WOMEN AND LAW

Women and Law

Changes brought by the constitutional and legal provisions for the empowerment of women in India.

Introduction

            It is customary everywhere to classify the human community on the basis of sex into groups of “men” and “women”. The biological fact of sex has created much difference between them. The aims and objectives; desires and aspirations, duties and responsibilities, dress styles and behavioral patterns, roles and statuses of men and women are different. Women have not been able to lead a life exactly on par with men in spite of their urge for equality. This does not mean that men and women represent two different cultures as such. They represent one way of life, one culture and one heritage. This is also true of India and Indian women.

            Women in ancient India, particularly during the Vedic period, enjoyed a position which was on the whole much more satisfactory than in the later periods. Women underwent almost a kind of servitude during the medieval period and their position went on improving during the British Period and after Independence. Today, Indian women are almost assigned an equal status with men. All their political, economic and educational and other disabilities have been removed legally. This does not, however, mean Indian women are completely free from problems.

Status of women in India during Pre British Period and British Period

1. Status of women in India in Pre British Period

Women in this period had to face a number of problems of which the following may be noted practice of child marriage, prohibition of widow remarriages, Practice of sati, Purdah system and devadasi system. There is an equally poor position of Muslim women. But there is an impact of Bhakti Movement on the status of women and some other movements also.

2. Status of women in India during in British Period

Improvement in the status of women during British period was on account of the following:

(i)                 Change in the attitude towards life: Along with the British People the western culture and its “lifestyle” and values also came to India. The western way of which the British represented and its impact on the Indians. The western values, their world view,  their liberal principles, rationalistic attitude towards problems, critical approach towards issues, the right to question and criticize, social equality, belief in the individual enterprise, equal importance for the rights and duties of man and such other things of the west, influenced the Indians’ way of life and particularly their attitude towards women.

(ii)               Role of Social Reformers and Reform Movements in the Emancipation of Women:

Raja Ram Mohan Roy: the founder of Brahmo Samaj who played an important role in getting the “sati” system abolished. He fought for other causes like child marriage and purdah system too.

Ishwar Chandra Vidyasagar: He launched a movement for the right of widows to remarry and pleaded for educating women. It was due to his efforts and the pressure that he brought on the British Government, the Widow Remarriage Act was passed in 1856.

Other names can be mentioned Maharishi Dayananda Saraswathi, Maharaja Sayyaji Rao Gaekwar, Swami Vivekananda, Dadabhai Naoroji, Gopalkrishna Gokhale, Mahatma Gandhiji. Women leaders with western background such as Nivedita, Annie Besant and Indian women like Sarojini Naidu , Pandit Rama Bai, Ramabhai Ranade were also active participants who work for the women cause.

(iii)             Influence of women education: Education was neglected for more than 2000 years. Only girl’s belongings to rich and royal classes and those belongings to the families of dancers and devdasi could get some education, while the vast mass of women remained totally illiterate. No one felt the need for educating them for they were fed and protected by their men folk. The idea of educating women emerged during British Period. The Christian Missionaries also took a extreme interest on women’s education.

(iv)             Role of women leaders and women’s organizations: Some woman organizations tried to create awareness among women. Mention can be made of few of these organizations such as Arya Mahila Samaj, Bharat Mahila Parishad, Bharat Stri Mahamandal, All India Womens’s conference.

(v)               Women employment sector:  By the end of 19^th century, women were very much attracted towards two professions (a) Medical and (b) Teaching professions. Many a women enter teaching profession in school and large numbers of women enter in the newly opened school and colleges to classify themselves as nurses and doctors.

(vi)             Enactment of social legislation:  many laws were enacted relating to the cause of women regarding marriage, property and employment. Some names can be enlisted here as follows The Widow Remarriage Act, 1856, The Special Marriage Act, 1872, The Women’s Property Act 1874, The Women’s Right to Property Act 1939.

Changes in the status of women after Independence (with the enactment of Constitutional and legislation in support of women’s cause)

(a) Constitutional Provision for equality to women

The status of Indian woman has radically changed since independence. Both the structural and cultural changes provided equality of opportunities. The constitution of India does not discriminate between men and women. All the men and women of India are equally entitled for individual freedom, fundamental rights including the right to participate in social, cultural, religious, educational, economic and political activities. The constitution provides for equality of sex and offers protection to women against exploitation. It has given the voting right to women and in no way treats women as second grade citizens.

(b) Social Legislation safeguarding women’s interests:

 The Government o Independent India undertook a number of legislative measures to safeguard the interests of women. Some of them may be noted here.

(i)                 The Hindu Marriage Act, 1955: It prohibits polygyny, polyandry and child marriage and concedes equal rights to women to divorce and to remarry.

(ii)               The Hindu Succession Act, 1956:  It provides for women the right to parental property.

(iii)             The Hindu Adoption Act and Maintenance Act, 1956:  This gives childless woman the right to adopt and to claim maintenance from the husband if she is divorced by him.

