THE CASTE BASED POLITICS IN INDIA
Caste is one among the major factors in politics of India. Independent India has seen intense debates over reverse discrimination, caste-based quotas and reservations.
According to a report by Human Rights Watch, "Dalits and indigenous peoples (known as Scheduled Tribes or adivasis) continue to face discrimination, exclusion, and acts of communal violence. Laws and policies adopted by the Indian government provide a strong basis for protection, but are not being faithfully implemented by local authorities.
Before 1980sMahatma Gandhi and B. R. Ambedkar had radically different approaches to caste esp. over constitutional politics and the status of "untouchables.
Till the mid-1970s, the politics of independent India was largely dominated by economic issues and questions of corruption. But since 1980s, caste has emerged as a major issue.
Mandal CommissionMain article: Mandal commission
The Mandal Commission was established in 1979 by the Janata Party government under Prime Minister Morarji Desai with a mandate to "identify the socially or educationally backward.
The Commission was set up to consider the question of seat reservations and quotas for people to redress caste discrimination, and used eleven social, economic, and educational indicators to determine "backwardness." In 1980, the commission's report affirmed the affirmative action practice under Indian law whereby members of lower castes (known as Other Backward Classes and Scheduled Castes and Tribes) were given exclusive access to a certain portion of government jobs and slots in public universities, and recommended changes to these quotas, increasing them by 27% to 49.5%. L R Naik, the only Dalit member in the Mandal Commission refused to sign the Mandal recommendations, as he feared that well-to-do OBCs would corner all the benefits of reservation.
A decade after the commission gave its report, V. P. Singh, the Prime Minister at the time, tried to implement its recommendations in 1989. The criticism was sharp and colleges across the country held massive protests against it. Many alleged that the politicians were trying to cash on caste-based reservations for purely pragmatic electoral purposes. Rajiv Goswami, student of Delhi University, threatened self-immolation in protest of the government's actions. His act further sparked a series of self-immolations by other college students and led to a formidable movement against job reservations for Backward Castes in India.
Votebank politics The neutrality of this section is disputed. Please see the discussion on the talk page. Please do not remove this message until the dispute is resolved. (August 2009)
Many political parties in India have openly indulged in caste-based votebank politics.
In 1990s, many parties Bahujan Samaj Party (BSP), the Samajwadi Party and the Janata Dal started claiming that they are representing the backward castes. Many such parties, relying primarily on Backward Classes' support, often in alliance with Dalits and Muslims, rose to power in Indian states. At the same time, many Dalit leaders and intellectuals started realizing that the main Dalit oppressors were so-called Other Backward Classes, and formed their own parties, such as the Indian Justice Party. The Congress (I) in Maharashtra long relied on OBCs' backing for its political success. Bharatiya Janata Party has also showcased its Dalit and OBC leaders to prove that it is not an upper-caste party. Bangaru Laxman, the former BJP president (2001–2002) was a former Dalit. Sanyasin Uma Bharati, former CM of Madhya Pradesh , who belongs to OBC caste, was a former BJP leader. In 2006 Arjun Singh cabinet minister for MHRD of the United Progressive Alliance (UPA) government was accused of playing caste politics when he introduced reservations for OBCs in educational institutions all around.
In Tamil Nadu, Dravida Munnetra Kazhagam (DMK) party rose to power under the canard of "Brahmin oppression", resulting in reverse discrimination against the upper caste Brahmins. Many Brahmins have alleged that Tamil Brahmins (Iyers, Iyengars, etc.) have left the state, due to a "hostile atmosphere" prevalent against upper castes in the region.
Back in 1950s, B. R. Ambedkar had criticized the use of caste as a political plan. He anticipated the limitations of using caste as a political resource and instead, emphasized on eliminating the concept of caste from the society.
