UNIT – III
I) Q. What are the provisions under Indian Constitution related to Children?
Children and Law:- Almost one-third of the world’s population comprises of children. Children deserve
to be cared and protected to keep up and improve posterity. Children are important component of the
social structure and the potential future carriers of the culture. Unfortunately, the position of children is
not good despite enactment of various legislations and the problem of child labour is spreading rapidly.
The Constitution of India makes numerous provisions for the welfare of children. Some Articles
are as follows:- Articles 15(3), 21, 21A, 23, 24, 39(e), 39(f), 43, 45 and 51A(k).
(i) State empowered to enact law for benefit of child:- The State is empowered to make the
special provisions relating to child, it will not be violative of right to equality(Article 15(3).
(ii) Protection of life and personal liberty:- No person shall be deprived of his life or personal
liberty, except according to procedure established by law(Art.21).
(iii) Fundamental right to education:- The State shall provide free and compulsory education to
all children of the age of six to fourteen years, in such manner as the State may, by law,
determine(Article 21A)
(iv) Prohibition of traffic in human beings and forced labour:- Traffic in human beings and
beggar and other similar forms of forced labour are prohibited and any contravention of this
prohibition shall be an offence punishable in accordance with law(Article 23).
(v) Prohibition of employment of children in factories etc: - 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.
(vi) Health and strength of children are not to be abused:-The State shall, in particular, direct
its policy towards securing that health and strength of the tender age of children are not
abused and that citizens are not forced by economic necessity to enter avocations unsuited
to their age or strength(Article 39).
(vii) Children are given opportunities and facilities to develop:- The State shall, in particular,
direct its policy towards securing that children are given opportunities and facilities to
develop in a healthy manner and in conditions of freedom and dignity; and that childhood
and youth are protected against exploitation and against moral and material
abandonment(Article 39 f).
(viii) Living wage, etc. for workers:- The State shall endeavor to secure, by suitable legislation or
economic organization or in any other way, to all workers, … a living wage, conditions of
work ensuring a decent standard of life and full enjoyment of leisure and social and cultural
opportunities …(Article 43).
(ix) Early childhood care and education to children below the age of six years:- the State shall
endeavour to provide early childhood care and education for all children until they complete
the age of six years(Article 45).
(x) Fundamental duties of parent to educate their children: It shall be the duty of every citizen
of India, who is a parent or guardian to provide opportunities for education to his child or
ward, as the case may be, between the age of six and fourteen years.
Other legal provisions for the welfare of Children:-
1. The Children (Pledging of Labour) Act, 1933;
2. The Factories Act, 1948;
3. The Minimum Wages Act, 1948;
4. Plantation Labour Act, 1951;
5. The Mines Act, 1952;
6. The Merchant Shipping Act, 1958;
7. the Motor Transport Workers Act, 1961;
8. The Apprentices Act, 1961;
9. The Schools and Establishments Act, 1961;
10. The Beedi and Cigar Workers(Conditions of Employment) Act, 1966; and
11. The Child Labour(Prohibition and Regulation) Act, 1986.
II) Law and social transformation
Justice Bhagwati quoted “ If, the law fails to respond to the needs of changing society, then
either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it
will cast away the law which stands in the way of its growth. Law must, therefore, constantly be on the
move adapting itself to the fast changing society and not lag behind.”
The law and social transformation is a unique subject and studies the social problems of the
societies and their solutions through legal approach. In fact there are two modes of changing law.
Firstly, “law changed the society”; which means that the law of the land compels the society to be
changed according to the law. Secondly, “society changed the law”, it means law is made by the society
according to its requirement by its democratic institution, i.e., Legislative or by adopting custom and
usage. The prime function of the legislators is to enact the laws according to the desire of the society.
Definition of law:- “ Law is a rule of conduct, prescribed by the supreme power in the State,
commanding which is right and prohibiting what is wrong. Jurisprudentially, law consists of rules
prescribed by society for the governance of human conduct.”
Law should not be definite, but must be transformable according to the requirement and
necessity of the society, arising out of passing of time. Judicial activism is a kind of “construction”; court
has to do social justice and not only legal justice.