(iv)             The Special Marriage Act, 1954: which provides rights to women on par with men for inter caste marriage, love marriage ad registered marriage. The act has also fixed the minimum age of marriage at 21 for males and 18 or girls.

(v)               The Dowry Prohibition Act, 1961: This declares the taking of dowry an unlawful activity and thereby prevents exploitation of women.

(vi)              Other legislations can be mentioned of the suppression of Immoral Traffic of Women and Girls Act, 1956, The Medical Termination Act of Pregnancy Act, 1971, The Criminal Law Amendment Act, 1983, The Family Court act, 1984.

(b) Women in the field of education and economic structures:

After Independence, women of India took to education in a relatively large number. Various institutions are opened to educate women and there are even universities only meant for women section. Government provides many benefits such as freeship, scholarship, loan facility, hostel facility, etc. are being given to women who go for higher education.  But more than 70% of our rural women are still illiterate and only a negligible number of them develop their educational career.

In both villages and cities there have been remarkable increases in the numbers of women going out of the four walls of the household and becoming workers. In order to give protection to the economic interests and rights of the women folk Government has undertaken various socio economic legislations which cover areas as right to property or inheritance, equal wages, working conditions, maternity benefits and job security. Examples can be made of the following: The Maternity Benefit Act,1961: It gives maternity benefits such as two months leave with salary to the married women workers; The Equal Remuneration Act,1976: It removes wage discrimination; The Factories Amendment Act,1976 etc.

(d) Women in Political structure: The Indian constitution has sanctioned women to important political rights: female enfranchisement and eligibility for the legislature. As early as in 1937 itself some candidates had contested for elections to the local legislative bodies and won. After the independence, the number of women voters and women’s representatives increased sufficiently. Again the women reservation bill securing third of the seats for women in Lok Sabha and state Assemblies was passed by the Rajya Sabha on March 9, 2010 which is a landmark measure in empowering women.

Conclusion:

Laws are enacted to safeguard human rights and for the welfare of the society but some misuse various laws and create a new problem from the law that was made as a solution. Misuse of dowry prevention act and misuse of legalize abortion act, Misuse of divorce right can be cited as examples.But in spite of all these rights and legislation enacted for the safeguard of women status in India there are many new problems which are coming up with these changes. Example can be made of marital problems like dowry system, divorce; purdah system, Prostitution; Health Problems, adjustment problem in urban lifestyle, etc.  So there is a need for new scheme of laws to be enacted to solve the new problems face by the new generation women in this globalize period.

LAW UNDER GOBALISATION

Sociology of Law

Law Under Globalisation

Term Paper

Appu Lenin

MA Sociology II Semester

                                                                Department of Sociology, JMI New Delhi

An attempt to summaries the impact of Globalsation on Law and also attempting to understand the dynamics through which Global North-South addresses the emergent issues.

Globalisation

In some contexts the term Globalisation is used to refer to economic relations within a single “world economy”. This usage is illustrated by “the anti-globalisation” movement that is directed mainly against the dominance of the world economy by capitalist ideology and practices associated with a few powerful countries and institutions. This is narrow in two ways: it refers to only one set of relations and it is mainly confined to the world treated as a whole. Here “Globalisation” is used in a broad sense, following Anthony Giddens[1], to go beyond economics to include any processes that tend to make human relations --economic, political, cultural, communicative etc-- more interdependent.  Sometimes this refers to the world as a whole, i.e. those relations and issues that are genuinely worldwide; but sometimes it refers to relations that transcend national boundaries to a greater or lesser degree.

One needs to cast a sceptical eye on talk about “global law”, “global lawyers”, “global law firms”, or “global legal culture” because so many generalisations about so-called “global” phenomena are exaggerated (“global” means widespread) or conflate aspiration and reality (the International Criminal Court aspires to be global, but it is not there yet) or they are superficial, ethnocentric, misleading, meaningless, speculative, exaggerated, false or a combination of these.

A high proportion of processes referred to as “global” operate at more limited sub-global levels. These levels, insofar as they are spatial, are not nested in a single vertical hierarchy --galactic, global, regional, national, sub-state, local and so on. A picture of patterns of law in the world needs to take account of regions, empires, diasporas, alliances, trading partners, legal traditions and families and so on. The British Empire, the English-speaking world, religious diasporas, the common law world, “the Arab world” even so-called “World Wars” are all sub-global; so it is misleading to talk about them as if they apply to the world as a whole. These sub-global patterns are crucial --especially for lawyers. Treating all human rights law, and even public international law as genuinely global in most respects is an exaggeration. It also blurs distinctions between aspiration and reality. It is difficult to generalise about legal phenomena across traditions and cultures, but insofar as there are reasonably clear patterns, most of them tend to follow sub-global arrangements: the European Union, the English-speaking world, the common law world, the former Soviet bloc, former empires, religious and ethnic diasporas.

This does not involve making any strong assumptions about uniformities or convergence. A global perspective involves looking at the world and humankind as a whole and setting accounts of particular phenomena in the context of broad geographical pictures and long historical time-frames. The world is becoming more interdependent and one needs to adopt a global perspective to understand these processes in relation to law.

