Adjustment of Law of Social needs is a continuing process’. In the light of this statement discuss modernization trends in different areas.

III) Q. ‘Adjustment of Law of Social needs is a continuing process’.  In the light of this statement

discuss modernization trends in different areas.

(a) FAMILY LAW

In India, family law is divided into five schools, namely, Hindus, Muslims, Christians, Parsis and

Jews, each governed by their own family laws.  The law which governs that particular family relating

to family relations, is called their family law.

Before 19th century all family laws were uncodified.  But in 19th and 20th century a lot of

codifications took place for the development of personal laws.

Reforms in family law:-

(i) Restriction on Child Marriage:- The Child Marriage(Restraint) Act, was enacted in 1929 to

stop the customary practice of child marriage- marriage age 21 for male and 18 for female.

This Act has now been substituted by the Prohibition of Child Marriage Act, 2006.

(ii) Abolition of polygamy:- Before independence, polygamy existed in India, whereas it was an

offence punishable under section 494 IPC.  The Muslim law restricted it to four marriages at

the time.  The Christian law prohibits polygamy by Section 60 of Indian Christian Marriage

Act, 1872.  Section 5 of Hindu Marriage Act, 1955  restricted Hindus to one marriage.  The

Supreme Court in Saraa Mudgal’ case directed the Central Government to frame Uniform

Civil Code under Article 44 of the Constitution.

(iii) Prevention of Dowry system:- The Legislature has enacted special law on prohibition of

dowry, called the Dowry Prohibition Act, 1961 which provides penalty for taking or giving of

dowry.

(iv) Allowed inter-caste and inter-religious marriage:- Special Marriage Act, 1954 was enacted

to allow inter-caste and inter-religious marriage.

(v) Supreme Court ordered State to take stern action in case of honour killings.

(vi) Abolition of dasi and dev-dasi system:- The social evil of dasi and dev-dasi was abolished

from India by various State legislations.

(vii) Right to maintenance for Muslims women under Section 125 of Cr.PC:- In Shah Bano’s case

the Supreme Court held that the provisions relating to maintenance under section 125 of

Cr.PC are secular in nature and applicable to all citizens of India, irrespective of religion.

(viii) Separation of Family Courts:- Family Courts Act, 1984 was enacted to provide for the

establishment of Family Court with a view to promote conciliation  and secure speedy

settlement of disputes relating to marriage, matrimonial disputes.  The Family Court shall be

deemed to be a District Court

(ix) Grounds for dissolution of marriage to Muslim women was provided:- The Dissolution of

Muslim Marriage Act, 1930  provides that a woman married under Muslim law shall be

entitled to obtain a decree for dissolution of marriage on  specific grounds.

(x) Adoption (in-country and inter-country) –Hindu Adoptionand Maintenance Act, 1956

applies to Hindu for adoption of a child.  Guardian and Ward Act, 1890 was common for all

religions but that provides for appointment of guardian only.  The Hon’ble Supreme Court

has issued guidelnes for Inter-country adoption and the Government of India has issued

Guideline 1994 for the same.  The legislature has made provisions under the Juvenile

Justice(Care and Protection of Children) Act, 2000 to adopt children irrespective of having

any number of children.

(xi) 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 and has directed the Centre and States to make provisions.

(xii) Share of women in succession:- Hindu women are having equal share in the succession

according to the Amendment of 2005 in Hindu Succession Act.

(b) LOCAL SELF GOVERNMENT:

Mahatma Gandhiji said “A country cannot be developed without the participation of village unit

local self government’.

The Constitution makers have not given any importance to local self-government.  Merely, Part IV

(Directive Principles off State Policies)  has provided in the form of Article 40 about the organization of

village panchayats which states that “the State shall take steps to organize village panchayats and

endow them with such powers and authority as may be necessary to enable them to function as units of

self-government”.

To follow Article 40 many States have enacted the village panchayats and municipalities but they

were not able to function satisfactorily without constitutional powers.

Bodies of local self-government are divided into two parts:- rural and urben.  In rural areas are is

three tier system, i.e., village panchayat, block development committee and the Zila Parishad.  At the

urban level there is Nagar Panchayat, Municipal council and Municipal Corporation.

The Constitution (73rd Amendment) Act, 1992 gives recognition to Panchayats.  Constitution (74th

Amendment) Act, 1992 gives recognition to Municipalities.  By these Amendments 34 new Articles have

been inserted in Articles 243 to 243 ZG.  Thus, a third tier of governmental instrumentalities has been

added to the Union and State.   These Amendments made some fundamental changes in our political

structure and the status of local institutions which provide the State Legislatures to make their own laws

for establishing Panchayat, and Municipalities and conferring on them such powers and authority as

may be necessary to enable them to function as institutions of self-government.  Now, almost all the

States have made Act on the Panchayati Raj, in the year 1993 or in 1994 to empower the units of

Panchayati Raj.

Local Self-Governing Bodies in Rural Areas:-

(i) The Village Panchayat(Gram Sabha):- It is the general body of a village elected by direct

election.  Village Panchayat consists of some wards fromwhere members are sent to the

village panchayat.  Pradhan(Sarpanch) is the Chairman of the village panchayat.  The

function of the village panchayat is to prepare plans for economic development and social

justice in the village.

(ii) Panchayat Samiti (Block Development Committees or Taluka Panchayats):- This is a body

of the local self government at Block level and works for the development of a block.  It have

a president(Parmukh) and a vice-president elected by direct election.

(iii) Zila Parishad or Zila Panchayat:- This is the highest level in the three tier system of local self

government.  Its area extends to district or Zila.  Zila Parishad prepares plans for the

development of its district.  It also works for the social and economic welfare of the people.

At this level important officers of the district administration are also involved who give their

full-cooperation for the smooth and effective functioning of this body.

Local Self-Governing Bodies in Urban Areas:-

i.) NagarPanchayat:- It is the smaller unit of the urban population. For every town, a

Nagar Panchayat is elected for five years for a transitional area (called Kasba, in UP

or town ).  (Article 243 Q(1)(a).

ii.) Municipal Council:-The In the cities which are bigger than towns, but not big cities,

there shall be constituted a Municipal Council for cities.  (Article 243 Q(1)(b).  It is

also called Municipal Committees or Municipal Boards.

iii.) Municipal Corporation:- In the mega cities, Municipal Corporation is elected.

Article (Article 243 Q(1)(c) provides that there shall be constituted a Municipal

Corporation for a larger urban area(big cities) like Delhi, Mumbai, Kolkata and

Hyderabad etc.  This body is elected by direct election.  The city is divided into wards

and each ward sends one representative to the corporation.  The head or chairman

of the Corporation is known as Mayor or Mahapaur.  The functions of the

Corporation are (i) the  preparation of plans for economic development and social

justice; (ii) the performance of functions and the implementation of schemes as may

be entrusted to them including those in relation to the matters listed in the Twelfth

Schedule.

Some common provisions for Rural and Urban Panchayats

i.) Article 243 D for rural  and Article 243 T for urban provides for reservation for SC

and STs in rotation.

ii.) Article 243 E for rural and 243 U for urban provides for duration of five years unless

sooner dissolved under law.

iii.) Article 243 H for rural and Art. 243X for urbal empower to impose taxes.

iv.) Article 243 I for rural and Art. 243 Y for urban provides for constitution of Finance

Commissions to review their financial position.

v.) Article 243 J for rural and Art. 243 Z provides for audit of accounts.

vi.) Article 243 ZD provides for Committees for district planning for overall development

of the district through local self government.

vii.) Article 243ZE provides for Committee for Metropolitan Planning to prepare a draft

development plan for the metropolitan area.

viii.) Article 243L for rural and 243 ZB for urban, provides that the provisions of these

parats shall apply to the UTs.

(c) Court Processes –(1) Civil Law:-  Justice VR Krishna Iyer quotes “The poor cannot reach the court

because of heavy court fee and other expenditure, the mystique of legal procedure.  The

hierarchy of courts, wth appeals, puts legal justice beyond the reach of the poor.  “If the people

lose faith in the Bench and the Bar, they will easily take to remedies in the streets.  This will

inevitably lead to downfall of democracy and the impotency of the court.”

Modernization trends in civil law: - This topic for the purposes of study may be divided into four

parts, namely [A] Alternate Dispute Resolution System(ADRS); [B] Arbitration; [C] Conciliation; and

[D] Lok Adalat.

[A] Alternate Dispute Resolution System(ADRS):-In ADRS the disputes are settled in a quick and

cost-effective manner as the procedure followed is non-formal without strict adherence to

procedural aspects. The Government has also given a tremendous boos to the ADRS by establishing

special tribunals and mediation centres by means of various Acts.  Now, before the case could reach

the court of law, an endeavor is made to settle it through mediation centers set up at the district

level.  At district court level and at the High Court also we find that full fledged system of mediation

centres is working very effectively.  It is seen that the complex to complex disputes are settled

through trained mediators very quickly.  On the consent of the parties the Court may also refer the

pending case to the mediation centre for settlement and if the dispute is settled through mediation,

the same is recorded and no appeal or review lies against the same.

