Dean Roscoe Pound is considered to be a great author in ...

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Reading material on Law and social transformation

Prepared by Dr. Sanjay V. Jadhav,Assistant Professor,Department of Law.

Dean Roscoe Pound is considered to be a great author in sociological

jurisprudence. He introduce theory of social engineering. According to this` theory,

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welfare of the people is an alternate purpose of any legislation. If any law is not in

position in achieving the social well being such legislation will be ineffective thus if any

law is not in position to make any positive social change than would not be any use of

enacting such legislation.

In Indian society, their are certain legislation who made positive changes in the

society, for instances, prohibition of sati act, child marriage restrain at etc. Therefore

according to theory of social engineering law is regarded as an instrument of social

change. According to Roscoe Pound, law is an important instrument of social

Engineering.

Sociological Jurisprudence

Dean Roscoe Pound is called the father of American Sociological Jurisprudence.

He borrowed his view partly from ehrlich sociology of law and partly by adopting theory

of interests. According to him, law is an important tool of balancing the interest of all

sections of the society and achieving well being of maximum people in the society. He

categorically stated that the main function of the law is to attend maximum social

welfare. Thus, law is ultimately inacted to fulfill the wants of the maximum people.

As already stated he was considered to be father of social engineering which

essentially originated from America. During his childhood, in the United States of

America, due to Scientific, it technological and Industrial development, it generated

maximum amount of wealth, the problem than aroused how to distribute such wealth

among the different sections of the society, therefore, at that time, law was found to be

effective instrument in distribution of assets, in controlling the social desire and in

satisfying the wants of the maximum people in the society. Therefore, what follows that,

law should be enacted in such a manner which will ultimately serves it purpose for which

it was actual enacted. Thus law if he does not bring out the social change and if it is not

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in position in achieving the welfare of the society, than such law will simply regarded

piece of paper.

The approach of Roscoe Pound was different from the others of analytical school

of jurisprudence.

The approach of Roscoe Pound was quite practical and realistic according to him

law will futile if it failed to serves its purpose for which it was enacted.

Roscoe Pound view that before enacting any law, its social aspect need to be

consider so that it will achieve the greatest well being of the society. The authors like

Spencer & Bentham who also advocated that law is ultimately made for the benefits of

the society.The pound was of the opinion that expectation of the people should be

fulfilled with the help of the law, which will result into social welfare and balancing the

interest of the different sections of the society.

Roscoe Pound was also recognized the rights of the weaker section of the society

for persistent and long term stability in the society. It is very much true that if the rights

of the weaker sections could not be fulfilled by an legislation than it will result into great

imbalance of the society and which was also result into violent poverty in the society.

This will result into rapid grow of anti social activities in the society. Therefore law not

only ensure the social welfare but also maintains law and order of the society. Thus

sociological school of jurisprudence put more focus on the welfare of the society which

can be achieve by means of effective legislation. Hence it considers law as an important

technique of social change. According to this school, ensuring the social welfare and

maintaining law and order are the ultimate functions of the law.

The Roscoe Pound specifically was consent with the satisfaction of social wants

and ensuring social justice. Thus, his view regarding the law was more conceptual in

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nature whereas were as views of the author like Austin of analytical school of

jurisprudence basically consider law as in its abstract nature.

Sociological school of jurisprudence expected the legislature, the judicial and the

executive organs of the state to perform their functions in a such a manner which would

attend the purpose of ensure the social justice and in achieving the social welfare. The

view of social school of jurisprudence ultimately focused on the concept of welfare state

which ensures not only economical justice but also ensure. social and political justice

which could be done by means of effective legislation.

Although for the development any nation freedom to contract by any individual is

very essential but this kind of freedom results into inequality income and wealth. Adam

Smith in 19th century Adam Smith advocated individual freedom of contract which

resulted into lesser fair policy which means minimum govt. interference. This philosophy

in 19th century found to be very much useful for industrial development but latter on it

resulted into exploitation of masses by the classes and concentration on income and

wealth in the hands of few people. Therefore, the 20th century the concept of social

engineering as advocated by Roscoe Pound became more effective for maintaining

balance among different sections of the society and to maintain such balance law became

on of the effective technique.

Thus, the philosophy of welfare state is an effective idea introduce by sociological

school of jurisprudence which was essentially similar to ethical school of jurisprudence.

India which was historically concern with welfare of the people but even in the

ancient period the role of state was confine to protecting the life of the people from the

external war, when India got political independence in 1947 even at that time the role of

state was essentially confined with difference and maintaining law and order in the

society but gradually this approach was change and more focus put on the concept of

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welfare state. Indian constitution under its chapter on directive principle policy of the

state which recognizance the model of welfare state. It try to ensure not only economical

justice but also try to insure social and political justice. Which ultimately aims at

achieving the maximum welfare of the maximum people.

Presently, the role of the govt. is not only to protect the life of the people but also

to ensure the maximum welfare of the people by means of effective legislation. Here, the

term govt, should be interpreted in a broader scene to include legislative judicial and

exceptive organs of the state. Fiver, in his famous book, describes govt. as being “the

system of functions and machinery established by any society for the supreme and

ultimate control of all individuals and groups within its territory”. Further, administrative

authority is nothing but scientific branch of the executive organ of the state which

ultimately frames the policies and implement those policies which are made benefits of

the people. Hence, they are actually responsible for the welfare of the people. Art 13 of

the constitution of India broadly defines the term of law to include, legislation,

judgement, orders circulars and notifications issued by competent executive and

administrative authority. Many time, effective policies are framed to implement

effectively government issues,circulars, and notification which has a source of law. Thus,

circulars orders and notifications is also regarded as effective menas of legislation which

can become important tool in achieving the welfare of the people. Hence, such circulars

and notifications should not be arbitrally, unjust which will cause unnecessary hardship

on the people. As noted already even judgement delivered by superior court is regarded

as law, for instance, judgement delivered by the S.C. becomes the law of the land in view

of article 141 of the constitution of India. Judiciarist in India, have played dominant role

in protecting and preserving the human rights of the masses (poor). Judges of the India

delivered historical judgements on the basis of public interest litigation filed by the social

activities, which even as on today regarded as law of the land, for instances judgement of

the S.C. in the case of Vishakha and Others V/S state of Rajasthan on point of sexual

harassment of women, right to education as regarded as right to life in the case of Mohini

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Jain V/s. state of Karnataka, right to life to include right to livelihood as held in the case

of B.M.C. V/s Olga Terris are regarded protecting the human rights and ensuring the

welfare of the people.