Law as an instrument of social change
Law is an instrument of social change, law changes its shape according to the requirement of
society or society changes the law through enactment of statutes. 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.
Here are some special changes that have taken place in India through enactment of statutes.
1. Abolition of Sati system: - In ancient times sati system was prevailing in India. In 1871 Lord
Bentinck declared this act as an offence. Raja Rammohan Roy brought social revolution for
removal of sati system. Section 306 of the IPC was enacted which makes abetment of sati as
an offence of abetment of suicide. Commission of Sati(Prevention) Act, 1987 was enacted
for the treatment of persons who abet Sati and makes provision for exemplary punishable
up to death sentence. Now, almost all areas of India have forgotten sati system.
2. Muslim women are entitled for maintenance:- The Supreme Court in Shah Bano Begum’s
case held that if the divorced woman is able to maintain herself, the husband’s liability
ceases with the period of iddat, but, if, she is unable to maintain herself after the period of
iddat, she is entitled to maintenance u/s 125 Cr.PC. This led to a controversy and the
Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed to dilute the said
judgment.
3. Free education is fundamental right:- The Supreme Court held that the right to education is
a fundamental right under Article 21 which directly flows from the right to life. The
legislature has amended the Constitution, by introducing Art.21-A and made right to
education, fee and compulsory for children of the age 6 to 14 years.
4. Public Interest Litigation:- The innovation of PIL has liberalised the concept of locus standi
for those who due to lack of sound economic conditions are deprived access to court to seek
justice for their rights. Any public-spirited person or social action group through may seek
redressal of genuine public grievances through PIL.
5. Punishment should be measured in social interest:- It is settled principle now that
punishment should respond to the society’s cry for justice against criminals. The crime is
not committed against the individual but against the society.
6. Right to Information:- The RTI Act, 2005 was enacted for public transparency in
Government working. Now the citizens can seek information from the Government about its
working which is proving to be an effective watchdog on the functioning of the Government
and proving helpful in preventing corruption.
7. Compulsory registration of marriage:- Marriages in India are governed by customs. The
Supreme Court has held that the marriage registration is compulsory in the whole territory
of India.
8. Law relating to prisoners:- Many prison reforms are taken. An attempt is being made to
reform the criminals so that they can become useful to the society while serving their term
in jails. Various provisions has been made for the welfare of prisoners viz. reading and
writing books; liberal use of parole; segregation of prisoners; etc.
9. Abolition of polygamy:- Section 494 IPC provides that whoever having a wife living, marries
in any case such marriage is void by reason of its taking place during the life of such wife,
shall be punished with imprisonment up to seven years and fine.
10. Restriction on child marriage:- Child Marriage Restgraint Act, 1929 was enacted which was
replaced by Prohibition of child Marriage Act, 2006.
11. Abolition of slavery system:- Article 23 prohibits bonded labour. A special Act Bonded
Labour System(Abolition) Act, 1976 was enacted to provide for abolition of slavery system.
12. Law and child labour:- Article 24-prohibits employment of children under 14 years in
hazardous occupation. Child Labour(Prohibition and Regulation) Act, 1986 was enacted for
removal of child labour.
13. Law and prostitution:- Various measures are being taken to rehabilitate the prostitutes and
their children. Prostitutes are not criminals but victims of the society. Provisions of
education is being made for their children.
14. Video-conferencing evidence is admissible:- The Supreme Court has held that court can
issue a commission to record evidence by way of video-conferencing.
Law as as the product of tradition and culture
Tradition and culture meaning:-
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, or all of these in a particular society or group. In other words,
tradition means a long established custom or belief(set of precedent), handed down from generation to
generation.
Culture means the way of life, especially the general customs and beliefs of a particular group of
people at the particular time. Culture refers to the cultivation of superior intellectual abilities and
spiritual refinements.