[B] Arbitration:-The law relating to arbitration in India was governed by the Arbitration Act, 1940,

but in 1996 this Act was substituted by Arbitration and Conciliation Act, 1996.  Halsbur denies

arbitration as “an arbitration is the reference of a dispute or difference between not less than two

parties for determination, after hearing both sides in judicial manner, by a person or persons other

than a court of competent jurisdiction.”  Section 2(a) of the Arbitration and Conciliation Act, 1996

defines arbitration as “any arbitration whether or not administered by permanent arbitral

institutions”.  An arbitral award made under this Act shall be considered as a domestic award.

The advantages of arbitration are that it is very expeditious, award can be quickly implemented,

cost of arbitration generally are lesser than cost of court proceedings; and arbitration proceedings

can be more flexible than those of court proceedings.

 [C] Conciliation:- The Arbitration and Conciliation Act, 1996 makes express provisions for

conciliator.  Before, these provisions there were special provisions for conciliation office, Board of

Conciliation under the I.D. Act, 1947.  Conciliator is one who brings opponents into harmony, or one

who conciliates the parties.

Where a party is initiating conciliation, it shall send to the other party, a written invitation to

conciliate, briefly identifying the subject of the dispute.  If the other party accepts in writing the

invitation to conciliate, then conciliation proceedings shall commence; but if the other party rejects

the invitation, there will be no conciliation proceedings.

Section 67 of the Arbitration and Conciliation Act defines the role of conciliator in the

conciliation proceedings.  The Conciliator shall assist the parties in an independent and impartial

manner in their attempt to reach an amicable settlement.  The settlement agreement reached

between the parties after conciliation becomes final and binding on the parties.  Such settlement

agreement should be in writing and signed by the parties.  When the parties sign the settlement

agreement, it shall be final and binding on the parties.   The settlement agreement shall have the

same effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by

a an arbitral tribunal under section 30.

 [D] Lok Adalat:- The Courts are heavily burdened with cases.  There is already a backlog of lakhs of

cases in the Indian courts at various stages and thousands of new cases are filed daily.  The number

of courts and number of judges are less as a result of which the backlog is increasing day by day.

Article 39-A of the Constitution of India provides for equal justice and free legal aid.  It was in this

context that the Parliament enacted the Legal Services Authorities Act, 1987.

The Legal Service Authorities Act, 1987 provides for Lok Adalats.  Lok Adalat is a supplementary

forum for the settlement of disputes. The Lok Adalats are meant under this Act for a speedy, simple,

effective and less expensive solution of the disputes of all kinds of cases except criminal cases and

cases in Session’s trial.  This is the simplest method, which is devoid of procedural wrangles of

regular trial.  The award of the Lok Adalat carries the force of the decrees of the civil court and is

final, binding and non-appealable.

Matters pending or at pre-trial stage, provided a reference is made to it, by a court or by the

concerned authority or committee, when the dispute is at the pre trial stage and not before a court

of law, can be referred to Lok Adalat.  The Parliament enacted the Legal Services Authorities Act,

1987 with one of its  aims to organize to organize Lok Adalats to secure that, the operation of legal

system promotes justice on the basis of an equal opportunity.  The Act gives statutory recognition to

the resolution of disputes by compromise and settlement by the Lok Adalats.

In Abdul Hasan vs. Delhi Vidyut Board, AIR 1999 Delhi 88, the Delhi High Court passed an order

giving directing for setting up of permanent Lok Adalats.

Section 19(1) of the Legal Services Authority Act provides for organization of Lok Adalats at an

interval  as thinks fit by the Supreme Court/High Court/State/Distt. Legal Services Authority.

Section 21 of the Act provides that every award of the Lok Adalat shall be deemed to be a

decree of a civil court...  The award of the Lok Adalat shall be final and binding on all the parties to

the dispute and no appeal shall lie to any court against the award.   Section 22 of the Act provides

that the Lok Adalat have the same powers as are vested in a civil court under CPC.

The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman with two

other members usually a lawyer and a social worker. There is no court fee.

The system of lok adalat is very effective and efficient, pioneering and soothing alternative

mode of dispute settlement which is accepted as viable, economic, efficient, informal, expeditious

form of resolution of disputes.  It is a hybrid of admixture of mediation, negotiation, arbitration and

participation.  The true basis of settlement of dispute by the Lok Adalat is the principle of mutual

consent. It will go a long way in the system of ADRS.

 (2) Criminal Law:- Reform in the criminal court processes has taken place in various fields, but to

make the trial speedy and look into the rights of victims, three things are important, namely, plea

bargaining, compounding of offences and payment of compensation to the victims.  When an

allegation is made against any person that he has committed a crime; the basic principle of law is

that offence should be proved by the prosecution which course takes a long time and results in

increasing load of cases in the courts, it is urged to introduce plea bargaining.  Compounding of

offence is also not possible in all the cases but, a list of offences is prescribed by Cr.PC which may be

compensated, but not beyond this list.  It is felt that in many case, if we are not compensating the

victim, justice is failed to be made.

1. PLEA BARGAINING:- Plea bargaining are legal transactions, in which a defendant pleads guilty to

a lesser charge or to the original charge in exchange for leniency in punishment.

The concept of plea bargaining is not defined under any statute but it literally means bargain

with accused person in pleading him guilty.

Difference between “plea of guilty” and “plea bargaining”:-

(a) the ‘plea of guilty’ is fully recognized by Indian criminal judicial system but ‘plea bargaining’ was

not recognized and accepted before the amendment of 2005.

(b) In the case of plea of guilty, the judiciary gives the punishment according to the offence plead

guilty.  There is no mercy on the accused on the ground that he pleads guilty.  In the case of plea

bargaining the court gives a lesser punishment.

(c) In plea of guilty the accused plead guilty at his free will and without any coercion or undue

influence, but in plea bargaining, the will of the accused is not fully free and fair but he is influenced

or coerced.

(d) In the case of plea of guilty there is no interference of any other person(prosecutor, Judge or

police) but, in plea bargaining, the accused is seemed to be compelled to plead guilty on agreement,

in return of imposition of nominal punishment.

Indian judiciary on plea bargaining:-

(a) Plea bargaining is not “procedure established by law”, hence violative of Article 21. (Kasambhai

Abdul Rehman Bhai Sheikh vs. State of Gujarat, AIR 1980 SC 854).

(b) Enhancement of sentence by appellate or revisional court, is violative of Art. 21. (Thippeswamy

vs. State of Karnataka, AIR 1983 SC 747).

The Criminal Law (Amendment) Act, 2005:- Section 4 of the Act has inserted the provisions relating

to plea bargaining as a new Chapter XXI-A (12 sections Sec. 265 A to 265 L) in the Cr.PC.

(i) Application of plea bargaining:- Application for plea bargaining may be filed (a) where a

report of the police officer after completion of investigation, alleges that the accused has

committed the offence punishable upto seven years of imprisonment; (but not punishable

with death sentence or imprisonment for life) or (b) A Magistrate has taken cognizance of an

offence on complaint punishable upto seven years of imprisonment(but not punishable with

death sentence or imprisonment for life); and after examining the complaint and witnesses,

issued the process against the accused.

(ii) Restriction on plea bargaining:- Application for plea bargaining cannot be allowed in (a)

socio-economic offences; (b) offences against women; (c) any offence against children

below the age of 14 years.

(iii) Procedure for plea bargaining:- Accused files an application before the court where the trial

is pending, application shall contain brief description of case, supported with an affidavit of

the accused that he has voluntarily preferred this application and he has not previously

been convicted by a court in a case in which he had been charged with the same offence.

On receipt of such application the court shall issue notice to the PP or the complainant and

to the accused to appear.  When they appear the court shall examine the accused in camera

where the other party in the case shall not be present, to satisfy itself that the accused has

filed the application voluntarily.

(iv) Mutually satisfactory disposition:- On reaching a mutual settlement of the case, the plea

bargaining court sends the report of the mutually satisfactory disposition to the court where

the matter was pending who records the settlement and dispose of the case accordingly.

The judgment given by the court shall be final and no appeal(except SLP under Art. 136 and

writ under 226 and 227) shall like in any court against such judgment.

2. COMPOUNDING OF OFFENCES:-  The meaning of compounding of offence means that both the

parties arrived at a settlement between them.  But this is not allowed in every case; compounding of

offence is not allowed other than in the offences listed under section 320 of Cr.PC.

It is to be noted that all crimes are against the State and offender shall be punished by the

appropriate authority to maintain law and order.  But, still section 320 Cr.PC provides for compounding

of offences.  Before compounding, the parties have to take the permission of the court before which the

case is pending.

The Supreme Court has held that the policy of parliament adopting section 320 CrPC is that in

the case of certain minor  offences, in which interest of the public are not vitally  affected, the

complainant should be permitted to come to terms with the party against whom he complains, the

offence being specified in section.  The court also made provision for composition of this so that the law

must take its course and the charge enquired into resulting either in conviction or acquittal.

