Is Hindu Marriage a Sacrament or Contract ?

Marriage is one of the universal social institution. It is established by the human society to regulate the life of human beings. The Hindu Marriage occupies an important place. Hindu Marriage can be defined as religious sacrament in which man and women are bound for permanent relationship for social, physical and spiritual purpose of Dharma and Procreation. Generally a couple shall be said to married only if they had completed the Saptapadi . It refers to completing seven rounds along with the holy fire which is the witness of their marriage. After completing the seventh step the couple legally becomes husband and wife. There is a following passage in Manu Smriti- “ I hold your hand for saubhagya that you may grow old with your husband you are given to me by the just , the creator, the wise and by the learned people”.
The nature of Hindu Marriage involves the transfer of dominion over the damsel, from her father to her husband and which has always been the foundation of peace and order in any civilised society was amongst Hindus, a settled institution with a religious character attached thereto even at the vedic period. If we turn over the Hindu Shastras or if we have a glance over ancient Hindu Jurisprudence, we mostly find that the marriage ceremony is the last of the ten sacraments. Marriage tie a knot which can never been broken and it is a relation established from birth-to-birth. Some Smritikars have also said that the Hindu marriage is so pure and sacrament that even death cannot break off the relation of wife and husband. The main object of marriage according to Hindus is getting of children and the proper performance of religious sacrament for their further generation. In ancient Hindu Law, Women were to be respected and honoured. Manu has said “women must be honoured and adorned by their fathers, husbands, brothers and brother-in-laws. Where women are honoured , there the Gods are pleased but where they are not honoured , no sacred rites yields rewards .” As marriage is said to sacred, it is irrevocable . The other party to the marriage cannot dissolve it at will. Marriage as a sacramental union implies that it is permanent union. Marriage is a tie where once it gets tie it can’t be untied . The marriage is valid, not only in this life for the rest of seven births of life. Later Hindu Law has introduced the system of Divorce because during the ancient time there was no such terms related to divorce or Judicial separations. Manu disapproves the concept of divorce and remarriage. Hindu scriptures holds the views that marriage is at the root of all religious activities. Marriage is primary for the fulfillment of duties towards a family, a society and the basic aim of marriage is Dharma. According to Mahabharata, “The wife is the source of Dharma, Artha, Karma and Moksha”. A man is considered incomplete before his marriage i.e he was only half of his self only after the commencement of the marriage he would be completely born and hence the wife is known as Ardhangini but now after the enactment of Hindu Mariage Act, 1955 Sec 13 DIVORCE and Sec 13(B) DIVORCE BY MUTUAL CONSENT Hindu Marriage is no more a complete sacrament. Widow Remarriage and hence the sacramental character of The Hindu Marriage is done away with it. Hindu Marriage is no more an eternal union puropose which is regarded as unity of two souls for religious and spiritual purposes. The Hindu marriage contemplated by the HINDU MARRIAGE ACT, 1955 hardly remains sacramental.
It is now subject of debate that either Hindu Marriage is a contract or still a sacrament . Marriage is regarded as a highest social relationship of a human being in a society. Sec 5 and Sec 12 of the Hindu marriage Act, are the pertinent provisions to know whether Hindu Marriage is Sacrament or a Contract. So, it can be concluded that though Hindu Marriage has some elements of a Contract but it can’t be regarded as purely a Contract.

THEORIES OF PUNISHMENT AND CRIMINAL LAW SYSTEM OF INDIA

“Crime is the commission and omission of an act which the law forbids or commands under is in pain of punishment to be imposed by the state by proceeding in its own name.”
-Miller

Crime is an act of social deviance. And the society wants to stop every social deviant by exercising social control. This social control can be informal or formal which is exercised through sanctions which can be positive or negative. When it comes to crime society through its formal social control exercise negative sanctions.
Punishment is imposition of hardships in response to misconduct. Thus, the aim of inflicting punishment is to curtail the crime. H. Kelson in his General Theory of “Law and State” described “sanction is socially organized consists in a deprivation of possession- life, freedom or property.”
As the society evolved reactions towards crime changed at every stage. Generalizing those reactions there are three types of attitude towards crime:-

Traditional Approach- This is one of the extreme type of emotion displayed by the society where the wrongdoer is tagged as dangerous for the society. Thus, punishment is inflicted upon him in order to protect the society.

Victim Approach-In the second reaction the criminal is not seen as dangerous element but he is seen as a victim of the circumstances. In this the criminal is a sick who requires treatment.

Preventive Approach- In this the society tries to remove all the elements present that help in making a criminal.

There are two schools which gave different aim and meaning of punishment:-
Utilitarian School- Punishment is awarded to reduce crimes and used as means to end.
Non-utilitarian School- Punishment is not a means to end but an end in itself.
All these approaches and both the schools gave birth to different theories of punishment.

RETRIBUTIVE THEORY

This theory is based on the notion of eye for an eye, tooth for a tooth. It is a vengeance theory. Retributive theory is based on rights, desert and justice.The punishment is such that the wrongdoer should compensate for the wrong committed by him. When a person interferes with other rights, he forfeits and gives up his own rights and submits him to others interference in his life as legitimate. The guilty deserved to be punished and no moral consideration relevant to punishment outweighs the offender’s criminal desert.