Law as the product of tradition and culture:- Where does the law come from it is, ultimately a product
of tradition. The ultimate aim of the law is to change the society peacefully, but tradition and culture
create hindrance to it. Basically tradition and culture are connect with the religions. Religion is the
original of law, but is also true that all the traditions are good for the society. Here, we are going to
discuss that during the period of the colonial rule, how Indian tradition became a hindrance in
recognizing the law or guided the judiciary in interpretation of law.
(a) Family Law and tradition:- India is divided into five religious communities, namely, Hindus,
Muslims, Christians, Parsis and Jews, but laws are limited to matrimonial relations and
remdy thereof, maintenance, succession, will, partitions, religious endowment, adoption
and guardianship etc.
In 1772, Warren Hastings enacted that in all suits regarding “inheritance, marriage, caste and
other religious usage or institutions, the law of Quaran with respect to Muslims and law of Shastras
with respect to Hindus shall be invariably adhered to. Later on this policy was rigidly adhered to and
this provision was reiterated in the later regulations. The Privy Council had observed that “Under
the Hindu system of law, clear proof of usage will outweigh the written text of law.”. The Supreme
Court held that in the absence of any clear shastric text, the courts have the authority to decide
cases on the principles of justice, equity and good conscience. On this principle the privy council
had decided a case that murderer was disqualified from succeeding to the property of the victim.
(b) Tradition of Sati system:- In ancient times sati system was prevailing in India. In 1871 Lord
Bentinck declared this act as an offence. Raja Rammohan Roy brought social revolution for
removal of sati system. Section 306 of the IPC was enacted which makes abetment of sati as
an offence of abetment of suicide. Commission of Sati(Prevention) Act, 1987 was enacted
for the treatment of persons who abet Sati and makes provision for exemplary punishable
up to death sentence. Now, almost all areas of India have forgotten sati system.
(c) Tradition of polygamy: During the colonial time, polygamy had existed in India and there
was no restriction on bigamy , except under Mohammedan Law. In 1860 under IPC bigamy
was made a specific offence under section 494, but permitting it where is was allowed by
customs. Hindu Marriage Act, 1955 and Special Marriage Act, 1954 were enacted which
prohibits more than one marriage and makes bigamy a punishable offence under IPC.
(d) Tradition of child marriage: - During the colonial time, India witnessed child marriages. The
Indian legislature has substituted the Act of 1929 by introducing the Prohibition of Child
Marriage Act, 2006. The Act instead of restriction of child marriage focuses on prohibition
of it, therefore, enhanced the punishments. The Act also recognizes legitimacy of children
born of child marriages.
(e) Tradition of adultery under common law and in India:- Regarding the tradition and
adultery, we find some shadow of Indian tradition on the Indian criminal laws. The makers
of the IPC were totally aware of the traditions of India. IPC makes provisions for the offence
of adultery and makes it punishable. They specified this offence according to the tradition
of India.
(f) Husband and wife are different persons in India:- In India husband and wife were always
treated different persons, and Britishers did not impose their law and did not recognize
husband and wife as single person.
(g) Traditional system of settlement of disputes:- Since ancient times in Indian tradition and
culture, Panchayat used to decide the case which act a Grama Nyayalaya which general gave
the punishment of social boycott for the limited period. Besides, village panchayat, there
was Khap(gotra) panchayat at district level, caste panchayat and maha caste panchayat at
national level. Punishments given by these panchayats were generally of fine , and social
boycott, which were based totally on morals.
(h) Tortious liability of the King and the State: Under British law “the King cannot do wrong”,
an action for a personal wrong will not lie against the sovereign. In India, the principle “the
King cannot do wrong” has never been applied. Even the King or the State is amenable to
the law.
Conclusion: The significant element in the interaction between law and society in India is the heavy
burden on these multiple traditions and the social concerns and orientations of each. Progress and
transformation from a colonial traditional feudal society to a post-industrial egalitarian society
founded on non-exploitation and where there was no place for arbitrariness in any walk of life were
the major goals of independence to be achieved through constitutional revolution. These goals
were put in the forefront by giving them the place of pride in the preamble followed by the Directive
Principles of State Policy in Part IV of the Constitution.