[Bishwabahan v. Gopen AIRF 1967 SC 895].

3. COMPENSATIN TO THE VICTIMS:- The principle object of section 357 Cr.PC is to provide

compensation to the persons who are entitled to recover damages from the person sentenced even

though fine does not form pat of the sentence. In awarding compensation it is not necessary for the

court to decide whether the case is fit one in which compensation has to be awarded.  If it is found that

compensation should be paid then the capacity of the accused to pay compensation has to be

determined.  The main object of compensation is to collect fine and pay it to the person who has

suffered the loss.

Provisions for payment of compensation to victims under criminal law is provided under section

357 of Cr.PC.  The power of court to award compensation to victim under section 357 is not ancillary to

other sentences, but it is in addition thereto. In awarding compensation, no sum in excess of the loss

actually suffered by the complainant should be ordered to be paid.

In Rudal Shah v. State of Bihar AIR 1983 SC 1086, the Supreme Court evolved a principle that “if

any fundamental right of any person is violated, and no remedy is provided by the law, then victim can

be compensated in monetary form”.

Compensation to the victims is a kind of relief which surely will be beneficial for the

rehabilitation of the victims and their relatives.

What are the provisions under Indian Constitution related to Children?

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.

….

Legislative Procedure, Ordinary and money bills, joint session, Assent to bills.

III) Legislative process in India

1. Legislative Procedure, Ordinary and money bills, joint session, Assent to bills.

MONEY BILL

Article 110:A Bill shall be deemed to be a Money Bill if it contains only provisions dealing

with all or any of the following matters namely:-

a) the imposition, abolition remission, alteration or regulation of any tax;

b) the regulation of the borrowing of money or the giving of any guarantee by the

Government of India, or the amendment of the law with respect to any financial

obligations undertaken or to be undertaken by the Government of India.

c) the custody of the Consolidated Fund or the Contingency Fund of India, the

payment of moneys into or the withdrawal of moneys from any fund;

d) the appropriation of money out of the Consolidated Fund of India;

e) the declaring of any expenditure to be expenditure charged on the Consolidated

Fund of India or the increasing of the amount of such expenditure;

f) the receipt of money on account of the Consolidated Fund of India, or issue of

such money or the audit of the accounts of the Union or of a State; or

g) any matter incidental to any of the matters specified in sub-clauses(a) to (f);

a bill shall not be Money Bill by reason only that it provides for the position of fines or other

pecuniary penalties or for the demand or payment of fees for frences or fees for services

rendered or by reason that it provides for the imposition, abolition remission alteration or

regulation of any tax any local authority or body for local exposes.

If any question arises whether Bill is a Money Bill or not the decision of the Speaker of the House

of the people there on shall be final.

When a Money Bill is sent to the Council of States or to President for assent, a certificate of the

Speaker of the House of the People signed by him that it is a Money Bill is to be endorsed on it.

Procedure for Money Bill

Article 109:

1) A Money Bill  can be introduced only in the House of the People.

2) It cannot he introduced in the Council of States.

3) When a Money Bill is passed by the House of the People, it is sent to the Council

of States for its recommendation.

4) The Council of States has to return the Bill within 14 Days from the date of its

5) If the House of the people accepts recommendation, the Bill is deemed to have

6) If the House of the people does not accept the amendments suggested by the

7) When a Money Bill, after being passed by the House of the people is sent to the

receipt with is recommendation which the house of the people may or may not

accept.

been passed by houses with amendments suggested by the council of States.

Council of States, the Money Bill is deemed to have been passed by both House

of the form in which it was passed by the House of the people without any

amendments made by the Council of States.

Council of States for recommendations but the Council of States fails to return

the Money Bill within 14 days of its receipts, then, return the Money Bill within

14 days of its receipt, then, after expiry of the said period of 14 days, the Bill is

deemed to the passed by both Houses in the form in which it was passed by the

House by the House of the People.

Rajya Sabha thus enjoys only a recommendatory authority over the passages of Money Bill.  It is

not authorized to reject or amend the Money Bill by the Lok Sabha.

President’s Assent to Money Bills.

Article 111: provides that when a Bill is passed the Houses of Parliament, it shall be presented to

the President for his assent and the President shall declare either that he assents to the Bill or

that he withholds his assent there from.  This is the general procedure and Money Bill has no

exception.  But the proviso to article 11 authorizes the President to send back a Bill to House for

reconsideration only if the Bills is not a Money Bill.  However, since the President acts on the

advice of the Council of Ministers in this case too is the advice of Council of Ministers, which

prevails.

ORDINARY BILLS

An ordinary Bill can be introduced in either House of Parliament.  In this respect both houses

have equal powers.

If a bill introduced in the House of the people is pending when the House of the People of

dissolved the Bill shall lapse.

A Bill which is passed by the House of the People and is pending in the Council of states, or if a

Bill s passed by the Council of States and the same is pending in the House of the People, then,

in any of these cases the Bill will lapse on dissolution of the House of the People except where

the President has already, notified his intention of summon of the Houses or meet in joint

sitting, under Article 108.

When a Bill is introduced in the Council of States and is pending there, it will not lapse by reason

of dissolution of the House of the People.  A Bill pending in either House does not laps merely by

reasons of the prorogation of the Houses.

When a Bill is introduced in one House and it is considered and passed by that House it is sent to

the other for consideration of that House.  The other House may:-

j) Pass the Bill in the same form; or

ii) Pass with  amendments; or

iii) Reject it; or

iv) Take no decision at all.

When other House passed the Bill in the same form; it is sent to the President for his assent.

Where the other House passes it with amendments, it is sent back to the House or its origin for

reconsideration.  If the sent back to the House or its origin for reconsideration.  If  the House of

its origin agrees with amendment, it is sent to the President for his assent.

Where house of origin does not agree with the amendments suggested by the other House’ and

where the Bill is rejected by the other House; and where the other House does not take action

i.e. does not pass or reject within six months fro the date of the receipt of the Bill then a special

procedure laid down in Article 108 (for joint sitting) is followed:

SPECIAL PROCEDURE FOR JOINT SITTING TO REMOVE DEADLOCK

Article 108 provides that where a Bills is passed by the one House an is sent to other House and

(i) the Bills is rejected by the other Hose or (ii) the House have finally disagreed as to the

amendments to be made or (iii) the Bill is not passed by the other House within six months from

the date of receipt of the Bill, the President may, unless the Bill as lapsed by reason of

dissolution of House of the People, notify to the Houses his intention to summon them at a joint

sitting.  Thereafter, no House will consider the Bill ad at any time the President may summon

both Houses together to consider the Bill.  The Bill shall not lapse even if after the notification

the House of the People has been dissolved.

The Houses will then meet as required and the Bill shall be considered.  At their joint sitting, the

Speaker of the House shall preside, if at the Joint sitting, Bill with such amendments as are

agreed to at such sitting, is passed by a majority of total members of both the Houses present

anti voting, is deemed to have been passed by both the Houses.

President’s Assent to Bills.

No Bill   can become law without  the assent of the president.  After the Bill is passed by both

the Houses, it must receive the assent of the President.  When a Bill after being passed by two

Houses of Parliament, is  presented to the President for his assent, he may declare:

i) That he gives his assent; or

ii) That he withholds his assent

If he gives his assent, the Bill becomes law.  If the withholds his assent, he may, as soon as

possible, return the Bill to the Houses with a message to consider the Bill. The House will then

consider the Bill and amendments recommended by the president.  When the Bill is again

passed by the Houses With or without amendments, the President cannot withhold his assent.

SUMMARY

In a democratic set up like India we have parliament and parliament works like a house having

its own functions and procedures.  Thee are 2 types of Bills (1) legislative bill and (2) money bills-

for passing of both the bills, procedure is quite different procedure is too wide for financial bills

including appropriation.

Money bill has been defined in Article 110 of the Constitution.   According to it a Bill shall be

deemed to be a Money Bill if it contains only provisions dealing with all or any of the following

matters namely:-

h) the imposition, abolition, remission, alteration for regulation of any tax;

i) the regulations of the borrowing of money or the giving  f any guarantee by the

Government of India, or the amendment of the law with respect to nay financial

obligations undertaken or to be undertaken by the Government of India.

j) the custody of the Consolidated Fund or the Contingency Fund of India, the payment of

moneys into or the withdrawal of moneys from any such fund;

K) the appropriation of money out of the Consolidated Fund of India.

l) the declaring of the any expenditure to be expenditure charges on the Consolidated

Fund of India, or the increasing of the amount of such expenditure;

m) the receipt of money  on account of the Consolidated Fund of India or the public

account of India or the custody, or issue of such money or the audit of the accounts of

the Union or of a State; or

n) any matter incidental to any of the matters specified in sub-clauses (a) to (f).

ORDINARY BILLS

An ordinary Bill can be introduced in either House of Parliament.  In this respect both

houses have equal powers.