Our world still has relatively finite boundaries in a way that societies and nation states increasingly do not. Adopting a global perspective is mainly useful for setting a context for more particular, typically local, studies, which will still continue to be the main focus of our discipline.

Globalisation is already having, and will continue to have, a major impact on the landscape of specialised legal fields. But this is happening in different ways. Some clear trends are already apparent. First, greater emphasis is being placed on established transnational fields, such as public international law, regional law, international trade and finance (including lex mercatoria and Islamic banking and finance), and environmental law. New transnational fields are emerging, such as Internet law, procurement, and transitional justice. Since 9/11 international criminal law has been given a boost. From a global perspective the North-South divide is of crucial importance, and this makes issues of world poverty and “law and development” much more central for the discipline of law and legal theory than they have been in the past. As was noted above, since about 1990 there has seen a spate of “rethinkings” in several transnational fields.  A second obvious development is an increased recognition of the legal dimensions of issues and phenomena that are genuinely global, such as climate change and other environmental issues, radical poverty, the common heritage of mankind, migration, war, international crime, terrorism, pandemics, and the media.

Third, and less obvious, there is a growing emphasis on the transnational dimensions of subjects previously perceived as domestic, such as contract, criminal law, family law, intellectual property, and labour law. For example, in family law, issues relating to the interests and rights of children in respect of labour, custody, adoption and abduction across national borders, and the sex trade.

Fourth, increasing attention is being paid to diffusion of law generally, and specifically of religious and customary practices through migration, their interface with municipal state law in Northern countries, and the fact that religious and ethnic minority communities have institutionalised social practices that are not officially recognized. Finally, today no scholar, or even student, of law can focus solely on the domestic law of a single jurisdiction. Every law student in the United Kingdom encounters European Community Law and, directly or indirectly, the European Convention on Human Rights.

Here are a few impacts of Globalisation on Law:

(a) Conceptions of law

In the twentieth century nearly all mainstream Western legal theory and legal scholarship focused on the domestic law of municipal legal systems, sometimes extending to public international law in the narrow sense of law governing relations between states (‘The Westphalian Duo’). Recently, regional law has complicated the picture. Today, a map of law in the world that leaves out religious law, important forms of indigenous, customary or Cthonic law[2], or emerging orders (e.g. the new lex mercatoria[3]), just leaves out too much. From a global perspective a reasonably inclusive picture of law in the world would encompass various forms of non-state law, especially different kinds of religious and customary law that fall outside “the

Westphalian duo”.

There are, of course, problems of conceptualisation and strong claims about the importance and distinctiveness of state law, but it is difficult to believe that anyone seriously maintains that such phenomena do not exist or should not be a concern of legal scholarship. For legal theorists a recurrent puzzle is how to construct conceptions of law, which are broad enough to include important types of non-state law, but which do not include all forms of social rules and institutions. “The problem of the definitional stop” has revived discussion about broad and narrow conceptions of law, the relative distinctiveness and importance of state law as a legal form, and how far liberal ideas of democracy, the Rule of Law, distributive justice, and human rights are dependent on the survival and flourishing of the modern bureaucratic state.

Non-state law is not important only in the Global South or non-Western countries. In Western countries with significant migrant communities it is an increasingly salient phenomenon, not only in respect of the interaction of non-state norms with state law, but also as institutionalised social practices that operate independently of the municipal legal system. How can a teacher of UK municipal law concerned with mortgages, or consumer credit, or small businesses today ignore Islamic banking and finance? Riba[4] is now part of the picture of domestic law in England and Wales. Similar concerns apply to family law, succession, and criminal law.

(b) Borders

Impermeable territorial boundaries and exclusive state sovereignty are increasingly challenged. Talk of “a borderless world” or “the end of sovereignty” are no doubt exaggerated, and the right to national self-determination is still a powerful doctrine in this post-colonial era. However, “black box” theories of societies and nation states are no longer tenable. The European Union has taught us to accept ideas about the divisibility of sovereignty. Doctrines of humanitarian intervention further undermine strong doctrines of state sovereignty. Sociologists are now regularly challenging the utility of “society” as an analytic concept. John Rawls’ theory of justice, which is confined to societies as self-contained units, just does not fit today’s picture of human, social, and economic relations in the world. None of this means that the nation state is in terminal decline and that national boundaries are no longer significant, but it does mean that we can no longer treat domestic law as if it is self-contained.

(c) Monism and normative and legal pluralism

Legal monism, sometimes referred to as “state centralism”, maintains that sovereign states claim and exercise a monopoly of legal authority and legitimate force within the territory over which they have jurisdiction. However, if one accepts some conception of non-state law this opens the way to recognition of situations of legal pluralism, that is the co-existence of two or more legal orders in the same time-space context.

