ROLE OF THE LEGISLATURE IN SOCIAL TRANSFORMATION

Submitted By: Parunjeet Singh Chawla Roll no: 77/09 UILS, Panjab University

Table of Contents
1. Evolution of legislature as a forum for social transformation 2. Safeguarding the essential constitutional features 3. Role in protection of human rights 4. Role in promotion of welfare 5. Role in maintaining national unity and multiculturalism 6. International policies and legislature 7. Bibliography 2 3 3 5 7 9 11

ROLE OF THE LEGISLATURE IN SOCIAL TRANSFORMATION

Evolution of legislature as a forum for social transformation Historically, legislatures in various parts of the world have acted as a forum for spearheading stupendous social changes. The contributions of British Parliament, the National Assembly of France and American Congress in protecting the society and state from executive tyranny and guaranteeing human rights and welfare have been enormous. In the Commonwealth and Communist countries, and in African and Asian countries, Legislature has donned the mantle of social transformation. Colonial India witnessed busy law-making function of Central and Provincial Legislatures. Codification of criminal and civil law systematized the legal system. Social transformation was aimed at by passing legislation prohibiting the practice of sati, female infanticide and child marriage; allowing widow remarriage; recognizing Hindu women's right to property and Muslim women's right to dissolve marriage; and introducing labour welfare measures. Earliest efforts of modernization were made in this period. The principles of English common law and statutes provided foundation for Indian statutes subject to adaptations into Indian conditions.1 Drafting of the Indian Constitution was the biggest task handled by the Constituent Assembly, which was a legislative body reset into its new role. Our Constitution, being a programmatic charter, requires extensive laws to activate the constitutional goals. This is the third stage of building the Constitution on the central principle of justice, the former two being people's consensus in original position and the work of the Constitutional Hall to convert the consensus into the Constitution.2 Since the Constitution is the heart and soul of the contemporary legal system, filling its gaps through subordinate level policy choices and effectuating its intention calls for Legislature's transformation performance.

1 M.C.

Setalvad, The Role of English Law in India (The Hebrew University Press, Jerusalem 1966) at p. 36; M.C. Mehta, The Common Law in India (N.M. Tripathi, Bombay 1970) at p. 123. 2 See, for analysis of four-stage making of a constitution John Rawls, A Theory of Justice (1972) at pp. 215-30; John Rawls, Political Liberalism (1993) at pp. 174-76; MDA Freeman, Lloyd's Introduction to Jurisprudence (7th Edn., Sweet & Maxwell, London 2001) at pp. 525-27, 577-81.

Safeguarding the essential constitutional features Legally, the ultimate upholder of the Constitution is judiciary, by virtue of the latter's power of judicial review. But the responsibility imposed upon Legislature to safeguard the constitutional values both in making constitutional amendments and laws is also clear from decisional law and constitutional provisions. Hence, safeguarding and effectuating the constitutional values and aspirations become the primary responsibilities of the Legislature also, just like executive has the responsibility to act in accordance with the Constitution and ensure compliance with every law. Judiciary's role to supervise compliance with the Constitution comes to play only subsequently when the legislative or executive acts are contested. The presumption in favour constitutionality of legislation is born out of this understanding, and out of reverence to the legislative will that emerged through democratic process. It is a notable fact that Parliament has amended the Constitution about 93 times in a span of 60 years', either necessitated by or in anticipation of social changes. Striking a fair balance between continuity and change is essential in adhering to the fundamental constitutional objectives in handling the amending power. Role in protection of human rights The Constitution of a country is the highest legal-political document for its government. It also embodies the statement of rights of the people as lawfully established. In a general sense it lays down the structure of power and obligations of the rulers towards the ruled. Such obligations imply not only the limit of the governmental power but also the expectation of the people from the government. A significant point about a Constitution is that it is future oriented, rather than past oriented. People who administer their affairs according to traditions and customs do not need a constitution. The memories of their elders are sufficient for them. Historically, whenever a constitution has been framed, it has followed a revolution. A constitution has been intended to usher in a new social and political order.3

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There is a constitutional contemplation of legal regime providing for consequences compatible with or facilitative to various fundamental rights. Express prohibition upon the State from making laws in contravention of any provisions of Part III of the Constitution (Article 13) reflects an abundant caution4against erosion of constitutionalism and continuously reminds the legislature's responsibility Equal protection of the laws ensures reasonableness of classification (Article 14); special provisions for women and children [Article 15(3)] ask for legislative intervention; law's reasonable restrictions on expressional and other freedoms aim to build up good citizenship by fettering bad self of man (Article 19); and fairness of procedure established by law aims to protect life and personal liberty (Article 21). The preventive detention Jaws under Article 22 are required to possess requisite safeguard measures

