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, gender, possessions, race, religion, etc., are to be treated equally and without prejudice I. Provisions relevant to Social Justice & Empowerment, as a whole Art. Preamble 23 24 37 38 39 39A 46 Title Prohibition of traffic in human beings and forced labour Prohibition of employment of children in factories, etc Application of the principles contained in this Part State to secure a social order for the promotion of welfare of the people Certain principles of policy to be followed by the State Equal justice and free legal aid Promotion of Educational and Economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections
Preamble "......to secure to all its citizens: JUSTICE, social, economic and political; ***** EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation...." are the first, third and fourth goals, respectively, mentioned in the Preamble. III. Fundamental Rights 23. Prohibition of traffic in human beings and forced labour 1. Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. 2. Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them. 24. Prohibition of employment of children in factories, etc. No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
IV. Directive Principles of State Policy 37. Application of the principles contained in this Part The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. 38. State to secure a social order for the promotion of welfare of the people 1. The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. 2. The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. 39. Certain principles of policy to be followed by the State The State shall, in particular, direct its policy towards securing a. that the citizens, men and women equally, have the right to an adequate means of livelihood; b. that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; c. that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; d. that there is equal pay for equal work for both men and women; e. that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; f. that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. 39A. Equal justice and free legal aid The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. 46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections -
The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
EVOLUTION OF INDUSTRIAL JURISPRUDENCE IN INDIA. The evolution of Industrial Jurisprudence in India can be traced back to the period of post Independence. Before the Independence, the industrial jurisprudence existed in a rudimentary form. The paramount concern of the Pre-independence industrial jurisprudence was the amelioration of the working condition of the workers at the factories. There was hardly any deal with the social justice to the working class. It was only after the commencement of our Constitution, that the adequate provisions for the social justice to the workers were inserted. Before the Independence, India was not only a great agricultural country, but also a manufacturing country. But the British Government, as a matter of their policies always tended to discourage the Indian industries. This led to a widespread nationalism in India, which laid emphasis on the boycott of the foreign goods. Further a non-cooperation movement saw its birth that is also called swadeshi movement, which emphasized on the use of indigenous goods and boycott of the foreign goods. The aspect of industrialization in India was based on the program of planning, which was accepted after thirties. It is important to take into consideration that the plantation industry of Assam was the first to attract the industrial legislation. The situation there was that the employers exercised hard practices against the employees. The employees were not allowed to leave the tea gardens. A number of Acts were passed from 1863 onward, but they only protected the interests of the employers. Some other Acts were also passed to regulate the condition. But the Workmen’s Compensation Act, 1923 was the landmark Act. INDIAN CONSTITUTION AND SOCIAL JUSTICE. Industrial Jurisprudence was not in a much developed form before the commencement of the Constitution of India. Before the Independence, the paramount concern of the Government was to ameliorate the condition of the factory workers. It was after the
commencement of the Constitution that the paramount concern of the Government shifted towards the social justice for the labourers, who constituted the bulk of the population. Bhagwati J., in a landmark case opined that concept of justice does not emanate from the fanciful notions of any particular adjudication but must be founded on a more solid foundation1. Justice Gajendragadkar opined that “the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the idea of welfare state”2. The Indian Constitution also enshrines the idea of social justice as one of the objectives of the State. Some of those provisions are as follows:
The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life3.
The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations4.
