LAW AND SOCIAL TRANSFORMATION

ASSIGNMENT – 1

1. Explain the relationship between Law and Social Change

Law

Law not only lays down the norms which are acceptable to a given society, but it also lays down the
norms, which the society should adopt in the interest of its welfare. The rules or code of conduct that a
society develops by experience shapes into law for the sake of uniformity, consistency, performance
and sanction. An acceptable norm thus becomes a law.

Max Weber- feels that "Law is an order, the validity of which is guaranteed by the probability that
deviation will be met by a physical or psychic sanction by a staff specially empowered to carry out this
Sanction"

Austin defined law as "the Command of the sovereign, having sanction behind it.

Change

CHANGE is a difference in anything observed over some time.

Change is the rule of society. Society forms its code of conduct, and its norms to be followed by its
members and at times and at many times expects wholehearted compliance and submission to
societal norms as set by the society or its various groups or sub-groups.

Social change:

Lundberg and others' "Social Change refers to any modification in established patterns of inter-human
relationship and standards of conduct.

Vidya Bhushan and D.R. Sachdeva observed, "Change is the law of nature what is today shall be
different from what it would be tomorrow. The social structure is subject to incessant change ...
Society is an ever-changing phenomenon, growing, decaying, renewing and accommodating itself to
changing conditions and suffering vast modifications over time.

The changes in technology, agriculture, dairy, farming, science etc. may not be included in the term
"social change." Social change is limited to alterations in the field of social relationships. Social
relationships are social processes, social patterns and social interactions.

Social change can be (1) modifications or (2) replacements.

For example, our ideas about untouchability, women's rights, religion, marriage, sex, government and
the same may undergo further modification or replacement in future.

Persons who make a change in society through the social revolution

1. Raja Ram Mohan Roy- fight for sati system

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 2. Ishwar Chandra Vidhya Sagar- widow remarriage and women education
3. Guru Nanak Dev- He advocated Hindu Muslim unity, equality, brotherhood and oneness of
God etc
4. Swami Dayanand Saraswathi – women’s education on equal terms

Social Change Through Law

1. Abolition of slavery and bonded labour system: Art 23 of the constitution of India protects
individuals from trafficking and forbids bonded labour in India. As well as Government of India
enacted the Bonded Labour System (Abolition) Act, of 1976 to prohibit bonded labour in India,
2. Disallowance Of Child Marriage: The Hindu Child Marriage Restraint Act was substituted by
the restriction of the Child Marriage Act 2006. It introduced a reduced youngster marriage
restriction officer and expanded the energy of the family court to choose the issue under the
Act. The demonstration likewise improved the discipline by up to two years through
detainment or with fines up to Rs 2 lakhs or with both.
3. Right To Free And Compulsory Education: In 1992 the good Supreme Court proclaimed the
privilege to free and mandatory instruction as a key right in the ambit of 'Ideal to Life' under
Art 21 of the constitution. In 2002 the constitution was changed by embeddings Article 21A to
execute the privilege of free and mandatory instruction of each kid matured between 6–14
years and embedded principal obligations of parents. In 2010 The Right of Children to Free
and Compulsory Education Act 2009 was placed in drive with impact from the first of April to
give free and mandatory instruction from 1 to the eighth standard.
4. Laws For Rape Victims: The Criminal Law (Amendment) Act, 2013, included new classes of
offences concerning savagery against ladies and young ladies and made the discipline more
stringent, including capital punishment for rehash guilty parties. A compensatory system is
also introduced by the Government for rape victims,
5. Abolition of Sati System: Sati' – meaning burning or burying the life of a widow along with the
corpse of her husband. It was considered to be a great honour among Hindus to become a
sati since ancient times. Legislature took serious steps by introducing a special law for the
treatment of persons who abet sati and made it exemplarily punishable up to the death
sentence under the Commission of Sati Act, 1987. Now in most areas of India, it is a forgotten
system. These laws relating to sati, widow remarriage, and child marriage were enacted due
to public opinion.
6. Elimination of Child Labour: Preventing a child from enjoying his childhood is a grave crime.
The Factories Act 1881 was the first one of its kind to prohibit employment of children below
the age of 7 years and working hours were limited. we have the Child Labour (Prohibition and
Regulation) Act 1986 which generalizes the age of children up to 14 years prohibition of child
labour.
7. Right to Information – For Effective Governance: The Right to know is implicit in the right of
free speech and expression and disclosure of information regarding the functioning of the
government must be the rule. The Right to Information Act of 2005 has proved to be strong
legislation with good teeth because of its effective implementation of the Act.
8. Female Infanticide: To save the lives of girls in India GOI enacted the Pre-Conception and
Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994. The act banned prenatal sex
determination. Effective implementation of the law as an instrument or device of social
change should work in tandem with the social and cultural life of the people of India.

