bentham, Theory of Legislation, at p. 1; J. Bentham, Of Laws in General
(Ed.
H.L.A. Hart, 1970) at pp. 1-5; M.D.A Freeman, Lloyd's Introduction to Jurisprudence
(7th
Edn., Sweet & Maxwell, London 2003) at pp. 203-06, 238-41.
‘* W. Friedmann, Legal Theory (5th Edn., Universal, New Delhi 1960, rept. 2003)
at
pp. 312-15. .
'° Ibid, at pp. 322-23.
'® Cited in Julius Stone, , The Province and Function of Law, (Universal
i Publish
ishi 2
New Delhi 2000 Indian rept.) at p. 307. d vee ic
” W. Friedmann, supra, n.3 at pp. 236-37.
'° W. Friedmann, supra, n. 3 at pp. 230-31.
Law as a social device
eee 5
supreme and housed in the conscience of people even to limit the leg-
islator’s power.
Roscoe Pound noted the 2oth century shift in juristic thinking from
human wills to human wants and from nature of law to its purpose.
The human desires and expectations were to be balanced by harmo-
nisation by surveying, selecting and evaluating the human wants and
determining their limits as a consequence of equalisation.®.He rec-
ognised a highly interventionist role for law in his theory of social
engineering of interests. The aim of social engineering is to build as
efficient a structure of society as possible, which requires the satisfac-
tion of the maximum of wants with minimum of friction and waste.”°
It involves the balancing of competing interests, Interests are those
claims and wants about which law must do something if the societies
areto endure..He classified interests into (a) individual interests (b)
public interests and (0) social interests. Individual interests consist of
interests of personality (personal liberty), of domestic relations (family
life) and of substance (property and economic rights).** Public inter-
ests consist of interests of the state as juristic person and interests of
the state as guardian of social interests. Social interests in the general
security (safety, health, peace, etc); in the security of social institution
(domestic, religious, political and economic); in general morals; in the
conservation of social resources; in general progress (economic, com-
mercial and technological); and in individual life (self-assertion, oppor-
tunity and conditions of life) reflect generalised claims of social group.
Pound employed the jural postulates of rights and the concept of legal
person as a means to secure the interests.” Regarding the balancing
task amidst interests, he opined that each interest is to be weighed
in the Same plane. For example, one cannot balance individual inter-
est with social interest since decision about balancing is already made.
While inter-plane balancing is inappropriate, inter-plane transfer of
interest is feasible? Roscoe Pound’s interest analysis maps the whole
universe of individual and social life to bring that domain to law’s
supervision. Law is a social phenomenon from this perspective.
has been viewed by modern writers that law enjoys and uses
It
unifying power to contribute towards better social cohesion.* The
ie ae
19 RWM Dias, Jurisprudence (5th Edn., Aditya Books, New Delhi 1994) at p. 430.
0 Ibid, at p. 431.
21 “A Survey of Social Interests” (1943-4) 57 Harvard Law Review 1.
433.
2 RW.M Dias, Jurisprudence (5th Edn., Aditya Books, New Delhi 1994) at p.
2 Ibid.
of Conflict?”
ss ia Barak Erez, “Law in Society: A Unifying Power or a Source
2006) at p. 165;
in Michael Freeman, Law and Sociology (Oxford University Press, Oxford
and the Ground of Law (Cambri dge 2001) at pp. 132-34;
Peter Fitzpatrick, Modernism
1933).
Emile Durkheim (Trs.), The Division of Labour in Society (George Simpson
Law8and Social Transformation
6aa
e ease s ESE ES
conduct it
universal support it gathers for justice, harmonious social
relies
builds through dispute settlement, the democratic discourse it
prob-
upon, and pragmatic way of solutions it devises to numerous
.
lems are all products of the divided society’s search for unifying force
Applicable to all within the society, it strengthens the fibres of commu-
nity life. International human rights law and constitutional law bring
forth great unifying force because of their wider applicability and
uniform norms. An Apex Court decision or a national legislation has
binding effect upon the whole country.” Quite contrary to the unify-
ing function, because of multiculturalism and federalism law is also
a source of diversity. Multiculturalism calls for respect for different
cultures and customs and for ensuring their preservation. Diversity in
personal law, recognition of minority rights in the matter of language
and religion, and coexistence of various local/state legal systems have
limited the ideal of shared values.
Marx found economic foundation for law’s superstructure and
held class conflict as determining the modality of law. His approach
that law is an instrument of oppression warns against misuse of law
and focuses 6n €conomic restructuring of resources and eliminating
exploitations.” The goal of redistribution of resources on the basis
of the maxim “from each according to his capacity, to each according
to "his needs” makes law a pu-posive instrument. His idea that law
should cease to continue with the attainment of this goal has been
found to be utopian. However, even today, when we find that the voice
of the dominant section of the society or socially and economically
powerful group asserts itself as a convenient dictate upon the econom-
ically weak, we are reminded of Marxian condemnation of deviance
from ideals of economic justice. Law’s role in building level playing
field should be strengthened to avert the dominant’s use of medium of
power that capitalises the weakness of the meek.
While the above schools of jurisprudence depict the tasks of law in
their own perspective, there are some (analytical, historical and real-
ist) schools that confine to description of the nature of law from their
respective angles. Austin considers law as command of the sovereign,
whose power of enforcement alone confers validity to law.® Law is
an agency of power, and an instrument of government. But Savigny
views law as a product of common conscience of the community, grow-
ing through organic process of customs rather than descending from
> Ibid.
° Arts. 141 and 245 of the Constitution of India.
27
R.W.M Dias, Ju.isprudence (5th Edn., Aditya Books, New Delhi 1994) at pp. 397-
28.
® Ibid, at pp. 346-47.
Legal system as a purposive enterprise 7
ieee ti‘(‘z “OS
the legislator.” Realists looked to the judicial or legislative process

through which law emerges. These schools make clear the essential
elements that law should possess in order to be effective. Support of
state power as sanction for enforcement of law and general acceptance
of law by the community are the two important characteristics that
help in attainment of the purpose of law discussed above. However
laudable the purpose of law is, in practical life, the weakness in law’s
enforceability arising either from lack of coercive implementation
aee ee
law’s benevolent content, orientatioand
n richness of value as well as
its reach or potentialitymake itan inevitably dependable device for
desirable social change. Law’s functions such as social control, dispute
~resol and sociat
utengine n and its dysfunctions such as rigidity
ioering
and conservative tendencies are linked to its purposive orientation2°
Legal history of any nation would reject the proposition that law shall
remain cold and deadly neutral to purposes. The legal system in which
it is couched should also be geared up to make it effective.
1.3 _Legal system as a purposive enterprise — a

“Every legal system is oriented ——towards certain purposes which it Gas, \
seeks to implement. In this sense, every: legal system is a ‘purpose-_ «
ful enterprise””*", said W. Friedmann. Legal system connotes
a system
that comprehends interrelated_existence
of legal norms, the institu-_
tions and apparatuses for making, implementing and adjudicating the .
Se integration and monitoring of all these components
withina constitutional framework. Kelsen considered such a logical
and integrated system as reflecting the maturity of the legal system
H.L.A. Hart’s analysis of the relation between “primary rule of obliga-
tion” and “secondary rules of recognition” focuses on how commu-
nity’s will to eschew violence and to practice coexistence should com-
plement the modern world’s systematic approach of formulating the
legal rules, bringing orderly changes, and adjudicating the disputes.”
This produces a high degree of institutionalisation of policy-making
and policy implementing function in the legal system. Lawrence
2% Ibid, at pp. 377-78. Puchta wrote, “Law grows with the growth, and strengthens
with the strength of the people, and finally dies away as the nation loses its nationality.”
Hastie (Tr.), Outlines of the Science ofJurisprudence cited by RWM Dias, Jurisprudence (5th
Edn., Aditya Books, New Delhi 1994) at p. 378.
#® Steven Vago, Law and Society (3rd Edn., Prentice Hall, Engelwood Cliff, New
Jersey 1991) at pp. 13-15.
2003) at
7 Ww.iedeatie Legal Theory (Sth Edn., Universal, New Delhi 1960, rept.
pr2i:
2 Ibid, at pp. 16-17.
3 HL.A. Hart, The Concept of Law (1961) at pp. 84-90.
8ee
I Law S Social.
ILLand IE ARE ACE onOD
Transformati
Friedmann looks to the structure, substance and culture of the legal

system, in a comprehensive perspective and regards that legal culture
in the form of climate of social thought and social force determines
how law is used, avoided or abused It is viewed by Fuller that a legal
system, in order to be moral, should possess some essential charac-
teristics that could build bridge of perfect understanding about law
between the lawmaker and the common man? While such adherence
promotes procedural efficacy in law abiding function, by itself it does
not ensure the legal system to imbibe in full-scale the higher principles
of justice, happiness or welfare. The Indian legal system has at its apex
set of constitutional goals of welfare, social justice and harmony that
addresses to the whole reservoir of state power and social energy for
their sincere fulfilment. The Constitution organises, supervises and
controls organs of government, and also aspires for a just social order
with an impressive vision of multicultural welfare democracy,°
Legal systems govern activities in sectors such as State, Market,
Non-profit bodies and Family. State’s relation with rest of the sectors is
to wield the role of protector, regulator and facilitator so that meaning-
ful activities by them may be ensured within the universe of human
rights and welfare principle. The state-individual relations and good
governance mechanisms for ensuring conformity of public bodies
to public law form important parts of the legal system. The fact that
State’s policy itself undergoes change with the changing times, the lat-
est phase being one of Liberalisation, Privatisation and Globalisation,
adds much to the complexity of the change phenomenon.
The second sector, Market, denotes the entire commercial world
_ where economic transactions are carried on for profit. Law regulates
the inputs of business in the form of land (natural resources
and raw
materials), labour, investment, technology and enterprise in order to
ensure fairness to the provider of the input, simultaneously protecting
the interests of society. The outputs of business in the form of avail-
ability of goods, services and
comforts or environmental degradation
give rise to issues relating to protection of the interests of consumers,
of the environment andofthesociety's interests
at large. The process
of business through communication, transportation and information
technology provides another site for legal system’s action. Ranging
* Lawrence Friedmann, American Law (Wiley Eastern Limited, New Delhi 1985)
at p. 7.
* W. Friedmann, Legal Theory (5th Edn., Universal, New Delhi 1960, rept. 2003) at
pp. 18-21. Fuller's explanation about the characteristics of inner morality of law in the
form of generality, promulgation, prospectivity, intelligibility, clarity, constancy and
congruence in application lays emphasis on proper coordination between law and
society. The moral character of Nazi law is debated from this perspective.
% See infra, Ch. 4.
from basic rules of contracttoWTO norms, law moulds the behaviour
of the business community27 In the era of globalisation fortune of busi-
ness is traceable, as Prahlad’States, in the bottom of economic pyramid,
the large mass of poor people, by treating them not as burden of the
society but as resilient and creative entrepreneurs and value conscious
customers* Converting poverty into an opportunity is a creative
business task that would bring poverty alleviation within the market
mechanism. Women’s and workers’ self help groups at the grass root
level provide illuminating examples of changed outlook and practice.
The sphere of not-for-profits, or the Third Sector, is gaining a great
importance recently in the background of state’s slow withdrawal
from welfare acts due to globalisation and market failures owing to
liberalisation. The extent of involvement of the Third Sector in service
delivery for health, education, child care, in management of natural
calamities or disasters and in promotion of culture and public opinion
is assuming great dimension in India as elsewhere?” Social organisa-
tions like societies, cooperatives, trade unions, non-profit companies
and philanthropic foundations in the form of trusts, endowments,
and wakfs constitute this vital sphere that builds up the social capital.
Legal environment governing this sphere has considerable concern for
the purposes of social organisations and of the philanthropic givings.
Society becomes vibrant and dynamic with the creative work of the
Third Sector.
Family life is another intimate area in which inter-spousal and inter-
generation relations within the framework of family are shaped for a
fair position in the matter of continuance of the social institution and
economic and emotional support. Change in pattern of relations and
value additions or subtractions pose tall challenges. When the culture
of obedience to parents, elders and husband was misused by motiva-
tions of exploitation by the patriarchy, determinations to protest and
withstand it within the family institution were influenced by individ-
ualist attitudes enlightened by notions of liberty. From the side of the
legal system this is assisted when norms of human rights and welfare
herald big changes even in tiny families and serve as antidotes to patri-
archy and introduce the elements of justice and fair play.” Thus, the
arena for legal governance comprehends the whole gamut of human
activity that has social significance. sas
Legal system’s efficacy has much depended upon people's partici-
pation in decision making, accountability of government and judicial
7 See infra, Ch. 15. hg
the Bottom of Pyramid (Wharto n School Publishi ng
38 C.K. Prahlad, The Fortune at
Co., Wharton 2006) at pp. 7-9, 16-20.
% See infra, Ch. 19.
40 See infra, Ch. 16.
sii ea a
review of public action. All the sources of law—legislation, precedents

and customs—have substantive but varying degrees of people's partic-
ipation. With five layers of representative bodies ranging from Gram
Pancha to Lok
yatSabha, the democratic structure in India has. wide
formal base for people's involvemenin t state’s governance. The struc-
tiiré has competence to respond to, and vibrate with a social concern.
“Legal system’s growth and continuance depend upon its principal
sources. The legislative process has immense scope for interaction
with public opinion. The media, the lobbies, NGOs and political par-
fies act as the major players in building up an informed public opinion.
India has emerged as a successful democracy during the six decades of
post-colonial development. Progressive legislation have been enacted
in
by both the levels of government, central and state, respon sé
to pub-
lic opinion relating to various aspects of life. A focused discussion on
interaction between social aspiration or response and legal process will
be conducted in this work in various chapters. Large number of legis-
lation on agrarian reforms, industrial relations, protection of women,
children and the Dalits, safeguarding of consumers and environment,
technology, reforms in family law and constitutional principle of mul-
ticulturalism with social justice and development have shown activist
contribution of legislative wing. The administrative process is theo-
retically linked with strict legalism because of the tradition of rule of
law and constitutional requir :ments for compliance with every law.
Statutes have provided for in built supervisory bodies for implement-
ing the legislative policies. However, the institution of Ombudsman is
not given a serious try at the national level. Unfortunately, corruption
and misuse of power have reduced the ccisins Ga
Precedent as a source oflaw is not enjoying the support of demo-
cratic process to the same extent as that of legislation due to adher-
ence to past examples and lack of representative_quality in the adju-
dicator. Stare decisis is a concept that compels the courts to continue
the existing law,and thus, iS basically change-obstructive rather than
change-friendly.*" But by carving out exceptions to this rule, and by
restricting its overwhelming scope, way for social change is paved
by judicial creativity. Its transformation from symbol « of immobility
to vehicle of change is one of the admirable feats of judicial process.
Because of the task of interpreting and enforcing the Constitution and
laws, judicial Pronouncements with an activist stance have enjoyed
the legitimacy and democratic quality. From interstitial interventions
to intensive law-making, judiciary has made big strides, allowing
the
stupendous growth of law to broaden freedom’s base from precedent
‘1 A.
005) apLakshm
3. inath, Precedent in India (2nd Edn., ’ Eastern n Book Book C Company, Lucknow
Legal system as a purposive enterprise 11
co
E R aD
to precedent. The input and response to social change are of high order
in numerous judgments in constitutional law. Justice delivery system
also has undergone a key change to meet the requirements of pro-
gressive legislation. Tribunals, alternative dispute resolution systems
and Public Interest Litiga
gation
tionhhave made tremendous contribution to
social change. Judicial activism in interpret of theati
Constitu
on tion
and laws has reinforced the constitutional theme of social justice and
multiculturalism.#
Custom as a source.of law has genesis.in.people’s habitual follow-
ing of norms accepted by thesociety.Itpossesses considerable input
of common conscience of the community, substantive scope for adap-
tation to the changing circumstances and efficacy because of undis-
puted application. Since custom represents tradition or culture, and
the force of its continuance, in the context of social change, it has
posed tall challenges espec
in theially
field of family_law. Because
of the influence of culture and patriarchy, and impulses of imitation
to follow the beaten path, traditional societies eieecs tere ot
custom and established modes. Reforms through legislation, applica-
tion of reason and constitutional interpretation to purge its domain
have been attempted as a part of the larger design of social change.
However, this modernist approach is challenged by postmodernist
criticism and experience that people’s traditional law cannot be totally
legislated away.#
The approach of legal profession, which is an important component
of legal system, to social change with the help of legal instrument has
been found to be not enthusiastic, but only formalistic.4* While judi-
ciary has not consistently favoured the cause of social change, legal
draftsmen have been legalistic-formalistic even in drafting most vital
legal instrument like the Constitution. About the contribution of Law
Commission to the cause of legal/social reform, there are two different
views. M_P. Jain and V.D. Kulshreshta have referred to them as instru-
ments of reforms and recorded their contribution as substantial.‘

# Julius Stone, The Province and Function of Law (Law Book Publishers, New York) at
pp. 649-50; The views of Savigny, Ihering and H.S. Maine have extensively dealt upon
creative element of people’s participation in the evolution of law. |
“4 See, fora critical study Werner Menski, Hindu Law Beyond Tradition and Modernity
(Oxford University Press, New Delhi 2003) at pp. 49-59.
Deva (Ed.),
45 J.S. Gandhi, “Law as an Instrument of Change in India” in Indra
Samuel
Sociology of Law, (Oxford University Press, New Delhi 2005) at pp. 98, 107; see,
Schmitthener, “Development of Legal Profession in India” in Indra Deva (Ed),
on and Society: A
Sociology of Law at pp. 114-30; see also, K.L. Sharma, “Legal Professi
Study of Lawyers and their Clients” in Indra Deva at pp. 131, 141-42.
a & Co, Nagpur 1999)
4 MP. Jain, Outlines of Indian Legal History (Sth Edn., Wadhw
Legal and Constit utional History (8th
at pp. 570-71; V.D. Kulshreshta, Landmarks in Indian
12
en
a i NLaw and Social Transformation
Looking to the requirement of participatory affair in the process of law

reform for social change as inspired from the Constitution’s Preamble,
Law Commission has observed, “Laws affect people and it is people
whom we must consult in the law reform process.’#” According to it,
people for consultation included not only lawmen, but also consumers,
beneficiaries and victims of the administration of law and justice. J.S.
Gandhi takes a critical view and holds that Law Commissions, because
of adhocism in their composition and functioning, have acted more
as departmental bodies than independent agencies for legal research
and reform. The public opinion built by legal academicians is also not
substantial and continuous. In the context of lack of dynamism and
capacity to meet the challenges of the developing society, it is possible
to infer in the words of J.S. Gandhi, “The lacuna lies not merely in
the inappropriate social orientations, but also—and more fundamen-
tally—in its structure and composition which precludes it from retain-
ing their functional autonomy.”* As he further observed, “It is better
to live in a state of clear despair than to have an unreal hope. There is
no point in celebrating the promise of law when all evidences are to
the contrary. It will only be raising the structure of self-deception to
the status of demigod.””?
Indian legal system is federal with features of cooperative federal-
ism and strong centre. The division of powers between two levels of
government has created multiple jurisdictions, sometimes overlap-
ping and sometimes problematic. This _has resulted in considerable
variation in the extent of human development in different states inthe
matter of health, education, employment, and gender justice.” It is not
a comfortable situation for a country believing in equal liberty of all'to
put up with a position where the extent of human right protection or
availability of welfare facility depends upon the chance factor of being
born in a particular state. Regarding positive rights like right to food,
Edn., Eastern Book Co., Lucknow 2005) at p. 277; see also, Yogendra Singh, “Law and
Social Change in India” in Indra Deva (Ed_), Sociology of Law (Oxford University Press,
New Delhi 2005) at pp. 337, 342-43.
*” 114th Report of Law Commission (1986) at ps:
%% J.S. Gandhi, “Law as an Instrument of Change in India” in Indra Deva (Ed),
Sociology of Law (Oxford University Press, New Delhi 2005) at p. 106.
* Ibid, at p. 110.
® Report of the National Commission to Review the Working of the Constitution,
2003; for a theoretical discussion about the issue see, Mahendra P. Singh,
“Federalism,
Democracy and Human Rights: Some Reflections” (2005) 47 JILI 430; W. Friedman
n,
Law in a Changing Society (Abridged Edn., University Book House, Delhi 1996) at
p. 47
opines, “Where the power of government is divided between a federatio
n and its
member states, advocacy of planning or laissez faire alone cannot resolve the conflict;
for the further constitutional question arises whether, in a federation,
there is an
inviolable minimum of state powers...”
education, livelihood, shelter and social justice programmes of reser-
vation and other affirmative actions, the measures are taken by two
levels of government. The overlap between the two or lack of coordi-
nation in their actions or differential quantum of efforts by them gives
rise to lopsided situation. For example, since protection of the interests
of Scheduled Castes and Scheduled Tribes is a subject falling into the
domain of both the levels of governments, the question of competence
to reforms has arisen in constitutional litigation. Strong bias in favour
of the centre has reduced the role of State Governments as useful enti-
ties. In the sphere of agrarian and economic reforms, for getting con-
stitutional protection to those legislations, cooperative federalism has
been put into action, and Parliament has positively responded to the
need even resorting to constitutional amendment:" The National Rural
Employment Guarantee Act, 2005, Forest Dwellers’ Rights Act, 2006
and other legislations have relied on cooperative federalism for effec-
tive implementation. The operation of centre-state financial relations
has also decisive say in the matter of balanced development of various
parts of India. From the angle of human rights, environment and wel-
fare, the question, does federalism matter at all, has posed some seri-
ous issues when one critically looks to the consequence of judgments
that deny reformative role to the states as in E.V. Chinnaiah?
In sum, legal system’s responsibility for translating the constitu-
tional goals and ideals into action is one that is placed on the shoulders
of its various components through an integrated framework. While the
maxim “power divided is power controlled” is true in its potentiality to
put forward mutual checks and balances between various organs and
levels of government, the possibility of inaction or obstruction due to
lack of coordination amidst various power holders lurks beneath the
crowded public experience, and calls for integrated approach and con-
stitutional complementarity, lest too many cooks spoil the broth.
1.4 Social change or transformation?

Social change connotes a change in the society arising from different
types of group activities, from modified inter-personal and inter-class
relationships and from changed attitudes and approaches of people
and government about governance, family and public life, economic
51 Especially relating to Arts. 31-A, 31-B and 31-C.
(1999) Public Law 651.
2 Stephen Breyer, “Does Federalism Make a Difference” state
AIR 2005 SC 162 where
53 EV. Chinnaiah v. State of A.P., (2005) 1 SCC 394:
law on internal reservation amidst SCs was nullified on grounds of legislative
incompetence.
14 Law and Social Transf ormation
e e On PONS OES ee eae
processes and social outlook, as compared to their previous position.
Roger Cotterrell views, “Social change is held to occur only when social
structure—patterns of social relations, established social norms and
social roles—changes.” It involves, according to some scholars, “non=.
repetitive alterationinthe establis hed in society,’°°
modes of behaviour
For example, mobility of the class of women to a better social situa-
tion is a kind of social change whereas mere increase in production of
computer software is not reflecting a social change by itself. Overall
restructuring of the society on a different pattern of values is implicit
in social change.” When massive or structural or far-reaching social
change occurs,itis called social transformation.® It is also understood
as the altering of structured inequalities and power relations in soci-
ety that reduce the weight of morally irrelevant circumstances, such
as socio-economic status/class, gender, race, religion, or social orien-
tation®5? Formation of new cultural field, new relations and new social
conflicts emerge from social transformation.© New social movement
facilitates it, and new form of power emanates from it. In academic
writings and sociological discourse the phrase “social change” is more
co without looking to the subtle difference between the
aes ti Le
two terms, For the reason that tremendous and longstanding Changes
are contemplated through the application of the legal system in India,
the phrase “social transformation” is used in this work. But, because
of fami larity
ofthe word “social change” to denote the phenomenon,
the latter word is used interchangeably, especially in this chapter. The
* Steven Vago, Law and Society (3rd Edn., Prentice Hall, Engelwood Cliffs, 1991) at
pp: 214-15. See also, B.Kuppuswamy, Social Change in India (5th Edn., Konark Publishers,
New Delhi 1993) at p.37, “Social change may be defined as the process in which is
discernible significant alteration
in the structure and functioning of a particular
social syotemn . wre | os es:
pee Cotterrell, The Sociology of Law (2nd Edn., Butterworths, London 1992) at
p.
* Friedmann and Ladinsky, “Social Change and the Law of Industrial Accidents”,
67 Col. L. Rev. 50 at p. 80 cited in Roger Cotterrell, supra, n. 55 at p. 47. According to
Ginsberg social change involves change in the structure of the society i.e. the size of
a society, the composition or balance or its parts or the type of its organisation. M.
Ginsberg, “Social Change”, 1958 British Journal of Sociology 205; see also, B.S. Sinha,
Hi and Social Change in India (Deep & Deep Publications, New Delhi 1984) at pp. 17-
*” B. Kuppuswamy, Social Change in India (5th Edn., Konark Publishers, New Delhi
1993) at p. 15.
* jpopendia Singh, Social Changein India (Har Anand Publications, New Delhi 1993)
at p. 41.
ni Roberto Gargarella, Pilar Domingo and Theunis Roux, Courts and Social
Transformation in New Democracies (Ashgate, Hampshire 2006) at p. 2.
® A. Touraine, “Crisis of Transformation?” in N. Bingham (Ed.), Beyond the Crisis
(1977) 17 at p. 44 cited in Upendra Baxi, The Crisis of the Indian Legal System
(Vikas
Publishing House, New Delhi 1982) at p. 2.
Social change or transformation? 15
difficulty in terminological change symbolises difficulty in change of
culture, of which language is a part. Anyway, examining the law-soci-
ety interaction is its major concern.
Seanee is the basic rule of nature, and itis that everything changes
except the rule of change. Old order changeth giving place to the new.
rom matter to energy, from the unseen to the seen, and from the infor-
mal to the formal and vice versa in all these categories, change has
recorded its imprimatur on reality. Life itself is a ceaseless change, But
Slammer aie TO
in the context of society, change does not occur on its own. It should be
; . % Aare em os, aE oa as eis iit icc SRD .
deliberatel conceived , its contours should be designed and its scheme

A roncesexscconeeenii es. Preparing the society for
change through democratic means has logistic imipl’cations. Agencies
and aspirants of change welcome and try to internalise the change
while advocates of stagnancy oppose the phenomenon. Restoration of
equilibrium at and after the eventof change is essential for consoli-
ating its gains. Grafting of new principles to the old values produce
synergies of dynamism just like new shoots and old roots together
, blossom a tree. Hegel considered change as an aspect of world’s real-
\ Spe At. 5 AOI Salad ER TART AEISS | gst aipisagsst
» ity to resolve the contradictions.” Equnern nears al
thesis) was regarded as containing within itselfan opposite institution
- {PE_conception (the antithesis). Change was. COncelVerstiePmuéNG-RLOC-
ess whereby this inner contradiction is resolved by the emergence
of a
| néW conception (the synthesis), which resolves thecontradiction.
This_
forms the 2 Thus, total break from the
Y
ov" past is not the exclusive category of change. Deviation and modifica- :
__\ tion, whether slight or substantive, may also be its pattern. h7 . at) &
ts “(
Since change is a concept linked with society in our discourse, it is
essential to know the framework of society. Society is an organisea
of interaction build up its basic characteristics. Language, reli ion,

Befiay.
create METRE,
morality, ethnic and regional base and economic = process eR
ioural cons . Social predetermination arising from group mern-
ership also influences a person’s.access-to-opportunitiés: Individuat’s
inclination to promote the goal of his choice creates scattered foci of
‘| Hegel, Philosophy of History (1830-1) cited and discussed in Julius Stone, The
Province & Function of Law (Universal Publication Co., New Delhi 2000, Indian rept.) at
pp. 331-32. Hegel considers that unified life arises in the world when future Ss progress
towards
rises from the past. “Everything germinates, sends forth shoots, and strives
farther and more distant aims.”
16 at p. 332.
6 Commenting on Hegel's theme, Julius Stone, supra, n.
the Law (N.M. Tripath i, Bombay 1978) Chs. J
6 B.A. Masodkar, Society, State and
and 2.
private powers, which the society conglomerates, coordinates and bal-

ances by determining role allocation and role performance for indi-
viduals in the society.” Jawaha rla
Nehru ld, “Society is always
observe
it has
conservative, and dislikes change. It loves to remain in the rut
got into, and firmly believes that it was meant toremain.therefore.“
But those who desire progress must necessarily attack old institutions
and customs by employing appropriate democratic means without
and future, tradition works as transmitted information and a resource

for human action. With varieties of experiences that each generation
churns out, the diversity of guidelines offers numerous choices. As
Patrick Glenn remarks:
“The presence of the past may thus be seen today as changing, and
its effect on present society more important, though less predictable. If
tradition is therefore more important, in the west, it leads to contempla-
tion of other traditions. If the past is of such diversity, moreover, it may
be still more diverse whe~ placed in the context of different traditions
which do not share a constant vision of time, or of the past.”
Glenn views that the major thrust of global legal traditions has been
that of deriving nourishment from sustainable diversity. Insofar as
India is concerned, pluralism in religion, language, regions and ethnic
identities; stratification through caste and gender considerations; and
diversity in levels of economic, social and educational development
have set parameters to be complied with and problematic factors to be
surmounted. While reasonable space for voluntarism or social initia-
tive has been given, activist state’s role with suitable legal machinery
has also been contemplated.
“ B. Kuppuswamy, Social Change in India (5th Edn., Konark Publishers, New

Delhi
1993) at pp. 2-3.
® Jawaharlal Nehru, Glimpses of World History (1934).
°° Jawaharlal Nehru, Speech at the Editor’s Conference,
3-12-1950.
* Talcot Parson, Radcliffe-Brown, Nadel and Beker
focus on the problem of
continuity and change. See, B. Kuppuswamy, Social Change
in India (5th Edn., Konark
Publishers, New Delhi 1993) at pp. 2-5.
1H. Patrick Glenn, Legal Traditions of the World: Sustainable
Diversity in Law (3rd
Edn., Oxford University Press, Clarendon 2007)
at p. 24.
Social change or transformation?
ES
a ee 17
eee
1.4.2 Causes ofsocial transformation

Social transformation occurs due to several factors such as changes
in technology, demography and ideology; changes
in political life
and economic policy (such as globalisation); and in legal principles
or institut
Wars, revolutio
ions .” ns, colonisation, overthrow of foreign
rule, agitations, public actions and mass movements also bring social
changes. The transformations in the political climate occurring due to
these factors trigger new development of readjustments or consolida-
tion of the social gains. The most dependable instrument to plan and
bring orderly change even amidst critical situations is law because of
its ability to restructure the relations and its influential institutional
framework/° With the dawn of independ the legislators
ence, and plan- ee J
ners
; ing India opted for le islative
—
inroads on osthe
PSs ait Sri SN
feudal
aa ee
system of agrar- nA
es
ian intermediaries, on traditional norms of personal law, on practices
ofuntouchability
and onmercantilist
and industrial relations7THe
, = a ce Yoemmer ansada medida At Ky A
mass movements for independence and overthrow of totalitarian rule

in America, England, France and Russia ended with forging of human
rights charters
and constitutional documents
as dynamic instruments
of social change. As viewed by Nisbet, “Major ages of social change
and mobility almost always involve great use of law and litigation.””*
Some of the factors apart from law that bring social change include
demographic, technological, economic, and cultural factors. For exam-
ple, with changes in human practice of reproductive function and
advancement in medical science, there occur changes in population,
family’s size, standard of living and intensity of intra-familial relations.
Urbanisation, changes in male-female ratio and changes in access to
basic necessities of life are traceable to demographic factors, which are
partly influenced by social outlook and gender bias”
Technology has profusely influenced social change by introducing
new methods of production by employing labour saving devices, by
swift transportation and communication system, and by new repro-
ductive methods? Computer science, information technology and
biotechnology have resulted in alteration of the legal concepts of com-
munication, liability and life. Social life has undergone tremendous
6 [bid, at Part II of the book.

” Roger Cotterrell, The Sociology of Law (2nd Edn., Butterworths, London 1992) at
.
. 57-58.
mn Yogendra Singh, Social Change in India (Har Anand Publications, New Delhi 1993)
at pp. 46-55.
1975) at
72 R. Nisbet, Twilight of Authority (Oxford University Press, New York
2173: ;
Publishers, New Delhi
: 73 B, Kuppuswamy, Social Change in India (Sth Edn., Konark
1993) at pp. 83-98
4 Ibid, at pp. 99-06.
B e eee
ns, electronic
change because of communication revolution, televisio
gy. Legal
and electrical devices, automobiles and construction technolo
its rules of
system’s competence for detection and prevention of crime/’
evidence and methods of providing remedies have undergone change
with the growth of e-commerce, cyber crimes and internet. Genetic
engineering, artificial insemination, test tube babies, surrogate moth-
erhood; and cloning, pre-natal detection technique and abortion have
challenged the values of family life. Further, degradation of environ-
ment arising from technological progress has created pressure upon
the legal system to alter its legal strategies and introduce new prin-
ciples and mechanisms for its abatement. Thus, technology is both a
boon and a curse, to which law and society have to respond aptly
The general policy is that law should follow rather than be ahead of
technological development. Before the required change occurs in law,
the conflict between old law and new situation is bound to occur, even
temporarily. The period of transition sometimes witnesses imagina-
tive application of old rule to a new problem through the fiction of
analogy. But when changes occur, they occur in larger canvas. Further,
it can be seen that fundamental changes in the concept of liability or
the method of its identification have been influenced by technological
developments.
Economic changes in the field of international trade, in the types
of domestic industries, aid in the method of agricultural production
have brought notable changes in expanding the middle class, bringing
more comforts to the participants or investors, lowering the extent of
poverty and avoidance of starvation and other deprivations. There is
also unfinished task of elevating people from poverty line. Five Year
Plans have attempted at bringing desirable changes with noble vision
and foresight. Social objectives of the Plans over five decades include:
raising the standard of living of people; expanding the opportunities
for the hitherto neglected classes; most effective use of human mate-
rial resources to reduce inequalities of income and to promote access
to education, health services and full employment; continuous and
rapid progress with social justice; stabilisation of agriculture and rural
development; greater role for women in economic activity; and creat-
ing conditions and sense of participation in the transformation of soci-
ety. With the shift in economic policy from the state supported social-
ist pattern of society to opening up of market opportunities, there has
been focus on enhancing the output and income through structural
reforms. The policy of development with human face has emphasised
Poe cae Legal Theory (Sth Edn. Universal, New Delhi 1960 rept. 2003) at
pp. 60-68.
’° See infra, Chs. 15 and 17.
ee ti‘(C 19
on right to education, health and employment. Entry into WTO and
the compulsion to abide by strict international trade law regime cov-
ering investment, services, intellectual property law (TRIPs) made
India to alter her law on these areas?” Impact of WTO law on various
aspects of life triggered changes in domestic law as well. A law-and-
society approach to studying economic life will reveal and elaborate
the ways in which law both produces and is produced by the economy.
As Edelman views, like river, law weaves its way through economic
life, creating possibilities for economic development and placing con-
straints on the form of that development?
Cultural factors such as basic orientation in religion, morality, and
social outlook influence the direction and extent of social change/?
Group conscience as built in the form of literature, art, language,
custom, law and public institutions, because of distinct identities
projected by it, has its own impact upon the society’s mindset in the
process of internalising the social change. Social changes relating to
institutions of family, philanthropy and intimate social organisations
have connections with culture of the community. Gender bias, caste
discriminations, superstitions and other group intolerances reflect
cultural faults that impede progressive measures of reform. Law has
interconnections with above factors. Either along with them or on its
own, it has influential role as will be discussed elaborately in this work
at appropriate stages.
The expansion of education at various levels is a vital factor for
social change as it énables building of pro-welfare public opinion and
diffusion of knowledge that arms the people against exploitation and
blind beliefs. As stated in the Report of the Education Commission
1964-1966, “The most powerful tool in the process ofmodernisationis
education based on science and technology. The one great lesson of
the present age of science is that with determination and willingness
to put in hard work, prosperity is within the reach of any nation which
has a stable and progressive government.” A person’s education and
public discussion
health give access.tojobs,.expand income, facilitate
of social needs, increase the and obtain a
ability to resist oppression Se eraTEa
PET a Sa
ea ial acta alia
fair deal.
Wituatinstes 7
7” See infra, Ch.15.

78 Lauren B. Edelman, “Rivers of Law and Contested Terrain: A Law and Society
Approach to Economic Rationality” (2004) 38 Law and Society Review 181 at p. 194; see
also, Warren, J. Samuels and A. Allan Schmid, Law and Economics (Martinus Nijhoff,
Boston 1981) at p. 11. Rie
7 See, for discussi on Yogendra Singh, Culture Change in India (Rawat Publicati ons,
New Delhi 2000) at p. 25.
The 19th century Indian Renaissance was influenced by education to a great
change
extent. See infra, Ch. 2. For discussion on influential role of education on social
see supra, B. Kuppuswamy at pp. 161-79.
20 Social Transformation
Law ande
Oe e
1.4.3 Types of social transformation
and
Transformation ‘can be classified in two manners: (i) continuous
discontinuous; and (ii) evolutionary and revolutionary. Day-to-day supe Da
incremental and peaceful transformation is common and subtle, but

; 7
pieced et
is a dynamic phenomenon. in.a. developing, free democracy in the long

ware et
eID
run because of people’s acceptance and adaptation. Discontinuous

changes are ad.hoe.policies,orone-day affairs without much foresight,
preparation and planned management. Short public memories do not
add much to the process of change. But sometimes, isolated protests
keep the issues alive and when time is opportunefor striking, cause _
some impact. Movement for change, process of change and temporary
resilience for demanding bigger change are links in the chain of social
development. Evolutionary transformations emerge from concerted
social efforts and are usually planned by involving the use of social
energy towards the purpose. These changes are preceded, accompa-
nied or followed
by legal changes, as will
be discussed in this work.
Revolutionary transformations are fundamental and cause..basic.
alteration of conditions. Sometimes they resort to violent overthrow of
government, use of force, terrorism, and armed revolt as that of naxal
movement. Inheriting the tradition of freedom movement in India,
which adhered to non-violent struggle, we ought to eschew these prac-
tices in total. But radical and non-violent methods of transformation
through democratic participation permissible under the Constitution
shall be adopted. The ideals of democracy, equality and freedom are
difficult to be realised in’a single stroke. For equipping the human
resources with adequate ability to achieve these revolutionary ideals,
an evolutionary approach shall be adopted. According to Yogendra
Singh, “It shows how revolution and evolution as a social process have
an intercontingent relationship. One cannot be realised without the
other.”®!
With reference to levels, rate, direction and magnitude of social trans-
formation some discussion needs to be done. Level wise it has been
understood to include: (a) alteration of pattern of individual behaviour
(eg. change in the number of dowry deaths or abortions); (b) altera-
tion of group norms and attitudes or patterns of interrelationship of
individuals and groups (e.g. increase in the temple entry of Dalits); and
(c) alteration of the basic mores or values of society (e.g. materialistic
to humanist values). Regarding rate of social change, there is varia-
tion from society to society. According to Roger Cotterrell, “It depends
on such matters as technological progress, natural environment, the
extent of development of political organisation and consciousness, the
et keel Singh, Social Change in India (Har Anand Publications, New Delhi
1993)
at p. 23.
i C 21
degree of cultural unity or diversity, and the extent and character of
interaction with other societies.”** Direction of change brings in the
issue of desirability of change and value orientation in social devel-
opment. The magnitude of social change depends upon the type of
society: traditional, modernised and highly sophisticated. While in
tradition bound society social change is slow, in modernised one it is
speedier.
Transformations for better and for social welfare are desirable; but
the undesirable transformations resulting in exploitation, ill health,
violation of human rights and immorality are not liked or allowed by
the civilised legal system. Indicators of social transformation for good
include: elevation of people’s standard of living, elimination of pov-
erty, expansion in education, better protection ofwomen and children,
promotion of social justice by equitable distribution of opportunities,
reduction in economic disparity, safeguarding of human rights, wide-
spread popular participation in decision making process and public
life, effective protection of environment and human rights, and pro-
motion of communal harmony. Hence, in the very conception of social
transformati some value
on orientation can_be formulated.*+ Indian
Constitution has listed fundamental values like democracy, human
rights, welfare and social justice, to which the whole process of social
change shall conform to. Choice of good purpose and sincere working
for its attainment produce desirable result. Aplanned social change
not only involves choice of right ends but also choice and application
of appropriate means. to.attain them. Equal importance of ends and
means emphasised by Gandhiji has great relevance in the methodol-
ogy of social change.* Gandhiji gave a talisman to test the propriety of
any policy: “Recall the face of the poorest and weakest man whom you
have seen and ask yourself if the step you contemplate is going to be of
any use to him. Will he gain anything by it? Will it restore him control
over his own life and destiny?”
® Roger Cotterrell, The Sociology of Law (2nd Edn., Butterworths, London 1992) at
. 47-48.
PP W. Friedmann, Legal Theory (5th Edn., Universal, New Delhi 1960, rept. 2003) at
pp. 26-27.
84 Natural Law scholars, sociologists and Social Darwinists have advocated social
evolution to expand the scope for progress, human rights, knowledge and economic
competence. See supra, B. Kuppuswamy at pp. 19-25. According to Herbert Spencer the
accumulated experience of one generation in the form of morality, duty and justice
in
become instincts for the subsequent generation. Change and continuity go hand
hand. See supra, W. Friedmann at pp. 226-27. .
Edn,
8 MLK. Gandhi, An Autobiography or Story of My Experiments with Truth (2nd
183, 239, 263-67, 345.
Navjivan Publishing House, Ahmedabad 1940, rept. 1976) at pp.
8% Gandhi Smriti (Birla House, New Delhi).
y.3 Law and Social Transformation
1.4.4 Value orientation in social transformation

Value orientation is explicit inplanned social transformation. Planning
is a commitment to concentrated and well-thought action. It is adjust-
eeetncrr tet
ncemnppanes
SARE eR nine etl .
ment of social institutions and resources to new social, economic and
sere ee
nation’s future, people’s prosperity and social happiness should guide

the process of change. As A.PJ. Abdul Kalam and Rajan viewed:
“Nations are built by the imagination and untiring enthusiastic efforts
of generations. One generation transfers the fruits of its toil to another
which then takes forward the mission. As the coming generation also
has its dreams and aspirations for the nation’s future, it therefore adds
something from its side to the national vision; which the next genera-
tion sv"ives hardto achieve. This process goes on and the nation climbs
steps of glory and gains higher strength.”*”
In the field of economic reforms, as Dreze and Amartya Sen said, “The
central issue is to expand the social opportunities open to people. In
so far as these opportunities are compromised by counter-productive
regulations and bureaucratic controls, the removal of these hindrances
must be seen to be extremely important.”** Apart from freeing of mar-
kets, expansion of educational facilities, health care and nutritional
support for all and reduction in economic inequality should usher in
through economic development.” On the whole, change is not neutral
or mechanical happening, but is it linked to desirable objective.
1.5 Law’s relation with social justice

In fact, the relation between law and justice is one of the means and
the goal, and is emphasised by natural law thinkers from the earliest
times. Aristotle considered that constitutional government by insist-
ing on distributive justice through law could usher in happiness and
welfare.” J.S. Mill named justice to those moral rules, which concerned
with the essentials of human well-being more clearly, and were there-
A.PJ. Abdul Kalam and Y.S. Rajan, India 2020: A Vision for the New Millennium
(Penguin Books, New Delhi 1998) at pp. 21, 23. “Only people with many embodied
skill and knowledge and with ignited minds can be ready for such long term vision.”
** Jean Dreze and Amartya Sen, India: Economic Development and Social Opportun
ity
(Oxford University Press, New Delhi 1998) at p. 203.
® For a discussion development’s connection with freedom see, Amartya
Sen,
Development as Freedom (Oxford University Press, New Delhi 2000) at pp.
14-17.
*” Aristotle, Nichomachean Ethics.
Law’s relation with social justice
i e ee rc ll23
fore of more absolute obligation for the guidance of life." Legal sys-
tem itself acts as a purposeful enterprise to attain justice. The ques-
tion, “Why law after all if it does not promote justice” looms large in
teleological thinking. Justice means rendering to each person his due.
Since considerations of human dignity, quality of life and potentiality
or aspiration for growth of human personality house equally in all
human beings, distributing the opportunities for their access becomes.
a task of distributive justice. John Rawls considered justice as cen-|ai
tral to the legal system or rather tothecivilisation itself Reiterating hat '"
Aristotelian concept of equality amidst equals or in proportion to equal | 4.
conditions in the matterof opportunities and liberties, he regarded
that any deviation from the rule is justified only for giving better pro-
tection ofthe least advantaged individuals or classes of persons in the
society. According to Roger Cotterrell, “Justice is a perception of social _
relations in balance. It is one aspect of a sense of social cohesion or
integration.”> He prefers sociological interpretation of legal ideas in
order to reframe social relations on appropriate lines. Social dimen-
sion of justice is brought out by Julius Stone when he admits Duguit’s
assertion that the facts of social life spontaneously produce law and
justice out of themselves.%
In the Indian context, thinkers visualise social justice as justice in
social and inter-class relations and in access to social opportunities.
Protection of the weak against exploitative or competitive power of the
strong is one of its major concerns. According to K, Subba Rao, social
justice aims to rectify through just means injustice in personal relation-
ships of
people and to remové the imbalances in political, social and
economic life of the people.» As viewed by Justice K.Ramaswamy: ~
“ ‘Social justice’ is an integral part of justice in the generic sense. Jus-
tice is the genus, of which social justice is one of its species. Social justice
is a dynamic devise to mitigate the sufferings of the poor, weak, dalits,
tribals.and.deprived.sections of the society and to elevate therm tothe
y Social justice 1s not
of person.
level of equality to live a life withdignit
EEE
1 John Stuart Mill, Utilitarianism, cited in Eugene Kamenka and Alice S. Tay, “The
Traditions of Justice” (1986) 5 Law and Philosophy 281 at p. 310; they consider justice
as a way of doing things, and not so much as an idea or an ideal.
% John Rawls, Theory of Justice (1972) at pp. 1, 303.
% Roger Cotterrell, “Why Must Ideas be Interpreted Sociologically?” 25 Journal of
Law and Society 171 extracted in MDA Freeman, supra, n. 74 at p. 756
% Julius Stone, Social Dimension of Law and Justice (Maitland Publications, Sydney
d
1966) at p. 551. See also, Julius Stone, Human Law and Human Justice (Maitlan
justice
Publications, Sydney 1965); throughout both the works Stone considers law and
historical
as not timeless concepts but they were developing ideals forged in concrete
internal conflict, differing social perceptio ns
circumstances, admitting of struggle,
and human interests from one generation to another.
pp. 1-2.
K. Subba Rao, Social Justice in India (National, Delhi 1974) at
E
OO oe E
complex
a simple or single idea of a society but is an essential part of
ward
social change to relieve the poor etc. from handicaps, penury to
y
off distress and to make their life livable, for greater good of the societ
ntial
at large. In other words, the aim of social justice is to attain substa
degree of social, economic and political equality, which is the legitimate
expectation and constitutional goal. In a developing society like ours,
steeped with unbridgeable and ever widening gaps of inequality in sta-
tus and of opportunity, law is a catalyst, rubicon to the poor etc. to reach
the ladder of social justice.”
It is considered as consisting of diverse principles essential for the
orderly growth and development of personality of every citizen.
Special privileges and advantages to vulnerable sections of society so
that they can have better access to good things of life constitute the
strategy of social justice. Since social justice is part of the scheme of
justice itself, such special measures shall neither be disproportionate
nor arbitrary. Born in necessity, its scope ought to be limited by neces-
sity itself. As observed by the Supreme Court in M. Nagaraj, “Social
justice is concerned with the distribution of benefits and burdens. The
basis of distribution is the area of conflict between rights, needs and
means. These three criteria can be put under two concepts of equality,
namely, “formal equality” and “proportional equality”. Formal equal-
ity means that law treats everyone equal. Concept of egalitarian equal-
ity is the concept of propo**ional equality and it expects the States to
take affirmative action in favour of disadvantaged sections of society
within the framework of democratic polity.”"”
1.6 Theoretic models

on social transformation
Broadly, there are three theoretic models about social transforma-
tion. First
is the consensus model, which believes in bringing social
changes on the basis of obtaining society’s overall consent. Secondis
the conflict model that believes in compelling changes through inter-
ventionist approach without requiring society’s prior consent. Third is
the integrated model, which combines the positive aspects of both the
models. However, these are not rigid models. There could be varying
grades of approaches within these models and even in their interac-
tions, depending upon the social thought and social force, and inten-
sity, pace and magnitude of social change.
Air India Statutory Corpn. v. United Labour Union, (1997) 9 SCC 377: AIR 1997
SC
*” M. Nagarajv. Union of India, (2006) 8 SCC 212: AIR 2007 SC 71; also see,
P. Ishwara
Bhat, Fundamental Rights: A Study of their Interrelationship (Eastern
2004) see, Ch. 6. p (Eastern L Law House, Kolkata
Theoretic models on social transformation
25
1.6.1 Consensus model _
V ary theory, which reflects one type of consensus model, pro-
pounds that human society has gradually evolved from simple, homog-
enous, agrarian and traditional societyto a complex sophisticated and
technological society owing to mental and material development and
due to emergence of new values.® Auguste Comte traced the road to
perfect society through the historical phases of theological, metaphysi-
cal and positive developments.” Herbert Spencer, following Charles
Darwin, considered that steady accumulation of new propensities and
capacities to meet the social challenges brought natural and Thevitable
progress towards a desirable and just form of society. Group soli-
darity and overall community participation provided thrust to guided
social changes, they believed.
The structural functional theory, which is another form of consen-
sus model, takes a holistic look to the structure and functioning of the
society. The components of the social structure like family, govern-
ment, economic system, religion and education are closely intercon-
nected like the components of biological organism. Integration of soci-
ety through the principle of division of labour and mutual dependence
contributed to the maintenance of social life (Emile Durkheim).’”
_Malinowski took a functional view of culture by pointing out that
every_civilisation, every custom, material object, idea and belief ful-
filled_some vital function représenting indispensable part_of the
whole.” Cause and effect relationship int Ci ompels
the social
system to Keep a state of dynamic equilibrium through adjustment of
forces. Change is a process of adaptation to the circumstances
and
challenges, both within and without, but carried _on_through integra-
“tion of shared values. Thus stability and change act as complements to
each other. Talcot Parson viewed social change as a boundary breaking
_ %® Kuppuswamy, Social Change in India (5th Edn., Konark Publishers, New Delhi
1993) at p. 20; see also, Robert Meagher, Law and Social Change in Indo-American Reflections
(N.M. Tripathi, Bombay 1988) at p. 2.
% W. Friedmann, Legal Theory at p. 228-29; Steven Vago, Law and Society (3rd Edn.,
Prentice Hall, Eaglewood Cliffs, New Jercey 1991) at pp. 37-38.
1 [bid, at p. 226. “What is accumulated experience in one generation becomes
instinct born in the next one. Morality, duty, justice thus become instincts based on
the experience which has taught a previous generation the most useful way of life, in
the sense that it has enabled it to survive.” This grandly relies on the balance between
continuity and change.
11 [bid, at p. 229; see also, Steven Vago, supra, n.54 at pp. 38-39.
2 Malinowski, Crime and Custom in Savage Society (1926) cited in Julius Stone,
; . .
Province and Function of Law, at p. 716.
social motion that bring
3 Thering refers to altruistic and moral levers of
n. 94 at pp. 304-07, W.
equilibrium and advancement of society. Julius Stone, supra,
Friedmann, Legal Theory at p. 323.
OR
and equilibrium restoration process in response to external forces like
technological and demographic changes, wars, cultural invasions
(including international economic challenges) and in response to inter-
nal factors of strain and disequilibria (like class conflicts, dominance,
and exploitation of weaker sections).'
When Mr Justice O.W. Holmes propounded that law should always
lag behind social development or public opinion, he meant that legal
‘changes should follow experiences ofthe community, and.that societal
the basis for change in law. He observed:
consensus shall be
“The actual life of the law has not been logic; it has been experience.
The felt necessities of the time, the prevalent moral and political theories,
intuitions of public policy, avowed or unconscious, even the prejudices
which judges share with their fellowmen, have had a good dea! more to
do than the syllogism in determining the rules by which law shall be
governed,’7°5
Thus, public opinion gives solutions to legal problems in democracy.
AN. Dicey traces the growth of statutory law-making and legal system
in terms of the increasing articulateness and power of public opin-
ion.’ But the social consensus that law follows in the Indian society, as
Justice M.N. Venkatachaliah observes, is notoriously behind the time.
He views, “This traditional process of evolution of legal regulation of
the social fall out of the ills of modernism are wholly inadequate.”"”
1.6.2 Conflict model

pian
stestediets
ich et
In contrast to the consensus model, there lies the conflict model put
social-behaviour-in terms of tension an sefween groups an

individuals.’ Limited resources and unlimited demands give rise to
conflicts. Su ression ofthe weak inthe process ofestablishing access
to resources ledinthepasttooppressive practices HRSslavery Fou.
dalism, and exploitation of the working classand gender discrimina-
™ Talcot Parsons, “Durkheim’s contribution to the theory of integration of social

systems” in Sociological theory and Modern Society (Free Press, New York 1967); Roger
Cotterrell, supra, n. 1 at p. 81-84.
* O.W. Holmes, Common Law (Little Brown & Co, 1951) at p. 1.
ae AN. Dicey, Lectures on the Relation Between Law and Public Opinion in England
during the Nineteenth Century (Macmillan, London 1905). His propositions about
growth of public opinion originating from genius-like personalities and spreadin
g
through communication, belief, sentiments and about law-creating opinion created
by law have much insight and practicality.
"” MN. Venkatachaliah, “Role of Law in Changing Society” (2001) 30 Banaras
Law
Journal at pp. 7-11.
oti Cotterrell, The Sociology of Law (2nd Edn., Butterworths, London
1992) at
Pp. 410-12.
Theoretic models on social transformation 27
a”
tion." Revolting against such practices and against their consequent

_-social conditions required conflicts by classes ofcivil society." Karl
Marx, prominent thinker of this school, said, “Without conflict no
progress; this is the law whichcivilisation has followed to the present
day.” Conflict and change are inseparebIS"SCCORaNe Tothis oct: :
tion..Since the social institution including legal system stood on the
substructure of economic foundations, legal principles reflected out-
come of class conflicts.” While feudalism and capitalism reflected
supremacy of the property owners, its overthrow by dictatorship of
the proletariat (workers) is an outcome of class struggle and changes
in the foundations of economic process. Thinkers of economic school
of law have emphasised-confliet-as-a-creative means-of-promating, or
stimulating social change. Quinney views:
_Saaiasyaeneharacicrised
by diversity, conflict, coercion and change
rather than
consensusandstability...Unlike
by the pluralistic conception
of politics, ; ac romise of the diverse interests
in society, but-suppests.some interests.at.the.expense of others.’
It is regarded that conflict is a part of socialisation process between the
groups, which is satisfied about fulfilment of its needs, and the group
that is not so satisfied." While increased adaptation and adjustment
is possible in the context of conflicts, the encouragement of in-group
cohesion may deepen the conflict.
The conflict model has also several types. Use of force,-collective
violence and armed assertion are canvassed _asits instrument by the
extremists of conflict model. This model tolerates temporary violation
of human rights and acts with prejudice. Paradoxically, in the name of
equality it pays scant respect for equal rights of all. On the other hand,
peaceful ion, agitation and persuasion have been the tools of
sober and_democratic protagonists ofconflict model. Empowerment,
which brings the marginalised section to the mainstream; security
against class exploitation; social justice through participation in good
governance system are the means adopted by them. Depending upon
9 Karl Marx, Critique of Political Economy (1859), MDA Freeman, supra, n. 8 at

5 99S:
is10 Karl Marx and Frederick Engels, The State and Law, extracted in C.M. Campbell
(Ed.), Law and Society (Martin Robertson, Oxford 1979) at p. 31 For emancipating
the whole of society, a class of civil society should arouse moment of enthusiasm
and fraternise with society by merging its demands with that of society, and thus
valorising the social effort.
Ml Tbid, at pp. 39-40.
12 Richard Quinney, The Social Reality of Crime (Little Brown & Co,, Boston 1970)
at p. 35.
cited by
13 Ralf Dahrendorf, Class and Class Conflict in Industrial Society, (1959)
Law, Order and Power
Steven Vago, at p. 18; William Chambliss and Robert Seldman,
(211d Edn., AW Publishing Co., Reading 1982).
eee
28
Oo Law and Social Transformation
the rigour of the action plan, there may be different approaches within
these categories also. The concept of empowerment lays new emphasis
to the building of economic and social capabilities among individu-
als, classes and communities." It may be invoked in any context of
access to human rights, basic needs, economic security, capacity build-
ing, skill formation or the conditions of a dignified social existence. As
Andre Beteille points out, “Empowerment is both a means to an end
and an end in itself."
Sociologically, power is the chance of a man or a number of men to
realise their own will in a social action even against the resistance of
others who are participating in the action.’ Legally, it is the capacity to
alter the legal relations. It.has the facets of subjection, coercion, domi-
nation and manipulation."” In a hierarchic society, where social power
is unequally distributed, empowerment levels down the powerful and
emboldens the powerless. As Andre Beteille views, “The power of one
party can be enhanced only by reducing the power of some other party.
In other words, empowerment and disempowerment go hand in hand:
the empowerment of some section of society has to be accompanied
by the disempowerment of other sections of it.”""* As an alternative to
this zero-sum conception, Talcott Parsons regards power as a resource
of the community as a whole, which it may use more or less effectively
in the attainment of its goals.” Like wealth, it may be augmented by
human endeavour and ach’evement through simultaneous expansion
of the rights of citizenship and the capacities of institutions. Power has
dual nature: it is a prime mover of social and national progress, and is
a source of corruption and misuse. While product of the former is to
be socially redistributed, the occurrence of the latter shall be checked
and remedied by the rule of law regime. By ensuring that quota-based
policy of empowerment does not eat up the general provision of equal-
ity of opportunity, its corruptive influence can be checked.
1.6.3 Integrated model

This model relies on the activist and cooperative partnership of state
and society in heralding social transformation. Since factors that assist
—— nn ws ee - —_—_—_—_—_—— ___.__
see Beteille, Antinomies of Society (Oxford University Press, New Delhi 2000)
at p. 269.
15 Tbid, at p. 268.
ae Weber, Economy and Society (University of California Press,
Berkeley 1978)
at p. ;
"7 E. Shils, Centre and Periphery (University of Chicago Press, Chicago
1975) at
pp. 239-48.
8 Andre Beteille, supra, n. 114 at p. 273.
119
Parsons, ‘Lalcott, “On the Concept of Political Power” (1963) 107 Proceed
ings of
the American Philosophical Society.
Application of the models in the legal realm 29
r
REE Es SRS r
EAE
traces social conflicts to dichotomy between groups, which have

authority, and those, which do not have. The well-organised subor-
dinate groups are more likely in conflict with the dominant group. If
such groups are more intensively and democratically organised, the
conflicts will be resolved with less violence. He views, “Stability and
change, integration and conflict, function and dysfunction, consen-
sus and constraint are, it would seem, two equally valid aspects of
every imaginable society.”° Social conflicts and constraints operate
as the great creative forces for social change. Rectification of social
faults, better decision with enthusiasm and improved approaches may
engender from conflicts. From the vertex of dissatisfaction, mailed fist
of dissatisfaction rises to assert a change. Hegel analyses the unfolding
of human history, and points out how civilisation develops through
synthesis of thesis and antithesis." Kohler carries this analysis a step
ahead and states that man’s power over himself and over external
nature are constantly extending even though hampered by elements
of chance and illogicality. He observes:
“The purpose of law is to assist in this development and in the reduc-
tion or neutralisation of obstructive elements. Although, for instance,
law cannot eliminate chance elements obstructing development, it can
alter and distribute the incidence of risk over society as a whole so as to
neutralise it.’7
Integrated model accommodates sufficient space for dealing with the
problems of tradition versus modernisation, and development versus
justice-It-puts
forward modernisation paradigm in.such a way that
théréis io total break away fromthe past, Change, yet continuity is _
its mantra. R “developm
2 ent, its concern is to avoid dichotomy
with justice by ensuring equitable distribution of resources, non-con-
centration of wealth in few, and inter-generation equity in the sector of
environmental protection.
1.7. Applica tion of the models in the legal realm

ae
rere tie
Law has reciprocal relation of mutual assistance with social change.

The question whether law should lead and initiate social change
1s
or whether it should do nothing but follow change in the society
ical
answered differently from the perspective of above two theoret
120 bid, at pp. 174-75. .

121 See, Julius Stone, Provin ce and Functi on of Law, at p. 332.
12 Ibid, at p. 334.
ee a ee Salas el
can
models. The Western and Indian legal thoughts on these matters
be examined here.
1.71 Western approach to the models
compels the state t tr and persuade for the chan

accorens to the legal policy, the consensus model suggests for bring-
ing social consensus for change by conciliating the conflicting inter-
ests. The latter tries to crystallise and implement the legal principle
»
es
¢
pr ing conscience of the community and not as a norm imposed by a law-

vi £ giver from the above.”
AA Extending this logicin sociological thinking, EugenefEhulich piewed
that centre of gravity for social development consisted not in legisla-
tion, nor in judicial decision but in the society itself. He gave a key role
for living law of the people. This approach is largely correct because
without society’s a change imposed from the
above is likely to be resisted and defeated
in thesociety. When the
desire and determination ‘or change come from the bosom of the soci-
ety and the process of change is well built for societal elevation, the
bottom up approach becomes successful. From the viewpoint of effi-
cacy and avoidance of waste of social capital or energy, this has advan-
tages. But the disadvantage
with this modelconsists
in the difficulty
ofbuilding a favourable public opinion or consensus and the delay
caused in the process. It marginalises the role of law and relegatésit
tothe position of a second fiddler. The failure in effective enforcement
of social legislation like Dowry Prohibition Act illustrates the need for
pA ¥ ©
social consensus, but the difficulty is in attaining of it. Pointing out the
\ serious limitation within a legal norm is to operate, Sally Falk Moore
writes, “Legislation consists of conscious attempts at social direction.
But clearly, societies are in the grip of processes of change outside this
kind of control.”"75
An activist role of law and state is visualised not only if Marxist)
or socialist conception, but also in welfare démocracies believing in
ee
se Julius Stone, Province and Function of Law, at pp. 430-33.

'4 Cited by W. Friedmann, Legal Theory (Sth Edn., Universal, New Delhi 1960, rept.
2003) at p. 248.
2 Sally FallsMoore, Legal Process (1981) at p. 66 cited in Robert Meagher and David
Silverstein, supra, n. 98 at p. 25.
Application of the models in the legal realm
31
social transformation through application of state power to implement
the chosen value goals and more specifically social justice. While
positivists like‘John Austif emphasised on the enforcement aspect
of law through thes ion of state power, scholars like Bentham
believed in extensive social reform through making and application
of law. Bentham not only analysed the legal process through utilisa-
So mene er
tion calculus of maximising the pleasure and minimising the pain,

but also looked to the core ends like subsistence, abundance, security
and equality for a legal system to achieve.° His thoughts influenced
the era of social legislation in the West. But sheer dependence on state
power is likely to fail the legal mission. Imposition from the above-
top down model'?”—ignores the people as participants and agents of
social
change and looks to them as voiceless receivers of state policies
anical power addressees. Social resistance to the law or fail-
ureto cooperate for change disappoints the legal aspiration. Variance
of social behaviour from law-in-book arises from such context. Such
failures pose big challenge to rule of law system itself. Ruthless appli-
cation of law through coercive means may raise
human rights issues
also. However, such a position occurs usually when law is barren of
social values and antithetical to socia. welfare even in the long run
and when the state traverses the path of totalitarianism. In reality and
by and large, law itself is an outcome of social choice, born from a dem-
ocratic process of deliberation in the legislature consisting of popular
representatives,
(Roscoe Pound? the famous sociological jurist, considered law as.an
a _
instrument of social engineering with an immense capacity

to plan
andn execute desirable structural changes in the society
to satisfy dif-
ferentforms of social interests.’* Satisfaction of maximum of wants
with minimum of friction and waste, and upholding of the ideal ele-
ment of liberty and humanitarianism are implicit in this process.”
Orientationto welfare and promotion of human rights are generally
implicit in laws enacted in welfare democracies. Judicial review also
operates to stop legislature from going berserk. Although law may
face initial opposition-in-the-society,_by convincing, the people about
its advantages through practical application and demonstration it will
Pee
126 Bentham, An Introduction to the Principles of Morals and Legislation (Ed.), Burnst
and Hart at p. 1. ;
27 The top-down or instrumentalist approach involves rules from the upper
—
echelons of government being imposed through the intermediary of bureaucracy.
Roscoe Pound, Social
128 Roscoe Pound, Interpretations of Legal History, at p. 156,
Dias, Jurisprudence at
Control through Law, at p. 65; Jurisprudence, Vol. III at p. 15; RWM
. 430-36.
Calcutta 1958)
_ Roscoe Pound, The Ideal Element in Law (University of Calcutta,
at p. 282.
Be
opin-
win hearts of the majority and thereby create a conducive public
that
ion not only for its favour but also for future reforms. Dicean idea
of
law creates law-creating opinion is well demonstrated in the series
social reform and economic reform legislation. Having tasted the good
of a reformative law, people yearn for more reforms, proving a proverb,
hunger grows on little feeding. More the reforms, more the reforma-
tive law and vice versa. For this to happen, law should represent the
goal of social justice. Both in the consensus and conflict models law
emerges as a resultant equilibrium either by appropriate response to
challenges or by annihilation of surmountable difficulty. In the con-
sensus model there is apparent compromise where parties stand on
win-win situation whereas the tug of war in conflict model may be
producing a zero-sum game. Between the two there can be a middle
level model, which uses strong features of both the models and coun-
terbalances their weaknesses. In fact, the¢Nehruvi odel emerged
in India represents such a position with slight tilt in favour of activist
\ ha “Ge y y. af
State.
1.7.2 Indian approach-to the models: ancient and modern

Indian legal thoughts about law’s role in social change need to be
briefly discussed at this juncture. While the major thrust of Indian
tradition has been to subordinate individual desires and economic
actions to just legal principles and to bring welfare of people at social
level, legal thoughts of some key lawmen can be perused. Kautilya’s
(4th century BC) thoughts about roleof state and law_partly_aligns
with conflict model of social change. He asserted supremacy of eco-
nomicact
and property (artha evam pradhanam) over other factors
including religion and sensual pleasure. He believed in the proposi-
tion that ends justified means, and formulated famine relief policy that
included raiding the provision of the rich in order
that hungry might
be
fed.3°He recommended
the policy of thinning the rich by extract-
ing excess of revenue or causing them to vomit their accumulated
wealth. He supported annihilation of enemies even when they were
hiding in religious places.’ But he also laid the foundation of welfare
state by imposing duty upon the king to “provide the orphans, the
aged, the infirm, the afflicted, and the helpless with maintenance”
Another prominent jurist, Vijnanesvarain 12th century AD, adopted a
different approach in the matter of social reform. His work, Mitakshara,
a commentary to Yajnavalkya Smriti, reflected some novel interpreta-
Shamashastry, Kautilya’s Arthashastra (Mysore Printing Press, Mysore 1967) at
pp. 236-37.
81 Arthasastl ra, Vol. XII at p. 5.3; Vol. IX at pp. 7, 60-61.
' Shamashastry, supra, n. 130 at p. 47.
Application of the models in the legal realm
33
tions to recognise the rights of women and children and to protect
against unjust enrichment and undeserved misery.'>> The social expe-
riences of the past and aspirations for the future were responded with
reformist zeal, but he did not go far enough to wipe off the evils of sati
and slavery although he tried to lessen their rigour. The strategy of
Vijnaneswara was reflecting consensus model, by whic one was
h to
wait for social consensus for introduction of réformatory measure.
e views of modern Indian thinkers like Gandhiji, Dr. BR.
Ambedkar and Nehru_on law-society interaction disclose the contin-
ued dichotomy. Candhiji Believed in active role of reformative law,
but regarding its making and implementation pre
he supposed
win-
ning the consent of the oppressor and cooperation of the oppressed.
According to him_chheart. anof gethe.o
oppres
fsor and emboldening
of the exploited together bring social changes. With this he gave
an
activist dimension to consensus model.
tr. Ambedka? admitted the existence of inequality at the economic
and social plane in India and stated categorically, “We must remove
this contradiction at the earliest possible moment, or else those who
suffer from inequality will blow up the structure of political democ-
racy which the Assembly has laboriously built up." As a great leader
who struggled for the cause of ameliorating the disadvantaged _sec-
tions of society, he had believed in the conflict model strategies like
reservation In employment, religious conversion and nationalisation
oF ae Thisreminds us of the people’s understand-
own
ing that neither does the mango of social benefaction fall to the mantra
of wishful thinking nor does law operate as a self-fulfilling prophecy
by magic wand, It is through the just and sincere effort with the tool of
rule of law that the finest fruits of development could be plucked.
“awaharlal Nehext co bined the positive aspects of both the models
and adopted a via-media policy or an integratedapproaeh-Regarding
social legislation like family law reform, agrarian reforms and dowry
prohibition law his approach is reflected in his words, “Legislation
cannot by itself normally solve-deep-rooted_social problems. One has
to approach them in other ways too, but legislation is necessary _and
essential so that it may give that push and Reve Rar eccsee factor
as well as legal sanctions behind it which help public opinion to be
given a certain shape.”> Nehru had considered that law could not go
offata tangent from life’s problems and that overcoming its tendency
to remain as static it should possess positive thrust and dynamic
133 P [shwara Bhat, “Protection against unjust enrichment and undeserved misery
48 JILI 161.
as the essence of right to property jurisprudence in Mitakshara” (2006)
14 CAD, Vol. XII at p. 979 (25-11-1949).
the Dowry
35 Cited in Statement of Objects and Reasons of the Bill to amend
Prohibition Act, 1961.
Se ple
content. His view that law has to maintain a basic and fundamen-
tal character, but it must not be static as nothing could be static in a
changing world suggests about the need to balance between continu-
ity and change.
Some of the analogies employed by writers in explaining different
models can be looked into, although with some caution. The consen-
sus model of translating the potential idea into practice by an external
expression is compared to gradual process of turning the cocoon into a
butterfly. The activist social task of law, on the other hand, is compared
to a situation of forcefully starting a vehicle by push and jerk when self-
starter fails.2”7 Kick-starting a new history is a phrase used to denote
the venturesome human effort.’ It is also considered as analogous to
the process of horticulture. MV. Krishna Rao observed, “The princi-
ples used in horticulture should indicate the method to be followed in
legislation, for, there is much potential perfectibility in human nature,
and social conditions to be so adjusted by legislation as to assist in the
development of this, when evil tendencies will thereby atrophy from
disuse. Preventive, probative and reformative legislation of this order
would then be a great aid to social morality. But, the success of social
legislation could be achieved only when the people became intelligent
enough to formulate such legislation regularly when there was the
growth of an intelligent public opinion dependent on general scien-
tific knowledge and civic ~atriotism.”"4*° According to this approach, a
top-down model involving considerable state intervention should be
supported by participatory model that calls for bottom-up approach.
It is difficult to absolutely prefer-one-model.to the other or.discard
either. Further, all types of legislation (Some touching upon culture
or group identity and some governing economic relations) cannot be
treated with same model of social change. Culture-specific charactér
of law calls for minimum social consensus. Law’s character of Compro-
mise between different standpoints is its both strength and weakness.
'8¢ Jawaharlal Nehru’s speech in Delhi Conference of International Jurists 1951; see
also, P.N. Bhagwati, Law, Freedom and Social Change (Bangalore University, Bangalore
1979) at p. 7.
''” Evyatar Levine, Legal Justice and Social Change (Robin Mars Ltd., Jerusalem 1990)
at pp. 201, 206.
J.S. Mill, Utilitarianism, Liberty and Representative Government (Everyman’s
Library, London 1964) cited by Bhikhu Parekh, Rethinking Multiculturalism (Palgrave,
Macmillan, New York 2006) at p. 45.
— To make land ready by de-weeding, tilling and manuring; to choose appropriate
sapling and planting with suitable distancing; to constantly nourish by watering and
organic farming; and to protect the plant from pests and diseases. Sometimes “nose-
leading the society” is the expression used.
"MN. Krishna Rao, The Growth of Indian Liberalism in the Nineteenth Century (H.
Venkatramiah & Sons, Mysore 1951) at p. 209.
Interactions between law and social transformation
35
A holistic approach combining the advantages and imperatives of con-
sensus and conflict model to suit the solution of a specific problematic
situation, and proper mixing of participative and command/control
technique can emerge as an optimistic and dependable paradigm. This
paradigm confers an activist role to the state and society: to educate
(create public opinion), to legislate and to enforce. Nehruvian model,
largely concurs with this paradigm.
1.8 Interactions between law and social transformation

er
The relation between law and social transformation is mutual and

multilinear. Justice Koka Subba Rao identifies five possible relation-
ships between law and social change:
LL er
O53
emereareee
ogSia inoo
sensei
2. social change occurs contrary to law;

3. law facilitates social chang@—————"
4. law causes social change; and
5. social change and law interacton each other."
In the first two situations, law is
not an active agent of social change.
Its task is confined to follow and consolidate the change through its
institutions or to attempt at set right development
the if the direction
of change renders it undesirable. In the other three situations
law has.
an active roleto play in initiating, managing and monitoring social
change. After surveying the major constitutional policies and devel-
“opments and the thrust of legislation on agrarian reforms, labour wel-
fare, protection of weaker sections and women he concludes that the
concept of welfare state has increased state’s control in every walk of
life. But he cautioned, “Every law made in the interest of social justice
should therefore lay down clearly not only the policy but also reason-
able safeguard against arbitrary action.” Law reforms include the
policies such as “tinkering”, “following” and “leading”. While the
first one brings peripheral changes, the second one tries to readjust
the legal system to the changed circumstance. The third one helps the
cause of social change by building the legal environment necessary for
the change management. A dynamic role is donned by the fourth type,
in which law leads and commands social change by setting the legal
policy in advance of social preparedness for the change. In the last
category can be found the mutually reinforcing and harmonising duet,
played through the alterations in societal mores and modification in
one of the sub-social normative patterns.
1971) at p. 62.
141K, Subba Rao, Man and Society (Bangalore University, Bangalore
42° Tbid.
It is possible to gather from Nehruvian thinking some broad

of
parameters about social transformation through the midwifery
state power. These have cardinal importance 1n developing countries.
Rajeev Dhavan distils from Nehru’s ideas, the following ingredients:
Law emerges not mystically, but as a deliberate choice by the legisla-
tive body.’# It gains legitimacy by conforming to social justice or by
emerging from democratic discussion. Rule of law and rule of life
should march together, and people’s conduct should comply with the
law. For achieving social and political transformation, it is not suffi-
cient if it simply declares the law and leaves it to the good sense of the
people to implement it; but it is essential that powerful bureaucracy
with the assistance of court should plan, persuade, cajole, and threaten,
and punish the incongruence between the plan and its compliance. The
change process should occur within the framework of human rights
and democratic principles.
Chain reactions between law and social change multiply social
dynamism. For example, industrialisation brings new relationship
between employer and the worker based on the economic power of
bargaining. Law responds to this by empowering the worker to col-
lectively bargain or to have minimum wage or to claim good condi-
tions of work. Having better economic conditions, the workers set up
better family life and provide good education to their children. Better
socio-economic conditions result in lesser rate of crimes. The lesser the
crimes, more effective is tne socio-political participation. The better
the democratic conditions, better is the atmosphere for legal and social
reforms. The social benefits of the law-based reforms trickle down to
or empower the entire com-
various layers-of the society and enrich
munity..Spiral like expansion of the reformative impact in ensuring
justice to women, children, and consumer, the aged, sick and the poor
has a tremendous scope for social welfare. Society’s competence for,
and practice of value—internalisation in this regard immensely con-
tribute towards social transformation.
This approach of the society to use legal mechanism to solve social
proble is called
m in modern times “legal culture”. “Legal culture”,
quite distinct from culture in ordinary sense understood in another
section of this chapter, isconsidered by modern scholars as competent
for translating social change into legal change. According to Lawrence
Friedmann “legal culture” refers to what people think about law,
lawyers, and the legal order; it means ideas, attitudes, opinions;
and
“ Rajeev Dhavan, “If I contradict myself, well, then I contradict myself...Nehru,

Law and Social Change” in Rajeev Dhavan and Thomas Paul, Nehru and the Constitution
(N.M. Tripathi, Indian Law Institute, Bombay 1992) at p. 45, 56.
Interactions between law and social transformation
Se Relay bcuimeniblba lame Cia insect i cr 37
expectations with regard to the legal system.'44 Occurrence
s of war,
plague, revolution and technological invent bringio far-re
ns aching
social changes and lead to differencesinthe way peopl e think, in what
they
exwantpeandct.’ These changes in attitudes alter the pattern
of¢temands on the legal system. Being more concrete form of pub-
lic opinion, legal culture or legal consciousness or culture of legalism
as alternatively called, influences the law-making process. A scandal,
calamity or mass disaster deeply moves the legal culture to demand
for new law to avert their occurrence in future. For example, the Bhopal
Gas Disaster shook the legal conscience and persuaded forchange in
the environmental law. Sale_of children in the name of.transn
ational
adoption and various types of exploitations inflicted upon. women,
chiland dren
workers are some of
the shocking incidents, which have
spurred the legal. culture.in.India.to react. creatively. However, the
“legal culture” needs to be meticulously and positively developed. For
example, a superstitious approach to sickness as Act of God leads to its
continuance and spread whereas proper information about its origin
in lack of hygiene motivates for better sanitation and health conditions
through the making and application of new law. The_sort.of legal cul-
ture prevails in.a society varies from community.to-community,and
from person to person.
In addition to the pro-active role of law in social change, its reactive
role should also be seen. For example, market economy brings cheaper
products, pressurises the producers to be more competitive and com-
pels for better quality. Suppose, producers fail to compete and are
forced to close down their factory, workers go unemployed; unemploy-
ment causes dissatisfaction and this increases the crime rate. Unless
the legal system reacts more fundamentally by choosing right strate-
gies towards harnessing the advantages of globalisation, its superfi-
cial reaction will mismatch the social change. Similarly, the challenges
posed by the scientific and technological developments in various
fields have called for appropriate legal interventions. Laws govern-
ing genetic engineering, reproduction, atomic energy, space law, cyber
crimes and environmental pollution try to resolve conflicting interests
by improved legal principles. According to W. Friedmann, “The kind
44 Lawrence M. Friedmann, “The Place of Legal Culture in the Sociology of Law”
in Michael Freeman, Law and Sociology (Oxford University Press, Oxford 2006) at pp.
185, 189.
45 Ibid, He considers legal culture influence as considerable in the growth of
labour law, family law and constitutional law. Law, as a pragmatic instrument and no
respecter of sentiments, responds to social changes because of the pressure exerted by
legal culture. Legal culture is a concept involving rich field of enquiry for estimating
society’s competence for consolidating change through law. See also, David Nelken,
y
“Rethinking Legal culture” in Michael Freeman, Law and Sociology (Oxford Universit
Press, Oxford 2006) at p. 200.
Law and
E Social Transformation
38
I
i a ERI i ASN AEE
of interaction that obtains in any given situation is essentially deter-
mined by two factors: (a) the type of political system that controls legal
action; (b) the type of social interest which is the object of the legal
regulation in question.”#° Indian Constitution's clear commitment to
social transformation through activist state persuades all the three
organs of state and multi layered democratic system to bring planned
social changes by implementing the Directive Principles of State Policy
or by realising the aspirations underlying Fundamental Rights. The
constitutional arrangements for quasi-federalism, Panchayati Raj, and
tribal development have great supportive contributions to make to the
social changes contemplated in the Constitution.
Some of the basic ch istics of law that challenge law’s abilit
robe dantesabs
e esindinad igenmernwceet
examined. Friedmann aees stability,
considers riba for for-
malis m for security from disorder as the problematic
and desire fac-
tors.'47 Efforts of maintaining stability of conditions will turn a blind
eye to the social developments and cause a gulf between social reality
and law. Formalism born for the purpose of ensuring procedural pro-
priety may become empty technicality that adds'to judicial delay and
redtapism. Fear of insecurity associa withted
change may discourage
the legislat or changes. The refined legal techniques and
from bringing
prompt response fo social aspirations have great potentiality of resolv-
ing the tension between legal ideals and social reality. For example,
phenomenal growth of Publi Interest Litigation and its social impact
in India overrides the obstacles of traditional approach of locus standi
by sheer reformulation of legal policy to suit the legal ideals.
As an instrument of social change, law has immensely contributed
[ social development from the earliest times depending upon the
| extent of law’s own dynamism and society's characteristics, degree of
| social pressure or its preparedness.’#® While the reach of law in tradi-
tion bound and conservative society in bringing social changes is lim-
' ited because of people’s indifference or resistance, in modern liberal
democracies law has great impact upon society because of people’s
cooperation, reception and internalisation.“° For example, relentless
efforts were to be put in 19th century for abolition of sati, female infan-
t ticide and slavery. Enactment of law for these purposes were preceded
and followed by efforts to create public opinion in support of the leg-
islative policy and meticulous, planned and effective enforcement of
them had to be done in order to make law successful. Contrasted to
this, it was with much ease that far-reaching changes were brought
“° W. Friedmann, Law in a Changing Society (3rd Abridged Edn., University Book
House, Delhi) at p. 21.
“7 W. Friedmann, Legal Theory, at p. 70.
“8 W. Friedmann, Law in a Changing Society, at p. 34.
‘” W. Friedmann, Legal Theory, at pp. 42-44.
Stability and transformation: law's dichotomy 39
in postcolonial period in the matters of land reforms and abolition
of zamindari, ryotwari and other intermediary system. Considerable
changes in law for better protection of environment, consumers, work |
S
ers, women, children, and ations Lawab of the society have been
experienced over the generations. JLaw’s ability for readjustment of
social structure in proportion to’Social receptivity and sometimes to
meet the heightened expectations of set goals is one of its prominent
advantages. Fostering the attitude of respect towards new way of doing
things enables its success.
The interaction between law and social transformation can be ana-
lysed with reference to some binaries between which social motion
oscillates. Emphasis on one of the binaries in each set—stability and
change, collectivism and individualism, interventionism and volun-
tarism, and modernism and post-modernism—disturbs the balance
and necessitates countervailing the disturbance by invoking force of
the other side. Since society is a continuous entity exposed to pluralist
features and forces of change, the see-saw movement casts shadow on
the line that divides the binaries. Friedmann calls them antinomies
and gives the reason of conflict between ideology and reality for their
dichotomous relations.'® Lh
ER O SLA O n)
L A \ySuma\g
(Anu o- S
1.9 Stability.and transformation: law’s dichotomy rf Wie
Law’s function of maintenance and advancement of civilisation has
dual role of continuing the present order by insisting on human behav-
iour complying with the existing law and continuing those tendencies
in civilisation whose fulfilment will bring it nearer to its own ideal.
Hence the dichotomy between stability and change is traceable to civi-
lisational standard itself. As Kohler wrote:
“Law must be different in every different civilisation, in order to real-
ise its own object...There can be, therefore no such thing as eternal law,
nor is it admissible to prophesy what shape law will take hundred years
of hence. No Plato or Aristotle could foresee our own times... What we
are able to do is to perceive the outlines, the general outlines of the world
process and to pave the way for the progress of law in the immediately
succeeding time."
Holmes regarded historical continuity not a duty but a necessity.’
He also identified life of law in human experience whose changing
pattern made legal changes inévitable-He-stated-“Fhe law is forever
adopting new principles from life at one end, and it always retains
or sloughed off. Tt will
old ones from it at the other.. not yet absorbed
sasnatpener erence Ea BR HO c Pee en cus ipenieen
190 Tbid, at p. 83.

151 Julius Stone, Province and Function of Law, at p. 338.
182 Roscoe Pound, The Ideal Element in Law, at p. 285.
become consistent only when_it ceases to grow,”> The difficulty in

reconciling the bipolar ends of stability and change is traceable to
the conflict between love for the old order and desire for the new one,
and justifications for both. Roscoe Pound succi oints out, “Law
must be stable a 454 This calls for reconcili-
ation hetween needforstability and teneed Toncuanee Positivism
and historical school emphasised stability whereas utilitarianism and
sociological school argued for law’s leadership for desirable change
by balancing the conflicting interests. Looking to the colonial experi-
ences of exploitation and imposition of alien law, it has been viewed by
a scholar that law is the source of both instability and rigidity in the
context of political development.
Change in the life of the community ought not to be straitjacketed
by law, which is primarily aiming at maintenance of status quo and
hence, normally reactionary to progressive outlook. As M.C. Setalvad
writes: om
“One of the characteristic purposes of law is the maintenance of sta-
bility. n besaid to be its paramount object and indeed a vital incen-
tivetO its development. But in its desire in stability, law frequently
bécomes
SEE
static and not unoftenge
blind to su rrounding soc l :
es.
Such a state of affairs reduces law to a mere name and in course of time,
law, instead of preserving stability defeats its own object and is defied
by forces stronger than itself. It is obvious, therefore, that law_has to
respond to social changes and respond so as not to leave a time-lag
before it brings itself into line with social development. But that does not
mean that law has to play only the role of “obedient servant”. Law can
have also a constructive and positive function and may itself become
the instrument of social change.’
Constitutions provide for amendments to accommodate themselves to
: A ~ BS ere pon eceieienns ae ae
the changing social and economic circumstances. But enduring nature
of prime constitutional values has persuaded the India lary to
vO wemanic structure theory t rotect the stable values but allow
peripheral changes.
byrequ
the changed ired
circumstances. Albert
Camus had said, “Stability and change are the two sides of the same
law-coin. In their pure form they are antagonistic poles; without stabil-
ity law becomes not a chart of conduct, but a glare of chance: with only
stability the law is as the still waters in which there is only stagnation
and death.”"5°
®° Julius Stone, Province and Function of Law, at pp. 142-43.

'* Roscoe Pound, Interpretations of Legal History, at p. 1 cited by W. Friedmann, Legal
Theory, at p. 86.
= M.-C. Setalvad, Law and Culture, in Essays in Legal Systems in India, at pi za.
—_
* Cited in John Vallamattom v. Union of India, (2003) 6 SCC 611 at para 35.
Other dichotomies
4]
1.10 Other dichotomies
The binaries focusing on different facets of human collectivity in
approaches and actions provide extreme points between which human
actions oscillate. The dichotomy between collectivism and individual-
ism and the question of subordinating individual to community or vice
versa have been looked differently by different schools of thinking."57
Supremacy of the collectivity at the cost of private rights on account
of inseparability of individual life from social milieu; or on ground of
economic reasons or because of social discipline in modern industrial
society has tilted the balance against individual rights. Individualist
philosophers advocated supremacy of individuals over collectivity by
regarding individual as free rational moral agent with potentiality of
growth on personal choice. Hegel argued for synthesis between the
individual will and state will. Recognition of reasonable state regula-
tion on abuse of individual freedom and orientation towards general
welfare bring such synthesis.
The concept of universal man, which considers whole humanity
as single entity, defies conflicts between the two. One problem with
collectivity is that group mind beneath it may overemphasise parti-
san entitlements undermining both collective benefits and individual
interests. Restraints on unjustified strikes, fanatic acts and economic
combinations are to be understood as counter measures against such
deviances. While identical features align, differences repel. Human
rights system should stand above the crisis that conflagrates from
either of the factors. The sensitive and immutable personal charac-
teristics like race, religion, caste, sex, language and region or place of
birth should be delicately handled by the legal system by balancing
between individualism and collectivism. In this process unhousing of
the human soul, by leaving the myriad forms and names, enables one
to reach the goal of infinity.*
Legal system veers also between positivism and idealism. Ruthless
application of coercive power bereft of ideals (for example, Nazi legal
system) raise questions of legitimacy. On the other hand, ideals inspire
and spur the legal systems into actions. Strength of idealism may even
justify those leading the society into the path of right conduct. But.
mere idealism without pragmatic method of enforcement undermines
the image of law also. For example, a law that provides for controlling
number of guests in marriage and other occasions fails to command
obedience because of practical difficulties and social indifference.”
197 W. Friedmann, Legal Theory, at pp. 88-90.

ha
188 Kuvempu, The Unhoused Consciousness (The song of universal man).
on
59 A Jaw to this effect was prevalent in Karnataka in 1975-76. Austerity legislati
the problem of female
that curtailed marriage expenses in 19th century to deal with
There may be competing ideals also. As experienced in the sphere of

environmental protection, between development and conservation oft
falls the shadow. Remedy lies in principled approach of sustainable
development.
Between voluntary action and interventionism also dichotomies
arise. Voluntary initiative taken by civil societies or self-help groups or
NGOs goes a long way in determining the direction, method and level
of change, and in executing the plan of change through participation
of beneficiaries and benefactors." In a healthy growth model these
not-for-profit groups respond to the social problems, involve the peo-
ple, inspire and motivate them for change by building up pro-devel-
opment public opinion and action. They intermediate between state
and the market, fill the informal sphere by numerous social networks,
and often, being rooted in cultural and ideological contexts, emerge
as virtual proletariat of cultural pluralism. In the sphere of education,
health, care of the aged, orphan and the abandoned, or in shielding the
farmers or consumers from the hostile competing forces of the market,
they play vital role. References by the Supreme Court to the support-
ive role of private educational institutions in recent cases and by the
National Commission to Review the Working of the Constitution to
the creative role of civil society formally testifies their utility, while
the considerable support by them in Public Interest Litigations, human
rights promotion environmental protection and in attainment of gen-
der and social justice have, i:t fact, shown maturity of democracy and
signs of healthy society.
The public space of the society is occupied partly by the non-profit
sector in addition to that held by state and profit-making sector. In
terms of creative contribution to the society, the non-profit sector plays
crucial role, especially by effectuating the role assigned to them for
implementation of legislation." The dynamism of the society much
depends upon activist role and functioning of the self-help groups
within the society. A bottom-up approach emerging from popular par-
ticipation has great merit because of the social receptivity of the change
and emotional commitment to the change process. On the other hand,
state interventionism sets norms from the above, according to the
notions of policy-makers without so much realising about the desir-
ability or social acceptance of the policies. It dominates through sheer
power structure by imposing vertical control.
infanticide can also be referred.
'° P. Ishwara Bhat, Legal Environment Governing Third Sector in India: A Purpose
Scrutiny Perspective (CACOM, University Technology, Sydney 2003) at p. 1.
*! E.g. Dowry Prohibition Act, 1961; Protection of Women from Domestic
Violence
Act, 2005; Environment (Protection) Act, 1986; Protection of Human
Rights Act, 1993,
etc.
Law and morality: relation in the context of social transformation 43
Modernism and post-modernism constitute another set of binary
that attracts discourse on law’s approach of bringing modernisa-
tion. Modernity denotes the idea and practice of bringing rationality,
progress, industrialisation, uniformity and enlightenment in the place
of traditionatism;~plurality-and-social belief.“ It assimilates identity.
Post-modernist critique of modernism rejects the ability
of law to speak—
uniformly irrespective of a variety of historical, economic and social
experiences. Continuation of community’s identity by standing above
the assimilationist approach is“emphasised*by~post-modernists: In
this approach, as A. Lakshminath viewers, “The objective and neutral
figure of justice has been revealed to be a myth, a dangerous anach-
ronism that crushes, not the serpent of inequity and chaos, but the
flower of human experience, beneath her feet.’”"° The concept of uni-
view-
form civil code is subject to staunch criticism by post-modernist
ers. Continuance-of tradition and cultural practice within the frame-
_ work of human rights and social justice has been favoured by the legal
system or society, according to Werner Menski.'** Modernisation strat-
egy of welfare state has been followed by a situation of State’s gradual
withdrawal. The swing of pendulum on both sides has tried to keep
the balance between change and continuity.
1.11 Lawand morality: relation in the context of social

transformation
Relationship between law and morality is one of the old problematic
areas of jurisprudence. Traditional approach underlying morality has
posed-some difficulties to reformative function of modern law. The
very existence of intrinsic mora! content in law and its extent have
dity
of law—is_perc
_been much debated issues. Normative vali eived’
from the angle of morality and promotion of morality is conceded as
on TT a Tae ee ee
Morality is a social virtue based on reason, and evolved for promot-
intrsocial good OrNappINess” avid-Hurme views that the considera-
tions of harmony Of family, mutual support, dignity, generosity, kind-
ness "and such other tendencies of benevolence enter into our bosom
to evoke norms ofideal conduct, which give rise to body of moral
weer —
ae
162 Werner Menski,.Hindu. Law (Oxford University Press, New Delhi 2003) at p. 6.
ivism to Post-Modernism
13°A Lakshminath, “Criminal Justice in India: Primit
(2006) 48 JILI 26.
va
'4 bid, at p. 9.
and Morali ty”, at p. 291; AW.
165 For a discussion see, Jerome E. Bickenbach, “Law
of Morality” at pp. 301-08 , Law and Philosophy
Cragg, “Violence, Law, and the Limits
1989).
ted in John Arthur, Morality and Moral
elation Nicomachean Ethics, Book I extrac
1999) at p. 12.
Controversies (5th Edn., Prentice Hall, New Jersey
iia En NESSIE SL ol SS ne ea
S
principles.” Morality as a sense of right conduct arises from PIS
“ence to social uti ng! manly accepted indi-
The sou rce

and .from which morality emerged are con-
groundss
of.
sidered to be religion, conscience and society. But the foundation
morality inreligion
can be doubtes
unusual practices like sacrifices offered to please God, lack of religious
perception in obedience to morality and non-reliability of the influ-
ence of divine command theory. The group conscience essential for
habitual obedience of morality speaks about the factor of social partici-
pation in its compliance. John Dewey brings out the social character of
morality by pointing out t oice of right conduct or_alter-
native is made by estimating the social consequence of it; that
it ena-
bles gauging of human being’s interaction with family, lovers, friends
and others; and that it enables reflection, with foreknowledge, over the
blames or praises that a conduct would bring in future if resorted to.’7’
According to some feminists, since it emerges in social practice because
of association of leason, form, knowledge and maleness, gender bias
enters into the process of its ce eens resulting in stereotyping of
women’s role.’ On the whole. the factor of social process lies beneath
morality asan essential component of it.
Widely based in social policy, morality has posed difficult _ques-
tions on variety ofmattersof law’s.concern. Propriety of deprivation
of human life is one intimate issue repeatedly found in morality dis-
course. Right to commit suicide, right to active or passive euthanasia,
propriety of death penalty, right to abortion, right to be saved from
starvation death, and acceptability of waging of war have been looked
by the state and society from moral perspectives, which have equally
weighty arguments from both the sides.’ Reproductive rights like
‘7 David Hume, “An Enquiry Concerning the Principles of Morals” extracted in

John Arthur, supra, n. 166 at p. 23.
' John Stuart Mill, Utilitarianism, extracted in John Arthur, supra, n. 165 at p. 40.
‘© W. Friedmann, Legal Theory, at pp. 25-27.
' Immanuel Kant, The Fundamental Principles of the Metaphysic of Morals, extracted
in John Arthur, Morality & Moral Controversies (5th Edn., Prentice Hall, New Jersey
1999) at pp. 25-28.
1 John Dewey, “Morality is Social” referred in John Arthur, supra, n. 166 at pp. 82—-
3:
'? Virginia Held, “Feminist Transformation of Moral Theory” extracted in John
Arthur, supra, n. 166 at p. 61.
wy Gian Kaur v. State of Punjab, (1996) 2 SCC 648: AIR 1996 SC 946; P. Rathinam v.
Union of India, (1994) 3 SCC 394: AIR 1994 SC 1844; Bachan Singh v. State of Punjab,
(1980)
Law and morality: relation in the context of social transformation 45
a
right to have child, right to abortion, right of surrogate mother, rights
ofin connec
HIV patien ts to confidentialityvis-s-vis rights of others to know"
tion with marriage, grant of patents for inventions offend-
ing morality and cloning of living beings have raised sharp controver-
sies.'74 The growth of law in response to.scientific inventions has more
favoured people’s c 10ICe rather than reinforcement of socia morality
and gender justice "The confli ts between |individual and societal
interests, or between individual intere of differe
stsnt persons have
been déépened by moral-arguments. Legal policies relating
to prosti-
tution, pornography, and polygamy have also raised moral arguments
of diverse nature.’”° Regarding prevention of cruelty against animals,
moral contentions based on equality of rights of all living beings have
been put forward. Holding of beauty contests, performances of ritu-
alistic practices and deviant sexual behaviours have also been issues
of legal and moral contention.’” Determination of these complicated
issues has addressed to the law-society interactions and the compe-
tence of law for reinforcing or resetting the moral standard.
Law’s connection with morality brings out its position as part of
the social process. Laws_reflect.essence.of.social morality. Standards
of morality vary with time, place and types of people. This variance
causes tension between retainers of traditions of morality and advo-
‘eates"Of “alternative mores. Social mannerisms, taboos and outlooks
influence the boundaries of morality. Capacity.of law to alter social
morality suffers limitations because of society’s unpreparedness to
receive the changes, deep roots of morality in social thinking or inac-
tion or inherent limitation in facing a popular norm. But law has or
should have great concern for protection. _of-essential-social-morality
necessary for the smooth survival of the social system. This middle
is in between the two extreme views of H.L.A. Hart and Lord
ground
Devlin. Hart, byrelyingon J.S. Mill's view regards that law has no
business in regulatinga purely self-regarding private conduct touch-
ing
moral
Wpon issue and argues forlegal neutrality amidst moral plu-
ralism’'78 whereas Lord Deylin considers that law-has the-responsibil-
its power for its
and of lending
ity of setting a high moral standard aw
Sere ecw
2 SCC 684; Roe v.Wade, 410 US 113: 35 L Ed 2d 147

4 Mr *X’ v. Hospital *Z’, (1998) 8 SCC 296: AIR 1999 SC 495; Michael H. v. Gerald D,,
491 US 110: 105 L Ed 2d 91 (1989). @2
5 Subir Bhatnagar, “Abortion Law and Social Behaviour : Past and Present” in D.R.
Saxena (Ed.), Law, Justice and Social Change (Deep & Deep Publications, New Delhi
% .
1996) at pp. 101, 107.
D. Udeshi
176 Gaurav Jain v. Union of India, (1997) 8 SCC 114: AIR 1997 SC 3021; Ranjit
v. State ofMaharashtra, AIR 1965 SC 881.
302.
17 Chandra Rajakumari v. Commr. of Police Hyderabad, AIR 1998 AP
Hart, Law, Liberty and Morality (1963); W. Friedmann, Legal Theory, at
178 F1L.A.
p. 46.
46 T Law and Social Transformation
e
eo Oe ee
to
enforcement.” Protection of social interest in the general morals
preserve the institution of family becomes a public policy that sets
standard of conduct for sexual loyalty within the framework of mar-
riage, as Julius Stone observes."
Legal policies relating to abortion, prostitution, obscenity, adultery,
homosexuality and chastity have been influenced by the approach of
either protecting individual liberty or saving the society from dete-
rioration. But the doublestandards_practagainst iced women in these
gender bias, and which should
domains, which have been motivated by:
have been dealt through the concept equal human dignity, have not yet
been addressed by law-morality discourse. From the feminist perspec-
tive, there is a serious flaw by such failure." Asres
a ult ,
law’s trans-
formative role-has.deeply.suffered. For example, woman’s chastity isa
requisite for her entitlement to maintenance when she resides separate
from her husband. But law disregards her position as victim of sexual-
ity of others. This results in defeat of her claim whereas stray acts of
sexual disloyalty of her husband towards her do not entitle her for her
separate residence.’” This arises from the patent gender bias, and law
fails to rescue the woman’s interest. Law of adultery looks from the
angle of keeping the husband’s marital bed unsullied and does not
The dual standards inmorality operating adverse to the interests of

women are to be remedied-by.law-rather-thanbe continued:
Although law cannot make men moral by its own force, it can_serve
to.stimulate moralism and preserve minimum social morality. Law’s
stern stance against female foeticide; allowing the practiceof pros-
titution but prohibiting its exploitative features; and prescription of
two children norm for becoming sarpanch are to be understood in this
light. Regarding the need to bring greater coordination between
” Lord Devlin, The Enforcement of Morals (1965) at p. 89.

80 Julius Stone, Province and Function of Law, at p. 502.
‘8! P. Ishwara Bhat, “Restructuring the Law-Morality Discourse for Gender Justice”,
(2008) 3(1) Journal of Academy of Juridical Studies 1.
fe 18 .ee Adoption and Maintenance Act, 1956.
owmuithri Vishnu v. Union of India, 1985 Supp SCC 137: 1985 SC i :
1985 SC 1618; Yusuf Abdul Aziz v. cle of Bombay, AIR 1954 SC 321.
nye
sg Javed v. State of Haryana, (2003) 8 SCC 369: AIR 2003 SC 3057, Per Lahoti,
J, “In
our view, disqualification on the right to contest an election by having
more than
two living children does not contravene any fundamental right nor does
it cross the
limits of reasonability. Rather it is a disqualification conceptually devised
in national
interest...Under Art. 47 the State shall regard the raising of the level of nutritio
n and
the standard of living of its people and the improvement of public health
as among
its primary duties. None of these lofty ideals can be achieved without
controlling the
Law’s advantages and limitations in bringing social transformation 47
law and morality, it is worth referring to what P.N. Bhagwati, J. had
observed in Motilal Padampat'*:
“The law cannot acquire legitimacy and give social acceptance unless
it accords with the moral values of the society and the constant endeav-
our of the courts and the legislature must, therefore, be to close the gap
between law and morality and bring about as near an approximation
between the two as possible.”
1.12 Law’s advantages and limitations in bringing social

transformation
Compared to other factors of social transformation like rebellion, social
movernent “sit-in protests-and violence, transformation through law
is Stematic, conscious, rational, peaceful and based on social
ialogue."** The elaborate institutional arrangements, explicit tech>
niques and effective processes that law employs add to its strength of
social control."*”7 Popular notion that law flows from the formal state
power and that in democracy it reflects community’s general will adds
to its respectability. Personal laws, which are based on cultural and
religious morality, command obedience partly by their appeal to tra-
ditionalist feelings. Law’s concurrence with morality also makes the
people to obey law. Obedience to law in order to avoid inconveniences,
to conform to expectations, and to promote socialisations is common
pattern of human behaviour. It is also motivated by habits, fear of pun-
ishments and desire for rewards. Legal system’s formal condemnation
of an evil builds opinion against the condemned act making the peo-
ple to eschew it. Remedial mechanism created under the law gives
reliability about its application and confidence about legal policy’s
success. Problems like misdistribution of wealth or power, crime and
unrest, destruction of resources, hunger and oppression call for radi-
cal changes for which law gives its pushing force. As an authoritative
expression of state’s policy and reflection of accepted moral value, law
is regarded by the people as guideline for their good conduct.
Limitations of law in creating social change can be traced to several
factors. Lack of social preparation for changing the mindset obstructs
a big change. Law being a policy instrument, believers in contrary
population inasmuch as our materialistic resources are limited and the claimants are
many. The concept of sustainable development which emerges as a fundamental duty
being
from the several clauses of Art. 51-A too dictates the expansion of population
kept within reasonable bounds.”
at pp. 442-
"5 Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P, (1979) 2 SCC 409
43.
1X%6 Steven Vago, Law and Society, at p. 225.
187 AR. Blackshield, supra, n. 1 at p. 22.
ie pe ee ne
policies or values may not be cooperating for change. There may be

opposition from those who defend status quo on account of several
reasons. Steven Vago lists social, psychological and cultural factors,
which-¥ésist social change."®* Vested interests, rigid class and caste
patterns, ideological resistances and organised opposition obstruct
law’s effort of engineering social change. Psychologically, pressures
of habit, thrusts of motivation, prejudices of ignorance, selective per-
ceptions and inadequate levels of development weaken the process of
law-induced social change. The cultural characteristics such as fatal-
ism and ethnocentrism also block social transformation.
Regarding Indian experience about social change through law,
Upendra Baxi considers that crisis of legitimation of the law brought
crisiof
Out sthe Indian legal system. He observes:
of law,
“What is truly striking in Indiaisthe lackof respect for rule
by the people but also by those who make and enforce them.
not just
Legalism in the sense of a moral or ethical attitude prescribing
that the
legal rules ought to be followed because they are rules of conduct is not
dominant characteristic of Indian behaviour and culture.”"*?
He lists following factors that obstruct redistribution-oriented social
change. First, the political eli upper. middle class have not
‘intérnalised the.value-of-legalism. Second, large segment of people
regard rule-following as not merely as unjustified but also as coun-
terproductive. Third, ther< is corruption and abuse of power. Fourth,
“thie
countervailing power in the form of bandhs, strikes and hartals
introduces agitational politics or direct action politics that challenge
the legal system, bring arbitrariness, disturb the synchronisation
between law and social policy decision and slip away from preven-
tive crisis management. Fifth, convergence of political, legislative and
administrative powers has resulted in legitimating the power grab-
bing or sharing leaving the genuine tasks of redistribution through
law unattended. Sixth, low commitment to legalism is also in response
to the compulsion to satisfy the basic needs of people. The practices of
child labour, prostitution, begging, child selling and slum dwelling
are manifestations of need-propelled deviances from law.
'** Steven Vago, Law and Society, at pp. 236-41.

' Upendra Baxi, The Crisis in Indian Legal System ((Vikas Publishing
ishing House, Ne
House, New
Delhi 1981) at 5.5. Sal oy
' Ibid, at pp. 7-15.
Concept of culture and competence for authoring transformation 49
r emeery m
1.13 Concept of culture and competence for authoring
transformation

Since culture isone of the major factors that inspire, insist and often
impede legalpolicies of social refoarms,
discourse on culture, social
transformation and law is undertaken in this section. Culture is con-
cerned with the intellectual, spiritual and creative aspects of collective
life. It may be described as the totality of the basic impulses of the
social conscience." According to Abid Hussain, “culture is a sense
of ultimate value possessed by a particular society as expressed in its
CO.uiective Institulions by its Individual members In. heir d ispositions,
feelings and attitudes and manners as well as significan
forms which
t
they give to material objects." Tylor considers culture as that complex
whole which includes knowledge, belief, art, morals, law, custom, and
any other capabilities and habits acquired by man as a member of the
society."? Culture partly consists of norms for, or standards of behav-
iour within and outside the family, and its patterns range from habits
of dress, diet and work to bodies of customs, religion and typology of
knowledge system. It designates a way of life and stimulates emo-
tion." Bhikhu Parekh views that it is a historically created system-Of~~
beliefs and practice intermsof whicha group of human.beings under-
stand, regulate and structure their individual and collective life."%° At
the basic level it is reflected
in language, embedded in ethnicity, moral-
ity and religion, and connected with human activities and relations. In
the above anthropological sense, it refers to a system of shared mean-
ings through which collective existence becomes possible.
1 MLC. Setalvad, supra, n. 155 at p. 73.

12 Abid Hussain, The National Culture of India (National Book Trust, New Delhi
1994) at p. 3. Ie, |
3 Edward Tylor, Primitive Culture, Vol. I (1871 rept. 1958) at p. 1 cited in Milton
Singer, Encyclopaedia of Social Science at p. 527. .
194 AL, Kroeber and Clyde Kluckhon, The Nature of Culture (1952) at p. 187 cited by
Milton Singer.
John
15 TS. Eliot, Notes Towards the Definition of Culture (London 1948) at pp. 14-21,
Rasheeduddin Khan,
Lewis and John Phillip Gillin, Cultural Sociology (New York 1948);
process of
”The Problematique: The Heritage of Composite Culture as an input in the
e Culture of
building a new national identity” in Rasheeduddin Khan (Ed), Composit
Allied Publisher s, New Delhi 1987) at pp. 24,
India and National Integration (IIAS and
30. .
Palgrave Macmillan, New
1% Bhikhu Parekh, Rethinking Multiculturalism (2nd Edn.,
York 2006) at p. 143.
P
Sp yh e
1.13.2 Urges and means towards perfection
Going beyond culture’s potentiality of keeping individuals or even
community tightly bound by its behavioural patterns, Mathew Arnold
thought of attainment of perfection in or through cultures a desirable
social practice.” Arnold viewed that culture consists in balanced cul-
tivation of all faculties of man: intellect and emotion, intuition and
self-perception; and its perfection involves fine tuning of human sen-
sibilities and assertively achieved hegemony of an identifiable set of
ideas over all other ideas in society."* Passion for sweetness and light,
or love and knowledge, pursues the path of perfection. Gandhiji and
Tagore have also viewed urge for perfection as central to the domain of
culture. Rejection of blind beliefs, discarding of gender bias, modifica-
tion of old conventions, and religious ceremonies to suit the changed
circumstances, and novel experiments for better social values have
been preached by Gandhiji in the course of refinement of culture."
Tagore believed in the creative value of human freedom and in the
validity of reason as a guide against dogmatism and restraints of his-
tory, and as a means to contribute to the progressive life of humanity
by perfecting the human nature.*”°
Veena Das regards Arnold’s view on perfection of culture as having
profound implications because of competition and tension between
community and state in bringing refinement of culture.*” Refinement
involves elimination of so.ne values and establishment of some other.
Although state’s justification for interference consists in upholding of
human rights and implementation of social justice policies, the risks of
State becoming prime value giver in cultural process may also surface.
Edward Said views that when culture is consecrated by the state, it
becomes a system of discriminations and evaluations through which
a series of exclusions can be legislated from above.” Although Robert
Unger considers that culture is more organically related to the tradi-
tions of groups and that state is not appropriate custodian of tradi-
tion, he is not averse to substitute theory of organic group by the ideal
'"” Mathew Arnold, Culture and Anarchy, J. Dover Wilson (Ed.) (Cambridge
University Press, Cambridge 1971) at pp. 44-53.
"Mathew Arnold, Literature and Dogma (Preface) cited by V.K. Gokak, India and
World Culture (Sahitya Academy, New Delhi 1994) at p. 9.
'® Harijan, 8-12-1936; Hindu Dharma, Ch. 21 at p. 30.
S. Radhakrishnan, Living with a Purpose (Orient Paperback 1985) at p. 108; Our
Heritage (Orient Paperback 1985) at pp. 28-29; Pandit Nilakantha Das, Indian Learning
and Culture (Orissa Sahitya Academy 1993) at p. 125. ;
*! Veena Das, “Cultural Rights and the Definition of Community” in Oliver
Mendelsohn and Upendra Baxi, The Rights of Subordinated Peoples (Oxford University
Press, New De‘hi 1996) at pp. 117, 122.
2 Edward W. Said, The World, the Text and the Critic (Faber, London 1983) at p. 10.
\ i et a
fi 3 y vay i .
Ue os ae ‘74a
Concept of culture and competence for authoring transformation

a 51
of empowerment.??? From the perspective of the disadvantaged sec-
tions of the society or victims of cultural fault—women, untouchables,
tribals and minorities—a need-based policy of empowerment can be
regarded as well within the domain of welfare state and human rights
system. But the overreach of state policy or reactionary approach of
cultural community, because of the latter’s mooring in emotion, causes
disturbance. According to Veena Das, because of double definition
of culture the question of cultural rights gets squarely placed in the
larger questions of passions rather than interests.?%
Culture and traditi as products
on of the past often constitute mixed
bag of good and evil. As Nietzche said, it is dangerous to be an heir
because it is inheritance to centuries of both wisdom and madness
of the past.?° To get relief from the burden of the past, one should
realise the lessons from the past. Each culture flowers its characteris-
tics in response to the peculiar pressures and challenges, facilities and
conveniences presented by nature, circumstances and interactions.
Originated predominantly as a religious culture, Indian culture was
influenced byintroduction ofmultiple ethnic, religious andlinguistic
w
aD i
aaa . r 7 o : Pr ERR wre
groups ofpeople in course of time with different aesthetic attainments
and outlooks. Compositenessof culture was accompanied by a strong
tradition of tolerance andcoexistence. Jawaharlal Nehru viewed:
“Old established _traditi be’ easily scrapped or dispensed
with;in moments
of crisis they.rise.and dominate
the minds of men, and
offen, as we have seen, a deliberate attempt is made touse those tradi-
tions to rouse a people
to a high pitch of effort. and sacrifice, Traditions
have to accepted
be tolarge
a extent and adopted and transformed to
meet new conditions and ways of thought, and at the same time new
traditions have to be built up’> Rett cttiots.
It is this interaction between culture and law that makes historical
discourse relevant in legal analysis. While rational spirit of inquiry
shal! be carried on to question the accumulated decrepit of the past
in order to avoid sluggishness of the cultural stream, parts of the old
worth to be preserved shall be harmonised with the driving force of
the new age. Every generation of humanity feeds its own new morsel
of thought and action to the social body to ensure its vitality.
at pp. 339-40.
23 Robert Unger, Knowledge and Politics (Free Press, New York 1985) cd
24 Veena Das, supra, n. 201 at p. 123. ;
25 Cited in Jawaharlal Nehru, Discovery of India (JNM Fund and Oxford, Vpiversity
a ae See
Press, New Delhi 9th impression 1989) at p. 36.
INS INNO MOLGIT
6 Ibi p. 53.
atd,
1.13.3 Culture, social transformation and law

Yogendra Singh regards culture as unique human reality, emanating
from humankind’s unity with nature and manifesting in the techno-
logical, mental, moral, social, aesthetic and spiritual achievements of
humankind. It gives meaning to our relationships and forms our sub-
jective identity. He said:
“Culture, therefore, enters into the process of social change in many
forms and at various levels. It defines the quality of social change as
its indicator. By selective adaptations to outside cultural forces, it has
a large measure of resilience. With all its institutional pervasiveness, it
has a core which acts as a filter or a moderator to the outside forces of
cultural contact and change. This also explains why in each mainstream
culture one may find existence of subcultures and counter-cultures.’7°”
In understanding the nature of social change, occurrence of change
taking place in the field of culture needs to be properly perceived.
According to Yogendra Singh, while cultural policy in the post colonial
period has exhibited more concern for preservation of cultural identity
and less linkage to the policies of social and economic development,
the influence of folk and textual cultural tradition upon society, the
impact of technology upon culture to render it marketable commod-
ity and the inter-cultural interactions have shown the need to balance
with the latest changes.”°* He suggests for evolving a creative balance
between continuity and change in cultural policy. In fact, as Lawrence
Friedmann viewed, culture changes very slowly and with great dif-
ficulty, and it resists manipulation.?®
Bhikhu Parekh focuses on the mutual influence between culture
and the economic, political and other institutions.?"° No culture is ever
free from contestation and change. Cultureis not a passive inheritance
but'an active process of creating meaning. In response to several fac-
fors such as technology, conquest, wars, and even natural calamities,a
society's culture is prone to change." SSS
*” Yogendra Singh, Culture Change in India (Rawat Publications, New Delhi 2000)
at p. 25.
8 Ibid, at pp. 108-11.
* Lawrence Friedmann, “The Place of Legal Culture in the Sociology of Law” in
Michael Freemann, Law and Sociology (Oxford University Press, Oxford 2006) at pp. 185,
191.”Societies like to think of themselves as unique, as having some sort of core that
sets them apart from everybody else; ‘culture’ is thus a kind of thick coat of armour
or protective skin.”
* Bhikhu Parekh, Rethinking Multiculturalism (2nd Edn., Palgrave Macmillan, New
York 2006) at pp. 152-53.
*"' For a distinct proposition see, S.C Das, who said in (1948) 7 CAD at p. 571 “Culture
is a gift of history. India is an ancient country; consequently no new culture
can be
imposed on it... Ours is a culture that has gradually developed with our long
history.”
Concept
OSS ea of culture
ES
and competence for authoring transformation
a oat eal AA a al 53
Because of the intensive human actions involved in the working
of culture, mutual influence between culture and society, with scope
for social change and for interaction of human rights, is paradigm
like. Since culture is community-made, in tradition-bound society, its
impact is immense. Culture’s anchoring in folk psychology, level of
group conscience and the extent of creative leadership—either of cul-
tural agents or of political persons—are the factors that substantively
decide the phase, extent and direction of change in culture. Even in
communist countries like China it is recognised that the power of
cultures is deeply rooted in the vitality, creativity and cohesion of-a
nation; that culture is interactive with economic and political activi-
ties; and that its status and functions are becoming more and more
outstanding in the competition in overall national strength.*”
From the above analysis it follows that culture has a very wide can-
vas touching upon substantive area of human capacities, qualities and
actions;that itis not stagnant, but is prone to refinement or.degradation
depending upon the direction of force of. change;.and that its rooted-
ness in society gives rise to two power centres, state and community-
for its conservation and refinement. Owing tothe vast zone of human
activity influenced and even monitored by culture, various dimen-
sionsof human rights and collective rights get entangled in cultural
process or when culture is at work. Most prominent among them are
religious freedoms, language rights and ethnicortribal rights since
religion, language and ethnicity constitute major constructs of culture.
loons freedom, both individual and denominational, enables con-
tinuance of religious traditions, beliefs and activities, which form an
important part of culture. The morals, customs and laws relating to
family, because of their historical genesis in socio-religious factors or
communitarian factors, are sometimes projected as outcomes of dis-
law can
tinct culture of the community. M.C. Setalvad views, “Positive
truly be.
said.to.be
thus born out of and an integral part of theculture
of man. There be no antithesis between law and culture and
can thus
Law cannot
their inter-relation must necessarily be close and intimate.
ofsociety which itis designedto
be oblivious of the accepted notions
serve. 233 Sie
Wie ee ene Trick
—Law is part of a nation’s culture, being product of group conscience
and group activity. Bornin commonly accepted moral principles, partly
influenced by enduring metaphysical principles of religion and grown
in the warmth of ethical considerations of coexistence and welfare of
all, law mirrors culture of the community. Historical school of legal
thought ridiculed deducing of Constitution and laws from abstract
212. Bhikhu Parekh, supra, n. 210, at pp. 74-75.
213. MC. Setalvad, supra, n. 155 at p. 84.
54 Law and Socjal Transformation
principles of codification ith society’s tradition _and

long accepted be the outcome of
practice, and argued that they should
acciden-
ofuct
a gradual and organic development. Law is not a prod
tal or arbitrary origin, but it grows with the growth, and strengthens
with the strength of the people and finally dies away as a nation Toses
its"identity.2* Law is to be found in the custo faith and
internally ioperating
traditions of people or in thesae citi! Sai silent forces rather
than in the @ Tawgiver. Each nation and generation gradu-
ally unfolds the spirit of thé age’and contributes to paving the road
of self-reflecting realisation of freedom.”"> Hence, law varies with cul-
ture. Donald Black says, “Where culture is sparse so is law; where it is
“rich, law flourishes." Butthis.is oversimplification of the connection
because it is the diversity, distortions and faults in the culture that
impose pressure upon the legal system to have a wider role of social
regulation. If law’s flourishing is to be understood in a limited sense
of people’s acceptance of law in their day-to-day behaviour because
of norm abiding practice of culture, the analysis does not address the
larger issue.
In fact, modernisation poses tall challenge to changeless continu-
ation of culture and tradition. The human rights values and welfare
goals of the modern age try to bring lot of rationality and humanism in
individual and social conduct,
NILA LEE EES CNL
and dispel the faults of patriarchy and
ER PRL SLE EN
caste discriminations. The #mpediments in the name of protection of

culturetothe efforts of introducing gender justice reforms in personal
law or to the social reform policies that eradicate social evils need to
be surmounted by synthesising the major thrust of Indian culture and
humanist values
in modern thoughts. The instances of cultural polic-
ing against beauty show and the awareness created by feminist writ-
ings call for greater social alertness through widespread and mean-
ingful education.
1.13.4 A note on Indian culture

A true insight on Indian culture can be had by looking to the system
of rich values of humanism meticulously built through the basic con-
cept of indebtedness (runa): the indebtedness to the ancestors, to the
sages, and to the gods. In a larger sense, it comprehended obligation to
the society, to the environment and to oneself to excel in coexistence
with others.” Control over, and guidance of desires and economic
“4 W. Friedmann, Legal Theory (5th Edn., Universal, New Delhi 1960, rept. 2003) at
pp. 210-11.
*!° Ibid, at p. 213 citing Hegel.
- Donald, J.'Black, The Behaviour of Law (Academic Press, London 1976)
at p. 63.
'” S.K. Ramachandra Rao, Indian Cultural Heritage (Bhojasmriti, Bangalore
2003) at
acts by just law were prescribed as paths of good conduct (trivarga
principle). Unlike the western and modern thinking, the legal system
was embedded in basic rule that required performance of each one’s
duties towards others and to the society at large. In fact, basing human
actions in duties and other—regarding considerations builds up a
strong system sensitive to social welfare and practicing tolerance.?®
Social solidarity, which Duguit thought of in modern times,’ was
prevalent there and it thrived through social cohesion and harmony.
The idea that there is no right except the one to perform one’s duty was
well propounded and emphasised in ancient Indian thinking. It was a
culture based neither on individual rights, nor on power relations but
on community’s conscious insight for well being of all. As Rigveda
Samhita said, “May our resolutions be the same, may our hearts be
united, may our minds think alike, so that we may all live here well
and together.” Withdrawal from passionate interests in worldly affairs
formed the essence of religious approaches and constituted spiritual
orientation of Indian culture. Buddha and Ashoka preached morals
for virtuous life as a model of social culture. In such society, peo-
ple were not idle recipients of legal norms given from the above; but
were active cultivators of sound usages to concretise them into bind-
ing principles.”° Smriti writers had to respond to the vedic visions of
humanism and fraternity and to the social aspirations as developed in
customs. The inputs of justice and good conduct (sadachara) inherent
in religious culture took the discourse on human welfare far ahead
of pedantic inquiry on movement from status to contract, exhibiting
profound strength for internal rectification." With a sound notion of
virtuous law, mechanism for its effectuation was given ample consid-
eration. Law was regarded as the king of kings, and touchstone for
valid actions.”
Sir Henry Maine regarded that in progressive societies, legal sys-
tems were propelled by desire to improve and develop and go beyond
the phase of code through creative techniques of legal adaptations,
whereas in custom ridden and status bound societies fixed legal condi-
tion dominated by family dependency narrowed the scope of growth
of individual members.?2 In Ancient India, according to him, the dom-
p. 12; see also, Sisir Kumar Mitra, The Vision of India (Jaico Books, Bombay 1949).
218 Thid, at p. 23.
219 W. Friedmann, Legal Theory, at p. 232.
at
20 Sisir Kumar Mitra, Evolution of India Its Meaning (Jaico Books, Bombay 1968)
pp. 62-63.
2 See tifra, Cn. 2.
|
22 Brihadaranyakopanishat, I-1-14
W. Friedmann, Legal
23 Sir Henry Maine, Ancient Law (Ed_), Pollock (1906) at p. 22;
Theory, at pp. 215-17.
56
a nae
Law and Social Transforma
Se A SSS
tion
eee
ination of the patriarchy constricted the position of woman, child and

slave whereas in ancient Rome the deliberate movement from status to
contract expanded the rights of these classes. It is submitted, although
family status and caste status had their own impact upon the extent
of human rights of some sections of the society in ancient India, it is
far fetched to reason that it was a static society bereft of progressive
features. Possession of freedom of contract is too narrow a criterion to
determine the existence of a progressive society.
Julius Stone looks to the tradition-bound character of Indian society
arising from its richly varied institutions and values. Its belief in per-
manence of existing social arrangement, its reliance on family rather
than state for social and economic security, its confidence in karma phi-
losophy that sufferings and frustrations of the present will be made
good by the serene blessings of future incarnation, and its trust in sad-
hus and religious literature as great social inheritance build a fort into
which penetration is an unenviable task. Stone observes, “The very
central notion of a struggle of competing demands, and of therefore
the necessary role of law in dynamic adjustment, stands ill with the
traditional ideals of the peasants of India.””*4
Indian culture is not monolithic. It is composite. In addition to mul-
tiplicity in religion, language, and geographic regions, ethnic plural-
ity has provided basis for cultural diversity. Subaltern cultures coexist
with mainstream culture. T’.¢ survival of such cultural identity within
the framework of humanist values can be safeguarded with certain
amount of meticulous arrangements and preparations.
1.13.5 The question of competence to author a change

The question, who has competence to author a change in the culture-
related law, is viewed by Ehrlich and Gierke from a communitarian
viewpoint. Ehrlich considers that tribal allegiance, familial obligation
and religious piety provide motive force to obey social norms.” State
is one amidst a number of associations like family, religious body and
corporate entity, and has the responsibility of protecting its institu-
tion and facilitating other associations. Law is derived from social
facts anchored in the conviction of association of people. Living law of
people is manifested in the norms of associations. It is a law that actu-
ally lives in the society in permanent evolution and constant social
response, outpacing the rigid state law. He viewed law as both prod-
uct and stimulus of social development. By locating source for legal
development in society rather than in legislation or judicial decision
4 Julius Stoiie, Social Dimensions of Law and Justice, at p. 112.

2% W. Friedmann, Legal Theory, at pp. 248-51.
or juristic writing, he gave a dynamic role for evolution of law from
social experience. He argued for minimisation of differences between
law and other norms of social compulsion. Gierke regarded state as the
highest corporate unit having power of superintendence on purpose-
fulness and legality of other corporate bodies without encroaching
their freedom of self-administration.° State’s role is primarily that of
facilitator. The self-emerging image and spontaneity of functioning of
associations contribute to plurality of group power in the community
instead of building a monolithic society. Consequent requirement of
self-determination in each body calls for norm making process from
within. The analysis made by these scholars emphasises a decisive say
of the community in the matter of family law and governance of reli-
gious bodies or associations.
In the context of Indian cultural scene, the question of competence
of authoring the direction and process of change many a times attains
a sensitive form in the matter of reform of personal laws and religious
practices. Should the state be a silent spectator to the gross human
rights violations within the associations or in religious practices or
in customary practices of personal law? Should the society tolerate
unfortunate recurrence of human sacrifice (narabali), sati, devadasi,
child marriage, untouchability or dowry as mere societal aberrations
rather than considering them as serious cultural faults to be urgently
and effectively dealt? To adopt a passive approach is to dehumanise
the system. Human rights values and civilisation’s conscience call for
an action plan that needs effective implementation to purge such evils.
An antidote to such group-evolved and group-monitored improprie-
ties can and shall be given by canalising the group strength for human
rights awareness and advocacy. A positive sign in this regard during
the last two decades is the creative role and leadership donned by the
civil society groups or NGOs. In fact, they fill the social gap and use
the formal system of grievance redressal in addition to contributing to
build a vibrating social conscience.
The question of competence for bringing change should not be made
a prestige question in view of the task of setting pattern for desirable
social changes. The question is relevant only about choice and appli-
cation of appropriate methods in the process of bringing change. In a
democratic system adhering to the values of human rights and social
welfare, coordinated actions on the part of the society and state go a
long way in planning and effectuating social changes oriented towards
human development.
26 Ibid, at pp. 237.

58 and Social Transformat
Law Se ion
peer eee rar ee ee ee ere ee eee
1.14 Multiculturalism and social transformation
The fact of cultural diversity has been responded in recent decades

by construction of a value recognising legitimacy of the differences
rather than by approving wider society’s assimilating or homogenis-
ing thrust upon the smaller ones. In India, because of vastness of geo-
eS
schisms in religions” and local variations. Multiculturalism_basically

aspires for a society in which different cultures are respected on equal
footing; their institutional autonomy is safeguarded; theirsocto-eco-
nomic marginalisation is avoided; and Social diversity celebrated.” It
sets terms of mutual interaction for social cooperation. According to
Bhikhu Parekh it is a body of beliefs and practices in terms of which
a group of people understand themselves and the world and organise
their individual and collective lives.”* Will Kymlicka considers it as a
discourse on ethno-cultural diversity where minorities.are.seen.not.as
a problem to be solved or.athreat to be neutralised, but as legitimate
members of the state whose identity and culture must be respected.”
This enhances and balances individual freedom and autonomy of the
group.” Linking the policy of multiculturalism with social trans-
formation has both theoretic and practical justifications since it is a
*7 P. Ishwara Bhat, “Constitutional Multiculturalism—Conceptualisation and

Jurisprudential Significance” (1999) 4 National Capital Law Journal 1 at p. 8; Sarah
Joseph, “Do Multicultural Individuals Require a Multicultural State” in Kushal
Deb (Ed.), Mapping Multiculturalism (Rawat Publications, New Delhi 2002) at p. 159;
Rajeev Bhargava, “The Multicultural Framework” in Kushal Deb at p. 77; Valerian
Rodrigues, “Is there a case for Multiculturalism” in Kushal Deb (Ed.), at p. 106; R.
Havighurst, Anthropology and Cultural Pluralism (1974) at p. 3 cited by Robert C. Post,
“Cultural Heterogeneity and Law: Pornography, Blasphemy and the First Amendment”
76 California L. Rev. 297; Horace M. Kallen, Culture and Democracy (1924) at p- 61; Jurgen
Habermas, “Multiculturalism and the Liberal State” (1995) 47 Stanford L. Rev. 845;
D.L. Coleman, “Individualising Justice through Multiculturalism’ (1996) 96 Columb.
L. Rev. 1093; Joseph E. Magnet, Constitutional Law of Canada, Vol. II (4th Edn., Yvons
Blais Inc. Cowansville 1989) at p. 38.
228 Bhikhu Parekh, supra, n. 210 at pp. 2-3
Will Kymlicka, “Liberal Multiculturalism: Western Models, Global Trends, and
Asian Debates” in Will Kymlicka and Baogang He (Eds.), Multiculturalism in Asia
(Oxford University Press, New York 2005) at p; 22;
P. Ishwara Bhat “Constitutional Multiculturalism and Human Rights Values:
The Ethos, Interactions and Responsibilities” (2003) Cochin University Law
Review;
Will Kymlicka and Ruth Marin, “Liberalism and Minority Rights: An Interview
”,
(1999) Ratio Juris 12.
Multiculturalism and social transformation 59
ee
feature of society and a mindset for harmony." In India it became
greate social strengt
st h and successful strategy in managing the iden=
tity-retention issues, which emerged due to socio-economic changes.
Gurpreet Mahajan refers tthe Cape eT that India has
mandated by employing multileverfédéralism, by accommodating
religious diversity, by promoting linguistic diversity, and safeguard-
ing ethnic pluralism and by protection ofcultural rights.’ Treating of
the diverse identities as equal without pampering or denigrating any
of them but assisting their continuation within the framework of con-
stitutional liberalism and national unity has both guided and control-
led harmonious society's approach to social transformation.23
Cultural monism, which was theinitial cluster of thoughts in the
west, wasevolved on the basisof uniformity of human nature, com-
mon element ofreason andsimilarity in morals. The Greek philoséphty
and Christian theology believed in single superior culture.3* Liberal
scholars Tike John Locke and J.S. Mill too favoured monism. Viewing
that’reason was the highest human faculty that formed the basis of
good life, Locke justified colonialism as application of the reason of
economic gain that supported superior culture.” J.S. Mill, although
convinced about diversity’s addition of richness and variety to human
nature, pleaded for blending or admixture of nationalities for the
sake of excellence.? These thoughts failed to consider that no way
OA fotatrot ike
of life could be based on one value alone and that human.capacities

and virtues flower into different directions making them difficult to
synthesise
into a monolithic entity. Practically,.monism motivated
the
dominant group to go for
coercive assimilation and hegemony
upon
the- vulnerable ones. Approach of intolerance and inequality on racial,
linguistic and religious matters had yielded most tyrannical result in
different continents.””
1 For the proposition that equality principle gains central place in this task, see,
CharlesR. Lawrence, “Race, Multiculturalism and the Jurisprudence of Transformation”
(1995) Stanford L. Rev. 47 at p. 819.
282 Gurpreet Mahajan, “Indian Exceptionalism or Indian Model: Negotiating
Cultural Diversity and Minority Rights in a Democratic Nation-State” in Will
Kymlicka and Baogang He (Eds.), Multiculturalism in Asia (Oxford University Press,
New York 2005) at p. 288-13; see also, I larihar Bhattacharya, “Forms of Multicultu ralism
and Identity Issues in India” in Canadian Diversity (2005) 4:1 at p. 46; see also, P. Ishwara
Bhat, “Multicultural Federalism in India: Values, Trends and Strategies” (2001) Kerala
University Journal of Legal Studies 23.
233 Shashi Taroor, “Chasing a Dream’, Times of India, 12-12-2006.
24 Bhikhu Parekh, supra, n. 210, at pp. 19-33.
35 Ibid, at pp. 37-39.
236 Thid, at p. 46. waned ie
rity
2” Extensive killing of Jews byNazinstate.in,Germany..to..maintain superio
Watt, History of World in the Twentieth century (1967) at
and purityof Aryan race..Caer D.C.
eed
al Pluralism in the Global
pp. 525-26; Torture ofa Origines in Australia, S.C. Dube, “Cultur
of cultural plural-
In contrast, the inescapability and desirability
ism were emphasised by Vico, Montesquiew-and Herder.*® According
to théf"Var human societies emerged as products of varying
ying
self-understanding phenomena. Harmony between reason and reli-
gion realised human potentiality, and ensured both stability and vir-
tue. Ample scope for social diversity conceptualised good life lived
in different and worthy ways. All cultures"were Unique expressions
of human spit and TeeTowers iT ie-garder, “beautifally-comple-
ment other, adding to the richness of the world. Each became
eached
valuable and worth-ch éfis
because eachhing
Contributed a distinct
tune to the universal symphony.
Modern political thinkers like Rawls, Raz and Kymlicka appreci-
ate both shared human nature and cultural embeddedness of human
beings and use the concepts like justice, morality and liberty to rec-
ognise and respect diversity. According to Rawls political liberalism
could provide a sound basis for just polity by accommodating differ-
ent doctrines of the good. The spirit of tolerance, stopping of conflicts,
avoidance of contentious issues of a moral kind and maintenance of
peace and order supported the values and sentiments on justice and
vice versa.” The question of justice could never be raised and set-
tled in cultural vacuum. Viewing that human well-being is socially
structured, Joseph Raz recognises the functions of culture in ena-
bling the people to make intelligent choices, espouse common identi-
ties and share social relations.¥° He favoured the balancing between
autonomy and freedom, which are the two basic functions of culture.
According to Will Kymlicka culture is a condition for the development
of autonomy. He argued that national minorities should have a right to
maintain themselves as distinct cultural units, enjoy self-government
and formulate their own cultural, language and land policies.*4* The
minorities were also bound to ensure basic civil and political liber-
ties within the community. It is the presence of common desideratum
of these values amidst different cultural communities that promote
mutual respect.
Inferring from study of human nature, Bhikhu Parekh regards that
human beings are culturally embedded in the sense that they are born
Context” in A.R. Momin (Ed.), The Legacy of G.S. Ghurye (1996) at pp. 97-98; Christian
crusade against the Muslims Will Durant, The Age of Faith (1950) at pp. 589-15 ethnic
clashes in Sri Lanka and Rwanda in 1990s are examples of intolerant approach.
** Bhikhu Parekh, Rethinking Multiculturalism (2nd Edn., Palgrave Macmillan, New
York 2006) at pp. 50-72.
® Ibid, at pp. 84-85; John Rawls, Political Liberalism (1993), at pp. 64, 177, 199.
* Joesph Raz, The Morality of Freedom (1986), at pp. 360-75; Bhikhu Parekh, at
pp: 91-95.
1 Will Kymiicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995)
at pp. 84-01; Bhikhu Parekh, supra, n. 238 at pp. 99-05. Tox
Multiculturalism and social transformation 61
into, raised in and deeply shaped. by.their cultural communities. As
heirs to
o different, traditions, human. beings think and dream differ-
ently and apply the capacities for creativity to build cultures of diverse
nature. “Far from bein urce of puzzle, cultural
diversit
featyure-
is anof-h
integraluman
. _existence.”“” While cultural
communities thrive through common bonds and loyalty of members
to culture, fairness in intra-group relations adds to the growth of cul-
ture. Equally important is the scope for inter-cultural tolerance and
interactions. Without creating conditions conducive for respecting
the differences and nurturing the minority self-confidence, cultural
diversity will not flourish. Further, it is through inter-cultural interac-
tion that different cultures correct and complement each other, expand
each other’s horizon.of.thought and alert.each other to new forms of
human fulfilment? According to Amartya Sen, multiculturalism not
only concentrates on the diversity as a value in itself, but also focuses
on the freedom of reasoning and decision making, and celebrates cul-
tural diversity in free atmosphere.** Thus, cultural diversity, with its
component of freedom and aspiration for welfare, has a prominent
role to play in the context of social transformation.
Rajeev Bhargava analyses multicultural framework from the angle
of balancing between identity consciousness and social solidarity.”
Identity arises from _sameness.of.relevant.features..within.a.commu-
nity with common beliefs, desires and media. It is linkedto collec-
tive goalofthe “community. But hardening of identities and closureof
communities. invariably generate.communal.exclusion. Eurther, aim-
ing at cultural pparticularity, the aggregative power ofthe community
may overpower1individual. freedom.* These are problematic devel-
opments arising from ignoring
i the imperatives of justice and liberty.
According to Bhargava, an appropriate framework of multiculturalism
should avoid not only particularised hierarchy that allows dominant
community to dictate upon the subordinate one and universalistic
equality that denies significance of cultural differences, but also cher-
ish epalitatien—likerasnae 47 This model projects equal recognition
with
satisfy
of cultural groups along ing | Tequirements of basic indi-
vidualliberties. This is in contrast to egalitarian—authoritarian model,
oP ere
which treats all cultural groups including those that violate freedoms
22 Bhikhu Parekh, supra, n. 238 at p. 126.

83 Ibid, at pp. 166-69.
24 Amartya Sen, Identity and Violence: The Illusion of Destiny at p. 150.
445 Rajeev Bhargava, supra, Nn. 227 at pp. 77, 98.
me" Thidvat p.94:
247 Ibid, at pp. 85-86.
62 Law and Social Transfor
OEmation
ATE
F ee e Ee ELAN I EOE
of individuals. Democratic participation has crucial role in activating
the egalitarian—liberal model, he views.”48 .
The political structure of multicultural society shall shed assimila-
tionist role, and employ the concept of justice in the matter of cultural
rights and opportunities. As Parekh observes, “Decentralisation of
power has a particularly important role to play in ensuring justice in
multicultural societies. Since different communities regularly interact
with each other in the normal course of life at local or regional lev-
els, respect for their differences at these levels matters to them greatly
and shapes their perceptions of each other and state.’ In the light
of British experience about the policy of egalitarian respect for differ-
ence in the context of Sikh turbans, and the French policy on hijabs
Parekh center stages the equality concept in managing multicultural
society. He also points out that in addition to equality, the values of
free speech and secularism are also prominent for multicultural soci-
ety. The concept of substantive equality has a great importance for
tribal development.
Globalisation has posed new anes ges tomulticulturalism, It has
profoundly influenced several social institutions including culture.
The flow of commodities;
capital, people and values transcending the
cultural barriers has intensified the process of cultural interaction."
Acceptance of a new global culture and rejection of total loss of cul-
tural identity of local culture are the two contrasting ways through
which cultures have responded. Emergence of cultural homogeni-
sation or cosmopolitanism has resulted from global mass media, glo-
bal symbols, market andorganisations.*? Western cultural model—its
language and way oflife—has dominated in this process. In contrast,
the proponents of cultural polarisation look to the basic differences in
civilisations and the intensity of civilisation-consciousness and hold
that cultural polarisation has merged as a result of thrust on regional-
ism to countervail globalisation.254 There is also a view that cultural
hybridisation has taken place as a midway path because of network
of social relationships with a flow of meanings, people, and goods
between its diverse regions.%5 The global—local nexus has reinforced
48 Ibid, at pp. 97-98.
*” Bhikhu Parekh, supra, n. 238 at p. 212.
0 Ibid, at pp. 243-61.
*! Mohamed S. Abdel Wahab, “Cultural Globalisation and Public Policy: Exclusion
of Foreign Law in the Global Village” in Michael Freeman, Law and Sociology (Oxford
University Press, Oxford 2006) at p. 360.
2 Ibid, at pp. 362-63.
3 Ibid, at p: 365.
4S. Huntington, “The Clash of Civilisations? The next Pattern of Conflicts” (1993)
72 Foreign Affairs at pp. 22-50.
8 J. Tomlinson, Globalisation and Culture (Chicago 1999) at p. 141.
Law and development
oe
e enter earner e 63
the hope and belief in human rights values. Coexistence of tradi
tional
local culture along with cosmopolitan culture has come to stay
as a
balancing phenomenon of multiculturalism. What Gandhiji had state
d
has become a relevant policy arising from post-modernist critique of
cultural interaction. Gandhiji had said, “I do not want my house to be
walled in on all sides and my windows to be barricaded. I want the
culture of all the lands to be blown about my house as freely as pos-
sible. But I refuse to be blown off my feet by any.”
On the whole, the factor of multiculturalism has necessitated the
task of faking intoconsandider
tity conservation,.justice
thefactors
atio n ofcultural rights, iden:
liberty in the course of bringing reforms
touching upon.educational. rights, religious freedoms, personal law
and language rights and.in ameliorating the interests of indigenous
communities as well as meeting the problems.of globalisation vis-a-
vis culture.
2a LEO
1.15 Law and development
1.15.1 Developmental issues and law

Development is basically an upward movement of the entire social
system with socio-economic justice. From this perspective, an opti-
mal situation of making many persons better off without making oth-
ers worse off is a fitting goal, worth to be achieved.>* As the United
Nations Declaration of Right to Development has visualised, the state-
initiated developmental policies shall aim at “the constant improve-
ment of the well-being of the entire population and individuals”
resulting in “fair distribution of benefits there from.”4”7 Development
as a means of expanding freedom and social opportunities has been a
point of focused discussion in the discourse of modern development
economists like Amartya Sen. He viewed, “Development requires the
removal of major sources of unfreedom: poverty as well as tyranny,
poor economic opportunities as well as systematic social depriva-
tion, neglect of public facilities as well as intolerance or over activity
of repressive states.’*5* While development confers capability, poverty
deprives or impedes capability. Instead of mere growth in the income,
enhancement of human capability is the concern of development econ-
omists. Progressive social change is in the very heart of the concept of
development.
6 Called as Pareto principle.

27 Arts. 2 and 3.
28 Amartya Sen, Development as Freedom (Oxford University Press, New Delhi 2000)
at p. 3.
64 Law and Soctal Transformation
E
Fe E
The developed countries evolved the doctrine of “trickle-down
effect”. This meant that the benefits of economic growth would auto-
matically trickle down to all the sections of society. They argued on
the basis of culture-specific theory that government intervention for
reduction of inequalities was unnecessary; that the least developed
countries have to develop on their own in the midst of “hands off”
approach; and that the process of growth would take care of distribu-
tive justice»? This belittles the role of state, and in actual practice, the
thing trickled down to the lowest strata is trivial. This contradicts the
concept of social justice that aims to remove the socio-economic imbal-
ances and create a just society. With human development at the center
of the stage, international bodies emphasise that market should serve
the people instead of people serving markets. The liberal legalism
school, in contrast to culture-specific theorists, has ignored the role of
societal inputs to determine the goals to be achieved and the means
to achieve the goals in the process of development.*” Those inputs
are only relevant to evaluate the result. The middle-level hypothesis,
which stands in between these two approaches, considers law-society
interaction in the context of development as involving the same fea-
tures as those in other spheres.”
Center staging the factor of “receptivity-to-change”, some scholars
like W.M. Evans and Robert P. Meagher have classified the approaches
to development as top-dow:i model and bottom-up model.” In the
first one, law or development policy emanates from the above, i.e.,
from the legislature or judiciary whereas in the second one, customs
and usages constitute law emerging from below. While substantive
receptivity can be assumed in bottom-up model, receptivity in top-
down model varies according to the subject-matter of the law and the
source of law. In the field of business and trade, the rate of receptivity
is higher than in other areas, and between the legislation and court
order, it is the legislation, which gathers more receptivity because of
its prestigious image. The development process involves identifying
the priorities of the society, identifying the change required by collab-
orative efforts of development practitioners (legislators, bureaucrats,
lawyers, social scientists), and locating the subject-matter area where
legal change shall be brought.
*° Robert Meagher and David Silverstein, “Law and Social Change” in Robert
Meagher (Ed.), Law and Social Change: Indo-American Reflections (N.M. Tripathi, Bombay
1988) at pp. 1, 22.
°° Trubek and Marc Galanter; see, Robert Meagher supra, n. 259 at pp. 16-17.
1 Robert Meagher supra, n. 259 at p. 17-19.
fee W.M. Evan, “Law as Instrument of Social Change”, in Gouldner and Miller,
Applied Sociology: Opportunities and Problems (1965) at p. 2891; Robert F. Meagher and
David Siverstein, Law and Social Change (1988) at pp. 22-24.
Law and development 65
ee We ee
e
In fact, “law and development” is a distinct field of scholarship
that witnessed some intellectual inputs in 1960s in the United States.
It starts with a notion that if properly planned and managed, society
would be moving towards a better state of earthly affairs or continu-
ous improvement in social condition. J.-H. Merryman views that law
reforms of lesser type like “tinkering’—occasional improvements to
improve efficiency—and “following”, which involves adjustment of
the system to suit the changed social circumstances bring only mar-
ginal changes. But, ““Leading’ law reform, on the contrary, uses law
to change society.” He refers to the US constitutional development,
post-revolution reforms in France and the 19th century reforms in
England as examples of enormous development through “leading”
law reform. During the early colonial period, the principal objective
of the colonial administration was exploitation whereas in 19th cen-
tury, some focus was laid on colonial development. An advantageous
posture of “leading” reform became a feature of decolorised states in
2oth century. Development discourse is still relevant now as a part of
law-social change topic, although there is decline in its popularity.
India has followed a top down and centralised model of economic
development and dispensation of justice. The decision making is han-
dled by techno-managerial actors and self-centered professionals rather
than by community’s involvement. According to Rajni Kothari this has
resulted in a highly iniquitous social order that has built into its oper-
ating structure a large measure of social oppression, vindictiveness,
brutalisation and humiliation.”** Upendra Baxi finds in development
discourse, the issues relating to planned social change: Development
of what? By whom? In what way? Towards which direction? Within
what time framework? In which space? Whether promotes justice,
good governance and appropriate technology?” Taking clue from UN
Declaration of Right to Development he points out collective responsi-
bilities of community of states to cooperate in removal of obstacles to
development, elimination of violation of human rights, and promotion
of respect for human rights as agenda of development.* Gandhiji's
concept of swaraj sends the message of holistic and comprehensive
development.?”
263 JH, Merryman, “Comparative Law and Social Change” (1977) Am. J. Comp. L.
; i. sy
457 at pp. 483.
in India: Crisis and Opportun ities
264 Rajni Kothari, Democratic Polity and Social Change
sepaid:
(Allied Publishers, Bombay 1976) at pp. 34-35.
Press, New
26 Upendra Baxi, Human Rights in a Posthuman World (Oxford University
Delhi 2007) at pp. 79-92.
2 Ibid, at p. 140.
66 Law and Sotial Transformati on
a es emcee nar cr enc in
The relation of development with environmental protection

has been another matter with which the legal system has concerns.
Indiscriminate manipulations of nature, and ecological misbehaviour
with lack of concern for natural resources have resulted in alarming
environmental degradation. Law’s ability to wrestle with this problem
for a better result has been tested in recent decades. While the status
quoist policy could not help, the activist state intervention, to prevent
and remedy environmental pollution and to conserve natural resources,
was understood as a saviour of mother earth. Better standard of liv-
ing and upgrading the quality of life that the development provides
in its platter are to be unfortunately juxtaposed with the poison of
pollution. Change towards sustainable development, as a balancing
phenomenon is a responsibility that law has shouldered over the years.
G.H. Brundtland Committee defined “Sustainable Development” as:
“Development that meets the needs of the present without compro-
mising the ability of the future generations to meet their own needs.”
Planned social change is at the heart of this approach. There is an
inspiring growth of law in India in this sphere.
1.15.2 Law and economics: law as a social investment
Closely related to the law and development discourse is the discourse

on law and economics, w?.ich is intellectually stimulating and excit-
ing. Scholars consider that human decision making is influenced by
rational cost-benefit analysis in the matter of making and obeying
law. Coase theorised that in the matter of absorption of externalities
or harmful effects, free market exchange policy stands superior over
state regulatory intervention; and that when market costs are low,
these only are relied upon to achieve social ends.” Pareto conceptu-
alised that if every one in the society prefers a certain social state to
another, then the choice of the former must be taken to be better for the
society as a whole.” Amartya Sen argues that paradoxically basic lib-
eral principles conflict with the Pareto principle and adherence to the
latter narrows down the scope of choices.?”? Richard Posner has made
extensive study of various frontiers of law being influenced by eco-
* Ronald Coase, “The Problem of Social Costs” (1960) 3 Journal of Law and
Economics 433 at p. 476; Ronald Coase, The Firm, the Market and the Law (IL Chicago
Press, Chicago 1988); see also, Antonio Nicita and Ernesto Savaglio, “Minimal liberty
and the ‘Coasean Liberal’: Boundaries and Complementarities Between State and
Market” in Fabrizio Cafaggi (Ed.), Legal Orderings and Economic Institutions (Routlege /
London 2007) at p. 118.
*® Antonio Nicita and Ernesto Savaglio, supra, n. 268 at p. 130.
* Amartya Sen, “The Impossibility of Paretian Liberal” (1970) 78 Journal of
Political Economy 152 at p. 157; Amartya Sen, Choice, Welfare and Measurement (Basil
Blackwell, Oxford 1982).
URGMEMRRmaRm
nomics, which is the science of the consequences of human behaviour.
According to him, economic analyses of laws operating upon women,
minorities, political radicals in addition to those upon business com-
munity and citizens at large provide internal perspective of the legal
profession to solve the practical problems of law2’! Looking from these
perspectives, because of the conflicts amidst various interests and val-
ues and the need for balancing them, making of law has also become
a kind of investment.
Fransisco Parisi and Nita Ghei adopt investment approach to law-
making.” According to them, old laws often become ineffective, irrel-
evant and cumbersome in the course of bringing efficient transaction
in new environment. For example, feudal restraint on alienability
of land became a constraint to industrial revolution, and had to be
abandoned to spur economic progress. Law becomes an instrument of
investment for better world. They draw similarity between law-mak-
ing and investment decisions in the matter of uncertainty over future
benefits, costs involved in complying with law or investment require-
ments, and choice of the timing of the legal intervention or investment.
Lawmakers ought to weigh the benefits of waiting for new informa-
tion against the cost of postponing law-making. A new legal inter-
vention in the form of environmental law that requires incurrence of
financial cost can hardly be postponed in view of social costs arising
from global warming. Similarly, postponement of passing a media law
on internet pornography may greatly damage social morality. Thus,
some of the waiting costs are social costs too. Similarly, hurried legal
intervention without full information about all pros and cons and
without foresight of consequences, for example, the Special Economic
Zone law, may be costing the society heavily in the long run. Parisi
and Ghei observe, “Legal innovation should be carried out only when
the expected value of law-making exceeds the law-making costs by
an amount equal to the value of keeping the law-making option alive.
In the presence of uncertainty, this result modifies considerably the
traditional results of the net present value rule, which would suggest
proceeding with legal innovation any time the expected present value
of law-making exceeds the expected costs of law-making.”*? The value
of waiting is to be assessed vis-a-vis cost of waiting. The boundaries
and complementarities between the market and state—freedom of
business, trade and commerce vis-a-vis state’s regulatory regime in
271 Richard Posner, Frontiers of Legal Theory (Universal Law Publishing Co., New
Delhi 2001, 2006) at pp. 2-4; Richard Posner, Economic Analysis of Law (1998).
w: An
22 Fransisco Parisi and Nita Ghei, “Legislate Today or Wait until Tomorro
268 at p. 85.
Investment Approach Law-making” in Fabrizio Cafaggi (Ed.), supra, n.
273 [bid, at p. 88.
68 Law and Social Transform ation
i c
en en ee RE EE
the interest of public—also operate as factors influencing development
and social transformation.
1.16 Democracy and social transformation

Democracy presupposes collective decision making by members
possessing equal rights. Since it relies upon deliberation, persuasion
and compromise, and accommodates diversity and pluralism, the
potentiality for meeting the popular demands is logically immense
in democracy.” Participatory democracy heralds changes by deliber-
ating on social rights, by evolving legal policies for their enforcement
and by minimising the mistakes. The values of modern democracy
like guarantee of human rights, participation in economic and politi-
cal decision making through the concept of government by the peo-
ple, rule of law, and development towards desired state of affairs are
chosen as goals for optimisation in the functioning of political institu-
tions.?” Insofar as India is concerned, a mammoth design for national
integration, for economic development to raise the standards of living
of common man, and for social equality to overcome the past injus-
tices is centrally located in the mechanism of democracy. These theo-
retical inputs have instilled strength to the political society’s effort of
bringing social transformation. Schooled in ideologies and steeled in
action, the creative polity has often times demonstrated the ability to
spearhead the comfortable changes.
Indian experience with representative democracy during the last six
decades has recorded crucial shifts in public policies owing to electoral
verdicts, ongoing emphasis on social reform laws, strengthening of the
process of free and fair election, and expansion of the site of people’s
participation by adding three more layers of representative democracy
to the hitherto existing federal system. Retention of the basic features
of democracy except during the small aberration of internal emer-
gency (1975-76) in a vast nation ridden by serious problems has helped
the cause of planned social change. Judicial insistence on free and fair
election, corruption-free franchise and transparency through compul-
sory declaration of candidates about their assets and antecedents has
been supplemented by the Election Commission, which has grown as
a strong institution.7” Democracy is firmly established in India.
274 See, for discussion, Sir John Laws, Law and Democracy, Public Law (2000)
at Dive.
7° Roberto Gargeralla, “Theories of Democracy, the Judiciary and Social Rights” in
Roberto Gargarella, Pilar Domingo and Theunis Roux, Courts and Social Transform
ation
in New Democracies (Ashgate, Hampshire 2006) at p. 12.
7° W. Friedmann, Legal Theory, at pp. 398-99.
”” People’s Union for Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC 399; Union of
India v. Assn. for Democratic Reforms, (2002) 5 SCC 294; Indira Nehru Gandhi v.
Raj Narain,
Democracy and social transformation
SEER
r A aS e IEE r 69
Indian democracy’s commitment to human rights and welfare, as
ordained in the Constitution, is supported by progressive legislation
and bold judicial pronouncements. Not only the content of each fun-
damental right got expanded through activist judicial interpretation,
but also their subjection to reasonable restrictions assisted the welfare
policies. Newly emerged positive rights became instrumental in real-
ising the objectives of welfare. Rule of law got new colour and con-
tent by superimposition upon the traditional Dicean concept of formal
equality, the new principle of substantive equality and concept of wel-
fare rights laid down in detail in Delhi Declaration. Rule of law was
expected to represent rule of life by promoting substantive principles
such as equitable access to basic necessities of life.?”8 The traditional
notion that rule of law is opposed to conferment of discretion and dis-
allows state interferences that disturb the legitimate expectations has
undergone change to accommodate the demands of modern adminis-
trative state and the imperatives of economic planning. New remedies
like compensation, directions, and injunctions supplemented the proc-
ess of change. Egalitarian ideology has played an influential part in
inspiring and managing social change in whole of this development
as elsewhere.
While rule of law has responded to the vast expansion of governmen-
tal functions, minimum principles of social justice have become part of
the established philosophy in all civilised countries. Expansion of the
role of state as Protector, as Dispenser of social services, as Industrial
Manager, as Economic Controller and as Arbitrator is responded by
rule of law through building up of some cogent and seminal principles
of administrative law. W. Friedmann observes, “The gradual extension
of the idea of equality from the political to the social and economic
field has added the problems of social security and economic planning.
The implementation and harmonisation of these principles has been
and continues to be the main problem of democracy.”””? In India, the
Directive Principles of State Policy have tried to elaborate and stream-
line the revolutionary agenda of equality towards welfare of all.
Modern democracies also face the problem of bringing changes in
the texture and pattern of social morality especially when such change
is inspired by the human rights, values but, opposes traditional mores.
Legal reform of Section 377 of Indian Penal Code involved such prob-
lem. The Indian Penal Code was influenced by the prevailing socio-
cultural values and beliefs and moral ethos as perceived by the British
(1995) 4 SCC 611.

1975 Supp SCC 1: AIR 1975 SC 2299; T.N. Seshan v. Union of India,
28 Delhi Declaration on Rule of Law by International Jurists 1951.
at pp. 419, 429,
279 W. Friedmann, Law in a Changing Society, at p. 375; Legal Theory,
OE
lawmakers.*® Section 377 heavily penalises unnatural offence of vol-
untary carnal intercourse against the order of nature with any man,
woman or animal. Gays and Lesbian activists assailed this as infringing
their sexual autonomy and privacy. Union Health Minister’s Speech in
2008 supported distinction of consensual homosexuality amidst adults
from other acts coming under Section 377 as a measure of treating the
participants for HIV/AIDS. In a Public Interest Litigation filed by Naz
Foundations, the Ministry supported such distinction. The Delhi High
Court, by a judgment dated 22 July 2009, declared Section 377 insofar
as it criminalises consensual sexual acts of adults in private as viola-
tive of Articles 14, 15 and 21.** Holding that homosexuality is not a dis-
order but just another expression of human sexuality, the Court found
Section 377 denying gay person, a right to full personhood and dignity
solely based on his or her sexuality. However, the section is read down
but not quashed. There are mixed reactions to the verdict. It is submit-
ted, the judgment has exhibited one more instance of activist judicial
law-making. Since human rights, values, perspectives of health and
broad consensus were acted upon, the change management is not anti-
democratic.
1.17. Conclusion
The complex question about relationship between law and social
transformation can be analys+d by understanding the purpose of law,
realm of its governance and nature of society. Societal and institutional
effort of building a just social order has poured input for desirable
changes. Society’s features of continuity and its sensitivity to change
have impact upon its normative instruments like law, morality and
culture. The balance between continuity and change is a key process
contributed by joint participation of state and society. Compared to
the models of consensus and conflict, the integrated model of social
change is comprehensive, and avoids the defects of the both. In the
context of cultural diversity, faults of tradition, economic exploitations
and prevalence of vivid socio-economic backwardness, the corrective
and transformative role of equality and justice is both exponential and
multidimensional. Participative democracy and planned development
also add to the measures of integrated model.
*” KI. Vibhute, “Consensual Homosexuality and the Indian Penal Code: Some
Reflections on Interplay of Law and Morality” (2009) 51 JILI 3.
8! Times of India, 3-7-2009.
CHAPTER 2
Se
eee
HISTORICAL AND SOCIOLOGICAL

DISCOURSE ON LAW'S ROLE IN SOCIAL
TRANSFORMATION
2.1 Preliminary remarks

Five millennia of Indian society’s march through a variety of political
and social experiences, with ups and downs in human achievements
in terms of social happiness, economic comforts and cultural gains,
have unfolded prominent lessons about the dynamics of social change,
and the law’s role in it. A body of cultural values that got gradually
crystallised in this process had cast indelible impression upon the
legal system. Undergoing broadly three phases of historical evolution
viz. traditional, colonial and developmental, Indian legal system has
distinct and rich experience about social dimensions of law.
Some broad themes dealt in this Chapter can be briefly highlighted
for a critical inquiry. They include: (/) society’s continuous and collec-
tivist vision about justice and welfare; (ii) emergence of multicultural
society with imperatives of mutual tolerance and influence embed-
ding legal pluralism; (iii) introduction and reception of English Law
in India offering the advantages and challenges of modernisation; (iv)
building a strong pattern of balancing between change and continu-
ity having regard to good and positive elements of culture and neces-
sity of reforms; (v) the legal system’s response to economic and social
exploitation, whether colonial or local; and (vi) sociological analysis of
law’s social basis and functioning.
It is useful to know the modalities of law-society interactions at vari-
ous stages of Indian society’s growth, the background of interactions
and their social impact. Although the present legal system is influenced
72 Historical and sociological discourse
a
On SE e
by the experiences and institutions of the immediate past, the flow of
socio-cultural milieu has been continuous to wield influence upon the
legal development as a whole. The competence and difficulties of the
the pas
in s
ange t” canbe
legal system to herald and follow social ch
known through the survey of socio-legal history. Further, sociological
will clarify about the reasons
perception of law’s basis and working
Fy aeee
for law’s changing approaches and outcomes. A survey of the analy-

ses made by Indian sociologists about patterns and direction of social
change, and the practices of change management is also hoped to give
an insight about law’s place and difficulties in the dynamism of social
change. The present Chapter aims at unravelling this evolution.
2.2 Law and social transformation in ancient India

A focus is laid in this section on the extent of ancient Indian legal
system’s orientation towards social happiness, the goals of justice,
approach towards collective duties and rights and the process through
which the law-society relations got meaningful development. More
particularly, interpretation of shastrik writings and accommodation of
customs and their changing contours should be seen as the workshop
of change.
2.2.1 The legal system's soc’<! dimension

In the early stage of predominantly religion-based culture of ancient
India there was hardly any distinction between religion, morality and
legal obligation. Phe epteen canal Erhe hoton OFRERESOr:
ness (rta) envisaged their natural interactions and mutual assistance.
A wrong was
considered
as sin and penance and penalty were pre-
scribed for
itasremedy in a proportionate manner.* While the mix-
ing of
norms was not avoided, there was refinement in course of time
about legal principles by gathering support from the ethical principles
social stability.‘ It meant principles followed by those learned in the
: Upendra Baxi distinguishes social history of Indian law from legal history, and
considers the former as indispensable for the maturation of concern with sociology of
law in India. See, Upendra Baxi, Toward a Sociology of Law (Satavahana, Delhi 1986) at
p. 20.
* PN. Sen, General Principles of Hindu Law (Allahabad Law Agency, Delhi 1984) at
pp. 342-44.
* J.D.M. Derrett, Religion, Law and the State in India (Faber & Faber, London 1968)
at p. 97; see also, Werner Menski, Hindu Law Beyond Tradition and Modernity (Oxford
University Press, New Delhi 2003) at p. 78.
* PV. Kane, History of Dharmashastra, Vol. II (2nd Edn., Bhandarkar Oriental
Law and social transformation in ancient India 73
ee Cl
Vedas and those approved by the conscience of the virtuous who were
exempt from hatred and inordinate affection. Ifemphasised rule of
law.
Brihahadaranyak
The Upanishad stated, “There is nothing higher
than dharma. Even a weak man hopes to prevail over a very strong
apy es eeEivet dnaouy wisvadhe prevails coset over a wrongdoer
with the help of the King.” |Emerging from social consensus rather
than from superior authority that laid down the law, it involved every
Hindu in a continuous process of harmonising individual expectations
with the concern for the common good.® In brief, it formed a device of
self-controlled ordering, as Menskiputsit. ~ = —==
aw’s growth with thegrowth of community’s culture became clear
along with recognition of fourfold source oflaw:dharma (righteousness),
vyavahara (practice), charitra (usage) and rajasasana (royal edict)—each
ofthe latter to prevail over the earlier ones? But in practice, royal edict
used to reflect reason or equity and outlook of the community rather
than merely transmitting the command of the sovereign head. Dharma
in the sense of unseen justice or divine intervention determined rela-
tive appropriateness of the source of law. Good customs «or sadachara
were elevated to the positionof enforceable charitra.* It should be seen
that the oughtness beneath a custom is not so much an intellectual
artefact but a real compulsive urge derived from the necessity of pre-
serving and developing a community life. Further, the rules of kula, jati,
sreni and puga or social and local groups and conventions (samaya) of
corporate units (samuha) were enforceable against the appropriate bod-
= ——,-. Se i i
ofjustice. He propoun secular concept of sapinda and svatva

(property), w ich could expand the rights of women to a considerable
extent.” Derrett views, “The ingenuity of commentators wastmmense,
andalterations were made in the law without varying the text; and
oe
Research Institute, Poona 1973) at pp. 2-5.

5 Br. Ar. Up. 1-4-14, Vol. XV (Sacred Books of the East) at pp. 14-89.
6 Werner Menski, supra, n. 3 at p. 90.
n. 3
7 Katyayana, at pp. 35-53; Narada, I-35; Brihaspati, I-24; J.D.M. Derrett, supra,
at pp. 149-53.
8 Manu, I-108; II-6; IV-178; Yaj., 1-7.
9 J.D.M. Derrett, supra, n. 3 at p. 157; Manu, VIII-411; Gautama, XI-21-2.
1S, Pawate, Daya-Vibhaga: Or the Individualisation of Communal Property and
Karnataka
Communalisation of Individual Property in Mitakshara Law (2nd Edn.,
ion against Unjust
University, Dharwar 1975) at p. 1; see also, P. Ishwara Bhat, “Protect
dence
Enrichment and Undeserved Misery as the Essence of Property Right Jurispru
in Mitakshara” (2006) 48 JILI.
I 6 a 0
if that was not adequate they did not scruple to alter the text itself."
This points out the mutuality of influence between exponents of law
and society in the evolution of law. Added to this was the contribution
and role of sabha and samiti, which resembled the councit of ministers
ati
assembly
andlegisl modern times, in concretising and effectu-
ofve
ating legal policies to suit the interests of the community. The rigidity
effect of sastras on the rulers wasrespondedby
in bindinged
involv
law abreast
creative role of smritikaras and commentators inkeeping
of social development and in tune with changing conditions ofsociety
and the altered social values. M.C. Setalvad writes, “Thus were con-
stantly introduced changes and reforms in the law so as to adapt itto
the current social conscience and prevalent social philosophy.-These
in the same manner as is frequently done by
much ed
wereintroduc
w the guis
our courts of lain e r interpretation“*——~—~
of aprope
‘time and social space factors. The prevalence of dayabhaga in Bengal,

Marumakkadayam based on matrilineal family system in Malabar,
Mitakshara in major part of India with local variations envisaged such
linkage. Evolution of joint family system from the crude ideas of com-
munity-owned property, recogitionofwoman’s property in different
parts of India in different ways, unique development of law of adop-
tion originally based on deeply held religious belief and later based on
secular motives, widespread notion of pious obligation of Hindu sons,
and gradual choice of Brahma
and Asura forms of marriage amidst
originally recognised eight forms of marriage-each of which had typi-
fied a stage in the culture and development of the society-were the tes-
timony to the creative interaction between culture and law. Intimate
values of family life, the sense of respect towards women, the notion
of runa that debts shall be promptly repaid, the need to have a son to
escape from the hell of “puth” after death and understanding of mar-
riage as samskara or sacrament-each had enormous cultural signifi-
cance and justifications. Thus social basis of law and compulsions to
modify them according to changed social mores whenever inevitable
could be traced in the working of the Hindu legal system.
Social dimension of ancient Hindu Law can also be inferred from
the flexibility of approach of lawgivers in accommodating the social
"' J.D.M. Derrett, supra, n. 3 at p. 165.

MC. Setalvad, Common Law of India.
'’ Robert Lingat, The Classical Law of India (Tr.), J.D.M. Derrett (Oxford University
Press, New Delhi 1998) at p. 11.
EES Ed
changes. As said by Parasara “Dharmas of men vary in the several
yugas in keeping with the character of each age.”"* When the wheel of
age rotates, the spokes alternatively rise and fall resembling the suc-
cesses and failures in human life.»
2.2.2 The social concern for justice

The factor that kept ancient Indian law nearer to considerations of jus-
tice and societal concern is the overriding influence off dharma vupon
economic process and _human_desires. Trivarga principle ordains for
subordinating property considerations and desires or passions ns to
to right-
eous principles.” Further, extending this logic, it has been powerfully
put forward in Ishopanishad and Bhagavadgita that an entitlement to any
good thing comes from performance of duty and sacrifice.” Basing
right in other regarding duty is a fine-prineiple that presupposed peo-
ple’s active participation. It was based on
duties that social structure
was formed and planned. Fo classes iin the society
Formulating different cl:
on the basis. of works.of each person, compulsion towards professional
excellence and social pressure to comply with obligations attached to
stages (ashrama dharma) of life added spiritual and social dimension
to the rights principles.** Recognition.of human dignity on_thebasis
of philosophical ideas of divinity in every human being and conse-
quent principle ofof equality beckoned the whole mankind for attain-
ment of perfection or salvation. The concept of universalism (whole
mankind is each one’s family"; let all people flourish) based on social
duty provided a sound foundation for combination of humanism with
welfarism. In practice, rajadharma (king’s duty) compelled the royal
authority to protect the good, punish the wicked, and assist the neec
In the happinessof his subjects existed the King’ s happiness; in their
welfare, his welfare." It was prescribed in Mahabharata, “The King
4 Parasara, I-3.3. P.N. Sen, General Principles of Hindu Law (Allahabad Law Agency,
Delhi 1986) at p. 14.
'§ Chakravak parivartante sukhanika dukhanica cited in Aruna K. Sen, Status
Education and Problems ofIIndian Women (1989) at p. 13; “the uprise and downfall are
utsarpini and avasarpini.”
16 Manu, II-224; I1V-176; Yaj., I-115; Vatsayana, 1.2.7-15, M. Rama Jois, Legal and
Constitutional History of India, Vol. 1 (N.M. Tripathi, Bombay 1984) at pp. 6-7. Robert
Lingat, supra, n. 13 at p. 9.
” Ishavasya Upanishad, shloka 1; Bhagavadgita “Karmanye vadhikaraste ma phaleshu
kadachana...” II-47.
(Ramakrishna
aS Bhagavan Das, Introduction The Cultural Heritage of India, Vol. IV
Mission, Calcutta 1937, 2001) at p. 14.
'"° Vasudaiva Kutumbakam.
2 Manu, VII-143-4; Sukraniti, I-27-28; Vasishta, IX-20.
as good by
21 Kautilya, at p. 39: whatever pleases the subjects shall be considered
the king.
76 Se and
Historical sociological discourse
ON pe wei hipeben engl PIV SE
should look after the welfare (yogakshema) of the helpless, the aged, the
blind, the cripple, the lunatics, widows, orphans, those suffering from
diseases and calamities, pregnant women by giving them food, lodg-
ing, clothing and medicines according to their needs.’” It is through
performance of positive duties that the King could become maker of
the age instead of allowing the age to make him King.” The corporate
or religious world had also shouldered the responsibility of filling the
gap by contributing through philanthropy and social action.*4
Various facets of justice have been identified in ancient India. That
truth goes hand in hand with justice is reflective of administration of
justice. “Satya is the speaking of truth while dharma is the observance
of truth in action.”*5 Dharma is the way of life which translates into
action the truth as perceived by man of insight and as expressed by
him truly.”° Viveka (reason) is the vehicle of justice as it makes use of
sense of proportion and policy of impartiality.”” Justice also consists in
performance of one’s own duty. As Bhagavadgita says, “Devoted each
to one’s own duty man attains perfection.”*. Theory of karma reflects
another facet of justice. By warning that “a man reaps as he sows” it
motivates to perform good karma, set off the bad one, and bring about
moral regeneration to upgrade status of one’s life.?? Karma, as a con-
cept of collective justice, exhorts for social ethics that binds the whole
community, as Tilak emphasised. Legal justice and justice as coordina-
tor of economic actions and desires for pleasure stress upon economic
justice and social welfare? Bodhisattva commits himself and the fol-
lowers to appease and assuage all the pains and sorrows of all the
living beings; to be a healing drug to the sick; to be allaying the pain
of hunger and thirst by showers of food and drink; to be protector of
the helpless and guide to the wayfarer; and to be a lamp in the dark-
ness." On the whoie, sublime thoughts about justice gave a framework
of purpose to the legal system and to the society.
2 Mahabharata, Shanti parva 24-25, 86.

3 Ibid, at pp. 69-79.
* See infra, at pp. 81-83.
* Satyam vada dharmamchara; regarding law of evidence in ancient India see,
Rama Jois, supra, n. 16 at pp. 411-25.
© V.Raghavan, The Manu Samhitain The Cultural Heritage ofIndia, Vol. 11 (Ramakrishna
Mission, Calcutta 1937, 2001) at pp. 341-45.
” P.N. Sen, supra, n. 14 at pp. 25-27.
8 TI-51.
* Swami Suddhananda, “The Teachings of the Bhagavadgita”, Cultural Heritage of
India, Vol. If (Ramakrishna Mission, Calcutta 1937, 2001) at pp. 159-61.
” BG. Tilak, Gita Rahasya (Tr.), B.S. Sukthankar (2nd Edn.) at p. 664.
*! Vidhushikhara Bhattacharya, “Buddhism in relation to Vedanta” Cultural History
of India, Vol. I (Rainakrishna Misson, Calcutta 1937, 2001) at pp. 559, 573. Also see,
Itivuttaka Sutra, Dhammapada, Ch. 24.
Law and social transformation in ancient India a7
Law’s concern for adherence to varnasrama dharma and gradual
inclination for male preference had resulted in hierarchic relations and
principles in prescription and quantification of penalty and access to
justice. Caste-based_ differentiation in quantification of penalties for
tion inaccess to property, justice delivery and public benefits are man-
ifestations of hierarchic structure in contrast to the detailed rules of
rocedural justice and propositions of substantive justice>? This aber-
ration was challenged by.the Buddhist traditionofequality by focusing
on protection of interests of collectivity of people following different
fields of commerce, and by espousing the cause of non-exploitation”?
2.2.3 The approach ofcollective duties and rights

Since the basic approach of ancient Indian jurisprudence was to orient
towards faithful and selfless performance of duties upon whose foun-
dation human rights and welfare were to be built, the relations of the
groups towards their members and others, and the relations within the
group got sensitised by the concept of duties whereas collective ben-
efit rights relied more on duty performance. Collective duties include
duties of the groups, of their members and of the people as a whole.
The duty concept supplied ethical justifications and rational factors
of efficacy to the legal system. Values of distributive justice, welfare
and equal liberties of all were to be visualised and effectuated with
such an approach. They emerged as social virtue supported by moral
philosophy.
Fraternity in outlook and equality in legal protection constituted the
foundation for collectivity of rights and duties in Vedas and Upanishads.
According to Rigveda, “No one is superior or inferior. All are broth-
ers. All should strive for the interests of all and should progress
collectively.” It also appealed to human persons, “Let there be one-
ness in your resolutions, hearts and minds. Let the strength to live
with mutual cooperation be firm in you all.”3° Atharvaveda propounded
2 P.N. Sen, supra, n. 14 at pp. 345-48.

3 Indra Deva and Shrirama, “Growth of Traditional Legal System: The Perspective
of Change through the Ages” in Indra Deva (Ed.), Sociology of Law (Oxford University
Press, New Delhi 2005) at pp. 324, 331.
4 PB. Gajendragadkar, “The Historical Background and Theoretic Basis of Hindu
rept.) at
Law”, 2, The Cultural Heritage of India (Ramakrishna Mission, Calcutta 2001
p. 425; D.N. Tripathi, “Social Justice and Traditional Indian Thinking” in B.R. Purohit
2003) at p. 84;
and Sandeep Joshi (Ed.), Social Justice in India (Rawat Publications, Jaipur
Poona
PV. Kane, History of Dharmashastra (Bhandarkar Oriental Research Institute,
1973) at p. 97.
% Rigveda, V-60v.
% [bid, X-191v.
78
A EOE LETITIA Ss Sti
sociological
andIt
Historiical EEN ES seRS
BREETdiscour
sound philosophy of collectivism when it said, “All have equal rights

in articles of food and water. The yoke of chariot of life is placed
equally on the shoulders of all. All should live together in harmony
supporting one another like the spokes of a wheel of the chariot con-
necting its rim and the hub.” The concept of vasudaiva kutumbakam*
upholds the essence of this approach. Yajurveda emphasised on love
towards all communities as the method of earning love2? Ishopanishad
looked to collective well being by advocating that sacrifice and selfless
work were the sole entitlement for material things. It also laid down,
“He who looks upon the interests of all other beings vested in his own,
and his own interest as vested in others, does not feel any aversion
to others." Reception of guests and paying attention to them was
one of the propitiations of householders. It is after feeding the guests
and the dependents in and around home that the husband and wife
shall eat.4# The Bhagavadgita maxim that action is one’s duty and that
its fruit is not claimable as of right*# gave a low-key treatment to right
while emphasising the importance of duty. Prompt and appropriate
performance of duty by everybody, no doubt, resulted in better protec-
tion of rights. Gandhiji reiterated this ethos when he preached that the
right we deserve and preserve comes from duty properly performed.
2.2.3.1 Family, the cradle of collectivism

As the basic and most elzmental or natural organisation of human
beings, family
had the opportunity to serve as.a cradle of collectiv-
ism. Joint Hindu family, which prevailed in India as common fea-
ture in the past but presently reduced to two generation familiés in
general, consists of all undivided descendents of a common ancestor
and their female dependents.
They shared common facilities, abodeaT
and kitchen in an atmosphere of love and affection. As the sense of

spirituality wielded influence on all aspects of life in ancient India, it
enriched family life by infusing good morals of collective duty. The
relation between husband and wife was built on mutual duty arising
*” Atharvaveda, Samjnani sukta, cited by M. Rama Jois, 1, Legal and Constitutional

History of India (N.M. Tripathi, Bombay 1984) at p. 583.
* Whole universe is one’s family Subhashita.
° YN. Shukla, XVIII-48. Yajurveda also said, “May our bodies, together with all
their organs of sense and action, brethren be for your benefit; may our wealth be your
service, may our action and our intellectual pursuit conduce to your happiness; may
our studies and our knowledge promote your well-being; and may all that you have
promote our welfare.”
*” Ishopanishad, at verse 1.
41
Ibid, at verse 6.
* Ibid, Vol. III at pp. 116-17.
“Karmanye vadhikaraste ma phaleshu kadachana” Bhagavadgita, I-47.
“ M.K. Gandhi, Harijan, 8-6-1947,
Law and social transformation in ancient India
e e eee rt—“( eC 79
from marriage, which was a sacrament. Sacred law ordained respect
for elders, affection towards younger ones and care of the vulnerable.
On the whole, the legal institution of joint Hindu family has been a
pre-eminent indigenous arrangement for collective life and.an effec-
tive system of social security measure. The fact that each person’s life
is part of the life of another supplied both emotional and rational sup-
port to the corporate existence of family. But the decline in the rights
of women in family property was an unfortunate development that
went against the spirit
ofcollectivism and more reflected the mores of
patriarchy.
2.23.2 Associations: the schools of collectivism

The long tradition of corporate life in India, enriching various spheres
like philanthropy, religion, education, health and professional career,
has unfolded systematic legal principles about the governance of vol-
untary organisations. Laid down in various Smritis and other texts, law
provided for elaborate measures about their democratic structure, pur-
pose compliance, functional and financial accountability and fair bal-
ance between collective interests and individual interests. The urban
associations (naigama), guilds of merchants and craftsmen (shreni and
gana), non-believers in Vedas (pakhandis) the Buddhist or Jaina associa-
tions (sanghas), and arrangements for administration of temples and
shrines were governed by these laws.*
These bodies sive charitable activities, offered vari-
efies of services, and filled the social gap.4° U.N. Ghosal views, “They
(guilds and other bodies) collectively founded pious endowments and
received money on trust from the public with the same object. The
_merchant guilds sometimes voluntarily imposed tolls
upon various
articles of trade for the same purpose.” According to Smritichandrika
compacts were made by the shrenis, naigamas and villagers’ associations
for dividing the burden among the householders, owners of fields, and
4 Katyayana makes this kind of classification. Kat., 678-81. For a general discussion
see, M. Rama Jois, Legal and Constitutional History of India, Vol. 1 (N.M. Tripathi, Bombay
1984) Ch. 10 at pp. 174-86.
4 Historical evidences about the flourish of associations can be seen in Nasik
Inscriptions in Epigraphica India, Vol. VIII at p. 88, Mathura Inscriptions in Epigraphica
India, Vol. XXI at pp. 55, 61, Junnar Buddhist Cave Inscriptions, “Indore Copperplate”
workers
etc. The guilds of weavers, oilmen, potters, watermen, flour makers, bamboo
also
and of merchants are traceable. They acted not only as community bankers but
n of medicine to the sick, constructio n of temples
provided services like distributio
weavers’ guild)
(for example, Sun temple of Dasora was constructed in 437-38 AD by
37 at pp. 185-86. see also, R.C. Majumdar, Corporate Life
etc. See, M. Rama Jois, supra, n.
.
in Ancient India (1918) at pp. 421-28.
corpora te bodies” The Cultural Heritag e of India, (2)
47 UN.Ghosal “Guilds and other
(Ramakrishna Mission, Calcutta 2001 rept.) at pp. 670-76.
discourse
ena oe al ihe
80
5s a at andaesociologic
PRIN Historical ret
individuals for the purpose of averting minor calamities like drought
or alarm from thieves or official oppression as well as of performing a
number of pious acts.® Their corporate life was rigidly bound by the
rule of law norms. As Katyayana stated, “Members of groups (asso-
ciations, corporations and guilds) should strictly adhere to their indi-
vidual duties and should perform all acts required of them according
to the conventional rules of their respective group. They should also
obey Royal Edicts if they are not in conflict with one’s duty.”
R.C. Majumdar writes that the spirit of cooperation was the marked
feature in almost all fields of activity in ancient India5° Guilds of
various kinds of professionals, service providers and traders consti-
tuted the essence of corporate life in economic sector." In the field of
religion, the sanghas or Buddhist corporations inaugurated the era of
religious corporatism. Groups of Buddhist monks used to break their
wanderings during rainy season in viharas, which became permanent
monastic settlements. Owing to native republican practice or due to
lack of nominated successors, some sort of inner democracy, division
of labour and hierarchical administration got developed in course of
time? The maxim of sangham sharanam gachchami (Let me take ref-
uge in the association) reflected voluntary but strong tie of loyalty of
the mendicants to the sangha. Educational institutions established by
the sanghas flourished because of monasteries’ leadership and devo-
tees’ donations. Regarding Nalanda University, R.C. Majumdar writes,
“This great corporation with ten thousand members may justly be
looked upon as one of the best specimens in the field of education, and
one of the most fruitful achievements of the corporate institutions of
the ancient Indian people.”
Political influence of corporate life was only indirect although con-
siderable»+ Romila Thapar records that culturally, guilds made sub-
stantive contribution to art, temple construction and literature; and
that the social control exercised by the guilds upon their respective
members sometimes interfered with the rights of members to marry
outside their groups.5
48 Sm.Ch,, HI-522:
* Kat., at pp. 668-69; see also, Yaj., II-186; Mit., at p. 329.
°° R.C. Majumdar, Corporate life in Ancient India (Surendranath Sen, Calcutta 1918)
at p. 1.
°! See supra, n. 46.
* R.C. Majumdar, supra, n. 50 at p. 287 considers religious corporatism of Buddhists
as one of the most perfect ever witnessed in any age or country.
°° R.C. Majumdar, supra, n. 50 at p. 392.
** Romila Thapar, A History of India (Penguin Books 1966 rept. 1988) at p. 112; King
was expected to give audience to associations on priority basis and honour their views
in administrative matters too. Yaj., Vol. II at p. 189,
* Romila Thapar, A History of India (Penguin Books 1966 rept. 1988) at pp. 110-11;
In the social front, castes, which had originated on the basis of
professional character and activity®* emerged as exclusive groups.
According to Ghurye, “Castes were groups with awell-developed life
of their own, the member whereof,
shiunlike that
p ofvoluntary asso-
ciation
and
s ofclasses, '
was determined not
by selection but by birth.”%7
Each caste became Separate socio-cultural group with its set pattern of
conduct and got hierarchically related to other castes. The authoritar-
ian character of caste coupled with prohibition of inter-caste mobility
gave rise to unequal social relations and denial of liberties}
2.2.3.3 Charitable institutions, the shelters of collectivism

The spiritual growth of human beings contemplated in ancient India
had wholesome impact upon human relationship. Temples and mutts
constituted two important religious institutions of Hindus. According
to Raghunandan, “It is for the benefit of the worshippers that there
is conception of image of Supreme Being which is bodiless, has no
attribute, which consists of pure spirit and has no second.”? Gautama
Dharma Sutra (500 BC) refers to temples and asserts the principle of
impartibility of sacrifices, of prepared food and water for pious uses.
The underlying common theme is that the collective benefit of com-
mon forum for public worship is a laudable work and its upkeep is a
duty upon the king and the people as a whole.” Put into actual practice,
collective duty towards temples resulted in grand style of their func-
tioning as centers of social security, education, health and culture.”
Sri Shankaracharya and others established the tradition of mutts for
imparting religious philosophy® to confer collective spiritual benefits
to the members of their community through imparting of spiritual
knowledge and enabling religious practice.”
she has also viewed that guilds used to ensure fixed quality and price of finished
products; had their own customary laws enforced through guild courts; and that
guilds were supplied in numbers by their association with castes. She also notices the
prevalence of a number of workers’ cooperatives for varieties of work spheres.
%° Bhagavagita, Vol. IV at p. 13.
7 G.S. Ghurye, Caste and Race in India (1932) at p. 2.
8 AR. Desai, Social Background of Indian Nationalism (Oxford University Press,
London 1948) at p. 225.
Cited by B.K. Mukherjea, The Hindu Law of Religious and Charitable Trusts CE.
5th Edn., Eastern Law House, Kolkata 2003) at p. 26.
6 Gautama, Ch. IX, S. 66; Max Muller, 2, Sacred Books of the East, at p. 306.
61 Sukra Niti, Ch. IV v. 9.
1991) at
® Romila Thapar, A History of India, Vol. 1 (Penguin Books, Middlesex 1966,
pp. 189-91, 210-11.
6 B.K. Mukherjea, supra, n. 59 at pp. 23-323.
4 Ibid, at pp. 326-28.
Ee
The theme of superiority of collectivism over individualism has
established its hold in the field of endowments also. Ista and Purtta are
the two types of endowments. While the former included dedication
for the purpose of regular conducting of specific religious ceremonies
of personal character, the latter comprehended dedication of stepwells,
wells, ponds, temples of gods, distribution of food, provision of shel-
ter, hospitals and educational institutions®. According to Manu, “Let
him without tiring always offer sacrifices (ishta) and perform works of
charity (purta) with faith; for offerings and charitable works made with
faith and with lawfully obtained money procure endless rewards. Let
him always practise, according to his ability with a cheerful heart, the
duty of liberality (danadharma) both by sacrifices and charitable works
if he finds a worthy recipient for his gifts.” Yajnavalkya has enumer-
ated various objects of charity, which inter alia included, “The afford-
ing of relief to fatigued guests, the service of sick men, the honouring
of gods and providing asylum to travellers.”
The approach of duty to the collective is reflected in the formality
of dedication made in the course of gift. Dedication (pratista) involved
two important ingredients: intention (sankalpa), and declaration of ded-
ication by words and deed (utsurga). Gifts for hospitals (arogya shala)
and educational institutions (patashala) were regarded as supreme gifts
(atidan).°°
But principles were developed in shastrik writings to avoid hard-
ship of the members of donor’s family because of the gift7?, and to avoid
gift giving to undeserving persons or unworthy cause. During the
period of Buddhist influence, the cause of humanism was advanced
through charity especially to mitigate the misery manifested in old
age, sickness, sorrow, pain and despondence7’? Donations to monaster-
ies became simple as the sangha enjoyed a sort of immortality to ben- -
efit the entire fraternity of the Buddhist monks. King Ashoka, acting
under Buddhist influence, established rest houses and hospitals for the
benefit of men and beasts and appointed officers to superintend chari-
°° B.K. Mukherjea, supra, n. 59 at pp. 12-13, 50-51; Mahabharata, Atri 44; Parashar
grihya sutra, Apararka, at p. 29.
°° Manu, Vol. IV at pp. 226-27.
” Yaj., Vol. I at pp. 209-10.
°° B.K. Mukherjea, supra, n. 59 at pp. 29-30; Mandalik, Hindu Law at p. 336.
69
Hemadri cited in G. Shastri, Hindu Law (8th Edn.) at p. 659; see also, at pp. 656-57
where Nandi Puran is cited to the effect that a man by the gift of the means of freeing
from disease, becomes the giver of everything.
” Ram Kawal Singh v. Ram Kishore Das, ILR (1895) 22 Cal 506; Puran Dai v. Jai Narain,
ILR (1882) 4 All 482; Kamala Devi v. Bachulal Gupta, AIR 1957 SC 434, where gift of
unreasonable quantum of property was nullified.
”' B.K. Mukherjea, supra, n. 59 at pp. 19-20.
83
ty? It is to be noted that people’s voluntary participation and initiative
in acts of piety and charity resulted in building of socio-religious and
cultural institutions. Meticulous thoughts were paid by the lawgivers
to enable communities to rally behind the nucleus of religious or wel-
fare purposes. Dynamism of numerous self-reliant local communities
for strengthening the social structure through other regarding collec-
tive action is an important factor that brought both cohesion within
the community and the flourish of multitude social forums for human
interactions. Adherence to the purpose of the gift and compliance
with the objective of endowment were emphasised as a manifestation
of both collective right and duty?> Religious and moral principles sup-
plied adequate social material, inspiration and enthusiasm for com-
munity development at grass root level.
2.2.4 Interpretation of Sruti and Smriti to accommodate social

transformation
Interpretation of legal norm laid down in Sruti or Smriti constitutes an
important method through which law’s meaning is brought closer to
social reality but still keeping it within the framework of basic prin-
ciple. It is interesting to note that Indian society ceaselessly aspired
to rediscover itself through the new explanations given to the old
rules. As Robert Lingat observes, “Interpretation offers them (com-
mentators) a framework which demands adjustments and correctives
in enunciation, at the same time it allows their gaps to be filled. It is
true that the
interpreter
does
inspired by them and
notwork upon customary data,buthe is
kes for them, if not actually with them, a sys-
tem to which they were invited to adapt themselves.” A new branch
of literary source called mimamsa or commentaries got developed in
ancient India. Adherence to the supremacy of Sruti (Vedas, Upanishads
and Brahmanas) was the basic principle with which interpretation
started75Having liberal principles about women’s rights, and definite
approaches about family’s unity Sruti had interstices to which new
wisdom could be filled7* Smriti, which constituted detailed code of
conduct, was the second layer of legal source, which comprehensively
dealt with the conduct (achara), civilian actions (vyavahara) and pen-
ance (prayaschitta) to provide a coherent system”
” Ibid, at pp. 20-21.

73 B.K. Mukherjea, supra, n. 59 at pp. 120-23.
74 Robert Lingat, supra, n. 13 at p. 172.
7° Ibid, at pp. 153-54.
76 Ibid, at pp. 156-57.
7 Ibid, at pp. 198-01
Some_of the important rules of. mimamsa, which accommodated

social changes, were tule of lok vidvista, Kalivarjya, purva mimamsa,
trivarga, desuetude, harmony and equity and justice. Societal consen-
sus, at least amidst the elite, is the basis for new proposition built on
the structure_of the old.
Gokvidvistajsan act odious to the world, to be excluded.on the basis
of despise y the people. For éxample, Vijnanesvara rejects assigning of
larger share to the eldest brother during partition of ancestral property
(jyestabhaga), which was permitted by Manu and Yajnavalkya, because
such practice according to him is “rejected by the world.” The ration-
ale was, “One should not practise that which is abhorred by the public,
though it be sanctioned by law, since it leads not to heaven.” Silent
change of law in the changed social atmosphere by reference to public
wrath is an interesting feature. Although this change in law through
the process of interpretation shows competence for dynamism, it had
also the problem of divergence of approaches amidst commentators
owing to subjective element involved in popular aversion. Devanna
Bhatta’s approach to recognise jyestabhaga in deserving case as an
exception to Mitakshara rule illustrates such divergence.*
Kalivarjyais aconcept that condemns certain acts as bad and unwork-
able because of popular sentiments against them and difficulty of
their performance in the changing age, despite their practice in earlier
period. The practices of nix7oga (getting son for a sonless woman by
husband's; brother), remarriage of married girl, human sacrifice, horse
sacrifice etc., were regarded as kalivarjya and hence abandoned.” The
digests and commentaries listed the kalivarjyas and stated that they
were practices censured by mutual consent of the sages and the joint
opinion of the good (samaya sadhunam) for protection of the world at
the beginning of Kali Age.® But the concept was not always progres-
sive because widow remarriage, intercaste marriage and sea voyage,
which were permissible earlier, were condemned as kalivarjya.* PV.
Kane considers kalivarjya concept as an effective answer to the criti-
cism of “unchanging East”. He observes, “Social ideas and practices
undergo substantial changes even in the most static society...This fic-
tion of great men meeting together and laying down conventions for
78 Mit. On Yaj., II-117. Robert Lingat, supra, n. 13 at p. 191.
” Mit. On Yaj., I-109; 1-117; 11-18; IV-176.
*° Robert Lingat, supra, n. 13 at pp. 192-93.
*! Ibid, at p. 193.
& Lingat at p. 194 observes, “It is quite probable that revulsion from certain
practices, such as bloody sacrifices, secondary sons, and niyoga is due to a refinement
of the moral sense and a softening of manners, rather than to a progressive worsening
of the Ages.”
*® Ibid, at p. 193, PV. Kane, at pp. 922-30.
“* PV. Kane, at pp. 930-36.
S R SEE OAL ai ret
S eg 85
ed
the Kali age was the method that was hit upon to admit changes in
religious practices and ideas of morality.’”* He describes it as a power-
ful weapon in the hands of those who wanted to introduce reforms
in the incidents of marriage, inheritance etc. In spite of the inconsist-
encies in the application of kalivarjya principle, the concept is highly
innovative and provided scope for peaceful readjustment of social
mores to the changing needs and moods of the time without deviating
from the fundamentals of the Vedas. As commented by Indra Deva the
concept enabled substitution of new values for the old without giving
up reverence to the authority of Vedas.*
Purva mimamsais a rule that distinguishes a vidhi (injunction) from
arthvada (explanatory material) and holds the former mandatorand y
the latter not mandatory. Extending the analogy that when offering of
black beans is prohibited the offering of green beans mixed with black
beans is also prohibited (masa-mudga nyaya), Vijnanesvara rejects the
right of the eldest son to share in the property fraudulently concealed
by him from partition.’
rete acter goholis the supremacy
of dharma (right-
eousness) vis-a-vis artha (the useful) and kama (pleasure). In the
search for truth and theidealof justice, themimamsakras moulded
the law towards this goal to the extent possible. When the Smriti had
prescribed for some conduct, all the acts of utility and pleasure shall
come under it.** But artha and kama, being the fruit of human experi-
ence, were important factors in formulating current morality. All con-
ducts, which are done with visible motive, shall conform to established
rules governing artha and kama, whereas that done without reference
to these shall conform to dharma. Hence, although.“a rule of dharma
has more weight than a rule of artha,”” a rule of artha not
repugnant
to rule of
dharma was fully valid. This line of reasoning also enabled
smooth social changes.
Rule of harmonious construction in case of conflict between the
shastrik texts gave another opportunity to the commentators to adjust
the legal tempo to meet the requirements of justice or aspirations of
time. The conflicting texts in Manu, Yajnavalkya and Narada on the
issue of adverse possession, double contract, bailment and boundary
were treated by Vijnanesvara by a magic touch of equity, by stating
that the loss to the owner will be confined only to fruit of the property
and not the property itself, and thus avoiding the situations of unjust
85 Ibid, at p. 967.
86 Indra Deva and Shrirama, supra, n. 33 at p. 332.
87 Mit. On Yaj., II-127.
88 Robert Lingat, supra, n. 13 at pp. 156-57.
8 Yaj., I-21.
enrichment.” Writing the economic jurisprudence with an ink of equity

has benefited the innocent participants in commerce, and the vulner-
able. Vijnanesvara resolves the inter-text conflict, “In case of conflict
between two Smritis, reasoning (nyaya) guided by the practices of the
past has more force.”*' Thus, mechanism to adjust with social practice
is a creative device to coordinate the wavelength of the two. Regarding
solution to diverse approaches about permissibility of consanguine-
ous marriages, Parasara Madhaviya finds recourse to social practice as
to local customs. Prevalence of different juridical systems in different
areas based on local customs reflects the value of law-society relation-
ship. As Robert Lingat observes, “In India where local populations
have always had the benefits of measures of autonomy, and where a
great variety of tribunals used to coexist, the real diversity of customs
must have involved a diversity of laws.’ Interpretatign expresses
human intellect but needs constant renewal of jurisprudence. To quote
Lingat again, “It obviates the immobility to which a purely imperative
exegesis of the texts would have led. It justifies in time and in space a
variety of solutions to problems, a variety in which India, the one and
the many, recognises her own face.”%4
2.2.5 Interaction between law and custom: implications for social

transformation
Custom emerges from the common conscience of the community and
from people's participation and action. AccordingtoKatyayana custom
or caritra is all that man practices, whether or not it conforms to dharma,
simply because that
is the constant usage of the country. Pointing
Out the essential components of acara or usage, Duncan Derrett writes,
“In order that an acara should be capab
of le
being pleaded in court it
mustbe old, related to a social group or locality (when it may becalled
kula, jati, or desa dharma), followe asdamatter ofobligation, and not
repudiated or abandoned by the party relying upon it.° Customin
accordance with sastra was binding; but custom going against shastra
was not binding unless the sastric authority accepted it. Royal orders
opposed to custom were invalid if such orders were unreasonable. |
*° Robert Lingat, supra, n. 13 at pp. 158-69; P. Ishwara Bhat, “Protection against unjust
enrichment and undeserved misery as the essence of property right jurisprudence
in
Mitakshara” (2006) 48 JILI.
*! Yaj., I-21; P-V. Kane, Vol. III at p. 866; Robert Lingat, at p. 168.
* Parasara Madhaviya, 2, 12-63-8; Robert Lingat, supra, n. 13 at p. 169.
93
Robert Lingat, supra, n. 13 at p. 171.
4 Ibid, at p. 175.
°° J.D.M. Derrett, supra, n. 3 at p. 149.
°° Ibid, at p. 157.
Custom was considered as varying not only according to milieu but
also accordingto period. According to Lingat, “A practice which was
honoured at one moment can, in the next period, fall into desuetude
so that new practices may arise and develop.””” By contrast, Smriti rule
was invariable, especially when there was consensus amidst the smri-
tikaras. The doctrine of consensus was like a dogma in the estima-
tion of Lingat to facilitate flexibility of interpretation in earlier times,
whereas it became valueless in dharmasastra period. Immutability of
a rule was diluted by creation of exception, and as a consequence,
the gaps liberalised the social environment to suit the requirements
of time.®® While the dharmasastras condemned marriage of dvija with
shudra woman, recognition of right of the child born out of such mar-
riage is recognised.” Niyoga, considered as bestial practice, is allowed
to widow whose marriage was not consummated. These developments
took place because the lawgiver was confronted by customs too deeply
rooted for prohibition to be efficacious. But such borrowings from cus-
tom were always selective and based on notions of morality.
The rule of immutability based on consensus was diluted in another
method i.e. kalivarjya. Law’s response to change in accordance with
age (yuga) is developed by the concept of kalivarjya. While the dhar-
mic bull’s each foot is successively lost during each age, thereby reflect-
ing deterioration in physical faculty and moral sense of men in course
of time, the legal system had to keep some norms away as odious to
the world. Lingat notes, “It is not the moral imperatives which vary
according to the Ages, but men’s progressively weakening capacity to
obey the moral law.” For example, the worthiness of charity is intact,
but its practice is regrettably reduced because men do not make gifts
except to remunerate services, which deprive the act of all merit. In
both the ways custom’s influence on law’s growth made significant
impact, by abandoning some old practices and incorporating the new.
This was undeniably a creative function of custom, although it did not
guarantee against abandonment of some progressive and equitable
practices as discussed earlier.
Resolution of conflict between dharma and custom is anotheralsphere
diver-
in which law-society interaction came to the forefront. Region
sity of customs and multitude of customs in various social groups
such as castes, associations, guilds and families had posed the prob-
lem of their enforcement.and. their.conformity with dharma..Manu
said, “Custom is supreme law, as is that which is said in Sruti and
7 Robert Lingat, supra, n. 13 at pp. 180-81.

% Ibid, at p. 182.
” Manu, IX-153-5; Yaj., 11-125.
1 Robert Lingat, supra, n. 13 at p. 194.
88 discourse
Historical and sociologicalREE
a ae NINN AEE ie
Smriti”(IV-8). This could be understood in two senses: that the custom
has the same force of law and secondly that the way of life is supreme
‘source of merit when it conforms to the sacred texts. The second view
is preferred to avoid the conflicts. King was advised to know the vari-
ous customs prevalent amidst various sections of the society, and give
effect to them. According to Brihaspati these customs should be kept
intact lest the public revolt against the state (II-28). Tendency amidst
castes to abide by shatric rules in order to establish their ascendancy
and credibility began to remove orthodox usages from the domain
of custom as less pure. This oral tradition kept pace with progress in
manners and culture with the evolution of opinions. Another method
of bridging the gap between law and custom was by treating aberrant
regional practices as those, which would be incurring neither penance
nor secular punishment.
2.2.6 Dharma and royal ordinance

In a system believed in rule of law, king had the only power of uphold-
ing the dharma and his power of interference was confined to reestab-
lish the rule of dharma. Thus he had no power of substituting his will for
the divine commandment. The king had the responsibility of insisting
on observance of conventions of communities to be in conformity with
shastras.* The South Indian conventions relating to maintenance of
temples, celebration of cult, making of dam, rules of guilds and cor-
porations of tradesmen were confirmed by the king after scrutiny.’
King’s intervention by indirect legislative authority gave elbowroom
for these conventions to remain intact even being opposed to shas-
tras. Far from legislating, the kings tried to enlighten the subjects by
supporting commentators and digest writers. Thus, legal changes
emerged from within the community responding to social demands
or expectations.
2.3 Socio-legal reforms in medieval India

With the entry of India into medieval period, there emerged new
social experience by exposure to the imperatives of multiculturalism,
self-introspection and self-rectification. The face-to-face interaction
between ancient Indian and Islamic jurisprudence had its own con-
tribution in moulding the socio-legal system of India. The efforts for
reforms triggered by self-introspection and exposure to others’ way of
life had their own impact.
! Ibid, at pp. 207, 211.

(2 Ibid, at p. 227.
Socio-legal reforms in medieval India 89
a a a
2.3.1 Social order and law at the dawn of Mohammedan conquest

At the dawn of Mohammedan conquests, Indian society had evolved
a satisfactory and inspiring legal order with an orientation towards
social justice as discussed in the earlier section. But deviating from the
pristine values and theoretic attainments of classical jurisprudence, at
the social level distortions started because of patriarchy, and caste con-
siderations. Untouchability was widely practiced by forward castes,
and even came to be recognised in commentaries.’ Female’s social
position got seriously deteriorated. Slavery was a recognised institu-
tion in the background of growing indebtedness, increase in crimes
and discrimination against tribals. Devadasi system was regular
social practice. Inter caste marriages of anuloma type persisted. By the
custom of kulinism, poor husband of higher caste status earned his liv-
ing through the practice of dowry and polygamy. Female infanticide
had been commenced.’ Good marital relations, acquisition of prop-
erty or influential posts, severance from the former community and
imitation of the superiors were the means of upward social mobility.
Castes, guilds and panchayats used to exercise the power of excom-
munication of the deviants, which had drastic impact upon their civic
and social position. The system of penance and punishment had deep
impact upon the offender and his family.
In the backdrop of this scenario, social movements like Veerasaiva
movement for social and religious reforms introduced social outlook
for radical change. Raising the banner of revolt against ritualism,
superstition, economic exploitation, caste discriminations, and subor-
dination of women, the vachana literature of the intellectual leaders
opened up the avenues for social happiness.’’”” Basavesvara declared,
“Compassion is the root of all religious faith” and insisted on policy of
compassion towards all living beings.’°* His theory of kayaka believed
in earning on the basis of sincere work, dignity of labour, non-accu-
mulation beyond one’s need, and redistribution for the well being of
all. With a need to concentrate more on welfare of people he said:
“The root is mouth of the tree;
Pour water there at the bottom and,
Look, it sprouts green at the top!
Mit. On Yaj., III-

103 J.D.M. Derrett, supra, n. 3 at p. 176; Medhatithi on Manu, X-54;
30.
104 JDM. Derrett, supra, n. 3 at pp. 176-77.
05 Ibid, at p. 177.
. ; ,
%6 bid, at p. 177.
iya Vidya Bhavan,
7 Siddayya Puranik, Human Values in Vachana Literature (Bharat
Gandhi Centre, Bangalore 1997) at pp. 36-55.
108 Ibid, at p. 15.
en a Ysa een men NN SE
The Lord’s mouth is his moving men.
Feed them, the Lord will give you all.”"
The collectivist and pro-human approach for the welfare of all is visible
in this verse. Kayaka produces God's property with a maxim, “N othing
exclusively for oneself; everything for all.” Social values like equal
access to knowledge for temporal and spiritual advancement, commit-
ment to inward and outward purity, truthfulness, non-stealth, non-
violence and tolerance towards all were emphasised by them. Equality
of status and opportunity and gender equality were given philosophic
frame when it was observed that there was only one sect for all those
who knew themselves.*” Although it may be doubtful whether the
Veerashaiva movement brought immediate and longstanding social
change, its philosophy exhibited thoughts and social outlook ahead
of ages, and had its own impact upon social life. Providing continuity
to humanist values of Vedic literature and ethos of social justice, the
movement had aspiration for internal social correction and welfare.
This social process is of cardinal value in influencing the social dimen-
sions of law.
2.3.2 State and social reforms during the later medieval period
Some of the attempts to bring social changes during the medieval
period through the intervention of Muslim rulers and those preached
by the Bhakti saints need to be looked at, in order to know the conti-
nuity of social actions and responses. The present section looks to the
policies of the rulers, and the next one to the Bhakti movement.
The practice of child marriage was a rigid and coercive custom,
and the girls above the age of eight were forbidden to remain in the
parental houses without being married. Emperor Akbar reacted to
this situation and considered that consent of spouses and parents, and
the futures of offsprings were paramount factors that persuaded for
enhancing the marriageable age and strict enforcement of the rule.™
He issued orders that boys were not to marry before the age of 16 and
girls before 14. Kotwal was entrusted with the responsibility of verify-
ing the fulfilment of the requirement. Badauni notes that except creat-
ing another pretext for corruption, the royal order did not create any
Ibid, at pp. 13-14.

"0 Tbid, at p. 52, “There is one earth to hold
God’s temple and the pariah colony;
One water for the closet and the bath;
One sect for those who know themselves.”
'' P.N. Chopra, “Some Experiments in Social Reform in Medieval India” 2 Cultural
Se: of India (2nd Edn., Ramakrishna Mission, Calcutta 1962, rept. 2001) at pp. 627-
8.
Socio-legal reforms in medieval India
ee
i ee si‘91
change.'? Akbar was bold enough to go against the views of ulemas
in pronouncing an order that a man of ordinary meanis shall not pos-
sess more than one wife unless the first proved to be barren. Akbar
deprecated the evil prevalent amidst Muslims to allow young men to
marry old women, and declared such marriages as illegal if the age
difference was more than 12 years’. However, Akbar did not favour
inter-caste marriages, in anticipation of good progeny. He also sup-
ported the practice of purdah system.
Akbar wrestled against the dowry system which was widely preva-
lent with high rate and had bothered even saints like Tukaram and
Vallabhacharya in the context of their daughters’ marriages."+ He dis-
approved the practice of dowry and appointed two sensible men called
as masters of marriages to look into the circumstances of bride and
bridegroom. The practice of bridal price amidst some communities
in the South was prohibited by Deva Raya II of Vijayanagara. Money
transaction on the occasion of marriage was prohibited as illegal and
the bride’s father and bridegroom were to be excommunicated.»
The custom of sati, which had come into vogue during 6th to 8th
century AD was prevalent in the medieval period among large sec-
tions of upper classes of Hindus as voluntary practice. Muhammad-
bin-Tughluq placed restrictions on its practice if conducted against
the will of the widow."® The practice had been continued during
Humayun’s period when officers of Sultan used to oversee sati observ-
ance to ensure that the widow was not burnt against her will. Akbar
did not impose total prohibition on sati, but issued orders to kotwals
that they should not suffer a woman to be burnt against her inclina-
tion. He is said to have personally intervened to save unwilling wid-
ows from the practice of sati. It was a paradox, he viewed, that the
deceased husband attained salvation by the immolation of his wife,
and that it was a sad commentary on the cheapness of woman's life,
which the woman herself estimated. Jahangir and Shah Jahan contin-
ued the same policy with some efforts of dissuading them by offering
monthly subsistence. Permissions were denied to even voluntary sati
if the aspirants had children to rear. Aurangzeb went a step ahead and
prohibited sati altogether.” However, the royal efforts were futile, as
they cast no appreciable effect on the populace.
"2 Tbid.
3. Ibid, at pp. 629-30.
4 Ibid, at p. 630.
—
> Ibid, at p. 630.
=>
'6 Tbid, at p. 632.
—=—_—
=
"7 Tbid.
92
Fa eee
and sociologic
Historical aes eee ee discourse
al ee.
Alla-ud-din Khilji and the Vijayanagara rulers prohibited consump-
tion of intoxicants.’ While later this was rélaxed to allow private dis-
tillation, the subsequent kings were not serious about the enforcement
of the order. Akbar imposed severe punishment for excessive drinking
and dared to punish his own son-in-law for commission of this offence.
Wine shops opened with royal permission used to sell little quantity
of wine for medicinal purpose. Shah Jahan prescribed death penalty
for excessive drinking whereas Aurangzeb strictly prohibited the use
of all types of intoxicating liquors. Regarding gambling also strict
prohibition was imposed. But, as historians note, liquor and gambling
continued unabated. Requirement of licensing was introduced for the
practice of public prostitution in addition to segregation of it to partic-
ular locality in the city." The practice of making and selling eunuchs
was severely punished.
Thus, state’s concern for high morals of the people and insistence
upon human behaviour through formal application of state power to
comply with those standards were of great significance for desirable
social changes. The practical experience about the methods and limi-
tations in this sphere is highly valuable. The carrot and stick policy,
personal persuasion and counselling in individual situations fol-
lowed by many of the above rulers are worthy of emulation in suitable
circumstances.
2.3.3 Social reformers of medieval period

The great personalities of Bhakti movement in the medieval period,
Ramanuja, Madhva, Ramananda, Kabir, Nanak, Tukaram, Chaitanya
and others, tried to bring moral reawakening and consolidation of egal-
itarian values. Attack on blind belief, fanaticism, caste distinctions and
gender discriminations marked the distinct feature of the movement
in this period. The revolutionary ideologues preached the lessons of
social reconstruction on the foundations of humanism, equality, hard
work and tolerance. Religious tolerance emerged as a prominent value
as an antidote to religious fanaticism. On Kabir and Nanak, Romila
Thapar writes, “Their stress was on a reordering of society on egalitar-
ian lines and not the mere coexistence of differing ideologies. The call
to social equality was a powerful magnet, and expressed in the firm
denunciation of caste by both Kabir and Nanak.”?° Both condemned
the practice of sati vociferously. Nanak’s question “Why call her bad
from whom are born kings?”?" reflects the strong spirit of feminism.
8 Ibid, at p. 633.
'? Ibid, at p. 635.
Romila Thapar, A History of India, Vol. I at pi 3il.
1 P.N. Chopra at p. 638. See also, the folklore question in Kannada poem “Why
O
Socio-legal reforms in medieval India
e 93
ee rt
M.G. Ranade sums up the effect of the movement as including “the
development of the vernacular literature, the modification of caste
exclusiveness, the sanctification of family life, the elevation of the sta-
tus of women, the spread of humaneness and toleration, partial recon-
ciliation with Islam, the subordination of rites and rituals, pilgrimages
and fasts...and the uplift of the nation to a higher level of capacity both
of thought and action."
The Muslim rule had powerful impact upon the society but had
touched only the fringes of ancient Indian culture’s structure. The
bulk of Hindu Law as applicable to the natives was left untouched.
Village panchayat as a forum for community’s action and grievance
redressal was active. Introduction of Muslim Law and customs at the
headquarters had initiated distinct principles and procedures. The
system allowed for change, but it did not impose it; it allowed the old
to remain with the new.’? Existence of different jurisdictions did not
present superior-inferior relations of a hierarchy but witnessed coexist-
ence and filtering down and filtering of ideas and techniques.'** Some
of the defects in the new legal procedures were causes of concern.’
But interaction of two civilisations released synergies of new efforts of
synthesis, rectifications and refinements.
2.3.4 Administration of personal law

The period witnessed parallel existence and application of Hindu Law
and Mohammedan Law amidst respective communities. Although
untrammelled growth of Hindu Law did not take place, its continu-
ity was not interfered with by the Muslim rulers, as viewed by U.C.
Sarkar. Ignorance of the native Law and practice on the part of rulers,
their strategy of successful subjugation by respecting the local law, and
lack of time made the rulers not to interfere with the indigenous law.
Conversion of Hindus to Islam resulted in admixture of the two sys-
tems of law for those converted communities like Khojas and Cutchi
Memons, who were permitted to retain their customs.” Mutual influ-
ence between Hindu Law and Mohammedan Law occurred in certain
matters with a policy of give and take. The law of pre-emption, which
you, the blind ones, condemn the givers of fortune, women?”

12 MV. Krishna Rao, infra, n. 155 at pp. 180-01, 201-03. ie}
3 Marc Galanter, Law and Society in Modern India (Oxford Univers ity Press, Delhi
1989) at p. 16.
24 Ibid, at p. 16. ;
Histor y of India, Vol. Il (N.M. Tripathi,
1 WL Racha Jois, Legal and Constitutional
tee
Bombay 1985) at p . 12-16.
esvrananda Vedic Institution,
Bi UC. Sey pik in Hindu Legal History (Visv
Hoshiarpur) at p. 200.
127 Ibid, at pp. 207-08.
es ———
reference
was not prominently recognised in Hindu Law (except stray
to its gen-
in Arthasastra), was adopted by Hindus in wider scale owing
ion of
eral practice amidst Muslims. Originally, there was no recognit
ice of
testamentary disposition of property amidst Hindus. The pract
cer-
will in Mohammedan Law cast its influence upon Hindu Law to
tain extent. On the other hand, the Hindu practice of accepting inter est
was received by the Muslims.”* The interchange of customs and prac-
tices suggests about gradual social changes and emergence of harmo-
nious society.
2.4 Law and social transformation in modern India
The emergence of British rule in India had_fay-reaching effect ypo

law, culture and society with both negative and positive consequences.
Colonialism meant subordination through ¢ower, and annihilation of
ee te ag enone aaa
te
svindicd and bleached thepeople's life and sapped their strength.
There was also positive feature of society's collective effort of resil-
ience and reawakening towards socio-cultural reforms. Legal system
as a sub-system of the society both initiated and respondé d
0 social
changes. namic instrument it exnibi Simultaneously tre-
mendous potentiality and serious limitation for social reforms attrib-
utable to colonial rule in a traditional society, as will be discussed in
this section.
2.4.1 Colonial law and economic exploitation

Marxian depiction of law as instrument of economic oppressor could
have no better demonstration than s passed by the British Parliament
in 1700 and 1720 at the instance of manufacturers in England, which
prohibited wearing and using of cotton and silk goods imported from
India.’? Because of the hostilities with other European countries,
India’s trade with them was also restrained. In 1780, the Company pro-
hibited importation of printed cotton goods from Bengal. Steep fall
in the import of textile goods due to artificial restrictions got further
deteriorated because of new manufacturing methods introduced in
England followed by ban on importing of new machinery to India. To
make importation of raw materials from India cheap, and export of
finished goods from England profitable, the tariff policy was again
manipulated through law. The average value of cotton goods exported
from England shot up from 1.2 million £ to 18.4 million £ within 20
8 Ibid, at p. 208.
' R.C. Majumdar, The Advanced History of India (4th Edn., Macmillan, New Delhi
1978) at p. 802.
Law
a
t and social transformation in modern India
C 95
years from 1790.%° There was a big change for India from a flourish-
ing pre-industrial economy with old industries of shipbuilding, metal
works, handlooms, glass and crafts to an agricultural colonial append-
age to industrialised England. This threw Indian handloom and home
industry, which had supported the people for their livelihood for gen-
erations, into the verge of closure. The misery was unparalleled in
the history of commerce, and as Lord Bentinck reported in 1834, “The
bones of the cotton weavers are bleaching tne plains of India.”
Compelled to go back to land, the artisans and craftsmen had to
face the problem of small land holding, poverty and indebtedness.
The intermediary system introduced through permanent settlement
during the period of Lord Cornwallis had brought a radical change
in the countryside adversely affecting the actual cultivator. In a pre-
dominantly agrarian economy, where self sufficiency and mutual
cooperation were prevailing, the newly introduced system created a
class of predatory rich, fattening on the income from the hard work of |
hapless millions, whose position worsened as time passed. The exor-
bitant assessment was realised by the intermediaries through exceed-
ingly harsh methods. In 1824-28, Pringle fixed 55 per cent of the total
produce as the Government demand. While the revenue got doubled
from £ 868,000 to £ 1,535,000, abandonment of farms and wide scale
pauperism were the results.”* Regarding the consequence of Ryotwari
Settlement in Madras Presidency in 1820s, Romesh Dutt viewed as a
scene of oppression and agricultural distress unparalleled in that age.
Torture, loss of property, desolation and maladministration were expe-
rienced in various parts of India. Revenue system became a monstrous
engine of intolerable oppression.4 Absentee landlordism, rack-renting
and serfdom were witnessed in consequence of the system. Added
to this was the malady of frequently visiting famines with calamitous
effect. As Tara Chand comments, the root of the trouble with famine
was the unavailability of food to the poorer classes, because of their
poverty and the rise of prices, especially during times when crops
failed locally and employment was dislocated.” Starvation, disease,
unemployment and indebtedness were common features of the rural
19 Ibid, at p. 803. fie

131 Jawaharlal Nehru, Discovery of India (JNM Fund and Oxford University Press,
1989) at p. 299. 4 Sat
132 Tara Chand, History of the Freedom Movement in India, Vol. 11 (Publicatio ns Division,
Government of India, New Delhi 1974) at p. 57. ie 2
13 Romesh Dutt, The Economic History of India in the Victorian Age (Kegan Paul,
London 1906) at p. 68. }
at p. 60.
134 Mr Blackett in Hanasrd’s Parliamentar:; Debates, cited by Tara Chand,
1385 \{. Nanavati and JE Anjaria, The Indian Rural Problem, at p. 42.
136 Tara Chand, supra, n. 132 at p. 302.
eg
masses resulting in transfer of land from traditional cultivators to the
new propertied class.
During the post-Mutiny era to allay the difficulties of the ryots
some Acts were passed. The Deccan Agriculturists Relief Act of 1879
empowered the courts to examine the history and nature of debts and
refuse to allow unreasonable rates of interest, to protect the debtor
from arrest and from sale of land unless it was definitely pledged. The
Punjab Land Alienation Act of 1901 forbade the sale of land of agricul-
turists in execution of moneylender’s decree or to transfer possession
for more than 20 years. In other provinces like Bundelkhand, North-
Western and Central provinces also similar legislation were passed.
These measures had inherent loopholes, which the moneylenders used
to their advantage defeating the purpose of law. In order to protect the
tenants against vexatious enhancement of rent and arbitrary ejection,
and to ensure fair compensation to lessees for improvement effected,
the Bengal Rent Act was passed in 1859. This was followed in other
provinces like Oudh, Central Province and North-Western Province.
Some administrative efforts were also adopted to extend irrigation,
provide aids and loans and reform the market system. According to
Tarachand, “...the nature and scale of governmental effort was inad-
equate to produce any significant change in the condition of the great
mass of population, who remained submerged in debt, want and
penury.’27
Even the little comfort that could be had by more exports was neu-
tralised by the economic drain arising from the compulsion on India
to pay annual tribute to England in connection with payment of inter-
est, annuity and establishment expenses which included war expenses.
Ramsay MacDonald considered such withdrawal from the production
stream was means of impoverishment.”* In addition, there was the
crushing effect of the heavy direct tax which was amounting to 15 per
cent of the meagre income of India whereas an Englishman parted
with 8 per cent of his higher income. Further, the burden of public debt,
which had been incurred for meeting war and other expenses of the
British, had risen from Rs 95 crores in 1860 to Rs 312 crores in 1901. The
adoption of Gold Exchange Standard had also adverse effect on Indian
economy. Dadabhai Naoroji wrote, “The English rulers stand sentinel
at the front door of India, challenging the whole world, that they do
and shall protect India against all comers and themselves carry away
by the backdoor the very treasure they stand sentinel to protect.”
' Tara Chand, supra, n. 132 at p. 301.

8 Ibid, at p. 318.
Speeches and Writings of Dadabhai Naoroji, cited by Tara Chand, at p. 338.
Law and social transformation in modern India We
2.4.2 Application of the Indian law by the British
From the days of Warren Hastings recognition and application of
personal law became the policy of the government as an outcome
of respect for community’s culture and tradition, and a pragmatic
method of avoiding possible conflict arising from imposition or trans-
plantation ofalien law. Inatradition bound society, which had not
exposedvitself fully to the modern individualist values, continuation
of the long-followed principles would not disturb the people’s @xpéct
pecta-
tions,itwas thought. Article 23 of the Plan of udicia] Administration
1772'* provided that in AS eparcing inheritance, marriage, caste,
and other religious usages an mnstitutione fhe awe oftheCastes:
to Ne Hindus and thelawsoftheKoran,15 theMohanimatte shall
se : il penal Pian6 —-
be ied.“Fhis approa chde as it closely ings to the
is bit fetrogra
past, and is not open-minded to respond to changes. Further, it nar-
rowed down the scope of indigenous law, which had dealt with vari-
ous dimensions of civil and criminal law, to family law. Fossilisation
of law and obstruction to live according to the system by which people
wanted to live were the obvious results of this approach. J.D.M. Derrett
declines to blame Hastings and remarks, “Other choices could hardly
have been made, in view of the ignorance of the population, the appar-
ent absence of effective means of ascertaining custom, and the grave
danger that the entire administration would collapse under multiple
sources of corruption.”"4" Mare Gavantey regards inecevelepmen' as
expropriation of law by the government, which initiated the process of
i ementof traditional law in modern India, in aceof natural
growth of indigenous law." The Antroduction ofjustice, equity and
good conscience” as residuary source oflaw had also enabled back-
doorentry ofEnglish Law. tter or worse, took
Rant
nsformation of indigenous law, whether f
place through several means. First, the search for indigenous law in —
authoritative textual material had its own impact. The British patron-
age to write digests and translations of sastra was a logical conse-
quence of the Hastings’ Plan. The translations by Halhed, Colebrooke,
Jone, A.C. Burnell and P.M. Wynch and new digests by Jagannatha,
Raghunandana, Balambhatta, Citrapati, Sridhara, Parameswara lyer
and VV. Parabrahma Sastri added to the understanding of Hindu
149 Subsequently in 1780 it was made Administration of Justice Regulation, 1780,

and the listed subjects additionally included succession also. It was also provided
that in all cases not covered by the Plan of 1772 the Court should decide the cause
according to justice, equity and good conscience.
at p. 316.
i41 J.D.M. Derrett, Religion, Law & State in India (Faber & Faber, London)
New
12 Marc Galanter, Law & Society in Modern India (Oxford University Press,
Delhi 1989) at p. 17.
parts of
sastra.? Prevalence of different schools of law in different
accommo-
India and flexibility in interpretation by digest writers had
cial
dated spaces for informal change. Deduction of law in a most artifi
and remote manner deviating from the original intention in the text
took place, according to Derrett."* As Galanter observes, the British
assumptions and expectations about Hindu Law had their own impact
on law’s growth."
Second, custom. as_an important source of law_ AN ackseat
strict standard
theBritishtours insistence on
pecgiee of of proof
about locaLcustoms. Sometimes, the character OfCustoms was’changed
ge ane eer Growth of law through naive local practice
got obstructed. Galanter points out, “One of the remarkable and unan-
ticipated results of the British administration of Hindu Law was the
elevation of the textual law over lesser bodies of customary law.”
Third, court’s consultation with pundits and maulvis was not always
helpfulin identifying theeee true Partisan, on-pragmalc
law. arvague
- wks Wows ot . ae
Suggestions.made by-tmiem copishifed tadisOrtion of law. Possibility
of their role as conduit pipe for law’s growth'through Society's partici-
pation was formally lost with the abolition of posts of law officers in
1865. Derrett comments that “the Dharmasastra, as a living and respon-
sible science died when the courts assumed full judicial knowledge of
Hindu Law in 1865."4° By narrowing down selection of authoritative
texts for determination of cases, the earlier technique of refinements
through successive comme.itaries was also given up. With its innova-
tive technique stripped away, and with undue emphasis on certainty
and consistency, sastric law, like customary law became more rigid
and archaic.'#”
Se
a a
ee in eee
the course
aes lapply Hindu
of applying this residuary source.
hei impact of f thé-fesiidwary sourcé
The sou was such that
that th
the sastra téxts have
lose eit autioxity © us was infused into the“intersfices of sastras,
thetinamalgamated masses of foreign law, unevenly and uncritically.
Fifth, reluctance of courts to depart from the established lines of deci-
sions under the influence of stare decisis had also obstructed innova-
tive judgments. It was no doubt viewed by Innes, J. in M. Vaduganadha
“3 Ibid, Ch. 8.
“4 Ibid, at p. 298.
4 Ibid, at p. 21.
"e J.D.M. Derrett, “Sanskrit legal treatise compiled at the instance of the British”
cited by Marc Galanter, at p. 24.
‘7 Marc Galanter, at p. 25.
‘8 J.D.M. Derrett, supra, n. 141 at p32.
Law and social transformation in modern India 28)
Tevar v. Dora Singha Tevar'?, “The Hindu Law on the subject which the
Court should endeavour to ascertain is the existing living law which is
to be sought not merely in ancient treatises and commentaries, but in
the consciousness of the people and practice of everyday life.” But soon
the judge qualified the task of noticing the alterations in law by looking
to the judicial precedents, which were based on consultation of text-
books and commentaries. Uncritical antiquarianism without adequate
historical research had the dangers of distorting law as demonstrated
in Venkatachalapati v. Subbarayadu’®. In this case District Court had
given an innovative judgment remedying exclusion of plaintiff from
the shrine of a temple because of excommunication imposed upon him
for marrying a widow. The Court awarded compensation and issued
injunction against future exclusions. The Court reasoned on the basis
of permissibility of widow remarriage as allowed under sastras, and
accordingly invalidated the custom. The High Court did not accept
this position by holding that the task of the judiciary was not to reform
the law but was only to declare the Hindu Law as received and prac-
ticed by the Hindu community. The High Court was more carried
away by the decisional law rather than by basic principles or spirit of
Hindu sastras. Derrett comments, “The textbooks, which might have
been expected to fundamental help here, trimmed their treatment to
accommodate the case law, and lawyers trained in the subject were
content to dabble in as much of the Sanskrit learning as related directly
to the law administered in the courts.”
Similarly, without noting the essence of Koranic Law on wakf but,
applying the English Law of Trusts, the Privy Council in A.F. Mahomed
Ishak v. R. Dhur Chowdhri', declined to recognise the power of enacting
wakf in favour of family members. The agitation against this decision
resulted in enactment of Muslim Wakf Validation Act, 1913 to recognise
benefit to family members as one of the objectives of wakf. Judiciary’s
refusal’ to give retrospective effect to the Act of 1913 resulted in
another Validation Act in 1930.
Spontaneous and uNique growth-oflaw-1

‘In social oullosk, which-was the feature of the Indian legal system,
| for cer-
had“been rendered dormant by the death-sickening crave
ideas of
tainty. On the other hand, the new system circulat ed powerful
“Ww TLR (1881) 3 Mad 290 (PC).
-_
_
0 TLR (1889) 13 Mad 293.
151 Derrett, supra, n. 141 at p. 303.
uw
2 TLR (1894) 22 Cal 619 (PC).
107.
—_-
=
3 Khajeh Suleman v. Salimullah, AIR 1922 PC
Re
individualism. Further, there were legislative responses to pacify the
aa aN Ec
agitating communities.
2.4.3 Social reforms, law and the women’s question

It is the intellectual reawakening spearheaded by Indian socio-reli-
gious reformers and eminent thinkers of the 19th century, supported
by imaginative and humanist administrators, that brought into inter-
play, law, culture and social change. Abolition of sati, emancipation
from slavery, legalisation of widow remarriage, and prohibition of
female infanticide were the welcome responses to the practices revolt-
ing to the feelings of human nature followed for a long time and in
a wide area. In the enforcement of these socio-legal reforms, unique
experience was garnered by the society by resorting to systematic
and planned enforcement of the norms at the local level, especially
by using the village administration and hierarchy of district revenue
and police authorities. Law-society interaction in this sphere has some
most positive and creative lessons to teach.
Since religion had far reaching importance upon Indian society per-
meating into various spheres of individual and social life, planning
of religious reforms as forerunner or continuous supporter of social
reforms was contemplated by the Indian intelligentsia of the nine-
teenth century. It was thought that religious reform would improve
the mind and lay axe at the root of corruption in the individual char-
acter or in the institutions of society. Keshab Chandra Sen said, “Social
reformation must, therefore, be preceded by and based upon religious
reformation...Reformation is forming anew. Every reformer should,
therefore-notonbidestgy absurdandcorrupt atTaton pat
build
up Pee es ee ed usefulness arid purity.”5+ The
new scientific outlook cultivated through western education ques-
i aleOs Ca naiicme A
tioned the propri ofety

dogmas and superstitious practices. It set free
a multitude of secular interests that brought into culture a spirit of
individualism and love for liberty and harmony.’ Self-interrogation
in response to Western cultural challenges got expressed in thoughts
of either reform or revival.
While blind revival of old institutions and customs was a retrograde
step and anachronistic as the usages-undérgo chai
unsuitable to subsequent generations and times, fevivalism as a sense
of reverence to the past was the foundation for social reconstruction
'" Excerpted in Amiya P. Sen, Social and Religious Reform (Oxford University Press,
'® MY. Krishna Rao, The Growth of Indian Liberalism in the Nineteenth Century (H.
Venkataramaiah & Sons, Mysore 1951) at p. 43; A.R. Desai, Social Background of
Indian
Nationalism (Oxford University Press, Bombay 1948) at p. 258.
;
Law and social transformation in modern India
101
and a continuous process of readjustment of the old to new by evolu-
tion. Reform had the greatest goal of liberating from constraint, big-
otry and authority was and, flowering through changes within the |
people and not so much change of extraneous circumstances.° As
M.G. Ranade stated, “The end of social reform was to renovate, to
purify and also to perfect the whole man by liberating his intellect,
by elevating his standard of duty and by perfecting all his powers.
Renovated, purified and perfected individuals alone will help India to
take her proper place among the nations of the world./57 Progress of
the society through new beliefs and through reconstruction of social
institution was the main objective of the intelligentsia.5* “A complete
break with the past and revolt against ideational and institutional
survival, though attractive, was unaccto
eae
eptab
the masses,le
as that
ae een eship inthe uncharted sea, without a compass
and asénse of destiny and anch writes
orag MV. Krishna
e,” Rao, Many
Refo aimed to
rmers accomplish sdcial reform by education and change
aeheSetwithout
oP nt artificially forcing Thepace7 of reform and“tobring
ay :
social changes through social movements, whereas some.section of
Reformers favoured legislation of prohibitive sort to suppress the evil
tendenciesby threats of punishment.
The debate on strategy towards social reform, which involved the
issue whether political reform and independence should precede erad-
ication of social evils or vice versa, had ultimately revolved around
the question of authorship of change. Whether the cultural commu-
nity or cultural society only had the legitimacy to rectify the faults
or whether government as an agency of collective power had the enti-
tlement to impose reforms was the key issue. Lajpat Rai viewed that
religious reforms like the one launched by Arya Samaj had the social
mission of strengthening the true culture.®® Referring to the daunt-
less efforts of Social Conferences and Associations, which prepared
the community as a whole by passing periodical resolutions and by
bringing the avenue of discussion to tea parties and picnics, Bishan
Narayan Dar points out emergence of new conditions of life that made
social change indispensable and an experience of personal happiness
186 MV. Krishna Rao, “The whole aim of social reform was to rediscover the
individual, to make the original springs of life, work and give the nation a new
vitality” at p. 203.
187 M.G. Ranade, Revival or Reform, at p. 18.
158 MV. Krishna Rao op. cit., “Progress in the social or religious sphere, meant a
catharsis of belief by fact, and new beliefs were step forward, for they worked better
in terms of social welfare” at p. 141.
1599 Excerpted in Amiya P. Sen, supra, n. 154 at p. 76. Contrary stand was taken
by Krishna Mohan Banerji when he said that the evil bequest should be eschewed
that
by breaking from the past, and that only after the domestic and social reforms
expectation to rise as a nation would be appropriate at p. 78.
102
A eh Historic ihsociolog
iDal and i ev RC e
icalUNdiscours
for great number of people.” Culture was regarded as social resource

for change by attracting a fresh look for change from within. As N.G.
Chandavarkar observed, “The past is too strong in the present, and it
has tremendous energy to take care of itself; what is wanted is force
to mould it and that can come from ‘reform within’.” This required an
active and enlightened leadership and consistent effort for regenera-
tion. M.G. Ranade regarded social change not as an innovation, but
a return to the pure past."* Arguing that political slavery could not be
tolerated as a price for emancipation from social slavery, K.T. Telang
preferred to spend greater share of community's energy towards polit-
ical reform and independence as the latter would bring greater capac-
ity for social advancement.*® The demand for political liberty first and
social reforms through indigenous decision making as a logical fall
out of the same, continued with great force in the voice of Tilak and
Gandhiji. Social reform as a destruction of all that was old by project-
ing mental dependence upon England was bound to destroy both good
and defective of the old society, Aurobindo Ghosh reasoned. He said,
“Society is not an artificial manufacture to be moulded and remod-
elled at will, but a growth. If it is to be healthy and strong it must have
healthy surroundings and a free atmosphere.”"4
The waves of Indian renaissance had a tremendous and longstand-
ing impact influencing Indian life in subsequent centuries. The social
ideas of the British had also constituted important element in the right
of interference in the affairs of society. As Hindu religion had not
clearly authorised the barbarities of female infanticide and sati, there
were bold attempts of legal treatment of child sacrifice as murder, and
stern action against sati practitioners in course of time.
2.4.3.1 Female infanticide

The practice of female infanticide reflected worst form of prejudice
against women and posed big challenge to the colonial legal system.
It was a practice followed amidst some castes and tribes in the North
West, in Oudh, Punjab and Benares owing to the difficulties such as
that of giving daughters in marriage within the same clan™® and due to
religious vows for getting male child or some mundane benefit. Bengal
Regulation Act 11 of 1795 and the Regulations Acts 3 and 4 of 1802 and
1804 treated infanticide as murder and imposed punishment. In the
‘©? Amiya P. Sen, supra, n. 154 at pp. 87-88.
1 Tbid, at p. 93.
' Ibid, at p. 111.
‘3 Ibid, at pp. 94-97.
'*4 Ibid, at p. 98.
See, Janaki Nair, Women and Law in Colonial India (NLSIU, Bangalore 1996 & 2000)
at pp. 84-85.
Law and social transformation
e e in modern India 103
beginning, gentle persuasion through moral preaching and personal
influence was attempted. When it did not bear consistent fruit, stern
measure through criminalisation of the act was chosen as a policy. The
coercive legal measure was comprehensive as it threw burden upon
village servants such as peons, watchmen, midwives and accountants
to keep surveillance, to inform the authorities and prevent the occur-
rence. Population data of girl children were collected to identify the
prevalence of female infanticide. Census statistics of 1841 disclosed
the seriousness of discrepancy in Kutch (335 girls: 2625 boys) and
Kathiawad (1370 girls: 5760 boys).
Measures restricting the marriage expenses including payment to
priests and village heads, and sumptuary and educative measures
were adopted to deal with the problem. Realising the success of holis-
tic approach, John Strachey’s Bill, which became law in 1870 (Special
Act), streamlined the detailed apparatuses for the law’s implementa-
tion: periodic census, monitoring of pregnant women by the village
authorities, prompt registration of births, inquests if the child died
within a week and stringent punishments for disobedience to the
law. A highly effective administrative measure was identification of
guilty and most “guilty” communities and clans. The clans which had
a proportion of girls less than 40 per cent of the total in the age group
under 12 were declared “guilty”, and those with less than 20 per cent
were “very guilty”. About 5000 villages in 25 districts were identi-
fied in 1872 in these categories, and steps were taken to improve the
situation. Lalita Panigrahi records that between 1875 and 1881 alone
the percentage of girl children rose from 30.2 to 38.6 per cent." The
number of villages, which were proclaimed “guilty”, got reduced to
1905 in 1883 and to 1381 in 1888. The successful implementation of law
towards stamping out the worst social crime gave rise to a decision
for withdrawing the Special Act in 1906 except placing certain pockets
under scrutiny. The wholesome consequence of integrated approach to
the problem and effective implementation of the Act call for emulating
in suitable instances the method of change management, which is ori-
ented by a grass root outlook. Janaki Nair writes, “Compared with the
relatively long gestation periods of most social legislation, and their
indifferent implementation, there was an extraordinarily brisk quality
to the British initiative against female infanticide..."
in India (Munshiram
16 Lalita Panigrahi, British Social Policy and female Infanticide
Pakrasi, Female infanticide in India
Manoharlal, New Delhi 1972) at p. 41; see also, Kanti
(Indian Edition, Calcutta 1970) at p. 233.
, Bangalore 1996 & 2000) at
167 Janaki Nair, Women and Law in Colonial India (NLSIU
p. 84.
104 Historical and sociologica l discourse
cae a oe NSS - ER OR
2.4.3.2 Abolition of sati
Regarding sati, the Company Government had initially adopted a com-
promise policy of dissuading the practice by criminalising involuntary
sati occurring through application of force, and of maintaining peace
and tranquility in case of voluntary sati with a conviction that regen-
erating influence of widening knowledge and natural instinct for sur-
vival would cause discontinuance of the practice. In 1789 the Company
Government enquired about its territorial jurisdiction to deal with the
practice, and tactfully avoided action on ground of lack of jurisdiction,
but advised about gentle dissuasion.’® In 1805 Elphinstone, Magistrate
of Bihar intervened against burning of an intoxicated 12-year-old
widow. On the basis of expert opinion about Hindu Sastra. the District
Magistrate issued circular requiring judges not to allow practice of sati
when the woman was pregnant, intoxicated, less than 16 or coerced.
The circulars of 1813, 1815 and 1822 clarified about its practice amidst
jogis, about the requirement of making adequate provisions of main-
taining their children below the age of three years’ and about the dis-
tinctions between sahamarana and anumarana. These circulars were
permissive in character, but confined the scope of sati practice. When
the orthodox section of Hindus opposed the circulars in 1817, Ram
Mohan Roy and his followers submitted counter petitions in support
of the circular. For creation of public opinion, Roy resorted to writing
of pamphlets and organisation of village committees.
Despite these efforts, 6632 cases of self-immolation of widows were
reported between 1815 and 1824, most of which occurred in Bengal’
and mostly amidst the Brahmin caste. Along with firmer establishing
of the British regime in India, and growth of public opinion against
sati owing to collection and publicising of empirical evidences on its
practice, legislative intervention to abolish sati was attempted in 18209.
While enacting the law Lord William Bentinck said, “I feel a legislator
for the Hindu; descending from these higher considerations, it can-
not be dishonest ambition to wash out a foul stain on British rule, to
stay a sacrifice of humanity and justice to a doubtful expediency.”
He pleaded for disassociation of religious belief and practice from
blood curdling murder and for emancipation of the Hindu mind and
action from the shackles of brutal excitements. The policy of state
‘*S Correspondence between Collector of Shahabad and Lord Cornwallis referred
in R.C. Majumdar, supra, n. 129 at p. 818.
‘® Occurrence of sati in large number in Bengal, the land of Dayabhaga which
recognised property right of woman on behalf of her husband, has provoked some
question whether sati was the method of extinguishing her property right. See, Uma
Shankar Jha and Premalata Pujari, infra, n. 174 at p. 59.
'" Cited by MV. Krishna Rao, supra, n. 155 at p. 23; Amiya P. Sen, supra, n. 154 at
pp. 98-01.
Sa
r 105
e
intervention in social affairs was a controversial issue. H.H. Wilson
expressed undesirability of passing law against the religious feelings
of vast body of Hindu population and suggested about creation amidst
Hindus public opinion and awareness against sati prior to its aboli-
tion." Ram Mohan Roy, identifying himself as supporter of abolition
of sati, gathered support from Smritis, which prescribed asceticism
rather than self-immolation for widows, and submitted petition in
support of abolition.’ The conservatives opposed the abolition move
and objected to misreading of sastras.
After the enactment also, Roy and his followers continued to cre-
ate public opinion against sati. The ongoing debate within the Hindu
community was animated by both the viewpoints, rationalism and
conservatism, and was sharpened through modern education. Innate
strength of the society towards healthy resilience with requisite inner
corrections had a socially redeeming effect. The apparent externality
of legal intervention was, in fact, reflection of an interrogating image
of the age, for whose internalisation society was not to shy away, but
had to adjust and readjust itself, whether with reluctance or whole-
hearted acceptance. The gap that was left between legislative model
that pricked the pride of society’s orthodoxy’ and society’s receptiv-
ity of transformation had to be filled up by locally alerted adminis-
tration, efficiency of law enforcement and responsible public opinion.
It is interesting to know that the village administration, monitored
by District Administration, was entrusted with the responsibility of
effectuating the sati abolition law. The narration about law’s imple-
mentation in some of the reported judgments depicts the saga of local
persuasion, cautioning and education. As soon as death of adult Hindu
male occurred or its likely occurrence guessed, police patel or village
officer had the responsibility of keeping surveillance over the house
and immediately inform the district administration, which would
rush to the scene with a batch of police personnel and would warn
and persuade and stay until the fear of sati was allayed. That creative
elements of social energy for self-rectification were triggered by the
colonial law is clear from the application of the law in princely states
of Rajasthan and other parts of India also.’
1 Excerpted in Amiya P. Sen, supra, n. 154 at p. 103.

1996 & 2000).
2 Janaki Nair, Women and Law in Colonial India (NLSIU, Bangalore
of Culture” in (1984)
173 Ashis Nandy, Sati, at p. 175; “Cultures of Politics and Politics
in Uma Shankar Jha
22 Journal of Commonwealth and Comparative Politics 265 cited
fet
infra, n. 174 at p. 58.
and Premalata Pujari (Eds,),
ie For sabieite discussion see, Uma Shankar Jha
(Kanis hka Publications, New Delhi
Indian Woman Today, Vol. I; Women in the Flames
1990) at pp. 142-45.
rn en
sash
Although there is no statistical detail about sati instances after 1829,
it appears the number went down so drastically that it was almost
wiped out except the stray instances reported in the annals of case
reports. Under Section 306 of the Indian Penal Code abetment to com-
mit suicide is punishable with imprisonment for a term which may
extend to ten years and also with fine. Abettors to sati are prosecuted
under this provision.”5 The occurrence of Sati in 1985 in Rajasthan
influenced Parliament to enact the Sati (Prevention of Glorification)
Act.7°
While high sensitivity and humanism were pouring in refining the
social morals and in evolving laws in matters where life and death
questions were involved, same amount of seriousness could not be
found in situations where only marriage opportunities of women
were at stake and cultural faults were not that deep. Widow remar-
riage and fixation of marriageable age were the controversial issues
that attracted the questions, who should author the change process,
when, and whether the social reform should wait for political inde-
pendence, and what should be the direction of change. On the sub-
issues involved, whether law shall superimpose social change and if
so with what consequence, the experience gained in this sphere is of
great value.
2.4.3.3 Widow remarriage

During the Rig Vedic period, widow remarriage was permissible.’77
But in course of time, with enhanced orthodoxy and caste restric-
tions for marriage, amidst the higher castes the practice ceased to con-
tinue. While the Smritis condemned the practice of widow remarriage,
Mitakshara remarked that widow remarriages took place by custom
among certain castes.’”8 Realising the relation between prohibition of
widow remarriage and infanticide or birth concealment, the Indian law
Commission sought the opinion of the Sadar Courts in 1837 for legally
permitting widow remarriage, only to be told that since the proposal
went against the native religious sentiments, it was to be dropped.
Owing to campaign inaugurated by Ishwar Chandra Vidyasagar in
favour of widow remarriage, justifying its practice on the basis of true
construction of shastras, the Hindu Widow Remarriage Act 15 of 1856,
which legalised marriage of widows, was passed. However, it disenti-
tled widows on remarriage right to retain or claim the property of the
Emperor v. Ram Dayal, ILR (1913) 36 All 26; King-Emperor v. Vidyasagar Pande, ILR
(1928) 8 Pat 74; Tejsingh v. State, AIR 1958 Raj 169.
6 See infra, Ch. 13 for elaborate discussion.
"7 Romila Thapar, op. cit., at p. 41.
8 Manu, V-162; Mit on Yaj., II-51; PV. Kane, Vol. III at p. 453.
Law ard social transfo rmation in modern
Sa a ghee a nl India
lap hn rrr 107
former husband. Vidyasagar’s book on Marriage of Hindu Widows was
widely debated amidst traditionalists and reformists. The Smriti con-
cept that wife was half of the husband, and practically the husband's
wealth, had given rise to a sentiment that the taker of wife was sad-
dled with the debt obligation of the deceased.” To do away with this
sentiment, the Bombay Act of 1866 declared that “no person who has
married a widow shall merely by reason of such marriage, be liable for
any of the debts of any prior husband of such widow.”®°
In spite of efforts to bring changes through propaganda, monetary
inducements and influence of great personalities like Vidyasagar,
Dayanand Saraswati, Ranade and Virasalingam Puntulu in various
parts of India, the movement for widow remarriage evoked less enthu-
siasm and response and yielded meagre returns. Social milieu was
not willing to carry it forward to the expected levels. Worse, its prop-
erty clause deterred widow remarriage even amidst lower castes where
it was practiced earlier in expectation of property support." On the
other hand, like the practice amidst some communities where karewa
custom of widow remarriage was permitted in order to retain share of
deceased son within the family, the operation of 1856 Act in Bombay
and other provinces resulted in widow remarriages within the fami-
ly.3 Disappointed with legislation, the reformers turned to educa-
tion. Backwardness in female education provoked them to encourage
women’s education, which could enable their participation in social
reforms debates. Tarabai Shinde’s (1858-1922) Stri Purush Tulan, which
made incisive analysis of death penalty upon young Brahmin widow
who had murdered her illegitimate child, was a critique of patriarchic
society that practiced double standards on morality. Pandita Ramabai
Saraswati’s advocacy of female education, social work of establishing
and running home for widows and critical writings about Rakhmabai
case where court had ordered for restitution of conjugal rights upon
an unwilling wife, who was a victim of child marriage, created pro-
woman sensibility.*+ Her verbal attack on conservative outlook all
over India, which she depicted to arise “as one man and girded its
79 PN. Kane, at p. 453.

180 S. 4 of the Bombay Act VII of 1866.
81 Janaki Nair, supra, n. 167 at pp. 62-63; From 1856 to 1900 only 300 widow
remarriages took place according to Ranade.
182 Matungini Gupta v. Ram Rutton Roy, ILR (1892) 19 Cal 289 cited by Lucy Carroll,
p. 66.
Law, Custom and Statutory Reforms, at pp. 9; Janaki Nair, supra, n. 167 at
s
183 The karewa practice had resulted sometimes in polyandry by deceased husband
father-in-law. See,
brothers and sometimes marriage of widow daughter-in-law by the
anaki Nair, supra, n. 167 at p. 65.
re 1996 & 2000) at
: 4 Janaki Nai, Women & Law in Colonial India (NLSIU, Bangalo
pp. 69-70.
108 Historical and sociological discours e
e
OPT 8 SN e ee
loins to denounce the helpless woman’, was an eye-opener about the
male bias.
Today, life expectancy of people has increased, and there are less
instances of early widowhood. Compared to the past practices of impos-
ing various social disabilities starting with dress code and extending
to exclusion from auspicious ceremonies the present position is toler-
able owing to education and enlightenment. After the passing of the
Hindu Succession Act in 1956, widow’s succession to her deceased hus-
band’s property does not cease with remarriage. The Hindu Marriage
Act, 1955 permits marriage between any two Hindus who do not have
any living spouse. Formal repeal of the 1856 Act has put the matter
beyond confusion.
2.4.3.4 Prohibition of child marriage

Child marriage was another grave social evil towards which formula-
tion of legal policy was problematic because of lack of social consen-
sus, dispute about competence of the colonial rule to reform, and self-
restraint on the part of Government in matters of social reforms. In
response to the campaign made by Vidyasagar and Keshav Chandra
Sen against the child marriage, the Penal Code of 1860 fixed the age of
consent for sexual consummation as 10 years’ so that interests of even
married girls below the said age could be protected. In 1872 Native
Marriage Act was passed in tengal fixing the minimum age for mar-
riage of 14 for girls and 18 for men. But the Act was not faithfully fol-
lowed even by the elite. In Maharashtra campaign by Malabari, Ranade
and others did not become successful in getting state intervention.*®
Conviction of Hari Mohan for having fatal sexual consummation
with his wife below the age of 10 years’ raised public uproar both for
and against punishment for marital rape of child wife. Rakhmabai’s
refusal to respect her child marriage with her uneducated husband
resulting in judicial order for restitution of conjugal rights and for her
arrest in case of non-compliance also raised widespread debate about
child marriage.’** Bal Gangadhar Tilak vociferously opposed reform
of the Indian tradition on account of dislike about reforms by imperial
imposition. He viewed that “reform which was imposed upon people
through law could not be effective because it could neither ease family
pressures upon the young couple, nor help the young couple to control
its emotions; only education and knowledge could bring about this
change.” He strictly subordinated the issue of social reform to the
85 Tbid, at p. 75.
86 Ibid, at p. 76.
"7 Werner Measki, Hindu Law Beyond Tradition & Modernity (Oxford University
Press, New Delhi 2003) at p. 338.
Law and social
a at transfo rmation
ones
r Uo
r geammeatieitin30
modern
r India 109
cause of independence. As Janaki Nair comments, “Tilak represented
an important moment in the transformation of cultural nationalism
into a distinctly political nationalism, when embarrassment to Indian
tradition was turned to pride.”"*8
Malabari campaigned relentlessly in England for raising the age
of consent to 12, owing to health and eugenic reasons. In 1891 Penal
Code was amended accordingly. But the Government abstained from
enhancing minimum age of marriage in order to avoid the displeas-
ure of the traditionalists. Striking a cautious path of self-restraint in
the matter of social and religious affairs after 1858, the Government
resolved in 1886, “Legislation, though it may be didactic in its effect,
should not be undertaken for merely didactic purposes; and in the
competition of influence between legislation on the one hand, and
caste or custom on the other, the condition of success on the part of the
former is that the legislature should keep within its natural boundaries,
and should not by overstepping these boundaries, place itself in direct
antagonism to social opinion.” While this sounds hesitancy of colonial
rule, Ranade sought an activist approach of State when he observed,
“As the state in its collective capacity represents the power, the wisdom,
the mercy and charity of its best citizens, it must give effect to whole-
some movements which might die for want of support.’"*? The compe-
tition between consensus and conflict model of social change was thus
not merely theoretical.
In 1893, in Princely State of Mysore a law was enacted fixing the
minimum age of marriage for girl as 8 and prohibiting the marriage of
males above the age of 50 with girls below the age of 16. Interestingly,
the heads of prominent maths were consulted in finalising the Bill.
The reformist approach was strengthened when All India Women’s
Conference, established in 1927, pursued a Bill restraining child mar-
riage amidst Hindus initiated by Har Bilas Sarda in 1929 and fixing the
age of marriage at 14 and 18 for girls and boys respectively.’" Sarda Bill
was discussed in the Select Committee with the participation of women
members and witnesses, and its scope was extended to all communi-
ties. In spite of communal differences in the Legislative Assembly, it
was passed as applicable to all communities thus demonstrating emer-
gence of broad frame of mind for reform. Outside the Assembly elite
support grew in favour of the Bill in the light of assertion by the AIWC
188 bid, at p. 74; see also, Yogendra Singh, Modernisation of Indian Tradition (Rawat
Publications, New Delhi 1999) at p. 98. SeNOABA
18 MV. Krishna Rao, The Growth of Indian Liberalis m in Nineteenth Century (H.
Venkataramaiah & Sons, Mysore 1951) at p. 207.
at
1% Janaki Nair, Women & Law in Colonial India (NLSIU, Bangalore 1996 & 2009)
piZZ.
11 Tbid, at pp. 79-81.
ee
OE
members’ assertion that “We want new shastras”. The feminist voice
echoing in these words is representative of the new age’s dawning.
But amidst the orthodoxy, there was veritable stampede for celebrat-
ing child marriage before the Act came into effect in 1930. After its
commencement also there was obstructive tendency in prosecutions
under the Act, resulting in acquittals or suppressions. The effort for
enhancing minimum age of marriage failed in Mysore owing to giving
of preference to female education over legislative change, and attitude
for keeping law beyond the compound walls.
2.43.5 Other social reforms

One notable feature of the Samaj movements and missions is that they
denounced caste as an irrational obstacle to social solidarity, human
equality and national unity. The maturing public opinion was given a
statutory confirmation. Recognition of opportunity for dissolution of
marriage, inter-caste or inter-religious marriages and women’s right
to property in these circumstances was the theme in various legisla-
tion. The Caste Disabilities Removal Act, 1850, the Parsi Marriage and
Divorce Act, 1865, the Native Coverts Marriage Dissolution Act of 1866,
the Indian Divorce Act of 1869 the Special Marriage Act, the Indian
Christians Marriage Act of 1872, the Indian Succession Act of 1929 and
subsequent amendments to them for enlarging their scope are out-
standing examples of positive social legislation, Regarding protection
of women’s interest, various provisions were enacted in the Indian
Penal Code and Criminal Procedure Code. But shallow treatment of
woman question in the matter of adultery and bigamy was influenced
by the prevailing social considerations. On the other hand, the atten-
tion given to female education in administration’s policy is worthy of
attention.
On the whole, women’s question gained a large space in the
agenda of social reform for attacking patriarchic notions during this
period. British policy varied from pre-mutiny enthusiasm for reform
to post-mutiny over caution. Lessons about grass root level effective
enforcement of legal policy and interaction between state and society
or between traditionalists and reformists have been valuable at the
face of colonial rule vis-a-vis a rejuvenating society. Krishna Rao esti-
mates, “Legislation was the most effective of the ameliorating agencies.
The expediency of legislation as an instrument of social reform, and
importance of the enactments of uniform, simple, codified laws, were
recognised by the enlightened and the liberal middle class; but they
felt that changes contemplated should not be deep and far reaching or
revolutionary in character, in the sense of seeking to uproot the foun-
Law and social transformation in modern India 111
dations of the existing system or to engraft principles upon it that are
alien to its spirit."
2.4.4 Codification, economic legislation and reforms

In the background of a medley of widely differing laws, codification
of criminal and civil law was attempted. Indian Penal Code, Criminal
Procedure Code and Indian Evidence Act brought uniform principles
throughout the country and established the Anglo Saxon due proc-
ess system, which had its own human rights dimension and had cast
considerable impact upon social life in India. To meet the demands
of modern trade, commerce and other economic activities, law of con-
tract, agency, partnership, property and negotiable instruments were
codified. On trusts, easements, societies and endowments also legisla-
tion came by the efforts of Law Commission. Laws on factories, mines,
plantations, trade unions and industrial relations were enacted during
the second haif of the 19th century and first half of 2oth century. M.C.
Setalvad observes, “Though enacted primarily to help the expansion
of business they had undoubtedly a great formative effect on the mind
of Indian trader. These laws affected not only the manner of his carry-
ing on his trade but also altered the basis of rural relationship in busi-
ness from that to which he had been accustomed.”
The new legal order gradually spread the modernising of the cul-
tural norms in Indian society. Yogendra Singh analyses from cultural
viewpoint that the change hit two pivotal value systems of traditional
culture viz. hierarchy and holism. The new legal norms, anchoring in
rule of law concept and justice, undermined the caste-based distinc-
tions. In practice, the differences broke down. As O’ Malley records,
“A change was gradually effected. In 1841, for example, it was noticed
that the Chamars, despised untouchables of Northern India, were not
afraid to bring suits against their landlords, and it was added, “noth-
ing vexes or annoys the Zamindars in our whole system so much as
this.” Law’s introduction of egalitarianism or culture of equality was
12 MV. Krishna Rao The Growth of Indian Liberalism in Nineteenth Century

(H. Venkataramiah & Sons, Mysore 1951) at p. 233.
18 The principles of English common law and statutes provided foundation for
the
Indian statutes subject to adaptations into Indian conditions. Best of the brains of
Law in
West and the East met to bring new law. See, MC. Setalvad, The Role of English
Mehta, The Common
India (The Hebrew University Press, Jerusalem 1966) at p. 36; M.C.
Law in India (NM. Tripathi, Bombay 1970) at p. 123. ,
154 MLC. Setalvad, Culture and Law, at p. 93.
Modern India and
19% 1.S.S.0’ Malley, “The Impact of European Civilisation” in
(Oxford University
the West: A Study of Interaction of their Civilisation (Ed), O° Malley
of Indian Tradition (Rawat
Press, London 1941) at p. 59. Yogendra Singh, Modernisation
Publications, New Delhi 1999) at p. 100.
112 discourse
Historical and sociological aR
g
Da pge i rm
a measure of radicalism. Yogendra Singh notes that compared to the
personal law, the impact made by the legislation on land rights, com-
inter-
merce, trade, industries and labour, etc., which involve material
ests of the people directly has been relatively greater.'”°
Holism stood for collective entity, collective rights and duties.
Ancient Indian tradition recognised only collective entities like clans,
castes, sub-castes, guilds, etc. and individual was not recognised as
unit of social and cultural participation.” The new legal system under
the British marked a major break from the past. It magnified individu-
alism and rationalism at the expense of finer sentiments of enjoying
the resources through communitarian forum. The Hindu Gains of
Learning Act of 1930 is one of the apt examples for unilateral indi-
vidualisation of communitarian property. Individualism overempha-
sises materialism and ignores obligation to group.’ The legal system
which had so ardently believed in subordination of desires (kama) and
economic processes (artha) to just law (dharma) of social welfare had to
make big departure from this basic proposition or goal owing to the
new law. O’ Malley writes, “The spirit of individualism, to which other
factors have also contributed, has already done much to modify the
organisation of a society of which the group rather than the individual
is the unit and in which a man’s status is determined by the rights
which belong to him as a member of a group."
2.4.5 Freedom movement: a great march with social reform ideas

Comparable to indigenous efforts of social reforms in grand scale
through intellectual reawakening, the freedom movement in India
was a continued intensive endeavour to attain social reform through
political liberty. Like the former, it had also the guidance of great lead-
ers and support of active associations. But in terms of mass involve-
ment and seriousness of commitment of the rank and file to the cause,
it had even surpassed the former. Hence, the quantum of change that
it could visualise in policies and action and the reach of questions it
could address were so considerable that they were destined to make
indelible impact upon the subsequent legal system for generations.
The enlightened middle class had formed the sheet anchor of the
whole movement but attracted and involved the common people and
sacrifice-ready bourgeoisie into its fold.
" Yogendra Singh, supra, n. 195 at pp. 100-01.

"7 See supra, n. 2 at p. 2.2
"8 See, P. Ishwara Bhat, “A Critical Appraisal of the Hindu Gains of Learning Act”
(1986) 13 JILI.
® L.S.S.O’ Malley, at p. 630. Yogendra Singh, supra, n. 195 at p. 101.
eS 2 Aco piles i toecn lea c rrrrd113
The sociological background of Indian nationalism has been sur-
veyed by eminent sociologists. A.R. Desai considers Indian national-
ism as a product conscious reaction of the people against economic
exploitation inflicted by the British. The urge for political freedom grew
with an urge for economic freedom. In the background of breakdown
of agriculture, impoverishment of industries and bankruptcy in trade,
demand for freedom took a shape of class conflict. Gandhiji’s schemes
for economic amelioration through khadi, swadeshi, rural upliftment,
caste removal and women’s betterment had mass appeal because of
these factors. All sections of society were motivated by desire for one
or the other economic gain, which were institutionalised through
class interests. But there were limitations to nationalist movement
owing to cleavages between mass mobilisation on horizontal lines and
its vertical mobilisation by elite nationalist leadership. Yogendra Singh
emphasises the role of inter-structural autonomy of basic social institu-
tions like social stratification, values, beliefs and political administra-
tion, which responded to the forces of encroachment from outside like
colonialism, cultural contact and modernisation. Localism and nation-
alism interacted with each other continuously as a part of social proc-
ess. Emotional integration of different groups of people belonging to
different languages, ethnicity, regions and religions could arise under
the common banner of nationalism. As Singh observes, “Nationalism
is a process, a product of historical conjecture of social forces through
which the linkages are not only established or expanded but also qual-
itatively strengthened.” It is important to note that nationalism is not
a finished product but an outcome of maturing social process arising
from organic social integration and harmonisation. Synthesis of secu-
larism, welfare and self-rule was inbuilt in it. The seeds for vigorous
pursuit of social justice goals were in the womb of modernising model
of social process.
As a part of this pursuit, thinkers, popular leaders, mass organi-
sations and grass root workers of associations rekindled and shaped
social transformation ideologies. Gandhiji propounded the idea of
retaining decision making power in the matter of social reforms exclu-
sively in the hands of people. He said:
“Government cannot afford to lead to matters of reform. By their very
nature, governments are but interpreters and executors of the expressed
will of the people whom they govern, and even a mest autocratic gov-
ernment will find itself unable to impose a reform, which its people can-
healthy
not assimilate...Well-ordered, persistent agitation is the soul of
progress and so, if it were not, I would not let the governments rest
rest
till this reform is carried through. Not allowing the government to
does not by any means embarrassing the governmen t. A wise govern-
sie A te ee Urn bircabsimibadiciihet wiih Sime ee un yes een Carian ees
ment welcomes and needs the support, warmth and encouragement of
such an agitation.”*°°
He believed in gentle persuasion and convincing of the evildoer by
devoted social reform workers. Rabindranath Tagore realised the
inadequacy of law in resolving the social problems as that of infant
marriage. Holding that main aim of Hindu marriage is fulfilment of
certain routine social needs, and that consensus is the basis of happy
family, he pleaded for active role of the educated classes in effectuating
the change process, instead of confining the use of education to liveli-
hood and entrusting reform to state force. He said:
“Those who resort to laws in bringing about social change end up see-
ing only one aspect of the problem and not its complex connection with
several other related social issues’?
Campaigning the cause of female education as a means of combat-
ing exploitations, Sarojini Naidu charged men that they had not done
enough to bring the blessings of knowledge that enlivens and beauti-
fies women’s life, appealed to men to restore to women their ancient
rights and exhorted, “Educate your women and the nation will take
care of itself, for it is true today as it was yesterday and will be to the
end of human life that the hand that rocks the cradle is the power that
rules the world.’”?
Apart from the role of great leaders, the role of associations in strug-
gle for political freedom cx India is of greatest importance in terms
of their reach, involvement and impact. The natural human society,
by its organisational strength, responded to the greedy and artificial
power structure of the colonial master that tried to dominate over it.
The naturalness of society, which Rabindranath Tagore perceived, was
formed of the expression of those moral and spiritual aspirations of
man towards harmonious development with, and disinterested love
for fellow creatures.” Thus, associating for self-governance was indis-
pensable inclination of natural society. The revolt of 1857 had roused
hopes for large-scale people’s alliance to put forward united national-
ist movement.
Even before the formation of Indian National Congress in 1885, there
were local political organisations like Indian Association led by S.N.
Banerjee, Bombay Association led by Dadabhai Naoroji, Sarvajanik
*” MLK. Gandhi, “Speech at Trivandrum” reproduced in The Collected Works of
Mahatma Gandhi, Vol. XXXV (Ahmedabad 1969) at pp. 102-05; Amiya Sen, supra, n. 154
at pp. 111-12.
*" Translated and excerpted by Amiya Sen, at p. 161.
* Speech at Calcutta, 1906. Speeches and Writings of Sarojini Naidu, Madras, at
pp. 21-22; Amiya Sen, supra, n. 154 at p: 152,
* Rabindranath Tagore, Nationalism, at p. 9 cited in Tara Chand, History of Freedom
Movement in India, Vol. III (Publications Division, New Delhi 1972) at p. 180.
a ta eee 115
Sabha established by Chiplunkar2% The Indian National Congress,
which emerged as the premier nationalist political organisation had
the following objectives: developing the close relations between
national workers, dissolution of various types of prejudices amidst
classes, consolidation of the feeling of national unity, and respond-
ing to the vital Indian problems on the basis of educated public opin-
ion.* The Congress became a significant forum for setting the politi-
cal trend by criticising governmental policies and demanding changes.
Groups within the Congress-—liberals and extremists, traditional and
secular and leftists and moderates-demonstrated intra party liberty
for differences.
New associations sprang up to agitate against partition of Bengal
(1905). The Dawn Society, Anti-Circular Society, Bande Mataram
Sampradaya, Swadeshi Samaj, etc. in addition to old associations, vig-
orously carried on the agitation, boycotted the foreign goods and sup-
ported the Swadeshi movement. National reawakening with a feel-
ing of self-reliance, patriotism and national pride began to vibrate all
around. Collection of fund from public not only formed the nucleus of
national fund but also operated as an instrument of people’s involve-
ment.””” There were also terrorist organisations like Anushilan Samiti.
The Servants of India Society, established by Gopalakrishna Gokhale
in 1905, had the aim to train “national missionaries for the service
of India and to promote true interests of the Indian people” and to
do good work without partisan motives in whatever field—whether
in schools, slums, cooperatives, papers or in health care service.”
Regional service organisations established by its members like N.M.
Joshi, H.N. Kunzru and Bajpai rendered a great variety of services to
the people and moulded the national life in a duty conscious manner.
Seva Samiti formed by Kunzru aimed to promote education, sanitation
and physical culture.”® It provided social service during fairs, famines,
floods and epidemics.
The coming of Mahatma Gandhi on the national scene gave a new
dimension to the use and functioning of associations. His experience
with the Indian National Congress and the Ambulance Corps that he
organised in South Africa made him mature in organised self-help.
24 Tara Chand, infra, n. 132 at pp. 525-45.

25 AR. Desai, infra, n. 214 at pp. 292-94.
26 Tara Chand, supra, n. 233 at p. 322.
27 Ibid, at p. 321. Rs 50, 000 were collected after a single public speech of S.N.
Banerjea.
208 RC. Majumdar, supra, n. 129 at pp. 938-39.
2» Ibid, at p. 939 eee eneh ees
ent
20 J.B. Kripalani, Gandhi, His Life and Thought (Publications Division, Governm
of India, New Delhi 1970) at pp. 16-18.
116
Sg Rs Historical
BNA ati anicabebencr eet, amie al
and sociologic i discourse
ehetheneaa
He organised Majoor Mahajan Sangh in Ahmedabad in such a way
that labour problems could be resolved amicably without strike and
differences and constructive help for the workers’ family could be
extended." After his intervention, Indian National Congress, which
was hitherto only a three days fair of English-educated Indians dur-
ing X-mas holidays, became a mass organisation with branches spread
over the length and breadth of the country working for the whole year
and looking to the grievances of people.” For a variety of his con-
structive works he formed associations like Charkha Sangh, All-India
Khadi and Village Industries Board, Achhut Nivaran Samiti, Adijati
Sevak Sangh, Nai Talim Sangh, Go Seva Sangh, Harijan Sevak Sangh,
ete?
There were also the other political organisations like Muslim
League, Home Rule League, Hindu Mahasabha, Swaraj Party and
Workers’ and Peasants’ parties with their branches spread over differ-
ent parts of India. All-India Depressed Classes Association and All-
India Depressed Classes Federation constituted by Dr. B.R. Ambedkar
provided group strength to crusade against untouchability.74
In the economic front, the organisations of farmers, factory workers
and of artisans tried to protect their distinct interests. Peasant move-
ment gathered support from the nationalist movement or became a
part of it, whether in Champaran, Bardoli or in the South. Trade Unions
were also constituted in industrialised centers. In 1920 All India Trade
Union Congress was formed by N.M. Joshi.” Self-help groups like
Zamindars’ Associations constituted for protection of tenure were
also prevalent. Cooperative societies were also established to help the
rural mass and the urban poor with cheap credit and other facilities.
The collectivist ideology brought out by Gandhiji laid great empha-
sis On economic justice and rural development. His theory of trustee-
ship gathered support from religion and philosophy and appealed
to the rich, “Earn your crores by all (legitimate) means. But under-
stand that your wealth is not yours, it belongs to the people. Take what
you require for your legitimate needs, and use the remainder for the
society.’*"° Gandhiji recognised ownership of property in the hands of
trustees rather than state, and the usufructs were to go to the benefit of
the needy. He regarded capital and labour as mutual trustees and both
71 bid, at p. 407.
712 Ibid.
713 Ibid, at p. 408.
A.R. Desai, Social Background of Nationalism (Oxford University Press, London
1948) n. 58 at p. 243.
219 R.C. Majumdar, The Advanced History of India (4th Edn., Macmillan, New Delhi
1978) at pp. 939.
216 M.K. Gandhi, Harijan, 1-2-1942.
Law and social transfo
e e rmation in modern India 117
e lt (ate
as the trustees of consumers. The real implication of equal distribution
was that each man shall have wherewithal to supply his entire natural
needs and no more.” He put forward the paramountcy of duties over
rights by stating, “All rights to be deserved and preserved come from
duty well done. Thus the very right to live accrues to us only when we
do the duty of the citizenship of the world.”* Rights unsupported by
duties or unearned incomes were usurpations according to him. The
trusteeship doctrine had logically relied upon collective duty and non-
violence.
A legal environment for facilitating the formation and working of the
non-government organisations had been created through the Societies
Registration Act, 1860, the Cooperative Societies Act, 1912, and vari-
ous Charitable and Religious Endowments and Trusts Acts. While tax
legislation gave exemptions to charitable institutions, restrictive inter-
pretation of the law had excluded Tilak Fund and Khadi Gramodyog
from such advantages.” The Societies Registration Act has been less
intervening and more facilitative in its policy and approach.
The modern Indian experience exhibits profuse examples of creative
use of associational power to represent and serve various social sectors.
Pluralist features and consequences of communal divisions were prob-
lematic factors that were to be responded by a sense of coexistence and
approach of multiculturalism. The mass movements that the Indians
could organise and execute with unique feature of non-violence—
whether Swadeshi movement, non-cooperation, civil disobedience or
Quit India movements—were projections of organisational strength.
The focus on all-round social progress, eradication of social evils and
promotion of gender justice and economic justice made the nationalist
movement not only multidimensional but also infused legitimacy to
the whole task. It is a bright lesson of history that the potential social
power scattered hither and thither could be built into a creative energy,
and a force to be reckoned. A heap of cotton remains only an idle mass,
if cared little. But when converted into fibres or strands and whe1i ‘nter-
twined into a strong rope, it can anchor even a mighty ship in trou-
blesome water.” Protection of workers against exploitation, agenda
for agrarian reforms, Gandhian concept of rural self-sufficiency were
emerging as popular objectives of enlightened culture. On the other
hand, the politically motivated differences wedged between Hindus
217 MLK. Gandhi, Harijan, 25-8-1940.

218 M.K. Gandhi, Harijan, 8-6-1947.
Bom 61, Subhas
219 Re, Lokamanya Tilak Jubilee National Trust Fund, Bombay, AIR 1942
of the Tribune Press
Chandra Bose v. Gordhandas I. Patel, ILR (1940) Bom 254 and Trustees
and propaganda for
v. CIT, (1938-39) 66 IA 241 are the cases where political education
national independence were held as not charitable purpose .
20 J.C, Kumarappa’s example in Gandhian Economics.
118 Historical and sociological liscourse
and Muslims through the policies of separate electorate and arbitrary

preferences and discriminations paved the way for two-nation theory
and communalism. It is remarkable that with martyrdom of Gandhiji
on the cause of secularism, moral compulsion of its ideal is made a
central principle of the Republic of India.
The most conspicuous way of streamlining and shaping social
reform ideology can be found in some of the resolutions passed by
Congress from time to time. The tilt in favour of socialist ideology is
implicit in them, which influenced the making of the Constitution.
The Independence Day Declaration of 26 January 1930 was followed by
Congress Resolution to the effect that “We believe that it is the inalien-
able right of the Indian people, as of any other people, to have freedom
and to enjoy the fruits of their toil and have the necessities of life, so
that they may have full opportunities of growth. We believe also that
if any government deprives a people of these rights and oppresses
them the people have a further right to alter it or abolish it.” Jawaharlal
Nehru said in 1930:
“We have to decide for whose benefit industry must be run and the
land produce tood. Today the abundance that the land produces is not
for the peasant or the labourer who work on it; and industry’s chief
function is ...to produce millionaires. However golden the harvest and
heavy the dividends, the mud huts and hovels and nakedness of our
people testify to the glory of the British Empire and of our present social
system. Our economic progyumme must therefore be based on a human
outlook and must not sacrifice man to money.’?”4
2.5 Sociological discourse

A critical study about the process of social change, the agencies that
bring about it, its impact upon the structure of society and the direc-
tion, level and magnitude of change is one of the important themes
in sociology. Society is not mere collectivity of human beings. But the
institutions and values that keep it a responsible body constitute its
fabric. Rabindranath Tagore regarded society as a natural regulation
of human relationships, so that men could develop ideals of life in
cooperation with others.*” Indian culture, spread over a period of five
millennia, as discussed earlier, has developed and adhered to unique
principles like humanism, universalism, coordination, holism, and
21 Cited by J.K. Mittal, “Nehru and Objectives Resolution: A Historical Perspect

ive”
in Rajeev Dhavan and Thomas Paul, Nehru and the Constitution
(ILI, New Delhi, N.M.
Tripathi, Bombay 1992) at pp. 22-23.
% Rabindranath Tagore, Nationalism, at p. 9 cited in Tara Chand, History
of Freedom
Movement in India, Vol. III (Publications Division, Government of India, New Delhi
1972) at p. 180.
Sociological discourse 119
welfare of all. An analysis of sociological! theories on social change
from this perspective will help in appreciating the currents of social
change and law’s role in it. The theories range from sanskritisation to
modernisation and from functionalism to dialectic model.
M.N. Srinivas propounded the concepts of sanskritisation and
westernisation as methods of evolutionary forms of social change.
“Sanskritisation isthe processby which a‘low’ caste or tribe or-other
group takes over the customs, rituals, beliefs, ideology and style of life
ofahigh and, in particular,- ‘twice born’
a (dwija) caste. Generally such
changes are followed by a claim to higher position in the caste hierar-
chy than that traditionally conceded.to-the-claimant caste by the local
community.” It normally connotes improvement _in the economic
and political position of the concerned group. The dominant group’s
attainments are taken as referent points for upgradation of the lower
rungs of the society. The socio-economic deprivations of the backward
sections of the society are the concerns with which those sections
endeavour to level up their social position. While gradual integration
of the society through caste mobility is in its core, the fluidity of politi-
cal system, which it relies for ascendance, introduces factors of radical-
ism in the process of change. Peaceful and participative change for
upward growth is the hallmark of this model.
Westernisation connoted, “the changes brought about in Indian soci-
ety and culture as a result of over
150 years’ of British rule, the term sub-
suming changes occurring-at-differentlevels—technology, institutions,
ideology and values.”4 Humanitarianism, which included equalitari-
anism, secularisation, andrationalism, got emphasised through this
concept. The Indo-British impact in bringing reforms such as abolition
of sati, female infanticide, human sacrifice and slavery is a positive
contribution of westernisation. Rise of new political culture, nation-
alism, scientific developments and educational advancement due to
contact with the western system is product of this change. Both san-
skritisation and westernisation mutually interact and coexist, and are
instrumental for cultural changes. M.N. Srinivas considers that the
Indian communities have positively responded to secularisation by
accepting the new educational system, new laws regulating abuses in
administration of religious institutions and new laws governing fam-
ily life.2> He contrasts the peaceful changes in these contexts to the
deplorable change in values in recent times resulting in corruption,
1995
23 MN. Srinivas, Social Change in Modern India (Orient Longman, Hyderabad
Edn., Reprint 2003) at p. 6.
24 Ibid, at p. 50.
25 Ibid, at pp. 141-50.
120
ga
I i i a l = eese
Historical and sociological discour
communal violence and caste oppressions. He suggests for a creative

role of popular movements and of voluntary associations.””°
The Little and Great tradition approach applied by Robert Redfield,
Milton Singer and others regard that civilisation or the structure of
tradition grows in two stages: First, through indigenous evolution
(orthogenetic), and Second, through interaction with other cultures or
civilisations (heterogenetic).” While the folks and peasants develop
intimate localised culture (Little tradition), the reflective few or the
elite develop universalised patterns of tradition (Great tradition).
Interaction between the two gives rise to integration and continu-
ity of cultural changes. In India, the diverse regions, villages, castes
and tribes developed their distinct traditions upon whose basis Great
tradition was built. Thus cultural continuity became both cause and
product of common cultural consciousness shared by most Indians
with similar mental outlook and ethos. Yogendra Singh considers
the approach as more comprehensive than that of Sanskritisation
and Westernisation.??8 S.C. Dube classified traditions into: classical,
national, regional, local, Western, and local sub-cultural traditions,
and tried to analyse cultural changes at various levels.””? He viewed
that since Hindu philosophy was compendium of many systems of
thoughts, looking only from the angle of ritualistic practices could not
be appropriate.
Instead of focusing on cultural changes, some scholars began to focus
on structural realities like caste, kinship, class, occupational group,
factory system and bureaucratic structure and examined the network
of social relationships undergoing process of change. Changes from
joint family system to nuclear family, from caste to class group, or from
feudal system to egalitarian order are looked from functional view-
point to highlight the differences in types of activities and their social
implications.”° For example, introduction of factory system of produc-
tion that replaces cottage industry economy brings a sea change in the
factor of status, relations and economic roles of various participants."
6 Ibid, at pp. 172-88.