Sociological school of jurisprudence do not make any hesitation in saying that the

judges should consider the consequences of judgement on the society delivered by him.

However, this proportion can’t be justified because Indian constitution also ensures the

independence of judiciary whereby judges are expected to perform their judicial task

without taking into account any social consequence of his judgement but when it comes

to custom and personal loss, judges need to consider the social consequence of the

judgement because laws are ultimately made for the benefits of the society. Thus

sociological school of jurisprudence directly or indirectly expect from the judiciary to

perform their task in a such a manner which will maintain the balance of interest among

different sections of the society. Further the real welfare of the people can be achieved by

framing effective policies, however mere framing of the policies will not serve its

purpose ultimately it lies in the hands of administrative authority because those policies

are ultimately implemented by the administrative authority, but oftenly it results into

misuse of such power by the administrative authority. Although, judiciary play an

important role by way of judicial check over the administrative action, as a result of

which the policies are executed properly in the light of particular legislation by the

administrative authority.

Thus, effective legislation, historical judgements, suitable, policies plays on

important role in social transformation and in achieving the welfare of people.

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2. RELIGION AND THE LAW

The constitution of India, in its preamble, categorically terms “Secular” which

mean the state will not profess any religion nor it provides any favouritism(facilities) to

any particular religion. India, although, adopted secular pattern of the state but still

religion as been consider to be one of the important factor in Indian legal system.

Religion essentially do talk about principles of morality. Some people says that in certain

community, in the name of religion, they give the teaching or training of destructive

practice which oftenly results into various kinds of high destructive activities in different

parts of the countries in the world, this results into violation of human rights of the

innocent people. Although in the adopted secular pattern in its constitution India but still

religion played and important role over the social economy and cultural rights of the

people. One thing is cleared that any activities in the name of religion which disturb the

human rights of the people must be prohibited.

Karl Marx, Categorically stated that religion is opium for the people, but still

importance of the religion can’t be ignore because by adopting the religions principles it

becomes easier to get the mental piece in the life of the human being.Religion is

necessary because of two reasons (1) certainty of death; (2) uncertainties of life. These

reasons create fear in human mind. The mind needs solace. The solace is sought in

religion.

Religion is also regarded as group activities and those who pursuit it give them

strong group identity. These group identity is very much necessary for the development

of any human being in a democratic country. Universal declaration of human rights

recognizes religious freedom as one of the important human rights. In a Indian

constitution under Art-25 to Art-28 religious freedom consider to be fundamental right.

The concept of religious freedom kept on changing from time to time. During the Age of

faith, it used to mean the freedom of the Church over the state and the individual.

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Presently religious freedom is understood as individual freedom regarding the choice of

his own religion. Thus presently any person may profess or practice any religion of his

own choice provided it should not be oppose to public policy.

In India there are different people professing and practicing their own religion and

distinning language and culture. Therefore it was highly desirable for India, to adopt

secular pattern of the state. The secular pattern of the state signifies that the state shall not

interfere day to day religious affairs of the individual.

On 3-4-1948, the constituent assembly passed a resolution which according to

K. M. Munshi, is a definition of Indian secularism : “Whereas, it is essential for the

proper functioning of democracy and the growth of national unity and solidarity that

communalism should be eliminated from Indian life.

The secularism certain approaches in western countries secularism is understood

as separation of wall between individual and religion, according to Hindi concept

secularism means co-operation and co-existence of all religion.

Secularism ensures the equality among all the sections of the society who are

professing and practicing different kind of religion. Thus the secular state does not

professes or prefer any particular religion. The principle in the US constitution is known

as the wall of separations. An Indian constitution religious minorities are entitled to

establish and administer educational institutions of their own choice.

The term secularism does not mean the state will not interfere with the religious

affairs certainly it may interfere with the religious affairs with the person if any practice

in the name of religion in injurious to the public at large. Although the secular state try to

ensure equality among different religions but it may not hold true it comes to India. The

Indian govt. codify most of the Hindu laws which were based on customs although it

brought uniformity in the Hindu law but it didn’t bring any uniformity with other

religion, therefore India, although secular, fail to ensure equality among different

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religions in the country. Although in a secular pattern of India’s, it is well understood that

the govt. of India will not prefer any religion by giving any special financial ends to any

religion thus most of the educational institutes are secular in nature which are aided by

the govt. but there are certain educational institute like Banaras Hindi Vishwa Vidyalaya,

Aligad Muslim University although they are religious in nature they are aided by the

govt. But, other than this two religious institution, it is expressly provided in the Indian

constitution that any institution receiving the aid from the govt. shall not discriminate any

person on the ground of any religion, further the constitution of India provides that in any

educational institute which receives the aid from the govt. their shall not be any

compulsion as to observance or practice of any particular religious institution. Thus to

this extent,India does recognize the principle of secularism in any educational intuitions.

Thus, one come can safely, say that the govt. of India try to maintain secularism

in the field of education, while taking about cultural secularism it will be necessary to

analys the historical background of India great Ashoka try ensure principle of equality in

the matter of religion, later on their was constant attack from the moghal but Akbar

perhaps was the best king in ensuring religious secularism, Aurangzeb’s dream of a

muslim India was countered by Marathas. Portuguese did not like the practice of muslim

therefore they started prosecuting the muslim ,the mistake of the Portuguese was realize

by the Britishers there for during the British rule britishers didn’t interfear with the

religions and culture rights of the people but latter on they also stop the bad practice of

the Hindus for example the practice of sati was prohibited by the enactment of perversion

and prohibition of sati act. Therefore on point of cultural secularism, India after it

attained independence also adopted the pattern of secularism in. Thus now it is settle

position that state shall not interfere with the cultural life of the people. On the contrary,

at international level, their has been important international convention expressly

recognized the cultural right of the person has one of the civil right, it has also agreed that

it will be duty of the state to protect the cultural right of the people.