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2. 2. Discuss Legal Theories involved in Social Transformation and Law

Different legal theories developed throughout societies. Though there are several theories, only four
of them are dealt with here. They are Natural, Positive, Marxist, and Realist Law theories. You may
deal with other theories in detail in your course on jurisprudence.

NATURAL LAW THEORY: Natural law theory is the earliest of all theories. It was developed in
Greece by philosophers like Heraclitus, Socrates, Plato, and Aristotle. It was then followed by other
philosophers like Gairus, Cicero, Aquinas, Gratius, Hobbes, Lock, Rousseau, Kant and Hume. In their
studies of the relationship between nature and society, these philosophers have concluded that two
types of law govern social relations. One of them is made by a person to control the relations within a
society and so it may vary from society to society and also from time to time within a society. The
other one is that not made by a person but controls all human beings in the world. Such laws do not
vary from place to place and from time to time and are even used to control or weigh the laws made
by human beings. These philosophers named the laws made by human beings positive laws and the
laws do not make by human being natural laws.

Natural law is given different names based on its characteristics. Some of them are the law of reason,
eternal law, rational law, and principles of natural justice.

POSITIVE LAW THEORY: Positive law theory is also called, imperative or analyst's law theory. It
refers to the law that is laid down by separating “is” from the law, which is “ought” to be. It has the
belief that law is the rule made and enforced by the sovereign body of the state and there is no need
to use reason, morality, or justice to determine the validity of the law. According to this theory, rules
made by the sovereign are laws irrespective of any other considerations. These laws, therefore, vary
from place to place and from time to time. The followers of this theory include Austin, Bentham and
H.L.A Hart. For these philosophers and their follower law is a command of the sovereign to his/her
subjects and there are three elements in it: command; sovereign; and sanction. The command is the
rule given by the sovereign to the subjects or people under the rule of the sovereign. Sovereign refers
to a person or a group of persons demanding obedience to the state. Sanction is the evil that follows
violations of the rule.

MARXIST LAW THEORY: Marxists believe that private property is the basis for the coming into
existence of law and state. They provide that property was the cause for the creation of classes in the
society in which those who have the means of production can exploit those who do not have these
means by making laws to protect private property. They base their arguments on the fact that there
was neither law nor state in primitive society for there was no private property. The theory has the
assumption that people can attain perfect equality at the communist stage in which there would be no
private property, no state and no law. But, this was not yet attained and even the practice of the major
countries like the former United Soviet Socialist Russia (U.S.S.R.) has proved that the theory is too
good to be turned [Beset; 2006 ]. Nevertheless, this theory is challenged and the theory of private
property triumphs.

REALIST THEORY OF LAW: The realist theory of law is interested in the actual working of the law
rather than its traditional definitions. It provides that the law is what the judge decides in court.
According to this theory, rules not put to use to solve practical cases are not laws but merely exist as
dead words and these dead words of law get life only when applied in reality. Therefore, it is the
decision given by the judge but not the legislators that are considered law according to this theory.
Hence, this theory believes that the lawmaker is the judge and not the legislative body.
This theory has its basis in the common law legal system in which the decision previously given by a
court is considered as a precedent to be used as a law to decide the future similar case. This does not

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apply to the civil law legal system, which is the other major legal system of the world, and as a result,
this theory has been criticized by scholars and countries following this legal system for the only laws
of their legal system are legislation but not precedents. This implies that the lawmaker in the civil law
legal system is the legislative body but not the judge.

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3. 3. Identify the affirmative actions taken which resulted in social legislation in India

In India, the Scheduled Castes (SCs) and Scheduled Tribes (STs), which together constitute a quarter
of the total population, have long suffered from discrimination and exclusion. This is reflected in a lack
of access to income-earning assets, higher-quality employment and public services. They also
experience resistance, violence and even atrocities in their attempts to secure human rights and
lawful entitlements. The discrimination and exclusion experienced by these groups have resulted in
severe deprivation and poverty.

The Indian government’s approach towards these groups consists of three main elements. These are:

 legal and other safeguards against discrimination;

 affirmative action measures in the state and state-supported sector;
 general developmental and empowerment measures in the private sector.

Affirmative action policies in India are operative in three main spheres, namely appointment and
promotion in government services, admission to public education institutions, and seats in the
legislature. In government services, there are reservations for SCs and STs in proportion to their
share of the population, in the civil service, public companies, statutory bodies, and voluntary
agencies, although not in defence or the judiciary. In education, the government reserves place for SC
and ST students in all government-run educational institutions. In political representation,
constituencies are reserved for SCs and STs in Central and State legislatures in proportion to their
population share. In each case, there are complementary provisions designed to increase the ability
of SCs and STs to take advantage of the opportunities offered.

