NATIONAL POLICY FOR THE EMPOWERMENT OF WOMEN

(2001)

Introduction

The principle of gender equality is enshrined in the Indian Constitution in

its Preamble, Fundamental Rights, Fundamental Duties and Directive
Principles.The Constitution not only grants equality to women, but also
empowers the State to adopt measures of positive discrimination in favour
of women.

Within the framework of a democratic polity, our laws, development

policies, Plans and programmes have aimed at women’s advancement in
different spheres. From the Fifth Five Year Plan (1974-78) onwards has
been a marked shift in the approach to women’s issues from welfare to
development. In recent years, the empowerment of women has been
recognized as the central issue in determining the status of women. The
National Commission for Women was set up by an Act of Parliament in
1990 to safeguard the rights and legal entitlements of women. The 73rd
and 74th Amendments (1993) to the Constitution of India have provided
for reservation of seats in the local bodies of Panchayats and Municipalities
for women, laying a strong foundation for their participation in decision
making at the local levels.

1.3 India has also ratified various international conventions and human
rights instruments committing to secure equal rights of women. Key
among them is the ratification of the Convention on Elimination of All
Forms of Discrimination Against Women (CEDAW) in 1993.

1.4 The Mexico Plan of Action (1975), the Nairobi Forward Looking
Strategies (1985), the Beijing Declaration as well as the Platform for Action
(1995) and the Outcome Document adopted by the UNGA Session on
Gender Equality and Development & Peace for the 21st century, titled
"Further actions and initiatives to implement the Beijing Declaration and
the Platform for Action"have been unreservedly endorsed by India for
appropriate follow up.

1.5 The Policy also takes note of the commitments of the Ninth Five Year
Plan and the other Sectoral Policies relating to empowerment of Women.

1.6 The women’s movement and a wide-spread network of non-

Government Organisations which have strong grass-roots presence and
deep insight into women’s concerns have contributed in inspiring
initiatives for the empowerment of women.

1.7 However, there still exists a wide gap between the goals enunciated in
the Constitution, legislation, policies, plans, programmes, and related
mechanisms on the one hand and the situational reality of the status of
women in India, on the other. This has been analyzed extensively in the
Report of the Committee on the Status of Women in India, "Towards
Equality", 1974 and highlighted in the National Perspective Plan for
Women, 1988-2000, the Shramshakti Report, 1988 and the Platform for
Action, Five Years After- An assessment"

1.8 Gender disparity manifests itself in various forms, the most obvious
being the trend of continuously declining female ratio in the population in
the last few decades. Social stereotyping and violence at the domestic and
societal levels are some of the other manifestations. Discrimination against
girl children, adolescent girls and women persists in parts of the country.

1.9 The underlying causes of gender inequality are related to social and
economic structure, which is based on informal and formal norms, and
practices.

1.10 Consequently, the access of women particularly those belonging to

weaker sections including Scheduled Castes/Scheduled Tribes/ Other
backward Classes and minorities, majority of whom are in the rural areas
and in the informal, unorganized sector – to education, health and
productive resources, among others, is inadequate. Therefore, they remain
largely marginalized, poor and socially excluded.

Goal and Objectives

1.11 The goal of this Policy is to bring about the advancement,

development and empowerment of women. The Policy will be widely
disseminated so as to encourage active participation of all stakeholders for
achieving its goals. Specifically, the objectives of this Policy include

(i) Creating an environment through positive economic and social policies

for full development of women to enable them to realize their full
potential

(ii) The de-jure and de-facto enjoyment of all human rights and
fundamental freedom by women on equal basis with men in all spheres –
political, economic, social, cultural and civil

(iii) Equal access to participation and decision making of women in social,

political and economic life of the nation

(iv) Equal access to women to health care, quality education at all levels,
career and vocational guidance, employment, equal remuneration,
occupational health and safety, social security and public office etc.

(v) Strengthening legal systems aimed at elimination of all forms of

discrimination against women

(vi) Changing societal attitudes and community practices by active

participation and involvement of both men and women.

(vii) Mainstreaming a gender perspective in the development process.

(viii) Elimination of discrimination and all forms of violence against women

and the girl child; and

(ix) Building and strengthening partnerships with civil society, particularly

women’s organizations.

Policy Prescriptions

Judicial Legal Systems

Legal-judicial system will be made more responsive and gender sensitive to

women’s needs, especially in cases of domestic violence and personal
assault. New laws will be enacted and existing laws reviewed to ensure
that justice is quick and the punishment meted out to the culprits is
commensurate with the severity of the offence.

2.2 At the initiative of and with the full participation of all stakeholders
including community and religious leaders, the Policy would aim to
encourage changes in personal laws such as those related to marriage,
divorce, maintenance and guardianship so as to eliminate discrimination
against women.

2.3 The evolution of property rights in a patriarchal system has contributed

to the subordinate status of women. The Policy would aim to encourage
changes in laws relating to ownership of property and inheritance by
evolving consensus in order to make them gender just.

Decision Making

3.1 Women’s equality in power sharing and active participation in decision

making, including decision making in political process at all levels will be
ensured for the achievement of the goals of empowerment. All measures
will be taken to guarantee women equal access to and full participationin
decision making bodies at every level, including the legislative, executive,
judicial, corporate, statutory bodies, as also the advisory Commissions,
Committees, Boards, Trusts etc. Affirmative action such as
reservations/quotas, including in higher legislative bodies, will be
considered whenever necessary on a time bound basis. Women–friendly
personnel policies will also be drawn up to encourage women to
participate effectively in the developmental process.
Mainstreaming a Gender Perspective in the Development Process

4.1 Policies, programmes and systems will be established to ensure

mainstreaming of women’s perspectives in all developmental processes, as
catalysts, participants and recipients. Wherever there are gaps in policies
and programmes, women specific interventions would be undertaken to
bridge these. Coordinating and monitoring mechanisms will also be
devised to assess from time to time the progress of such mainstreaming
mechanisms. Women’s issues and concerns as a result will specially be
addressed and reflected in all concerned laws, sectoral policies, plans and
programmes of action.

Economic Empowerment of women

Poverty Eradication

5.1 Since women comprise the majority of the population below the
poverty line and are very often in situations of extreme poverty, given the
harsh realities of intra-household and social discrimination, macro
economic policies and poverty eradication programmes will specifically
address the needs and problems of such women. There will be improved
implementation of programmes which are already women oriented with
special targets for women. Steps will be taken for mobilization of poor
women and convergence of services, by offering them a range of economic
and social options, along with necessary support measures to enhance
their capabilities

Micro Credit

5.2 In order to enhance women’s access to credit for consumption and

production, the establishment of new, and strengthening of existing micro-
credit mechanisms and micro-finance institution will be undertaken so that
the outreach of credit is enhanced. Other supportive measures would be
taken to ensure adequate flow of credit through extant financial
institutions and banks, so that all women below poverty line have easy
access to credit.

Women and Economy

5.3 Women’s perspectives will be included in designing and implementing

macro-economic and social policies by institutionalizing their participation
in such processes. Their contribution to socio-economic development as
producers and workers will be recognized in the formal and informal
sectors (including home based workers) and appropriate policies relating
to employment and to her working conditions will be drawn up. Such
measures could include:

Reinterpretation and redefinition of conventional concepts of work

wherever necessary e.g. in the Census records, to reflect women’s
contribution as producers and workers.

Preparation of satellite and national accounts.

Development of appropriate methodologies for undertaking (i) and (ii)

above.

Globalization

Globalization has presented new challenges for the realization of the goal
of women’s equality, the gender impact of which has not been
systematically evaluated fully. However, from the micro-level studies that
were commissioned by the Department of Women & Child Development,
it is evident that there is a need for re-framing policies for access to
employment and quality of employment. Benefits of the growing global
economy have been unevenly distributed leading to wider economic
disparities, the feminization of poverty, increased gender inequality
through often deteriorating working conditions and unsafe working
environment especially in the informal economy and rural areas. Strategies
will be designed to enhance the capacity of women and empower them to
meet the negative social and economic impacts, which may flow from the
globalization process.

Women and Agriculture

5.5 In view of the critical role of women in the agriculture and allied
sectors, as producers, concentrated efforts will be made to ensure that
benefits of training, extension and various programmes will reach them in
proportion to their numbers. The programmes for training women in soil
conservation, social forestry, dairy development and other occupations
allied to agriculture like horticulture, livestock including small animal
husbandry, poultry, fisheries etc. will be expanded to benefit women
workers in the agriculture sector.

Women and Industry

5.6 The important role played by women in electronics, information

technology and food processing and agro industry and textiles has been
crucial to the development of these sectors. They would be given
comprehensive support in terms of labour legislation, social security and
other support services to participate in various industrial sectors.

5.7 Women at present cannot work in night shift in factories even if they
wish to. Suitable measures will be taken to enable women to work on the
night shift in factories. This will be accompanied with support services for
security, transportation etc.

Support Services

5.8 The provision of support services for women, like child care facilities,
including crèches at work places and educational institutions, homes for
the aged and the disabled will be expanded and improved to create an
enabling environment and to ensure their full cooperation in social,
political and economic life. Women-friendly personnel policies will also be
drawn up to encourage women to participate effectively in the
developmental process.

Social Empowerment of Women

Education

6.1 Equal access to education for women and girls will be ensured. Special
measures will be taken to eliminate discrimination, universalize education,
eradicate illiteracy, create a gender-sensitive educational system, increase
enrolment and retention rates of girls and improve the quality of education
to facilitate life-long learning as well as development of
occupation/vocation/technical skills by women.Reducing the gender gap in
secondary and higher education would be a focus area. Sectoral time
targets in existing policies will be achieved, with a special focus on girls and
women, particularly those belonging to weaker sections including the
Scheduled Castes/Scheduled Tribes/Other Backward Classes/Minorities.
Gender sensitive curricula would be developed at all levels of educational
system in order to address sex stereotyping as one of the causes of gender
discrimination.

Health

6.2 A holistic approach to women’s health which includes both nutrition

and health services will be adopted and special attention will be given to
the needs of women and the girl at all stages of the life cycle. The
reduction of infant mortality and maternal mortality, which are sensitive
indicators of human development, is a priority concern.This policy
reiterates the national demographic goals for Infant Mortality Rate (IMR),
Maternal Mortality Rate (MMR) set out in the National Population Policy
2000.Women should have access to comprehensive, affordable and quality
health care. Measures will be adopted that take into account the
reproductive rights of women to enable them to exercise informed
choices, their vulnerability to sexual and health problems together with
endemic, infectious and communicable diseases such as malaria, TB, and
water borne diseases as well as hypertension and cardio-pulmonary
diseases. The social, developmental and health consequences of HIV/AIDS
and other sexually transmitted diseases will be tackled from a gender
perspective.

6.3 To effectively meet problems of infant and maternal mortality, and

early marriage the availability of good and accurate data at micro level on
deaths, birth and marriages is required. Strict implementation of
registration of births and deaths would be ensured and registration of
marriages would be made compulsory.

6.4 In accordance with the commitment of the National Population Policy

(2000) to population stabilization, this Policy recognizes the critical need of
men and women to have access to safe, effective and affordable methods
of family planning of their choice and the need to suitably address the
issues of early marriages and spacing of children. Interventions such as
spread of education, compulsory registration of marriage and special
programmes like BSY should impact on delaying the age of marriage so
that by 2010 child marriages are eliminated.

6.5 Women’s traditional knowledge about health care and nutrition will be
recognized through proper documentation and its use will be encouraged.
The use of Indian and alternative systems of medicine will be enhanced
within the framework of overall health infrastructure available for women.

Nutrition

6.6 In view of the high risk of malnutrition and disease that women face at
all the three critical stages viz., infancy and childhood, adolescent and
reproductive phase, focussed attention would be paid to meeting the
nutritional needs of women at all stages of the life cycle. This is also
important in view of the critical link between the health of adolescent girls,
pregnant and lactating women with the health of infant and young
children. Special efforts will be made to tackle the problem of macro and
micro nutrient deficiencies especially amongst pregnant and lactating
women as it leads to various diseases and disabilities.

6.7 Intra-household discrimination in nutritional matters vis-à-vis girls and

women will be sought to be ended through appropriate strategies.
Widespread use of nutrition education would be made to address the
issues of intra-household imbalances in nutrition and the special needs of
pregnant and lactating women. Women’s participation will also be ensured
in the planning, superintendence and delivery of the system.

Drinking Water and Sanitation

6.8 Special attention will be given to the needs of women in the provision
of safe drinking water, sewage disposal, toilet facilities and sanitation
within accessible reach of households, especially in rural areas and urban
slums.Women’s participation will be ensured in the planning, delivery and
maintenance of such services.

Housing and Shelter

6.9 Women’s perspectives will be included in housing policies, planning of

housing colonies and provision of shelter both in rural and urban areas.
Special attention will be given for providing adequate and safe housing and
accommodation for women including single women, heads of households,
working women, students, apprentices and trainees.

Environment

6.10 Women will be involved and their perspectives reflected in the

policies and programmes for environment, conservation and restoration.
Considering the impact of environmental factors on their livelihoods,
women’s participation will be ensured in the conservation of the
environment and control of environmental degradation. The vast majority
of rural women still depend on the locally available non-commercial
sources of energy such as animal dung, crop waste and fuel wood. In order
to ensure the efficient use of these energy resources in an environmental
friendly manner, the Policy will aim at promoting the programmes of non-
conventional energy resources. Women will be involved in spreading the
use of solar energy, biogas, smokeless chulahs and other rural application
so as to have a visible impact of these measures in influencing eco system
and in changing the life styles of rural women.

Science and Technology

6.11 Programmes will be strengthened to bring about a greater

involvement of women in science and technology. These will include
measures to motivate girls to take up science and technology for higher
education and also ensure that development projects with scientific and
technical inputs involve women fully. Efforts to develop a scientific temper
and awareness will also be stepped up. Special measures would be taken
for their training in areas where they have special skills like communication
and information technology. Efforts to develop appropriate technologies
suited to women’s needs as well as to reduce their drudgery will be given a
special focus too.