It is based on the Roman Doctrine of Poena Tenere Debet Actors Etnon Alios, which means punishment belongs to guilty and not others. Once the wrongdoer pats for his act he admitted to the mainstream of the society.
MERITS
• This is based on utilitarian school. Thus, in this theory punishment is end in itself.
• This theory believes that in proportionate punishment should be given.
•  It  is  impartial and neutral in nature.
DEMERITS
• This theory failed to lay down guidelines or principles for proportionate punishment. Thus, it is difficult task for the judges to measure punishments for crimes.
•  Punishment is inflicted not only for vengeance but also to prevent crime.

EXPIATORY THEORY
This is based on the notion of to pay for the sin committed. This is somewhere close to the retributive theory. The punishment is such that victim is satisfied or adjusted to suffering. The offender will serve the victim and their dependents to compensate the deprivation which will create the sense of repentance and cleansing of heart.
MERITS
• The chain of personal vengeance can be reduced in the society.
• It can prevent the criminal behaviour in the society as it stops the chain of reaction.
DEMERITS
•  This theory is impracticable as it is idealistic.
• Experimentation of this theory is too expensive in terms of public safety and security.

DETERRENT THEORY
The notion of fear is found in this theory. According to this theory the object of punishment is to deter the offender from repeating the same course of conduct so that the persons and property of others may not be harmed. The punishment should be so severe that the criminals will not think of committing it and probable criminals are also deterred committing the same offence. Bentham treated the offence committed as an act of past, which can be used as an opportunity of punishing the wrongdoers in such a way that the future offences will be prevented.
MERITS
• It somewhere succeeds in deterring crimes.
• Dangerous criminals can be eliminated.
DEMERITS
• Severe sanctions sometimes produce ironic results. It may harden the criminal as he is once accustomed with punishment, deterrence loses its strength.

PREVENTIVE
This theory is based on the notion of Prevention is better than cure. Thus, the purpose of this theory is to prevent crime. The offences can be prevented when the wrongdoer’s activities are checked and this check is possible by disablement. This disablement can be of various types and keeping in prison is limited form of disablement. The effectiveness of this theory is based on promptness and proportion factor. If the investigation is delayed the theory will become ineffective.
MERITS
• Criminals are used as means in order to prevent others from committing the sane offence.
DEMERITS
• It defeats the notion of presumption of innocence until proven guilty.
• Its techniques are quite harsh in nature.
•  This  can make criminal more violent rather than changing him to a better individual.

REFORMATIVE
Mahatma Gandhi said -“Hate the sin, not the sinner.” This theory is based on this notion only and this is the most civilized theory of punishment. Now the state act as an welfare state not as one to take revenge for the crime. Human mind can transform. Everyone has a past, present and future and so does a criminal. A human touch is given to Criminal Law and brutalities of punishment are reduced. The purpose of punishment is to crush the criminality in humans not the humanity in criminals. In the case of Narotam Singh v. State of Punjab the Hon’ble Supreme Court held that “Reformative approach of punishment should be the object of criminal law.”However, in the case of M.H Hoskot v. State of Maharashtra, The Hon’ble Supreme Court cautioned judiciary for showing more leniency to the offenders based on reformative theory would amount to injustice to the society. The offences like economic offences the balance has to be maintained between security of society and rights of offenders.
MERITS
•  This theory is reaction to deterrent theory, which has failed to take into consideration the welfare of criminals.
• Mould the behaviour of criminals as nobody is born as a criminal.
DEMERITS
•  High hopes of this theory never materialize and met with failure as hardcore criminals cannot be reformed.
• It requires huge investment.
• It overlooks the claims of victims of crimes.
• It always blames the corrupt social environment not the intention and motive of the criminal.

CRIMINAL LAW SYSTEM OF INDIA
The Criminal Law System in our country has adopted Multiple Approach Theory, as application of any single theory may not render complete justice. The theories of punishment are not mutually exclusive. Hence, judicious combination of all the theories is the latest approach

02-08-2019 डी डी कॉलेज वर्कशॉप

आज दिनाँक ०२-०८-२०१९ को हमारी संस्था विधि सेवा एवं सामाजिक उत्थान समिति द्वारा कार्यक्रम आयोजित कराया गया जो कि डी डी कॉलेज के अंतर्गत बी. ए. के छात्र व छात्राओ तथा शिक्षक समक्ष पूर्ण हुआ। जिसमे हमारे संगठन के सदस्यों ने बड़ी निष्ठा के साथ अपने कर्तव्यो का पालन कर विद्यार्थियों के बीच उन्हें जागरूक तथा नियमो का पालन करने की बात कही। आज के इस कार्यक्रम को सफल बनाने का श्रेय हमारे सदस्यों को जाता है जो उपस्थित होकर इस कार्यक्रम मे शामिल हुए।

आज हरेला दिवस पर आयोजित वृक्षारोपण कार्यक्रम में विधि सेवा एवं सामाजिक उत्थान समिति , आंगनबाड़ी कार्यकर्ता एवं धर्मपुर सुपरवाइजर श्रीमती रचना भट्ट जी , वार्ड ८१ रेसकोर्स के क्षेत्रीय जन एवं वार्ड के पूर्व पार्षद श्री गणेश बड़थ्वाल जी ने अपना अपना योगदान दिया ।

JUDICIAL ACTIVISM

               JUDICIAL ACTIVISM

INTRODUCTION

According to Merriam Webster’s Dictionary of Law “Judicial Activism is the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent, or are independent of, or in opposition to supposed constitutional or legislation intent.”

The concept of judicial activism originated and evolved in USA. Arthur Schlesinger Jr. introduced this term in a Fortune magazine article in 1947. In that he actually characterized all the nine judges of Supreme Court into “judicial activists and champions of self-restraint”. According to him judicial activists believe that law and politics are inseparable and they see judicial results as result-oriented, as no result is foreordained.Thus in words of Learned Hand- “The words a judge must construe are empty vessels into which he can pour anything he will.”