India’s current affirmation action policy, otherwise known as the ‘reservation policy’, is operative in
three main spheres, namely appointment and promotion in government services, admissions to public
educational institutions, and seats in Central, State and local legislatures.

Government services

The most important aspect of the reservation policy is that relating to government services. Article 16
(4) of the constitution empowers the State to make “any provision for the reservation in appointments,
or posts in favour of any backward class of citizens”, and “provision for reservation in matters of
promotion to any class or classes of posts, in the services under the State in favour of the SCs and
STs.”

In pursuing this provision, the Government made a reservation for SCs and STs in proportion to their
share of the population. There are also reservations about the promotion of employed persons. The
government services included are the Government civil service, public sector undertakings, statutory
and semi-Government bodies, and voluntary agencies which are under the control of the government
or receiving grant-in-aid. At the central level, some services are however excluded from the
reservation policy; these include, most prominently, defence and the judiciary.

Reservation is accompanied by other provisions designed to increase the ability of SCs and STs to
compete for government jobs. These include the relaxation of the minimum age for entry into the
service, relaxation in the minimum standard of suitability (subject to a required minimum qualification),
the provision of pre-examination training, separate interviews for SCs and STs, and representation of
people with SC or ST backgrounds on selection committees.

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Education

The second most important aspect of reservation policy relates to education. Article 15 (4) of the
constitution empowers the State to make special provisions for the educational advancement of SCs
and STs. In pursuing this provision, the State reserves place for SC and ST students in educational
institutions, including all colleges run by the Central or State governments and all government-aided
educational institutions. This is supported by several financial schemes, including scholarships,
special hostels for SC and ST students, fee concessions, grants for books, and additional coaching.

Political representation

The third most important sphere of the reservation policy relates to representation in Central and
State legislatures. Under Articles 330, 332 and 334 of the Constitution, seats are reserved for SCs
and STs in the Central legislature and State legislatures. Similar reservations are provided in local
level bodies at district, Taluk and village levels. The reservation of seats is complemented by statutory
provisions to enhance political participation by SCs and STs; smaller election deposits are required
from members of these groups for example.

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4. Elucidate Relevancy Of Marist And Weberian Analysis To The Problem Of Planned
Economic Development In Developing Society

Among early sociologists that have recognized the interrelation between legal institutions and social
order are:

Karl Marx

Karl Marx says that every society, regardless of its stage of historical development, rests on an
economic foundation. He calls this//**mode of production**// of commodities and it has 2 elements:

1. Physical or technological arrangement of economic activity

2. Social relations of production or human attachments among people when they engage in
economic activity

Changes in the mode of production change the way that people are attached to production
technology.
Marx’s theory of law has 3 main assumptions:

1. Law is a product of evolving economic forces

2. Law is a tool used by the ruling class to maintain power over the lower class
3. In communist societies, the law as a form of social control will finally disappear

The idea of this economic determinism is related to dialectical materialism which suggests that the
political, social, religious and cultural order in any epoch is determined by the existing system of
production and the superstructure on top of the economic basis. So, for Marx law is a dependent
function of the economy. He says that law expresses the will of the ruling class that controls and owns
the means of production and has the power of enforcement through the use of armed bodies. Finally,
he suggests that in the communist states, there will be no need for laws because everyone’s needs
will be fulfilled and such states will exist forever.

Max Weber

Max Weber's typology of legal systems is based on 2 fundamental distinctions.

1. Legal procedures are rational or irrational. Rational procedures use logic and scientific
methods to achieve objectives. Irrational procedures rely on ethical or mystical considerations
such as magic or supernatural forces.
2. Legal procedures can proceed, rationally or irrationally, with respect to formal or substantive
laws. Formal laws refer to making decisions based on established rules regardless of
fairness. Substantive laws take into account the circumstances of individual cases based on
the just.
3. All these create 4 ideal types: 

1. Substantive irrationality - when a case is decided on a religious, emotional or political

basis instead of general rules. Example: decisions of religious judges regardless of legal
principles.
2. Formal irrationality - rules based on supernatural forces. It is irrational because no one
tries to understand why it works and formal procedures do not allow tolerance(ex:10
commandments in the bible).

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 3. Substantive rationality - application of rules from nonlegal sources like religion, ideology
and science. Rational because rules are from specific and accepted sources, and
substantive because each case is considered specific. Example: efforts of Ayatollah
Khomeini in Iran trying to make decisions based on Kuran.
4. Formal rationality - the use of consistent, logical rules independent of moral religion or
normative criteria that are applied equally in each case. Ex: modern American or Western
law.