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THE CHILD MARRIAGE RESTRIANT ACT, 1929
THE CHILD MARRIAGE RESTRAINT ACT, 19291
[1st October, 1929]
An Act to restrain the solemnization of child marriages
Whereas it is expedient to restrain the solemnization of child marriages; It is
hereby enacted as follows:
Comments
Preamble-Use of.- It is true that the preamble and the aims and objects
cannot be used for interpreting the statute. The preamble as well as the aims and
objects of the Act can be used for limited purpose of ascertaining the conditions
prevailing at the time of legislation and for finding out the purpose of the enactment
by furnishing valuable historical material.2
Object and reasons of the Act.- The objects and reasons of the Act are to
be taken into consideration in interpreting the provisions of the Statute and not the
debates in Parliament on the Bill.3
Intention of Legislature.- In Prithvi Pal Singh Bedi v. Union of India,4 it was
held that literal meaning of the statute must be adhered to when there is no
absurdity in ascertaining the legislative intendment and for that purpose the broad
feature of the Act can be looked into.5
Principle of “noscitur a sociis”-Application of.-Where two constructions
are possible, that which would be more conducive to reason and justice is to be
preferred by applying the principle of noscitur a sociis.6
Punctuation marks-Effects.-It is well known that punctuation marks by
themselves do not control the meaning of a statute when its meaning is otherwise
obvious.7
Words, clear, intelligible and unambiguous-Must be given effect to.-If
the language of the statute is clear and intelligible and does not admit of two
1 Published in the Gazette of India, 1927 Pt. V, p. 28.
2 Nagpur Hotel Owners Association v. Corporation of the City of Nagpur, A.I.R. 1979 Bom. 190 at p. 196;
Baboolal v. Direcdtor of Municipal Administration, A.I.R. 1974 Bom. 219 relied on.
3 Chern Taong Shang v. Commander S. D. Baijal, 1988(1) Crimes 524 at p. 529 (S.C.); see also Kameshwar
Singh Srivastava v. IVth Additional District Judge, Lucknow, A.I.R. 1987 S.C. 138 at p. 141.
4 A.I.R. 1982 S.C. 1413.
5 Jumman v. State of Uttan Pradesh, 1988 Cr. L.J. 199 at p. 203 (All.).
6 Sipra Dey, Smt. V. Ajit Kumar Dey, A.I.R. 1988 Cal. 28 at p. 33.
7 Dadaji alias Dina v. Sukhdeobabu, A.I.R. 1980 S.C. 150 at p. 156.
meanings, effect must be given to the words used and thus the intention of the
Legislature must be carried out.1
Mandatory rule and directory rule-Difference.-The difference between a
mandatory rule and a directory rule is that while the former must be strictly
observed, in the
case of the latter, substantial compliance may be sufficient to achieve the object
regarding which the rule is enacted. Certain broad propositions which can be
deduced from several decisions of courts regarding the rules of construction that
should be followed in determining whether a provision of law is directory or
mandatory may be summarized thus: The fact that the statute uses the word “shall”
while laying down a duty is not conclusive on the question whether it is a mandatory
or directory provision. In order to find out the true character of the legislation the
Court has to ascertain the object which the provision of law in question is to sub
serve and its design and the context in which it is enacted. It the object of law is to
be defeated by non-compliance with it, it has to be regarded as mandatory. But
where a provision of law relates to the performance of any public duty and the
invalidation of any act done in disregard of that provision causes serious prejudice
to those for whose benefit it is enacted and at the same time who have no control
over the performance of the duty, such provision should be treated as a directory
one. Where, however, a provision of law prescribes that a certain act has to be
done in a particular manner by a person in order to acquire a right and it is coupled
with another provision which confers an immunity on another when such act is not
done in that manner, the former has to be regarded as a mandatory one. A
procedural rule ordinarily should not be construed as mandatory if the defect in the
act done in pursuance of it can be cured by permitting appropriate rectification to be
carried out at a subsequent stage unless by according such permission to rectify the
error later on, another rule would be contravened. Whenever a statute prescribes
that a particular act is to be done in a particular manner and also lays down that a
failure to comply with the said requirement leads to a specific consequences, it
would be difficult to hold that the requirement is not mandatory and the specified
consequence should not follow.2
Interpretation must further and not frustrate the object of a statute.-
Interpretation of a statute, contextual or otherwise must further and not frustrate the
object of the statute.3
1. Short title, extent and commencement.-(1) This Act may be called
the Child Marriage Restraint Act, 1929.