”? Robert Redfield, “The Social Organisation of Tradition” (1955-56) 15 Far Eastern
Quarterly at pp. 13-21; Milton Singer, “The Cultural Pattern of Indian Civilisation”
(1955-56) 15 Far Eastern Quarterly 23 at p. 24 cited by Yogendra Singh, Modernisation of
Indian Tradition (Rawat Publications, New Delhi 1999) at pp. 13-14.
28 Yogendra Singh, supra, n. 227 at p. 15.
% S.C. Dube, “The Study of Complex Cultures” in T.K.N. Unithan (Ed.), Towards a
Sociology of Complex Cultures in India (Prentice Hall India, Delhi 1965) at pp. 421-23.
*° Yogendra Singh, supra, n. 227 at p. 17.
*! Richard D. Lambert, Workers, Factories and Social Change in India (Princeton
University Press, New Jersey 1963) at pp. 16-17 observes that introduction of factory
system of production in Poona resulted in a shift from static and tradition-bound
society to progressive, universalistic and aspiring society.
Urbanisation, agrarian reforms, demographic changes, and labour or
women movements have also shifted the nuclei of authority.
Dialectic approach to social change, partly inspired by Marxian
thoughts, has viewed that the encounter of the Indian tradition with
the West unleashed many forces of contradictions and produced a new
middle class and released the conserved energies of the class structure.
As D.P. Mukherji writes, “The value of Indian tradition lies in the ability
of their conserving forces to put a brake on hasty passage. Adjustment
is the end product of product of the dialectical connection between
the two. Meanwhile is the tension...if it leads up to a higher stage, it
is also desirable. That higher stage is where personality is integrated
through a planned, a socially directed, collective endeavour for histor-
ically understood end, which-means,...a socialist order.”> A.R. Desai
traces the origin of nationalism to the economic conditions created by
the British colonialism. The disintegration of pre-British economy and
introduction of new patterns of economic relations released new social
consciousness. It was for clear economic reasons of exploitation and
denial of opportunities that vivid sections of the society demanded for
independence.34 A.D. Frank considered that Western colonisation had
deliberately exploited the colonised nation’s natural, human and mate-
rial resources by completely subjugating the production structure to
such an extent that even after independence the former colonies con-
tinued to have economic dependence upon the Western multinational
companies.”
Louis Dumont looks to the reaction of Indian minds to the revela-
tion of the Western culture and the impact of the elements of indi-
vidualism, freedom, democracy, etc. upon the Indian traditional social
structure.” His cognitive historical approach formulates a theme that
the traditional Indian social system recognised the legitimacy of social
and cultural innovations through the institutionalised role of social
reformer.
Gunnar Myrdal puts forward institutional model of social change.
The modernisation ideal for India consisted in rationality, development,
and planning for development, rise of productivity, rise of levels of liv-
ing, social and economic equalisation, improved institutions and atti-
tudes and national consolidation. He writes, “In India an intellectual

233 D.P. Mukerji, Diversities (Peoples Publishing House, New Delhi 1958) at p. 76.
Bombay
24 AR. Desai, Social Background of Indian Nationalism (Popular Book Depot,
1959) at p. 146. ce
25 Andre Gunder Frank, “The Wealth and Poverty of Nations” (1970) Economic and
Political Weekly 1179.
at p. 12. Yogendra
26 Louis Dumont, Contributions to Indian Sociology, Vol. I (1964)
Singh, supra, n. 227 at p. 21.
122 discourse
Historical and sociological aS
To i a ea
and moral conversion tends to be advanced as panacea for all kinds of
ills. But to change attitude without changing the social institutions is
a rather hopeless quest. This remains the basic dilemma and challenge
of Indian politics.”” There are also theories of social change based on
social, psychological and cultural framework or structure of Indian
society.”®
Each of the above approaches has specific advantages and limita-
tions. Yogendra Singh formulates an integrated approach stringing
together their logical principles. He elaborates the orthogenetic and
heterogenetic processes of cultural changes, and finds the theme of
continuity of basic elements in cultural evolution as a predominant
one.” Changes from within the holistic system (orthogenetic) through
the hierarchy of castes, deeds and life goals adhered io such conti-
nuity.#° The Hindu philosophy, beliefs, rituals and social practices got
integrated in oral transmissions and literary works, in fine arts and
creative works, and in multitude of Bhakti preaching in diverse lan-
guages.*41 Orthogenetic changes through differentiation and diversifi-
cation, occurred in the form of rise of Buddhism, Jainism, and reform-
atory cults brought absorbable changes within the framework of Great
tradition. The protest-cult and reform movement within the tradi-
tion gave impetus for self-rectification. The shift from ritual ridden
religious beliefs to simpler and humanistic principles and from hierar-
chic structure to abolition of social disabilities based on caste, sex and
religious beliefs was emphasised by social reformers. The social ren-
aissance of 19th century carried the task further, vindicating again the
competence for self-rectification within the community. In the sphere
of Little tradition, changes through sanskritisation and westernisation
directed towards conformity with Great tradition and continuity of
basic postulates.
Heterogenetic changes due to the impact of Islam and the British
rule, were reflecting “challenge-response” model of Arnold Toynbee.
*” Gunnar Myrdal, Asian Drama: An Inquiry into the Poverty of Nations, Vol. I
(Penguin Books, Harmondworth 1968) at p. 303.
** Narmedeshwara Prasad and M.C. Shekhar referred by Yogendra Singh, Social
Stratification and Change in India (2nd Edn., Manohar, New Delhi 2002) at p. 178.
*° Yogendra Singh, Modernisation of Indian Tradition (Rawat Publications, New
Delhi 1999)at pp. 24-27, 191.
0 Ibid, at pp. 35-37.
41 Ibid, at pp. 41-43.
2 Ibid, at p. 46.
Toynbee views about the process of growth of civilisation: “Growth is achieved
when an individual or minority or a whole society replies to a challenge by response
which not only answers the particular challenge that has evoked it but also exposes
the respondent to fresh response on his part. And the process of growth continues,
in any given case, so long as this recurrent movement of disturbance of equilibrium
Sociological discourse 123
The medieval period initially witnessed conversion, cultural syncre-
tism, and domination through political rule_as.the types.of interac-
tions between the two important traditions.*#4 In spite of equality of
status.enunciated-by Islam,amidst.converts.into Islam social hierarchy,
and family customs prevailed.** The Sufi tradition-of Islam
traditions
and efforts of Muslim scholars to reconcile some of the Hindu tradi-
tion with Islam and evolution of new administrative structure and
language brought the two communities together in the second phase
of medieval rule.*#° With the loss of political power to the British the
Muslim dissatisfaction-beeame-vocal because oftheir educational and
economic backwardness and the fear of dominance by the majority
community. This created.a tussle between-two.cultural forces and ger-
minated sentiments for separate state as early as 1888.77 The trends of
high political mobilisation and identity formation amidst the Muslim. ‘
community offered greater resistance to modernisation’s effort to alter
Islamic social codes.*#* The renovation of Islam as a religious practice
finds its center of gravity in educational reform rather than in reor-
ganisation of ecclesiastical hierarchy.
The impact of the British tradition upon Indian society is another
crucial factor that influenced patterns of social change. The basic ten-
ets of common law, equity, and universalism, the tradition of bureau-
cratic structure, military organisation and educational system and the
literature on democratic values posed serious challenge to the Indian
tradition and gave a new orientation to its development. The expo-
sure to the western values provided a humanist and critical outlook to
question the practice of social evils. The intellectual debate between
blind admirers of the West and the moderates who had great respect
for Indian traditions gave rise to a social dialogue for selection of pro-
gressive policy.” As Yogendra Singh observes, “These changes in the
social customs and institutions of the Hindu society were forerunners
of basic cultural readaptations to follow later in the society. The under-
lying values from which the rationale of these reformations emanated
were those of humanism, universal equality, dignity and freedom of
man.”%° Apart from education, legislation became an instrument of
ty Press,
is maintained.” Arnold Toynbee, A Study of History, Vol. Ill (Oxford Universi
London 1948) at p. 377. .
of Indian Tradition (Rawat Publications, New
44 Yogendra Singh, Modernisation
Delhi 199 9)
at pp. 66-68.
45 Tbid, at pp. 74-76.
246 Ibid, at pp. 69-70.
47 Ibid, at p. 71.
28 Ibid, at p. 82. Publications, New
#9 Yogendra Singh, Moderni sation of Indian Tradition (Rawat
Delhi 1999)at p. 92.
290 Ibid.
REEsociolo gical discourse
124
oe TE Histori
EERI E and
cal a SS
modernisation. The growth of a universalistic legal system introduced

consciousness of positive rights, humanist values and comfortable
arrangement for fair economic relations.”
Sociologists have surveyed the sociological basis of Indian national
movement. A.R. Desai has viewed that the rise of the middle class
intelligentsia, fundamental economic transformation, class struggle,
gradual expansion of popular basis for freedom struggle through
arousing democratic consciousness, through education and spread
of nationalist feeling in kisan and other social movements in various
parts of India were the sociological factors responsible for national
movement. Yogendra Singh considers modernisation’s achievement
in, or ongoing social process of restructuring of society, rational reso-
lution of counter tendencies like provincialism and communalism
and aim at vigorous pursuit of goals of social justice constituted the
essential social process underneath Indian nationalism.” Integration
of various sections of the society with overall economic progress and
social mobility forms central theme of nationalism.
The value-themes of Indian society’s growth have been identified
by Yogendra Singh as the principles of hierarchy, holism, continuity
and transcendence, which are interlinked with other social elements.*4
Modernisation ushered in new political culture, new developmental
strategy and re-stratification of society on new patterns. Sociological
analyses of feminist mover-ent, language controversies, communal-
ism, caste, tribal development, child care, urbanisation and globalisa-
tion’s impact upon culture give insights about the interesting process
and product of social transformation, which help in surveying law’s
role in the same.
In sum, sociological discourse on relation between law and social
transformation has looked to the instrument of law in the institu-
tional and historical context. The passage of traditional society from
colonialism to nationalism witnessed emergence of modernist values
reinforcing traditional principles of humanism and collective welfare.
The spurt of new legislation impinged the normative and cultural
system of the Indian society.» The educated middle class operated
as the forum to absorb and filter the new forces of change for giving
them to the rest of the society in gradual stages.° The aspiration for
*! Ibid, at pp. 99-100.

*? A.R. Desai, Social Background of Nationalism (Oxford University Press, London
1948).
*8 Yogendra Singh, supra, n. 227 at pp. 159--60.
54 Ibid, at p. 191.
*° Yogendra Singh, Social Change in India (Har Anand Publications, New Delhi
1993) at p. 113.
6 Ibid, at p. 114.
Conclusions
Se
ec 125
change with humanist approach became the national ideology. The
legal profession began to cherish social ideology of secularism and
egalitarian principles. The factors of communal tolerance, tribal devel-
opment, linguistic harmony and national integration are also traced in
social processes.” Collective participation of people, interdependence
of groups, promotion of social mobility of the disadvantaged sections,
and creative role of the voluntary organisations are regarded as essen-
tial in the nation-building task.»® How law can handle the issue of co-
existence of tradition and modernity will have to be discussed in the
present work with reference to the formation and application policies
regarding factors of multiculturalism, gender justice, removal of caste
disabilities, reforms in family law, economic processes and grass root
democratic institutions.
2.6 Conclusions
India has inherited the fruit of the patient effort of generations, and
experienced the following important lessons in the matter of law-soci-
ety interaction:
First, the indigenous and thoughtful ideas of justice, welfare and
human rights and the active communitarian institutions make it clear
that law’s concern for social happiness and reform was natural out-
come of social process, and not something superimposed from outside.
Collectivism that worked at the grass root level had the dynamism of
combating human misery. However, reference to elite thoughts and
positive cultural ethos does not suggest that the ideals were fully prac-
ticed nor is it made to overemphasise religious overtones. The exist-
ence of these ideals as benchmarks to question the merit of deviant
practices is a prominent attainment of a mature culture. In the modern
period, evolution of democratic institution and organising of freedom
movement have reinforced collective competence for social and eco-
nomic reforms.
Second, India was destined to become a multicultural society
because of introduction or inclusion of various sections of people hav-
ing different religions, languages and ethnic origin. The long tradition
of harmonious society and of cooperation that could be built in course
of history is a valuable heritage for the modern times. The imperative
for identity protection is a hint for appropriate legal policy.
Third, balancing between continuity and change is a product of
history. The positive dimensions of culture continue to nourish the
social efforts even in the task of repudiating stale and old practices or
7 Tbid, at pp. 152-90.

58 Ibid, at p. 160.
126 Historical and teen discourse
sociological ua
e
cs e bigioE eA ed ree eS
institutions. Society’s attitude towards change, resilience and consoli-
dation has been exhibited in various stages of historical development.
Fourth, the introduction and reception of English Law has brought
modernisation with its both good and evil features. The confluence of
the legal minds of Anglo-Saxon jurisprudence and that of India has
added to the ever-growing expansion of the Indian legal thoughts and
practice.*® The challenges of keeping balance between continuity and
change or state intervention and social acceptance have been faced in
this realm as well.
Finally, the economic exploitations arising from colonial rule, the
practice of feudalism and problem of poverty have necessitated activ-
ist role of the state. The social evils of gender and caste discrimina-
tions have historical roots, which cannot be ignored by law. Social
response to these problems through voluntary action and efforts of
social reformers is substantial.
59 The common law tradition introduced in India by the British had reflected
essential features of the Anglo-Saxon system and paved the way for growth within
the system that was donned by leading role of judge. Primarily based on fair
procedural law and aiming at rendering justice, common law had developed on the
basis of community’s participation (jury system), lawyer’s law analysis, precedents,
commentaries and innovative ideas satisfying the mercantile community (H Patrick
Glenn, Legal Traditions of the World, 3rd Edn., Oxford University Press, Oxford 2007 at
pp. 226-49). The writ remedies and the principles relating to contracts, torts, crimes
and other spheres of legal regime developed in course of centuries had made common
law a mature albeit rigid system. The British judges in India applied these principles
to fill the gap ignoring the importance of native law (Hindu Law and Muslim Law).
Common law maxims became part of the law of India. “Wherever is right, there is
a remedy”, “injury of legal interest is actionable whereas mere economic loss is not
remediable”, “adjudication should follow contest of claims”, “person volunteering to
venture takes his own risk”, “possession is nine points of law”, “injury arising from
co-worker’s negligence is not remediable by employer”, “non-malicious combination
putting forward unequal competition is not remediable”, “persons in custody of
unusual resource or risky substance are liable to compensate the loss arising from
the escape of it”, “act of God is not remediable”, parties to the contract should have
consensus ad idem”, “let the buyer beware”, “contracts of utmost faith shall receive
due respect”, “only combination of guilty mind and wrongful conduct gives rise to
criminal liability”, “unjust enrichment shall be remedied” “manufacturer is liable to
the ultimate consumer for supply of defective goods” etc. are some of the common law
maxims that were received in India. Although each of these maxims was developed
with a distinct vision of justice and fair play, the overall thrust of these maxims served
the interests of employers or landlords or the economically powerful. In contrast,
many of the Hindu Law principles were oriented to protect and interests of vulnerable,
for example, workers, children, consumers, debtors, or victims of adverse possession.
Replacing of these by common law had adverse impact upon the interests of common
masses. Overcoming of this problem required deliberate efforts for reform in course
of time.
CHAPTER 3
EE EE Pere ree hee re ee er)eye) eee ee ee
ALTERNATIVES TO LEGAL STRATEGY:

GANDHISM, SARVODAYA,
MARXISM AND NAXALISM
3.1 Introduction
Law is not the only instrument to usher in social transformation.

Education, consensus by negotiation and convincing, voluntary action,
public opinion, principles of morality, concerted efforts and social
movements form important non-legal instruments that herald social
transformation in civilised systems. It is said, social movements are
essentially related to social change and therefore to the social struc-
ture.’ They have consequences upon social structure, and are also prod-
ucts of the same. If the social structure inclines towards peace, justice
and harmony, social changes of desirable type will ensue. Sometimes,
application of force by voluntary violent groups is put forward as
justification to bring revolutionary changes, arguing that ends jus-
tify means. But democracy eschews bloodshed except for securing its
own survival. India has embraced and built the democratic values on
stable footing. Transparent, participative and dependable procedure
for social change through democratic means is well established in the
atmosphere of constitutional order. But the fear of using undesirable
means of cult of violence to achieve the desirable goal still haunts with
exhibition of inhuman consequence. Practical relevance and desirabil-
ity of alternative approaches are to be understood in the light of our
basic commitment to constitutional ideology and methods.
in North
1 Partha N. Mukherji, “Naxalbari Movement and the Peasant Movement
Bengal” in M.S.A. Rao, Social Movements in India (Manohar, New Delhi 2000) at pp. 17-
18.
128
DP
e 8 e
Alternatives to Legal Strategy
Conformity of Gandhism and Sarvodaya with the enduring consti-

tutional values faces difficulties in heightening the social system to the
levels of moral perfection. In contrast to this, the practically achievable
naxalite objectives through sheer threat, terrorism and violence defy
values of humanism and shake the foundations of political system.
The prevalence of Naxalism as a movement exhibits the syndrome of
social imbalance. It is a paradox that gentle means of persuasion in
the ideals of Gandhism and Sarvodaya suffer cold reception while the
weapon of violence is held in awe and commands obedience. In the
context of social transformation, it is to be studied how the desirable
and compatible strategies should be integrated to the legal techniques
and the problems of violent movement should be effectively faced by
the legal order. The modalities of social change that these alternative
means suggest are also instructive about the nuances and niceties of
law-society interaction. Rule of law (kanoon), compassion (karuna) and
violence (katal) are regarded as alternative paths to social revolution’,
a choice amidst which is to be made with a foresight about the life
supporting, long-lasting values that ought to motivate us. While all
these methods constitute the diverse efforts of redressing the inequi-
table and unjust social order or tyranny of the strong over the weak,
the compassion-based approach linked with truth and non-violence
in Gandhism and Sarvodaya has distinctive strategy of resisting evil
without deviating from the fundamentals of moral law.
3.2 Gandhism
3.2.1 General
Mahatma Gandhi, the father of modern India, developed coherent
thoughts about social transformation through integrated development
in various spheres of social life inclusive of moral, political, economic,
individual and collective precepts and actions. Gandhiji said, “I can
however indicate no royal road for bringing about social revolution
except that we should represent it in every detail of our own lives...Try
again and again, never say that you are defeated, never say that the
people are no good. If you meet with no response, think that the fail-
ure is yours and not theirs.” He had a vision that through social revo-
lution we should make India happier albeit the fact that social revolu-
> Jayaprakash Narayan, Towards Total Revolution, Search for an Ideology, Vol. 1
(Popular Prakashan, Bombay 1978) at p. 227. “A social revolution is a fundamental
change in property relationships, in respect of ownership, management and disposal
of profits. It implies end of exploitation, employer-employee relationship and socio-
economic inequality.”
> Harijan, 25-7-1936.
Gandhism
e ee ti‘ 129
tion is amuch more difficult thing to achieve than political revolution.
By “revolution” he meant that society has to change from its roots and
its foundation not merely outwardly but by fundamental change? As
a man of action, and devoted to the goal of freeing the human beings
from the exploitative burdens and get rid of the system that produce
poverty and misery®, he made marvellous contribution to the meth-
odology of reform, if not a systematic body of philosophy that could
be called Gandhism. He viewed life as an organic whole and synthe-
sised the new with the old drawing all support from Upanishads and
Bhagavadgita, from bhakti cults and comparative study of religions? He
laid emphasis on character formation at the individual and community
level to receive the egalitarian values.’ He thought that emancipation
of women from social ties and oppressions, good education to children
to internalise the values of equal citizenship without exploitation, and
inculcation in all the approaches of self-reliance, truth, non-violence
and respect for all religions and communities would bring together a
social order of amore acceptable nature. Thus, he tried to approach the
issue of social transformation from different angles simultaneously.
Without pretensions of high intellect, he spoke in the voice of common
man. He regarded that people could not demand justice from others
unless they did justice to those who were suffering at their hands.’ He
said, “Justice and equity mean the establishment of just and equita-
ble relations between capital and labour, between the landlord and
the tenant.””° He visualised harmony between individual liberty and
social interest, “Unrestricted individualism is the law of the beast of
the jungle...Willing submission to social restraint for the sake of the
social well-being of the whole society enriches both the individual and
the society of which he is a member.”
4 Ibid.
5 Jayaprakash Narayan, “Gandhi and Social Revolution Gandhi Marg” (1966) at
p. 244; see also, Rabindra Chaudhary, “Mahatma Gandhi and Social Change”, Vol. 22(3)
(Gandhi Marg 2000) at p. 345.
6 Jawaharlal Nehru, Discovery of India (JNM Funds and Oxford University Press,
New Delhi 1946, 1989) at p. 358.
7 J.B. Kripalani, Gandhi: His Life and Thought (Publications Division, Government of
India, New Delhi 1970) at pp. 316-18.
without
8 The seven social sins to be eschewed according to him were, politics
morality, wealth without work, pleasure without
principles, commerce without
worship
conscience, knowledge without character, science without humanity, and
aswamy, Gandhiji’s Concept of Value-Bas ed Living
without sacrifice. See, K.S. Narayan
(Gandhi Centre Bharatiya Vidya Bhavan, Bangalor e 1997) at pp: 42-62.
Hind Swaraj, at p. 17. See
9 “ we who seek justice will have to do justice to others.”
olitical Thought”, Vol. 22(2)
also, Nilanjana Jain, “The idea of Justice in Gandhi's Socio-P
(Gandhi Marg 2001) at p. 178.
Young India, 28-5-1931.
" Harijan, May 1939.
130 Alternatives to Legal Strategy
a a ig cn en
3.2.2 The Change of Heart Theory
One unique contribution of Gandhiji to the technique of social trans-
formation is the change of heart theory. Gandhiji wanted to establish
in India a democratic order free from political, economic and social
exploitation in addition to the removal of foreign rule. In Hind Swaraj
he propounded that the British conquer of India was due to inner fail-
ure of the Indians to offer resistance through better social organisa-
tion; that the path of getting freedom consisted in withdrawal of coop-
eration with the exploiter; and that true freedom for Indians consisted
in rejection of the western civilisation and revival of ancient Indian
system of society, economy and polity.* Constructive programme that
he devised for this purpose was resistance to political and inter-group
tyranny and injustice. This was through the technique of change of
heart of the oppressor and reinforcement of strength in the oppressed.
Both these factors ought to take place simultaneously in order to bring
the social change." To put it in a formula:
COS SEHHSEE ESHEETS HHESESEEEEEOEHS = SHHHHHHHEHESHEHEHETHEHHSHHEHHEEETEHHHS == SHLHHHHHHHHHHSEHEEESEHEEHEE ESET EE
eee eee eee sees eee HEE ESTEE EESEES SHEFebeesseEeseeHEFEEHHEETHEHESEHES +=«$§ FHHEHEHEEHESHESES EHH ESE HEHE ESEHEES
His key concepts of trusteeship, satyagraha, amelioration of Harijans

and women and gram swaraj were manifestations of this binary con-
cept as much as this policy was central to freedom movement against
the British.
The change of heart theory propounded by Gandhiji contemplated
that by conscious efforts—both individual and social—the habits and
nature of man should be subjected to attitudinal changes towards desir-
able goals. Proper education, persuasion, negotiation and conciliation
were to be used to bring behavioural transformation. Since it changes
the human personality itself, both head and heart, he believed that
the change of heart policy, by banishing greed and filling human love,
was a powerful instrument of social transformation. It would dimin-
ish the force of arm and sense of greed, and alter the social structure.
Realisation about one’s own evil actions towards others and changing
of his attitude or behaviour render the deviant, a useful citizen. “Love
compels, it does not coerce” Gandhiji viewed. The pressure of pub-
lic opinion, force of circumstances, education and legislation should
operate together to bring such attitudinal change. Integration of more
than 500 princely states with the Indian Union under the leadership
M.K. Gandhi, Hind Swaraj, at p. 6.
J.B. Kripalani, Gandhi: His Life & Thought (Publications Division, Government of
India, New Delhi 1970) n. 7 at p. 353.
“ R.B. Upadhyaya, Social Responsibility ofBusiness and Trusteeship Theory ofMahatma
Gandhi (Sterling Publishers (P) Ltd., New Delhi 1976) at p. 188.
Ibid.
Gandhism rar
olan nie senile SS an rrr
of Sardar Vallabhai Patel found practical application of this phenom-

enon. Many Princes welcomed the integration as a process of joining
the main stream and quitting the ivory towers. Change of heart theory
is quite popular in the modern techniques of industrial relations and
business management. Change of heart could be persuaded through
the tool of non cooperation. Once cooperation is withdrawn, exploit-
ers and tyrants will find it difficult to perpetrate their iniquity and
injustice.
The second factor involved in Gandhian notion of change is enhanc-
ing the strength of the affected class. “All exploitation is based on coop-
eration, willing or unwilling, of the exploited”, Gandhiji observed.”
Injustice or tyranny occurs when the victims hug the chains of exploi-
tation, out of their mental slavery and timidity of soul or when exploi-
tation is imposed through oppression against the helpless and unwill-
ing community. Exploitation could be ended only when the affected
class realises the pangs of exploitation, muster strength, consolidate
energy by uniting with others and refuse to cooperate with the evil.
He often remarked that those behaved like worms invited others to
trample upon them, and it was coward who created the bully. The vic-
tims of injustice were complicit in their oppression and never wholly
innocent."® Gandhiji’s techniques of satyagraha or non-cooperation and
civil disobedience through total non-violence envisaged untiring sup-
port and energy from the affected community. Satyagraha connoted
organised use of truth, non-violence and purity of means. The virtue
of fearlessness that satyagrahi ought to develop gives him inner lib-
erty. Liberty and justice ought to be asserted through eternal vigilance
and the policy of ‘ustice to others. Gandhiji said, “Non violence is the
greatest force of mankind. It is mightier than the mightiest weapon of
destruction devised by the ingenuity cf man...Every murder or other
injury, no matter for what cause, committed or inflicted on another is
a crime against humanity.” The policy of righteous resistance against
16 Ibid. Fateh Sinhrao Gaekwad considers liquidation of princely state system as a

watershed development because of voluntary acceptance by the princes.
7 R.B. Upadhyaya, supra, n. 14. “However much we may detest admitting it, the
fact remains that there would be no exploitation if people refuse to obey the exploiter.
But self comes in and we hug the chains that bind us.” J.B. Kripalani, supra, n. 7 at
p. 353 views, “Injustice and tyranny today, more than ever before, depend upon the
conscious or unconscious, voluntary or forced cooperation of the victims.”
18 Bhikhu Parekh, “Gandhi, Poverty Eradication and People’s Empowerment” in
at pp. 139,
Anand Sharma (Ed.), Gandhian Way (Academic Foundation, New Delhi 2007)
grew out of and sustaine d by fear
146. “For Gandhi the power of the dominant groups
of powerles sness among its victims
and was most effective when it generated a sense
and paralysed them into inaction.” WOH. fant
Government of
'° J.B. Kripalani, Gandhi: His Life & Thought (Publications Division,
India, New Delhi 1970) at p. 350.
182 Alternatives ato Legal Strategy
es sd Se Sha ge la a ee
the evil should be the inspiring spirit for efforts to attain justice.
Gandhiji in his “plea for severest penalty upon conviction for sedition”
gives the message of greatest importance for non-violent struggle for
social transformation:
“In my humble opinion, non cooperation with evil is as much as duty
as is cooperation with good. But in the past, non cooperation has been
deliberately expressed in violence to the evildoer. I am endeavouring to
show to my countrymen that violent non cooperation only multiplies
evil and that as evil can only be sustained by violence, withdrawal of
support of evil requires complete abstinence from violence. Non vio-
lence implies voluntary submission to the penalty for non cooperation
with evil.””°
The plea depicted how he‘cooperated with State policy for good meas-
ures and was compelled to protest evil laws like Rowlatt Act, evil
deeds like economic exploitation rendering the semi-starved masses
into sinking lifelessness and evil motives like dishonesty of not keep-
ing the promises. He said, “Non-violence is the first article of my
faith. It is also the last article of my creed.”* The distinction he makes
between just and unjust law on the basis of higher principles of moral-
ity is convincing when he propounds, “When a law itself is immoral
and is sought to be enforced by the governmental authority, it becomes
necessary to test our faith in truth, justice and dharma and defy the
immoral law.” Natural law ideology of superiority of higher law over
man-made law has been put forward by Gandhiji in this context with
practical example and in more succinct way.
The methods of strengthening the exploited or affected class con-
sisted in arousing of social consciousness, continuing education and
maintaining the unity of the exploited. Social organisations, political
parties and trade unions play crucial role in arousing the social con-
sciousness. Gandhiji regarded independence from foreign political rule
as a positive capacity to build up indigenous local community aspiring
for excellence in ancient values. In Hind Swaraj he wrote, “If a man will
only realise that it is unmanly to obey laws that are unjust, no man’s
tyranny will enslave him. This is the key to self-rule or home rule.”3
*® M.K. Gandhi, “A Plea for the severest penalty upon his conviction for sedition”,
in Appendix I-VIII S, Radhakrishnan (Ed.), Mahatma Gandhi (Jaico, Bombay 1956, 1977)
at p. 417; Louis Fischer, The Life of Mahatma Gandhi (Bharatiya Vidyabhavan, Bombay
1998) at pp. 256-57.
1 Tbid.
” “The law itself in this country has been used to serve the foreign exploiter . . .
In ninety nine cases out of a hundred, justice has been denied to Indians as against
Europeans in the Courts of India...In my opinion, the administration of the law is
prostituted, consciously or unconsciously, for the benefit of the exploiter.” (Trial
Speech)
3 Hind Swaraj, at p. 6.
Gandhism 133
a
He also said, “Real Swaraj ‘will’ come not by acquisition of authority
by a few but by the acquisition of the capacity by all to resist authority
when it is abused...By educating the masses to a sense of their capacity
to regulate and control authority.”
3.2.3 Shaping the Indian society

About the question what would be the shape of Indian society and civ-
ilisation after independence, he reasoned in Hind Swaraj that India will
not be really free unless it rejected western civilisation and revived its
own ancient system of society, economy and polity. He was against
machine-based industrialisation resulting in competition, rivalry and
violence.?5
The change mechanism Gandhiji visualised was associated with
democracy, adult franchise and laws based on people’s aspiration. He
considered legislation as an important instrument for bringing social
transformation and for equalising conditions of free India. Gandhiji’s
speech at Round Table Conference in 1931 refers to the importance of
progressive legislations in free India. He said:
“IT have in my mind many things that I would have to do in order to
equalise conditions. I am afraid that for years to come to India would
be engaged in passing legislation in order to raise the downtrodden, the
fallen, from the more into which they have been sunk by the capitalists,
by the landlords, by the so-called higher classes, and then subsequently
and scientifically, by the British rulers. If we are to lift these people from
the mores, then it would be the bounden duty of the National Govern-
ment of India, in order to set its house in order, continually to give pref-
erence to these people and even free them from burdens under which
they are being crushed.’
Thus, he believed in rule of law system to effectuate social changes in
the long run as an integral part of the twin concepts of change of heart
of the oppressor and empowerment of the oppressed.” The special
advantage of this change of heart theory is that both the exploiters and
the exploited undergo transformation and contribute to the society
through good citizenship. He laid great stress on propriety of means
to attain right ends. He asserted that as the means so the end. Change
% Anand Hingorani (Ed.), My Picture of Free India, at p. 87.

2 Ibid. See also, Tara Chand, History of the Freedom Movement in India, Vol. Il
at p. 211.
(Publications Division, Government of India, New Delhi 1972, 1992)
. .
2% RB. Upadhyaya, supra, n. 14 at p. 218.
1n whose making
2 “An India in which the poorest shall feel that it is their country
shall in perfect
live
they have an effective voice, an India which all the communities or the
of untouch ability
harmony. There can be no room in such an India for the curse
the same rights as men.
curse of intoxicating drinks and drugs. Women will enjoy
M.K. Gandhi, India of My Dreams, at pp. 9-10.
to Legal Strategy
134
OR A S 8 centsesinBrred
Alternativ pnneant se eh
of heart theory was perfectly matching with change for social justice
through love, persuasion and voluntarism, and hence pragmatic in
addition to be morally sound.** While Gandhian change-mechanism
had these core concepts and procedures, his scintillating thoughts on
political system, economic development, amelioration of untouchables,
protection of women, religious tolerance and Gram Swaraj reflected
application of the change theory coupled with justice to these specific
areas. It is now appropriate to discuss these terrains of thoughts from
the angle of social transformation.
The uniqueness of Gandhiji’s contribution towards better polity is
depicted by J.B. Kripalani as follows, “At no time throughout history,
as we know it, have fundamental moral values, such as truth, justice,
brotherhood of man and non-violence, been applied or even recog-
nised as valid in men’s relations in the political field and more espe-
cially in the mutual dealings of organised groups and nations.” In a
genuine democracy the power holders and people will observe better
standard of conduct. As India lives in the villages, government of free
India should rest on the foundations of the revitalised village pancha-
yats, he reasoned. Emphasising the need for vibrant public opinion to
control the power holder, he said, “When the subjects are watching, a
prince is entirely dependent on them for his status. When the subjects
are overtaken by sleepy indifference, there is every possibility that the
prince will cease to function as a protector and become an oppressor
instead.”2° Gandhiji believed in participative democracy and the con-
cept of shared authority with various levels of government. He linked
trusteeship concept with state power and favoured ceiling on income
and property." Paternalism in business or government depended
on the moral sense of the powerful and degraded the recipient, he
argued,
3.2.4 Gandhian economics

Gandhian economics laid clear focus on philosophy and practice of
simple life, satisfaction of basic needs of all, economic self-reliance
and non-concentration of wealth. Gandhiji visualised that everybody
should be able to get sufficient work to enable him to make the two
ends meet, an ideal that could be realised by enabling the masses to
have control over means of production of the elementary necessaries
of life. Their monopolisation by any country, nation or group of per-
* Rabindra Choudhary, “Mahatma Gandhi and Social Change” Vol. 22(3) (Gandhi
Marg 2000) at pp. 345-49.
” J.B. Kripalani, at p. 360.
* Arun Shourie, “Reflections” (1978) 194 Seminar 32.
*' Harijan, 31-3-1946.
Gandhism
$35
seiasieiakaieameemmsae a
sons would be unjust," “The extension of the law of non-violence in
the domain of economics means nothing less than the introduction of
moral values as a factor to be considered in international commerce.”
A mindset of austerity to limit multiplicity of wants that deaden the
inner life was essential to economic equality and social harmony. He
said, “Nature produces enough for our wants from day to day, and
if only everybody took enough for himself and nothing more, there
would be no pauperism in this world.” His trusteeship theory put
the rich and the employers to the position of protectors of the interests
of the poor and the workers. The character of production would be
determined by social necessity, and not by personal whim or greed35
Swadeshi movement and revival of cottage and village industries had
potentiality of rebuilding economic independence. While he was not
against industrial progress, he condemned the craze for labour saving
machineries as they drove the people to unemployment and starvation
deaths. He said, “Whatever the mechanical age may do, it will never
give employment to the millions whom the wholesale introduction of
power machinery now displaces.”° The relevance of this wisdom to
the post-liberal global economy that experiences job losses can hardly
be disputed.
Gandhiji’s concept of bread labour?” enhanced dignity of every work,
stood for economic justice and contemplated self-reliance. His notion
of decentralised economy abolished the conflict between capital and
labour, assured minimum standard of living for all, met the basic
needs of everyone, and brought simplicity2* Discarding of superflu-
ous wants through voluntary choice led to simple, freer, happier and
more efficient life. His trusteeship theory stipulated that the owner
of property, landlords and industrialists alike, while retaining their
title to the property, should of their own free will resolve to regard
themselves as mere trustees of the property on behalf of the society.
This meant a power-shift from individual to the community; reliance
on the concept of non-stealth; and a peaceful and constructive revolu-
tion in redistribution of resources2® Trusteeship stood for distributive
2 J.B. Kripalani, Gandhi: His Life & Thought (Publications Division, Government of
India, New Delhi 1970) at pp. 7, 368.
3 Young India, 26-10-1924, at p. 421.
4 J.B. Kripalani, at p. 369; Complete Works of Gandhiji, Vol. XXXVI at p. 141.
3 Young India, 16-4-1931.
% [bid, at p. 375.
every
37 “Every man and woman must work in order to live. The idea is that
of Gandhijt, Vol.
healthy individual must labour enough for his food...” Complete Works
LXXXVIIL, at p. 99. ; pose
38 Nilanjan Jain, supra, n. 9 at pp. lol—-o-.
e Se ee n. is MK. Gandhi, My Theory of Trusteeship (Ed.), Anand
general.
T. Hingorani (Bharatiya Vidyabhavan, Mumbai 1998) in
136 Alternatives toc Legal Strategy
Fen a m
justice, economic equality and elimination of exploitation. It provided a
means of transforming the present capitalist order of society into egal-
itarian one. It did not recognise private ownership of property except
to the extent permitted by society for its own welfare. Gandhiji’s basic
assumption that everything belonged to God and was derived from
God had a logical consequence of putting back to God’s people that
exceeded one’s proportionate portion.” He expressed dissatisfaction
with a position where men become slaves of ancestral property that
kills enterprise, feeds passion and pushes to idleness and luxury.”
3.2.5 Eradication of untouchability

Eradication of untouchability occupied the foremost place in the
Gandhian agenda of social reforms. He considered untoucnability as
cruel and inhuman institution, born out of poverty of the oppressed
and arrogance of the advanced, and going against the spirit of democ-
racy, which makes no distinction among citizens. Holding that the
initiative for eradication of untouchability should come from the
higher caste people, he said, “To remove untouchability is a penance
that caste Hindus owe to Hinduism and to themselves...It is our arro-
gance which blinds us, superior Hindus, to our own blemishes and
which magnifies those of our own downtrodden brethren whom we
have suppressed and whom we kept under suppression.4? On the
question of separate electorate for the depressed classes proposed by
the British, Gandhiji agitated through fast in 1932. Holding that the fast
was ultimatum against moral weakness of the society, Rabindranath
Tagore described, “The penance which Mahatmaji has taken upon
himself is not a ritual but a message to all India and to the world...No
civilised society can thrive upon victims whose humanity has been
permanently mutilated...We insult our own humanity by insulting
man where he is helpless and where he is not of our own kin.”
In addition to blocking the divisive policy and accommodating spe-
cial claim of the depressed classes, the fast operated as a shock treat-
ment. Famous temples at various parts of India were thrown open to
4° Harijan, 2-1-1937. “All land belong to Gopal (God), where then is the boundary
ine?”
41 Young India, 17-10-1929.
® J.B. Kripalani, supra, n. 7 at p. 383.
* Ibid, at p. 384. He also said, “Religions like nations are being weighed in the
balance. God’s grace and revelation are the monopoly of no race or nation. They
descend equally upon all who wait upon God. That religion and that nation will
be blotted out from the face of the earth which pins its faith to injustice, untruth or
violence.”
** See, Louis Fischer, The Life of Mahatma Gandhi (Bharatiya Vidyabhavan, Mumbai
1998) at p. 399.
es oe
untouchables voluntarily by the Hindus. Inter-dining with untouch-
ables, sharing of public facilities like wells, streets and schools with
them, and abandonment of discriminatory policies by resort to reso-
lutions by local bodies set a new wave of thinking for reforms.‘ The
Yeravada pact, which said, “No one shall be regarded as untouchable
by reason of his birth” was supported by signature campaigns. Louis
Fischer writes, “It marked a religious reformation, a psychological
revolution. Hinduism was purging itself of a millennial sickness. The
mass purified itself in practice. It was good for India’s moral health.
The perpetuation of untouchability would have poisoned India’s
soul...’4° Gandhiji’s epic fast was instrumental in changing the hearts
of people who practiced untouchability. The task of strengthening the
victims consisted in formation of Harijan Sevak Sangh, which was to
work for the removal of all of their disabilities; wide-scale propaganda
against the practice; accommodation of untouchables in Ashram; and
encouragement to inter-caste marriages. Simultaneous upholding of
freedom and equality took place with temple entry movement, about
which Gandhiji said, “Temple entry is the one spiritual act that would
constitute the message of freedom to the ‘untouchables’ and assure
them that they are not outcastes before God...There is none that is
high and none that is low, all are absolutely equal, equal because all
are the creatures of that Creator.” Thus Gandhiji furthered the anti
untouchability mission initiated by Buddha and carried forward by
Basaveshwara, Kabir and Nanak by focusing on human dignity and
equality.4* As Bhikhu Parekh estimated:
“Gandhi's contribution was considerable and greater than that of any
other Indian leader. No one before him had mounted a frontal attack on
untouchability and launched a vigorous national campaign...By a skil-
ful combination of moral, religious and political appeals and personal
example, he shamed and mobilised the Hindu masses, stirred their con-
sciences, awakened their sense of responsibility, and created a power-
ful body of public opinion demanding and willing to carry through an
anti-untouchability programme...Gandhi’s contribution, however, had
its limits. Though he discredited and undermined the intellectual and
moral basis of untouchability, he failed to shake its social, economic and
political roots.”
4 Ibid, at p. 409.
4 Ibid, at p. 411. one)
47 JB. Kripalani, Gandhi: His Life & Thought (Publica tions Division , Government of
India, New Delhi 1970) at p. 385.
and Modernity-Reflections
48 K. Raghavendra Rao, “Gandhi, Western Civilisation
of 21st Century (Mittal
of an Old Gandhi Watcher” in Anil Dutta Mishra, Challenges RT
ni, supra, n. 7 at p. 387. aR O
Publications New Delhi 2003) at pp. 67, 70. J.B. Kripala s Politica l
: An Analysi s of Gandhi'
4 Bhikhu Parekh, Colonialism, Tradition and Reform
1999) at p. 266.
Discourse (Revised Ed. Sage Publications, New Delhi
Parekh viewed that the failure is due to both non-involvement of the

untouchables in the eradication process and difficulty in bringing
change of heart amidst the orthodoxy.
3.2.6 Communal harmony

Gandhiji’s change of heart theory was the principal approach to the
issue of communal harmony. With an in-depth comparative study of
religions, he had an unfailing faith in bringing into the open surface
love of humanity, which was the central proposition of all religions.
He said, “Religions are different roads converging upon the same
point. What does it matter that we take different roads, so long as we
reach the same goal? ...When the symbol is made into a fetish and an
instrument of proving superiority of one’s religion over others’, it is
fit only to be discarded.”*° Common factor of all religions is non-vio-
lence. The Hindu-Muslim unity of his conception was not a temporary
strategy of freedom struggle but an everlasting medicine for healthy
national life>" He preached mutual forbearance of violence and incul-
cation of sense of toleration and accommodation. He said, “The unity
we desire will last only if we cultivate a yielding and charitable dis-
position towards one another. The cow is as dear as life to a Hindu;
the Mussalman should, therefore, voluntarily accommodate his Hindu
brother. Silence at his prayer is a precious thing for a Mussalman. Every
Hindu should voluntarily respect his Mussalman brother’s sentiment.
This, however, is a counsel of perfection.” He favoured resolution of
communal problems exclusively by the local panchayat on the basis
of give and take approach fully backed by a cultivated public opin-
ion. He said, “Looking at all religions with an equal eye, we would
not only hesitate, but would think it our duty to blend with our faith
every acceptable feature of other faiths.”3 For him religion itself was
action, a dynamic pursuit of ever expanding perspective of truth. His
conception of multiculturalism visualised, “India is a big country, a
big nation composed of different cultures, which are tending to blend
with one another, each complementing the rest.”54
3.2.7. Amelioration of women

Gandhiji’s thoughts and programmes for amelioration of women form
another instance of applying the change of heart and empowerment
* J.B. Kripalani, supra, n. 7 at p.:339,
*! Hindu-Muslim unity is a creed and not a policy, he said. Young India, 16-3-1922.
* Young India, 11-5-1921; M.K. Gandhi, The Hindu-Muslim Unity (Ed.), Anand T.
Hingorani (Bharatiya Vidyabhavan, Mumbai 1998) at p. 12.
*° MLK. Gandhi, supra, n. 52 at pp. 136-37.
* Ibid, at p. 118.
Gandhism
S EHSE E
Se S 139
theory. He brought new dimension to the debate on women’s ques-
tion not only by preaching against social evils and injustices inflicted
against women in the name of religion, tradition, and law but also by
treating them on the footing of perfect equality with men. Inviting
and involving them into freedom movement was one method of free-
ing them from the traditional shackles. He said, “The women of India
should have as much share in winning swaraj as men. Probably, in this
peaceful struggle, woman can outdistance man by many a mile...Let
it be man’s privilege to protect woman, but let no woman of India feel
helpless in the absence of man or in the event of his failing to perform
his duty of protecting her.”
Coming down heavily upon purdah system, he gave call to men
to abandon mistrust, imposition and sense of superiority and asked
women to assert their independent and equal spirit. “What we are doing
to our women, and what we are doing to the untouchables, recoils upon
our heads with force thousand times multiplied. It partly accounts for
our weakness, indecision, narrowness and helplessness. Let us, then,
tear down the purdah with one mighty effort.”°° Regarding eradica-
tion of dowry he had unique idea of emboldening brides and their
parents not to offer any dowry and persuading all bridegrooms and
their parents not to demand and accept dowry” Condemning pros-
titution as moral leprosy, he found fault in men who indulged in the
vice>* He criticised the custom of devadasi as shamefully perpetrated
in the name of God.® He favoured creation of public opinion as well as
legislation to remedy the social evils like child marriage and condem-
nation of widows. In his view, law alone cannot be effective in curing
popular evil, unless people are for such reforms through enlightened
public opinion.® Gandhiji said, “The roots of the evil lie much deeper
than most people realise. It lies in man’s greed of power and fame, and
deeper still, in mutual lust.”
3.2.8 Gram Swaraj

Gandhiji’s concept of gram swaraj stood for composite ideas of self-suffi-
ciency, cooperation and access to sanitation, health facilities, education,
® Young India, 15-12-1921; see also, M.K. Gandhi, The Role of Women (Ed.), Anand T.
Hingorani (Bharatiya Vidyabhavan, Mumbai 1964, 1998) at p. 233
% Young India, 3-2-1927. ae
57 He traces dowry to caste system and regionali sm, as these factors limit the
strong public opinion against dowry and eradicate
choices, and gives call to develop
caste system. Harijan, 23-5-1936. See also, Young India, 27-12-1928.
8 Young India, 16-4-1925.
Young India, 22-9-1927
” Young India, 26-8-1926.
61 Young India, 17-10-1929.
140 Altern to Legal Strategy
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a e
nal-
and cultural activities.2 At the individual level, perfection of perso
ity was to be aimed at by eschewing of the vices like liquor, womanis-
ing and gambling, and inculcating in oneself the virtues of less wants,
simple life and altruism. Speaking on Gandhism which believed in
revolution by non-violent mass action, Jayaprakash Narayan said, “A
real revolution is a revolution in the values of life. No law can effect
a transvaluation of values. It can be reflected in law once it has taken
place in the life of the people” Since law could not change the minds
and hearts of people, Gandhism emphasised direct recourse to people.
He said, “Gandhism does not concentrate on the capture of power, nor
depend on the power of the state. It goes direct to the people and help
them effect the revolution in their lives and in the life of the commu-
nity. Support from the state power would be assured once the power
of the people has been created”
There have been criticisms against Gandhism leveled by M.N. Roy
on the count that Gandhiji‘s condemnation of machine civilisation and
centralised modern economy was unrealistic and hence alienated the
industrialised world; that the introduction of religion into political and
public life made the primitive human knowledge to prevail over natu-
ral and scientific phenomenon, and hence was reactionary; that the
trusteeship doctrine was unnatural as it tried to bridge two mutually
conflicting classes merely on the basis of pious expectations; and that
the doctrine of correlations of means towards ends, while appropriate
for castigating corruption of public life, was not powerful enough to
dissuade the political parties from making recourse to unfair methods
of holding political power without actually serving the social interests
of people.® It is submitted, these criticisms are more relating to diffi-
culties inherent in moralist approach and society’s failure to make firm
political determination and to adequately prepare itself for the desired
change. Insofar as the content of humanism in Gandhian approach is
concerned, there could be no doubt that it is an excellent indigenous
thought projecting human welfare in all its dimensions.
On the whole, Gandhiji’s experiments with the social change the-
ory unified all the dimensions of life, both individual and collective,
yielded welcome fruits or at least showed the right path. Despite the
ne Harijan, 4-8-1946; see also, M.K. Gandhi, The Village Reconstruction (Ed.), Anand T.
Hingorani (Bharatiya Vidyabhavan, Mumbai 1964, 1998) in general.
®° Jayaprakash Narayan, Total Revolution, Vol. I (Popular Prakashan, Bombay 1978)
at p. 160; Jayaprakash Narayan, “Gandhi and Social Revolution” (Gandhi Marg 1966)
at p. 244.
Ibid, at p. 161.
° M.N. Roy, “Gandhism, Marxism, Humanism” in Verinder Grover, M.N. Roy,
Political Thinkers af Modern India, Vol. V (Deep & Deep Publications, New Delhi 1991)
at pp. 125-29.
Sarvodaya 141
eee ee ti‘(i‘CC
difficulties in changing the heart and empowering the weak, the path
is unquestionably sound.
3.3 Sarvodaya

Sarvodaya is a serious attempt to reorient the human mind and
resources to reconstruct human society on the pedestal of justice and
equity. Etymologically, Sarvodaya (Sarva + udaya) means rising of
all living beings. Negatively, it implies that nobody is excluded from
enjoying anything from others, while positively it connotes, participa-
tion of all people without distinction based on religion, caste, class, sex
and creed.® Total development of all the faculties—physical, mental
and spiritual—of all the human beings is also within its contempla-
tion. According to Vinoba Bhave, Sarvodaya connotes two things: first,
making all happy by removing suffering and poverty with the help
of the scientific knowledge; and second, establishing a world state full
with divinity, kindness and equality.” Quite distinct from utilitarian-
ism, which preaches for maximum happiness of maximum number of
people, and also laissez faire, which believes in survival of the fittest,
it represents welfare of all or “merger of oneself with the good of all”.®
Jayaprakash Narayan said, “ The Sarvodaya movement appears to me
as an instrument through which people’s energies could be activised,
liberated and mobilised for the task of reconstruction.”
For Gandhiji, it consisted in merger of one in all with self-sacrifice and
a selfless service. Holding that the principle of greatest good of great-
est number is heartless as it harms humanity, he proclaimed that the
dignified and human doctrine is the greatest good of all, which could
be attained by self-sacrifice””Apart from meeting the minimum mate-
rial needs, it aimed to develop the ethico-spiritual aspects of all peo-
ple. The seeds of Sarvodaya thoughts were gathered by Gandhiji from
the highly inspiring literature spread in the works of Ruskin, Tolstoy,
Thoreau and from the religious preaching consisted in Bhagavadgita,
Ishopanishad, Buddhism, Jainism and Islam. The central teachings of
Ruskin in Unto the Last that the good of the individual is contained
in the good of all; that all works had similar value as they yielded
6 Anil Dutta Mishra, “Sources and Implications of Sarvodaya in Gandhi's
Philosophy” Vol. 26(2) (Gandhi Marg 2004) at pp. 167-68. . . .
ry
‘7 K.M. Rathnam Chetty, Sarvodaya and Freedom: A Gandhian Appraisal (Discove
Publishing House, New Delhi).
6 Harijan, 13-2-1949.
(Popular Prakashan,
6 Jayaprakash Narayan, Total Revolution: Politics in India, Vol. II
Boinbay 1978) at p. 292.
” Dairy of Mahadev Desai, Vol. 1 at p. 149.
Strategy
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Alternativ
livelihood; and that life of labour is worth living inspired Gandhiji

in evolving this concept. Tolstoy's perception of bread labour—it is by
labour that one should earn one’s bread—and the wish that “ Let us get
off the shoulder of our neighbour” strengthened Gandhiji’s profound
faith in human dignity. While Bhagavadgita guided for Sarvabhutahita or
good of all beings, Ishopanishad propounded principles of equality and
fraternity, and revealed the ideas of renunciation, non-acquisitiveness,
non-exploitation and service to the society”? Buddhism, Jainism and
Islam stood for universal love, non-injury to others and promotion of
welfare of all7
Elaborating the concept, “as the means so the end”, Gandhiji said,
“There is no wall of separation between means and end. Indeed the
creator gives us control over means, none over end. Realisation of the
goal is in exact proportion to that of the means. This is a proportion
that admits of no exception.””* Sarvodaya believed in moral duty as a
means and spiritual freedom of all as the end. Through insistence on
moral perfection of all in their individual levels by adherence to eleven
vows of self-discipline, the Sarvodaya social order aimed to rebuild the
society “from bottom up”. Substitution of coercive state by social cohe-
sion through citizens; sense of social obligation; rural development
through cooperation, conservation and decentralisation; promotion of
cottage industries and handicrafts to substitute heavy machines; main-
tenance of village sufficiencv. bread labour and non-possession; dras-
tic reduction of craze for property, possession and power; and sharing
of power with equal participation constituted important factors in the
Sarvodaya agenda and aimed at “bottom up” development” Vinoba
Bhave did not find any conflict between Sarvodaya and Marxism as
both aimed at amelioration of the downtrodden”
Vinoba Bhave viewed that Sarvodaya stood for making all happy by
eliminating suffering from all and for bringing a world state based on
equality. According to him Sarvodaya political order presupposed that
(a) All individuals are born equal; (b) People are the custodians of the
supreme power in the Sate; (c) Political power shall be decentralised
both at the individual and village level; (d) All must train themselves
”' Leo Tolstoy, The Kingdom of God is Within You cited in K.M. Rathnam Chetty,
Sarvodaya & Freedom: A Gandhian Appraisal (Discovery Publishing House, New Delhi).
72 Ishopanishad, Shloka 1.
73 Anil Dutta Mishra, supra, n. 66 at p. 174; Buddhism preached universal love, non-
injury to living beings, sacrifice, purity of means, and renunciation for the sake of
promoting the welfare of all. In Jaina philosophy welfare of all forms and non-violence
form the core principle. Koran emphasised universal brotherhood.
* Young India, 17-7-1924.
” S.C. Gangal, Gandhian Thoughts and Techniques in Modern World (Criterion
Publication, New Delhi 1988) at pp. 158-59.
* V.D. Mahajan, Modern Indian Political Thought, at p. 754.
eer
for self-rule; (¢) All should believe in the divinity of every individual
and welfare of all?” His ten components of ideal polity consisted in:
(1) international fraternity; (i) conscious and hearty cooperation of
all inhabitants; (jii) identity of the good of the majority and minor-
ity; (‘v) orientation towards the universal and equal development of
all; (v) widest dispersion of political sovereignty; (vi) least government;
_ (vil) easiest availability of justice; (viii) least expenditure; (ix) lowest
external protection; and (x) universal, uninterrupted and objective
spread of knowledge”
The Sarvodaya economic order believed in freedom from material
bondage, self-sufficient villages, swadeshi and theory of trusteeship.
Gandhiji regarded that true economics stood for social justice, pro-
moted the good of all equally and was indispensable for decent life7?
Thus, essentially Sarvodaya connotes revolution by human approach
through proliferation of human values and virtues. Anil Dutt Misra
observes, “Sarvodaya, by laying stress on the goodness of human
nature, unity of mankind, service of man, application of moral prin-
ciples considered as valid for individuals for group life and interstate
relations, the non-violent process of change, social and economic equal-
ity, and by economic and political decentralisation, tries to resolve
the various kinds of tensions that disturb domestic and international
harmony.”*° In Sarvodaya, both the production and distribution are
decentralised unlike socialism where distribution alone is decentral-
ised. It is not opposed to productive machines and time-saving (trans-
port) machines but it insists on scrupulous use of them by looking to
its complementary character.™
Jayaprakash Narayan explains about Sarvodaya thus, “What we
desire is the establishment of a society in which there will be no ~
exploitation, there will be perfect equality and each individual will
have equal opportunities for development.”* He championed the
cause of people’s socialism through voluntary endeavour of people
rather than of state socialism.® Sarvodaya aspires for a society based
on truth and non-violence with full scope for development of indi-
viduals and groups without distinction based on caste and creed, as
Rajendra Prasad viewed.* In the background of social disunity due to
77 K.M. Rathnam Chetty, Sarvodaya & Freedom: A Gandhian Appraisal (Discovery

Publishing House, New Delhi) at p. 66. .
78 VP. Verma, The Political Philosophy of Mahatma Gandhi and Sarvodaya, at p. 295.
77 Harijan, 9-10-1937.
8 Anil Dutta Mishra, supra, n. 66 at p. 182.
| Nirmala Deshpande, infra, n. 92 at p. 63.
8 VD. Mahajan, supra, n. 76 at p. 569-70.
89 Jayaprakash Narayan, From Socialism to Sarvodaya, at p. 33.
4 V.D. Mahajan, at p. 570
144
ee Alternatives to Legal Strategy
EE
religious and regional differences that resulted in violence, Jayaprakash

Narayan emphasised on building up of peaceful democracy through
self-imposed discipline on the pedestal of equality as a task of sar-
vodaya movement.» Unlike Marxism and Socialism, which believed
in use of state force or class conflicts in bringing changes, in sarvo-
daya method of revolution the ends and means became one.” Keeping
the virus of communal violence away should be the programme that
shall penetrate every mind and home, he viewed. Vinobaji’s concept of
shanti sainiks (soldiers of peace committed to the cause of civic peace)
and programme of sarvodaya patra (daily contribution in earthen pot)
involving common masses in the task of non-violence and welfare
were to build up lok sammati or public opinion in favour of sarvodaya.*”
Jayaprakash Narayan considered establishing internal peace at all lev-
els and external peace with foreign countries through conscious efforts
of change of heart as instrumental for awakening of one and all.®
Organising the people’s movement from the grass roots of the soci-
ety was characteristic feature of their vision. That is why Jayapraksh
Narayan said, “Sarvodaya is not a power-oriented doctrine.”*? Values
of sarvodaya represented highest socialist values and got integrated
in world socialist thoughts as new ferments. It is through this ideology
that sarvodaya developed connections with politics.
As a continuation of Gandhian ideology and mission, Sarvodaya
Plan was drafted on 30 January 1950.” It intended to achieve a non-
violent, non-exploitative, cooperating society with equal opportunity
for all without distinction based on caste or class. It set forth the policy
of “tiller to be the owner of land”, redistribution of excessive land, and
formation of cooperative farms by pooling uneconomic holdings. It
contemplated protection of minimum wages and formation of mul-
tipurpose village cooperatives. It divided industries into centralised
ones and decentralised ones. The former was to be owned by auton-
omous corporations or cooperatives with workers’ participation in
management and the latter by individuals or corporations. Banking
and insurance ought to organise mass saving and control of invest-
ment. 50 per cent of the public revenue might be spent by the village
panchayats.
*° Jayaprakash Narayan, Total Revolution, Vol. II at pp. 292-93.

*° Jayaprakash Narayan, From Socialism to Sarvodaya, at pp. 182-06.
*” Ibid, at pp. 295-96.
8 Ibid, at pp. 297-00.
® Ibid, at p. 243.
*” Jayaprakash Narayan, Total Revolution, Vol. I at pp. 144-45.
Sarvodaya 145
ne ESE AN ES ee eet ad
3.3.2 Vinoba Bhave and Bhoodan movement

Vinobaji’s Bhcodan and Gramdan movements are to be understood as
specific schemes of sarvodaya movement. Bhoodan, according to him,
was not charity, but a realisation of right, a method of equitable dis-
tribution and an introduction of new values to the society.” It was an
experiment in non-violent economic revolution, a trusteeship theory
put into action. Vinoba told, “Through the medium of land donation
campaign, thoughts of the religion of humanity are taking roots in
the country. Feeding the hungry and giving water to the thirsty is the
real devotion to God.’ Donation had the dimension of equal divi-
sion and distribution and attitude of non-accumulation, he said, cit-
ing Shankaracharya and Buddha. Based on Ishopanishad and Tulsi
Ramayan he preached that all land belonged to the Lord. Preferring
the people-based scheme to state-sponsored approach in solving the
problem of rural poverty, he said, “Distribution of land is not our ulti-
mate goal, but means to the goal. The goal is social revolution. The
government is a servant. The people are the masters. I am trying to
convince the masters. If they are convinced, they will get their serv-
ants do the needful...The government is a bucket and people are the
well. If there is water in the well, then only can the bucket be filled.”
Acharya Vinoba, the Walking Saint of India, conducted series of
pilgrimages of joy, and kept on moving,” convincing the landowners
with cultural reasons to donate one sixth of their land to the landless.
In Telangana area, where communists claimed to have distributed
30,000 acres of land after two and a half years’ of violence resulting in
3000 murders and destruction of huge public property, Vinoba Bhave
activised Bhoodan movement and could collect 1.5 million acres of land.
In UP. he collected five lakh acres.” Bhoodan movement made moral
appeal to the landed class to donate land, and provoked the landless
not to cooperate with those landlords who did not donate. According
to one source, donation of land under bhoodan was 3.46 million acres
up to 1954, which made a slow progress reaching 4.26 million acres in
” Ibid, at p. 221.
% Nirmala Deshpande, Vinoba (Tr), S.A. Virkar (National Book Trust, New Delhi
2001) at p. 51.
% Ibid, at pp. 58-39.
% Ibid, at p. 39; “Ishvasyamidam sarvam yatkincha jagatkam jagat, Tena tyaktena
bhunjitha ma grdha kasyasiddhanam’; Tulsidas said, “Sabai bhoomi Gopalki”.
> Ibid, at p. 60. Tai OEP ses
who
% “Person who desires to live in Satya Yuga should keep moving since itis men
the Yuga that shapes men. Buddha told the Bhikkus that for
shape the yuga and not
— they pete
everybody’s happiness and benefit —bahujana hitaya bahujana sukhaya
man’s luck starts walking, he should keep sala an
keep moving. Since a walking
n. 92 at pp. 33, 13
moving. Caraiveti Caraiveti “; See, Nirmala Deshpande, supra,
Revolu tion, Vol. If at p. 212.
%” Jayaprakash Narayan, Total
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iT eeaa ee ea Re Sm MNT AL IO es PRN
Alternativ
1967 The land distributed was 1.19 million acres because of unfitness
of 44 per cent of land for cultivation and withdrawals by donors. The
bhoodan figure in states ranged between 21 lakh acres in Bihar and
211 acres in Jammu and Kashmir.” The contribution of Bihar, M.P., U.P,
and Rajastahan aggregated to 85 per cent of donated land. About the
role of law in the process of change contemplated in bhoodan move-
ment, Jayaprakash Narayan said, “Vinoba is not against legislation.
But he is impatient and does not want to wait till there is legislation.
He says he is clearing the road for legislation. There must be public
opinion created before a law can be made. It would come sooner if his
message spreads to every village.” The legal procedure for bhoodan
included owner’s declaration before Revenue Officer, registration of
gift deed under the Indian Registration Act, distribution of donated
land to the landless families by the Sarvodaya Mandal with title subject
to a condition not to sell, lease or mortgage. In order to help the poor
donees to cultivate the land, sampatti dan and sadhan dan (donation of
money and equipments) were also popularised by Vinoba. In addition
to resolving the problem of inequality in possession of land, bhoodan
was aspired to release and bring into play the moral and social forces
for the regeneration of society. Gramdan abolishes private proprietor-
ship of land, and recognises community ownership and cooperative
farming. The revival of the concept of common property resource by
community’s participatior, zather than by imposition from the top is
part of the process building the rural economy by sharing of owner-
ship, work and benefits." Socialism of sarvodaya was unique through
voluntary efforts.
3.3.3 Jayaprakash Narayan’s idea of total revolution

Jayaprakash Narayan conceived the idea of total revolution as a con-
tinuation of sarvodaya concept. By “total revolution” (TR) he meant
comprehensive revolution affecting all aspects of social life including
individual life.* The nature of TR was to be governed by the needs of
the time and situations obtaining in the country. He said, “There must
** Data given by Nanekar and Khandewale (1973) cited by Sudarshan Iyengar,

“Bhoodan Movement as a Gandhian Approach to Resource Distribution and
Development”, Vol. 28(4) (Gandhi Marg 2007) at pp. 401, 405-06.
” State of U.P. 4.35 lakhs, Rajasthan 4.32 lakhs, M.P. 4.05 lakhs, Andhra Pradesh 2
lakhs, Orissa 1.89 lakhs, Maharashtra 1.5 lakhs, Gujarat 1.03 lakhs, T.N. 80, 433,
Kerala
26,293, Karnataka 20,086, Assam 23, 105.
Ibid, at p. 213.
mM Sudarshan Iyengar, “Bhoodan Movement as a Gandhian Approach to Resource
Distribution and Development” Vol. 28(4) (Gandhi Marg 2007) at pp. 401-18.
"2 Jayaprakash Narayan, Total Revolution, Vol. IV (Popular Prakashan,
Bombay
1978) at p. 197.
Sarvodaya i
Be ee orale eeateniessedioatien eee rt ei a
be a total change in civic life, civic relationships, civic institutions, and

as we go beyond the sphere of civic life we enter larger spheres of
the state of the national life; we have innumerable spheres in which
the changes will have to be brought about.” TR involved, according
to him, a combination of seven revolutions-social, economic, politi-
cal, cultural, ideological or intellectual, educational and spiritual.1%
Because of the overlapping character of these factors the numbers
might vary. Economic revolution meant revolution in the structure
and institutions of society. Since man’s material and spiritual needs
were to be fulfilled within a moral framework, he suggested modest
living as the best solution at the individual level. At the village and city
level, moral-spiritual constraints arising from natural-environmental
framework were to operate on material development. The economic
framework for development that Jayaprakash Narayan contemplated
was one that aimed at human welfare; broad spread ownership of
industries and workers’ participation in management. Rural schools
were to cater to the requirements of the countryside development. Both
in 1936" and 1952'” he had conceived definite principles of socialised
economy suitable to the Indian circumstances. Regarding the role of
weaker sections and religious minorities in TR, Jayaprakash Narayan
preached the Sarvodaya attitude of enhancing their strength by their
effective organisations which was to be preceded by change in the
attitude of stronger sections by taking more benevolent view of their
responsibilities and obligations to the weaker sections and minori-
ties.°” Both the processes required greater focus on duty compliance in
respective spheres from which should sprout the well-deserved rights
true to Gandhian ideology. He viewed that better wage structure and
protection to landless labourers and their more meaningful social
participation were preconditions to development. He conceived TR to
spearhead eradication of caste system in order to bring dynamism and
3° Ibid.
4 Ibid, at pp. 192-97.
5 Before the Congress Socialist Party he outlined the objectives such as transfer of
power to producing masses; planned development of the economy; socialisation of key
industries; state monopoly in foreign trade; organisation of cooperatives, elimination
of princes and landlords; redistribution of land to peasants; liquidation of debts owed
by peasants and workers; adult franchise; and non-discrimination on grounds of
religion, caste, community and sex. Sudhansu Ranjan, infra, n. 109 at pp. 56-57.
ent,
6 The conditions he put for joining of Socialist Party to the Central Governm
me: abolitio n of privy
although without material effect, included 14 points program
ies on linguistic, economic
purse, administrative reform, redrawing of state boundar
land to remove economic
and administrative considerations; redistribution of
and insurance
inequality, reclamation of wasteland, nationalisation of banking Ranjan,
salary etc. Sudhansu
companies, unified trade union, scaling down of officers’
infra, n. 109 at pp. 130-31.
107 Ibid, at pp. 200-01.
r
OF oF aah, eee i OSre
mobility in social structure, a process which the social reformers advo-
cated from days immemorial. Removing the obstinate obstacle in the
form of caste system could bring cultural revolution in rural society
as India lived in villages, he reasoned. Pleading for reconstruction
of Indian polity to ensure direct and effective participation of people,
quite distinct from other models, he said, “Modern Western democ-
racy is based on a negation of the social nature of man and the true
nature of human society. This democracy conceives of society as an
inorganic mass of separate grains of individuals; the conception is that
of atomised society...The individual voter casts his vote as an atom of
society, not as a living cell in organic relationship with other living
cells.”1°9
Viewing that the differences of religion, caste, community, language,
culture and so on have provoked Indians to flow at the throat of each
other with ali kinds of violence, he preached for elementary human-
ity for developing India as a decent community.” Disunity of people
had weakened the polity in the past, and could hardly be continued.
For problems that involve human beings entizely legalistic or coer-
cive solutions do not fit in, he viewed. His solution to the menace of
Chambal dacoity consisted in human treatment of them to convert
them into good citizens. Jayaprakash Narayan was not mere ideologue
but a great practitioner of people’s movement. Through organising and
motivating Jana Sangharsh2 Samiti and Chhatra Sangharsha Samiti at
Gujarat and Bihar in pre-emergency days to combat corruption, law-
lessness and oppression of the poor, he demonstrated the potential-
ity of people’s control over government. Regarding implementation
of agrarian laws and struggles against benami transactions and other
devious methods of land grabbing, he constituted struggle commit-
tees in each panchayat in order to unearth facts and remedy the griev-
ances.’ The bottom-up approach was central to his people oriented
strategy. In rebuilding democratic tradition on a firmer footing during
the turbulent years of 1970s his contribution was tremendous.
8 Ibid, at p. 202.
® Sudhansu Ranjan, Jayaprakash Narayan: Prophet of People’s Power (National Book
Trust, New Delhi 2002) at ps2/7,
Jayaprakash Narayan, Total Revolution, Vol. II at pp. 292-93.
"See generally, Jayaprakash Narayan, Total Revolution, Vol. IV; Ghanshyam Shah,
“Direct Action in India: A Study of Gujarat and Bihar Agitations” in (Ed.), Ghanshyam
Shah, Social Movements and the State (Sage Publications, New Delhi 2002) at pp. 335-36:
“Direct action implies discontent with the existing situation. Sometimes it is useful as
a safety valve and gives vent to accumulated discontent and influences the political
authority without challenging its legitimacy.”
"2 Ibid, at pp. 155-56.
Sarvodaya 149
ee
3.3.4 Surrender of dacoits

Surrender of dacoits of Chambal Valley was a development in 1960s
and 1970s initiated by veteran Gandhians as a part of the application of
Sarvodaya principle. The issue had gathered legal, moral and human-
ist dimension in addition to delicate matters of penology.
For nearly 1000 years Chambal had been a homeland to the feared
dacoits—professional bandits for whom murder and robbery were a
tradition as well as a way of life. Chambal’s dacoits had captured the
public imagination as the royal rebels (baaghi), who helped the help-
less; the long-suffering farmer who took up arms against the rich feu-
dal lord; the poor goatherd who could find no other escape from state
atrocities; and the woman who swore blood-revenge against her rap-
ists.'> Because of the Robinhood character of the key leaders, they had
some supportive social base. They acted as parallel police in providing
security to the poor villagers who believed in them. When the con-
ventional police methods had persistently failed to control the dacoits,
Acharya Vinoba Bhave gently persuaded 20 bandits to give themselves
up in 1960 pointing out that everyone had both good and bad propen-
sities and sins of life are burnt out by repentance and by following
righteous path just like the darkness of cave is dispelled even by a
small candle.** He compared the rebellious character of dacoits to the
rebellion against the social order infested with poverty, inequality and
injustice and preached for non-accumulation of wealth and donation
of land to uproot the evil. He pleaded with the state authorities, “It is
unbecoming of a welfare state to try to solve the dacoit-problem with
the help of the police. It should be tackled as a human problem...Treat
them as human beings." The worst era of dacoity in Chambal was
in the 1970s and 1980s, when the region faced severe drought. In 1971
alone, India’s notorious dacoits committed 285 murders, 352 kidnap-
pings and 213 robberies. Most dacoits came from farming families and,
when they surrendered, they went back to farming. They were divided
sharply along caste lines.'® The spread of education and modernisa-
tion began to interrogate the practice of making criminality a source
of livelihood.
In 1972, a large number of dacoits (511) surrendered in the Chambal
Valley and Rajasthan owing to an important role played by Gandhian
organisations under the leadership of Jayaprakash Narayan. The sup-
.
2 http://www. flonnet.com/f12225/stories/20051216006712900.htm.
(Nation al Book Trust, New Delhi
114 Nirmala Deshpande, Vinoba (Tr.), S.A. Virkar
2001) at p. 102.
"5 [bid, at p. 103.
1,877695,00.html
ao http:/jegi pathfinder.com/time/magazine/article/0,917
150
ee I ee
to Legal Strategy
Alternatives MRR
port of followers like S.N. Subba Rao and others was also crucial.”
The surrender was before a large gathering with wide media cover-
age. Jayaprakash Narayan assured them against hanging."* The daco-
its revealed that it is not money or the lack of it that made a person
to take to weapons but revenge for an injustice done was the motive.
Persons who committed petty offences joined the gangs because of
fear of police, prosecution, inability to provide bail security, dila-
tory and costly trial and imprisonment.” The Indian Government
promised commutation of all death sentences the courts might hand
down, assumed care of dacoit families and provided scholarships for
their children. Redevelopment program for the Chambal valley was
planned aiming at countering the desperate poverty that led many
of the dacoits to lives of violence. After the multiple surrenders, the
Chambal valley enjoyed a period of relative peace. As a result, agri-
culture and other development activities flourished. Most dacoits who
did surrender lived peaceably, farming the 30 bighas of land that the
government allotted to them as a measure of rehabilitation. The once
turbulent Chambal became known for its prosperity.’”°
From the perspective of social transformation and law’s role in it
some inferences can be drawn from the above development. The cult
of violence and criminality is born out of lack of proper awareness
about human responsibilities, factor of economic exploitations, social
structure and multiplying tendencies of revengeful actions. The seri-
ous lacunae in the criminal justice system had also its contribution.
Statism as a solution for these social maladies had failed. Sympathetic
approach put forward by voluntary action and governmental support
to rehabilitate the surrendered dacoits within the legal framework
provided a comfortable solution. What could not be attained by police
force could be achieved by an approach of munificence, correction and
amelioration. How the Sarvodaya principle and procedure can sup-
plement the basic aim of the legal system is fruitfully demonstrated
in the Chambal story. In the long run, the attainment of this holistic
approach in integrating the deviant sections of the society into the civ-
ilised world with peace and prosperity for all is of great significance.
The Chambal lesson has both relevance and limitation in the context
of organised terrorism of modern days.
On the whole, Sarvodaya had benevolent and comprehensive objec-
tive of promoting welfare of all, and activating and uniting the whole
country emotionally and spiritually. While it believed in direct action
"7 http://www.tribuneindia.com/2003/20031110/cth1.htm.
"8 Sudhansu Ranjan, Jayaprakash Narayan: Prophet of People’s Power (National Book
Trust, New Delhi 2002) at pp. 201-02.
"http://www flonnet.com/fl2225/stories/20051216006712900.htm.
20 http://www.indiatogether.org/tribal/letters/chambal02.htm.
Marxism 151
ETS et
of people, its ideology and peaceful method gave all justifications for
it as an instrument of social transformation. Its bottom-up approach
perfectly matches the tradition of collectivism richly developed in the
Indian soil.
3.4 Marxism
3.4.1 General
Marxism is a radical philosophy that advocated revolutionary social
change as a method of reversing the exploitations and tyranny of the
strong over the weak. Developed in the context of exploitative social
order that had been unleashed by the industrial revolution in the West,
it responded to the deep-seated differences between capital and labour
by looking to the materialistic background of exploitation and histori-
cal instances of class conflicts. It wielded a great impact all over the
world, and upon developing countries in particular, to evoke socialis-
tic thoughts and policies. Upon the Indian society that had been sub-
jected to colonial rule for more than two centuries; that had suffered
drain of wealth and impoverishment of the common masses; and that
witnessed the class differences, poverty and deprivations, Marxism
cast indelible impact by supplying distinct doctrinal tools and practi-
cal guidelines to organise and carry socio-political movements.
Karl Marx and Frederic Engels believed that law was a superstruc-
ture built on the economic foundations and essentially reflected the
implications of class struggle.** An instrument of domination in the
hands of the economically powerful, law’s function consisted in crush-
ing and eliminating the minority, they reasoned. In order to deal with
the organised bourgeoisie power that oppressed the toiling community,
they gave a call for unity of workers of the world so that they would
be unshackled of their chains of bondage. The dictatorship of prole-
tariat so consciously built was to serve the interests of the classless
society on a footing of equality and gradually enable withering away
of state. “From each according to his ability and to each according to
his need” was the policy of distributive justice in Marxism. Thus, eco-
nomic determinism and materialist considerations were to primarily
mould the contours and direction of the legal system. By laying focus
on man as a matter rather than as a person possessing human spirit,
it developed moral principles as mere class morality to reflect class
interest rather than universal principles of ethical goodness.’ This
21 Jayaprakash Narayan, Total Revolution, Vol. 1 (Popular Prakashan, Bombay 1978)

at p. 129.
1994) at p. 398.
12 RWM Dias, Jurisprudence (5th Edn., Aditya Books, New Delhi
Vol. IV 24(3)
3 Nageshwar Prasad, “Jayaprakash Narayan’s Philosophical Quest”,
PO
put forward a different proposition about relations between means
and ends, to the effect that ends justified means. For establishing the
nobler ends of classless society, any means was good enough for the
Marxists. They conceived annihilation of the enemy, who obstructed
dictatorship of proletariat, for bringing eventual destruction of classes.
Between Gandhism and Marxism, both of which aim at rectifying the
unjust social order and concur about statelessness in ideal democracy
or perfect society,’ the fundamental difference lies in the relation that
links means to the end.» Whether violence was the sine qua non of
Marxian process of social revolution needs further discussion.
The practice of Marxism in communist countries has witnessed
bloodshed and violence, which has given rise to popular misconcep-
tion that violence is essential tool for asserting people’s supremacy.
Jayaprakash Narayan draws attention to the following observation
of Marx to dismantle this myth, “The worker must one day capture
political power in order to found the new organisation...But we do
not assert that the way to reach this goal is the same everywhere. We
know that the institutions, the manners and the customs of the vari-
ous countries must be considered, and we do not deny that there are
countries like England and America... (or Holland) where the worker
may attain his object by peaceful means. But not in all countries is this
the case.” Thus, it is un-Marxian to hold that only an armed revolu-
tion can lead to socialism. “The correct position is that either method
can be used, but which of the two is suitable to a particular situation
can be determined only by the relevant historical and objective condi-
tions...There can be no doubt that if Marxian methodology were to be
applied to India it would be the democratic method that would have to
be selected.” In contrast to the countries of communist practice-Rus-
sia, China and Eastern Europe- India has liberal democratic tradition
and clear inclination for peaceful changes within the constitutional
framework. As a result, the Indian Marxists are divided on the meth-
odology of bringing social revolution.
(Gandhi Marg 2002) at pp. 261-63. Jayaprakash Narayan considered man as both
matter and spirit. Jayaprakash Narayan, Prison Dairy (Popular Prakashan, Mumbai
1997) at p. 61.
'* Gandhiji said, “political power means capacity to regulate national life through
national representatives. If national life becomes so perfect as to become self-regulated ’
no representation is necessary.” Young India, 2-7-1931, at p. 162.
9 J.B. Kripalani, supra, n. 7 at p. 416.
6 Jayaprakash Narayan, Total Revolution, Vol. I at p. 112 citing from the speech
ee at the Hague Convention of the International Workingmen’s Association in
7 Jayaprakash Narayan, Total Revolution, Vol. I at pp. 112-13.

Marxism
ER
RS EE aA 158
3.4.2 Marxism in India: Parliamentary Left
Broadly, there are three major groups of Marxists. Parliamentary Left,
Democratic Socialists and the Armed Struggle groups. The first group
consists of the Communist parties who carry the Left movement in
Indian politics and make use of the parliamentary forum, sometimes
by holding the reins of power, to apply or implement the Leftist ide-
ology. The Communist Party of India, CPI (Marxist), Revolutionary
Socialist Party (RSP), Revolutionary Communist Party of India (RCPI)
and the Socialist Unity Centre of India (SUCI) are the important Leftist
components of parliamentary politics. By joining the parliamentary
mainstream and accepting to work within the constitutional frame-
work they claim to work for creating conditions suitable for socialism.
In the background of violent Telangana peasant movement of late 1940s,
which was largely influenced by the Communist Party and resulted in
chaos", the leaders made a retreat from violence. A.K. Gopalan gave a
call to stop all partisan actions and to mobilise the entire people for an
effective participation in election.” With the abandonment of the pol-
icy of “armed struggle” CPI (M) envisaged establishment of “people’s
democracy based on the coalition of all genuine anti-feudal and anti-
imperialist forces headed by the working class” whereas CPI proposed
a “national democratic revolution” to bring in a stage of non-capitalist
path of development where power will be jointly exercised by all those
classes (not exclusively working class) which are interested in eradicat-
ing imperialist interests, routing the semi-feudal elements and break-
ing the power of monopolies.’
The Parliamentary Left, which formed governments in states of
Kerala, West Bengal and Tripura, has been able to introduce modest
reforms such as redistribution of land among the landless, protection
of the rights of share-croppers and minimum wages to agricultural
labourers." Safeguarding of industrial peace by conciliatory efforts,
measures against price rise and fair wage policies, in addition to land
reforms, blunted the tactics of violent Leftist groups. But Liberalisation,
Privatisation and Globalisation blunted the tools of the Parliamentary
Left too. Persuasion on trade unions to refrain from strikes, collabora-
tion with big monopoly houses in joint ventures and wooing of foreign
28 D.N. Dhanagare, “Social origin of the Peasant Insurrection in Telangana, 1946-

51” in Ghanshyam Shah, supra, n. 111 at pp. 105-17. ;
29 M. Sen, Documents of the History of Communi st party of India, Vol. VII (People’s
Publishing House, New Delhi 1977) at p. 70. ;
in Ghanshyam Shah,
139 Sumanta Banerjee, “Naxalbari and the Left Movement”
supra, n. 111 at pp. 125-57. Ro
intermittently
131 [bid, at pp. 162-64. Communist governments prevailed in Kerala in
1977 and in Tripura
since 1957, in West Bengal in 1967-70 and continuously since
1967-70, 1977-89 and since 1994.
154
OS
arn ig Se
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direct investment have been envisaged by them with an argument that

“ If we are rigid in our views in the short run we would have no way
of reducing the burden of unemployment problem." Obsessive pre-
occupation with electoral politics without mass movements, corrosion
of Communist consciousness in love of petty power, utter depend-
ence upon the Central Government for projects and sense of helpless-
ness descending from the disintegration of Communist supremacy
elsewhere put the Parliamentary Left into the same position as that
of other political parties. As observed by Sumanta Banerjee, “No Left
Front Government can be expected to solve the basic problems of eco-
nomic stagnation, sick industries, lock-outs retrenchments and unem-
ployment. They share these problems with other Indian states subject
to the same model of development, which is prone to iniermittent gen-
eral recessions but also to regional imbalances and determination in
the allotment of resources by a center that controls the levers of indus-
trial planning.”
However, constructive works like universal education, serious
implementation of land reform laws, and security of fair wages to
workers made them different. Political consciousness and less cor-
ruption owing to better education were responsible for this. On the
national question involving multicultural identities-ethnic, religious
or linguistic—the policy of Left Front has undergone change, and it
has accepted the bourgeoisie premise of integrated Indian nation. In
contrast to advocacy of self-determination for tribal communities in
case of insurgencies in 1950s, the Left has toed the lines of national
unity."34 There is also erosion of class solidarity within the Leftist par-
ties owing to caste-based conflicts and loyalties. Sumanta Banerjee
writes, “Agitations and movements based —exclusively or largely — on
caste, Adivasi, linguistic or religious interests, which have assumed
greater and greater importance in recent years on the Indian political
horizon, have posed a challenge not only to the strategy and the tac-
tics of the transformation of Indian society of the Left along the lines
of class conflict, but also to the Indian bourgeoise’s aim of building a
nation-state on the basis of a centralising hegemony over heterogene-
ous communities.”"35
3.4.3. Democratic socialists

The second group of Marxists is formed by liberal socialist think-
ers like Jayaprakash Narayan, Ram Manohar Lohia and MN. Roy.
2 Ibid, at p. 169.
> Ibid, at p. 169.
4 Ibid, at pp. 179-80.
85 Ibid, at p. 184.
Marxism 155
Satint—‘“‘COSCS
Jayaprakash Narayan tried to harmonise between the principles of

Western social democracy and Gandhian thought. He said, “I would
choose the democratic method, since the goal is democratic socialism.
It is an axiom of Marxism, not as Mao Tse-Tung says, that socialism
cannot be achieved except through democracy, but that socialism can-
not exist except together with democracy. The method of violent revo-
lution and dictatorship might conceivably lead to a socialist democracy;
but in the only country where it has been tried, it has led to something
very different, to a bureaucratic state in which democracy does not
exist.9° He considered Marxism as a science of society and a scientific
method of social change, and hence there could not be dogmatism or
fundamentalism in Marxist thought. He said:
“The objectives of socialism are: elimination of exploitation and pov-
erty; provision of equal opportunities to all for self-development; full
development of the material and moral resources of society and utili-
sation of these resources in accordance with the needs and wishes of
society as a whole rather than in accordance with the dictates of profit;
equitable apportionment of national wealth and social, educational and
other services between all who labour and serve society.’"°7
Certain vital changes are required to achieve these ends. There should
be no slavery; no privileged economic or political class; no princedom
or zamindari or institutions of capitalism; and no excessive possession
of land. Tiller shall be owner of land. Cooperative farming, state own-
ership of all large industries and banks, and community-owned or
cooperative society-owned small-scale industries should replace the
existing order. Trade Unions independent of state control, and better
protection of the interests of workers and farm labourers are essential
for socialism. In a socialist society, production has to satisfy the needs
of society and it is adjusted to these needs. Jayaprakash Narayan con-
sidered socialism as a new culture and a new civilisation rather than
mere school of thought."8
M.N. Roy analysed the political and cultural dimensions of Indian
social history from Marxist perspective and considered that that the
traces of feudalism that existed in pre-modern India died with the
suppression of Sepoy mutiny (First War of Independence), which was
followed by class conflicts in farms and factories. The mercantile and
landlord community projected the bourgeois interests.°° The educated
middle class found the colonial rule as against their and country’s
economic interests, and initiated freedom struggle. He regarded that
136 Jayaprakash Narayan, Total Revolution, Vol. I at p. 67.

157 Tbid, at p. 57
88 Tbid, at p. 109.
9 See, Verinder Grover (Ed.), supra, n. 65.
political independence was the first step for economic self-dependence

and social emancipation. Real socialism can proceed from the leader-
ship of the workers, who have clear conception of exploitation, fatigue
and disappointment, unlike the rich or upper middle class leaders
who do not have such experience. New humanism should flourish on
the foundation of material existentialism. Freedom and sovereignty
are the creative instruments born out of man’s dominance over nature,
and not descended from metaphysical force. His People’s Plan for total
development had three preconditions: abundant human resource,
ready capital for investment and adequate internal market. It had the
features such as production aimed at satisfaction of common man’s
interests, mechanised cultivation, extension of agricultural prod-
ucts to correlate with economic development, nationalisation of land,
exemption from indebtedness and production of basic need materials.
Although he did not believe in dictatorship of the proletariat, he pinned
hopes in workers’ leadership. He laid great emphasis on humanist side
of Marxist thoughts.
Another Indian socialist, who gathered great inspiration from Marx,
was Ram Manohar Lohia. He believed that India should undergo
social transformation through socialist ideologies without tolerating
the pretences and deceptions of liberalism and also without falling
prey to the devil-like commitment to single purpose such as economic
determinism. He developed = holistic approach of reform of peasants,
protection of women and workers and linguistic harmony. He pleaded
for proper coordination between immediate values and ultimate ide-
als in order to reach the ultimate goal."
The third group of Marxists in India comprises of violent groups like
CPI (Marxist-Leninist), People’s War Group (PWG), Maoist Communist
Centre (MCC) and People’ Unity (PU). A discussion about their meth-
odology of social change is undertaken in the next section.
3.5 Naxalism: causes, course and cure
3.5.1 Origin and causes: the West Bengal experience

Naxalism is a set of revolutionary thoughts and strategies developed by
leaders under the influence of Marxism originally to resolve the prob-
lems of exploited peasants. The word is traceable to name of group of
villages (Naxalbari) in Darjeeling where a revolutionary peasant move-
ment had started in 1967 with the establishment of CPI (M-L). Unlike
the unplanned violent outburst of peasants’ anger in Telangana at the
“Jayaprakash Narayan, Total Revolution, Vol. I at p. 153.

Naxalism: causes, course and cure
He Usk Shgtualc sGuunoeiieeiogs ule er cr 157
dawn of independence, the dissatisfaction of the peasants and land-
less labourers in West Bengal got articulated in the form of organised
efforts. The gulf between landlords (jotedars) and tenants (adhiars) had
become deepened with the exploitative practices about crop sharing
and money lending. 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-increas-
ing 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, behind the peasant unrest emerged in the form of nax-
alism, there was a deep-seated social malady. It was one of the alterna-
tive forms in which the dissatisfaction of the people with their living
conditions found expression.’+ The slogans demanding abolition of
zamindari, land to the tiller, non-eviction of tenants, and reasonable
rate of interest were expressed with both economic assertions and
political challenges in 1952. In spite of electoral defeat, the Communist
Party carried the struggle by more intensive organisation of peasant’s
union and extensive agitation. The Bonus Struggle of plantation work-
ers, the call for regaining the possession of benami land and confisca-
tion of jotedars’ crops kept the communist agitation alive between 1952
and 1965. Losing faith in legal remedy because of the devious methods
machinated by the economically powerful to escape from law’s slender
clutches, some of the Communist leaders pleaded for armed guerilla
struggle. Charu Mazumdar propounded in 1965:
“...any movement on the fundamental demands of the peasantry will
never follow a peaceful path...To establish the leadership of the poor
and landless peasants, the peasants should be told in clear terms that
their fundamental problems can never be solved with the help of any
law of this reactionary government."”
He also said, “Our relations with the rich peasant will always be one
of struggle. For, unless rich peasant’s influence is weeded out from
the village, the leadership of the poor and landless peasants cannot
be established, and the middle peasant cannot be drawn over to as7 te
in Telangana, 1946-
41 D.N. Dhanagare, “Social origin of the Peasant Insurrection
51” in Ghanshyam Shah, Social Movements and the State, at pp. 91, 104-07.
. ies
42 Partha N. Mukherji, supra, n. 1 at pp. 34-35. ic
of jotedar, period
18 [bid, at p. 36. Free supply of labour to the kitchen garden ge in
and presentation of gift to jotedar in the context of marria
repair of jotedar’s house
adhiar’s house were some of the feudal practices.
44 Biplab Dasgupta, infra, n. 150 at p. 211.
45 Cited in Sumanta Banerjee, supra, n. 130 at p. 161.
s Tbid, at p. 130.
158 Alternatives to Legal Strate
eee gy
Me
Annihilation of the exploiters by assassination was also in the agenda.
After the general election in 1967 in which the Leftist coalition gov-
ernment came to power, in the background of helplessness of the rul-
ing party leaders in redistributing all lands to tillers owing to con-
stitutional and legal difficulties, the leaders of peasants in Naxalbari
and other areas launched armed struggle against the landlords and
police. Secret combat groups were formed. Efforts were made to set
fire to jotedars’ houses, their paddy were harvested in night, guns were
snatched, and red flag was hoisted in landlord’s land.” Killing of a
top police officer and powerful landlords by the revolutionaries was
the high watermark of the Naxalbari uprising. The month of June 1967
witnessed reign of terror. In the liberated areas parallel government
and people's courts were established with a belief that “Chinese path
is the path of liberation in India’. Radio Peking hailed the develop-
ment as the front paw of the revolutionary armed struggle launched
by the Indian people under the guidance of Mao Tse Tung’ teachings."
It appeared as though the revolution was roaring from the barrel of
gun.
The West Bengal Cabinet Committee, which made a spot study of
Naxalbari uprising, found that the revolutionaries consisted more of
peasants than the landless labourers and that the agrarian conditions
like debt burdens and other social problems were similar to the posi-
tion prevalent in other parts of the state. The Committee suggested
for distribution of governmental land for agricultural purposes, for
inquiring into specific cases of illegal evictions of sharecroppers and
for regularising the occupation of land by the landless labourers."
The government could reestablish law and order in troubled region
with the help of police.
Kanu Sanyal considered lack of military preparedness, absence of
strong party organisation and obstruction by the middle and rich peas-
antry were reasons for the defeat.%° Kanu Sanyal stated, “the terrorism
is pursued by the struggles against revisionism. That is, the new proc-
ess of forming a Marxist-Leninist party which was set in motion after
the Naxalite uprising of 1967 was again nipped in the bud and commu-
nist revolutionaries were split up into various groups.”*>' Factionalism
within the cadre, lure of political power and revisionist governmental
"7 Partha N. Mukherji, supra, n. 1 at pp. 43-44.

‘8 People’s Daily of China wrote, “A peal of spring thunder has crashed over the land
of India”; Biplab Dasgupta, The Naxalite Movement (Allied Publishers, Bombay 1973)
at p. 10.
4° Tbid, at pp. 57-58.
' Biplab Dasgupta, The Naxalite Movement (Allied Publishers, Bombay 1973) at
pp. 13-14.
1 Voice of Naxalbari, July 1982.
Naxalism: causes, course and cure
e r 159
policy lowered the enthusiasm of the leaders. Howe
ver, achievements
consisted in taking over of the land belonging to non-
cultivating own-
ers, destruction of legal documents, nullification of
debts, laws and
court orders and taking over of village administrati
on.” The anni-
hilation campaign had aimed at smashing the feudal auth
ority in the
village and to replace it by the authority of the peasants. Use
of crude
weapons and sadistic measures, attacks on schools and idols
and
loyalty to Chinese ideology were shocking factors that caused disen-
chantment.’ Enduring peace came with long ranging socio-econ
omic
reforms launched since 1970s. Naxalite movement split into 19 groups
in course of time with ideological disarray and disunity.
The impact of Naxalbari uprising should be seen in larger perspec-
tive. Charu Mazumdar considers the following lessons as important:
that peasants fought for political power rather than for land; that they
struggled against the reactionary apparatus; that they were self-reliant
in matters of weapons and strategies; and that they were intimately
moved by ideological thrusts.5+ According to Sumanta Banerjee, “The
Naxalbari uprising indeed left a far-reaching impact on the entire
agrarian scene throughout India. It was like the pre-meditated peb-
ble bringing forth a series of ripples in the water. It was also a water-
shed in the communist movement.” The fire and thunder of Naxalite
movement spread to other parts of India as the situations for organised
struggle were ripe there.
3.5.2. Naxalism in Andhra Pradesh

In Srikakulam district of Andhra Pradesh the killing of two tribals,
who were returning from conference, by landlord’s men in 1967 trig-
gered the peasant unrest. The tribal community had been harassed by
the moneylenders and the forest officials, resulting in denial of access
to forest produces for their livelihood and compulsion to work for poor
wages in the rich landlord’s fields. Their traditional right to harvest in
wasteland and use firewood was denied by the forest officials. When
the tribesmen rose in revolt against government by defying the restric-
tions under the leadership of V. Satyanarayana, police retaliated by
mass arrest and repression.%° A conference of tribals held in Levidi
brought a clash. The sensational murder case resulted in acquittal. The
Communists preached that in the prevailing socio-economic circum-
stance the legal system was a manifestation of the interests of the rul-
12 Biplab Dasgupta, supra, n. 150 at p. 13.

3 Ibid, Chs. 2 & 3.
54 Sumanta Banerjee, supra, n. 130 at p. 135.
85: [bid.
186 Ibid, at pp. 140-41.
160 Alternatives.to Legal Strategy
ing feudal class, and was to be done away with for protecting the inter-
ests of the downtrodden. In 1968 guerilla movement was launched to
forcibly cut the crops of the rich landlords. About 250 Girijans raided
a notorious landlord and moneylender, took possession of hoarded
paddy and other properties and seized documents and promissory
notes that had bound them in the past.”
Another site of violent protest was Telangana. The leader was Nagi
Reddy. The reasons for unrest were exploitation of the tribal peasants.
They were in economic distress depending upon loan from money-
lenders. They used to lease their land to migrant families, got indebted
to them and ultimately sold their land at very low price. Sometimes,
fraud was played to have sale deed signed by them in disguise for
lease deed.’ Village officials colluded in cheating the illiterate tribals.
Forest officials too harassed them. Frustration and anger made them
to join Nagi Reddy’s immediate programme (tatkshana karyakramam) of
agrarian reforms or land redistribution. In 1969, 15 districts of Andhra
Pradesh were affected by communist revolutionaries. Killing of land-
lords, moneylenders, merchants, policemen, forest officers—all together
48 in number—and raids and abductions created an atmosphere of fear.
The forests of Andhra Pradesh provided retreat for the guerilla war-
riors.° From the “armed agrarian revolution” of Naxalbari to “gue-
rilla warfare” of Telangana, the change was big, and the one towards
sustaining the power struggle. But since 1972, with the introduction
of economic reforms, the influence of Naxalism was waning but not
extinct. CPI (M) criticised the Naxal approach, “Thus neglecting the
main task of building mass organisations by refusing to fight for every
little relief for the workers and peasants by not paying serious atten-
tion to the immediate demands and to simultaneously raising politi-
cal consciousness, by a mere reliance on organisations of force once
more leads to a band of select individuals indulging in militant actions,
under the pretext of defending or revolutionising the struggles and
bringing disaster to the mass movement."
3.5.3 Jayaprakash Narayan’s solution to Naxalism

It is interesting to know about Jayaprakash Narayan’s highly imagina-
tive response to Naxalite problem in 1970. According to him, “Naxalism
is primarily a social, economic, political, and administrative problem
and only secondarily a law and order question.” But allowing private
retaliation will further aggravate the situation. He regarded that no
-_
” Ibid, at p, 144.
8 Ibid, at pp. 146-47.
—_
°° Ibid, at p. 151.
'° On Left Deviation, at p. 12.
Naxalism: causes, course and cure 161
= ensues heen ha
amount of arrests, imprisonments, and shootings could put down nax-
alism or any other kind of revolutionary violence unless at the same
time the remedy was applied at the roots His programme of work
undertaken in Musahari of Bihar, the Naxal hit area, to wean the area
away from violence included establishment of the Gram Sabha; redis-
tribution of one twentieth of the land covered by gramdan; setting up
of gramkosh; organisation of gram shanti sena; and legal confirmation of
gramdan. He looked into the problem of landless labourers and cases of
injustice and oppression. By redistribution of land collected through
gentle persuasion he was applying the remedy at the root of the prob-
lem. Referring to agrarian reform laws and Minimum Wages Act, he
said, “The failure to implement those laws for such a protracted period
of time has inevitably led to the growth of the rural violence we are
witnessing." He deplored the practice of cheating the land-ceiling
laws selfishly made by big farmers; grabbing of governmental land in
violation of rules; unjustified eviction of sharecroppers; usurious inter-
est charged by moneylenders; underpayment to labourers; and utter
neglect upon the Scheduled Castes and the tribals. He viewed that the
accumulated sense of injustice, grievance and hurt among the poor and
the downtrodden was seeking its outlet in violence, for which whole
society was responsible in one way or the other. He painted a realistic
picture when he said, “Unfortunately the style of politics in this coun-
try has been such that government, though protesting loudly their
faith in peaceful methods, have opened their ears only when blasts of
violence have beaten against them." Recalling the Gandhian plan to
create the power of the people alongside the power of the State, he sug-
gested the strategies of service, constructive work, and conversion by
gentle persuasion, and when the situation required, non-violent non-
cooperation or resistance to bring the desirable social change.
He viewed that it is better not to have a law than to have one, which
cannot be enforced." The false sense of promise and expectation that
a law gives is not only an attempt of self-deception, but is also a source
of greater dissatisfaction as the aspirants for amelioration would sigh
ultimately with frustration, “Oft our expectations fail; more it is so
when it is most promising.”
The strategy of area-wise capture of power to cure social malady of
the oppressed was continued in the subsequent decades although in
diluted form, and entered into states of Bihar, Madhya Pradesh, Orissa.
Peoples War Group, Chandra Pulla Reddy Group, and Vinod Mishra
233-34.
‘61 Jayaprakash Narayan, Total Revolution, Vol. I at pp.
at p. 240.
12 Jayaprakash Narayan, Total Revolution, Vol. 1
18 bid, at p. 244.
4 Ibid, at p. 239.
162 to Legal StrategyOS
AlternativesRINE
ee SR chs“See ee DONS ICONS
Group spearheaded the violent struggle with tactics of terrorising the
rich, attacking the police and kidnapping the vulnerable. The new mil-
lennium witnessed that it entered into Karnataka and Maharashtra
in the context of eviction of, or harassment to adivasis. States resorted
to detention under TADA and Preventive Detention laws, and direct
police actions or encounters, looking solely from the perspective of
maintaining law and order. Recent intelligence sources indicated a
strong Nepalese Maoist-Naxalite nexus that has emerged in the region
as a serious threat to the internal security of India as a whole and in
particular to five states—U.P, Bihar, Uttaranchal, West Bengal and
Sikkim. These states are connected to the Himalayan kingdom along
the 1751 km border.
3.5.4 The contemporary account

The contemporary account of Naxalite uprising is also written in
blood-spilt pages. Killing of one MLA and ten others on the wake of
Independence Day of 2005 in Andhra Pradesh, attack on prison and
forced release of Naxalite activists in Bihar in October 2005 and the
emerging Naxal base in Western Ghat region of Karnataka are some
of the pointers about the extent of the problem. An unprecedented
act of highhandedness and violence occurred on 13 November 2005
when more than thousand extremists attacked Jehanabad jail in Bihar.
Killing the sentinels they s st free 119 members of CPI (Maoist) who had
been kept in detention by the State. They also kidnapped 20 members
of Ranbir Sena, an anti-Dalit organisation. The incident has caused a
great alarm and concern.
The Union Home Minister in the Congress-led United Progressive
Alliance government claimed on 17 July 2004 “the government is of
the firm opinion that the Naxalite problem is not merely a law and
order problem. It is a socio-economic problem and (there) has to be
a three-pronged strategy to tackle it: Firstly, it is a political problem...
Secondly, law and order machinery should firmly deal with any prob-
lem on the law and order front. Thirdly, there should be some socio-
economic package to find a lasting solution...”. The annual report of
the Ministry for Home Affairs (2003-04) claims that “Naxalism con-
tinues to pose a serious challenge to internal security in the country.”
In order to “tackle” naxalism the Central Government “has adopted a
multi-pronged strategy...which includes modernisation and strength-
ening of the State Police Forces, better training to police personnel.
Special Task Forces for intelligence-based coordinated anti-Naxalite
operations, focused attention on developmental aspect and gearing up
of public grievances redressal system and encouraging local resistance
Naxalism: causes, course and cure 163
ee
i sti‘ awe
groups at the grass root level.” By “developmental aspects” is meant
to build physical and social infrastructure in 55 “naxal violent affected
districts” for which Rs 2475 crore has been provided for three years’.
In the same vein at the 14th meeting of the coordination centre on 19
March 2004 “it was decided to deploy 23 battalions of CRPF on long-
term basis (three-five years’) in naxal affected areas.” The Ministry
for Home Affairs launched Backward District Initiative under the
Planning Commission’s scheme Rashtriya Sram Vikas Yojana to amel-
iorate the conditions of agricultural labour in backward districts, espe-
cially the KBK region of Orissa. Districts like Bastar, Dantewada and
Kanker in Chhatisgarh are also given big packages of financial sup-
port for developmental activities. The Planning Commission consti-
tuted an Expert Group on Development issues to Deal with Causes of
Discontent, Unrest and Extremism in 2006. The Group has suggested
for upgrading the levels of governance, strengthening of public deliv-
ery sytem, achievement of livelihood security, rehabilitation of dis-
placed persons and implementation of Panchayat Raj law. It is only by
winning the minds of the peasantry by prevention of exploitation, as
was done in West Bengal, that the water of disgruntlement could be
removed where the fish of militancy will have no place.”
The casualties due to Naxalite violence in 2005 and 2006 were
reported to be 677 and 678 respectively. The shift in strategy from
guerilla to mobile warfare and mass attack with land mines is vis-
ible in 2007 with bids against political leaders.” Chhatisgarh, Andhra
Pradesh, Jharkhand, and Karnataka continued to face the menace.
In Chhattisgarh an anti-naxal campaign named as Salwa Judum
(People’s peace movement) was launched, envisaging close coordina-
tion between security forces and the local people.’® Naxal retaliation
against supporters of Salwa Judum by killing of tribals and 55 security
men in March 2007 at Jaragunda exhibits continuance of the problem.
The State Government's policy of package of special reforms and devel-
opment activities in the Naxal-hit area has gradual effect. Temporary
abandonment of villages by inmates due to Naxal fear shows serious-
ness of the problem in some states.
In academic circles and the elite groups there is a view that Naxalites
make conscious decisions by taking up the issues affecting the tribal
.
16 Ministry for Home Affairs (2003-04) at pp. 42-43.
ew. Frontline, 21-
16 PD, Bandopadhyay, Chairman of the Expert Group in an intervi ;
9-2007, at p. 23. 3
N. Rahul, out
“Down but not
167 Naxal terror, Frontline, 21-9-2007, at p. 4. See also, .
Frontline, 21-9-2007, at p. 10. .
Frontl ine, 21-9-2 007, at p. 14 the author
168 Purnima S&S. Tripathi, “Strategy gone awry”
interests in wreaking vengeance
considers that the movement facilitated the vested
and inflicting caste prejudice instead of curing.
people, who are among the most exploited in society. Manoranjan

Mohanty lists reasons such as dissatisfaction amidst tenants in the con-
text of agrarian transformation, commercialisation of forest resources,
reducing of the traditional access to forest produce, alienation of tribal
land to non-tribals despite legal strictures, and emergence of mining-
based industries and the construction of large dams which have caused
extensive displacement of the tribals, besides destroying their natural
environment for spread of naxalism.*” During the 1980s, the Naxalites
linked themselves with the nationality struggles in the Indian North
East, Jammu and Kashmir, Chhattisgarh, Jnarkhand, Tamil Nadu and
elsewhere. This strategic decision had a significant impact on both, the
agrarian movement as well as the autonomy movements. Each was a
complex struggle involving class and nationality, as well as caste and
gender. The formation of the smaller states of Chhattisgarh, Jharkhand
and Uttaranchal was a welcome step in terms of equipping people
with more say in their affairs, but the new states were keeping the
overall power structure intact. As a result, the nationality struggles in
these areas continue as integral parts of the agrarian and the broader
democratic struggle. Interestingly, the government understood this
linking of the Naxalites with other movements only in terms of a net-
work among militants for training, supply of weapons and coordina-
tion against state operations. Because of the issues they pursue, the
Naxalites have a social base, which sustains them despite a variety
of repressive measures pursued by the state. But it is also true that
ground-level issues of livelihood (such as cheap credit, access to land,
forest and market) of rural people do not seem to figure prominently in
the Maoists’ formulation of political strategy nor is there educational
and cultural work in their agenda.
Thus, it is essential to try to comprehend the nature and limitations
of the Maoist challenge, and address the socio-economic issues at its
heart, so that another spiral of intensified violence in India could be
avoided and prospects of peace and democracy enhanced. It is also
essential that the coercive power of the state be not used to defend
the interest of the rich and the powerful out of the way or to elimi-
nate peaceful resistance to injustice. Judging from the angle of history,
culture, social and economic conditions and political realities of the
country, violence by or against annihilators has not been a socially
acceptable remedial instrument.”
' http://www.insaf.net Himal South Asian Sept-Oct (2005) Vol. 18(2) Analysis; see
also, Ramachandra Guha, “The Absent Liberal”, Economic and Political Weekly, 15-12-
2001 for a view that the Naxalites fetishise violence for becoming heroes amidst the
poorest of the poor, the adivasis and dalits.
” Biplab Dasgupta, supra, n. 150 at p. 236.
Conclusions
e 165
ee
The democratic forum of the Left Wing condemns naxalism as anar-
chic and one that is driven to frenzy by the horrors of capitalism. As
Lenin had said, “The instability of such revolutionism, its barrenness,
and its tendency to turn rapidly into submission, apathy, phantasma,
and even a frenzied infatuation with one bourgeois fad or another-
all this is common knowledge." To overcome the problem of such
deviation, it is appropriate to have sustained efforts towards socio-
economic reforms and removal of causes for dissatisfaction amidst the
rural poor and the workers. For example, closure of Kudremukh Iron
Ore company (2005) for environmental reasons has created agony in
the minds of erstwhile workers. Before exploitation of the sentiments
of the workers by naxalites, adoption of suitable measures for rehabili-
tation would bring both peace and prosperity.
Thus, cure for naxalism consists in multi-pronged strategy of sin-
cere formulation and application of socioeconomic reforms; imparting
of extensive education that brings awareness amidst various catego-
ries of people about need for peace, faith in democracy; taking of strin-
gent measures against moneylenders and land grabbers by restoring
the entitlements of the exploited; and taking recourse to dialogue with
extremists for elimination of violence. Unless the social base for anar-
chism is removed, no solid result can be expected.
3.6 Conclusions
Amidst the strategies for social transformation, law is the most authen-
tic and formal instrument. But in a country like India, where strong
tradition of collectivism and community-initiated ameliorative meas-
ures were employed, a bottom-up approach of taking society into con-
fidence is very much required. Gandhism has taught and practiced
change of heart theory in a highly convincing manner by center stag-
ing the human approach of placating the oppressor and empowering
the exploited. The message is that social integration and solidarity
established through consensus of diverse sections of society go a long
way in visualising and effectuating social transformation. Gandhism
did neither denigrate nor glorify the role of law. It tried to strengthen
law by infusing the elements of justice, humanism and universalism.
Gandhian mission has worked to satisfactorily resolve astonishing
variety of social, economic and political problems through the change
legal
of heart theory with convincing success. This calls for integrating
Gandhian
and social strategy in the task of social transformation.
and
solution is highly inspiring because of cultural support it musters
Disorder”, Selected Works, Vol. III
1 Lenin, “Left Wing Communism, An Infantile
at p. 358.
SO a ig eter eg
enduring social benefits it engenders. While modernism’s exclusive
reliance on rationality, uniformity and progress have been proved
to be inadequate and also problematic because of marginalisation of
social forces, tradition, and voluntarism, Gandhism and Sarvodaya
transcend beyond modernism and tradition and aim at enhancing
overall strength health and wealth of society. Involving the society
seriously in the process of social transformation has been the major
strategy of sarvodaya. These have all time relevance in the process of
social engineering.
Marxism is a humanist reaction to economic and social exploita-
tions. Although it overemphasised class conflict and proletarian unity
as the process of social change, it did not preach the cult of violence
as an indispensable tool. In India, the Communist and socialist ideolo-
gies had cast their own influence in planning for socialistic pattern of
society within the democratic framework. But Maoist strategy of social
and economic reform, which believed in annihilating the oppressor by
whatever means, had kindled the fire of protest the disgruntled peas-
ants and landless agricultural workers. Inadequate or defective land
reforms, poverty and exploitations provoked violent movement of
Naxalism in late 1960s. Spreading to the pockets of tribal communities
by responding to the problems of their exploitation by moneylenders,
evictions from forests and forced dispossessions, Naxalism has posed
tall challenges to peace and order. The democratic and social response
to Naxalism in West Bengal and Kerala has reduced the violent upris-
ing into a syndrome rather than shaping it into strategy. Compared to
the peaceful strategies, modest working and social impact of Sarvodaya
and voluntarism under Gandhian ideology, Naxalism, which employs
ruthless killing, retaliation and fear psychosis as its tools, fails to con-
vince as an acceptable strategy at all. It also does not conform to the
tradition of peaceful collectivism cherished for centuries. But its pres-
ence symbolises the prevalence of deep-rooted social imbalances, eco-
nomic dissatisfactions and identity questions that are to be resolved
more comprehensively.
CHAPTER 4
Tae ate ee a
CONSTITUTION’S ORIENTATION
AND RESPONSE TO SOCIAL
TRANSFORMATION
4.1 Introduction
The deepest and most widespread implications of balancing between

continuity and change can be located in the very basic law of the land
in India. This speaks about the seriousness of the mission of social
transformation, which the independent India’s Constitution makers
visualised. In_thebackground-of-inheriting-a~-variety—of-social_and
economic problems arising from hierarchic society’s.imbalances and
maldistribution of resources and the turbulent experience of partition,
the embittered national mind needed an empathising touch and long-
standing solution through vision-full planning of constitutional objec-
tives and their implementation through appropriate organisation of
political power. A nascent democracy had required an environment
of stability for its growth, a stability that could be established by con-
fidence-inspiring multi-layered representative institutions adhering
to fundamental values of human rights, welfare and national unity.
Continuity of basic principles and institutions for the dignified sur-
vival of the society and transformation of social features to equip the
society with socio-economic justice are the two ends to which con-
stitutional jurisprudence had to address itself for comfortable result.
Although these ends appear to stand in contradiction, because of
mutual assistance between the two, proper balancing of them should
remove the contradiction.
In the very perception of the Constitution as a major instrument of
social transformation and its gradual historical evolution some note-
worthy factors like society’s own aspiration for social change can be
168 Orientation and Response to Social Transformation
Constitution's eg
Pa
seen. The Indian Constitution as aproduct of collective consciousness
of the people as awhole’ andas an intimate choice of autochthony
has great relevance forconscious social engineering it has launched. A
——
open itsstructure to accommodate new develop-

norms thatkeéps
ments and the community’s political imagination. Being product of
political compromises and deliberate social choices hammered through
consensus, it shapes, structures and stabilises the wider political proc-
esses, and is embedded in and sustained by the latter.* A pleasant mix
of bottom-up and top-down models can also be seen in the instru-
mentalities and approaches it has employed for social transformation.
The interconnection between multiculturalism, social justice, develop-
ment and democracy has enhanced the competence for social change.
Special provisions for religious, ethnic and linguistic minorities, pro-
tective discriminations for empowering vulnerable sections of society
and mechanisms for attaining economic justice have infused energy
of self-confidence into these communities. Modernisation and devel-
opment, along with continued adherence to these values, have been
contemplated through an essentially consensual approach? Being the
soul and heart of contemporary legal system, it releases the driving
force for social transformation.
Center-staging of people’s role and participation in constitutional
process and functioning has great relevance for social transforma-
tion. It is regarded by thinkers that Constitution, as a major policy
choice of the political society, isa system of enduring values and a
design to approach immortality as nearly as human institutions can
approach towards people's welfare.+ People are the ultimate makers of
the Constitution for moulding their destiny by incorporating their col-
lective determination for reform. As said by Chief Justice Marshall, “It_
is the creature of their will, and lives only by their will.”5 Success of a
' “A collective consciousness which makes India great is that collective

consciousness that makes every Indian feel elevated...the Constitution’s code, its
fighting creed..., is not elitist. It is democratic. It is proletarian. It is people-oriented,”
observed V.R. Krishna lyer, “The Indian Constitution: Our Founding Deed and Our
Fighting Creed—Some Thoughts on Their Future First S. K. Sinha Memorial Lecture,
New Delhi,” 1982 at pp. 9-13.
2 Bhikhu Parekh, Rethinking Multiculturalism (2nd Edn., Palgrave Macmillan, New
York 2006)at p. 207.
* Yogendra Singh, Social Change in India: Crisis and Resilience (Har Anand Publications,
* Justice John Marshall in Cohens v. Virginia, 6Wheaton 264 (1821) at p. 264.
> Ibid. Also see, Lord Irvine of Lairg, “Sovereignty in Comparative Perspective:
Constitutionalism in Britain and America” (2001) 76 New York University Law Review
Introduction 19
es
Constitution depends much upon the constant and organised support

from the people. Since the live veins of sociéty Shotild nourisha state
founded on the Constitution, it is to the society’s organic solidarity that
one should look for its means of success.° Although people may not be
good judges of legislative proposals because of lack of expert political
intelligence to foresee the effects, any exclusion of them from the infor-
mation process relating to policy-making or from the task of policy
implementation would obstruct the polity’s attainments? According to
Lord Irvine of Lairg, “Constitutional paramountcy reflects the notion
of social compact, of a population which is engaged in the political
process, and upon whose license the continued existence of the institu-
tions of government depends. Thus it invokes the idea of participatory
democracy.”
The Constitution of India has been a product of national consen-
sus on the method of governing the country with a commitment to
the enduring values of democracy, human rights, social justice, and
national unity. The preamble’s invocation of popular power—We the
People of India—symbolises continuous masssupport
to the values
and works under the Constitution and solemn commitment to the con-
structive politics of welfare and unity. Over the last 60 years’ of crucial
constitutional developments, people have identified themselves with
the Constitution, internalised its values in their conduct and expec-
tations, and contributed to its fruitful working. Constitutional values
have become part of their culture, a new dharmashastra for public life.’
Itprovided-a-systenrthat could hold the multicultural society together
even at the face of difficult challenges. As Granville Austin viewed,
“The Constitution, above all, has been the source of the country’s polit-
ical stability and its open society.”
In the actual operation of the Constitution as aninstrument of social
change, questions of right to property, uses of and limits on amen-
datory power of the Constitution and modality of balancing between
protective discrimination and other rights have cropped up. Judicial
approach has undergone several phases of development: from a literal
interpretation that narrowed down the scope of welfare and human
rights to a purposive interpretation that expanded the scope of these
1 at p. 10
6 B.A. Masodkar, Society, State and the Law (N.M. Tripathi, Bombay 1979) at pp. 10-12
n Press,
Lawrence Tribe, American Constitutional Law (3rd Edn., New York Foundatio
New York 2000) at p. 2. . a
7 Lord Irvine of Lairg, “The Development of Human Rights in Britain under an
Incorporated Convention on Human Rights” (1998) Public Law 221.
ity Press,
8 Granville Austin, Working of a Democratic Constitution (Oxford Univers
Ibid, at p. 635.
170 Constitution’s Orientation and Response to Socigl Transformation
measures; from interstitial judicial law-making to intensive produc-

tion of judicially evolved legal principles; and from a hesitant posture
of deference to state action to determined commitment to uphold the
constitutional values through judicial activism. The debates on origi-
nalism versus progressivism and textualism versus liberalism in con-
stitutional interpretation and on rigidity versus flexibility in the mat-
ter of constitutional amendment have posed subtle issues on balancing
between change and continuity. Parliamentary form of government,
which was deliberately chosen and adopted as a type of governmental
system to enable legislative initiative for social transformation, was
expected to work as a great engine of social revolution. An activist
administrative process and highly imaginative scheme of coopera-
tive federalism have been framed to fulfil the objectives of welfare
and social justice. But in practice, how far the legislative and admin-
istrative wings or institution of federalism stood to the constitutional
expectations will have to be assessed in the light of decades of experi-
ence. It is these above interesting factors that will be the focus of the
present chapter.
4.2 Evolution of the Constitution
The Constitution-making process in India involved culmination of the

freedom movement, concretisation of the values, goals and institu-
tions consciously developed ia the course of generations of public life,
and people’s direct and indirect participation. Since concept of justice
has been the key factor in its system of values, it is appropriate to trace
steps of social consensus that formed its foundation. The present dis-
course on social transformation can draw valuable inferences from the
social preparation meticulously carried out in India for the purpose
with great expectation.
4.2.1 Rawlsian sequence of making a Constitution

It is worthwhile to refer to Rawlsian sequence of making a constitution
as a part of our inquiry into the Indian Constitution’s social basis. John
Rawls has theorised the four-stage method of forming a Constitution
on the basis of consensus and as a means of attaining justice by lib-
eral political society.° He thought that the original position reflected
consensus of rational and self-interested contractors to identify the
concept of justice for social institutions. It reflected mutual trust and
confidence or cooperation of people. Carrying forward this to the
© John Rawls, A Theory of Justice (Oxford University Press, Oxford 1972) at pp. 215-30;
John Rawls, Political Liberalism (1993) at pp. 174-76; MDA Freeman, Lloyd's Introduction
Jurisprudence (7th Edn., Sweet & Maxwell, London 2001) at pp. 525-27, 577-81.
Evolution of the Constitution
e e eee
e lle171
second stage, the delegates to constitutional convention (Constituent
Assembly) enter the hall and deliberate upon the principles for giving
a stable form for democratic institution. Lifting of the veil of ignorance
at both stages contributes towards framing a just constitution." Rawls
assumes that a well-ordered society treats the question of justice with
consensus and selects the appropriate social institution to satisfy the
principle of justice, which is the basic structure of society."* He also
accepts the recognition of dissent and clash of beliefs, of interests and
attitudes as a part of the circumstance of justice. The third stage is the
legislative stage where the legislature supplements the task of incorpo-
rating the second principle of justice—substantive equality—by mak-
ing laws. It is by moving back and forth between the stages of constitu-
tional convention and the legislature that the best constitution is found.
The fourth stage is the judicial stage where through judicial review the
courts control the legislative policies to conform to the constitutional
requirement. Constitutional interpretation is an important opportu-
nity for reinforcing
the values ofjustice and libérty and for respond-
ingto the challenges of the socio-economic changes. Rawls has dualist
conception of constitutional democracy as he recognises the ongoing
role of the legislature and judiciary supplementing the constitutional
law. For the reason that constitutional amendments and judicial deci-
sions also form part of the Constitution, synthesis of four stages can
also be found as a feature of a living constitution. Justice as a central
concept to all the stages brings coherence to the whole scheme.
4.2.2 Polity’s concern and consensus for justice: the flow from ancient
to modern times
Amazingly resembling Rawlsian description of a just constitution’s
evolution, the ancient Indian system of Rajadharma had its roots in
consensus. In the original position people were mutually protecting
each other, and there was neither kingdom nor king; neither punish-
ment nor guilty person. But subsequently when the tyranny of the
strong over the weak reigned unabated, people began to search for
remedy. As Kautilya described, “People suffering from anarchy, as
illustrated by the proverbial tendency of big fish devouring the smaller
Moore, “Rawls on Constitution-making” in J. Roland
1 bid, see also, Ronald
Press, New
Pennock and John W. Chapman, Constitutionalism (New York University
York 1979) at pp. 238-42. .
of society, or more
2 “For us the primary subject of justice is the basic structure
institu tions distrib ute the fundam ental rights
exactly the way in which major social tion. By
of advant ages from social coopera
and duties and determine the division ic
l constit ution and the princip al econom
major institution I understand the politica
A Theory of Justice (1972) at p. 7.
and social arrangements. ” John Rawls,
13 Mahabharata, Shantiparva, at pp. 14-59.
172 Constitution’s Orient ation and Response to Social. Transformation
ea eat Na AES INULI N PERO HSER
ones (matsyanyaya), first elected Manu, the Vaivasvata, to be their king,
and allotted one-sixth of grain grown and one-tenth of merchandise
as sovereign dues. Being fed by payment, the kings took upon them-
selves the responsibility of assuring and maintaining the safety and
welfare (yogakshema) of their subjects and of being answerable for the
sins of their subjects when the principle of levying just punishment
and taxes has been violated.” The goal of the polity was ordained to be
the fulfilment of dharma, artha and kama.* The king was expected to be
the maker of age by setting example of ideal conduct and by motivat-
ing good behaviour.» The coronation oath of the king bound him to
protect the world, act fearlessly and observe the whole dharma and not
according to his sweet will.° The duties of the king to protect people,
to administer justice impartially, and to protect the minors, women,
the helpless and the diseased reflected policies of welfare state.” The
approach that “In the happiness of his subjects lies the king’s happi-
ness; in their welfare his welfare’”’® pointed out commitment to wel-
fare. The elaborate charter of equality as a philosophy and rule of law
emphasised the value of justice.”
The tradition of Buddhism and Ashokan policies of welfare and
religious tolerance continued the approach of peoples’ happiness.
Shankaracharya’s low-key treatment of property and focus on benevo-
lence of human soul gave a new dimension to life’s perception. The
illustrious line of Bhakti saints including Basavesvara, Ramananda,
Nanak and Kabir kept alive the considerations of justice in social poli-
cy.” It is similar principle of humanism that persuaded the medieval
society to continue the mainstream approach of religious tolerance
and people’s welfare overpowering the aberrations. Modern society’s
active involvement in combating social evils and gender injustice
reflected collective ideology of welfare and determination to estab-
lish the social base for justice. Thus, an undercurrent of consensus for
social welfare flowed through the ages and became a cultural ethos
‘* Barhaspatya Sutra, II-43; P.V. Kane, History of Dharmashastra, Vol. III (Bhandarkar
Oriental Research Institute, Poona 1973) at p. 240.
'* “Whether it is the king who is the maker of the age or the age that makes the
king is a question about which there is no room for doubt. The king is undoubtedly
the maker of the age.” Mahabharata, Shantiparva, at pp. 69-79.
'© Mahabharata, Shantiparva, at pp. 59, 106-08; Rama Jois, Legal and Constitutional
History of India, Vol. 1 (N.M. Tripathi, Bombay 1984) at p. 601-02.
” Mahabharata, Shantiparva, at pp. 24-25, 86, Manu, VIII-27-28; Vasista, IX-20; Rama
Jois at pp. 614-15.
'® Kautilya, at p. 42 (Shama Shastri); Rama Jois at p. 607.
' Rigveda, V-60-65; X-191-94; Atharvaveda samajnani sukta. PV. Kane, History of
Dharmashastra, Vol. II (Part I, Bhandarkar Oriental Research Institute Poona 1973) at
pp. 19-48.
20 See supra, Ch. 2.
Evolution of the Constitution
RSE SS ACSIA ESI RDN TACNY AO 173
for influencing the deliberations in the Constituent Assembly hall. It is
significant to note that the speeches of the members in the Constituent
Assembly were studded with references to ancient Hindu jurispruden-
tial thoughts and literature, extracts from Urdu and other Indian lit-
erature and socio-cultural experiences. They were not mere lip-deep
respects, but were recognition of indebtedness to the past either for
reform or for inspiration.
4.2.3
Anglo-Indian constitutional experiences: the emerging consensus
Introf oduc
rule of law,
tion
parliamentary democracy and federalism,
which have crucial importance for India’s social transformation,is
partly traceable to the outc
of British
ome Indian constitutional instru-
ments. In spite of their serious limitationthey
s, gradually and incte-
mentally enhanced the content and efficacy of these values, set the
trend for socio-legal changes and provided guidance and background
for free India’s constitutional development.
The Charter of 1600, while authorising the East India Company to
make reasonable laws, constitutions, orders and ordinances for the
good government of the Company and of its officers and execute its
Laws introduced the germ of accountability." With the transition of the
Company from a trading body to a territorial power, the notion of good
governance was extended to the legal regime operating upon people
under its jurisdiction in Presidency Towns.” Corruption amongst the
servants of the Company, public opinion against the Company, mis-
handling of the situation of famine in Bengal and deteriorating finan-
cial condition of the Company made the British Parliament to enact
the Regulating Act, 1773. The Act not only provided for control over
the Governor General in Council and created the Supreme Court of
Judicature, but also required the exercise of legislative power of the
Company to be just, reasonable and comport to the laws of England;
to get consent and approbation of the Supreme Court; and to be sub-
ject to King’s power of disapproval. In the matter of compliance with
English Law, discretion was exercised without guidelines, which pro-
duced more of injustice, alarm and anarchy.» The Act of Settlement,
2 [bert described it as the germ out of which the Anglo-Indian codes were
ultimately developed. Ilbert, The Government of India (Ist Edn., 1922) at pp. 10, 29. Rama
ional
Jois considered it as the starting point of the new legal system. Legal and Constitut
History of India, Vol. 11 (N.M-Tripathi, Bombay 1984) at p. 26.
Kulshreshta, Landmarks in
2 Charter of 1668, 1683, 1686, 1693 and 1698. See, VD.
Eastern Book Co., Lucknow 2005) at
Indian Legal and Constitutional History (8th Edn.,
Cowell, History and
BRA Pek Mill, History of British India, Vol. Ill, at pp. 502-03;
in India, at p. 44; V.D. Kulshrestha,
Constitution of the Courts and Legislative Authorities
at pp. 101-03.
174 Constitution’s Orientation and Response to Social Transformation
aN ERASE lA epsWR eR NRE A ILLIA TODAS EERE LLTNC IN
1781 aimed to rectify the ruinous mistake of the Act of 1773 by provid-
ing that the inhabitants should be maintained and protected in the
enjoyment of ali their ancient laws, usages, rights and privileges. It
also recognised the disciplinary jurisdiction of heads of Hindu fami-
lies upon their members. Regulation 3 of 1793 allowed application of
different personal laws on family matters, English Law on commer-
cial matters and justice, equity and good conscience in the absence of
specific source of law. The Charter Act of 1833 laid special emphasis
on the enactment of uniform law in certain important fields to govern
all persons without any distinction of caste and religion. It also con-
templated establishing of the Indian Law Commission to inquire and
report about judicial procedure and modifications required in sub-
stantive and procedural law.
The Proclamation made by Queen Victoria (1858) soon after the First
War of Indian Independence not only tried to assuage Indian feel-
ings by categorically declaring the policy of non-intervention in reli-
gious matters and inherited rights of the natives on land but also pro-
nounced the policy of support to social advancement and equal access
to public employment. From the perspective of social transformation
through people oriented governance, two important points made in
the Proclamation need attention:
“We shall respect the rights, dignity and honour of native Princes as
our own; and we desire tat they, as well as our subjects, should enjoy
that prosperity and that social advancement which can be only secured
by internal peace and good government...When, by the blessing Provi-
dence, internal security shall be restored, it is our earnest desire to stim-
ulate the peaceful industry of India, to promote works of public utility
and improvement, and administer the Government for the benefit of all
our subjects resident therein. In their prosperity will be our strength, in
their contentment our security and in their gratitude our best reward.”
Whether the British seriously pursued and practiced this ideal or not,
the policy statement had reflected the ultimate purpose of the polity
towards protection, peace and prosperity of people. The Government
of India Act, 1858 put an end to the rule by the Company, vested the
territories in Her Majesty and created the Council of India, a body of
fifteen nominees of Her Majesty, equipped with power to make laws
and supervise the executive. It contemplated four types of provinces
with different status and administrative set up.
From the angle of involvement of Indians in the governance a land-
mark development took place in 1861 with the passing of the Indian
Council Act. This Act provided for nomination of Indian members to
the Central Council and established legislative councils for the prov-
inces of Bengal, Madras and Bombay with power to enact laws of local
importance. Although the Governor General had power of intervention
in the matter of law-making, the emergence of the Council as a delib-
erative body was significant. The body consisted of not less than six
and not more than twelve nominees. The strength of the Council was
increased to 10 and 16 respectively by the Indian Councii Act, 1892.
Members were given opportunity to criticise the financial policy of the
Government and to suggest improvements. The Provincial Councils
were also expanded.
In the background of autocratic regime of Lord Curzon, a smoothen-
ing political touch was given in the Indian Council Act of 1909 by
passing Minto—Morley reforms. It increased the maximum number
of members of the Council to 60, introduced the system of election to
choose non-official members, and allotted seats on the basis of religion
and economic status as landlord. The reforms were peripheral and
socially divisive in consequence. For pacifying the dissatisfied Indians
by increasing association of them in the governance and for gradual
development of self-governing institutions with a view to the progres-
sive realisation of responsible government in India the Government
of India Act, 1915-1919 was enacted on the basis of the Montagu-
Chelmsford Committee Report. Bicameral central legislature with large
number of members, limited tenure and periodic election, prescrip-
tion of property, educational or income qualification for voters, com-
munal representation and overriding powers of the Governor General
were the features of the Central Government. Introduction of diarchy,
majority of non-official elected members with expanded strength and
division of legislative subjects into Central and Provincial subjects
were the features of provincial government. Keith hails the essential
novelty of the Act in providing for the system of responsible govern-
ment in some spheres. But the overlapping and interconnected char-
acter of transferred and reserved subjects, lack of joint responsibility
on the part of ministers, Provincial Governor’s power of intervention
in various levels and executive’s control over finance had resulted in
failure of diarchy. Gandhiji felt that the Act did not mark a change of
heart but was only a method of further draining India of her wealth
and of prolonging servitude.” In the light of repressive measures like
Rowlatt Act and the massacre of freedom fighters at Jalianwalla Bagh
who protested against the Rowlatt measure, a demand for revision of
Government of India Act 1919 was raised by the Congress party and
national leaders. During the discussion on Muddiman Commission
report in the Central Legislative Assembly, Motilal Nehru persuaded
at p. 247; Rama Jois,

2% AB, Keith, A Constitutional History of India (2nd Edn., 1937)
supra, n. 21 at p. 286.
, at p. 181.
2 P Sitaramaiah, The History of Indian National Congress
Ae. 176
e Consti
Cap es’s Orient
tution e
Onc e and Response to Social Transformation
ation
at
to pass resolution in 1925 for inclusion of responsible government
Centre, provincial autonomy and wider base of franchise.
The demand for inclusion of IndianmemberintheSimon Commission
which was constituted to review the working of the representative
institutions and ‘o recommend about the need for and direction of
change reflected the urge to assert the necessity of consensus of the
people for whom the Constitution was intended to be made. While the
demand was unsuccessful in spite of widespread demonstration, the
bold alternative in the form of Nehru Committee constituted by All
Parties Conference shifted the gravitational center of consensus from
state sponsored body to indigenous body of all political parties. Not
only the factor of alienation from indigenous community, but also the
failure of the Simon Commission to give a central place to justice had
drastically lowered the legitimacy of governmental effort. The Report
rendered by the Simon Commission had concentrated more on pro-
cedural refinement and institutional reform rather than on justice in
its multidimensional form. On the other hand, the Nehru Committee
Report's central focus on justice, welfare and liberty enhanced its
moral worthiness and its acceptability by majority of people. But a fis-
sure in national life arose when Nehru Committee outright dispensed
with the principle of communal representation and abstained from
carving out separate share for Muslims in the services of the state or
in local bodies. The Muslim League rejected the Nehru Report and
put forward its Fourteen Points Report demanding special status and
opportunity for the Muslims. It is this crucial absence of consensus
that wedged the nation into the two-nation theory.
In contrast to this, the positive story of consensus built at the com-
munity level on the question of amelioration of Depressed Classes
through separate electorate, in the background of agitation, assertion
and mass involvement in reconciliation for a longstanding formula of
balancing demonstrates the propriety of central place to justice in the
community’s conscience itself in the process of making a constitution.
The Communal Award announced by the British providing for sepa-
rate electorate for the depressed classes was opposed by the National
Congress. Gandhiji’s fast for indefinite period in Yaravada jail resisting
the British policy made the Government to reconsider its policy. The
controversy ended with signing of Poona Pact in 1931, which provided
for political reservation for the Depressed Classes rather than separate
electorate for them. This heralded a new era in the relation between
caste Hindus and the depressed classes.
Another important matter concerning which consensus was built
through deliberate effort was the one relating to the idea of all-
India federalism by merger of princely states. The First Round Table
EvolutES
SOL ion ofSAE
the Constitution 177
AN Nene Te ALN
Conference (1930-31) evolved this idea and assured about provincial
autonomy whereas the Second focused on completion of the structure
of federal government, distribution of financial resources between two
levels of government and mode of accession of states to the Federation.
The Simon Commission and the subsequent Government of India
Act, 1935 based upon it gave a concrete shape to the idea of federal-
ism. Although this effort did not yield satisfactory result because of
non-participation by the Princes and withdrawal of participation by
the Congress in the governance, an ideology and plan about change
from unitary to federal state were gathering consensus of support in
public mind.
One more strand of development was gradual evolution of the idea
of Parliamentary democracy. From the position of non-accountability
of the government to legislative body to that of ministerial responsi-
bility to the representative body at least at the provincial level, and
from small body of Crown nominees to larger body of representatives
chosen through election, the constitutional arrangements underwent
change. The importance of parliamentary model for popular govern-
ance and social transformation through law was gradually realised.
The fact that the Government of India Act 1935 was a half-hearted
formula of responsible government, providing for a structure of gov-
ernment without focus on welfare or human right protection kindled
aspiration for a better system.”
The aftermath of Second World War included Cabinet Mission’s plan
to have a Union of India without partition, Muslim League’s rejection
of the Plan and preparation for Constituent Assembly, which was
boycotted by the Muslim League. After the formulation and accept-
ance of Mountbatten Plan and passing of the Indian Independence Act,
1947 the Constituent Assembly received formal authority to frame the
Constitution for India.
4.2.4 Indigenous constitutional drafts: the seeds of welfare democracy

The first non-official draft, which came to limelight, was the
Constitution of India Bill 1895, probably emerged under the inspira-
tion of Lokmanya Bal Gangadhar Tilak.” The Tilak Bill declared, “No
law shall be made unless for public benefit” (Article 12). This is unique
ent state,
% In protest against the British policy of declaring India as belliger
1939 after two years’ of
the Congress ministries in various provinces resigned in
aya’.
participation.
the Act as providing or an
2” KT. Shah, Federal Structure, at p. 123 described
t involving the Indians.
ornamental mechanism for governance at the Centre withou
Documents, Vol. I (Universal
28 B. Shiva Rao, The Framing of India’s Constitution, Select
Law Publishing, New Delhi 1967 rept. 2004) at p. 5.
178 Constitution’s Orientation and Response to-Social Transformation
i 2Ee PY RSet A IE
because of value orientation given to law towards better social situation.
Its assertion that State education shall be free (Article 25) and that pri-
mary education shall be compulsory (Article 26), its guarantee of vari-
ous basic rights to all citizens and its detailed scheme for democratic
governance with federal system and bicameralism point out the vision
about social transformation through constitution. Gokhale’s Political
Testament, 1914 had put persuasive argument for provincial autonomy
and democratisation of local self-government. The Memorandum on
Post-war Reforms, 1916 reiterated demand for provincial autonomy
and a full measure of Local Self Government in addition to elected
legislative council and Central Executive Council with elected repre-
sentatives of Indians as its members. The Congress-League Scheme
1916 concentrated on democratic framework at the central and provin-
cial level and did not touch upon the modality or direction of social
change.
The Commonwealth of India Bill, 1925 drafted under the leadership
of Gandhiji and Annie Besant contemplated five units of government:
Gram (village) panchayat, taluka sabha, zila (district) samiti, provin-
cial government and national government with adequate coordination
and democratic features. The memorandum accompanying the Bill
shed light about the goals to be attained through independence and
constitutional governance. It said:
“For India, Freedom is a matter of life and death. The appalling pov-
erty of the masses, the neglect of their education shown by the disgrace-
fully low figure of percentage of school attendance, the short life-period,
the little tenacity of life...show that, as a Nation, she is on the down-
grade , under British Rule...The British Government cares only for its
own kin. There is one cure for the admitted ‘restlessness’ of India, and
that is her Freedom.””9
Another landmark indigenous document as an effort to reflect upon a
possible Constitution with a clear focus on social transformation was
the Nehru Report, 1928. Article 4 of the Report proposed to guarantee
equal liberty for all, gender equality, non-discrimination on grounds
of religion caste or creed in the matter of access to and public employ-
ment and various freedoms and due process protections. Some clauses
in the provision have explicit orientation to social transformation. “All
citizens in the Commonwealth of India have the right to free elemen-
tary education without any distinction of caste or creed in the matter
of admission to educational institutions, maintained or aided by state
and such right shall be enforceable as soon as due arrangements shall
have been made by competent authority.” “All citizens have an equal
access to, and use of, public roads, public wells and all other places of
29 Ibid, at p. 49.
EvolutioneR
of the Consti
ae eeltution inten eee 179
public resort.” “Parliament shall make suitable laws for the mainte-
nance of health and fitness for work of all citizens, securing of a liv-
ing wage for every worker, the protection of motherhood, welfare of
children, and (protection against) economic consequences of old age,
infirmity and unemployment.” While the first one tries to bring gen-
eral empowerment by establishing a knowledge society, the second
one has aim at eradication of untouchability. The welfare component
of the last one is explicit. The Report had contemplated parliamentary
form of government, federalism, and independent judiciary. Its idea
of redistribution of territory with a notable example of Karnataka as a
single separate province by joining various parts of it had a genesis for
linguistic organisation of states.
The Congress Resolutions and speeches of national leaders refer to
the task of eradication of poverty, restructuring the land ownership,
and formation of All-India federation and Panchayat Raj. According to
the Karachi Resolution, 1931, “In order to end the exploitation of the
masses, political freedom must include the real economic freedom of
the starving millions.” It had specific programmes to protect industrial
workers, women, children and peasants from various types of exploi-
tation. Many of the Directive Principles are traceable to the Karachi
Resolution*? Satyamurthy’s speech in the Central Assembly in 1937
demanding for Constituent Assembly and repealing of the 1935 Act
referred to transfer of political power as conferring an opportunity for
Indian people to live as free men and free women and to banish from
this great country the evils of poverty, misery and disease.
4.2.5 Quest for fair adjudicative system

The horrendous experiences of injustice in cases like Rama Kamti, Nand
Kumar, Radha Charan and others demonstrated the defects of the pro-
cedural and substantive law resulting in grave injustice to the parties
and brought loss of people’s confidence in the adjudicating system
prior to 178731 The Cornwallis Code of 1793 introduced elements of
fairness by separating judiciary from revenue functions, by reorganis-
ing civil courts and reforming the criminal courts and by empowering
the courts to control executive machinery. The process of reform con-
tinued in subsequent decades too. William Bentinck introduced the
policy of appointing Indians as judicial officers.
With the passing of Indian High Courts Act, 1861 and subsequent
statutes until 1935 High Courts with extraordinary original and
Cornerstone of a Nation (Oxford
% Granville Austin, The Indian Constitution,
University Press, New Delhi 1966, 2000) at p. 56.
and Co, Nagpur
31 See, MP. Jain, Outlines of Indian Legal History (5th Edn. , Wadhwa
29-30, 81-85, 88; V.D. Kulshrestha, supra, n. 22 at pp. 104-112 , 121-122.
1999) pp.
a OPM 25S tA RA I RA hh tent ca atte!
appellate jurisdiction were established in various parts of India with
distinct principles, procedures and composition.” Gradually, the prin-
ciples of independence of judiciary, prescription of uniform minimum
qualifications, power of superintendence over subordinate courts,
and regime of Law of Writs got a concrete shape. The High Courts of
Presidency Towns (Calcutta, Bombay and Madras) had the exclusive
writ jurisdiction and laid sound foundation for effective remedies.®
The splendid contribution of Judicial Committee of the Privy Council
in introducing English legal concepts in the sphere of public law is also
noteworthy. Further, the Federal Court established in 1937 emerged
as the predecessor to the Supreme Court of India by evolving federal
constitutional jurisprudence, although its approach was more legalis-
tic rather than welfare oriented
On the whole, the quest for dependable institutions of justice, which
had spread over 250 years’, provided an orientation for making the
judicial branch a responsible participant in law-society interaction.
4.2.6 Making of a Constitution for social transformation

The Constitution Hall at New Delhi was occupied by people of great
vision and meritorious public service. They represented diverse social
interests and dominant political voice of the masses. Their consensus
for centre staging the mission of social revolution through democratic
means and unity of the n ition was par excellence. Their exposure to the
social problems and people’s malady had lifted the veil of ignorance
and made them to fondly aspire for an instrument of social justice in
the form of a Constitution. A powerful infusion of energy, enthusiasm
and rationalism into the veins of vast society for bringing fundamental
changes and fulfiling the basic needs of common man was very much
required. As Granville Austin estimates, “These tasks the members
approached with remarkable idealism and strength of purpose born
of the struggle for independence. A Constitution, Assembly members
realised, could not by itself make a new India, but they intended to
light the way.”
Social transformation was a predominant theme that had spread
over the entire gamut of Constituent Assembly Debates, which is dif-
ficult to summarise or comment upon elaborately in the present work.
An attempt can, however, be made to highlight the major factors.
M.-P. Jain, supra, n. 31 at p. 283-98.

° MP. Jain, supra, n. 31 at p. 303-05.
“ Confining the scope of Hindu women’s right to inheritance only to non-
agricultural properties on account of division of powers substantiates this point.
% Granville Austin, supra, n. 30 at p. 13
Evolution of the Constitution 181
Telarc ussslatinnsns Sphinn nbieehy line hea haa ea
First, the thoughts on social transformation were not too
idealistic,
but were echoing the social content of freedom movement
reflect-
ing the pragmatic way of social change. In the context of
passing
Resolution regarding aims and objectives Jawaharlal Nehru said,
“I
trust that the Constitution itself will lead us to the real freedom that
we have clamored for and that the real freedom in turn will bring food
to our starving peoples, clothing for them, housing for them and all
manners of opportunities of progress...”° Arguing for uniformity
in freedom in all parts of India, he advocated for unification of India.
Dr. S. Radhakrishnan regarded Constitution making as a chance to
gain revolutionary ends, which were unusual to the past history of
India. He said, “It will be our endeavour to abolish every vestige of
despotism, every heir loom of inorganic tradition. We are here to bring
about real satisfaction of the fundamental needs of the common man
of this country irrespective of race, religion or community...It is a
socio-economic revolution that we are attempting to bring about. It is
therefore necessary that we must remake the material conditions; but
apart from remaking the material conditions, we have to safeguard
the liberty of the human spirit.” He considered that the ancient
Indian notion that righteousness was the king of kings (Dharmam
Kshatrasya Kshatram) had a great role in moulding the nation’s destiny.
V.D. Tripathi regarded that doing some good to the people required
building such a social and economic structure, whereby the people
got full opportunity for their advancement3* C.M. Poonacha viewed
that drawing a constitution for both present and subsequent genera-
tions made their duty more onerous.” S.H. Prater considered that pro-
tection of minorities in the matter of their social, economic, religious
and cultural needs became key to the making of Constitution with a
purpose of national unity.4° According to H.V. Pataskar, in the context
of diverse religions, tribal communities and Backward Classes of peo-
ple, avoidance of exploitations became crucial for constitution mak-
ing. Algurai Shastri extensively cited from Rigveda and other ancient
Indian literature and from the inclusive social policy of the medieval
India in support of the egalitarian ethos underlying the Constitution
and state’s duty to protect, educate and maintain." S. Nagappa pleaded
for fullest implementation of special provisions for Backward Classes
and Tribal people. Professor N.G. Ranga referred to the problems of
% CAD, 22-1-1947, at p. 322 of Book I

%” CAD, 20-1-1947, at pp. 269-73 of Book I.
38 CAD, 21-1-1947, at p. 312 of Book I.
39 CAD, 21-1-1947, at p. 310 of Book I.
4 CAD, 21-1-1947, at p. 307 of Book I.
41 CAD, 20-1-1947, at pp. 287-88 of Book I.
42 CAD, 20-1-1947, at p. 285 of Book I.
182 Constitution’s Orientationa Transformation
and Response to Social EE
a
exploitation of tribal people and peasants by merchants and zamind-
ars, and wanted permanent solution through education and assurance
of protection.*? Vijayalaxmi Pandit appreciated the Resolution’s design
for fullest social, cultural and economic justice for individuals and
groups and its commitment to world peace. N.V. Gadgil symbolised
unity of diverse communities in the fusion of Ganges and Jamuna and
exhorted to people’s loyalty to egalitarian duty.‘
Again in the context of adoption of Preamble, the idea of social
transformation was given specific attention. Barjeshwar Prasad sug-
gested to include the words “secular” and “socialist” in the descriptive
part of the Preamble and means of livelihood and compulsory educa-
tion in the objective part. He considered that to tone up the morale of
the minorities and economically vulnerable sections of society these
were essential. Complete combination of equality with liberty for
better social order required such an approach, he reasoned.** It can
be seen that while the Constituent Assembly regarded that “democ-
racy” included the concepts of “socialist” and “secular”, the makers of
42nd Constitution Amendment incorporated them into the Preamble
in 1975. Pointing out the moral, legal and spiritual shades of the con-
cepts in the Preamble J.B. Kripalani pointed out the inconsistency of
democracy with caste and class system.*7 He emphasised non-violence
as the basis of freedom of thought and belief. Dr. Ambedkar clarified
that “We the People” repres<ated that the Constitution should have its
roots, its authority, and its sovereignty, from the people.#
The concluding speeches of various members made reference to the
key task of social transformation through effective and sincere imple-
mentation of the Constitution. Dr. Rajendra Prasad said, “We have
prepared a democratic Constitution. But successful working of demo-
cratic institutions requires in those who have to work them willing-
ness to respect the view points of others, capacity for compromise and
accommodation...After all, a Constitution, like a machine, is a lifeless
thing. It acquires life because of the men who control and operate it,
and India needs today nothing more than a set of honest men who
will have the interest of the country before them.” He referred to the
features of the Constitution such as special provisions for the Tribal
* CAD, 20-1-1947, at p. 280 of Book I.
* CAD, 20-1- 1947, at p. 277 of Book I.
* CAD, 20-1-1947, at p. 275 of Book I.
*° CAD, 17-10-1949, at pp. 448-49 of Book V.
” Ibid, at p. 453.
8 Ibid, at p. 456.
*” CAD, 26-11-1949, at p. 993 of Book V; Alladi Krishnaswami Ayyar, “To a large
extent any Constitution depends upon the people who work it. It is the human element
that after all is the most important in the working of the Constitution” CAD, 23-11-
1949, at p. 840 of Book V.
SLATE
NLA STAIR Ee aac
Area and Backward Classes, establishing of secular order, federalism

and pragmatic solution to the language problem as providing for satis-
faction of diverse sections of the society. Dr. B.R. Ambedkar expressed
the need to remove the contradictions between political equality and
socio-economic inequality and suggested to use the trinity of equal-
ity, liberty and fraternity in this task. In order to maintain democracy
not merely in form but in fact also, he suggested, “We must...hold
fast to constitutional methods of achieving our social and economic
objectives.”"° This meant abandoning of bloody revolution, civil dis-
obedience and satyagraha and avoidance of hero worship. Female
members like Ammu Swaminathan and Durgabai considered equality
right as a great thing for helping women of India to realise their rights
and shoulder their responsibility5* According to Alladi Krishnaswami
Ayyar, “The Constitution contains within itself the necessary elements
of growth, flexibility and expansion. While it is not committed to par-
ticular economic reorganisation of society, the people are free to adjust
and mould the economic conditions for their betterment in any man-
ner they choose.”
Most of the members of the Constituent Assembly referred to ancient
Indian jurisprudence, literature, historical and social experiences for
effectively expressing their views in support of the concepts of toler-
ance, welfare, equality, human dignity, harmony and non-exploitation
in property relations. The views of social reformers were also used in
the course of discussion. Gandhian thoughts were frequently referred
with great reverence. In brief, their dependence upon the past in the
course of making supreme law of the land for solving future prob-
lems with sound visions was synthesising tradition and cultural ethos
with change. Sanskrit quotations and references to the glorious cul-
tural heritage adorned their speeches not merely for enhancing the
elegance of speech or for flourishing the rhetoric, but to drive home
the point of conformity of the Constitution to the social and traditional
values. Their post-modernist approach of reviving the good traditions
is noteworthy. They were also not hesitant to condemn the evils of
blind beliefs and social prejudices.
Second, the choice of the system of adult suffrage and central-
ised parliamentary form of government along with Panchayati Raj
at local level as the road chosen for social revolution was reflecting
at
synthesis between modernisation and tradition» While panchay
uplift
as a form of Local Self Government and instrument of social
5% Ibid, at p. 978
51 CAD, 21-11-1949, at pp. 887&993 of Book V.
5 CAD, 23-11-1949, at p. 840 of Book V.
8 Granville Austin, supra, n. 30 at pp. 34-49.
184 Response to Sacial
Constitution's Orientation andA: Transformation
Dac MISS 8 IAL AI NRNe i i eyentree ANN ARES EN
was favored, making it an electoral college for indirect system of elec-
tion was not preferred to direct adult suffrage system. The disbelief
about competence of local bodies reflecting only local and traditional
interests to support dynamic changes at the national or state level
had sidelined the position of panchayats. Parliamentary democracy as
a tool for social change could thrive through direct election, it was
thought. For national level planning, for launching public distribution
system, national security and suppression of communal problem a
strong Central Government based on principle of accountability was
regarded as appropriate. However, the role of panchayats to foster peo-
ple’s involvement in improving village conditions was recognised as
supplementary means of social change. Aspiring for modernisation
of India along with preservation of her identity was like harmonising
between the “inner man and his ever-changing outer environment.”
Third, discussion on Fundamental Rights and Directive Principles
of State Policy reflected the concern to make social transformation cen-
tral to the working of these provisions. The views expressed in the
course of discussing the provisions relating to reservation, women’s
rights, prohibition of untouchability, traffic in human beings and
bonded labour, and protection of religious freedom and minority
rights reflect such concern. The insightful speeches of Monmohon Das,
B.R. Ambedkar, Dakshayini Velayudhan, Muniswamy Pillai, Nagappa
and KT. Shah threw light or transformative spirit underlying eradica-
tion of untouchability and discrimination in public places>> Regarding
reservation in public employment Dr. Ambedkar clarified that the
policy was to safeguard two things namely, the principle of equality
of opportunity and at the same to satisfy the demand of communities
which had not so far representation in the state5° About the need for
regulatory power with the state against abuses of expressional and
other freedoms K. Hanumanthayya viewed from a law-society per-
spective: “Law once made may not hold good for all time to come.
Society changes; Governments change; the temper and psychology
of the people change from decade to decade if not from year to year.
The law must be such as to automatically adjust itself to the changing
conditions.”” He regarded that this task could b2tter performed by
the legislature rather than judiciary. Algu Rai Shastri considered vari-
ous legal! restrictions on freedoms as essential for good citizenship and
for realising the responsibilities arising from freedom:* Prohibition of
* Jawaharlal Nehru, Unity of India, at p. 26; see also, Granville Austin, supra, n. 30
at p. 49.
*° CAD, 29-11-1948, at pp. 651-69 of Book II.
*° CAD, 30-11-1948, at p. 701 of Bcok II.
” CAD, 2-12-1948, at p. 754-55 of Book II.
* Ibid, at p. 768.
liquor consumption and exploitation through abuse of property right
were paving the way of reform, he reasoned. Discussion by Durgabai,
Raj Bahadur, Renuka Roy, Nagappa and T. Krishnamachari on traffic
in human beings focused on magnitude and types of exploitations and
experiences of legal prohibition in some of the states;? Renuka Roy
observed that unless there was change in the mind of men towards
the problem, the very dignity of womanhood could not be protected
in spite of legal reforms.® The discussion on freedom of religion con-
centrated on the modalities and limits of bringing social reforms in
religion and control of economic activities connected with religion.”
Protection of the educational rights of religious and linguistic minori-
ties was discussed from the perspective of identity-protection and cul-
tural autonomy suitable to social change and harmony. The discussion
had contemplated such educational right at primary and secondary
levels of education only.”
Constitution makers had high expectations about the status and
effect of Directive Principles of State Policy in their pursuit for planned
social changes through them. K-T. Shah expressed unhappiness for
keeping compulsory primary education only as a directive and non-
enforceable against the state. Shibban Lal Saksena was against treat-
ing the directives only pious wishes, as they were instrumental for
realising the great ideals contained in the preamble, and suggested for
converting them into Fundamental Rights after 10 years’.* D.S. Seth
suggested for socialistic pattern of society for bringing real welfare of
people. Pointing out such content in the draft provision, Dr. Ambedkar
observed, “While we have established political democracy, it is also
the desire that we should lay down as our ideal economic democracy.
We do not want merely to lay down a mechanism to enable people
to capture power. The Constitution also wishes to lay down an ideal
before those who would be forming the Government.’ His view
that DPSP operated as Instruments of Instructions making the party
in power answerable before election pointed out its place as evaluat-
ing standard in politics and calling for political sanction. Shibban Lal
Saksena pointed out the extent of economic amelioration to the work-
ers and families of untouchables with the policy of prohibition of alco-
5° CAD, 3-12-1948, at pp. 806-11 of Book II.

6 Ibid, at p. 810. rei eiigs
61 CAD, 6-12-1948, at pp. 816-22, 823-39 of Book Il.
Kolkata 2004) Ch. 13.
62 P Ishwara Bhat, Fundamental Rights (Eastern Law House,
utional Amendment,
® CAD, 19-11-1948, at pp. 479-80 of Book II. After 86th Constit
2002, it is a Fundamental Right under Article 21-A.
% Ibid, at p. 482.
6 CAD, 19-11-1948, at p. 494 of Book II.
186 Constitution’s Orienta tion and Respon se to Social Transfo rmation
nh i ree PANNE EET. SEES SGE SESE
hols. While there was opposition to the prohibition policy on account
of religious practice and liberty of the poor, the implementation of the
prohibition law with people's cooperation and inspiration of Gandhiji
was highlighted by others.” Regarding the directive on cow protection
economic, religious and cultural reasons were put forward by mem-
bers. While Hindu sentiments were clearly favoured the policy, the
views of Muslim members that cow sacrifice was not a religious com-
pulsion under Islam smoothened the process of its incorporation. The
discussion on Uniform Civil Code had trusted ultimately the demo-
cratic choice of future legislature instead of making it compulsory. The
reasons of emotional integrity and gender justice were advanced in
its support. Dr. Ambedkar considered that in view of existing prac-
tice amidst convert Muslims to follow Hindu personal law, the ques-
tion of personal law was not linked with religion and social reform
needed in the field of personal law would be enabled by Uniform Civil
Code. The trend towards accommodation of diversity without com-
pulsion of uniform law was also visible as a method of compromise to
be resolved by future legislature. Unanimity prevailed on protection
of ancient monuments” On the whole, the thrust towards balancing
between continuity and change is clearly visible.
Fourth, property right debate in the Constituent Assembly had con-
centrated on subjecting the property right to the imperatives of eco-
nomic justice. Explicit eviderces about using the Constitution as an
instrument of social transformation can be found in the property right
debate. There were broadly three groups of members: First, there were
moderates who were committed to the cause of abolition of zamind-
ari with payment of non-justiceable compensation to be determined
by legislation, who inclined to protect existing legislation and pend-
ing Bills subject to President’s assent but were agreeing for equitable
compensation in case of petty acquisition of property for public pur-
pose and for judicial intervention in case of legislative fraud upon the
Constitution. Non-justiceability of compensation in case of acquisition
of large corporate bodies or monopoly industries was also suggested by
them. This group consisting of Jawaharlal Nehru, Patel, Pant, Munshi,
Alladi and other Congress leaders held the majority support, as their
view was one of compromise and supported by the people outside.
Second, there were radicals who totally rejected judicial intervention
° CAD, 24-11-1948, at p. 556 of Book II.

*” Ibid; views of B.H. Khardekar, Jaipal Singh differed by Muniswamy Pillai, B.G.
Kher and A. V. Thakkar at pp. 555-67.
* CAD, 19-11-1948, at pp. 568-8lof Book II; views of Thakur Das Bhargava, S.L.
Saksena, R.V. Dhulekar, Z.H. Lahiri, Syed Muhammad Saiadulla.
© CAD, 23-11-1948, at pp. 551, 540-52 of Book II.
” CAD, 25-11-1948, at pp. 593-94 of Book II.
on matters of compensation not only for acquisition under the existing
law or pending Bills after their passing but also in all future acqui-
sition in the context of agrarian reforms or taking over of monopo-
lies. This group consisted of K-T. Shah, D.S. Seth, Shibban Lal Saksena,
Renuka Roy Chaoudhuri, Laksminath Sahu, T.D. Bhargava and oth-
ers and suggested for replacing the term “compensation” by the term
“amount”. The third group, which harped upon justiceable and fair
compensation, consisted of Jaspat Roy Kapoor, Jagannath Baksh Singh,
Aizaz Rasul, Mahboob Ali Baig and Hasrat Mohani.
The zamindari abolition scheme had implications of protecting the
interests of 7 crore 20 lakhs of agriculturalists and tillers of soil in
contrast to deprival of rights of 10,000 zamindars The level of dis-
cussion was of high order touching upon the philosophy, changing
economic facets and social functions of property in the Indian con-
text. The distinction between beneficent use and exploitative power
aspects of property was reflecting in the views of first two groups.
They emphasised communitarian interests in property. Nehru consid-
ered that land legislation bringing great reform benefiting millions of
people could not be left to the vagaries of prolonged and widespread
litigation. Tracing the changes in concept of property to human soci-
ety’s development rather than to law he said, “No individual can over-
ride ultimately the rights of the community at large. No community
should injure and invade the rights of the individual unless it be, for
the most urgent or important reasons...When we pass through the
great ages of transition, the various systems—even systems of law —
have to undergo changes. Conceptions which had appeared to us basic
undergo changes...Thus the old conception of the individual owner of
property suffers not only social development, as we see them taking
place and from new conceptions of cooperative ownership of property,
but from the development on the old lines when a rich man with capi-
tal can buy out the small one for song.”” Alladi Krishnaswamy Ayyar
considered that law should serve as an instrument of social progress
and observed, “Property exists for dharma. Dharma and duty, which
the individual owes to the society, form the whole basis of our social
framework. Dharma is the law of social well-being and varies from
Yuga to Yuga. Capitalism as practiced in the West came in the wake of
the Industrial Revolution and is alien to the root idea of our civilisa-
tion. The sole end of property is Yagna and to serve a social purpose.. 5
Many members referred to ancient Indian jurisprudence and philoso-
shall prevail
phy in support of communitarian interest of property that
you may enjoy;
over individual interest. The great ideal “renounce that
Munshi.
71 CAD, 12-9-1949, at p. 1304 of Book IV; K.M.
96 of Book IV; Jawah arlal Nehru.
72 CAD, 10-9-1949, at p. 1194-
ere
enjoy by renouncing” was referred to by H.V. Kamath and Guptanath
Singh?3 Singh cited from Mahabharata, “Colossal money, big capital,
cannot be amassed unless and until you scratch hearts of others by
entrapping the people just as the fisherman butcher fishes by entrap-
ping them’ He also referred to Manu Smriti which stated, “The land
belongs to man who cultivates it.””> Balakrishna Sharma supported the
Nehru formula by relying on the proposition of common good as the
basis of property and non-stealth as the justification in its enjoyment
as laid down in Bhagavadgita”’. K.T. Shah looked to property as an eco-
nomic institution rather than ethical one. When human effort of add-
ing value to the property by putting labour or sacrifice did not occur,
or when leaving the property fallow by indifference, incompetence or
negligence amounted to social offence or when surplus far in excess
of legitimate profit was earned by monopolies, the loss of property by
such owner did not deserve compensation, he reasoned.” Fraud, vio-
lence and force as a means of acquisition of property by any individual
destroyed both the economic and ethical base of property, he added.
D.S. Seth viewed property as social institution rather than product of
natural right of man and accordingly held that it was subject to regu-
lations and claims of community’s interests7* It can be remembered
that the predominant view of the Constitution makers about prop-
erty’s subordination to social transformation had a lasting impact on
subsequent constitutional devzlopment through several amendments
ultimately ending in textual deletion of right to property from Part III
of the Constitution.
Fifth, approach of using the tools of multiculturalism for social
transformation had responded to the questions of identity retention
with elements of social justice. The discussions on secularism, minor-
ity’s protection and Uniform Civil Code were focusing on avoidance
of intervention with communitarian identity but pressing upon social
> CAD, 10-9-1949, at pp. 1214 and 1253 of Book IV.

”* Mahabharata, Shantiparva, IV-2; L. Sahu quoted from Shankaracharya, “Always
take wealth as a source of great evil. Surely, it cannot impart even little of pleasure.
The maxim ‘Those who are after riches are even afraid of their own progeny’ has been
proclaimed everywhere” at p. 1258.
” Sthanuchhedasya kedaram CAD, 10-9-1949, at p. 1254, Book IV.
76 CAD, 12-9-1949; “They are the thieves and sinners who have only their own
comfort before them in acquiring property and who forget that ultimately the whole
society has been created with the spirit of Yajna or sacrifice.”(Bhagavadgita III-13) He
also referred to the ancient aspiration “Let everyone in society in this world be happy.
Let none suffer from illness. Let everybody develop the capacity to see the truth and
let nobody be unhappy.” (Sarve bhavantu sukhinah, sarvesantu niramayah, sarve
bhadrani pashyantu ma kaschid dukhabhag bhavet)
” CAD, 10-9-1949, at pp. 1219-22 of Book IV.
’° CAD, 10-9-1949, at p. 1202 of Book IV.
StU
reforms by convincing through democratic means”? The language
for-
mula evolved through political compromise was a pragmatic choice
largely conforming to the goal of equality in language rights, and
compatible with national unity and national spirit”. Regarding the
language issue Nehru emphasised the need to keep step with culture
of the time (yuga dharma) and keep abreast of changing humanity in
the process of modernisation, lest one will not lag backward. The
protection of interests of tribal people by securing their traditional
institutions of self-governance and customary law, by protecting them
from economic exploitation and by assisting them through affirma-
tive action was widely deliberated upon in the Constituent Assembly.
B.R. Ambedkar viewed the limited segregation of tribals for self-gov-
ernance as not amounting to creation of watertight compartments but
creation of multiple cycles of participation to associate themselves and
influence each other.*
Sixth, borrowing from the examples of other constitutional systems
or using the gains of their experiences, or continuing the scheme of
federalism under the Government of India Act, 1935 had not threat-
ened the Indian autochthony but supplied tools that could be used to
suit the Indian situation. The Constitution makers were open-minded
to select and use tools such as Directive Principles, parliamentary form
of government and federalism with appropriate modifications. While
the transformation of India into one of Rigvedic times was not possible,
the lessons of our civilisation and culture were not to be rejected, said
Seth Govind Das. He also said, “We should adopt all that the modern
world has to give us to fulfil our needs... Modern India should be so
built up that we may be able to retain our culture and civilisation.”
Federalism with strong center was deliberately chosen as a measure of
ensuring national security and all-India planning towards all-round
development through the cooperation of federating units.
Seventh, the factor of consensus built through political compro-
mises and party choices had contributed to the goal of social justice.
Unity of purpose, common vision and open-minded approach made
the Constitution makers to agree on substantial matters of the policy
towards national unity, social transformation and democracy.
On the whole, the Constitution makers treasured the ideals of jus-
tice and spirit of social transformation in the very heart of their con-
on
sensus and gave a concrete shape to its planning and implementati
. That
by detailing the institutions and mechanisms for that purpose
16. .
77 For further discussion, see infra, Chs. 5 and
further discussion see infra, Ch. 6
8 Granville Austin, supra, n. 30 at p. 307; for
81 CAD, 13-9-1949, at p. 1414 of Book IV.
® CAD, 6-9-1949, at pp. 1028-29 of Book IV.
190 Constitution’s Orienta tion and Response to Social Transformation
ial e are SL rove cintetssr sian! ean eo
their blue print for social progress was grand and inspiring can be
understood by looking to the text of the Constitution.
4.3. The textual basis, persuasion and mechanism for social

transformation )
Many of the provisions and schemes in the Constitution set the goals
of social transformation and make institutional arrangement to realise
the goals. It is for this reason that it is called social document.”
The Preamble’s objective part refers to the goals of assuring to all cit-
izens justice, social economic and political; Liberty of thought, expres-
sion belief and worship; Equality of status and opportunity; and pro-
moting among them Fraternity, individual dignity and national unity.
The description of the Constitution as Sovereign Socialist Secular
Democratic Republic points out the means through which the goals
set are to be achieved. For all organs of government at various lev-
els, Preamble is the fountain of guidelines. It has inspired the judici-
ary to arrive at some of the finest interpretations of constitutional and
legal provisions to further these objectives. Workers; women, vulner-
able sections and minorities got benefits and protections due to this
approach.
Equality charter (Articles 14 to 18) is one of the major instruments
for social transformation. Equality as an individual right in Article 14
has exhibited potentiality :o combat unreasonable classifications and
arbitrariness and inter alia rescue the interests of workers and the
deprived. Prohibition of discrimination amidst citizens in the mat-
ter of access to public facilities [Article 15(1) and (2)] has clear aim of
removing the prevalent social disabilities. Special provisions that can
be adopted by the State for women and children [Article 15(3)], for
Scheduled Castes, Scheduled Tribes and Socially and Educationally
Backward Classes [Articles 15(4) and (5)] have direct bearing on their
advancement. Guarantee of right against discrimination in the matter
of public employment and reservation for backward classes of citizens
supplement the concept of equality through the policy of substan-
tive equality [Articles 16(1) and (4)]. Extension of reservation to pro-
motional posts [Article 16(4-A)] and non-application of the 50 per cent
rule to filling of backlog vacancies [Article 16(4-B)] are the subsequent
accretions through amendments. Abolition of untouchability (Article
17) has great reformative input for enhancing human worth by eradi-
cating a social evil. It is unique in that supreme law itself criminalises
the practice of untouchability. Abolition of titles (Article 18) also puts
an end to feudal practice.
83 Granville Austin, supra, n. 30 at p. 50.

The textual basis, persuasion and mechanism
ee |e 191
The freedoms guaranteed under Article 19 read along with grounds
and extent of restrictions that can be imposed reflect combination of
freedom with order and social responsibility of the citizenry. The guar-
antee of right to life and personal liberty under Article 21, because of
its thrust on protection and judicial recognition of its relation with
various provisions in Parts III and IV and Preamble, has become a
great site of revolutionary changes. The assurance of right to. right to
free and compulsory primary education through State’s obligation has
potentiality for eradicating illiteracy which is the root cause for vari-
ous social maladies.
Prohibition of traffic in human beings and forced labour (Article
23) and of employment of children below the age of fourteen years in
factories, mines or any other hazardous (Article 24) have clear aim at
protection against exploitation.
Guarantee of freedom of religion under Articles 25 includes provi-
sions enabling the state to launch social welfare measures, reforms,
temple entry schemes and regulation of non-religious activities asso-
ciated with religion. Subjection 0° religious freedom, both individual
and denominational, to interests »; public order, morality and health
and prohibition upon the state to maintain religion or to impart reli-
gious instruction in public schools have potentialities for moulding
social dimension of religion. (Articles 25-28) The rights of all linguistic
and cultural communities (sections of citizens) to conserve their lan-
guage and culture (Article 29) and rights of religious and linguistic
minorities to establish educational institutions of their choice (Article
30) have clear perception about identity retention and continuance of
traditional heritage.
Provisions on property right [Articles 31-A to 31-C] have remnants
of policies to subordinate property right to the cause of economic jus-
tice. Special methods have been employed to protect agrarian and eco-
nomic reforms legislation from constitutional litigation on grounds of
violating specific Fundamental Rights.
Sometimes, the generally worded clauses have enabled judicial
refinement of their content. For example, the text of Article 32 (1),
which states, “The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred by this part is
guaranteed” by not confining the right to the actual victim has ena-
bled rejection of the rule of locus standi. Enormous development in the
form of Public Interest Litigation could take place because of the tex-
tual support.
can be
Very clear and inspiring guidance for social transformation
their non-
located in the Directive Principles of State Policy. In spite of
al in the
enforceability through judicial remedies, they are “fundament
192 Orientation andAI
Constitution’s a Response to Social Transformation
aR i a RA LITER. BER
governance of the country and it shall be the duty of the State to apply
these principles in making laws” (Article 37). The approach of State s
duty requires it to be a hub of social welfare activities and an engine of
dynamism to herald vital changes. Article 38, which contains a grand
vision of building a welfare state, proclaims:
(1) The state shall strive to promote the welfare of the people by
securing and protecting as effectively as it may a social order
in which justice, social, economic and political shall inform
all the institutions of national life.
(2) The state shall, in particular, strive to minimise the inequali-
ties in income, and endeavour eliminate inequalities in sta-
tus, facilities and opportunities, not only amongst individu-
als but also amongst groups of people residing in different
areas or engaged in different vocations.
The content of almost all the Directives reflect determinations and
directions for social transformation. Broad groups of the policies are
as follows: first, policies on economic justice and socialistic pattern
of society, which aspire for distribution of material resources of the
community to best subserve the common good and avoidance of con-
centration of wealth and means of production to the common detri-
ment.*4 Right to adequate livelihood for all and equal pay for equal
work are the corollary policies.** Second, policies for labour welfare
are laid down which include securing right to work and public assist-
ance in case of unemployment, old age sickness, etc. ; securing of just
and humane conditions of work, and maternity benefit; living wages
for workers to ensure decent standard of life and full enjoyment of
leisure and social and cultural opportunities; participation of workers
in management; avoiding, the abuse of strength and health of work-
ers by not subjecting to unsuitable works. Third, protection of inter-
ests of children is envisaged by ensuring early childhood care and by
providing opportunities and facilities for their healthy development
with freedom and dignity without moral and material abandonment
[Articles 39(f) and 41]. Promotion of educational interests of Scheduled
Castes Scheduled Tribes and other weaker sections is also aimed at
(Article 46). Fourth, women’s protection is envisaged by aiming at
equal rights in the matter of means of livelihood, pay and humane
conditions at workplace including maternity benefits. Uniform Civil
Code is also aspired for, probably to benefit women (Article 44). Fifth,
State’s duty to raise the levels of nutrition, standards of living and
“ Arts. 39(b) and (c); legislations passed for the implementation of these directives
have special protection under Arts. 31-C against constitutional challenges.
8 Arts. 39(a) and (d) and Art. 41.
*° Arts. 39(e), 41, 42, 43, 43-A.
The textual basis, persuasion and mechanism
Se
i ascarn ehnisi h n 193
access to public health by including the policy of prohibition is envis-
aged. Sixth, protection of environment, organisation of agriculture
and animal husbandry, prohibition of cow slaughter and protection of
monuments and other national heritages are contemplated [Articles 47,
48 and 48-A]. Seventh, reforms in governmental structure are thought
of by providing for organisation of village panchayats, equal justice and
free legal aid, separation of judiciary from executive and promotion of
respect to international law, peace and security (Articles 40, 39-A, 50
and 51).
Fundamental Duties (Article 51-A) unfold participative approach to
social transformation by appealing to people’s positive duty in the task
of raising the nation to higher levels of endeavour and achievement by
implementing the multicultural, developmental, non-violent and eco-
friendly policies. The duty to promote harmony and spirit of brother-
hood amongst all the people of India transcending religious, linguistic,
regional and sectional diversities and to uphold national unity reflect
the inevitability but controlled place of cultural identities to suit the
parameters of social transformation.
Quite suitable to the concept of Activist State shouldering the respon-
sibility of socio-economic reforms of far-reaching importance, parlia-
mentary form of government at both the levels and strong Central
Government as unique feature of federalism, reflecting a top-down
model, have been envisaged in the Constitution. It is only since 1990s
that institutional support to the programmes of welfare state through
grass root democracy is emerging to fill the gap through bottom-up
strategy. Since in parliamentary form of government legislative initia-
tive is largely handled by treasury bench, people’s choice of a party or
group of parties to power is generally regarded as choice of new leg-
islative policies as well. The type of bicameral system chosen for cen-
tral legislature is such that in the legislative process relating to pass-
ing of Ordinary Bills and Money Bills, the voice of the popular House
is allowed to prevail upon that of second chamber that reflects state
interests.*7 President’s power of asking the Parliament to reconsider
the Bill is also not blocking the passage of the Bill but operates only
as a safeguard against hasty decision.* The system of bicameralism is
prevalent only in five states and can be adopted or abolished by ordi-
nary law made by Parliament based on special resolution of the con-
cerned state legislative assembly (Articles 168 and 169). The Legislative
Council has the power only of delaying the passing of the Ordinary
n the two Chambers by joint

87 Provision for resolution of deadlock, if any, betwee
n. See, Arts. 108 and
sitting or final say in financial matters has created this positio
109.
8 Art 111.
194 Response to Social
Constitution’s Orientation andaie Transformation
la
i A ND iB Pe SERIE SE
Bill for three months’ and not defeating it absolutely (Article 197).
Governor's power of asking for reconsideration by the state legislature
or reserving it for the consideration of President is also operating only
as a safeguard measure rather than instrument of blocking the legis-
lative policy choice (Article 200). The conferment of legislative power
subject to the provisions of this Constitution under Article 245 read
with Articles 13 and 37 makes it clear that the constitutional limitations
and guidelines shall be taken cognisance of in the legislative process.
Since the executive power is considered to be coextensive with that
of legislative power, and is conferred subject to the provisions of the
Constitution, its cooperative posture with legislature especially in the
matter of progressive laws should be amply forthcoming.” The factor
of continuity of the legal system subject to the imperatives of changes
brought by the Constitution has been recognised in Article 372. While
this allowed smooth transition into the era of Constitution, the respon-
sibility of bringing the existing laws to conform to the Constitution by
appropriate modification or repeal was laid upon the President.
Constitutional arrangement for unique federal system is another
contrivance for supporting the social transformation objective. First,
the centrally monitored mechanism of issuing directions and enforc-
ing them with rigorous sanctions such as President’s rule has poten-
tiality of ensuring compliance with the Constitution and laws in the
course of state administration (Article 256 read with Articles 365 and
356). This represents top down model of ensuring constitutionalism
through compulsion, and has great relevance for implementing the
centrally sponsored legislative measures and protecting the human
rights values and imperatives of multiculturalism.” Since Central
Government is exclusively vested with legislative powers for eradicat-
ing untouchability and trafficking in human beings (Article 35 read
with Articles 17 and 23) and for dealing with subjects of national impor-
tance listed in Union List of Seventh Schedule the direction mecha-
nism has competence to contribute towards success in social reforms.
Since identification of Scheduled Castes and Scheduled Tribes is done
by the Central Government (Articles 341 and 342), the states depend
upon Central Government's appropriate action to alter the list or its
*® Arts. 73 and 154; Ram Jawaya Kapur v. State of Punjab, ATR 1955 SC 549: (1955) 2
SCR 225.
* According to T. Devidas, “The Indian model of federalism would place the states
in the position of only subordinately useful entities vested with some real powers, but
under the obligation to function in accordance with the provisions of the Constitution.”
“Administrative process vis-a-vis social justice” in N.R. Madhava Menon (Ed.), Social
Justice and Social Process in India (Indian Academy of Social Sciences, Allahabad 1988)
280 at p. 286; also see, Mahendra P. Singh, “Federalism, Democracy and Human Rights:
Some Reflections” (2005) 47 JILI 429.”
The textual basis, persuasion and mechanism 195
functioning.” Secondly, the scheme for distribution of legislative pow-
ers between two layers of Governments has tended to uphold uni-
formity in policies of national importance and prevalence of central
law over state law in case of conflicts. Thirdly, both the Central and
State Governments are burdened with the responsibility of protecting
the rights of people and bringing various welfare measures envisaged
under Part IV of the Constitution. Although diversities arising from
federalism are inevitable, fairly uniform standard of development in
all states in the matter of access to basic necessities of life such as food,
health, education, livelihood etc. is contemplated in Article 38(2). The
legislative subjects in State and Concurrent Lists are giving opportuni-
ties for regional experimentations in social reform measures. Fourthly,
the economic reform legislation passed by the states get protection
against Part III based challenges only when they get President’s assent
or get incorporated into Ninth Schedule by constitutional amendment.
This requires cooperation of the Central Government and Parliament.
Fifthly, the distribution of financial resources between Central and
State Governments has been so arranged that national planning and
implementation of developmental projects has emerged as the com-
mon phenomenon. States’ dependence for grants of fiscal resources
has compelled cooperative federalism. Sixthly, national unity is an
objective framed for preservation to which social transformation shall
also conform. Seventhly, territorial organisation of states is given a
flexible treatment in the Constitution in order to keep it with the wave-
length of social transformation emerging from linguistic and ethnic
pressures from local communities. It is quite noteworthy that ongo-
ing federalising process, by politically accommodating ethnic and lin-
guistic identities, has provided an effective method of managing and
resolving conflicts.* Asymmetrical federalism by conferring special
position to some of the states? and structure of multilevel federation
by accommodating Autonomous Districts and Councils within some
of the states have unique strategies for social transformation. Linked
with democracy, federalism has contributed to the cause of multicul-
turalism. While the concept of federalism itself has undergone change
iy
% FE. V. Chinnaiah v. State of A.P. (2005) 1 SCC 394.
and Strategies
P Ishwara Bhat, “Multicultural Federalism in India: Values, Trends
arya, “Forms of
in (2001) 2 Kerala Journal of Legal Studies 23; also see, Harihar Bhattach
(2005) 4:1 Canadia n Diversity , Winter
Multiculturalism and Identity Issues in India”
46 at p. 47.
Maharashtra, Nagaland,
fe iis 370, 371-A to 371-H for states of Jammu & Kashmir,
. in
Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh
* Gurpreet Mahajan, “Indian Exceptionalism or Indian Model: Negotiating
Cultural Diversity and Minority Rights in a Democratic Nation-State in Will
lism in Asia (Oxford University Press,
Kymlicka and Baogang He (Eds.), Multicultura
New York 2005) 288.
196 Constitution’s OrientationaOR Transformation
and Response to SocialASI
ae 1 ele eC OA IRE ADEE ES
for meeting the requirement of social transformation its instrumental
role for the same task is crucial.
That top down model of federalism is now supplemented by three-
layered Panchayat Raj Institution (PRI) and Nagarpalika. Elaborate
provisions have been made for compulsory grass root democracy
with periodic election, non-intervention by government, local decision
making, representation to the marginalised sections including women,
and planning and implementation of programmes relating to social
justice, public health, and equitable use of community resources.”
Indian Constitution’s scheme for multiculturalism is spread over
provisions on human rights, directive principles, fundamental duties,
democracy, federalism and special provisions for the tribal commu-
nities. Secularism, equal language rights and protection of ethnic
minorities through measures of self-government, social justice and
development have been employed as major tools in the constitutional
text for developing a happy harmonious society.”
Another crucial provision for accommodating and initiating social
transformation is relating to the power and procedure to amend the
Constitution. Peaceful and substantial changes in and through the
Constitution could occur by using Article 368. The provision has
traversed a via media policy in between rigidity and flexibility. The
determination to allow future generation to alter the supreme law
by special method in order to respond to the challenges of changing
times reflects Constitution makers understanding of the Constitution
as a living instrument.
4.4 The context and content of constitutional amendments for

social transformation
Accommodating for future changes through the mechanism of con-
stitutional amendment is one of the prominent requisites of an ideal
constitution. A century of amendments that have been incorporated
into the Constitution in a span of 57 years’ exhibit the polity’s incli-
nation to upgrade the quality of the supreme law for better situation.
Although there were aberrations of authoritarian amendments in the
past, the way in which they were rectified by subsequent amendments
or by judicial review to reinforce the enduring values with more exten-
sive safeguards reflects the maturity and competence of a throbbing
democracy. That the thrust towards social transformation is clear in
* Arts. 243 to 243-ZG; see also infra, Ch. 19.

*° Arts. 14 to 16, 19(5), 25-30, 44, 51-A, 244, 343-351, V and VI Schedules; also
see, P. Ishwara Bhat, “Constitutional Multiculturalism—Conceptualisation and
Jurisprudential Significance” (1999) 4 National Capital Law Journal 1.
*” For elaborate discussion see infra, Chs. 5 to 8.
The context and content of constitutional amendments 197
eee
major constitutional amendments can be inferred by looking to their

context and content. A brief theme-wise survey is attempted for this
purpose.
4.4.1 Property amendments

The issue of subjecting the property right to the goal of economic justice
had occupied considerable space in early constitutional development.
While the original property right clauses had such orientation, narrow
and legalistic interpretations® of them by judiciary had repeatedly
obstructed the process of realising this goal. Equality clause had been
used in Kameshwar Singh to quash the Bihar Land Reforms Act, 1950
which had provided for differential rates of compensation to land own-
ers whose property had been acquired in the course of land reforms.
Nehru’s fury that the magnificent Constitution was kidnapped and
purloined by the lawyers'® symbolised dissatisfaction of the people
and their representatives. Finding that the protection accorded to land
reform legislations was inadequate, Articles 31-A and 31-B were added
by the Constitution (First Amendment) Act, 1951. Special technique of
the Ninth Schedule protection was employed for the purpose to pro-
tect the agrarian and economic reform legislation from constitutional
litigation. From a modest list of 13 legislation originally incorporated,
its size has grown stupendously to 284 because of subsequent addi-
tions through constitutional amendments. Some of the entries are con-
troversial, as they do not fall within the culture, spirit and pattern of
economic reforms. Because of the interpretation of the words “taken
possession of” and°“acquisition”in Subodh Gopal'** and Dwarkadas'”
to include the situations of economic regulation of substantial type
even for limited period, there was a need to provide through insertion
of Clause 2-A to Article 31 by the Constitution (Fourth) Amendment
Act, 1955 to the effect that when ownership was not transferred it did
not amount to deprivation of property. In order to counter the judi-
cial approach in Bella Banerjee’® insisting on just and equivalent com-
pensation in case of acquisition of property it also made the question
of adequacy of compensation in Clause (2) non-justiceable. The pro-
tection given to laws reforming estate under Article 31-A was found
to be inadequate because of pedantic view taken about that term in
1989) at
8 SP Sathe, Constitutional Amendments 1950-1988 (N.M. Tripathi, Bombay
pp. 16.
°° Kameshwar Singh v. State of Bihar, AYR 1951 Pat 91.
1 Parliamentary Debates, Vol. XII (Part 2) 16 -5-1951.
1 State of W.B. v. Subodh Gopal Bose, AIR 1954 SS92
1954 SC 119.
102 Dwarkadas Shrinivas v. Sholapur Spg. & Wog. Co. Ltd., AIR
3 State of W.B. v. Bella Banerjee, AIR 1954 SC 170.
198 Response to Social
Orientationthandpt
Constitution’s lec Transformation
iE 0S Bes hay eR Sswe MSA aN es
Karimbil Kunhikoman’*+. By amending the definition of the term “estate”
to include ryotwari holding also, the Constitution (Seventeenth)
Amendment Act, 1964 covered up the deficiency.
In view of the judgment in Rustom Cavasjee Cooper v. Union of India‘
which opened up the issue of justiciability of compensation by scru-
tinising whether there was compensation or fraudulent expropriation
the necessity of substituting the word compensation by a neutral word
“amount” was felt by the makers of the Constitution (Twenty-fifth
aac tin
to Privy Purses through the Constitution (Twenty-sixth Amendment)

Act, 1971 is another radical measure to establish an egalitarian soci-
ety rejecting the vestiges of hierarchy. The Constitution (Forty-fourth
Amendment) Act, 1978 repealed Articles 19(1)(f) and 31, manifestly to
strengthen the commitment to socialistic pattern of society. The sober
status given to property right in Article 300-A could not drive off the
arguments relating to reasonableness in the application of property
expropriation legislation.” Although the decline of property right in
the scale of values has its own impact on constitutional litigation on
property right, in the light of liberalisation, the policy of legislative
assurance has come into vogue for fair return to property acquired.
Retention of clauses regulative of property right under Articles 31-A
and 31-C has served the cause of economic justice. The whole story of
property right amendments and its ultimate “deletion” from Part III
of the Constitution depicts the saga of representative bodies to bring
reforms in property relations, the conflicts with conservative approach
of judiciary and gradual triumph of popular measure to control prop-
erty owners’ interests for the larger benefits of the society. Property
became the first site for removing the obstacles of conservatism in the
path of mammoth reforms. The creative and facilitative contribution
of constitutional amendments in shifting the focus from property to
welfare and liberty is one of the clearest examples of instrumental role
of law.
"4 Karimbil Kunhikoman v. State of Kerala, AIR 1962 SC 723: 1962 Supp (1) SCR 829.
5 (1970) 1 SCC 248: AIR 1970 SC 564.
0° Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461.
State of Maharashtra v. Basantibai Mohanlal Khetan, (1986) 2 SCC 516: AIR 1986 SC
1466; also see, P. Ishwara Bhat, Fundamental Rights (Eastern Law House, Kolkata
2004)
at pp. 531-33.
The context and content of constitutional amendments 199
5 Rs a re la
4.4.2 Reservation policy and amendments
Provisions on reservation policy constituted another site of frequent
amendments’® either to overcome restrictive interpretations or to
expand the area of its operation both in time and space. Political res-
ervation to the SC/STs has been extended decennially from time to
time while the original intention was to confine its prevalence only
for first 10 years’. In response to Champakam Dorairajan*® decision rul-
ing out state’s power to provide for reservation in édti¢ational insti-
tutions Clause (4) was added to Article 15 by the Constitution (First
Amendment) Act, 1955. Three amendments were brought to scale down
the effect of Indra Sawhney judgme
on the question
nt s of levels and
quantum of reservation in the matter of public employment.” In order
to extend reservation policy to the level of promotion for SC/STs Clause
(4-A) was added by the Constitution (Seventy-seventh Amendment)
Act, 1995. When consequential seniority was not given because of the
formal equality rule in Ajit Singh case’ the Parliament again amended
this clause in 2001 by safeguarding the seniority of the reservation
promotees. For ensuring that relaxation of promotion rules will not
be hit by the requirement of safeguarding administrative efficiency
under Article 335 through the application of Preeti Srivastava’? ruling,
a proviso was added to that effect by the Constitution (Eighty-second
Amendment) Act, 2000. Unusual method of using Ninth Schedule tech-
nique was employed by Constitution (Seventy-sixth Amendment) Act,
1994 to safeguard the Tamil Nadu legislation on reservation exceed-
ing the 50 per cent rule. The Constitution (Eighty-first Amendment)
Act, 2000 facilitated to fill up backlog vacancies by going beyond the
50 per cent rule as an extraordinary measure by adding Clause (4-B).
The fact that as many as five amendments were brought in a span of
six years’ in the matter of reservation in public employment speaks
about the readiness of Parliament and enthusiasm of the political par-
ties to respond to the cause of assisting the SC/STs going beyond the
balanced approach taken in Indra Sawhney which aimed to satisfy the
interests of the society as a whole along with implementing the reser-
vation policy. The Supreme Court has upheld the constitutionality of
the amendments to Article 16(4) in M. Nagaraj v. Union of India™> but
108 As many as 16 amendments have been on the matter of reservation.

19 State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.
SCC 217: 1992
110 Jt had been ruled in Indra Sawhney v. Union of India,1992 Supp (3)
not be extende d to the level
SCC (L&S) Supp 1: AIR 1993 SC 477 that reservation shall
s. j
of promotion and that reservation shall not exceed 50 per cent of vacancie
1996 SC 1189 also see, Ajit
M1 Ajit Singh Januja v. State of Punjab, (1996) 2 SCC 715: AIR
3471.
Singh II v. State of Punjab, (1999) 7 SCC 209: AIR 1999 SC
AIR 1999 SC 2894.
112, Preeti Srivastava (Dr.) v. State ofM.P., (1999) 7 SCC 120:
Ch. 11.
113 (2006) 8 SCC 212; see, for further discussion, infra,
200 Constitution’s Orientation ADE Transformation
and Response to Social S
Eo N50 2 9 ec EN MENS BEET OSES
subjected the state measures to a scrutiny about the existence of com-
pelling state interest.
Another landmark development is inclusion of Clause (5) to Article
15 by theConstitution (Ninety-third Amendment) Act, 2005, which ena-
“bles the state to make special provision through law for the advance-
ment of SEBC, SC/STs in the context of admission to educational insti-
tutions including private educational institutions whether aided or
unaided by the State, other than the minority educational institutions
under Article 30(1). Although there was public agitation against this
amendment, unanimity of political parties on the policy had enabled
its smooth sail. There have been criticisms on this measure on account
of undermining the interests of merit, imposition of unjustified burden
upon the private institutions, which also have right of administration
including admission, and exclusion of the minority institutions from
the social responsibility of participating in reservation programme. Its
constitutional validity was examined by the Supreme Court in Ashoka
Kumar Thakur" on these counts. The Court upheld the constitutional-
ity of the amendment insofar as it is applicable to public educational
institutions. | re
~The overall development exhibits that political decision-making has
more traversed the path of vote bank appeasement rather than using
the instrument of reservation only as a means to an end and a policy
to be balanced with other egalitarian norms for building a harmoni-
ous society equipped with competitive ability to face the challenges
of globalisation. Any way, use of amendatory power to go ahead with
pro-active policy regarding reservation exhibits its role as a catalyst in
4.4.3 Expanding the welfare canvas

Inclusion of the term “socialist” in the Preamble and Clause (2) to
Article 38 by constitutional amendments has reinforced the commit-
ment to socialistic pattern of society. Incorporation of Article 48-A
gave a great fillip to the invigorating jurisprudence of environmental
protection. Addition of 39-A has expanded the opportunities to have
access to equal justice and free legal aid. By prescribing fundamental
duties of citizens to traverse the path of good citizenship and balanced
modernisation, the Article 51-A, added by 42nd Amendment, has
aimed to develop the welfare canvas through people’s participation.
About these attempts of retraditionalisation, Werner Menski comments,
“One could read almost all of these statements on Hindu dharma, which
shows that recent developments in Indian constitutional law have
"4 Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1.

The context and content of constitutional amendments
E E SS: (Seb okE geen 201
begun to combine, more explicitly than ever before, new elements of
the modern Constitution and ancient holistic concepts.”"5 The place
of newly incorporated right to free and compulsory primary educa-
tion under Article 21-A is also crucial for societal preparation for bet-
ter order."* The value addition made by amendments has significant
social content.
4.4.4 Strengthening of democracy

The Amendments aimed at strengthening of the safeguards against
abuse of power to impose or implement emergency, combating against
political defection, and introduction of grass root democracy with com-
pulsory and periodic election through Panchayati Raj and Nagarpalika
Amendments have widened the base and efficacy of democratic insti-
tution in India.’” In turn, the competence of participatory democracy
for pro-people social transformation is revalorised. Their socio-polit-
ical inputs consist in establishing mechanisms for better people-gov-
ernment relations, creation of additional forum or method of account-
ability, and expanding of people’s participation in decision making or
policy implementation.
4.4.5 Socio-political preparation for amendments

The change management involved in some of the constitutional amend-
ments reflects efforts to take people into confidence by inquiry and
discussion initiated and coordinated by special committees and com-
missions constituted for the purpose. Swaran Singh Committee pre-
ceding the Constitution (Forty-second Amendment) Act, 1976, Sarkaria
Commission on Centre-State Relations, 1985 and National Commission
to review the working of the Constitution (NCRWC), 2000 headed by
Justice M. N. Venkatachaliah have contributed to public discussion on
need and desirability of amendments. But majority of amendments
are not preceded by systematic popular discussion, but are outcome of
limited discussion within Parliament although with media publicity.
While the Swaran Singh Committee recommendations could not be
discussed in free atmosphere due to internal emergency situation, the
outcome of the latter two in terms of constitutional changes has not
been enormous.
of Asia and
"5. Werner Menski, Comparative Law in a Global Context: The Legal Systems
Africa (Platinium, London 2000) at p. 205.
Act, 2002.
"6 Inserted by the Constitution (Eighty-sixth) Amendment
t Act, 1978; the Constitution (Fifty-
117 The Constitution (Forty-fourth) Amendmen t Act,
Act, 1985; the Constitution (Seventy-third) Amendmen
second) Amendment
dment Act, 1992.
1992; the Constitution (Seventy-fourth) Amen
202 Constitution's Orientat Transformation
ion and Response to SocialPRE
alm ilps ac pel ANNE LES NS
The NCRWC recommendation for incorporation of right to primary
education as Fundamental Right has materialised. Its suggestion for
scheme of rural employment guarantee is also given practical shape
and legal status in the form of a law."* The Commission expressed dis-
appointment about inadequate implementation of the constitutional
goals. Three observations made by NCRWC can be remembered here
regarding building up a developed and inclusive society with commit-
ment to human rights and welfare, “The first and the foremost need
is to place the citizens of this country at centre stage and demonstrate
this prioritisation in all manifestation of governance;” “The sociology
of pluralism is not inimical to strong democracy, but, on the contrary,
is in itself a strong sustaining factor of democracy. It is essential to
promote participatory institutions ”; and “In the changing context of
globalised economy, the Fundamental Law should address itself in
action to relocate the sources of the social obligations of the State.” As
a part of implementation strategy for the Directive Principles it sug-
gested annual scrutiny of the governmental efforts through interactive
seminars participated by civil society. It should be noted that the need
to fill the gap between people and the Constitution shall be properly
addressed as a part of social transformation discourse and exercise."”?
General elections have also supplied opportunities for people’s
choice about constitutional amendments. Election manifestos of politi-
cal parties often refer to future constitutional amendments. Although it
is not well established that political promises really influence people’s
voting behaviour, parties in power claim people’s specific mandate to
bring the promised constitutional change after the election. Abolition
of Privy Purse and of right to property and restoration of democratic
features of the Constitution after the internal emergency have been
the products of ballot. Public debate involved in the electoral process
makes people participants in the change process.
4.5 Basic Structure Theory: A grand formula to balance between

continuity and change
A path breaking approach of the Supreme Court adopted in Kesavananda
Bharati’? to save the Constitution from abuse of amendatory power
essentially reflects the concern of the civilised legal system to preserve
the gains of culture and civilisation and to maintain intact the just
institutions meticulously built by the society with great expectations
along with accommodating desirable changes. The approach consisted
118
The National Rural Employment Guarantee Act, 2005; see also infra, Ch. 17.
"” P. Ishwara Bhat, “Towards bridging the gap between People and the Constitution”
(2007) 1 Legal Opus 14.
120 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461.
A grand formula to balance between continuity and change 203
in the Basic Structure Theory, which stated that the essential or basic
features of the Constitution are beyond the purview of Parliarnent’s
power to amend the Constitution because of its inherent limitation
that a representative body could not possess full powers of the peo-
ple and that the Constitution possesses paramount features or iden-
tity that should not be defaced and defiled. Its genesis can be traced
to the doubts expressed in the dissents expressed by Hidayatullah
and Mudholkar, JJ. in Sajjan Singh case’ that the power could not be
absolute. The theory of unamendability of Fundamental Rights pro-
pounded by the Supreme Court in Golaknath'* had some logical infir-
mity due to equating the constituent power to legislative power. This
was rectified by the thirteen-Judge Bench of the Supreme Court in the
historic Kesavananda decision by putting the power of judicial review
on sound pedestal and on larger canvas along with upholding the con-
stitutionality of the 24th Amendment. The majority (7:6) built this the-
ory primarily by looking to the Constitution’s commitment to human
dignity, social transformation and multiculturalism as envisaged in
the Preamble, Fundamental Rights and the Directive Principles of
State Policy. The dynamics of reforms through protection of human
rights and ensuring of welfare by democratic institution was greatly
emphasised by the judges. S.M. Sikri, CJI observed:
“TI must interpret Article 368 in the setting of our Constitution, in
the background of our history and in the light of our aspirations and
hopes, and other relevant circumstances. No other constitution in the
world is like ours. No other constitution combines under its wings such
diverse peoples, numbering now more than 550 million, with different
languages and religions and in different stages of economic develop-
ment, into one nation, and no other nation is faced with such vast socio-
economic problems... I need hardly observe that I am not interpreting
an ordinary statute, but a Constitution which apart from setting up a
machinery for government, has a noble and grand vision. The vision
was put in words in the Preamble and carried out in part by conferring
Fundamental Rights on the people. The vision was directed to be fur-
ther carried out by the application of directive principles."
The judiciary made extensive reference to natural law philosophy,
historical evolution, political thoughts, experiences of parallel juris-
dictions and social implications of the Constitution in the course of
enquiry into purpose of state and democratic governance. Hegde and
21. Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
12 1.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643.
14 and 15; in Para
23 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, paras tution's
analysis about Consti
506 Shelat and Grover, JJ. rely on Granville Austin’s
ound, the Preamble, the entire
orientation to social revolution, the historical backgr
to identify the basic elements
scheme of the Constitution, and the relevant provisions
of the constitutional structure.
204 Constitution’s Orientation and Respo nse to Social Transformation
rr
eee e e
re for
Mukherjee, JJ. observed, “Every Constitution is expected to endu
is not possible
a long time. Therefore, it must necessarily be elastic. It
re-
to place the society in a straitjacket. The society grows, its requi
ments change. The Constitution and the laws may have to be changed
to suit those needs. No single generation can bind the course of the
generations to come.”"*4 They agreed with the Constitution’s character
as a social document and held that to implement the duties imposed
on the State under Part IV, it might be necessary to abridge in certain
respects the rights conferred on the citizens or individuals under Part
Ill, as in the case of incorporation of Clause 4 in Article 15 to benefit
the Backward Classes and Scheduled Castes and Scheduled Tribes
and the amendment of Article 19(2) with a view to maintain effec-
tively public order and friendly relations with foreign States.’ They
held that Parliament had no power of emasculating the Constitution
by destroying the democratic character of the polity, depriving the
individual freedoms and revoking the mandate to establish a welfare
state and egalitarian society. P. Jaganmohan Reddy, J. while concur-
ring, looked to the historical evolution of the constitutional values
and observed, “In the frame of mind and with the recognition of the
dominant ‘mental make up and the silent immaculate premise of our
outlook’ which became the outlook of the people, the framers of our
Constitution could not have provided for the freedoms inherent as a
part of the right of civilise¢-man to be abrogated or destroyed. The
interest of the community and of the society will not be jeopardised
and can be adjusted without abrogating, damaging, emasculating or
destroying these rights in such a way as to amount to abrogation of the
fundamental rights.”"”7
H.R. Khanna, J. referred to the speech of Jawaharlal Nehru deliv-
ered in the context of bringing First Amendment to the effect, “A
Constitution which is responsive to the people’s will, which is respon-
sive to their ideas, in that it can be varied here and there, they will
respect it all the more and they will not fight against, when we want to
change it.” He tried to develop limitation on the power to amend the
24 Para 650.
0S Ibid, at 667 “We find it difficult to accept the contention that our Constitution
makers after making immense sacrifices for achieving certain ideals made provision
in the Constitution itself for the destruction of those ideals. There is no doubt as
men of experience and sound political knowledge, they must have known that social,
economic and political changes are bound to come with the passage of time and the
Constitution must be capable of being so adjusted as to be able to respond to those
new demands. Our Constitution is not a mere political document. It is essentially a
social document. It is based on a social philosophy and every social philosophy like
every religion has two main features, namely, basic and circumstantial.”
26 Para 682.
27 Para 1198.
A grand formula to balance between continuity and change
i sea NR enh nea scl ne pea 205
Constitution in people’s will, which was accommodating peripheral
changes without sacrificing its core identity. For both continuity and
change people’s will provided nourishment. He reasoned, by citing
Carl J. Friedrich, that Constitution as a living and organic system was
prone to experience, development and decay of certain parts, yet the
basic structure or pattern would remain the same, and that with the
perish of essential components it would face destruction.* Analysing
the importance of words “the Constitution shall stand amended”, he
pointed out the need to have meaningful continuation of other provi-
sions of the Constitution even after amendment.” He elaborately dealt
with the position of right to property as subordinate to the concept of
social good that enables peaceful and structural changes in property
relations for filling the wide gap between the haves and have nots, and
considered that right to property did not constitute part of essential
features of the Constitution.%° His approach of denying basic struc-
ture status to right to property designed the basic structure theory to
facilitate social and economic transformation. Thus, the majority was
clear in moulding the balance between continuity and change.
The dissenting views were pointing out the difficulty in the differ-
entiation between essential and inessential features of the Constitution
and Parliament’s competence to determine the same according to the
very feature of parliamentary form of government, as opposed to
finality of judicial determination. A.N. Ray, J. observed, “Changes in
the Constitution are thus actuated by a sense of duty to the people to
help them get what they want out of life. There is no destiny of man in
whose service some men can rightfully control others; there are only
the desires and preferences and ambitions that men actually have.
The duty to maximise happiness means that it is easier to give people
what they want than to make them want what you can easily give. The
framers of the Constitution did not put any limitation on the amend-
ing power because the end of a Constitution is the safety, the greatness
and well being of the people. Changes in the Constitution serve these
great ends and carry out the real purposes of the Constitution." The
other dissenting judges also expressed their trust with Parliament in
the matter of safeguarding the Constitution's identity and achieving
its objectives in order to suit to the requirements of changing times."
That they were not averse to keeping the continuity of basic features is
reflected in judgments rendered by some of them in subsequent cases
28 Carl J. Friedrich, Man and His Government (1963) at p. 272.
29 Paras 1437-38.
130 Paras 1488-95.
131 ALN. Ray, J., para 922; Palekar, J., para 1321-22.
132 Para 959 also see, para 922.
d, JJ.
133 Palekar, Mathew, Beg, Dwivedi and Chandrachu
206 and Response to Social Transfor
Constitution’s OrientatiPOonNAMES mation
C ea L oh BPA Aes NAMES fra IE =
like Indira Nehru Gandhi3+ and Minerva Mills, especially when they
realised that what was brushed aside as an argument of fear was not
a fictitious one but an unfortunate reality that haunted through the
grossest abuse of parliamentary institution.
Emergence of basic structure doctrine as a unanimous balancing
wheel to uphold continuity even amidst change is not only one of the
feats of judicial achievement but is also a replica of general process
of social transformation that invigorates through fulfiling the desire
to protect permanent will of the community along with responding
to the urge for change. Between rigid position of unamendability
and flexible situation of easy method of amendment, the framers had
struck a balance comparable to a safety valve of an engine that rescues
from exploding pressure built within but would not be allowing the
operation of machine with great ease that renders it a loose instrument.
The judiciary provided a balancing dimension to the methodology of
change for comfortable result. As A. Lakshminath views, “Change
with continuity means progress.”"° It also means responsibility shared
between Parliament and the Court. S.P. Sathe comments, “How to sus-
tain the basic structure doctrine without sacrificing democracy is a
question the Court and Parliament will have to solve by cooperation.
One way to do is to entrust matters of policy to Parliament and matters
of principle to the Supreme Court.” The need to go beyond the legal-
istic approach and assess the considerations of propriety by a vision
and knowledge of dynamics of social change will have to be realised
by the judiciary in handling the basic structure scrutiny with a states-
man’s skill. Sathe also views that interpretation of a Constitution by
looking to the political, historical and social aspects, provide justifica-
tions for basic structure, limitation for saving the constitution from
destruction and defilement by temporary majority."* Udai Raj Rai con-
siders basic structure theory as enabling withdrawal of legitimacy on
_those changes, which have the effect of surreptitiously altering the very
system of governance in which people have put in their faith. While
it has saved the constitutional jurisprudence from the vices of exces-
sive formalism and textualism, its pro-active role in checking subver-
34
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1: AIR 1975 SC 2299.
35
Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591: AIR 1980 SC 1789.
136
A. Lakshminath, Basic Structure and Constitutional Amendments (Deep & Deep
Publications, New Delhi 2002) at Dye.
57 §.P. Sathe, Judicial Activism in India (2nd Edn., Oxford University Press, New
Delhi 2002) at p. 83.
'S S.P. Sathe, Constitutional Amendments 1950-1988 Law and Politics (N.M. Tripathi,
Bombay 1989) at p. 94.
A grand formula to balance between continuity and change 207
aR ee TTIENO BEE
sion of democracy shall be exercised with greatest responsibility and
circumspection.%9
As applied in Kesavananda itself and in subsequent cases, the basic
structure theory is not an instrument of conservatism but an approach
that filters out changes that undermine the very foundation of the
Constitution.“ In Indira Nehru Gandhi exclusion of judicial review of
election cases pertaining to President, Prime Minister and Speaker was
struck down in order to uphold democratic feature of the Constitution."
In Minerva Mills case the Forty-second Amendment's policy of protect-
ing the legislations implementing any of the Directive Principles from
the constitutional litigations based on rights under Articles 14, 19 and
31 was nullified by application of the basic structure doctrine. The
Supreme Court reasoned that balance between Part III and Part IV of
the Constitution itself constituted basic structure of the Constitution
and that equality and freedom had also input for social transformation.
In Jilubhat'® and Basantibai cases’ relating to property right in the post-
repeal period, the Apex Court did not nullify the repeal of property
right from Part III, but insisted on reasonableness of law under Article
300-A in case of taking away of property. In reviewing the inclusion of
legislation into the Ninth Schedule, courts have exercised self-restraint
in case they were related to economic reforms." But nullifying of the
inclusions that are not related to protection of economic reforms has
added to the strength of constitutionalism."*® The nine Judge-Bench of
the Supreme Court in I.R. Coelho’? unanimously held that the consti-
tutional validity of the post—Kesavananda, Ninth Schedule laws could
be adjudged on the touchstone of basic structure doctrine by apply-
ing the direct impact and effect test, ie. rights test, which means the
form of an amendment is not the relevant factor, but the consequence
thereof would be determinative factor. Case to case review under this
parameter was suggested. Basic structure scrutiny of amendments to
1399 Udai Raj Rai, “In Defence of Judicial Judicial Activism: A Politico-legal Analysis
of the Doctrine of Basic Structure” (2006) 3 Indian Juridical Review 1 at pp. 35-37.
40 The impugned 24th, 25th and 29th Amendments were upheld, but a clause in
the 25th one that affected judicial review was struck down as it was offending the
basic structure.
141 Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1: AIR 1975 SC 2299.
142 Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591: AIR 1980 SC 1789.
43 Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp (1) SCC 596: AIR 1995 SC
516: AIR 1986 SC
1 State of Maharashtra v. Basantibai Mohanlal Khetan, (1986) 2 SCC
1981 SC 271; Bhim Singhji v.

M45 Waman Rao v. Union of India, (1981) 2 SCC 362: AIR
Union of India, (1981) 1 SCC 166: AIR 1981 SC 234.
MP 140; Bennett Coleman &
M6 =e Investment Corpn. Ltd. v. Union ofIndia, AIR 1981
Co. Ltd. v. Union of India, AIR 1986 Bom 321.
SC 861.
147 TR. Coelho v. State of T.N., (2007) 2 SCC 1: AIR 2007
reservation clauses in M. Nagaraj and Ashok Kumar Thakur has not tra-
versed the anti-majoritarian path of nullifying them, but has approved
them with cautious interpretation keeping in mind the constitutional
values.“8 Linking the basic structure with rights test has provided
additional dimension for balancing the change with continuity.
4.6 Contribution of governmental organs to social transformation

As the Constitution is put into operation through the working of leg-
islative, executive and judicial bodies created under it at various levels,
and much of its efficacy depends upon their contribution, the social
transformation performance of these bodies virtually determine the
fate of constitutional mission. It is but natural that a positive and activ-
ist approach of all these bodies goes a long way in the functioning of
aspirational frame of the Constitution. Instead of a detailed survey of
the working of democratic Constitution on the path of social transfor-
mation, a bird’s eye account is attempted as a brief performance audit.
In striving to fulfil the constitutional objective of social transforma-
tion, the Parliament and state legislatures have so immensely contrib-
uted through creation of supportive legislation that it is difficult to
make an exhaustive list of them. Legislation for eradication of social
evils like untouchability, bonded labour, and child labour; for deal-
ing with immoral traffick in women, female foeticide, dowry, domes-
tic violence, sexual crimes and indecent representations; for ensuring
harmonious society by protection of places of worship, protection of
minorities and their educational interests; for protection of children
against various types of abuses and delinquencies; for protection of
the social justice measures including land rights of tribals; and for
protection of environment, legal aid and employment guarantee have
great amount of input to uphold the social transformation objectives.
These laws have not only filled the gap of the organic law but have
made wider arrangements for their implementation. The legal envi-
ronment for enforcement of Directive Principles of State Policy has
also a promising outlook as it encompasses agrarian reforms, laws
on welfare of labour, laws for dealing with disparities in income and
wealth, and laws for promoting public health, environment, and rural
development.
On the multicultural front, the Parliament has acted with policies
of long-term vision and statesmanship. The questions about territorial
organisation of states have been dealt by Parliament under Articles 3
"8M. Nagaraj v. Union of India, (2006) 8 SCC 212; Ashoka Kumar Thakur v. Union of
India, (2008) 6 SCC 1. ;
'® The legislative policies of these enactments are discussed in appropriate
chapters of the present work.
Contribution
Se Rel ste of governmental organs to social transformation
si nla i i lan ale a 209
and + with mature policies of respecting the viable and dominant lin-
guistic and ethnic claims along with safeguarding national integrity.
The unwritten convention developed in this sphere harps on the factor
of consensus. In the matter of official language at the national level,
the language plan through legislative policy has avoided superimpo-
sition of any one of the Indian languages over other linguistic com-
munities. Laws relating to tribal communities have generally aimed at
strengthening the constitutional policies of security, self-government
and social justice by conserving the traditional grass root organisa-
tions of self-governance, by protection of land rights of forest dwellers,
their customs and social institutions and by policies of protective dis-
crimination. Budgetary allocations and Appropriation Bills that release
grants for reformatory measures also contribute to programme-based
measures. The partisan policies, which are sometimes ventured by
the states, to avail to their residents exclusive rights in the matter of
public employment and education, have been nullified by judiciary.
Barring these minor aberrations, there is impressive corpus of social
reform laws that supplement the constitutional text and spirit. Latest
trend in these laws is to involve the civil society or NGOs in the imple-
menting stage.
The administration’s role in implementation of these reformatory
laws is necessarily pro-active to suit to the result-oriented requirement.
Concerted application of the power of inquiry, investigation, supervi-
sion and prosecution; the distribution and delegation of powers in the
hierarchy in the administration; and the norms relating to exercise of
discretion have largely built mechanism for effective implementation.
The inherent power of the executive bestowed in the express provi-
sions of the Constitution or in the scheme of distribution of legisla-
tive power has also been enabling the administration to launch and
execute social justice policies. The system of unified administration
in the constitutional scheme for strict implementation of laws includes
power of the Central Government to issue administrative directions
under Article 256 to the states to exercise their executive power so as
to ensure compliance with laws and the Constitution and the power
to override the state administration by presidential proclamation
The
under Article 356 in case of non-compliance with the direction."
Panchayati Raj Institutions have been contemplated as fit instrumental-
resource con-
ities for localised implementation of environmental and
the slackness
servation laws and social justice programmes. However,
SCC 235: ; AIR 1995 SC 914;McMohini
1590 VN, Sunanda Reddy v. State of A.P., 1995 Supp (2) T.M.A. Pai Found ation v.
taka, (1992) 3 SCC 666: AIR 1992 SC 1858;
Jain v. State of Karna
State of Karnataka, (2002) 8 SCC 481.
, AIR 1955 SC 549: (1955) 2 SCR 225.
es os Sahib Ram Jawaya Kapur v. State of Punjab
152 T. Devidas, supra, n. 90 at p. 286.
210 Constitution’s Orientation Transformation
and Response to SocialdE
a I ie SNA RE IES. EPR I
to conform to rule of law regime, prevalence of corruption and nepo-
tism in administration and delay in implementation have been prob-
lematic. The systems of ombudsman, strong practice of supervision,
administrative transparency and accountability are yet to root firmly
for building the administration’s competence for law-induced social
transformation.
The “social transformation performance” of judiciary in India is of
high order, and is a key feature of public law in recent decades, that
earned for its approach a depiction of judicial activism because of its
attempt at fundamental recodification of power relations.’ The mag-
nitude and reach of judicial activism for social transformation are
exponential. The paradigm shift in Kesavananda towards social jus-
tice oriented interpretation (especially by elevating the importance of
Directive Principles) was the forerunner of impressive body of deci-
sional law that expanded content of human and welfare rights and
institutional preparation for their enforcement. Siri Gloppen*®* has pro-
vided a theoretic framework for evaluation of transformation perform-
ance of courts in new democracies. It consists of four stage questions:
whether marginalised community could voice their claims? Whether
courts respond to the marginalised groups’ concern? Do the courts
have capability to give legal effect to their social and welfare rights? Is
the compliance scene confidence building in its effect? Siri considers
that judiciary possibly cor+ributes by creating an arena for redressing
the suffering, by protecting against erosion of pro-poor institutional
arrangement regarding basic necessities of life, by bolstering up pro-
poor state policies, by contributing towards effective struggle for rem-
edies and by serving as a platform for mobilisation of pro-poor public
opinion.
Firstly, the voice of the marginalised could echo in the portals of
the courts because of liberalisation of locus standi rule and emergence
of Public Interest Litigation as a movement and a phenomenon.%
Expansion of access to justice through PIL and extension of legal aid
' Upendra Baxi, Courage, Craft and Contention: The Indian Supreme Court in the
Eighties (N.M. Tripathi, Bombay 1985) at p. 10; G.B. Reddy, Judicial Activism in India
(Gogia Law House, Hyderabad 2001) at p. 373; for a viewpoint that judicial activism
should be balanced with judicial restraints and in the policy matters judiciary shall
Hs intervene; see, Justice B.N. Srikrishna, “Skinning Cat”, (2005) 8 SCC Journal Section
‘4 Siri Gloppen, “Courts and Social Transformation: An Analytical Framework”

in Roberto Gargarella, Courts and Social Transformation in New Democracies (Ashgate
Hampshire 2006) at pp. 35, 37-38.
'%° S.P. Gupta v. Union of India, 1981 Supp SCC 87: AIR 1982 SC 149; People’s Union for
Democratic Rights v. Union of India, (1982) 3 SCC 235: 1982 SCC (L&S) 275: AIR 1982 SC
1473; for elaborate discussion see infra, Ch. 18.
Contribution of governmental organs to social transformation
es. Sinise cates Sinner -saccade eae a ghana211
and services have attempted to satisfy the hopes of the aggrieved
class.
Secondly, the courts have responded with magnanimity and realisa-
tion of their constitutional duty by a value-based interpretation of the
Constitution, for rendering remedies. Justice K. Ramaswamy observed
in Ashoka Kumar Thakur, “This Court as the vehicle of transforming the
nation’s life should respond to the nation’s needs, interpret the law with
pragmatism to further public welfare to make the constitutional ani-
mations a reality and interpret the Constitution broadly and liberally
enabling the citizens to enjoy the rights.”"5° Some of the finest creative
interpretations and logical strategies have been employed in this proc-
ess. Going beyond procedure-substance dichotomy, establishing the
contours and content of positive rights jurisprudence related to right
to life is one of the feats of judicial creativity. It was in fitness of things
that right to food, health, environment, education, livelihood and shel-
ter gained the status of Fundamental Rights in the background of Part
IV values and state’s positive duty in ensuring them.” The care with
which policy based interest is converted into principle based right by
confining to the factors of necessity exhibits pragmatism and acumen
of the Court. It is to be noted that in the matter of gender justice, mul-
ticulturalism and reservation policies, the judiciary has furthered the
constitutional objectives.
Thirdly, competence of the judiciary for transformation performance
is enhanced by building a sound tradition and principle of judicial
independence, by application of contempt power or power of doing
complete justice and by popular endorsement of court decisions. The
participation of civil society and persuasion by media have also added
to courts’ strength.
Fourthly, the compliance scene is largely promising as the follow-
up action by the legislature and executive have supported the judicial
outcome. Bringing of legislation related to gender justice and educa-
tion, and executive’s extension of cooperation in implementing deci-
sions relating to right to food, environment and other positive rights
of life provide good examples of compliance. In the matter of right
to food and environment, judicial co-governance with executive has
also been practiced. R. Sudarshan notes that in the post-emergency
period, India’s higher judiciary has been engaged in co-governance
ns between
with the other branches of government, and the distinctio
ng the law have
making policies, implementing policies, and interpreti
5 SCC 403: AIR 1996 SC 75.
156 Ashoka Kumar Thakur v. State of Bihar, (1995)
(East ern Law House, Kolkata 2004) Ch.
157 See P. Ishwara Bhat, Fundamental Rights
8.
v Dhavan (Ed.), Judges and
158 Upendra Baxi, “Taking Rights Seriously” in Rajee
Judicial Power (N.M. Tripathi, Bombay).
ee
Oe e
become blurred. Indian judiciary is a pioneer in effectuating the
third generation human rights through imaginative interpretation of
the Constitution. Arun Shourie points out the lack of adequate follow-
up action by other organs of government in implementing some of
the vital and progressive judgments in the matter of eradication of the
practice of bonded labour and child labour.
Recognising the social justice content of the Fundamental Rights, in
M. Nagaraj** the Supreme Court observed:
“ rights conferred on citizens and non-citizens are not merely indi-
vidual or personal rights. They have a large social and political content,
because the objectives of the Constitution cannot be otherwise realised.
Fundamental Rights represent the claims of the individual and the
restrictions thereon are the claims of the society. Article 38 in Part IV
is the only Article which refers to justice, social, economic and political.
However, the concept of justice is not limited only to directive princi-
ples. There can be no justice without equality...Provisions of Part III also
provide for political and social justice.”
This reflects the mainstream development of reading the two parts
of the Constitution harmoniously. Article 21, which was originally
not so promising provision, was moulded to hold tremendous scope
for social transformation. Similarly the concepts of equality, secular-
ism and minority rights were given social transformation potential-
ity through imaginative interpretation by using the data on the past
and vision about the futu.e. This reminds the reflections of Justice
Benjamin Cardozo who had said, “...logic and history, and custom,
and utility, and the accepted standards of right conduct, are the forces
which singly or in combination shape the process of law. Which of
these forces shall dominate in any case, must depend upon the com-
parative importance or value of the social interests that will be thereby
promoted or impaired."
Emergence of the Supreme Court as the living voice of the
Constitution with a clear thrust for social transformation is greatly
admired in academic writing. M.P. Jain considers that the people-ori-
ented approach of the Court by integrating the Fundamental Rights
with Directive Principles has produced with a high order of creativity
a strong impulse towards building a welfare state. The Court has
89 R. Sudarshan, “Courts and Social Transformation in India” in Roberto Gargarella,
Courts and Social Transformation in New Democracies (Ashgate, Hampshire 2006) at pp.
153, 158-59,
‘©? Arun Shourie, Courts and their Judgments (Rupa & Co., New Delhi 2001) at pp. 51-
61.
"61M. Nagaraj v. Union of
India, (2006) 8 SCC 212.
'2 Benjamin Cardozo, Judicial Process (Yale University Press, New Haven 1921, 1941)
at p. 112.
‘® MLP. Jain, “The Supreme Court and Fundamental Rights” in S.K. Verma and
Working offederalism and welfare democracy
eee eee ee ee NON cO | 213 o
charted the socio-economic destination for the poor with an unpar-
alleled dynamism, humanism and empathy. The Court’s inevitable
role as an umpire in pluralistic society has served to resolve compet-
ing political claims, according to S.P. Sathe. In mediating between
freedom of religion and social reform, in upholding right to equal-
ity against region-based or language-based discriminations and in
traversing the path of economic justice as opposed to respecting the
exploitative dimensions of property right, the judiciary has effectu-
ated the constitutional aspiration for desirable social transformation.
Using multiculturalism as a tool, method or parameter for social trans-
formation has also augured quite well, and yielded welcome result.
4.7 Working of federalism and welfare democracy for social

transformation
The division of powers between two levels of government has necessi-
tated the working of cooperative federalism to shoulder the responsibil-
ity of social transformation. The question of legislative competence of
states has been sometimes used to nullify state legislation that imposed
regional language as the sole medium of instruction even upon minor-
ities*® or to quash state law or recruitment rule that preferred locals
to others’® or to invalidate state law that provides for internal reserva-
tion by tinkering the list of Scheduled Castes prepared by the centre.'”
Overarching the principles of multiculturalism and welfare upon
the federal structure has sternly dealt the divisive tendency. Unlike
USA’® but like Canada’, federalism in India has facilitated the cause
of human rights and welfare. Although textually governments at all
the levels have duty to implement the directive principles and protect
the fundamental rights, these are to be carried within the limits of
federalism. Modern planning at the national level, mega projects that
transcend boundaries of State and Central Government’s determina-
tion on resource allocations have brought changes in the functional
methodology of federalism. Centralised legislation are counterbal-
Kusum (Ed), Fifty Years of the Supreme Court of India (Oxford University Press, New
Delhi 2000) at pp. 99-100.
14 SP. Sathe, supra, n. 135 at p. 57.
16 Gujarat University v. Krishna Ranganath Mudhokar, AIR 1963 SC 703.
16 See V.N. Sunanda Reddy v. State of A.P., 1995 Supp (2) SCC 235; see also infra, Ch. 9;
935.
Kailash Chand Sharma v. State of Rajasthan, (2002) 6 SCC 562: 2002 SCC (L&S)
167 EV. Chinnaiah v. State of A.P., (2005) 1 SCC 394.
slow and
18 The process of incorporation of Federal Bill of Rights into states was
100
Re Colliery Co. v. Bryden, 1899 AC 580 (PC); In re, Alberta Statutes, 1938 SCR
see also, J.N. Lyon and R.G. Atkey,
(Canada); Switzman v. Elbling, 1957 SCR 285 (Canada);
Canadian Constitution in Modern Perspective (1970).
214 Constitution's Orientation and Response to Social Transformation
anced by decentralised administration. Inter-state disputes on river

and borders have sometimes witnessed social tensions temporarily
but got resolved in the long term functioning of federalism. However,
when looked to the different levels of welfare attainments in various
states and their lopsided growth, the inadequacies of cooperative fed-
eralism in practice in promoting welfare of all are clear. NCRWC has
pointed out the problems that shall be addressed in this regard.”
Granville Austin relates application of the Constitution’s three seam-
less web-national unity, democracy, and social revolution—to the soci-
ety’s competence for adaptability and contours of nation’s culture.”
He views that society’s disparities and diversities have been accom-
modated to the point that the nation is united and its integrity assured;
that over centralisation is checked in the process of transcending plu-
ralism; that the status-based hierarchy is made to yield to the regime of
equality; and that the materialist challenges of “survival society” are
to be met by adherence to the primary goals of just social order and
rule of law.'” All these open the doors to national rebirth.
4.8 Constitutional interpretation as an effective armoury for social

transformation
Words as skins of living thoughts have elasticity to accommodate new
meaning in the light of changed circumstance through the process of
interpretation. Application of this feature has greatly helped the mis-
sion of social transformation. Some of the key principles in this regard
may be highlighted.
4.8.1 Progressive interpretation

The approach of progressive interpretation has helped in culling
out the new implications of old expressions. As stated in M. Nagaraj
case*?3;
“Constitution is not an ephemeral legal document embodying a set of
legal rules for the passing hour. It sets out principles for an expanding
future and is intended to endure for ages to come and consequently to
be adapted to the various crisis of human affairs. Therefore, a purpo-
sive rather than a strict literal approach to the interpretation should be
adopted. A constitutional provision must be construed not in a narrow
and constricted sense but in a wide and liberal manner so as to antici-
pate and take account of changing conditions and purposes so that con-
'% Report of the National Commission to review the working of the Constitution.
! Granville Austin, Working a Democratic Constitution (Oxford University
Press,
2 Ibid, at pp..638-60.
"3M. Nagaraj v. Union of India, (2006) 8 SCC 212.
Constitutional
Slsshtcni sy aeneoteinterp
e
retation as an effective armoury
ES LO. .RN eaaed 215
stitutional provision does not get fossilised but remains flexible enough
to meet the newly emerging problems and challenges.”
It is viewed by P. Jaganmohan Reddy, J. in Kesavananda'’s that while
the law declared in the past was in accord with the settled judgment
of the society, the social and economic conditions then existing, and
that if those judgments are not likely to subserve the subsequent gen-
erations or the requirements and needs of the society as it may then
be conditioned, they will have to be changed by the process known to
law, either by legislative action or judicial re-review where that is pos-
sible. The Courts, therefore, have a duty, and have indeed the power,
to re-examine and restate the law within the limits of its interpretative
function in the fullness of the experience during which it was in force
so that it conforms with the socio-economic changes and the juris-
prudential outlook of that generation. As viewed in I.R. Coelho, “The
Constitution is a living document. The constitutional provisions have
to be construed having regard to the march of time and the develop-
ment of law.”"75
4.8.2 Purposive interpretation

Since the very text of the Constitution itself is sufficiently oriented
towards social transformation, and rightly deserves a description as
programmatic charter,” the task of accentuating its purpose goes a
long way in its progressive interpretation. This specifically involves
purposive interpretation in keeping with the theory that state is a pur-
posive entity for ensuring overall human happiness. Dr. A.S. Anand,
CJ. in S.R. Chaudhuri v. State of Punjab’7’ observed, “Constitutional pro-
visions are required to be understood and interpreted with an object-
oriented approach. A Constitution must not be construed in a narrow
and pedantic sense.” V.R. Krishna lyer, J. in Sunil Batra observed, “Time
works, changes, brings into existence new conditions and purposes.
Therefore, a principle, to be vital, must be capable of wider applica-
174 Kesavananda Bharati v. State of Kerala, (1993) 4 SCC 225: AIR 1973 SC 1461, para
1118.
75 IR. Coelho v. State of T.N., (2007) 2 SCC 1: AIR 2007 SC 861. |
1% R. Sudarshan, “The Political Consequences of Constitutional Discourse” in T.
V. Sathyamurthy (Ed.), State and Nation in the Context of Social Change, Vol. I (Oxford
“The Constitution
University Press, New Delhi 1997) at pp. 55, 64; William J. Brennan,
of the United States: Contemporary Ratification” extracted in Walter Murphy,
New York
American Constitutional Interpretation (3rd Edn., New York Foundation Press,
g aspiration to social justice,
2003) at p. 249 considers US Constitution as embodyin
brotherhood and human dignity.
17 (2001) 7 SCC 126: AIR 2001 SC 2707.
216 Social. Transformation
Constitution’s Orientation and Response toer
a
tion than the mischief, which gave it birth. This is peculiarly true of
constitutions.”"”* K. Ramaswamy, J. in Appa Balu Ingale’”? said:
“Law should subserve social purpose. Judge must be a jurist endowed
with the legislator’s wisdom, historian’s search for truth, prophet’s
vision, capacity to respond to the needs of the present, resilience to cope
with the demands of the future and to decide objectively disengaging ~
himself/herself from every personal influence or predilections. There-
fore, the Judges should adopt purposive interpretation of the dynamic
concepts of the Constitution and the Act with its interpretative armoury
to articulate the felt necessities of the time. The Judge must also bear in
mind that social legislation is not a document for fastidious dialects but
a means of ordering the life of the people.”
As a tool of value-based interpretation, purposive construction has
paid rich dividends by looking beyond the words, times and contexts,
and in building the supreme law on a sound footing of enduring val-
ues?
4.8.3 Original Intention theory

One method of being faithful to the Constitution in the course of its
interpretation is by adhering to the original intention of the fram-
ers."** People’s consent to the original intention is the justification for
its application. Since the Indian Constitution is intended to be a tool
of social transformation wi'i: clear ideologies and mechanisms, refer-
ence to the historical material for identifying the mischief intended
to be dealt or aim that was set, can be a good starting point.*? Some
of the path-breaking judgments™® have come from extensive reference
8 Sunil Batra v. Delhi Admn., (1978) 4 SCC 494: 1979 SCC (Cri) 155: AIR 1978 SC
1675.
9 State of Karnataka v. Appa Balu Ingale, 1995 Supp (4) SCC 469: 1994 SCC (Cri) 1762:
AIR 1993 SC 1126.
0 P. Ishwara Bhat, “Purposive Construction of the Constitution” in P. Ishwara Bhat,
Essays in Law (University of Mysore, Mysore 2002) at pp. 71, 83-84; also see, Ashutosh
Bhagwat, “Purpose Scrutiny in Constitutional Analysis” (1997) 85 California Law
Review 297 at pp. 368-69; State of U.P. v. Jeet S. Bisht, (2007) 6 SCC 586.
'*' William J. Brennan, “The Constitution of the United States: Contemporary
Ratification” extracted in Walter Murphy, American Constitutional Interpretation (3rd
Edn., New York Foundation Press, New York 2003) at p. 250.
182 See, Laurence Tribe, American Constitutional Law, Vol. I (3rd Edn., Foundation
Press, New York 2000) at p. 68 for a view that inquiry of original meaning should
be the starting point in interpretation. Also see, Ronald D. Rotunda and John E.
Nowak, Treatise on Constitutional Law: Substance and Procedures, Vol. IV (2nd Edn., West
Publishing Co., St. Pauls Minn, 1992) at pp. 632-35.
183 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461; S.R.
Bommai v. Union of India, (1994) 3 SCC 1; Aruna Roy v. Union of India, (2002) 7 SCC 368;
State of Karnataka v. Appa Balu Ingale, 1995 Supp (4) SCC 469: 1994 SCC (Cri) 1762: AIR
1993 SC 1126; Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217: 1992 SCC (L&S)
Constitutional interpretation as an effective armoury 217
Se ESSE Acton ae ee
to, and reliance upon Constituent Assembly Debates and other his-
torical materials. By not referring to CAD, in property right cases, a
pro-transformation outcome did not occur during the early decades of
constitutional development."*4 In the context of aspiration-promoting
Constitution, reference to original intention cannot be regarded as
retrograde or going against the time’s arrow. However, realising that
strict adherence to the original intention results in excessive textual-
ism or formalism, courts have not allowed past to govern the future in
the matter of due process issues*®’ and minority rights.’ Thus, flexible
approach regarding original intention theory has paid rich dividends
in gathering guidelines from the past and avoiding shackles to devel-
opment or straitjacketing of future growth. Constitution being a living
document, its full developments could not have been foreseen com-
pletely by the most gifted of its begetters. As Justice Holmes said in the
context of American Constitution, while the framers had created an
organism to realise their hopes, the successors spent sweat and blood
to create the nation and hence the whole experience rather than what
was stated long back should be considered in the course of interpreta-
tion.’*” This notion of “living Constitution” tries to solve the problem
of continuity and change by looking to the efforts of governments, by
revising Supreme Court’s viewpoints and by ignoring political value
judgments.’® It is to be remembered that by using the original inten-
tion as relevant but not invariably binding, smooth sailing of the bal-
ance between continuity and change has been enabled adding to the
competence for transformation performance.
What is original in the original intention is ultimately traceable
to the societal perception and response, which are reflected by the
Constitution makers as society’s spokespersons. People are the ultimate
makers of the Constitution."® Thus if the authorship of a Constitution
Supp 1; Samatha v. State of A.P., (1997) 8 SCC 191.
16 State of W.B. v. Bella Banerjee, AIR 1954 SC 170; State of W.B. v. Subodh Gopal Bose,
AIR 1954 SC 92; P. Vajravelu Mudaliar v. Collector (L&A), AIR 1965 SC 1017; Kameshwar
Singh v. State of Bihar, AIR 1951 Pat 91; Karimbil Kunhikoman v. State of Kerala, AIR 1962
SC 723: 1962 Supp (1) SCR 8239; also see, P. Ishwara Bhat, Fundamental Rights (2004) Ch.
13.
18 Maneka Gandhi v. Union of India, (1978) 1 SCC 248: AIR 1978 SC 597; Sunil Batra v.
Delhi Admn., (1978) 4 SCC 494: 1979 SCC (Cri) 155.
AIR 1974
186 Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717:
481: AIR 2003 SC 355.
SC 908; T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC
187 State of Missouri v. Holland, 252 US 416: 64 L Ed 641 (1920). p
18 William H. Rehnquist, “The notion of a Living Constitution” in Walter Murphy
. 256.
2 L Ed 60: 5 US (1 cR)
aw AeabaRte to Chief Justice Marshall (Marbury v. Madison,
of authority; they have oo melate
137 (1803), “The people are the ultimate source
with them by adopting the origina
the authority that originally resided entirely
Constitution and later by amending it.”
218 Constitution’si Orient ation and Response to Social Transformation
is cel laa Ae Si NR
is attributable to society, original intention is relevant only to know
how the society felt at that point of time and whetheritcontinued as
a factor of worth consideration even in changed societal conditions. In
Indra Sawhney’ Justice R.M. Sahai observed after referring the views
expressed in Constituent Assembly Debates about the term backward
class:
“What emerged out of shared understanding by consensus was not
backward caste but backward class, an expression of elasticity capable
of expanding depending on the nature and purpose of its use...The law,
even as it honours the past, must reach for justice of a kind not meas-
ured by force, by the pressures of interest groups, nor even by votes, but
only by what reason and a sense of justice say is right...Continuity is
essential to law as a whole, but the continuity must be creative.”
4.8.4 Reading techniques and writing strategies

The reading techniques used in constitutional and statutory interpre-
tations that have immensely contributed to social transformation by
balancing between legislative choice and constitutionalism™ can be
briefly pointed out. “Reading Down” is giving of a narrow meaning
to an overbroad legal provision, which would have been otherwise
unconstitutional.” In the context of restrictions or discriminations
operating upon vulnerable sections of society like women this tech-
nique could provide remed:es in the matter of maintenance.’
“Reading Up” is the process of upgrading the content and proce-
dural requirements to save the constitutionality of an impugned leg-
islation. Inclusion of right to hearing of workers before winding-up of
companies is an example of reading, that has helped the vulnerable
sections. In Sunil Batra’ by interjecting elements of hearing and pro-
Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1 at
pe295:
®! P. Ishwara Bhat, “Reading Down, Reading up or Writing Anew? The Innovations,
Difficulties and Strategies of Judicial Review” in K.N. Chandrasekharan Pillai, P.
Ishwara Bhat and C. Rajasekhar, Indian Judiciary: An Audit (Karnataka University
PGDOS in Law, Dharwada 2000) at pp. 83, 100.
' Peter W. Hogg, Canadian Constitutional Law (3rd Edn., Carswell, Toronto 1992) at
pp.ing Justice K.K. Mathew in Gobind v. State of M.P., (1975) 2 SCC 148: AIR 1975
8.
Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125: AIR 1996 SC 1864; Danial Latifi v.
Union of India, ILR (2001) Kar 5289; see also infra, Ch. 16
"4 National Textile Workers’ Union v. P.R. Ramakrishnan, (1983) 1 SCC 228: AIR 1983
SC 75. Reading in of Art. 43-A into Art. 14 was also done in this case.
Sunil Batra v. Delhi Admn., (1978) 4 SCC 494: 1979 SCC (Cri) 155: AIR 1978 SC 1675;
In Githa Hariharan v. RBI, (1999) 2 SCC 228: AIR 1999 SC 1149 where the impugned
S. 6(a) of the Hindu Minority and Guardianship Act, 1956 had conferred natural
guardianship of child to “father, and after him, mother”, by holding that mother’s
position is equivalent to that of father and her guardianship could be claimed even
Constitutional interpretation as an effective armoury
AER SEES Bese i i a ttle 219
cedural requirements for imposing bar fetters or solitary confinement
the jail manual was upgraded and prison reform was brought.
“Reading In” is a method of introducing or grafting the values of one
part of the Constitution to its other part. After the Kesavananda™ deci-
sion about complementary role of Directive Principles of State Policy
vis-a-vis Fundamental Rights, judiciary began to read the relevant
Directive Principle into the veins of suitable Fundamental Rights. The
positive rights revolution that took place in Article 21 is largely owing
to this phenomenon.’” Article 39-A was influential in bringing the
concepts of legal aid, speedy trial and prison reforms into the domain
of “procedure established by law”.%* Articles 48-A and 51-A(g) were
instrumental in bringing enormous components of right to whole-
some environment.’” It is creative reading of two parts together that
brought sound propositions of constitutional feminism.”
Although reading a constitution is not writing a new one, the law-
creating capacity of the Court could not be undermined. The heights of
judicial activism can be seen where new norms are created by judiciary
through framing of elaborate guidelines to fill the legal vacuum. The
judgments like Laxmi Kant Pandey?” and Vishaka?® reflect such activist
approach. The methodology involved application of consensus arising
from international legal norms, public opinion, constitutional ethos
of social justice and human rights into a new domain where law’s
inadequacy or silence is found. Center-staging of justice, welfare and
human rights by drawing support from Commission reports, interna-
tional legal norms and other data is the key feature of expanding the
horizons of constitutional jurisprudence.
during the lifetime of her husband, its constitutionality was upheld, and gender
justice ensured.
1% Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461.
197 Francis Coralie Mullin v. Administrator, U.T. Delhi, (1981) 1 SCC 608: AIR 1981 SC
SC 2715;
746; Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647: AIR 1996
v.
Parmanand Katara v. Union of India, (1989) 4 SCC 286: AIR 1989 SC 2039; Olga Tellis
Bombay Municipal Corpn., (1985) 3 SCC 545: AIR 1986 SC 180.
SC 1369; M.H.
i Hesinidite Khatoon (II) v. State of Bihar, (1980) 1 SCC 91: AIR 1979
Suk Das v. U.T. of
Hoskot v. State of Maharashtra, (1978) 3 SCC 544: AIR 1978 SC 1548;
Arunachal Pradesh, (1986) 2 SCC 401: 1986 SCC (Cri) 166.
SC 1086; M.C. Mehta v.
199 M.C. Mehta v. Union of India, (1987) 1 SCC 395: AIR 1987
Litigation and Entitlement Kendra
Kamal Nath, (2000) 6 SCC 213: AIR 2000 SC 1997; Rural!
v. State of U.P., 1989 Supp (1) SCC 537: AIR 1989 SC 594.
1984 SC 469,
m spe Kant Pandey v. Union of India (1984) 2 SCC 244: AIR
22 Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
4.8.5 Application of international law

Global human experience and aspirations as developed by the interna-
tional community have immense insights and inputs for social trans-
formation. The human rights conventions and declarations have been
positively responded by the constitutional jurisprudence. While spe-
cific adoption theory cast responsibility upon legislature to absorb the
treaty law, judiciary in recent decades has recognised its obligation to
effectuate international human rights conventions and norms in the
course of adjudication of human rights issues as far as possible. The
Bangalore Declaration, 1988 stated that the national courts shall have
regard to international obligations which their country undertakes—
whether or not they have been incorporated into domestic law—for the
purpose of removing ambiguity or uncertainty from national constitu-
tions, legislation or common law.
In evolving the right against sexual harassment in workplace by a
liberal construction of Articles 14, 15, 19 and 21, the Supreme Court in
Vishaka referred to international human rights conventions like CEDAW
to enlarge the meaning and content thereof, to promote the object of
the constitutional guarantee.” In C. Masilamani?4, the Declaration
on Right to Development, Universal Declaration and CEDAW were
referred to for developing gender justice approach in interpretation
of personal law in the light of right to equality. Enormous impact of
international environmental law upon the Indian law has been expe-
rienced witnessing introduction of sound concepts of sustainable
development, inter-generation equity, prevention and compensation.
Protection of rights of tribals against deforestation and eviction has
been developed in several cases*°5 by reference to UN Declaration on
Right to Development. Due process protection of women or of their
right to maintenance could be better done through application of rel-
evant human rights instruments in some other cases.” In brief, judici-
ary has acted as a funnel to receive the transformative spirit of ever-
expanding human rights norms and absorb it in the domestic law.2”
2° 1bid.
24 C. Masilamani v. Idol of Sri Swaminathaswamy, (1996) 8 SCC 525: AIR 1996 SC 1697.
20° Samatha v. State of A.P., (1997) 8 SCC 191: Banawasi Seva Ashram v. State of U.P,
(1986) 4 SCC 753: AIR 1987 SC 374; Narmada Bachao Andolan v. Union of India, (2000) 10
SCC 664: AIR 2000 SC 3751.
26 Vishaka v. State of Rajasthan, (1997) 6 SCC 241; Madhu Kishwar v. State of Bihar,
(1996) 5 SCC 125: AIR 1996 SC 1864; Danial Latifi v. Union of India, (2001) 7 SCC 740: AIR
2001 SC 3958.
*” S.B. Sinha, “A Contextualised Look at the Application of International Law-The
Indian Approach” AIR 2004 Journal 33; V.S. Mani, “Effectuation of International
Law in the Municipal Legal Order: The Law and Practice in India” Asian Book of
International Law (1997) 145; about ambiguity persisting in the sphere of compensation
law see, K.N. Chandrasekharan Pillai, “Incorporation of International Compensation
Does const
Sa itutipg onalism promote or impede social transformation?
SN TIRARUSy elcaeeD eehl221
Judiciary has employed above tools of interpretation either
sepa-
rately or integrally depending upon the need. Creative application
of
them has buttressed the transformation competence of the Courts. As
stated by Ramaswamy, J. in Gaurav Jain, “Interpretation is effective
armoury in its bow to steer clear the social malady, economic reorgani-
sation as effective instruments remove disunity, and prevent frustra-
tion of the disadvantaged, deprived and denied social segments in the
efficacy of law, and pragmatic direction pave way for social stability,
peace and order.’?
4.9 Does constitutionalism promote or impede social

transformation?
Constitutionalism is a philosophy that believes in supremacy of the
Constitution, analyses the reasons for the same and envisages the
mechanisms and tools for effectuating it. It provides rich ideologi-
cal resource and insights about origin, the purpose and legitimacy of
constitutional values.*” The social dimensions of the Constitution and
popular support to reinforce it are focused in constitutionalist dis-
course. Since the Constitution of India, in addition to being supreme
law for organisation and control of power of the political society, is
also a social document aiming to attain welfare of people and national
progress through social justice policies, human rights protections,
democratic structure, multiculturalism and national unity, establishing
constitutionalism has cardinal significance for India. The Aristotelian
proposition that to abide by the Constitution is not slavery but a veri-
table path of salvation has a practical value for social transformation
because of these inputs and value orientations.
One prominent criticism against constitutionalism is that it pos-
sesses traditional static legacy and tendency to continue a framework
of ideas without acting as a container and steering mechanism for
the major contemporary circuits and flows of political, economic and
social power which escape from the state.*”° Secondly, it is attacked
that it projects normative bias, favours certain interests at the cost of
Law into Domestic Law by the Indian Judiciary” (2006) 3 Indian Juridical Review 54.
India, (1997) 8 SCC 114: AIR 1997 SC 3021.
208 Gaurav Jain v. Union of
and Co,
209 Carl J. Friedrich, Constitutional Government and Democracy (Little Brown
Boston 1941, 1946); “Constitutions and Constituionalism” International Encyclopedia of
Chapman,
Social Sciences, Vol. XIII (1968) at pp 318-26; J. Ronald Pennock and John W.
“Reason
Constituionalism (New York University Press, New York 1979); Paul W. Kahn,
Constitut ionalism” (1989) 98 Yale L. Rev. 449.
and Will in the Origins of American
of Constit utional Plurali sm” (2002) 65 Modern Law
2 Neil Walker, “The Idea
” in Larry Alexander
Review 317: also see, Jed Rubenfeld, “Legitimacy and Interpretation
of Constitutional Justice” Larry
(Ec), infra at p. 194 and Lawrence Sager, “The Domain
Alexander infra, n. 209 at p. 271.
222 Constitution’s Orientation and Respo nse to Social Transformation
ee, E e
market place
others and fails to provide a level playing field in the
might use
of ideas. Thirdly, it is viewed that some sections of society
and aspira-
constitutionalism as a garb for projecting their interests
in
tions and take advantage of its symbolic authority. It is submitted,
n-
the Indian context these criticisms are not well founded. The conse
sus originally formed and subsequently continued during six decades
in the light of constitutional experiences and necessary amendments
has center-staged justice in constitutional discourse. Thanks to activ-
ist judicial interpretation and constitutional amendments, no constitu-
tional value has remained static in the Indian context nor the alternative
views were blocked. Western scholars have relied on moral authority
of constitutionalism, and found no antagonism with change. Richard
Kay views that constitutionalism as a mechanism to keep government
in order has great merit because a priori creation of abstract limits and
honest effort of public actors to stay within those limits ensure safety
to human life‘? Frank Michelman regards that a constitution is bind-
ing as a product of a socio-cultural fact of acceptance of it as the coun-
try’s Constitution and also as dictate of right reason.” Michael Perry
considers that constitutionalism entrenches norms against majority,
and allows changes in metaconstitutional rules of recognition through
judicial review and amendments.” Joseph Raz holds that a constitu-
tion built on consensus and morally worthy principles tends to exist
in societies that enjoy relative stability within diversity and change.”
Organic growth of the Constitution retains sameness of intrinsic prop-
erties along with changes undergone due to growth.
Constitutionalism has not been an object of dry lip sympathy for
the Indian judiciary, but has been its living creed and unfailing faith.
The contempt power, the power of rendering full justice and tools of
rule of law were consciously applied by the Apex Court to uphold the
constitutional values.7** Normative character of Part III is sometimes
eclipsed because of presumption in favour of constitutionality of legis-
lation, limited impact of verdicts upon parallel bodies and inadequate
control over inappropriate use of Ninth Schedule. For strengthening
a Richard S. Kay, “American Constitutionalism” in Larry Alexander (Ed.),

Constitutionalism, Philosophical Foundations (University Press, Cambridge 1998) 16 at pp.
49-50.
2 Frank Michelman, “Constitutional Authorship” in Larry Alexander, supra, n.
209 at pp. 64-65.
218 Michael J. Perry, “What Is the Constitution” in Larry Alexander, supra, n. 209 at
pad:
24 Joseph Raz, “On the Authority and Interpretation of Constitutions” in Larry
Alexander supra, n. 209 at pp. 152, 155 and 191.
*19 Art. 142 of the Constitution; Union Carbide Corpn. v. Union of India, (1991) 4 SCC
een Aslem v. Union of India, (1995) 1 SCJ 152; Re, Vinay Chandra Mishra, (1995) 2
584.
Conclusion 223
of constitutional supremacy against appeasing politics, coming out

of this slippery slope is indispensable. Building popular constitu-
tionalism in support of legal constitutionalism goes a long way in
implementing the constitutional values.*° As Dr. B.R. Ambedkar said,
“Constitutional morality is not a natural sentiment. It has to be culti-
vated. We must realise that our people have yet to learn it. Democracy
in India is only a top-dressing on an Indian soil which is essentially
undemocratic.’?”
4.10 Conclusion
Being mother of all laws, Constitution has formulated a grand scheme

for social transformation and stimulated as well as regulated the poli-
ty’s efforts in this direction. Its rich jurisprudence is product of interac-
tion amidst composite values and socio-political movements. The con-
temporary story of struggle for economic justice and social equity; of
affirmation of multiculturalism in all its dimensions and uniqueness;
and of activist state to wrestle for attainment of welfare goals even
at the teeth of globalisation and social exclusion has revolved around
the fulcrum of constitutional development. The theme of balancing
between continuity and change has been reaffirmed in the function-
ing of its instrumentalities.
, “Popular Constitutionalism,
216 P Ishwara Bhat, supra, n. 119 at p. 23; Larr; D. Kramer
959; Robert Post and Reva Siegal, Popular
circa” (2004) 92 California Law Review rnia
macy” (2004) 92 Califo
Constitutionalism, Departmentalism, and Judicial Supre
Law Review 1027.
217 CAD, Vol. VIL at p. 38.
retains samenéss of intrirusic Prap“
Ae chic tOgrowth. |
has net beoreaty Object of dey ‘lip:eoaigethnr:‘for
udiciary, but fas been its living creed anc unfailing faith.
ohmerit the power of rendering full justice and tools at
aly ayolied by the Apex Court to uphold the
Soo men: ne ‘Mormative character of Part TH is sometimes
Shataush of presumptioninfavour cf cnstitutioniality of legie-
“Bakion, feted toate vesinis cedt paraiie! bodies:and in: idea
conchWeer Rapper else gf Minth Sieedule, For strenetheniag ~
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CHAPTER 5 ene
ere Naess Spe Pd
RELIGION AND LAW
5.1 Religious pluralism and social transformation

India is an abode for many religions. Each religion is a_social phe-
nomenon, and each has its own community. The character and right
of religious observance depends upon the membership of particular
social group.’ This gives rise to specific collective identity and basis
for group cohesion. Transformations within the religion occur in the
course of social development due to reformative movements, emer-
gence of alternative faiths, rise of new leadership, impact of other cul-
tures and efforts of modernisation. Stateis also as an initiator of mod-
ernisation and enforcer of values of human rights and welfare. It puts
forward a distinct power center that indirectly influences the patterns
of religious life. By resolving inter-religious conflicts, by ensuring com-
munal harmony and by facilitating religious acts, state plays crucial
paternal role in the society. Since religions wield overwhelming influ-
ence on the social and individual life in traditional societies as that of
India, and often overemphasise customary beliefs, thereby retardin
or hindering modernisation, the question of bringing or concretising
with the help
transfor
social mati of law faces
on practical difficulties.
Religious issues often become sites of social tension because of com-
peting religious sentiments. Society as a common hinterland for both
religion and state, has to prepare itself for an orderly development by
respecting paramount human values. A principled distancing from all
1968) at
1 J.D.M. Derrett, Religion, Law and the State in India (Faber & Faber, London
p. 57.
226 .. Religion and Law
religions and an approach of impartiality in|treatment provide asafe

walk, soberness andlegitimacy for state action. Being a component
this approach sets ways and limits
of the policy of multiculturalism,
olawe regulative task, and inculcates an attitude and mindset for
co-existence amidst. different religious communities, Secularism as a
means of liberation from prejudices and communal frenzies has inher-
ent competence to enhance the worth of human rights and welfare.
Search for viable parameters for the appropriate triangular relations
among state, religion, and individual become an imperative in shaping
the legal policies in the task of social transformation.
The National Commission to review the working of the Constitution
has observed: . eer ee
“More than five decades of experience with the working of our Con-
stitution and the laws has borne out that democracy in a meaningful
sense dependsona pluralistic ethos permeating the polity. Our national
li ive.of the myriad variegations that make up
the unique mosaic of India’s society. The framework of our many and
elaborate structures of government aus eeu aCPESarcitectere of
ar inclusive society and one of the means is to promote civil society
initiatives for inter-religious and social harmony.”
Religions
give _rise.to diversity of human identities. Insistence on sin-
gularityof identity makes the world more flammable. As Amartya Sen
observes, “...the main hope of harmony in our troubled world lies in
the plurality of
identities, waich cut across each other and work against
sharp divisions around one single hardened line of vehement division
that allegedly cannot be resisted. Our shared humanity gets savagely
challenged when our differences are narrowed into one devised sys-
tem of uniquely powerful categorisation.”
5.2 Is religiona divisive or synthesising factor?

Religion is a concept difficult for definition and accurate identification.
It involves a systemofthought, devotion
to a cause, a spiritual adven-
ture through which we transform our personalityin the process of
participating in the ultimate mystery of the world; it goes beyond mere
doctrinal conformity and_ ceremonial piety.‘ It recognises metaphysi-
cal force from which people believe to gather benefits and hope to
* Report of the National Commission to review the working of the Constitution,

3.33.2 (2002).
* Amartya Sen, Identity and Violence: The Illusion of Destiny, at pp. 16-17.
* §. Radhakrishnan, Indian Religions (Orient Paperbacks, 1979, New Delhi 1992) at
pp: 7, 10; S. Radhakrishnan, Towards a New World (Orient Paperbacks, 1980, New Delhi
1994) at p. 49.
Is religion a divisive or synthesising factor?
227,
avert evils Religion contains rules of spiritual and ethica
l discipline
for attaining perfection in individual anc collective life. According to
Encyclopaedia of Religions, “Religion is the organisation of life aroun
d
the depth dimensions of experience—varied in form, completeness,
and clarity in accordance with the environing culture.” In the larger
sense, religion is a communal system for the coherence of belief—
typically focused on a system of thought, unseen being, person,or
object, that pooonsidered tobe suupermaturalsacred, divine, or of the
highest truth, mgral codes, practices, values, institutions, traditions,
and rituals that are often
traditionally.associated-with-the.core belief
Religion can also be described as a way of life. It provides standards
of judgment not alone in terms of behaviour as does the law, but also
in terms of motive and
prinof
ci the manner
ple which the State cannot
reach” The Supreme Court in Commr., Hindu Religious Endowments v.
Laxmindra Thirtha Swamiar of Shirur Mutt® has defined religion to mean
a system of beliefs or doctrines which is regarded by those who pro-
fess that religion as conducive to their spiritual well being; it does not
merely mean an opinion, doctrine or belief but also has an outward _
expression.in.acts....
The social dimension of religion is worth considering for our pur-
for dealing with the question of how the extraordinary power of a

divine god may be reconciled with the imperfection of the world that
he Has created and rules over; and seeks answers
that provide oppor-
tunities for salvation—relief from suffering, and reassuring meaning?
The pursuit of salvation, like the pursuit of wealth, becomes a part of
human motivation. Hence, even the sacred values do not get confined
to “other-worldly” affairs, but have strong social character and basis
for social control.’° Whether primitive naturism or refined philoso-
phy of divinism, religions reflect essential morals and institutionalise
social control for effectuating them," According to Emile Durkheim,
“A religion is a unified system of beliefs and practices relative to sacred
5 J.D.M. Derrett, Religion, Law and the State in India (Faber & Faber, London 1968) at
pp. 36-7.
6 http://en.wikipedia.org/wiki/Religion.
7 WE. Hocking, The Coming World Civilisation (1958) at p. 2.
8 AIR 1954 SC 282; this definition is consistently followed in subsequent cases such
as Durgah Committee v. Syed Hussain Ali, AIR 1961 SC 1402; Ratilal v. State of Bombay, AIR
1959 SC 358; Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615: AIR 1987 SC 748.
® http://en.wikipedia.org/wiki/Sociology_of_religion. — xe
C.
» Max Weber, “The Social Psychology of the World Religions” in H.H. Gerth and
Wright, From Max Weber: Essays in Sociology (1947) at pp. 267, 277.
1! AR. Blackshield, “Secularism an ial Control in the West: The Material
and Etheral” in G.S. Sharma, Secularis m: Its Implicati ons for Law and Life in India (N.M.
Tripathi, Bombay 1966) at p. 22.
228 -Religion and Law
things, that is to say, things set apart and forbidden—beliefs and prac-
cameras
tices which unite into one single moral community called aChurch, al
them.”” Thus, religion essentially unites societies. _
those who adhere to
of religionty
Complexi of society itself: While
varies with complexity
every religion bears the imprint of the structure of social milieu in
which it had its birth, it is by no means totally constrained by its source
but acquires a dynamic life of its own, sometimes achieving the unan-
ticipated. As societies come in contact with other societies, therevis a
tendency for religious systems to ofemphasise universalism to a greater
arid greater extent. Since division labour makes the individual seem
more important, religious systems increasingly focus on individual
salvation and conscience. Karl Marx considered religion as the illusory
happiness of the people and.appealed_to abolish it to assert.their-real
ene
h blind belief.
and
has the dark side of partisan approac
Because of these intimate cultural factors, religion has both indi-
vidual and collective or rational and emotional dimensions. Radcliffe
Brown and MN. Srinivas consider that rituals perform the social { unc-
tion of regulating, maintaining and transmitting
from one generation
toanother generation intimate social sentiments on which.the.consti-
tutionofsociety depends." *viorals of religion and environmentalism
converge at some point to bring out a socially integrated totality.’ If
religion is what it does, the peace of mind that it gives through spir-
itual consolation, devout celebration and meticulous asceticism is of
great utility. It resists onslaught of chaos and makes human life mean-
ingful in the midst of moral perplexities and_social conflict*"As'S.
Radhakrishnan observed, “Religion as an inward transformation, as
a spiritual changé, as the overcoming
of the discords within our own
nature—-that has been the fundamental feature of it from the begin-
ning of our history.” Religions strengthen the family bonds. But, by
cit
* Emile Durkheim, On Religion—A Selection of Readings (Routhdge & Kigon Paul,

London 1975). ;
"Karl Marx wrote (1844) that “Religion is the sigh of the oppressed creature, the
heart of a heartless world, and the soul of soulless conditions. It is the opium of the
people. The abolition of religion as the illusory happiness of the people is the demand
for their real happiness.”
'* MN. Srinivas, Study of Coorg Village (1952) cited by T.N. Madan (Ed.), Religion in
India (Oxford University Press, Delhi 1999) at p. 6.
' P. Ishwara Bhat, “Environment, Religion and Eco-deistic Jurisprudence”, Vol. III,
Indian Journal of Environmental Law (2002).
'° Berger and Clifford Geetz cited in T.N. Madan, supra, n. 14 at p. 10.
7 §. Radhakrishnan, Towards a New World (Orient Paperbacks, New Delhi 1999) at
p. 65.
Is religion a divisive or synthesising factor? 229
SSS eS OSE A A
upholding the social taboos based on gender bias, caste discrimination
or group prejudice, they sharpen the cutting edges of exploitation.”®
Hence, social side of religion is a mixed bag of comforts and pains, like
any facet of social life.
People belonging to the same religion have tendencyto unite because
of several factors: loyalty to common precepts, common ‘deity and
common religious leaders; following of common practices; collective
performance of religious rituals, functions and festivals; common use
of collective facilities like places of worship, pilgrimages, charitable
institutions and religious service; and a network of family relationship.
Factors like fear about domination by duties of other communities” or
about state-initiated discrimination and sense of insecurity also unite
the people belonging to the same religion. (The cry that one’s religion is /Wjhy,,
in danger stirs the emotion andresults in a deviant behaviour includ- |
ing collective violence. It is in such extreme situations that religion \/
operates as a divisive factor in the society. _) v
\Ly (~ But the differences| between religions are basically very little when
we look to their deeper philosophical terrains, which emphasise on
“S$ ) moral perfection either in individual or social behaviour. The ancient
nye |Indian vision that truth is one but the learned ones speak variously,”
yw ‘| points out the posse of strengthening the polic y
of tolerance
A _s,| eschewing communal violence. Emphasis on truth and non-violence
|
ye ’\constitute fundamental virtues common foallreligions. Koran asks us
“not TreVvile Those Whom others worship besides Allah. The socially
»,., valuable qualities—pursuit of truth, justice, love and charity—are repeat-
bw edly enjoined as will of the God in Koran.” Jesus, by pronouncing that
the kingdom of God is dwelling in each human being, appealed to
~ moral perfection and tolerance. Buddhism propounded code of moral-
ity for perfect life by emphasising need for simplicity, equality, and
| compassion and joy of renunciation and charity. The Jaina vows of
non-violence, of non-injury to living beings, of truth, chastity and
renunciation of external pleasure and the emphasis in Adi Granth of
Sikhs on the concept of universal man that frees the mind from bigotry
and superstition reflect the common threads of tolerance and harmo-
nious social life. According to S. Radhakrishnan:
p, temple prostitution
18 Sometimes perverted practices like sati, dowry, nude worshi
are traced to religion.
(devadasi), human sacrifice (narabali) and untouchability
am Svadharme nidhanam
1° Sriyan Swadharmo Vigunsha Paradharmarasvanuhit ;
sreyah paradharmo bhayavaha—Bhagavadgita, III-35.
another verse states, “Just as
*” Ekam sat vipraa bahuda vadanti—Rigveda, I-164.46; to God may be in any
ocean, obeisance
the rain descending from sky reaches the same
” “Akas hatpa titam toyam yathagachhati sagaram,
name, but destination is the same.
i.” }
sarvadeva namaskarah keshavam pratigachhat supra, n. 11
” in G.S. Sharma,
21 MH. Beg, “Islamic Jurisprudence and Secularism
at p. 144.
230 ‘Religion and Law
eee eee
“All religions require us to look upon life as an opportunity for self-
realisation—atmanastu kamaya. They call upon us to strive incessantly
and wrest the immortal from the mortal...One whose life is rooted in
the experience on the Supreme spontaneously develops love for all crea-
tions. He will be free from hatred for any man... He will boldly work for
a society in which man can be free and fearless, a subject and not an
object. He will oppose terror and cruelty and stand by the outcast and
the refugee... Religion in this sense will be the binding force which will
deepen the solidarity of human society.’
In Aruna Roy case? the Supreme Court approvingly cited from
Gandhiji’s writing on comparative study or instruction about plurality
Ole gen Gk Bi
MEPS PATE
“ ..the students shall be trained to cultivate the habit of understanding

and appreciating the doctrines “of various great religionsof the world
in a spirit of reverance and broadmindedness... This study of other
religions besides one’s own will give oneagrasp of the rock bottom
unity of all religions and afford a glimpse also of that universal and
absolute truth which lies beyond the ‘dust of creeds and faiths’...In this
respect religion stands on the same footing
as culture. Just as preserva-
tion of one’s own culture does not mean contempt for that of others, but
requires assimilation of the best that there may be in all other cultures,
even so should be the case with religion.”
Religion transcends the factors of superstitions, myths, legends,
images and symbols, and :omprehends values of morality, compas-
sion and humanism. Traditionally, it acted as a form of social control, a
socialising agency, and a moral elevator. P.C. Joshi writes, “Within the
religious tradition are still locked deep reserves of idealism and moral
energy capable of being directed to the collective good. These can still
be tapped as powerful forces for promoting national integration and
egalitarian development.”
But_contemporary society has been witnessing deformities in the
relations amidst inter-religious groups. Negative tendencies of regard-
ing one’s own religion as superiorto other TeNGIOS™ SHOVE eetab-
lish hegemony over other religions by inflicting denials and discrimi-
nations, political and economic exploitation of religious loyalties and
sentiments, fuelling of hostility between religions and vast accumula-
tion of economic and socio-political power in the hands of religious
leaders have led to socially retrogressive steps that need to be rectified
” S. Radhakrishnan, Indian Religions (1979, 1992) at pp. 14-15; see also Bhagavan Das,
Essential Unity of All Religions (Bharatiya Vidyabhavan, Mumbai 1960) at p. 16.
3 Aruna Roy v. Union of India, (2002) 7 SCC 368.
* PC. Joshi, “Secularism and Religiousity of the Oppressed: Some Reflections”
(1987) 19 Man and Development 201 at p. 235.
* It is this illusion that breeds intolerance and fanaticism, according to
S. Radhakrishnan, Indian Religions (1979, 1992) at p. 15.
Is religion a
fo divisive or synthesising factor? pase
through application of positive potentiality of socio-cultural heritage.
It is playing on the sentiments of people that makes religion the heart
of heartless world, the spirit of the spiritless condition and the opium of
masses, as Karl Marx viewed. As viewed by amember of Constituent
Assembly, it is not religion that is the source of trouble, but it is misun-
derstanding of religion that isthe source of trouble.** But with a sense
of tolerance and rational application of essential social morals bereft of
fear psychosis, such consequence can be avoided as the major thrust
of Indian experience teaches. Religion becomes a divisive factor only
with the working of negative tendencies referred-to-above: Itis Clear
Unlike the West, intellectual enlightenment in India has assisted the

task of revitalising the society through religious reconstruction, as can
be seen from the mission of Buddhism, Bhakti movement and the 19th
century renaissance spearheaded by Raja Ram Mohan Roy, Dayanand
Saraswati, Vivekananda and others. As Keshab Chandra Sen said:
“Religion, by improving the mind and investing conscience with
supreme authority, lays axe at the root of corruption, whether in the
individual character or in the institutions of society. Social reformation
must, therefore, be preceded by and based upon religious reformation...
Reformation is forming anew. Every reformer should, therefore, not
only destroy absurd and corrupt institution, but build up positive insti-
tutions of undoubted usefulness and purity.’”7
Thus, we cannot afford to glorify the negative factors that further
deepen the cleavages, on grounds of religion amidst different groups
of national community that has composite culture. Using the divi-
sive force through spread of communal feelings and practice of col-
lective violence obstructs the functioning of harmonious society. As
the UN Declaration on the Elimination of All Forms of Intolerance
and Discrimination Based on Religion orBelief, 1981 believes, free-
of the-goals
to the attainment
donrof religion-and belief contribute
of world peace, social justice and friendship among _peoples_and to
the elimination ofideologies or practices of colonialism and racial
discrimination. Harnessing of the positive side of inter-religious rela-
tions, coexistence, syncretism and symbiosis, and that alone becomes
appropriate. As viewed by J.D.M. Derret, “A multi-religious conglom-
eration of people or peoples can allow great freedom of religion, since
the
the very fact of multi-religiosity proves the seriousness with which
; b.
Ismail Sahi
2 CAD, Vol. VII, at p. 875, 7-12-1948 Mr Mohamad
and Religious Reform (Oxford
” Cited from the ete in Amiya P. Sen, Social
University Press, New Delhi 2003) at p. 73.
232 Religion and Law
ne ee RAR VINE iis «Sth
majority accepts the validity, for the whole, of the sincere beliefs of the
minority.”**
5.3 Secularism as a solution to the problems of religious conflicts

i
non-believers. Although etymologically it connotes irrelevance of, and

religious_considerations,*
and exclusion of
indifference to religions
and suggests for rigid wall of separation between state and religion,
its logical delin in theeatio world does not necessarily
religion-ridden n
require such wall of separation.
According to D.E. Smith, a secular state is a state which guarantees
individual and corporate freedom of religion, deals with the indi-
vidual as a citizen irrespective of his religion, is not constitutionall
connected to a satticular TeNGIOH HOF does it seek either to promote
or interfere with religion2® This proposition contemplates guaran-
tee of religious freedom to all—both individual and groups—subject
to legitimate restrictions in the interests of safety, public order and
morality; irrelevance of religion in the matter of defining the terms of
citizenship’s rights and duti=3; and separation between state and reli-
gion because of which there would be no state religion or state assist-
ance to religion. Smith admits that the proposition is an ideal, whose
perfect form is not achieved by any country. PK. Tripathi recognises
three important features of secularism envicagereetie Constitution:
giving primacy to the individual by placing him before and above
sit emma re and religious denomination
as incidental only to his well-being and to a general scheme of his
liberty; and enunciation
of the principle of
tolerance>’
Very clearly
going beyond the wall of separation or irrelevance of religion (dharma
nirapekshata) approach, its vital or firm terrain consists in equal respect
and treatment of all religions and commitment to tolerance (sarvad-
harma samabhava)* along with other basic values of the Constitution.
8 Supra, n.1 at p. 31.
» Webster’s Ninth New Collegiate Dictionary (1990).
* Donald Eugene Smith, India as a Secular State (Princeton University Press,
Princeton 1963) at p. 4.
*! PK. Tripathi, “Secularism: Constitutional Provisions and Judicial Review” in
G.S. Sharma, Secularism: Its Implications for Law and Life in India (N.M. Tripathi, Bombay
1966) at pp. 170, 174.
* See, for an excellent analysis, A.B. Vajapayee, “Secularism: The Indian Concept” in
D. Sunder Ram, indian Democracy: Prospects and Retrospects (Kanishka Publishers, New
Delhi 1996) at pp. 174, 195; T.N. Madan, “Secularism in its place” (1987) 46 Journal of
Secularism as a solution to the problems of religious conflicts 233
nce ee este aa eee
The Fifth Minorities Commission clarified that secularism in India did
not connote anti-sacredotalism or anti-clericalism nor did it crusade
for anti-religious faith. It said:
“Our broad type of secularism looks upon traditional religion, of
every label, with benevolent neutrality. It would like to see the end of
exploitation or of use of religion for political and economic purposes
and to purge it of superstition and harmful predatory practice. But
beyond that, it encourages religion as apart of beneficial human activ-
ity insofar as it can satisfy and serve the criteria of utilitarian ethics,
which are secular. Hence, we tend to employ the term secularism for a
healing, freedom supporting harmonising factor in our thoughts and
feelings, which enable religious cultures, not only survive and live but
to do so with all the force and vigour they can do this without harming
the general social welfare...The impact of our secularism operating as
a new social, economic, ethical and moral force resulting from modern
knowledge, science and enlightenment can elevate traditional religion
by purging it of noxious elements.’%9
In order to understand the social dimension of secularism and its role
in social transformation, it is appropriate to enter into historical, con-
stitutional and sociological discourse on the subject.
5.3.1 Historical background

An attitude of objectivity, humanism, co-existence and toleration
permeated the secular spirit of ancient Indian thoughts. A distinc-
tive Openness is exhibited in Rigveda which stated, “Truth is one, the
learned may describe it variously.” It considers all human beings as
parts of universal soul and preaches individual equality as a forerun-
ner of religious equality. As stated in Atharvaveda, “This Earth, which
accommodates peoples of different persuasions and language, as in a
peaceful home, may it benefit all of us.* Ashoka in his twelfth edict
proclaimed: He ia lpr isue
“He who does.reverence.to his own sect while disparaging the sects of
the
others, wholly from attachment to his own, with intent to enhance
glory of his own sect, in reality, by such conduct, inflicts the severest
injury on his own sect. Concord, therefore, is meritorious, to wit, heark-
by other
ening and hearkening willingly to the law of piety as accepted
people.”
Bilgrami, “Two Concepts of Secularism”
Asian Studies November, at pp. 747-58; Akeel Ee
_ ie
Economic and Political Weekly, 9-7-1994, at pp. 1749-67,
of Minorities Commission of India, 1982-
3 Paras 7.62 to 7.66, Fifth Annual Report
Beg at pp. 164-65.
83; see also, Ninth Annual Report cited by M.H. maanaa
4 Prithvi Sukta in Atharvaveda “Janam vibhrati bahutham vivaachasam
dharmanam prithavee yathokasam.”
t Paperbacks, 1979, New Delhi
» Radhakrishnan, Indian Religions (Orien
Cited byS.
1992) at p. 18.
234 Religi
a aon and Law
R
(iee e I AE T
Kautilya’s Arthashastra overrode religious considerations to serve the
cause of the State and attempted to emancipate the State from the
influence of theology by holding that religious norms should be sub-
ordinate to rational law2° The Satavahanas, Kushanas and the Gupta
rulers paid equal patronage to all religions. Under the Vardhana rul-
ers different schools of religion and philosophy flourished side by
side. The Shiva cult propounded in the south posed no problem of
social disharmony because of the well-laid ethos of religious tolerance.
Liberal patronage to all religions without discrimination was the pol-
icy of Chalukyas, Rashtrakutas, Hoysalas and Cholas.
Although Koranic Law and_Islamic jurisprudence are known for
universal brotherhood, humanitarian approach and reverence to life
a Stic e, some Muslim rulers disregarded these injunc-~
inpractice
‘tions during medieval period. Plundering and pillaging of places of
worship, imposition of jazia and _force/allurement-based_ conversion
during such regimes impeded religious freedom.” But the Mughal
Emperor Akbar and the Vijayanagara rulers attempted to reinforce
religious freedom on the footingof equality. Akbar wrote, “The vari-
ousreligious communities are divine treasures entrusted to us by God,
wé must love them as such. It should be our firm faith that every reli-
gionis blessed by Him, and our earnest endeavour to enjoy the bliss of
the ever green garden of universal toleration.”* According to Barbosa,
Vijayanagara kings allowed szch freedom that every man might come
and go, and live according to his creed without suffering any annoy-
ance. The medieval socio-religious reformers and exponents of Bhakti
cult preached the fundamental equality of all religions and unity~of
godhead2? Sant Kabir said, “Hindu and Turks are pots of the same
Ram ;
clay and Rahim are but different names.” According to Guru
all men as equal is religious.” The Sufi tradition of Islam emphasised

on ascetic personal ethic, ephemeral character of material factors and
non-ritualistic simplicity. These were appealing to the Hindu masses
as they were in harmony with Hindu tradition. Cultural syncretism,
if not mutual cultural acceptance, occurring at the mass level had
*° Arthashastra, Ch. 3 of Book I, at p. 3.