Referring to these types, Weber identifies 3 types of administration of justice: 

 Kahdi justice is dispensed by the judge of the Islamic Shari’s Court. It is based on religion
and lacks procedural rules. Kuran (the word of God) is the heart of the legal system
in Iran and Pakistan.
 Empirical justice, which means deciding cases by referring to analogies and interpreting
precedents is more rational than Kahdi’s but not completely. Weber argues that primitive laws
are more rational and universalistic while modern ones are particularistic.
 The rational system looks toward a contract, not toward status. Modern and Western law
also rely on facts and logical analysis of the meaning of abstract legal concepts.

To sum up, Weber separates modern society from primitive ones on basis of the rational. He says that
modern society is in pursuit of the rational and that laws are becoming more institutionalized as states
are bureaucratized.

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5. Discuss the Law relating to the Protection of SC. And STs in Indian Society with Examples
and Case Laws

In 1989, the Government of India enacted the Scheduled Castes and Tribes (Prevention of Atrocities)
Act to prevent atrocities against SC/STs. The purpose of the Act was to prevent atrocities and help in
the social inclusion of Dalits into society, but the Act has failed to live up to its expectations.

The Act came into force with effect from 30.1.1990. This legislation aims at preventing the
commission of offences by persons other than Scheduled Castes and Scheduled Tribes against
Scheduled Castes and Scheduled Tribes. The Act provides for punishment for offences of atrocities
committed against Scheduled Castes and Scheduled Tribes. Comprehensive Rules under the Act
were notified in the year 1995, which inter-alia provides norms for relief and rehabilitation.

Offenders, Victims And Offences Under The Act

Any person who is not a member of a scheduled caste or a scheduled tribe and commits an offence
listed in the Act against a member of a scheduled caste or a scheduled tribe is an offender.

The victim is a member of a scheduled caste or a scheduled tribe against whom any of the following
offences are committed by the offender:

1. Forced to eat or drink an offensive or uneatable substance;

2. Caused annoyance, injury or insult by any excreta or waste matter being dumped in his
premises or neighbourhood;
3. Paraded naked or with a painted face or body;
4. Wrongfully deprived of cultivation of his land;
5. Wrongfully deprived of his rights over any land, premises or water;
6. Forced to do beggary or work as a bonded labourer;
7. Prevented from exercising his right to vote or according to his wishes;
8. Subjected to false legal proceedings;
9. Caused injury or annoyance by a public servant based on false information given to him;
10. Deliberately insulted and humiliated in public view;
11. A woman who is sexually assaulted;
12. Deprived of his right to clean drinking water;
13. Deprived of his right of passage to a public place;
14. Forced to leave his house or village;
15. Falsely implicated in a criminal case which might result in his imprisonment or execution;
16. Intended harm or injury by burning a place of his dwelling or worship;
17. Wrongfully caused injury or subjected to any other offence by a public servant

Besides this section 2 of the Act provides that whoever, not being a member of a Scheduled
Caste or a Scheduled tribe:

1. gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he
will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted
of an offence which is capital by the law for the time being in force shall be punished with
imprisonment for life and with fine; and if an innocent member of a Scheduled Caste or a
Scheduled Tribe be convicted and executed in consequence of such false or fabricated
evidence, the person who gives or fabricates such false evidence, shall be punished with
death;
2. gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he
will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted

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 of an offence which is not capital but punishable with imprisonment for a term of seven years
or upwards, shall be punishable with imprisonment for a term which shall not be less than six
months but which may extend to seven years or upwards and with fine;
3. commits mischief by fire or any explosive substance intending to cause or knowing it to be
likely that he will thereby cause damage to any property belonging to a member of a
Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for a term
which shall not be less than six months but which may extend to seven years and with fine;
4. commits mischief by fire or any explosive substance intending to cause or knowing it to be
likely that he will thereby destroy any building which is ordinarily used as a place of worship or
as a place for human dwelling or as a place for the custody of the property by a member of a
Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for life and
with fine
5. commits any offence under the Indian Penal Code punishable with imprisonment for a term of
ten years or more against a person or property on the ground that such person is a member
of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall
be punishable with imprisonment for life and with fine;
6. knowingly or having reason to believe that an offence has been committed under this
Chapter, causes any evidence of the commission of that offence to disappear to screen the
offender from legal punishment, or with that intention gives any information respecting the
offence which he knows or believes to be false, shall be punishable with the punishment
provided for that offence; or
7. being a public servant, commits any offence under this section, shall be punishable with
imprisonment for a term which shall not be less than one year but which may extend to the
punishment provided for that offence.