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Though India is a secular state, it is not an anti-religious state. Articles 25 to 28 of

the constitution give the freedom of religion. The constitution of India as already stated

does recognize the religious freedom but religious freedom is not absolute in nature in

other word art 25 expressly provides that every person has right to profess and practice

any religion of his own choice but it should not be against the public order law and

morality.

An America and in Australia there is separation of wall between state and

religion. The 1st amendment of the US constitution provides that govt. will not make any

law which will interfere with the religious affairs of the people. The similar principle may

be found in sec. 116 of the common wealth of Australia Act. Thus from 1st amendment of

the US Constitution it is clear that the citizens of US of America will have their own

religious freedom and at the same that it prohibits the govt. from making any law which

will interfere with the religious freedom of the people. Whereas in India although Indian

Constitution does recognize religious freedom but at the same time it doesn’t prohibit the

govt. for making any laws which will directly or indirectly interfere with the religious

affairs of the people. Further in India as a general rule doesn’t interfere with the private

religious affairs of the person but when such religious affairs relates to public at large

then state may interfere with such religious affairs may it is necessary to do so in the

interest of public at large.

The Supreme Court considered scope and extent of Art 25 and 26 of the

constitution in commissioner Hindu Religious Endowments, Madras V/s.

Shri.Kakshimindra Tirtha Swamiar of Shirur mutt (the Shirur mutt case) A head of Shirur

Mutt had a scheme regarding the Mutt. Authorities wanted to frame and regulated the

scheme. The court held in ultra vires Art 25 and 26.

The term religion is not define under Indian, constitution because it is left to

individual at the time of professing and practicing any religion of his own choice.

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The constitutionally religion is regarded as matter of individual choice.

Further Indian constitution expressly provides that state has power to make the

laws even in the field of religion if it is necessary to do so for social welfare thus state

can make the law so to bring religious reform and the social reform in the society. Further

in view of Art 215(2)(a) state may prohibited certain religious practice if it is against the

public order law and morality. However Art 26(b) expressly provides that any person

who has set up any religious institute may adopt certain religious practice for the purpose

of regulating the religious affairs of his religious institute.

In the case of Raghunath V/s State the Kerala Govt. sought to reconstruct places

of worship destroyed during disturbance, from public funds. The statute authorizing such

construction was held invalid as it violated Art 27.

In Mohd. Hanif Quresh V/s. Bihar the petitioner said that cow slaughter ban

affected religious right of Mohammedans. The court held that the evidence that the

sacrifice of a cow on Bakri Id enjoined by the Koram was part of religion, was very

unsatisfactory.

In the case of Ajmer V/s. Sayed Hussain Ali it was held that Although Indian

Constitution does confer certain religious right but it does not create any new religious

right.

Since Indian constitution does recognize religious freedom every person has a

freedom to convert and profess other religion also however if the conversion of religion is

for unlawful purpose or for colourable purpose then such conversion will not be allowed

and such restriction will not be vocative of Art 25 of the Indian constitution.

Further in the case of Ramji Lal Modi V/s UP it was held that deliberately

(intentionally) insulting any particular person will not be allowed.

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Further Indian constitution recognizes that every person belonging to particular

religion irrespective of his caste and class have a right to enter up on his religious

worship place thus if untouchable were prevented from entering into any Hindu temple,

then it will be an offence under the untouchability offences Act 1955. But in the case of

State V/s. Puranchand a denominational temple confined to Jains was closed to even non-

Jain caste Hindus. So here an untouchable Hindu could not insist upon entry into the

temple under the untouchability offences Act, 1955

It is important to note that Indian constitution doesn’t confirm absolute religions

freedom therefore although India being secular have interfere with the religions affairs or

the religious practice it is found to be unreasonable and oppose to public policy. Thus,

state have enacted certain legislation to prohibit certain religions affair and practice if

they were found to be against the principle of humanity for example, abolition of the

dedication of girls as temple dancers and temple dancing by such girls could be justified

on secular grounds alone.

Rights of Minorities :

The term ‘minority’ with reference to Indian constitution for the purpose of Art

29 & Art. 30 may be understood as that section of the population who are the citizens of

India, residing within the particular territory of the state possessing & preserving distinct

language & culture in that state & who are in smaller proportion in that state are regarded

as minority.

Thus in state of Maharashtra other than marathis all people like Gujaratis,

Christians, Muslims, Sindhis, Punjabis, Bengalis,Tamilians, Telugus, Malayalis are

regarded as minority. However, for the purpose of Art. 29 & Art. 30 person belonging

from reserve category such as SC, ST, DT, NT, OBC are not regarded as minority.

Minorities in India gets all fundamental right such as right to equality Art. 14 to

16, freedom of speech & expression Art. 19, Right of personal life & liberty Art 21,

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protection against unlawful detention Art 22, religions freedom Art. 25 to Art 28, right to

approach Supreme court under Art.32 etc in addition to this fundamental rights,

minorities also enjoys special right under Art 29 & Art 30.

Under Art 29 minority people shall have right to preserve their own culture &

shall also have right to speak their own language.

So under Art 30 also minority people shall have a right to set up their own

educational institute & may reserve certain seats for their people.

The constitutional right of minorities under Art 30(1), to establish & administer

educational institutions of their own choice is absolute & unconditional & not subject

even to reasonable restrictions.

Although minority institute have discretion in the event of administration &

regulation of their educational institute but if such minority institute are receiving the

financial aid from the govt. then such institute bound to follow the government policies in

the matter of admission & recruitment in such educational institute.

The minority educational institutions are untitled to admit not more than 50%

students belonging to their minority community & must make available at least 50% seats

to candidates of all other communities, which are required to be filled purely on merit.

Right to select Teaching & Non-Teaching staff :

The H.C. & the S.C. have consistently held the view that the minority educational

institions have near absolute right of appointment, removal, dismissal, termination of

services or reduction in rank of teaching & non-teaching staff. Thus, although judicial in

India, have categorically said that minorities have absolute right in the appointment of

various personal in their institute, it is not settled view. Justice Krishna Iyer have

observed that administrative authorities including authorities from minority institute

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should not be kept free hand. Their need to be some reasonable restriction over the

exercise of their power.

National Commission for Minorities.

The Government of India passed an Act known as the National commission of

Minorities Act 1992 with the objective of protecting & promoting the rights & interests

of the religious as well as linguistic minorities in India.

