2.

LAW & SOCIETY

UNIT I - SOCIOLOGICAL PERSPECTIVES OF LAW

Sociology of law
The sociology of law (or legal sociology) is often described as a sub-discipline of sociology or an
interdisciplinary approach within legal studies. While some socio-legal scholars see the sociology of
law as “necessarily” belonging to the discipline of sociology, others see it as a field of research caught
up in the disciplinary tensions and competitions between the two established disciplines of law and
sociology. Yet, others regard it neither as a sub-discipline of sociology nor as a branch of legal studies
and, instead, present it as a field of research on its own right within a broader social science tradition.
For example, Roger Cotterrell describes the sociology of law without reference to mainstream
sociology as “the systematic, theoretically grounded, empirical study of law as a set of social practices
or as an aspect or field of social experience”.
Irrespective of whether the sociology of law is defined as a sub-discipline of sociology, an
approach within legal studies, or a field of research in its own right, it remains intellectually dependent
mainly on mainstream sociology, and to lesser extent on other social sciences such as social
anthropology, political science, social policy, criminology and psychology, i.e. it draws on social
theories and employs social scientific methods to study law, legal institutions and legal behaviour.
More specifically, the sociology of law consists of various sociological approaches to the study of
law in society, which empirically examine and theorize the interaction between law and legal
institutions, on the one hand, and other (non-legal) social institutions and social factors, on the other.
Areas of socio-legal inquiry include the social development of legal institutions, forms of social control,
legal regulation, the interaction between legal cultures, the social construction of legal issues, legal
profession, and the relation between law and social change.
The sociology of law also benefits from and occasionally draws on research conducted within
other fields such as comparative law, critical legal studies, jurisprudence, legal theory, law and
economics and law and literature.
Sociological Theories of Law
The two most central founders of sociology, Max Weber and Emile Durkheim developed
elaborate theories of law without which no social theory of law today will be possible. 1. Classical
Sociology and 2. Contemporary sociology.
Law as a product of tradition and culture.
Law is ultimately a product of tradition. Tradition means a belief, principle or way of acting which
people in a particular society or group have continued to follow for a long time. Culture means the way
of life, especially the general customs and beliefs of a particular group of people at a particular time.
The ultimate aim of law is to change the society peacefully, but tradition and culture create hindrance
to it. The following are some of the instances to show how Indian tradition and culture became a
hindrance in recognizing the law or guided the judiciary in interpretation of law;
(a) Family Law and Tradition: Matrimonial problems were wide spread in India and the
same was minimized only after codification of Hindu laws etc.

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 (b) Tradition of Sati system: It was a great honour to become sati among the Hindus which
was considered as cold-blooded murder. But it was in 1871 Lord Bentinck had declared
this act of sati as an offence. In Empire v. Panday, he held that abetment of sati is an
offence of abetment of suicide and punishable u/s 306 of IPC. Since then legislators
have taken serious steps, by introducing a special law for the treatment of persons, who
abet sati and make it exemplary punishable upto death sentence under Commission of
Sati (Prevention) Act 1987.
(c) Tradition of Polygamy : Polygamy existed in India during British rule and there was no
restriction on the bigamy. In 1860 u/s 494 of IPC bigamy was restricted but as matter
was of custom it was allowed. But after the independence Hindus were restricted to one
marriage u/s 5 of the Hindu marriage Act 1955 and similar restriction is imposed u/s 4 of
the Special Marriage Act 1954.
(d) Tradition of Child Marriage : The Indian legislature has introduced The Prohibition of
Child Marriage Act 2006. The Act instead of restriction of child marriage focuses on
prohibiting it and thereby enhancing the punishments.
(e) Tradition of adultery : IPC makes provisions for the offence of adultery and makes it
punishable.
(f) Traditional system of settlement of dispute : When any person is alleged to have
committed any immoral act, traditionally he was brought to the panchayat, where all the
persons of that village was sitting, the Panches (Bench of selected judges) had to decide
the case. During colonial period, the panchayat has lost its entity as the regular courts
were constituted.
Law as a means of Social Control
In primitive societies the folkways, mores and customs suffice to control the individual behavior.
Since there is almost unquestioned compliance with them. But in the modern societies, customs tend
to loosen their hold with the result the laws are enacted by the state to control the individual.
According to Sumner - laws are actually codified mores.
Kant - law as a formula which expresses the necessity of an action.
Maclver and Page - Law is the body of rules which are recognized, interpreted an applied to
particular situations by the courts of the state.
Two approaches - Thus there is marked disagreement among scholars as to what the law is.
There is no single definition of law which will encompass preliterate legal arrangements, the code of
Hanmurabi, and law in modern civilization. As Maclver puts it, “the law of the savage is not our law,
those who take juristic view of law define it as the command of the sovereign or the dictates of the
state. Those taking the sociological view define the law as the rules of right conduct. The problem here
is “shall we keep the word law for the specialized system with their codes; their apparatus for settling
disputes, and the penalties for those who have broken the rules, or shall we regard these as mere
specialization of a similar kind of control which may be found in unorganized forms, or in organized
forms, but without what we ordinarily think of as “legal sanctions?”.
Those who hold former view argue that jurisprudence makes it convenient to use the word law in a
specialized sense, while the advocates of the latter view hold the primitive peoples had something which
may be called law and that the rules of voluntary associations like trade unions, clubs, universities, family,
as much regulate the behavior of man as the law of land. Enactments or enforcement by the state should
not be considered essential elements of law. Pollock writes, “if we look away from such
21 LAW & SOCIETY
elaborate systems as those of the later Roman Empire and modern western Governments, we see that
not only law but law with a great deal of formality, has existed before the state had any adequate
means of compelling its observance and indeed before there was any regular process of enforcement
at all. This means that two views may be taken by law. In a wide sense, it include all the rules of
conduct observed by man as a matter of habit. In a narrow sense, it may mean the body of rules which
are recognized or made by the state and interpreted by the courts of the land. Customs becomes law
when the state is prepared to enforce it as a rule binding on citizens.
Characteristics of Law
1. Laws are the general conditions of human activity prescribed by the state for its members.
2. Law is law only if enacted by a proper law making authority. It is a product of conscious
thought; planning and deliberate formulation;
3. Law is definite, clear and precise;
4. Law applies equally to all without exception in identical circumstances;
5. The violation of law is followed by penalties determined by the authority of the state.
6. Law is flexible: A sudden change can be brought in. in India when the central
Government employees had gone on strike thus paralyzing the life of the community, the
Government of India at once met the situation by declaring the strike illegal and enacting
a statute banning strikes in essential services.
7. Law generally deals with matters which are vital to the life of society - laws passed
for creating a national academy of Sangeet or sahitya, establishing a welfare state,
abolishing zamindari system, introducing three year degree course, making the joining of
NCC compulsory and nationalizing the banks deeply affect our social structure.
Law is the most important formal means of social control. Early societies depend upon informal
means of social control but when societies grew in size and complexity they were compelled to
formulate rules and regulations which define the required types of behavior and specify the penalties to
be imposed upon those who violate them.
Law prescribes uniform norms and penalties throughout a social system. The body of law in
every state is being increased. What was in mores and customs earlier, has now been formalized into
a body of law. The Hindu Marriage Act, 1955 has laid down the rules regulating the marriage among
Hindus. It has recognized the right of a Hindu women to divorce her husband. A number of laws have
been enacted governing food handling, fire protection, sewage disposal, traffic, sex regulation,
entertainment and education etc.
Law prohibits certain actions, for example, anti-untouchability Act prohibits untouchability in any
form and a person practicing untouchability is liable to punishment. Prohibition Act forbids drinking in
public place. Smoking in cinema hall is prohibited under law. A Uniform Civil code if and when enacted
may remove the social barriers in Indian society. In this way law exercises powerful influence upon the
behavior of people in modern societies. Sati prevention act tries to abolish the custom of widow
burning. Today law is being used to change absolute customs like untouchability, dowry system, child
marriage etc
Law as an Instrument of Social Change (Unit - II Role of Law towards Social Change in India)
Social change involves an alteration of society; its economic structure, values and beliefs, and its
economic, political and social dimensions also undergo modification. However, social change does not
affect all aspects of society in the same manner. Law, as administered by courts, transforms into justice. As
social norms and values change, laws too have to be reinterpreted, and recast. It is correct that law
22 LAW & SOCIETY
is an instrument of social change, law changes its shape according to the requirement of the society.
Social changes are necessary within the society, for development. But this change can be made by the
tool of law otherwise, it is very difficult to clear the hurdle of custom and usage. If law prohibits any act,
then it has to make it punishable. To show the instrumentality of law of social change, it is necessary to
study some special changes that have taken place in India, because, nothing is permanent but change
is permanent.
Some areas where law has given the influence for social change are:
(a) Abolition of Sati System,
(b) Muslim Women are entitled for maintenance,
(c) Free education is Fundamental Right,
(d) Introduction of Social or Public Interest Litigatio,
(e) Right to Information,
(f) Marriage shall be compulsorily registered,
(g) Abolition of Polygamy,
(h) Restriction on Child Marriage,
(i) Abolition of Slavery System,
(j) Law and Child Labour,
(k) Law and Prostitution,
(l) Video - Conferencing evidence is admissible,
(m) Reforms in Laws relating to Prisoners,
(n) Area of agrarian reform policy and legislation;
(o) Area of implementation of untouchability abolition law;
(p) The normative aspects of employment and educational reservation for the scheduled
castes and scheduled tribes under the Constitution;
(q) The allied field of abolition of bonded labour;
(r) The problem of substantive impact of changes in the family law marriage, equal rights of
women to inheritance and dowry etc.
Significance of Law in Continuance of Human Society
Law is rooted in social institutions, in socio-economic network. These social factors influence the
course of law or the direction of legal change. This is the outcome of personal and social interactions
which are variable and often unpredictable. At the same time, law may itself change social norms in
various ways.
For example, in free India, legal abolition of untouchability is an attempt to change a long-
standing social norm. Yet it has not succeeded much due to inadequate social support. Thus there is a
reciprocal relationship between law and society. Closer analysis of the role of law vis-a-vis social
change leads us to distinguish between the direct and the indirect aspects of the role of law.
1. Law plays an important indirect role in regard to social change by shaping have a direct
impact on society. For example: A law setting up a compulsory educational
system.