From a global perspective, legal pluralism is a very important phenomenon at all levels of ordering, both within and across levels. If one separates out broader issues that belong to the general theory of norms, or problems of conceptualising law, or ideological issues about “the state”, it is relatively straightforward to conceive of legal pluralism as a social fact. Its scope depends in large part on one’s conception of law. Once the broader theoretical issues are distinguished, most of the interesting questions about legal pluralism are empirical and need to be set in some broader intellectual framework, including that of orthodox jurisprudence. Legal and normative pluralism is now quite widely recognized as a significant phenomenon in most transnational subjects. In multicultural societies --which today means most societies -- it is increasingly relevant to the study of domestic law, but in different ways for different fields.

(d) States and bureaucracy

In Western traditions the main focus of academic law has been on state legal systems. Some variations in types of states are recognized, but there is a tendency to assume some model of “the modern constitutional state”, which is conceived of as rational-bureaucratic and instrumental, typically, but not necessarily, underpinned by some version of liberal ideology. While nearly all members of the United Nations and many international organizations are institutionalised in accordance with some model of bureaucracy, large parts of the world’s population live in societies and communities that are differently organized. This is especially the case in countries involved in civil war, or where the state is weak, corrupt or otherwise ineffective. It is also worth remembering that state law tends to be more urban than rural. As political scientists and constitutional theorists recognize, formal membership of the United Nations conceals the wide variations between states.

National legal traditions crystallize in many different forms, some close to the European model, or models, others far removed from them. Diversity emerges in the choice which the members of each state make as to its constituent elements. The tradition of a national legal system creates no obstacle to this, since systems are defined only in terms of ensembles with interacting elements. The general lesson is that one should not assume that Western models of the state or state legal systems fit all situations.

(e) Challenges to top-down perspectives

Perhaps a more contentious proposition is that Western academic legal culture tends to adopt the standpoints of sovereigns, rulers, legislators, judges, officials and elites, without much regard for the points of view of users, consumers, victims, litigants, and other subjects. Emphasis on multiple perspectives and differentiation of standpoint in understanding law has developed largely independently of globalisation. However, from a global perspective we live in a post-colonial era that emphasises various forms of “subaltern” perspectives: for example, resistance to colonial impositions, international law from below, user perspectives on law.  Baxi[5] argues that the main authors of human rights are communities in struggle rather than Western thinkers. They are not “a gift of the West to the Rest”. The topic of understanding law from different standpoints is too complex to pursue here. Suffice to say that “globalisation” has given a stimulus to re-considering law from different points of view.

(f) Transplantation, reception, diffusion

From a global perspective a map of state law in the world inevitably depicts a continuous story of interaction and diffusion. Legal traditions have interacted with each other throughout history. Until the mid-twentieth century, imperialism and colonialism were probably the main, but not the only, engines of diffusion of state law. In comparative law it has sometimes been assumed that modern state law is almost exclusively a Northern (European/ Anglo-American) creation, spread through nearly all of the world via colonialism, imperialism, trade and more recent neocolonial influences. This provided one justification for concentrating largely on “parent” legal systems. In the post-colonial era the processes of diffusion have been perceived to be more varied and there is a growing realisation that diffusion of law does not necessarily lead to convergence, harmonisation, or unification of laws.

(g) Doctrinal and institutional perspectives on law: the issue of surface law

In the Anglo-American legal tradition rivalry between doctrinal and institutional conceptions of law and between “black letter” (expository) and socio-legal approaches to legal studies is of long-standing. On the whole, the mainstream has been dominated by doctrinal conceptions and approaches, but not to the complete exclusion of empirical legal studies. There is widespread sympathy for the idea of law as institutionalised normative order or as institutionalised social practice even from those whose main concern is with doctrine. To date empirical comparative law and other kinds of transnational socio-legal work are not well-developed.  However, as comparative law, diffusion, and issues about convergence, harmonisation and unification of laws become more salient, it is more than ever important to penetrate beneath the surface of official legal doctrine to reach the realities of all forms of law as social practices.

“Surface law” does not mean law that is only on the surface. Rather it is concerned with the realities of “law in action” is as important from a global perspective as it is for more traditional understandings of law.

(h) Secularism and religious revival

It is commonplace in some quarters to talk of “a secular age” and of modern society as being predominantly secular. There is even talk of human rights as a form of “secular liberation theology”. From a global perspective, that seems parochial. Rather, demographers of religion argue that this is an era of religious revival, not only in respect of Islam, but of Christianity, and Bhuddism. This is not only in the “Global South” --consider the challenges to Kemalism in Turkey and the rising importance of Islam in most Western countries. Of course, “secularism” has several meanings: it can mean anti-religious, or non-religious, or it can refer to a doctrine or policy that the modern state should be independent of and a neutral arbiter between religions.