The said commission performs following functions :

1) To evaluate the development of minorities people in different parts of the state in

India.

2) Try to ensure & enforce all those safeguards which are provided by the

constitution & by any law for the benefits such people.

3) To look into the complaints regarding the violation of the rights of minority.

4) To undertake the studies regarding the problem face by the minorities & to give

recommendation in order to over came from such problem.

5) To raise the issues regarding the problems of minorities before the appropriate

authority.

6) To undertake the research regarding the statues of minorities from socio-

economic prospectus.

7) To suggest the measures to be undertaken by the govt. for the empowerment of

minorities.

8) To perform any other function which may be referred to it by the central

Government.

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Sec.9 states that central Govt. will place before each of the parliament regarding

the recommendation given by the minority commission for the development of

minorities.

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3. LANGUAGE AND THE LAW

India is a country where people of different language have been settled & have

been undertaken various kind of activity. Thus there are numerous people speaking

different kind of languages in India perhaps, this may not be found in other counties in

the world.

In countries like USA & Australia, which are considered to be legalistic states &

in such a countries only one language i.e. English is used for the purpose of

administration & education. Wheres as, in Russia near by 200 languages are spoken.

However Russian language is consider to be most preferred language over any other

language as the said language is consider to be mother tongue of hearby 100 million

Rusians & use as official language for the purpose of politics whereas, in India, the

situation is not simple their can’t be only language which can be as an official language

of the state.

During the British rule, English was use as a Official language for purpose of

administrating governmental affairs whereas after independence Hindi as well as English

language as official language of the Union.

Constitutional Provision.

Under Article 343 (1) the constitution of India provides that Hindi written in

Devnagari script is to be the official language of the Union.

Further all regional languages are national languages, so Hindi is official

language.

Article 343(1) lays down a period of 15 years for introduction of Hindi in place

of English.

However, parliament will also authorizes to extend the period of 15 years for the

purpose of using English as official language for certain purpose.

Under Article 344(1) the president is authorizes to appoint the commission after

every 5 years for the purpose of determine official language of the govt.

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Commission is authorizes to give recommendations to use certain language as

official language. The said recommendations will be place before the committee

consisting of 20 M.P. who their after for ward its report to the president.

At the time of framing constitution it was argue that instead of English Hindi

should be made as official language of the state.

Article 351 impose the obligation on the central govt. to be take necessary steps

for the development of Hindi languages.

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4. COMMUNITY & THE LAW

Article 15 provides that state shall not discriminate any person from entering into

at the public place mentally on the ground of any religion, caste, class, sex or place of

Birth.

Art. 15 declares that every person shall have a right to enter upon any public place

without any restriction & in respective of his class & caste.

Art 15(4) further provides that the state can make certain special laws or adopt

certain special policies for the purpose of social & economical advancement of women

child & backward classes of the people SC & ST.

Thus, Art 15 ensures protection to all persons as to access to public place without

any discrimination, at the same time, it imposes duty on the state to come out certain

affirmative action for the development of women, child & Other backward classes or the

people.

Art 46 of the Indian constitution by a Directive principle policy of state also

imposes duty on the state to take certain steps for the development of weaker section of

the society.

Here, the affirmative action for the development of S.C./S.T. or OBC people

would mean reserving certain seats for them in higher education & technical institute, but

such reservation should not be more than 50% of the total seats for eg. It there are 100

seats in a law college than 56 can be reserved for S.C /S.T. & OBC & not more than that

otherwise it will be violation of Art 14 of the Indian constitution.

Art 16 confirms the fundamental right on all citizens of India by way of providing

equal opportunity in the matter of public employment (i.e. govt. service).

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The said article provides that every citizens shall have an equal opportunity to any

govt. post or public employment provided such person should be fit for that course &

should have requisites qualification for the said post.

Whereas Art. 16(4) provides that, state can reserve certain seats in govt. services

for S.C. S.T & OBC like wise, under Article 16(4-a) the state will also have to reserve

certain post for the purpose of promotion to S.C. S.T. & O.B.C. Here, the term state in

view of Article 12 would mean central govt. state govt., local authority, corporation &

govt. companies.

Reservation to a single post cadre like the principal of a college or vice chancellor

of a University or the Prime minister of India or the Chief Minister of a state (even

through rotation or roaster system) is void on the ground that it result in to a 100%

reservation which is not permissible under the constitution.

It is relevant to note that the reservation is useful particularly in the matter of

education & unemployment which is consider to be subject matter of state list. Therefore,

it is an initial duty of the S.G. to ensure reservation for S.C. S.T. & O.B.C. Thus,

reservation benefit can be claim by only those persons who belongs to reservation

category & who are the domicile of that state, accordingly, person who is domicile of

another state can’t claim the reservation benefit in other state for e.g. in the state of

Maharashtra, reservation in the matter of education employment, can be claim by only

those persons who are domicile of state of Maharashtra & he belongs to reserve category.

Thus person from other states can’t claim reservation in the state of Maharashtra.

However this principle may not be applicant in the matter of Central recruitment, Central

Govt. services & in the matter of education which are controlled by the Central Govt.

Abolition of Untouchability (Art. 17)

Art. 17 declares abolition of untouchability & its practice in any form is made an

offence, punishable in accordance with law.

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With a view to prevent untouchability parliament enacted the act known as

Protection civil right Act.Under which act., any practice which results into untouchability

has been consider to be an offence & made punishable with the imprisonment.

Despite of stringent legislation & judicial pronouncement on point of prevention

of untouchability, even has on today, one will find number of cases which have been

reported in various police station regarding untouchability.

This untouchability people even as on today suffurs from death humiliation at

various places due to their lower caste.

Art. 23 also ensure as one of the important fundamental right by away of

protection against the immoral trafficking. Expressly provides that no person shall be

compel to a without any pay or their can’t be any force labour or slavery of human being

thus under U.D.H.R. what is recognized as a right of dignity & self respect same have

being recognized under art. 23.

Thus, what is prohibited by Art 23 is that of the force labour, according to which

no person can be compelled to work against this rule. Compulsory work force is abolish

by Art. 23 however state can make special law for doing compulsory services in the

interest of the public. Thus under military law once the war is declare there is a

compulsion on the army man to resume his duty.