If a Bill introduced in the House of the people is pending when the House of the People

of dissolved the Bill shall lapse.

A Bill which is passed by the House of the People and is pending in the Council of states,

or if a Bill is passed by the Council of States and the same is pending in the House of the People,

then, in any of these cases the Bill will lapse on dissolution of the House of the People except

where the President has already, notified his intention of summon of the Houses or meet in

joint sitting, under Article 108.

When a Bill is introduced in the Council of States and is pending there, it will not lapse

by reason of dissolution of the House of the People.  A Bill pending in either House  does not

laps merely by reason of the prorogation of the Houses.

When a Bill is introduced in one House and it is considered and passed by that House it

is sent to the other for consideration of that House.  The other House may;

v) Pass the Bill in the same form; or

vi) Pass with amendments; or

vii) Reject it; or

viii) Take no decision at all.

When other House passes the Bill in the same form; it is sent to the President for his

assent.  Where the other House passes it with amendments, it is sent back to the House or its

origin for reconsideration.  If the House of its origin agrees with amendment, it is not to the

president for his assent.

Where house of origin does not agree with the amendments suggested by the other

House; and where the Bill is rejected by the other House; and where the other House does not

take action i.e. does not pass or reject within six months from the date of the receipt of the Bill

then a special procedure laid down in Article 108 (For joint sitting) is followed:

SPECIAL PROCEDURE FOR JOINT SITTING TO REMOVE DEADLOCK

Article 108 provides that where a Bills s passed by one House and is sent to other House

and (i) the Bills is rejected by the other House or (ii) the House have finally disagreed as to the

amendments to be made or (iii) the Bill is to passed by the other House within six months from

the date of receipt f the Bill, the President may, unless the Bill has lapsed by reason of

dissolution of House of the People, notify to the Houses his intention to summon them at a joint

sitting.  Thereafter,  no House will consider the Bill and at any time the President may summon

both Houses together to consider the Bill.  The Bill shall not lapse even if after the notification

the House of the People has been dissolved.

The Houses will then meet as required and the Bill shall be considered.  At their joint

sitting, the Speaker of the House shall preside, If at the Joint sitting, Bill with such amendments

as are agreed to at such sitting, is passed by a majority of total members of both the Houses

present anti voting, is deemed to have been passed by both the Houses.

PRESIDENT’S ASSENT TO BILLS

No Bill become law without the assent of the President.  After  the Bill is passed by both

the Houses, it must receive the assent of the President.  When a Bill after being passed by two

Houses of parliament, is presented to the President for his assent, he may declare:

iii) That he gives his assent; or

iv) That he withholds his assent

If he gives his assent, the Bill becomes law.  If he withholds his assent, he may, as soon

as possible, return the Bill to the Hoses with a message to consider the Bill.  The house will then

consider the Bill and amendments recommended by the president.  When the Bill is again

passed by the Houses with or without amendments, the President cannot  withhold his assent.

…..

IV) Procedure in the House, Committees of the House, need

for reforms.

The Parliament of India  is the supreme bicameral legislative body of the federal

government of the Republic of India. It consists of the office of President of India, with an upper

house, the Council of States, known as the "Rajya Sabha" and a lower house, the House of

People, known as the "Lok Sabha".

The Committee system in India can be traced back to the

advent of the Montague-Chelmsford Reforms.

Parliamentary Committees play a vital role in the Parliamentary System. They are a

vibrant link between the Parliament, the Executive and the general public. The need for

Committees arises out of two factors, the first one being the need for vigilance on the part of

the Legislature over the actions of the Executive, while the second one is that the modern

Legislature these days is over-burdened with heavy volume of work with limited time at its

disposal. It thus becomes impossible that every matter should be thoroughly and systematically

scrutinised and considered on the floor of the House. If the work is to be done with reasonable

care, naturally some Parliamentary responsibility has to be entrusted to an agency in which the

whole House has confidence. Entrusting certain functions of the House to the Committees has,

therefore, become a normal practice. This has become all the more necessary as a Committee

provides the expertise on a matter which is referred to it.

PARLIAMENTARY COMMITTEES

Two kinds: i) Ad hoc Committees;and

ii)  the Standing Committees.

Ad hoc Committees are appointed for a specific purpose and they cease

to exist when they finish the task assigned to them and submit a report. The

principal Ad hoc Committees are the Select and Joint Committees on Bills.

Others like the Railway Convention Committee, the Committees on the Draft Five

Year Plans and the Hindi Equivalents Committee were appointed for specific

purposes.

The Standing Committees.

Each House of Parliament has Standing Committees like the Business

Advisory Committee, the Committee on Petitions, the Committee of Privileges

and the Rules Committee, etc.

Other Committees

Of special importance is yet another class of Committees which act as

Parliament’s ‘Watch Dogs’ over the executive. These are the Committees on

Subordinate Legislation, the Committee on Government Assurances, the

Committee on Estimates, the Committee on Public Accounts and the Committee

on Public Undertakings and Departmentally Related Standing Committees

(DRSCs).

 The Committee on Estimates, the Committee on Public Accounts, the

Committee on Public Undertakings and DRSCs play an important role in

exercising a check over governmental expenditure and Policy formulation.

COMPOSITION AND FUNCTIONS OF THE COMMITTEES

Select and Joint Committees

When a Bill comes up before a House for general discussion, it is open to

that House to refer it to a Select Committee of the House or a Joint Committee of

the two Houses. A motion has to be moved and adopted to this effect in the

House in which the Bill comes up for consideration. In case the motion adopted is

for reference of the Bill to a Joint Committee, the decision is conveyed to the

other House requesting them to nominate members of the other House to serve

on the Committee. The Select or Joint Committee considers the Bill clause by

clause just as the two Houses do. Amendments can be moved to various clauses

by members of the Committee. The Committee can also take evidence of

associations,  public bodies or experts who are interested in the Bill. After the Bill

has thus been considered the Committee submits its report to the House.

Members who do not agree with the majority report may append their minutes of

dissent to the report.

Committee on Estimates

This Committee consists of 30 members who are elected by the Lok

Sabha every year from amongst its members. A Minister is not eligible for

election to this Committee. The term of the Committee is one year. The main

function of the Committee on Estimates is to report what economies,

improvements in organisation, efficiency, or administrative reform,

consistent with the policy underlying the estimates may be effected and to

suggest alternative policies in order to bring about efficiency and economy

in administration. The Committee also examines matters of special interest

which may arise or come to light in the course of its work or which are

specifically referred to it by the House or the Speaker.

Committee on Public Undertakings

The Committee on Public Undertakings consists of 15 members elected

by the Lok Sabha and 7 members of Rajya Sabha are associated with it. A

Minister is not eligible for election to this Committee. The term of the Committee

is one year.

The functions of the Committee on Public Undertakings are—(a) to examine the

reports and accounts of Public Undertakings; (b) to examine the reports, if any, of

the Comptroller and Auditor General on the Public Undertakings; (c) to examine

in the context of the autonomy and efficiency of the Public Undertakings whether

the affairs of the Public Undertakings are being managed in accordance with

sound business principles and prudent commercial practices; and (d) such other

functions vested in the Committee on Public Accounts and the Committee on

Estimates in relation to the Public Undertakings as are not covered by clauses

(a), (b) and (c) above and as may be allotted to the Committee by the Speaker

from time to time. The Committee does not, however, examine matters of major

Government policy and matters of day-to-day administration of the Undertakings.

Committee on Public Accounts

This Committee consists of 15 members elected by the Lok Sabha and 7

members of the Rajya Sabha are associated with it. A Minister is not  eligible for

election to this Committee. The term of the Committee is one year.

The main duty of the Committee is to ascertain whether the money

granted by Parliament has been spent by Government "within the scope of the

Demand".

Business Advisory Committee (Lok Sabha)

The Business Advisory Committee of Lok Sabha consists of 15 members

including the Speaker who is the ex-officio Chairman. The members are

nominated by the Speaker. Almost all sections of the House are represented on

the Committee as per the respective strength of parties in the House.

The function of the Committee is to recommend the time that should

be allotted for the discussion of such Government legislative and other

business as the Speaker, in consultation with the Leader of the House, may

direct to be referred to the Committee. The decisions reached by the

Committee are always unanimous in character and representative of the

collective view of the House. The Committee generally meets at the beginning of

each Session and thereafter as and when necessary.

Committee on Private Members’ Bills and Resolutions (Lok Sabha)

This Committee consists of 15 members and the Deputy Speaker is its

Chairman when nominated as a member of  he Committee. The Committee is

nominated by the Speaker.

The functions of the Committee are to allot time to Private Members’ Bills

and Resolutions, to examine Private Members’ Bills seeking to amend the

Constitution before their introduction in Lok Sabha, to examine all Private

Members’ Bills after they are introduced and before they are taken up for

consideration in the House and to classify them according to their nature,

urgency and importance into two categories namely, category A and category B

and also to examine such Private Members’ Bills where the legislative

competence of the House is challenged.