Nature And Punishments For An Offence Under This Act

1. All offences listed in the Act are cognizable. The police can arrest the offender without a
warrant and start an investigation into the case without taking any orders from the court.
2. The Act prescribes both minimum as well as maximum punishment. The minimum in most
cases is six months imprisonment while the maximum is five years sentence with a fine. In
some cases, the minimum is enhanced to one year while the maximum goes up to life
imprisonment or even a death sentence.
3. Section 4 of the act deals with punishment for neglect of duties by a public servant. According
to this section, If a public servant, who is not a member of the Scheduled Caste or Scheduled
Tribe, deliberately neglects his duties, which he should perform under the Act, he is liable for
punishment with imprisonment up to six months.
4. Section 5 provides enhanced punishment for a subsequent conviction. Whoever, having
already been convicted of an offence under this Chapter is convicted for the second offence
or any offence after the second offence shall be punishable with imprisonment for a term
which shall not be less than one year but which may extend to the punishment provided for
that offence.

Constitution of Special Courts

Chapter 4 of the act clearly states the constitution of special courts for hearing cases on atrocities
against scheduled castes and scheduled tribes. To provide for a speedy trial, the State Government
shall with the concurrence of the Chief Justice of the High Court, by notification in the official gazette,
establish in each district a Court of Session to be a Special Court exclusively to try the offences under
this Act.

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6. Explain in Detail on Sabarimala Case Law

Sabarimala temple is an ancient Ayyappan temple. Ayyappan is also known as Dharmasastha and
Sastha. It is located in the Pathanamthitta district of Kerala. The Sabarimala temple background
states that women of reproductive age, i.e., 10-50 years, are not allowed to visit the temple. This
decision was taken by the Devaswom Board: the board that manages the temple. It is because Lord
Ayyappan is a celibate deity. Even Kerala High Court supported this notification and provided a legal
justification. Hence from 1991, women were legally not allowed to visit the temple.

However, on 28th September 2018, the Supreme Court of India passed a judgement saying that all
devotees can enter the temple, regardless of gender. The ban on women violated the Right to
Freedom (Article 25) and the Right to Equality (Article 14).

In a 4:1 judgment, a 5-membered constitution bench of the Supreme Court, in  the Indian Young
Lawyers Association vs. the State of Kerala, has allowed women of all ages to worship in
Sabarimala Temple.

 In its judgment, SC stated that 'devotion cannot be subjected to gender

discrimination'.
 Chief Justice Dipak Misra, Justice RF Nariman, Justice AM Khanwilkar and Justice DY
Chandrachud constituted the majority, while the lone woman judges on the Bench,
Justice Indu Malhotra dissented.
 The petitions had challenged the Constitutional validity of Rule 3(b) of the Kerala
Hindu Places of Public Worship (Authorisation of Entry) Rules,
1965, which restricts the entry of women into the Sabarimala Temple as
being  ultra-vires Section 3 of the Kerala Hindu Places of Public Worship
(Authorisation of Entry) Act, 1965 which states that places of public worship are to be
open to all sections and classes of Hindus.

Sabarimala Temple Issue

 Located in the forests of the Western Ghats in Kerala’s Pathanamthitta district, the hill
shrine is dedicated to Lord Ayyappa and is managed by the Travancore Devaswom
Board (TDB).
 The Sabarimala temple prohibits women aged between 10 and 50 years from entering
the shrine.
 It is said that its deity, Lord Ayyappa, is a “Naisthik Brahmachari” and that allowing
young women to enter the temple would affect the idol’s “celibacy” and “austerity”.
 The Travancore Devaswom Board has said that the prohibition on women of
menstruating age from entering the temple is a part of the 'essential religious
practice' of Lord Ayappa devotees.
 The petitioners have argued that the ban enforced on menstruating women from
entering the Sabarimala shrine does not constitute a core foundation of the religion.
 Preventing women’s entry to the temple with an irrational and obsolete notion of “purity”
offends the equality clauses in the Constitution.
 It takes away the woman’s right against discrimination guaranteed under Article 15(1) of
the Constitution.
 It also curtails the religious freedom assured by Article 25(1).
 In 1991, Kerala High Court upheld the prohibition on young women’s entry into
Sabarimala Shrine. The High Court had pointed out that the ‘Naisthik Brahmachari’
nature of the deity was “a vital reason for imposing this restriction on young women”.

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Supreme Court Judgment 

Majority Judgement

 SC has ruled that Rule 3(b) is ultra-vires the Constitution, Section 3 of the Kerala
Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 as well as Section 4
of the 1965 Act which says that the regulations/rules made under this act shall not
discriminate, in any manner whatsoever, against any Hindu on the ground that he/she
belongs to a particular section or class.
 Supreme Court condemned the prohibition as "hegemonic patriarchy" (hegemonic
patriarchy means that patriarchy has become such an over-arching idea that
discrimination based on it appears to be common sense to such an extent that not
only men, even women become the supporter and perpetrator of the very notion which
discriminates them).
 It said that exclusion on grounds of biological and physiological features like
menstruation was unconstitutional. It amounted to discrimination based on a biological
factor exclusive to gender. It was violative of the right to equality and dignity of
women.
 SC said that prohibition founded on the notion that menstruating women are "polluted
and impure" is a form of untouchability and the notions of purity and pollution
stigmatized women.
 SC also held that Ayyappa devotees do not form a separate denomination just
because of their devotion to Lord Ayyappa, but it is only a part of Hindu worship.
 SC overturned the 1951 judgment of Bombay High Court in the State of Bombay
versus Narasu Appa Mali which held that the personal law is not 'law' or 'law in force'
under Article 13 and held that immunising customs takes away the primacy of the
constitution.
 No customs or usages can claim supremacy over the Constitution and its vision of
ensuring the sanctity of dignity, liberty, and equality and customs and personal law
have a significant impact on the civil status of individuals.