Schlesinger explains for a champion of self-restrain law has fixed meaning, and deviation from those meaning is inappropriate and their violation, no matter which group may benefit from the departure. The connotation of judicial activism has evolved and its meaning has become increasingly unclear.

  • JUDICIAL ACTIVISM IN INDIA

Renowned and eminent judges such as Justice V.R Krishna Iyer, Justice P.N Bhagwati, Justice O.P Chinnappa Reddy and Justice D.A Desai laid the foundation of judicial activism in mid-1970s. According to Justice K.G Balakrishan judicial activism is expansion of judicial review which has raised the popular profile of higher judiciary in India. Thus we can say that judicial activism is the proactive role played by the judiciary in order to protect the rights of citizens and promotion of justice.

We can say that judicial review has three meaning:

  • To ensure fairness in administrative action ;
  • To protect the fundamental rights ; and
  • To rule on questions of legislative competence.

With passage of time judiciary felt that it has a vital role to play so that the basic structure (justice: social, economical and political) can be protected. Thus, the concept of judicial activism was introduced.

  • PUBLIC INTEREST LITIGATION

Public Interest Litigation is actually derivative of judicial activism. It is strategic arm of judicial activism which intended to bring justice within the reach of poor masses, who constitute low visibility area of the humanity. PIL aims at the vindication of rule of law. It provides relaxation to the traditional provision of locus standi. In numerous cases, the court took suo moto cognizance of the matter involving abuse of prisoners, bounded laborers, neglected children etc.

  • INDIAN COURTS EXPANDED THE MEANING OF RIGHTS

We should not forget that our constitution is a living entity, which grows with the society. And this growth of constitutionalism leads to liberal values, which ought to be protected. And this work has been granted to judiciary. It is very much evident from the act of judiciary that how it expanded the scope of Right to life and Personal Liberty which is incorporated under article 21 of our constitution. The courts need to go beyond its boundaries in order to enforce and protect these rights.

  • CRITICISM

The judiciary is an unelected body. Thus, there is no accountability of judiciary by institutional mechanism. The judiciary cannot challenge parliamentary sovereignty.The primary function of judiciary is to resolve disputes.

India follows the notion of trias politica, which means there should be three organs of the state and these organs should maintain their power under certain mechanism. There is separation of powers and these organs need maintain cooperation and coordination.

In words of Dr. Manmohan Singh- “The line between judicial independence and judicial overreach is thin one. A takeover of function of other organ may become case of overreach.”

Several times the Supreme Court and High Courts of India were accused of this overreach. Despite the fact that there is independence of judiciary and it is also termed as watchdog (in order to check arbitrary power of the other organs) it cannot transgress its boundaries.

In India adversarial process of justice is followed. This is a common law tradition in which onus judge is like a passive mould. Thus, they have to remain neutral throughout the proceedings.

The judiciary transgresses its power to such an extent that it applies existing statutes to new factual situations and thus creates new laws.

  • CONCLUSION

While studying correlation between sociology and law, Roscoe Pound contended that law is an agent of social change and the professionals of this field are social engineers. The apex court of our country very well knows the limitation of judiciary and had stated and even warned the High Courts of their limitations. “Judicial activism must not become judicial adventurism; the Bench warned the courts adjudication must be done within the system of historically validated restraints and conscious minimization of judges’ preferences.” Even though framers of our constitution must have not thought of these innovations in judiciary, but there were far-sighted enough to incorporate the concept of constitutionalism.

 

Effects of NRC and Citizenship Amendment Bill 2016

In the 19th and 20th century colonial Assam (1826-1947) witnessed migration from various provinces of British India especially after the Yaboundo Treaty (signed on 24th February 1826). The liberal attitude of the Colonial arrival of peasants from Bengal to Assam in search of fertile lands.
After the independence the Assam state can be broadly divided in to 2 parts Brahmaputra Valley and Barack Valley in the Brahmaputra are Assami speaking people while on the other hand the in the Barak Valley the population speaks the Bengali.
Considering the seriousness of the matter on the influx of illegal migrants, the government of India went on to formulate the immigrants (expansion from Assam) act ,1950. This act which came in to effect from 1March 1950 mandated expansion of illegal immigrants from the state of Assam. To identify illegal immigrants, the national register of citizens was prepared for the first time in Assam during the conduct of 1951 census. It was carried out under a directive of the Ministry of Home Affairs by recording particulars of energy single person enumerated during the census. However, this measure against illegal migrants too suffered a major setback due to the fact that only from October 1952 onwards the regulations of passport and visa became operational between India and Pakistan. In 1965, the government of India collaborated with the government of Assam to expedite completion of the national register of citizens and to issue national identity cards on the basis of this register to Indian citizens in order to aid identification of illegal immigrants. But in 1996 the central government dropped the proposal to issue identity cards in consolations with the government of Assam, having found the project impracticable. Between 1948 and 1917, there were large scale migrants from Bangladesh (then East Pakistan) to Assam. The national register of citizens (NRC) is a register containing names of all genuine Indian citizens residing in India. The register was first prepared and its updating process was put into action after the 1951. The purpose of NRC update is to identify illegal migrants residing in north eastern state who entered Indian territories after midnight on 24/3/1971 and to determine the citizenship of the applicants who have applied tur inclusion of their names in the update NRC.

