by S.D. Dave
In any justice delivery system, law acquires prominent significance. It is especially so in a system which is or aspires to be sympathetic. Ultimately it is the law which is to be complimented as the Courts and Judges address the law to the addressed.
Lawmakers and thinkers in different time-space, including Manu in India were tempted to imagine a society without laws and their implementers, which was a Utopian thinking, a fact which probably must have been recognised later on. A society without laws and their implementers could be imagined only in a society which is just and honest, and its members are conscious of the rights and welfare of others, rather than their own, which would diminish the scope of acrimony and disputes.
Hammurabi is said to be the earliest lawgiver, whose Code dates back to 1754, discovered by the archeologists only in 1901. Hammurabi has dealt with various branches of law like trade and commerce; master-servant relationship; family relationship, and the connected issues like marriage and divorce, and offences like theft and slender, and the slavery rules.
Manu is considered to be an early lawgiver of India, but his field of work was restricted to the personal laws of Hindus. Moreover, his righteousness also has been inquired into by making a reference to the works of Mr. Colebrook and Mr. Ellis. It is also noticed that his writings demonstrate a mix of the Rules of Law and Precepts. The Lords in Govindayya v Doraisami and others [(1887) 11 M.5FB] have pointed out the diversity and conflict of views in the works of Mr. Colebrook and Sir Thomas Strange, based upon the writings of Manu and other contemporary scholars.
Warren Hastings, with a view to provide a reference book for the English Judges administering Indian laws, got a compilation called Gentoo Laws translated from Persian to English.
With a view to appreciate the importance of law, one would like to read some of the Jurists, with a view to ascertain what the term law really means, one would be in search of an accepted definition of it. One should not get frustrated, because of the famous skeptical expression of Thurman Arnold, saying, “Obviously law can never be defined” which is corroborated by many. Lord Lloyd is of the same view when he writes, “Since much juristic ink has flowed in an endeavour to provide a universally acceptable definition of law but with little sign of attaining that objective.” Pollock has also concurred with such thinking by saying, “The greater a lawyer’s opportunities for knowledge have been and more time he has given to the study of legal principles, the greater will be his hesitation in the face of a simple question, “What is law?””
However, there are others, like Kant, Hegel, Austin and Salmond who have devised their own thinking to define the term. Kant has expressed himself by saying, “The sum total of the conditions, under which the personal wishes of one man can be combined with the personal views of another man, in accordance with the general law of freedom.” Hegel’s definition is simpler, when he says, “Law is the abstract expression of the general will existing in and for himself.” According to Austin, “Law is the aggregate of rules set by men as politically superior or sovereign, to man, as politically subject.”
According to Salmond, “Law may be defined as the body of the principles recognised and adopted by the State in the administration of justice.” Concentrating upon the Civil Laws, he says, “Civil Law is the law of the State or of the land, the laws of the lawmakers and the law of Courts.”
These four approaches towards the understanding of the term ‘law’ have more or less come to be acceptable in Jurisprudence.
The laws made by the independent countries stand on a different pedestal as compared with those of the countries ruled by a foreign sovereign or their de facto agents. When a country makes laws for its own citizens the predominant consideration is to give them good governance, which many a times lacks in the laws made by a foreign sovereign for his ‘subjects or natives’. Of course these laws are framed according to the needs of the government, but one finds classic examples where laws are framed for safeguarding the interest of the ruler, at the detriment and peril of the governed. This distinction is notoriously apparent in the laws enacted under the colonial rule in India. Some of the laws made by them are beneficial to the citizens, yet some others outweigh the benefits.
Some of the most beneficial Regulations or Enactments were The Sati Regulation Act, 1892; Act No. VII of 1870 (for the Prevention of the Murder of Female Infants); and The Champaran Agrarian Act, 1918.