Dissent Opinion

 Justice Indu Malhotra dissented from the majority opinion and held that notions of
rationality cannot be invoked in matters of religion by courts.
 She held the determination of what constituted an essential practice in a religion
should not be decided by judges based on their viewpoints. The essentiality of
religious practice or custom had to be decided within the religion and it is a matter of
personal faith.
 Justice Malhotra observed that the freedom to practice their beliefs was enshrined in
Article 25 of the Constitution. Harmonisation of fundamental rights with religion
included providing freedom for diverse sects to practice their customs and beliefs.

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7. Discuss the equality in the matter of employment in Martial Law

Introduction

Congressman John Rowan of Kentucky once said that “Society will never submit life to the
discretion of a military court, except under the most absolute and imperious necessity, in
which a civil court cannot interfere, particularly during war.” When martial law is asserted, civil
liberties, such as the right to free movement, freedom of speech and expression or protection from
unreasonable searches, can be suspended.

The justice system that typically handles issues of criminal and civil law is replaced with a military
justice system, such as a military tribunal. Civilians could also be in remission for violating curfews or
for offences that, in normal times, would not be considered serious enough to warrant detention. Laws
relating to habeas corpus that are designed to forestall unlawful detention can also be suspended,
permitting the military to detain individuals indefinitely while not having a chance of recourse.

What is Martial Law?

Martial law in simple words is a law administered by the military rather than a civilian government
under extraordinary circumstances like war, invasion, insurrection, rebellion, riot or any violent
resistance to the law. Its justification is to rebel force through force to bring normalcy for maintaining
or restoring order in society.

How is Martial law different from Military law?

Military Law is statutory and applies to members of the military and armed forces whereas Martial Law
is the law of necessity and inevitably exists for the protection of society when, and where, civilian
authorities and courts are unable to operate.

What happens when the Military acts independently of civilian authorities and courts?

In a state where the military acts independently of the civilian authorities and courts, the civilian
authorities and courts may be allowed to function, but they function not as of right but rather in
subordination to the military authority and to the will of the general or other officers in command, by
whose permission it is exercised, and under whose direction they conduct judicial business and
administer the law.

Why was the Armed Forces Special Powers Act, of 1958 enacted by the Parliament?

The AFSPA is a very peculiar piece of legislation. It was enacted in 1958 in the wake of violence that
had become, “the way of life in the north-eastern States of India” which the state administration was
unable to contain. It, therefore, became necessary that the state administration be aided by the
military to contain this violence (caused by the Naga rebellion) and restore normalcy in the state.
Accordingly, choosing a ‘quintessential military response’ on September 11, 1958, the Indian
Parliament enacted the AFSPA.

Where is Martial law defined in the Indian Constitution?

Martial law is not described anywhere in our constitution but, Article 34 of the Indian Constitution
mentions the same. It imposes restrictions on fundamental rights while martial law is in force in any
area within the territory of India. It empowers the Parliament to indemnify any government servant or

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others for any act done by him in connection with the maintenance or restoration of order in any area
where martial law was in force.

Has Martial law ever been declared in India post-independence?

Martial law has never been declared in India post-independence but there are several occasions
when martial law has been declared before India got its freedom.

The declaration of martial law could be a rare and significant call for a civilian government to make.
When martial law is declared, civilian control of some or all aspects of government operations is
ceded to the military. This implies that, in the case of elected governments, the representatives
chosen by the voting population aren’t any longer in power.

We can see this as a privilege that after India got independent until currently there has been no need
for it to implement Martial Law in the state. Declaring martial law is a last resort reserved for situations
where law and order are rapidly deteriorating. Therefore, it may only be declared to reign in protests,
civil unrest, a state of war or insurrections.

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8. What are Democratic Decentralization and Local Self Government

Democratic Decentralisation

Decentralisation means the distribution of power and responsibility and authority of decision-making to
the lower level of governance. The main reason for decentralisation is that several issues can be
efficiently solved at the local level

Democratic Decentralisation in India

The Government of India introduced the concept of democratic decentralisation for the good
governance and development of rural and urban areas at the grassroots level. To deal with poverty
and the sustainable development of the country, the key component is the decentralisation of power in
which the authority for some functionality and resources is taken from the state government and given
to the local government. 