Difference between NRC and Citizenship amendment Bill 2016

Assam is in the throes of violence yet again over citizenship. In the past couple of days, life in the north-eastern state has come to a standstill as the BJP-led government at the Centre brought in an amendment that will, effectively, grant citizenship to migrants from Bangladesh. Citizenship has been the biggest pain point of Assam’s political and social life during the past several decades. The National Register of Citizens (NRC) kicked up a storm as over 3 million people were said to have been left out of the roster. The Citizenship Bill and NRC are not one and the same thing. Much of the discourse has been seen to have confused one with the other. Here, we take a look at the two and how they overlap.
Citizenship (Amendment) Bill, 2019
The Bill seeks to facilitate acquisition of citizenship by six identified minority communities namely Hindus, Sikhs, Jains, Buddhists, Christians and Parsis from Afghanistan, Pakistan and Bangladesh who came to India before December 31, 2014. Migrants from these communities were earlier given protection against legal action in the years 2015 & 2016 and long term visa provision was made for them. Citizenship will be given to them only after due scrutiny and recommendation of district authorities and the State Government. The minimum residency period for citizenship is being reduced from existing 12 years under the present law to 7 years. The law will not be confined to the state of Assam but will also provide relief to persecuted migrants who have come through western borders of the country to states like Gujarat, Rajasthan, Delhi, Madhya Pradesh. The beneficiaries of Citizenship Amendment Bill can reside in any state of the country and the burden of those persecuted migrants will be shared by the whole country. NRC is a roster of all those who settled in Assam up to the midnight of March 24, 1971. In 1978-79, several local leaders spotted a rapid increase in the number of Muslims in electoral rolls. A six yearlong agitation followed against illegal migrants from Bangladesh, which culminated with the signing of an agreement called the Assam Accord. The Assam Accord mandated that those who settled in the state after the cut-off date of March 24, 1971 would be weeded out and stripped of citizenship rights. Over the next few decades the NRC was remained stalled until the Supreme Court intervened. The apex court ordered the state government to update the NRC by a deadline and monitored its progress. Subsequently, the first draft of the roster was published on 30 July, 2018.

Bone of contention
The general sentiment in Assam with respect to the bill has been that it will defeat the purpose of the NRC.
The Sentinel, a leading local daily, noted in its editorial on January 5 what the Assamese people think of the citizenship bill: The perverse decision of the Centre to ram through the Citizenship (Amendment) Bill, 2016 against the wishes of the people of Assam will result in the migration +of millions of Bangladeshi Hindus to Assam.
NRC and Citizenship Act 1955 had been a burning issue in these days, the citizenship act defines the citizenship can be obtained by the birth, registration, descent, naturalisation, incorporation of territory. The government had passed proposals that Hindu, Sikhs, Buddhist, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan will not be treated as illegal migrants and they cannot be deported to their country. The shortens of the period residency from 12 to 7 years. The bill statics that such a long-draw process illegal immigrant from these six minority communities of the 3 nations “Many opportunities and advantages that may acquire only to the citizens of India, even though they are likely to stay in India permanently”.
The Assam people opposed the bill because it will change the demography of Assam the Shillong cabinet has opposed the bill. The issue is that are addressed in the bill that violates the basic tenets of the constitution. By distinguishing illegal immigrants on the basis of religion, the proposed law goes against the fundamental rights to equality under article 14. The protection of article 14 applies to both citizens and foreigners the bill would hamper what the Assam National Register of citizens sakes to achieve in the state, As the NRC does not distinguish on the basis of faith unlike to 2016 bill.
As the bill is a threat to the cultural and linguistic identity of the people of Assam. The bill passed a law and it would be challenged in the supreme court on the ground of Article 14 and as a more to disturb the NRC process.
But ultimately it was taken up at the behest of the Supreme Court of the India’s order following writ petitions by Assam Public Works. The Supreme Court in 2013 headed by the bench of Hon’ble Justice Rajan Gogoi and Justice Rohinton Poli Nariman, directed the Union Government and the State Government to complete the update of NRC to be implemented in adherence to Citizenship Act 1955 and the Citizenship Rules 2003 in all parts of Assam with the objection to rule out immigrants from the state. Pursuant to the direction of the Supreme Court, the Registrar General and census commissioner of India via its notification number 35 article dated December 2013 notified commencing of NRC. The Supreme Court there upon monitors the entire process of NRC update in Assam.

CONSENSUAL RAPE : MARITAL RAPE “Marriage is union of two Souls”