In an important recent book, Abdullahi An-Na’im has argued that throughout history Islam and the state have normally been considered as separate and the idea of an “Islamic state” is a deviation, based on European ideas of state and law. It does not follow from this that religion should be excluded from public life, but rather that state policies and legislation should be based on civic reason, that can include religious ideas, but does not involve the implementation of religious doctrine as law. Conversely, for believers human rights as moral, political and legal rights cannot be justified on secular premises alone; their legitimation must be grounded on the cultural premises of different belief systems. Since most modern societies are multi-cultural and multiethnic, this thesis has important implications for domestic civil and constitutional rights as well as for international human rights.

(i) Universalism and belief pluralism

Western Jurisprudence has a long tradition of universalism in ethics. Natural law, Kantianism, utilitarianism, and modern theories of human rights have all been universalist in tendency. Nearly all such theories have been developed and debated with at most only tangential reference to and in almost complete ignorance of the religious and moral beliefs and traditions of the rest of humankind. When differing cultural values are discussed, even the agenda of issues has a stereotypically Western bias.

How can one seriously claim to be a universalist, if one is ethnocentrically unaware of the ideas and values of other belief systems and traditions?

From a global perspective, the world today is characterised by a diversity of deep-rooted, perhaps incommensurable, belief systems. One of the main challenges facing the human race in a situation of increasing interdependence is how to construct institutions and processes that promote co-existence and co-operation between peoples with very different cosmologies and values. Globalisation has stimulated a revival of old debates between universalism and cultural relativism. It has also provoked the long-running “Asian values” debate, in which claims that human rights are specifically Western and incompatible with more communalistic cultures have been strongly contested, not least by leading thinkers of Asian origin, such as Amartya Sen.

(j) Ethnocentrism, parochialism and ignorance of other traditions

Ethnocentrism means “culturally biased judgement” or “a tendency to look at other cultures through the filter of one’s own cultural presuppositions”. As the discipline of law becomes more cosmopolitan we need to become better acquainted with the leading thinkers and salient ideas and controversies in other legal traditions and to extend our orthodox canon of juristic texts. Until now non-Western law and jurisprudence has been considered the province of specialists. Despite criticisms of “orientalism”, there has been some excellent work by Western scholars on Islamic, Hindu, Bhuddist and Chinese legal thought.

Conclusion

There are relatively few genuinely global issues and phenomena. For the most part a global perspective is useful for setting a broad context for more particular studies. Globalization and increased interdependence at sub-global levels will be perceived to have different implications for different specialisms. That is for the specialists to work out. The “ideal types” of mainstream traditions of academic law, comparative law, and diffusion may suggest that academic legal culture in the twentieth century has tended to be state-oriented, secular, positivist, “top-down”, North-centric, unempirical, universalist in respect of morals, and rather parochial, even ethnocentric, in respect of focus, audience, sources, and perspectives. These broad and rather crude propositions are intended to signal important points at which quite widespread assumptions look questionable if one adopts a global perspective. It is intended not so much as a sweeping and radical critique of Western academic law, but more as a check-list of points where some rethinking and adjustments may be necessary in different ways for different areas of specialisation. For some it may involve “a paradigm shift”; for others a gentler broadening of horizons. It is not part of my argument that we should move over lock stock and barrel to a global discipline of law based on some grand over-arching theory. Law is a practical subject that on the whole requires particularistic local knowledge and a focus on detailed, specific, sharply defined issues.

A global perspective can provide context and specific challenges. We should not abandon our heritage, but rather set our scholarship in a broad context, critically examine the underlying assumptions of received learning, and have at least a working general knowledge of other traditions and belief systems.

References

Abdullahi An-Na’im, (2008) Islam and the Secular State: Negotiating the Future of Shari’a. (Cambridge MA: Harvard University Press).

Amartya Sen (1997) “Human Rights and Asian Values: What Lee Kuan Yew and Li Peng don’t understand about Asia” July 14&21

H. Patrick Glenn (2004) Legal Traditions of the World (2nd edn., Oxford: Oxford University Press)

William Twining (2000) "Comparative Law and Legal Theory: The Country and Western Tradition” in Ian Edge, Ian (ed.), op. cit, 21; cf. GLT Ch. 7.

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[1] Anthony Giddens (1990) The Consequences of Modernity Stanford: Stanford University Press at p.64.

[2]  (law) A system of law centered on the sacred character of the cosmos.

[3]  The Latin expression for a body of trading principles used by merchants throughout Europe in the medieval period.

[4] Means usury and is forbidden in Islamic economic jurisprudence fiqh.

[5] Upendra Baxi (2006) The Future of Human Rights (2nd. edn., New Delhi: Oxford University Press)

Preface at xxii.

REPRESSIVE LAWS IN INDIA

Why Repressive Laws?