In 1992, when the 73rd and 74th Constitutional Amendment Acts passed that transfer of power to
popularly elected local governments, it was a crucial step toward the decentralisation of power. The
73rd Constitutional Amendment Act introduced Panchayati Raj Institutions (PRIs), which were not a
completely new concept; it has been in existence for centuries with the name, Gram Panchayat.
Panchayati Raj Institutions (PRIs) are responsible for the development of rural areas. The 74th
Constitutional Amendment Act was introduced for the development of urban areas where municipal
bodies have the power and authority to plan for economic development and implementation of
schemes.

Devolution of authority and resources are given to local governments permanently. The state
government does not give the authority to gather tax from the public to the local government, but the
state government funds them, handles taxes, and provides staff so that they can carry out their
responsibilities. Local government, which includes panchayats and municipalities, is a state subject.
Consecutively, power and authority have devolved to panchayats and municipalities at the discretion
of states.

The units of the local self-government at three levels in the rural areas are drawn from the panchayat
raj are District Panchayat (Zila Parishad), Taluka (Block Development) and Village Panchayat

The Telangana Panchayat Raj Act provides for the constitution of Gram Panchayats, Mandal
Praja Parishads, and Zilla Praja Parishads and matters related to their government

1. The Village Panchayat: Each village has a Gram Sabha. It elects by direct election, the village
panchayat, Grama Sabha is the general body of a village. It consists of all men and women of
the village, whose age is above 18 years and qualified voters. The sarpanch of a village
panchayat is directly elected by the Gram Sabha. The panchayat areas are divided into wards
and each ward sends its representatives to the village panchayat.
2. Mandal Praja Parishad: The village Panchayat has limited sources, so it cannot fulfil all its
needs on its own. There are certain problems which are common to the neighbouring villages
also. If they pull their resources and join hands together they can solve their common
problems. The organisation which works for the development of a block is called panchayat
Samiti or Block Samiti. (Samiti Sabha)
3. Zila Parishad or Zila Panchayat: The Zila Parishad is the heist level in the three-tier system of
the panchayat Raj. Zila Parishad prepares plans for the development of its district. A district
panchayat shall have a chairperson and vice chairperson elected by its elected members.

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Urban Local Self-Government:

1. Nagar Panchayat: It is the smaller units of the urban population. A town is bigger than a
village but smaller than a city. For every town, a Nagar Panchayat is elected for five years by
the population.
2. Municipal Council: It is the cities which are bigger than towns but not big, the criteria are
divided according to the population of the cities. A city is divided into wards and each ward
elects one representative to the city.
3. Municipal Corporation: It is the megacities Municipal Corporation that is elected. The head or
chairperson of a municipal corporation is known as Mayor.

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9. Crimes against Women in Modern Social Change

Incidences like sexual abuse by near relatives, co-habitation with near or dear friends and subsequent
decline of marriages and issues relating to illegal pregnancy etc. are the real facts, the information of
which remains mostly in darkness. In addition, girl students molested by teachers or repeated sexual
abuse by antisocial activists are also unfortunate realities.

Women's exploitation in the form of physical and mental torture of wives by husbands is also
common, mostly where women are simply a housewife and not associated with any employment. As a
result, they are compelled to keep their head down in a speechless manner tolerating the cruelty of
their husband helplessly. This ultimately makes them mentally disordered for which they often take
the shelter of suicide or other means of malpractice that result in very disgraceful social, moral,
ethical, and after all economic support to them.

With time, days and society, there are a lot of movements relating to this exploitation of women but
still, men are forward in status as compared to women and Indian society is male-dominated where
females are being exploited spatially. According to Purana, there was violence against women in
ancient India, but there was strong punishment for that offence irrespective of caste (Das, 1990).
However, some main aspects of such exploitation may be highlighted as follows

1) Use of women to earn money

2) Physical and mental harassment by men in society
3) Trafficking of women
4) violence against women

Different forms of women exploitation in present society

The exploitation of women in various forms and different natures. It includes crimes involving sexual
exploitation for economic gains like prostitution & trafficking, adultery, abduction, rape, wrongful
confinement, and murder etc on the one hand and crimes related to women's property like dishonest
misappropriation, criminal breach of trust, domestic violence, dowry extortion and outraging the
modesty of women etc on the other. These crimes are not only injurious and immoral for women but
for society as a whole.

Domestic Violence: In Indian families, the man is the master and the woman is the inferior and
subordinate partner and societal pressure forces women to maintain this status quo. Wife beating is
the most prevalent form of violence against women in Indian society and it is viewed as a general
problem of domestic discord.