Women in Difficult Circumstances

6.12 In recognition of the diversity of women’s situations and in

acknowledgement of the needs of specially disadvantaged groups,
measures and programmes will be undertaken to provide them with
special assistance. These groups include women in extreme poverty,
destitute women, women in conflict situations, women affected by natural
calamities, women in less developed regions, the disabled widows, elderly
women, single women in difficult circumstances, women heading
households, those displaced from employment, migrants, women who are
victims of marital violence, deserted women and prostitutes etc.

Violence against women

7.1 All forms of violence against women, physical and mental, whether at
domestic or societal levels, including those arising from customs, traditions
or accepted practices shall be dealt with effectively with a view to
eliminate its incidence. Institutions and mechanisms/schemes for
assistance will be created and strengthened for prevention of such
violence , including sexual harassment at work place and customs like
dowry; for the rehabilitation of the victims of violence and for taking
effective action against the perpetrators of such violence. A special
emphasis will also be laid on programmes and measures to deal with
trafficking in women and girls.

Rights of the Girl Child

8.1 All forms of discrimination against the girl child and violation of her
rights shall be eliminated by undertaking strong measures both preventive
and punitive within and outside the family. These would relate specifically
to strict enforcement of laws against prenatal sex selection and the
practices of female foeticide, female infanticide, child marriage, child
abuse and child prostitution etc. Removal of discrimination in the
treatment of the girl child within the family and outside and projection of a
positive image of the girl child will be actively fostered. There will be
special emphasis on the needs of the girl child and earmarking of
substantial investments in the areas relating to food and nutrition, health
and education, and in vocational education. In implementing programmes
for eliminating child labour, there will be a special focus on girl children.

Mass Media

9.1 Media will be used to portray images consistent with human dignity of
girls and women. The Policy will specifically strive to remove demeaning,
degrading and negative conventional stereotypical images of women and
violence against women. Private sector partners and media networks will
be involved at all levels to ensure equal access for women particularly in
the area of information and communication technologies. The media
would be encouraged to develop codes of conduct, professional guidelines
and other self regulatory mechanisms to remove gender stereotypes and
promote balanced portrayals of women and men.

Operational Strategies

Action Plans

10.1 All Central and State Ministries will draw up time bound Action Plans
for translating the Policy into a set of concrete actions, through a
participatory process of consultation with Centre/State Departments of
Women and Child Development and National /State Commissions for
Women. The Plans will specifically including the following: -

i) Measurable goals to be achieved by 2010.

ii) Identification and commitment of resources.

iii) Responsibilities for implementation of action points.

iv) Structures and mechanisms to ensure efficient monitoring, review and

gender impact assessment of action points and policies.

v) Introduction of a gender perspective in the budgeting process.

10.2 In order to support better planning and programme formulation and

adequate allocation of resources, Gender Development Indices (GDI) will
be developed by networking with specialized agencies. These could be
analyzed and studied in depth. Gender auditing and development of
evaluation mechanisms will also be undertaken along side.

10.3 Collection of gender disaggregated data by all primary data collecting

agencies of the Central and State Governments as well as Research and
Academic Institutions in the Public and Private Sectors will be undertaken.
Data and information gaps in vital areas reflecting the status of women will
be sought to be filled in by these immediately. All
Ministries/Corporations/Banks and financial institutions etc will be advised
to collect, collate, disseminate and maintain/publish data related to
programmes and benefits on a gender disaggregated basis. This will help in
meaningful planning and evaluation of policies.

Institutional Mechanisms

11.1 Institutional mechanisms, to promote the advancement of women,

which exist at the Central and State levels, will be strengthened. These will
be through interventions as may be appropriate and will relate to, among
others, provision of adequate resources, training and advocacy skills to
effectively influence macro-policies, legislation, programmes etc. to
achieve the empowerment of women.

11.2 National and State Councils will be formed to oversee the

operationalisation of the Policy on a regular basis. The National Council will
be headed by the Prime Minister and the State Councils by the Chief
Ministers and be broad in composition having representatives from the
concerned Departments/Ministries, National and State Commissions for
Women, Social Welfare Boards, representatives of Non-Government
Organizations, Women’s Organisations, Corporate Sector, Trade Unions,
financing institutions, academics, experts and social activists etc. These
bodies will review the progress made in implementing the Policy twice a
year. The National Development Council will also be informed of the
progress of the programme undertaken under the policy from time to time
for advice and comments.

11.3 National and State Resource Centres on women will be established

with mandates for collection and dissemination of information,
undertaking research work, conducting surveys, implementing training and
awareness generation programmes, etc.These Centers will link up with
Women’s Studies Centres and other research and academic institutions
through suitable information networking systems.

11.4 While institutions at the district level will be strengthened, at the

grass-roots, women will be helped by Government through its
programmes to organize and strengthen into Self-Help Groups (SHGs) at
the Anganwadi/Village/Town level. The women’s groups will be helped to
institutionalize themselves into registered societies and to federate at the
Panchyat/Municipal level. These societies will bring about synergistic
implementation of all the social and economic development programmes
by drawing resources made available through Government and Non-
Government channels, including banks and financial institutions and by
establishing a close Interface with the Panchayats/ Municipalities.

Resource Management

12.1 Availability of adequate financial, human and market resources to

implement the Policy will be managed by concerned Departments,
financial credit institutions and banks, private sector, civil society and
other connected institutions. This process will include:

(a) Assessment of benefits flowing to women and resource allocation to

the programmes relating to them through an exercise of gender budgeting.
Appropriate changes in policies will be made to optimize benefits to
women under these schemes;

(b) Adequate resource allocation to develop and promote the policy

outlined earlier based on (a) above by concerned Departments.

(c) Developing synergy between personnel of Health, Rural Development,

Education and Women & Child Development Department at field level and
other village level functionaries’

(d) Meeting credit needs by banks and financial credit institutions through
suitable policy initiatives and development of new institutions in
coordination with the Department of Women & Child Development.

12.2 The strategy of Women’s Component Plan adopted in the Ninth Plan
of ensuring that not less than 30% of benefits/funds flow to women from
all Ministries and Departments will be implemented effectively so that the
needs and interests of women and girls are addressed by all concerned
sectors. The Department of Women and Child Development being the
nodal Ministry will monitor and review the progress of the implementation
of the Component Plan from time to time, in terms of both quality and
quantity in collaboration with the Planning Commission.

12.3 Efforts will be made to channelize private sector investments too, to

support programmes and projects for advancement of women

Legislation

13.1 The existing legislative structure will be reviewed and additional

legislative measures taken by identified departments to implement the
Policy. This will also involve a review of all existing laws including personal,
customary and tribal laws, subordinate legislation, related rules as well as
executive and administrative regulations to eliminate all gender
discriminatory references. The process will be planned over a time period
2000-2003. The specific measures required would be evolved through a
consultation process involving civil society, National Commission for
Women and Department of Women and Child Development. In
appropriate cases the consultation process would be widened to include
other stakeholders too.

13.2 Effective implementation of legislation would be promoted by

involving civil society and community. Appropriate changes in legislation
will be undertaken, if necessary.

13.3 In addition, following other specific measures will be taken to

implement the legislation effectively.

(a) Strict enforcement of all relevant legal provisions and speedy redressal
of grievances will be ensured, with a special focus on violence and gender
related atrocities.

(b) Measures to prevent and punish sexual harassment at the place of

work, protection for women workers in the organized/ unorganized sector
and strict enforcement of relevant laws such as Equal Remuneration Act
and Minimum Wages Act will be undertaken,

(c) Crimes against women, their incidence, prevention, investigation,

detection and prosecution will be regularly reviewed at all Crime Review
fora and Conferences at the Central, State and District levels. Recognised,
local, voluntary organizations will be authorized to lodge Complaints and
facilitate registration, investigations and legal proceedings related to
violence and atrocities against girls and women.
(d) Women’s Cells in Police Stations, Encourage Women Police Stations
Family Courts, Mahila Courts, Counselling Centers, Legal Aid Centers and
Nyaya Panchayats will be strengthened and expanded to eliminate violence
and atrocities against women.

(e) Widespread dissemination of information on all aspects of legal rights,

human rights and other entitlements of women, through specially
designed legal literacy programmes and rights information programmes
will be done.

Gender Sensitization

14.1 Training of personnel of executive, legislative and judicial wings of the

State, with a special focus on policy and programme framers,
implementation and development agencies, law enforcement machinery
and the judiciary, as well as non-governmental organizations will be
undertaken. Other measures will include:

(a) Promoting societal awareness to gender issues and women’s human

rights.

(b) Review of curriculum and educational materials to include gender

education and human rights issues

(c) Removal of all references derogatory to the dignity of women from all
public documents and legal instruments.

(d) Use of different forms of mass media to communicate social messages

relating to women’s equality and empowerment.

Panchayati Raj Institutions

15.1 The 73rd and 74th Amendments (1993) to the Indian Constitution
have served as a breakthrough towards ensuring equal access and
increased participation in political power structure for women. The PRIs
will play a central role in the process of enhancing women’s participation in
public life. The PRIs and the local self Governments will be actively
involved in the implementation and execution of the National Policy for
Women at the grassroots level.

Partnership with the voluntary sector organizations

16.1 The involvement of voluntary organizations, associations, federations,

trade unions, non-governmental organizations, women’s organizations, as
well as institutions dealing with education, training and research will be
ensured in the formulation, implementation, monitoring and review of all
policies and programmes affecting women. Towards this end, they will be
provided with appropriate support related to resources and capacity
building and facilitated to participate actively in the process of the
empowerment of women.

International Cooperation

17.1 The Policy will aim at implementation of international

obligations/commitments in all sectors on empowerment of women such
as the Convention on All Forms of Discrimination Against Women
(CEDAW), Convention on the Rights of the Child (CRC), International
Conference on Population and Development (ICPD+5) and other such
instruments. International, regional and sub-regional cooperation towards
the empowerment of women will continue to be encouraged through
sharing of experiences, exchange of ideas and technology, networking with
institutions and organizations and through bilateral and

ADOPTION and related issues – 4

January 8, 2008 by latha vidyaranya ﾧ

In this post I would like to discuss other issues connected with adoption, more in the context of Indian
milieu.

Who are the ones who generally adopt a child?

Married couples who have not had a child of their own, due to various reasons, who now want to go in
for adoption.

Married couples who have their biological child/children and yet desire to expand their family through
adoption.

Many couples these days want to remain childless by choice, go in for adoption, regardless of their
fertility factor, to give a loving and caring home to a child in need.

Those who are not married, but are desirous of mothering or fathering a child can also adopt. Previously
single men were barred from adopting a child, but now it is allowed.

There are certain conditions to be satisfied for adopting a child:

The couple should have been married for 5 years or more to go in for adoption.

The couple needs to have a reasonable income to be able to bring up a child.

The couple should have a good health status.

The couple should be free of any criminal records.

The composite age of the couple (i.e, their ages put together) should not exceed 90 to adopt a young
child or an infant. And the age of each of them should not be above 45 years.

In case their composite age exceeds 90, they may go in for adoption of an older child.
Singles who wish to adopt should be between the ages of 30 and 45 years.

Singles should have a family supporting them in this regard.

Age difference between the single person and the child needs to be atleast 21.

A girl child will not be given in adoption to a single male person.

A child will not be given for adoption to same sex couples.

Who are the children that are available for adoption?

First of all the child should be legally free for adoption.

Those who have been surrendered by biological parents or by the unwed mother- due to various kinds of
prevailing life situations that make it difficult for them to bring up the child.
In cases of surrendered children, the agency generally gives the parent/s two months for a change of
mind. In the meanwhile they are offered counselling services to be able to think of alternatives for the
care and maintenance of the child.

Abandoned children found by a third party or police or by the child welfare committees or orphaned child
found by anybody.

Destitute children – those who may run away from home and reach these institutions through police or
through the child welfare committees or those who may voluntarily join the institution.

In the above cases the police do their best to trace the parents and send the children back home. If they
can not be traced, then they may be placed for adoption. In case of older child, its consent is to be taken
orally and in writing before placing for adoption.

In case of siblings, twins and triplets, care is taken not to separate the children and to give them to a
single family in adoption.

Which is the adoption regulating body in India?

C A R A Central Adoption Resource Agency is the governing body in our country that regulates all matters
involved in adoption. Its main objective is to find a loving and caring home for every orphan / destitute /
surrendered child.

There are In-country adoptions and also Inter-country adoptions done through this Body. Usually before
considering a child for Inter-country adoption, it is first considered for adoption into an Indian family
residing in India.

All adoption placement agencies in India need to be registered under C A R A and they must follow the
guidelines set up by the State or Central Government. They are called Licenced Adoption Placement
Agencies or L A P A.

Procedure for Adoption:

Those desirous of adopting a child need to first register themselves in any of the registered Adoption
Agencies, with documents like Income Certificate, Marriage Certificate, Proof of Residence, health
certificate, photographs of the couple, reference letters by relatives/friends who can vouch for the
suitability of the couple to take care of the child and other such documents.
A Home-study is done by a social worker appointed by the Agency. The social worker will check the
credentials and the suitability of the Parents desirous of adoption. A Home-study Report is prepared and
submitted to the Agency.

Pre-adoption counselling is done to apprise them of all the sensibilities involved in an adoption.

Then the child is shown to them keeping in mind the description desired by the propective parents.
Whenever possible, care is also taken to match the child’s features as close as possible to those of the
parents so that there will not be too much of a mis-match and the child can gel well with other members
of the family.

In case of an older child above 6 years, the child’s consent is also taken for adoption into this family.

Now petition will be filed in the court for obtaining orders for adoption from the court. This may take 6 to
8 weeks.