(2) It extends to the whole of India 1[except the State of Jammu and
Kashmir] and it applies as also to all citizens of India without and beyond India:
1 Chandrabhan Chunnilal Gous v. Dr. Sharwan Kumar Kunnolal Gour, A.I.R. 1980 Bom. 49 at p. 51.
2 Sharif-ud-din v. Abdul Gani Lone, A.I.R. 1980 S.C. 303 at pp. 305-06; see also State of Jammu and Kashmir
v. Abdul Gani, A.I.R. 1979 J. & K. 17 at p. 20 (F.B.); Messrs. Choudhary v. Frick-India Ltd., A.I.R. 1979
Delhi 97 at p. 99.
3 Muddada Chavanna v. Karnam Narayana, A.I.R. 1979 S.C.1320 at p. 1323.
2[Provided that nothing contained in this Act shall apply to the Renoncants of
the Union territory of Pondicherry.]
(3) It shall come into force on the 1st day of April, 1930.
2. Definitions.-In this Act, unless there is anything repugnant in the
subject or context,-
3[(a) “child” means a person who, if a male, has not completed twentyone
years of age, and if a female, has not completed eighteen years of age;]
(b) “child marriage” means a marriage to which either of the
contracting parties is a child;
(c) “contracting party” to a marriage means either of the parties
whose marriage is or is about to be thereby solemnized; and
(d) “minor” means a person of either sex who is under eighteen
years of age.
3. Punishment for male adult below twenty-one years of age
marrying a child.-Whoever, being a male above eighteen years of age and below
twenty-one, contracts a child marriage shall be punishable with simple
imprisonment which may extend to fifteen days, or with fine which may extend to
one thousand rupees, or with both.
Comment
Penal provisions-Interpretation.-The provision authorizing confiscation is a
drastic one. In regard to such a provision it is well accepted that court should place
construction which is in favour of the subject. Where the conjunction used is “or”
unless there are compelling reasons to read “or” as “and” it is well settled that any
word should be given its natural meaning. If it was intended that both the conditions
must be satisfied there was no difficulty for the Legislature to use the expression
“and” instead of “or”.4
4. Punishment for male adult above twenty-one years of age
marrying a child.-Whoever, being a male above twenty-one years of age, contracts
a child marriage shall be punishable with simple imprisonment which may extend to
three months and shall also be liable to fine.
Comment
Whoever-Meaning of.-According to the Shorter Oxford English Dictionary,
Vol. 2, p. 2543, “whoever” means “any one who, any who”. The meaning given in
Webster Comprehensive Dictionary, International Ed., Vol.2 at p. 1437 is “any one
without exception any person who”.5
1 Subs. By Act 3 of 1951, Schedule.
2 Ins. By Act 26 of 1968, Schedule.
3 Subs. By Act 2 of 1978, Sec. 2 (w.e.f. 2nd October, 1978).
4 Somisetti Ramanath v. District Supply Officer, Chittoor, A.I.R. 1979 A.P. 9 at p. 20: see also Kamla Kant
Singh v. Chairman/Managing Director, Bennetta Colman and Co. Ltd., 1988(1) Crimes 106 at p. 109 (All.).
5 Rai Bahadur Seth Shreeram Durgaprasad, Messrs. V. Director of Enforcement, A.I.R. 1987 S.C. 1364 at p.
1369.
5. Punishment for solemnizing a child marriage.-Whoever performs,
conducts or directs any child marriage shall be punishable with simple imprisonment
which may extend to three months and also be liable to fine, unless he proves that
he had reason to believe that the marriage was not a child marriage.
Comment
If marriage of Hindu male below eighteen years of age or female below
fifteen years of age is invalid or illegal.-The marriage of Hindu male below eighteen
years of age with a Hindu girl of fifteen years of age is not invalidated or rendered
illegal by the force of the Child Marriage Restraint Act of 1929. It will remain a valid
marriage binding under the Hindu Law if otherwise performed under any recognized
form of Hindu La. It would be seen that the Child Marriage Restraint Act only
restrains a marriage of minors and that is its
Objective, but does not prohibit marriage rendering it illegal or invalid. It punishes
those persons who arrange that marriage and actively participate in celebrating it.