The Committee, thus, performs the same function in relation to Private

Members’ Bills and Resolutions as the Business Advisory Committee does in

regard to Government Business. The Committee holds office for a term not

exceeding one year.

Rules Committee (Lok Sabha)

The Rules Committee consists of 15 members including the Speaker who

is the ex-officio Chairman of the Committee. The members are nominated by the

Speaker. The Committee considers matters of procedure and conduct of

business in the House and recommends any amendments or additions to

the Rules of Procedure and Conduct of Business in Lok Sabha that are

considered necessary.

Committee of Privileges (Lok Sabha)

This Committee consists of 15 members nominated by the Speaker. The

function is to examine every question involving breach of privilege of the House

or of the members of any Committee thereof referred to it by the House or by the

Speaker. It determines with reference to the facts of each case whether a breach

of privilege is involved and makes suitable recommendations in its report.

Committee on Papers Laid on the Table (Lok Sabha)

This Committee consists of 15 members nominated by the Speaker. Its

function is to examine all papers laid on the Table of the House by Ministers

(other than those which fall within the purview of the Committee on Subordinate

Legislation or any other Parliamentary Committee) and to report to the

House—(a) whether there has been compliance of the provisions of the

Constitution, Act, rule or regulation under which the paper has been laid, (b)

whether there has been any unreasonable delay in laying the paper, (c) if there

has been such delay, whether a  statement explaining the reasons for delay has

been laid on the Table of the House and whether those reasons are satisfactory,

(d) whether both the Hindi and English versions of the paper have been laid on

the Table, (e) whether a statement explaining the reasons for not laying the

Hindi version has been given and whether such reasons are satisfactory, (f) such

other functions in respect of the papers laid on the Table as may be assigned to

it by the Speaker from time to time.

Committee on Petitions (Lok Sabha)

The Committee consists of 15 members nominated by the Speaker. A

Minister is not nominated to this Committee. The function of the Committee is to

consider and report on petitions presented to the House. Besides, it also

considers representations from individuals and associations, etc. on subjects

which are not covered by the rules relating to petitions and gives directions for

their disposal.

Committee on Subordinate Legislation (Lok Sabha)

The Committee consists of 15 members nominated by the Speaker. A

Minister is not nominated to this Committee. The Committee scrutinizes  and

reports to the House whether the powers to make regulations, rules, sub-rules,

by-laws etc. conferred by the Constitution or  delegated by Parliament are being

properly exercised by the executive within the scope of such delegation.

Committee on Government Assurances (Lok Sabha)

This Committee consists of 15 members nominated by the Speaker. A

Minister is not nominated to this Committee. While replying to questions in the

House or during discussions on Bills, Resolutions, Motions etc., Ministers at

times give assurances or undertakings either to consider a matter or to take

action or to furnish the House further information later. The functions of this

Committee are to scrutinize the assurances, promises, undertakings etc. given

by Ministers from time to time and to report to Lok Sabha on the extent to which

such assurances etc. have been implemented and to see whether such

implementation has taken place within the minimum time necessary for the

purpose.

 Committee on Absence of Members from the Sittings of the House (Lok

Sabha)

The Committee consists of 15 members who hold office for one year. The

members are nominated by the Speaker. This Committee considers all

applications from members for leave of absence from the sittings of the House

and examines every case where a member has been absent for a period of 60

days or more, without permission, from the sittings of the House. In its report it

makes recommendations with respect to each case as to whether the absence

should be condoned or leave applied granted or whether the circumstances of

the case justify that the House should declare the seat of the member vacant.

Joint Committee on Offices of Profit

This Committee consists of 15 members. Ten members are elected from

Lok Sabha and five from Rajya Sabha. The Committee is constituted for the

duration of each Lok Sabha.

The main functions of the Committee are to examine the composition and

character of the Committees appointed by the Central and State  Governments

and to recommend what offices should disqualify and what offices should not

disqualify a person for being chosen as, and for being, a member of either House

of Parliament under article 102 of the Constitution.

Committee on the Welfare of Scheduled Castes and Scheduled Tribes

The Committee on the Welfare of Scheduled Castes and Scheduled

Tribes consists of 20 members elected by the Lok Sabha and 10  members of

Rajya Sabha are associated with it. The term of the Committee is one year. A

Minister is not eligible for election to this Committee. The main functions of the

Committee are to consider all matters concerning the welfare of the Scheduled

Castes and Scheduled Tribes, falling within the purview of the Union Government

and the Union Territories, to consider the reports submitted by the National

Commission for Scheduled Castes and Scheduled Tribes and to examine the

measures taken by the Union Government to secure due representation of the

Scheduled Castes and Scheduled Tribes in services and posts under its control.

Railway Convention Committee

The Railway Convention Committee is an ad-hoc Committee. It consists of

18 members. Out of these, 12 members are from Lok Sabha nominated by the

Speaker and 6 members are from Rajya Sabha nominated by the Chairman. By

convention the Minister of Finance and the Minister of Railways are members of

the Committee. Besides this, Ministers of State in the Ministry of Finance and

Ministry of Railways respectively are also its members.

The main function of the Committee is to review the Rate of Dividend

payable by the Railways undertaking to General Revenues as well as   other

ancillary matters in connection with the Railway Finance vis-a-vis the General

Finance and make recommendations thereon. The Railway Convention

Committee, 1949 was the first Committee after independence. This Committee

and subsequent Committees confined themselves to determining the rate of

dividend payable by Railways to General Revenues. Since 1971 the Railway

Convention Committees have been taking up subjects for examination and report

which have a bearing on the working of Railways.

Committee on Empowerment of Women

This Committee came into being on 29th April, 1997, as a consequence of

identical Resolutions adopted by both the Houses of Parliament on the occasion

of International Womens’ Day on 8th March, 1996. The Committee consists of 30

members, 20 nominated by the Speaker from amongst the members of Lok

Sabha and 10 nominated by the Chairman, Rajya Sabha from amongst the

members of the Rajya Sabha. The term of the Committee is of one year. The

Committee have been primarily mandated with the task of reviewing and

monitoring the measures  taken by the Union Government in the direction of

securing for women equality, status and dignity in all matters. The Committee

would also suggest necessary correctives for improving the status/condition of

women in respect of matters within the purview of the Union Government.

Besides, another important function of the Committee is to examine the

measures taken by the Union Government for comprehensive education and

adequate representation of women in Legislative bodies/services and other

fields. The Committee would also consider the report of the National Commission

for Women. The Committee may also examine such other matters as may seem

fit to them or are specifically referred to them by the Lok Sabha or the Speaker

and the Rajya Sabha or the Chairman, Rajya Sabha.

Departmentally Related Standing Committees

A full-fledged system of 17 Departmentally Related Standing Committees

came into being in April, 1993. These Committees cover under their  jurisdiction

all the Ministries/ Departments of the Government of India. These Committees

are as under :

Name of the Committee

1. Committee on Commerce

2. Committee on Home Affairs

3. Committee on Human Resource Development

4. Committee on Industry

5. Committee on Science & Technology,

Environment & Forests

6. Committee on Transport, Culture and Tourism

7. Committee on Agriculture

8. Committee on Information Technology

9. Committee on Defence

10. Committee on Energy

11. Committee on External Affairs

12. Committee on Finance

13. Committee on Food, Civil Supplies and

Public Distribution

14. Committee on Labour and Welfare

15. Committee on Petroleum & Chemicals

16. Committee on Railways

17. Committee on Urban and Rural Development

Out of the 17 Committees, 6 Committees (Sl. No. 1 to 6) are serviced by

the Rajya Sabha Secretariat and 11 Committees (Sl. No. 7 to 17) by the Lok

Sabha Secretariat.

Each of these Standing Committees consists of not more than 45

members—30 to be nominated by the Speaker from amongst the members of

Lok Sabha and 15 to be nominated by the Chairman, Rajya Sabha from amongst

the members of Rajya Sabha. A Minister is not eligible to  be nominated to these

Committees.

The term of members of these Committees is one year. With reference to the

Ministries/Departments under their purview, the functions of these committees

are:

(a) Consideration of Demands for Grants.

(b) Examination of Bills referred to by the Chairman, Rajya Sabha or the

Speaker, Lok Sabha as the case may be.

(c) Consideration of Annual Reports.

(d) Consideration of national basic long term policy documents presented to the

House and referred to the Committee by the Chairman, Rajya Sabha or the

Speaker, Lok Sabha, as the case may be. These Committees do not consider

matters of day-to-day administration of the concerned Ministries/Departments.

The newly constituted departmentally related Standing Committee System is a

path-breaking endeavour of the Parliamentary surveillance over administration.

With the emphasis of their functioning to concentrate on long-term plans, policies

and the philosophies guiding the working of the Executive, these Committees will

be in a very privileged position to provide necessary direction, guidance and

inputs for broad policy formulations and in achievement of the long-term national

perspective by the Executive.