The Sati Act, promulgated by Lord William Bentinck, with the support of Raja Ram Mohan Roy and the Christian missionaries, notably the three known as ‘Serampore Trio’ under Clause II, declares the practice of ‘Suttee’ or of burning or burying alive the widows of Hindus, illegal and punishable by the Criminal Courts. The Prevention of the Murder of Female Infanticide Act enabled the local governments to make and notify the Rules, which would prevent the performing of Sati. The Champaran Act, which was an outcome of the satyagraha led by Mahatma Gandhi, put an end to the widely prevalent practice of setting apart by the tenant, his land or any portion thereof, for the cultivation of Indigo, popularly known as “Teen Kathia” system recognised by the proclamations, deep rooted practice and usages. The situation was worse if not the same for the cultivation of Poppy and manufacture and export of Opium, all of which were regulated by the Opium Acts of 1857 and 1876, which came to be repealed by The Narcotic Drugs and Psychotropic Substances Act, 1985.
Other notable beneficial enactments were:
Act No. XX which removed all legal obstacles to the marriage of Hindu widows.
The Societies Registration Act of 1860, meant for the improving of the legal conditions of the societies established for the promotion of literature, science and the fine arts.
The Religious Endowments Act, 1863, which enabled the government to divest itself from the management of the endowments; and
The Hindu Inheritance (Removal of Disabilities) Act, 1928, which practically repealed the Scholastic Hindu Law relating to the exclusion of certain classes of heirs from inheritance on the ground of their personal disabilities. This exclusion, anyhow, was maintained for the persons suffering from lunacy or idiocy.
But the list and impact of the Regulations and Enactments, leaning heavily towards the establishment and against the people, are not small.
The Apprentice Act, 1850, ‘meant for better enabling of the children to learn trades and crafts’, provided for cruel punishments like solitary confinement, whipping and keeping the apprentice on bread and water for their ill behaviour.
The Act No. XXVI of 1870, ‘meant for amending the law relating to Prisons’, was utilised to reign terror over the prisoners by legalising the punishments like solitary confinement, corporal punishment of stripes of ratan not exceeding thirty, and confinement in irons for any term not exceeding six months.
This reading of the two sets of Enactments and Regulations would suffice to justify a clear distinction between the selfish legislative and administrative actions, and the beneficial enactments and orders which could bring social and economic benefits to the people of India. Having studied these two sets of the legislative activity during the Colonial rule, it would now be apposite to study this activity by the Indian Legislature, after independence. Article 13 of the Constitution of India read as a whole shows that it is both, retrospective and prospective in operation, as Article 13(1) declares all pre-constitution laws, insofar as they are inconsistent with the provisions, which guarantee the fundamental rights, shall to that extent be void. Article 13(2) mandates that the State shall not make any law, which takes away or abridges the rights conferred by Part III of the Constitution, and any law made in contravention of the Clause to that extent, shall be void. But these principles suffered a jolt by Article 13(4) inserted by The Twenty-fourth Amendment Act, 1971, saying that nothing in the Article shall apply to any amendment of the Constitution, meaning thereby that the constitutional amendments shall not be circumscribed by the provisions under Article 13(1) and 13(2). After Golaknath (AIR 1967 SC 1634) the Legislature came out with The Forty-second Amendment, which inserted Clauses (4) and (5) in Article 368 mandating that no amendment (including the provisions of Part III) made under Article 368, shall be called in question in any Court on any ground, and that there shall be no limitation whatsoever on the constitutional power of Parliament to amend, by way of addition, variation or repeal the provisions of the Constitution under Article 368. But this amendment came to be subsequently struck down as being ultra vires, in the case of Minerva Mills Limited v. Union of India [AIR 1980 SC 1769]. In the post independence era, the Legislature was busy enacting new laws, amending the existing and sometimes codifying the scattered Rules of Law. The Legislature, in consonance with the thinking of the Nehruvian and Indira Gandhi era, came out with laws protecting the less privileged section of the society. The policy in respect of the Agrarian Reforms inspired the States to enact tenancy laws to end the absentee landlordism and transferring the status of