23 LAW & SOCIETY

 2. On the other hand, law interacts in many cases indirectly with basic social institutions in a
manner constituting a direct relationship between law and social change.For example: A
law designed to prohibit polygamy.
Law plays an agent of modernization and social change. It is also as and indicator of the nature
of societal complexity and its attendant problems of integration.
Further, the reinforcement of our belief in the age old panchayat system, the abolition of the
practices of untouchability, child marriage, sati dowry, etc are typical illustrations of social change
being brought about in the country through law.
Law is an effective medium or agency, instrumental in bringing about social change in the country
or in any region in particular. Therefore, we rejuvenate our belief that law is significant in continuance
of human society.
UNIT II - LAW AND SOCIAL CHANGE IN INDIA
Constitutional Objectives - Preamble and Directive Principles of State Policies
The text of the Preamble stands for the fundamental Constitutional values in which the founding
fathers believed , which they wanted to foster among the people of the Republic and which, they hoped,
would guide all those who, from generation to generation, were called upon to work. The values expressed
in the Preamble are sovereignty, socialism, secularism, democracy, republican character, justice, liberty,
equality, fraternity, human dignity and the unity and integrity of the Nation. In addition to them, our
Constitution promotes respect for diversity and minority rights, accommodates regional and political
assertions through federalism and fosters international peace and cooperation. In re Berubari’s case the
Supreme Court held that the preamble was the key to the minds of the framers of the constitution. The apex
court also added that the preamble was not a part of constitution. But the above view was rejected by the
Supreme Court in the subsequent Keshavananda Bharathi’s case. The court held that preamble is a part of
constitution and that it can be amended well within the scope of Art 368 but subject to a condition that the
basic features in the Preamble cannot be amended. In the year 1976 the 42nd Amendment to the
constitution inserted three new words in the Preamble namely Secularism, Socialism and integrity.
The Directive Principles of State Policy (Art. 36-51) are guidelines to the central and state
governments of India, to be kept in mind while framing laws and policies. These provisions, contained
in Part IV of the Constitution of India, are not enforceable by any court, but the principles laid down
therein are considered fundamental in the governance of the country, making it the duty of the State to
apply these principles in making laws to establish a just society in the country. The principles have
been inspired by the Directive Principles given in the Constitution of Ireland and also by the principles
of Gandhism; and relate to social justice, economic welfare, foreign policy, and legal and administrative
matters.
DPSPs aim to create social and economic conditions under which the citizens can lead a good life.
They also aim to establish social and economic democracy through a welfare state. They act as a check on
the government, theorized as a yardstick in the hands of the people to measure the performance of the
government and vote it out of power if it does not fulfill the promises made during the elections. The
Directive Principles are non-justiciable rights of the people. Article 31-C, inserted by the 25th Amendment
Act of 1971 seeks to upgrade the Directive Principles. If laws are made to give effect to the Directive
Principles over Fundamental Rights, they shall not be invalid on the grounds that they take away the
Fundamental Rights. In case of a conflict between Fundamental Rights and DPSP’s, if the DPSP aims at
promoting larger interest of the society, the courts shall have to uphold the case in favour of the DPSP. The
Directive Principles, though not justiciable, are fundamental in the governance of the country. It shall be the
duty of the State to apply these principles in making laws. Besides, all executive agencies should also be
guided by these principles. Even the judiciary has to keep them in mind in deciding cases.