In case of a surrendered child, the surrendering document would have been signed by the parents or the
unwed mother or in case of an unwed minor mother, other responsible family member’s signature is
taken. These documents are kept in a sealed cover and given to the judge for his /her perusal. This
document is kept by the agency in all confidence and can be shown to the child only after attaining the
age of 18, if he/she desires to know this information.

There are three different laws that govern the adoption procedure and the adoptive parents are given
information about these laws and they can decide upon the law by which the adoption that they go in
would be governed.

Follow up visits by the social worker is done up to a year to check how the child is being brought up. In
case the parents require post-adoption counselling on any matter, that would be available through the
social worker. The visits by the social worker ends once the agency feels satisfied with the adjustment
happening between the child and the parent/s.

The costs involved:

Cost of Registration is Rs. 200/-

Cost of preparation of Home-study report: Rs. 1,000/-

Maintanance charges of the child in the institution from the time of its admission : not exceeding Rs.
15,000/-, calculated as Rs. 50/- per day

Extra charges of treatment for any illnesses or hospitalization charges as produced through the Bills.

Conclusion:

Here concludes my post on adoption and related issues. I have tried my best to give you all very authentic
information in all the posts based on my own professional experience and the talks that I have had with
adoptive parents and adopted children. I am open to corrections and progressive thoughts on adoption.

The issues that I have discussed in these posts are the ones that come up during counselling sessions.
There can be many adoptive parents and birth parents and also adopted children who may not have
experienced these issues and who may be perfectly adjusted and totally comfortable with the adoption
undergone and who may have never felt the need for any kind of counselling. Hats off to these people. I
am sure they can be very good confidants and counsellors to those who may require help in sorting out
some of these issues and these well adjusted people and children can be of very big help to the support
groups of adoptive parents and adopted children to motivate them to move on with life, enjoying every
moment of parenting and every moment of growing up in an adoptive family.

I once again wish to thank the members of Sudatta Organization, Bangalore, for giving talks at our Training
Centre in Malleshwaram to spread awareness about adoption. Sudatta is a self-support group of adoptive
parents and adopted children in Bangalore. It was initiated first at Chennai. They have their branches in
other cities of India, like Mangalore, Pune, Coimbatore. More about Sudatta here ﾧ.

I request the readers to please state your own experiences as somebody who has been touched by
adoption in any way in your lives. That would make the posts even more enriching.

Thanks to all of you for being with me in these posts.

Federalism is a basic feature of the Constitution of India in which the Union of India is
permanent and indestructible. Both the Centre and the States are co-operating and
coordinating institutions having independence and ought to exercise their respective powers
with mutual adjustment, respect, understanding and accommodation. Tension and conflict
of the interests of the Centre and the respective units is an integral part of federalism.
Prevention as well as amelioration of conflicts is necessary. Thus, the Indian federalism was
devised with a strong Centre. Federalism with a strong Centre was inevitable as the framers
of the Indian Constitution were aware that there were economic disparities as several areas
of India were economically as well as industrially far behind in comparison to others. The
nation was committed to a socio economic revolution not only to secure the basic needs of
the common man and economic unity of the country but also to bring about a fundamental
change in the structure of Indian society in accordance with the egalitarian principles. With
these considerations in mind the Constitution makers devised the Indian federation with a
strong Union.

Federalism Defined

Territorial spatial arrangement for administrative convenience.In other sense it is the

existence of two chambers of Govt.I is the existence of dual government.Federalism
constitutes a complex governmental mechanism for the governance of a country. It seeks to
draw a balance between the power in the Centre and those of number of units. A federal
Constitution envisages a demarcation of governmental functions and powers between the
Centre and the regions by the sanction of the Constitution, which is a written document.

The framers of the Indian Constitution attempted to avoid the difficulties faced by the
federal Constitutions of U.S.A, Canada and Australia and incorporate certain unique features
in the working of the Indian Constitution. Thus, our Constitution contains certain novel
provisions suited to the Indian conditions. The doubt which emerges about the federal
nature of the Indian Constitution is the powers of intervention in the affairs of the states
given to the Central Government by the Constitution .According to Wheare, in practice the
Constitution of India is quasi-federal in nature and not strictly federal. Sir Ivor Jennings was
of the view that India has a federation with a strong centralizing policy. In the words of
D.D.Basu The Constitution of India is neither purely federal nor unitary, but is a combination
of both. It is a union or a composite of a novel type.

The Indian Constitution is not only regarded as Federal or Unitary in the strict sense of the
terms. It is often defined to be quasi-federal in nature also. Throughout the Constitution,
emphasis is laid on the fact that India is a single united nation. India is described as a Union
of States and is constituted into a sovereign, secular, socialist, democratic republic.

It should be remembered that the aforementioned provisions in the Constitution are aimed
at establishing a working balance between the requirements of national unity and autonomy
of the States. Dr Ambedkar, one of the architects of the Indian Constitution, rightly
prophesied: Our Constitution would be both unitary as well as federal according to the
requirements of time and circumstances.

COnstitutional Intent of Indian Federalism

Being aware that not withstanding a common cultural heritage, without political unity, the
country would disintegrate under the pressure of fissiparous forces, the Constituent
Assembly addressed itself to the immensely complex task of devising a Union with a strong
Centre. In devising the pattern of the Centre State relations they were influenced by the
Constitutions of Canada and Australia which have a Parliamentary form of government and
America which has a Presidential form of government. The Government of India Act, 1935
was also relied upon with significant changes. The Constitution cannot be called "federal" or
"unitary" in the ideal sense of the terms.

It is stipulated in the Constitution that India will be a Union of States (Art.1). The
Constitution, thus postulated India as a Union of States and consequently, the existence of
federal structure of governance for this Union of States becomes a basic structure of the
Union of India. Dr. Ambedkar, the principal architect of the Constitution observed-........ the
use of the word Union is deliberate. The Drafting Committee wanted to make it clear that
though India was to be a federation, the federation was not a result of an agreement by the
States to join in the federation and that the federation not being the result of an agreement
no state has a right to secede from it. Though the country and the people may be divided
into different states for convenience of administration the whole country is one integral
whole, its people a single people living under a single imperium derived from a single
source.
 Federal Features of the Constitution of India

The Constitution makes a distribution of powers between the Union and the States, the
jurisdiction of each being demarcated by the Union, State and Concurrent lists. In case of a
conflict between the two legislatures over a matter in the Concurrent list, the will of the
Parliament prevails. The supremacy of the Constitution- the hallmark of a federation- is an
important feature of the Indian polity. Neither the Central government nor the State
Governments can override or contravene the provisions of the Constitution. Another pre-
requisite of a federation, namely, an independent judiciary - an interpreter and guardian of
the Constitution - is also present in the Indian Federation. The Supreme Court can declare
any law passed by the Union Parliament or a State legislature ultra vires if it contravenes any
of the provisions of the Constitution.Written and rigid character of Indian
Constitution,existence of bicameral legislature in the Parliament etc… are other federal
features of Indian Constitution.

Non-Federal features of the Constitution of India

As opposed to this is the opinion of some scholars who regard the Indian Constitution to be
unitary in nature. It has been argued that the Indian Constitution does not satisfy certain
essential tests of federalism, namely- the right of the units to make their own Constitution
and provision of double citizenship. Further, in the three-fold distribution of powers, the
most important subjects have been included in the Union list, which is the longest of the
three lists containing 99 items. Even regarding the Concurrent list, Parliament enjoys an
overriding authority over the State Legislatures. Article 253 empowers the Union Parliament
to make laws implementing any treaty, agreement or convention with another country or
any decision made at any international conference, association, or other body.

Some of the other Constitutional provisions, which are often quoted in favour of the Unitary
status of the Indian Constitution are- emergency powers of the president to declare national
emergency or declaring emergency in a state in the event of failure of Constitutional
machinery, the appointment of governors, unification of judiciary and the dependence of
the States on the Centre for finance. The power of the Union to alter the names and
territory of the states, to carry out Constitutional amendments and to affect co-ordination
among the States and settle their mutual disputes is also regarded as an indicator of the
unitary character of the Indian Constitution.

Judicial Interpretation on Indian Federalism

The debate whether India has a ‘Federal Constitution’ and ‘Federal Government’ has been
grappling the Apex court in India because of the theoretical label given to the Constitution of
India, namely, federal, quasi-federal, unitary.

State of West Bengal V. Union of India.- The main issue involved in this case was the exercise
of sovereign powers by the Indian states. The apex court held that the Indian Constitution
did not propound a principle of absolute federalism. The court outlined the characteristics,
which highlight the fact that the Indian Constitution is not a "traditional federal
Constitution". Firstly, there is no separate Constitution for each State as is required in a
federal state. The Constitution is the supreme document, which governs all the states.
Secondly, the Constitution is liable to be altered by the Union Parliament alone and the units
of the country i.e. the States have no power to alter it. Thirdly, the distribution of powers is
to facilitate local governance by the states and national policies to be decided by the Centre.
Lastly, as against a federal Constitution, the Indian Constitution renders supreme power
upon the courts to invalidate any action violative of the Constitution. The Supreme Court
further held that both the legislative and executive power of the States are subject to the
respective supreme powers of the Union. Legal sovereignty of the Indian nation is vested in
the people of India. The political sovereignty is distributed between the Union and the
States with greater weight age in favor of the Union. Another reason which militates against
the theory of the supremacy of States is that there is no dual citizenship in India. Thus, the
learned judges concluded that the structure of the Indian Union as provided by the
Constitution one is centralized, with the States occupying a secondary position vis-à-vis the
Centre, hence the Centre possessed the requisite powers to acquire properties belonging to
States.

Justice Subba Rao -was of the opinion that under the scheme of the Indian Constitution,
sovereign powers are distributed between the Union and the States within their respective
spheres. As the legislative field of the union is much wider than that of the State legislative
assemblies, the laws passed by the Parliament prevail over the State laws in case of any
conflict. In a few cases of legislation where inter-State disputes are involved, sanction of the
President is made mandatory for the validity of those laws. Further, every State has its
judiciary with the State High Court at the apex. This, in the opinion of the learned judge does
not affect the federal principle. He gives the parallel of Australia, where appeals against
certain decisions of the High Courts of the Commonwealth of Australia lie with the Privy
Council. Thus the Indian federation cannot be negated on this account. In financial matters
the Union has more resources at its disposal as compared to the states. Thus, the Union
being in charge of the purse strings, can always, persuade the States to abide by its advice.
The powers vested in the union in case of national emergencies, internal disturbance or
external aggression, financial crisis, and failure of the Constitutional machinery of the State
are all extraordinary powers in the nature of safety valves to protect the country’s future.
The power granted to the Union to alter the boundaries of the States is also an extraordinary
power to meet future contingencies. In their respective spheres, both executive and
legislative, the States are supreme. The minority view expressed by Justice Subba Rao has
consistency with the federal scheme under the Indian Constitution. The Indian Constitution
accepts the federal concept and distributes the sovereign powers between the coordinate
Constitutional entities, namely, the Union and the States.
State of Rajasthan V. Union of India.- It was stated that even if it is possible to see a federal
structure behind the establishment of separate executive, legislative and judicial organs in
the States, it is apparent from the provision illustrated in Article 356 that the Union
Government is entitled to enforce its own views regarding the administration and granting of
power in the States. The extent of federalism of the Indian Union is largely watered down by
the needs of progress, development and making the nation integrated, politically and
economically co-ordinated, and socially and spiritually uplifted. In conclusion the apex Court
held that it was the ‘prerogative’ of the Union Parliament to issue directives if they were for
the benefit of the people of the State and were aimed at achieving the objectives set out in
the Preamble.

S.R.Bommai V. Union of India.- Four opinions were rendered, expressing varying views.
Justice Ahmadi opined that in order to understand the true nature of the Indian
Constitution, it is essential to comprehend the concept of federalism. The essence of the
federation is the existence of the Union and the States and the distribution of powers
between them. The significant absence of expressions like ‘federal’ or ‘federation’ in the
Constitution, the powers of the Parliament under Articles 2 and 3, the extraordinary powers
conferred to meet emergency situations, residuary powers, powers to issue directions to the
States, concept of single citizenship and the system of integrated judiciary create doubts
about the federal nature of the Indian Constitution. Thus, it would be more appropriate to
describe the Constitution of India as quasi- federal or unitary rather than a federal
Constitution in the true nature of the term. Justice Sawant and Justice Kuldip Singh, As
opposed to this, regarded democracy and federalism as essential features of the Indian
Constitution. The overriding powers of the Centre in the event of emergency do not destroy
the federal character of the Indian Constitution. The learned judges elaborated upon the
scope and justified use of the power conferred on the president by Article 356 which will not
restrict the scope of the independent powers of the respective States for "......every State is
constituent political unit and has to have an exclusive Executive and Legislature elected and
constituted by the same process as the Union Government.

Justice Ramaswamy The end sought to be achieved by the Constitution makers was to place
the whole country under the control of a unified Central Government, while the States were
allowed to exercise their sovereign powers within their legislative, executive and
administrative powers. The essence of federalism lies in the distribution of powers between
the Centre and the State. Justice Ramawamy declared the Indian structure as organic
federalism, designed to suit the parliamentary form of Government and the diverse
conditions prevailing in India.