*” For a discussion of the proposition that Islamisation through conversion did not
bring economic gain because of continuance of caste system and customs even after
conversion and that force was exceptionally used in case of religious conversion, see,
Yogendra Singh, Modernisation of Indian Tradition (Rawat Publications, New Delhi 1999)
at pp. 73-76.
* Extract from Akbar’s letter addressed to Shah Abbas Safari of Persia; see also,
Abid Hussain, The National Culture of India (6th Edn., National Book Trust of India,
New Delhi 1961) ai p. 86.
* Romila Thapar, A History of India (Penguin Books, 1966) at pp. 304-13.
oy
e yseen os eng natlca
l e JSraank
ist
avoided embitterment.‘° It was because of these factors that religious
tolerance became a socially accepted practice" As observed by Segal,
“Tolerance is of the very material-from which the Indian character is
formed.’
The Charterof 1833 provided for non-discrimination in the matter of
public employment on ground of religion and race. In order to assuage
the religious sentiments of the Indians that were wounded by aggres-
sive social policies, Queen’s proclamation in 1858 asstired, “We dis-
claim alike the right and desire to impose our convictions (religious)
on any of our subjects. We declare it to be our royal will and pleas-
ure that none be in anywise favoured, none molested or disquieted by
reason of their religious faith or observances, but that all shall alike
enjoy the equal and impartial protection of the law; and we do strictly
charge and enjoy all those who may be in authority under us that they
abstain from all interference with the religious belief or worship of any
of our subjects on pain of our highest displeasure.” ~
Contrary
to the above policy, the British Parliament enacted Indian a aS Eee
Council Act of 1909 providing for communal representation. Itreflected

the “divide and rule” policy that'was affirmed in subsequent legisla-
tion narutMtaaely resulted.in tyo-nation theory This reminds what
General Rose had said about the 19th century colonial policy. Rose had
viewed:
“We maintain our power by playing off one section of Indians against
another and we shall continue to do so. The inborn antagonism between
the Indian races is a factor contributing to our strength. The divisive
spirit must be kept alive and intact. For, if the whole of India were to
stand up against us, then how could we continue to assert ourselves?”*5
Bipan Chandra points out, “Basically, communalism was one of the by
products of colonialism, of the colonial character of the Indian econ-
omy, of colonial underdevelopment and, in recent years, of the failure
and incapacity of capitalism to develop the economy and society.
However, in the indigenous Bills and Reports like Tilak Bill, 1895,
# Yogendra Singh, supra, at p. 72.

41 According to Tahir Mahmood, “Throu gho
its historyIndi observed the
a.hasut
principle of equality of all religions and of their_followers.” Tahir Mahmood, Laws of
India’on Religion and Religious Affairs (Universal Law Publishing Co., New Delhi 2008)
at p. 8.
R. Segal, The Crisis of India (Penguin Books, 1965) at p. 33. e
History
Cited by Wilhelm V. Pochammer, India’s Road to Nationhood: A Political
p. 387; Gurpreet Mahajan,
of the Subcontinent (Allied Publishers, New Delhi 1981) at
Diversity and Minority
“Indian Exceptionalism or Indian Model: Negotiating Cultural
a and Baogang He (Eds),
Rights in a Democratic Nation-State” in Will Kymlick
New York 2005) at PP: 288, 290.
Multiculturalism in Asia (Oxford University Press,
# Bipan Chandra, “Communalism as False Consciousness” in Sudipta Kaviraj (Ed.),
p. 299:
Politics in India (Oxford University Press, Delhi 1999) at
236
AE ES SA ne nan Religion
_ cee nae Law
1nonarmimnaand rea
Gandhi-Annie Besant Bill, 1925, Nehru Committee Report, 1929 —reli-

gious freedoms were contemplated in the framework of equal liberty
of all. Indian National Congress believed in equal treatment of all reli-
gions, asital could muster strength from the multi-religious society.
oné
socio-religious reformers of 19th century like Swami Vivekananda
The
and Raja Ram Mohan Roy emphasised tolerance and universal accept-
ance. Gandhiji said, “For God-fearing men, all religions are good and
equal, only the followers of different religions quarrel against one
another and thereby deny their respective religions... Religion is no
test of nationality, but a personal matter between man and his God.’45
In the background of communal riots unleashed ator after partition,
the Constitution makers accepted principles of secularism as the car-
-dinal value of constitutional democracy. The emphasis in Constituent
Assembly speeches ranged from rigid wall of separation to equal
treatment of all religions. Professor K.T. Shah’s proposal to enact that
State shall have no concern with any religion, creed or faith and that
it shall observe an attitude of absolute neutrality was not accepted
by the Constituent Assembly.** The dominant view prevalent in the
ise
Constituent Assembly was that Stat not anti-religious or irreligious;
but that itshould notidentify itse!f with any particular religion, or pre-
fer one religion or exclude another. Pointing out non-discrimination by
state in the matter of religion as théessential feature of secularism, it
was observed by Lakshmi Kant Maitra in the Constituent Assembly:
“By secular State, as I understand it, is meant that the State is not
going to make any discrimination whatsoever on the ground of religion
or community against any person professing any particular form of reli-
gious faith...The State is not going to establish, patronise or endow any
particular religion to the exclusion of or in preference to others and that
no citizen in the State shall have any preferential treatment-or will be
discriminated against simply on the ground that he professed a particu-
lar form of religion.’47
It was viewed by Ananthasayanam Ayyangar that secularism did not
mean irreligion. He said, “I do not, by the word ‘secular’, mean that we
do not believe in any religion, and that we have nothing to do in our
day-to-day life. It only means that the State or Government cannot
aid one religion or give preference to one religion as against another.
Therefore it is obliged to be absolutely secular in character, not that it
has lost faith in all religions.”* Jawaharlal Nehru not only ruled out
the concept of communal or religious state, but also said, “We are
building a free secular state, where every religion and belief has full
* Harijan, 29-6-1947.
*° CAD, Vol. VII, 3-12-1948, at pp. 815-16.
*” CAD, Vol.,VII, 6-12-1948, at p. 831.
** CAD, Vol. VII, 7-12-1948, at pp. 881-82.
Secularism as a solution to the problems of religious conflicts
e e 237
9.3.2 Constitutional discourse

There has been a consistent and convincing theme of secularism built
in the decisional law on the premise of equality in religious freedom.
B.P. Jeevan Redd J.y,
in S.R. Bommai>' views secularism as a positive
concept of equal treatment
of allreligions and deeply connected witl-
the premise of social justice, liberty and equality of status. For PB.
Sawant, J. it is “a creed of universal brotherhood and humanism.”? The
concept of State neutrality in religious matters—which forms one facet
of secularism—relies on impartiality and non-discrimination whereas
intolerance proceeds on the grand error that one man could judge bet-
ter the religious opinion of another than that other himself could do.
J.S. Verma, J. (as he then was) observed for the majority in M. Ismail
‘Faruqui , of secularism isoné facet of the right to equality
“The concept
“woverr as the central goldén thread in the fabric depicting the pattern”
of the scheme in our Constitution.”
The philosophy underlying right to equality has supplied valuable
arguments of constitutional reasoning relevant in the area of religious
freedom. In the context of a constitutional scheme to deal with a multi
religious society and the imperatives of bringing social reforms and
levelling the hegemonies that limit the individual or collective reli-
gious freedoms, right to equality rewardingly serves the objective of
ensuring social-justice-oriented secularism. According to Professor
G.S. Sharma, the_social expectations of a non-discriminatory and
egalitarian treatment of religions reformulate the concept of secular-
ism. The views of Dr. S. Radhakrishnan and M.C. Setalvad were relied
upon in Bommai and Ismail Faruqui cases to build
up the unique concept
of Indian secularism.
SiellaetSt
ARE R ES Cs
peg
“Dr. S. Radhakrishnan brings out the conceptual basis of secularism
in equality when he observed, “We hold that no ‘one’ religion should
be given preferential status, or unique distinction, that no ‘one’ religion
should be accorded special privilege in national life or international
4 Jawaharlal Nehru’s Speeches, Vol. I, 2-10-1948 at p. 28; see also, Shariful Hasan,
Secularism” in Rajeev Dhavan and Thomas Paul (Eds.), Nehru and the
“Nehru’s
Constitution (ILI, New Delhi 1992) at pp. 182-83.
® PK, Tripathi, supra, n. 31 at p. 193.
India, (1994) 3 SCC 1: AIR 1994 SC 1918 at p. 2066.
51 § R. Bommai v. Union of
52 ; 02
a ees Faruqui (Dr.) v. Union of India, (1994) 6 SCC 360: AIR 1995 SC 605 at
p- 630.
_ Religion
ee and Law
238
e
ee e
cracy
relations for that would be a violation of basic principles of demo
ious
and best interest of religion and government. This view of relig
role
impartiality, of comprehension and forbearance has a prophetic
to play.”
M.C. Setalvad _ of the view that considering the presence of sev-
was
eral minority groups in India, it became inevitable to have a secular
constitution of India “under which all religions could ‘enjoy equal
fréédom and all citizens equal rights, and which could weld together
into one nation the different religious communities.’°5 While the facil-
itative, protective and regulative role of the State vis-a-vis religions
has transcended the rigid wall of separation approach in India, in the
performance of these roles equality is ordained to be the governing
parameter.
The implications of inserting the term “Secular” into the Preamble
were considered by the Supreme Court in M.P. Gopalakrishnan Nair°®.
The Court found behind this insertion, the objective of spelling out
expressly the high ideas of secularism, to promote national unity and
suppress detriments to public good. Secularism, according to the
Court, prohibited establishing of a state religion and favouring or dis-
favouring of any particular religion; it also did not mean forming of
an atheist or theocratic society. In Bal Patil>7 the concept of enlight-
ened citizenship sans religion-based discrimination was developed to
uphold secularism.
Article 25(1) says, “...all persons are equally entitled to freedom of
conscience and the right freely to profess, practise and propagate reli-
gion.” The freedom is subject to the other provisions of Part III, and
hence, prohibition of untouchability and of traffic in human being dis-
yp allows such practices in the name of religion. The State’s power of pro-
' viding for social welfare and reform or the throwing open of Hindu
religious institutions of a public character to all classes and sections of
Hindus under Article 25(2)(b) extends the scope of religious worship in
temples to the hitherto deprived classes like untouchables. Article 26
confers upon every religious denomination or any section thereof, the
right to establish and maintain institutions for religious and charitable
purposes, to manage religious affairs and to own, acquire and admin-
ister property. In order to ensure transparency, good governance, pur-
pose ccmpliance and temple reforms and avoidance of pilferage of
assets, and misuse of funds the State has the power of interference. It
is a well-settled law that administration, management and governance
S. Radhakrishnan, Recovery of Faith (1955) at p. 202.

M.-C. Setalvad, Secularism (Patel Memorial Lectures, 1985).
M.P. Gopalakrishnan Nair v. State of Kerala, (2005) 11 SCC 45.
*” Bal Patil v. Union of India, (2005) 6 SCC 690.
Secularism as a solution to the problems of religious conflicts
ee 239
of the religious institution or endowment are secular activities and
the
State could regulate them by appropriate leflation Since both the
freeare do confe
ms rred subjecttopublic order, morality and health
enhancing the oppor tunity for free exercise and levels of moral content
is within the competence of state. All these have enormous dimension
of social reform without loss of religious identity. The applicatioof n
the test to identify essential aspectofreliand gionkeeping the inessen-
tials‘or those socially unwarranted like sati, narabali, temple prostitution
and nude worship outside the purview of religion, chops off the social
evils? Religious freedom plus essential reforms sans social evils and
fundamentalism shape the patterns of social reforms. As observed by
the Supreme Court in Sri Adi Visheshwara®:
“The religious freedom guaranteed by Articles 25 and 26, therefore, is
intended to be a guide to a community life and ordain every religion to
act according to its cultural and social demands to establish an egalitar-
ian social order. Articles 25 and 26, therefore, strike a balance between
the rigidity of right to religious belief and faith and their intrinsic restric-
tions in matters of religion, religious beliefs and religious practices and
guaranteed freedom of conscience to commune with his Cosmos/Crea-
tor and realise his spiritual self.”
Article 27 prohibits use of public revenues to promote or maintain any
teligion. Prohibition upon imparting of Teligious ‘instrtic-
tioninpublic schools (Article 28) has aimed at maintaining equanim-
ity in the learning process. Various equality clauses have prohibited
a a
discrimination on ground of religion. However, Article 290-A which

provides for annual payment of Rs. 46.5 lakhs out of Consolidated
Fund of State of Kerala to Travancore Dewaswam Board and Rs. 13.5
lakhs out of Consolidated Fund of State of Tamil Nadu to Tamil Nadu
Dewaswam Fund for the maintenance of Hindu temples and shrines
in the territories transferred from the State of Travancore-Cochin is an
example of political compromise attached to Instrument of Accession
9 SCC 548;A.Ramaswamy Dikshitulu
58 4.S. Narayana Deekshitulu v. StateofA.P., (1996)
v. Coot er aUUEyE SCCCL:Pamala Bansilal Pitti v. State ofA.P., (1996) 2 SCC 498;
Sri Sahasra Lingeshwara Temple, Uppinangady v. State of Karnataka, (2007) 1 Kar LJ 1.
59 See, P. Ishwara Bhat, Fundamental Rights (Eastern Law House, Kolkata 2004) Ch
11.
( Sati Pratha Removal Act 1829; Widow Remarriage Act,.1856,.Immoral Traffic
\_Prevention Act, 1956; Commission of Sati_(Prevention).Act, 1987. See also, Ramji Lal
Mod?-V. State of U.P, AIR 1957°SC 620. Paras Ram v. State of Punjab, (1981) 2 SCC 508:
1981 SCC (Cri) 516. H.M. Seervai, Constitution of India, Vol. Il, at p. 1198. Ceremonious
beheading of a four year old boy at the culmination of morning bhajan by a fanatical
devotee of goddess Devi was considered as a factual situation justifying imposition of
death penalty to deter the people and cure the social evil. See, for a relaxed ee
o
State of Maharashtra v. Damu, (2000) 6 SCC 269: 2000 SCC (Cri) 1088 ae murder
i tivated by unusual belief life imprisonment was imposed.
oe Viaheslebare of Kashi Vishwanath Temple v. State of U.P., (1997) 4 SCC 606.
_ _Religion and Law
eee
240
Se
of continu-
and an expression of concern to maintain certain elements a
_ ity along with change.”
ates the \
“The Directive Principle of State Policy in Article 49 oblig
historic
State to protect every monument or place or object of artistic or
sal
interest from spoliation, disfigurement, destruction, removal, dispo
reli- |
and export. Since many of the historic sites and monuments have
gious significance, State’s responsibility in this regard tends to pro-
mote equal treatment of all religions. Uniform civil code contemplated
in Article 44, because of its emphasis on equality and social justice has
some dimension of egalitarian approach towards all religions. -
~ Tt is a unique scheme of Indian Constitution that in addition to a |
detailed set of rules on fair State-religion relationship, egalitarian ©
approach towards all religions is embedded in it as citizen’s duty. |
Under Articles 51-A(e) and (f)it shall be the fundamental duty of every
citizen of India, to promote harmony and the spirit of common broth-
erhood among all the people of India transcending religious, linguistic
and regional or sectional diversities; and to value and preserve, the -
rich heritage of our composite culture. Further, the fundamental duty
to cherish and follow the noble ideals, which inspired national strug-
y religious tolerance.
gle for freedom, also hints at a sincere policof
Duties of abjuring of violence and striving towards excellence in all |
and collective activity also entail the approach |
spheres of individual
of equal treatment of all religions. Proper training and education of !
people, who are constituents of secular state, in secular way of life is
essential for flourish of secularism.® e
The above theme of secularism with social justice orientation has
been, by and
large,
the guiding spirit
to keep the tune of constitutional
development compatible forsocialtransformation. A brief survey of
case law will make the point clear. First, in the matter of temple entry,
the
rightsof religious denomination to manage TheirTeligious affairs
were considered as subordinate to State’s social reformative measures.
Subjection of religious freedom to other provisions of Part III has been
used to uphold temple entry laws benefiting the untouchables, who
were hitherto excluded.* Tins
* It is doubted by Upendra Baxi, whether insertion of Article 290-A conforms
to basic structure of the Constitution. See, Upendra Baxi, “The ‘Struggle’ for the
Redefinition of Secularism in India: Some Preliminary Reflections” in Rudolf C.
Heredia and Edward Mathias, Secularism and Liberation: Perspectives and Strategies for
India Today (Indian Social Institute, New Delhi 1995) 54 at p. 65.
® J.M. Shelat, Secularism: Principles and Applications (1982) at pp. 90, 128.
“* While denominational temples are subject to such duties arising out of harmoni-
ous construction between Art. 25(2)(b) and Art. 26(b), as laid down in Venkataramana
Devaru v. State of Mysore, AIR 1958 SC 255 publie-temples are directly controlled by Art.
25(2)(b). Evenin the absence of specific law for this purpose, untouchability in public
temples violates high constitutional morality and is impermissible. As observed by
a
Second, there has been a consistent line of judicial decisions to the
effect that
abolitionof hereditary position of archaka, trustee, san-
tikara a reform
rtatoryhrlegal
oumeasure
gh is valid. Highly rational
approach was adopted in N. Adithayan® while upholding ataw~abol-
ishing hereditary post of santikaran and allowing appointment of any
Hindu belonging toany casté having requisite qualification to offer the
serv of santik
ic aran.
e The Supreme Court held that Brahmin’s exclu-
sive access to the position of santikaran was because of their exclusive
learning opportunity, which was denied to others in the past; and that
the present availability of opportunity for all to acquire the worship-
ping skill through learning of sastra and veda had put the position on
a different footing. The social reform movement that has dismantled
caste hierarchy and that has respected the rational element of knowl-
edge acquisition, and thus promoted change with essential continuity,
has been very convincingly supported by the constitutional jurispru-
dence. The Court observed, “As long any one well-versed and prop-
erly trained and qualified to perform the puja in a manner conducive
and appropriate to the worship of the particular deity, is appointed
as santikaran dehors his pedigree based on caste, no valid or legally
justifiable grievance can be made in a court of law.” A blend between
tradition and modernity by using the material of equality and justice
is worth noting. In case of partisan approach of state in regulating the
management of religious institutions, the right to equality provides
remedies.”
Thirdly, the trend of development towards exclusion of oppressive
approach of religious dignitaries vis-a-vis their own religious commu-
nity has traversed the path of social transformation. While in Saifuddin”
the power of religious denomination to excommunicate individual
devotees was regarded as a matter of religious affair to be determined
Madras High Court in P.S. Charya v. State of Madras, AIR 1956 Mad 541, “It is certainly
not moral to prevent pious Hindus from being allowed to enter the temple solely on the
ground of their having born ina particular community and it is this inequality that is
sought to be removed by Art. 17 of the Constitution” (1956). In Surya Narayan Choudhary
v. State of Rajasthan, AIR 1989 Raj 99 the Rajasthan High Court found the practice of
purification of Harijans.prior to entry in temple of Nathdwara as discriminatory and
violative of the rights guaranteed under Arts. 14, 15, and 17, The court.ordered for
and directed the State to take strict steps toensure
immediate stoppageof the practice
compliancé with the order. J.S. Verma, CJ. observed for the court, All men are born
equal...To present them as unequals before God is, therefore, injustice and insult to
our
our maker besides being contrary to the guarantee and mandate of equality in
Constitution and a basic human right.”
SC 3538.
6° N. Adithayan v. Travancore Bebkeiverh Board, (2002) 8 SCC 106: AIR 2002
Kar LJ
6 Sri Sahasra Lingeshwara Temple, Uppinangady V-State of Karnataka, (2007) 1
that regulate d some Hindu religiou s institut ions
1 where the Karnataka legislation
leaving aside others was struck down.
853.
“¢ Safdar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC
. ~ Religion and Law
242 rn
sea
judicial scru-
by the concerned community, in Malankara Church case®
ds have gone
tiny on the matter and insistence on procedural safeguar
y-individual
a long way in establishing reasonableness in communit
rvention
relationship. Individual is no more a subject to dictatorial inte
_v» by the group power, nor is he free from minimum discipline of the
~ religion. Subordination of religious freedom to other provisions ofPart
tices of
» > STII, and State’s power of social reforms could deal with the prac
sati, devadasi, narabali and forced nude worship. However, the progress is
2 >
“.
yet to take place in full dimessipminithe matter ia igious
freedom in some temples.
’ -». Fourthly, the protective role of the state inpromot the secular
ing
AW 2 yy policy has ensured confidence amidst the religious minorities._In
3K. Reghunath v. State” the governmental measur eng and restor-
of repairi
‘.<? ing the buildings of religious and educational institutions destroyed
“3° S duting communal violence was upheld by the Divisional Bench Of
aS Kerala High Court. His lordship Raghavan, CJ, observed, “Houses,
Ss schools and places of worship belonging to both religious groups,
ay Hindus and Muslims were damaged, and in restoring them there is
i no question of promotion or maintenance of any particular religion or
religious denomination...It is not because the buildings belonged to a
particular religious denomination that they are restored, but because
they were damaged in the incident.”” Resolution of conflicts between
religious communities or-tenominations through application of rule
6° In Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, 1995 Supp (4) SCC 286:
AIR 1995 SC 2001 at p. 2072 In this case the Patriarch of Antioch, the Supreme Head of
Syrian Orthodox Church excommunicated the Catholicos of Malankara Church for
the reason that the Catholicos disregarded the higher position of Patriarch by using
the words “Holiness in Catholicos” name and by asserting himself as “seated on the
throne of St. Thomas”. While the Court recognised the power of excommunication
as a measure of discipline, in view of its serious impact upon civil rights, the court
proceeded to review the procedure and grounds of excommunication. The court
unanimously found that the conduct of the Catholicos in the instant case did not
conform to the canonical rules of Malankara church and the excommunication could
not be upheld “canonically, traditionally or constitutionally”. Compared to Saifuddin
case, it is a very welcome development that excommunication is not regarded purely
as a “matter of religion”. ~
~ © In S. Mahendran v. Secy., Travancore Devaswom Board, AIR 1993 Ker 42 the Kerala \
y High Court upheld a restriction imposed by temple authority, on the basis of long-held
/ community belief, upon entry of women between the age of 10 and 50 to Sabarimala |
| temple during the festival time, owing to the needs of perseverance for each pilgrim, |
as not violative of right to equality and individual religious freedom. The Court
reasoned that since women were not discriminated as a class, and were admitted
during non-festival time, the usage complied with the Constitution substantively. It is
submitted, from the perspective of gender equality the position is not satisfactory, as
\ there is no compelling reason to exclude them.
” AIR 1974 Ker 48.
7! Tbid, at p. 51.
of law principles has provided a dependable method of establishing

communal harmony? Socio-religious reform i in_such.
serene as Ae y10% Kent
<2 Soph
a wa A xt tad
: OO STS Me upper?
Fifthly, the facilitative role of the State in providing minimum access ”
to physical infrastructure on non-discriminatory basis has provided ~~
practical dimension to secularism. In Varkey Devassy v. State of Kerala?> *
the Kerala High Court upheld the acquisition of land by the govern-
ment for the purpose of temple as not involving specific appropriation
of public revenue for promotion of particular religion. On the ques-
tion of “specific appropriation” a subsequent Division Bench of Kerala
High Court adopted a different line of reasoning, and it is submitted it
was done rightly7* The governmental power to acquire land and trans-
fer it to religious body for consideration in order to enable construc-
tion of religious building cannot be considered as lacking. In Amulya
Chandra v. Corpn. of Calcutta?> the Privy Council held that the acquisi-
tion of certain properties by the corporation of Calcutta for building
a dharmasala for accommodating pilgrims resorting to Hindu temple
was for public purpose. In Narayanan v. State of Madras”* Madras High
Court has held that the position of law has not changed even after the
commencement of the Constitution. However, right to equality puts
superadded requirement that the governmental power shall be exer-
cised reasonably. Subsid suppor
yge _and_
to pilgrima t cel-
to cultural
ebrations of religious e
positive content to secularism, making it cultur nt.
e e
the protect f recognised in
State was
ive responsibilityo
a --Court-directed..the State
where_the. Supreme
at the
72 State’s partisan approach of favouring one of the religious communities
AIR 1958 MP 115. In this
cost of the other was sternly dealt in Tejraj v. State of M.B.,,
the member s of the Jain
case State installed a Shivling in a Jain temple and prohibited
the condition
community from entering the temple and from worshipping except on
Pradesh High Court
of Hindus being allowed to worship the Shivling. The Madhya
order and morality.
invalidated the State’s act and rejected the defence based on public on
y of Jain temple
The Court ordered for removal of Shivling and upheld the autonom AIR 1986
Supp SCC 487:
the basis of rule of law. In Gulam Abbas v. State of U.P., 1986
resolved a long standin g conflict between Shia and Sunni
SC 1017, the Supreme Court
ordering for shifting of graves
communities over the issue of worship of graves by
and thereby creating equal and
to a nearby place of safety surrounded by high walls
Shah v. Govt. of A.P., AIR 1992
undisturbed opportunity to worship. In Gehohe-E-Miran
sed equal rights of two competing
AP 357, the Andhra Pradesh High Court recogni
same route but at different timings and
groups of Muslims to take procession in the
thereby resolved the dispute.
73 1966 KLT 805.
48.
74 K, Reghunath v. State, AIR 1974 Ker
tta, AIR 1922 PC 333.
75 Amulya Chandra Banerjee v. Corpn. of Calcu
76 AIR 1954 Mad 385.
) 1 SE] 152:
7” Mohd. Aslam v. Union ofIndia, (1995
244 .. Religion and Law
Government of U.P. not to allow construction activity So

ng OT et eh agetintgS
court and observed, “Respect for |

assurance that can hold _a_plurali ion together.””* Concerning the
incident of demolition of the disputed structure, the Supreme Court in
Ismail Faruqui? held that safety of the disputed structure was a sacred
trust in the hands of the State Government, =m was not Se
ie the gua e of freedom.o has

a clear social dimension of protecting from conversion by force, fraud
and allurement. In Rev. Stainisl v.-State.of M.P.© the Supreme |Court
upheld the constitutionality of astatute, which prohibited conversion .
by force,fraud or inducement. For the Postulate that there isno funda-
mental right tto convert anotherfF
person to one’s own religion, the court
relied on the egalitarian language of Article 25(1), which says, “All per-
sons are equally entitled to freedom of conscience”, and the right is not
confined to the followers of one particular religion.
Finally, positive side of secularism accommodating learning about
all religions without discrimination and indoctrination, as emphasised
in Aruna Roy* has great social importance as it inculcates in people,
the attitude of tolerance. The force of self-sustenance that secularism
gathers from favourable social action and policy has great merit and
needs constant support.
5.3.3 Sociological discourse

Sociological debate about definition of secularism has veered between
two matricés: the separationist t approach an
and the. non-discrimination
approach. The separationi sts lamentthe growing
fied pS gro reliance on Teligious
symbots-and ideology in political life; apprehend about increasing
communal violence and _fragmentation of polity; and argue for total
separation between religion and politics in order to check communal-
ism. ‘Panikkar, Smith and others put forward this approach and sug-
”* Ibid, at p. 158, per M.N. Venkatachaliah, J.

” M. Ismail Faruqui v. Union of India, (1994) 6 SCC 360: AIR 1995 SC 605.
® (1977) 1: SCG 677: 1977 SCC (Cri) 147.
*! Aruna Roy v. Union of India, (2002) 7 SCC 368.
EIR E itt 0N iE
gested to confine religion to private domain.® Brenda Cossman and
Ratna Kapur also adopt similar approach.
On the other hand, the critics of separationist approach hold that
relcannot
igi be separated
on from politics;
and that the most feasible
and reasonable policy couldbe non-discrimination
in the matterof
religion. Accordin to T.N. Madan, major religions in South Asia-
Buddhism, Hinduism, Islam and Sikhism-are totalising in ‘character,
claiming
allofafollower’s life."Religionisconstituti ve and
ofsociety,
hence_cannot be separated and isolated from it. Citing from Indian
writings, Madan, Ashish Nandy and others consider that religion is a
source of absolute value, and provides moral basis for state authority.®
Without religion, politics would become “debased”. Madan refers to
the growing importance and activities of religion overtaking the sec-
ularisation process in modern times. Further, secularism of western
model is traceable to Protestantism, which had cut the umbilical cord
between heaven and the earth, and not suitable to the Indian situation.
Andre Beteille differs from Madan when he views that secularism is
not committed to any total or complete plan of organisation for the
whole society in terms of single consistent principle nor committed to
the exclusion of religion from every sphere of life or even every impor-
tant sphere of it.8”7 Gurpreet Mahajan considers the post-renaissance
development in Europe and American development as ultimately
underplaying the wall of separation approach and favouring the non-
discrimination approach.® As V.R. Krishna Iyer has observed, “The
82 K.N. Panikkar, “The Conceptualising Communalism” Seminar (June 1992) at p.

394; K.N. Panikkar (Ed.), Communalism in India: History, Politics and Culture (Manohar,
Delhi 1991); Donald Eugene Smith, India as a Secular State (Princeton University Press,
Princeton 1963); Rudolf C. Heredia, “Secularism and Secularisation: Nation Building
in Multi-Religious Society” in Rudolf C. Heredia and Edward Mathias, Secularism and
Liberation (Indian Social Institute, New Delhi 1995) at p. 11.
83 Brenda Cossman and Ratna Kapur, Secularism’s Last Sigh? Hindutva and (Mis) Rule
of Law (Oxford Press, New Delhi 1999).
“4 TN. Madan, Religion in India (Oxford university Press, Delhi 1999) at pp. 399-02.
8 Ibid; Ashis Nandy, “The Twilight of Certitudes: Secularism, Hindu Nationalism
and other Masks of Deculturation” in Veena Das (Ed.), Tradition, Pluralism and Identity—
In honour of T.N. Madan (Sage Publications, New Delhi 1999) at pp. 401, 413-15; Ashis
Nandy, “The Politics of Secularism and the Recovery of Religious Tolerance” in Veena |
Das, Mirrors of Violence (Oxford University Press, New Delhi 1990) at p. 69; S. Chandra
Mallampalli, “Separating ‘Religion’ from Politics: Denying or Rechannelling India’s
&
Past?” (1995) 13(1) Ethnic Study Report 73; V.R. Krishna Iyer, Law and Religion (Deep
Deep Publications, New Delhi 1984) at pp. 238-41.
of
8 TN. Madan, supra, n. 84 at p. 402. He views that since secularism is a dream
the political
minority which wants to shape the majority in its own image, but without
and a social myth at p. 395. .
power of doing so; hence, it is a phantom concept
Univers ity Press, 2000, New Delhi
8? Andre Beteille, Antinomies of Society (Oxford
2002) at p. 105. i
86 Gurpreet Mahajan, “Secularism” in Veena Das (Ed.), Sociology and Social
246 . Religion and Law
se ene ee na ieee inn NNSA eS 6EE
texture of secularism is democratic humanism, its temper is ethics and
goodness, its enemy is authoritarianism, religious, political or other;
its grammar is man’s scientific perception of reality.”® In fact, the con-
stitutional discourse on secularism has embraced the concept of sarva
dharma samabhava rather than dharma nirapekshata. For dealing with the
problem of religious conflicts or disputes about religious freedom the
constitutional discourse on secularism provides reliable insight.
eee
elaborately
arism
The constitutional aspiration and scheme for seculis
supported by legislative measures. Chapter XV_of the Indian Penal
Code, 1860 contains five important-sections-dealing.with..offences
sedan scot
able under Sections 297 and 298.

The Religious Institutions (Prevention of Misuse) Act, 1988 was
enacted in the background of misuse of religious premises in Punjab
and elsewhere for causing; insecurity of state or public disorder. It
prohibits the use of religious institutions for purposes such as pro-
motion of political activity, harbouring of criminals, storing of arms
and ammunitions, erection of bunkers, walls and towers without prior
permission, and for causing religious disharmony.
The Places of Worship (Special Provisions) Act, 1991 aims to prohibit
and punish illegal take over of place of worship of one community by
another community and to retain the status quo about religious char-
acter of the place of worship with reference to 15 August 1947. Section
3 states “No person shall convert any place of worship of a different
section of the same religious denomination or of a different religious
denomination or any section thereof.” Any violation is punishable with
three years’ imprisonment and fine. The Acquisition of Certain Area
Act at Ayodhya Act, 1993 had provided for acquisition of the disputed
land and other adjacent lands and vested these lands with the Central
Government which was to hand over to the trustees or the board of
management to be created by official notification. Although the Act
had the intention of putting an end to a long-standing dispute, it had
Anthropology (Oxford University Press, New Delhi 2003) at p. 908.

* V.R. Krishna lyer, supra, n. 85 at p. 201.
se csc ne tn lca ie lea ec
adopted a dubious course and the Supreme Court in Ismail Faruqui
held its impugned provisions as unconstitutional on the ground that it
amounted to legislative judgment and violated rule of law.
In order to keep the electoral and political process free from the influ-
ence of religions, Section 123 of the Representation of People Act, 1951
prohibits candidates from appealing to religion in order to get elected
or to prejudice another candidate’s chances to get elected. Section
123(3-A) specifically prohibits prejudicing another candidate by pro-
moting “feelings of enmity or hatred between different classes of the
citizens of India on the grounds of religion.” Violation of these man-
dates amount to corrupt acts and incur disqualification. The Supreme
Court considered the questions of validity and interpretation of these
provisions in Ramesh Prabhoo and other cases.” The Court held that
appeal to Hindutva is not amounting to corrupt act in the light of its
understanding as a way of life and a state of mind, and a synonym of
“Indianisation” i.e. development of uniform culture by obliterating the
differences between all the cultures co-excising in India. The Court’s
approach is subject to criticisms in scholarly circles on the ground that
equation of Hindutva to Indianness by the majoritarian elements was
not shared by the minorities, and that the Indian Constitution did not
contemplate homogenisation of culture.” However, the Court came
down heavily on the communal overtones of Shiv Sena leader Bal
Thackery’s speech, for which he was disfranchised by the President.
Some of the legislation that aimed to protect morality against abu-
sive religious practice can also be considered for their social con-
tent and reformative outlook. The Commission of Sati (Prevention)
Act, 1987, Karnataka Devadasi (Prohibition of Dedication) Act, 1982,
Immoral Traffic Prevention Act, 1956, Bombay Devadasi Prohibition
Act, 1934, Sati Pratha Regulation, 1829 are some of the social reform
measures in this regard. Stern approach about narabali (human sacri-
fice) by treating it as murder of rarest type has also exemplary effect.
Various temple entry statutes passed by provincial governments were
substituted by the Protection of Civil Rights Act, 1955. Section 3 of the
Act prescribes punishment for enforcing religious disability on the
ground of “untouchability”. All these statutory measures reflect the
legislative concern to bring reforms and order in the domain of reli-
gion. That the mainstream goal of social justice has not left this sensi-
1 SEE130;
% Ramesh Yeshwant Prabhoo (Dr.) v. Prabhakar Kashinath Kunte, (1996)
Prof. Ramchan dra G. Kapse v.
Manohar Joshi v. Nitin Bhaurao Patil, (1996) 1 SCC 169;
;
Haribansh Ramakbal Singh, (1996) 1 SCC 206.
Press, New Delhi 2002,
91 SP Sathe, Judicial Activism in India (Oxford University
Scope: An Indian Case
2003) at pp. 187-88; Seval Ididrim, “Expanding Secularism’s
Law 901 at p. 916.
Study” (2004) 52 The American Journal of Comparative
Law
~ Religion andonacnr
248 ea ea nN
hh
tive field from influencing is a remarkable achievement from the angle
of social transformation.
5.4 Reform of the law on secular lines: problems

In traditional societies, religions were more deeply influencing than
the laws. Their influence on business world, polity and family life
were due to the moral-norms they evolved in the course of application
of their precepts. Both Hinduism and Islam had prescribed detailed
regulations of human actions and relations. Because of all-pervasive
influence of religion, changes were slow, and not directly through
state.? But gradually, the law on business and governance got weaned
away from religious influénce, and secular laws got crystallised. But
the domain of family has long lasting links with religion, unless the
society undergoes thorough modernisation.
Family laws of different religious communities had been devel-
oped in the long past by taking the support from cultural elements
that included morality and religion. Since many of the family practices
revolved around religious beliefs and ritualistic practices of samskara,
attaching of religious basis and sanction to patterns of intra-familial
relations came into vogue. Local variations in the family norms and
diversity of religions contributed to multiplicity of laws. Called as per-
sonal law, it varied according to the religion of the person. But this
religious tie has only traditional importance and is relevant for under-
standing the basic concepts within the framework of human rights
and welfare. Secularisation of law in the West had set an example for
the British policy relating to reform of Indian law. The influence of
modernisation under the strong and all-pervading notions of human
rights and welfare has operated on the minds of the Constitution mak-
ers to put forward the ideology of Uniform Civil Code. The problem in
the matter of its implementation is that all the communities based on
religion are not equally enthusiastic or mentally prepared for whole-
sale change to bring a single law governing the field. Attachment to
tradition inclined them to continue the cultural links within the inti-
mate atmosphere of home. Some of the serious problems like polygamy,
easy and unilateral divorce, limits on maintenance rights and gender
discrimination in the matter of property distribution and guardian-
ship needed appropriate solutions.
The legislatures in India have shown activism in bringing personal
law reforms when the community showed signs of accepting the
*” Donald E. Smith, India as a Secular State (Princeton University Press, Princeton

1963) at p. 265.
3 “Fbid,-at pp. 269-76
Religious minorities and the law
e 249
ee a
changes. Series of Hindu Law reforms and amendments emerged as
a result of this development ever since 1950s. But, regarding Muslim
personal law’s reform, they have acted with self-restraint waiting for
initiative by the community. The post-Shah Banu®+ developments have
sharpened the issue of competence to author change in the matter of
reform of personal law. Pluralistic traditions of India defy single law’s
solution. Judiciary has consistently emphasised the need to incorpo-
rate the values of equality and personal liberty into the family law.
This superadded set of values has rightly guided the growth of law.
In interpreting the statutes and other sources of family law, judiciary
has attempted to internalise these values. Danial Latifi, Madhu Kishwar
and Githa Hariharan judgments® reflect reformative impact of human
rights jurisprudence. These exhibit the clear tendency of accommodat-
ing changes with continuity. The difficuities of bringing Uniform Civil
Code in the light of multicultural feature of society have been increas-
ingly realised in spite of judiciary’s repeated exhortation on uniform-
ity. As Gurpreet Mahajan writes, “The challenge that confronts India
today is how to ensure justice for all while simultaneously retaining its
multicultural identity. And it is this concern that has prompted many,
even in the women’s movement, to argue for gender just personal law
rather than a Uniform Civil Code.” Post-modernist critique of ineffec-
tiveness of reformative legislation due to strong traditional approaches
has also depicted about the task of balancing between continuity and
change. An elaborate discussion on family law and social transforma-
tion is carried in a separate chapter (Chapter 16).
5.5 Religious minorities and the law
5.5.1 Perspectives
Minorities are numerically smaller groups having common features
and a sense of akinness, a sense of community and unity amidst them-
selves, and sense of distinctness from the majority.” They are inev-
itable features of multicultural democracy. Their right to keep their
identity—religious, linguistic, ethnic, regional or political—intact, and
$ Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556: AIR 1985 SC 945. —
95 Danial Latifi v. Union of India, (2001) 7 SCC 740: AIR 2001 SC 3958; Madhu Kishwar
v. State of Bihar, (1996) 5 SCC 125: AIR 1996 SC 1864; Githa Hariharan v. RBI, (1999) 2 SCC
228: AIR 1999 SC 1149. a
Cultural
% Gurpreet Mahajan, “India Exceptionalism or Indian Model: Negotiating
Will Kymlick a and
Diversity and Minority Rights in a Democratic Nation State” in
Press, New York 2005)
Baogang He (Eds.), Multiculturalism in Asia (Oxford University
at p . 288, 298.
ay, Calcutta 1968)
” Humayun Kabir, Minorities in a Democracy (F. K. Mukhopadhy
at p. 8.
250 _ Religion and Law
e
ee a n
their right not to be discriminated in access to various resources and
opportunities, and their right not to be regimented have not only com-
ponents of human rights but also have the potentiality of infusing con-
fidence for dignified survival. As multiplicity of groups constitutes set
of diverse power centers, the functioning of democracy becomes more
effective by an approach of equity towards the less powerful. It is the
lesson of history that countries, which oppress minorities, ultimately
suffer, whereas those that allay their fears and leave them to live with
dignity flourish. As the UN Declaration on Minorities (1992) empha-
sises, the constant promotion and realisation of the rights of persons
belonging to national or ethnic, religious and linguistic minorities, as
an integral part of the development of society as a whole and within
a democratic framework based on the rule of law, would contribute to
the strengthening of friendship and cooperation among peoples and
states. While opportunities are given under the Indian Constitution
to minorities through guarantee of fundamental rights for conserva-
tion of their distinct culture and for establishing and administering
the educational institutions of their choice, the special treatment for
the minorities has been subject to the requirement of non-abuse and
avoidance of maladministration in the background of overarching
principle of equality.” India has a long track record of accommodat-
ing the variety of minorities within the national fold. Secularism is
instrumental for protection of religious minorities and for establishing
a harmonious society.
5.5.2. Problems and solutions
5.5-2(a) Communalism
One of the greatest problems that the multi-religious societies have
been facing: is occurrence of communal riots and collective violence.
Communal conflicts create sense of insecurity, deprive human lives,
retard economic development, loosen the bonds of unity and corrode
the very basis of national solidarity.°° They occur because of mutual
incompatibilities and antagonisms amidst religious communities, eco-
nomic rivalries and heart burns, sense of frustration and suspicion, and
politically orchestrated intemperance, although their actual eruption
might be triggered by reasons ranging from silly to serious ones. Over
the issues of legal right on place of worship, defilement of it, routes and
progress of procession, playing of music, use of amplifiers, flying of
*® Ibid, at p. 15.
” Arts. 29(1) and 30(1). For case law analysis, see, P. Ishwara Bhat,
Fundamental Rights
(2004) Ch. 12.
See, for discussion, Humayun Kabir, supra, n. 97 at p. 62.
Religi
noo
o ous minori
RSLS n ties andSythe
te An law 251
s en
rrr ce
kite, slaughter of cows, forced or fraudulent conversions, media abuses
and the boy-girl relations communal riots have occurred in the past.
Weapons ranging from conventional ones to terrorist equipments and
bombs have been used. It has been considered that the instances of
communal riots and their severity have been escalating and spreading
from local to state, national and sometimes, international level also.
Purely local or personal issues get alarming attention. According to
TY. Sathyamurthy, Communalism in the Indian context since inde-
pendence exposes the relationship of domination and subordination
between the Hindu majority and various minorities. It is the exploita-
tion of religion and religious sentiments that render religions innocent
victims of darker forces of human nature.’** Yogendra Singh considers
that communal violence erupts out of ethically rootless economism
here or political opportunism there; it is not anchored in commitment
to religious values, which have been maintained by tradition of plural-
ism; but it thrives on the exploitation of deprivation anxiety.
During the pre-colonial period, occurrence of communal riots was
rare because of political equation that the ruler could either command
or control through state force, or persuade through grand vision of tol-
erance. With the emergence of foreign rule, the Hindu-Muslim antag-
onism grew especially on matters of place and manner of worship.
Twelve major communal riots recorded in the governmental records
during the period between 1800 and 1920 were arising from disputes
on places of worship, defilement by maiming of idols or interference
with performance of festivals.’° Communal riots in Bengal during
1890s have been traced to intense competition in the jute mill labour
market caused by an over-supply of cheap migrant labour.'” Ayodhya
11 Annual Reports of the Minority Commission have extensively documented the

cause, course and consequences of communal riots and the remedies provided by the
state.
2 Ashis Nandy, “The Twilight of Certitudes: Secularism, Hindu Nationalism and
other Masks of Deculturation” in Veena Das (Ed.), Tradition, Pluralism and Identity (Sage
Publications, New Delhi 1999) at pp. 401, 406-07.
3 TV, Sathyamurthy, Social Change and Political Discourse in India, Vol. III; Region,
Religion, Caste, Gender, and Culture in Contemporary India (Oxford University Press,
Delhi 1996) at p. 30. . sae
104 Mark Jurgensmeyer, “The Logic of Religious Violence” in T.N. Madan, Religion
in India (Oxford University Press, Delhi 1999) at p. 382.
5 Yogendra Singh, Social Stratification and Change in India (2nd Edn., Manohar, New
Delhi 2002) at p. 237. : ars te
16 Gyanendra Pandey, “The Colonial Construction of ‘Communalism’: British
Wings on Banaras in the 19th Century” in Veena Das (Ed.), Mirrors of Violence:
ty Press, Delhi 1990) at
Communities, Riots and Survivors in South Asia (Oxford Universi
. 94, 96-100. .
Jute Mill-hands in
PP Dipesh Chakrabarty, “Communal Riots and Labour: Bengal’s
the 1890s” in Veena Das, supra, n. 106 at p. 146.
252 . ~ Religion and Law
eee
ee
witnessed major communal riots in 1855, 1885 and 1934, over the issue
of Ram Janma Bhoomi and Babri Masjid.*°® Communal representation
and communal quota introduced by the British had wedged further
the differences between the Hindus and Muslims. Gandhiji’s desire to
secure permanent Hindu-Muslim unity had little chance of fulfilment.
Tarachand viewed that the causes of communal antagonism were
deep, as their roots went down the foundations of social, economic
and political foundations of Indian society; the possible transforma-
tion was also obstructed by the British political power." Whether it
was a failure of British policy for peaceful transfer of power to united
India, or a failure of the Gandhian doctrine of non-violence, or a cul-
mination of clash of personalities or misunderstanding with no mood
to compromise, the verdict of history was anyway partition, a fruition
of two-nation theory." The haste and hurry with which it was carried
out, the communal holocaust with which it proceeded, and unprec-
edented scale of violence it accompanied mark the sad pages of his-
tory. The measureless pain of the catastrophe is shocking, as 600, 000
human lives were lost and 14 million people were involved in pitiful
migration.""* Gandhiji’s appeal to people, his persuasion through fast
and efforts to restore peace, followed by administration’s stern meas-
ures brought some normalcy.
In the 1950s the average number of communal riots was 65 per year,
and they were of minor m2gnitude; in 1970s the average rose to 367.1
While the year 1961 witnessed serious communal riot in Jabalpur, the
period 1964-70 saw an upswing in communal riot.“> Gujarat, Bihar
and Uttar Pradesh became notable sites of clashes. Electoral politics
and use of sectarian forces kept the communal frenzy high. In 1980s
the occurrence of communal riots in Moradabad, Allahabad, Godhra,
Hyderabad and Bhiwandi, Meenakshipuram and other places had roots
in economic, political and cultural reasons." The Blue Star operation
in 1984 to comb out the terrorists and their huge collection of weap-
ons, and the anti-Sikh riot unleashed in New Delhi and other places
after the assassination of Mrs Gandhi were instances of orchestrated
= Harold A Gould, “The Babri Masjid and Secular Contract” in Veena Das (Ed),
Tradition, Pluralism and Identity (Sage Publications, New Delhi 1999) at pp. 381, 382-84.
Tara Chand, History of the Freedom Movement in India, Vol. Il (Publication Division,
"See, for incisive analysis, H.M. Seervai, “Partition of India: Legend and Reality”
(N.M. Tripathi, Bombay 1994) at p. 168.
"I Tbid, at p. 139.
a Upend ra Baxi, “Violence, Dissent and Development” in Robert F. Meagher, Law
and Social Change: Indo American Reflections (N.M. Tripathi, Bombay 1988) at pp. 72, 86.
- Ashish Banerji, “Comparative Curfew: Changing Dimensions of Communal
Politics in India’ in Veena Das, supra, n. 106 at pp. 37, 41-42.
"4 Ibid, at pp. 54-55.
Religious minorities and the law 253
SS SS Say 8 SR RR rr
communal temperament.’ With the soft-pedaling of religious ques-
tions by the Government, quick succession of events took place result-
ing in destruction of disputed Babri Masjid. It also marked, in the
words of Harold A. Gould, the end of five centuries of moral contract
that symbolised ethno-accommodative state having latitude for diver-
sity."*° The violence unleashed after the incident, Bombay serial bomb
blast and recurrence of communal riots in Godhra were sad deviances
from the concept of harmonious society.” The protracted cross border
terrorism resulting in killing of Amarnath pilgrims and defenseless
devotees of Swamy Narayan Temple at Gujarat (2002) have also dis-
turbed the social health. In August 2008, a two months’ old agitation
in Jammu and Kashmir on grant of land for Amarnath pilgrims’ use
ended with recognition of limited rights of users of the land without
right to establish permanent structure."®
A close analysis of the above developments brings out social, eco-
nomic and political reasons and consequences annexed to communal
question. Communalism’s urbane character, the losses to the proper-
ties of middle and low class traders in its course, and economic rival-
ries and deprivations sharpening the differences require vigilant and
curative attention. According to Upendra Baxi, communal violences
aim to achieve certain strategic interests of dominant groups, and in
fact, result in fragmenting the urban poor and disquieting the social
formation."
The perpetrators of communal riots come under the purview of pro-
visions of Indian Penal Code such as Sections 142, 143, 144, 146, 147,
148, 150, 153, 153-A, 159, and 295 to 298. The offences include formation
of unlawful assembly, causing riot, hate speech against religion, defile-
ment of place of worship, outraging the religious feeling, disturbing
the religious assembly, and trespassing of burial places. Arms Act and
regional laws on maintenance of local tranquility also regulate acts of
assemblies. Efficacy of the criminal justice system in detection, suc-
cessful prosecution and imposition of appropriate punishment would
go a long way in creating confidence amidst people about communal
harmony. The line of cases decided under Sections 153-A and 295-A
relating to hate propaganda against specific religion or practice shows
that the legal system has been sternly dealing with such propaganda
"5 See, Amrit Srinivas, “The Survivor in the Study of Violence” at p. 305 and Veena
Das, “Our Work to Cry: Your Work to Listen” at p. 345, supra.
supra, r.
16 Harold A. Gould, The Babri Masjid and the Secular Contract in Veena Das,
2002
Fe a eels killing of karsevaks returning from Ayodhya by train in
1000 lives.
was followed by widespread communal riot that took a toll of
18 The Hindu, 1-9-2008.
19 Upendra Baxi, supra, n. 112 at p. 89.
__ Religion and Law
254
ee
hmam, Ranji Lal
and allowing fair criticism. In cases such as Veerabra
speeches outrag-
Modi, Narayan Das and Ramaswamy™, publications or
eas truth-
ing the religious feelings were regarded as offences wher
ng under
ful statements and reasonable criticisms were held not comi
aswamy
these provisions. The Supreme Court in Veerabadhran v. E.V. Ram
the religions of
Naicker2* observed, “The majority can no more insult
minorities than the latter can set out to outrage the religious feelings
of the majority. This is a feature of India which goes far to justify the
claim to be a secular state in the sense that there is no preference for
the religion of the majority of the inhabitants.”
Under Section 144 of the Criminal Procedure Code, the District
Magistrate or Sub-divisional Magistrate or any Executive Magistrate
is vested with the power of issuing written order directing any person
to abstain from certain acts in order to danger to human life, health or
safety, or disturbance of the public tranquillity or a riot. Reasonable,
impartial and timely application of this power is of great importance
in mob management and restoration of public order in case of com-
munal conflicts. The administration has to work through the police
stations, and with full awareness about the local situation. According
to Humayun Kabir:
“In any disturbance, only a very small minority of the people takes an
active part. They are perhaps not even five per cent of the total popula-
tion, but once a riot has started, many other elements come in. Some
come for loot, others con e for wreaking vengeance and some are swept
by passion once the incidents begin. The hard core of criminals who
organise such riots are few in number and almost invariably known to
the officers in charge of police station.”
An imaginative stitch in time by way of sternly dealing with the
miscreant elements or by tactful policy, often saves the society from
calamity. Two instances of tact can be cited here. The first one takes us
to the experience of Gandhiji in South Africa, where a mob full of fury
with Gandhiji was kept in good humour by a police officer in order to
allow Gandhiji’s escape through another route, and thus avoid greater
harm.’ The second is an instance in which a District Magistrate eased
the tension of two groups by a clever idea. A religious procession car-
ried out by Muslims with Tazia insisted to cut the branches of peepal
120 N. Veerabrahman v. State, AIR 1959 AP 572; Ramji Lal Modi v. State of U.P., AIR
1957 SC 620: 1957 SCR 860; Narayan Das v. State, AIR 1952 Ori 149; Public Prosecutor v.
Ramaswamy, AIR 1954 Mad 258.
Bt (1959). 2'SG} at pus:
: or Kabir, Minorities in a Democracy (F. K Mukhopadhyay, Calcutta 1968)
at p. 58.
a M.K. Gandhi, Mahadev Desai (Trs.), An Autobiography or The Story of My
Experiments with Truth (Navajivan Publishing House, Ahmedabad 1940, 1976) at p. 145.
Religious
ceminorities
Ce ee andSthe
c law 255
tree stretching over the street in order that the Tazia could
proceed
without bending its head. Hindus objected to cutting the branches
of
peepal tree, as it was an object of worship. The officer resolved the
row
by getting the street dug and allowing the Tazia to pass without bend-
ing itself or hurting the peepal tree. Moral of the story is that deepen-
ing of the faith in tolerance shows the way for harmony.
About composition of the police force to deal with communal riots, it
has been felt by some writers that a judicious inter mixture of officials
from different areas, communities and castes at lower levels would
make the state force impartial and therefore act as an additional insur-
ance against riots and disturbances.4 Regarding prosecution of per-
sons involved in communal riots, the practical experience has been
that because of want of evidences prosecutions do not end up in con-
viction. As Humayun Kabir has observed, “There is a general reluc-
tance on the part of the public to give evidence before the police, and
this reluctance is greatly enhanced whenever the incidents have com-
munal, caste, linguistic or regional colour.”*5 The instances of hesita-
tion to adduce evidence, giving of hostile evidence and perjury have
come to the surface in the prosecution of Godhra communal rioters
especially in the Best Bakery case’®.
The role of NGOs in preventing or curing communal disturbances
has been emphasised by NCRWC. It has observed:
“Past experience indicates that in sensitive areas and localities of the
country where inter-religious conflicts have sprung up out of trivial
incidents resulting in conflagration, extensive damage to life and prop-
erty. The setting up of “Mohalla Committees” with the participation
of prominent members of different communities to take note of early
warning symptoms and alerting the administration in preventing them
have produced enduring beneficial results. In particular, the endeav-
ours made in Bhiwandi, in the State of Maharashtra, after the tragic riots
there, have emphasised the value of such measures.”"77
The Commission recommended the setting up of an inter-faith mecha-
nism to promote such civil society initiatives. In the Commission’s view,
this could be done under the auspices of the National Human Rights
Commission set-up under Section 3 of the Protection of Human Rights
Act, 1993. Section 12 of the said Act could be amended by the addition
of clause (k), which shall read as under, “(k) promoting through civil
society initiatives, inter-faith and inter-religious harmony and social
solidarity.”
124 Humayun Kabir, supra, n. 122 at pp. 58-59.

es Tid: ,
26 Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158: 2004 SCC (Cri) 999.
27 Report of the National Commission to review the working of the Constitution
(2002) para 3.34.1.
and Law
256
Sai net mt np te EN
_ Aion ae
Relig
ism
Other measures suggested by scholars for combating communal
pen-
in action include imposition of personal liability by imposition of
,
alty transfer and other disciplinary action upon the District Magistrate
Collector and police officers in whose area the disturbance took place;
coordination of the police department with the administration, admix-
ture of officials of different communities at lower levels.°
The National Commission on Minorities has made extensive docu-
mentation of causes and courses of communal riots, and estimation
of losses and adequacy of remedies. Reports from States and Union
Territories are annually sought; team visits or inspections by mem-
bers or officers are made soon after occurrence of riots; and appropri-
ate remedies are suggested by the Commission. It has been noted by
the Commission that generally state police force keeps watch over the
communally sensitive and hypersensitive areas especially in festival
occasions, get intelligence report and take precautionary measures.
Measures taken to tackle riots that have occurred include: deployment
of additional police for patrolling and protective duties; preventive
arrest; constitution of Peace Committee; close watch on communal
organisations and anti-social elements; prosecution of offenders; and
settlement of disputes if possible.” Ex-gratia grant of money in case of
loss of property or death or injuries and medical treatment have been
the normal measures of the state. Long-term remedies include provid-
ing of better civic facilities, restoration of proper communal balance
in the police force, frequent search of notorious premises and comb-
ing out of communal elements and weapons, and formation of per-
manent Peace Committee. State’s duty to compensate in case of loss of
house hold properties and other essentials in case of communal riots
has been recognised by the judiciary in some cases. The Commission
has made recommendations for effective investigation and prosecu-
tion; thcrough inquiry before grant of arms licence; ban on explosives;
avoidance of use of religious places for political purposes; stern deal-
ing of persons involved in hate speech; and self-restraint on the part
of media.
5.5-2(b) Social and economic backwardness of religious minorities:

from the earlier efforts to Rajinder Sachar Committee Report
The social, economic and political conditions of religious minorities
have been a focus of concern and attention for the government and the
political elite. The Minorities Sub-Committee set-up by the Congress
in 1957 referred to the feeling of discontent expressed by the Muslims
28 See, Humayun Kabir, supra, n. 122 at p. 60.

' Ninth Annual Report of Minorities Commission, (1986-87) Ch. 6; Twelfth
Annual Report of Minorities Commission (1989-90) Ch. 3.
Religiou
Be ee s minoriti
eeestie
and theen
law 257.
rr rrr rrr
and Christians (except the Syrian Christians) about the economic and
educational backwardness of them; lack of proportionate representa-
tion in lower ranks of military, postal and railway services; inadequate
share in the licences and permits for establishing industry, trade and
commerce; and lack of proportionate opportunities in political posi-
tions.°° Humayun Kabir viewed that educational and economic back-
wardness reacted upon each other and made a breakthrough more
difficult for the minorities; and as a result, it disabled their children
to have access to professional courses.’ He suggested for a system of
national education creating a sense of national solidarity; and for fair
share in services, cultural celebrations and the press activities.
The Gopal Singh Committee appointed by the Central Government
examined the problems of all minorities including Scheduled Castes
and Scheduled Tribes, and submitted its report in 1983. It maintained
that there was a “sense of discrimination prevailing among minori-
ties” and that it “must be eliminated, root and branch, if we want the
minorities to form an effective part of the mainstream.” It recom-
mended for proportionate nomination of minority community mem-
bers to governing bodies of public undertakings and banks; and for
adequate representation of them in every recruiting agency or services
commission.
The Rajinder Sachar Committee, appointed by the Central
Government in 2006 to evaluate the social, economic and educational
status of Muslims, has called for path-breaking efforts to include
and mainstream them—efforts that will at once address the inequi-
ties experienced at all levels and in all spheres by the community and
eliminate its perception of discrimination. It suggested the adoption
of suitable mechanisms to ensure equity and equality of opportunity
to Muslims in residential, work and educational spaces. The report
emphasises that these objectives can be achieved only “when the
importance of Muslims as an intrinsic part of the diverse Indian social
mosaic is squarely recognised.” It recommends the creation of an
Equal Opportunity Commission, modeled on the UK Race Relations
Act, 1976, to look into the grievances of religious minorities. According
to the Committee, “It is imperative that if the minorities have certain
perceptions of being aggrieved, all efforts should be made by the state
to find a mechanism by which these complaints could be attended to
expeditiously.» The report notes that the community exhibits “defi-
cits and deprivation” in practically all dimensions of development.
1390 Humayun Kabir, supra, n. 122 at pp. 40-43.
31 [bid, at p . 52-56.
e, 15-12-2006,
# Venikitesh Ramakrishnan, “Community on the margins” Frontlin
at p. 4.
133 [bid, at p. 7.
Mo eee
above the SCs/STs but
“In fact, by and large, Muslims rank somewhat
General (mostly
below Hindu OBCs, Other Minorities and Hindu
with large
upper castes) in almost all indicators considered.” In States
in...West
Muslims populations, “the situation is particularly grave
adds to the “develop-
Bengal, Bihar, Uttar Pradesh and Assam.” What
discrimi-
ment deficit,” is the perception among Muslims that they are
of 13.4
nated against and excluded. Though the Muslims have a share
4.9
per cent of population, their representation in government jobs is
per cent at the national level. The Head Count Ratio of Muslims in the
matter of poverty is 31 per cent which is second only to SC/ST in rural
area (35 per cent) whereas their HCR figure in urban area is topmost
(38.4 per cent). The extent of land ownership amidst Muslims is also
much lower than in other socio-religious categories. Only 59 per cent
of the community has literacy whereas the national average is 64 per
cent; and only 3.4 per cent of the community has completed gradua-
tion whereas the corresponding figure for non-OBC Hindus is 153 per
cent.
It is also noted by the Committee that out of 543 members of Lok
Sabha only 33 were Muslims. The Committee observed, “Given the
power of numbers in a democratic polity, based on universal franchise,
minorities in India lack effective agency and political importance.” This
denied them meaningful and effective participation in developmen-
tal process. The main positive side of the Muslim community profile
noticed by the Committee ts that it has better sex ratio, better housing
facility and less infant mortality rate (59 as against national average of
73, whereas the figure being 77 for Hindus and 49 for Christians).
The committee has favoured a group of Muslims with traditional
occupations as that of scheduled castes be designated as most backward
classes and provided “multifarious measures”, including reservation.
The panel has said Muslims in the country have three groups in terms
of their social structure. These are ashrafs, ajlafs and arzals. “The three
groups require different types of affirmative action,” said the report.
Of the three groups, arzals whose traditional occupation is similar to
that of SCs, may be designated as MBCs and provided reservation.
This particular group, the panel said, needs multifarious measures
including reservation as it remains “cumulatively oppressed”.
The Committee also recommended for the following measures: nom-
ination to public bodies; enhancing the employment share of Muslims;
legal mechanism for redressing discriminations; diversifying student
population in universities by facilitating admission of religious minor-
ity students; providing financial and other supports to initiatives built
around occupations where Muslims are concentrated and that have
4 Ibid, at p. 8; see also, Javeed Alam, “A Turning Point” Frontline, 15-12- 2006 at p. 9.
Religious minorities and the law
ee 259
e ee ee ee
growth potential; linking of madrasas to higher secondary schools; set-
ting up of Wakf Development Corporation with a revolving corpus of
Rs 500 crores.
Looking to the fact that in the background of trauma of partition,
seclusion inflicted by insecurity and disempowerment caused by fear,
the minorities suffered a long minority syndrome, the emerging poli-
tics of egalitarianism and deepening of democracy with human rights
sensitivity’® is symbolising social transformation. To quote Veena Das,
“Even legal and administrative measures for implementation of social
welfare policies are not seen as a passive medium but as the means
through which reified and alienated power flows into the smallest
capillary branches of society. In a word, those societies are engaged
in an intense interrogation of themselves.’”"° Further, the existence of
diverse communities, local and denominational, within each religious
minority has created variety of local cultural styles, practices and tra.
ditions and made the inter-community and inter-religious linkages to
influence the sharing of common civilisation in harmony.
5.5.3 Constitutional protection to religious minorities

Preamble’s reference to Secularism rejects elimination of religious
identity. While Article 25 confers religious freedom to all persons,
Article 26 recognises existence of various religious communities and
their denominations. Sikhs have fundamental right to carry and wear
kirpan. Tahir Mahmood views that the phrase “socially and education-
ally backward classes” under Article 15(4) permits identification of
beneficiary based on multiple factors including religion just like iden-
tification of beneficiary based on caste is permissible.2” However, this
is debatable issue for the reason that religion is not a definite cause
for backwardness, and is dependent on facts in each case. In Indra
Sawhney case™* the Supreme Court has considered that backward class
of persons within religious communities may also be considered for
reservation in public employment under Article 16(4). Articles 25 to
28 also constitute source of rights for minorities. Conservation of cul-
ture and language is a right available under Article 29(1) whereas right
to establish and administer educational institutions of their choice is
30(1).
conferred upon religious and linguistic minorities under Article
Right of non-discrimination in the matter of admission to educational
2006, at p. 9; see also, views of
1385 Javeed Alam, “A Turning Point” Frontline, 15-12- rity
sion inflicted by insecu
Subhasinin Ali excerpted by T.K. Rajalakshmi, “Seclu
Frontline, 15-12-2006, at p. 17. Bi
oe
136 Veena Das, supra, n. 106 at p. 1.
the Minorities Commission.
137 Note sent to the Government on July 1997 by
SCC 217: 1992 SCC (L&S) Supp 1.
138 Indra Sawhney v. Union of India, 1992 Supp (3)
260 . ~ Religion and Law
Le
Oe
nal institutions
institutions and in having grants in aid for educatio
marginalisation
[Articles 29(2) and 30(2)] also helps minorities against
St. Xaviers
in the matter of education. H.R. Khanna, J. has viewed in
interest
case that the constitutional mission was to satisfy every
and safeguard the interest of all minorities to their satisfaction. He
observed:
“These provisions (Articles 25 to 30) enshrined a befitting pledge to
the Minorities by the Constitution of the country whose greatest son
laid down his life for the protection of Minorities. As long as the Consti-
tution stands as it is today, no tampering with Minorities’ rights can be
countenanced. Any attempt to do so would be not only an act of breach
of faith, it would be constitutionally impermissible and liable to be
struck down by the courts.”
Welfare of all sections of society, compulsory primary education, uni-
form civil code and cow-protection envisaged under Part IV and fun-
damental duties of every citizen towards communal harmony have
positive implications for religious minorities.
5.5.4 Minorities Commission
Special institutional support with responsibility and power to make

investigation and recommendation has special significance for the
minorities. In order to preserve the country’s secular traditions, to pro-
mote national integration 2nd to remove any feeling of inequality and
discrimination amongst these sections of people, the Government of
India constituted a Minorities’ Commission in 1978 through adminis-
trative order. It was entrusted with the task of evaluating various safe-
guards provided to the minorities by the Central and State Governments.
It was a recommendatory body to conduct study, research and analyse
the means to avoid discriminations against the minorities. The peri-
odical reports submitted by the Commission used to sensitise for bet-
ter protection. In 1992, statutory basis was given to the Commission by
enacting National Commission for Minorities Act. The Act does not
define the term “minority”, but enables the Government of India to
notify “minorities” for the purpose of the Act. In exercise of this power,
the Government has notified five religious communities (Muslims,
Christians, Parsis, Buddhista, Sikhs) as “minorities” for the purpose of
the Act. According to Tahir Mahmood:
“A National Minority, once recognised, shall have the status of a Minor-
ity in the entire country irrespective of its local population. This will be
so even in a state, region or district where such a minority is factually
not a minority in numerical terms. In a particular state, a religious com-
munity, which is not a National Minority, may be recognised; locally, as
139
Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717.
Religious minorit
ies and the law
iepeloeem casas
etisec ae rtieemmeemarenes261
a regional minority. There is nothing in the Constitution or the law to
prevent official recognition of the same. This will not, however, change
the minority status of any National Minority in that state’”4°
Itis submitted, in the light of consistent view expressed by the Supreme
Court in a series of cases about identification of religious and linguis-
tic minorities with reference state population, accommodating such a
proposition is problematic, as it would result in identification of par-
ticular community both as majority and minority simultaneously. The
purpose of the Central Act is to give institutional support for supervi-
sion of safeguards by investigation and reporting, and not to act as
source of rights overriding the scope of constitutional rights as inter-
preted by the judiciary.
In the Report submitted in 2007, the National Commission for
Minorities headed by Justice Ranganatha Misra has recommended
for recognition of Hindus in State of Kashmir, Meghalaya, Mizoram,
Nagaland and Union Territory of Lakshadweep as religious minorities
in addition to the religious communities notified as Minorities under
the National Commission for Minorities Act, 1992. It has also recom-
mended that the criteria applied for identification of backward class
amidst Minorities shall also be applied in identifying backward class
amidst “majority” communities and providing necessary facilities for
their uplift.
The National Minorities Commission is composed of a Chairperson,
a Vice-Chairperson and five members nominated by the Central
Government from time to time amongst persons of eminence, ability
and integrity belonging to the minority communities. The Supreme
Court has observed in Misbah Alam Shaikh v. State of Maharashtra:
“...it is the duty of the Central Government to constitute: a National
Commission and it shall be the duty and the responsibility of the
National Commission to ensure compliance of the principles and pro-
grammes evaluated in Section 9 of the Act protecting the interest of the
minorities for their development and working of the safeguards pro-
vided to them in the Constitution and the law enacted by Parliament as
well as the State Legislatures..."
Under Section 9 of the Act, the Commission discharges the following
functions: bess
(a) evaluate the progress of the development of minorities under
the Union and States; .
(b) monitor the working of the safeguards provided in the
Constitution and in laws enacted by Parliament and State
Legislatures;
149 Note sent on July 1997 by the Minorities Commission.

528: AIR 1997 SC 1409.
141. Misbah Alam Shaikh v. State of Maharashtra, (1997) 4 SCC
262 _ Religion and Law
Oe
() make recommendations for the effective implementation of
safeguards for the protection of the interests of minorities by
the Central Government or the State Governments,
(d) look into specific complaints regarding deprivation of rights
and safeguards of the minorities and take up such matters
with the appropriate authorities;
(2) cause studies to be undertaken into problems arising out
of any discrimination against minorities and recommend
measures for their removal;
(f) conduct studies, research and analysis on the issues relat-
ing to socio-economic and educational development of
minorities;
(g) suggest appropriate measures in respect of any minority
to be under taken by the Central Government or the State
Governments;
(i) make periodical or special reports to the Central Government
on any matter pertaining to minorities and in particular dif-
ficulties confronted by them; and
(j) any other matter which may be referred to it by the Central
Government.
The Commission is regarded as the nation’s conscience keeper.’ From
a glimpse of voluminous annual reports submitted by the Minorities
Commission it can be inferred that it has done a great job in collection
of data, sensitisation, prompt interference and in giving suitable sug-
gestions. Team visits of the Commission to spots of communal riots and
inquiry by individual members have unearthed facts, consoled souls,
filled confidence and spurred remedial measures. Long-term policy
considerations on economic development through financial assistance
and vocational training; on education spreading from primary level to
job oriented courses; on social and cultural development by evolving
opinions about personal law development have been addressed by the
Commission in its functioning. It has acted as national clearinghouse
for information in respect of situation of minorities. The Fifteen Point
Programme for welfare of minorities launched in 1983 by the Prime
Minister has aimed at rapid socio-economic development of the minor-
ity communities. The programme has basically three approaches:
(1) tackling the situation arising out of communal riots; (ii) ensuring
adequate representation of minorities in public employment; and
(11) ensuring flow of benefits to the minorities under various develop-
mental schemes, protection of their religious property and redressing
‘2 Keynote address to the Workshop of State Minorities Commission, July 1997,”

If equality and justice for all are part of the nation’s conscience then the national
Commission for Minorities must be regarded as the Nation’s conscience-keeper.”
Peo vi ce SR Oe rr
other grievances. The Minority Commission, in the course of its func-
tioning, has concentrated on fulfilling these objectives. Gradual wean-
ing away from madrasa type of education and greater focus on gen-
eral, technical and vocational education have been suggested by the
Commission. The Commission has suggested use of banking institu-
tions, Chamber of Commerce, private industries and NGOs for better
economic position of minorities.4? Seminars, workshops and research
works organised by the Commission have tried to generate informed
opinion about harmonious society and national integration.
In the year 2005, the Parliament enacted the National Commission
for Minority Educational Institutions Act for providing additional safe-
guards to the minority educational institutions. Minority means any
community notified as such by the Central Government. The National
Commission for Minority Educational Institutions constituted under
the Act has the following functions to perform (Section 11):
(i) advising the Central/State Government on any question relat-
ing to the education of minorities that may be referred to it;
(ii) enquiring suo motu, or on petition by any Minority Educa-
tional Institution or any person on its behalf into complaints
regarding deprivation of rights of minorities to establish and
administer educational institutions of their choice;
(iii) intervening in any proceeding involving deprivation or vio-
lation of minority educational right before any court with
court’s permission;
(iv) reviewing the safeguards provided by or under the Consti-
tution or any law for the protection of educational rights
of minorities and recommend effective measures for their
implementation;
(v) specifying measures for promoting and preserving the
minority status or character of the institution,
(vi) deciding all questions relating to the status of MEI and declare
its status as such; and
(vii) recommending effective implementation or appropriate
schemes for MEI.
It appears , the statute tries to support the pro-minority judicial
approach on Article 30(1) through a statutory framework to eliminate
fears.
5.6 Conclusion
a multicultural
The human and social dimensions of religions in
of social trans-
democracy need to be looked from the perspective
(1989-90) at pp. 180-89.
13 Twelfth Annual Report of the Minorities Commission
264 a joc and
_ Religion ooLaw
i je a eM Rd
formation. Moral ideals, drive for perfection and altruistic approach
attached to religions unfold utilitarian value of religion. Basic unity
of approach in all religions does not leave them as crusading faiths.
Harnessing of the common elements and lowering down of the harm-
ful inferior practices amidst religions in the light of humanism and
welfare constitute a sound strategy to escape from the opiating effect of
religions. Secularism born out of egalitarian spirit within the religious
freedom clauses and of the express subjection of individual religious
freedom to the operation of other provisions of fundamental rights;
and long historical experience and socio-political choice have a great
say in moulding inter-religious relations and constructive approach
for social reforms within the religious community. Its curative and
creative role in social transformation has high hopes, as it deals with
unusual religious beliefs and fundamentalist policies. it is a remark-
able feat that the theme of social justice, which has been centre staged
in the country’s supreme law, has extensively wielded influence on
law governing religion. Hence, diversity of faiths is part of India’s spir-
itual heritage."
Another facet of Indian religions is that the emphasis laid on com-
passion, service, justice, unity and reconciliation has rendered religion
a real forum to rally the unifying force, transcending the divisive fac-
tors. Recent social developments have shown creative use of surplus
resources, which are voluntarily contributed by devotees to religious
institutions, for developmeatal works benefiting the society as a whole.
Feeding the masses, rescuing from calamities, providing education,
extending health service, helping the poor and resolving the disputes
have been the kinds of philanthropic acts organized by religions in
large scale and without distinctions based on religion and caste.’4* The
social capital built around religion has great potentiality in realizing
the motivation for development and welfare. Thus, the social use of
divinity for development is a creative tapping of social dimension of
religion.
The problems of religious minorities, whether arising from self-sus-
taining communalism or socio-economic marginalisation, need to be
resolved with the help of law and social action. The Sachar Committee
findings and Minority Commission recommendations emphasise
need-based long-term measures for the welfare of the minorities.
™ V.R. Krishna Iyer in “Foreword” to Tahir Mahmood, Laws of India on Religion and
Religious Affairs (Universal Law Publishing Co., New Delhi 2008) at p. 7.
“’ Pushpa Sundar (Ed.), For God’s Sake: Religious Charity and Social Development
in India, (Indian Centre for Philanthropy, New Delhi, 2002); Malcolm Harper, DSK
Rao and Ashis Kumar Sahu, Development, Divinity and Dharma: The Role of religion in
development and microfinance institutions (Practical Action Publishing, Warwickshire,
2008) at p. 13.
Conclusion 265
Ee
Since religious identity alone is a dangerous factor to be relied upon

in affirmative actions, more objective mechanisms and approaches are
required as remedial measures.
Equality in religious freedom is not only an arm of constitutional
litigation or theory in judicial discourse of secularism, it is a con-
cept to be intimately received as an attitude and behavioural pattern
in human thought, belief, words and actions. Innovative concept of
Indian secularism is both a forum and tool for social transformation
and for upholding of social health. Significantly, it is both curative
and creative in its functioning. It is instrumental for national integra-
tion and for integrating the worth of mankind to act with unity and
shed unwholesome aberrations that might have crept in unguarded
moments."#° As Zakir Hussain has said:
“What can bring us together and keep us together is not an equally
high standard of living but an equally high standard of truthfulness
to ourselves, of tolerance of ways of life, different from our own, and
effortless sense of equality as men and women. Then we can stand
before God and our conscience, united, united in humility and determi-
nation to make our lives and actions, the expression of an inner striving
for perfection.’"4
the Natio
ationa atic n Seminar,
nal Integratio
46 Khurshidi Alam Khan, Inaugural Address at ssion of India,
of the Minorities Commi
13-12-1986 extracted in the Ninth Annual report
(1986-87) at p. 157.
47 Quoted, Ibid, at pp. 159-60.
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CHAPTER 6
LANGUAGE AND LAW: TOWARDS

EQUALITY IN LANGUAGE RIGHTS?
6.1 Language planning and social transformation

Language is a medium of communication. It is a human phenome-
non, and a constant applicative construct of society. It provides access
to information, skill, well-being, wealth and means of political and
social participation in addition to being an expression and store house
of culture.’ It is an instrument for the growth of human being’s cog-
nitive power. It is a vehicle of thought, expression and information.
Functionally, language and thought grooves are so inextricably inter-
related with each other that the life of thought is very much inherent
in the life of language symbols of that thought.? Along with shaping
and reflecting specific culture, every language presupposes a concep-
tual “grid” or map through which all experiences are received and
transmitted? As observed by Jawaharlal Nehru, “It (language) is the
poetic testament of the genius of a race and a culture, and the living
embodiment of the thoughts and fancies that have moulded by them.
Words change their meanings from age to age and old ideas transform
themselves into new, often keeping their old attire.” In it are synthe-
' J.N. Lyon and RG. Atkey, Canadian Constitution in Modern Perspective (1970) at
.
p- 590.
2 Whorf, Language,Thought, and Reality (1956) at pp. 134-59 cited by Reed Dickerson,
infra,.n. 3 at p. 11.
3 Reed Dickerson, The Fundamentals Legal Drafting (Little, Brown and Co., Boston
1965) at p. 11. .
4 Jawaharlal Nehru, The Discovery of India (9th Edn., JNM Fund and Oxford
University Press, New Delhi 1989) at p. 165. He viewed living language as a throbbing,
vital thing, ever changing, ever growing and mirrorin g the people who speak and
268 Language and Law
OOO
sised community’s nostalgias of the past, transactions of the present
and the dreams of future. Thus, languages are connected to the society
as outputs of speech communities’ efforts of articulation, and inputs
for their interaction. The social existence of a language comes from
its construction and use by the speech community. Use of language
for cultural and political symbolisation is determined by social norms
and recognition of its social dimension. For example, both the flourish
and decline of Sanskrit can be traced to the social policy and com-
munity’s participation. Since language is a part of culture, the sense
of aesthetics and rationalism is derivable from the language tradition
developed by the speech community, making it an intimate and valu-
able possession and proud badge of identity.
Language is developed for spreading literacy, for dissemination of
knowledge through education, for serving as an effective vehicle of
intra state administration and market participation, for exchange of
information through translation and to make bilingualism and mul-
tilingualism feasible. Being a prominent social resource, it has a place
in social planning and national development. Language has been an
important means of control and domination, and has worked for mobi-
lising the political force to counter hegemony and to assert self-deter-
mination? Being relevant for social change, the decisions about lan-
guage choice and language change are vital.® In a multilingual country
like India, where many languages compete for space, functions, speak-
ers and power, equitable brokering of linguistic power becomes essen-
tial for social health. As a vital component of community’s identity, it
seeks legitimation with a self-perception of well being and cultural
consciousness’ Use of law in language planning has both potential-
ity and limitations. The potentiality is that reflecting sovereign will,
law will be dictating the language choices in the matter of education
and use in public forum and regimenting the language behaviour of
people. Language flourish, harmony or language loss arises from such
planning. Formation of linguistic states, constitutional determina-
tion of language policy of the nation and regions and protection of
write it. Unity of India (Collected Writings of Jawaharlal Nehru) (1937-40) p. 242.
° Tove Skutnab-Kangas, “The Role of Language in the reproduction of inequality:
How minority resources are invalidated?” a seminar paper presented at CIIL, Mysore
March 1995 citing from Bourdieu (1977) and Foucault (1980).
° A.K. Srivastava views: “Languageis closely linked with social change. With proper
planning of language, social change can be brought about.” “Language Planning in
Multilingual contexts: Educational and Psychological Implications” in E. Annamalai,
B.H. Jernudd and Joan Rubin, Language Planning (CIIL, Mysore 1986) at p. 43.
” Nathaniel Berman views, “Language plays a key role in creating, defining, and
developing an organic community.” “Nationalism Legal and Linguistic: The Teachings
of European Jurisprudence” in (1992) 24 New York University Journal of Internati
onal
Law and Politics 1515 at p. 1520.
Language planning and social transformation
e r 269
the interests of linguistic minorities are examples of use of law in lan-
guage planning. Unlike voluntary planning, state-initiated plan has
greater success rate. But, the limitations are also vital. First, language
planning through law is more a political decision making than a prod-
uct of organic community's free choice.’ Second, the propriety of state
language planning implies a rejection of a strict connection between a
particular language and national identity? According to Alain Prujner,
“A language is a result of a social consensus, resulting froma very long
evolution. To tamper with such a consensus by regulations is diffi-
cult, even dangerous if the state is unable to implement its decisions.”°
Third, law is not the only instrument for language planning. Public
opinion, social convenience and market needs influence language
choice. Fourth, human rights values, especially minority rights and
cultural rights, and considerations of linguistic harmony control the
policies of language planning. In the backdrop of these factors, law-
society interaction has become central phenomenon in the formulation
and following of language formula. )
With the emergence of numerous avenues tur occupational mobil-
ity and technological developments, language identities have differ-
ent functions to perform in a diaspora situation recognising both eco-
nomic and cultural role of language. Yogendra Singh views:
“Languages are increasingly becoming more competitive, socially
and culturally differentiated and serve as an instrument of integration
within the structure of economy and polity. They also constitute means
of social mobility and restructuration within societies...Languages,
as cultural endowment, enter the arena of legitimation through their
instrumental linkages with institutions such as state, market, classes
and cultural values and ideologies.’
Law as a policy instrument of the organised political society has a
definite role in language planning and development on these lines or
in response to these factors. As a basis of social identity,” in addition
to being a vehicle of thought and speech, language is a reckoning force
in politico-cultural decision making.
8 Bjorn H. Jernudd and Jyotindra Das Gupta, “Towards a Theory of Language

Planning” in Joan Rubin and B.H. Jeznudd, Can Language be Planned? (1971) at p. 196.
9 Nathaniel Berman, supra, n. 7 at p. 1522. ;
al
1 Alain Prujner, “The Use of law in Language Planning” in E. Annamalai et
supra, n. 6 at pp. 73-81.
2000) at
f Sibeider Sine Culture Change in India (Rawat Publications, New Delhi
. 139-40. a
New Delhi 2000,
ae Andre Beteille, Antinomies of Society (Oxford University Press,
at the same time
2002) at p. 280, “It unites those who are of the same tongue and
divides those who are of different tongues.”
270 _ Language and Law
eee
OM
6.2 The unifying and divisive features
“Language can be a powerful unifying as well as divisive force
depending on how it is handled,” observed Sarkaria Commission on
Centre-State relations.”? It is the social approach or legal policy on lan-
guage that ultimately decides how the emotional factor of language
should be maneuvered, and its rational dimensions are to be properly
ordered. According to Udaya Narayana Singh, “To the extent that a
community otherwise fractured by different ethnic groups, classes,
castes, sex-groups can be bound together by a common tongue is its
‘unifying’ function. At the same time, that language can also act as a
dividing force cannot be doubted, because it defines division among
people who may otherwise belong to the same region, religion, ethnic
group, class or caste.”"4 It is a social reality in India that these two fac-
tors coexist, and by themselves do not harm social harmony. It is the
discriminatory attitude and policy that becomes problematic. In fact,
culturally, the linguistic differences are not deeply pervasive as the
Indian languages share common tradition and social experience and
benefit through mutual interaction. Historical experiences disclose
that when hearts meet, if not in fullness of brotherhood but at least as a
compromise formula of coexistence and mutual forbearance, linguistic
divisions do not divide the country. But political and economic factors
have influenced partisan policies disturbing linguistic tolerance and
emotional unity. A brief z.count of the profile and history of Indian
languages would point out the problems of difference and the possible
remedies to cure them.
In India, which has the population of 106 crores there are 22 sched-
uled languages spoken by about go per cent of the population and 93
non-scheduled languages and about 1500 minor languages spoken by
the rest of the population. It is a veritable forest of languages.'® The
population ratio for principal language groups in India is: Hindi 39
per cent. Telugu 8.2 per cent, Bengali 7.8 per cent, Marathi 7.5 per cent,
Tamil 6.8 per cent. Urdu 5.3 per cent, Gujarati 5.0 per cent, Kannada
4.1 per cent, Malayalam 3.9 per cent. Oriya 3.5 per cent, Punjabi 2.8
per cent, Assamese 1.6 per cent.* Concentration of each speech com-
munity in particular geographical area has provided territoriality
to the language use, and the consequent territorial claims.” But it is
8 20.1.02, Vol. I (1988) at p. 525.
' Udaya Narayana Singh, in Veena Das (Ed), Sociology and Social Anthropology
(Oxford University Press, New Delhi 2003) at p. 695. :
2 ee Haldar, Languages of India (National Book Trust of India, New Delhi 2000)
at p. 9.
ifCensus Report, 1991.
” Suniti Kumar Chatterji, “Linguistic Survey of India: Languages and Scripts” in
Cultural Heritage of India, Vol. I (2nd Edn., Ramakrishna Mission, Calcutta 1958, 2001
The unifying and divisive features
a 271
impossible to have exclusivity in language-territory nexus owing
to
migration and mobility of people for jobs, education and other activi-
ties. The People of India survey reveals that the percentage of bilin-
gualism had grown from 13.4 per cent in 1971 to 64.2 per cent in 1991.
About 58.91 per cent of speech communities listed in Eighth Schedule
are now bilingual. The interspersed character of different linguistic
groups in mainstream language-territory has aspired and persuaded
for protections against harassments.
In India, the multiplicity of languages is largely a product of long and
composite development of 5000 years, geographical isolations, racial
and caste differences, lack of communications, lesser occupational
mobility and in-pouring of waves of people coming from different
countries as traders, invaders and settlers."* Because of these complex
factors, several regional languages emerged. As S.M. Katre observes,
“History demonstrates that, from times immemorial, India has been a
multilingual country, each language having a certain region in which
it was supreme, but none of these regions truly constituted unilingual
kingdom or principality.” However, use of languages like Sanskrit,
Persian, English and Hindi at different periods of history connected
the different language groups all over the country.” Traditionally, the
refinement of regional dialects into cultivated vernaculars took place
by gathering much vocabulary from Sanskrit, which was a storehouse
of knowledge in science, religion, philosophy and art, and by getting
nourishment from common fountainhead of composite culture.* The
Sanskrit Commission has opined that Sanskrit is the “embodiment
of Indian culture and civilisation” and that the Indian people looked
upon Sanskrit as the binding force for the different peoples of this great
country from Kerala to Kashmir and from Kamarupa to Saurashtra.
The Commission found that though the people of this country differed
in a number of ways, they all were proud to regard themselves as par-
ticipants in a common heritage; and that heritage emphatically is the
at pp. 55-65.
18 D.P. Pattanayak, Language, Education and Culture (CIIL, Mysore 1991) at pp. 4-6,
22-24; Ram Gopal, Linguistic Affairs of India (Asia Publishing House, Bombay 1966) at
pp. 10-15, 21-25.
19 SM. Katre, cited by T.K. Oomen, Sociology (Eastern Book Co., Lucknow 1993) at
p: 331.
2 For a detailed discussion see, Jay Chand Narang, “Regional Structure of India
in relation to Language and History” in Vol. I, Cultural Heritage of India, supra, n. 15
at p. 33; Gopal Haldar, Languages of India (National Book Trust of India, New Delhi
2000). fe ce
a hessPattanayak, supra, n. 18 at pp. 98-99; Suniti Kumar Chatterji, Contributions
pp. 76-
from different Language—Culture Groups” in Cultural Heritage of India, Vol. 1 at
90.
e
Oe oe e
ious tol-
heritage of Sanskrit. With a trial for grand process of relig
action, diverse
erance, popular Bhakti movement and mercantile inter
.”
Indian languages developed as different petals of the same lotus
-vis
Languages got developed only with their use in interactions vis-a
common people. The interconnections amidst languages owing to
descent, absorption and exchange of vocabulary have enabled bilin-
gualism and mutual tolerance. Thus, linguistic groups were tuned
to the needs of linguistic tolerance and reception of a link language
without losing linguistic identity. Absence of any single majority lan-
guage of overwhelming power, coexistence of several minority lan-
guages and abandonment of the policy of imposition of one over the
other had stolen steam out of the wind, and largely desensitised the
language issue. Drawing support from the common mine of Sanskrit,
or from suitable colloquial speech, all the languages have grown in
an atmosphere of common ideology. As Jay Chand Narang comments,
“These are to be the sure foundation of Indian unity in a federation of
homogeneous unilingual states.”4
Four principal groups of Indian languages are: (I) Indo-Aryan:
Sanskrit, Hindi, Marathi, Bengali, Oriya, Assamese, Kashmiri, Nepali,
Konkani, Punjabi and Urdu; (II) Dravidian: Telugu, Tamil, Kannada,
Malayalam and Tulu; (III) Mongoloid: Manipuri, Tripura, Garo, Bodo;
(IV) Tribal languages and dialects: Gond, Oraon, Santal, Mundari, etc.”
Linguistic Survey of India records 179 languages and 544 dialectics
whereas Census Records show more than 800 languages. The geo-
graphic locations of these groups are respectively Northern India,
Southern India, North-Eastern India and Central India. The territorial
base of different linguistic communities has raised hopes for group
solidarity and collectivism. The protest against Partition of Bengal in
1905 expressed faith in territoriality of linguistic community to keep
the nexus between the native soil and culture intact. It is in such group
solidarity, cultivated through historical times that, the collective life
of people and their culture flowered. Suniti Kumar Chatterji writes,
“On the basis of languages as one of the fundamentals of nationalism,
particularly of the modern type, it would have been quite easy and
just in the nature of things for the people of India to have split up into
a number of distinct nations. But transcending the diversity of lan-
guage is the cultural unity which is shared by all the various linguistic
* Sanskrit Commission report at pp. 80-81.

a DE Pattanayak, supra, n. 18 at pp. 98-99; K.M. Munshi, “Introduction” in Cultural
Heritage of India, Vol. V (2nd Edn., Ramakrishna Mission, Calcutta 1958, 2001) at
pp. 3-9.
*4 Jay Chand Narang, supra, n. 20 at p. 52.
* Suniti Kumar Chatterji, supra, n. 17; Gopal Haldar, Languages of India (National
Book Trust of india, New Delhi 2000) at p. 18.
The unifying and divisive features 273
communities of India through Sanskrit.” The development of these

languages through religious literature with common themes at vari-
ous stages of history mitigated the depths of division. K.M. Munshi
views, “Beneath the diversity of languages and literature in India
flows an undercurrent of basic unity of culture and civilisation rooted
in the fusion of Sanskrit and Sanskritic languages with the Dravidian
languages and other local dialects.’”7
Ignoring the egalitarian ethos regarding languages, linguistic emo-
tion is sometimes flared up in post-colonial period in the delineation
of inter-state boundaries, in framing the policy on Official Language,
in resolving Inter-State water disputes, and in providing access to busi-
ness, public employment or education. As can be discerned in these
deviant instances, it is the economic calculation of cost and benefit
that is primarily responsible for hegemonic policies of linguistic states.
Sometimes, the policy of language imposition has also faced retalia-
tion. While anti-Hindi agitation was responsible for retention of the
status quo of the position of the English language and thus maintain
linguistic harmony, State Government's active involvement in foment-
ing language hatred was seriously objected by the Supreme Court. In
R.R. Dalavai, nullifying the scheme of assisting anti-Hindi agitators
the Supreme Court observed, “In our opinion, the pension scheme for-
mulated by Tamil Nadu Government contains the vice of disintegra-
tion and fomenting fissiparous tendencies. If any State will be engaged
in exciting emotion against Hindi or any other language, such provo-
cation has to be nipped in the bud because these are anti-national and
anti-democratic tendencies.””*
Globalisaticn has also contributed to the unification-division dis-
course pertaining to language since language is a prominent institu-
tion of market, whether for goods, services or intellectual products.
Yogendra Singh points out:
“It imparts its own pressures on the linguistic behaviour of people
from the local, regional, national to the international level of function-
ing. This process generated a dual contradictory trend in the structure
and usage of language: on the one hand, it accelerates the process of
‘symbolic domination’ of a particular set of languages, characterised
as official or legitimate, at the international level, and on the other, it
also enkindles sharp consciousness of the local, regional or ethnic
identities.’”?
The symbolic domination of a language in the context of globalisation
is product of linguistic market's hesitant and calculated acceptance of
2 Suniti Kumar Chatterji, supra, n. 17 at p. 66.
27 K.M. Munshi, supra, n. 23 at p. 10.
SC 1559.
28 RR. Dalavai v. State of T.N., (1976) 3 SCC 748: AIR 1976
e
BR i e
There are
the language of wider communication for economic process.
by ral-
also efforts to counterbalance this market-governed impulse
its
lying behind linguistic heritage of the community reinforced by
self-consciousness, common culture and collective memories towards
adaptive measures. Hence, celebration of identities tends to check lan-
guage loss.
Because of interplay of these factors, legal measures should address
to the factors of society’s unity and division underlying languages
instead of looking to them only as expressional tools. Discussion in
this chapter proceeds with elaboration of the theoretical framework
of Equal Language Rights, and tries to examine the constitutional and
legal policies and practices from this perspective, since the equality
model alone is aptly suitable for linguistic justice.
6.3 Equal language rights of all for linguistic justice

6.3.1 General
As in other spheres, in the field of language rights also, equality plays
both remedial and transformative role in order to promote the cause of
linguistic justice in a multilingual society. Language right means right
to use one’s language in public life for learning, for interaction with
others, and for dealing with state in its variety of processes. Thus, use
of language in school, marxet and governmental acts comes within its
ambit. Linguistic justice is a concept, which aims at non-discrimina-
tion on ground of language, and ensures equal package of language
rights for participation in public life and public services. This concept
may probably sensitise a range of educational, occupational legislative,
administrative, adjudicative, and expressive activities. In fact, right to
use one’s language in these spheres has vast dimensions of human
rights. As an instrument of justice and a vital matrix of human rights,
right to equality has a great rewarding role to play in multilingual fed-
eral democracies.* In contrast, inequality brings reversal of this posi-
tion. “On the one side, in fact, inequality harms by pampering; on the
other by vulgarising and depressing. A system founded on it is against
nature, and, in the long run, breaks down.”3!
Language projects immutable personal characteristics intimately
derived from the speech community’s structure that can neither be
* Research Report submitted to the Shastri Indo-Canadian Institute entitled, “A

Comparative Study of the Language Provisions in the Constitutions of Canada
and India from the perspectives of equal liberty of all” (1993); abbreviated version
published in Bulletin of Canadian Centre for Linguistic Rights, Vol. 2(1) (University of
Ottawa 1994) at pp. 9-14.
* Mathew Arnold, cited in R.H. Tawney, Equality.
Equal language rights of all for linguistic justice
rt 275
glorified nor effaced.» It constitutes the most vital element in the con-
stitution of identity of any community.-Hence, policies of hegemony,
subjugation, imperialism or effacement at the language front bring
severely uncomfortable position. When regional chauvinism injects
through state action, linguistic preferences, collective intolerances and
arbitrary treatments, equality is the most natural vehicle and consti-
tutional tool to dismantle such degradations. Equality often moulds
majority-minority relation and assists through affirmative action, the
claim for minority language educational rights. Thus, it refines and
animates communitarian language rights. When a specific language
right is not constitutionally guaranteed, equality by its capacity of
entering into each tissue of the legal order sensitises and surrogates
such right33
Pointing out the relevance of intercivilisational approach to human
rights underlying language rights, Yogesh Tyagi observes:
“It is difficult to promote respect for the dignity of a group of persons
having a specific legal identity without promoting the use of their lan-
guage. In this way, language rights are human rights. Also, the develop-
ment of human beings and their collectivities is not possible without
promoting their ways and means of expression and communication. In
other words, the exercise of the right to development is linked to the
enjoyment of language rights.’>4
Linguistic human rights approach has emerged by fusion of language
rights and human rights. Tove considers that language rights get a
poorer treatment in human right instruments than other important
human attributes and that the role of language in the exercise of power
and control is growing in several ways by maintaining, legitimating,
effectuating and reproducing an unequal division of both structural
power and material resources between two groups’ “The haves and
have-nots are partly constructed with the help of language, so that the
ways we label, talk about and attribute characteristics to individuals
and groups and thus construct them, legitimates this unequal division
of power and resources.”°
22 See, for this approach, P.W. Hogg, Constitutional Law of Canada (3rd Edn., Carswell,
Toronto 1992) at p. 1220.
% For example V.N. Sunanda Reddy v. State of A.P., 1995 Supp (2) SCC 235 where
discrimination on the basis of language in the matter of access to public employment
was dealt under right to equality under Art. 16(1). =a
XXXI
4 Yogesh Tyagi, “Some Legal Aspects of Minority Languages in India” Vol.
(5&6) (May-June 2003) Social Scientist.
future for
3 Tove Skutnab-Kangas, “Human Rights and Language Wrongs-A
, Language Sciences
diversity?” in Phil Benson, Peter Grundy and Tove Skutnab-Kangas
at pp. 1 and 9.
% Ibid, at p. 9.
276 _Language and
ee Law
Ne
ee
6.3.2 The concept
The concept of Equal Language Rights is a multiform concept. Its facet
of formal equality redresses discriminations and oppression. Here, the
concepts of rule of law, reasonable classification, reasonableness and
principles of natural justice support the claim, depending upon the
type of grievance.” Language-based discriminations in job opportu-
nities, school facilities, court proceedings, media opportunities and in
the status of official language can accordingly be redressed by applica-
tion of this concept.
The facet of substantive or genuine equality goes beyond this
function. It aims at transformation of unequal situation by infusing
need-based affirmative actions into the handicapped community
for enabling them to overcome the handicap. As F. Capotorti points
out, special measures like creation of minority groups of schools are
essential for s irvival of linguistic characteristics and are imperative of
equality2® Special measures may include a temporary concession for
non-scheduled linguistic community from passing a test in scheduled
language in civil service recruitment, as prevalent in India2? There
is no incompatibility between the formal and substantive aspects of
equality as the competition between them is resolvable in the rubric of
reasonableness and linguistic justice. Special treatment of endangered
or potentially endangered language to avoid language loss or disap-
pearance is one facet of equaiity. According to UNESCO, relatively few
languages are in danger of disappearing in the Indian sub continent
and the main reason for their active maintenance is the presence of
very widespread egalitarian bilingualism and multilingualism.” The
languages in danger of disappearing are tribal and other relatively
small languages.*
The concept of Equal Language Rights reinforces the constitutional
values of federalism, democracy and Fundamental Rights as they
aim at equality of opportunity in regional government, deliberation
and self-expression. It recognises the claim for linguistic territorial-
ity in so far as the latter is a modest means of satisfying ethno-centric
” See, for analysis of equal liberty of all as the foundational principle, see, P. Ishwara
Bhat, Fundamental Rights (Eastern Law House, Kolkata 2004) Ch. 2.
* EF. Capotorti, Study on the Rights ofPersons belonging to Ethnic, Religious and Linguistic
Minorities (New York 1979) at p. 40.
* Javed Niaz Beg v. Union of India, 1980 Supp SCC 155: 1980 SCC (L&S) 473.
** Stephen A. Wurn (Ed.), Atlas ofthe World’s Languages in Danger ofDisappearing (Paris
1996) at pp. 1-2. The criterion for identification of endangered language is whether the
language is not learned by at least 30 per cent of the children of that community. The
other problematic categories are moribund language, probably extinct language.
*" Yogesh Tyagi, “Some Legal Aspects of Minority Language in India”, Vol. XXXI
(May-June, 2003) Social Scientist, 5 at p. 8.
Equal language rights of all for linguistic justice 277
urges of regional language group to have a common forum and their
claim for language development. Linguistic territoriality renders a fair
deal to the linguistic group, which is a minority at the national lev-
el.# However, difficulties of linguistic territoriality theory arise out of
non-synchronisation of language boundary with territorial boundary
and policies of hegemony upon the minorities at the borderland. These
difficulties are to be remedied by the equality doctrine itself. What
equality demands is autonomy of regional language community in
its homeland. It tolerates neither separatism nor oppression of minor-
ity languages. The concept of Equal Language Rights responds to the
well-founded fear expressed in the alternative theoretical model viz.
theory of survivalism.* The fear expressed therein about language
loss or assimilation is tackled by the Equality concept by going to the
roots of political oppression. Another theoretic mode! viz. the secu-
rity model of language rights which advances the claim for positive
security through special measures is also refined and adopted by the
equality concept by suitably moulding the tools of affirmative action.“
Indian constitutional framework has comprehensive language right
scheme that partly conforms to Equality approach, and partly not, as
will be discussed in this chapter.
6.3.3. The global trend

Right to equality has attained a major place in the International
Conventions and Declarations of rights vis-a-vis multilingual peo-
ple. Two concurrent notions of linguistic protection through human
rights include: negative individual protection against discrimination
on the basis of language and the positive protection of group language
rights in the minority context.* Under the UN Charter, the member
nations are proscribed from making any language-based discrimina-
tions and are enjoined to promote universal respect for, and observ-
ance of, human rights and fundamental freedoms for all. Article 2 of
the Universal Declaration of Human Rights, 1948 declares, “Every one
Press, Toronto
#2 J.A. Laponce, Languages and their Territories (University of Toronto
Rinehar t & Winston Co.,
1987) at p. 14; Ivo D. Duchacek, Comparative Federalism (Holt,
New York 1970) at pp. 41-42.
at p. 161 cited
4 P. Berger, Facing upto Modernity (Penguin, Harmondworth 1979)
(1987) 25 Osgood e Hall Law
by Leslie Green, “Are Language Rights Fundamental?”
Journal 639. or
44 Denise G. Reume, “The Constitutional protection of language: Survival
and the State: The Law and Politics of
Security?” in David Schneidermun (Ed.), Language
j ville 1991) at p. 37.
ational Human
aan uacec ronin ls) ae Protection of Language Rights in Intern
Lingui stic Rights ” (1992) 32 Virginia
Rights Law: A Proposed Draft Declaration of
Journal of International Law 515 at p. 519:
278 PDE 3_Langua hg and
ih a ge Ns Law
ih A Se RTT MeCN TM
is entitled to all the rights and freedoms set forth in this declaration,
without distinction of any kind, such as race, colour, sex, language...”
“Article 26 contemplates full development of the human personality
through free universal education and parental right to choose the kind
of education that shall be given to their children. The International
Covenant on Economic, Social and Cultural Rights, 1966 also regards
language as one of the prohibited grounds of discriminations [Article
2(2)]. Article 27 of the International Covenant on Civil and Political
Rights, 1966 declares, “In those states in which ethnic, religious or lin-
guistic minorities exist, persons belonging to such minorities shall not
be denied the right, in community with other members of their group,
to enjoy their own culture, to profess and practise their own religion,
or to use their own language.”
The UN Declaration on the Rights of Persons Belonging to National
or Ethnic, Religious and Linguistic Minorities adopted by the General
Assembly in 1992 has not only made the policy of non discrimination a
core principle, but also employed all means of imposing positive duty
upon the member nations to take appropriate measures to overcome
the difficulties of minorities. According to it, linguistic minorities have
right to use their own language, in private and public, freely and with-
out interference or any form of discrimination. According to Article 4.1,
states shall take measures to ensure that persons belonging to minori-
ties may exercise fully and effectively all their human rights and fun-
damental freedoms with cut any discrimination and in full equality
before the law. They should create favourable conditions in which
minorities may express their characteristics and develop their culture
and language. According to Article 4.3, “States should take appropriate
measures so that, wherever possible, persons belonging to minorities
may have adequate opportunities to learn their mother tongue.” This
requires a systematic affirmative action by the State. Article 4.5 declares,
“States should consider appropriate measures so that persons belong-
ing to minorities may participate in fully in the economic progress
and development of their country.” This rules out any fixation of lan-
guage criterion in the distribution of lands, largesse, economic means
and public employment. On the whole, a multipronged application of
egalitarian principle lies at the core of the 1992 Declaration.
The Draft Universal Declaration of Linguistic Rights handed over
to UNESCO in 1996 regards linguistic rights as inalienable personal
rights. It states, “All language communities have equal rights; all
necessary steps must be taken in order to implement the principle of
equality and render it real and effective.” (Articles 10.1 and 103) The
Declaration is intended to provide reasonable protection and promo-
Formation of linguistic states 279
ee t—‘“OCOC”
tion of positive linguistic rights as well as the negative guarantee

against discrimination.
The preamble to European Charter for regional or minority
Languages considers that right to use a regional or minority language
is an inalienable right. It stresses on interculturalism and multicul-
turalism. It regards that encouragement and protection of regional or
minority language is an important contribution to democracy and cul-
tural diversity. The charter emphasises on minority language educa-
tion at all appropriate stages.
Some of the multilingual nations like US, Canada, and other coun-
tries adopted the constitutional policies reflecting the Equality doc-
trine for accommodating the interests of multitude language groups
and suiting to the requirements of democracy and human right norms.
In the US Constitution, in the absence of any specific constitutional
policy or norm relating to language, due process clause and equal pro-
tection clauses have been used to deal with arbitrary linguistic policies
of the state.4
In Canada, the Constitution Act, 1982 has concretised the long
aspired goal that “English and French are the official languages of
Canada and have equality of status and equal rights and privileges
as to their use in all institutions of the Parliament and government
of Canada.”® Specific provisions are made in the Charter for use of
either English or French language in courts and administrative pro-
ceedings. Publications of statutes, records and journals, Parliaments
are required to be bilingual. Citizens of Canada having English or
French as minority language in any province have the right to have
their children receive primary and secondary school instruction in
that language in that province.
6.4 Formation of linguistic states

Language provides emotive and intimate badge of unity amidst com-
mon linguistic community. But in linguistically plural societies, the
extremely heightened spirit of emotive unity with a lack of concern
for tolerance, harmony and coexistence, sometimes results in perse-
cution of the linguistic minority and manipulation of the linguistic
power equation to favour the dominant. Similar situation is also expe-
4 Joseph P. Gromacki, supra, n. 45 at p. 573.

US 563 (1974); Meyer v. Nebraska, nike
262 US 390 (1923);Maat
47 Lau v. Nichols, 414
: me At
workplac e, research activity and governm ent job is no
“English only rule in
449
ates as held in Garcia v. Gloor, 618 F 2d 264 (5th Cir. 1980), cert. denied,
Yniguez v. Arizonans
US 1113 (1981) cert. denied; Shich v. Lyng, 710 F. Supp. 1024 (1989).
.
or Official English, 42 F 3d 1217.
m (1967) at pp. 52-55.
: = sae einatien for Bilingualism and Biculturalis
e and Law
280
5c ane neem Ere DIY PENTA A Languag
rienced when the political power holder, who usurped power either
by colonisation or subjugation, imposes his language upon the masses.
These evils are faced by either violent protests or silent submissions
by the oppressed. However, along with the establishment of values
of democracy and self-determination, linguistic inequality became
anathema and linguistic equality became an imperative. In multilin-
gual society, reception of this value in the constitutive law took several
forms: recognition of semi-autonomous territorial base or homeland
for each homogenous linguistic community, equality of opportunity
and status in using the languages in the law-making, implementing
and adjudicating process, and equality of language rights in public
employment, education and media.
The historical contexts and the directions in which the language
rights were developed in India have recorded tension-some conse-
quences arising from non-compliance with the policy of equal liberty
of all, and also the comfortable consequence arising from a compli-
ance with it.
During the British period, statutes were assented to in English only,
and legislative deliberations were conducted in English.*? Higher lev-
els of judiciary and administration made use of English only in their
functioning. However, regional language was allowed to be used in
lower courts and the lower rungs of administration=° Although there
was statutory declaration of the policy of equality of access to public
employment, qualification in English language was made a thresh-
old requirement since service examinations were conducted only in
English>* Commenting on the accumulated injustice in the sphere of
language, Gandhiji stated:
“Our masters chose the wrong way for us and have made the wrong
appear as right...We and our children must build on our own heritage.
If we borrow another, we impoverish our own. We can never grow on
foreign victuals.’>?
As a contrast to the unsatisfactory linguistic relations between the
ruler and the ruled, the freedom fighters relied more and more on the
language of the masses to make the nationalist movement, a popular
one. Language as a badge of social solidarity and emotional unity was
successfully set into service to combat division of Bengal on religious
* S. 39 of the Government of India Act, 1935.

* S. 227 of the Government of India Act, 1935; S. 11 of the High Court Act, 1861.
*! M. Rama Jois, Constitutional and Legal History ofIndia (N.M. Tripathi, Bombay 1984)
at pp. 181-87; see also, P. Ishwara Bhat, “Historical Evolution of Language Policy: from
Linguistic Inequality to Equality of Status of Languages” (1995) 57 Mysore University
Arts Journal 7 at p. 14.
” Krishna Kripalani (Ed.), Life and Thoughts of Mahatma Gandhi, at p. 54.
Forma
i tion
e of lingui stic e
states u
e ee ee —‘(e tstst—e it 281
lines? Once people were approached and brought into national scene
in their regional language, “There was no getting away from linguistic
states and regional languages becoming their official languages. At
the same time, a common language was necessary to unite the mul-
tilingual masses and give them a sense of national integrity.”5+ Five
decades of this development on these two interconnected issues wit-
nessed both rational interactions and emotional outbursts and resulted
in half-hearted compromise formula, keeping some issues resolved
and leaving others unsolved.
On the first issue i.e. linguistic organisation of states, the majority
of freedom fighters, Special Committees and Enquiry Commissions
expressed the view that common speech is a strong and natural basis
for provincial individuality enabling general progress of the province
with a fair deal to the people of the region.5 In 1917, the Congress
opinion was not clearly in favour of linguistic distribution of prov-
inces. Montague Chelmsford Report stated, “It is also a strong argu-
ment in favour of linguistic or racial units of government that, by mak-
ing it possible to conduct the business of legislation in the vernacular,
they would contribute to draw into the arena of public affairs, men
who were not acquainted with English.” In 1920 at Nagpur session,
Congress accepted the linguistic distribution of provinces as a clear
political objective»* In 1927, this was reaffirmed with greater support.
The Nehru Committee reported in 1928, “If a province has to educate
itself and do its daily work through the medium of its own language, it
must necessarily be a linguistic area...Language as a rule corresponds
with special variety of culture, of traditions and literature. In a linguis-
tic area all these factors help in the general progress of the provinces.”
It recommended for territorial reorganisation in which the “main con-
siderations must necessarily be the wishes of the people and the lin-
guistic unity of the area concerned.”5” Simon Commission observed, “If
those who speak the same language form a compact and self-contained
area, so situated and endowed as to be able to support its existence as
53 R.C. Majumdar (Ed.), The History and Culture of the Indian People: The Struggle for
Freedom (Bharatiya Vidyabhavan, Bombay 1969) at p. 32.
4 V.K.RV. Rao, National Integration: Some Unresolved Issues (Bharatiya Vidyabhavan,
5 J. Das Gupta, Language Conflict and National Development (1970) at pp. 31-68.
% B, Pattabhi Sitaramayya, History of Indian National Congress, Vol. I at p. 147. K.M.
Munshi writes about its adverse consequence, “Indian linguism soon became strident.
The whole of South India was thrown into a vortex of controversy, bitterness and
to
uncertainty. All other national issues receded into the background. Even in elections
Parliament, slogans were raised appealing to the linguistic sentiment. Every corporate
an,
activity came to be influenced by it.” Pilgrimage to Freedom (Bharatiya Vidyabhav
1967) at p. 227.
geet i a Nehru Committee, All Parties Conference (1928) at p. 62.
282 e ne
Language and Law
ls
ee ee re ee
a separate province, there is no doubt that use of common speech is a
strong and natural basis for provincial individuality.”
After the dawn of independence, the idea of linguistic states was
about to be accepted except for the Dar Committee Report of 1948,
which expressed the fears of national disunity owing to narrow lin-
guistic loyalty, rivalry and regional chauvinism. It stated, “The forma-
tion of provinces on exclusively or even mainly linguistic considera-
tions is not in the larger interest of the Indian Nation and should not
be taken in hand.” B.R. Ambedkar expressed his apprehension that
linguistic provinces would result in creating as many nations as there
were groups, with pride in their race, language and literature; that it
would be fatal to the maintenance of the necessary administrative rela-
tions between the Centre and the provinces; that a collection of differ-
ent nationalities engaged in rivalries and wars against each other was
death knell to India’s unity; and that the Supreme Court would have
to close down for want of ability to cope up with multiple languages of
transactions in High Courts and the administration? Gandhiji justi-
fied the governmental reluctance to enforce linguistic re-distribution
in view of depressing atmosphere arising from ascendance of centrif-
ugal and balkanising forces. While he was convinced about linguis-
tic redistribution as conducive for the cultural advancement of the
country, he opposed it if it were to militate against organic unity of
India. He offered typical so’ution for change management, “Even zeal-
ous reformers would postpone controversial issues to a more hopeful
time when, in the interests of the country, the virtue of ‘give and take’
would be freely recognised and all sectoral interests would be subor-
dinate to the one interest of the good of India, which will include the
good of all.”
The Government feared that ethnic and linguistic divisions might
engender fissiparous tendency and might threaten the integrity of
India at the crucial and nascent stage of national development. But
some members of the Constituent Assembly considered recognition of
Regional Languages as inevitable step towards linguistic organisation
of states. The JVP Committee of the Indian National Congress took a
decision to leave the matter of state reorganisation to the decision of
** Report of the Indian Statutory Commission, Vol. II, para 38.
* B.R. Ambedkar, Need for Checks and Balances: Articles on Linguistic States (1947-53);
Thoughts on the Linguistic States (1955); also extract from his views in K.M. Munshi,
supra, n. 23 at p. 228; Asha Sarangi, “Ambedkar and the Linguistic States: A Case for
Maharashtra Economic and Political Weekly,” 14-1-2006 at p. 151; Ambedkar said,
“One language can unite people. Two languages are sure to divide people. This is an
inexorable law.” see V.K.R.V. Rao, supra, n. 54 at p. 8.
® Gandhiji, November 1947 and cited in K.M. Munshi, Pilgrimage to Freedom
(Bharatiya Vidyabhavan, Bombay 1967) at pp. 229-30.
Parliament.” Accordingly, Article 3 of the Constitution provided for
this flexibility. It provides that Parliament may form a new state by
separation of territory from any State or by uniting two or more States,
parts of States or by uniting any territory to a part of any State; may
increase or decrease the area of any State; or may alter the boundaries
or name of any State. No Bill for these purposes may be introduced in
Parliament except on the recommendation of the President after he has
“ascertained” the views of the State Legislature (s) concerned. Thus the
issue of linguistic states was tried to be resolved within the framework
of federal democracy.
Disappointment of leaders who stood behind linguistic organisation
of states led to extensive agitation, including hunger strike and mar-
tyrdom, in the South. The Telugu Area Committee set up the slogan
of “Andhra for Telugus”. Potti Sriramulu fasted to death in support of
Andhra state. Marathi speaking people of Bombay, Madhya Pradesh
and Hyderabad demanded a separate Maharashtra state. Gujaratis
claimed commercial areas of old Bombay Province, Saurashtra and
Kutch under a single state of Gujarat where Gujarati language is spo-
ken. The people in Kannada speaking areas spread over Provinces of
Madras and Bombay, Princely State of Mysore, Coorg and Hyderabad
demanded for separate state. Formation of Kerala by integrating the
Malayalam speaking territory scattered over Province of Madras and
Travancore-Cochin was also sought.
The leaders in the Union Government yielded to public opinion in
the matter of linguistic states, although with hesitation and fears. In
1955, the State Reorganisation Commission (SRC) was constituted with
a directive that the essential considerations are the preservation and
strengthening of the unity and security of India; linguistic and cul-
tural homogeneity; economic and administrative factors; and success-
ful working of national plan. The case for linguistic states included the
following factors, according to SRC:
(i) Each federal unit should possess minimum degree of homo-
geneity to ensure emotional response essential for working
the democratic institution. Linguistic homogeneity provides
rational basis for reconstructing the states.
(ii) The political and administrative work of the state can be bet-
ter conducted when the administrators and people are able
to interact in the same language. Broad-based people's sup-
port can be secured when governmental processes including
Vallabhbhai Patel and Pattabhi

61 The Committee consisted of Jawaharlal Nehru,
Sitaramayya, which gave a report in December 1948.
Vidyabhavan, Bombay 1967) at
@ Kaa oanchil Pilgrimage to Freedom (Bharatiya
p. 231.
RS
eee
legislative functioning are conducted in people’s language.

Conflict and discord, inherent elements of pluralist society,
can be satisfactorily dealt by abandoning mutual suspicion
and favouritism, and by producing an atmosphere of good-
will and understanding arising from common language
rather than by forceful suppression.
(iii) Educational activity can be stimulated only by giving regional
languages their due place. Welfare activity and developmen-
tal plans are unequally and unfairly distributed in multi-
lingual states, especially when a dominant language group
holds the reins of political power. Since already there is
geographical concentration of linguistic communities giv-
ing rise to unilingual position, the possibility of framing lin-
guistically composite state is unreal.
(0) Since national movement for independence had harnessed
the forces of regionalism with promise of integration of lin-
guistic areas, historically it is appropriate to recognise that
internal integration is compatible with national unity and to
respect the people’s expectations.
The case against Linguistic States included the following points:
(1) Language as acriterion of territorial organisation encourages
excluvism, tends to blow national unity by motivating an
image of superiority of the dominant language group, and
serves as a vehicle of regional particularism and revivalism.
(2) Dominant language groups exhibit intolerant, aggressive and
expansionist approaches as noticeable in their conduct of
claiming neighbouring territories on the basis of linguistic
statistics. The homeland concept would deepen the majority
and minority consciousness.
(3) In the context of uneven development of Indian languages,
education is likely to lose national character and unity of
purpose. Inclusion of literature exalting regional idea and
exaggerating past achievements of dominant language
group in the school text books will have inevitable tendency
of weakening the sense of national unity.
(4) Planning on a national scale also cuts across linguistic affili-
ations. The requirements of river valley projects and opti-
mum utilisation of natural resources do not proceed on lin-
guistic lines. Local sentiments may resent the utilisation of
the resources of one area for the benefit of another.
The SRC looked to the experiences of European countries and arrived
at a conclusion that language is one of the fundamental elements of
social life influencing the national psychology and that approach of
tolerance towards linguistic minority is one of the major state poli-
cies. Only USSR and Yugoslavia had tried to organise states on lin-
guistic basis. It also noticed deep rooted linguistic and group loyalties
and the need for controlling the diminution of sense of national unity.
It emphasised the need for internal cohesiveness and homogeneity
within the federal unit to ensure emotional and rational responses,
which are necessary for the working of democratic institutions. It
declined to reorganise the states on the basis of single test of language
or culture. It took a holistic approach of considering the factors such
as homogeneity of language and culture, administrative convenience
and suitability for national planning and economic development.
The demand of Sikhs for separate state for Punjabi speakers was
not conceded by the Committee for the reason that the Punjabi and
Hindi speakers did not differ much in their language or culture, and
that the demand was more on ground of religion. But merger of Pepsu
and West Punjab was accepted. It was the subsequent movement
for separate Punjab state under the leadership of Master Tara Singh
that ultimately resulted in division of the territory into Punjab and
Haryana took place in 1960s. The SRC report was the basis for the
State Reorganisation Act, 1956.
Formation of linguistic states can be regarded as the triumph of the
organised public opinion and concerted efforts of the masses. It was
the fulfilment of their long cherished expectations to have a homeland.
From the angle of interaction between law and social transformation
this has a larger implication because political decision making and
administration by a cohesive linguistic community was hoped to pay
attention to long-term development of the region according to their
wishes. Self-rule by the larger linguistic communities is a marker of
democracy. Cultural regeneration by involving all the people speak-
ing the same language was expected. As viewed by Acharya Vinoba
Bhave, “Organisation of states on linguistic basis is fundamentally
correct. From a democratic perspective it is necessary that the admin-
istration should be conducted in the farmer's language. It is very sad
that there were riots at some places on the issue of linguistic organisa-
tion of states.”“* The change management in linguistic redistribution
ideologies
involved prolonged process of accommodating conflicting
differences
of primary loyalty to the nation by submerging the cultural
“Out of these
and projecting composite nationalism. Paul Brass views,
leaders,
conflicts which developed between the Central Government
ce (2nd Edn., Cambridge University

6 Paul Brass, The Politics of India Since Independen
Press, London 1995) at pp. 195-97. (National Book Trust,
6 Quoted in Nirm ala Deshpande, Vinoba (Tr.) S.A. Virkar
cn ot ae
with their ideology of a strong state and a homogeneous or composite
nationalism to support it, and the successive demands of leaders of
language movements for reorganisation of internal boundaries of the
provinces, a set of rules and an overall state strategy emerged which
were pluralist in practice than the ideology, which appeared as inte-
grationist and assimilationist.”® Avoidance of any catastrophe and
smooth integration of princely states were markers of linguistic states’
formation.
Five decades of experience with linguistic states has witnessed not
only positive contribution in this regard, but has also by and large
disproved the fear of fissiparous tendencies towards national disinte-
gration solely based on language. Political rights of democratic govern-
ance to linguistically defined communities have sustained diversity
and reinforced multicultural framework. Accommodation of sub-
national loyalty along with maintaining strong ties of national unity
is an important positive development. Elimination of sites of ethnic
conflicts is its by product.
On the negative side, some unfortunate deviances should also be
noted. Language-based discriminations in the matter of access to pub-
lic employment and land; arbitrary policy about language learning
and medium of instructions in educational institutions and discrimi-
nations in use of languages in public forum (either in the matter of
screening of films or display of signboards) have been experienced in
some states. Exclusive prominence given to regional language in each
state in spheres of education and administration, many a times even
by abandoning use of English, has raised the fears of obstructing peo-
ple’s mobility from state to state for various reasons including seeking
of livelihood. It is viewed by C. Rajagopalachari, “The linguistic iso-
lationism that has risen like an evil spirit from the States reorganisa-
tion cauldron will surely result in the break up of India into islands,
with no means of coordination, cooperation or even communication,
if English be thrust out of the Secretariats, the universities and the
courts.”*” It is a fact that neither English was dethroned, nor such unto-
ward development came to stay as a long-standing feature.
* Paul Brass, The Politics ofIndia Since Independence, (2nd Edn., Cambridge University
Press, London 1995) at p. 171.
°° Gurpreet Mahajan, “Indian Exceptionalism or Indian Model: Negotiating
Cultural Diversity and Minority Rights in a Democratic Nation-State” in Will
Kymlicka and Baogang Hi (Eds.), Multiculturalism in Asia (Oxford University Press,
New York 2005) at pp. 288-301.
*” C. Rajagopalachari, “A Threat to National Unity” in Swarajya, 6-9-1958, extracted
by B.V.R. Rao, The Constitution and Language Politics in India (B.R. Publishing Co., Delhi
2003) at p. 64.
_ An aberration from the approach of linguistic tolerance occurred
in November 2005 in Karnataka. After reorganisation of states in
1956 Belgaum district had been included in Karnataka on the basis
of Mahajan Commission Report, which delineated the boundaries
according to population of Kannada speaking people. While in urban
places Marathi speaking people are in substantive numbers, major-
ity of the rural population speak Kannada. However, people practice
bilingualism. There has been a demand from Marathi speaking com-
munity, projected through a political party (Maharashtra Ekikarana
Samiti) that Belgaum shall be separated from Karnataka and be united
to Maharashtra. The boundary dispute is politically agitated and the
matter is referred to the Union Government and to the Supreme Court.
The Belgaum Municipality passed a resolution in 2005 to align the dis-
trict into Maharashtra, although it had no statutory competence to do
so. Some Kannada activists in Bangalore manhandled and literally tar-
nished the Mayor of Belgaum and an MLA in retaliation. Violent pro-
tests and damage of public property took place in the border districts.
The Government of Karnataka superseded the municipality. There
was repetition of similar incident in July 2007 when a leader agitating
for unification of Konkani speaking regions of Karwar into Goa was
manhandled. These incidents are unfortunate spillover of linguistic
reorganisation of states, which could not be perfect because of the fact
that territorial boundary could hardly be drawn to fully commensu-
rate with linguistic boundary.
Five decades of coexistence of bilingual community had largely wit-
nessed harmony although with some politically motivated aberrations.
It is submitted, language was not the only yardstick for determination
of state boundaries. In addition to language, the factors of administra-
tive convenience and planned economic development were also con-
sidered in boundary delineation. It is submitted, sense of emotional
unity and national integrity should prevail over narrow feelings of
territorial possessiveness. Delinking of the language issue from land
by abandoning politicisation and by developing linguistic harmony is
the essential step to be taken. In fact, the dissatisfaction amidst people
of some area for having included them in one state rather than another
would be only a temporary phenomenon unless an equitable develop-
ment of that area and protection of the linguistic interests is not sin-
cerely attempted. The experience and approaches of administration in
other border districts should be kept in mind in addition tc educating
remem-
and preparing towards linguistic harmony. It is appropriate to
ber the apprehension expressed by the Sarkaria Commission:
the unity
“Politicisation of language has often tended to threaten
e results of
and integrity of the country. One of the most unfortunat
_Lang uage and Law
288 me n
s ROHR NCATENeo s a
en
come to be
the re-organisation of States has been that language has
tion
regarded, informally (but never formally) as the basis for the forma
of a State.”
The potentiality of the Constitution to deal with arbitrary state policy
thrust by the majority upon linguistic minority has come to the open
surface in the following observation in D.A.V. College case. The Court
said, “Whether one may like it or not, linguistic states in this country
have come to stay. The purpose and object of these linguistic states
is to provide with greater facility the development of the people of
that area educationally, socially and culturally, in the language of that
region but while the State or the University has every right to provide
for the education of the majority in the regional medium, it is sub-
ject to the restrictions contained in Articles 25 to 30.9 Article 14 of
the Constitution is also employed to nullify reservation of posts for
linguistic communities?’ Gurpreet Mahajan observes, “While these
issues persist and they need still to be addressed in many regions
effectively, there is little doubt that the linguistic reorganisation of
states, by converting some linguistic minorities within the national
context into regional majorities, has given political recognition to pop-
ular sentiment.”7’
6.5 Language policy under the Constitution: background and

content
6.5.1 Emergence of the compromise formula

Formulation of language policy inany society depends upon the number
of competing languages, the extent of development of languages, the
magnitude of their use, and the purpose of planning. More impor-
tantly, in a multilingual country liberated from foreign rule histori-
cal factors enter into the arena of policy determination. The questions
whether a language is competent enough to serve expressive needs of
the modern technological society, and if not, how best to equip itself
better for communicative purpose; and if yes, how to carry the conser-
vation function are some of the factors to be addressed to answer the
developmental issues. The issue of continuing the Official Language
left over by the colonial masters and the choice of alternative/s in order
* Para 20.1.26 of the Report of Commission on Centre-State Relations (1988) at

p. 528.
© D.A.V. College v. State of Punjab, (1971) 2 SCC 261: AIR 1971 SC 1731.
V.N. Sunanda Reddy v. State of A.P., 1995 Supp (2) SCC 235: AIR 1995 SC 914.
Gurpreet Mahajan, supra, n. 66, at p. 302.
Udaya Narayana Singh, supra, n. 14 at p. 728.
Language policy under the Constitution: background and content 289
w n ce
to have indigenous identity and distinct national image becomes intri-
cate question amidst complex public opinion and divided views.
In the context of newly liberated traditional society aspiring for
political, economic and social transformation and for changing of its
cultural structure, broadly three alternative paths of modernisation
depending upon type of developing nation are noticeable, accord-
ing to Fishman/?} In Type A nations, where no indigenous language
has built Great Tradition or has possessed rich background of classi-
cal origin adequate to bring socio-cultural unity or modernity in the
field of law, administration, education etc, (nations like Cameroon,
Ghana, Gambia, Philippines, Indonesia, Tanzania), socio-cultural
integration is attempted through a foreign language as a Language
of Wider Communication (LWC). In Type B nations where presence of
one national language of classical origin has sustained Great Tradition,
(nations like Israel, Thailand, Somalia, Ethiopia) modernisation of that
language is attempted as LWC. Type C nations where a number of lan-
guages are spoken and no linguistic community has majority strength
at the national level (nations like India, Pakistan, Sri Lanka, Malaysia),
the selection of language at regional level is not problematic whereas
selection of a language as their national language is problematic. To
resolve this riddle of conflicts among native languages, these systems
have opted for selection of language of erstwhile colonial rule (in India,
English) as LWC at the national level for official or working use with-
out naming it as national language. Modernisation of each regional
language is also attempted. The language spoken by single largest
community (in India, Hindi) is also chosen for special development to
make it optional official language. Thus, language planning in develop-
ing countries has addressed to the issues of socio-cultural integration,
existing tradition and working convenience in the relations of diverse
speech communities. As Udaya Narayana Singh observes, “One of the
characteristics of these developing nations is that they use language of
the developed societies as a part of their modernisation process.””4
The choice of language formula in India at the context of making
of the Constitution was not simple and smooth. A substantive section
of members in the Constituent Assembly believed that national unity
could be brought with a common language and that emotional inte-
gration would emerge with an Indian language as national language”>
Gandhiji’s view that true swaraj meant giving of national status to
7 J.A. Fishman, “Sociolinguistic and the Language Problems of the Developing Countries”
the Developing
in Fishman, Ferguson and Jyotindra Dasgupta (Ed.), Language Problems of
a Singh, supra, n.
Nations (John Wiley, New York) at pp. 491-98; see also, Udaya Narayan
14 at pp. 729-30.
4 Ibid, at p. 729.
and others.
7° The B alagonists of this view included Purushotam Das Tandon
290 c a
Danas eae d
pmeomninnn aLang
n Messier 2S and Law
ns uage
cilinea
people
Hindi and of due place to provincial languages in the life of
had
as a means of communication, education and administration”
op-
inspired their thinking. Gandhiji had repeatedly argued for devel
ment of composite language of Hindustani drawing vocabulary sup-
port from Sanskrit, Urdu and different regional languages so that it
would be a rich and powerful instrument capable of expressing whole
body of human thoughts and feelings, and of securing mass involve-
ment and participation in national struggle, in enjoying fruits of its
achievement and in forging bonds of unity amidst various sections of
society” B.R. Ambedkar said, “One language can unite people. Two
languages are sure to divide people. This is an inexorable law. Culture
is conserved by language. Since Indians wish to unite and develop
a common culture, it is the bounden duty of all Indians to own up
Hindi as their official language. Any Indian who does not accept this
proposal as part and parcel of a linguistic state has no right to be an
Indian.”
After partition, Hindi had become minority language at the national
level and the much-aspired fusion of Hindi and Urdu did not take
place. Another group consisting of moderates” was constrained to
oppose imposition of a language in which they could not communi-
cate as an exclusive national language. It demanded recognition of
regional languages at the State level. It also pleaded for continuation
of English as an official larguage for communication with non-Hindi
states and in the higher judiciary. Jawaharlal Nehru took rational stand
by emphasising on balancing the power of majority with just rights
of minority by keeping faith in organic development of languages,
catholicity of outlook and mass support for the language. Thus, the
forum was divided into two nearly equal factions. The scene became
emotionally surcharged when the former group alleged the latter as
anti-national, and the latter retaliated by calling the former anti-dem-
ocratic and even threatened separatism. A Committee consisting of
members of the Drafting Committee which included N.G. Ayyangar,
T:T. Krishnamachari, A.K. Ayyar, K.M. Munshi, B.R. Ambedkar and
others was constituted to formulate appropriate policy about official
language at the Centre, states, courts and legislature, recognition of
“ M.K. Gandhi, Hind Swaraj (1909); Speech in Gujarat Sahitya Parishad (1917); Hindi
Sahitya Sammelan (1918); Young India, 14-7-1927.
”” See, V.K.RNV. Rao, supra, n. 54 at pp. 8-10.
® Ibid, at p. 8.
” The group included K. Santhanam, T.T. Krishnamachari, L.K. Maitra, N.G.
Ay yangar.
*° Jawaharlal Nehru, Unity of India (1937) at p. 242; S.K. Agarwala, “Jawaharlal
Nehru and the Language Problem” in Rajeev Dhavan and Thomas Paul, Nehru and the
Constitution (ILI, New Delhi 1992) at p. 134.
Language policy under the Constitution: background and content 291
e e ee RE
script and numerals system; about the protections to linguistic minor-
ities; and about language development. The Committee brought out
a formula based on political compromise, which accommodated the
claims of both the groups. This formula initiated by N.G. Ayyangar
was discussed at length for three days adding 180 pages of recorded
debate. It was accepted by the Constituent Assembly by division over
one vote. Although it has been described as half-hearted compromise,
the national leaders have hailed its efficacy in resolving 95 per cent of
the problem. Further, its enduring effect upon maintenance of national
harmony and unity over the last fifty-five years is enormous.
Part XVII of the Constitution reflects the Munshi-Ayyangar formula
and lays down the language policy in four chapters viz. Language of
the Union, Regional Languages, Language of the Courts and Special
Directives. The scheme is an integrated whole and is a product of his-
torical choice to conduct the business and politics of the country in
languages understood by the masses.
6.5.2 Language of the Union

According to Article 343(1) “The official language of the Union shall
be Hindi in Devanagari script.” However, for a period of 1950-1965
the English language shall continue to be used for all the official pur-
poses of the Union for which it was being used immediately before the
commencement of the Constitution [Article 343(2)]. During this tran-
sitional period, the President may by order authorise the use of Hindi
language in addition to the English language for any of the official
_purpose of the Union. After this transition period, Parliament may by
law provide for the use of the English language for such purposes as
may be specified in the law. Regarding numerals to be used for the
official purposes of the Union there is prescription of the international
form of Indian numerals. Introduction of Devanagari numerals by the
presidential order during the transition period of 15 years’ and by par-
liamentary law after the said period is also contemplated. It should
be noted that the scheme allayed the fear of imposition of Hindi for a
period of 15 years’.
When the deadline for Hindi’s exclusive domain for Union’s official
use was approaching in 1960s, there began in southern states, violent
anti-Hindi agitation clamouring for continuation of the English lan-
guage for official purpose through Parliament-enacted law. In view of
widely prevalent demand for continuation of the status quo, Parliament
enacted the Official Languages Act, 1963 providing for extension
of English, in addition to Hindi, for all official Central Government
26
purposes and for transaction of business in Parliament even after
292 er Law
Language andES
Ce Sg ir se
January 1965. Since the Act, conferred discretion to continue English by
using the word “may”, there was further demand to make the policy
to continue English categorical. This led to passing of an amendment
to the Act, in 1967. It provided for use of English language for the pur-
pose of communication between the Centre and a non-Hindi State. An
English translation of Hindi communication shall be supplied by Hindi
State in transaction with non-Hindi State. Both the Hindi and English
languages are to be used in resolutions, general orders, rules, notifica-
tions, administrative orders, communications, reports, contracts and
agreements etc issued by the Central Government. The above provi-
sions would remain in force until resolutions for the discontinuance of
the use of the English language have been passed by all the non-Hindi
State Legislatures and also by the two Houses of Parliament. Since it is
difficult to obtain this position, in practice, continuance of English and
non-imposition of Hindi have been assured. The statutory guarantee
of associate position for English has allayed the fears of language dom-
inance. This policy of bilingualism has helped in restoring social har-
mony and national unity in so far as language is concerned. Cautious
avoidance of the words “national language” is a pragmatic policy to
escape from emotional issues. The development has demonstrated
that treating language as a tool for wider communication rather than
glorifying it to the level of religion serves the social interest. It has also
shown the competence of !2gislative process to respond to the sen-
sitive social issue and provide a satisfactory remedy to reinforce the
constitutional values. The interaction between law and public opinion
is demonstrably clear.
For bringing a planned social change in language use at the
national level, formation and functioning of multi-member Language
Commission and Parliamentary Committee on Language are con-
templated under Article 344. At the expiration of five years’ from
the commencement of the Constitution the President shall appoint
a Commission consisting of a Chairman and other members repre-
senting the different languages specified in the Eighth Schedule. And
thereafter at the expiration of 10 years’ from such commencement,
the President may appoint such Commission. The Commission shall
recommend to the President about the progressive use of Hindi lan-
guage for the official purposes of the Union, restrictions on the use
of English, the language to be used at Courts, form of numerals used
for specified purposes of the Union and about other matters referred
by the President. In making these recommendations the Language
Commission shall have due regard to the cultural and scientific
advancement of India, and the just claims and the interests of per-
sons belonging to the non-Hindi speaking areas in regard to the public
Language policy under the Constitution: background and content
Sa RAE A ieee thal teh293
services [Articles 344(3)]. The concern of the Constitution makers to
protect the just claims of linguistic minority is clear in this provi-
sion. Apart from this, Parliamentary Committee on Official Language
consisting of 30 members (20 from the House of People and 10 from
Council of States) elected by the respective Houses shall be constituted
to examine the recommendations of the Commission.
6.5.3 Regional languages

The policy that language/s of masses shall be the official language/s of
the Government is adopted by the Constituent Assembly to be applica-
ble at the state level to meet the popular aspirations and socio-cultural
needs. The Legislature of a State may by law adopt any one or more of
the languages to be used for all or any of the official purposes of that
State. However, until the passing of such law, the English language
shall continue to be used for those official purposes within the State
for which it was being used immediately before the commencement of
the Constitution (Article 345). Vesting of discretion upon State legisla-
ture about language policy in the State conforms to democratic value
and enables suitable policy for deciding the medium for State-people
relation.
Regarding inter-governmental communications, States are not given
such a free hand in view of national interest to be served. According to
Article 346, “The language for the time being authorised for use in the
Union for official purposes shall be the official language for communi-
cation between one State and another state and between a State and the
Union.” However, when two or more States agree that the Hindi lan-
guage should be the official language for the communication between
such States, that language may be used for such communication.
The linguistic minorities in the States may seek President's interfer-
ence for getting official status to their language in case their popula-
tion is substantial. This goes a long way in protection of their interests
against majority’s policy of harassment or persecution. According to
Article 347, “On a demand being made in that behalf, the President
may, if he is satisfied that a substantial proportion of the population of
a State desire the use of any language spoken by them to be recognised
by that State, direct that such language shall also be officially recog-
nised throughout the State or any part thereof for such purposes as he
may specify.” It is submitted, in resolving the majority-minority tussle
in the matter of language at the regional level arising from limitations
It
of linguistic organisation of States, this provision is instrumental.
of lin-
helps in ensuring bilingual policy especially in the borderlands
the State
guistic states in case the dominant linguistic community of
does not bother about the interests of linguistic minority.
ee
A
6.5.4 Language in courts
The major policy in the matter of language in courts and authentic
version of legislations is continuation of the pre-Constitution position.
All the proceedings, orders and judgments of the Supreme Court are
required to be exclusively in English. Although with the previous con-
sent of the President Hindi or any other language may be used in the
transactions of High Court, in practice such use has been insignifi-
cant. An elaborate discussion on language in courts is undertaken in,
Chapter 8 keeping in mind law and social change discourse.
6.5.5 Special directives

State’s positive duty towards language development, social harmony
and protection of just interests of the linguistic communities has been
contemplated by the Constitution Makers as a fair public policy in a
series of directives. Some rights also flow from these directives since
there is no provision that makes the directives not enforceable in court
of law. According to Article 350, “Every person shall be entitled to sub-
mit a representation for the redress of any grievance to any officer or
authority of the Union or a State in any of the languages used in the
Union or in the State as the case may be.” Basically, this has the purpose
of removing linguistic barrier between individual and the administra-
tion, especially when he is aggrieved, and is desirous of getting reme-
dies through lawful means. The citizen friendly posture transcending
the language difference in a multilingual state is a laudable policy. It is
not cumbersome, but on the other hand, administratively comfortable
to know the grievance in the language understandable or intimate to
the aggrieved person. The scope of the phrase ‘any of the languages
used in the Union or State’ cannot be confined to respective official
languages if one looks to the objective underlying Article 350. Article
350-A compels the States to provide facilities for instructions in mother
tongue at primary stage of education, about which elaborate discus-
sion will be done later.
A mechanism for investigation, supervision and promotion of lin-
guistic harmony at State level has been framed in the Constitution.
Article 350-B provides for appointment of Special Officer for Linguistic
Minorities by the President. It shall be his duty to investigate all mat-
ters relating to the safeguards provided for the linguistic minorities
under the Constitution and report to the President upon those matters
at such intervals as the President may direct, and the President shall
cause all such reports to be laid before each House of Parliament, and
sent to the Governments of the States concerned. A permanent body
called Commission for Linguistic Minorities has been established
Language policy
AS SOR se under the Constitution: background and content
asSPIRE SEU SO a le
295
whose members are appointed for limited term from time to time. The
Annual Reports of the Commission disclose the state of affairs on pro-
tection of the interests of linguistic minorities in the matter of mother
tongue instruction, access to public employment, use of the language
in administration and their treatment in public life. In sensitising,
motivating and warning the majority led Government to protect the
interests of minorities, the supervisory function makes a significant
contribution.
An ideology of developing competent and acceptable national lan-
guage was in the mind of Constitution makers owing to the influence
of Gandhian thoughts and aspiration for national identity through
a national language. Development of Hindi language is planned in
Article 351, which provides, “It shall be the duty of the Union to pro-
mote the spread of the Hindi language, to develop it so that it may serve
as amedium of expression for all the elements of the composite culture
of India and to secure its enrichment by assimilating without interfer-
ing with its genius, the forms, style and expression used in Hindustani
and in the other languages of India specified in the Eighth Schedule,
and by drawing, wherever necessary or desirable, for its vocabulary,
primarily on Sanskrit and secondarily on other languages.”
6.5.6 Educational rights

Apart from the above policies under Part XVII of the Constitution,
there are clear provisions under Part III conferring specific advantages
and protections to the linguistic minorities. Right to conserve culture,
language and script under Article 29, right to establish and administer
educational institutions under Article 30, right to equality and non-
discrimination on irrational grounds, which include language-based
discrimination, make a significant contribution towards linguistic jus-
tice. These aspects will be discussed below in Chapter 8. Under Article
51-A(e) there is fundamental duty on the part of all citizens to pro-
mote harmony and spirit of common brotherhood transcending the
religious, linguistic and regional diversities. Welfare of all sections of
society without regional disparities contemplated through state action
under Part IV of the Constitution also mitigates bitterness arising from
language-based differences.
6.5.7. Comments on language policy

sed the
The constitutional policy on language issue has largely traver
ased dis-
path of equal language rights and minimised language-b
side in that
criminations. The language provisions have a positive
and rule out
they make the national ideal of linguistic tolerance clear
296 ge and Law
Languaae
a a a
language imposition. It is interesting to note that instead of agreeing
for imposition of language on unwilling community, some members
suggested for choosing a language of equal difficulty (like Sanskrit)
as the official language to put an end to controversy about an Indian
language to become national language. The proposal suffered contra-
diction because it involved imposition. Jawaharlal Nehru brought out
the essence of the formula in the following words:
“You just cannot force any language down the people or group who
resist that. You cannot do it successfully. You know that it is conceiv-
ably possible that a foreign conqueror with the strength of the sword
might try to do so, but history shows that even he has failed. Certainly
in the democratic context of India it is an impossibility. You have to win
through goodwill of those people, those groups in India in the various
provinces whose mother tongue is not Hindi.”*"
Rajendra Prasad, the President of Constituent Assembly, viewed that
the language formula saved the country from two difficulties viz.
using large number of languages for the country as a whole and sepa-
ration of provinces, which did not like to submit or accept any par-
ticular language under pressure. He regarded that the Constituent
Assembly had done the wisest thing by formulating and accepting the
present formula.® It is regarded that 95 per cent of the language prob-
lem is resolved with the constitutional formula. The large majority
of the Assembly believed that the use of many Indian languages and
English was compatible wita national unity and with the evolution of
a national spirit. In order to promote inter-permeability of Indian lan-
guages or to bridge them for mutual understanding, V.K.R.V. Rao has
suggested common script for all Indian languages without sacrificing
their original script.** He viewed, “Facilitating inter-communication
among the multilingual masses of India will be the biggest single step
for bringing about emotional integration and building up a common
sentiment of Indian nationality.”* It is doubtful whether such measure
is feasible or conform to language rights.
There are comments on language provisions to the effect either
that they are concerned more with difficulties of achieving results
than with the necessity of doing things effectively and promptly or
that they are ambiguous and confusing. In fact, these features have
arisen from the fact that the language formula was carved out through
*' At pp. 1416-17. He viewed in another context, “Language ultimately grows from
the people; it is seldom that it can be imposed.” S.K. Agarwala, supra, n. 80 at p. 143.
2 At p. 1493.
* Granville Austin, Indian Constitution: A Cornerstone of aNation (Oxford University
Press, New Delhi) at p. 307.
** V.KRY. Rao; supra, n. 54 at pp. 44-45.
®° Ibid, at p. 45.
Implications of the Eighth Schedule
nn Th Sus ets ile. ae 297
compromise. The need to cultivate forbearance and caution in the mat-
ter of language is implicit in the language provisions.*
6.6 Implications of the Eighth Schedule

Genesis of the Eighth Schedule is traceable to Munshi-Ayyangar for-
mula that each regional language shall be represented on the Language
Commission. Nehru considered the list as assuring to the languages
their due place of respect in national life. Later it was provided in the
Constitution also that these languages shall be the source from which
Hindi should broaden itself. Some unwritten criteria for including a
language into Eighth Schedule include: existence of separate literary
traditions, possession of separate script, concentration of large number
of speakers of the language preferably over a continuous geographical
area or in a widely dispersed situation, being medium of expression
of culture and heritage so that it may become a resource language for
modernisation of other literary languages. It has been ruled by the
Supreme Court in Kanhaiya Lal Sethia v. Union of India®’ that to include
or not to include a particular language in the Eighth Schedule is a pol-
icy matter of the Central Government and the Court cannot interfere
in the matter. Further, no one has any Fundamental Right to compel
the Centre to include any particular language in the Schedule.
For non-Hindi speaking people it was expected to serve as psycho-
logical support and recognition of identity. As Durgabai Deshmukh
said, “We had these languages listed in the Constitution to protect
them from being ignored or wiped out by the Hindi-wallahs.” The
concern to immunise the composite culture from the influence of pow-
erful language of the nation was also expressed by incorporating the
list. As the tangible benefits to the listed languages were not substan-
tial, the first Language Commission opined, “There is no particular
distinction bestowed on a language” because it is named in Eighth
Schedule. But contrary to this claim, the visible advantages of inclu-
sion in the Schedule include the following in addition to the above
noted factors: (i) facility for simultaneous translation in Parliament; (i)
inclusion in UPSC examination owing to parliamentary resolution of
1967; (iii) allocation of Central Government funds; (/v) inclusion in state
sponsored electronic media and film awards; (v) possibility of recogni-
tion as one of the official languages under Article 345; and (vi) oppor-
tunity for submission of petitions in the listed language for redressing
the grievances under Article 350. These are primarily facilities whose
a Commission),
8 Report of the Commission on Centre-State Relations 1985 (Sarkari
para 20.1.26-27.
87 (1997) 6 SCC 573: AIR 1998 SC 365.
298 LI. and Law
LanguageRS
5 AE IN OLE TEA RT A NTN
scope is confined on grounds of administrative convenience and pub-
lic policy. Udaya Narayana Singh includes in this list the state obliga-
tion to provide mother tongue instruction. However, regarding state
obligation to provide mother tongue instruction at the primary stage
under Article 350-A, the Eighth Schedule of a language shall not be
material since what is at stake is Fundamental Right to education.
It is because of the above reasons of emotional satisfaction and prac-
tical advantages that amidst non-scheduled languages there is aspira-
tion to get within the orbit of Eighth Schedule. Accordingly, the number
of languages in Eighth Schedule has grown from 13 to 22. Recently in
2004, the Union Government has bestowed the status of classical lan-
guage to Tamil on the basis of facts such as possessing independent
body of literature continuously for more than 1000 years. The criterion
for identification of a language as classical one has been made rigid
subsequently. This status confers entitlement to grants of funds for fur-
ther development of the language. As reported on 25 December 2005,
the extent of grant for Tamil language is Rs 3.5 crores in 2005. There are
other Indian languages qualifying for similar status. This has given
rise to public dissatisfaction and agitation in some states. It is submit-
ted, the remedial role of equality to deal with partisan policies shall be
employed to reform the position. In 2008, the classical language status
was extended to Kannada and Telugu after long agitation.
6.7 Non discrimination in public employment on grounds of

language
In a multilingual democracy, the two conflicting interests faced in the
sphere of language-in-public employment are: the interests of the citi-
zens to get the governmental service in their language; and secondly,
interests of all linguistic groups to have equal access to public employ-
ment.” Sometimes, the problem is made more complicated when jobs
in particular linguistic state are confined to the people speaking offi-
cial language of the state. Linguistic hegemony by the majority surely
unleashes the policy of exclusion and deprivation of entitlements
for the linguistic minority. The majoritarian dominance resulting in
oppression of the linguistic minority tilts the majority-minority power
relation. But the republican spirit flourishing in multicultural society
demands that occupational expectations of multiple linguistic commu-
nities are not frustrated by any arbitrary or chauvinistic approaches of
regional majorities having sub-national loyalty2°
** Udaya Narayana Singh, supra, n. 14 at p. 743.
*® Pierre Foucher, “The Right to Receive Public Service in Both Official Languages”
in Michael Bastarache, Language Rights in Canada, at p. 213.
*® P. Ishwara Bhat, “Language Criterion and Equal Access to Public Employment”
Non discrimination in public employment on grounds of language
S a: 299
,-
Public employment is one of the good things of life, an access to
which ought not to be based on an irrelevant criterion. In this sphere,
knowledge of a specific language is generally linked with its use in
rendering the governmental service in that language. Since this factor
can be satisfied through intensive in-service training and in the course -
of work, knowledge of the language ought not to be made a threshold
issue in entering into public employment.
A contrary approach brings a situation of human right violation
because linguistic discrimination ultimately occurs on immutable
personal characteristic. According to D.P. Pattanayak, “The equality
of economic opportunity between different language speakers in the
country and in one region and between different language speakers
within a region must be so balanced that the rule of the majority does
not become oppressive to the linguistic minority and the protection of
the rights of the linguistic minority subserve the larger interests of the
country." Only the egalitarian policy would build up a web of fair
multicultural relations.
Further, an appropriate management of a multicultural society
cannot but rely upon the policy of development of the society as an
integrated body rather than forming a conglomeration of lopsidedly
developed diverse groups. As emphasised by the UN Declaration on
the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities, 1992, “The constant promotion and realisation
of the rights of persons belonging to national or ethnic religious and
linguistic minorities, as an integral part of the development of society
as a whole and within a democratic framework based on the rule of
law, would contribute to the strengthening of friendship and coopera-
tion among peoples and states.”
Developmentessentially involves participation in economic progress
Article 4(5) of the Declaration states, “States should consider appropri-
ate measures so that persons belonging to minorities may participate
fully in the economic progress and development in their country.” It
should be noted that linguistic discrimination in the matter of access
to public employment not only obstructs the process of minority’s
participation but also discourages their free movements in search of
economic opportunities. Thus, its harmful effect upon human right
of mobility undermines the fact that language right has an important
dimension of human right.
SBRRM Journal of Law 39.

” DP. Pattanayak, Language and Social Issues (University of Mysore, Mysore 1981)
at pp. 25-6. .
2 Para 6 of the Preamble to the Declaration, 1992.
e
oe . ae e
0 ag
e shall be
In India, Article 16(1) of the Constitution states “Ther
to employ-
equality of opportunity for all citizens in matters relating
is not
ment of appointment to any office under the state.” Language
16(2).
an expressly prohibited ground of discrimination under Article
pub-
But when language criterion is used by the state in the matter of
lic employment, invariably the question of reasonable classification
from
arises under Articles 14 and 16(1). A clue that can be gathered
Article 350 is that governmental service shall be provided in the lan-
guage of people. Article 350 states, “Every person shall be entitled to
submit representation for the redress of any grievance to any officer
or authority of the Union or State in any of the languages used in the
Union or in the State, as the case may be.” In exercise of this constitu-
tional right, when a petition is submitted in the language used in that
state, duty to provide service in that language by an administrative
machinery well equipped in this regard becomes a logical corollary
and imperative. Since working knowledge of that language is sufficient
to provide the service, the requirement of Article 350 will be satisfied
by a post-recruitment in-service training in that language to a public
servant who was not well versed in that language at the juncture of
appointment. By employing the test of reasonable classification under
Articles 14 and 16(1) it can be appropriately held that a classification
that excludes the candidates coming from other linguistic communi-
ties in competitions for public employment is not having a rational
nexus with the objective of Article 350, as the objective can be achieved
by less restrictive means.
Further, by discouraging interests of mobility through frustrat-
ing occupational expectations, such policy becomes constitutionally
infirm in the light of freedom of movement guaranteed under Article
19(1)(d). The Supreme Court in Pradeep Jain referred to the lofty val-
ues of unity and integrity of the nation and consideration of common
economy while rejecting the rule of preference of locals in admission
to medical colleges. P. N. Bhagwati, J. observed for the Court, “It is dif-
ficult to see how a citizen having his permanent home in Tamil Nadu
or speaking Tamil language can be regarded as an outsider in Utttar
Pradesh or a citizen having his permanent home in Maharashtra or
speaking Marathi language be regarded as an outsider in Karnataka.
He must be held entitled to the same rights as a citizen having perma-
nent home in Uttar Pradesh or Karnataka as the case may be. To regard
him as an outsider would be to deny him his constitutional right and
to derecognise the essential unity and integrity of the country by treat-
ing as if it were a mere conglomeration of independent status.”
Pradeep Jain v. Union ofIndia, (1984) 3 SCC 654: AIR 1984 SC 1470.
Non discrimination in public employment on grounds of language 301
a ee
The principle is reaffirmed in T.M.A. Pai Foundation (1995) case%
where although fixation of different standards of fee for students
belonging to the same state and for those hailing from other states was
approved, the locals only rule—which had the propensity of excluding
“outsiders”—was outright rejected as violative of right to equality.
Concerning “locals only rule” in public employment, it is only
Parliament, which is vested with power under Article 16(3). Here, the
Parliament may prescribe through law any requirement as to residence
in the state as a prerequisite for employment under the state or union
territory or any local governments under them. The original intention
underlying this provision is that in any backward areas to which peo-
ple from advanced areas may come “flying in and walk with cakes” of
employment opportunities, in order to protect the local interests in the
larger interests of the nation, there should be some power and it should
be exercised only by the national government in case of dire neces-
sity.» It is very heartening that this provision is not abused hitherto.
Except making of a temporary law, that too limited to one state, this
provision is fortunately not used by Parliament.*® The non-exercise of
power by the Union and non-availability of power on the part of States
have undoubtedly reinforced the value of linguistic equality in the
sphere of public employment. Apparently, the social choice is against
any parochial approach of accommodating local chauvinism.
However, a requirement of in-service training in the official lan-
guage for the public servants, for the purpose of better public service
through that language, after entering into the public employment, is
conforming to the constitutional objectives. In Union of India v. Murasolt
Maran’, the Supreme Court upheld a Presidential Order which required
the administrative personnel who were not acquainted with Hindi to
undergo in-service training in Hindi, free of cost and with no penalty
for failure to undergo the training within-the due date, as a valid exer-
cise of power under Article 343(2) for promoting Hindi. Although the
Court did not refer to right to equality, the position would have been
the same if it were applied, as it did not impose disability or unreason-
able obligation on any class. The Court held that the legislative policy
underlying the Official Languages Act, 1963, which allowed contin-
uance of English in addition to Hindi for all official purposes, was
not limiting the Presidential powers of promoting Hindi. It is submit-
ted, Murasoli has not deviated from the principle of equal liberty of
314: AIR 1995 SC

% Shri Janki Devi Bhagat Trust v. Ram Swarup Jain, (1995) 5 SCC
2482.
% See infra, for discussion Ch. 9 on Regionalism. —
Act, 1957.
% Ibid, Public Employment (Requirement as to Residence)
97 (1977) 2 SCC 416: AIR 1977 SC 225.
e
O P e e
ational
all as it did not impose disability but insisted on equal occup
efficiency.
equal-
Another facet of right to equality i.e. the concept of substantive
c
ity came to the help of “linguistic have-nots” in their access to publi
employment in Javed Niaz Beg v. Union of India%*. In this case, at issue
was the constitutionality of a UPSC notification about combined com-
petitive examination for All-India Services, exempting the candidates
hailing from the North-Eastern States/Union Territories of Arunachal
Pradesh, Manipur, Meghalaya, Mizoram and Nagaland from taking
examination in any of the Eighth Schedule languages. In fact, scoring
qualifying mark in any of the Eighth Schedule language papers was
a general requirement for other candidates. Since many of the North
Eastern languages had inherent handicaps because of non-develop-
ment and were not included in the Eighth Schedule, the Government
provided for the above exemption. The Supreme Court upheld the
notification on the basis of substantive equality. V.R. Krishna lyer, J.
for the Court observed, “Logically, an option for them to take or not
to take Paper I on Indian languages is a facility which puts them on
par with the rest, once’ we understand that equalisation is part of the
dynamics of equality. This concession is not contravention of equality
but conducive to equality. It helps a handicapped group and does not
hamper those who are ahead.”
The Union Public Service Commission has allowed taking of All
India. Services examination in any of the Eighth Schedule languages.’
The Commission in on Centre-State Relations (Sarkaria Commission)
has recommended, “Proficiency in a particular language need not be
insisted upon at the time of recruitment to ensure that language is
not used as a factor to create difficulties in recruitment or subsequent
career in services." It has suggested for in-service training and suit-
able instruction in the official language.
In Karnataka, as in other states, the policy of requiring in-service
training in the official language for the public servants was adopted
under the service rules. Rule 3 of the Karnataka Civil Services (Services
and Kannada Language Examination) Rules, 1974 imposes obligation
upon Government servants in service on the date of commencement
of the Rules to pass Kannada language examination within two years’
from the said date and requires all the subsequent recruits to pass
the test within two years’ from their respective dates of appointments.
** 1980 Supp SCC 155: 1980 SCC (L&S) 473: AIR 1981 SC 794.
” Ibid, at p. 796.
10 The Gazette of India, 18-12-1982.
wt Parai20i1:33.
Non discrimination in public employment on grounds of
S language
r SY 303
Confirmation of probationer’s service and sanction of incre
ments are
made dependent upon passing of such examination.
According to Rule 4, after the expiry of two years from the date
of
commencement of the rules, no government servant shall be eligible
for promotion to any higher post unless he has passed Kannada lan-
guage examination and the prescribed examination, if any, for the
holder of such higher post. Similar requirement is made applicable for
appointments by transfers also. Concerning the implication of exemp-
tion given for two years’ (and also subsequent extension for one more
year) there were conflicting views of Single Judge Benches of Karnataka
High Court.’ The controversy ended when the Division Bench in B.V.
Krishnamurthy v. Commr.*? ruled that the Government servants who
got promotion during the period of exemption were not bound to pass
the Kannada test, and hence were not liable to be reverted to the origi-
nal post for not passing the test.
About the constitutionality of Rule 4, which made passing of
Kannada test a condition precedent for promotion, a challenge was
made on ground of right to equality. The Divisional Bench of the
Karnataka High Court ruled that the requirement could not be held
as irrelevant or unrelated to objects of efficient public service.* The
Karnataka Administrative Tribunal also upheld the constitutionality
of Rules 3 and 4 as conforming to Articles 14 and 16(1).'%
While the above approach balances linguistic interest in public
employment, a different approach of accommodating the regional
interest exclusively, by prescribing language competence as a prior
requirement at the threshold of public employment emerged in some
states. In Karnataka, the Rules were amended in 1982 to provide that
no candidate shall be appointed to any non-Gazetted post in Groups
B and C unless he passed the Kannada language test. In the very next
year, owing to agitation by minorities, the new rule was repealed, and
it was provided that Kannada language test was to be passed by the
candidate within five years’ from the date of entering into service. This
was followed by a massive protest by pro Kannada activists, owing to
which the time given for passing the test was reduced to two years’ and
it was also provided that after two years’, the entry into government
service in these categories should be confined to people who have
2 While in Thimmappa v. State of Karnataka, (1980) 1 KLJ 398 it was held that in case
of failure to pass the Kannada test within the period, there shall be reversion from
promotion, in M. Syed Ziaulla v. State of Karnataka, WP 13117/1978 dated 7-2-1979 it was
ruled that promotion will not be disturbed owing to failure to pass the Kannada test.
103 TLR 1987 Kant 2640.
1% Judgment dated 10-12-1986 by Divisional Bench of Karnataka High Court (P.C.
Jain and K. Shivashankara Bhat, JJ. were on the Bench).
15 Judgment dated 19-7-1990.
304 _Language and Law
Oe ee
government
working knowledge of Kannada at the time of entry into
on, 1984
service. The Twenty-fourth Linguistic Minority Commissi
ataka
has adversely commented on the above policy. Before the Karn
ent
Administrative Tribunal it was argued in a case that the requirem
of passing Kannada test for Group C posts (and also some categories
of Group B posts) and the opportunity for recruitees to Group A posts
(and remaining categories of Group B posts) to pass the test within
two years from the date of joining the duty amounted to discrimina-
tory treatment. The Tribunal rejected the argument by reasoning that
the classification was reasonable. It is submitted, in the light of Apex
Court’s judgment in V.N. Sunanda Reddy, the approach of the Tribunal
becomes untenable as will be discussed later.
Karnataka State constituted a committee headed by Dr. Sarojini
Mahishi to examine and report on modalities of enhancing employment
opportunities for qualified candidates of Kannada in Karnataka.”
The Sarojini Mahishi Committee Report, 1986, emphasised the policy
of “Jobs in Karnataka only for Kannada speaking people”. The follow-
ing recommendations of the committee are relevant for present dis-
cussion. Firstly, in all competitive examinations conducted by KPSC
or other recruitment committees one Kannada paper shall be com-
pulsory and failure in the paper shall bring ineligibility for selection.
In cases of selection through interview without written examination,
Kannada examination shall be conducted. Secondly, in state public
undertakings, except for pusts for which candidates possessing higher
technical qualifications are not available, for all the remaining posts,
only Kannadigas shall be appointed. Thirdly, state shall persuade and
ensure that in central public undertakings in Karnataka, following
ratio of employment opportunities of Kannadigas prevails: Class IV
posts 100 per cent; other posts having pay scales up to Rs 1250—8o0
per cent; and remaining higher posts—6o per cent. Fourthly, in private
undertaking getting facilities like land, water and electricity from gov-
ernment, except top level administrative posts, all the remaining posts
shall be filled by appointing Kannadigas. Finally, it suggested amend-
ments to Employment Exchange Act, give preference to Kannadigas in
public employment.
In spite of serious demands for implementation of the committee’s
recommendations, the State Government has desisted from imple-
menting it. The political dimension of majority-minority claims in
this sphere has obviously come in the way of implementation. It is
6 Ibid.
'"” The Committee was constituted in the background of observations made by a
sub-committee of the National Integration Council to the effect that discontent among
the candidates of local areas in the states due to non-availability of employment in
sufficient ratio should be resolved by more employment opportunities to them.
Non discrimination in public employment on grounds of language 305
n e OO tC
submitted, while efforts of enhancing of the abilities of local candi-
date to compete in job market by imparting skill is welcome, there is
clear difficulty for a discriminatory approach at the face of guarantee
of right to equality. An analysis of recent decision of the Apex Court
will make the point clear.
V.N. Sunanda Reddy v. State of A.P.*° is a case of far reaching impor-
tance in tackling linguistic chauvinism in the matter of access to public
employment. In this case at issue was the constitutional validity of two
A.P. Government orders of 1976 and 1981, which provided a weight-
age of 5 per cent of the total average maximum marks in the com-
petitive examination conducted by APPSC to candidates who passed
their graduation through Telugu medium. The advantage was avail-
able in specified categories of posts in Group II and Group IV service.
It was challenged that the impugned orders violated Articles 14 and
16. The Court struck down the order as discriminatory, but directed
that the appointments already made on the strength of the impugned
Government Order shall not be disturbed.
According to the Court, in a situation of severe competition in direct
recruitment from open market to limited number of posts, addition of
40 marks to Telugu candidates would make them to jump the queue
and steal a march over more meritorious candidates, which would not
only be discriminatory but also adversely affect administrative effi-
ciency contemplated under Article 335. When minimum eligibility
criterion was graduation, all candidates possessing minimum quali-
fication were to be assessed on the basis of relative merit; but the gov-
ernment order altered the criterion and rendered the consideration of
merit otiose.
The Court found that the classification of candidates into Telugu
medium candidates and non-Telugu medium candidates, insofar as
graduation is concerned, does not have any rational object sought to
be achieved thereby. If the object was to have proficiency in Telugu
language to be able to render service to the public in Telugu language,
that was forthcoming even from candidates who passed their gradu-
ation in non-Telugu medium, because passing one compulsory paper
of Telugu was a must for them. Further, the requirement of passing
language test during service before getting increment and confirma-
tion, satisfied the governmental objective. Majumdar, J. observed for
the Court, “Proficiency in Telugu language at entry point pales into
insignificance in so far as recruitment to these posts is concerned. 109
It is submitted, the Apex Court has rightly applied the egalitarian
principle, and the factor of passing in Telugu medium has no nexus
198 4995 Supp (2) SCC 235: AIR 1995 SC 914.

10 Ibid, at p. 920.
306 Language and Lawee
Ee e e e
eligibil-
with entry into public employment when “sraduation” is the
orders the
ity criterion. Compared to the Andhra Pradesh government
is more
reservation policy recommended in Sarojini Mahishi Report
to
serious in nature in offending the egalitarian principle and is liable
be struck down by the judiciary.
It can be inferred from the above discussions, so long as language
is an indispensable component of better service as in Murasoli, the lan-
guage requirement is justifiable. But when it is a mere pretext for exclu-
sion of some class, it deviates from the equal liberty concept. The judi-
cial approach in this regard is one of benevolent statesmanship. This is
reflected in the words of V.R. Krishna lyer, J. when he observed:
“Indeed, rich diversity of India and the indispensable unity of the
nation make it a linguistic imperative that a spirit of generosity to ter-
ritorial communities, especially minorities without political pull, is of
the quintessence of our constitutional policy."
Language posits an important human interest of expressional activity
in any social set-up. Its relevance in public employment is only per-
taining to service to the people in their language and not in select-
ing a particular language community alone for public employment.
At the threshold of entry into public employment, language is only a
marker of personal attribute for which the only weightage that can be
given ought to be confined to its inevitability in efficient service. The
Supreme Court’s judgment in V.N. Sunanda Reddy should be taken as
a major constitutional policy of equality in access to public employ-
ment and the efforts of linguistic reservation by the States should be
eschewed. Right to equality plays a significant role for attaining a
comfortable result in this sphere by wrestling with hegemonic policies
and oppressions. As in other spheres, here also, the more the equality,
the more the liberty.
6.8 Use of language in legislative process

Making and enforcement of law are also the process and aspects of
culture in larger sense. The values, thoughts and public opinion stored
in the medium of language ought to influence such a process. In a mul-
tilingual democratic society, equality of opportunity to participate and
deliberate in the law-making process through the legislator’s own lan-
guage is fundamental to democracy.’ While in the state law-making
process largely a fair linguistic homogeneity prevails, at the federal
"0 Javed Niaz Beg v. Union of India, 1980 Supp SCC 155: 1980 SCC (L&S) 473: AIR 1981
SC 794 at p. 795.
'! P. Ishwara Bhat, “Multilingualism and Legislative Process in the Federal
Democracies: The Indo-Canadian Experiences” (1994) 56 Mysore University Arts
Journal 143 at p. 150.
Use of language in legislative process 307
ets mere ee Ey Oe
level, the existence of a mosaic of multiple linguistic groups gives rise
to some problems.
Article 120(1) of the Constitution provides, “Notwithstanding any-
thing in Part XVII, but subject to the provisions of Article 348, business
in Parliament shall be transacted in Hindi or 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 English
to address the House in his mother tongue.”
Article 120(2) provides for discontinuance of English for transacting
the business of the House after 1965 in the absence of a saving law. But
the Official Languages Act, 1963 and 1967 provided for continuance of
English in addition to Hindi for all the official purposes of the Union
for which it was being used immediately before the statute and for the
transaction of business in Parliament.'” It also provides for the use of
both Hindi and English in resolutions, general orders, rules, reports
and official papers laid before a House or Houses of Parliament.
But there is no law compelling the publication of statutes or proceed-
ings of the Parliament in regional languages mentioned in the Eighth
Schedule. It is submitted, this is an unsatisfactory situation, which is ~
partly allayed by the practice of translating the important Union laws
into regional languages by the non-Hindi speaking states. According
to Section 2 of the Authoritative Text (Central Laws) Act, 1973, such
versions are authoritative texts of central statutes in that language.
According to Article 348(1)(b) the authoritative texts of all Acts, passed
by Parliament or State Legislatures and ordinances promulgated by
President or the Governor and all orders, rules, bye laws issued under
the constitution or under any law made by Parliament or State shall be
in English. The Official Languages Act, 1963 provides for continuance
of this position. Article 349(1)(b) was enacted to suit to the objective
that the proceedings of the Supreme Court and High Courts shall be
in English. Although after the Official Languages Act, along with the
English text, Hindi text of the statute is compulsorily required, the
constitutional position is that in case of divergence or conflict between
the two, English text will prevail. However, taking an analogy from
the judicial approach on Hindi texts of state law, to resolve the ambi-
guities in the English text of the statute, Hindi text may be referred to.
According to the rules of practice of Parliament, speeches made by
members in any of the Eighth Schedule language other than Hindi
and English are to be tape recorded, translated and published in Hindi
and English with necessary note. In 1963 the system of simultaneous
l Languages
"2 S 3 of the Official Languages Act, 1963 and Section 2 of the Officia
(Amendment) Act, 1967.
308 eLangu
e age and Law
MWe LE
interpretation of some of the Eighth Schedule languages was intro-
duced and this facility was subsequently extended to other languages.
According to Kaul and Shakdhar, “Turning the language-selector knob,
a member can listen to the proceedings in the language of his choice.“
Thus, the gap that would have remained otherwise, is filled up by par-
liamentary rules. While this is true pertaining to the House of People,
the position obtaining in the Council of States i.e. the second chamber
is not satisfactory because of the prolonged failure of the Secretariat in
filling some of the vacancies to the posts of simultaneous translators.
Under Article 345, the Legislature of the State may, by law, adopt
anyone or more of the languages in use in the State or Hindi as the lan-
guage or languages to be used for all or any of the official purposes of
that State. Accordingly, several States have enacted Official Languages
Acts adopting the dominant regional language or languages as the offi-
cial language or languages for legislative and other purposes. Under
the authority of these Acts, many a times, legislation are enacted only
i> itindi or the regional language without any accompanying English
text of the statute. In Pyarelal v. Secy., ILM.M. Sangh™4, the High Court of
Madhya Bharat held that the mandatory provision under Article 348(1)
(b) making English text of the statute authoritative was only for a lim-
ited purpose of having an authoritative text, and that it does not nullify
a statute passed in Hindi without any English text. In Mathura Prasad
v. State of Bihar'5 the Patna High Court held that non-publication of
English translation of a sta.ute, which was originally in Hindi version,
did not violate Article 348(4)(b)(iii). The Court distinguished Rajasthan
High Court’s decision in Bhikam Chand v. State™*®, which had held that
English version of the statute alone is to be treated as the authorised
version, on the ground that Rajasthan decision stood on different set
of facts involving absence of duly authorised Hindi version also. As
observed by the Patna High Court in Alok Kumar v. State:
“By no stretch of imagination it can be lawfully contended that the
publication of the English translation is a condition precedent for the
enforcement an Act, or Ordinate etc. made in the state language. The
only consequence of the absence of an English translation will be that
there will be no authoritative text but on that account it cannot be held
that in the absence of the publication of authoritative translation, the
Ordinance itself will not be effective.”
"S MN. Kaul and S.L. Shakdhar, Practice and Procedure of Parliament (2nd Edn.,
Metropolitan Book Co., Delhi 1972) at p. 845.
"4 AIR 1957 MP 26.
® AIR 1975 Pat 295.
=
—
'e AIR 1966 Raj 142.
1 -_
’ Alok Kumar v. State of Bihar, AIR 1976 Pat 392 at p. 394.
Language hegemony in public forum and the response of equality 309
e e
In J.S. Mills case"* the Allahabad High Court adopted a similar
approach. It went a step ahead in H.L.M. Biri Works v. STO"9 by hold-
ing that when the legislation is originally enacted in Hindi followed by
an English text, in interpreting the legislation, the original version is
to be taken into consideration to resolve the ambiguity in the English
text. |
It is submitted, if the approach of publishing legislations exclu-
sively in the regional language of the state without conforming to
“English text requirement” of Article 348(1)(b) is adopted by the State
Legislatures, as is approvingly done in Raichand, Mathura Prasad and
Alok Kumar, the task of communicating the legislative policy to all the
people of the state and effectively enforcing them becomes difficult.
From the angle of linguistic minorities, their right to know and right to
fair procedure are jeopardised by such an approach. Holding Article
348(a)(b) as mandatory and at the same time treating it as having lim-
ited scope is incongruous.
To ensure multilingual understanding and debate, the system of
simultaneous translation should be refined and strengthened and a
liberal approach to Article 120(1) in the light of republican spirit should
be adopted. Since democracy presupposes equal right to know the
law, translation of Acts, Orders and Resolutions passed by Parliament
into the Eighth Schedule languages becomes essential. Translation of
all state statutes into English and Hindi should be compulsory. The
present practice of multiple bilingualism in states should be continued
as it expands the scope of language rights. On the whole, the right to
know and to participate elevates language rights to human right. The
law-making process cannot be blind to this reality.
6.9 Language hegemony in public forum and the response of

equality
Public forum gives an opportunity for expressional and communi-
cative acts. It is an arena in which use of language can be made to
communicate to others. Display of signboards in particular language,
exhibition of films in theatres, use of language in radio or television,
and conducting of assemblies constitute some of the contexts of public
forum. ;
Sometimes, hegemonic policies of linguistic majority results in a
rule forbidding display of sign board in a language other than regional
language. The recent rule of Brihanmumbai Municipal Corporation,
"8 JS. Mills v. Presiding Officer, I.T. (III), AIR 1962 All 240.
19 HL.M. Biri Works v. STO, AIR 1959 All 208.
10 JILI 661 at p. 665.
120 Atul Chandra Patra, “Multilingual Legislation” (1968)
Language and
ee Law
310
TO ee ee
in
which imposes penalty for use of any language other than Marathi
any of the commercial signboards in the city of Mumbai, is one such
example. It is submitted, display of signboard in a language of one’s
choice is a speech function, and has a component of right of conserv-
ing one’s language and cultural identity. It involves application of free-
dom of speech and expression and also of business. The restriction is
abridging these freedoms, and is not justifiable as reasonable restric-
tion on permissible constitutional grounds. It clearly violates right to
equality, since it is arbitrary and does not comply with the requirement
of reasonable classification. In Ford v. Quebec’** the Canadian Supreme
Court has struck down similar rule made by Quebec Government
as violative of freedom of speech and expression and also of right to
equality. In some cities of Karnataka there have been some attempts to
tarnish and disfigure the signboards displayed in English, in order to
persuade that the signboards shall be in Kannada. The miscreant acts
are silently tolerated by the State, which is, it submitted, violates the
constitutional obligation of the State.
Regarding opportunity for exhibition of films produced in other lan-
guages in the capital city of linguistic state, sometimes, discriminatory
policy is adopted by the Government under the pressure exerted by the
regional language film industry of the concerned state. In Bangalore
(2005) the Kannada film industry and the Kannada activists resorted
to forced closure and bundh of theatres screening new other-language
films demanding for governmental regulation on screening of new
films of other languages, because of which theatres for screening new
Kannada films were not sufficiently available. Yielding to the pressure,
the Government of Karnataka passed orders to the effect that no new
films of other languages shall be allowed for screening except after the
expiry of a short duration of six weeks after its release. Earlier, there
was an order issued by the Government compelling the license hold-
ers of film theatres to exhibit Kannada films for a minimum number
of 12 weeks per year in order to encourage Kannada film industry. In
Kapoor Investments v. State of Karnataka’*, the Karnataka High Court
struck down the order as an unreasonable restriction upon freedom of
business, trade and occupation. Concerted application of freedom of
speech, expression, business and right to equality enabled a fair posi-
tion in this case. It is submitted, the protectionist policy underlying
the governmental order is not justifiable when perused from the angle
of equality in language rights and the High Court took appropriate
course of action. It should also be noted that it is the economic inter-
est of the region that has been indirectly projected in the language-
121 (1988) 2 SCR 712.

22 TLR (1989) Kant 183.
Supervisory role of the commissioner of linguistic minorities
TRS RES BE AS Ei REPT a nel 311
preference rule. When the fate of such dubious order is well known,
resorting to it under pressure does not suit to multicultural system.
The fact that a linguistic community employs freedoms of speech,
peaceable assembly and association in conservation of language is
more clearly visible in Linghanna v. State of Mysore’. Here the peti-
tioner had resorted to riotous behaviour to disturb a public function
arranged by a linguistic community, demanding that the proceed-
ings shall be conducted in a regional language. The argument that
he had fundamental freedom of speech in support of his behaviour
was rejected by the Mysore High Court on the ground of public order,
The conflict between individual freedom and community’s freedom is
resolved here by using the reasonable restriction clause. In V.K. Javali
(Dr.) v. State ofMysore’, the demand made by a public servant in a pub-
lic speech for Kannada medium in education and government service
was held as not causing public disorder and hence, the disciplinary
action set against him violated his freedom of speech.
6.10 Supervisory roleof the commissioner of linguistic minorities

Under Article 350-B of the Constitution, a permanent body called
Special Officer (Commissioner) for Linguistic minorities is consti-
tuted to make periodic survey and investigation to ensure compli-
ance with the safeguards provided for linguistic minorities and report
to the President of India about the prevalent position wide over the
nation. The President shall cause these reports to be laid before each
House of Parliament and sent to the Governments of the States con-
cerned. These reports give valuable information about the extent of
practice of mother tongue instruction for the linguistic minorities in
each state, translation of governmental communications in the minor-
ity language and access of the minorities to public employment and
occupational opportunities. The Union Government has finalised
the Scheme for Practical Implementation of Safeguards for Linguistic
Minorities based on recommendations of the conferences of Education
Ministers and Chief Ministers as a benchmark of protection to be
accorded. These include: facilities for instruction in mother tongue at
various levels of education; implementation of three language formula
for facilitating communication between people in different parts of the
country; requirement of publication of important government notices
and communications in the minority language if the population of lin-
guistic minority at the district level is 15 to 20 per cent of the popula-
tion; recognition of additional official language status to a language in
123 ATR 1954 Mys 12.

124 ATR 1966 SC 1387.
e
W e e —E e
language;
case 60 per cent of the population of the district speak that
services,
avoidance of language discrimination in recruitment to state
Level
and coordination through the works of Zonal Council and State
bodies.
A sample scrutiny of some of the reports given by the Commissioner
discloses the range of subject-matter investigated by him. It gives lan-
guage profile of each state population and of languages spoken by
them; highlights the achievement or failure of the State in facilitating
mother tongue instruction in primary education; notices the working
of three language formula; discloses about recognition of, and sanc-
tion of grants-in-aid to, linguistic minority institutions; looks to the
extent to which governmental communications are made available in
minority language especially in border districts; and finds out, if any,
the language-based discrimination in access to public employment. Its
observations and recommendations have potentiality of alerting the
public opinion, the government and the minorities. The report shall
be laid down before both Houses of Parliament for information and
deliberation. However, as the Sarkaria Commission has pointed out,
these reports are not adequately discussed in the Parliament.’ The
President’s power of issuing directions to the States for recognition
of minority languages, which are spoken by substantive proportion
of State’s population, also helps in supervision to maintain linguistic
harmony.
6.11 Authoritative text of the Constitution in Hindi language

The Constitution (Fifty-eighth Amendment) Act, 1987 has incorpo-
rated Article 394-A which confers power to the President for causing
the publication of the translation of the Constitution in Hindi language
signed by members of the Constituent Assembly with necessary mod-
ifications and incorporating all. the amendments to the Constitution.
The translation of the Constitution and the amendments shall be
the authoritative text in Hindi language for all purposes. A question
would arise whether like Canada, where both the English and French
version of the Charter is authentic and acceptable for interpretation,
the judiciary can take the help of Hindi version of the Constitution
for interpretation in case of ambiguity. It is submitted, by virtue of
Article 348(1)(b), since authoritative text of all orders, rules, regulations
and bye-laws issued under the Constitution or laws and all the Acts,
Bills, Ordinances promulgated by the President or the Governor shall
be in the English language for the purpose of proceedings before the
Supreme Court and High Courts, Article 394-A does not put the Hindi
9 Para 20.1.24 of the Report.

Conclusion 313
ee CY
version on a pedestal equal to that of English text for application in

Courts.
6.12 Conclusion
In a multilingual federal democracy like India language right attains
a great significance as it has wider dimensions of human rights.
Language’s connection with human emotion and communitarian sense
of identity needs to be understood pragmatically as part of culture and
not a factor to be glorified with fanaticism to divide between “we” and
“they”. While language provides access to various good things of life,
in view of right to dignified life and interaction between equality and
liberty, limiting the entitlements solely based on language is problem-
atic. The questions of linguistic organisation of states and policy of
official language at the national and regional level, the answers found
and the experiences felt about them largely vindicate the advantages
of a cautious path of balancing paved through political compromises.
As a social and cultural resource, language has great instrumental
importance. Its use for various activities—expressional, occupational,
social, educative and political—brings vital constitutional principles
into action. Equality, as a major policy choice in the Constitution, has
discredited linguistic hegemonies, and succored the linguistic minori-
ties. Indian constitutional policy on language has shown adequacy
of strength to deal with language problems by keeping away forces
of linguistic chauvinism at comfortable distance at both Union and
regional levels. The blend of pragmatism and ideals of linguistic har-
mony contributes towards national integration. The interplay between
public opinion and policy-making could stand above the emotional
cleavages and produce a rational framework. While this speaks of
the social dimension of language policy, no amount of complacence
should enter into the administration’s mindset, as the value of linguis-
tic harmony should be meticulously cultivated, continuously carried
and fondly internalised in the nation as a whole. The fact that time and
again aberrations occur in language front, warns us to guard against
emotional susceptibilities.
eel aitehighll
Sees
tte 834 Shree itr
CHAPTER 7
ae
SL a ire ae
LANGUAGE RIGHTS IN EDUCATION
7.1 Language and education: mutual assistance for development

and social transformation
Language is a wealthy cultural resource, and a key to the knowledge
system. Education is a formal method of accessing and internalising
knowledge, awakening to culture, and endeavouring towards perfec-
tion in personal and social life. It prepares the learner to equip with
adequate competence to enter into the competitive world with suitable
skill, awareness and moral vision.’ Learning a language, and learning
' Regarding the content of educational right of religious/linguistic minorities, it
was Said in Re, Kerala Education Bill, 1957, “...minorities will ordinarily desire that their
children should be brought up properly and efficiently and eligible for higher university
education and go out in the world fully equipped with such intellectual attainments
as will make them fit for entering the public services, educational institutions of
their choice wiil necessarily include institutions imparting general secular education
also. In other words, the article leaves it to their choice to establish such educational
institutions as will serve both purposes, namely, the purpose of conserving their
religion, language or culture, and also the purpose of giving a through, good general
education to their children.” AIR 1955 SC 956; see also Brown v. Board of Education, 347
US 483: 98 L Ed 873 (1953); In Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645: AIR
1993 SC 2178 it was observed by Mohan, J., “The fundamental purpose of education is
the same at all times and in all places. It is to transfigure the human personality into
a pattern of perfection through a synthetic process of the development of the body,
the enrichment of the mind, the sublimation of the emotions and the illumination of
the spirit. Education is a preparation for a living and for life, here and hereafter.” An
old Sanskrit adage states, “That is Education which leads to liberation”—liberation
from ignorance which shrouds the mind; liberation from superstition which paralyses
effort, liberation from prejudices which blind the vision of the truth.” The University
us
Education Commission chaired by Dr. S. Radhakrishnan had observed, “To lead
316 Language-Rights in Education
s of conservation of
through that language are not only the processe
ation itself. Hence,
language but also constitute the veritable act of educ
nal right. Mutual
linguistic rights in education form a part of educatio
from appropri-
reinforcement of both language and education arise
like India,
ate language policy in education. In a multilingual society
the one hand,
which is influenced by globalisation and liberalisation on
on the
and social thrust for maintenance of regionalism or local culture
cy and
other hand, there arise sensitive issues relating to language poli
language planning in the field of education. The contested issues are:
y,
whether mother tongue instruction shall be the invariable state polic
whom
and if so, upto what level that it shall be prescribed, and against
(whether to minorities and non-minorities) and even against parental
choice? Whether at higher levels of education, learning in particular
medium of instruction can be made compulsory? Whether prescrip-
tion upon all students to compulsorily study regional language and/or
English at any level of education for reasons of sociability is appropri-
ate and constitutional? Whether minority language educational right
or any other provision of Fundamental Rights like freedom of busi-
ness, religion, life and equality can be invoked against the state’s lan-
guage planning in education? Whether minority language educational
rights have benefited the language in contrast to benefit to the linguis-
tic community? What is the basis and scope of right of parental choice
in the matter of child’s e¢acation, especially when English medium
schools pretend to serve globalisation and technical education?
Beneath these issues lie intimate social questions about the dichot-
omy between language of people and language of knowledge, applica-
tion of the forces of state, market and society, and conflicts between
globalisation and regionalisation of culture. Scholars recognising the
dichotomy between people’s language and knowledge’s language con-
sider that mutual give and take between these two languages should
enhance the competence of both the languages, avoid conflicts and
promote cosmopolitanism.? State, market and society conceptualise
language planning. State identifies the “legitimate language” for learn-
ing, being influenced by societal reasons. As Yogendra Singh views,
“The role of cultural and social mobilisation of people’s consciousness,
the rise of new pressure groups, new classes or movements and the
ability of some sections to appropriate the influence generated by the
from darkness to light, to free us from every kind of domination except that of reason,
is the aim of education.”
> U.R. Ananthmurthy, “Jana bhashe mattu jnanada bhashe” Udayavani, 17-12-
2006, an article in Kannada; English attained prominent place in world languages
due to economic, political and scientific reasons. What was only a wild lenguage in
12th century AD rose to such an imperial position because of its use as lang~:age of
knowledge. Prajne mattu Parisara (2004) at p. 40.
state.” Unless the market is dominated by the state, market also
will
be wielding its influence. The policy of modernisation (a kind of west-
ernisation) through English education,‘ which involves an element of
symbolic domination, is resisted by resilient forces of the society to
assert the identity and importance of local linguistic culture, result-
ing in making the learning of regional language or learning through
regional language compulsory. In view of the fear about endangerment
to language, such policies are put forward. According to the UNESCO
standards, a language faces a situation of endangerment when the per-
centage of children in that speech community studying that language
falls below 30 per cent? In India some of the tribal languages only face
such situation. Another type of response by speech community is to go
for hybridisation, by compelling children to learn one paper of English
in an atmosphere of mother tongue instruction, and compelling the
English school children to study regional language. Prolonged litiga-
tions stretching beyond a decade, the complex interlocutory orders and
their vacation have been the features of this contesting site. Sociology
of law in this sphere has pointed out the gap between law and soci-
ety, and problems of accommodating social transformation. Linguistic
consciousness of people exhibits sometimes double standards. As
Yogendra Singh puts it, “It is a common knowledge that members of
elite and middle classes, while professing strong verbal commitment
or loyalty to a language of their own community to derive political or
ideological support in behaviour, deviate markedly from such norm
when they send their own children to educational institutions where
medium is a language of symbolic domination. ..”°
The factor of multilingualism, cherished by the Indian society as a
part of the policy of multiculturalism, has also significant role to play
in planning language in education. By taking the pluralist paradigm
seriously, linguistic hegemonies can be avoided and a culture of sys-
temic coexistence can be ensured? This implies that every attempt has
3 Yogendra Singh, Culture Change in India (Rawat Publications, New Delhi 2000) at
:
p. 140.
4 For a discussion on similar lines, see, Mohamed S. Abdel Wahab, “Cultural
Globalisation and Public Policy: Exclusion of Foreign Law in the Global Village” in
Michael Freeman, Law and Sociology (Oxford University Press, Oxford 2006) at pp. 360-
66. ait
5 Yogesh Tyagi, “Some Legal Aspects of Minority Languag e in India” (May-June
to ignore UNESCO' s warning
2003) 33 Social Scientist, 5 at pp. 7-8. “It is unwise
are doomed or likely to
that close to half of the 6,000 languages spoken in the world
language s. The linguisti c
disappear in the foreseeable future. Some of them are Indian
at another place” at p. 22.
majority at one place must remember its minority status
Publications, New Delhi 2000)
6 Yogendra Singh, Culture Change in India (Rawat
. 142. . .
and Social Anthropology
e 7 Udaya Narayana Singh, in Veena Das (Ed.), Sociology
Languageee tion
Rights in Educaee
318 e ee e
O
the domi-
to be made by the society to maintain and develop not only
fewer
nant language but also the less dominant languages spoken by
lan-
numbers of people. It rejects the policy of replacement of many
n
guages by one language, There is also the social factor of deprivatio
on the part of children belonging to working class or poorer sections,
s to
who, because of their economic position, are not able to have acces
good language-learning environment. The chain consequences of pov-
erty, poor language-learning environment;poor language, poor school
performance, and deprivation of access to professional education or
employment result in creation of unequal opportunities.”° Hence, lan-
guage planning in education should address the problems of lower
strata of society also. For establishing harmonious relation and trans-
action with dominant linguistic community of the region, the linguis-
tic minority of the region needs to have an “immersion” course in the
dominant language of the region. Further, the urban/rural divide and
the diversity of policies in various parts of India have also added to
the complexity. Thus, social engineering of language in education has
become a complicated task.
7.2 Mother tongue instruction in primary education: justifications

and perspectives
Mother tongue is the most intimate medium to any person of tender
age for learning, for interralising the fresh experiences of life in one’s
own cultural surroundings and vocabulary, and for self-expression.
Gandhiji held it necessary for every child to have the foundation of
his development laid on the solid rock of the mother tongue rather
than wasting of immeasurable energy in mastering a foreign language
without much use and also by neglecting one’s own mother tongue."
He emphasised giving rightful place for regional languages in the mat-
ter of medium of instruction. Learning in alien language inflicts cruel
strain on the children, renders the learning process mechanical, and
(Oxford University Press, New Delhi 2003) at p. 741 agreeing with Probal Dasgupta,
D.P. Pattanayak and Lakshman Khubchandani.
* AK. Srivastava “Language Planning in Multilingual contexts: Educational and
Psychological Implications” in E. Annamalai, B.H. Jernudd and Joan Rubin (Eds),
Language Planning (CIIL, Mysore 1986) at pp. 43, 52.
* D.P. Pattanayak, “Language, Politics, Region Formation and Regional Planning”
in E. Annamalai, B.H. Jernudd and Joan Rubin (Eds.), Language Planning (CIIL, Mysore
1986) at pp. 18, 23.
" D Plumer, “A summary of environmentalist views and some educational
implications” in F. Williams (Ed.), Language and Poverty (Markham Publishing Co,,
Chicago 1970) at pp. 265-08 cited by A.K. Srivastava, supra, n. 8 at p. 53.
'' Gandhiji, cited in English Medium Students Parents Assn. v. State of Karnataka, (1994)
1 SCC 550: AIR 1994 SC 1702.
Mother tongue instruction in primary education 319
a nena ASDA
threatens to atrophy the development of mother tongue, as S. Mohan,
J. viewed."2
As early as in 1904 the Education Policy had resolved, “The mother
tongue of the pupil should be used as the medium of instruction both
at the primary and middle stages...English has no place, and should
have no place in scheme of primary education. It has never been part of
the policy of the Government to substitute English for the vernacular
dialect of the country. As a general rule, a child should not be allowed
to learn English as a language until he has made some progress in
primary stages of instruction and has received a thorough grounding
in his mother tongue.” Thus, local environment approach for child’s
learning was emphasised. The Indian National Congress’s resolutions,
1906 (familiarly known as “National Education Movement”) made it
clear that education shall be imparted in child’s mother tongue bring-
ing awareness about their literary traditions and cultural heritage.
The National Council of Education was set up by the Congress, which
established a college in Bengal. Under the influence of Sri Aurobindo
the Council gave a clear directive that education would be imparted
ordinarily through the medium of vernaculars, English being a com-
pulsory subject. In the second phase of the Education Movement, for-
mal attempt to make primary education free, universal and compul-
sory was initiated under the novel scheme of Gandhiji, called as Basic
Education. Mother tongue as the medium of instruction was retained
throughout.
After Independence, it was officially suggested by the University
Education Commission (1949) that Indians must learn a regional lan-
guage, a general language (Hindi) and English. The Commission for
Education, (1953) went one step ahead by recommending two more lan-
guages viz. mother tongue and a classical language. The UNESCO's
(1953) recognition of mother tongue education on grounds of psy-
chological, sociological and linguistic grounds had influence on this
approach. The Council for Secondary Education (1956) and the Central
Advisory Board of Education, (1957) brought out three language for-
mula under the influence of Nehru in two parts: (?) mother tongue,
Hindi and English for the non-Hindi zone; (ji) Hindi, any other Indian
language, and English for the Hindi zone. The three language formula
became problematic because of the following reasons: indifference of
Hindi belt to study an Indian language in addition to Hindi, and resist
ance by Tamil Nadu against imposition of Hindi. In 1966, Education
of
Commission liberalised the formula by providing that by the end
control
the middle school, a student should have acquired sufficient
Karnataka, (1994) 1 SCC 550: AIR
2 English Medium Students Parents Assn. v. State of
1994 SC 1702 at p. 1708.
tion
320
a eae cei Langu
fort Jere 2s in Educa
age aRight
rn lan-
over three languages: mother tongue, and two non-native mode
as an
guages viz. Hindi as an official and link language and English
inter-
associate official language and language for higher studies and
national communication.
The three-language formula was greatly emphasised by the National
Policy on Education (1968). Regarding the need for development of
regional languages, it observed, “The energetic development of Indian
languages and literature is a sine qua non for educational and cultural
development. Unless this is done, the creative energies of the people
will not be released, standards of education will not improve, knowl-
edge will not spread to the people, and the gulf between the intel-
ligentsia and masses will remain, if not widen further.” While Hindi
is to be developed as link language, Sanskrit’s unique contribution to
the cultural unity of the country should be remembered. It also said,
“Special emphasis needs to be paid on the study of English and other
international languages. World language is growing at a tremendous
pace, especially in science and technology. India must not only keep
up this growth but should also make her own significant contribution
to it. For this purpose, study of English deserves to be strengthened.”
Since education was then in State List, it was left to the States and
Union Territories to decide the length and stage of language contact.
The duration was 3, 6 and 10 years’. Determination of the status of first
language, and option to allow study of classical language (Sanskrit)
instead of Hindi were within the discretion of states. Peculiar conse-
quence of the liberalisation was that in Hindi belt there emerged a
two-language formula and for minorities whose mother tongue was
neither regional language nor Hindi it became a four-language for-
mula.’? Thus, diversity, confusion and experimentations have been the
hallmark of language learning. And the position of local environment
approach on language learning continues even after the Constitution
(Forty-second Amendment) Act, 1976, which shifted education into
Concurrent List. The local environment approach coupled with strong
feelings of regionalism is problematic because of its parochial char-
acter and ignoring the importance of the right parental choice and
minority right.
As a result, the language policy of the state on education is prone
to favour or disfavour the opportunities for mother tongue instruc-
tion. Imposition of dominant regional language as the sole medium
' Udaya Narayana Singh, citing Khubchandani, 1983 at p. 746. According to
Sarkaria Commission, “Unfortunately, the three-language formula has been observed
more in breach. Some states are following what is virtually two-language formula.
One state is imposing what is virtually four-language formula. We are of the view that
effective steps should be taken to implement the three-language formula uniformly in
all the states in the interests of the unity and integrity of the country.”
The constitutional scheme
ESE SE A Ee oe 321
of instruction has been experienced as problematic for the linguistic
minorities. Parental choice about medium of instruction in which the
child should learn has also been sometimes asserted to counter the
state policy. But, as the recent trends show, such choice is generally
the choice of language of wider communication viz. English or Hindi.
Often times, the state policy of regional language as medium of instruc-
tion or compulsion to learn regional language is countered by linguis-
tic minority’s right to establish educational institutions of their choice
which is employed to set-up English Medium schools. Emergence
of English Medium schools in large numbers and with commercial
sophistications, and greater focus on professional and technological
education both in urban and semi-urban places have changed the lan-
guage profile in education, and the linguistic minority educational
right is employed as a tool for this purpose. The concern for mother
tongue as medium of instruction is gaining back seat treatment. The
constitutional development is to be understood in the changed social
circumstance of language choice and language use in education.
7.3 The constitutional scheme
The constitutional scheme of linguistic educational rights has several

facets. Right to conserve one’s language, script and culture; right to
establish educational institutions; right to non-discrimination in mat-
ters relating to admission to educational institutions; right to receive
grants without discrimination; and state’s obligation to facilitate
mother tongue instruction at primary stage of education are the prom-
inent rights available to linguistic minorities regarding education of
children. The rights include both individual and collective rights, right
not to be interfered with, right not to be discriminated, and right to
have performance of state’s positive obligation.
Conservation of language and culture is a complex and continu-
ous process of manifestation and transmission of cultural traits, and
states,
nurturing of creative abilities. Article 29(1) of the Constitution
any
“Any section of the citizens residing in the territory of India or
shall
part thereof having distinct language, script or culture of its own
such sec-
have right to conserve the same.” The right is available to all
ctive of its
tions possessing distinct language, script or culture irrespe
ving culture
position as majority or minority, and its objective is preser
the langua ge they
and language.’ The term “of its own’ only means
or citizens belonging
use regularly, and it does not mean that persons
it. Thus, even though
to other religion or community should not use
on of India, Vol. D (S.C. Sarcar & Sons,

4 Durga Das Basu, Commentary on Constituti
Calcutta 1978).
322
i A a a UE eit =gsRights
DOE ERT Language Ton nes n
in Educatio
Sanskrit is learnt by Muslims, Christians or other communities, a com-

munity which speaks Sanskrit in day-to-day activities and religious
duties has Fundamental Right to conserve Sanskrit by establishing
educational and charitable trust for that purpose.”
Unlike conservation of material resources, which relies on strate-
gies of non-user and lesser user, conservation of language and religion
is done by more and more application. Language is capable of con-
stant growth as any living organism only with wider interaction. Its
enhanced use in science, business, technology, legal process and vari-
ous levels of learning equip it with better capability, and contributes to
its conservation and flourish. Because of close connection between life
of a thought and the life of language symbols of that thought through
which it gets expressed, conservation of language gathers support from
freedom of speech, expression, assembly, association, religion and
the right to establish and administer educational institutions of their
choice.”* It is because of such relations that in countries like America
where cultural and language rights are not constitutionally enumer-
ated, invoking of due process clause or freedom of speech is resorted
to. Sometimes equal protection clause is also reward fully employed.
In Jagdev Singh Sidhanti v. Pratap Singh Daulta’? the Supreme Court
observed, “Right to conserve the language of the citizens includes the
right to agitate for the protection of the language.” Establishing and
managing educational ane charitable trust for promotion of learning
of language is also a method of conservation of language."®
According to Article 30(1), “All minorities, whether based on reli-
gion or language, shall have the right to establish and administer edu-
cational institutions of their choice.” Regarding application of Article
30(1), it can be noticed that the right is claimable for purposes other
than protecting genuine linguistic interests. Although in the begin-
ning, the scope of right under Article 30(1) was confined to early levels
of education,? gradually it was extended to include higher education
and professional education also.” Presently, the status of linguistic
8 Bala Seva Educational and Charitable Trust v. Govt. of T.N., (1998) 1 MLJ 570 (Mad)
at p. 454.
'© For a discussion on these lines, see, P. Ishwara Bhat, Fundamental Rights: A Study of
their Interrelationship (Eastern Law House, Kolkata 2004) Ch. 12.
” AIR 1965 SC 183.
"8 Bala Seva Educational and Charitable Trust v. Govt. of T.N., (1998) 1 ML] 570 (Mad);
it
was held by the Madras High Court that running an Engineering College by a Sanskrit
pain community attracted application of Art. 30(1) in addition to its right under
rt. ;
'? Re, Kerala Education Bill, 1957, AIR 1955 SC 956.
* D.A.V. College v. State of Punjab, (1971) 2 SCC 185: AIR 1971 SC 1737, Ahmedabad
St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717: AIR 1974 SC 1389; A.P.
Christians Medical Educational Society v. Govt of A.P., (1986) 2 SCC 667: AIR
1986 SC 1480;
minority is a source of entitlement to establish and administer medi-
cal colleges, engineering colleges, business schools, etc. Right to admit
students from other linguistic communities is also considered as a part
of minority right on lines of “sprinkling presence of non-minorities”,"
but in practice without such limits due to commercialisation of pro-
fessional education. It is true that members of the concerned minor-
ity community get educational opportunities in all levels of education
without bargaining their position with the majority. In protecting their
economic and educational interests this has its own significance. But it
has no connection with the objective of protecting the linguistic inter-
est of the community. The Supreme Court’s approach, which is made
clear through a series of pronouncements, is categorically declining
to limit the scope of Article 30(1) by holding that its scope cannot be
confined to the objectives of conserving language, script and culture.”
Further, they need not abide by the reservation policy for the Scheduled
Castes and Scheduled Tribes in the matter of admission of children to
the educational institution as per the spirit of Article 15(5) inserted
by the Constitution (Ninety-third Amendment) Act, 2005.* As a result,
the discourse is centering on educational rights of linguistic minorities
rather than minority language educational right. The latter is confined
to the state’s duty under Article 350-A.
The learning and communicative processes involved in conserva-
tion of culture, language and script are reinforced by the constitu-
tional policy of mother tongue instruction contemplated in Article
350-A. According to Article 350-A, “It shall be endeavour of every
state and of every local authority within the state to provide adequate
facilities for instruction in the mother tongue at the primary stage of
education to children belonging to linguistic minority groups, and the
President may issue such direction to any state as he considers neces-
sary or proper for securing the provision of such facilities.” Although
Article 350-A is a special directive to the state, its function of strength-
ening the rights under Article 29(1) suggests about positive right of
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.

(1974) 1 SCG, 717; St
21 Ahmedabad St. Xavier’s College Society v. State of Gujarat,
1992 SC 1630. _
Stephen's College v. University of Delhi, (1992) 1 SCC 558: AIR
, AIR 1963 SC 540; A.P. Christians Medical
2 Sidhrajbhai Sabbaj v. State of Gujarat
2 SCC 667; T.M.A. Pai Foundation v. State of
Educational Society v. Govt. of A.P., (1986)
Karnataka, (2002) 8 SCC 481.
Article or in clause (g) of Clause (1)
% According to Art. 15(5), “Nothing in this the
from making any special provision, by law, for
of Art. 19 shall prevent the State
backward classes of citizens or for
advancement of any socially and educationally
r as such special provisions relate to
the Scheduled Castes or Scheduled Tribes insofa
including private educational institutions,
their admission to educational institutions
than the minority educational institution
whether aided or unaided by the State, other
referred to in Clause (1) of Art. 30.”
324 Language Rights in Education
having mother tongue instruction at the primary stage of education.

In addition to rights of the linguistic or religious minorities to establish
and administer educational institutions of their choice, which includes
right to establish mother tongue schools, State’s positive duty to impart
mother tongue instruction is prescribed. Generally, this obligation
is said to be existing only when the number of students speaking a
particular language is viable (minimum 15 in a class as per CBSE). In
Canada also, where parents of French or English speaking minorities
in any Province have constitutional right to have for their children
primary and secondary education in their mother tongue in the state-
maintained schools, the right can be claimed only when the number of
students is adequate.
On the nature and scope of Article 350-A, some comments need
to be offered. The origin of this provision is traceable to the recom-
mendation of State Reorganisation Commission. It said, “It seems to
us that linguistic minorities do not have the resources required to
establish and maintain their own educational institutions, particularly
in rural areas. In such cases, therefore, a positive duty should be cast
on the State to provide for facilities to the minorities for education in
mother tongue at the primary school stage.” It had suggested that
the power to issue directions under Article 347 would provide remedy
in deserving situation. It also approvingly referred to the resolution
of Provincial Education Ministers’ Conference, 1949 which had stated,
“The medium of instructio.: and examination in the junior basic stage
must be the mother tongue of the child and, where the mother tongue
is different from the regional or State language, arrangement for edu-
cation shall be made in the mother tongue by appointing at least one
teacher, provided that there are not less than 40 pupils speaking the
language in the whole school or 10 such pupils in a class. The mother
tongue shall be the language declared by the parent or guardian to be
the mother tongue.”
Article 350-A is basically a directive to the State imposing a duty
to endeavour to provide for mother tongue instruction. No doubt,
the corollary of this duty is a right on the part of linguistic minor-
ity, and it is not said that this directive is not enforceable in court of
law. But as the provision makes it clear, first administrative remedy
through President’s interference shall be sought. The President may
issue directions for enforcement of state’s duty. However, there can be
valid justifications for non-compliance with Article 350-A on account
of non-viability due to inadequate numbers. The criterion of viable
number cannot be regarded as unusual. Parallels for this can be found
in Section 23 of the Canadian Charter of Rights and Freedoms, 1982.
* Para 774 of State Reorganisation Committee Report, 1956.

Global policies on language in education
325
Whether Article 350-A imposes a duty upon parents to have their
children educated through mother tongue instruction is a question
to
be considered in the background of human rights jurisprudence and
judicially recognised concept of parental choice. Since there are clear
principles regarding parental choice in International Conventions
and judiciary has recognised the concept ever since Bombay Education
Society case*, in the absence of categorical provision to impose such
duty upon parents, it cannot be said that the right of parental choice
is lost. In case parents choose a medium of instruction other than
their mother tongue by anticipating “bright future” for their children
or occupational mobility, their freedoms under Articles 19 and 21 are
also involved there. The only basis for duty proposition on the part of
parent is that State’s duty to facilitate mother tongue instruction can
be performed only with necessary power, and that this power prevails
over the power addressees. But this is a difficult proposition at the face
of human rights dimensions of parental choice. Further, the expres-
sion “mother tongue” connoted language in which the child is most
familiar with.
7.4 Global policies on language in education

International human rights instruments have extensively provided
for protection of language rights in education. In view of the recent
decisions of the Supreme Court to the effect that wherever munici-
pal law is not inconsistent with the international human rights instru-
ments and opportunities are available for giving effect to international
human rights instruments, judiciary should give effect to them,”® these
principles are not mere standards but binding obligations. Article 26(3)
of the Universal Declaration of Human Rights states, “Parents have a
prior right to choose the kind of education that shall be given to their
children.” Reference to this provision was made in Islamic Academy of
Education case??. According to Article 27 of the International Covenant
on Civil and Political Rights, “In those states in which ethnic, religious
or linguistic minorities exist, persons belonging to such minorities
shall not be denied the right, in community with the other members
of their group, to enjoy their own culture, to profess and practise their
own religion, or to use their own language.” Article 4(3) of the UN
Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities, 1993, states, “States should take
2 State of Bombay v. Bombay Education Society, AIR 1954 SC 561. Ni ateairgs

2% Vishaka v. State of Rajasthan, (1997) 6 SCC 241; People’s Union for Civil Liberties
(PUCL) v. Union of India, (2003) 4 SCC 399.
SC
27” Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697: AIR 2003
3724 per Sinha, J.
326 Language Education
EG inIEEE
Rights BtERI
LT IT ee ION SE EE Ea
appropriate measures so that, wherever possible, persons belonging
to minorities may have adequate opportunities to learn their mother
tongue or to have instruction in their mother tongue.” Article 4(4)
states, “States should, wherever appropriate, take measures in the field
of education, in order to encourage knowledge of the history, traditions,
language and culture of the minorities existing within their territory.
Persons belonging to minorities should have adequate opportunities to
gain knowledge of the society as a whole.” In the UNESCO Convention
Against Discrimination in Education, the State parties agree [Article
5(0)] that “it is essential to recognise the right of members of national
minorities to carry on their own educational activities, including the
maintenance of schools and, depending on educational policy of each
State, the use or the teaching of their own language.” Article 30 of the
UN Convention on the Rights of the Child, 1989 provides, “In those
States in which ethnic, religious or linguistic minorities or persons of
indigenous origin exist, a child belonging to such a minority or who is
indigenous shall not be denied the right, in harmony with other mem-
bers of his or her group, to enjoy his or her own culture, to profess and
practise his or her own religion, or to use his or her own language.” As
Francis Capotorti observes, “The use of languages of minority groups
in the educational system is a crucial test for determining the abil-
ity of these groups to maintain and develop their own characteristics.
Language being an essential! element of culture, the capacity of minor-
ity group to survive as a cultural group is in jeopardy if no instruction
is given in its language.”8
The Karnataka High Court Judgment (2008)” refers to vast body of
policy statements in international instruments. The UNESCO Universal
Declaration on Cultural Diversity, 2001 encouraged mother tongue
and bilingual education at primary stage. The UNESCO Position
Paper, “Education in Multilingual World” (2003) said, “Instruction
in mother tongue is essential for initial instruction and literacy and
should be extended to as late a stage in education as possible.” The
UNICEF papers in international conferences in 1993, 1996, 1998 and
2001 consistently adhered to the policy that language instruction at the
beginning of one’s education should be mother tongue. The policy was
implemented in Hong Kong, Papua New Guinea, Kenya, Indonesia,
Europe and South America.
2 Francis Capotorti, Study on Rights of Persons Belonging to Ethnic, Religious and

Linguistic Minorities UN Document E/CN 1979; see also, Joseph P. Gramocki, “The
Protection of Language Rights in International Human Rights Law: A Proposed Draft
Declaration of Linguistic Rights” (1992) 32 Virginia Journal of International Law 515
at p. 547.
(2008) 4 Kar LJ 593. See infra, for discussion.
. In the United States of America, the issue of language right in educa-
tion is dealt by invoking due process clause or equal protection clause.
In Meyer v. Nebraska® the constitutionality of a Nebraska statute, which
made it misdemeanour to teach any language other than English prior
to High School, was in issue. The US Supreme Court considered the
teacher’s right to teach and parent's right to engage the teacher to
instruct their children in whatever language as an aspect of liberty
protected under the Fourteenth Amendment Due process clause,
which was, according to the Court, unreasonably encroached by the
impugned law. Thus, right of privacy and family autonomy in choos-
ing the language of instruction for child is elevated to constitutional
protection. The case was decided in 1923 when human rights jurispru-
dence about “parental choice” was not developed. If we look to mate-
rial facts of the case, under which light ratio decedendi of the case is to
be deciphered, it is clear that parent’s right to choose child’s language
of learning was based upon statement of facts relating to the linguis-
tic background of the family. In Pierce v. Society of the Sisters®' striking
down an Oregon statute requiring parents to send their children to
public schools the Supreme Court observed, “The child is not the mere
creature of the State; those who nurture him and direct his destiny
have the right, coupled with high duty, to recognise and prepare him
for additional obligation.” In Lau v. Nichols*, the Court through Equal
Protection clause dealt with the unfairness involved in state inaction
leading towards actual discrimination. Here, the Chinese-speaking
minority used to receive fewer benefits than the English-speaking
majority from the school district, which failed to establish affirma-
tive program to rectify the language deficiency of the minority. The
Court held the state failure as violating the equal protection clause and
ordered for affirmative action.
The US Congress enacted the Equal Educational Opportunities
Act in 1974, which not only prohibits the denial of equal educational
opportunity on grounds of race, colour, sex and national origin, but
also declares that such denial may arise from state’s failure to take
appropriate action to overcome language barrier that impede the
equal opportunities for learning. While Meyer represents remedial
role of the egalitarian model, its transformative role is explicit in Lau.
ional
In Yniguez3, the Federal Court had ruled that Arizona’s constitut
provision, which declared English as the official language of Arizona
and provided that all government officials and employees perform
*® (1923) 262 US 390.
31 (1925) 268 US 508.
|
2 (1974) 414 US 563. US cert. denie d
1217 (9'" ci, 1994)
e are v. Arizonans for Official English, 42 F 3d
20-12-1995.
governmental business only in English as violative of freedom of

speech guaranteed in the First Amendment. However, the Supreme
Court abstained from giving remedy as the issue had become moot.
Applying the Civil Rights Act of 1964, which prohibits discrimination
based on national origin, the English only policy of employers has
been attacked in some cases. The courts have reasoned that difference
in language and other cultural attributes may not be used as fulcrum
for discrimination and that cultural identity of certain minorities had
tied to the use of their mother tongue. Literacy tests for voting right,
which were deliberately used to exclude some linguistic groups from
access to participation in democracy, have also been tackled by using
the equality rule :
The Canadian experience and response about the issue of lan-
guage in education teach important lessons. The factual situation of
Anglophone minority in Quebec and Francophone minority in other
provinces has persuaded for appropriate policy on language in educa-
tion. The Royal Commission had stated:
“...if the majority language is the sole language of instruction in the
provincial schools, the survival of the minority as a linguistic group
is menaced. Almost by definition minority is exposed to the social
environment in which the majority language is always present. The
school must counterbalance this environment and must give priority to
the minority language if the mother tongue is to become an adequate
instrument of communicat.on.”
Section 93 of the Constitution Act, 1867, which prohibits provincial
legislatures from prejudicially affecting the rights and privileges of
denominational schools existing by law at the time of confederation,
could not act as effective protector of language rights in education
In order to correct the historical wrongs, Section 23 of the Canadian
Charter of Rights and Freedoms, 1982 employs the strategies of both
formal and substantial equality?” It confers upon citizens of Canada,
who are members of either Francophone or Anglophone minority
population of the province in which they reside, “the right to have
their children receive primary and secondary school instructions in
* Louisiana v. United States, 380 US 145 (1965); Trujillo v. Farrell, 503 F 2d 954.
* Book II at p. 8 of the Report of the Royal Commission on Bilingualism and
Biculturalism (1967-70).
© Ottawa Separate School Trustees v. Mackell, 1917 AC 62, where the Privy Council
held that Ontario had the power to require that English be the language of instruction
in hitherto French speaking Roman Catholic school since the Ontario law in 1867 had
not conferred legal right to instruction in French language nor did Roman Catholics
speak exclusively in French.
37 Peter W. Hogg, Constitutional Law of Canada (3rd Edn., Carswell,
Toronto 1992)
at pp. 1220-21; Joseph E. Magnet, Constitutional Law of Canada, Vol. II
(4th Edn., Bles
Editions, Cowansville 1989) at pp. 866-68.
the (minority) language of that province.” The right includes
the right
to have minority language instructions and minority language edu-
cational facilities provided out of public funds when the number of
beneficiary children sufficiently warrant such rights. It has been held
by courts that the number test should be applied on local basis and
should not be arbitrarily fixed for example as 25 for primary school
and 20 for secondary school2* The phrase “educational facilities” is so
interpreted that quality of education in the minority institution shall
not be inferior to those of majorities;? and that minorities have right
to participate in management or right to exclusive control on planning
and management of the school and in fit cases, right to independent
school board.*°
In identifying the beneficiaries of Section 23, most objective and rel-
evant criteria have been employed in order to make the right avail-
able only to the deserving persons. The three mandatory conditions to
be satisfied by the parents are: (i) possession of Canadian citizenship;
(ii) being a resident of a Canadian province where the concerned lan-
guage (either English or France) is minority language in that province;
(ii) parenthood of the child. In addition, one of the following linguistic
criteria shall be satisfied by the parent: (a) the first language learned
and still understood by the parent should be the minority language
(either English or France) of the province in which they reside; (b) par-
ents should have received their primary school instruction in Canada
in English or French and reside in a province where the concerned
language is minority language;*' (c) the language of instruction to at
least one child of the family was the minority language (either English
or France) in that province.
A conspicuous characteristic of the scheme is that by identifying all
and only those that have deep interest in getting education in minor-
ity language, and by focusing only on minority language education
and that too, up to secondary education, it has exhibited its purposive
and ameliorative character so that minority language education is part
and parcel of the minority socio-cultural fabric. By clearly defining
the scope of the right and the method of identifying its beneficiaries,
possibility of its use for improper purpose is ruled out. While it throws
primary burden upon the state, minority’s participation in managing
the minority educational institution is also accommodated through
10 DLR (4th) 491
38 Re, Education Act and Minority Language Educational Rights, (1984)
to number test
Ontario Court of Appeal; a sliding scale approach was adopted relating
i : erta, (1990) 1 SCR 342.
a ee V. De County Board of Education, (1986) 29 DLR (4th) 596.
cA
40 Mahe v. Alberta, (1990) 1 SCR 342. ssi
66a Quebe claw con fining
41 In AGof Quebec v. Protestant School Board, (1984) 2SCR
ion in Quebec as unconstitutional.
right only to those parents who had English educat
Rights in Education
330
Re SO ee ERO STITT Language
SS teh NOR GK
judicial interpretation. The only shortcoming of the Canadian model
is that it does not extend explicit guarantee of minority language edu-
cation to linguistic groups other than English and French. While there
are numerous indigenous languages and foreign languages, people
speaking them are in very less number.
Objective determination of linguistic identity of parents and chil-
dren for recognising entitlement to minority language education has
been the hallmark of European law also. With the growth of linguis-
tic nationalism and extension of human right protection to languages,
determining the scope of this right was a legal issue in some cases. In the
Belgian Linguistics case*, while determining the claim of Francophone
minorities to have minority language education to their children, the
European Court of Human Rights took into consideration objective ele-
ment of language planning in education and also the method of verifi-
cation of linguistic identity. Under the Belgian law parents requesting
for schooling were required to declare the maternal or usual language
of the child, and such declaration was to be statement of fact rather
than expression of wish. The bilingual families faced difficulty in
claiming the rights. Although the Court did not reach any conclusion
on this issue, the European Human Rights Commission rejected the
objections about statement of fact. The organic link between language
and philosophic and religious conviction was not clearly recognised
by the Court. In the Minoty Schools case (Rights of Minorities Upper
Silesia case) the Permanent Court of International Justice had decided
in 1928 that the method of determination of linguistic minority status
as laid down in Article 131 of the Minority Protection Convention was
rational. The provision laid down, “In order to determine the language
of a pupil or child, account shall be taken of the verbal or written state-
ment of the person legally responsible for the education of the child.
This statement may not be verified or disputed by the authorities.” In
contrast to the objective factors of parents’ statements, the region’s
determination of minority status and content of minority education
in the Groener case* is based on power/identity calculus. Underlying
these approaches is the alert concern that preservation of language
is striking at the heart of cultural identity, and continuing its revered
heritage allows it to grow by avoiding its fossilisation.
” 6 Eur. Ct.H.R. (ser. A) at 96 (1968).

nvaISee? Nathaniel Berman, “Nationalism and Legal Linguistic: The Teachings of
European Jurisprudence” (1992) 24 New York University Journal of International Law
and Politics 1515 at pp. 1530-34.
“ Rights of Minorities in Upper Silesia (Minority Schools) 1928, PCIJ (ser. A) No. 12
(Apr. 26).
Groener v. Minister for Education, 1989 ECR 3967, 3968; also see, Nathaniel Berman,
supra, n. 43 at pp. 1547-58.
Regional language as medium of instruction
e e Sol
Stripped off the benevolent concern for human dimension of Jan-
guage, how a determined annihilation of a subjugated community’
s
long-cherished language and forced imposition of dominant com-
munity’s language upon the inhabitants brings a cultural displace-
ment can be seen by perusing the Tibetan situation under the Chinese
regime ever since 1961. It should be stated with anguish that ignor-
ing the human right dimension involved in language right is a naked
onslaught on culture.
The overall global experience is to recognise right of parental choice,
not as an expression of absolute wish but only reflecting actual linguis-
tic identity; to respect right of linguistic community to have imparting
of instruction to its children in that language as a matter of state obli-
gation; and to protect them against political interferences and forced
assimilations.
7.5 Imposition of regional language as compulsory medium of

instruction
The propriety of state’s imposition of medium of instruction vis-a-vis
linguistic minority’s right came to be examined in various cases. In
State of Bombay v. Bombay Education Society**, the Governmental order
directing the English medium schools not to admit children other than
Anglo Indian or non-Asiatic origin was held to be violative of Article
29(2). In that context, while approvingly citing from American cases,
the Court was inclined to recognise the concept of parental choice. The
Court observed:
“Where however, a minority like Anglo-Indian Community, which is
based, inter alia, on religion and language, has the fundamental right
to conserve its language, script and culture under Article 29(1) and has
the right to establish and administer educational institutions of their
choice under Article 30(1), surely then there must be implicit in such
fundamental right the right to impart instruction in their own institu-
tions to the children of their own community in their own language. To
hold otherwise will be to deprive Articles 29(1) and 30(1) of the greater
part of their contents.”
Following this observation, the Supreme Court in Gujarat University
v. Krishna Ranganath Mudhokar’ invalidated Gujarat University’s rule
prescribing Gujarati or Hindi as the sole medium of instruction and
examination as violative of the rights of Anglo Indians. The Court also
held the Gujarat law as lacking legislative competence because the leg-
islative power on higher education was under Union List at that time.
The Full Bench of Gujarat High Court had observed,
46 ATR 1954 SC 561.
47 ATR 1963 SC 703.
a i
of
“the petitioner is entitled as a parent to direct the education
y
his son in the manner he considers best suited and to guide thereb
his future prospects. The State has no concern and we hope no right
to direct him to do so ina particular manner. That can only happen in
countries, which do not boast of democratic Constitutions. Though such
a right may not arise froma statute or contract, he is entitled and has the
liberty in law to educate his son in the manner he thinks best.”*°
Understood in the light of material facts of the case, the thrust of the
judgment was to allow Anglo Indians whose mother tongue is English
to have their natural atmosphere of learning in their mother tongue,
not in a regimented environment artificially created by the State.
Further, the case was relating to higher education rather than primary
education.
In D.AV. College, where the Government of Punjab compulsorily
affiliated some colleges to the Punjabi University which had pre-
scribed Punjabi in Gurmukhi script as the sole and exclusive medium
of instruction, the Supreme Court declared it as violative of the rights
of Arya Samajists to use their own script and language for instruction.
The Court observed, “While the University can prescribe Punjabi as a
medium of instruction it cannot prescribe it as the exclusive medium
nor compel affiliated Colleges established and administered by lin-
guistic or religious minorities or by a section of the citizens who wish
to conserve their language script and culture, to teach in Punjabi or take
examinations in that langage with Gurmukhi script. The University
Act having compulsorily affiliated these Colleges must of necessity
cater to their needs and allow them to administer their institutions in
their own way and impart instructions in the medium and write exam-
ination in their own script.” It was observed by the Supreme Court in
St. Xaviers College case, “It is for the minority to choose the medium of
instruction since the right to administer would also include the right
to choose courses to be conducted by the institution as well as the
medium in which the courses are to be taught.”*°
In order to make the development and conservation of language
effective, an honest performance of positive duty under Article 350-A
is contemplated. The levelling up policy of Article 350-A has an egali-
tarian ethos towards the linguistic minority. This is clear in Sahyadri
Education Trust case** where the Karnataka Government Code which
made Kannada language sole medium of instruction and denied per-
mission for English Medium Schools was nullified by the relying upon
Article 350-A. The Court observed:
** Shri Krishna v. Gujarat University, AIR 1962 Guj 88.
*® D.A.V. College v. State of Punjab, (1971) 2 SCC 261: AIR 1971 SC 1731.
* Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717.
*' Sahyadri Education Trust v. State of Karnataka, ILR (1988) Kant 2188.
Regional langua as medium of instruction
Roe Sgn seingeuptee ca «sens cea rr rrr 333
...Article 350-A protects the rights of linguistic minorities as regards
their medium of instruction at the primary stage of education. A com-
bined reading of these two provisions (Article 45 which directs towards
free and compulsory education upto the age of 14 years’ and Article
350-A) would indicate that the Constitution does not empower the state
government to thrust the language of the majority group as the medium
of instruction for the children belonging to linguistic minority groups
at the primary stage.>?
The Court considered that the policy decision of the government was
neither uniform nor based on objective considerations, and hence
violated right to equality under Article 14. Holding that running of
educational institutions involves exercise of freedom of business and
occupation under Article 19(1)(g), the Court viewed that imposition of
Kannada as the sole medium of instruction was not in the interests
of general public, and hence violated the said freedom. Going a step
ahead, it held the impugned order as violative of Article 19(1)(a) of the
constitution as the medium of instruction was one aspect of freedom
of speech and expression. Bopanna, J. for the Court observed, “...I do
not know of any law which can say that a student should express him-
self in a particular regional language and not in English if he has the
inclination to study the curriculum in English in addition to English as
the II or the III language as the case may be.”»? The Court also regarded
that the government could not regulate the policy regarding medium
of education by administrative order without legislative measure.
While the latter point has been disputed by the Divisional Bench of
the High Court in a different case, the core principle laid down in this
pronouncement holds good today also.
In State of Karnataka v. Noble Saint Education Society*+ a Division bench
of Karnataka High Court while upholding the right to establish pri-
mary and High Schools with medium of instruction as the choice of
the management or parents relied upon the ruling of Full Bench of
the Court and observed, “Having regard to the multiplicity of the lan-
guages spoken to and the need to have a link language, it cannot be
said that the desire of the parents to impart education to their children
in a well-known international language like English can be bypassed,
forgetting the realities of life.”
How a formalistic approach on Article 29(2) impinges the right
under Article 29(1) can be seen in Hindi Hitrakshak Samiti v. Union of
India’s. In this case a writ of mandamus was sought against the Central
Government and other bodies under it to hold the pre-medical and
2 Ibid, at p. 2205.
3 Ibid, at p. 2216.
4 (1993) 2 Kar LJ 19.
uw
§ (1990) 2 SCC 352.
334 Language.Rights in Education
i
pre-dental entrance tests in Hindi and other regional languages. It was
argued that the prevalent policy of conducting the entrance tests only
in English adversely affected the right under Article 29(2) because the
English Medium students gained advantage over their counterparts
who passed their qualifying examination with Hindi or regional lan-
guage as their medium of instruction. The Supreme Court declined to
hold that actions following from non-acceptance of any policy perspec-
tive amounted to direct and causal violation of the Fundamental Right.
According to the Court, a policy was to be moulded by the government
and not by judiciary, and a legal interest based on positive policy of
the government is not justiceable in the absence of such policy. Hence,
mere spes or expectation does not fall within the framework of a right.
Sabyasachi Mukherji, CJI observed for the Court:
“It is difficult to accept that holding entrance examination in any par-
ticular language, be it Hindi or regional language, amounts to denial
of admission on the ground of language. Every educational institution
has right to determine or set out its method of education and conditions
of examination and studies provided these do not directly or indirectly
have any causal connection with violation of the fundamental rights
guaranteed by the Constitution. It may be that Hindi or other regional
languages are more appropriate medium of imparting education to very
many and it may be appropriate and proper to hold the examinations,
entrance or otherwise, in any particular regional or Hindi language, or
it may be that Hindi or otk.r regional language because of development
of that language, is not yet appropriate medium to transmute or test the
knowledge or capacity that could be had in medical and dental disci-
plines. It is a matter of formulation of policy by the State or educational
authorities in-charge of any particular situation. Where the existence of
a fundamental right has to be established by acceptance of a particular
policy or a course of action for which there is no legal compulsion or
statutory imperative, and on which there are divergent. views, the same
cannot be sought to be enforced by Article 32 of the Constitution. Article
32 of the Constitution cannot be a means to indicate policy preference.**
From the perspective of equality of language rights, following com-
ments need to be offered. Firstly, differentiation between a policy-based
interest and a principle-based right in this sphere is untenable and mis-
leading. Language is an immutable personal characteristic of human
being and any disadvantage flowing from this is hard to be withstood.
Hence, a pertinent question would necessarily arise: In substance, is
there any difference between a state action which shuts doors on a
linguistic community on ground of language and a state action which
says, “I will conduct Entrance Test only in English medium but I will
allow students of all languages to write the Entrance Test in English?”
*° Ibid, at p. 620.
Regional language as medium of instruction 335
ee
Itis submitted, equal disability for all the indigenous languages is no
justification for inflicting discrimination between English Medium
and non-English Medium students. The English Medium factor oper-
ates advantageously to some students and disadvantageously to oth-
ers because of its relation with communicative skill in entrance tests
if not with knowledge system as such. Hence the policy is inherently
discriminatory. The question, are the non-English Medium students
essentially similar to the English Medium students in perceptive and
communicative capability in English is a relevant and the right ques-
tion to be asked. The imperative of non-discrimination in substantive
matters should sensitise and mandate state policies. This is a legitimate
expectation on the part of candidates who have similar knowledge sys-
tem but dissimilar medium for communication. Hence, when a right
pre-supposes an overt state act or policy for its meaningful existence
to say that policy decides the scope of right is wrong but the right com
pelling a favourable policy is only right. Secondly, when the central
focus of the entrance test is to comparatively evaluate the extent of
student’s knowledge of the subject, the linguistic impediment or push
created by external factor like medium of examination creates errors
in assessment. This problem can be overcome only by multilingual
medium of examination, which, albeit some initial difficulty, is both
practicable and fair.
The policy of Liberalisation, Privatisation and Globalisation, initi-
ated in 1990s had favoured acceptance of English as the Language of
Wider Communication in the educational sector. The boom in compu-
ter education and rise of information technology along with increased
trade in goods and services owing to the influence of WTO resulted
in increase in the number of children studying in English medium
schools. As a counter hegemony to this development, some of the lin-
guistic states (like States of Tamil Nadu and Karnataka) opted resilience
by imposition of regional language or mother tongue as the medium
of instruction. Some observations of the Supreme Court about mother
tongue instruction under Article 350-A in English Medium Students
Parents Assn. case, although not relevant for adjudication of that case,
had rekindled the policy of imposing regional language or mother
tongue as the medium of instruction at the level of primary education.
the
The Government of Tamil Nadu attempted at this after seeking
Itpassed
opinion of an expert committee headed by Justice S. Mohan.
Indian and
the following order: that in all schools, other than Anglo
tongue shall be
CBSE schools, from Classes 1 to 5 Tamil or mother
schools or aided schools
the medium of instruction; that in all state
that the change
Tamil or mother tongue shall be the first language; and
a period of three years’,
over to Tamil shall be completed within
Language Rightsinin Education
336 e ic e atts
n
i
ation schools
that Tamil shall be the medium of instruction in Matricul
from 6th standard onwards.
as, the
In T.N. Tamil & English Schools Assn. v. State of T.N.%, Madr
Madras
government order was challenged before the Full Bench of
, and
High Court as violating Articles 14, 19, 21, 26, 29, 30 and 350-A
s
abridging the principles of rule of law and international human right
us
norms. The Court gave an elaborate judgment dealing with vario
issues. Firstly, the Court found the differentiation between Anglo
Indian or CBSE schools where English medium is allowed for more
than two lakh students and Matriculation schools where it is prohib-
ited, as unreasonable and violating Article 14. There was also non-
compliance with the legitimate expectations of linguistic minorities
and the educational institutions.
Secondly, the Court identified various provisions of International
Conventions and Declarations and Apex Court judgments as provid-
ing basis for parent's right of choice about the type of education to be
imparted to their children. In the background of post-Vishaka develop-
ment the need to introduce international human rights principles in
situations of law’s silence was noted by the Court. The reference made
by the Supreme Court in St. Xavier’, about parental right in educa-
tion was relied upon. The observations of the Supreme Court in Unni
Krishnan? to the effect that a true democracy contemplated universal
education where people understand what is good for them and the
nation, and in R. Rajagopa®™ to the effect that right to privacy included
child bearing and education were also approvingly referred to. In the
absence of a just and reasonable legal procedure for the purpose of
Article 21, the Court was not prepared to tolerate regulation of parental
right in education. Support for parental right was gathered also from
the following factors: (i) desire of the parents to go to other states or
abroad, in which case English medium education of the child is likely
to overcome the problem of adaptation; (ii) desire to equip the child to
compete for getting access to professional education, the entrance test
for which is conducted in English; (ii) to meet a situation arising from
differences of language between the mother and father of the child or
a situation of single parent’s custody due to divorce or other types of
severance of relationship; (iv) search of career opportunities outside
the state, English language education is most likely to open avenues.
In brief, right to education as a fundamental right includes the right to
*” (2000) 1 MLJ 577.
Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717.
Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645: AIR 1993 SC 2178.
R. Rajagopal v. State of T.N., (1994) 6 SCC 632: AIR 1995 SC 264, where it was
observed, “A citizen has a right to safeguard the privacy of his own, his family, marriage,
procreation, motherhood, child bearing and education among other matters.”
. choose the medium of instruction as well, and it can be exercised by
parents on behalf of their children. The Court observed, “Certainly, it
cannot be said that the nation’s image and dignity will be affected, as
the language English has already been accepted by this nation as an
“associate language”. No one can claim to know better than the parents
about the child, to decide, as to what the child requires in the sphere of
education and such a decision they take keeping their duty in mind to
shape the career and destiny of their child.”
Thirdly, since the choice of medium of instruction is a component
of the right to establish and administer educational institutions of the
choice of linguistic minority under Article 30(1), the government order
was taking away the right of minorities in the guise of introducing
Tamil/mother tongue as the medium of instruction. The Court did not
agree with the State’s contention that compulsion to educate the child
in mother tongue at the primary stage, which was natural and healthy
educational process, was essential to attain excellence in educational
standard.
Fourthly, the justifications based on Article 350-A in support of the
government order were illusory according to the Court. The court
perused the statistics on student population from different language
groups in various schools in rural areas, and foresaw the consequences
like compulsion upon linguistic minorities to undergo Tamil medium
education because of inability of schools to provide facilities of mother
tongue instruction for all linguistic minorities. The escape from this
liability on account of inadequate number of minority students or for
reasons of non-viability puts the directive under Article 350-A into a
situation of inefficacy.
Fifthly, the exercise of executive power in issuing the government
order was vitiated by the following factors: (a) failure to implement
human right norm on parental right in education; (b) omission to con-
sider relevant factors such as diversity of linguistic communities and
impossibility of facilitating mother tongue instructions for all; (17)
influence of irrelevant considerations or belief that such policy would
protect culture and improve the standard of education.
It is submitted, many of the reasons given in support of nullifica-
tion of government order seem to be logical but not fully convincing.
They might be based on realities of educational world, and quite prag-
matic too but not ideal. The High Court’s reference to increased popu-
lation, role of private educational institutions and the need to cope
up with the present technological challenges persuaded it to go for
liberal construction of fundamental rights to “cater to the needs of the
changing society”. It appears, social response to globalisation’s impact
MLJ 577 at p. 612.
61 TN. Tamil & English Schools Assn. v. State of T.N., (2000) 1
338 Language. Rights in Education
F
Ae E
Darwin, who had
«s reflected in the Court's extraction from Charles
fit to survive. It is not
said, “the future will always be for those most
ligent, but
the strongest of the species that survive; nor the most intel
the one most responsive to change.”
of
The unconvincing part of the judgment is the Court’s analysis
of lack
“parental right of choice”, which is highly problematic because
der the objec-
of parameters about choice, and court’s failure to consi
tive of the right and international approach to the same. As discussed
earlier, in the context of mother tongue instruction, “choice” must
reflect statement of fact rather than expression of a wish. Since the
Minority School case proposition had inspired the principle in Universal
Declaration of Human Rights, the question “choice for what?” becomes
relevant in a discourse on conservation of language right. To say that
market forces, instead of cultural factors, should decide the “choice” is
to take away the right from its true context, and make it barter for com-
mercial gain. This, actually, belittles the glorious content and signifi-
cance of the right in the name of “catering to the needs of the changing
society”. “Choice” is meant for intimating linguistic identity, and for
projecting the cultural environment in which the child should learn
with ease. State’s constitutional obligation to impart mother tongue
instruction at the level of primary education implies that it has power
to perform its duty. This makes it legitimate role player of the region
according to the best interests of children as well as of local culture.
Even though the question of medium was not relevant for the decision
in English Medium Students Parents Assn. case the Supreme Court's dicta
on mother tongue instruction was logical interpretation of Article 350-
A, and hence could have been considered as governing the matter of
medium of instruction at the primary stage (1st to 4th standard) irre-
spective of the scheme whether it is CBSE or a State propounded one.
It.is true that fast spread of computer technology to all walks of life
had caused an apprehension that the advanced languages of the world
using the computer will grow to new heights at the cost of local or
developing languages, just like bigger fish swallow the smaller ones.”
Initially, there was sudden slump in the use of Indian languages on
the advent of computer because of lack of Indian language application
software, uniform Indian language keyboard, adequate Indian script
fonts and non-availability of trained staff. Since English was the native
language of speech community that developed computer technology,
it was largely relied upon in late 1980s and early 1990s. But soon, tech-
nology was internalised and came to the service of the people and
not vice versa. This is how, it should be. While China and Indonesia
* Suraj Bhan Singh, “Language Interface of Information Technology”, Vol. XLIII.

The Administrator (1998) at p. 53.
Regional
Pes Sanaalanguag e as
ea yaa medium of instruction
win aman Rac ai rrr 339
developed their respective languages (Chinese and Bhasha Indonesia)
through use of scientific technology and extensive and prompt trans-
lation of literature (both science and humanities) available in English
and other languages into their languages overcoming the problem of
linguistic diversity within the country, similar development in the
sphere of Indian languages is yet to take place. Moulding of language
policy in education should be based upon realistic appreciation of
society-technology interface and the endless potentiality of language
interface of Information Technology. Equipping the native languages
with computer technology ability through standardisation and mod-
ernisation of language would remedy the blind flocking into English
schools. .
Like Tamil Nadu, Karnataka Government also positively responded
to the obiter dicta in the English Medium Students Parents Assn. case
owing to the influence of the judgment and public opinion created
by educationists and intelligentsia. The Public Education Department
issued an order providing that all the primary schools established
after 1994 were to impart education only in Kannada medium. The
order was challenged in Karnataka High Court, and its operation was
stayed by the Court pending the final disposal of the case. In 2006,
after vacation of the stay, the Department took steps to effectuate its
earlier order by sending circulars to all the schools established after
1994. After investigation, in September 2006, it was found that as many
as 2215 schools which had obtained permission by giving undertaking
that they would follow the language policy of the State and impart
education in Kannada medium, had violated the language policy and
breached their own undertaking. The Department abstained from
interfering in the middle of the academic year. In February 2007 a sub-
committee of the Cabinet offered a plan for gradual shift from English
medium to Kannada medium in a period of four years subject to pay-
ment of penalty ranging from Rs 25,000 to Rs 1 lakh depending upon
its location in rural, urban and cosmopolitan area. This self-option
scheme was challenged before the High court. The Court asked the
managements to file affidavit about the position of medium of instruc-
tion in their schools. On 1 June 2007 the Court revoked the recogni-
tion of 400 schools whose management had not filed affidavit about
medium of instruction. In addition to the issues involved in Tamil Nadu
with
case, which are discussed above, the factor of non-compliance
their own undertakings given for the purpose of getting recognition
the doctrine of
is also involved in Karnataka case. It is submitted, since
disability
waiver of fundamental right is not recognised in India, the
is sus-
arising from breach of an undertaking, whose constitutionality
that in all Kannada
pect, is not real. Another noticeable development is
340 Language.Rights in Education
I at a a a a E E
introduced
medium schools study of English as a language has been
in 2007 beginning from 1st standard.
ment in
A Full Bench of the Karnataka High Court rendered its judg
a Order, 1994
July 2008 on the constitutional validity of the Karnatak
taka
in Associated Management of Primary and Secondary Schools in Karna
v. State of Karnataka®. The Court upheld the government policy to have
mother tongue or regional language as the medium of instruction at
the primary level as valid in the case of schools run or aided by the
State. But the government policy compelling children studying in
other Government recognised schools to have primary education only
in the mother tongue or the regional language was held as violative
of Articles 19(1)(g), 26 and 30 of the Constitution. The Court reasoned,
“The right to choose a medium of instruction is implicit in the right to
education. It is a fundamental right of the parent and child to choose
the medium of instruction even in primary school.” The Court also
traced the right to choose a medium of instruction in freedom of speech
and expression [Articles 19(1)(g)], right to carry any occupation [Article
19(1)(9)], rights of religious denominations to establish charitable insti-
tutions (Article 26) and rights of all minorities, religious or linguistic,
to establish educational institutions of their choice [Article 30(1)]. Its
prominent approach was “Choice of medium of instruction should be
left to the parents and children.” N. Kumar, J. gave an elaborate judg-
ment touching upon the hi<torical, educational and social dimensions
of the language policy in education, in addition to surveying Indian
decisional law. It is indeed a thought provoking judgment.
But it is submitted with respect, the reasoning about the content of
right to choose medium of instruction, like that in the Madras High
Court judgment, is superficial. While provisions of International
Human Rights instruments were referred to, a perusal of the way in
which parental right of choice is understood in other parts of the globe
especially Europe and Canada would have put the scope of right to
choose medium of instruction at primary stage on right perspective.
The point that “choice” is not an open-ended word with unlimited ave-
nues is made crystal clear in international human rights jurisprudence.
Choice is based on state of facts and related to the cultural environ-
ment of the family rather than unrelated expression of wish, according
to the European Court of Human Rights. In tracing an unnamed right
from a named right, which has been extensively done by the Supreme
Court in great number of cases, a cardinal principle followed is that
the newly emanated right keeps its link with the named right from
* (2008) 4 Kant LJ 593 (FB) Cyriac Joseph CJ, Mrs Manjula Chellur and N. Kumar,
Regional
Sls silcacslangu age
semicapmaaeeeas se
medium of instruction
I aa 341
which it is carved out. The level of water could hardly rise above
the
source. All the five sources of “right to choose medium of instruc-
tion” viz. Articles 19(1)(a@), 19(1)(g), 21, 21-A, 26 and 30(1) referred in
the judgment have their own impact upon the content of this right. It
is essential to examine whether the analysis is on appropriate lines. -
Regarding Article 21-A the Learned Judge views that the said right has
to be given full effect, as the Constitution has not prescribed any fet-
ters on the exercise of the said right. According to him, it is to be read
with freedom of speech and expression, one of whose specie is right
to information, in turn, whose sub specie is medium of instruction of
one’s choice. In the process of deriving a new right from the derived
right, the Learned Judge generalises,
“The medium of acquiring knowledge or information should be choice
of the person acquiring the knowledge. In what language the instruc-
tions are to be taken or imparted should be the choice of the student or
the person imparting education.”
It is submitted, this line of reasoning needs to be re-examined. Giving
full effect to Article 21-A is for the purpose of compulsory primary edu-
cation, and not for the purpose of making it unregulated right. State’s
power of regulation is not lost with incorporation of Article 21-A. Right
to information gives access to data in the form actually available and
understandable in the information world. To introduce the element of
medium of language to this derived right is to throw burden upon the
information provider to translate it into the language of seeker’s choice.
Just like individual has no right to understand court proceeding in the
language of his choice by asking that court’s language should be in
the language he suggests, but has only right to be understood by the
court through the help of translator, in the context of learning proc-
ess also, linking the medium of instruction to information is unusual
and not supported in international human rights jurisprudence. In
a multilingual world, it is a difficult proposition also. Hence, when
right to medium of information is not inevitable component of right
to information, reading Article 19(1)(@) along with 21-A has the only
consequence of infusing right to information sans right to medium.
Further, when such choice of the parent is artificial and cumbersome,
to say that state has no power of reasonable regulation strains logic.
In the context of child studying in Standards 1 to 4, it is established
through reports of experts in education and opinions of great person-
in
alities, and experienced by the general public that learning process
Interrelationship (Eastern
64 See, P. Ishwara Bhat, Fundamental Rights: A Study of their
. :
Law House, Kolkata 2004) Ch. 8.
l, AIR 1962 SC 171; T.K.
65 All India Bank Employees Assn. v. National Industrial Tribuna
SCC (L&S) 970.
Rangarajan v. Govt. of T.N., (2003) 6 SCC 581: 2003
ion
Educat*
Rights intyener
342
ig are ee Os nse aegeieee
Langua a
the initial stage would be natural, smooth and easy for the child if the
medium of instruction during that period is in mother tongue or the
regional language. A period of four years for gradual transition for
entry into English medium, if the child or parent so wishes, would
free the learning process from unnecessary burden.
In Paragraphs 125 and 135 the perspective of parental right is well
laid with a convincing reasoning. However, the observation, “If the
Government has no power and competence to impose mother tongue
as the medium of instructions on the students at higher level, equally
it has no power to impose its will even in respect of primary educa-
tion, merely because the experts opine that the mother tongue is best
suited for child’s education at primary level” needs rethinking as the
situation of child at the tender age is different from that of the student
at higher levels of education. So long as state’s policy is sincerely based
on expert opinion rather than hidden agenda of linguistic chauvinism,
the proposition that state knows better than parent is appropriate, and
insistence on mother tongue instruction for a period of four years’ will
not be unreasonable interference with parental choice.
Regarding Articles 19(1)(g) and 26 as the basis for right to medium
of instruction some comments need to be offered. The former is relat-
ing to freedom of occupation, in pursuance of which educational insti-
tutions could be established. This is a right claimed by provider of
education. For successful conducting of occupation there should be
sufficient opportunities subject to reasonable restrictions in the inter-
ests of general public. Since educational occupation is mandated to
be free from commercialisation, academic excellence in the course of
educational service gains a greater focus. As a period of four years’ of
mother tongue instruction is actually adding to the cause of effective
learning as viewed by the educational experts, the element of medium
of instruction based on occupational freedom cannot be pressed as
a component of occupational freedom. Article 26 guarantees right to
establish charitable institutions, which include educational institutions.
Charity is for the poor and the needy, and is actually helping through
distinct religious or cultural resource or background. To accommo-
date arguments for English medium schools even at Standards 1 to 4
in charitable institutions is to go far from the purposive character of
charitable institutions, and not really helping the poor as the children
in such families are not generally given adequate domestic support for
learning in alien tongue.
About Article 30(1) as the basis for right to choose medium of
instruction, discussion is made in Paragraphs 93 to 95 of the judgment.
There is an extensive reference to Apex Court’s judgment in T.M.A.
Regional language as medium of instruction 343
Pai Foundation case® wherein it was observed, “The right under Article
30(1) is not so absolute as to prevent the Government from making any
Regulation whatever. Any regulation framed in the national interest
must necessarily apply to all educational institutions whether run by
the majority or the minority...The regulation must satisfy the dual test,
the test of reasonableness and the test that is regulative of the edu-
cational character of the institution and is conclusive of making the
institution an effective vehicle of education for the minority commu-
nity or other persons who resort to it.” While the terms “educational
institutions of their choice” have been given wide connotation without
connecting to Article 29(1), the very content of choice is also amenable
to the state regulation subject to the scrutiny of the above dual test.
Applying the dual test to the circumstance of the case, which was not
clearly done in the High Court judgment, it is possible to say that both
the requirements are satisfied because of the following reasons: (i) the
regulation is only regarding children in 1st to 4th standards; (ii) the
purpose of regulation is to make the learning process effective, simple
and easy; (ii) the regulation is based on recommendation of experts
in education and supported by analogies in international experiences;
and (iv) the Supreme Court’s dicta is persuasive for such policy.
On the above counts, it can be said that identification of the lim-
ited scope of right to choose medium of instruction is not convincingly
done by the Learned Judge. After a thorough discussion of the views
of educationists, public policy leaders, national and international
committees on language policy at primary education and state prac-
tices in other jurisdiction by extensive reference to valuable sources
the Learned Judge arrived at a conclusion, “Therefore, there is no
two opinion worldwide regarding the utility and importance of the
mother tongue being the medium of instruction at the primary level
of education.””” He also viewed that many states in India have intro-
duced mother tongue as medium of instruction, and that for continu-
ing as a living language in the struggle to survive against onslaughts
of English language it is very essential and urgent that they are taught
and used as medium of instruction at primary level. Having said cate-
gorically in this manner, was there overriding reason to ignore it in the
background of “right to choose medium of instruction” whose basis
and scope are limited as discussed above? The Learned Judge tries to
assuage the feelings of Kannadigas by referring to glorious literature
developed in Kannada and open-minded approach to the exposure
improv-
to the influence of English language, and gives a sermon for
ing the status of Kannada by encouraging translation and subsidis-
SC 355.
Karnataka, (2002) 8 SCC 481: AIR 2003
6 T M.A. Pai Foundation v. State of
67 (2008) 4 Kar LJ 593, para 41.
344 Language Rights Education
oS in REI
ic a mE OO ITI EEE NS eh
ing publication. It is to be remembered that the great literary figures
of 20th century whom the Learned Judge referred to, who enriched
Kannada literature by exposing themselves to the influence of English
literature, were products of Kannada medium schools. The Learned
Judge dismisses the views of Gandhi, Tagore and Aurobindo as only
emotional after having agreed that it is part of the world view on the
imperative of mother tongue instruction at primary stage.
The concern for quality education to accelerate the pace of national
development in the context of Liberalisation, Privatisation and
Globalisation has been expressed by the Learned Judge when he
observed, “On the quality and number of persons coming out of
our schools and colleges depend our success in the great enterprise
of national reconstruction whose principal objective is to raise the
standard of living of people.” Since good quality regional language
medium schools can meaningfully contribute to this cause, state efforts
towards this direction are necessitated.
The matter is in appeal before the Supreme Court. While judicial
inclination to exclude arbitrary policy of imposing regional language
as the exclusive medium of instruction at higher stages of learning
is clear, the constitutional character of regulation requiring mother
tongue or regional language as a medium of instruction, which had
been favoured in a dictum of the Supreme Court in EMSPA case, is now
eclipsed. Looking to the wezld view on the matter and understanding
the limited character of right to choose medium of instruction a bal-
anced approach of keeping such requirement from 1st to 4th standard
and allowing continuance of English medium schools after 4th stand-
ard will be appropriate. The whole development exhibits intricacies
in the matter of language planning in the context of globalisation; the
interface between educational law and social transformation, and cul-
ture and modern education; and the difficulties of swimming against
silent majority.
7.6 Preferential first language policy and compulsory regional

language policy
The policy of compelling the children to learn regional language as
one of the compulsory subjects at various levels of schooling was
agitated upon when on the basis of Gokak Committee Report, the
Government of Karnataka issued a government order. In General Secy,.,
Linguistic Minorities Protection Committee v. State of Karnataka® consti-
tutionality of the government order which made study of Kannada
% [bid, para 1.
* ILR (1989) Kar 457 (FB).
Preferential first and regional language policy 345
e eee e
language compulsory at primary stage of education and the sole First
Language at the secondary level was in issue before the Full Bench of
the Karnataka High Court. The majority judgment was rendered by
Rama Jois and Rajendra Babu, JJ., and H.G. Balakrishna, J. gave a dis-
sent. The majority referred to the reports of Resolution of Provincial
Education Ministers’ Conference, State Reorganisation Commission,
the Central Advisory Board of Education, Ministerial Committee
on Southern Zonal Council, Education Commission (headed by D.S.
Kothari) to the effect that instructions in the primary stage of educa-
tion shall be in the mother tongue of the child and that there shall be
learning of more than one language at higher levels. But the difficulty
was about compelling the children to learn official language as the
First language, which meant discrimination amidst Indian languages.
The Court noted that choice about learning of language involved per-
sonal aptitude of the child and parent (since all languages have their
own levels of literary attainments) and occupational mobility (to take
up employment or business in other states). Since in-house learning
and getting requisite language qualification and skill in official lan-
guage after entry into public employment was contemplated in Service
Rules, learning Kannada as the First language had no rational nexus
with the policy of promoting official language of the state. Rama Jois,
J. observed for the Court:
“Having regard to the right flowing from Article 14 of the Constitu-
tion, a student/citizen has every right to claim equality in the matter of
selection of and equal protection in respect of his mother tongue or the
language of his choice as the First language in the high schools if facil-
ity for studying that language has been made available in the school
concerned, having regard to the sufficiency of the number of students.
There is no rational basis for restricting the choice of the first language.
Any restriction on the choice would be arbitrary and discriminatory as
it denies an equal opportunity to an individual to fulfil his aspiration
or desire to study the language of his choice as the First language and
through it to develop his personality. Therefore, any provision made by
a state which compels students to study official language alone as the
First language would be a violation of the injunction incorporated in
Article 14 of the Constitution.”
The interests of children whose mother tongue is not Kannada, but
who happen to reside in Karnataka owing to their parent's employment
he
either temporarily or for long duration will be adversely affected,
reasoned. The First Language policy had also retarded the competence
of the linguistic minority to conserve their language. Accordingly, the
Court (2:1) decided:
” Ibid, para 38 at p. 535.

346 Language Rights Education
AEN inIT
i IO ITE iL SENS BIE
(1) The government order insofar it relates to the making of study

of Kannada as a compulsory subject to children belonging to
linguistic minority groups from the first year of the Primary
School and compelling the Primary Schools established by
Linguistic Minorities to introduce it as a compulsory subject
from the first year of the Primary School and also in so far it
compels the students joining High Schools to take Kannada
as the sole First language and compelling the High Schools
- established by linguistic minorities to introduce Kannada as
the sole First language in the Secondary Schools, is violative
of Articles 29(1) and 30(1) of the Constitution.
(2) The governmentorderinso far it relates to the making of study
of Kannada as a compulsory subject to children belonging to
linguistic minority groups from the first year of the Primary
School and compelling the Primary Schools established by
linguistic minorities to introduce it as a compulsory subject
from the first year of the Primary School and also in so far it
compels the students joining High Schools to take Kannada
as the sole First language and compelling the High Schools
established by linguistic minorities to introduce Kannada as
the sole First language in the Secondary Schools, is violative
of the pledge of equality guaranteed under Article 14 of the
Constitution.
(3) The Government shall, however be at liberty to introduce
Kannada as one of the two languages either as mother tongue
or in addition to mother tongue as part of the general pattern
of primary education; and to make study of Kannada com-
pulsory as one of the three languages for study in secondary
schools.
The judgment elaborately discussed the case law and relevant litera-
ture regarding protection of minority and maintenance of national
unity. The Court regarded that in view of the positive duty of the state
to provide instruction in respective mother tongue, the facts of the
case showed discrimination between children whose mother tongue
was the official language and those whose mother tongue was not.
However, the Court was conscious about the State Reorganisation
Commission’s observation to keep the minority right at low key in the
light of national unity. The SRC had said, “We realise that overem-
phasis on the rights of minorities and too many special safeguards for
them would tend to keep the minority consciousness alive and might
thereby hamper the growth of a common nationhood.” The Court
noticed the falsity of claim made by the Christian school of Belgaum
that the mother tongue of Indian Christians in Belgaum was English
Preferential first and regional language policy
a 347
and that they were entitled to run English medium schools. A Divisi
on
Bench of Karnataka High Court reiterated the findings of the Full
Bench in disposing some of the writ petitions in 1989.
In response to the judgment and to comply with suggestions made
thereunder the Government of Karnataka laid down its language
policy in the following manner: From 1st standard to 4th standard,
where it is expected that mother tongue will normally be the medium
of instruction, only one language from Appendix I will be the com-
pulsory subject of study. From 3rd standard onwards Kannada will be
an optional subject for non-Kannada speaking students. This will be
taught on a purely voluntary basis and it will not be at the cost of any
other instruction imparted in the school or any other school activity in
which all school children participate. There will be no examination at
the end of the year in Kannada language. From 5th standard onwards,
where, in the normal course Second language is introduced, the child
has to study a second language selected from Appendix I, which will
be other than the First language, subject to the condition that the child
who has not taken Kannada as the First language will have to take
Kannada as the second language. From 5th standard onwards provi-
sion will be made for the study of the Third language which will be
other than language studied by the student as First and Second lan-
guage to be chosen from the list given in Appendix II.
The proposed language policy of the Government was challenged
before the Supreme Court in English Medium Students Parents Assn. v.
State of Karnataka7'. In this landmark judgment, the Court found the
Karnataka language education order as not problematic as there was
no compulsion to study Kannada as the sole First language but instead
to study it as one of the compulsory subjects with lot of concessions and
facilities. Since the matter before the court was appeal from Karnataka
High Court’s order on First language issue, this finding that it is not
violative of Articles 29 and 30 becomes its major premise. The Court
also emphasised the policy underlying Article 350-A by reference to
historical and other data, found no coercive measure upon the minor-
ity and recognised the thrust of governmental policy in promoting
mother tongue instruction. It declined to interfere with the policy
choice made by the government and reiterated the approach in Hindi
Hitrakshak Samiti case’. But the case is an authority for the proposition
that instead of an authoritarian sole First language policy, the policy
of compulsory regional language without stings of preferences and
disadvantages was appropriate.
71 (1994) 1 SCC 550.

2 Hindi Hitrakshak Samiti v. Union of India, (1990) 2 SCC 352.
See
Me.
t
The Karnataka Government issued government order to implemen
the
the language policy, which got clearance from the Apex Court in
e
EMSPS case. Encouraged by the Court’s observation on mother tongu
instruction, stoppage of permission to new English Medium School
tion is
was also mooted. As discussed earlier, another round of litiga
continuing. Even during the days of Gokak Committee Report, upon
whose basis the impugned language policy had been framed, the dif-
ficulty in replacing English schools had been experienced. The Report
had observed, “The excessive growth of English medium schools in
the post-independence Karnataka is a special feature. The citizens
have welcomed this manifestation with the intention that their chil-
dren may learn good English. We cannot but say that ignorance is at
the root of this.” The Full’Bench of the High Court in LMPC referred to
this finding and observed, “What Kannada finds it difficult to replace
is the English language, which had been adopted as official language
during the British period. There is a craze for English language which
is continuing unabated and even increasing...” The economic power
attributed to knowledge of English is one of the side effects of globali-
sation, which needs to be countervailed by local culture’s assertion.
In Santosh Kumar v. Secy., Ministry of Human Resources Development”
the policy of Central Board of Secondary Education in denying Sanskrit
a status of optional language for study at secondary education was
regarded by the Supreme Court as violative of Fundamental Right.
The Court issued directioiis to CBSE to include Sanskrit in the er
optional languages, rejecting the argument that inclusion of Sanskrit
without inclusion of Arabic, Persian or German languages would vio-
late secularism. Hansaria, J. for the Court observed, “So far as ‘we the
people of India’ are concerned, they have always held in high esteem
the cultural heritage of this ancient land. And to foretell our views,
learning of Sanskrit is undoubtedly necessary for protection of this
heritage. The stream of our culture would get dried if we were to dis-
courage the study of Sanskrit ...” It is submitted, recognition of state’s
positive duty vis-a-vis linguistic community under Article 29(1) is an
important development that has enhanced the role of right to equal-
ity in this domain for making the Article 29(1) right more meaningful.
Pointing out the importance of Sanskrit for developing Hindi language,
the Learned Judge observed:
“Indeed, our Constitution requires giving of fillip to Sanskrit because
of what has been stated in Article 351, in which while dealing with
the duty of the Union to promote the spread of Hindi, it has been
provided that it would draw, whenever necessary or desirable, for its
vocabulary, primarily on Sanskrit. Encouragement to Sanskrit is also
73 (1994) 6 SCC 579: AIR 1995 SC 293.

Preferential first and regional language policy 349
ve
N NE O ee
necessary because of it being one of the languages included in the
Eighth Schedule.’74
Another landmark judgment viz. Usha Mehta v. State of Maharashtra’
pronounced by the Supreme Court has looked to the desirability of
compelling to learn regional language for bringing the linguistic
minority to the mainstream of daily life of the linguistic state. The
case involved the constitutionality of Maharashtra government's order
to make study of Marathi language compulsory in schools throughout
the State, because of which English medium schools run by Gujarati
linguistic minorities were compelled to teach four languages as against
the accepted three-language formula. It was contended that the words
“of their choice” in Article 30(1) meant that the linguistic minority had
negative choice not to teach a subject that in fact obstructed conserva-
tion of its mother tongue as guaranteed under Article 29(1). It was also
contended that except providing for reasonable regulation for good
general education, the State had no power of compelling the minor-
ity to sacrifice learning of its language. The State of Maharashtra con-
tended that the said policy did not violate any of the Fundamental
Rights as the right to impart education in the medium of any of the
regional languages or of Hindi or English was still available. It was also
argued that the educational policies of all the Indian states from 1968
onwards was towards making the study of regional language com-
pulsory in order to get all the linguistic communities well equipped
to get assimilated in the culture and life of the people of the State.
The Three Judges Bench consisting of Rajendra Babu, CJI and Dr. A.R.
Laxmanan and G.P. Mathur, JJ. discussed the cases relating to extent
of governmental power of regulation upon minority institutions, held
the right under Article 30(1) as non-absolute, and located such power
as balancing between ensuring academic excellence and preserving
the minority right. Regarding the impugned order, the Court viewed
that since there was enough opportunity for English Medium schools
run by Gujarati minority to teach Gujarati as a composite subject even
with teaching of Marathi, there was no violation of fundamental right.
While the Gujarati community is at liberty to run Gujarati medium
schools along with teaching of Marathi subject, it was not in fitness of
things for them to establish English medium schools and ask for not
teaching Marathi. Rajendra Babu, CJI observed for the Court:
“It is difficult to read Articles 29 and 30 in such a way that they con-
tain a negative right to exclude the learning of regional language. Ipso
facto it is not possible to accept the proposition that the people living
in a particular State cannot be asked to study the regional language.
74 Ibid, at p. 297.
75 (2004) 6 SCC 264.
opriate for the linguistic

While living in a different State, it is only appr
view the resistance to
minority to learn the regional language. In our
the mainstream
learn the regional language will lead to alienation from
State, which is
of life resulting in linguistic fragmentation within the
rent languages
anathema to national integration. The learning of diffe
contribute
will definitely bridge the cultural barriers and will positively
impugned
to the cultural integration of the country. In our view, the
are liv-
policy decision is in the paramount interest of the students who
est of the
ing in the State of Maharashtra and also in the larger inter
t
country. Therefore we cannot rule that the impugned policy will resul
in destroying the minority character of the Gujarati communit y in
Maharashtra.’””°
It is submitted, the constitutional development in Usha is on appropri-
ate direction as it bridges communication gap, enables access to and
understanding between different linguistic communities and tries to
bring out composite culture and linguistic wealth of Indian languages
on a firm footing of societal tolerance.
The Divisional Bench of the Madras High Court in a judgment
rendered in August 2007 upheld a Tamil Nadu legislation prescrib-
ing Tamil as the first language, English as the Second language to be
compulsorily studied by all students from standard 1st to 10th and
any other optional language for those students whose mother tongue
happened to be other than Tamil and English” The Court rejected the
minority’s contention bas¢a on Articles 29, 30 and 350-A and observed,
“The minorities cannot claim an absolute privilege and right to impart
education through their mother tongue only. They cannot also insist
that by virtue of such right the State has no power to introduce any
language other than the mother tongue of the minority community.”
However, the Court also made it clear that in the guise of power of
regulation, the State shall not do anything that compels the minority
educational institutions to lose their character as minority institutions.
Adopting harmonious construction, the Court considered the policy
decision of introducing home language of the State or the mother
tongue as not unreasonable, and on the other hand, promoting excel-
lence in education. In AMPSS case the Karnataka High court followed
the Usha ruling to uphold constitutionality of the Karnataka govern-
ment order requiring the learning of regional language by all the chil-
dren residents of the state irrespective of their position as linguistic
minority or otherwise” Thus, the overall development is towards rec-
ognising the compulsory learning of “home language” of State.
76 Ibid, at p. 279.
7” The Hindu, 24-8-2007; the Tamil Nadu Tamil Learning Act, 2006 had been
challenged by the Kanyakumari District Malayala Samajam, and two others.
’*® Paras 73 and 74, (2008) 4 Kar LJ 593.
Conclusions 351
cE ES ER
7.7. Conclusions
In a multilingual and developing country like India the position of
language right in education is a result of interaction of several policy
considerations and compromises amidst conflicts of interests thrust
by social transformation. While global policy has largely traversed the
path of identifying genuine linguistic educational interest to strengthen
the cultural fabric, the open-ended “choice’”—whether parental or
communitarian—in educational right in India has exhibited the pos-
sibilities of misuse. The inevitability of three-language formula and
mother tongue instruction at primary education cannot be sidelined
by the hi-fi of English medium education, if education is to promote
excellence in cultural front also. Language policy in education has
to promote linguistic harmony and linguistic justice based upon the
proposition of equal language rights of all. In facing the challenges of
globalisation, the countervailing force of local culture should also be set
forth for safeguarding the social equilibrium. It is appropriate that as
in Europe, an all-India body of experts in language planning, minority
language delegates, educationists and non-government organisations
should guide, inspire, inquire and motivate evolution and effectuation
of fair policy on language right in education as a long term solution to
support the cause of composite culture. Supreme Court’s handling of
the issue with proper balancing is looked forward.
oman bee =
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CHAPTER 8
ey eet eae es Srey Fails bah
PEOPLE'SLANGUAGE AS THE LANGUAGE

OF COURTS: PERSPECTIVES, PROBLEMS
AND THE NEEDED STRATEGIES’
“They (courts) can be linked with the people only by using their (peo-
ple’s) language; it is a necessary democratic feature of the courts and one
of the foundations of social justice’” —M.N. Shukla, J.
8.1 Introduction
The essence of language is communication. Hence, it is but natural that

the communicative mechanism involved in a due process system ought
to operate in the language habitat of people whom it involves and to
whom it serves. Language is the medium through which an aggrieved
person can narrate the wrong inflicted upon him and pray for justice.
Parties, witnesses and other participants in litigation can understand
the notices, summons, warrant, pleadings and other communications
if those are in a language of their acquaintance. It is by using a known
language that a witness can speak out the facts best known to him, a
lawyer can proficiently conduct the case, and the judge can reasonably
decide it. These communicative acts are interconnected parts of the
whole adjudicative process. Thus, in the context of court proceedings,
the fundamental social function of language consists in promoting the
ability both to understand and to be understood. The process of com-
munication is complete when court directly or indirectly understands
the language of the litigants and other participants, and the litigants
1 Modified version of research article published in Journal of Indian Legal Thought.

2 Prabhandhak Samiti v. Zila Vidyalaya Nirikshak, AIR 1977 All 164.
354 People’s Language as the-Language of Courts
ee
and other participants understand the language of the court directly
or indirectly.
Communication is an essential component of fair hearing because
it is the sole source and means of proper understanding of the matters
about both questions of facts and questions of law involved in the case.
Knowledge of the court proceeding, which is being enabled by a policy
of linguistic transparency, minimises the possibilities of exploitation
at the hands of intermediaries, and thus mitigates abortion of justice.
Since language awareness is key to such knowledge, it is the distil-
late of fair play in action that court proceedings shall be conducted
in popular language. The sense of satisfaction, rather than suspicion,
about justice being done,is more likely to be created by such means. It
is the maxim of due process of law that justice should not only be done
but also manifestly and undoubtedly be seem to be done? Ihering had
observed, “Form is the sworn enemy of caprice... Fixed forms are the
schools of discipline and order, and thereby of liberty itself.”4 Because
of the relation between the form and the communicative means, lan-
guage right in court enters into the domain of human rights and claims
an indispensable place in the procedure established by law, which is
required to be just and fair and reasonable? A link between language
and legal practice arises from their common rootedness in the human
phenomena. It is this link, along with principles of natural justice that
converts language rights irt> human rights.
In a legal system, which is sensitised by judicial activism, the policy
of popular access to courts by Public Interest Litigation and Legal Aid
would become more effective if the language barrier does not obstruct
grievance redressal function. Further, a real social engineering can be
undertaken by the state by taking the social habitat into confidence in
their natural communicative attributes, the prominent of which is lan-
guage. A legal culture, reflecting or monitoring the human phenom-
enon, can hardly afford to disassociate itself from popular applicative
construct of the social and cultural system, that is language.’
In spite of the concrete advantages of the policy of “language of peo-
ple as language of the court”, in a linguistically divided federal system
of vast country like India, its effectuation at all levels faces serious, but
not insurmountable difficulties. India is a multilingual society. With a
linguistic scenario of similar type even in the past, the colonial prac-
tice of “English only” in courts had served the convenience of the colo-
nial master. In the Constituent Assembly, after a great controversy and
° State of W.B. v. Shivananda Pathak, (1998) 5 SCC 513: AIR 1998 SC 2050.
* Thering, cited by Roscoe Pound, The Development o Constitutional Guarantee o
Liberty (Yale University Press, New Haven 1951) atp. 14. ’ es
° Maneka Gardhi v. Union of India, (1978) 1 SCC 248: AIR 1978 SC 597.
° B.A. Masodkar, State, Individual and Law (N.M. Tripathi, Bombay 1979).
=
Introduction
e
ee
the ultimate half hearted political compromise on language issue, the

policy chosen was temporary retention of English as the sole language
of transaction in the Supreme Court and High Courts and opportu-
nity for gradual replacement of it by appropriate alternative by legis-
lative interference in future. Dismal failure in bringing such a transi-
tion appears to have been conspired by several factors: firstly, there is
felt, convenience of keeping the Pandora’s box of language controversy
and the phobia of language dominance by the largest single language
community pretty closed. Secondly, the failure to think about the due
process dimension of language rights in courts had marginalised the
language issue. Thirdly, callousness of policy makers and people in
developing the indigenous alternative to English language compelled
a static policy. Fourthly, the knowledge system of law- legal educa-
tion, legal literature, cases and materials—which caters to the needs of
adjudicative and administrative functions is largely built in English as
a colonial heritage which compels the continuance of status quo rather
than being in tune with the transformative spirit of linguistic justice. It
is submitted, these factors obstruct the ideal of “language of people as
language of the court”. From the viewpoint of due process rights and
the interests of diverse language groups, the position obtaining is not
a comfortable one.
Since languages are social resources and constant constructs of the
composite culture, bringing a change in the language use in court pro-
ceedings requires a planned action. Planning involves a deep analysis
of goals, means, and resources and coordinating them? The compe-
tence for, and efficacy of planned social change come from adequate
interaction between law and society. Setting aside the debate whether
law should lead or follow social change, the need to develop and har-
ness force of desirable change from within the society and through
legal compulsion should be realised by the planner. Consent and par-
ticipation of different language speakers adds to the success of mul-
tilingual planning.’ While the Constitution has framed a plan about
language use in courts at various levels subject to legislative interfer-
ences, 60 years’ of constitutional development have favoured the origi-
nal scheme.
and
The present chapter makes a historical, comparative, analytical
to sug-
empirical study of the subject, “language in courts”, and tries
ing and devel-
gest pragmatic reforms through careful language plann
justice.
opment to promote legal justice through linguistic
7” 2 esha ; iB
‘
ram,
j
“The Politi cs of Langu age Plann ing in Tamil Nadu” in E.
7 M. Chidamba ae.
e 1986) at pp. 338-39.
Annamalai, Language Planning (CUL, Mysor nal Plann ing
n Formation, and Regio
8 DP. Pattanayak, “Language, Politics, .Regio
in E. Annamalai, supra, n. 7 at pp. 18, 19-22
356 People’s Language as the Languag e of Courts
ea eee I it SRS ES RR ERS
8.2 Historical overview
Ever since the Vedic period, India has been multilingual throughout the
ages. As a pioneer of Indian languages and culture, Sanskrit became a
storehouse and communicative means of legal knowledge. Although
Smritis do not mention about the role of language in jurisprudence and
judicial procedure, it is possible to infer that as the king and his court
of justice transacted in Sanskrit and issued jayapatra (judgment) in
Sanskrit®, at the royal level Sanskrit remained as the official language
of the Court. With the evolution of Pali and Prakrit in post-Buddhist
period and various regional languages during the first millennium
AD, the need for accommodating regional linguistic interests were felt.
Since all these language got developed as cultivated vernaculars by
gathering huge vocabular support from Sanskrit, which was a com-
mon fountainhead of culture, science, philosophy and legal knowIl-
edge, they developed as several petals of the same lotus.” This factor
not only tuned the society to linguistic tolerance but also resulted in
gradual evolution of direct and indirect multilingual norms and prac-
tices in adjudicative system in the following manner.
Firstly, the Shastrik law laid down by the law “givers” was mainly
reflecting the living law of the people viz. customs, popular usages,
social morality, familial obligations etc. Although the reformative
spirit of living law did not so much purge the archaic Shastrik law, at
least as a system emerging, irom the society and expressing itself in
intimate native dialect, the living law poured words of local usage into
the corpus of law and in turn, brought the law into people’s level of
understanding. This process of inclusion of Prakrit and regional lan-
guage words in Sanskrit legal verses, as can be seen from Vishnusena’s .
Charter (592 AD) and Kulluka’s commentary, and the common vocab-
ular link between Sanskrit and other Indian languages conformed to
the requirement of transparency."
Secondly, at the base of hierarchy of courts in ancient India, there
were People’s courts like Kula, Shreni and Puga.** According to Smriti
Chandrika, Kula consisted of impartial persons belonging to the family
” For a perusal of jayapatra, see, M. Rama Jois, Legal and Constitutional History of India,
Vol. I (N.M. Tripathi, Bombay 1984) at pp. 685-91.
DP. Pattanayak, Language, Education and Culture (CIIL, Mysore 1991) at pp. 96-99.
1M. Rama Jois, Legal & Constitutional History of India , Vol. 1(N.M. Tripathi, Bombay
1984) n. 9 at pp. 695-06.
2 PV. Kane, History ofDharmashastra, Vol. II (Bhandarkar’s Orient Research Institute,
Poona 1973) at p. 281. At the higher levels, there existed four kinds of courts of justice
viz. pratishtita, apratishtita, mudrita and sasita where although Sanskrit was used for the
purpose of reference to Shastrik law, arguments and judgments, proceedings like trial
were conducted in people's languages. See also, M.K. Sharan, Court Procedure in Ancient
India (Abhinav Publications, New Delhi 1978) at pp. 26-27.
Historical overview 357
of caste assembled to decide disputes among members of the same

family or caste.3 Yajnavalkya states that Sreni denoted the court of
the guilds consisting of persons from the guild, competent to decide
matters relating to their special calling or trade.* The Puga court of
Yajnavalkya consisted of members belonging to different castes and
professions but staying in the same village or town.’ Since by the time
of Guptas, Sanskrit had been confined to the learned classes only, and
the village community used to transact in regional languages, it would
be appropriate to assume that the medium of language of people’s court
was the relevant regional language. This point can be substantiated by
referring toa seventh century inscription of a Chalukya King at Badami
which mentions Kannada as the local Prakrit or natural language and
Sanskrit as the language of culture”® and to the Utaramerur inscription
of Cholas, which evinces that local persons learned in Sanskrit were to
interpret the Shastrik law in Prakrit or other regional language.” This
established the link between Shastrik law and court practices subject
to local adaptations. It also resulted in multiple bilingualism.
Thirdly, the procedure prescribed for trial in royal courts hints
about substantive use of popular language in the trial proceedings.
According to Mitakshara, the king or judge should ask the plaintiff or:
complainant at his first appearance, “What is your grievance? What
is the injury done to you? From whom, where, when, how and why?
Have no fear, speak out.”"* The answers should be recorded. Where
the complainant is not in a position to speak about his case lucidly, it
is the duty the judges to ascertain the facts from him and amend his
declaration suitably.” Elaborate provisions in various Smritis about
summons to witnesses and about treatment of witnesses in trial pre-
suppose use of popular language in courts. Manu prescribed for giv-
ing warning or exhorting the witnesses in an understandable manner
before they gave evidence.” As stated by Katyayana, “The words of
the witnesses when free from faults should be taken down as nar-
rated by them naturally” The term “naturally” suggests about use of
13 Smriti Chandrika, I-18; PV. Kane, supra, n. 12 at p. 280; Narada, I-7; Vyavahara
Prakasha, at p. 29.
4 Yaj., 1-9; Vira Mitrodaya, at p. 280.
'S Katyayana (225 and 682). Z
16 Romila Thapar, A History of India (Pengui n Books, Middlesex, 1966, rept. 1981) at
pp. 181-84 and 254.
7 Ibid, at p. 202.
Kat., at pp. 124-28
18 Mitakshara, at pp. 6-13; M. Rama Jois, supra, n. 11 at pp. 517-18;
and Yaj., II-5 detail about content of plaint in Sanskrit.
19 Mitakshara, at pp. 6-13.
20 7O-
y of India (N.M.
aa cece oa M. Rama Jois, Legal & Constitutional Histor
Tripathi, Bombay 1984) at p. 549.
358 People’s Language as the Language of Courts
ia EN J RISENER RON BEE
witness’s natural language or mother tongue. The jury system and the
participation of experts like accountants, artisans and merchants in
complicated cases* in ancient India give rise to a pragmatic assump-
tion about use of popular language in courts. Even in Sanskrit plays,
the court scene and interrogatory scenes are depicted in non-Sanskrit
language.® Although jayapatra was given in Sanskrit,* trial was in
popular language. The practice of employing persons learned in law
to appear and argue on behalf of parties bridged the communication
between the court and parties.*
Fourthly, discovery of a large number of royal edicts in non-San-
skrit language ever since the Mauryan period has ruled out the dichot-
omy between local and official language in administrative practices.
Sukranitisara has required that royal edicts should be written down
in a manner understandable by the people and be displayed wher-
ever four roads meet.” The inscriptions of Kadamba Kings at Halmidi
in Kannada (450 AD) of Chalukya Kings at Badami, of Rashtrakutas
at Balguli and other places (1054, 1060, 1121 AD) and of Cholas at
Uttaramerur in Tamil point out use of regional languages in adminis-
tration.?”7 The courts used to take cognisance of these royal edicts and
hence, court proceedings were bound to be in a mixture of languages.
Owing to the above developments, some of the regional languages
like Kannada got equipped to handle judicial proceedings exclusively
in that language. The process culminated in proclamation of judgment
in Kannada itself in a complicated case in 1059 AD by the Chalukya
King Someshwara. The case was relating to encroachment of lands,
which were donated by Shivite devotees, and the case was wholly
conducted in Kannada and judgment was rendered in Kannada.”
Similarly in 1368 AD, king Bukkaraya of Vijayanagara gave a judg-
ment in Kannada in a landmark case resolving the communal tension
between Jainas and Vaishnavas. After dealing with the facts involved
in the case i.e. persecution of Jainas by Vaishnavas in several places
the king proclaimed the verdict that Vaishnavas were under a duty
not to infringe the religious rights of Jainas. It was reasoned, “As the
Jaina and the Vaishnava religion are equal in status, the flourish or fall
2 Vyasa quoted in Parasara Madhaviya, II-42; Kautilya, I-19; Gautama, XI-21-22; PV.
Kane, supra, n. 12 at p. 284.
23° Mrichhakatika, Shakuntala, etc.
* Vyasa Dharmakosha, at p. 376; Kat., at pp. 259-61; Vyavahara Nirnaya, at p. 85.
> Narada, at pp. 22-23, 29; Sukranitisara, 1V-5, 228-31; See, PV. Kane, supra, n. 12 at
pp. 288-90.
1578)MLK. Sharan, Court Procedure in Ancient India (Abhinav Publications, New Delhi
4 RR il Rajapurohita, Kannada Tirpugalu (University of Mysore, Mysore 1971)
8 Ibid, at pp. 10, 199-00.