24 LAW & SOCIETY

 The directive principles ensure that the State shall strive to promote the welfare of the people by
promoting a social order in which social, economic and political justice is informed in all institutions of life.
Also, the State shall work towards reducing economic inequality as well as inequalities in status and
opportunities, not only among individuals, but also among groups of people residing in different areas or
engaged in different vocations. The State shall aim for securing right to an adequate means of livelihood for
all citizens, both men and women as well as equal pay for equal work for both men and women. The State
should work to prevent concentration of wealth and means of production in a few hands, and try to ensure
that ownership and control of the material resources is distributed to best serve the common good. Child
abuse and exploitation of workers should be prevented. Children should be allowed to develop in a healthy
manner and should be protected against exploitation and against moral and material abandonment. The
State shall provide free legal aid to ensure that equal opportunities for securing justice is ensured to all, and
is not denied by reason of economic or other disabilities. The State shall also work for organisation of
village panchayats and help enable them to function as units of self-government. The State shall endeavour
to provide the right to work, to education and to public assistance in cases of unemployment, old age,
sickness and disablement, within the limits of economic capacity, as well as provide for just and humane
conditions of work and maternity relief.
The State should also ensure living wage and proper working conditions for workers, with full
enjoyment of leisure and social and cultural activities. Also, the promotion of cottage industries in rural
areas is one of the obligations of the State. The State shall take steps to promote their participation in
management of industrial undertakings.
Also, the State shall endeavour to secure a uniform civil code for all citizens, and provide free and
compulsory education to all children till they attain the age of 14 years. This directive regarding education of
children was added by the 86th Amendment Act, 2002. It should and work for the economic and
educational upliftment of scheduled castes, scheduled tribes and other weaker sections of the society.
The directive principles commit the State to raise the level of nutrition and the standard of living
and to improve public health, particularly by prohibiting intoxicating drinks and drugs injurious to health
except for medicinal purposes. It should also organise agriculture and animal husbandry on modern
and scientific lines by improving breeds and prohibiting slaughter of cows, calves, draught cattle. It
should protect and improve the environment and safeguard the forests and wild life of the country. This
directive, regarding protection of forests and wildlife was added by the 42nd Amendment Act, 1976.
Protection of monuments, places and objects of historic and artistic interest and national
importance against destruction and damage, and separation of judiciary from executive in public
services are also the obligations of the State as laid down in the directive principles. Finally, the
directive principles, in Article 51 ensure that the State shall strive for the promotion and maintenance of
international peace and security, just and honourable relations between nations, respect for
international law and treaty obligations, as well as settlement of international disputes by arbitration.
Classification of Directives
A) Social and economic charter
B) Social Security charter
C) Community Welfare charter.
Social and Economic charter
1) Social order based on justice Art. 38 (1)
AIR INDIA STATUTORY CORPORATION v. UNION OF INDIA (AIR 1997 SC 645)The
concept of social justice consists of diverse principles essential for the orderly growth and
development of personality of every citizen. Social justice is then an integral part of
justice in the generic sense. Justice is genus, of which social justice is one of its species.

25 LAW & SOCIETY

 2) Principles of policy to be followed by the state for securing economic justice. Art 39
M.C.Mehta v. State of T.N. (1991) 1 SCC 283
M.C.Mehta v. State of T.N. (AIR 1997 SC 699) (Child Labour abolition case)
Social Security Charter
1. Participation of workers in the management of industries.
2. Right to work, education and public assistance in certain cases
3. Just and human conditions of work
4. Living wage for workers
5. Free and compulsory education for children
6. Duty to raise standard of living and improvement of health
7. Promotion of educational and economic interest of weaker section
8. Equal justice and free legal aid to economically backward classes.
Community Welfare Charter
1. Uniform civil code
2. Organization of agriculture and animal husbandry
3. Protection and improvement of forest and wildlife
4. Protection of monuments and places and objects of national importance
5. Separation of judiciary from executive
6. Promotion of international peace and security
7. Organization of village panchayats
Role of Law towards social change in India (Law changes society, Society changes law)
As there are two sides of each coin, similarly, each act of any person is also either good are bad.
And it is the rule since existence of the society; good is to be accepted and the bad is prohibited (evil
or dharma). This rule still exists and shall be till the end of the end of the civilization. Earlier, the society
was customarily based on morals. But as soon as society is replaced by the state, morality too gets
replaced by the law. If any changes has to made in the existing custom or behaviour in society, it
should be changed by instrument of law only, otherwise not.
The law and social transformation studies the problems of the societies and renders solution
through legal approach. There are two modes of changing law.
First is “Law changed the society”, which means that the law of the land compels the society to be
changed according to the law. When any dispute involving the question law, came before the judiciary, the
judiciary on the basis of rule of law, forced the society to change itself, the existing custom or law,
Second is, “Society Changed Law”, it means law is made by the society according to its
requirement by its democratic institution i.e. legislative or by using custom and usage. The prime
function of legislator is to enact the laws, according to the desire of the society. Whenever any
question arises in court of law, regarding the validity of that law, if court finds that constitutional, moral
and just, then it holds it valid but if not so, then declares it invalid and unconstitutional.

26 LAW & SOCIETY

 Where any law is set by the society in the form of enactments or custom, then it is said that
society has changed the law. On the other hand, if such law is informal, unjust and unconstitutional
then society has to be changes according to the valid law. It is said law has changed the society. In
both ways transformation has to take place.
How law is important to the state, similarly morals are important to the society. So it cannot be
denied that morals are lost and been transformed by law. In practical life, especially in villages which
were the bundle of morals, even after independence, new generations were following the instructions
of their parents and elder persons of the village. Due to this crimes were nominal in the villages. During
that period the persons who stayed in urban were categorized as less moral and it was said that in
cities, the persons did not know their neighbours and never asked their welfare but limited themselves
to earning money. Now, the morality is transferred from village to cities. Presently, there is no meaning
of the moral, everyone is bothered about their legal rights and only few think about their moral duties.
Law of any civilized country is not definite, but it changes according to the demand of the
circumstances newly existed in society. It is correct that law is an instrument of social changes, but on
the other hand, sometimes social changes becomes the law. In India, there are two main social
institutions which make that law change namely, (a) Legislature (by enacting new laws or
amendments) and (b) Judiciary (interpreting according to “rule of law” and “law of Land”).
Jermy Bentham has propounded a utilitarian theory; he says that, law should be such which
gives more pleasure to more members of the society. While the constituent assembly was discussing
on the points of flexibility of the constitution it has also inserted Art. 368 to the constitution, which
states that any part of constitution may be amended by adopting appropriate procedure, without
destroying basic structure of the constitution. It shows the acceptance of the need of changing the law,
even, the law of land according to the changed circumstances.

UNIT III - LAW AND CASTE SYSTEM

In Bengal, questions relating to caste could be raised in court, while in Bombay courts had no
rights to interfere in matters relating to caste. The Widow remarriage Act 1856, Special Marriage Act,
1872 are some of the enactments brought change in social phenomenon. As a consequence of the
introduction of these laws, all the legal inequalities in the treatment of different castes were removed.
The harmonious qualities of the Jajmani system have been over idealized and variations of the system
overlooked by many observers.
The phenomenon of Caste has used more controversy than any other aspect of Indian life and
thought. Some see India’s caste system as the defining feature of Indian culture and some have
dismissed it as a colonial artifact. Since the days of the British rule, both historians and anthropologists
referred to India as a ‘caste society’.
Even after fifty years of Independence, Caste continues to be a major theme in Indian politics.
Many political parties try to make caste an issue in the electoral arena and cash in. They denounce it
as a social evil and attack others for being ‘backward-looking’ and ‘casteist’..
The Government, in the name of creating a casteless, secular society, and to compensate the
injustice meted out by the so-called higher castes to the oppressed, down trodden, economically poor,
educationally backward masses of India, created a plethora of ‘new’castes. These new castes are
classified as Backward Classes, Schedule Castes and Scheduled Tribes. Tribal people are included in
the Scheduled Tribes. These new castes are ‘protected’ by the Quota System or Reservation Policy for
widening their educational and employment opportunities.