Art 330 & Art 332 special provisions have been made for reserving certain seats

in parliament as well as in state assembly for S.T. & S.C.

Art 334 provides that the reservation has provided under Art. 330 & Art 332 shall

cease to exist after 2010. Then administrative safeguard it is provided that Art 338 & Art

340 for safeguard in the constitutional rights of the S.C, S.T. the said article provides that

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their should be national commission for the empowerment of S.C. & S.T. which shall be

duty of the commission to investigate the problems of the S.C. & S.T. at an necessary

suggestion to the central govt. for the empowerment of such people.

Special protection for S.C & S.T.

Under Art. 34 & Art 342 power is conformed on president for any union territory to

notify certain classes as S.C. S.T by way of public notification. In relation to any state the

president after consultation with official Gazette certain classes of people as S.C. & S,T.

After notification such classes of people shall deemed to be S.C.& S.T. for claiming

special constitutional protection in the country.

Thus, once the person is declare S.C & S.T. by the virtue of Art 341 or by the

virtue of Art 342 than such person is entitle to claim special protection under Art 46 of

the constitution of India.

Statutory Safeguard for S.C. & S.T. (Statutory protection)

Apart from constitutional protection the govt. of India have also enacted special

law for the prevention of atrocities of S.C. & S.T. for this purpose the govt. of India

enacted the act known as prevention of S.C. & S.T. atrocity Act.Under the said act

atrocity (which means in its literal sense as any act or practice which humiliates the

person at any public place on account of his lower caste. Such atrocity is considered to be

an offence under sec.4 of the Act, the said offences non bailable, non-compoundable &

cognizable in nature & even person cannot get anticipatory bail also for an offence of

atrocity for the purpose of adjudicating such offences the court under the act.

Despite of the stringent legislation even as on toady human rights of dalit &

adivasis have been violated.

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CHAPTER 5

WOMEN & THE LAW

In the year 1948, a significant development took place by the adoption of the

UDHR(Universal Declaration of the Human Rights).In the said convention right to

equality in Art 17 was regarded as most important universal human rights. There after

other international conventions which were adopted such as international covenant on

civil & political right, covenant on social, economic & Cultural rights which also

recognized various kinds of civil & political rights. And ensured that this rights will be

available to all men & women without any discrimination. Even in the historical

chartered on human rights like English Magna Carta of 1215, the Habeas corpus Act of

1799, the Declaration of independence adopted by the 13th North American colonies in

1776, the Declaration of Rights of Man & Citizens adopted by the French National

Assembly in 1789 & the communist Manifesto etc. did also recognized basic human

rights & which were made applicable to all human being including men & women. The

concept of equality one of important basic human right has its origine, which was

practice & adopted in greek human culture.

The concept of human rights was widened by the UDHR which provided various

categories of human rights to men & women. Thus the said chartered under Art 25 also

expressly recognized right to security employment, adequate health on the ground of old

age sickness, unemployment, disability, widowhood.

Despite of all this human rights made available to women, their has been great

violation of human rights of the women at social level as well as at international level.

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Thus the discrimination based on race & sex operates on Three levels: individual,

organi sational & structural & results into unfair conditions. Thus discriminations based

on sex lead to poverty which latter on results into anti-social activities or criminal

activities.

The world conference on human rights recognize the universal human right of

equality to all human being including men & women. The convention on elimination of

all forms of racial discrimination & the convention on rights of child again recognized

principle of equality & ensure the prevention & prohibition of discrimination based on

the sex, as well as, the convention on rights of child including the rights of the girl.

International convention on civil & political rights does recognized certain civil &

political rights to all human being including men & women. International covenant on

socio-economical & cultural rights which are also applicable to all human being without

any discrimination to sex, place of birth & origin.

Apart from international convention in India their has been specific constitution

provision which try to protect the interest of women for instance under Art 14(4) state

can though affirmative action make the special laws for the development of women. Even

directive principle policy of the state ensures equality as to wage i.e. equal pay for equal

work without any sex discrimination so also it ensure maternity relief to female

employee. The constitution of India also recognize the reservation of certain seats in

favour of women in the election at the local authority level & the gram panchayat level.

Art 326 also ensures constitutional right of giving vote to all citizens without any

discrimination as men & women.

Despite of the constitution set that for women even as on today one will find

sexual harassment of women, harassment for dowry & other form of violence including

domestic violence against the women.

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A recent world Health Organization document stated that violence against women

causes more death & disability in 15-44 age groups than cancer, malaria, traffic accidents

& war combined.

Even as on today, in rural areas one will find number of cases of bride burning

cause by mother in law or by other family members of husband due to non fulfillment of

various demand including non fulfillment of demand for dowry. Despite the prohibition

of Dowry Act 1961, the number of bride burning due to dowry has been increasing in

rural India.

CRIME AGAINST WOMEN

Generally following categories of crimes which are committed against the women

including

1) Crime against the girl (Kidnapping & abduction (359 to 366 of the IPC)

2) Selling girls & women’s for immoral trafficking (sec 372)

3) Sec 375 & sec 376 of the IPC rape.

4) Adultery (Sec 497 to IPC)

5) Harrasing women for dowry (Sec 498(a)

6) Outraging the modesty of women (Sec 354 IPC)

And other cases which are considered to be domestic violence under the

protection of women for the domestic violence Act.

World conference on human right :

World health organization (death between 15-44 age by disease cancer, malaria

international convention eco & social cultural, special low D.P.S.P. equal pay for equal

work, maternity benefit, sexual harassment till now for dowry bride burrowing.