Marriage lies in the fact that it results in cause and effect of procreation, which is one of the vital and fundamental importance of it. It is a bond of trust, love, friendship which also provides moral and ethical support. It is not only about union of two persons, but also of two families. Marriage is also considered as socially accepted and respected institution of the society.
Now the question is- what an institution is and why marriage is considered as an institution? Institutions are established by way of doing things and comprises of a set of rules and regulations, which primarily focuses on maintaining social interaction and behaviour pattern. It also involves discipline and curbing human emotions and behaviour. Thus, it can be said that institution is established by the people and for the people. Marriage is called as an institution, which is sacrosanct and pious as it binds two people in a sacred bond of love, trust and friendship. And for this they have to go through various rituals and ceremonies, so that in the eyes of society they can be termed as husband and wife.
What if the person who is the life-partner, who should be the protector and should take care of the partner, defiles the body and the soul? The devil lurks in the shadow of her husband and the sacred bond of marriage becomes a necessary evil of the society.
We are not talking about some fantasy, this is the appalling and heinous crime of rape and when it is committed inside the bond of marriage it is called marital rape.
According to section 375 of Indian Penal Code, 1860:- “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—
● Against her will.
● Without her consent. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
● With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
● With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
● With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.”
Marital rape refers to any forceful and unwanted intercourse or penetration when the wife does not consent. But our society is not ready yet to recognize this term. As said by Sir Matthew Hale in 1678 “the husband cannot be guilty of rape committed by himself upon his wife, for their mutual matrimonial consent and contract the wife hath given up her in this kind onto her husband, which she cannot retract.” And our society is following this centuries old logic in 21st century. This exception is also given in section 375 of IPC.
“(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
But how can we forget that consent form the basis of this crime and how one could forget that there is thin line difference between consent and abstaining from resisting the sexual activity. Just because a woman becomes someone’s wife legally, that person has not obtained the right over her body and license to have sex with her without her consent.
Thus, the definition of rape in this patriarchal society is that it cannot be committed against a particular set of women; just in order that husband can fulfill his desire which is irrational and unethical. And in the case of State of Maharashtra v. Madhkar Narayan the Hon’ble Supreme Court held that “Every woman is entitled to her sexual privacy and it is not open for any and every person to violate her privacy as and whenever he wished.”
What are the reasons because of which our society deters from penalising this act? The institution of marriage is sacrosanct, delicate and pious and penalising it will break this bond. The interference by state will infringe the right to privacy and obligations of marriage. The wife will not differentiate between her husband and stranger. And the most epic one is that this law can be misused.
There is no need to protect such an institution in which a woman is stabbed, betrayed and injured by the person who was suppose to protect her and she is treated as a chattel or property. People are not aware of repercussions of this act. Worldwide studies reveals that the health problems caused by this act include HIV, other sexually transmitted diseases, vaginal bleeding, genital infection, chronic pelvic pain and so on. It also causes anxiety, depression, and emotional distress. Even the children health and up-bringing is also hampered by witnessing this violence.
This act also infringes many legal and constitutional provisions. Right to Equality of women is infringed. How could state deny equal protection of law for a particular set of women? In the case of Budhan Chodhary v. State of Bihar , the Hon’ble Supreme Court held that- “Any classification under art 14 is subject to reasonableness test that can be passed only if the classification has some rationale nexus to the objective the act seeks to achieve.”The exception (2) of sec 375, IPC did not fall under this category and hence it is invalid. Right to life and Personal liberty which includes right to privacy, dignity, even right to abstain from sexual intercourse and to be free from unwanted sexual activity. And section 498-A of IPC in this section cruelty has a wide definition which includes physical and mental cruelty.
Talking about international obligations, India is a member state in Convention on Elimination of All Forms of Discrimination against Women (CEDAW) which recommends that marital rape should be criminalized. Article 2(a) of Declaration on Elimination of Violence Against Women term marital rape as violence. And the state has also enacted The Protection of Women from Domestic Violence, 2005 when one act pertaining to conjugal rights did not infringe it, how could other act do so. There are various laws which protect a woman from strangers, but a woman is not only exploited by strangers, this should be engraved in our minds. And talking about misuse of law, every law can be misused, fearing this consequence laws should be not enacted. Many women in this country themselves are reluctant to complain because of various reasons such as their economic dependence on their husband, the future of their children and family, “log kya kahnege” due to societal so-called norms and values and most prominent one they are ignorant about their rights. These all provisions prima facie proves that marital rape is de facto not de jure in India.
Are there any other reasons for this hostile behaviour of a husband toward his wife? Is it correct to generalize all the husbands as devotees of patriarchal society? Like there is always an exception in inorganic formulas of chemistry, our country is also an exception in a general formula. In India a marriage not only bound two people in duties and responsibilities, but also their families. Thus, the people married have to fulfill all the expectations of the family members. Sometimes the husband and wife are so busy in fulfilling their expectations that they are not able to fulfill their partner’s need. And as stated by Sigmund Frend that physical affection and sexual compulsion are ids . Here we are not talking about bodily needs of husband. Maybe the needs of wife are not fulfilled due to various reasons such as lack of space in house, large family members etc. This may lead to irritation and frustration in them and they did not give consent for sexual activities.
In our country we also has the notion of “good news” which is generally asked by the people to newly married couples, within 6 months of their marriage. When a family consisting of 2 to 4 kids or even more, a wife and old parents are economically dependent on the male member . These socio-economic conditions are also responsible for this notion.
We cannot blame only husbands, as this patriarchal society has defined a man as invincible. And in order to meet that very definition they end up in trap.
Thus, this society acts as a vicious cycle not only for women, but also for men.
Inspite of all these notions we forget that a wife is now a separate legal entity. Many countries have enacted this provision, now it is time that India should also look forward for it. We know that India’s maturity and illiteracy did not permit it, but creating awareness and dissolving this false consciousness (which is there so that husband can fulfill their lust and desire) will be a good step.

END NOTES
1. Section 375 of Indian Penal Code, 1860 (herein referred as “IPC”)
2. Sir Matthew Hale quoted in Rosemarie Tong, Women, Sex and Law,94
3. AIR 1991 SC 207
4. Policy Brief, Marital Rape and its impacts: A policy Briefing for Kenyan Members of Parliament.
5. Article 14 of Constitution of India, 1950. This states that state shall not deny to any person equality before law and equal protection of law.
6. AIR 1955 SC 191
7. Article 21 of the Constitution of India, 1950. This states that no person shall be deprived of his life or personal liberty except according to procedure established by law.
8. Sec 498 of Indian Penal Code, 1860 is to protect married women from being subjected to cruelty by husband or his relatives.
9. Violence against women shall be understood to encompass, but not be limited to, the following: (a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation; (b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;(c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.
10. An Austrian Neurologist and founder of psychoanalysis.
11. basic compulsion and desires of human beings
12. Here it means the father of those children and who has to fulfill all the requirements of his family.