Historical overview 359
of Jaina religion is equally the flourish or fall of Vaishnava religion as

well.” It is submitted, a sublime thought of secularism could appro-
priately emerge in a native tongue and cement a harmonious relation
by appealing in a popular language.
Medieval India in the North saw a chequered linguistic scenario
in legal proceedings2° Urdu, an offshoot of Persian language and a
camp dialect, was developed as the lingua franca of the Sultanate.
Owing to sufi influence and Bhakti movement, Hindi, with its Persian
vocabulary and syntax, became transparent and interchangeable with
Urdu>" People familiar with Hindi could understand Urdu and com-
municative difficulties in legal or judicial proceedings were not felt.
With the introduction of Persian as the official language of the Muslim
Kingdoms, Persian and Urdu words infiltrated into the regional lan-
guages;* Because of popular usage and acquaintance with Hindustani
and schooling in Persian language, the north conformed to the maxim,
“people’s language as language of the court”. In provinces far away
from Delhi, but subject to the Delhi rule, the learning of Persian and
reception of Persian word in the regional language were responses to
the challenges of unfamiliar official language? The changes in offi-
cial position of languages did not alter the language and law of peo-
ple’s courts, which had jurisdiction on three-fourths of the population.
The Kazi courts were either not resorted to by the Hindus in fear of
non-application of Hindu Law or were approached in Hindustani lan-
guage. From the great interest shown by Akbar and Jahangir in popu-
lar access to justice, it is possible to infer that linguistic barrier was not
a barrier to attain justice»
The grievance redressal systems prevalent during the early British
rule in India partly continued the existing system and partly intro-
duced the system of Company’s Courts. Since Company Courts were
presided over by English judges or English civil servants, English was
the language of court’s business2» Members of the jury were also drawn
from the British community. Service of lawyers was not favoured. In
pri-
some significant cases, subversion of court's functioning to enable
vate profiteering or satisfaction of pride and prejudice of English civil
:
29 Ibid, at pp. 10-11, 200-01.
ed History of India (2nd Edn.,
%” KA. Nilakanta Sastri and Srinivasachari, Advanc
Allied Publishers, New Delhi 1980) at p. 374.
, Middlesex, 1966, rept., 1981)
31 Romila Thapar, A History of India (Penguin Books
. i he
at pp. 313-14. e, Mysore )
ersity of Mysor
2 Jayatirtha Rajapurohita, Kannada Jirpugalu (Univ
at p. 10. .
3 Romila Thapar, supra, n. 31 at p. 334.
History of India, Vol. Il (N.M. Tripathi,
4 M. Rama Jois, feat and Constitutional
Bombay 1984) at pp. 19-21.
3% Ibid, at pp. 159-60.
360 e as the Language of Courts
People’s Languageed
a coe Net Sel Lt
servants was done by manipulation of language barrier in courts, In
Rama Kamti case, in addition to various due process failures, lack of
transparency between witnesses and members of the tribunal because
of language difference, contributed towards injustice?”
The trial and execution of Nandkumar by the Supreme Court of
Calcutta is another case illustrating injustice arising from disparity of
languages between participants of the judicial process.” According to
Beveridge, the judges, jury and the counsels were all foreigners unac-
quainted with the language of the witnesses and Nandkumar himself
was not acquainted with the court’s proceedings2* The interpreter
through whom the trial was conducted was not proficient in the
Bengali language. Along with other procedural injustice, this linguis-
tic injustice was an instrument of oppression. As M.P. Jain views, for
the Indians, “the court was a foreign institution, speaking foreign lan-
guage, applying a foreign system of law and using a procedure beyond
their comprehension.”9 Although in some of the civil cases like Patna
case, for ascertaining the law and custom of people, kazis and pandits
were employed, who, many a times used to conduct hearing also, the
practice was not a general and widespread one.‘ In fact, farmers of
Bihar had requested the Government, but in vain, to relieve Bahadur
Beg from the jurisdiction of the Supreme Court whose law, language,
process and procedure were not understood by them.
The judicial reform brought by Cornwallis introduced the system of
legal profession, which acted as a link between litigant and the court
and to a certain extent mitigated linguistic injustice.“ The practice of
appointing native law officers to assist the court in civil matters relat-
ing to personal law was systematised. This also contributed to mitiga-
tion of linguistic injustice in court procedure.
With the dawn of English education as the “panacea for regenera-
tion of India and as a key to all improvements in 1834, English was
declared as the language of the higher courts and of government busi-
ness, to replace Persian language.’ In the lower courts regional or
Persian language continued. Codification of procedural law in the
* M.-P. Jain, Outlines of Indian Legal History (3rd Edn., N.M. Tripathi, Bombay 1972)
at p. 36.
*” Ibid, at p. 102-03; M. Rama Jois, Legal & Constitutional History of India, Vol. Il (N.M.
* Beveridge, The Trial of Nandkumar, at p. 218 cited by M.-P. Jain, supra, n. 36, at
p. 103.
*° M.~P. Jain, supra, n. 36 at Diy,
© Ibid, at pp. 113-15.
* Ibid, at p. 187; M. Rama Jois, Legal & Constitutional History of India, Vol. II (N.M.
* Percival Spear, The Oxford History of Modern India (2nd Edn., Oxford University
Press, Delhi 1979) at p. 145.
form of CPC and CrPC and the relevant rules of practice provided for
use of English or regional language in various stages of proceedings.
Service of interpreters and jury presupposed application of regional
language.
However, as can be seen from Bal Gangadhar Tilak case II#, in select
cases juries knowing only English but not regional language were
deliberately appointed. The case was relating to allegation of sedition
through publication of articles in Maratha and Kesari by Tilak. The func-
tion of the jury was to assess the “seditions” effect of the article. Tilak’s
argument that the juries were not proficient in Marathi and were inca-
pable of assessing the effect of articles in a language unknown to them
was rejected on the ground that a translation had been provided. In
fact, the translation was inadequate. Tilak was convicted for sedition.
Linguistic injustice was responsible for a grave injustice.
While Anglophonic hegemony was deliberately employed to repress
nationalist movement, same linguistic hegemony was instrumental in
projecting racial hegemony of the whites in court proceedings against
them. The demand that the whites can be prosecuted or sued in courts
where only the Englishmen were judges and juries was put forward
and accepted on linguistic grounds, contrasted with the Tilak case, the
British dichotomy on the issue of language in courts is clear.“
However, from some of the judgments rendered by Munsif Courts in
regional language during later part of 19th century, it can be inferred
that the lower courts largely utilised the enabling provision in Civil
Procedure Code.
During the nationalist movement, Gandhiji, the greatest modern
Indian thinker, statesman and a literary man, projected the common
man’s perspective of linguistic medium for public affairs. He regarded
that while English language was great language which did lot of good,
nevertheless no nation could become great on the basis of foreign lan-
guage, because a foreign language could never be the language of the
people. He condemned the dichotomy between language of the ruler
and language of the ruled.*
While the Constituent Assembly had the responsibility of providing
adequate scope for Indian language in public affairs and official use, it
had to be equally pragmatic in the light of two factors viz. inadequacy
4 S$P. Sathe, “Human Right and Natural Law Thought” in E.S. Venkataramiah
Tilak,
(Ed.), Human Rights in the Changing World (1988), at p. 226. Bal Gangadhar
i, Documents on
“Constitutional or Extra Constitutional Agitation” in A. Appadora
Bombay 1973) at
Political Thoughts in Modern India, Vol. | (Oxford University Press,
pp. 186-88. .
44 Garrett, An Indian Commentary, at pp. 116-17. Gandhi
ts of Mahat ma
4° MK. Gandhicited in Krishna Kripalani (Ed), Life and Though
at p. 154.
People’s Language as the Courts
Language of eee
362 a a e :
E
Re
sh in
of Hindi, the largest spoken Indian language, to replace Engli
in
courts and legal proceedings and inconvenience of non-Hindi states
was
case of sudden switch over to Hindi. The Constituent Assembly
divided between Hindi enthusiasts and rationalists about language
policy.#® The Munshi-Ayyangar formula was a political compromise,
which favored status quo for 15 years’, development of Hindi and
empowerment of Parliament to mould linguistic policy in future. It
also provided for exclusive use of English in Supreme Court and High
Courts until the parliament or respective state legislatures enacted
otherwise. In support of this formula, Sri N.G. Ayyangar observed:
“Our courts are accustomed to English; they have been accustomed
to laws drafted in English; they have been accustomed to interpret in
English. It is not always possible for us to find the proper equivalent to
an English word in the Hindi language and then proceed to interpret it
with all precedents and rulings which refer to only to the English words
. and not the Hindi words...we must not be carried away by mere senti-
ment or any kind of allegiance to revivalism of one kind or another. We
have to look at it from the standpoint of practicability. We have to adopt
the instrument which would serve us best for what we propose to do in
the future. .:’47
Jawaharlal Nehru supported the formula from a democratic perspec-
tive.‘* Firstly, pointing out language’s base in culture, he regarded that
the gulf between people who knew English and those who did not
know English obstructed tne communicative links that are required
for a democratic culture, which, inter alia, included court proceedings.
Secondly, as imposition of a language on unwilling people was anti-
democratic, development of Hindi as a composite language based on
vocabular support from all the Indian languages would make Hindi
democratically acceptable to all the linguistic communities.
Mr Frank Antony viewed that the concept of language of people as
language of the court should evolve from below, but only at a future
stage when the court is equipped well in that language. He observed:
“...for a number of years certain ancillary work in all courts has been
done through the medium of the local or provincial language. The
accused is always examined in his mother tongue. Certain documents
are always kept in Hindi. I am talking about the more fundamental
work that even the lower courts are required to perform, for instance,
the writing of judgment by a sessions court. I feel that if a change has
to be made it should not be made at this stage. The change can be made
later on when we can be sure that our judges have the capacity and
ae For a discussion to the effect that it was a half-hearted formula, see, Granville
Austin, Indian Constitution: Cornerstone ofaNation (Oxford University Press, Bombay
1965) at p. 265. ’
*” CAD, Vol, IX, at p. 1323 of Book 4.
* Ibid, at pp. 1411-17.
Comparative conspectus of “language in courts” in other systems 363
eee ee ee
knowledge to be able to write in Hindi with the same finesse, with the
same analytical precision and with the same strength of language as
they do at present in English.“
However, it was observed by Deshbandhu Gupta that in United
Provinces, Bihar and Punjab it was an already prevalent practice that
in lower courts judgment was rendered in Urdu and was translated
into English, if necessary for the purpose of sessions court and High
Courts.°°
Purushotham Das Tandon criticised the Ayyangar proposal as ret-
rograde as it prescribed English as the language of transaction in High
Courts until the state legislature enacted otherwise5' According to
him, it meant that even in those High Courts where Hindi was the
language of transaction and language of legislations, English had to
be the exclusive language of transaction in High Courts against the
will of the people. He regarded that unless an opportunity is given
to Hindi to replace English at least in Hindi provinces, a beginning
will not be made. The Constituent Assembly rejected Tandon’s amend-
ment as the state legislatures were given the power of changing over
to Hindi or regional language.
It is apparent from the above that the Constituent Assembly’s choice
of unified judicial system with Supreme Court at its head in the Indian
federal system had to be inevitably associated with the choice of a
language for Court’s transaction, which could satisfy the factors like
availability of legal literature in the concerned language, avoidance of
difficulty of communication involved in multiplicity of languages and
lack of readiness on the part of people at the helm of affairs to accept
indigenous linguistic medium in higher judiciary.
8.3 Comparative conspectus of “language in courts” in other

systems
A discussion about the constitutional experiences of the United
Kingdom and Canada, which have in the long run realised and inter-
nalised the importance of the policy of “language of people as the lan-
guage of the court” as a necessary fall out of the due process require-
ment of transparency, is worth undertaking as they enlighten about
the propriety, viability and necessity of the policy.
Ibid, at p. 1366.
” Ibid.
51. [bid, at p. 1447.
364 of Courts
People’s Language as the Language e
acca ne apne tee Une hS NR—
8.3.1 Experience of the United Kingdom
In England, English became the language of the courts due to politi-
cal autonomy and efflorescence of nationalist sentiment after its suc-
cessful battle for supremacy with Latin and French languages for
more than five centuries; While the Saxon invaders imposed Latin,
the Norman conquerors replaced it by mixture of Latin and French?
The court’s records remained in Latin, but pleadings, proceedings
and judgments were rendered in French. It was only in 14th century
that English supplanted the French as the language of the ruling class.
An Act of 1362, itself written in French, declared that as the French
tongue was but little understood, all pleas should be “pleaded, shewed,
defended, answered, debated and judged” in the English tongue. But
the statute failed to achieve its stated purpose for two reasons. Firstly,
it could not break the settled habits of Westminster lawyers to think
and write about law in French. Secondly, the technical terms were all
in French, which were “so woven in the laws themselves, as it is in a
manner impossible to change them” It was ‘with a gradual process
of Anglicisation of court language that English as the language of the
people ultimately replaced the language of the upper class in courts of
England. Ultimately in 1731, with the concretisation of the principles
of popular power and responsible government, the use of Latin in the
law courts was abolished» It was an irresistible development that a
language, which had ente:ed into the life of the British people, made a
mark as a court language.
8.3.2 The Canadian experience

The Canadian experience about language in courts underwent several
phases of development ranging from hegemony to duality, tolerance,
equality and advancement. The British conquest of Canada in 18th
century was gradually followed by an Anglophonic hegemony in law-
making process, which, in turn, marginally disturbed the position
“language of people as language of the court”. The development was
resented, and language strives erupted. The Constitution Act, 1867 fol-
lowed the ideal of linguistic duality and the spirit of respect and tol-
eration to assuage the strifes.
2 Atul Chandra Patra, “Multilingual Legislation” (1968) 10 JILI 661.

°° Fortesque lamented that law of the land was to be understood by using three
languages viz. English, French and Latin. See, Fortesque, de Laudibus Legum Angliae
1616, see also, W.S. Holdsworth, A History of English Law, Vol. II (3rd Edn.) at p. 479.
4 Edward Coke in Preface to Commentary Upon Littleton, Hargrove Butler (Ed_),
1823; also see Prabhandhak Samiti v. Zila Vidyalaya Nirikshak, AIR 1977 All 164.
* 5iGEO. 2) 16 Set,
Comparative conspectus of “language in courts” in other systems
e e eee OE 365
Section 133 of the Act requires that “either French or English may be
used by any person or in any pleading or process in or issuing from
any Court of Canada established under the Act and in or from all or
any of the Courts of Quebec”. The right is subsequently extended to
the Courts of Manitoba, the Territories and New Brunswick. Under
Section 19(1) of the Canadian Charter of Rights and Freedoms, the right
is extended to any Court established by Parliament. Section 14 of the
Charter provides, “A party or witness in any proceeding who does not
understand or speak the language in which the proceedings are con-
ducted or who is deaf has the right to the assistance of an interpreter.”
According to Professor PW. Hogg, the phrase “any proceeding” would
include civil as well as criminal proceedings and proceedings before
the administrative tribunals*° Professor Joseph Magnet considers the
right under Section 14 as distinct from the right to be understood in the
language of choice. In R. v. Tran>* the Supreme Court held that courts
should be generous and open-minded when assessing the accused’s
need for an interpreter. The court gathered assistance from principles
of fundamental justice, equality and multiculturalism for this reason-
ing. The Court observed, “The very legitimacy of the justice system in
the eyes of those who are subject to it is dependent on their being able
comprehend and communicate in the language in which the proceed-
ings are taking place.”
The “either or” approach in Section 133 of the Constitution and
Section 19(1) of the Charter enables linguistic duality. But does not
compel bilingualism whereas the guarantee of the right to interpreter
under Section 14 is an instrumentality of fundamental justice. Taking
this distinction to the logical extreme, it is held by the majority of the
Supreme Court of Canada in MacDonald v. City ofMontreal® and Societe
des Acadiens v. Society of Parents® that language rights are based on
political compromise, rather than on principle, and lack universality.
Beetz, J. wrote for the Court, “It would constitute an error either to
import the requirements of natural justice into language rights or vice
versa.”
Dickson, CJ., in dissent, observed in Societe des Acadiens, “Language
rights in the courts are, in my opinion, conceptually distinct from fair
hearing rights. While it is important to acknowledge this distinction,
Toronto 1992) at
% PW. Hogg, Constitutional Law of Canada (3rd Edn, Carswell, .
p. 1215.
and Material s, Vol.
7 Joseph E. Magnet, Constitutional Law gfeerade: Cases, Notes
(4th Edn., Yvon, Blais, Montreal 1989) at p. 694.
38 (1994) 2 SCR 951. i ;
Interpreted” Bulletin of
5° Ibid; See also, Yves Le Bouthiller, “Right to Interpreter
Canadian Centre for Linguis tic Rights , Vol. III (1995).
6 MacDonald v. City of Montreal, (1986) 1 SCR 460.
‘1 Societe des Acadiens v. Assn. of Parents, (1986) 1 SCR 549.
366 People’s Language as the Langu age of Courts
Bs a en e A ea EA C
each category of rights does not occupy a watertight compartment. Just
as fair hearing is, in part, intimately concerned with effective commu-
nication between adjudicator and litigant, so too are language rights in
the court. There will therefore be a certain amount of overlap between
the two.”
Following the above line of reasoning, issuing of unilingual proc-
ess® or non-supply of French version of a Saskachewan statute, which
was in English, was upheld. It is submitted, the majority view is
hardly able to convincingly dispel the minority proposition of per-
meability between language rights and principles of natural justice
because of the importance of communicative function in the adjudi-
cative process. It is criticised in the academic circles as obstructive to
genuine bilingualism and as ignoring the purposive interpretation of
the Constitution."
Section 16 requires federal courts to arrange their affairs so as to
ensure that in any given case if the parties choose English as the lan-
guage of proceedings, each judge who hears the proceedings is able to
understand English without the assistance of the interpreter; if they
choose French, every judge hearing the proceedings is able to under-
stand French without the assistance of an interpreter; if both the lan-
guages are chosen, every judge who hears the proceedings is bilingual.
Although Section 16 exempts the Supreme Court of Canada from these
obligations, in fact, the majsrity of judges are bilingual and the rest are
pursuing language training.
Section 17 enables the courts to make rules of practice and proce-
dure, including rules respecting notice, to assist towards compliance
with Sections 15 and 16. Sections 18 and 19 obligate the federal govern-
ment and its institutions when they appear before federal courts to
make their oral and written pleadings in the official language chosen
by the private parties, and to serve bilingual court forms on such par-
ties in those proceedings.
Section 20 provides that the final decisions, orders and judgments of
federal courts shall be “made available” in both the official languages
where the decision determines a question of law of general public inter-
est or importance, or where the proceedings were conducted wholly or
partly in both the official languages.
On the whole, the developments in Canada have been definitely
towards infusing the elements of natural justice into language rights
and linguistically empower the parties to the judicial process for more
® R. v. Mercure, (1988) 1 SCR 234.
°° Bideau v. A.G. Manitoba, (1986) 1 SCR 449.
“ Michael Bastarache, “Bilingualism and the Judicial System’ in Michael
Bastarache (Ed.), Language Rights in Canada (Bles, Ottawa 1987) at p. 130; Lesle Green,
Are Language Rights Fundamental?” (1987) Osgoode Hall Law Journal 639 at p. 646.
Analysis of law and practice governing language in courts 367
a
effective participation and ensure greater transparency. The Official
Languages Act, 1988, has furthered the constitutional initiative in
bilingualising almost all the spheres of adjudicative process. Although
non-official languages are not treated on par with official languages,
to the extent it goes, equality of official languages has contributed
towards the concept of equality in litigational arms. The Canadian les-
son is that legislative initiative is more appropriate to bring language
right reform.
8.4 Analysis of law and practice governing language in courts in

India
With the establishment of integrated system of law courts in India,
along with the provision for transfer of High Court Judges and mecha-
nism of unified bar, the constitutional policy regarding language in
higher judiciary had to be both pragmatic and accommodative to future
changes. Integration of human rights values and principles of natural
justice into this sphere brought a better place to language rights in
courts. At the subordinate courts, which form the base of judicial pyra-
mid, legislation allow use of Indian languages in courts although the
practice is not satisfactory from the perspective of linguistic justice.
8.4.1 Language in Supreme Court and High Courts

According to Article 348(1), “Notwithstanding anything in the forego-
ing provisions of this part, until Parliament by law otherwise provides,
all proceedings in the Supreme Court and in every High Courts shall
be in the English language.”
In order to support smooth functioning of this provision, Article
348 also provides that the authoritative texts of the Bills, Acts and del-
egated legislations passed or issued under the Constitution or by the
Parliament or State Legislature shall be in English. Unlike the provi-
sions relating to official lenguage, no time limit is prescribed about
substitution of English by Hindi or regional language. However, there
is adequate flexibility for providing “otherwise” by parliamentary law.
In so far as language in High Courts is concerned, state law authoris-
ing use for Hindi or other official language of the state in the proceed-
ings before the concerned High Court except at the stages of judgment
or decree or order is permitted, subject to the previous consent of the
President of India. It is significant that hasty legislative efforts without
by the
adequate equipment of the regional language can be stalled
President.
es
ted on
In Madhu Limaye v. Ved Murti®, one of the interveners insis
Court.
arguing in Hindi ina habeas corpus petition before the Supreme
ground
However, the counsel on the opposite side objected it on the
natives:
that he could not follow Hindi. The Court suggested three alter
(i) that he may argue in English, or (i) that he may allow his coun-
sel to present ris case, Or (iii) that he may give written argument in
English. The intervener did not accept these suggestions. The Supreme
Court ordered that the language of the Court was English and that the
Court was forced to cancel the intervention in view of non-acceptance
of proposals suggested by the Court. It appears, if the counsel on the
opposite side and the judge were able to follow Hindi, and written
argument in English had been submitted, oral arguments in Hindi by
the interveners would have been allowed.
An admirable development in the Supreme Court's practice in
Public Interest Litigations, which are also initiated through letters
addressed to the Court,” is that the Court has been entertaining the
letters written in Indian languages. According to Chief Justice E.S.
Venkataramaiah, the letters addressed to the Supreme Court in ver-
nacular languages seeking redressal of grievance are translated into
English by the officers of the Court’s Registrar or by the advocates who
know the concerned language.” Thus multilingualism has made a
threshold entrance in knocking the doors of the Supreme Court. With
an evolution of the activ<t approach that for the purpose of Article
32 “appropriateness of proceeding” is connected with the content of
grievance statement rather than to its form,®* multilingual epistolary
jurisdiction links people with the Court. This is a welcome develop-
ment and inevitable fall out of Public Interest Litigation. In fact, under
Article 350 it is provided, “Every person shall be entitled to submit a
representation for the redress of any grievance to an officer or author-
ity of the Union or State in any of the languages used in the Union
or in the State, as the case may be.” The scope of this article is to be
determined in the light of remedial objective underlying the Article
and the spirit of equality, rule of law and principles of natural justice
contemplated thereunder. It can be argued that the Supreme Court is
also an “authority” for the purpose of Article 350; that the Court’s pro-
cedure shall also be just, fair and reasonable in view of the ratio in
Sadanantham® that reading Article 348 in isolation from other consti-
® (1970) 3 SCC 739: AIR 1971 SC 2481; See also, V.N. Shukla, Constitution of India (8th
Edn., Eastern Book Co., Lucknow 1990) at pp. 660-61.
°° Sunil Batra v. Delhi Admn., (1978) 4 SCC 494: 1979 SCC (Cri) 155; Nilima Priyadarshini
v. State of Bihar, 1987 Supp SCC 732: 1988 SCC (Cri) 138: AIR 1987 SC 2021.
* This was disclosed during personal conversation with the author.
°° Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161: AIR 1984 SC 802; Charles
Sobraj v. Supdt., Central Jail, (1978) 4 SCC 104: AIR 1978 SC 1514.
® P.S.R. Sadhanantham v. Arunachalam, (1980) 3 SCC 141: 1980 SCC (Cri) 649 where
Analysis of law and practice governing language in courts
Sg
te 369
tutional values would be fallacious and hence, multilingual
ism shall
be allowed at least in invoking the Court's jurisdiction. It is submitted,
in view of Article 348, such an argument fails except in extraordinary
circumstances of grave injustice that is brought to the Court's notice by
letter addressed to the Court in Public Interest Litigation. It is a notable
development that at least in such special cases, multilingualism has
registered a modest entry point.
As regards the High Courts, Article 348(2) of the Constitution pro-
vides, “Notwithstanding anything in sub-clause (a) of Clause (1), the
Governor of a State may, with the previous consent of the President,
authorise the use of the Hindi language, or any other language used
for any official purpose of the State, in proceedings in the High Court
having its principal seat in that State; provided that nothing in this
clause shall apply to any judgment, decree or order passed or made by
such High Court.”
The inbuilt checks in the application of Article 348(2) are (i) the
requirement of previous assent of President operates as a Central
Government's control over states’ choice of High Court’s language
and (ii) non-applicability of the clause in the matter of judgments and
decrees or orders will avoid difficulty to the Supreme Court’s appel-
late proceedings over them. Only a few States (U.P., Madhya Pradesh,
Bihar and Rajasthan) have enacted to permit the use of the Hindi
in the High Court proceedings other than in judgments, decrees or
orders. In Prabhandhak Samiti v. Zila Vidyalaya Nirikshak”, the Allahabad
High Court interpreted a statutory notification under Article 348(2)
as permitting submission of writ petitions and affidavits in Hindi in
Devanagari script. M.N. Shukla, J. for the Court observed, “It cannot
be doubted that the proceedings of the courts functioning for the ben-
efit of the inhabitants of any place must, on principle, be conducted in
a language understood by them.””"
The Learned Judge pointed out the irresistible character of language
of the people ultimately replacing language of the court because of
the due process component of language right in court as evident from
English constitutional history. But this does not mean compulsion to
avoid use of English altogether in the court’s proceeding. As was held
in Narendra Kumar v. Rajasthan High Court? recognition of Hindi as
official language of Rajasthan High Court did not compel the Court
to render judgments only in Hindi because of permissibility to use
fairness in proceedings of the Supreme Court at appellate stage under Art. 136 was
required as an outcome of fair procedure under Art. 21.
” AIR 1977 All 164.
1 Ibid.
? AIR 1991 Raj 33.
People’s Language as the Language of Courts
370 ee e
SS
SE
acquaintance
English also in court proceedings and possibility of non-
of transferee judge with Hindi.
g the
The increased practice of transfer of High Court judges durin
have, to
last two decades and the constitutional development thereof
in
a certain extent, added some difficulties to the language problem
’
High Courts. E.S. Venkataramiah, J. in S.P. Gupta v. Union of India
viewed on the basis of Constituent Assembly’s approach and State
Reorganisation Committee’s recommendation that the advantages
flowing from the transfers of High Court Judges would outweigh the
disadvantages including those flowing from the various regional lan-
guages of India. But Gupta, J. in Supreme Court Advocates-on-Record Assn.
v. Union of India’ expressed, “If the judge is wholly unfamiliar with the
language of the State to which he is transferred it is possible in some
cases that it will affect his efficiency. I would ask the Government to
consider if it is possible to transfer Shri K.B.N. Singh to some High
Court, consistent with his position as a senior Chief Justice, where the
language problem will not be acute.”
The experiences of Gujarat and Rajasthan High Courts with regard
to language problem of transferred judge are reflected in some deci-
sional law. Both in State of Gujarat v. Patel Jayantibhai Chaturbhai?> and
Munnaram v. Hariram’’ the High Courts addressed to the problem of
delay in getting translated versions of lower courts’ judgments and
related documents, which were in regional language and upon which
appeals were preferred. since some members of the Bench were not
conversant with the regional language, this problem had arisen. The
Courts referred to the factors of cost and delay involved in the transla-
tion, non-availability of adequate number of official translators and
ensuing violation of Article 21, which is interpreted to provide for
cheap and expeditious justice. Vaidya, J. for the Gujarat High Court
observed, “...the happy and healthy laudable policy of transfer of
learned judges from one High Court to another may indirectly and or
inadvertently victimise the poor litigant’s Fundamental Right guar-
anteed under Article 21 of the Constitution and in that view, the State
Government which is custodian of the interest more particularly of
the poor litigants shall have to adopt itself to the transfer policy by
seeing that the Court’s proceedings are not held up for want of trans-
lation and the litigants are not denied cheap and expeditious justice
on the ground of language alone...” Both the High Courts directed
the State Governments to facilitate them with necessary arrangements
> §.P. Gupta v. Union of India, 1981 Supp SCC 87: AIR 1982 SC 149.
74 Supreme Court Advocates-on-Record ord Asn.
Assn. v. Union of India, (1993) 4 SCC 441: : AIR
1994 §C 268.
7° (1992) 2 Guj LR 1472.
7° AIR 1996 Raj 1.
eee 341
for translating the judgment of the lower courts and the docum
ents
attached to them into English.
An incident that took place in 1994 in Indore seat of Madhya Pradesh
High Court points out another dimension of the problem.” The Madhya
Pradesh Official Languages Act permits use of Hindi in High Court
proceedings except in judgments, decrees or orders. The Chief Justice
of Madhya Pradesh High Court, who had been transferred in Kerala,
was not conversant in Hindi. When an advocate submitted petition in
Hindi, the learned judge declined to hear in Hindi and compelled for
submission in English only. A writ petition for quo warranto against
the judge was filed in the High Court. Although the petition was liable
to be rejected because of the clear constitutional provision about trans-
fer of judges to “any High Court”, the development points out the need
for definite policy and procedure in the light of constitutional accom-
modation of Indian languages in High Courts. Taking the Canadian
experience as an analogy, it can be submitted that the most appropriate
way in such circumstance is to allow translation of submission made
in Hindi into English altogether. Unlike the Madhu Limaye case, which
is relating to exclusive use of English language in Supreme Court, here,
use of Hindi is permitted under the law, and hence, Hindi submissions
cannot be rejected. A proper balance between constitutional practice
of transfer of judges and the constitutional policy of permitting indi-
genisation of court language is essential.
The Official Language Commission contemplated large-scale change
in the language of High Courts by greater amount of use of Hindi in
conducting the court proceedings. The Commission suggested, “The
multiple linguistic pattern should be broken and integrated at the High
Court level. In the High Courts, the judgments decrees and orders must
be in Hindi.”” It also recommended for translation of reportable High
Court judgments into respective regional languages. The Fourteenth
Law Commission recommended a pragmatic way of making adequate
preparatory work to precede the change over. The Law Commission
observed, “With the gradual development of Hindi and law and legal
phraseology in Hindi, it is necessary that proceedings in these courts
should be conducted in Hindi instead of English as at present.””? It also
suggested that the ultimate change over to Hindi shall not be made
_until large groups of lawyers and judges proficient in Hindi and Hindi
legal phraseology are available.
is incident,
this whi
kta Karnataka (Kannada Daily) 31-3-1994 reportedofabout
incident, which
ue Justice M.P. High Court, Justice
B26 Ered betots the are that consisted of Chief ;
ULL. Bhat. ie
78 Cited in Fourteenth Law Commission Report, Vol. I, at p. 654.
77 Fourteenth Law Commission Report, Vol. I, at p. 655.
a7Z People’s Language as the Language of Courts
ek ae I IT SE la
On the whole, the policy of “English only” in Supreme Court and
High Courts has thrived largely because of equal disability of Indian
languages to meet the higher courthouse responsibilities, linguistic
diversity, linguistic organisation of federal system and the need to
accommodate the practice of transfer of judges and integrated legal
system. Even in Administrative Tribunals, Consumer Grievance
Redressal Forum, Income Tax Tribunals and Industrial Tribunals
exclusive use of English language for judgment writing has been the
practice® owing to the above factors and also because of Special Leave
Appellate Jurisdiction of the Supreme Court under Article 136.
8.4.2 Language rights and the due process norms under Articles 21
and 22 :
In the post-Maneka® era of due process revolution, the requirement of
justness and fairness in the procedure established by law under Article
21 has cast its own influence on the language regime of judicial and
quasi-judicial proceedings. The Supreme Court in Moti Ram v. State of
. {.P. while laying down the norms of reasonable conditions of bail,
observed that filing of bail application in a language not belonging to
the region or furnishing security by people from a different language
region could not be a justifying ground for rejecting bail application,
as it infringed right to equality. V.R. Krishna lyer, J. observed for the
Court, “Article 350 sanctiors representation to any authority, including
a court, for redress of grievances in any language used in the Union of
India. Equality before the law implies that even a vakalat or affirma-
tion made in any state language according to the law in that state must
be accepted everywhere in the territory of India save where a valid
legislation to the contrary exists.”®
Under Article 22(5), the authority issuing the order for the preven-
tive detention of any person shall “communicate to such person the
grounds on which the order has been made.” The Supreme Court
has, consistently in a series of cases, accepted the contention that
the communication is complete only when the detenu is informed of
the grounds in a language understood by him. In Harikisan v. State
of Maharashtra, where the detenu did not know English and hence,
neither could understand the details of the order that was issued in
*’ However, examination of evidences is conducted in regional language and is

translated into English and then recorded.
81 Maneka Gandhi v. Union of India, (1978) 1 SCC 248: AIR 1978 SC 597, where
the procedure established by law under Art. 21 was required to be just, fair and
reasonable.
*? Moti Ram v. State of M.P., (1978) 4 SCC 47: 1978 SCC (Cri) 485.
Ibid.
* AIR 1962 SC 911.
ee 373
English nor could make effective representation against
the order, it
was held that the requirement Article 22(5) was not complied.
It has
been ruled in a number of cases that to a person not conversant
with
the English language, the grounds must be explained in a language
which he understands. In Hadi Bandhu®, oral explanation of the
grounds of detention to the detenu without supplying to him a trans-
lation in the language understood by him was regarded as not con-
forming to Article 22(5). In Tsering Dolkar®? it was held that the fact that
the detenu’s wife knew the language in which grounds of detention
were framed, while he did not know it, did not satisfy the constitu-
tional requirement when the communication was in such language.
However, as evident from Kubik Darinz®*, when the detenu has a work-
ing knowledge of the language in which grounds are communicated,
there is compliance with the requirement of communication.
The above cases give a significant inference that at least in some
areas a beginning is made to recognise language right as a due process
right itself. Further, the practice of multilingualism in the initial stage
of epistolary jurisdiction in PIL cases, as discussed earlier, substanti-
ates this proposition. |
8.4.3 Language of subordinate courts

Since the Governors of respective States make appointments of District
Judges and other judges of subordinate courts in consultation with
High Courts as per the constitutional requirement, composition of
the Bench does not obstruct the ability of subordinate courts to trans-
act the proceedings of the Court in the official language of the State.
The idea of All-India Judicial Service (AIJS), which was introduced by
the Constitution (Forty-second Amendment) Act, 1976, has not been
implemented mainly due to the multilingual situation in India. The
Law Commission in its 116th Report, while recommending the system
of AIJS, had referred to the objections leveled by the states to the effect
that since accuracy of judicial decisions depends on proper reading
and appreciation of documents and proper assessment of oral evi-
dence, both of which might be in regional language, AIJS was prob-
lematic proposition. But it rejected the objection on the ground that
language barrier was not an insurmountable difficulty as language
; : ; ; iba
85 Surjeet Singh v. Union ofIndia, (1981) 2 SCC 359: 1981 SCC (Cri) 535; Ibrahim
Batti v. State ee iisial (1982) 3 SCC 440: 1983 SCC (Cri) 66: AIR 1982SC 1500. _
86 Hadibandh u Das v. Distt. Magistrate, Cuttack, AIR 1969 SC 43; Har Jas Dev Singh v.
State of Punjab, (1973) 2 SCC 575: 1973 SCC (Cri) 895: AIR 1973 SC 2469.
*” Tsering Dolkar v. Administrator, UT of Delhi, (1987) 2 ace raepease nae os
8 Kybic Darusz v. Union of India, (1990) 1 SCC 568: 1990 ri) 227:
605; nies og: Chowdara pu isle v. State of T.N., (2002) 3 SCC 754: 2002 SCC (Cri)
714,
ee
Sed ee
efficiency could be attained in course of service.” The matter of intro-

ducing AIJS came before National Commission to Review the Working
of the Constitution. After examining the responses received to the
Consultation Paper circulated on the subject and after detailed delib-
erations, the Commission decided that the formation of AIJS would
not be better alternative to the present system. It appears, objection
on ground of multilingual situation in India was responsible for this
development favouring the practice of “people's language as language
of the Court.
Concerning language of subordinate courts, provisions can be
found in Section 137 of Civil Procedure Code, Sections 275 to 279 of
Criminal Procedure Code, 1973, and the Rules of Practice and Official
Languages Acts enacted by respective states. The basic thrust and
trend of development in this sphere are to accommodate the linguistic
interests of people and language policy of the respective states.
Section 137 of Civil Procedure Code allows continuance of pre-
existing language practice of the subordinate courts subject to State
Government's contrary direction. Clause (2) of Section 137 provides,
“The State Government may declare what shall be the language of any
such court and in what character applications to and proceedings in
such courts shall be written.” Various States have passed their Official
Languages Acts declaring State’s official language as language of the
court in addition to English. The general rules framed by the High
Court under Section 122 for the practice of subordinate courts shall not
violate the spirit of Section 137 and also Article 350 of the Constitution
as held in Sarshwati Bai v. Allahabad Bank Ltd by the Allahabad High
Court. In this case the argument that petition submitted in English
shall be rejected in view of the rule that Hindi shall be the language
of'the civil court in Uttar Pradesh was rejected. The Court’s approach
that Article 350 is applicable to allow submission of petition in any
language used in the Union or State is to be understood in the context
of redressal of grievance and cannot be stretched to use a language
followed in distant part of the Union which is unknown in the state
in which it is sought to be used. In L.M. Wakhare v. State®* the Madhya
Pradesh High Court upheld the competence of state to declare more
than one language as official languages of civil courts. But the Court
reasoned that the state law should not defeat the right to the translated
version of documents under Section 137(3).
That language policy in subordinate civil court veers between
extremes of “English only” to “Regional language only” can be seen
*° Law Commission’s One Hundred Sixteenth Report (1986) at p. 10.

° AIR 1963 All 546.
1 AIR 1959 MP 208.
eee ot 375
—“(‘(‘“(‘é RR
by reference to two cases. In Ramayee v. Muniyandi Konar? the
Tamil
Nadu Official Language Act, 1956, which had provided for recording
of evidences in civil and criminal courts in Tamil and for writing of
judgments and orders by criminal courts in Tamil was strictly inter-
preted not to authorise civil courts to write judgments in Tamil. The
Madras High Court strongly observed about judge’s lapse into ver-
nacular arising from his misplaced zeal for mother tongue and held
that judgment rendered in Tamil was no judgment at all and was so
much waste of paper. A statutory change had to create a comfortable
position. As a contrast to unsympathetic approach to the interest of
regional language, there is a Karnataka High Court judgment, which
insisted on strict compliance with the requirement of publishing the
sale proclamation of immoveable property in the language of the
Court, which happened to be Kannada. The Court in Manjamma v. S.N.
Suryanarayana Rao® concluded that in the absence of publicity about
sale, by use of regional language, people did not come to know about
the sale and could not participate in the sale, and hence the property
fetched lesser price, causing grave injustice to the judgment-debtor.
The sale based on proclamation in English was set aside, although
English was additional official language. It is clear from Manjamma
that communicative process involved in the execution of judgment
cannot be carried in a language in which people are not conversant.
Due process requires effective communication at the execution stage
also, for which regional language is the most suitable medium.
According to Clause (3) of Section 137 CPC judicial writing other
than in course of recording of evidence may be in English; but if any
party or pleader is unacquainted with English, a translation into the
language of the Court shall, at his request, be supplied to him. Rule 66
of Karnataka Civil Rules of Practice authorises the Presiding Judge to
employ interpreter when a witness gives evidence ina language not
understood by the Court. Since many of the quasi-judicial bodies and
tribunals are vested with the powers of civil courts and are directed to
follow the procedure thereof, they follow the same language practice.
Criminal Procedure Code, 1973, protects language right of the par-
ties. If the witness gives evidence in the language of the Court, it shall
be taken down in that language. If he gives evidence in any other lan-
guage, it may, if practicable, be taken down in that language, and if it
is not practicable to do so, a true translation of the evidence in the lan-
guage of the Court shall be prepared as the examination proceeds or
in a language
as soon as practicable.** Whenever any evidence is given
% MLJ Reports (1978) at p. 442.

9 (1985) 1 Kar LJ 104.
% S 277 of the Criminal Procedure Code, 1973.
Sa a pe ei in l HE I
person,
not understood by the accused, and he is present in Court in
it shall be interpreted to him in open Court ina language understood
by him. If he appears by a pleader and the evidence is given in a
language other than language of the Court, and understood by the
pleader, it shali be interpreted to such pleader in the language of the
Court2* According to Rule 8 of Chapter VII of Karnataka Criminal
Rules of Practice, 1968, “If the judge or Magistrate does not understand
the language in which the evidence is given or when he cannot inter-
pret it in the language understood by the accused, he may require any
competent person to be the interpreter and record his sworn statement
that he knows the two languages which he has to interpret and that he
will truly and correctly interpret the same.”
On the whole, the legal regime governing language in subordinate
courts has tended towards accommodating the claims of regional lan-
guages in addition to allowing use of English language as expedient in
the background of appellate judiciary’s language practice, multilingual
situation and lack of adequate development of regional languages.
An empirical study about language practice in subordinate courts
has shown that it is only in very negligible number of civil and crimi-
nal cases that the entire judicial proceeding is wholly conducted in
regional language; that most of the pleadings submitted in civil cases
by lawyers are in English whereas FIR and charge sheets filed by the
prosecution side are in regional language; that trial proceedings are
conducted in regional language; that the extent to which oral argu-
ments are submitted in regional language is only 40 per cent; that it is
very rare that a judge renders all his judgments in regional language;
and that availability of physical facilities tilt in favour of continuance
of English. It has been generally viewed by judges of subordinate
courts that:
(a) In the interests of justice and of the common man it is highly
desirable to have more use of regional language at all stages
of subordinate court’s functioning.
(b) The stumbling block for use of regional language in courts is
lack of preparedness in the matter of availability of adequate
legal literature in regional language, readiness of lawyers to
use regional language in pleadings and arguments, avail-
ability of infrastructural facilities like typewriters and ste-
nographers in regional language.
(c) Legal education should promote the cause of regional lan-
guage by equipping lawyers with adequate training to use
regional language in court.
°° §. 279(1) of the Criminal Procedure Code, 1973.

°° §. 279(2) of the Criminal Procedure Code, 1973.
Knowledge system of law in regional language
Sse ae ee eolaanal a osetia a5 rrr 377
(d) There should be some compulsion, motivation and encou
r-
agement for the use of regional language in court.
(e) As the role of legal literature and advocates is crucial in the
administration of justice, a big change should take place seri-
ously in this front.
The National Official Language Commission summarises the factual
position as to language use in subordinate courts as follows, “Broadly
speaking, it would appear that at the lowest rungs of the system viz.
village panchayats and trial courts, civil and criminal, at the taluka
level, the linguistic medium is the regional language. As we go up
the judicial system, English comes to occupy a larger place, although
the exact constituents of the linguistic mixture at this stage seem to
differ quite considerably from State to State, and it would seem that
even within one state there are differences as between districts... It
appears that there has been a progressive trend towards displacement
of English, particularly in Hindi-speaking regions at the middle level
of judiciary.”97
8.5 Knowledge system of law in regional language

The right and duty to know law are the bases for claiming right to
understand law in one’s own language. As a corollary to the maxim,
ignorance of law has no excuse, state has the responsibility of ensuring
knowledge of law for the people by communicating the state will in
the language of people. Although expediencies of the circumstances
like integrated court structure, unified bar, burden of the colonial
past, etc. compel continuance of Anglophonic appellate judiciary, the
need for multilingual translation of laws, law reports and other legal
literature can hardly be underestimated. The desirability of equip-
ping Indian languages with an ability to handle the technical issues
of law by making their vocabulary profound and up-to-date and the
need for establishing organic link between people and the legal sys-
tem through the intimate media of popular language deserve atten-
tion and proper action. Respect for the Constitution and laws can flow
from an informed public opinion that understands them. To a certain
extent, newspapers in regional languages, by reporting the highlights
of landmark judgments, try to fill the gap. The census statistics referred
to above would hint how the very Anglophonic character of the legal
system is an iron curtain that blocks transparency that is essential for
the legal system’s efficacy.
” Official Language Commission Report, at p. 447 cited by Law Commission

Fourteenth Report, Vol. I at p. 649.
r
Es ie li e
the merit
The Law Commission in its Fourteenth Report discussed
and all
of a suggestion for establishing a system under which all laws
regional
proceedings of courts and all law reports are translated into
on
languages and from regional language to Hindi. The Law Commissi
red huge
looked to the mammoth dimension of the work, which requi
offices manned by armies of translators bringing in a situation of
could
nation of translators, and observed, “It is obvious, that even if we
afford to do this at a time, when our whole effort should be directed to
e
nation-building and other essential activities, it would be inadvisabl
to fritter away our energies and resources on such a scheme. Even if
we did embark on such a scheme, it could never achieve the purposes
aimed at by our Constitution.” It is submitted, the long term effect of
making the people and litigants more knowledgeable in their language
about law and its functioning undoubtedly serves the constitutional
purpose of ensuring due process protection, transparency in admin-
istration and effective popular participation in the governance. Since
variety of languages is a distinct and constant cultural construct of the
Indian society, the cost-benefit analysis should address to the policy
of conserving and promoting human resource related to multilingual
situation and avoidance of language loss or language impoverishment
due to undeserved marginalising.
8.6 Conclusions and sugzZestions

Language rights in the context of court proceedings involve immense
human rights dimensions. The Indian constitutional policy relat-
ing to language in courts is influenced by the complexities of multi-
lingual situation, burden/benefit of the colonial past in the form of
Anglophonic legal literature, immediate inability of Indian languages
to substitute English and convenience of English as the link language.
The structure of judicial pyramid has been in coordination with the
language pyramid of the multilingual society in the sense that while
people’s language is used in a broad based manner at the lower rungs,
it becomes less and less as one moves up and “English only” is prac-
ticed at the Apex Court. Although the constitutional plan authorised
Parliament to substitute English by any other language in Supreme
Court, the abstinence from change in this front during the last six dec-
ades reflects serious difficulties involved in the change process. In the
background of widespread anti-Hindi agitation in the South and other
parts of India and the increasing influence of globalisation and inter-
naticnalisation, which use English as the international link language,
the idea of switch over from English to Indian language at the apex
** Law Commission Fourteenth Report, Vol. I at p. 651.

Conclusions and suggestions
e 379
e ee
level is becoming almost irrelevant. However, it is a remarkable devel-
opment that epistolary jurisdiction of the Apex Court can be invoked
in any Indian language at the threshold stage.
Except in few High Courts, in major part of India regional language
has made no entry in High Court proceedings. Integrated judiciary,
unified bar, unprepared position of regional languages and trans-
ferability of judges are some of the factors that continue to obstruct
changes. At the level of subordinate courts some remarkable efforts
have been made in some states to use regional language in court pro-
ceedings as much as possible. Once again, in non-Hindi states the
extent of progress is not satisfactory because of inadequate infrastruc-
ture both physical and intellectual. The constitutional policy of gradu-
ally introducing people’s language at the middle order and allowing
states to decide about medium of language for subordinate courts
can be made successful only by systematic planning and its sincere
implementation.
On the whole, lack of preparedness for use of regional languages is
a serious obstacle. The comfort of continuing a neutral transnational
language in courts should not blind us to the reality that regional
languages are impoverished of flowery crop of legal knowledge and
denied of the ability to handle human-to-human relations in a manner
directly understandable by people because of the relegation of Indian
languages into unimportant position in the courthouse ways. Since the
problems lie at the level of participants of judicial process and agencies
that equip them, a solution at this level should be found and applied
by the State instead of empty sloganeering and emotional talks.
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CHAPTER 9
REGIONALISM, LAW AND SOCIAL

TRANSFORMATION
9.1 Introduction
A vast country like India naturally faces the problem of regional iden-
tities competing with nationalist considerations.’ While national unity
itself is a value, the fact of coexistence of unequal regions with high
amount of socio-economic disparity in various parts of the nation as
a whole and often within the states, invites the value of welfarism for
its solution, by calling for preferential policy. The conflict between
national consideration and regional necessity arising in this process
is one of the problematic factors of constitutional jurisprudence and of
public policy in India.
The Constitution essentially reflects an all-India perspective on
the subject; but accommodates, as an ameliorative measure, centrally
planned/supervised policy of reservation for regions on special con-
siderations. Not satisfied with the constitutional space for regional
preferences, states have gone for job reservation for rural people or for
geographically identified disadvantaged sections of societies within
the state or on the criterion of state domicile or knowledge of official
language of the state. In the educational front, especially in higher
and technical education, state policies have attempted to differentiate
between candidates of state domicile and candidates from other states
in the matter of fee structure and quota of seats. These have been done
Caste, Gender and Culture

' TV. Sathyamurthy, Social Change, Vol. III; Region, Religion,
at p. 29 considers
in Contemporary India (Oxford University Press, New Delhi 1996)
such competition as an enduring feature of Indepen dent India.
382 on
Regionalism, Law and Social Transformatieee
e
ee e ee
in the guise of exercising the power of making reasonable classifica-
tion, and fegulating the admission process from the social justice per-
spective or considerations of service to region. The first principle of
equality has always emphasised equality at the individual level and
logically stood for the criterion of merit and efficiency in determining
the outcome of competition amidst the job/education aspirants. The
attainment of balance between individual claim and group right based
on state’s welfare policy is one of the most difficult tasks the reserva-
tion jurisprudence has ever been facing, and quite fairly resolved by
judiciary. Thus, the two factors that emerge to countervail the region
preference policy are the principles of national unity and consideration
of merit. In fact, merit or efficiency has great worthiness of ensuring
to the people the social benefits of technological development and of
the advancement of the knowledge system. Thus, the problem at hand,
which widely touches upon the life chances and livelihood questions
of millions, needs to be analysed from a holistic perspective and with
a sense of equanimity.
The crucial issues to be debated for the purpose include the basis
and sanctity of national unity as a value; its relevance for avoidance of
prochialism in reservation policy; the intention of Constitution makers
to keep national integration above regional claims; changed socio-eco-
nomic factors that question the continuity of the constitutional policy;
the practice of regionalism pushed through questionable strategies;
and the propriety of judicial approach that uses merit and mobility to
balance with local or institutional claims. The relevance, support and
limitation of federalism to human rights and welfarism will also be
incidentally discussed. _~
9.2 Concept of India as one unit

Vastness of India’s landmass, geographically variant features? that
moulded diverse life patterns and practices, experience of 5000 years
of historical and cultural developments that anchored to local influ-
ences, and region based linguistic, racial and social developments
have contributed to the factor of regional diversity. As viewed by
Jawaharlal Nehru, “The diversity of India is tremendous; it is obvious;
it lies on the surface and anybody can see it. It concerns itself with
physical appearances as well as with certain mental habits and traits.”?
But surpassing the diversities, strong sense of national unity amidst
diversity is ingrained in the cultural outlook, economic life and social
* Himalayan region, Gangetic and Indus belt, North eastern region, Deccan plateau
and Coastal area.
* Jawaharlal Nehru, The Discovery of India (JNM Funds & Oxford University Press,
(New Delhi 1946 rept. 1989) at p. 61.
Concept of India as one unit
eee
383
organisation of Indian people. The factor national unity is defined in
literature.* Reverence to fertile land, admiration to the natural beauty,
respect to holy places, tolerance to fellow communities and love to ani-
mal habitat, most reverent of which is cow, made the people to emo-
tionally consider the land as punyabhumi and espouse an attitude, “The
mother and motherland are greater than heaven.”5
The working of mutually complementary guilds towards a net-
work of national economy, migration of people for trade, occupa-
tion and business, and productive native organisations provided the
much-needed social and economic unity transcending the regional
differences.° While religious acts, organisations and pilgrimages
weaved emotional unity, the all-India political dynasties projected the
national image in the climate of peace. Common epics, philosophy and
folk-culture sinked the differences between communities in spite of
multiplicity of languages and religions. According to Radha Kumud
Mukherji, “A keen, penetrating insight can hardly fail to recognise
that beneath all this manifold variety there is a fundamental unity;
that the diversity itself, far from being a source cv: weakness, is a fertile
source of strength and wealth.”” The support to cultural fraternity has
stemmed from social and economic organisation of the country and
has enriched the emotional attachments and intellectual attainments.®
While cultural unity held the vast country together, bringing ‘ndia
under one political rule during the British period promoted national
integrity. The living and dynamic heritage of the nation enhanced the
moral and mental quality of patriotic living?
Nehru considered that the dream of national unity had occupied
the mind of India since the dawn of civilisation. “That unity was not
4 “He who is one, who is above all colour distinctions, who dispenses the inherent
needs of men of all colours, who comprehends all things from their beginning to end,
let him unite us to one another with wisdom, which is the wisdom of goodness. Ya
ekovarno bahudha sakti yogat; Varnan anekan nihitarto dadhati; Vicaiti cante visvam
adau sa devah; Sa no budhya subhayat samyunaktu.” Cited by Rabindranath Tagore in
Dr. S. Radhakrishnan (Ed.), The Cultural Heritage of India, Vol. | (2nd Edn., Ramakrishna
Mission, Calcutta 1958, 2001) at p. 21 as prayer; also see, Kalidasa, Kumarasambhava, 1-1,
Vishnu Purana Ch. Il-1; “Uttaram yat samudrasya himadraishchaiva dakshinam;
Varsham tadbharatam nama bharati yatra santati.”
; vat,
5 Janani janma bhumischa svargadapi gariyasi.
nd of Indian Culture in S.
6 Nirmal Kumar Bose, The Geographical Backgrou
Radhakrishnan, supra, n. 4 at p. 3.
shi cas
7 Radha Kumud Mukherji, Fundamental Unity of India at p. 23.
und of Indian Culture in S.
8 Nirrnal Kumar Bose, The Geographical Backgro
. |
Radhakrishnan, supra, n. 4 at pp. 3, 11.
hundred coulis
® Patriotic songs have emphasised, “Despite our having
ever; united emotio nally, we march
religions, we, the people of Bharat are one for
in General Secy., sso Minorities
forward.” A Kannada song cited by Rama Jois, j.
Kant 457 at p. 557 (8B).
Protection Committee v. State of Karnataka, ILR (1989)
384 Regionalism, Law and Social Transformation
e
OF e
of
conceived as something imposed from outside, a standardisation
n its
externals or even of beliefs. It was something deeper and, withi
fold, the widest tolerance of belief and custom was practiced and every
variety acknowledged and even encouraged.”° Rajni Kothari looks to
the historical process that beaded India’s socio-cultural diversity into a
thread of unity through tolerance, and observes, “The result of all this
has been a continuous pattern of coexistence between diverse systems
and lifestyles; persistence of local subcultures and primary loyalties;
an intermittent, unstable and discontinuous political center; and an
essentially plural social tradition in which the governmental center
provided only one among many centers."
Unity in diversity is a concept that requires an imaginative handling
and deft management of the claims of diverse communities, which are
largely put forward for the sake of their homogenous environment.”
Underplaying of these claims by transforming the idea of independent
existence of these communities into interdependent ones goes a long
way in avoiding a situation of forming conglomeration of diversities
and in building up a harmonious society. Socio-geographical diver-
sities are either boon or bane depending upon how they are treated.
Hinging of economic opportunities and benefits solely to geographi-
cal factors should be critically looked from the larger perspectives of
equal human personhood of all and nation’s unity.
The idea of India as op= unit has been galvanised in the constitu-
tional text and case law. The very first phrase of the Constitution, “We
the People of India”, reflects the totality of Indian masses in whose
name the Constitution has been enacted. Preamble’s reference to
unity and integrity of the Nation and fraternity sets the laudable goal
in clear terms. Promotion of fraternity for upholding dignity of indi-
vidual and unity of the nation speaks about functional significance
of fraternity. Unity of the country is further emphasised in the notion
of single citizenship. Prohibition of discrimination amidst citizens on
grounds of place of birth in the matter of admission to educational
institution and on grounds of residence and place of birth in the matter
of public employment has promoted the egalitarian ethos needed for
national unity. The libertarian atmosphere for national integration is
built in every citizen’s freedom of movement throughout the territory
of India and right to reside and settle in any part of India according to
"0 Jawaharlal Nehru, supra, n. 3 at p. 62.

"' Rajni Kothari, State Against Democracy: In Search of Humane Governance (Ajanta
Publications Delhi 1988) at pp. 155-56; also see, Rasheeduddin Khan (Ed.), Composite
Culture of India and National Integration (IIAS and Allied Publishers, New Delhi 1987).
2 Ajay K. Mehra, Unity and Diversity in India: Two Ends of aContinuum or a Converging
Horizon? in Imtiaz Ahmed (Ed.), Pluralism and Equality (Sage Publications, New Delhi
2000) at p. 118. }
Conce
© AESpt of India
6SAS as EEone unit
TANS: it AS Ae ei i, ee 385
his choice [Articles 19(1)(d) and (0). As MP. Jain views, “These rights
underline the concept that India is one unit so far as the citizens are
concerned.”> With one single nationality, there could be hardly jus-
tifying reasons for fissiparous forces. As the State Reorganisation
Committee had observed:
“Tt is the Union of India that is the basis of our nationality. It is in
that Union that our hopes for the future are centered. The states are
but the limbs of the Union, and while we recognise that the limbs must
_be healthy and strong and any element of weakness in them should be
eradicated, it is the strength and ability of the Union and its capacity to
develop and evolve that should be the governing consideration of all the
changes in the country.’
In addition to the general policy of welfare state enshrined in Part IV of
the Constitution, particular duty of the State to avoid regional imbal-
ances is laid down in Article 38(2), which states, “The State shall, in
particular, strive to minimise the inequalities in income, and endeav-
our to eliminate inequalities in status, facilities and opportunities, not
only amongst individuals but also amongst groups of people residing
in different area or engaged in different vocation.” While the policies
of equality and equity are to operate in a mutually complementary
manner in this sphere, the ultimate aim of constructing harmonious
and unified society is implicit in the provision. Referring to competi-
tive rat race of capitalistic development keeping the poor further poor,
V.K.R.V. Rao observed, “Unless this trend towards a dual society with
its vulgar rich and sullen poor and the juxtaposition of affluence with
poverty is rapidly ended and differences in consumerist life styles low-
ered to within the limits of mass psychological tolerance, no degree of
statistical economic growth will prevent the growth of social divisive-
ness and disharmony and the threat it poses to national integration
and social stability.”
The approach that national unity shall be promoted through duty
conscious society and individuals is clear in Article 51-A, which pre-
scribes the Fundamental Duty that it shall be the duty of every citizen
of India (a) to cherish and follow the noble ideals which inspired our
national struggle for freedom; (b) to uphold and protect the sovereignty,
unity and integrity of India; (c) to defend the country and render
national service when called upon to do so; (@) to promote harmony
and spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities.
2005) at p. 1026.
3 MP. Jain, Indian Constitutional Law (5th Edn., Wadhwa, Nagpur
para 876.
4 Report of the States Reorganisation Commission (1955) at p. 23(b), 1985) at
Rao,National Integration (Bharatiya Vidyabhavan, Bombay
15 V.K.RV.
p. 167.
386 Regionalism, Law and Sacial Transformation
a e
e
Citizen’s duty towards excellence in all spheres of individual and col-
lective activity so that the nation constantly rises to higher levels of
endeavour and achievement also contributes to the cause of national
unity, since full-fledged and all-round developed nation would emerge
through this effort. The overall constitutional policy of strong centre
and enormous emergency powers also safeguard the national inter-
ests against secessionist and fissiparous tendencies. In Pradeep Jain’®
P.N. Bhagwati, J. observed for the Supreme Court:
“The entire country is taken as one nation with one citizenship and
every effort of the Constitution makers is directed towards emphasising,
maintaining and preserving the unity and integrity of the nation. Now
if India is one nation and there is only one citizenship, namely, citizen-
ship of India, and every citizen has a right to move freely throughout the
territory of India and to reside and seitle in any part of India, irrespec-
tive of the place where he is born or the language which he speaks or the
religion which he professes and he is guaranteed freedom of trade, com-
merce and intercourse throughout the territory of India and is entitled
to equality before the law and equal protection of the law with other
citizens in every part of the territory of India, it is difficult to see how
a citizen having his permanent home in Tamil Nadu or speaking Tamil
language can be regarded as an outsider in Uttar Pradesh or a citizen
having his permanent home in Maharashtra or speaking Marathi lan-
guage be regarded as an outsider in Karnataka. He must be held enti-
tled to the same rights as 2 citizen having his permanent home in Uttar
Pradesh or Karnataka, as the case may be. To regard him as an outsider
would be to deny him his constitutional rightstand to derecognise the
essential unity and integrity of the country by treating it as if t were a
mere conglomeration of independent States.”
9.3 Problem of regionalism and impermissibility of regional

barriers
An approach of favouring the local community at the cost of inter-
ests of people living in distant places can be called as regionalism. It
believes in confinement of the resources and opportunities available
in a state to the people living in the state. The reasons given for such an
approach are that the State invests public fund generated in the state
for the benefit of people of that state; that people of the state aspire
for and expect availing of those opportunities; that the people of the
state know the local condition for rendering more effective service;
and that the unemployment problem of the people of the state can be
better solved only with “locals preferred” rule. Need for avoidance of
heartburn amidst the locals, lack of serious commitment on the part
© Pradeep Jain v. Union of India, (1984) 3 SCC 654: AIR 1984 SC 1420.
Problem of regionalism and impermissibility of regional barriers 387
= EASTER sO imal ue a dt ii dle el
of outsiders and solution to the problem of cultural maladjustment are
also the reasons attributed to the acceptance of such policy. The effort
of identifying the interests of the community with specific region or
territory is influenced partly by the fear complex of losing economic
opportunity, partly by stagnant complacency arising from idleness
and partly by the emotional attachment to the physical surrounding.
Disinclination to move to new places in search of opportunities of
livelihood and sense of security derived from living with one’s own
community members are also the reasons to claim the locally avail-
able opportunities as exclusive entitlement of the local community.
But when the access to opportunities is thrown to open competition,
and parochialism coupled with mediocrity is put to test to compete
with merit and efficiency, the falsity of the claim based on localism is
simply hoisted. The psychological difference between “we” and “they”
largely reflect the economic considerations, identity conflicts, unsatis-
factory position of different levels of development of states and differ-
ences in the preparedness on the part of people to move for the sake
of employment from one’s “own” state to another state. The emotional
disentanglement between the Assamese and Bengalis in Assam’ and
between indigenous people and advanced sections of the society” are
examples of region-based dichotomies. The linguistic differences are
sometimes employed as camouflage for regional considerations, and
are advanced as arguments for denial of opportunities to other lin-
guistic groups.’ Far more important is the political gain of the parties
and leaders in getting the mileage of electorate support of the inno-
cent masses through glorifying the regional factors. “Sons of the soil”
theory, which believes in making the locally available opportunities
exclusively confined to the locals, is a product of these considerations.
As the name suggests, it is the tie with the soil or local environment
that exclusively decides one’s entitlement. It is centering on the con-
cept of homeland, and distinguishes between original inhabitants and
outsiders coming from other states. Taken to the extreme limit, the
desperate rivals swear by their hyper-parochial credo for excluding
the outsiders.”°
However, the generous outlook of Indian culture is opposed to such
partisan approach. Viewed from the angle of human rights, welfare
policy and universalism, the pro-regionalism arguments are shallow,
demanded
7 Inearly 1980s the rift between the two groups had become serious, and
Independence (2nd Edn.,
political solution. See, Paul Brass, The Politics of India Since
Cambridge University Press, London 1995) at pp. 106-09.
Sixth Schedules to
” This has been taken care of by elaborate scheme in Fifth and
371-G.
the Constitution and Arts. 371, 371-A, 371-D and
19 See VN. Sunanda Reddy v. State of A.P., 1995 Supp (2) SCC 235: AIR 1995 SC 914.
2 Sarkaria Commission, 1.4.25.
388 and Social Transformation
Regionalism, LawEA
sa ac cna RNR cE _a ie E
ly against pref-
chauvinistic and arbitrary. Constitutional policy is clear
er educational
erence of locals in the matter of providing access to high
these matters
opportunities and economic opportunities because in
ng the best
the criterion for selection is adherence to merit and getti
of
out of the lot. But when economic and social backwardness of a class
people is attributable to region as a whole, only for remedial purpose
of bringing regional balancing, on the basis of authority of law enacted
by Parliament and that too for a temporary period, some preferential
policy is envisaged. The views of Constitution makers, the working
of constitutional and legal provisions, and the line of constitutional
development are against regionalism in its core sense.
Shri Jaspat Roy Kapoor, in support of elimination of residence-
based discrimination in'matters of public employment had observed
in the Constituent Assembly, “There being, only one citizenship for
the whole country, it should carry with it the unfettered right and
privilege of employment in any part and in every nook and corner
of the country ... Every citizen of the country must be made to feel
that he is citizen of the country as a whole and not of any particular
province where he resides. He must feel that wherever he goes in the
country, he shall have the same rights and privileges in the matter
of employment as he was in the particular part of the country where
he resides.”** Ridiculing the cry “Bengal for Bengalis”, “Madras for
Madrasis” he emphasised the interests of unity and solidarity of the
country. He referred to the provincial measures imposing residence
requirement for a period varying between seven and 52 years’, and
expressed fears about disunity. However, he was agreeable for impos-
ing conditions like possession of adequate knowledge of local condi-
tion before recruitment. Shri K.M. Munshi argued for exclusive power
on the part of prescribing residential requirements in the hands of
Parliament.” Dr. B.R. Ambedkar regarded the residence requirement
for jobs in particular state as really subtracting from the value of com-
mon citizenship enshrined in the Constitution, and held the argument
against residence qualification of job seekers for public employment as
perfectly sound argument. However, he was not totally averse to some
accommodation of regional consideration. He said:
“At the same time, it must be realised that you cannot allow people
who are flying from one province to another, from one State to another,
as mere birds of passage without any roots, without any connection with
that particular province, just to come, apply for posts and, so to say, take
the plums and walk away. Therefore, some limitation is necessary.’”?
1 CAD, Vol. VII, at p. 676.

2 Ibid, at p. 695.
*. Ibid, at p. 700.
Equality in matters of employment: sons of the soil theory
S E SRN SeveD eA 389
In order to bring uniform principle about residential requirement in
the place of divergent state practices, he suggested for investment of
power on the subject in Parliament. The outcome of this thinking can
be found in the incorporation of Clause (3) to Article 16, which will be
discussed later in detail. Impermissibility of regional barriers for citi-
zen’s access to educational, job and economic opportunities is, subject
to some exceptions, clear in the Constitution. Articles 15(1) and (2) rule
out discrimination based on place of birth in the treatment of citizens.
Right of mobility and residence in any part of India inherently presup-
poses absence of regional barriers. The connection between Inter-State
mobility and equality of treatment of all persons by the Government
within the state irrespective of the question of residence is recognised
even in constitutional systems, which do not specifically recognise
freedom of movement.* Sarkaria Commission has warned about dan-
gers of homeland concept arising from regional feeling:
“If a particular community religious or linguistic group claim one
region of the country as its homeland, it generates antagonism of other
communities or groups both within that region and elsewhere. For, the
very idea of homeland within a country implies a pernicious discrimi-
nation between the so-called original inhabitants or the ‘sons of the soil’
and the so-called ‘immigrants’ or outsiders from other states. Practice
and promotion of such unhealthy ideas eventually lead to creation of
two or more classes of citizens all over the country.’
The guarantee of freedom of trade, business and occupation and pro-
fession under Article 19(1)(g) can be successful only with removal of
residence-based discrimination. Instead of discrimination, inviting the
foreign and other investors has become order of the day. The categori-
cal statement in Article 301 to the effect that trade, commerce and inter-
course shall be free throughout the territory of India represents India’s
position as single economic unit without state barriers. However, in
the course of reorganisation of states, for accommodating the special
interests of backward regions, some provisions for preferential policy
are envisaged as exceptions. Articles 371, 371-A, 371-D, and 371-G and
Schedules V and VI give some scope for regional preferences, about
which discussion will be conducted later.
9.4 Equality in matters of employment: sons of the soil theory

Equal opportunities in matters of public employment and other eco-
nomic opportunities irrespective of the claimant's residence goes a
on
2. Shapiro v. Thompson, (1969) 394 US 618 where right against discrimination
oyment
account of domicile was invoked to confer equal welfare rights like unempl
benefit and right to mobility in USA.
%. 1.4.25 at p. 16.
390 Regionalism,aLaw and Secial Transformation
eee aSa igre DL OLE tS I IIS
long way in eliminating insecurity and in infusing self confidence
that the world is quite wide. Residence-based discriminations are not
only irrelevant but also invidious as they unnecessarily and wrongly
divide the society into uncompromising factions with tendencies to
retaliation in each state.
9.4.1 Specific constitutional provisions

Under Article 16(2), residence is a prohibited ground of discrimination
by the State in the matter of public employment. The intention here is
to make every office or employment open and available to every citi-
zen, and inter alia to make offices or employment in one part of India
open to citizens in all other parts of India.” Article 16(3) states:
“Nothing in this Article shall prevent Parliament from making
any law prescribing, in regard to a class or classes of employment or
appointment to an office under the Government of, or any local or other
authority within, a State or Union Territory, any requirement as to resi-
dence within the State or Union Territory prior to such employment or
appointment.”
The purpose and implication of this provision were explained by
M. Hidayatullah, CJI, “Realising, however, that sometimes local senti-
ments may have to be respected or sometimes an inroad from more
advanced States into less developed States may have to be prevented,
and a residential qualificetion may, therefore, have to be prescribed,
the exception in Clause (3) was made.””7
Under Article 35(a) the power of prescribing residential qualifi-
cation for public employment is conferred upon Parliament but is
denied to the Legislature of the States, notwithstanding anything in
the Constitution, and under (b) any law in force immediately before
the commencement of the Constitution in respect to the matter shall
subject to the terms thereof and subject to such adaptations that may
be made under Article 372 is to continue in force until altered or
repealed or amended by Parliament. The legislative power to create
residential qualification for employment is thus exclusively conferred
on Parliament. Parliament alone can make any law, which prescribes
any requirement as to residence within the State or Union Territory
prior to employment or appointment to an office in that State or Union
Territory. In practice, this is the strongest protection against partisan
approaches by the states. The only action, which Parliament has taken
under Article 16(3) has been the enactment of the Public Employment
(Requirement as to Residence) Act, 1957. There is, therefore, at present
; ibe Naresimha Rao v. State of A.P., (1969) 1 SCC 839: AIR 1970 SC 422, para 5.
Ibid.
Equality in matter of employment: sons of the soil theory
Spe pa ek pe s ES RSS RN: a ae, il
391
no parliamentary enactment permitting preferential policies based on
residence requirement except in the case of Andhra Pradesh, Manipur,
Tripura and Himachal Pradesh where the Central Government has
been given the right to issue directions setting residence requirements
in the subordinate services.
Yet, in the face of Article 16(2), some of the States are adopting “sons
of the soil” policies prescribing reservation or preference based on
domicile or residence requirement for employment or appointment to
an office under the Government of a State or any local or other author-
ity or public sector body or any other corporation which is an instru-
mentality or agency of the State.?* Prima facie this would seem to be
constitutionally impermissible.
_ In A.V.S. Narasimha Rao Article 16(3) was interpreted as to provide
for exception to the residents of state as a whole and not residents
of particular region.” Accordingly, special provision for Telangana
area under A.P. Public Employment (Requirement as to Residence)
Rules, 1959 was struck down as unconstitutional. In order to enable
region-wise reservation, Article 371-D was incorporated through a
Constitutional Amendment in 1973. The genesis of the provision is
traceable to the demand for separate Telangana state and the cry of
regional disparity. It has the basic purpose of promoting speedy devel-
opment of the backward areas of the State of Andhra Pradesh, to bring
balanced development of the state as a whole, and to provide equitable
distribution of opportunities to different areas of the State. According
to Article 371-D, the President may by order made with respect to the
State of Andhra Pradesh provide, having regard to the requirement of
the State as a whole, for equitable opportunities and facilities for the
people belonging to different parts of the State in the matter of public
employment and in the matter of education, and different provisions
may be made for various parts of the State (Clause 1). Such order may
require the State to classify civil posts with reference to different cad-
res and parts of the State and provide for allotment of them according
to the principles and procedures formulated for the purpose [Clause
Karnataka Government has acted upon Sarojini Mahishi Committee Report

to prefer residents of Karnataka knowing official language of the State in public
;
employment.
, The
2. AVS. Narasimha Rao v. State of A.P., (1969) 1 SCC 839. The Court observed
ar part
claim that Parliament can make a provision regarding residence in any particul
words any
of a State would render the general prohibition lose all its meaning. The
have been said more
requirement’ cannot be read to warrant something, which could
its duration rather than
specifically. These words bear upon the kind of residence or
that the Constitution as it stands,
its location within the State. We accept the argument
ation and itis impossible
speaks of a whole State as the venue for residential qualific
residence in districts, taluqas,
to think that the Constituent Assembly was thinking of
cities, towns or villages.”
ormation
Transfhi
andASacialMIO,
392
se Sa, Stel. ANLaw 3
Regionalism,
2(b)]. It may provide for direct recruitment to posts in any local cadre
under the State Government or local authority and also for the purpose
of admission to any University within the State [Clause 2(0)]. It may
also specify the conditions subject to which preference or reservation
shall be given or made to or in favour of candidates who have resided
or studied for any specified period in the concerned local area in the
direct recruitment to the cadres or admission to University [Clause
2-C]. For establishing Administrative Tribunal to deal with matters
relating to appointments, promotion, seniority and service matters,
power is conferred under Clause (3). The Administrative Tribunal’s
orders are enforceable only confirmation by the State Government.
While the High Court’s power of review upon the Tribunal is removed
under Clause (7), the Supreme Court in P. Sambamurthy*, by applying
basic structure doctrine, has restored High Court’s power of review.
There is an overriding clause about the relation of Article 371-D with
other provisions of the Constitution (Clause 10), the fate of which is not
yet tested with the touchstone of basic structure doctrine.
Article 371 makes special provision for development of certain parts
of Maharashtra and Gujarat, for equitable allocation of funds for devel-
opment of these areas, and for an equitable arrangement providing
adequate facilities for technical education and vocational training, and
adequate opportunities for employment in services under the control
of the State Government, i>-respect of all the said areas, subject to the
requirement of the State as a whole.
The general policy underlying Articles 371-A and 371-G with regard
to Nagaland and Mizoram is to abstain from interfering with the reli-
gious and social practices, customary law and procedure, ownership
and transfer of land, civil and criminal law administration, and auton-
omy about regional councils. Other articles in this series in connection
with Sikkim, Assam, Manipur, Arunachal Pradesh and Goa provide
for continuation of the structure of Legislativé Assembly and other
transient measures. They do not provide for regional preference rule.
9.4.2 Judiciary on regional preference rule in public employment

Now, some of the prominent judicial pronouncements on regional pref-
erence rule in the matter of access to public employment can be consid-
ered. In State of Maharashtra v. Raj Kumar?" the State Government had
* P. Sambamurthy v. State of A.P., (1987) 1 SCC 362: AIR 1987 SC 663.

*! (1982) 3 SCC 313: 1983 SCC (L&S) 11; following this decision, the Supreme Court in
V.N. Sunanda v. State of A.P., 1995 Supp (2) SCC 235: AIR 1995 SC 914, made a combined
application of Arts. 14 and 16(1) to quash a state order which gave a “plus advantage’of
5 per cent marks to candidates seeking public employment under the state, who had
passed their graduation in Telugu medium.
Equal
eeity in MRR
matters of employment: sons of the soil theory
HARES RUE RISES STE ipa ate ariel 393
enacted a rule whose object was to take officers who had full
knowl-
edge of rural life, its problems, aptitudes, and working of the people
in villages; the suitability for working as officers in the rural areas
so
as to be materially useful and to make a constructive contribution to
the upliftment of rural life. In order to achieve this purpose a rule was
made that a candidate coming from the rural areas will be a rural can-
didate and he must have passed SSC examination which is held from
a village or a town having only a “C” type Municipality. This rule,
however, when translated into action failed to fulfil or carry out the
object sought to be achieved because as the rule stood any person who
may not have lived in a village at all could appear for SSC examination
from a village and yet become eligible for selection in the competitive
examination. Affirming the High Court decision the Supreme Court
held that there was no nexus between the classification made and the
object, which is sought to be achieved, as a result of which the rule
was clearly violative of Articles 14 and 16 of the Constitution of India.
Another infirmity of the rules was that any person who had passed
the SSC examination as a rural candidate had to be given particular
weightage by the Public Service Commission by awarding 10 per cent
marks in each subject for such a candidate. The rules also provided
that viva-voce Board would put relevant questions to judge the suit-
ability of candidate for working in rural areas and to test whether or
not they have sufficient knowledge of rural problems. In such a situa-
tion there was absolutely no occasion for making an express provision
for giving weightage which would virtually convert merit into demerit
and demerit into merit and would be per se violative of Article 14 of
the Constitution as being an, impermissible classification. The rule of
weighfage as applied in this case was regarded as manifestly unrea-
sonable and wholly arbitrary and could not be sustained.
In Kailash Chand Sharma v. State of Rajasthan? at issue was constitu-
tionality of Rajasthan Panchayati Raj Rules, 1996, which provided for
weightage to residents of Districts and Rural areas of District in the
form of bonus marks in the appointment of primary teachers with-
out proper criterion for identification of rural candidate. Upholding
the High Court judgment, the Supreme Court nullified the weight-
age rule as unconstitutional on ground of violating Articles 14 and
16. Regarding the argument about preference for rural benefit to over-
come rural backwardness, the Court observed:
“We have no doubt that such a sweeping argument which has the
overtones of parochialism is liable to be rejected on the plain terms of
Article 16(2) and in the light of Article 16(3). An argument of this nature
flies in the face of the peremptory language of Article 16(2) and runs
32 (2002) 6 SCC 562: 2002 SCC (L&S) 935.

Sl 2 ea en SNR, SONS RN aE
ity of
counter to our constitutional ethos founded on unity and integr
the nation. Attempts to prefer candidates of a local area in the State were
nipped in the bud by this Court since long past. We would like to reit-
erate that residence by itself—be it be within a State, region, district or
lesser area within a district cannot be a ground to accord preferential
treatment or reservation, save as provided in Article 16(3). It is not pos-
sible to compartmentalise the State into districts with a view to offer
employment to the residents of that district on a preferential basis.”
It was argued that by facilitating selection of local candidates to serve
the panchayat run schools, the State had acted in furtherance of the
goal to impart education because rural candidates would be more
effective as primary school teachers and more suitable for the job and,
therefore, the classification was grounded on considerations having
nexus with the object sought to be achieved and was not merely related
to residence. The Court viewed that this plea laid undue accent on the
dialect theory without factual foundation. The assertion that dialect
and nuances of the spoken language varies from district to district
was not based upon empirical study or survey conducted by the State.
Not even specific particulars were given in this regard. The Court rea-
soned that to prefer the educated people residing in villages over those
residing in towns, big or small of the same district, on the mere suppo-
sition that the former (rural candidates) will be able to teach the rural
students better would only amount to creating an artificial distinction
having no legitimate conrection to the object sought to be achieved. It
would then be a case of discrimination based primarily on residence,
which is prescribed by Article 16(2). The criterion to identify a candi-
date as rural was also defective since all persons passed the requisite
examination from rural area were to be considered as rural. The Court
gave prospective effect to the judgment in providing the remedy.
In Sreedhara S. v. State ofKarnataka> the constitutionality of Karnataka
Civil Services (General Recruitment) Rules, 1976, Rule 3(B) providing
for weightage in favour of rural candidates was at issue. Single Judge
of Karnataka High Court had struck down the rule as ultra vires.
However, appointments already made till the rule was struck down
were protected. Interim order passed by Division Bench, in appeal,
stated that any appointments to be made thereafter would be subject
to the final decision in the appeals, and the State Government would
obtain an undertaking from the appointees so that they cannot claim
any equity on the basis of such appointments. Subsequent direction
extending said protection in relation to selection and appointments
made during the pendency of appeal given by Division Bench while
dismissing appeal was held by the Supreme Court as illegal.
* (2002) 9 SCC 441: AIR 2002 SC 2459,

“Locals only” rule in admission to educational institutions
CN ere ethan pein's Sesoeepeneay vinnie ete adel 395
In the above cases (Rajkumar, Kailash Chand and Sreedhara) the
regional preference rule had basic infirmity in that it could not make
a case for representing a class identifiable as backward. In the heart of
the impugned rules there was “sons of the soil” theory, which could
not get constitutional sanction. The adverse impact of the “sons of the
soil’theory has been impressively summed up by P.N. Bhagwati in
Pradeep Jain, a case relating to admission to medical education, with a
tone of caution:
“We allowed ‘sons of the soil’ demands to develop claiming special
treatment on the basis of residence in the concerned State, because rec-
ognising and conceding such demands had a populist appeal. The result
is that ‘sons of the soil’ claims, though not altogether illegitimate if con-
fined within reasonable bounds, are breaking as under the unity and
integrity of the nation by fostering and strengthening narrow parochial
loyalties based on language and residence within a State. Today unfor-
tunately, a citizen who has his permanent residence in a State entertains
the feeling that he must have a preferential claim to be appointed to an
office or post in the State or to be admitted to an educational institution
within the State vis-a-vis a citizen who has his permanent residence in
another State, because the latter is an outsider and must yield place to
a citizen who is a permanent resident of the State, irrespective of merit.
This, in our opinion, is a dangerous feeling which, if allowed to grow
indiscriminately, might one day break up the country into fragments,
though, as we shall presently point out, the principle of equality of
opportunity for education and advancement itself, may justify, within
reasonable limits, a preferential policy based on residence.”
9.5 “Locals only” rule in admission to educational institutions

Education is an important social activity that prepares the children
for better future life, equips with professional skill and enables the
children to enter into competitive life and gainful employment with
adequate confidence. Apart from providing opportunities of develop-
ing students’ personality, it has enormous economic dimensions in
terms of both inputs and benefits. As President A.PJ. Abdul Kalam
puts it, “Education is the most important element for the growth and
prosperity of a nation.”34 The providers and receivers of educational
service as well as the policy makers regard professional education as
economic opportunity. Over the years, Courts have recognised the eco-
nomic component of it and tried to maintain some modicum of justice
of
instead of leaving it to the vagaries of market forces and competence
are
economic power holders2* Considerations of regional preferences
on in
issi n of Education
Dr. A.PJ. Abdul Kalam, Missio
19-3-2006, at p. 33.
i The Week,¢, 7
4
SCC 481: AIR 2003 SC 355;
> TM.A. Pai Foundation v. State of Karnataka, (2002) 8
of Karnata ka, (2003) 6 SCC 697: AIR 2003 SC 3724;
Islamic Academy of Education v. State
e
Oe e e
opportunity
invoked in this sphere to make the scarce and valuable
basis of expectation
available to the children of the region, and on the
ntageously
that the services of professional graduates might be adva
stment and
used for the benefit of the region as a return for the inve
ook of generos-
efforts put for the education. On the other hand, an outl
ing
ity and universalism is expected of an egalitarian framework flow
two factors,
from the Constitution. Resolution of tension between these
which posed significant challenges of law-society interaction, is one of
the themes around which case law has centered.
For the purpose of convenience, the situations may be classified and
discussed in four heads:
(i) concession to candidates possessing state domicile or state
residence in admission and tution fee;
(ii) requirement of domicile or residence in state for certain
number of years as a qualifying condition; 3
(iii) compartmentalisation of regions, districts or geographical
areas and allocation of seats on that basis; and
(iv) reservation of certain percentage of seats to the students of
the same institution or university.
9.5.1 Fee disparity

The legitimacy of State interest in providing concession to candidates
of the State was recognisid explicitly in one of the early decisions of
the Supreme Court in D.P. Joshi case**. The rule impugned in this case
was a rule made by the state of Madhya Bharat for admission to the
Mahatma Gandhi Memorial Medical College, Indore providing that
no capitation fee should be charged for students who are bona fide res-
idents of Madhya Bharat; but, for non-Madhya Bharat students, there
should be a capitation fee of Rs 1300 for nominees and Rs 1500 for oth-
ers. The expression “bona fide resident” was defined for the purpose
of this rule to mean, inter alia, a citizen whose original domicile was
in Madhya Bharat, provided he had not acquired a domicile elsewhere
or a citizen whose original domicile was not in Madhya Bharat but
who had acquired a domicile in Madhya Bharat and had resided there
for not less than five years at the date of the application for admission.
The constitutional validity of this rule was challenged on the ground
that it discriminated between students who were bona fide residents
of Madhya Bharat and students who were not, and since this discrimi-
nation was based on residence in the State of Madhya Bharat, it was
violative of Article 14 of the Constitution. The Court, by a majority of
P.A. Inamdar v..State of Maharashtra, (2005) 6 SCC 537.

*° D.P. Joshi v. State ofM.B., AIR 1955 SC 334.
“Locals only” rule in admission to educational institutions 397
SSpskconastncs ~.cuchvetbap eneatadt sideshows epi ail a lilt rrr
four against one, held that the rule was not discriminatory as being in
contravention of Article 14, because the classification between students
who were bona fide residents of Madhya Bharat and those who were
not was based on an intelligible differentia having rational relation to
the object of the rule. Venkatarama Ayyar, J., speaking on behalf of the
majority observed’:
“The object of the classification underlying the impugned rule was
clearly to help to some extent students who are residents of Madhya
Bharat in the prosecution of their studies, and it cannot be disputed that
it is quite a legitimate and laudable objective for a State to encourage
education within its borders. Education is a State subject, and one of the
directive principles declared in Part IV of the Constitution is that the
State should make effective provisions for education within the limits of
its economy (Vide Article 41). The State has to contribute for the upkeep
and the running of its educational institutions. We are in this petition
concerned with a Medical College, and it is well known that it requires
considerable finance to maintain such an institution. If the State has to
spend money on it, is it unreasonable that it should so order the edu-
cational system that the advantage of it would to some extent at least
enure for the benefit of the State? A concession given to the residents of
the State in the matter of fees is obviously calculated to serve that end,
as presumably some of them might, after passing out of the College, set-
tle down as doctors and serve the needs of the locality. The classification
is thus based on a ground which has a reasonable relation to the subject-
matter of the legislation, and is in consequence not open to attack.”
In Mohini Jain>*, the Court did not disturb the D.P. Joshi rule and
decided the case on the issue of discrimination between government
seat and management seat in the matter of fee. In Unni Krishnan®, the
Maharashtra statute, which charged double fee upon non-Maharash.
tra students, was upheld as a concluded matter after D.P. Joshi. The
Karnataka Government formulated a “locals only” rule in 1995 to
totally exclude the claims of non-Karnataka students both in free
seat and payment seat categories. The Supreme Court in T.M.A. Pai
Foundation case (III) stayed the rule and laid down that among the
payment seats 15 per cent of seats shall be set aside for non-Karnataka
students. In Pradeep Jain, reservation for local candidates upto 70 per
cent of seats at the MBBS level was approved in continuation of D.P.
Joshi rule. Thus, joshi principle has cast its impact for more than five
decades. The principle does not rule out the opportunity for admission
but only permits higher fee structure for outside candidate, and relies
7 At p. 340 of AIR.
SC 1858.
36 Mohini Jain v. State of Karnataka, (1992) 3 SCC 666: AIR 1992
1993 SC 2178.
9 Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645: AIR
5 SCC 220: AIR 1995 SC 2431.
4“ TM.A. Pai Foundation v. State of Karnataka, (1995)
a a A
medical
on economic reasons of state’s investment and advantages of
service to the residents of the state.
9.5.2 Domicile requirement as absolute condition

In N. Vasundara v. State of Mysore, constitutional validity of the
requirement of domicile in the state for a period of 10 years’ for candi-
dates claiming admission to medical colleges was challenged as violat-
ing Article 14. The State argued that the classification was reasonable
because by the impugned rule the State has attempted to select those
students who are more likely to serve as doctors in the State after they
pass out. Although the Court had conceded that the object of selection
for medical education is to get best of the talents, it recognised the
inherent power of the state to classify, keeping in mind benefit to the
state. It was observed: .
“The need and demand for doctors in our country is so great that
young boys and girls feel that in medical profession they can both get
gainful employment and serve the people. The State has therefore to
formulate with reasonable foresight a just scheme of classification for
imparting medical education to the available candidates which would
serve the object and purpose of providing broad-based medical aid to
the people of the State and to provide medical education to those who
are best suited for such education. Proper classification inspired by
this consideration and selection on merit from such classified groups,
therefore, cannot be chalienged on the ground of inequality violating
Article 14."
A remarkable development took place in Pradeep Jain case, limiting
the scope of wholesale reservation in favour of residents of particu-
lar state. The Supreme Court, in this case, regarded access to profes-
sional course as something to be substantially decided on the basis
of merit in the interests of efficiency and excellence. But with great
reluctance, it agreed to permit reservation in admission to MBBS and
BDS courses on the basis of residence requirement within the State and
institutional preference, which could not exceed 70 per cent of open
general seats for the purpose of bringing about real equality of oppor-
tunity between those who are unequals.*# The Court also directed that
though residence requirement within the State shall not be a ground
for reservation in admissions to postgraduate courses, a certain per-
1" (1971) 2'SCC 22: AIR 1971 SC:1439.

Ibid, at p. 1443.
8 Pradeep Jain v. Union of India, (1984) 3 SCC 654: AIR 1984 SC 1420.
* Ibid, P.N. Bhagwati, J. observed, “Thus, a certain percentage of reservation on
the basis of residence requirement may legitimately be made in order to equalise
opportunities for medical admission on a broader basis and to bring about real and
not formal, actual and not merely legal, equality.”
a —mi namoo in mee
ae=s hs 399
E
centage of seats may, in the present circumstances, be reserved on
the basis of institutional preference in the sense that a student who
has passed MBBS course from a medical college or university, may
be given preference for admission to the postgraduate course in the
same medical college or university but such reservation on the basis
of institutional preference should not in any event exceed 50 per cent
of the total number of open seats available for admission to the post-
graduate course. The Court declared wholesale reservation on afore-
said grounds as violative of Article 14. Compared to Vasundhara, which
shuts doors to the candidates coming from other states, Pradeep Jain
has a laudable approach of making merit primary criterion to attract
best material for education and reflecting the vision of equality in all-
India citizenship. The national unity, propounded in the case, is not
a slogan but a natural outcome of all-India character of freedom of
movement and residence.
9.5.3. Compartmentalisation within the state

In P. Rajendran case* district-wise classification of candidates was struck
down as violating right to equality, and it was held that whether selec-
tion is from the socially and educationally backward classes or from
the general pool, the object of selection must be to secure the best pos- .
sible talent from the two sources. If that is the object, it must necessarily
follow that that object would be defeated if seats are allocated district
by district. A question arose in State of U.P. v. Pradip Tandon*® whether
the action of the State in reserving certain percentage of seats available
in Medical Colleges in favour of candidates from rural areas, hill areas
and Uttarakhand was justified. The Court reasoned that a division
between the population of our country on the ground of poverty that
the people in the urban areas are not poor and that the people in the
rural areas are poor is neither supported by facts nor by a proposition
that the rural people are socially and educationally backward class.
However, reservation of seats for students hailing from hill areas and
Uttarakhand was upheld under Article 15(4) as benefiting the socially
and educationally backward classes of citizens.”
49 P. Rajendran v. State of Madras, AIR 1968 SC 1012: (1968) 2 SCR 786.

46 (1975) 1 SCC 267: AIR 1975 SC 563. .
47 Following this case, the Andhra Pradesh High Court in N. Kanakadurga Devi
v. Kakatiya Medical College, AIR 1972 AP 83 at p. 93 held that preferential treatment
of Telangana students in medical admissions was justified since “Kakatiya Medical
region,
College was started for the spread of medical education mainly for Telangana
which is educationally backward in the State, if in view of this object, provision is
as it badly
made to cater to the educational needs mainly of that particular region,
has no relation
requires such assistance, it cannot be said that the object to be achieved
Andhra region. The
to the classification made by giving larger representation to the
Regionalism, Law and Social Transforma tion
400 E ree
E
BN
arti
The principle laid down in Rajendran was reiterated in Nidam
fication
Maheshkumar v. State of Maharashtra*®, when region-wise classi
for admissions to Medical Colleges was sought to be defended on the
ground that Vidharbha and Marathwada regions are backward as
compared to Pune and Bombay regions. The Court found no material
to show that the entire region within the jurisdiction of the University
in Vidharbha is backward or that the entire region within the juris-
diction of Pune University is advanced. It thought about existence of
backward region within the jurisdiction of Pune University and of
regions within the jurisdiction of the University in Vidharbha, which
are not backward. The Court declined to categorise the regions within
the jurisdiction of various Universities as backward or advanced as if
they were exclusive categories, and nullified the rule as violating right
to equality. In Govind A. Mane v. State of Maharashtra® fixing of district
wise quota for admission to B. Ed. course showed no nexus between
district-wise distribution of seats and object ought to be achieved, and
hence it was held by the Supreme Court as violative of Article 14.
In Ahmedabad Municipal Corpn. v. Nilaybhai R. Thakore> the medical
college in question was managed and administered by the Ahmedabad
Municipal Corporation and was also financed from the Municipal
funds. While it had reserved admission therein to local students of
Ahmedabad, it had also made provisions for admission to 15 per cent
of the seats available in the said colleges to be reserved for all-India
candidates. The Court found the Municipality’s venture as rare, laud-
able and worthy of compliments, and observed, “Its desire to provide
as many seats as possible to its students is a natural and genuine
desire emanating from its Municipal obligations which deserves to
be upheld to the extent possible.” The Court rectified the defect in
the definition of “local candidate” by including in it all residents of
Ahmedabad irrespective of the school in which they passed the quali-
fying examination.
Major thrust of this category of cases is that unless an Inter-State
geographical reservation is justified in terms of social and educational
backwardness, the classification is not permissible. Avoidance of frag-
mentary approach within the state and focus on merit-based selection
constitutes definite advantages of this approach.
increase in the Telangana quota is consistent with and promotes and advances the
object underlying the establishment of the institution.”
*. (1986) 2 SCC 534: AIR 1986 SC 1362. The Court distinguished the facts of the
case from that of D.N. Chanchala v. State ofMysore, (1971) 2 SCC 293: AIR 1971 SC 1762,
where in the absence of common qualifying examination University-wise reservation
SC subject to allotment of 20 per cent seats to other University had been upheld.
*- (2000) 4 SCC 200: AIR 2000 SC 1576.
** (1999) 8 SCC 139: AIR 2000 SC 114.
S E el eevee
E teen 401
9.5.4 Institutional preference
The issue of regional preference has cropped up also when institutional
preference rule in admission to medical education or other technical
institutions is invoked by the state and questioned by the aggrieved
persons. V.R. Krishna Iyer, J., observed in Jagadish Saran case", “If
potential for rural service of aptitude for rendering medical attention
among backward people is a criterion of merit—and it, undoubtedly, is
in a land of sickness and misery, neglect and penury, wails and tears—
then, surely, belonging to a university catering to a deprived region
is a plus point of merit.” In this pronouncement, the Supreme Court
approved institutional reservation to the extent of 70 per cent of seats
at admission to MBBS. The requirement as to quantum of residence
varied from state to state»* While this diversity due to federalism was
not specifically addressed from the viewpoint of equality, the overall
approach of the judgment by Bhagwati, J. in Pradeep Jain was not in
favour of discrimination arising from such diversity. Following Jagadish
Saran, the Court in Pradeep allowed residence-based or institutional
reservation to the extent of 70 per cent and 50 per cent at undergradu-
ate and postgraduate levels of medical education. In Dinesh Kumar [3
the Court insisted that 50 per cent of seats in admission to PG Medical
Course should be open merit seats allocated exclusively on the basis of
marks obtained in an all India examination. In Dinesh I+ the quantum
of open seats was reduced to 25 per cent of total seats. When college
preference rule was introduced by University of Rajasthan by adding 5
51 Jagadish Saran (Dr.) v. Union of India, (1980) 2 SCC 768: AIR 1980 SC 820; per Krishna
lyer, J. “It is no blessing to inflict quacks and medical midgets on people by wholesale
sacrifice of talent at the threshold. Nor can the very best be rejected from admission
because that will be a national loss and the interests of no region can be higher than
those of the nation.”
2 As noted in Pradeep Jain for admissions to MBBS course, domicile or permanent
residence is required in some States, residence for a specified number of years ranging
from three to twenty years’ is required in some other States while ina few States the
requirement is that the candidate should have studied in an educational institution
in the State for a continuous period varying from four to 10 years’ or the candidate
should be a bona fide resident of the State, and in case of admissions to MDS course in
Uttar Pradesh the candidate should be either a citizen of India, the domicile of whose
father is in Uttar Pradesh and who himself is domiciled in Uttar Pradesh or a citizen
himself has
of India, domicile of whose father may not be in Uttar Pradesh but who,
resided in Uttar Pradesh for not less than 5 years at the'time of making the application
the candidate
and so far as admissions to MDS course in Karnataka are concerned,
the State of
should have studied for at least five years’ in an educational institution in
rior to his joining BDS course.
AIR 1985 SC
oo Kumar ae V. pera Nehru Medical College, (1985) 3 SCC 22:
1059.
3 SCC 727: AIR 1986 SC
5 Dinesh Kumar (Dr.) v. Motilal Nehru Medical College, (1986)
1877.
A RT E. EEE DP NO O T
eS
as
per cent bonus marks, this was disapproved by the Supreme Court
and
violative of Article 1455 The attempts of the States of Maharashtra
Uttar Pradesh to fix institutional preference either by exclusion rule or
by compartmentalised merit list rule were nullified by the Supreme
Court as violative of Article 1456 In Magan Mehrotra v. Union of India°’
a three-Judge Bench of the Supreme Court held that apart from insti-
tutional preference, no other preference including reservation on the
basis of residence is envisaged in the Constitution, in view of the deci-
sion of this Court in Pradeep Jain®.. In a series of cases relating to super
specialities in medical education, the Supreme Court has categorically
preferred to narrow down the scope of reservation and expand the
claim for merit in the interests of excellence.
Pradeep Jain and subsequent cases came for discussion and consid-
eration before the five-Judge Bench of the Supreme Court in Saurabh
Chaudri v. Union ofIndia®. The Court distinguished place of birth under
Article 15(1) from residence and upheld the state’s power of providing
for institutional reservation. The share of open seats fixed at 50 per
cent in Pradeep Jain was restored by overruling the Dinesh ruling that
had fixed it as 25 per cent. AIIMS was asked to hold entrance examina-
tions until the Central Government made necessary law in the national
interest. The Court referred to the process of social change interfaced
with law as follows:
“The situation has now cianged to a great extent. Twenty years’ have
passed. The country has during this time have produced a large number
of postgraduate doctors. Our Constitution is organic in nature. Being
a living organ, it is ongoing and with the passage of time, law must
change. Horizons of constitutional law are expanding. Having regard to
the facts and circumstances reservation by way of institutional prefer-
ence, should be confined to 50 per cent of the seats since it is in public
interest.”
The overall development in this category of cases on institutional
preference is towards reasonable balancing between the competing
claims of merit and candidate’s expectation of institutional continuity.
The Mother University—Other University dichotomy is given equita-
ble treatment in this approach. Accordingly, state policies also have
°° State of Rajasthan v. Ashok Kumar Gupta, (1989) 1 SCC 93: AIR 1989 SC 177.
°° Municipal Corpn. of Greater Bombay v. Thukral Anjali Deokumar, (1989) 2 SCC 249:
AIR 1989 SC 1194; P.K. Goel v. U.P. Medical Council, (1992) 3 SCC 232: AIR 1992 SC 1475.
*” (2003) 11 SCC 186: AIR 2000 SC 2319: 2000 AIR SCW 2406.
8 (1984) 3 SCC 654: AIR 1984 SC 1420.
‘ K. Duraisamy v. State of T.N., (2001) 2 SCC 538: AIR 2001 SC 717; AIIMS Students’
Union v. AIMS, (2002) 1 SCC 428: AIR 2001 SC 3262: 2001 AIR SCW 3143; Parag Gupta
v. University of Delhi, (2000) 5 SCC 684: AIR 2000 SC 2319; State of U.P. v. Vineet Singh,
(2000) 7 SCC 262: AIR 2000 SC 2766.
® (2003) 11 SCC 146: AIR 2004 SC 361.
Conclusions
e cee
m e 403
been modified. Accordingly, state policies also have been modified.
However, in Karnataka, the new rule introduced in 2006 for admis
-
sion to postgraduate courses providing for 50, 40 and 10 per cent of
seats respectively for the same university candidates, other university
candidates within Karnataka and candidates from other states was
temporarily withdrawn for want of adequate preparation and student
protest.
9.6 Conclusions
National unity is a paramount social value that envisions equal treat-
ment of all citizens. Constitutional framework for promoting this value
is also clear and full-fledged, and contributed to the task of keeping
national unity intact. But in the background of different levels of eco-
nomic and educational development and uneven facilities available in
different states, the opportunities are not equal. The scarce opportuni-
ties in the sphere of education and employment, when put to all-India
competition, are likely to be snatched by the most enterprising and
the meritorious. This is a natural phenomenon in a federal democracy
believing in national citizenship and mobility right of citizens.
The Constitution makers tried to resolve the problem of dissatis-
faction of the locals in the matter of access to public employment in
a very limited manner; that too, under the strict statutory limits pre-
scribed by Parliament. The support they tried to gather from feder-
alism to human rights reflects their acumen and statesmanship. The
efforts of states to provide reservation in public employment for rural
or regional candidates have been justifiably nullified by the judiciary
keeping in line with spirit of the Constitution. “Locals only” rule in
private sector, which is intended to be imposed by some states, will
also meet similar fate.
Preferential policy of some states towards in-state candidates in
the matter of access to professional and higher education has ranged
from fee differentiation and quota fixation to domicile requirement
rule resulting in exclusion of others. In the absence of clear constitu-
tional prohibition, judiciary has used the mainstream jurisprudence of
balancing the competing claims by 50 per cent formula. This appears
to be equitable and fair, and needs to be concretised. But judicial
approach also suffers from some amount of ambivalence as is clear
from Ahmedabad Municipal Corporation case. Evolution of social and
educational backwardness as a constitutionally recognised criterion
needs to be relied upon to meet the necessity instead of reliance on
questionable approaches.
404 Regionalism, Law and Sacial Transformation
Partisan policies of “Locals only” can be more satisfactorily avoided

by a long-term policy of removing regional imbalances by launching
and implementing developmental activities both in education and eco-
nomic life of the regions or states lagging behind the other advanced
sections. Creation of barriers by artificial means results in unjusti-
fied division of the society, arbitrary exclusion of the competent and
impairment of quality that is much needed in modern technological
world. Hence, suiting to the constitutional ideals of fraternity and wel-
fare of all, the state policies should be reset unless they already comply
with the emerging standard.
CHAPTER 10
soahadaaeaneiabaneeeataenaaeanninaaaneemenee
ETHNIC PLURALISM, TRIBAL

DEVELOPMENT AND SOCIAL
TRANSFORMATION: A FOCUS ON
SECURITY, SELF-GOVERNMENT
AND SOCIAL JUSTICE
10.1 Introduction
A vast country with huge population and long history, India is exposed
to global interactions from ancient times with an influx of different
racial stocks due to war, subjugation and immigration, in addition toa
variety of indigenous settlers or tribal peoples in different geographi- |
cal pockets. The polity projects the features of multi-ethnic society and
strives towards resolving the problems of pluralism by extending the
mainstream ideology of welfare, democracy, development and national
unity. The problems have been not merely that of diversity, but also of
differences and deprivations that demand resolution by development.
Serious differences in tradition, in levels of economic development,
and in political participation among the ethnic communities have
called for appropriate approaches of tolerance, protection and develop-
ment in order to deal with the exploitations and suppressions arising
from such differences and deprivations. Human rights values, devel-
opmental goals and people’s participation through grass root institu-
tions as enshrined in the Constitution have lent great strength to these
approaches towards social transformation. How a multicultural legal
framework has prepared itself in this task, and with what perspectives
and consequences is the concern of present chapter's inquiry.
10.2 A demographic profile

Indian population is regarded as melting pot of various racial mosa-
ics, and as polygenetic in nature. Herbert Risley classified it into seven
406 Ethnic Pluralism, Tribalemt Social Transformation
Development and Man
ean en ct NR Sa RS
racial types in 1915: Turko-Iranian, Indo-Aryan, Scytho-Dravidian,

Aryo-Dravidian, Mongolo-Dravidian, Mongoloid, and Dravidian.
While classification of the tribal people of India on the basis of racial
affinity has been regarded as a complex problem, anthropologists have
identified chiefly three racial stocks amidst the tribal population apart
from those drawn from Dravidian and other stocks: Negrito, Proto-
Austroloid and Mongoloid. The term “tribe” or “ethnic group” con-
notes a socially cohesive unit, associated with a territory, the members
of which regard themselves as politically autonomous and culturally
distinct. It is a collection of families bearing common name, speaking
a common dialect and is usually endogamous. It ranges from small,
relatively isolated, nearly primordial kin-and-culture groups within
which much life proceeds to large categories. India nas the largest
concentration of tribal population. The tribes are earliest settlers, and
were called adivasis. Their occupation ranges from hunting in forest,
hilly cultivation, cultivation in plains, pastoral activities, agricultural
and non-agricultural labour to that of simple artisans and folk-artists.
Their culture varies from primitive one to that influenced by mod-
ernisation. There are 75 primitive tribal groups in 17 States and Union
Territories of Andaman and Nicobar Islands, who have the character-
istics of pre-agricultural technology, declining population, extremely
low literacy and techno-economic development, and a subsistence
level economy. Based on factors such as primitive traits, distinctive
culture, shyness of contact with the public at large and geographical
isolation they are identified as Scheduled Tribes for special treatment
and notified under Article 342 of the Constitution. There are over 600
tribes spread over different States and Union Territories identified as
STs. Inclusion of new community as ST requires recommendation by
the concerned State Government, satisfaction by the Registrar General
of India, Central Government’s reference to National Commission
for Scheduled Tribes, Union Cabinet’s decision based on National
Commission’s recommendation and enactment of legislation by
Parliament to amend the Presidential Order.
As per the 2001 Census, the population of STs in the country was 8.43
crores i.e. constituting 8.2 per cent of the total population of the coun-
try living in 15 per cent of the country’s area including forests, hills,
plains and inaccessible areas. Their main area of settlement is North-
Eastern Region and the Central Tribal Belt whereas their population is
also sprinkled in other States and Union Territories. The percentage of
' B.S. Guha, Hutton and D.N. Muzumdar identify broadly six racial groups
amidst Indians: Negrito, Proto-Austroloid or Austrics, Mongoloids, Mediterranean
or Dravidians, the Western Branchycephals and the Nordics or Aryans. See, Nadeem
Hasnain, Tribal India (4th Edn., Palaka Prakashan, Delhi 1996) at pp. 43-44.
’ India (Publications Division, New Delhi 2006) at p. 872.
Histor
e ical conspectus
e 407
population of STs to total population in the State varies from 94.5 per
cent in Mizoram and Lakshadweep to o per cent in Haryana, Punjab,
Chandigarh, Delhi and Pondicherry. The predominantly tribal-pop-
ulated states include Arunachal Pradesh, Meghalaya, Mizoram, and
Nagaland? Looking to the ST population alone, it can be seen that
more than half of it is concentrated in the States of Madhya Pradesh,
Chhattisgarh, Maharashtra, Orissa, Jharkhand, and Gujarat.
The literacy rate among tribals (47.10 per cent) is far below the overall
population’s literacy rate (65.38 per cent). About 87 per cent of the main
workers from these communities are engaged in primary sector activi-
ties. A majority of STs continue to live below the poverty line, suffer
from malnutrition and disease and are vulnerable to displacement.‘
Comparatively, the Human Development Indices of tribal populations
is quite low because they live in clusters generally in far flung areas,
which are remote or in the vicinity of forests. Being victims of exploita-
tions and marginalisation of various types, they face the questions of
survival and security.
The major tribes whose populations range from one million to lit-
tle over seven million people include Gonds, Bhils, Santhals, Oraons,
Minas, Bodos and Mundas. There about 45 other tribes whose popula-
tion range from one lakh to five lakhs, and the rest have lesser popula-
tion. There are also tribes whose population is below 1oo. Tribes are
internally homogenous communities without inner caste structure.
Dependence on agro-forest economy; clan and ancestor worships; dis-
tinct practices, rituals and rules relating to marriage and family prop-
erty; superstitions, native health practices, festivals and rigid rules of
group life are some of their distinct cultural traits.
10.3 Historical conspectus

The Vedic and Epic literature refer to self-governing homogenous
tribes organised under their respective chiefs. The flourish of Bharat
and Matsya (Mina) kingdoms in the sixth century BC is representa-
tive of geo-political identity of tribes. Continuation of self-rule by
diverse tribal communities in subsequent centuries can be found as
a distinct feature. The kingdoms of Gondwana, the Bhil principatities,
the Santhal Parganas, the Mina chieftains and the traditional political
systems of hill tribes of the North-East were long-standing political
and communitarian bases for expressing and effectuating the social
will’ The Gond rule had spread over Central province area and the
, New
3 R.C. Verma, Indian Tribes through the Ages (2nd Edn., Publications Division
Delhi 1995) at pp. 8-9.
4 Supra, n. 2 at pp. 880-81.
5 R.C. Verma, supra, n. 3 at pp. 15-34.
408 Ethnic Pluralism, Tribal Developmen t and Social Transformation
ia eer al UOT RETIRE S ASSS SST SST
dynasties of Deogarh and Kharavela were its offshoots. The Chanda
rulers of Maharashtra, princely rulers of Chhattisgarh and Bastar rul-
ers treasured the Gond culture. The Minas were the ruling tribes of
Rajasthan until they lost power to Rajputs. The Bhils were a martial
race, who sided the Rajputs against the Mughals, and got retaliated
and oppressed by the Mohammedan rulers. The Santhals had cleared
the dense forest, built up a sense of solidarity among themselves, and
dared to rebel against their exploiters. The Mundas were essentially
agricultural people, who cleared virgin forests for their cultivation,
and with a similar attitude fought against exploitative zamindari
oppression.
During the medieval period, the tribal self-rule suffered a great set
back when the Mohammedan rulers unleashed a reign or terror upon
the Oraons, Mundas and Ho tribes in Chotanagpur and other areas;
upon Bhils of Western India and Banjaras of North-Western India.
The Minas in Rajputana fought against the Mughals and Rajputs, and
were unsuccessful in regaining the lost territories. The Gond dynasty
of Central India came to an end in eighteenth century after a long bat-
tle against the Mughals and Marathas. Some of the tribes withdrew to
forest areas in search of peace. Conversion into Islam and migration to
distant places eroded their identities.
With the advent of the British and their infiltration into tribal areas,
new types of conflicts were experienced. Facing stiff opposition and
violent reaction from the tribal, the British adopted a double-edged
policy of diverting the tribal anger against the moneylenders, con-
tractors, forest officials and the police by allowing a free hand for
the exploiters. Since use of force was not yielding a lasting solution
in Chota Nagpur and Santal Parganas, in 1778, Augustus Cleveland
placed the entire Rajmahal hill area inhabited by Pahariyas under the
administration of hill assemblies.° The special treatment accorded to
them consisted exemption from the application of the general rule and
autonomy to lay down rules for the governance of the hill area. The
Regulation was repealed in 1827.
The Kol Mutiny of 1831 was another agitation in Chotanagpur area.
The British force entered into Singhbhum and forcefully annexed the
sector inhabited by Hos tribe, also called as Lara Kols. The British
sought peace with them by promising special treatment of direct British
rule. Breaching the promise, the area was entrusted to the Zamindars.
When Zamindars and moneylenders exploited the Hos and dispos-
sessed their traditional occupation, and molested their women, the
Hos and Mundas revolted against the British. R.C. Verma writes, “The
Kol mutiny was a widespread protest of different sections of the tribals
° Ibid, at p. 40.
Historical conspectus 409
ee
against the inequities, injustice and maladministration by the
British
and a manifestation of a movement which sought restoration of their
rights and protection of their lives and lands from encroachment and
sanctity of their women.” The insurrection was quelled by the armed
forces. The British reviewed their policy, realised the unsuitability of
applying general laws upon the tribal areas, and enacted the Bengal
regulation of 1833 and Wilkinson’s Rules of 1837. Consequently, the
entire Chota Nagpur area was declared as non-regulation area and
exempted from the administration of general laws. Emphasis was laid
on active involvement of the traditional institutions of village func-
tionaries including Mankis (chief of group of villages) and Mundas
(village head). Efforts were made to open up communication, establish
schools, haats, melas, etc. and ban on witchcrafts and other sorceries
that used to frequently result in murders.’ The general laws on sale
of land for debt redemption and for rent arrears were not applicable.
Thus was made first, the experiment in the policy of self-government,
security and social justice.
The Santhal Rebellion of 1855 was another instance of combat against
injustice. With the clearing of dense forests and converting them into
cultivable land by the Santhals, there was influx of land grabbing
Zamindars and moneylenders into the tribal economy. Their unscru-
pulous exploitative practices and liquor trade brought penury and mis-
fortune to the tribals. The interest was as high as 500 per cent; decep-
tion in account was rampant; and the debt was hereditary. Virtually,
no remedy could be availed because of the corrupt and oppressive
revenue Officials. Forcible dispossession of property, undue exactions,
abuse of their women and personal violence were the varieties of tyr-
annies.? The Santhals rose en masse in a bloody rebellion in 1855. The
rebellion was widespread, and could be crushed only by use of mas-
sive force. It was not a local encounter, but a revolt against oppression
and the prevailing maladies in the administration and economic sys-
tem. The remedial measure chosen by the Government by passing the
Regulation of 1855 provided for removal of the Santhal Parganas from
the operation of general laws and regulations. The Police Rules of 1856
supplemented this policy by recognising the headman system in vil-
lage; by conferring police powers to village head; by ensuring direct
communication between people and the Assistant Commissioners
and avoiding intermediaries; by allowing verbal complaints; and by
entrusting the tribals with the responsibility of bringing the accused
along with witness to the court.
7 Ibid, at p. 43.
* Tbid, at p. 44.
* Ibid, at p. 46.
410 Ethnic Pluralism, Tribal Develo pment and Social Transformation
O e ait ea ee
The Dhanbad tribal unrest in 1869 and 1870 against arbitrary enhance-
ment of rent by Zamindars and restriction on forest rights was settled
by a great understanding with the tribes." Similarly, speedy measures
by the administration in 1887 resolved the agitation of Mundas and
other tribes in Ranchi against compulsory labour and illegal enhance-
ment of rent. The Birsa movement of 1895 was directed against land-
lords, moneylenders and Christian missionaries who were trying for
conversion of tribals into Christianity. Starting of a new religion by
Birsa Munda provided a new dimension to the movement. The rebel-
lion was suppressed. As a remedial measure, land records were sys-
tematised to recognise the tribal interest in land, and Chota Nagpur
Tenancy Act was passed in 1908 to protect the tribal landowners.*'
The revolts in Andhra Pradesh (1862, 1879-80) by tribals against
authorities and Zamindars, who harassed the tribals, appropriated
the best of lands to themselves and practiced bonded labour, drew the
attention of British authorities towards their pitiable conditions, and
forced to bring reforms. The Kandh Rising (1837-56) in Orissa was
on the question of British policy of prohibition upon Mariah (human
sacrifice).’* A special Agency was created by the British to suppress
the practice. Repressive measures were taken against the resisters. The
zeal for modernisation was clear. The taxes were exorbitant and exploi-
tation by the Zamindars and moneylenders was backbreaking. After
the suppression of rebellion, the Government introduced the system
of land revenue, administration through Tahsildar and tribal welfare
through construction of schools and paving of roads. The Keonjhar
Rising in Orissa (1867-68, 1891-93) by the Bhuyan and Juangs against
British intervention in the succession of native king, and against the
feudal and oppressive regime of the new ruler had also opened the
eyes of the administration in improving the conditions of the tribals.
The Bastar rebellion of 1911 on the question of reserve forests and social
reform movement of 1940s under the leadership of Raj Mohinidevi
proved the throbbing popular support to the communitarian move-
ment for eschewing liquor and other evils. In addition to protection of
economic interests of the tribes, the policies of excluding them from
the operation of general law and of non-interference with their custom,
tradition and way of life have been followed by the British.
The indigenous people in the hills of North-East India had developed
traditional political system with grass root participation as a natural
outcome of their social evolution, long before the advent of the British.
" Ibid, at p. 48.

"' Ibid, at p. 49.
2 Ibid, at pp, 51-52.
' Ibid, at pp. 52-53.
Historical conspectus 411
ce = ee aeRO eee elena |
The two types of governance system included: democratic
system in
the clan-based village societies controlled by the village councils
and
village headmen, and autocratic system of chieftainship
controlled by
the clan or village chiefs.* While in certain communities the tradi-
tional institutions were well organised and well structured, in others
they were loosely organised. The Khasis had developed a unique three
tier democratic system, with villages at the bottom, Raids at the mid-
dle and Syiemships at the top. Clans used to function as sub-system in
villages with its own council called Durbar Kur. Every Khasi village
had its own local assembly (Durbar Shrong) with powers relating to
village sanitation, water supply, roads and education. The inter-village
disputes or issues were resolved by the Raid, a multi-village politi-
cal unit meant for social control and harmonious administration. The
head of Durbar Raid was elected by the component villages. The unre-
solved disputes and serious crimes were to be decided by the Syiem.
The elected chief of Syiem and the Durbar Hima constituted supreme
political institution."* The interlinked and interdependent three-tier
hierarchy of the Khasis was a unique system for upholding the will of
the people.
The Jaintias had also three-tier system: king (Syiem) at the top of
supreme political authority of the Jaintia kingdom, the Dolois at
the middle as the head of Elakas or Raid and the village headman
(Wahehchnong) at the bottom.” The village headman was elected by
Durbar Chnong where all adult male members used to have active par-
ticipation. The Dolois used to perform the executive, political, magiste-
rial, religious and ceremonial functions. The confederation of all the
Elakas constituted the Jaintia kingdom. Unlike the Khasis and Jaintias,
the Garos did not distinguish between social and political institutions.
Garo society consisted of numerous exogamous septs (Chatchi) which
was further divided into clans (Machong) within which were smaller
homogenous groups. The villages (Akhings) were under the supervi-
sion of Nokma who administered the economic, social and political
life of the people as a custodian.
The British conquest of hilly areas led to the colonial intervention
into the traditional political systems. The office of the Syiem was
reduced to the position of subordinate because of the British usurpa-
tion of the power of making treaties, power of deciding succession
4 Ibid, at pp. 62-65. j aes geal

5 Juanita War, “Panchayati Raj and Traditiona l Khasi Institutio ns: A Comparis on
in MN. Karna, Power to People in Meghalaya (Regency Publications, New Delhi 1997)
at pp. 69-71.
'© Ibid, at p. 96. : es
of the Jaintia Hills
7 L.S, Gassah, “A Critical Assessment of the Role and Functions
pp. 116, 125-27.
Autonomous District Council” in M.N. Karna, supra, n. 15 at
412 Tribal Development
Ethnic Pluralism, nn and Social Transformation
in ip RI S. RSE SSS
llate power of
of Syiems, grant of sannads to Syiems and final appe
ced to three years
adjudication. The life time tenure of Dolois was redu
ve and judi-
only. The tribal chiefs were left with limited administrati
cial powers in relation to internal administration.
fic poli-
Some of the constitutive laws passed by the British had speci
Act of 1870
cies touching upon the tribes. The Government of India
rnor
conferred power of administration of special areas upon the Gove
the
General, which was the source of remedial powers for safeguarding
interests of the tribals in non-regulatory area. The Scheduled Districts
Act, 1874 empowered the local government to apply and disallow the
operation of any law in the scheduled tracts specified under the Act.”
The Government of India Act, 1919 empowered the Governor General
to declare any territoryas backward tract, and with the permission
of the Secretary of State apply the Act with such modifications and
exceptions as notified. The backward tracts were divided into: wholly
excluded area and modified excluded areas. Regarding the former—
which included Lacadive and Minicoy Islands, Chittagong hills of
Bengal, Spiti of Himachal Pradesh and Angul in Orissa—neither the
Central nor the Provincial Legislatures had the power of making laws.
Regarding the latter’? the Legislatures were competent to pass laws
subject to modifications and exceptions directed by the Governor
Geneial. The Government of India Act of 1935 classified the backward
tracts into “Excluded” and “Partially Excluded Areas” to be governed
respectively according to the discretion of the Governor and minis-
terial responsibility. The Governor had the power of overruling the
ministerial decisions, if deemed fit to do so.”°
'’ The Scheduled tracts included: Assam, Ajmer-Mewar, Coorg, Andaman Islands,
Jalpaiguri, Darjeeling, Chittagong hills, Santhal Parganas, Chota Nagpur Division,
Mewasi Chiefs in West Khandesh, Chanda, Chhattisgarh, Vishakhapatnam, Godavari
area, areas of Punjab, Jhansi and Manipur pargana.
'° Which included Darjeeling, Lahaul, Ganjam, Vishakhapatnam, Godavari,
Chotanagpur Division, Sambalpur, Santhal Parganas, Garo, Jaintia, Mikir, North
Cachar, Naga, and Lushai hills, Sadiya, Balipara, and Lakhimpur tracts.
*» 92.(1) The executive authority of a Province extends to excluded and partially
excluded areas therein, but, notwithstanding anything in this Act, no Act of the
Federal Legislature or of the Provincial Legislature shall apply to an excluded area or
a partially excluded area, unless the Governor by public notification so directs, and
the Governor in giving such a direction with respect to any Act may direct that the
Act shall in its application to the area, or to any specified part thereof, have effect
subject to such exceptions or modifications as he thinks fit.
(2) The Governor may make regulations for the peace and good Government of
any area in a Province which is for the time being an excluded area, or a partially
excluded area, and any regulations so made may repeal or amend any Act of the
Federal Legislature, or of the Provincial Legislature or any existing Indian law, which
is for the time being applicable to the area in question. Regulations made under this
sub-section shall be submitted forthwith to the Governor General and until assented
to by him in his discretion shall have no effect, and the provisions of this Part of this
Policy choices for ethnic pluralism and the State
e e ee e ee 413
In fact, the Act of 1935 was based upon Simon Commission Report,
which contained some discussion about the rationale behind the exclu-
sion policy. According to the Simon Commission, “The stage of devel-
opment reached by the inhabitants of these areas prevents the possibil-
ity of applying to them methods of representation adopted elsewhere.
They do not ask for self-determination, but for security of land tenure,
freedom in the pursuit of their traditional methods of livelihood, and
reasonable exercise of their ancestral customs.” It observed that the
responsibility of the administration for the backward tracts did not
rest with providing them protection from exploitation and prevention
of frequent outbreaks alone. “The principal duty of the administra-
tion is to educate these peoples to stand on their own feet.” In order
to secure accelerated pace of development, the Commission was in
favour of entrusting the administration of these areas to the Centre till
they came up to the general level, in stead of complete isolation.
The overall historical experience has been towards acceptance of
the policy of protective segregation, empowerment and development.
Within the area designated by the “Inner Line” drawn by the state,
tribal communities were allowed to manage their own affairs with
only such interference on the part of frontier officers in their political
capacity as may be considered advisable with a view to establishing
a personal influence for good among the chiefs and the tribes. Self-
governance with special right to retain customary laws and distinct
social and religious practice was a historically evolved right. While
limited segregation was essential for security, complete segregation
was detrimental to development. On the other hand, assimilation
posed the fear of loss of identity. Finding an appropriate path to suit
the context of modernisation, human rights values, welfare and cul-
tural pluralism was an onerous task before the Constitution makers.
10.4 Policy choices for ethnic pluralism and the State—tribe

relationship
Policy alternatives of the nations to the issue of ethnic pluralism vary
according to the levels of group conscience and maturity in under-
standing of the human rights values, and the sense of responsibility
towards tolerance and equitable development. Negatively, the policies
in relation to
Act with respect to the power of His Majesty to disallow Acts shall apply
apply in relation to
any such regulations assented to by the Governor General as they
. isles
Acts of a Provincial Legislature assented to by him.”
n Except ionali sm or Indian Model: Negoti ating
21 Gurpreet Mahajan, “India
-State in — fe
Cultural Diversity and Minority Rights in Democratic Nation Yor
(Oxford University Press, New
and Baogang He (Eds.), Multiculturalism in Asia
2005) at pp. 290-03.
414
iN CP Pluralism,
Ethnic NT Tribal
UE
Developm
NN ie
ent and
ah
Social Transformation
Dae OTE Le
range from intolerance, forced assimilation, persecution to banishment

and genocide. Positively, they vary from coexistence, cooperation and
security to syncretism and symbiosis.
The former reflects hegemonic approach of the dominant over the
weak, and of the majority over the minority. According to Michael
Foucault, the cultural power, being the moving substrata of forced
relations, by virtue of their inequality, constantly engenders states of
power in complex strategic situation.” Its assertion is often built by
exclusion of others. The pride in one’s own culture, the fears of domina-
tion by an alien culture, and the tension about economic rivalry, hostil-
ity and insecurity persuade for emotional longings for ethnocentrism.
The power-subjection correlation in this sphere inflammates certain -
points of social body and injures human rights. In such situations,
power passes through the subordinated, settles their struggle against
power by relying on their own help, and thus annihilates their vulner-
able cultural constructs.” Enslavement of Negroes by Euro-Americans
in the United States of America; brutal torture and hunting down of
aborigines of Australia by the British settlers in the 18th century (6,00,
ooo aboriginals died due to torture); state-sponsored extensive kill-
ing of Jews by the Germans in the pretext of maintaining purity and
supremacy of Aryan race during the Nazi rule; wide practice of apart-
heid against the Blacks in South Africa; and violent ethnic conflicts
in Sri Lanka, Myanmar, Croatia, Yugoslavia and Rwanda reflect the
painful policies of atrocity against ethnic minorities.*° In contrast to
violent approach for coercive assimilation, method of peaceful assimi-
lation is also unassumingly employed by the dominant culture. The
“melting pot theory”, which is much spoken about in the United States
of America, regarded that people belonging to different ethnicities
speaking different languages and professing different religions must
“melt” and fuse their identity to become common Americans.”
* Michael Foucault, The History of Sexuality, Vol. I (Harmondsworth 1978) at p. 93.

a a Joshi and Bhagwan Joshi, Struggle for Power in India (Sage, New Delhi 1994)
at p. 79.
* S.C. Dube, “Cultural Pluralism in the Global Context” in A.K. Momin (Ed.), The
Legacy of G.S. Ghurye (Popular Prakashan, Bombay 1996) at pp. 97, 99. See also, James
Crawford, “Legal Pluralism and the Indigenous People of Australia” in Oliver
Mendelson and Upendra Baxi, The Rights of Subordinated Peoples (Oxford University
Press, New Delhi 1996) at pp. 178, 182.
* D.C. Watt, A History of the World in the Twentieth Century (Hodder and Stouden,
London 1967) at pp. 525-6.
26 M.K. Gandhi, An Experiment with Truth (2nd Edn., Navjivan Publishing House,
Ahmedabad 1940 rept. 1976) at pp: 108-14; 140-48; See, Refugees (1994,
1997).
asJennifer M. Bayer, Language, Law and National Integration (CIIL, Mysore
1986) at
p. 70.
Policy choices for ethnic pluralism and the State
(0 a eee! attests td dil ll ea ll 415
On the other hand, when the inter-racial relations conform to
human rights values and goals of welfare, development and social
justice, egalitarian redistribution and cultural autonomy results. As
Irwin Deutcher views, “There is no place among civilised nations for
such minority policies as extermination, slavery, expulsion, or dump-
ing and containing. No society ought to let matters evolve to the point
where the only choice for survival of the minority culture lies in a
theme park policy where they became a living museum protected by
the state and prospering from the tourists.”® Maximising the toler-
ance of differences and pursuing the policy of coexistence establish
minimum security for them. The “salad bowl” theory propounded to
reflect and reinforce this approach contemplates that just like different
vegetables and fruits keep their separate identity and yet become sin-
gle salad, people could retain their distinct identities along with being
nationals of the state. Going a step ahead in building the atmosphere
for coexistence, elimination of economic disparities and injustices and
ensuring of self-government are also employed as healthy policies and
practices.”
In India, the approach to the issue of ethnic minorities has been one
of integration, by balancing between isolationist and assimilationist
policies. The isolationist policy believed in leaving the tribal people to
themselves to live according to their own traditions without external
interference. The British Government considered the administration
of tribesmen as difficult, unrewarding and risky because of its estima-
tion that the tribesmen were rude, disgruntled, intriguing and uncivi-
lised. Further, some of the tribes were at the verge of extinction unless
“national park” policy was adopted. It was suited to the colonial policy
to have laissez faire approach to the tribes. However, the isolationist’
policy had the following drawbacks:°
(i) in practice, the policy was not implemented, and this enabled
the Zamindars, moneylenders, traders, excise contractors
and Christian missionaries to exploit them;
(ii) because of poverty, disease, slavery and exploitation of the
weaker tribes by the strong, isolation of tribes did not bring
happiness; and
”
28 Irwin Deutscher, “National Policies and Cultural Minorities: What is possible?
(Gyan Publishin g
in Manis Kumar Raha (Ed.), Dimensions of Human Society and Culture
.
House, New Delhi 1996) at pp. 41-49.
sm: The Liberal S
2” DL. Coleman, “Individualising Justice through Multiculturali
“Cultur al Heterog eneity
Dilemma” (1996) 96 Cal L Rev 1573; see also, Robert C. Post,
a .
and Law” 76 Cal L Rev 297 at p. 301.
3” G.S, Narrwani, Tribal Law in India (Rawat Publications,
Ethnic Pluralism, Tribal Devel opment and Social Transformation
416 rr OP
Te
(iii) with the emergence of modernisation and welfare state,

humanitarian ideals were becoming prominent to which
isolation caused obstruction.
On the other hand, assimilation had the objective of mixing with the
mainstream through development, “civilising process” and access to
modern amenities. G.S. Ghurye argued about the suitability of the
assimilation policy keeping in mind the accommodative character of
mainstream culture?" But the fear of loss of identity, unwillingness to
depart from tradition and attachment to land-based or forest-based
living style came in the way of assimilation. Jawaharlal Nehru took a
middle path by formulating integrationist policy in the background of
colonial experience that delinking the tribes from the mainline civili-
sation had brought exploitation and suffering2* His “panchsheel” of
tribal development consisted of the following norms:
(1) people should develop along the lines of their own genius and
state should avoid imposing anything on them. Traditional
art and culture shall be encouraged;
(2) tribal rights on land and forest should be respected;
(3) for doing the work of administration and development, a
team of their own people should be trained and built up
and introduction of too many outsiders into tribal territory
should be avoided;
(4) there should not be over-administration of tribal areas nor
overwhelming :nultiplicity of schemes. State’s work should
not be a rival to tribesmen’s own social and cultural tradi-
tion; and
(5) evolution of the quality of human character should be crite-
ria of good result; not statistics nor amount of money spent.
Nehru warned against dangers of assimilation, “We may well suc-
ceed in uprooting them from their way of life with its standards and
discipline, and give them nothing in its place. We may make them
feel ashamed of themselves and their own people and thus they may
become thoroughly frustrated and unhappy... It is just possible that,
in our enthusiasm for doing good, we may overshoot the mark and
do evil instead.”> He regarded that even well-meant efforts for their
improvement might inflict grievous injuries, deprive their culture and
art and threaten their survival as happened in other parts of the world.
He believed in natural, gradual and organic change by taking the com-
munity into confidence. The approach emerging in favour of the tribes
was thus embracing neither the “museum approach” nor the “open
*! G.S. Ghurye, Caste and Race in India (London 1932) at p. 107.

* G.S. Narrwani, supra, n. 30 at p. 34.
% Ibid, at p. 15.
Policy choices for ethnic pluralism and the State 417
Bro ae a
door approach”. It was a middle course combining the state's protec-
tive, regulative, facilitative and developmental role.
In 1947, the joint meeting of two Sub-Committees on the subject
summed up the problems as under:
“The areas inhabited by the tribes, whether in Assam or elsewhere,
are difficult of access, highly malarial and infested also in some cases
by other diseases like yaws and venereal disease and lacking in such
civilising facilities as roads, schools, dispensaries and water supply. The
tribes, themselves are for the most part extremely simple people who
can be and are exploited with ease by plainsfolk, resulting in the pas-
sage of land formerly cultivated by them to moneylenders and other
erstwhile non-agriculturists. While a good number of superstitious and
even harmful practices are prevalent among them, the tribes have their
own customs and way of life with institutions like tribal and village
panchayats or councils which are very effective in smoothing village
administration. The sudden disruption of the tribals’ customs and ways
by exposure to the impact of a more complicated and sophisticated
manner of life is capable of doing great harm. Considering past experi-
ence and the strong temptation to take advantage of the tribals’ sim-
plicity and weaknesses, it is essential to provide statutory safeguards
for the protection of the land which is the mainstay of the aboriginal’s
economic life and for his customs and institutions which, apart from
being his own, contain elements of value.”>4
In the Constituent Assembly, three trends of arguments were put for-
ward regarding state’s policy towards tribes2*> The first view, formu-
lated by Shri Brajeswar Prasad, was that the provincial Government or
Governor should have nothing to do with the administration of these
areas; and it is the President who should look after them. In view of
the strategic position of the North-East, military reasons and internal
rivalries amidst tribes it was not possible to jeopardise the interests
of India at the altar of the tribals. Since racial self-determination had
worked havoc in Europe, it was not worth experimenting in India, he
viewed. As opposed to this, the second view that was expressed by
Shri Kuladhar Chaliha and Shri Rohini Kumar Chaudhuri laid empha-
sis on the assimilationist policy. They argued that the State Legislature
and the Government should be entrusted with more powers and that
Acts of Parliament shall be made applicable to the tribals irrespective
the other
4 The Sub-Committee on Assam submitted its report on 28-7-1947 while
other than Assam
Sub-Committee on the Excluded and Partially Excluded Areas
Septemb er 1947. The joint
submitted its interim report on 15-8-1947 and final report in
meeting of the two Sub-Committees was held in August 1947.
Schedule: Its Concepts and
3 CAD,5-9-1949 to 7-9-1949; Bhupinder Singh, “The Sixth
see also, Vijay Hansaria, Justice
Praxis” 43(2) Indian Journal of Public Administration
(2nd Edn., Universal Publications,
B.L. Hansaria’s Sixth Schedule to the Constitution
New Delhi 2005) at pp. 10-15.
418 Ethnic Pluralism, Tribal Development and Sacial Transformation
ile et ctr ei
of the tribes’ consent to the Acts. To keep them away from the main-
stream was to create Tribalstan or Communistan, Shri Chaliha rea-
soned. Both the extreme views were not favoured by the Constituent
Assembly. The third view propounded by Shri Gopinath Bordoloi, Shri
Nichols Roy, Shri A.V. Thakkar and Shri Jaipal Singh represented a bal-
anced approach and reflected tribal people's aspirations. The idea of
isolation and separation lingering in the minds of the tribals could not
be shattered by the method of force, but could be dealt by their will-
ing cooperation. As viewed by Jaipal Singh, a “knowledge solution”
was preferable to “power solution’. Bordoloi considered that certain
institutions as that of village administration and adjudication were so
good that it would have been wrong to destroy them. An opportu-
nity for self-governance could infuse self-confidence to preserve their
culture and feelings. Keeping them satisfied was stepping stone for
peace at the international border. Nichols Roy favored to create a feel-
ing of friendliness and unity among the tribals with full confidence
about preservation of their culture. He viewed that autonomy of hill
people would enable them “to rule themselves in their own way and
to develop themselves according to their own method.” Dr. Ambedkar
distinguished between tribal people of Assam and tribal people in
other areas on the basis of extent of “Hinduisation” or assimilation
with the civilisation and culture of majority of people in whose midst
they lived3* The tribals of 4:sssam kept their customs, culture and per-
sonal law aloof whereas others had not. In framing different patterns
of self-governance, these factors were kept in mind. In addition to the
autonomy and security, the policy of empowering them through polit-
ical reservation and reservation in employment and education were
also contemplated by the Constitution makers.
10.5 International human rights regime for elimination of racial

discrimination and protection of indigenous people
The interaction between social transformation and human rights is
one of the finest developments that have benefited the mankind in
various spheres. Along with growth of humanism, the barbarous
practices of genocide got universally condemned’ Prohibition of dis-
% Tbid.
*” Genocide means any of the following acts which have the intention of destroying,
in whole or in part, a national, ethnical, racial or religious group, “killing members
of the group; causing serious bodily or mental harm to members of the group;
deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part; imposing measures intended to prevent birth
within the group; forcibly transferring children of the group to another group” (Art. 2
of the Convention on Prohibition and Punishment of the Crimes of Genocide, 1951.)
International human rights
regime
e eet ee 419
crimination based on race, religion, language and other factors in the
matter of access to human rights became common principle in major
human rights instruments ranging from Universal Declaration of
Human Rights to various Conventions and Covenants: International
Convention on the Elimination of All Forms of Racial Discrimination,
1965 states that the State Parties condemn racial discrimination? aim
to eliminate it in all its forms and promote understanding among all
races. Article 1.4 allows the States to take special measures for the
purpose of securing adequate advancement of certain racial or ethnic
groups or individuals requiring such protection as may be necessary
in order to ensure such groups or individuals equal enjoyment or exer-
ciseofhuman rights and fyndamental freedoms subject to durational
limits. As per International Covenant on Civil and Political Rights, 1966,
“In those States in which ethnic, religious or linguistic minorities exist,
persons belonging to such minorities shall not be denied the right, in
community with the other members of their group, to enjoy their own
culture, to profess and practice their own religion, or to use their own
language.” (Article 27) The Vienna Declaration and Programme of
Action, 1993 considers the elimination of racism and racial discrimina-
tion, in particular in their institutionalised forms such as apartheid or
resulting from doctrines of racial superiority or exclusivity or racial
on tolerance, as a primary objective for the international community
and a worldwide promotion programme in the field of human rights.
(I-20)
International Labour Organisation* has tried to build up a strong
base and comprehensive plan of affirmative action to benefit the indig-
enous people ever since 1957. The Indigenous and Tribal Population
Convention, 1957 has importantly stated, “So long as the social, eco-
nomic and cultural conditions of the populations concerned prevent
them from enjoying the benefits of the general laws of the country to
which they belong, special measures shall be adopted for the protection
3 Everybody is entitled to the rights in the Declaration, “without distinction of any

kind, such as race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status.” (Art. 2)
9 “Racial discrimination is any distinction, exclusion, restriction or preference
based on race, colour, descent, or national or ethinic origin which has the purpose or
effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental freedoms in the political, economic, social,
cultural or any other field of public life.” (Art. 1)
veloped
# According to Lee Swepston, the ILO has the most effective and well-de
because of wide range of internat ional
mechanism for human rights protection
See, Lee Swepston, The
conventions, examination of reports and input from NGOs.
Protection” in Janusz
International Labour Organisation’s System of Human Rights
Monitori ng and Enforcement (Ashgate,
Symonides, Human rights: International Protection,
UNESCO Publishing, Hants 2003) at p. 91.
420 Ethnic Pluralism, Tribal Development and Social Transformation
of the institutions, persons, property and labour of these populations.”

In addition to protection of the land holdings and habitats of the popu-
lations (Articles 11 to 14), special measures in the matter of recruit-
ment, vocational training and encouragement to handicrafts and rural
industry are also contemplated (Articles 15 to 18). Measures for social
security, health and education also support their lives (Articles 19 to
26). The ILO Recommendation concerning protection and integra-
tion of indigenous and other tribal and semi-tribal populations, 1957
elaborates about their right to land reserve for shifting cultivation and
for other purposes, about special measures for their recruitment and
fair conditions of employment and for social security. Improving the
techniques of producing handicrafts, promoting public health, educa-
tion and language through collective efforts and people’s participation
and appropriate administrative arrangements are also recommended.
Convention (No. 169) concerning Indigenous and Tribal Peoples in
Independent Countries, 1989 recognises the aspirations of these peo-
ples to exercise control over their own institutions, ways of life and
economic development and to maintain and develop their identities,
languages and religions, within the framework of the States in which
they live. It notes that in many parts of the world these peoples are
unable to enjoy their fundamental human rights to the same degree as
the rest of the population of the States within which they live, and that
their laws, values, customs and perspectives have often been eroded. It
calls attention to the distinctive contributions of indigenous and tribal
peoples to the cultural diversity and social and ecological harmony
of humankind and to international cooperation and understanding.
Article 2 imposes responsibility upon the Governments for developing,
with the participation of the peoples concerned, coordinated and sys-
tematic action to protect the rights of these peoples and to guarantee
respect for their integrity. Such action shall include measures for:
(a) ensuring that members of these peoples benefit on an equal
footing from the rights and opportunities which national laws
and regulations grant to other members of the population;
(b) promoting the full realisation of the social, economic and
cultural rights of these peoples with respect for their social
and cultural identity, their customs and traditions and their
institutions;
(c) assisting the members of the peoples concerned to eliminate
socio-economic gaps that may exist between indigenous and
other members of the national community, in a manner com-
patible with their aspirations and ways of life. Article 4 pro-
vides that special measures shall be adopted as appropriate
International human rights regime
421
for safeguarding the persons, institutions, property,
labour,
cultures and environment of the peoples concerned.
A provision of far reaching importance that has emphasised prote
ction
of identity of the indigenous community is traceable in Article 7 which
States:
1. The peoples concerned shall have the right to decide their
own priorities for the process of development as it affects
their lives, beliefs, institutions and spiritual well-being and
the lands they occupy or otherwise use, and to exercise con-
trol, to the extent possible, over their own economic, social
and cultural development. In addition, they shall participate
in the formulation, implementation and evaluation of plans
and programmes for national and regional development
which may affect them directly.
2. The improvement of the conditions of life and work and lev-
els of health and education of the peoples concerned, with
their participation and cooperation, shall be a matter of pri-
ority in plans for the overall economic development of areas
they inhabit. Special projects for development of the areas
in question shall also be so designed as to promote such
improvement. _
The Declaration of San Jose on Ethno-Development adopted by
UNESCO in 1982 affirms ethno-development as an inalienable right
of the indigenous people. It conceptualises ethno-development as
an extension and consideration of the elements of its own culture,
through strengthening the independent decision-making capacity of
a culturally distinct society to direct its own development and exer-
cise self-determination, at whatever level, which implies an equitable
and independent share of power. It recognises that for the Indian peo-
ples, the land is not only an object of possession and production but
also forms the basis of their existence, both physical and spiritual, as
an independent entity. Territorial space is the foundation and source
of their relationship with the universe and mainstay of their view of
the world. Further, respect for the forms of autonomy required by the
Indian peoples is an essential condition for guaranteeing and imple-
menting these rights. Their internal organisations are part of their cul-
tural and legal heritage which has contributed to their cohesion and
maintaining their socio-cultural heritage.
The Panama Declaration of Principles of Indigenous Rights, adopted
by the UN General Assembly in 1986, recognises indigenous peoples’
rights of self-determination, protection of their culture as a part of
the cultural heritage of mankind, and their land rights as exclusive,
traditional and special. The Geneva Declaration of Principles on the
422 Ethnic Plural ism, Tribal Devel opment and Social Transformation
e e e
Rights of Indigenous People, adopted by representatives of indige-
nous people and organisations in 1987 for the fourth session of the UN
Working Group on Indigenous Populations has reiterated their right
of self-determination and autonomy, permanent control on land and
territory, right to continuance of their material culture, and their right
to education and language. The Draft UN Declaration on the Rights
of Indigenous Peoples agreed upon by the Working Group in 1993
frames a holistic framework for their protection and development. It
recognises right of Indigenous Peoples to the full and effective enjoy-
ment of all human rights and fundamental freedoms and right to self-
determination by virtue of which they freely determine their political
status and freely pursue their economic, social and cultural develop-
ment (Articles 1 and 3). There is recognition of their collective rights to
live in freedom, peace and security including prevention and redress
for actions depriving their distinct identity and cultural values; dis-
possessing them of their lands, territories or resources; population
transfer that undermines their rights; assimilation or integration by
other cultures or ways of life imposed on them by legislative, admin-
istrative or other measure (Articles 7 and 8). Their right to maintain
and develop their distinct identity and characteristics and to comply
with, practise and revitalise their traditions and customs is also guar-
anteed (Articles 8, 9 and 12). Under the Declaration, they have right to
promote, develop and main‘ain their institutional structures and their
distinctive juridical customs, traditions, procedures and practices, in
accordance with internationally recognised human rights standards
(Article 33). They have right to have special measures for the immedi-
ate, effective and continuing improvement of their economic and social
condition and the right to determine and develop priorities and strate-
gies for exercising their right to development (Articles 23 and 24). They
have right to own, develop, control and use the lands and territories
including the total environment; right to the restitution of lands occu-
pied or damaged without their free consent; and to the conservation
and protection of environment (Articles 26, 27 and 28). Protection of
workers’ rights, educational rights, cultural and intellectual property
rights and right of self-determination and autonomy are also recog-
nised (Articles 18, 29 and 31).
The ethics of ecology is infused into ethnic rights by the efforts of
the Earth Summit in Rio de Janeiro in 1992. In the Rio Declaration and
Agenda 21, the special relationship between Indigenous Peoples and
their lands is acknowledged. Indigenous Peoples have a vital role in
environmental management and development because of their tradi-
tional knowledge and practices (Rio Declaration, Principle 22). As stated
in Agenda 21, “In view of the interrelationship between the natural
International human rights regime
SSR ee le abet oh etieee ah 423
environment and its sustainable development and the cultural, social,
economic and physical well-being of indigenous people, national and
international efforts to implement environmentally sound and sustain-
able development should recognise, accommodate and strengthen the
role of indigenous people and their communities.” The Government
in full partnership with indigenous people is expected to promote the
objectives of establishing a process to empower indigenous people
through appropriate legal policies, protection of their land from envi-
ronmentally unsound activities and recognition of their traditional
knowledge for environmental protection and promotion of sustain-
able development policies (Agenda 21, Chapter 26,3). In order to fully
make use of that knowledge, some indigenous peoples might need
greater control over their land, self-management of their resources
and participation in development decisions affecting them (Agenda 21,
Chapter 26.4). The Convention on Biological Diversity (1992) calls upon
its signatories to “respect, preserve and maintain knowledge, innova-
tions and practices of indigenous and local communities embodying
traditional lifestyles relevant for the conservation and sustainable use
of biological diversity and promote their wider application with the
approval and involvement of the holders of such knowledge, innova-
tions and practices and encourage the equitable sharing of the ben-
efits arising from the utilisation of such knowledge, innovations and
practices;” [Article 8(j)]. The UNCED has exposed two aspects that:
(i) by diminishing the limited planetary resources the inhabitants are
condemned to poverty, ill-health, ignorance and war; (it) indigenous
people, being closest to land and natural resources with longest and
richest memories of ecological processes and changes have traditional
knowledge for conservation of their territory and biological diver-
sity. Carrying this theme ahead, the UN Declaration on International
Cooperation, 1990, has stated that in the background of environmen-
tal destruction and external debt, “development” requires a healthy,
literate and skilled population that has the freedom and the means
to participate in decision making. “Ignoring the human potential of
indigenous communities is a waste of resources in the short term, and
a source of a high social and financial costs in the long run.” Ignoring
the value of their traditional knowledge of medicine and ecology is a
poor developmental policy. .
The thrust of above development is to integrate human rights of the
which
indigenous people with their culture, land and ecology with
nation, con-
they are inextricably connected. Their right of self-determi
of their land,
cern for protection of identity and demand for security
of need-based affirm-
resources and institutions as well as state’s policy
great emphasis with an
ative action for their development are given
424 Ethnic Pluralism, t and Social Transformation
Tribal DevelopmenSTONES
i ci a nt ISU EN EE
integrated approach. That also reaffirms how the Indian Constitution
Makers were pioneers in visualising and planning about the appropri-
ate way of tribal development through security, self-government and
social justice.
10.6 Security
To be secure is to be free from dangers, troubles and attacks. Security
gives a feeling of self-confidence, and enables development. In the
context of tribal development, security connotes protection of land
and other natural resources for their reasonable use; protection from
exploitation by moneylenders, land grabbers and contractors, protec-
tion of environment, espécially forest; and safeguarding of their cus-
toms, traditional knowledge and culture. It is a concept supported by
the ideals and practices of self-government and social justice. The con-
stitutional and legal principles about tribal security will be analysed
in this section.
10.6.1 Security of land

For a primarily agro-based community like tribes, land is an invalua-
ble resource. Earth is provider of food, medicine, shelter, and clothing;
it is the seat of spirituality, the foundation of culture and language; it is
the keeper of history, identtyand memory of forefathers.** According
to K. Ramaswamy, J., “Land is their most important natural and valu-
able asset and imperishable endowment from which the tribals derive
their sustenance, social status, economic and social equality, perma-
nent place of the abode and work and living. It is a security and source
for economic empowerment. Therefore, the tribes too have great emo-
tional attachment to their lands. The land on which they live and till,
assures them equality of status and dignity of person and means to
economic and social justice and potent weapon of economic empower-
ment in social democracy.”
The ILO Convention Concerning Indigenous and Tribal Peoples in
Independent Countries, 1989 has recognised the rights of the tribal peo-
ple to land by reiterating the principles declared in earlier international
instruments. Article 15 states, “The rights of the peoples concerned
to the natural resources pertaining to their land shall be specifically
safeguarded. These rights include the right of these peoples to partici-
pate in the use, management and conservation of these resources.” In
cases where the state retains ownership over sub-surface minerals and
other resources, exploration and exploitation of them could be done
*! The World Council of Indigenous Peoples.
” Samatha v. State of A.P., (1997) 8 SCC 191.
ee
Security
e
e
ee ee
after consultation of the peoples and after following the procedures

in order to protect their interests. According to Article 16, the peoples
concerned shall not be removed from the lands which they occupy
only in exceptional circumstance, except after obtaining their free and
informed consent and by following procedure for their appropriate
rehabilitation. The relocation shall be subject to their right to return to
the land in case the ground for relocation ceases to exist. The alterna-
tive land provided in rehabilitation shall, in quality, use, dimension
and title, be at least equal to the land previously occupied. Agenda
21 of the Rio Declaration, 1992 recognises that the land of indigenous
people should be protected from activities that are environmentally
unsound or that the indigenous people consider to be socially and
culturally inappropriate (263 a). Article 26 of the UN Declaration on
the Rights of Indigenous Peoples, 1994 recognises their right to own,
develop, control and use the lands and territories, including the total
environment. The right to restitution of lost lands, the right to restora-
tion of the total environment and right to just and fair compensation in
the form of equal land in case of relocation is recognised. (Articles 27
and 28) The Indian Constitution also recognises right to compensation
at market value when land under personal cultivation and within ceil-
ing limit is taken away by the State. (Article 31-A Proviso)
Historically, tribal areas remained distinct from the general land
management system due to their inaccessibility. Inadequacies in land.
records coupled with poverty and illiteracy gave scope for their exploi-
tation by Zamindars, contractors and middlemen. The protective
measures introduced by the British to deal with the situation included
recognition of community ownership in some area and prohibition
of transfer of land from tribals to non-tribals. “Considering the past
experience and the exploitation of the tribals’ simplicity and truthful-
ness by the non-tribals, it became imperative by statutory safeguards
to preserve the land which is their natural endowment and mainstay
for their economic empowerment.” As Simon Commission report said,
in view of the fact that the tribals were primitive people, simple, unso-
phisticated and frequently improvident, “There was a risk of their agri-
cultural land passing to the more civilised section of the population,
4 The Scheduled Districts Act, 1874 and the Agency Tracts and Land Transfer Act
tanding
of 1917 contain such provision. Section 4 of the Act of 1917 reads, “(1) Notwiths
any rule of law or enactment to the contrary, any transfer of immovable property
situated within the Agency Tracts by a member of a hill tribe shall be absolutely null
and void unless made in favour of another member of a hill tribe, or with the previous
of any other prescribed officer. ie
consent in writing of the Agent or
vention of sub-section ), a
(2) Where a transfer of property is made in contra
Agent or any other prescribed Officer may on application by any one Oa, ,
of the property claiming under the
decree ejectment against any person in possession
heirs.
transfer and may restore it to the transferor or his
426 Ethnic Pluralism, Tribal Development and8Social Transformation
ial hE UES ie MS La ae ttc te Nate Sea
and the occupation of the tribals was for the most part agricultural;
and, secondly, they were likely to get into the ‘wiles of the moneylend-
ers’. Accordingly, in the Government of India Act, 1935 appropriate
provisions for protection of land of the tribals were made.”
Paragraph 5(2) of the Fifth Schedule to the Constitution provides
that the Governor may make regulations for the peace and good
Government of any area in a State which is for the time being a
Scheduled Area. Without prejudice to the above general power, special
power has been conferred under clause (a) to prohibit or to restrict the
transfer of land by or among members of the Scheduled Tribes in such
area; under clause (b) to regulate the allotment of land to members
of the Scheduled Tribes in such area; and under clause (c) to regulate
money-lending to the tribals in the Scheduled Area. According to the
Supreme Court, “The predominant object of Paragraph 5(2) of the Fifth
Schedule of the Constitution and the Regulation is to impose total pro-
hibition of transfer of immovable property to any person other than a
tribal for peace and proven good management of tribal area; to protect
possession, right, title and interest of the members of the Scheduled
Tribes held in the land at one time by the tribals. The non-tribals, at no
point of time, have any legal or valid title to immovable property in
Agency tracts unless acquired with prior sanction of the Government
and saved by any law made consistent with the Fifth Schedule.
Under Paragraph 3(1)(a) of the Sixth Schedule to the Constitution,
the District Councils and Regional Councils have power to make laws
with respect to:
(a) the allotment, occupation or use or the setting apart of land
other than any land which is a reserved forest, for the pur-
poses of agriculture or grazing or for residential or other
non-agricultural purposes or for any other purposes likely
to promote the interests of the inhabitants of any village or
town:
Provided that nothing in such laws shall prevent the com-
pulsory acquisition of any land, whether occupied or unoc-
cupied, for public purposes by the Government of Assam in
accordance with the law for the time being in force authoris-
ing such acquisition;
The words “allotment, occupation or use or the setting apart of land”
have been interpreted restrictively so as not to include transfer in Miss
Sitimon case® and hence a statute imposing restriction upon trans-
fer of land from tribal to non-tribal was considered as ultra vires of
* Samatha v. State of A.P., (1997) 8 SCC 191, para 49,

*© Distt. Council of United Khasi and Jaintia Hills v. Sitimon Sawian, (1971) 3 SCC 708:
AIR 1972 SC 787.
Pikeman
kT welled ss a”
the District Council’s power, and violative of right to equality under
Article 14. The argument based on legislative history of the provision
to the effect that the Sub-Committee and Advisory Committees had
intended to allay the fears of hill tribes about exploitation by the more
advanced people from the plains, and the purpose was to control
immigration of non-tribals into the tribal areas was not accepted. It
is submitted, from the angle of land security to tribals and effective
protection of their social and economic interests under the canopy of
social justice, a restrictive and literal interpretation of the provision is
not justified. It is to be remembered that the Fifth and Sixth Schedules
form an integral scheme of the Constitution with direction, philoso-
phy and anxiety to protect the tribals from exploitation and to pre-
serve valuable endowment of their land for their economic empower-
ment to elongate social and economic democracy with liberty, equality,
fraternity and dignity of their person.
In exercise of the powers under the above clauses, States and
Regional Councils have enacted laws. There are also pre-constitution
laws like the Chota Nagpur Tenancy Act, 1908 providing for protec-
tion of tribal people’s interests in land. The Santhal Pargana Tenancy
(Supplementary Provisions) Act, 1959 and the Bihar Scheduled Areas
Regulations, 1969 prohibit alienation of land of the tribals. These regu-
lations provide for restoration of alienated land to the tribals or when
converted for urban use, to give them equivalent lands. As early as in
1901, in Gujarat, some measures of protection were provided (when it
formed part of the Bombay Province) by amendment of Sections 73-A
and 79-A in the Bombay Land Revenue Code, 1879, and imposed ban
on transfer of land of tribes in those scheduled villages in which sur-
vey and settlement had not been introduced without previous permis-
sion of the Collector. Section 4 of the Agency Tracts and Land Transfer
Act, 1917, a Madras Province legislation, provided that any transfer of
immovable property situated within the Agency Tracts by a member
of ahill tribe shall be absolutely null and void unless made in favour of
another member of a hill tribe, or with the previous consent in writing
of the Agent or of any other prescribed officer. In case of contraven-
tion, the Agent or any other prescribed Officer may on application by
anyone interested, decree ejectment against any person 1n possession
of the property claiming under the transfer and may restore It to the
transferor or his heirs. The Tribal Areas Dastur-Ul-Amal, 1947 also had
1959
protective policy. The Scheduled Areas Land Transfer Regulation,
of failu re to
reiterated the above policy but became ineffective because
rebellions, in
enact detailed rules. In the background of Srikakulam
of land from tribals
1970 total prohibition was imposed upon transfer
428 Ethnic Pluralism, Tribal Developm ent and Social Transfor mation
i EAA AA NATE IEE IE NS ARE i ROE SN
to non-tribals, and burden of proving conformity to law was placed
upon the non-tribal. |
The Maharashtra Land Revenue Code and Tenancy Laws
(Amendment) Act, 1974 and Maharashtra (Restoration of Lands to
Scheduled Tribes) Act, 1974 also prohibit alienation and ensure restora-
tion of alienated lands to the tribes. The Kerala Land Reforms Act, 1963
contains similar provision. The Kerala Scheduled Tribes (Restriction
of Transfer of Land and Regulation of Alienation of Lands) Act, 1975
was enacted for the same object. Detailed rules were made in 1982. The
Adivasi beneficiaries are obligated to pay compensation for improve-
ment of land. According to Section 3(a) of the Andhra Pradesh Agency
Regulation, 1970, notwithstanding anything in any enactment, rule or
law in force in the Agency tracts any transfer of immovable property
situated in the Agency tracts by a person, whether or not such per-
son is a member of a Scheduled Tribe, shall be absolutely null and
void, unless such transfer is made in favour of person, who is a mem-
ber of a Scheduled Tribe or a Society, Andhra Pradesh Co-operative
Societies Act, 1964 (Act 7 of 1964) which is composed solely of mem-
bers of the Scheduled Tribes. When the constitutionality of Section 3
of the Regulation was impugned as violative of Articles 19(1)(f) and
14 of the Constitution, the Supreme Court, in P. Rami Reddy v. State of
A.P.# upheld its validity, holding that the Regulation aims to restore
the lands to the tribals which originally belonged to them but passed
into the hands of non-trivals. It would be unjust, unfair and highly
unreasonable merely to freeze the situation, instead of reversing the
injustice and restoring the status quo ante. The non-tribal economic
exploiters would get no immunity and not be accorded a privileged
treatment by permitting them to transfer the lands and structures,
if any, raised on such lands to non-tribals and to make profits at the
cost of the tribals.17 There was an attempt in 1988 by Tribes Advisory
* (1988) 3 SCC 433: AIR 1988 SC 1626.
” The Court observed, “These tribal communities were in occupation of lands and
lived by shifting cultivation and gathering whatever produce that was available...The
non-tribals who arrived in these areas late in the 19th Century in certain areas and
the early 20th century in certain other areas found the tribals who were in occupation
of these lands an easy prey for the schemes of exploitation. The non-tribals were
lending money to the tribal communities and taking the land belonging to them
as security though nothing was taken in writing from a tribal. The rates of interest
charged ranged between 25 to 50 per cent and in certain cases even 100 per cent... It
is absolutely necessary to create conditions for peace and maintain peace and prevent
the new non-tribals from settling down in the scheduled area. If the alienations are
permitted to the non-tribals there is a danger of large-scale exploitation by the new
non-tribals again with the result peace will be disturbed in that area...Unless new
entrants into the scheduled areas are prevented from settling down in the scheduled
areas by purchasing properties either from tribals or non-tribals, it is not possible to
prevent the exploitation of the unsophisticated tribals.”
Security
sc ad“ She demande, ert ausSprains Be ee ee ED 429
Council to recommend for repeal of the Regulation at the initiative
of
the Government. Under the Fifth Schedule, the Governor
has discre-
tion to take appropriate decision to protect the interests of the Tribes.
How a devious method of land grabbing could be dealt can be seen
by looking to a case from Madhya Pradesh. In State ofM.P. v. Babu Lal,
a non-tribal had filed a suit for declaration against a ST for declaration
that his name be recorded in the revenue record as Bhumiswami. The
defendant did not contest the suit and the parties filed a compromise
conceding to the claim of the plaintiff. The M.P. Land Revenue Code,
1959, had imposed restrictions on the transfer of land by members of
a Scheduled Tribe. The State Government intervened and filed a peti-
tion in the High Court seeking a writ of certiorari for quashing the
judgment of the Civil Court based on compromise. The High Court
dismissed the petition, holding that the State could pursue the alter-
native remedy of filing a suit for declaration that the decree was null
and void. In appeal by special leave, the Supreme Court set aside the
judgment of the High Court and issued a writ of certiorari to quash the
judgment and decree passed.
In Manchegowda v. State of Karnataka®*, the Supreme Court upheld
the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of
Transfer of Certain Lands) Act (2 of 1979), which provided for resump-
tion or restitution of the granted land to SC/ST grantees in case they
had alienated to any person in violation of land grant rules. The Court
held that the Act did not violate right to property, and was justified
as a special provision for SC/ST under Articles 15(4), 19(5) and 46. The
Court looked to the rationale underlying the non-alienation clause
contained in the existing Land Grant Rules and the statutory scheme
needed for restoration of land to the original grantees in view of the
fact that ignorance and poverty of the Scheduled Castes and Scheduled
Tribes grantees was exploited by persons belonging to the affluent and
powerful sections to obtain sales or mortgages either for a nominal
consideration or for no consideration at all and that they have become
the victims of circumstances. In Lingappa Pochanna Appelwar v. State
of Maharashtra>" the Court upheld the constitutionality of similar pro-
visions of Maharashtra Restoration of Lands to Scheduled Tribes Act,
1974.
"The Supreme Court in Amrendra Pratap Singh v. Tej Bahadur Prajapati>*
took another pro-tribe approach by holding that loss of land belonging
48 N. Subba Reddy, “Sword of Damocles over Tribal People of Andhra Pradesh”
Economic and Political Weekly, 1-7-1989, at p. 1442.
#» (1977).2 SCC 435.
® (1984) 3 SCC 301: AIR 1984 SC 1151.
51 (1985) 1 SCC 479: AIR 1985 SC 389.
52 (2004) 10 SCC 65: AIR 2004 SC 3782.
430 Transformation
Ethnic Pluralism, Tribal Development and Socialen
a a ee
to the tribal because of adverse possession by a non-tribal amounted
to “transfer”, which was prohibited under the Orissa Scheduled Areas
Transfer of Immovable Property (by Scheduled Tribes) Regulations (2
of 1956). According to the Court, this would ensure that a member of
an aboriginal tribe indefeatably continues to own the property and
that non-tribals do not succeed in making inroads amongst the tribals
by acquiring property and developing roots in the habitat of tribals.
The Court observed, “The tribals need to be settled, need to be taken
care of by the protective arm of the law, and be saved from falling prey
to unscrupulous device so that they may prosper and by an evolution-
ary process join the mainstream of the society.”
In spite of legal measures, land grabbing has been practiced through
forcible eviction, benami transactions, collusive decrees, mortgage,
share cropping, forged documents, marriage with a tribal woman,
adoption of a non-tribal by a tribal, and entry of land records in the
name of a tribal farm servant or concubine who may work as bonded
labour’? Acquisition of tribal land by the Government for various devel-
opmental projects has also resulted in loss of substantial land. Some
of the deficiencies in the present legal regime include: confinement of
restriction on land transfer only to notified area; lack of clear policy
about adverse possession; absence of suo motu actions by governmen-
tal bodies; infirmities in land records; lack of stringent penal provi-
sions; disposition of tribal land on account of non-payment of Bank
loan; and absence of adequate provisions for restoration of land to trib-
als irrespective of the issue whether it is granted one or not. Because of
these factors, as reported on the basis of empirical research, the extent
of land holding by the STs in some of the villages in Andhra Pradesh
has drastically reduced+4 According to one estimate, 55 per cent of cul-
tivable area in the scheduled area of Andhra Pradesh is in the hands of
non-tribals, which is in disproportion to their population.
°° R.C. Verma, Indian Tribes through the Ages (Publications Division, New Delhi
1990) at pp. 71-72; N. Subba Reddy, “Sword of Damocles over Tribal People of Andhra
Pradesh” Economic and Political Weekly, 1-7-1989, at p. 1442.
* According to Prabhakar Reddy, in Narnour village it declined from 90 per cent
in 1978 to 21 per cent in 1988 and in Boyagutta village, from 86 per cent to 23 per cent.
See, Prabhakar Reddy, “Tribal Land Alienation in Andhra Pradesh” Economic and
Political Weekly, 15-7-1989; see also, S.N. Dubey and Ratna Murdia (Ed.), Land Alienation
and Restoration in Tribal Communities in India (Himalaya Publishing House) see also, Prof.
Haimendrof, Tribes of India - The Struggle
for Survival; On the other hand, excessive land
possession by some tribal individuals has not been effectively dealt by application of
law. See, for discussion, Dr. PV. Ramesh, “Land Reforms Land Transfer in Scheduled
Area” in “Scheduled Tribal and Social Justice” at pp. 178, 202.
Security 43]
DMM eee eno =| ABE
10.6.2 Security offorest dwellers’ right to land
The symbiotic relationship between the tribals and forests is well-
established over the years both in temporal and spiritual sense. The
national policy on forests, 1894, introduced state control over for-
ests and curtailed the rights and privileges of the tribals over forest
resources. The new forest policy of 1952 contemplated withdrawal of
facility of free grasing in forests and efforts to wean away the tribals
from the traditional practice of shifting cultivation. In order to increase
the forest cover, treeless lands were also taken for forest development,
and settlers in those areas were declared as encroachers liable for evic-
tion. The Forest Act of 1980 prohibits depletion of reserved forest, or
the diversion of forest land for any “non-forest” purpose, and pre-
vents cutting of trees in a forest without prior approval by the Central
Government. The forest policy of 1988 prohibited plantation of horti-
cultural crops in forests, and banned assignment or lease of forestland
to people or institutions not wholly governed by government.
It is common knowledge that the Adivasis and other backward peo-
ple living within the jungle used the forest area as their habitat. They
had raised several villages for generations and had been using the jun-
gles around for collecting the requirements for their livelihood, fruits,
vegetables, fodder, flowers, timber, animals by way of sports and
fuel wood. When a part of the jungle became reserved forest and in
regard to other proceedings under the Act were taken, the forest offic-
ers started interfering with their operations in those areas. Criminal
cases for encroachments as also other forest offences were registered,
and systematic attempt was made to obstruct them from free move-
ment. When approached for remedy through a PIL in Banawasi Seva
Ashram the Supreme Court on 22nd August 1983 asked the parties to
work out a formula under which claims of adivasis or tribals in Dudhi
and Robertsganj Tehsils, to be in possession of land and to have regu-
larisation of such possession might be investigated by a high powered
committee with a view to reach at a final decision in regard to such
claims. Meanwhile, no further encroachments shall be made on forest
land nor will any of the Adivasis or tribals be permitted under colour
of this order or any previous order to cut any trees and if any such
attempt is made, it will be open to the State authorities to prevent such
cutting of trees and to take proper action in that behalf but not so as
to take away possession of the land from the Adivasis or tribals. The
establishing, functioning and outcome of High Powered Committee
was monitored by the Supreme Court through subsequent orders.
uction
The problem of encroachment of forestland resulting in destr
dwelling
of the forest in Andaman Islands in which Onbe tribes were
case (1999) when on
came up before the Supreme Court in Godavarman
432 Development and Social Transformation
Ethnic Pluralism, TribalAER
a hE SOTO IS
behalf of the tribe some NGOs filed interlocutory application*’ The
Supreme Court discussed in 2002 the proposal of amicus curiae for
removal of all encroachers who did not meet the deadline of 1980 for
regularised encroachments, and called for responses of States within 6
weeks. The proposal was confirmed, and the MoEF issued adirective
to all states that they summarily evict all illegal encroachers on forest
land and regularise only eligible encroachments before 1980. The direc-
tive had detrimental effect upon the tribal community. Destruction
of huts and homes of the tribals by using elephants in Assam, lack
of opportunity to dispute the eviction notice, and eviction without
reaping the standing crops in Maharashtra received pro-tribe public
sympathy. Failure of tribals to maintain proper documents owing to
their illiteracy, inability to prove their residency before 1980 and inac-
curate departmental surveys identifying non-forest area as forest had
resulted in unjustified eviction5* In 2002-2003 about 1.68 lakh families
were evicted. With the change of Government after election in 2004 the
issue of effective protection of forest dwellers’ right gained political
attention. On 13 December 2005, the Minister for Tribal Affairs intro-
duced the Scheduled Tribes (Recognition of Forest Rights) Bill, 2005
into Parliament, “to recognise and vest the forest rights and occupa-
tion in forest land in forest dwelling Scheduled Tribes who have been
residing in such forests for generations but whose rights could not be
recorded and to provide for a framework for recording the forest rights
so vested and the nature of evidence required for such recognition and
vesting in respect of forest land.” The Bill was then referred to the Joint
Parliamentary Committee. The committee suggested for inclusion of
“other traditional dwellers” as beneficiaries; for recognising grama
sabha’s power to identify the beneficiaries, and for prohibiting diver-
sion of the forest for other use.
The Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 came into being on 29th
December 2006. The main aim of the Act is to recognise and vest
upon forest dwelling STs (FDST) and other traditional forest dwellers
(OTFD), who have been residing in forest from generations but whose
rights could not be recorded, their forest land rights and occupation
in forest land. It imposes responsibilities upon, and confers author-
ity to them for sustainable use, conservation of biological diversity
°° T.N. Godavarman Thirumalpad v. Union of India, (2002) 10 SCC 606: AIR 1999 SC
43. Meanwhile the Calcutta High Court had issued interim order in 1999 prohibiting
felling of naturally grown trees on the islands.
*° In Banwasi Seva Ashram v. State of U.P., (1992) 2 SCC 202: AIR 1992 SC 920, the
Supreme Court had directed the Empowered Committee to conduct an inquiry,
receive testimonies of inhabitants and related documents filed by Local Government
in cases where the claims were not supported by documents.
Security
eee ein = BOS
433
and maintenance of ecological balance and thereby strengthening
the
conservation regime of the forest while ensuring livelihood and food
security of the FDST and OTED who are integral to the very survival
and sustainability of forest eco system. It has tried to address the long
standing insecurity of tenurial and access rights of FDST and OTFD
including those who were forced to relocate their dwelling due to State
development interventions.
“Forest Dwelling Scheduled Tribes” means the members or com-
munity of the Scheduled Tribes who primarily reside in and who.
depend on the forests or forestlands for bona fide livelihood needs
and includes the Scheduled Tribe pastoralist communities. “Other tra-
ditional forest dweller” means any member or community who has for
at least three generations (25 years’ each) prior to 13 of December 2005
primarily resided in and who depend on the forest or forests land for
bona fide livelihood needs.
The forest rights of the FDST and OTFD mean [(Section 3, sub-sec-
tion (1)] the following rights, which secure individual or community
tenure or both, on all forest lands, namely: ;
(a) right to hold and live in the forest land under the individual
or common occupation for habitation or for self-cultivation
for livelihood by a member or members of a forest dwelling
Scheduled Tribe or other traditional forest dwellers;
(b) community rights such as nistar, by whatever name called,
including those used in erstwhile Princely States, zamindari
or such intermediary regimes;
(c) right of ownership, access to collect, use, and dispose of minor
forest produce’? which has been traditionally collected
within or outside village boundaries;
(d) other community rights of uses or entitlements such as fish
and other products of water bodies, grasing (both settled
or transhuman) and traditional seasonal resource access of
nomadic or pastoralist communities; !
(e) rights including community tenures of habitat and _habi-
tation for primitive tribal groups and _pre-agricultural
communities;
(f) rights in or over disputed lands under any nomenclature in
any State where claims are disputed;
(g) rights for conversion of Pattas or leases or grants issued by
any local authority or any State Government on forest lands
to titles;
e of plant origin
57 “Minor forest produce” includes all non-timber forest produc lac, tendu
cocoons, honey, wax,
including bamboo, brush wood, stumps, cane, tussar,
roots, tubers and the like. (S. 2)
or kendu leaves, medicinal plants and herbs,
434 Ethnic Pluraliism, Tribal Developmen t and Social Transformation
i ei er nT SENET
(h) rights of settlement and conversion of all forest villages, old
habitation, unsurveyed villages and other villages in forests,
whether recorded, notified or not into revenue villages;
(i right to protect, regenerate or conserve or manage any com-
munity forest resource which they have been traditionally
——
protecting and conserving for sustainable use;

( rights which are recognised under any State law or laws of
any Autonomous District Council or Autonomous Regional
—
Council or which are accepted as rights of tribals under any

traditional or customary law of the concerned tribes of any
State;
(k) right of access to biodiversity and community right to intel-
lectual property and traditional knowledge related to biodi-
versity and cultural diversity;
(1 any other traditional right customarily enjoyed by the forest
~~
dwelling Scheduled Tribes or other traditional forest dwell-

ers, as the case may be, which are not mentioned in clauses
(a) to (k) but excluding the traditional right of hunting or
trapping or extracting a part of the body of any species of
wild animal; and
(m) right to in situ rehabilitation including alternative land in
cases where the Scheduled Tribes and other traditional for-
est dwellers have been illegally evicted or displaced from
forest land of any description without receiving their legal
entitlement to rehabilitation prior to 13 December 2005.
Under Section 4, the Central Government recognises and vests the
above forest rights in the FDST and OTFD. This is subject to the con-
dition that such Scheduled Tribes or tribal communities or other tra-
ditional forest dwellers had occupied forest land before 13 December
2005. The right shall be heritable but not alienable or transferable and
shall be registered jointly in the name of both the spouses in case of
married persons and in the name of the single head in the case of a
household headed by a single person and in the absence of a direct
heir, the heritable right shall pass on to the next-of- kin [Section 4 sub-
section (4)]. Such land shall be under the occupation of an individual
or family or community on the date of commencement of the Act and
shall be restricted to the area under actual occupation and shall in no
case exceed an area of four ha [Section 4 sub-section (6)]. The vesting of
land is without any encumbrance [Section 4 sub-section (7)]. The right
is also available to the FDST and OTFD who can establish that they
were displaced from their dwelling and cultivation without land com-
pensation due to State development interventions, and where the land
has not been used for the purpose for which it was acquired within
=
Security
five years’ of the said acquisition [Section 4 sub-section (8)]. While

Section 3(1)(m) gives right to alternative land for evictions
done prior
to 13 December 2005, this clause is prospective in operation, and
gives
protection against displacement without rehabilitation. In the light
of Narmada Bachao Andolan* judgment that insisted on forest dwell-
ers’ right to rehabilitation, the statutory recognition of this right has
a potentiality for avoiding eviction without meaningful rehabilita-
tion. No FDST and OTFD shall be evicted or removed from forest land
under his occupation till the recognition and verification procedure is
complete [Section 4, sub-section (5)].
However, the Central Government shall provide for diversion of
forest land whose width is less than one ha with the permission of
Gram Sabha for the following facilities managed by the Government
which involve felling of trees not exceeding 75 trees per ha, namely:
schools; dispensary or hospital; anganwadis; fair price shops; electric
and telecommunication lines; tanks and other minor water bodies;
drinking water supply and water pipelines; water or rain water har-
vesting structures; minor irrigation canals; non-conventional source
of energy; skill upgradation or vocational training centres; roads; and
community centers [Section 3 sub-section (2)].
The Act has tried to strike a fair balance between protection of wild
life and forest rights of FDST and OTFD. It defines critical wild life
habitat as “such areas of National Parks and Sanctuaries where it has
been specifically and clearly established, case by case, on the basis
of scientific and objective criteria, that such areas are required to be
kept as inviolate for the purposes of wildlife conservation as may be
determined and notified by the Central Government in the Ministry
of Environment and Forests after open process of consultation by an
Expert Committee.” Quite importantly, the Act provides that [Section
4 sub-section (2)] the forest rights recognised under the Act in critical
wildlife habitats of National Parks and Sanctuaries may subsequently
be modified or resettled, provided that no forest rights holders shall be
resettled or have their rights in any manner affected for the purposes
of creating inviolate areas for wildlife conservation except in case all
the following conditions are satisfied, namely:
(a) the process of recognition and vesting of rights as specified in
Section 6 is complete in all the areas under consideration;
(b) it has been established by the concerned agencies of the State
Government, in exercise of their powers under the Wild Life
(Protection) Act, 1972 that the activities or impact of the pres-
ence of holders of rights upon wild animals is sufficient to
India, (2000) 10 SCC 664: AIR 2000 SC 8751.

58 Narmada Bachao Andolan v. Union of
88 e e ———— ———
cause irreversible damage and threaten the existence of said
species and their habitat;
(c) the State Government has concluded that other reasonable
options, such as, coexistence are not available;
(a) a resettlement or alternatives package has been prepared
and communicated that provides a secure livelihood for
the affected individuals and communities and fulfils the
requirements of such affected individuals and communi-
ties given in the relevant laws and the policy of the Central
Government;
(¢) the free informed consent of the Gram Sabhas in the areas
concerned to the proposed resettlement and to the package
has been obtained in writing; and
(f) no resettlement shall take place until facilities and land allo-
cation at the resettlement location are complete as per the
promised package:
Provided that the critical wildlife habitats from which rights hold-
ers are thus relocated for purposes of wildlife conservation shall not
be subsequently diverted by the State Government or the Central
Government or any other entity for other uses.
The framework for conservation of natural resources and wildlife
along with protection of rights of forest dwellers is clear in the above
scheme. In order that the protection to forest dwellers do not remain
short-lived, but endure aslasting rights, the conservation factor for
ensuring biodiversity needs to be given greater emphasis.?
The concern for ecological balance is also reflected in the duties
imposed upon the FDST and OTFD, Gram Sabha and Village Level
Institutions. They are empowered (Section 5) to (a) protect the wild
life, forest and biodiversity; (b) ensure that adjoining catchments area,
water sources and other ecological sensitive areas are adequately pro-
tected; (c) ensure that the habitat of FDST and OTFD is preserved from
any form of destructive practices affecting their cultural and natural
heritage; (d) ensure that the decisions taken in the Gram Sabha to regu-
late access to community forest resources and stop any activity which
adversely affects the wild animals, forest and the biodiversity are com-
plied with.
Grass root democracy is relied upon in decision-making process
regarding identification of the genuine occupants. The Gram Sabha
shall be the authority for determining the extent of individual or com-
munity forest rights or both given to FDST and OTFD without the
local limits of its jurisdiction. It will be responsible for claims consoli-
dating and verifying them and preparing a map delineating the area
” Ashis Kothari, “For Lasting Rights” Frontline, 12-1-2007 at p. 14.
Security
e e ti‘“<C 437
of each recommended claim. Gram Sabha shall pass a resol
ution to
forward the copy to Sub-Divisional Level Committee. Any aggri
eved
party of Gram Sabha may prefer petition to the sub-divisional com-
mittee within 60 days from the date of passing resolution by Gram
Sabha with reasonable opportunity given to him to present his case.”
The Sub-Divisional Level Committee shall examine resolution and
prepare a record of the forest rights and forward it through the Sub-
Divisional office to District Level Committee for a final decision.”
If any person is aggrieved by the decision of Sub-Divisional Level
Committee, he can prefer an appeal to the District Level Committee
within 60 days which shall consider the petition but it cannot be made
directly against Gram Sabha.% The State Government shall constitute
District Level Committee to approve record of forest rights prepared
by Sub-Divisional Level Committee and the decision becomes final.*
Further, the State Government shall constitute a State Level Monitoring
Committee to monitor the process of recognition and vesting of forest
rights and to submit to the nodal agency the reports.®
10.6.3 Security from deforestation and environmental pollution

“go per cent of the Scheduled Tribes predominantly live in forest areas
and intractable terrains; 95 per cent of them are below poverty line and
totally depend upon agriculture or agriculture based activities; and
some of them turn out as migrant construction labour due to their dis-
placement from hearth and home for the so-called exploitation of min-
erals and construction of projects” observed Justice K. Ramaswamy
in Samata®. Legal measures for protection of forest have responded to
this factual situation. Paragraph 5(2) of the Fifth Schedule that empow-
ers the Governor to restrict or prohibit the transfer of land by or among
the members of ST or to regulate the allotment of land to STs has been
understood in broader sense to include the power to restrain the use
of land for no-forest purposes. In Samata, protection of forest against
its depletion through mining was the issue. The Supreme Court relied
on the provision under Forest Conservation Act, 1988 which provided
that no State Government or other authority shall make, except with
prior approval of the Central Government, (‘) any order directing that
any reserved forest or any portion thereof shall cease to be a reserved
6 S. 6(1) of the Forest Dwellers Act, 2006.

61 S_ 6(2) of the Forest Dwellers Act, 2006.
6 §. 6(3) of the Forest Dwellers Act, 2006.
6 S, 6(4) of the Forest Dwellers Act, 2006.
64 Ss. 6(5) and (6) of the Forest Dwellers Act, 2006.
6 S_ 6(7) of the Forest Dwellers Act, 2006.
6 Para 11, supra, n. 42.
438 Ethnic Pluralism, Tribal Devel Social Trans
opment and a formation
ec iia i le i ne ae ia ea Pt EN ES
forest, (i) that any forest land or portion thereof may be used for any
non-forest purpose; (iii) that any forest land or any portion thereof may
be assigned, by way of lease or otherwise, to any private person or to
any authority or corporation, agency or any other organisation, not
owned, managed or controlled by the Government; and (i) that any
forest land or any portion thereof may be cleared or trees which have
grown natural in the land or portion of the land for the purpose of
using it for reforestation. Since transfer of land in Schedule V area for
mining purpose amounted to violation of the FC Act, the Court disal-
lowed future use of mining leases, except the state-sponsored one, that
too, subject to strict compliance with the FCA.
Under Paragraph 3(1) of the Schedule VI, the Regional Council
has the power to manage any forest other than reservea forest and
to regulate the practice of jhum or other forms of shifting cultivation.
Regarding reserved forest identified under Assam Forest Regulation,
the Council has no power of intervention.
The efforts to exclude human intervention in national parks and
sanctuaries have necessitated balancing between interests of the forest
dwelling tribals to collect minor forest produce and to exercise other
traditional rights on the one hand, and conservation of forest and
wildlife on the other. In Animal and Environment Legal Defence Fund’,
the Supreme Court accommodated both the claims by subjecting the
licensed fishing activity in Pench National Park to extensive monitor-
ing and regulation in oraer to ensure that fishing does not disturb
the wildlife situation. Issuing of photo identity card to tribal fisher-
men, limits on seasons and timings for fishing, restraints on entry
and exit points and prevention of use of fire are some of the measures
directed by the Court. In Pradeep Krishen™, where constitutionality of
Madhya Pradesh government’s order permitting collection of tendu
leaves from sanctuaries and national parks by villagers was in issue,
the Supreme Court directed the state government to complete the pro-
cedure for final declaration on sanctuaries and national park within
six months’. In Niyamavedi®, the Kerala High Court declined to inter-
fere with the ouster of Adivasis from six ancient settlements in the
context of establishing a biological park in an evergreen forest on the
ground that the park would promote conservation of flora and fauna
of the Western Ghats. This can be contrasted to the Guwahati High
Court judgment” that quashed the governmental order that ordered
for shifting of villages, which fell within the sanctuary. It is important
*” Animal and Environment Legal Defence Fund v. Union of India, (1997) 3 SCC 549: AIR
1997 SC 1071.
** Pradeep Krishen v. Union of India, (1996) 8 SCC 599: AIR 1996 SC 2040.
® Niyamavedi v. State of Kerala, AIR 1993 Ker 262.
” Jaladhar Chakma v. Commr., Aizawl, AIR 1983 Gau 18.
Securi ty
SES
eteabealpaneeotetaeaheebad
iin 0 bathe baidademaai 439
to note that that security of both forest and tribals is a balan
cing task
in the socio-economic reform.
é
Linking of indigenous rights to conservation of natural resources
has great contribution to efficient resource management. Their com-
petence to contribute comes from their intimate knowledge of local
geography and ecology, their land use and resource management prac-
tices and expertise, and their spiritual and traditional commitment
to resource conservation. The potential benefits can be identified in
enhanced protection of human rights and promotion of welfare, facili-
tating of rural and economic development, and extension of moral and
legal support to communitarian efforts.
10.6.4 Security from exploitation by moneylenders and others

The wiles of moneylenders and traders exploit the innocence of trib-
als. Often, the honest, truthful and hard working tribals become prey
for the greed and exploitation by non-tribals. Tribals are forced to
repay their loan disproportionately in three or four-fold in kind due
to exorbitant rate of interest. Poverty, defects in money lending law,
complicated procedure in institutional finance, lack of supply of essen-
tial commodities and availability of private finance are the reasons for
indebtedness. About 85 per cent of the tribal families are said to be
affected by indebtedness.
Constitutional protections are available under the Fifth and Sixth
Schedules. Paragraph 5(2)(c) of the Fifth Schedule empowers the
Governor to regulate the carrying on of business as moneylender by
persons who lend money to members of ST in such areas. Paragraph 10
of Sixth Schedule empowers the District Council to make regulations
for control of money-lending or trading within the district by per-
sons other than STs resident within the district. In particular, it may
prescribe licence requirement, prescribe maximum rate of interest,
require maintenance of accounts and confine the opportunity of trad-
ing to members of ST of the district. In Hari Chand Sarda v. Mizo District
Council7, the refusal under the Lushai Hill District (Trading by Non-
tribals) Regulations, 1953 to renew licence granted to a non-tribal was
struck down by majority of three-Judge Bench of the Supreme Court as
an unreasonable restriction on freedom guaranteed under Article 19(1)
(g). It is submitted, the majority view is problematic as it ignored the
spirit and purpose of the 6th Schedule provision. The minority view 1s
preferred by Hidayatullah, J. in a lecture? Fifteen states have enacted
on
71 Stan Stevens (Ed.), Conservation through Cultural Survival (Island Press, Washingt
DC 1997) at pp. 266-67.
iain’ .
72 AIR 1967 SC 829.
to the Constitution of India, Anandoram
73M. Hidayatullah, The Fifthand Sixth Schedule
i ea STARRED «TESS MESA SSIS SALINE TSE cl ASS
legislation regulating money lending activity and debt relief applicable
to Scheduled Tribes and others” Under the Agency Tracts and Land
Transfer Act (1 of 1917), to mitigate the hardships of the tribals from
the hands of moneylenders and other migrants from plain area, provi-
sion was made so that rate of interest would not be exceeding 24 per
cent per annum and compound interest would not be charged nor any
collateral advantage would be taken by the moneylenders. The total
interest allowed or decreed should not exceed the principal amount.
Similar policy is traceable in other legislation.
10.6.5 Security of tradition, custom and identity

Recognition of the customs and traditions of indigenous people go
a long way in securing their distinct identity. The ILO Convention
Concerning Indigenous and Tribal Peoples in Independent Countries,
1989 states that in applying national laws and regulations to the peo-
ples concerned, due regard shall be given to their customs or custom-
ary laws; that these peoples shall have the right to retain their own
customs and institutions, where these are not incompatible with fun-
damental rights defined by the national legal system and with inter-
nationally recognised human rights (Article 8). While right to retain
customary law itself is a human right, subjection of the customary law
to other human rights and Fundamental Rights gives scope for purg-
ing the customary law and eliminate its objectionable parts. This is
a welcome development from the perspective of social reforms and
better protection of interests of women. According to Articles 12 and
13 of the Draft UN Declaration on Rights of Indigenous Peoples, 1994,
the indigenous peoples have the right to practise and revitalise their
cultural traditions and customs, their spiritual and religious traditions
and ceremonies. As per Article 4 indigenous peoples have the right to
maintain and strengthen their distinct political, economic, social and
cultural characteristics, as well as their legal system. Article 27 of the
ICCPR, 1966 also recognises the rights of ethnic minorities to enjoy
their own culture.
Amidst various components of culture, their family law constitutes
one important aspect, which they prefer to cherish. Both the Fifth and
Sixth Schedules contain provisions for allowing them to continue and
for excluding their operation of general law and reforms from their
application to tribals. According to Paragraph 5 of the Fifth Schedule,
the Governor may with the advice of Tribal Advisory Council exclude
Baruah Law Lecture (1978).
4 Andhra. Pradesh, Assam, Bihar, Gujarat, Kerala, H.P., M.P., Maharashtra,
Karnataka, Orissa, Rajasthan, T.N., Tripura, U.P., West Bengal; See, R.C. Verma, Indian
Tribes through the Ages, Annexure X at pp. 228-29.
Security 44]
ee ee
the operation of general law upon the tribals
in the matters of mar-
riage; inheritance of property; social customs of the
tribes; and any
matter relating to village administration including the
establishment
of village panchayats. Under Paragraph 3(1) the Regional
Council for
an autonomous region shall have power to make laws with
respect
to inheritance of property, marriage, and social custom. Hindu
Law
statutes contain clear provisions to exclude the STs from the applica-
tion of the statutes unless the Central Government, by notification
in
the Official Gazette, directs otherwise7> According to the Panchayats
(Extension to Scheduled Areas) Act, 1996 (i) State legislation shall be
in consonance with the customary law, social and religious practices
and traditional management practices of community resources; (ii) A
village shall ordinarily manage its affairs in accordance with tradi-
tions and customs; and (iii) Every Gram Sabha shall be competent to
safeguard and preserve the traditions and customs of the people, their
cultural identity, community resources and their customary mode of
dispute resolution.
In view of these norms favouring status quo, the task of social trans-
formation through introduction of principles of gender and social jus-
tice is to be handled through social consensus to be duly evolved and
sensitised by modern education. The need to balance between conti-
nuity and change is more clearly visible in this domain.
Research survey and writings have mapped the informal legal sys-
tem of tribes? However, systematic codification has not yet taken
place. Diversity persists in their concepts, practices, approaches and
procedures. A brief glimpse of literature will disclose that many of the
tribal customary laws reflect norms of male dominated society but in
some tribes matriarchial system is prevalent; and that gradual social
changes are occurring due to economic factors and modernisation, but
far reaching changes are yet to occur because of lack of preparedness.
In the North-East, amidst Garo and Khasi hill tribes, mother kinship
is dominant and the mother is the custodian of family rites and prop-
erty. In Garo tribe, a chosen daughter, and in Khasi tribe, the youngest
sister of the family is entitled to receive major share of family proper-
ty77 Substitution of the property holder by other competent member
in case of divorce, desertion or death or by adoption keeps the system
75 For example S. 2(2) of the Hindu Marriage Act, 1955; S. 2(2) of the Hindu Succession
Act, 1956 etc. ane
76 KS. Singh, Tribal Ethnography, Customary Law and Change (Concept Publishing Co.,
New Delhi 1994); W.G. Archer, Tribal Law and Justice: A Report on the Santal (Concept
Justice in
Publishing Co., New Delhi 1984), Kusum and Bakshi, Customary Law and
Tribal Areas of Meghalaya (1982). . eat
TSK: pe Enforcement in Tribal Areas (Ashis Publishing House, New Delhi
1987) at p. 92.
442 sm, Tribal Develo
Ethnic Pluraliae pment and Social Transformation
5 AI Sk sc A Re cae i: tt re te ahSS nt tt
going. Husband lives in wife’s place of residence. Non-inheriting
daughters marry outside the mother’s clan and live away from parents.
Amidst Jaintia tribe, father has titular position, and daughters inherit
from their maternal uncle and brothers/* Mikirs follow patrilineal sys-
tem, and sons only, and not daughters, inherit property” In Lushai,
Lohit, Kharbi and Khamti tribes, land is held in community, and the
village head allots lands to various families for jhum cultivation.* In
the plains of Bihar, Orissa and West Bengal and hilly areas of Madhya
Pradesh, Andhra Pradesh and Karnataka, right of inheritance to the
family property is exclusively vested in sons whereas female members
of the family have right to maintenance.*' In Madhu Kishwar v. State of
Bihar®, the Supreme Court abstained from invalidating this position
by application of equality principle but provided effective protection
to the right of maintenance by linking it to right to dignified life. The
judgment also points out how the tribal community resisted the efforts
of changing the customary law when the judicially initiated move for
reform was put forward by the state before them, and how difficult it
is to herald waves of reforms.
Marital and sexual life amidst indigenous peoples constitutes
another interesting area where traces of both gender equality and
male dominance can be found simultaneously. In the matter of choice
of life partners or severance of relations, much liberty is given to
individuals in majority of tribal communities. Pre-marital sex is not
a taboo in majority of tribes. Youth dormitories are maintained by
Garo, Naga, Muria, Oraon, Munda, Santal and other tribes for sexual
education of adolescents.*3 Loyalty to the husband is a required virtue
after marriage. Marriage with elder brother’s widow is a kind of social
arrangement, perhaps for the security of the woman.** Monogamy is
the general practice; but polygamy for justified reasons as that of bar-
® Ibid, at p. 94.
” Ibid, at p. 95.
" S.B. Nandi, R.P. Athraparia and S.K. Mukherjee, “Tribal Customary Law in
North-East India” in K.S. Singh, supra, n. 76 at pp. 23-5.
" Dikshit Sinha, “Customary Law and Crime among a Hunting and Gathering
Tribe” in K.S. Singh, supra, n. 76 at pp. 67, 72; A.K. Adhikary, “Customary Law among
Juang of Orissa” at pp. 107, 115; Pashupati Prasad Mahato, “Customary Law of the
Bathudi of Orissa” at pp. 117, 125; William Ekka, “Customary Law among the Oraons
of Bihar” at pp. 127, 135; P.K. Misra, “Tribal Customary Laws in South India” at pp. 215,
230; S.N. Mahato, “Concept of Property and Inheritance among Irulas” at pp. 233-35; J.
Parthasarathy, “Customary Law and Deviance — A Study of the Yerukula” at pp. 255,
267. See also, W.G. Archer, Tribal Law and Justice — A report on the Santals at pp. 35-47.
*? (1996) 5 SCC 125: AIR 1996 SC 1864.
© See, K.S. Singh, supra, n. 76; S.K. Ghosh, at pp. 99-100.
“ B.K. Dasgupta, “The Tribal Law of Kol” K.S. Singh, supra, n. 76 at p. 178; WG.
Archer, at p. 269.
Security 443
ie siraineae eee nthe. RE a a
renness is also allowed, and is rare in practice. Marriage
by capture,
marriage by elopement, marriage by forced intrusion into
the house-
hold of the bridegroom, marriage by mutual love and acceptance
are
prevalent in addition to arranged matriage.* Marriages are conducted
after attaining puberty. Generally, marriages outside the clan are
prac-
ticed. Widow remarriage is traditionally allowed. The practice of Pay-
ing bride price to the father or family of the bride by the bridegroom
is widely prevalent.” Treating women as property and objects of
transactions reflects a low social position attributed to woman. While
in some communities it is nominal, in some other communities it is
highly compelling for the willing couples to opt for marriage by elope-
ment. Marriage is associated with ritual and community participa-
tion. Marriages within the clan or among blood relatives are generally
prohibited. Divorce is granted by village council on grounds of deser-
tion, ill treatment, adultery, infidelity, sickness and incompatibility of
the spouses.* Depending upon the fault, bride price is to be repaid
or returned with or without penalty. As S.K. Ghosh comments about
the practice prevalent among tribes of Orissa, “Divorces are common.
Girls can leave their husbands whenever they so desire, without fear of
social opprobrium or scandal. Divorces are decided by local councils
and recourse to a law court is unheard of.” Father takes his children
into his custody after divorce. The practice of adoption of children is
prevalent among Santals and Totos. Among Juang and Oraon tribes of
Orissa, women have unusual freedom and status to dissolve the mari-
tal tie if they are not satisfied with the husbands.”
Among some tribes like Bhils, communitarian feeling is quite high,
especially in sharing the marriage expenses, supporting construction
of houses, and meeting the situations of ill-health and cattle diseases.”
Community’s solidarity is also the basis for supporting the mecha-
nism for administration of justice. Summoning the witnesses, hearing
the aggrieved and offending parties openly and before the villagers,
and pronouncement of verdict by the local council are the broad fea-
tures of the tribal administration of justice. Graded system of punish-
ment is in operation.
“5 WG. Archer, at p. 158; A.K. Adhikary, “Customary Law among the Juang of
Orissa”, K.S. Singh, at p. 112.
86 Ibid. W.G. Archer, supra, n. 76 at pp. 227-93. S.K. Ghosh, supra, n. 77 at p. 95.
87 A.K. Adhikary, “Customary Law among the Juang of Orissa”, K.S. Singh, at
Pp: 112, Tk. Misra, “Tribal Customary Laws in South India” 215 at p. 230.
88 WG. Archer, supra, n. 76 at pp. 330; S.K. Ghosh, supra, n. 77 at p. 95.
* Ibid, at p. 96. . aia
“Tribal Customa ry Law in Eastern India” in
” Bhabananda Mukherjee, R.K. Sinha,
K.S. Singh, supra, n. 76 at p. 60.
% GS. Narwani, Customary Law of Tribals (2004), at p. 37.
444 Tribal Development iandleSocial
Ethnic Pluralism, ea Transformation
i sa ie AS ee eS EE
From the law-society perspective, it can be noticed that the extent of
change in tribal customary law is peripheral, and one that is initiated
from within although in response to the influence of other legal norms.
Gender justice component in their family law is weak, which could
not be adequately cured because of exclusionist policy. The influence
of Brahmo movement on Bodo customary law introduced the ele-
ments of Hindu law of marriage. The impact of Christian family law
upon Mizo and Nicobarese tribes has resulted in erosion of traditional
norms and adoption of new principles. The Rabhas have been gradu-
ally shifting from matriliny to patriliny. In the North-Western India
there has arisen coexistence of customary law and state law. The trend
of development seems to keep faith in consensus-based social change,
which is quite slow and uncertain in the context of tribal tradition-
ridden society.
10.6.6 Security against insurgency

The North-East part of India has faced insurgency because of pressure
upon resources owing to influx of illegal migrants from neighbouring
countries and settlers from other parts of India. The United Liberation
Front of Assam and National Socialist Council of Nagaland had
spearheaded armed insurgency and violence against the government
and civilians in 1980s and 1ggos. The application of special powers
under the Armed Forces Special Power Act, 1972, Assam Maintenance
of Public Order Act, 1952 etc. in excessive manner has given rise to
human right violation issues. Lack of adequate economic development
and anger against the non-local settlers have been responded to some
extent by the central and state administration by offer of economic
reform packages, local autonomy and other long term solutions.
10.7 Self-government and tribal development

Protection of tribal! identity, promotion of their welfare and a change
towards a socially just order will be possible only with effective
mechanism for self-governance. Article 244 read with Fifth and Sixth
Schedules provide for special provisions about self-governance of
the tribal population. Formation of Autonomous State within the
State of Assam consisting tribal areas with a special body to act as
Legislature and Council of Ministers is also contemplated (Article 244-
A). According to Article 275(1), there shall be paid out of Consolidated
* S.B. Nandi, R.P. Athraparia and S.K. Mukherjee, “Tribal Customary Law in
North-East India” in K.S. Singh, supra, n. 76 at p. 25.
% S.K. Pal, “The Rabha Customary Law in Transition: From matrilinity to Patrilinity”
K.S. Singh, supra, n. 76 at p. 49.
Self-government and tribal development 445
a
Fund of India, grants-in-aid to the states to meet the expenses (capital
and recurring) of developmental schemes undertaken by the state with
the approval of Government of India for the purpose of promoting the
welfare of STs in that state and raising the levels of administration of
Scheduled Areas in that state.
Orientation of the tribals for their self-determination is reflected
as unique feature of tribal history itself. Their love for autonomy and
thrust for retention of distinct grass root democratic institutions have
been responsible for safeguarding their institutions as live bodies
to resolve various internal problems and to face external challenges.
Internally organised existence is the principal source of their commu-
nitarian strength. For the occurrence of social transformation in sucha
framework, these are more facilitative than impeding factors. People’s
collective participation, emotional and rational commitment to chosen
values of welfare and effective implementation of collective decisions
are the positive factors. Extension of PRI system to this area has invig-
orated these factors, especially bringing women to the sphere of gov-
ernance. Attitude to superimpose oligarchic policies, tradition-born
prejudices, and lack of education and economic development are the
factors that obstruct desirable social changes on lines of social justice.
That self-rule through community’s own local council is one of
the distinct features of tribes from historical times has been already
discussed. In the North-Eastern India, laws recognised these tradi-
tional councils as legally competent bodies for local administration.
Accordingly, the Kebang of Assam, heads of village councils such as
Syiem (Khasi), Doiois (Jaintiyas), Nokma (Garo), Khullapka (Manipur),
and village councils of Mizoram, Nagaland and Tripura got legal rec-
ognition with slight modifications. Sixth Schedule and other provi-
sions of the Constitution govern their functioning.» There are nine
Autonomous Districts coming under their purview in states of Assam,
Meghalaya, Tripura and Mizoram. Each Autonomous district has
District Council for its administration: DC consists of 36 elected mem-
bers and four nominated by Governor (Paragraph 4). There are also
Regional Councils. They enjoy fixed tenure subject to dissolution by
Governor on the basis of specially constituted Commission’s report
and after hearing the respective Council (Paragraph 16). Governor
the
may provide for non-application of central and state laws in
application
autonomous districts and regions or provide for their
Further, state
with modifications (Paragraphs 12, 12-A and 12-AAA).
ment: An Analysis” in
% L.S. Gassah, “The Sixth Schedule and the 73rd Amend ations, New
MN. Karna and L.S. Gassah, Power to People in Meghalaya (Regency Public
berating
Delhi 1998) at pp. 3, 11.
ria (Ed.), Justice B.L. Hansaria s Sixth
%® For siti discussion, see, Vijay Hansa
Law Publishing House, New Delhi 2005).
Schedule to the Constitution (Universal
446 Transformation
Ethnic Pluralism, Tribal Development and Social ee
ea
OU
laws prohibiting consumption of any non-distilled alcoholic liquor
shall not apply to these areas. Governor's role in the administration
of tribal area is pivotal as he has the powers of territorial reorganisa-
tion of DC and AR (Autonomous Region), framing of rules, annulling
of DC resolutions and dissolving the DC Hidayatullah, J. views that
the Governor is not bound to consult the Council of Ministers or to
accept their advice in performing these functions whereas Hansaria,
J. hglds a contrary view.” Looking to the purpose of protection of the
interests of ethnic minority vis-a-vis majority dominated Council of
Ministers, the former view appears to be sound. The DCs and RCs
have powers to appoint heads of village council courts for adminis-
tration of justice; to establish primary schools, dispensaries and other
civic conveniences; to assess and collect tax; to regulate money lend-
ing and trading by non-tribals; and power to issue licences for extrac-
tion of minerals (Paragraph 6). They have general power to make laws
in respect of (1) the allotment, occupation or use, or the setting apart
of land (other than reserved forest) for the purpose of agriculture or
grasing or for residential or other non-agricultural purposes or for any
other purpose likely to promote the inhabitants of any ‘village or town,
subject to state’s power of eminent domain; (2) the management of
non-reserved forest; (3) the use of canal or water course for irrigation;
(4) the regulation of jhum cultivation; (5) the establishment of village
or town committees; (6) the management of public health and sani-
tation; (7) appointment ov succession of headmen and inheritance of
property; (8) marriage and divorce; and (9) social customs (Paragraph
3). Additional powers have been conferred upon North Cachar Hills
and Karbi Anglong Autonomous Districts and Bodoland Territorial
Council (Paragraphs 3-A and 3-B) relating to economic and environ-
mental aspects.
Location of the Fifth Schedule areas can be found in Bihar, Madhya .
Pradesh, Chhattisgarh, Jharkhand, Orissa, West Bengal, Maharashtra,
Gujarat, Rajasthan and Andhra Pradesh. The administration of areas
contemplated under the Fifth Schedule relies on exercise of Governor’s
power after previous consultation with Tribes Advisory Council
(Paragraph 4). Regarding non-application or modified application of
any central or state law, Governor is given independent power. Without
Governor's screening, no writ of Parliament or state legislature auto-
matically runs in the tribal area. For peace and good government of
scheduled area, he may make regulations to prohibit or restrict the
transfer of land by or among STs; to regulate allotment of land to STs;
and to regulate money-lending business. Union Government guides
and supervises the Governor's administration of the Fifth Schedule
*° Ibid, at pp. 124-27.

Self-government and tribal development 447
area by scrutinising periodical reports by the Governor (Paragraph 5).
Tribes Advisory Council, which has the duty of advising the Governo
r
in matters pertaining to welfare and advancement of the STs, consists
of 20 members out of whom 15 shall be representatives of STs in the
legislative assembly of that state. TAC has vital role in policy-making,
planning and supervision of developmental scheme and effective
administration. The efforts made by TAC for development of tribal
people is reflected in extension of reservation schemes, universalisa-
tion of primary education, separate rehabilitation of oustees of irri-
gation projects, total prohibition of liquor, and regulation of money
lending and mining business.” The limitations of TAC are that it is
basically advisory body, and that bureaucratisation has belittled ‘its
role. In spite of this, the Fifth Schedule’s advantage is that it allows the
Governor's office to work as filtering point for screening the central
laws before their application upon tribals, to supervise the protective
measures for their safeguard and to support the developmental activi-
ties as a nodal agency of the central government.
In respect of Nagaland, Assam and Manipur, there are special con-
stitutional provisions protecting the special interests of tribal people.
As per Article 371-A in state of Nagaland, unless allowed by a special
resolution of Nagaland Legislative Assembly, the Acts of Parliament
shall not affect religious or social practices of Nagas, the Naga cus-
tomary law and procedure, administration of civil and criminal jus-
tice involving the decisions of Naga customary law and ownership
and transfer of land and its resources. Regarding Assam and Manipur,
respectively under Articles 371-B and 371-C, President may by order
provide for functioning of a committee of Legislative Assembly con-
sisting of members belonging to Scheduled Tribes.
Extension of Panchayati Raj to the Fifth and Sixth Schedule areas
has further strengthened and streamlined democratic governance at
the local level. Article 243-M of the Constitution contemplates cen-
tral law providing for modified application of the Panchayati Raj sys-
tem to these areas. The Bhuria Committee, constituted by the Union
Government in 1994 for recommending the policy on the subject,
looked to the unique traditional characteristics of tribal societies, need
for protection of their customary laws, retention of their territorial
identity, and protection of their autonomy regarding local adminis-
tration, police, forest and revenue. According to the Committee, the
Gram Sabhas are to nominate executive council; traditional bodies are
to continue; the composition of tribal majority in the village council
to be ensured; and legislative and financial powers to be devolved.
Education, health and developmental activity were to be promoted by
” GS. Narwani, Tribal Law in India (2004) at pp. 94-97.

TACs and ADCs. Traditional tribal justice system is to be promoted;

wrong financial practices to be averted by decentralising sub-plan
financing; and village plans are to be systematically drafted.”
The Panchayat Extension to Scheduled Area Act, 1996 (PESA) aims
to centrestage the functioning of Gram Sabha by making it compe-
tent to preserve the traditions, customs and cultural identity of the
community; to plan for social and economic development; to restore
land to tribals; to control over moneylenders, forest produce, and natu-
ral resources; and to supervise mining and land acquisition proceed-
ing. For enforcing prohibition, regulating ownership of minor forest
produce, managing village market, and for dispute settlement as per
local customs and traditions also, the power is conferred upon Gram
Sabha. Thus, restoration of participative democracy at the grass root
level is the main concern of the PESA. Its implementation in various
states with minor modifications has invigorated Gram Sabha system.”
The fact that on important aspects of tribal development, security and
identity retention, gram sabha is given prominent role and responsi-
bility means that consensus-based bottom approach is relied upon in
social transformation programme.
On the whole, the local democratic structure is oriented to social
transformation. The Fifth and Sixth Schedules to the Constitution have
emerged as effective sanctuaries to the indigenous people by being
constitutions within the Constitution.’° As observed by the Supreme
Court in Samatha, “The purpose of the Fifth and Sixth Schedules to
the Constitution is to prevent exploitation of truthful, inarticulate and
innocent tribals and to empower them socially, educationally, econom-
ically and politically to bring them into the mainstream of national
life’"“" This has a great bearing on promotion of social justice for
tribals.
10.8 Social justice measures for tribal development

Social justice is the sine qua non of tribal welfare policy. As observed
by the Supreme Court in Samatha, “The founding fathers of the
Constitution were conscious of and cognisant to the problem of the
exploitation of the tribals. They were anxious to preserve the tribal
culture and their holdings. At the same time, they intended to provide
and create opportunities and facilities, by affirmative action, in the
light of the Directive Principles in Part IV, in particular, Articles 38, 39
* Ibid, at pp. 123-27

ifSee, generally M.N. Karna, L.S. Gassah, Power to People of Meghalaya (1998).
M. Hidayatullah, The Fifth and Sixth Schedules to the Constitution of India,
Anandoram Barua Memorial Lecture (1978) at p. 1.
""' Samatha v. State of A.P., (1997) 8 SCC 191.
Social justice measures for tribal development
449
and 46 and cognate provisions to prevent exploitation of the
tribals
by ensuring positively that the land is a valuable endo
wment and a
source of economic empowerment, social status and dignity of per-
sons. The Constitution intends that the land always should remain
with the tribals,"
Article 46 of the Constitution requires the State to promote with
special care the educational and economic interests of the weaker
sections of the people, and in particular of the Scheduled Castes and
the Scheduled Tribes, and to protect them from social injustice and
all forms of exploitation. Affirmative actions in the form of reserva-
tions are available under Articles 15(4) (5) and 16(4) to members of the
Scheduled Tribes in educational institutions and in public employment.
State’s power to impose reasonable restrictions [Article 19(5)] upon citi-
zens’ freedom of residence and movement in the interests of STs also
speaks about the special policy in favour of STs especially for protect-
ing their economic and cultural interests. Under Article 330 reserva-
tion of seats in the House of People for SCs and STs in proportion to
the percentage of their population is contemplated. Similar provision
is there in respect of State Legislative Assemblies also (Article 332).
There are a number of administrative plans and programmes for
the development of tribals. The Tribal Sub-Plan (TSP), initiated in 1974, ©
seeks to ensure flow of funds for tribal development under both the
state and central plans. In different sectors such as agriculture, ani-
mal husbandry, irrigation, forestry, education, health etc, the tribals
get the benefit of pooled funds. Special Central Assistance is extended
by the central government to support TSP with the purpose of boost-
ing income generation and poverty alleviation. First proviso to Article
275(1) provides for assured special financial assistance for promoting
the welfare of STs and for raising the level of the specially admin-
istered area. Schemes for Primitive Tribal group, Tribal Research
Institution, hostels, residential schools, vocational training and setting
up of National ST Finance and Development Corporation and Tribal
Cooperative Marketing Development Federation of India Ltd. have
extended institutional support for ensuring social justice to STs.
Wherever the matters relating to STs came up before judiciary, they
are treated with sensitivity and sympathy. In Samata'? the Supreme
Court observed, “Since the Executive is enjoined to protect social, eco-
nomic and educational interest of the tribals and when the State leases
out the lands in the Scheduled Areas to the non-tribals for exploitation
of mineral resources, it transmits the correlative constitutional duties
and obligation to those who undertake to exploit the natural resources
2 Tbid.
03" [bid.
Transformation
450 Ethnic Pluralism, Tribal Development and Social
n
ich rel el i
ent of the tri-
to improve social, economic and educational empowerm
ration of the
bals.” The Court directed that as a part of the administ
for:
project, the licensee or lessee should incur the expenditure
d
(a) reforestation and maintenance of ecology in the Schedule
Areas;
(b) maintenance of roads and communication facilities in the
Scheduled Areas where operation of the industry has the
impact;
() supply of potable water to the tribals;
(d) establishment of schools for imparting free education at pri-
mary and secondary level and providing vocational training
to the tribals to enable them to be qualified, competent and
confident in pursuit of employment,
(e:) providing employment to the tribals according to their quali-
fications in their establishment/factory;
(f) establishment of hospitals and camps for providing free
medical-aid and treatment to the tribals in the Scheduled
Areas;
(¢) maintenance of sanitation; and
(h) construction of houses for tribals in the Scheduled Areas as
enclosures; The expenditure for the above projects should be
part of his/its Annual Budget of the industrial establishment
or business avoc*ion/venture.
Thus, even in private agency’s actions affecting the tribal people's
interests the policy of social justice has an entry in order to sensitise
the legal environment. Application of reservation policy in jobs, edu-
cational institutions and representative bodies and of laws against
atrocities on SC/STs has also its own impact of safeguarding the ST
interest.
10.9 Conclusions
For bringing social transformation in the life of tribal communities, the

means employed in India is unique. The integrated means of security,
self-government and social justice reflect sustainable efforts of involv-
ing the community in the task, filling confidence against cultural
effacement and economic exploitation, and facilitating their all-round
development. Significantly, the orientation towards security surpasses
the other components. While this has justification in view of economic
exploitation and threat to their socio-cultural existence, the tendency
to immunise their family law from social justice oriented legal reforms
does not augur well. Expansion of human rights jurisprudence in this
sphere needs to be supported by its effective application. Grafting of
Conclusions 451
new Pancahayati Raj law into the traditional one has not caused dif-
ficulty because of their common features and availability of measures
for adjustments. Multiculturalism has*moulded the social transforma-
tion strategy by setting its direction and pace. The process of balanc-
ing between continuity and change continues to make substantive
contribution in this sphere as well.
- ceemiets
Part Il
SOCIAL TRANSFORMATION BY
EMPOWERMENT
EMPOWERING THE BACKWARD CLASSES, WOMEN
AND CHILDREN
eats ava
cl he
aeelten rece ed
ae png aE
CHAPTER 11
ei
e Gack ekbetc cg
e,
CASTE, LAW AND EMPOWERMENT OF

THE BACKWARD CLASSES
11.1 Introduction
Law’s competence, efficacy and difficulty to interact with society for
ensuring and expanding freedom, welfare and justice to people can be
properly understood by looking to the social milieu and community’s
structure upon which it operates. The internal structure of a hierar-
chic society or operation of patriarchy can hardly be ignored When
the social division is responsible for emergence and prevalence of spe-
cial privileges and unusual disabilities of specific groups af thesocial
lane. One of th1e foremost social realities that shape inter-group and
inter-personal social relations in India iscaste system. The unequal
opportunities and conditions of dignity offered by the social categori-
sation through caste system in educational and economic fronts can-
not be silently tolerated by a welfare state. Untouchability, which is
the culmination of caste prejudice of pollution/purity, is oneof the
grossest Violations of human rights to which legal system has been
quite sensitive. While filling the values of cosmopolitan culture into
a tradition bound hierarchic society faces all the challenges of mod-
ernisation, levelling up the lowly and the weak by ameliorative policy
of legal system adhering”
in the context
attains abundant significance
to social justice-and social revolution. The social responses to issues
relating to composition, inter-group mobility and inter-group tension
have resulted in conflicts, sensitive struggles and evolution of compro-
mise policies. Overall direction towards social integration of different
communities andbuilding up of harmonious society is visible in these
been ee cA NAT
Classes
Caste, Law and Empowerment of the Backward eee
454 e e
e
Re ee
ibution
policies. The present chapter focuses on law’s policy and contr
unity.
towards social transformation in the matter of caste and comm
11.2 Empowerment as a method of social transformation

Overcoming the impeding handicap through empowerment is a spe-
cial means chosen for social transformation in welfare democracy.
of a social segment, which is not
Amelioration and elevation able to
compete with an advanced segment because of present disabilities —
. oe hora
RS GEES ea
emanating from past discriminations, can be done by providing posi-

vic
tive advantages and assistancestothe powerless. That the timsof
exploitation, whether arising from caste prejudice, gender discrimi-
or child abuse, are Seriously marginalised becaus
nation e of
of lack
ae
out new opportunities hitherto denied. Empowerment is_a purpose-

oriented action of reinforcing the ability of the disadvantaged group
to gain self-generating power to be equal partners in the process of
development,’ to remove vulnerability of the exploited and to prevent
theperpetration of exploitation, violence
and injustice. Accordingto
Andre Beteille, “The idea of empowerment may be invoked in virtu-
ally any context: in speakiny about human rights, economic security,
capacity building, skill formation or the conditions of dignified social
existence.”? By strengthening
the margin bedand thewnorgarises
and by building
up social and economic capabilities among individuals
and. communities;and by moving the society from hierarchy to equal-
ity, it radically redistributes power and contributes to social transfor-
mation. As visualised by Rabindranath Tagore, this requires infusing
the language of soul and language of humanity into the mouths and
hearts of the weak.‘ This involves a positive policy of adding strength
' LPJ. Fitzgerald, Salmond’s Jurisprudence (12th Edn., N.M. Tripathi, Bombay 1966) at
p- 230; also see, Andre Beteille, infra, n. 3, at pp. 271-5.
> Yogendra Singh, Culture Change in India (Rawat Publications, New Delhi 2000) at
p. 124.
3 Andre Beteille, Antinomies of Society (Oxford University Press, New Delhi 2000)
at p. 268.
* Into the mouth of these
Dumb, Pale and meek
We have to infuse the language of soul
Into the hearts of these
Weary and worn, dry and forlorn
We have to minstrel the language of humanity—Rabindranath Tagore, Kadi and
Komal cited by P.N. Bhagwati in Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC
Empowerment as a method of social transformation 455
a Ae
where it is lacking; removing obstacles in the path of progress; and it
essentially reflects the idea of social justice. Since knowledge, skill, job,
property and political positi have dimensi
on ons of power, providing
coe eon the basis of equality of opportunity reflects the pol-
icy of empowerment. Thus, the questions, what is actually added, to
whom, how much and how long become relevant in this sphere when
social justice is connected to the factor of need and desert. Justice K.
Ramaswamy observed in Air India Statutory Corpn. case>:
“In a developing society like ours, steeped with unbridgeable and
ever widening gaps of inequality in status and of opportunity, law is
to the poor etc. to reach the ladder of social justice:
a catalyst, rubicon
What is due canno
be ascertained
t by an absolute standard which keeps
changing, depending upon the time, place and circumstances. The con-
stitutional concern of social justice as an elastic continuous process is
to accord justice to all sections of the society by providing facilities and
opportto remove handicaps
untitt es and disabilitieswithwhich the poor,
the
workmen,
etc. are langu
and to secure dignity of
ishin g their person.
The Constitution, therefore, mandate the State to accord justice to all
members of the society in all facets of human activity. The concept of
social justice embeds equality to favour and enliven the practical con-
tent of life.”
It was observed by the Supreme Court in M. Nagaraj, “Under the Indian
Constitution, while basic liberties are guaranteed and individual ini-
tiative is encouraged, the State has got the role of ensuring that no
class prospers at the cost of other class and no person suffers because
of drawbacks which is not his but social.”
Since the concept of equal citizenship and equal liberties ofall is
a foundational valueof the-Constitution, distribution of benefit and
burden on the basis of community, caste_and gender becomes_odd,
and needs to bejustifie d by a balanced applic ationof“formal equal-g
ional equality”
ity” and “proport . Identific ation ofthe most deservin
s use of the most appropriaté means of empowerment
and
Béneficiarie
épping stonés towards real amelioration. Caste has been used
bytheGovernménts as one of the criteria for identifying the backwatd
classes. Lack-of proper measure for excludin g layer and
the creamy
disinclination for internal reservation have been problematic factors in
identifying the most deserving ones. While giving of fee concessions,
scholarships, additional training facilities, loans and
ar Other advantages
ee
creation of
: pes
is employed as means of empowerment, the major policy is

tty Heeieepeneennaresremytesgity il ea siden
. sien (il —
quotas in jobs and educational institutions..K-G. Bala rishnan, CJI has

observed in Ashoka Kumar Thakur:
161: AIR 1984 SC 802. .

Union, (1997) 9 SCC 377.
5 Air India Statutory Corpn. v. United Labour
212.
<M. Nagaraj v. Union of India, (2006) 8 SCC
Empowerment of the Backw
Law andee
Caste,e e Classes
arde
456
Po ee
and
“Reservation is one of the many tools that are used to.preserve
promote the essence of equality,so that disadvantaged groups can be
brou gh
to the tont of civil life. It is also the duty of the State to
forefr
promote positive measures to remove barriers of inequality and enable
diverse communities to enjoy the freedoms and share the benefits guar-
re
anteed by the Constitution. In the context of education, any measu
that promotes the sharing of knowledge, information and ideas, and
encourages and improves learning, among India’s vastly diverse classes
deserves encouragement. To cope with the modern world and.its.com-
plexities and turbulent problems, education is a must and it cannot
remain cloistered for the benefit of a privileged few.’7
Whether proliferation and continuation of these approaches would
bring realenhancement of overall social “competence is a debatable
oint.S
BP02 a
11.3 Casteasa divisive factor _
Caste provides primordial criterion of forming and perpetuating social

groups, and renders rigid social division. A caste is a horizontal seg-
mental division of society spread over a district or a region or the whole ;
Stateandalso'sometimes outside it? It emerges from subjective factors
on the basis of religion or social
like birth or affiliation, and is justified
_ practice” Unity Within the endogamous group and coexistence of other
groups outside it are the features of caste system. Basically constitut-
ing a hierarchic system
of ielations amidst various strata ofsociety, it
has great bearing on opportunities for marriage alliance, inter-dining
and other social intercourses. Mindset of caste affinity and prejudice
(casteism) has deepened the differences. Religious competence and
disabilities attributed to various social layers, without much rational
justification, have influenced its iniquitous growth. Sociologists find
caste divisions amidst Muslims, Christians, Sikhs and other religious
minorities but not amidst tribal people."? Caste system is not peculiar Ok.
” Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, para 6.

* See, for discussion, Andre Beteille, Antinomies of Society (Oxford University Press,
New Delhi 2000) at pp. 281-86; Beteille views that quotas can at best touch only the
upper fringes of the redistribution of power in our complex society and that the belief
about their ability to bring radical or even perceptible redistribution of power is
merely a wishful thinking.
° LP. Desai, Should ‘caste’ be the Basis for Recognising Backwardness (1985); D.A. Desai
adopts this definition in K.C. Vasanth Kumar v. State of Karnataka, 1985 Supp (1) SCC
714; According to E.S. Venkataramiah, J., “A caste is an association of families which
practices the custom of endogamy i.e. which permits marriages amongst the members
belonging to such families only... A caste is based on various factors, sometimes it
may be a class, a race or racial unit. A caste has nothing to do with wealth...” at p. 786,
para 110 Vasanth Kumar case).
" Christopher J. Fuller, “Caste” in Veena Das (Ed.), Sociology and Social Anthropology
Caste as a divisive factor
nai ee 457
toIndia but traceablein neighbouring countries of India. The system
1s segmentary since each caste is normally divided into various sub-
castes or upjatis. Like sex or age, caste has become. person’s individual
and social identity in a very real sense becin
ausany localit
e y every-
body knows the caste of everybody else. ae Bis
In C.M. Arumugam™ the Supreme Court held, “A caste is more a
social combination than a religious group. But since, aspointed out by
Raja CJ.main G. Michael
nn v.S>
ar Venkatesw
,aran, ethics provides the
standard for social life and it is founded ultimately on religious beliefs
and doctrines, religion is inevitably mixed up with social conduct
and that is why caste has become an integral feature of Hindu soci-
ety. But from that it does not necessarily follow as an invariable rule
that whenever a person renounces Hinduism and embraces another
religious faith, he automatically ceases to be a member of the caste in
which he was born and to which he belonged prior to his conversion.”
Cultural factors like language, caste traditions and customary practices
about family life vary from caste to caste to some extent. Differences in
food habit, dress and lifestyle have been wedged by the caste factor.’
Aptitude for traditional occupation is also influenced by caste consid-
erations. Because of unequal economic and educational opportunities
available for different castes in the past, severe handicaps for certain
castes have also been experienced. Frequently, the forum of caste has
been springboard for political venture as caste considerations weigh
heavily in political and electoral process. A brief journey to the his-
torical evolution and development of the caste system, its inequities
and efforts for its reform will provide useful insights to know the law-
society interaction in this realm.
\, Duri ngVedic period, Aryans were divided into three
the early
sacial..classes viz. warriors, priests and the commons. The idea of
yao hereditary profession, limitation of “Marital alliance and taboos on
inter-dining were not_ prevalent. Contact_with indigenous people
called Dasas and absorption of them into the social fold raised the
the Aryan identity intact by distinguishing on the
fears ofkeeping
r Social divisionon
or varna.
of colou
basis the basis of profession
and race was laid down in Purushsukta, the Rig Vedic hymn, giving
rise to four castes: kshatriyas (warriors), brahmanas (priests), vaishyas
(prosperous landl traders)
and.ords and_shudras (cultivators)."? Priests
asserted their position as highest caste giving a mythical justification
ot ET OI
ct
P.oe eo
(Oxford University Press, New Delhi 2003) is!
1 C.M. Arumugam v. S. Rajgopal, (1976) 1 aye
Book Trust, New Delhi 1992, 1996)
12-$.C. Dubey, becom Society (2nd Edn., National
at p . 56-58. ;
in Books, New Delhi 1966, 1981)
i See, Romila Thapar, History of India, Vol. I (Pengu
at pp. 37-41. Rete ae
458 Caste, Law and Empowerment of the Backward Classes
BO ie i
from differ-
-n Purushsukta. The idea that different castes were born
of organic
ent parts of the same social body suggested about existence
ious stamp
links amidst them and about their equal importance. Relig
formu-
was given by tracing castes to God’s acknowledgement that he
lated them on the basis of their character and action."* While this had
allowed upward or downward movement in the ladder of caste sys-
tem through their benevolent action, subsequently thecaste on
was rigidified by making it hereditary and by limiting commensality”
‘and marriage alliance to caste members.’ The fear about corruption
(sankara) of varnas, and damage to domestic honour and sexual propri-
ety persuaded for rigidity of caste distinction. Continuance of caste
system was facilitated by accommodating numerous sub-castes (jatz)
in each caste (varna).6 Individuals could get remedies only through
caste panchayats. By the Smriti period caste taboos became rigid and
legal obligations or punishments differed with cast Thees .
twice-born
or casteshad
doijas, a status available forupper , exclusive rights about
access to learning. Considerations of purity and p luti goton
further
ascendance resulting in treating the outcastes as untouchable. Fa Hien
refers to the practice of dvijas to purify themselves even at the sight of
the untouchables.” The orthodox concept of purity and pollution had
a sway in temple worship practices, and excluded the unclean from
religious precincts, rendering them religious have-nots.
Opposed to the orthod*x practice is the intellectual and rational
expositionof spiritual equality reflected in social movements, »reli-
gious literature and attempts of social reforms, which ranged from the
times of Buddha to modern days. Buddha rejected caste system, and
preached Eight-Fold Path of leading moral life without causing pain to
others. He instructed his disciples, “Go into all lands and preach this
gospel. Tell them that the poor and the lowly, the rich and the high,
are all one, and that all castes unite in this religion as do the rivers in
the sea.”"* Jainism was also a non-caste sect.” During the post-Gupta
period, Shankaracharya relied upon Upanishad and Vedas to put for-
ward the concept of unity of soul with brahman, the need to go beyond
“Chaturvarnyam maya srishtam guna karma vibhagashah...” The four orders

of castes were created by Me classifying them according to their qualities and actions
and apportioning corresponding duties to them. Bhagavadgita, IV-13.
'S Romila Thapar, supra, n. 13 at p. 40.
'° B. Kuppuswamy, Social Change in India (5th Edn., Konark Publishers, Delhi 1993)
at p. 185.
Y Romila Thapar, supra, n. 13 at p. 153; R.C. Mujumdar, H.C. Rayachaudhry and
Kalikinkar Dutta, An Advanced History of India (4th Edn., Macmillan, Madras 1978) at
p. 189.
" V.D. Mahajan, Ancient India (Sth Edn., S. Chand, New Delhi 1970) at p. 160.
Romila Thapar, supra, n. 13 at p. 68.
CE LAA STN ata459
illusion (maya) and perceive the reality through control of senses.
The story about him that he found Parameshwara in a Pariah at Kashi
befits his theory of Advaitha. Any way, true Hinduism’s incompat-
ibility with untouchability was an insight in his philosophy. Similar
approach can be found in the 12th century social reform movement of
veerashaivism in Karnataka. Encouragement to inter-caste marriages,
preaching of social equality and humanism and rejection of untouch-
ability are some of the antidotes administered to the ritualistic world
for upholding social health. Basaveshwara looked to the uniform char-
acteristics and propensities of human beings and asked:
“What is the criterion to judge a caste?
The embryo heeds the seven elements;
It is the same birth out of the same womb!
Same the alliance of self and soul;
What then, caste avail?’?"
He regarded that divinity would not discard physical dirt but only
shun the mental uncleanness and that a hypocrite’s eschewal of
human touch would hardly fetch divinity. The Bhakti saints of medi-
eval period, especially Kabir and Nanak, preached
to devotees social —
SqUanTy-and castelessness, quite convincingly. Decrying that caste
spate hasbrokenhuman brotherhood before God, Vemana the great
Telugu poet had sung:
“Food or caste or place of birth cannot alter human worth
Why let caste be supreme? ‘Tis but folly’s passing stream
Empty is a caste dispute; all the castes have one root.
Who on earth can ever decide whom to praise and whom to deride?
Why should we the Pariah scorn, when his flesh and blood were
both
Like to ours? What caste is He who doth dwell in all we see?’””?
During the intellectual renaissance of the 19th century the trend set-
ting thoughtsof Raja Ram Mohan Roy, Dayanand Saraswati, Gopal
abandoning
Ranade appealed forfrom
Hari, Jyotiba Phule and M.G.to liberate class
distinctions.* Phule tried the masses the sacerdotal
authority and make them conscious of their rights through education
and enjoy individual dignity, and said, “As human beings are all crea-
0 Tbid, at p. 185. .
21 Siddayya Puranik, Human Values in Vachana Literature (Bharatiya Vidya Bhavan,
Gandhi Centre, Bangalore 1997) at pp. 55-56.
2 Romila Thapar, supra, n. 13 at p. 311.
al ‘Hae
2 VD. Mahajan, supra, n. 18 at pp. 140-41.
ations Divisio n, New
% Tara Chand, History of the Freedom Movement in India (Public divisions
Roy said in 1824, “The caste
Delhi 1967, 1974) at pp. 255, 271-75; Ram Mohan
enjoyment.” MY. Krishna Rao, The
are as destructive of national union as of social
Venkatramiah & Sons, Mysore
Growth of Indian Liberalism in the Nineteenth Century (H.
1950) at pp. 211-13.
460 Caste, Law and Empowerment ofthe Backward Classes
NS
itself supe-
tures of the same Divine Being, why should one caste deem
y divine
rior to others?”5 Ranade viewed that since man is essentiall
ty,
and all men are equal, it is natural to conclude that human socie
which is the consequence of the God-implanted social instinct in man,
is equally divine. The National Social Conference founded by him—
in 1887 campaigned against the evilsofcaste system and gave ca :
for uplift of the untouchables.” It was a platform for creating public
awareness on abolition of caste for few decades. Sankaran Nair popu-
larised the caste eradication movement by speeches and writings in
Indian Social Reformer. Caste was considered as self-inflicted disability
of Indian society.” Swami Vivekananda ha , “We refuse entirely
to identify ourselves with ‘do not touch me’. That is not Hinduism. It is
kicking out.
Anti-untouchability approach attained considerable attention in
the course of nationalist movement for freedom. Gandhiji suggested
in 1920s religious solutions to the evils of caste and untouchability.
Temple entry movement wasstarted in.certain-parts-of-Maharashtra
and Kerala. Gandhiji had soft policy of weaning away the caste Hindus
from the practice of untouchability and also placating the depressed
classes to adopt clean wav of life with boldness. Regarding varna sys-
tem Gandhiji.had a belief that it provided for division of labour and
not ‘social inequality. He opined, “All varnas are equal, for the commu-
nity depends no less on one than another.” He regarded superiority
of one varna over another as denial of law; caste system as harmful to
both spiritual and national life; and untouchability, an unwarranted
belief and inhuman sin.” Se ee eat
“In late 1920s, Dr. B.R. Ambedkar
emerged _as the champion.
of the
causeof Depressed Classes by his speeches and writings on the
wrongs inflicted upon them. He stood for annihilation of caste and
bitter denunciation of Shastrik prescriptions of caste discrimination.
Going to the religious roots of caste system, he found solution for the
problem in discarding religious practice itself. He disagreed with the
division of labour theory of caste as it provided for watertight com-
partments. He said, “As an economic organisation caste is, therefore, a
Winterset ST HER
» Ibid, at pp. 274-75.

*° Susan Bayly, Caste, Society and Politics in India (Cambridge University Press,
Cambridge 1999) at p. 178.
”” Ibid, at p. 182.
8 Swami Vivekananda, Caste, Culture and Socialism (Advaitha Ashrama, Calcutta
1950, 1988) at p. 78.
? M.K. Gandhi, Harijan, 11-7-1936 and 18-7-1936.
Caste as a
plies anita divisi ve factor
ac annemaene aliens toes ratio de ea teh 461
h armful
ins ulinsttitinasmuchuti
nasmuch onas
as it invol es the subordination of man’s
it involv
natural powers and inclinations to the exigencies of social rules.”°
He
heldthatcaste hadKilled Suenoepmir-aestioved sen
ofse
public char-
ity and impeded public opinion; and that it failed to sympathise with
the deserving and ignored the interests of meritorious. Since nothing
could beeternal, and change is the law of life, society hadresp
the on-
sibility
of revising its standards and of bringing revolution regarding
old values, he reasoned>" Jawaharlal Nehru believed in equalityas the
dominant value of the new age before which caste system could not
stand as archaic superstructure. Since caste does not stand by itself, but
is an integral part of the larger scheme of social organisation, changes
should be brought in larger sphere through social and economic forces
to build up a cohesive and stable social organisation?
From the above historical survey, it can be inferred that while at
the social level harsh practices of caste prejudices and untouchabil-
ity caused social degradation, the intellectuals,rational thinkers and
reformists supplied motivating force for eradication of the evils expe-
rienced of caste System. Itis significant that the innate voice ofreform
comin g the society repeatedly at various stages of his-
from within
torical development kept alive the aspiration for justice. The attitude
of social self-correction reflected mature shift from status to freedom.
It is this mindset of the Indian society that prepared itself for epoch-
making decision about eradication of untouchability.
Préminent sociological views-about caste system do provide valu-
able insight about caste’s operation asdivisive factor and appropri-_
ate policy needed to deal with it. In fact, caste is a favourite topic of
controversy and of interesting analysis for the sociologists. Caste asa
structural unit of social stratification was found by the western sociol-
such as:institutionalised inequality,
ogists to posses the characteristics
internal mobility, an elementary
respect of.
closure of social system in
reciprocity,
level SF-division oflabour legitimised on ritual bases of
emphasis_on..quality (ritual purity or racial purity)_rather than
and
péfformance. Louis Dumont views that caste system is based on the
fundamental.social principle of hierarchy (homo hierarchicus), a prod-
uct of collectivist approach within specific communities and thrived
through the dichotomy between the principles of purity and _pollu-
tion, which kept the former superior over the latter Caste endogamy
Sh een FE ERODED
samen
le
ina
=
reflected separation. Caste panchayat asserted dominance upon the
atte saeebcvee naan feLRA
and Religious
» BR. Ambedkar, Annihilation of Caste extracted in Amiya P. Sen, Social
Reform (Oxford University Press, New Delhi 2003) at p. 192.
31 Ibid, at pp. 196-99.
189 .
22 Jawaharlal Nehru, Discovery of India, at pp. 246-47.
and its Implications, in
3 Louis Dumont, Homo Hierarchicus, The Caste System
Contributions to Indian Sociology, Vol. VIII (1965) at pp. 90-99.
888
cism for
individual members. Dumont’s view is subject to wide criti
being excessively divisive, and for lacki ences about exclusive
influence of purity-pollution dichotomy* Ghurye considered varna
system as resulting in consolidation of the Brahmin class with privi-
declare-the-duties-of other-castes"and degradation of the shu-
dras2> MN. Srinivas, a noted sociologist, identified two sorts of mobil-
ity in alleen ese
ystem , whichET RTE
dilute d the rigours of
it
fhe divisive system. Sanskrand is
horizo at
ntal io
solida ritynare the
means of mobility. He says, “Sanskritisation is the process by which
a ‘low’ Hindu caste, or tribal or other group, changes its-customs,trit-
ual, ideology and way. of life in the direction of a high and frequently,
‘twice-born’ caste. Generally such changes are followed by a claim to a
higher position in the caste hierarchy than that traditionally conceded
to the claimant caste by the local community.”° Horizontal solidar-
ity involves a process where various sub-castes or jatis come together
to form_a large caste. Because of occupational diversity on non-caste
pattern due to modernisation, inter-structural mobility has provided
fluidity and class solidarity.
Scholars like A.R. Desai predict merger
of caste withclass because
ofthe forces of mode of production and
caste is a social manifestation
ownership of property based on agrarian feudal complex, and is likely
to shed its identity as a consequence of industrialisation and basic
change in the economic stucture*” According to Yogendra Singh, the
institutionalised inequality and its cultural and economic coordinates
are indeed the factors, which render caste in India a unique system of
social stratification2® Iravathi Karve looks to caste’s function towards
= . = ss = BiG REO SSS
other groups as one of negative aloofness and self-preservation; and

towards its Own members, opening up of a social universe, provid-
ing various facilities, services and protections. In the background of
violent caste rivalries and feuds, she regards inter-caste co ion
for common life assuperficial. She suggests, “The handicapped castes
must firstbebrought on par with advanced castes as regards educa-
tion and economic opportunities before one can talk of breaking the
caste system. Today the untouchable leaders of outstanding ability can
* Yogendra Singh, Social Stratification and Change in India (Manohar, New Delhi
2002) at pp. 109-11.
* G.S. Ghurye, Caste, Class and Occupation (Popular Book Depot, Bombay 1961); he
considers caste as cultural phenomenon resulting in status based stratification.
* MN. Srinivas, Social Change in Modern India Orient Longman, Hyderabad 1972,
rept. 2003) at p. 6.
” A.R. Desai, Rural Sociology in India (Popular Prakashan, Bombay 1969) at pp. 111-
12. Yogendra Singh views that caste is only a structural reality and that it would
disappear when society in India evolves in a higher level of industrialisation. See,
supra, n. 34 at p. 44.
* Yogendra Singh, supra, n. 34 at p. 32.
[SEAS Seino 8iets be bahia dca ah 463
rise high only by subjecting the advanced castes to political pressure
through their caste membership.”29
I.P. Desai and A.M. Shah consider that the realities of caste system
cannot be understood merely with reference to the principle of hierar-
chy. Shah considers the division traceable in caste as intrinsic in its his-
torical evolution, and continuing in its natural course‘ whereas Desai
finds caste division's persistence in the ritual of hierarchy, hereditary
occupation and the ideology of purity and pollution. Desai views that
increasing pace of social change radically alters the ongoing relation
between hierarchy and division and that the newly merging hierarchy
acts as a rival to the traditional one with potentiality of replacing it.
He points out that since increasing number of individuals are stepping
out of caste-bound occupations, the attributes of traditional division
do not continue with new set of collectivities, and hence, the idea of
identifying social backwardness on the basis of ritual criteria is objec-
tionable.** Shah admits changes occurring within the caste system,
but states about its continuation. While the criterion of untouchabil-
ity distinguishes other castes from Scheduled Castes, regarding Other
Backward Classes, no such reliable criterion is forthcoming. Today,
more than 25 per cent of people live in urban areas. All the members
belonging to a caste are not engaging in caste-based occupation. Caste-
based discrimination is not practiced in providing services in urban
society, he views.* Afidre Beteill@has shown that in metropolitan cities
and’ amidst inte genisia, tnboth factand perception, caste is becom-
ing increasingly irrelevant in many areof
aslife. While membership in
a particular caste may be helpful in finding a job, meritocratic quali-
fications are frequently more important and are normally regarded
as the only legitimate ones. Hence, caste unit has lost itsrigidity and
legitimacy,
public legitim: and the desirability of continuation of caste-based
reservation is a debatable one.* Politicisation of caste affinity and divi-
sion has complicated the problem by offering to include more castes
into the list of OBC (as many as 250 new castes were added after Indra
9 Iravati Karve, “The Indian Social Organisation: An Anthropological Study” in

The Cultural Heritage of India, Vol. Il (The Ramakrishna Mission, Calcutta 1937, 2001)
at p. 552. je
4 AM. Shah, “The Judicial and Sociological Views of the OBCs” in Ghanshyam
1997) at
Shah (Ed.), Social Transformation in India, Vol. I (Rawat Publications, New Delhi
Ghanshyam
p. 258; also see, D.L. Sheth, “The Future of Caste in India: A Dialogue” in
ae 5 .
Shah at p. 238.
sing backwar dness?” Economi c
41 LP. Desai, “Should caste be the basis for recogni
and Political Weekly (1984) 19(28) at pp. 1106-16.
;
42 AM. Shah, supra, n. 40 at p. 272.
(Oxford University
Andre Beteille, The Idea of Natural Inequality and Other Essays
Press, New Delhi 1983, 2003) at pp. 125-26.
and EmpowermON
Caste, LawAR ward Classes
ent of the Backa
464 ci SO
a aR oIle
through law by
Sawhney case) and expanding the reservation benefits
“vote bank politics”.
Gupta on
The phenomenological approach adopted by Dipankar
thinks itself
caste looks to the contemporary reality that since no caste
-esteem and
as inferior to others, and_on the other hand projects self
es
tritowin m of hierarchy does not
systeal
political gain, the tradition
cal
continue, especially in the context of changed economic and politi
scenario in villages. The village patrons and oligarchy have declined
in economic power and could hardly influence and control other
castes. Increase in the extent of non-agricultural income in villages,
non-profitability in agriculture, the reduced_ extent of land_ holding
and dependence upon agricultural Tabour whichis becoming scarce
and contly Because ofMibanl_opportunities, have totally altered the
power relations amidst castes. As a result, multiplicit of hierarchies
hasemerge dominance of Single hierarchy. While
ue no room for «
thishaseclipsed theCasté system, it has not eradicated
. . ee ees ae artes caste identi-
Peet:
on political struggle of castes

ties.4° Gupta’s emphasis
.
and great deal
of their assertion “from below” contests the idea of Sanskritisation. He
does not rule out divisive characteristic of caste politics.
Similar to the imitative tendencies to climb in the social ladder
through Sanskritisation, there has emerged a tendency to climb the eco-
nomic ladder by deviant methods of getting the reservation advantage.
In the background of unusual and dubitable methods of getting into the
family fold of Scheduled Castes or Scheduled Tribes by reconversion,”
“4 Chinnappa Reddy, J. has very graphically described it in Karnataka Third

Backward Class Commission, (1990), “And, we have political parties and politicians
who, if anything, are realistic, fully ‘aware of the deep roots of caste in Indian society
and who, far from ignoring it, feed the fires it were and give caste great importance in
the choice of their candidates for election and flaunt the caste of the candidates before
the electorate. They preach against caste in public and thrive on it in private.” Dr.
Arijit Pasayat and Thakker, JJ. after referring to politics of including a large number
of new castes and over-anxious political consideration to pass 93rd Constitutional
amendment and central legislation on the subject, have observed in Ashoka Kumar
Thakur v. Union of India, (2008) 6 SCC 1, “In reality, the object was to give a wrong
impression to the people that they were concerned about the backwardness of the
people and they were the ‘Messiahs’ of the poor and the downtrodden. In reality, in
their hearts the ultimate object was to grab more votes. The lack of seriousness of the
debate exhibits that the debate was nothing but a red-herring to divert attention from
‘he sinister, politically motivated design masked by the ‘tearful’ faces of the people
nasquerading as champions of the poor and downtrodden.”
* Dipankar Gupta, “Caste Today: The Relevance of a Phenomenological Approach”
india International Center Quarterly (Summer 2005) at pp. 138-53.
“6 Ibid, at p. 152.
” C.M. Arumugam v. S. Rajgopal, (1976) 1 SCC 863: AIR 1976 SC 939; Principal, Guntur
Medical College v. Y. Mohan Rao, (1976) 3 SCC 411: AIR 1976 SC 1904.
Non-discrimination on the ground of caste
(uf 465
9 SARS AS Baden ie Sl
adoption,* marriage,” and false certificates and sometimes by retain-
ing the status in spite of religious conversion—which may be called
“Reverse Sanskritisation” or “Scheduled Castisation”—caste’s function
of division and hierarchy need to be meticulously examined even in
the course of reforms.* In other words, caste as a badge of entitlement
to privilege also continues to be a divisive factor. Caste’s divisive ten-
dency continues even after religious conversion also.
Raveendran, J. in Ashoka Kumar Thakur observed, “Caste has divided
this country for ages. It has hampered
its growth. To have.casteless
society will be realisation
of noble dream. To start with, the effect of
reservation may appear to perpetuate caste...It is significant that the
Constitution does not specifically prescribe a casteless society nor tries
to abolish caste.But by barring discrimination in the name of caste
and by providing foraffirrnative action Constitution seeks to remove
to the
in the status on thebasisofcaste." According
the difference
Learned Judge making reservation a permanent policy, rather than a
temporary crutch, would create a fractured society with mutually sus-
picious groups and halted vehicle of progress.
A a daar rt
?
11.4 Non-discrimination on the ground of caste as a constitutional

policy
Eradication of untouchability, prohibition of discrimination amidst cit-
izens on grounds of caste, special measures of protective discrimina-
tion like reservation for Scheduled Castes, Scheduled Tribes, Socially
and Educationally Backward Classes and Other Backward Classes and
enabling of temple entry are major public policies developed by the
Indian society. These policies got incorporated into the Constitution
and influenced various legislative and administrative measures.
11.4.1 Background
In the beginning of the 20th century some of the states like Mysore
and Kolhapur initiated the policy of absorbing the depressed Se
Sampath,
48 Khazan Singh v. Union of India, AIR 1980 Del 60; for a critique see, B.N.
JILI 596 at p. 599.
“Pseudo Scheduled Castes: A Gift of Adoption Law” (1981) 23
SC 1840 where the
49 N.E. Horo v. Jahanara Jaipal Singh, (1972) 1 SCC 771: AIR 1972
she marrie d a scheduled tribe;
status of scheduled tribe was conceded for a lady when
India, AIR 1975 Del 115 refused to
but Delhi High Court in Urmila Ginda v. Union of
married a chamar fearing that
apply this principle to a high caste Hindu girl when she
i the policy of reservation.
(1981) 23 JILI
: De rie Pecado Scheduled Castes: A Gift of Adoption Law”
596 at p. 599.
SCC 1 at p. 717.
51 Ashoka Kumar Thakur v. Union of India, (2008) 6
i
466 a. tac Law and Empowerment of the Backward Classes
to administration by reservation.” Under the Government of India Act,

1919 formal recognition of the suppressed classes took place. While
position and locality of concentration. In a sense, colonialism “consoli-

dated” the “traditional” caste society.
Gandhiji suggested, in 1920s, religious solutions to the evils of caste
and untouchability>? Temple entry movement started in certain parts
of Maharashtra andKeralov Cananif RadSoHpolicy ofweaning away
the caste Hindus from thé practice untouchability
of and placating the
depressed classes to adopt clean way of life with boldness as a measure
of uplift3+ In late 1920s, Dr. B.R. Ambedkar emerged as the champion
of the cause of Depressed Classes by his speeches and writings on the
wrongs inflicted upon them> He stood for annihilation _of caste and
bitter denunciation of Shastrik ‘prescriptions of caste discrimination.
In 1931, he made crucial demand
for separate
parateele
electorate for DCs. This
was opposed by the Congress leadership as divisive. The Poona Pact
of 1932 resolved this conflict by providing-for proportion special
of
seats in the provincial legislatures cee
separate “untouchable” electorates>* Following the Poona Pact, the
policy
ameliorating
of the DCs by scheduling their castes on the basis
of Census data of 1931 began” Massive efforts were put Gandhiji
by
and Ambedkar separately by launching specific associations and by
creating public opinion towards equal rights in the matter of temple
entry, school admission and access to public facilities5*
With the dawn of independence, the process of making of the
Constitution was influenced by the above social and political devel-
* Susan Bayly, supra, n. 26 at p. 242. Princely State of Mysore had initiated the policy
of reservation for backward classes in 1895,—
° Ibid, at p. 249.
* Harijan Sevak Sangh was instrumental in implementing Ganghiji’s ideas,
however, amidst dissatisfaction about loss of identity. See, Susan Bayly, at pp. 250-51.
_ * Susan Bayly, supra, n. 26 at pp. 256-57.
_*° Ibid, at p. 262; Louis Fischer, The Life of Mahatma Gandhi (Bharatiya Vidyabhavan,
Bombay 1951, 1998) at pp. 392-09.
*” The Census Commissioner J.H. Hutton had formulated criteria such as: serving
of the caste by Brahmins, barbers etc. who serve the caste Hindus; occurrence of
pollution by contact or proximity; taking of water from them by upper caste people;
prohibition of use of roads, schools and other public conveniences; entry into
temples;
and having ordinary social intercourse.
* Louis Fischer, supra, n. 56 at pp. 407-09. also see, B. Kuppuswamy, Social Change
(Konark Publishers, Delhi 1996) at pp. 232-33.
467
opment. The idea of bringing social revolution through positive
state
intervention through abolition of untouchab
inallitsty
ili forms was”
unani mously prevailing the Constituent Assembly. The Constitution
makers had clear perception about the evils of caste system. The dis-
cussion made by Shibban Lal Saxena, Muniswamy Pillai, Dakshayini
Velayudhan, Monomohon Das and K.T. Shah brought out the heinous
facets of untouchability and also the determination to put an end to it®
Monomohon Das viewed that abolition of untouchability proposed to
save one-sixth of the population from perpetual subjugation, humili-
ation and disgrace. He said, “The custom of untouchability has not
only thrown millions of the Indian population into the dark abyss
of gloom and despair, shame and disgrace, but it has also eaten into
the very vitality of our nation.” However, there is no evidence in the
Constituent Assembly Debates regarding formation ofcasteless soci-
ety. But state action discriminating on the basis ofcaste onlyisprohib-
ited.The package.of reforms included special provisions, reservation
in public employment, allowing of temple entry reforms, support to
educational and economic empowerment, political reservation for lim-
ited duration (which was extended from time to time through consti-
ismonit
and othersupervand
tutional amendments) y arrange-
ororing
ments for implementation. Further, supporting central legislation
declaring detailed policies to prevent and remedy the untouchability
offences was also contemplated. Thus, eradication of untouchability is
a policy that has several dimensions and asks for holistic approach for
planning and effective implementation.
11.4.2 Specific constitutional provisions

Prohibition of untouchability and_rejection of caste-based discrimi-
nation are the major policies of the. jtution in this sphere. The
key provision regarding abolition of Untouchability can be found in
Article 17 of the Constitution, It makes an epoch making declaration,
I TI “ =
“Untouchability is abolished and its practice inany form is forbidden.

7 ee ee
needa. Aan TL ree
lish new ideal for society, equality.to.the.Dalits, at par with general

public, absence of disabilities, restrictionsorprohibitions on grounds
of caste or religion, availability of opportunities and a sense of being a
5 CAD, Vol. VII, Book 2, 29-11-1948, at pp. 659-68.

© Ibid, at p. 666.
Classes
Caste, Law and Empowerment of the Backwardne
468 as a A
a
17read with
participant in the main stream of national life." Article
Article 5G) protec's an individual from.discriminatory cond ot
qnly on the partofthe State but even on.the partof theprivate persons
any
incertain situations. The Supreme Court has stated that whenever
,
fundarnental right like Article 17 is violated by a private individual
it is the constitutional obligation of the State to take necessary steps
to interdict such violation and ensure observance of the Fundamental
Right by the private individual who is the victim of transgression. The
Stateisunder a constitutional obligation to see that there is no viola-
tion of thefundamentalrights of'Such person. as <i
ee, Article 15(2) provides that nocitizen shall, on grounds only of reli-
gion, race, caste, sex, place of birth or any of them, be subjected to any
\disability, liability, restriction or condition with regard to:
\ (a) access to shops, public restaurants, hotels and places.of public
: entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of
public resort maintained wholly or partly out of State funds
talk or dedicated to the use of the general public.
Article 23(1) prohibits begar and other similar forms of forced labour,
(bonded labour). Article 23also prohibits traffic in women (jogins and
devadasi system thrive on cruel monster of custom). Since untouchabil-
ity is traditionally associated with exploitative practices of slavery and
temple prostitution, this prohibition has great relevance. =
Article 25 guarantees freedom of religion and its exercise thereof is
made available to all. Sub-clause (2) thereof envisages that nothing in tim Decent
that article shall affect the operation of the existing law or prevent the
State from making any law to provide for social welfare
and reform
or to throw open Hindu religious institutions of a public character to
atf-classes
and sections
of Hindus. Further, religious freedom is con-
ferred subject to other provisions of Part III of the Constitution (which
intetrdes-ATtIcle 17)-Mence, the policy of abolition
of untouchability
prevails over religious freedom.
Article 29(2) prohibits denial of admission into an educational insti-
tution maintained by the State or receiving aid out of State funds on
grounds only of religion, race, caste language or any of them. Under
Article 15(4) State has power to make special provision for the advance-
ment of any socially and educationally backward classes of citizens or
for the Scheduled Castes and Scheduled Tribes. By 93rd Constitution
Amendment, the scope of special provision is exten ed to admi ion
2 ee poresaonnih ot = so it "i «Sabb
atone bans ron
*! State of Karnataka v. Appa Balu Ingle, 1995 Supp (4) SCC 469: 1994 SCC (Cri) 1762.
° M.P. Jain, Indian Constitutional Law (5th Edn., Wadhwa Publications, Nagpur,
2006) at p. 978; also see, P. Ishwara Bhat, “State Action and Inaction: A Social Justice
Perspective” (1995) 2 Kashmir University Law Review 1.
469
to private educational institutions whether aided or unaided by the
State [Article 15(5)]. Article 16(4) rovides for State’s power to make
reservation in the matterofpublicemployment_in fayour_of
i - any
also permitted [Article 16 (4-B)]. Thus, the policy of substantive equal-

ity through affirmative action and protective discrimination has been
contemplated to deal with the problem of social backwardness arising
from caste discriminations. As will be discussed later, this has wit-
nessed numerous constitutional litigations, political controversies and
social agitation on Various counts and at various stages. >
Article 46 guides the State towards promotion of educational and
economic interests of the SCs, SET TCLTESISDOE NETEES alle
State shall promote
promote with special care
care tthe educational and economic
interests of the weaker sections of the people, and in particular, ofthe
Scheduled Castes and the Scheduled Tribes, and shall protect them
from social injustice and all forms of exploitation.” /
~ Fundamental Duties imposed under Article 51-A have great bearing
towards tuning of individual behaviour vis-a-vis fellow beings in the
direction of eschewing untouchability. Since abolition of untouchabil-
ity was part of the scheme of freed e, the duty under 51-A(b)
to cherish and follow the noble ideals which inspired OUF Natiortal
struggle for freedom. gains significance in this context. Similarly,
the
has a valuable input for rejecting untouchability in individual conduct.

the duty to develop’scientific:temper-and human-
More importantly,
ts creat potentialitytocombat untouchability since the latter is
Ec EA and blind tradition. ;
Under Articles 330 and 332,provisions are made to reserve seats in
the House of People and State Legislative Assemblies respectively for
the SCs and STs in proportion to their population in respective states.
The reservation is to expire in 60 years’ from the commencement of the
Constitution. In panchayats and Nagarpalikas reservation of seats for
SCs and STs is eriiad thisush consnnneor amendment. National
and
Commissions for SCs and STs are constituted under Articles 338
470 Caste, Law and of the Backward Classes
EmpowermentSAA
i mi e, A S SS
ae
jaquire
338-A to investigate about all matters relati
mmend.for.their
into complaints about deprivation of rights, to.reco
better protection.” In order to enable more effective and focused
ission into
work for their amelioration, bifurcation of National Comm
11.4.3. Meaning of “untouchability”

There is no definition of the term “untouchability” either in the
Constitution or legislation _enacted for its eradication. Because of com-
plexities involved in the practice, the lawmakers have abstained from
Sa hd
giving a formal legal definition to the term. This has enabled some
flexibility to suit to the varieties of situations although compelled
some difficulty of identifying mental element in the crime. An attempt
was made in revising the Untouchability (Offences) Act in 1971-75 to
suggest that its essence consists in the subjection of any member of
the Scheduled Castes/Schec uled Tribes or others connected with them
to any discrimination, disability, suffering, liability or restriction or a
6 Arts. 338(4) and 338-A(4) prescribe the following duties of the respective
Commissions:
(a) to investigate and monitor all matters relating to the safeguards provided for
the Scheduled Castes (Scheduled Tribes) under this Constitution or under any
other law for the time being in force or under any order of the Government and
to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation of rights and
safeguards of the Scheduled Castes (Scheduled Tribes);
(c) to participate and advise on the planning process_of the socio-economic
development of the Scheduled Castes (Scheduled Tribes) and to evaluate the
progress of their development under the Union and any State;
(d) to report to the president, annually and at such other times as the Commission
may déerir fit,reportson-working of those safeguards; _
(e) to make in such reports oconnendations feto the measures that should
be taken by the Union or any State for the effective implementation of those
safeguards and other measures for the protection, welfare, and socio-economic
development of the Scheduled Castes (Scheduled Tribes);
(f) to discharge such other functions in relation to the protection, welfare and
development and advancement of the Scheduled Castes (Scheduled Tribes) as
the President may, subject to the provisions of any law made by Parliament, by
the rule satisfy.
* E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394: AIR 2005 SC 162.
471
condition on the ground of pollution and isolation, caste, race, religion,
or any of them of such person.or
of his parents or family
But,.the
majority of members in the Joint Committee declined to incorporate
the definition into the Act. Courts have relied on historical data and
legisla tive policy in identifying untouchability.
n ndia, the “untouchables” occupy the lowest rung in the social
ladder, Impregnable walls of separation with graded inequalities
erected between different sections among Hindus and “untouchabil-
ity” stand together and aggrandise the problem. Initially, the glorified
concept
and superstition of purity and pollution in the contéxt6f teli-
gion amidst the priestly class had resulted in exclusion of untoucha-
bles from good things of Tifé. Denied ofeven access to potable water
sources, education, culftiral life and economic pursuits, they were
made to live as beasts of burden at the outskirts of the villages, towns,
slums, etc. Manu Smriti prohibited them to wear decent clothes, wear
precious metallic ornaments or even to use decent utensils, food and
drink. They were to serve the society in menial jobs asslaveand
s serfs.
Caste system segregated them from the main stream of the national
life and prevented the Hindus from becoming an integrated society
with
fraternity , dignity and affinity.
human oo
Gandhiji who employed multi-pronged effort to mitigate the prob-
lem said, “untouchability means pollution by the touch of certain
persons by reason of their birth in a particular state of family. It is a
phenomenon peculiar to Hinduism and has got no warrant in reasons
or Shastras.” He condemned.the. practice as a sin against humanity.
According to Dr. Ambedkar, “The untouchability is the notion ofdefile- POSSE hora
ment, pollution, contamination and the ways and means of getting rid
of that defilement. It is a permanent hereditary stain which nothing
can cleanse”. He called it as “a diabolical contrivance to suppress and
enslave humanity”. P.B. Gajendragadkar, CJ. held that “untouchability
is founded stition, ignorance, complete misunderstanding of
OO
the true teachings of Hindu religion”.

K> Ramaswamy, J. observed in a landmark case of Appa Balu Ingale
that the untouchability has been grown as an integral facet ofsocio-
religious practices being-observed for over centuries; kept the Dalits
away from. the-mainstream of the society on diverse grounds, be it of
religious, customary, unfounded beliefs of pollution, etc.®Itis an atti-
tude and way of behaviour of the general public of the Indian social
® Upendra Baxi criticises the majority approach for failing to give a conceptual
ofthe
clarity needed for a judge in proceeding with the case in search of a component
Baxi, The
mental state of the accused at the time of purported offence. See, Upendra
Rights Act: Pitfalls in Implementation” in ee Baxi (Ed.), Law
Protection of Civil
ore 177
and Poverty: Critical Essays (N.M.Tripathi, Bombay 1988) at pp. 179,
SCC (Cri) 1762.
Vie opietnntaka v. Appa Balu Ingale, 1995 Supp (4) SCC 469: 1994
472 Caste, Law and Empowermen t of the Backward Classes
en
a a
ee :
order towards Dalits. Though it has grown as an integral part of caste
system, it became an institution by_itself and_it enforced disabilities,
restrictions, conditions and prohibitions on Dalits for access to and
the tise of places of public resort, public means, roads, temples, water
sources, tanks, bathing ghats, etc. entry into educational institutions
or pursuits of avocation or profession which were open to all but by
reason of birth, they suffered from social stigma. Untouchability and
birth as ascheduled caste are thus intertwined root causes of disability.
Untouchability, therefore, is founded upon prejudicial hatred towards
Dalits as an independent institution. It is an attitude to regard Dalits
as pollutants, inferiors and outcastes.
Dr. Ambedkar, with his characteristic clarity and piercing appeal to
Dalits, stated that in order to have a clear understanding of untouch-
ability and its practice in real life one should know the types of the
atrocities perpetrated against the depressed classes. The instances of
beating or harassing by caste Hindus for the simple reason that the
depressed classes claimed the right to enroll their children in govern-
ment schools; for claiming the right to draw water from a public well;
for exercising the right to take a marriage procession with the groom
on horseback; for putting on clothes of good quality, for using utensils
made of metal like copper, etc; for bringing land under cultivation; for
refusing to carry dead animals and eat carrion, or for walking through
the village with socks and-ehoes on, or for not bowing down before
the caste Hindus. In brief, untouchability is aunique and unfortunate
phenomenon of oppression by the upper strata of the sociefy upon the
lowest strata through imposition of rule of totally submissive behav-
iour. Because of religious reasons attributed to the practice of untouch-
ability, it is not a short or temporary feature but a long-standing one,
viewed Dr. Ambedkar.
11.4.4 Legislative measures on untouchability

Legal system has largely used conflict model of social change in deal-
ing with the problem of untouchabili
by providing
ty for special rules
of evidence, special courts and_state’s power to extern any person
inimical to the legal policy and to impose collective fine. While in the
province ofMadras a law had been enactéd in 1938 to prohibit impo-
sition of disability on accdtint of untouchability and caste, in other
parts of India at the dawn of independence various statutes on the
subject had been passed. In exercise of the power in second part of
Article 17 and Article 35(a)(ii), the Untouchability (Offences) Act, 1955,
was made, which was amended in 1976 to be renamedas “Protection
of Civil Rights Act” (PCRA) to plug various loopholes experienced in
the course of its application. In 1989, the
Scheduled Castes and the
473
Scheduled Tribes (Prevention of Atrocities) Act was passed to make
legal equipment more effective. The state laws continue by virtue of
Article 372, and those provisions, which are inconsistent with the Act
of 1955, are repealed. Parliament alone has legislative power in the
matter of “untouchabilin view of the need for uniform policy on
ity”
the subject throughout India. Abolition of untouchability in itself is
complete and itseffectisall pervading applicable to State actions as
well as acts or omission by individuals, institutions, juristic or body of
persons. Pw Tay,
11.4.4(a) Protection of Civil Rights Act

The PCRA intends to prescribe punishment for,the preaching and
practice of “untguchability” for the enforcement of any disabilite aris-
Sates eer connected therewith.” It is not confined
to-Hindus nor its protection limited to untouchables residing in the
locality mentioned under the Constitution (Schedule Castes) Order,
1950. It is applicable upon persons who take any part in the excom-
munication df, orimposition of any social disability on, any person
who réftises to practise untotichabilityordoes any act in furtherance
of the objects of this new law. In
addition to the normal penalty for an
offence, the Court may also cancel or suspend, any. licence in respect
of profession; trade, calling or employment when an offence is com-
mitted ander this law during the course of any such pro ssion, trade,
calling or employment. The Act does not define untouchability but
makes express provisions with respect to the more common forms of
untouchability, which are practiced in India. It has the following sali-
ent features:
First, it prescribes punishment for enforcing various types of dis-
abilities practiced against the untouchables. The purpose.is to._make
access to basic rights like right to live with human_dignity (which
inchrdes-right-to drinking water, health, education, means of living),
religious freedom, and freedom of business, trade, profession and occu-
pation;more meaningful and effective. The punishment prescribed is
imprisonment for a term of not less than one month and not more
than six months and also’with fine, which shall be not less than one
hundred rupees and not more than five hundred rupees. Enhanced
punishment is prescribed for repeated commission of offences undér
the Act. UnderSection3,imposition of religious disability on ground
Singh, “The
7 For a critical survey of the working of the Act see, Paramanand
Protection of Civil
Scheduled Castes and the Law” at pp. 156-63; Upendra Baxi, “The s
a Baxi, “Untouchable
Rights Act: Pitfalls in Implementation” at pp. 175-85 and Upendr
186-90 in Upendra Baxi
Access to Water: Two Moralities of Law Enforcement” at pp.
1988).
(Ed.), Law and Poverty: Critical Essays (N.M. Tripathi, Bombay
Caste, Law and Empowerment of the Backward Class es
474 es
Fe
from entering, any
of “untouchability” by preventing any person
professing the
place of public worship which is open to other persons
or offer-
same religion or any section thereof; or from worshipping
e of public
ing prayers or performing any religious service in any plac
sacred tank, well,
worship, or bathing in, or using the waters of, any
spring or water-course, in the same mannand erto the same extent
any
as is permissible to other persons professing the same religion or
noted
section thereof, as such person, shall be punishable. It is to be
so that the remnants
that the provision is applicable to all religions
of disability will not continue, even after conversion. Under Section
4, enforcing of social disabilities on the ground of “untouchability” in
the matter of access to public places, facilities and use of articles and
servic es
is punishab le. Refusal to admit persons to hospitals, dispen-
sary, educational institution or any hostel established or maintained
for the benefit of the general public or any section thereof or causing
discrimination against any such person after admission to any of the
aforesaid institutions on the ground of “untouchability” is punishable
under Section 5. Forrefusing,onthe gro “untouchability”, to
of und
sell goods or render services to any person at the same time and place
and on the same terms and conditions at or on which such goods are
sold or services are rendered to other persons in the ordinary course
of business, punishment is prescribed under Section 6.
Second, the consequential rights arising from abolition ofuntouch-
ability are safeguarded by the PCRA by making obstructi toon
such
rights punishable under Section 7.Ifany person molests, injures, annoys,
obstructs or causés or attempts to cause obstruction to any person in
the exercise of any such consequential right or molests, injures, annoys
*’ These include access to any shop, public restaurant, hotel or place of public
entertainment; or the use of any utensils, and other articles kept in any public
restaurant, hotel, dharmshala, sarai or musafirkhana for the use of the general public
or any section thereof; or the practice of any profession or the carrying on of any
occupation, trade or business or employment in any job; or the use of, or access to,
any river, stream, spring, well, tank, cistern, water-tap or other watering place, or
any bathing ghat, burial or cremation ground, any sanitary convenience, any road,
or passage, or any other place of public resort which other members of the public or
any section thereof have a right to use or have assess to; or the use of, or access to, any
place used for a charitable or a public purpose maintained wholly or partly out of
State funds or dedicated to the use of the general public, or any section thereof; or the
enjoyment of any benefit under a charitable trust created for the benefit of the general
public or [any section thereof]; or the use of, or access to, any public conveyance; or
the construction, acquisition, or occupation of any residential premises in any locality,
whatsoever; or the use of any dharmshala, sarai or musafirkhana which is open to the
general public, or to [any section thereof]; or the observance of any social or religious
custom, usage or ceremony or taking part in, or taking out, any religious, social or
cultural procession]; or the use of jewellery and finery,
475
or boycotts® any person by reason of his having exercised the right;
or if by any expressional act incites or encourages any person or the
public generally to practice “untouchability” in any form whatsoever;
or insults or attempts to insult, on the ground of “untouchability”, a
member of a Scheduled Caste, he is punishable with imprisonment for
a term of not less than one month and not more than six months’ and
also with fine, which shall be not less than one hundred rupees and
not more than five hundred rupees. Harassing ofpersons cooperat-
ing withe thpolicy of abolition ofuntouchability is also similarly con-
demne [7° For commission of offences against the property or person
(Which are punishable with two years’ imprisonment) with a reprisal
or revenge for his having exercised the consequential right, the provi-
sion prescribes imprisonment for a term, which shall not be less than
two years’, and also with fine. Under Section 7-A “Whoeyer compels
any person, on the ground of “untouchability”,todo any scavenging
or Weeping OFioremove anycarcass or to-flayany animal or remove
the umbilical cord or to do any other job of a similar nature,.shall be
deemed to have enforced a disability arising outof“untouchability”.
The act ispunishable with imprisonment for a term which shall not be
less than three months’ and not more than six months’ and also with
fine which shall not be less than one hundred rupees and not more
than five hundred rupees. The linkage amidst coercion, slavery and
powerlessness has been traditional one, which the statute intends to
break with combative spirit.
Thirdly, the power of cancellation or suspension of licences of per-
sons practicing untouchability may be exercised in certain cases for
ensuring long-term gain through widespread monitoring. According
to Section 8 When a person who is convicted of an offence under
Section 6 holds any licence under any law for the time being in force
® A person shall be deemed to boycott another person who:
(a) refuses to let to such other person or refuses to permit such other person, to use
or occupy any house or land or refuses to deal with, work for hire for, or do
business with, such other person or to render to him or receive from him any
customary service, or refuses to do any of the said things on the terms on which
such things would be commonly done in the ordinary course of business; or
(b) abstains from such social, professional or business relations as he would
ordinarily maintain with such other person. .
77 Whoever (i) denies to any person belonging to his community or any section
thereof any right or privilege to which such person would be entitled as a member
of puch
of such community or section, or (ii) takes any part in the ex-communication
or
person, on the ground that such person has refused to practice “untouchability
of this Act, that such
that such person has done any act in furtherance of the objects
(shall be punishable
person has done any act in furtherance of the objects of this Act,
and not more than six
with imprisonment for a term of not less than one month
hundred rupees and not
months’, and also with fine which shall be not less than one
more than five hundred rupees.
Caste, Law and Empo werment of the Backward Classes
476 Se ee ee
Oe
in relation
in respect of any profession, trade, calling or employment
ce may,
to which the offence is committed, the court trying the offen
be
without prejudice to any other penalty to which such person may
cancelled
liable under that section, direct that the licence shall stand
or be suspended for such period as the court may deem fit, and every
order of the court so canceling or suspending a licence shall have effect
as if it had been passed by the authority competent to cancel or sus-
pend the licence under any such law. Under Section 9, where the man-
ager or trustee of a place of public worship or any educational insti-
tution or hostel which is in receipt of a grant of land or money from
the Government is convicted of an offence under this Act and such
conviction is not reversed or quashed in any appeal or revision, the
Government may, if in its opinion the circumstances of the case war-
rant such a course, direct the suspension or resumption of the whole
or any part of such grant.
Fourthly, there is a scope for imposing collective fine upon people
and practicing untouchability in an aggravated
livingincertain area
if, after
anner. Under Section 10-A, which was newly added in 1976;
an inquiry in the prescribed manner, the State Government is satis-
fied that the inhabitants of an area are concerned in, or abetting the
commission of, any offence punishable under this Act, or harbour-
ing persons concerned in the commission of such offence or failing
to render all the assistance.in their power to discover or apprehend
the offender or offenders ur suppressing material evidence of the com-
mission of such offence, the State Government may, by notification in
the Official Gazette, imposea collective fine on such inhabitants and
the inhabitants who are liable collectively
apportion such fine amongst
to pay it, and such apportionment shall be made according to the State
Government's judgment of the respective means of such inhabitants
and in making any such apportionment the State Government may
assign a portion of such fine to a Hindu undivided family to be payable
by it. The approach of collective duty through state coercion empha-
sised here is aiming to countervail collective violence or obstruction.
Fifthly, rule of evidence is tilted against the accused persons under
he Act. According to Section 12 “Where any act constituting anoffence
under this Act is committed in relation’ to a’member of a Scheduled
Caste, the-court:shall*prestuime, unless he contrary is proved, that
such act was.committed’on"the atund SPONSSNaBTIICG” Since the
term employed here is Scheduled Caste,'a Buddhist or one professing
Buddhism who does not belong to a Scheduled Caste within the mean-
ing of the Act, cannot invoke this presumption"
”) Mangala v. State ofMaharashtra, AIR 1979 Bom 282.