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Chapter 6

Modernization & the Law

The essential function of the law is to achieve welfare of the people which can be

achieve though education employment health & justice. Thus, law was traditional the

understood has protecting law & order in the society & balancing interest of different

section of society but by the passage of the time.The traditional concept of law has been

change & in a modern era, law need to give its focal an some infrastructural aspect like

transportation, communication & energy which becomes very much useful in ensuring

the welfare of the people. The modernization with reference to law in simple sense means

efficiency in law which will try to fulfill the today’s requirement. Thus modernization

essentially means restructuring or reformation of social economical & other institute

which will meet the requirements of all people. Some jurist argues that modernization is

essentially a branch of capitalism where a complete free down is given to individual has

to various kinds of economical activities, they further argues that this will amount to

concentration on income & wealth in the hand of few people. This argument seems to be

justify. But never the less the process of modernization & its importance can’t be ignore

from the prospective of economical development. It is also true that the country like USA

in the world could achieve its progress through the process of free economy. Thus some

one wants to achieve sustainable growth & development as well as modernization in

various fields like modernization in the field of education, health, justice then the

governmental efficiency & its accountability as well as pattern of free market economy is

very much required. In India restructuring in the electoral process can be regarded as

political modernization. However, only a political modernisation in the form of electoral

reform will not be sufficient in achieving the sustainable growth in the country. There has

been various obstacles such as corruption, political vested interest, socio-economical

environment coming in the way of modernization but despite of this India has achieve

commendable position towards the modernization. There has been enormous growth in

the field of science, technology Industry, Recently govt. of India adopted certain

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important policies which really helped in achieving the industrial development &

modernization.

In the process of modernization state has to become soft as well as oppressive,

that is to say, when any act relates to maintain law & order in the society then state has to

become oppressive & when it relates to setting up industries, undertaking & other

infrastructural project then state has to adopt the policy of liberation & to that extent it

has to become soft. The process of modernization is directed to industrial development &

other infrastructural development & therefore to achieve the goal of modernization in

terms of development activities it has to adopt liberal view. It has to be accepted that

modernization is not only an inevitable but a desirable process, & that it has to be a

means to an appropriate ideal of development. Hence, it is necessary to the re-

conceptulise these processes.

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7. ALTERNATIVE APPROACHES TO LAW

Idea of Swaraj :

Before discussing the concept of alternative approaches to law it is necessary to

understand to what purpose law was needed. It is understood that law needed for ensuring

law & order & for self governments. The term self governess means swaraj. The idea of

swary is not new it was advocated by Bal Gangadhar Tilak who inspire this concept from

Shivaji & he also got this concept of swaraj in the form of swadharm as stated in

Bhagwat Geeta. Thus idea of swaraj initiated by Shivaji, further reaffirm by Tilak &

finally further initiated by Mahatma Gandhi. Thus law is very much necessary for the self

governance i.e. for swaraj. According to the concept of swaraj very village will be

independent, self sufficient & will be govern by the people of that locality. The idea of

Gandhiji i.e. recognizing autonomy of village is incorporated in Indian constitution in the

form of gram-panchayat. In this concept all activities of village will be carried out on co-

operative movement & their will be not be any discrimination on the ground of class or

caste in such villages.

Non-violence with its technique of satyagraha & nori-co operation will be the sanction of

village community. In such villages the governing officials including administration of

Justice will be carried out by the Panchayat. Thus, this Panchayat will act as a legislature,

judiciary & executive in relation to its village.

The concept of self sufficiency of the village presupposes the fact that every

village will be independent or self sufficient in all aspect but it doesn’t mean that such

village will not help the other village. Thus, on the basis of co-operative movement one

village can help the other village.

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Panchayat Raj

According to Mahatma Gandhi, the economic constitution of India, for the matter

that of the world, should be such that no one under it should suffer from want of food &

clothing.

In other words, everybody should have work to fulfill his wants in other words

this could be called the theory of full employment at the micro level.

Three Gandhian Principles :

Gandhiji is also regarded as an ideal politicians from the view of democracy his

political thought may be found in his 3 principle i.e.

1) Varna – Vyavastha

2) Trusteeship

3) Decentralisation power

1) Varna - Vyavastha :

According to Gandhiji Varna-Vyavastha essentially consist of 3 elements they are

a) equal wages for all work.

b) absence of competition &

c) a system of education which takes the fullest advantage of the heredity capacities

of the people.

2) Trusteeship :

Gandhiji was not in favour of state, even Karl Marxs against the state, According

to marxs state was a notorious agency in the hands of classes for exploiting the masses.

However, Gandhiji was not completely against the state, he favour the state so long us

21

state remain trustee for the masses. According to him state was under obligation for

ensuring the welfare of the people. On point of privatization Gandhiji was not completely

against the privatization, he supported privatization so long as private entities or classes,

will be the trustee for ē masses.

3) Decentralization of power :

Gandhiji never believed in centralization of power, he was a supporter of

decentralization of power & there for he advocated the concept of panchayat system in

the country.

Most of the followers of the communist pattern of economy against the concept

state, they were also against the concept of law. According to them, law was essentially

regarded as the instrument in the hands of state for exploiting the masses.

The socialist view was also against the concept of state to certain extent.

However, according to socialist view, the production & consumption factor was to be

regulated by the group of the people.

Thus, in socialist pattern all institutions were based on socialist basis.

Latter on in Soviet Union having been adopted socialist pattern law was regarded

as an effective instrument for achieving the welfare of the society.

After the death of stalin in 1953, anti – Stalinist jurists brought soviet legal theory

back to orthodox Marxism.

Economic Approach to Jurisprudence – It is a theory of social organization which

places the means of production & distribution in the hands of the community subsisting

associating for competition, private property is to be abolished & all things are held to be

in common, is called communism. Thus from each according to his power & to each

according to his need is the main principle of communism. Further the communism is

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also based on the principle of classless society. According to Engel, a classless society

existed in the beginning of human society with everybody having the means of

production at his disposal & being independent of another. It was latter on resulted into

two classes, one class retain the production which started exploiting the other classes.

This latter on also distorted into division of labours, where in, works were

distributed according to the needs & the ability of the workers.

According to Marxian law was looked upon from its functional prospective rather

than from the approach of positivism. To certain extend, the socialist view, towards the

approach of law is similar with the theory of legal realism in United States. Thus the

soviet union as well as united union aims at law to be more functional & welfare oriented

than treating law from its positivist law.Thus according to both the approach law is

basically concern with the welfare of the people,it is not simply a common of the soviet

authority.

According to the socialist or soviet theory law is that instrument which ensures

equal production of goods & services for the satisfaction of human wants.

Marxian conceives of law & state as tools of exploitation & characteristics of

capitalist suppression. It is to wither away after the proletariat has assumed power.

