Criminology

Social Legislations and Crime

Historical Accounts of Social Legislations in India

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Quadrant I- Description of the Module

Description of Module Subject Name Criminology Paper Name Social Legislations and Crime Module Name/Title Historical Account of Social Legislations in India Module Id 2 Pre-requisites A general understanding of British social policies and history is required to understand this module properly. Objectives  To elaborate several social evils and practice prevailing in India.  To discuss social legislations which were enacted during colonial and post colonial India to eradicate these social evils.  To observe how far these legislations were able to address the problem. Key Words , , Slavery, Widow Remarriage, Purdah System, Untouchability, Caste, Devdasi.

Quadrant- II- E-Text

Introduction

India is the oldest surviving civilization in the world. This is the land where the notion of Dharma or rule of law flourished since millennium. Most of the ancient legislations are recorded into Dharma Sutras and Dharma Sastras. The most significant among them are Gautam and Baudhayan Dharmasutra, Manu Smriti, Yajnavalkya Smriti, Narad Smriti, Brihaspati Smriti etc. Manu is known as the first law giver of India. The first codification of laws was done by him.1 The Vedas, two epics Ramayan and Mahabharata and Arthasastra of Kautilya are also full of the legislations and norms to govern the society.

During Mughal period Emperor Akbar took measures through various legislations to remove social tension from the Indian society and purge the existing social evil such as: abolition of Jiziya tax, discouragement to child marriage, encouraged to widow remarriage, restriction on infanticide and prohibited sati system, abolished slave trade and abolished the practice of converting the prisoners of war into Islam.

By the time the British came to India, the socio-economic condition of women folk was pitiable. Several evil practices such as the practice of Sati, the Purdah system, child marriage, female infanticide, bride price, devdasi system and polygamy had made their life quite miserable. The place of women was confined to the four walls of her house. The doors of education had been shut for them. Economically also her status was miserable. There was no social and economic equality between a man and woman. A Hindu woman was not entitled to inherit any property. She was completely dependent on men. During the 19th and 20th centuries some laws were enacted with the sincere efforts of social reformers, humanists and some British administrators to improve the condition of women in Indian society.

Concept and Objectives of Social Legislations

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Social legislations are the laws to protect the weak, unemployed, women, children disabled, elderly and other such vulnerable sections of the society. Social legislation aims to restrain the behavior of the individual and groups in the social structure. Due to the selfish motives and indivsualistic tendencies of the men they tend to clash with other for the sake of gains. Legislations tend to coerce the citizens to avoid clash with their fellow citizens. The fear of punishment can act effective deterrent against any unruly and violent behavior. It can ensure harmony in the social system and can provide opportunities to the netizens for fair play. India being a welfare state aims to ensure the fundamental rights and basic human rights to every member of the nation. The prime objective of social legislations are to provide better quality of life and to address various social problems like juvenile delinquency, child labour, infanticide/feticide, widow burning etc.

Social Legislations in Modern India

The British due to their mercantilist interest had no interest in the reforming Indian society. They had the fear that any interference in the matter of custom and religious issue may hamper their economic interest. So they followed a policy of indifference and caution in the social issues. However they were the great critic of Indian custom and tradition and wished to create an ideological hegemony on the Indian mind that Christian civilization of the occident is superior and orient is backward and wretched. The theory of Civilizing Mission, White Man’s Burden and Oriental Despotism were created to justify their illegal rule over India.

The rise of social and religious movements in post 1857, draw the attention of the British administration towards the existing social evils. The propaganda carried out by the Christian missionaries also stirred the minds of the educated Indians. Western thought and education and views expressed in different newspapers and magazines had their own impact. Some of the British administrators like Lord William Bentinck who was influenced by liberalism had taken personal interest in the matter. There were primarily two areas in which laws were enacted, laws pertaining to women emancipation and the caste system.

Table 1 Colonial Legislations in India

Social Legislations Issue Year Reformer Bengal Regulation XXI Infanticide 1795 - Bengal Regulation III Infanticide 1804 - Sati Regulation XVII Sati Abolition 1829 Raja Ram Mohan Roy Indian Slavery Act Slavery 1843 -

Caste Disabilities Removal Act Conversion 1850 - Hindu Widows Remarriage Act Widow Remarriage 1856 Ishwar Chandra Vidyasagar Female Infanticide Prevention Birth Registration & 1870 - Act Infanticide Native Marriage Act Child Marriage 1872 - Age of Consent Act Child Marriage 1891 B M Malabari Special Marriage Amendment Child Marriage 1923 - Act Act of 1925 Devdasi System 1925 Dr.Muthulakshmi Reddi Sharda Act Child Marriage 1930 HarBilas Sharda

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Legislation for Sati abolition:

Burning widows on the funeral pyre of the deceased is an age old evil practice in India. It was more prevalent among the ruling class. But later on it became a general practice. A campaign against sati was undertaken by missionaries like William Carey and William Wilberforce, to increase missionary activity in India. Raja Ram Mohan Roy’s Brahmo Samaj also spearheaded the campaign against sati.2Ram Mohan Roy took the shastric prohibitions of sati from Parashar Samhita. He developed arguments and created campaign for the abolition of the sati. The British initially tried to regulate Sati. (Desai, 1998:295)