Non-discrimination on the ground of caste 477
Sixthly,.the offences under the Act are made cognisable in 1976 in
order to make the law stringent” Further, Ho civil court shall entertain
atty suit or éxectite any“decree or enforce any custom, which is incon-
sistent with the provisions of the Act. (Section 13)
Finally, under the newly added Section 15-A, the State Government
shall take such measures as may be necessary for ensuring that the
rights arising from the abolition of “untouchability” are Mmadé avail-
able to,and are availed ofby, the persons subjected to any disability
arising out-of “tintdtichability”” Such measures may incliide provid-
ing of legal aid to the persons subjected to any disability arising out
of “untouchability” to enable them to avail themselves of such rights;
the appointme icers for initiating or exercising supervision
over prosecutions for the contravention of the provisions of this Act;
the Settin Of special courts for the trial of offences under this Act;
Upg
the setting up of Committees at such appropriate levels as the State
Government may think fit to assist the State Government in formulat-
ing or implementing such measures; provision for periodic survey of
the working of the provisions of this Act with a view to suggest meas-
ures for the better implementation of the provisions of this Act; and
the identification of the areas where persons are under any disability
arising out of “untouchability” and adaptation of such measures as
would ensure the removal of such disability from such areas.
11.4.4(b) Schedule the Scheduled Tribes (Prevention

of Atrocities) Act1989
The background of enacting this special law is clear from the Statement
of Objects and Reasons. It refers to various offences, indignities, humil-
iations and harassments cOmmitted against the Scheduled Castes and
2 According toS. 15 every offence punishable under this Act shall be cognisable and
every such offence, except where it is punishable with imprisonment foraminimum
term exceeding three months, may be tried summarily by a Judicial Magistrate of the
first class or in a metropolitan area by a Metropolitan Magistrate in accordance with
the procedure specified in the said Code. - ata
ty against =em
73 “When they assert their rights and resist practices of untouchabili la ei
bonded and forced
or demand statutory minimum wages or refuse to do any
When the Schedule
the vested interests try to cow them down and terrorise them.
spect or honour of their
Castes and the Scheduled Tribes try to preserve their self-re
478 Caste, Law and Empow erment of the Backward Classes
e
7 en ne e
also refers to an increase in the disturbing trend of commission of cer-
tain atrocities like making the Scheduled Caste persons eat inedible
substances and attacks on and mass killings of helpless Scheduled
Castes and the Scheduled Tribes and rape of their women. Holding
that existing | law was inadequate, a special Legislation to.check and
deter Crimes against them committed by non-Scheduled Castes and
non-Scheduled Tribes was regarded as necessary. Its prominent fea-
tures can be analysed as below:
Firstly, the SCSTPAA is applicable to acts done by non-SCs and_non-
STs against SCs and STs coming within the purview of the Act. Thus,
it is basically meant to deal with class conflicts, collective violence and
individual actions motivated by either untouchability or attitude of
oppression. ‘The legal approach of offsetting the social inequality of
gross type is clear in the elaborate policy of the Act.
Secondly, it defines “atrocity” descriptively and presemse pen
ishment for the same. ~ According to Section 3(1) whoever, not being
a member of a SC or a ST, does any of the following acts towards a
member of SC or ST shall be punishable with imprisonment for a term
WN ere be less than six months’ but which may extend to five
years’ a ith fin. TRese include:
(i) forcing to drink or eat any ine
inedible or obnoxious substances;
(ii) acting With iftfent to cause injury, insult or annoyance by
dumping eexcreta , waste matter, ccarcasses or any other
obnoxidus subséance in hispremises or neighbourhood;
(iii) forcibly removing clothes or parading him naked or with
painted face or body or ‘commits any ssimilar act which is
derogatory to human dignity;
(iv) wrongfully occupying or cultivating any land owned by, or
alldtted to, or notified by any competent ‘authority to be
allotted to, amember of a SC or a ST or gets the land allotted
to him transferred;
(v) wrongfully dispossessing from his land or premises or
interfering with the enjoyment of his rights over any land,
premises or water;
(v1) compelling or enticing to do “begar” or other similar forms of
forced or bonded labour other than any compulsory service
for public purposes imposed by Government;
women, they become irritants for the dominant and the mighty. Occupation and
cultivation of even the Government allotted land by the Scheduled Castes and the
Scheduled Tribes is resented and more often these people become victims of attacks
by the vested interests.”
Non-discrimination on the ground of caste 479
(vit) forcing or intimidating not to vote or to vote to_a

particular
candidate or to vote in a manner other than that provided by
law;
(viii) instituting false, malicious or vexatious suit or criminal or
other legal proceedings; ig eg Mt
(ix) giving any false or frivolous information to any public serv-
ant and thereby causing such public servant to use his law-
ful power to the injury or annoyance of a member of a SC or
aSt
(x) intentionally insulting or intimidating with intent to humili-
ate in any place within public view;
(x1) agsaulting or ee force to any woman belonging toaSC ora
ST with intent to dishonour or outrage her modesty;
(xit) being ina position to dominate the will of awoman belonging
to aSC ora ST and using that position to exploit her sexually
to which she would not have otherwise agreed;
(xi) corrupting or fouling the water of any spring, reservoir or any
other source ordinarily used by members of the SC or the ST
so as to render it less fit for the purpose for which it is ordi-
narily used;
(xiv) denying any customary right of passage to a place of public
resort or obstructs such member so as to prevent him from
using or having access to a place of public resort to which
other members of public or any section thereof have a right
to use or access to; and
(xv) forcing or causingto leave his house, village or other place of
residence. ~~
The above listed atrocities reflect a high degree of contempt and intol-
erance that banish civilisational standards and human rights princi-
ples in social relations. It is the unconscionable character of these acts
that has compelled very stringent measures about rules of evidence,
supervision, punishment and administration of the law. Section 3(2)
prescribes very severe punishments for acts of non-SCs and non-
STs, which misuse legal and judicial proceedings for inflicting seri-
ous injuries or losses to SCs or STs or damage their properties. The.
punishment varies with the gravity of the offence, and ranges torn
death penalty tolong-term imprisonment including life imprison-
ment, Ithas béen viewed by the Courts that severity of punishment by
itself’does not amount to ultra vires of the Constitution” Sub-clause
(v) of Section 3(2) provides that the perpetrator of atrocity who “com-
mits any offence under the Indian Penal Code (45 of 1860) punishable
with imprisonment for a term of 10 years’ or more against a person or
74 Jai Singh v. Union of India, AIR 1993 Raj 177.
8
of a Scheduled
property on the ground that such person is a member
to such member,
Caste or a Scheduled Tribe or such property belongs
fine.” Other
shall be punishable with imprisonment for life and with
nced pen-
sub-clauses also have similar policy of prescribing enha
on of
alty. Enhanced punishment is prescribed for repeated commissi
offences (Section 5).
Thirdly, administrative machinery is alerted for effective appli-
cation of the law. Under Section 4 it is provided, “Whoever, being
a public servant but not being a member of a Scheduled Castéor a
Scheduled Tribe, wilfully neglects his duties required to be performed
by him under this Act, shall bepunishable with imprisonment for a
term which shall not be less fhan six months’ but which may extend
to one year.” Under Section o(7) the Staté Government may authorise,
in any district or part thereof, any police officer with the powers of
arrest, investigation and prosecution of persons before any Special
Court , if it considers it necessary or expedient so to do, (a) for the
prevention of and for coping with any offence under this Act, or (b) for
any case or class or group of cases under this Act. All officers of police
and all other officers of Government shall assist the officer. Collective
fines may be imposed by the State Government upon villages or com-
munities involved in infliction of atrocity by positive act or omission
(Section 10-A). Section 17 provides for preventive action to be taken by
the law and order machinery by declaring upon information that an
area is prone to atrocity calling for maintenance of public order and
tranquility7> Duty is cast under Section 21 upon State Government
to ensure effective implementation of the Act subject to compliance
with thé Central Government rules. More particularly such measures
oe a
for the contravention of the provisions of this Act; setting up of com-

mittees for formulation or implementation of such measures; peri-
odic survey of the working of the provisions of this Act for the better
*” A District Magistrate or a Sub-Divisional Magistrate or any other Executive
Magistrate or any police officer not below the rank of a Deputy Superintendent of Police
may, on receiving information and after such inquiry as he may thinks necessary, has
reason to believe that a person or a group of persons not belonging to the Scheduled
Castes or the Scheduled Tribes, residing in or frequenting any place within the local
limits of his jurisdiction is likely to commit an offence or has threatened to commit
any offence under this Act and is of the opinion that there is sufficient ground for
proceeding, declare such an area to be an area prone to atrocities and take necessary
action for keeping the peace and good behaviour and maintenance of public order and
tranquility and may take preventive action.
481
implementation of the Act; and identification of the areas where the
members of the Scheduled Castes and the Scheduled Tribes are likely
to be subjected to atrocities and adoption of such measures so as to
ensure safety for such members. The Central Government shall take
such steps as may be necessary to coordinate the measures taken by
the State Government.
Fourthly, establishment of Special Court is contemplated. Under
Section 14 for the purpose of providing for speedy trial, the State
Government shall, with the concurrence of the Chief Justice of the
High Court, bynotification in the Official Gazette, specify for each
districta Court of Session to be a Special Court to try the offences
under this Act. Special Public Prosecutor for conducting the case shall
be appointed bythé State Government (Section 15).
Fifthly, persons who are likely to commit atrocity offences in an
tribaPares mayBeremoved |sheet Special Court’s Ser beyond rhe
limits oftribal area (Settion 10). Provisions about the procedure for
externment proceeding, implementation, suspension and revocation
of externment order and prescription of conditions for good behaviour
are laid down under the Act. This measure for disarming the mischie-
vous elements matches the basic objective of the law.
Sixthly, rigid legal framework for successful prosecution is estab-
een
apply in relation to any case involving the arrest of any person on an

accusation of having committed an offence under this Act.” The con-
cessions available under the Probation of Offenders Act are categori-
cally denied to the accused persons (Section 19). The property belong-
in®to the offender used for commission of offence may be forfeited to
the Government if the Special Court so decides (Section 7).
- Finally, coordinated efforts of both the levels and organs of gov-
ernment are envisaged for the successful implementation of the Act.
Parliament's supervisory role by scrutiny of the annual report about the
actions taken under the Act is provided for [Section 21(4)]. Cooperative
76 S. 8 provides, “In a prosecution for an offence under this Chapter, if it is proved

that:
(a) the accused rendered any financial assistance to a person accused of, or
reasonably suspected of, committing, an offence under this Chapter, the Special
Court shall presume, unless the contrary is proved, that such person had abetted
the offence; . hee :
is prove
(b) a group of persons committed an offence under this Chapter and if it
ed was a sequel to any existing dispute regardin g land
that the offence committ
committed in
or any other matter, it shall be presumed that the offence was
object.
furtherance of the common intention or in prosecution of the common
a pg a
in the actual working
federalism’s creative contribution is relied upon
:
of the law.
legisla-
While the measures, mechanisms and policies in the above
of exclu-
tive efforts have been comprehensive and innovative, because
become inad-
sive reliance on command and control method they have
and Local
equate, Participative model with constructive role forNGOS
corollary
Self Government units would yield better result. Further, as a
of prohibiting propagation of untouchability (which are done through
expressional acts), there is need for publicising anti-untouchability
policy concerning which there is no clear policy guideline in the Acts.
In the background of severity of the offence, the aggressive posture of
the legislation has considerable relevance. But the way in which they
are abused by invocation in totally unjustifiable circumstances of ordi-
nary acts unconnected with untouchability is alarming. Judiciary has
rightly declined to convict in those cases.
A1.4.4(c) Judicial approach on untouchability >

It was in the context of legal policy on eradication of untouchability, in
~. Appa Balu, that the Supreme Court significantly pronounced:
7 “The judge must bear in mind that social legislation is not a document
for fastidious dialects but means of ordering of the life of the people. To
construe law one must enter into its spirit, its setting and history. Law
should be capable to expar a freedoms of the people and the legal order
can weigh with utmost equal care be made to provide the underpinning
of the highly inequitable social order. The power of judicial review must,
therefore, be exercised with insight into social values to supplement the
changing social needs.’”7”
This observation and practice had not only clarified about judicial
responsibility but also demonstrated the effective method of enforcing
the legal policy. The case involved charge against the respondents that
they restrained the complainant party by show of force from taking
water from a néwly dtig-up borewell on the ground that they were
untouchables. The trial court and the appellate court, on appreciation
of the evidence, reached the concurrent finding that the charge against
the respondents-accused’ was proved beyond reasonable doubt. But
the High Court disbelieved evidence of witnesses on the ground that
there was not uniformity or consistency in regard to actual words
uttered by the accused persons and the manner in which they pre-
vented the complainant party from taking water from the well. Justice
Kuldip Singh declined to agree with High Court and found the evi-
dences as established beyond reasonable doubt. Justice K. Ramaswamy
” State of Karnataka v. Appa Balu Ingale, 1994 SCC (Cri) 1762: 1995 Supp (4) SCC 469.
Non-discri
Sop apie minat ion on the ground of caste
pa area nS OR Sn Re ET 483
elaborately dealt with the sociological and constitutional angulations
of untouchability and observed that the application of the test of a
reasonable man acting in similar circumstances and reasonable doubt
of a reasonable man was the rule, and that the approach of doubtful
Thomas or vacillation or doubting with prejudice was not appropriate
in the context of offences under social legislation where mens rea is
- x) hot an essential ingredient. It canbeinferred from his judgment that
pe theTuleofbenefit of doubt cannot be overstretc hed in. the context of
unntouchability. Toning down of the rule’s rigour in a constitutionally
condemned offence could come from appropriate analysis of the issue
in its historical and social setting. Since there is explanation about the
term untouchability in this judgment, the erstwhile difficulty in the
application of the statute is substantially allayed. How that difficulty
was problematic can be seen by looking to an earlier case, Mangala
decided by the Bombay High Court?
The facts in Mangala involved allegation under Section 7 of PCRA
about the practice of untouchability done by the accused against a
Buddhist. The High Court ruled, “It was for the prosecution. ..to first
show that the complainant was a member of the Scheduled Caste
and that the act was committed in relation to him as a member of
the Scheduled Caste” and acquitted the accused reversing the lower
court’s decision. It is commented by Paramanand Singh that had there
been proper definition to the term “untouchability” it would have been
possible to establish commission of the offence since accrual of right
from abolition of untouchability was available to former-untouchables
also7? Compared to the narrow approach adopted in Mangala, Appa
Balu has made a positive contribution. Virtual overruling of Mangala
took place in State of Kerala v. Chandramohangn®. In this case a question
arose whethef Watighter ofConverted Christian (formerly Scheduled
Tribe), who Was victim Of sextial offence, was to be treated as st or
the purpose of SCSTPAA.
The Court declined to hold that mérely by
change of religion, a person ceased to be a member of Scheduled Tribe
a eMANE Ine question as to whether he ceased to be a member thereof
or not must bedetérmined by the appropriate Court upon the fact of
each case. In such a situation, it has to be established that a person.who
has embraced another religion is still suffering from social disability
and also following t vecustoms andtradition of the community, which
h on aries; eee ¥ 2
\ >
ed
te ;
78 Mangala v. State of Maharashtra, AIR 1979 Bom 282.
ed.Cast es and the Law” in Upendra Baxi (Ed),
77 Paramanand Singh, “The Schedul
Law and Poverty: Critical Essays (N.M. Tripathi, Bombay 1988) at p. 160.
80 (2004) 3 SCC 429: 2004 SCC (Cri) 818.
EME
IE
484 Caste, Law and Empowermen t of the Backward Classes
OO e e
fend-
Regarding constitutionality of denial of right to bail to-of
ers under SCSTPAA, the Supreme Court adopted an approach to
strengthen the legal framework. In State ofM.P. v. Ram Kishna Balothia™
the Court held that the offences uinder Act formed distinct class by
themselves and could not be compared with other offences and hence
exclusion of right to bail was not violative of Articles 14 and 21 of
Constitution: The Court reversed the judgment of M.P. High Court and
apreed-with the decision of Rajasthan High Court in Jat Singh v. Union
of India®. The Court viewed that when members of the Scheduled
Castes and Scheduled Tribes assert their rights and demand statutory
protection, vested interests try to cow them down and terrorise them.
In these circumstances, if anticipatory bail is not made available to
persons who commit such offences, such a denial could not be consid-
ered as unreasonable or violative of Article 14, as these offences form
a distinct class by themselves and could not be compared with other
offences. The Court observed:
“Looking to the historical background relating to the practice of
‘Untouchability’ and the social attitudes which lead to the commission
of such offences against Scheduled Castes and Scheduled Tribes, there is
justification for an apprehension that if the benefit of anticipatory bail is
made available to the persons who are alleged to have committed such
offences, there is every likelihood of their misusing their liberty while
on anticipatory bail to terrorise their victims and to prevent a proper
investigation. It is in this ccmtext that Section 18 has been incorporated
in the said Act. It cannot be considered as in any manner violative of
Article 21.”83
However, the Court has insisted on legalistic approach to avoid the
abuse of special laws. In Masumsha Hasanasha Musalman v. State of
Maharashtra* it was held, “To attract the provisions of Section 3(2)(v)
of the Act, the sine qua non is that the victim should be a person who
belongs to a Scheduled Caste or a Scheduled Tribe and that the offence
under the Indian Penal Code is committed against him on the basis
that such a person belongs to a Scheduled Caste or a Scheduled Tribe.
In the absence of such ingredients, no offence under Section 3(2)(v) of
the Act arises.” Similarly, the requirements of committal proceeding
before taking cognisance of the case by the Special Court and desig-
nation of Session Court as Special Court have been insisted in some
cases.”8
81 (1995) 3 SCC 221: AIR 1995 SC 1198.

® AIR 1993 Raj 177.
*° State of M.P. v. Ram Kishna Balothia, (1995) 3 SCC 221: AIR 1995 SC 1198.
*4 (2000) 3 SCC 557: 2000 SCC (Cri) 722: AIR 2000 SC 1876.
*° M.A. Kuttappan v. E. Krishnan Nayanar, (2004) 4 SCC 231: 2004 SCC (Cri) 1073; Moly
v. State of Kerala, (2004) 4 SCC 584: 2004 SCC (Cri) 1348; Gangula Ashok v. State of A.P.,
Acceptance of caste as a factor to undo past injustices
485
11.5 Acceptance ofcaste as a factor to undo past injustices
‘A.t ishorn
to be removed by using another thorn’, says aproverb.
AAP CBN! casks cuterion for undoing past injustices is largely justi-
fied on this notion. For example, in identifying the depressed castes, the
1931 Census looked to the prevalence ofthe folowing}factors: inability
to be served Brahmans,
by arbers, water-carriers, tailors who serve
the caste Hindus: inability to serve caste Hindus, to enter temples, and
to use public conveniences such
as roads, ferries, wells or schools; and
inability to be disassociated from despised occupation.* These criteria
are based on discrimination in access to human rights and dignity, For
ameliorating the conditions of these categories of people and to restore
to them their human rights, the critétia chosen are both rational and
connected to the purpose. President’s notification of Scheduled Castes
on this basis for protective discrimination in 1950 was non-controver-
sial. But controversy arose when Other Backward Classes of people
or Socially
Educat
and ionall Backward
y Classes of people were to be
identified forwhich no definite criterion of specific past injustice was
forthcoming. Further, sincé Census reports do not disclose caste statis-
tics, reliance on the 1931 data has become problematic. 3
Various Backward Class Commissions appointed by State and
Central Governments have used the criterion of caste as one ofthe
parameters or initial reference groups. The_First Backward Classes
SOR 1959(Kaka Kalelkar Commission) reasoned, “A variety
of causes—social, environmental, economic and political—have oper-
ee cee a ST SGBRES TGR forcontufted iD reste the Bait
colossal problem of backwardness. Economic backwardness is the
JestiitalldnoriheGace GE any social evils.” Low social position in
traditional caste hierarchy, lackof education, and inadequate repre-
sentation in government service, trade, commerce or industry were
the causes
for backwardness, it said. The Second Backward Classes
Commission 1978 (Mandal Commission) considere caste as a natu-
ralcollectivity for de ining backwardness. While itrecognised the
changes occurred in the caste system owing to democracy, urbanisa-
on SRASSEaNTsatiOn and masseducation, it declined to accept any
material alteration in the basic structure of caste. Since it is the opin-
ion of Government about backwardnéss of any community as OBC or
SEBC that is material for protective discrimination programme, State
policy influenced by the Commission reports gained significance. The
policies were judicially scrutinised and controlled in course of litiga-
tions from time to time.
and Vidyadharan
(2000) 2 SCC 504: AIR 2000 SC 740: 2000 AIR SCW 279: 2000 Cri LJ 819
v. State of Kerala, (2004) 1 SCC 215: 2003 AIR SCW 6511.
8 Census of India, Vol. I (1931, Part I) at p. 472.
i
Judiciary has consistently emphasised on lication of multiple
-
factor tests in identifying the beneficiaries ofprotective discrimina -
backward
tion, and has declined to rely solely on caste in identifying backwane
SieofMigore, “Soc ial
ness. It was said in SA Ballx.
“nessis on the ultimate analysis theresult of poverty, to a very large
extent. The classes of citizens who are deplorably poor automatically
become socially backward. They do not enjoy a status in society and
have; theref toore , t to take a backward seat. It is true that
be conten
social backwardness which results from poverty is likely to beaggra-
vated by considerations of caste to which the poor citizens maybelong,
but that only shows the relevance of both caste and poverty in deter-
mining the backwardness of citizens.”
Thus, there is an overpowering mutuality between poverty and
caste in the Indian scene. Recognising poverty as the true source of the
evil of social and economic backwardness and caste as a relevant fac-
tor in determining backwardness, the Court also noticed occupation
and habitation as two other important contributing factors and finally
stressed the need for a penetrating investigation. It was said, “The
occupations of citizens may also contribute to make classes of citizens
social y backwa rd.
There s, as
which are treated
are some occupation
beoe Bree ER conventional beliefs, and Classes of citizens who
fotlow these occupations that are apt to become socially backward, The
place of habitation also playemot a minor part in determining the back-
wardnéss of a community ofpersons. In a sensé; the problem of social
backwardnessis the problem of Rural India and in that behalf, classes
of citizens occupying a socially backward position in rural area fall
within the purview of Article 15(4). The problem of determining who
are socially backward classes is undoubtedly very complex. Socio- log-
ical, social and economic considerations come into play in solving the
problem and evolving proper criteria for determining which classes
aresocially backward. This is obviously a very difficult task. Ttwill
ecti
need an elaborate investigation andcollof on
data-and examining
the said data ima rational ard scientific Way.” = —
In R. Chitralekha v. State of Mysore** the Supreme Court emphasised
that under no circumstances a “class” can be equated to a “caste”,
though the caste of an individual or a group of individuals may be
considered along with other relevant factors in putting him in a par-
ticular class. The Court clarified that if in a given situation caste is
excluded in ascertaining a class within the meaning of Article 15(4) of
the Constitution, it does not, vitiate the classification if it satisfied other
*” AIR 1963 SC 649 at p. 659 per P.B. Gajendragadkar, CJI.

5* AIR 1964 SC 1823.
Acceptance
Re ofSecaste as a factor to undo past injustices
ieee eh ame cache ier rl 487
tests. In ea Saieadean Union of India®®, Ramaswamiz, J. took care to
say, ~..if the reservation in question
had been based only
on caste and
had not taken into account the social and educational backwardness of
the caste in question, itwobe
ul violati
d ve of Article 15(1). But it must
not be forgotten thata caste is also a class of citizens and if the caste
as a whole is socially and educationally backward reservation can be
made in favour of such a caste on the ground that it is a socially and
educationally backward class of citizens within the meaning of Article
15(4).” In the instant case the list of socially and educationally back-
ward classes had been specified by caste. But that did not necessarily
mean that caste was the sole consideration and that persons belong-
ing to these castes were also not a class of socially and educationally
backward citizens.
———s
ett
by allowing a provision to be made for their advancement as against

the right of equality of citizens, such an objective approach was indis-
pensable. Inclusion of religion as a criterion for identification of back-
wardness is, however, not convincing as it goes against secularism,
and since religions bear no indicia of backwardness. In Indra Sawhney”
the majority of the court considered religious communities as initial
reference groups for surveying and identification of backwardness,
because the identification process should begin somewhere, and ulti-
mately entire populace should be surveyed. There is no indication of
attributing the factor of backwardness to any religion.
In A. Periakaruppan v. State of T.N., the Court observed, “A caste
has always been recognised as a class ...there is no gainsaying the fact
that there are numerous castes in this country which are socially and
educationally backward. To ignore their existence is to ignore the facts
of life.”
In K.S. Jayasree v. State of Kerala”, in question was a government order
specifying that only citizens who were members of families which
had an aggregate income of less than Rs 6000 per annum and which
8. AIR 1968 SC 507.
” AIR 1968 SC 1379.
(L&S) Supp 1.
1 Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217: 1992 SCC
2 (1971) 1 SCC 38: AIR 1971 SC 2303.
* (1976) 3 SCC 730: AIR 1976 SC 2381.
werment of the Backward
Caste, Law and EmpoS Classes
488 N ci
cA
the annexures
belonged’ to the caste and community mentioned in
and educationally
to the government order would constitute socially
The Court upheld
backward classes for the purposes of Article 15(4).
the sole or domi-
the order and held, “Caste cannot however be made
rty, is likely
nant test... Social backwardness, which results from pove
rel-
to be aggravated by considerations of their caste. This shows the
evance of both caste and poverty in determining the backwardness of
citizens. Poverty by itself is not the determining factor of social back-
wardness. Poverty is relevant in the context of social backwardness.”
Justice O. Chinnappa Reddy in K.C. Vasanth Kumar v. State of
Karnataka considered class poverty, not individual poverty, as the
primary test. Other ancillary tests were the way of life, the standard of
living, the place in the social hierarchy, the habits and customs, place
of residence etc. He said, “Notwithstanding our antipathy to caste and
sub-regionalism, these are facts of life which cannot be wished away.
If they reflect poverty, which is the primary source of social and educa-
tional backwardness, they must be recognised for what they are along
with other less primary sources.” Caste-plus-means test was favoured
by other judges in the same case where broad guidelines were laid
down for identification of backward classes.
Contrary to the above mainstream view, it is viewed by Justice D.A.
Desai in Vasanth Kumar that in the background of transformation of the
“ caste structure, acceptance of castéTabélas
the basis fordetermining
social and educational bacl.wardness was questionable. Approvingly
citing the observation of noted sociologist Shri I.P. Desai to the effect
that if the State, accepts caste as the basis for backwardness, it legiti-
mises.the ‘caste system which contradicts secular principles and sec-
ondly that the traditional caste system has broken down giving rise
to emergence of contractual relationship between individuals, he dis-
cards the caste criterion. He observes, “The only criterion which can
be realistically devised is the one of economic backwardness. To this
maybe added some relevant criteria such as the secular character of
the group, its opportunity for earning livelihood, etc. but by and large
economic backwardness must be the load star.’ The Learned Judge
regarded that this approach sought to translate into reality the twin
constitutional goals of striking at the perpetuation of the caste strati-
fication of the Indian society that had arrested its progressive move-
ment and to progressively eliminate poverty by giving an opportunity
to the disadvantaged sections of the society to raise their position and
be part of the mainstream of life.
** 1985 Supp SCC 714: AIR 1985 SC 1495, para 80.

Acceptance of
SENOS SrA atonsencaste as a factor to undo past injustices
riclehttn tiveness’ Seraespinal 489
There is reiteration of the Desai proposition in the dissenting views
ofJustice Kuldip Singh and Justice R.M. Sahai in Indra Sawhney v. Union
of India®. Kuldip Singh,J.observed:
“Secularism is the basic feature of the Indian Constitution. It envis-
ages a cohesive, unified and casteless society. The Constitution has com-
pletely obliterated the caste system and has assured equality before law.
Reference to caste under Articles 15(2) and 16(2) is only to obliterate it.
The prohibition on the ground of caste is total, the mandate is that never
again in this country caste shall raise its head. Even access to shops on
the ground of caste is prohibited. The progress of India has been from
casteism to egalitarianism — from feudalism to freedom...Caste poses
a serious threat to the secularism and as a.consequence to the integrity
of the country...Caste and class are different etymologically. When you
of caste you never mean class or the vice—versa. Caste is an iron
talk
frame into which people keep.on.falling by. birth.,. Except the aura of
caste there may not be any common thread among the caste-fellows to
give them the characteristic of a class. On the other hand, a class is a
homogeneous group which must have some live and visible common
traits and attributes.’°
Justice Singh held that castes could not be adopted as collectivities for
the purpose of identifying the “backward class” under Article 16(4).
pone Segue
He agreed With the reasoning and conclusions reached by R.M. Sahai,

J. to the effect that occupation (plus income or otherwise) or any other
secular collectivity can be the basis for the identification of “backward
classes”. Caste collectivity is unconstitutional, and as such, not permit-
ted.
According to Justice R.M. Sahai, the backwardness of followers of
traditional occupation” has been primarily economic or educational,
°° 1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1.

% Ibid, at pp. 176-7; paras 341 and 342. Professor Andre Beteille, Department of
Sociology, University of Delhi in his book The Backward Classes in Contemporary India
has succinctly brought out the distinction between “caste” and “class” in the following
words:
“Whichever way we look at it, a class is an aggregate of individuals (or, at best, of
households), and, as such, quite different froma caste which is an enduring group. This
distinction between an aggregate of individuals and an enduring group 1s of
fundamental significance to the sociologist, and, I suspect, to the jurist as well. A class
derives the character it has by virtue of the characteristics of its individual members.
with
In the case of caste, on the other hand, it is the group that stamps the individual
may change,
its own characteristics. There are some affiliations which an individual
in principle a caste
including that of his class; he cannot change his caste. At least
members change their
remains the same caste even when a majority of its individual
to the means of production; it would
occupation, or their income, or even their relation
a class in this way.”
be absurd from the sociological point of view to think of ies,
” Such as agriculture, market gardening, betel-leaves growers, pastoral activit
tailors, dyers and weavers, petty ae
village industries like artisans,
temple service, toddy selling, oil mongering,
agricultural activities, heralding,
Caste, Law and Empo Backward Classes
werment of the a
490 a an ac Lh a
li
Nor it can be
and identification of such class cannot be caste based.
e poverty” cannot
founded, only on economic considerations, as “mer
considerations
be the test of backwardness. With these two negative
considera-
stemming out of constitutional constraints, two positive
iple of
tions, equally important and basic in nature, flow from princ
be
constitutional construction: one that the effort should, primarily,
directed towards finding out a criteria which must apply uniformly to
citizens of every community, second that the benefit should reach the
would be to mark out various
needy. Ideal and wise ‘method, therefore, '
tndGit(hey Sel see
occupaligns, ee
ard, and weigh thenrin-a balance Of Economic conditions. Advantage
‘ofoccupation-based identification would be that it should apply uni-
formly irrespective of race, religion and caste. Since Article 16 forbids
classification on the ground of caste, no backward class could, there-
fore, be identified on the basis of caste. Thommen, J. also expressed
similar opinion.
11.6 Criticisms against caste-based identification of backwardness

The defects of caste criterion in identification of beneficiaries of protec-
discrimination are brought out in dissenting judgments and _aca-
five
on untouchability
demic writings, While forthe purpose of eradicatiof
~and amelioration of Scheduled Castes and Scheduled Tribes, caste and
racial factors have been vegarded as unobjectionable, for identifying
OBC or SEBC their application is experienced tobe problematic.
Firstly, since caste is a constitutionally prohibited ground of dis-
crimination and has linkage with religion, use of it even for ameliora-
tive purpose is not appropriate especially when alternative and secu-
lar criteria can be used for identification of backward classes. Since for
categories other than SC/ST, caste is not a thorn-like agonising factor, it
looses relevance as a countervailing measure.
Secondly, caste in the present day world is not reflecting attributes of
superiority or subordination with privileges and disabilities because
of the social dynamics of urbanisation and education. As viewed
by A.M. Shah, “A correct understanding of the caste-situation today
requires recognition of the fact that 25.7 per cent of India’s population
is urban. Therefore, it would be incorrect to define caste only in terms
of the village community, as is done frequently.” Further, in villages
combating, astrology, etc. 1992 SCC (L&S) Supp 1 at pp. 314-15.

*8 Indra Sawhney v. Union ofIndia, 1992 Supp (3) SCC 217: AIR 1993 SC 477: 1992 SCC
(L&S) Supp 1 at pp. 158-59.
” A.M. Shah, “The Judicial and the Sociological View of the Other Backward
Classes” in Ghanshyam Shah (Ed.), Social Transformation in India, Vol. I (Rawat
Publications, New Delhi 1997) at pp. 254, 260.
Criticisms against caste-based identification of backwardness 491
OS son. 1 SASS RS ana rn
also, the economic changes like fragmentation of land holding, reli-
ance on non-agricultural income or occupation, and scarcity of agri-
cultural labour have resulted in altering the economic power base or
subjection of castes.
Thirdly, determination of status of caste on the basis of caste-wise
Statistics of 1931 census, as is presently done by various Commissions,
is unscientific. A long period of 75 years’ must have brought tremen-
dous changes in the social and economic position of people in various
castes. Some castes have moved upward by dedicated efforts, enter-
prising attitude and enlightenment, in spite of their past position.
According to Yogendra Singh, the process of social mobility through
new jobs, education, enterprises, access to political offices, etc. have
severely fractured the homogeneity of communities, and made it pos-
sible now to look at the Indian structure in terms of categories such
as occupation, class, ideology etc. rather than as communities such as
caste, kinship, tribe or religious groups.’” Further, the constitutional
provisions refer to the present backwardness for amelioration.
Fourthly, caste based identifications have great divisive tendency in
view of the fact that irrorder to-get-the-benefits, devious methods are
adopted by false attribution.of some characteristics or even by false
certificates. The means test that is used to keep away the creamy layer
is not foolproof in practice in checking undeserved claims. These dis-
tortions divide the society further. As Sen, J. said in Vasanth Kumar,
“Irrational and unreasonable moves by the State will slowly but tear
apart the fabric of society.”"°? To remember the words of R.H. Tawney,
“because men are men, social institutions, property rights, and the
organisation of industry, and the system of public health and education
should be planned, as far as is possible to emphasise and strengthen,
not the class differences which divide but the common humanity
which unite them.”
Justice V.R. Krishna Iyer has given a word of sociological caution™:
“In the light of experience, here and elsewhere the danger of ‘res-
ervation’, it seems to me, is three-fold. Its benefits, by and large, are
snatched away by the top creamy layer of the ‘backward’ caste or class,
thus keeping the weakest amongst the weak always weak and leaving
the fortunate layers to consume the whole cake. Secondly, this claim
1 Dipankar Gupta, supra, n. 45 at p. 153. 3
1 One example of tremendous development of a caste classified as backward in
;
1931 census during subsequent decades is the Bunt community in Karnataka.
n and Change in India (Manohar, New Delhi
2 Yogendra Singh, Social Stratificatio
. 161-63, 220-22.
AIR 1985 SC 1495;
oe KE Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714:
Arts. 15(4) and 16(4) decisions
he viewed that unless moderation is not injected into
social justice.
growing sense of injustice would destroy rather than advance
4 State of Kerala v. N.M. Thomas, (1976) 2 SCC 310.
492 Caste, Lawaand Empowerment of the Backward Classes
Fo ge ln
and vocal groups
is overplayed extravagantly in democracy by large
lightened by the
whose burden of backwardness has been substantially
opportunities
march of time and measures of better education and more
as a means
of employment, but wish to wear the ‘weaker section’ label
r brack-
to score over their near-equals formally categorised as the uppe
ove-
ets. Lastly, a lasting solution to the problem comes only from impr
ment of social environment, added educational facilities and cross -fer-
d
tilisation of castes by inter-caste and inter-class marriages sponsore
as a massive State programme, and this solution is calculatedly hidden
from view by the higher ‘backward’ groups with a vested interest in the
plums of backwardism.”
It is viewed that caste-based reservation perpetuates caste system, as
reservation once introduced, faces reluctance for withdrawal.’ Further,
the dominant section of the backward caste, in spite of Indra Sawhney
mandate to exclude creamy layer, would corner the benefits at the cost
of the weakest amidst their own brethren.’
11.7 Towards identifying the most deserving beneficiaries:

problems and perspectives
11.7.1 General
Success
of any welfare programme, which_offers advantageto any
target group, depends mush upon the accurate identification of ben-
eficiaries who are in need of such assistance. Since_resources like
employment and_educational opportunities are scarce, sniitlement to
Wshie SERS in these matters should be decided_on the basis of real
comparative disadyantage. That will actually help the target group
by eliminating, from entitlement to artificial support, those who do
not have comparative disadvantage but have crossed the Rubicon and
merged with the forward section by acquiring progressive features.
The Rawlsian \Peobosttion that the least advantaged sections of society
shall bé given the greatest attention and care‘in theCourse of
deviat-
ing from. the principle-of equality before law inorderto bring a more
egalitarian equality has great relevance in operating the social justice
strategy in the Indian context.” While the overall development in this
respect, as can be gathered from earlier discussion, is towards iden-
"0° S$. Ranganathan, Constitution of India: Five Decades (1999) at p. 312.

6 P.P. Rao, “Right to Equality and the Reservation Policy” (2000) 42 JILI 193 at
p. 200.
'” The “difference principle” of justice enunciated by Rawls contemplates equality
for all, both in the basic liberties of social life and also in distribution of all other
forms of social goods, subject only to the exception that inequalities may be permitted
if they produce the greatest possible benefit for those least well off in a given scheme
of inequality.
Towards identifying the most deserving beneficiaries
Oe LS AEA EANNS.SK aN eater 4
tifying the most deserving beneficiaries, some of the measures and
problems involved in this matter needs to be elaborately considered.
The problem of inner reservation, the factor of non-birth entry of oth-
ers (by marriage, adoption and conversion) into castes or reservation
categories and scope of creamy layer test vis-a-vis SC/ST will be exam-
ined here. Introduction of new paradigm of “compelling reasons” in M.
Nagaraj has persuaded for more objective scrutiny of the presence of
backwardness, inadequacy of representation and overall administra-
tive efficiency so as to comply with all the constitutional requirements
without which the structure of equality of opportunity in Article 16
would collapse. An illustration given about “compelling reasons” in
M. Nagaraj can be looked into, in order to know its method of practical
application.
he State is not bound to make reservation for SC/ST in matter of
omotions. However, if they wish to exercise their discretion and
make suchprovisthe
ionState,has to collect quantifiable data showing
backwardness of the class and inadequacy of representation in that
classinpublic employment in addition to compliance with Article 335.
~ Thus, objective determination of the factual position was insisted.
Looking to the relation between creamy layer rule and secularism, the
Court observed, “In Indra Sawhney this Courthas, therefore, accepted
caste as determinant of backwardness and yet it has struck a bal-
ance with the principle of secularism which is the basic feature of the
Constitution by bringing the principle of creamy layer.” As described
in Nair Service Society case, the creamy layer rule is a necessary bargain
between the compelling ends of caste-based reservations and the prin-
ciple of secularism, and is “a part of the constitutional scheme."
11.7.2 Development of creamy layer test for OBC and SEBC

on identification of backward-
Continuing the mainstream approach
ness,.the majority in Indra Sawh ney’
viewed that one had to begin
somewhere—w ith some group, class or section, and_there was no set
or recognised method, but the ultimate idea was to survey the entire
populace. Hence, one could well begin with caste which represented
s,
classes-or groupings, more
explicit identifiable social particularly
when Afticle 16(4) sought to ameliorate social backwardness. “What is
unconstitutional with it, more so when caste, occupation, poverty and
social backwardness are so closely intertwined in our society?” the
Court examined and said, “Individual survey is out of question, since
Article 16(4) speaks of class protection and not individual protection.
08 Nair Service Society v. State of Kerala, (2007) 4 SCC 1.
of himself
The leading judgment was rendered by B.P. Jeevan Reddy, J. on behalf
JJ.
and Kania, C.J., M.N. Venkatachaliah and A.M. Ahmediz,
494 Caste, Law and the Backward Classes
Empowerment ofISS
e a cnt NS r
=, SII
identification
This does not mean that one can wind up the process of
or oth-
with the castes. Besides castes (whether found among Hindus
classes and denomins
ers), there may be other communities, groups,
dingly,
tions which may qualify as backward class.of citizens.” Accor
backward class of citizens amidst Muslim, Christian, Sikh, Buddhist
and other religious communities could also beidentified. It_isimpor-
tant to note that the majority did not treat caste as adominant criterion,
or as inevitable one, but only as an initial reference group for the sake
of convenience. It did not look to caste as standing for disabilities OF
privileges. Court’s prescription of means test to exclude the cream
layer has made laudable contributiontoensure that the benefi ofts
pro-
tective discrimination would go to the really deserving section.
“BP. Jeevan Reddy, J. for majority observed, “Ina backward class
under Clause (4) of Article 16, if the connecting link is the social back-
wardness, it should broadly be the same in a given class. If some-of the
members are far too advanced socially (which in the context, necessar-
ily means economically and, may also mean educationally) the connect-
ing thread between them and the remaining class snaps. They would
be misfits in the class. After excluding them alone would the class be
a compact Class. In fact, such exclusion benefits the truly backward.”
Kuldip Singh, J. observed, “Economic ceiling to cut off the backward
class for the purpose of job-reservations is necessary to benefit the
needy-sections of the class. Means test is imperative to skim-off the
affluent sections of the buckward classes.”""t R.M. Sahai, J. referred to
the word “is” in Article 16(4) and interpreted, “The group should not
have suffered only but it should be found to be suffering with such
disabilities. If a class or community ceases to be economically and
socially backward or even if it is so it is adequately represented then
no reservation can be made as it no more continues to be backward
even though it may not be adequately represented in service or it may
be backward but adequately represented... Income apart, provision
should be made that wards of those backward classes of persons who
have achieved a particular status in society either political or social
or economic or if their parents are in higher services, then such indi-
viduals should be precluded to avoid monopolisation by the services
"Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217: AIR 1993 SC 477: 1992
SCC (L&S) Supp 1 at p. 428, para 792. Ratnavel Pandian, J. dissented from the view
categorically.
Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217: AIR 1993 SC 477: 1992 SCC
(L&S) Supp 1 at p. 196, para 385. Per Desai, J. in K.C. Vasanth Kumar “If a survey is made
with reference to families in various castes considered to be socially and educationally
backward, about the benefits of preferred treatment, it would unmistakably show that
the benefits of reservations are snatched away by the top creamy layer of the backward
castes. This has to be avoided at any cost.” AIR 1985 SC 495.
Se Sa pane RRs ih 495
reserved for backward classes by a few. Creamy layer, thus, shall stand
eliminated.”"? In Ashoka Kumar Thakur™ and Indra Sawhney II'*4 the
Supreme Court nullified arbitrary governmental policies in fixing the
crit
forer
determia
ining creamy layer (for example, fixing a very high
criterion like annual income of Rs 10 lakhs) or for éx¢liding the test
altogether In Nair Service Society v. State of Kerala3 the government
order based on Narendran Commission Report’s recommendation
providing for exclusion of persons earning more than Rs 3 lakhs per
annum on ground of belonging to creamy layer in spite of their mem-
bership of backward class was struck down by the Supreme Court as
unconstitutional. The Court found no justifying reason for increasing
the limit from Rs 1.5 lakhs based on Joseph Committee report, which
had worked out the economic factors like increase in consumer price
index, to Rs 3 lakhs within a span of three years’. The Court directed
the State to constitute another Commission to scientifically determine
the income limit and exclude from the creamy layer, members of back-
ward class having heredioccupa y like blacksmith or goldsmith.
tartion
The Central Government has fixed the limit at Rs 2.5 lakhs. According
to one estimate, this criterion “would not even exclude the entire top
ten per cent of the population.” It is submitted, the concept and law
of creamy layer have significant focuS-on‘social justice by trying to
reach the really needy persons. However, its determination shall be
scientific:
1e Constitutional Bench of the Supreme Court in Ashoka Kumar
Thakur (2008) continued the policy of upholding caste criterion as
one_of thé criteria for
identification of OBC and SEBC subject to the
application ofcreamy layer test. The judges considered the reasons
for application of creamy layer test in the context of Articles 15(4) and
16(4) given in Indra Sawhney as equally relevant and applicable in case
of Article 15(5) also.” The judges have emphasised about reasonable
application of state power to exclude all the undeserving.
Most of the Commissions, and the government orders based on their
recommendations used” caste critér determine the backward
to ion”
class; But Rane.Commission of Gujarat has chalked_out a. different
path; re écting casteasthé basisforascertaining social and educational
12 1992 SCC (L&S) Supp 1 at p. 330, para 629.

—_
13, Ashoka Kumar Thakur v. State of Bihar, (1995) 5 SCC 403: AIR 1996 SC 75.
4 Indra Sawhney v. Union of India, (2000) 1 SCC 168: 2000 SCC (L&S) 1.
'S (2007) 4SCC 1.
Seminar
ee
16 Pradipa Chaudhry, “Does Caste indicate deprivation?” (May 2005) 549
ee
26, at p. 29. 7
para 129 of Arijit Pasayat
af Re 152 of the judgment by K.G. Balakrishnan, CJ.;
Kumar Thakur v. Union
and Thakker, JJ. and para 52 of Dalveer Bhandari, J. in Ashoka
of India, (2008) 6 SCC 1.
d
backwardness. Responding to the abuses and defects of caste-base
the Commission identified backwardness by looking to
résetVation,
low-income brackets of all occupational groups so that interests of all
sections of society could be protected. With the advancement of scien-
tific study of society and refinement of sociological tools, identifica-
tion of backward classes on non-caste criterion is perfectly possible, as
demonstrated in Rane Commission’s functioning.
11.7.3 Problem of inner reservation or micro classification amidst

Scheduled Castes
The fact that there has not been uniform level of development amidst
various castes grouped-under the category of Scheduled Castes has
given rise to the problem of uneven competition because of which
more advanced sections among them are able to get the benefits and
the weaker of the weakest are lagging in the race. Since there is no
applicationof creamy layer test to exclude the forward section from
the competition within the category of Scheduled Castes because of
confinement of Indra Sawhney judgment only to OBC and SEBC, this
unfair situation has arisen. This has provoked some states to make
sub-groups within the Scheduled Castes and allocate quota for each
sub-group in a compartmentalised manner. Judicial response to such
policy is negative in E.V. Chinnaiah'® judgment. It appears, from the
angle of accommodation ot both the attainments and needs of social
transformation a critical outlook is required on the constitutional
development in this regard.
The case was relating to constitutionality of the Andhra Pradesh
Scheduled Castes (Rationalisation of Reservation) Act, 2000 enacted
on the basis of report given by Justice Ramachandra Raju Commission
constituted by State of Andhra Pradesh in 1996. The Commission
looked into the statistical details about the extent to which various
castes listed as Scheduled Castes in the Presidential Order got reser-
vation benefits in educational institutions and public employment. It
inferred that there was disproportionate distribution of reservation
benefits in favour of the Mala and Adi Andhra groups of Scheduled
Castes whereas the Madiga and Relli group of Scheduled Castes were
not adequately represented to get the benefits, compared to their
respective population. The Commission found that the Scheduled
Castes were a very heterogeneous group with wide disparities in social,
economic, cultural, occupational and educational levels. Accordingly,
it recommended for rational categorisation of these castes into four cat-
egories and for allocation of their entitlement broadly (but not strictly)
"8 E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394.

Towards ident
oa ena ifyingiit the most deserving beneficiaries
shi ti i 497
on the basis of population in order to promote equity and rectif
y the
injustice: A. Relli group 1 per cent; B. Madiga 7 per cent; C. Mala
6 per
cent; and D. Adi Andhra 1 per cent.
The State Government acted upon the Report and issued govern-
ment order in 1997 for such categorisation. When challenged, the three
-Judge Bench of the Andhra Pradesh High Court, by a judgment dated
18 September, 1997, quashed the government order on account of non-
compliance with Article 338(9) of the Constitution which required the
Central and State Governments to consult the National Commission
for SCs/STs in all major policy matters affecting the SCs and STs. This
defect was rectified by subsequent consultation with the National
Commission and getting of appropriate directions from it about the
matter. Following those directions, in 2000, an ordinance was issued
which was later substituted by the impugned Act.
When challenged again, the High Court of Andhra Pradesh by 4:1
upheld the constitutionality of the Act. The majority had reasoned:
(.) The enumeration of Scheduled Castes in the Presidential
Order did not lead to an inference that all of them were
equal to each other nor did the conglomeration of castes in
the Order amount representation of “a caste” as a whole;
(11) Distribution of legislative power between two levels of gov-
ernment in federal system made the states competent to
enact in the matter of access to educational institutions or
services in the state;
(ii) AstherewasnoFundamentalRightto reservation, and instead,
the state had discretion to decide its extent and manner, it
was within the state’s competence and duty to give prefer-
ence to the most backward in order to uplift the educational
and social interests of the Scheduled Castes and guarantee
the percolation of reservation benefits equitably; and
(iv) There was compliance with Article 338 and there was no vio-
lation of Article 341(2) of the Constitution.
The question of constitutionality of the Act came before the Supreme
Court in appeal. The five-Judge Constitutional Bench unanimously
disagreed with the High Court and declared the Andhra Pradesh Act
as ultra vires of the Constitution. N. Santosh Hegde, J. gave a leading
judgment on behalf of himself, S.N. Variava and B.P. Singh, tHee
Sema and S.B. Sinha, JJ. rendered two separate concurring judgments.
The discourse on Article 341 and on reasonable classification consti-
tutes major chunk of judicial reasoning.
498 Caste, Law and Empowerment of the Backw ard Classes
ee
a rere
11.7.3.1 Article 341(1) discourse
Article 341(1) provides that the President may, with respect to any State
or Union Territory after consultation with the Governor thereof, by
public notification, specify the castes, or races or tribes which shall for
the purposes of this Constitution be deemed to be Scheduled Castes
in relation to that State or Union Territory. According to Article 341(2),
Parliament may by law include or exclude from the list of Scheduled
Castes specified in a notification issued under Clause (1) any caste, race
or tribe or part of or group within any caste race or tribe, but save as
aforesaid a notification issued under the said clause shall not be varied
by any subsequent notification.
Thus, the list, which. is initially prepared in consultation with
the Governor, is given sanctity and kept above manipulations by
the states. The Supreme Court referred to the views of Constitution
Makers. Dr. B.R. Ambedkar had viewed, “The object is to eliminate
any kind of political factors having a play in the matter of disturbance
in the Schedule so published by the President.’""” While Sri Kuladhar
Chaliha welcomed the policy of consulting Governor before finalising
the list, he suggested for recognising provincial legislature’s voice on
the matter consistently with that of Parliament.’ Sri Muniswami Pillai
opposed this suggestion, expressing his apprehension that Ministers
in the Provinces might abuse this power to blackmail the specific com-
munities amidst Schedule“ Castes in case they did not toe the path
suggested by the Ministers." Pandit Thakur Das Bhargava proposed
an amendment for decennial review of the list by the President so that
castes might not become stereotyped and might not lose the capacity
of travelling out of the schedule when the right occasion demanded
it.7 Although this proposal was rejected, the dynamic idea behind
it to make the privileges available only to the deserving categories
and exclude the advanced sections from them had positive features.
The only inference that can be drawn from the Constituent Assembly
Debates is that the list should not be disturbed by the states.
What really amounts to disturbance of the list needs to be holisti-
cally considered by looking to various provisions of the Constitution.
It is in this crucial task that, it is submitted respectfully, the Supreme
Court failed to take note of the constitutional perspective of integrated
approach. According to Santosh Hegde, J., “Therefore any executive
action or legislative enactment which interferes, disturbs, rearranges,
regroups or reclassifies the various castes found in the Presidential
™ CAD, Vol. IX, at p. 1639,

20 Ibid, at p. 1640.
1 Ibid, at pp, 1640-41.
2° Ibid, at p. 1639.
e C” 499
List will be violative scheme of the Constitution and will
be violative
of Article 341 of the Constitution.” It is submitted, this is
a sweep-
ing statement, which goes beyond avoidance of disturbance
of the
Presidential List for the following reasons.
First, states have discretion to plan about the method of carrying out
reservation programme in such a way as to promote the cause of social
justice and help the weaker of the weakest in its course. Since there is
no right to reservation as laid down in several cases" and since states
have both power and responsibility to protect the interests of weaker
sections of society under Articles 15(4), 16(4) and 46, it is justifiable act
on their part to sub group the castes on the basis of their respective
population in order to allocate their respective entitlement. The list is
kept intact, and only the allocation is monitored on the basis of prag-
matic appreciation of facts. A distinction needs to be made between
disturbance of the list and allocation of the quantum of share.
Second, as per Article 38(2), “The State shall, in particular, strive
to minimise the inequalities in income, and endeavour to eliminate
inequalities in status, facilities and opportunities, not only amongst
individuals but also amongst groups of people residing in different
areas or engaged in different vocations.” This obligates the states to
subgroup the castes having different characteristics for the purpose of
avoiding hostile competition amidst them.
Third, as the nomenclature Scheduled Castes suggests, it is a list of
castes and not single caste. Because of different types of employments
undertaken by them or socio-economic position enjoyed by them or
because of different cultural background even going to the extent
of denying co-dining or marital relations amidst the castes listed as
Scheduled Castes, it is travesty of truth to treat them as a homogenous
class. It is true that they are broadly called as a class for the purpose
of Article 16(4) in cases like N.M. Thomas’*4. But this does not mean
that sub classification amidst them with due care and genuine pur-
pose is not permissible. Ramachandra Raju Commission’s depiction
of Scheduled Castes in Andhra Pradesh as conglomeration of hetero-
geneous groups having different abilities of competition in the matter
of access to jobs or educational institutions makes it comparable to the
situation of Other Backward Classes. In fact, OBCs are conglomera-
tions of castes or religious groups having the characteristics of inad-
equate representation in services. In Indra Sawhney case'* the Special
13 C.A. Rajendran v. Union of India, AIR 1968 SC 507; SBI Scheduled Caste/ Tribe
II v.
Employees’ Welfare Assn. v. SBI, (1996) 4 SCC 119: 1996 SCC (L&S) 911; Ajit Singh
Ishwara Bhat, Fundamenta l
State of Punjab, (1997) 7 SCC 209: AIR 1999 SC 3471, also see, P.
Rights (2004) at pp. 219-21.
a State of oaals v. N.M. Thomas, (1976) 2 SCC 310: AIR 1976 SC 490.
India, 1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1.
25 Indra Sawhney v. Union of
grouping of
Constitutional Bench of the Supreme Court allowed sub
orisation
OBCs into less backward and more backward, allowed categ
layer
with different quotas based on population and applied creamy
test to filter out the advanced individual members. Since the case was
not at all related to the position of SCs/STs, the Chinnaiah Court did not
deal with the matter in detail. Its obiter dicta about non-applicability
of creamy layer test to SCs/STs is to be understood as only a casual
observation rather than fact-based verdict. Since the social dimensions
of castes in general remain common in India at various sectors, it is
difficult to say that there remains homogeneity amidst SCs/STs and
heterogeneity amidst OBCs. Since all in the group cannot be elevated
simultaneously, differences do arise between the beneficiaries of reser-
vation and others in the group, or to put it more particularly, between
the forward and backward within the community.
Fourthly, competence of the mechanism for consultation of National
Commission for Scheduled Castes under Article 338 to serve the pur-
pose of ameliorating the interests of the Scheduled Castes cannot be
forgotten if we look to the objectives of these articles as analysed in
Milind'*6. Sidelining the importance of democratic policy making to
promote the objectives underlying Articles 15(4), 16(4) and 338 cannot
be regarded as complying with the well-established principle of har-
monious construction. Under Article 338, the National Commission for
the Scheduled Castes and-Scheduled Tribes has the power of investi-
gating and monitoring all matters relating to the safeguards provided
for the Scheduled Castes and Scheduled Tribes under the Constitution,
laws and government orders. It has the responsibility and power of
evaluating the working of safeguards, looking into the complaints
with respect to deprivation of safeguards and rights, and discharg-
ing the functions in relation to the protection, welfare and develop-
ment of the SC/STs. Keeping track of the major policy decisions of the
Central and State governments about the socio-economic development
of the SC/STs is another important function of this constitutional body.
Regarding the Andhra Pradesh policy, since the National Commission
had also applied its mind and interfered by giving guidelines in the
context of legislative action, proper appreciation of its role should also
be made instead of sticking to a rigid position relating to Article 341.
"6 State of Maharashtra v. Milind, (2001) 1 SCC 4 at p. 15, it was observed, “The
laudable object of the said Arts. (341 and 342) is to provide additional protection to
the members of the Scheduled Castes and Scheduled Tribes having regard to the
social and educational backwardness from which they have been suffering since a
considerable length of time.”
Towards
otidentifying the
ask a most
RIS deser
RS
ving beneficiaries
A il ld 501
11.73.2 Application of reasonable classification test
The Court started its reasoning froma major premise that all the castes
in the Schedule acquire a special status of a class and shall be deemed
to be a class. When there was already a classification for reservation,
further classification of the same class for the same purpose of res-
ervation was questionable. Citing elaborately from Triloki Nath Tiku
v. State of J&K"7, it was stated, “Mini-classifications based on micro
distinctions are false to our egalitarian faith and only substantial and
straightforward classifications plainly promoting relevant goals can
have constitutional validity. To overdo classification is to undo equal-
ity.” The hypothetical situation of classifying graduates on the basis
of marks as eligible for different positions (above 70 per cent for Chief
Engineers, 60 per cent alone for Superintendent Engineer etc) was con-
sidered to prove the absurdity in micro classification.
It is submitted, the question of overdoing of classification arises
either from total neglect of equality before the law, which is the twin
of equal protection of the laws guaranteed in Article 14 or from wrong
application of method of classification. In the instant case, neither of
the two can be found. Equality of opportunity for the deprived castes
within the Scheduled Castes created by state through inner compart-
mentalisation, in fact, puts the castes as equal before the law in the
context of reservation. Before examining the issue of erroneous appli-
cation of method of classification, it is essential to know whether there
exists need for classification. The Court’s apparent reasoning was that
once a classification was made for the purpose of reservation, further
classification was subversive rather than essential. It is submitted, this
is a difficult proposition to agree if we look to the factual details that
led to the enactment of the impugned legislation. The following analy-
sis of the Ramachandra Raju Commission Report will show that castes
included in the Scheduled Castes could not be regarded as homog-
enous bodies and that the actual operation and effect of reservation
policy did not promote the purpose of reservation of protecting the
weaker of the weakest.
Raju Commission report showed that Mala group, hailing from the
sector of agricultural labour, has established its superiority in com-
petition and got proportionately excessive benefits, putting the other
groups into severe constraints. The Relli group, because of its occupa-
tional background of belonging to sweepers and scavengers and very
less level of education, could not make a mark and put forward suffi-
tan-
cient competition. The Madiga group, whose profession consists in
ning skins and trading leather, have also lagged behind considerably
27 AIR 1969 SC 1: (1969) 1 SCR 103.

Caste, Law and Empo werment of the Back ward Classes
502 A REN A NOTE OT,
cit
e occupa-
in reaping the benefits of reservation. Adi Andhras, whos
do satisfacto-
tion is either agricultural labor or leather trading, could
these
rily well. On the whole, there has been no homogeneity amidst
cteristics.
groups in terms of economic, educational and social chara
Non-application of creamy layer test and filling up of backlog vacan-
cies have tilted the balance in favour of the powerful communities. To
say that they belong to one class is oversimplification. This goes to the
root of Supreme Court’s presumption that the Scheduled Castes con-
stitute one class for the purpose of reservation.
The issue of homogeneity needs to be looked from sociological
viewpoint. After five decades of protective discrimination policy at
various levels and sectors of public life continuously and seriously
practiced, a vantage point focus on its social impact and dynamics of
change demands attention. There is sure sign of upward social mobil-
ity of some strata leaving behind the rest still below poverty line. The
percentage of SCs below the poverty line was estimated at 64 per cent
in rural India in 1977-78 which declined to 53.1 per cent in 1983-4. In
urban India, the decline during this period has been from 543 per
cent to 40.4 per cent. According to Yogendra Singh, “An elite class
has now emerged in their (SCs) midst whose social base and numeri-
cal strength is larger than ever before. It commands very substantial
influence though it may have limited power.”** He views that their
incorporation in systems and institutions organised on cosmopolitan
lines rather than on caste or religion has put pressure on integrative
principles of a new Indian society, which is a product of norms and
values envisaged in the Constitution. It appears, the tasks of accommo-
dating the interests of the section of Scheduled Castes who could not
get reservation or other benefits hitherto, and elevating them above
poverty line should be adopted as a continuous process of welfare.
Micro classification is opposed by the Chinnaiah court by appre-
hending fragmentation of the class of SCs. It is submitted, this is a
false fear because once a conflict model of social reform by reserva-
tion is resorted to, its logical consequence of sensitising all the areas
and expunging the exploitations wherever it may prevail, should be
perceived. If the society believes that there is no reform without con-
flict, conflict is to be simply endured as an instrument legitimately
employable for a higher goal. Reservation as means to an end (social
justice) requires such a path. Justice S.B. Sinha’s reference to contem-
porary human rights discourse that draws line between policies of
oppression and measures designed to promote de facto equality is to
be appreciated in this light. Further, in the light of M. Nagaraj, which
* Yogendra Singh, Social Stratification and Change in India (Manohar, New Delhi
2002) at pp. 216-17.
Towards
a identifyingar
the most deserving beneficiaries
a 503
has insisted on existence of “compelling reasons” of backwardness
,
the issue of inner reservation needs to be considered afresh because
backwardness might also arise from unequal competition within the
Scheduled Castes.
The post-Chinnaiah development needs further watch. The Andhra
Pradesh legislature passed a resolution recommending to Parliament
to enact inner reservation law. There has been sympathetic considera-
tion on the request, although a law is yet to be enacted to overcome
the judgment’s objection about legislative incompetence. In Karnataka,
the Government has appointed Justice A.J. Sadashiva Commission to
look into discriminations arising within the Scheduled Castes because
of cornering of the advantages by the advanced sections among them.
11.73.3 The
Soeproblem of non-birth entry into caste or reservation cat-
Birth is a non-controversial basis for membership in a caste because

the social atmosphere that caste builds and the one in which the child
is brought up from the childhood days is likely to influence the growth
and competence of the child. An outsider’s entry into that sox ial group
atasubsequent stage by marriage, conversion or adoption might not be
envisaging Similar disadvantage, and on the other hand, might have
béen motivated by an idea justtograb the affirmative action benefit.
‘Kequisition stmesibership by marriage was initially conceded by
the Supreme Court as enabling the claim for contesting electionin
constituency reserved for Schedwléd Tribes, when élders-of the-tribe
accepted such member.”? But the Delhi High Court refused to apply
the principle in a case relatingto a high caste Hindu girl who married
a chamar (a SC) and sought reservation benefit on the basis of new sta-
tus.”° The Learned Judge came down heavily upon the practice of sham
marriages that defeat the constitutional policy." Similar approach was
adopted in several cases. In Valasamma Paul, a case relating to a Syrian
Catholic woman (forward category) who married a Latin Catholic
(backward class) and sought reservation meant for Latin Catholic, the
Supreme Court declined to. extend such benefit, and observed:
“The object of reservation is to remove the handicaps, disadvan-
tages, sufferings and restrictions to which the members of the Dalits or
Tribes or OBCs were subjected to and was sought to bring them in the
mainstream of the nation’s life by providing them opportunities and
29_NLE. Horo v. Jahanara Jaipal Singh, (1972) 1 SCC 771: AIR 1972 SC 1840.
130 Urmila Ginda v.Union of India, AIR 1975 Del 115. |
to marine the
31 Paramanand Singh criticises the judgment for its presumption flowing =
sham and for its failure to consider the social disabil ities
marriage as
in Upendra Baxi (Ed.), Law anc
such marriage. “The Scheduled Castes and the Law”
153.
Poverty (N.M. Tripathi (P) Ltd, Bombay 1988) at pp. 132,
504 Caste, Law and Empo werment of the Backward Classes
e
We ee e r
into Dalits, Tribes
facilities... Therefore, when a member is transplanted
the same handicaps, be
and OBCs he/she must of necessity also undergo
or sufferings
subject to the same disabilities, disadvantages, indignities
n.”
so as to entitle candidate to avail the facility of reservatio
Horo princi-
However, in the matter of reservation in election, N.E.
and
ple is applied ignoring the Valasamma ruling. Both in Lillykutty’
Sobha Hymavathi Devi", the factor of acceptance of marriage by the
husband’s family was examined; on the basis of facts, the claim was
found to be not established; and reservation benefit was denied. In
Meera Kanwaria v. Sunita™5, a case relating to claim of a Rajput woman
for reservation on the basis of false certificate that she was a daughter
of a person belonging to Scheduled Castes and was also married to
a Scheduled Caste person, the Supreme Court looked to the factor of
community’s non-acceptance in addition to the government circular
that declined to confer status of SC merely on the basis of marriage.
The Court nullified the election on grounds of false claim of reserva-
tion. The dichotomy between Horo and Valasamma approaches needs to re emNe Tete
be resolved by an objective approach and tléarer principle.***

The Supreme.Court has dealt the question of acquiring the member-
ship obschsduled Castethrough conversion by looking to the factor of
community’s acceptance. In Arumugam'’3? and Mohan Rao cases'®; the
Apex Court held that a person born of Christian parents could become
a member of SC on reconversion to Hindu fold, if the members of the
caste accepted him as belonging to their fold. Regardi optign by
Scheduled Caste parents as a basis for entitlement to reservation, in
Khazan Singh’ the Delhi High Court has approached from legalistic
‘perspective of adoption, TheCourtfessoned that once adoption isvalid,
even though the motive is for taking advantage o oophole in”the Taw
and is a measure of “career planning”, in view of future consequence
of adoption upon subsequent generation, it is appropriate to consider
the person as within the fold of the SC community. The community
acceptance theory was also not employed by the judge. The judicial
approach is criticised as allowing the transformation of loophole into
floodgate for unscrupulous people eyeing on state patronage.’°
2 Valsamma Paul v. Cochin University, (1996) 3 SCC 545: AIR 1996 SC 1011 at p 1022.
3 Lillykutty v. Scrutiny Committee, SC & ST, (2005) 8 SCC 283.
‘4 Sobha Hymavathi Devi v. Setti Gangadhara Swamy, (2005) 2 SCC 244.
18 (2006) 1 SCC 344: AIR 2006 SC 597,
K.N. Chandrasekharan Pillai, “Supreme Court on Caste Conversion and
Reservation” (2005) 47 JILI 540 at p. 543.
'°7 C.M. Arumugam v. Rajgopal, (1976) 1 SCC 863: AIR 1976 SC 939.
8 Principal, Guntur Medical College v. Y. Mohan Rao, (1976) 3 SCC 411: AIR 1976 SC
'9 _Khazan Singh v. Union of India, AIR 1980 Del 60.

'° B.N. Sampath, “Pseudo-Scheduled Castes: A Gift of Adoption Law” (1981) 23
a 505
It can be inferred from the above that the judiciary is, by and large,
favouring social mobility transcending the caste distinctions along
with avoidance of frauds.
11.73.4 Application of creamy layer test to SC/ST _

The need for objective determination of the really needy persons was
realised in Indra Sawhney case in the context of Other Backward Classes.
Pointing out the need for common traits for members of the same class,
B.P. Jeevan Reddy, J. explained the rationale behind the test, “If some
of the members are far too advanced socially (which in the context,
necessarily mean economically and, may also mean educationally) the
connecting thread between them and the remaining class snaps. They
would be misfits in the class. After excluding them alone, would the
class be competent class.” The argument of group backwardness could
not be stretched to include the really advanced members within the
backward class. However, it was observed within parenthesis, “This
discussion is confined to Other Backward Classes only and has no rel-
evance in the case of the Scheduled Tribes and Scheduled Castes.” The
implication of this observation is that theCourhad
t not decided about
the“application ofthe testtoSC/Sas Ts the case was relating to OBC
only: This is quite in accordance with the Court's practice not to decide
beyond Whatis eSsential for determination of the case at hand, and the
case was relating only to OBCs. What is important is that the Court
was ruling that the structure of equality could not survive without the
concept of creamy layer test. This has ramification of social justice.
The Supreme Court in M. Nagaraj ruled that the Scheduled Castes
and Scheduled Tribes were particular species of common genus “back-
ward class of citizens which in the opinion of the State, is not adequately
represented in the services under the State.” The approach in Indra
Sawhney was taken in support of this proposition.’ The logical fall out
of this approach is reflected in the conclusion, which states as follows
about the impact of the impugned constitutional amendments:
JILI 596 at p. 599.

41 The Court cited with affirmation in para 803 in Indra Sawhney case, There
is another way of looking at this issue. Article 16(4) recognises only one class viz.
“backward class of citizens”. It does not speak separately of Scheduled Castes and
Scheduled Tribes, as does Art. 15(4). Even so, it is beyond controversy that Scheduled
Castes and Scheduled Tribes are also included in the expression “backward class of
citizens” and that separate reservations can be provided in their cares is a eas
It is that i
accepted phenomenon throughout the country. What is the logic behind it?
are lumped together,
Scheduled Tribes, Scheduled Castes and Other Backward Classes
eee
OBCs will take away all the vacancies leaving Scheduled Castes and Sass
between more bac ee
high and dry. The same logic also warrants categorisation as
this Sse be done.
and backward. We do not mean to say—we may reiterate—that
impermissible in law.
We are only saying that if a State chooses to do it, it is not
506 Caste, Law and Empowerment of the Backward: Classes
rements, namely,
“They do not obliterate any of the constitutional requi
concept of
ceiling-limit of 50 per cent (quantitative limitation), the
een OBC
creamy layer (qualitative exclusion), the sub-classification betw
in Indra Sawhney,
on one hand and SCs and STs on the other hand as held
acement as
the concept of post-based Roster with in-built concept of repl
held in R.K. Sabharwal.”
The Court also observed:
“We reiterate that the ceiling-limit of 50 per cent, the concept of
creamy layer and the compelling reasons, namely, backwardness, inad-
equacy of representation and overall administrative efficiency are all
constitutional requirements without which the structure of equality of
opportunity in Article 16 would collapse.” (emphasis added)
It is submitted, the high standards of objective and necessitating

factors (note the words emphasised) insisted by the Court reflect
the overall thrust for channelising the reservation benefit exclu-
sively to the deserving class and persons. While the Court held
the creamy layer rule as persisting without any obliteration, its
reference in the same breath to the sub-classification of BC into
OBC, SC, and ST as continuing as laid down in Indra Sawhney
keeps the issue of applying creamy layer test to SC/ST still open
and unresolved. But the “compelling reasons” approach necessi-
tates its application to their domain. The proposition that creamy
layer rule itself is part of the constitutional scheme and applica-
tion of secularism as laid down in M. Nagaraj and Nair Service
Society is all the more persuading for its application even regard-
ing SC/ST. In Ashoka Kumar Thakur the majority of the judges
abstained from deciding about the issue as the matter was not
before the Court. However, K.G. Balakrishnan, CJ. considered
that in view of sole power onthis matter being vested with the
Parliament under Article 341 its application to SC/ST was not per-
missible. The learned judge observed, “Right from the beginning,
the Scheduled Castes and Scheduled Tribes were treated as a sep-
arate category and nobody ever disputed identification of such
classes. So long as ‘creamy layer’ is not applied as one of the prin-
ciples of equality, it cannot be applied to Scheduled Castes and
Scheduled Tribes. So far, it is applied only to identify the socially
and educationally backward classes. We make it clear that for the
purpose of reservation, the principles of ‘creamy layer’ are not
applicable for Scheduled Castes and Scheduled Tribes."
‘2 Para 162, Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1; for elaborate
discussion of the case see, Anirudh Krishnan and Harini Sudersan, Law of Reservation
and Anti-Discrimination (Lexis Nexis Butterworths and Wadhwa, Nagpur 2008).
Towards identi
Ne fying Sl the most deserving beneficiaries
SR SLES Dl i aa 507
In US, the judicial approach of strict scrutiny for affirmative action
has envisaged objective determination of the beneficiaries. Reaffirming
the majority ruling in Bakke’, the Croson"44 majority noted that strict
scrutiny is necessary to ensure that allegedly benign classifications
are not “in fact motivated by illegitimate notions of racial inferior-
ity or simple racial politics.” In Adarand‘3, it was observed that the
racial classifications including those with affirmative purpose are
_constitutional only if they are narrowly tailoréd measures that further
compelling governmental interests. This was reiterated in Grutter v.
Bollinger'#* with a small modification of Bakke to the effect that not only
for eliminating the evils of past discriminations but also for attaining
diverse student body, affirmative action may be launched. In Grutter,
the Supreme Court said, “The purpose of the narrow tailoring require-
ment is to ensure that the means chosen fit the compelling goal so
closely that there is little or no possibility that the motive for the clas-
sification was illegitimate racial prejudice or stereotype.” The Court
favoured a view that the entity adopting the remedial scheme must
have a strong basis in evidence to conclude that remedial action was
necessary before it embarks on an affirmative action programme.’ As
a part of this inquiry it becomes inevitable to examine whether the
particular group or person is suffering from such a serious disadvan-
tage that the benefit of benign action shall be extended to them. The
Court's insistence on serious and good faith consideration about race-
neutral alternatives, avoidance of undue burden on the disfavoured,
and fixation of 25 years duration after which the race-conscious benign
programmes shall cease to continue point out overall framework for
objective standards. As a result, the infirmity of over-inclusion (inclu-
sion of persons who do not deserve to be included in the category) and
under-inclusion (non-inclusion of persons who deserve to be included)
need to be eliminated in the application of equal protection clause
even in the sphere of affirmative action."
43 Regents of the University of California v. Bakke, 438 US 265 (1978).

144 City of Richmond v. J.A. Croson Co., (1989) 488 US 469.
45 Adarand Constructors Inc. v. Pena, (1995) 515 US 200; the judgment had overruled
Metro Broadcasting, Inc. v. FCC, (1990) 497 US 547 which had upheld relaxed standard.
46 156 L Ed 2d 304: 539 US 306 (2003); in this case the Court had upheld the
University of Michigan Law School’s race-based admission policy on the ground that
the Law School has a compelling interest in attaining a diverse student body.
47 Ibid, at p. 2341.
gi wee had been expressed in Shaw v. Hunt, 517 US 899 (1996) at pp. 909-
see, for discussion Allan
10; City of Richmond v. J.A. Croson Co., 488 US 469 (1980) also
(3rd Edn., Aspen
Ides and Christopher N. May, Constitutional Law: Individual Rights
w York 2004) at pp. 220-31.
fe ge uae of Tapeless see, Yick Lee v. Hopkins, 118 US 356 cee) sahil Ak
US 252 (1977); Washington v.
Heights v. Metropolitan Housing Development Corpn., 429
ward Classes
508 d Back
Caste, Law and Empowerment of the
1976 has incorpo-
In the United Kingdom, the Race Relations Act,
caution. As per
rated the policy of protective discrimination with due
a particu-
Section 35 of the Act it is not unlawful to afford, “persons of
al needs
lar racial group access to facilities or services to meet the speci
wel-
of persons of that group in regard to their education, training or
fare, or any ancillary benefit” (emphasis added). According to Lord
Scarman, “Certainly, special programmes for ethnic minority groups
should only be instituted where the need for them is clearly made out.
But need must be the criterion, and no other.”
Sociologists have supported general application of the creamy layer
test to identify all the reserved categories. According to Andre Betteille,
“It is now becoming increasingly clear that in seeking todo justice to
castes Or communities we might deny justice to individuals, for we
“cannot any longer pretend that all or most or even many of the needs
of the individual will automatically be taken care of by his caste, once
the status of that caste is enhanced. The ends of justice are hardly met
es Pe
policy under the Constitution resulting in emergence of elite class inte-

grating into cosmopolitan world and shift of economic and political
power as a result."5* Since social integration with elevation is an ongo-
ing phenomenon, it is desirable that those who have not integrated
shall be exposed to the pi ocess of integration through empowerment
policy. Upward mobility. of the society depends much upon restruc-
turing within the society to suit to the dynamism of empowerment
approach. Humayun Kabir, a statesman of postcolonial era, had com-
pared the reservation policy to the protection given to infant industry
wherein the special treatment shall phase out along with the acquisi-
tion of innate strength.%? Genuine need, and that alone, is the justifi-
cation for artificial help in competitive world. According to Dipankar
Gupta, “In terms of finessing reservations so that the policy is just
and fair and is not easily shot down by its detractors, it is necessary
that the ‘creamy layer’ among the SCs and STs be taken off the list. If
these positions are blocked in perpetuity by those families that have
Davis, 426 US 229 (1976).

'° Report on the Brixton Disorders 10-12-1981; Riyat v. London Borough of Brent I.D.S.
(1984) 28 Emp Law Handbook 57.
'!' Andre Beteille, The Idea of Natural Inequality and Other Essays (Oxford University
Press, New Delhi 1983, 2003) at p. 127.
'2 Yogendra Singh, Social Stratification in India (2nd Edn., Manohar, New Delhi
2002) at p. 217.
'° Humayun Kabir, Minorities in a Democracy (Firma K.L. Mukhopadhyay, Calcutta
1968) at p. 49.
ce
c ce hien 509
succeeded in coming to the top, when there is no room for
further
upward mobility among SCs and STs who have not been as fortu
nate
so far.>* There is also an opinion that once a reservation benefit
has
been already claimed and got by a candidate even belonging to SC/ST,
such candidate shall be disqualified from claiming reservation ben-
efit in his career.55 Exclusion of socially advanced persons or families
from the category of backwards resolves the problem of over-inclusion.
As Andre Beteille observed, “This society made a terrible mistake in
thepastipbsliaving that merit‘wasan attrnot
ib Ofti
indivte
iduals but
of groups, that being borna Brahmin was in itsélf a mark of merit. We .
Sheff].make the’same*kind of mistaké if we act on thé belief that need
too isalways, and not just in special cases, an attribute of groups rather
thar’of individuals.» |
11.7.4 Role of National Commission for Backward Classes

The problems of wrong inclusion and non-inclusion of any class of
citizeftsvin the lis of Backward Classes are dealt by the National
Commission for Backward Classes. The National Commission. for
Backward Classes Act, 1993 was enacted to constitute this body’” in
responeete the direction given in the Indra Sawhney judgment. Under
Section aU)ofthe Act, the function of the Commission is to examine
the requests for inclusion of any class of citizens as a Backward Class
in the Weisand hear complaints of over-inclusion and under-inclusion
and tender such “advice to the Government as it deems appropriate.
The adviceofthe Commission shall ordinarily be binding upon the
Central Government [Section 9(2)]. At the expiration. of three years’
from the enforcement of the Act, and after every succeeding period of
1o years’ thereafter, the Government is bound to revise the lists in con-
sultation with the Commission with a view to exclude therefrom those
classes who have ceased to be Backward Classes, or for includin in
such lists new Backward Classes (Section 11). Thus, backwardness 1s
not a fixed status. Its determination is based upon factual situation,
which varies along with social transformation. Its objective determina-
tion is a responsibility upon the NCBC.
'54 Dipankar Gupta, “Limits of Reservation” (May 2005) 549 Seminar 22atp24. —
85 CB. Raju, Social Justice under Indian Constitution (Serials Publication New Delhi
2006) at pp. 211-12.
'56 Andre Beteille, supra, n. 151 at p. 129.
57 The Commission consists of the following members nominated by the Central
Government: a Chairperson who is or has been a Supreme Court or High Court
Judge; a social scientist; two persons having special knowledge in matters relating
to Backward Classes and a member secretary (S. 3). It is a quasi judicial body, and
submits annual report to the Central Government.
510 and Empowerm
Caste, Law aga ent of the Backward Classes
an a ac e R
Bharatpur and
In October 1999, the Jats of Rajasthan (except in
OBC on the basis
Dolpur) were listed by the Central Government as
rs, who had
of recommendation made by the NCBC in 1997. The Gujja
their oppor-
been already listed as OBC, feared about deprivation of
a with the
tunity because of the compulsion that they share their quot
s.**
Jats, agitated in 2007 for inclusion of them in Scheduled Tribe
11.7.5 Thoughts about time limit for curing the side effects
In ABSKS case it had been observed, “The success of State action under
Article 16(4) consists in the speed with which result-oriented reser-
vation withers away as, no longer a need, not in the ever widening
and everlasting operation of an exception [Article 16(4)] as if it were a
super Fundamental Right to continue backward all the time, To lend
immortality to the reservation policy is to defeat its raison de etre; to
politicise this provision for communal support and party ends.is to
siibvert the solemn undert aking-6f Atticle “reserva-
16(1), ato casteify eee
OR = ;
tion “even beyond the dismal groups of backward. most people, euphe
mistically described as SC & ST, is to run a grave constitutional risk.
Caste, ipso facto, isfot Class ina “Secular State.” After analysing the
case law development pressing for respecting considerations of merit
and aim of establishing casteless society, Arijit Pasayat and Thakker,
JJ. observed in Ashok Kumar Thakur, “...the interest of no person, class
or region can be higher ttan that of the nation. The philosophy and
pragmatism of universal excellence through equality of opportunity
for education and advancement across the nation is part of the con-
stitutional creed. It is, therefore, the best and most meritorious stu-
dents that must be selected for admission to technical institutions
and medical colleges and no citizen can be regarded as outsider in
the constitutional set-up without serious detriment to the ‘unity and
integrity’ of the nation.” Hence, they suggested for periodic review
akout desirability of reservation for specific castes once in five*years’.
According toDalvéer Bhandari, J, “If reservation in education is to stay,
it should adhere to a basic tenet of Secularism: it should
not take’caste
into account. As long as caste is a criterion, wewill never achieve a
casteless society. Exclusively economic criteria should be used. T urge
the Government that for aperiod of 10 years’ caste and other factors
such as occupation/income/property holdingsor similar measures of
economic power may be taken into consideration and thereafter only
economic criteria should prevail; otherwise we would not be able to
achieve our constitutional goal of casteless and classless India.” While
Raveendran, J. favoured a time limit for caste-based reservation, the
88 V. Venkatesan, “Jats as OBCs” Frontline, 10-8-2007, at p. 91.

Propriety of caste-based quota
=eb en en tlalan eee 511
Learned Chief Justice was not inclined to quash the measure
for want
of time cap; but suggested for review once in 10 years’. The view
initi-
ated in K.C. Vasanth Kumar about time cap has attained currency agai
n
to cure the evil of caste based reservation.
11.8 Propriety of caste-based quota in non-governmental

educational institutions and Private Sector
Demand for spreading the reservation policy into non-governmental
educational institutions and private sector has given rise to some consti-
tutional development. ARO) has been added by aconstitutional
amendment, providing for state’s _powér, notwithstanding Articles
15 and_19(1)(g), {6make special provision for the advancement of the
interests*ef SC/ST or SEBC in the matter ofadmission to any private
edutational institutions, other than minority educational institution,
whether getting grants from government or not. While the expensive
character of professional education and lopsided educational devel-
opment have indirectly excluded the Dalits from these opportunities,
this amendment is said to provide opportunities through procedural
justice and convert them into real assets.’? The constitutional validity
of this amendment was challenged before the Supreme Court on the
ground that it is violative of basic structure of the Constitution. The
Constitutional Bench of the Supreme Court issued temaporary injunc-
tioron the operation of the provision and governmental notification
of caste based quota in the matter of admission. The, judgment was
rendered in April 2008.touching only upon educational institutions
established or aided by the State other than minority educational insti-
tutionis-tin 30(1),Regarding them, it was upheld as conform-
Articleder
ing to basic structuré of the Constitution, and the question of its appli-
cation to unaided private“institutions was not decided as the matter
was not argued upon by the private educational institutions. The
Court deferred the matter to be decided in appropriate future case.
However, D. Bhandari, J. observed, “Unaided entities, whether they
are educational institutions or private corporations, cannot be regu-
lated out of existence when they are providing a public service like
education. That is what reservation would do. That is an unreasonable
restriction. When you do not take a single paisa of public money, you
cannot be subjected to such restriction.”™
There are either promises or pressures in political circles for intro-
ducing reservation policy in private sector. With the growth of IT and
‘59 Gopal Guru, “Corporate Class and its ‘veil of ignorance’ in (May 2005) 549
Seminar 36 at p. 40.
16 Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1.
161 Ibid, para 132, per Dalveer Bhandari, J.
Caste, Law—and Empowerm—ent of the Backward Classes
512 — e r
—
O O
d compa-
BT sectors and flourish of multinationals and Indian liste
in these
nies, reservationists are aiming their sight at high-end jobs
able is
spheres. State’s power of making infrastructural facilities avail
on to pres-
some times relied upon for seeking governmental interventi
vol-
surise the private sector to follow reservation policy. Instances of
untary efforts of the industries in the United States to diversify their
workers’ composition by including the persons belonging to black race
have been cited in support of the demand. Protagonists of reservation
in private sector claim that for reducing economic discrimination, for
promoting equitable economic growth, for securing the tenure of Dalit
workers and for minimising the potential conflict, reservation is essen-
tial. It is also argued that with the growth of privatisation, the arena
of public sector is reduced, and the scope for special provision for the
backward classes is also narrowed down.’
Arguments against caste-based reservation quota in private sector
are several: (i) Freedom of business, trade and occupation is a personal
freedom with potentiality to make profit. In order to ensure efficiency
and profitability in their unit, private employers need to have auton-
omy in the hire and fire policy subject only to labour welfare regu-
lations. In the era of Privatisation, Liberalisation and Globalisation,
high level of performance cannot be maintained in the private sector
without a flexible system of job contracts."** Quotas in private sector
would mean that there will be less freedom to the company owner
to dislodge the non-performing employees and rectify the errors of
recruitment or to decline to recruit except through his network of test-
ing, probation and training.’® (i) In private sector, unlike in the serv-
ices of government, work practices and norms are oriented to perform-
ance rather than seniority and permanence of tenure. They rely upon
contract rather than status. As Andre Beteille has viewed, “The quota
mentality has taken deep roots in India since independence, and it has
been serious obstacle to economic development and social progress.
Quotas in private sector employment are bound to give rise to strains
in the economic as well as the legal systems whose consequences are
likely to be far-reaching.”"® (iii) Caste based categorisation of benefici-
aries is not relevant to identify the deprived sections in the economic
field. Historical exclusion of communities from political power is not
2 Sukhdeo Thorat, “Why Reservation in Private Sector is Necessary?” in (May

2005) 549 Seminar 30 at p. 32.
1 Tbid.
a Andre Beteille, “Matters of Right and Policy” (May 2005) 549 Seminar 17 at
p. 20.
'° Dipankar Gupta, supra, n. 45 at p. 24.
_ 66
Andre Beteille, supra, n. 151 at p. 20.
Conclusions
513
the same as exclusion from economy.'®” Social justice in the
economic
sector needs to address new forms of exclusion instead of
concentrat-
ing on traditional ritual status disabilities. Minorities, wome
n and the
poor have economic difficulties irrespective of their caste differences,
and need to be given adequate support.
11.9 Conclusions
While caste division of the Indian society had created social hierar-
chy and obstructed social mobility, the humanists and social reform-
ers looked to the aspects of equal human worth and dignity and con-
demned social inequality. The deprivation and exploitation arising
from caste differentiation have been responded.b y the legal system
with preventive and curative approaches, true to its commitmentto
the sone SF social justice and equality. Prohibition of the practice of
untouchability is both constitutional policy and serious commitment
through strong legislative framework to spearhead social transforma-
tion. The trend of development is towards establishing a highly activ-
ist legal measure to deal with the problem of segregation. This has
yielded good result, although the measure is not a fait accompli.
Affirmative action as a means of empowerment and an instrument
of social justice has taken multiple forms and has been employed by
various levels of government with region-specific political policy deci-
sions. There is considerable change in the composition of the service
sector, and the marginalised sections have better representation in
this sphere."® With the growth of society, the features and charac-
teristics of the beneficiaries and of the categories of reservation also
undergo change. However, objectivity has suffered when prejudice,
favouritism and mere political consideration are mixed with policy.
Exclusion of persons or families who got reservation benefit or of
persons who merged with the forward sections by becoming creamy
layer from the advantages of affirmative actions would help in chan-
nelising the benefits to the weaker of the weakest. Extension of Indra
Sawhney principle on this matter to Scheduled Castes and Scheduled
Tribes also is required. Instead of treating reservation as the be all and
end all of affirmative action, the long-term effect of reservation should
be analysed; the need for actual empowerment of the weaker section
167 DL. Sheth, “Considerations for a Policy Framework” (May 2005) 549 Seminar
62 at p. 64. . :
168 Jt should be remembered that as a consequence of reservation policy during
last 57 years’, the percentage of Dalits in Grade I posts has increased from 1 per cent
at the dawn of Independence to 12 per cent at present, and before long it will reach
17 per cent. In lower Grades there is better representation and in Grade IV there is
overrepresentation.
by infusing the strength for competition should be realised; and the

direction of development should be towards minimising the depend-
ence on caste factor for identifying the beneficiaries.
As was rightly put by Sarvajna, a sixteenth century visionary of
Karnataka,
“The light of the home of a man of despised caste,
Is it despicable? Speak not of this caste or that.
He whom God loves alone is of a noble caste.”
CHAPTER 12
CONSTITUTIONAL POLICY
AND DEVELOPMENT TOWARDS
GENDER JUSTICE
12.1 Introduction
As distinct from sex, which is a personal biological factor.based on

nature, the imageof “gender surpasses mere distinction between
women~and men and téprésénts socio-@conomic, cultural and psy-
cholo gical fattors that make one class strong over the other* Gender
stands for characteristics obmsn al women=Whuch ate Sociallydeter-
mined rather than bi identi fied.Ttdeterminesthe sociaMele,
accé$s to Opportunities, entitlement to resources for these two catego-
ries of persons and builds cultural implications upon them. In practice,
it generates biases in favour of men and against women in relation to
work, sharing of benefits, enjoying of human rights, and following of
tradition.
The concept of gender justice implies a comprehensive goal _and
ofsubordinated gender from the exploi-
schemeof protecting the class
tations and denials inflicted by the dominant gender. In particular, it
means that women must exercise full participation in decision-making
process in all walks of life, and fully share opportunities with men in
finding equitable and practical solutions to issues in the family and
and:
1 For detailed differentiation between gender and sex, see, B.K. Nagla, “Sex
Avasthi and A.K. Srivasta va (Eds.), Modernit y,
Gender: Cognitive Analysis”, Abha
(Rawat Publicat ions, Jaipur 2001) at pp. 131, 136-68.
Feminism and Women Empowerment
determined
Ann Oakley and other writers used the word gender to mean socially
characteristics in 1970s.
ConstitutionalSEPolic y and Deve lopment Towardsa Gender Justice
516 ie ROMA I o
i aaa
traditional role by
society.” It deviates from stereotyping of women’s
male’s determination; espouses a philosophy that regards all people
ess of
as essential agents of change; and views development as a proc
are rights-
enlarging the choices of both sexes. It believes that women
men. —
bearing, autonomous human beings without difference from
brunt ool
‘Historically, women had the unfortunate fate of bearing the
discriminations in all spheres of life. Access to good things of life like
education, employment, property and opportunity to participate in
social and political life, on a footing equal to that of men, were denied
to them. Even now, dismal picture continues in some spheres. But, in
house keeping, in child bearing/caring and in the upkeep of family’s
spirit and ethos, their responsibility is practically exclusive. However,
their biological characteristics, while essential for continuity of human-
kind, often are the factors that face male aggression. Developments in
reproductive technology have been rampantly abused for female foe-
ticide. There is also fear about abuse of cloning technology. With the
increase in sexual offences and harassments against women, the need
for théir security through law is very much felt.
Igis Marion Young conceptualises gender justice as_an aspect of
social justice, which essentially means “elimination of institutional-
ised dominatioand n oppression”? She goesbeyon the d distributive
models of power, rights, opportunity and self-respect, and focuses on
issues of decision making, ¢vision of labour and culture for a social
condition that enables wornen’s equal participation in these spheres.
Differing from other feminists who advance “sameness” approach,
she argues for recognition of difference between male and female and
for employing of appropriate strategy to deal with oppression that
result from tyranny and “everyday practices of well intentioned lib-
eral democracy”.t A process-oriented understanding of society and its
decision-making structure, with a moral imagination, is required to
disarm the domination and oppression that inflict injustice.
An attitudinal and all round changes to offset the trials and travails
of women can be engineered, to some extent, by the lega! system as
it has the competence to influence the human behaviour. 3eing fun-
damental law of the land, constitutional law operates to inspire, con-
trol and compel the ordinary legal norms towards compliance with
its enshrined values. Since the Indian Constitution has explicit meas-
ures for attaining gender justice, the flourish of constitutionalism has
necessarily contributed towards empowerment of women. While the
? Anil Dutta Mishra, “Gandhian Approach to Gender Justice” in Anil Dutta Mishra
(Ed.), Challenges of 21st Century (Mittal Publications, New Delhi 2003) at pp. 254, 257.
> Tris Marion Young, Justice and the Politics of Difference (1990) at p. 15. MDA Freeman
(Ed.), Lloyd’s Introduction to Jurisprudence (7th Edn,).
* Ibid, at p. 41.
Notions of gender justice in feminist jurisprudence 517
ap GPRS Ra 068 tec aaa
idea of affirmative action for women’s uplift was in a pioneering stage
and unique in 1950, its growth and impact during the last six decades
can be assessed with reference to some of the standards developed in
feminist jurisprudential thoughts and with Constitution’s own basic
values.
12.2 Notions of gender justice in feminist jurisprudence

The legal status of woman is largely influenced by the social..posi-
tion She“enjoys in contemporary world. Although law is relatively an
autonomous instrument, societal willingness to receive the message of
legal reform or the congruence between substance of law that touches
intimate aspect of life and culture of the community determines the
extent of success of law. Aristview otle’ fitte
s is more
that male todrule
than female® or Bacon's proposition that thehusband hath by law the
power and dominover
ion Wife, and may mildly beat her®, reflected
the v
sh ead chose ie Et from the twilightof civilisation
women, children and slaves were subjugated by men had influenced
legal norms also. The 2divide |
between the public and private sphere
and allocation ofthe former {fomen and the latter towome
hadnren-
dered women invisibletothe law, asviewed
by Hilaire Barnett? Social
Contract theorists did not put forward gender equality in decision-
making opportunities. The theory of unity of flesh with marriage
recognised husband’s power over the person and property of wife.?
So long as patriarchy ruled, legal stance on practicesof prostitution,
pornography and sexual crimes or onmatters of marriage, property
and economic relations exhibited malenessof law.” Devoid of power
in public-sphere-as wells at’ home, she had to wait for unlocking the
doors of public world through agitations, by entry into workplace or
for the dawn of reforms." For a life of dignity, that was the lone ave-
nue. ©
Responding to the challenges of patriarchy, feminism with different
shades of thinking—liberal, radical, and cultural—emerged in juris-
tic writing. The Age of Enlightenment brought to center, the concepts
of rationality, individual choice and equal rights and opportunities.
5 Aristotle, The Politics, TA Sinclair (Tr.), (Penguin Book, London 1962) at p. 125.
6 Francis Bacon, Abridgement of the Law (1736). ee
7 Hilaire Barnett, Introduction to Feminist Jurisprudence (Cavendish Publishing,
London 1998) at p. 65.
® Ibid, at pp. 110-16.
° Ibid, at p. 35.
n. 7
For narration of the British experience, see, Hilaire Barnett, supra,
life, absence of
1 Non availability of right to vote and participate in’ public
See, Hilaire Barnett,
independent property right for women had caused such a position.
supra, n. 7 at pp. 64-65.
518 Constitutional Policyditaand Development Toward s Gender Justice
St ee cana ibn Sla h SA,
men
Evolved in this context, liberal feminism believed that women and
were rights-bearing autonomous human beings with equal opportu-
nity to make rational and self-interested choices.'* However, liberal
feminists had the predicament of arguing against the views of male
liberal scholars like Hegel or Rousseau who glorified tenderness and
motherhood amidst women denying them political power. While it is
possible to view within H.L.A. Hart's concept of minimum content of
natural law some scope for accommodating sympathetic response to
human vulnerability, in Ronald Dworkin’s* analysis of principles that
underpin rights, the elements of justice, fairness and morality, rather
than mere social expediency, are discernible. But pro-woman approach
Rawls’
has not been explicit in the writings of nosifive Hberalscholars. 1
concept
of justice works through conferring maximum benefits to the
least advantaged sections of the society in case differentiation is indis-
pensable.** Although apparently this looks as handmaid instrument
for woman’s welfare, this has not been so as considered by feminists
because of clear gender neutral language used by Rawls.’7 Still, it is
possible to gather support from the essential principles propounded in
Hart-Dworkin-Rawls line of thinking for pro-woman approach.
The core liberal feminists like Ruth Bader Ginsberg, and Wendy
Williams resort to rational scrutiny analysis of gender discrimina-
tions and argued against unequal opportunities and unequal pay for
women in public spheres."* In Reed v. Reed"*, the American Supreme
Court, while quashing an idaho statute that provided TotMandatory
preferenceofmen to women in case of equal claim, asarbitrary_and
violative of equality clause the Ginsberg view applied. According to
Wendy Williams, belonging to a sex is pre requisite for application of
anti discrimination law’s protection, and hence, the male-female clas-
sification is both discontinuous and complementary.” She preferred
* Hilaire Barnett, supra, n. 7 at p. 96. Mary Wollestonecraft, Vindication of Rights of
Women (1792) argued that lack of rights for women was equal to denial rights to slaves
and that if women were inferior to men by nature, their virtues must be the same as
it had eternal standard.
" G. Hegel, Philosophy of Right, Knox (Tr), (OUP, Oxford 1952) at pp. 165-66;
Rousseau, JJ., Emile (1762) Bloom (Tr.), (Penguin, Harmondsworth 1991) at p. 450.
4 HL.L.A. Hart, The Concept of Law (OUP, Oxford 1961) Chs. 1 to 4.
"Ronald Dworkin, Taking Rights Seriously (Duckworth, London 1977) at pi22.
© John Rawls, A Theory of Justice (OUP, Oxford 1972) at p.139!
” Hilaire Barnett, supra, n. 7 at pp. 112-13 citing the views of M. Mastuda, Moller
Okin and D. Kearne.
'* Patricia A. Cain, “Feminism and the Limits of Equality” (1990) 24 Georgia Law
Review 803; Ruth Bader Ginsberg, presently a Judge of US Supreme Court, in her
writings and pleadings in Reed had put forward rationality, individual choice, equal
rights and opportunities as the basis for women’s claim against discrimination.
404 US 71 (1971).
” Wendy Williams, “First Generation” (1989) U. Chi. Legal F. 99 at pp. 105-06,
Notions of gender justice in feminist jurisprudence
SUAS. eeestaseae stai ns OEE a 519
td,
equality on the basis of similarity between the sexes to special
treat-
ment on the basis of sexual differences. There is a criticism agains
t
liberal feminist approach thatit isshortsighted because assimilationist
theory of equality would benefit women only if they acted like men.”
SSP ae focus on women as a class that is dominated by
another class viz. men, look to the differences between women and
men that contributed to inequality, and assert for anti-subordination
approach to overcome maleness of law. Going beyond arguments of
ee ns _of
societand
y law, and’deeply
criticise patfiarchic culture and mores. For example, they regard that
law on rape, by looking to the factor of woman’s consent, undermines
the reality of male aggression.» Prostitution law, by avoiding only
commercialisation of the service of sex workers, treats women only
as sex objects. Pornography law ignores the following aspects: abuse
of women in pornography production industry, treatment of women
as objects of bodily pleasure and incremental consequence of pornog-
raphy on sexual crimes; but only focuses on protecting the pornogra-
phy consumers from depraving and corruptive influences.”3 Catharine
pene UO Cespearheaded radicalfeminism by voicing, “Difference
fs the velvet glove on the iron fist of dominance.” She locates real
issue in male power and dominance. Women’s poverty due to lackof
opportunities, violence against women, pornography and prostitution
are uniquely female experiences because lacof k ofpowe on their
r part.
MacKinnon considers equality question as a question of distribution of
power. The key to power in society should be coveted by dismantling
difference strategy, and by real empowerment ofwomen on their «own
terms without men as referentStandard. For maintaining social power,
one should first structure reality unequally, and then require that enti-
tlement to alter it be grounded on lack of distinction of situation.* The
silenced voice of women could be made audible by taking off the feet
that coerce women’s necks. Christine Littleton, another radical femi-
nist, argued for reconstructing the concept of sexual equality by recog-
nising women’s difference from men, her identity and specificity.” For
extracted in MDA Freeman, supra, n. 3 at pp. 1150-51.

21 Martha Minow, “Beyond Universality” (1989) U. Chi. Legal F. 99 at pp. 127-28.
2 Hilaire Barnett, supra, n. 7 at pp. 279.
3 Ibid, at p. 292.
% Catharine MacKinnon, Towards Feminist Theory of the State (Harvard UF,
i ass 1989) at p. 8.
se ae tec Feminism Unmodified: Discourse on Life and Law, 1987
i DA Freeman, supra, n. 3 at p. 1183. j .
ia L. Rev.
Pee aatine Littleton, ReLonswidling sextalEquality” (1987) 75 Californ
beings, whether perceive d or real, and ae
1274. The difference between human
not be permitte d to make a differenc e in the
biologically or socially based, should
lived-out equality of those persons.”
520 Constitutional Policy and Development Towards Gender Justice
example, maternity benefit law accepts women’s difference as basis for

special treatment. apts
Cultural feminists consider that_women, because of their differ-
ent life experiences, are more caring, more relation-conscious, and
have distinct.moral_vision. According to.them, women’s essential
connectedness with children and family members shouldbe. prop-
erly respected, and law should support woman-valued relationship.”
Mandatory pregnancy and female infanticide go against women’s inti-
mate choices. Robin West of this school of thinking viewed political
and conceptual barrier as the greatest obstacle to women’s freedom.
She said, “Feminist must first and foremost counter a profound power
imbalance, and the way to do that is through law and politics.”
From the above discourse on feminism, it can be gathered that
the problem of gender injustice is a deep-rooted social malady aris-
ing from power imbalance that occurred dueto conversion.of factors
of difference into instruments of dominance by males. Undoing the
dominance can elevate ethical content of the legal system. Discarding
the public/private dichotomy in order to empower women in both the
spheres becomes essential. Raising the women question and arousing
women consciousness are to be the initial strategies while a compre-
hensive approach of gender equality, anti-subordination and fair rela-
tionship centering around women should spearhead gender justice.”
The generally worded schemes of justice can provide some parameters,
whereas launching a special measure for gender justice with mecha-
nisms for empowerment of women does become inevitable. From a
feminine perspective, a pro-woman policy should make way for right
for the following reasons:
(1) women as incomplete agents in democratic participation are
likely to be marginalised by male majoritarianism and risks
of democracy;
(i) women’s subordination in a socio-legal regime should be
countered by anti-subordination interpretation and domi-
nance analysis; and
” Carol Gilligan, In a Different Voice (1982) cited in Patricia A. Cain, supra, n. 18;
Martha Fineman, “Dominant Discourse, Professional Language and Legal Change in
Child Custody Decision making” (1988) 101 Harv. L. Rev. 727.
* Robin West, “Jurisprudence and Gender” (1988) 55 Univ. of Chicago Law Review
1 extracted in MDA Freeman, supra, n. 3 at p. 1174.
” For elaboration of feminst methology see, Katherine T. Bartlett, “Feminist Legal
Methods” (1990) 103 Harv. L. Rev. 829; also see, Ngaaire Naffine, “In praise of Legal
Feminism” Journal of Legal Studies at po7i:
Forms of gender injustice
A EES SO etee aE ae 521
(ili) a patriarchal social construction which makes powe
r to dic-
tate freedom can be tackled by empowerment as the true
method of freeing women:” | |
12.3 Forms of gender injustice

Gender injustice is a multi-headed hydra that enters into_all areas of
human activity and manipulate the rights and relations disfavouring
women. Iris Marion Young finds gender injustice as primarily located
in dgmination_an ression>' Dominatiis onan institiifioncon-al
dition that prevents people from participating in determining their
actions or conditions of actions, whereas oppression obstructs com-
municative and learning Abilities. She identifies five faces of oppres-
sion: exploitation, marginalisation, powerlessness, cultural imperial-
ism and violence. 30. eae es
1. Exploitation
The central insight in the concept of exploitation is that oppression
occurs through a steady process of the transfer of the results of labour
of one social group to benefit another. IM. Young gathers support
from the views of other Marxist feminists. Christine Delphy regards
that marriage is a class relation in which women’s labour benefit with-
out comparable remuneration. Ann Ferguson refers to the concept of
sex-affective production, wherein women transfer energies to men.and
children with emotional care and provide men with sexual satisfaction,
and as a group receive relatively littleof either. By transfer of energy,
the servers enhance the status and comforts of the served, keeping
themselves structurally subordinate. Young considers that injustices of
exploitation cannot be eliminated by redistribution of goods as struc-
tural relations remain unaltered, and observes, “Bringing about justice
where there is exploitation requires reorganisation of institutions and
practices of decision-making, alteration of the division of labour, and
similar measures of institutional, structural, and cultural change.”
2. Marginalisation _
This is a dangerous form of oppression because of which a whole cat-
egory of peopleis expelled from useful participation in social life, and
thus potentially subjected to severe material deprivation. Dependency
See well
pp. 1676-
®” Tracy E. Higgins, “Democracy and Feminism” 110 Harv. L. Rev. 1657 at
85. :
and the Politics of Differen ce (1990) extracte d in MDA
31 Iris Marion Young, Justice
Freeman, supra, n. 3 at pp. 614-29.
ce
522 Constitutional Policy and Development Towards Gender Justi
De
right to pri-
arising out of such situation tends to suspend their basic
ndence as a basic
vacy, respect and individual choice. Prolonged depe
dom and
human condition corners them to sense of uselessness, bore
more,
lack of self-respect of equal citizenship. Welfare schemes, without
uctur-
institutionalise such dependence. I.M. Young suggests for restr
ing of productive activity to address a right of participation outside the
wage system.
3. Powerlessness
The powerless lack the authority, status and sense of self that profes-
sionals tend to have. Their positi on to distortions in
is also traceable
division of labour as a consequence of which they have little or no
opportun ity
to develop and exercise skill . privilege of pro-
The status
fession Symbolises possession of specialised Knowledge, ability to
decide or alter the legal position of others, and respectability attached
to the position. The dynamism and self-confidence brimming in the
professionals stand in contrast to the position of nonprofessionals.
Women, who largely belong to the non-professional class, are deprived
of such exposure and often are targets of disrespectful treatment in
addition to personal inhibition in developing one’s own skill. Young
considers the oppression of powerlessness as basic to industrial socie-
ties, and suggests structural changes for amelioration.
4, Cultural imperialism
This involves the universalisation of a dominant group’s experience
and culture, and its establishment as the norm. The views, values
and cultural products of the dominant group gain a greater currency
because of projection
of their experienceas representative of human-
ity as
such. The culturally dominated are marked out by stereotypes
and at the same time rendered invisible. While the oppressed group’s
interpretation of social life finds little space for expression, the domi-
nant culture imposes its experience and view upon the dominated. °
5. Violence
Although generally, acts of violence and harassments are inflicted by
extremists, deviants or the mentally unsound, violence against women
has become institutional, systemic and has amounted to social prac-
tice. It is always at the horizon of social imagination because of the fre-
quency of its occurrence. Deep-seated disrespect against women, sense
of superiority on the partofcnales and helplisonce of omen because
of the totality of the above factors of oppression have been responsible
Empowerment: the concept and method 523
for repeated acts of violence against women. Young asks a pertinent
question, “Given the frequency of such violence in our society, why
are theories of justice usually silent about that?” Viewing incidents
of |
violence against women as symptoms of social injustice, remedy
liesin structural reforms by requiring redistribution of resources and
RRELONS Lelorm of criminal law, and alteration of cultural images by~
abandoning stereotypes and aversions of everyday life. Otherwise,
the
legal system, instead of providing solution, itself may constitute the
problém;*
LM. Young’s broad category of oppressions and dominations caus-
ing gender
injustices
has application in India, in an unfortunately
wide scale. The social practice of neglect in women’s education (female
literacy rate is 39.42 per cent'Whereas male-titeracy raté is 63.86 per
cent), non<involyement of women in economic processes or lucrative
employment (they occupy only 14 per cent of managerial positions),
5 ne eater in workplace (they constitute9o per cent of the total
el tke , rt Re. as “pa si
marginalise workers), female foeticide resulting in decline of female
population (from 933 per 1000 Men in 1981 to 929 per 1000 men in 1991),
the pxactices.of child marriage, dowry harassment, dowry death (once
in every 1000 minutes) increasing number of rape (once in every 54
minutes) and molestations (once in every 26 minutes) have been super-
added by male bias in’‘family law and criminal Iaw2? The UN Report
1980 discloses that women perform 2/3 of the world’s income; earn 1/10
of the world’s income; own less than 1/100 of the world’s property and
constitute 2/3 of the world’s illiterate. Poverty and natural calamities
have made deép dent into the conditions of women’s human dignity.
Sale of girl children and practice of child prostitution are within the
frequent social experience.
12.4 Empowerment: the concept and method

In the backdrop of gender inequality experienced world over, enhanc-
ing the ability of women through positive state effort is attempted
at the international and_domestic levels. Empowerment is basically
infusing of competence into a category that does not presently pos-
sessit.This enables the category to Overcome the prevalent disability
:
and_compet inacces
i other groups ‘in
e with access to good
togood
s things OF lifeand
things of I
human rights. Welfare schemes for education, employment, self-help
collective activities and better legal environment for women equip
legal system provide
2 MDA Freeman, “Violence against women: Does the
Studie s (1981) at p. 215;
solutions or itself constitute the problem?” Journal of Legal (2002)
: A Feminist Perspective”
also see, Joanne Conaghan, “Law, Harm and Redress
22 Legal Studies 319. ‘
2002) at p. 8.
2 AS. Anand, JusticeforWomen (Universal, New Delhi
ce
524 Constitutional Policy and Development Towards Gender Justi
a
Singh, “It
them with the needed power. According to Yogendra
r of self-
(empowerment) implies processes by which women’s powe
capacity for
organisation is promoted and reinforced, they develop the
unt
self-reliance outcrossing the relationship of subordination on acco
of gender, social and economic status and the role in the family and
es abil
society. It,encompasstheir it
tomake yes, cgntrol resources
choic
relationship within family and community. 34
and enjoy participatory
Empowerment takes woman from the position of mere housewife
without mobility, money and knowledge to the position of breadearner
with access to resources, respect and decision-making ability. Better
ci-
economic opportunities enable her autonomy; greater political parti
pation brings ability to organise and mobilise change; more cognitive
ability through education makes her to know about subordination
and the method-of-overcoming it; and all these factors put together,
psychologically embolden her. Building the individual and collective
assets, augmenting the access to basic necessities of life and partici-
pation in decision making are the tasks within its comprehension. It
brings self-confidence amidst the beneficiaries, enables engagement
in more productive activity with autonomy, provides opportunities of
participation in political decision making and stimulates the springs
of inner resources to withstand or dispel hierarchic domination. Thus,
empowerment is basically a comprehensive phenomenon, For remov-
ing obstacles in this process.at vivid places and from different sources,
consolidation of social mivement and legal policies is required. The
component of gender justice is recently written into the human devel-
opment index with a catchy statement that “human development, if not
engendered, is fatally endangered.”3° The Human Development Report
of 1995 points out, “Investing in women’s capabilities and empowering
them to exercise their choices is not only valuable in itself but it is also
the surest way to contribute to economic growth and overall develop-
ment.”
The French post-modernist, Michel Foucault regards that power
exists within the multiple and multifarious sites of relationships in
the society?” Since social power is ubiquitous, and spread over family, .
i tependea Singh, Culture Change in India (Rawat Publications, Jaipur 2000) at
p. 124.
* Andre Beteille views, “The idea of empowerment may be invoked in virtually
any context: in speaking about human rights, basic needs, economic security, capacity
building, skill formation or the conditions of dignified social existence.” Antinomies of
Society (Oxford University Press, New Delhi 2000) at p. 268.
*° Magbub ul Haq cited in J.S. Varma, The New Universe of Human Rights (Universal,
New Delhi 2004) at p. 22; Human Development Report, 1995.
” Michel Foucault, Language, Counter-Memory, Practice: Selected Essays and Interviews
(Cornell UP, New York 1977) at pp. 153, 231; also see, Gerald Turkel, “Michel Foucault:
Law, Power and Knowledge” (1970) 17 Journal of Law and Society 170.
International human rights for women
i. Sa
eee
525
eee
workplace, market, service institutions and administration,
making
woman's position strong through capillary effect of power byreaching
all the spheres is appropriate. Each tissue of social body will have to
be sensitised by holistic approach towards a pro-woman developmen-
tal end. The World Conference of the UN Decade for women held in
Copenhagen in 1980 interpreted development to mean total develop-
ment in the political, economic, social, cultural and other dimensions
of human life as also the development of economic and other material
resources and also the physical, moral, intellectual and cultural growth
of the human person. Thus, improvement of the status of woman shall
be viewed not only as an issue in social development but should be
seen as an essential component in every dimension of development:*
12.5 International human rights for women

Gender discriminations most often invade dignity of life and right
to privacy of woman contrary to the internationally ascribed moral
visions of human rights. A feminist vision of human right is comple-
mentary to the jurisprudence of both human rights and social justice2
Universal Declaration of Human Rights and the Covenants prohibited
sex-based discriminations. But, they were not.adequate to build up
a comprehensive policy of gender justice.’ The Convention on the
Elimination of all forms of Discrimination Against Women, 1979, to
which India is also a party, came into existence with a realisation that
discrimination against women violates the principles of equality of
rights and respect for human dignity; that it is an obstacle to the par-
ticipation of women, on equal terms with men, in the political, social,
economic and cultural life of their countries; and that it hampers the
growth and prosperity of society and family. The CEDAW bears in
mind.the great contribution of woman to the welfare of the family and
to the development ofthe society, so far not fully recognised, the social
significance of maternity and role of both parents in the family and in
the upbringing of children. It warns that the role of women in procrea-
tion should not be a basis for discrimination. It exhorts for sharing of
3 R. Indira, “Women and Development-The Indian Experience” (1997) 59 Journal

of the Mysore University 1 at p. 2; Rameshwari Verma, “Women and Development: A
Feminist Perspective” at p. 9; also see, R.S. Tiwari, “Feminism and Globalisation versus
Indian Women Empowerment”, R.S. Srivastava, “Women Empowerment: Some
Critical Issues” in Abha Avasthi and A.K. Srivastava (Eds.), Modernity, Feminism and
Women. Empowerment (Rawat Publications, Jaipur 2001) at pp. 33, 171 respectively. .
3 Charlotte Bunch, “Feminist Visions of Human Rights in the Twenty-first
Century” in Kathleen Mahoney and Paul Mahoney, Human Rights in the Twenty-first
t p. 967.
Cultural
ns ONES UDHR, 1948, International Covenant on Economic, Social and
Rights, 1966 and International Covenant on Civil and Political Rights, 1966.
526 and Development Towards Gender Justice
Constitutional PolicyLT
RENIN O tilt h
the soci-
responsibility of upbringing between men and women and
n in all its
ety as a whole. Condemning discrimination against wome
ity of
forms, it obligates State Parties to embody theprinciple of equal
to pro-
men and women in their national constitutions and legislation,
Se
exercise and enjoyment of human rights and fundamental freedoms

on a basis of equality with men.” Particular methods of effectuating
this policy have also been laid down for state action:
e Temporary special measures to accelerate de facto equality
between men and women (Article 4).
© Modification of social and cultural patterns of conduct of men
and women by eliminating prejudices, inferiority/superior-
ity distinctions or stereotype roles (Article 5).
¢ Suppression of all forms of traffic in, or exploitation of women
(Article 6).
¢ Equal opportunities in public and political life, in all levels
of education, vocational training and career guidance with
effective measures against drop outs (Articles 7-10).
e Equality of opportunity in employment and equal remunera-
tion for works of equal value and right to safety, social secu-
rity and health in the context of employment (Article 11).
e Elimination of discrimination in access to health care services
and family planning but entitlement to special and appropri-
ate services relating to maternity and right to family benefit,
access to finance and participation in cultural life (Articles
12 and 13).
¢ Ensuring rural women to participate in and benefit from rural
development without discrimination (Article 14).
¢ Equal legal capacity to enter into contract, and equality in all
matters relating to marriage and family relations (Article 15
and 16).
ReThe Convention contains measures for supervision by an International
Committee, its composition and functiorts.)The Convention’s major
focus on substantive equality as an instrument of gender justice has
great practical relevance for social change. Temma Kaplan views that
women concerned with human rights internationally continue to com-
mit themselves to concrete transformation in everyday life through
collective action to achieve human rights. This has greater pertinence
International human rights for women
i 527
for human rights’ effect on criminal justice system and personal
law
regime. “Women’s right as human right” has gained a focus of atten-
tioninIndia when human rights organisations addressed the abuse
of amniocentesi and
s prompted the passing of Pre-Natal Detection
Technique Act in1994 to prevent “vanishing of girlchild”.4" In the mat-
ter of sexual harassment in workplace, gender discriminatory personal
laws and protection under criminal justice system, sensitising through
international human rights norms has been of great use, with a clear
effect on right to dignified life. The Vienna Declaration made com-
prehensive proposals for integrthe
ati women
ng’s rights into the UN’s
system-wide activity, and pressed upon the member nations to elimi-
natespunalicicanment dzalicicay af)gender-biased administration
of law and alleviate the harmful effects of traditional or customary
practices, cultural prejudices and religious extremism upon women’s
rights (II-B-37 and 38). Here, the control of abuses Of religious free-
dom and cultural right for protection of women’s rights is a laudable
harmonious approach. Katherina Tomasevski views that developmen-
tal policies do not sufficiently orient towards greater participation of
women in labour force and equal sharing in access to resources and
that effective application of Vienna Declaration alone would overcome
the abyss between “woman” and “human rights”.
The United Nations Fourth World-Conference on Women held at
Beijing contributed-towards putting women’s perspectives on global
agenda
on highest priority. Ittecognised that-poverty affects women
disproportionately and made a “180 degree shift from a focus on
women as victims to women as a major force.” It called upon gov-
ernments to develop and implement National Action plan on 12 criti-
cal areas such as health, violence against women, sexual exploitation,
political participation, girl child and economic justice. This develop-
ment had its own impact upon national legislations and policies of
international bodies like World Bank. Beijing Conference’s powerful
ripple effect has raised hopes for women’s empowerment and make
them a serious political constituency.¥
41 Temma Kaplan, “Women’s Rights as Human Rights: Grassroots Women Redefine

Citizenship in a Global Context” in Patricia Grasimshow, Women’s Rights and Human
Rights (Palgram, New York 2001) at pp. 290, 304. ; ae
Katarina Tomasevski, “Women’s rights” in Janusz Symonides, Human Rights.
Concept and Standard (Ashgate, UNESCO Publishing, Darthmouth, 2000) at pp. 231,
251:
Women,
43, Arvanne Fraser, US Ambassador to the UN Commission on the Status of
cited by Amrita Das, “Beyond Beijing” in Abha Avasthi and A.K. Srivastava, supra, n.
38 at p. 163.
4 Bella S. Abzug, cited by Amrita Das, at p. 163.
528 Policy and Development Towards Gender Justice
Constitutionalet
Oe ie eenwibeene ee na
12.6 Historical background.
n beings as
The core approach of Hindu philosophy in treating all huma
pee
equal holders of dignified personality could hardly look down
womens right
as mere objects. Recognitionof widow. remarriage and socia
to involve in scholarly activities spoke of fairly good l position
n
enjoyed by women in early Vedic period. Girls received educatio
just like boys; and women studied Vedic literature and involved in
religious rituals as equal partners with men. “Gods are pleased where
women are respected”® was an axiom that reflected this benevolent
ta is a description of wife’s place:
ethos. In Mahabharathere
“A wife is half the man transcends
In value far all other friends.
She very earthly blessing brings,
And even redemption from her springs.
In lonely homes companion bright,
These charming women give delight;
Like fathers wise duty tried,
To virtuous acts they prompt and guide.
Whenever we suffer pain and grief,
Like mothers like they bring relief.’4”
But contradicting this ideal, there occurred the practice of male domi-
nance in the very name of protection of women.* Deni al
of free dom
was a bitter fruit that rende red prote ction , a_cru el gift to women.
Although in the pristine Vedic expositions, life affirming ethics was the
perioemer
major ethos, in later period, during.the .of. d gence.of.Smriti
literature, the practiceof sati came into vogue.” Woman’s entitlement
to property right got declined.° But there were also efforts in Smritis to
recognise women’s personal estate or stridhana." In non-Brahmanical
radical movements of the 12th century in the South, there was a laud-
able effort to restore position of dignity to woman. Disregarding the
external differences between men and women, it was laid down in
Vachana literature that the soul that hovers in men and women knows
no sexual difference.® It is the feeling of one’s own sex that makes the
* Romila Thapar, A History of India (Penguin Books, Harmondsworth, 1966

rept. 1981) at pp. 41-42); A.S. Alteker, Vedic Society, Cultural Heritage of India, Vol. 1
(Ramakrishna Mission, Calcutta 1937 rept. 2001) at pp. 222-23.
46 Manu Smriti.
*” Mahabharata, 1-74-41—43 (Sakuntalopakhyana).
“ “Na stri swatantryamarhati” Manu Smriti.
Sati in Smriti; see supra, Ch. 2.
” Fora discussion see, P. Ishwara Bhat, “Hindu mother’s right to share in coparcenery
property in South-India” (1985) Academy Law Review.
°*! Manu, IX-194; Yaj., II-143; Katyayana cited in Mitakshara, XI-5.
* Jedara Dasimayya’s Vachana (verse) in Kannada translated and extracted in
Historical background 529
~— aS SURSESGIC_sethe e e celealla l a
opposite sex a taboo. But if the taboo in the mind vaporises, there is no
room for taboo of the body} In the Bhakti literature there is stress on
reordering of society onegalitarian lines. Kabir sang:
“All the men and women in the world are His living forms,’>4
Nanak’s question “Why call woman bad from whom are born kings?”55
or the folklore question in Kannada poem “Why O you, the blind ones,
condemn the givers of life, comforts and fortune, women?” reflect the
strong spirit of feminism. During the medieval period, the position
of women. got deteriorated with increase in the practices of.sati and
femaleinfanticide. There were floris tokaninvoluntary, sati during
the timesofAkbar and Jahangir>* Akbar regarded that it was para-
doxical that a deceased male Hindu should get salvation by the sacri-
fice of the life of his’spouse who supported him while living, and that
the whole practice was due to the cheapness of value for womar’s life
that thé sociéty rated” Prohibition of child marriage and permission
for Widow remarriage were steps in elevating the status of woman. But
pean beerie Uae n spite ofthe concern for higher social Statiis
s,
amock
made thesépiecemeal reform ery. — ——
The legislative measures in colonial period to abolish practices of
sati and female“infantitide, and
alerted
the administrative supervi-
sion at grass root level accompanied by enlightened public opinion
were trendsetters for reforms.” The efforts of Raja Ram Mohan Roy
and Sir William Bentinck in this re yard were great. The intellectual
renaissance and nationalist movement in the 19th and 2oth centuries
laid focus on the cause of women’s amelioration and equal participa-
tion. Swami Vivekananda said, “There is no chance for the welfare of
the world unless the condition of women is improved. It is not possible
for a bird to fly on only one wing.”** Reforms in family law allow-
ing widow remarriage, prohibitin child marriage and recognising
ed
woirert’s property were enacted. Practices of teniple prostitution and
doWry were in vogue without much legal attention. In the background
Siddayya Puranik, Human Values in Vachana Literature (Bharatiya Vidya Bhavan,
Bangalore 1997) at p. 59. ;
53 Akkamahadevi’s Vachana, translated and extracted in Vijaya Dabbe, “Virasaiva
Movement: A Gender Perspective” (1997) 59 Journal of the Mysore University 74 at p.
79. Also see, at p. 80 citing from Siddarama’s Vachana to the effect that woman is not just
a female but is really the eminent Lord.
4 Romila Thapar, supra, n. 45 at p. 310. . by
5° PN. Chopra, “Some Experiments in Social Reform in Medieval India” 2 Cultural
627,
Heritage of India (Ramakrishna Mission Institute, Calcutta 1962 rept. 2001) at pp.
638.
*° Ibid, at p. 632.
Ee, NZ
sal, New Delhi
3 And 4 Verma, The New Universe of Human Rights (Univer
2004) at p. 277.
Justice
530 Constitutional Policy and Development Towards Gender
Oe
piecemeal
of these mixed experiences of exploitations, cruelty and
l jus-
reforms, the dawn of Independence ushered in new era of socia
:
tice and human rights.
a grand
“Framing of the Constitution was an opportunity to put
scheme of social justice into national agenda. As a part of this task, in
im-
the equality clause there is not only prohibition upon making discr
ination amidst citizens on grounds of sex, but state’s powertomake
special provisions for women and children has also been provided
for. This clause, in spite of its unique policy with no parallel in other
constitutions, did not attract serious discussion in the Constituent
Assembly, perhaps due to unanimity of views or owing to concurrence
with the ideological stand of Congress partyon women’s position. Mr
Syed Abdur Rouf said, “As for ‘sex’, I do not think that in the mid-
dle of the 20th century there will be anybody attempting to make any
discrimination on that ground.”? Professor. K.T. Shah observed, “The
rage for equality which has led to provide equal citizenship and equal
rights for women has sometimes found exception in regard to special
provisions that, in the long range, in the interests of the country or of
the race, exclude women from certain dangerous occupations, certain
types of work. That, I take it, is not intended in any way to diminish
their civic equality or status as citizens.”° He viewed special facility as
instrumental for real equality.
There were 15 women members in the Constituent Assembly, which
had“ totalstrength of 294 members. Rajkumari Amrit Kaur, Hansa
Mehta, Renuka Roy, Durgabai, Dakshayini Velayudhan were the
prominent women in the Constituent Assembly. On better protec-
tion of women’s interests, it appears, their role was“not very inspiring
especially in the context of debating on Devadasi and avoiding works
unsuitable to women. Professor K-T. Shah-moved_an_ amendment to
include the phrase “or their dedication in the name
of religion to be
Devadasi” after the phrase “traffic in human beings”. Heconsidered
thatthe problem prevailed in the country to a large extent; thatitwasin
the name of religion, and that young women of immature ‘age became
its-victim. He observed, “The name orcloak of religion should not
help all those who indulge in such traffic; and the Constitution should
make no bones about prohibiting this.”“' Smt Durgabai regarded the
amendment as unnecessary because, as in Madras, legislative meas-
ures would be sufficient to deal with the matter, as it could put the
system out of vogue in Madras.* Smt Renuka Roy supported Professor
° CAD, Vol. VII, at p. 650.

® Ibid, at p. 655.
*! Ibid, at p. 805.
® Ibid, at p. 808.
Histor
i
e ical background
e 531
Shah’s amendment for the reason that abolition of the Devadasi
sys-
tem by a categorical provision in the Constitution would be better pro-
cedure to deal with the custom still lingering in some areas. She was
critical about the dual standards of morality in the society, which was
responsible for the evil practice and called for attitudinal change. She
said, “Acts for the prevention of immoral traffic in women do exist
already in this country but their operation is not effective and even if
legal flaws are amended, these can only become really effective when
men’s mind change towards this problem, whereby the very dig-
nity of womanhood is lowered.”® Sri TT. Krishnamachari supported
Durgabai’s view and felt no need for providing for something that
vanishes tomorrow due to legislative intervention.*4 Professor Shah's
effort became futile. Looking to the continuance of the practice even
today in certain parts of Karnataka, it is possible to comment that clear
constitutional prohibition of the practice would have helped in build-
ing reform-supporting public opinion and in triggering administra-
tive and judicial interventions.
Sti HV. Kamath, Lakshminarayan Sahu and Syed Abdur Rouf sug-
gested the policy of exclusion of women from works unsuitable to
sex for incorporation in the Directive Principles of State Policy. It was
pointed out that some lady members disliked use of the word “sex”,
and finally the move failed. It is not clear whether the opposition was
due to fear of losing employment opportunity in the name of unsuita-
bility. More vocal participation by lady members would have put the
matter into right perspective.
Inthe matter of Directive Principle
on uniform civil code, responding
to the emotionally surcharged views of some members based on reli-
giqus feelings, Shri K.M. Munshi observed that logical consequence of
prohibitionofdiscrimination against women was to extend equality to
women in personal law and restrict the sphere of religion to its proper
place. He said, “Look at Hindu Law; you get any amount of discrimi-
nation against women, and ifthatispartofHindu religion or Hindu
religiotS practice, you cannot pass _a single law which would elevate
the position of Hindu women
to that of men.” The laudable efforts
of Sri Munshi, Alladi Krishnaswami Ayyar and Dr. B.R. Ambedkar to
wean away personal law from the influence of religions reflect rational
approach to support gender justice.” wiid
Ifcan be infer red
from the above that the framers of the Constituti on
envisaged a comprehensive scheme for gender justice by employing the
° [bid, at p. 810.
* Ibid, at p. 811.
® Ibid, at p. 512.
% Ibid, at p. 548.
” Ibid, at pp. 549-51.
532 Constitutional ePolicy and Development Towards Gender Justice
e
Oe
e action;
tools of non-discrimination, equal protection, and affirmativ
ng the
by prohibiting immoral traffic and exploitations; and by setti
lace,
policies of humane and equitable conditions for women at workp
in access to civic facilities and in intra familial relations. Compared
itutional
to the Constitution of the United States of America, the const
guarantee in India for women’s benefit is articulate and methodic.
12.7. Relevant constitutional provisions and developments for

gender justice
The policyof protection to women is spread over various parts of the
Constitution. The growth of case law has added to its strength in recent
times. Some constitutional amendments have introduced new provi-
sions for Women’s welfare and better public participation. Preamble’s
reference to social justice and dignity of the individual as Value’ goals
of the polity has inspired judiciary to elaborate women’s right to digni-
fied life. These two strands of welfare jurisprudence, spread over vari-
ous parts of the Constitution, have nurtured and enriched the strategy
of women’s amelioration. The seriousness with which the policy is han-
dled by the mainstream I Oecn nemo asen a areas
of the legal systemi can legitimately
earn the name of constitutional
feminism.® In fact, gender justice enables the flourish of right to be
human on the part of woman. As Justice Dr. A.S. Anand has observed,
“The process of gender justice, broadly speaking, covers the rights of
women against exploitation and victimisation...Unless we recognise
her rights — her basic human rights-gender justice would only be ‘lip
service’ with no tangible result.” Justice V.R. Krishna lyer has put it
emphatically, “The fight is not for woman’s status but for human worth.
The claim is not to end inequality of women but to restore universal
justice. The bid is not for loaves and fishes for the forsaken gender but
for cosmic harmony which never comes till woman comes.””°
\ me
ia Equality ,PAW rw Pg Av Ay \3 X P
Article 14 of the Constitution provides that the State shall not deny
to.any person equality before law or the equal protection of the aws
within the territory of India. Under Articles 15(1) and 16(2),
sex is apro-
hibited ground of discrimination against any citizen in genéral matters
or in respect of employment or office under the State. Judiciary, while
** P. Ishwara Bhat, “Constitutional Feminism: An Overview” (2001) 2 SCC (Jour) 1.

® A.S. Anand, Justice for Women (Universal Law Publishers, New Delhi 2002) at
p. 69.
” V.R. Krishna Iyer, Law and Life (Vikas Publishing House, New Delhi 1979) at
p. Si.
Relevant constitutional provisions and developments 533
Fy
S TR el eh
dealing with discriminations against women in the matter of employ-
ment or laws in general, has applied these provisions. In Bombay Labour
Union
Int v. ernati Franchiona
ses (P)l
Ltd.7',the Supreme Court quashed
an employment rule, which requir ed the unmarried | woman to give up
her position when she married, as violative of Article 14. A formalistic
approach to gender equality was adopted by the Punjab and Haryana
High Court in Raghuban” to uphold a government order that rendered
Py = — — ~—- —~— = —_— =
wae In Air India v.Nergesh Meerza’*, although the Supreme Court

—
uphe
a restraint
ld upon air hostesses to marry within four years’ of
ee > ee
“It seems to us that the termination of the services of an air hostess

under such circumstances is not only a callous and cruel act but an open
insult to Indian womanhood—the most sacrosanct and cherished insti-
tution... Apart from being grossly unethical, it smacks of a deep rooted
sense of utter selfishness at the cost of all human values.”
However, the Court continued protectionist approach of formal equal-
ity to allow differential treatment of male and female employees in
the matter of promotional rules and other service conditions. In Air
India II’* the differential treatment in retirement age was upheld as the
service conditions were evolved on the basis of agreement between
employer and employees, which in turn was influenced by collective
bargaining process. The Court ruled that the unequal treatment was
not entirely based on sex, but was traceable to collective bargaining.”
e e of the ion
“2 children. This calls for operat substantive equality mecha-
wy 3 nism for their well-being” The explicit objective of this provision is
mov ‘eliminationof substantive inequality——of the disadvantaged group in
a\" " ——— ————————— x
71 ATR 1966 SC 942.

72 Raghubans v. State, AIR 1972 P&H 117.
73 (1979) 4 SCC 260: AIR 1979 SC 1868.
74 (1981) 4 SCC 335: AIR 1981 SC 1829.
> Ibid, para 80.
2004 SC
76 Air India Cabin Crew Assn. v. Yeshaswinee Merchant, (2003) 6 SCC 277: AIR
187.
and Brenda Cossman, “On Women, Equality and the
7 See, Ratna Kapur
NLSJ 1 for a critique
Constitution: Through the Looking Glass of Feminism” (1993) 1
American position
about formalistic and substantive gender equality approaches; on
Where we are at the end
see, Martha Craig Daughtery, “Women and the Constitution:
of the Century” (2000) 75 New York University Law Review 1.
534 Constitution and Developmen
al Policy atc t Towards Gender Justice
int SN es iain HEN. eS 8
is
the society by positive measures. In interpreting Article 15(3),_it
regarded that the special provisions can be only facilitative, protec-
tive and corrective for women but not discriminatory against them/®
The Madras High Court in Shantabai’”? ruled that since Article 29(2) did
not prohibit discrimination on account of sex in matters relating to
admission to educational institutions which were getting grant in aid
from government such discriminations were not unconstitutional. It is
submitted, this is problematic in view of the concerted application of
equality provisions and Article 29(2). In Dattatraya, the Bombay High
Court looked to the social, historic and economic inequality of women,
and upheld the reservation of seats for women in municipalities as
a special provision “to raise the position of women to that of men”.
The corrective approach ‘to gender for overcoming the subordina-
tions and past denials is explicit here. hamsher Singh® the Punjab
bail matters,® to uphold punishment for outraging modesty of woman

(with
no similar offence against men)® and to
differentiation
uphold
between
———
general
cs
offences
<< 4
and ae
offenceset
against women in the matter
of release of convicted prisoners atthe special occasion of commemo-
rating India’s 50 years’ of Independence.“ Although protectionism by
itself is not unwarranted in spheres of sexual violence, following of it
indefinitely and in other spheres creates stereotype role and image
about women.®5
With disenchantment with formalistic approach to equality, there
was also a realisation that compensatory state action towards sub-
stantive equality supplements formal equality.®° In Govt. of A.P. v.
P.B. Vyayakumar*?, Rule 22-A(2) of Andhra Pradesh State Service
78 Mahadeb Jiew v. B.B. Sen, AIR 1951 Cal 563: AIR 1952 Cal 825; Anjali Roy v. State
of W.B., AIR 1952 Cal 825 where discrimination between males and females in the
matter of admission to educational institutions like women’s college or girls’ school
for upholding their specific interests was not violative of right to equality.
” University of Madras v. Shantha Bai, AIR 1954 Mad 67.
*° Dattatraya Motiram More v. State of Bombay, AIR 1953 Bom 311.
*! Shamsher Singh v. State, AIR 1970 P&H 372.
*? Choki v. State, ATR 1957 Raj 10.
*° Girdhar Gopal v. State, AIR 1953 MB 147.
Sanaboina Satyanarayana v. Govt. of A.P., (2003) 10 SCC 78.
Eileen Kaufman, “Women and Law: A Comparative Analysis of the United States
and Indian Supreme Court's Equality Jurisprudence” (2006) 34 GA. J. Int’l & Comp. L.
557 at p. 604.
*° Marri Chandra Shekhar Rao v. Dean, Seth, G.S. Medical College, (1990) 3 SCC 130;
Roop Chand (Adlakha) v. DDA, 1989 Supp (1) SCC 116: AIR 1989 SC 307.
*” (1995) 4 SCC 520: 1995 SCC (L&S) 1056; also see, P. Nagabooshanam, Social Justice
a
S c e NTS to.
Rules, which prescribed a minimum preference of 30 per cent of the
posts in each reservation category, was upheld by the Apex Court
on the ground that making special provisions for women in respect
of employment or posts und the
er state is an integral part of Article
15(3), which could not be whittled down in any manner by Article 16.
The Mg gcle that creating job opportunity for women was an
_ important limb of gender equality. Sujata Manohar, J. observed for the
Court, “it is in orderto eliminate the socio-economic backwardness
of women and to empower them in a manner that would bring about
effective equality between men and women that Article 15(3) is placed
in Article 15.” satin tain the interrelations between Articles
15 and 16 and viewe
° Dn ttl ete Oe te ee
d that Article 15 is more general provision and the
ISSA TAME Specifie-one. SinceArticle 16 does not touch upon any
special provision for women, it cannot in any manner derogate from
Re ;
ag ee Sa
fel
SOUL; connéc
A
tion under NOArticle
A LO NGA
15(3). The judgment makes a progressive development in the sphere of
gender justice.
In Indra Sawhney case™ the Supreme Courthad favoured the a roach
of keeping certain quota of jobs for women in each respective category
Sree vation PB. Sawant, J, while concurring, obsérved, “Women
0 ScNTnerabile section of the society, whatever the strata to which
they belong. They are more disadvantaged than men in their own
social class. Hence reservation for them on that ground would be fully
justified, if they are kept in the quota of the respective class, as for
other categories of persons.” Thus, the impact of Article 15(3) upon
the interpretation of Article 16(4) is significant in widening the policy
of substantive equality.
The question of formal versus substantial equality has bothered the
courts in various cases. In Anjali Roy v. State of W.B.® Article 15(3) was
regarded as an exception to Article 15(1) and enabled the state to dis-
criminate against males by making a special provision in favour of
females. In Yusuf Abdul Aziz v. StateofBombay” and Sowmithri Vishnu”
at issue was the constitutionality of Section 497 IPC that makes adul-
tery committed by man an offence and exempts the “adulteress”
woman from punishments even for abetment of it. In both the cases,
the Supreme Court regarded the impugned provision as providing
and Weaker Sections (C. Sitaraman & Co., Chennai 2000) at pp. 154-55 for admiration
e a new
of the judgment, but still pleading for amendment to Art. 16 to incorporat
provision for reservation to women in jobs.
8 Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1.
* Ibid, para 514.
AIR 1952 Cal 825.
AIR 1954 SC 321.
% 1985 Supp SCC 137: 1985 SCC (Cri) 325: AIR 1985 SC 1618.
ce
536 Constitutional Policy and Development Towar‘ ds Gender Justi
ssive
for preferential treatment of women in the background of aggre
Woman
male sexuality to which women fall prey as passive victims.
st
was considered as the victim rather than author of the crime again
|
sanctity of matrimonial home. A substantive equality approach would
have demanded that protecting the marital bed unsullied was equally
important for both husband and wife, and that the validity of the law
should be decided on that basis. Hence, proper enquiry for the pur-
pose of Article 15(3) is to probe whether the impugned state action
tends to overcome subordination of women by empowerment.
In Madhu Kishwar v. State of Bihar?, which involved constitutionality
of Chota Nagpur Act, 1908, that conferred right of intestate succes-
sion in tribal family exclusively upon sons of the deceased person, the
majority of the three-Judge Bench of the Supreme Court (Punchhi and
Kuldip Singh, JJ.) ruled that non-application of the Hindu Succession
Act, 1956 and the consequent diversity of law did not violate ‘Article
14. Ramaswamy, J,, in dissent, was willing to extend the right of suc-
cession to female heirs on the basis of Articles 14 and 15(3). Since State
Government’s Committee came with a report about unacceptability
of amendment to Chota Nagpur statute amidst the tribals, the Court
adopted a cautious approach. However, the difficulty was overcome
by an appreciably creative interpretation that female members’ right
to maintenance formed an aspect of right to dignified life, which
could not be deprived, by male heirs’ right to inherit the property.
The case demonstrated the advantage of relying on Article 21 rather
than on Articles 14 and 15 in hard cases. However, equality clauses
were applied in quashing of the discriminatory provision in Section
10 of the Divorce Act, which had put women into a disadvantageous
position in getting divorce, by the Kerala‘and Bombay High Courts.
In Githa Hariharan the Supreme Court construed the Guardianship
legislation in the light of Articles 14 and 15 to the effect that mother
was entitled to be natural guardian even during the life time of father,
while in fact, the statutes had relegated the position of woman to a
secondary position.
The peak of judicial activism vis-a-vis women’s right to substantiveee
impacts upon woman, judiciary can fill the gap by its guidelines, and
protect women’s right to dignified life. In this case, a class action was
brought under Articles 14, 19 and 21, for the enforcement offunda:
mental rights of working women and to prevent sextial harassment
°° (1996) 5 SCC 125: AIR 1996 SC 1864.

** Githa Hariharan v. RBI, (1999) 2 SCC 228: AIR 1999 SC 1149.
” (1997) 6 SCC 241: AIR 1997 SC 3011.
Relevant
ret rete const itutional provisions and developments
mrrereer ener tere ee 537,
of working women in all workplaces. he Supreme Court
referred to
Article 15(3), Article 42 (directing the state to secure just-
and humane
conditionsof work) and Article 51-A(e) (Fundamental Duty upon
citi-
zens to renounce practices derogatory to the dignity of women).
The
Court also referred to relevant international conventions. It conceded
that although the primary responsibility for ensuring safe and dig-
nified working environment through legislation is upon legislature,
when instances of sexual harassment resulting in violation of fun-
damental rights of women workers are brought before the Court, an
effective redressal required laying down of guidelines for the above
ur ose. The Apex Court has made it clear that these directions would
be binding and enforceable in law until suitable legislation is enacted
tooccupy the field.
12.7.2 Right to dignified life

In the light of proposition in Maneka Gandhi v. Union of India® that the
procedure established by law applied for deprivation of right to life or
personal liberty shall be just, fair and reasonable, the judiciary began
to probe into constitutionality of law and procedure on both substan-
tive and procedural grounds. This gave a sound footing for developing
feminist perspective like dignity of womanhood and preciousness of
right to privacy of woman as the essential components of due process
culture.
In the context of legal protection of women, the above approach con-
templates at least the following things: First, when the basic essentials
that make up a dignified life of women are deprived by state inac-
tion, legal vacuums, and mute tolerance of hegemonic private actions
which impact upon women adversely, the positive right of sustenance,
shelter and protection shall be recognised and secured by the judi-
ciary under Article 21. Suitable legislative and administrative follow
up actions shall be taken in support of such rights. Going beyond the
dichotomy of procedural and substantive due process, the substance
and outcome of the law should internalise the protection perspective of
Article 21. By purging objectionable or iniquitous features of personal
law by reading Article 21 along with 14 and 19, the judiciary has tried
to bring a pro-woman approach in family matters.” Second, an activist
application of constitutional remedies like writ of habeas corpus and
monetary compensation and heightened scrutiny of privacy invasions
add to the worth of dignified life of women. The rehabilitative side
% (1978) 1 SCC 248: AIR 1978 SC 597. .
°° T. Sarita v. T. Venkatasubbiah, AIR 1983 AP 356; Harvinder Kaur v. Harmander Singh,
AIR 1984 Del 66; Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90: AIR 1984 SC
1562.
y and Developmen
Constitutional PolicSC t Towards Gende r Justice
538
i he cali IRRMNE ER SAE REERIS SS PR ES S
isa
of this strat-
of protection against immoral trafficking is a component
ing to
egy. Thirdly, it contemplates strict implementation of laws relat
of
dowry prohibition, sati, rape and other sexual offences, prevention
immoral traffic, prohibition of indecent representation of women, and
guarantee of right to maintenance and maternity benefit.
12.7.3. Right to maintenance |

The judicial approach about right to maintenance is influenced by its
consideration of dignified life. As held in Sapla Devi case®, the law
of maintenance is aimed at prevention of vagrancy, and_securing
of right to food, clothing’ and shelier tothe deserted wife and chil-
dren. According to V.R.. Krishna lyer, J. it contains a social purpose
“that the ill-used wives and desperate divorcees shall not be driven to
-
moral and material dereliction to seek sanctuary in the streets. In Bai

Tahira®, Fuzlunbi® and Shah Bano cases’ the Supreme Court applied
Section135 ofthe Criminal Procedure Code irrespective of the claims
of Muslim personal law thatthe Muslim husband’s obligation to pay
maintenance to his divorced wifeisconfine d A statute
to iddat period.
enacted to override Section 125 and to uphold personal law was inter-
preted in Danial Latifiasnot defeating the obligation of the Muslim
husbandto pay maintena evennce
beyond the iddat period. Applying
the rule of equality, the Court held that an interpretation of the Act
that would leave Muslim “women in a less advantageous position than
Hindu, Buddhist, Jain, Parsi or Christian Women would violate the
‘constitutional guarantee of right to equality. By’a clever and creative
interpretation, an effective protection of lifetime maintenance was
ensured.
The Supreme Court in Madhu Kishwar v. State of Bihar'® abstained
from declaring the impugned law as violative of right to equality since
the tribal law and custom were based on cultural diversities, and non-
uniformity is not always discriminatory. The Court feared about bee-
line of similar claims from various fields of personal laws and found
the legislative remedy as more appropriate. The majority judges, Kuldip
Singh and Punchhi, JJ. declined to read down the “male descendent”
to include “female descendent” as done by Ramaswamy, J. in minority
judgment. However, they held that right of the male descendent in the
** Naurang Singh v. Sapla Devi, AIR 1968 All 412.

” Bai Tahira v. Ali Hussain Fidaalli Chothia, (1979) 2 SCC 316: AIR 1972 SC 362.
Fuzlunbi v. K. Khader Vali, (1980) 4 SCC 125: 1980 SCC (Cri) 916: AIR 1980 SC 1730.
"Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556: 1985 SCC (Cri) 245: AIR
1985 SC 945.
"2 Danial Latifi v. Union of India, (2001) 7 SCC 740: AIR 2001 SC 3958.
3 (1996) 5 SCC 125: AIR 1996 SC 1864.
Relevant constitutional provisions and developments
SS esisme SARL it a ene, ll 539
tribal tenancy should be subject to right to maintenance on the
part of
female dependents of the deceased. Punchhi, J. observed for
the Court,
“It is in protection of the right to livelihood, that the immediate female
relatives of the last male tenant have the constitutional remedy to stay
on holding the land so long as they remain dependent upon it for earn-
ing their livelihood, for otherwise it would render them destitute. It is
in this way only that the constitutional right to livelihood of a female
can interject in the provisions to be read as a burden to the statutory
right of male succession...” It is submitted, while the competence dif-
ficulty of the Court in wholesale quashing of personal laws cannot be
undermined, the super imposition of constitutional right to life upon
statutory provisions should be appreciated as a fruitful strategy with
a scope for wider future application.
12.7.4 _Habeas corpus for women’s protection

In a notable development in Law of Writs in late 1980s, the Supreme
Court showed its readiness to issue writ of habeas corpus against pri-
vate persons to save battered women. Deviating from Vidya Verma v. Dr.
Shiv Narain Verma‘, where it had declined to issue writ of habeas corpus
in a situation of private detention on the ground that the protection of
right to life and personal liberty is available only against the state and
not against private actions, in State of W.B. v. O.P. Lodha’®, the Court
traversed a different path in a case of alleged private detention. Here,
in response to a letter, which is said to have been written by a woman
alleging illegal confinement against her wishes by a man, the Supreme
Court directed the latter to immediately produce the detenu before the
Additional Chief Judicial Magistrate, Jamshedpur. Although the letter
was later discovered to be a forged one, the seriousness with which
the Court responded to the problem of women was a trend setter. The
delay of one and a half months in placing the letter by the Registrar
was strongly objected by the court. The Apex Court observed, “It is
making a mockery of the judicial process if a matter where a woman
complains of illegal confinement is not treated as important enough to
be placed before the court forthwith. If a matter of this nature is not
considered as urgent enough for being listed on priority basis, no other
matter deserves to be listed on priority basis.”
The potential role of Nilima principlecan be seen in the background
of notorious wife-seller’s case of 1994.'% In 1986 one Nasrin, wife of
4 AIR 1956 SC 108.

5 (1997) 5 SCC 93: AIR 1997 SC 2021 at p. 2023.
2004) at p. 272;
ae Ishwara Bhat, Fundamental Rights (Eastern Law House, Kolkata
Dignified Life and
also see, P. Ishwara Bhat, “Social Justice for Women through right to
Personal Liberty” (1997) Journal of the Mysore Universi ty 15:
Constitutional Polic ent Towards
y and DevelopmC Gender Justice
540 a a, e n c e r
eS a
sp
a
complain with
Shabir was said to be missing. The husband did not
. In 1993 Nasrin’s
the police nor allowed Nasrin’s mother to complain
to which she
mother came to know that Nasrin was in a brothel
ht the
had been sold by Nasrin’s husband himself. The mother soug
help of
help of U.P. police in vain, to recover her daughter. With the
a
National Federation of Indian Woman Organisation she pursued for
, as
Magistrate’s order for raid of brothels. That was also unsuccessful
Nasrin had been shifted to Rajasthan. Finally shefiled a petition for
habeas corpus before the Supreme Court, alleging the police inaction.
The Court directed the U.P. police to produce the woman within five
days, failing which contempt proceeding was threatened. Ultimately
the Rajasthan police produced Nasrin after 15 days. epee a
trates the significance of habeas corpus remedy in a societyri den
with crimes like kidnapping, forceful confinement, keeping in brothel,
ett’ When the-close relative like husband resorts to selling of wife to
brothel, and with the connivance of police the brutal act is suppressed,
it is remarkable that the remedy of habeas corpus comes asthe solitary
hope ofdignified life-~ 6 TRE ie 6
Re, Balwant Singh" is another case to demonstrate the role of habeas
corpus in attaining gender justice. Here, two minor daughters of one
Birmati were kidnapped and detained by their cousin for pressurising
Birmati who was in possession of some family land, so that she will
not sell the land to persons other than him. With the help of Mahila
Dakshita Samiti, a voluncary organisation, Birmati petitioned for writ
of habeas corpus before the Supreme Court. The Court passed an order
of habeas corpus on the basis of which police recovered the kidnapped
daughters. When subsequently, the Secretary of the Samiti was threat-
ened by the kidnapper and a village Sarpanch, the Court held them as
guilty of contempt of court and imposed fine. In addition to the role
of writ of habeas corpus in rendering gender justice, the commendable
role of feminist organisation is illustrated in this case.
12.7.5 Procedural due process

Concerning protection of physical privacy of women vis-a-vis inves-
tigativé agency, it is laid down in Nandini Satpathy v. P.L. Dani'® that
atrest of a woman shall be done as far as possible by a woman police
officer and investigation of a woman detenue the, only in the presence
of her lawyer and without using third degree methods. In Sheela Barse
v.State of Maharashtra’, for redressing the grievances of ara vio-
ence against women in police lock-ups, the Supreme Court directed
17 (1996) 3'SEJ592.
108 (1978) 2 SCC 424: 1978 SCC (Cri) 236. .
1 (1983) 2 SCC 96: 1983 SCC (Cri) 353; Sudama Devi v. Commr., (1983) 2 SCC 1.
541
for establishment of exclusively female lock-ups, separ
ation of female
arrestees from the male arrestees, investigation by female polic
e con-
stak & surprise visits to police lock-ups by Sessions Jiidge ‘for
inspection:InPratul Kumar Sinha v. State of Orissa*’, an allegation about
sexual exploitation of blind girl students in mercy home
was made,
and remedy was sought. The Supreme Court got an inquiry conducte
d
by a Chief Judicial Magistrate and found that there was only suspicion
and the allegation was not proved. The judgment is criticised for not
providing the remedy of readmission to the dismissed girl.
Vicarious liability of state to pay compensation to the victims of cus-
todialrape istaid déwn in P. Rathinam v. State of Gujarat". In this case,
a tribal woman was raped in police custody allegedly in the presence
of her husband. When the matter was brought to the attention of the
Supreme Court through writ petition by a social worker, the Court
appointed a Commission to find out the facts. It was reported that the
incident was true and the officers were guilty of inaction in the mat-
ter of prosecution of the wrong doer. The Court laid down a schedule
for systematic inquiry and awarded a compensation of Rs 50,000 as an
interim relief payable by the State Governplent immediately.
In Delhi Domestic Working Women’s Forum v. Union of India‘, the
Women’s Forum filed a Public Interest Litigation to espouse the cause
of four domestic servants who were subjected to indecent sexual
assault by seven army personnel. The victims were helpless tribal
women, who were in need of rehabilitative, quick and compensatory
justice. The Supreme Court conceded that speedy trial is a requirement
of just procedure and laid down the parameters. Concerning right to
compensation, the Court suggested that the National Commission for
Women may formulate a scheme of victim compensation in case of
rape and impress upon the Union Government to enact on those lines.
12.7.6 Rehabilitation of prostitutes and their children

for a dignified life
rehabilitate prostitutes and their chi ren. In Upendra Baxi (1) v. State of
Nee
ee aN \ ' \ 7
"© 1989 Supp (2) SCC 426: AIR 1989 SC 1783.

"1 1994 SCC (Cri) 1163
"2 (4995) 1 SCC 14.
ice |
542 tional
Constituer Policy and Development Towards Gender Just
e
C e e e
21 and U.P. Suppression of
U.P. the Supreme Court invoked Article
issued several orders
Immoral Traffic in Women and Girls Rules and It
protective home.
for improving the conditions of the inmates of the
th of inmates and
asked a panel of doctors to check the state of heal
available. The
ordered the superintendent to make medical treatment
sanitation,
Court ordered for ensuring better hygienic conditions and
iding of
separation of minor girls from hardened prostitutes and prov
vocational! training and guidance for self-employment.
In Vishal Jeet v. Union of India’s, the petitioner sought separate schools
for children ofprostitutes so that the children could lead a better life.
The Supreme Court constituted a committee of social workers and
ruled ultimately that “while we do not accept the plea for separate
hostels for the children, it is necessary that accommodation in hostels
and other reformatory homes shou ld
be adequa tely available to help
segregation Of these children from their mothers living in prostitute
homes as soon as they are identified”.
In Gauirav Jain I the Supreme Court ne cae ais te
ted by the Committee headed by V.C. Mahajan. The‘Committee Had
elaborately dealt with the active Tole Of NGOs in rehabilitating child
prostitutes and-children of prostitutes. It recommended to constitute
voluntary organisations, viz. Child Development and.Care Centres in
the prostitution-community-areas. Their objective would be providing
welfare arid development services to child prostitutes and children of
prostitutes, to wean them away from the surroundings, and counsel-
ling them for better occupational lives. They were to provide facili-
ties and services like pre-school education, creche, skill development,
health care, saving schemes, etc. About the general conditions and req-
uisites of the CDCC, their staff and specific functions. detailed meas-
ures were recommended. The Supreme Court directed the Minister of
Welfare, Government of India to constitute a committee to study the
problem and suggest suitable measures to effectively implement the
scheme of CDCC. According to the Court, institutional care and reha-
bilitation through juvenile home were necessary for child prostitutes.
While there was unanimity in the Divisional Bench of the Court on
these points, the directions framed Ramaswamy, J. in his leading judg-
ment about rehabilitation of prostitutes in general were not agreed to
by D.P. Wadhwa, J. as outside the scope of the instant case. Feminist
perspective in judicial thinking has come to the surface when it was
observed, “The prostitute has always been an object and was never
"8 (1983) 2 SCC 308. Also see, Upendra Baxi (II) v. State of U.P., (1986) 4 SCC 106: 1986
SCC (Cri) 381: AIR 1987 SC 191.
"4 (1990) 3 SCC 318: 1990 SCC (Cri) 482: AIR 1990 SC 1412.
"Gaurav Jain v. Union of India, (1997) 8 SCC 114.
Relevant
So en const ituti
pope onal provi
ae lS.sions and developments
SNCS , el ea ee 543
seen as complete human being with dignity of person;
as if she had
no needs of her own, individually and collectively. Their probl
ems are
compounded by coercion laid around them and tortuous
treatment
meted out to them. When they make attempts either to resist prost
itu-
tion or relieve themselves from the trap, they succumb to the viole
nt
treatment and resultantly many a one settle for prostitution."
The above judgments have adequately focused on the prohibition of
trafficking in human beings under Article 23 and protection of youth
against exploitation and moral and material abandonment envisaged
under Article 39. They have been successful in taking some positive
steps in improving the conditions of prostitutes and rehabilitating
them with a value goal of availing a dignified life for them.
12.7.7 Combating against sati and dowry death—Constitution’s

niente, eee ——
support
—————— Ueeecueseee —_—
ee me
Some of the cultural faults that accrued owing to patriarchy resulting

in women’s victimisation had to be dealt by a pro-life approach. In
All India Democratic Women’s Assn. & Janwadi Samiti v. Union of India™?,
the women’s organisation moved the Supreme Court through a Public
Interest Litigation to stop the “chunri” ceremony within Sri Raoi Satiji’s
mandir. The Court issued notices to all parties, and by an interim
order, prohibited the temple authorities from performing the “chunri”
ceremony. The enactment of Sati Prohibition Act, 1986 supported this
development.
The Dowry Prohibition (Amendment) Act, 1986 inserted Section
304-B IPC-relating
to the offence dewry.death.
of The penalty~pre-
SC or the offence ranges from seven years’ imprisonment.to life
imprisonment. Under Section 498-A cruelty to married woman which
includes willful conduct heb toe drive the wife to commit suicide
or endanger her life, limb or health or that includes dowry_harass-
mentsis punishable with imprisonment which may.extent to three
years’. Under Section 174 of Criminal Procedure Code investigation
of death of woman by suicide or in suspicious circumstances within
seven years’ of her marriage is required. The policy of the law isto
prevent and deter dowry deaths. It is extraordinary in that the initial
burden of proof is shifted upon the accused person. Under Section
113-A of the Indian Evidence Act, a presumption against the husband
or relative about abetment in case of commission of suicide within
seven years’ from the date of marriage may be constructed. On the
RS oRa
"6 Gaurav Jain v. Union of India, (1997) 8 SCC 114 at p. 119.

7 (1989) 2 SCC 411: AIR 1989 SC 1280.
Constitutional e
e
D T
whole, the entire procedure established by law.brims—with a pro-vic-
tim approach as a means of empowerment and justice.
hered the
‘in dowry death cases, by and large, the judiciary has furt
Supreme Court
policy of law. The observation by Mohan, J. for the
approach
in Paniben v. State of Gujarat'® broadly reflects the judicial
dowry
on the subject matter. He said, “Every time a case relating to
.
death comes up, it causes ripples in the pool of conscience of the court
than
Nothing could be more barbarous; nothing could be more heinous
this sort of crime. The root cause for killing young bride or daughter-
in-law is avarice and greed. All tender feelings, which alone make the
humanity noble, disappear from the article kindness which is the hall-
mark of human culture is buried.”
The above pro-dignified life approach made the judiciary to liber-
alise the rigours of evidentiary rules, insist on imposition of fitting
punishment upon the wrongdoers and activise the investigative and
prosecutorial agency towards strict implementation of law.
In Iqbal Singh case *°, where a woman committed suicide along with
her three children because of dowry harassment, the trial court and
Supreme Court relied on the evidences of neighbours and other cir-
cumstantial evidences and convicted the husband, the mother-in-law
and sister-in-law to seven years’ rigorous imprisonment. In State of U.P.
v. Ashok Kumar Srivastava'® while the trial court relied on the evidences
of neighbours and convicted the husband for abetment to commit sui-
cide, the High Court disbelieved the evidence as the names of wit-
nesses were not mentioned in the FIR. The Supreme Court reversed
the High Court decision and upheld the conviction, in Mulakh Raj v.
Satish Kumar" where a young lady of 20 years’ died after one year
of marriage in an alleged circumstance of suicide, the post-mortem
report showed that the death was due to strangulation and murder,
the husband was convicted for the ghastly offence of murder of his
wife. In Lichhamadevt v. State of Rajasthan’ the investigation had shown
that the mother-in-law had poured kerosene on her daughter-in-law
and ignited it. While the trial court considered the evidences as inade-
quate, the High Court found them sufficient to convict the accused.
The Supreme Court agreed with the High Court in relying on the evi-
dence adduced by the doctor who treated the victim and heard the
dying statement.
"8 (1992) 2 SCC 474: 1992 SCC (Cri) 403.

"State of Punjab v. Iqbal Singh, (1991) 3 SCC 1: 1991 SCC (Cri) 513.
120 (1992) 2 SCC 86: 1992 SCC (Cri) 241.
"21 (1992) 3 SCC 43: 1992 SCC (Cri) 482.
"2 (1988) 4 SCC 456: 1988 SCC (Cri) 978: AIR 1988 SC 1785.
DS a ae ieabitekennea evi 9)aiiene aaa’ 545
In Paniben’> while brushing aside the plea for sympathy towards
a culprit mother-in-law, the Apex Court observed, “we are clearly of
the opinion that it would be a travesty of justice if sympathy is shown
when such cruel act is committed. It is rather strange that the mother-
in-law who herself is a women should resort to killing another woman.
The language of deterrence must speak in that it may be conscious
reminder to the society. Undue sympathy would be harmful to the
cause of justice. It may even undermine the confidence in the efficacy
of law.”
While the legislature and judiciary have done a good job in this
sphere, the indifferent attitude of the investigating agency in some
cases should be deprecated. In Jt. Women’s Programme v. State of
Rajasthan"*4, a women’s organisation moved the Supreme Court through
Public Interest Litigation seeking deeper inquiry and objective inves-
tigation about an alleged dowry death. The Supreme Court found the
investigation made by the police in the case as totally inadequate. The
Court directed the states of Rajasthan and Haryana to get the investi-
gation conducted by an officer not below the rank of Superintendent
of Police. It was conceded in the case that although IPC and CrPC nor-
mally cover dowry deaths, Article 21 might be used to move the High
Courts or Supreme Court divedtiv, Sspettally where inaction by the
staff arises-because Of the’stispicious role of police and medical wit-
nesses: The Courtalso directed the State Government to create special
deWry~cell with special investigation units to investigate into dowry
deaths. It also directed to include two leading woman social workers
named by. the Social Welfare Ministry in such dowry cells. The case
is a landmark in the feminist jurisprudence because police inaction
could be remedied and administrative machinery alerted through the
weapon of Public Interest Litigation. It is also significant in the context
of women’s movement that the women’s organisations have the great
potentiality in using PIL.
12.7.8 Female foeticide and the Constitution

The 18th and 1gth century practices of female infanticide could be
largely controlled by a bold reformatory legislation of mid nineteenth
century and enlightened public opinion. However, public opinion
could not be strong enough to check the imbalanced ratio of infant
mortality of girl child. ; . ‘Kala
During the last twodecades, owing to innovations in medica -
ence Stn of sex of ensTisens has become a possibility. It
EE
123 Pey Mohan, J. (1992) 2 SCC 474: AIR 1992 SC 1817.

124 1987 Supp SCC 707: AIR 1987 SC 2060.
546 Constitutional Policy and Development Towards Gender Justice
hm a ai as a Daa HaiBS PEI
has given rise to the prejudicial practice ofaborting,the irl oetus.
A pecinamien oheomenie ationisumisdue sin togthis devel-
a Sen. Under the Medical Termination
opment according, to Amarty
of Pregnancy Act, 1971, the anguish caused by unwanted pregnancy
because of failure of contraceptive device or method is an easy ground
for termination of pregnancy during the first trimester of pregnancy.
It seems, this provision is abused for termination of female foetus. No
doubt this negates the right to life of the female embryo. Some of the
states where the practice is rampant, legal prohibition of disclosure of
sex of the foetus has been imposed._The Parliament.enacted the.Pre-
natal Diagnostic Techniques (Regulation and Prevention of Misuse)
Act, 1994 to comprehensively deal with the evil practice. Section 6 of
the Act provides, “On and from the commencement of this Act, (a) no
Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic
shall conduct or cause to be conducted in its Centre, Laboratory or
Clinic, pre-natal diagnostic techniques including «ultrasonography,
for the purpose of determining the sex of a foetus; (b) no person shall
conduct or cause to be conducted any pre-natal diagnostic techniques
including ultrasonography for the purpose of determining the sex of
a foetus.” According to Section 5(2), “No person including the person-
conducting pre-natal diagnostic procedures shall communicate to the
pregnant woman concerned or her relatives or any other person the
sex of the foetus by words, signs or in any other manner.” The Act
provides for supervision Sf genetic counselling centres, laboratories
or clinics through the system of registration, functioning of Central
Supervisory Board and prohibition of pre-natal diagnostic techniques
except for treating genetic abnormalities. In Centre for Enquiry into
Health & Allied Themes (CEHAT) v. Union of India®* the Supreme Court
issued directions to the Central Government to create public awareness
against the practice of pre-natal sex determination and implement the
Act with all vigour and zeal. It directed the Central Supervisory Board
to review and monitor the implementation of the Act by involving the
states. The states were asked to ensure strict compliance with the Act
in the background of clandestine and extensive violation of this provi-
sion resulting in decline in the ratio of female children. It is necessary
that there should be a foolproof legal network and supervision for pre-
vention of female foeticide.
Amartya Sen, “Gender and Cooperative Conflict” in Tinker (Ed.), Persistent

Inequalities: Women and World Development (1989) at pp. 123, 149.
26 (2003) 8 SCC 398: AIR 2003 SC 3309; also see, Bhavani Prasad Panda, “The Foetus:
from Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act,
1994 to the Pre-Conception and the Prenatal Diagnostic Techniques (Prohibition of
Sex Selection) Act to CEHAT 2003” in AIR Journal (2004) at p. 257.
REE SRR SES i SES SCRGN SWEATS Wit ea a nae
12.7.9 Constitutional policy against rape

Anti-subordination interpretation of the law of rape is a specific
instance of infusing constitutional values into it, and make it pro-
woman in orientation and effect. The dominance analysis about the
Indian women made by the Supreme Court in Bodhisattwa Gautam v.
Subhra Chakraborty’, pointed out social barriers, impediments and tyr-
anny by males that made women really unequal. Looking to the social
and personal side of the crime, the Court observed, “It (rape) is a crime
against basic human rights and is also violative of the victim’s most
cherished of the Fundamental Rights, namely, the Right to Life-con-
tained‘in Article 21...The rape laws do not, unfortunately, take care of
the social aspect of the matter and are inept in many ways.” As viewed
by Arijit Pasayat, J. in State of Punjab v. Ramdev Singh*® sexual crimes
should be dealt with utmost sensitivity, as they constitute serious blow
on woman’s honour, self-esteem and dignity. When the victim is a
helpless child, minor or insane, it is traumatic too. In Chandrima Das’,
_setting the -asi that a foreigner wom
argument de who
an,was victim’ ~
of rape by railway..men,.could not claim Fundamental Right under
Articles 15, 16 and 19, the Supreme Court awarded compensation of
Rs 10 lakhs under Article 21 of the Constitution. Rajasthan High Court
acted suo motu in case of rape of a German tourist to provide similar
remedy.’° The feminist vision has helped in infusing human rights
values into the rape law. |
On the whole, protective role of the legal system in safeguarding
women’s life and personal liberty has fulfilled the objective underly-
ing Article 21 by influencing the procedural and substantive law to
absorb the principles and ethos of social justice.
12.7.10 Control over pornography

Morality and decency are the permissible grounds for imposition of
reasonable restrictions through law under Article 19(2) upon expres-
sional freedom. In.the.context of gender justice, state’s regulatory meas-
ures on harmful expressions or representations of women in media
of public life have-incorporated-ar interventionist role, although not
amounting to setting the standards of morality at an unreachable
level. Constitutional jurisprudence on pornography has tended to
limit the interventionist role of state to favour expressional freedom.
The Supreme Court’s approach as reflected in Chandrakant Kalyandas
27 (1996) 1 SCC 490 at p. 500.

128 (2004) 1 SCC 421.
2000 SC 988.
129 Railway Board v. Chandrima Das, (2000) 2 SCC 465: AIR
30 Db cwp 2856/2005 June 2005.
548 and Developmen
al PolicyAAR
Constitutionce t TowardsEEGender Justice
ca iin n
NE INSEEe ESN
Kakodkar3* and other cases is, “What we have to see is that whether a
class, not an isolated case, into whose hands the book, article or the
story falls suffer in their moral outlook or become depraved by read-
ing it or might have impure and lecherous thoughts aroused in their
minds. The charge of obscenity, must, therefore, be judged from this
aspect.” It is submitted, this narrows down the judicial scrutiny as it
ignores the way in which woman is abused in the production of por-
nography and the way in which the overall impact of objectionable
materials is likely to lower the image of woman into an object of pleas-
ure, and thus gradually provoke aggressive male sexuality.'* Looking
only from the angle of protection from corruption of public morals”
falls short of a standard required for protection of women. |
12.7.11 Protection from abuse of religious freedom

Some of the unusual religious beliefs and practices that treat women
in degrading manner like temple prostitution, nude worship or sacri-
fice of children can have no place because either they do not constitute
essential aspect of religion or they are subject to other Fundamental
Rights like right to dignified life. Gender bias practiced in the realm
of religious freedom especially in matters relating to access to place of
worship needs to be looked from different perspective." |
i272 Right to constituticnal remedy

The guarantee of right to constitutional remedy under Article 32 has
enabled all the aggrieved persons to seek writ and other remedies from
the Supreme Court. The growth of Public Interest Litigation and judi-
cial activism has helped woman organisations and individuals to use
the sword of remedies for attaining gender justice. A top-level judicial
activism supporting the interests of women can be seen in cases like
Vishaka.
12.7.13_ Directive Principles of State Policy and women

The elevation of the position of the Directive Principles in constitu-
tional jurisprudence from relative insignificance to that of important
set of inevitable values in recent decades could wield its own influ-
'! Chandrakant Kalyandas Kakodkar v. State of Maharashtra, (1969) 2 SCC 687: AIR 1970
SC 1390; Ramesh Yeshwant Prabhoo (Dr.) v. Prabhakar Kashinath Kunte, (1996):1 SCC A130:
AIR 1996 SC 1113; Ranjit D. Udeshi v. State ofMaharashtra, AIR 1965 SC 881.
'? Hilaire Barnett, Introduction to Feminist Jurisprudence (Cavendish Publishin
g,
London 1998) at pp. 282-95.
133 See, S. Mahendran v. Secy., Travancore Devaswom Board, AIR 1993 Ker 42 where
denial of access was justified on account of reasonable classification and tradition.
Relevant
iS SAE consti tutional provisions and developments
coeten ROL SORTER, RivaURS AIS attic, ata ar549
ence upon protection of interests of women.34 Some of the provis
ions
touching the interests of women can be looked to for appreciating the
constitutional concern.
While Article 38() ordains the State to strive to promote the welfare
of people by securing a social order in which justice, social, economic
and political, shall inform all the institutions of national life, Article
38(2) states, “The State, in particular, strive to minimise the inequali-
ties in income, and endeavour to eliminate inequalities in status, facili-
ties and opportunities, not only amongst individuals but also among
groups of people residing in different areas or engaged in different
vocations.’ accorong 9 Article.39, the state shall, in particular, direct
7
its policy towards securing:

(i)_that the citizens, men and women equally have the right to
“adequate means of livelihood [Article 39(a)];
(i) that thereis equal pay forequal work for both men and women
[Article 39(d)];
(iii) that the health and strength of workers, men and women, at
the tender age of children are not abused and that citizens
are not forced by economic necessity to enter evocations
unsuited to their age or strength [Article 39(e)]; and
(iv) that childhood and youth are protected against exploitation
and against moral and material abandonment [Article 39(f)].
Enactment of. Equal Remuneration. Act, 1976 has tried to effectuate
the objective of Article 39(d). It provides for payment of equal remu-
nefation to-both men and women workers forthe same work or work
of similar nature and for the prevention of discrimination against
women in the matter of recruitment and employment opportunities.
Non-observance of the Act by the government. contractors. violates
Article 14.5 The clause relating to protection against moral and mate-
tial abandonment has been applied in cases relating to rehabilitation
of child prostitutes and children of prostitutes.’°
State is obligated under Article 41 to secure right to work, to educa-
tion and to public assistance in cases of unemployment, old age, sick-
ness and disablement and in other cases of undeserved want. Article
42 says,.The state shall make provision for securing just and humane
conditions of work and for maternity relief” For implementing this
provision Maternity Benefit Act, 1961 was enacted. This obligates the
134 While in State ofMadras v. Champakam Dorairajan, AIR 1951 SC 226 it was held that
Part IV shall run subordinate to Part III, in Kesavananda Bharati v. State of Kerala, (1973) 4
SCC 225: AIR 1973 SC 1461 and onwards both were regarded as complementary.
135 People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235: 1982 SCC
(L&S) 275. | ,
v.
136 Vishal Jeet v. Union of India, (1990) 3 SCC 318: 1990 SCC (Cri) 482; Gaurav Jain
Union of India, 1990 Supp SCC 709: AIR 1990 SC 292.
Constitutional e
Se O
before and
employers to provide maternity leave for six.weeks each
expenses.
after the deliyery of child and reimbursement of medical
Article
The reasoning in Vishaka was developed partly on the basis of
2:
: The Directive on Uniform Civil Code is aspired by the Constitution
make 3epromote the interests of Women. According'to Article 44,
“T Restate shall endeavour to secure for the citizens a uniform civil
code throughout the territory of India.” In practice,.nQ substantive
progress.is made so far through legislative effort. In Shah Bano‘? the
Supreme Court regretted that Article 44 remained as a dead letter and
extended Section 125 CrPC to Muslim women divorcees. Palpably to
undo the effect of Shah Bano the Muslim Women (Protection of Rights
on Divorce) Act, 1986 was passed. Reading down the Section 3 of the
Act, in Danial Latifi'®, the Supreme Court ruled that a Muslim hus-
band is liable to make provision for maintenance of the divorced wife
even after the iddat period. In Sarla Mudgal'® and Jorden Diengdeh™” the
Court emphasised the need to have Uniform Civil Code in the country
in the overriding social interest.
Article 46 enjoins, “The State shall promote with special care the
educational and economic interests of the weaker sections of the peo-
ple, and in particular, the Scheduled Castes and Scheduled Tribes, and
shall protect them from social injustice and all forms of exploitation.”
Since women constitute weaker section in each social category because
of the practice of patriarch.c norms such special care is constitution-
ally called for.
AnotherDirective of seminal importance for gender justice is Article
51(e). that obligates the State to foster respect for international law and
treaty obligationsin the-dealings of organised peoples with one another.
Since international human rights norms are rich in gender justice prin-
ciple, their percolating effect upon the Indian domestic law is of high
order. This can be seen in cases like Vishaka, Madhu Kishwar and Danial
Latifi cases where reference to the international instruments have been
made for arriving at comfortable result.
12.7.14 Fundamental duties and gender justice

The technique of building harmonious and happy society through
imposition of fundamental duties in citizen’s conduct is employed
under Article 51-A with a belief that universal performance of duties
towards all better protects rights. Article 51-A(e) imposes duty to
‘7 Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556: AIR 1985 SC 945.
88 Danial Latifi v. Union of India, (2001) 7 SCC 740: AIR 2001 SC 3958.
9 Sarla Mudgal v. Union of India, (1995) 3 SCC 635.
'0 Jorden Diengdeh v. S.S. Chopra, (1985) 3 SCC 62: AIR 1985 SC 935.
Relevant
Papi consti tution
oo eeal provis ions and developments
SSRYeRSV. Sne s, sh A Rea 551
PRPS pracsss derogatory to.the dignity of women. The duty
to
cherish and follow the noble ideals, which inspired our national strug-
gle for freedom [Article 51-A(b)], also hints about treating women
as
equal partners in all spheres of life. It is clear beyond all doubts that
women’s emancipation was regarded by freedom fighters as one of
the paramount objectives. There is also-duty.to strive towards excel-
lence in all spheres of individual and colléctive activity so that the
nation constantly rises to higher levels of endeavour and achievement
[Article 51-A(f)]. Since women constitute almost half the population
of the country, exceliéncein individual and collective activity would
require determined effort to uphold the status of women. Without that
the ‘nation cannot rise to higher levels.of attainment. As Observed by
R.N. Lahoti,J,“Fundamental duties, though not enforceable by a writ
of the court, yet provide a valuable guide and aid to interpretation
of constitutional and legal issues.’”“** They have immense educational
values and potentiality of changing. the-minds peopl
et_e towar
ofds
women.
—a-_"
12.7.15 Democratic participation and reservation for women

Parliamentary democracy as an instrument of social change will serve
its réal ptirpose if the composition of legislature is broadly reflecting
the structure of the adult population. ho ts Copstinution
provides that no.person shall be ineligible fofin¢lusion in any electoral
roll on grounds only of religion, race, caste, sex or any of them. This
guarantees formal equality in political participation. The composition
of’Parliament and state legislatures since the commencement of the
Constitution remained such that only less than 10 per cent of the seats
were occupied by women. If law-making process were to be influenced
by considerations of gender justice, such a low composition and_par-
ticipation of women members is not complementary to.the task. Atthe
grass root levels of democratic institutions like panchayats and munic-
ipal bodies, the policy of reservation for women is prescribed through
the 73rd and 74th Constitutional Amendments. Relevant provisions
(Articles 243-C and 243-T) compel the states to provide for reservation
of 1/3 of seats for women both generally and within the reserved cat-
egories for Scheduled Castes and Scheduled Tribes and_in the posi-
of
tions Chairperson and Vice-Chairperson. It is hoped that local self-
government will become vibrant and dynamic institution striving
towards gender justice, since women and child development Is a sub-
ject figuring in the Eleventh and Twelfth Schedules to the Constitution
and making the local bodies to act towards this goal.
141 ATIMS Students’ Union v. AIIMS, (2002) 1 SCC 428 at p. 458.

ABM AA p ‘
| |
AP
re
a
YS
he
hf AY
a) #
and Development Toward s Gender Justice

L
552 ConstitutionalaPolicy7,aeR O, SARIS RIOTS EES

em teet
There were certain aborted efforts to introduce constitutional
amendment providing for reservation to women in the elected bodies
like"Parliament.and State Legislatures. Beqause of stiff oppositionto
the. Women Reservation Bill, apparently on account of lack of inter-
nal structuring to satisfy all the sections of society, the Bill did not
pass the bridge. Lack of political will and the tradition of patriarchy
obstructed its passage. This illustrates again how social, political and
cultural factors cause constraints to progressive changes.
12.8 Conclusion
Gender justice is a revolutionary concept of multidimensional strategy
and impact. As a part of the scheme of justice its roots in human rights
and welfare policies are well-established. Benevolence for women is
a major factor in the cultural ethos of India, although it had also the
fate of distortions and obstructions due to patriarchic approach. In
the background of pathetic social realities about gender injustices, the
Constitution set a visible trend for women’s development. The image
of activist state is clear. The plan of amelioration is comprehensive.
The guidance to and monitoring of the legal system are well tuned.
Legislations also support the gender justice goal either through special
statutes or general ones. The overall judicial contribution is also sup-
plementing the constitutional objectives. “So long as society remains
riddled with power disparities between men and women, and so long
as patriarchy remains deeply embedded to the culture, formal equal-
ity theory will fail to achieve gender justice.’“# But the Indian judiciary
has shown willingness to deviate from adherence to formal equality
theory in search of true equality by employing a more result-oriented
methodology for positive protection and corrective action. What is
required most essentially is a pro-woman mindset in the people who
have to apply and follow the legal regime towards the goal of gender
justice.
'? Eileen Kaufman, “Women and Law: A Comparative Analysis of the United
States and Indian Supreme Court’s Equality Jurisprudence” (2006) 34 GA. J. Int’l &
Comp. L, 557 at p. 618.
CHAPTER 13
canieaiaamnananeaeeaeeeeeel
seeaeatannienaeeee
CRIMES AGAINST WOMEN AND LAW’S

RESPONSE THERETO
13.1 Introduction
Violence against women is regarded as a necessary concomitant of
the generally oppressed position to which women are Subdued in the
sotial Structure.’ Patriarchal bias, powerlessness and dépendencé have
put them into a vulnerable position and made men unjustifiably supe-
rior, owing to which crimes against women galore.” Violence is always
opposed to reason and tolerance, and undermines human rights and
welfare. Law, representing the latter, should employ all means to
curb the violence and protect the victim. Sincerity of a legal system’s
concern for women’s protection should be exhibited in the efficacy
of criminal law in sternly dealing with the crimes against women.
Protection of life and personal liberty through legal procedure will be
meaningful to women only when an atmosphere free from violence
is created through rule of law. About the disturbing trend of devel-
opment in this sphere, what Justice Dr. A.S. Anand has observed in
Kundula Bala Subrahmanyam in the context of dowry death is worth not-
ing as it holds good for other crimes as well. He said, “Of late there
has been an alarming increase in cases relating to harassment, torture,
abetted suicide and dowry death of young innocent brides. This grow-
ing cult of violence and exploitation of the young brides, though keeps
1 MDA Freeman, “Violence against women: Does the legal system provide solutions
or itself constitute the problem?” (1981) Journal of Legal Studies 215 at pp. 216-17,
(once in
2 Dowry death (once in every 1000 minutes) increasing number of rape
in every 26 minutes) have been superad ded
every 54 minutes) and molestations (once
by male bias in family law and criminal law.
554 Crimes against Women and Law’s Response Thereto
ee
Oe ET
happens,
on sending shock waves to the civilised society whenever it
human
continues unabated. There is a constant erosion of the basic
-
values of tolerance and the spirit of “live and let live”. Lack of educa
ndy
tion and economic dependence of women have encouraged theee
perpetrators of the crime.” | |
Crimes against womer-occur both within the home and outside
the domestic walls. They range fromassault to deprivation of life, and
from indecency to ravishing the woman’s honour by rape. The crimes
are dealt under the general law like Indian Penal Code and special
statutes enacted to deal with specific crimes like dowry and domestic
violence. This chapter discusses trends of legal development in these
spheres from the perspective of promotion of gender justice and a
desirable change. It also analyses the role of the National Commission
for Women for protecting the interests of women.
13.2 Domestic ogaee
It is unfortunate that home, the sweet home, the abode of rich and
complex feelings and a place of retreat for protective sphere of fam-
ily life, could be a very dangerous place-for-women.* Instead of giv-
ing }protective shade by being a sanctuary
of tranquility and harmony,
family has become in many situations breeding ground of violence
against women in the hands of their ownrelations. Domestic violence,
being incongruity in terms:and gender neutral in words, is frequently _
common law? Rule of thumb represented that the husband had the
right to beat his wife so long as he used a stick no thicker than his
thumb.° Blackstone recognised husband's right to give his wife moder-
ate correction by domestic chastisement to prevent her misbehaviour?
The practice was prevalent in lower ranks of people, and continued
although sparsely in 20th century England with a rider that the beat-
ing should not be violent or cruel. In Meacher v. Meacher®, the Court of
* A.S. Anand, Justice

forWomen (Universal, New Delhi 2002) at p. 8.
* Michelle Adams, “Knowing your place: Theorising Sexual Harassment in
Workplace” (1998) 40 Arizona Law Review 23 at p. 25, argues for distinction between
sexual harassment outside the home and that within the home whether by family
members or outsiders.
° Dobash and Dobash, Violence Against Women (1980) Ch. 4 cited by MDA Freeman
at p. 238.
° Eisenberg and Micklow, “The Assaulted Wife: ‘Catch 22’ Revisited” (1977) 3
Women’s Rights Law Reporter 138 at p. 161.
’ Blackstone, Commentaries on the Law of England (1765); see also, MDA Freeman, at
p. 239.
® (1946) 2 All ER 307.
Domestic violence
OS A EER RSTORI ieeOae R ca 555
Appeals declined to uphold husband’s right to assault his wife
when
she refused to obey his orders not to visit her relations. But some cases
In 1959 and 1975 support husband’s privilege so long as its effect
was
moderate? Anyway, the traditional rule reflected subordinate position
of women in family and other social institutions.
In India, the ancient law given by Manu and Yajnavalkya entrusted
the responsibili of protect
ty ing females upon-father, husband and son
at various-stages-of-life."° The parental and quasi-parental right on the
part of father and husband to protect from evils is the basis for mild
disciplines in theinterests of the woman and family itself. Wife’s duty
to act according to the reasonable words of the husband also subjected”
her-to-some amount of regimentatio Butn.
this is a reciprocal duty in
marriage as it is also provided in Manu Smriti that husband shall not
only maintain his wife but also treat the wife with respect." It was
considered by Narada that wife was half of the husband, and the very
wealth of him.” In the circumstance of adultery by wife she was com-
pelled to undergo penance or disentitlements rather than beating.”
On the whole, absolute privilege of wife beating was not the spirit of
ancient Indian law.
TheMadras High Court discussed legality of wife beating in Subbiah
Gounden case in 1936," The Session Judge of Madura District Court had
exempted the husband from criminal liability for beating his wife,
as the husband had right to batter his wife. Categorically denying
any foundation for such a legal proposition, the Madras High Court
observed, “No.such unqualified right is nowadays recognised by the
law and wife beating-is not.eo nomine one of the exceptionsin the
General Chapter in the Indian Penal Code.” The Court stated that no
one should rely on the Sessions Court judgment in future as a justifica-
tion for wife-beating. Gandhiji hailed this judgment as a fitting attack
on a remnant of barbarism. The implication of Subbiah Gounden judg-
consent, in order to the committing of any offence, or intending by the

9 McKenzie v. McKenzie, The Times, 5-6-1959; see also, MDA Freeman, at p. 240.
Yaj. Smriti, 1-85-6: “Rakshetkanyaam pitaa vinnaam patih putraa sscha
vaardhake I Abhaave jnaataya steshaam na swaatantryam kwachit striyaa.
"Manu Smriti, IX-95 at pp. 101-02.
2 Narada Smriti Jolly, Retranslation of Sacred Books of the East, Vol. XXXII at pp. 165-
Tripathi,
84; see also, M. Rama Jois, Constitutional and Legal History of India, Vol. 1 ‘N.M.
Bombay, 1984) at pp. 254-57.
13 iB
Se aes) Such is the Law: Collection of weekly writings in The Hindu (The
Law Weekly Office, Madras 1992) at pp. 16-19.
556 Crimes against Women and Law’s Response Theret o
a ce e iD MAR SESEERECEIEIG BSS Resse SSS
use of such force to cause, or knowing it to be likely that by the use
of such force he will cause injury, fear or annoyance to the person to
whom the force is used, is said to use criminal force.” Since marriage is
nota factor that amounts to giving of consent for the purpose of Section
350, wife beating can be brought within the ambit of Section 350. But
use of the phrase “no such unqualified right” in Subbiah Gounden judg-
ment hints that the husband has a qualified right of wife beating in
justifiable circumstances. The position is different after the Domestic
Violence Act, 2005. The fact that women seldom resort to general law
like IPC owing to family relationship; dependency, tack-of-legal lit-
eracy or helplessness does not mean absence of legal remedy. But it is
a fact that calls for a comprehensive legal scheme for protection from
domestic violence.
Domestic violence in a wider sense includes all types of physical
and mental cruelties, and use of force upon any-members of family
by itsother members. In a limited or technical sense it means cruelty
against female member of the family by other members. Undoubtedly,
it involves human rights issue and is a serious obstruction to devel-
opment. According to Poornima Advani, “It (domestic violence) is
pernicious because it is directed against women who are supposed
to carry the generations forward and goes against all canons of civi-
lised behaviour. It is insidious because it takes place within the closed
walls of the home, which is supposed to be the safe sanctuary for its
occupants.” Social norias of subordination, economic dependence
upon perpetrators of violence and helplessness because of non-inter-
ference by third parties compel the women to silently tolerate the vio-
lence. The growing menace of dowry harassment has aggravated the
problem of domestic violence.
CEDAW has recommended that State parties should act to protect
women against violence of any kind especially that occurring within
the family. The Vienna Accord of 1994 and the Beijing Platform of
Action (1995) reiterated this. policy. The phenomenon of domestic vio-
lence is widely prevalent but has largely-remained invisible in the
public domain. In view of this and also realising the serious inadequa-
cies in the present law, in 1994 an Expert Committee on laws drafted
the Domestic Violence to Women (Prevention) Bill. There was also
widespread demand for comprehensive legislation on the subject by
various women’s organisations. In 1997-98 the National Commission
for Women forwarded its draft to the Union Government;which was
tabled in Parliament-as_the Protection from-Domestic-Violence Bill,
2002. The Bill was referred to Standing Committee of the HRD, and
'S Poornima Advani, “Curbing domestic violence: Inching forward” The Hindu, 27-
6-2005.
Domestic violence
sa
ee eee a 557
ed
conduct of the respondent shall constitute domestic violence in case

it:
(a) harms or injures or endanger the health,
s safety, life, limb
or well-being, whether mental or physical, of the aggrieved
person or tends to do so and includes causing physical abuse,
sexual abuse, verbal-and—emotional_abuse and economic
abuse; or Ve,
(b) harasses, harms, injures or endangers the aggrieved person
with a view to coerce her or any other person related to her
to meet any unlawful demand for any dowry or other prop-
erty or valuable security; or
(c) has the effect of threatening the aggrieved person or any per-
son relatedto her by any conduct mentioned in clause (a) or
clause (b); or
(d) otherwise injures or causes harm, whether physical or men-
tal, to the aggrieved person.
'¢ “Physical abuse” means any act or conduct which is of such a nature as to cause
bodily pain, harm, or danger to life, limb, or health or impair the health or development
of the aggrieved person and includes assault, criminal intimidation and criminal
force. “Sexual abuse” includes any conduct of a sexual nature that abuses, humiliates,
degrades or otherwise violates the dignity of woman. “Verbal and emotional abuse”
includes:
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with
regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved
person is interested.
“Economic abuse” includes:
(a) deprivation of all or any economic or financial resources to which the aggrieved
person is entitled under any law or custom whether payable under an order of
a court or otherwise or which the aggrieved person requires out of necessity
including, but not limited to, household necessities for the aggrieved person
and her children, if any, stridhan, property, jointly or separately owned by
the aggrieved person, payment of rental related to the shared household and
maintenance;
558 Crimes against Women e and Law's Response Thereto
Pein O
has been, ina
“Respondent” means any adult male person who is, or
st whom
domestic relationship with the aggrieved person and again
ion 2(q)]
the aggrieved person has sought any relief under this Act [Sect
“Domestic relationship” means a relationship between two persons
-
who live or have, at any point of time, lived together in a shared house
hold, when they are related by consanguinity, marriage, or through a
relationship in the nature of marriage, adoption or are family mem-
bers living together as a joint family (Section 2(f)).
It provides for the rights of women to secure housing. It also pro-
the
fores
vid right of a woman to reside in her matrimonial home or
shared household, whether or not she has any title or rights in such
Home or household. This right is secured by a residence order, which
is passed by the Magistrate (Section 17).
It empowers the Magistrate te pass protection orders in favour of
the agstieved person to prevent the respondent from aiding or com-
mitting“an act of domestic violence or any other specified act, enter-
ing a workplace or any other place frequented by the aggrieved per-
son, attempting to communicate with her, isolating any assets used
by both the parties and causing violence to the aggrieved person, her
relatives or others who provide her assistance from the domestic vio-
lence (Section 18)“
It provides for appointment of Protection Officers and registration
of non-governmental organisations as service providers for providing
assistance to the aggrieved person with respect to her medical exami-
nation, obtaining legal aid, safe shelter, etc. (Sections 8, 9 and 10).
The Act has a progressive approach of protecting the victims of
domestic violence from the trauma, by providing shelter, freedom
from fear, economic support, medical reliéfand Tegal help to overcome
the-problem and stand independently with dignity (Sections 18, 19
and 20). Regarding sexual abuse, although it does not use the same
terminology as that of Vishaka guidelines, the words used in the defi-
nition can be more appropriately understood in that sense with a crea-
tive interpretation. The policy of law to provide a meaningful role for
NGOs, and a right of complaining about domestic violence upon any
person acting in responsible manner (Sections 10 and 12) involves a
(b) disposal of household effects, any alienation of assets whether movable or

immovable, valuables, shares, securities, bonds and the like or other property in
which the aggrieved person has an interest or is entitled to use by virtue of the
domestic relationship or which may be reasonably required by the aggrieved
person or her children or her stridhan or any other property jointly or separately
held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the
aggrieved person is entitled to use or enjoy by virtue of the domestic relationship
including access to the shared household.
Legal prohib
Ea ition aa
of sati
a RR Si ie ee i rrr 559
ky
social-participative approach, and relies on people’s support to make
the social mission of law, a great success. This has added strength to
combat the problem of dowry harassment.
13.3 Legal prohibition of sati

The practice of sati—of burning or occasionally burying a widow alive
with her deceased husband—is ancient evil grew through distortions
of shastras and assertion of patriarchal controls. According to PV. Kane,
“there is no vedic passage which can be cited as incontrovertibly refer-
ring to widow burning as then current nor is there any mantra which
could be said to have been repeated in very ancient times at such burn-
ing nor do the ancient grihyasutraa contain any direction prescribing
the procedure of widow burning.”” A.L. Basham refers to symbolic
duty of widow in Rigveda to pay last respect to her departed husband
but not the practice of sati.** Permissibility of widow remarriage in
this period rules out the practice
of sati’ It is difficult to find legiti-
mate place for the practice in a culture, which has primarily a pro-life
orientation. During the Dharmasutra period (400 BC-100 AD) Vishnu
Purana contained reference to sati.° The epic period saw inconsistent
le RI
approaches to this practice. Manu and Yajnavalkya Smriti (tooAD-300

AD) strongly recommended for widows-a pure, chaste and austere life,
and suggested
for sati in case of impossibility of such a course.”" The
practicé
Of Sati was confined to Kshatriya and Brahmana castes. There
ing Vardhana period.” Literary works of Bana and Devanna Bhatta

deplore the practice.*? The practice of jauhar or mass sati by Rajput
ladies to protect their honour after the death of their soldier-husbands
points out the over-protective approach to female sexuality.”
During the medieval period, some of the Muslim kings like
Muhammad-bin-Tughlag and Humayun took strong exception to this
practice as inhuman and imposed hurdles to the practice by requiring
royal assent for the same or strict proof about voluntary consent of
7 PV, Kane, History of Dharmashastra, Vol. II (Part I) at p. 625, A.S. Altekar, The
Position of Hindu Women in Hindu Civilisation, at p. 136; see also, Uma Shankar Jha and
Premlata Pujari, Indian Women Today, Vol. II (Kanishka Publishers and Distributors,
18 AL. Basham, The Wonder that was India, at p. 187.
19 Romila Thapar, History of India, Vol. I.
by Greek
20 PV. Kane, ik n. - 2 p. 625; its practice in 326 BC was testified
invaders.
21 Yaj., 1-86.
2 Uma Shankar Jha and Premlata Pujari, supra, n. 17 at p. 35.
3 bid.
4 Ibid, at p. 36.
Te
and rescued some
the widows Akbar discouraged the practice of sati
en-
widows from the practice. He commented, “It is a strange comm nce
vera
taryon the magnanimity of men that they should see their deli
y sati
through self-sacrifice of their wives.”” Prohibition of involuntar
the prac-
and requirement of prior permission for voluntary sati was
in
tice continued during subsequent period until its ultimate abolition
1829 by the British.
The British policy on sati was initially obsessed by sense of cultural
superiority and white man’s assumed role of purging barbaric prac-
tices. While documentation of instances of sati was helpful_in creat-
ing public opinion in India and Britain against its practice, the politi-
cal strategy was hesitant for decisive action for its abolition in 1805 in
fear of alarm and dissatisfaction in the minds of Hindus. The Nizamat
Adalat asked judicial officials to secure advance notice of occurrence
of a sati, then to depute police officers to proceed personally to the site
in order to ensure that sati is performed voluntarily and not under
the influence of drugs or intoxicants or coercion; and to establish that
youth or the state of pregnancy of widow did not violate the norms.”
The official astatistics showe d that the - averag- e per year e occurr
heat
ence of
a t
sati amounted to’576 during the period between 1815 and 1828 and go
bh
per cent of instances took place’in Bengal, where Dayabhaga law recog-
nising widow’s interest in deceased husband's property prevailed.
The British campaign against the practice of sati culminated in a
big development. Sir William Bentinck, the then Governor General
of India and liberal thinking reformer,
on his own initiative
and on
the persuasive influence of Raja Ram Mohan Roy, initiated the law for
total abolition of the practice of sati. The Regulation XVII promulgated
in 1829 declared “the practice of suttee, or burning or burying alive the
widows of Hindus, illegal and punishable by the criminal courts.” It
was dealt in the samé way as culpable homicide. Even persons aiding
and abetting sati Were to be punished
by fine or imprisonment or both.
The enactment of the law was not smooth at the teeth of opposition by
the orthodox section of Bengal, which resorted to signature campaign,
petition and media propaganda. The progressive section headed by
Raja Ram Mohan Roy, by educating the public in favour of the law,
resisted this and tried to consolidate public opinion in favour of the
law. Regarding administrative action in support of the law, unique
strategy was evolved. Continuing the pre-1829 policy, the practices
of getting advance notice“of the sati possibility through local officers,
deploying the police by the collector to the spot for prevention of sati,
™,
*° K.M. Ashraf, Life and Conditions of People of Hindustan, at p. 192.

© Ibid.
7 Uma Shankar Jha and Premlata Pujari, supra, n. 17 at p. 48.
Legal prohibition of sati
561
and warning about the consequences of law were resorted to.
As a
eee eeedecade the average sati instances got reduced to neg:
ligible numbers.** The methodology employed in this development is —
highly educative about the role of the local bureaucracy and creation
of timely public opinion and alarm to sternly deal with the crime by
preventive action.
The 1829 Regulation (on Satipratha Abolition) obliged the crimi-
nal courts to deal with sati as any other crime. The sati practice in
Rajasthan was dealt by laws of British princely states of Marwar,
Jodhpur and Mewar. Other states of Rajasthan followed the anti-sati
policy. The frequent occurrence of sati in Mewar was responded by
subjecting the abettors to severe penalties, confiscation of property and
fine on the community. The Bengal Regulation was adopted in other
British Presidencies too. Abetment to commit suicide was the common
_ offence essentially involved in the practice. Later, when the Indian
Penal Code was enacted, this came to be governed tinder Section 306,
Twoteported casésOn abetment to-sati coming from Patna (1928) and
Rajasthan (1958) High Courts reveal about the ghastly conduct of the
abettors and the mob, and the difficulty involved in prevention of the
crime by a handful of police personnel. While in the former case, the
police were misled by deceitful ploy, in the latter case the police were
rendered helpless by an uncontrollable mob. The Patna High Court
in Vidyasagar Pande reversed the acquittal order made by the Sessions
Court, which considered that the conduct of the accused was influ-
enced by the unusual belief about spontaneous or magical occurrence
of fire in the pyre, and rescue by God in case of purity. The conduct of
the accused to prevent the police from rescuing the half burnt woman
who had escaped from the pyre by jumping into river was taken seri-
ously by the court.” The Rajasthan High Court in Tejsingh case called
the lenient punishment on abettors as ludicrous and inadequate,® K.N.
Wanchoo, CJ. for the Court observed, “In such cases of sati, therefore,
which off and on take place, we are of opinion that a deterrent sen-
tence is called for.”
The Commission of sati in 1987, where the widow Roopa Kanwar
18 years’ was burnt alive in Deorala of Rajasthan, spread shock
aged
waves throughout India. The glorification of sati by religious celebra-
tion, rituals and movement to construct temple for sati mata ignoring
the preventive measures of state government and High Court order
produced serious concern. The media, social activists and the women
organisations demanded for an effective-and~comprehensive law
8 See supra, Ch. 2.

2? Emperor v. Vidyasagar Pande (1928) 8 Pat 74.
” Tejsingh v. State, AIR 1958 Raj 169.
n and Law’s Response
Crimes against WomeR Thereto
562 a a A I UE
ac
Union and
preventing and forbidding the sati-related crimes. Both the
ission of
Rajasthan Governments enacted statutes to prevent comm
Act, 1987
sati. Parliament enacted the Commission of Sati (Prevention)
to provide for more effective prevention of the commission of sati and
ng
its glorification. The Preamble states that sati is revolting to the feeli
d any of thereligions of
of human nature and it is nowhere.enjoineby
India ‘as an imperative duty. The Act came into effect in 21st March
1988. Phe Act has following features:
First, it defines sati in a comprehensive manner to include both
sahamarana and anumarana, and acts of both widow-and other related
woman. According to Section 2(c) “sati” means the burning or burying
alive of:
(i) any widow along with the body of her husband or any other
relative or with any article, object or thing associated with
the husband or such relative; or
(ii) any woman along with the body of any of her relative, irre-
spective of whether such burning or burying is claimed
to be voluntary on the part of the widow or the woman or
otherwise.
Second, it defines and penalises three types of offences viz, attempt to
commit sati, abetment
of sati and glorification of sati. By criminalising
the-attempt to commit sati, a message is sent that it is condemned by
the civilised world. While the punishment for this offence is one years’
imprisonment, the sentencing process is required to take into consid-
eration the circumstances and state of mind of the woman (Section 3).
Abetment of sati_is punishable with death penalty or life imprison-
merit Whereas abetment of attempt to commit
sati is punishable with
life imprisonment. Abetment of sati includes inducement to widow or
woman to commit sati irrespective of her state of mind; making her to
believe that sati will bring spiritual benefit; encouraging her to remain
fixed in her resolve to commit sati; participating in any procession for
commission of sati or aiding her by taking her to the cremation or
burial ground; being in the place where sati is practiced as an active
participant; preventing or obstructing her from saving herself from
sati; and obstructing or interfering with the police in the discharge of
their duties of preventing sati. The explanation is comprehensive to
cover all situations experienced in the context of sati in the past.
Gloification of sati is punishable withaminimum punishment of
one-year Imprisonment, which may extend to seven years’ along with
fine that may range between five thousand rupees to thirty thousand
rupees (Section 5). Glorification of sati is defined to include:
(1) the observance of any ceremony or the taking out of a proces-
sion in connection with the commission of sati; or
Legal prohibition of sati 563
Ts ae, SSSR: GOT SRO SSR Aare Sia Sn eee a a
(i) the supporting, justifying or propagating the practice of sati
in any manner; or
(ui) the arranging of any function to eulogise the person who has
committed sati; or
(iv) the creation of trust, or the collection of funds, or the construc-
tion of a temple or other structure or the carrying on of any
form of worship or the performance of any ceremony threat,
with a view to perpetuate the honour of, or to preserve the
memory of, a person who has committed sati.
The definition is adequately wide to comprehend all the expressive
activities that enhance the image of sati.
Third, the District Magistrate is vested with the power of taking pre-
ventive action of prohibitin the doing of any act towards the commis-
sion of sati in iy aioe Spocea in the order if he is of the opinion that
sati is being or about to be committed in such place. Contravention
prohibitory order attracts punishment of imprisonmenfor
of the t a
term of one to seven years’. Temples or other structures in which wor-
ship or ceremony for commemoration of person committed sati is tak-
ing place may be removed by the order of State Government in case
the temple or structure is more than 20 years’ old or by the order of
District Magistrate in case it is lesser than 20 years’ old. The Collector
or District Magistrate has the power of seizing the properties used for
glorification of sati.
Fourth, for the trial of cases under the Act, Special Courts are to
be constituted by the State Government. Special procedures of the
court, special Public Prosecutors for conducting the case and provi-
sion for appeal to High Court are contemplated. All village officers
are required to inform the District Magistrate about the occurrence
or likelihood of commission of sati. The burden of proving that the
accused person has not committed the offence of abetment of sati lies
upon the accused person.
Fifth, in orde r
to prevent taking political mileage of sati, persons
Suey OFtheoffenee under the Act are disqualified for contesting elec-
tion fora period of five years’ since his release. In the background
of Rajasthan experience that some political leaders were involved in
glorification of sati such steps have been taken. The Act is given over-
riding effect.
In All India Democratic Women’s Assn. v. Union of India* the Supreme
Court issued order against the management of the Sri Rani Satiji's
Mandir prohibiting him from performing any “chunri ceremony
to have
within the mandir and directing him to enforce this order and
31 (1989) 2 SCC 411: AIR 1989 SC 1280.

Thereto
Crimes against Women and Law's Response ER
564 p
a
i
deposited into
entire collection of money separately accounted for, and
a nationalised bank.
ted
The Rajasthan Sati (Prevention) Ordinance, 1987 was promulga
ly
by the Governor of Rajasthan on 1st October 1987 and subsequent
was converted into Act. Compared to the Central Act, the Rajasthan
r
Act defined the terms glorification and sati in narrow sense. Unde
Section 2(b) “glorification”, in relation to sati, includes, among other
things, the observance of any ceremony or the taking out of a proces-
sion in connection with the sati or the creation of a trust or the collec-
tion of funds or the construction of a temple with a view to perpetuat-
ing the honour of, or to preserve the memory of the person committing
sati. According to Section 2(c) sati means the burning or burying alive
of any widow along with'the body of her deceased husband or with
any article, object or thing associated with the husband, irrespective
of whether such burning is voluntary on the part of the widow or oth-
erwise. But the provisions about punishment for these offences and
about Collector’s power of taking appropriate preventive measures
remain similar in both the statutes. Regarding the application of the
rule against double jeopardy for offences of glorification of sati and
contravention of prohibitory order of the Collector a question arose in
State of Rajasthan v. Hat Singh. Overruling the High Court’s judgment,
the Supreme Court held that the offences were different, and the ques-
tion of double jeopardy did not arise. The court ordered for resump-
tion of trial and its complet.on within six months’. It is submitted, the
delay in trial due to legal battle and dichotomy arising between the
Central and State law reflect the infirmities in the system falling short
of the vision of social transformation through law.
In sum, the law relating to sati has grown during the last two centu-
ries, by and large, reflecting humanist voice of the community towards
suppression of barbaric practice, although some infirmities are to be
checked, and reinforcement of legal measure shall be done through
favourable public opinion. Since inculcation of scientific spirit and
courtesy towards women constitute fundamental duties of citizens,
stern measures are appropriate.
13.4 Female infanticide

For ee
The practice of female infanticide prevalent in certain parts of India

amidst some castes in 18th and 19th century reflected not only the gen-
der bias of worst form, but also the difficulties in giving in marriage
girls of marriageable age due to extravagant expenses of marriage,
22 (2003) 2 SCC 152: 2003 SCC (Cri) 451.

Female infanticide 565
ae ee ee
problem of dowry and strict practice of endogamy;} The Regulation
21
of
7795 made infanticide punisin
hable
North-West Provinces. This law
was made applicable to Oudh in 1803.
John Strach« y's Female Infanticide, Prohibition Bill became law in
1870 in North- est Provinces, Punjab and Oudh. It Was extended to
other. regions also. Local authorities were given effective power of
enforcement of the Act by imposing six months’ imprisonment and
fine of Rs 1000 or both. Strict implementation of the law was ensured
through special administrative méasurtes3*As a result, within a span
of just five years’ female child population increased by 8 per cent in
many villages. According to Lalitha Panigrahi, illiberal means were
used to achieve liberal and human values} The colonial state’s intru-
sion into private sphere of population was brimming with confidence
of social reforms. As Janaki Nair observes, “This was a clear instance
of the colonial state’s fearless eradication of practices which had long
gone under the name of ‘custom’ and ‘tradition’, without too much fear
of political consequences.”>* In 1905,'in view of the opinion that the
Special Act of 1870 was no longer needed because one of the worst
social crimes had been stamped out, it was withdrawn in 1906 in
North-West Provinces, Agra and Oudh. The methodology and effect
of holistic approach to the problem has an exemplary value.
The law on infanticide entered into national legal framework called
Indian Penal Code. Infanticide is one form of homicide, attracting the
application of Section 299 or 300 IPC. Section 317 of the Code also
controls this crime: According to this provision, “Whoever being the
father or-mother of a child under the age of 12 years’, or having the
care of such child, shall expose or leave such child in any place with
the intention of wholly abandoning such child, shall be punished with
imprisonment of either description for a term which may extend to
seven years, or with fine or both.” This section is not intended to pre-
vent the trial of the offender for murder or culpable homicide, as the
case may be, if the child dies in consequence of the exposure. Intention
of abandonment of the child below the age of 12 years’ is crucial men-
tal element for the offence under Section 317. Further, by secretly bury-
ing orotherwise disposing of the dead body of.a child whether such
child die before, afteror during its birth, the person who intentionally
concéalsorendeavours to conceal the birth of such child is punishable
with imprisonment fortwo years’ or with fine or with both (Section
4 Ibid. ane ;
35 Lalita Panigrahi, British Social Policy and Female Infanticide in India (Munshiram
Manoharlal, New Delhi 1972) at p. 41.
re 1996 & 2000) at
% Janaki Nair, Women and Law in Colonial India (NLSIU, Bangalo
p. 84.
against Women a
Crimes n and Law's IResponse Thereto
566
an
a
still prevalent in
318). It is sad that female infanticide is found to be
re of the
certain parts of India, and the statistics give a shocking pictu
rtunate
situation. As the Supreme Court observed in CEHAT “Tt is unfo
ticide still
that for one reason or the other, the practice of female infan
prevails despite the fact that gentle touch of a daughter and her voice
has soothing effect on the parents. One of the reasons may be the mar-
riage problems faced by the parents coupled with the dowry demand
by the so-called educated and/or rich persons who are well placed
in the society. The traditional system of female infanticide whereby
female baby was done away with after birth by poisoning or letting
her choke on husk continues in a different form by taking advantage
of advance medical techniques. Unfortunately, developed medical sci-
ence is misused to get rid of a girl child before birth.”
———
13.5 Female foeticide

Indian cultural ethos recognised personality of child in the womb. The
pro-life policy, irrespective of differences in sex, is the basic approach
of the legal system. When the legal scope for abortion is tilted against
girl child, the legislature and judiciary responded to the problem sup-
porting the cause of gender justice.
The original policy under the Indian Penal Code is criminalising
and
punishing (imprisonment for three years’) the voluntary miscar-
riage of child in the womb except in good faith for saving the lifeof the
woman (Section 312 IPC). For miscarriage of viable foetus, severe pen-
alty has been prescribed (imprisonment for seven years’). More severe
penalty (imprisonment for life or 10 years’) is prescribed for miscar-
* riage without the consent of woman or that resulting in the death of
the woman. The law operated bit harshly as unwanted pregnancy
arising out of rape or adultery or failure of contraceptives could not
also be terminated except for saving the life of the mother. Because of
non availability of medical assistance, risky methods of abortion were
employed resulting in injury to health and life of the woman.
In 1971, owing to popularisation of family planning programme or
liberal policy on planned parenthood and after realising the defects
of the criminal law, the Medical Termination of Pregnancy Act was
passed. According to Section 3 of the Act a pregnancy less _than.12
weeks old may be terminated by a registered medical practitioner if
he believes in good faith that the continuance of pregnancy would
involve:
(a) a risk to the life of the pregnant woman;
*” Centre for Enquiry into Health & Allied Themes (CEHAT) v. Union of India, (2003) 8
SCC 398.
Female foeticide
=, 5S eliesciboho pe ieetlhc hehe -zeae iad567
(0) grave injury to her physical or mental health (pregnancy
alleged to have been caused by rape, and pregnancy because
of failure of contraception in the case of married woman are
presumed to constitute grave injury to the mental health of
the woman), or
(c) asubstantial
risk of the child being born abnormal or handi-
capped. If the length of pregnancy exceeds 12 weeks but
does not exceed 20 weeks, concurrence of two medical prac-
titioners is required for termination of pregnancy.
Consent of the guardian is required if the pregnant woman is a minor
or lunatic. Consent of husband is not required if the woman is adult.
But MTP without the consent of husband may amount to cruelty
against the husband, a ground for claiming divorce by the latter. In
case of pregnancy due to sexual intercourse on consent by unmarried
woman, the MTPA does not give scope for abortion. MTP of pregnancy
exceeding 20 weeks duration is permissible only for saving the life of
the woman. MTP can be conducted only in Government hospitals or
places recognised by the Government for this purpose. These limita-
tions are inherent in the Act, as it operates as an exception to IPC.
In the background of the MTP Act, termination of pregnancy has
attained liberal scope, a development in response to social change in
the context of population explosion. Along with the growth of medi-
cal science towards enabling medically safe\termination of pregnancy
and-pré-natal detection technique, the problem of its misuse also arose.
It isan alarming development that it gave rise to sex selected abortion
in various parts of India. As a result, sex ratio sharply déclined to 921
femialés-to
1060 males in 1991. In‘some districts it declined below goo.
The'sex ratio in the age group of zero to six recorded shocking figure
of 874 females in some states. It has also been reported that out of 9000
abortions 8999 in Mumbai were that of female fetuses. As viewed by
Shah, J. in CEHAT (2003), “It is an admitted fact that in Indian Society,
discrimination against girl child still prevails, may be because of pre-
vailing uncontrolled dowry system despite the Dowry Prohibition Act,
as there is no change in the mindset or also because of insufficient
education and/or tradition of women being confined to household
activities.”* In addition, lack of property right, powerlessness in vari-
ous fronts, and the consequent domestic violence made girl child, an
unwelcome specie.
Inrespanse to the concern shown by citizens, the State of Maharashtra
santa Duane Regultion of PNDT Act in 2988. Its major
policies consisted in prohibition on determination of sex of the foetus,
of India, (2003) 8
3 Centre for Enquiry into Health & Allied Themes (CEHAT) v. Union
SCC 398: AIR 2003 SC 3309.
568 Law's Response Thereto
Crimes against Women and ee
e e e ee
introduction of system of licencing for counseling centers, laboratories
and clinics in order to regulate their activities and suitable administra-
tive body for their supervision. The Pre-natal Diagnostic Techniques
(Regulation and Prevention of Misuse) Act, 1994 was passed by
Parliament, which came into effect in 1996. Allowing PNDT for find-
ing genetic or metabolic sex-linked disorder and prohibiting PNDT for
the purpose of pre-natal sex determination leading to female foeticide
were the two major policies of the Act referred in the Act’s preamble.
Salient features of the PNDT Act are as follows: First, the Act pro-
hibits Genetic Counseling Centre or Genetic Laboratory or Genetic
Clinic from conducting PNDT including ultrasonography for the pur-
pose of determining the sex of a foetus. It also prohibits persons from
involving in such acts (Section 6). Any contravention of the provision
by the owner of, or medical geneticist, gynaecologist or registered
medical practitioner serving in GL, GCC and GC attracts maximum
punishment of three years’ of imprisonment and fine of Rs 10, 000 in
case of first conviction and five years’ of imprisonment and fine of Rs
50,000 at subsequent convictions. The same quantum of punishment is
prescribed to persons seeking PNDT for sex determination of foetus.
Removal of the names. of guilty RMPs from the register, of Medical
Council for two years’ is also prescribed as punishment (Settion’33).
Secondly, it provides that no registered GCC, GL or GC shall be
used for conducting PNDT except for the purposes of detection of the
following abnormalities: Shromosomal abnormalities, genetic meta-
bolic diseases, haemoglobinopathies, sex linked genetic diseases, con-
genital anomalies, and any other abnormalities suggested by Central
Supervisory Board (Section 4). Further, such PNDT shall be conducted
only by qualified person after satisfying about fulfilment of the fol-
lowing conditions: | :
i) age of the pregnant woman is above 35 years’;
(1) the pregnant woman has undergone two or more spontane-
ous abortions or foetal loss;
(ui) the pregnant woman had been exposed to potentially tera-
togenic agents such as drugs, radiation, infection or
chemicals;
(iv) the pregnant woman has a family history of mental retarda-
tion or physical deformities such as spasticity or any other
genetic disease;
(v) any other condition as may be specified by the CSB. Seeking
the service of PNDT for purposes other than these is also
prohibited.
Moreover, written consent of the woman after explaining the effects of
PNDT shall be obtained. It is categorically stated “No person conduct-
Female foeticide
err
(_i(‘“‘(‘“ 569
ing pre-natal diagnostic procedures shall communicate
to the preg-
nant woman concerned or her relatives the sex of the foetu
s by words,
signs or in any other manner” (Section 5).
Third, for supervising the working of the Act, at the centr
al level
a body called Central Supervisory Board under the Chairman
ship of
Minister in charge of Department of Family Welfare and consisti
ng of
a Vice-Chairman and 20 members appointed. for three years’ is con-
templated. Due representation is provided for medical experts, socia
l
scientists and representatives of women welfare organisations (Section
7). The functions of CSB include:
(i) advising the Government on policy matters relating to
PNDT;
(i1) reviewing implementation of the Act;
(ii) reviewing the implementation of the Act and Rules and rec-
ommend changes; So ae
(it) creating public awareness against the practice of pre-natal
determination of sex and female foeticide; and
(iv) laying down code of conduct for GCC, GL and GC; and
(v) any other functions as may be specified under the Act (Sec-
Hrneton-t6):
tively. The AA shall have the following functions:

=———~(a) to grant, suspend or cancel registration of GCC, GL or GC;
(b) to enforce the standards prescribed for GCC, GL or GC;
(c) toinvestigate complaints of breach of the provisions of the Act
and Rules; and
(d) to seek and consider the advice of Advisory Committee on
application for registration and complaints for suspension or
cancellation of registration.
The AA is a body of high officials whereas AC is an eight-member
body consisting of medical experts, a legal expert, eminent social
workers including representative of women’s organisation and a pub-
licity officer (Section 17).
Fifth, elaborate provisions about the procedures and requirements
for registration of GCC, GL or GC are made in the Act (Section 19).
About cancellation or suspension of registration after due hearing pro-
vision is made (Section 20).
Sixth, for contravention of various provisions of the act and rules
stringent penalties are prescribed. For offences committed by compa-
nies, liability is imposed upon the person in charge of the business of
the company. All the records, charts and documents required to be
570 Crimes against Women and Law's Response Thereto
Se
’. Under
kept under the Act are to be preserved for at least two years
ed that
Section 24 the Court shall presume unless the contrary is prov
the rela-
the pregnant woman has been compelled by her husband or
of
tive to undergo PNDT and such person shall be liable for abetment
the offence of seeking PNDT for sex determination of foetus.
The legislation has a comprehensive framework and strong policy
to prevent foeticide and deal sternly with the violators. But the admin-
istrative apathy and slow action was stealing rigour of the law and
neutralising its dynamic spirit of gender justice. The Supreme Court
in CEHAT [2001] observed:
“It is apparent that to a large extent, the PNDT Act is not implemented
by the Central Government or by the State Governments.”
The Court issued directions to various bodies under the Act.
First, the Central Government was directed to create public aware-
ness against the practice of pre-natal determination of sex and female
foeticide through appropriate releases; to implement with all vigour
and zeal the PNDT Act and the Rules framed in 1996; and to ensure
that the intervening period between two meetings of the Advisory
Committees to advise the appropriate authority shall not exceed 60
days.
Second, it gave directionsto the CSB to hold meetings of the CSB at
least once in six months’. The Court wished that in appointing emi-
nent medical practitioners-including eminent social scientists and
representatives of women: welfare organisations, those persons who
can genuinely spare some time for implementation of the Act should
be chosen. The CSB shall issue directions to all State/UT. Appropriate
Authorities to furnish quarterly returns to the CSB giving a report on
the implementation and working of the Act detailing about survey of
GCC, GL or GC, their registration and action taken against non-regis-
tered bodies inclusive of search and seizure of records. The CSB was
also asked to examine the necessity to amend the Act keeping in mind
emerging technologies and difficulties encountered in implementa-
tion of the Act; to lay down a Code of Conduct for GCC, GL or GC; and
require medical professional bodies/associations to create awareness
against the practice of pre-natal determination of sex and female foeti-
cide and to ensure implementation of the Act. ‘
Third, it gave directions to State Governments/UT Administrations
to appoint by notification, fully empowered appropriate authorities at
district and sub-district levels and also Advisory Committees to aid
and advise the appropriate authority in discharge of its functions; to
publish a list of the appropriate authorities in the print and electronic
media in its respective State/UT; to create public awareness against
the practice of pre-natal determination of sex and female foeticide
Female foeticide
salts esculenta ree57]
through advertisement in the print and electronic media by hoarding
and other appropriate means; and to ensure that all State/UT appropri-
ate authorities furnish quarterly returns to the CSB giving a report on
the implementation and working of the Act detailing about GCC, GL
or GC.
Fourth, appropriate authorities are directed to take prompt action
against any person or body who issues or causes to be issued any adver-
tisement in violation of Section 22 of the Act; to take prompt action
against all GCC, GL or GC as also against persons who are operating
without a valid certificate of registration under the Act; and to furnish
quarterly returns to the CSB giving a report on the implementation
and working of the Act detailing about GCC, GL or GC.
In spite of the above order, certain States/Union Territories did not
file their affidavits. Matter was adjourned from time to time and on 19
September 2001, the Court noted that the directions issued were not
complied with. No action had been taken regarding the unregistered
GCC, GL or GC but only a warning was issued. The Court felt that
prosecution was required and there was no question of issue of warn-
ing and permitting them to continue their illegal activities. The Central
Government proposed to take concrete steps for the implementation of
the Act and suggested to set up National Inspection and Monitoring
Committee for the implementation of the Act. The State Governments
were directed to publish the names of Advisory Committee in various
districts so that if there is any complaint, any citizen can approach
them. The Court further observed that it would be desirable if the
Central Government frames appropriate rules with regard to sale of
ultrasound machines to various clinics, and issue directions not to
sell machines to unregistered clinics. In 2003, in conformity with the
various directions issued by this Court, the Act was amended and
titled as “The Pre-Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act.”
The above survey points out how a progressive woman protection
law is made full-fledged due to judicial intervention and how the
recalcitrant states were persuaded to comply with the legal require-
ment and work for its strict enforcement. In CEHAT (2003) the Supreme
Court directed the Central and State Governments/Union Territories
and the authorities constituted under the PNDT Act to give wide pub-
licity to the law by advertisements for effective implementation of the
Act till there is awareness in public that there should not be any dis-
crimination between male and female child. Quarterly reports by the
Appropriate Authority, which are submitted to the Supervisory Board
should be consolidated and published annually for information of the
public at large. The National Monitoring and Inspection Committee
572 Crimes against Women and Law’s n Response Thereto
A) e
constituted by the Central Government for conducting periodic
inspection shall continue to function till the Act is effectively imple-
mented. Public should have access to the records maintained by dif-
ferent bodies constituted under the Act. CSB would ensure that States
of Delhi, Himachal Pradesh, Tamil Nadu, Tripura and Uttar Pradesh
appoint the State Supervisory Board as per the requirement of Section
16-A. The Court observed, “Considering the amendment in the Act, in
our view, it is the duty of the Union Government as well as the State
Governments/UTs to implement the same as early as possible.”
13.6 Dowry harassment

One more sphere in which law had to combat with tradition and assert
the policy of gender justice is with regard to the problem of dowry.
Dowry is popularly understood as goods that the wife brings to her
husband ii marriage. Dowry is prejudicial to human rights of women
because it.is socially conceptualised as compensation for the low
value of woman for getting the company of high valued man; because
she cannot sever relations easily once hefty payment is made by her
parents; and because non payment of the promised ones or of new
demands lead to violence and even murder.
In common parlance, dowry is a property given to or taken by any
one of the parties to marriage in connection with marriage. Since in
Hindu Law marriage is r-garded as samskara, approved type of mar-
riage did not include the element of consideration. Giving of kanyasulka
by the bridegroom to the bride’s side was regarded as asura type of mar-
riage, and lacked recognition or respect in law.* The origin of the word
varadakshina, which is used to represent dowry, is sometimes traced
to the practice of kanyadan, where dan of a maiden would be complete
only with the token of dakshina" But, except the customary practice
of giving a trivial token, it had no cultural base since there was no
reference insmritistothe requirement of giving or taking of avd
connected to martiage. However; theré was voluntary practice of giv-
ing gifts to the bride by her parents or relatives that was recognised as
stridhan of the bride.# It has beén‘an obligation'on the part of fathér-to
incur the marriage expenses of his daughter at his discretion. After his
demise, it was the obligation of brothers to have their unmarried sister
* Centre for Enquiry into Health & Allied Themes (CEHAT) v. Union of India, (2003) 8
SCC 398: AIR 2003 SC 3309.
40 Manu Smriti, II-31.
*" Report of the Parliamentary Joint Committee (1961); Paras Diwan, Legal Protection
of Women (Deep and Deep, New Delhi).
2 Mitakshara, I-11, at p.30; Katyayana cited in Mitakshara, II-11, at p.5; Smritichandrika,
IX-II, at pp. 4-5.
Dowry harassment
573
married at their expenses by giving them a quarter of
their own share.
Giving gift to the bride and incurring the marriage expe
nse were the
expenses coming within the ambit of family benefit.
It is difficto ultsay when exactly the practice of dowry entered into
a its prevalence in some upper castes of warridrs-dur-
ing the medieval period in a problematic size was a cause for
female
infanticide. Rigid caste system, endogamy, patriarchy and poly
gamy
had aggravated“ the rigour of dowry problem. The egalitarian
spirit
of Bhakfi movement or social reforms of 19th century had some influ-
ence of gender justice, but it was neither widespread nor overwhelm-
ing to address the issue of dowry. As early as in 1928 Gandhiji- wrote
emphasising the need for voluntary collective action against the evil,
“A strong public opinion should be created in condemnation of the
degrading practice of dowry, and young men, who soil their fingers
with such ill-gotten gold, should be excommunicated from society.
Parents of girls should cease to be dazzled by English degrees, and
should not hesitate to travel outside their little castes and provinces to
secure true gallant young men for their daughters.” He viewed that
marriage by purchase was the product of rigidity of caste system and
lack of courage to resist the evil by younger generation. True education
should drive away the evil, he reasoned.
The Sindh Deti Leti Act, 1939, which was the first legislative attempt
to deal with the problem of dowry, had the objective of pro iting pay-_
<a
payment as a part of the contract of any betrothal of marriage.”

Payment was defined to mean any payment by or toa person betrothed
or married or to a-parent orrelative orSuardianof such person made
or agreed to be made in connection with,Or in consequence of, the
betrothal or marriage and included the giving of giftorpresent in kind
ort anyoccasion. Use of the words “in connection with” while defining
payment and condemnation of both giving and receiving of payment
and of both dowry and dower suggest indispensable rudimentary
principles in this sphere. Giving or receiving of payments within the
permissible aggregate of Rs 500 within two years’ of marriage, Rs 50
per year in next three years’ and Rs 25 per year subsequently are per-
missible provided that the list of payment is registered with panchayat.
For contravention of the law, simple imprisonment for one month and
fine of one thousand rupees are prescribed. The offence could be taken
cognisance of, by the District Magistrate. The law was only reflecting
formal condemnation of the practice of dowry rather than a coercive
® Harijan, 23-5-1936. See also, Young India, 27-12-1928.
A A Te CAAT: MOAR
as
framework to deal with the evil. It failed to create desired effect. But
a starting point of reformatory measure in the colonial world, it had its
own significance in strengthening public opinion against dowry.
Compared to the Sindh Act, the Bihar Dowry Restraint Act, 1950 and
the Andhra Pradesh Dowry Prohibition Act, 1958 had both merits and
demerits. Taking of dowry was punishable with imprisonment for six
months’ under both the Acts. The Bihar law prescribed one month
imprisonment for giving dowry; whereas under the Andhra Act it was
punishable with imprisonment for six months’. Under both the Acts,
the offences were non-cognisable. The Bihar law explicitly permitted
giving of voluntary marriage gifts such as Ofnaments, sfridhan, kan-
yanirikshtin tothe bride. Payment of dahez or-tilak lesser than the value
of Rs-251 was also permitted. Conceptual distinction between dowry
and stridhan is a notablé-development. However, both the legislation
failed to achieve the intended objectives because of inherent loopholes
of narrow definitions.
In view of the spread of the evil of dowry all over India, Parliament
felt it asexpedient to enact a central law under the Concurrent List
subject to State Amendments with the approval by the President. In
framing of the Bill, States were also consulted. Joint Committee of
Parliament discussed the subject in detail. It also referred to the ever
increasing and disturbing proportion of the evil of dowry and grossly
insensitive attitude of the youth that contributed to its perpetuation.
Prime Minister Jawaharlil Nehru while piloting the Bill on 6 May 1961
observed, “Legislation cannot by itself normally solve deep rooted
social problems. One has to approach them in other way too, but legis-
lation is necessary and essential, so that it may give that push and have
that educative factor as well as the legal sanctions behind it which help
public opinion to be given a certain shape.“ The law emerged as a
result was the Dowry Prohibition Act, 1961. The trend of legal develop-
ment in the atéa can bétracedas below.
‘First, the definition of the term “dowry” as it originally stood had
Sévere defect in that only the propertyor valuablé security given or
taken in consideration of marriage formed dowry, as a result of which
payments in case of non occurrence of marriage did not amount to
dowry, and fell outside the scope of the law. To plug this loophole an
amendment was brought in 1984 based on the experience and rec-
Ommendation-of Joint Parliamentary Committee. Now the provision
Section 2 reads, “In this Act, ‘dowry’ means any property or valuable
security given or agreed to be given either directly or indirectly:
i Cited by the Joint Parliamentary Committee in 1961 and in the Statement of

Objects and Reasons of the Bill (1986) to amend the Dowry Prohibition Act.
Dowry harassment
575
(a) by one party to a marriage to the other party to the marriage;
or
(b) by the parents of either party toa marriage or by any other
person, to either party to the marriage or to any other per-
son, at or before or any time after the marriage in connection
with the marriage of the said parties, but does not include
dower or mehr in the case of persons to whom the Muslim
Personal law (Shariat) applies:
Explanation I.—For the removal of doubts, it is hereby declared that any
cents rade at the time of a marriage to either party to the marriage
in the form of cash,-ornaments, clothes or other articles, shall not be
deemed to be dowry within the meaning of this section, unless they
are made as consideration for the marriage of the said parties.
Explanation II.—The expression ‘valuable security’ has the same
meaning in Section 30 of the Indian Penal Code (45 of 1860).”
By allowing the. tradition of giving wedding gifts, the law has
respected continuity of culture in bringing social reforms but with-
out burdéning the parents of brides. Section 3(2), Rules and State
Amendments require keeping of the written list of presents, and cus-
tomary character and non-excessive nature of the wedding presents.
Second, for giving or taking of dowry, the punishment prescribed in
the original legislation (imprisonment for six months’ at maximum and
fine of Rs 5000) was enhanced to imprisonment fora minimum dura-
tion of five years’ unless found by the sentencing court as adequate on
justified feason and a fine of Rs 15,000 or the amount of dowry which-
ever is more (Section 3). A new Clause was added to immunise from
the operation of the Act the presents voluntarily given at the time of
marriage without demand. But such presents shall be entered in lists
kept in accordance with rules. In case of presents made by the side of
bride to the bridegroom, such presents should also satisfy the require-
ment that they shall be customary in nature and not excessive in value
having regard to the financial status of the giver. The need to make
legal measure stringent and also to recognise customary practice of
giving reasonable presents was responded by the legal development.
Third, the penalty for demanding dowry is enhanced from maxi-
mum imprisonment for six months’ and fine of Rs 5000 to a punish-
ment for a duration ranging between six months’ to two years’ and
a fine of Rs 10,000 (Section 4). In construing the meaning of demand
for dowry in the context of the offence of dowry death, the Supreme
Court in State of A.P. v. Raj Gopal Asawa*® observed, “Demand neither
conceives nor would conceive of any agreement. If for convicting any
offender, agreement for dowry is to be proved, hardly any offenders
4 (2004) 4 SCC 470: 2004 SCC (Cri) 1306.

576 Crimes again Law's Response Thereto
st Women and ee
OO —E—E ee
even
would come under the clutches of law...This makes it clear that
hable. It
demand of dowry on other ingredients being satisfied is punis
is not always necessary that there be any agreement for dowry.” Thus
non-occurrence of marriage is no impediment to apply Section 4. In
Reema Aggarwal, by applying the law to a situation of second marriage~
althe so ,me Court observed, “If the validity of the marriage itself
Supre
is under legal scrutiny, the demand of dowry in respect of an invalid
marriage would be legally not recognisable. Even then the purpose for
which Sections 498-A and 304-B IPC and Section 113-B of the ndian
Evidence Act, 1872 (for short the ‘Evidence Act’) were introduced can-
not be lost sight of. Legislation enacted with some policy to curb and
alleviate somepublic evil rampantin society andeffectuate a definite
public purpose-or bénéfit positively requires to be interpreted with
certainelement of realism too and not merely pedantically or hyper
technically.” cot Pye
Third, there is minimum penalty of imprisonment for six months’
and fine of Rs 15,000 to any person for offering of dowry by advertise-
ment and for publication of the advertisement. This is newly intro-
duced provision in 1986 (Section 4-A). Agreement for giving and tak-
ing dowry shall be void (Section 5).
Fourth, the property received by way of dowry shall be the property
of the woman in connection with whose marriage it was given. Stich
person shall transfer the property to the woman within three months’
from the date of receipt o. from the date on which the woman attains
majority in case marriage was concluded during her minority (Section
6). The law as amended on 1984 has prescribed punishment for failure
to transfer the property and arranged for recovery of the property to
the woman in the same manner as fine is recovered. In Pratibha Rani v.
Suraj Kumar’, after tracing out the history of stridhan, it was held that
wife is the absolute owner of such property under Section 27 of the
Marriage Act. Property presented to the husband and wife at or about
the time of marriage belongs to them jointly. This judgment has been
the basis for a number of prosecutions against husbands for commis-
sion of criminal breach of trust.#
Fifth, what were only non-cognisable and bailable offences earlier
have become a cognisable and non-bailable offences owing to change
introduced to the Dowry Prohibition Act in 1984 and 1986 (Section 8).
This change was brought after realising that most of the dowry offences
*° Reema Aggarwal v. Anupam, (2004) 3 SCC 199: 2004 SCC (Cri) 699: AIR 2004 SC
1418.
4” (1985) 2 SCC 370: 1985 SCC (Cri) 180.
* Kirti Singh, “Violence against Womenand the Indian Law” in Savitri Goonesekere
(Ed.), Violence, Law and Women’s Rights in South Asia (Sage Publications, New Delhi
2004) at pp. 77, 131.
Dowry harassment 577
SS
A Sec RARER
Sixth, the State Governments are authorised tg appoint Dowry

Prohibition Officers for ensuring compliance with the Act;to prevent
the commission of dowry offences, to collect evidences for prosecution
and to perform additional functions. For advising and assisting DPOs,
the State Government may appoint Advisory Boards-consisting of five
social workers of whom at least two shall be women (Section 8-B). The
mechanism for supervision and investigation at grass root level is a
commendable idea, and needs effective functioning.
Seventh, far-reachin chan es have been brought to the Penal Code
and the Indian Evidence Act in order to deal with the crimes of dowry
death (Section 304-B) and dowry harassment. (Section 498-A). As per
304-B Dowry Death.—”(1) Where the death of a woman is caused by
anyburnsor bodily injury or occurs otherwise than under normal
circumstances within seven years’ of her marriage and it is shown that
soon before her death she was subjected to cruelty or harassment by
her husband or any relative of her husband for, or in connection with
any demand for dowry, such death shall be called ‘dowry death’, and
such husband or relative shall be deemed to have caused her death.
Explanation.—For the purpose of this sub-section ‘dowry’ shall have
the same meaning as in Section 2 of the Dowry Prohibition Act, 1961
(28 of 1961).
(2) Whoever commits dowry death shall be punished with impris-
may*exténd to'imprisonment for life.”

The Supreme Court in Hiralal case said, “Soon before is a relative term
and it would depend upon circumstances of each case and no strait-
jacket formula can be laid down as to what would constitute a period
of soon before the occurrence... There must be existence of a proximate
and live link between the effect of cruelty based on dowry demand
and the concerned death. If alleged incident of cruelty is remote in
Crimes against Wome n and Law's Respo nse Thereto
578 Sie ean cate
= NeMENT E OES. Yet eee Fe
m
time and has become stale enough not to disturb mental equilibriu
of the woman concerned, it would be of no consequence.”
hte es
or harassment for, or in connection with, any demand for dowry, the

Court shall presume that such person had caused the dowry death.”
This change is significant for enhancing the conviction rate, for creat-
ing déterrent effect and thus control the crime. Although no retrospec-
tive effect was given to this provision in Soni case by reason of Article
20(1), J.S. Verma, J. for the Court observed:
“Section 304-B and the cognate provisions are meant for eradication of
the social evil of dowry which has been the bane of Indian society and
continues unabated in spite of emancipation of women and the women’s
liberation movement. This all pervading malady in our society has only
a few lucky exceptions in spite of equal treatment and opportunity to
boys and girls for education and career. Society continues to perpetu-
ate the difference between them for the purpose of marriage and it is
this distinction which makes the dowry system thrive. Even though for
eradication of this social evil, effective steps can be taken by the society
itself and the social sanctio~s of the community can be more deterrent,
yet legal sanctions in the rorm of its prohibition and punishment are
some steps in that direction.”
For subjecting a woman to cruelty by husband or relative of husband,
Section.498-A IPC prescribes, “Whoever, being the husband or the rel-
ative‘of the’husband of a woman, subjects such woman to cruelty shall
be punished with imprisonment for a term which may extend to three
years’ and shall also be liable to fine.
Explanation.—For the purpose of this section ‘cruelty’ means:
(a) any wilful conduct which is of such a nature as is likley to
drive the woman to commit suicide or to cause grave injury
* Hira Lal v. State (Govt. of NCT), Delhi, (2003) 8 SCC 80: 2003 SCC (Cri) 2016: AIR
2003 SC 2865; see also State of A.P. v. Raj Gopal Asawa, (2004) 4 SCC 470: 2004 SCC (Cri)
1306. In Shanti v. State of Haryana, (1991) 1 SCC 371: 1991 SCC (Cri) 191 the ingredients
of the section were analysed.
*” Soni Devrajbhai Babubhai v. State of Gujarat, (1991) 4 SCC 298: 1991 SCC (Cri) 959, “It
would be hazardous to indicate any fixed period, and that brings in the importance of
a proximity test both for the proof of an offence of dowry death as well as for raising a
presumption under S. 113-B of the Evidence Act...Suffice, however, to indicate that the
expression ‘soon before’ would normally imply that the interval should not be much
between the concerned cruelty or harassment and the death in question.”
Dowry harassment
eee ti‘ 579
or danger to life, limb or health (whether mental or physical)
of the woman; or
(b) harassment of the woman where such harassment is with
a
view to coercing her or any person related to her to meet any
unlawful demand for any property or valuable security or is
on account of failure by her or any person related to her to
meet such demand.”
The Supreme Court in Satvir Singhs" upheld the conviction of appellants
under Section 498-A in a circumstance where the woman attempted to
commit suicide soon after hearing the provoking statements made by
her husband and mother-in-law. The Court awarded a compensation
of Rs 3 lakhs payable by the appellants to the victim. The constitution-
ality of the provision was examined on the touchstone of Articles 14,
20(2) and 21 and was upheld by the Delhi High Court in Inder Raj Malik
v. Sunita Malik as justified on account of reasonable classification
and not amounting to double jeopardy with Section 4 of the Dowry
Prohibition Act.
Another provision of IPC invoked in case of dowry harassment is
Section 306;-Which"penalises abetment to commit suicide by stating,
“If ahypefsor-eommits suicide, whoever abets the cormmission of such
suicide, shall be punished with imprisonment of either description for
a term which may extend to 10 years’, and shall also be liable to fine.”
In order to sternly deal with dowry harassment leading to abetment to
commit suicide, the rule of evidence was also modified. Accordingly,
Section_113-A provides, “When the question is whether the commis-
sion of suicide by a woman had been abetted by her husband or any
relative of her husband and it is shown that she had committed sui-
cide within a period of seven years’ from the date of her marriage and
that her husband or such relative of her husband had subjected her
to cruelty, the Court may presume, having regard to all the other cir-
cumstances of the case, that such suicide had been abetted by her hus-
band or by such relative of her husband.” The scope of Section 306 is
broader than that of Sections 304-B and 498-A. In Pawan Kumar v. State
of Haryana>> the Supreme Court enhanced the punishment prescribed
by the High Court from imprisonment for two years’ to five years’
and from a fine of Rs 5000 to Rs 20,000 and observed, “The legislature
has, by amending the Penal Code and Evidence Act, made Penal Law
more strident for dealing with and punishing offences against mar-
ried women. Such strident laws would have a deterrent effect on the
51 Satvir Singh v. State of Punjab, (2001) 8 SCC 633: 2002 SCC (Cri) 48.
2 4986 Cri LJ 1510 (Del); see also Indrawati v. Union of India, (1991) 1 Cr LJ All.
53 (1998) 3 SCC 309: 1998 SCC (Cri) 740.
offenders only if they are so stridently implemented by the law courts

to achieve the legislative intent.”
Further, the provisions on culpable homicide, murder or attempt to
commit these crimes are also invoked: when evidences about killing
the woman or attempt to kill could be clearly established. For inhu-
man murder of woman by her in-laws and husband for dowry, even
death penalty is also imposed in a case.
It is shocking state of affairs that case reports abound with cases
on dowry offences with variety of facts about the types of demands,
criminal methods employed with coercion, helpless situations of par-
ents and dieing declarations. A rough estimate that every year 15,000
young brides are burnt to death points out the tall challenge that the
legal system faces.
cases has censured and condemned the police inaction, delay and col-
lusion relating to investigation about dowry violence. Inconsistencies
in the dying declarations owing to different levels of pains and anguish;
non-availability of third party witness because of the occurrence of
the incidents inside the marital home; and distorted medical reports
owing to corruption have also added to the failure of the prosecution»
Failure to establish the date of marriage in a recent case had resulted
in acquittal from the charge of dowry death’* The need for requiring
the registration of marriage compulsory will go a long way in bringing
a change in this sphere.
Supreme Court has tried to tone down the rigours of benefit of doubt
rule by warning against-exaggerated devotion to it and said, “justice
cannot be made ‘sterile’on the plea that it is better-to lét'a hundred
guilty escape than punish an innocent. Letting the guilty escape is
not doing justice according to law.”7 The Court has also insisted on
proportionate punishment in dowry violence cases5* The direction
shown by the Apex Court has the touch of human sensitivity and bold
** Bhagwant Singh v. Commr. ofPolice, (1983) 3 SCC 344: 1983 SCC (Cri) 637; Lichhamadevi
v. State of Rajasthan, (1988) 4 SCC 456: 1988 SCC (Cri) 978; Pramod Kumar v. State re)a feloA
(1989) 2 HLR 421 (All); P. Bikshapathi v. State of A.P., (1989) 2 HLR 430 (AP).
°° For a critical discussion see, Kirti Singh, supra, n. 48 at pp. 134-35; Raj Pal v. State,
(1989) 1 HLR 90 (Del); Kailash Kaur v. State of Punjab, (1987) 2 SCC 631: 1987 SCC (Cri)
431: AIR 1987 SC 1368; State (Delhi Admn.) v. Laxman Kumar, (1985) 4 SCC 476: 1986 SCC
(Cri) 2: AIR 1986 SC 250.
°° Baljeet Singh v. State ofHaryana, (2004) 3 SCC 122: AIR 2004 SC 1714.
*” Gurbachan Singh v. Satpal Singh, (1990) 1 SCC 445: 1990 SCC (Cri) 151; Kirti Singh,
supra, n. 48 at pp. 138-39.
** Romesh Kumar v. State of Punjab, (1987) 1 HLR 189 (P&H); P. Bikshapathi v. State of
A.P., (1989) 2 HLR 430 (AP).
Sexual offences
ee Seman Sea aera. oe eres 581
feminist perspective. The NGO participation for feminist advocacy
especially for spurring the police to investigate is noteworthy, and has
gained judicial appreciation,»
The application of Dowry Prohibition Law requires holistic approach
on the part of police, courts, witnesses and NGOs. Society’s role in this
coordinated task is vital, as observed by the Supreme Court in Vikas v.
State of Rajasthan®.
This deep rooted social evil requires to be controlled not only by
effective implementation of the Dowry Prohibition Act, 1961, but also
by the society. The society has to find out ways and means of control-
ling and combating this menace of receipt and payment of dowry. It
appears that instead of controlling payment and receipt of dowry in
one or other form, it is increasing even in educated class. May be that,
it is increasing because of accumulation of unaccounted wealth with
few, and others having less means follow the same out of compulsion.
13.7 Sexual offences
Sexual offences constitute another category of heinous wrongs com-

mitted against women, concerning which legal system’s approach
has tindergone substantial changes in recent times owing to public
pressure. These offences range from rape to molestation, from kidnap-
ping to trafficking, and from pornography to prostitution. One com-
mon feature amidst these offences is that aggressive male sexuality
attempts to terrorise women into submissive Behaviour Heatswomen
as subordinate, victimises them by physical attack and mental agony,
and unwarrantedly assumes that-women are objects of sexual pleas-
ure to serve the men. Whether the trend of legal development in this
spheré has assisted the cause of gender justice is to be examined by
analysing the relevant provisions under IPC and relevant statutes on
subjects such as prevention of immoral traffic in women. The law-
society interaction in this domain has specific experience worthy of
cognisance. Increasing rate of crimes, societal concern against them,
organised public opinion due to feminist movement and media, and
responses by the legislature and judiciary to protect the interests of
women constitute the sequence of factors occurring in this sphere.
The constitutional and human rights jurisprudence has also distinct
impact on this sphere, as discussed in the earlier chapter.
59 Harbhajan Kaur v. Taranjit Singh, (1985) 1 HLR 635 (P&H).

® (2002) 6 SCC 728: 2002 AIR SCW 3212.
Crime Law’s
s against Women andse Response Thereto
582 ec heh ei " t=
a
13.7.1 ,Law on rape
The social and legal changes that took place about rape are broadly
reflecting the direction of development towards better protection of
women’s interests. The approach of the judiciary to the crime of rape
is reflected in Bodhisattwa Gautam where the Supreme Court observed,
“Unfortunately, a woman, in our country, belongs to a class or group
of society who are in a disadvantageous position on account of several
social barriers and impediments and have, therefore, been the victim
of tyranny at the hands of men with whom they, fortunately, under the
Constitution enjoy equal status. Women also have the right to life and
liberty; they also have the right to be respected and treated as equal
citizens. Their honour and dignity cannot be touched or violated. They
also have the right to lead an honourable and peaceful life...Rape is
thnot us only a crime against the person of a woman (victim), itis
a crime against the entire society. It destroys the entire psychology
of a woman and pushes her into deep emotional Crises. If only
is by
her sheer will power that she rehabilitates herself in the society which,
on coming
to know of thé rape, looks down upon her in derision and
contempt. Rape is, therefore, the most hated crime. It is a crime against
basic human rights and is also violative of the victim’s most cherished
of the Fundamental Right to Life contained in Article 21.”
In order to take care of the social aspect of the matter, some impor-
tant legal developments huve taken place. In the interpretation of
Section 375 IPC® there is a big change in the approach. bs
Firstly, consent based on deception, promise of marriage and fake
marital ritual are considered as mo consent at present.® This is in con-
trast to an eaflier approach that it is only deception about the nature
of the act that removes the basis of consent, and that consent obtained
*! Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490.

* 375. “A man is said to commit ‘rape’ who except in the case hereinafter excepted,
has sexual intercourse with a woman under circumstances falling under any of the
five following descriptions:
First.— Against her will.
Secondly.— Without her consent.
Thirdly.—With her consent, when her consent has been obtained by putting her
in fear of death, or of hurt.
Fourthly.—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.
Fifthly.—With or without her consent, when she is under 16 years’ of age.
Explanation.—Penetration is sufficient to constitute the sexual intercourse
necessary to the offence of rape.
Exception. —Sexual intercourse by a man with his own wife, the wife not being
under fifteen years’ of age, is not rape.”
Tbid.
Sexual offences
583
by whatever deceitful means for the act, once the nature of the act
es im to woman, did remain as consent for exempting from the
iability for rape.%4 Absence of bodil injury and the fact of submissi
does Rot
not imply
nplyconsen
consentt atat pres¢
Se Loe ntrast
=e he to e Siddi
the position in he
the
past.*° With regard to aggravated circumstances of rape under Section
376(2), the legal assumption is against consent by virtue of changed
rule of evidence.” ‘ =
Setondly,the rule relating to requirement of corroboration of cir-
cumstantial_evidence® is generally dispensed with by the judiciary.
As A.M. Ahmedi, J. observed in State of Maharashtra v. Chandraprakash
Kewalchand Jain”, “To insist on corroboration except in rarest of rare
cases is to equate a woman who is a victim of lust of another with
an accomplice to a crime and thereby insult womanhood. It would be
he be to injury to tell a woman that her story of woé will mot
be elie ved unless itis“corroborated.” In Gurmit Singhitwas observed,
: Se — ae, sae
The Court, therefore, shouldera great responsibility while trying an
accused on charges of rape. They must deal with such cases with utmost
sensitivity. The Courts should examine the broader probabilities of a
case and not get swayed by minor contradictions or insignificant dis-
crepancies in the statement of the prosecutrix, which are not of a fatal
nature, to throw out an otherwise reliable prosecution case. If evidence
of the prosecutrix inspires confidence, it must be relied upon with-
out seeking corroboration of her statement in material particulars.””
The Court’s observation that delay in lodging FIRis not material when
properly explained; that frial of sexual offence shallbe conducted in
caméra; that thére shall not be harassing cross examination; and there
shall bé restraint from making loose observation “about the character
of the prosécutrix, has potentiality ofbringing gfeat change” Minor
contradictions in evidences given by the prosecutrix owing to trauma,
hesitation and Shame and little delay in complaint did not obstruct
Jayanti Rani v. State ofW.B., 1984 Cri LJ 1535 (Cal); Jarnail Singh v. State of Rajasthan,
1972 Cri LJ 824 (Raj).
6 Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217: AIR 1983 SC 753:
1983 SCC (Cri) 728.
6° Pratap Misra v. State of Orissa, (1977) 3 SCC 41: 1977 SCC (Cri) 447, Tukaram v. State
of Maharashtra, (1979) 2 SCC 143: 1979 SCC (Cri) 381; Puttan v. State of U.P., 1972 Cri LJ
270 (All).
7 The Indian Evidence Act has been amended to this effect by incorporating S. 114-
A.
6 As insisted in Ram Kishan Aggarwala v. State of Orissa, 1976 SCC (Cri) 244; Bishram
Bahorik Satnami v. Emperor, AIR 1944 Nag 363; Boya Chinnappa, (1951) Mad 973.
6 (1990) 1 SCC 550: AIR 1990 SC 658; see also Bharwada Bhoginbhai Hirjibhai v. State
of Gujarat, (1983) 3 SCC 217: 1983 SCC (Cri) 728. .
316.
70 State of Punjab v. Gurmit Singh, (1996) 2 SEG 384: 1996 SCC (Cri)
in India (Butterw orths, New Delhi 2008)
71 See for discussion, Dipa Dube, Rape Laws
at p. 7.
584 Crimes against Women and Law’s; Response Thereto
conviction of the offender? Treating the rape complainant on par with

other complainants undermines the basic purpose of rape law that rec-
ognises equal sexual autonomy of women.”
Thirdly, in evolving a rule that the character, Teputation or status
of a raped victim was not a relevant factor for consideration by the
court while awarding the sentence to a rapist, the Court was keeping
in mind decency and honour of womanhood” In State ofMaharashtra v.
Madhukar Narayan Mardikar’>, reversing the finding of High Court, the
Supreme Court sentenced the police inspector for attempt to commit
rape and observed, “evena women of easy virtue is entitled to privacy
and no one can invade her privacy as and when he likes.”
Fourthly, victim compensation principle is activated responding to
the fact that tape impairs: personal relationship, brings emotional cri-
sis, and disturbs the opportunities” Award of compensation for viola-
tion of right to dignified life and personal liberty under Article 21 is
another dimension of victimological orientation of rape law”
Fifthly, appropriate or adequate punishment’ has been insisted in
several cases so that it will operate as deterrent. Arijit Pasayat, J. in
Puttaraja case observed, “Any liberal attitude by imposing meager sen-
tences or taking too sympathetic a view merely on account of lapse of
time or considerations personal to the accused only in respect of such
offences will be result-wise counterproductive in the long run, and
against societal interest, which needs to be cared for and strengthened
by the required string of deterrence inbuilt in the sentencing system.””9
Quite contrast to this, in Raju the Supreme Court had adopted an unduly
lenient approach to the accused persons by characterising them as vic-
tims of sexual passion and imposing nominal punishment.” This was
” State of Karnataka v. Puttaraja, (2004) 1 SCC 475.

” Anne M. Caughlin, “Sex and Guilt” (1998) 84 Virginia Law Review 1.
4 State of Haryana v. Prem Chand, (1990) 1 SCC 249.
7?-(1991). 1:SCC 57:-1991,SEC (Cri):1;
”° Delhi Domestic Working Women’s Forum v. Union ofIndia, (1995) 1 SCC 14; P. Rathinam
v. Union of India, 1989 Supp (2) SCC 716; C. Thekkamalai v. State of T.N., (2006) Cri LJ 1997
(Mad). Where a compensation of Rs 5 lakhs was awarded when a police personnel had
committed rape.
” Railway Board v. Chandrima Das, (2000) 2 SCC 465 where a Bangladeshi woman
was awarded with a compensation of Rs 10 lakhs for being gang raped in yatriniwas
of railway. Since the right is available to non-citizens also, the reach of the right is very
wide. See, for discussion, Dipa Dube, supra, n. 71 at pp. 150-59,
”* For rape, punishment is prescribed in Ss. 376(1) and (2). Minimum punishment is
imprisonment for seven years’ and it may extend to 10 years’; rape of one’s own wife
below the age of 12 years’ is two years’. For aggravated forms of rape the punishment
is imprisonment for a term not less than 10 years’ and it may be extended to life
imprisonment.
” State of Karnataka v. Puttaraja, (2004) 1 SCC 475,
"Raju v. State of Karnataka, (1994) 1 SCC 453: 1994 SCC (Cri) 538: AIR 1994 SC 222,
Sexual offences 585
i n
cena
e
subject to scathing public criticism." There are also instances where
rape is associated with murder, death penalty is imposed.
Sixthly, opportunity to conduct trial for rape in camera and the
statutory obligation upon media not to disclose the identity of the
rape victim have made the trial procedure fair and fearless.*? A path-
breaking initiative was taken by the Rajasthan High Court by direct-
ing that rape trial should be completed within four months’; victims of
violence were to be given immediate medical and financial assistance:
and that victims shall not be harassed in cross-examination.*
However, judicial interpretation of Section 375 cannot be considered
as free from defects in allstage of legal development. In Tukaram v. State
of Maharashtra tate rapecaseyoverruling the High Court’s judg-
ment, the Supreme Court held that sexual intercourse committed by a
police constable uponagirl inpolice custody, who had come there to
give some statement regarding marriage, by putting her in fear of death
or hurt, did not amountto rape in the absence of clear eviderices about
by her and lackof consent on herpart.
resistance The High Court had
held that mere passive or helpless surrender of the body and its resig-
nation to the other’s lust induced by threats or fear cannot be equated
with the desire or will. The Supreme Court declined to hold this view
on the basis of circumstantial evidence because the victim was taken
by the police constable in front of her relatives and the medical evi-
dence indicated that the victim was used to sexual intercourse. The
Supreme Court’s verdict in Tukaram was widely criticised and was the
° ° : 2) EE. hy es
cause of public agitation.” In response to the public criticisms, in 1983
Section 376 IPC was amended and Sections 376-A, 376-B, 376-C and
376-D were added. Sec114-A
tio wasn
added to the Indian Evidence
Act to impose burden of proof. upon the accused in case of custodial
rape. The post-reform cases largely exhibit high sense of humanistic
approach. Even before the amendment in cases like Krishan Lal a pro-
victim approach was adopted by the Supreme Court lest the law court
would live in an unnatural world.*”
81 See Kirti Singh, supra, n. 48 at p. 110.

8 Kamata Tiwari v. State of M.P., (1996) 6 SCC 250; Dhananjoy Chatterjee v. State of W.B.,
(1994) 2 SCC 220: (1994) Cr LJ 82 (SC).
83 State of Punjab v. Gurmit Singh, (1996) 2 SCC 384: 1996 SCC (Cri) 316.
8 The case was relating to rape of a German lady tourist by two autoricksaw drivers.
The case was decided by fast track court by using DNA evidence within a span of two
weeks of its occurrence. See, Dipa Dubey, supra, n. 71 at p. 174.
8 (1979) 2 SCC 143: 1979 SCC (Cri) 381. y Be
supra,
8 See for discussion, Dipa Dube, Rape Laws in India, at pp. 91-93; Kirti Singh,
n. 48 at p . 83-86.
667: AIR 1980 SC
vi Krishan Lal v. State of Haryana, (1980) 3 SCC 159: 1980 SCC (Cri)
psychology
1252 where V.R. Krishna lyer, J. observed, “we must bear in mind human
potency of the victim's
and behavioural probability when assessing the testimonial
and Law's Resp
nst Women C
Crimes agaiE onse Thereto
586 PS i Y
NAI
scope of punishment
As a result of amendment to Section 376, the
maximum term of
for rape was enltanced from imprisonment for the
10 years’ to imprisonment for a tenotrm less than seven Bilas but
endto 10 years’ and
which may befor life or for a term, which may ext
adequate
shall'also be liabletofine. However, the sentencing court, for
ent for a term
and special reasons, may impose sentence of imprisonm
ion 376
of less than seven years’. The newly added Clause (2) of Sect
prescribes heavier penalty ofrigorous imprisonment fo arterm which
shall not be less than to years’ but which may be for life and shall also
be liable to fineinspecific circumstances mentioned there under. Such
circumstances include custodial rape by police officer; custodial rape
by public servant by abusof e his official position; custodial rape By
erso then. in
manage ment or on the staffof a jail or remand home or
tion
abuse of his posirape , wowith
of pregnant ma n e about
knowledg
these circumstances (except the non custodial rape of woman below

the age of 12 years’) where sexual intercourse by the accused is proved
and the question is whether it was without the consent of the woman
alleged to have been raped, and she states in her evidence before the
court that she did not consent, the Court shall presume that she did
not GoHSSAr a
“The application of Section 376(2) read with Section 114-A of Indian

Evidence Act has been effective in a number of cases. In State of
Maharashtra v. Chandraprakash Kewalchand Jain® where a police inspec-
tor took a couple staying in a lodge to police station, separated them
and later allowed the young bride come back to lodge where he raped
her, the Supreme Court restored the Session Judge’s conviction order
of rigorous imprisonment for five years’ and fine of Rs 1000. The High
Court’s acquittal order was set aside. About the different approach to
be adopted where the accused is police officer, the Court observed,
“... lf a police officer misuses his authority and power while dealing
with a young helpless girl aged about 19 or 20 years’, her conduct and
version. What girl would foist a rape charge on a stranger unless a remarkable set of
facts or clearest motives were made out? The inherent bashfulness, the innocent naivet
and the feminine tendency to conceal the outrage of masculine sexual aggression are
factors which are relevant to improbabilities the hypothesis of false implication...To
forsake these vital considerations and go by obsolescent demands for substantial
corroboration is to sacrifice common sense in favour of an artificial concoction called
‘Judicial’ probability. Indeed, the court loses its credibility if it rebels against realism.
The law court is not an unnatural world.”
88 State ofMaharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550: AIR 1990
SC 658.
Sexual offences 587
er
behaviour must be judged in the backdrop
of the situation in which
she was placed. The purpose and setting, the person
and his position,
the misuse or abuse of office and the despair of
the victim which led
to her surrender are all relevant factors which must
be present in the
mind of the Court while evaluating the conduct-eviden
ce of the pros-
ecutrix. A person in authority, such asa police officer, carries
with him
the awe of office, which is bound to condition the behaviour
of his
victim. The Court must not be oblivious of the emotional turmoil
and
the psychological injury that a prosecutrix suffers on being moleste
d
or raped... On the question of sentence we can only say that when
a
person in uniform commits such a serious crime of rape on a young
girl in her late teens, there is no room for sympathy or pity. The pun-
ishment must in such cases be exemplary.”
Gang rape is another aggravated form of rape where a criminal
group overpowers a woman and renders her helpless. Both in Balwant
Singh®? and Pramod Mahto cases the deeming provision in Explanation
1 to the effect that each and every participant is guilty of the offence
irrespective of actual commission of rape was put into force, and pun-
ishment was imposed.
Under Sections 376-B to 376-D consensual sexual intercourse by a
man with a woman when she is in his custody or under his influence,
where the act does not amount to rape, is punishable with imprison-
ment for a term which may extend to five years’ and with fine. Marital
rape on wife during judicial separation (Section 376-A), or when her—
agé is below 12 years’ [Section 375 Exception and 376(1)] is punishable
wittrimprisonment for three years’.
On the whole, the statutory modifications have added more rigour
to the law of rape, especially by prescribing the minimum punishment,
and defining aggravated forms of rape and punishing the offenders
with severe penalty. The development of law exhibits one more situa-
tion of law-society interaction in legal reform. Judiciary has approached
the issues from the angle of protecting chastity and honour of women
and by using the principles of gender justice. Impact of human rights
jurisprudence has elevated the competence of law to protect women.”
As Dipa Dubey observed, the entire evolution of rape law in India has
89 Ibid: see also Prem Chand v. State of Haryana, 1989 Supp (1) SCC 286: 1989 SCC (Cri)
418.
® Balwant Singh
] v. State of Punjab,
I (1987) 2 SCC 27:: 1987 Cri i LJ 9 ZA: ;
°° Pramod Mahto v. State of Bihar, 1989 Supp (2) SCC 672: 1990 SCC (Cri) 206: AIR 1989
SC 1475. kath
P Ishwara Bhat, “Constitutional Feminism: An Overview” (2001) 2 SCC Journal
S: 1:
p
i cee ea
been appreciable
been one from darkness to light; the transition has
with considerable shifts in attitude and approach.”
t medical
However, inadequate police investigation, indifferen
e public-
reports, delay in trial, harassing cross-examinations, undu
factors to
ity and social disgust on rape victim have been impeding
on non-
the path of justice. The very definition of rape has centered
of sexual
consensual. genital intercourse, and excludes_other forms
assault, The Supreme Court in Sakshi abstained from expanding its
scope through judicial interpretation, and suggested for legislative
intervention.®* The Committeeof National Commission for Women
has suggested for enhancing the age of consent and inclusion of mari-
tal'fape within the legal-prohibition. NGOs have played significant
role in advocating the feminist cause. Change in the societal attitude,
mass awareness and sensitive investigative, prosecuting and adjudi-
cating bodies will stabilise and support the legal development.
E72 Se aig ee Oar) of woman

Fe
This offence involves indecent assault or criminal force upon any
woman with the intention of outraging her modesty or with the
knowledge that such act by the person will outrage her modesty. The
offence is punishable under Section 354 IPC with imprisonment of
either description of a term, which r
may extend to two years, or with
fine or with both. In_K.I.o. Gill_case® where a high-ranking senior
police officer made an indecent assault eR Andeoiticer a patty
the High Court'Had-quashe d of delay, triviality and
FIR on grounds
improbability of facts. The Supreme Court reversedthe High Court's
order, and directed to continuation of investigation and prosecution.
ended ately
The case ultim up in conviction of the offender. The diffi-
culty faced even by a top most lady officer in moving the legal machin-
er reflects the male biased character of the law enforcement agency.
of the
The Supreme Court was inclined to accept dictionary meaning
term by stating that modesty is the quality of being modest and inrela-
tion to woman means “womanly, propriety of behaviour; scrupulous
chastity of thought, speech and conduct.” The Court did not insist on
the element of intention. The non-cognisable character of the offence
was also problematic factor. Referring to an earlier case, Major Singh”,
where a seven-year female child was sexually assaulted, the Court rea-
soned that the uitimate test for ascertaining whether modesty has been
93
Dipa Dubey, supra, n. 71 at p. 174.
94
Sakshi v. Union of India, (2004) 5 SCC 518: 2004 SCC (Cri) 1645.
95
Rupan Deol Bajaj v. K.P.S. Gill, (1995) 6 SCC 194: 1995 SCC (Cri) 1059: AIR 1996 SC
309.
96
State of Punjab v. Major Singh, AIR 1967 SC 63.
Sexual offences
c rc 589
outraged is, is the action of the offender such as
could be perceived
one which is capable of shocking the sense of decency
of a woman, and
observed, “When the above test is applied in the present
case, keeping
in view the total fact situation, it cannot but be held that
the alleged act
of Mr Gill in slapping Mrs Bajaj on her posterior amounted
to ‘outrag-
ing of her modesty’ for it was not only an affront to the normal
sense of
feminine decency but also an affront to the dignity of the lady—‘se
xual
overtones’ or not, notwithstanding.”
More serious sexual assaults also come under Section 354-In Sudesh
Jhaku case where a father forced his six-year old daughter to consume
alcohol and involve in oral sex not amounting intercourse, the Delhi
High Court applied this section.®’ Sometimes, the section is used to
punish the person who committed the offence of rape where the Court
finds that penetration is not sufficient.* It is submitted, this is an
incorrect approach in view of the clear language in the explanation to
Section 375.
For protecting the modesty of woman IPC provides for another pro-
vision. S a, imposes punishment forinsulting the modesty of
woman. It‘provides, “Whoever, intending to insult the modesty of any
Woman, “litters- any word, makes any gesture,or exhibits any object,
intending that such word or sound shall be heard, or that such gesture
or objéct 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 with both.”
13.7.3 Kidnapping
Another offence frequently reported is kidnapping for sexual exploi-
tation. Kidnapping or abduction of any woman with the intention of
compelling her,tg marry some person against her will or for forcing
or seducing her to_illicit_intercourse_or by. criminal intimidation or
inducement for seducing her to illicit intercourse is a serious offence
punishable with maximum punishment of imprisonment for 10 years’
under Section 366. The mental element of knowledge about the pur-
pose or consequence is also sufficient in the place of intention. Inducing
a woman to go from any place by application of criminal force with
such intention or knowledge is also punishable in similar manner.
Under Section 361, kidnapping is defined as follows: Whoever takes
or entices any minor under 16 years’ of age if a male, or under 18 years’
of age if a female, or any person of unsound mind, out of the keep-
ing of the lawful guardian of such minor or person of unsound mind,
” Sudesh Jhaku v. K.C.J., (1996) 62 DLT 563.

%8 SI. (Jem) Pramodh Singh v. State of J&K, AIR 1995 SC 1964.
e
OO ee e
ap such minor
without the consent of such guardian, is said to kidn
of Haryana”
or person from lawful guardianship. In Parkash v. State
accused who had
the Supreme Court upheld the conviction of the
five and a
kidnapped and inflicted sexual assault upon a girl aged
dmother
half years’. Although there was only one eyewitness, the gran
of the child, the Court relied upon the evidence in view of the grav-
ity of the offence that paints stigma upon the child for rest of her life.
Abduction-means inducing any person to go from any place by force-
ful compulsion or by deceitful means.
Procuring and importation of minor girl for sexual abuse is pun-
abl
ishunder e s 366-A and 366-B. According to Section 366-A,
Section
“Whoever, by any theans whatsoever, induces any minor girl under the
age of 18 years’ to go from any place or to do any act with intent that
such girl may be, or knowing that it is likely that she will be forced or
seduced to illicit intercourse with another person shall be punishable
with imprisonment which may extend to 10 years’, and shall also be
liable to fine.”
It appears, textual interpretation of the provision has marred the
scope of this provision. In Ramesh v. State of Maharashtra’ reversing
the conviction of an accused under Section 366-A, the Supreme Court
held that a person who merely accompanied a woman going out to
ply her profession of a prostitute, even if she had not attained the age
of 18 years’, did not thereby commit an offence under Section 366-A
of the Indian Penal Code. It could not be said that thereby he induced
her to go from any place or to do any act with the intent or knowl-
edge contemplated by the section. The case was relating to a married
minor girl, whose stepfather was abetted to accompany her to a thea-
tre and later to a building where customers were waiting. The Court
took an archaic view of old decisional law about the meaning of the
word “seduction” that it was properly applicable to the first act of illicit
intercourse, unless there be proof of a return to chastity on the part of
the girl since the first act. Shah, J. for the Court observed, “...where a
woman follows the profession of a prostitute, that is, she is accustomed
to offer herself promiscuously for money to “customers”, and in fol-
lowing that profession she is encouraged or assisted by someone, no
offence under Section 366-A is committed by such person, for it cannot
be said that the person who assists a girl accustomed to indulge in pro-
miscuous intercourse for money in carrying on her profession acts with
intent or knowledge that she will be forced or seduced to illicit inter-
course...Seduction implies surrender of her body by a woman who is
otherwise reluctant or unwilling to submit herself to illicit intercourse
” (2004) 1 SCC 339: 2004 SCC (Cri) 290.