In the modern era it is difficult to accept the marx view,because in today ,state is

regarded has a welfare state ,& such welfare state can’t be achieve without the effective

peace of legislation,Thus,today law can’t be regarded as simply an instrument of

exploiting the masses.

Further,state is an important agency which is ultimately responsible for the

purpose of better implementation of the law, that the welfare of the society can’t be

achieved without the effective implementation of law and this can’t be possible without

the interference of the state agency.

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The Karl Marx’s view is mainly focused on paramount consideration as well as

welfare of the masses, to this extent, his view may be found similar with the view of

soviet theory (this theory basically applied in Russia). This theory is also use importance

to the welfare of the society, at this junction, the soviet theory may also be found similar

with the theory of legal realism. The theory of legal realism basically originate from

U.S.A., according to this theory law is not simply a peace of legislation, it would mean

legislation which is ultimately in force by court of justice.

The Marx was against the formulation of law, according to whom, law was

regarded as mean in the hands of state for exploiting the masses. Therefore, he was of the

opinion that once the society assumes the power, then their will be need of law, according

to him, at that time law will wither away. The view of marx on point of law withering

away of law is not accepted by many thinkers many modern thinkers believes that in

modern era the state is now regarded has welfare state clothed with various multiple

functions, & this functions can’t be perform without the effective piece of legislation.

Thus, existence of effective peace of law will assume the important place in achieving the

various welfare functions.

Instruments of Party

Under the marx’s theory, their was no scope for judicial review. Therefore, most

of the modern thinkers feels that the views of marks can’t be relevant in 21st century,

countries in the world adopted the policy of liberalism, privatisation, but still the

importance of judicial review can’t be under mine. Most of the legislations enacted with a

view to promote global trend also to provides remedies by way of judicial review, that is

approaching the court of law in the care of dispute both the parties. Hence, it will be in

proper to say that legislation as well as judiciary have no place in todays world. Marx

pointed out that in a society always there is classes which exploit the masses. There has,

most of the modern thinkers believes that in a democratic country which essentially adopt

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the socialist pattern of the state do not have any place for class conflicts. Even Lenin &

Mr. Gorbachev made improvement in marx’s views & try to justify the importance of the

state in social welfare. Gorbachevial made attempt in making radical changes in the

soviet laws, he also try to change the socio economic & political structure of the state.

It is relevant to not that legal philosophy economical policy of Russia can’t be

compare with that of America, both the nations are born out of revolution, but the

America enjoy the continuity & & stability due to successful democratic pattern of the

state, whereas, Russia could not sustain the continuity & stability because of its socialist

pattern of state; every leader after assuming the power use to dictated his term resulting

in serious economical crisis.

Perestroika also try to provide modified shape to soviet theory, it was further

believe on reform in polistructure, collectivism, democracy & reforms in cultural attitude

of the people.

Socialist legality & soviet legal Theory’s contribution to modern jurisprudence.

The pattern of socialist theory is not fix, it keeps on changing depending upon the

term or instruction of the rural in the govt. In socialist theory or pattern laws are oftenly

fail as per the whims & norms of the leader oftenly, such laws were criticize on the

ground that it did not involve wisdom of collective people & it was regarded as unjust

law against the interest of the society.

The new constitution of the Soviet Union does contains various kinds of rights

which were available to its people, but the restriction were impose hereby, such right can

be exercised if they are against the interest of the society. It is note worthy to say that this

rights simply remain of piece of paper, as they were not enforceable by court of law

further it is relevant to note that the constitution of soviet Russia doesn’t recognize the

independence of judiciary, even court do not interfere when there is a likelihood of

amendment of the constitution whereas in united states, by the virtue of its constitution,

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court immediately interfere if the amendment of US constitution is injurious or violative

of liberty of the people, so also, in U.K., court do not allow the govt. to make any law

which will affect the rule of law.

Normally, law made on the principle of socialist doctrine may be called

socialist law, & legality of the law depends upon on how it is framed, i.e., whether it has

been framed according to prescribed procedure & within the limits of the socialist

principles.

Art 173 of the constitution of 1977 provides that the constitution of USSR

shall have supreme legal force. All laws & other acts of state bodies shall be promulgated

on the basis of & in conformity with it.

Though the constitution of Russia is regarded as supreme law, but still it is change

now for time.

Although, originally the russian legal philosophy was based on socialist pattern

but latter on it was radically change. Gradually, the concept of scientific society & all

people in state was development.

Gorbachev also suggested important changes in ē constitution & in the laws

relating to youth activities & collective farmers.

Strogovich, a jurist, writings in 1965 defined socialist legality as a

rigorous & undeviating adherence to & execution of soviet laws by all state agencies, no

one has theright to disregard a law or bypass it because he does not agree with it or for

any other reason.In other words, it was obligated on each individual to obey the law

whether he likes it or dislikes it.Thus,the socialist legality in Soviet Russia clearly reflects

the supremacy of State over the individual. This philosophy certainly can’t meet the

21

requirement of 21st country which is regarded as era of globalization. Their must be

private freedom so as to channelize the wheel of economy & to promote the global trade,

for this purpose the govt intervention must be minimized. This can be done by adopting

policy of liberalism & the supervisory role of govt.

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CHILDREN AND THE LAW

In most of the countries in the world, their as been specific legislation for

empowerment of child. In India Juvenile justice Act, 1986 take care of the children who

are found in committing the crime. They are regarded as juvenile in conflict with law,

which includes child, whose age below 16 in case of boy & in case of girl below the age

of 18 years. When such child commence of crime they can’t be called as accuse, they are

termed as juvenile conflict with law. They are not try they before the regular magistrate

court they must be brought before Juvenile court.Such juvenile get bail as a matter of

right, they are not punished with the imprisionment. Generally, such juvenile are sent to

children have or observation home for their future development.