The contemporary world is experiencing many unusual movements including the so-called terrorist acts emanating from worldwide unrest. There is an intense debate on these eruptions and ways and means to deal with this rapidly changing alarming global context. The central anxiety regarding these movements is that those who are questioning or challenging the system are armed and do believe in using force to win their point. The state maintains that the ordinary laws meant for regulating the public affairs are not adequate as most of these laws assume a normal society with citizens whose conduct is broadly in conformity with the laws of the land. In fact it is widely believed, certainly with an element of truth that the laws arise from consensus, if not individual consent of every citizen. The state being responsible for governance derives its power from the laws of the land. Every law confers powers on the State but also limits the power so that power does not become tyrannical. The laws also define the rights and freedoms of citizenry through which their relation with the state is determined. It has been the worldwide experience that it is in the very nature of the state to transgress the limits of the law. In case of citizens at least some sections of the citizenry, there is a tendency to use freedoms to the extent of challenging the very legitimacy of the state. It is, therefore, a civilisational question that how a balance is struck between these two powerful tendencies without abandoning the project of transformation of the human society into a more equitable, peaceful, fair, just and humane global order.

The jurisprudential equilibrium rests not only on the nature of the state which is dependent on quality and character of the rulers but also on the levels of contentment, quality of life, the nature of social institutions and instruments of civil society in mediating the relationships in the society. However, it has been the human experience that the “equilibrium” is never everlasting. It is always open to challenge and therefore, the possibility of disequilibrium. It is not that the restlessness in the society is new to human experience. It has always existed in one form or the other; what distinguishes the contemporary means of expressions of restlessness are the levels of force and forms of violence.

The invention of fire arms and their widespread availability in the global market brought in altogether new challenges to the system maintenance. One of the significant but anticipated fallouts of these trends has been end of the state monopoly of force (which distinguishes the State from other institutions). In liberal theory the origin of the state is conjectured as a product of social contract arrived at through the consent of the individuals. The contract was necessary as relations between human beings were mediated through force and it was that arbitrary force in the state of nature that was brought under the regulation of law. It also maintains that every human being is endowed with reason and since reason is superior to raw emotions and uncultivated impulses it has been possible to arrive at the acceptance of supremacy of law.

It is also postulated that human beings enjoyed unrestrained freedom in the state of nature. Surrendering part of the freedom was a component of the contract. This surrender was in exchange for security. Thus guaranteeing right to security, in a way, has come to define the basic function of the state. It is precisely for these reasons that the state has been given the power to use the force but the force can and should be used only in a way that the procedure mandates. The procedure is evolved in pursuance of the objectives for which the state came into being. Therefore, the essence of any law should necessarily be the concern for the right to life and security of every individual. And every law is an expression of that part of human nature, which privileges the security over unrestrained freedom (Paine 1954).

The question that maintenance of law and order rests on mere passing of laws is problematic. Many liberal scholars interpret law as an end in itself. But it is a part of the historical process that the state in its evolution assumed several responsibilities which were perhaps not envisaged when it originated. These new responsibilities were neither a drift nor negation of its purpose. On the contrary it was more an affirmation of its role in the sense that for maintenance of order there are certain prerequisites such as minimum standard or quality of life. It is common sense that where there is widespread deprivation, there cannot be order. It is juridical ambition to expect a hungry man to be a law abiding citizen.

There have to be ways and means through which people should be able to earn their livelihood to start with and opening and widening up of opportunities to improve their quality of life or what Amartya Sen conceptualised as “endowments and capabilities” (Sen 1999). If such conditions are not created, it is not only that the individual violates the law but the law cannot be enforced because of its poor moral and material base. In fact, Karl Marx argued almost one and half centuries back that equality before the law without equality in concrete existence is juridical illusion (Marx and Engels 1846). This reality calls for “welfarism” and greater equality which become a part of the governance warranting passing of several laws for transformation of the society. It is in this process that the very notion of rights has got enlarged. If the state does not work in this direction there are bound to be eruptions outside the formal legal framework.

As the very notion of the nation state in the developing world is in the process of stabilisation, the global market forces backed by the brutal force of the United States (US) and crude economic forces of the World Bank and International Monetary Fund are compelling these emerging states to fall in line (Chomsky and Herman 1979). A sovereign state and global economic order are contradiction in terms; for societies at different stages of development and enormous cultural diversities and styles of life are being pushed or dragged into the global order or what has come to be described as structural adjustment resulting in ruptures which are evident in different parts of the world: As economic processes are calling for a borderless world, the reactions are also bound to be on a global scale. The uncertainty and discomfort with the new world order reached a point where nobody is able to anticipate which part of the world would be hit at what point of time. It could be New York, Lahore, London or Mumbai. These violent acts of those members of the world who are not able to adjust or those who are rejecting the model are put in the broad category called “terrorism”.

Different Perspectives on Repressive Laws

There are, however, other equally powerful expressions characterised by varied nomenclature – insurgency, extremism, ethnicism, separatism, or Naxalism. The way the state treated Naxalite movement is one of the standing testimonies to the lopsided approach. Every political party in India at one time or the other openly held that it was a socio-economic problem but dealt with it as law and order once the parties came to power. The question under debate is: how and why the nation state has been reacting and responding the way it did to these growing threats to its legitimacy? The way they handled these critical challenges is a sad reflection of the nature of the Indian state. While all the dimensions of this phenomenon need deeper probing.