The State shall, in particular, direct its policy towards securing5 a. that the citizen, men and women equally, have the right to an adequate means of livelihood; b. that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good; c. that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; d. that there is equal pay for equal work for both men and women;
1 2 3 4 5
e. that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; f. that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
SOME IMPORTANT LABOUR ENACTMENTS IN INDIA. The salient features of the Central and State Labour Acts in force in the district are given hereunder: 1. The Indian Factories Act of 1948 provides for the health, safety and welfare of the workers. 2. The Punjab Shops and Commercial Establishment Act, 1958, regulates the conditions of work and terms of employment of workers engaged in shops, commercial establishments, theatres, restaurants, etc. 3. The Punjab Maternity Benefit Act, 1943, provides for the grant of cash benefits to women workers for specified periods before and after confinements. 4. The Employment of Children Act, 1938, prohibits the employment of young children below the age of 15 years in certain risky and unhealthy occupations. 5. The payment of wages Act, 1936, regulates the k\timely payment of wages without any unauthorized deductions by the employers. 6. The Minimum Wages Act, 1948, ensures the fixation and revision of minimum rates of wages in respect of certain scheduled industries involving hard labour. 7. The Industrial Disputes Act, 1947, provides for the investigation, and settlement of industrial disputes by mediation, conciliation, adjudication and arbitration. There is scope for payment of compensation in cases of lay-off and retrenchment. 8. The Industrial Employment (Standing Orders) Act, 1946, requires employers in
Industrial establishments to define precisely the conditions of employment under them and make them known to their workmen. These rules, once certified, are binging on the parties for a minimum period of six months. 9. The Workmen’s Compensation Act, 1923, provides for compensation to injured workmen of certain categories and in the case of fatal accidents to their dependants if the accidents arose out of and in the course of their employment. It also provides for payment of compensation in the case of certain occupational diseases. 10. The Indian Trade Unions Act, 1926, recognizes the right of workers to organise into trade unions, when registered, have certain rights and obligations and function as autonomous bodies. 11. The Employees’ State Insurance Act, 1948, provides for sickness benefit, maternity benefit, disablement benefit and medical benefit. 12. The Employees’ Provident Fund Act, 1952, seeks to make a provision for the future of industrial worker after he retires or in case he is retrenched, or for his dependents in case of his early death. The Punjab Industrial Housing Act, 1956, provides for the administration allotment, realization of rent, etc., in connection with quarters constructed under the Subsidized Industrial housing Scheme6. SOCIAL CONFLICTS Peter Worsley in ‘ The Third World’ writes “ In those countries which fail to achieve the take-off and relapse into the hungry frustrations of stagnation or regression,all kinds of conflict from anarchic protest to regional schism or even communist revolution could flourish. A revolutionary leadership could easily replace those nationalist parties which have lost their social reforming zeal”. The state can be impervious to the ascensive zeal for social reform only at its own peril. Social inequality and social injustice as starting points of a vicious circle wherein they are perpetuated cannot be the situation a welfare state seeks to protect from the dynamics of positive change which as a natural force of
unending frustration expresses by peaceful means in principo and by violence as dernier ressort if the state errs by protecting the vested interests of inequality and injustice and fails to discharge its responsibilities towards positive social change.
SOCIAL AWAKENING IN INDIA The veteran journalist Shri.D.R.Mankelkar in his book titled “A Revolution of Rising Frustrations” beautifully analyses the situation of ascensive social awakening in India. “ The fact is that the worm is at last turning, falsifying the prophets who have averred that the Indian masses are too underfed, too lethargic, and too fatalistic to rebel against their fate and violently wrest from the rulers their elementary human right-the right not only to survive but to improve their lot. “ The new awakening roused the esurient expectations of the long-repressed and infested segments of the gens de peu and fomented their neoteric hopes of being extricated from age- old repression. The government of democratic India responded favourable to the aspirations of the infaust segments of its populace, non obstante the not-so-inopinate resistance from the privileged lobbies, by enacting legislations with the potential for far-reaching changes towards establishing social isonomy and justice. However , the zest in enacting the legislations is not amated by the political will to enforce them, though some isolated attempts were made here and there. Experience in the field dictates that some thought should go to legislation and their enforcement to make the whole the modalities of the social social justice. CHALLENGES OF SOCIAL EQUALITY As French thinker Augustan Compete noted, a nouveau regime can emerge only if man assumes responsibility for his actions and makes his own society. The changes in social institutions do not occur by themselves, but by a positive moral desire and commitment in that direction. This active aspect of social change manifests in intellectual assertions for deliberate social legislations and their effective enforcement. The theory of “ Challenge and response” as expounded by the great British historian Arold Toynbee, points out that a society can grow if it can constructively respond to challenges. The