27 LAW & SOCIETY

 The Tamil Nadu Government has created one more Community called the ‘Most Backward Class/
Community’ so as to benefit certain other groups. . These people are preferred to all other groups for
getting admissions to Schools, Colleges and Universities, and also for getting selected for different types of
jobs. The higher classes have been called the ‘Forward Classes’; and people belonging to this group face a
tough challenge in what is called an ‘open competition’. This ‘reservation policy’ has been in vogue for quite
some time and will continue indefinitely for some more years. No deadline has been set for this policy
officially. The resultant picture is that merit gets the back seat and people using their rights of reservation
are benefited at all levels, however unqualified they may otherwise be.
Constitutional provisions towards securing Social Justice to backward classes.
Art. 15(4) : Clause 4 of article 15 is the fountain head of all provisions regarding compensatory
discrimination for SCs/STs. This clause was added in the first amendment to the constitution in 1951
after the SC judgement in the case of Champakam Dorairajan v. State of Madras AIR 1951. It says
thus, “Nothing in this article or in article 29(2) shall prevent the state from making any provisions for the
advancement of any socially and economically backward classes of citizens or for Scheduled Castes
and Scheduled Tribes.” This clause started the era of reservations in India.
In the case of Balaji v. State of Mysore AIR 1963, the SC held that reservation cannot be more
than 50%. Further, that art. 15(4) talks about backward classes and not backward castes thus caste is
not the only criterion for backwardness and other criteria must also be considered.
Finally, in the case of Indra Sawhney v. Union of India AIR 1993, SC upheld the decision given
under Balaji v. State of Mysore that reservation should not exceed 50% except only in special
circumstances. It further held that it is valid to sub-categorize the reservation between backward and
more backward classes. However, total should still not exceed 50%. It also held that the carry forward
rule is valid as long as reservation does not exceed 50%.
Art. 15 (5) : This clause was added in 93rd amendment in 2005 and allows the state to make
special provisions for backward classes or SCs or STs for admissions in private educational
institutions, aided or unaided.
Art. 16(4): This clause allows the state to reserve vacancies in public service for any backward
classes of the state that are not adequately represented in the public services.
Art 16 (4A): This allows the state to implement reservation in the matter of promotion for SCs and
STs.
Art. 16(4B): This allows the state to consider unfilled vacancies reserved for backward classes
as a separate class of vacancies not subject to a limit of 50% reservation.
Art. 17: This abolishes untouchability and its practice in any form. Although the term
untouchability has not been defined in the constitution or in any act but its meaning is to be understood
not in a literal sense but in the context of Indian society. Due to the varna system, some people were
relegated to do menial jobs such as cleaning toilets. Such people were not to be touched and it was
considered a sin to even touch their shadow. They were not even allowed to enter public places such
as temples and shops. The constitution strives to remove this abhorring practice by not only making
the provision a fundamental right but also allows punishment to whoever practices or abets it in any
form. Towards this end, Protection of Civil Rights Act 1955 was enacted. It has implemented several
measures to eradicate this evil from the society. It stipulates up to 6 months imprisonment or Rs 500
fine or both. It impresses upon the public servant to investigate fully any complaint in this matter and
failing to do so will amount to abetting this crime. In the case of State of Kar. v. Appa Balu Ingle 1993,
SC upheld the conviction for preventing a lower caste person from filling water from a bore well.

28 LAW & SOCIETY

 In Asiad Projects Workers Case 1982, SC has held that right under Art 17 is available against
private individuals as well and it is the duty of the state to ensure that this right is not violated.
Art. 19(5): It allows the state to impose restriction on freedom of movement or of residence in the
benefit of Scheduled Tribes.
Art 23: Prohibition of traffic in human beings and forced labour.
Art. 40: Provides reservation in 1/3 seats in Panchayats to SC/ST.
Art. 46: Enjoins the states to promote with care the educational and economic interests of the
weaker sections, specially SC and STs.
Art. 164: Appoint special minister for tribal welfare in the states of MP, Bihar, and Orrisa.
Art. 275: Allows special grant in aids to states for tribal welfare.
Art. 330/332: Allows reservation of seats for SC/ST in the parliament as well as in state legislatures.
Art. 335: Allows relaxation in qualifying marks for admission in educational institutes or
promotions for SCs/STs.
Art. 338/338A/339: Establishes a National Commission of SCs and STs. Art. 339 allows the
central govt. to direct states to implement and execute plans for the betterment of SC/STs.
Art. 340: Allows the president to appoint a commission to investigate the condition of socially and
economically backward classes and table the report in the parliament.

Trends of Change in Indian caste System

Despite many problems, the caste system has operated successfully for centuries, providing
goods and services to India’s many million citizens. India’s constitution guarantees basic rights to all its
citizens, including right to equality and equal protection of law to all its citizens. Towards the end of the
20th century and on the threshold of the 21st century, inter¬caste, inter-racial and inter-continental
marriages have become quite common. A Brahmin boy may, for instance, marry a non-brahmin girl. A
Hindu girl may marry a Muslim boy. Or an Indian may marry a French or English. In a majority of
cases, there may be a cultural change. Those who were vegetarians are fast becoming non-
vegetarians and vice-versa. Drinking wine is no longer a taboo in many Hindu families. Some do it
openly and others, due to some compulsions, do it secretly. This is to point out that the original
divisions of society into Jati and VarBa are fast losing their relevance and sanctity.
Educationally, Dalit students have benefited from scholarships, and scheduled caste literacy
increased f(from 10.3 % in 1961 to 21.4% in 1981, the last year for which such figures are available),
although not as rapidly as among the general population. The growth of urbanization (an estimated
26% of the population now lives in cities) is having a far- reaching effect on caste practices, not only in
cities but in villages. Education and election to political office have advanced the status of many dalits,
but the overall picture remains one of great inequality.
Forces of liberalism and globalization have been at play, as western influences serve to weaken
the status quo. Nevertheless, despite such changes, inequality, poverty, and discrimination are still the
reality among women at the bottom of the social ladder. Unfortunately, even as caste distinctions
disappear, problems pertaining to class inequality still remain. Thus, in light of caste distinctions being
less visible now, the consequences of such distinctions continue to manifest themselves plainly.

29 LAW & SOCIETY

 UNIT IV- LAW AND FAMILY
Family - structure and functional aspects
Family is a universal institution found in every human society. Of all human groups the family is
the most important primary group. Historically it has undergone several changes emerging from a hard
social institution and becoming a flexible human relationship. The word family has been taken over
from the roman word “Famulus”, meaning a servant. According to Davis main social functions of the
family are as follows: 1. Reproduction, 2. maintenance, 3. placement and 4.socialization of the young.
Some basic characteristics of Family
1. A mating relationship
2. A form of marriage
3. A system of nomenclature-patrilocal and matrilocal family
4. Economic provisions
5. Common habitat
6. Universality
7. Emotional basis
8. Permanence
Essential functions of family
1. Satisfaction of sex need
2. Reproduction and rearing of children
3. Provision of a home.
Non essential functions
1. Economic
2. Religious
3. Educational
4. Health
5. Recreation
6. Crime
7. Social
8. Role of family in socialization- no other single group satisfies the needs of child as much
as the family does. The child continues to identify himself with the family forever.
For quite a few decades it has been felt that the laws laid down by the Dharmasastras regarding
the family life of the Hindu require to be modified in the light of the demands of contemporary social life
and change. After 1950, when the new constitution become operative, India’s legislators have been
debating a Hindu code bill which has provoked much controversy, support and condemnation, making
it imperative to split it up into piecemeal legislation. The main purpose of this bill is to permit divorce
and registration of marriage in harmony with ritual ceremonies, and also to provide for the inheritance
of property by daughters.
The Muslims of India also present a more or less uniform family pattern which is the outcome of
interaction between Islamic law and Hindu influence. It is well known fact that muslims, particularly the
shia community, have developed a caste structure in India.