Justice Jeevan Reddy and Justice Agarwal- opined that the expression federal or federal
form of government has no fixed meaning. The Constitution is also distinct in character, a
federation with a bias in favour of the Centre. But this factor does not reduce the States to
mere appendages of the Centre. Within the sphere allotted to them the states are supreme.
We can henceforth see that the Indian judiciary had interpreted the Constitution to declare
India a unitary nation. This view of the apex court has lately undergone a change. The Court
has recognized the fact that the framers of the Indian Constitution intended to provide a
federal structure with a strong Centre, which would prevent the nation from
disintegration.In a subsequent case Chief Justice P.B.Gajendragadkar, emphasized upon the
federal nature of the Constitution and the Judiciary as the sole interpreter of the
Constitution which could not be changed by the process of ordinary legislation.In the basic
structure thesis case Keshavananda Bharti V. State of Kerala some of the judges in the full
Constitutional Bench expressed federalism as one of the basic features of the Indian
Constitution. In another case Justice Bhagwati, described Indian Constitution as a federal or
quasi- federal Constitution. In Sat Pal V. State of Punjab, the Supreme Court again held that
Ours is a Constitution where there is a combination of federal structure with unitary
features....... In Pradeep Jain V. Union of India, the Apex Court expressed a non-
traditionalistic yet pragmatic opinion while explaining the federal concept in the context of
the unified legal system in India- India is not a federal State in the traditional sense of that
term. It is not a compact of sovereign State which have come together to form a federation
by ceding undoubtedly federal features. In Ganga Ram Moolchandani v. State of Rajasthan
the Supreme Court reiterated: Indian Constitution is basically federal in form and is marked
by the traditional characteristics of a federal system, namely supremacy of the Constitution,
division of power between the Union and States and existence independent judiciary. The
apex Court in ITC LTD v Agricultural Produce Market Committee expressed a similar opinion.

Conclusion

The finer federal facet has often been misinterpreted by the central operators. So the battle
for federal affirmation and restoration of democratic decentralization has gained momentum
over the decade. Important Commissions like Rajamannar and Sarkaria Commission have
stressed on the federal soul of the Constitution. In the opinion of Amal Ray, the Indian
Constitution is a product of two conflicting cultures one representing the national leader’s
normative concern for India’s unique personality and the other over-emphasizing the
concern for national unity, security, etc. And as a result, the founding fathers opted for a
semi-hegemonic federal structure where the balance is in favour of the Centre. This concept
is aptly described in the insight offered by Dr. Ambedkar: the Indian Constitution would work
as a federal system in 'normal times' but in times of 'emergency' it could be worked as
though it were a unitary system. The critics of the Indian Federal system must not ignore the
fact that not only the Federal Government in India has been made deliberately strong, there
is also a centralizing tendency in the other federal states of the world such as Switzerland,
Australia, Canada and the United States.

In an attempt to assert their independence the States have, at various points of time tried to
flout the Centre’s orders. An example was the disobedience of Karnataka to confirm to the
Centre’s directives regarding release of water to Tamil Nadu. Such actions have generated
wide spread opposition from interested parties. A similar situation arose when Punjab
Termination of Agreements Bill, 2004, was flouted by the State of Punjab recently. The
unilateral termination of a tripartite agreement raised a controversy in which the authority
of the State to commit such an act is being questioned. Annulling the very basis on which
the Supreme Court had pressured the State to implement the river water-sharing agreement
of 1981, the Bill has created an unprecedented Constitutional crisis.

In a response to the increasing number of water disputes the United Progressive Alliance
Government has proposed to set up two Commissions to look into the Centre- State
relations, including river water- sharing, and to examine administrative reforms.

In the light of the past experiences of misuse of power certain amendments should be
effected which will strengthen the federal nature of our Constitution. Firstly, there should be
devolution of more financial resources and powers on the States so that they do not have to
depend on the Centre for financial assistance. Secondly number of statutory grants to which
the States are entitled should increase. Thirdly, the States should also be given greater
autonomy to undertake developmental programmes. Lastly, there should be some inbuilt
safeguards against the blatant misuse of Article 356 by successive central Governments.

It is time to undertake a study of Indian Federalism with a view to valuate the trends,
frictions and difficulties which have developed in the area of inter-governmental relations
and to seek to evolve ways and means to meet the challenging task of making the Indian
federation a more robust, strong and workable system so that the country may meet the
tasks of self-improvement and development.

The responsibility lies on not only the jurists and policy framers, but also the citizens of the
country to work in a harmonious manner for the development of the country.

Prepared by
India is a large country having continental dimensions and comprising no fewer than 28
States and 7 Union Territories. It is a multi-racial, multi-lingual nation. There are scores of
regional languages, various strains of culture and different loyalties, single as well as
multiple. Amidst the amazing diversities, it is natural that regional feelings, regional parties,
regional institutions and similar other organizations meant for voicing the aspirations of local
people and providing forums for them, should emerge. Indeed, with the passage of years,
the multi-faceted aspirations, which together may be described as regionalism, have gained
strength.

It is not a new phenomenon. In fact, the fillip given to regionalism by the emergence of the
Telegu Desam Party (TDP) in Andhra Pradesh in 3982 has a historical continuity. The growth
of this trend can be traced back to the fast unto death by Potti Srivamulu over the demand
for the creation of Andhra Pradesh which set in motion the reorganization of State along
linguistic lines in 1956.

In principle, regionalism need not be regarded as an unhealthy or anti-national phenomenon

—unless it takes a militant, aggressive turn and encourages the growth of secessionist
tendencies, (as it did in Punjab during the past five years or so). National unity is not
impaired if the people of a region have a genuine pride in their language and culture. But
regionalism develops into a serious threat to national unity if politicians do not go beyond
their regional loyalty and claim to stand only for their regional interests if regionalism is to
be regarded as an unhealthy phenomenon, decentralization too would be objectionable,
which of course it is not. So there is nothing basically contradictory between nationalism and
regionalism. Nor does the growth of regional values and consolidation of regional forces as
such pose a challenge to the central administration of the country.

Any attempt to counter regionalism in the erroneous belief that is not conducive to national
interests, would be ill-conceived. Enforced uniformity in a huge country like India would be
sheer-folly. Regional parties do not hinder national unity and integrity as long as they do not
exceed their area of activity.

Several regional political parties have merged in recent years and have gained strength for
obvious reasons. The handful of national parties cannot, by the very nature of things,
adequately represent and pursue regional causes. Most of the national patties have even
failed to live up to the people's expectations. That explains why more State-based parties
have been formed in various regions and are quite successful in their aims.

Regional parties are not a new phenomenon. Several parties have been existing in the
country for the last many decades. They have held power, or are still holding power, in many
states such as Andhra Pradesh, Tamil Nadu, Goa, Pondicherry, Jammu and Kashmir, Assam
and other States in the North-Eastern region. But never before were regional parties dubbed
as anti-national or regarded as a threat to the nation's unity.

People repose confidence in regional parties because they believe that they alone can
safeguard the interests of the State concerned and can fight for the legitimate rights and
powers of the States without being hamstring by their association with a national party.
Regional parties naturally concentrate on safeguarding and promoting regional interests. But
they do not sacrifice the larger interests of the country. It is also significant that in the Lok
Sabha a regional party (Telegu Desam) now forms the largest opposition group.

Among the causes of the growth of regionalism is prolonged maladministration and neglect
of an area or State by the Central, Government. There has been a creeping disillusionment
against Central rule. Regional symbols, regional culture, history and in many cases a common
language, all promote regionalism. The Centre's indifference to the development of certain
regions has created imbalances. Some areas particularly in the North, are well developed,
with adequate infrastructure while others are way behind. This explains why there is Telegu
Desam in Andhra Pradesh, DMK in Tamil Nadu and the Jharkhand Movement in Bihar.

There is much concern among leaders of the Congress (I) about the growth of regionalism in
the country. It is looked upon with suspicion and is even regarded as a challenges to
democracy and national integration. But this concern is largely unwarranted; Regionalism
will come into conflict with nationalism only when it becomes aggressive and when
members of the various regional parties tend to forget that they are Indians first and last,
citizens of the same country.

Non-regional conflicts are however a cause for concern. There are constitutional means to
deal with regional conflicts, while the communal and caste conflicts have often to be settled
in the streets. Inter-regional or centre-region disputes have never created a serious
explosion whereas communal clashes frequently cause havoc.

Unfortunately, there are important differences among the regional parties themselves in the
country. The differences of approach and policy have hindered the formation of an effective,
durable and viable combination of regional parties so as to facilitate the emergence of a
national alternative to the ruling party at the centre. The growth of regional parties in itself
is nor incompatible with the process of nation-building.

In a democracy, ideological options are open in the sense that any individual or group can
adopt any ideology, provided, of course, it is within the legal framework. Political parties
have the freedom to compete for power and pursue their respective ideologies. Since
ideologies are no respecters of geographical boundaries, they also check the exclusiveness
of regional identities. In fact, it has been the decline of the party system in recent years that
has inflated the role of regionalism in the country.

As for the cures, three suggestions may be made. First, there should be a greater spirit of
accommodation on the part of the Central authorities. This implies a reversal of the process
of concentration of power which has admittedly been much in evidence in the country,
causing resentment among the opposition-governed State. Power and authority must be
shared on an equitable basis between the Centre and the constituent units, of the Indian
Federation. Harmonious, balanced growth should be the administrations aim, not
suppression of local desires and demands. Of course, firmness is necessary when
regionalism, assumes militant forms, as it has done in Punjab m the form of operation Blue
Star and Operation Thunder, where in recent years certain groups of misguided youth
started running a parallel government and creating chaos. Regionalism must not be allowed
to become a shield for militancy, extremism, establishing a reign of terror and carrying on
other anti-national activities.

The regional parties patriotism should not be suspected, regionalism does not weaken India.
The majority groups should not become arrogant or obsessed with power. They should be
generous towards the minorities, religious, cultural and linguistic Suppression of regional
aspirations is not the right remedy.

There are some uniting factors which need to be further promoted. The emergence of a
national market, the spread of communications, the influence of all India institutions, the
widening transport facilities, the vast network of the electronic media, the establishment of
a common structure of formal education almost throughout the country (four states have
yet to switch over to 10 plus 2 plus 3). These factors helps to counter regional tendencies

judicial process as an instrument of social ordering

Introduction

Introduction

“ Judicial Process” means any judicial proceeding in connection with the dispensation of
justice by any court of competent jurisdiction and “ Social Ordering” means activating the
instrument of Judicial Process in setting right the wrong done or eliminating injustice from
the society. But here we are mainly concerned with role of the constitutional courts evolving
new juristic principles during the course of judicial process for upholding social order
keeping in view the need of fast changing society. Therefore, it would be appropriate to
examine as to whether Judicial Process , is an instrument of social ordering?

Article 32: Instrument of Social Ordering

Article 32 of the Constitution empowers the Supreme Court to issue directions or orders or
writs for enforcement of any right conferred under the Constitution for securing social justice.
The Supreme Court has granted great relief in cases of social injustice to the affected groups
of the society under this provision. Article 32 is an important instrument of judicial process to
enforce social ordering. Article 32 of the Constitution of India itself is a fundamental right,
which accorded free hand to the Judicial Process enable the Supreme Court to take suitable
action for the enforcement of social order. Deprivation of the fundamental rights often results
in to social disorder. The Supreme Court is a sentinel of all fundamental rights, and we are
satisfied to see that the Apex Court has taken recourse of judicial process effectively in every
area of social disorder to set it right and granted relief for each type of evil prevailing in the
society. The Supreme Court has played positive role in implementing social order.

Now it will be appropriate to examine the areas in which judicial process played a vital role
in eliminating social dis-order:-

Backward Classes of the Society

In "Indra Sawhney v. Union of India", AIR 1993 SUPREME COURT 477, the Apex Court
has innovated concept of 'creamy layer test' for securing benefit of social justice to the
backward class, needy people, and excluded persons belonging to 'creamy layer .'

BIGAMY

Bigamy is a social evil which often creates social disorder. The Apex Court has tightened the
noose over those avoiding punishment by taking plea of conversion to Islam. In "Lily
Thomas v. Union of India", AIR 2000 S C 1650, it was held by the Apex Court that the
second marriage of a Hindu husband after conversion to Islam without having his first
marriage dissolved under law, would be invalid, the second marriage would be void in terms
of the provisions of Section 494, IPC and the apostate-husband would be guilty of the offence
punishable under Section 494, IPC. This verdict of the Apex Court would certainly be helpful
in eliminating social evil of bigamy.

Bride Burning

In "Paniben v. State of Gujarat", AIR 1992 S C 1817, the Apex Court held that it would be a
travesty of justice if sympathy is shown when cruel act like bride burning is committed.
Undue sympathy would be harmful to the cause of justice. The Apex Court directed that in
such cases heavy punishment should be awarded.

Bonded Labourers

Bandhua Mukti Morcha v. Union of India", AIR 1984 S C 802, is a good example of social
ordering by way of judicial process. The Apex Court has tried to eliminate socio-economic
evil of bonded labour, including child labour and issued certain guide lines to be followed, so
that recurring of such incidents be eliminated.

Caste system and Judicial Process

In "Lata Singh v. State of U. P.", AIR 2006 SC 2522, the Apex Court has given protection to
the major boy and girl who have solemnized inter-caste or inter-religious marriage.

Child Labour

In "M.C. Mehta v. State of T.N.", AIR 1997 S C 699, the Supreme Court has issued direction
the State Governments to ensure fulfillment of legislative intention behind the Child Labour
(Prohibition and Regulation) Act (61 of 1986). Tackling the seriousness of this socio-
economic problem the Supreme Court has directed the Offending employer to pay
compensation, a sum of Rs. 20,000/ for every child employed.

Child Prostitution

In Gaurav Jain v. U.O.I. AIR 1997 SC 3021, the Apex court issued directions for rescue and
rehabilitation of child prostitutes and children of the prostitutes.

Dowry Death

Dowry death is perhaps one of the worst social disorders prevailing in the society, which
demands heavy hand of Judicial Process to root-out this social evil. In "Raja Lal Singh v.
State of Jharkhand", the Supreme Court has laid down that there is a clear nexus between the
death of Gayatri and the dowry related harassment inflicted on her, therefore, even if Gayatri
committed suicide, S. 304-B of the I. P. C. can still be attracted.

Equality: Man and Woman

In AIR India v. Nargesh Meerza, AIR 1981 SC 1829, the Apex Court declared that – “the
provision of AIR India Service Regulation 46 (i) (c)” or on first pregnancy whichever occurs
earlier” is UN-constitutional, and is violative of Article 14 of the constitution.

Female Foeticide and Judicial Process.