NEED FOR REFORMS:

………

Delegated Legislation – Need for delegated legislation, classification of delegated legislation. Constitutionality of delegation legislation and control mechanism of administrative rule making in India.

II) Delegated Legislation – Need for delegated legislation, classification of delegated

legislation. Constitutionality of delegation legislation and control mechanism of administrative

rule making in India.

Delegated Legislation

Introduction:- Montesquieu, a French scholar, conceived the principle of separation of powers.

He felt that governmental power should be vested in three different organs, the legislature, the

executive and the judiciary.  Each organ should be independent of the other and no one organ

should perform functions that belong to the other.

The Indian Constitution does not strictly follow the principle of separation of powers.

The executive is a part of the legislature and is responsible to it.  In all democratic countries, an

important segment of administrative process is delegated legislation.  The great increase in

delegated legislation in modern times is due to several factors, which we will discuss later on.

Though law making is the primary function of the legislature, yet in no country does the

legislature monopolise the entire legislative power; it shares the same with the executive.  A

large bulk of legislation is made by the Administration under the powers conferred on it by the

legislature.  No statute is passed today by a legislature which does not confer some legislative

power on the Administration.  The Act conferring legislative power is known as the “Parent Act”;

the subordinate legislation goes under various appellations, such as, rules, regulations, schemes,

by-laws, statutory rules, orders etc.  The power of delegated legislation may be given to the

Central Government or the State Government depending upon whether the statute is a Central

or a state law. Sometimes Central laws delegate legislative powers to the state governments and

sometimes both the Central and the state governments derive rule-making power from the

same Act.

What is delegated legislation?  Delegated legislation has been defined by: Salmond as – ‘that

which proceeds from any authority other than the sovereign power and is therefore dependent

for its continued existence and validity on some superior or supreme authority’.

In simple terms it means-‘when the function of legislation is entrusted to organs other

than the legislature by the legislature itself the legislation made by such organs is called

delegated legislation’.

Here we may give some instances of delegation viz., the Northern India Canal and

Drainage Act, 1873, the Opium Act, 1878; the Advocate Act, 1961, the Export & Import Act,

Essential Commodities Act, 1955, the Indian Medical Council Act, the Right to Information Act,

2005 etc.

Need for delegation legislation or reasons for the growth of delegated legislation

The causes for the growth of delegated legislation are discussed below:

(a) Pressure upon Parliamentary Time:  The legislative activity of the State has increased

in response to the increase in its functions and responsibilities.  The legislature is

preoccupied with more important policy matters and rarely finds time to discuss

matters of detail.  It therefore formulates the legislative policy and gives power to the

executive to make subordinate legislation for the purpose of implementing the policy.

(b) Filling in Details of Legislation: The legislature has to make a variety of laws and the

details required to be provided in each of these laws require knowledge of matters of

technical or local or specialized nature.  The executive in consultation with the experts

or with its own experience of local conditions can better improve these.  There is no

point in the legislature spending its time over such details and therefore the power to

fill them in is often delegated to the executive or local authorities or expert bodies.

(c) The Need for Flexibility: A statutory provision cannot be amended except by an

amendment passed in accordance with the legislative procedure.  This process takes

time.  It may however be necessary to make changes in the application of a provision in

the light of experience.  It is therefore convenient if the matter is left to be provided

through subordinate legislation.  Delegated legislation requires less formal procedure

and therefore changes can be made in it more easily.

(d) Administration through Administrative Agencies:  Modern government is plurastic

and functions through a number of administrative agencies and independent

regulatory authorities, which have to regulate and monitor activities in public interest.

These agencies such as the Election Commission or the Reserve Bank of India or the

Board for Industrial and Financial Reconstruction(BIFR) or the Electricity Commission or

the Telecom Regulatory Authority of India(TRAI) etc. have to perform ongoing

regulation and control of various activities.  Each of these agencies is required to make

rules or regulations in pursuance of its regulatory function.

(e) Meeting Emergency Situations: In times of emergency, the government may have to

take quick action.  All its future actions cannot be anticipated in advance and hence

provisions cannot be made by the legislature to meet all unforeseeable contingencies.

It is safer to empower the executive to lay down rules in accordance with which it

would use its emergency power.

All these reasons for the growth of delegated legislation were summarized by

the Supreme Court in St. John’s Teacher Training Institute v. Regional Director, NCTE

(2003)3 SCC 321.

Classification of delegation legislation:

Delegated legislation may be classified as follows:

(a) Power to bring an Act into Operation:

Usually an Act provides that it shall come into force on such date as the Central

Government or the State government, as the case may be, may, by notification in the

Official Gazette appoint.  For example section 1(3) of The Industries( Development and

Regulation) Act, 1951.  Such power is given because the government has better knowledge

of the practical exigencies of bringing the law into force.  Ideally, since the legislature has

passed the law, the executive is bound to bring it into force.

In A.K. Roy v. Union of India (1982) 1 SCC 271, the Supreme Court held that the

Constitution (44th) Amendment Act, 1978, which conferred power on the executive to bring

the provisions of that Act into force did not suffer from excessive delegation of legislative

power.  The Court rejected the contention that the power delegated was a constituent

power.   It was held that there were practical difficulties in the enforcement of the laws

contemporaneously with their enactment as also in their uniform extension at the time

when the law was enacted.  Therefore, the power is given to the executive to decide the

date on which the Act is to come into force.

(b) Conditional Legislation:

The legislature makes the law but leaves it to the executive to bring the Act into

operation when conditions demanding such operation are obtained. The executive has to decide

whether the necessary conditions required for the law to be in operation  have been satisfied or

not and if they have been so, it should issue a notification bringing the law into operation.  This

is called conditional legislation.  Conditional legislation is of the following types:

(i) Power to bring an Act into operation;

(ii) Power to extend the application of any Act in force in one territory to another

territory; and to restrict and make modifications in the original legislation to suit the

exigencies of the territory under its control;

(iii) Power to extend the life of an Act; and

(iv) Power to extend or to exempt from the operation of an Act certain categories of

subjects or territories.

(c) Power to Fill in Details

This is the most common type of delegated legislation.  The legislature passes the

skeleton and empowers the executive to provide the flesh and bones through

subordinate legislation.  The enabling clause usually says that the Central or the state

government may make rules ‘to carry out the purposes of the Act’.

(d) Powers to Remove Difficulties

Many Acts contain provisions for conferring such extensive power of delegated

legislation on the executive.  The purpose of such provision is to enable the executive to

remove difficulties in the implementation of the Act and to effectuate its purpose and

policy.  For example, Section 26 of the Legal Services Authorities Act, 1987 and section

29 of the Insurance(Regulatory and Development) Authority Act, 1999.

Constitutionality of delegated legislation – Judicial Review of Delegated Legislation

Judicial review upholds the rule of law.  The courts have to see that the delegated legislation is

exercised within the ambit of the power delegated and according to the Constitution.  Judicial

review tends to be more effective because the Courts do not merely recommend but can strike

down a rule if it is ultra vires the enabling Act or the Constitution.  Since the word ‘law’ as

defined in Article 13(3) (a) includes order, by law, rule, regulation and notification, the entire

subordinate legislation, like plenary legislation is subject to the command of art 13(2) which says

that the state shall make no law which takes away or abridges the rights conferred by Part III of

the Constitution.  Delegation legislation may therefore be assailed on the following grounds:

(i) that it is ultra vires the enabling Act; and

(ii) that it is ultra vires the Constitution.

The first ground alleges that the rules so impugned are not within the ambit of the power

delegated. This ground may contain the charge of substantive lack of power or non-conformity

with the procedure prescribed under the enabling Act.  The second ground involves lack of

power as well as violation of any specific constitutional provision.

Control Mechanism of administrative rule making in India

Control Mechanism of delegated Legislation  (three types)

1. Parliamentary/Legislative Control.

2. Procedural/Administrative/Executive Control.

3. Judicial Control.

1. PARLIAMENTARY/LEGISLATIVE CONTROL.

In a parliamentary democracy it is the function of the legislature to legislate, but if it

seeks to delegate this power to the executive in some circumstances, it is not only the right of

legislature, but also its obligation as principal to see how its agent (i.e. the Executives) carries

out the agency entrusted to it.  Hence the parliamentary control over delegated legislation

should be a living continuity as a constitutional necessity.  The fact is that due to the broad

delegation of legislative powers and the generalized standard of control also being broad, the

judicial control has shrunk, raising the desirability and necessity of parliamentary control.

In India, ‘parliamentary control’ is implicit as a normal constitutional function because

the executive is responsible to the Parliament Legislative Control is a two stage control.

1. Initial stage (At the stage of delegation of power)

2. When legislature exercise control in two parts (direct and indirect control)

Initial stage: In case where there is a bill which provides of delegation of powers

such a bill should be accompanies by a legislation stating how much power has

been delegated.  The basic emphasis in the initial stage is that whether the

power has been validity delegated or not.

Second stage: (A) Direct Control, and (B) Indirect Control.