General laws protecting public order, morality and health or those that prevent or remedy the abuses of or obstruction to religious freedom and educational rights support the concerned rights. These laws fill the interstices of Fundamental Rights and support them with their distinct and detailed mechanism. Apart from laws enhancing the content, scope or efficacy of freedoms, laws are also contemplated to effectuate social justice principles through detailed legal framework. It should be remembered that Part III is also a source of social justice policies and programmes. Laws for eradication of evils like untouchability5, traffic in human beings, bonded labour and child labour are specifically hinted. Social reforms through law touching upon religious freedoms are also referred to. The reformative interstices of Part III provisions are to be filled by legislative norms. According to Justice P.B. Gajendragadkar legislative works aiming at social justice and welfare confer relevance to legislature's existence 6 The extent to which exemption from the operation of Part III shall be carved out through law in dealing

4 5 6

Patanjali Sastri, J. in A.K. Gopalan v. State of Madras, AIR 1950 SC 27

Article 17 of the Constitution P.B. Gajendragadkar, Indian Parliament and Fundamental Rights, Tagore Law Lectures (Eastern Law House, Calcutta 1972) at pp. 190, 66-67.

with military and para military forces or with situations of martial law is to be determined by Parliament. An impressive output of legislation to provide for these measures can be found generally, while the zeal for reformative laws was more in 1985-86.^ However, in matters relating to protection of women against sexual harassment in workplace and protection of children's interests against exploitation in the context of trans-national adoption, the tentative legal framework laid down by judiciary7 through guidelines in the judgment have not been converted into legislative piece with or without modifications. Judicial guidelines can also be found in the matter of procedural protections against telephone tapping, public eye camp, blood donation, etc.8Legislative acquiescence in these matters reflects complacence about legal development. The scrutiny of reports submitted by National Human Rights Commission, Women's Commission, Minorities Commission and Commission for Scheduled Caster/Scheduled Tribes or Backward Classes also makes Parliament to delve seriously into the domain of human rights. Further, the interrelationship between human rights and other values like social justice, economic development and national unity demands for a holistic and integrated approach for the handling of which Parliament is comfortably equipped, Although legislative contribution is looked largely as a "top down" model, because of prevalence of democratic base, continuity of links with people, political party and pressure groups (NGOs) and the influence of media, its character is a mix up of bottom up and top down models. However, Parliament's failure to protect rights during emergency is a big black spot on its image. Role in promotion of welfare A clause in Article 37 states, "It shall be the duty of the State to apply these principles (Directive Principles of State Policy) in making laws". The fundamentalness of Part IV in the governance of the State and the feature of its non-enforceability in courts make it more obligatory on the part of Legislature to formulate legal policies to effectuate them. The Constitution makers had viewed that political sanction by the people through electoral choice would operate as evaluating and monitoring factor on State's performance in this

Vishaka v. State of Rajasthan, (1997) 6 SCC 241; Lakshmi Kant Pandey v. Union of India, (1987) 1 SCC 66: AIR 1987 SC 232. 8 People's Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301: AIR 1997 SC 568; AS. Mittal v. State ofU.P., (1989) 3 SCC 223: AIR 1989 SC 1570; Common Cause, A Regd. Society v. Union of India, (1998) 9 SCC 367: AIR 1999 SC 3434.

matter.9 Regarding distributive justice and non-concentration of wealth, there is large number of central and state legislation, ranging from nationalization to extensive socioeconomic control.10On labour welfare, legislation providing for equal remuneration, minimum wages, maternity benefit, safety and welfare conditions at factories and other workplaces, social security measures against industrial accidents, diseases and old age and protection against job losses and such other legislation can be listed.11 About protection of health, animals especially cows, environment, and monuments several central and state laws are governing the field.12 In the matter of Uniform Civil Code, lot of self-control is exercised by the Legislature as the matter is sensitive and state intervention awaits social acceptance. However, upgrading the gender justice component of personal law has been the major policy.13 On panchayats, legal aid, education and protection of children also statutes have been enacted to fulfill the constitutional obligations. Sometimes, overlapping jurisdictions are exercised by the Centre and States.14 Cooperative federalism is yet to take deep roots in the matter of decentralized implementation of centralized legislations.