AIR 1962 SC 1908.
Sexual offences 591
hasehe
|S" sa tls letaeabenaie inl dee ha eieiie
eth rrr sdeace
in consequence of persuasion, flattery, blandishment or importunity,
whether such surrender is for the first time or is preceded by similar
surrender on earlier occasions. But where a woman offers herself for
intercourse for money—not casually but in the course of her profession
as a prostitute—there are no scruples nor reluctance to be overcome,
and surrender by her is not seduction within the Code.”
It is submitted, the facts of the case do not suggest sheer voluntarism
on the part of the woman. She was victim of the circumstances such
as death of father, abandonment by mother, and deceit by stepfather.
She was a married woman although minor, and hence inducing her to
move from a place with the intention of, or knowledge about possibility
of sexual exploitation of her had, in fact, amounted to encouragement
to adultery, hence an illicit conduct or punishable act under Section
366-A. To say that seduction arises only in case of first act of illicit
intercourse, and to hold that subsequent chastity alone sets the opera-
tion of law is looking to woman as a participant in crime. It should
be remembered that she was more a victim of crime rather than its
author or participant. A pro-woman interpretation could have rescued
the interest of woman.
In Jinish Lal Sah v. State of Bihar'*' the Supreme Court set aside convic-
tion by both the trial court and High Court of a tuition teacher, who
had enticed a girl and sexual relation with her. Although there was
medical evidence to the effect that the girl was about 17 years’ old,
the confusing statement by her father about her age and absence of
protest by her were relied upon to conclude that the conviction under
Section 366-A was not correct. It is submitted, the medical age proof
should be given greater authenticity and the abuse of trust reposed
upon the tuition master should rule out the factor of consent im these
types of circumstances. As in Ramesh, here also, Court’s interpretation
of Section 366-A was literal, and did not promote the spirit underlying
Section 366-A.
Section 366-B penalises importation of girl under_the age of 21
years’ from any country outside India or from the state of Jammu and
Rashmir-with intént that she may be, or knowing it to'be likely that
she will be, forced orseduced toillicit intercourse with another per-
of this offence are punishable with imprisonment,
son. Persons guilty
which may extend to 10 years’ and shall also be liable to fine. The pro-
vision was incorporated to extend international cooperation against
traffic racket in women.
1 (2003) 1 SCC 605: 2003 SCC (Cri) 395.

to
592 Crimes against Women and Law’s Response There
9 —
13.8 Offences against marriage
is one of the
Marriage is an important social institution whose sanctity
Reema
great concerns of the legal system. As viewed by Pasayat, J., in
to
Aggarwal, “Parties to a marriage tying nuptial knot are supposed
bring about the union of souls. It creates a new relationship of love,
It has
affection, care and concern between the husband and wife.”
social, religious and spiritual dimensions. Opposed to this benevo-
lent notion, the offences relating to marriage largely victimise women.
Make-believe marriage, deceitful (mock) marriage, bigamy, adultery
andenticing put women into disgrace, abuse their sexuality and deeply
alter the course oftheir life beyond their control or expectation. Gender
justice requires appropriate legal policy to deal with these crimes.
Section IPC provides, “Every man who by deceit causes any
woman who is not lawfully married to him to believe that she is law-
fully married to him and to cohabit or have sexual intercourse with
him in that belief, shall be punished with imprisonment of either
description for a term which may extend to 10 years’, and shall also
be liable to fine.” Deceit resulting in false belief and sexual relation
constitute the essence of the provision: ~ serene
According to Section 496, “Whoever, dishonestly or with a fraudu-
lent intention, goes through the ceremony of being married, knowing
that he is not thereby lawfully married, shall be punished of imprison-
ment of either description ‘ur a term which may extend to seven years’,
eT
conduct in order to protect women’s interests.1°

Bigamy is another offence dealt under IPC. Ina society that followed
the practice ‘of polygamy fora long time, bringing social reform of
monogamy, that too by not obligating some community owing to fail-
ure to enact Uniform Civil Code, has been one of the challenges that
the legal system faces. According to Section 494, “Whoever, having a
husband or wife living, marries in any case in which such matriage is
void by reason of its taking place during the life of such husband or wife,
shall be punished with imprisonment of either description for a term
which may extend to seven years’, and shall also be liable to fine.” There
have been some unscrupulous attempts to escape from.the clutches of
this provision by resorting to conversion to a religion whose personal
2 © Reema Aggarwal v. Anupam, (2004) 3 SCC 199: 2004 SCC (Cri) 699: AIR 2004 SC
18,
"8 Ashwin Nanabhai Vyas v. State ofMaharashtra, (1970) 3 SCC 95: AIR 1970 SC 1998.
Prostitution and law
593
law permits bigamy, The Supreme Court in Sarla Mudgal looked to the
intention of social reform under the provisioand n adopted purposive
interpretation, and observed, “Assuming that a Hindu husband has a
right to embrace Islam as his religion, he has no right under the-Act
to marry again without getting his earlier marriage under the Act dis-
solved. The second marriage after conversion to Islam would, thus, be
in violation of the rules of natural justice and as such would be void.“%4
By holding that for bigamous marriages also the Dowry Prohibition
Act is applicable, in Reema Aggarwal, the Supreme Court attempted to
promote the spirit behind the Dowry Prohibition Act.
Section 497 IPC, providing for punishment upon persons guilty of
adultery, has been subjected to feminist questioning. According to
Section 497, “Whoever has sexual intercourse with a person who is
and whom he knows or has reason to believe to be the wife of another
man, without the consent of that man, such sexual intercourse not
amounting to the offence of rape, is guilty of the offence of adultery,
and shall be punished with imprisonment of either description for a
term which may extend to five years’, or with fine or both. In such case
the wife shall not be punishable as an abettor.” It has been argued from
feminist perspective that it offends the concept of equality by treat-
ing the marital bed of the husband with more sanctity; that it treats
woman as the property of the husband that shall not be trespassed
without the owner’s consent; that it gives power to the husband on
the body of his wife by offering to others; that by exempting woman
from punishment in case of abetment by her it negates woman’s ability
to think, act, and face responsibility for her action. These challenges
have been rejected by the Supreme Court by adhering to protectionist
approach.’ Mallimath Committee has recommended for amending
the provision to make it more gender sensitive and impose responsi-
bility upon woman also.
13.9 Prostitution and law
Prostitution is another problematic area where male dominated dou-

ble standards galore. Law/morality’s approach to the prostitution ques-
types:
is of threeoe
tion(gi ,
104 Sarla Mudgal v. Union of India, (1995) 3 SCC 635. i

5 Referring to the argument under Section 494, the Court observed, ‘Such
legalistic niceties would destroy the purpose of the provisions. Such hairsplitting
y:
legalistic approach would encourage harassment to a woman over demand of mace
Reema Aggarwal v. Anupam, (2004) 3 SCC 199: 2004 SCC (Cri) 699: AIR 2004 SC 1418;
325: AIR
6 Sowmithri Vishnu v. Union of India, 1985 Supp SCC 137: 1985 SCC (Cri)
308; Yusuf Abdul
1985 SC 1618; V. Revathi v. Union of India, (1988) 2 SCC 72: 1988 SCC (Cri)
Aziz v. State of Bombay, AIR 1954 SC 321.
ee
bition
(i) criminalisation of prostitution by imposing total prohi
upon it either with or without their rehabilitation,
to licensing
(ii) state regulation through its legitimisation subject
mechanism to safeguard interests of health; and .
ices
(iii) allowing prostitution but criminalising exploitative pract
associated with it and rehabilitating the rescued prostitutes
or children of prostitutes.’°”
Different moral standpoints are responsible for these different policies
practiced world over. India has adopted the third model for a compre-
hensive but tolerant treatment of the prostitution question with some
welfare ideology.
The essential legislative policy underlying Immoral Traffic
Prevention Act, 1956 is not abolition of prostitution but only to inhibit
or abolish commercialised vice of traffic in women and girls for pur-
pose of-prostitution-as-an-organised means of living. It makes it an_
offence to keep brothel or allow any premise to be used as brothel
(Section 3); punishes for living on the earnings of prostitution (Section
4); punishes persons procuring, inducing or taking person for the sake
of prostitution (Section 5); and heavily penalises persons detaining
any others with or without her consent in any brothel or upon any
premise for sexual intercourse with a non-spouse (Section 6). The lim-
ited circumstances of penalty upon prostitutes include: carrying on
prostitution in or in the vieinity of public place, places of public reli-
gious worship, educationa, institution, hostel, hospital, nursing home
or other notified public place (Section 7); and seducing or soliciting
for purposes of prostitution (Section 8). Prostitutes found guilty under
Sections 7 and 8 may be detained in corrective institutions by the order
of courts. Measures for closure of brothels, seizure of property, rescu-
ing of persons from brothels, removal of prostitutes from any place
and for better conditions in protective homes are also enacted. The
power of Government to remove any prostitute from any place after
satisfying procedural requirements (Section 20) has been upheld by
the Supreme Court and High Courts as reasonable restriction upon
freedom of movement and residence of prostitutes in the interests of
general public.'* But this policy is confined to the problem of prosti-
tution and not extended to other crimes even when they are heinous.
This points out situation of double standard.
Another instance of double standard is that of not punishing the cus-
tomers of prostitution. Even when brothels are raided and customers
'” Carolyn Sleightholme and Indrani Sinha, Guilty Without Trial (Stree, Calcutta
1996) at pp. 52-55.
108 State of U.P. v. Kaushailiya, AIR 1964 SC 416; Seetharamamma v. Sambasiva Rao, AIR
1964 AP 400; Materkotla Municipality v. Mohd. Mushtaq, AIR 1960 Punj 18.
Indecent representation of women
595
are identified, there is no provision for their puni
shment. They are
not abettors also as they are not parties to keep brothel. In
2006, the
Union Government initiated the idea of amending the Act to
provide
for punishment upon the customers of prostitution. But this
has been
openly protested by prostitutes or sex workers with a fear that
this
would seriously affect their earning. It is a paradox that the oppresse
d
try hard to protect the persons responsible for their oppression in the
long run. The economic compulsions operating against their ameliora-
tion is traceable to economic imbalance.
In prosecutions for crimes under the Act, because of lack of evidence
and clever escape from crime scene and other strategies, less number
of male offenders receive punishment. Touts, traffickers and persons
living in the earning of prostitutes are not effectively brought to book
because of lax administration. Differences in the levels of conviction
point out male dominance.
Comparatively, the judicial decisions have more seriously tried to
fill the gap between morality and law in the context of amelioration of
the interests of prostitutes and rehabilitation of the child prostitutes or
children of prostitutes. Upendra Baxi'® and Gaurav Jain cases point out
this trend of development. The Supreme Court in Gaurav Jain observed,
“The prostitute has always been an object and was never seen as com-
plete human being with dignity of person; as if she had no needs of her
own, individually and collectively. Their problems are compounded
by coercion laid around them and tortuous treatment meted out to
them. When they make attempts either to resist prostitution or relieve
themselves from the trap, they succumb to the violent treatment and
resultantly many a one settle for prostitution.”""°
Further, the practice of devadasi, which has socio-religious back-
ground at the social plane, lack of consent at the individual level, lack
of education and prevalence of economic exploitation, have been super-.
ficially dealt by specific statutes. But the_practice has not been put an
end to. Thus, there is a multitude of dichotomies in the legal/moral
policies relating to prostitution. The question relating to morality in
this sphere is to be addressed by a serious human rights approach.
13.10 Indecent representation of women

ote
As depiction of woman in bad taste or in lascivious manner not only

lowers the image of woman but also incites for sexual offences, law
has aimed at sternly dealing with obscene publications and indecent
1 Upendra Baxi (II) v. State of U.P, (1986) 4 SCC 106: 1986 SCC (Cri) 381: AIR 1987
SC 191.
"0 Gaurav Jain v. Union of India, (1997) 8 SCC 114 at p. 119.
596 en and Law’s Response Thereto
Crimes against Wome
ee
ee
publication as obscene if
representation. Section 292 IPC considers any
(or its component's)
it is lascivious or appeals to prurient interest or its
upt persons who
effect as a whole is such as to tend to deprave or corr
in it. Whoever sells,
are likely to read, see or hear the matter contained
or conveys
lets to hire, distributes, publicly exhibits, imports, exports,
mpts to
obscene materials; takes part in its business; advertises or atte
term
do any of these acts shall be punishable with imprisonment for a
which may extend to two years’ and shall also be liable to fine.
The question about identification of obscenity is looked from the
perspective of freedom of speech and expression and protection of
social morals." The judicial scrutiny has not adequately considered
the way in which woman is abused in the production of pornogra-
phy and the way in which the overall impact of objectionable materi-
als is likely to lower the image of woman into an object of pleasure,
and thus gradually provoke aggressive male sexuality."* Pornography
industry thrives by using women’s body as a medium of communi-
cation for sending wrong messages about the object of sexuality to
consumers whose appetite ultimately put the women into the posi-
tion of victims.*? The approach of taking into consideration the effect
of single pieces of obscenity in isolated manner allows its circulation
whereas incremental deposition of such impressions about sex image
of woman is big threat to woman’s privacy and security. Hence, look-
ing only from the angle of protectionLo the society and the young
from.corruption of public morals falls short of astandard required for
protection of women.
‘In response to protests by various women organisations against
indecent representation of women in various forms of advertise-
_—
or injure the public morality or morals [Section 2(0)]. It prohibits pub-

lication, printing or exhibition of advertisement which contains inde-
cent representation of women in any form (Section 3), and imposes
penalty of imprisonment and fine (Section 6). For offences committed
"! In Ranjit D. Udeshi v. State ofMaharashtra, AIR 1965 SC 881 it was observed, “We
need not bowdlerise all literate and thus rob speech and expression of freedom. A
balance should be maintained between freedom of speech and expression and public
decency and morality but when the latter is substantially transgressed the former
must give way.”
'2 Hilaire Barnette, op. cit., at pp. 282-95.
"8 Mackinnon, Feminism Unmodified (Harvard University Press, 1987) at pp. 171-75;
see also, Valverde, Sex, Power and Pleasure (The Women’s Press, 1985) at pp. 124-47.
Sexual harassment in workplace
597
by the companies, the persons in charge of the busi
ness of the com-
pany are responsible. Power is conferred to the Governme
nt for entry,
search and seizure. Bona fide educational, artistic work
s and ancient
monuments are exempted from the operation of the Act.
Whether beauty contest or show is derogatory to womanhood,
or
indecent or undesirable is a question approached by the judici
ary
with an approach, “Unless any law is violated, the Court ought
not
to interfere in such matters.”"4 Relevant laws invoked in this contex
t
include Sections 292 to 294 of the Indian Penal Code, the Indecent
Representation of Women (Prohibition) Act, 1986 and state laws on
objectionable performances, public entertainment and public order.
The arguments that the very holding of beauty pageant is repugnant
to right to dignified life, equality and fundamental duty to be courte-
ous to women and also opposed to international conventions; that it is
opposed to decency and public morality by resorting to commercialli-
sation and exploitation; and that it is injurious to the body, the mind
and social existence of the entire womanhood were not upheld in their
entirety in Chandra Rajakumari case"3. The Andhra Pradesh High Court
looked to beauty as part of the universal expression and best dimen-
sion of nature and essence of human comprehension and pleasure. But
it approached the aspect of woman’s beauty from gender justice per-
spective, and observed:
“In any society, woman is the womb of the whole human race. The
quality of human race sprouts from the quality of the woman. The
depravity and demoralisation of woman speaks of the degenerated and
demoralised human race. Both from the physical, mental and social
implications the quality and the existence of the human race is directly
proportional to the expected standards of woman society. Therefore, the
society and the state are bound to preserve and maintain the women of
the society in highest standards with greatest respect and concern for
the survival of the society in particular and human race as a whole."
13.11 Sexual harassment

in workplace __-
Sue
Sexual harassmentin workplaceis aseriousirritating

factor that renders
women’s-involvérent-in_works unsafe and affects righttowork with
“dignity.” In the absence of statutory regime on this evil, the growth
14 Amitabh Bachchan Corpn. Ltd. v. Mahila Jagran Manch, (1997) 7 SCC 91 at para 9.
"5 Chandra Rajakumari v. Commr. of Police Hyderabad, AIR 1998 AP 302.
"6 [bid, para. 11 per B.K. Somasekhar, J. .
7 For an elaborate discussion see, Alok Bhasin, Sexual Harassment at Work (Eastern
Book Co,, Lucknow 2007); see also, about equality argument Martha R. Mahoney,
(1992)
“Exit: Power and the idea of leaving in love, work, and confirmation hearing”
1283; Patricia A. Gwartney- Gibbs, “Gender and
65 Southern California Law Review
Workplace Dispute Resolution: Conceptual and Theoretical Models” (1994) 28 Law
598 Crimes agains t Women andIDLaw’s Response Thereto
i a ee RRA , ORRI N SEITE E
has
of law in India due to judicial activism in the famous Vishaka case
established new potentialities in law-society interactions."* The case
came before the Supreme Court under Article 32 for enforcing funda-
mental rights of working womentinder Articles 14,19 and 21 inthe
light of societal aberrations like gang rape of working woman.
The observation of J.S. Verma, CJ. that “With the increasing aware-
ness and emphasis on gender justice, there is increase in the effort to
guard against such violations; and the resentment towards incidents of
sexual harassment is also increasing” speaks about the value of organ-
ised public opinion amidst the aggrieved class and the spirit of wres-
tling for their rights. The judicial method of reference to international
conventions, especially Convention on the Elimination of all Forms
of Discrimination Against Women, and analysis of its guiding role
in constitutional interpretation, the analysis of constitutional provi-
sions like Articles 15, 42, 51-A, 51, 253 in addition to the trio of Articles
14, 19 and 21 ultimately evolved the new law. The progress made at
each hearing was positively responded by the Union Government,
which gave its consent to the emerging guidelines as norms that gov-
ern employer-employee relation. The extraordinary character of judi-
cial law making was justified by the Court in the light of special cir-
cumstance of the case by observing, “In view of the above, and the
absence of enacted law to provide for the effective enforcement of the
basic human right of gender equality and guarantee against sexual
harassment and abuse, mcre particularly against sexual harassment
at workplaces, we lay down the guidelines and norms specified here-
inafter for due observance at all workplaces or other institutions, until
a legislation is enacted for the purpose. This is done in exercise of the
power available under Article 32 of the Constitution for enforcement
of the fundamental rights and it is further emphasised that this would
be treated as the law declared by this Court under Article 141 of the
Constitution.”
The Court prescribed the following guidelines and norms hav-
ing regard to the definition of “human rights” in Section 2(d) of the
Protection of Human Rights Act, 1993, and taking note of the fact that
the present civil and penal laws in India do not adequately provide for
specific protection of women from sexual harassment in workplaces
and that enactment of such legislation will take considerable time.
Society Review 265; Katherine T. Bartlett, “Only Girls wear Barrettes: Dress and
Appearance Standard...Workplace Equality” (1994) 92 Michigan Law Review 2541;
Catharine MacKinnon, Sexual Harassment of Working Women (1979); Anita F. Hill,
“Sexual Harassment: The nature of the Beast” (1992) 65 Southern California Law
Review 1445; Deborah L. Rode, “Sexual Harassment” (1992) 65 Southern California
Law Review 1459.
"8 Vishaka v. State of Rajasthan, (1997) 6 SCC 241: AIR 1997 SC 3011.
Sexual harassment in workplace 599
1. It shall
be the duty of the employer or other responsible persons in
workplaces or other institutions to prevent or deter the commission of
acts ofsexual harassment andto provide the procedures for the resolu-
tion, settlement or prosecution of acts of sexual harassment by taking
all steps required. ie
2. Sexual harassment includes such unwelcome sexually determined
~~
behaviour (whether directly

orby implication) as:
(a) ‘physical contact and advances;
(b) a semen Reremest forsexualfavours;
(c) sexually coloured remarks; ~~~
(d) showing pornography; and
(¢) any other tinwelcome physical, verbal or non-verbal conduct
of sexualnature =
Where any of these acts is committed in circumstances whereunder
the victim of such conduct has a reasonable apprehension that in rela-
tion to the victim’s employment or work whether she is drawing salary,
or honorarium or voluntary, whether in Government, public or pri-
vate enterprise such conduct can be humiliating and may constitute a
health and safety problem. It is discriminatory for instance when the
woman has reasonable grounds to believe that her objection would
disadvantage her in connection with her employment or work includ-
ing recruiting or promotion or when it creates a hostile work environ-
ment. Adverse consequences might be visited if the victim does not
consent to the conduct in question or raises any objection thereto.
3. All employers or persons in charge of work place whether in the
public or private sector should take appropriate steps to prevent sex-
ual harassment. Without prejudice to the generality of this obligation
they should take the following steps such as express prohibition of
sexual harassment by notification or publicity; recognitionof sexual
harassment’as a Kind ofmisconduct.in service; and‘providing appro-
priate work conditions in respect of work, leisure, health and hygiene
to further ensure that there is no hostile environment towards women
at workplaces and no employee woman should have reasonable
grounds to believe that she is disadvantaged in connection with her
employment.
4. Where such conduct amounts to a specific offence under the
Indian Penal Code or under any other law, the employer shall initi-
ate“appropriate action in accordance with law by making a complaint
with the appropriate authority.
In particular, it should ensure that victims, or witnesses are not
of
victimised or discriminated against while dealing with complaints
the
sexual harassment. The victims of sexual harassment should have
option to seek transfer of the perpetrator or their own transfer
600 Crimes against Women and Law's: Response Thereto
as
5. Where such conduct amounts to misconduct in employment
plinary action
defined by the relevant service rules, appropriate disci
should be initiated by the employer in accordance with those rules.
6. Whether or not such conduct constitutes an offence under law
or a breach of the service rules, an appropriate complaint mechanism
should be created in the_employer’s organisation-for-redress of the
complaint made by the victim>Such complaint mechanism should
ensure time bound treatment of complaints.
7. The complaint mechanism, referred to in (6) above, should be
adequate to provide, where necessary, a Complaints Committee, a spe-
cial counselor or other support service, including the maintenance of
confidentiality. }
8. Employees should be'allowed to raise issues of sexual harassment
at workers’ meeting and in other-appropriate forum- it Should be
and
affirmatively discussed in employer-employee meetings:
9.Awareness of the rights of femalé employéés in this regard should
be created in particular byprominently notifying the guidelines (and
appropriate legislation when enacted on the subject) in a suitable
manner. .
“0>-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 all steps necessary and reasonable to assist the affected person in
terms of support and preventive action.
11. The Central and Stace Governments are requested to consider
adopting suitable measures including legislation to ensure that the
guidelines laid down by this order are also observed by the employers
in Private Sector.
The Court directed that the above guidelines and norms would be
strictly observed in all workplaces for the preservation and enforce-
ment of the right to gender equality of the working women. These
directions would be binding and enforceable in law until suitable leg-
islation is enacted to occupy the field.
It is submitted, the guidelines are comprehensive, unambiguous
and pragmatic. The ee State Governments have incorporated
these.principles in the Condtict Rules of Civil Servants, although a
full-fledged legislation governing all the institutions is not yet enacted.
This speaks about the lack of integrated approach to deal with the
evil.
In a subsequent case, Apparel Export Promotion Council, the
Supreme Court has not only reiterated the Vishaka norms but also
sternly dealt with the conduct of the delinquent Superior Officer who
''? Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759: AIR 1999 SC
625.
Sexual harassment in workplace
e e eee elll 601
had harassed, pestered and subjected his lady subordinate by a con-
duct which is against moral sanctions and which did not withstand
the test of decency and modesty although there was no actual assault
by him. Dr. A.S. Anand, CJ’s judgment reflected a judicial policy,
clearly in favour of gender justice. He observed, “In a case involving
charge of sexual harassment or attempt to sexually molest, the Courts
are required to examine the broader probabilities of a case and not
get swayed by insignificant discrepancies or narrow technicalities or
dictionary meaning of the expression ‘molestation’. They must exam-
ine the entire material to determine the genuineness of the complaint.
The statement of the victim must be appreciated in the background of
the entire case. Where the evidence of the victim inspires confidence
the Courts are obliged to rely on it. Such cases are required to be dealt
with great sensitivity. Sympathy in such cases in favour of the Superior
Officer is wholly misplaced and mercy has no relevance.”
The legal development in this sphere has filled the gap with satis-
factory legal principles without controversies or conflicts. It was also
inevitable because of the fact that legislative response on these types
of matters is disappointingly.slow.——~"~ hea Sree
teat.”
of sexual harassment; stipulates procedure for setting up these com-

mittees; and prescribes the time limit within which the enquiry and
taking of action against the accused shall be completed. It provides
for monetary compensation to be paid by the accused to the woman
if the complaint was found to be true. The Bill is not yet passed by
Parliament.
In D.S. Grewal v. Vimmi Joshi’? at issue was the conduct of Hitendra
Bahadur, Vice Chairman of Managing Committee of Army School
run by a society, who wrote a love letter to the respondent school
teacher and alleged to have made advances to her. When she com-
plained to the Chairman DS Grewal, not only did the latter reject her
complaint as unsupported by clear evidence but terminated her from
service based on two anonymous complaints after asking for expla-
nations. The High Court of Uttaranchal found a clear case of sexual
harassment, and directed the Ministry of Defence to take disciplinary
action against the two officers. The Supreme Court, in appeal, slightly
modified the High Court order by asking the High Court to consti-
tute a three member Complaints Committee headed by a lady to find
whether the petitioner was subjected to sexual harassment. Based on
the Complaints Committee’s report disciplinary action was to be taken.
20 (2009) 2 SCC 210.
to
602 : Response There
Crimes against Women and Law’s
Committee was
The failure of the employer to constitute Complaints
and costs were
regarded as serious violation of Visakha guidelines,
of manda-
awarded against the management. It is submitted, the idea
sham disci-
tory Complaints Committee is appropriate one as it avoids
plinary proceedings and baseless complaints.
13.12 Role of National Commission-forwomen™
The need for a permanent body to look into the matters.of deprivation
of rights of women and promotion of their interests was realised by the
Céntral Government in 1990, and it enacted the National Commission
for Women Act. The activities of informational importance, which a
Commission like NCW-involves in, not only unearth facts about the
extent of protection actually available to women and thus add to pub-
lic discourse on the subject, but also influence the parliamentary delib-
eration, administrative supervision and policy formulation towards
better protection of women.
The NCW is a.collegiate body consisting of a Chairperson, five
members anda Membér Secrétary. All these office bearers are to
be nominated by the Central Government for a maximum term of
three years. Vacancy may arise also from resignation, and removal
by Central Government on account of insolvency, conviction for an
offence of moral turpitude, unsoundness of mind, incapacity, refusal
and unauthorised absence for three consecutive meetings. While the
Chairperson shall be a person committed to the cause of women, the
other members shall be persons of ability, integrity and standing in
the-field of law making, trade unionism, management of an indus-
try or organisation committed to increasing the employment poten-
tial of women, women’s voluntary organisations (including women
activists), administration, economic development, health, education or
social welfare. The Member Secretary shall be from top bureaucracy
or expert in the field of management. Thus, the composition of NCW
is contemplated to promote the interests of women. The NCW may
appoint committees necessary for dealing with special issues. an
The NCW shall perform any or all of the following functions as per
Section 10 (1) of the Act.
(a) investigate andexamineall matters relating to the safeguards
provided for women under the Constitution and laws;
(b) present to the Central Government, annually and at other
times, reports on the working of those safeguards;
(c) make recommendations for effective implementation of those
safeguards, for improving the conditions of women by the
Union or any State;
Role of National Commission for women
603
(4) review the existing provisions of the Constitution and other
laws affecting women, and recommend for amendments
to
overcome shortcomings, if any;
(e) take up ace of violation of the provisions of the Consti-
tution and other laws relating to women with the’appropri-
ate authorities; —
(f) look into complaints and take suo motu notice of matters
relating to . Ton 7
(1) deprivation of women’s rights;
(i) non-implementation of laws enacted to provide protection
to women and also to achieve the objective of equality
and development; and
(1) non-compliance with policy decisions, guidelines or
instrtictions aimed at mitigating hardships and ensur-
ing welfare and providing relief to women, and take
up the issues arising of such matters with appropriate
authorities;
(g) call for special studies or investigations into specific: prob-
lems or situations arising out of discrimination and atroci-
ties against women and identify the constraints so as to rec-
ommend strategies for their removal;
(h) undertake promotional and educational research so as to sug-
gest ways of ensufing due representation of women in all
spheres and identify factors responsible for impeding their
advancement, such as, lack of access to housing and basic
services, inadequate support services and technologies for
reducing drudgery and occupational health hazards and for
increasing their productivity;
() participate and advice on the planning process of socio-eco-
nomic development of women; 3
() evaluate the progress of the development of women under the
Union and any State;
(k) inspect or cause to be inspected a jail, remand home, wom-
en’s institution or other place of custody where women are
kept as prisoners or otherwise, take up with the concerned
authorities for remedial action, if found necessary;
() fund litigation involving issues affecting large body of
women; ‘ :
cal reports to the Govern ment on any matter
(m) make periodi
pertaining to women and in particular various difficulties
under which women toil; and
(n) any other matter which may be referred to it by the Central
Government.
604 Women and Law’s Response Thereto
Crimes against ”
i
l e N nen ,
itted by
The Central Government is required to place the report subm
randum
NCW before each House of Parliament along with a memo
explaining the action taken or proposed to be taken or reasons for non-
ard
acceptance, if any, of such recommendations. The NEW shall forw
a copy of any report or its part relating to any matter to which State
Government is concerned, which shall cause it to be placed before
the Legislature of the Sate along with action taken report. It is per-
tinent to note that the principle of cooperative federalism is invoked
for enhancing the efficacy of the Act. In order to look into the com-
plaints about deprivation of rights of women, the NCW. is vested with
the investigative powers as that of civil court. For this purpose, it can
summon and enforce attendance of any person, require discovery and
production of any document, receive evidences on affidavit, requisi-
tion public records, and-issue commissions for examining witnesses
and documents.
~Although the functions of NCW are generally relating to scrutinis-
ing and evaluating the data about protections available to women,
they are not confined only to that. Promotion of research on gender
justice, calling for special study on gender discrimination, inspection
of places of custodial detention, advising the planning process, and
funding of pro-women litigation reflect positive and activist role of
the NCW. No doubt, NCW is primarily a fact-finding body, and not a
remedial agency. But its advocacy and research functions and its-par-
ticipative role in plannin;; process raise high expectations about pro-
woman approaches. In the course of two decades of its functioning
the NCW has investigated some of the instances of sexual harassment;
suggested for reforms in legal provisions; drafted proposals of new
law like Domestic Violence Bill; and contributed to the growth of law
relating to rape by suggesting scheme for victim compensation.
13.13 Conclusions
Indian criminal law has substantive components and policies to deal

with the offences against women. People’s participation and civil soci-
ety’s initiatives have their own contribution to sensitise the law to dis-
pel the gender biases. While the major trend of development has wit-
nessed application of human rights norms and welfare policies, some
of the remnants of male chauvinism continue to haunt the unfortu-
nate victims and the process of administration of justice. The reforms
in substantial law owing to progressive judgments of the Supreme
Court and legislation need to be supported by strong law enforcement
mechanism.
CHAPTER 14
“SiS Vuh ie wala Cai eceaerito tenes Sat allielaebatiabditans
LAW, CHILD WELFARE AND SOCIAL

TRANSFORMATION
‘ ) K
\ KA q
14.1 Introduction
as non-entity and mere material objects to a position of human dignity

where they are not only made free from exploitation and abuses but
also enabled to develop their full potentiality with fair access to food,
health and education. Social change towards better world for children
to enjoy their right to be child is an inspiring objective beneath this
policy. Growth of human rights perception regarding child spear-
headed the movement for creating child friendly environment for his
' Bestow blessings on those

Little, innocent lives
Bloomed on earth,
Who have brought the message
Of joy from heavenly garden—Rabindranath Tagore, cited in Swapan Kumar Sinha,
Child Labour in Calcutta: A Sociological Study (Naya Prokash, Calcutta 1991) at p. 40.
2 Per K. Ramaswamy, J. in Gaurav Jain v. Union of India, (1997) 8 SCC 114: AIR 1997
SC 3021”Children of the world are innocent, vulnerable-and-dependent.They are all
curious, active and full of hope. Their life should be full of joy and peace, playing,
learning and growing. Their future should be shaped in harmony and cooperation.
Their childhood should mature, as they broaden their perspectives and gain new
experience. Abandoning the children, excluding good foundation of life for them, is
a crime against humanity.”
606 | al Transformation
Law, Child Welfare and Soci
te the greatest bless-
wholesome development. Human rights constitu
mous potentiality of
ings on the people of tender age as they have enor
me of protecting
influencing the legal and social system to build a regi
children and initiating social transformation.
the most
How best a society and its legal system treat children,
is the
vulnerable section of the society, with care, love and affection
measure of humanism that it cherishes. A society that iscaring for
child exhibits the signs of development and maturity? As viewed by
the Supreme Court in Bandhua Mukti Morcha, “A child of today can-
not develop to be aresponsible and productive memberof tomorrow's
society unless an environment which is conducive to his social and
physical health is assured to him. Every nation, developed or develop-
ing, links its future with the status of the child. Childhood holds the
potential and also sets the limit to the future development of the soci-
ety. Children are the greatest gift to the humanity.” The urgency with
which childcare policy shall be implemented is highli hted by Gabrial
the Nobel Laureate, who said, “We are guilty of many errors
Mistral, i)
; il ett
o Nee +
1 pe
and faults, but our worst crime is abandoning the children, neglecting
the foundatiorr of life.: Many of the things we need’€an wait. The child
cannot; right now is the time his bones are being formed, his blood is
a= en eet s i a Ts ng °
being-made and the senses are being developed. To him we cannot

answer ‘tomorrow’. His name is ‘today’.
A humanist approach towards children is embedded in Indian cul-
ture. Ancient Indian jurisprudence emphasised that there could beno
real gifforsale-of one’s child.® This meant that any unjustified parting
with-the-childis unlawful. Kautilya prescribed that it is the duty of
the village elders to ensure proper development of the infants” The
collectivism of joint family life provided shade of protection to them,
3 National Policy for the Welfare of Children stated, “The nation’s children are
a supremely important asset. Their nurture and_solicitude. are our responsibility.
Children’s prograrime should find a prominent part in our national plans for the
development of human resources, so that our children grow up to become robust
citizens, physically fit, mentally alert and morally healthy, endowed with the skills
and motivations needed by society. Equal opportunities for development to, all
children during the period of growth should be our aim, for this would serve our
larger purpose of reducing inequality and ensuring social justice. “The great poet
Milton put it admirably when he said, “Child shows the man as morning shows the
day”
* Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161: AIR 1984 SC 802.
> Cited by Justice Shivaraj Patil, “Children-Supreme Asset of the Nation” AIR 2000
Journal 49.
° Apastamba Dh.S, II-5-13 “danam krayadhrmascapatyasya na vidyate”; P.V. Kane,
History of Dharmashastra, Vol. III at p. 639 “abalanam balo rajah”.
” Book II Ch. 1 of Kautilya’s Arthashastra (Ed.), Shama Shastry (9th Edn., Padam,
Mysore 1988) at p. 47; Also see, Kanthi Rao, Bharatiya Nyaya Paddhati (Mysore 1985) at
p. 315.
Introduction ae
= 993 = se ueneerteainntdid doen 2b ll ar rrr
and the ultimate protection of the child and its property came from
the king because of the precept that king is fountain of strength to the
weak.’ Son was regarded as means of spiritual salvation. Family law
on maintenance, property right, adoption and marriage evinced desire
in safeguarding the interests of children.”
The western jurisprudence on rights of children started with par-
ent’s claim of patria potestas on behalf of children that the world at large
would not interfere with his custody and control of the child, with
the industrial services from the child and with the chastity of female
child." The interests protected in these contexts are primarily eco-
nomic interests of the parents to have the exclusive service of the child
rather than natural rights of children.** Children were considered only
as economic instruments for earning income for parents. Claiming
obedience, respect, service and economic support from the child was
within the legal capacity of the parent vis-a-vis the child. Obligation
towards child’s education, care and development was utmost a good
gesture and munificence rather than a binding principle.3 Employment
of child labour in hazardous works came into vogue as a boon to both
the employers and parents in Europe and North America in the back-
ground of increasing unemployment owing to industrial revolution.
Legislatures responded to the problem by imposing restrictions on
the evil practice. While the substantive due process approach of the
Apex Court in America came in the way of eradication of child labour,”
commerce clause was relied upon to uphold federal law restraining
the practice of child labour. In India the common law approach is
deviated from in the post-colonial period, as can be gathered from the
Supreme Court’s observation in Rosy Jacob case that “Children are not
mere chattels, nor are they playthings for their parents. Absolute rights
of parents over the destinies and the lives of their children has in the
modern times changed social conditions, yielded to the considerations
® Medhatithi on Manu “baladhanam rajna swadhanvatparipalaniyam’; also see,

Sankhalikhita.
9 Manu, V-137.
Manu, III-389, Mitakshara, II-175 (aged parents and infants to be maintained
first); girls were to be given in marriage only after puberty (Manu, IX-94, Gautama,
XVIII-21). |
and
"' Henry Maine, Ancient Law (1930), at pp. 208-10; Julius Stone, The Province
Function of Law (Associated General Publications Pty. Ltd, Sydney) at pp. a
12 In cases on assault and battery against the child or injury to health arising from
of the
rape-imposed pregnancy the claims were based on loss of income and company
292 and Irwin
child rather than injury to the child. Flemington v. Smithers, (1826) 2 C&P
v. Dearman, (1809) 11 East 23. Julius Stone, supra, n. 11 at pp. 522-23.
3 Julius Stone, supra, n. 11 at p. 524
4 Adkins v. Children’s Hospital, (1923) 261 US 525: 67 L Ed 785.
608 Law, Child Welf are and Social Transformation
ig eg ec i
up in anormal
of their welfare as human beings so that they may grow
balanced manner to be useful members of the society.
ren and
The international community responded to the plight of child
develop-
developed an inspiring legal framework for a‘comprehensive
of the
ment of children all over the globe. The most important task
legal systems was to make this tender section of the society free from
the exploitative attitudes and actions of the elderly people, which had
resulted in evils like child labour, sexual abuse and deceitful practices
and reorient the whole legal system towards building the capacity of
the potential human resources and make way for real social progress.
The Charter of Rights of Children or the Geneva Declaration made
by the [LO7H192 4 to protect them against hazardous employ-
in order
ments was thé first humanist effort to help their amelioration. While
the Universal Declaration of Human Rights and the Covenants gave a
serious thrust to human rights ideology benefitting all sections of the
society including children, protection and welfare of children had to
be built through special schemes enriched by noble vision. Through
a series of Recommendations and Conventions, the ILO_had sensi-
tised the public policy and influenced national policies especially
against child labour. The oh Declaration of Rights of Children, 1959
which indicated that “the child by reason of his physical’and natural
immaturity, needs special safeguards and care, including appropri-
ate protection, before as »~ell as after birth” got concretised into the
UN Convention on Rights of the Child, 1989. The Convention rec-
ognises that the child for the full and harmonious development of
his or her personality, should grow up in a family environment, in
atmosphere of happiness, love and understanding. It considers that
the child should be fully prepared to live an individual life in society,
and brought up in the spirit of the ideals proclaimed in the Charter
of the United Nations, and in particular in the spirit of peace, dignity,
tolerance, freedom, equality and solidarity. India became signatory to
the Convention in 1992 by solemn undertaking to implement various
provisions of the Convention.
Four_important sets of rights recognised forchildren in_ the
Convention without any discrimination are: right to survival, right to
protection, right to development and right to participation. Right f6
survival includes the right to life, the highest attainable standard of
health, nutrition, and adequate standard of living (Articles 6 and 24).
This obligates the State Parties to take appropriate measures to dimin-
ish infant mortality, extend medical assistance, combat diseases and
malnutrition and promote physical and mental health. The policy of
non-discrimination hits against disfavour to girl children, who, in fact,
'S Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840: AIR 1973 SC 2090.
Introduction 609
PS. EL YSN Ds RNG LSE aR ere ee rt
face the problem of “missing”. Since survival shall be with human dig-
nity, right to a name, nationality and access to family environment of
care is safeguarded by the Convention (Article 7). Right to protection
includes freedom from all forms of exploitation, physical or mental
violence, abuse (including sexual abuse), inhuman or degrading treat-
ment and neglect: Prohibition on child labour, protection in case of
separation from parents arising from adoption or other circumstance
(including juvenile justice system) and special protection in situations
of emergency and armed conflicts come within the protection policy
(Article 19). The right to deve includes
lopm the right
ent
to education,
support for childhooddevelopment and care, social security, and the
right to leisure, recreation and cultural activities (Articles 27, 28 and
29). State’s duty to provide compulsory primary education, to expand
the opportunities of higher and vocational education and to mould
the educational system into an instrument of personality development
and preparation for responsible civic life has also been emphasised.
The right to participation includes respect for the views of the child,
freedom of expression, access to appropriate information, use of his
or her own language, and freedom of thought, conscience and religion
(Articles 12 to 18).
From the perspective of child welfare, three factors need greater
attention: first, all these rights are interconnected, and hence, their
comprehensive protection is vital. Second, all the state parties, soci-
ety, media and the voluntary organisations have specific and positive
responsibilities towards child welfare. Third, the private actors like
parents, adoptive parents, employers and other individuals who have
interface with child shall act with responsibility and seltf-restraint,
avoiding exploitation of children. The Government_of India. has rati-
fied the Convention in 1992 and committed itself to review national
and State legislations and bring them in line with the Convention
and to activate the administration and society to implement the basic
principles: This is in continuation of the constitutional commitment
towards elimination of child labour and exploitations, protection of
their health and promotion of their development through education
and other assistance.
As a result of all these factors, the legal system and the society as
a whole shall respond seriously to the policy of child welfare both
in minute details of legal norms and in their sincere implementation.
Since cooperation of, or control over the private actors 1s very much
in this
required for the success of legal policy, bringing social change
nce
sphere through public action is a delicate task. The Oslo Confere
physical, men-
on Child Labour, 1997 observed, “Investment in the
children is an ethical,
tal, spiritual, moral, and social development of
610 Law, Child Welfare and Social Transformation
CE
ention on
social, and economic imperative for all societies. The Conv
promo-
the Rights of the Child constitutes the legal framework for the
l and cultural
tion and protection of the civil, political, economic, socia
-
rights of all children in an integrated manner.” Child labour, inter
country adoption, sexual exploitation of children and compulsory pri-
mary education are some of the most problematic areas in which law's
efficacy is severely challenged. The present chapter lays focus on this
subject.
14.2 Prohibition of child labour |

ant
14.2.1 Background
In the pre-industrial agricultural society of India, children used to
work as-helpets ‘and learne inrsthe hereditaril y determined family
occupation under the benign supervision ofelders. The workplace was
extension of family atmosphere and the natureofwork wassimple due
to simple technology. The advent of industrialisation.and urbanisation
resulted in exodus of rural population to urban centers. The child had
to work as individual person and under an employer or without the
supervision of his guardian. Exposed to hazards of chemicals, poi-
Sons. and dangerous works; subjected to repetitive, monotonous and
unpromising drudgery; and-to widely stretched working hours with-
out adequate leisure and auequate pay, the children were imperiled-of
their physical health and mental growth. The industrial revolution
started in the West deprived the sources of traditional employment
and generated vast demands for manpower due to which child labour
became outrageously manifest. Child labour is a social evil becatse
of the
hazardsof the work, denial of opportunity for natural develop-
ment, exploitation arising from low wages, loss of bargaining power
‘on the part of adult workers due to availability
ofcheap child workers
and loss of valuable opportunity for schooling towards better equip-
ment with competence.” As the Committee on Child Labour (1979,
headed by Sri M.S. Gurupadaswamy) has concluded, “child labour is
economically unsound, psychologically disastrous and physically as
well as morally dangerous and harmful.”"8 af See. sar:
'© Report of the Committee on Child Labour (Gurupadaswamy Committee, 1979)

at p. 8 (2.3).
” As viewed by the Gurupadaswamy Committee, “Labour becomes an absolute
evil in the case of child when he is required to work beyond his physical capacity,
when hours of employment interfere with his education, recreation and rest, when
the wages are not commensurate with the quantum of work done and when the
occupation he is engaged endangers his health and safety” at p. 9 (2.7).
8 Tbid, at p. 10 (2.10).
Prohibition of child labour 611
14.2.2 Magnitude of the problem _
That the problenr orchild labour is serious is evident from the follow-
ing statistics. According to the 1991 census, the population of working
children in India is 11.28 millions. Although as compared to 13.64 mil-
lions in 1981 there is trend of decline, other research surveys estimate
higher incidence of child labour.” ee in India accounts
for 5.2
ot Ore rural than urban phenom-
enon as 80 per cent of the working children are in rural areas engaged
in agricultural and allied activities.” Qnly 6 percent of.child workers
engage Jn-actwitiss prohibited under the Child Labour (Prohibition
and Regulation) Act. For rest of the working child population, the law
is not providing protection as either the work is not hazardous or the
child“works within family economic enterprise. However, stressful
conditions of work and denial of opportunities to have formal educa-
tion”and joyous childhood are the features in all these spherés..The
numberof street children in major seven cities of India has crossed
5,00,000."" Further, numerous orphaned children, children of prosti-
tutes, children of construction workers live in especially difficult cir-
cumstances.
14.2.3 MBSCauses
cg
Multitude of causes has engendered and perpetuated the problem
of child labour. Chronic poverty has been the major cause for child
labour. While half of India’s population lives below poverty line, the _
4 per cent of the land. In order
lower 50 per cent households own only
the family income, which is many a time dwindled by
toSupplement
ill hea h, death and drunkenness of elders, the children are compelled
to shed sweat of the brow.” The vicious circle of poverty, illhealth,
illiteracy, exploitation and child labour continue the unfortunate sit-
uation. Migration to urban places has also ended in the practice of
child labour. The Oslo Conference on Child Labour (1997) said, “Child
labour is bothaconsequence and a cause of poverty. Thus, strategies
for poverty reduction and elimination neéd to address this problem.
Use of child labour slows economic growth and social development,
and it constitutes a severe violation of basic human rights.” Secondly,
enthusiastic
employers prefer children to adults, as they are active,
Child Rights in India
According to ILO it is23.2 millions in 1996. See, Asha Bajpai,
(Oxford University Press, New Delhi 2003) at p. 152.
sity Press, New Delhi
2” Lakshmidhar Mishra, Child Labour in India (Oxford Univer
2000) at p. 24.
Paper, “The Right to be a Child” (March 1994) at
21 UNICEF India Background
p. 18.
22 Supra, n. 16 at pp. 10-11.
612 Law, Child Welfare Transformation
and Social SS
2 a NA ASAD
to discipline or control
and amenable inaddition to being cheap. Some
of the works like carpet making and other finger works can be bet-
ter handled by children. Thirdly, education is regarded by the poorer
classes as confined to upper caste strata of society, and hardly relevant
for them. Number of children within the family also dissuades for
education. Fourthly, child workers are not organised on lines of tradé
unions, which can militantly agitate for their cause.
14.2.4 International legal norms”

As early as in 1924 the International Labour Organisation adopted
a charters for Aten called Declaration of Geneva. It adopted 18
Conventions and 16 Recommendations relating to prescription of
minimum age of workers in different types areas of works, regarding
medical and health safety measures for child workers and on dura-
tion of work. The Convention_59 of the ILO prescribes that no child
below the age of 14 shall be employed to work in any factory or mine
or engaged in any other hazardous employment. India is party to this
Convention. : :
The Human Rights development in international arena championed
the cause of children’s rights against exploitative labour as a part of the
scheme for ensuring child’s development and right to human dignity.
Article 32.ofthe UN Conyention on Rights of the Child, 1989 reads as
below: rs ;
1. States Parties recognise the right of the child to be protected
from economic exploitation and from performin g
any work
that is likely to be hazardous or to interfere with thechild’s
education, or ‘tg be harmful to the child’s health or physical,
mental, Stiaal onl orsocial development. ~~ ~~
2. States Parties shall take legislative, administrative, social and
educational measures to ensure.the implementation of the
present article. To this end, and having regard to the relevant
provisions of other international instruments, States Parties
shall in particular: bette eat
(a) provide for a minimum age or minimum ages for admis-
sion to employment;
(b) provide for appropriate regulation of the hours and con-
ditions of employment; and os :
(c) provide for appropriate penalties or other sanctions to
ensure the effective enforcement of the present article.
* Paras Diwan and Piyushi Diwan, Children and Legal Protection (Deep & Deep
Publications, New Delhi 1994) at p. 202.
Prohibition of child labour
i 613
a
In order to prohibit and eliminate worst forms of child labour the ILO
adopted Convention 182 in 1999, which prohibited the practice amidst
children up to the age of 18 years’. The worst forms of child labour
comprises: si 3 Tone
(a) all forms of slavery or practices similar to slavery, such as the
sale and trafficking of children, debt bondage and serfdom
and forced and compulsory labour, including forced or com-
pulsory recruitment of children for use in armed conflict;
(b) the. use, procuring or offering a child for prostitution,
for the production of pornography or for pornographic
performances; ~
(c) the use, procuring or offering of a child for illicit activities,
in particular for the production andtrafficking of drugs as
defined in the relevant international treaties; and
(d@) work-which, by its nature or the circumstances in which it is
carried out, is likely to harm the health, safety or morals of
children* (Article 3).
Each Member of the Convention shall design and implement pro-
grammes of action to eliminate as a propriety the worst forms of child
labour (Article 6.1); and taking into account the importance of education
in eliminating child labour, take effective and time-bound measures
to take preventive, protective, rehabilitative steps and ensure access to
basic education and vocational training for all children removed from
the worst forms of child labour (Article 7.2).
Since the above Conventions are human rights instruments, under
the approach adopted in Vishaka® and other cases and in view of the
Bangalore Declaration, judiciary regards it as filling the gap and influ-
encing the municipal law.
14.2.5 Domestic Law in India
Th Royal Commission on Labour (1929) had noticed wide prevalence

of the practice of child labour in India with long hours of work, with
% According to the ILO Recommendation No. 190 (1999) Cl. 3 in determining

hazardous nature of work, consideration shall be given to work which exposes
children to physical, psychological or sexual abuse; work underground, under
water, at dangerous heights or confined spaces; work with dangerous machinery,
equipments and tools or which involves the manual handling or transport of heavy
children
loads; work in an unhealthy environment which may, for example, expose
agents or processes, Or to temperatures, noise levels, or
to hazardous substances,
such
vibrations damaging to their health; work under particularly difficult conditions
the night or work where the child is unreasonab ly
as work for long hours or during
employer. |
confined to the premises of the
3011; People’s Union for
2 Vishaka v. State of Rajasthan, (1997) 6 SCC 241: AIR 1997 SC
301: AIR 1997 SC 568.
Civil Liberties (PUCL) v. Union ofIndia, (1997) 1 SCC
re and Social Trans
Law, Child Welfa— formation
614 — ——
ons of the
very low wages and without leisure. The recommendati
and
Commission were discussed in the Central Legislative Assembly
d, which
the Children (PledgingofLabour) Act, 1933 came to be passe
child
may be said to be the first statutory enactment dealing with
chil-
labour, It had the objective of eradicating the pledging of young
dren by their parents. It imposed penalty upon the employers and par-
ents ‘and invalidated the agreements pledging the children below the
age of 15 years’. Many statutes were passed thereafter. The Employment
of Children Act, 1938 listed two categories of em loyments in which
children below the age of 14 and 15 years’ respectively were prohibited
from employment. The-first category consisted of occupations such
as bidi making, carpet weaving, cement manufacture, cloth printing,
mica Cutting, shellac manufacture, soap manufacture, tanning and
wool cleaning. However, employment of children exclusively within
the family enterprise or without hired labour or in state-aided schools
was exempted. The second category consisted of occupations con-
nected with railway transportation and ports. Employment of children
between the age group of-15and 17 was required to comply with the
requirements of leisure and exclusion of night shift. The Act provided
for supervision of law’s enforcement through the inspectorate and by
imposition of penalties. The Labour Investigation Committee consti-
tuted by the Government of India in 1944 referred to the adequacy of
legislative measures on childlabour but open disregard of the law by
the factories owing to lack or adequate supervision. The Labour Bureau
Study disclosed employment of underage children, either uncertified
or having false age certificate, in small-scale industries such as match
manufacturing, cashew-processing, carpet-weaving and beedi-rolling
industries. |
The founding fathers of the Constitution have bestowed thoughts
on the protéction of the child from exploitative works and on best of
its development. The clause
on prohibition of employment ofchildren
_ in factories, etc. was incorporated without any controversial discus-
sion. Theré was an unsuccéssftil-attempt by Professor Shibban Lal
Saksena to raise the age limit to 16 years’ so that larger section of chil-
dren would be given better protection in view of physical weakness
of children in India to bear the workload.”* The constitutional policy
on child protection is comprehensive as it is spread over children’s
entitlement arising from both prohibition of child labour and guar-
antee of right to education and state’s duty to implement Directive
Principles. According to Article 24, “No child below the age of 14 years’
shall be employed to work in any factory or mine or engaged in-any
other hazardous employment.” Under Article 39(e) state has the duty
° CAD, Vol. VII, 3-12-1948, at p. 815. vee
615
to ensure that_the health and strength of workers, men_and women,
nd'the ytender
force
age of children are not abused and that citizens a¥é not
economic necessity to enter‘avocations. unsuited to their age
~or strength; an [ that children are given opporttini and ties
facilities to
develop ima healthy manner and in conditions of freedom and ‘dig-
nity and that childhood and youth are protected against explosion and
against-moral and material abandonment [Article 39(f)]. According to
Article 41, “The State shall, within the limits of its economic capacity
and development, make effective provision for sécuring the right to
work, to education and to public assistancein cases of unemployment,
old age, sickness and disablement, and in other cases of undeserved
want.” Sincere-application of this provision avoids the neéd for child
labour. Further, State’s duty to provide for free and compulsory edu-
the age of 14 years’ which
cation for all childyen ntlthey complete
enhanced to the position of
is now duty to &Fundamental
correlative
Right under Article 21-A has also clear implication of eradicating child
labour. Moreover, duty of the State ‘under Article 47 to raise the level
of nutrition and the standard of living and to improve public health
has necessary ramification on rights of the children against hazard-
ous labour. The overall thrust of these provisions is prohibition of
child labour in hazardous employment and regulation of child labour
in non-hazardous employment. Thomas Paul views, “Implicit in this
view is the notion that poor children have no choice other than work,
butatthe same time the state as parens patriae, should see to it that they
are ‘prevented from hazardous employment.”” In view of integrated
perception of the spirit of the Constitution for the welfare of the vul-
nerable, the distinction needs to be re-examined, and the responsibil-
ity of educating the children should be shouldered by the state.
In order to implement the constitutional and international obliga-
tion towards eradication of child labour in different occupations, as on
today, the following legislative enactments were in force, and continue
after ie5 a (Prohibition and Regulation) Act, 1986 with
necessary amendmen ts age. ~
about minimum
(i) Section |67 of Factories Act, 1948 provides, msNo child who has
not completed be required or allowed to
his 14th year shall
work in any factory.”
(ii) Section 26 of Plantation Labour Act, 1951, “No child who has
not completehis d 12 (after 1986, 14) years’ shall be required
or allowed to work in any plantation.”
Untangling the Constitutional

2” Thomas Paul, “Child Labour-Prohibition v. Abolition:
73.
Tangle” (2008) 50 JILI 143 at p. 157; also see, at p.
616 Welfare and Social Transformation
Law, ChildS
a ea E
“N o person under
(iii) Section 109 of Merchant Shipping Act, 1951,
engaged or car
15 years’ (after 1986 14 years’) of age shall be
ried to sea to work in any capacity in any ship, except
(a) ina school ship, or training ship, in accordance with the
prescribed conditions; or
(b) in a ship in which all persons employed are members of
one family; or
(c) ina home-trade ship of less than two hundred tons gross;
or
(d) where such person is to be employed on nominal wages
and will be in the charge of his father or other adult near
male relative.”
(iv) Section 45 of Mines Act, 1952, (i) “Ng child shall be employed
ia Sahn 16,Nor shallanychild be allowed : in
in any (open
ornd
any part of a mine which is below grou
ng)
cast workiin which any mining operation is being car-
ried on. (2) After such date as the Central Government may,
by notification in the Official Gazette, appoint in this behalf,
no child shall be allowed to be present in any part of a mine
above ground where any operation connected with or inci-
dental to any mining operation is being carried on.”
(v Section 21 of Motor Transport Workers Act, 1961,.“No.child
—
shall be required or allowed to work in any capacity in any

motor transport uadertaking.”
(vi) Section 3 of Apprentices Act, 1961, “A person shall not be
for being engaged as an apprentice to undergo
qualified
apprenticeship training in any designated trade, unless he
(a) is not less than 14 years’ of age; and
(b) satisfies such standards of education and physical fitness
as maybe prescribed:
Provided that different standards may be prescribed in rela-
tion to apprenticeship training in different designated trades
and for different categories of apprentices.
(vii) Section24 ofBeedi and Cigar Workers (Conditions of Employ-
ment) Act, 1966, No child shall be required or allowed to
work in any industrial premises.”
(vii) Child Labour (Prohibition and Regulation) Act, 1986 (Act 61 of
1986) which replaced the Employment of Children Act, 1938.
(ix) Shops and Commercial Establishment Acts under different
nomenclatures in various States.
The inadequacy of the Employment of Children Act,.1938 was real-
ised in People’s Union for Democratic Rights v. Union of India*®, a case
—Y
8 (1982):3. SCC 235: 1982:SCC (L&S) 275.

(seat tectsale Selon ite rrr rr
that involved forced labour and child labour in construction industry.
P.N. Bhagwati, J. observed for the Supreme Court, “There can be no
doubt that notwithstanding the absence of specification of construc-
tion industry in the Schedule to the Employment of Children Act, 1938,
no child below the age of 14 years’ can be employed in construction
work and the Union as also every State Government must ensure that
the constitutional mandate is not violated in any part of the country.”
The judgment was an eye opener about the lacunae of the law and the
need to reform in order to be comprehensive.
The Child Labour (Prohibition and Regulation) Act, 1986 which was
enacted to refofnythé legal measure, has the policy of both prohibition
and regulation. Section 3 of this Act has prohibited employment of
children in Certain occupations and processes. Part A of the Schedule
to the Act contains the names of the occupations in which no child
can be employed or permitted to work viz. any occupation connected
with eS rb PAO EUE OF ,
(a) transport of passengers, goods or mails by railway;
(b) cinder picking, clearing of an ash pit or building operation
in the railway premises;
(c) work in a catering establishment at a railway station involv-
ing the movement of a vendor or any other employee of the
establishment from one platform to another or into or out of
a moving train;
(d) work relating to the construction of railway station or with
any other work where such work is done in close proximity
to or between the railway lines; and
(ar a port authority within the limits of any port.
Part B contains names of some processes in which no
child can be employed or permitted to work, if carried in
workshops:
(1) bidi-making;
(2) carpet-weaving;
(3) cement manufacture, including bagging of cement;
(4) cloth printing, dyeing and weaving;
(5) manufacture of matches, explosives and fire-works;
(6) mica-cutting and splitting;
(7) shellac manufacture;
(8) soap manufacture;
(9) tanning;
(10) wool-cleaning;
(11) building and construction industry.
Se a I OOO NI Oh
The Schedule may be expanded by the Sentral Government Bynou
o the Child
cation in Official Gazette on the basis of recommendation
5).
Labour Technical Advisory Committee (Sections 4 and
13 occupations and 51 processes have been added to Part A and
Part B of the Schedule in 1998. Non-inclusion of agricultural processes
that involve use of pesticides and other chemicals or machineries and
omission of morally hazardous avocations like prostitution and beg-
ging have been criticised by writers.” There is also a view_thatany
/
\
’ \
employment that denies to the child its right to primary education

S.
should-be regarded as hazardous. In the light of express guarantee of

compulsory primary education of children below the age of 14 years’
as a Fundamental Right, and imposition upon their parents or guard-
ians the fundamental duty to provide opportunities of primary educa-
tion, this view becomes indispensable.
does 1not apply
The prohibition under Section 3 is not absolute as it
to any workshop wherein any. process is~carried on by the occupier
with the aid of his family or to any school established by, or receiving
assistance or recognition from Government. In practice, since nearly
80 per cent Of India’s full time and part time child workers are trapped
in a situation where the parents of working children and the families
work jointly within family economic enterprises like farms, household
industries and petty trade, by virtue of this proviso to Section 3, they
fall outside the ambit of the Act2° Further, cunning acts of employers
in establishing looms anc. other equipments in the houses of children
make them escape from the clutches of law. In view of the fact that a
work does not cease to be hazardous work only on account-of-being
putin family atmosphere and in view of rampant abuse of this proviso,
it is appropriate to drop this proviso to make the law more effective.
Moreover, requirement of having “workshop” for conducting prohib-
ited processes in Section 3 is problematic because if the same work is
done in an informal place other than workshop it will not attract legal
prohibition. Since the basic approach of the Act resembles that of the
Act of 1938, not much substantive development is witnessed.
The policy of regulation of child labour in circumstances other
than those where it is prohibited is another major component of the
Act. Nochild shall be required or permitted to work in any establish-
ment in excess of such number of hours as may be prescribed for Such
establishment or class of establishments. Each period of work shall not
————
Asha Bajpai, supra, n. e19 at pp. on174-75. A Bill prepared by Kanti Singh in 2000
suggests for a comprehensiv definiti of the expression “hazardous work” followed
by elaborate measures for abolition, rehabilitation and welfare of child labour.
” Lakshmidhar Mishra, supra, n. 20 at p. 25; Z.M. Shahid Siddiqui, “Child Labour:
Prohibition and Regulation” (1994) I.L.I. Conference Proceedings on Children C-25 at
p it
619
exceed three hours, which shall be preceded
or follby
ow inter
ed val of
one hour. There 1s alsoprohib
upon empl
it oyin
io g child
nren in night
shift, for overtime or in dual establishments (Section 7). Provision
for
compulsory weekly holiday, requirement upon the employer
or occu-
pier to inform the details of child employment to the inspector
and to
maintain register about child workers and facilitating the conditions
of health and safety through observance of rules framed by the appro
-
priate Government are the other measures regulating the pract
ice
of child labour (Sections 8, 9, 11, 13). However, in spite of regulatory
frameworkthe , very permission for child Tabour involves compro-
mise with the interests of childrenand has far reaching effect on their
career. About the payment of wages to the child \worker, the legislation
tion of such difference would certainly go a long way in increasing

employment potential for grown up and dissuade the employer from
employing child labour.” It is essential that the State should step in to
retard the trend to employ child labour.
Regarding. enforcement_of the Act, penalty clause and procedure
are relied upon. For violating the prohibition under Section 3 either
imprisonment for three to 12 months’ or fine of Rs 10,000 to 20,000 or
both may be imposed (Section 14). For repeated violations enhanced
penalty of double magnitude may be imposed. In case of non-compli-
ance with the requirements of giving notice to the inspector, keeping
of registers with correct entries or display of notice containing abstract
of Section 3 imprisonment for a month or a fine extending to Rs 10,
ooo or both may be imposed. A positive feature of the Act is that any
person, police officer or inspect mayor
file a complaint of the commis-
sion of an offence Under the Act in any court of competent jurisdic-
tion Section 16). In MC. Mehta y, State of T.N», developing restitutive
jurisprudence from Section 14 of the Act and relevant constitutional
provisions the Supreme Court observed:
“Taking guidance therefrom, we are of the view that the offending
employer must be asked to pay compensation for every child employed
in contravention of the provisions of the Act a sum of Rs 20,000 and the
Inspectors, whose appointment is visualised by Section 17 to secure com-
pliance with the provisions of the Act, should do this job. The inspectors
31 A. Srirama Babu v. Chief Secy., Govt. of Karnataka, ILR (1997) Kar 2269.
SCC (L&S)
32 M_C. Mehta (Child Labour Matter) v. State of T.N., (1996) 6 SCC 756: 1997
49: AIR 1997 SC 699.
62U Law, Child Welfare and Social Transformation
OO
child employed in
appointed under Section 17 would see that for each
employer pays Rs
violation of the provisions of the Act, the concerned
n as Child
20,000 which sum could be deposited in a fund to be know
employer
Labour Rehabilitation-cum-Welfare Fund. The liability of the
presently
would not cease even if he would desire to disengage the child
empioyed.” .
Creative application of Section 14 on the above line is one of the most

significant developments in the matter of rendering justice to the child.
However, the issues relating to creation, handling and managing of the
Fund, the authority to involve in these, and the method of enforcing
the obligation of employers are not yet settled, resulting in prolonged
litigation in High Courts>? Regarding inspectorate, issuing of age
certificate and composition of the Child Labour Technical Advisory
Committee there are provisions.
14.2.6 Judicial approach

a RS ET
There are some landmark judgments rendered by the Supreme Court

both in recognising and remedying the pathetic situation of child
workers. In Rajangam v. State of T.N34, employment of children in beedi
manufacture was considered as violating the Beedi and Cigar Workers
(Conditions of Employment) Act, 1966 and the CLPRA 1986. The Court
observed, “Tobacco manufacturing has indeed health hazards. Child
labour in this trade showld therefore be prohibited as far as possible
and employment of child labour should be stopped either immediately
or in a phased manner.”
In a landmark judgment, M.C. Mehta v. State of T.N.°, the Supreme
Courtby-an order of 31 October ras Asia Ther Sees aeeh31
December 1985, there were 221 registered match factories employing
27338 workmen of whom 2941 were childrén; and that the manufactur-
ing process of matches and fireworks is hazardous, giving rise to acci-
dents including fatal cases. Keeping in view the provisions contained
in Articles 39(f) and 45 of the Constitution, it gave certain directions as
to how the quality of life of children employed in the factories Could be
improved. The Court also felt the néed of constituting a committeé to
oversee the directions given. Subsequently on newspaper report about
occurrence of accidents in Sivakasi involving child labour, the Court
took suo motu cognisance and appointed a Committee to report about
the facts. The Committee reported that State of Tamil Nadu should be
directed to ensure that children are not employed in fireworks fac-
tories; that the children employed in the match factories for packing
* A batch of cases is pending before Karnataka High Court on these matters.

4 (1992) 1 SCC 221: 1992 SCC (L&S) 105.
*° (1996) 6 SCC 756: 1997 SCC (L&S) 49: AIR 1997 SC 699,
a ental a NR ee a
purposes must work in separate premises for packing for
a duration
not more than six hours a day; proper transport facilities and facilities
for recreation, diet, insurance, socialisation and education
should be
provided either in the factory or close to the factory; piece-rate wages
should be abolished and payment should be made on monthly basis
commensurate to the work done by the children; and that Welfare Fund
shall be created. The Court realised that child labour is an all-India evil
and that without a concerted effort, both of the Central Government
and various State Governments, this ignominy would not get wiped
out. It thought it fit to travel beyond the confines of Sivakasi to deal
wit the hissue in wider spectrum and broader perspective taking it
as a national problem and not appertaining to any one region of the
country.
After discussing the constitutional and international obligations
towards eradication of child labour, the,Court issued directions for
suryey of child labour within six months’, for identifying the most
hazardous employments keeping in mind the National Child Labour
Policy annoby the Government
unce d of India; and for giving alterna-
tive employmenttoadult member of the family of child worker nearest
tothe placeof residence of the family. In those cases where alterna-
tive entployment would not be made available erated the parent
or guardia the concerned child would be paid thé income, which
of n
would be earned on the corpus, which would be a sum of Rs 25,000
foreach child, every month. The employment givenorpayment’ made
would-céase to be operative if the child would not be sent by the parent
or guardian for education. On discontinuation of the employment of
the child, his education would’ beassured ‘in suitable institution with
a view to make it a better Citizen. fT
Insofar as thenon-hazardous jobs are concerned, the Inspector shall
have to see that the working hours of the child are not more than four
to six
hoursa day and it receives education at least for two hours each
day. Regarding wages to be paid to the child workers in non-hazard-
ous works, the Court observed, “We take note of the fact that the ten-
der hands of the young workers are more suited to sorting out the
manufactured product and process for the purpose of packing. We
are, therefore, of the opinion that in consideration of their adaptabil-
ity at least 60 per cent of the prescribed minimum wage for an adult
* Following industries are identified as hazardous: the match industry in Sivakasi,

Tamil Nadu; the diamond polishing industry in Surat, Gujarat, the precious stone
, Uttar
polishing industry in Jaipur, Rajasthan; the glass industry in Firozabad
d, Uttar Pradesh, the hand-mad e carpet
Pradesh; the brass-ware industry in Moradaba
industry in Mirzapur-Bhadohi, Uttar Pradesh, the lock-making industry in Aligath,
, Andhra Pradesh; the slate industry in
Uttar Pradesh; the slate industry in Markapur
Mandsaur, Madhya Pradesh.
e
e e e e
to them.
employee in the factories doing the same job should be given
way of pre-
Our indicating the minimum wage does not stand in the
r rate is
scription of a higher rate if the State is satisfied that a highe
ren to
viable.” It is submitted, in view of the larger interests of child
have access to their fundamental right to education under Article 21-A,
this approach needs rethinking and equal pay shall be mandated to
retard the tendency to employ child labour. About thely provide
education to children employed in non-hazardous works, 1L. id own
thaf the entire cost of education shall be borne by the employer. The
Court also difected that regarding eradication and regulation of child
labour, each district should be a unit and that with the help of separate
cell in the Labour Department the problem shall be tackled in a con-
certed manner.
Another pronouncement of the Court having far-reaching impor-
tance is Bandhua Mukti Morcha v. Union of India?”. The facts disclosed
prevalencof e child labou r weaving industry in Varanasi,
in carpet
Mirzapur, Jaunpur and Allahabad areas and enormity of the problem
uf exploitation to which the children are subjected. Children rang-
ing between five to 12 years’ had been kidnapped from the Village
Chhichhori (Patna Block, District Palamau in Bihar) in January and
February 1984 in three batches and were taken to village Bilwari in
Mirzapur District of U.P. for being engaged in carpet-weaving centres.
the.all
They were forced to work day_as slaves and were subjected to
physical torture. The Co nmission/Committee visited 42 villages and
found in all, 884 looms engaging 42 per cent of the work force with the
children below the age of 14 years’.
The Court elaborated the need for education of children®* and
referred to the international commitment to provide compulsory pri-
mary education. It directed to evolve such steps consistent with the
scheme laid down in M.C. Mehta case, as to provide:
(1) compulsory education to all children either by the industries
itself or in coordination withit by the State Government ta the
children employed in the factories, mine or any other indus-
try, organisedor unorganised labour with such timings as
is convenient tO impart compulsory education, facilities for
secondary, vocational profession and higher education; os
(2) apart from education, periodical health check-up;
” (1997) 10 SCC 549.
3 The Court observed, “If the children are better equipped with a broader human
output, the society will feel happy with them. Neglecting the children means loss to the
society as a whole. If children are deprived of their childhood—socially, economically,
physically and mentally—the nation gets deprived of the potential human resources
for social progress, economic empowerment and peace and order, the social stability
and good citizenry.”
SSS
o iss cea ee a n 623
(3) nutrient food etc, and
(4) entrust’ thetesponsibilities for implementati
on of the
principles.
A limitation in both the cases is that full-scale abolition of
child labour
of all types was not aimed. The Court was conscious about practi
cality.
It observed in Bandhua Mukti Morcha: we
“Tetal banishment of employment may drive the children and mass
them up into destitution and other mischievous environment. mak
ing them vagrant, hard criminals and social risks etc. Theref
ore, while
exploitation of the child must be progressively banned, other simultane-
ous alternatives to the child should be evolved including providing edu-
cation, health care, nutrient food, shelter and other means of livelihood
with self-respect and dignity of person. Immediateban ofchild labour
would be both unreal and counterp
ist roductiv
ice. Ban of employment
of children must begin from most hazardous and intolerable activities
like slavery, bonded labour, trafficking, prostitution, pornography and
dangerous forms of labour and the like’9
The idea of total prohibition of child labour was not endorsed by the
conference of State Labour Ministers also in 1997 on the ground that
this objective had to be realised progressively and could not be effected
overnight. They agreed about the urgency of providing free, compul-
sory and universal primary education.
The High Court of Karnataka in A. Srirama Babu‘ looked to the
issue of eradication of child labour in sericulture industry, especially
weaving of silk sarees, where children in the age group of five to eight
were engaged in huge numbers. While the Schedule to CLPRA is silent
about this industry, the Court enunciated the criterion of hazardous
work. To be hazardous, the work should be either inherently inju-
rious to the children or the conditions of work are harmful to their
health. The Court held that all employments which cripple the health
of a child and which disable him from being a healthy member of
the society should be treated as a hazardous industry. It directed the
Commissioner of Labour to issue notices to the deviant establishments
for appropriate action. One shocking disclosure made by the Court
is with regard to improper use by the State Administration of funds
released by the Central Government.
In New India Assurance Co. case*' the Karnataka High Court upheld
the award of compensation to the child worker or his family ‘n case
of permanent disablement and death in case of accidents occurred
during employment irrespective of the question whether they are
% Ibid.
4 A. Srirama Babu v. Chief Secy., Govt. of Karnataka, ILR (1997) Kar 2269.
41 New India Assurance Co. Ltd. v. Rachaiah Basaiah Ganachari, ILR (2000) Kar 4743:
(2001) 3 Kar LJ 135
application of
employed in hazardous or non-hazardous works. The
Court rea-
CLPRA would add to penal liability of the employer, the
oner, the
soned. About the punitive measure by the Labour Commissi
require-
Court in P. Sooryanarayana* viewed that compliance with the
ment of notice and hearing should precede such measures.
14.2.7 National programme ofaction

Eradication of child labour is a part of national-labour.policy. In-1987,
a project based on plan of action was envisaged for its implementa-
tion. Realising that the policy can be implemented only gradually and
through selective approach in high child labour concentration area in
view. of vastness of the problem, National Child Labour Projects were
launched in various places. NCLP contemplated: imparting non-for-
mal education to enable the children to acquire a level of equivalence
with corresponding grade and level in formal system and thus enable
théchildren released from the work; supplementary nutrition through
mid-day meal; imparting of skills for income and employment genera-
tion; and effective enforcement of child labour law.
Prime Minister’s Independence Day speech of 1994 set trend for
withdrawal of children from workplace and putting them into schools.
Setting up the National Authority for Elimination of Child Labour,
the Prime Minister’s circular to all the Chief Ministers stated, “Child
Labour is a pernicious pr~<tice, a denial of the joy of childhood and
access to social opportunities which eventually impairs the personal-
ity and creativity of children, the evolution and growth of a full being.
Within the broad ambit of child labour, the plight and predicament
of girls is worse. Such a practice which is abhorrent to our social con-
science, therefore, shall be eradicated from our socio-economic milieu.
The vision statement focused on rehabilitation of released child labour
through residential school system without causing economic burden
upon the family and economic rehabilitation of the family of child
labour by creation of rural job opportunities. As clear from the reports
about the functioning of NCLPs, active involvement of local NGOs in
running the rehabilitation schools, avoidance of the problem of drop
outs and absenteeism by counseling, attractive nutritional programme,
generation of public awareness about the evils of child labour, and
sensitisation about welfare of workers in general have contributed to
the substantive success of NCLPs.# Paucity of adequate funds had also
obstructed the functioning of NCLPs in some areas.
” P. Sooryanarayana Shetty v. State of Karnataka, ILR (1999) Kar 4721: (2000) 5 Kar LJ
570.
‘8 Prime Minister’s Letter to All Chief Ministers of Union Territories, 10-4-1995.
“ Lakshmichar Mishra, supra, n. 20 at pp. 203-17.
625
14.2.8 The role of NGOs and trade unions
NGOs constitute important social capital for activating
at the grass-
root level the policy of preventing and eradicating the child
labour
practice and mainstreaming the released child workers into the
learn-
ing system. Identification of working children is a complicated
task
to be carried with well-planned Strategies with which the NGOs are
generally acquainted. Confidential enquiries at neighbourhood, sur-
prise visits, checking of age records, and friendly interaction with local
community without invoking hostility are the means employed in
identification. Rehabilitation of child workers assumes physical, eco-
nomic, and psychological dimensions. Making the educational institu.
tion attractive through creation of positive environment conducive to
learning with pleasure is another task in which the NGOs are quite
conversant. Counselling and motivating the children and the parents
about the need for learning and disadvantages of early labour upon
one’s career can be better handled by the NGO activists.
Some of the models adopted for child labour eradication are note-
worthy.* First, the Camp Model followed in Andhra Pradesh (MV
Foundation) involves conducting of four months’ pre-school camp for
psychological and academic preparation of prospective school chil-
dren and their parents for enrolment of children into schools. This
brings refreshing change in the attitude of parents in sending their
children to school and avoids vagrancy amidst working children. It
also brings seriousness in teaching profession, sense of confidence
amidst youth and enthusiasm amidst Panchayats. Secondly, eliminat-
ing Child labour through Community Mobilisation is a model popu-
larised by the Central Government in its NCLP. Each District Child
Labour Project is a registered society affiliated to umbrella organisa-
tion like Centre for Rural Education and Development Action involved
in withdrawing child workers from carpet looms and other work-
places and in mainstreaming them in formal education system. Face
to face interaction with parents, discussion with adult weavers, organ-
ising village level meetings for collective discussion with panchayat
members and other leaders and using the liaison with other leaders
are some of the methods employed for mobilisation of public ppin-
ion. Thirdly, weaning away the children working on railway platforms
from works and motivating them to learn in special schools is another
strategy. Fourthly, litigating against child labour either by prosecution
under Section 14 of CLPRA or by Public Interest Litigation. It can be
seen that these strategies have been fruitful in mitigating the prob-
lem to a considerable extent. The NGOs like Bandhua Mukti Morcha,
5 Ibid, at pp. 272-85.

i a
Siksha
MV Foundation, Centre of Concern for Child Labour, Bharat
Sanstha, Campaign Against Child Labour, Katha, Ankuran etc. have
contributed yeomen service to the cause.
The participation of workers’ organisations and employers’ associa-
tions have been regarded as a quantum jump in the process of eradica-
tion of child labour.** Activities like raising the awareness of workers
about child labour, dialogues with parents and employers, running of
schools for rehabilitated child workers, crusading for child education
have been instrumental in this task. Some of the employers’ unions like
Chamber of Commerce have dissuaded their members from engaging
child labour.
On the whole, prohibition and regulation of child labour is a task
participated by private and public bodies in recent times in a concerted
manner. That it has not remained as solitary venture of the State is
a tremendous positive factor in the context of law-society interaction,
where legal and moral responsibility is placed upon private actors like
parents, family, welfare institutions, employers and state.*” Collectivist
enthusiasm developed in this context will not allow sapping the elan
vitale of children due to work. Since bane of poverty is the root cause
of child labour, the larger task of economic amelioration of the vulner-
able section of the society should be aimed at as lasting solution. As
the capitalistic and feudalistic society is the breeding ground for child
labour, remedy for the same is to be found in controlling the economic
power of such economic tructure and in uprooting poverty and illit-
eracy.** Poverty can no longer be an excuse for child labour as the state
stands as the ultimate guardian of children against child labour prac-
tice.49 Education as a policy instrument for removal of children from
labour and a means of empowerment should be largely relied upon for
a desirable result.
© Ibid, at pp. 296-308.
*” N.R. Madhava Menon, “The Rights of the Child: Law, Policy and Enforcement”,
(1996) SBRRM Journal of Law 24.
* C. Pal, “Basic Framework for Child Welfare under Indian Constitution” (1981) 7
Kurukshetra Law Journal 90; B.K. Sharma and Vishwa Mittar, Child Labour and Urban
Informal Sector (Deep and Deep Publications, New Delhi); Clarence, J. Dias, “The
Child -n the Developing World: Making Rights a Reality” in N.R. Madhava Menon
(Ed.), Rights of the Child (NLSIU, Bangalore 1991) at p. 49; V.B. Coutinho, “Protecting
the Employed Child”, Ibid, at p. 95 UNICEF background paper, “The Right to be a
Child”; S.N. Jain, “Law and Child in India” in T.N. Chaturvedi (Ed.), Administration
and Child Welfare (IIPA , New Delhi 1979) at p. 81; Prakash C. Juneja, “Child in Domestic
Service—A Need for Protective Legislation” (1985) 11 Indian Socio-Legal Journal, 31;
N.K. Indrayan, “Constitutional Framework and Equality Among Children” (1982-83)
8&9, Kurukshetra Law Journal at p. 147; Joseph Vadakkethala, “Child Labour”, Ibid,
at p. 107, Y. Vishnupriya, “A Study on Child Labour” (1995) 21, Indian Socio-Legal
Journal 119.
* Asha Bajpai, supra, n. 19 at p. 204.
Adoption of children and related problems 627
14.3 Adoption of children and related problems
——
an instrument to help the orphans, destitute

and abandoned children.
In both the circumstances protection of thé interests of children gains
great importance as any element of commercialisation of relationship
shall be excluded. The problem of inter-country adoption associated
with various types of abuses has raised serious issues about adequacy
of law and of its social justice components. From the perspective of
social transformation, it is a positive development that law’s role in
this sphere has been that of infusing the human rights elements and
ensuring protection of the interests of children rather than silently tol-
erating private transactions based on commercialism.
14.3.2 Adoption in personar

personal law
eo is a legal concept followed in Hindu Law whereas other per-
sonal laws do not provide for the same. Even Hindu texts had cer-
tain reluctance about the practice of adoption, perhaps as it involved
fictitious element and difficulties of compromise>" The genesis of the
practice is traceable to the belief that for crossing the hell of ‘put’ there
was need for son and the consequent psychology of sonless person
that is better to havea substitute of ason than to have.no son.” Child —
welfare was not the direct objective, but individual salvation through
Koran does not
child was. Ti AlthoughPO
the adoptedmace recognise the institu-
ain ON tNpractice of adoption
of ption,
ado
tion there is recognition of customary
*n some converted Muslim communities subject to declaration by the
misation
parties»? Further, acknowledgement of paternity and legiti
* Paras Diwan, supra, n. 23 at pp. 56-57.

others.” Manu, IX-180, “The one
51 Rigveda: “O Agni, no son is he who springs from obtained results similar to
who tries to cross the hell with the help of secondary sons
water with the help of seave.”
those obtained by one who tries to cross the
na, 2-16.6.
82 Manu, IX-137-8; Yaj., 1-178; Baudhaya
rahiman v. Avoomma, AIR 1956 Mad 244;
53. The Koran, Vol. XXXIII at pp. 4, 9; Abdu
1984 Mad 7.
Moulvi Mohammed v. S. Mohaboob Begum, AIR
E
CO E E
es are agree-
overcomes the problem of illegitimate children if the parti
able.
l act
Under old Hindu Law, conception of adoption as a sacramenta
had thé implication of keeping theillegitimate and orphan children
outside the purview of adoption+* It was regarded that.adopted son
should reflect the image of natural son. A daughter's son or sistér’s son
could not be adopted. The doctrine of relating back was followed as a
matter of expediency.» Law used to look to the problem from the angle
of sonless person rather than from the angle of adopted child. The
Hindu Adoptions and Maintenance Act, 1956 (HAMA) made the insti-
tution of adoption, a secular one equipped to solve the social problem
of orphans, abandoned.and refugee children.
From the perspective of social changes spearheaded by the HAMA,
following factors are worthy of consideration. Firstly, tnere is posi
tive development regarding the issue, who may be taken in adoption.
Since any Hindu child can be adopted irrespective of caste and rela-
tion to the Xdopter, there is scope for adoption of orphans, abandoned
children or children whose paternity is not known or an illegitimate
child5* Unlike the position earlier, adoption of daughter's or sister's
child or wife’s sister’s child is also permissible. By providing for adop-
tion of female child, which was not permissible under oldHindi Law,
gender discrimination is removed,” The provision that requires mini-
mum age difference between adoptive father and adoptive daughter,
and adoptive mother and idoptive son, checks ponies exploitation.
Further, the age of the child given in adoption shal l 15 years’
not exceed
unless there is a contrary custom. There is prohibition for adoption of
married child [Section 10(771)].
Secondly, the issue who can give in adoption has witnessed com-
fortable developments. HAMA requires mother’s consent when the
father gives his childin adoption (proviso to Section
7).A putative
father, step-father and adoptive father have no competence to give
the child in adoption as they do not come within the definition of
“father”. A mother
of an illegitimate child has power to give the child
in adoption and the consent of putative fatherisnot essential. While
the mother of a legitimate child has no right to give in adoption except
in case of incapacity of the father (her husband), she has such right
after the death of the father even if it is contrary to his intention. The
guardian of a child may give him or her in adoption when both the
parents are dead or incapacitated due to renunciation of the world or
* Paras Diwan, supra, n. 23 at pp. 58-59.

°° Srinivas Krishnarao Kango v. Narayan Devji Kango, AIR 1954 SC 379.
*° S.10 of HAMA.
” S. 11(i/) of HAMA.
are declared as of unsound mind or have abandoned
the child. The
guardian—whether person in charge of the orphanage
or the person
who brought up the child—has power to give in adoption only
with
the prior permission of the court5* The court, while according
permis-
sion for adoption, should satisfy that the proposed adoption would
be for the welfare of the child. The court will look to all the relevant
factors such as physical and moral well-being of the child, the charac-
ter, qualifications and socio-economic status of the proposed adopter
and the place to which the child is likely to be taken after adoption.
The court may refuse permission for adoption in case the applicant
seeking permission for adoption hasreceived or agreed to receive any
payment or reward in.consideration of the adoption. Thus, any effort
towards commercialisation of adoption is made futile. Presently, law
does not require court’s permission for adoption when done by the
father of mother in accordance with the provisions of the Act. It has
been commented by some scholars that court’s intervention even in
those circumstances should be made essential in order to protect the
interests and welfare of the child, especially when the widow or wid-
ower or mother of illegitimate child eagerly opts for getting rid of the
child without bothering about the welfare of the child.
Thirdly, about the issue who can receive child in adoption, the legal
development has traversed the path of social expediency. Adoption of
son is permissible when the adopter has no son, son’s son or son’s son’s
son by legitimate birth. Adoption of daughter is permissible when the
adopter has no daughter or son’s daughter. Two persons cannot adopt
the same child [Section 11(v1)]. Adoption of child of opposite sex shall
satisfy the requirement of age difference of 21 years’ between adopter
and the adopted [Sections 11 (iii & iv)]. While the original HAMA did
not permit adoption of child by the guardian, the Amendment Act
of 1962 provides for such permission in limited circumstances where
both the parents are dead or have been declared by competent court
as of unsound mind. )
Fourthly, there is categorical prohibition upon any person to receive
any consideration in any form in connection with adoption from any
person. Such act is also made punishable conduct. This policy is com-
mendable as adoption shall be made keeping in mind only the welfare
of the child, and gaining of personal economic benefit shall not be the
criterion for adoption. .
Fifthly, the effect of adoption is such that the child severs allrelations
with his or her natural-family for secular, religious and civil purposes
except the restrictions about marriage with persons if he had been a
member of the natural family (Section 12). It is only property vested
58 S_9(4) HAMA.
Law, Child Welfare and Socia l Transforma tion
630 OIE
E OTL at o Fini
E
continue
with him_ prior to adoption in his natural family that will
available
with him. Rest of the economic opportunities and properties
adop-
to him is that which is forthcoming in adoptive family. But the
tive father has right to.dispos¢ of his property inter vivos, and thus
théposition of the adopted person becomes precarious (Section 13). To
overcome this problem, natural parents resort to, ante-adoption agree-
ment with the adoptive parents committing the latter to economic obli-
gations towards the adopted child. The courts have upheld the legality
of such agreements.”
On the whole, the trend of developments in the sphere seems to be
towards better protection of the interests of the adopted children. But
whether the domestic legal framework suits to the imperatives of the
international human rights norms needs to be examined. The Preamble
to the UN Convention on Rights of the Child recognises that the child,
for the full and harmonious development of his or personality, should
grow up ina family environment, in an atmosphere of happiness, love
and understanding. According to Article 20(1) of the Convention, “A
child temporarily or permanently deprived of his or her family envi-
ronment, or in whose own best interests cannot be allowed to remain
in that environment, shall be entitled to special protection and assist-
afice provided by the State.” Contemplating that foster placement and
adoption are instances of such deprivation, Article 20(3) requires pay-
ing of due regards to the desirability of continuity in child’s upbringing
and to the child’s ethnic, religious, linguistic and cultural background.
Articlé 21 enjoins the State Parties, which recognise and permit the
system for adoption, to ensure that the best interests of the child shall
be the paramount consideration in the course of adoption. Particularly,
it provides for intervention by competent authority, compliance with
applicable procedtre and consent of the parents;-for choicé of inter-
country adoption only in case of non-availability of the opporttnity
for adoption within the country; for adequate safeguards in casé of
inter-country adoption in order to avoid improper financial gain. Itis_
submitted, absence of specific dutyon the part of adoptive parents to
provide family environment and atmosphere of love and happiness
and lack for assuabout ranc e continuity in child’s develop-
reasonable
ment are some Of the problematic factors in the existing légal-frame-
work, and they need to be rectified. a |
14.3.3 Inter-country adoption

The Roman legal concept of adoption for continuation of family’s lin-
eage had its gradual impact upon the Western legal system, with a
°° Dina Ji v. Daddi, (1990) 1 SCC 1: AIR 1990 SC 1153.

change of emphasis on charitable conduct towards the orphans
and
destitute. With the global development of philanthropy and
the
increased popu ation of orphans etc. the-need-for legal framework ~
to ‘deal with inter-country adoption was realised. The Principles’on
Declaration of Rights of Children and the Child Rights Convention
reflected the international community’s concern for children who were
subjected to transplantation from their natural family environment.
In the background of shocking state of affairs about the conditions
of internationally adopted children, the element of commercialisation
involved in the adoption process and absence of procedural safeguards
some efforts were made to provide general legal framework on adop-
tion in India which were not successful in 1972 and 1980. Distilling the
spirit of Articles 15, 39 and 24 and also creatively using the Guardians
and Wards Act, 1890 some positive developments were launched by
activist judiciary in India in a series of Lakshmi Kant Pandey cases.
Lakshmi Kant Pandey v. Union of India“, involved an allegation
that Indian childrén of tender age were under the guise of adoption
“exposed to the long horrendous journey to distant foreign countries
at
gr@at risk to their lives and the survivors were in course of time
becoming beggars or prostitutes for want of proper care from their
alleged foreign foster parents.” Relief restraining Indian based private
agencies “from carrying out 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 was sought.
The Supreme Court elaborately considered the thrust of interna-
tional guidelinés; national policy on welfaré of children, importance
of child welfare for national development, the provisions of proposed
Adoption Bill and the ethos of civilised society on caring for the child.
The Court perused the prevalent practice on child adoption. The Court
reasoned that since there is no statutory enactment in India providing
for adoption of achild by foreign parents or laying down the proce-
dure, which must be followed in such a case, resort shall be had to the
provisions of the Guardians and Wards Act (8 of 1890) for the purpose
of facilitating such adoption. In this regard, the approach of Bombay
and Gujarat High Courts,” were approved as valid. The primary object
of giving the child in adoption must be the welfare of the child. The
first option is give in adoption to adoptive parents within India.
1958 (UK).
6 Paras Diwan, supra, n. 23 at p. 89; Adoption Act,
|
61 (1984) 2 SCC 244: AIR 1984 SC 469.
Re, Rasikla l Chhaganlal Metha, AIR
6 Re, Giovanni Marco Muzzu, AIR 1983 Bom 242;
1982 Guj 193.
632 : l Transformation
Law, Child Welfare and Socia
The.Expert
The international guidelines were on the following lines:
ns on
Group convened by the Secretary General of the United Natio
also the
“the request made by the Economic and Social Council as
ra-
Commission for Social Development adopted in 1978.a “Draft decla
tion on social and legal principles relatingto the protection and wel-
tare of children with special reference of foster placement and adop-
tion, nationally and internationally.” It declared that every child has
a tight to a family. Children who cannot remain in their biological
family should be placed in foster family or adoption in preference to
institutions, unless the child’s particular needs can best be met in a
specialised facility. Children for whom institutional care was formerly
regarded as the only option should be placed with families, both foster
and adoptive. The primary purpose of adoption is to provideaperma-
nent family for a child who cannot be cared for by his or her biological
family-In considering possible adoption placements, those responsible
for the child should select the most appropriate environment for the
particular child concerned. Sufficient time and adequate counseling
should be given to the biological parents to enable them to reach a
decision on their child’s future, recognising that it is in the child’s best
interest to reach this decision as early as possible. Legislation and serv-
ices should ensure that the child becomes an integral part of the adop-
a family. Every child has a right toafamily. Gneee
héreafter at the Regional Conference of Asia and Western Pacific
held by the International Council on Social Welfare in Bombay in 1981,
draft guidelines and procedure concerning inter-country adoption
were formulated. (4) In all inter-country adoption arrangements, the
welfare of the child shall be prime consideration. (2) Biological parents
shall not be subject to any duress in making a decision about adoption.
No commitment to an adoption plan shall be permitted before the
birth of child. After allowing parents a reasonable time to reconsider
any decision to relinquish a child for adoption, the decision should
become irrevocable. It is the responsibility of the appropriate author-
ity or agency to ensure that when the parents relinquish a child for
adoption all of the legal requirements are met. If the parents state a
preference for the religious upbringing of the child, these wishes shall
be respected as far as possible, but the best interest of the child will be
the paramount consideration. (3) Before any plans are considered for a
child to be adopted by foreigners, the appropriate authority or agency
shall consider all alternatives for permanent family-care Within the
child’s own country. A child-study report shall be prepared by profes-
sional workers (or experienced personnel who are supervised by such
qualified workers) of an appropriate authority of agency, to provide
information, which will form a basis for the selection of prospective
Adoption of children and related problems
Sci cesetcpcmepspu seesaremneres cee a ta 633
adopters for the child, assist with the child’s need to
know about his
original family at the appropriate time, and help the adoptive paren
ts
understand the child and have relevant information about
him or her.
Before any adoption placement is finalised the child concerned
shall
be consulted in a manner appropriate to his or her age and level of
development. (4) Regarding Adoptive parents it was required that in
addition tothe usual capacity for adoptive parenthood, they need to
have the capacity to handle the trans-racial, trans-¢tiltural and trans-
national“aspects of inter-country adoptions. Study report on them
should disclose information about parents and other members of
the family, emotional and intellectual capacities of prospective adop-
ters, and their motivation to adoption, relationship (marital, family,
relatives, friends, community), health, accommodation and financial
position and religious affiliations and/or attitudes. (5) Inter-country
adoption arrangements shouldbe made only through Government
Adoption Authorities (or agencies recognised by them) in both send-
ing and receiving countries. They shall have experienced staff with
professional social work education or experienced personnel super-
vised by such qualified workers. In cases where the adoption is not to
be finalised in the sending country after placement, it is the responsi-
bility of the appropriate authority or agency in both the sending and
receiving countries to ensure that the adoption is finalised as soon as
possible. (6) Appropriate authorities or agencies in receiving countries
shall ensure wat Where's adequate feedback to the appropriate authori-
tiés.or agencies in sending countries, both in rélation to inter-country
adoption generally and t6 individual children where required. Where
public attitude is known to be discriminatory or likely to be hostile on
grounds of race or colour, the appropriate authority or agency in the
sending country should not consider placement of the child. (7) It is
essential that in inter-country adoption child is given the same legal
status and rights of inheritance, as if she or he had been born to the
adoptive parents in marriage.
‘The Court referred to the Adoption of Children Bill, 1980 formulated
by the Government of India; which dealt with the problem of adop-
tion of Indian children by parents domiciled abroad. Section 23.of the
Bill mandates with penalty clause that it shall not be lawful for any
person to take or send out of India a child who is a citizen of India to
any place outside India with a view to the adoption of the child by any
person except under the authority of an order under Section 24. The
latter provision prescribes the procedure to be followed by, the District
under
Court for determining the applicant's intention to adopta child
to
thé law of or within the country in which he is domiciled, his desire
remove the child from India for the said purpose and to authorise the
EE ee ne
applicant to remove the child for the purpose after satisfying that the
Central Government has certified to the effect that: >
i) the applicantis in its opinion a fit person to adopt the child;
(ii) the welfare and interests of the child-shallbe safeguarded
under the law of the country of domicile of the applicant;
and
(iii) the applicant has made proper provision by way of deposit or
bond orotherwise in accordance with the rules made under
this Act to enable the-ch ilded to India, should
ta be repatriat
it become necessary for any reason. _
In view of the absence of specific statutory law on the subject, the
Court relied upon the Guardians and Wards Act (8 of 1890) to require
that the prospective adopters shall obtain the status of a guardian after
satisfying the legal requirements. Section 17 of the Act provides that
in appointing guardian of a minor, the Court shall be guided by what,
consistently with the law to which the minor is subject, appears in the
circumstances to be for the welfare of the minor and in considering
what will be for the welfare of the minor, the Court shall have regard
to the age, sex, and religion of the minor, the character and capacity
of the proposed guardian and his nearness of kin to the minor, the
wishes, if any, of a deceased parent and any existing or previous rela-
tions of the proposed guardian with—the minor or his property.
1. When the parents of a child want to give it away in adoption or
when the child ‘s 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.
2. Every application from a foreigner desiring to adopt a child
must be sponsored by a socialor child welfare agency
(SCWA) recognised or licensed by_the-Goverfiment of the
country-in which the-foreigner is resident,
and notby any
social or-welfare agency in India. This is essential primarily
for three reasons: (i) toreduce, if not eliminate altogether, the
possibility of profiteering and trafficking in children; (ii) to
know whether the foreigner would be suitable as a parent for
tHe child and whether he would be ablé to provide a stable
and secured family life to the child and would be able to han-
dle trans-racial, traris-cultural and trans-national problems
likely to arise from such adoption; (iii) to
have an authority
or agency in the country of the foreigner who could be made
responsible for supervising the progress of the child and
ensuring that the child is adopted at the earliest in accord-
ance with law and grows up in an atmosphere of warmth
rt yO 635
and affection with moral and material security assur
ed to
it. Every such SCWA must be licensed or recognised by the
Government of the foreign country. All private adoptions
conducted by unauthorised individuals or agencies should
be stopped.
3. The foreigner’s application must be accompanied by a home
sttidy-report, family photograph and the SCWA’s disclosure
Of social and financial status of the foreigner and his dec-
laration and appropriate security that he will maintain the
child and provide for his education and upbringing.
4. The child study report should contain identifying informa-
tion, supported where possible by documents, about original
parents, including their health and details of the mother’s
pregnancy and birth; physical, intellectual and emotional
_development; health report prepared by a registered medi-
cal practitioner preferably by a paediatrician; recent pho-
tograph; present environment-category of care (own home,
foster homé, institution, etc.), relationship, routines and hab-
its; and social worker's assessment and reasons for suggest-
ing inter-country adoption.
5. The Government of India should prepare a list of SCWA
licensed or recognised for inter-country adoption by the
Government in various foreign countries and supply copies
of such list to the various High Courts in India as also to the
SCWA operating in India in the area of inter-country adop-
tion under licence or recognition from the Government of
India, who alone can process the application for inter-coun-
try adoption.
6. If the biological parents are known, they should be properly
assisted in making a decision about relinquishing the child
for adoption, by the Institution or Centre or Home for Child
Care or social or child welfare agency to which the child is
being surrendered. Before, a decision is taken by the biologi-
cal parents to surrender the child for adoption, they should
be helped to understand all the implications of adoption
including the possibility of adoption by a foreigner and they
should be told specifically that in case the child is adopted,
‘it would not be possible for them to have any further con-
tact with the child. The biological parents should _not be sub-
jected to any duress in making a decision. They should be
allowed to reconsider their decision within three months’ or
such further time as may be allowed to them. After this, the
r can
procedure for giving the child in adoption to a foreigne
be initiated without any further reference to them.
i No notice under GWA should
be.issued to the biological par-
ents of the child, since it would create considerableamount
of embarrassment and hardship if the biological parents
were then to come forward and oppose the application of the
prospective adoptive parent for guardianship of the child; or
extort money from the adoptive parents; or involve in acts
resulting in emotional and psychological disturbance for the
child.
_ The order will also include a condition that the foreigner who
is appointed guardian shall submit to the Court and to the
concerned SCWA, progress reports of the child along with
a recent photograph quarterly during the first two years’,
and half yearly for the next three years’. The Court may also
while making the order permit the SCWA which has taken
care of the child pending its selection for adoption to receive
such amount as the Court thinks fit from the foreigner who
is appointed guardian of such child. The order appointing
guardian shall carry, attached to it, a photograph of the child
duly countersigned by an officer of the Court. This entire
procedure shall be completed by the Court expeditiously.
The SCWA which is looking after the child selected by a pro-
spective adoptive parent, may legitimately receive from
such”prospéctive adoptive parent, maintenance expenses
from the date of selection of the child by him until the date
the child leaves for goingto its new home. A foreigner may
‘make voluntary donation to any SCWA only after the child
has reached the country of its prospective adoptive parent.
10. The recognised SCWA must insist upon the approval of a
specific known child and once that approval is obtained,
it should immediately proceed to make an application for
appointment of the foreigner as guardian of the child. There
should hardly be any scope for a SCWA or individual who
brings a child from another State for the purpose of being
given in adoption to indulge in trafficking and such a pos-
sibility would be reduced to almost nil.
11.
ee Ifa child is to be given in inter-country adoption, it would be
desirable that it is givenin such-adoption as far as-possible
before it completed the age of three years’. There can be no
hard and fast rule in this connection. But children above the
age of seven years’ may be given in inter-country adoption
after their wishes are ascertained. ;
a Pe Raa 6 lp rrr 637
Pursuant to the directions given in the abovejudgment, the Government
of India proceeded to recognise and list various SCWA in India for
the purpose of inter-country adoption. Through its diplomatic mis-
sions abroad, it collected and listed the names of the SCWA in foreign
countries recognised by their respective Governments for sponsoring
applications of foreigners for taking a child in adoption. It circulated
copies of such lists to all the High Courts in the country with a request
to the High Courts to send copies of the two lists to the District Courts
within their respective jurisdiction
Some difficulties arose about implementation of the directions
and some more clarifications were required. In Laxmi Kant Pandey v.
Union of India®, the Court resolved the difficulties by issuing further
guidelines:
1. The scrutinising agency appointed by the Court for the pur-
pose of assisting it in reaching the conclusion as to whether
it would be in the interest of the child to be given in adoption
to the foreign parents must not in any manner be involved in
placement of children in adoption, lest it may disturb objec-
tive and impartial evaluation.
2. Incase of disruption in the family of the petitioner the SCWA
sponsoring the application must undertake that in such case
of disruption before adoption can be effected, it will take
care of the child and find a suitable alternative placement
for it with the approval of the concerned SCWA in India and
with intimation to the court handling the guardianship pro-
ceedings, the SCWA and the Secretary, Ministry of Social
Welfare, Government of India. Regarding the consequence
of disruption of adopter’s family after adoption, the Court
left the matter to the governance of the concerned foreign
country’s law since the child gets the nationality of the con-
cerned foreign country.
3. The scrutinising agency should not be asked to make any
inquiries before a child is offered in adoption to a foreigner
or a petition for appointment of a foreigner as guardian is
filed in court.
4. The primary responsibility for ensuring that the child is
legally free for adoption must be that of the SCWA process-
ing the application of the foreigner for guardianship of the
child. The agency should not readily assume that children
including cradle babies who are found abandoned are legally
free for adoption. Such children must be produced before
63 1985 Supp SCC 701: AIR 1986 SC 272.

and
the Juvenile Court so that further inquiries can be made
their parents or guardians can be traced.
. The representatives of foreign agencies undoubtedly help to
ensure proper and timely medical care for the child selected
for adoption and also smooth carrying out of legal formali-
ties in connection with guardianship proceedings and travel
arrangements for the child to go to the country of its pro-
spective foreign parents and also facilitate communication
between the foreign parents and the sponsoring SCWA on
the one hand and the SCWA processing the application for
guardianship on the other.
. Progress reports must be submitted to the court and to the
SCWA in India quarterly during the first two years’ and
half yearly for the next three years’ but after adoption had
taken place the courts may not insist on strict observance
of this requirement. Progress reports shall be submitted by
the SCWA sponsoring the application of the foreigner until
adoption is effected.
. Instead of requiring money deposit as a security for child’s
welfare, the execution of a bond by the foreigner in favour
of the Indian diplomatic mission would ordinarily be suffi-
cient. The bond should be by way of security for repatriation
of the child to India in case, it becomes necessary to do so as
also for ensuri1‘g adoption of the child within the period of
two years’.
. Where it is not possible for the foreigner to complete the adop-
tion process within two years’ the court may grant appropri-
ate extension of time, when sought for.
. Each SCWA must feed information to the centralised agency
in regard to the particulars of the children available with it
for adoption and a combined list of children available for
adoption with various SCWAs attached or affiliated to the
centralised agency; should be circulated to all such SCWAs,
so that if any Indian family comes to a SCWA for taking a
child in adoption, such SCWA would be able to give full and
detailed information to the Indian family as to which chil-
dren are available for adoption, and with what SCWA.
In Laxmi Kant Pandey v. Union of India‘, the Court viewed that by its
very nature it is not possible to devise a foolproof formula which will
in all cases prevent illegal sale of babies, but a procedure can and must
be formulated which will definitely reduce the possibility of such ille-
gal sales. With this end in view, it directed that all nursing homes and
“ (1987) 1 SCC 66: AIR 1987 SC 232.

hospitals which come across abandoned or destitute children or find _

such children abandoned in their pre-points or otherwise, shall imme-
diately give information in regard to the discovery or find of such chil-
dren to the Social Welfare Department of the concerned Government
where such nursing homes or hospitals are situate in the capital of the
State and in other cases to the Collector of the District and copies of
such intimation will also be sent to the Foster Care Home. The Court
issued directions for appropriate reimbursement of costs by the child
welfare agencies, for expeditious disposal of application for adoption,
and for recognition of placement agencies.
In Laxmi Kant Pandey.y. Union of India, the Court ruled that in case
of intér-country_adoption it could.not be said.that the Indian citizen-
ship should continue until the adopted child attains the age of major-
ity“and is legally competent to opt. Such a step would-run_ counter
to the need-of quick-assimilation and may often stand as a barrier to
the requirements of the early cementing of the adopted child into the
adoptive family. Gathering that many of these agencies have indeed
no child care facilities, the Court viewed that in such events the chil-
dren’s growth and mental development would indeed be difficult. The
licensing authority should ordinarily ensure that the registered agency
has proper child care facilities so that an agency, which does not have
such facilities, may over a period of years’ go out of the field.
The Court’s highly activist approach tried to fill the gap and protect
the interests of the children. In order to provide a statutory framework
for the law for rehabilitating of the orphaned,.abandoned,-neglected
or abused children, some provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000 were made. The Juvenile Justice
Board was-empowered to give children in adoption and carry out such
investigation as is required for the purpose-in accordance with vari-
ous guidelines given by the State Government. The children’s homes
or State Government run institutions for orphans were recognised as
adoption agencies for scrutiny and placement of children for adoption.
The adoptive parent may be a single parent or with biological child
or children of the same sex as that of the child going to be adopted.
These clauses were substituted by the new provisions inserted by the
Juvenile Justice Amendment Act 2006, but keeping Clause (5) unaf-
ected. The features of the present law are as follows:
It defines “adoption” to mean the process through which the adopted
child is permanently separated from his biological parents and become
the legitimate child of his adoptive parents with all the rights, privi-
| leges and responsibilities that are attached to the relationship.
4
6 (1991) 4 SCC 33: AIR 1992 SC 118.

o
a i a O
es for adop-
In keeping with the provisions of the various guidelin
or the Central
tion issued from time to time, by the State Government,
rnment,
Adoption Resource Agency and notified by the Central Gove
itself
children may be given in adoption by a court after satisfying
ired
regarding the investigations having been carried out, as are requ
\ -for giving such children in adoption.
The State Governmentshall recognise one or more of its institutions
~
or voluntary organisations in each district as specialised adoption

agencies in such manner as may be prescribed for the placement of
orphan, abandoned orsurrendered children for adoption in accordance
with the guidelines notified under sub-section(3). They shall ensure
that these children are declared free for adoption by the Committee
and all such cases shall’be referred to the adoption agency in that dis-
placement of such children in adoption in accordance with the
trict for
guidelines. Two member Committee’s declaration that the abandoned
child was legally free for adoption was required. Two months’ time
was given to natural parents to reconsider giving in adoption of their
surrendered child. And the consent of the child was required if he or
she was able to understand and express consent. The court may allow
a child to be given in adoption (a) to a person irrespective of marital
status; or (b) to parents to adopt a child of same sex irrespective of
the number of living biological sons or daughters; or (c) to childless
couples. SHY OF age TTth oes TSE Yi!
The Adoption Bill of 2006 has aimed to prohibit all persons from
indulging in sale or purchase of child; to prohibit organisations or
institutions from indulging in any activity connected with either tak-
ing or giving in adoption of children in the country in violation of law;
to authorise the appropriate government to set up centres for welfare,
rehabilitation and adoption of children; and to impose duties upon
adopters.
The whole development in this sphere reflects bold augmenting of
law’s capacity to combat against abuses of laxity in adoption law, build
adequate procedural safeguards and bring social transformation. The
Court’s leading role, the consensus built on human rights jurispru-
dence and social participation in the change process point out differ-
ent steps in fruitful conflict model of social transformation.
14.4 Legal protection against sexual exploitation

Sexual abuse of children, especially girls, isa problem of great con-
cern in view of vulnerability of their condition, deleterious impact of
the exploitation-on.their health arid life, and wide prevalence of the
evil. It is of multitude form, emerged out of multiple reasons, Itsvik
Legal protection against sexual exploitation
641
Ce brostitution, which is dealt under Immoral Traffic
(Prevention) Act, 1956 Whereas offences like*kidfapping for immoral
purpose, outrag theing
modesty, pornography, procuring, sale orlet-
ting forshire, rape and wnnatiral offences are the offences dealt under
the India Penal Code. Patriarchie social structure, economic exploita-
tiorand-aggressive male sexuality are the common reasons attributed
to these deviant acts.
14.4.1 Child prostitution and law

Under ITPA [Section 2(aa)] “child” means ebersn who has not com-
pleted the age of 16 years’.ed, i,
“Minors” alla,
are thoseSepepenwithin
re ie a. _
the range of 16
form an act of sexual intercourse or any unlawful sexual act for hire,
as was the connotation of the term in the original Act. The amendment
has brought within its frame, the act of a female and exploitation of
her person for commercial purpose by any person making use of the
unjust advantage of her situation of trapping for one’s benefit or sexual
intercourse. The word “abuse” has a very wide meaning. Everything,
which is contrary to good order established by usage, amounts to
abuse. Physical or mental maltreatment also is an abuse. An injury
to genital organ in an attempt of sexual intercourse also amounts to
sexual abuse.
The factors contributing to the practice of child prostitution include
socio-cultural factors such as family members’ involvement in prostitu-
tion, early marriage and. desertion, ignorance and illiteracy, traditional
acceptance of the profession by”the community, réligious and cultural
customs like offering into Devadasi, Basavi or Venkatasani systems,
bad company and Tack of sex education.” Poverty, unemployment and
harassment are the economic reasons. Organised flesh trade racket,
sex tourism and apathetic attitude of police and administration are
the systemic Causes for its perpetuation. The magnitude of child pros-
titution is quite high amounting to 30 per centof the total prostitutes.
According to one estimate, the number of girl prostitutes in four metro
6 Rajeswari Sunder Rajan, “The Prostitution Question(s) (Female) Agency, Sexuality

and Work” in Ratna Kapur (Ed.), Feminist Terrains in Legal Domains: Interdisciplinary
Essays on Women and Law in India (Kali for Women, New Delhi 1996) at p. 142. ro
7 KK. Mukherjee and Madhuri Mukherjee, “Girl Child Prostitution and Existing
1999) at
Law” in Mita Bhadra, Girl Child in Indian Society (Rawat Poublications, Jaipur
pp. 191-95.
cities of Bangalore, Kolkata, Delhi and Hyderabad crossed 10,000 and

the all-India figure exceeded 5 lakhs in 1990-91. According to the YC. _
Mahajan Committee “At the time of induction into the prostitution, 9
pér centre below 15 years’; 24.9 per cent between 16 to 18 years’, 277
per-cent between 19 to 21 years’; and 32.9 per cent are above 22 years’. ef
In terms of caste classification, Dalits and Tribes constitute 36 per cent,
Other Backward Classes 24 per cent and others 4o per cent.
The ITPA policy on child prostitution is one towards imposing strin-
gent punishment upon the offenders, rehabilitation of the children and
minors served in the prostitution acts, their intermediate custody and
proper maintenance of protective homes. The following details show
the differences in the quantum of penalty for offences against children
and minors as distinct from those on adult prostitutes.
Offence Punishment Punishment Punishment
for offences in for offences in for offences
: relation to adult relation to child in relation
prostitutes prostitutes to minor
prostitutes
: Living on the Imprisonment _ Imprisonment for Imprisonment for ;

earn of foratermoftwo atermmiottess = atermnotless
: prostitution. ‘years’ or fineof = than seve years’ ‘. than seven years’ -
SA - Rs 1000. -‘anid not more : and not more
| than 10 years’. _° than 10 years’.
Procuring : Rigorous Rigorous Rigorous

: or taking or : imprisonment : imprisonment for : imprisonment for °
: inducing or for : for a period not ‘ aterm not less : aterm not less ;
:“ attempting these : less than three . than seven years’ : than seven years’ ;
cacts: : years’ and not : but may extend - but may extend
* more than seven : to life. : to 14 years’.
: years’ andafine =
: notexceeding Rs _ ;
: 2000.
: Detaining in - Imprisonment for | Imprisonment Imprisonment

: premises where - aterm not less :for aterm not : for a term not
: prostitution is : than seven years’ : less than seven : less than seven
: carried on. : and not more : years’ and not : years’ and not
: than 10 years’ : more than 10 : more than 10
: and fine. : years’ and fine + : years’ and fine
- presumption of : + presumption
guilt in case of : of guilt about
child’s presence. - sexual abuse.
Siooeeee ee N
** The Committee was appointed b y the Supreme Court in Gaurav Jain v. Union of
India, (1997) 8 SCC 114: AIR 1997 SC 3021.
Legal protection against sexual exploitation 643
_ Section — Offence ' Punishment {| Punishment Punishment

: for offences in for offences in for offences
ITPA | _ Yelation to adult | relation to child | in relation
: prostitutes : prostitutes to minor
: prostitutes
7 : Prostitution in or Imprisonment : Imprisonment - Imprisonment
: inthe vicinity of - of the prostitute - of the prostitute of the prostitute
: public place. : and the person © foratermwhich | fora term which
: with whom it > may extend to ‘ may extend to
- is carried fora : three months’+ = three months’ +
. term which may - imprisonment - imprisonment
' extendtothree —_ of the person : of the person
: months’. - with whom it : with whom it
: is carried for : is carried for
- aterm which - aterm which
' shall not be less shall not be less
: than seven years’ ~ than seven years’ ;
_ but which may —_~_ but which may
‘ extend to life+ = extend to 10
: fine. _ years’ + fine.
Sompeneceneneesscssesonassencesensesnsnsah
The above policy, which was introduced by the amendment in 1986,

was triggered by the seriousness of the concern of the society towards
child and minor prostitutes in the changed circumstance and change
in value perception. However, it is surprising that regarding the
offence of seducing a woman or girl under one’s custody to prostitu-
tion no differentiation is made under Section 9 and same quantum of
punishment is continued even after 1986.
Pe een custody “of child and minor prostitutes
recovered after search Under Section 15 or rescued under Section 16, it
is provided under Section 17(2) that the Magistrate while ordering for
custody of the child should consider the age, character and antecedent
of the person, suitability of her parents, guardian or husband for tak-
ing charge of her and inquire about prospects of rehabilitation. The
Magistrate may.order for detention of the person in protective home or
in such other custody for a period not less than one year and not more
than three years.’ The persons in charge of protective homes or other
custody keepers taking the girl in custody shall undertake to provide
proper care, guardianship, education, training, and medical and psy-
cholagical treatment of the detained person. If the Magistrate passes
order for handing over the charge of the person to the parents, guard-
of
ian or husband, it shall be preceded by the scrutiny with the help
aed
welfare institution of their capacity or genuineness (Section sas
r prosti-
About giving shelters of rehabilitation to child and mino
institutions
tutes, the ITPA makes appropriate provisions. Corrective
ensuring fair
and protective homes are constituted under the Act. For
ted
conditions in protective homes statutory framework and state-enac
rules are governing the field. Providing health care service, nutritious
w-
food-education, vocational training, psychological and moral empo
erment and security are some of the principal policies traceable. When
the ‘conditions are not appropriate DutScBrac ps, remedies to set
right the position have been resorted as demonstrated in Upendra Baxt
Gast? :
em of child
‘For resolving the problee prosti tution, in Gauray Jain”, a
a ttl — 2 2
landmark case on the subject, the Supreme Court activated the provi-
sions of Juvenile Justice Act, sage The Contr referred to the interna-
_on rights of children, and gathered positive poli-
tional instruments
cies for their rehabilitation education and development. Article
19 of
the Convention on Rights of Children, 1989 enjoins the states to take
appropriate actions to protect the child from all forms of maltreatment
or exploitation including sexual abuse. As per Article 19(2), such pro-
teetive measures should, as appropriate, include effective procedures
for the establishment of social programmes to provide necessary sup-
port for the child and for those who have the care of the child, as well
for other forms of prevention and for identification, reporting, referral,
investigation, treatment and follow-up of instances of child maltreat-
ment described heretofore, and appropriate for judicial involvement.
It referred to Principle 9 of Declaration of Rights of Children, which
provides that the child shall be protected against all forms of neglect,
cruelty and exploitation ar.d shall not be the subject of traffic in any
form. Article 21 of the Constitution, in its changed perception and
read with Directive Principles of State Policy, admits right to life with
human dignity. In the light of these values the JJA was interpreted to
compel for giving a meaningful life to child prostitutes and children of
prostitutes. They come under the category of neglected juvenile7' An
institution established or certified by State Government under Section
° Upendra Baxi (II) v. State of U.P., (1986) 4 SCC 106: 1986 SCC (Cri) 381: AIR 1987 SC
191.
”° Gaurav Jain v. Union of India, (1997) 8 SCC 114: AIR 1997 SC 3021.
”” “Neglected juvenile” which is more relevant for the purpose of this case, has
been defined in Section 2(1) to mean a juvenile who:
(i) is found begging; or
(ii) is found without having any home or settled place of abode and without any
ostensible means of subsistence and is destitute; or
(iit) has a parent or guardian who is unfit or incapacitated to exercise control over
the juvenile; or
('v) lives in a brothel or with a prostitute or frequently goes to any place used for
the purpose of prostitution, or is found to associate with any prostitution or
any other person who leads an immoral, drunken or depraved life; or
(v) who is being or is likely to be abused or exploited for immoral or illegal
purposes or unconscionable gain.
aL eliotn enc rrr
9 of the JJ Act is_ajuvenile home. The objectof the Act is not to punish
the juve
butnile
to rehabilitate him or her. The State shall establish a
juvenile home under Section 9 of the JJ Act and provide by a notifica-
tion, for any area specified in the notification, one or more Juvenile
Welfare Boards for exercise of the powers and discharging the duties
conferred or imposed, under the JJ Act, in relation to neglected juve-
niles. Every child who is found to be neglected juvenile should be dealt
by the Board and should be brought within the protective umbrella
ofthe juvenile home. The attribtition as “neglected children” is not
social stizrfia:the purpose is toidentify the children as juveniles to be
dealt with under the JJ Act which is more reformative and rehabilita-
tive rather thai punitive. In an appropriate case, where the treatment
of bringing the neglected juvenile into the national mainstream takes
long time, the definition coupled with age prescription, should not be
strictly interpreted to deny the ameliorative care, consideration and
rehabilitation of the neglected juveniles.
The Court appointed a Committee under.the chairmanship of V.C.
Mahajan to report about the rehabilitation policy. The Committee sug-
gested for constituting Child Development and Care Centres_to pro-
and other children associating with prostitutes and prostitution by

making them socially productive beings; try to wean them away from
their surroundings by referring them to suitable residential institu-
tions as and when necessary; try to reach out to the mothers (through
théir children) and counsel them on different issues related to their
personal lives, their occupational lives and their children; and operate
as an information dissemination and conscientious point, particularly
for thehigher age group (12-18 years’). They were envisaged to provide
localised services through which the larger interests of these children
could be attended to. Their services would include running_creche
(day and night); pre-school education (Balwadi) in order to ensure
physical emotional and_ social development of the children and pre-
pare them mentally to attend formal schools in future. “Save for the
child” scheme, whére thé"mothers are anticipated to save Rs 100 per
child per month, was also contemplated.
The CDCC would function as a nodal agency in the field and would
coordinate with Government departments to bring as many pro-
grammes to its group of beneficiaries as possible. The CDCC will also
follow up the cases of those children whose mothers are placed in
Protective Homes. In case they are endangered in any way by separa-
tion from mother, the CDCC will adopt necessary steps to help them.
The-appropriate Government i.e. either the Central.Government or the
case may
State Government should provide all necessary funds, as the
646 Law, Child Welfare and Socia; l Transformation
be run by
be. The Committee suggested that the CQCC scheme shall
registered
experienced voluntary, non-governmental organisation,
of a regis-
under an appropriate act or a regularly constituted branch
in
tered welfare organisation or a non-profit and secular organisation
a way that its services would be open to all without any discrimination
of religion, caste, creed, language or sex. The Committee also detailed
about the type of education and facilities and activities to be provided
by the organisations. The Court inclined to give force and content to
the Committee’s recommendations, and observed:
“The rescue and rehabilitation of the child prostitutes and children
should be kept under the nodal Department, namely, Department
of Women and Child Development under the Ministry of Welfare
and Human Resource, Government of India. It would devise suitable
schemes for proper and effective implementation. The institutional care,
thus, would function as an effective rehabilitation scheme in respect
of the fallen women or the children of fallen women even if they have
crossed the age prescribed under the JJ Act. They should not be left
to themselves, but should be rehabilitated through self-employment
schemes or such measures as are indicated hereinbefore. The juvenile
homes should be used only for a short stay to relieve the child pros-
titutes and neglected juveniles from the trauma they would have suf-
fered; they need to be rehabilitated in the appropriate manner.’””
It was stated that in the light of the directions given by the Court
from time to time to the Central Government, State Governments
and Union Territory Administrators, adequate steps should be taken
to rescue the prostitutes, child prostitutes and the neglected juveniles
as indicated hereinabove; they should take measures to provide them
adequate safety, protection and rehabilitation in the juvenile homes
manned by qualified trained social workers or homes run by NGOs
with the aid and financial assistance given by Government of India
or State Government concerned. A nodal Committee with the public-
spirited NGOs, in particular women organisations and woman mem-
bers should be involved in the management. Adequate encourage-
ment may be given to them; the needed funds should be provided and
timely payments disbursed so that the scheme would be implemented
effectively and fruitfully.
Regarding the problem of child prostitution in the name of reli-
gion the Court discussed the matter in detail. The practice of Devdasis,
Jogins and _Venkatasin prevalent in Andhra Pradesh, Karanataka and
Maharashtra areas was regarded by the Court as _an_ affront to the
human dignity and sélf-respect as it traps the fair sex into this glori-
fied self-sacrifice and ultimately leads to prostitution service
in the
”? Gaurav Jain v. Union of India, (1997) 8 SCC 114: AIR 1997 SC 3021.
eC
temples and charitable institutions etc. They are void under Article
13 of the Constitution of India and punishable under the law. Penal
enactments provide for abolition thereof. The Court referred to contin-
uation of the practice in six districts of Karnataka viz. Raichur, Bijapur,
Belgaum, Dharwar, Bellary and Gulbarga where their number is iden-
tified as 21,306; in five districts of Andhra Pradesh, namely, Medak,
Karimnagar, Nizamabad, Nalgonda and Warangal, where the number
of Jogins amounted to 16,300; and in Vidarbha regions of Maharashtra,
where they are found in large number. The common features of
such women is that predominently they are from Scheduled Castes,
Scheduled Tribes-and other Backward Classes. The eldest girl in every
familyis being offered’as Devadasi, Jogin or Venkatasin. Sometimes, they
do redeem the pledge made to the Gods or Goddesses, etc. Original
families of these Devadasis, Jogins or Venkatasins were by and large poor.
They are primarily agriculturallabourers having no access to credit
facilities or literacy. The eldest girl in each family is driven to prosti-
tution. The system has been in existence for years’ as a result of lack
of awareness about the exploited Segments of the Devadasis etc. Many
families which dedicated their girls, do’so due tothe pursuit of cus-
tomary practices. The court regarded that economic rehabilitati6n and
education are the factors that prevent the practice of dedication of the
young girls to the prostitution as Devadasis, Jogins or Venkatasins as they
give resistance to such exploitation. They are being rehabilitated with
the help of vocational training centres set up in Maharashtra giving
preferential admission into educational training institutes; they are
admitted into informal adult education. In Karnataka, devadasi women
have been assisted under DWCRA schemes in various districts, in par-
ticular six districts, where an extensive devadasi rehabilitation pro-
gramme is in full force. The Karnataka State Women’s Development
Corporation and the Karnataka State Scheduled Castes and Scheduled
Tribe Development Corporation are implementing this programme in
the aforesaid six districts where the phenomenan of devadasi system
is being observed; trzining is imparted in hand-weaving, 50 per cent
subsidy is given in weaving; good work-shed is given to them free
of costs; income assistance like micro-business enterprises, rope and
basket making etc. are being provided to devadasi women for rehabili-
tating them. Training in production of soap, chalk and Khadi and in
weaving activities is being imparted in Andhra Pradesh. Karnataka
State also has taken the lead in forming self-helping group of devadasis;
a thrift and saving programme is being implemented in some areas.
were
The Court perused the facts that NGOs in these three States
and
playing important role in implementation of various programmes
they were largely concentrating on generating awareness among these
648
ee
Pee Law, Child Welfare and Social Transformation
persons and their economic rehabilitation. It referred elaborately to

the activities of Bal Sangopan Centre run by Shreemant Dagausheth
Halwai Ganpat Trust, “Nihar” run by “Vanchit Vikas” Institute at
Pune and Devadasi Nirandhar Mukti Kendra, Ganghiganj” running
a centre by name “Devadasi Chhatra Vasti Graha” which get funds
from the Central and State Government. According to the Court, this
enabled successful rehabilitation of the children who were the victims
of circumstances to regain their lost respect to the dignity of person to
sustain equality of status, economic and their social empowerment.
The Bombay High Court in Public at Large v. State of Maharashtra?
passed orders for checking sexual slavery of children and for their
release and rehabilitation. As many as 473 minor girls and child sexual
workers were rescued by the police in pursuance of the court order.
The government was asked to keep strict vigilance upon brothel keep-
ers and inter-state or international sex racketeers by resorting to inves-
tigation, regular raids and rescues. Their systematic rehabilitation and
carrying out of AIDS awareness programme were also required under
the court order. In Prerana v. State of Maharashtra’4, a PIL was filed by
the petitioner, a registered organisation, seeking rescue of children
from flesh trade in Mumbai. The Mumbai High Court issued order for
rescue and laid down following directions:
(i) no Magistrate can exercise jurisdiction over any person under
the age of 18 years’ whether that person is a juvenile in con-
flict with law or z-child in need of care and protection as
defined by Section 2 of the Juvenile Justice (Care and Protec-
tion of Children) Act, 2002, except for ascertainment of the
age;
(ii) the cases of children rescued under the Immoral Traffic Prohi-
bition Act, 1956 shall be transferred to the Juvenile Justice if
the children are in conflict with laws and to the Child Wel-
fare Committee if the child was in need of care and protec-
tion; and
(iii) the parents or guardians could be entrusted with the custody
of rescued children only if they were found to be fit.
In a nutshell it can be stated that concerted efforts of legislature,
administration, judiciary, NGO participation and social cooperation
have been witnessed to combat the problem of child prostitution. This
has pointed out valuable lessons about the law-society interaction
and the imperatives for the success of social welfare laws. The judi-
cial approach in Gaurav Jain to involve NGOs for effectuating the legal
spirit is a manifestation of sociological approach to law.
73 (1997) 4 Bom CR 171.

Cri. WP No 788 of 2002 (Bom) cited by Asha Bajpai supra, n. 19 at pp. 260-62.
Legal protection against sexual exploitation
e r rc 649
te
14.4.2 Offences against children under the Indian Penal Code
Kidnapping of minors is one of the offences against children that
lead
to other offences or violence. Section 361 IPC reads, “Whoever takes or
entices any minor under 16 years’ of age if a male, or under 18 years’
of age if a female, or any person of unsound mind, out of the keep-
ing of the lawful guardian of such minor or person of unsound mind,
without the consent of such guardian, is said to kidnap such minor or
person from lawful guardianship.” The offence is punishable with
imprisonment for a term, which may extend to seven years’ and shall
also be liable to fine (Section 363-A). On plain reading of this section
the consent of the minor who is taken or enticed is wholly immaterial:
it is only the guardians consent, which takes the case out of its pur-
view. Nor is it necessary that the taking or enticing must be shown to
have been by means of force or fraud. Persuasion by the accused per-
son which creates willingness on the part of the minor to be taken out
of the keeping of the lawful guardian would be sufficient to attract the
Section. The object of Section 361 seems as much to protect the minor
children from being seduced for improper purposes as to protect the
rights and privileges of guardians having the lawful charge or custody
of their minor wards. In Parkash v. State of Haryana”, wherein involved
conviction of an adult who had taken a girl of five and a half years’
out of the lawful custody of her parents and inflicted sexual assault,
the Supreme Court confirmed the conviction and held that the grava-
men of the offence consisted in removal of the minor from the lawful
guardianship without the latter’s consent. The word “takes” does not
necessarily connote taking by force and it is not confined only to use of
force, actual or constructive. This word merely means, “to cause to go”,
“to escort” or “to get into possession”. No doubt, it does mean physical
taking, but not necessarily by use of force or fraud.
Kidnapping any minor for the purpose of employing or using for
begging is punishable with imprisonment for a term which may
extend to ten years’ and also with fine (Section 363-A). Kidnapping
or abduction of any woman (including girl) with the purpose of com-
pelling to marry or for subjecting to illicit intercourse is punishable
with imprisonment for a term which may extend to 10 years’ and also
fine (Section 366). Procuration of minor girl is another serious offence
75 Explanation.—The words “lawful guardian” in this section include any person

lawfully entrusted with the care or custody of such minor or other person.
Exception.—This section does not extend to the act of any person who in good faith
believes himself to be the father of an illegitimate child, or who in good faith believes
act is committed for
himself to be entitled to lawful custody of such child, unless such
an immoral or unlawful purpose.”
76 (2004) 1 SCC 339: 2004 SCC (Cri) 290.
means
inflicted upon girl child. Section 366-A says, “Whoever, by any
to
whatsoever, induces any minor girl under the age of sixteen years
be,
go from any place or to do any act with intent that such girl may
or knowing that it is likely that she will be, forced or seduced to illicit
intercourse with another person shall be punishable with imprison-
ment which may extend to ten years,’ and shall also be liable to fine.”
Inducement to minor girl to move from one place to another and inten-
tion or knowledge about illicit intercourse constitute the essence of the
offence. In Jinish Lal Sah v. State of Bihar” the age factor was consid-
ered as crucial, and since the prosecution could not prove the case
of minority and absence of consent, the Supreme Court reversed the
conviction.
Buying, hiring or otherwise obtaining possession of any person
under the age of 18 years’ with intent or knowledge of likelihood that
the person shall at any age be employed or used for prostitution, illicit
intercourse, or any unlawful or immoral purpose is an offence under
Section 373 punishable with imprisonment of either description of a
term which may extend to 10 years,’ and shall also be liable to fine. The
provision conjointly punishes both the giver and receiver of the minor
for immoral purpose. It strikes against flesh trading business. There is
also a legal presumption of use for the purpose of prostitution when
any prostitute or brothel keeper buys or hires or obtains the posses-
sion of any minor female.
Regarding rape, which s heinous form of sexual offence, there is
a statutory definition to the effect that when a man has sexual inter-
course with a woman with or without her consent, when she is under
16 years’ of age, the act amounts to rape. Sexual intercourse with one’s
own wife below the age of 15 years’ is also rape. The trend of legal
development in this sphere is towards stringent application of legal
sanction especially when child is the unfortunate and defenceless
victim?® Tightening of the rule of evidence and imaginative judicial
approach have contributed towards better legal development”? In
Dhananjay Chatterjee v. State of W.B.*, a case relating to rape and mur-
der of a schoolgirl aged eight years’, the Supreme Court upheld confir-
mation of death penalty upon the convict and stated that the offence
was barbaric and an affront to human dignity.
77 (2003) 1 SCC 605: 2003 SCC (Cri) 395.

*® State of Punjab v. Gurmit Singh, (1996) 2 SCC 384: 1996 SCC (Cri) 316.
” State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550: AIR 1990
SC 658.
0 (1994) 2SCE220.
Children and education 651
ON LLL LLL LLL LLL tal
14.5 Children and education

14.5.1 Human right dimension
Children’s right to education is not only a human right by itself, but is
also instrumental for realising other human rights. Education opens
up opportunities of access to good things of life. It brings awareness
for development of one’s own personality, for excellence of character,
welfare of his or her family and for better human relationship. It ena-
bles and motivates better participation in social, political and cultural
life of the community. It helps to overcome exploitations and the tradi-
tional inequalities of caste, class and gender. Learning liberates from
ignorance, superstition and prejudice that blind the vision of truth.®
It is a preparation for living in a better way in future with an ability
to participate successfully in the modern economy and society. It is
a well-demonstrated fact that with universalisation of education, the
community’s health standards, life expectancy and inclination for har-
monious life get enhanced. In brief, education is a key to the civilisa-
tional standards, to the process of social transformation and strivings
towards perfection. Value addition in human quality and lifestyle or
vision takes place with early education. '
14.5.2 Constitutional development

The founding fathers of Indian Constitution had the vision of time
bound policy of free and compulsory education for all children until
they complete the age of 14 years’ (Article 45 as originally stood). This
was introduced as a Directive Principle of State Policy. Although
expected to be fundamental in the governance of the state, due to
apathy and lack of adequate social will, universal primary education
was destined to remain as an unfulfilled promise. Judicial activism
in reading the Directives into Fundamental Rights, especially right to
life under Article 21 resulted in recognition of right to life as a compo-
nent of right to dignified life in Mohini Jain and Unni Krishnan cases®.
Education’s connections with protection of environment, eradication
of untouchability, child labour and child prostitution and promo-
tion of secularism have been figured in judicial decisions.** Right to
1 SCC 645: AIR 1993
81 Bhartihari cited in Unni Krishnan, J.P. v. State of A.P. (1993)
SC 2178.
1992 SC 1858.
82 Mohini Jain v. State of Karnataka, (1992) 3 SCC 666: AIR
AIR 1993 SC 2178.
88 Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645:
1992 SC 382; State of Karnataka
® MC. Mehta v. Union of India, (1992) 1 SCC 358: AIR Mehta v. etl
v. Appa Balu Ingale,1995 Supp (4) SCC 469: 1994 SCC (Cri) 1762; M.C.
ua Mukti Morcha v. Union of India, (1997)
T.N., (1996) 6 SCC 756: AIR 1997 SC 699; Bandh Aruna Roy
8 SCC 114: AIR 1997 SC 3021;
10 SCC 549; Gaurav Jain v. Union of India, (1997)
652 Law, Child Welfare Sand Social Transformation
a s S
of linguistic
conserve culture, language and script (Article 29), rights
of their
and religious minorities to establish educational institutions
been
choice (Article 30) and freedom of business and of religion have
the basis for establishing private educational institutions, which are to
supplement state efforts in providing compulsory primary education.
In M.C. Mehta v. State of T.N.* the duty of parents to ensure education
of children after withdrawing them from hazardous employment was
emphasised. While the adult members were entitled to job opportuni-
ties subject to state’s ability, they were to forfeit their right if they fail to
send their children to school. The Court observed, “The employment
given or payment made would cease to be operative if the child would
not be sent by the parent or guardian for education.” While this speaks
about the duty of parents, the duty of employers engaging children in
non-hazardous works to enable the education of children by adjust-
ing the working hours and to undertake the responsibility of educa-
tion is also recognised by the Court. In Bandhua Mukti Morcha v. Union
of India®* the Court reiterated the importance of compulsory primary
education vis-a-vis eradication of child labour.
There is an international obligation under Article 28(1)(a) of the UN
Convention on the Rights of the Child, 1989 that State Parties recogn-
ise rights of the child to education, and with a view to achieving this
right progressively and on the basis of equal opportunity, they shall in
particular make primary education compulsory. According to Article
28(1)(2), the State Parties snall take measures to encourage regular
attendance at schools and reduction of the drop-out rates. Being one of
the human rights, right to education is part of the law of the land due
to judicial interpretation. Article 29 of the Convention provides that
education of the child shall be directed towards development of the
child’s personality, talents and mental and physical abilities to the full-
est potential and towards the development of respect for human rights,
for free and harmonious society and for natural environment. Article
27(1) provides that the State Parties recognise the right of every child to
a standard of living adequate for the child’s physical, mental, spiritual,
moral and social development. Article 28 obligates the State Parties
to make primary education compulsory and free to all; to encourage
development of secondary education; to make higher and vocational
éducation accessible to all; and to ensure that administration of school
discipline conforms to human dignity.”
v. Union of India, (2002) 7 SCC 368.

*° (1996) 6 SCC 756: AIR 1997 SC 699.
% (1997) 10 SCC 549, |
*” Art. 28 provides thus: ;
“1. State Parties recognise the right of the child to education, and with a view to
Children and education
i
e ee ORR653
The National Commission to review the working of the Constitution
not only recommended to incorporate right to primary education as
a fundamental right, but also quite importantly stated, “The respon-
sibility for the universalisation of elementary education should be
entrusted to panchayats and local self-government institutions.” It
emphasised the aspects of duties of citizens and community in sup-
port of this mission.
One of the most important developments in educational sphere is
insertion of Article 21-A to the Constitution by the 86th Amendment
in 2002, which states, “The State shall provide free and compulsory
education to all children of the age of 6 to 14 years’ in such manner as
the State may, by law, determine.” The Amendment replaced Article
45 by anew provision that says, “The State shall endeavour to provide
early childhood care and education for all children until they com-
plete the age of six years’.” It introduced new fundamental duty (k)
under Article 51-A, which enjoins, “It shall be the duty of every citi-
zen of India who is parent or guardian to provide opportunities for
education to his child or, as the case may be, ward between the age of
six and 14 years’.” Although the Central Government has announced
that it would introduce a Central legislation to effectively implement
the measure of compulsory education formulating the role of various
levels of Government, the role of private sector and remedial meas-
ures, no such comprehensive legislation is passed so far. The words
“free and compulsory” need to be understood in conjunctive sense in
order to promote the glorious spirit of Article 21-A. Hence, establish-
ing of requisite number of educational institutions accessible to chil-
dren and unburdening the parents from the burden of fee become the
responsibility of the State. Passing of legislation becomes essential for
effectuating the right under Article 21-A. It appears, because of lack of
education, and with a view to achieving this right progressively and on the basis of
equal opportunity, they shall, in particular:
(a) make primary education compulsory and available free to all;
(b) encourage the development of different forms of secondary education,
including general and vocational education, make them available and
accessible to every child, and take appropriate measures such as the
introduction of free education and offering financial assistance in case of
need;
(c) make higher education accessible to all on the basis of capacity by even
appropriate means;
(d) make educational and vocational information and guidance available and
accessible to all children.
reduction
(e) take measures to encourage regular attendance at schools and the
of dropout rates.
that school
2. State Parties shall take all appropriate measures to ensure
a manner consiste nt with the child’s human dignity and
discipline is administered in
in conformity with the present Convent ion.
654 Law, Child Welfare and ‘ Social Transformation
of the
legislative and administrative preparations, the commencement
noti-
86th Amendment is delayed as it is not yet (as on January 2009)
fied in the Official Gazette.
14.5.3 Attempts to bring right to education statute

The Central and State Governments have tried to bring legislative
framework for right to free and compulsory education. While the
model Bill circulated by the Central Government was not accepted by
the states because of inadequate financial support by the Centre, the
Central Bill (Right to Education Bill, 2005) was redrafted after delibera-
tion at various stages, and a new Bill (The Right of Children to Free
and Compulsory Education Bill, 2008) was introduced in Rajya Sabha
in December 2008. The proposed legislation is anchored in the belief
that the values of equality, social justice and democracy and the crea-
tion of a just and humane society can be achieved only through pro-
vision of inclusive elementary education to all. Provision of free and
compulsory education of satisfactory quality to children from disad-
vantaged and weaker sections is, therefore, not merely the responsibil-
ity of schools run or supported by the appropriate governments, but
also of schools which are not dependent on government funds.
The 2005 Bill had elaborated Preamble aspiring for fulfilling the con-
stitutional objectives of attaining socio-economic justice and humane
and equitable society; giving respect to cultural diversity and equi-
table quality of education; and ensuring decentralised management
and development of the disadvantaged sections of society. It had con-
templated creative role of cooperative federalism, responsibility upon
appropriate government, sharing of financial responsibility between
Central and State Governments, duties towards non-enrolled children,
accommodation in neighbourhood schools, duties of unaided and
specified (Navodaya, Kendriya etc.) schools to offer 25 per cent of seats
to the weaker sections etc.
The RCFCE Bill, 2008 has the following features:
1. It recognises that every child of the age of 6 to 14 years’ shall havea
right to free and compulsory education in a neighboyrhood school till
completion of elementary education. No child shall be liable to pay any
kind of fee or charges or expenses which may prevent him or her from
pursuing and completing the elementary education. Disabled children
are entitled to suitable education. Non-enrolled children are entitled to
admission to less appropriate to their age, subject to special compensa-
tory coaching. The term “compulsory education” means obligation of
the appropriate government to (i) provide free and elementary educa-
tion to every child of the age of 6 to 14 years’; and (ii) ensure compul-
Children and education 6B
a a
sory admission, attendance and completion of elementary education
by every child of the age of 6 to 14 years’
2. Appropriate government and local authorities shall establish,
within such area or limits of neighbourhood, as may be prescribed, a
school, where it is not so established, within a period of three years’
from the commencement of this Act. They shall (a) provide free and
compulsory elementary education to every child; (b) ensure availabil-
ity of a neighbourhood school as specified in Section 6; (c) ensure that
the child belonging to weaker section and the child belonging to dis-
advantaged group are not discriminated against and prevented from
pursuing and completing elementary education on any grounds; (d)
provide infrastructure including school building, teaching staff and
learning equipment; (e) provide special training facility specified in
Section 4; (f) ensure and monitor admission, attendance and comple-
tion of elementary education by every child; and (g) ensure good qual-
ity elementary education conforming to the standards and norms spec-
ified in the Schedule. With a view to prepare children above the age of
three years’ for elementary education and to provide early childhood
care and education for all children until they complete the age of six
years, the appropriate Government may make necessary arrangement
for providing free pre-school education for such children. It shall be
the duty of every parent or guardian to admit or cause to be admitted
his or her child or ward, as the case may be, to an elementary educa-
tion in the neighbourhood school.
3. Regarding sharing of financial responsibility, it provides: (1) The
Central Government and the State Government shall have concurrent
responsibility for providing funds for carrying out the provisions of
this Act. (2) The Central Government shall prepare the estimates of
capital and recurring expenditure for the implementation of the pro-
visions of the Act. (3) The Central Government shall provide to the
State Governments, as grants-in aid of revenues, such percentage of
expenditure referred to in sub-section (2) as it may determine, from
time to time, in consultation with the State Governments. (4) The
Central Government may make a request to the President to make a
reference to the Finance Commission under sub-clause (d) of Clause (3)
of Article 280 to.examine the need for additional resources to be pro-
vided to any State Government so that the said State Government may
provide its share of funds for carrying out the provisions of the Act.
4. Government schools shall provide compulsory education to all
children admitted therein. In aided schools, such facility shall be to
the extent proportionate to annual aid received, subject to a minimum
of 25 per cent of strength of the class. In private unaided schools and
specified schools (Navodaya, Kendriya, Sainik etc.) such facility shall
656 Law, Child Welfare and Social Transforma tion
A
fe gee SE
be available to children belonging to weaker or disadvantaged sec-
tions to the extent of 25 per cent of the class. The expenses incurred
by private unaided schools in this regard shall be reimbursed by the
Government.
5. Collection of capitation fee, requirement of screening procedure
for admission, holding back and expulsion, physical punishment and
mental harassment of the child, holding of private tuition and deploy-
ment of teachers for non-academic functions other than decennial cen-
sus are prohibited.
6. In all schools other than unaided ones, there shall be School
Management Committee consisting of the elected representatives of
the local authority, parents or guardians of children admitted in such
school and teachers: Provided that at least three-fourth of members
of such Committee shall be parents or guardians and that propor-
tionate representation shall be given to the parents or guardians of
children belonging to disadvantaged group and weaker section. The
SMC shall (a2) monitor the working of the school; (b) prepare and rec-
ommend school development plan; (c) monitor the utilisation of the
grants received from the appropriate Government or local authority
or any other source; and (d) perform such other functions as may be
prescribed.
7. For ensuring quality education, the Bill prohibits establishing
and running of unrecognised schools; lays down procedure for rec-
ognition; prescribes the teacher-pupil ratio; requires adequate train-
ing and qualification of teachers; insists on regularity and punctual-
ity of teachers attendance; completion of curriculum; assessment of
learning ability; and interaction with parents for the child’s devel-
opment. The school curriculum to be developed by the appropriate
Government shall reflect (a) conformity with the values enshrined in
the Constitution; (b) all round development of the child; (c) building up
child’s knowledge, potentiality and talent; d) development of physical
and mental abilities to the fullest extent; (¢) learning through activities,
discovery and exploration in a child friendly and child-centered man-
ner; (f) medium of instruction shall, as far as practicable, be in child’s
mother tongue; (g) making the child free of fear, trauma and anxiety
and helping the child to express views freely; (i) comprehensive and
continuous evaluation of child’s understanding of knowledge and his
or her ability to apply the same.
8. The National/State Commission for Protection of Child Rights
constituted under the Commissions for Protection of Child Rights
Act, 2005; shall perform the following additional functions, namely: (a)
examine and review the safeguards for rights provided by or under
this Act and recommend measures for their effective implementation;
Children and education 657
OO a SST RT HA Nicci unl sien cc rr ea
(b) inquire into complaints relating to child’s right to free and compul-
sory education. Grievance redressal scheme is also formulated.
In contrast, the Karnataka Compulsory Primary Education Bill,
2005, which supplements the existing Karnataka Education Act, 1983
that elaborately provides for quality education, has a specific focus
on total enrolment of children and elimination of drop-outs through
the active involvement of NGOs, teachers, parents, local authorities
and Government. It shall be the duty of parent of every child to make
admission of the child to an approved school whether public or private
school and cause the child to regularly attend the school. The duty is
enforceable through sanctions such as withdrawal of state-extended
facilities in case of unjustified failure to perform the duty. This can
be favourably compared with the legislative policy suggested Dalveer
Bhandari, J. in Ashoka Kumar Thakur®. Compulsion to launch pub-
lic awareness programme, creative role of School Development and
Monitoring Committee, NGO's role in assisting census of eligible chil-
dren, Attendance Authority’s supervision to prevent drop-outs, mean-
ingful rapport between school and the Panchayat’s Standing commit-
tee on Education and obligation of teachers and panchayat members”
towards the policy of compulsory education exhibit the policy of con-
certed efforts to be activated by all the concerned. In view of the fact
that right to elementary education is conipulsory, a stringent duty-
based approach is envisaged here.
The Parliament adopted “The Right of Children to Free and
Compulsory Education Bill, 2009” on 4 August 2009, which primarily
reflects the features of RCFCE Bill 2008. The 2009 Bill has envisaged to
provide elementary education, as far as possible, in the mother tongue
of the child. While 25 per cent of seats in every private school would
be allocated for children from disadvantaged groups including differ-
ently abled children at entry level, as far as minority institutions were
concerned up to 50 per cent of those seats could be offered to students
from their communities. The Centre’s move is described by the Union
Human Resources Minister, Kapil Sibal as “a national enterprise to
shape India’s future”, and not to interfere with the State Government's
to provide elementary education. The defects pointed out by some
insufficient.
88 “The current patchwork of laws on compulsory education is
to ensure that Art. 21-A is impleme nted. The
Monetary fines do not go far enough
ion that: (a) provide s low-inc ome parents or
Central Government should enact legislat
that they may afford to send their children
guardians with financial incentives such despite
who receive financia l incentiv es and
to schools; (b) criminally penalises those e
work; (c) penalise s employe rs who preclud
such payment send their children to the
include imprisonment;
children from attending schools; (d) the penalty should
example . The State is obligated under Art. 21-A
aforementioned Bill would serve as an
observed D. Bhandari, J. Ashoka
to implement free and compulsory education in toto”,
India, (2008) 6 SCC 1.
Kumar Thakur v. Union of
Law, Child Welfare and Socia l Transformation
658 ‘
pre-primary educa-
about the Bill include: non-inclusion of right to
rhood of school;
tion; ignoring the principle of access to real neighbou
allowing of
continued differences between public and private schools;
mechanism for
the trend of privatization and commercialization; and
time-bound implementation of the law.
14.5.4 Administrative measures
The failure to bring universal primary education, in spite of spe-

cific constitutional contemplation and early efforts for three dec-
ades after Independence, provoked rethinking at the administrative
level. National Policy on Education, 1986 and Program of Action gave
unqualified priority to universalisation of elementary education. It
envisaged family-wise and child-wise plan of action. In case of non-
formal educational centers to which the child is sent, at least eight
years’ of learning was recommended. It suggested for participation by
all levels of government and local agencies to participate in planning,
coordination, monitoring and evaluation.
The National Policy on Education, 1992 favoured overhauling of the
planning and management of education on the following lines:
(a) evolving a long-term planning and management of education
and its integration with country’s development and man-
power needs;
(b) decentralisation 2ad spirit of autonomy;
(c) giving pre-eminence to people’s involvement, including asso-
ciation of non-governmental agencies and voluntary effort;
(d) inducting more women in the planning and management of
education; and
(e) establishing the principle of accountability in relation to given
objectives and norms.
The Central and State Advisory Boards of Education (CABE and SABE)
and District Boards were contemplated to act in coordination.
The Programme of Action 1992 elaborated the NPE policy and in the
background of newly emerging institution of Panchayati Raj, suggested
for decentralised planning and management of primary education at
district and village level. It contemplated to have Village Education
Committee in each panchayat with a responsibility to operationalise
micro-ievel planning and school mapping in the village through sys-
tematic house-to-house survey and periodic discussion with parents
and ensure that every child in every family participates in the primary
education. It suggested for people’s involvementat the grass root level
and participation of voluntary agencies and social activist groups on
larger scale covering all types of elementary educational programme
including nen-formal education, early childhood care and education,
ss i is ben lr
education of the disabled etc. It suggested that norms of performance
by the different categories of educational personnel and institutions
must be prepared by the state and non-observance of norms must
result in disincentives while good performance must receive recogni-
tion and publicity.
The CABE Committee on Decentralised Management of Education
chaired by Sri Veerappa Moily (1993) noted the problem of irregular
attendance of children and their subsequent drop-out in large num-
bers and expressed concern about slow progress in education of dis-
advantaged sections like girl child, SCs/STs, BCs and minorities. It rec-
ommended constituting Panchayat Standing Committee on Education
(PEC), and if the panchayat has more than one village, for each of such
villages separate Village Education Committee as sub-committee of
panchayat is to be constituted. The PEC shall consist of 15 members
headed by the Chairman of the panchayat. One-third members shall
be women. One member each shall be representing SCs, STs, BCs, and
minorities, a parent representative and an anganwadi worker. The
role of the Committee includes generation and sustenance of aware-
ness among village community ensuring participation of all segments
of population and ensuring that every child in every family partic-
ipates in primary education. It will be required to visit institutions,
promote enrolment drive and persuade parents of non-attending chil-
dren to send their wards to schools and enthuse adults for literacy.
Recommendation of annual budget, reporting about irregularities in
attendance of children and preparation of school calendar are within
its powers. The VEC shall also have similar composition except that
it will be presided by the member representing the concerned vil-
lage. Its powers and role resemble that of PEC. The Panchayat Samiti
Standing Committee on Education (PSEC) at intermediate level and
Zila Parishad Standing Committee on Education (ZPSEC) at the dis-
trict level are to wield their supervisory role and funding functions. It
appears, the CABE Committee recommendations were put into cold
storage and gram panchayat education committee with full-fledged
powers and responsibilities did not emerge.
Another development that took place at the district level through
the participation of Central and State Governments is noticeable. The
District Primary Education Programme, launched in November 1994 is
conceived as a beachhead for overhauling the primary education sys-
tem in India. The programme aims at operationalising the strategies for
achieving UEE through district specific planning and disaggregated
ce of
target setting. It draws upon the accumulated national experien
away
several state level initiatives that were started earlier. It moves
programmes and
from the schematic piecemeal approach of the earlier
660 Law, Child Welfare and Social
“ Transformation
takes a holistic view of primary education with emphasis on decen-

tralised management, community mobilisation and district specific
planning based on contextually and research based inputs.
The basic objectives of DPEP are: to provide all children with access
to primary education either in the formal system or through the non-
formal education (NFE) programme; to reduce differences in enrol-
ment, drop-out rates and learning achievement among gender and
social groups to less than 5 per cent; to reduce overall primary drop-
out rates for all students to less than 1o per cent; and to raise average
achievement levels. The Government of India finances 85 per cent of
the project cost as a grant to the DPEP State Implementation Societies
and the concerned state government provides the rest. The central
government's share is resourced by external funding.
The goal of Universalisation of Elementary Education (Sarva
Shikshana Abhiyan) got a new fillip in the light of international com-
mitment and avowed policy that by 2010 all children between the age
group of six-14 should be in schools getting useful and quality educa-
tion. The Government of Karnataka made a unique effort to involve
primary stakeholders, the parents of school going children, to play a
prominent role in the overall governance of school education in this
direction.
Under the Sarva Shikshana Abhiyan, by March 2007, 2,03,577 toilets
had been constructed or were under construction, covering 87 per cent
of the goal; more than si:: crore free textbooks had been supplied: 96
per cent of the goal; 1,93,220 new schools had been completed or were
under construction i.e. 80 per cent of the desired mark. The enrolment
for all districts in 2004-05 for Classes I-V was 11, 82, 96, 540. In 2005-06,
the number increased to 12,46,15,546. A similar increase was seen in
Classes VI-VII/VIII: from 3,77,17,490 to 4,36,67,786. The total number of
teachers increased from 36,67,637 in 2003-04 to 46,90,176 in 2005-06.
14.5.5 Improving the quality of education

According Pratham, one NGO, which surveyed quality of primary
education in 16,000 villages, there are an estimated 140 million chil-
dren in the age group 6 to 14 years’ in primary schools. Of these 30
million cannot read, 40 million can recognise a few alphabets, 4o mil-
lion can read some words, and 30 million can read paragraphs. Over
55 million of these children will not complete four years’ of school,
eventually adding to the illiterate population of India. The Supreme
Court in Ashoka Kumar Thakur has perused the position and suggested
for remedial measures.”
*° Ashoka Kumar Thakur v. Union of

India, (2008) 6 SCC 1.
Conclusions 661
Se
a
14.6 Conclusions
Children’s inevitable dependence upon others and their vulnerability
have been the immediate causes of their exploitation whereas the over-
all social atmosphere of poverty, illiteracy and helplessness push them
to the wall. For protecting them from private actors, law strives hard
in umpteen ways. The fact that private actors are parents and guard-
ians and the agencies that exploit include employers and flesh trade
racketeers makes the legal task complex. Law’s policy is traditionally
influenced by the instruments of sticks rather than humanised by the
carrots of social benefits. But latest trend is to humanise through benef-
icent actions. Society, both domestic and global, has grown beyond
freeing the child from exploitations of numerous types. Childcare and
child development are the modern mantras for offering to children
the joyous ambience of right to be child. Health, education and secu-
rity are inevitable and interlinked inputs for their development. For
making them available, the private actors need to be cautioned, cajoled
and coerced. Since mere legal framework cannot do that, people’s par-
ticipation and creative leadership of the NGOs and civil society make
tremendous contribution to the success of the legal policy. The whole
legal regime ranging from international human rights instruments to
constitutive laws and down to local administrative circulars, whether
relating to eradication of child labour or streamlining the adoption
and fosterage arrangements or rescuing from sexual exploitation or
effectuating the policy of compulsory primary education, has increas-
ingly relied on this bottom up approach. From the perspectives of law-
society interaction, the signs of healthy development are visible.
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Part IV
MODERNISATION AND SOCIAL
TRANSFORMATION
ConceEPT, FAmILy LAw, ECONOMIC REFORMS,
JusTicE DELIVERY SYSTEM AND PARTICIPATIVE
DEMOCRACY
CHAPTER 15
MN Memeba Peta aed a
MODERNISATION AND LAW
15.1 The concept of modernisation

Modernisation is a specific type of social change wherein a traditional
society inclines to develop new pattern of conduct in response to new
challenges of the new age. It is a process of becoming or being made
modern, a change that uses the elements of science and technology for
achieving a better and more satisfactory life.’ It implies cultural liberal-
ism and pragmatism. “Modernity” according to Rudolph and Rudolph,
assumes that local ties and parochial perspectives give way to univer-
sal commitments and cosmopolitan attitudes; that the truth of utility,
calculation and science take precedence over those of the emotions, the
sacred and non-rational; that the individual rather than the group be
the primary unit of society and politics; that the association in which
men live and work be based on choice, not birth; that mastery rather
than fatalism orient their attitude towards the material and human
environment; that identity be chosen and achieved, not ascribed and
affirmed; that work be separated from family, residence and commu-
nity in bureaucratic organisation.? Thus a shift from hierarchic, holistic,
1 Syed Husain Alatas, Modernisation and Social Change (Angus and Robertson,
Sydney 1972) cited in Ram Ahuja, Indian Social System (Rawat Publications, New Delhi
2002) at p. 415. Application of rationality, search for truth, and inventive attitude is its
hallmark.
2 Lloyd Rudolph and Susanne Rudolph, The Modernity of Tradition: Political
Development in India (Chicago University Press, Chicago 1967); see also, Satish Deshpande,
y
“Modernisation” in Veena Das (Ed.), Sociology and Social Anthropology (Oxford Universit
due
Press, New Delhi 2003) at p. 63. James O’ Conell identifies following changes
Modernisation and
ee Law
664
e
DOR e
nal
religion-motivated society to individualistic, materialistic and ratio
that
one is implicit in the process of modernisation? T.N. Madan views
in a deeper sense, modernity means enlargement of human freedom
and enhancement of the range of choices open to a people in respect
of things that matter, including their present and future lifestyle.* But
modernity is not an ultimate point of development. Dissatisfied with
modernity’s contribution and its side effects, going back to some of the
essential features of the traditional, communitarian, natural and plu-
ralistic social pattern has been experienced in post-modernist think-
ing and social action. The pendulum like movement between the two
extremes is one of the forces that compel balancing between change
and continuity and decide the destiny of social progress. As Madan
admits, modernity does not mean total break from the past. Atal Bihari
Vajapayee observed, “Since time immemorial Indian society has rested
on the three pillars of morals, ethics and values. Modernism does not
mean repudiation of what lies at the core of Indian identity. Indeed, a
modern India must also be a moral India. It is only when modernity
and morality combine that we can have a forward looking, forward
moving India, a country whose future would be known for its ‘mani-
fold greatness’.
Exposure of strong traditional India to colonial rule, western educa-
tion and western civilisation had opened up three alternative or com-
posite avenues before her: (i) asserting tradition to prevail over moder-
nity, absorbing or obstructing it successfully; (i) allowing modernity
to prevail over tradition, marginalising the glory of the past; and (i1)
allowing modernity and tradition to coexist.° For Indian multicultural
society, which deeply revered the past and internalised patriarchic and
religious outlook in day to day life, but was awakening with rational-
ism and aspiring for modern values of democracy, the choice of sin-
gle solution for all issues was over-simplification of a difficulty. As
to transition from tradition to modernity: increase in economic growth; occupations

become more skilled; traditional agricultural tools replaced by tractors and fertilisers;
urbanisation increases; equality replaces hierarchy; hereditary leadership gives way
for elected leadership. James O. Conell, A Concept of Modernisation (1965) 64 South
Atlantic Quarterly cited in Ram Ahuja at p. 417.
> Yogendra Singh, Modernisation of Indian Tradition (Rawat Publications, New
Delhi 1999) at p. 192. K. Santhanam conceptualises modernisation in terms of social
revolution as getting India out of medievalism based upon birth, religion, custom
and community and reconstruct her social structure on modern foundations of law,
individual merit, and secular education. Hindustan Times, 8 -9-1946 cited by Granville
Austin, Working a Democratic Constitution (Oxford University Press, New Delhi 1999
rept. 2004) at p. 69.
* 'T.N. Madan (Ed.), Religion in India (Oxford University Press, Delhi 1999).
° India Today, 20-8-2002.
° Satish Deshpande, supra, n. 2 at p. 68.
The concept of modernisation 665
(a an) tea aan er rrr
discussed in Chapter 2 the choice of India during the colonial
period
was influenced by permutation and combination of different
social
processes, and the choice was not uniform to all issues. Revival,
reform,
resilience and restructuring were the methods of engrafting change
to
social continuity? This was extension of the tendency within the social
structure to upgrade the social layer as in the form of sanskritisation
conceptualised by M.N. Srinivas. D.P. Mukherji viewed modernisa-
tion as “at once an expansion, an elevation, a deepening and a revitali-
sation of traditional values and cultural patterns that is a kind of self
conscious synthesisation of modernity by tradition.” The indigenous
concepts developed by Gandhiji from traditional principles or Hindu
philosophies are the basis for Mukherji’s perception of modernisation.
Yogendra Singh takes a synthetic view of modernisation of Indian
tradition by holding that modernisation involved process of reinforce-
ment of a variety of traditional institutions and that between the two
there was no contrariety.’® Since western civilisation itself was under-
going a process of change due to industrial revolution and was not
providing adequate and stable theoretic input, anchoring on tradition-
sans-perversion was appropriate choice on the part of India. Because
of inter-structured autonomy within the society wherein domain of
culture is independent of polity, and each caste, group or community
having certain amount of autonomy within them, modernity also
developed mainly as a sub-structure and sub-culture without perva-
sive expansion in all sectors of life. Since culture changes only slowly
and adoptively without losing the identities of groups or destroying
personality structure, continuity is an invariable component of change
management. The factors of culture and identity limit the ideology of
social change whether sponsored or self generated and persuade con-
tinuity. Hence, Singh considers modernisation as a form of rationalisa-
tion through which introduction of whole range of social and cultural
changes in societies is legitimated.
According to T.N. Madan, “Modernity is generally regarded as both
practical necessity and a moral imperative, a fact and a value... Thus,
by modernity I do not mean a complete break with tradition. Being
modern means larger and deeper things: for example, the enlargement
of human freedom and the enhancement of the range of choices open
Change in India
7 Ibid, at pp. 66-67; Ram Ahuja, at pp. 416-17; Yogendra Singh, Social
(Har Anand Publications, New Delhi 1993) at pp. 12-13. .
Berkely
® MN, Srinivas, Social Change in Modern India (California University Press,
1966) at pp. 2-5. a axe
Society in India (Oxfor d Univers ity
9 TN. Madan, Pathways: Approaches to the Study of
press, Delhi 1995) at p.18.
Yogendra Singh, supra, n. 3 at pp. 202-05.
666 Modernisation and Law
eee
Oe
to a people in respect of things that matter, including their present and
future lifestyles. This means being in charge of oneself. a .
Gunnar Myrdal finds fault with “soft state” policy of postcolonial
India for extending the phase of modernisation. While the problem
of development required induced changes in the institutional and
social structure owing to lack of spontaneous changes, traditional
institutions and values were insurmountable obstacles to modernisa-
tion, which could not be cleared by “soft state” institution of moder-
nity. With a strong state it is easier to bring big changes rapidly than
to bring small changes gradually. His idea of upward movement of
whole social system through the lever of strong state is representing
“top down” model, which was not envisaged by the Indian approach
of modernisation.”
Indian society’s approach of openness to external influence but
determination to steadfastly fasten itself to the roots is picturesquely
depicted by Gandhiji when he said that he was for keeping all the
doors and windows of his house open to allow gushing in of the wind
of influence but would stand firm lest the winds carry away his feet by
force. It was not the western concept of capitalism, but it was the ideol-
ogy and imperative of welfarism that could shape the Sarvodaya con-
cept as an instrument of modernisation by Gandhiji and his followers.
Jawaharlal Nehru was inspired by Soviet plans to build up social free-
dom and socialist structure without which “neither the country nor
the individual could develop much.” His effort of synthesising East
and the West in formulating the contours modern mind is expressed
in the following observation:
“The modern mind, that is to say the better type of the modern mind, is
practical and pragmatic, ethical and social, altruistic and humanitarian.
It is governed by a practical idealism for social betterment. The ideals,
which move it, represent the goals of the age, the Zeitgeist, the Yugad-
harma. It has discovered to a large extent the philosophic approach of
the ancients, their search for ultimate reality, as well as the devotinalism
and mysteries of the medieval period. Humanity is its god and social
science its religion.”"4
Planned development of the society with above ideology was one of
the most important instruments of modernisation. Creation of open
society and of new institutions, and acceptance of change in the ideas,
"Supra, n. 4.
Gunnar Myrdal, Asian Drama, Vol. I (Penguin Press, London 1968) at pp. 34-35.
13
See supra, Ch. 1.
14
Jawaharlal Nehru, Discovery of India (JNM Fund and Oxford University Press,
New Delhi 1946, 1989) at p. 557.
Constitutional perspective of modernisation
667
institutions and social structures constitute components of
moderni-
sation.”
As a means of social transformation, law has been exposed to the
needs, methods and problems of modernisation. Equally has oper-
ated its sway in accommodating social resilience into traditional
methods. Social practice has also experienced resilience to tradition-
alism. Organic farming, communitarian life through Panchayati Raj,
increased focus on traditional knowledge on medicine and bio-diver-
sity, swadeshi, ideals of harmonious family, conservation of nature,
respect for diverse cultures and ancient legal concepts, and recognition
of plurality are some of the features of post-modernist development.
The recent post-modernist thinking and social policy have influenced
legal policy also. Internalising both the modernisation process and the
post-modernist traditionalism in keeping with the basic goals of the
supreme law is one of prominent approaches of law. It is possible to
discern definite policies meticulously built in the Constitution about
the modality of modernisation. The domain of family law has experi-
enced operation of two powerful forces: adherence to tradition sans
perversion and modernisation through inclusion of human rights and
welfare principles in intra familial relations.’* International dimension
of modernisation operates in two contexts: first, expansive influence
of international human rights and modern international principles;
and second, far-reaching impact of international economic policies
and institutions that spearhead the much publicised Liberalisation,
Privatisation and Globalisation. Further, modernisation arising from
technological development is responded or facilitated by law. The
present chapter deals with these issues.
15.2 Constitutional perspective of modernisation

Wide acknowledgment of Indian Constitution in academic writings,
popular understanding and judgments as an instrument of social
transformation presupposes that many of the schemes and provisions
envisaged therein try to break away from the past and build the edi-
fice anew suitable to modernity.’” Subjection of customs and usages to
the “purging effect” of Fundamental Rights; categorical abolition of
untouchability; rejection of religion, race, caste and sex as the grounds
of discrimination; prohibition of begar and traffic in human beings
15 RN. Bella, Values and Social Change in Modern Japan (1961) at p. 15 cited by Ram
Ahuja, op. cit., at p. 418. nore
Menski, Hindu Law: Beyond
'6 For a scholarly exposition of this theme see, Werner F.
Tradition and Modernity (Oxford University Press, New Delhi 2003); see also infra,
Ch. 16.
7 See supra, Ch. 4.
iid ae aa enen Ney Sines Lim er
(including devadasi); and subjection of religious practices to social
reforms constitute important modalities of bringing modernity."* The
fact that these changes towards modernity have been contemplated
in the part relating to Fundamental Rights speaks about their sig-
nificance in ushering in of social change even in contradistinction to
some general principles. The policy of protective discrimination for
women, children and weaker sections reflects radical method of bring-
ing modernity.” But the strategy of continuing the intimate traits of
the past is clear in provisions that enable conservation of culture script
or language, that aim at protection of cow progeny and monuments,
that recognise minority educational right and that guarantee freedom
of religion and that insist to value and preserve composite culture of
India. é
The Directive Principles of State Policy have the principal aim of
restructuring the social order in order that justice, social, economic
and political shall inform all the institutions of national life. Explicit
reference to modernity can be found in Article 48 which states, “The
state shall endeavour to organise agricuiture and animal husbandry
on modern and scientific lines and shall, in particular, take steps for
preserving and improving the breeds and prohibiting the slaughter
of cows and calves and other milch and draught cattle.” Unique use
of the words “on modern and scientific lines” in the context of major
occupation of Indian people suggests about introduction of new and
better methods of cultiviition. It does not suggest that all that is non-
modern is unscientific. In fact, traditional knowledge about agricul-
ture, organic farming and animal husbandry followed for millennia
constitute treasure of science which could hardly be rejected outright
as opposed to modernity.”A reasonable interpretation to escape from
this anomaly would require that the term “and” shall be understood
disjunctively. That would facilitate continuation of traditional knowl-
edge along with new methods. Further, it is also a fact that all that
is modern is not scientific. This is evident from the evil of chemicals
and pesticides in the course of green revolution that results in seri-
ous environmental degradation. Modern methods of irrigation have
no doubt greatly expanded the area under cultivation, but have been
found to be problematic because of excessive use or because of other
18 See, Arts. 13, 17, 15, 16, 23, 25, etc.

" For explicit recognition that Part III also reflects social justice goal see M. Nagaraj
v. Union of India, (2006) 8 SCC 212.
2” Arts. 15(3), (4) (5) and 16(4).
1 Arts. 29 and 30, 48, 49, 51-A(f).
2 N.M. Kansara, Agriculture and Animal Husbandry in the Vedas (Nag Publishers,
Delhi 1995) at pp. 69-88.
Constitutional perspective of modernisation
669
side effects. As in other fields, here also, proper combination of conti-
nuity and change is required.
Regarding prohibition of cow slaughter, recent constitutional devel-
opment has demonstrated how scientific line of thinking in traditional
knowledge shall be preferred to the interests of business or immediate
economic gain. In Mohd. Hanif Quareshi?> the Supreme Court in 1961
had ruled that while prohibition of slaughter of cows was valid, the
prohibition of useless draught animals was invalid as it infringed free-
dom of business. In Mirzapur Moti Kureshi*4 (2005) the Supreme Court
upheld total prohibition of slaughter of cows, calves and draught ani-
mals on account of scientific principles of conserving natural resources
as a part of environmental protection. The trend of development dem-
onstrates again the propriety of combining tradition with modernity.
The Court in Kureshi (2005) looked to changes in factual circumstances
relating to cattle position and changes in constitutional law due to con-
stitutional amendment. Scientific data showed usefulness of cow prog-
eny, even after the age of 16 years’, for lighter works, for manure and
for formulation of pesticides and medicine. The National Commission
for Cattle, 2001 pointed out the economic viability of rearing cattle
after they stop yielding milk or drawing heavy loads. The Working
Group of Animal Husbandry and Dairy Farming, the 1oth Five Year
Plan (2002-07) highlighted the importance of draught breeds of cat-
tle in view of the fact that in India 83.4 million holdings (78 per cent)
are less than 2 ha where tractors and tillers are uneconomic, and said,
“The role of cattle as the main source of motive power for agriculture
and certain allied operations would continue to remain as important
as meeting the requirement of milk in the country.” Its suggestion for
development of draught breed and the willingness of funding agen-
cies to assist the project were followed up by governmental measures.
Law was enacted for protection, preservation, development and well
being of cattle and to secure the cattle wealth of India. In the back-
ground of near extinction of some of the indigenous cattle varieties,
saving the cattle progeny has the dimension of bio-diversity. The mid-
term appraisal of the 10th Five Year Plan by the Planning Commission
has greatly emphasised the system of organic farming, which uses
natural organic inputs and biological plant protection measures, and
excludes chemical fertilisers and insecticides. The other reason for
change consisted in introduction of Articles 48-A and 51-A which
have clear vision of environmental protection and compassion to all
living beings. By resorting to purposive construction and dominant
objective of environmental protection, the Court upheld the state law
23 Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731: 1959 SCR 629.
4 State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534.
ee cee eRe EEN NE NESS
and overruled the earlier position on the subject. The judgment gives
post-modernist critique of green revolution and recognises the holistic
approach of organic farming.
Education as a means of modernisation is greatly realised by the
Constitution Makers when they enacted Article 45 to obligate upon the
state to ensure within 10 years’ free and compulsory education to all
children below the age of 14 years’. By 86th Constitution Amendment,
this is made Fundamental Right under Article 21-A. In cases on right
to education, the Supreme Court has referred to the importance on
education in freeing the society from blind beliefs and prejudices and
equipping the people with ability to enter competitive life with con-
fidence. As noted by the National Commission to review the working
of the Constitution, the extent of achieving access to basic necessities
of life, especially by knowing better health practice or having better
means of-tiving, is more in states having greater literacy rate (like
Kerala) than those without it (like Madhya Pradesh). Modernisation
in some states has assumed the shape of expanding the facilities and
scope for professional and technical education so that the demand for
skilled human resource could be properly met along with augment-
ing the economic capability of the younger generation. The big change
in the economic scene of such individuals and families owing to this
development has the snowball effect. New educational institutions
and technological or management schools have become new economic
power houses altering the face of urban centers. In Islamic Academy case
S.B. Sinha, J. observed:
“Excellence in professional education must be viewed from the eco-
nomic interest in the country. In order to compete with the other devel-
oped countries, GDP of India should be around 15 per cent instead of
present rate of 5 per cent. This can be achieved only by producing stu-
dents of excellence, which can be achieved only by encouraging institu-
tions of excellence imparting professional education to those who are
meritorious. Giving encouragement to the students, having better merit
will, thus, have a direct nexus with the economic and consequently the
national interests of the country. The right of development from the
human right point of view must be construed liberally. When there are
two competing human rights namely human rights for the religious
minorities and the human rights for development, having regard to the
economic and national interest of the country in the matter of admis-
sion of students, the latter should be allowed to prevail subject to protec-
tion of the basic minority rights. The State may have to strike a delicate
balance between these two competing rights.”?5
* Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697: AIR 2003 SC
3724 at p. 3785.
Consti
Setutional perspe ctive modernisation
IRR ofLRN SR SNS pe ld 671
Along with mushrooming growth of professional and technical edu-
cational institutions, the need to control them from the perspective of
right to equality in access to education, maintenance of quality, pro-
motion of equity and avoidance of abuse has also been addressed and
realised in judicial verdicts and statutory measures.”®
Modernisation through Uniform Civil Code is contemplated in
Article 44. In order to break down the hierarchy within the family aris-
ing out of patriarchic dominance, it was considered that family law
should be restructured. Although personal law’s connection with reli-
gion is remote, due to glorification of its cultural background, reform
of Muslim personal law could not take place to the extent required.”
Reform of Hindu Law through Hindu Code made an attempt at partial
modernisation. But the progress towards accomplishment of reforms
was piece-meal and slow. Christian personal law, which also needs
legal reforms, still remains unsatisfactory. The concept of Uniform
Civil Code as the method of modernisation is practically replaced by
piecemeal reform of specific community’s personal law depending
upon the extent of their preparedness to accept the change, the extent
of infirmities in the personal law and political choice. But the justifi-
cation given to Uniform Civil Code that it is an instrument of social
unity, harmony and national integration is not supported by reality
since the link between the two is not well established.
This reflects again the role of continuity, identity and change as com-
ponents of modernisation. Gender justice within each personal law has
not been superimposed by judiciary as a requirement of right to equal-
ity. But recognition of right to maintenance as a component of right to
dignified life has provided some solace. Judiciary’s repeated exhorta-
tion on Uniform Civil Code and legislature’s unenthusiastic approach
have been the features of modernisation discourse.** The question of
competence to author change—whether it is state or the community's
body like Muslim Personal Law Board that should initiate and intro-
duce change—has also complicated the problem of modernisation.
Modernisation of employer-employee relations by providing vari-
ous types of protection to workers—living wages, just and humane
conditions of work, maternity relief, public assistance in case of unem-
ployment, old age, sickness, disablement and other cases of unde-
served want is also contemplated (Articles 41-43). This has provided
sound guidance for the growth of labour law to contribute towards
social transformation. State’s duty to promote with special care the
Krishnan, J.P.
26 Haryana Financial Corpn. v. Jagdamba Oil Mills, (2002) 3 SCC 496; Unni
v. State of A.P., (1993) 1 SCC 645: AIR 1993 SC 2178.
7 For elaborate discussion see infra, Ch. 16.
672 Moderni
in Lu and
sation SE Law
5 CA ee rR Mss tpi SIE
educational and economic interests of weaker sections including SC/
STs and to protect them from social injustices and exploitations (Article
46) has also the objective of modernisation.
Organisation of village panchayat and endowing them with pow-
ers to enable them to function as units of self-government (Article 46)
is reviving the old social institution at grass root level. Continuity of
traditional institution and value along with parliamentary democ-
racy at the State and Union level is a veritable compound of continu-
ity and change. The very use of Panchayati Raj Institution for social
transformation is a healthy strategy borne out of balanced approach
to modernity.”? Respect to tradition is also rendered by obligating the
state to protect monuments and places and objects of artistic, historic
or national importance (Article 49). Thus, the Directive Principles have
used the strategy of combining continuity and change in the process
of modernisation.
Healthy synthesis between continuity and change can be found as
the major pattern of modernisation contemplated in the constitutional
provisions on fundamental duties? They appeal to citizens’ attention
for preserving the loveable past and for projecting a laudable future.
They gain considerable importance as they address to the issues of
modalities and aims of change through conscious and committed par-
ticipation by the citizenry2" Two sets of duties can be noted in this
regard.
The first set is about change. Article 51-A(i) prescribes the duty to
develop the scientific temper, humanism and the spirit of inquiry and
reform. Developing scientific temper entails upholding rational out-
look, shedding superstition, acquiring new knowledge and abandoning
obsolete learning. Humanism is a sense of regarding others as human
beings with empathising warmth of heart. Spirit of inquiry urges for
facts whereas reform enthuses with the zeal for setting things right.
Unusual religious and ritualistic practices devoid of humanism shall
be put an end to with full determination. Supreme Court in Susheel
Murmu and other cases sternly dealt with the acts of human sacrifice
by imposing death penalty against the offender, cautioned against
occurrence of such inhuman acts in future, and upheld the human
values? The Court observed:
See infra, Ch. 19.

*° See supra, Ch. 4 for details.
* E.S. Venkataramiah, Citizenship—Rights and Duties (BV. Naga Publishers,
Bangalore 1988) at p. 82.
* Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338: AIR 2004 SC 394; See also
Paras Ram v. State of Punjab, (1981) 2 SCC 508: 1981 SCC (Cri) 516 (unreported) H.M.
Seervai, Constitutional Law of India, Vol. II (N.M. Tripathi, Bombay 1993) at p. 1198.
Modernisation’s international dimensions
ee e ll 673
“Superstition is a belief or notion, not based on reason or knowledge,
in or of the ominous significance of a particular thing or circum
stance,
occurrence or the like but mainly triggered by thoughts of self aggran-
disement and barbaric at times as in the present case. Superstition cannot
and does not provide justification for any killing, much less a planned
and deliberate one. No amount of superstitious colour can wash away
the sin and offence of an unprovoked killing, more so in the case of an
innocent and defenceless child.’33
Article 51-A(j) requires the citizens to strive towards excellence in all
spheres of individual and collective activity so that the nation con-
stantly rises to higher levels of endeavour and achievement. This pre-
supposes upgrading the competence and performance of the nation
vis-a-vis modernity through individual and collective efforts. Madhya
Pradesh High Court has held in a case that since excellence in individ-
ual and collective activity requires a happy home, spouses have basic
duty of avoiding bitter relations within the family, and renouncing
practices derogatory to the dignity of woman Improving the natural
environment is also an overt act of change from the present unsatis-
factory situation, obligated upon the citizens through national consen-
sus»> Thus, the direction of modernisation in these change processes
is clear.
The second set is about continuity. Article 51-A(b) obligates citizens
to cherish and follow the noble ideals, which inspired our national
struggle for freedom. Article 51-A(f) imposes duty to value and pre-
serve the rich heritage of our composite culture. Protection of natural
environment including forests, lakes, rivers and wild life, and to have
compassion for living creatures is also a duty prescribed. Preservation
of rich heritage of the past along with scientific spirit is a challenging
task as it sheds superstitions and irrationalities.
15.3. Modernisation’s international dimensions and social

transformation
Social transformation through modernisation has received a high

degree of stimulation from application of international policies, norms
and economic relations. Broadly, two spheres of international influence
can be found, which have brought changes in state policies, market
behaviour, and group and individual life. First is the ever broadening
sphere of general international law, and second, the versatile instru-
ments of international economic law. Together, they leave no corner of
of
social and economic life untouched. Both are products and causes
SC 394 at p. 399.
33 Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338: AIR 2004
34 Synil Kumar v. Usha, AIR 1994 MP 1.
35 MC. Mehta v. State of Orissa, AIR 1992 Ori 225 at p. 227.
Fee ee an RE ID RS PRE AAS SST
intensive socio-economic interactions. In both have been evolved, new

concepts and new agencies equipped with legal competence to greatly
sensitise nations’ social fabric and influence human life.
15.3.1 Modernising impact of international law

The social face of international law, coupled with its expanding dimen-
sions, has great modernising impact upon national legal systems and
upon human life in general. International law’s historical origin is
traceable to sense of morality, comity and generosity of nations and
their people in the course of international relations2° Natural law ide-
ology of just law and supremacy of moral behaviour shaped its growth.
With the dawn of renaissance, rationalising of its foundation took place
by keeping away the influence of divine law and by center-staging the
concept of common benefit of mankind under the scholarly leadership
of Hugo Grotius?? Positivism introduced scientific method of deriv-
ing ideas from experience. What states actually did in their relation
with other states—through formulation of treaties and following of
customs—became the essence of law of nations in the 18th century2*
Concepts of nation state and state sovereignty got crystallised in the
context of inter-state competition and power play of diplomacy in the
1gth century. Collective will of the community was mustered to build
social solidarity for international agreements. The nexus between peo-
ple and state within the nation was source of strength for respecting
the international pacts on the basis of the concept of pacta sunt servan-
da» Irrespective of the question whether the national legal systems
followed the practice of monism or dualism, the interpermeability
of norms between the two planes—international law and municipal
law—became a source of strength for international law.
The founding of the International Committee of the Red Cross in
1863 and the efforts of humanisation of international conflicts through
new norms reflected the interface between law and society in the back-
drop of agonising experience of destructive wars.” Treipel, an interna-
tional law scholar of 19th century representing the positivist theorists,
regarded state will as supreme but inferior to collection of states will
put together.
°° Malcolm N. Shaw, International Law Fourth (Ed.), (Cambridge University Press,

Cambridge 1998) at pp. 12-5.
% Ibid, at p. 21.
8 Tbid, at p: 23.
* Ibid, at p. 26.
° Ibid, at p. 24.
*! Ibid, at p. 25.
Modernisation’s international dimensions 675
sO
The two world wars in 20th century posed big challenges to the
growing trends of law-society interactions. The wars were the out-
come of accumulating errors of state sovereignty concept, lack of
appropriate interaction between people and state within the domestic
sphere, and ruthless competition for supremacy by sacrificing the con-
cept of peaceful co-existence of states. The responses to the trauma by
establishing the League of Nations first, and improvising the system
by forming United Nations Organisation in 1946 with comprehensive
vision for world’s survival and development with dignity reflect one
of the most creative contributions of law—society interaction.” The
avowed policy of de-colonisation and human rights protection, for-
mation of dependable forum for making of international law and the
thrust for or institutional guarantee of peaceful co-existence underly-
ing the UN Charter narrowed down the gap between law and the peo-
ple’s aspirations. The fact that individuals, organisations and interna-
tional institutions also became subjects of international law has a great
significance in the context of guarantee of human rights, which has
cast tremendous influence upon individual and social life, and upon
domestic legal systems. From Euro-centric set of international under-
standing to universal legal system, international law took a big stride
influencing through municipal legal systems.
The streams of communist and the Third World ideologies have
also made their own contribution in making international law socially
vibrant. The Russian Revolution’s advocacy for principles of equality
and self determination of nations and peoples, and for principles of co-
existence and cooperation was a logical fall out of an effort to build a
non-exploitative society by resolving the antagonism between capital
and labour. While this had greatly influenced the making of the UN
Charter, the cold war that ensued after the Second World War between
the capitalist and communist countries made international law a hand-
maid of international politics to certain extent. With the restructuring
of Soviet economic policy and dissolution of Soviet Union in 1991 and
collapse of Yugoslavia, the cold war ended, and the gap was filled by
increased global interdependence and international cooperation.”
Entry of new players of the game, the Third World Countries, pro-
vided a new dimension to international law’s social face. The legacy of
bitterness over their past colonial status, their impoverished economy,
their volatile political atmospheres that were yet to get stability of
democratic governance, and umpteen social problems were to be over-
come by them with the dream, determination and deed to establish a
#2 bid, at p. 27.
43 bid, at p. 31.
676 Modern isatio
eSca,oe ne Lawaes
n and Ce,
ia eR en see
new happy world. They constitute majority in the General Assembly
and their impact is reflected in the General Assembly resolutions and
declarations that express their fears, hopes and concern. Yet, their col-
lective strength for bargaining is not well demonstrated due to diver-
sity of interests and lack of solidarity.
Modern international law has more frequently pierced the surface
of municipal law and infused into its numerous layers, the message of
humanism, welfare and cooperation. In contrast to the war era where
political diplomacy and race for dominance sidelined the purpose of
law, the post-war scenario witnessed revival of natural law ideology
in the international legal policy and keen interest in the sociologi-
cal aspects of international law especially in the domain of interna-
tional human rights and institutional arrangements for international
cooperation. McDougal’s description of the function of international
legal rules as one to communicate the perspectives (demands, iden-
tifications and expectations) of the peoples of the world about the
comprehensive process of authoritative decision at the international
level and their national application opens up the social vista of inter-
national law.* The search for binding quality of international law in
the ultimate acceptance of world society and the analysis of legitimacy
of international law in transparency, validation, coherence and adher-
ence have refocused the blurring dichotomy between international law
and municipal law.‘* Recognition of new sources of law—state prac-
tice, juristic opinion, acade.nic writings, etc.—has increasingly relied
on social side of international law. The exponential growth of human
rights law through international human rights instruments has a great
humanising and the consequent social transformation dimension. In
the domain of rights of indigenous communities, women, children,
racial minorities, disabled persons and displaced persons, the gradu-
ally evolved tall human rights standards have great transformative
effect.” They have stimulated great many nations to incorporate those
values into the domestic system and bring ameliorative effect benefit-
ing the vulnerable sections of the society. Better human right situa-
tion has been both standard and mechanism for social transformation.
The social side of international law has strongly and convincingly
expressed itself through the brooding omnipresence of human rights
jurisprudence.
Brushing aside the controversy of monism and dualism, the interac-
tion of norms at both the planes has cast creative impact upon social
“Ibid, at p. 35.
*° M.S. McDougal, “A Footnote”, (1963) 57 AJIL at p. 383.
*° Malcolm Shaw, op. cit., at p. 51.
” See supra, Chs. 5, 6, 10, 12, 13, 14.
Moder
a nisation’s international dimensions
Ci 677
life if one looks to the mammoth international human rights
jurispru-
dence. India has travelled beyond specific adoption theory and
in the
Bangalore Declaration of 1994 new avenue for judicial incorporat
ion
of international human rights law has been opened. In construct-
ing new facets of right to human dignity especially in the context of
rights of women and children, and in the matter of positive rights like
right to food, health, environment and security from torture, interna-
tional legal instruments have played a significant role of strengthen-
ing human rights jurisprudence in India.” The ensuing contribution
to the cause of social transformation is also remarkable one. For exam-
ple, law’s silence in the matter of protection of woman at workplace
against sexual harassment could be filled with a new voice of human
rights by referring to international human rights law in Vishaka, whose
social fall out is abundantly expanding its ripples>° A strong consti-
tutional protection of human rights could be visualised and built
through internalising such norms ever since absorbing the influence
of Universal Declaration of Human Rights in the very making of the
Indian Constitution. By providing elegant philosophical input, theo-
retical thrust and practical guidance through supervisory institutions
or energising fora, the modernising function is admirably performed
by international human rights law so as to reach the common man. The
functions of International Labour Organisation, FAO and ECOSOC
have been quite important in this regard.
Another sphere of modernising influence is that of international
environmental law." Problems of ozone depletion, global warming,
climate change, trans-boundary atmospheric pollution require inter-
national cooperation and solution. Depending upon its legal nature,
hard or soft, its legal impact is experienced in national legal system. In
both the contexts, it has been more than mere moral statement or pious
aspiration. It socialises society’s members to behave in a particular
manner with regard to nature. The efficacy of mechanism for recep-
tion for and response to international obligations in the domestic front
counts a lot for this absorption.” India has been enthusiastic party to
48 It provides that the judiciary shall incorporate the human rights guaranteed in
international instruments in the course of adjudication of cases unless inconsistent
with municipal law. The principle is applied in Masilamani, Chandrima Das, and other
cases.
49 See generally, P. Ishwara Bhat, Fundamental Rights Eastern Law House (Kolkata
2004) Chs. 8 and 15.
” Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
51 Malcolm Shaw, op. cit., at pp. 585-89.
World Order (West
52 Lakshman D. Guruswamy, International Environmental Law and
1999) Ch. 3; Peter H. Sand, “The Evolution of International
Group, St. Paul Minn
in Daniel Bodansky (Ed.), International Environmental Law
Eacirouiwental Law”
ee
OP
numerous international environmental treaties, conventions and pro-
tocols. Some of the norms of international environmental law, which
cast indelible impact upon domestic law and policy in India, can be
perused for understanding the direction and nature of social transfor-
mation. The 1972 Stockholm Declaration on the Human Environment
has quite importantly stated that the States’ sovereign rights to exploit
their resources are so exercisable that activities within their jurisdic-
tion or control do not cause damage to the environment of other states
or of areas beyond the limits of national jurisdiction. Emergence of
state’s duty to notify and consult with other-systems to prevent harm
to neighbouring countries’ environment when it undertakes any oper-
ation within its own territory is another development. Recognition of
right to wholesome environment as a component of right to life under
Article 21 of the Indian Constitution through judicial interpretation
is one of the positive contribution of international law2? Some of the
landmark legislation like Environment Protection Act, Water and Air
Acts and various regulatory measures framed there under are traceable
to the influence of international law. In fact, India’s subscription to the
conventions provided a source of legislative power. The influence of
catena of principles of international environmental law that got incor-
porated into Indian legal system by judicial receptivity and legislative
internalisation cannot be forgotten when problems of industrialisation
or commercialisation had to be tackled through appropriate policy of
“modernising” by balancins between continuity and change “Polluter
pays principle” “precautionary principle” and “principles of sustain-
able development” and inter-generational equity were elaborated
and applied to provide specific remedies. In Vellore Citizens’ Welfare
Forum case Justice Kuldip Singh gave a detailed analysis of the growth
of international legal concept of sustainable development as part of
customary international law and applied it in giving comprehensive
direction to clean the pollution created by some tanneries in Tamil
Nadu.*State’s duty to anticipate, prevent and attack the causes of envi-
ronmental degradation and duty to act with all promptness have been
carved out from the precautionary principle.
Commercial exploitation of resources resulting in environmental
degradation has been a cause of concern for both international envi-
ronmental law and international human rights law in the contexts
where indigenous people's rights regarding environment are at stake.
(Oxford University Press, Oxford 2007) at pp. 29, 37.
°° Subhash Kumar v. State of Bihar, (1991) 1 SCC 598: AIR 1991 SC 420 at p. 424; M.C.
Mehta v. Union ofIndia, (1992) 3 SCC 256 at p. 257; Virender Gaur v. State ofHaryana, (1995)
2 SCC 577 at p. 581.
* Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647: AIR 1996 SC
2715;
Modern
e isation’s international dimensions
ss i‘(‘éi‘ 679
As viewed by Shyam Divan and Armin Rosencranz, such exploitations
threaten to undermine the economic and spiritual fabric of their cul-
tures, and often result in forced migration and resettlement, and hence
the struggle to protect the environment is often part of the struggle to
protect the cultures of indigenous peoples Powerful legal tools for the
struggle are supplied by international law. Indian legal response to
receive and accommodate them is highly promising.
In addition to the above socialising impact of international law, the
developments and refinements in other spheres have their own ramifi-
cation upon India. North-South tension in the international resources
law has witnessed sidelining of the concept of Common Heritage of
Mankind because of the commanding position of American super-
power.* America’s isolated position, which arose by not participating
in International Seabed Authority’s working or by not signing Moon
Agreement that intended to streamline and regulate, has harmed the
efforts in developing a cooperative international law. Failure of inter-
national community to develop a strong international law to combat
transborder terrorism through effective institutional arrangements
has put the countries like India into an unenviable position. In spite
of success in forging the law against genocide and in establishing
International Humanitarian Law on sound footing, and even with
International Criminal Tribunal exercising its jurisdiction, the gap in
this front has been problematic.
From the above it is clear that India’s membership of international
community is a big source of ideologies and policies for modernising
its legal systems and socialising its people. The fruits of international
human rights law and international environmental law have a very
welcome effect on India’s saga of social transformation. Tapping the
rich social side of international law will be of comfortable consequence
in future also.
15.3.2 Modernising effect of international trade law: a focus on LPG

Ever since the ancient times international trade in India had cast con-
siderable impact upon the economic, social and cultural life of people.
Overseas trade with Rome, Greece, Middle-East and Far-East witnessed
not only exchange of merchandise but also of ideas and technology.
India’s flourishing trade along with technological advancement dur-
ing the period 200 BC to 300 AD demonstrated the traces of global
(2nd
5 Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India
ADT=DP, 591-92.
Edn., Oxford University Press, New Delhi 2001) at pp. 451-52,
Heritage of Mankind
5 Sandeepa Bhat, “Development of the Concept of Common
University Law Journal
in Law of the Sea and the 1994 Deathblow” (2008) 1 Mysore
TA,
680 eModernisation and Law
ee
Be a
India's
visions” As a peninsular nation and strong economic power,
position in global trade was gainful. Colonial and cultural expansion
in Greater India (Cambodia, Java, Sumatra, Bali, Borneo, etc.) was an
outcome of efforts to have global links5* The influx of warriors and
rulers from different racial stocks into India at different epochs of her
history expanded the global links. It was colonisation by the British
and their exploitative tariff policy that drastically dwarfed India’s
position and output in international trade, In the place of flourish-
ing international trade that kept various sections of Indian society self
reliant and happy, a dependent and impoverished economy resulted
owing to manipulation of tariff policy. Bitter taste of protectionism
prevailed for a long time in India in lieu of free trade. The European
economic ideologies of mercantilism, colonialism and_ protection-
ism had the sole objective of economic dominance without slightest
thoughts that wealth of nations consisted in nation’s better standard
of living and enhanced availability of consumption alternatives to the
citizens, as Adam Smith visualised.” The Great Depression of 1930s
was culmination of economic nationalism and of unequal distribu-
tion of the surplus income produced by capitalisms, or non-payment
of adequate wages to the masses of workers.* But the shrinking world
trade was wrongly diagnosed and erroneously treated by various
nations by concentrating on home market and driving away foreign
products through high tariff walls. Tariff created national monopoly,
obstructed competition, »enefited some at the cost of the other class
and permitted the vested interests to swallow up the vulnerable. Tariff
reduced international trade; the languished trade rendered industry to
suffer, and loss in industries rampantly enhanced unemployment. The
vicious circle went on and on, even to strangulate artisans and peas-
ants at the countryside.
The strange behaviour of money had global impact and an unfor-
gettable lesson to teach the humanity. Jawaharlal Nehru wrote in 1933,
“The world trade is becoming, and has largely become, a single unit—
that is to say, that life, activities production, distribution, consumption,
etc. ail tend to be international and world wide, and this tendency is
increasing. Trade, industry, the money system are also largely interna-
tional. There is the closest connection and interdependence between
*” R.C. Majumdar, An Advanced History of India (4th Edn., Macmillan, New Delhi
1978) at pp. 129-30. Romila Thapar, A History of India, Vol. 1 (Penguin Books, Middlesex
1966) at pp. 109-20.
** R.C.Majumdar, op. cit., at pp. 202-16.
» See supra, Ch. 2.
*” Jawaharlal Nehru, Glimpses of World History (JNMF and Oxford University Press
1999) at pp. 798-03.
oh DIG,
Modernisation’s international dimensions
681
different countries and an event in an y of them has reactions in
others,”
The Great Depression’s omnipresent tentacles and the Secon
d World
War’s shattering impact provoked the leading nations to find
remedies
through international economic institutions. International Mone
tary
Fund, World Bank and International Trade Organisation were inten
ded
to be the three pillars of new international economic structure in 1947
at Brettonwood. But ITO did not come into existence.
The multilateral arrangement for trade negotiation that came into
existence was GATT in 1948.® Eight rounds of talks in the functioning
of GATT system enabled negotiations for reduction of tariff and non-
tariff barriers amidst the trading nations. World Trade Organisation
emerged ultimately in 1995 as full-fledged international organisa-
tion outside the UN system but with effective mechanisms for deci-
sion making, dispute settlements, and sanctions. Its massive output of
agreements has a scope to govern not only trade in goods and related
problems of unfair practices but also to regulate trade in services,
trade related aspects of intellectual property trade related investment
measures and have bearing on environment, health and societal issues.
While law’s role in international monetary relations was minimal, the
World Bank’s facilitative role towards economic development of the
member nations was crucial. The GATT negotiation system gradu-
ally shifted from ad hoc norms arising from power based diplomacy
to rule-based system. It is these mighty economic institutions that
wielded far-reaching influence upon the national economic systems to
embrace the ideals of Liberalisation, Privatisation and Globalisation.
All these approaches are extension of the argument for free trade. As
against protectionism, the law of comparative advantage had been pit-
ted by David Ricardo as a pursuit for universal good of the whole. He
said, “By stimulating industry, by rewarding ingenuity and by using
most efficaciously the peculiar powers bestowed by nature, it distrib-
utes labour most effectively and most economically while, by increas-
ing the general mass of productions, it diffuses general benefit and
binds together, by a common tie of interest and intercourse, the uni-
versal society of nations throughout the civilised world.”*4 According
to other scholars free trade promotes economic growth, facilitates
transfer of technology, upholds justice in social allocation of goods,
2 Ibid, at p. 801.
63 Mitsuo Matsushita, The World Trade Organisation (Oxford University Press, Oxford
2003) at pp. 1-7. .
“ David Ricardo cited by Robert Gilpin, The Political Economy of International
in Raj
Relations (Princeton University Press, Princeton 1987) at pp. 172-73 extracted
Lexis Publishing, 2001)
Bhalla, International Trade Law: Theory and Practice (2nd Edn.,
at p. 11.
tne
enhances the morality of non-exploitations and augments individual
freedom of business. The effect of free trade was visualised as protect-
ing the interests of workers and assisting the developing and the most
developed countries in their economic development.
15.4 Liberalisation and law
Liberalisation essentially connotes reduction in governmental regu-

lation and allowing opportunities for unfettered operation Oe
forces in determining economic process.® Together with its associ
concepts of Privatisation andGlobalisation, it spearheads far-reaching
economic changes...
and advantages of perfect
While the bitter lessons of protectionism
competition were clear before the policy makers after Independence,
the path of planneddevelopme nt
of theeconomy, poverty alleviation
and social welfare was also an option open to them. Instead ofthe
extreme policies of either command economy or capitalism, India fol-
lowed the Nehruivian modelofmixed economy, which was based on
self-reliance, equitable distribution, socialism and welfare state. This
required certain amount of control through regulations
and licenses.
But what emerged in course of time werelicence raj, the ever prolifer-
ating bureaucracy and “dysfunctionalising effect of over regulation’.”
The een eS ne eta aetices Actthe Imports and
Exports Act, Foreign Excl ange Ke ulation Act, Essential Commodities
Act and such other legislations provided for extensive regulations and
governmental intervention. That the governmental regulations were
counterproductive was picturesquely depicted in the image of “tiger
in the cage” given to the Indian economy. | :
The scope for bureaucratic intervention was often exploited by the
privileged. Becauseof lax law, loose programmes and corruption, the
policies of welfare state—social security, public health senior eaual
ity and land -reformis—did not yield satisfactory result. Subsidies and
incentives were the false props that’ Weakened the competitiveness in
additionto burdening the public exchequer. But, it was thought that
uncaging of the tiger was really possible only with New Economic
Policy that included in its fold Liberalisation, Privatisation and
® Jayati Ghosh, “Indian Economy-Major Debates since Independence” in TJ. Byres

(Ed.), Liberalisation Debates (1998) at p. 245; Sridhar Pandey and Jay Shankar Tiwary,
“Economic Liberalisation and Employment in India” in Ashok Mathur, Economic
Liberalisation and its Implications for Employment (2002) at p. 56.
* Jean Dreze and Amartya Sen, India: Economic Development and Social Opportunity
(Oxford University Press, Delhi 1998) at pp. 6-8.
* Ibid, at p.179.
Liberalisation and law
e
Se e.
eementimminneetn 683
Globalisation.® But that realisation came from the ressure exerted by
IMF and World Bank wah dn asotlorarateeritinencal crunch and
foreign exchange crisis. International financial agencies were willing to
help onlyif India faced the path of financial discipline. Disintegration
of
Soviet Union and shift from command to market economy in other
parts of the globe supported the view against regimented economy.
The structural adjustment package (SAP) emerged in this context
included several éléments: reduction in government's fiscal deficit;
austerity in public expenditure; control or reduction of domestic audit;
relaxation of external trade; deregulation upon essential commodities;
cuts on subsidies to goods such as food, fertilisers, electricity; reform of
public enterprises by reduction of state subsidies; closure of loss mak-
ing enterprises and their privatisation. It also included policies that
allowed greater flexibility in the labour market in the matters of job
security, minimum wage and protective measures.® In brief, liberali-
sation meant change in market structure and equipping of the domes-
tic economy for facinginternational competition.
The Government
of India began to follow SAP in 1991 through legislative changes and
new adenin ehiatve polities Traboliched pelaction fesnaes for most
industries, reduced tax on profit from export sales, allowed partial sale
of shares in selected public enterprises and enacted laws on foreign
trade and competition.
In order to understand the law-society interac-
tionin the process of social transformation occurring through change
in national economic policy, the enactment of two legislation can be
highlighted as sample study. First, the Foreign Trade (Development...
and Regulation) Act, 1992 and second the Competition Act, 2001.
Thé Imports and Exports (Control) Act, 1947 had conferred wide
powers upon the central government to prohibit or control imports
aid exports, Originated as temporary.measure,itwas amended from
incorporate provisions about its effective implemen-
time to time to
tation through process_of search,.seizure and confiscation of goods
transacted in violation of the Act»However, this was subject to compli-
ance with procedural safeguards. In brief, the legal strategy was com-
mand and control. But judiciary used to interfere to maintain some
modicum of fairness in the operation of the law (Anglo Afghan Agencies
by the
case)7° In the background of liberalisation,.this-Act.was replaced
Foreign Trade (Development.and.Regulation).Act,.1997. The basic pol-
icy of the legislation is to provide for the development and regulation
of foreign trade b ilitating.i into, and augmenting exports
* Ibid, at p. 181. : |
ment: India
Jayati Ghosh, “Employment and Labour under Structural Adjust
569.
since 1991” (1995) 38 The Indian Journal of Labour Economics
” Union of India v. Anglo Afghan Agencies, AIR 1968 SC 718.
the
from India. Power is conferred under Section.3.0f the Act upon
gn
central government for this purpose. The Director General or Forei
Trade appointed under the Act shall advise the central government.in
the formulationofthe export and impart policy. The Director has the
powe r g, suspending
of issuin and cancelling the Importer-Exporter
Code Number. While some features of command and control are still
continuing, the legal environment is favouring free trade. With the
emergence of WTO this policy is strengthened.
The MRTP Act had aimed at non-concentration of material resources
combinat
and at nullifying trade
of production ions
and other restrictive
economic reform programme
trade practices. After the adoption of the
in 1991, corporate sector began to press for scrappingof the MRTP Act
the
with an argument that-the Act had lost its relevance incontex t of
competitive market and that “size” should not be a constraint in global
competition. Upon the recommendations of the Raghavan Committee
Report, the Competition Bill, 2001 was framed, i va was passed by
parlament TREebjectives ofthenewAct that replaces MRTP Act are
to enicommane, competion, to prevent abuse of dominant position, to
ensure level playing field and to protect the consumer. First, its‘control-
agreements
ling effect is confined to those between enterprises, which
have an appreciable adverse effect on competition. Since all restrictive
agreements are not anti-competitive and the Competition Commission
considers various factors including structure of the market in deciding
the element of anti-comy etition unlike the earlier law, the new law’s
focus is to wipe off the real evil. Second, it regulates all agreements
causing abuse of dominance whereas the MRTP Act had considered
dominance per se bad. Dominance has been defined as the position
of strength enjoyed by an undertaking, which enable s
it *to“operate
independent of competitive pressures in the relevant market and also
to appreciably affect the relevant market, competitors and consumers
by itsactions, Abuse includes changing or paying unfair prices restric-
tion of quantities, markets and technical development, discriminatory
behaviour, predatory pricing and any exercise of market power lead-
ing to the prevention, restriction or distortion of competition. Thirdly,
it regulates all mergers, which create a position of dominance. Pre-
merger notification is made voluntary. Review of post-merger notifica-
tion is excluded if the combined turn over is less than Rs 3000 crores or
combined asset size in India is less than Rs 1000 crores.
The direction of change in both the legislation—Foreign Trade Act
and Competition Act is towards enabling of liberalisation. But conti-
nuity of the law’s concern to protect national economy’s interest and
consumers’ interest is also clear in the legislation. Repeal of earlier leg-
islation did not mean total reversal of policy. In fact, law was refined to
Privatisation and law 685
SS EEN ae ee Oa ee
meet the new challenges. In the matter of restoration of sick industries,
state began to take hesitant steps. Voluntary retirement was encour;.
aged in public enterprises and banks to downsize the expenditure.
These had impact upon employment situation.
15.5 Privatisation and law

Privatisation, a component in the policy of liberalisation, connotes
transfer of rights of ownership, operation and development from
the public to private sectors and the application of the private sector
objectives and disciplines in the operation and management of public
enterprises combined with commercial risks7‘ It reduces the extent of
involvement of the state, or public sector in the economic activities of
the nation. Denationalisation, disinvestment, entry of private sector to
areas hitherto exclusively reserved to state, and transfer of manage-
ment and control of public sector through franchising (private own-
ership with public sector’s use) contracting out governmental service
and leasing out physical facilities to private operators. The purpose
of privatisation is to promote competitive efficiency, ensuring better
quality products and services, avoidance of waste and optimising of
resources. The legal development has followed the policy choice made
by the state. In Bharat Aluminium Co. Ltd. (BALCO) case” the Supreme
Court declined to interfere with the economic policy of the govern-
ment on the ground that it was purely administrative decision, and
found no arbitrary, conspicuous or illegal exercise of power. The Court
also held that the requirement of complying with principles of natural
justice did not arise. The BALCO disinvestments deal raised political
controversy. Disinvestments Commission was constituted in 1996 to
select, prioritise and supervise the method of disinvestments.
Regarding the validity of Enron project, which had adverse impact
upon the business of State Electricity Board, the Supreme Court again
declined to intervene as it involved administrative policy and lacked
adequate public interest? In Delhi Science Forum v. Union of India’ the
challenge to the award of telecom license to private companies was
rejected as it involved economic policy accepted by Parliament and
there was no mala fide exercise of power. Privatisation has often
adverse impact upon rights of workers as it persuades for downsiz-
ing the workforce in order to optimise resources. Relaxation of the
at p. 32.
” G. Ganesh, Privatisation Experience Around the World, Vol. XIII (1998)
SCC 333: AIR 2002 SC
72 BALCO Employees’ Union (Regd.) v. Union of India, (2002) 2
73 CITU v. State of Maharashtra, (2004) 3 JT 7.

74 (1996) 2 SCC 405: AIR 1996 SC 1356.
iee me e
considerations for social and gender justice is another problematic fac-
tor of privatisation. In the matter of night shift for women workers and
reservation in private employment (which was transferred from public
sector), the law is not yet settled.
15.6 Globalisation and law
Globalisation, the last but the most important factor in the trio of New
Economic Policy, is a process by which the interconnectivity of the
world is more intensified by increased economic, social, political and
cultural contacts” It has inherent nexus with liberalisation because of
its pro-market policy. Economic rationality, competition and efficiency
are the key factors emphasised by it7°The Human Development Report,
2001 defines it as the free movement of goods, service, people and
information across national boundaries. It denotes acceleration of the
interconnections in tHe global economy and the related phenomenon
of the rise of both institutional financial markets and global corpora-
tions.” It takes the whole world as a single market as a result of which
individual nations, labour and communities lose their bargaining
power and suffer erosion of identities, while they reap the advantage
of globalised market because of availability of products and services
at lower prices* Transnational character of the internet has contrib-
uted towards transforming economic, political and cultural processes.
Global understanding of tne problem of environmental pollution has
evolved international norms relating to environmental security. The
” According to Tony Schirato and Jenn Webb, it is a set of technologies, institutions

and networks operating within, and at the same time transforming social, cultural,
political and economic sphere of activity; it is as much as a set of ideas. See, Tony
Schirato and Jenn Webb, Understanding Globalisation (Sage Publications, New Delhi
2003) at p. 21; P.G. Jogdand and S.M. Michael (Ed.), Globalisation and Social Movements
(Rawat Publications, New Delhi 2003) at pp. 1-5.
”° S.K. Verma, “Globalisation, Marketisation and Constitutional Mandate” (2000)
42 JILI 395 at p. 397.
” Simon Dalby, “Globalisation, Geography and Environmental Security” in
Eleonore Kofman and Gillian Youngs (Ed.), Globalisation: Theory and Practice (2nd Edn.,
Continuum, London 2003) 35 citing Barnet and Cavanagh (1994).
” Eleonore Kofman, “Political Geography and Globalisation as we Enter the
Twenty-first Century” in Eleonore Kofman and Gillian Youngs, op. cit., at pp. 17, 20-21;
according to William Twining,” ...“globalisation refers to those processes which tend
to create and consolidate a unified world economy, a single ecological system, and a
complete network of communications that cover the whole globe, even if it does not
penetrate to every part of it’” Globalisation and Legal Theory (Butterworths, London,
2000) at p. 4; Anthony Giddens characterises the process as “the intensification of
world-wide social relations which link distant localities in such a away that local
happenings are shaped by events occurring many miles away and vice versa” The
Consequences of Modernity (1990), at p. 64.
Globalisation and law
Sah in a 687
cultural dimension of globalisation consists in reduced importance
of
non-international languages, market orientation in cultural products
and exchange of great and little tradition”? The threat to language
survival and to the identity of linguistic community is to be tackled
by meticulous efforts of localising the globalisation development by
translation, by application of information technology and by extensive
knowledge dissemination that would equip the people to participate
effectively in the global village. While sustained economic growth and
development of the world economy is the aspiration behind globalisa-
tion, as the Copenhagen Declaration has stated:
“At the same time, the rapid processes of change and adjustment have
been accompanied by intensified poverty, unemployment and social
disintegration. Threats to human well-being, such as environmental
risks, have also been globalised. Furthermore, global transformations
of the world economy are profoundly changing the parameters of social
development in all countries. The challenge is how to manage these
processes and threats so as to enhance their benefits and mitigate their
negative effects upon people.””
Globalisation’s most important international institution in the field of
trade is the World Trade Organisation whose impact upon society and
law has been far reaching. The very formation of WTO was culmina-
tion of eight years of Uruguay Round of Multilateral Trade Negotiation
by large number of prominent nations of the world. Evincing this fac-
tor of global acceptance, the Ministers at Marrakesh in 1994 recognised
that globalisation of the world economy has led to ever-growing inter-
action, between the economic policies pursued by individual coun-
tries including interactions between the structural, macro-economic,
trade, financial and developmental aspects of economic policy making
and that the task of achieving harmony between these policies was
on national governance. Article 16 Clause 4 of WTO Agreement states,
“Each member shall ensure the conformity of its laws, regulations
and administrative procedures with its obligations as provided in the
annexed Agreement.” Further, sanctions to enforce Dispute Settlement
Body’s decisions supply the binding force to WTO rules to build up a
rule-of-law system. Hence, percolation of globalised rules to the local
levels of member nations is significantly contemplated.
The wide canvas of laudable objectives that the WTO has set, is suit-
able for holistic treatment of the globalisation policy. WTO’s purposive
character adds to its legitimacy when we look to its objectives such as
raising the standard of living, ensuring full employment, increasing
New Delhi
7 Yogendra Singh, Culture and Change in India (Rawat Publications,
2000) at pp. 139-40.
of 1995).
6” UN, The Copenhagen Declaration and Programme of Action (Act 5
688
sg ET Modernisation and Law
ERT EE 1G ORE LON EB
the volume of real income and effective demand, expanding the pro-
duction of trade in goods and services, optimal use of world’s resources
in accordance with the objective of sustainable development, seeking
protection and preservation of environment and to enhance the means
for doing so.*' It is also significant to note the recognition in the agree-
ment that there is need for positive efforts designed to ensure that
developing countries, and especially the least developed among them,
secure a share in the growth of international trade commensurate with
the needs of their economic development. In the light of these ideolo-
gies, the value orientation contemplated in the functioning of the giant
institution towards a welcome social transformation significantly
raises hopes for the best. Aimed at these purposes and also equipped
with fairly good constitutional structure, WTO has great potentiality
in bringing social transformation. Bound by the Most Favoured Nation
and National Treatment principles of equality, the WTO members are
obliged to mutually interact in a level playing field. WTO Agreements
provide for wide ranging policies: removal of tariff and non tariff barri-
ers and technical barriers to trade; prohibition of subsidies and dump-
ing; MFN treatment of trade related aspects of intellectual property
and trade related investment measures; equal opportunity for trade in
services; safeguards through sanitary and phyto-sanitary measures;
and gradual withdrawal of subsidies in agricultural sector.
India as a founder member of GATT (1947) and WTO (1995) has a
track record of participating in progressive reduction of tariff and
opening up of the economy to the operation of market forces. As a lead-
ing developing country, it has joined hands with the block of develop-
ing and least developed countries in recent Ministerial Conferences
to bargain for necessary concessions in the field of IPR, food security,
health and agriculture.* A sea change has taken place in the Indian
legal regime of IPR in response to TRIPs-Agreement’s insistence. Many
of the changes were indispensable in the background of levelling up
of the extent of protection to intellectual property rights. The proc-
ess of change management involved contribution by legislative action
stretched over considerable time, moderating influence of political par-
ties, debates in media and public forum and participation by NGOs. In
the field of copyright, trademark, design and new forms of IPR like
Geographical Indications, Integrated Circuits in Semiconductor chips,
the change brought were largely non-controversial. In the matter of
plant varieties, breeders’ and farmers’ rights, formation of legal policy
was influenced by public debate, NGO demands and agitations by
*! Preamble to WTO Agreement.

*2 See, for discussion Andrew T. Guzman, “Global Governance and the WTO”
(2004) 45 Harvard International Law Journal 303.
2
oscar
3
farmers.® How even at the teeth of TRIPs compulsion, self-determina-
tion could be assured is demonstrated in this development. Regarding
patent reforms, since Indian Patent Act, 1970 itself was a progressive
measure and conducive to industrial development, it is with great
reluctance that central government proceeded to bring changes. The
changes were in instalments and were piecemeal. Some of the changes
like extension of product patent protection to inventions in the field of
medicine, food and drugs are not favourable to the national interests
but are to be faced by alternative strategies for enhancing the invention
capacity. However, India could retain effective power of compulsory
acquisition of patents within the legal framework. In fact, for promot-
ing public health security, the power of the state to acquire patent on
drugs and medicine has been recognised by the Doha Declaration.
That the TRIPs’ impact was far reaching both ideologically and in
practical details shows how in modern times law is not entirely prod-
uct of self-determination. The ideological tilt in favour of commer-
cialisation ignoring the implications of human rights perspectives and
consideration of knowledge society came from the basic approach in
TRIPs that intellectual property rights are private rights. A long stand-
ing Indian tradition and constitutional development of subordinating
the property right to other human rights, welfare and public interest*
got a set back in the post 1995 IPR law. Another area of concern caused
by WTO is that of agriculture and small-scale industry which will be
discussed in a subsequent chapter.
Implication of WTO-sponsored globalisation for India is a multi-
dimension issue responded by various scholars. The strain that the
process is likely to cause upon the Constitution’s Part IV tasks, which
the state is expected to handle, has been a cause of widespread worry.
The broad features of market-oriented economy—foreign direct invest-
ment, elimination of subsidies, deregulation, delicensing, liberalised
fiscal policies, free competition and flourish of multi-national com-
panies—are difficult for absorption into a system primarily oriented
to socialistic pattern of society or aiming at a “just social order”. S.K.
Verma views that while it is possible to eliminate the paternalistic role
of the state, state should not disown its welfare role of ensuring basic
rights for its population.’ Promotion of foreign investment should sup-
plement domestic production. “An equitable distribution of resources
between the production and social sectors should be considered;
Foundation,
® Vandana Shiva, The Enclosures and Recovery of the Commons (Research
Third Sector’s Instrumental
New Delhi 1997) at pp. 160-61 see also, P. Ishwara Bhat, “The
Conference, Bangalore
Role in the Intellectual Property Rights in India” 4th ISTRAP
2005.
(2004) Ch. 13.
84 Supra, Ch. 4; see also P. Ishwara Bhat, Fundamental Rights
8 SK. Verma, op. cit., at pp. 407-08.
ee
ON eee
otherwise the poor will be the worst hit. Its tax policy and investment
measure etc should be geared in this direction.” Expanded mean-
ing attributed to the term “state” under Article 12 would impose
obligations of welfare upon the new power holders. Ranbir Singh
points out the disturbing features of globalisation vis-a-vis the Indian
Constitution such as—ignored capacity of federalism and democratic
control, marginalised position of multilingualism, non application of
judicial scrutiny through PIL and transparency rules—and suggests
for strengthening these mechanisms to make the basic commitment
to people’s welfare under the Constitution, a reality.*” The Court’s duty
as the guardian of the Constitution that proclaims welfare state and
the socialist philosophy should not be detracted with the onset of eco-
nomic reforms. Another method of making globalisation compatible
with aspirations of people is by making it to work with dynamic grass
root democracy and the caring touch of civil society. Local solutions,
many a times, provide best answers to globalisation issues. NGOs have
tried to fill the gap created by state’s withdrawal from welfare task.*
Balancing strategy consists in taking the advantage of the emerging,
integrating, world economy without sacrificing the priorities of build-
ing a just and caring society.” With strong and sensitive Panchayati
Raj Institutions the problems of globalisation could be better handled.
As Muzaffar Assadi writes, “A multi-stakeholder approach involving
the State, market and civil society should be adopted for sustainable
development and social justice.”
Justice Rajendra Babu considers that globalisation increases the
importance of degree and direction of national governance which can-
not compromise with poverty, terrorism, child labour, environmental
devastation and ill health." He traces the roots of globalisation and
human rights in liberalism, finds no contradiction between the two,
and wishes their mutual reinforcement. He observes, “The multiple
and contradictory consequences of globalisation and the new chal-
lenge that they pose for observance of human rights have potential to
%6 Ibid.
*” Ranbir Singh, “Globalisation and the Indian Constitution” (2007) 6 Journal of the
National Commission of Human Rights 22.
*8 Neera Chandhoke, “Governance and Pluralisation of the Sate: Implications for
Democratic Citizenship” (12-7-2003 to 18-7-2003) 38 Economic and Political Weekly at
pp. 1957-68.
” V.S. Vyas, “Globalisation: Hopes, Realities and Coping Strategies” (2002) 37
Economic and Political Weekly at pp. 1109-14.
*” Muzaffar Assadi, “Interfacing Globalisation and Indian Democracy” in Gopa
Kumar, Future of Parliamentary Democracy in India (2007) at pp. 119, 158.
*! Justice Rajendra Babu, “Globalisation and Human Rights” (2007) 6 Journal of
National Commission of Human Rights 1.
Globalisation and law
a 691
undermine the traditional mechanisms for the protection of
human
rights... The effect of globalisation is that it has miserably failed
to
prevent widespread deprivation of human rights of the world’s poor.”
He suggests for promulgation of standards, streamlining of proce-
dures, and development of enforcement strategies at the national and
international levels to solve the problem.
The problem of unequal trade itself becoming the root cause of
human rignt violation is looked into by A. Jayagovind in an article.
While free trade is vital for economic development and distributive
justice, that is so by fulfilling the requirement of fair trade. From the
side of developed countries, fair trade requirement is to be satisfied by
elimination of subsidy and other unfair trade practices; and from the
side of the developing countries, by complying with the social clauses
and by making the production process fair and in compliance with
human rights. Use of TRIPs provision for compulsory acquisition of
drug patent is one method of making WTO regime human right com-
pliant. He observes:
“Globalisation has no doubt contributed to economic prosperity, but
the question is: prosperity to whom? While elitist section have benefited
from globalisation everywhere, vulnerable sections continue to be in
a miserable position. Human rights approach to trade requires us to
evaluate the benefits of globalisation from global point of view: how
mankind as a whole has benefited from this phenomenon.”"4
Thus, reforming the existing structure to humanise the globalisation is
very much required in order to realise globalisation of human rights.
In addition to the economic dimension, Globalisation has technologi-
cal, political, ideological, cultural and environmental dimensions. The
non-western societies have faced serious challenges in these spheres
also. As a component of modernity, globalisation has witnessed inten-
sive interaction between continuity and change. The social movements
for ecology, gender justice, dalit protection and cultural revival have
tried to mould the social development. Viewed from the angle of
equity, empowerment, justice and freedom, globalisation has deeper
sociological implications for individuals, communities and their tradi-
tions. In order to ensure social harmony and development with justice,
2 Ibid, at p. 11.
% A. Jayagovind, “Human Rights and Dimensions of Unequal Trade’ (2007) 6
Journal of the National Commission of Human Rights 13.
4 Ibid, at p. 21. b deel
Jogdand
Heiko Schrader, “Globalisation, Fragmentation and Modernity” in PG.
ation and Social Movemen ts (Rawat Publicat ions, New
and S.M. Michael (Eds.), Globalis
Delhi 2003) at pp. 12-29.
ne ans UiTiauas Ee
EES a
concerted action by civil society and community has been considered

as inevitable.
The division deepened in the modern times between the elite and
the common, rich and the poor, educated and the uneducated, and
rural and the urban is considered by Amartya Sen not as penalties of
globalisation but as failures of social, political, and economic arrange-
ments. He observes, “A wholesale rejection of globalisation would not
only go against global business, it would also cut out movements of
ideas, understanding, and knowledge that can help all the people of
the world, including the most disadvantaged members of the world
population.” However, the digital, cultural and social divide that glo-
balisation brought has sometimes agitated the minds of the deprived
sections only to outburst with slogans of “sons of the soil” and “mother
tongue at peril”»* At some other times, globalisation through its com-
municative ability has wooed and sensitised the local culture, added
value to its products, and brought them to the forefront.”
On the whole, the New Economic Policy has been a strong instru-
ment of modernisation. Sometimes disciplining, yet other times moti-
vating, the pressure exerted through it for competitiveness is a global
phenomenon. Glorifying the position of economic processes and the
factor of competition, its operation has been ruthless. The WTO objec-
tives remained only as idle wishes when the sway of trade competition
put agriculture and labour into penury forgetting the human face of
the problem. LPG has made ‘entry into all walks of life and all spheres
of law. It throws open the mixed bag of opportunities and challenges.
As a result, the dynamism of social transformation with the assistance
of law is put into rigorous test. It is doubtful whether law could con-
tinue its adherence to socialistic and welfare goals.
15.7 Modernisation, technology and law

Technology is the driving force of civilisation, and is an instrument
that propels social transformation. From the invention of wheel to that
of World Wide Web, from exploration of deep sea to that of border-
less outer space, endless technological advancements have profoundly
© SP Punalekar, “Other Side of Globalisation” in P.G. Jogdand and S.M. Michael

(Ed.), Globalisation and Social Movements (Rawat Publications, New Delhi 2003) at
pp. 35-50.
*” Amartya Sen, Identity and Violence: The Illusion of Destiny (2005) at p. 124 also at
p. 121.
** Amit Bhaduri, Development with Dignity (National Book Trust of India, New
Delhi 2005) at p. 28.
*” Yogendra Singh, Culture and Change in India (Rawat Publications, New Delhi
2000) at pp. 43-61.
altered the methods of production, means of transportation and modes
of communication. Astounding changes in the economic, social, politi-
cal and cultural life of people have also resulted. Technology’s impact
as a boon and a curse is experienced in various spheres. Although
compelled to lag behind technology, law as a normative instrument
and committed to the goal of justice, security, order and morality, has
largely looked to the issue of impact management with the purpose
of continuing the basic civilisational-values by accommodating them
in the new environment.’” While the human rights movement pushes
forward rights of individual, technology pushes forward power of
control over the individual. Although technology may gain initial
upper hand in the context of slumbering sentinel of law, ultimately a
rational thinking about appropriate technology would be providing a
fair balance.” For many of the technological problems that impinge
upon privacy and other human rights, law suggests solutions in tech-
nology itself.*°? Further, since acceleration of technology itself is a prod-
uct of several facilitative factors including legal arrangements, law has
played a facilitative role in enabling the application of new technol-
ogy for varieties of transactions. Thus, in the context of ever grow-
ing technological world, law-society interaction tries to address both
the impact management and facilitative issues. The following analysis
would make this point clear and shed light on social complexities of
technology-based modernity, and law’s response to the same by trying
to restore justice, security, order and morality.
Technology’s impact upon economic process has been far reaching.
Industrialisation has brought new pattern of mass production, sub-
stituted the workforce and created the situation of widespread unem-
ployment. The imbalance arising from saving of labour and conse-
quent decline in purchasing power in the hands of the community had
to be overcome by absorbing the displaced workers in new spheres
into which additional capital had been invested. Legal response in
the direction of avoidance of job losses is manifested in recognition
of fair principles and mechanism about resolving industrial disputes,
10 For example, space technology which is beneficial for mankind is problematically

used for military purpose. See, Bin Cheng, Studies in International Space Law (Clarendon
Press, Oxford 1997) at p. 523.
ty
101 CG, Weeramantry, “The Impact of Technology on Human Rights” UN Universi
moves very slowly,
Lecture, 2005 http://www.unu.edu/unupress/lecture4.html; “Law
ogy is racing
while technology moves with lightning rapidity. The result is that technol
to human rights as
out of legal control. In consequence, there can be grave damage
well.”
102 [bid, at p. 14.
and Environmental Law have shown such features and
3 Copyright Law
potentialities.
eee
Oe
protection of rights of workers to pursue collective bargaining and
safeguarding of minimum wages. Industrial accidents, occupational
diseases, and environmental pollution arising from new technology
have been responded by legislation such as Workmen's Compensation
Act, 1923, Employees State Insurance Act, 1948, Factories Act, 1948, and
Environment (Protection) Act, 1986. The disturbance in market arising
out of cheap goods was countered by manufacturers by their resort
to unfair trade practices like monopoly, combination and restrictive
agreements. Law has responded to it by a policy of dismantling the
unfair practices."** A series of consumer protection laws is traceable
to legal system's effort to face the consequence of economic change
arising from new technology. Degradation of environment because
of pollution and depletion of natural resources is another curse of
technology. Law’s silence, inadequacy or defective model has often
worsened the deterioration. For example, introduction of technology
to drill bore well and lift groundwater in huge quantity and in high
speed had initially expanded area of cultivation. But in the absence
of legal management of ground water exploitation, acquifer mining
began to occur resulting in alarming lowering of water table, drying
up of the springs of neighbour’s land, seepage of saline water, land
slide, increased chances of earthquake and such other consequences.
Old law providing for absolute use theory was given up in few states
by shifting to new models. Lobbying by various corners—by rich and
small farmers and by techuologists and environmentalists—varieties
of legal models, diversity of law arising from federalism and courts’
interference in some cases were experienced in the evolution of legal
framework. The resultant position has been unsatisfactory in many of
the states because of lack of a comprehensive and holistic approach
and continuance of absolute use theory in some form. The develop-
ment shows how technology made conservation of natural resources
problematic, and the mainstream environment protection principles
such as sustainable development and inter-generation equity did not
mould the growth of law." Unless the challenges of technology are
not properly responded by adherence to the basic values of the legal
system and polity, social transformation cannot be put on the tracks of
justice and equity.
Technology’s impact on communication, transportation and biologi-
cal invention has also altered the social and cultural life, and in turn
“Monopolies and Restrictive Trade Practices Act, 1969. Present law is governed by
Consumer Protection Act, 1986 and Competition Act, 2002.
°° P. Ishwara Bhat, “Legal Management of Groundwater for Ensuring Development
with Justice” ILI Souvenir 1994; “Groundwater Law in South India” Journal of Juridical
Science.
demanded for change in the legal framework to suit the requirements
of justice. As Yochai Benkler observes, “Technology interacts with
social, economic and legal frameworks to set the basic ‘affordances’
and constraints of human action over time.” He views that law on
communication and IPR has to address to the issues of freedom and
development. Law of copyrights and trademarks got extended to
give protection to creative works using new technology. Recognition
of copyrights in photography, cinema, sound recording, broadcast-
ing, computer software, digital and other database and the Internet
communications emerged as illustrative of legal response to techno-
logical development.’” Trademark has accommodated domain name
and trade marks in services. These developments rendered justice to
the creative workers. While during the transitional period, there was
some situation of injustice, which was tried to be resolved by exten-
sion of existing law, legal development managed the change in due
course by altering the law. As David Bainbridge writes, “There is no
doubting that the new technology stretches the law which is some-
times slow to react, and our problem has been the manner in which
it has been attempted to adopt existing legal paradigms to deal with
the problems posed by technological development.”"* Strengthening
of IPR’s commitment to the goal of justice has been the fit reply of law
to technology.
Technology has deepened the divide between haves and have-nots,
and between the developed and developing countries. The fruits of
information technology and biotechnology reached only to the devel-
oped countries and to the smaller social segments of developing coun-
tries. As Gillian Youngs observes, “For many others—for example, the
majority of the world’s poorest, who are on the wrong side of the ‘dig-
ital divide’-their lived realities are indirectly affected by the ways in
which uses of, and increased dependencies on, the Internet are trans-
forming economic, political and cultural processes. It is clear that both
these dimensions are equally important...’"°? Since exclusion of them
results in disempowerment, making them more active participants in
handling new technology or conferring alternative benefits to them by
elevation of their economic status is more appropriate. The advances
(2005) 1 Indian
1% Yochai Benkler, “Technology, Law, Freedom and Development”
Journal of Law and Technology 1.
Property
107 P Ishwara Bhat, “Historical Evolution and Development of Intellectual |
A Focus on Some Themes” (2005) 1 Kare Law Journal 1.
Rights:
ion, New Delhi
1 David Bainbridge, Intellectual Property (5th Edn., Pearson Educat :
2002) at p. 190.
Twenty-first century
1 Gillian Youngs, “International Relations as we Enter the e (2nd Edn.,
in Eleonre Kofman and Gillian Youngs, Globalisation: Theory and Practic
Continuum, London 2003) at pp. 3, 11.
BPO Fe a —e ee
engineering have
made in biotechnology, plant breeding and genetic
reap the benefit
enabled the technology holders and intermediaries to
have arisen
keeping the rural poor semi-starved. Similar imbalances
explorations
when the technologically advanced countries monopolise
principle of
of marine resources or of outer space by denigrating the
sea and
common heritage of mankind. International legal regime on
outer space could evolve some noble principles and mechanism for
equitable distribution of resources on the basis of CHM principle. But
the advanced countries like US, by not being signatory to such obli-
gations, have blocked the development of legal regime on fair track.
Unequal competition amidst nations or individuals has been exacer-
bated by technology to the detriment of the vulnerable.
Security is another factor forcefully challenged by technology but
tried to be restored through legal order by aiming at freedom from
fear and freedom from want. Security of the globe as a whole, or of
nations and individuals, is an interconnected issue, which needs to be
addressed by an integrated approach. Modern warfare has used dan-
gerous technology, like atomic bombs, poisonous gas, bacteriological
weapons and other sophisticated instruments threatening the survival
of mankind. Pointing out the constructive and destructive impact of
technology, Jawaharlal Nehru wrote, “One is the progress of coopera-
tion and reason, and the building up of the structure of civilisation;
the other a destructive process, a tearing up of everything, an attempt
by mankind to commit suscide.”""°
International community has responded to these developments
by establishing League of Nations first, and then the United Nations
Organisation with a total commitment to ensure world peace and by
meticulously developing international conventions on humanitarian
law. Initiated by the International Committee of the Red Cross, Geneva
Conventions, 1947 and Vienna Convention on warfare could build an
inspiring legal framework to secure international peace. Realising that
threat to peace comes from lack of development and prevalence of
poverty, illiteracy and ill health, the international institutions like FAO,
WHO, UNESCO have planned and worked for international coopera-
tion in poverty alleviation and developmental activities.
Security at the national level is threatened by cross border terrorism
and internal disruptions. These terrorist activities make use of sophis-
ticated technology as witnessed in the bound blast incidents of New
York (9/11), London, and Mumbai (7/11, 2006 and 11/26, 2008). Legal sys-
tem’s preparedness to prevent, combat and resolve the problem of ter-
rorism has been given great attention, which is manifested in UN reso-
lutions and national legislation. In India, TADA and POTA aimed at
"9 Jawaharlal Nehru, op. cit.

Modernisation, technology and law 697
EISSN, A
LS a
sternly dealing with terrorists. But these legislation rely on
command
and control model without involving the participation of NGOs, civil-
ians and media in facing terrorism through organised public opinion
and social action.
Information security is another factor challenged by modern tech-
nology. With the advent of the Internet and increased dependence
upon it by the state, firms and individuals, the difficulty of safeguard-
ing information boundary has been faced. Transborder data flow, peep
into the e-mail box and manipulation of e-banking business have
shaken the foundations of political and commercial world and of the
domain of individual privacy. Development of data protection princi-
ples has taken place in different jurisdictions to regulate the extent of
surveillance.
Morality is also put to serious test amidst the growth of technology.
Audio-visual representation of women in an indecent manner, internet
pornography and glorification of violence in media have been feared
to cause adverse psychological impact upon children and to threaten
continuation of moral standardsWhen ." the existing law was found
to be inadequate to control these abuses, new national laws began
their efforts to protect decency and morality. The Children’s Online
Privacy Protection Act, 1999 in the US and a provision in Information
Technology Act, 2000 in India, have responded to the problem of cyber
pornography. Various forms of cyber crimes are also dealt in the new
law to restore adherence to minimum moral standards. Protection of
environment against degradation and pollution arising from technol-
ogy is another effort of law to restore natural order.
While legal response in safeguarding the civilisational values even
at the teeth of technology is manifest, the facilitative role of law in
putting technology to use is also clear. Technology has gained much
from Patent law because of the latter’s influence in transfer of technol-
ogy through disclosure of inventions. Subordination of patent right
to public interest, limitation on duration of patent monopoly, exclu-
sion of some inventions from patenting and governmental power of
acquisition of patents have gone a long way in ensuring social benefits
from technological inventions. Along with the growth of new tech-
nology like integrated circuit in semiconductor chips, domain name
and plant breeding, IPR law by enabling their commercial use has
bolstered up use of new technology. When the Internet world was
used for e-commerce, law’s silence on the subject had created vacuum.
ity Press, Oxford

™ Yan Lloyd, Information Technology Law (5th Edn.) Oxford Univers
te |
2008) Chs. 1-5.
(2007) Procee dings
12.Ravi Prakash and Anil Kumar, “Ethics in IT: Global Scenario”
on National Conference on Information Technology.
Modernisation
SR andSLaw
698
a re ie
gy Act,
Highly facilitative law in the form of Information Technolo
e-com-
2000 filled the gap and established an enabling atmosphere for
ent
merce. Recognition of digital signature, administrative arrangem
si-
for authentication of documents, electronic transfer of money, admis
bility of electronic evidence in banking and other transactions, protec-
tion against hacking, cracking and other interferences with computer's
working are some of the legal policies that have facilitated smooth use
of new technology. Various legislation like Telegraphs Act, Electricity
Act, Atomic Energies Act, etc. have streamlined the safeguard meas-
ures in respective technological field.
On the whole, legal response to technology-based modernity has
traversed the path of safeguarding basic social and legal values. The
paramountcy of the concepts like justice, security and morality in
front of technology could be real and effective only if the new legal
arrangement centre-staged these concepts. In order that technology
does not wash out basic social commitments, law’s role becomes cru-
cial. Technology is only a new way of doing things. Its effect on society
is something which law cannot afford to lose sight of. Law serves as
a social shock absorber of technology. This task involves a vigorous
upholding of basic human interests like human rights, justice, envi-
ronmental protection, development, security and morality. Hence a re-
look to the technological law from these perspectives becomes essen-
tial in the course of its analysis.
15.8 Conclusions
“Change, yet continuity” is the outcome of modernisation’s interface
with tradition. Modernisation has sensitised the hierarchical tradi-
tional system through the egalitarian values. Transformative aspira-
tions of the Constitution and human/social side of international law
have reflected the modernisation objectives. Environmental protec-
tion, welfare of people, social justice and human rights values have tra-
ditional outlook and inspiring persuasion to humanise the process of
industrialisation and smoothen the process of transformation. Impact
of modernisation is wide, and touches upon various dimensions of life
ranging from family to international trade. Modernisation’s substan-
tive philosophy and methodology have neither been uniform nor con-
stant. The changing patterns of its policies and persuasions have com-
plicated the task of change management. Liberalisation, Privatisation
and Globalisation are the powerful tools that modernisation built in
recent times, rendering the task of balancing between change and con-
tinuity a difficult task. While law has forged new measures to facilitate
the functioning of these forces, its equal concern for safety, welfare,
Conclusions 699
human rights and environment has been expressed through regula-

tive and protective measures. Law’s preparedness to meet the chal-
lenges iis gathered from its inherent strength built in the value system
in which it evolved.
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CHAPTER 16
ESSE R AEE SPS Saeco herent cana
FAMILY LAW, MODERNISATION AND
SOCIAL TRANSFORMATION
16.1 Family law’s nature and social basis

Family law is a law concerning with formation or dissolution of family
relationships and that of governing the rights and obligations, both
personal and proprietary, of members of the family, that flow from
these relationships.’ By controlling the institutions of marriage, adop-
tion, guardianship and property rights of members, it determines the
very course of human life. It moulds the intra-familial sensitive bonds.
Since love, harmony and affection are the foundations of family life,
finding perfect solutions to the family problems in the legal instru-
ment is a difficult task. State cannot always compel a husband to love
his wife, or a wife her husband or a child its parents.” To the thickets of
sentiments and emotions, traditions and strong mindsets, it can pen-
etrate only minimally. But it can remedy exploitations or injustices in
intra-familial relations. In spite of being law of imperfect obligations,
family law’s significance in keeping the family structure intact, and
family relationships fair, is great from the perspective of social utility.
As a tiny but unique social institution, omnipresent and indispen-
sable, family has the dimensions of human rights, social use, eco-
nomic security, cultural base and moral foundation. When its roots
are deeply spread over these domains and in the community's charac-
ter and feelings, its governance through “living law” of the people is
Foundation Press,
1 Judith Areen, Cases and Materials on Family Law (3rd Edn., The
Westbury 1992) at p. 5. .
2 William Seagle, Family Law: Encyclopaedia of Social Science, Vols. V-V1 at p. 84.
702 n and Social Transf
Family Law, Modernisatioes ormation
ee Te ad ne eas SN es eee A Ss
admirably effective. In such situation, building the blocks of the fam-
ily law through duties rather than rights has yielded results On the
contrary, neglect of duties towards children and women has weakened
the family bonds and inflicted injustice.
“Living law” based on customs and traditions had formed the foun-
dation of family law in India. Because of distinct link with customs
and legal norms initiated and followed by religious community on
this matter, it is with reference to specific religious communities that
family law got developed. In fact, Hindu Law and Mohammedan Law
had originally larger scope to govern; but were later confined to fam-
ily law or personal law.‘ Because of the strong and essential features of
multiculturalism, culture-based family law was destined to be diverse.
During the five millennia of historical development, pluralist tradi-
tions got developed to govern the norms within the family. Religious
communities and ethnic groups converted their social morals relat-
ing to family relation into binding legal norms. The systems of Hindu
Law, Mohammedan Law, Christian Law, Parsi Law and varieties of
tribal laws on family customs? have built up profound diversity in
family law or personal law. Each personal law has sub schools within.
Retention of French and Portugese law relating to family matters in
Pondicherry and Goa, Daman and Diu respectively, added to diversi-
ty.° State enacted laws governing inter-religious marriages and succes-
sion for converts also contributed to the factor of multiplicity?
More than the complex.ty of legal pluralism, the gender bias and
inequity that underlie many of these have been found to be problemat-
ic.’ Their reform and refinements to suit to the needs of modern age and
to conform to the values of human rights and welfare were attempted
* Ibid, at p. 86; Ancient Hindu law laid great amount of emphasis on duties of
members of family. See, Atharvaveda, Vol. III, at pp. 1-3, 6-7 and 30.
* Personal law denotes link between the religion to which person belongs and the
law under which one is governed because of that. See, T.V. Subba Rao and Vijendra
Kumar (Ed.), GCV Subba Rao’s Family Law in India (9th Edn., Gogia & Co., Hyderabad
2007) at p. 36.
° In Madhu Kishwar v. State of Bihar, (1996) 5SCC 125: AIR 1996 SC 1864. K. Ramaswamy,
J. observed, “The empirical study by Anthropologists and Sociologists reveals that the
customary laws of the tribes are not uniform.” Even in respect of intestate succession,
they are not uniform.
® Poonam Pradhan Saxena, Family Law (2nd Edn., Lexis Nexis, Butterworths, New
Delhi 2007) at pp. 3-5.
” Special Marriages Act, 1954; the Indian Succession Act, 1926.
* TV. Subba Rao and V. Kumar writes, “Laws are social digesters and seldom
they are neutral. They have masculine flavour especially with reference to family
laws. Making of laws, administering the laws or resolution of disputes arising out
of implementation of laws are totally considered to be of male bastion and equitable
gestures, if any, towards women come out of men’s sympathies of women’s problems.”
Op. cit. Preface.
Family as foundational social unit
Se eee pean SRESk ere 703
as a part of the process of social transformation. Modernisation as a
concept reflecting rationality, progress, objectivity, equality and indus-
trialisation has its own impact assimilating these modern values in all
social institutions including family in the course of social transforma-
tion. Changes in the social philosophy that has emphasised protec-
tion of human rights of individuals, profound social transformation
in the economic status of the family, modern scientific development
and the growing claims of the modern welfare state have cast their
own impact upon the contours and content of family law? Before dis-
cussing about the process of social transformation through moderni-
sation in this sphere and about the desirability of accommodating its
influence in whatever magnitude, it is appropriate to shed light on the
social context and characteris tics of family.
16.2 Family as foundationa! social unit

Family is an intimate unit c’ society and is a community by itself.°
Marriage, birth and adoption are the sources of its membership. Its
associational nature is brought out in Griswold where it was observed
by the American Supreme Court, “Marriage is a coming together for
better or for worse, hopefully enduring, and intimate to the degree of
being sacred. It is an association that promotes a way of life, not causes,
a harmony in living, not political faith; a bilateral loyalty, not commer-
cial or social projects. Yet it is an association for noble purpose... “'
Marriage is also a sudden exchange of one family for another, and
involves a delicate process of transplantation. It is an institution repre-
sentative of society at large and has similar features and contradictions
like patriarchy and protection. Hindu Law, by treating marriage as a
sacrament (samskara), has attempted at linking religious-moral consid-
erations into the institution of marriage to make it a lasting tie with
mutual obligations for better living and attainment of material and
° W. Friedmann, Law in a Changing Society (Edn., Abridged University Book House,

Delhi 1996) at p. 173.
1 As W. Friedmann puts it, “Of all the social groups within theState, the family
is at once most closely knit, the smallest, and the most enduring.” Law in a Changing
Society (2nd Edn., Abridged, 1964, University Book House, Delhi 1996) at p. a72Z,
Griswold v. Connecticut, 381 US 479 (1965); per Kuldip Singh, J. in Sarla Muadgal
v. Union of India, (1995) 3 SCC 635: AIR 1995 SC 1531 observed, “Marriage is the very
foundation of the civilised society. The relation once formed, the law steps inand binds
the parties to various obligations and liabilities thereunder. Marriage is an institution
Pradhan
in the maintenance of which the public at large is deeply interested.” Poonam
views marriage as
Saxena, “Matrimonial Laws and Gender Justice” (2003) 45 JILI 335
personal and
an important social institution as it accords to women respectability,
permanen cy of relationsh ip and the legality of
financial security, social acceptance,
the union.
704 Family Modernisation
Law, sR eee and Social
en Transformation
GI tec Dae
spiritual happiness. Natural consequence of marriage is begetting of
children. For children, family is the first school of human experience.
It provides a long and continued process of affectionate training and
adaptation to develop the inherited traits and gifts. It offers a medium
for vitalising relationship between parents and children. Adoption,
which is another means for family membership, involves a process of
transplantation and adjustment. Religious and moral obligations try to
build up fair atmosphere. Like a religious body or social organisation,
it carves out an atmosphere for sociability, solidarity and cultivation
of affinity. Cultural values abound in intra-familial relations. Sharing
of joy and sorrow, celebration of festivals and events, and adherence
to morals and religions weld the family members to distinct cultural
pattern. Because of enduring ties and emotive links, family is not like
other associations. It has greater propensity to cherish and treasure
cultural values and religious ideologies. It is a comfortable and warm
social support system when looked from functional viewpoint.
Family is also a refuge, a protective shelter. Home is the bastion of
peace, of repose, and of orderliness and commitment to values. As John
Demos writes, “Here the woman of the family, and the children would
pass most of their hours and days—safe from the grinding pressures
and dark temptations of the world at large; here, too, the man of the
family would retreat periodically for refreshment, renewal and inner
fortification against the dangers he encountered elsewhere.” Domestic
privacy serves both practic ai and emotional needs of family members.
Traditionally, “True Woman’s” (in the Indian context Adarsha Grahini)
central role of developing the cult of Home was matched by “Husband-
father’s” role of family’s breadwinner.? But these statuses within the
family have undergone change in the “Machine Age” and the wom-
an’s role is not confined to home’s hearth. Her entry into workplace
has altered the image of family into an encounter group, an ambitious
team stimulated to venture for economic prosperity.'* Home becomes
a bubbling kettle of lively and mutually enhancing activity in this
process. One difficulty with economic encounter group approach is
that love’s unifying force gets sidelined when the iron of materialism
enters the human soul.
John Demos, “Image of the American Family, Then and Now” in V. Tufte and B.
Myerhoff, (Ed.), Changing Images of the Family (1979), at pp. 43-60 extracted in Judith
Areen, Family Law: Cases and Materials (3rd Edn., Foundation Press, New York 1992) at
p. 88.
Ibid.
'* Ibid, at pp. 90-92.
Human rights dimensions offamily
705
16.3 Human rights dimensions of family
Because of the prominent legal interests based on essential human
qualities and urges, which are projected in the context of family, a
human rights discourse of family law has become a rewarding course
of analysis. With the advent of international human rights instru-
ments, this sort of analysis had made a sound beginning. Article 16(3)
of the Universal Declaration of Human Rights states, “The family is
the natural and fundamental group unit of society and is entitled to
protection by society and the state.” According to Article 16(1), “Men
and women of full age, without any limitation due to race, nationality
or religion, have the right to marry and to found a family. They are
entitled to equal rights as to marriage, during marriage its dissolution.”
Free and full consent of intending spouses of marriage is required in
Article 16(2). Article 10 of International Covenant on Social Economic
and Cultural Rights, 1966 and Article 23 of International Covenant on
Civil and Political Rights, 1966 have reiterated these principles and
obligated the state parties to ensure child protection in case of dis-
solution of marriage. Article 16 of the Convention on Eradication of
Discrimination Against Women, 1979 elaborately lays down the prin-
ciple of equal rights of men and women in the matter of entry into
marriage, consent for marriage, responsibilities during marriage and
at its dissolution, reproductive right, responsibilities with regard to
guardianship, wardship, trusteeship and adoption of children and
in the matter of ownership, acquisition, enjoyment and disposal of
property. Prohibition of child marriage and protection of interests of
children as paramount are also envisaged. Thus, family is an essential
part of any code of human rights, and wishes to preserve personal and
ethical values against the omnipotence of the State."® The ethical con-
siderations of familial responsibilities and the overtones of equality,
liberty and justice in family life arising out of the guaranteed human
rights have common ground and aim at promoting social happiness."
In Gita Hariharan case’, while recognising mother’s equal right in
the matter of legal guardianship of child, the Supreme Court of India
relied on the CEDAW. In Madhu Kishwar'* the dissenting view of K.
Ramaswamy, J. has amply made recourse to CEDAW and other inter-
national instruments to argue that female dependants of the deceased
tribal have equal rights to claim family property. In Danial Latifi® also,
5 W. Friedmann, op. cit. at p. 172.

with
‘© P Ishwara Bhat, “Directive Principles of State Policy and Social Change
75.
Reference to Uniform Civil Code” (1989) 25 Banaras Law Journal
7 Githa Hariharan v. RBI, (1999) 2 SCC 228: AIR 1999 SC 1149.
SC 1864.
18 Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125: AIR 1996
2001 SC 3958.
19 Danial Latifi v. Union ofIndia, (2001) 7 SCC 740: AIR
on
706 Family Law, Modernisation and Social Transformati
(i nn
k of right to
bringing of the elements of human rights to the framewor
lation’s pol-
maintenance was instrumental in construing that the legis
scend the
icy of protecting the divorced Muslim woman should tran
lded
iddat period. The International Human Rights discourse has hera
the
a new mindset in judicial and legislative action and influenced
growth of family law with gender justice and compassion to children.
16.4 Religious and cultural dimensions of family: the problem of

traditionalism versus modernisation
Family law’s religious basis, if any, and its cultural background need
to be addressed for proper comprehension of the issues of reform of
family law, of its initiatives, and impediments. For balancing between
change and continuity in the process of social transformation in this
sphere, the problem of conflict between tradition and modernity
should be looked from the perspective of post-modernity thinking.
As has been noted in Chapter 2, primarily it is the communitarian
sense of righteousness (rta) that provided genetic material for the evo-
lution of family law. Dharma obligated everyman desiring for suitable
fruit for his action to pursue only right conduct and direct his life in
consequence. Since religious duties and moral norms had also similar
persuasions, in the matter of intra-familial relations, such obligations
had interconnected multiple bases. The smritikars attempted at blend-
ing of religion and ethics vzith law for projecting a philosophy of life
that believed in purity of internal thought and external relation. Derrett
views that obscurity of boundary between religious duty and custom-
ary obligation does not cause harm and that force of sanction behind
them determine their legitimacy. He observes, “Rules that have reli-
gious foundation are... often neglected, and that without public outcry.
Rules which have no foundation are upheld on the formal ground that
they are sanctioned by religion. The liaison between religion and law
is not close.””° The proposition that personal law is essentially civil in
nature is widely accepted. In Muslim personal law also mixing of reli-
gious and legal duties can be found. While Koran authoritatively lays
down the ideal path of family and social life, supplementing of it by
sources like sunna (tradition), ijma (opinions of eminent legal scholars),
etc. point out clear social basis for Muslim Law. Parsi and Christian
personal law also make use of traditions and customs.” Protection of
indigenous personal laws of tribal people is contemplated in Fifth and
Sixth Schedules of the Constitution. Governor’s power to exclude the
0 J.D.M. Derrett, Religion, Law and the State in India (Faber and Faber, London 1968)
at pp. 117-18.
*! Especially in the form and procedure of marriage.
Religi
SAS ous and cultural dimensions offamily
Sa Sa DO LE 707
operation of central statutes upon the tribals in the tribal
area, and
autonomy of Tribal Advisory Council regarding social customs on
marriage and succession point out continuity of indigenous tradi-
tion.* This customary law, which the tribal people cherish with great
pride and unwilling to part with, is product of ethnic identity and dis-
tinct cultural consciousness. Each tribe has its own distinct custom,
although they have common features. The tribal community consti-
tutes 8 per cent of India’s population.
Thus, family law’s traditional basis and social dimension is a reality.
Longevity of marital relation, affectionate treatment of family mem-
bers, concerted actions in mundane and spiritual matters and readi-
ness to help in times of difficulty are the gifts of tradition. But tradition
has also unpleasant features like patriarchic superiority and gender
discrimination. The attempt of modernisation in bringing equality
amidst family members to set right the anomalies has sometimes gone
excessively, challenging other features of tradition. Cutting the roots
of tradition in the name of modernity has caused imbalance between
continuity and change. Going beyond tradition and modernity, the
post-modernist thinking challenges modernisation’s grand scheme
of truth, reason and progress on the ground that it shatters the soci-
ety’s confidence in indigenous and long-followed values.” As a reac-
tion to modernising legal framework, initiated by colonial rule and
continued by post-colonial republic, resilience of past tradition sans
perversion has been supported by post modern analytical approach.
Werner Menski’s highly incisive analysis of the growth of Hindu Law
during last few decades has convincingly disclosed the impossibil-
ity of legislating away fundamental features of Hindu Law ideology.
Other personal laws also exhibit their culture-specific foundations.
Rendering situation-sensitive justice in culture-specific context, by
continuing the good elements of tradition and overcoming the defects
of modernisation has been the principal strategy of post-modernist
approach.” Indian legal development has, by and large, traversed this
path. The task of social transformation that law has shouldered in this
sphere has distinct features about change-continuity relationship. The
debate on Uniform Civil Code has yielded space for thinking about
upgrading the components of justice, fair play and welfare within each
personal law system. For understanding the complexities involved in
22 See supra, Ch. 10, Ss. 5, 6, 10. nee
Universit y
2 See, Werner Menski, Hindu Law: Beyond Tradition and Modernity (Oxford
Press, New Delhi 2003). <8 nia #5
2% Ibid, at p. 24 he observes that in view of impossibility of distinguishing religion
le
from law in the context of ideals of dharma abolition of Hindu Law is an impossib
task.
> bid.
Law, Moder
Family Ahh nisationht Transformation
and SocialnS
708 aa kn es e SS
sa
of family
the method, direction and limits of change in the domain
may be
law, a brief historical exposition of family law's cultural base
attempted.
16.4.1. Traditional Hindu family and organic growth of law

Ancient Hindu concept of family was built on the notion of collective
duties and ideals of good life. Rigveda inspired the marrying couples to
unite in thoughts, duties and ideals through the bond of love and radi-
ance of mutual company. Atharvaveda appealed to members of family:
“Like-heartedness, like-mindedness, non-hostility do I make for you;
do ye show affection, the one towards the other, as the inviolable cow
towards her calf when born. Be the son submissive to the father, like-
minded with the mother; let the wife speak to the husband words full of
honey, beneficent. Let not brother hate brother, nor sister sister; becom-
ing accordant, of like courses, speaks ye words auspiciously. Your drink-
ing be the same, in common your share of food; in the same harness do I
join you together; worship ye Agni united, like spokes about a nave.’?6
The centrality of love and affection in family relations emphasised in
this approach has given rise to duties whose faithful performance by
every member enhances the ambience of family life. Linking it to com-
mon worship has provided strong cultural base for family relation-
ships.
Family property constitted the nucleus of family’s sustenance,
economic development, spiritual sacrifice and welfare.?7 While there
is a view that village community with common property resource
was anterior to Hindu family”, more convincing view is that which
reflects coexistence of both joint family and the village community.
Rule of survivorship laid down by Mitakshara is based on right by birth
and the concept of co-ownership.”? Equality of a son’s right to that of
father signified continuation of father’s life in that of son’s. The role of
karta exemplifies family’s unity. According to Professor B.N. Sampath,
“Since the joint family system was rooted in natural love and affection,
spirit of sacrifice and sympathy for each other’s woes, the karta was
assumed to guide the affairs of the family with a view to secure the
6 Atharvaveda, II-1-3, 6-7, 30. About the analysis of family as a unit of economic,
cultural, social and political life, see, Yogendra Singh, Modernisation of Indian Tradition,
(Rawat Publications, Jaipur 1999) at p. 174.
” Such property need not have been immovable property or an asset of appreciable
value as interpreted in Shadi Lal v. Lal Bahadur, AIR 1933 PC 85; Janakiram Chetty v.
Nagamony Mudaliar, ILR (1926) 49 Mad 98 at pp. 115-16.
8 Karl Marx, On India at p. 391.
29 Mitakshara, i-1-23, 27, 33; V-5-9-10.
Religious and cultural dimensions offamily
F e ARREARS 709
welfare of all.”° The towering status of karta was matched by his duty
of honesty and moral commitment to the ideas of justice. The concept
offamily ownership of property projects collectivity desired of a social
life" As Trailokyanath Mitra points out, “The family property was
constituted by families and not individuals. Each family had a.sort
of corporate existence and perpetual succession. The family property
was held in perpetuity by the family, and the members of the family
were entitled to maintenance out of family property.”* The right of
every member of the family including female dependents to live out
of maintenance from family property has a commendable dimension
of dignified life based on collective duty Since the very concept of
property is linked to avoidance of unjust enrichment and undeserved
suffering, and is made to conform to the goal of dharma, the family
law on partition, succession and maintenance had to reflect the innate
commitment>4
The values of collectivism, notions of affectionate filial relations
and the ideals to eschew unjust enrichment and undeserved misery
were carried forward in shastrik texts as core principles. Family bonds
were made strong by religious practice. Continuation of nuptial fire
in kitchen and in sacrifice symbolised joint discharge of familial and
religious duties by husband and wife in their daily life. The concept
of sapinda reflected both religious and biological connections. Respect
to elders with a sense of filial piety and expectations of their blessings,
whether in the form of moral support or economic help, had united
religious sentiments and earthly feelings in inter-generation relations.
The rituals of datta homam and saptapadi at the threshold of new rela-
tionships had both religious and legal dimensions as they establish
solemnity and mindset of divine initiation for enduring relations. The
Smriti approach of prescription of religious duties, imposition of legal
obligations and requirement of expiation for deviance from both estab-
lish an integrated approach. Dharma as a law for righteous conduct
could hardly be compartmentalised from religion. The pro-woman
reforms that Mitakshara interpretation initiated was in reaction to the
»” B.N. Sampath, “The Joint Hindu Family-Retrospect and Prospect” Banaras Law
Journal, 35 at pp. 47-48.
31 1.S. Pawate, at p. 25. .
&
2 Trailokyanath Mitra, The Law relating to the Hindu Widow TLL (Thacker, Spink
Co., Calcutta 1881) at p. 440.
PV. Kane,
33 Manu, III-72 & IV-251; Mitakshara, 1-224 and 1-175; Baudh Dh S, II-2,48;
at pp. 803-05.
and undeserved misery
4 P Ishwara Bhat, “Protection against unjust enrichment
(2006) Journal of Indian
as the essence of property rights jurisprudence in Mitakshara”
Law Institute.
710 Family Law, Modernisation and Social Transformation
SEE I S ee
social experience about marginalising of woman and realising of the
need to elevate her position both spiritually and materially.
One distinct feature of Hindu Law is that it is not some monolithic
framework “laid down” by a single authority. Smritis were several and
were reflections on ideals of life visualised in Sruti and expressions of
customary practices subject to author’s perception. The geographical
diversity of Hindu Law emerging from different schools of law gov-
erning in different parts of India reflect the component of local social
choice and communitarian acceptance in the matter of family law.
The fact that some of the aspects relating to family law, even stated in
Smritis, have become obsolete in course of time points out superiority
of the general will of the community in moulding the norms relating
to intra-familial relations. For example, confining the legal status of
son only to aurasa putra or son born out of lawfully wed marriage
and to adopted son was the product of social choice by pushing other
forms of sons—kanina, gudhaja, shodhaja, etc.—into the oblivion of
obsoleteness.» Relating to forms of marriage? mother’s right to share
in coparcenery property” and extraordinary right of eldest son’, etc.,
rule of obsoleteness has been invoked and applied. Although the fac-
tor of gender bias was playing its role in the process in some situations,
the social self-determination about personal law was clear in these
developments.
Another feature of Hindu Law is that its basic principles relating
to purpose of family life a‘«a methods of human salvation are linked
to religion. Enduring spousal relationship, sense of filial piety, expec-
tation about continuation of progeny for attaining spiritual benefit,
and accommodation of philanthropy for individual and social good
have solid supports of religion. These are reflected in Vedic and
Vedantic literature. Collectivist ideology and liberal humanism were
strong points of this tradition. Smritikaras like Manu, Yajnavalkya,
Narada and others not only emphasised these ideals but also elabo-
rately and holistically treated human behaviour within and outside
the family by exposition of principles governing achara, vyavahara
and prayaschita which meant comprehensive code of conduct for good
life, civil and criminal legal regime determining the rights and obli-
gations of persons, and individual penance for making good one’s
deviance from right path. Blended with morals, social psychology
*° Alladi Kuppuswami, Mayne’s Treatise on Hindu Law and Usage (Bharat Law House,
New Delhi 1986) at pp. 92-102.
°° Ibid, at p. 107.
*” P. Ishwara Bhat, “Hindu Mother’s Right to Share in the Coparcenery Property: A
Critique of South Indian Practice” (1985) 9 The Academy Law Review 187-200.
* The jyeshtabhaga concept has become desuetude. See, P. Ishwara Bhat, “A Critical
Appraisal of the Hindu Gains of Learning Act” (1985) 27 JILI 578 at p. 589.
Religious and cultural dimensions offamily 711
and pragmatic economics, their exposition of family law was reflect-
ing community’s culture, concern for healthy social life and ideals
of home. Commentaries on Smritis, written after several centuries of
social experience, carried forward the growth of law. The individualis-
tic ethics of Buddhism, the popularly spreading advaitha philosophy of
Shri Sankaracharya on individual soul's salvation, the growing social
dissatisfaction about undue controls of patriarchy and loosening ties
of collectivism created an atmosphere conducive for change towards
recognition of at least essential individual rights within the family,
Most important of such recognition is traceable in Vijnaneswara’s
Mitakshara written in 12th century AD Some of the revolutionary con-
cepts projected in this work include scientific explanation of sapinda
relationship, avoidance of unjust enrichment and undeserved misery
as the basis of property right, recognition of son’s birth right in fam-
ily property that could be enforced through partition, and elaborate
delineation of women’s property in coparcenery, in succession and
in the form of stridhan.*° Social acceptance of Mitakshara was far and
wide as it was received as the authentic law in all parts of India except
Bengal where Jimutavahana’s Dayabhaga, a commentary on Narada
Smriti prevailed. Again, Mitakshara was subject to regional influences
of its sub-commentaries like Smritichandrika, Saraswativilasa etc., which
gave regionally acceptable distinct interpretations to Mitakshara. The
above development shows that the process of juristic law finding was
one that involved an informal but creative social dialogue. As Werner
Menski analyses, in spite of remarkable fluidity, internal diversity and
flexibility, Hindu Law was held together by an identifiable underly-
ing traditional conceptual framework." The force of self-rectification
through application of social process and value-conscious ideology
was operating from within.
The third feature is that plurality of tradition and customs has
allowed adequate regional variations depending upon local demands
and preferences. In a vast country like India, legal pluralism has
become indispensable. There are two main schools of Hindu Law:
Mitakshara and Dayabhaga. The latter prevails in Bengal whereas the
former is applicable in other parts of India. The four sub-divisions of
and
Mitakshara school include Benares, the Mithila, the Maharashtra
the Dravidian school.# The variances amidst these schools range from
the Dravidian
slight differences to drastic deviations. For example,
and undeserved misery

3” P Ishwara Bhat, “Protection against unjust enrichment
shara” (2006) JILI.
as the essence of property rights jurisprudence in Mitak
49 Ibid.
41 Werner Menski, op. cit., at p. 16.
#2 Alladi Kuppuswami, op. cit., at pp. 34-39.
rEWd Family Law, Moderniisatio n and Social Transformati on
i Pe TON SENE T RSS re
school guided by Smritichandrika has gone for highly restrictive inter-
pretation of woman’s property right. Parasara Madhaviya has preferred
equal rights of parents in succession to the property of deceased son.
Dayabhaga rejects the idea of property right by birth; relies on principle
of religious efficacy in determining the order of succession; recognises
quasi-several rights of brothers; and protects the right of widow in
undivided family. Mitakshara has contrary principles on these points.
Local community’s distinct approach in consonance with local cus-
toms has given rise to this diversity. Thus, organic growth of law was
possible because of local community’s involvement in the norm mak-
ing process and in its compliance.
16.4.2 Traditional Mohammedan family and organic growth of law

Just like Hindu Law was rooted in Hindu cultural and social prac-
tices, Mohammedan Law, which was introduced during the regime
of Muslim rulers in India during medieval period amidst members of
Muslim community, was based on religious scripture viz. Holy Koran
and on cultural practices. Koran is believed to have divine origin due
to revelation of it to the Prophet by Gabriel. It was compiled from fol-
lowers’ memory to enlighten themselves and their progeny to know
about the truth and right and to dissuade from falsehood and wrong.
A small portion of it contains legal verses.*? This was supplemented by
Sunnah i.e. the findings on ~aths and practices of the Prophet. Together,
they constituted the primary source of the Shariat or Islamic Law.* In
course of time, ijma or consensus of the jurists became an additional
source. In evolving ma, “one’s own exertions” (ijtihad) played promi-
nent role. Application of distinct principles in interpreting Shariat—
equity, public interest, sound precedent—by different Khalifs led to
different schools (Hanafi, Maliki etc.) amidst Sunnis.* Shias, another
section of Muslims, believed in supremacy of Imam as lawgiver.
Inamati also got split in course of time. Another source of law is Qiya or
reasoning by analogy. Fatwa, though not a source of law, but opinions
of judges and muftis in the light of facts, also contributed to enrich-
ment of legal principles. These historical factors about diversity within
Muslim law point out communitarian and local influences to accom-
modate the needs of changing times.** When desire for reform was
stronger than resistance to it, the doctrine (taglid) that “Islam reformed
* Samiul Hasan, Philanthropy and Social Justice in Islam (AS Noordeen, Kuala
Lumpur 2007) at p. 22.
“ M. Hidayatullah and Arshad Hidayatullah, Mulla Principles ofMahomedan Law,
(19th Edn., N.M. Tripathi (P) Ltd., Bombay 2001) at p. 15.
*® Ibid, at pp. 17-19.
** The pluralistic feature is elaborately dealt by Samiul Hasan op. cit.
Religious and cultural dimensions offamily
e e 713
is Islam no longer” was sidelined and reform was favoured in Islami
c
countries even during medieval period. Thus, diversity, adherence
to
tradition and openness to peripheral changes became the hallmark of
Mohammedan Law.
Introduction of Mohammedan Law in medieval India under the
Muslim rule brought a change in the state law and its administration.
While the position of non-Muslims had been subdued in their relation
with the state, continuation of Hindu Law amidst Hindus was allowed.
The co-existence of different personal laws reflected sense of tolerance
and participation of communities in culture-specific atmosphere.
16.4.3 The pre-Constitution policy on family laws in India

With the dawn ofBritish colonial regime, there was recognition of
both Hindu Law and Mohammedan Law applicable amidst respec-
tive communities.” The Act of Settlement, 1781 reiterated this position.
Pluralism continued both as a matter of state policy and social neces-
sity. In the House of Commons, Lord Macaulay spoke about the policy
of the British in the course of codification of Indian law, “We do not
mean that all the people of India should live under the same law: far
from it. We know how desirable that object is but we also know that
it is unattainable end. Our principle is simply this: Uniformity wher-
ever you can have it, Diversity when you must have it, but in all cases
Certainty.”
Translation of Hindu shastrik texts, Koran and other literature into
English and ascertainment of personal'law throtgh research and pub-
lication contributed to the growth of family law during the @olonial
period, and helped its application by judiciary. Use of the services of
pundits and kazis was also resorted to. It has been commented by schol-
ars that the growth of Iaw was subjective and that law of precedents
had rigidified the personal law.” There were also efforts to reform per-
sonal law when the law-makers found reasons for reform compelling,
as in the case of Hindu Widow Remarriage Act, 1856, and the Caste
Disabilities Removal Act, 1850. But a low-key approach was followed
in the matter of prohibiting child marriage, in the beginning. When
47 Warren Hastings initiated such legal measure in 1772: R. 23, stating, “Tn alllsuits
regarding inheritance, marriage, caste and other religious usages and institutions, the
law of the Koran in respect to Mohammedans and the law of Shastras with respect to
Gentoos shall be invariably adhered to.”
pp. 531-33. V.D.
48 See, Hansard, House of Commons Debate, Vol. III, Series, Vol. XIX, at
Eastern
Kulshreshta’s Landmarks in Indian Legal and Constitutional History (8th Edn.,
Book Co., Lucknow 2005) at p. 251. }
State in India (Faber &
49 See supra, Ch. 2; see also, J.D.M. Derrett, Religion, Law and
op. cit., at p. 168.
Faber, London 1968) at p. 239; see also, Werner Menski,
Family Law, Moder tion
nisation and Social Transformaes
714 Be Fe ee
as in the
the demand for reform came from the specific communities,
Right to
case of Hindu Gains of Learning Act, 1930°, Hindu Women’s
n
Property Act, 1937 and the Muslim Personal Law (Shariat) Applicatio
Act, 1937, laws were enacted to satisfy the social demand. The Caste
Disabilities Removal Act set aside the rules of Hindu Law that penal-
ised the renunciation of religion or exclusion from caste. The Act struck
at the economic sanctions available in Hindu Law and at the collective
joint family’s power over its members," But it was one-sided as it ena-
bled the convert to succeed to the property of Hindu relatives and not
vice versa. This Act and the Native Converts Marriage Dissolution Act,
1866 were passed under the pressure of Christian missionaries who
were interested in proselytisation.”
Even in the busy era 6f codification of criminal law, mercantile law
and procedural law, the colonial government found the task of codify-
ing personal law as not acceptable. The Second Law Commission in
1855 observed, “The Hindu Law and Mohammedan Law derive their
‘authority respectively from the Hindu and Mohammedan religions.
It follows that, as.a British legislature cannot make Mohammedan or
Hindu religion, so neither can it make Mohammedan or Hindu Law...
-We think it clear that it is not advisable to any enactment which would
stand on such a footing.”
The native attitude for far reaching statutory reform was not enthu-
siastic. Gandhiji and others. regarded self-governance for individual's
better conduct, rather than state’s regimentation, as the essence of
swaraj>4 The Government rejected the idea of comprehensive Hindu
Law code in 1920s. The complexity of case law made the text book writ-
ers to suggest codification of law in 1930s. The Hindu Women’s Rights
to Property Act, 1937 brought serious alterations to Mitakshara law
and created a number of difficulties and ambiguities in interpretation.
The changes were sporadic, piecemeal and uncoordinated, and it was
thought that their effect upon other parts of the law was to be set right
by codification. In order to resolve conflicts of authorities and bring cer-
tainty and simplicity, there were suggestions in academic writings for
codification of Hindu Law. The mood of the Hindu intelligentsia was
favorable to change. As MLP. Jain viewed, “The old instrumentalities
*° See P. Ishwara Bhat, “A Critical Appraisal of the Hindu Gains of Learning Act,
1930” (1985) 27 JILI 578.
*! MLP. Jain, Outlines of Indian Legal History (5th Edn., Wadhwa & Co., Nagpur 1999)
at p. 624 citing Rudolph and Rudolph.
2 Ibid, at p. 624.
8 Ibid, at p. 494.
m M.K. Gandhi, Hind Swaraj at p. 6. Tarachand, History of the Freedom Movement in
India (Publications Division.in the name of Government of India Publisher (Ministry
of Indormation and Broadcasting), New Delhi 1992) at pp. 209-10.
Religious
RE and cultur al
RRS dimen sions
ORE ALLOAoffamil y
Sesh PRN 715
of growth, the processes of interpretation and assimilation
of custom
with traditional written text, ceased to be available with the
introduc-
tion of the British system of justice. The Hindu society was undergo-
ing, vast socio-economic changes; new ideas, new values of life, new
modes of living were continually affecting the society and imparting
to it a new tinge and changed outlook. In the absence of law keeping
pace with the change, a gap, a dichotomy, had arisen between law and
society.”
In 1941, the Government constituted Hindu Law Committee under
the chairmanship of B.N. Rau. The Committee suggested that the wis-
est way for bringing fundamental changes was to enact a code rather
than through isolated Acts, and that in view of the absence of crea-
tive role of commentators and judges, the main agency for altering the
law in future in accordance with changing needs of the community
was legislature>*° The Committee was not in favour of abolition of
diverse schools; but was prepared to make judicious selection of the
best elements of each and keeping the distinctive character of Hindu
Law. Another Committee was constituted (1944) to draft the Hindu
code. The draft report of the Committee was extensively published for
eliciting public opinion. Although met with hostility from orthodox
sections, the Committee viewed that continuous adaptability was the
essence of the Hindu civilisation and that a simplified exposition of
Hindu Law adhering to equality before the law and non-discrimina-
tion on grounds of sex and caste would usher in desirable changes.
The final report was submitted to Government in February 1947-7 It
recognised the existence of certain measure of uniformity in Hindu
Law in different provinces, and the feasibility of the idea of common
code. To make the Code palatable to people, piecemeal legislation was
suggested, although codification at a stretch was most desirable. The
suggested amendments included introduction of monogamy, introduc-
tion of divorce, removal of barriers to inter-caste marriage, upgrading
of woman’s limited estate to absolute estate, introduction of daughters’
simultaneous succession with the son to the father’s estate, and aboli-
tion of Mitakshara joint family system. The draft Code was introduced
in Constituent Assembly acting as the provisional Parliament of India
in the form of a Bill in 1947. It was referred to Select Committee chaired
by B.R. Ambedkar. The Committee’s report, published in 1948, was
taken up afresh after the election. The changes contemplated were
drastic, and aimed at social transformation.
5 MP. Jain, op. cit., at p. 635.

% Ibid, at p. 637.
7 Ibid, at p. 638.
716 Family Law, Modernisation and Social
. Transformation
16.5 Uniform civil code, the constitutional policy

During the making of the Constitution, the overwhelming view was
of bringing large-scale reforms in personal laws in order to confer bet-
ter protectiontowomen. But there was suggestion by some members
belonging to Muslim community that the provision on Uniform Civil
Code should be qualified by a provision notto compel any community
from giving up its own personal law. Mohamad Ismail Sahib consid-
ered personal law as a part of the way of life, interference with which
tantamount to interference with the way of life of people followed
for generations>**Naziruddin Ahmad regarded law on marriage and
succession as associated with religious injunctions and suggested for
gradual changes. Pocker Sahib Bahadur and Hussain Imam referred
to the existence of diversity of personal law not only amidst Hindus
and Muslims but also amidst vast number of backward classes of peo-
ple (STs) living in scheduled areas, noted different degrees of socio-
economic developments amidst different communities and suspected
about efficacy of law bringing uniformity by a stroke of pen? K.M.
Munshi countered these arguments by stating that by consolidating
and unifying personal law, the way of life of the whole country would
get uniform character with secular outlook. He considered transcend-
ing of the religious practices and the Smriti injunctions as essential for
an advancing society. He said:
“Religion must be restr’.ied to spheres which legitimately appertain
to religion, and the rest of the life must be regulated, unified and modi-
fied in such a manner that we may evolve, as early as possible a strong
nation and consolidated nation. Our first problem and the most impor-
tant problem is to produce national unity in this country.”
He thought that UCC would bring emotional unity and uphold the
national image as a progressive society. Alladi Krishnaswami Ayyar
regarded UCC as aiming at amity by working out common measure
of agreement in the context of growth of different personal laws influ-
encing one another. He said: | Pig
“...no system can be self-contained, if it is to have in it the elements
of growth. Our ancients did not think of a unified nation to be welded
together into a democratic whole. There is no use clinging always to the
past. We are departing from the past in regard to an important particu-
lar, namely, we want the whole India to be welded and united together
as a single nation.”
** CAD, Vol. VII, 23-11-1948, at p. 540.