30 LAW & SOCIETY

 MARRIAGE
Institution which admits men and women to a family life. Malinowski defines marriage as a
contract for production and maintenance of children. He phrased it as “the principle of legitimacy”.
A legal marriage is the one which gives a women socially recognized husband and her children a
socially recognized father.
A marriage may serve to do any or some or all of the following:
1. To establish the legal father of a woman’s children.
2. To establish the legal mother of a man’s children
3. To give the husband monopoly of the wife’s sexuality
4. To give the wife monopoly of the husband’s sexuality
5. To give the husband partial or monopolistic rights to the wife’s domestic and other labour
services.
6. To give the wife partial or monopolistic rights to the husband’s labour services.
7. To give the husband partial or total rights over property belonging or potentially accruing
to wife
8. To give the wife partial or total rights over property belonging or potentially accruing to
husband
9. To establish a joint fund of property - a partnership for the benefit of the children of the
marriage.
10. To establish a socially significant “relationship of affinity” between the husband and the
wife’s brother.
Rules of Marriage
1. Exogamy
2. Endogamy
3. Sapinda relationship
4. Prohibited degree of relationship.
Marriage in India is a sacrament and not a civil contract. It is a sanskara or purifactory ceremony
obligatory for every Hindu. Without a wife a man cannot enter the grihasta ashram. Without marriage,
there would be no offspring and without a son no release from the chain of birth-death-rebirth.
Hindu marriage is indissoluble- but Hindu Marriage Act, gives way for dissolution. Though hindu
shashtras regard marriage as indissoluble, the legal system accepts the right to separation or divorce.
The Hindu Marriage Act of 1955 has recognized the right of a Hindu women to divorce her husband.
On the other hand, muslim marriage is a secular bond. Prohibited degrees are few and limited.
Even half siblings and first parallel cousins can get married. Polygny is permitted under the condition
that two sisters or an aunt and niece cannot be taken as co-wives and one cannot have four wives at a
time. A muslim man can marry his deceased wife’s sister and also the parent-in-law of his/her children.
A muslim can marry a non-muslim but only a non-idolatrous woman. But a muslim women cannot
marry a non-Muslim ma.
Widow remarriage is already accepted as a desired innovation by a majority of the Hindus of
India. Widow marriage was legalized as far back as 1856 due to pioneering efforts of social reformers
like Ishwachandra Vidyasagar.

31 LAW & SOCIETY

Trends of Changes in the institution of Family and Marriage.
Since time immemorial the joint family has been one of the salient features of the Indian society.
But the twentieth century brought enormous changes in the family system. Changes in the traditional
family system have been so enormous that it is steadily on the wane from the urban scene. There is
absolutely no chance of reversal of this trend. In villages the size of joint family has been substantially
reduced or is found in its fragmented form. Some have split into several nuclear families, while others
have taken the form of extended or stem families. Extended family is in fact a transitory phase between
joint and nuclear family system. The available data suggest that the joint family is on its way out in rural
areas too.
The nuclear family, same as elsewhere, is now the characteristic feature of the Indian society.
According to the census of India data, of all the households nuclear family constituted 70 percent and
single member or more than one member households without spouse (or eroded families) comprised
about 11 percent. The extended and joint family or households together claim merely 20 percent of all
households. This is the overall picture about the entire country, whereas in the case of urban areas the
proportion of nuclear family is somewhat higher still
The very foundation of Indian family is marriage and it binds the society together. Marriage is the
formally recognized means of recruiting new members to a line of descent, and it creates alliances
between such lines. It can very well be stated that marriage is a form of legal recognition for sexual
relationship or conjugal life.
Payal Sharma v. Superintendent, Nari Niketan Kalindi Vihar (AIR 2001 All 254)
The Allahabad High Court held that a man and woman, even without getting married can live together
if they wish. This may be regarded as immoral by society but it is not illegal. The court further observed that
since the petitioner is major she can go anywhere and can live with any one as she desires.
Saroj rani v. Sudarshan Kumar (AIR 1984 SC 1562 to 1568)
The valid marriage is the very foundation of family. If marriage is considered as a relationship in
which two adults of the opposite sex make a commitment to live together as husband and wife one has
to rethink about the sanctity of marriage and family relationship. If living together is equated to
marriage, the sacramental mature of marriage will disappear. Hence it is to be seriously considered
how far such living together can be allowed. In India, it may be burned in mind that conjugal rights, that
is the right of the husband or wife to the society of the other spouse is merely creature of statute. Such
a right is inherent in very institution of marriage.
Marriage is an institution which admits men and women to family life. The traditional system of values
of the Indian society, especially that of Hindus, has been such that it stood for the practice of early as well
as universal marriage for females. Child marriage or pre-puberty marriage all through has been an
archetypal institution of India. The mean age at marriage was reported to be quite low in the 19th century
and so also in earlier days. The mean age at marriage for females was about 13 years between 1901 and
1931 censuses and it did not differ much between different communities. Of all the legal measures the
Child Marriages Restraint Act 1929 (and its further amendments in 1949, 1955 and 1978) happened to be
quite effective one. Rise in the age at marriage really became conspicuous during the post independence
era, that is, during the period onward 1950. The act was further amended in 1978 wherein boys’ marriage
age was raised to 21 and girls’ age to 18 years. On the whole, the state level census information for the last
one hundred years has revealed a clear rise in the age at marriage for girls. During 1891¬1991 the age at
marriage increased by 4 to 7 years in different parts of the country.
Uniform civil code
Article 44 of the constitution requires the state to secure for the citizens a Uniform Civil code
throughout the territory of india.