(A) Direct Control: In this the important aspect is the laying requirement which means  that the

rules have to be placed before the Parliament.  Laying comes into play after the rules are made

and it assumes three major forms depending on the degree of control which the legislative may

like to exercise.

(a) Simple laying (i.e. laying with no further direction): In this, the rules inform house come

into effect as soon as they are laid.  It is simply to vides that the rules shall be laid before

parliament as soon as they are made or published.  It is directory in nature.

(B) Negative laying or subject to annulment or modification: The rules come into force as

soon as they are placed before Parliament but cease to have effect if disapproved by the

Parliament in specified time i.e.  within 40 days.   It is directory in nature unless and until

annulled by the Parliament.

(c) Affirmative Laying: The technique may take two shapes:

(i) That the rules have no effect unless approved by a resolution of both houses of

parliament.

(ii) That the rules shall cease to have effect unless approved by affirmative resolution.  This

technique necessitates a debate in every case thus one object of delegation (viz. saving the time

of Parliament) is to some extent defeated.  This requirement is mandatory in nature because

rules made in draft form shall be placed before both the houses of parliament for approval and

then they will come into force after they have been approved.  If this procedure is not followed

it affects the legal validity of rule.

Therefore this procedure is sparingly used and reserved to cases where the order almost

amounts to an Act by effecting changes which approximate to true legislation, and cases where

the spending of public money is affected or where the order replaces local Acts  or provisional

orders.  Amongst all three methods simple laying is hardly used and negative resolution is the

commonest form of laying.

Legal consequences of non compliance with the laying provision

In India, the position is not categorical, the consequence of non compliance with the laying

provisions depend on whether the provisions in the enabling Act are mandatory or directory.

Test for mandatory.

1. Where the laying requirement is a conditions precedent to bring the rules into force

then in such a case the laying requirement is mandatory in nature.

2. Where there is a provision that the rules be in draft form then such form states that

laying is mandatory in nature.

Test for Directory

Where laying requirement is subsequent to bring the rules into operation then the laying

requirement will directory in nature.

This issue of mandatory or directory was debated at length in Atlas Cycle Ind. Ltd. V. State of

Haryana (AIR 1979 SC 1149) the Section 3(6) of Essential Commodities Act, 1955 provided that

rules made by the central government shall be laid before the parliament as soon as they are

made.  Accordingly the central government made a rule, making Iron and Steel an essential

commodities.  On spot checking the development officer found that the company had

purchased instituted against the company.  The company contended that this suffered from

procedural ultravires as it has not been laid before the Parliament.  The court held that the

Section required simple laying hence it is directory in nature and not mandatory in nature.  In

case of simple laying the rules come into force the moment they are laid before the legislature

and they do not require any action on the part of the legislature to come into force.  The

Supreme Court observed two consideration for regarding a provision as directory-

1. absence of any provision for the contingency of a particular provision not being

complied with or followed.

2. serious general inconvenience and prejudice that would result to the general public

if the act of the Government or an instrumentality is declared invalid for non-

compliance with the particular provision.

(B)Indirect Control: This control is exercised by Parliament through its committees.  Such a

committee known as the committee on subordinate legislation  of Lok Sabha set up in 1953 and

consist of 15 members appointed by Lok Sabha Speaker for a period of one year. Another

committee on subordinate legislation known as Rajay Sabha committee constitutive in 1964

consist of 15 member nominated by chairman of Rajaya Sabha & it holds office till new

committee is formed.  The committee is assigned the task to scrutinize and report to the House,

whether the power to make regulations, bye laws, etc conferred by the constitution or

delegated by the Parliament are being properly exercised within such delegation Ministers can

become members of this committee.  The main function of the committee shall be to examine:

1. Whether the rules are in accordance with the general object of Act.

2. Whether the rules contain any matter which could more properly be dealt with  in the

Act.

3. whether it conations imposition of tax.

4. Whether it directly or indirectly bars the jurisdiction of the court.

5. Whether there has been unjustified delays in its publication or laying.

6. whether it is retrospective in nature.

7. Whether it involves expenditure from the consolidated fund.

8. Whether it is safeguard of principle of natural justice.

The government attaches great weight to the committee’s report and tires is implement its

recommendations.  The biggest drawback is that is cannot strike know delegated legislation on

the basis of being excessive in nature, it is just recommendatory in nature not corrective.

2. PROCEDURAL/ADMINISTRATIVE/EXECUTIVE CONTROL.

Executive legislating under delegated legislation is ordinarily free from rigid procedural

requirements unless the legislature makes it mandatory for the executive to abide by a certain

procedure.  This is because rigid procedural requirements may turn out to too time consuming

and cumbersome and they may defeat the very purpose of delegated legislation.    However,

communication in one form or other to the general public still remains indispensable for the law

to be legally valid and binding.  Hence procedural control means certain procedures which are

laid down in the parent Act which have to be followed by the authorities while making the rules.

Delegated legislation may be challenged on the ground that it has been in accordance with the

procedure prescribed by the enabling Act.  However, rules become invalid on the ground of non-

compliance with prescribed procedure only if such procedure is mandatory.  Non compliance

with the directory provisions does not render them invalid.  It becomes a case of procedural

alternatives.   One has to see whether the procedure is mandatory or directory.  Procedural

control  mechanism operates in three components:

(i) Pre-publication and consultation with an expert body  or approval of an

authority.

(ii) Publication of delegated legislation.

(iii) Laying of the rules before the legislature.

This procedural control mechanism may be either mandatory or directory. For the purpose of

mandatory or directory control mechanisms few important parameters should be taken into

account viz (a) Scheme of Act (b) Intention of legislature i.e. whether treated mandatory or

directory (c) language in which the provision is drafted (d) Serious inconvenience being caused

to the public at large, these were four parameters laid down in case.  Raza Buland Sugar Co. v.

Rampur Municipal Council (AIR 1965 Sc 895).

(1) Consultation and Pre-publication.”

The “modus-operandi” is  regarded as a valuable safeguard against the misuse of

legislative power by the executive authorities.  The effect of the term previous

publication according to S.23 of General Clause Act,  1897 is that:

(i) The rules should be published in draft form in Gazette.

(ii) Objections and suggestions be invited by a specific date mentioned there in, and

(iii) Those objection and suggestions be considered by rule-making authority.

In India, a provision of prior consultation, if contained in the enabling Act is considered

sometimes as mandatory and sometime as directory.  In issue like environment, this

requirement is considered as mandatory in nature.

The provisions for prior consultation may take various forms:

(a) Official consultation: The central govt.  is required to make rules U/s 52 of the Banking

Companies Act, after consulting the Reserve Bank  of India.

(b) Consolation with statutory bodies: Incharge of a particular subject.

(c) Consultation with Administrative boards.

(d) Consultation with affected persons:  Municipalities, before tax imposition have to

publish draft rules in a Hindi daily and consult the inhabitants of the area.  Under the

industries development and regulations act, representations from the industry and

public are invited.

(e) Draft Rules and Affected interest:

Under Indian Mines Act, Sec.61 empowers owner of a time to frame or to draft rules

themselves for safety etc. n mines and submit them to inspector of mines.  Such rule

become operative on being approved by the government.

In Ibrahim vs. Regional Transport Authority (Air 1953 SC 79), consultation with the

Municipality was required to be made the Transport Authority before certain routes for

buses were fixed.  The S.C. held it to be merely directory.

(2) PUBLICATION (POST NATAL PUBLICITY)’

It is a fundamental principal of law “ignorantia jris non excusat” (ignorance of law is no excuse)

but there is also another equally established principle of law that the public must have the

access to the law and they should be given an opportunity to know the law.  All laws ought

either to be known or at least laid open offend against them under pretence of ignorance.  It is

essential that adequate means are adopted to publicize the rules so that people are not caught

on the wrong foot, in ignorance of the rules applicable to them in a given situation.”

Thus, in Harla v. State of Rajasthan (Air 1951 SC 467) the council by resolution enacted the

Jaipur opium Act which made rule that if a person carried opinion beyond  a certain limit then it

was an offence committed and penalty had to be imposed on the accused & act was never

published.  One Harla was prosecuted for the contravention of this law because he was in

possession of opium in more quantity than permitted.  He contended that it was a case of

procedural ultravires.  Holding that the law was not enforceable the Supreme Court observed.

“promulgation or publication of some sort is essential other wise it would be against

principles of natural justice to punish the subject under a law of which they had no

knowledge and of which they could not even with the exercise f reasonable diligence be

said to have acquired any knowledge.”

In Narendra Kumar v.s U.O.I. (AIR 1960 Sc 430) Sec.3  of Essential commodities Act, 1955

required all the rules to be made under the Act to be notified in official gazette.  The principles

applied by licensing authority for issuing permits for the acquisition of non-ferrous metals were

not notified.   The S.C. held the rules ineffective because the mode of publication i.e. in Official

Gazette was held to be mandatory.

NECESSITY OF PUBLICATION

Whether the requirement as to be mode of publication of rules is mandatory or directory? Will

the rules be valid if to published in official gazette but circulated in any other mode?