Is Preamble a part of Constitution? Can the Preamble be amended under Article 368?

BACKGROUND

The Constitution of India begins with a Preamble . Preamble in the Constitution is a part of the Constitution but it is not enforceable by courts. The Preamble is non-Justifiable that means courts cannot pass any orders against the Government of India to implement the ideas in the Preamble. The Preamble to the Indian Constitution is based on the “Objectives Resolution”, drafted and moved by Pandit Jawaharlal Nehru on 13th December,1946 and adopted by the constituent assembly on 26th November,1949 and came into force on 26th January,1950 celebrate as the Republic day in India The three new words which has been added by 42nd Constitutional Amendment Act on 22/01/1976 are – Socialist, Secular and Integrity. The American Constitution was the first to begin with a Preamble. Liberty, Equality, Republic and Fraternity was adopted from French Revolution 1789-1799. Also the term Justice, Social, Economic and Political was been adopted by Russian  Revolution 1917. The Preamble can be preferred to as the preface with highlights the entire Constitution. Sovereign- It means free to follow internal and external policies. It states that India is neither Dependent nor a Dominion of any other Nation. There is no authority above it. The term “WE THE PEOPLE” in the Preamble states Popular Soverignty. Thus, Soverignty lies ultimately with the people of India. Secular-It means no particular religion is preferred to be followed. The state has no official religion. It also means the state shall not discriminate any citizen in any way on the basis of religion.

  • Securalism is a part of basic structure of the Constitution. The word „Secular‟ was not originally present in the Preamble. It was added thereto by the 42nd Constitutional Amendment Act in 1976. . The Supreme Court in this case held that Secularism was an integral part of basic structure of the Constitution. Socialist-It means no concentration of power and money. It was added after 42nd Constitutional Amendment Act,1976. The Constitution had a Socialist content in form of certain Directive Principle of State Policy.  
  • Democratic-The word “DEMOCRATIC” is deived from the Greek work “DEMOS” which means “PEOPLE” and “KRATOS” means “Authority”. The famous  principle of Abrahim Lincoln(18091865) who laid down Government of the people, By the people and For the people. The people of India elect their Governments at all levels i.e “ONE MAN ONE VOTE” . There are lot of efforts to take democracy to the roots through Panchayats and Municipalities (73rd Constitutional Amendment Act, 1993 insertion of ARTICLE 243 to PART IX and 74th Constitutional Amendment Act,1992 had introduced a new Part IXA which deals with Municipalities in ARTICLE 234P to 243ZG. This is also known as Nagarpalika Act). The Supreme Court held that „Democracy‟ as a basic feature of the Constitution.
  • Republic-The word  “REPUBLIC” is derived from “RES PUBLICA which means “Public Property” in our Preamble it indicates that India has an elected head called as THE PRESIDENT. It means vesting of Political Soverignty in the people.

THE PREAMBLE REVEALS FOUR BASIC INGREDIENTS:

  • Source of authority of the Constitution : The Preamble states that the  Constitution itself derives its authority from the People of India.  
  • Objectives of the Constitution : The Constitution of India signifies Justice, Liberty, Equality and Fraternity as the objectives.
  • Nature of the Indian State : It declares India as a Soverign, Republic, Democratic, Secular and Socialist polity.
  • Date of adoption of the Constitution : The Constitution of India was adopted on 26th November 1949 and came into effect on 26th January 1950.

 

MEANING AND CONCEPT :

The term “Preamble” means the introductory part to the statue of the Constitution. The Constitution opens with a Preamble.Initially The Preamble was drafted by  Sh. B.N Rau in his memorandum of 30/05/1947. The Preamble contains the fundamentals of of the Constitution. In the famous case of “A.K GOPALAN VS STATE OF MADRAS‟  it was contended that the preamble to our constitution which seeks to give India a “Democratic‟ Constitution should be the guiding start in its interpretation and hence any law made under ARTICLE 21 should be held void if it offends the principles of Natural Justice for otherwise the „Fundamental‟ Right to life and personal liberty would have no protection. Thus, the source of  the Constitution are the people themselves from whom the Constitution derives its ultimate law or rule. The Preamble lays emphasis on the principle of Equality which is a basic feature or structure of the Constitution. The Preamble contains highest values and ideas for which India stands. Earlier Preamble was not regarded as a part of the Constitution . It was considered as key to the open Constitution. The eminent Jurist N.A Palkhivala stated that “Preamble as the “identity-card” of the Constitution.

OBJECTIVES ENSHRINED IN THE PREAMBLE:

  • Justice : The term “JUSTICE” in the Preamble embraces three distinct forms- Social, Economic and Political, secured through various provisions of  Fundamental Rights and Directive Principles. Justic promises to give people what they actually entitled to in the terms of basic rights.
  • Equality : The term “EQUALITY” means absence of special previleges to any section of the society, and the provision of adequate opportunities for all individuals without any discrimination. It is incorporated in Article 14 of our Indian Constitution. All the citizens of India should be treaty equally and extended equal protection of law without any discrimination based on Caste, Sex, Creed, Birth and Religion. Similarly Equality of opportunities implies that regardless of socio-economic situations  into which one is born. Equality is a basic feature of the Constitution.
  • Fraternity, Dignity, Unity and Integrity : Fraternity means sense of Brotherhood. It assures the dignity of an individual. The expression “UNITY AND INTEGRITY OF THE NATION” has been substituted by 42nd Constitutional Amendment Act, 1976 to the Preamble of the Constitution .The Fundamental duties (Article 51A) states that it shall be the duty of every citizen of India to promote harmony and the spirit of common brotherhood amongst all the people of India transceding religious, linguistic, religional or sectional diversities. In the Background of India the framers of the Constitution were very  much concerned about the Unity and Integrity of our Independent Country. Pandit Jawaharlal Nehru expressed Fraternity in his words as “ The only possible, real object we, in common with other nations, can have is the object of cooperating in building up some kind of word structure, call it in one word, call it what you like”.
  • Liberty : Liberty is an essential attribute of a free society  that help in fullest development of individuals. Liberty consists of the social, political and economic freedoms. It usually means freedom to do something.  