Under section 82 of the IPC nothing is an offence when the act is committed by

the child below the age of 7 years, & under section 83 a child between the age of 7 to 12

years will also not be responsible for the penal consequences, it, at the time of

commission of such crime, he had no matured judgement as to the nature &

consequences of committed act. So also under IPC kidnapping & abduction of child is a

punishable offence. Under section 372 of the IPC hiring or selling the girls for

prostitution purpose is also a punishable offence. U/sec. 374 using a force with intent to

outraging the modesty of girl, so also under sec. 509 threathening a girl, u/sec 294

showing indecent picture to a girl, & u/sec 375 & u/sec 376 doing intercourse with the

girl below the age of 16 years have been consider to the punishable offences. Under

Indian Evidence Act even a child can be a competent witness if he or she as a matured

understanding. Under adoption laws even a consent of a girl, son will be taken into

account by handing over his or her custody to one of the parents. U/sec 11 of Indian

contract Act Minor is not responsible for any contractual obligation. U/sec. 7 of The

transfer of property Act minor can’t be transferor but he can be a transferee. U/se 30 of

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partnership Act minor can be admitted for the benefits of the firm but his liability will not

be unlimited.

The Young Persons Harmful Publication Act makes distribution & sale of

publications glorifying crime,violence and indecency to the youth below 21 is a crime.

The importation of such material is also prohibited under the custom Act.

Under the Civil Procedure Code a child or minor can sue or be sued by or through

his natural guardian.

Under Art. 23 immoral trafficking of human being including immoral traficking

of child is prohibited.

Under Art. 24 employment of child in hazardous Industries below 14 years is

prohibited. Art. 39 specifically imposes duty on the state to take necessary steps to

prevent the exploitation of child hood.

Constitutional Protection :

Art 15 (4) Authorities the state to take some affirmative action for development of

child. Under Art 21 (A) right to education to child above 6 years is considered to be a

fundamental right. Art 45 imposes duty on the state to provide free & compulsory

primary education. Art 51 (A) dealing with fundamental duties imposes specific duty on

the parents to provide adequate education to their child. When fundamental right of child

have been violated the H.C. under Art 226 & the S.C. under 32 have invoked their

jurisdiction to protect the fundamental rights of the childs, in the case of M.C. Mehta v/s

State of Tamil Nadu, the S.C. while interpreting under article 24 put the banned on the

employment of child in Match factory & directed the employer to pay the compensation

to the parents & also the alternative employment to each parent.

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Adoption :

Law relating to adoption of child is not uniform in nature. Adoption of Hindu

child is governed by Hindu adoption & maintenance Act but there is no law for the

adoption of Muslim & Parsi child the govt. made & attempt in view of Art. 44 for

bringing uniformed adoption laws for all, but it was opposed by Muslim & Parsi

committee.

Under Hindu law a illegitimate child can’t be taken in adoption. When a person is

having a son he can’t take another son in adoption however he may adopt a daughter in

adoption gap between adopting parents & adopted child should be at least 21 years.

Before adopting son or daughter a Hindu male is required obtain consent of his wife.

Once the adoption is made it can’t be made cancelled.

An illegitimate child cannot be given in adoption. The child must be a Hindu, who

is below 15 years of age and not adopted earlier by any other person.

There is no need for religious ceremony or legal proceedings, the actual giving

and taking of child is enough.

An adopted child is deemed to be the child of the adopted parents for all purposes.

Muslims, Parsi and Christians have no adoption law. In the absence of law, the

courts have to apply the principles of justice, equity and good conscience when a dispute

arises. People of those communities can take children only for foster care.

21

Moreover adoption is not popular in India. Even those who want to adopt a child

will choose only a boy, who is healthy and fair complexioned girls, dark-skinned or

unhealthy children are condemned to live in charitable homes or the streets.

Child Labour :

The Labour Bureau’s study showed that in small industries and cottage industries

such as match manufacture, cashew nut processing, bids making, carpet weaving,

employment of underage children either uncertified or having false age certificate

continues.

The actual hours of work are found to be in excess of the prescribed working

hours under the different enactment.

Legislation relating to Child Labour :

The Govt. of Bombay Instituted its first factory commission in 1857 to enquire

into the conditions of the operative in the Bombay Factories.

The factories Acts.

Factories Act 1881

Factories Act 1891

Factories Act 1911

Factories Act 1922

Factories Act 1934

Factories Act 1948:-

Minimum age of employment was fixed 14 years. A working day of 4 ½ hours

with a spread over of 5 hours was prescribed. Employment during night and on hazardous

occupation is prohibited.

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Under sec 23 of the 1948 :

Employment of young person in hazardous industries is prohibited unless he has

given adequate training. This section is applicable to young person not being a women.

Following are considered to be dangerous machine.

1) power presses, milling machines.

2) guideline machines, circular saws and

3) platen printing machines.

Sec. 27 prohibits the employment of women and children at any factory which involves

the process of cotton i.e. Pressing of cotton which is consider being dangerous.

Sec. 71 imposes prohibition on the employment of children in night at any factory.

Sec. 52 deals with compulsory weekly holiday a child employed by employer at any

factory. Provision of sec. 52 will apply to the child worker and no expectations from the

provisions from that section may be granted to a child.

Register of child workers.

Sec. 73 of the act states that :

1) the manager of every factory in which children are employed shall maintain a

register of child workers, to be available to the inspector at all time during working

hours, such register should contain details of the children employed by the

employer nature of work perform by each child worker and the certificate of fitness

to perform such work.

2) the state govt. May prescribe the form of the register of child workers. The manner

in which it shall be maintained and the period for which it shall be preserved.

Mines Act 1952

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Employment of child below the age of 15 years is prohibited.

Plantation labour Act 1951

The minimum age for employment is fixed at 12 years under the provision of Act.

Under the Employment of children Act 1938.

Children can’t be employed in Industry which includes

1) Bidi making

2) Carpet weaving

3) Cloth printing

4) Manufacture of matches, fireworks

5) Cement manufacture

6) Soap manufacture tanning

7) Wool cleaning

CSA Problem : Case law

Lakshmi Kant V/S U.O.I

Protecting the poor children of the country who are made to become child laborer

for doing domestic services forced labors under the guise of inter country adopting by

foreign parents.

Sheela Borse V/S U.O.I

S.C. with a view to protect children exploitation in jail children shouldn’t be

confined in jail because it is harmful for the growth and development of children.

Delhi based Sakshi Violation intervention centre in 1997, study that interviewed

350 school children found 63% girl respondents had sexually abuse, 25% rape, 30%

sexually abuse by father, grand father, male member of the family.

At 1999 Mumbai base TATA institute of social science revealed that 58 of those

150 girl interviewed had been raped before 10 yr.