Leading to unhindered female infanticide affecting overall sex ratio in various states causing
serious disorder in the society. In "Centre for Enquiry into Health and Allied Themes
(CEHAT) v. Union of India", AIR 2001 S C 2007, the Apex Court has held that despite the
PNDT Act being enacted by the Parliament five years back, neither the State Governments
nor the Central Government has taken appropriate actions for its implementation. Hence,
directions are issued by the Court for the proper implementation of the PNDT Act, for
eliminating this Social evil.

Goal of Judicial Process

Ultimate goal of Judicial Process , undoubtedly, is to ensure social order and to make the
society safer for its people. Law cannot be effective and useful without taking recourse of
judicial process in maintaining social order. Justice P. N. Bhagwati and Justice V. R. Krishna
Iyer, both were of the opinion that law is an instrument of social change, social justice and
social ordering. Justice Rangnath Mishra, former C.J.I., has rightly observed that ' Law is a
means to an end and justice is the end.' Therefore, undoubtedly we can say that Judicial
Process, which operate laws, is an instrument of social ordering.

Harassment of Woman

The Apex Court in Vishaka v. State of Rajsthan (AIR 1997 SC 3011) created law of the land
holding that the right to be free from sexual harassment is fundamental right guaranteed
under Articles 14, 15 and 21 of the Constitution. The Court has issued guidelines to be
followed by employer for controlling harassment of woman at her work place.

Immoral trafficking

Immoral trafficking has now become a widespread social disorder. This is a deep rooted
social evil has to be controlled. The Apec Court is of the opinion that accused persons are to
be dealt with heavy hands of the Judicial Process in such cases. In "State of Maharashtra v.
Mohd. Sajid Husain Mohd. S. Husain", AIR 2008 SUPREME COURT 155 , the Court has
rejected application for anticipatory bail, in a case where a minor girl was driven to flesh
trade by accused persons , comprised of police officers, politicians and all were absconding
for long time.

Judicial Process and Social Order

It is satisfying to see that achievements of Judicial Process in respect of social ordering has
been significant . Judiciary has not shied away from its responsibility of enforcing social
order. Looking to the need of hour and demands of the changing society, the Supreme Court
has innovated various tools and techniques, for securing social order. One can see how the
Supreme Court of India has innovated, case after case, various juristic principles and
doctrines, for upgrading social order. Needless to say that , Articles14, 15, 16, 17, 38, 39A
and 42 to 47 of the Constitution of India deal with facets of social justice. Courts have played
very wide role in interpreting the Connection for achievements of social justice.

Maintenance

In Mohd. Ahmed Khan v. Shah Bano, AIR 1985 SC 945, the Apex Court , for the first time,
granted maintenance to divorced Muslim woman under section 125 Cr. P. C., ignoring her
personal law, keeping in view essence of equality before law.

In "Dimple Gupta v. Rajiv Gupta", AIR 2008 S C 239, the Apex Court has granted
Maintenance to illegitimate child under S. 125 Cr. P.C. This path breaking judgment has
given breath to the innocent children who were victim of no fault of their own. These verdicts
are judicial instruments of social ordering.

Need of Judicial Process

Noble preamble of our Constitution promises citizens of India to secure Justice, – inter alia ,
social justice, transforming social order. Judicial Process has played a significant role in order
to deliver social justice, by eliminating socio-economic imbalance and social injustice from
the society.

Outraging Modesty of Woman

Outraging the modesty of a woman is a serious social disorder has to be taken seriously by
courts during the course of Judicial Process. In "Kanwar Pal S. Gill v. State (Admn. U. T.
Chandigarh)", the accused slapped on the posterior of the prosecutrix, Mrs. Rupan Deol
Bajaj, an I. A. S. officer , in the presence of other guests. The accused, who was then the
D.G.P. of the State of Punjab. The CJM convicted him under Sections 354 and 509
IPC.Appeal filed by the accused was dismissed by the Apex Court. That by itself is setting a
model for others and it is a good example in connection to social ordering.

Prevention of Atrocity

When members of the S. C. and S. T. assert their rights and demand statutory protection,
vested interest try to cow them down. In these circumstances, anticipatory bail is not
maintainable to persons who commit such offences, such a denial cannot be considered as
violative of Article 14 as held in "State of M.P. v. R. K. Balothia", AIR 1995 S C 1198.

Rape

In "State of M.P. v. Babulal", AIR 2008 SUPREME COURT 582, the Court has laid down the
principle that rape cases need to be dealt with sternly and severely. A socially sensitized
Judge is a better armour in cases of crime against women. Once a person is convicted for an
offence of rape, he should be treated with a heavy hand and must be imposed adequate
sentence. This goes to show that how the Supreme Court is keen in eliminating social
disorder by the heavy hands of judicial process.

Conclusion

Justice V. R. Krishna Iyer, has rightly observed that “ Law is not a brooding omnipotence in
the sky but a pragmatic instrument of social order. Judicial Process is a means of enforcing
law. In the light of the above discussion certainly it it would be perfectly right to say that
Judicial Process is an instrument of social ordering. The prominent work of Indian Courts
today may be seen as prosecuting poor people for petty crime. The main Role of courts
continues to be, as in colonial times to (i) enforce law against (mostly poor) citizens; (ii)
protect property rights(state and private) and (iii) uphold and protect the authority of state. On
the other hand, in the immortal words of Supreme Court in S.P.Gupta Case THE
CONSTITUTION has made a revolutionary change in the role of Indian Courts –from being
an arm of the RAJ to being an instrument of SWARAJ, an “arm of social revolution”.

LAW AS AN INSTRUMENT OF SOCIAL CHANGE

BY

PRAVEEN DALAL*

The aim of this article is to put forward the true nature and purpose of the law. The
need for this article has arisen because for every minor new situation we start crying for the
change in the law. In a country which is facing the problem of “poverty”, “unemployment”,
“starvation”, etc, it is not a wise idea to agitate again and again for every minute discomfort
by invoking the “legislative machinery’ of the country. The time, money and resources spent
on these “unproductive initiatives” should be used for productive purposes only. These
“unpredictable changes” only reflect the “priority” of the governing force of India.

I. Introduction

The law regulates the social interests, arbitrates conflicting claims and demands
security of persons and property of the people and is an essential function of the state. It
could be achieved through instrumentality of law. Undoubtedly, there is a cross cultural
conflict where living law must find answer to the new challenges and the courts are required
to mould the sentencing system to meet the challenges. The contagion of lawlessness would
undermine social order and lay it in ruins. Protection of society and stamping out criminal
proclivity must be the object of the law, which must be achieved by imposing appropriate
sentence. Therefore, law as a corner stone of the edifice of “order” should meet the
challenges confronting the society. The social impact of the crime, e.g. where it relates to
offences against women, dacoity, kidnapping and other offences involving moral turpitude or
moral delinquency which have great impact on social order and public interest, cannot be lost
sight of and per se require exemplary treatment [1]. The law in order to be legitimate and legal
must also satisfy the mandates of the Constitution of India. The Constitution of India is not
intended to be the arena of legal quibbling for men with long purses. It is made for the
common people. It should generally be so construed as that they can understand and
appreciate it. The more they understand it the more they love it and the more they prize it. It
is really the poor, starved and mindless millions who need the court’s protection for securing
to themselves the enjoyment of Human Rights[2]. The Constitution precedents cannot be
permitted to be transformed into weapons for defeating the hopes and aspirations of our
teaming millions, half-clad, half-starved, half-educated. These hopes and aspirations
representing the will of the people can only become articulate through the voice of their
elected representatives. If they fail the people, the nation must face the death and
destruction[3]. Then, neither the court nor the Constitution will save the country [4]. The
Constitution, unlike other Acts, is intended to provide an enduring paramount law and a basic
design of the structure and power of the State and rights and duties of the citizens to serve the
society through a long lapse of ages. It is not only designed to meet the needs of the day when
it is enacted but also the needs of the altering conditions of the future. It contains a
framework of mechanism for resolution of constitutional disputes. It also embeds its ideals of
establishing an egalitarian social order to accord socio-economic and political justice to all
sections of the society assuring dignity of person and to integrate a united social order
assuring every citizen fundamental rights assured in part III and the directives in part IV of
the Constitution. In the interpretation of the Constitution, words of width are both a
framework of concepts and means to achieve the goals in the preamble. Concepts may keep
changing to expand and elongate the rights. Constitutional issues are not solved by mere
appeal to the meaning of the words without an acceptance of the line of their growth. The
intention of the Constitution is, rather, to outline principles than to engrave details. Thus, law
should sub serve social purpose. Judge must be a jurist endowed with the legislator's wisdom,
historian's search for truth, prophet’s vision, and capacity to respond to the needs of the
present, resilience to cope with the demands of the future and to decide objectively
disengaging himself/herself from every personal influence or predilections. Therefore, the
judges should adopt purposive interpretation of the dynamic concepts of the Constitution and
the Act with its interpretative armoury to articulate the felt necessities of the time. The judge
must also bear in mind that social legislation is not a document for fastidious dialects but a
means of ordering the life of the people. To construe law one must enter into its spirit, its
setting and history. Law should be capable of expanding freedoms of the people and the legal
order can, weighed with utmost equal care, be made to provide the underpinning of the highly
inequitable social order[5]. In this background we will discuss the “need” of amending the
Information Technology Act, 2000(Act).

II. The need of change

The Act has been enacted “primarily” to deal with e-governance and e-commerce.
The “legislature” was, however, cautious and wise enough to incorporate provisions dealing
with “contraventions” and “offences” using the information technology. A “Constitutionally
ideal amendment initiative” must consider the following aspects:

(a) Nature of amendment: The concept of “indepth review” suggests that the present Act is
“improper” rather than “imperfect”. The stress seems to be on “complete change’ rather than
“necessary minor modifications”. This is a wrong strategy that has unfortunately been
adopted by the government.

(b) Need of amendment: The need of amendment is not based on “germane reasons” but is
primarily guided by the recent “MMS controversy”. The law is meant for the “People of
India” and not for any particular “segment”. The most embarrassing moment of the Indian
Legal System was not the “ arrest” of the CEO of the Bazee.com but the “interference of the
USA in the sovereign governance of India”. It must be noted that the managing of e-
commerce business requires certain safeguards to be followed by those who are deriving
benefits out of it. If these ‘minimum safeguards” are not followed than the law will take it
very seriously. The “rule of law” does not recognise any appeal of a “foreign country” or
“domestic pressures”. Thus, the amendment of the Act must be guided by germane reasons
only and it should not be based on irrelevant, arbitrary, unreasonable and extraneous
considerations.
(c) Areas of amendment: The law exists to serve the needs of the society, which is governed
by it. If the law is to play its allotted role of serving the needs of the society, it must reflect
the ideas and ideologies of that society. It must keep time with the heartbeats of the society
and with the needs and aspirations of the people. As the society changes, the law cannot
remain immutable. The early nineteenth century essayist and wit, Sydney Smith, said, ‘Then I
hear any man talk of an unalterable law, I am convinced that he is an unalterable fool." The
law must, therefore, in a changing society march in tune with the changed ideas and
ideologies[6]. At this stage the words of Justice Bhagwati in the case of National Textiles
Workers Union v P.R.Ramakrishnan[7] need to be set out. They are: “ We cannot allow the
dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must
change with the changing social concepts and values. If the bark that protects the tree fails to
grow and expand along with the tree, it will either choke the tree or if it is a living tree it will
shed that bark and grow a living bark for itself. Similarly, 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[8]. The Act require amendment to fill in the following
“grey area” on a priority basis:

(i) The “right to information” as flowing out of Article 19(1)(a) pf the Constitution,

(ii) The “right to know” as flowing out of Article 21 of the Constitution,

(iii) The “right to privacy” as flowing out of Article 21 of the Constitution,

(iv) The need of protecting the “electronic data property”. The “paper based data property”
can be sufficiently protected by the Indian Copyright Act, 1957,

(v) The need of providing a “sound e-governance base” that should include effective e-justice
administration facilities[9],

(vi) The need for providing a more stronger e-commerce base,

(vii) The need to strengthen the “Internet Banking” infrastructure,

(viii) The need to strengthen the “ Cyber Insurance Business infrastructure”,

(ix) The need to protect people of India from “Cyber Terrorism” in India[10],

(x) The need of adoption of the “techniques of aggressive defence” in India[11], etc.

These are the issues that need an immediate attention of the “legislature” and not
other “self serving changes” which will leave the Act more vulnerable to
“unconstitutionality”.

(d) Place of amendment: One of the thriving needs of change is in the field of “cyber
forensic”. The Act, however, is not the right “place” to make the change. In India we have
both “substantive” and “procedural” laws. The Indian Penal Code and Information
Technology Act are “substantive laws” whereas the Indian Evidence Act and Criminal
Procedure Code are “procedural laws”. Thus, the inter-mingling of procedural laws into
substantive laws is not a desirable exercise. This mandates the amendment of the “Evidence
Act” rather the “Information Technology Act”.

(e) Ancillary matters: The ancillary matters like “cyber-café regulations”, “blocking of
web-sites”, etc are not the fit subject for “amendment”. As far as the regulation of the cyber-
café is concerned, the respective “State Governments” can do so through “notification
method”. Similarly, the authority for the blocking of web sites has already been constituted
under the provisions of the Act; hence duplicating the efforts and wasting the valuable
resources will serve no useful purpose.

If these areas are “ignored” either in the zeal of amendment process or due to pressure
tactics, then the law in this regard would be a “remedy worst than the malady” hence its
amendment should not be undertaken at any cost. If such an amendment were proceeded
with, then it would definitely be tested on the touchstone of the provisions of Constitution of
India and will not survive the test of “constitutionality”.