It would be useful to discuss the origin and changing contours of terrorism, and the way terrorism is interpreted and responded to by the state. Broadly there are two approaches; one is contextualist and the other is confrontationalist.

The contextualists maintain that the origins of the outbursts lie not inside the outbursts but outside the historical and socio-economic processes. They assume that an average human being craves to live an orderly, peaceful and (given the proper conditions and opportunities) a meaningful life. It is this search for order, peace, identity and avenues for creative expression that are at the root of most of the problems. There are a number of ways through which human beings could be divided, deprived and alienated. These undesirable processes could continuously be overcome, if only the mainstream political processes strive towards a responsive and sensitive political system. It is the drift of mainstream politics from the democratic and transformative visions that can be one of the important causes for immediate provocation for protest which can grow into frightful violence. As the violence grows quite often the initial causes are lost sight of and rulers get engrossed with the violence per se and take recourse to different forms of force to deal with the otherwise complex socio-political situation. It is in this process that the outbursts get aggravated into a chronic problem of law and order. The contextualists hold that those dealing with such situations should get into deeper processes and find historical alternative possibilities of dealing with the situation more through imaginative and creative political action than use of brute force.

The confrontationalist approach, on the contrary, maintains that human beings are basically peace loving and therefore prefer an orderly life. But there are always misconceived causes espoused by the misled and crime-prone individuals and groups whose sole purpose is to disturb the social order as that is the only way they know how to express themselves. Such individuals or groups are not amenable to reason. Since the law is rooted in human reason, such rational ordinary laws cannot deal with explosive situations. They argue that these “distortions” should be put down with an iron hand. This is the dominant political view in India and the Bharatiya Janata Party (BJP) represents this view forcefully and this is one party which keeps on reiterating the need for most repressive laws without even an iota of doubt in the effectiveness of those methods. They dismiss attempts at reasoning out the movements as useless, if not a dangerous exercise. They go one step forward and maintain that contextualists are indirect associates and abettors of violence and disorder. It is this logic that lends support to repressive laws. The supporters make use of any quantum of force and the state agencies endorse any level of arbitrary exercise of power. Every law, however repressive it could be, contains elements of reason and built-in restraint.

No law can ever confer infinite power on the state agencies to straight away extinguish the life of even the worst terrorist. For that could be negation of its basic purpose. However, in the course of encountering these movements or violent expressions, the state agencies in most parts of the world have come not to conform to any legal limitations. The confrontationalists lend the necessary support to such arbitrary actions not sanctioned by the law. The state not willing to see the other side enacts law after law empowering itself with repressive and arbitrary power and also takes a very lenient view of all those actions outside the law that the state agencies indulge in. The extra judicial killings or encounters which have almost become systemic represent such serious perversion in the state behaviour.

There is also a new phenomenon of cross border terrorism. There could be several causes for it. In a globalising world order, the states unable to respond to the internal demands can shift the crisis to the neighbouring countries and generate mass fear to divert the public attention. Once a state succeeds in mobilising the public opinion and shifts “the causes” for internal crisis to external adversaries, it becomes difficult for the people to put pressure on their government for solving the basic problems. There are also several instances where nations are at loggerheads with each other for various historical reasons continuously breeding violence. They under this pretext maintain that violence cannot be dealt by the ordinary municipal laws and enact repressive laws which are used not only against the external enemy but internal dissent. Thus cross border terrorism contributes in a large measure to arbitrary exercise of power against ones own citizens.

The Indian Experience

It is in this backdrop one can look at the laws that have been enacted in India as a part of dealing with an “extraordinary situation”, called terrorism as India is one nation which confronts wide-ranging challenges which have come to assume the so called “terrorist forms”. How these challenges are dealt with and what are the implications for human rights can be a useful exercise. If one looks at the history of legislation on terrorism or disturbance, there was the Preventive Detention Act at the advent of independence followed by the Punjab Security Act 1955, Assam Disturbed Areas Act 1955, and the Armed Forces (Assam and Manipur) Special Powers Act, 1958. In the 1960s and 1970s there were two major acts passed in each decade and in the 1980s there were five acts and in the 1990s there were two acts. There are about 20 to 30 repressive acts passed either at the central or the state levels. Of all these four legislations, Armed Forces Special Powers Act, is selected for a critical examination as it has been not only extensively used or misused but has had far-reaching impact on the overall democratic structure and liberties and freedoms of the Indian citizens.

The Armed Forces (Assam and Manipur) Special Powers Act- 1958

This is one of the earliest repressive laws (after Preventive Detention) to be introduced in post-independence India. This is a reflection on several emerging developments and trends in building the nation state, primarily on Indian independence which was certainly a landmark in the evolution of democratic governance as it was a movement that challenged the colonial and imperial forces for their undemocratic and exploitative stranglehold over the subcontinent and challenged the legal and moral basis of their repressive laws like the Rowlat Act. Having fought against such laws, that the rulers in free India should bring a law not qualitatively different from colonial laws in the very first decade after independence is not a promising beginning for democratic India.