tenant to that of the owner, on paying a small amount to be paid in twelve yearly installments. The transfer of agricultural land to a non-agriculturist came to be banned. Looking to the smallholdings of land in the country, the States have brought in the laws for prevention of fragmentation and for consolidation of the holdings. The urban and the agricultural lands ceiling laws put a limit on the holdings, and surplus lands came to be made available to the landless. Unfortunately, years thereafter the urban land ceiling legislation came to be repealed. The zamindari system also came to be abolished by the State Acts. Some of the States when required came out with Agricultural Debtors Relief Acts, safeguarding the interest of the debtors. Under their laws, the States prepared and put in action the housing schemes. The State laws for the Industrial Development brought in the state level corporations, for establishing industrial estates, providing the unemployed masses with the opportunity to work and earn. The codification of the Personal Laws with necessary amendments ameliorated the condition of women. This is more evident in the personal laws of Hindus. The Hindu Marriage Act, 1955, as amended in 1976 prohibits polygamy and polyandry; recognises monogamous marriage as the only valid marriage; declares the marriage with a person having a living spouse void; permits inter-caste marriages; enlists the grounds of divorce available to each of the spouses along with further grounds available only to the wife; and recognises the right of either of the spouses to move the Court for Restitution of Conjugal Rights, Judicial Separation and Divorce. The Hindu Succession Act, 1956, makes the daughter of a coparcener governed by Mitakshara, a coparcener in her own right by birth, having the same rights in the coparcenery property, as if she is a son. Moreover, the concept of limited estate of Hindu widows has been given a complete go-by and she has been made an absolute owner. At the time of partition, in a Joint Hindu Family the coparcenery property is to be so divided, as to allot to a daughter, the same share as is allotable to a son. Under the Hindu Minority and Guardianship Act, 1956, though the mother is a second preferential natural guardian, the custody of the minor below the age of five years is ordinarily to be with the mother. The Hindu Adoptions and Maintenance Act, 1956, confer upon the Hindu female a right to adopt a child, either male or female. Recognising that sustainable development is impossible without a well working eco system, the Legislature has come out with the Environment Protection Act, 1956, and the Air and Water Pollution Prevention Acts and the Rules framed there under, for the sustainable development to be made and maintained in the country. The Consumer Protection Act (as amended by the Amendment Acts of 1991, 1993 and 2002) and the Rules framed there under, provide for the speedy and simple redressal of the grievances regarding the goods or services, by establishing a three tier judicial system, i.e. the Forums at the District, the State and the Central level. The Protection of the Human Rights Act, 1993, provides for the National and State Commissions and Courts for protecting the rights of the citizens related to life, liberty, equality and dignity, as guaranteed by the Constitution or embodied in the International Covenants. The Union Government was not unmindful of the fact that, though under the British rule the Trade Union’s Act, 1926, the Workmen’s Compensation Act, 1923, and the Bombay Industrial Relations Act, 1946 were enacted; certain aspects in the field of labour laws were required to be taken care of. This thinking had resulted into the enactment of The Minimum Wages Act, 1948, providing for the fixing of minimum rates of wages in certain employments. The Institutions of Provident Fund, Pension Fund and the Deposit Linked Insurance Fund for factories and other establishments came to be brought in, under the Employees Provident Funds Act of 1952. The Maternity Benefit Act, 1961, and the Rules framed there under, regulate the employment of women in certain establishments for certain periods, before and after the childbirth and provide the maternity and certain other benefits. The Contract Labour (Regulation and Abolition) Act, 1970, and the Rules framed there under, provide for the abolition of such a practice in certain circumstances. The Arbitration and Conciliation Act of 1996, as amended by the Act No. 3 of 2016, should be seen as a classic example of the response to the expectation of General Assembly of the United Nations, to have the Arbitration Laws in all the countries in consonance with the model law prescribed by UNCITRAL, which would serve the purpose of speedy resolution of commercial disputes in India as the Alternate Dispute Resolution