The minor spouses who get married are not punished under the Act. Once it be
held that the marriage itself is not illegal or invalid under the Child Marriage
Restraint Act, 1929, then a debt incurred by the major members of the family for
marrying a minor member of the family will not be for an illegal purpose as the
marriage is legal and the debt is incurred for the marriage. It may be that the debt is
incurred for the marriage. It may be that the consequence under the law would be
that the major members be punished for their act in making arrangements for
celebration of the marriage.1
“May” and “shall”.-The word “may” implies what is optional, but it should in
some context in which it appears, mean “must”. There is an element of compulsion.
It is power coupled with a duty. In Maxwell on Interpretation of Statutes, 11th Ed., p.
31, the principle is stated thus: “Statutes which authorize persons to do acts for the
benefit of others, or, as is sometimes said, for the public good or the advancement
of justice, have often given rise to controversy when conferring the authority in
terms simply enabling and not mandatory. In enacting that they ‘may’ or ‘shall’ ‘if
they think fit’, or ‘shall have power’ or that ‘it shall be lawful’ for them to do such
acts, a statute appears to use the language of mere permission but it has been so
often decided as to have become an axiom that in such cases such expressions
may have to say the least a compulsory force, and so would seem to be modified by
judicial exposition.” The word “may” even if it was prima facie enabling, the
Legislature may use it in the sense or “must” or “shall”.2
6. Punishment for parent or guardian concerned in a child marriage.
- (1) Where a minor contracts a child marriage, any person having charge of the
minor, whether as parent or guardian or in any other capacity, lawful or solemnized,
or negligently fails to prevent it from being solemnized, shall be punishable with
1 Parasram v. Smt. Naraini Devi, A.I.R. 1972 All. 357 at p. 359.
2 Delhi Administration v. I.K.Nangia, A.I.R. 1979 S.C. 1977 at p. 1980; Sohan Lal v. Hodal Singh, A.I.R. 1979
All. 230 at p. 232.
simple imprisonment which may extend to three months and shall also be liable to
fine:
Provided that no woman shall be punishable with imprisonment.
(2) For the purposes of this section, it shall be presumed, unless and until the
contrary is proved, that where a minor has contracted a child marriage, the person
having charge of such minor has negligently failed to prevent the marriage from
being solemnized.
STATE AMENDMENT
Gujarat. –After Sec. 6 of the principal Act the following section shall be
inserted namely:
7. Offences to be cognizable. –Notwithstanding anything contained in the
Code of Criminal Procedure, 1898 (V of 1898), now new Code of 1973 (2 of 1974),
an offence punishable under this Act shall be deemed to be a cognizable offence
within the meaning of the Code.1
Comment
Family. –The word “family” has to be given not a restricted but a wider
meaning so as to include not only the head of the family but all members or
descendants from the common ancestors who are actually living with the same
head. The term “family” must always be liberally and broadly construed so as to
include near relations of the head of the family.2
3[7. Offences to be cognizable for certain purposes. –The Code of
Criminal Procedure, 1973 (2 of 1974), shall apply to offences under this Act as if
they were cognizable offences-
(a) for the purpose of investigation of such offences; and
(b) for the purpose of matters other than (i) matters referred to in Sec. 42
of that Code, and (ii) the arrest of a person without a warrant or
without an order of a Magistrate.]
8. Jurisdiction under this Act. –Notwithstanding anything contained in
Sec. 190 of the 4[Code of Criminal Procedure, 1973 (2 of 1974)), no court other than
that of a 3[Metropolitan Magistrate or a Judicial Magistrate of the first class] shall
take cognizance of, or try, any offence under this Act.