32 LAW & SOCIETY

 Sarala Mudgal v. union of India (AIR 1995 3 SCC)
Pragati Varghese v. Cyril George Varghese (AIR 1997 Bom 349)
Noor Saba Khatoon v. Mohd.Quasim (AIR 1997 SC 3280)
In India this term refers to the concept of an overarching Civil Law Code. A uniform civil code
administers a common set of secular civil laws to govern all people, irrespective of differences in
community, religion and region. This supersedes the right of citizens to be governed by different
personal laws based on their religious or ethnic identity. The common areas covered by a civil code
include: Personal status, rights related to acquisition and administration of property and marriage,
divorce and adoption. Such codes are in place in most modern nations, but not so far in India. Here
most family law is determined by the religion of the parties concerned. Hindus, Sikhs, Jains and
Buddhists come under Hindu law, whereas Muslims and Christians have their own laws.
Muslim law is based on the Shariat. The passage of the Hindu Code Bills in the 1950s marked a
turning point in the history of the Muslim Personal Law. Until this time, Muslim Personal Law had
existed side by side with similar religious laws for Hindus and other communities. The Hindu Code Bills
were a series of laws aimed at thoroughly secularizing the Hindu community and bringing its laws up to
modern times. The affect of the Hindu Marriage Act was to prohibit polygamy and to increase the right
of the divorced wife to maintenance or alimony. The act applied to everyone in India except Muslims,
Christians, Parsees, and Jews. Since Jews and Parsees were a very small minority, and since
Christians were governed under an already modern or progressive law, Muslims remained the only
large community with a distinct religious law that had not been amended to reflect modern concepts
When the Indian government ratified the CEDAW (Convention of the Elimination of all forms of
Discrimination Against Women) in 1993, it modified laws that were created under the colonial
administration. This brought the secular-Muslim divide created after independence into sharp focus. As a
matter of fact, the Constitution of India contains in it a series of contradictions that have made it difficult for
the government of India to reform or dismantle Islamic personal law. India’s leaders at the time of framing of
constitution for republic India wanted a secular constitution on the model of a Western democracy. But
surprisingly what resulted was not secularism in the Western sense of the term, but rather a ‘secular’ state
with religious laws for its religious groups. In India ‘secular’ means ‘non-intervening in the matter of Islamic
religion. Those wishing to reform the Muslim Personal Law have often cited Muslim countries as examples
that such reform is possible. In this regard a question is often raised that if Muslim countries can reform
Muslim Personal Law, and if Western democracies have fully secular systems, then why are Indian Muslims
living under laws passed in the 1930s? There are Muslims who are in favour of either doing away with the
Personal Law or reforming it. Enumerable liberal Muslim intelligentsia have opined through the media that
polygamy should be banned outright, women should have an easier time petitioning for a divorce, the
husbands should not be able to use the triple talaq method of divorce and the maintenance be granted as it
is with the non-Muslims. Yet the old system continues to perpetuate.

UNIT - V - PROBLEMS OF WEAKER SECTIONS

There are certain groups of human beings who either by nature or because deep rooted custom
are weak and vulnerable, such as, a child, women, disabled persons, aged persons, migrant workers
or persons belonging to a particular race. Their rights have been violated very frequently by dominant
section of the society.
Social Position of women in India
Condition of women in India has not been historically very good. As is evident from Manusmriti,
women did not have much rights as compared to men. Further, the women are physically weaker than
men and due to this fact also, they have been exploited. Due to such continuous unfavorable
treatment, the social status of women has become really bad.
33 LAW & SOCIETY
 That women are naturally a weaker sex was first acknowledged by US supreme court in the case
of Muller v. Oregon 1908. In this case, the US SC observed that due physical structure and
performance of maternal functions, women are at a disadvantage in the society and thus it is society’s
responsibility to implement favorable laws to bring them on the same level as men.
The makers of Indian Constitution also understood this fact and have provided several provisions
for elevating the status of women and giving them a level playing field. The following is a brief
description of such provisions.

CONSTITUTIONAL AND OTHER LEGISLATIVE MEASURES

TO IMPROVE THE STATUS OF WOMEN

Fundamental Rights
Art 14
It says that the state shall not deny any person equality before law and equal protection of law in
the territory of India. While this article is general in nature, it forms the bedrock for all other provisions.
The principle of equality adopted in the this article is that “like should be treaded alike”. This is the key
principle for a social welfare state to ensure social and economic equality. The right to equality with out
the capability and the means to avail the benefits equally would be a cruel joke on the weaker sections.
This concept of equality permeates throughout the entire constitution. This article facilitates the
existence of other provisions that might seem discriminatory but are, in fact, not.
Art 15
While article 15(1) prohibits the state from discriminating on the basis of religion, race, case, sex,
or place of birth, art 15(3) allows the state to make special provisions for women and children. This is
important because as espoused by art 14, it is imperative for the state to make laws as per the social
condition of various peoples. Art 15 merely elaborates that same concept and acknowledges that
women need special treatment for their upliftment.
In the case of Yusuf Abdul Aziz v. State of Bombay, (AIR 1954), SC held that section 497 of IPC
is valid even though it punishes only the man for adultery and not the woman even if she has abetted
the crime.
Art 16
Art 16 (1) ensures equality in employment in govt. services and art 16(2) explicitly prohibits any
discrimination on the ground of sex among other grounds. Even though art 16 does not directly contain
any provision specifically for women, in the case of State of AP v. P B Vijayakumar (AIR 1995), SC
held that a rule 22A introduced by AP govt. that gave preference to women over men was valid. SC
held that it is not necessary to have a specific provision in art 16 because such a provision can be
made under art 15(3) itself. It further noted that art 15(3) is a recognition of the fact that for centuries
the women of this country are socially and economically handicapped. As a result they are unable to
participate in the socio-economic progress of the country on an equal footing. Thus, making special
provisions for women in employment is an integral aspect of 15(3). This power of art 15(3) is not
whittled down any way in art 16.
Art 21
The courts have interpreted very widely the right to life and personal liberty. In several cases, this
article has come to the rescue of women who have been wronged. In the case of Bodhisatva Gautam
v. Subhra Chakrabarti AIR 1996, SC awarded interim compensation to the rape victim.
Soon after that in the case of Vishaka v. State of Raj, AIR 1997, due to lack of any specific law,
SC gave certain guidelines to prevent sexual harassment of women in workplace.
34 LAW & SOCIETY
Art 23
Prohibits traffic in human beings and forced labor. This has improved the condition of women in
terms of forced prostitution.
Directive Principles of State Policy
Art 39 (a) Urges the state to provides equal right to adequate means of livelihood to men and
women.
Art 39 (d) Equal pay for equal work for both men and women.
In the case of Randhir Singh v. Union of India AIR 1982, SC held that equal pay for equalwork is
a constitutional goal and is capable of being enforced.
Art 39 (e) State should ensure that men, women, and children are not forced into work that is
unsuitable to their age or strength due to economic necessity.
Art 40/Art 243 D provides that 1/3 seats in panchayats shall be reserved for women.
Art 42 says that the state shall make provisions for securing just and humane working conditions
and maternity relief.
Art 44 UCC Due to absence of a uniform civil code, women are routinely exploited in the name of
personal laws promulgated by religions. This fact was known to the makers of constitution and they
urged the states to implement UCC.
In the case of Sarla Mudgal v. Union of India, 1995, SC urged the implementation of UCC by
states.
Fundamental Duties
51 A (e) says that it is the duty of the citizens to renounce practices that are derogatory to the
dignity of women.
Section 14 of the Hindu Succession Act, 1956 should be construed harmoniously with the
constitutional goals of removing gender based discrimination and effectuating economic empowerment
of Hindu women.
Acts for the benefit of women
Several Acts have been passed for the improving the condition of women from time to
time.
1. Dowry Prohibition Act 1961
2. Contract Labor Act 1970 as well as Factories Act 1948 provide that women cannot be
employed in the night between 9 PM to 6 AM. Women cannot be required to work more
than 9 hours.
3. Equal Remuneration Act 1976
4. The Indecent Representation of Women (Prohibition) Act 1986
5. The Commission of Sati (Prevention) Act 1987
6. Protection of Women from Domestic Violence Act 2005
7. Maternity Benefits Act 1961
8. Child Marriage Prohibition Act 1929