III. Alternative strategy

The cumbersome, time consuming and expensive process can be avoided by issuing “simple
notifications” by the government that will clear the mist surrounding the present atmosphere.
Similarly, since the matter is before the court the same can also be taken care by the courts in
India. Legislatures are not best fitted for the role of adapting the law to the necessities of the
time, for the legislative process is too slow and the legislatures often divided by politics,
slowed down by periodic elections and overburdened with myriad other legislative activities.
This task must, therefore, of necessity fall upon the courts because the courts can by the
process of judicial interpretation adapt the law to suit the needs of the society [12]. Thus, Courts
in India can provide a much better solution to this situation by adopting the “purposive and
updating modes of interpretation’ of the provisions of the Act. It is presumed that the
Parliament intends the court to apply to an ongoing Act a construction that continuously
updates its wordings to allow for changes since the Act was initially framed. While it remains
law, it has to be treated as always speaking. This means that in its application on any day, the
language of the Act though necessarily embedded in its own time, is nevertheless to be
construed in accordance with the need to treat it as a current law[13].

IV. Conclusion

The role model for governance and decision taken thereon should manifest equity, fair play
and justice. The cardinal principle of governance in a civilized society based on rule of law
not only has to base on transparency but also must create an impression that the decision-
making was motivated on the consideration of probity. The government has to rise above the
nexus of vested interests and nepotism and eschew window-dressing. The act of governance
has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious
actions. Therefore, the principle of governance has to be tested on the touchstone of justice,
equity and fair play. Though on the face of it the decision may look legitimate but as a matter
of fact the reasons may not be based on values but to achieve popular accolade, that decision
cannot be allowed to operate[14]. Any decision of the government ignoring these “mandates”
will be declared to be unconstitutional, no matter how much pressure is put on it.
© Praveen Dalal. All rights reserved with the author.

* Consultant and Advocate, Delhi High Court

Contact at: pd37@rediffmail.com / perry4law@yahoo.com

[1]
State of M.P v G.Singh, AIR 2003 SC 3191.

[2] Justice Dwivedi in Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225.

[3] Justice Chandrachud in Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225.

[4] Praveen Dalal: “ Sociology of Public Interest Litigation in India”, (Under publication).

[5] State of Karnataka v Appa Balu, (1995) Supp. 4 SCC 469

[6] Central Inland Water Transport Corporation Ltd v Brojo Nath Ganguly, AIR 1986 SC
1571.

[7] (1983) 1 SCC 228.

[8] Praveen Dalal; “ Judicial review: Nuisance or absolute necessity”, (Under publication).

[9] Praveen Dalal; “ A sound BPO platform”, www.naavi.org, dated: 02-01-05.

[10] Praveen Dalal; “ Cyber terrorism in India”, www.naavi.org, dated 25-10-04.

[11] Praveen Dalal; “Preventing violations by aggressive defence”, (Under publication).

[12] Central Inland Water Transport Corporation Ltd v Brojo Nath Ganguly, AIR 1986 SC
1571.

[13] State of Maharashtra v Dr Praful. B. Desai, (2003) 4 SCC 601.

[14] Onkarlal Bajaj v U.O.I, AIR 2003 SC 2562.

Law as an Instrument of Social Changes

333 days ago 2 comments Categories: Constitution Tags: Law, Instrument, Social Changes,
Social Science, Society, Article 44, Indian Constitution, Uniform Civil Code,
Supreme Court

Law is a form of Social Science. Society and law are closely related to each other. Law tells
the nature to live the social life and this also increases with the Economic, Scientific and
Technological progress. Law also changes with Social Changes and plays an important role in
the fulfillment of Social Needs, so for the fulfillment of social need, there is a provision by
constitutional amendment and this is the responsibility of judiciary that law which violates
the constitutional provisions, public interests and fundamental rights should be declared void.
Legal reforms have been at the centre of the agenda for strategizing gender justice in
India.Uniform Civil Code is merged in the Article- 44 by Indian Constitution as a results of
social change. It signifies a uniform code of conduct without cast, religion, parentage,
community and cultural recognition for all citizens of country and also Artical-21 ‘Protection
of life and personal liberty’ as a results of social change. In this article new prison
jurisprudence right to Speedy Trial, Right to Free Legal Service, Right to Human Dignity,
Right Against Torture have been made some of the components of the fundamental rights.
Law is a medium through which social objects can be achieved. So, change of law is must
with social changes, otherwise law will be of no value.

Law is rooted in social institutions, in socio-economic network. These social factors influence
the course of law or the direction of legal change. This is the outcome of personal and social
interactions which are variable and often unpredictable. At the same time, law may itself
change norms in various way. For example, in free India, legal abolition of untouchability is
an attempt to change a long-standing social norm. Yet it has not succeeded much due to
inadequate social support. Thus there is a reciprocal relationship between law and society.
The term ‘social change’ is also used to indicate the changes that take place in human
interactions and inter-relations. Society is a ‘web-relationship’ and social change obviously
means a change in the system of social relationship where a social relationship is understood
terms of social processes and social interactions and social organizations. Thus, the term,
‘social change’ is used to indicate desirable variations in social institution, social processes
and social organization. It includes alterations in the structure and the functions of the society.
Closer analysis of the role of law vis-à-vis social change leads us to distinguish between the
direct and the indirect aspects of the role of law.

1. Law plays an important indirect role in regard to social change by shaping have a direct
impact on society. For example: A law setting up a compulsory educational system.

2. On the other hand, law interacts in many cases indirectly with basic social institutions in a
manner constituting a direct relationship between law and social change. For example: A law
designed to prohibit polygamy.

Law plays an agent of modernization and social change. It is also as and indicator of the
nature of societal complexity and its attendant problems of integration. Further, the
reinforcement of our belief in the age old panchayat system, the abolition of the abhorables
practices of untouchability, child marriage, sati dowry, etc are typical illustrations of social
change being brought about in the country trough law5.

Law is an effective medium or agency, instrumental in bringing about social change in the
country or in any region in particular. Therefore, we rejuvenate our belief that law has been
pivotal in introducing changes in the societal structure and relationships and continues to be
so. As of today, the decisions of the Court are not just being tested on the touch stone of
social justice, but indeed they are being cited of as precursors to ‘social rights’. The Court has
pro-actively and vigorously taken up to cause of social justice and has gone to the extent of
articulating newer social rights such as the right to food, right to health, right to education
Thus, the march of law is clearly in favour of Supreme Court having performed a pro-active
role in social change of the languishing masses. It certainly has acted as a catalyst in the
process of social transformation of people wherein the dilution of caste inequalities,
protective measures for the weak and vulnerable sections, providing for the dignified
existence of those living under unwholesome conditions, etc, are the illustrious examples in
this regards. Social change involves an alteration of society; its economic structure, values
and beliefs, and its economic, political and social dimensions also undergo modification.
However, social change does not affect all aspects of society in the same manner.

While much of social change is brought about by material changes such as technology, new
patterns of production, etc, other conditions are also necessary. For example, like we have
discussed it before, legal prohibition of untouchability in free India has not succeeded
because of inadequate social support. Nonetheless, when law cannot bring about change
without social support, it still can create certain preconditions for social change. Moreover,
after independence, the Constitution of India provided far-reaching guidelines for change. Its
directive principle suggested a blue-print for a new nation. The derecognizing of caste-
system, equality before the law, and equal opportunities for all in economic, political and
social spheres were some of the high points of the Indian Constitution. Some areas where law
has given the influence for social change are:
1. Area of agrarian reform policy and legislation;

2. Area of implementation of untouchability abolition law;

3. The normative aspects of employment and educational reservation for the scheduled castes
and scheduled tribes under the Constitution;

4. The allied field of abolition of bonded labour;

5. The problem of substantive impact of changes in the family law marriage, equal rights of
women to inheritance and dowry
For purposes of constitutional competence, these actions are characterized as those coming
under the writ jurisdiction of the Supreme Court of India under Article 32 of our Constitution
and the various High Courts, under Article 226. The traditional extent of writ jurisdiction was
of course a colonial inheritance from the British-era and the remedies that could be invoked
were those of habeas corpus, quo warranto, mandamus, prohibition and certiorari. However,
the Indian Courts have pushed the boundaries of constitutional remedies by evolving the
concept of a ‘continuing mandamus’ which involves the passing of regular directions and the
monitoring of their implementation by executive agencies. In addition to designing remedies
for ensuring that their orders are complied with, the Courts have also resorted to private law
remedies such as injunctions and ‘stay’ orders in Public Interest Litigation (PIL) matters. The
Supreme Court of India has been able to shape appropriate remedies for a variety of
situations on account of the wide discretionary powers for granting constitutional remedies
that have been conferred on it as per the language of Article 32 of the Constitution.
Furthermore, under Article 141 of the Constitution of India, the Supreme Court’s rulings are
considered to be the ‘law of the land’ and become binding precedents for all courts and
tribunals in the country’s legal system. Hence, the Supreme Court’s decisions in Public
Interest Litigation (PIL) matters have progressively shaped a unique jurisprudence that gives
due weight age to the interests of the underprivileged and backward sections in society. A
significant consequence of this is that creative remedies designed for particular fact-situations
come to be widely reported to by Courts all over the country. In this way, the rulings given in
PIL cases create an active judicial dialogue within the whole legal system.

Bihar Legal Support Society v. The Chief Justice of India & Ors:
“The majority of the people of our country are subjected to this denial of ‘access to justice’
and overtaken by despair and helplessness, they continue to remain victims of an exploitative
society where economic power is concentrated in the hands of a few and it is used for
perpetuation of domination over large masses of human beings…… The strategy of public
interest litigation has been evolved by this Court with a view to bringing justice within the
easy reach of the easy reach of the poor and disadvantaged sections of the community.”

Keshavananda Bharati v. State of Kerala.

By a narrow majority of 7-6 it was ruled that Parliament’s power of amendment was not
absolute and it could not amend the ‘Basic structure’ of the Constitution, which in the opinion
of the judges consisted of elements such as democracy, rule of law, secularism, separation of
powers and judicial review.9 The said decision did not curry favour with the Indira Gandhi-
led government of the day and three of the judges who ruled for the majority were superseded
in the matter of appointment to the position of Chief Justice of India in 1973. Nevertheless,
the decision had given a clear signal in defense of judicial independence.

People’s Union for Civil Liberties v. Union of India,

where the Court sought to ensure compliance with the policy of supplying mid-day meals in
government-run primary schools. The mid-day meal scheme had been launched with much
fanfare a few years ago with the multiple objectives of encouraging the enrolment of children
from low-income backgrounds in schools and also ensuring that they received adequate
nutrition. However, there had been widespread reports of problems in the implementation of
this scheme such as the pilferage of foodgrains. As a response to the same, the Supreme Court
issued orders to the concerned governmental authorities in all States and Union Territories,
while giving elaborate directions about the proper publicity and implementation of the said
scheme.

Conclusion
Law is a system of rules and guidelines which are enforced through social institutions to
govern behavior, wherever possible. It shapes politics, economics and society in numerous
ways and serves as a social mediator of relations between people. Contract law regulates
everything from buying a bus ticket to trading on derivatives markets. Property law defines
rights and obligations related to the transfer and title of personal and real property. Trust law
applies to assets held for investment and financial security, while tort law allows claims for
compensation if a person's rights or property are harmed. If the harm is criminalized in
legislation, criminal law offers means by which the state can prosecute the perpetrator.
Constitutional law provides a framework for the creation of law, the protection of human
rights and the election of political representatives. Administrative law is used to review the
decisions of government agencies, while international law governs affairs between sovereign
states in activities ranging from trade to environmental regulation or military action. The
legal response to a given social or technological problem is therefore in itself a major social
action which may aggravate a given problem or alleviate and help to solve it.

Reference
# Korotayev, Andrey (2004). World Religions and Social Evolution of the Old World
Oikumene Civilizations: A Cross-cultural Perspective (First ed.). Lewiston, New York: Edwin
Mellen Press. ISBN 0-7734-6310-0. p. no1-8.
# “Family Law And Religion -The Indian Experience” 10 Feb. 2009 p. no 1-23.
# New York University Review of Law and Social Change, 13, 1-50.
# Law & Society Review, 1977 p. no. 571 – 588.
# Freiberg, P. (1991, January). The guru of prevention calls for social change. APA Monitor,
pp. 28-29.
# West Roman Empire in the 4th and 5th cent. and lasted into the 15th cent., i.e., into the
period of the Renaissance. The ideas and institutions of western civilization derive largely
from the turbulent events of the Early Middle Ages and the rebirth of culture in the later
years.
# timeline after the middle Ages. Modern history can be further broken down into the early
modern period and the late modern period. Contemporary history describes the span of
historic events that are immediately relevant to the present time.

# Liberty and Social Relatives”, 1979 p. no. 85-104.

# Northern Rhodesia”, 1959 p. no. 318-319
*******************************
Lecturer in Law, Nandini Nagar Vidhi Mahavidyalaya Nawabganj, Gonda (U.P)
. AIR 1987 SC 38.
. (1973) 4 SCC 225 .
. (2007) 1 SCC 728.

Table of Contents Banking Regulation & Compilance and Legal Aspects

RBI's Constitution and Objectives

Banking Regulation Act, 1949

Reserve Bank of India Act, 1934

Credit Information Bureau (India)

Banker-Customer Relationship

Payment and Collection of Cheques and Other Negotiable Instruments

Documentation

Different modes of Charging Securities

Types of Collaterals and their Characteristics

Foreign Exchange Management Act, 1999

 The Prevention of Money Laundering Act, 2002

Banking Regulated Important Laws

Limitation Act, 1993

Banker's Books Evidence Act, 1891

The Recovery of Debts due to Banks and Financial Institutions (DRT) Act, 1993

Securitisation and Reconstruction of Financial Assets and Enforcement of Security

Interest (SARFAESI) Act, 2002

Central Resistry

Offences and Penalties

Miscellaneous Provisions

Consumer Protection Act, 1986

The Banking Ombudsman Scheme, 2006

Procedure for Redressal of Grievance

Lok Adalats

Part III: Commercial Laws with Reference to Banking Operation

Contracts of Guarantee

Contracts of Bailment

Contracts of Pledge

Contracts of Agency

Meaning and Essentials of a Contract of Sale

Conditions and Warranties

Unpaid Seller

Definition, Meaning and Nature of Partnership

Relations of Partners to one another

Relations of Partners to Third Parties

Minor Admitted to the benefits of Partnership

 Dissolution of a Firm

Effects of Non-Registration

Definition and Features of Company

Types of Companies

Memorandum of Association and Articles of Association

Doctrines of Ultra/Constructive Notice/Indoor Management

Prospectus

Transfer of Property Act, 1882

The Right to Information Act, 2005

Right to Information and Obligation of Public Authorities

Information Technology Act, 2000

The power of Judiciary to review and determine validity of a law or an order may be
described as the power of "Judicial Review."