® Ibid, at pp. 544-46.
* Ibid, at p. 548.
*! Ibid, at p. 549.
Legislative efforts
er 717
He recognised mutual influence between cultures and tried
to dispel
distrust by stating, “If there is a determined opposition, or if there
is a
strong opposition by any section of the community, it would be unwi
se
on the part of the legislators of this country to attempt to ignore it.” Dr.
B.R. Ambedkar added that the proposed policy was directory and that
the future Parliament might provide for voluntary acceptance of the
Code by the people in order to apply it in the beginning. He pointed
out how the Muslim community in north Malabar followed the Hindu
customs.”
Uniformity for the sake of national unity rather than distinctly for
promoting gender justice, and non-imposition Uniform Civil Code
upon any unwilling community through iron hand of law were the
major thrusts of discussion in the Constituent Assembly. Inherent dif-
ficulties in bulldozing of diversity were known to the Constitution
Makers. The incorporated provision, Article 44 states, “The State shall
endeavour to secure for the citizens an Uniform Civil Code through-
out the territory of India.”
16.6 Legislative efforts

At the commencement of the Constitution, family laws had anomalous
features. Permission for polygamy and child marriage, prohibition on
inter-caste marriage and widow remarriage, absence of divorce and
other matrimonial remedies, denial of womans right to share in the
family property or in the property of the deceased persons and male
dominance in matters like custody, guardianship and adoption of
children caused unjust conditions in the Hindu social order. Muslim
personal law had_incorporated_ still more rigid and unfair usages
like polygamy, unilateral divorce, non-maintenance of divorced wife
and gender discrimination in matters of succession. Christian Law
on divorce had rigid provisions. Jawaharlal Nehru regarded that the
British policy of non-intervention in matters of personal Law and
mechanical interpretation by judiciary left intact the petrified social
rules. He condemned the efforts to justify and continue them in the
name of religion. He observed, “Our laws,.our customs fall heavily on
the women folk...and. men happen to enjoy the dominant position.”®
The task of rationalising and modernising Hindu Law was taken
up by Parliament after the first election. Instead of passing the Hindu
code in a single statute, four enactments were made covering the
subjects marriage, succession, maintenance, adoption, minority and
® Ibid, at p. 551. se BEA.

about
® Nehru’s Speeches, 16-9-1955, III at p. 444 in Lok Sabha while discussing
divorce.
guardianship. These Acts apply to Jains, Buddhists, Sikhs and Hindus

of all denominations and castes. Since populations of these commu-
nities constitute substantive section (more than 80 per cent) of the
Indian society, there is partial fulfilment of constitutional objective.
The Hindu Marriage Act, 1955 introduced monogamy; permitted inter-
caste marriage; allowed divorce on specified grounds; provided matri-
monial remedies like restitution of conjugal rights and judicial separa-
‘tion; and conferred post-divorce relief. It was drastically overhauled in
1976 by introductio ivorce by mutual consent and wife’s option at
puberty to repudiate marriage. The Hindu Succession Act, 1956 has a
cardinal policy of equality of sexes in the matter ofintestate succession,
conversion of limited-estaté of woman to absolute one and continuation
of theconcept of joint family. Extension of the right to adopt child to
women, requirement of wife’s consent for adoption when the husband
initiates adoption process, protection of the interests of adopted child
and dispensing with the ritual of datta homam and secularisation of the
adoption process are the reforms introduced by the Hindu Adoption
and Maintenance Act, 1956. Detailed recognition of rightsof depénd-
ents and wifeto claim maintenance has also been made under this
Act. Wife’s rightto claim separate residence.along.with maintenance is
also recognised. Widowed daughter-in-law is entitled to maintenance
from the father in law. The Hindu Minority and Guardianship Act,
1956 has codified the existing law along with recognition of mother’s
position and upholding of welfare of child as paramount consideration
to which the guardian’s right shall also be subordinate. As a conse-
quence of these enactments the need to refer to the religious texts for
exposition of law got subsided.
Compared ‘to the above development, the process of reform of
Muslim Law has suffered a setback because of lack ofMuslim
com-
munity’s preparedness for drastic change and their distrust about leg-
islature.-Central and State Government statutes on Wakf culminating
in the Wakf Act of 1954 and its revised piece in 1995 point out the
instances of legislative intervention on Muslim personal law. Section
125 of the Criminal Procedure Code, 1973 and its predecessor, provid-
ing for maintenance of wives and other dependents through ‘a secu-
lar framework, were applicable upon Muslim community also. The
Muslim Women (Protection of Rights on Divorce) Act, 1986 modified
its application insofar as divorced women are considered. However,
regarding other obligations Section 125 is still applicable. The Special
Marriage Act, 1954 governing the relations of spouses irrespective of
religious affiliation and the far-reaching changes brought to the Indian
Divorce Act in 2001 have made significant contribution in eliminating
the differences amidst various matrimonial laws.
From Shah Bano to Danial Latifi and beyond 719
ORES
Saal SRS i a
16.7 From Shah Bano to Danial Latifi and beyond: feminist strides
in maintenance law
Ancient Indian law approached the issue of maintenance of members
of family from the perspective of duty.“ According to Mitakshara, aged
parents, wife and minor children are to be maintained even by using
self-acquired property. The Hindu Adoption and Maintenance Act,
1956 incorporates this principle under Sections 18 and 20. All depend-
ents of a deceased person are entitled to maintenance from his prop-
erty (Section 22). Whether the wife is living with the husband, or lives
separately in justified circumstances or under Court's order of judi-
cial separation or divorce, she is entitled to right to maintenance from
her husband. By disabling unchaste wife from claiming maintenance
[Section 18(3)], social morality is allowed for continuation. Although
cohabitation with husband disqualifies her from right to maintenance,
courts have held that stray instances of sexual intercourse with the
husband do not deprive her right. While the traditional law imposed
duty to maintain only upon father, the statutory law imposes that
duty upon both the parents [Section 20(2)]. There is a need for applica-
tion of human rights approach regarding recognition of parental duty
towards maintenance of adult married daughter unable to maintain
herself by reason of any physical or mental abnormality, since the
present law does not provide for the same.”
Under Muslim Law, the duty to maintain children, parents and
grandparents is cast upon Muslim males. Husband’s duty to maintain
his faithful wife during the subsistence of marriage is clearly recog-
nised. A divorced Muslim wife is entitled to maintenance only during
iddat period.
Section 125 of the Criminal Procedure Code, 1973 imposes obliga-
tion w on everyy person having sufficient means, to maintain his child,
SS neA
fe, ffather or mother; and in case he neglects to do so, it authorises

wife,
the Magistrate to order payment_of Mairitenance allowance to the
applicant.* The provision is asecular welfare measure enacted with
the intention of avoiding moral and material abandonment, uniformly
child must be
6 Manu stated, “The aged parents, a virtuous wife and an infant
cited by Mitakshara,
maintained even by doing hundred misdeeds.” Manu, VIII-389;
II-175. .
6 Alladi Kuppuswami, op. cit., at p. 1008.
6 PS Muthukrishna v. Meenakshi Ammal, (1958) 2 MLJ 82.
(2003) 45 JILI 388 at p. 393.
67 Kusum, “Marital-status based Discrimination”
there are criticisms that the
6 Similar obligation is not imposed upon wife. Hence,
law is paternalistic.
720 n and Social Transformation
Family Law, ModernisatioASHES
i ee ieee hs, ea NEE NS SS
applicable to all without religious distinction. In Bai Tahira v. Ali Hussain
Fidaalli Chothia®, V.R. Krishna lyer, J. observed:
“Welfare laws must be so read as to be effective delivery systems of
the salutary objects sought to be served by the Legislature and when the
beneficiaries are the weaker sections, like destitute women, the spirit of
Article 15(3) of the Constitution must belight the meaning of the section.
The Constitution is a pervasive omnipresence brooding over the mean-
ing and transforming the values of every measure. So, Section 125 and
sister clauses must receive a compassionate expansion of sense that the
words used permit.”
Accordingly, he held that the whole scheme of Section 127(3)(b), which
operates as exception to Section 125 is manifestly to recognise the sub-
stitute maintenance arrangement by lump sum payment organised by
the custom of the community or the personal law of the parties. There
must be a rational relation between the sum so paid and its poten-
tial as provision for maintenance: to interpret otherwise is to stultify
the project. Law is dynamic and its meaning cannot be pedantic but
purposeful, he viewed. He described the provision as a social justice
measure in Ramesh Chander case. He said, “The brooding presence of
the constitutional empathy for the weaker sections like women and
children must inform interpretation if it is to have social relevance.””°
In a landmark case,.Shah.Bano7",.the Supreme Court examined the
question whether..the..obligation-of~Muslim=husband“towards his
divorced wife would be co itined to the period of iddat in accordance
with the Muslim customary
law or whether Section 125 would prevail
over personal law and confer the right during the whole period of des-
tiftition. The Court held that Section 125 was secular welfare measure
operating independent of traditional law for assisting persons who
are not capable of maintaining themselves/? and that it conformed to
the Holy Koran (Aiyat 241) which stated, “For divorced women also
there shall be provision according to what is fair. This is an obliga-
tion binding on the righteous.” The Court
also rejected the argument
that payment of Mehr was absolving the husband from the duty to
pay maintenance. Referring to the parliamentary debate assuring non-
(1979) 2 SCC 316: AIR 1972 SC 362.
” Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70: 1978 SCC (Cri) 508: AIR
1978 SC 1807 at p. 1810.
™ Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556: 1985 SCC (Cri) 245: AIR
1985 SC 945.
” The Court observed, “Since the Muslim personal law, which limits the husband’s
liability to provide for the maintenance of the divorced wife to the period of iddat,
does not contemplate or countenance the situation envisaged by S. 125, it would be
wrong to hold that the Muslim husband, according to his personal law, is not under
an obligation to provide maintenance, beyond, the period of iddat, to his divorced wife
who is unable to maintain herself.” At p. 950.
From Shah Bano to Danial Latifi and beyond
RN OS SSSR Sea Reta: Sage Rae! 721
intervention with Muslim customary law/} the Court concluded
that
the legal measure was a fair measure, and did not amount to interfer-
ence. The Court felt that it would be incorrect and unjust to extend
the principle of Muslim Law on maintenance to cases in which the
divorced wife is unable to maintain herself.
Regarding failure to bring Uniform Civil Code, the Court observed
with regret:
“There is no evidence of any official activity for framing a common
civil code for the country. A belief seems to have gained ground that it
is for the Muslim community to take a lead in the matter of reforms of
their personal law. A common civil code will help the cause of national
integration by removing disparate loyalties to laws which have conflict-
ing ideologies. No community is likely to bell the cat by making gratui-
tous concessions on this issue. It is the State which is charged with the
duty of securing a Uniform Civil Code for the citizens of the country
and, unquestionably, it has the legislative competence to do so.’74
An impressive part of the judgment is its convincing reasoning about
welfare dimension of Section 125. Building the uniform block of wel-
fare in family matters even by taking the little support of personal
law jurisprudence was a good effort of balancing modernity with tra-
ditional values. The Court’s plea for UCC, although obiter dicta, was
the point on which public opinion was crystallising. The protest by
the Muslim community against the judgment for interpreting Koranic
verse and for speaking in favour of UCC led to political development
of enacting the Muslim Women (Protection of Rights on Divorce) Act,
1986. Section 3(1) of the Act provides that a divorced woman shall be
entitled to have from her husband, a reasonable and fair maintenance
which is to be made and paid to her within the iddat period, She is also
entitled to maintenance of children for a period of two years’ from
the date of their birth, to the Mehr and properties given before or at
the time of marriage. As an alternative to remedy under Section 3, her
73, Ram Nivas Mirdha, Minister of State Home Affairs, while discussing S. 125 had
said, “we would not like to interfere with the customary law of the Muslims through
the Criminal Procedure Code. If there is a demand for change in the Muslim personal.
Law, it should actually come from the Muslim community itself and we should wait
for the Muslim public opinion on these matters to crystallise before we try to change
this customary right or make changes in their personal law... the provision in the
Bill is an advance over the previous situation. Divorced women have been included
and brought within the ambit of Cl. 125, but a limitation is being imposed by this
amendment to Cl. 127,... This is a healthy compromise between what has been termed
opinion ...
a conservative interpretation of law or a concession to conservative public
tried to transgress what are the personal rights of
We have made an advance and not
Muslim women.”
SC 945 at p. 954,
78 Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556: AIR 1985
para 32:
722 Family Law, Modernisatio n and Sacial Transformation
e c SEE ES Se
claim for maintenance from her heirs is recognised under.Section 4.
Application of Section 125 CrPC is possible if the parties opt for the
same. Wakf Board is the last source of help.
The constitutional validity of Sections 3 and 4 of the MWPRDA.was
challéngéd before the Supreme Court in Danial Latifi7> on groundsof
“violating Articles 14, 15 and 21. There were contradicting judgments”
~ by High Courts on this point. The Supreme Court looked to the social
reality and observed, “In our society, whether they belong to the major-
ity or the minority group, What is apparent is that there exists agreat
disparity in the matter_of economic,resourcefulness,between.a.man
and a woman. Our society is male dominated both economically and
‘socially and women are assigned, invariably, a dependent role, irre-
spective of the class of society to which she belongs...””7 Pointing out
that woman investher s life itself in marriage, Rajendra Babu, J. found
it difficult to compensate her for emotional fracture or loss of invest-
ment. According to him,solutions tosuch societal problems of univer-
sal magnitude pertaining to horizons of basic human rights, culture,
dignity and decency of life and dictates of necessity in the pursuit of
social justice should be invariably left to be decided on considerations
other than religion or religious faith or beliefs or national, sectarian,
racial or communal constraints.
The arguments rested on the issues of reasonable classification, right
to live with human dignity; and propriety of throwing the financial
burden upon entities not connected with the dispute. Following Shah
Bano, the Court made a subtle distinction between the provisions to
be made and the maintenance to be paid. Since the remedy should be
equivalent or alternative to that suggested in Section 125, the factors
of fairness of support contemplated in Koran were to be satisfied and
the requirements of right to equality and dignified life were to be com-
plied, the Court read down the relevant provision and resorted. to pur-
posive interpretation.The Court held, “a Muslim husband is liable to
make reasonable and fair provisionfor the future of the divorced wife
which obviously includes her maintenance as well. Such a reasonable
”° Danial Latifi v. Union of India, (2001) 7 SCC 740: AIR 2001 SC 3958
* A.A. Abdulla v. A.B. Mohmuna Saiyadbhai, AIR 1988 Guj 141; Ali v. Sufaira, (1988) 3
Crimes 147 (Ker); K. Kunhammed Haji v. K. Amina, 1995 Cri LJ 3371 (Ker); K. Zunaideen
v. Ameena Begum, (1998) 2 DMC 468 (Mad); Karim Abdul Rehman Shaikh v. Shehnaz Karim
Shaikh, 2000 Cri LJ 3560 (Bom) (FB) and Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin
Shaikh, (1999) 3 Mah LJ 694: 1999 Cri LJ 3846 (Bom) adopting pro-woman approach
imposing responsibility upon husband and Usman Khan Bahamani v. Fathimunnisa
Begum, 1990 Cri LJ 1364 (AP); Abdul Rashid v. Sultana Begum, 1992 Cri LJ 76 (Cal); Abdul
Haq v. Yasmin Talat, 1998 Cri LJ 3433 (MP); Mohd. Ibrahim Begam v. Ramzan Begum, (1993)
1 DMC 60 (Mad) adopting an approach casting responsibility upon wakf.
” Danial Latifi v. Union of India, (2001) 7 SCC 740: AIR 2001 SC 3958, para 20.
From Shah Bano to Danial Latifi and beyond 723
and fair provision extending beyond the iddat period mustbe made by
ee nmand within the iddat period in terms of Section 3(1)(a) ofthe
ct” Faas ss =
~~ Apart from notable interpretational strategy, the decision deserves
appreciation because of pro-human right discourse, court’s willing-
ness to retain legal pluralism subject to stringent constitutional control,
and creative grafting of Koranic ethics to a statutory piece in order
to make it really a protective law. The way in which it has used the
good elements of Shah Bano and avoided the UCC bogey gives an excel-
lent strategy of law for social transformation. The judgment has estab-
lished that conservative approach of sticking to the male-dominant
proposition in the name of religious principle cannot withstand con-
stitutional scrutiny. The potentiality of constitutional jurisprudence
under Articles 14 and 21 to mould the direction of legal development
in family law is also demonstrated.
The pro-human right approach on the maintenance law applicable to
Hindus and Scheduled Tribes has definitely yielded comfortable result,
reinforcing the basic ethics that maintenance of family members is the
first duty. In Madhu Kishwar v. State of Bihar’, the constitutional valid-
ity of certain provisions of Chota Nagpur Tenancy Act, 1908, which
excluded the female dependents from inheritance to the property of
deceased male head of the family, was upheld by the majority of the
Supreme Court only after recognising female members’ right to main-
tenance as a component of right to dignified life under Article 21. The
report by the Committee constituted by the Government under the
direction of the Supreme Court conveyed the tribal people’s obstruc-
tion to change the law of succession in view of fear about alienation
of property to non-tribals by the females and the existing protection
available in the form of maintenance. The majority viewed, “In face
of these divisions and visible barricades put up by the sensitive tribal
people valuing their own custom, traditions and usages, judicially
enforcing on them the principles of personal laws applicable to others,
on an elitist approach or on equality principle, by judicial activism, is
a difficult and mind-boggling effort.””7 The Court unanimously held
78 (1996) 5 SCC 125: AIR 1996 SC 1864.
77 The minority opinion by K. Ramaswamy, J. stated, “It would thus be seen that
to
the customs among the Scheduled Tribes, vary from tribe to tribe and region
prevailin g in the respectiv e regions an
region, based upon the established practice
accepta :
among particular tribes. Therefore, it would be difficult to decide, without
y successio n 1S valid, certain, ancient an
material among each tribe, whether customar
status of law. However, as noticed above,
consistent and whether it has acquired the
in matters of succession
customs are prevalent and being followed among the tribes
marriage, divorce, etc. Customs became
and inheritance apart from other customs like
in their social life and not a
part of the tribal laws as a guide to attitude and practice
final definition of law”. Para 31.
724 nisation and Sacial Transformation
Family Law, ModerEE
0 8
that it is not desirable to grant general declaration that the custom of
inheritance offends Articles 14, 15 and 21 of the Constitution.
K. Ramaswamy, J. in his well-researched dissent interpreted the
term “male descendent” to include female descendent also in the light
of international human rights principles and constitutional provisions
in order to save the constitutionality of the impugned legislation. But
the majority abstained from the equality approach, and found fair
solution in expanded concept of right to life. To the suggestion that
analogy of Hindu Succession Act or Indian Succession Act could be
applied, Punchhi, J. for the majority observed:
“However, much we may like the law to be so we regret our inability to
subscribe to the means in achieving such objective. If this be the route of
return on the Court’s entering the thicket, it is far better that the Court’s
kept out of it. It is not far to imagine that there would follow a bee-line
for similar claims diverse situations, not stopping at tribal definitions,
and a deafening uproar to bring other systems of law in line with the
Hindu Succession Act and the Indian Succession Act as models. Rules
of succession are indeed susceptible of providing differential treatment,
not necessarily equal. Non-uniformities would not in all events violate
Article 14. Judge made amendments to provisions, over and above the
available legislature, should normally be avoided.’”*°
Significance of the judgment consists in serious attempt to infuse
human rights values into the personal law system without supplant-
ing the latter. But the judg nent did not go far enough to confer equal
rights to women. The case demonstrates the difficulty of bringing
social transformation through authoritative legal proposition. Waiting
for favourable public opinion and legislative reform became the strat-
egy of the majority. The case demonstrates the State Policy that there
will not be imposition of personal law reform upon an unwilling com-
munity. It tolerates legal pluralism; but at the same time tries to realise
the human rights values within the existing framework and in accord-
ance with the moral ethos of the society. The attainment of UCC is not
within its immediate agenda.
Judicial social engineering of maintenance law on post-modernity
lines is attempted in some other cases also. Traditional Hindu Law
had not recognised husband’s right to claim against wife whereas
Sections 23 and 24 of the Hindu Marriage Act, 1955 enable the hus-
band to claim maintenance from wife. In no other Indian personal law
husband is given this sort of right. Even in the West such a proposition
is rare. Although not popular, this approach of equality is revolution-
ary. But the judiciary has been cautious in applying this provision. In
% Para 49:
Marriage law, bigamy, divorce and the renewed UCC debate 725
ED
R SELIODS, E A D r
Kanchan v. Kamalendra* the Bombay High Court, in appeal, disallowed
maintenance claim of the able bodied husband against wife, and
observed that to hold otherwise would be to promote idleness and go
against the spirit of the provision. The point that in fit cases like hus-
band’s unfortunate position of disablement due to accident and lack
of means to maintain, his interest shall be protected under the above
provisions was accepted in Lalit Mohan case. Mere factor of indigence
is one to be shared by both the spouses rather than to be compensated
by maintenance. The policy of situation-sensitive justice in culture-
specific context, to which Menski makes frequent reference, has been
applied in maintenance cases. Another development is that criminal
law is applied in cases like Bodhisattwa Gautam*, Vinod Kumar®s and
Mukund Martand Chitnis* to award compensation to women, who were
victims of duping, abandonment and defamatory allegation by the
husbands.
On the whole, the “quiet reform” through Section 125 and pro-
woman approach in maintenance cases have gone beyond modernist
policy, and tried to integrate the values of human rights and welfare.
Menski writes, “Post-modern Hindu Law in this field now reflects the
realistic recognition of a need for the formal state law to rely on social
support system mechanism from within the family to make up for the
lack of a welfare state system in India.”*”
16.8 Marriage law, bigamy, divorce and the renewed UCC debate
The interaction between tradition and modernity has largely influ-
enced the growth of marriage law especially amidst Hindus. The
characteristic features of traditional Hindu marriage law included the
notion of marriage as sacrament, permanent relation of spouses with
very little scope for separation, permission for polygamy and duty of
cohabitation.®* During the colonial period, the Widow Remarriage Act,
1856 and Child Marriage Restraint Act, 1929 brought changes in the
marriage law expanding the ambit of choice and enhancing woman's
//
<A
8! AIR 1992 Bom 493

82 J alit Mohan v. Tripta Devi, AIR 1990 J&K 7.
*8 Sivankutty v. S. Komalakumari, AIR 1989 Ker 124.
SC 922.
8 Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490: AIR 1996
8 Vinod Kumar Kejriwal v. Usha Vinod Kejriwal, AIR 1993 Bom 160.
359: AIR
& Mukund Martand Chitnis v. Madhuri Mukund Chitnis, 1991 Supp (2) SCC
1992 SC 1804.
8? Werner Menski, op. cit., at p. 542.
Taittiriya Samhita, W-12-57;
88 Manu Smriti, IX-96; VII-227; Satapata Brahmana, V-10.6; 45
see also, Poonam Pradhan Saxena , “Matrimonial Laws and Gender Justice” (2003)
JILI 335 at p. 339.
ee
Nee
dignity. The Arya Marriage Validation Act, 1937 provided for valida-
tion of marriage among Arya samajists irrespective of the fact that the
parties belonged to different castes, sub-castes or religions at any time.
According to S.G. Bhat, “These piecemeal treatments, even though
opposed by the conservatists, came to be accepted by the society as
they were the need of the hour.””
In Bombay, Madras and Saurashtra, laws were enacted in 1946, 1949
and 1950 for preventing the practice of bigamy amidst Hindus. In
Narasu Appa Mali” the Bombay High Court abstained from scrutinis-
ing the constitutionality of the Bombay Act under right to equality on
the ground that personal law was not law under Article 13. The argu-
ment that monogamy law was not applicable to Muslims, and hence
amounted to discrimination, was rejected on this count. The approach
was ad hoc and did not put forward human rights approach. But it gave
free hand for legislature to bring reforms in personal law without
Part III limitations. The fact that fundamental rights scrutiny of per-
sonal laws adds social and gender justice principles to family law was
realised only later. The Hindu Marriage Act, 1955 clearly prohibited
bigamy, and brought other important changes. By allowing inter-caste
marriages it has moved from inequality to equality. However, accord-
ing to one view, equality has an unfinished role of effectively protect-
ing the interests of parties entered into marital relation with persons
with unsound mind or impotency.”
Monogamy is an ideal p ‘inciple flowing from the traditional Hindu
concept of marriage as a one-to-one union for life. But as an exception
to this ideal, in limited circumstances polygamy was allowed. Abuse
of this provision was opposed to dharma. But the rulers and the rich,
used to indulge in perversion of polygamy for pleasure. The HMA, 1955
abolished and criminalised bigamy, and the bigamous marriages were
rendered void. Under the Special Marriage Act of 1954, the Christian
Marriage Act of 1825 and Parsi Marriage and Divorce Act of 1936 also,
bigamous marriage is void. Sections 494 and 495 IPC impose punish-
ment on the bigamous husbands.93
* S.G. Bhat, “Laws of Marriage from Sastras to Statutes—Inequality to Equality”

(2003) 45 JILI 400 at p. 405.
”” State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84.
*! Supra, n. 88, at pp. 406-07.
** Manu Smriti, X-81 states that a barren wife may be superseded in the eighth year,
she whose all children die in the tenth, she who bears only daughters in the eleventh,
but she who is quarrelsome without delay. See also, Arthasastra, at pp. 2,3; 9,33} Yay.
Smriti. Getting a son was not only promoting spiritual benefit but also strengthening
the joint family system.
3S. 494 IPC states, “Whoever having a husband or wife living, marries in any case
in which such marriage is void by reason of its taking place during the life of such
Marriage law, bigamy, divorce and the renewed UCC debate
ae elas ye panna anh = USS SI SSR RS eh Phe 727
Under Muslim Law, man may have as many as four wives at the
same time but not more. The fifth marriage during the subsistence of
four wives is irregular but not void. In Shahulameedu%, V.R. Krishna Iyer,
J. has held on the basis of scholarly opinions that Koran has enjoined
monogamy upon Muslims and departure therefrom was an exception.
Another problematic factor in Muslim Law is husband’s unbridled
power to divorce his wife unilaterally by uttering triple talak. V. Khalid,
J. in Haneefa% has questioned whether the Muslim wives should suf-
fer the tyranny for all times, and whether their personal law should
remain so cruel towards the unfortunate wives. He appealed to the
leaders of public opinion to positively respond to the monstrosity. In
spite of this unfair position, Parliament did not take up this matter for
reform. Jawaharlal Nehru felt that Muslims were not sufficiently edu-
cated to accept and approve modern values. He observed, “Now, we
do not dare to touch the Muslims because they are in minority and we
do not wish Hindu majority to do it. These are personal laws and so
they will remain for the Muslims unless they want to change them.’
He.completely ruled out imposition in this matter.
of judiciary about requirements for validity of the second marriage.

However, there are instances where courts came to the help of second
wife. Case law development in this sphere needs to be briefly surveyed
to understand the need for and difficulty in enacting UCC.
Sarla Mudgal” is a landmark case_on the bigamy-conversion issue,
which initiated the debate on UCC by directing the Union Government
to fileaffidavit about the action taken for securing UCC. The Court
‘examined. whether.a-Hindu.husband,.married.under.Hindu. Law,by
embracing Islam, can solemnise second marriage and whether such
“a marriage without having the first.marriage.dissolved under law,
be a valid marriage qua the first wife who continue to be Hindu.
‘would
From a catena of case law the Supreme Court inferred that “a mar-
riage celebrated under a particular personal law cannot be dissolved
husband or wife , shall be punished with imprisonment of either description for a

term which may extend to seven years’, and shall also be liable to fine.
o
4 Shahulameedu v. Subaida Beevi, 1970 KLT 4.
%® Haneefa v. Pathummul Beevi, 1970 KLT 512 at p. 514.
% Tibor Mendis, Conversation with Nehru, at p. Bie
7 Sarla Mudgal v. Union of India, (1995) 3 SCC 635.
nana id a a a, Be
ae aa
a
by the application of another personal law to which one of the spouses

converts and the other refuses to do so. Where a marriage takes place
under Hindu Law the parties acquire a status and certain rights by
the marriage itself under the law governing the Hindu Marriage and
if one of the parties is allowed to dissolve the marriage by adopting
and enforcing a new personal law, it would tantamount to destroying
the existing rights of the other spouse who continues to be Hindu.”
Cour
The tthat there.was.no.automatic dissolution of the mar-
ruled
riage by virtue of conversion, and that considerations of equity, good
conscience and natural justice would render the second marriage void
and-make’Séction 494 applicable. It suggested for enacting Converts
Marriage law and taking steps for UCC.”
In Lily Thomas, the Supreme Court reviewed its findings in Sarla
Mudgal toaddress the argument pressing on religious freedom of the
converts. Tracing the roots of Muslim Law in the values of peace and
Justice R.P. Sethi-viewed:
“it would be doing injustice to Islamic Law to urge that the convert
is entitled to practice bigamy notwithstanding the continuance of his
marriage under the law to which he belonged before conversion. The
progressive outlook and wider approach of Islamic Law cannot be per-
mitted to be squeezed and narrowed by unscrupulous litigants, appar-
ently indulging in sensual lust sought to be quenched by illegal means,
who apparently are found to be guilty of the commission of the offence
under the law to which the; belonged before their alleged conversion. It
is nobody’s case that any such convertee has been deprived of practising
any other religious right of the attainment of spiritual goals. The Islam
which is pious, progressive and respected religion with rational outlook
cannot be given a narrow concept as has been tried to be done by the
alleged violators of law."
However, the Court clarified that no direction had been given
to the
Union Government regarding UCC, and that the judges had expressed
their individual opinions regarding desirability. of UGG. There are
criticisms against Lily Thomas about loosening the pressure for UCC.
8 -Para.14.
*” R.M. Sahai, J. observed in concurrence, “Freedom of religion is the core of our
culture. Even the slightest deviation shakes the social fibre. ‘But religious practices,
violative of human rights and dignity and sacredotal 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 promotion of national unity and
solidarity. But the first step should be to rationalise the personal law of the minorities
to develop religious and cultural amity. The Government would be well advised to
entrust the responsibility to the Law Commission which may in consultation with
Minorities Commission examine the matter and bring about the comprehensive
ean in keeping with modern day concept of human rights for women.” Para
Lily Thomas v. Union of India, (2000) 6 SCC 224: AIR 2000 SC 1650 at para 61.
Marriage law,
Sy bigamy i
, divorce and the renewed UCC debate
eatin Dit ee lata 729
But main part of the judgment about the convertee’s links with spouse
under earlier personal law convincingly argues against commoditis-
ing and trivialising religion for escaping from criminal liability arising
from lust.
Another factor that obstructs successful prosecution against biga-
mous husbands is the legal requirements about celebration of marriage.
If a ritual practiced for a marriage is not the one prescribed for valid
marriage under the customs, the marriage contracted becomes a nul-
lity. Applying this proposition strictly, the Supreme Court in Bhaurao
Shankar'" held that departure from the essential custom made the
marriage not performed and that because of non-occurrence of one of
the marriages the accused was to be acquitted. The principle was reit-
erated in Kanwal Ram'*®, Santi Deb Berma’®3 and other cases. Sometimes,
even when the community’s custom does not insist on performance of
saptapadi and homam, courts have held non-performance of saptapadi as
departure. Many of the bigamy prosecutions have resulted in acquit-
tal or imposition of lenient punishment. However, when the second
wife has claimed maintenance or other remedies, the requirement of
compliance with essential ritual is not insisted. In Sumitra Devi'*+ non
performance of saptapadi but performance of other customs was con-
sidered as fulfilling the requirement of valid marriage, and the main-
tenance for the petitioner and her child was awarded. In Obula Konda
Reddy'’® the A.P. High Court considered void marriage as neverthe-
less marriage and granted maintenance from the “husband”. However,
when the first wife sought permission for her husband’s second mar-
riage during the subsistence of her marriage, the H.P. High Court has
rejected such claim in Santosh Kumari’.
The outcome of bigamy law’s development is that judiciary has
looked to the issue from the perspective of criminal law, and went for
strict interpretation. But when woman’s claim is involved, a liberal and
pro-woman approach is adopted to provide some remedies to her. The
judiciary’s concern for upholding woman's right projects modernity,
which is juxtaposed to the conservative approach about strict compli-
ance with customs and tradition.
The traditionalism v. modernity discourse can be carried out
with reference to other aspects of matrimonial law also. Firstly, plu-
ralistic practices relating to marriage have continued in spite of the
11 Bhaurao Shankar Lokhande v. State of Maharashtra, AIR 1965 SC 1564.

02 Kanwal Ram v. H.P. Admn., AIR 1966 SC 614.
816.
3 Santi Deb Berma v. Kanchan Prava Devi, 1991 Supp (2) SCC 616: AIR 1991 SC
(Cri) 145.
104 Sy mitra Devi v. Bhikan Choudhary, (1985) 1 SCC 637: 1985 SCC
5 C.O.K. Reddy v. C.P.V. Lakshamma, AIR 1976 AP 43.
% Santosh Kumari v. Surjit Singh, AIR 1990 HP 77.
its
Introduction of modernity. The Hindu Marriage Act, even with
rmity in
avowed policy of bringing uniformity could not attain unifo
the matter of form of conducting marriage. In order to accommodate
local variation in the form of conducting marriage, the law was amend-
ed.” Allowing the parties to marry according to their customs con-
solidates emotional attachment to the marital relation. Although the
Act has disallowed marriage of parties within the prohibited degree
of marriage, it has stated that if the custom provides otherwise, this
restraint would not operate. Regarding the requirement of registra-
tion of marriage, the HMA empowers the state governments to make
appropriate rules. In fact, all the states have not gone for compulsory
registration system. Even in states that have provided for compulsory
registration of marriage, in the absence of punitive or other persuading
measures for registration, the law has remained only in statute book.
The Karnataka Marriages (Registration and Miscellaneous Provisions)
Act, 1976 has provided that every marriage contracted in the state shall
be registered under the Act. However, non-registration or irregular
registration would not be rendering the marriage invalid. The Act also
imposes luxury marriage tax upon persons celebrating marriage by
spending more than rupees five thousand and prohibits rendering of
hospitality (by feeding) to more than five hundred persons. The law is
highly ambitious in aiming at alteration of traditional social practice,
and has not been responded positively by the people. The effort of
bringing social transformation through law alone is met with disap-
pointment. Registration of marriages has a number of advantages in
that it provides proof of marriage, discourages bigamy, prevents child
marriage, and avoids abandonment.’® While registration is a must
under Special Marriages Act, 1954, Indian Christian Marriages Act,
1872, Foreign Marriage Act, 1969 and Parsi Marriage Act, 1936, under
Hindu and Muslim Law it is optional. In view of increased number
of overseas marriages, the requirement of compulsory registration is
desirable. But adequate public opinion in favour of such a system is a
must for its success.
Secondly, modernity arguments relating to restitution of conjugal
rights have been balanced with traditionalist approach. Restitution
of conjugal rights is a remedy coined in the Western family law, but
supporting the cause of enduring marital relation. Its introduction
through Section 9 of HMA has given rise to the debate on human right
'” Deivanai Achi v. Chidambaram Chettiar, AIR 1954 Mad 657 the ritual of self-
respecter’s system was not recognised. This defect was removed by an amendment
to HMA 1955.
8 Ranbir Singh, “Women and Compulsory Registration of Hindu Marriage: Need
for Uniform Legislation” in Shamsuddin Shams (Ed.), Women, Law and Social Change
(Ashish Publishing House, New Delhi 1991) at p. 39.
Marriage law, bigamy, divorce and the renewed UCC debat
———
e —— a e e 731
issues in intra-spousal relation. In T. Sareeta™ the Andhra
Pradesh
High Court preferred individual Spouse's privacy right over her
obli-
gation under marital relation, and Section 9 was declared as
unconsti-
tutional because of violating Article 21, whose guarantee of perso
nal
liberty included right to marital privacy and Article 14 because of
its
discriminatory effect. Contrary to this, in Harvinder Kaur" the Delhi
High Court noted that the object of restitution decree was to bring
about cohabitation between the estranged parties so that they could
live together in the matrimonial home in amity; and that since the res-
titution decree did not enforce sexual intercourse, it did not violate
right to privacy or equality. The privacy of the family as a whole was
given due recognition. In Saroj Rani’ the Supreme Court upheld the
Harvinder Kaur approach and reiterated that in the restored marital
relation sexual relation could not be claimed as of right. The Court
referred to 71st Law Commission’s observation:
“Moreover, the essence of marriage is a sharing of common life, a
sharing of all the happiness that life has to offer and all the misery that
has to be faced in life, an experience of the joy that comes from enjoying,
in common things of the matter and of the spirit and from showering
love and affection on one’s off-spring. Living together is a symbol of
such sharing in all its aspects. Living apart is a symbol indicating the
negation of such sharing.”
The legal development points out preference of traditional approach,
subject to human rights refinement, to the individualist arguments of
modernity.
Thirdly, the growth of law relating to divorce has tried to continue
some of the basic aspects of traditional law along with the applica-
tion of modern law of marriage. While traditional Hindu Law believed
in indissolubility of marriage, HMA introduced specific grounds for
divorce in circumstances of faults by spouses. Non-compliance with
restitution order conjugal irretrievable breakdown of marriage is
another ground. In 1976, divorce by mutual consent was introduced
by amending HMA in order to meet the changed social circumstances.
The amendment is described by Derret as bringing death to a mar-
riage law, creating an instrument of oppression on suffering wives,
and writing an epitaph on a value system propounded by rishis'*
whereas other scholars called it as possessing revolutionary charac-
ter and heartening spirit."? There were scholarly opinions and also
09 T Sareetha v. T. Venkata Subbaiah, AIR 1983 AP 356.
10 Harvinder Kaur v. Harmander Singh, AIR 1984 Del 66.
1 Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90: AIR 1984 SC 1562.
"2 JDM. Derrett, The Death of aMarriage Law: Epitaph for the Rishis (Vikas, New
Delhi 1978).
113 See, for discussion Werner Menski, op. cit., at p. 452.
eee
Ce
Law Commission Report suggesting for introduction of new ground
of divorce based on breakdown of marital relation. But the idea was
given up in 1981 owing to opposition from women’s organisations
based on the fact that the remedy was not suitable to Indian cultural
ethos and the fear that it will give avenue for husbands to opt out of
marital relation on flimsy grounds and leave the wife and children in
the lurch. Compared to the earlier liberal judicial interpretation of the
divorce provisions, the interpretation during 1990s has tried to save
the marital relation against not-so-justified divorce claims. In Madan
Mohan"'4 the Calcutta High Court refused a decree of divorce when the
husband was pressing for divorce while already living with another
woman but the wife still desired for continuation of marital relation.
The Court stated that easy divorce opportunity would seriously shake
the very institution of marriage. In V. Shankar Ram’ the Madras High
Court upheld refusal of divorce when the husband alone was desirous
of having divorce and the wife was opposing it, and no fault had been
proved. The Bombay High Court in a case required existence of sub-
stantive cruelty more serious than ordinary wear and tear of married
life. Divorcing of wife after the death of one’s mother only for the rea-
son that her eldercare service was no more required, was not approved
by the Kerala High Court. In Usha", the Madhya Pradesh High Court
applied fundamental duty of renouncing practices derogatory to dig-
nity of women and of striving towards excellence under Article 51-A
to divorce law, and decli1ted to give divorce decree. The proposition
that party to marriage shall not take advantage of his own wrong for
getting divorce was clearly laid down by the Supreme Court in Chetan
Dass"’?, The Court observed:
“Matrimonial matters are matters of delicate human and emotional
relationship. It demands mutual trust, regard, respect, love and affec-
tion with sufficient play for reasonable adjustments with the spouse.
The relationship has to conform to the social norms as well. The matri-
monial conduct has now come to be governed by Statute framed, keep-
ing in view such norms and changed social order. It is sought to be con-
trolled in the interest of the individuals as well as in broader perspective,
for regulating matrimonial norms for making of a well knit, healthy and
not a disturbed and porous society. Institution of marriage occupies an
important place and role to play in the society, in general. Therefore, it
would not be appropriate to apply any submission of ‘irretrievably bro-
ken marriage’ as a straitjacket formula for grant of relief of divorce.”
_
' Madan Mohan Manna v. Chitra Manna, AIR 1993 Cal 33.
_
'S V. Shankar Ram v. Sukanya, AIR 1997 Mad 394.
'© Sunil Kumar v. Usha, AIR 1994 MP 1.
'” Chetan Dass v. Kamla Devi, (2001) 4 SCC 250: AIR 2001 SC 1709.
Marriage law, bigamy, divorce and the renewed UCC debate
She a eR eS le 733
The approach reflects distrust with the modernist and carefree
approach, and adheres to the positive side of traditional approach
about marriage as an enduring tie. Menski considers the development
as one balancing the deficiency in commitment to modernity, and mov-
ing beyond the boundaries of tradition and modernity.'*® The Supreme
Court has recently expressed its anguish and concern against abuse of
the HMA: “HMA has broken more homes than uniting...The growing
number of divorce cases in the country is having a disastrous effect on
children of families which get broken.”"”9 The Court viewed that some
couples have abused the provisions granting divorce on ground of suf-
fering from mental illness or leprosy.
There are decided cases in which courts granted divorce to hus-
bands on the ground of cruelty that the husband is humiliated by
the wife by not serving tea to his guests;° by wearing modern dress
and by participating in dance against his wishes;*" by leaving aside
children of wedlock with husband while going to parental home for
long duration; or by tearing the mangal sutra.’3 On the other hand,
husband's act of calling his wife unchaste, by itself, did not amount
to cruelty when wife sought for divorce. It has been commented by
a scholar that while law on statute book reflected balanced position,
judicial application has tilted the law against women, “Marriage is
viewed, by majority of judges, as an implied surrender of the right of a
woman over her freedom; a sacrifice of her aspirations and desires and
an acceptance of her role as a home maker working to earn the much
eluded satisfaction of her in-laws.”"*5
The Muslim Law on marriage confers upon the Muslim husband
right to divorce unilaterally by pronouncing talak and conveying his
decision to the wife. Some of the unsatisfactory matters relating to
divorce are that talak may be validly pronounced under compulsion
or voluntary intoxication; the right of giving talak may be delegated;
it may be given orally and be subject to future event. The attempts to
bring reforms through judicial intervention have been unsuccessful.’
Under Section 2 of the Dissolution of Muslim Marriage Act of 1939, a
"8 Werner Menski, op. cit., at p. 482.
"9 Per Arijit Pasayat, J. in Gaurav Nagpal case, The Hindu, 16-6-2008.
120 Kalpana v. Surendra Nath, AIR 1985 All 253: (1985) 11 ALR 552.
121 Priti Parihar v. Kailash Singh Parihar, AIR 1978 Raj 140.
122 (1997) DMC 377, see also, Poonam Pradhan Saxena, infra, n. 125 at pp. 380-81.
123 Parimi Mehar Seshu v. Parimi Nageswara Sastry, AIR 1994 AP 92.
24 Neera v. Kishan Swarup, AIR 1975 All 337. |
45 JILI
25 Poonam Pradhan Saxena, “Matrimonial Laws and Gender Justice” (2003)
335 at p. 387. |
AIR
126 Ahmedabad Women Action Group (AWAG) v. Union of India, (1997) 3 SCC 573:
1997 SC 3614.
CO npg a
Muslim wife may sue for divorce on specific grounds. The grounds
are related to situations in which married life is practically impossible
whereas the earlier law had not provided any remedy in such circum-
stances. It has been viewed that Muslim womans right to repudiate
marriage by khula, which is recognised under the 1939 Act, has put
her in a position equal to that of husband and established a rational
balance.’””
The Indian Divorce Act of 1869 had numerous anomalous provisions
discriminating against women. For example, in order to seek divorce
a wife had to prove not only adultery by husband but also incestuous
adultery and bigamy with adultery whereas it was sufficient for hus-
band to establish mere adultery by the wife. Impleading adulterer or
adulteress as co-respondent, getting confirmation from High Court for
divorce and limited availability of the grounds for divorce were unsat-
isfactory factors. Series of recommendation by the Law Commission,
and efforts of judiciary to sensitise the law-makers along with piece-
meal interpretative adventure to make the law more humanist” ulti-
mately led Parliament to amend the Act in 2001 to bring far-reaching
changes. Not only that the anomalies were removed and grounds for
divorce were expanded to fall in line with reforms in other personal
laws, but also the right to maintenance was conferred to wife. While
the parallel English Law on the subject had undergone big change and
the HMA had brought gender equality in this matter, the Christian
community had not vociterously demanded for change, and it is after
a long waiting for consensus that law interfered to bring the change.
Undue concern for not disturbing the minority community’s per-
sonal law was the reason for delay. The Parsi Marriage and Divorce
(Amendment) Act, 1988 enhanced the age of marriage to conform to
the general law, provided grounds of divorce on account of cruelty or
of unsound mind of the other spouse; introduced divorce on mutual
consent; and provided for payment of alimony and in camera trial.
With these changes operating, inequality in personal law is lessened
paving the way for UCC. Universal application of Dowry Prohibition
Act is also a factor that supports UCC venture.
16.9 Succession and property rights: towards equality?

Ownership and control over material assets is not only a source of
economic security but also symbolises economic status of the family
of Saleem Akhtar and Mohd Wasim Ali, “Repudiation of Marital Tie at the Instance
of Muslim Wife: Misgiving and Clarification” (2003) 45 JILI 471; see also, Fu rqan Ahmad,
“Understanding the Istamic Law of Divorce” (2003) 45 JILI 484.
8 Ammini EJ. v. Union of India, AIR 1995 Ker 252; Pragati Varghese v. Cyril George
Varghese, AIR 1997 Bom 349.
Succession
oe ae and property rights: towards equality?
ah Mt s gan 735
members connected with the bonds of kith and kin. Ancie
nt Indian
approach of subordinating property interest to dharma and conce
ptu-
ally visualising it as an instrument to protect against undeserved mis-
ery and unjust enrichment speaks about property right’s orien
tation
towards good life. As Poonam Pradhan Saxena writes, “An equitable
and fair balance of rights and duties are required to be displayed in’
the laws and its practical implementation through judicial interpreta-
tion as different from the protection of institutions, conservation of
property and the rights of the powerful at the cost of the vulnerable,
throwing them totally at the mercy of the economically influential
relations and perpetuating their economic subjugation.’"*9 The law’s
task in this regard has been difficult not only because of diversity of
personal laws but also due to varieties of gender discriminations and
other denials.
The concept of Hindu Joint Family providing shelter and succour to
all the members has been an important feature of Hindu Law. Until
recently, coparcenary was a narrower system within HUF consisting of
only male members. Daughters were not entitled to share in the family
property. But maintenance and protection of interests of female mem-
bers was a duty cast on coparceners. According to traditional Hindu
Law, mothers were entitled to claim share in the family property equal
to that of their sons when partition took place. While Yajnavalkya Smriti
had laid down this proposition, and it was continued in Mitakshara,
because of narrow interpretation by sub-commentaries and desuetude
in social practice, mother’s right got neglected in course of time, espe-
cially in South-India.%° However male domination in legal develop-
ment brought this situation is revealing the attitude towards women.
karta or patriarchic head possesses towering powers and responsibili-
ties. Coparcenary system means that income or property earned by
coparceners by using the nucleus of family property forms part of the
family property. When this caused problem to coparceners who were
educated by use of family property but working outside the family
in modern period, the demand for protection of individual interests
of learned coparceners emerged. In response, the Hindu Gains of
Learning Act was passed in 1930. Individualism got entry to Hindu
Law. Modernisation that took place in this process ignores the need to
compensate the family which funds education, which is quite costly in
29 Poonam Pradhan Saxena, Family Law Lectures: Family Law II (2nd Edn,
Butterworths Lexis Nexis, New Delhi 2007) Preface to 1st Edn.
130 _P. Ishwara Bhat “Hindu Mother's Right to share in the Coparcenary Property: A
Critique of South Indian Practice”, (1985) 9 The Academy Law Review at p. 187; see also,
the
Prakash Chand Jain, “Women’s Property Rights under Traditional Hindu Law and
Hindu Succession Act, 1956: Some Observations” (2003) 45 JILI 509.
736 Modernisation and Social Transformation
Family Law,ee
OO
ed to the gains of
recent times. The interests of justice need to be link
ernity."
learning in order to balance between tradition and mod
al assist-
Coparcenary system operates on the basis of trust, mutu
benefit of
ance and joint venture. The concepts of legal necessity and
for all
estate reflect some of the cultural traits of Hindu family caring
and
and collectively participating in family’s affairs, both mundane
spiritual. The banyan tree of four generation HUF is rare nowadays in
the era of nuclear family. But its ethos is still guiding the Hindu fami-
lies. Insistence on honesty in partition of family property, sons’ pious
obligation to pay debts, eschewing of avyavaharika debts and such
other principles stand for avoidance of unjust enrichment.” Care for
the old is a virtue meticulously cultivated in HUF to build up indig-
enous social security system based on love to avoid the dependence on
mechanical atmosphere of old age home of modern times. But modern
employment practices and migration of sons to distant working places
have challenged the old pattern of living, and modern social security
system is resorted to in some instances.
The more serious problematic factor about coparcenary is absence of
adequate protection of women’s interests in the family property. While
mother’s right in coparcenary property was uncertain in some areas,
the rights of daughters and other dependents were confined to main-
tenance or any benefit conferred through good gesture of coparceners.
The beginning of change was witnessed with the passing of Hindu
Women’ Right to Property Act in 1937. This Act conferred upon wid-
ows of coparceners of HUF, right to claim partition of family property
and hold the shares that their husbands would have got had the par-
tition taken place. But such right was limited estate i.e. right to hold
the property and enjoy its benefits during their lifetime without the
power of alienating by any means. After their death or remarriage, the
property would revert back to the family. Compared to the miserable
situation of widows who had merely maintenance rights earlier, the
elevation of their status in respect of family property was a welcome
change boldly carried even by making inroad into the doctrine of sur-
vivorship. The Hindu Succession Act of 1956 brought radical change by
converting the limited estate into absolute right of the widow.
Other far-reaching changes brought by HSA, 1956 have greatly sup-
ported the feminist cause. Although it retained the doctrine of survi-
vorship, when any female heir or her successor in Class I inheritors
was surviving on the death of a coparcener, the property was to be
'! P. Ishwara Bhat, “A Critical Appraisal of the Hindu Gains of Learning Act”
(1985) 27 JILI 578.
'? P. Ishwara Bhat, “Protection against unjust enrichment and undeserved misery
as the essence of property rights jurisprudence in Mitakshara” (2006) JILI.
Succession and property rights: towards equality?
S e 737
devolved on the basis of intestate or testamentary succession.
The
female heirs in Class I included four males and eight females includ-
ing mother, widow, daughter, etc. The concept of notional partition
was used because of which the share of the deceased coparcener was
to be first identified according to the classical law. While interpreting
Section 6 of the Act in Gurupad v. Hirabai'33, the Supreme Court held
that the heir will get his or her share in the interest which the deceased
had in the coparcenary property at the time of his death, in addition to
the share which he or she received or must be deemed to have received
in the notional partition. The case was instituted by the widow of the
deceased who claimed her share under notional partition along with
right of succession. Any restrictive interpretation that excluded her
right under notional partition was, according to the Court, a retrograde
step and putting back as it were the clock of social reform, which has
enabled the Hindu woman to acquire an equal status with males in
matters of property. According to the Court, the provision intended to
remedy the injustice from which the Hindu women have suffered over
the years, and required liberal interpretation. The principle laid down
in Gurupad has been reaffirmed by the Supreme Court in Narayan Rao
case",
Another notable change that favoured women is recognition of
female’s right to dispose her interest by will, gift or sale. However,
exclusion of dwelling house from partition even notionally, and the
operation of testamentary succession as an alternative to intestate suc-
cession were disadvantageous to women. Non inclusion of father in
Class I heirs has been defective, especially when the father is old and
in need of help, and had contributed substantially for son’s education
and career.
Inherent deficiency in the HSA was that it had continued male domi-
nated coparcenary system, which had reduced the shares of daughters.
The justifications for this policy, in addition to compliance with tradi-
tion, perhaps consisted in male members’ contribution for protection
and expansion of family property and absence of female members for
work in the HUF because of marriage for which expenses are incurred
from the family property. In the year 1975, the process of legislative
reform began. The Kerala Joint Hindu family (Abolition) Act, 1975
abolished the system of coparcenary in Kerala. It also abrogated the
concept of pious obligation. The Andhra Pradesh Hindu Succession
(Amendment) Act, 1985 had the avowed policy of promoting equality
before law and dealing with socially pernicious practice of dowry by
positive measure of ameliorating the conditions of Hindu women in
133. (1978) 3 SCC 383: AIR 1978 SC 1239.

34 State ofMaharashtra v. Narayan Rao, (1985) 2 SCC 321: AIR 1985 SC 716.
en eee
ey er
the society. Instead of abolishing coparcenary, it recognised daughters

as coparceners with legal capacity equal to sons in respect of family
property. She was also given preferential right to purchase the shares
of other coparceners in case of sale at a rate fixed by courts. The Tamil
Nadu Hindu Succession (Amendment) Act, 1989, the Hindu Succession
(Karnataka Amendment) Act, 1990 and the Hindu Succession
(Maharashtra Amendment) Act, 1994 provided for similar principles,
following the Andhra Pradesh model. These amendments are given
effect from the date of passing of them although President’s assent
was given subsequently. They do not disturb the partitions that took
place before the commencement of the amendments. Further, they are
not applicable to daughters married prior to the commencement of the
respective Acts. The constitutionality of the differentiation between
married and unmarried daughters was upheld by the Karnataka High
Court as a reasonable classification.° The 15th Law Commission in
2000 recommended for changes by combining the policies underlying
the Kerala and Andhra Pradesh models.”
The Hindu Succession (Amendment) Act, 2005, incorporating the
Law Commission’s recommendations, brought substantial change
benefiting the interests of women all over India. Firstly, it declares that
daughter shall by birth become a coparcener in her own right in the
same manner as the son, having same rights as that of son in copar-
cenary property subject to the same liabilities as that of son. Going a
step ahead of the State Arnendments, the Central law does not debar
the daughters married prior to the 2005 Act from claiming their shares
in the coparcenary property, although provides for protection of parti-
tion or settlements or alienations done prior to the Act. This provision
has wide reach so as to allow daughters to claim their shares wher-
ever the family is undivided. Secondly, it rejects the rule of devolution
by survivorship and employs the concept of notional partition and
devolution through testamentary or intestate succession to the prop-
erty of the deceased Hindu. Thirdly, it discards the disability imposed
upon son or daughter who had been separated from the joint family
through partition from succeeding to the property of the deceased
person. Fourthly, Section 23 of the Act, which had excluded the female
heir from claiming partition of dwelling house of the family unless
the male heirs choose to divide their respective shares therein, has
been repealed by the Amendment. As a consequence, female heirs
'° Came into force in 1994.

‘8° Nanjamma v. State of Karnataka, 1999 ATHC 3003 (Kant).
‘7 174th Report of the Law Commission of India on “Property Rights of Women:
Proposed Reforms under the Hindu Law” 5-5-2000. (under the chairmanship of Justice
B.P. Jeevan Reddy).
Succession and property rights: towards equality?
a 739
have full-fledged rights on dwelling house of the family. The positi
on
prior to the 2005 Act had virtually deprived the females from claim-
ing share in the dwelling house. The change has far-reaching conse-
quence in making the rights of female members a reality. Especially in
urban places, this will have great impact. Fifthly, disability imposed
upon widow of pre-deceased son or widow of pre-deceased son of pre-
deceased son or widow of brother from succeeding to the property of
the deceased in case she has remarried on the opening of succession is
removed by the 2005 Act. However, it is a debatable issue whether this
amounts to conferring a right to them in view of their changed posi-
tion after remarriage that they would be no longer widows. Sixthly,
the overriding character of the law relating to fragmentation or ceiling
of agricultural property upon the HSA is no more applicable. Hence,
such legal pretexts cannot be put forward to defeat the claim of heirs.
Finally, taking a leaf from the Kerala Act, the 2005 Act has abrogated
the rule of pious obligation of sons."
The whole development is progressive one for women, started with
a modest beginning of economic protection to widows, developed in
the form of right of succession, and ultimately became mature copar-
cenary right on a footing of equality with that of males. Just like hun-
ger grows on little feeding, from modest demands to big movements,
changes took place at the social level and in the legal domain. One of
the major factors of gender inequality in Hindu family law got removed
with the passing of the 2005 Act. But this needs to be supported by
enlightened and pro-woman public opinion, and also satisfaction of
reasonable expectations of family members about sole support and
sustenance from family property. Whether the daughters’ marriage
expenses are to be borne out from the general pool or are to be met
by use of their individual shares is a question faced in the changed
socio-legal circumstance. Although legally the latter proposition may
prevail, the individual circumstances of each case will offer appro-
priate answer. Anyway, so many questions are raised, exhibiting the
trends of transformation. One such question is whether total substitu-
tion of intestate succession by testamentary succession is appropriate,
or whether it needs some limitation.
The Mohammedan Law of Succession was originally based on cus-
toms of Arabic tribes but subsequently modified by Koranic princi-
ples that laid emphasis on blood tie rather than on comradeship in
arms. In the absence of birth right and joint family system, the Muslim
inheritance law builds up a scheme in which close blood relations are
given entitlement. But the persons who are introduced by marriage to
al Law
138 For a discussion see, P.K. Das, New Law on Hindu Succession (Univers
Publishers, New Delhi 2006).
740 “ l Transformation
Family Law, Modernisation and Socia
do not succeed to
a family, with the exception of widow or widower,
surviving spouse,
the property of the deceased. Primary heirs include vary
of sharers sometimes
son, daughter, mother and father. The rights
is 1/8. If there is
with sex. While husband’s right is 1/4, the share of wife
Father and mother
more than one wife, 1/8 shall be shared by them all.
al right as
have equal shares (1/6) as sharers, but father gets addition
these
residuary sharer. Son gets double the share of the daughter. All
g to
reflect gender discrimination in the matter of succession operatin
i
the disadvantage of woman. There is also difference between Sunn
and Shia rules of succession.
One striking and laudable principle in Muslim Law is that of testa-
mentary restriction of one-third. Bequests in excess of the legal third
cannot take effect, but get abated ratably, unless the heirs consent
thereto after the death of the testator. The idea is that since the legal
arrangement itself is fair, there should be minimum disturbance to the
law of inheritance. The concern to protect the interests of dependants
against unscrupulous bequests has humanist dimension.’” This rule
has several advantages. First, the kin of the deceased are assured of
equal shares and they will be protected against the whims and fan-
cies of the testator. Second, the person bequeathing can provide for
additional share by his will to any of his legal representatives who has
assisted him/her during the old age or to a person whom he thinks as
deserving because of economic weakness of that person. Third, the
rule protects against bequests of whole property to any person, insti-
tution or body adversely affecting the interests of the closest blood
relatives of the testator. Finally, the impact of undue influence in the
process of making the testament will be considerably limited.
Under the Christian Law of Inheritance, laid down in the Indian
Succession Act, 1925, the share of surviving spouse (widow or wid-
ower) is 1/3 of the estate, and the lineal descendents share the rest of
the property. If there are no lineal descendents, father (or mother in
case the father is dead) gets the rest of the property after deducting
widow’s share of 1/2. If these heirs are also not available, brothers and
8° According to Julius Stone, the rules of succession should aim towards protecting
the family from disintegration. Explaining the English legal developments in 1938
(Inheritance Family Provision Act, 1938) which introduced limits on testamentary
disposition Prof. Stone observes, “Freedom of testation which favoured family stability
when rules of intestacy fell short, might well become dangerous to this interest when
the rules on intestacy have been made adequate. The discretion given by the Act to
make provision for certain members of the family despite the will, might seen to
promote, by restricting testation the same interests as had formerly to be promoted
by freedom of testation itself.” See, Julius Stone, Social Dimensions of Law and Justice
(1966), at p. 316. See also, P. Ishwara Bhat “Directive Principles of State Policy and Social
ene with Reference to Uniform Civil Code” (1989) 25 Banaras Law Journal at
p: 75.
Succession and property rights: towards equality? 741
ene TE
sisters or nearest kindred get the shares. The Parsi Law of Succession
under the Act of 1925 provides for equal shares among the widow/wid-
ower and children. Widows of male lineal descendents are given rights
so long they remain not remarried. The Act of 1925 had a discrimina-
tory provision (Section 118) prohibiting the making of deathbed will
by Christians for religious or charitable uses. In John Vallamattom the
Supreme Court held this provision as violative of Articles 14 and 15 of
the Constitution. According to the Court, the impugned section dis-
criminated against Christians on many counts.’** The Court referred
to several provisions of Human Rights instruments in support of
non-discriminatory personal law and reiterated the need for UCC.
According to V.N. Khare, CJI, “A common civil code will help the cause
of national integration by removing the contradictions based on ideol-
ogies.” The Court’s application of equality provision for nullifying dis-
criminatory provisions of personal law is a laudable step in upgrading
the quality of personal law to reflect fair position. Compared to Madhu
Kishwar where the Court hesitated to apply right to equality in fear of
beeline of cases, the approach in this case is bold. Perhaps, the dis-
satisfaction by the Christian community against the law based on old
English model, which had been abandoned in England also long back,
was taken into consideration. However, ignoring of the spirit of Section
118 to limit the testamentary power in order for protecting the rights
of nearest relatives requires rethinking. Instead of total prohibition of
testamentary disposition, partial restriction without any distinction
based on religion or purpose of bequest will be protecting the interests
of the dependants.
In Mary Roy v. State of Kerala’* the constitutionality of Travancore
Christian Succession Act, 1992 was challenged on grounds of right to
equality in view of denial of right of intestate succession for daughters
and recognition of limited right of life estate to widows of deceased
Christian males whereas in other parts of Kerala Indian Succession
Act, 1925 had provided for equal rights for women. The Supreme
Court interpreted Part “C” States Act, 1951 to the effect that there was
40 S118 ISA, 1925, which is applicable only to Christians as per S. 58 had stated,
“No man having a nephew or niece or any nearer relative shall have power to bequeath
any property to religious or charitable uses, except by a will executed not less than fi
months’ before his death, and deposited within 6 months’ from its execution in some
place provided by law for the safe custody of the will of living persons.”
141 By unreasonable classification between Christians and non-Christians; between
and
testamentary and other dispositions; between religious and charitable purpose
not having relative; and
other purposes; between persons having relative and those
. |
between persons dying within 12 months’ and others.
John, “Succession Law in
142 (1986) 2 SCC 209: AIR 1986 SC 1011; See also, Thomas
y: The Experi ence of Mary Roy v.
India and Obstacles in the Road to Gender Equalit
38 at p. 57.
State of Kerala, (1986) 2 SCC 209 Student Bar Review
Family Law, Modernisation and Social eTransformation
742 ee
ee
ee
out deciding
repeal of TCSA and that ISA, 1925 was applicable. With
licable and
the constitutionality of the TCSA, the Court held it as inapp
ensured gender justice.
16.10 Children’s rights and welfare

Promotion of the best interests or welfare of children is one of the
paramount policies of family law sensitised by human rights and wel-
fare goal. Friedmann writes, “Inevitably, the transformation in the
economic and social conditions of the modern family has profoundly
affected the legal relationships between parents and children.” One
such change, according to him, is the replacement of the more or less
absolute powers of the father, based on property rights, by broader
moral and legal responsibility towards his children. Elevation of the
position of woman and the enhanced state’s role in welfare of children
have also contributed to the change.
The legal position of children in ancient Indian period had itself
undergone change as can be seen in the matter of adoption and owner-
ship of property earned by children, and in the recognition of parental
duty. There was controversy amidst the text writers and commenta-
tors about the issue whether children could be given in gift or be sold.
While Vasishta was conceding near absolute power of parents in this
matter (except in case of sole son), Yajnavalkya and Narad denied such
power even at the time of d’stress."# Katyayana considered adoption as
a distinct form of gift enabling fulfillment of religious objective, which
should not be made against the wishes of children. Both Vijnaneswara
and Jimutavahana decline to include son in the list of properties that
could be gifted. Nilakantha and Purvamimamsa condemn the prac-
tice of gift or sale of children.’4* The middle path emerged was recog-
nition of adoption as special type of gift for religious purpose, at the
time of distress and with the consent of all the parties. The elevation
of the position of adopted son to that of aurasa son through religious
ceremony had its impact upon property relations also. Compared to
an earlier view that religious salvation could not be attained through
a son other than aurasa son, this standpoint is reasonable. Wife’s right
to give or take a son in adoption with the consent of the husband has
made her a role player. Another aspect concerning which social change
occurred is about the entitlement to the property earned by children.
While Manu regarded that such wealth belonged to the father, to
whom the son belongs, later commentators have explained the text as
"3 W. Friedmann, cp. cit., at p. 206.

‘4 Alladi Kuppuswami, op. cit., at pp. 327-29.
TOA:
Children’s rights and welfare 743
a
not depriving the ownership of the son but only speaking about
the
lack of unfettered control over it. Dayabhaga confers a share in such
property upon the father. Mitakshara distinguishes between property
acquired by application of paternal estate and that without it, and con-
cedes absolute right only in the matter of self-acquired property. When
girl acquires any property by performance of her learning or by gift,
the property is stridhana over which she has the sole right.14
Duties of parents and instructors towards children, laid down in
shastrik texts, have also aimed at child welfare. Father had the duty
to maintain his children so long as they were young and incapable of
supporting themselves. He had the duty to pay off the debts incurred
by the son. It was the duty of the father to maintain and educate the
daughters, and give them in marriage before they attain puberty to
suitable bridegrooms. The Instructor had the duty of treating the
apprentice with affection as if he were his own son, and not to make
him to do any work other than the one, which the latter was seeking
to learn. Thus orientation towards love and eschewing of exploitation
was the major ethos of ancient Indian legal policy towards children.
During the colonial period, the regional diversity about adoption
rules—who may be taken in adoption, by whom, by what means and
with what consequence—was continued. Whether adoption shall be
from the close relative circle, whether a married person, orphan or
daughter could be adopted and what ceremonies shall be undergone
were questions answered differently in different schools of Hindu Law.
The Hindu Adoption and Maintenance Act, 1956 brought considerable
change in the law in addition to codification. Unlike the earlier position,
a person under the age of 18 years’ cannot adopt; a married man can-
not adopt without the consent of his wife unless coming under excep-
tional circumstance (Section 7); an adult female, who is not married, or
whose marriage is dissolved or whose husband is dead, or of unsound
mind or ceased to be Hindu or relinquished the world can adopt a son
or daughter (Section 8). Going contrary to the past rule, restrictions
against adoption of daughter, orphan, illegitimate boy, disabled per-
son, or persons from different caste are removed (Section 10). No boy
or girl who is married or who has completed the age of 15 years’ can
be adopted unless custom or usage permits such adoption. The earlier
practice of allowing natural father to give his child in adoption with-
out the consent of the mother is done away with. Guardians are also
authorised to give a child in adoption with the previous permission
of the court when both the father and mother are dead or renounced
the world or abandoned the child or declared to be of unsound mind
146 Alladi Kuppuswamy, op. cit., at pp. 646-50.

e
e
m age differ-
or where the parentage of the child is not known. Minimu
ence between adopter and adoptee is newly prescribed.
for
The requirement of holding datta homam, which was essential
image
adoption among Dwijas, is now removed, and thereby secular
is attributed to adoption. But performance of the ceremony is so com-
mon in particular communities that absence of datta homam has given
rise to legitimate ground of suspicion. Since there is denial of scope
to cancel adoption by any of the parties under Section 15, and hence
enduring relation on expected lines is contemplated, the psychological
support arising from ceremonies like datta homam, in fact, strengthens
the legal intention. Tradition need not be characterised as an enemy of
modernity.
Further, Section 17 of:the Act prohibits and penalises any commer-
cial transaction in the matter of adoption. However, contracts against
disposal of property adversely affecting the adopted son’s interests
could be there in view of Section 13. Regarding the effect of adop-
tion under Section 12, the Supreme Court has followed a pro-child
approach by holding that the son adopted by a widow would be heir
of deceased husband also. It is significant to note that the interests of
adopted children are protected by enhancing the rights of females. It
has been pointed out by N. Balu that by introduction of the factor of
caste in the matter of effect of adoption, courts have digressed from
the letter and spirit of the adoption law."47
The practice of adoptixn amidst non-Hindus is governed by the
Guardians and Wards Act, 1890 under which guardians appointed by
the courts initiate the process of adoption by approaching the Court
for permission. The Supreme Court, in Lakshmi Kant Pandey‘ laid
down mandatory guidelines to be followed in case of inter-country
adoption in order to eschew commercialisation and ensure maximum
welfare of the child. Aiming at removal of loopholes in the existing law,
the Juvenile Justice (Care and Protection of Children) Act, 2000 pro-
vides that adoptions shall be resorted to for the rehabilitation of such
children as are orphaned, abandoned, neglected and abused through
institutional and non-institutional methods. The Board established
under the Act has power to give children in adoption as per the guide-
lines issued by the government.’ In Muslim Law, the rules relating
to acknowledgment of paternity comes to the rescue of some class of
abandoned children.
'” N. Balu, “Adoption: Some Unresolved Issues” (2003) 45 JILI 537 at p. 552.
“8 Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244: AIR 1984 SC 469.
'? See supra, Ch. 14; see also, Vibha Sharma, “Inter-country Adoptions in India — An
Appraisal” (2003) 45 JILI 543.
Children’s rights and welfare 745
ee
The concern of family law relating to the guardianship of children
is
supported by human right considerations also. Traditional Hindu Law
and Muslim Law reflect male domination in the matter of guardian-
ship of the minor in respect of either person or property. Ordinarily,
mother’s right to custody of the minor until the minor completes the
age of five years’ under Hindu Law, and seven years under Muslim
law, is recognised. Under Muslim Law, minor girl’s custody is vested
with mother until she attains puberty. Section 6 of the Hindu Minority
and Guardianship Act, 1956 provides that the natural guardians of a
Hindu minor, in respect of the minor’s person as well as in respect of
the minor’s property (excluding his or her undivided interest in joint
family property), are:
(a) in the case of a boy or an unmarried girl—the father, and after
him, the mother provided that the custody of a minor who
has not completed the age of five years’ shall ordinarily be
with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmar-
ried girl—the mother, and after her, the father;
(c) in the case of a married girl—the husband.
However, persons ceased to be Hindus or renounced the world are not
entitled to act as natural guardians. Regarding the right of mother to act
as guardian during the lifetime of husband, judiciary had opportunity
to interpret in few cases. Reaffirming the principles laid down in ear-
lier cases and reasoning under the light of right to equality and human
rights principles, the Supreme Court observed in Gita Hariharan:
“In the context in which it appears in Section 6(a), it means ‘in the
absence of’, the word ‘absence’ therein referring to the father’s absence
from the care of the minor’s property or person for any reason whatever.
If the father is wholly indifferent to the matters of the minor even if he is
living with the mother or if by virtue of mutual understanding between
the father and the mother, the latter is put exclusively in charge of the
minor, or if the father is physically unable to take care of the minor
either because of his staying away from the place where the mother and
the minor are living or because of his physical or mental incapacity, in
all such like situations, the father can be considered to be absent and the
mother being a recognised natural guardian, can act validly on behalf
of the minor as the guardian.”*°
Gender justice helping the cause of minor children is a modernist
method of effectuating the traditional ethos of holding the child's right
as requiring paramount attention and consideration.'*' Judiciary has
1999 SC
1590 Per Dr. A.S. Anand, CJI in Githa Hariharan v. RBI, (1999) 2 SCC 228: AIR
;
1149.
with
51 UC, Banerjee, J. observed, “Though nobility and self-denial coupled
past and the cry for
tolerance mark the greatest features of Indian womanhood in the
ie ee
acted with great concern for children when the property belonging to
the minor is put to loss. The human rights approach has made the law
humanist.
16.11 UCC debate revisited: what next in the law?

Although Article 44 does not hint at the features of future civil code
nor does it say whether uniformity of civil law is to be attained at
a stretch or by piecemeal reforms, by reading Article 44 along with
Articles 14, 15(3), 21 and 51-A, it can be gathered that Uniform Civil
Code is aimed to solve the problem of diversity of personal usages in
different parts of India and the problem of gender discrimination. In
brief,itsemphasis is on-uniformity with gender justice. Since justice
has common traits to all communities, aiming to ensure it in each per-
sonal law becomes good strategy for bringing uniformity.
The approach of Government on UCC has largely looked to the
preparedness of specific communities for bringing reforms. Nehru
viewed, “When you talk about legislative changes in a democracy, you
necessarily take into consideration the fact that the people have been
brought up to the required level... a very large section of the people
must also accept it or at any rate, actively or passively, be ready to
accept it”. When the Hindu community was ready to accept reforms,
law’s surgical instrument was employed. He ruled out imposition of
UCC upon Muslims because of lack of preparedness on their part, and
he said, “Now, we do not dare to touch the Muslims because they are
in minority and we do not wish Hindu majority to do it. These are
personal laws and so they will remain for the Muslims unless they
want to change them.” Thus politically, the question was, whether
the cultural community or state should initiate and author the change.
Nehru’s view that “India must break with much of her past and not
allow it to dominate the present’*5 had serious limitation. The response
of the Government in post-Shah Bano euphoria was to restore back the
traditional Muslim law, even by passing a statute to that effect. The
judicial appeal in Sarala Mudgal for UCC was also played cool by the
Government. When NDA Government was formed with strong BJP
equality and equal status being at a very low ebb, but with the passage of time and
change of social structure the same is however no longer dormant but presently quite
loud. This cry is not restrictive to any particular country but world over with variation
in degree only.”
' P. Ishwara Bhat, “Pandit Nehru’s vision of social transformation through state
power” (1989) 50 Mysore University Journal (Arts) at pp. 25-40.
'8 Tibor Mende, Conversations with Nehru, at p. Si:
'4 The extreme religious reverence which some people gave to their personal laws
was completely misplaced.
UCC debate revisited: what next in the law?
e e » 747
component, the common agenda excluded implemen
tation of UCC in
order to keep the alliance. Thus, political compromises
allowed con-
tinuing the Nehruvian approach.
However, the judicial approach has been activist and
reform ori-
ented one. Court’s appeal to Parliament to enact UCC has been
seri-
ously done, and repeated several times. But, instead of creating
a posi-
tive result of changing the law, it gave rise to obstructive postu
re of
limiting the operation of reformative secular measure (Section
125
CrPC). Compared to this, the Danial Latifi judgment, which is as vital
as Shah Bano judgment, did not provoke the sentiments but protected
the feminist interests effectively by application of human rights norms.
Although there was vociferous voice for UCC raised in Saral Mudgal,
the pressure got subsided with Court's clarification in Lily Thomas case.
The separate and concurring judgment of M. Sahai, J. in Sarala has
been realistic. He said, “The desirability of uniform code can hardly
be doubted. But it can concretise only when social climate is prop-
erly built up by elite of the society, statesmen amongst leaders who
instead of gaining personal mileage rise above and awaken the masses
to accept the change.”"55
Leaving aside the issue of UCC, what the judiciary has done to
enhance the content of human rights and gender justice through inter-
pretative technique has been tremendous. Both the constitutional
provisions and international conventions were creatively applied for
a comfortable situation. It should be remembered that this is a step
ahead towards uniform principle of justice.
The intelligentsia has differing views about UCC. The majority
report of the Committee on Status of Woman expressed dissatisfaction
about failure to enact UCC in spite of laying emphasis on secularism,
science and modernisation, and recommended for expeditious imple-
mentation of UCC. The dissenting members viewed that actualities of
the social situation deviated from the ideologies, which could not be
set right by UCC alone. Werner Menski argues that, the fact that stat-
utes could not wipe off the traditional law speaks about the limits of
legal reform, and the force of tradition and pluralistic practices. In spite
of the difficulties arising from multiplicity of personal laws, plural-
ism has prevailed. Gurpreet Mahajan expressed apprehension about
loss of cultural identity of minorities due to imposition of majoritarian
155 Para 44; He said, “a unified code is imperative both for protection of the
oppressed and promotion of national unity and solidarity. But the first step should
be to rationalise the personal law of the minorities to develop religious and cultural
amity. The Government would be well advised to entrust the responsibility to the
Law Commission which may in consultation with Minorities Commission examine
the matter and bring about the comprehensive legislation in keeping with modern day
concept of human rights for women.”
P
een NO R
law and stated, “The challenge that confronts India today is how to
ensure justice for all while simultaneously retaining its multicultural
identity. And it is this concern that has prompted many, even in the
women’s movement, to argue for gender-just personal laws rather than
necessity. He regards uniformity of law as a colonial concept, and

blocking the smooth social changes through customs. He states, “Our
concern should be more for reform of the personal laws rather than”
their obliteration. Reform of the personal laws is necessary to make
them consistent with gender equality and democracy. It is the wrong
on uniformity rather than on gender justice which has made
emphasis
reformof personal law difficult.”°7
On the contrary, it is forcefully argued by Virendra Kumar that UCC
is a must and urgently needed, in view of extreme acts of change of
religions for the sake of getting the advantage of the most lenient per-
sonal law.'5® He argues that piecemeal judicial reform is no substitute
for comprehensive code since justice to all is a far more satisfactory
principle. Tracing the genesis of progressive outlook amidst Muslims
in other parts of globe as against polygamy and uncontrolled power
of talak, he points out that in view of emphatic deviation by the legis-
lature from the traditional Muslim Law, dilution of the tempo for UCC
created in Sarla Mudgal is a retrograde step."® In the context of discuss-
ing John Vallamottam pronvuncement he views, “The envisioned code
would indeed be an invaluable input for augmenting human resources
development at no expense of state resources." M.P. Jain regards the
ideal of UCC as eminently desirable to foster sense of national unity.
Because of political controversy of the subject, he considers the sugges-
tion for voluntary UCC as worthwhile proposition. Tahir Mahmood
has made a powerful plea for framing a UCC, “In pursuance of the
goal of secularism, the State must stop administering religion-based
personal laws but, we should have thought that, lead or no lead, the
"° Gurpreet Mahajan, “Indian Exceptionalism or Indian Model: Negotiating

Cultural Diversity and Minority Rights in a Democratic Nation-State” in Will Kymlicka
and Baogang He, Multiculturalism in Asia (Oxford University Press, New York 2005) at
pp. 288, 298.
'” S.P. Sathe, “The Unfinished Agenda: The Constitution at the Crossroads” (2003)
42 JILI 171 at p. 177.
8 Virendra Kumar, “Towards Uniform Civil Code: Judicial Vicissitudes” (2000) 42
JILI 314 at p. 316.
'° Ibid, at pp. 333-34.
‘© Virendra Kumar, “Uniform Civil Code revisited: A Juridical Analysis of Jolin
Vallamattom” (2003) 45 JILI 334.
'*! MP. Jain op. cit., at p. 650.
Conclusions
ee 749
CHAS NOMENON AS iimnt
State must act...Instead of wasting their energies in exerting theologi-
cal and political pressure in order to secure an ‘immunity’ for their
traditional personal law from the State’s legislative jurisdiction, the
Muslims will do well to begin exploring and demonstrating how the
true Islamic laws, purged of their time-worn and anachronistic inter-
pretations, can enrich the common civil code of India.” Mohammed
Ghouse has observed, “The Fundamental Rights available to a Muslim
wife and the compulsions of equality and social justice implicit in
those rights warrant the introduction of monogamy, regulated divorce
and maintenance of wife after divorce into the Muslim Law to save
it from being condemned as unconstitutional. The Muslims can have
no objections to such adaptations as most of them have discarded the
license to polygamy and unilateral divorce given to them."
In the light of differing views, and also consensus about need for
reforms of personal law, attempt has been made by the Bar Council
of India through a National Convention on UCC to suggest for plan
of action.** It debated on the issue of voluntary UCC and found it as
unsuitable. It recommended for mandatory UCC, subject to giving
of time concession to any section of people; for codification of tribal
personal law with appropriate changes for coming nearer to UCC; for
creation of public opinion with the involvement of legal community;
and for upholding constitutional values over personal law. It is also
essential to identify ideal principles worthy of emulation in each per-
sonal law to build up UCC. More than that, the evil or unjust element
of personal law should be excluded through purging process.
16.12 Conclusions
A loving family is the greatest rejuvenating force. Law’s effort to sup-

port such an atmosphere through fair principles by blending tradition
and modernity, and giving best of the both, is a laudable task. The
human rights principles and welfare goals have sensitised the proc-
ess of transformation. The constitutional orientation to fair personal
law system is traceable to its major thrust on social justice and human
dignity. While the legislative efforts to reform personal law on these
lines had not been supported by political will and society's willing-
ness, the piecemeal reforms did contribute to a legal development that
combines tradition with modernity. True to its activist approach of
social engineering, judiciary has done its best by infusing the human
rights values and welfare policy into family law. Its approach is prag-
12 Tahir Mahmood, Muslim Personal Law (1977 Edn.), at pp. 200-02.

(1978) at p. 232.
163 Mohammad Ghouse, Secularism, Society and Law in India
164 Indian Bar Review (1991) 18 at pp. 3 & 4, 291-94.
matic by taking into consideration the aspects of social acceptability

in exceptional circumstances as that of tribal community. The fact
that it has abstained from issuing mandate to legislature for enacting
UCC shows the inherent difficulty involved in bringing uniformity
in a pluralistic system. In the words of Werner Menski, judiciary has
rendered situation-sensitive justice in a culture-specific circumstance.
The trend of overall development has been towards coming nearer to
fair family law system with common principles of human rights and
welfare rather than a bulldozing and full-fledged UCC. The difficulty
in bringing changes in culture-based law is crystal clear.
CHAPTER 17
ES Se Ray Era err ee e ee
ECONOMIC DEVELOPMENT, LAW

AND SOCIAL TRANSFORMATION:
FOCUS ON AGRICULTURE,
INDUSTRY, AND ENVIRONMENT
17.1 Introduction
Economic development is a key factor for heralding social transforma-

tion. Law plays crucial role in this context by influencing and determin-
ing economic policies at various levels such as production, distribution
and consumption. With regard to material resources of production
such as land, labour, capital and enterprise, and upon consequences of
economic processes touching upon various sections of society also, its
indelible impact can be found. Going beyond wealth maximisation and
mere economic growth, making the advantages of economic develop-
ment available to all citizens and building the capacity of community
as a whole to have access to basic necessities of life is an imperative of
economic development. Situations of penury, economic helplessness
and incapacity to have access to good things of life sap the human con-
fidence, forcing in extreme circumstances to commit suicide or suffer
starvation death. Nothing could be more shameful to humanity than
this. Avoidance of this position is one of the greatest responsibilities of
a welfare state. As the Supreme Court has observed in Paschima Banga",
“In a welfare state the primary duty of the Government is to secure the
welfare of the people.” A.C. Pigou has said, “The welfare State is one
that endeavors to promote the economic satisfaction of its citizens. ..by
stimulating production, improving the allocation of real income, and
1 Paschim Banga Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37: AIR 1996 SC
2426.
on
752 Economic Development, Law and Social Transformati
aay
ee NS
A
to promot
combating large inter-temporal fluctuations.” In addition
on regard-
ing social equity, respecting the claims of future generati
ronmental
ing conservation of natural resources and avoidance of envi
at-
pollution is a paramount responsibility of state and society in regul
ing the economic activities. en
Indian legal system has a sound tradition of aiming at, and ensur-
ing fairness in economic activities and distribution of their outputs.
Ancient Indian philosophy of subordinating the human desires and
economic activities/property to just and fair law gave highly humanis-
tic norms for economic transactions. Kautilya’s assertion that economic
factor is of primary importance (artha eva pradhanah) is to be under-
stood as a warning to the ruler to ensure a fair position in that sphere
with utmost concern. A pro-active role of state and law in this sphere
was regarded as appropriate, and that holds good even today. As can
be recapitulated from earlier chapters, collectivist approach in the past
had established a communitarian base for, or control over property
right—its acquisition, holding and marketing—and social control on
varieties of economic processes connected with it? Indian cultural
ethos believed in interests of justice as the basis for property. This nec-
essarily involved distribution, work and sacrifice as the only justifica-
tions for entitlement to property,4 and avoidance of unjust enrichment
and undeserved misery as the duty in its use’ With the colonial legal
system's introduction of intermediary system in land holdings, and
other mercantile practices‘ that aim at profit enhancement, economic
imbalances had a far-reaching adverse impact on capability of the
poorer sections.® The efforts of Constitution Makers to set norms for
controlling abuses of property rights and for expanding opportunities
of economic well-being reflect definite strategies and parameters of
social transformation” The growing concern for environmental pro-
tection has also influenced the patterns of economic development.
In this chapter an attempt is made to identify the legal system’s
approach in the matter of economic development; to assess the param-
eters and thrusts of economic development; to survey the “social trans-
formation” dimensions of law on agricultural and industrial develop-
ment; and to evaluate law’s preparedness and efficacy in balancing
economic development with environmental protection. The suitability
? AC. Pigou, Economic Aspects of the Welfare State in Great Political Thinkers (2nd Edn.,
1956) at pp. 814-15.
> See supra, Ch. 2.
* Ishopanishad, Verse 1.
° P. Ishwara Bhat, “Protection against unjust enrichment and undeserved misery
as the essence of property rights jurisprudence in Mitakshara” (2006) JILI.
° See supra, Ch. 2.
” See supra, Ch. 4.
Theoretical underpinnings of economic development
ei e eeaee mic LU 783
of “conflict”, “consensus” and “integrated” models of social change in
this particular legal regime will be highlighted.
17.2 Theoretical underpinnings of economic development and

economic justice
Economic analysis of law has widened the understanding about
human behaviour in relation to economic processes and entitlements
and suggested ways of improvements.’ As a corollary, law’s position
as a policy instrument influencing economic activities and patterns
of distribution of their gains has also its own consequence. Marxian
idea of economic determinism had taught about the foundational
factors of legal system that reflected in economic reality and aspira-
tions. Bentham’s proposition of utilitarianism spoke about the worth
of maximum happiness of maximum numbers and civil law’s aim at
security, abundance and equality” The calculus of pain and pleasure
had also influenced the growth of law. Vilfred Pareto considered a
state of affairs as optimal if it could not be changed without making
at least one person worse off; and it was superior to another state of
affairs, if it made at least one person better off and no one worse off.°
Ronald Coase propounded economic theory of law: (i) the law, to the
extent interested in promoting economic efficiency, should minimise
the transaction costs, for example, by defining property clearly, by
making them readily transferable, and by creating cheap and effective
remedies for breach of contract; (i) where, despite the law’s best efforts,
market costs remain high, the law should stimulate the market's allo-
cation of resources by assigning property rights to the highest value
users." Coordination with equal rights of others adds to efficiency of
law.
Gandhiji had said, “That economics is untrue which ignores and
disregards moral values... True economics never militates against the
highest ethical standards, just as all ethics to be worth its name must at
the same time be also good economics. All economics that inculcates
Mammon worship and enables the strong to amass at the expense of
the weak is a false and dismal science. It spells death. True economics
8 Richard Posner, Frontiers of Legal Theory (Universal Law Publishing Co., New
Delhi 2006) at p. 35. 82 25
° Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Ed.),
é
(Burns and Hart).
” Jeffry G. Murphy and Jules L. Coleman, Philosophy of Law (Oxford University
.
Press, New Delhi 1990) at pp. 182-86.
and Economics
1 Ronald Coase, “The Problem of Social Cost” (1960) 3 Journal of Law
at pp. 187-07; Robert Cooter and Thomas Ulen, Law &
3 at p. 1; Jeffry G. Murphy op. cit.,
n, 2004 Indian rept. EBC) at pp. 85-91.
Economics (4th Edn. Pearson Educatio
754 Economic Development, Law and Social Transformation
preached
stands for social justice; it promotes the good of all.”"* He
wastage
bread labour theory, equal dignity of all types of labour, non-
of money and promotion of charity.? Avoidance of income disparity
‘s the means of eradication of poverty. He did not find the conflict
between labour and capital as something irresolvable, as labour itself
was unit of capital. Harmonious relations between labour and capital,
and between tenant and landlord were essential to avoid exploitation.
The rich, the capitalist and employer had to act as trustees of the prop-
erty or means of production without amassing the whole profit unto
themselves but sharing with others concerned with production or
consumption. Any possession of wealth beyond one’s immediate was
theft. What Gandhiji propounded was reminiscent of Indian cultural
ethos expressed in classic and regional literature. Basaveshwara had
viewed that honest work (kayaka) was a self-reliant and self-respect-
ing means of attaining property, and that sinner’s wealth was fit only
for penalty and not for righteous utilisation.’* He regarded that work
with pure mind replaced greed, and facilitated charity. It was a way to
social treasure."
The idea that economic development’s concern should not be solely
wealth maximisation but should help the society as a whole in eleva-
tion from poverty has been emphasised ‘by contemporary thinkers
and writers also. According to Manmohan Singh, “Development is not
just about our increasing the rates of growth, but fundamentally it is
about translating this into improving the quality of life of our peo-
ple to lead a life of dignity and self-respect. It is about increasing our
people’s access to such basic needs as nutrition, health, education and
gainful employment... Ensuring economic security, food security and
social justice have been the underlying principles that have guided
our development process for many years.” He regards that the rights
approach in the matter of education, employment and information has
great potentialities, which ought to be supported by corruption-free
administration and by the civil society.
Propounding the concept of development with dignity, Amit
Bhaduri wrote, “...the development process that we must strive for,
is not simply a higher growth rate; nor should it mean simply an
2 Harijan, 9-10-1937.
8 See supra, Ch. 3.
'* Siddayya Puranik, Human values in Vachana Literature (Bharatiya Vidya Bhavan,
Bangalore 1997) at pp. 22-31.
'S IfIsee a doing and donating devotee,
Ifeel I have seen a treasure...Lord of Kudala Sangama Siddayya Puranik, op. cit., at
pp. 24-25.
‘© Manmohan Singh, “Realisation of Human and Legal Rights of the People—Role
of NALSA” (2007) 5 Nyayadeep 7: 1.
Theor
ET etica
ae al a
underpinnings of economic development
ae aN cd TOD
elaborate bureaucratic mechanism for income transfer
to improve the
distribution of income in favour of the poor. It has to be
viewed from a
different perspective altogether in which growth and distr
ibution are
integrated into the very same process, while breaking systematic
ally
the social barriers of discrimination and prejudices based on gende
r,
caste, language, religion or ethnicity.” He prefers to find solutions
in
the efficient functioning of five-layered democracy than either in pri-
vatisation or in patron-client relation between state and citizen.® The
bureaucratic planning and implementation from the top without look-
ing to the suitable local conditions has failed, and local participation is
a must for development with dignity, he viewed.
Amartya Sen has pointed out that distancing economic development
from ethics impoverishes welfare. Development saves from the situa-
tion of “unfreedom” that denies basic necessities of life, and expands
scope for human choice."® Upendra Baxi links development with human
rights and lists the circumstances which influence development: colo-
nial and cold-war exploitation; cultural diversity; demographic factor;
access to natural resources; structure of government; national security
issue; national debt burden; unequal or adverse international trade;
extent of social conflict and collective violence and state’s reaction to
it; vulnerability to super power; scope for free discussion; and spread
of human rights awareness and culture.?? The positive and negative
factors involved in these matters facilitate or obstruct, as the case may
be, the developmental process.
The discourse on economic development raises the issue of economic
justice. The latter connotes fairness in property relations; non-exploita-
tion by use of economic power; and equitable distribution of material
resources of production resulting in reasonable access to basic neces-
sities of life for all. Genesis of property is traceable to embodiment
of economic value in it." It became a convenient method of economic
transaction. Property’s basis in labour, investment, relationship and
expectations of security stimulated the decisions about economic rela-
tionship.” But as a source of economic power, property used to wield
both positive and negative effects upon considerations of human wel-
fare. It is because of social function of property, its use aspects and
7 Amit Bhaduri, Development with Dignity (National Book Trust of India New Delhi
2005) at p. 11.
8 Ibid, at p . 16, 39.
a pe Sen, Development as Freedom (Oxford University Press, New Delhi 2000)
at p. 3. Also see supra, ch. 1. atest
2” Upendra Baxi, Human Rights in a Posthuman World (Oxford University Press, New
Delhi 1997) at p. 104.
21 Robert Cooter and Thomas Ulen, op. cit., at pp. 80-84. a ;
cited and discussed in P. Ishwara Bhat, “Historical Evolution of
2 John Locke,
1.
Intellectual Property: A Focus on some themes” (2005) 1 Kant Law Journal
on
756 Economic Development, Law and Social Transformati
Rn
underwent trans-
power aspects, that the status and image of property
”
formation in the course of human development.
mative role to
This entails the view that government has an affir
the opportu-
play: that of creating the conditions which will maximise
assuming
nity for individual income-security, while at the same time
who
the responsibility for providing that income security for those
of
cannot do so on their own. Wilhelm Ropke views that it is the fruit
a process of institutionalisation and collective organisation through
which provision against possible misfortune in the future is shifted
further and further away from the individual and closer and closer to
the public sphere of action.
The constitutional scheme on socio-economic justice has been
already discussed. Some of the judicial and academic observations
about the key concept of socialism can be presented here for under-
standing the type of orientation that economic justice envisages in the
Indian context. In D.S. Nakara v. Union of India» the Supreme Court
pointed out that the concept of Socialist Republic aimed to achieve
socio-economic revolution to end poverty, ignorance and disease and
inequality of opportunity. A socialist State’s objective is to eliminate
inequality in income and status and standards of life. The basic frame-
work of socialism is to provide a decent standard of life to the working
people especially to provide security from cradle to grave. The less
equipped person shall be assured a decent minimum standard of life
and exploitation in any fo m shall be prohibited. There will be equita-
ble distribution of national cake and the worst off shall be treated in
such amanner as to push them up the ladder. The Preamble directs the
centres of power, —legislature, executive and judiciary—to strive to set
up from a wholly feudal exploited slave society to a vibrant, throbbing
socialist welfare society under rule of law though it is a long march. In
Samatha v. State of A.P.2* K. Ramaswamy, J. observed, “A socialistic soci-
ety involves a planned economy which takes note of time and space
considerations in the distribution and pricing of output. It would be
necessary for both the efficient working of socialist enterprises and
the prevention of unplanned and anarchical expansion of private
* P. Ishwara Bhat, “Tracing right to property in the bosom of right to life and
personal liberty: Comparative reflections on recent constitutional developments in
America, Canada and India” (1996) 38 JILI at pp. 13-38.
4 Wilhelm Ropke, Welfare, Freedom and Inflation (1957) at p. 14.
® (1983) 1 SCC 305: 1983 SCC (L&S) 145: AIR 1983 SC 130 at pp. 138-40.
6 (1997) 8 SCC 191. He also observed, “It abhors violence and class war and
hierarchical class structure and pins as faith on non-violence, sacrifice, and dedication
to the service of the poor and as anatural consequence, its implementation is envisaged
through parliamentaiy democracy planned economy and the rule of law rather than
through a violent revolution or a dictatorship in any form. Indian socialism, therefore,
is different fron: Marxist or scientific socialism.”
Theoretical underpinnings of economic development 757
a
enterprises. The Indian conception of socialism with democracy with
human dignity is by creation of opportunities for the development
of each individual and not the destruction of the individual. It is not
for the merging of the individual in the society. The Indian socialist
society wants the development of each individual but requires this
development to be such that it leads to the upliftment of the society as
a whole.”
The Third Five Year Plan document distils the basic features of the
socialist pattern of society thus:
“Essentially, this means that the basic criterion for determining lines
of advance must not be private profit, but social gain, and that the pattern
of development and the structure of socio-economic relations should be
so planned that they result not only in appreciable increase in national
income and employment but also in greater equality in incomes and
wealth...The benefits of economic development must accrue more and
more to the relatively less privileged classes of society, and there should
be progressive reduction of the concentration of incomes, wealth and
economic power...The accent of the socialist pattern of society is on the
attainment of positive goals, the raising of living standards, the enlarge-
ment of opportunities for all, the promotion of enterprise among the
disadvantaged classes and the creation of a sense of partnership among
all sections of the community.’”7
Jawaharlal Nehru, while participating in the discussion on the
Constitution (First Amendment) Bill, had stated that the Directive
Principles are intended to bring about a socio-economic revolution and
to create a new socio-economic order where there will be social and
economic justice for all and for everyone, not only to fortunate few but
also the teeming millions of India who would be able to participate in
the fruits of freedom and development and exercise the fundamental
rights.?® V.K.R.V. Rao, an eminent economist, has stated that a socialist
society has not only to bring about equitable distribution but also to
maximise production. It has to solve problems of unemployment, low
income and mass poverty and bring about a significant improvement
in the national standards of living.? Socialism, therefore, requires
deliberate and purposive action on the part of the State with regard to
both production and distribution and the fields covered are not only
savings, investment, human skills and use of science and technology,
but also changes in property relations, taxation, public expenditure,
education and the social services. A socialist society is not just a give-
It
away society nor is it only concerned with distribution of income.
productivity.
must bring about full employment as also an increase in
SCC 191.
2 Referred in Samatha v. State of A.P., (1997) 8
8 Ibid.
at p. 46.
2 V.K.RV. Rao, Indian Socialism Retrospect and Prospect,
758 Economic Devel opment, LawAEEand Social Transformation
a e nade ake he tS inl
rship
There is also a view that socialist state stands for total state owne
Indian
of all properties?° although such version is not realistic about the
position. G.D.H. Cole, one of the leading socialist of UK, has stated that
socialism is a movement aiming at greater social and economic equal-
ity and using extended State action as one of its methods, perhaps the
most distinctive but certainly not the only one needed to be taken into
account3" Socialists seek to reduce economic and social inequalities
not only in order to remove unearned sources of superior position and
influence, but also in order to narrow the gaps between men to such
as are compatible with all men being near enough together in ways of
living to be in substance equals in their mutual intercourse.
Although the above values sound as ideologies that are given low-
key treatment in the liberalised economy, their relevance from the
angle of welfare function of the state can hardly be ignored. They set
standards with which the present economic attainments or pathetic
situations can be compared. In fact, implementation of these ideolo-
gies requires state-initiated radical legal policy executed with all delib-
erate speed and determination, but without loopholes or obstacles. But
consensus cannot be expected for dissolution of privileges.
17.3. Modernisation, agriculture and law: agrarian reforms

Agriculture is a predominant sector in the Indian economy. Social
transformation in this sph<re is vital in the interests of the economy
and population as a whole. Realising that widespread poverty in the
country has its roots in agricultural stagnation, Jawaharlal Nehru
remarked, “everything else can wait, but not agriculture” State’s
activist role, policies and programmes have built a favourable atmos-
phere for agricultural development with economic justice. In 1947,
agriculture contributed approximately 55 per cent of the GDP and
livelihood for 70 per cent of the workforce of the country23 Although
* P.B. Sawant, Socialism under the Indian Constitution, at p. 2, “In a socialist society,
social, political and economic inequalities disappear and none is allowed to possess
economic power to the extent that he is in a position to exploit or dominate others. It is
only such society which can guarantee human dignity, stability, peace and progress.”
3! G.D.H. Cole, “The Growth of Socialism” in Morris Ginsberg (Ed.), Law and
Opinion in England in the 20th Century at pp. 79-80. This idea of socialism involves
not only the socialisation of the essential instruments of production, in the widest
sense, but also the abolition of private income which allow some men to live without
rendering or having rendered any kind of useful service to their fellowmen and also
the sweeping away of forms of educational preference and monopoly which divide
men into social classes.
* Independence Day speech 14-8-1947 to 15-8-1947, cited in M.S. Swaminathan,
“Overcoming Land, Water Shortage” Survey of Indian Agriculture (The Hindu,
Chennai 2006) at p. 10.
* Ramesh Chand, “Overview” in Ramesh Chand (Ed), India Agricultural Challenges
Modernisation, agriculture and law: agrarian reforms
cage ee a 759
SEE EES EURO INU SSSR ti ca ad
the GDP contribution dwindled into 25 per cent at present, the popula-
tion dependent upon agriculture is above 60 per cent3+ The extent of
people below poverty line in this sector is considerably high in spite of
the fact that the foodgrain production has shown a big progress from
55 million tonnes to around 210 million tonnes25 There is also expo-
nential development in the production of plantation crops, and in the
sector of dairy and poultry farming. Agri-based industries thrive with
flourishing agriculture. The contribution of law in helping the policy
initiative for land reforms, irrigation, cooperative credit system, protec-
tion against usurious loan and market regulation has been enormous.
The objective of modernisation of agriculture and animal husbandry
on scientific lines is contemplated in Article 48 of the Constitution. In
recent days, seeds law and plant varieties law have also tried to help
the farmer. Law on agricultural marketing has made distinct contribu-
tion. The WTO commitments have also posed tall challenges. National
agricultural policy has guided the state-farmer relation. Waiving of
the farm loan and extension of the rural employment guarantee are
other measures employed to protect the interests of farmers and agri-
cultural labourers. The whole discussion on the subject will be con-
ducted in two broad sections: agrarian reforms (in the present section)
and industrialisation of agriculture (in the next section).
17.3.1 Land reforms: the policy

Land reforms involve specific programmes for bringing effective con-
trol and use of land by redistribution of agricultural land among exist-
ing or future owners for the benefit of agricultural population. Passing
the power, property and status from one group to another, it aims at
revolutionary change2° Since agrarian structure in India was influ-
enced by factors such as social hierarchy of caste, economic disparity
and political patronage, bringing social transformation through land
reforms had serious and inherent limitations. As will be discussed,
this could not be satisfactorily overcome due to lack of political will
and determined action.
Agrarian structure in ancient India was based on the direct rela-
tion between the cultivator and the king. The former had the duty of
(Centad, New Delhi 2001) at pp. 1-2.
in Ramesh Chand (Ed.), op. cit.,
4 Ramesh Chand “India’s new Agricultural Policy”
at p. 19. .
2006) at p. 64.
tSIndia (2006 Publications Division, New Delhi, may claim
ing the obviou s, one
% Simon Kuznets viewed, “At the danger of stress
ution —a marke d rise in the productivity per worker in
that an agricultural revol
revolution in any part of the world.
agriculture is a precondition of the industrial
Glence 1960) at pp. 59-60 cited in KC.
Six Lectures on Economic Growth (Free Press, p. 315i
rn Book Co, Lucknow 1998, 2002) at
Gopalakrishna, Legal Economics (Easte
a
paying one sixth of the gross produce from his land to the king in
consideration of protection offered by the king?’ Itis only in the matter
of lands granted to the scholars, courtiers and officials or servants of
the crown that intermediaries prevailed. Due to shunning of physical
labour by upper caste, the practice of letting the land to sharecroppers
came into vogue in course of time. During the medieval period, the
state’s revenue claim was doubled to one third, and gradually direct
collection system was abandoned, giving way for collection of reve-
nue through the village headman, Jagirdars, and ruling chiefs. Such
revenue collectors were called Zamindars. Collection of exploitative
share and remitting of the paltry amount to the king made them eco-
nomically strong and politically powerful?* The East India Company
began its Indian venturé with the purchase of zamindari rights. The
Permanent Settlement of 1793 fixed the state revenue to be collected by
Zamindars and apportioned a share of one-tenth of it to them for the
collection2? They were declared as proprietors of the land from which
revenue was collected. The devastating consequence was that millions
of raiyats enjoying permanent and heritable rights were reduced to the
status of tenants-at-will; and mere tax collectors became landowners,
upon whose mercy the raiyats’ interests hung. It gave rise to socio-
economic transformation of rural society into large mass of impecu-
nious, submissive and insecure tenants upon whom a small number
of Zamindars used to inflict severe inequities and indignities.? The
intermediate interests crez.ted between Zamindars at the top and actual
cultivator at the bottom deepened the misery of the latter. While the
Permanent Settlement applied to Bengal and Madras, in other parts of
the British India diverse intermediary systems dominated by Jagirdars,
Talukdars, Malguzars and Janmies prevailed, in nature similar to that
of Zamindars. In addition, there were Ryotwari settlements under
which every raiyat (tenant of the state) was, in principle, free to hold or
relinquish his holding subject to annual payment of revenue fixed by
the Government. But, in practice, the raiyat used to lease the land to
under-raiyat for actual cultivation. These systems resulted in absentee
landlordism, rack-renting, usurious loans, unreasonable evictions and
economic serfdom of tenants.
The Bengal Tenancy Act, 1859 attempted to protect against vexatious
enhancement of rents and arbitrary ejections. This law was extended
to other provinces. For helping the non-occupancy cultivators, another
Tenancy Act was passed in 1885. The law did not help sharecroppers
” P.S. Appu, Land Reforms in India (Vikas Publishing House, New Delhi 1996) at
pp. 1-2.
* Ibid, at p. 7
* Ibid, at pp, 9-10.
* Ibid, at pp. 50-52.
Sor et vee edie ai On oat rr 761
who had been subject to severe exploitation." The Bomb
ay Land
Revenue Code, 1879 recognised the landlord-tenant relations, and
tried to regulate the status of the tenant and his liability to pay
rent,
unless the landlord opted to exercise customary right of enhancin
g
the rent or of evicting the tenant. In practice, it did not give any effec-
tive protection.
The Champaran movement and the national movement for free-
dom inspired the leaders to look into the ground realities and agi-
tate for protection of the peasants. The Congress and Kisan Sabha
Conference, 1935 asserted the demand for the system of peasant pro-
prietorship under which tiller of the soil alone was to be its owner.
The Congress resolution of 1936 laid emphasis on the reduction of rent
and land revenue, abolition of illegal levies and redemption of debts.
The tenancy laws of 1939 and 1947 gave limited security of tenure to
the tenants of Zamindars who paid land revenue exceeding Rs 250.
After Independence, the Congress Agrarian Reforms Committee (1949)
headed by J.C. Kumarappa recommended for abolition of zamindari
and other intermediaries, for tenancy reforms and for imposing ceil-
ing limits on agricultural holdings.“ The developments around these
three strands constitute the story of land reforms.
17.3.2 Abolition of intermediaries

At the time of Independence, the zamindari system covered 57 per cent
of private land-holdings, and its incidence varied from state to state. In
addition to paying an average of 40 to 60 per cent of the crop as rent, the
cultivator was compelled to pay illegal exactions and meet unreason-
able demands of the Zamindar. Unearned wealth, collusion with colo-
nial rulers and exploitative social status on the part of Zamindars had
incurred public wrath. The bulk of rural population had actively par-
ticipated in mass movements, and looked for relief from their burdens.
The economic and social content of freedom struggle included protec-
tion of tenants from exploitations.*’ The Indian National Congress reit-
erated in 1947 and 1948 that all the intermediaries between between the
tiller and the State should be eliminated. The popular governments at
provinces attempted drafting of Zamindari Abolition Bills. By the end
41 : te
i “ a en eae oe Reforms in Maharashtra” in Ghanshyam Shah
and D.C. Sah (Ed.), Land Reforms in India, Vol. VIII (Sage Publications, New Delhi 2002)
at pp. 39, 43.
44 PS. Appu, op. cit., at pp. 53-54.
44. ;
= ee ee: Glimpses of World History JNMF and Oxford University Press,

New Delhi 1934, 1999) at pp. 717, 726.
762 Economic Develset formation
opment, Lawiand Sociali Transet
eae inn
abolishing
of the First Five Year Plan, all the states had enacted laws
intermediary interests.
The U.P. Zamindari Abolition Act, 1951 did away with zamindari
and created four types of rights in land: Bhumidars, Sirdars, Asamis
and Adivasis.4* Bhumidars were given absolute rights over the land
\
held by them as former primary tenants. Fourteen million superior

tenants got benefits from this measure. The occupancy tenants, ten-
ants at fixed rates, hereditary tenants and rent-free grantees were given _
Sirdari rights, viz. right to occupy and cultivate without the power of
alienation. Asami rights to occupy and cultivate land (groves, pastures,
land covered by water or forest) were conferred upon the tenants and
sub-tenants. The tenants-at-will on the home farms of Zamindars were
given right to occupy the land for five years’, and in case of contin-
ued possession even beyond that period, absolute rights over them by
paying the prescribed compensation. Secondly, the Act recognised the
rights of ex-intermediaries to continue to own and possess lands under
personal cultivation (Khud kasht) and home farm (sir) without ceiling
limit. As a result, 2 million ex-intermediaries acquired absolute rights
over 6.8 million acres of agricultural land.4”7 This had negative impact
because vast land had been claimed under this exception clause and
the spirit of land reform could not be carried to full effect. Thirdly,
the law provided for graded rehabilitation grants to ex-intermediaries.
Data shows that it was a generous treatment of Zamindars. Finally, the
Act prohibited fresh leasing out of land.
Similar policy was the core of laws enacted by states such as Bihar,
Madhya Pradesh, and Rajasthan. In West Bengal, Assam, Hyderabad,
Jammu & Kashmir, ceiling limit was imposed on home-farm holdings
of ex-intermediaries.4* However, but the ceiling limit varied not only
from state to state but also on the basis of class of land. Of all the states,
it is Jammu & Kashmir which was not generous to ex-intermediaries.
Strict definition of personal cultivation (tilling with one’s own hands),
no compensation to the Zamindars, no financial burden upon ten-
ants for getting ownership and low ceiling limit of holding were its
features.
The new law that removed the parasitic intermediaries had the
credit of bringing about 25 million tenants into direct relation with the
state and preparing for improving the social and economic position
of farmers. This rendered the ownership of land more broad-based
and enhanced the social status of the erstwhile tenants. Forced labour,
agrestic serfdom and feudal remnants of unreasonable exactions got
*° PS. Appu, op. cit., at pp. 59-60.

” Ibid.
** Ibid, at p. 63.
Modernisatio
INS n, agricu ie
lture and law: agrarian reforms
atta tn 8tr 763
rd
mitigated. According to Gunnar Myrdal, it altered the rural power
structure, and enabled to develop Indian agriculture on more egali-
tarian lines with more capital input. Wolf Ladejinsky regarded it as
a step towards reconstruction of agriculture* On the contrary, the
shortcomings and obstructions were several:
(i) delay in law-making gave opportunity to evict the tenants
and claim the land as under personal cultivation;
(i) loose definition of personal cultivation, and allowing of Khud-
kasht without ceiling limit, excluded large chunk of land
ownership from reform;
(it) payment of huge compensation promoted capitalism in other
forms especially by enabling rural money lending;
(tv) reliance on administrative machinery with local and tradi-
tional officialdom who had nexus with intermediaries was
realised to be risky especially in the absence of reliable land
records;
(v) initial apathy with the intermediaries was lost with the
growth of caste-based politics, resulting in defeating the
implementation of reforms; and
(vi) unfortunately, judiciary nullified some of the provisions of
the relevant law. But legislature acted with reformative zeal,
even by providing protection through constitutional amend-
ments (by adding Articles 31-A and 31-B and Ninth Schedule)
against constitutional challenges. |
Except the Jammu and Kashmir model, none other legislation did don
the mantle of conflict model, where in fact, it was most needed."
17.3.3. Tenancy reforms

The practice of leasing out agricultural land prevailed in various parts
of India in different forms. Though Ryotwari meant peasant proprie-
torship, in actual practice, leasing out land to tenants was widespread.”
Compared to zamindari abolition law, the policy relating to tenancy
reform was not radical because of the operation of vested interests in
different forms.
The Congress Agrarian Reform Committee (1949) recommended for
prohibiting leasing except by widows, minors and disabled persons,
Delhi 1985) at
49 Gunnar Myrdal, Asian Drama, Vol. II (Kalyani Publishers, New
age
. 1310-11.
(Oxford University Press,
Po Wolf Ladejinsky, Agrarian reforms as U nfinished Business
. 5
51 PS. Appu op. cit., at pp. 64-70.
Relations (Rawat Publications,
2B: Bale Land Reforms and Changing Agrarian
764 Economic Development, Lawitand Social Transformatiow
ec LSE TARGA GILLES teh! Dr ee
conferring land ownership to the tiller who was cultivating for more
than six years’? Partly deviating from this policy, the First Five Year
Plan (1951-56) propounded the national policy on tenancy reform on
the following lines: landholders to be allowed to resume their ten-
anted land within five years’ subject to certain limits (3 times the
family holding); and the maximum rate of rent is to be prescribed not
exceeding one fourth of the produce. The Second Five Year Plan (1956-
61) found that large scale eviction of tenants under the guise of “vol-
untary surrender” of tenancy, in addition to resumption of land for
personal cultivation, caused great setback to land reform measures. It
recommended for restricting the right of resumption to small land-
holders. The Third Five Year Plan (1961-66) reiterated that the final goal
should be to confer right of ownership on a large number of tenants
as far as possible by declaring tenants as owners, and requiring them
to pay compensation to owners in suitable installments; or through
governmental acquisition of owners’ rights and transfer of ownership
to tenants subject to payment of compensation in suitable installments.
It set two specific objectives for land reforms: first, to remove impedi-
ments inherent in the agrarian structure that limit higher agricultural
production with high levels of efficiency and productivity; and second,
to eliminate all elements of exploitation and social injustice within the
agrarian system, to provide security for the tiller of the soil and assure
equality of status and opportunity to all sections of the rural popula-
tion. The Fourth Five Yea: Plan (1969-74) proposed to declare all tenan-
cies, non-resumable and permanent; to regulate voluntary surrender;
and to provide for complete protection in respect of homestead land on
which cultivators, artisans and agricultural labourers had constructed
their houses.
The above policies were incorporated by states in their respective
legislation with suitable modifications. The legal regime formulated
by various states has the following characteristics:
1. Regulation of rent was the starting point for a soft approach
adopted in the beginning of reforms. Procedure for calcula-
tion of fair rent varied from state to state. Along with aboli-
tion of tenancy in many states in early 1970s, the provision
became irrelevant in those states.
2. Security of tenure against evictions was another soft approach
that lasted until categorical declaration of the legal meas-
ure to confer ownership right to the tenants. The extent of
is In 1951 the Indian National Congress evolved the agrarian policy. “Land is the
basis of India’s economy. The agrarian system should be so organised that the fruits
of labour are enjoyed by those who toil and land is worked as a source of wealth for
the community.” P.S. Appu, op. cit., at p. 84; for details about Five Year Plan policies
see, at pp. 85-98.
SS
La eS Sk ee
765
protection available depended upon the type of tenancy,
owners’ right of resumption, land records and definition of
the term “personal cultivation” and opportunity for volun-
tary surrender.
3. Right of resumption was another approach that tried to bal-
ance the conflicting interests, and politically compromised
with the class of land owners. Since they were larger in num-
bers than the Zamindars, overnight extinction of their rights
was not attempted. Although the scope of this right was
reduced drastically later, so long it was there in the statute
book, its widespread use and abuse emasculated the spirit
of land reform law. It was only after resumption had been
made by the dominant class of land owners in innumerable
circumstances that the clause was removed.
4. Personal cultivation, which excluded the operation of tenancy
law, was defined in many statutes in such a way that culti-
vation done without personal supervision or presence was
also regarded as personal cultivation. It is only the law of
Manipur and Tripura that insisted on personal labour as a
component of personal cultivation.
5. Opportunity for voluntary surrender by the tenants was
another loophole that was abused by use of threat, indebted-
ness or show of force. Although law had provided for safe-
guards like supervision by the administrative authorities,
in practice, they were inadequate and inefficient. With the
abolition of tenancy, there could be no scope for surrender in
many states.
6. Inorder to implement the radical law like land reforms, up-to-
date records of tenancy rights contribute a lot. Some of the
state laws built presumption in favour of the land records.
But in some states the system of annual revision was not in
vogue, as a result of which distortion of facts was practiced
unjustly.
7. Conferment of rights of ownership on tenants is a radical
policy incorporated in the laws of Karnataka, Kerala, and
few other states. The tenants getting ownership/occupancy
rights were not entitled to transfer the land for a period of 18
years. But in Andhra Pradesh, Tamil Nadu, U.P, West Bengal,
and Rajasthan such a radical approach was not adopted. In
Bihar, Punjab and Haryana tenants are not entitled to own-
ership in case the land holding of the owner is within the
ceiling limit.
8. Leasing of land after the commencement of the law is pro-

hibited in some states like Karnataka and Kerala except in
limited circumstances like disability of the owner or service
in defence forces. The instances of clandestine leasing are
reduced because of the fear of loosing land. However, the
practice is prevalent in other states where it is not banned.
9. Acquisition of agricultural land through purchase or inher-
itance by non-agriculturalists or by persons having income
more than a prescribed sum from non-agricultural sources
without the permission of the authorities is prohibited in
some states like Karnataka54 The purpose is to keep the land
away from absentee landlords. But in practice, the provision
is more respected by breach rather than by obedience. Capi-
tal investment by non-agricultural sector has stimulated
agricultural activities in some circumstances whereas it is
also often a means of converting black money into white.
The above legal development has trodden the path of incremental
reforms which witnessed delay in both making and implementation
of the law. The change from the early policy of soft pedaling in the
matter of land relations to sweeping reforms through tenancy aboli-
tion is a significant move in the agrarian sector. This shows how an
aggressive conflict model has been avoided in the economic field also.
The impact of tenancy reform all over the country has been significant,
although it was not cent per cent successful. By 1992, ownership rights
have been conferred on some 11 million tenants on 14.4 million acres
of land. According to one estimate, the money paid as compensation to
ex-landlord up to 1995 was Rs 60, ooo million*5 This can be compared
to 4.2 million acres of land received as donation and 1.19 million acres
distributed under Bhoodan movement without any cost5* The inci-
dence of tenancy dwindled from 50 per cent of cultivable land at the
time of independence to 7 per cent in 1982. The performances of vari-
ous states varied with the conditions such as political climate, farmers’
movements, dynamism of leadership, civil society’s participation and
degree of governmental involvement.
Performance of some states can be briefly perused. In Karnataka,
and Kerala, because of the radical policy of abolition of tenancy sup-
ported by system of tribunals far-reaching changes were brought. In
Karnataka, totally 8,13,251 applications had been submitted by tenants
* The prescribed sum is Rs 2 lakhs.
*® Sukumar Das, “A Critical Evaluation of Land Reforms in India” in B.K. Sinha
and Pushpendra (Eds.), Land Reforms in India: An Unfinished Agenda (Sage Publications,
New Delhi 2000).
°° Sudarshan Iyengar, “Bhoodan Movement as a Gandhian Approach to Resource
Distribution and Development” (2007) 28 (4) Gandhi Marg 401 at p. 413.
eee ee 767
seeking ownership or occupancy right out of which 8,11,152 were
dis-
posed within a span of five years’, Nearly 60 per cent of applications
were decided in favour of tenants by 1982. By 1992, six lakh tenants
became owners of 26.32 lakh acres of land, which in fact, constituted
9 per cent of agricultural land. It has been commented that large scale
eviction of tenants prior to 1974 was responsible for the dismal situ-
ation” Rajan has assessed that it is only in small section of land using
class that the legislation is effectuated>* Damle considers the law as
watershed development although its vigour had been diluted because
of avoidable delay, unscrupulous land transfers and evictions, and
political interferences. According to P.S. Appu, “Of all the States, the
best performance in the field of tenancy reform was that of Kerala.”
Because of availability of documentary evidences, tribunal’s initiatives
for mutual settlement and favourable public opinion, the success rate
of applicants from different categories of occupants ranged from 82 to
98 per cent. Since agricultural labourerers were also beneficiaries, the
total number of tenants who acquired ownership rights amounted to
28.42 lakh tenants in 14.50 lakh acres.
In West Bengal, the Te-bhaga movement had resulted in legal restric-
tion upon landowner’s share to one third of the produce. The West
Bengal Bargadars Act, 1950 gave limited protections to the bargadars
or sharecroppers. The Act of 1955 provided for registration of barga-
dars, which involved protracted procedure. Only four lakh names
were recorded by 1978, mainly due to introduction of legal presump-
tion in favour of actual cultivation. The “Operation Barga” launched
by the Government yielded expected result because of the keen inter-
est shown by the administration through on the spot enquiries and
encouragement to disclose about the facts of actual cultivation, and
because of the involvement of the public, especially, workers of the
leftist parties who were ruling the State and the rural organisations.
The procedure was safe, fast and transparent. Within a span of five
years’, as many as 13.25 lakh bargadars had been put on records with
protection against eviction.” The success of conflict model of social
transformation is exhibited in this development. But such enthusiasm
did not prevail in other states.
7 PS. Appu op. cit., at p. 109; C.B. Damle, op. cit., at p. 227. |
5 M.A.S. Rajan, Land Reforms in Karnataka (Hindustan Publishing, Delhi 1986) at
p- 117.
*° P.S. Appu op. cit., at p. 112.
voadhed ibe apou o cit, at pp. 117-18. Also see, Buddhadeb Ghosh, “Land Reforms:
India, Vol.
Lessons from West Bengal” in B.K. Sinha and Pushpendra, Land Reforms in
p. 117 for the view that social transfor mation
V (Sage Publications, New Delhi 2000) at
to be left to the mainstr eam political parties
through land reforms is too important
alone.
768 Economic DeveloSApment, ormation
Law and Social TransfIEE
A DE LA Si AOE DASIAL AA IL RI E
States like Assam, Bihar, Madhya Pradesh, Rajasthan, Gujarat,
Maharashtra and Tripura provided for ownership to tenants only with
regard to non-resumable land. Interestingly, Andhra Pradesh and
Tamil Nadu have not provided for conferment of ownership rights on
tenants. The implementation of the Bombay Tenancy and Agricultural
Lands Act, 1948 and 1957 resulted in conferment of ownership on 14.6
lakh tenants over 16 lakh ha of land. Since the Act had permitted sur-
render of tenancies, landowners recovered lands to the extent of 1.8
lakh ha from 84, 668 tenants. Added to this was the problem of con-
cealed tenancy. For the poor performance of land reforms, reasons
such as absence of correct and updated land records, lack of financial
support for land reformprogrammes, non-appearance before tribunals
and non-payment of instalments by the tenants have been attributed.”
In almost all the states, lack of political will was a major contributory
factor for failure of land reforms.
Four decades of tenancy reform did not result in total eradication of
tenancy in many states. In the changed socio-economic circumstances,
where the middle class people migrate to urban places in pursuit of
career or business, the agricultural land is either left fallow or is leased
clandestinely. In both the cases, the productivity of land is the vic-
tim. The National Commission on Agriculture has recommended for
relaxing the ban on tenancy, and introduction of adequate safeguards
against abuse. P.S. Appu considers such a step as realistic and timely
and not a retrograde one.® «
17.3.4 Ceiling on agricultural holding

Compared to the abolition of intermediaries and tenancy reforms, the
policy of ceiling on agricultural land was given least attention and
effect by the states. Because of political opposition, it made late entry
into the legal regime, that too with ambivalences, in-built self-defeat-
ing measures and complex variations from state to state. The policy
has sound basis in the idea of economic justice contemplated in the
Directive Principles and has justifications such as: reducing the glaring
inequalities in ownership and use of land; meeting the desires of lan-
dless masses; enlarging the spheres of self-employment; augmenting
the purchasing power of the rural underprivileged; and better sense
of responsibility and enthusiasm amidst the new assignees resulting
in better cultivation. The arguments against ceiling limit press upon
the disadvantages of uneconomic small holding for mechanised culti-
*! RY. Bhuskute, op. cit., at pp. 58-72.
* P.S. Appu, op. cit., at p. 212. For a contrary view see, Pushpendra, “Liberalisation
and Agrarian reforms: Some Recent Controversies” in B.K. Sinha and Pushpendra
,
Land Reforms in India, Vol. V (Sage Publications, New Delhi 2000) at pp. 45,
61.
Modernisatio agriculture and law: agrarian reforms
“stisatecinok reapn,ae, RR AGAR 1 Ri 769
vation, the prevalent practice of cultivation with the help of labourers,
lack of experience and funds in the hands of the new assignees and
non-imposition of egalitarian policy in spheres other than agriculture.
While the Kumarappa Committee had recommended for rational
fixation of ceiling on land holding and strict implementation of the
same, the First Five Year Plan expressed difficulties about break up of
economic holdings and numerous practical problems involving social
conflicts. The Panel on Land Reforms (1955) recommended for ceil-
ing to be fixed at three family holdings, payment of compensation (25
per cent of the market value) for land held in excess of ceiling limit
and taken over by government and exemption of plantation of tea, cof-
fee, rubber and orchards from the operation of the ceiling law. The
Second Five Year Plan did not consider ceiling policy as conducive to
the goal of increased agricultural production, and hence did not advo-
cate it with great zeal. The Third and Fourth Five Year Plans referred
to the impediments involved in implementation of ceiling law and the
need to take stern steps against dishonest transfers to escape from the
clutches of law.
Regarding ceiling on land holding, an enthusiastic beginning
was made in Jammu and Kashmir and West Bengal by enacting the
Big Landed Estates Abolition Act, 1950 and the West Bengal Estates
Acquisition Act, 1953. The former fixed uniform ceiling of 22.75 acres
on individual basis and irrespective of class of land; and the surplus
land was to be taken over by the government without compensation.
The West Bengal law fixed a ceiling of 25 acres on individual landhold-
ers. These legislation resulted in vesting of 1.8 lakh ha and 3.5 hain the
states respectively. The land reform laws in 1960s in other states had
varying approaches about classification of land, definition of standard
acre, extent of maximum holding, provision for family, compensation
payable for vesting of excessive land with state. The Andhra law fixed
27 acres of A class land or 324 acres of H class land with so many inter-
mittent classification based on irrigation facility, and nature of soil.
Assam fixed it at 50 acres without classifications. Bihar’s fixation var-
ied from 20 acres of Class I land to 60 acres of Class V land. Gujarat’s
ceiling limit varied between.19 and 44 acres; Punjab and Haryana
opted for 30 to 60. Kerala chose a low ceiling limit of 10 standard acres
for family and 5 standard acres for individuals. Karnataka’s fixation
was at a higher holding: 27 standard acres which varied between 27
acres of Class I land and 216 acres of Class VII land. Tamil Nadu fixed
it as 15 acres for family.
Thus, ceiling measures prescribed by states in 1960s varied from
state to state. Apart from diversity and complexity, the loopholes and
6 Ibid, at pp. 126-27.

mation
770 Economic Development, Law and Social Transfor
implementation. As
protracted procedures of the law impeded the
rous exemptions and
PS. Appu wrote, “The high level of ceiling, nume
d have anyway led
widespread transfers, both legal and illegal, woul
be declared as
to a drastic reduction in the area of land that could
creation of
surplus.” Delay in the making of law enabled fictitious
land records to escape from the loss of surplus land.
socialist
The period between 1969 and 1974 saw emergence of radical
1969
ideas in political leadership. The Chief Ministers’ Conference in
and 1970 recommended for scaling down of the ceiling levels, doing
away with large number of exemptions and bringing about uniform-
ity in state laws. The Central Land Reforms Committee (1970) made a
thorough study and recommended for the following measures:
(i) ceiling to be applied for the family as a whole, and in case of
bigger family (more than five members) allowing of addi-
tional land for each member subject to maximum limit of
twice the family holding;
(ii) ceiling to vary between 10 and 18 acres according to state pol-
icy depending upon soil condition, land productivity, crop
pattern and irrigation without uniform and rigid limit to be
applied to the whole country;
(iii) absolute ceiling not to exceed 54 acres;
(iv) exemption in case of mechanised farming to be withdrawn;
(v) national policy to be adopted regarding exemption to planta-
tion crops.
The Chief Ministers Conference, 1972 agreed to provide exemptions
only in favour of plantation crops; land held by the Bhoodan Yagna
Committee; registered cooperative farming; land held by agricultural
universities; and genuine trusts constituted for religious, educational
or charitable purpose. It made final recommendations for revamping
the existing law on ceiling and laid down elaborate guidelines about
range of ceiling, unit of application, exemptions, compensation and
distribution of surplus land.
States amended the land reforms statutes to incorporate the above
policies without much delay. Parliament incorporated these amend-
ments into the Ninth Schedule for protecting against vexatious litiga-
tion. Except for accommodating the special situations of dry land of
Rajasthan and hilly lands of Himachal Pradesh, no major deviation
was done in fixing the ceiling limit. In Karnataka and Uttar Pradesh,
marginal deviation took place. Family was made unit of land holding.
As per the governmental data, by 1986, under the amended laws, 4.5
million acres of land had been declared as surplus, 3.23 million acres
taken over and 2.3 million acres distributed. The overall figure stood
Ibid, at p. 189.
gd ah oo, Ee apace a) Nich. a ed 771
as follows: 7.45 million acres of land being surplus, 5.78 million acres
taken over and 4.33 million acres distributed. According to the 1992
data the total surplus land distributed remained only 1.24 per cent of
the operational area of the states. This is in contrast to the figure of 177
per cent in Jammu and Kashmir, 67 per cent in West Bengal and 5.9 per
cent in Assam. The overall assessment is that ceiling law did not make
any substantial impact. The major reasons for the failure are listed by
the Government of India: additional holding to bigger families; separate
holding for major sons; exemption given to plantation crops; benami
transactions to defeat the ceiling law; and delay in disposal of cases.®
Delay in making of the law, poor quality of land declared to be surplus,
and apathy on the part of potential beneficiaries due to lack of funds
for profitably cultivating the allotted land had also contributed to the
poor performance. As experienced in Maharashtra and other states,
purchase of land in different villages, districts and states escapes from
the notice of government unless it is voluntarily disclosed.© As a result,
large holdings continue hoodwinking the implementing authorities.
Although the ceiling law could not bring revolutionary change of
chopping the surplus holding and redistributing it amidst the landless,
it could play a vital role in reducing the concentration of land. Except
for this, the development remained to be an instance of inchoate policy
being inefficiently implemented. The failure to build up a strong con-
flict model of social change through law is visible in this sphere also.
In all the three spheres discussed above, the inability to bring required
change in addition to the vicious circle of poverty—indebtedness—
crop failure—market failure inflicted disastrous effect from which the
farming community could not come out even at present. The coercive
powers of the propertied class, the economic dependence of the poor,
and the built-in bias of the legal machinery to favour the status quo
have neutralised the conflict instinct. However, the deathblow that
the agrarian reform gave to feudalism in a telling way is one of the
remarkable social achievements equipping the downtrodden with
greater courage and human dignity.”
6 Agenda Notes for the Conference of Chief Ministers on Rural Development

(1992) at pp. 8-9.
6 RV. Bhuskute, op. cit., at pp. 73-77.
story as
7 Ghanshyam Shah and D.C. Sah view, “Land reforms is not a success
Various measures
one would have liked it to be; it is not a story of utter failure either. the
structure through
have by and large successfully destroyed the feudal agrarian
ri system.” (Ed.), Land Reforms in India, Vol. 8 (Sage Publications,
abolition of the zaminda
772 Economic Development, Law and Social Transf ormation
ID Tan s ORE MOOE SOTO OOO E e
17.3.5 Judiciary and land reforms
Judicial approach to land reforms varied from conservative or prop-
erty-oriented standpoint in the initial period to overt sympathy and
support to the agrarian reforms at the later stage. The makers of Indian
Constitution had clear policy about protection of agrarian reforms
which were enacted earlier and those pending at that time from chal-
lenges on the ground of unconstitutionality. The original Article 31
contained clauses to this effect. But the legislation enacted after the
commencement of the Constitution for these purposes were chal-
lenged on the ground of violating property right or right to equality.
Inadequacy of compensation in case of expropriation of property was
seriously considered by the judiciary, and nullification of few measures
was also found.® In response, the Parliament enacted Constitutional
Amendments to immunise the agrarian and economic reform legis-
lation from constitutional challenges. The conflict between judiciary
and legislature lasted for almost a quarter century. New mechanisms
like Ninth Schedule and exclusion of judicial review about adequacy
of compensation and extension of protection of Article 31-A to laws
dealing with Ryotwari system were tried. Judiciary also began to real-
ise about the importance of the reforms and their constitutional justi-
fications to bring welfare state.” The mainstream development was in
support of the land reforms as can be seen from the fact that agrarian
reforms and constitutional <mendments were adjudged to be passing
the basic structure test7° Legislation on tenancy reforms, ceiling and
consolidation of holding were upheld by the Supreme Court ina series
of cases/* The constitutional and legal development during this period
had witnessed litigations and legislation creating great sensitivity,
political pressurisation and people’s movement. From the perspective
of law and society analysis, the whole development culminating in
repeal of property right from Part III of the Constitution gave ample
proof about the positive contribution of activist state in contributing to
social transformation”
** Kameshwar Singh v. State of Bihar, AIR 1951 Pat 91. For a discussion see, P. Ishwara
Bhat, Fundamental Rights (Eastern Law House, Kolkata 2004) at p. 511.
® Shankari Prasad v. Union of India, AIR 1951 SC 458: 1952 SCR 89.
7” Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461.
”" Waman Rao v. Union of India, (1981) 2 SCC 362; Jilubhai Nanbhai Khachar v. State of
Gujarat, 1995 Supp (1) SCC 596: AIR 1995 SC 142; State of Orissa v. Chandrasekhar Singh
Bhoi, (1969) 2 SCC 334: AIR 1970 SC 398; State of Maharashtra v. Madhavrao Damodar Patil,
AIR 1968 SC 1395; Kunjukutty Sahib v. State of Kerala, (1972) 2 SCC 364: AIR 1972 SC 2097,
Madhusudan Singh v. Union of India, (1984) 2 SCC 381: AIR 1984 SC 374.
” M.L. Upadhyaya, “Agrarian Reforms” in S.K. Verma and Kusum (Eds.), Fifty
Years of the Supreme Court of India (Oxford University Press, New Delhi 2000) at pp.
569,
180-89.
Industrialisation of agriculture and humanisation through law
e 773
e eee
Some of the liberal views expressed by judges can be referred here.
Hidayatullah, J. had observed in Ranjit Singh, “The scheme of rural
development today envisages not only equitable distribution of land
so that there is no undue imbalance in society resulting in landless
class on the one hand and a concentration of land in the hands of a
few, on the other, but envisages also the raising of economic standards
and bettering rural health and social conditions.” V.R. Krishna Iyer, J.
observed in Gwalior Rayons, “The concept of agrarian reforms is a com-
plex and dynamic one promoting wider interests than conventional
reorganisation of the land system or distribution of land.”7* According
to him, it touched upon varieties of activities ranging from production
to marketing and had a target of solving the problems found in rela-
tion to the life of the agricultural community and attaining welfare of
village man. Agrarian reform is a crucial component of the constitu-
tionally contemplated new order in the background of intimate bond
between poverty and hierarchy in agrarian society and the impact of
the social framework of agriculture on the caste system; it is signifi-
cant strategy in the planned development of our resources, the restora-
tion of the dignity of equality of the individual and the consolidation
of our economic freedom.
17.4 Industrialisation of agriculture and humanisation through

law
Some of the essential characteristics of industry include presence of
systematic activity carried on by cooperation of the employers and
employees for the production of goods and services with a view to
satisfy the human demands” Industrialisation is a process contem-
plating rise in the levels of income; meeting the consumer demands;
response to or stimulation for foreign trade; and strengthening the
economy through better economic position of all the parties connected
with the process. It may not involve sudden and dramatic transfor-
mation; but it does envisage continuing social and economic changes,
innovations in production process, accumulation of capital and expan-
sion in trade7* No single cause for transformation could be perceived
in isolation. While the traditional agriculture was aiming at mere sub-
sistence, modernisation in agriculture aims to introduce the elements
73 Ranjit Singh v. State of Punjab, AIR 1965 SC 632 at p. 637.

(1973) 2 SCC 713: AIR 1973
74 State of Kerala v. Gwalior Rayon Silk Mfg. (Wog.) Co. Ltd.,
SC 2734.
a, (1978) 2 SCC 213: AIR 1978
75 Bangalore Water Supply & Sewerage Board v. A. Rajapp
pt.
SC 548. shing, Sydney 1996)
XV (Rege ncy Publi
% 21st Century Universal Encyclopaedia, Vol.
at p. 126.
774 Economic Development, diasta rmation
Law and Social Transfoyeh
intestate acaba se ps Ug Rie teste
of capital investment, mechanisation, scientific know-how about best
seeds and plants, and new farming method with new types of fertilis-
ers and crop protection mechanisms along with fair deal for the work-
ers” Getting maximum profit through better market system is also
one method of satisfying human needs. Access to full employment is
another consequence of systematic activity. Going beyond mere culture
of raising the crop, modern agriculture yearns for equitable develop-
ment and effective protection of the farming community. Organising
agriculture and animal husbandry on modern and scientific lines is a
constitutional mandate’®
Thus, bringing the quality and competitiveness of industrial proc-
ess to the field of agriculture would mean that various inputs like bet-
ter irrigation facility, reasonable finance and other aspects mentioned
above are put into the production process. Post-harvest processing,
storing and value addition bring more income to the farmer’? Making
agriculture a dependable and sustainable avocation is an agenda of
its systematisation. By bridging the gap between farming community,
which feeds the nation through food production and food security by
toiling in sun and rain, and other sections of the society, which con-
tribute in their own way to the economy, through progressive elimi-
nation of economic discrepancies, the constitutional objectives can be
better achieved. Since India is primarily an agrarian society, attain-
ing such a situation brings prosperity and happiness to the larger sec-
tion of people, and enable the economy to flourish without lopsided
growth. The agri-based industry’s support to agriculture goes a long
way in making the economic position of farmers more comfortable.
Mutual assistance between agriculture and industry is essential for
the success of both the sector. In order to bring better productivity and
sustainability to agriculture, the legal dimensions of various economic
factors involved in agriculture such as input (finance, seeds, irrigation,
technology, equipments, and fertiliser), production process and mar-
keting strategies need to be properly addressed. The laws on market-
ing of agricultural produce, protection of cattle and safeguarding the
interests of agricultural labour also need to be considered. How the
” Refer observation of V.R. Krishna lyer, J. in State of Kerala v. Gwalior Rayon Silk Mfg.
(Wog.) Co. Ltd., (1973) 2 SCC 713: AIR 1973 SC 2734.
7° Art. 48 of the Constitution states, “The State shall endeavour to organise
agriculture and animal husbandry on modern and scientific lines
and shall, in
particular, take steps for preserving and improving the breeds and
prohibiting the
slaughter of cows and calves and other milch and draught animals.”
The judicially
enhanced position of the Directive Principles was creatively made use
of in State’of
ee v. Mirzapur Moti Kureshi judgment dated 26-10-2005, Civil Appeal
No. 4937-
” A.PJ. Abdul Kalam and Y.S. Rajan, India 2020: A Vision for New
Millennium
(Penguin Books, 2002) at pp. 73-74.
Industrialisation of agriculture and humanisation through law 775
ea me ant
s —ie
NREGA is set to transform the rural India, and with what difficul-
ties and competence will be discussed. The problem of globalisation,
response through national agricultural policy and combating against
farmers’ suicide will also be examined in understanding the process
of industrialisation of agriculture. In brief, while industrialisation of
agriculture has been affected through modern technology, humanisa-
tion of the whole development by resolving the difficulties through
law is the focus of the present section.
17.4.1. Rural indebtedness and law

The saying that Indian agriculturist is born in debt, lives in debt and
dies in debt® is a sad reality even now. Initially, the intermediary and
tenancy system had made indebtedness an inescapable trap. Poverty,
crop failure, unfavorable market, uneconomic spending, familial
responsibilities, and exorbitant rate of interest created vicious circle
of rural indebtedness. Helplessness of farmers and exploitation by
the moneylenders further added to misery. The traditional Hindu
Law had confined the quantum of interest to a limit not to exceed the
principai amount given in credit. Statutory law in some provinces at
the dawn of independence reflected the policy of better protection of
farmers. In addition to regulating the money lending business by sys-
tem of licensing, requirement of keeping accurate accounts and fixa-
tion of maximum rate of interest, the debtor relief legislation have
been passed by various states to deal with this serious problem. The
Bombay Agricultural Debtors Relief Act, 1947 provided for filing of
declarations by the debtor and moneylender disclosing details about
the debt and the parties before the courts and for mutual settlement
under the supervision of the courts. If the court found that the debtor
had no capacity to repay the awarded amount it had to arrange for
equivalent loan from the bank and prepare a scheme for repaying the
loan.
The All India Rural Credit Survey had estimated in 1951 and 1961
that 67 to 69 per cent of the farming households were in debt whereas
the National Sample Survey had regarded that 54 per cent of the rural
households were in debt. The non-productive debts were estimated
to be 83 per cent.® The surveys conducted in 1970s have shown that
majority of rural households were in debt and that the burden was
8” Royal Commissions Report (1928).

81 This rule which limited the recoverable amount to be lesser than double the
Nath Sen, General
principal amount is called as Damdupat; Manu cited in Priya
Delhi, rept. 1984) at p. 311.
Principle of Hindu Jurisprudence (Allahabad Law Agency,
;
82 The Bombay Money Lending Licence Act (1946).
1980) at p. 319.
8 AN Agrawal, Indian Economy (6th Edn., Vikas, New Delhi
776 Economic Development, Law and Social Transfo rmation
ats RAN cece niierincieiineta Soutien: eh kasi Ee RI
substantial. As a part of 20 points programme, some states passed debt
relief laws, a sample of which can be found in the Karnataka Debt
Relief Act, 1976. It aimed at providing relief from indebtedness to
small farmers, landless agricultural labourers and weaker sections of
the people in the State of Karnataka. It categorically stated that every
debt advanced before the commencement of this section including the
amount of interest, if any, payable by the debtor to the creditor shall be
deemed to be wholly discharged (Section 4). Civil Court’s jurisdiction
on the matter was divested, and the pending cases were declared as
abated. Persons undergoing imprisonment for non-payment of debt
were to be released immediately. The movable properties pledged were
to be returned, and mortgages were to stand redeemed. However, the
law was not to affect debts payable to Central or State Governments,
local authorities, cooperative societies, Life Insurance Corporation,
Government companies and to the credit agencies defined under the
Karnataka Agricultural Credit Operation and Miscellaneous Provisions
Act, 1974 (Section 8). The burden of proving non-application of the Act
upon the debtor rested upon the creditor (Section 7). The revolutionary
character of the law in rendering the debtors free from indebtedness
without further obligation is clearly visible. The contrast with a soft
approach of earlier Maharashtra law substantiates this. However, the
law had targeted against private moneylenders only.
Debt trap for farmers continued with greater rigour and reach along
with economic liberalisati»n. In 2003 it was estimated that non-insti-
tutional debt accounted for Rs 48,000 crores out of which debt with
more than 30 per cent interest rate was Rs 18,000 crores.** The National
Sample Survey Organisation (NSSO) stated that 48.6 per cent of the
farm house surveyed was indebted; of these 61 per cent had opera-
tional holding below one ha.*5 The debt sourced from institutional
channels was 58 per cent and that raised from moneylenders, traders
and relatives was 42 per cent. Farm credit flow has increased from
Rs 86,981 crore in 2003-04 to Rs 203,296 crore in 2006-07. NABARD’s
refinance has also increased from Rs 14,572 crore to Rs 21,917 crore
during the same period.** The increase in farm suicides in Andhra
Pradesh, Vidarbha of Maharashtra, Goa, Kerala, Karnataka and other
states since 1997 was alarming. Annual average of 15,747 farm suicides
“M.S. Swaminathan, “Ending the debt trap and attaining food security
” The
Hindu, 3-3-2008.
Ibid.
*° Key Note speech by Shri P. Chidambaram on 20-7-2007 in the context
of Silver
Jubilee celebration of National Bank for Agriculture and Rural Develo
pment. http//
www. nabard.org/pdf/FM Speech.
ae ISOS DOIG SENECA AONE elt Se 777
in 1997 got increased to 17,627 in 2005,87 and bit reduced into 17,060 in
2006.
Against the backdrop of the agrarian crisis—in the making for at
least two decades and brought about by the neglect of agriculture in
the planning process, an expert group called National Commission
on Farmers under the chairmanship of Professor. Radhakrishnan
constituted by the Central Government analysed the problems in
their entirety and submitted report in July 2007 According to the
Commission, there is an agricultural crisis, characterised by low growth
and declining productivity, as well as that marked by persistently high
dependence of the population on agriculture. On the most obvious
and tragic manifestation of the crisis—the large number of suicides by
farmers in different parts of the country—the expert group has come
to the conclusion that the root cause is not indebtedness alone and
that suicides are only a symptom. Stagnation in agriculture, increasing
production and marketing risks, collapse of the extension system and
a growing institutional vacuum, and lack of livelihood opportunities
are found to be the primary causes. It found that average household
borrowings by themselves have not been excessive; and in the wake
of modernisation and expansion, the credit needs of agriculture have
expanded enormously. Immediate remedial measures recommended
by the expert group include:
(a) better monitoring and implementation of the existing pack-
age of relief measures covering 31 distress affected districts;
(b) rescheduling of loans and waiver of interest burden up to
two years’ as well as grant of fresh loans to farmers affected
by natural calamities. The Centre and the States should share
the burden equally; and
() anone time relief to farmers who are paying exorbitant inter-
est to moneylenders should be provided by banks through
long-term loans. A special fund, to be called the Moneylend-
ers Debt Redemption Fund with a corpus of Rs 100 crore to
operationalise the scheme must be created. Other recom-
mendations included restructuring the Public Distribution
System, promotion of health, sanitation and access to drink
ing water, improving the farm productivity and promotion
of food security.”
A big move of waiving farmers’ loans worth of Rs 60,000 crores with
an estimate of benefiting nearly 4 crore farmers was launched in the
Hindu, 13-11-2007.
87 P Sainath, “Farm suicides worse after 2001—study”, The
Record s Bureau, The Hindu, 31-1-200 8. . ade
8 Report of National Crime
agrarian crisis The
8 For a discussion see, M.S. Swaminathan, “Dealing with the
Hindu, 28-5-2007.
Ibid:
Economic Development, EE
rice en ee See BN
budget proposal by the Union Government in March 2008. The benefit
is available only to marginal farmers (owning up to one ha) and small
farmers (owning one to two he) who have taken loan from scheduled
commercial banks, regional rural banks, and cooperative credit insti-
tutions. M.S. Swaminathan has welcomed the governmental measute
as a recognition of indebtedness of the country to the farming families
and a price to be paid for neglecting of rural India, and has argued
for the extension of the advantage to farmers owning up to four ha
and to those who have borrowed from moneylenders and traders.”
A. Vaidyanathan has commented, “Loan waivers are at best tempo-
rary palliatives to the problems facing rural India. Significant and
sustained improvement in the welfare of the rural population is not
possible without a faster pace of growth in the rural economy and an
improved quality of education and health services.”** He has warned
that by creating an impression that sooner or later they can get away
without making repayment it would reinforce the culture of willful
default.
The direction of legal development in this sphere is towards one of
activist state with proper understanding of law’s competence as well
as limitations. State is not a silent spectator to the havocs of market
forces; but is committed to the cause of welfare of people. However,
the need to avoid the evils of governmental maternalism and to build
innate strength should be properly realised, especially when the state
is withdrawing from interference in other fields.
17.4.2 Seeds, plant varieties and farmers’ rights

Seeds and plant varieties are basic inputs for agricultural activity.
The achievement made in this field by the agricultural scientists and
governmental bodies in support of green revolution of 1960s were
instrumental in bringing plenty and prosperity in Indian agriculture.®
Traditionally, farmers were the seed keepers and seed developers. But
loosing self-reliance or sovereignty on seeds and depending upon the
government or Multinational Companies became a feature of modern
agriculture. Whether it brought fortune or menace is a question that
can hardly escape from social transformation perspective of law.
Government's active involvement in this sphere had distinct contri-
bution in the process of modernisation. Administrative measures like
*' M.S. Swaminathan, “Ending the debt trap and attaining food security”
The
Hindu, 3-3-2008.
* In an article published in The Hindu, March 2008.
** Owing to introduction of High Yield Varieties between 1966 and 1971
there was
168 per cent growth in food production over the total achievement in 1950
to 1966. See,
Ramesh Chand, op. cit., at p. 21.
sn SgaASRIS
e areata hseem ee ahaha
a lena 779
establishing Indian Council of Agricultural Research for coordinating
research, dissemination of information, training the officers for agri-
culture extension service and promoting agriculture education; effec-
tuating National Agricultural Innovation and Technology Project and
constituting of National Seed Corporation contributed towards greater
competence on the part of agricultural community to grow more food
and commercial crops.** National Seed Corporation performs the func-
tions such as production and supply of foundation seeds, maintaining
improved seed stocks, Inter-State and international marketing of seeds,
coordinating certified seed production by state agencies and providing
training. In order to systematise these activities within the legal frame-
work, the Seeds Act was passed in 1966. The Act provides for compul-
sory quality control of seeds belonging to notified kind, certificating
them and truthful labeling of them (Sections 4 to 6). It empowers the
Central Government to specify the limits of germination and purity of
seeds and accordingly certify in the label (Section 6). It prohibits sale
or offer of seeds that do not conform to the requirements of identifica-
tion with specific variety, minimum limits of germination and purity
and proper disclosure of relevant information (Section 8). Main thrust
of the law is to ensure quality control and to avoid spurious seeds.
Seeds Control Order, 1983 enacted under the Essential Commodities
Act, 1955 required dealers to obtain licence. The National Oil Seeds
and Vegetable Oils Development Act, 1983 was enacted to deal with
the interaction of market forces by devising integrated approach of
production, procurement, marketing, storage and price control. With
the introduction of Privatisation and Liberalisation in late 1980s, large
Indian companies entered into the market in collaboration with foreign
companies and foreign seed companies opened their branches and
subsidiaries. Smaller companies disappeared from the scene in course
of time because of the heavy input for R&D. Seed development was
emphasised in 1988. In 2002, National Seeds Policy was announced:
making available to Indian farmer, adequate quantity of seeds of supe-
rior quality at the appropriate time and place at an affordable price so
as to meet the nation’s food security goal. Economic pricing policy by
both the private and public sector was insisted. Retention of agro bio-
diversity was emphasised. Congenial atmosphere for the growth of
seed industry was aimed.
The Seeds Bill, 2004, which is not yet passed owing to public dissat-
isfaction and protest, intends to replace the present law and provide
ional
Dayanatha Jha, “Agricultural R&D in India: Growth, Equity and Institut
s (Centad, New Delhi
Challenges” in Ramesh Chand (Ed.), India Agricultural challenge
2005) at p . 171-72. :
Edn., Asia Law House,
2B meas Insecticides, Fertiliser (Control) Order and Seeds (4th
Hyderabad 2000).
and Social TransReforma
opment, Lawu
Economic Develoc tion
780 cl dnc alla» aM eS
A
for
for drastic measures. It proposes to make registration of all seeds
sale, compulsory. Registration will be for specific duration (15 years
for annual crop seeds and 18 years’ for perennial crop seeds). Imported
seeds also need registration. Regulation of sale of seeds to ensure good
quality is proposed to continue. Accreditation of seed certification is
contemplated. For failure of seeds farmers are entitled to compensa-
tion from suppliers. Stringent punishments are contemplated for vio-
lation of the law. The Central Seed Committee has equal number of
representatives of farmers and seed industry. But adequate procedural
safeguards about the functioning of its sub-committee for registration
are not made. The question of accessibility to seeds by price control is
not addressed in the Bill. The Bill is widely criticised as heavily loaded
in favour of private seed industry, especially the MNCs; as compel-
ling the farmers to give technical proof of genetic purity and health
of their seeds; and as robbing their natural right to barter or sell the
seeds.” According to Gopa Kumar and S. Saxena, “By banning the
sale of unregistered seeds and insisting on compulsory registration
of all varieties of seeds including farmers’ varieties the Bill will effec-
tively push the farmers’ varieties from the formal seed market and
limit its circulation.”” The protests and objections by the NGOs and
farmers’ associations did stall passing of the Bill in the present form.
This success against ruthless commercialisation speaks about interac-
tive model of law making, and not thoughtless imposition from the
above. Similar success of public opinion in the matter of enactment
of plant varieties and farmers’ rights law, which protects the modest
rights and legitimate expectations of farmers, reinforces the belief in
democratic process.
The problem of spurious seeds and adverse consequence of geneti-
cally modified seeds has also contributed to the misery of farmers.
The failure of Bt cotton seeds in A.P, Karnataka and Maharashtra
(Vidarbha) resulted in crop failures in 1990s. The ecological imbal-
ance arising from GM seeds is also a matter of concern.** The remedies
available under the Consumer Protection Act, 1986 and other laws do
not have preventive policies.
True to the process of industrialisation, agrarian development has
witnessed introduction of intellectual property claims into the farm’s
*° See, for a critique, KM. Gopa Kumar and Sanjeev Saxena, “Seeds Bill 2004: For
Whom?” (2005) 47 JILI 483; Vandana Shiva, “The Indian Seed Act and Patent Act:
Sowing the Seeds of Dictatorship”; Gupta, “Seeds Bill 2004: A Blueprint for Murder of
Indigenous Seeds” (2005) 6 Peoples March.
*” K.M. Gopa Kumar and Sanjeev Saxena, op. cit., at pp. 500-01.
** Suman Sahai, “Is Ag Biotechnology Suited to Agricultural Production in India”
in Ramesh Chand (Ed), op. cit, at pp. 161, 169-170 arguing for greater control and
extensive education of farmers on Gm seeds.
a = ARAn VA eis -eee 781
domain with all the complexities of converting knowledge into wealth
by means of monopolisation and diverse commercial consequences
thereof. The Preamble to the Protection of Plant Varieties and Farmers’
Rights Act, 2001 states, it intends to provide for establishing an effective
system for protection of plant varieties, the rights of farmers and plant
breeders and to encourage development of new plant varieties. Under
the Act, breeders are entitled to register plant variety by establishing
the conditions of novelty, distinctiveness, uniformity and stability, and
exclusively produce, sell, market and deal with the registered variety
(Section 28). Although plant breeders include farmers in case they have
bred, evolved and developed a new variety, because of technicality
involved in establishing the necessary conditions it is a rare possibility
that their intellectual labour will be adequately rewarded unless civil
society assists them. Thus, the exclusive rights conferred upon the
breeders to sell, market, distribute, import or export the variety will
be more helping the corporate seed and plant sector than the agrarian
community. There are provisions for compensating the contribution
of the people or local community or for benefit sharing (Section 24).
But these are more in the form of lip service as they involve vagueness
about the way to go about. There is a remedial measure in case the
plant breeders fail to satisfy the reasonable requirements of the public
by providing the seeds at a reasonable price. There is also a notable
provision which excludes terminator gene technology for which the
farmers and NGOs seriously agitated.” An impressive list of rights of
farmers contained in Chapter VI of the Act is highlighted as something
traceable to farmers’ agitation as the provision was not there in the
original Bill but included later due to farmers’ demand. They include
right to register farmers’ variety; right of reward from National Gene
Fund for conserving the genetic resources; right to save, use, sow, re-
sow, exchange, share, or sell his farm produce including seeds without
using protected brand names; right to be informed about the perform-
ance of the protected variety when sold to him; and right to be pro-
tected in case of innocent infringement (Section 39). While these are
welcome features, the possibility of commercial seed companies gain-
ing total control over seed supply can hardly be excluded. seni
The overall development of law in this sphere is toward s facilit ating
the farming activity and protecting the farmers’ rights by recognising
their intellectual property rights. Guarding against the dominance of
the MNCs by concerted action of the community has become a way
n
°° Vandana Shiva, Captive Mind and Captive Living (Research Foundation, Dehradu
Universi ty
1995) at p. 117. Also see, Jayashree Watal, Intellectual Property Rights (Oxford
Vandana Shiva and Gitanjali Bedi, Sustainab le Agricultu re and
Press, New Delhi 2001);
Technology
Food Security—The Impact of Globalisation (Research Foundation for Science,
and Ecology, New Delhi 2002).
782 Economic Development, Transformation
Law and SocialSPAS
a nc e ieee sans aa NTRAaa EE
open against operation of market forces. But, the reality is that there
is increasing tendency of depending upon the seed companies than
on self-reliance; and to embrace monoculture rather than continue the
flourishing bio-diversity. However, there are also civil society move-
ments of seed keeping aiming to revive and conserve the diversity and
traditional knowledge of cultivation. Whether the state of art technol-
ogy is helping the farmers or not is a matter to be addressed from the
angle of sustainable farming which necessarily takes us to other com-
ponents of industrialisation of agriculture.
17.4.3 Law on irrigation, fertilisers, and insecticides

In this field, the role of law is one of facilitating and protecting the
interests of agrarian community, keeping in mind the requirement of
fair distribution of limited resources, and timely availability of inputs
at an affordable cost. Technological developments relating to irrigation,
fertilisers and insecticides were forerunners of green revolution at one
stage. Big and small dams, bore wells and subsidised fertilisers and
pesticides made huge contribution in changing the rain-dependent
traditional gambling with nature into an economic process of certainty.
The objective of protection of environment and health is essentially
relevant here although it was given low key treatment until recently.
A sustained and systematic development of major, medium and
minor irrigation projects expanded the extent of irrigated land from
22.6 million ha in 1951 to 109 million ha in 2007. Cooperative federal-
ism’s positive contribution through central assistance in the form of
finance and technology to state irrigation projects and amicable rela-
tions amidst riparian states of Inter-State rivers in the matter of shar-
ing of resources and joint management of Inter-State river projects
have significant constitutional dimensions in bringing this change
for better. The principles relating to allocation of water resources
amidst riparian status, although emphasise on equitable apportion-
ment concept, need to be sensitised by the constitutional principles
relating to reducing the income disparities among groups of people
residing in different areas [Article 38(2)] and distribution of material
resources of the community to subserve the common good [Article
39 (oJ. In view of the fact that irrigation is a key to change the land
use and economic security, and harbinger of prosperity, its potential-
ity for economic transformation requires objective consideration. The
resolutions of Inter-State water disputes through adjudication have
been found to be dilatory, expensive and cumbersome in addition to
being politically sensitive." The Inter-State Water Disputes Act, 1956
P. Ishwara Bhat, “Inter-State water disputes and the legal response: Perspectives
i RSG St A Sts ie ict A 2 ie
has enabled constitution of the tribunals for resolving the Inter-State
water disputes. The River Board Act, 1956 that envisages cooperative
efforts and participation of riparian states in the joint management of
resources for multi-purpose use has not been implemented. However,
post-award supervision, effectuation and monitoring of tribunal's
recommendations through river-specific authorities have been used.
An integrated approach based on constitutional values is very much
needed. What is stated by the Cauvery Water Disputes Tribunal in its
final report in 2007 is worth remembering, “It would be appreciated
that there is no control of human being on the happenings in nature
and we have only to make an attempt to make beneficial use of the
available quantum of flows in any year and distribute the same for the
benefit of the basin as a whole by integrating the release from different
storage reservoirs."
Relating to water other than Inter-State river water, states have legis-
lative power to regulate. An example of irrigation law dealing with sur-
face water resource is the Karnataka Irrigation Act, 1965. This Act pro-
vides for regulation of water from irrigation works, and gives certain
powers to irrigation officers in regard to survey, investigation, execu-
tion and maintenance of irrigation works. The term irrigation work is
widely defined to include various surface water resources maintained
or controlled wholly or partly by the Government and various arrange-
ments, equipments and facilities. Private persons are prohibited from
providing irrigation service without prior permission of the state and
from obstructing the operation of irrigation works. Wide powers are
conferred upon irrigation officers to regulate the time of letting the
water for irrigation, period of supply, quantity of supply and the area
to be supplied at different times (Section 27). New users are to seek
the irrigation facility by filing application. Justified circumstancesof
stoppage are laid down. Depending upon the quantity of water in each
year, the Irrigation Officer may notify about availability of water for
different crops. The Government has the power to prescribe the kind
of crop to be grown in the irrigation area and the time of sowing. The
statutory involvement of Water Users Society, introduced in 2000, in
controlling, maintaining and monitoring of irrigation works is a sig-
nificant step towards people’s participation in law enforcement. _
Groundwater is an important source for irrigation, concerning
which legal regulation can be found in states of Gujarat, Kerala and
Andhra Pradesh and in Union Territories. Silence of the law regulat-
ing inter-spacing of bore wells had resulted in excessive depletion of
Journal of
of development with justice and strategies for fair future” (1994) SBRRM
Law at pp. 11-29.
fae of the Cauvery Water Disputes Tribunal, Vol. V (2007) at p. 214.
784 Economic Devel opment, Law PES formation
and Social TransRA
il e li ea a ee ea ae APSA SS
-
groundwater beyond the recharge potentiality, a position that contin
ues even now also in states which have not gone for legal regulation.’”
The Groundwater Rules framed under the Environment (Protection)
Act, 1986 have not yet been implemented in the states. These legal
measures have the policy of registration of bore wells, compliance with
inter-well distancing, and features of command and control models.
The Andhra Pradesh Water, Land and Trees Act, 2002 links the con-
servation strategy with Panchayati Raj system, with tree preservation
and afforestation and with the techniques of recharging through rain
water harvesting. The Kerala Groundwater (Control and Regulation)
Act, 2002 creates Kerala Groundwater Authority, a multi-member body
of experts and officials, on whose recommendation areas are noti-
fied for regulation of sinking of bore wells and sanction of electricity.
In spite of the fact that there is fall of water table in some states like
Karnataka, legislative measures have not been made or implemented.
The delay has seriously and adversely affected the ecosystem. However,
there are also administrative measures for dry land cultivation which
greatly help the small and marginal farmers.
In the matter of manure, traditionally, Indian agriculture had relied
on organic farming. Introduction of artificial manure is the contri-
bution of modernity. Fertiliser production is entrusted upon central
public undertakings in view of the central government’s power under
List I Entry 53'°3 of the Constitution and enormous importance of the
material. It was in 1960s t’:at artificial fertilisers became popular in
order to support the high yield varieties. Along with subsidisation it
became cheap and accessible to small farmers also. In view of the need
for fair and timely distribution of fertilisers at fair price, the Fertiliser
(Control) Order, 1985 was made under the Essential Commodities
Act, 1955. The Central Government has the power to fix the maximum
prices at which the fertilisers were to be sold by dealer, manufacturer
or importer. Rule 6 provides, “The Central Government, with a view
to securing equitable distribution and availability of fertilisers to the
farmers in time, by notification in the Official Gazette, direct any
manufacturer or importer to sell the fertilisers produced by him in
such quantities and such state/s and within such period as may be
specified in the notification.” Elaborate provisions are made under the
Order relating to registration of dealers, rules of transparency about
stock, price and issuing of receipts. Mixture and sale of fertilisers
by unauthorised persons is prohibited. Enforcement authorities are
2 P. Ishwara Bhat, “Legal Management of Groundwater to Ensure Reasonable Use
and Development with Justice”, Conference Souvenir ILI (1994) March, at pp. 139-53.
Regulation and development of oil fields, petroleum and petroleum products;
other liquids and substances declared by Parliament by law to be dangerously
inflammable.
a LG an Ge a_i gm i den i —ileal785
given powers of inspecting, seizing and quality testing of fertilisers.
The licensing system is associated with power of monitoring, control-
ling and disciplining the dealers. The activist state approach to assist
the farming community is clear in the Order. In spite of these legal
measures, occasionally due to lack of adequate preparation, fertiliser
shortages and consequent agitations are experienced. In view of
large amount of fossil fuel being used in chemical fertiliser produc-
tion, high cost of fertilisers triggered by partial withdrawal of subsidy
and poverty of farmers, the problem of shortage needs to be resolved
by a switch over from artificial fertiliser to traditional system of green
manuring.’®
Recent governmental policy has been in favour of organic farming
or zero chemical farming. After realising the evil effects of artificial
manure upon the health of the soil and its long term capacity for pro-
duction, there is encouragement to reviving the traditional methods of
cultivation.’” This has the potentiality of making agriculture sustaina-
ble and eco-friendly. As the saying goes, wisdom of farmer is reflected
in the manure he uses. There are 125 bio-fertiliser units established
in various parts of India under National Project on Organic Farming.
Certification of bio-fertilisers, capacity building, financial support for
large scale production and promotion and extension of bio-farming
are the other activities organised under this project.
With a view to prevent risk arising from insecticides to human
beings or animals, the Insecticides Act, 1968 has been passed. This reg-
ulates the import, manufacture, sale, transport, distribution and use
of insecticides. The system of licensing and registration is employed
for regulating the import, manufacture, and sale of insecticides.
Central Insecticide Board advises about the technical matters, and
the Registration Committee scrutinises the formula and adequacy of
safety to human beings or animals. There is prohibition upon all per-
sons to manufacture and import any misbranded insecticides, prohib-
ited insecticides or insecticides in violation of the law or the registra-
tion conditions. If on the basis of report about occurrence of poisoning
or otherwise, when the Central or State Government is of opinion that
any insecticide or any specific batch of it involves such risk to human
beings or animals as to it render it expedient or necessary to take
immediate action, the Government may prohibit the sale, distribution
or use of such insecticide for a period of two months’ pending inves-
tigation (Section 27). After investigation, depending upon the findings,
104 Tn June 2008, in Karnataka, farmers’ agitation occurred leading to police firing
at violent demonstrators and death of 2 farmers.
5 P Sainath, “Fertilising Profit, Sowing Misery” The Hindu, 16-6-2008.
and
1% This is reflected in budget proposals of Central and State Governments
National Agricultural Policy.
786 Economic
a Developme Law
nt, ee and Social ation
TransformIE
t eer ce tee ~MERR
appropriate orders may be issued. In Ashok (Dr.) v. Union of India’, the
Supreme Court held that the power did not include cancellation of
the registration so long as the insecticide found entry in the sched-
ule and that the power of altering the schedule through amendment
was vested with Parliament. The Court was satisfied about measures
taken by the Union government about the impugned items of chemi-
cals. It acknowledged that broad spectrum of pesticides upset the eco-
system and threatened health. At the state level also, certain enact-
ments have been made. For example, the Karnataka Agricultural Pests
and Diseases Act, 1968 makes provisions to prevent the introduction,
spread or reappearance of pests, plant diseases and noxious weeds
injurious to crops, plants or trees in the State of Karnataka. It author-
ises the Government to notify any area as affected by pests or weeds
and to direct the occupier to remove or destroy infested plants, and
enforce the directions. The administrative measures like Integrated
Pest Management launched by the Union Government and applica-
tion of quarantine measures under the Destructive Insects and Pests
Act, 1914 and the Plant Quarantine (Regulation of Import to India)
Order, 2003 also contribute towards pest control. Biological and bio-
technological methods of pest control, which have been proved to be
effective in prevention techniques, are also encouraged by conferment
of adequate intellectual property protection and other state support.
An important post-modernist development in manuring and pest
control is the increased usé of cow dung and cow urine. Regarded ini-
tially as a cultural mark, the policy of protecting cow progeny faced
severe constraints arising from butchery’s business. The ‘balancing’
approach adopted by the Supreme Court in Quraeshi I'8 on protec-
tion of bulls and bullocks on grounds of freedom of business and
occupation had diluted the cow progeny protection programme, as it
had allowed slaughter of unusable draught animais other than cows.
While Qureshi II" continued the same policy, Quraishi III" upheld a
legislation forbidding slaughter of bullocks and bulls up to the age
of 16 years’. State of Gujarat introduced total ban on slaughter of cow
progeny realising vital importance of them for agriculture irrespec-
tive of age in varieties of ways, especially for manure, bio-gas and pest
control. The Supreme Court in Mirzapur Moti Kureshi case" looked into
the aspects of environmental protection involved in organic farming
as Clearly made out in the report of National Commission on Cattle
and other expert reports, perused the enhanced status and content of
"7 (1997) 5 SCC 10: AIR 1997 SC 2298.
08 Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731: 1959 SCR
629.
Abdul Hakim Quraishi v. State of Bihar, AIR 1961 SC 448.
Haji Usmanbhai Hasanbhai Qureshi v. State of Gujarat, (1986) 3 SCC 12.
"l" State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005)
8 SCC 534.
Part IV of the Constitution, referred to the fundamental duty to pro-
tect environment and to have compassion for living creatures, and
upheld the constitutional validity of the Gujarat Act. Since 80 per cent
of farmers in India are small and marginal farmers, and their economy
is based on farm animals, the law is vital for their support. The legal
policy of conservation of livestock has responded to the social needs,
and streamlined the pattern of social transformation. Its application
all over the nation through various state laws will make suitable con-
tribution to sustainable agriculture.
17.4.4 Lawon agricultural marketing

Economic justice thrives on the basis of sound marketing system and
avoidance of any kind of exploitation. Fair price to the commodities
produced by the farmer, adequate warehousing and credit facilities,
efficient transport system, market information and organised agencies
for marketing establish a fair market structure. But, the Indian agricul-
tural market is traditionally tilted against the farmer due to pressure
arising from poverty and inadequate credit facility, malpractices by
traders and middlemen, inadequacy of institutional marketing, lack of
grading and processing and lack of access to market information. This
has called for an interventionist role of the state.
The Central Government has enacted some statutes to meet some of
the problems. Under Section 11 of the Warehousing Corporations Act,
1962 Central Warehousing Corporation is constituted having powers
to
(a) acquire and build godowns and warehouses at such suitable
places in India as it thinks fit;
(b) run warehouses for the storage of agricultural produce, seeds,
manures, fertilisers, agricultural implements and notified
commodities offered by individuals, cooperative societies
and other institutions;
() arrange facilities for the transport of agricultural produce,
seeds, manures, fertilisers, agricultural implements and
notified commodities to and from warehouses;
(d) subscribe to the share capital of a State Warehousing
Corporation;
(e) act as agent of the Government for the purposes of the pur-
chase, sale, storage and distribution of agricultural produce,
seeds, manures, fertilisers, agricultural implements and
notified commodities; and
(f) carry out such other functions as may be prescribed.
introduc-
The Standard of Weights and Measures Act, 1976, aims at
and
ing standard in relation to weights and measures used in trade
a i il Ree eS
commerce. The ultimate objective is to subserve the interests of the
consumers and farmers. The purpose of this Act is to:
(i) replace the bewildering varieties of weights and measures in
use in the country by standards based on the metric system;
and
(ii) provide better protection to the transacting parties by ensur-
ing accuracy in weights and measures.
The Agricultural Produce Grading and Marking Act, 1937 as amended
in 1986, has provided for notification of Agmark standards. In addi-
tion to notification of 181 produces made earlier, 505 new packers
were enrolled in 2004-05. The Directorate of Marketing and Inspection
(DMI) constituted under the Act undertakes marketing research, sur-
vey and in-depth study ‘of the marketing system of various agricul-
tural commodities and effectuates nationwide network for speedy
collection and dissemination of market information. Media is pressed
into service for communicating about daily prices. The new scheme,
‘Development/Strengthening of Agricultural Marketing Infrastructure,
2004, provides services such as assembling, packing, standardisation,
certification, direct marketing from producers to consumers, integra-
tion of processing units with rural producers and market oriented
product planning.
State Governments have played vital role by enacting two sorts
of laws: legislation facilitating cooperative societies, and the one on
agricultural produce marketing for establishing regulated market.
Cooperative marketing provides the advantage of big organisation for
bargaining on behalf of innumerable and scattered small farmers. The
cooperative societies arrange for collection of produce from farmers,
grade and store them, and transport and sell them at fair price along
with giving credit facility during the interim period." Not only food
crops, but also cash crops are given assistance by the cooperative mar-
keting society. The success story of CAMPCO, a cooperative society
that has been helping the arecanut and cocoa growers in Karnataka
and Kerala, in saving the farmers from the artificially created great
slump in prices is an eye opener. In other areas of farming also, coop-
erative marketing has enormously contributed to the well being of
farmers. The exploitation by the dominant intermediaries is neutral-
ised by the cooperatives. After the report by All India Rural Credit
Survey Committee (1951) there has been exponential growth of coop-
erative marketing societies, which not only sell the farm produce but
also supply various agricultural inputs to the farmers. Cooperative
marketing has made a big headway in states of Punjab, Haryana and
Maharashtra. The Shetkari Sanghatan of Maharashtra had rendered
'? A.N. Agrawal, op. cit., at p. 338.
e r t—CO789
yeomen service to the sugar cane growers. But there is decline in the
cooperative marketing movement in Andhra Pradesh, Tamil Nadu,
UP. and West Bengal."3 Diversified services provided by the coopera-
tive marketing, especially processing, storing, grading and arranging
for exports, have augmented the financial competence and personal
confidence of farmers. State laws like Karnataka Cooperative Societies
Act, 1959 provide for democratic participation of members in decision-
making, accountability of the managing board, transparency, financial
accountability of the society, and government's support and supervi-
sion for better administration. These measures persuade for good ZOv-
ernance and efficacy of them in functions like marketing and allied
services.
State legislation providing for regulated market have been influ-
enced by the suggestions and Model Bills recommended by the Union
Government from time to time in addition to popular demand. In dif-
ferent parts of Karnataka, due to historical reasons of multitude of
jurisdictions, diverse laws were prevalent. Under the suggestions of
the Union Government in order to reorient the pattern of regulation
of market and bring uniformity throughout the state, the Karnataka
Agricultural Produce Marketing (Regulation and Deveiopment) Act,
1966 was enacted. Its main features include: comprehensive definition
of “agricultural produce’”"4; regulating the purchase and sale of agri-
cultural produce in specified areas declared as market area and mar-
ket yard; establishing of market committees for trading in specified
type of agricultural produce and separate committees for particular
kind of agricultural produce; representatives of agriculturists, trad-
ers, cooperative marketing societies, local self government and ware-
housing corporations; levy and collection of market fee; formation of
market committee fund; and supervision of functionaries." The fact
that the legislation has been amended 24 times in a span of 42 years’
shows that there were dynamics of change and challenging and sensi-
tive issues involved in agricultural marketing. The trend of develop-
ment is towards prohibition of malpractices by traders, towards pure
and free election to the committee, accountability of office bearers,
facilitating the Committee to perform its functions more effectively,
reasonableness of fee, and integrating with the national policies. Far
reaching changes were brought by an amendment made in 2007. The
legislative objective was restated: to provide for improved regulation
"3° Ibid, at p. 339. . bari
"4S. 2(1) read with schedule include products from animal husbandr y, fibres,
vegetables,
flowers, forest produce, fruits, oilseeds, plantation crops and spices, pulses,
wood and other products.
(Regulation) and
"5 AS. Kumar, The Karnataka Agricultural Produce Marketing
Development Act, 1966 (Sun Publishing House, Bangalo re 2008).
799 Economic Developmen t, Law and Social Transformation
Isl
2a e
AA RSRESEEP ,
EET SATE ESE SST
ent
in the marketing of agricultural produce; development of effici
marketing system; promotion of agri-processing, agricultural export
and the establishment and administration of markets for agricultural
produce; and developing adequate infrastructure for these purposes.
It envisages setting up of “Revolving Fund” to implement the Floor
Price Scheme to protect the interests of the farmers against distress
sale; establishment of private market yard and farmers consumer mar-
ket; and facilitating Contract Farming System to encourage marketing
of agricultural produce at an agreed price, to ensure constant supply
of the produce and to ensure remunerative price through value addi-
tion process."* Quality certification, legal environment for e-trade and
measures for settlement of disputes are the incidental policies.
A brief narration of the scheme in operation under the Karnataka
Act can be made here. Establishment of market is followed by con-
stitution of market committees (APMC). Elected representatives of
agriculturists with reservation to various categories; of traders, com-
mission agents and cooperative societies; and of officers and govern-
ment nominees form the composition of APMC. The Committee has
wide powers and functions to maintain and manage market yards; to
arrange transportation; to supervise the market functionaries through
licensing system; collect, maintain and disseminate market informa-
tion; contribute to the Floor Price Scheme and Raita Sanjeevini acci-
dental insurance scheme; to promote public private partnership for
managing the market yarc’s and carrying out of extension activities;
to levy fees, impose penalties and resolve disputes; to sanction loans;
and to provide facilities for processing and packaging (Sections 63 to
64-B). The Director of Agricultural Marketing regulates trade in mar-
ket yard or private markets and Farmer-Consumer market through the
system of licensing. Sale of agricultural products takes place through
public auction, open agreement or sample references (Sections 72 to 73).
Provisions for prompt payment of the price by the purchaser, rights
and responsibilities of Commission Agents and market functionar-
ies and prohibitions against collection of fee from farmers or against
deduction of weight are also made. Protection against distress sale
of agricultural produce by fixation of minimum support price (floor
price) and assistance to victims of agricultural accidents are regarded
by the Karnataka High Court as measures of welfare, and hence, the
obligation of traders to contribute to the Revolving Fund for these
purposes is not violative of Articles 14 and 19."7 On the whole, the
marketing law has benevolent provisions to safeguard the interests of
farmers. But, the need for extending its effective protective umbrella
"6 [bid, at p. 3.
"” Ramesh Chandra Lahoti v. State of Karnataka, ILR (2005) Kar 4030.
e e ee e t—“C:‘Ct
in the sphere of horticulture is to be properly and promptly responded
in the background of frequent instances of farmers’ agitation against
unreasonable price for vegetables."
17.4.5 WTO and Indian agriculture: challenges

The preamble to Agreement on Agriculture of WTO refers to the long
term objective of establishing a fair and market oriented agricultural
trading system and substantially progressive reductions in agricultural
support and protection that have distorted world agricultural*market.
It insists on improved market access, limitation on domestic support
and gradual reduction of export subsidies. Market access component
required conversion of all forms of import restriction into tariffs, and
reduction of tariffs at the specified rate.
» Domestic supports in the form of subsidies are of three types. The
first type, Amber Box subsidies include both product-specific and
non-product-specific subsidies, whose Aggregate Measure of Support
is to be calculated after deducting the de minimis level and excluding
investment subsidies in developing countries and input subsidies to
low income resource poor producers."? The AMS calculated with base
year of 1986-8 has to be reduced by 20 per cent by 2000 in case of devel-
oped countries and 13.3 per cent by 2004 in case of developing coun-
tries.’*° Green Box subsidies, which constitute the second type and are
permissible, include expenditure on research, training and inspection
services, public stockholding for food aid programmes, and infra-
structure services such as electricity, transport, irrigation, dams and
drainage and environmental programmes. Direct payments made for
non-production, income support, insurance and disaster relief are also
included in the Green Box. There shall be no or minimal trade distor-
tions arising from these measures.” Blue Box subsidies include pay-
ment under the production limiting programme based on fixed areas,
crop yields or livestock numbers or a variable payment up to 85 per
cent of the base level production. Export subsidies are regarded as hav-
ing highly trade distorting effect, amplifying world market distortion.
"8 Tn June 2008, farmers of Kolar in Karnataka, dumped into streets tomatoes
in huge quantity protesting against the price of 2 rupees per kg, the Government's
support price was 50 paise per kg. The Government promised to enhance the price.
19 Debasis Chakraborty and Yashika Singh, “Agricultural Subsidy: The Major
Hurdle to free Trade” in Dipankar Sengupta, Beyond the Transition Phase of WTO
(Academic Foundation, New Delhi 2006) at pp. 75-79. .
20 Gopal Naik, “Tackling Agricultural Subsidies in WTO Negotiations” in South
Asian Yearbook of Trade and Development 2005 (Centad, New Delhi 2005) at pp. 41,
a Prabhash Ranjan, “Agriculture and NAMA Negotiations” (Centad, New Delhi

2006) at p. 7.
792 Economic Developmen t, Law and Social Transformation
g e eee , e
itn SINS AAS nT
Reduction of export subsidy by 36 and 21 per cent respectively by the
developing and developed countries during the period 1995-2000 is
contemplated.
It has been experienced that industrialised countries account for
88 per cent of the total domestic support payments. But India has
a track record of providing only a modest domestic support. It had
never exceeded minimum standard. The total non product-specific
support provided for fertilisers, water, seeds, credit and electricity in
2003 was Rs 45.8 billion, which is less than de minimis level.’ Because
of high subsidy level in developing countries the developed country
exporters are capable of serving the international market at a very low
price as the gap is bridged by subsidy. This has gravely affected the
Indian agriculture by making it highly competitive and less profitable.
Removal of international trade barriers has opened up ways for large
scale inflow of agricultural products of other countries which are pro-
duced at highly cheaper rate by using cheap labour or high subsidy.
From the angle of formers, the Indian agricultural market on edible oil,
food grain and cash crops is adversely affected because of such inflow.
Developing countries like India do not have enough financial resources
to support green box subsidy programmes matching the steps taken by
the developed countries.” It is only rarely that pro-farmer approach
of providing electricity at cheaper rate or free of cost, or loan at low
interest rate etc. is adopted by states. Regarding tariff reduction for-
mula also, since the develuped countries and developing countries did
not start from a level playing field during Urugway round days, the
emerging position is highly unsatisfactory. The inequity of a very high
rate of tariff in developed countries and low rate in developing ones,
even after the AoA ordained cuts, continue to plague the developing
countries. A developing country like India has defensive interest in
agriculture for protecting its vulnerable farm economy. A drastic tariff
cut is unduly burdensome and harsh adjustments are hardly tenable.
Further, unless the tariff-cut exercise is soft on developing countries
and hard on developed countries the position would not be just and
fair.‘** On the whole, WTO has made the developing country’s task of
assisting its farmers even in a deserving circumstance and with just
policies and disciplines, more difficult and onerous. There is the need
to profitably make use of green box support measures especially by
promoting sustainable farming system.
"2 Gopal Naik, op. cit., at p. 56.

2° Ibid, at pp. 58-59.
‘4 Prabhash Ranjan, op. cit., at pp. 8-9.
17.4.6 Legal protection of agricultural labour and the National Rural
Employment Guarantee Act, 2005
The population of people employed as agricultural labour is estimated
to be 23,7 crores." They belong to unorganised sector. Except Kerala,
no other state has gone for specific legislative scheme for their pro-
tection. The relevant central statutes that are applicable include the
Minimum Wages Act, 1948, Bonded Labour System (Abolition) Act,
1976 and Inter-State Migrant Workmen (Regulation of Employment and
Conditions of Service) Act, 1979. Depending upon numbers of work-
ers under the same employer, the Maternity Benefit Act, 1961 is also
applicable. The Dangerous Machines (Regulation) Act, 1983, under the
jurisdiction of which the power threshers are also brought by a notifi-
cation in 2005, provides for compensation to victims or relatives of vic-
tims of accidents occurring from the use of dangerous machines and
resulting in death or bodily injuries. The liability rests with the trader
or supplier of the dangerous machine. It is to be noted that introduc-
tion of mechanisation was to be followed up by new law of welfare of
workers in order to meet the requirements of conflict model of social
transformation. The minimum wages for agricultural labour under the
Minimum Wages Act varies with the states as the states are to notify
the minimum wages from time to time for different classes of works,
work output and duration of work. The wages fixed by states range
from Rs 55 to Rs 125. The regional diversity arising out of federalism in
this context is substantial, and is not very much justifiable. Further, in
the absence of adequate records, non-interference by law-implement-
ing agencies and because of the cumbersome legal procedure for its
enforcement, the law’s efficacy is below the levels of expectation.
The Kerala Agricultural Workers Act, 1974 provides for the wel-
fare of agricultural workers in the state of Kerala and to regulate the
conditions of their work. The land owner shall not employ any agri-
cultural worker other than an agricultural worker who has worked
in the same land during the previous agricultural seasor: (Section
70). The Government is authorised to frame an Agricultural Workers’
Welfare Fund Scheme for the establishment of a welfare fund under
this Act for the welfare of agricultural workers. As per this section, the
Government have constituted an Agricultural Worker’s Welfare Fund
Scheme, 1990 (Section 8). The daily hours of work of an adult agri-
cultural worker, adolescent or child are limited to eight hours and six
hours respectively. The period of work on an agricultural worker shall
not exceed four hours and he shall not work more than four hours
before he has had an interval for rest for at least half an hour (Section
25 India (2006) at p. 608.

ent, Law and Soci
Economic DeveSlopmSO al Transformation
794 ODOR AR h e ae
isi AOI
ive a prescribed wage
17). An agricultural worker is entitled to rece
ed wages for harvest
notified under this Act (Section 18). The prescrib
the prescribed wages
shall be paid at the threshing floor itself. Unless
d from the thresh-
is paid, no portion of the produce shall be remove
the prescribed
ing floor (Section 19) If any land owner pays less than
pay the pre-
wages or refuses to pay the prescribed wages or refuses to
of the union may
scribed wages, the agricultural worker or an official
ed
apply to the conciliation officer for a direction to pay the prescrib
er
wages (Section 20). An appeal against the order of a conciliation offic
regarding the payment of prescribed wages (under Section 20) shall
be preferred within 30 days to the Agricultural Tribunal (Section 23).
The offences under the Act shall be punishable with imprisonment
which may extend to six months’ or with fine which may extend to Rs
1000 or with both (Section 27 to 30). Subsequent conviction of the same
offences shall be punishable with enhanced penalty with compulsory
imprisonment (Section 31). Power of prosecution is vested with the
government, or an officer authorised by the government or any per-
son with previous sanction in writing or the government (Section 33):
There are elaborate provisions about scheme of its implementation and
enforcement officers.
The Second National Labour Commission has suggested for enact-
ment of legislation for protecting the interests of unorganised workers.
The Unorganised Workers-Social Security Act, 2008, giving effect to
this recommendation, provides for protecting the interests of unor-
ganised workers and setting up of National and State Social Security
Boards/Funds by way of contribution of workers, employers and the
Government and formulation of social security schemes in the area of
health care, insurance cover, maternity benefit, housing, and old age
pension, etc. Unorganised worker means a home-based worker, self-
employed worker or a wage worker in the unorganised sector (where
individual owned enterprise or employed workers employ less than 10
workers) and workers in the organised sector who are not getting legal
protection otherwise. Such workers are entitled to benefits under the
welfare schemes. The National and State Social Security Boards recom-
mend and advise the Governments, monitor and review the welfare
schemes. Law provides for registration of the unorganised workers,
role of district administration and workers facilitation centres to assist
them. The law has great potentiality of safeguarding the interests of
crores of agricultural labourers and other workers.
Realising the importance of enhancing economic security through
rural employment guarantee, which had also been strongly recom-
mended by the National Commission to review the working of the
Constitution, in 2005 a landmark welfare legislation of great importance
C eer e e ee =| 795
(eAe
(NREGA) was enacted. The National Rural Employment Guarantee
Act, 2005 aims at the enhancement of livelihood security of the house-
holds in rural areas of the country by providing at least one hundred
days of guaranteed wage employment in every financial year to every
household whose adult members volunteer to do unskilled manual
work and for matters connected therewith or incidental thereto.
According to Section 3(1) of the NREGA, “Save as otherwise pro-
vided, the State Government shall, in such rural area in the State as may
be notified by the Central Government, provide to every household
whose adult members volunteer to do unskilled manual work not less
than one hundred days of such work in a financial year in accordance
with the Scheme made under this Act.” Every State Government shall,
within six months’ from the date of commencement of this Act, by noti-
fication, make a Scheme, for providing not less than one hundred days
of guaranteed employment in a financial year to every household in
the rural areas (Section 4). Every person who has done the work given
to him under the Scheme shall be entitled to receive wages at the wage
rate for each day of work in accordance with MWA. If an applicant
for employment under the Scheme is not provided such employment
within fifteen days of receipt of his application seeking employment or
from the date on which the employment has been sought in the case of
an advance application, whichever is later, he shall be entitled to a daily
unemployment allowance in accordance with Section 7. Persons who
do not accept or do not report to duty or continuously absent them-
selves are disentitled to reliefs under the Act (Section 8). The Act pro-
vides for Central and State Employment Guarantee Councils for evolv-
ing policies, envisages Programme Officer at district level and entrusts
upon Gram Panchayat, the responsibility of the scheme’s implementa-
tion (Section 16). According to Section 17, the Gram Sabha shall moni-
tor the execution of works within the Gram Panchayat. It shall conduct
regular social audits of all the projects under the Scheme taken up
within the Gram Panchayat. The Gram Panchayat shall make avail-
able all relevant documents including the muster rolls, bills, vouchers,
measurement books, copies of sanction orders and other connected
books of account and papers to the Gram Sabha for the purpose of con-
ducting the social audit. NREGA provides for establishing of Central
and State Fund, requirement of compliance with transparency rules,
allocation of respective financial burdens (Central Government to bear
the entire cost of unskilled labour, three fourth of the material cost
and approved levels of administrative expenses), mandating of audit-
ing and centre’s supervision and control of state functions through
administrative directions. The rules framed under the Act detail about
include
the purposes for which the workers could be employed. They
eae oa NE CEU
Eee eas IONE
pro-
schemes of environmental protection like rain water harvesting,
motion of irrigation facilities, flood control, afforestation and drought
proofing.
That the NREGA has been attempting at transforming the rural
India not only by providing stable economic base to households but
also by directing the capital investment to rural areas and creating
valuable assets is reflecting an appreciable contribution of integrated
model of social transformation where people and the state are part-
ners, and better protection of environment is the outcome. Under the
Act, employment is given to 2.13 crore households by the year 2008;
person days of work being 67 crores; beneficiaries being 28 per cent
SCs, 25 per cent STs, 47 per cent others (women in total 49.5 per cent),
works completed three ‘lakhs and ongoing 11 lakhs. The large scale
permanent assets built orienting towards better conservation of natu-
ral resources in the most backward regions of India have potentiality of
rejuvenating agriculture and rural livelihood and contribute towards
sustainable village development. However, there are also criticisms
that there is no planning at the field level, trained staff is not avail-
able, system of supervision by Gram Panchayat is inadequate and that
intervention by the officialdom is excessive. Mihir Shah writes, “Gram
Panchayats have been designated the chief implementing agency but
they have not been provided with the support structure required to
execute the programme. A bottom-up, people-centered approach to
planning and social aud‘t is spoken of but the social mobilisers and
technical personnel to make this a reality have not been supplied. The
biggest employment programme ever undertaken in human history
faces huge crunch of quality human resources.” There are also com-
ments about misappropriation of the opportunity by miscreants and
frauds through possessing fake BPL cards. The brutal murder of a
social activist of Jharkhand (May 2008) who involved himself in social
auditing of NREGA projects points out the violent opposition of vested
interests challenged by the NREGA provisions. While there is the
need for plugging the loopholes and strengthening the performance,
the law’s remarkable contribution to the welfare of rural populace is
worth noting.
In view of the fact that agriculture is not a singular vocation, but is,
a joint venture, mainly, of the tiller’s family members, some of whom
have to work hard and the others harder still, there is need for protec-
tion of their interest in the context of maintenance, partition and suc-
cession.’*7 Everybody, young or old, male or female, has chores allotted
to perform; a share in the burden of toil. The introduction of reforms
26 Mihir Shah, “The real radicalism of NREGA” The Hindu, 22-5-2008.

7 Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125: AIR 1996 SC 1864, para 55.
Industri
ES alisatio n
ELE ofAagricult ure
AAA and humanis
TC tis vipation through law
chapivi, pitied797
in family law into the agrarian life makes the latter comfortable one.
Another serious problem that agriculture has faced in recent times
is scarcity of agricultural labour because of diversion into construc-
tion works, migration to urban places and self-employment schemes.
Socio-economic transformation is clearly visible in country side in this
regard. While legal policy of regulating other avocations for making
labour available in agricultural season was upheld in 1950s,”8 the futil-
ity of such measure is realised in course of time. For attracting agricul-
tural labour through higher wages, better economic strength through
high price for agricultural commodity should be ensured. That is the
imperative of humanisation.
17.4.7 National Agricultural Policy, 2000

National policy on agriculture has undergone different phases of devel-
opment: pre-green revolution land reforms and expansion of irrigation
(1950s); green revolution for enhanced food production responded by
measures for fair price (1960s and 1970s); state assistance to agriculture
through subsidy (1980s); the impact of trade liberalisation on Indian
agriculture which later on turned out to be real threat for several com-
modities produced in the country (1990s); and the New Agricultural
Policy announced in 2000.’ NAP document aims to attain output
growth rate in excess of 4 per cent per annum in agriculture sector
based on efficient use of resources. It seeks to achieve this growth in a
sustainable manner and with equity. It contemplates major expansion
in irrigation and in area under cultivation through integrated water
resource development. The policy aims to promote technically sound,
economically viable, environmentally non—degrading and socially
acceptable use of country’s natural resources—land, water and genetic
endowments." It contemplates conservation of indigenous breeds of
farm cattle, and involvement of panchayats for developing healthy
breeding practices. NAP calls for according very high priority to
evolving location specific and economically viable improved varieties
of agricultural and horticultural crops, livestock species and aquacul-
ture. It advocates land reforms by focusing on consolidation of hold-
ings, redistribution of surplus/waste land among the landless, tenancy
reforms, development of lease market and recognition of women’s
rights in land. Other areas listed for policy attention are private sec-
tor participation through contract farming, assured markets for crops
especially for oilseeds, cotton and horticultural crops, increased flow
128 Chintamanrao v. State of M.P., AIR 1951 SC 118. eit =

29 Ramesh Chand, “India’s National Agricultural Policy: A Critique” in Ramesh
Chand (Ed), op. cit., at pp. 19, 20-22.
130 [bid, at pp. 26-36.
to
of institutional credit, strengthening and revamping of cooperative
credit system. NAP suggests Agriculture Insurance Scheme covering
all farmers and all crops throughout the country with built in provi-
sion for insulating farmers from financial distress." Other measures
suggested under this are (1) enhancing flood proofing and drought
proofing (2) ensuring remunerative prices through announcement of
minimum support price (MSP) and (3) future trading in agriculture
products.
17.4.8 Anote onfarmers’ suicide

Behind each suicide, there is the story of maladjustment, agony,
depression and utter helplessness that overwhelms the consideration
that life itself is a blessing to be prised and a duty to be fulfilled rather
than betrayed by a cowardly and hasty act. Large number of sui-
cides amidst specific class reflects serious situation of helplessness.
According to the National Crime Bureau, on average, 17,627 farmers’
suicides took place in India during 2002-05, and 17,060 in 2006 as com-
pared to 15,747 during 1997-01." While the general average of suicide
instances amidst the population as a whole is 10.6 per 100,000, amidst
the farming population it is a disturbing figure of 13. In nine States
and Union Territories™ its rate is below the general rate whereas in
other States and Union Territories’ it has crossed the general average.
The most affected states a’e Andhra Pradesh, Maharashtra, Karnataka,
Pondicherry, Kerala and Goa. Pondicherry and Kerala top the list
with a FSR figures of 834 and 142 respectively whereas Karnataka,
Maharashtra and Andhra Pradesh have the figures of 36, 30 and 19
respectively. Vidarbha in Maharashtra, Central and Northern parts of
Karnataka and cotton growing areas of Andhra Pradesh are the worst
affected areas.
Radhakrishna Committee (2007) appointed by the Central
Government for studying and reporting about farmers suicide observed
8! bid, at p. 42.
2 Durkheim recognises three types of suicides: the egoistic, altruist and anomic.
Farm suicide falls in the category of anomic suicides, arising out of suicidogenic
impulse growing through restless dissatisfaction in response to the disproportion
between aspiration and satisfaction. Raymond Aron, Main Current in Sociological
Thought (Penguin Books, Harmondsworth 1967, 1976) at p. 43; Also see, R.M. Mohan
Rao (Ed.), Suicides among Farmers (Concept Publishing Co., New Delhi 2004) at p. 13.
83° The Hindu, 31-1-2008; P. Sainath, Farm Suicides Worse After 2001—study, The Hindu,
13-11-07.
'* Bihar, Himachal Pradesh, Jammu & Kashmir, Punjab, Rajasthan, Assam,
Haryana, Orissa, Tripura.
85 Kerala, Tamil Nadu, Pondicherry, West Bengal, Karnataka, Maharashtra, Goa,
Madhya Pradesh, Andhra Pradesh, Gujarat.
Pee Ge ne ee ee
that there is an agricultural crisis, characterised by low growth and
declining productivity, and marked by persistently high dependence
of the population on agriculture. It found that the root cause is not
indebtedness alone and that suicides are only a symptom; and that
stagnation in agriculture, increasing production and marketing risks,
collapse of the extension system and a growing institutional vacuum,
and lack of livelihood opportunities are found to be the primary caus-
es.3° It recommended for immediate remedial measure of reschedul-
ing of loans and waiver of interest, one time relief from interests and
active role of institutional finance. Some of the main reasons for farm-
ers’ suicide identified by other research studies include: inadequacies
in input access (credit, quality seeds, fertilisers, and pesticides at an
affordable price); gaps in adoption of technology (irrational and exces-
sive use of fertilisers and pesticides); failure to ensure remunerative
prices to small and debt ridden farmers; failure of crops due to pests
and drought; and lack of insurance cover.
Literature on farmers’ suicide points out that the suicide is more
amidst farmers growing non-food crops; that slump in global price
for farm products (due to quota free and duty free market condition)
put the farmers into straitjacket; that failure or excess of rainfall and
crop destruction due to pests compelled drastic decisions; that infertil-
ity due to excessive chemical farming made farming uneconomic; and
that change from joint family to atomic family wiped off the assuag-
ing atmosphere at home.” The shattering of hopes about happy life
without feudalistic harassment, sense of alienation from society due
to financial constraints and non-availability of institutional credit,
and failure to create a promising atmosphere due to lack of self-care
skills exacerbated farmers’ misery. Suicide by cotton growers has been
traced to the above factors, which require long term solutions than
temporary aids.
Suggestions to overcome or to mitigate the problem include: con-
tinuation of the state support system and subsidies; debt relief cover-
ing institutional and private loans; strengthening of legal measures to
ensure quality seeds, fertilisers and pesticides at an affordable price;
protecting farmers’ interests in market by establishing crop specific
Boards and Cooperatives. Switch over to organic farming of cultiva-
tion and self-reliant production system and civil society activities of
counselling, confidence-building, and networking for access to inputs
.
136 M.S. Swaminathan, “Dealing with the agrarian crisis” The Hindu, 28-5-2007
Analysis of Some Causes” 64; A.
37 C.S. Murty, “Suicide of Cotton Farmers:
P. Leela, “Globalisation of
Prasad Rao, “Why the Suicides and what is the Crisis?” 53;
Rao (Ed_), Suicides
agricultural trade and cotton farmers’ suicide” 75 in R.M. Mohan
among Farmers (Concept Publishing Co., New Delhi 2004).
Economic Developm Transformation
ent, Law and Social SS
800 da Pa ce ey
iia
humanising efforts
also would help in reduction of suicide rate. Law’s
should be supported by social policy.
17.5 Industrial reform: free enterprise versus State regulation

the
On the eve of Independence, it was emphasised by Nehru that
rapid agricultural and industrial development of our country, rapid
e
expansion of opportunities for gainful employment, progressiv
reduction of social and economic disparities, removal of poverty and
attainment of self-reliance should be attained. This is reflected in the
Industrial Policy Resolution, 1948. The constitutional policy of develop-
ment with economic justice also accentuates this idea. The Industries
(Development and Regulation) Act, 1951 was enacted to implement
the objectives of industrial policy through the system of licencing. The
law is applicable to the scheduled industries that include metallurgi-
cal industries, industrial machinery, transportation, fertilisers, textiles,
cement, defence, railway, etc.
The Central Government is vested with the power of registration
of existing industries, issuing of licence to new industries, expansion
of old industries, manufacture of new articles and changing the loca-
tion of industries. Small scale industries, industries whose fixed assets
do not exceed one crore rupees and the non-scheduled industries are
not under the requirement_of getting licence. The Government has
the power of investigating the affairs of industries whose volume of
production is decreasing, or product quality is deteriorating or prod-
uct price increasing (Section 15). It may issue appropriate directions to
abstain from practices that result in fall in production, to regulate the
production of articles, to stimulate the development of the industry
and to alter the price (Section 16). It may also investigate about the
companies under liquidation to examine whether in the public interest
it shall be restarted, the feasibility of restart and the steps that shall be
taken (Section 15-A). The Government may take over the management
of any industry which fails to comply with the directions issued under
Section 16 or any industry upon which investigation is conducted
under Section 15. Under Section 18-AA, if from the documentary or
other evidence in its possession, the Central Government is satisfied,
in relation to an industrial undertaking, that: (a) the persons in charge
of such industrial undertaking have, by reckless investments or crea-
tion of encumbrances on the assets of the industrial undertaking, or by
diversion of funds, brought about a situation which is likely to affect
the production of articles manufactured or produced in the indus-
trial undertaking, and that immediate action is necessary to prevent
such a situation; or (0) it has been closed for a period of not less than
Industrial reform: free enterprise versus State regulation
el
i eee rr “‘ 801
three months’ (whether by reason of the voluntary winding up of the
company owing the industrial undertaking or for any other reason)
and such closure is prejudicial to the concerned scheduled industry
and that the financial condition of the company owing the industrial
undertaking and the condition of the plant and machinery of such
undertaking are such that it is possible to restart the undertaking and
such restarting is necessary in the interests of the general public, it
may notify for taking over of the management of the industry. The
prejudicial contracts may be either cancelled or varied after the take
over. Thus, the overall thrust was towards better functioning, effi-
ciency and social responsibility on the part of industrial undertakings,
and the legal policy was one of extensive regulation in order to attain
this objective.
The Industrial Policy Resolution of 1956 identified the following
three categories of industries: those that would be reserved for devel-
opment in public sector, those that would be permitted for develop-
ment through private enterprise with or without State participation,
and those in which investment initiatives would ordinarily emanate
from private entrepreneurs.'* Acceleration of rate of industrialisation
by developing heavy industry, development of infrastructure, widest
diffusion of ownership and management of private industry, preven-
tion of monopolies and concentration of ownership and expansion of
cottage and village industry were the objectives emphasised in the
Industrial Policy Resolution. Keeping in view the changing industrial
scene in the country, the policy has undergone modifications from
time to time. Industrial licensing policy and procedures have also been
liberalised. The Industrial Policy statement of 1973, inter alia, identi-
fied high-priority industries where investment from large industrial
houses and foreign companies would be permitted. The Industrial
Policy Statement of 1977 laid emphasis on decentralisation and on the
role of small-scale, tiny and cottage industries. The Industrial Policy
Statement of 1980 focused attention on the need for promoting compe-
tition in the domestic market, technological upgradation and moderni-
sation. The policy laid the foundation for an increasingly competitive
export based industry and for encouraging foreign investment in high-
technology areas. Since 1986, the accent was on opening the domestic
market to increased competition and preparing our industry to stand
on its own in the face of international competition. The public sector
was freed from a number of constraints and given a larger measure of
autonomy. The industrial licensing system has been gradually mov-
ing away from the concept of capacity licensing and reservations for
138 AN. Agrawal, op. cit., at p. 456.

802 Economic Deve and Social Transformation
lopment, Law SE
ec I T DER
ii
of greater flexibility and
public sector undertakings towards an ethos
private sector enterprise.
Government
The Statement of Industrial Policy, 1991 made by the
d policy
of India said, “Government will continue to pursue a soun
p, devel-
framework encompassing encouragement of entrepreneurshi
research
opment of indigenous technology through investment in
the
and development, bringing in new technology, dismantling of
regulatory system, development of the capital markets and increas-
ing competitiveness for the benefit of the common man. The spread of
industrialisation to backward areas of the country will be actively pro-
moted through appropriate incentives, institutions and infrastructure
investments.” Government committed itself to endeavour to abolish
the monopoly of any sector or any individual enterprise in any field of
manufacture, except on strategic or military considerations and open
all manufacturing activity to competition. It decided to strengthen
the public enterprises making good or reasonable profits by provid-
ing greater degree of management autonomy and by introducing com-
petition in these areas by inviting private sector participation. It also
planned for disinvestment of selected enterprises in order to provide
further market discipline to the performance of public enterprises. It
also thought of revamping of a large number of chronically sick pub-
lic enterprises incurring heavy losses in order to meet the competi-
tive market. The Government also decided to take a series of meas-
ures to unshackle the Ind.an industrial economy from the cobwebs
of unnecessary bureaucratic control. These measures complement the
other series of measures being taken by Government in the areas of
trade policy, exchange rate management, fiscal policy, financial sector
reform and overall macro economic management.
One of the major purposes of industrial regulation is avoidance of
concentration of material resources of production to the common det-
riment and prohibition of unfair trade practices. Keeping this in mind,
the Monopolies and Restrictive Trade Practices Act was passed in 1969.
The requirement of registering all the non-government undertakings
having assets more than Rs 20 crores either by itself or taken together
with its interconnected undertakings was imposed. Prior approval by
the Government was required for their expansion. MRTP Commission
was vested with the power of making enquiries into monopolistic or
unfair trade practices either on the basis of consumers’ complaint or on
suo motu satisfaction. It had the power to stop practices prejudicial to
public interest. With the emphasis placed on productivity in the Sixth
Plan, major amendments to the MRTP Act were carried out in 1982 and
1984 in order to remove impediments to industrial growth and expan-
sion. This process of change was given a new momentum in 1985 by
Industrial reform: free enterprise versus State regulation 803
e e OC
an increase of threshold limit of assets. Emergence of economic liber-
alisation persuaded the Central Government to herald the new indus-
trial policy in 1991. For accommodating the growing complexities of
industrial structure and economies of scale in order to ensure high
productivity and competitive advantage in the international market,
big change in the legal policy was required. Abandoning of pre-entry
scrutiny of investment and omission of the rule of prior approval for
merger, amalgamation and take over of monopoly industries were the
policies contemplated in 1991. Repeal of crucial provisions of MRTP
Act and passing of Competition Act created a new legal environment
giving advantage to free enterprise.
The liberalised Economic Policy formulated by the Government of
India greatly contributed to the rapid industrial growth in the private
sector besides substantial inflow of capital from abroad in the form
of Foreign Direct Investments (FDI). States like Karnataka extended
the incentives and concessions to stimulate the industrial growth. In
2006 the government announced the state industrial policy aiming at
increasing the percentage in GSDP growth, strengthen manufactur-
ing industry; increase share of exports from Karnataka in the National
exports, to generate additional employment to at least 10 lakh persons
in the manufacturing and service sectors, promote diversified indus-
trial base; reduce regional imbalance in the matter of economic devel-
opment and employment opportunities and ultimately aim at overall
socio-economic development of the State. |
In the new millennium, 1oo per cent foreign direct investment is
allowed in the manufacture of chemicals. Pharmaceutical Policy, 2002
has the following features: industrial licensing for all bulk drugs
cleared by the Drug Controller General, permission for 100 per cent for-
eign investment, automatic approval of foreign technology agreement
and impetus to R&D and systematisation of price control mechanism.
In order to promote exports and accelerate economic growth, the
Special Economic Zones Act, 2005 is passed. SEZ is specifically deline-
ated duty free enclave, which is deemed to be foreign territory for the
purpose of trade operations, duties and tariffs. The benefits include 100
per cent FDI in the manufacturing sector, income tax benefits to devel-
opers for 10 years’, exemption from service tax/CST, facility to retain for-
eign exchange, non-requirement of industrial and import license and
exemption from excise duty. The Central or State Government or any
person may propose to establish SEZ by identifying the suitable area.
The proposal will be processed by the Government and considered by
the Board of Approval. The guidelines for notification of SEZ include
of exports of
generation of additional economic activity, promotion
or foreign
goods and services, promotion of investment by domestic
804 Economic Development, Law and Social Transf ormation
na t
imamat e Ese BERARE e
SIS ANE 2 AAS. SEAM S
sources, creation of employment opportunities and maintenance of
sovereignty and integrity of the nation (Section 5). After obtaining
the letter of approval, the developers are authorized to develop under
the supervision of Development Commissioner. SEZ authority consti-
tuted under the Act has the responsibility of reviewing the working of
SEZ. While generally the area shall have a minimum extent of 1000 ha,
there could be smaller zones with specific activities. The acquisition
of fertile land for SEZ, inadequacy of compensation and rehabilitation
measures, hazards to environment, contracting system of labour with-
out full-fledged application of labour law, corporate control on land
and revenue loss have been points of dissatisfaction, which deserve
attention from social transformation perspective."
The trend of development in the industrial sector, as can be gath-
ered from the above exposition, is that the era of step-to-step regula-
tion of industry and meticulous care to avoid concentration of eco-
nomic power has given place to free atmosphere for massive schemes
and investments and greater facilitative role of the Government in
enabling more competitive ability to face the international market.
Instead of non-concentration of resources, efficacy and competitive-
ness have become the new mantra. While the IT and BT industries
flourish because of new policy, globalisation’s adverse impact result-
ing in closure of consumer goods industries and agri-based industries
has been a matter of serious concern. Loosening of regimentation for
financial and work disciplir.e is a side effect of liberalisation, which is
to be made good by self regulation.
17.6 Environmental protection versus development:

modernisation’s dilemma and law
Nature and mankind are inseparable parts of environment.’
Mankind’s indiscriminate use of natural resources in the course of
development has led to serious problems. The dichotomy experienced
in this sphere is sharp because of the fact that both the goals of envi-
ronmental protection and development are essential to the society.
Regarding environment, ethical, religious and emotional considera-
tions have projected high ideals either for the good of the mankind
(anthropocentric approach) or for the sake of nature itself (eco-centric
approach). Major religions and moral philosophies have advocated self-
restraint in the matter of use of natural resources, and some have gone
Corporate Hijack of Land (Navadanya, New Delhi 2007).

'#°'S. 2(a) of the Environment (Protection) Act states, “environment includes water,
air and land and the inter-relationship which exists among and between water, air
and land, and human beings, other living creature, plants, micro-organism and
property.”
Enviro
SE ienmenta l
Bao a protect ion
cars versus
se develop
tel ment nr 805
rd
for worshipping prominent components of nature with emotional and
ritualistic practices." The traditional understanding that all proper-
ties and material resources are gifts of Almighty; that humanity has
no justification for their wasteful, polluting and disastrous uses; and
that it has responsibility towards future generations about their safe
availability has not only great amount of wisdom but also passionate
persuasion for fulfilling such commitments to eternity.” Kautilyan
jurisprudence and Smritis reflect detailed rules for protection of forest
and wild life.*4
17.6.1 Modernisation’s impact

Introduction of modernisation in various spheres of economic activ-
ity—agriculture, industry, mining, forest, trade, transport, and animal
husbandry—with commercial outlook and technological competence
brought big attitudinal change for maximisation of profits. Scientific
knowledge was used to deplete the resources in order to meet the chal-
lenges of fast growing population and striding expansion of interna-
tional market. In consequence, what happened was something pictur-
esquely depicted by O. Chinnappa Reddy, J. in Sri Sachidananda Pandey.
He had observed, “Industrialisation, urbanisation, explosion of popu-
lation, over-exploitation of resources, depletion of traditional sources
of energy and raw materials, and the search for new sources of energy
‘and raw materials, the disruption of natural ecological balances, the
destruction of a multitude of animal and plant species for economic
reasons...are all factors which have contributed to environmental
deterioration." Environmental disasters, ozone layer depletion, cli-
mate change, pollution of rivers, of water bodies and air, soil erosion,
ground water collapse, endangerment of several species of wild life
and loss of forest wealth occurred due to callous attitude towards
nature. Big dams submerged vast area of forest cover, brought soil ero-
sion and rendered the soil unhealthy either due to water logging or too
much of chemical farming. Instead of becoming temples of prosperity,
they became veritable sources of ecological imbalance. The expanding
desertification became unwanted gift of unplanned resource use.
41. P Ishwara Bhat, “Environmentalism, Religion and Eco-Deistic Jurisprudence”

(2002) Indian Journal of Environmental Law.
2 bid; Ishopanishad; the concept of devaruna also emphasises the same; also see,
Lumpur
Samiul Hasan, Philanthropy and Social Justice in Islam (AS Noordeen, Kuala
2007) at pp. 2-7.
43 V.K, Gupta, Kautilyan Jurispruence (1987) at p. 159.
44 Sachidanand Pandey v. State of W.B., (1987) 2 SCC 295: AIR 1987 SC 1109.
806 Economic Development, tiaLaw and Social Transfo rmation
55 a Isa t Ratha iia iiss: anslivat E Atso ieCANIE
17.6.2 Concept of sustainable development as the solution
One method of resolving the conflict between environment and devel-
opment is balanced integration of their components in the concept of
sustainable development itself. The concept is more comprehensive
than the original concept of economic development inasmuch as it pro-
poses a model of growth and human activity that explicitly includes
environmental considerations and the idea of allocating and conserv-
ing resources over time and in a sustainable manner. The Stockholm
Conference speech of Prime Minister Indira Gandhi reflected the need
to use development for protection of environment in the background
of grim reality that poverty and need are the greatest polluters. She
said, “The environmental problems of developing countries are not the
side effects of excessive industrialisation but reflects the inadequacy of
development.”"** According to her, instead of destroying environment,
development would be a strategy for improving the environment for
living, of providing food, water, sanitation and shelter, of making
the deserts green and mountains habitable. The UN Conference on
Human Environment declared (Stockholm Declaration) in 1972 that
man is both creature and moulder of environment; that the protection
and improvement of human environment is major issue which affects
well-being of people and economic development throughout the world;
that environmental problems in developing countries are caused by
underdevelopment and those in the industrialised countries by tech-
nological development; ana that economic and social development is
essential for ensuring a favourable living and working environment
for man and for conditions on earth that are necessary for improve-
ment of the quality of life," |
The World Commission on Environment and Development
(Brundtland Commission) Report, 1987 defined sustainable devel-
opment, as follows, “Sustainable development is a development that
meets the needs of the present without compromising the ability of
future generations to meet their own needs.” It requires meeting the
basic needs of all and extending to all the opportunity to satisfy their
aspiration for a better life. It is a process of change in which the exploi-
tation of resources, the direction of investments, the orientation of tech-
nological development, and institutional change are all in harmony
and enhance both current and future potential to meet human needs
and aspirations. The strategies include meeting essential needs for
jobs, food, energy, water and sanitation; ensuring sustainable level of
population; conserving and enhancing the resource base; reorienting
“° Extracted in Shyam Divan and Armin Rosencranz, Environmental Law and
Policy
in India (2nd Edn., Oxford University Press, New Delhi 2001) at p. 32.
;
6 Preamble paras 1, 2, 4 and 6; and principle 8.
technology and management risk; and merging environment and eco-
nomics in decision making. The Report has treated sustainable devel-
opment predominantly as an instrument of increasing the material
standard of living. That was a convenient and pragmatic approach to
the different types of environmental problems faced by countries with
different levels of development and to motivate them for a green think-
ing with gain."7 Principles 3 and 5 of the Rio Declaration 1992 believe
that meeting the needs of the poor in this generation is an essential
aspect of sustainable development, and would be meeting the needs
of subsequent generations. “In order to achieve sustainable develop-
ment, environmental protection shall constitute an integral part of
the development process and cannot be considered in isolation from
it.” (Principle 4). Spreading a broad-based agenda, the earth summit
aspired for international cooperation, integrated approach, and par-
ticipation of people, indigenous communities and women in the mis-
sion of balancing between environment and development. The shift
from anthropocentrism to eco-centrism in the Rio and post-Rio texts
reflects post-modernist radical green thinking with hitherto margin-
alised people’s participation. The Copenhagen Declaration on Social
Development, 1995 has stated, “Equitable social development that
recognises empowering the poor to utilise environmental resources
sustainably is a necessary foundation for sustainable development.”
The precaution principle, public trust doctrine, polluter pay principle,
inter-generation equity and non-corruption are emphasised by the
international legal principles as facets of sustainable development.
Thus, environment is integral to the overall process of development.
Change in its condition is the product not only of natural events, but
also of the application of development models, practices and lifestyles.
Any modification of the physical environment has important socio-
economic consequence that affects the quality of life. In India, from
Fifth Five Year Plan (1974-79) onwards, emphasis has been laid on
sound environmental and ecological principles in various spheres of
planned economic development for harmonising between these two
factors.’ In K.M. Chinnappa the Supreme Court pronounced:
“Sustainable development is essentially a policy and strategy for
continued economic and social development without detriment to the
47 Michael Redclift, “The Meaning of Sustainable Development” (1992) 23

Geoforum 305 at p. 399 extracted in Lakshman D. Guruswamy (Ed), International
Environmental Law and World Order (West Group, St. Paul Minn 1999) at pp. 323-25;
Daniel Barstow Magraw and Lisa D. Hawke, “Sustainable Development” in Daniel
Bodansky, The Oxford Handbook of International Environmental Law (Oxford University
Press, Oxford 2007) at pp. 613, 618-19.
(1997) at p. 54
148 Dwivedi, India’s Environmental Policies, Programmes and Stewardship
cited in Shyam Divan op. cit., at p. 34.
Te
ee
which continued
environment and natural resources on the quality of
thinking of
activity and further development depend. Therefore, while
the ability of
the developmental measures the needs of the present and
be kept in
the future to meet its own needs and requirements have to
tten.
view. While thinking of the present, the future should not be forgo
-
We owe a duty to future generations and for a bright today, bleak tomor
row cannot be countenanced.’"
The dichotomy between the environment and development is more vis-
ible in the sphere of big projects resulting in the ouster of large number
of inhabitants from project sites; in redressing the grievances of pollu-
tion victims; and in planning for conservation of resources. The judi-
cial approach to these problems as reflected in some important cases
and legislative policies on the matter can be briefly examined.
17.6.3. The controversy of large projects and the balancing strategy

In Banawasi Seva Ashram, where the question of rehabilitating the for-
est dwellers from site of thermal project proposed to be established in
forest area, the Supreme Court observed:
“Indisputably, forests are a much wanted national asset. On account
of the depletion thereof ecology has been disturbed; climate has under-
gone a major change and rains have become scanty. These have long
term adverse effects on national economy as also on the living process.
At the same time, we cannot lose sight of the fact that for industrial
growth as also for provisi m of improved living facilities there is great
demand in this country for energy such as electricity. In fact, for quite
some time the entire country in general and specific parts thereof in
particular, have suffered a tremendous setback in industrial activity for
want of energy. A scheme to generate electricity, therefore, is equally of
national importance and cannot be deferred.”
Regarding various developmental projects such as large dams, mining
and chemical industries resulting in eviction of site occupants, defor-
estation and pollution, similar questions have been raised. This is in
addition to the problems of various sites and causes of pollution in day-
to-day activities. The approach of facilitating development and promo-
tion of livelihood within the legal framework along with protection of
environment was adopted in mainstream cases. As a corollary, where
environment could not be protected without stopping the develop-
mental activity, development would not be allowed. For example, the
job loss arising from closure of lime quarry mining was considered as
a price to be paid for protecting the healthy environment.'*°
'° T.N. Godavarman Thirumalpad v. Union of India, (2002) 10 SCC 606: AIR 2003 SC
724 at p. 737 per Arijit Pasayat, J.
'° The Rural Litigation and Entitlement Kendra v. State of U.P., (1985) 2 SCC 431: AIR
1985 SC 652 at p. 656.
Environmental protection versus development 809
r ete —“—i‘“
It is significant to find meaningful human rights discourse in the
balancing approach. In Samatha the Supreme Court observed, “Since
the Executive is enjoined to protect social, economic and educational
interest of the tribals and when the State leases out the lands in the
Scheduled Areas to the non-tribals for exploitation of mineral resources,
it transmits the correlative above constitutional duties and obligation
to those who undertake to exploit the natural resources should also
to improve social, economic and educational empowerment of the
tribals.”">" Stoppage of illegal mining was ordered.
The majority in Narmada Bachao Andolan, looked to right to water as
a human right and observed, “To feed the increasing population, more
food grain is required and effort has to be made to provide safe drink-
ing water, which, at present, is a distant reality for most of the popula-
tion specially in the rural areas. Keeping in view the need to augment
water supply, it is necessary that water storage capacities have to be
increased adequately in order to ward off the difficulties in the event
of monsoon failure as well as to meet the demand during dry season.
It is estimated that by the year 2050 the country needs to create storage
of at lease 600 billion cubic metre against the existing storage of 174 bil-
lion cubic metre. Dams play a vital role in providing irrigation for food
security, domestic and industrial water supply, hydroelectric power
and keeping flood waters back.”* Regarding rehabilitation and relief
to 40,000 families evicted from 245 villages, the Court emphasised on
appropriate and prompt measures and observed, “Displacement of
these people would undoubtedly disconnect them from their past, cul-
ture, custom and traditions, but then it becomes necessary to harvest
a river for larger good. A natural river is not only meant for the people
close by but it should be for the benefit of those who can make use of
it, being away from it or nearby...The R and R plans are required to be
specially drafted and implemented to mitigate problems whatsoever
relating to all, whether rich or poor, land owner or encroacher, farmer
or tenant, employee or employer, tribal or non-tribal.’"%> The judgment
151 Samatha v. State of A.P., (1997) 8 SCC 191: AIR 1997 SC 3297 at p. 3343.
182 Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664: AIR 2000 SC 3751
paras 88-89. The court further observed, “On full development, the Narmada has a
potential of irrigating over 6 million ha of land and generating 3000 Mw of power.
The present stage of development is very low with only 3 to 4 Maf of waters being
used by the party States for irrigation and drinking water against 28 Maf availability
of water at 75 per cent dependability as fixed by NWDT and about 100 Mw power
developed. 85 per cent of the waters are estimated as flowing waste to sea. The project
will provide safe and clean drinking water to 8215 villages and 135 towns in Gujarat
these
and 131 villages in desert areas of Jalore District of Rajasthan, though against
only four villages fully due to
only 241 villages are getting submerged artially and
the project.”
93 Para 267.
a a
is criticised for failure to provide effective rehabilitative measures
before eviction. .
The propriety of large dam policy is assessed by an indepe ndent
body, World Commission on Dams, which submitted its report in
2000.54 Referring to numerous large dams constructed all over the
world in 20th century, WCD noted that large dams have made an
important and significant contribution to human development; that
frequently, an unacceptable and unnecessary price has been paid to
secure those benefits; that lack of equity in the distribution of ben-
efits has called into question the value of many dams in meeting water
and energy development needs; and that it has necessitated positive
resolution of competing interests amidst all whose rights and risks are
involved.*® The conflicts of interests amidst different nations or fed-
erating units or different sections of people—urban/rural, upstream/
downstream, agricultural/industrial etc—have called for equitable
solutions based on people’s participation and negotiation. Its assess-
ment of large dams discloses: delay in execution, shortfall of target,
irreversible loss of species and ecosystems, and failure to mitigate
environmental and social costs. It suggested for inclusion of core val-
ues such as equity, efficiency, popular participation, sustainability
and accountability in decision making. Participatory decision making
by use of rights-and-risks approach shifts the center of gravity in the
dams debate to option assessments and improvement of performance
from human rights perst ective.%° According to Upendra Baxi, “This
convergence between human development and human rights ideolo-
gies is significant because it extends beyond mere economic and insti-
tutional analysis of development, to a theory fundamentally grounded
in human rights concepts. Moreover, in underlining the universal
nature of human rights, it progresses beyond the relativistic argu-
ments behind which a great deal of human suffering has been hidden.
It is to be hoped that environmental thinking will also follow.”57 Thus,
consensus based arrangement for sustainable development triggered
'* About growth of large dam culture as a feature of modernisation and

globalisation and the story of WCD and its legitimacy, see, Kader Ismal, “Introduction:
World Commission Dams Report, Dams and Development” (2001) 16 Am. U. Intl’.
Rev. 1411.
'° Executive summary, “The Report of the World Commission on Dams” (2001) 16
Am. U. Intl’. Rev. 1435.
6 Ibid, at p. 1445.
*” Upendra Baxi, “What happens Next Is Up to You: Human Rights at Risk in
Dams and Development” (2001) 16 Am. U. Intl’l. Rev. 1507 “Dam projects can result
in communities living ‘for decades starved of welfare and development investments.
This misery is not confined to large dams, but is a feature of all major public projects
(at least in the South) where the mere formation of executive intention to locate these
in certain areas entails suspension of all developmental activities.”
Environmenta
stage ike GOSlEAsprotect ion versus development
ones eA eect uh ke tree ea 811
by human tights perspective builds up appropriate parameters of
social transformation. It is doubtful whether law on Inter-State water
dispute in India has been influenced adequately by considerations of
environmental protection and human rights. For example, the pub-
lic trust doctrine is unfortunately given a low key treatment and the
right-risk-management with consensus based on human rights was
not perceived in the Cauvery award** while stating that the responsi-
bility of ensuring regular flow of water in the Cauvery shall be entirely
borne by only one of the riparian states.
In view of the fact that vast number of people have been displaced
from project sites and less number of people are rehabilitated in India,
the WCD suggestions are to be seriously implemented. Scholars have
viewed that large dams are ecologically unsound and economically
unsound when the environmental and health costs are not properly
accounted for." While large dams have contributed to the cause of
green revolution and tremendous increase in food production, elec-
tricity generation and flood control, the adverse impact upon environ-
ment is also realised.
The Supreme Court in K.M. Chinnappa considered lack of EIA report
and temporary character of work permission for mining iron ore in
Kudremukh as factors compelling for closure of mining activity car-
ried on endangering rich and diverse biological resource.” The policy
of disallowing mining activity that violated the principle of sustain-
able development and other conditions of environment protection law
had been enunciated in earlier cases on mining in Doon Valley" and
Aravalli hill range." Y.K. Sabharwal, J. observed in the latter case:
“The development and the protection of environments are not ene-
mies. If without degrading the environment or minimising adverse
effects thereupon by applying stringent safeguards, it is possible to
carry on development activity applying the principles of sustainable
development, in that eventuality, the development has to go on because
one cannot lose sight of the need for development of industries, irriga-
158 The Report of the Cauvery Water Dispute Tribunal with the decision, Vol. V
(Government of India, New Delhi 2007). as
‘59 According to one estimate (Walter D’Souza) the evictees numbered 30 millions
by 1999 and only 25 per cent have been rehabilitated. Shyam Divan op. cit., at p. 417.
160 Ramaswamy R. Iyer, Water: perspectives, Issues, Concerns (Sage Publications, New
Delhi, 2003) at pp. 126-29; Shyam Divan op. cit., at p. 417. .
161 For a discussion see, B.N. Kirpal, J. in Narmada Bachao Andolan v. Union of India,
(2000) 10 SCC 664. .
182 TN. Godavarman Thriumalpad v. Union of India, (2002) 10 SCC 606: AIR 2003 SC
724.
16 Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504; Rural
537.
Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC
i M.C. Mehta v. Union of India, (2004) 12 SCC 118: AIR 2004 SC 4016; per Y.K.
Sabharwal, J. para 48.
Economic Developmen t, Law and Social Trans formation
812 ree a a ie PS
ak
improve
tion resources and power projects, etc. including the need to
A balance
employment opportunities and the generation of revenue.
ed
has to be struck. In such matters, many a times, the option to be adopt
is not very easy or ina straitjacket. If an activity is allowed to go ahead,
there may be irreparable damage to the environment and if it is stopped,
there may be irreparable damage to economic interest. In case of doubt,
however, protection of environment would have precedence over the
economic interest. Precautionary principle requires anticipatory action
to be taken to prevent harm.”
It is submitted, the benefit of doubt given to environmental protection
is falling in line with the eco-centric or post-development approach,"®
marking a breakthrough towards restoring the traditional thinking
about center-staging environment in human activity.
17.6.4 Constitutional orientation for balancing approach

Identification of right to wholesome environment in the gamut of posi-
tive components of right to life under Article 21 is one of the great
developments that enabled judicial scrutiny of environmental issues.’
Since right to development, right to food and drinking water have
also similar status, the balancing technique started in the domain of
Article 21 itself. Putting environmental right in the galaxy of human
rights and welfare policy has this inevitable consequence. In fact, trac-
ing of right to environment was done by recourse to Articles 48-A and
51-A, which are essentially post-modernist policies for eco-friendly
development and citizens’ participation for conservation of natural
resources. When the genesis of right to environment has such complex
background, solid application of convergence amidst environment,
development and consensus or concerted act become an imperative.
The responsibility of environmental protection is cast upon whole
society by virtue of Articles 48-A and 51-A. Corporate social respon-
sibility for avoidance of pollution and development of environment
directly flows from constitutional scheme because of these meas-
ures. The pollinating work of the NGOs fruitions the balancing phe-
nomenon.'” The sharing of responsibility by the federal structure
and Panchayati Raj through effective cooperation and coordination is
also contemplated under the Constitution. More meaningful relation
between Part III and Part IV of the Constitution has also contributed
for better protection of cow progeny.’
° Daniel Barstow Magraw and Lisa D. Hawke, op. cit.
'¢ P. Ishwara Bhat, Fundamental Rights (2004) Ch. 8.
” P. Ishwara Bhat “Corporate Social Responsibility Through Law: The Role of the
Third Sector Organisations” paper presented in International Seminar at Trishakti
University, Jakarta on 27-8-2008.
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534.
Environmental protection versus development
Ss
a etnOe aee 813
teed
Judicial activism in this sphere has greatly contributed towards
moulding of the law in the right direction of balancing. Holding that
sustainable development is an integral part of right to life, the Supreme
Court in N.D. Jayal remarked that construction of dam was symbol of
wholesome development. By treating religious freedom to use loud-
speakers as subordinate to right to environment, pro-environment
approach is reinforced.’” Giving advantage to environment in case of
tie between the two values is the latest approach influenced by deeper
environmentalism.’7'
The refined techniques of PIL in the form of continued supervision,
recurring interim orders, involvement of environment experts, award
of huge costs and monitoring of the decision’s implementation through
the clause on doing complete justice have added to the balancing tech-
nique.’” Protection of human rights of indigenous people is another
sphere that witnessed balancing of environment and development in
the light of consensus, welfare and empowerment.
17.6.5 The thrust in legislative framework for balancing task

The domestic legislative policy of India is, by and large, aligning with
the international environmental law, and aspires for striking a fair
balance between development and environment.’3 Express reference
to Stockholm Declaration, 1972 in the Air Act, 1981 and Environment
(Protection) Act, 1986, and use of central legislative power for imple-
mentation of international commitments point out the possibility of
percolation of the sustainable development idea as the major policy
choice in the task of environmental protection. The gradual ascend-
ance of eco-centric approach is finding a place in recent additions. The
EPA has emerged as an omnibus umbrella type of law with potential-
ity of penetrating into various spheres, transcending the centre-state
dichotomy. As Leelakrishnan remarks, “In an area where regulatory
centralism is warranted for maintaining uniform standards, delegation
of both deliberative and executive powers to subordinate authorities
and agencies helps to achieve the objectives to a considerable extent.”
The rule-making power has given rise to vast body of subordinate law
169 N.D. Jayal v. Union of India, (2004) 9 SCC 362: AIR 2004 SC 867.
'” Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Assn., (2000) 7
SCC 282: AIR 2000 SC 2773.
71 M.C. Mehta v. Union of India (Aravalli mining), (2004) 12 SCC 118: AIR 2004 SC
4016.
2 P. Leelakrishnan, op. cit., at pp. 194-12. ine :
3 There is considerable body of statutes (about 200) directly or indirectly governing
the field. Indrajit Dubey, loc. cit., at. pp. 66-67. ;
74 P Leelakrishnan, Environmental Law in India (2nd Edn., Lexis Nexis Butterworths,
814 Economic Development, Law and Social Transfo rmation
e
Oi oS e ee
touching upon various sites of pollution’ and upholding the value of
sustainable development. Imaginative filling of the gap through rules
has strengthened the balancing approach. In addition to the command
and control model through licensing, inspecting and monitoring sys-
tem, participative approach under Environment Impact Assessment
has added its significant contribution to effectuate happy combination
of environmental values and developmental needs.
Integrated approach has emerged as a key mechanism for sustain-
able development. The very definitions of the terms “environment”,
“environmental pollution” and “handling” have been comprehensive
to cover all the significant areas of human activity vis-a-vis nature.’”°
This has enabled and compelled the Government to tackle the problem
in a holistic manner. Section 3(2) gives a detailed list of central gov-
ernment’s powers to collect and disseminate relevant information, to
establish and provide technological assistance for prevention, control
and abatement of pollution, set standards of quality, inspect and inves-
tigate and avoid accidents. Persons carrying on any industry, opera-
tion or process are prohibited from committing environmental pollu-
tion and from handling hazardous substance without complying with
the safety procedure (Sections 7 and 8). The Water (Prevention and
Control of Pollution) Act, 1974 and the Air (Prevention and Control of
Pollution) Act, 1981 adopt an integrated approach of prevention, con-
trol and abatement of water and air respectively. Proper coordination
between mechanisms under these two Acts and also between central
and state pollution control Boards have been contemplated.
Environment Impact Assessment is an objective method of aug-
menting sustainable development. Leelakrishnan views, “It guides
administrative agencies in balancing conflicting social values, and
environmental quality.”"”” Since prevention avoids discomforts, dan-
gers and wastage, EIA has great potentiality, especially when people
and NGOs effectively participate in the decision making process. The
EIA Notification, 1994 requires environmental clearance in respect of
32 types of industrial activities. The 1997 Amendment has recognised
the role of Pollution Control Boards in the EIA process. The Narmada
ruling on mere prospective effect of EIA and limit of EIA only to the
”° The EP Rules, 1986, the Hazardous Wastes (Management and Handling) Rules,
1989, Noise Pollution Rules, 2000, Biomedical Waste (Management and Handling)
Rules, 1988, Ozone Depleting Substances (Regulation and Control) Rules, 2000,
Coastal
Regulation Zone Notification and Environment Impact Assessment Notification.
"6 EPA, Ss. 2(b) and (0), “environmental pollution” means the presence in the
environment of any environmental pollutant; “environmental pollutant” means any
solid, liquid or gaseous substance present in such concentration as may be, or
tend to
be, injurious to eco-system.
"7 P. Leelakrishnan, op. cit., at p. 277.
Environmental protection versus development 815
SiS Sees, iets atten he panied eaterptn tSie ea anc a atti Geld a
specified activities have the effect of limiting the scrutiny about sus-
tainable development.
In conservation of natural resources like forest, wild life and min-
erals, law’s role has supported the cause of sustainable development.
Depletion and degradation of these resources are dealt under the Indian
Forest Act, 1927, Forest Conservation Act, 1980, Wild Life Protection Act,
1972 and Mines and Minerals (Regulation and Development) Act, 1957.
The policy of commercialising forest has yielded place to the policy of
conservation. Protection of wild life through sanctuaries and national
parks with rigid principles and measures relating to non-interven-
tion in those areas has been attempted. In a landmark judgment, T.N.
Godavarman case, the Supreme Court has extensively given guidelines
for protection of the forest cover. Adverse effect of mining in forests
and hills are seriously considered in other cases for providing reme-
dies. Under Section 18(1) of the Mines and Minerals (Development and
Regulation) Act, 1957, it shall be the duty of the Central Government
to take all such steps as may be necessary for the conservation and
systematic development of minerals in India and for the protection of
environment by preventing or controlling any pollution which may be
caused by prospecting or mining operations. Conservation of natural
resource is logical imperative of inter-generation equity and promi-
nent tool of balancing between environment and development.
17.6.6 Specific principles of balancing

Some of the principles that judiciary developed by gathering support
from international environmental law have tried to resolve the dichot-
omy between environment and development.
The Public Trust doctrine enunciated in the Spawn Motel case'”* as
part of the Indian jurisprudence envisages, “The State is the trustee
of all natural resources which are by nature meant for pubic use and
enjoyment. Public at large is the beneficiary of the seashore, running
water, airs, forests and ecologically fragile lands. The State as a trustee
is under a legal duty to protect the natural resources. These resources
meant for public use can not be converted into private use.” Resources
like air, sea, water and the forests have such a great importance to
the people that converting such gifts of nature into subjects of private
ownership would be wholly unjustified, the Court viewed. The State's
In
affirmative duty keeps the natural resource in its pristine character.
to note
Hinch Lal Tiwari the Supreme Court observed, “It is important
tanks, ponds,
that material resources of the community like forests,
178 MC. Mehta v. Kamal Nath, (1997) 1 SCC 388.

19 Ibid, per Kuldip Singh, J.
816 c DevelopSlab
Economiiti and Social
Law eat
ment, iia Transfo
re SABIE rmation
LEAS SN
a
hillock, mountain, etc. are nature’s bounty. They maintain delicate
ecological balance. They need to be protected for a proper and healthy
environment which enables people to enjoy a quality life which is
essence of the guaranteed right under Article 21 of the Constitution.”
It is this continuity in the midst of ever changing world that balances
environment with development.
The Precautionary principle’s contribution is also substantial in this
regard. In M.V. Naidu case the Supreme Court has observed, “The prin-
ciple of precaution involves the anticipation of environmental harm
and taking measures to avoid it or to choose the least environmentally
harmful activity. It is based on scientific uncertainty. Environmental
protection should not only aim at protecting health, property and
economic interest but also protect the environment for its own sake;
precautionary duties must not only be triggered by the suspicion of
concrete danger but also by (justified) concern or risk potential.”"*" By
insisting that chemical industries and municipalities shall not cause
water pollution in Vellore Citizen Welfare Forum'® and M.C. Mehta cases"®,
the Court has tried to uphold the balance between environment and
development. In Research Foundation case, it is observed by the Court,
“It is a part of principle of sustainable development, it provides for tak-
ing protection against specific environmental hazards by avoiding or
reducing environmental risks before specific harms are experienced.”"*4
Polluter pay principle is logical consequence of precaution principle.
By trying to restore the pristine position and deterring the possible
degradations, it also adds to the balancing approach underlying sus-
tainable development."
A similar effort of balancing was attempted by invoking the prin-
ciple of inter-generation equity in the matter of mining of stones that
threatened survival of archaeological site in Kerala. The High Court
upheld the petition for stoppage of the project and observed, “It is the
duty of every citizen to protect and preserve the ancient and historic
monuments for future generations. It is a basic source of study for the
'*°Hinch Lal Tiwari v. Kamala Devi, (2001) 6 SCC 496: AIR 2001 SC 3215.
" A.P. Pollution Control Board v. M.V. Nayudu, (1999) 2 SCC 718: AIR 1999 SC
812 at
pp. 820-1.
'? Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647:
AIR 1996 SC
27°19:
Bes MC. Mehta v. Union of India, (1987) 4 SCC 463: AIR 1988 SC 1037 at p. 1115 (Ganga
pollution cases); M.C. Mehta v. Union of India, (1998) 2 SCC 435: AIR 1998
SC 617 (Vehicular
pollution case).
"™ Research Foundation for Science, Technology National Resource Policy
v. Union of India,
(2005) 10 SCC 510.
"© For an elaborate discussion see, Indrajit Dubey, Environmental Jurispru
dence:
Polluter’s Liability (Lexis Nexis Butterworths, New Delhi 2007).
Conclusions 817
eee eee Se a es ee i
archaeologists and are of national and state importance which cannot

be permitted in any way to be interfered with or affected."%°
The cverall direction of development in this sphere is towards ena-
bling economic progress without compromising the quality of environ-
ment. This is a distinct application of the balancing between change
and continuity occurring in the context of modernisation.
17.7. Conclusions
From what is discussed above, ample evidences based on empirical
experience could be gathered supporting the notion “Change, yet con-
tinuity” in vital sphere of human activity. Justice as the basis for prop-
erty, economic relations and approach towards nature is embedded
in the mainstream Indian tradition, and has much input to inspire.
Finding solution in similar ideas for modern economy’s problems has
both historic propriety and logical justification. Altering of the unjust
and continuing the just have adequate constitutional support also.
Agrarian reforms and humanisation of the industrialised agriculture
are the efforts that the legal system has put to make the vast country-
side life of India comfortable and fit to be lived. Various stages that
the legal policy and discourse on Free enterprise v. State regulation has
undergone with reference to industries quite importantly support the
balanced approach in which could be found some good strategies to
meet the problems of globalisation. The policy of environmental pro-
tection, by making use of the conceptual tool of sustainable develop-
ment, has again reflected the vitality of the balancing approach. In
view of the fact that in all these spheres , as elsewhere, social trans-
formation is too important a task to be left to the mainstream politi-
cal governance but one in which people’s acceptance and participa-
tion makes its success possible, adequate attention needs to be given to
these dimensions. Since economic lobby is strong and self-sustaining,
law’s role of facilitating reform and regulating the vested interests
requires adequate social support. The frequency of farm suicides and
displacements should stir up the social mind for systematising and
humanising the process and direction of change.
6-11-1995.
166 Niyamavedi v. Government of India Kerala High Court,
“haeapieJisrete# sot befsivtyage oft qu:
SS itok lat Vows x Seeger
ODO AE
SEAM) ov ivr
CHAPTER 18
eee
perererecennnnennnenerrnnnnnn
nner enn ne es renvennecemneventremernnreeere,
REFORMS IN THE JUSTICE DELIVERY

SYSTEM, MODERNISATION AND LAW
18.1 Introduction
A legal system’s efficacy depends much upon functional competence

of its procedural law and the dynamism of its grievance redressing
institutions. Remedial law’s support to substantive rights and reform-
ative principles is so significant that it is the availability of remedy that
makes a right meaningful.’ “Procedural law cannot betray the substan-
tive law by submitting to subordination of complexity”, observed R.C.
Lahoti, J.2 According to V.R. Krishna lyer, J. processual law is not to be
a tyrant but servant, not an obstruction but an aid to justice since the
courts are meant to do justice Even revolutionary legal policies get
sadly defeated because of the blunt legal instrument that lacks proces-
sual activism. As discussed in the earlier chapters, substantial legal
principles have attempted to accommodate multiculturalism, facilitate
empowerment and manage modernisation on socially acceptable poli-
cies with human face. The effort would become successful only if the
remedial institutions, mechanisms and procedures evolved by legal
| Ubi jus ubi remedium (where there is a right, there is a remedy). Its corollary is also
true because of the importance of enforceability of the right in actual practice. Ifaman
he
has a right, he must, “have a means to vindicate and maintain it, and a remedy if
is injured in the exercise and enjoyment of it, and, indeed it is vain thing to imagine a
right without a remedy, for want of right and want of remedy are reciprocal.” Brooms
Legal Maxims (10th Edn.) at pp. 118-19.
at 2579.
2 Dhannalal v. Kalawatibai, (2002) 6 SCC 16 at p. 29: AIR 2002 SC 2572
1177.
3 State of Punjab v. Shamlal Murari, (1976) 1 SCC 719: AIR 1976 SC
820 Delivery System, Modernisation and Law
Reforms in the Justice e
Te ie EN e
system also vigorously support the benevolent aim. Thus, legal proce-
dure can hardly afford to be an empty formality.
From the dawn of civilisation to the present day, legal systems have
been experimenting in refining the justice delivery system to make
it more popularly accessible, prompt and effective. The institutions
of nyaya panchayat, guild courts and people’s courts are some of their
manifestations in the past. In the rule of law system, adjudication of
disputes by courts constitutes the principal method of resolving the
conflicts. Growth of the legal system through judge made law and leg-
islative reforms has witnessed emergence of new principles, mecha-
nisms and rights. That the “top down” model ofjustice administration
through modernised techniques does not yield satisfactory result was
realised in the post-internal emergency period with the experience of
gross human rights violations by the system itself because of delay,
formalism, expenses, and lack of communitarian participation. In reac-
tion to this state of affairs, serious attempts were put to enhance the
quality of procedural framework of the legal system. A breakthrough
development is incorporation of Article 39-A into Part IV of the
Constitution for promoting equal justice for all> Rights of the accused,
of the victims and of the parties to civil suits are getting streamlined
as a feature of justice delivery system. The system of plea-bargaining
is introduced by an amendment to the Criminal Procedure Code.
Prison reform is also attempted. There are proposals for strengthening
the rights of victims. Emergence of Public Interest Litigation as a phe-
nomenon and an effective tool has heralded new era of human rights
activism, constitutionalism and environmentalism. The enactment of
Arbitration and Conciliation Act, 1996, amendment to Civil Procedure
Code (2002) incorporating compulsory resort to Alternative Dispute
Resolution (ADR), and implementation of the Legal Services Authority
Act, 1987 by constituting Lok Adalat have opened up new opportuni-
ties for restoring people’s confidence in the justice delivery system. As
a mechanism of rendering to each person his or her due, the system
had to evolve just and fair procedure to protect life, personal liberty
and other interests. In spite of its best efforts, legal system could not
mould litigation as a satisfactory method of resolving the disputes nor
has its search for appropriate model reached final destination.
* Justice S.B. Sinha, “Access to Justice and Judicial Reforms” (2006) 1 Journal of Law
and Social Policy 1 at p. 8.
> Art. 39-A, “The State shall secure that the operation of legal system promotes
justice, on a basis of equal opportunity, and shall, in particular provide free legal aid
by suitable legislation or schemes or in any other way, to ensure that opportunities
for securing justice are not denied to any citizen by reason of economic or other
disabilities.”
Expanding the rights of the accused persons
821
. The present chapter examines the prominent aspects of reforms in
justice delivery system. It intends to make a brief survey of trends of
development in this sphere and inquires whether the Indian legal sys-
tem’s basic orientation and mission towards social justice could be sat-
isfactorily assisted by the dispute settlement practice; whether the legal
disputes could be treated with adequate human sensitivity in view of
the fact that disputes have immense human element; and whether the
imperatives of human rights and challenges of globalisation, modern
trade and economic development could be appropriately responded by
the justice delivery system. In the light of legislative and judicial con-
tributions in this sphere and also the reports of Law Commission and
Criminal Law Reforms Committee (Justice V.S. Malimath Committee)
the relevant legal development will be considered from the social
transformation perspective.
18.2 Expanding the rights of the accused persons

For persons challenged by the prosecution about their conduct, pro-
cedural due process rights are the means through which they can try
to defend themselves. Social transformation for them means change
from highly constricted and crude type of legal environment to an
expanded system of procedural rights. It is through refining the proce-
dural due process that civil liberties grew to the present shape. Today,
international and domestic human rights developments vibrate with a
sense of humanism toward the accused persons because of meticulous
attention given towards enhancing the legal position of the accused
persons. The contribution of human rights approach in the criminal
justice system towards bringing social transformation is quite signifi-
cant.
From the moment of arrest to the final stage of acquittal or release
after punishment, accused persons are entitled to various rights that
broadly come within the parameter of just, fair and reasonable legal
procedure emphasised in Maneka Gandhi case’. The Supreme Court's
approach to Article 21” in this sphere reflected change in the social
thinking after the internal emergency that witnessed gross human
right violations.¢The Maneka approach is a source of several rights such
as right to information and safety at the time of arrest, right to bail,
right to speedy disposal of cases, right to legal aid, right against unjus-
tified detention, right against handcuffing, right to fair conditions in
6 Maneka Gandhi v. Union ofIndia, (1978) 1 SCC 248: AIR 1978 SC 597.
except
? No person shall be deprived of his right to life and personal liberty
according to the procedure established by law (Art. 21 of the Constitution).
of procedural
* The finding in Shah Commission Report 1978 reveal the lack
safeguards and high handed exercise of power by the police.
822 Reforms in the Justice Delivery System, Modernisation and Law
itch tem OAS ME eA MESES AIEEE RENEE
custodial detention and right to free transcription of judgment for
appeal.’ All these rights have social dimensions of empowering the
accused persons who are circumstantially vulnerable and kept away
from social resources. On the other hand, the larger purpose of Article
21 to protect (see marginal note) life and personal liberty of all can be
better served by crime control function of the state.
That application of procedural safeguards at the time of detention
avoids abuses has been emphasised in D.K. Basu case’’. Responding
to the need to sternly deal with terrorists and anti-social elements in
the investigation process the Supreme Court observed, “Challenge of
terrorism must be met with innovative ideas and approach. State ter-
rorism is no answer to combat terrorism. State terrorism would only
provide legitimacy to “terrorism”. That would be bad for the State, the
community and above all for the rule of law. The State must, therefore,
ensure that various agencies deployed by it for combating terrorism act
within the bounds of law and not become law unto themselves. That
the terrorist has violated human rights of innocent citizens may render
him liable for punishment but it cannot justify the violation of his
human rights except in the manner permitted by law.” Application of
international human rights instruments has also supported the effort
to exclude cruel or third degree methods of police investigation; to
avoid lock-up deaths; and to award compensation in case of lock-up
deaths due to police atrocities.
* M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544: AIR 1978 SC 1548.
" D.K. Basu v. State of W.B., (1997) 1 SCC 416: 1997 SCC (Cri) 92: AIR 1997 SC 610.
The Apex Court laid down 11, guidelines to be followed by police: (i) The arresting or
interrogating official to bear identification badge; (ii) Preparation of memo of arrest
with the witness of a family member or local person; (ii/) Right of the arrestee to have
his relative or friend informed of arrest as soon as practicable; (iv) The details of arrest
to be informed within 8 to 12 hours if the relative or friend of the arrestee lives outside
the district or town of arrest; (v) The arrestee must be made aware of this right to have
someone informed soon after arrest; (vi) Entry in the police diary about arrest and
transmission of information to next friend or relative; (vii) In case arrestee requests
for examination of his bodily injuries at the time of arrest, the request to be complied
with; (viii) Subjection of the arrestee to medical examination by a trained doctor every
48 hours during custodial detention; (ix) Copies of documents to be submitted to
magistrate; (x) The arrestee may be permitted to meet his lawyer during interrogation,
though not throughout the interrogation; (xi) Police control room in District or State
headquarter to notify in the notice board about the fact of arrest within 12 hours from
the moment of arrest.
'' bid, at p. 623 para 34.
'? Nilabati Behera v. State of Orissa, (1993) 2 SCC 746: AIR 1993 SC 1960 at
para 20
where reference was made to Art. 9(5) of the international Covenant
for Civil and
Political Rights, 1966.
Expanding the rights of the accused persons
SiS
S RSaslsocean e 823
In Moti Ram v. State of M.P*3 the Supreme Court conceded that the
bail system discriminated against the poor, and accordingly gave rem-
edy against unreasonable surety. The Court viewed that poor men,
young persons, infirm individuals and women were weak categories
and courts should be liberal in releasing them on their own recogni-
sance subject to reasonable conditions. When poverty of the undertrial
and his or her family was the reason for languishing in jail sometimes
even beyond the maximum period of punishment for the alleged
offence, in Hussainara Khatoon while ordering release of such persons
the court observed, “Undeniably, the thousands of undertrial prison-
ers lodged in Indian prisons today include many who are unable to
secure their release before trial because of their inability to produce
sufficient financial guarantee for their appearance... The deprivation
of liberty for the reason of financial poverty only is an incongruous
element in a society aspiring to the achievement of these constitutional
objectives."* The social interest in right to speedy trial was considered
in A.R. Antulay case, “The fact that a speedy trial is also in public inter-
est or that it serves the societal interest also, does not make it any—
the—less the right of the accused. It is in the interest of all concerned
that the guilt or innocence of the accused is determined as quickly as
possible in the circumstances.”
Judicial recognition and implementation of right to legal aid at vari-
ous stages of criminal case has shown difficulties involved in reform-
ing the system through judicial commands alone. Deploring the neg-
ligent attitude of states in providing legal aid, the Supreme Court in
Khatri (II) v. State of Bihar'® observed, “We would also direct the State
of Bihar and, require every other State in the country to make provi-
sion for grant of free legal services to an accused who is unable to
engage a lawyer on account of reasons such as poverty, indigence or
incommunicado situation. The only qualification would be that the
offence charged against the accused is such that, on conviction, it
would result in a sentence of imprisonment and is of such a nature that
the circumstances of the case and the needs of social justice require
that he should be given free legal representation. There may be cases
involving offences such as economic offences or offences against law
prohibiting prostitution or child abuse and the like, where social jus-
tice may require that free legal services need not be provided by the
13 (1978) 4 SCC 47: 1978 SCC (Cri) 485: AIR 1978 SC 1594.
(Cri) 35: AIR
144 Hussainara Khatoon (III) v. State of Bihar, (1980) 1 SCC 93: 1980 SCC
1979 SC 1360 at para. 11 per R.S. Pathak, J.
1701; see also,
15. Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225; AIR 1992 SC
4 SCC 578: AIR 2002 SC 1856.
P. Ramachandra Rao v. State of Karnataka, (2002)
components of fair
16 (1981) 1 SCC 627: AIR 1981 SC 928; reading of Art. 39-A into
procedure under Art. 21 had this result.
Law
ation andee
824 Reforms in the Justice Delivery System, Modernis
Te
in holding that trial
State.” In Suk Das the Court went a step ahead
bringing aware-
without providing legal aid was vitiated. Need for
ignorance
ness about right to legal aid in the context of illiteracy and
t of Legal
about legal aid was emphasised by the Court.7 The enactmen
re for
Services Authority Act has streamlined the development. In Cent
social
Legal Research v. State of Kerala's, emphasising the importance of
,
participation in legal aid movement, the Supreme Court observed “It
is absolutely essential that people should be involved in the legal aid
programme because the legal aid programme is not charity or bounty
but it is a special entitlement of the people and those in need of legal
assistance cannot be looked upon as mere beneficiaries of the legal aid
programme but they should be regarded as participants in it.”
Protection against custodial violence and unreasonable handcuff-
ing is a theme consistently carried out in a number of cases starting
from Sunil Batra. Again, the difficulty in humanising the whole system
by minimising the use of handcuffs was experienced because of the
administration’s apathy. The Court in Citizens for Democracy observed,
“We are constrained to say that the guidelines laid down by this Court
and the directions issued repeatedly regarding handcuffing of under-
trials and convicts are not being followed by the police jail authorities
and even by the subordinate judiciary. We make it clear that the law
laid down by this Court in the abovesaid two judgments and the direc-
tions issued by us are binding on all concerned and any violation or
circumvention shall attract the provisions of the Contempt of Courts
Act apart from other penal consequences under law.’"9
Special provisions for protection of women and children in custody
have been insisted in Sheela Barse and other cases.*? Award of compen-
sation to the accused and imposition of personal liability upon police
officers in case of custodial death or physical injury of the detenu
has been the general rule in the approach of judiciary.” The National
Sik Das v. UT of Arunachal Pradesh, (1986) 2 SCC 401: 1986 SCC (Cri) 166.
* (1986) 2 SCC 706: AIR 1986 SC 2195.
CitizensforDemocracy v. State of Assam, (1995) 3 SCC 743: AIR 1996 SC 2193.
20
Sheela Barse v. Secy., Children’s Aid Society, (1987) 3 SCC 50: 1987 SCC (Cri) 458;
Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96: 1983 SCC (Cri) 353; Upendra Baxi (II)
v. State of U.P., (1986) 4 SCC 106: 1986 SCC (Cri) 381: AIR 1987 SC 191.
2! Rudul Sah v. State of Bihar, (1983) 4 SCC 141: 1983 SCC (Cri) 798; Sebastian M. Hongray
v. Union of India, (1984) 1 SCC 339: 1984 SCC (Cri) 87; Sebastian M.
Hongray v. Union of
India, (1984) 3 SCC 82: 1984 SCC (Cri) 407, in such a writ petition, exemplary
costs were
awarded on failure of the detaining authority to produce the missing persons on the
conclusion that they were not alive and had met an unnatural death... In Bhim Singh
v. State of J&K, (1985) 4 SCC 677: AIR 1986 SC 494, illegal detention in police custody
of the petitioner Bhim Singh was held to constitute violation of his rights under Arts.
21 and 22(2) and this Court exercising its power to award compensation under Art.
32 directed the State to pay monetary compensation to the petitioner for violation
of
Plea-bargaining
e 825
eoe
e Sent || (Be
Human Rights Commission has also adopted similar policies in mak-
ing recommendations for compensation. The immunity against self-
incrimination (No person accused of an offence shall be compelled to
be a witness against himself), protection against double jeopardy (No
person shall be prosecuted and punished for the same offence more
than once) and the safeguard against ex post facto laws (retro active
criminal laws) are important protections against arbitrary and vindic-
tive state actions (Article 20). Right to be informed of grounds of arrest,
right to be produced before the nearest Magistrate, right to consult
a legal practitioner of one’s choice and right to make representation
against allegation are the important due process rights coming to the
rescue of the accused.” These basic principles are supported by elabo-
rate provisions in the Criminal Procedure Code, Indian Evidence Act
subject to exceptions in cases of POTA and preventive detention laws.
18.3 Plea-bargaining
Reform in procedural law for bringing concurrence between truth
and justice in individual cases in an objective and participative spirit
without delay, inconvenience and compulsion is an important devel-
opment that has witnessed balancing of several competing interests.
Introduction of plea-bargaining is one such phenomenon that has
demanded not only proper balancing of them, but also bestowing of
meticulous care in grafting basically a western system into the Indian
socio-legal conditions which pose challenging features of illiteracy,
absence of attitude for legalism and prevalence of police high handed-
ness.
18.3.1 The concept

Delay resulting in denial of justice is a serious infirmity of the judi-
cial system.” One of the methods employed in criminal justice system
his constitutional right by way of exemplary costs; In Saheli v. Commr. of Police, (1990)
1 SCC 422: AIR 1990 SC 513, the State was held liable to pay compensation payable to
the mother of the deceased who died as a result of beating and assault by the police. In
State of Maharashtra v. Ravikant S. Patil, (1991) 2 SCC 373: 1991 AIR SCW 871, the award
of compensation by the High Court for violation of the Fundamental Right under Art.
21 of an undertrial prisoner, who was handcuffed and taken through the streets in a
procession by the police during investigation, was upheld.
2 For discussion see, P. Ishwara Bhat, Fundamental Rights (2004) at pp. 146-53.
SCC (Cri) 35: AIR
23 In Hussainara Khatoon (III) v. State of Bihar, (1980) 1 SCC 93: 1980
and judicial system
1979 SC 1360 it was observed, “It is a sad reflection on the legal
commen ce for a long number of years.
that the trial of an accused should not even
bad enough: how much
Even a delay of one year on the commencement of the trial is
or 7 or even 10 years. Speedy trial
worse could it be when the delay is as long as 3 or 5
be no doubt that delay in trial by
is of the essence of criminal justice and there can
Reforms in the Justic e Delivery System, arr Law
Modernisation and Tet
826 eee A a ma SS ears pS Lo
er a ic
for avoiding delay and enabling speedy settlement is panini

ing. According to Black’s Law Dictionary plea-bargaining is a “proc-
ess whereby the accused and the prosecutor in a criminal case work
out a mutually satisfactory disposition of the case subject to court’s
approval. It usually involves the defendant's pleading guilty toa lesser
offense or to only one or some of the counts of a multi-count indict-
ment in return for a lighter sentence than that possible for the graver
charge.” It is an agreement in a criminal case in which a prosecutor
and an accused arrange to settle the case against the accused on the
basis of confession by the latter in exchange for lighter punishment for
the offence.’ It is a deal offered by a prosecutor as an incentive for the
accused to plead guilty in exchange for long, expensive and tortuous
process of undergoing ‘trial where he may be convicted.” The defend-
ant agrees to plead guilty or opts not to contest in exchange for such
incentive. This concession can include reducing the original charge or
charges, dismissing some of the charges against the defendant or lim-
iting the punishment a court can impose on the defendant.
Justice A.K. Sikri in an article emphasises the importance of negoti-
ating process that would bring all the competing factors for considera-
tion including the knowledge about lesser included offences and rea-
sonable understanding of sentencing guidelines so that the outcome
would be roughly as fair as the trial outcomes.”” The three types of
Plea-bargaining practiced in the West are: charge bargaining; sentence
bargaining; and fact barJaining. In the first, the accused pleads guilty
to reduced charges; in the second, reduced punishment is offered by
the prosecution to the accused in case the latter pleads guilty; and in
the third, the accused accepts certain facts which eliminates the need
for its proof by the prosecution.
Generally, a plea bargain allows the parties to agree on the out-
come and settle the pending charge. In the United States of America
it constitutes significant part of criminal justice system, and is widely
itself constitutes denial of justice.”

* Bryan A. Garner and Henry Campbell, Black’s Law Dictionary (6th Edn., West
Publishing Co., New York 1990) at p. 1173.
* From Wikipedia, the free encyclopedia; Pinali Ranjan Rakshit, “Concept of
Plea-bargaining in American Jurisprudence vis-a-vis its applicability under Indian
Criminal Law” (2005) 1 Unreported Judgment Journal 40 (SC); see also, Justice A.K.
Sikri, “Reforming Criminal Justice System: Can Plea-bargaining be the Answer?”
(2007) 8 (1) Nyaya Deep 39.
*° Atreyee Majumdar, “Plea-Bargaining-Guilty, But of a Lesser Offence?” (2006)
British Council e-Newsletter cited by Justice A.K. Sikri op. cit., at p. 45.
” Justice A.K. Sikri, “Reforming Criminal Justice System: Can Plea-Bargaining Be
The Answer?” (2007) 8 (1) Nyaya Deep 39; see also, Justice A.K. Sikri, “Plea-Bargaining”
(July 2006) 7 Nyaya Deep at p. 77.
Plea-bargaining
e eeIO 827
ee
practised. Started as a prosecutorial tool?8, it gained currency becau
se
of popular acceptance to such an extent that go per cent of the punis-
ments are based on pleading of guilt. As practised in England and
Australia, there is only bargaining on charges but not on penalties. In
civil law systems like France, confession of guilt may not be accepted
by the court if on the basis of other evidences the court arrives at a dif-
ferent conclusion. Hence, plea-bargaining system could not be intro-
duced except in case of minor offences attracting punishment for less
than one year. In India, it was introduced in 2006 by an amendment to
Criminal Procedure Code.
18.3.2 The pros and cons

The advantages of plea-bargaining are several: First, it avoids the uncer-
tainty of criminal trial, and minimises the risk of undesirable results
for either side.” While prosecutors have wide discretion regarding the
charges they frame, they may be finding evidences not enough in a
particular case to establish guilt, and hence, opt for lesser charge in
case the accused accepts the guilt. The defendant is also left to choose
between the certainty of accepting sentencing for a much less serious
charge, or the uncertainty of criminal trial in which he might be found
not guilty, but which also carries the risk of being found guilty of the
original, more serious charges2° Secondly, it enables speedy disposal
of cases and reduces the case load. In view of the fact that right to
speedy trial is recognised as a Fundamental Right, the plea-bargain-
ing system makes meaningful contribution to human rights. It is said
that the American criminal justice system would simply cease to func-
tion without plea-bargaining. Thirdly, it avoids the hassles of engag-
ing a lawyer, spending money, planning defence, and repeated attend-
ance to, and waiting in courts. All these save social and monetary cost.
Fourthly, it protects reputation against unnecessary publicity." Fifthly,
it takes care of the interests of the victims by compensating them and
sparing them from the requirement of deposing evidence before the
Court2 Finally, the rehabilitation and reformation will commence ear-
lier
But there are criticisms on the system: (i) that the plea bargain sys-
tem puts strong pressure on defendants to plead guilty to crimes which
% Dirk Olin, “Plea-Bargaining” http://www.truthinjustice.org/bargaining.htm
2008.
29 142nd Law Commission Report, 1991.
2 http://www.abanet.org/publiced/courts/pleabargaining.html.
a http://legalpundits.indiatimes.com/_nl_january_2006.html.
2 Justice A.K. Sikri, op. cit., at p. 48.
3 142nd Law Commission Report, 1991.
See oe
ple dp ence A
they know that they did not commit; (ii) that the outcome of a plea
bargain may depend strongly on the negotiating skills and personal
demeanor of the defense lawyer, which puts persons who can afford
good lawyers at an advantage; (iii) that the system encourages pros-
ecutors to overcharge at the start of a case which leads to caseload
pressures or unusually severe penalties; (iv) that the notion of plea-bar-
gaining is contrary to the purpose of the law in which a specific action
should be associated with a specific penalty; (v) that the constitution-
ally conferred right against self-incrimination, right to know the evi-
dences, right to cross-examine the witnesses on the part of the accused
and the duty of the state to investigate, get its evidences and prosecute
would be disturbed by the plea-bargaining; and (vi) that there is a ten-
dency on the part of government to retaliate against those who opt
not to plead guilty25 The Law Commission has listed the objections
as follows: country’s social conditions like illiteracy do not justify the
introduction of the system; pressures may result in conviction of the
innocents; the poor may be the ultimate victims; crime rate may go up;
and real criminals may slip through the net with impunity2°
Timothy Sandefur argues that plea-bargaining is a contract, and like
all contract making process requires disclosure of all facts and trans-
parency-” Referring to the criticism that plea-bargaining gives incen-
tive to discourage exercise of constitutionally guaranteed due process
right and that because of disparate punishment for the same offence
violates the principle of quality, Sandefur argues that plea system is
_ anecessary consequence of waiver of Fundamental Right and that the
system might be deficient but not unconstitutional. To exclude defi-
ciency, the measure required is avoiding the chilling effect of bargain-
ing tool through transparency, proper counselling and guidance of the
accused by the prosecuting agency. Timothy Lynch does not agree with
Sandefur about existence of freedom of contract or voluntary waiver
involved in plea-bargaining2* According to Lynch, the accused does
not remain in free trade situation because of the burden of charge and
restraint on mobility, and the bargain is between unequal entities. The
* Peter Charleton S.C. and Paul Anthony, “Constitutional Implications of Plea-

bargaining” Bar Review (2000) 476. Since belief in the ideology behind law is an
expression of society’s desire to seek justice, punishing the deviance from law should
not generally be a matter of bargain.
* Some of the points were made out by the Canadian law Commission’s Working
Paper, 1989.
%¢ 142nd Law Commission Report, Ch. VII (1991).
” Timothy Sandefur, In Defense of Plea-bargaining, Regulations (2003) Regulation Fall
at p. 28.
* Timothy Lynch, The Case Against Plea-bargaining, Regulations (2003) Regulation
Fall at p. 24.
Plea-bargaining
A NNA 829
basic concept of parity of parties to litigation is likely to be distu
rbed
and the choice ceases to be real choice.
The American Supreme Court's approach regarding constitutional-
ity of plea-bargaining has been positive and consistent. Upholding it
as conforming to the due process requirement, the Court has insisted
that the accused pleading guilty must be counseled about his consti-
tutional and legal right; that the plea must be voluntary and with full
knowledge; it should be generally free from inducement; and in case
it is based on inducement, it shall be so recorded in the negotiation
document? Justice Berger in Santobello viewed that the disposition
after plea discussion shall record the discussion as it avoids corrosive
impact of enforced idleness; protects the public from criminal acts; and
enhances the rehabilitation prospects of the guilty.4° The judgment in
Bordenkircher v. Hayes* (1978) throws some light on functioning of the
plea-bargaining system. Hayes was charged with the offence of for-
gery of cheque, an offence punishable with imprisonment for a period
ranging from two to 10 years’. The prosecution offered him to settle the
case with five years’ imprisonment and stated that in case he opted for
trial, it might invoke the Habitual Criminals Act under which the pun-
ishment could be life imprisonment. Hayes opted trial by jury rather
than pleading guilty. He was convicted and sentence of life imprison-
ment was imposed on account of his habitual criminal conduct. Hayes’
argument in appeal that the prosecution threatened him at the stage of
plea-bargaining with possibility of imposing higher punishment was
rejected by the Supreme Court (5-4) on the ground that the conviction
was based on admitted evidences and that he could have completely
avoided the risk of life imprisonment by pleading guilt and accepting
prison term for five years’. The judgment is criticised on account of
lack of real choice on the part of the accused person.* It is submitted,
while technically the judgment is not objectionable, the prosecution’s
tendency to retaliate in case of option for trial is deplorable, and hence,
leniency could have been shown in quantification of penalty.
The academic opinion about plea-bargaining in US is critical about
lack of satisfactory conditions for bargaining because of harsh post trial
sentences, lack of adequate information about the defendants, wide
39 Moore v. Michigan, (1957) 355 US 155; Lynch v. Overholser, 369 US 705 (1962) at
p. 719; Brady v. United States, 25 L Ed 2d 747.
40 Santobello v. New York, (1971) 404 US 257.
41 434 US 357 (1978). .
on
2 Timothy Lynch, The Case Against Plea-bargaining, Regulations (2003) Regulati
Fall at p. 24.
830 Reforms in the Justi ce Delivery System, Modernisation and Law
i ie a
in offences against
prosecutorial choices, and scope for bargaining
women and drug offences.”
18.3.3 The Indian development

the influ-
In India, where accusatorial system of trial is followed under
prac-
ence of English common law, until recently, there has not been the
tice of plea-bargaining in a formal manner. In petty cases where the
offence is punishable with fine not exceeding Rs 1000, under Section
506 of the Criminal Procedure Code, the Magistrate may specify in
summons the fine which the accused should pay if he pleads guilty
and send the fine amount along with his reply to the Court. The pro-
cedure is simple and convenient to the accused as he need not engage a
lawyer or appear before the court. Regarding other offences, pleading
guilty with an expectation of lenient punishment remained risky but
was practised with hesitations and disadvantages.
The judicial delay in disposal of criminal cases resulting in indefi-
nite confinement of accused persons in the judicial custody has been
adversely commented upon in a number of cases ever since Hussainara
Khatoon*. As early as in 1968 the Supreme Court had held that the court
should never be a party to a bargain by which money is recovered
for the complainant through their agency.** Regarding plea-bargain-
ing without the formal base and authorisation under law, the Court
in Muralidhar Meghraj hac. cast aspersions, and suspected about col-
lusion between the prosecuting agency and the accused.4° The Court
#® Stephanos Bibas, “Plea-bargaining Outside the Shadow of Trial” (2004) 117 Harv
L Rev 2463; William Stunntz, “Plea-bargaining and Criminal Law’s Disappearing
Shadow” (2004) 117 Harv. L Rev. 2548.
44 Hussainara Khatoon (III) v. State of Bihar, (1980) 1 SCC 93: 1980 SCC (Cri) 35: AIR
1979 SC 1360 per P.N. Bhagwati, J.: “An alarmingly large number of men and women,
children including, are behind prison bars for years awaiting trial in courts of law.
The offences with which some of them are charged are trivial, which, even if proved,
would not warrant punishment for more than a few months, perhaps for a year or
two, and yet these unfortunate forgotten specimens of humanity are in jail, deprived
of their freedom, for periods ranging from three to 10 years’ without even as much as
their trial having commenced. Itis a crying shame on the judicial system which permits
incarceration of men and women for such long periods of time without trial. We are
shouting from house tops about the protection and enforcement of human rights. We
are talking passionately and eloquently about the maintenance and preservation of
basic freedoms. But, are we not denying human rights to these nameless persons who
are languishing in jails for years for offences which perhaps they might ultimately be
found not to have committed?”
48 Madanlal Ramchandra Daga v. State ofMaharashtra, AIR 1968 SC 1267.
“6 Murlidhar Meghraj Loya v. State of Maharashtra, (1976) 3 SCC 684: 1976 SCC
(Cri) 493 per V.R. Krishna lyer, J. “The businessman culprit, confronted by a sure
prospect of the agony and ignominy of tenancy of a prison cell, “trades out” of the
situation, the bargain being a plea of guilt, coupled with a promise of “no jail.” These
Plea-
ae barga
ae
ining
NSN ais 831
OR
considered the conduct of magistrate in giving lesser punishme
nt on
account of plea-baragaining as highly objectionable especially
in the
context of socio-economic offence like food adulteration invol
ving
health of the community. V.R. Krishna lyer, J. observed for the Court
:
“It is idle to speculate on the virtue of negotiated settlements of crimi-
nal cases, as obtains in the United States but in our jurisdiction,
espe-
cially in the area of dangerous economic crimes and food offences, this
practice intrudes on society’s interests by Opposing society’s decision
expressed through pre-determined legislative fixation of minimum
sentences and by subtly subverting the mandate of the law. The jurists
across the Atlantic partly condemn the bad odour of purchased pleas
of guilt and partly justify it philosophically as a sentence concession
to a defendant who has, by his plea “aided in ensuring the prompt and
certain application of correctional measures to him”... We have no sanc-
tion, except surreptitious practice in some courts, for ‘trading out’ of
punitive severity.”
In Kasambhai also similar approach was adopted, and in the absence of
a streamlined legal procedure for plea-bargaining the Court was not
agreeable to recognise the concept. The Court observed:
“Tt is to our mind contrary to public policy to allow a conviction to
be recorded against an accused by inducing him to confess to a plea
of guilty on an allurement being held out to him that if enters a plea of
guilty, he will be let off very lightly. Such a procedure would be clearly
unreasonable, unfair and unjust and would be violative of the new
activist dimension of Article 21 of the Constitution unfolded in Maneka
Gandhi case. It would have the effect of polluting the pure fount of jus-
tice, because it might induce an innocent accused to plead guilty to suf-
fer a light and inconsequential punishment rather than go through a
long and arduous criminal trial which, having regard to our cumbrous
and unsatisfactory system of administration of justice, is not only long
drawn out and ruinous in terms of time and money, but also uncertain
and unpredictable in its result and the Judge also might be likely to
be deflected from the path of duty to do justice and he might either
convict an innocent accused by accepting the plea of guilty or let offa
guilty accused with a light sentence, thus, subverting the process of law
and frustrating the social objective and purpose of the anti-adulteration
statute. This practice would also tend to encourage corruption and col-
advance arrangements please everyone except the distant victim, the silent society.
The prosecutor is relieved of the long process of proof, legal technicalities and long
arguments, punctuated by revisionsal excursions to higher courts, the court sighs
relief that its ordeal, surrounded by a crowd of papers and persons, is avoided by one
held out
case less and the accused is happy that even if legalistic battles might have
in the expensive hierarchy of the justice-
some astrological hope of abstract acquittal
system he is free early in the day to pursue his old profession.
832 Delivery System, Modern
Reforms in the JusticeNN Law
isation and rr
Fee eR a are Ae
lusion and as a direct consequence, contribute to the lowering of the
standard of justice.”””
Further, in the Indian social circumstance where illiteracy and lack of
awareness of rights was prevalent, the waiver of right to regular trial
was not generally meeting the legal standards of fairness and reasona-
bleness. In State of U.P. v. Chandrika** the Court continued the policy of
not allowing plea-bargaining in the matter of serious offences under
igOs
The Law Commission in its 142nd Report (1991) discussed the desir-
ability of plea-bargaining in the light of Indian social conditions and
also the need to promote speedy disposal of cases with the voluntary
plea of guilt by the accused. Through survey of public opinion and
discussions in seminars and working papers, the Law Commission
found the need to introduce the system with adequate safeguards
and in a limited sphere without affecting the crime control function of
the state. It recommended for its incorporation in offences other than
offence punishable with imprisonment for more than seven years’ or
with death penalty. Further, the request for reduced penalty on the
basis of voluntary confesion of guilt was to be treated by responsi-
ble officer like judge rather than police or the prosecution. By this it
has tried to avoid bargaining, pressure, inducement, and possibility
of too lenient punishment and punishment of the innocent persons.
The Commission elaboratelv discussed about the practice of plea-bar-
gaining in America and Canada and considered the need to confine
its scope to limited circumstances in India and the need to have pro-
tection against abuses. Malimath Committee report recommended for
implementation of the Commission Report.
18.3.4 The statutory scheme

Based on Law Commision’s Report, but with adequate modification
to bring simple procedure, the Parliament enacted the scheme of Plea-
bargaining and incorporated the same as Chapter XXI-A Sections
265-A to 265-L. The amendment is brought into effect on 5th July 2006.
Its broad features can be examined as follows:
Firstly, applicability of the plea-bargaining scheme has strong limits.
It is not applicable to offence for which the punishment of death or of
imprisonment for life or of imprisonment for a term exceeding seven
years has been provided under the law for the time being in force. It
” Kasambhai v. State of Gujarat, (1980) 3 SCC 120: AIR 1980 SC 854 at p. 856; similar
approach was adopted in Ganeshmal Jashraj v. Govt. of Gujarat, (1980) 1 SCC 363: AIR
1980 SC 264: 1980 Cri LJ 208 and Thippaswamy v. State of Karnataka, (1983) 1 SCC 194:
1983 SCC (Cri) 160.
*® (1999) 8 SCC 638: AIR 2000 SC 164.
is also not applicable to cases where such offence affects the socio-
economic condition of the country or has been committed against a
woman, or a child below the age of 14 years’. The Central Government
1s empowered to notify the socio-economic offences not coming under
the purview of plea-bargaining. By a notification dated 11th July 2006
the Government has listed 19 statutes, the offences committed under
which do not fall within the scope of plea-bargaining. The offences
relating to dowry, indecent representation of women, sati, domestic
violence, ITPA, food product, SC/ST Protection against atrocities, mili-
tary law, cinematography are listed.
Secondly, the procedure for plea-bargaining starts with filing of
application before the Magistrate. It shall contain a brief description of
the case relating to which the application is filed including the offence
to which the case relates and shall be accompanied by an affidavit
sworn by the accused stating therein that he has voluntarily preferred,
after understanding the nature and extent of punishment provided
under the law for the offence, the plea-bargaining in his case and that
he has not previously been convicted by a Court in a case in which
he had been charged with the same offence. The Court shall hear
both the Public Prosecutor and the accused. The Court shall examine
the accused in camera, where the other party in the case shall not be
present, to satisfy itself that the accused has filed the application vol-
untarily and where the Court is satisfied that the application has been
filed by the accused voluntarily, it shall provide time to the Public
Prosecutor or the complainant of the case, as the case may be, and the
accused to work out a mutually satisfactory disposition of the case
which may include giving to the victim by the accused the compensa-
tion and other expenses during the case and thereafter fix the date for
further hearing of the case. If not so satisfied, the Court may continue
the trial.
Thirdly, it shall be the duty of the Court to ensure that the entire
process is completed voluntarily by the parties participating in the
meeting. In a case instituted otherwise than on police report, the
Court shall issue notice to the accused and the victim of the case to
participate in a meeting to work out a satisfactory disposition of the
case. It shall be the duty of the Court to ensure voluntary participation
by the parties. liapaes
Fourthly , the Court shall award compens ation to the victim in
accordance with the disposition under Section 265-D and hear the par-
ties on the quantum of the punishment, releasing of the accused on
probation of good conduct or after admonition under Section 360 or
on of
for dealing with the accused under the provisions of the Probati
Offenders Act, 1958 or any other law for the time being in force and
a,
follow the procedure specified in the succeeding clauses for imposing

the punishment on the accused. .
Fifthly, the judgment rendered under this chapter is final and no
appeal lies. Period of detention undergone by the accused is to be set
off against the sentence of imprisonment. Statements of the accused
are not to be used in other cases.
18.3.5 Comments
Since the present law provides for effective protection of the interests
of the accused, victim and the society by operationalising the scheme
under the supervision of the judiciary without any influence of the
police or prosecution, the procedure has element of fairness. In the
Indian context, where illiteracy and lack of awareness of human rights
pose great difficulty, the practice shall be made with great caution. The
growth of law has come to the rescue of persons genuinely intending
to plea bargain. By excluding the application of plea-bargaining in the
matter of charges on offences, punishable with imprisonment beyond
seven years’ or on socio-economic offences the societal interest is not
jeopardised. Since the ideas of victim compensation and mutually
satisfactory disposition are accommodated, it gives justice to victims
and security against abuse. The overall development is not against the
judicial dicta in earlier cases as the reform has responded to the objec-
tions raised by the courts by; providing adequate safeguards.
18.4 Prison reforms
Imprisonment is a situation of serious incarceration of human rights

undertaken for protection of larger social interests and human rights of
others, and to be made tolerable with access to minimum human rights
enjoyable within the prison.? Prison’s position as a formal agency of
control in a democracy” has called for sensitising the working of the
institution through human rights principles, sympathy (karuna jus-
tice) and spirit of social reform.
18.4.1 Historical and statutory development

Reform of prisons to meet the requirements of changed social per-
ceptions about human rights and modernisation is another point that
establishes potentiality of human rights jurisprudence in framing and
* Rr. 57 and 58 of the Standard Minimum Rules for the Treatment of Prisoners and
Related Recommendation, 1955.
tr See, B.B. Pandey, “Human Rights of Prisoners” in K.I. Vibhute (Ed.), Criminal
Justice (Eastern Book Company, Lucknow 2004) at p. 327.
Prison reforms
Sane acaens ao a 835
implementing the social transformation agenda. It is with refinement
of civilisation that finer ideas about prison reforms emerge. Some of
the noble principles about humane treatment of prisoners, as reflected
in the ancient Indian jurisprudence, can be looked into to know the
indigenous values on the subject. Kautilya prescribed that a band-
hanagara (jail) shall be constructed in the capital providing separate
accommodation for men and women, and it should be well-guarded5"
Prisoners were to be employed in useful works like weaving and cul-
tivation; and remission of sentences of imprisonment in special occa-
sions or on considerations of good work, conduct and payment of fine
was to be practiced5?
Continued according to the convenience of medieval rulers, the
prison conditions became miserable during the company rule. The
Prison Reform Committee, 1836 reported about the unsanitary con-
ditions of jail, lack of medical care and absence of separate compart-
ment for women prisoners. The Prison Inquiry Committee, 1864 reit-
erated these points and suggested for appointment of civil surgeon
in each prison. The Prisons Act, 1870 prescribed the composition of
jail staff; provided for separate accommodations for juvenile delin-
quents, women prisoners and male prisoners; and treated criminals
and habitual criminals separately. The offences within the prison were
defined and made punishable. In 1892 an All-India Committee on
Prison Reforms was constituted. Its report was the basis for the present
Prisons Act, 1894. Maintenance of discipline and security within the
prison, better arrangement for women prisoners and improving the
sanitary conditions were the objects of this law. The report of the
Indian Jails Committee, 1919-20 suggested for classification of prison
officials, reform of prisoners through education, socialisation and
humane treatment, and imparting of vocational skills»? For establish-
ing borstal schools, probation of offenders and parole administration,
this report was source of inspiration. In various states jail manuals and
prison rules were brought although a full-fledged enactment was not
the outcome. The Jail Committee was against imposing fetters contin-
uously or without safeguards, and sending prisoners for road making,
canal construction and railway works.
Post-Independence era witnessed formation of Model Jail rules,
enhanced vocational training, scope for jail visit, periodic supervision
and introduction of wage system. On the whole, attempt to modify
51 N.S. Venkatanathacharya, Kautileeyartha Shastram (University of Mysore 1960)
at p. 56 cited by M. Rama Jois, Constitutional and Legal History of India (N.M. Tripathi,
Bombay 1984) at p. 342.
2 Ibid, at p. 343.
53 See, for discussion, M.J. Sethna, Society and the Criminal (2nd Edn., Kitab Mahal,
Bombay 1964) at pp. 294-95.
836 Reforms in the Justice Delive ry System, Modernisatio n and Law
teat: etl Ae RAR RITE S ESPI NER SSIS TSE
the prison culture by shifting from cruelty to humanism was clear?
Change in the approach relating to objectives of punishment had also
impact upon the method of treating the prisoners. Looking to the jails
as social hospitals, criminals as patients, and punishment as a process
of purification and rehabilitation had also distinct impact upon prison
reform mission. However, it is the human right activism by the judi-
ciary that gave a great fillip to the cause of prison justice during the
late 1970s and 1980s. All India Committee on Jail Reforms (headed by
Justice A. N, Mulla) (1980-83) has studied the issue of prison reform in
great detail and submitted its report.
18.4.2 International human rights norms, judiciary and the change

As elsewhere, here also, human rights’ sensitising approach has greatly
contributed to the institutional reform task> Article 10(a) of the ICCPR,
1966 states, “All persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the human per-
son.” Segregation of the accused from the convicted, and the juvenile
from the adults, is also contemplated. According to Rule 58 of the UN
Standard Minimum Rules for the Treatment of Prisoners and Related
Recommendation, 1955 “The purpose and justification of a sentence of
imprisonment or similar measure deprivative of liberty is to ultimately
to protect society against crime. This end can only be achieved if the
period of imprisonment is used to ensure, so far as possible, that upon
his return to the society the offender is not only willing but able to lead
a law-abiding and self-supporting life.” Thus, mainstreaming of pris-
oners into community life as good citizen is the target. The Standard
Minimum Rules provide in detail for rights of prisoners relating to
accommodation, personal hygiene, clothing, bedding, food, medi-
cal service, information, contact with outside world, religion, privacy,
books and sports. Regarding discipline, Rule 27 states, “Discipline and
order shall be maintained with firmness, but with no more restriction
than is necessary for safe custody and well-ordered community life.”
Prisoners’ right to work, to vocational training, education and recrea-
tion and social relations have also been guaranteed.
The Declaration of the Protection of All Persons from Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment adopted
by the U. N. General Assembly in 1975 has relevance to our discussion.
4 For similar shift in US and other countries see, Edwin Sutherland and Donald
Cressy, Principles of Criminology (6th Edn., The Times of India Press, Bombay 1965) at
p. 509; Donald Taft, Criminology (4th Edn., Macmillan, New York 1967) at p. 427.
Jil Contrel, “Human Rights, Constitutions and Prisoners: A global Perspective”
in K.I. Vibhute (Ed.), Criminal Justice (Eastern Book Company, Lucknow 2004) at pp. 302,
305.
jos a balla A ina Nahee
According to Article 8, “Any person who alleges that he has been
subjected to torture or other cruel, inhuman or degrading treatment
or punishment by or at the instigation of a public official shall have
the right to complain to, and to have his case impartially examined
by, the competent authorities of the State concerned.” Article 9 states,
“Wherever there is reasonable ground to believe that an act of torture
as defined in Article 1 has been committed, the competent authorities
of the State concerned shall promptly proceed to an impartial investi-
gation even if there has been no formal complaint.” Medical help and
separate accommodation for insane and mentally abnormal prisoners
are also guaranteed. The Convention Against Torture and other Cruel,
Inhuman and Degrading Treatment or Punishment, 1984 defines tor-
ture widely to include intentionally inflicted physical or mental pain
or suffering, and obligates upon each State Party to take effective leg-
islative, administrative, judicial or other measures to prevent acts of
torture in any territory under its jurisdiction (Articles 1 and 2). All
such acts of torture shall be offences under criminal law, and shall
be investigated and punished by the signatory states (Articles 4 to 6).
Right to compensation and rehabilitation shall be provided to the vic-
tims of torture under the municipal law (Article 14). Indian judiciary
has developed prison reform jurisprudence by substantially taking
help from the relevant international instruments. After the Bangalore
Declaration this has become part of judicial policy.
The judicial approach to prisoners’ rights is part of human rights
activism. Perhaps, judicial activism got social recognition in initial
years mainly because of judicial intervention to remedy atrocities in
custodial detention. As Y.V. Chandrachud, J., has spelt out, “Convicts
are not, by mere reason of the conviction, denuded of all the fundamen-
tal rights which they otherwise possess.”°* The traditional view that
prisoners do not have rights was rejected through this stance. Article
21 was made available to a prisoner while dealing with the question
of his right of reading and writing books while in jail in Prabhakar
Panduranga’’. Penalogical innovation in the shape of parole to check
recidivism was recommended for liberal use in Suresh Chandra®*. While
56D. Bhuvan Mohan Patnaik v. State of A.P., (1975) 3 SCC 185: (1975) 2 SCR 24 at p. 26:
AIR 1974 SC 2092; In Sunil Batra v. Delhi Admn., (1978) 4 SCC 494: 1979 SCC (Cri) 155,
VR. Krishna Iyer, J. observed, “Conviction for a crime does not reduce the person
into a non-person whose rights are subject to the whim of the prison administration
and, therefore, the imposition of any major punishment within the prison system 1s
conditional upon the observance of procedural safeguards.” See also State of A.P. v.
Challa Ramkrishna Reddy, (2000) 5 SCC 712: AIR 2000 SC 2083.
1 SCR
57 State of Maharashtra v. Prabhakar Pandurant Sanzgiri, AIR 1966 SC 424: (1966)
702.
and Krishan
58 Suresh Chandra v. State of Gujarat, (1976) 1 SCC 654: 1976 SCC (Cri) 145
Justice Delivery Syste
Reforms in theaR m, Modernisation and Law
838 ath e Deis " Siac EE SS
i Sac
ed,
resort to oppressive measures to curb political beliefs were not allow
the installation of high-volt live wire mechanism on the jail walls to
prevent escape from prisons could not be complained off, as no pris-
oner has fundamental right to escape from lawful custody.” In Charles
Sobraj® it was stated that the Court would intervene even in Prison
administration when constitutional rights or statutory prescriptions
are transgressed to injure a prisoner. In the matter of solitary confine-
ment, handcuffing, torture and other forms of human right violations,
judiciary has adopted pro-active approach. Court’s response to the let-
ters addressed to it and suo motu intervention exhibit high concern of
the judiciary about prison reform.”
18.4.3 The problem of overcrowding

Increase in population, including jail population, and failure to
expand the prison capacity have given rise to the problem of over-
crowding of jails. The percentage of occupancy rate based on official
capacity in Indian prisons is 128 as compared to US (131), England (106),
Bangladesh (269), Dominican Republic (256). However, in some jails
like Tihar jail, as against the housing capacity of 2500 persons in 1994-
95, there were 8500 prisoners.® More than 50 per cent of the prison
population is constituted by undertrial prisoners.
In Rama Murthy the Supreme Court dealt with the problem of over-
crowding and examined =vhether overcrowding itself violates any
constitutional right. Considering the adverse impact of overcrowding
upon the policies and arrangements for hygiene, security and separa-
tion of convicts from undertrials or children the Court directed the
Government to respond to the problem within six months from the
date of judgment. The Court said, “Even if overcrowding be not con-
Lal v. State of Delhi, (1976) 1 SCC 655: AIR 1976 SC 1139.