35 LAW & SOCIETY

Offences Against women
Dowry: What began as a gift of land to a woman as her inheritance in an essentially agricultural
economy today has degenerated into gifts of gold, clothes, consumer durables and large sums of cash,
which sometimes entails the impoverishment and heavy indebtedness of poor families. In the course of
time dowry has become a widespread evil and it has now assumed menacing proportions. Surprisingly
it has spread to different communities across the country, which were traditionally non-dowry taking
communities. With the increasing greed for the easy inflow of money on account of a bride the chilling
stories of bride burning started coming to light. With a view to eradicating the rampant social evil of
dowry from the Indian society, the Parliament passed the Dowry Prohibition Act in 1961 which applies
not merely to Hindus but to all communities like— Muslims, Sikhs, Christians and others. Giving, taking
and demanding dowry is a criminal offence under the Dowry Protection Act and the Indian Penal Code.
Domestic Violence: Violence within family settings is primarily a male activity. The prime targets
are women and children. The women have been victims of humiliation and torture for as long as we
have written records of the Indian society. Despite several legislative measures adopted in favour of
women during the last 150 years, continuing spread of modern education and women’s gradual
economic independence, countless women have continued to be victims of discrimination and violence
in the country (Singh 2002: 168). Increasing family violence in modern times has compelled many
social scientists to be apologists for the traditional joint family- as happy and harmonious, a high-
voltage emotional setting, imbued with love, affection and tenderness. India’s past has been so
romanticized by certain scholars that they have regarded the joint family as the best form of family.
There are data showing that in India 40 percent of women have experienced violence by an intimate
partner. These stark figures underline the fact that, although the home and community are places
where women provide care for others, they are also places where millions of women experience
coercion and abuse. A study of five districts of the State of Uttar Pradesh has revealed that 30 percent
of currently married men acknowledge physically abusing their wives (UNC 1997). Similarly, the multi-
sectoral survey done by the International Clinical Epidemiologists Network (INCLEN) has reported that
two out of every five married women reported being hit, kicked, beaten or slapped by their husbands.
About fifty percent of the women experiencing physical violence also reported physical abuse during
pregnancy. With the rise in the level of education and exposure to mass media, women tend to have
greater awareness of the notion of gender equality, faith in the effectiveness of legal action to protect their
rights, and confidence in such institutions as family courts and certain voluntary organizations working for
women. Yet there is no sign of abatement in gender related violence. Cases of domestic violence, like wife-
battering and forced incest with the women of the household, are so personal and delicate that they are
seldom reported to the police or law courts. We are sure that the recent legislation of anti-domestic violence
act of 2005 would certainly take care of the problem of gender-based violence of the Indian woman to a
very large extent. There is another side of the story of domestic violence as well which has remained
uncovered, particularly by feminist writers. It is roughly estimated that every year more than 58000
educated women are making the life of their husbands hell by misusing anti-dowry law and domestic
violence act and under these laws legal terrorism is continuing openly to extort money from the husbands
and their families. More than 52000 married men are ending their life due to various type of harassment
and domestic violence faced form their beloved wives in the form of verbal abuse, financial abuse, mental
abuse, sexual abuse, relationship cheating, etc.
Eve teasing
Eve teasing is a euphemism used in India for public sexual harassment or molestation of women
by men, with use of the word “Eve” being a reference to the biblical Eve, the first woman. It implies that
the woman is in some way responsible for the behaviour of the perpetrators of this act. Considered a
problem related to delinquency in youth, it is a form of sexual aggression that ranges in severity from
sexually suggestive remarks, brushing in public places and catcalls to outright groping. Sometimes it is
36 LAW & SOCIETY
referred to with a coy suggestion of innocent fun, making it appear innocuous with no resulting liability
on the part of the perpetrator. Some voluntary organizations have suggested that the expression be
replaced by a more appropriate term. According to them, considering the semantic roots of the term in
Indian English, Eve teasing refers to the temptress nature of Eve, placing responsibility on the woman
as a tease.
Sexual harassment by strangers, as with any type of harassment has been a notoriously difficult
crime to prove, as perpetrators often devise ingenious ways to harass women, even though eve teasing
usually occur in public places, streets, and public transport. Some feminist writers claim that this behaviour
is a kind of “little rape”. Sexual harassment includes such unwelcome sexually determined behaviour
whether directly or implication such as (a) physical contact, (b) a demand or request for sexual favours,
(c) sexually coloured remarks, (d) showing pornography, (e) any other unwelcome physical, verbal or
non - verbal conduct of sexual nature. In Vishaka v. State of Rajasthan and others (AIR 1997 SC
3011 to 3016), the Supreme Court of India laid down the norms and guidelines to be followed by the
employers for tackling the incidents of sexual harassment of women at workplace and other
institutions. The guidelines issued by the Supreme Court also suggested regarding setting up of a
complaints redress forum in all work places and amendment of the disciplinary / conduct rules
governing employees by incorporating the norms and guidelines.
Convention for Elimination of All Forms of Discrimination Against Women (CEDAW)
Apparel Export Promotion Council v. A.K.Chopra (1991 1 SCC 759)
M/s. Saudi Airlines v. Shenaz Mudbhatkal Rupan Deol Bajaj v. KPS
Gill (1995 6 SCC 194)
Compensation to Rape Victims :
Delhi Domestic Working women’s forum v. Union of India (AIR 1995 1SCC 14)
Bodhisathwa Gautham v. Subhara Chakraborthy (1996 1 SCC 490)
Persons killed in fake encounters: Peoples Union for civil liberties v. Union of India (AIR 1997
SC 1203)
Prostitution is the act or practice of providing sexual services to another person in return for
payment. The person who receives payment for sexual services is called a prostitute. According to a
Human Rights Watch report, Indian anti-trafficking laws are designed to combat commercialized vice.
The primary law dealing with the status of sex workers is the 1956 law referred to as The Immoral
Traffic (Suppression) Act (SITA). According to this law, prostitutes can practice their trade privately but
cannot legally solicit or ‘seduce’ customers in public. Clients can be punished for sexual activity in
proximity to a public place. Organized prostitution (brothels, prostitution rings, pimping, etc.) is illegal.
As long as it is done individually and voluntarily, a woman (male prostitution is not recognized in the
Indian constitution) can use her body’s attributes in exchange for material benefit. In particular, the law
forbids a sex worker to carry on her profession within 200 yards of a public place. Unlike as is the case
with other professions, sex workers are not protected under normal labour laws, but they possess the
right to rescue and rehabilitation if they desire and possess all the rights of other citizens.
In practice SITA is not commonly used. The Indian Penal Code (IPC) which predates the SITA is
often used to charge sex workers with vague crimes such as “public indecency” or being a “public
nuisance” without explicitly defining what these consist of. Recently the old law has been amended as
The Immoral Traffic (Prevention) Act or PITA. The Immoral Traffic (Prevention) Act or PITA is a 1986
amendment of legislation passed in 1956 as a result of the signing by India of the United Nations’
declaration in 1950 in New York on the suppression of trafficking