AMMENDABILITY:

Article 368 has been amended by the 24th and 42nd Amendments in 1971 and 1976 respectively.   

The Preamble has been amended only once so far, 1976 by the 42nd Constitutional Amendment Act where it had added three words in the Preamble of Indian Constitution. Socialist, Secular and Integrity. The Supreme Court in the famous case Keshavananda Bharati vs State of Kerela(1973) held that preamble is the integral part of Indian Constitution so it can only be amended to the subject of the condition so that it won’t destroy the Basic Feature of our Indian Constitution. Article 368 deals with the Powers of the Parliament to amend the Constitution and procedure therefor. 368(1) It states Procedure through which Parliament can amend by way of addition, variation or repeal of any provision of the Constitution in accordance with the procedure laid down in this Article. Article 368 mentions two important things:

  • Procedure for amendment and
  • Methods of amendments.

PURPOSE OF THE PREAMBLE

The purpose of the Preamble serves two purpose:

  1. A) It indicates the source from which the Constitution derives its authority;
  2. B) It also states the objects which the constitution seeks to establish and promote.

The Debated topic as Whether Preamble is a part of Constitution or not. It was decided in five Constitutional Landmark Judgements.

 

  • I.C Golakhnath And Ors v. State Of Punjab

 

Court Verdict : Fundamental Rights cannot be diluted or abridged.

The family of Golaknath held over 500 acres of farmland in Jalandhar, Punjab. In that phase of 1953 Punjab Security and Land Tenures Act, the State Government held that the Golaknath family could keep only 30 acres each. A few acres would go to the tenants and rest was declared “Surplus”. This was challenged by Golaknath family in the Court.

This was challenged by Golaknath’s family in Supreme Court. Here the family filed a petition under Article 32 challenging the 1953 Punjab Act on the ground that it denied them their Constitutional rights to acquire and hold property and practice any profession (ARTICLE 19(f) and ARTICLE 19(g)) and ARTICLE 14 Equality before Law and Equal protection of Law. They also sought to challenged 17th Constitutional Amendment Act which had placed Punjab Act in 9th Schedule declared Ultra Vires. The Court ruled that Parliament could not violate any of the Fundamental rights in the Constitution. The conflict between parliamentary power and judicial protection of Fundamental rights took the final shape in this case. The opinion in Golaknath was rendered by a thin majority of six to five which held that amendmend under ARTICLE 368 of the Constitution was an ordinary law within the meaning of ARTICLE 13(2) of the Constitution. Therefore amendments either under ARTICLE 368 or under other articles are only made by Parliament following the legislative process and are „law‟ for that purpose in ARTICLE 13(2).  The majority judgement in Golaknath case held that the power to amend the constitution was not in ARTICLE 368. It merely provide the procedure to amend the Constitution. According to ARTICLE 13(2) the parliament cannot make any law that abridges the Fundamental Rights‟s contained in PART III of the Indian Constitution . Parliament passes the 24th Constitutional Amendment Act,1971 to refrain the Supreme Court Judgement. Chief Justice Subba Rao held that “ The Preamble to an Act sets out the main objectives which the legislation is intended to achieve”. However, in Keshavananda Bharati Case,1973 the Golaknath Case was overuled.

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  • Keshavananda Bharati v. State Of Kerela

 

Verdict : Parliament can ament any part of the Constitution but could not destroy it’s Basic Feature.

In The Supreme Court of India had outlined the basic structure Doctrine of the Constitution. The Supreme Court rejected the earlier option of Golaknath Case and held that Preamble is a part of the Constitution. The majority 13 Judges Constitutional bench 7:6 , 68 days hearing while upholding the amending power under the 24th Constitutional Amendment Act by relying on the principles of implied limitations of amending power  . It was decide that the amending power of the parliament is distinct from legislative power and this powers wide enough to reach each and every part of the constitution and the parliament has no power to alter the „basic structure‟ of the Constitution. „BASIC STRUCTURE‟ was interpreted to include the Supremacy of the Constitution, The Rule of Law,

Independence of the Judiciary, Doctrine of Separation of Powers, Federalism, Secularism, Sovereign Democratic, The Parliamentry system of Government, The Principle of Free and Fair Elections , Rule of Law and Welfare State. The judgement of this case has to be considered as the greatest contribution of Supreme Court to Constitutional Jurisprudence. The doctrine of  basic structure which is not mentioned in the Constitution has implied the concept on the power of parliament to amend the Constitution. Justice Sikri observed that: a) Preamble is the source of the Constitution viz the people of India.

  1. b) It declares Fundamental Rights and Freedom which the people of  India intended to secure.
  2. c) Preamble is a part of  Indian Constitution but it is neither a source  of any power nor a limitation there on. Later on some more features are added by Supreme Court –

d )   Power to review by Courts.