It means that the constitution is the Supreme law of the land and any law in consistent there
with is void. The term refers to "the power of a court to inquire whether a law executive
order or other official action conflicts with the written constitution and if the court
concludes that it does, to declare it unconstitutional and void."

Judicial Review has two prime functions:

(1) Legitimizing government action; and (2) to protect the constitution against any undue
encroachment by the government.

The most distinctive feature of the work of United States Supreme Court is its power of
judicial review. As guardian of the constitution, the Supreme Court has to review the laws
and executive orders to ensure that they do not violate the constitution of the country and
the valid laws passed by the congress.

The power of judicial review was first acquired by the Supreme Court in Marbury vs.
Madison case. 1803.

The constitution of India, in this respect, is more a kin to the U.S. Constitution than the
British. In Britain, the doctrine of parliamentary supremacy still holds goods. No court of law
there can declare a parliamentary enactment invalid. On the contrary every court is
constrained to enforce every provision" of the law of parliament.

Under the constitution of India parliament is not Supreme. Its powers are limited in the two
ways. First, there is the division of powers between the union and the states. Parliament is
competent to pass laws only with respect to those subjects which are guaranteed to the
citizens against every form of legislative encroachment.

Being the guardian Fundamental Rights and the arbiter of-constitutional conflicts between
the union and the states with respect to the division of powers between them, the Supreme
Court stands in a unique position where from it is competent to exercise the power of
reviewing legislative enactments both of parliament and the state legislatures.

This is what makes the court a powerful instrument of judicial review under the constitution.
As Dr. M.P. Jain has rightly observed: "The doctrine of judicial review is thus firmly rooted in
India, and has the explicit sanction of the constitution."

In the framework of a constitution which guarantees individual Fundamental Rights, divides

power between the union and the states and clearly defines and delimits the powers and
functions of every organ of the stat^ including the parliament, judiciary plays a very
important role under their powers of judicial review.

The power of judicial review of legislation is given to the judiciary both by the political
theory and text of the constitution. There are several specific provisions in the Indian
constitution, judicial review of legislation such as Act 13, 32, 131-136, 143, 226, 145, 246,
251, 254 and 372.

Article 372 (1) establishes the judicial review of the pre-constitutional legislation similarly.
Article 13 specifically declares that any law which contravenes any of the provision of the
part of Fundamental Rights shall be void. Even our Supreme Court has observed, even
without the specific provisions in Article 13.

The court would have the power to declare any enactment which transgresses a
Fundamental Right as invalid. The Supreme and high courts are constituted the protector
and guarantor of Fundamental Rights under Articles 32 and 226. Articles 251 and 254 say
that in case of in consistent if between union and state laws, the state law shall be void.

The basic function of the courts is to adjudicate disputed between individuals and the state,
between the states and the union and while so adjudicating, the courts may be required to
interpret the provisions of the constitution and the laws, and the interpretation given by the
Supreme Court becomes the law honoured by all courts of the land. There is no appeal
against the judgement of the Supreme Court.

In Shankari Prasad vs. Union of India (1951) the first Amendment Act of 1951 was challenged
before the Supreme Court on the ground that the said Act abridged the right to property
and that it could not be done as there was a restriction on the amendment of Fundamental
Rights under Article 13 (2).

The Supreme Court rejected the contention and unanimously held. "The terms of Article 368
are perfectly general and empower parliament to amend the constitution without any
exception whatever.

In the context of Article 13 law must be taken to mean rules or regulations made in exercise
of ordinary legislative power and amendments to the constitution made in exercise of
constituent power, with the result that Article 13 (2) does not affect amendments made
under Article 368."

In Sajan Singh's case (1964), the corupetence of parliament to enact 17th amendment was
challenged before the constitution. Bench comprising of five judges on the ground that it
violated the Fundamental Rights under Article 31 (A).

Supreme court reiterated its earlier stand taken in Shankari sad's case and held, "when
article 368 confers on parliament the right to amend the constitution the power in question
can be exercised over all the provisions of the constitution, it would be unreason about to
hold that the word law' in article 13 (2) takes in amendment Acts passed under article 368.

Thus, until 1967 the Supreme Court held that the Amendment Acts were not ordinary laws,
and could not be struck down by the application of article 13 (2).

The historic case of Golak Nath vs. The state of Punjab (1967) was heard by a special bench
of 11 judges as the validity of three constitutional amendments (1st, 4th and 17th) was
challenged.

The Supreme Court by a majority of 6 to 5 reversed its earlier decision and declared that
parliament under article 368 has no power to take away or abridge the Fundamental Rights
contained in chapter II of the constitution the court observed.

(1) Article 368 only provides a procedure to be followed regarding amendment of the
constitution.

(2) Article 368 does not contain the actual power to amend the constitution.

(3) The power to amend the constitution is derived from Article 245, 246 and 248 and entry
97 of the union list.

(4) The expression 'law' as defined in Article 13 (3) includes not only the law made by the
parliament in exercise of its ordinary legislative power but also an amendment of the
constitution made in exercise of its constitution power. ,
(5) The amendment of the constitution being a law within the meaning of Article 13 (3)
would be void under Article 13 (2) of it takes away or abridges the rights conferred by part III
of the constitution.

(6) The First Amendment Act 1951, the fourth Amendment Act 1955 and the seventeenth
Amendment Act. 1964 abridge the scope of Fundamental Rights and, therefore, void under
Article 13 (2) of the constitution.

(7) Parliament will have no power from the days of the decision to amend any of the
provisions of part III of the constitution so as to take away or abridge the Fundamental
Rights enshrined there in.

The constitutional validity of the 14th, 25th, and 29th Amendments was challenged in the
Fundamental Rights case. The Govt. of India claimed that it had the right as a matter of law
to change or destroy the entire fabric of the constitution through the instrumentality of
parliament's amending power.

In Minerva Mills case (1980) the Supreme Court by A majority decision has trunk down
section 4 of the 42nd Amendment Act which gave preponderance to the Directive Principles
over Articles 24, 19 and 31 of part III of the constitution, on the ground that part III and part
IV of the constitution are equally important and absolute primacy of one over the other is
not permissible as that would disturb the harmony of the constitution.

The Supreme Court was convinced that anything that destroys the balance between the two
part will ipsoTacto destroy an essential element of the basic structure of our constitution.

Judicial Review of Legislative Enactment and ordinances:

One of the first major case A.K. Gopalan Vs. State of Madras. 1951 that came up before the
Supreme Court in which the preventive Intention Act, 1950 was challenged as invalid.

The court by a unanimous decision declared section 14 of the Act invalid and thus
manifested its competence to declare void any parliamentary enactment repugnant to the
provisions of the constitution.

In Champakan Dorairajan's case, the Supreme Court held that the order of the state
government fixing proportionate scales, for different communities for admission to medical
colleges was unconstitutional.

The presidential order de-recognising privy purses was also challenged in the Supreme Court
which declared the order as unconstitutional and void. Between 1950-1980 parliament
passed as many as 1977 Acts and out of them, the Supreme Court invalidate laws passed on
22 occasions.

Principles of Judicial Review:

Justice VS Deshpande in his book propounded a thesis that Judicial Review of legislation in
India should rest merely on Article 245 (1) and not on Article 13. According to him, Article
245 (1) interpreted broadly would ensure the supremacy of the constitution over all kinds of
laws.

Thus, a law to be valid must conform with the constitutional forms. The grave responsibility
of deciding upon the validity of laws, is laid up on the judges of the Supreme Court. If a
statue isn't within the scope of legislative authority or it offends some constitutional
restriction or prohibition, that statue is unconstitutional and hence invalid.

The Statue is not held unconstitutional by the court in a light vein. Both the 'felt necessities
of the time' and 'constitutional fundamentals' are balanced by the court. Accordingly, the
Supreme Court has evolved certain canons, making and norms. H.M. Leervai has
enumerated following rules in this regard.

(1) There is a presumption in favour of constitutionality, and a law will not be declared
unconstitutional unless the case is so clear as to be free from doubt; and the on us to prove
that it is unconstitutional lies upon the person who challenges it.

(2) Where the validity of a statue is questioned and there are two interpretations, one of
which would make the law valid, and the other void, the former must be preferred and the
validity of the law upheld.

(3) The court will not decide constitutional questions of a case is capable of being decided
on other grounds.

(4) The court will not decide a larger constitutional question than is required by the case
before it.

(5) The court will not hear an objection as to the constitutionality of a law by a person
whose rights are not affected by it.

(6) Ordinarily, courts should not pronounce on the validity of an Act or part of an Act, which
has not been brought into force, because till then the question of validity would be merely
academic.

Indian judiciary has been able to overcome the restrictions that were put on it by the 42nd
amendment, with the help of the 43rd and 44th amendments.

Now the redeeming quality of Indian judiciary is that no future governments could did its
wings or dilute its right of Judicial Review. In fact, now the 'Judicial Review' is considered to
be the basic feature of out constitution.
Judicial activism is gaining prominence in the present days. In the form of Public Interest
Litigation (PIL), citizens are getting access to justice.

Judiciary has become the centre of controversy, in the recent past, on account of the sudden
(Me in the level of judicial intervention. The area of judicial intervention has been steadily
expanding through the device of public interest litigation.

The judiciary has shed its pro-status-quo approach and taken upon itself the duty to enforce
the basic rights of the poor and vulnerable sections of society, by progressive interpretation
and positive action.

The Supreme Court has developed new methods of dispensing justice to the masses through
the public interest litigation. Former Chief Justice PN. Bhagwat, under whose leadership
public interest litigation attained a new dimension comments that "the supreme court has
developed several new commitments.

It has carried forward participative justice. It has laid just standards of procedure. It has
made justice more accessible to citizens".

The term 'judicial activism' is intended to refer to, and cover, the action of the court in excess
of, and beyond the power of judicial review. From one angle it is said to be an act in excess
of, or without, jurisdiction. The Constitution does not confer any authority or jurisdiction for
'activism' as such on the Court.

Judicial activism refers to the interference of the judiciary in the legislative and executive
fields. It mainly occurs due to the non-activity of the other organs of the government.

Judicial activism is a way through which relief is provided to the disadvantaged and
aggrieved citizens. Judicial activism is providing a base for policy making in competition with
the legislature and executive. Judicial activism is the rendering of decisions, which are in
tune with the temper and tempo of the times.

In short, judicial activism means that instead of judicial restraint, the Supreme Court and
other lower courts become activists and compel the authority to act and sometimes also
direct the government regarding policies and also matters of administration.

Judicial activism has arisen mainly due to the failure of the executive and legislatures to act.
Secondly, it has arisen also due to the fact that there is a doubt that the legislature and
executive have failed to deliver the goods. Thirdly, it occurs because the entire system has
been plagued by ineffectiveness and inactiveness.

The violation of basic human rights has also led to judicial activism. Finally, due to the
misuse and abuse of some of the provisions of the Constitution, judicial activism has gained
significance.

Besides the above mentioned factors, there are some other situations that lead to judicial
activism. These are:

(i) When the legislature fails to discharge its responsibilities.

(ii) In case of a hung parliament where the government is very weak and instable.

(iii) When the governments fail to protect the basic rights of the citizens or provide an
honest, efficient and just system of law and administration,

(iv) When the party in power misuses the courts of law for ulterior motives as was done
during the Emergency period, and

(v) Finally, the court may on its own try to expand its jurisdiction and confer on themselves
more functions and powers.

Areas of Judicial Activism

During the past decade, many instances of judicial activism have gained prominence. The
areas in which judiciary has become active are health, child labour, political corruption,
environment, education, etc.
Through various cases relating to Bandhua Mukti Morcha, Bihar Under trials, Punjab Police,
Bombay Pavement Dwellers, Bihar Care Home cases, the judiciary has shown its firm
commitment to participatory justice, just standards of procedures, immediate access to
justice, and preventing arbitrary state action.

Public Interest Litigation: An Innovative Step towards Judicial Activism

Public interest litigation means a suit filed in a court of law for the protection of public
interest such as pollution, terrorism, road safety etc. Judicial activism in India acquired
importance due to public interest litigation. It is not defined in any statute or act.

It has been interpreted by judges to consider the intent of public at large. The court has to
be satisfied that the person who has resorted to PIL has sufficient interest in the matter.

In India, PIL initially was resorted to towards improving the lot of the disadvantaged sections
of the society who due to poverty and ignorance were not in a position to seek justice from
the courts. After the Constitution (Twenty Fifth Amendment Act, 1971), primacy was given
to Directive Principles of State Policy by making them enforceable. The courts to improve
administration by taking up PIL cases, for ensuring compliance constitutional provisions has
also increased.

PIL is filed for a variety of cases such as maintenance of ecological balance, making
municipal authorities comply with statutory obligations of provision of civic amenities,
violation of fundamental rights etc. It has provided an opportunity to citizens, social groups,
consumer rights activists etc., easier access to law and introduced a public interest
perspective. Justices P.N. Bhagwati and V.R. Krishna Ayer have played a key role in promoting
this avenue of approaching the apex court of the country, seeking legal remedies in areas
where public interests are at stake.