37 LAW & SOCIETY

 Trafficking is a crime against humanity. It involves an act of recruiting, transporting, transferring,
harbouring or receiving a person through a use of force, coercion or other means, for the purpose of
exploiting them. Every year, thousands of women and children fall into the hands of traffickers, in their
own countries and abroad. Article 23 under Part 3 (Fundamental Rights) of the Indian constitution
prohibits trafficking of human beings in the territory of India. It states that Traffic in human beings and
beggar and other similar forms of forced labour are prohibited and any contravention of this provision
shall be an offence punishable in accordance with law. Thus constitution ensures prohibition of
trafficking. At the same time Section 366A of IPC States that trafficking of a minor girl (below 18 years
of age) from one part of the country to the another is punishable. Juvenile Justice (Care and Protection
of Children) Act,2000 is relevant to children who are vulnerable and are therefore likely to be inducted
into trafficking and thereby protects children from trafficking.
The Ministry of Women and Child Development was made the nodal agency by the government
to deal with human trafficking in India. A nodal cell against human trafficking has been constituted in
the Ministry of Home Affairs. The National Human Rights Commission has formulated an integrated
plan of action to prevent and combat human trafficking with special focus on women and children.
However there is still a lack of clarity in government policies with regard to human trafficking.
Child Labour Any child below the age of 14, who is engaged in employment is called child labour. In
other words non-school going child irrespective of the fact whether employed in wage or non - wage work.
Evidence suggests that they are quite vulnerable and their exposure to violations of their protection rights
remains widespread and multiple in nature. The manifestations of these violations are very varied, ranging
from child labour and child trafficking to commercial sexual exploitation and many other forms of violence
and abuse. With an estimated 12.6 million children engaged in hazardous occupations (2001 Census), for
instance, India has the largest number of child labourers under the age of 14 in the world. Although poverty
is often cited as the cause underlying child labour, other factors such as discrimination, social exclusion, as
well as the lack of quality education or existing parents’ attitudes and perceptions about child labour and the
role and value of education need also to be considered. The main reason which gives rise to child labour is
widespread unemployment and underemployment among the adult poor strata of the population, inter alia,
due to sharp growth of population.
The major provisions of the Constitution relating to children are:
Fundamental Rights
Article 14: “The State shall not deny to any person equality before the law or the equal protection
of laws within the territory of India.”
Article 15: “The State shall not discriminate against any citizen... Nothing in this Article shall
prevent the State from making any special provisions for women and children.”
Article 21: “No person shall be deprived of his life or personal liberty except according to the
procedure established by law.”
Article 23: “Traffic in human beings and begar and other forms of forced labour are prohibited
and any contravention of this provision shall be an offence punishable in accordance with the law.”
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.”
Directive Principles of State Policy
Article 39: “Right of children and the young to be protected against exploitation and to
opportunities for healthy development, consonant with freedom and dignity.”
Article 42: “Right to humane conditions of work and maternity relief.”

38 LAW & SOCIETY

 Article 45: “Right of children to free and compulsory education.”
Article 46: “To promote educational and economic interests of weaker sections to protect them
from social injustice.”
Article 47: “The State shall endeavour to raise the level of nutrition and standard of living and to
improve public health.”
The National Commission for Protection of Child Rights (NCPCR) was set up in March 2007
under the Commission for Protection of Child Rights Act, 2005, an Act of Parliament (December 2005).
The Commission’s Mandate is to ensure that all Laws, Policies, Programmes, and Administrative
Mechanisms are in consonance with the Child Rights perspective as enshrined in the Constitution of
India and also the UN Convention on the Rights of the Child. The Child is defined as a person in the 0
to 18 years age group.
The Commission visualises a rights-based perspective flowing into National Policies and
Programmes, along with nuanced responses at the State, District and Block levels, taking care of
specificities and strengths of each region. In order to touch every child, it seeks a deeper penetration to
communities and households and expects that the ground experiences inform the support the field
receives from all the authorities at the higher level. Thus the Commission sees an indispensable role
for the State, sound institution-building processes, respect for decentralization at the level of the local
bodies at the community level and larger societal concern for children and their well-being.

UNIT VI - LAW AND WOMEN EMPOWERMENT

Policies and Programmes for the Empowerment of Women
In the past 60 years of independence there has been quite a lot of work done towards the benefit
of women. In initial 5 yr plans, the focus was on welfare of women. Later on the focus shifted to
development and currently the focus is on empowerment. In 2001, National Policy for Women
Empowerment was adopted. It main points are -
1. To create an environment so that women feel involved in the making of economic
and social policies.
2. To give equal share in social, economic, and political aspects.
3. To remove discrimination against women by enacting various laws.
4. To encourage equal treatment of women in the society.
The following are other measures adopted towards this end.
1. Swayamsidha Scheme - Implemented by joining Indira Awas Yojana and Mahila
Samruddha Yojana, whose objective is the ensure the total development of
women.Under this policy, women can directly control and audit the programs. It is
implemented at gram and village panchayat level by Govt. as well as NGOs.
2. Swahdhar Scheme - It helps destitute women to learn vocation and financial support so
that they can start earning on their own.
3. Kishori Shakti Yojana
4. Mahila Samriddhi Yojana
5. Maternity Benefits Scheme
6. Rashtriya Mahila Kosh
7. Scheme for working women’s hostels

39 LAW & SOCIETY

 8. Development of women and children in rural areas
9. Margin Money Loan scheme
Self Help Groups
A self-help group (SHG) is a village-based financial intermediary usually
composed of 10¬20 local women. SHG is a registered or unregistered group of
micro entrepreneurs having homogeneous social and economic background,
voluntarily coming together to save small amount regularly, to contribute a
common fund and to meet their emergency needs on mutual help basis.
In India, self employment has been recognized as an essential force of
development in rural areas. It has emerged as a strategy designed to improve the
socio-economic life and mainly focuses on extending the benefits of development
to the poorest in the rural areas improving their standard of living and self-
realization. SHGs in India are integrating the low income segments with rest of
the rural community by ensuring them a better participation in a more equitable
share in the benefit of developments. These Groups are not only speeding up
economic growth, but also providing jobs and improving the quality of rural life
towards self-reliance. Self-employment needs a very wide ranging and
comprehensive set of activities, relevant to all aspects of rural economy and
covering rural people including skilled, unskilled and landless labours and
artisans of Rural India. Even though the Rural Indians put their entrepreneurial
skills in all the rural development activities their economic status has not
improved to the expected level. Although they have much potential; they are
ignorant of converting their skills into reality. In short SHG performs the following
functions
1. Improve efficiency of the credit system
2. Channel of financial conclusion
3. Resource mobilization
4. Promote savings and banking habit
5. Improve the living condition of the poor
6. Empowerment of women
7. Promote social and economic justice
8. Community actions
9. Develop individual skills of the community members
10. Livelihood finance and employment generation
11. Reduce influence of unorganised sector
12. Benificial to the financial sector
National Commission for Women
In January 1992, the National Commission for Women (NCW) was set up
as a statutory body under National Commission for Women Act,1990 to review
the constitutional and legal safeguards for women; recommended remedial
measures, facilitate, redressal of grievances and advise the government on all
policy matters affecting women.
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