….
I) Q. What are the provisions under Indian Constitution related to Children?
Children and Law:- Almost one-third of the world’s population comprises of children. Children deserve
to be cared and protected to keep up and improve posterity. Children are important component of the
social structure and the potential future carriers of the culture. Unfortunately, the position of children is
not good despite enactment of various legislations and the problem of child labour is spreading rapidly.
The Constitution of India makes numerous provisions for the welfare of children. Some Articles
are as follows:- Articles 15(3), 21, 21A, 23, 24, 39(e), 39(f), 43, 45 and 51A(k).
(i) State empowered to enact law for benefit of child:- The State is empowered to make the
special provisions relating to child, it will not be violative of right to equality(Article 15(3).
(ii) Protection of life and personal liberty:- No person shall be deprived of his life or personal
liberty, except according to procedure established by law(Art.21).
(iii) Fundamental right to education:- The State shall provide free and compulsory education to
all children of the age of six to fourteen years, in such manner as the State may, by law,
determine(Article 21A)
(iv) Prohibition of traffic in human beings and forced labour:- Traffic in human beings and
beggar and other similar forms of forced labour are prohibited and any contravention of this
prohibition shall be an offence punishable in accordance with law(Article 23).
(v) Prohibition of employment of children in factories etc: - 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.
(vi) Health and strength of children are not to be abused:-The State shall, in particular, direct
its policy towards securing that health and strength of the tender age of children are not
abused and that citizens are not forced by economic necessity to enter avocations unsuited
to their age or strength(Article 39).
(vii) Children are given opportunities and facilities to develop:- The State shall, in particular,
direct its policy towards securing that children are given opportunities and facilities to
develop in a healthy manner and in conditions of freedom and dignity; and that childhood
and youth are protected against exploitation and against moral and material
abandonment(Article 39 f).
(viii) Living wage, etc. for workers:- The State shall endeavor to secure, by suitable legislation or
economic organization or in any other way, to all workers, … a living wage, conditions of
work ensuring a decent standard of life and full enjoyment of leisure and social and cultural
opportunities …(Article 43).
(ix) Early childhood care and education to children below the age of six years:- the State shall
endeavour to provide early childhood care and education for all children until they complete
the age of six years(Article 45).
(x) Fundamental duties of parent to educate their children: It shall be the duty of every citizen
of India, who is a parent or guardian to provide opportunities for education to his child or
ward, as the case may be, between the age of six and fourteen years.
Other legal provisions for the welfare of Children:-
1. The Children (Pledging of Labour) Act, 1933;
2. The Factories Act, 1948;
3. The Minimum Wages Act, 1948;
4. Plantation Labour Act, 1951;
5. The Mines Act, 1952;
6. The Merchant Shipping Act, 1958;
7. the Motor Transport Workers Act, 1961;
8. The Apprentices Act, 1961;
9. The Schools and Establishments Act, 1961;
10. The Beedi and Cigar Workers(Conditions of Employment) Act, 1966; and
11. The Child Labour(Prohibition and Regulation) Act, 1986.
II) Law and social transformation
Justice Bhagwati quoted “ If, the law fails to respond to the needs of changing society, then
either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it
will cast away the law which stands in the way of its growth. Law must, therefore, constantly be on the
move adapting itself to the fast changing society and not lag behind.”
The law and social transformation is a unique subject and studies the social problems of the
societies and their solutions through legal approach. In fact there are two modes of changing law.
Firstly, “law changed the society”; which means that the law of the land compels the society to be
changed according to the law. Secondly, “society changed the law”, it means law is made by the society
according to its requirement by its democratic institution, i.e., Legislative or by adopting custom and
usage. The prime function of the legislators is to enact the laws according to the desire of the society.
Definition of law:- “ Law is a rule of conduct, prescribed by the supreme power in the State,
commanding which is right and prohibiting what is wrong. Jurisprudentially, law consists of rules
prescribed by society for the governance of human conduct.”
Law should not be definite, but must be transformable according to the requirement and
necessity of the society, arising out of passing of time. Judicial activism is a kind of “construction”; court
has to do social justice and not only legal justice.