Form the point of view of the individual it is infair to publish the rule is obscure publication.

First publication in required mode creates certainty in the mind of the individual that rules have

been duly made.  Secondly it enables him to have say access ability to the rules.

In Raza Buland Sugar Co. v. Rampur Municipality (AIR 1965 SC 896) for the S.C. Wanchoo, J.

observed. ‘The  question whether a particular provision of statute which  on the face of a

appears mandatory or is merely directory cannot be laying down any general rule and depends

upon the facts of each case and for that purpose the object of the statute in making the

provision is the determining factor.  The language of the provision have all to be taken into

account in arriving at the conclusion whether particular provision is mandatory or directory.”  

Further, the medium of publication has been held to be a mandatory requirement.

3. JUDICIAL CONTROL

Judicial review upholds the rule of law.  The courts have to see that the delegated legislation is

exercised within the ambit of the power delegated and according to the Constitution.  Judicial

review tends to be more effective because the Courts do not merely recommend but can strike

down a rule if it is ultra vires the enabling Act or the Constitution.  Since the word ‘law’ as

defined in Article 13(3) (a) includes order, by law, rule, regulation and notification, the entire

subordinate legislation, like plenary legislation is subject to the command of art 13(2) which says

that the state shall make no law which takes away or abridges the rights conferred by Part III of

the Constitution.  Delegation legislation may therefore be assailed on the following grounds:

(iii) that it is ultra vires the enabling Act; and

(iv) that it is ultra vires the Constitution.

The first ground alleges that the rules so impugned are not within the ambit of the power

delegated. This ground may contain the charge of substantive lack of power or non-conformity

with the procedure prescribed under the enabling Act.  The second ground involves lack of

power as well as violation of any specific constitutional provision.

….

What are the factors responsible for disobedience of law? Give your suggestions in this regard.

PAPER – I

UNIT – II

I) Q. What are the factors responsible for disobedience of law?  Give your suggestions in

this regard.

In every society, law is an instrument to administer the chaotic atmosphere.  Some

legislation are based upon customary approach and some are upon analytical approach.  In spite

of the fact that legislations are being passed by the parliament, there is disobedience of law in

some concerned quarters.  The every first problem is created by custom in matrimonial disputes

and in succession.  Some tribes denied to obey the codified law by pleading that they are bound

by customs.

FACTORS RESPONSIBLE FOR DISOBEDIENCE OF LAW

1. Laws, which are inconsistent to customs:-  No doubt, all legislations are for

betterment of society and is based on customs.  In fact, sometimes during the

enactment of legislations some customs are ignored in totality later on these

customs create problems and lead the society towards disobedience of particular

law.

2. Customs vis-à-vis personal Law:-  It is a settled position that –

a) When custom is alleged and proved, then the custom is the governing rule.

b) When custom is alleged, is not proved, or when no custom is alleged, the personal law is

the governing rule.

In Ujagar Singh vs. Jeo, (1960)SCJ 16, the Supreme Court observed that when a party

who relies on custom fails to prove it, there the rule of decision must be the personal law of

parties. This is an established preposition of law that when no custom on either side is

established, the personal law of the parties applies.

3. Custom: The first rule of decision:-  In India, their personal laws governs each

community. Hindu Law has all along recognized that a valid custom overrides the

sacred law.

4. Age: - Under customary Hindu and Muslim laws, marriage of minors has been valid.

The Child Marriage Restraint(Amendment) Act, prescribes marriage age of 21 years

for male and 18 years for female.  In some tribes there is disobedience of this law,

because customs are still valid despite having legal provisions.

5. Ceremonies of marriage: -  Marriage under customary law may be solemnized in

three modes – whichever mode is  recognized by the custom of the tribe or case.

Firstly, the religious sacramental ceremonies are required to be performed on the

higher classes of Hindus when they perform a regular or normal marriage.

Secondly, some formal and secular ceremonies are required to be performed on

some tribes for the performance of a normal and regular marriage –included the

Muslim tribes.  Thirdly, no ceremonies are required to be performed in some tribes,

mere intention to live together as husband and wife followed by cohabitation is

enough.  Such marriages are usual in the lower cases.  This is particularly true when

an informal marriage like the ‘karewa’or the ‘Chadar-andazi’ is entered into.  In such

marriages even among the high case Hindus, no formal ceremonies, religious or

otherwise are required.

6. Customs prevails over Law:- The child marriage is still prevailing among Hindus and

Muslims despite the enactment of the Child Marriage(Restraint) Act.  Similarly,

despite the enactment of Dowry Prohibition Act, menace of dowry is still prevailing.

Reasons for this is the customs of the Hindus and Muslims.  Execution of laws are

impossible where customs are in practice.

7. Marriages:- Strictly, speaking there are no forms of marriage under customary law

as we talk of them under Hindu law.  Different tribes follows formalities for the

performance of their marriages.  There are two forms of marriage in which no

formalities are required, i.e., ‘Karewa marriage’ and ‘ Chader-andazi marriage’.

Karewa marriage’ is essentially a marriage by mutual consent  without the performance

of any ceremonies whatsoever.  Thus, among Jat tribes when a man takes the wife of his

deceased brother into his house without any marriage ceremony, and she bears him

children, such children are accepted as legitimate and all respects.  In Kaur v. Sawan Singh, a

marriage of a Jat with a Kori (low case tribe) woman in Karewa form was held valid.  Among

the low caste Hindus the Karewa marriage is very common.

 ‘Chader-andazi marriage’ in this form the ceremonial has been reduced to the very

minimum and is one of the recognized forms of marriage.  A ‘karewa’ among the jats usually

takes place in the ‘chader-andazi’ form which means throwing of sheet over the couple

about to be married.

8. Dowry Prohibition Act, 1961: Customs plays a vital role and dowry is termed as

Daan to Kanya. Provisions of Dowry Prohibition Act, 1961 are not applicable and

even not accepted particularly in rural areas when both are agreed on giving and

taking dowry.  It is not feasible to execute law because by execution of legal

provisions harmony between husband and wife may be disturbed. So in case of

dowry still customs are prevailing and execution is not possible without the

cooperation of people.

9. Public opinion disregards: POTA 2002:-   POTA was enacted with the object to fight

against terrorism.  There is repulsion among society and some quarters are not

convinced with the POTA legislation because plenary powers are given to authorities

so that they can violate fundamental rights easily.  No doubt when legislation is

passed by parliament it is supreme but it is equally important to note that whether

public opinion is for legislation or not?  In circumstances, when there is lack of

public opinion executive fails some time to execute law properly.  So here it may be

said that for legislation public opinion is necessary.

10. Armed Forces Act Manipur: -   This Act was passed with the object to administer the

Manipur State properly because Manipur is disturbed State due to terrorism.  90%

population opposed it.  Despite having opposition, Central Govt. has rigid approach.

Due to this dispute there was chaos in the State.

11. Haryana Excise Act: - When Bansi Lal Government came to power in Haryana they

imposed Excise Act for prohibition on selling and consumption of liquor.  Maximum

public consumes liquor in Haryana and there  was huge loss to the State exchequer.

When public is accustomed to liquor, it is not feasible to implement the law on

prohibition of selling and consumption of liquor.

12. Procedural law restricts execution of law:- Since ancient times concept of privacy is

important.  In modern times, personal liberty embraced privacy in every aspect of

life.  In an important incident CISF security male staff stripped an American woman

at IGI Airport.  She alleged violation of privacy of a woman.  But at the same time, it

is equally important to maintain security of State and seizure is primary duty of

security staff.   Procedural law was enacted with the object that concept like privacy

and personal liberty should not be violated at any cost but these concepts are

different to statutory law and sometimes instead of harmony there is repugnance

between both.

13. Religion and Law:- The Supreme Court has observed that there should be a Uniform

Civil Code to govern different religions.  In Shah Bano case, the Supreme Court

interpreted Section 125 Cr.PC in favour of Muslim woman but due to strict

intervention of Muslim leaders the judgment was nullified by Muslim Women

Protection Act, 1986.  This shows that religion is supreme not the law.

14. Article 21 prevails over legislations:- Constitution of India is the grundnorm, the

legislation which is against the grundnorm is not constitutional.  In Maneka Gandhi

vs. UOI, the Supreme Court observed that law should be fair, just and justified.

After this decision, the interpretation of ‘process established by law’ had been

interpreted on the footing of due process of law of American constitution.  The

authorities cannot implement unfair and arbitrary laws.

15. Lack of publicity:-  When new legislation comes into force there is lack of publicity

of that particular law which creates problems.  The reason of ignorance of law leads

to disobedience of law.

Conclusion:- Framing of legislation is not difficult but the execution of law is difficult. For

execution of laws the major problem is of disobedience of law by the concerned people.  In

country like India, customs are prevalent in comparison to law particularly Family Law.  So,

somewhere customs are factors for disobedience of law and somewhere imposed

legislations by Government are responsible for disobedience of law.