Female Infanticide and Feticide: This is playing a significant role in the lopsided sex ratio in India.
Poor families in certain regions of the country sometimes resort to killing baby girls at birth, to avoid
an unwanted burden on family resources. Sex-selective abortion has also been common in the
country. It's dangerous to abort the foetus after 18 weeks of pregnancy and quite harmful for the
mother too at such a late stage.

Dowry: The Dowry Prohibition Act of 1961 marks the first attempt by the Government of India to
recognize dowry as a social evil and to curb its practice. The act was modified with the Dowry
Prohibition Amendment Act of 1984, which has again been modified with the Dowry Prohibition Bill
1986. Women's organizations have played a key role in this process of change. The 1961 Act defines
dowry and makes the practice of dowry- giving and taking, a punishable offence. Dowry is one of

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those social evils that no educated woman will own up to with pride; still many are adhering to it.
Practices of dowry tend to subordinate women in society.

Some Indian Penal Codes And Special Local Laws Of Crimes Against Women

crimes which are directed specifically against Women are characterized as ‘Crimes Against Women’.
Various new legislations have been brought and amendments have been made to existing laws to
handle these crimes effectively. These are broadly classified under two categories.

(1) The Crimes under the Indian Penal Code (IPC)

(i) Rape (Sec. 376 IPC)

(ii) Kidnapping & Abduction for specified purposes (Sec. 363 - 373 IPC)
(iii) Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC)
(iv) Torture - both mental and physical (Sec. 498-A IPC)
(v) Molestation (Sec. 354 IPC) (vi) Sexual Harassment (Sec. 509 IPC)
(vii) Importation of girls (up to 21 years of age) (Sec. 366-B IPC)

(2) The Crimes under the Special & Local Laws(SLL)

Although all laws are not gender specific, the provisions of laws affecting women significantly have
been reviewed periodically and amendments carried out to keep pace with the emerging
requirements. The gender-specific laws for which crime statistics are recorded throughout the country
are

(i) Immoral Traffic (Prevention) Act, 1956

(ii) Dowry Prohibition Act, 1961
(iii) Indecent Representation of Women (Prohibition) Act, 1986

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10. Role of Modern Women in Indian Society

Women from different sections of society are placed in very different situations in modern India. Some
women are entering new fields and achieving the same feats as men, while some girls are being killed
even before they are born. In earlier times women were seen only in the household, but this
expectation is changing slowly, as they are coming to the fore and challenging traditional mindsets.
The modern Indian society, impacted by globalization and influenced by values of equality and liberty,
seems to have accepted a more elevated position of women. The position of women in our society is
determined by contradictory values, concerns, and forces. While there is a great improvement in their
position, when we compare it to that of men, there is a long way to go before equality is achieved.

Areas where the position of women is equal to men

 When it comes to political rights, the Indian Constitution grants equal positions to men and
women, such as the right to vote, contest elections, and citizenship.
 Women and men are considered equal in law. They enjoy equal rights and privileges and all
rules apply to them equally. Some legal provisions, such as the law against dowry, seek to
improve the current position of women in society.
 Some may also argue that in jobs, salaries, and other economic opportunities women enjoy
equal positions as men, but this can be contested as there is hidden discrimination against
women employees while hiring, offering salaries, etc.

Areas where the position of women is unequal to men

 Women enjoy lower status than men in many cultures and families when it comes to deciding
whom to marry, inheriting property, and getting equal pay for equal work among other things.
 If we look at development indicators such as health, educational achievements, and
wealth/income, it is clear that Indian women fair worse than Indian men. This points towards a
systemic bias against women in society.
 Women face higher levels of violence, unfair treatment in society, and unequal access to
resources when compared with men.

Factors that affect the position of women

 Cultural bias against girls and preference for sons majorly undermines the position of women
in private as well as the public sphere.
 Like most modern societies, Indian society is patriarchal and this leads to unequal positions of
women although that is being challenged and changed.

Future of women’s position in India

 The future for women looks positive in modern India if we compare their position vis-a-vis
men at the time of independence to now. Women have better access to education, health,
and opportunities than before even though not equal.
 The government has played an important role in hastening the process of women’s
empowerment through various acts, schemes, and provisions, such as reservation in local
panchayats, but it needs to continue aggressive efforts to give equal positions to women.
 The cultural attitude towards women in India is changing with changing times, as women are
getting educated, proving their mettle, and showing that they can be positioned equal to men
if they are given the same opportunities.

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Conclusion

 Women in modern Indian society enjoy equal positions as men in many areas such as
politics, economics, and legal rights, although in many areas they are still not treated equally
to men.
 Patriarchal society, a cultural preference for sons, and systemic bias against women have
undermined their position in society for a long time.
 The future looks bright for women in modern Indian society as government initiatives are
helping them overcome prejudice and societal attitudes are changing. Women are proving to
be capable of being equal to men, as they get more opportunities.

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