PIL has been considered a boon, as it is an inexpensive legal remedy due to nominal costs
involved in filing the litigation. But there are some problems also in the PIL cases.

There has been an increase in the number of frivolous cases being filed due to low court
fees. Genuine cases got receded to the background and privately motivated interests started
gaining predominance in PIL cases. In view of this, the Supreme Court has framed certain
guidelines governing the PIL.

Presently the court entertains only writ petitions filled by an aggrieved person or public
spirited individual or a social action group for enforcement of the constitutional or the legal
rights of a person in custody or of a class of persons who due to reasons of poverty,
disability, socially or economically disadvantaged position are finding it difficult to approach
the court for redress.

PIL is an extraordinary remedy available at a cheaper cost. As Justice Bhagwati observed in

the case of Asiad workers case, 'now for the first time the portals of the court are being
thrown open to the poor and the downtrodden. The courts must shed their character as
upholders of the established order and the status quo. The time has come now when the
courts must become the courts for the poor and the struggling masses of this country'.

The administration of justice is the vital task of judiciary. Justice which is the soul of the state
must be administered without fear or favor. Hence judiciary should remain as far as possible
outside politics. In interpreting laws and administering justice the judges must be impartial
and honest. The vital need is to organize the judiciary properly. The appointment and tenure
of the judges, their relation to other agencies of government— these and other similar
considerations are important in maintaining the independence and integrity of the judiciary.

1) Organization of Judiciary :

The degree of independence enjoyed by the judiciary is largely dependent on the mode of
its organization. In the modern states the judiciary may be organized in three different ways:
(1) it may be elected by the legislature; (2) It may be elected by the people; or (3) it may be
appointed by the executive.

The system of election exists in many of the states in the USA. One of the defects of this
system is incapable judges may be elected who function according to the wishes of the
people. Election by the legislature is somewhat better though the process is not free form
the influence of party politics, and the judiciary may function under the control of the
legislature. The system of appointment by executive has been found by practice to be
satisfactory. The executive is a better judge of the merits and suitability of those appointed
than that of the legislature or the people but once appointed the judges should remain
outside the influence of the executive. This system has been adopted in most of the states.

2. Tenure :

The security of tenure is essential for the independence of the judiciary, though the opinions
and practices widely differ. In most of the American states the judges hold office for limited
terms. The federal judges in the United States, however, hold office during good behavior
although the Indian constitution does not provide for any tenure the existing provision
provides for a long tenure. Long tenure enables judges to gather experience and to dispense
justice without fear or favour.

3. Method of Removal :

The judges should not be removed on filmy grounds or by the whims and caprices of either
the executive or the legislature. They should continue in office during good behavior. It
means in Great Britain that the judges shall be removed by the crown except upon an
address of both houses of parliament. In the United States the usual practice is to remove
the judges through impeachment. In India a judge of the Supreme Court or a High Court can
be removed only on the ground of proved misbehavior or incapacity.

In order to ensure independence it is also necessary that the judges should not practice after
retirement. Any judge who practices law after retirement may not remain quite fair in the
discharge of his duties while in service. In India the judges of Supreme Court are not allowed
to practice after retirement as it hampers the independence of judiciary.

4. Salary:

Properly qualified and efficient persons will not be attracted to the judiciary unless the
salary is attractive. Adequate remuneration keeps judges above corruption. Salary, allowance
and retirement benefits ought to be lucrative for the independence of judiciary.

5. Qualification :

The nature of Judicial function requires technical competence hence the judges should have
requisite qualifications. The usual practice is that almost all the countries are to appoint
judges from among the distinguished member of the legal profession. In India for instance,
the Constitution provides that to be a judge of the Supreme Court a person must have been
a judge of the High Court for at least five years standing or the person concerned is, in the
opinion of the president, a distinguished jurist.

6. Separation of the Judiciary from the executive:

Judiciary should be free from the influence of the executive so that justice can be provided
to the aggrieved parties. Executive should not interfere or exercise control over the working
of courts.
ATIN KUMAR DAS LL.M Ist YEAR.NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL

INTRODUCTION

The framers of the Indian Constitution at the time of framing of our constitution were
concerned about the kind of judiciary our country should have. This concern of the members
of the constituent assembly was responded by Dr. B.R. Ambedkar in the following words:

“There can be no difference of opinion in the House that our judiciary must be both
independent of the executive and must also be competent in itself. And the question is
how these two objects can be secured“.

The question that arises at first instance in our minds is that what made the framers of our
constitution to be so much concerned about providing the separate entity to the judiciary
and making it self competent.

The answer to this question lies in the very basic understanding that so as to secure the
stability and prosperity of the society, the framers at that time understood that such a
society could be created only by guaranteeing the fundamental rights and the independence
of the judiciary to guard and enforce those fundamental rights. Also in a country like India,
the independence of the judiciary is of utmost importance in upholding the pillars of the
democratic system hence ensuring a free society.

It is a well-known fact that the independence of the judiciary is the basic requisite for
ensuring a free and fair society under the rule of law. Rule of law that is responsible for good
governance of the country can be secured through unbiased judiciary.

The doctrine of Separation of Powers which was brought into existence to draw upon the
boundaries for the functioning of all the three organs of the state: Legislature, Executive and
the Judiciary, provides for a responsibility to the judiciary to act as a watchdog and to check
whether the executive and the legislature are functioning within their limits under the
constitution and not interfering in each others functioning. This task given to the judiciary to
supervise the doctrine of separation of powers cannot be carried on in true spirit if the
judiciary is not independent in itself. An independent judiciary supports the base of doctrine
of separation of powers to a large extent.

It is theoretically very easy to talk about the independence of the judiciary as for which the
provisions are provided for in our constitution but these provisions introduced by the
framers of our constitution can only initiate towards the independence of the judiciary. The
major task lies in creating a favorable environment for the functioning of the judiciary in
which all the other state organs functions in cooperation so that the independence of the
judiciary can be achieved practically. The independence of the judiciary has also to be
guarded against the changing economic, political and social scenario.
Whenever there is a talk regarding the independence of the judiciary, there is also a talk of
the restrictions that must be imposed on the judiciary as an institution and on the individual
judges that forms a part of the judiciary. In order to ensure smooth functioning of the
system there must be a right blend of the two.

MEANING – THE INDEPENDENCE OF THE JUDICIARY

The meaning of the independence of the judiciary is still not clear after years of its existence.
Our constitution by the way of the provisions just talks of the independence of the judiciary
but it is no where defined what actually is the independence of the judiciary.

The primary talk on the independence of the judiciary is based on the doctrine of separation
of powers which holds its existence from several years. The doctrine of separation of powers
talks of the independence of the judiciary as an institution from the executive and the
legislature.

The other meaning of the judicial independence can be found out by looking at the writings
of the scholars who have researched on the topic. Scholars have followed the “constituent
mechanism” (i.e. what constitutes the judiciary) to define the independence of the judiciary.
Scholars try to define judiciary by talking about the independence of the judges which
constitutes judiciary. Therefore the independence of the judiciary is the independence of the
exercise of the functions by the judges in an unbiased manner i.e. free from any external
factor.

So the independence of the judiciary can be understood as the independence of the

institution of the judiciary and also the independence of the judges which forms a part of
the judiciary.

Shetreet in his work tries to explain the words “Independence” and “Judiciary” separately,
and says that the judiciary is “the organ of the government not forming a part of the
executive or the legislative, which is not subject to personal, substantive and collective
control, and which performs the primary function of adjudication”.

The final outcome that can be derived from Shetreet’s writings is that the independence of
the judiciary as an institution and the independence of the individual judges both have to go
hand in hand as the independence of the judiciary as an institution is not possible without
the independence of the individual judges and is the institution of the judiciary is not
independent, there is no question of the independence of the individual judges.

NEED FOR THE INDEPENDENCE OF THE JUDICIARY

The basic need for the independence of the judiciary rests upon the following points:

1. To check the functioning of the organs: Judiciary acts as a watchdog by ensuring that
all the organs of the state function within their respective areas and according to the
 provisions of the constitution. Judiciary acts as a guardian of the constitution and
also aids in securing the doctrine of separation of powers.

1. Interpreting the provisions of the constitution: It was well known to the framers of
the constitution that in future the ambiguity will arise with the provisions of the
constitution so they ensured that the judiciary must be independent and self-
competent to interpret the provision of the constitution in such a way to clear the
ambiguity but such an interpretation must be unbiased i.e. free from any pressure
from any organs like executive. If the judiciary is not independent, the other organs
may pressurize the judiciary to interpret the provision of the constitution according
to them. Judiciary is given the job to interpret the constitution according to the
constitutional philosophy and the constitutional norms.

1. Disputes referred to the judiciary: It is expected of the Judiciary to deliver judicial

justice and not partial or committed justice. By committed justice we mean to say
that when a judge emphasizes on a particular aspect while giving justice and not
considering all the aspects involved in a particular situation. Similarly judiciary must
act in an unbiased manner.

COMPONENTS – THE INDEPENDENCE OF THE JUDICIARY

The components of the independence of the judiciary as talked of here refers to some of the
requisite terms and conditions which are so necessary that if they are absent, the
independence of the judiciary also cannot exist.

It is very difficult to lay down certain set conditions as law is dynamic in itself and of the
changing economic, political and social scenario.

CONSTITUTIONAL PROVISIONS –

THE INDEPENDENCE OF THE JUDICIARY

Many provisions are provided in our constitution to ensure the independence of the
judiciary. The constitutional provisions are discussed below:

1. Security of Tenure:The judges of the Supreme Court and High Courts have been
given the security of the tenure. Once appointed, they continue to remain in office
till they reach the age of retirement which is 65 years in the case of judges of
Supreme Court (Art. 124(2)) and 62 years in the case of judges of the High Courts
(Art. 217(1)). They cannot be removed from the office except by an order of the
President and that too on the ground of proven misbehavior and incapacity. A
resolution has also to be accepted to that effect by a majority of total membership of
each House of Parliament and also by a majority of no less than two third of the
members of the house present and voting. Procedure is so complicated that there
 has been no case of the removal of a Judge of Supreme Court or High Court under
this provision.

1. Salaries and Allowances:The salaries and allowances of the judges is also a factor
which makes the judges independent as their salaries and allowances are fixed and
are not subject to a vote of the legislature. They are charged on the Consolidated
Fund of India in case of Supreme Court judges and the Consolidated Fund of state in
the case of High Court judges. Their emoluments cannot be altered to their
disadvantage (Art. 125(2)) except in the event of grave financial emergency.

1. Powers and Jurisdiction of Supreme Court: Parliament can only add to the powers
and jurisdiction of the Supreme Court but cannot curtail them. In the civil cases,
Parliament may change the pecuniary limit for the appeals to the Supreme Court.
Parliament may enhance the appellate jurisdiction of the Supreme Court. It may
confer the supplementary powers on the Supreme Court to enable it work more
effectively. It may confer power to issue directions, orders or writs for any purpose
other than those mentioned in Art. 32. Powers of the Supreme Court cannot be
taken away. Making judiciary independent.

1. No discussion on conduct of Judge in State Legislature / Parliament: Art. 211

provides that there shall be no discussion in the legislature of the state with respect
to the conduct of any judge of Supreme Court or of a High Court in the discharge of
his duties. A similar provision is made in Art. 121 which lays down that no discussion
shall take place in Parliament with respect to the conduct of the judge of Supreme
Court or High Court in the discharge of his duties except upon a motion for
presenting an address to the President praying for the removal of the judge.

1. Power to punish for contempt: Both the Supreme Court and the High Court have the
power to punish any person for their contempt. Art. 129 provides that the Supreme
Court shall have the power to punish for contempt of itself. Likewise, Art. 215 lays
down that every High Court shall have the power to punish for contempt of itself.

1. Separation of the Judiciary from the Executive: Art. 50 contains one of the Directive
Principles of State Policy and lays down that the state shall take steps to separate the
judiciary from the executive in the public services of the state. The object behind the
Directive Principle is to secure the independence of the judiciary from the executive.
Art. 50 says that there shall be a separate judicial service free from executive control.

CONCLUSION

The independence of the judiciary as is clear from the above discussion hold a prominent
position as far as the institution of judiciary is concerned. It is clear from the historical
overview that judicial independence has faced many obstacles in the past specially in
relation to the appointment and the transfer of judges. Courts have always tried to uphold
the independence of judiciary and have always said that the independence of the judiciary is
a basic feature of the Constitution. Courts have said so because the independence of
judiciary is the pre-requisite for the smooth functioning of the Constitution and for a
realization of a democratic society based on the rule of law. The interpretation in the Judges
Case giving primacy to the executive, as we have discussed has led to the appointment of at
least some Judges against the opinion of the Chief Justice of India. The decision of the
Judges Case was could never have been intended by the framers of the Constitution as they
always set the task of keeping judiciary free from executive and making it self-competent.
The decision of the Second Judges Case and the Third Judges Case is a praiseworthy step by
the Court in this regard.

There is a saying that “‘Power tends to corrupt, and absolute power corrupts absolutely”

- Lord Acton

Whenever there is a mention of the independence of the judiciary, there is always a concern
about the latent dangers of the judicial independence and there arises the importance of
“Judicial Accountability”. The recent development in this regard is the recommendation of
the Law Commission for the inclusion of a whistleblower provision, aimed at protecting
those making complaints against judges, in a draft bill dealing with the removal of judges of
the Supreme Court and High Courts. Introduction of such a bill by the Law Commission is a
major step in the direction of making changes to the rigid procedure in our constitution for
the removing of the judges of the Supreme Court and the High Courts.

The final outcome of the above discussion is that the importance of the independence of the
judiciary was long ago realized by the framers of the constitution which has been accepted
by the courts by marking it as the basic feature of the constitution. It is well known law has
to change so as to meet to the needs of the changing society. Similarly judicial independence
has to be seen with the changing dimension of the society. Judicial Accountability and
Judicial Independence have to work hand in hand to ensure the real purpose of setting up of
the institution of judiciary.