Law as an instrument of social change
Law is an instrument of social change, law changes its shape according to the requirement of
society or society changes the law through enactment of statutes. 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.
Here are some special changes that have taken place in India through enactment of statutes.
1. Abolition of Sati system: - In ancient times sati system was prevailing in India. In 1871 Lord
Bentinck declared this act as an offence. Raja Rammohan Roy brought social revolution for
removal of sati system. Section 306 of the IPC was enacted which makes abetment of sati as
an offence of abetment of suicide. Commission of Sati(Prevention) Act, 1987 was enacted
for the treatment of persons who abet Sati and makes provision for exemplary punishable
up to death sentence. Now, almost all areas of India have forgotten sati system.
2. Muslim women are entitled for maintenance:- The Supreme Court in Shah Bano Begum’s
case held that if the divorced woman is able to maintain herself, the husband’s liability
ceases with the period of iddat, but, if, she is unable to maintain herself after the period of
iddat, she is entitled to maintenance u/s 125 Cr.PC. This led to a controversy and the
Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed to dilute the said
judgment.
3. Free education is fundamental right:- The Supreme Court held that the right to education is
a fundamental right under Article 21 which directly flows from the right to life. The
legislature has amended the Constitution, by introducing Art.21-A and made right to
education, fee and compulsory for children of the age 6 to 14 years.
4. Public Interest Litigation:- The innovation of PIL has liberalised the concept of locus standi
for those who due to lack of sound economic conditions are deprived access to court to seek
justice for their rights. Any public-spirited person or social action group through may seek
redressal of genuine public grievances through PIL.
5. Punishment should be measured in social interest:- It is settled principle now that
punishment should respond to the society’s cry for justice against criminals. The crime is
not committed against the individual but against the society.
6. Right to Information:- The RTI Act, 2005 was enacted for public transparency in
Government working. Now the citizens can seek information from the Government about its
working which is proving to be an effective watchdog on the functioning of the Government
and proving helpful in preventing corruption.
7. Compulsory registration of marriage:- Marriages in India are governed by customs. The
Supreme Court has held that the marriage registration is compulsory in the whole territory
of India.
8. Law relating to prisoners:- Many prison reforms are taken. An attempt is being made to
reform the criminals so that they can become useful to the society while serving their term
in jails. Various provisions has been made for the welfare of prisoners viz. reading and
writing books; liberal use of parole; segregation of prisoners; etc.
9. Abolition of polygamy:- Section 494 IPC provides that whoever having a wife living, marries
in any case such marriage is void by reason of its taking place during the life of such wife,
shall be punished with imprisonment up to seven years and fine.
10. Restriction on child marriage:- Child Marriage Restgraint Act, 1929 was enacted which was
replaced by Prohibition of child Marriage Act, 2006.
11. Abolition of slavery system:- Article 23 prohibits bonded labour. A special Act Bonded
Labour System(Abolition) Act, 1976 was enacted to provide for abolition of slavery system.
12. Law and child labour:- Article 24-prohibits employment of children under 14 years in
hazardous occupation. Child Labour(Prohibition and Regulation) Act, 1986 was enacted for
removal of child labour.
13. Law and prostitution:- Various measures are being taken to rehabilitate the prostitutes and
their children. Prostitutes are not criminals but victims of the society. Provisions of
education is being made for their children.
14. Video-conferencing evidence is admissible:- The Supreme Court has held that court can
issue a commission to record evidence by way of video-conferencing.
Law as as the product of tradition and culture
Tradition and culture meaning:-
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, or all of these in a particular society or group. In other words,
tradition means a long established custom or belief(set of precedent), handed down from generation to
generation.
Culture means the way of life, especially the general customs and beliefs of a particular group of
people at the particular time. Culture refers to the cultivation of superior intellectual abilities and
spiritual refinements.