process genuinely effective as a vehicle for faster growth towards social equality and
challenges are often social and internal and every civilisation as a facet of the society can learn from the failings of quondam civilisations. Active responses to the extant gauntlets of social equality and social justice against the background of nonfeasance should be the foundation on which social legislation and its enforcement mechanism should be broadly based. SOCIAL JUSTICE IN INDIAN CONSTITUTION The Indian Constitution in its preamble preconises social justice and quality of status and opportunity to all the article 14 constates fundamental rights while it declares that the state shall not deny to any person equality before law, or equal protection of the law. The Article 15 interdicts any kind of discrimination on grounds of caste, creed, sex, birth etc. However, the Constitution recognised the inadequacy of legal eqality in meeting the exigencies of social justice when it recognised the necessity of special measures to uplift socially deprived segments and constates in sub-section (4) of Article 15 that the constitutional provisions do not prevent the states from making any special provision for the advancement of any socially and educationally backward classes of citizens or the scheduled castes and scheduled tribes. This exception in the constitution to legal isonomy is the cornucopia of most social legislations intended to misprise the crude ancien regime and usher in a dream world of social equality and social justice. SOCIAL LAWS Law is an instrument of both the continuity of social behaviour and of social change. Manu had said, “ Immemorial custom is transcendent law” Social consuetudes metamorphose into social laws in rerum natura and perpetuate social customs. Professor B.Kuppuswamy in his book “ Social Change in India” writes about two functions of the law according to this view is social control and the major problem of law is to design the legal sanctions to minimise deviances and to maintain social stability. According to the other view, law could be more dynamic. It has not only the function of social control but it has also to bring about social change by influencing behavior, beliefs and values”. The social laws of India are devised to bear the kiaugh of the dynamic function of bringing about social change by influencing behavious, beliefs and value in addition to social
control. In Indian society where social inequalities more suo, form the bedrock of living for historical reasons and embedded in the Indian psyche as consuetudes and basic social rules more majorum, the awakening and metabasis to new values of social equality and social justice from the deep slumber of a millennium are not easy to come by. Though isolated calls for certain changes are heard mostly from the self-made spokesmen of the oppressed classes because of the influences of liberal western thoughts, the albatross of orchestrating these thoughts to the mosaic of the laws of the land falls on the government. Social laws function as catalysts of social change in the Indian situation. SOCIAL CHANGES THROUGH LAWS IN INDIA Most of the important social laws were enacted in India in the face of plangent opposition from reactionaries inveterated in the terra firma of the past practices. The queasy practice of polygamy was made hors la loi and divorce was legalised by the Hindu Marriage Act of 1955. The barbarous praxis of untouchability was made punishable by enactment of the Untouchability (Offences) Act in the same year in conformity with Article 17 of the Indian constitution. The Hindu Succession Act of 1956 is a meith in bringing daughters on pariel with sons in a respect of property inheritance. The Hindu adoption and Maintenance Act of 1956 straightened the position of women in regard to the right to adopt. The Dowry Prohibition Act of 1961 tried to deliver nubile colleens from the menace of dowry. The Factory Act of 1948 raised the minimum age of workers to 14 years and provided for annual medical examination of minor workers. The Employment Exchange Act of 1959 provided for state help to unemployed citizens to get jobs. The children Act of 1960 provided for special care of children. All these incipient legislations of independent India on social matters were enacted as vindicated by the directive principles of state policy in line with the fundamental rights enunciated in the Indian Constitution. Article 24 of the Constitution sui juris interdicted employment of children below 14 years of age in factories. British India too saw much of the momentous legilsations conducive to change and social justice. The Sati prohibition Act 1829, the Hindu Widow Remarriage Act of 1856, the Female Infanticide Prevention Act of 1870 , the Special Marriage Act of 1872 providing for civil marriages and inter-caste marriages as amended in 1923, the Child
Marriage Restraint Act of 1929 the Payment of Wages Act of 1939 providing for regular payment of wages, the Industrial Dispute Act of 1929 providing for settlement of disputes, the Trade Union Act of 1926 which legalised trade unions the Workmen’s Compensation Act of 1923 providing for compensation to workers for accidents, disablements and death on duty, the Act of 1922 defining a child and preventing a child below 12 years for employment, the Act of 1931 and its 1946 amendment reducing hours to work a week are major keeks to social change via social laws. The trend to usher social change through new legislations or amendments to old ones is en train even in this neoteric age. The Debt Relief Act of 1976, the Bonded Labour Abolition Act, the Protection of Civil Right Enforcement Act of 1976 and amendments thereon, the 1983 amendments to the Dowry Prohibition Act are important instances of such a nisus.
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