  1. e)    Dignity of Individual and Right to Livelihood.
  2. f)    Right to Freedom of Religion.

However, it held  that Preamble is a intergral part of the Indian Constitution .  The Preamble was relied on in imposing implied limitations on amendment under ARTICLE 368.  Preamble can be amended but the „basic feature‟ of the Preamble cannot be amended. Amending power cannot change the Constitution. All the thirteen Judges held that 24th, 25th and 29th Amendment Acts were valid.  

 

  • Minerva Mills v.  Union Of India

 

Court Vedict : A law under Article 31c would be protected only if it is made to implement Directive Principles of State Policy in Article 39(b). Minerva Mills was a textile Industry in the State of Karnataka engaged with massive production of silk clothes. On 20st August 1970 the Central Government appointed a committee under  Section 15 of Industries (Development and Regulation) Act, 1951. On 19th October, 1971 The Central Government empowered National Textile Corporation Limited to take over the management of Minerva Mills under Section 18A of the 1951 of this Act. This was challenged by 42nd Constitutional Validity Amendment Act, 1976. Here it was arise the amending power of the Constitution either it is limited or there is inherent limitation. The Judgement was divided in 4:1 Judges.  Therefore the Supreme Court held that the scope of ARTICLE 368 is just to amend the Constitution not to alter the basic structure of the Constitution and also held Sections 4 and 55 of the 42nd Constitutional Amendment Act, 1976 is Unconstitutional. The Supreme Court also laid down strict terms between Directive Principles of State Policy and Fundamental Rights.

 

  • Re:Beru Bari Union v. Union Of India

 

Court Vedict : The Supreme Court stated that executive has no power to enter into an agreement related to give up of a Territory without  any Constitutional amendments.

Beru Bari is a small group of village in Jalpaiguri district of West Bengal which falls under  two stations Bodo and Jalpaiguri. In 1952, Pakistan tried to exploit the Boda station. At that time Prime Minister Jawaharlal Nehru decided to have an agreement with Pakistan regarding Berubari splitting into two parts. President Rajendra Prasad decide to bring the matter to the Supreme Court of India. In this case Beru Bari was questioned wether the premises of the Preamble was a part of Constion or not ? This case was filed challenging the division of  BERU BARI UNION contained in Article 3 of the Indian Constitution i.e Parliament can form new states, Alteration of areas, Boundaries or change the name of states. But the Central Government gave a territory to Beru Bari Union (WEST BENGAL) to the Pakistan. In reply The Supreme Court made a decision that, Centre cannot give a territory to any Country without amending the Indian Constitution. In 1960, A EIGHT Judges Bench held that “Preamble is not a Part of Indian Constitution”. This famous case was overruled in Keshavananda Bharati case which held that” Preamble is a integral part of Indian Constitution” .

 

 

  • Union Of Government v.  Lic Of India

 

In this case, Supreme Court of India has once held that Preamble is an integral part of the Constitution.  

  1. S.R Bommai v.  India

On 11th March, 1994 a Nine Judge Constitutional Bench held that Preamble indicates the Basic structure of the Constitution. The verdict was concluded that the power of President to dismiss a state government is not limited. This case put an end to the arbitrary dismisaal of State Government by the hostile of Central Government.

Can The Preamble be amended under Article 368?

This question was arised for the first time in The Hon‟ble Supreme Court in the very historic case, Keshavananda Bharati vs State of Kerela. Before this case, The Hon‟ble Supreme Court heldthat Preamble is not the part of Constition hence it cannot be amended but later on Beru Bari case was overruled by Keshavananda Bharati case. So far, Preamble was amended only once on 18th December 1976 during the Emergency in India  that was 42nd Constitutional Amendment Act, 1976 which inserted the following words- “Secularism, Socialism and Intergrity” in the Preamble. Any part of the Constitution may be amended but the Basic Structure of the Constitution cannot be amended. The Preamble is used to interpret the provisions of the Constitution in case of matters related to disputes. The Preamble itself provides short summary of the Constitution. On the question majority held that since The Preamble is a part of Indian Constitution thus, it can be amended under Article 368 but the amendment is subject to certain conditions which cannot alter the Basic Structure of the Constitution. .

ROLE OF PREAMBLE IN THE JUDICIAL INTERPRETATION OF CONSTITUTION :

Though the Preamble to The Constitution of India reflects the Basic Structure and the spirit of the Constitution.It represents the entire Constitution in its introductory part. The Preamble proclaims the solemn resolution of the people residing in India. Preamble is the legislation in a nutshell. The salient features of the the Constitution has evolved directly or indirectly in from these objectives enshrined in the Preamble. It also serves as the Protector of the Constitution. The Preamble is so important that it holds the strength of Unity among all. Preamble can be seen to have both contextual and a constructive role in statutory interpretation. Constitution is a living organ so its interpretation is permissible.

Conclusion: To conclude, it won‟t be wrong to say Preamble serves as the spirit behind The Constitution of India. The Preamble assures social, economic, and political justice , liberty of though and expression, belief anf faith, eliminate inequality among all and to provide dignity of every individual. Thus, the Basic Structure of the Constitution should not be alter because it promotes Unity , Equality and Freedom. We regard THE CONSTITUTION OF INDIA as the Supreme Law of our Country. Our Constitution is the World’s longest written Constitution which contains 448 ARTICLES, 25 PARTS and 12 SCHEDULES. So far, there are 103rd Constitutional Amendments and 124th Constitutional Amendment Bill . Thus, the Preamble is regarded as the backbone of our Constitution.