°° D. Bhuvan Mohan Patnaik v. State of A.P., (1975) 3 SCC 185: (1975) 2 SCR 24 at p. 26:
AIR 1974 SC 2092.
(1978) 4 SCC 104: AIR 1978 SC 1514.
*' Charles Sobraj v. Supdt. Central Jail, (1978) 4 SCC 104; Rama Murthy v. State of
Karnataka, (1997) 2 SCC 642: 1997 SCC (Cri) 386.
8 Vivien Stern, “Prison as Punishment-Time for a New Approach?” in K.I. Vibhute
(Ed.), op. cit., at pp. 286-88.
* “Indian prisons are now crammed with prisoners. In many jails they are so
overcrowded that the amenities designed for a far less number of inmates are now
being shared by disproportionately large number of internees therein, e.g. In Bihar
jails, as against a prison capacity of 26,300 the actual number of internees during first
half of 1996 was 36,700. In Madhya Pradesh the figure is 27,300 as against a prison
capacity of 17,720. Even in Delhi it has crossed 8300 as against a prison capacity of
2400.” State of Gujarat v. Hon'ble High Court of Gujarat, (1998) 7 SCC 392: AIR 1998 SC
3164.
Prison reforms
A 839
Sno UIE SS 5 OAR Sel
stitutionally impermissible, there is no doubt that the same does affect
the health of prisoners for the reasons noted above. The same also very
adversely affects hygienic conditions. It is, therefore, to be taken care
of.”** A suggestion was made by the Court to introduce alternative
to prison system (fine, civil commitment and probation) and estab-
lish more open jails in district headquarters. Increased use of paroles
also reduces overcrowding. Chapter 20 of the Report of All India
Committee on Jail Reforms (headed by Justice A. N. Mulla) (1980-83)
Vol. I deals with the system of remission, leave and premature release.
The Committee has mentioned about various types of remission and
has made some recommendations to streamline the remission system.
As to premature release, which is the effect of parole, the Committee
has stated that this is an accepted mode of incentive to a prisoner as
it saves him from the extra period of incarceration; it also helps in ref-
ormation and rehabilitation. The Zimbabwe practice of involving the
convicts of minor offences in community service with supervision by
local or charity organisations and increased application of probation in
England have resulted in lessening of the jail population.® The scheme
of private prisons operating in Australia gives another way of tackling
the problem of overcrowding.”
18.4.4 Limit on solitary confinement and handcuffing

“Prisons are built with stones of Law, (sang William Blake) and so,
when human rights are hashed behind bars, constitutional justice
impeaches such law. In this sense, courts which send citizens into pris-
ons have an onerous duty to ensure that, during detention and sub-
ject to the Constitution, freedom from torture belongs to the detenu”,
observed VR. Krishna lyer.” The point that solitary confinement and
bar fetter on prisoners without complying with the procedural safe-
guards violates Article 21 is reiterated in various cases.® The effect of
solitary confinement upon the emotion and mental health of prisoners
has been considered in Law Commission reports and other literature.
Section 30(2) of the Prisons Act, 1894, which provides that every pris-
oner under sentence of death, shall be confined in a cell apart from
19;
4 Rama Murthy v. State of Karnataka, (1997) 2 SCC 642: 1997 SCC (Cri) 386, para
1988 SCC (Cri) 248-mix up of
see also Sanjay Suri v. Delhi Admn., 1988 Supp SCC 160:
juveniles with convicts due to overcrowding is invalid.
65 Vivien Stein, op. cit., at pp. 298-99.
6 Jil Contrel, op. cit., at p. 322.
(Cri) 155, para 58.
6? Synil Batra v. Delhi Admn., (1978) 4 SCC 494: 1979 SCC
6 Ibid, Charles Sobraj v. Supdt., Central Jail, (1978) 4 SCC 104.
Jawaharlal Nehru and other
6° The writings of Charles Dickens, Oscar Wilde and
Admn., AIR 1978 SC 1675.
thinkers have been cited in Sunil Batra v. Delhi
840 Reforms in the Justice Delive ry System, Modernisatio n and Law
We e e e e =
all other prisoners, and shall be placed by day and by night under
charge of a guard, was interpreted strictly in Sunil Batra so as to con-
fine its operation to death convicts whose mercy petition 1s rejected by
the President. Imposition of solitary confinement on other prisoners
requires specific averment in the judgment by reference to Sections 73
and 74 IPC.
Imposing of chains, fetters and handcuffs is also confined to strict
limits of necessity. Under Section 56 of the Prisons Act, 1894 the
Superintendent may put a prisoner in bar fetters (‘) when he considers
it necessary; (ii) with reference either to the state of the prison or char-
acter of the prisoner; and (iii) for the safe custody of the prisoner. Two
basic considerations in the context of prison discipline are the secu-
rity of the prison and safety of the prisoner. These being the relevant
considerations, the necessity of putting any particular prisoner in bar
fetters must be relatable to them. According to the Supreme Court, the
power under Section 56 can be exercised only for reasons and consid-
erations which are germane to the objective of the statute, viz. safe
custody of the prisoner, which takes into consideration the character
and propensities of the prisoner?°It was observed, “Fetters, especially
bar fetters, shall be shunned as violative of human dignity within and
without prisons. The indiscriminate resort to handcuffs when accused
persons are taken to and from court and the expedient of forcing irons
on prison inmates are illegal and shall be stopped forthwith save ina
small category of cases dualt with next below. Reckless handcuffing
and chaining in public degrades, puts to shame finer sensibilities and
is a slur on our culture.” Serious exception is taken by the Apex Court
against non-implementation of the safeguard measures in the context
of handcuffing of undertrials and convicts in a number of cases.’
18.4.5 Sanitation, health and human rights

Absence of free choice about access to medicine and health care service,
and exposure to the atmosphere of jail in addition to the loss of liberty
are the ordinary hazards of prison life. But the hazard is more seri-
ous when the conditions in the jail are unsanitary and when prompt
and appropriate treatment is not accorded to the inmates. While in
colonial period, there were efforts to convert jails from dens of conta-
gious diseases into livable dungeons, the modern approach has been
to make them far more comfortable places with access to basic neces-
sities. As reflected in the facts of Rama Murthy, the supply of food in
(oO:
’! Aeltemesh Rein v. Union of India, (1988) 4 SCC 54; Sunil Gupta v. State of M.P., (1990)
3 SCC 119; Citizens for Democracy v. State of Assam, (1995) 3 SCC 743; Re, M.P. Dwivedi,
(1996) 4 SCC 152: 1996 SCC (Cri) 612.
SERS ISHOM, ast? yrs wife eitwietry
prison has been reported to be of satisfactory quality, quantity and
timing, whereas the problems of water scarcity and poor maintenance
of building have been acutely experienced The facts of Veena Sethi
show gross violation of human rights because of continued detention
of prisoners on ground of insanity for several years after medical dec-
laration of their sanity} Rudul Sah is another case where a communica-
tion gap in the prison administration had resulted in shocking depri-
vation of personal liberty and comforts of life for 14 years’ even after
acquittal order”
Bhagalpur blinding case is another instance of atrocity by the prison
authorities against the undertrial prisoners7> Pricking of eyes and
pouring of acid were barbaric acts by them defying all civilisational
values. The Supreme Court's orders for prompt medical treatment, free
legal aid and disciplinary measures against the police tried to assuage
the affected. For prevention of cruel treatment of the suspects by the
police in the course of investigation, various safeguard measures were
introduced?® Policing the police was envisaged for attaining larger
purpose of ensuring justice and objectivity in the functioning of the
legal system. Burden of proving the absence of cruelty by the detaining
authority was reposed upon the detaining authority in circumstances
of unnatural death of the accused person in detention?”
Prisoners’ right to sociability, although limited, has human right
dimension. From a total segregation to a breathing atmosphere of
social relations the development that occurred is worth noting. In
Rama Murthy, Hansaria, J. observed, “While in jail, communication
with outside world gets snapped with a result that the inmate does not
know what is happening even to his near and dear ones. This causes
additional trauma. A liberalised view relating to communication with
kith and kin specially is desirable. It is hoped that the model All India
Jail Manual, about the need of which we have already adverted, would
make necessary provision in this regard.””* Regarding visit of family
members, the Court observed, “For such persons, denial of conjugal life
during the entire period of incarceration creates emotional problems
also. Visits by a spouse is, therefore, of great importance.” Compared
to the West where conjugal interaction by temporary home visit or in
jail is allowed as part of prison reforms, realisation of spousal visit if
72, Rama Murthy v. State of Karnataka, (1997) 2 SCC 642: 1997 SCC (Cri) 386.
73 Veena Sethi v. State of Bihar, (1982) 2 SCC 583: 1982 SCC (Cri) 511.
74 Rudul Sah v. State of Bihar, (1983) 4 SCC 141: 1983 Se (Cr) 798:
75 Khatri v. State of Bihar, AIR 1981 SC 928 and 1068.
92.
76 D.K. Basu v. State of W.B., (1997) 1 SCC 416: 1997 SCC (Cri)
746: AIR 1993 SC 1960.
77 Ibid; see also Nilabati Behera v. State of Orissa, (1993) 2 SCC
642: 1997 SCC (Cri) 386, para 40.
78 Rama Murthy v. State of Karnataka, (1997) 2 SCC
OT
by
not conjugal visit is on similar lines. Regarding visit and interview
journalists, the law evolved in Prabha Dutt has progressive posture”?
Rule 549(4) of the Manual for the Superintendence and Management
of Jails, which is applicable to Delhi, provides that every prisoner
under a sentence of death shall be allowed such interviews and other
communications with his relatives, friends and legal advisers as the
Superintendent thinks reasonable. The Supreme Court insisted on rea-
sonable exercise of power by the authorities in view of the freedom of
speech and expression. In Sheela Barse, the Court viewed that a jour-
nalist should have access to information and should be permitted to
visit jails, children’s homes, remand homes, observation homes, bor-
stal schools and all institutions connected with housing of delinquent
or destitute children.” °
18.4.6 Prison labour and wages

Cheapness of prison labour had tempted the countries to retain it
as part of the penal system for a long time. While involving them in
useful work by imparting job skills has some positive contribution
towards diversion from drudgery, monotony and boredom of prison,
and towards economic gain and equipping of them with skill, the
gross abuses practiced in the form of long hours of work, disregard
for health and non payment of wages, etc. have been problematic from
human right perspective .clence, hard labour as a penal policy has
attracted judicial scrutiny under the right against exploitation and
international human rights norms. Again, the human rights discourse
paved the way for prison reforms.
Rigorous imprisonment as a punishment under the Indian Penal
Code connoted subjection of the prisoner to hard labour. The jail
authorities are enjoined to impose hard labour and stand on a footing
different from that of employer-employee relation.** The High Courts
had no unanimity of opinion about the effect of Article 23° of the
” Prabha Dutt v. Union of India, (1982) 1 SCC 1: 1982 SCC (Cri) 41.
"Sheela Barse v. Union of India, (1986) 3 SCC 596: 1986 SCC (Cri) 337.
‘1 D.P. Wadhwa, J. “Here, hard labour is a part of sentence and not of any contract.
Nobody ever said that during pre-constitutional period, sentence of imprisonment
with hard labour was begar or ‘other forms of forced labour’. State of Gujarat v. Hon'ble
High Court of Gujarat, (1998) 7 SCC 392: AIR 1998 SC 3164 at p. 3188.
* 23. Prohibition of traffic in human beings and forced labour.
(1) Traffic in human beings and begar and other similar forms of forced labour
are prohibited and any contravention of this provision shall be an offence
punishable in accordance with law.
(2) Nothing in this article shall prevent the State from imposing compulsory
service for public purposes, and in imposing such service the State shall not
make any discrimination on grounds only of religion, race, caste or class or any
Prison r
o reforms 843
ieee ge SN RS
Constitution upon the matter whether wages shall be paid to the pris-
oners who were putting hard labour and whether Minimum Wages
Act, 1948 would be applicable. The Kerala High Court led the opinion
that the wages given to prisoners must be at par with the wages fixed
under the MWA and the request to deduct the cost for providing food
and clothes to the prisoner from such wages was spurned down.® The
Gujarat High Court adopted this approach whereas Rajasthan High
Court directed the State Government to constitute a Commission to
guide the wage policy vis-a-vis prisoners. The Andhra Pradesh High
Court refused to examine the issue of adequacy of wages under Article
23.°° The Himachal Pradesh High Court also directed to have a decision
based on Committee report and stopped deduction of maintenance
expenses from the prisoners’ wages.** The Supreme Court, in a land-
mark case, adopted a balancing approach keeping in mind the spirit
of Article 23(2), the Constituent Assembly Debates, the comparative
experience in other jurisdictions and the justifications for effectuation
of hard labour. The Court held: (1) it is lawful to employ the prison-
ers sentenced to rigorous imprisonment to do hard labour whether he
consents to do it or not; (2) it is open to the jail officials to permit other
prisoners also to do any work which they choose to do, provided, such
prisoners make a request for that purpose; (3) it is imperative that the
prisoners should be paid equitable wages for the work done by them
after considering the recommendations of wage fixation body; (4) until
the State Government takes any decision on such recommendations,
every prisoner must be paid wages for the work done by him at such
rates or revised rates as the Government concerned fixes in the light
of the observations made above; and (5) the State shall make law for
setting apart a portion of the wages earned by the prisoners to be paid
as compensation to deserving victims of the offence the commission
of which entailed the sentence of imprisonment to the prisoner, either
directly or through a common fund to be created for this purpose or
in any other feasible mode.
K.T. Thomas, J. observed, “It is not only the legal right of a workman
to have wages for the work, it is a social imperative and an ethical com-
pulsion. Extracting somebody’s work without giving him anything in
return is only reminiscent of the period of slavery and the system of
of them.”
3 In the matter of Prison Reforms and Enhancement of Wages of Prisoners, 1983
Ker LT 512: AIR 1983 Ker 261.
4 Referred in (1998) 7 SCC 392: AIR 1998 SC 3164.
85 P Bhaskara Vijayakumar v. State of A.P., AIR 1988 AP 295.
86 Gurdev Singh v. State of H.P., AIR 1992 HP 76.
AIR 1998 SC
*7 State of Gujarat v. Hon'ble High Court of Gujarat, (1998) 7 SCC 392:
3164.
ation and Law
844 Reforms in the Justice Delivery System, Modernis
DO
Committee report in
begar.”*® He approvingly cited from the Mulla
of NHRC and the
support of this proposition.” The recommendations
the provisions in
Draft Prison Bill, 1996 prepared by the NHRC and
taken into consid-
international human rights instruments were also
labour under
eration. The Court viewed that the requirement of hard
r Article
punishment came under the purview of public purpose unde
reim-
23(2), and that payment of full wages without deduction for
-
bursing expenses of maintenance was violating the equality princi
is
ple. Wadhwa, J. in concurring judgment referred to these factors. It
viewed by K.I. Vibhute that the concept of equitable wages is ambiva-
lent and needs to be streamlined through legislative measure.”
18.4.7 Towards reformation of prisoner

The aphorism that “if every saint has a past, every sinner has a future”
has a basis not only in legal philosophy but also in legal rules owing to
the thrust of human rights. In Mohd. Giasuddin v. State of A.P.', it was
observed by V.R. Krishna lyer, J.:
“If the psychic perspective and the spiritual insight we have tried to
project is valid, the police bully and the prison drill cannot ‘minister
to a mind diseased’ nor tone down the tension, release the repression,
unbend the prevention, each of which shows up as debased deviance,
violent vice and behavioural turpitude. It is a truism, often forgotten in
the hidden vendetta in human bosoms, that barbarity breeds barbarity,
and injury recoils as injt.ry, so that if healing the mentally or morally
maimed or malformed man (found guilty) is the goal, awakening the
8 Ibid, para. 35.

*° The Mulla Committee had recommended, “All prisoners under sentence should
be required to work subject to their physical and mental fitness as determined
medically. Work is not to be conceived as additional punishment but as a means of
furthering the rehabilitation of the prisoners, their training for work, the forming of
better work habits, and of preventing idleness and disorder.
Punitive, repressive and afflictive work in any form should not be given to
prisoners. Work should not become a drudgery and a meaningless prison activity.
Work and training programmes should be treated as important avenues of imparting
useful values to inmates for their vocational and social adjustment and also for their
ultimate rehabilitation in the free community...
Rates of Wages should be fair and equitable and not merely nominal or paltry.
These rates should be standardised so as to achieve a broad uniformity in wages
system in all the prisons in cash State and Union Territory.”
*” KI. Vibhute, “Compulsory Hard Prison Labour and the Prisoners Right to
Receive Wages: Constitutional Vires and Judicial Voices” in K.I. Vibhute (Ed.), op. cit.,
at pp. 336, 349; K.I. Vibhute, “Rigorous Imprisonment and the Prisoners’ Right to
Receive Wages” in K.D. Gaur (Ed.), Criminal Law and Criminology (Deep and Deep, New
Delhi 2003) at p. 696.
1 (1977) 3 SCC 287: 1977 SCC (Cri) 496.
Justice to victims of crimes
ee
e r retreree een . 845
inner being, more than torturing through exteri
or compulsions, holds
out better curative hopes”,
By making the conditions of prison suitable through the above
dis-
cussed reforms for inner awakening and purification of mind,
the
reformative technique operates to convert the guilty into good
citi-
zens. “The constitutional culture has crystallised in favour of prison
justice”, says K.D. Gaur? As KT. Thomas, J. viewed, “Reformation
should hence be the dominant objective of a punishment and during
incarceration every effort should be made to recreate the good man out
of convicted prisoner. An assurance to him that his hard labour would
eventually snowball into a handsome saving for his own rehabilitation
would help him to get stripped of the moroseness and desperation
in his mind while toiling with the rigours of hard labour during the
period of his jail life. Thus, reformation and rehabilitation of a prisoner
are of great public policy. Hence they serve a public purpose.”
18.5 Justice to victims of crimes
18.5.1 Concept and background

A major concern that the legal system has espoused in recent times is
promoting the goal of justice to victims. This goal is the other side of
the criminal justice system’s spectrum because every crime has simul-
taneously the offender/s and victim/s. Balance of justice can ill-afford
to ignore any of the sides. The very genesis of criminal law is trace-
able to a set of principles that primarily aimed at compensating the
victim. Ancient Indian law givers prescribed duty upon wrongdoers
to compensate the victims of offences against property in addition to
undergoing a process of purification, and in the alternative, duty of
the king to compensate if the stolen property could not be recovered.
The Muslim Law’s recognition of victim’s right to participate in crim-
inal trial and exercise his option of punishment or compensation is
another historical factor that evinces the significant role of the victim.
In course of time, the state’s assumption of responsibility to control
crimes for the reason that crime is a wrong against the society as a
whole; and modernisation’s increased focus on reform of prisons and
prisoner and comforts to the accused, relegated the position of vic-
2 K.D. Gaur, “Human Rights of Detainees and Prisoners: Suggestions for Prison
Reform” in K.D. Gaur (Ed.), Criminal Law and Criminology (Deep and Deep, New Delhi
2003) at pp. 361, 373.
%3 State of Gujarat v. Hon'ble High Court of Gujarat, (1998) 7 SCC 392: AIR 1998 SC 3164,
para 33.
846 Justice Delivery System, Modernisation and Law
Reforms in theS
E
tim into insignificance and vanishing point of criminal law.9# Not only
that victim’s right to compensation became precarious but also that his
effective participation with concern for proper outcome in the criminal
trial became uncertain. As against these developments and impact of
modernity, two integrated factors that try to help in restoring the right
balance by focusing on justice to victims are human rights approach
and post-modernist search for traditionalist solution. International
human rights instruments, legislative and judicial contributions and
reports of Law Commission and Committees have been guiding the
growth of the law. But the extent of development in this sphere, as will
be discussed, falls short of the social expectations, thus disappointing
the justice-demanding minds.
According to the UN Declaration of the Basic Principles of Justice
for the Victims of Crime and Abuse of Power, 1985 the term “vic-
tim” includes any person who, individually or collectively, has suf-
fered harm, including physical or mental injury, emotional suffering,
economic loss or substantial impairment of his Fundamental Rights,
through acts or omissions that are in violation of criminal laws.
Rendering of justice to victims consists in recognition and protection
of victims’ several rights. The victims are entitled to the mechanisms
of justice and prompt redress for the harm suffered; right to informa-
tion about such mechanisms; right to treatment and assistance; right
to fair restitution by the offender; and in the alternative, right to be
compensated by the state.'> In the domestic law, by extending the logic
that procedure established by law under Article 21 should be just, fair
and reasonable, and should result in protection of dignified life and
personal liberty not only of the accused persons but also of the victims
of offences and wrongful acts, the Constitution’s support to victim-
* VR. Krishna lyer, J. in Rattan Singh v. State of Punjab, (1979) 4 SCC 719: 1980 SCC
(Cri) 17 viewed, “It is a weakness of our jurisprudence that the victims of the crime,
and the distress of the dependants of the prisoner, do not attract the attention of the
law. Indeed, victim reparation is still the vanishing point of our criminal law!” DP.
Wadhwa, J. in State of Gujarat v. Hon'ble High Court of Gujarat, (1998) 7 SCC 392: AIR
1998 SC 3164 observed, “In our efforts to look after and protect the human rights of
the convict we cannot forget the victim or his family in case of his death or who is
otherwise incapacitated to earn his livelihood because of criminal act of the convict.
The victim is certainly entitled to reparation, restitution and safeguards of his rights.
Criminal justice would look hollow if justice is not done to the victim of the crime.
Subject of victimology is gaining ground while we are also concerned with the rights
of the prisoners and prison reforms. A victim of crime cannot be a ‘forgotten man’ in
the criminal justice system. It is he who has suffered the most. His family is ruined
particularly in case of death and other bodily injury. This is apart from the factors like
loss of reputation, humiliation, etc. An honour which is lost or life which is snuffed
out cannot be recompensed but then monetary compensation will at least provide
some solace”.
*° UN Resolution Number 40/34 November 1985. Principles 4 to 8.
Justice
Wtoi victims of crimes
MiM e ne eT e i =| 847 CAE
oriented reforms got crystallised. The justifications for victim-orien-
tation are several: (/) victim is the unfortunate recipient of harm, loss
or injury, especially when crimes arise from deep-seated economic
dissatisfaction and social maladjustment; (ii) state has the responsi-
bility of protecting the life, limb and property of the subjects, and its
failure should be made good by a compensatory system; (iii) victim
needs protection against retaliation by the accused; and (1v) his role in
helping investigation and prosecution is crucial, and to be used with
adequate opportunity for participation, and should not be an object of
harassment and privacy encroachment.
There has been only a belated realisation about the need to equip
the legal system with sufficient victim-orientation. Courts began to
award compensation to the victims of rape and atrocities of the police.
Right to constitutional remedy was also used to carve out restitutive
or compensatory remedy. But this remedy remains an ad hoc meas-
ure, rather than as a consistent practice. The relevant legislative provi-
sions, human right principle, Law Commission report and Justice V.S.
Malimath Committee report have oriented towards rendering justice
to victims.
18.5.2 Legislative scheme for victim compensation

The legislative measure on the subject is scattered and not properly
streamlined. The Criminal Procedure Code, 1973, the Fatal Accidents
Act, 1855, the Motor Vehicles Act, 1988 and Probation of Offenders Act,
1958 contain some provisions about victim compensation.
Under Section 357(1)(b) of the Criminal Procedure Code, 1973, when
a court imposes a sentence of fine or a sentence (including a sentence
of death) of which fine forms a part, the court may, when passing judg-
ment, order the whole or any part of the fine recovered to be applied
in the payment to any person of compensation for any loss or injury
caused by the offence, when compensation is, in the opinion of the
court, recoverable by such person in civil court.%* Compensation not
% “S. 357: Order to pay compensation.—(1) When a Court imposes a sentence of fine
or a sentence (including a sentence of death) of which fine forms a part, the Court
may, when passing judgment order the whole or any part of the fine recovered to be
applied:
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by
the offence, when compensation is, in the opinion of the Court, recoverable by
such person in a civil court;
(c) when any person is convicted of any offence for having caused the death of
another person or of having abetted the commission of such an offence, in
paying compensation to the persons who are, under the Fatal Accidents Act
(13 of 1855), entitled to recover damages from the person sentenced for the loss
848 Reforms in the Justice Delivery System, Modern isation and Law
cl a Ite sR RRO RES A SESS SAESA
exceeding one hundred rupees may also be awarded against any per-
son for getting another person groundlessly arrested by the police.
(Section 358)
The Supreme Court in Palaniappa Gounder case adopted 2 restric-
tive approach about award of compensation by observing, Though
there is power to combine a sentence of death with a sentence of fine
that power is sparingly exercised because the sentence of death is an
extreme penalty to impose and adding to that grave penalty a sentence
of fine is hardly calculated to serve any social purpose.” Reducing
the amount of fine (Rs 20,000) fixed by the High Court calculated
on the basis of loss to dependents to Rs 3500, the Court viewed that
more relevant factors to be considered were whether sentence of fine
is called for particularly when death penalty or life imprisonment is
imposed; what was the motive for crime; and pecuniary gain from the
crime rather than mere loss to defendants. In Sarwan Singh the Court
reiterated, “In awarding compensation it is necessary for the Court
to decide whether the case is a fit one in which compensation has to
be awarded. If it is found that compensation should be paid, then the
capacity of the accused to pay a compensation has to be determined.
In directing compensation, the object is to collect the fine and pay it to
the person who has suffered the loss. The purpose will not be served if
the accused is not able to pay the fine or compensation for, imposing a
default sentence for non-payment of fine would not achieve the object.
If the accused is in a positicn to pay the compensation to the injured or
his dependents to which they are entitled to, there could be no reason
resulting to them from such death;

(d when any person is convicted of any offence which includes theft, criminal
“—
misappropriation, criminal breach of trust, or cheating, or of having dishonestly

received or retained, or of having voluntarily assisted in disposing of, stolen
property knowing or having reason to believe the same to be stolen, in
compensating any bona fide purchaser of such property for the loss of the same
if such property is restored to the possession of the person entitled thereto.
(2 —
If the fine is imposed in a case which is subject to appeal, no such payment shall
be made before the period allowed for presenting the appeal has elapsed, or, if
an appeal is presented, before the decision of the appeal.
(3) When a Court imposes a sentence, of which fine does not form a part, the
Court may, when passing judgment order the accused person to pay, by way of
compensation such amount as may be specified in the order to the person who
has suffered any loss or injury by reason of the act for which the accused person
has been so sentenced.
(4) An order under this section may also be made by an appellate court or by the
High Court or Court of Session when exercising its powers of revision.
(5) At the time of awarding compensation in any subsequent civil suit relating to
the same matter, the Court shall take into account any sum paid or recovered as
compensation under this section.”
*” Palaniappa Gounder v. State of T.N., (1977) 2 SCC 634: 1977 SCC (Cri) 397.
Justice
5 eno tovollvictims of vein
opie oh: crimes ed, Lele ane 849
ene Sa AAR
for the Court not directing such a compensation.”* The widow of the
deceased person in this murder case was awarded a compensation of
Rs 3500 to be paid by the convict. In Mangilal the High Court’s award
of compensation to be contributed by each of seven convicts at the
rate of Rs 30,000 was found objectionable by the Supreme Court in the
absence of imposition of fine by the trial court and absence of hearing
on the point at the High Court.
It is submitted, the CrPC provisions on compensation have severe
limitations because of the archaic quantum of fine prescribed under
the Indian Penal Code and the very rare invoking of the provision due
to discretion conferred upon the courts. The judicial approach in ear-
lier cases was more influenced by factors related to the accused rather
than factors focusing on the victim. This had adverse impact upon the
growth of law towards proper direction. In Hari Kishan, while award-
ing a compensation of Rs 50,000 to the victim of grievous hurt, the
Supreme Court observed about Section 357, “It is an important provi-
sion but Courts have seldom invoked it. Perhaps due to ignorance of
the object of it... It may be noted that this power of Courts to award
compensation is not ancillary to other sentences but it is in addition
thereto. This power was intended to do something to reassure the vic-
tim that he or she is not forgotten in the criminal justice system. It is
a measure of responding appropriately to crime as well of reconcil-
ing the victim with the offender. It is, to some extent, a constructive
approach to crimes. It is indeed a step forward in our criminal justice
system. We, therefore, recommend to all Courts to exercise this power
liberally so as to meet the ends of justice in a better way."
There is the need to develop the compensation law under CrPC in
the light of similar observation made by A.S. Anand, J. in D.K. Basu
to the effect that, “The Courts have the obligation to satisfy the social
aspirations of the citizens because the Courts and the law are for the
people and expected to respond to their aspirations. A court of law
cannot close its consciousness and aliveness to stark realities. Mere
punishment of the offender cannot give much solace to the family of
the victim-civil action for damages is a long drawn and a cumbersome
judicial process. Monetary compensation for redressal by the Court
finding the infringement of the indefeasible right to life of the citi-
zen is, therefore, useful and at time perhaps the only effective remedy
%8 Sarwan Singh v. State of Punjab, (1978) 4 SCC 111: 1978 SCC (Cri) 549; per Kailasam,
J., “It is the duty of the court to take into account the nature of the crime, the injury
suffered, the justness of the claim for compensation, the capacity of the accused topay
and other relevant circumstances in fixing the amount of fine or compensation.
° Mangilal v. State of M.P., (2004) 2 SCC 447: 2004 SCC (Cri) 1085: AIR 2004 SC 1280.
SC
1 Hari Singh v. Sukhbir Singh, (1988) 4 SCC 551: 1988 SCC (Cri) 984: AIR 1988
2127:
ciinnmininamencnastoum opment ayes pescmmno io: aie
aes, Aeron
to apply balm to the wounds of the family members of the deceased

victim, who may have been the breadwinner of the family."
The Fatal Accidents Act, 1855 provides for compensation to the
dependents of deceased persons whose death are occasioned by action-
able wrong.’ Court’s view that compulsory damages under Section
1-A of the Act for wrongful death must be limited strictly to the pecu-
niary loss to the beneficiaries." In M.S. Grewal, where criminal neg-
ligence of two teachers resulted in accidental drowning of 14 school
children on picnic, the Court awarded a compensation of rupees five
lakhs for each student’s family to be paid by the school.'* This was
separate obligation apart from punishment to the negligent teachers.
However, because of the disadvantageous features of civil litigation
like delay, cost and cumbersome character of the procedure, the rem-
edy has become blunt instrument.’
The enormity of motor vehicle accidents has necessitated adequate
provisions for compensating the victims. Under Section 140(1) of the
Motor Vehicles Act 1988, “Where death or permanent disablement of
any person has resulted from an accident arising out of the use of a
motor vehicle or motor vehicles, the owner of the vehicle shall, or, as
the case may be, the owners of the vehicles shall, jointly and sever-
ally, be liable to pay compensation in respect of such death or disable-
ment in accordance with the provisions of this section.” The amount
of compensation payable under this provision on no fault liability is
fixed whereas Section 163'A provides for payment of compensation
according to the formula of loss of earning ability. Streamlining of the
whole law along with insurer's liability has reinforced the policy of
social security.’
There is also compensatory policy under the Probation of Offenders
Act, 1958. Under Section 5 of the Act courts have power of ordering
reasonable compensation for loss or injury in cases where the accused
is released on probation or let off with admonition.
'"! D.K. Basu v. State of W.B., (1997) 1 SCC 416.
? S.1-A of the Act: “Whenever the death of a person shall be caused by wrongful
act, neglect or default, and the act, neglect or default as would (if death had not caused)
have entitled the party injured to maintain an action and recover damages in respect
thereof, the party who would have been liable if death had not ensued, shall be liable
to an action or suit for damages, notwithstanding the death of the person injured, and
although the death shall have been caused under such circumstances amount in law
to felony or other crime.”
8 C.K. Subramania Iyer v. T. Kunhikuttan Nair, (1969) 3 SCC 64: AIR 1970 SC 376.
4 M.S. Grewal v. Deep Chand Sood, (2001) 8 SCC 151: 2001 SCC (Cri) 1426.
® KI. Vibhute, “Justice to Victims of Crime: A Human Rights Approach” (Eastern
Book Co., Lucknow 2604) at pp. 350, 352.
106 See Deepal Girishbhai Soni v. United India Insurance Co. Ltd . (2004) 5 SCC 385: 2004
SCC (Cri) 1623: AIR 2004 SC 2107.
Justice to
Se victims of crimes a eh 851
18.5.3 Victim compensation under the Constitution
The practice of awarding compensation for loss of personal liberty in
course of habeas corpus remedy was started in Rudul Sah case where
the unfortunate detainee suffered detention for 14 years’ even after
trial court’s order of acquittal. Y.V. Chandrachud, CJI observed for the
Court:
“One of the telling ways in which the violation of that right can rea-
sonably be prevented and due compliance with the mandate of Article
21 secured, is to mulct its violaters in the payment of monetary com-
pensation. Administrative sclerosis leading to flagrant infringements of
fundamental rights cannot be corrected by any other method open to
the judiciary to adopt. The right to compensation is some palliative for
the unlawful acts of instrumentalities which act in the name of public
interest and which present for their protection the powers of the State as
a shield. If civilisation is not to perish in this country as it has perished
in some others too well known to suffer mention, it is necessary to edu-
cate ourselves into accepting that, respect for the rights of individuals is
the true bastion of democracy. Therefore, the State must repair the dam-
age done by its officers to the petitioner’s rights. It may have recourse
against those officers,.’"°7
In view of the fact that along with compensating the victim the officers
responsible for deprivation of right should be held personally liable in
the ultimate analysis in order to promote legality by spreading ripples
of deterrence and communicating the message of liability to the right
point,’ the above thinking is on right direction. The trend of award-
ing compensation in cases of unjustified detention,"“” unreasonable
beating," arbitrary handcuffing™’ and custodial death’* has been
continued along with suggestion for recovering the damages from the
erring public servants or apportioning their responsibility with that of
the Government. In Nilabati Behera A.S. Anand, J. observed:
“It is a sound policy to punish the wrongdoer and it is in that spirit
that the courts have moulded the relief by granting compensation to the
victims in exercise of their writ jurisdiction. In doing so the courts take
into account not only the interest of the applicant and the respondent
but also the interests of the public as a whole with a view to ensure that
107 Rudul Sah v. State of Bihar, (1983) 4 SCC 141: 1983 SCC (Cri) 798.
18 P Ishwara Bhat, Administrative Liability of Government and Public Servant (Deep
& Deep, New Delhi 1983) at pp. 125-56; see also, P. Ishwara Bhat, Fundamental Rights
(Eastern Law House, Kolkata 2004) at pp. 258-59.
9 Bhim Singh v. State of J&K, (1985) 4 SCC 677: AIR 1986 SC 494.
10 Saheli v. Commr. of Police, (1990) 1 SCC 422: AIR 1990 SC 513.
11 State of Maharashtra v. Ravikant Patil, (1991) 2 SCC 373. :
407;
12 Sebastian M. Hongray v. Union of India, (1984) 3 SCC 82: 1984 SCC (Cri)
v.
Bhagwan Singh v. State of Punjab, (1992) 3 SCC 249: AIR 1992 SC 1689; Nilabati Behera
State of Orissa, (1993) 2 SCC 746.
852 Justice Delivery System, Modernisation and Law
Reforms in thee
e
OF
do perform their
public bodies or officials do not act unlawfully and
tal rights of a
public duties properly particularly where the fundamen
citizen under Article 21 is concerned."
in Delhi
Regarding the duty to compensate rape victims, it was viewed
d to the
Domestic Working Women’s Forum, “It is necessary, having regar
on
Directive Principles contained under Article 38(1) of the Constituti
of India to set up Criminal Injuries Compensation Board. Rape vic-
tims frequently incur substantial financial loss. Some, for example, are
too traumatised to continue in employment. Compensation for victims
shall be awarded by the Court on conviction of the offender and by
the Criminal Injuries Compensation Board whether or not a convic-
tion has taken place. The Board will take into account pain, suffer-
ing and shocks as well as loss of earnings due to pregnancy and the
expenses of the child but if this occurred as a result of the rape.”""4 In
Bodhisattwa Gautam it was held, “If the Court trying an offence of rape
has jurisdiction to award the compensation at the final stage, there is
no reason to deny to the Court the right to award interim compensa-
tion...On the basis of principles set out in the aforesaid decision in
Delhi Domestic Working Women’s Forum, the jurisdiction to pay interim
compensation shall be treated to be part of the overall jurisdiction of
the Courts trying the offences of rape which, as pointed out above is
an offence against basic human rights as also the Fundamental Right
of Personal Liberty and Life"
Some parameters or methodology about fixation of victim compen-
sation were attempted in A.K. Singh v. Uttarakhand Jan Morcha"®. The
facts of the case involved a public stir for separate state and against the
policy of region-based reservation in educational institutions, which
was responded by police firing, detention and atrocities resulting in
killing of 24 persons, rape of seven women, sexuai molestation of 17
persons and injury to many persons in addition to illegal detention as
disclosed by CBI investigation. The High Court acted solely upon the
CBI report pending trial before subordinate court and without taking
into consideration any other evidence, and issued series of directions
about payment of compensation which was fixed on a higher scale
(Rs 10 lakhs for families of victims who died in police firing, Rs 10
lakhs for rape victims, Rupees five lakhs for sexually molested, and
Rs 50,000 to 2.5 lakhs for the injured varying in proportion to injury),
immediate payment of the same, and the source of fund from which
"3 Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 at p. 769.

"4 Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14.
"' Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490: AIR 1996 SC 922 at
para 18.
116 (1999) 4 SCC 476: AIR 1999 SC 2193.
money to be paid (total amount was about Rs 36 crores). It was argued
before the Supreme Court that learned Judges of the High Court did
not take into account the financial capacity of the State Government,
nor its resources for making up the said amount nor the priorities to be
honoured by the State Government nor even the legislative mandates
involving State funding, while ordering the Government to incur such
huge expenditure of a recurring nature. The High Court’s approach
of dispensing with the requirement of sanction for prosecuting public
servant was, it was argued, taking away the discretion of Session Court
to be exercised on the basis of facts of each case. The Supreme Court
observed, “The question of necessity of sanction need be considered
by the Sessions Judge if and when raised by the accused. We have no
doubt that the High Court should not have embarked upon a discus-
sion regarding sanction at such a premature stage, that too in the writ
petition filed by the Samity. If the finding of the High Court is that
no sanction is required, such finding has to be treated as bad mainly
because that question has to be decided after taking into account vari-
ous considerations including the fact situation in each case.”"” It was
held that the High Court should not have pre-empted the Court, before
which, each case would come up in the normal course, to determine
the question of jurisdiction, if it is raised by any of the parties. The
High Court order was set aside without disturbing the compensation
already paid, and allowing the factor of compensation to be decided on
the facts of each case. It is submitted, the Supreme Court has tried to
streamline the methodology of compensating so that final order about
compensation was logical outcome of trial rather than hasty conclu-
sion without looking to facts of individual cases. What utmost that
could have been done by the High Court in such circumstance was
award of interim compensation.
There have been criticisms on the Supreme Court judgment to the
effect that it did not appreciate the gravity and seriousness of the crime,
and that, compared to a subsequent case Chandrima Das"* where rape
victim was compensated by award of compensation to the extent of Rs
10 lakhs, the Uttarakhand case was dramatically opposite and uncalled
for and sending a wrong signal." It is submitted, the comment is
uncharitable as the Apex Court was merely streamlining the methodol-
ogy to synchronise with the procedure established by law, rather than
approving the conduct of the state administration or unusual response
of the High Court to act according to mere investigation report with-
ny” Ibid, atip. 29

988. |
"8 Railway Board v. Chandrima Das, (2000) 2 SCC 465: AIR 2000 SC
19 KD, Gaur, “Justice to Victims of Crime: A Human Rights Approach” in K.I.
Vibhute (Ed_), op. cit., at pp. 350, 358.
854 Reforms in the Justice Delivery System,Dhl and Law
Modernisation BRS
(i i ha NM eM Ric eee: ak ee
out waiting for outcome of trial. Even in Chandrima Das High Court of
Calcutta acted in the context of writ petition seeking compensation to a
rape victim. The rape victim was a Bangladesh citizen, and the remedy
sought in PIL by an advocate from the employer, Railway Board, was
for tort of rape committed by its servants. The High Court awarded
compensation of Rs 10 lakhs on the basis of facts of the case. In appeal,
the Supreme Court dwelt on the issues such as availability of right
under Article 21 to a foreign citizen, the thrust and impact of interna-
tional human right obligations, and the method of applying the test
distinguishing between sovereign and non-sovereign function and
dismissed the appeal. Astonishingly, no reference is made in the judg-
ment to Uttarakhand case. The difference between these two cases was
that in Uttarakhand the High Court acted on the basis of CBI report and
numerous victims were involved with high financial stake whereas in
Chandrima the High Court only “noticed” the facts about rape and only
one victim was involved and low financial stake but serious interna-
tional stake was involved. It is submitted, although tort jurisdiction
is independent of criminal law jurisdiction, in view of common facts
involved and overlapping of remedies, a more refined approach needs
to be adopted and the anomaly and uncertainty shall be eliminated.
Another development in the matter of constitutional tort is award
of compensation to the victims of communal riots.’ Administrative
remedies of compensation to the victims of natural calamities and ter-
rorism have also assuaged the position of victims. On the whole, emer-
gence of the law of constitutional torts has helped the victims although
reinforcement of that concept through the application of rule of law
norms needs to be done for more comfortable and stable position.
18.5.4 Law Commission and Committee reports on victim compensation

The Fifth Law Commission in its 42nd Report (1971) recommended for
inclusion of one provision in IPC enabling the court to direct that the
whole or part of fine realised from the offender be paid as compensation
to the victim. One of the members, Justice R.L. Narasimhan, suggested
for inclusion of a statutory duty (proposed Section 70-A) upon the
offenders to pay compensation to the victim of offence against human
body, property, privacy and reputation as an additional punishment.
In 1997, the Fourteenth Law Commission viewed in its 156th report
that the question of fine as additional punishment was problematic in
some circumstances and that the proposal for “victim compensation
scheme” as suggested in its 154th Report and its recommendation in
120 -R. Gandhi v. Union of India, AIR 1989 Mad 205; Inder Puri General Store v. Union of
India, AIR 1992 j&K 11. .
Justice to victims of crimes 855
a enn
152nd Report for compensating the victims of custodial crimes and the
Tamil Nadu “Victim Compensation Fund” model may be taken into
consideration.
Acting upon the request made by the Central Government to com-
prehensively review the working of the scheme under Section 357
CrPC, the Law Commission examined from the perspective of victi-
mology, and made the following findings: (i) the efficacy of Section 357
CrPC is doubtful because of its meagre application by the Courts, and
its expanded scope by itself will not be sufficient; (ii) compensation
should not be confined to fines, penalties and forfeitures realised, but
state should assist the victims of crime; (iii) state’s duty to compensate
is theoretically justified because of its basic duty to protect people and
property by enforcement of law, and also because of failure of wel-
fare system that resulted in continuation of poverty, unemployment,
discrimination and insecurity; and (iv) state’s duty to compensate has
constitutional underpinnings because of the provisions in Part III, IV
and IV-A of the Constitution (Articles 14, 21, 22, 23, 24, 32, 38, 39-A, 41,
51-A).
The recommendations made by the Law Commission in its 156th
Report are as follows:
(a) Insertion of a mandatory provision in CrPC, notwithstand-
ing Section 357, imposing a duty upon the criminal court to
award compensation of not less than Rs 25,000 and rupees
one lakh respectively to persons who sustain bodily injury
not causing death during custody and victims of custodial
death with a joint and several liability of the convicted pub-
lic servant and the concerned Government;
(b) Insertion of a legal provision imposing obligation upon
every State Government to formulate, in coordination with
the Central Government, a scheme for providing funds for
compensating the victims of crimes or their dependents
who have suffered loss or injury as a result of the crime who
require rehabilitation;
(c) The said scheme shall be administered by the District (DLSA)
and State Legal Services Authorities (SLSA) constituted
under the Legal Services Authorities Act, 1987;
(a) The trial court may, at the conclusion of the trial, if satisfied
that the compensation awarded under Section 357 is inad-
equate for rehabilitation, recommend to DLSA for award of
compensation, if in its opinion is less than Rs 30,000 or may
recommend to SLSA if the proposed amount is more than Rs
30,000; and
856 Reforms in the Justice Modernisation andRELawAE
Delivery System, MS
i I hE MaCARE AB 3SLES SEN ALIS
(¢) Where the offender is not traced oridentified, but the victim is
identified, and no trial takes place, the victim or his depend-
ent may make an application to DLSA or SLSA, as the case
may be, for award of compensation; and .
(f) DLSA or SLSA, as the case may be, may order for immediate
first aid facility or for medical benefits to be provided free of
cost in order to alleviate the suffering of the victim; and
(g) DLSA or SLSA, as the case may be, should have special
consideration while compensating the victims of custodial
crimes, rape, and child abuse; and physically and mentally
disabled victims of crimes.
Efforts have been put by independent agencies to formulate their mod-
els to compensate the victims. The Victim Compensation Bill, 1995
prepared by the Indian Society of Victimology, the NLSIU Bill and
Professor Madhava Menon’s proposal are products of such efforts.
All these models suggest for establishing Victim Compensation Fund
and provide compensation to the victims of crimes who do not have
criminal records and need rehabilitation. The NLSIU Bill proposes
to compensate the victims or their dependent irrespective of the out-
come of trial, establishing of hierarchy of victim assistance authority
and funds at District, State and national levels and suggests method
of computing compensation on the basis of “percentage points of
disability”."** Madhva Menon’s paradigm of Victim Compensation
Fund presupposes sources from governmental grants, court fee, col-
lection of fines on conviction, donation from public (with income tax
exemption), cess on pleadings, punitive damages, bail bond forfeitures
and wages earned by prison labour. He suggests for constituting
Compensation Board for its management with diverse representation
and links with Legal Services Authorities. Compensating the victims
of serious crimes, exclusion of victims who have criminal record or
who suppress facts and its liberal administration to benefit children
have been suggested.
Justice V.S. Malimath Committee observed, “Victim compensa-
tion is a State obligation in all serious crimes, whether the offender
is approached or not, convicted or acquitted” and recommended
for enhancement of fine under IPC by fifty times and for passing
of a comprehensive law on victim compensation with creation of a
Victim Compensation Fund to be administered by the Legal Services
Authority. It was suggested that the proposed law should spell out the
"! K.I. Vibhute, “Justice to Victims of Crimes: Emerging Trends and Legislative
Models in India” in K.I. Vibhute, op. cit., 370 at p. 387.
N.R. Madhava Menon, “Victim Compensation Law and Criminal Justice: A Plea
for victim orientation in criminal justice” in K.I. Vibhute, op. cit., 362 at
p. 365.
Justice to victims of crimes 857
“
scale of compensation in different offences; point out the categories of
offences in which it shall not be awarded; and the conditions subject
to which compensation shall be awarded. Fines, funds generated by
criminal justice system and public contribution were expected to be
substantial source.
18.5.5 Victim's right to participation in criminal proceeding

The present law has no adequate focus on victim’s effective participa-
tion in trial and appeal. Justice Malimath Committee has looked to the
constructive role of the victim in helping the prosecution's pursuit of
truth and in the objective determination on withdrawal or continu-
ance of the case in addition to getting interim relief in the matter of
his suffering. It observed, “...it is clear that if the criminal proceedings
have to be fair to both the parties and if the Court were to be properly
assisted in its search for truth, the law has to recognise the right of
victim’s participation in investigation, prosecution and trial.”
The Committee recommended for change in the law so as to pro-
vide for victim’s right to implead as a party to the criminal proceeding
where the offence is punishable with imprisonment for seven years’
or more; to be represented by an advocate of his choice, and in case
of financial inability to be represented by a lawyer at state’s cost; and
to prefer appeal against any adverse order like acquittal, inadequate
punishment or punishment for lesser offence. It also recommended
for permission to the approved voluntary organisations to implead in
court proceedings. Extension of medical and psychiatric help, interim
compensation and protection against secondary victimisation in addi-
tion to extending of legal services to the victim are also recommended
by the Committee.
The Committee suggested for legal recognition of victim’s right to
participate in criminal trial, which shall inter alia include:
(a) to produce evidence, oral or documentary, with leave of
the Court and/or to seek directions for production of such
evidence;
(b) to ask questions to the witnesses or to suggest to the court
questions which may be put to the witnesses;
(c) to know the status of investigation and to move the court to
issue directions for further investigation on certain matters
to a supervisory officer to ensure effective and proper inves-
tigation to assist in the search for truth.
(d) to be heard in respect of the grant or cancellation of bail;
(ce) to be heard whenever Prosecution seeks to withdraw and to
offer to continue the prosecution.
ale << SoeeanAaaae ee TOI / EERE IPERS SATS
(f) to advance arguments after the Prosecution has submitted
arguments; and
(g) to participate in negotiations leading to settlement of com-
poundable offences.
The concept of justice to victims is to be looked from a larger perspec-
tive of crime control function of the state. Malimath Committee Report
has a comprehensive scheme for tightening criminal liability by ton-
ing down the standards of benefit of doubt, by modifying the adver-
sarial system of adjudication, and by enhancing the prosecution’s and
court’s competence by training and competitive recruitment.
18.5.6 From purely adversarial system to accusatorial-inquisitorial

system
The present criminal justice system does not link the courts with inves-
tigative function because of its inclination for conforming to adversar-
ial system. Burden of the prosecution to establish guilt beyond doubt,
presumption of innocence of the accused, lack of opportunity for third
party like victim to interfere or participate in the judicial process and
total detachment of the court from investigative process are the fea-
tures of adversarial system that have contributed towards lesser con-
viction rate. But in the continent where investigation is supervised by
Judicial Magistrate the rate of conviction is very high. The Malimath
Committee, while convinced about protection of the rights of accused,
because of the need for correlation between investigative and adjudica-
tive wings, has recommended for strengthening the present system by
incorporating some features of inquisitorial system. This includes the
duty of the court to search for truth; to assign a pro-active role to the
Judges; to give directions to the investigating officers and protective
agencies in the matter of investigation; and to have rendering evidence
with the objective of seeking the truth and rendering justice to victims.
Sections 311, 255 and 482 of the Criminal Procedure Code need neces-
sary modifications in this regard. In the light of Best Bakery prosecu-
tion experiences the need for change may be appreciated.’3 The Apex
Court has observed in Zahira Sheikh (Best Bakery) case:'*4
“l
.. in a criminal case the fate of the proceedings cannot always be
left entirely in the hands of the parties, crimes being public wrongs in
breach and violation of public rights and duties, which affect the whole
community as a community and harmful to the society in general. The
The case involved perjury made by a witness owing to pressure exerted by

some leaders in a case of mass killing in communal riot in Gujarat. For a discussion
see, Sairam Bhat, “Perjury: Under-estimated reason for failure of the justice delivery
system in India” (2006) 2 Kant Law Journal 73.
'* Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158: 2004 SCC (Cri) 999.
Public Interest
Litigation 859
e e ee eer
ete
concept of fair trial entails familiar triangulation of interests of the
accused, the victim and the society and it is the community that acts
through the State and prosecuting agencies. Interests of society are not
to be treated completely with disdain and as persona non grata. Courts
have always been considered to have an overriding duty to maintain
public confidence in the administration of justice-often referred to as
the duty to vindicate and uphold the ‘majesty of the law’. Due admin-
istration of justice has always been viewed as a continuous process not
confined to determination of the particular case, protecting its ability to
function as a court of law in the future as in the case before it”.
In the context of frequent occurrence of acts of terrorism resulting in
killing of numerous innocent persons, remodeling of investigative
and trial system is required. The Terrorist and Disruptive Activities
(Prevention) Act, 1987 and Prevention of Terrorist Act, 2002 gave
extraordinary powers to the law enforcing authority and provided
lesser safeguards to the accused persons. These temporary laws were
not continued in view of the objections based on human rights argu-
ments. In the United States and United Kingdom, the tightening of the
law and treating the terrorists as combatants, had salutary effect of
suppressing terrorist elements.’ By considering terrorism per se as
crime against humanity and by balancing between human rights and
rule of law criminal justice system can be strengthened to uphold rule
law.'”°
18.6 Public Interest Litigation as a tool of social transformation

A discussion on the phenomenon of Public Interest Litigation (PIL) is,
in fact, an actual demonstration of law-society interaction itself. Being
a judicially invented device, it is not only a tool of judicial activism but
also instrument of social transformation. Its genesis, growth, strategies,
refined techniques, ramification on substantial law and overall impact
upon the justice delivery function and society have provided ample
evidences about its potentiality for social transformation. Looking to
the types of beneficiaries of PIL and the benefit conferred, and kinds
of grievances redressed, there would be no doubt about its enormous
social contribution. All the social functions of law’” are given seri-
ous attention and intensive application. The whole development is
innovative and fascinating because of the immense participative spirit
Rule
25 Prakash Singh, “Terrorism and the Rule of Law” in N.R. Madhava Menon,
at pp. 147-167.
of Law in a Free Society (Oxford University Press, New Delhi 2008)
26 id, at p. 173.
able and control of
17 Viz., protection, empowerment and facilitating of the vulner
abuse by the strong.
Reforms in the Justice Delive and Law
ry System, ModernisationROS
860 ie cnc it nach t an SES S
ig
released to involve the public in the cause of upholding public good
and of the consequences emerging from the same. — ree
Litigation is essentially a model of conflict. It is a fight for justice
within the legal framework, and also by using the interstices that law
leaves for creative interpretation. But the fight ought to be only on level
playing field. When the aggrieved is weak, empowering of that party
puts the scale on even plane. Whatever is required for carrying the
conflict to its logical end will have to be supplied for its successful pros-
ecution. Introduction of these factors into public law litigation needed
specific changes. Its scope for participative action and inquisitorial
approach may appear as a heresy against Anglo-Saxon heritage. But
it is peripheral revival of the traditional method of adjudication with
simple, cheap and prompt procedure. An effort to balance between
change and continuity in response to the shortcomings of modernisa-
tion can be found in this sphere also.
18.6.1 Genesis and growth of PIL in the social milieu

The factors that enabled the birth and growth of PIL are several:
Firstly, judicial activism initiated in Kesavananda’ in order to uphold
basic features of the Constitution even against efforts by Parliament
to nullify them unfolded the judicial ability to innovate new public
law remedies and abandon obstructive procedural rules. Progressive
interpretation of the constitutional provisions contributed to this task.
It is an idea born out of rigorous adherence to constitutionalism, and
its strength consists in continued commitment to it. The shift in focus
from property to liberty, welfare and democracy as reflected in the
Kesavananda was representative of the changed judicial philosophy."
Their involvement in legal aid movement gave them an exposure to
social realities and spurred them to be sympathetic to the aggrieved.
Entry of new judges like V.R. Krishna Iyer and P.N. Bhagwati, JJ., who
had radical thoughts about remedies, eased the PIL movement in the
beginning. The judicial shock and anger against human right viola-
tions, environmental pollution and abuse of power converted the zeal
for justice to the poor into an enduring mechanism. Because of the
ongoing violations and grievances the need is not reduced. Social
acceptance and media support emboldened the judiciary to continue
the veriture. Comparatively, the other two wings of government were
lagging behind as reflected in failure to enact progressive laws includ-
ing those protecting women and children. PIL became a handy tool to
fill the gap temporarily, allowing the other wings to follow up.
128
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1463.
' S.P. Sathe, Judicial Activism (Oxford University Press, New Delhi).
Public Interest Litigation
Sekai ents neinnsse_ peantly eared, ee. bie icant, athe ahaaReiaEs Seen eat861
Secondly, PIL was product of social reaction of the people embit-
tered by the experiences of emergency excesses, repressions, gross
violations of human rights and environmental pollution highlighted
by the press and agitated by voluntary organisations or Social Action
Groups.’ The failure of the Anglo-Saxon system to provide protec-
tion against these made the judiciary to search for more dependable
mechanism. There was also effort to overcome the image of subdued
judiciary.’*" According to V.R. Krishna lyer, “It needs no dialectical
materialist to conclude that the social dimensions of jurisprudence
when it makes a quantum jump from dying, imperial order to a liv-
ing democratic order must undergo a people-oriented radicalisation."*
The news about custodial violence, bonded labour, illegal mining, sale
of children in the guise of international adoption and unhygienic pro-
tective homes motivated the public spirited persons and organisations
to take up the matter for remedies.’3> Public participation for restora-
tion of constitutional values is a crucial development that gave legiti-
macy and respect to the PIL cause. In brief, there was democratisation
of judicial process.
Thirdly, flexibility in the language of Articles 32 and 226, the recog-
nition of right to legal aid as a component of fair procedure and manda-
tory duty to enforce welfare legislation gave enough support to build
up the PIL tool initially. A careful use of the tool without antagonis-
ing the legislature or administration had avoided possible obstruction
130 Upendra Baxi, “Taking Suffering Seriously: Social Action Litigation in the
Supreme Court of India” in Rajeev Dhavan (Ed_), Judges and the Judicial Power (N.M.
Tripathi, Bombay 1985) at pp. 289, 294-6; Bhaskar Textile Mills Ltd. v. Jharsuguda
Municipality, (1984) 2 SCC 25: AIR 1984 SC 583 at p. 802: AIR 1997 SC 2218; Labourers,
Salal Hydro Project v. State of J&K, (1983) 2 SCC 181: 1983 SCC (L&S) 289; People’s Union
for Democratic Rights v. Union of India, (1982) 3 SCC 235: 1982 SCC (L&S) 275; Consumer
Education & Research Centre v. Union of India, (1995) 3 SCC 42: AIR 1995 SC 922; Banwasi
Seva Ashram v. State of U.P., (1986) 4 SCC 753: AIR 1987 SC 374; Samatha v. State of A.P,,
(1997) 8 SCC 191; Nagarahole Budakattu Hakku Sthapna Samithi v. State of Karnataka, AIR
1997 Kant 288; Narmada Bachao Andolan v. Union of India, (1999) 8 SCC 308: AIR 1999 SC
3345 at p. 242. Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294; People’s
Union for Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC 399.
131 Paramanand Singh, “Protection of Human Rights through Public Interest
Litigation in India” (2000) 42 JILI 263 at p. 264.
82 V.R. Krishna lyer, “Towards an Indian Jurisprudence of Social Action and Public
ty Press, New
Interest Litigation” in Indra Deva (Ed.), Sociology of Law (Oxford Universi
social action
Delhi 2005) at pp. 292, 294. India was waiting for judicial activist and
litigation.
v. State of M.P.,
133° Khatri (ID) v. State of Bihar, (1981) 1 SCC 627, Neeraja Chaudhary 8
Samatha v. State of A.P., (1997)
(1984) 3 SCC 243: 1984 SCC (L&S) 471: AIR 1984 SC 1099;
2 SCC 244: AIR 1984 SC 469.
SCC 191; Lakshmi Kant Pandey v. Union of India, (1984)
rn Law House, Kolkata 2004) Ch. 7,
134 See, P. Ishwara Bhat, Fundamental Rights (Easte
S.P. Sathe, op. cit., at p. 197.
er
SNE i te ROT NE
em-
to the process of its growth." Elimination of some of the probl
to
atic practices like allowing a judge to entertain a letter addressed
a-
him as writ petition had also welcome impact upon the social estim
tion about PIL. The approach of High Courts to entertain PIL gave a
broader base and forum for grievance redressing.’”
Fourthly, PIL gained social sanction and stimulus because of its
consistent and continuous use to get remedy against environmental
pollution and violation of rights of workers, women and children for
more than three decades.3* The early cases on grievances of work-
ers, women, children and prisoners filled public confidence on PIL
whereas later cases on environmental pollution gave a permanent
place to it in the writ procedure.’ In brief, it has withstood the test of
time and has become part of the regular public law litigation. It has
proved to be sustainable because of intelligent use. As observed by
M.N. Venkatachaliah, J. in Sheela Barse."*°
“The compulsion for the judicial innovation of the technique of a pub-
lic interest action is the constitutional promise of a social and economic
transformation to usher—in an egalitarian social order and a welfare-
State. Effective solutions to the problems peculiar to this transforma-
tion are not available in the traditional judicial system. The proceedings
35 In People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235: 1982
SCC (L&S) 275 P.N. Bhagwati, J. observed, “Public interest litigation, as we conceive
it is essentially a cooperative or collaborative effort on the part of the petitioner, the
State or public authority and th. court to secure observance of the constitutional or
legal rights, benefits and privileges conferred upon the vulnerable sections of the
community and to reach social justice to them. The State or public authority against
whom public interest litigation is brought should be as much interested in ensuring
basic human rights, constitutional as well as legal, to those who are in a socially
and economically disadvantaged position, as the petitioner who brings the public
interest litigation before the court. The State or public authority which is arrayed as a
respondent in public interest litigation should in fact, welcome it as it would give it an
opportunity to right a wrong or to redress an injustice done to the poor and weaker
sections of the community whose welfare is and must be the prime concern of the
State or the public authority.
136 See, P.M. Bakshi, Public Interest Litigations (2nd Edn., Ashoka Law House, New
Delhi) Sudipt Mazumdar v. State of M.P., (1983) 2 SCC 258.
‘7 Lawyers Initiative v. State of Punjab, AIR 1996 P&H 1; Niyamavedi v. State of Kerala,
AIR 1993 Ker 262; Nagarahole Budakattu Hakku Sthapna Samithi v. State of Karnataka, AIR
aoe Kant 288; Bombay Environmental Action Group v. State of Maharashtra, AIR 1991 Bom
"8 MP. Jain, “The Supreme Court and Fundamental Rights” in S.K. Verma and
Kusum (Ed.) Fifty Years of the Supreme Court of India (ILI and Oxford University Press,
New Delhi 2000) at pp. 1, 79. See also, C.K. Thakker and M.C. Thakker (Eds.), V.G.
Ramachandran's Law of Writs , Vol. I (6th Edn., Eastern Book Co., Lucknow 2006) at
p. 971.
'° People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235: 1982 SCC
(L&S) 275; Bandhua Mukti Morcha v. Union ofIndia, (1984) 3 SCC 161: AIR 1984 SC 802.
40 Sheela Barse v. Union of India, (1988) 4 SCC 226: AIR 1988 SC 2211.
Public Interest Litigation 863
So ESTE 2s 610) 25 SR aha a
in a public interest litigation are, therefore, intended to vindicate and
effectuate the public interest by prevention of violation of the rights,
constitutional or statutory, of sizeable segments of the society, which
owing to poverty, ignorance, social and economic disadvantages can-
not themselves assert—and quite often not even aware of—those rights.
The technique of public interest litigation serves to provide an effective
remedy to enforce these group-rights and interests.”
18.6.2 Nature and objectives of PIL

About the characteristics of PIL, it is observed by P.N. Bhagwati, J., one
of the pioneering judges of PIL:
“... Where a person or class of persons to whom legal injury is caused
or legal wrong is done, is by the reason of poverty, disability or socially
or economically disadvantaged position, not able to approach the Court
of judicial redress, any member of the public acting bona fide ... may
move the Court for relief under Article 32 ... so that the fundamental
right may become meaningful not only for the rich and the well-to-do
who have the means to approach the Court but also for the large masses
of the people who are living a life of want and destitution and who are
by reason of lack of awareness, assertiveness and resources unable to
seek judicial redress”."""
V.R. Krishna lyer, J. emphasised the social dimension of PIL in Fertiliser
Kamgar Union case, “Law, as I conceive it, is a social auditor and this
audit function can be put into action only when some one with real
public interest ignites the jurisdiction. We cannot be scared by the fear
that all and sundry will be litigation-happy and waste their time and
money and the time of the court through false and frivolous cases. Ina
society where freedoms suffer from atrophy and activism is essential
for participative public justice, some risks have to be taken and more
opportunities opened for the public minded citizen to rely on the legal
process and not be repelled from it by narrow pendantry now sur-
rounding locus standi.”"# R.N. Misra, J. focused on the empowerment
dimension of PIL in Forward Construction Co. case, stating that PIL is
intended to “vindicate public interest which demands that violation
of constitutional or legal rights of large number of people, who are
poor, ignorant, or socially and economically in disadvantaged position
should not go unnoticed or unredressed for that would be destructive
of rule of law.”
141 Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161: AIR 1984 SC 802 at
India, 1981 Supp SCC 87:
p. 811. Similar observation was made in S.P. Gupta v. Union of
AIR 1982 SC 149 at p. 210.
12 Fertilizer Corpn. Kamgar Union v. Union of India, (1981) 1 SCC 568: AIR 1981 SC
344.
1986
143 Forward Construction Co. v. Prabhat Mandal (Regd.), (1986) 1 SCC 100: AIR
eR
18.6.3. Procedural innovations
The procedural innovations in PIL have been unprecedented and have

great significance for social transformation function. First, and fore-
most, liberalisation of locus standi rule™+ was instrumental in democ-
ratisation of access to justice. While poverty, illiteracy, lack of fight-
ing spirit, delay, and difficulty of getting necessary evidences deter
the common man from approaching the court for remedies, collective
action has shown the way to countervail these disadvantages. Writing
letters to the court could also provide access to justice in some cas-
es.45 This development attracted the public spirited persons and social
action groups to invoke court’s jurisdiction. However, abuse of liberal-
isation of locus standi is checked by excluding meddlesome interlopers,
persons with ulterior interest or colluders from invoking PIL.“
Secondly, the traditional approach of declining the jurisdiction on
grounds of pre-maturity and laches has been diluted in PIL cases
where the grievance is substantial.” This has benefited those who
had no know-how and resources for invoking the judicial process, and
thus enlarged the scope for public participation. Court’s suo motu cog-
nisance of human rights violations in suitable circumstances is another
development reminiscent of inquisitorial model.
Thirdly, Courts do not allow withdrawal of PIL by the parties as
in ordinary civil suits. Declining to permit withdrawal of PIL, M.N.
Venkatachalaiah, J. observed in Sheela Barse, “The dispute is not com-
parable to one between private parties with the result there is no rec-
ognition of the status of a dominus-litis for any individual or group of
individuals to determine the course or destination of the proceedings,
except to the extent recognised and permitted by the Court. The ‘rights’
of those who bring the action on behalf of the others must necessarily
be subordinate to the ‘interests’ of those for whose benefit the action
eo Ir
a This rule had allowed only the aggrieved persons to redress their grievance
by filing petition and not allowed others to move the court on their behalf. Jasbhai
Motibhai Desai v. Roshan Kumar, (1976) 1 SCC 671: AIR 1976 SC 578.
“Veena Sethi v. State of Bihar, (1982) 2 SCC 583: 1982 SCC (Cri) 511; State of H.P. v.
Parent ofa Student of Medical College, (1985) 3 SCC 169: AIR 1985 SC 2021; Sunil Batra
(ID
v. Delhi Admn., (1980) 3 SCC 488: AIR 1980 SC 1579; Mohd. Aslam v. Union of India, (2003)
4SCC 1.
"6 S.P. Gupta v. Union of India, 1981 Supp SCC 87: AIR 1982 SC 149; S.P. Anand v.
H.D.
Deve Gowda, (1996) 6 SCC 734: AIR 1997 SC 272; Chhetriya Pradushan Mukti
Sangharsh
Samiti v. State of U.P., (1990) 4 SCC 449: AIR 1990 SC 2060.
'” Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664: AIR 2001
SC 3751;
Kashinath G. Jalmi (Dr.) v. Speaker, (1993) 2 SCC 703.
‘8 Re, Death of 25 Chained Inmates in Asylum Fire in T.N. v. Union of India,
(2002) 3 SCC
31: AIR 2002 SC 979; State of Gujarat v. Hon'ble High Court of Gujarat,
AIR 1998 SC 3164, s if Gujarat, (1998) (1998)7S
7 SCC 392: :
Public“esate
Fo Interest
cons Litigatio n 865
Sa Sie NE eS ll ata
is brought...Again, the relief to be granted looks to the future and is,
generally, corrective rather than compensatory which, sometimes, it
also is.” The change from adversarial to polycentric litigation has
this logical consequence of approaching the issue with cooperative
and collaborative spirit.
Fourthly, the new techniques of fact finding by employing com-
missions, socio-legal bodies, expert committees, advisory committees,
and court officers have features of inquisitorial system and in fact add
to the efficacy of PIL.%° Appointment of amicus curiae and use of Legal
Services Authority have also contributed to PIL functioning. Further,
legal aid is made available to the PIL petitioners.’*
Fifthly, devising of new forms of reliefs is a striking feature of PIL.
Awarding of interim compensation, extension of medical assistance,
rehabilitation, and issuing of guidelines and directions have been
increasingly employed unlike ordinary litigation.%> As viewed by
M.N. Venkatachalaiah, J., the court is not merely a passive, disinter-
ested umpire or onlooker, but has a more dynamic and positive role
with the responsibility for the organisation of the proceedings, mould-
ing of the relief and—this is important—also supervising the imple-
mentation thereof."
Sixthly, monitoring of State institutions such as prisons, women’s
protective homes, mental asylums, borstal schools for their proper
upkeep and good governance is another special feature of PIL pro-
ceedings.> In the matter of affirmative-action the willing coopera-
tion of the authorities is explored. Even so, unduly harsh and coer-
cive measures against the States and the authorities might themselves
become counterproductive.
On the whole, procedural inventions have broad-based the factor of
access to justice. This has made the legal rights meaningful (ubi jus ubi
149 Sheela Barse v. Union of India, (1988) 4 SCC 226: AIR 1988 SC 2211 at p. 2215.
150 Rural Litigation and Entitlement Kendra v. State of U.P., 1987 Supp SCC 487, Veena
Sethi v. State of Bihar, (1982) 2 SCC 583: 1982 SCC (Cri) 511; M.C. Mehta (Calcutta Tanneries
Matter) v. Union of India, (1997) 2 SCC 411.
151 TN. Godavarman Thirumulkpad v. Union of India, (1997) 3 SCG'312;
182 As observed by P.N. Bhagwati, J. in People’s Union for Democratic Rights v. Union
legal aid
of India, (1982) 3 SCC 235: AIR 1982 SC 1473, PIL is a strategic arm of the
movement.
53 People’s Union for Democratic Rights v. Police Commr., Delhi, (1989) 4 SCC 730; Khatri
(I) v. State of Bihar, (1981) 1 SCC 623; Khatri (ID v. State of Bihar, (1983) 2 SCC 266.
154 Sheela Barse v. Union of India, (1988) 4 SCC 226: AIR 1988 SC 2211 at p. 2215.
of India, (1986) 3
155 Munna v. State of U.P., (1982) 1 SCC 545; Sheela Barse (II) v. Union
Baxi (II) v. State of
SCC 632; Upendra Baxi (1) v. State of U.P., (1983) 2 SCC 308; Upendra
SC 191.
U.P, (1986) 4 SCC 106: 1986 SCC (Cri) 381: AIR 1987
i IS li A AR ll ORR T EE HIRES INS. CER IESE NL SS esas
remedium). As S.P. Sathe viewed, processual activism ran complemen-
tary to substantive activism.’
18.6.4 Contribution to substantive law
Another chief merit of PIL consists in sensitisation of substantive

law through activist interpretation of constitutional provisions and
legislative measures, and evolution of new norms by judicial law-
making. In order to match the remedial requirements, the contents of
positive rights were also heightened by deriving inherent rights from
the named rights in the light of Directive Principles of State Policy,
Preamble, Fundamental Duties and the International Human Rights
Instruments. Very important rights like right to food, health, environ-
ment, education, and livelihood got judicial recognition in PIL cases.
In spurring the administration into appropriate actions in providing
access to such basic necessaries of life, the evolution of these rights has
vital significance. In evolving each positive right, all its components
were also given proper attention. For example, right to health was said
to include right to have essential life saving drugs in abundance and at
reasonable price, access to medical assistance in case of accidents, suit-
able facilities in hospitals and mental asylums and prompt treatment
in state hospitals.” Creative use of the clause in Article 142 towards
rendering complete justice in individual cases makes them effective.
The application of inter-re!ationship** among Fundamental Rights
and between Part III and Part IV of the Constitution had a laudable
result of giving extended meaning to many human rights and welfare
principles."
Right to equality became instrumental in protection of rights of
workers against unreasonable closures and discriminations in pay-
ment of pensions.’® Reservation questions were fought on PIL plat-
form which have ultimately ended up in balanced statement of law.’
Right against exploitation was given serious attention in view of its
violation by private bodies. “Forced labour”, according to the Court
included situations of payment of wages lesser than that fixed under
'6 S.P. Sathe, op. cit.
'7 Vincent Panikurlangara v. Union of India, (1987) 2 SCC 165: AIR 1987 SC 990;
Parmanand Katara v. Union of India, (1989) 4 SCC 286: AIR 1989 SC 2039; Paschim Banga
Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37: AIR 1996 SC 2426.
88 Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409: AIR 1998 SC 1895;
Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584: AIR 1992 SC 248.
'® P. Ishwara Bhat, Fundamental Rights, (2004), at pp. 548-53.
'° Workmen v. Rohtas Industries, 1995 Supp (4) SCC 5: AIR 1996 SC 467: D.S. Nakara v.
Union of India, (1983) 1 SCC 305.
*! Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1;
Ashoka Kumar Thakur v. Union of
India, (2008) 6 SCC 1.
the Minimum Wages Act, 1948. The task of identifying and releasing
persons from bonded labour was connected to rehabilitation process
in order to give full remedy.’? The issue of eradication of child labour
or sexual abuse of child was connected to the aspect of compulsory
primary education with a holistic perception. It is in the PIL cases
on environmental pollution that detailed principles, dimensions and
techniques of sustainable development were laid down and applied.
Recognition of collective rights is one of the vital contributions to the
substantive law. It is logically convincing that collective action gives
rise to collective rights. Evolution of such rights pertaining to workers,
dalits, and victims of environmental pollution not only reinforced indi-
vidual rights but enabled proper balancing amidst various competing
interests. Rejection of locus standi in NTWU as a rule belonging to the
laissez faire world, in fact, was a precursor for protection of collective
right of workers to participate in management.’ In ABSKS case VR.
Krishna lyer, J. observed, “Our current processual jurisprudence is not
of individualistic Anglo-Indian mould. It is broad-based and people-
oriented, and envisions access to justice through ‘class actions’, ‘pub-
lic interest litigation’, and ‘representative proceedings’. Indeed, little
Indians in large numbers seeking remedies in courts through collec-
tive proceedings, instead of being driven to an expensive plurality of
litigations, is an affirmation of participative justice in our democracy."
The group right approach had its own impact on the outcome of the
case. Collective right approach is reflected in inter-generation equity
principle and public trust doctrine in PIL cases on environmental pol-
lution. A shift to collective rights approach has filled the gap in Part III
which is otherwise essentially studded with individual rights.
Judicial law-making in the form of directions is another distinct con-
tribution to substitute the vacuum. Evolution of new law through judge-
made direction where law is “silent” is an extraordinary development.
Looking to the legislative inertia in spite of international guidelines
and commitment, and gross misuse of the situation resulting in viola-
tion of basic rights of women and children, the development in Laxmi
Kant Pandey and Vishaka needs to be appreciated from social transfor-
mation perspective.“ The former is a case relating to trans-national
162 People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235: AIR 1982 SC
1473; Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.
163 M.C. Mehta v. State of T.N., (1996) 6 SCC 756: 1997 SCC (L&S) 49; Gaurav Jain v.
Union ofIndia, (1997) 8 SCC 114.
164 National Textile Workers Union v. P.R. Ramakrishna, (1983) 1 SCC 228: AIR 1983 SC
75.
165 Akhil Bharatiya Soshit Karamchari Sangh v. Union of India, (1981) 1 SCC 246.
Vishaka
16 Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244: AIR 1984 SC 469;
v. State of Rajasthan, (1997) 6 SCC 241.
SS SS
a a ee
i te a
adoption of children, where in the absence of legal measure and safe-

guards, exploitations used to take place and interests of children were
not protected. A set of guidelines was temporarily laid down by the
Supreme Court to govern the procedure about international adoption
on the basis of international human rights norms and Draft Bill intro-
duced in Parliament. In the latter case, the Court laid down guidelines
to prohibit and deal with sexual harassment of women at workplace
in the light of human rights values. Guidelines in both the cases were
ad hoc, and were to be in operation until the enactment of new law
by Parliament or state legislature. Relating to telephone tapping also
some ad hoc, guidelines are laid down in a case."” Generally, Courts
abstain from such extraordinary measure of making “laws” through
guidelines. Even after issuing of such guidelines, legislatures have
been slow in responding to the problem and substituting the guide-
lines by regular law. Whatever may be the pace of legislative follow up,
the judicial task of introduction of new legal norms is extraordinary.
But it is very much justified as a measure of filling the gap to avert a
greater harm to the vulnerable sections. Crystallising the legal norms
by judicial reasoning in the light of human rights values and exposing
them to legislative action is a good contribution to the substantive law.
Another development is that interpretation of legislation in PIL cases
is influenced more by human right and welfare principles.
On the whole, PIL has greatly enriched the substantive law with
clear orientation towards d>sirable social transformation.
18.6.5 Social benefits and future prospects

Given the input, insight and energy for social transformation, PIL has,
no doubt, conferred great benefits to the society. Suppose we imagine
about the fate of numerous PIL beneficiaries—bonded labourers, pris-
oners, inmates of mental asylums, child labour, women, dalits, etc.—in
the absence of PIL movement but exposed to the vicissitudes of rigid
traditional procedures or about the legal system without liberal inter-
pretation of Fundamental Rights, and compare the picture so emerg-
ing with the things actually achieved, the difference between the two,
and the gains or gifts of PIL would be clear to us.
PIL has strengthened the rule of law and people’s confidence in the
rule of law-based remedies.'* As observed by the Apex Court in Veena
'*” People’s Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301: AIR
1997 SC 568.
‘8 In the circumstances of violation of law relating to minimum wages and
other welfare measures, inordinate delay in trial, blinding of prisoners, lock-up
deaths, corruptions, failure of policing and investigative functioning, violation
s of
environmental rights and such other cases of executive lawlessness and inactions
, the
Publictunel
SS Interest
ictaLitigati on lh ei 869
l palin ieee lal dle, ef tad
Sethi, “What meaning has the rule of law if the poor are allowed to lan-
guish in jails without the slightest justification as if they are the casta-
ways of the society? The rule of law does not exist merely for those who
have the means to fight for their rights and very often for perpetuation
of the status quo which protects and preserves their dominance and
permits them to exploit large sections of the community but it exists
also for the poor and the downtrodden, the ignorant and the illiterate
who constitute the large bulk of humanity in this country.”
The system of participatory justice as developed through PIL has
added content and vitality to constitutional democracy.” PIL has been
conceived essentially as a cooperative or collaborative effort on the
part of the state or public authority and the Court to secure observance
of the constitutional and legal rights, benefits and privileges conferred
upon the vulnerable sections of the community and to reach social
justice to them. Participative justice gives much scope for evolving
consensus in the formulation of policy-based rights. In PILs on envi-
ronmental protection, such consensus has helped in trying to resolve
development v. environment debate.
The very forging of an instrument, strong and dependable, for car-
rying on struggle against unsocial conduct, administrative arbitrari-
ness or callousness and gross abuses arising from law’s silence has
great contribution to make as vindicated in empirical evidence of huge
body of case law on the subject. “We the People” have been empowered
through this weapon to bring the holders of reins of power-political,
administrative or economic—into the legal dock, make them answer-
able for their action or omission, and mend their way if they are wrong.
In a vast and developing country like India with huge population and
features of multiculturalism and orientation for social welfare, devel-
oping this socially acceptable tool has enormous potentiality. The fact
that the device is indigenous and product of social experience is a
heart-warming and confidence—filling development.
PIL scrutiny and remedies are greatly influenced by rule of law norms.
16 Veena Sethi v. State of Bihar, , (1982) 2 SCC 583: 1982 SCC (Cri) 511.
1” The egalitarian and democratic ethos in this approach can be seen in the
observation of Brennan, J. which was approvingly cited in M.H. Hoskot v. State of
Maharashtra, (1978) 3 SCC 544: AIR 1978 SC 1548, “When only the rich can enjoy the law
as doubtful luxury, and the poor who need it most, cannot have it because its expenses
because of
put it beyond their reach, the threat to democracy is not imaginary but real,
so alieetave that
democracy’s very life depends upon making the machinery of justice
every citizen shall believe in and benefit by its impartiality and fairness”.
Justice Delivery System,
Reforms in thee and Law
Modernisation e
870 er e e
e
writ-
The position of PIL as a mixed blessing is highlighted by some
on
ers'”' and even by judicial brethren.” The major criticism is based
is-
theory of separation of powers. Usurping of the powers of admin
trative policy making and asserting of the law-making powers have
been the objects of complaint. In fact, as exposed through above dis-
cussion, these are not the major features in the day-to-day working of
PIL, but things resorted to exceptionally for saving from gross injus-
tice. Further, such deviation is with adequate reverence to the other
wings of government and without depriving their powers within the
constitutional framework. Judicial self restraint in entry into the gras-
ing yard of policy is a general approach, as can be found in Narmada
Bachao Andolan and BALCO cases. In BALCO BN. Kirpal, J. observed:
“It will seen that whenever the Court has interfered and given direc-
tions while entertaining PIL it has mainly been where there’ has been
an element of violations of Article 21 or of human rights or where the
litigation has been initiated for the benefit of the poor and the under-
privileged who are unable to come to Court due to some disadvantage.
In those cases also it is the legal rights which are secured by the Courts.
We may, however, add that Public Interest Litigation was not meant to
be a weapon to challenge the financial or economic decisions which are
taken by the Government in exercise of their administrative power. No
doubt a person personally aggrieved by any such decision, which he
regards as illegal, can impugn the same in a court of law, but, a Public
Interest Litigation at the behest of a stranger ought not to be entertained.
Such a litigation cannot pr se be on behalf of the poor and the down-
trodden, unless the Court is satisfied that there has been violation of
Article 21 and the persons adversely affected are unable to approach
the Court. The decision to disinvest and the implementation thereof is
purely an administrative decision relating to the economic policy of the
State and challenge to the same at the instance of busy-body cannot fall
within the parameters of Public Interest Litigation.”"7
A note of caution has been expressed by the learned judge in Narmada
Bachao Andolan, “Public Interest Litigation (PIL) was an innovation
essentially to safeguard and protect the human rights of those peo-
ple who were unable to protect themselves. With the passage of time
the PIL jurisdiction has been ballooning so as to encompass within its
"1 Soli J. Sorabji, Judicial Activism: Boon or Bane? (Nani Palkhivala Memorial Trust,
Mumbai 2008) at p. 30; Mahabalehwar N. Morje, “Public Interest Litigation” in Indra
Deva (Ed.), Sociology of Law (Oxford University Press, New Delhi 2005) 310 points out
the positive contribution of PIL by greatly emphasising on compliance with the duty
towards the neglected.
'2 AS Anand, “Judicial review-Judicial Activism—Need for Action” (2000) 42 JILI
149 at p. 156.
'° BALCO Employees’ Union (Regd.) v. Union of India, (2002) 2 SCC 333: AIR 2002 SC
350.
Alternative Dispute Resolution (ADR) System
2) 871
SSS /RISA Misia bleD oN, ineSap pale th S ,
ambit subjects such as probity in public life, granting of largess in the
form of licences, protecting environment and the like. But the balloon
should not be inflated so much that it bursts. Public Interest Litigation
should not be allowed to degenerate to becoming Publicity Interest
Litigation or Private Inquisitiveness Litigation.’”"74
While there has been appreciation about the astonishing reach and
results of PIL, concern has been expressed about its unwieldy character
that may dilute its efficacy. Paramanand Singh views, “...an overuse of
PIL for every public interest matter might dilute the original commit-
ment to use this remedy only on behalf of the oppressed classes.”"5
There are also problems of inordinate delay in PIL cases, non-imple-
mentation of judicial directions.’
It is viewed by A.S. Anand CJI:
“Care has to be taken to see that PIL essentially remains Public Inter-
est Litigation and does not become either Political Interest Litigation or
Personal Interest Litigation or Publicity Interest Litigation or used for
persecution. If that happens it would be unfortunate. PIL would loose
its legitimacy and the credibility of the courts would suffer. Finding the
delicate balance between ensuring justice in the society around us and
yet maintaining institutional legitimacy is a continuing challenge for
the higher judiciary."
18.7 Alternative Dispute Resolution (ADR) System

Legal disputes range from intra-familial matters to international issues.
Disputes on family relationship, inter-personal and property matters,
industrial, corporate and commercial subjects, non-profit enterprises,
consumers’ rights, inter-state water sharing or boundary, state-subject
relation and international relations pertaining to trade and non-trade
matters are various types of disputes that occur in great numbers in
the day-to-day world, and seek fair solution. Traditional method of
settling the disputes through negotiation, conciliation, mediation and
arbitration had been relegated to background owing to the emergence
of litigation as the dominant and modernist method of dispute resolu-
tion. Dissatisfied with the disadvantages of this method, the trend of
searching solution in traditionalism has emerged, in recent times once
again reflecting a post-modernist approach.
AIR 2000 SC 3751

174 Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664:
para 256.
|
5 Paramanand Singh, op. cit, at p. 283.
New Delhi, 1985) at p. 31.
76 SK. Agrawala, Public Interest Litigation in India (ILI,
eed for Action” (2000) 42 JILI
7 AS. Anand, “Judicial review-Judicial Activism—N
149 at p. 156; see also, M.P. Jain op. cit at p. 86.
872 Reforms in the Justice Delive nisation and Law
ry System; ModerIL
iM jie anni, Sa IA eA EL SORES
18.7.1 The concept, background and the means
Alternative Dispute Resolution (ADR) is defined as a range of proce-
dures that serve as alternatives to litigation through the courts for the
resolution of disputes, generally involving the intercession and assist-
ance of a neutral and impartial third party.” Although arbitration
involves adjudicatory procedure, it is also regarded as ADR as it takes
place outside the court.
The broad features of ADR are: it is voluntary, informal, faster,
cheaper, confidential and promoting substantial justice as compared
to the litigation model. It is carried through the help of neutral third
parties. It supplements, but does not supplant the court-based resolu-
tion. It enables smooth restoration of good relation between parties in
conflict after the dispute resolution as the settlement is done in amica-
ble atmosphere rather than in bitterness of struggle. As Y.K. Sabharwal,
J. observes, “Most ADR processes are based on an integrative approach.
They are more cooperative and less competitive than adversarial court
based methods like litigation."”? The increased and widespread use of
ADR in the domain of civil law has the perspectives of social transfor-
mation from the angle of efficacy of remedies and of substantive law
also, as will be discussed.
The fact that ADR is not new can be perceived by looking to some
of the ancient practices prevalent in ancient Greek, Roman and ancient
Indian systems. According to Aristotle, “It is equitable to be patient
under wrong; to be williny that a difference shall be settled by discus-
sion rather than by force; to agree to arbitration rather than to go to
Court—for the umpire in an arbitration looks to equity, whereas the
juryman sees only the law. Indeed arbitration was devised to the end
that equity might have full sway.’"®In the Roman legal system, there
was recognition of arbitration awards and their method of enforce-
ment. At the bottom of ancient Indian legal system there was kula,
the gathering or family council, to decide the disputes. According to
Smriti Chandrika it was an assembly of impartial persons belonging
to the family or caste of the litigants, functioning as panchayatdars or
panchayat mandali to decide disputes among those belonging to the
same family or caste."*' But those involving violence or crime did not
fall into their jurisdiction. Appeals could lie from kula to shreni or to
8 Brown and Marriott, Alternative Dispute Resolution: Principles and Practices cited
‘in R.D. Rajan, A Primer on Alternative Dispute Resolution (ADR), (New Edition, Bharathi
Law Publications, Tirunelveli 2005) at p. 44.
Justice Y.K. Sabharwal, “Alternative Dispute Resolution” (January 2005) 6 Nyaya
Deep at pp. 48, 50.
Cited by R.D. Rajan, op. cit., at p. 12.
81 Smriti Chéndrika, at pp. 40-46.
eas Seis Sa eee We 2S GR a il 873
King’s court. The practice of panchayat system continued even during
the medieval period."
The establishment of common law system of adjudication during the
colonial period heralded the era of adversarial system. Except in small
area like labour law, this system continued even after the Independence.
Because of the time consumed over procedural wrangles, technicalities
of law and inability of the poor litigants to engage lawyers, the adver-
sarial system proved to be cumbersome to the Indian society which
is primarily an agrarian society without the sophisticated ability to
understand the technicalities and strategies of court system. Backlog of
25 million cases and delay in disposal stretching in some cases beyond
20 years gave a dismal picture. Delay gave rise to other evils including
escalation of cost. It became proverbial that the winner in civil suit
was loser and the loser was dead. All these factors began to lower peo-
ple’s faith in the court system. The constitutional commitment to social
and economic welfare through law got threatened because of proce-
dural injustice. The Law Commission in its 127th Report pointed out
the roadblocks in the access to justice: high cost, geographical distance
and inordinate delay. The 150th and 163rd Reports made recommenda-
tions for extensive amendment to Civil Procedure Code to rely on ADR
in order to overcome the problem.
Commenting on the policy and working of the Arbitration Act, 1940,
D.A. Desai, J. in Guru Nanak Foundation observed, “Interminable, time
consuming, complex and expensive court procedures impelled jurists
to search for an alternative forum, less formal, more effective and
speedy for resolution of disputes avoiding procedural claptrap and
this led them to Arbitration Act, 1940. However, the way in which the
proceedings under the Act are conducted and without an exception
challenged in Courts, has made lawyers laugh and legal philosophers
weep. Experience shows and law reports bear ample testimony that
the proceedings under the Act have become highly technical accom-
panied by unending prolixity, at every stage providing a legal trap to
the unwary.”
The Arbitration Act of 1940 provided for domestic arbitration and
no provision was there to deal with the foreign awards. The increas-
ing growth of global trade and the delay in disposal of cases in Courts
under the normal system in several countries made it imperative to
have the perception of an Alternative Dispute Resolution System,
more particularly, in the matter of commercial disputes. In view of
182 M. Rama Jois, Constitutional and Legal History of India, Vol. II (N.M. Tripathi,
13 Gyru Nanak Foundation v. Rattan Singh and Sons, (1981) 4 SCC 634: AIR 1981 SC
2075.
874 Reforms in the Justice Delive ry System, Modernisation and Law
et eh i nN IEAIT A RED ENTS TES SPS
global trend in favour of a speedy resolution of commercial disputes,
the United Nations Commission on International Trade Law in 1985
adopted the UNCITRAL Model Law of International Commercial
Arbitration. The legal systems of a number of countries incorporated
that Model. The Arbitration and Conciliation Act of 1996 (ACA) has
been enacted in India with this purpose. As viewed by the Apex Court
in Konkan Railway, “The 1996 Act limits intervention of Court with an
arbitral process to the minimum and it is certainly not the legislative
intent that each and every order passed by an authority under the
Act would be a subject-matter of judicial scrutiny of a court of law.
Under the new law the grounds on which an award of an arbitrator
could be challenged before the Court have been severely cut down
and such challenge is now permitted on the basis of invalidity of the
agreement, want of jurisdiction on the part of the arbitrator or want
of proper notice to a party of the appointment of the arbitrator or of
arbitral proceedings. The powers of the arbitrator have been ampli-
fied by insertion of specific provisions of several matters. Obstructive
tactics adopted by the parties in arbitration proceedings are sought to
be thwarted by an express provision inasmuch as if a party knowingly
keeps silent and then suddenly raises a procedural objection will not
be allowed to do so.”"*4
The major objectives of the ACA, 1996 are: (i) to comprehensively
cover both international and domestic commercial arbitration and con-
ciliation; (ii) to provide fer arbitration procedure which is fair, effec-
tive and capable of meeting the needs of the specific arbitration; (iii) to
mandate the Arbitration tribunal to give reasons and not to transgress
limits of jurisdiction; (iv) to minimise the court’s intervention and to
provide for enforcement of the award through court decree; and (v) to
encourage ADR and to enforce foreign awards. With the development
of amendment to CPC, these policies have become crucial.
18.7.2. Amendment to Civil Procedure Code

Far-reaching changes have been brought to Civil Procedure Code
through the Amendment Acts of 1999 and 2002 by prescribing strict
time frame for various stages of civil proceeding, by reducing the
opportunities for appeal, by enabling submission of evidences on affi-
davit and dispensing the chief examination by enabling recording of
evidences by commission etc. An important development in this effort
is the emphasis given to Alternative Dispute Resolution (ADR) or set-
tlement of disputes outside the court. The newly inserted Section 89
"4 Konkan Rly. Corpn. Ltd. v. Mehul Construction Co., (2000) 7 SCC 201: AIR 2000 SC
2821 at p. 2124.
Alternasb
tive Dispute
otsaoihResolut
Fah suataliat dabacthisiion (ADR)
ins Gochcca System
inhi eae a lad ele 875
provides, “Where it appears to the court that there exist elements of
a settlement which may be acceptable to the parties, the court shall
formulate the terms of settlement and give them tothe parties for their
observations and after receiving the observations of the parties, the
court may reformulate the terms of a possible settlement and refer the
same for (a) arbitration, (b) conciliation, (c) judicial settlement includ-
ing settlement through Lok Adalat, or (@) Mediation.” This compels the
Court to put a serious effort in the direction of ADR. Further, the court
has role in enforcement of the award or settlement also. As stated in
the Objects and Reasons for the amendment, “It is only after the par-
ties fail to get their disputes settled through any one of the alternate
dispute resolution methods that the suit shall proceed further in the
court in which it was filed.” The purpose is to assist the litigants to
avail cheap, quick and effective method of dispute resolution instead
of undergoing elaborate process of court trial.
The Law Commission in its 163rd Report had suggested for refer-
ence of every suit to a Board of Conciliators consisting of local retired
judges and lawyers of high integrity selected by the Presiding Officer
to examine the feasibility of conciliation and give its opinion within a —
time frame. However, the suggestion has not been incorporated. The
legislation such as the Arbitration and Conciliation Act, 1996 and the
Legal Services Authority Act, 1987 govern these methods of dispute
settlement. In fact, the policy is not entirely new because voluntary
settlement of disputes by parties and withdrawal of cases after pass-
ing the settlement decree has been provided for in the original CPC,
1906 also. The Court passing a compromise decree must satisfy that
the compromise is lawful.
The implication of Section 89 was examined by the Supreme Court
in Salem Advocate Bar Assn. v. Union of India'*> by observing, “It is quite
obvious that the reason why Section 89 has been inserted is to try and
see that all the cases which are filed in Court need not necessarily
be decided by the Court itself. Keeping in mind the law’s delays and
the limited number of Judges which are available, it has now become
imperative that resort should be had to Alternative Dispute Resolution
Mechanism with a view to bring an end to litigation between the par-
ties at an early date.” The Court constituted a Committee to frame
appropriate rules for giving effect to Section 89, and later gave effect
to them."*
185 (2003) 1 SCC 49: AIR 2003 SC 189.

1% Salem Advocate Bar Assn. v. Union of India, (2005) 6 SCC 344.
876 Reforms in the Justice Delivery System, Modern isation and Law
i i: ee ia tg a Ta BEARER NS EEE
18.7.3 Arbitration
Arbitration means the process of having a civil dispute settled by a

person or group not involved in the dispute. It involves reference to
the decision of one or more persons, of some matter/s in difference
between the parties. According to Black’s Law Dictionary, “arbitration
is an arrangement for taking and abiding by the judgment ofselected
persons in some disputed matter, instead of carrying to established tri-
bunals of justice, and is intended to avoid the formalities, the delay, the
expense and vexation of ordinary litigation.” Arbitration may or may
not be administered by permanent arbitration tribunal [Section 2())].
The nature of its function is adjudication, and hence all features like
impartial hearing, rational appreciation of evidence and application
of relevant law to relevant facts are envisaged in arbitration. Disputes
occurring in the course of trade, business, services partnerships, par-
tition or succession often involve technical issues like valuation or
estimation by experts. Economic interests demand swift disposal of
cases without publicity and damage to reputation, and without com-
plex and time consuming procedures and formalities. In international
trade, the practice of commercial arbitration is the principal method of
resolving disputes between trading parties. International Chamber of
Commerce streamlined the European method of commercial arbitra-
tion. United Nations Commission on International Trade Law adopted
UNCITRAL Model Law or International Commercial Arbitration in
1985, which laid down a legal farm work for fair, amicable and efficient
settlement of disputes.
Indian tradition of arbitration is traceable to Panchayat system
and bodies like shreni, kula and puga. The Bengal Regulations by the
British during the 18th century recognised the arbitration awards
other than those brought through corruption. The Civil Procedure
Code of 1859, 1877, 1882 and 1908 recognised the arbitration proceed-
ings and gave effect to their awards. The Arbitration Act, 1899, appli-
cable in Presidency towns, extended the arbitration proceeding to
cases not pending before court of law. The Arbitration (Protocol and
Convention) Act, 1937 aimed at giving effect to foreign arbitral awards.
The Arbitration Act, 1940 dealt with (i) arbitration without intervention
of a court (ii) arbitration with intervention of court where no suit is
pending and (ii) arbitration in suits. Courts had the power of extend-
ing the time for making award and removing the dilatory or miscon-
ducting arbitrator. All awards were to be followed up by a judgment
and decree before being enforced. Delay, duplicity of proceedings,
costs and uncertainty made the mechanism, a weak instrument to col-
lapse under the downpour of litigation. The Law Commission, under
the Chairmanship of Justice H.R. Khanna recommended in 1978 for
Fe SATIRE ARERR ARIES cet ARLE rl
avoiding the reasons for delay by introducing deeming clause about
consent to arbitration, non-termination owing to death of parties, limi-
tation on extension of the period of arbitration and for enforcement of
the award. The Supreme Court pointed out the need for making the
Law of arbitration simple, less technical and more responsible to the
realities of situation."*”
In order to upgrade the Arbitration Act, 1940 and for conforming
to UNCITRAL Model, in 1996, the Arbitration and Conciliation Act
was passed. It comprehensively covers international commercial arbi-
tration"® and conciliation as also domestic arbitration and concilia-
tion. It compels the Arbitral Tribunal to remain within the limits of
its jurisdiction and to give reasons for its arbitral award. It minimises
the supervisory role of courts in the arbitral process and provides that
every arbitral award is enforced in the same manner as if it were a
decree of the court. It makes provision for an arbitral procedure which
is fair, efficient and capable of meeting the needs of specific arbitra-
tion. There are elaborate provisions about rule against bias and right
to be heard and remedies like setting aside of arbitral award in case
of partisan decisions. Flexibility of procedure, lesser formalities and
speedy resolution of disputes are the features of arbitration. The Act.
of 1996 provides for enforcement of foreign arbitral awards made in
a country where one of the two International conventions relating to
foreign Arbitral awards to which India is a party, applies.
Existence of duly signed arbitration agreement or arbitration clause
in any agreement is a pre-requisite for commencement of arbitration
proceeding (Section 7). Occurrence of dispute necessitates appoint-
ment of arbitrator. The parties are free to agree on a procedure to
appoint the arbitrator or arbitrators. If three arbitrators are to be
appointed, unless otherwise laid down by the agreement, each party
shall appoint one arbitrator each and the two appointed arbitrators
shall appoint the third arbitrator, who shall act as the presiding arbi-
trator. In case of failure to appoint any arbitrator or sole arbitrator, the
appointment shall be made, upon request by the parties, by the Chief
Justice or any person or institution designated by him. The power of
187 Food Corpn. of India v. Joginderpal Mohinderpal, (1989) 2 SCC 347: AIR 1989 SC
1263.
86 “2(f) “international commercial arbitration” means an arbitration relating to
disputes arising out of legal relationships, whether contractual or not, considered as
commercial under the law in force in India and where at least one of the parties 1s:
(i) an individual who is a national of, or habitually resident in, any country other
than India; or
or
(ii) |abody corporate which is incorporated in any country other than India;
associat ion or a body of individu als whose central
(ii) a company or an
or
management and control is exercised in any country other than India;
(iv) the Government of a foreign country .”
878 Reforms in the Justice Deliver y System, Modernisation and Law
aa hain i AAS SORE AIA DEEL RIED IS SEE SAS
Chief Justice in making appointment was regarded in Konkan Railway
as administrative power and the failure could be remedied by issu-
ing writ of mandamus." This approach was overruled in SBP and Co.
case’ and the appointment power was regarded as judicial, and the
remedy could be through certiorari.’ The appointed arbitrator shall
disclose the circumstances that cloud impartiality. Only in cases of
doubts about impartiality and lack of adequate qualifications, arbitra-
tor’s appointment may be challenged. Failure or impossibility on the
part of arbitrator to act or his withdrawal or agreement of parties for
termination will result in termination of the arbitrator (Sections 14 and
15). The arbitration tribunal has the power of deciding its own juris-
diction including the ruling on any objection with respect to valid-
ity of agreement. Time limit is prescribed for raising objection against
jurisdiction.
A cardinal principle relating to arbitration proceeding is that the
parties shall be treated with equality and each party shall be given a
full opportunity to present his case (Section 18). The place of agreement
shall be decided on the basis of agreement (Section 20). The principle
that the arbitral tribunal shall not be bound by the Civil Procedure
Code and the Indian Evidence Act and that the parties are free to agree
on the arbitral procedure, provides for adequate flexibility, facilitating
quick disposal of cases.
The intervention of courts in the matter of arbitration proceeding is
confined to narrow area. ,sccording to Section 34(2) An arbitral award
may be set aside by the Court only if (a) the party making the appli-
cation furnishes proof that (i) a party was under some incapacity; or
(ii) the arbitration agreement is not valid under the law; (iii) the party
making the application was not given proper notice of the appointment
of an arbitrator or of the arbitral proceedings or was otherwise unable
to present his case; or (iv) the arbitral award deals with a dispute not
contemplated by or not falling within the terms of the submission to
arbitration, or it contains decisions on matters beyond the scope of the
submission to arbitration: (v) the composition of the arbitral tribunal
or the arbitral procedure was not in accordance with the agreement
of the parties, or, (b) the Court finds that (i) the subject-matter of the
dispute is not capable of settlement by arbitration under the law for
"Konkan Rly. Corpn. Ltd. v. Mehul Constructions Co., (2000) 7 SCC 201: AIR 2000
SC 2821.
SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618. For a discussion see, Justice A.K.
Sikri, “Trends and Developments in Arbitration in India and Region” (October 2007)
7 Nyaya Deep at pp. 49, 58.
! For an approach that this is a commendable one see Chidananda Reddy S.
Patil, “Nature of Chief Justice’s power of appointing arbitrators: An analysis” (2008) 3
Bangalore Law Journal at p. 277.
the time being in force, or (ii) the arbitral award is in conflict with the
public policy of India. The interpretation of “public policy” has been
problematic issue. In the ONGC case’ the Supreme Court viewed that
public policy connoted some matter which concerned public good and
the public interest. The award could be set aside if it was opposed to
fundamental policy of Indian law; or the interest of India; or justice or
morality, or in addition, if it is patently illegal. Illegality must go to the
root of the matter and if the illegality is of trivial nature it cannot be
held that award is against the public policy. Award could also be set
aside if it is so unfair and unreasonable that it shocks the conscience
of the Court. Two criticisms leveled against this interpretation can be
looked into: first, that because of the failure to structurise the concept
it is likely to continue as unruly horse opening the floodgate of chal-
lenges and defeat the efficacy of the Act;'3 and second, that evolution
of state-based multiple standards of public policy will produce unnec-
essary pluralism and confusion making the UNCITRAL model dif-
ficult for implementation."
One important development owing to the 1996 Act is that the arbi-
tral award shall be final and binding upon the parties (Section 35) and
shall be enforced under CPC in the same manner as if it were a decree
of the court (Section 36). This avoids dilatory litigation occurring in
court’s review and judgment on arbitration and incorporation of the
award into decree.
From the perspective of social transformation, the 1996 Act is a land-
mark development as it has built a strong mechanism of ADR. Now it
is common practice that in metropolitan and commercial cities large
number of cases having big economic stake or involving technical or
accounts issue is referred to the arbitrators. Commercial agreements
generally include arbitration clause.
18.7.4 Conciliation
Conciliation is settlement of disputes without litigation. It is a process

set-
of persuading parties, without imposition, to reach an amicable
tlement through the participation by an impartial conciliator. Unlike
arbitration, it involves no judicial process. The Arbitration and
of
Conciliation Act, 1996 governs conciliation of disputes arising out
5 SCC 705: AIR 2003 SC
12 Oil & Natural Gas Corpn. Ltd. v. Saw Pipes Ltd., (2003) | ss
2629.
ry Slope of ‘Public Policy
193 Chidanand Reddy S. Patil, “Arbitral Award on Slippe
(2006) 2 Kant Law Journal 62 at pp. 70-71.
“Trends and Developments
14 Redfern and Martin Hunter cited by Justice AK Sikri, 49 at pp. 58-59.
7 Nyaya Deep
in Arbitration in India and Region” (October 2007)
15 RD. Rajan, op. cit., at pp. 228-29.
880 Reforms in the Justice Delive n and Law
ry System, ModernisatioEAI
5 Se, el A TE A aA Ee SETI “
legal relationship, whether contractual or not and to all proceedings

relating thereto. The parties may agree for sole conciliator or appoint
one each or have a third conciliator (Section 64). The law requires con-
ciliators to be independent and impartial and to be guided by princi-
ples of objectivity, fairness and justice (Section 67). The conciliator and
the parties are bound to keep confidential, all matters relating to the
conciliation proceedings. But conciliator should disclose the substance
of the information about any fact relating to the dispute from a party
to the other party (Section 70). Cooperation of parties with the concili-
ator is insisted.
The role of the conciliator/s is to assist the parties to reach an ami-
cable settlement of the dispute. The procedure of conciliation com-
mences with the acceptance of the proposal made by the other party
inviting to conciliate and identifying the issues. After the appoint-
ment of the conciliator by the parties, the conciliator may request each
party to submit brief written statement. He may invite the parties to
meet him and has discretion to conduct the proceedings according to
the expediency of the situation (Section 69). He may take administra-
tive assistance with the consent of parties (Section 68). He may make
proposal for settlement at any stage of conciliation proceeding. The
proposal might be reformulated in the light of observation of parties
(Section 73). If the parties reach an agreement the drafting of the settle-
ment agreement will be done. Such settlement has the same status and
effect as an arbitral award {Section 74). The conciliators are prohibited
from acting as arbitrator, counsel representative or witness (Section
80). The conciliation proceeding comes to an end with the settlement
of dispute or conciliator’s declaration that no further effort of concilia-
tion was justified (Section 76). Conciliator’s shuttling act of diplomacy,
negotiation and reducing of differences between the parties contrib-
utes to resolution of disputes.
Under the Industrial Disputes Act, 1948, resolution of disputes
through Conciliation Officer and Conciliation Board is contemplated.
The Conciliation Officer has the duty of investigating the dispute and
all the connected matters and may do all such things as he thinks fit for
the purpose of inducing the parties to come to a fair and amicable set-
tlement of disputes (Section 12). He shall send report to the appropriate
government within fourteen days. Although he has no power of mak-
ing final order” his function makes good contribution in the direction
of restoring industrial peace. National Commission on Labour, 1969
has suggested for conferring more powers to the Conciliation Officer.
The Board of Conciliation has also the duty of investigating the dis-
pute and all the connected matters and may do all such things as it
% Security Paper Mill v. R.S. Sharma, (1986) 2 SCC 151: (1986) 1 LLJ 432 (SC).
Ss ae en RRR inDa picnics eee aE et 881
thinks fit for the purpose of inducing the parties to come to a fair and
amicable settlement of disputes whenever the dispute is referred to it
by the appropriate government (Section 13). The report given by the
board may be given effect by the Government.
18.7.5 Mediation
Mediation is a method of bringing conciliation between parties to the
dispute. Mediator is the neutral person who does not render a decision
on an evaluation. But he facilitates in reaching an acceptable agree-
ment. Mediation is the least adversarial approach to conflict resolution
and encourages the parties to communicate directly. Although there
is interchangeable use of the words “mediation” and “conciliation”,
there are differences between the two. Conciliation restores relation-
ship where mediation may not. Mediation is bit more formal than that
of conciliation. It is a consensual dispute resolution process in which a
specially trained neutral third party helps disputants to identify issues,
clarify perceptions and explore options for a mutually acceptable out-
come. In general, mediators do not offer their own opinions regarding
likely court outcomes or the merits of the case. Instead, mediators offer
the opportunity to expand the settlement discussion beyond the legal
issues in dispute and focus on developing creative solutions, which
emphasise the parties’ practical concerns.
The main characteristics of mediation are: it involves non-binding
procedure controlled by the parties; parties are encouraged to evolve
solution; mediator’s impartial and creative role is expected; proce-
dure’s confidentiality is to be maintained; it is a process that empowers
the poor by providing cheap, effective and quick remedy and accom-
modates give and take; it is voluntary, self-responsible and satisfying;
the element of consensus helps better enforcement. The procedure
for mediation is laid down in UNCITRAL conciliation rules, WIPO
Mediation rules and Jagannadha Rao Committee Draft Mediation
Rules, 2003.” Mediation restores the shattered faith and human rela-
tions, upholds harmony as a social value and removes impediments to
access to justice.’ Its social engineering dimension consists in max-
imisation of choices available for acceptable solutions arising from
mutual empathy and understanding. Justice S.B. Sinha lists the
advantages of mediation: completion of mediation in matters of hours
197 R.D. Rajan op. cit., at pp. 274, 287.

1%8 D.K. Sampath, Mediation (National Law School of India University, Bangalore
1991) at pp. 47-49. “Mediation never allows an individual to build up his success by
humbling his adversary...When each individual's thinking is anchored in cooperation,
society’s psychological orientation towards harmony is ensured. |
199 NER. Madhava Menon, “Foreword” to D.K. Sampath, op. cit, at p. 1x.
ee ~~
me
through a series of one to three conferences; avoidance of cumberso
of
evidentiary procedure; less cost; and parties’ control over outcome
evi-
the case.° In contrast, the disadvantages are lack of formalised
dentiary rules of due process and lack of appeal.
18.7.6 Lok Adalats
“Lok Adalat” connotes people’s court and is practically known as peo-

ple’s festival of justice because of informal method of dispute settle-
ment. It is defined as a forum where voluntary effort aimed at bringing
about settlement of disputes between the parties is made through con-
ciliatory and pervasive efforts. It has the social goal of ending quarrels,
restoring family peace and providing succour to destitutes. According
to Justice K. Ramaswamy, “Resolving disputes through Lok Adalat
not only minimises litigation expenditure, it saves valuable time of
the parties and their witnesses, and also facilitates inexpensive and
prompt remedy appropriately to the satisfaction of both the parties."
Legal Services Authorities Act, 1987 provides for organisation of
Lok Adalat by the State Authority, District Authority or Supreme
Court/High Court Legal Services Committee or Taluk Legal Services
Committee at such intervals and places within its jurisdiction (Section
19). It consists of serving or retired judicial officers and other persons
of the area having requisite experience and qualification. The types
of cases at Lok Adalat include mutation of land cases, compounda-
ble criminal offences, encroachment on forest lands, family disputes,
land acquisition disputes, motor accident claims and cases which are
not sub judice. Parties to pending disputes or potential disputes may
agree or apply to the court for referring the dispute to Lok Adalat
[Section 20(1)]. Lok Adalat shall act with utmost expedition to.arrive at
a compromise or settlement between the parties and shall be guided
by the principles of justice, equity, fair play and other legal principles
[Section 20(4)]. In case of failure to arrive at settlement or compromise,
the dispute will be returned to the court [Section 20(5)]. The award of
the Lok Adalat shall be deemed to be a decree of civil court (Section 21).
Lok Adalat has powers of civil court for the purpose of commanding
and enforcing attendance of any witness and examining on oath, for
discovery and production of document etc. (Section 22).
In practice, very commendable service is done by the Lok Adalats by
settlement of large number of disputes. It has assumed the character of
movement in many states attracting NGOs and academic institutions.
200
S.B. Sinha, “Mediation: Constituents, Process and Merit” (October 2006) 7 Nyaya
Deep 31 at pp. 36-37.
*! Legal Aid Newsletter December 1995.
As on September 2007 the number of Lok Adalats held was 6.05 lakhs,
cases settled 228.47 lakhs and compensation distributed Rs 6703 crores.
The details of persons benefited: 13.4 lakh SCs, 43 lakh STs, 8.2 lakh
BCs, 9.46 lakh women, 1.55 lakh children, 1.9 lakh persons in custody
and 51.5 lakh general; and total 90.4 lakh people.?”
In Centre for Legal Research v. State of Kerala*3, emphasising the
importance of social participation in legal aid movement the Supreme
Court observed, “It is now acknowledged throughout the country that
the legal aid programme which is needed for the purpose of reaching
social justice to the people cannot afford to remain confined to the tra-
ditional or litigation oriented legal-aid programme but it must, taking
into account the socio-economic conditions prevailing in the country,
adopt a more dynamic posture and take within its sweep what we may
call Aid Schemes or the State Legal Aid and Advice Board, but we may
make it clear that such voluntary organisation or social action group
shall not be under the control or direction or supervision of the State
Government or the State Legal Aid and Advice Board because we take
the view that voluntary organisations and social action groups operat-
ing these programmes should be totally free from any Governmental
Control.”
18.7.7 Consumer grievance redressal forum

For resolving the grievances of consumers, under the Consumer
Protection Act, 1986, forums at District, State and National level are
constituted. Their jurisdiction extends to defect in goods and deficiency
in services. Although they perform adjudicative functions, because of
their composition and less formal procedures they are better oriented
towards speedy, cheap and effective disposal of cases. Deviation from
pure adversarial system can be clearly seen in their procedure.
18.7.8 Grama Nyayalaya

Participatory model of dispute resolution at the rural area was rec-
ommended by the Law Commission in its 114th Report in 1986 for
establishing strong foundation of judicial pyramid, keeping in mind
the nature of disputes in rural area which included disputes about pos-
session/ownership of property, boundary dispute, problems of cultiva-
bet-
tion, debts, marketing and petty family disputes. These could be
than
ter resolved by rural community’s collective participation rather
Grama
by a heap of procedural complexities. Grass root level courts,
tration of
Nyayalaya (GN), required grass root participation in adminis
22 Source: (October 2007) Nyaya Deep.
23 (1986) 2 SCC 706: AIR 1986 SC 2195.
884 Reforms in the Justice Delive ry System, Modernisation and Law
5c can a aan IGaA RN SAN SA AOE ENE SIS
justice according to law with an awareness of local interest and local
customs. Unmanageable backlog of cases, inordinate delay in disposal
of cases and exorbitant litigation costs called for traditionalist, cheap,
quick and effective method of dispute resolution. Synthesis of legal and
lay persons in the composition of three member local people's court
was planned by the Law Commission. Taking justice to the doors of
people required conducting of the court proceeding in the concerned
villages. The working paper prepared by the Law Commission was
responded diversely by various states. About the method of selection
of lay judges and jurisdiction of courts, opinions varied. The Central
Government drafted a Bill in 2005, which was reviewed by National
Advisory Council. NAC recommended for establishing of GN for
every 50,000 population; deletion of proposal to have two lay judges
on account of cumbersome procedure, delay, cost and fear of mistrust;
procedural improvements and reduction of costs. In 2007, the Grama
Nyayalaya Bill was framed in the light of NAC recommendations. After
deliberation in both Houses of Parliament the Grama Nyayalayas Act,
2008 was passed, and notified in January 2009. The broad features of
the Act are as follows:
1. It aimes to provide for the establishment of GN at the grass
root level for the purposes of providing access to justice to
the citizens at their doorsteps and to ensure that opportuni-
ties for securing justice are not denied to any citizen by rea-
son of social, economic or other disabilities and for matters
connected therewith or incidental thereto.
2. It extends to the whole of India except the State of Jammu
and Kashmir, the State of Nagaland, the State of Arunachal
Pradesh, the State of Sikkim and to the tribal areas.
3. For the purpose of exercising the jurisdiction and powers con-
ferred on a GN by this Act, the State Government, after con-
sultation with the High Court, may, by notification, establish
one or more GN for every Panchayat at intermediate level
or a group of contiguous Panchayats at intermediate level
in a district or where there is no Panchayat at intermediate
level in any State, for a group of contiguous Gram Panchay-
ats. The headquarter of Panchayat shall be that of GN.
4. A person shall not be qualified to be appointed as a Nyay-
adhikari unless he is eligible to be appointed as a Judicial
Magistrate of the First Class. While appointing a Nyaya-
dhikari, representation shall be given to the members of the
Scheduled Castes, the Scheduled Tribes, women and such
other classes or communities as may be specified by notifi-
cation, by the State Government from time to time.
ee Sc
5. The Nyayadhikari shall periodically visit the villages falling
under his jurisdiction and conduct trial or proceedings at
any place which he considers is in close proximity to the
place where the parties ordinarily reside or where the whole
or part of the cause of action had arisen. But when the GN
decides to hold mobile court outside its headquarters, it shall
give wide publicity as to the date and place where it proposes
to hold mobile court. The State Government shall extend all
facilities to the GN including the provision of vehicles for
holding mobile court.
6. Criminaljurisdiction of GN extends to all offences punishable
with imprisonment for a period lesser than two years’; theft,
receiving of stolen property, or assisting in concealment or
disposal of stolen property whose value is less than Rs 20,
000; insult intending to provoke breach of peace, criminal
intimidation; offences under Minimum Wages Act, Payment
of Wages Act, the Protection of Civil Rights Act, 1955; order
for maintenance of wives, children and parents under Chap-
ter IX of the Code of Criminal Procedure, 1973; the Bonded
Labour System (Abolition) Act, 1976; the Equal Remunera-
tion Act, 1976; the Protection of Women from Domestic Vio-
lence Act, 2005; and their abetments.
7. The civil jurisdiction of GN extends to (i) Civil Disputes: (a)
right to purchase of property; (b) use of common pasture; (c)
regulation and timing of taking water from irrigation chan-
nel. (ii) Property Disputes: (a) village and farmhouses (Posses-
sion); (b) water channels; (0) right to draw water from a well
or tubewell. (iii) Other Disputes: (a) claims under the Payment
of Wages Act, 1936; (b) claims under the Minimum Wages
Act, 1948 (11 of 1948); (c) money suits either arising from trade
transaction or money lending; (d) disputes arising out of the
partnership in cultivation of land; (¢) disputes as to the use
of forest produce by inhabitants of GP.
8. GNshallendeavour tose
disputes ttle
by concilia tion. Court
the
proceeding shall be in official language of the State other
than English. Plea-bargaining shall be allowed. Appeals can
lie where the dispute is not resolved by plea-bargaining or
mutual consent or when the fine or financial stake is not less
than Rs 1000. Indian Evidence Act is applicable to the GN
procedure. .
e to the
The main advantage of GN consists in the policy of justic
least cost to the
doorsteps of people, simple and quick procedure and
886 Reforms in the Justic e Delivery Syste m, Modernisat ion and Law
cl aie Rn: l
SARA LENS ii teil NESS RS
parties. It is hoped that GN will immensely help the people’s collective
interest in social harmony.
18.8 Conclusion
While human conflicts and legal disputes occur because of some

imbalance occurring somewhere, their resolution at minimum cost, in
terms of money and time, brings comforts to the parties. The course
and outcome of criminal justice system should also be fair by ensur-
ing that the prison system should adequately reflect human rights val-
ues. Litigation as a method of dispute resolution has become painful
because of the inordinate delay, complexity of procedure and exorbitant
cost. Instead of bipolar battle that it ensues, there is an alternative ave-
nue of participative justice through conciliation, mediation, arbitration
and Lok Adalat. The innovative scheme of plea-bargain has imbibed
these features in addition to contributing to speedy disposal of cases.
Victim compensation system has also been product of human right
consideration. Even the traditional method of constitutional litigation
is supplemented by uniquely Indian method of PIL. As an instrument
of social transformation, PIL’s contribution has been unique both to
substantive law and law of remedies. In all these spheres, it is the firm-
ness and width of human rights ideology and its concrete application
that ushered in the era of reform. Since social justice requires to be cen-
tre-staged in the justice delivery system also, it is logical that efforts
towards making administration of justice cheap, swift, effective, trans-
parent and participative become inevitable. The positive development
in both the civil and criminal justice systems in this regard has greatly
contributed to the competence of the legal system to deliver goods
of social reforms. The transformative role of human rights has a sig-
nificant social dimension. The concerted exercise of social energy for
redressing the grievances enhances the social competence and concern
for reforms. The sound thinking of the Mallimath Committee report
deserves serious consideration and immediate implementation so that
trend towards better justice delivery system may be actualised.
CHAPTER 19
ROLE OF DEMOCRACY, PANCHAYATI

RAJ AND NGOs IN SOCIAL
TRANSFORMATION THROUGH LAW
19.1 Introduction
A Highway to social revolution chosen in India at the anvil of

Constituent Assembly was parliamentary form of government at
both the central and state levels.’ It was ardently aspired to yoke the
legislative system to the constitutional objectives of creating suitable
legal environment, shaping the fiscal policies, controlling the admin-
istration and bringing planned social transformation. Good govern-
ance presupposes rule of good law; and this, in turn, requires good
performance by the Legislature. The Legislature is also a key institu-
tion in bringing appropriate changes to the Constitution to suit to the
requirements of changing times, and balance between continuity and
change. Social transformation involved in these processes envisages
altering of structured inequalities and power relations in society in
ways that reduce the weight of morally irrelevant circumstances such
as socio-economic status or class, gender, race, language, region or
religious orientation.? The Legislature’s competence for in-house man-
agement and for maintaining discipline of its members and decorum
of the house is also essential to enhance its functional ability and to
uphold its image as a trustworthy body. Being an important compo-
! For analysis of reasons to choose parliamentary model see, Granville Austin,

Indian Constitution: Cornerstone ofaNation (Oxford University Press, New Delhi).
2 This is partially modified version given by Roberto Gargarella in Roberto
Gargarella, Courts and Social Transformation in New Democracies: An Institutional Voice
for the Poor? (Ashgate, Hampshire 2006) at p. 2.
888 Role of Democracy, Panchayat Raj and NGOs
r e r
ratic
nent of republican system and working within a liberal democ
e these
Constitution, the Legislature has great responsibility to handl
and
tasks most satisfactorily and fulfil the constitutional objectives
:
people’s expectations.
Over the years, the decline in moral values, the deepening of cor-
ruption and power-mongering practices amidst the legislators have
painted the darker side of Legislature's profile. In mid-1970s, instead
of acting as vigilant forum for championing the cause of basic liber-
ties and welfare, and steer the nation rightly through the crisis, the
Legislature inflicted great injury to the national life of India by being
a party to imposition of unwarranted internal emergency. Regarding
protection of interests of women and children against various types
of exploitations, Legislature failed to enact laws even after Supreme
Court’s tentative guidelines to fill the gap? More recently, the MPs
Cash for Query scam and Local Area Development scams have
shaken the people’s confidence in the representative system. All these
have earned the epithet “legislative lawlessness”. But, brighter side
of the political development is that undoing of the mischief through
Legislature’s own efforts has been attempted. Further, the vast body of
laws on socio-economic reforms rules out the estimation that the insti-
tution has become redundant. On the other hand, important policies
of social transformation have been given legal form.
19.2 Democracy’s social dimension

As a system of collective decision making on the basis of people's
equal participation, democracy is logically linked to people’s welfare
and satisfaction of their needs. It believes in government in accordance
with the consent of the governed. It is globally accepted as a method
of good governance because of recognition of equal citizenship, meet-
ing of popular demands, upholding of pluralism, protection of basic
freedoms, promotion of rule of law and allowing of continuous soci-
etal renewal without massive upheaval» Democracy prioritises com-
> Vishaka v. Union of India, (1997) 6 SCC 241; Laxmi Kant Pandey v. Union of India,
(1987) 1 SCC 66: 1987 SCC (Cri) 33: AIR 1987 SC 232.
* Declaration of American War of Independence, 1776; according to Bertrand Russell,
“Democracy is intended to make men’s tenure of power temporary and dependent upon
popular approval. In so far as it achieves this, it prevents the worst abuse of power.”
Unpopular Essays at p. 182 cited by M.N. Rao, “Parameters of Indian Democracy and
Dissent” in D. Sundar Ram (Ed.), Indian Democracy: Prospects and Retrospects (Kanishka
Publishers, New Delhi 1995) at p. 137.
° David Beetham and Kevin Boyle, Democracy (National Book Trust of India and
UNESCO, New Delhi 1995) at pp. 3-5; H.R. Khanna, “Democracy—Its Weaknesses and
Strength” in Navin Chandra Joshi, Democracy and Human Values (Sterling Publishers,
Democracy’s social dimension 889
munity to individual, and endeavors to found society on ethics.° “It
is a constant striving to make life good to live, and to achieve social
scheme in which everyone is assured his due.”” It has instrumental
role for bringing just social order contemplated in the Constitution.’
Government’s competence and compulsion to function for the people
is greatly emphasised by the ideology of welfare state and is demand-
ing functional responsibility. The idea that it should be of the people
and by the people persuades for people’s participation and control’ Ina
constitutionally organised democracy, the governance shall be within
the parameters of constitutionalism. Indian Constitution’s specific
orientation to social transformation obligates the state to implement
Directive Principles of State Policy and to effectuate the Fundamental
Rights. This has made the responsible conduct of the Legislature a fac-
tor of great importance. A distinctive mark of democracy is that power
is made sensitive and responsible.” Irresponsible power is incompat-
ible with democracy.
Deliberative democracy uses the tools such as free and fair election,
competing political parties, and legislature for social choice of policies
and leaders." It gives legitimacy to political life, produces rules and
laws by converting the people’s will into binding policies, and acts as
agent of progress.’* Democracy significantly mediates between state
and society, and puts people’s interests ahead of passions.’? Hence, it
provides clues as to how and why state responses have emerged; it
illuminates a variety of social interests, some of which are effective
in keeping the state committed to the goals of social transformation
while others are ineffective in doing so." It should not shy away for
° Aristotle.
7 MV. Krishna Rao, Organised Democracy (H. Venkatramiah & Sons, Mysore 1952)
at p. 3.
® Art. 38(1); also see, Piloo Modi, Democracy Means Bread and Freedom (Abhinav
Publications, New Delhi 1979) at p. 15, democracy revolts against tyranny, desires
ion that
to share power and demands equal access to basic necessities; for a proposit
go hand in hand, see, A.R. Wadia,
freedom to develop and security to live should
Democracy and Society (Lalvani Publishing House, Bombay 1966) at p. 68.
® Abraham Lincoln’s famous Gettisburg speech.
n. 7 at p. 3.
Carver, Essays in Social Justice cited by MV. Krishna Rao, supra,
and Social Choice” in Jan Shapiro
!! David Miller, “Deliberative Democracy
and Casiano Hocker-Cordon (Ed.), Democracy’s Edges (Cambridge University Press,
;
Cambridge 1999) at p. 74.
politan Order?” in David
2 David Held, “Democracy: From City States to Cosmo
Univer sity Press, Stanford 1995) at p. 13.
Held (Ed.), Prospects for Democracy (Stanford of
, Tocquiville and the Problem
3 Alex de Tocquiville cited in Marvin Zetherbaum |
1967) at p. 189.
Democracy (Stanford University Press, Stanford
rd University Press, New Delhi
4 Niraja Gopal Jayal, Democracy and the State (Oxfo
2001) at p. 243.
mnnanm
a anmnmunen 017gs i . =
judicial enforcement of social rights as the people would be otherwise
affected by the outcome of threshold disagreement on such policies.
Democracy’s connection with multiculturalism and globalisation is
coming to the forefront in its functioning in modern times. A view for-
mulated in an international forum about democracy’s responsibility in
pluralist society can be considered, “Democracy in today’s changing
world means pluralism; identity and geography are no longer synony-
mous, and ‘majority rule’ must give way to power sharing in socie-
ties with multiplicity of ethnic, religious, racial and socio-economic
groups. Conflict resolution addresses the needs of pluralism—equal
rights, a fundamental principle of democracy””® Participative democ-
racy within the ethnic or linguistic group or unit is complementary to
this goal, which is eminently compatible with globalisation.” In the
context of social transformation in response to globalisation, participa-
tive democracy has both intrinsic and instrumental value. David Held
views that due to globalisation, the locus of effective political power
is shifted from nation to international community; that the idea of
self-determining community located within the boundaries of single
nation state has disappeared; and that criss-crossing of loyalties and
interests has deviated from the traditional understanding of democ-
racy.’® Although compulsions of market economy in global perspec-
tive have shifted the decision-making process in the matter of trade
and other activities to the international community, which is explicit
in changes that are compelled by TRIPS, TRIMS and GATS, the need
to filter them in the process of domestic absorption and to keep other
areas of human activity within the institution of democracy has been
increasingly felt. On the whole, social dimension of democracy calls
for dynamic role on the part of its central institution viz. Legislature,
for peaceful resolution of differences in the national life.79
'° Jeremy Waldron, Law and Disagreement (Clarendon Press, Oxford 1999) cited
and commented upon in Roberto Gargarella, “Theories of Democracy, the Judiciary
and Social Rights” in Roberto Gargarella, P. Domingo and T. Roux, Courts and
Social Transformation in New Democracies: An Institutional Voice for the Poor? (Ashgate,
Hampshire 2006) at pp. 13, 28.
© Steering Committee of the Second Assembly of World movement for Democracy—
Confronting the Challenges to democracy in 21st Century held at Brazil, 12-11-2000 to 15-11-
2000 cited by Sandeep Shastri, “Democracy as Global Entitlement: A Cross national
Analysis of Citizens Perception of Democracy” in D.D. Khanna and Gert W. Kuck
(Ed.), Conflict Resolution, Human Rights and Democracy (Shipra Publications, Delhi 2003)
at p. 100.
” Will Kymlicka, “Citizenship in an era of Globalisation: Commentary on Held” in
Ian Shapiro, supra, n. 11 at p. 120.
" David Held, “The transformation of political community: Rethinking in the
Context of Globalisation” in Ian Shapiro, supra, n. 11 at pp. 84, 103-04.
"Edmund Marshall, Parliament and the Public (Macmillan, London 1982) at p. 134.
Role of the legislature in social transformation 891
carci store eR AUER SEARS SN a eS
19.3. Role of the legislature in social transformation
19.3.1 Evolution of legislature as a forum for social transformation

Historically, legislatures in various parts of the world have acted as a
forum for spearheading stupendous social changes. The contributions
of British Parliament, the National Assembly of France and American
Congress in protecting the society and state from executive tyranny and
guaranteeing human rights and welfare have been enormous. In the
Commonwealth and Communist countries, and in African and Asian
countries, Legislature has donned the mantle of social transformation.
Colonial India witnessed busy law-making function of Central and
Provincial Legislatures. Codification of criminal and civil law system-
atised the legal system. Social transformation was aimed at by passing
legislation prohibiting the practice of sati, female infanticide and child
marriage; allowing widow remarriage; recognising Hindu women’s
right to property and Muslim women’s right to dissolve marriage; and
introducing labour welfare measures. Earliest efforts of modernisation
were made in this period. The principles of English common law and
statutes provided foundation for Indian statutes subject to adaptations
into Indian conditions.”°
Drafting of the Indian Constitution was the biggest task handled by
the Constituent Assembly, which was a legislative body reset into its
new role. Our Constitution, being a programmatic charter, requires
extensive laws to activate the constitutional goals. This is the third
stage of building the Constitution on the central principle of justice,
the former two being people’s consensus in original position and
the work of the Constitutional Hall to convert the consensus into the
Constitution.2" Since the Constitution is the heart and soul of the con-
temporary legal system, filling its gaps through subordinate level pol-
icy choices and effectuating its intention calls for Legislature's trans-
formation performance.
19.3.2 Safeguarding the essential constitutional features

Legally, the ultimate upholder of the Constitution is judiciary, by virtue
of the latter’s power of judicial review. But the responsibility imposed
upon Legislature to safeguard the constitutional values both in making
University Press,
2” MC. Setalvad, The Role of English Law in India (The Hebrew
(N.M. Tripathi, Bombay
Jerusalem 1966) at p. 36; M.C. Mehta, The Common Law in India
1970) at p. 123.
John Rawls, A Theory of
2 See, for analysis of four-stage making of a constitution
ism (1993) at pp. 174-76, MOA
Justice (1972) at pp. 215-30; John Rawls, Political Liberal l, London
to Jurisprudence (7th Edn., Sweet & Maxwel
Freeman, Lloyd’s Introduction
2001) at pp. 525-27, 577-81.
ee —e
law
constitutional amendments and laws is also clear from decisional
tuating
and constitutional provisions. Hence, safeguarding and effec
n-
the constitutional values and aspirations become the primary respo
sibilities of the Legislature also, just like executive has the responsi-
bility to act in accordance with the Constitution and ensure compli-
ance with every law. Judiciary’s role to supervise compliance with the
Constitution comes to play only subsequently when the legislative or
executive acts are contested. The presumption in favour constitution-
ality of legislation is born out of this understanding, and out of rever-
ence to the legislative will that emerged through democratic process. It
is a notable fact that Parliament has amended the Constitution about 93
times in a span of 60 years’, either necessitated by or in anticipation of
social changes. Striking a fair balance between continuity and change
is essential in adhering to the fundamental constitutional objectives in
handling the amending power.
19.3.3 Role in protection of human rights

There is a constitutional contemplation of legal regime providing for
consequences compatible with or facilitative to various fundamental
rights. Express prohibition upon the State from making laws in con-
travention of any provisions of Part III of the Constitution (Article 13)
reflects an abundant caution” against erosion of constitutionalism and
continuously reminds the legislature’s responsibility. Equal protection
of the laws ensures reasonableness of classification (Article 14); special
provisions for women and children [Article 15(3)] ask for legislative
intervention; law’s reasonable restrictions on expressional and other
freedoms aim to build up good citizenship by fettering bad self of man
(Article 19); and fairness of procedure established by law aims to pro-
tect life and personal liberty (Article 21). The preventive detention laws
under Article 22 are required to possess requisite safeguard measures.
General laws protecting public order, morality and health or those that
prevent or remedy the abuses of or obstruction to religious freedom
and educational rights support the concerned rights. These laws fill
the interstices of Fundamental Rights and support them with their dis-
tinct and detailed mechanism.
Apart from laws enhancing the content, scope or efficacy of
freedoms, laws are also contemplated to effectuate social justice
principles through detailed legal framework. It should be remem-
bered that Part III is also a source of social justice policies and pro-
grammes. Laws for eradication of evils like untouchability, traffic in
” Patanjali Sastri, J. in A.K. Gopalan v. State of Madras, AIR 1950 SC 27; also see, M.C.
Setalvad, The Common Law in India (N.M. Tripathi, Bombay 1970) at pp. 192-93.
human beings, bonded labour and child labour are specifically hinted.
Social reforms through law touching upon religious freedoms are also
referred to. The reformative interstices of Part III provisions are to be
filled by legislative norms. According to Justice PB. Gajendragadkar
legislative works aiming at social justice and welfare confer relevance
to legislature’s existence The extent to which exemption from the
operation of Part III shall be carved out through law in dealing with
military and para military forces or with situations of martial law is to
be determined by Parliament. An impressive output of legislation to
provide for these measures can be found generally, while the zeal for
reformative laws was more in 1985-86.** However, in matters relating
to protection of women against sexual harassment in workplace and
protection of children’s interests against exploitation in the context
of trans-national adoption, the tentative legal framework laid down
by judiciary® through guidelines in the judgment have not been con-
verted into legislative piece with or without modifications. Judicial
guidelines can also be found in the matter of procedural protections
against telephone tapping, public eye camp, blood donation, etc.”
Legislative acquiescence in these matters reflects complacence about
legal development.
The scrutiny of reports submitted by National Human Rights
Commission, Women’s Commission, Minorities Commission and
Commission for Scheduled Castes/Scheduled Tribes or Backward
Classes also makes Parliament to delve seriously into the domain of
human rights. Further, the interrelationship between human rights
and other values like social justice, economic development and national
unity demands for a holistic and integrated approach for the handling
of which Parliament is comfortably equipped, Although legislative
contribution is looked largely as a “top down” model, because of prev-
alence of democratic base, continuity of links with people, political
23 PB. Gajendragadkar, Indian Parliament and Fundamental Rights, Tagore Law

Lectures (Eastern Law House, Calcutta 1972) at pp. 190, 66-67.
4 Untouchability (Offences) Act, 1955; Protection of Civil Rights Act, 1955;
Scheduled Castes Scheduled Tribes (Prevention of Atrocities) Act, 1989; Immoral Traffic
(Prevention) Act, 1956; Bonded Labour System (Abolition) Act, 1976; Child Labour
(Prohibition & Regulation) Act, 1986; Protection of Women from Domestic Violence
Act, 2005; Armed Forces (Special Powers) Act, 1958; Contempt of Courts Act, 1971;
National Rural Employment Guarantee Act, 2005; Commission of Sati (Prevention)
Act, 1987; Indecent Representation of Women (Prohibition) Act, 1986; Environment
.
Protection Act, 1986; Protection of Human Rights Act, 1993.
2 Vishaka v. State of Rajasthan, (1997) 6 SCC 241; Lakshmi Kant Pandey v. Union of India,
(1987) 1 SCC 66: AIR 1987 SC 232.
301: AIR 1997
26 People’s Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC
SC 1570; Common Cause, A
SC 568; A.S. Mittal v. State of U.P., (1989) 3 SCC 223: AIR 1989
Regd. Society v. Union of India, (1998) 9 SCC 367: AIR 1999 SC 3434.
894 Panchayat Raj and NGOs
Role of Democracy, ANION
ic ce Et, a aa SE
party and pressure groups (NGOs) and the influence of media, its
character is a mix up of bottom up and top down models. However,
Parliament's failure to protect rights during emergency is a big black
spot on its image.
19.3.4 Role in promotion of welfare

A clause in Article 37 states, “it shall be the duty of the State to apply
these principles (Directive Principles of State Policy) in making laws”.
The fundamentalness of Part IV in the governance of the State and
the feature of its non-enforceability in courts make it more obliga-
tory on the part of Legislature to formulate legal policies to effectuate
them. The Constitution makers had viewed that political sanction by
the people through electoral choice would operate as evaluating and
monitoring factor on State’s performance in this matter.?”7 Regarding
distributive justice and non-concentration of wealth, there is large
number of central and state legislation, ranging from nationalisation
to extensive socio-economic control.?8 On labour welfare, legislation
providing for equal remuneration, minimum wages, maternity benefit,
safety and welfare conditions at factories and other workplaces, social
security measures against industrial accidents, diseases and old age
and protection against job losses and such other legislation can be list-
ed.”? About protection of health, animals especially cows, environment,
and monuments several central and state laws are governing the field2°
In the matter of Uniform Civil Code, lot of self-control is exercised by
the Legislature as the matter is sensitive and state intervention awaits
social acceptance. However, upgrading the gender justice component
” Constituent Assembly Debates, Vol. VII at pp. 493-94.

8 Bank Nationalisation Act, 1969; Monopolies and Restrictive Trade Practices
Act, 1969; Coking Coal Mines (Nationalisation) Act, 1972; General Insurance
(Nationalisation) Act, 1972; also see, agrarian and economic reforms legislation listed
in Ninth Schedule to the Constitution.
* Industrial Disputes Act, 1948 and various amendments from time to time;
Factories Act, 1948; Maternity Benefits Act, 1961; Contract Labour (Regulation and
Abolition) Act, 1970; Equal Remuneration Act, 1976; Workmen Compensation Act,
1923; Minimum Wages Act, 1948; Payment of Wages Act, 1948; Payment of Bonus Act;
Working Journalists Act, etc. Also see, M.C. Setalvad, The Role of English Law in India
(The Hebrew University, Jerusalem 1966) at p. 74.
* Laws on accreditation of hospitals and nursing homes, laws on contagious
diseases; Drugs and Cosmetics Act, 1940 Environment (Protection) Act, 1986; Water
(Prevention and Control of Pollution) Act, 1974; Air (Prevention and Control of
Pollution) Act, 1981; Wild Life (Protection) Act, 1972; Indian Forest Act, 1927; Forest
Conservation Act, 1980; Bombay Animal Preservation (Gujarat Amendment) Act, 1994;
Uttar Pradesh Prevention of Cow Slaughter Act, 1955; Madhya Pradesh Agricultural
Cattle Preservation Act, 1959, etc.
Role of the legislature in social transformation
Sea nr a neni Eta eh“ lied895
of personal law has been the major policy2" On panchayats, legal aid,
education and protection of children also statutes have been enacted
to fulfil the constitutional obligations2? Sometimes, overlapping juris-
dictions are exercised by the Centre and States3 Cooperative federal-
ism is yet to take deep roots in the matter of decentralised implementa-
tion of centralised legislations.
19.3.5 Role in maintaining national unity and multiculturalism

India is a land of several languages, religions and ethnic communi-
ties. Further, regional feelings also haunt public life. The Constitution
has vested upon Parliament, the power and responsibility to deal with
the sensitive issues like delineation of state boundaries, continuation
of language policy, and determination of rights of indigenous people.
Region-based reservation in employment is also within Parliament’s
control. In all these matters of great importance touching upon
nation’s unity and integrity, the Parliament has decisive voice to lay
down norms through ordinary law. It goes to the credit of great acu-
men and statesman—like foresight of the national legislature that it
not only handled the matter with deftness and dexterity required of
the circumstances but also championed the cause of unity in diver-
sity and multiculturalism by acting as the grand chamber of deciding
national questions.
In the matter of territorial organisation of federal units, the power
conferred upon Parliament to make laws* has been exercised with
great caution and by applying the principles of multiculturalism.
Language or ethnicity as a criterion for state formation was accepted
and applied by the Parliament in course of time in various contexts.
Demand for formation of states on the exclusive basis of religion has
been consistently rejected. Existence of overwhelming, peaceful and
long-standing people’s demand for statehood, consensus of the affected
state, and economic or administrative viability have been taken into
consideration. Secessionist tendencies have been discouraged or paci-
31 Hindu Marriage Act, 1955; Hindu Succession Act, 1956; Hindu Adoption
and Maintenance Act, 1956; Hindu Minority and Guardianship Act, 1956; S. 125 of
Criminal Procedure Code, 1973; Hindu Succession (Amendment) Act, 2006 and state
amendments providing equal coparcenery rights to daughters; Muslim Women
(Protection of Rights on Divorce) Act, 1986 as interpreted in Danial Latifi v. Union of |
India, (2001) 7 SCC 740. See also Ch. 16.
2 State laws on panchayats and nagarpalikas in accordance with the basic
principles required under the Constitution; Legal Services Authority Act, 1996; State
Education Acts.
33 For example, on compulsory and free primary education the central and state
Bills vary but apply on the same subjects.
4 Arts. 3 and 4 of the Constitution. See also supra, Ch. 6.
a SN a ES CT ee aR
fied through state formation in deserving circumstances. It goes to the

credit of Parliament that its decision on statehood questions has been
pragmatic, consistent and progressive as it enabled flourishing of cul-
tural identity of homogenous communities along with their economic
development but without threat of disintegration. The “sons of the soil”
theory of favouring regional people in access to public employment in
the concerned state has been neutralised by declining to exercise the
power conferred on Parliament under Article 16(3). Judicial action of
quashing and controlling the state policies favouring the local or lin-
guistic communities in access to education and employment has sup-
pressed the narrow-minded policies»
The Parliament's handling of “Official Language” question is another
example of its approach of objectivity, tolerance and national unity. In
the background of widespread agitation against imposition of Hindi,
the original policy of keeping English as a language for official pur-
poses of the Union was continued through the Official Languages Act,
1964. Regarding use of English in judicial and legislative transaction
status quo was maintained. In building linguistic harmony on sound
footing, the Parliament contributed immensely. But state legislation
have sometimes strived to bolster up the image and use of regional
language by preferential policies*
Legislation for safeguarding the interests of religious minorities by
estadlishing Minorities Commission, laws on protection of places of
worship and communal harmony and laws to introduce peripheral
reforms in administration of religious institutions have contributed to
the policy of secularism. In 1992-93 the Parliament went to the extent
of acquiring the disputed area of religious worship at Ayodhya to pro-
vide legislative support to the adjudicative process, although legisla-
tive judgment could not be validly enacted. The recent deliberations
in Parliament on Rajinder Sachar Committee Report brought out the
need for special measures for helping the religious minorities without
any exclusive criterion of religion”
Regarding the sensitive issue of Uniform Civil Code, the Legislature
has acted with self-restraint and has relied on community’s prepar-
edness and inclination to accept the family law reforms. Time and
again, when the Supreme Court insisted on bringing Uniform Civil
Code, the Legislature exercised self restraint and thought of upgrad-
ing the levels of gender justice within each personal law2* The legis-
lative response to the reaction/dissatisfaction of some section of the
%° See supra, Ch. 9.

© See supra, Ch. 6.
” See supra, Ch. 5.
Role ofSS.
theonilegisla
«chture
Rene Reiin ea
socialnA
transfo
tehrmation
oe rr rc 897
Muslim community to Shah Bano judgment reflected in the form of
Muslim Women (Protection on Divorce) Act, 1986 ultimately turned
out to be helping the marginalised Muslim women. Although in releas-
ing the pent up pressure and easing the situation the strategy might
have worked, its side effect of creating an image that Legislature had
indulged in pampering the minority had long-term effect. The repeated
efforts of enhancing the social justice content of Hindu, Christian and
indigenous people's personal laws have been supported by judiciary
also. Finding answer in social justice oriented multiculturalism rather
than in uniformity—for the sake of—uniformity has been the major
thrust of legislature’s approach.
The constitutional policy on tribal development, has been accentu-
ated by the Parliament by keeping the Schedules V and VI undisturbed
in spite of its power to alter the same. The Panchayats (Extension to the
Scheduled Areas) Act, 1996 has aimed at retention of traditional self-
governing institutions of tribals with minor modifications. Against
alienation of tribal land to non-tribals extensive legal measures are
prevalent in various states. The Forest laws allowed the tribals to col-
lect minor forest produce as their customary right. The Scheduled
Tribes and Other Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006 is an important milestone in ensuring their economic
security?
The objective of national unity and security is promoted through
stringent laws dealing with terrorism and acts of disruption. The space
given in Article 22 to lay down preventive detention law has helped in
this regard. The Preventive Detention Act, 1950, Armed Forces (Special
Powers) Act, 1958, Maintenance of Internal Security Act, Goonda Act,
National Security Act, 1978, Terrorist and Disruptive (Prevention) Act,
1986, Prevention of Terrorism Act were enacted to deal sternly with
acts that undermine national security and peace. In suppressing ter-
rorism in Punjab imposition of President's rule, for which Parliament's
approval is a must under Article 356, has also helped in addition to the
relevant laws.
In sum, the legal developments reflect ongoing realisation of the
Legislature’s responsibility towards constitutional multiculturalism
and national unity. This calls for society's participation in satisfaction
of communitarian aspirations and consequently has great bearing on
avoidance of fissiparous tendency.
% See supra, Ch. 10.

898 © Role of Democracy, PanchayatasRaj and NGOs
e
ii h ise Denn
19.3.6 International policies and legislature
In controlling international policies or in responding to treaties, agree-
ments or conventions the role entrusted on Legislature is not satisfac-
torily handled especially in the context of entry into WTO. Inadequate
discussion of the WTO policies and mechanical application of TRIPs
and other agreements for bringing far-reaching changes in the domain
of Intellectual Property Rights and investment law does not befit the
stature of national chamber for policy formulation.
As a central processing unit of democracy, Legislature has great
constitutional and socio-political responsibility. The benchmarks
for accountability can be traced in the spirit and express provisions
of the Constitution. A survey of Legislature’s performance over the
decades has shown, by and large, the positive compliance with the
benchmarks. Its record in the front of protecting the essential features
of the Constitution in the course of amendments has shown signs of
self-rectification. C.K. Thakkar, J. views, “By and large, constitutional
functionaries in this country have admirably performed their func-
tions, exercised their powers and discharged their duties effectively,
efficiently and sincerely and there is no reason to doubt that in coming
years also they would continue to act in a responsible manner expected
of them.”°
19.4 Panchayati Raj institution as an instrument of social

transformation
19.4.1 General
Decentralisation and democratisation are the vital processes in politi-
cal systems that bring greater transparency, accountability, respon-
siveness, equity, and opportunity for mass participation in local deci-
sion making for establishing a just social order.4* While multicultural
factors like language, ethnicity and regionalism persuade for some
scope to have self-governance of cultural communities, the geographi-
cal complexion of the vast territory of India# calls for decentralisation
for the purpose of planning and administration of development. After
* Raja Ram Pal, para 303.

*' Richard Crook and James Manor, Democracy and Decentralisation in South Asia
and West Africa (Cambridge University Press, Cambridge 1998) at p. 2 cited by S.N.
Jha, “Introduction” S.N. Jha and P.C. Mathur (Ed.), Decentralisation and Local
Politics
(Sage Publications, New Delhi 1999) at p. 15.
* According to the National Sample Survey there are 55 agro climatic regions in
India requiring considerable experimentation, adaptation and flexibility. See, S.N. Jha
op. cit., at p. 16.
Panchayati Raj Institution
e ee ee 899
four decades of exclusive reliance on individualistic approach and dis-
trust with village communityas a “sink of localism” “den of ignorance”
and pool of vested interests, restoration of the traditional community-
based approach has been found to sense the difficulties of change man-
agement and imperative to overcome the side effects of individualistic
approach. The Constitution (Seventy-third Amendment) Act, 1992 has
centre staged the community based approach with imaginative ideas
and plans for social transformation through mandating uninterrupted
functioning of local democracy. The policy of accommodating the
marginalised social groups in effective political participation not only
empowers them but also makes the democratic institution a meaning-
ful one. Because of the basic constitutional orientation towards social
justice, welfare and development, the rural grass root democratic insti-
tutions viz. Panchayati Raj Institutions (PRI) play significant role in the
social transformation phenomenon.
It is heartening to note that not only in the implementation of gov-
ernmental projects and schemes for welfare but also in effectuat-
ing laws like National Rural Employment Guarantee Act, 2005 and
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition
of Forest Rights) Act, 2006, direct responsibility is cast upon the PRI.
An integrated model of social transformation can effectively work only
concertedly by accommodating the elements of conflict-based social
changes and by stimulating and carrying out the consensus-driven
social changes. Since local level efficacy in law’s implementation is vital
to attain this objective, appropriate structure for grass root democracy
and its effective functioning build up the required social transforma-
tion strategy. How proper balancing of change with continuity, com-
munity development with social equity and globalisation with locali-
sation has been aimed, affected and ensured in the structure, legal
regime and functioning of PRI will be discussed in this section.
19.4.2 Conceptual basis and justifications

“Panch—Ayat” connotes group of five persons selected by villagers for
limited duration for the governance (Raj) of themselves. It is a tradi-
tional system of decentralised democracy. Decentralisation is basically
sharing of power with local community which feels directly the con-
sequences of that power.” It is a process by which the Government
divests itself completely of certain duties and responsibilities and
4 SS. Meenakshisundaram, “Decentralisation in Developing Countries” inS.N. Jha

and PC. Mathur op. cit., at p. 54. Harold Laski had said, “It confines the administration
of powers to those who will feel most directly the consequences of power” A Grammar
Politics (George Unwin, London 1960) at p. 60.
i a ee
devolves them on the local authority.** While centralisation distances
the power holder who stands at the vortex of social pyramid from the
people lying at its base, decentralisation asserts the virtue of democ-
racy by allowing flow of power to the democratically organised body
at its very source, or grass root. As Gandhiji said, “True democracy
could not be worked by some persons sitting at the top. It had to be
worked from below by the people of every village.”
Technically, it is the most efficient method of formulation and exe-
cution of local projects by understanding of, and responding to local
problems by taking into confidence and involving the local communi-
ty.“° Local Self Government facilitates the combination of, and coop-
eration between the officialdom and native leadership; it can better
handle local pressures; can cut red tape and provide efficient service
by being proximate to location; and can ensure better accountability
to citizens.” It avoids emergence of alternative power centre based on
physical or economic might,* and prevents congestion of local atmos-
phere arising from undue involvement by leaders at the centre.’ It
enhances political stability, offsets the dominant influence of the elite,
and contributes to national planning. It reinforces multiculturalism by
accommodating heterogeneity and harmony.® Rajni Kothari regards
that dynamic bottom-up local structure of voluntaristic kind emanat-
ing from civil society initiative is definitely preferable to imposition
from the top. The people-centred approach makes the people to act as
the basic engine of the development process and not merely its benefi-
ciaries. “Local Self Government perceived in this way will be a meas-
ure for containing discontent and channelising available local energy
and skills for promoting grass root level development.’
* Committee on Plan Projects (1957) at p. 7 cited by S.S. Meenakshisundaram op. cit.

at p. 56.
* Cited by R.P. Joshi and G.S. Narwani, Panchayati Raj in India (Rawat Publications,
*° S.S. Meenakshisundaram op. cit., at p. 60.
” G, Shabbir Cheema and Dennis A. Rondinelli, Decentralisation and Development
cited in R.P. Joshi and G.S. Narwani, op. cit., at pp. 11-12.
** In the context of growing menace of naxalism and terrorism, the countervailing
force for peaceful transformation through people’s involvement can be put forward
by PRI for laudable result.
” §.S. Meenakshisundaram, op. cit., at p. 61; also see, Nirmal Mukherji, “The Third
Stratum” in S.N. Jha and P.C. Mathur, op. cit., at pp. 70, 76-77.
*” P. Ishwara Bhat, “Multicultural Federalism in India: Values, Trends and Strategies”
(2001) Kerala University Journal of Legal Studies 23 at p. 37; also see, Nirmal Mukherji,
op. cit., at p. 77; S. 3(2)(¢) of the Karnataka Panchayati Raj Act, 1993 provides that Gram
Sabha shall consider for recommending to Gram Panchayat “the promotion of unity
and harmony among all sections of society in the village.”
*' Rajni Kothari, “Issues in Decentralised Governance” in S.N. Jha and P.C. Mathur
Panchayati
SSSR OSES RajSe
Instit utiontare. hee
onolasc l ea cr rrr 901
Decentralisation is not an end in itself. Protection of human rights,
goals of eradication of poverty, ensuring of right to work, providing of
civic amenities, extension of health and educational services, optimum
use of community resources, protection of environment through clean-
liness practices in group life are some of the factors and goals linked
to the working of decentralised institutions.* By resolving fundamen-
tal social and economic problems faced by various cross sections and
diverse communities, decentralisation constructs the necessary social
prerequisites of nation-building*> Looked from this perspective, it
is an effective and indispensable instrument of social and economic
transformation. It reflects consensus model, relies on people’s coopera-
tion, motivates people to strive their own good and adopts integrated
approach towards welfare. As Lal Bahadur Shastri opined, “...only the
panchayats know the needs of villages and hence development of vil-
lages should be done only by the panchayats... The panchayats are foun-
dations of democracy and if the foundation is based on correct leader-
ship and social justice, there can be no danger to democracy in this
country. Efforts should be made that the institutions established for
community development and Panchayati Raj, after independence, are
used for establishment of real democracy and improving the economic
and social conditions of the people.”54
The sociological perception of PRI envisages strengthening the
roots of democracy for bringing social change in rural sector. PRI cre-
ates new set of people who would act as change agents for different
kinds of activities and functions required to transform a traditionalist
society into a modern one. It initiates developmental process among
the masses motivating to think beyond regional needs and merge
with national planning aspirations»> A breakthrough for emergence
of new social structure based on people’s participation in the place of
feudalistic and caste-based leadership has also been contemplated by
PRI. The outcome of gram swarajya (self-sufficient village) through PRI
op. cit., at pp. 47, 53.

2 According to Vienna Declaration and Programme of Action, 1993, “Democracy,
development and respect for human rights and fundamental freedoms are
interdependent and mutually reinforcing.” (I-1) Under I-21 the State Parties through
legislative, administrative and other measures and by application of available
resources shall protect children, in particular abandoned children, street children,
economically and sexually exploited children, victims of AIDS, famine and drought;
and promotion and protection of rights of indigenous communities. Hence PRIs have
special role in these directions.
33 See, Prime Minister’s speech on 3-7-1993 and also see, for discussion S.S.
Meenakshisundaram and P.C. Mathur op. cit.
4. Cited in RP. Joshi and G.S. Narwani, op. cit., at p. 14.
India:
5 SP Jain, “(1976) 2 Sociology of Panchayati Raj (Local Government) inRural
s Indian Journal of Compara tive Sociolog y”, at pp. 41-51.
Current Status and Prospect
nO
was Gandhiji’s dream.° He said, “if my dream is fulfilled, and eve-
ryone of the seven lakhs of villages becomes a well-living republic in
which there are no illiterates, in which no one is idle for want of work,
in which everyone is usefully occupied and has no wishing for food,
well-ventilated dwellings, and sufficient Khadi for covering the body
and in which all the villagers know and observe the laws of hygiene
and sanitation, such a state must have varied and increasing needs,
which it must supply unless it would stagnate...’°”7 This involves an
integrated approach, commitment and vision to deal with various
inter-related facets of rural problem.
19.4.3 Historical background

The roots of PRI are traceable to the Vedic age. The villagers of this
period managed their simple local affairs by establishing self-govern-
ing institutions headed by Gramini, the village headman:* Although
there were diverse practices about his office—hereditary, elected or
nominated—he was assisted by a small group of villagers accountable
to the village»? As evident from literary sources during the Maurya
and Gupta kingdoms, caste distinctions did not obstruct access to
membership of village council. Shukra Nitisara refers to village pancha-
yat or elected council with large executive and judicial powers includ-
ing power to distribute land and impose tax." Highly systematised
practice of village Self Government through council and committees
was prevalent under the Cholas.* Supervision committees for annual
activities, for garden, tank, justice and gold were constituted by the vil-
*° “My idea of Gram Swaraj is that, it is a complete republic, independent of its

neighbours for its vital wants and yet interdependent for many others in which
dependence is a necessity. Regarding food crops, cloth, cattle, education and health
each village is expected to stand on its own”. See, Harijan, 26-7-1942. Also see, K.P.
Misra, “Relevance of Gandhian Vision of Village Republic” Vol. 28 (1) Gandhi Marg
(April-June 2006) at p. 53; also see, L.M. Bhole, “Gramswaraj: A Twenty-first Century
Imperative” Vol. 24 (1) Gandhi Marg (April-June 2002) at p. 43.
*” Collected Works of Mahatma Gandhi, Vol. LXVII (Publications Division, New Delhi)
at p. 211.
** K.A. Neelakanta Sastri and Srinivasachary, Advanced History of India (Allied
Publishers, New Delhi 1980) at p. 40; Mahabharata Shantiparva and Manu Smriti refer to
such practice and system.
* The factors of social consensus and cohesion in each village community is
emphasised in literature. See, P.C. Mathur op. cit., at p. 88.
*” A.S. Altekar, A History of Village Communities in Western India (Madras 1927) at p. 23.
Kautilya’s Arthashastra refer to village council. Also see, R.P. Joshi, op. cit., at p. 23.
*! Jawaharlal Nehru, Discovery of India (()NMF and Oxford University Press, New
Delhi 1946, 1982) at p. 248.
* Romila Thapar, A History of India (Penguin Books, New Delhi 1968, 1981) at
pp. 200-04.
Panchayati
St SSARajAin.
Instit utiond
ah ENE A a 903
lage assembly. Requisite qualifications like adulthood, sanity, holding
of land or house, knowledge of Vedas and business, and honesty
were
prescribed. Women could also serve in the committees. Persons with
criminal background, tax evaders and the dishonest were disqualified.
During the medieval period, with the introduction of feudalistic sys-
tems like jagir, mansabdar and malguzar the importance of PRIs got
dwindled but not destroyed. However, the Vijayanagar and Maratha
kingdoms allowed the PRIs to be effective bodies.
The East India Company’s rule caused slow but steady disintegra-
tion of PRIs in the backdrop of excessive concentration of executive
and judicial powers. However, the eternal character of little repub-
lics of villages surviving beyond rise and fall of dynasties and rey-
olutions has been referred to by Sir Charles Metcalfe in 1830. The
organic nature of PRI was instrumental to social happiness. He said,
“The union of village communities each one forming a separate little
state in itself has contributed more than any other cause to the pres-
ervation of people of India through all the revolutions and changes
which they have suffered, and is in a high degree conducive to the
happiness, and to the enjoyment of a great portion of freedom and
independence.” In 1870, Lord Mayo passed a resolution suggesting
for decentralisation of powers and associating Indians in the adminis-
tration. The Local Self Government (LSG) resolution of 1882 framed by
Lord Ripon proposed to form districts and tehsils, and Local Boards
for their governance.” The Boards were mixed bodies of elected non-
official members and nominated official members, where the former
held preponderance. The liberal two-tier system was not liked by the
British bureaucracy. The Royal Commission, 1909 suggested for start-
ing of Local Self Government system from villages, for adequate finan-
cial resources and for conferment of some judicial powers.” In Bengal,
Central Provinces, Uttar Pradesh, Punjab and Assam such Local Self
Government institutions were established in 1920s through law under
the provincial diarchy system of Government of India Act, 1919. The
provincial autonomy under the Government of India Act, 1935 enabled
formation of viable LSGs with better financial resources and lesser
bureaucratic intervention.
6 K.A. Nilakanta Sastri, op. cit., at pp. 528-29. ;

“ Ibid, at pp. 430-31; AV. Venkataratnam, Local Governmen t in the Vijayanaga r Empire
(Prasaranga, University of Mysore, Mysore 1972) at p. 1.
6. Imperial Gazette of India, Vol. IV at pp. 278-79 cited by Ambedkar, CAD, 4-11-1948.
R.P. Joshi op. cit., at p. 25.
of Local
6 RP. Joshi, op. cit., at p. 25. Ripon resolution is regarded as Magna Carta
Self Government.
o7 ibid.
O e
Atthe anvilofconstitution making, PRI was given alow key treatment
owing to a suspicion that reactionary approach and unhealthy atmos-
phere of villages may obstruct social transformation mission of the
Constitution. The prejudices of village communities inflicting remorse-
less inequity and injustice were brought out in B.R. Ambedkar’s words,
“What is the village but a sink of localism, a den of ignorance, narrow
mindedness and communalism? I am glad that the Draft Constitution
has discarded the village and adopted the individual as its unit.” It
was feared that local influential or wealthy class might exploit the
less-cultured and less-educated poorer classes and that throwing the
PRIs into whirlpool of party politics would destroy their usefulness as
agencies of administration. This line of argument was, in fact, escap-
ing from the challenge of reforming the villages and avoiding them
to become potential instruments of reforms by purging their defects
Gandhiji had believed in taking the battle to the right arena of strug-
gle and experiment with change of heart plus empowerment theory.”
It was argued by some members from this perspective that villages
had to be freed from the shackles of ignorance and superstition before
they became the backbone of the Constitution”; and that solution did
not lie in rejecting local democracy but in making it a powerful instru-
ment free from defects? It was argued that even if individual was
the soul of the Constitution, the village should be made the basis of
the machinery of administration”; that the fabric of governance had
to be rebuilt; and that real power and finance should devolve upon
local democracy to establish village republics. The amendment pro-
posed by Santhanam to introduce a Directive Principle of State Policy
was accepted by Ambedkar and was welcomed by other members. It
was hailed as a key principle which provided Indians with something
they can call their country’s constitution”> V. Subramaniam said, “...
if there was any living cell in the Constitution, it will be this pancha-
yat amendment.””° Optimism was expressed about villages becoming
self-sufficient social and economic units if properly worked and fairly
°° CAD, 4-11-1948, Vol. VII at p. 39.

°° M. Das in CAD, 8-11-1948, Vol. VII at p. 308; G. Das 22-11-1948 at p. 532.
” The approach of Ambedkar was antithetical to his own mainstream ideology of
conflict model of social transformation.
”' P. Ishwara Bhat, “Alternatives to Legal strategy: Gandhism, Sarvodaya and
Naxalism” (2006) 2 Kant Law Journal at pp. 19-48.
” Renuka Ray, CAD, 9-11-1948, Vol. VII at pp. 356-58.
” S.L. Saxena, CAD, 6-11-1948, Vol. VII at pp. 309-10.
“ AC Guha, CAD, 6-11-1948, Vol. VII at p. 256.
” S.M. Ghosh, CAD, 22-11-1948, Vol. VII at p. 525.
’° V. Subramanian, CAD, 22-11-1948, Vol. VII at p. 525.
PanchayatiNeeRajSe
aes Institea
ution tore el rrr 905
organised” But there was no categorical commitment through express
constitutional provision in this regard. The Directive Principle of State
Policy stated, “The State shall take steps to organize village panchayats
and endow them with such powers and authority as may be necessary
to establish them to function as units of Self Government” (Article
46). List II of the Seventh Schedule gives power to state legislatures to
enact law for this purpose. Rajeev Dhavan calls this arrangement as
a design fault as the duty was general and weak, and the power only
discretionary when the objective to be fulfilled was crucial matter such
as local democracy/* Instead of becoming a foundation stone of the
Constitution, as Dhavan puts it, it became a concessionary playground
for accommodating the Gandhians. The utter callousness and neglect
shown by the power holders in moulding this instrument threw aside
all the models of transformation. It took four decades to overcome the
fear about vested interests and to gather support for making the vil-
lage, backbone of reforms.
Diversity in state policies and practices regarding PRI about regu-
larity of in holding elections, term of office, extent of governmental
interferences, pattern and structure—whether two tier or three tier—of
governance, resources and reservation had caused worry in addition
to overlapping character of Community Development Projects which
had eclipsed the importance of PRI. Balwantrai Mehta Committee was
constituted by the Central Government in 1957 to study these matters
and suggest proper ways of organic linking of PRI with other bodies.
The Committee recommended for three tier structure of local self-gov-
erning bodies from village to district with organic linkage; genuine
transfer of power and responsibilities; avoidance of too much control
by the government; adequate transfer of resources; channeling of all
developmental programmes through PRI; and special provision for
representation of SC/ST and women at village panchayat7? In the back-
ground of dormancy of PRIs in late 1960s and decline in early 1970s,
the Central Government constituted another Committee under the
Chairmanship of Ashok Mehta in 1977. This Committee recommended
for two-tier system, Zila Parishad and Mandal Panchayat; recognition
of ZP as the primary unit of PRI; participation of political parties in
elections to PRIs; fair representation of SC/ST, and support of top rank
ing senior civil servant in administration.” G.V.K. Rao Committee
recommended for establishing Planning Commission (1984). Sarkaria
.
77 T. Prakasham, CAD, 22-11-1948, Vol. VII, at pp. 521-22.
7’ Rajeev Dhavan, “Design Faults and Failure to Design” extracted in Reading
Materials for Trainees ATI, Mysore.
79 RP. Joshi, op. cit., at pp. 30-32.
% Ibid, at pp. 36-37.
p
7 i ie
Commission (1984) strongly suggested for activating the PRI. The L.M.
Singhvi Committee (1986) revived the concept of Gram Sabha as a form
of direct democracy, and suggested for constitutional amendment to
include a new chapter on PRI to make its identity, integrity and work
ing substantially inviolate." This became a basis for 64th Constitution
Amendment Bill. With further more discussion and deliberations in
conferences and report of the PK. Tungan Committee (1989) which
recommended for constitutional status for PRI, regular election, and
agency for planning and development, the political climate was ready
for change. The whole development involved gradual building up of
public opinion and consensus to launch a grand constitutional scheme
of PRI to translate the social transformation aspirations into reality.
19.4.4 Suitability of the scheme for social transformation

Unless the structure of a mechanism is suitable for attainment of the
objectives for which it is framed, there is little chance for success in its
endeavour. According to the Supreme Court, village panchayats are
basic institutions of a democratic pyramid, where people’s participa-
tion conducts its affairs including its plans, policies, and programmes
and executes them.” The Constitution (Seventy-third Amendment) Act,
1992 heralded a new era by giving constitutional status to PRI, and by
obligating upon states to enact and enforce laws for running of PRIs
on a regular basis and definite pattern. It has the following features:
(i) constitution of panchayats at village, intermediate (block) and
district level; however, panchayats at the intermediate level
may not be constituted in a State having a population not
exceeding twenty lakhs;
(i1) regular elections to panchayats;
(iii) reservation of seats for Scheduled Castes/Scheduled Tribes
and Women (33 per cent);
(iv) setting up of an independent State Finance Commission for
strengthening finances of local bodies at all levels;
(v) constitution of an independent State Election Commission to
hold PRIs elections on a regular basis;
(v1) legal status to Gram Sabhas; and
(vit) addition of Eleventh Schedule to the Constitution listing 29
subjects within the jurisdiction of PRIs.
From the perspective of social transformation task, the following fea-
tures have special significance to reflect and contribution to make.
*! Ibid, at pp. 38-39.

"State of U.P. v. Pradhan Sangh Kshettra Samiti, 1995 Supp (2) SCC 305: AIR 1995 SC
1512-1516; see also N.M. Kheni v. Manikrao Patil, (1977) 4 SCC 16: AIR 1977 SC 2171.
Panchayati Raj Institution 907
19.4.4.1 Gram Sabha
Invoking “We the People” for the social transformation task is a unique
methodology employed in the Gram Sabha concept. Article 243(b) of
the Constitution defines Gram Sabha as consisting of all persons reg-
istered as voters in the electoral roll relating to the village within the
area of the panchayat at the village level. Article 243(a) states that the
Gram Sabha may exercise such powers and perform such functions
at the village level as the legislature of a State may, by law, provide.
Most State Acts have vested in the Gram Sabha the responsibility of
supervising and monitoring the functioning of the Gram Panchayats.
For instance, the Gram Sabhas are enjoined to examine the statement
of accounts and audit reports. The second (almost universal) set of
functions is the approval of plans, selection of schemes, its location
and beneficiaries under it. The other functions include—consideration
of budget and tax proposals, administrative report regarding imple-
mentation of schemes/programmes and other activities of panchayat.
Gram Sabhas in Schedule V areas have clear cut role in managing nat-
ural and community resources (like water, land, mineral sources and
finance) in addition to development planning and its implementation.
Ownership rights of Minor Forest Produce (MFP) have been vested in
the Gram Sabha and panchayats. The Gram Sabha was also viewed as
the body that would protect the traditions and customs of tribal socie-
ties.
Gram Sabha is envisaged as a forum of direct democracy for dis-
cussing matters of public interest, the schemes for welfare and need
for specific local action. It provides means of social audit." But some
of the policies that weaken their competence for social transformation
need a critical look:
(2) provisions doing away with theneed for quorum foradjourned
meetings of the Gram Sabha reinforce the tendency to view
Gram Sabha meetings as a mere formality;
(ii) state laws set out highly ritualistic functions to be exercised
by Gram Sabhas without giving binding effect to their
recommendation;
(iii) there are, at the same time, heavy expectations from this weak
and powerless Gram Sabha—it is expected to promote har-
mony and unity in the village, to mobilise voluntary labour
and contribution in kind, to promote programmes for adult
education and family welfare;
Kar-
(iv) while some State Acts (Punjab, Rajasthan, Uttar Pradesh,
Sabhas
nataka and Bihar) provide for powers to the Gram
Sabhas” ATI Reading Materials,
8 Sudhir Krishna, “To Grassroots through Gram
Mysore.
ee
Ge
to identify beneficiaries, the Rajasthan law provides that in
case the gram sabha is unable to select the beneficiaries in
a reasonable time, the Gram Panchayat shall identify them.
In Madhya Pradesh and Kerala the advice of Gram Sabha is
binding on the Gram Panchayat; and
(v) the membership of a Gram Sabha varies widely from State
to State from 250 to 8000. It may be confined to a single vil-
lage or may span 2-3 villages. Where the Gram Sabha covers
more than one village—the meetings of the Gram Sabha are
reported to be qualitatively very poor.*
Gram Sabha is not only an institution articulating the needs and aspi-
rations of the community but also a method of mobilising community
participation. While Gram Sabhas check against abuse of powers by
the panchayat, they can assist the very same panchayats to implement
development programmes. Gram Sabhas are supposed to act as watch-
dog to protect community interests and common property resources.
They are the fora for dissemination of information about welfare facili-
ties, social security measures, environmental protection schemes and
empowerment programmes for SC/ST and women. They are vested
with power under the NREGA to identify persons eligible to get rural
employment. Under Section 17 of NREGA, the Gram Sabha shall moni-
tor execution of the works within the Gram Panchayat; and conduct
regular social audits of all the projects under the scheme taken up
within the Gram Panchayat. In order to make them effective tools of
social transformation, people’s substantial participation should be
ensured. The Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 has also reposed faith and trust
in Gram Sabha. The Gram Sabha shall be the authority for determin-
ing the extent of individual or community forest rights or both given
to forest dwellers of ST and other traditional forest dwellers without
the local limits of its jurisdiction. It will be responsible for claims con-
solidating and verifying of them and preparing a map delineating the
area of each recommended claim. Gram Sabha shall pass resolution to
the forward copy to Sub-Divisional level committee.® Any aggrieved
party of Gram Sabha may prefer petition to the Sub-Divisional com-
mittee within 60 days from the date of passing resolution by Gram
Sabha with reasonable opportunity given to him to present his case.
“Report of the Task Force on Panchayati Raj Institutions (Planning Commission,

New Delhi 2001) at p. 3; also see, for criticisms R.P. Joshi, op. cit, at pp. 126-29.
® S. 6(1) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recogni
tion
of Forest Rights) Act, 2006.
*6 S. 6(2) of the Act, 2006.
Pancha
Se yati Raj Institution
cin ae en a cl ee ee 909
The increased tendency to involve grass root democracy is a welcome
development from the perspective of social transformation.
Iqbal Narain has viewed that a sincere effort to make Gram Sabha
a live institution, and allow it to naturally grow to organically unite
with the PRI movement will strike roots in the minds of all classes
of society.*” Jayaprakash Narayan compared the relationship between
village panchayat and Gram Sabha with that of Cabinet and Assembly
in the matter of accountability.® The Diwakar Committee looked to
the Gram Sabha as an instrument that strengthens the PRI as a whole.
19.4.4.2_ Economic development and social justice

Under Article 243-G of the 73rd Constitutional Amendment Act, the
States are required to devolve adequate powers, authority and respon-
sibilities on the PRIs in order to make them effective institutions of
local Self Government. The responsibility for the preparation of Plans
for economic development and social justice and its implementation in
relation to 29 subjects listed in the Eleventh Schedule is also bestowed
on the PRIs. Some of the subjects are directly relating to promotion of
social justice: social welfare, including welfare of the handicapped, SC/
ST; welfare of the weaker sections including SC/ST; women and child
development; poverty alleviation programme. Some are relating to
basic necessities: health, education, drinking water and housing. The
rest are relating to civic amenities and economic facilities: electricity,
fuel, forest, fisheries, agriculture, land development, village industries,
market, road, library and cultural activities. If well-planned and popu-
larly supported policies relating to these matters which touch upon
whole spectrum of rural life are evolved from Gram Sabha and concre-
tised by the representative bodies, the village scenario will be differ-
ent. But the language of this provision is very general and tapping of
its potentiality is dependent upon the political will of the Government
and determination of the administration. As Rajeev Dhavan remarked,
“In order that this constitutional objective is achieved, the panchayats
must have a well defined areas of empowerment which is not left to
the whims of the State Government, clearly defined executive agencies
which are answerable to the panchayats, independent rule-making
powers, predictable financial discretion, extended notions of common
property and real functions in respect of the everyday life of people in
the matter of food, work, welfare, land use, water and environment.”
1999,
87 Iqbal Narain, “Gram Sabha 1999-2000: The Year of Gram Sabha” October
Kurukshetra, at p. 22.
8° Cited by Mahipal, “Effectiveness of Gram Sabha” National Herald, 6-4-2000.
8° Rajeev Dhavan, loc. cit.
BEY biwiei se
According to Task Force Report of 2001, State Governments of
Madhya Pradesh, Uttar Pradesh and Rajasthan have made consider-
able progress in the devolution of functions, funds and functionar-
ies regarding subjects like education, health, animal husbandry, water,
women and child development. In states like Karnataka, Andhra
Pradesh and Maharashtra the devolution has been minimal. While
many states have not constituted District Planning Committees (DPC),
in Karnataka 18 out of 29 districts have constituted DPC. The centrally
sponsored projects like JRY, JGSY, EAS, IRDP, SGSY and PMJRY are
implemented through PRIs.
Important responsibilities are cast upon the Gram Panchayats to
effectuate the NREGA schemes. These include identification of the
projects as per the recommendations of Gram Sabha; taking up of the
projects sanctioned by the Programme Officer; preparation of develop-
ment plan; forwarding of the proposal to Programme Officer; alloca-
tion of employment opportunities among the applicants; and meeting
the required technical standards and measurements (Section 16).
19.4.4.3 Empowerment of the SC/ST, weaker sections and disabled

persons
Social justice being the signature tune of the Constitution has a special
mission in the working of the PRI to the benefit of the disadvantaged
section of the society. All the programmes related to empowerment of
SCs are implemented through the State Governments. Therefore, PRIs
being the grass root level institutions for promoting self-governance
can be involved equitably and effectively especially in:
(i) identification of needy and deserving beneficiaries;
(ii) distribution of schemes and beneficiaries among them;
(ii) identification of schemes in terms of their suitability and
feasibility;
(iv) evaluating the continuing schemes to identify gaps/problems
in their implementation;
(v) monitoring progress of implementation of these schemes in
respect of physical and financial achievements and watching
the actual performance and impact of the schemes;
(v1) monitoring the implementation of Special Component Plan
(SCP) and coordination, convergence and integration of vari-
ous programmes therein at the grass root level;
(vil) prevention of diversion of earmarked funds/benefits and
ensuring utilisation of the same for the purpose they are
meant for; and
(viii) selection of grass root level NGOs etc,
The PRI Task Force, 2001 has suggested for:
Panchayati Raj Institution
e 911
eee
(1) involvement of VP and Gram Sabha in effectuating the edu-
cational and career-oriented programmes, scholarship and
hostels for SC/ST;
(1) ZP assisting economic development and self-employment
programmes under the sponsorship of Scheduled Castes
Finance Development Corporation;
(ii) effective implementation of Protection of Civil Rights Act
through the initiative of Block Level Panchayat supported by
investigations through Gram Sabha and Village Panchayats
on the atrocities;
(iv) spreading awareness against untouchability;
(v) welfare and development of STs through Tribal Sub Plan
strategy;
(vi) ZP’s role in prevention of land alienation in the tribal area;
and
(vit) launching series of programmes for prevention of disability,
identification of the disabled for getting specific assistance,
educational and vocational rehabilitation and social integra-
tion of the disabled. Proper coordination among the three
layers adds success of the mission.
Apart from the above tasks, the availability of reservation for SC/ST
in the membership and presiding positions has also been operating
as a measure of empowerment as it alters the traditional power struc-
ture and releases new patterns of social relationship. As viewed by R-P.
Joshi and Narwani, “Experience in the functioning of the panchay-
ats reveals that, despite their social, educational and economic back-
wardness, these communities have now a greater say in rural local
governance.”
19.4.4.4 Gender justice: from the base of the pyramid

Women’s empowerment being another important goal in the
Constitution, is given focused attention under the PRI law. As Sarala
Gopalan viewed, “The process of empowerment is expected to open
the whole vista of human resource development to them and bring
them to the mainstream of social and economic development. Viewed
from this long term perspective, these instruments are powerful
instruments of empowerment, which women need to grab and wield
skillfully." While there were divergent views about the issue of giv-
ing reservation to women in PRI, the ultimate principle emerged was
recognition of one-third of seats and chairpersonship for women rep-
resentatives both in reserved (SC/ST) and general category. Although
” RP. Joshi, op. cit., at p. 180. .
ATI, Mysore.
1 Sarala Gopalan, “Women in Panchayati Raj” Reading Materials,
initially women representatives were from influential families, in

course of time women from the class of NGO leadership, teach-
ers, anganwadi workers and women groups began to represent. It is
viewed, “The membership in the panchayat has provided them great
exposure to Local Self Government, and kindled the latent leadership
qualities in them.”
Development of women and children, health and family welfare are
the important subjects figuring in the Eleventh Schedule. Integrated
Child Development Scheme and nutritional scheme greatly helps
the rural children and women. Establishing of Short Stay Home for
women under the initiative of ZP and village panchayat, launching of
training-cum-employment programmes for women, providing of spe-
cial place for women in, market, measures of protection against har-
assment, schemes for family counselling and arranging of awareness
programmes about atrocities have been in the agenda of PRIs.
19.4.4.5 Self-governance: the revived school of local democracy

Introduction of mandatory and periodical method of election has filled
life to the system of local democracy. As on 2001 about 2,32,278 pan-
chayats at the village level, 5905 panchayats at the intermediate level
and 499 panchayats at the district level have been constituted in the
country.” These panchayats are being manned by 2.92 million elected
representatives at all levels, of which one third are women. This is the
broadest representative base that exists in any country in the world.
Even before the 73rd Amendment the Apex Court had insisted on
periodical conducting of panchayat election. Each of the states has
constituted State Election Commission for smooth conducting of elec-
tions to PRI. State legislation contain elaborate provisions to hold pan-
chayat elections in free, fair and fearless manner. Some
of the States
(Himachal Pradesh, Andhra Pradesh and Madhya Pradesh)
have dis-
qualified candidates who got third child after the commencement
of
the Panchayat Act from contesting in election. Such a measure
has
been upheld by the judiciary as consistent with Fundamental
Rights.”
Karnataka introduced disqualification of candidates not having
sani-
tary latrine from contesting election. Challenges on excessive
reserva-
tion, introduction of party politics, application of anti-defec
tion rule
upon members, moving of no-confidence motions and
good percent-
age of polling in PRI elections have shown in various states
that local
democracy is throbbing with live action and response.
Substitution
of erstwhile atmosphere of love and affection by political
rivalry and
* Report of the Task Force on Panchayati Raj Institutions
(Planning Commission,
New Delhi 2001).
* Javed v. State of Haryana, (2003) 8 SCC 369: AIR
2003 SC 3057.
Panchay
Binks GESati Raj
Ahab SAInstitut ion
IR NA SI. Ope et i I le Na 913
electoral violence tells another side of the story. While there is scope
for dissolution of PRIs by Government, which are not acting in accord-
ance with law, there has been self restraint on this matter. The post-
1993 scenario has witnessed regularity and periodicity in conducting
of elections, State Election Commission’s efficient functioning and
holding of awareness programmes or training for PRI representatives.
The schooling in the art of Self Government has potentiality to make
significant contribution to an informed political life.
19.4.4.6 Environmental protection: the bottom up approach

Grass root democracy perfectly suits to the greening work through
local initiative and action. Rural health and safety depend much upon
cleanliness, purity of natural resources and meticulous care against
pollution. Many of the subjects figuring in the Eleventh Schedule
have dimensions of environmental protection. Even a cursory glance
of Panchayat Acts convinces about serious concern of law makers to
centre stage environmental protection policy in the PRI functioning.
For example, the Karnataka Panchayati Raj, 1993 prohibits nuisance,
restricts emission of smoke, controls use and storage of offensive sub-
stances, and authorises stoppage of dangerous quarrying. It author-
ises Gram Panchayat to call upon owner of any building to provide
for privies and cesspools, and call upon employers (of twenty or more
workers) and owners of theatres and places of public resort to provide
latrines and urinals with proper and daily maintenance. The Gram
Panchayat may, by notice, require the owners of any building to pro-
vide for adequate drainage system. It may regulate construction of
huts. Regulation of burial and burning in unauthorised places, pro-
vision for disinfection of building and abatement of nuisance from
foul water and measures against filthy buildings have been provided
for. With regard to sources of drinking water, their owners may be
directed by the Gram Panchayat to keep them unpolluted and in good
repair and to desist from use in case of pollution. It has power for
providing adequate water supply for drinking and other purposes by
constructing and maintaining wells, tanks or streams; by purchase or
acquisition of water resources; or by contract. Planting and preserva-
tion of trees, development of social forestry, development of grasing
lands and wastelands, and promotion and development of non-con-
ventional energy sources have been contemplated in the functioning
of Gram Panchayat. The powers conferred upon the Taluk and District
Panchayats also have implications of environmental protection as they
g,
touch upon subjects like afforestation, minor irrigation, rural housin
drinking water and regulation of small industries.
19.4.4.7. Planned development: the limitless scope

In the past, planning process was not decentralised. With the emer-
gence of the 73rd Amendment, bureaucratic domination in planning
has given way to formulation of planning by the lowest rungs moving
upwards to the District. It has been observed, “People’s participation
in planning through the PR system is expected to result in better and
more efficient planning because the local people have a better percep-
tion of the needs and better information about the local resources...
Such participation in planning has the added advantage of raising
the levels of people’s consciousness of their rights and responsibilities,
which in turn would tend to facilitate social change.” Such involve-
ment augments developmental effort through mutual cooperation and
self-help. Proper dissernination of statistical details and information
and assistance by the experts would be furthering the task of planned
19.4.5 General comments

The social transformation task of PRI has special significance because
of people’s participation in initiating, planning and implementation
of it. As an agency for implementing national and state projects and
schemes, its contribution regarding the poverty eradication and other
objectives has been pivotal as the identification of the most deserving
beneficiaries of such schemes and their effectuation is possible by the
involvement of Gram Sabha. The integration of consensus and conflict
models of social transformation has been imaginatively planned in the
PRI system. The initial inhibition about the reactionary tendencies of
village communities has been partially overcome with a determination
to make the rural community literate, open-minded and receptive to
reforms. The aim at all round progress of the rural community reflects
similar idea of total revolution suggested by Jayaprakash Narayan. In
view of the fact real India lives in villages, social transformation in this
domain is of great consequence. While local democracy is conceptu-
ally sound and embedded in historical experience and social attitude,
its newly attained constitutional status has made it more methodic and
clearly oriented towards social justice, welfare and sustainable devel-
opment. But 15 years’ of the functioning of PRI does not fill confidence
about its vigorous and dynamic working for social transformation.
Legal space for NGO
ne SSRRSones function ing towards
Son os nuchise~ nace socialeetransform
oN
ation 915
19.5 Legal space for NGO functioning towards social
transformation
From the perspective of benevolence and social assistance, the social
space occupied by voluntary groups, associations, or non-profit
organisations, which are called Third Sector or Non-Governmental
Organisations (NGOs), is of great significance due to its remarkable
positive contribution towards better protection of human rights, envi-
ronment, and consumers; promotion of gender and social justice; and
expanding of access to welfare for various classes of people. In the
sphere of education, health, care of the aged, disabled, orphan and the
abandoned, or in shielding the farmers, intellectual workers or con-
sumers from the hostile competing forces of the market, they play vital
role. At the level of making laws, their lobbying work has contributed
to making of a big corpus of social and economic reform laws. The
policy choices about domestic violence, forest dwellers, plant varieties
and protection of environment and consumers are influenced by the
pollinating work of the NGOs. In recent times, social legislation on
these matters increasingly contemplate active place for the involve-
ment of NGOs in the enforcement of the legal policy.
In this part, an attempt is made to examine the justifications for
involvement of NGOs in implementation of legislation for socio-eco-
nomic reforms, the types of their participation, and the difficulties and
advantages experienced in this sphere. A survey of relevant statutory
provisions is made in this context, which is followed by trend analysis.
The fact that use of NGO method is not uniform but endowed with
different strategies and experiences, and that experimentation about
more creative use of NGOs is an ongoing effort give complex picture
about the proper way to be paved.
19.5.1 Justifications
By pursuing a common cause, sharing joint enthusiasm and acting as
the “elementary schools of democracy”, NGOs enrich the social life.
They have grown in importance in recent times because of their occu-
pation of the space left out by the withdrawal of welfare state’s func-
tioning either because of state’s inability or compulsions of liberalisa-
tion.®+ Further, as against excessive bureaucratisation in governance,
people’s initiatives yearn for a lung space of participatory forum for
voluntary actions.* They intermediate between state and the market,
ti, New
Rajesh Tandon and Ranjita Mohanty, Civil Society and Governance (Sanskri
Delhi 2002) at p. 21. dies
2002, observes,
National Commission to Review the Working of the Constitution,
that mediat e betwee n the citizen
“Civil society consists of open and secular institutions
916 Panchayat Raj and NGOs
Role of Democracy,icBS
le iit ec RA A IS OESDONS NESE ESE
fill the informal sphere by numerous social networks, and often, being
rooted in cultural and ideological contexts, emerge as virtual prole-
tariat of cultural pluralism and humanist service providers.” Having
involved in arousing public opinion in support of a new legal policy
or reiterating commitment to the old, they become active social agent
with serious concern for its implementation. They have intimate social
contact, awareness regarding the identity of the aggrieved, knowledge
about the site of injustice and gravity of the problem, and an interac-
tion-based insight about the remedy required to resolve the problem.
Because of their non-bureaucratic character, they are able to muster
more information, develop meaningful contact with the people—both
the aggrieved and aggressor—and persuade the officialdom and the
service agency to comply with the legal measure. They have oppor-
tunity to fill confidence in the minds of the sufferers, stimulate hope
in their heart, and strengthen their hands for struggle. They can also
try to convince the people who are responsible for the wrongs about
their legal, social and moral responsibilities. In this way, they can han-
dle both the conflict and consensus models of social transformation
effectively. The integrated model of social transformation incorpo-
rated in variety of social reform legislation beckons for their valuable
service. People’s welfare is an activity recognised in the Constitution.
Although its execution is sponsored and supported by State, because
of its dominant goal it is also to be supported by performance of citi-
zens’ fundamental duty, which has communitarian base. Since NGOs
constitute a link between people and legal process, formal recogni-
tion of their competence for participation in the law’s implementation
becomes both logical and rewardful. By involving NGOs, indirectly,
the very social energy itself is invoked for sustained efforts.
19.5.2 Types and areas of participation

The traditional approach used to treat legislation as the one establishing
a direct relation between power holder and power addressee, and did
not recognise the intermediaries to help the implementation process.”
Social realities, market forces and individual rights and obligations
were to hold the sway, and compliance with law, however laudable
it was, remained an outcome of these factors unaffected by reform-
and the State. In the absence of civil society, the State machinery and civil servants
become the dominant repository of power.” (6.5.1)
°° P. Ishwara Bhat, Legal Environment Governing Third Sector in India (CACOM, Sydney
University of Technology, Sydney 2003) at p. 1.
” Factories Act, 1948, Maternity Benefits Act, 1961, Workmen’s Compensation Act,
1923, Prevention of Food Adulteration Act, 1954; Immoral Traffic (Prevention) Act,
1956 and various other legislation.
Legal space for NGO functioning towards social transformation 917
e e
oriented concern of the social organisations. But modern statutes have
carved out special space for the participation of voluntary organisa-
tions in welfare programmes envisaged under them. Matching the
wide range of activities of the NGOs in general, in the matter of imple-
mentation of socio-economic reforms, they are entrusted with tasks
of gathering data, assisting in identification of beneficiaries, initiating
investigation and prosecution, helping in rescuing and rehabilitating
and rendering medical help. They also contribute in formulating of
policy, and in dispute resolution. Being a part of the social system, they
live in the same legal atmosphere as any other providers of services.
Hence, they are amenable to the same law that ensures adequate stand-
ards in services, be it education, health, or medical camp. The rule of
law system also ensures their smooth functioning as against unlawful
interference by other bodies. The following survey looks to the legal
environment that supports or guides the functions of the NGOs.
19.5.2.1 Human rights protection

In the effort of protecting human rights, presently there is legal recog-
nition of the role of the NGOs. After the enactment of the Protection of
Human Right Act, 1993 and establishment of National Human Rights
Commission, the Voluntary Organisations approach NHRC also in
addition to other bodies for redressal of grievances. Under Section
12(i) of the Act, the Commission shall encourage the efforts of NGOs
and institutions working in the field of human rights. Since the words
“efforts of NGOs” have wide ambit to cover various activities like
human rights advocacy, awareness, investigation, research, education,
grievance-redressal and continued protection to victims, the NGOs are
expected to participate in an array of activities. The leeway provided
has potentiality of recognising both radical and moderate activities
of Human Rights NGOs. The Vienna Declaration and Programme of
Action, 1993 has insisted on cooperation of nations with non-govern-
mental organisations in creating favourable conditions at the national,
regional and international level to ensure the full and effective enjoy-
ment of human rights (I-13).
19.5.2.2 Health
Since some of the NGOs are providers of health service, legal envi-
ronment for their regulations is occupied by statutes like Karnataka
Private Nursing House (Regulation) Act, 1976 Tamil Nadu Private
Clinical Establishment (Regulation) Act, 1997, Delhi Nursing House
Registration Act, 1953, Transplantation of Human Organs Act, 1994, Pre
Rights” in The
98 See, P. Ishwara Bhat, “The Role of NGOs in Protection of Human
(Bangal ore 2003) at p. 235.
Changing Law, Prof. V.B. Coutinho Commemorative Volume
t Raj and NGOs
Role of Democracy, Panchayae
918 a
ee
a
1994, law on blood
Natal Determination Techniques (Prohibition) Act,
under Consumer
banks, liability for negligence in medical profession
y Act, 1974, etc.
Protection Act, 1986, Medical Termination of Pregnanc
ns and per-
These regulatory measures are applicable to all institutio
aim at
sons irrespective of their position as third sector bodies. They
ty of
proper accreditation of medical establishments, ensure availabili
adequate infrastructure and facilities and sternly deal with fraudu-
lent and anti-feminist practices. Their impact in ensuring efficacy and
non-exploitation in the health service activities of the third sector is
considerable. Under Section 41-AA of the Bombay Public Trusts Act,
1950 the Charity Commissioner or the State Government may direct
the state-aided public trusts, which run hospitals, to make medical
facilities available to the poorer classes of people free of cost or at con-
cessional rate without discrimination on the ground of religion, race,
caste, sex, place of birth, language or any of them. Similarly, 10 per
cent of operational beds and accommodations might be required to
earmark for the poor. It shall be the duty of the trustees to comply with
such directions.
19.5.2.3. Protection and welfare of disabled persons

The need for NGO participation in this sphere can hardly be underesti-
mated. The Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995 provides for registration
of institutes separately for persons with disabilities and severe dis-
abilities. It appears, these provisions are meant to ensure good quality
service by these institutes. Regarding enforcement of the legal policy,
the only opportunity for NGOs is to make them adequately repre-
sented in the composition of Central and State Coordinating (Sections
3 and 13) and Executive Committees (Sections 9 and 19) and influence
the working of these committees. The functions of Central and State
Coordinating Committees include reviewing and coordinating of the
activities of all departments of government and other governmental
and Non-Governmental Organisations which are dealing with mat-
ters relating to persons with disabilities (Sections 8 and 18). But the Act
does not involve the NGOs in decisions relating to taking steps for the
prevention of occurrence of disabilities, for providing education to dis-
abled children, for researching and improvising teaching methods, for
extending transport facilities and books, and for identification of posts
which can be reserved for disabled persons. In all these matters, where
NGOs can better play their role, they are ignored. Only the appropri-
ate government and local authorities, not even the coordinating com-
mittee where NGOs are present, would be deciding the matter.
Legal space for NGO functioning towards social transformation
Sg Ss Sateen at lps ot bch el lel 919
Under the National Trust for Welfare of Persons with Autism,
Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999,
a Board is constituted wherein the representatives of voluntary organ-
isations relating to these disabilities is constituted. One of the objects
of the trust is to extend support to registered organisations to provide
need-based services during the period of crisis in the family of per-
sons with disability (Section 10). Section 12 provides for the procedure
for registration. Minimum standard of facilities is ensured in the reg-
istered institute as per the rules.
The Mental Health Act, 1997 also fails to give satisfactory role to the
NGOs. Private psychiatric hospitals and psychiatric nursing homes
can be established under the Act after obtaining licence. The Central
and State Authorities for Mental Health Services have the power of
supervising psychiatric hospitals and psychiatric nursing homes, coor-
dinating the activities of the central and state bodies and advising the
government. But these bodies do not have the component of NGOs in
their composition.
19.5.2.4 Environmental protection

The involvement of Environment NGOs (ENGO) in state initiated pro-
gram of prevention and control of pollution is contemplated in the rele-
vant legislation. Under the Water (Prevention and Control of Pollution)
Act, 1974 the composition of Central, State and Joint Pollution Control
Board is such that it includes not more than three non official members
representing the interest of fishery, agriculture, or industry or trade
or any other interest which the appropriate government considers as
ought to be represented (Sections 14 and 34). Usually, office bearers
of NGOs find a place for such nominations. In exercising functions
under the Act relating to promotion of research, training the officials,
organising the programmes for dissemination of information under
Sections 16 and 17 of the Act, the Central Board and State Boards
involve ENGOs in the activities. The Air Act, 1981 has also similar pro-
visions (Sections 5, 16, 17).
Opportunity to participate in the determination of environmental
impact assessment and in the public hearing for clearances of projects
call for meaningful involvement of ENGOs in the enforcement of envi-
ronment protection laws. According to Schedule III of Environmental
Impact Assessment Regulations framed under Environment
(Protection) Act, 1986 the expert committee for EIA shall consist amidst
others a representative of NGOs or persons concerned with environ-
mental issues. Schedule IV provides that in addition to local residents
and affected persons, environmental groups (associations whether
920 Role of Democracy, Pancha yat Raj and NGOs
CF — — — — — — — r — n
incorporated or not, but functioning in the field of Environment) also
have right to participate in public hearing.
The Union Government published its policy statement relating to
environmental protection in 1992, which has categorically recognised
the role of Environmental NGOs. It said, “Affected citizens and Non-
Governmental Organisations play a role in environmental monitoring
and therefore in allowing them to supplement the regulatory system
and recognising their expertise where such exists and their commit-
ment and vigilance, will also be cost effective. Access to information
to enable public monitoring of environmental concerns will be pro-
vided for. Public Interest Litigation has successfully demonstrated that
responsible Non-Governmental Organisations and public spirited
individuals can bring about significant pressure on polluting units for
adopting abatement measures. This commitment and expertise will be
encouraged and their practical work supported."
19.5.2.5 Education
From ancient times to the present, education has been an important
service rendered by the NGO sector. “Education is the single most
powerful tool for the upliftment and progress of the society." It
empowers for development of personality, prepares for better future
and enables socio-economic mobility. While the voluntary associations
and social groups (whether minority or non-minority) have the objects
of conserving and promoting their specific cultural traits or objects of
philanthropy, in view of the need to ensure free and equal access to
primary education and fair opportunity for higher education, the need
for State’s interference has been felt. Further, the necessities of planned
development of educational institution, inculcation of healthy educa-
tional practice, and maintenance and improvement of standards of
education through better institutional discipline have called for legal
environment’s interference. In a multicultural developing democracy,
education is instrumental for ushering in a value based knowledge
society. Hence, its purposive character is to be synchronised with the
purpose compliance on the part of voluntary organisations.
In order to ensure quality education in all educational inst‘tutions,
state laws have opted for extensive controls. Kerala Education Act, 1958
set a trend for other state legislations like Andhra Education, 1972, West
Bengal Primary Education Act, 1983 and Delhi Education Act, 1973. The
Karnataka Education Act, 1983 got the President’s assent after a long
time and came into effect in 1995. In view of Kothari Commission’s
*”” Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India (2nd
Edn., Oxford University Press, New Delhi 2002) at p. 4.
'” B.N. Kirpal, CJ. in ‘T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.
Legal space
efor NGO functi
e oning towardse social transformation
e 921
recommendation, giving a statutory basis and regulative framework
for education was found to be expedient. Education is a subject com-
ing under Concurrent List. State’s duty towards compulsory and free
education to each child upto the age of 14 years’ was contemplated as
a Directive Principles of State Policy. Based on this principle, in Unni
Krishnan, J.P. v. State of A.P.*, the Supreme Court considered right to
education upto the age of 14 years’ as an aspect of right to dignified
life. According to the Court, private educational institutions could be
established by registered societies on non-profit basis.
The Primary Education Bills of the central and state governments
have carved out specific statutory space for the involvement of NGOs,
realising that grass root effectuation of “education for all” policy and
ensuring of school development will be possible through people’s par-
ticipation and the NGOs are the conduit pipe for linking them. The
idea of politically free School Development and Monitoring Committee
(SDMC) is gaining ground in Karnataka.
19.5.2.6 Protection of children

In the matter of protecting children against the practices of child labour,
abuses in inter-country adoption and sexual exploitation of children
the role of the NGOs is contemplated more in social practice than in
legal policy. The proposed laws on children’s education involve the
NGOs for effective implementation of the legal policy. NGOs consti-
tute important social capital for activating at the grass root level the
policy of preventing and eradicating the child labour practice and
mainstreaming the released child workers into the learning system.
Identification of working children is a complicated task to be car-
ried with well-planned strategies with which the NGOs are generally
acquainted.'” Confidential enquiries at neighbourhood, surprise visits,
checking of age records, and friendly interaction with local commu-
nity without invoking hostility are the means employed in identifica-
tion. Rehabilitation of child workers assumes physical, economic, and
psychological dimensions. Making the educational institution attrac-
tive through creation of positive environment conducive to learning
with pleasure is another task in which the NGOs are quite conversant.
Counseling and motivating the children and the parents about the
need for learning and disadvantages of early labour upon one’s career
can be better handled by the NGO activists. But unfortunately, the
legal space for their intervention is not specifically provided for in the
1 (1993) 1 SCC 645; see also supra, Ch. 14.

Delhi
102. Lakshmidhar Mishra, Child Labour in India (Oxford University Press, New
Press, New
2000) at pp. 203-17. Asha Bajpai, Child Rights in India (Oxford University
Delhi 2003) at p. 152.
composition
Child Labour (Prohibition and Regulation) Act, 1986. The
on 5
of the Child Labour Technical Advisory Committee under Secti
does not provide for representation of NGOs.
In the matter of inter-country adoption of children, the role of social
organisations has been contemplated in the judicial guidelines given
in Laxmi Kant Pandey case'®. Protection of children against exploitation
in the name of adoption is a task where NGO role is recognised by the
judiciary as prominent one. The proposed law has aimed at incorpora-
tion of this feature.
19.5.2.7 Consumer protection

Consumer Protection Act, 1986 visualises formation and participation
of a network of consumers’ associations in protection of consumers.
They come to picture at two contexts: in the functioning of Consumer
Protection Councils and in agitating for redressing the grievance
before the dispute settlement bodies. The Central Consumer Protection
Council, which annually meets for laying down policies for promotion
and protection of consumers’ rights, is composed of 150 members out
of whom not less than 35 shall be representatives of the Consumer
Organisations (Sections 4 to 6 of the Act and Rule 3 of Consumer
Protection Rules 1987). State Councils have also non-official members
(Section 7). More important is their role in grievance redressal system.
A complaint about defective goods or deficient service can be filed
before the District, State or National Forum either by the aggrieved
consumer or by any recognised consumer association whether the
consumer to whom the goods sold or delivered or agreed to be deliv-
ered or service provided or agreed to be provided is a member of such
association or not. Recognised consumer association means any vol-
untary association registered under the Companies Act, 1956 or any
other law for the time being in force (Sections 12, 18 and 22). There
are good number of such associations in some states (Andhra Pradesh
321, Tamil Nadu 161, Gujarat 123, Uttar Pradesh 103) moderate in some
(Karnataka 78, Kerala 60, Madhya Pradesh 71, Maharashtra 70, Punjab
78), and low in some others ( Manipur, Nagaland and Sikkim 3, Goa
5, Assam 8).
19.5.2.8 Gender justice

Since gender justice is a goal that can be achieved by actively involving
social organisations also, some pro-women statutes have specifically
carved out space for their participation. Under Section 7 of the Dowry
Prohibition Act, 1961 one of the alternative preconditions for taking
"8 Lakshmi Kant Pandey v. Union ofIndia, (1984) 2 SCC 244.

Legal space for NGO functioning towards social transformation
a NE SS sealer oa OE Ee as SNe NR aR 923
cognisance of any offence under the Act is a complaint by any rec-
ognised welfare institution or organisation about the commission of
the offence. A “recognised welfare institution or organisation” means
a social welfare institution recognised in this behalf by the Central
or State Government. The State Government, while appointing mem-
bers of advisory board to assist a dowry officer, shall appoint not more
than five social workers, out of whom at least two shall be women.
In practice, office bearers of voluntary organisations are appointed as
members.
The National Commission for Women Act, 1990 provides scope
for appointing experienced persons of women’s voluntary organisa-
tions as members of the National Commission for Women (Section 3).
Some of its functions like investigation, review of law, special study,
research and discrimination require cooperation of voluntary bodies.
The Immoral Traffic (Prevention) Act, 1956 gives scope for participation
of recognised welfare institution or organisation. It is in the presence
of lady member of such institution that women held for prostitution
can be interrogated [Section 15(6-A)]. The Magistrate, before handing
over custody of any person rescued from the place of prostitution to
the relative, should satisfy himself about the capacity and genuineness
of the relative as disclosed by an investigation made by a recognised
welfare institution or organisation [(Section 17-A)]. In the non-official
advisory board for assisting special police officer, social welfare work-
ers are to be appointed by the State Government [(Section 13)].
The Family Courts Act, 1984 visualises about integration into the
court proceeding, the conciliation counselling and post-adjudicatory
counselling through institutions or organisations engaged in the social
welfare function. Such support or auxiliary service helps in amicable
solutions of disputes relating to marriage.
Under the Protection of Women from Domestic Violence Act, 2005,
crucial responsibility is cast upon the service providing NGOs for
effectuating the legal policy. For providing legal aid, medical, finan-
cial or other assistance the incorporated voluntary associations may
be registered as service providers under the State Government for the
purpose of the Act.’ The Service Providers shall have the power to:
(a) record the domestic incident report in the prescribed form if
the aggrieved person so desires and forward a copy thereof
14 S_ 10(1), “ Subject to such rules as may be made in this behalf, any voluntary
association registered under the Societies Registration Act, 1860 (21 of 1860) or a
for
company registered under the Companies Act, 1956 (1 of 1956) or any other law
the objective of protectin g the rights and interests of
the time being in force with
including providing of legal aid, medical, financial or
women by any lawful means
a service provider
other assistance shall register itself with the State Government as
for the purposes of this Act.
Role of Democracy, and NGOs
Panchayat RajSSA
924 ii cS Rd At eae
5th
to the Magistrate and the Protection Officer having jurisdic-
tion in the area where the domestic violence took place;
(b) get the aggrieved person medically examined and forwarda
copy of the medical report to the Protection Officer and the
police station within the local limits of which the domestic
violence took place; and
(c) ensure that the aggrieved person is provided shelter in a shel-
ter home, if she so requires and forward a report of the lodg-
ing of the aggrieved person in the shelter home to the police
station within the local limits of which the domestic violence
took place [Section 10(2)].
The Service Provider is immune from legal proceedings for acts done or
purported to be done under the Act for prevention of the commission
of domestic violence [Section 10(3)]. Members of Service Providers are
to be considered as public servants within the meaning of IPC (Section
30). The success of the Domestic Violence Act much depends upon the
vigilant, active and reasonable work of the Service Providers.
The approach adopted in the Act is unprecedented and is allowing
wide range of social initiative in support of women. Conferment of
power and vesting of immunity to the Service Providers enable fear-
less support to the aggrieved.
19.5.2.9 National Rural Employment Guarantee Act, 2005

The Act provides for the enhancement of livelihood security of the
households in rural areas of the country by providing at least 100
days of employment in a year to adult manual worker in rural area.
The Central and State Employment Guarantee Councils perform vital
functions of advising, planning, monitoring, evaluating, and publicis-
ing of the employment guarantee schemes... Under Sections 10 and 12
the Central Council and State Council are envisaged in such a way that
members representing organisation of workers and disadvantaged
groups shall form part of their composition under the category of non-
official members.
19.5.2.10 Legal Services Authority Act, 1987

The National Legal Services Authority, established under Section 3 of
the Act, not only consists of members of voluntary associations, but
also performs functions in coordination with the NGOs. Section 4(i)
states that the authority shall make special efforts to enlist the sup-
port of Voluntary Social Welfare Institutions working at the grass root
level particularly among the Scheduled Castes and Scheduled Tribes,
women, rural and urban labour. It shall also provide grant-in-aid
for specific schemes to various Voluntary Social Service Institutions
Right to Information
SEE AS een et) ate ee ee 925
for the implementation of the legal services schemes under the Act
[Section 4(m)]. The composition of the Supreme Court Legal Services
Committee (Section 3-A), the High Court Legal Services Committee
(Section 8-A), the District Legal Services Authority (Section 9), and
Taluk Legal Services Committee (Section 11-A), also reflect inclusion
of NGOs. In organising Lok Adalats under Section 19 there is scope for
involving representatives of NGOs.
In Centre for Legal Research v. State of Kerala's, PN. Bhagwati, CJI
observed, “If we want to secure people’s participation and involve-
ment in the legal aid programme, we think the best way of securing it
is to operate through voluntary organisations and social action groups.
These organisations are working amidst the deprived and vulnerable
sections of the community at the grass root level and they know what
are the problems and difficulties encountered by these neglected sec-
tions of Indian humanity. They have their finger on the pulse of the
people and they know from their own experience as to what are the
unmet legal needs...” The Supreme Court ruled that recognised vol-
untary organisations or social action groups should be encouraged
and involved in organising legal aid camps (Lok Adalats).
On the whole, the social engineering function of law has to inevita-
bly make use of the social capital and live energy underlying the NGO
activity for its success.’ Unlike the traditional laws, the welfare leg-
islation have to involve the people more meaningfully in law’s imple-
mentation by invoking the NGO help.
19.6 Right to Information

Social transformation isa task that can be better handled by an informed
community. Information is power as it unravels public authority’s
knowledge of facts, policies and decisions regarding various matters
of social importance. It discloses rights and obligations of various enti-
ties and suggests about remedies and method of enforcement of rights.
Right to information is not only a human right but also an essential
tool of democracy.” It enables to combat corruption and misuse of
power. Sincere execution of development projects without corruption
and environmental degradation will be possible only with availabil-
ity of information. The very evolution of the Right to Information Act,
15 (1986) 2 SCC 706: AIR 1986 SC 2195.

ties of Life: A
6 P Jshwara Bhat, “Human Security and Access to Basic Necessi
s in India to ensure them
Survey of Legal Competence of Third Sector Organisation
y (Aggre planning Inc., Tokyo
in Masayuki Deguchi (Ed.), Conflicts v. Social Harmon
ae!
2008) at pp. 271, 287.
SCC 294; Peoples Union for
’
7 Union of India v. Assn. for Democratic Reforms, (2002) 5
Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC 399.
i a a
2005 is culmination of lengthy legal development and product of social
by
movement.” Its social dimension was perceived by the judiciary
recognising that freedom of press is at the heart of social and political
discourse and a definite role player in the process of social change.”
The RTI Act was passed to secure access to information under public
authorities, to promote transparency and accountability in their work-
ing, to contain corruption and to build up informed citizenry for mak-
ing democracy an effective institution.
Under the Right to Information Act, 2005, right to information
means right to access information by inspection of work, document or
record; taking of notes, extracts and certified copies; taking certified
samples of materials and obtaining information in electronic means.
Information is defined to mean any material in any form, including
records, documents, memos, e-mails, opinions, advices press-releases,
circulars, orders, log books, contracts, reports, papers, samples, mod-
els, data materials, held in any electronic form and information relat-
ing to any private body which can be accessed by a public authority
under any other law for the time being in force. According to Section
3, all citizens shall have right to information subject to the provisions
of the Act. Every public authority has obligation to maintain all its
records systematically. Public Information Officer shall be designated
in respect of each public authority. When a request is made by any
person for disclosure of information, the PIO shall provide such infor-
mation within 30 days from the date of request and within 48 hours if
it concerns the life or personal liberty (Section 7). There are certain cat-
egories of information which are exempted from disclosure, for exam-
ple, information which prejudicially affect sovereignty and integrity of
India, security, strategic, scientific or economic interests of the state or
those breach the privileges of Parliament or Courts (Section 8). In case
of refusal of access to information, the State or Central Information
Commissioner has the duty to receive and inquire about the complaint
(Section 18). Penalty for unjustified denial of access to information is
also provided for. The Act is a vital law to ensure transparency and
combat with corruption and misuse of power. )
19.7. Conclusions
Modern democracy has given valuable concepts and instrumentalities

suitable for social transformation. By giving effect to welfare ideolo-
"08 See, S.P. Sathe, Right to Information (Lexis Nexis Butterworths, New Delhi 2006)
at pp. 19-26.
'° Indian Express Newspapers v. Union of India, (1985) 1 SCC 641: AIR 1986 SC 515 at
527; Union of India v. Motion Picture Assn., (1999) 6 SCC 150.
Conclusions
S 927
ITS
gies through specific legislation the output of legislative activity has
vital contribution towards social transformation. The democratic strat-
egy has integrated the consensus and conflict models of social trans-
formation. Vast body of social reform law produced by the Parliament
and state legislatures is reflection of Indian democracy’s planning,
choice and effectuation of social transformation mission inspired by
the Constitution. Legislature has emerged as the central processing
unit of people’s will. With right to information attaining definite legal
base, peoples’ empowerment for social transformation has also taken
place.
Decentralisation of power and regularising of the Panchayati Raj sys-
tem have greatly enhanced the competence for participative approach
in rural development. In order to overcome the problematic features
and shortcomings of individualistic modernisation, rebuilding the
traditional institution of PRI with new orientation of constitutional
values has great advantages. But it requires tremendous social prepa-
ration also. Balancing between change and continuity has unavoidably
faced such responsibilities. Devolution of funds and functions, peo-
ple’s effective participation in Gram Sabha and training to the repre-
sentatives will stabilise its competence for effective social service.
The NGO role has filled the gap in implementation of social reform
law. Recent trend of increased reliance on them has used the con-
sensus model. Definite legal space for their participation as gatherer
of information and provider of service has made their role effective.
Participatory approach through NGO has witnessed significant gains
for gender justice, environmental protection, education and health.
The trend towards establishing and supporting strong norms of cor-
porate social responsibility is emerging in the NGO functioning.
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CHAPTER 20
CONCLUSIONS
I
Although it is difficult to evolve definite and final conclusions about
India’s experiences about the relationship between law and social
transformation in a wide array of topics touching upon various dimen-
sions of life having varieties of challenges, it is worthwhile to analyse
the major thrusts of developments in their entirety and cross check the
theoretical formulations made in the beginning in the light of social
experiences. The purpose is not to encapsulate some fixed formula
but to understand the extent of complexity that is to be tackled and
the path of caution to be traversed in the task of social transformation
with the help of law. Since social transformation with a commitment
to enlarge the people’s access to human rights and welfare is vital for
a constitutional democracy, the analysis gains immense significance.
The strands of thoughts developed in four parts of the present work
can be holistically considered as they are inextricably interrelated. The
integrated vision arising from the theoretical discussion carried in the
four chapters of Part I will help in examining the propriety and effi-
cacy of the policy relating to factors of multiculturalism, empower-
ment and modernisation discussed in subsequent three parts.
II
Legal system's position as a purposeful enterprise for promotion of
justice—social, economic and political—logically compels it to play an
instrumental and creative role in the social transformation task. Social
Conclusions
930
e
cS et R ERR se rhe Pe ea
transformation itself is a value loaded concept aiming at social com-
forts, harmony and development. The consensus and conflict models,
in spite of their tenability and relevance, do not become complete and
full fledged in themselves. While the former emphasises the domi-
nant role of social participation, the latter believes in state’s power of
initiating and compelling reforms. The integrated model synergises
the combination of these models and invokes the entire social energy
for working towards desirable social transformation. The concepts and
practice of multiculturalism, development and democracy support
this process.
The historical and sociological discourses have established the posi-
tive role of the community’s collective approach matched by state’s
facilitative response to social reforms both in initiating and implement-
ing them. The supporting and limiting factors of culture and balance
between conservation and progress call for a cautious approach. As
Lawrence Friedman observed, “Continuity—and yet change. These are
the constants of life. And the legal system plays crucial role in promot-
ing both continuity and change. It helps bridge generations, but it also
helps direct social change into smooth and constructive channels.”
In the mission of social reforms, the alternatives to law in the form
of ethics and social morality, rather than force and violence, are wor-
thy factors to be relied upon. The eternal relevance of the change of
heart theory of Gandhiji, the imaginative communitarian ideology
and working of sarvodaya support the means of social transformation
through law. The socio-economic problems revealed in the context of
naxalism persuade for systematic societal preparation to deal with
rural people’s maladies.
The Constitution of India, befitting to the legacy of national struggle
for freedom and with high aspiration to build the nation on the pedes-
tal of social justice, has meaningfully centre staged justice in the gov-
ernance. Sensitising and monitoring power-legal, economic and social,
whether individual or collective-in the beacon light of constitutional
values have tremendous potentiality and responsibility. As viewed by
Blaise Pascal, “Justice without power is inefficient, power without jus-
tice is tyranny..justice and power must therefore be brought together,
so that whatever is just may be powerful, and whatever is powerful
may be just.” From this perspective, social legislation is not a docu-
ment for fastidious dialects but a means of ordering the life of the peo-
ple; and for expanding freedoms and welfare of the people.*In a land
' Lawrence Friedman, American Law (Wisley Eastern Ltd., New Delhi 1985) at
p: 12.
> State of Karnataka v. Appa Balu Ingale, 1995 Supp (4) SCC 469: 1994 SCC (Cri) 1762:
AIR 1993 SC 1126 per K. Ramaswamy, J.
Conclusions 931
S eeeR
NSN a ee ae ned
of cultural pluralism, inequality dividing between the strong and rich
and the weak and poor, and facing the challenges of modernisation,
using the approach of justice, human rights and welfare appropriately
streamlines the social transformation task.
Ill
Indian experience on multiculturalism has been unique and valuable
because of its multi-dimensional character and competence to hold
the society together with harmony and solidarity in spite of emo-
tional trouble spots and problematic issues. Each component of plural-
ism viz. religion, language, regional diversity and ethnicity has been
approached by the legal system in a manner substantially suitable to
those components. Secularism with social reforms, principles of reli-
gious harmony and protection of minorities have assisted in balancing
between continuity and change. The values of inclusive society yearn
for a firm mindset for co-existence and eschewing of emotional sur-
charge that conflagrate into fundamentalism and terrorism. The root
cause for disharmonies consists in inequity in development and lack
of education for responsible citizenship. A rule of law regime is an
answer to distractions of communal disharmony.
Basic soundness of language policy—equal language rights of all—
has produced comfortable result by satisfying numerous linguistic
interests reflected in the form of territoriality and opportunity in offi-
cial use in various spheres of public life. Equality’s role in combating
language-based discrimination in public employment and economic
opportunities has helped in ensuring social harmony. The tendency of
power holders to play to the galleries rather than abide by the funda-
mental law has posed problems. The need to strengthen rich linguistic
culture and to enhance the competence of Indian languages to meet
the challenges of Modernisation, including Globalisation, should be
realised through deliberate and serious efforts in order to bridge the
gap between people and the legal system’s functioning. Globalisation’s
penetration into the sphere of language in education has been prob-
lematic and got further complicated because of the use of unstructured
concept of parental choice. It is more appropriate to give attention to
the imperative of effective learning process. Language itself being a
social force, has great potentiality of motivating social transformation
through its rich, persuading and enlightening literature. _
Regionalism is another factor that has called for its solution, egali-
tarian treatment and integrated development of all the regions with-
out discrimination. The chauvinistic feeling needs to be suppressed
by positive efforts of equitable economic and social development and
exclusion of grouses and heartburns. Building a mindset of national
932 Conclusions
an aes Ee, enn ee
citizenship and brotherhood paves the way for social harmony. In

the context of ethnic pluralism the strategy of social transformation
relies upon triple ‘S’-Security, Self-government and social justice. The
policies of protecting the economic, social and cultural interests of the
indigenous people, opportunity for self-determination in local policy
making and empowerment through affirmative action have been
uniquely employed yielding an appreciable result.
Thus, regarding different factors of multiculturalism—religion, lan-
guage, localism and ethnicity-social transformation strategies have not
been uniform at the outset. But when probed deep, the fact that these
centre around the concepts of equal liberty, welfare and empowerment
would be clear. Special rights of the religious and linguistic minori-
ties, concessions to the “have-not” languages, support to indigenous
people and greater efforts of economic development in specific regions
to set right regional imbalances have distinct features of substantive
equality. While the theoretical and legal attainment is marvellous, in
the practical world the recurring problems of communal disharmony
due to some imbalances arising from money-based religious conver-
sion, unjustified linguistic discriminations and snatching of opportu-
nities by the migrants have been challenging. The bad experiences in
some parts of the country in the year 2008 in this regard are shocking
and arouse great concern. An integrated and fair development of the
society, enlarging the access to human rights, would provide lasting
solutions to these problems. As observed by K. Ramaswamy, J. “The
existing social inequalities or imbalances are to be removed and social
order readjusted through rule of law, lest the force of violent cult gain
ugly triumph.”
IV
Empowering the vulnerable is a vital strategy of social transforma-
tion. The discussion on constitutional and legal policies towards
backward classes, women and children has revealed the importance
of state’s activist role. While the strategy is primarily that of conflict
model, its working in human rights system requires proper balancing
with rights of others and community’s preparedness for cooperating
with the change process. Undue emphasis given to reservation rather
than to the whole task of empowerment through capacity building has
perpetuated caste-based reservation in the place of need-based reser-
vation. The expanding domain and reach of reservation, engineered
through constitutional amendments and carried through judicial nods
subject to slender control, has reflected the fact of politicising the strat-
egy. The creamy layer test needs to be applied to identify all the reser-
> Ibid.
Conclusion
2
S ge s 933
Serrr
vation beneficiaries so that the benefit will go only to the most deserv-
ing persons. Equitable development of all sections calls for attention
and action as a long term solution and an alternative to reservation.
By building up a strong law against the practice of untouchability, the
social reform mission is made effective.
Experiences about gender justice and child protection have taught
about great relevancy of law in protecting their interests. Judicial activ-
ism made significant contribution in evolving the law against sexual
harassment of women and enhancing the level of legal protection by
pro-woman interpretations of the Constitution and laws. Legislative
efforts also have contributed towards safeguarding women’s cause.
Protection of children’s interests through laws on child labour, adop-
tion and education is another valiant effort of social transformation.
Both regarding women and children law’s efforts were either pre-
ceded or followed by the meaningful activities of NGOs. Their social
and legal advocacy and grass root works have made the strategy of
empowerment, a reality.
What strikes important in the field empowerment is that education,
economic development and eradication of exploitation have to gain
greatest attention and support in practice. Society’s genuine involve-
ment and concerted efforts of NGOs have proved to be possessing great
potentialities in these spheres. Again, it is the human rights principles
that played an inspiring role in the empowerment task; and again, it is
the attitudinal changes on the part of all the concerned that will make
the endeavour, a great success.
Vv
Law’s response to modernisation has set the pace of social develop-
ment by its regulatory, protective and facilitative role. Modernisation,
through its emphasis on the values of welfare, secularism, develop-
ment and humanism, has greatly spurred the democracy into concrete
action with new approaches and experiments. But, the adverse effects
of modernisation, reflected in the form of materialism, individualism
and ruthless competition of market economy, have posed challenges
to the continuation of basic values. Its latest facets, Liberalisation,
Privatisation and Globalisation, although expanded the economic
opportunities, have been problematic in realising the constitutional
goals. But the Indian legal system has shown great ability of adjust-
to Soli
ments to reaffirm the fundamental commitments. According
It would
Sorabjee, “Globalisation in itself is neither good nor bad.
necessary to
depend upon what is made of it. Utmost vigilance is
of the
ensure that globalisation does not accentuate marginalisation
1n wealth and
weak and the vulnerable and widen the disparities
934 Conclusions
eee
W a
disci-
income. For that purpose globalisation must be subject to the
pline and regime of the rule of law and must conform to the basic
elements of social justice.” Even the technology-related challenges of
modernism have to be tackled by similar approach.
S.B. Sinha, J. has observed in Jeet Bisht, “With the advent of glo-
balisation, we are witnessing a shift from formalism to a value laden
approach to law. In the contemporary scholarship, especially with
the decimation of law as purely an autonomous discipline (with the
emergence of cross cutting realms such as Law and Economics, Law
and Philosophy, Law and Society, IPR), we see that law embody a goal,
which may have its provenance in sciences other than law as well. It is
no more the black letter in the law which guides the interpretation but
the goal which is embodied by the particular body of law, which may
be termed as the rationality of law.’ The efficacies of values of human
rights, welfare and multiculturalism that underly the legal system and
sensitise the social transformation task need to be maximised in pur-
suance of the value laden approach.
The grammar of new age has been that of human rights and peoples’
egalitarian participation as opposed to hierarchical order. Hence, its
impact upon vast areas stretching from family law, economic sector
and justice delivery system to grass root democracy has streamlined
the developments towards appropriate patterns of social transforma-
tion or created tools for its attainment. While the competence of human
rights strategy is proved to be effective for social transformation in
judicial interpretation of family law measures, the difficulty on the
part of legislature to dismantle the pluralism of family law is inherent
in the very fact of multicultural society. Whether culture and tradition
are the factors that dampen the pace and progress of reform or that
redefine the modernist norms by reviving the essential aspects of con-
tinuity and reflect post-modernist approach is an important aspect to
be considered in planning and implementing family law reform. What
has been found more acceptable is a reform that renders justice or pro-
motes human rights rather than a measure that effaces identity what-
ever may be the ultimate advantage. A sober and convincing policy of
enhancing the components of human right and gender justice in each
personal law will elevate its respectability and come nearer to other
personal laws in terms of its worth and content. Thus, the appropriate
strategy or inevitable task consists not in wiping off legal pluralism
* Soli J. Sorabjee, “Rule of Law: Its Ambition and Dimension” in N.R. Madhava
Menon, Rule of Law in Free Society (Oxford University Press, New Delhi 2008) at pp. 3,
8-9.
° State of 'I.P. v. Jeet S. Bisht, (2007) 6 SCC 586, para 72.
Conclusions 935
COO
ee
or diversity but in upgrading of their inner human right content and
orientation to gender justice.
The goals of economic justice in various spheres of economic life
such as agriculture and industry have spurred the policy makers to
reorient the legal system towards their attainment. The story of agrar-
ian reforms is a mixed bag of success and failure and of slipped oppor-
tunities, telling the morals about need for sternness in conflict mod-
elled legal measures. The legal efforts of humanising industrialisation
of agriculture have also seen ups and downs, and could not ameliorate
the farmers to the required extent. The trends towards liberalisation
of industrial policy have deviated from the goal of economic egali-
tarianism and have their own impact. The meticulous effort to balance
between development and environmental protection through various
sub-principles of sustainable development has been emerging as a key
approach to conserve the natural environment. The integrated model’s
relevance and contribution is becoming clearer through the efficacy of
participative approach of the community.
In equipping the legal system with fair tools of justice delivery
mechanisms and reforming the institutions like prisons, the human
rights and social considerations have made great contribution, thus
giving a concrete and definite shape to social transformation. The vice
versa is also true. Reverting back to the traditional system of arbitra-
tion and other ADRs after experiencing the serious disadvantages of
the ordinary court system's procedure, the society has traversed the
post-modernist lines. Less percentage of convictions, delay in trial
and in-built bias in favour of the accused have weakened the rigour of
criminal justice system and sapped the people’s confidence. The con-
tinuing acts of terrorism and less success in investigation and prosecu-
tion have belied and belittled the constitutional purpose of protecting
the life and personal liberty of all. How a well-planned anti-terrorist
law and its sincere and effective implementation can save the society
from bloodshed and insecurity is well-illustrated in the recent western
experience. This deserves notice and emulation. The reforms like intro-
duction of plea bargaining with adequate procedural safeguards, legal
aid and prison reforms have strengthened the criminal justice system.
As an instrument of social transformation, Public Interest Litigation
has been par excellence because of procedural flexibilities, remedial
varieties and imaginative substantive principles and interpretation to
suit to the requirement of social reform. The heights of finest values
scaled through this phenomenon effloresced constitutionalism and
brought welfare to people. Human rights, justice and equitable and
sustainable development got centre staged to give upward thrust to
the whole development.
936 Conclusions
ee ee ree ee
The contribution of democracy has been vital for social transforma-

tion both from the perspective of values it cherishes and institutions
it employs for its functioning. The distribution of power in numerous
centres and withdrawal of special privileges constitute the essence of
democracy. Rule of law, accountability, human rights values and wel-
fare form important aspects of democracy and make great contribution
to social transformation. The Panchayati Raj Institution has great poten-
tialities for preparing and involving the people in the social transfor-
mation task at the grass root level. The diversity in legal policy about
the type of NGO participation reflects the different degrees of social
involvement contemplated by law. Authorising the NGOs to complain
about disobedience to law; to identify the aggrieved and make repre-
sentation on her behalf; to provide rehabilitation or other relief includ-
ing medical relief to the affected; and to bring awareness about the
legal measures by various means has been the strategy employed in
the recent reformative statutes. It is in the domain of gender justice
that a highly pro-active role is conferred upon the NGOs. Both the
Dowry Prohibition Act and Domestic Violence Act have recognised
activist role of the NGO. Regarding the rights of vulnerable sections
of society legal policy should associate itself with activist role of the
NGOs. Recasting of the statutory space for more effective contribu-
tion by NGOs needs to be done in these spheres for avoiding haphaz-
ardness and inadequacies. The social capital arising from concerted
acts and the high level of awareness energise the transformation task
towards right ends.
VI
Centre-staging of justice in the social transformation task is an impor-
tant development that has acted as storehouse of strength in its appli-
cation and impact in all its dimensions. As a perennial social virtue it
has lent meaning and given an appropriate direction to legal regime.
Being a social norm and an ideal, and closely related to both law
and morality by sensitising them, it sets forth a quality which it is
ultimately desirable to realise in conduct and the social relations of
human beings.’ The proponents of social good theory assert that the
origin and basis of justice lies in the good of the society; that is, in a
good greater than individual or private good, achievable only through
human beings acting in common, and one in which individuals can
find their own good? Going beyond the traditional task of rendering
. * Sidgwick, Methods of Ethics (7th Edn., Macmillan & Co., London 1962) at p. 264
cited by Otto A. Bird, The Idea of Justice (Frederick A. Praeger, New York 1967) at p. 13.
” Otto A. Bird, op. cit., at pp. 85-86. Bentham, Mill, Hume, Sidgwick, Ihering and
Rawls are some of the scholars who propounded social good theory.
Conclusions 937
0 ES Ee rr
to each person good or evil according to Desert, it upholds social expe-
diency of benevolence. Historically, legal justice had challenged social
good facet of justice when the rich were rewarded from the pockets of
the poor, labour were bestowed with industrious work and the vicious
were given the means of harming both themselves and others. With
the dawn of republican constitutional values in free India, there could
be no more justifications for these to occur. The brilliant pages of con-
temporary history reflect emergence of activist social reform principles
and devices. The roles of various reformative tools, that is, empow-
erment policy, security, judicial activism, grass root democracy and
social advocacy by the voluntary groups are to be appreciated in the
beacon light of social good facet of justice. It is an impressive achieve-
ment on the part of the Indian legal system and its supportive agencies
in preparing these instruments as effective and balanced ones greatly
able to handle the socio-economic situation obtaining in India. It is the
strength of commitment to the constitutional values that could firmly
anchor the socio-economic development to benevolence in spite of the
thunderstorms of globalisation.
Vil
A Holistic picture that we formulate after a long sojourn on multi-
tude of social processes and developments places reliance on inte-
grated model of social transformation, combining best of both the
worlds—evolving from below through people’s consensus and partici-
pation, and persuading from the above through conflict model-and
avoiding the defects of both. Law being only one of the social tools,
although very powerful and authoritative, has to depend upon other
social factors like public opinion, media, and civil society organisa-
tions. Value-promoting education; mindset for low-key treatment of
differences based on race, religion, language and region; attitude of
sympathy towards the vulnerable; exposure to modernist values along
with respect for composite culture; and love towards nature establish
together, an atmosphere for desirable social transformation. These are
not mere ideals of good citizenship prescribed as fundamental duties
in the country’s supreme law but prerequisites of an inclusive and har-
monious society aiming at social progress, equitable development and
human rights for all. They enable emotional integration of communi-
ties, and emphasise on collectivist approach of the people for every-
body’s development. The long history of India has proved the validity
and advantage of the collectivist approach with practical lessons and
| 1
® JS. Mill, Utilitarianism, p. 61 cited in Otto A. Bird, op. cit., at p. 115.
op. cit. at
° David Hume, A Treatise of Human Nature, at p. 579 cited in Otto A Bird,
p. 114.
938 Conclusions
e
ee e
experiences. Constitution’s role as a rich reservoir of values, guide-
lines, aspirations and institutions/mechanisms for social transforma-
tion has ushered in a new era of free society determined to grow with
people’s welfare.
Approach of integration needs to be there amidst various organs
and levels of government also, if at all social transformation should
emerge as a reality. Law-making, implementation and adjudication
shall be inspired by the spirit of social policy beneath the law. Lack of
coordination amidst the officials, departments and organs and prac-
tice of fragmented approach not only exhibits haphazardness but also
defeats even the most essential reforms. Institutional complementari-
ties enhance the system’s competence for dynamic changes in addition
to control abuse of power.
The Indian concept and practice of cooperative federalism has been
the source of strength in managing the social transformation task by
ensuring decentralised planning and implementation of reforms and
by accommodating unity amidst diversity. The relevance of federal-
ism for Part III and Part IV of the Constitution consists in integrat-
ing the national and regional efforts in translating social justice into
reality. Panchayati Raj Institutions have provided additional tools for
concerted efforts at the grass root level in this direction.
Integrated approach at the societal level relies on, and spurs into
action collectivism. Organised endeavours of civil society have pro-
vided communitarian support to the evolution and implementation
of social reform laws. The vacuum arising from state’s escapist with-
drawal from welfare at the teeth of globalisation is made good by NGO
intervention. Formal recognition of their creative role in the reform-
oriented statutory spaces is a development that uses the social energy
for law’s implementation. Cooperative societies, charitable institutions
and foundations have immense potentialities and responsibilities in
this regard. Modern democracy has a cementing force to build up
social solidarity by bringing the isolated factors together.
Vill
All said and done about law’s competence to bring social transforma-
tion, it could be seen that the relaxed moods, complacence and indif-
ference on the part of people and the officers, and widespread prac-
tice of corruption have been the roadblocks to progress. The culture
of legalism—the determined attitude to obey law and to set the legal
mechanism into motion—has not yet been developed as a social force
and strong factor of national character. What was depicted by Upendra
Baxi few decades ago as a feature of crisis of legal system” is continu-
Upendra Baxi, The Crisis of the Indian Legal System (Vikas Publishing House, New
a
Conclusions
ing to a certain extent in spite of the innovative developments in the

legal system’s strategies for social justice. Contamination of public life
by corruption has inevitable and immediate impact upon the efficacy
of law and good governance. According to N. Vittal, “Corruption is
uncontrolled financial behaviour. Just as AIDS knocks out the immune
system of human body and leads to early death, corruption knocks out
the immune system in the form of checks and balances to ensure good
governance and the implementation of the rule of law, which results
in the society becoming dysfunctional and moving towards anarchy.”""
Transparency rules, right to information, onbudsmen system and the
clean election concepts have shown competence in restoring faith in
the rule of law. Laudable objective of social transformation needs to
be supported by a strong rule of law regime. People’s participation
adds strength to it. Justice Shiaraj Patil observes, “Vigilant civil soci-
ety, dedicated voluntary organisations, honest law enforcing agencies,
pro-active judiciary and constructive media together may not produce
miracles but can certainly help common men to live with dignity.”
Let social happiness usher in from good conduct of all. As is aspired
in the ancient prayer,
Nyayena margena mahim maheesha
Lokaa samastha sukhino bhavantu.*
Delhi 1982) at pp. 5-10. Also see supra, Ch. 1.

in N.R. Madhava Menon (Ed.), Rule
iN, Vittal, “Corruption and the Rule of Law” .
New Delhi 2008) at pp. 131-32
of Law in a Free Society (Oxford University Press,
yak Publishers, Jodhpur 2008) at
2 Sukhdev Vyas, Justice Shiaraj V. Patil (Vina
|
p. 311.
let the whole universe be happy.
13. Let the ruler traverse the path of justice;
gone6ed bshoqquel.
prea eee
appeaash at thepases rasa relies on.and. spurs. |

Ciganised . endesvoursof vivil society. have.
wittarien Seaport. i thee evolintion and inmlements
‘cancebew's.kA 8
OCHO Seng: from state's escapist
od by ;x
PS, charitab 5
vias,tee oe RORY Hol) vigrees

satu} Het WV tases,
2or' ect 2c! Fl =
whee hi sated ee phe eee PAISHS S28 ht Soto orien

os ee G8 osohne Sepeee Hie oyisesessree) Yolesniiel
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eG* ee a é
SUBJECT INDEX
A ADVERSARIAL SYSTEM, 858-859

AGRARIAN REFORM COMMITTEE, 763
ABDUCTION, 589-90 AGRARIAN REFORMS, 10, 13, 25, 33, 35,
ABOLITION
758-73
- female infanticide, 102-03, 564-66 AGRICULTURAL LABOUR, 793-94
- intermediaries , 761-63 AGRICULTURAL MARKETING, 787-90
- sati, 104-06, 559-63
AGRICULTURE, 773-74
- tenancy, 766-67
ALL INDIA RuRAL CREDIT SURVEY, 775
ABORTION, 18, 20, 45, 46, 566-68
AMELIORATION OF WOMEN, 138-39, 517-
ACCUSED PERSON’S RIGHTS, 821-25
52
ACTIVISM, JUDICIAL, 210-213 ANCIENT INDIA, LAW AND SOCIAL
ACKNOWLEDGEMENT, 745 TRANSFORMATION, 72-88
ADIVASIS, 431, 762 ANGLO-INDIAN CONSTITUTIONAL EXPERI-
ADOPTION ENCES, 173-77
- inter-country, 630-640 ANTI-UNTOUCHABILITY, 136-37, 470-72,
- personal law, 627-630
487
Bill, 2006, 640
Atrocities AGAINST SC/ST, 477-84
Laxmi Kant Pandey guidelines, ANTINOMIES, 39
634-38 ARBITRATION, 875-79
ADR (ALTERNATIVE DISPUTE
ARISTOTLE, 2, 22, 39
RESOLUTION)
ARTICLES OF THE CONSTITUTION OF INDIA,
concept, 871-73
Art.14, 190, 274, 300, 532-33, 484
background and means, 872-73 Art.15, 190, 199, 259, 389, 468, 486-90,
CPC amendments, 874-75
532-33, 535-36
arbitration, conciliation, Mediation
Art.16, 190, 259, 300-301, 389-91,
and Lok Adalat, 875-82 486-90
consumer grievance redressing, 883 Art.17, 190, 467-68
ADULTERY, 46, 593 Art.19, 198, 340, 342, 389
ae <<
Se aE
ARTICLES OF THE CONSTITUTION OF INDIA

BREAD LABOUR, 135
(contd.) BRUNDTLAND CoMMITTEE, 66, 806
Art.21, 370, 372, 546, 722-24
Art.21-A, 261, 340, 653, 670
Art.22, 372 %
Art.23, 541
Art.25, 238-39, 259 CASTE
- as a divisive factor, 456-65
Art.27, 190, 239
- as a factor to undo past injustices,
Art.29, 259-60, 295, 321-323, 347-48
Art.30, 259, 295, 322-23, 347-48 485-90
Art.31, 197, 198
- based identification of backward-
Art 32, 191, 539, 548, 861 ness, 488-95
Art.38, 200
- non-discrimination on grounds of
Art.44, 671, 716-17 465-84
Art.45, 651-53 CASTE BASED QUOTA SYSTEM, 16, 511-12
Art.46, 449, 672, 905 CASTISATION, 456-57, 465

Art.51-A, 260, 672-73 CEDAW, 525, 556, 705
Art.330, 469 CEILING ON AGRICULTURAL LAND HOLD-
Art.332, 469 ING, 768-71
Art.335, 199 CHAMBAL VALLEY DACOITS, 149-50
Art.341, 498-99 CHAMPARAN MOVEMENT, 761
Art.342, 416 CHANGE
Art.347, 293 change of heart theory, 130-33
Art.348, 307, 309, 367, 369 CHARITABLE INSTITUTIONS, 81
Art.350, 323, 324, 333, 337, 347 CHRISTIAN LAW OF INHERITANCE, 740-41
Art.368, 203
CHILD EDUCATION, 201, 651-60
Art.371, 384, 391-92
CHILD LABOUR, 48, 191, 610
Art.372, 194, 391
CHILD LABOUR , CAUSES, 611-12
AryYA SAMAJ, 101
CHILD LABOUR, JUDICIAL APPROACH,
ASAMIS, 762
620-24
ASSIMILATIONIST THEORY, 414
CHILD LABOUR, NATIONAL PROGRAME OF
ATROCITIES, 477-79
ACTION, 624
CHILD, SEXUAL ABUSE AND LAW, 640-50
CHILD LABOUR, ROLE OF NGOs, 625-26
B CHILD LABOUR AND HUMAN RIGHTS,
BACKWARD CLASSES, 463, 485-92, 493, 612-15
509 CHILD LABOUR PROHIBITION, 617
BALANCING APPROACH, BALANCE CHILD LABOUR REGULATION, 618-19
BETWEEN ENVIRONMENT AND DEVEL- CHILD MARRIAGE, 108-10
OPMENT, 804, 812-15 CHILD PROSTITUTION AND LAW, 641-48
BANGALORE DECLARATION, 677 CHILD WELFARE, 609, 742-45
Basic STRUCTURE THEORY, 202-08 CHRISTIAN LAw, 717, 734, 740-41
BHAKTI MOVEMENT, 92, 234-35 CHRISTIAN MARRIAGE, 717, 734
BHOODAN MOVEMENT, 145-46 CIVIL RIGHTS, 473-77
BHUMIDARS, 762 COLLECTIVE DUTIES AND RIGHTS, 77, 80
BuurIA COMMITTEE, 447 COLLECTIVISM, 39, 78-80
BIGAMy, 592, 726-29 COLLECTIVISM, SCHOOLS OF, 79
BONUS STRUGGLE, 157 COLONIAL LAW AND ECONOMIC EXPLOITA-
BoREWELLS, 783-84 TION, 94-96
Subject Index 969
cha clei hie eae rrr
COMMOr HERITAGE OF MANKIND, 679
CULTURAL FEMINISTS, 520
COMMUNAL HARMONY, 21, 138, 252-55 CULTURE, 49, 52, 54, 56
COMMUNAL RIOTS, 251 Customs
COMMUNALISM, 250-56 -ancient Indian, 86-88
CoMMUNISM, IN INDIA, 151-56 -law, tribal, 440-44
COMMISSIONER OF LINGUISTIC -social transformation, 11
MINORITIES, 311-12
COMPARTMENTALISATION WITHIN THE
STATE, 399-400 D
COMPULSORY AND FREE EDUCATION,
651-60 Dacoits, 149
“Daurts, 467, 471
COMPULSORY MEDIUM, REGIONAL LAN-
GUAGE, 331-44 DAYABHAGA, 711-12
CONCERN AND CONSENSUS FOR JUSTICE, DECENTRALISATION, 901
DECLARATION OF ETHNIC DEVELOPMENT,
171-73
CONCILIATION, 879-80
421
CONSTITUTION AND LANGUAGE POLICY, DEFORESTATION, 437-38, 811-12
288-97 DELHI DECLARATION, 69
CONSTITUTION FOR SOCIAL TRANSFORMA- Democracy, 68-69, 888-90
TION, 190-96 -deliberative, 889
CONSTITUTION OF INDIA [SEE, ARTICLES
-participative, 898
OF THE CONSTITUTION] DEMOCRATISATION, 898-99
CONSTITUTIONAL AMENDMENTS, 196 DEMOCRATIC SOCIALISTS, 154-56
CONSTITUTIONAL AMENDMENTS FOR DEVADASIS, 242, 247, 468, 646-47
SOCIAL TRANSFORMATION, 196-202 DEVELOPED COUNTRY, 63, 688
CONSTITUTIONAL POLICY AGAINST RAPE, DEVELOPING COUNTRY, 688-91
581 DEVELOPMENT, TRIBAL, 444
CONSTITUTIONAL PERSPECTIVE OF MOD- DEVELOPMENTAL ISSUES AND LAW, 63-67,
ERNISATION, 667-73 753
CONSTITUTIONAL PROVISIONS ON WOMEN DHARMA
EMPOWERMENT, 532-49, 515, 522 - and royal ordinance, 73-74, 88
CONSTITUTIONALISM, 221-22 - importance to Indian legal system,
CONSUMER GRIEVANCE REDRESSAL 73
- meaning, 73-76, 85, 187, 709, 726
Forum, 883, 922
- to prevail on economic acts and
CONTRIBUTION OF GOVERNMENTAL
human desires, 85
ORGANS TO SOCIAL TRANSFORMATION,
DHARMASHASTRA, 169
208-13
DHARMASUTRA, 81
CONVERSION, RELIGION, 244
DIGNITY OF WORK, 135
Cow PROGENY PROTECTION, 668-69
DirECTIVE PRINCIPLES OF STATE POLICY
Cow SLAUGHTER, 669
AND SOCIAL TRANSFORMATION, 192-93,
COOPERATIVE FEDERALISM, 213-14
CoPARCENARY, 708-09, 735-39
548, 894
DISABLED PERSONS, 918
CorruPTION, 888, 939 DIvoRCcE, 725, 734
CREAMY LAYER TEST, SC,ST ,OBC & DoMESTIC VIOLENCE, 554-58
SEBC, 505-09 DomICILE REQUIREMENT, 398
CRIMES AGAINST WOMEN, 554-95
Dowry DEATH, 543
CRIMINAL PROCEDURE CoDE, 820, 847, Dowry HARASSMENT, 572
855, 874, 719
7
e FEMALE FOETICIDE, 545, 506-71

FEMALE INFANTICIDE, 102, 564-65
EARTH SUMMIT, 806 FEMINIST JURISPRUDENCE, 517
ECONOMIC JUSTICE, 753 FEMINIST
ECOSOC, 677 -cultural, 517
EDUCATION, GLOBAL POLICIES, 325-30 -liberal, 518
EIGHTH SCHEDULE, 297, 308 -radical, 519
EMPOWERMENT, 454-55, 523-24 FERTILISER LAW, 782
EMPOWERMENT THEORY, 523 FIRST LANGUAGE POLICY, 344-48
ENDOWMENTS, 82 FOREIGN TRADE, 682
ENGLISH LANGUAGE, UK ExPERIENCE, 364 Forest DWELLERS’ RIGHT, 431-37
ENVIRONMENT FORMS OF GENDER INJUSTICE
-degradation, 805 -cultural imperialism, 522
-development, and, 806 -exploitation, 521
ENVIRONMENTAL PROTECTION * -marginalisation, 521
-balance with economic development, -powerlessness, 522
804 -violence, 522
- bottom up approach, 913 FORMATION OF LINGUISTIC STATES, 279-87
-principles, 815 FREEDOM MOVEMENT, 112-15, 172
ENVIRONMENT IMPACT ASSESSMENT, 815, FREEDOM OF SPEECH, 309-10, 331
919 FREE TRADE, 679-85, 791
Equa ity [SEE, ARTICLES 14-17] FUNDAMENTAL DUTIES [SEE, ARTICLE
EQUALITY CHARTER
51-A]
EQUAL LANGUAGE RIGHT, 274
ETHNIC PLURALISM, 405, 413, 418
ETHNICITY, 249, 405 G
EVOLUTIONARY THEORY, 25
EXPLOITATION OF INDIGENOUS PEOPLE GANDHIAN ECONOMICS, 134, 759
-by moneylenders, 439 GANDHISM, 129
-by intermediaries, 439 -change of heart theory, 130, 138
-communal harmony, 138
-gram swaraj, 139
-sarvodaya, 141
-trusteeship, 134
FAMILY LAW -untouchability, 136
-basis, 701 -women, 138
-culture’s impact, 706 GATT, 681
-multiplicity, 706-15 GENDER JUSTICE, 515-17, 532, 550, 911,
-attempt at Uniform Civil Code, 922
716-17, 746-48 GLOBAL POLICY AND LANGUAGE, 325-30
FAMILY GLOBAL POLICIES, EDUCATION, 325-30
- foundational social unit, 703
GLOBALISATION, 62, 686-91
-human rights dimension, 705
Gokak Comm Ire Report, 331, 341
- religious dimension, 706
Gora SINGH ComMITTEE, 257
FARMER'S RIGHTS, 778-80
GRAM PANCHAYAT, 906
FARMER'S SUICIDE, 798-99
GRAM SABHA, 161, 448, 907-08
FEDERALISM [SEE, COOPERATIVE
GRAM SHANTI SENA, 160-61
FEDERALISM]
GRAM swaRAJ, 130, 139, 898
FEE DISPARITY, 396
Grama Nyayataya, 883
Subject Index
ee “=, 971
GREAT DEPRESSION, 680
IRRIGATION LAw, 782
GROUND WATER, 783
H
JAGIRDARS, 760
Habeas Corpus FOR WOMEN’S PROTEC- JHUM CULTIVATION, 438
TION, 539 JUDICIAL APPROACH
HINDI LANGUAGE, 312 -adoption, 630-35
HINDv FAMILY, 708 -caste and untouchability, 482
HuMAN RIGHTs -child labour, 620-23
-impact on social transformation, 673 -education, 315, 331-44, 651
-international law, 673-74 -environmental protection, 815
HuMANISATION, 773-74 -land reform, 772-73
-language rights, 298, 331-44, 367
-public employment, 492
I -tribal development, 448
JUDICIAL ACTIVISM, 11, 208, 860
IDEA OF TOTAL REVOLUTION, 146 also see, Public Interest Litigation
IDENTIFICATION OF BACKWARDNESS, 485- JUSTICE TO VICTIMS
90 -concept, 845
ILO, 419, 420, 424, 612 -Law Commission on victim compen-
IMporT AND Export, 682-84 sation, 854
INDECENT REPRESENTATION OF WOMEN, -legislative scheme for victim com-
-beauty contest, 46 pensation, 847
-prohibition of, 595 -victim compensation under
INDIA AS ONE UNIT, 382-84 Constitution, 851
INDIAN PENAL CODE, 581-93 -victims right to participation in
INDIGENOUS CONSTITUTIONAL DRAFTS, judicial proceedings, 857
177 JUSTICE
INDIGENOUS PEOPLE, 418 -and law, relation, 22
INDUSTRIAL Po.icy RESOLUTION, 1956, -desert theory of justice, 937
800-02 -distributive, 23
-natural, 179
INDUSTRY POLICY STATEMENT, 800-04
-social, 22-24
INDUSTRIAL REFORM
-social good theory of justice, 936
-free enterprise v/s regulation, 800-04
JUVENILE JUSTICE, 639
INNER RESERVATIONS OR MICRO CLASSIFI-
CATION, 496-05
INQUISITORIAL SYSTEM, 858
INSTITUTIONAL PREFERENCE, 401
K
INSTITUTIONAL REFORMS, 819 KALivarjyA, 84, 87
INTERGENERATION EQUITY, 812, 815 KarTA, 708-09, 735
INTERNATIONAL LAW, HUMAN RIGHTS OF KayakA, 89-90, 754
WOMEN, 525 KHUDKAST, 762-63
INTERPRETATION, 214-18 KIDNAPPING, 589-90
INTER-STATE MIGRANTS, 793 KNOWLEDGE SYSTEM OF LAW IN REGIONAL
INSECTICIDE, 782 LANGUAGE, 377-78
IPR, 688, 695 KoL MUTINY, 408
IRRIGATION, 782
a ———
L MALGuzars, 760
MALIMATH CoMMITTEE Report, 856-58
LAND REFORMS, 758-72 MarkKET, 8
LANGUAGE AND EDUCATION, 293, 315, MARXISM IN INDIA, 151-55
326, 331 MEDIATION, 881
LANGUAGE AND PUBLIC EMPLOYMENT, MEDICAL TERMINATION OF PREGNANCY,
298-305 566-67
LANGUAGE AND STATE FORMATION, MEDIEVAL INDIA, 90-92
279-87 MICRO CLASSIFICATION, 496-98
LANGUAGE AND SUPREME Court, 367-71
MINIMUM WAGES, 793
LANGUAGE BASED DISCRIMINATION,
MINOR FOREST PRODUCE, 433
298-305
MInoriTIES COMMISSION, 260-62
LANGUAGE , CANADIAN EXPERIENCE, 364
MINORITY EDUCATIONAL INSTITUTIONS,
LANGUAGE PLANNING, 267
263
LANGUAGE
MITAKSHARA, 357, 714
-in High Courts, 368
MODELS, SOCIAL TRANSFORMATION
-in subordinate courts, 294, 363, 373
- applications of, 29
-in Supreme Courts, 367
- conflict model, 26
LANGUAGE RIGHTS AND DUE PROCESS
- consensus model, 25
NORMS, 372
- Indian approach, 32
LANGUAGE UNIFYING AND DIVISIVE FEA-
- integrated model, 28
TURES, 270-73
- Western approach, 30
Law, 2-7
Mopern INDIA, 94-117
Law AND CusToM, 86-87
Mope_ErRNITY, 663-67
Law AND ECONOMICS, 66-67
MODERNISATION AND LAW, 663
Law AND MORALITY, 43-46
MODERNISING IMPACT OF INTERNATIONAL
LAW OF AGRICULTURAL MARKETING,
LAW, 674~78
787-90 MOHAMMEDAN CONQUEST, 89
Law OF INSECTICIDES, 785-86
MOHAMMEDAN FAMILY, 712
LARGE DAMS, 808-10
MONEYLENDERS, EXPLOITATION, 775-77
LEGAL PLURALISM, 934-35
Mora ity, 43-46, 247
LEGAL SYSTEM, 7-12
MOTHER TONGUE INSTRUCTION, 318-20
LIBERALISATION, 682-84
MRTP, 684
LINGUISTIC HAVE-NOTS, 302
MULTICULTURALISM, 58-62, 249, 895
LINGUISTIC MINORITIES, 311
MARRIAGE LAW
LOCALS ONLY ADMISSION RULE, 395-402
-bigamy, 725
Lox ADALAT, 882
-divorce, 735
LoxavipvisTA, 84
-maintenance, 719-24
LEGISLATURE’S ROLE -registration, 730
-international policy, 898
-multiculturalism, 895
-national unity, 895
-panchayati raj institution, 898
N
-promotion of unity and welfare, 894 NaTIONAL AGRICULTURAL PoLicy, 797
NATIONAL CuiLp LABourR Projects, 610,
612, 624
M NATIONAL COMMISSION FOR BACKWARD
CLASSES, 509
MAINTENANCE LAW, 538, 719-24, 735
Subject Index
Se ene 973
NATIONAL ComMISSION FOR CHILDREN,
PANCHAYATI Raj INSTITUTION (contd.)
624 - constitutional amendments, 906
NATIONAL CoMMISSION FOR WoMEN,
- decentralisation, 899
601, 923 - historical; 902
NATIONAL COMMISSION ON REVIEW OF - suitability for social transformation,
WORKING OF CONSTITUTION, 201 906
NaTIONAL Labour Com ISsSION, 624 PATRIARCHY, 54, 706-07
NATIONAL POLICY ON EDUCATION, 920 PeopLe’s War Group, 1 56
NATIONAL RuRAL EMPLOYMENT PLANT VARIETIES, 778
GUARANTEE, 924 PLEA-BARGAINING
NATURAL LAW, 3 -concept, 825
NAXAL MOVEMENT, 156-60 -Indian development, 830
NAXALISM, 156 -pros and cons, 827-28
NGOs (NPO anp THIRD SECTOR)10, 24, -statutory scheme, 832
57, 625-26915
, PLURALISM, 2, 749, 934-35
NON-BIRTH ENTRY INTO CASTE, 503-05 PNDT, 566-70
NON-GOVERNMENTAL EDUCATIONAL POLLUTER PAY PRINCIPLE, 816-17
INSTITUTIONS, 920 PORNOGRAPHY, 547, 595
NOT FOR PROFIT, 9 PRECAUTIONARY PRINCIPLE, 816
NyayA PANCHAYAT, 820 PRECEDENTS, 10-11
PRIMARY EDUCATION (SEE-CHILD
EDUCATION)
O PRISON REFORMS
-handcuffing, 839
OFFENCES AGAINST CHILDREN UNDER IPC,
-health, 840
649-50 -historical, 834
OFFENCES AGAINST MARRIAGE, 591 -International Human Rights, 836
-adultery, 992 -overcrowded jails, 838
-bigamy, 592 -prison wages, 842
-fake marriage, 592 -reformation of a prisioner, 844
OFFENCES AGAINST WOMEN, 553 -sanitation, 840
ORIGINAL INTENTION THEORY, 216 PRIVATE SECTOR, 511
OVERCROWDING OF PRISON, 838 PRIVATISATION, 685
PROCEDURAL DUE PROCESS, 540
PROGRESSIVE INTERPRETATION, 214
P PROPERTY AMENDMENTS, 197
PANAMA DECLARATION, 421 PROSTITUTES, CRIMINALISATION, 591, 541
PANCHASHEEL, 416 PROTECTION OF CHILD PROSTITUTES, 541
PANCHAYAT EXTENTION TO SCHEDULED PROTECTION OF CIVIL RIGHTS, 473
AREA PROTECTION OF HUMAN RIGHTS, INDIG-
- economic development, 909 ENOUS PEOPLE, 418
- empowerment of SC/ST and weaker Pustic INTEREST LITIGATION, 208, 859
section, 910 - concepts, genesis, growth, 860
- gender justice, 911 - contribution to substantial law, 866
- gram sabha, 907 - future prospects, 868
- local self-governance, 912 - nature, objectives, 863
- social justice, 909 - procedural innovations, 864
- social benefits, 859, 868
PANCHAYATI RAJ INSTITUTION, 898
- concept, 899 Pusic Trust THEORY, 815
974, Law and Social Transformation in India
~~
PURPOSIVE INTERPRETATION, 215 RESERVATION

-constitutional policy, 199
-for women, 551
-in private educational institutions,
Q 511-12
QUORANIC LAW, 720, 721, 739 -in private sector, 511
Quota, 492, 493 -time limit for, 510
RESERVATION POLICY AND AMENDMENTS,
199
R REVERSE SANSKRITISATION, 465
RIGHT OF MOTHER, 564
RACIAL DISCRIMINATION, 418
RADHAKRISHNA COMMITTEE ON FARMERS’
RIGHTS OF ACCUSED, 821-24
SUICIDE, 798 RIGHTS OF CHILD, 608-10
RAJINDER SACHAR COMMITTEE REPoRT, RIGHT TO CONSTITUTIONAL REMEDY, 548
256 ; (SEE, ARTICLE 32)
RAMACHANDRA Raju COMMISSION RIGHT TO DIGNIFIED LIFE, 537 (SEE,
REPorRT, 496 ARTICLE 21)
RAPE RIGHT TO EDUCATION, 295 (SEE, ARTICLE
-constitutional policy, 546 21-A)
RAWLSIAN SEQUENCE OF MAKING A RIGHT TO INFORMATION, 925
CONSTITUTION, 170 RIGHT TO MAINTENANCE, 538 (SEE,
READING DOWN, 218 MAINTENANCE)
READING uP, 218 RIGHTS
REASONABLE CLASSIFICATION TEST, 501 -education, 654
REFORMS OF LAW ON SECULAR LINES, 248,
-employment, 190, 259, 301
-equality, 190, 300, 532-33 (See,
717
Article 14)
REFORMS, ECONOMIC LEGISLATION, 733
-health, 201, 340
REGIONAL BARRIERS, 386
-livelihood, 201, 340
REGIONAL LANGUAGE, KNOWLEDGE SYS-
-shelter, 201, 340
TEM, 377
-use language, 295
REGIONALISM, 279-93
Rio DECLARATION, 806
REHABILITATION, 591
RURAL INDEBTEDNESS, 775-77
REHABILITATION OF CHILDREN, 742
RYOTWARI SETTLEMENT, 760, 772
REHABILITATION OF PROSTITUTES, 541,
593
RELIGION
-and development, 229 S
-as divisive and unifying factor, SADACHARA, 55
226-29 SANSKRITISATION, 119
-cultural importance, 225 SANTHAL REBELLION, 409
-meaning, 226 SARKARIA COMMISSION, 201, 302
RELIGIOUS CONFLICTS, 232 SAROJINI MAHISHI COMMITTEE REPORT,
RELIGIOUS FREEDOM (SEE, ARTICLES 25,
304
26, 28) SARVA SHIKSHANA ABHIYAN
RELIGIOUS MINORITIES, CONSTITUTIONAL SATI, ABOLITION OF, 38, 104, 543,
PROTECTION, 249-59
559-563
RELIGIOUS PLURALISM, 226 SATI, PROHIBITION OF GLORIFICATION,
REORGANISATION OF STATES, 279-87 562-63
Subject Index 975
SE a ashlee et nn
SARVODAYA, 141-50 SRuTI, 83

SCHEDULED CASTES STABILITY AND CHANGE, 39
-alteration of list, 498 STARE DECISIS, 10
-creamy layer test’s application, 505 STATE REORGANISATION COMMISSION,
-inner classification, 496-02 283
-reservation, 496 STATE-TRIBE RELATIONSHIP, 413-17
SCHEDULED TRIBES STATUS QUO, 48, 428
-reservation, 448 STRIDHANA, 736
-welfare, 448, 477
STRUCTURAL ADJUSTMENT PACAKAGE, 683
SCIENTIFIC TEMPER, 672
SUCCESSION
SECULARISM, 232-37, 248, 489 -Hindu Succession Amendment Act,
SECURITY AGAINST INSURGENCY, 444
=e
SECURITY OF LAND, 424-29 -intestate succession, 739
SECURITY OF TRADITION, CUSTOM AND -Quranic principles succession, 739
IDENTITY OF TRIBALS, 440-43 -testamentary succession, 739
SEEDS, 778-79 SUPERVISORY ROLE OF COMMISSION OF
SELF-GOVERNMENT, 444, 912 Lincuistic MINORITIES, 311
SEXUAL EXPLOITATION, 593, 640-48 SUSTAINABLE DEVELOPMENT, 806-07
SEXUAL HARASSMENT IN WORKPLACE, 597 SWADESHI, 115, 135
SEXUAL OFFENCES, 581-89
SEZ, 803-04
SIMON COMMISSION, 425 +
SIRDARS, 762
TAKSHANA KARYAKRAMA, 160
Smrirtl, 83, 106, 528
TALUKDARS, 760
SOCIAL BASIS OF FAMILY LAW, 701-02
TE-BHAGA MOVEMENT, 767
SOCIAL CONTRACT, 3
TECHNOLOGY AND LAw, 692
SOCIAL ENGINEERING, 5, 31
TECHNOLOGY
SOCIAL FACE OF INTERNATIONAL LAW, 673 -environment, 694
SOCIAL JUSTICE, 18, 22-23, 448, 909 -IPR, 695
SOCIAL JUSTICE FOR TRIBAL DEVELOPMENT, -morality, 697
448 -security, 697
SocIAL TRANSFORMATION TENANCY REFORMS, 763
-continuous and discontinuous, 20 TESTAMENTARY AND INTESTATE SUCCES-
-culture and competence, 49 SION, 736-39
-culture and law, 52 Tuirp Sector (NGO)
-evolutionary and revolutionary, 20 -consumer protection, 922
-multiculturalism, 58 -education, 920
-stability and transformation, 39 -environmental protection, 919
-value orientation, 22 -gender justice, 922
SOCIAL -health, 917
- disorder, 89 -human rights, 917
- life, 89 -protection of children, 625, 922
- solidarity, 89 -welfare of disabled, 918
Society, 8, 11, 15, 72, 130 THIRD WORLD COUNTRIES, 675~76
SOCIOLOGICAL DISCOURSE, 118, 244 Tota REVOLUTION, 146
SOLITARY CONFINEMENT, 839 TRIBAL DEVELOPMENT, 444, 448
SONS OF THE SOIL, 389 TRIBES, 428-29, 432-33
SPECIAL DIRECTIVES, 323-24 TRIPS, 688
~e
TRIVARGA, 85 W
WAGES, MINIMUM, 794, 842

U WAKES, 99
WIDOW REMARRIAGE, 106
UN CoNnvENTION ON RIGHTS OF CHILD, WoMAN, OUTRAGING MODESTY OF, 588
608-10 WoMEN, DEMOCRATIC PARTICIPATION, 551
UNESCO, 276, 278, 317, 319, 326 WoMEN EMPOWERMENT, 523-24
UnirorM Civit Cope Women, HuMAN RIGHTS, 525
-constitutional policy, 716 WoMEN, INDECENT REPRESENTATION,
-from Shah Bano to Danial Latifi, 719 547-595
legislative effort, 717 WorLp COMMISSION ON DAMS, 810
-renewed debate, 725 WTO, 335, 688, 791, 898
UNO DECLARATION ON RIGHTS OF
WTO Anp INDIAN AGRICULTURE, 791
PERSONS BELONGING TO NATIONAL OR
ETHNIC, RELIGIOUS AND LINGUISTIC
MINoRITY, 1992, 250, 278, 299 Y
UNORGANISED SECTOR, 794
UNORGANISED WORKER, 794 YAJNAVALKYA, 357
UNTOUCHABILITY, 136, 179, 470, 482
Ze
V
ZAMINDARI, 39, 111, 187, 408, 410, 760,
VACHANA, 528 762, 765
VEDIC LITERATURE, 90 ZILA PANCHAYAT, 178, 906
VEERASAIVA MOVEMENT, 89
VICTIMOLOGY, 854-57
VISHAKA GUIDELINES, 597-600
Purchased:
“5, ocaad ae = hRealamiri

Narayan Rao Meigiri
Nationa! Law Libr
NATIONAL LAW SCHOOL OF INDIA
UNIVERSITY LIBRARY
NAGARABHAVI, BANGALORE - 560 072.
This book must be returned by the date stamped below
Agee
| os 2
P.T.O.
:‘>
andCaltvtonicahcn themodem World isscacasd tostupendous change to.
= ‘which Societies -experience, ‘respond .and assimilate with appropriate
~ policicles. Given thediversities. in
nour sealsthe task ofsides transformation |
AS awesome andcomplex. 3 |
inthe present wore Law bag Social Fanumation in india, Dr. P. Ishwara
Bhat expertly puts forward optimistic signs of the indian legal system's
competence to both lead and follow social transformation with an admirable
commitment to multiculturalism, empowerment and sober modernism.
Amidst diverse approaches about relations between law. and. social
transformation, he inclines to adopt a holistic analysis and prefers an activist
role for the State and citizens. Major spheres of pluralism, empowerment
and
modernisation, are traversed in the course of the discussion where
the
present work touches upon.a large spectrum of human and social actions.
This work is sure to inspire further thinking about law and societ
y's active
partnership in social transformation. The book will benefit studen
ts and
teachers of law and sociology, lawyers, judges, legislators, social
activists.
NGOs, administrators, policy makers in the government and the
general
public ofthe country.
About the Author:

Dr.-P; Ishwara’ Bhat, (M;A. LE-M., PhD. ‘Professor of Law
at University of Mysore
has. teaching experience for threé decades. He was
Visiting Professor at Queens
University, ‘Kingston; Canada: in 2009 to deliver lectur
es on Comparative Legal
Tradition. He-was Shastri Visiting Research Fello
w in Canada in 1992. He has
‘completed 3 international and:3 national research projec
ts, guided 10 researchers
for their Ph.D. and participated jina numberof national and:in
ternational conference
s
+. and seminars. He: served.as Dean andActing Vice
Chancellor of University of Mysore
and contributed to
drafting ofBillsforGovernment of
a Rerhalaka.. 2
I):
ISBN: 93-502

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LAW

EASTERN BOOK COMPANY

Shop online at: www.ebcwebstore.com..

Allrights reserved. No part of this work may be copied, reproduced, pinirsk oo

So ee oa mistake or omission, this publication is being sold

AM DEEPLY delighted to indite this Foreword to the book Law and

not as a charity, but as an obligation. Modernisation, Privatisation,

Justice Dr. Suivaray V. Pati

OCIAL TRANSFORMATION is a wide and complex subject

transformation. The Tughlaqian question, “How to split branches in

14 April 2009 P. IsHWARA BHAT

1 Law and social transformation: a theoretical discussion 1

5 Religion and law 225

11 Caste, law and empowerment of the backward classes 453

TABLE OF CASES XXXIII

TABLE OF STATUTES XLVII

1 LAW AND SOCIAL TRANSFORMATION: A THEORETICAL

3 ALTERNATIVES TO LEGAL STRATEGY: GANDHISM,

CONSTITUTION’S ORIENTATION AND RESPONSE TO SOCIAL

5 RELIGION AND LAW 225

7 LANGUAGE RIGHTS IN EDUCATION 315

10 ETHNIC PLURALISM, TRIBAL DEVELOPMENT AND SOCIAL

11 CASTE, LAW AND EMPOWERMENT OF THE BACKWARD

12 CONSTITUTIONAL POLICY AND DEVELOPMENT TOWARDS

15 MODERNISATION AND LAW 663

16 FAMILY LAW, MODERNISATION AND SOCIAL

17 ECONOMIC DEVELOPMENT, LAW AND SOCIAL

17 ECONOMIC DEVELOPMENT, LAW AND SOCIAL

18 REFORMSIN THEJUSTICE DELIVERY SYSTEM,

19 ROLEOF DEMOCRACY, PANCHAYATI RAJ AND NGOS IN

Bombay Environmental Action Group v. State of Maharashtra, AIR 1991 bie

P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578

State of Madras v. Champakam Dorairajan, AIR 1951 SC 226 199) 549

Adoption Act, 1958 (UK) , : 631

Bonded Labour System (Abolition) Act, 1976. . 793, 885, 893

Factories Act, 1948 615, 694, 894, 916

Hindu Adoption and Maintenance Act, 1956.

Legal Services Authority Act, 1996 ‘ . 895

Madhya Pradesh Agricultural Cattle Preservation Act, 1959 . 894

National Rural Employment Guarantee Act, 2005. . 202, 893

Official Languages (Amendment) Act, 1967 . - 907

Payment of Bonus Act, 1965 . 894

ae (Prevention and Control of Pollution) Act, 1974 814, 894, 919

LAW AND SOCIAL TRANSFORMATION:

1.2 Law asa social device

A good starting point for law-society discourse is to address into the

nature; it is of universal application, unchanging and everlasting; it

4 Cicero, De Republica, Vol. II at p. 22 extracted in MDA Freeman, Lloyd's Introduction

Utilitarianism is another school of law, which focused on purpose.

the legislator.” Realists looked to the judicial or legislative process

1.3 _Legal system as a purposive enterprise — a

Friedmann looks to the structure, substance and culture of the legal

review of public action. All the sources of law—legislation, precedents

42 See infra, Ch. 4.

Looking to the requirement of participatory affair in the process of law

1.4 Social change or transformation?

1.4.1 Meaning and significance

deliberatel conceived , its contours should be designed and its scheme

of interaction build up its basic characteristics. Language, reli ion,

private powers, which the society conglomerates, coordinates and bal-