This specific law was enacted to deal with the north-eastern region whose process of integration with the Indian state remains an unfinished task. This also shows that problems of territorial and national integration, instead of being solved as a part of the National Freedom Movement, have been left to the wisdom of the post-independent State. That the Indian government had no satisfactory solution to such problems is evident from its responses which lacked political content. North-eastern India has been particularly problematic as certain parts have been claiming autonomy, if not, cessation from the Indian union. As there were rebellious armed assertions, there was the Armed Forces Special Powers Act, 1958 to deal with the problem. The Act states that it is to:

enable certain special powers to be conferred upon the members of the Armed Forces in disturbed areas in the State of Assam and the Union Territory of Manipur.

The Act further states:

if the Governor of Assam or the Chief Commissioner of Manipur is of the opinion that the whole or any part of the State of Assam or the Union Territory of Manipur as the case may be, is in such a disturbed or dangerous condition that the use of Armed Forces in aid of the civil power is necessary, he may, by notification of the official Gazette declare the whole or any part to be disturbed area.

The Act confers the power to any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces to:   

fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or the order, if he is of the opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary.

It also empowers these officers for “prohibiting the assembly of five or more persons, or carrying of weapons or the things capable of being used as weapons or fire-arms, ammunition or explosive substances”. The Act also gives the power to the armed forces to:

arrest without warrant any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence and may use such force as may be necessary to effect the arrest.

In addition, the armed forces have the power to enter and search without warrant any premises, to make any arrest, recover any person to be wrongfully restrained or confined.  The Act guarantees impunity to the armed forces that no prosecution, writ or other legal proceedings shall be instituted except with the previous sanction of the central government against any person in respect of anything done or purported to be done in exercise of these powers conferred by this Act. The only check that is provided in the Act is that any person arrested and taken into custody under this Act shall be handed over to the officer-in-charge of the nearest police station with the least possible delay, together with a report of the circumstances, occasioning the arrest.

After almost one and half decades in 1972 the Act was amended not to contain or tame the arbitrary powers but to extend the Act in addition to the states of Assam and Manipur, to Meghalaya, Nagaland and Tripura and the union territories of Arunachal Pradesh and Mizoram and in 1983 the Armed Forces (Punjab and Chandigarh) Special Powers Act was enacted.8 This Act enlarges the scope of the power of armed forces such as “seize any property reasonably suspected to be stolen property” and added an additional provision:

stop, search and seize any vehicle or vessel reasonably suspected to be carrying any person who is a proclaimed offender, or any person who has committed a non-cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a non-cognisable offence or any person who is carrying any arms, ammunition or explosive substance believed to be unlawfully held by him and may for that purpose use such force as may be necessary to effect such a stoppage, search or seizure as the case may be.

This Act also extends the ambit of search to include “powers to break open locks of any door, almirah, safebox, cupboard, drawer, package or any other thing, if the key is withheld”.

With regard to the impunity, while the earlier Act mentioned protection of persons acting under the Act, this Act adds “protection of persons acting in good faith”.

In 1990 the Armed Forces (Jammu Kashmir) Special Powers Act was enforced in Kashmir.  The Act further enlarged the notion of disturbed areas and dangerous conditions so as to include:

activities involving terrorist acts directed towards overawing the government established as by law or striking terror in the people or any section of the people or alienating any section of the people or adversely affecting the harmony amongst different sections of the people and further enlarged it by adding activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about secession of a part of the territory of India from the union or causing insult to the Indian National Flag, the Indian National Anthem and the Constitution of India.

After five decades of the Act being in force, there was a massive protest from ordinary people in the north-east and there were once an incident of six women in Manipur walking without robes towards the Raj Bhavan in protest against the arbitrary use of the Act by the armed forces. This troubled the conscience of the nation to an extent that the prime minister promised to review, if not repeal the Act. In fact in one of the interactions between the officers of the armed forces and civil rights activists facilitated by the National Human Rights Commission, the then army chief, Shankar Roy Choudhary, did observe that the armed forces should not be drawn into internal civilian conflicts and also was inclined to critically relook at the Armed Forces Special Powers Act.

Conclusion

The question one has to ask is: why did not the Act and its amendments produce the desired impact? There has been no review on the ineffectiveness or failure of the Act to realise its intended purpose! Nor was there an attempt to critically look at the violation of the rights of innocent people by the state agencies. The armed forces hardly realise that they have been posted to sensitive areas to win over the people and not to defeat them. For the defeated can never identify emotionally with a nation state which treated them as adversaries and not as citizens for a long time. It is sad that Parliament never asked the executive this searching question. In the absence of a critical review, the life of the acts go on getting extended conferring more arbitrary powers and enlarging the territorial jurisdiction of the act. This uncritical and mechanical extension and expansion of powers reach a logical limit leading to public protest by ordinary innocent people. The governments which are not reflective and creative neither retrospect nor reflect on the long-term impact of mechanical approach and end up in a vicious cycle: this cycle is nowhere more evident than the subsequent enactment of repressive laws.