Law as the product of tradition and culture:- Where does the law come from it is, ultimately a product
of tradition. The ultimate aim of the law is to change the society peacefully, but tradition and culture
create hindrance to it. Basically tradition and culture are connect with the religions. Religion is the
original of law, but is also true that all the traditions are good for the society. Here, we are going to
discuss that during the period of the colonial rule, how Indian tradition became a hindrance in
recognizing the law or guided the judiciary in interpretation of law.
(a) Family Law and tradition:- India is divided into five religious communities, namely, Hindus,
Muslims, Christians, Parsis and Jews, but laws are limited to matrimonial relations and
remdy thereof, maintenance, succession, will, partitions, religious endowment, adoption
and guardianship etc.
In 1772, Warren Hastings enacted that in all suits regarding “inheritance, marriage, caste and
other religious usage or institutions, the law of Quaran with respect to Muslims and law of Shastras
with respect to Hindus shall be invariably adhered to. Later on this policy was rigidly adhered to and
this provision was reiterated in the later regulations. The Privy Council had observed that “Under
the Hindu system of law, clear proof of usage will outweigh the written text of law.”. The Supreme
Court held that in the absence of any clear shastric text, the courts have the authority to decide
cases on the principles of justice, equity and good conscience. On this principle the privy council
had decided a case that murderer was disqualified from succeeding to the property of the victim.
(b) Tradition of Sati system:- In ancient times sati system was prevailing in India. In 1871 Lord
Bentinck declared this act as an offence. Raja Rammohan Roy brought social revolution for
removal of sati system. Section 306 of the IPC was enacted which makes abetment of sati as
an offence of abetment of suicide. Commission of Sati(Prevention) Act, 1987 was enacted
for the treatment of persons who abet Sati and makes provision for exemplary punishable
up to death sentence. Now, almost all areas of India have forgotten sati system.
(c) Tradition of polygamy: During the colonial time, polygamy had existed in India and there
was no restriction on bigamy , except under Mohammedan Law. In 1860 under IPC bigamy
was made a specific offence under section 494, but permitting it where is was allowed by
customs. Hindu Marriage Act, 1955 and Special Marriage Act, 1954 were enacted which
prohibits more than one marriage and makes bigamy a punishable offence under IPC.
(d) Tradition of child marriage: - During the colonial time, India witnessed child marriages. The
Indian legislature has substituted the Act of 1929 by introducing the Prohibition of Child
Marriage Act, 2006. The Act instead of restriction of child marriage focuses on prohibition
of it, therefore, enhanced the punishments. The Act also recognizes legitimacy of children
born of child marriages.
(e) Tradition of adultery under common law and in India:- Regarding the tradition and
adultery, we find some shadow of Indian tradition on the Indian criminal laws. The makers
of the IPC were totally aware of the traditions of India. IPC makes provisions for the offence
of adultery and makes it punishable. They specified this offence according to the tradition
of India.
(f) Husband and wife are different persons in India:- In India husband and wife were always
treated different persons, and Britishers did not impose their law and did not recognize
husband and wife as single person.
(g) Traditional system of settlement of disputes:- Since ancient times in Indian tradition and
culture, Panchayat used to decide the case which act a Grama Nyayalaya which general gave
the punishment of social boycott for the limited period. Besides, village panchayat, there
was Khap(gotra) panchayat at district level, caste panchayat and maha caste panchayat at
national level. Punishments given by these panchayats were generally of fine , and social
boycott, which were based totally on morals.
(h) Tortious liability of the King and the State: Under British law “the King cannot do wrong”,
an action for a personal wrong will not lie against the sovereign. In India, the principle “the
King cannot do wrong” has never been applied. Even the King or the State is amenable to
the law.
Conclusion: The significant element in the interaction between law and society in India is the heavy
burden on these multiple traditions and the social concerns and orientations of each. Progress and
transformation from a colonial traditional feudal society to a post-industrial egalitarian society
founded on non-exploitation and where there was no place for arbitrariness in any walk of life were
the major goals of independence to be achieved through constitutional revolution. These goals
were put in the forefront by giving them the place of pride in the preamble followed by the Directive
Principles of State Policy in Part IV of the Constitution.
….