mechanism. The global increase in the generation and use of nuclear energy and the acquisition of nuclear weaponry had required India to be a part of the Global Civil Nuclear Damage Compensation Regime, which goal could not be achieved because of the non-ratification of the CTBT and NPT; and of not being the signatory to the Paris and Vienna Conventions of 1960 and 1963 respectively. But the 1997 Convention on Supplementary Compensation for Nuclear Damage opened the doors of the global regime for India. This Convention has said that the countries, which are not the ratifying parties or signatories to these Treaties and Conventions, would be able to be a part of the Global Regime, provided they enact their own laws as per the annex of the 1997 Convention. It was in these circumstances that India has enacted the Civil Liability for Nuclear Damage Act of 2002, and has become the part of the Global Regime. The Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013, (which takes the place of the Act of 1894) and the Rules framed there under, is a milestone in acquisition legislation of India. The Act concentrates not only upon the compensation payable to the land owners but grants the collateral benefits of rehabilitation and resettlement of the displaced, over and above the minimum compensation, which is to be ascertained upon the relevant factors including the market value. The concept of obtaining the consent for acquisition of eighty per cent of the land owners and the compulsory social impact study, are the new features of the Act. Again, the acquisition could be for the use of the Union or State Governments and only for the enlisted public purposes. Most importantly there is a provision that the acquisition made earlier would lapse, if the land has not been put to the use for five years and the compensation has not been paid to the land owners. The laws are made by the Legislature and not by the Courts, but yet we have seen the scope of the advancement of the Judge-made law. Vishaka & Others v State of Rajasthan [(1997) 6 SCC 241] provides the first incident in which the Supreme Court gives complete guidelines in the matters related to sexual harassment of women at work places. It has been said by the Supreme Court, that the guidelines would prevail till the Legislature passes the law in this respect. Later on the Legislature has enacted the Act of 2013 which would supersede the guidelines. The Supreme Court pronouncement in Shayara Bano v Union of India [2017 (9) SCALE 178] under the majority view has held, that the Instant Triple Talaq is violative of Article 13(1) of the Constitution of India. It also lays down that the Muslim (Shariat) Application Act, 1937, which permits the Instant Triple Talaq is void and unconstitutional. The Naz Foundation Trust had filed a Writ Petition in the Delhi High Court challenging the constitutional validity of Section 377 IPC, which penalises unlawful sexual acts against the order of nature. The High Court had recognised the plea of the petitioner. The Judgment came to be overturned by the Supreme Court in case of Suresh Kumar Koushal v Naz Foundation [(2014) 1 SCC 1]. But once again the Supreme Court in the case of Navtej Singh Tomar v Union of India [(2018) 1 SCC 791] has taken a different view saying that Section 377 IPC is violative of the rights of the citizens under Article 21 of the Constitution. This decision of the Supreme Court is said to be a step forward in the social life of the citizens, and is in consonance with the well-recognised global view. The High Court of Delhi in case of Aruna Shanbaug was not prepared to accept the right of a human being to die, having the recourse of active or passive Euthanasia. This decision of the High Court came to be reversed by the Supreme Court in Common Cause v Union of India [(2014) 5 SCC 338]. This appreciation of the Laws framed under the Colonial rule and by the Legislature of independent India, manifests clearly, that some of the laws made during the Colonial rule were indeed selfish yet some others were clearly beneficial to the citizens of the country. These laws can be said to be sympathetic laws which takes into consideration the public good and the welfare of the society. Such sympathetic laws would indeed be helpful in establishing a sympathetic justice delivery system, as they provide a room for the courts to interpret such laws and to accord the benefits there under, of course looking to the facts and circumstances of the case, a phenomena alien to the non-sympathetic laws. This understanding of the good and the bad of the laws would justify the say that law is a basic constituent of a sympathetic justice delivery system. This part could be concluded with a wish, that the areas in which sympathetic laws are required to be enacted, are identified, and the requisite legislation is put in place.