Role in maintaining national unity and multiculturalism India is a land of several languages, religions and ethnic communities. Further, regional feelings also haunt public life. The Constitution has vested upon Parliament, the power and responsibility to deal with the sensitive issues like delineation of state boundaries, continuation of language policy, and determination of rights of indigenous people. Region9

Constituent Assembly Debates, Vol. VII at pp. 493-94. Bank Nationalisation Act, 1969; Monopolies and Restrictive Trade Practices Act, 1969; Coking Coal Mines (Nationalisation) Act, 1972; General Insurance (Nationalisation) Act, 1972; also see, agrarian and economic reforms legislation listed in Ninth Schedule to the Constitution.
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Industrial Disputes Act, 1948 and various amendments from time to time; Factories Act, 1948; Maternity Benefits Act, 1961; Contract Labour (Regulation and Abolition) Act, 1970; Equal Remuneration Act, 1976; Workmen Compensation Act, 1923; Minimum Wages Act, 1948; Payment of Wages Act, 1948; Payment of Bonus Act; Working Journalists Act, etc. Also see, M.C. Setalvad, The Role of English Law in India (The Hebrew University, Jerusalem 1966) at p. 74. 12 Laws on accreditation of hospitals and nursing homes, laws on contagious diseases; Drugs and Cosmetics Act, 1940 Environment (Protection) Act, 1986; Water (Prevention and Control of Pollution) Act, 1974; Air (Prevention and Control of Pollution) Act, 1981; Wild Life (Protection) Act, 1972; Indian Forest Act, 1927; Forest Conservation Act, 1980; Bombay Animal Preservation (Gujarat Amendment) Act, 1994; Uttar Pradesh Prevention of Cow Slaughter Act, 1955; Madhya Pradesh Agricultural Cattle Preservation Act, 1959, etc.
13

Hindu Marriage Act, 1955; Hindu Succession Act, 1956; Hindu Adoption and Maintenance Act, 1956; Hindu Minority and Guardianship Act, 1956; S. 125 of Criminal Procedure Code, 1973; Hindu Succession (Amendment) Act, 2006 and state amendments providing equal coparcenery rights to daughters; Muslim Women (Protection of Rights on Divorce) Act, 1986 as interpreted in Danial Latifi v. Union of India, (2001) 7 SCC 740. 14 For example, on compulsory and free primary education the central and state Bills vary but apply on the same subjects.

based reservation in employment is also within Parliament's control. In all these matters of great importance touching upon nation's unity and integrity, the Parliament has decisive voice to lay down norms through ordinary law. It goes to the credit of great acumen and statesmanlike foresight of the national legislature that it not only handled the matter with deftness and dexterity required of the circumstances but also championed the cause of unity in diversity and multiculturalism by acting as the grand chamber of deciding national questions. In the matter of territorial organization of federal units, the power conferred upon Parliament to make laws15 has been exercised with great caution and by applying the principles of multiculturalism. Language or ethnicity as a criterion for state formation was accepted and applied by the Parliament in course of time in various contexts. Demand for formation of states on the exclusive basis of religion has been consistently rejected. Existence of overwhelming, peaceful and long-standing people's demand for statehood, consensus of the affected state, and economic or administrative viability have been taken into consideration. Secessionist tendencies have been discouraged or pacified through state formation in deserving circumstances. It goes to the credit of Parliament that its decision on statehood questions has been pragmatic, consistent and progressive as it enabled flourishing of cultural identity of homogenous communities along with their economic development but without threat of disintegration. The "sons of the soil" theory of favouring regional people in access to public employment in the concerned state has been neutralized by declining to exercise the power conferred on Parliament under Article 16(3). Judicial action of quashing and controlling the state policies favouring the local or linguistic communities in access to education and employment has suppressed the narrow-minded policies.16 The Parliament's handling of "Official Language" question is another example of its approach of objectivity, tolerance and national unity. In the background of widespread agitation against imposition of Hindi, the original policy of keeping English as a language for official purposes of the Union was continued through the Official Languages Act, 1964. Regarding use of English in judicial and legislative transaction status quo was maintained. In building linguistic harmony on sound footing, the Parliament contributed immensely. But