Comment
Offences under the Act cannot be tried by any Court other than the
Courts referred therein. –There is an express prohibition under Sec. 8 of the Child
Court other than the Courts referred to therein. Even any other Court cannot take
cognizance of such offences. In view of this express prohibition in the special law
which has an overriding effect, it is evident that even though the committing
Magistrate has committed the accused to stand their trial, for offences under the
Penal Code, which are triable by the Sessions Court, will not have jurisdiction to try
1 Ins. By Gujarat Act 11 of 1964, Sec. 2.
2 Baldev Sahai Bangia v. R.C. Bhasin, A.I.R. 1982 S.C. 1091 at pp. 1093-94.
3 Ins. By Act 2 of 1978, Sec. 3 (w.e.f. 2nd October, 1978).
4 Subs. By Sec. 4, ibid.
these offences under the Act. The reason underlying it is that there is an express
prohibition in special law which has got overriding effect over the provisions of
general law.1
9. Mode of taking cognizance of offences. –No Court shall take
cognizance of any offence under this Act after the expiry of one year from the date
on which the offence is alleged to have been committed.
10. Preliminary inquiries into offences. –Any Court, on receipt of a
complaint of an offence of which it is authorized to take cognizance, shall, unless it
dismisses the complaint under Sec. 203 of the 2[Code of Criminal Procedure, 1973
(2 of 1974)], either itself make an inquiry under Sec. 202 of that Code or direct a
Magistrate subordinate to it to make such inquiry.
Comment
Power vested in Magistrate to postpone issue of process. –Any Magistrate
on receipt of a complaint of an offence of which he is authorized to take cognizance
may do one of the two things. (1) He may for reasons to be recorded in writing, if
he thinks fit, postpone the
Issue of process for compelling the attendance of the person complained against.
The content of the power vested in the Magistrate to postpone the issue of process
for compelling the attendance of the person complained against, would also cover
the power of issuing process for compelling the attendance of the person
complained against. (2) After doing one of these two things, the Magistrate may
either enquire into the case himself or he can direct any Magistrate subordinate to
him to make an enquiry only for the limited purpose of ascertaining the truth or
falsehood of the complaint.3
STATE AMENDMENT
Gujarat. –Section 10 is deleted.4
11. Power to take security from complainant. – [Repealed by the Child
Marriage Restraint (Amendment) Act, 1949 (41 of 1949), Sec. 7].
5[12. Power to issue injunction prohibiting marriage in contravention
of this Act. – (1) Notwithstanding anything to the contrary contained in this Act, the
Court may, if satisfied, from information laid before it through a complaint or
otherwise that a child marriage in contravention of this Act has been arranged or is
about to be solemnized, issue an injunction against any of the persons mentioned in
Secs. 3, 4, 5 and 6 of this Act prohibiting such marriage.
1 State of Gujarat v. Fulsinh Bhimsing, A.I.R. 1971 Guj. 1 at p. 6.
2 Subs. By Act 2 of 1978, Sec. 5 (w.e.f. 2nd October, 1978).
3 Jagadeesa Thevar V. Rajabakita Theval, 1971 Cr. L.J. 1350 at p. 1351 (Mad.).
4 Deleted by Gujarat Act 11 of 1964, Sec. 3.
5 Ins. By Act 19 of 1938, Sec. 6.
(2) No injunction under sub-section (1) shall be issued against any person
unless the Court has previously given notice to such person, and has afforded him
an opportunity to show cause against the issue of the injunction.
(3) The Court may either on its own motion or on the application of any
person aggrieved, rescind or alter any order made under sub-section (1).
(4) Where such an application is received, the Court shall afford the applicant
an early opportunity of appearing before it either in person or by pleader; and if the
Court rejects the application wholly or in part, it shall record in writing its reasons,
for so doing.
(5) Whoever knowing that an injunction has been issued against him under
sub-section (1) of this section disobeys such injunction shall be punished with
imprisonment of either description for a term which may extend to three months, or
with fine which may extend to one thousand rupees, or with both:
Provided that no woman shall be punishable with imprisonment.]
STATE AMENDMENT
Gujarat. –After Sec. 12 of the principal Act the following sections shall be
added, namely:
“13. Child Marriage Prevention Officer. – (1) The State Government may,
by notification in the official Gazette, appoint for the whole State or for such part
thereof as
may be specified in that notification, an officer to be known as Child Marriage
Prevention Officer.