16

Arts. 3 and 4 of the Constitution

state legislation has sometimes strived to bolster up the image and use of regional language by preferential policies.17 Legislation for safeguarding the interests of religious minorities by establishing Minorities Commission, laws on protection of places of worship and communal harmony and laws to introduce peripheral reforms in administration of religious institutions have contributed to the policy of secularism. In 1992-93 the Parliament went to the extent of acquiring the disputed area of religious worship at Ayodhya to provide legislative support to the adjudicative process, although legislative judgment could not be validly enacted. The recent deliberations in Parliament on Rajinder Sachar Committee Report brought out the need for special measures for helping the religious minorities without any exclusive criterion of religion Regarding the sensitive issue of Uniform Civil Code, the Legislature has acted with selfrestraint and has relied on community's preparedness and inclination to accept the family law reforms. Time and again, when the Supreme Court insisted on bringing Uniform Civil Code, the Legislature exercised self restraint and thought of upgrading the levels of gender justice within each personal law.18 The legislative response to the reaction/dissatisfaction of some section of the Muslim community to Shah Bano judgment reflected in the form of Muslim Women (Protection on Divorce) Act, 1986 ultimately turned out to be helping the marginalized Muslim women. Although in releasing the pent up pressure and easing the situation the strategy might have worked, its side effect of creating an image that Legislature had indulged in pampering the minority had long-term effect. The repeated efforts of enhancing the social justice content of Hindu, Christian and indigenous people's personal laws have been supported by judiciary also. Finding answer in social justice oriented multiculturalism rather than in uniformityfor the sake ofuniformity has been the major thrust of legislature's approach. The constitutional policy on tribal development has been accentuated by the Parliament by keeping the Schedules V and VI undisturbed in spite of its power to alter the same. The Panchayats (Extension to the Scheduled Areas) Act, 1996 has aimed at retention of

18

See supra, Ch. 16 P. Ishwara Bhat, Law and Social Transformation, Eastern Book Company,2009 Edition

traditional self- governing institutions of tribals with minor modifications. Against alienation of tribal land to non-tribals extensive legal measures are prevalent in various states. The Forest laws allowed the tribals to collect minor forest produce as their customary right. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 is an important milestone in ensuring their economic security.19 The objective of national unity and security is promoted through stringent laws dealing with terrorism and acts of disruption. The space given in Article 22 to lay down preventive detention law has helped in this regard. The Preventive Detention Act, 1950, Armed Forces (Special Powers) Act, 1958, Maintenance of Internal Security Act, Goonda Act, National Security Act, 1978, Terrorist and Disruptive (Prevention) Act, 1986, Prevention of Terrorism Act were enacted to deal sternly with acts that undermine national security and peace. In suppressing terrorism in Punjab imposition of President's rule, for which Parliament's approval is a must under Article 356, has also helped in addition to the relevant laws. In sum, the legal developments reflect ongoing realization of the Legislature's responsibility towards constitutional multiculturalism and national unity. This calls for society's participation in satisfaction of communitarian aspirations and consequently has great bearing on avoidance of fissiparous tendency. International policies and legislature In controlling international policies or in responding to treaties, agreements or conventions the role entrusted on Legislature is not satisfactorily handled especially in the context of entry into WTO. Inadequate discussion of the WTO policies and mechanical application of TRIPs and other agreements for bringing far-reaching changes in the domain of Intellectual Property Rights and investment law does not befit the stature of national chamber for policy formulation. As a central processing unit of democracy, Legislature has great constitutional and sociopolitical responsibility. The benchmarks for accountability can be traced in the Spirit and express provisions of the Constitution. A survey of Legislature's performance over the decades has shown, by and large, the positive compliance with the benchmarks. Its record in
19

See supra, Chapter 10 of P. Ishwara Bhat, Law and Social Transformation, Eastern Book Company,2009 Edition

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the front of protecting the essential features of the Constitution in the course of amendments has shown signs of self-rectification. C.K. Thakkar, J. views, "By and large, constitutional functionaries in this country have admirably performed their functions, exercised their powers and discharged their duties effectively, efficiently and sincerely and there is no reason to doubt that in coming years also they would continue to act in a responsible manner expected of them."20

Bibliography 1. P. Ishwara Bhat, Law and Social Transformation, Eastern Book Company,2009 Edition 2. Jain,M.P, Indian Constitutional Law, Lexis Nexis,6th Edition,2010 3. Address of Smt .V.S Rama Devi, The Governor of Karnataka at convocation NSLIU,Bangalore,27/08/2000 on Efficacy of Legislature in ushering Social Transformation 4. Deva Indra, Sociology of Law, Oxford University Press, New Delhi. 2005

20

Raja Ram Pal, para 303.

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