(2) It shall be the duty of the Child Marriage Prevention Officer –
(i) to prevent marriages being performed in contravention of the
provisions of this Act by taking such action under this Act as he
deems fit;
(ii) to collect evidence for the effective prosecutions of persons
contravening provisions of this Act; and
(iii) to discharge such other functions as may be assigned to him by
the State Government.
(3) The State Government may, by notification in he official Gazette, invest
the Child Marriage Prevention Officer with such powers of a police officer as maybe
specified in the notification and the Child Marriage Prevention Officer shall exercise
his powers subject to such limitation and conditions as may be specified in the
notification.
(4) The State Government may associate with each Child Marriage
Prevention Officer a non-official advisory body consisting of not more than five
social welfare workers, of whom at least two shall be women workers known in the
area within the jurisdiction of the officer for the purposes of advising and assisting
him in the performance of his functions under this Act.
(5) The terms and conditions of appointment of persons on the advisory
body shall be such as may be prescribed by rules.
13-A. Officer appointed under the Act to be public servant. –The Child
Marriage Prevention Officer appointed under Sec. 13 shall be deemed to be a
public servant within the meaning of Sec. 21 of the Indian Penal Code (XLV of
1860).1
13-B. Protection of action taken in good faith. –No suit, prosecution or other
legal proceedings shall lie against the Child Marriage Prevention Officer appointed
under this Act in respect of anything in good faith done or intended to be done in
pursuance of this Act or of any rules or orders made thereunder.2
14. Power to make rules. – (1) The State Government may, by notification
in the official Gazette, make rules, for the purposes of carrying out the provisions of
this Act.
(2) In particular and without prejudice to the generality of the foregoing
provision, such rules may provide for all matters expressly required or allowed by
this Act to be prescribed by rules.
(3) The power to make rules conferred by this section is subject to the
condition of the rules made after previous publication.
(4) All rules made under this section shall be laid for nor less than thirty days
before the State Legislature as soon as possible after they are made, and shall be
subject to rescission by the State Legislature or to such modifications as the State
Legislature may make during the session in which they are so laid or the session
immediately following.
(5) Any rescission or modification so made by the State Legislature shall be
punished in the official Gazette and shall thereupon shall take effect.”3
1 Ins. By Gujarat Act 11 of 1964, Sec. 4.
2 Ins. By Gujarat Act of 1973, Sec. 2.
3 Ins. By Gujarat Act 11 of 1964, Sec. 4.
Other Measures to Prevent Child Marriages:
Apart from the implementation of the Child Marriage Restraint Act, the
Department has taken the following measures to prevent Child Marriages: -
All the Programme Officers (ICDS) in the districts have been given
instructions to keep a watch on child marriages and report such cases to
District Administration and appropriate authorities for taking action as per
Child Marriage Restraint Act.
Director Panchayats, State Women Commission all the Deputy
Commissioners and Superintendents of Police and Programme Officers have
been circulated instructions received from National Commission for women
to launch Bal Vivah Virodh Abhiyan.
Department has also requested Dowry Prohibition Officers to keep vigial on
Akha Teej & during marriage season to prevent child marriage.
Department has also instructed Programme Officers / Child Development
Project Officers to be vigilant regarding child marriages during marriage
season.
Instructions issued to all the Programme Officers to bring provisions of the
Child Marriage Restraint Act to the notice of all Sarpanches as well as
Pandits, Granthis and Molvees who get the marriages solemnized through a
letter to them. The format of letter to be sent by all Child Development
Project Officers to above mentioned persons periodically given in annexure.
Directions given by the Hon’ble Supreme Court in Writ Petition Civil No. 212
of 2003 conveyed to all Superintendents of Police in the State, Secretary
Home Department, director General Health Department, Director Primary /
Higher Education, Director Panchayat and Secretary, Revenue Department,
Haryana to monitor the implementation of the Child Marriage Restraint Act,
1929 and to give wide publicity to the provisions of the Act to educate the
public about it so that the menace of early child marriage which violates the
provisions of the said act is fully taken care of.
NGOs are being involved by organizing vocational / cultural activities for
children through Education Department.
Awareness against child marriages is being created through Public Relations
Department, Haryana and Haryana State Social Welfare Advisory Board.