Bentinck was alarmed by the rise of sati cases. The records of the East India Company account for 8135 deaths attributed to Sati from 1813 to 1828. (Keith, 1922:208-26) Bentinck adopted a cautious approach. He surveyed secretly on three issues: whether the army would revolt, whether legislation was advisable and whether Hindu resistance could be contained. When he got convinced that army would cause no problem then Bentinck passed the Sati Regulation, XVII of 1829. The regulation was unequivocal in its condemnation of Sati, declaring practice of Sati, or, burning or burying alive widows illegal and punishable. It made zamindars, petty land owners, local agents and officers in charge of revenue collection especially accountable for immediate communication to the officers of their nearest police station of any intended sacrifice of the nature described. In case of willful neglect the responsible officer was liable to a fine of Rs.200 or six months in jail for default. The ban was challenged in the courts, and the matter went to the Privy Council in London, but was upheld in 1832. Other company territories also banned it shortly after. Sati remained legal in some princely states. Jaipur was the last such state to ban the practice in 1846.

In September 1987, Roop Kanwar became sati on the funeral pyre of her husband at Deorala village of Sikar district in Rajasthan. (The Hindu, Sep 18, 1987)The incident shocked the country. In October the state government promulgated The Rajasthan Sati (Prevention) Ordinance 1987. Due to widespread demand both house of the Indian Parliament passed The Commission of Sati(Prevention) Bill, 1987 which made any attempt to commit, abet or glorify sati punishable.

Legislation against Infanticide:

Female infanticide was another inhuman practice afflicting the 19th century Indian society. It was particularly in vogue in Rajputana, Punjab and the North Western Provinces. Colonel Tod, Johnson Duncan, Malcolm and other British administrators have discussed about this evil custom in detail. There were several reasons responsible for this practice such as- family pride, the fear of not finding a suitable match for the child etc. Therefore, immediately after birth, the female infants were being killed either by feeding them with opium or by strangulating or by purposely neglecting them. Some laws were enacted against this practice in 1795, 1802 and 1804 and then in 1870. The Female Infanticide Prevention Act 1870 made the killing of girl child punishable. It authorised the police to maintain the register for the birth and death of infants. The Act had the provision of a prison sentence of six month and a fine of Rs. 30, 000 for violating or disobeying the Act. Section 6 of the Act empowers the police to take away the female child from its parents if it is noticed that the child is being ignored or endangered.

However, the practice could not be completely eradicated. Today there are states like Haryana (879), Delhi (868) and Chandigarh (818) are poor regarding the male-female ratio. (Census of India, 2001)‘Beti Bachao, Beti Padhao’ slogan by the Narendra Modi government is a welcome move. There is a need of increased awareness to save the vanishing daughters.

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Figure 1 Process of Formation of a Legislation

Awareness Movement of the Social against the Legislations Evil Evil

Legislation for Widow Remarriage

Widow Remarriage was widely prevalent in ancient India. In course of time due to increasing rigidity the practice was discontinued. By the first half of 19th century, there were lakhs of widows leading a life of solicitude, neglect and social anathema. Social reformers took the cause of widows and popularise widow remarriage by writing in newspapers and contemporary journals. Prominent among these reformers were Raja Rammohan Roy and Iswar Chandra Vidyasagar. They carried out large scale campaigns in this regard mainly through books, pamphlets and petitions. Vidyasagar researched through the Vedic texts and find out that Vedas sanction widow remarriage. He discovered that the Vedic women enjoyed more rights and privileges. In 1856 the legislature passed the Widow Remarriage Act, 1856.

Legislation against Child Marriage

The practice of child marriage was another social stigma for the women. In 1846, the minimum marriageable age for a girl was only 10 years. Due to the efforts of Ishwar Chandra Vidyasagar, the Act of 1860 was passed raising the age of consent for married and unmarried to ten. In November 1870, the Indian Reforms Association was started with the efforts of Keshav Chandra Sen which vigorously campaigned against the child marriage. A journal called Maha pap Bal Vivah (Child marriage: The Cardinal Sin) was also launched with the efforts of B.M. Malabari a Parsi from Bombay and a journalist by profession to fight against child marriage.

In 1891, through the enactment of the Age of Consent Act, marriageable age was raised to 12 years. The punishment for the violation of this Act was equal to . (Veer, 2001:96) It received support from the Indian social reformers like B M Malabari, Pandita Ramabai and several women’s organisation. The Bill was opposed by several orthodox Hindu leaders like B G Tilak on the charge of interference in the Hindu faith and religion. (Heimsath, 1962:491-506)

In 1929 Child Marriage Restrained Act, 1929 was passed and it came into force in 1930.Through this Act the minimum age of marriage for girls was raised to 14 years and for boys it was raised to 18 years. It is also called Sharda Act due to pivotal role played by Judge HarBilas Sharda in the passing of this Act. Several women’s organisations like All India Women’s Conference, Women’s Indian Association campaigned for passing the Act. This was the first Act where women fought and worked in an organised way to get the bill pass. They were determined not to guide by the ancient laws which shows their zest for modernity and it also brought the liberal feminism to the forefront. (Forbes,

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1998:71-82) Even today there are some parts of the country like Rajasthan where we can witness the occurrence of mass child marriages.

Legislation and Purdah System

Voices were raised against the practice of Purdah during the 19th and 20th century. The condition of women among the peasantry was relatively better in this respect. Purdah was widely prevalent in North India. In Southern part this tradition was almost absent. The Indian Freedom Struggle brought the women folk from the four walls of their houses and gave a jolt to the purdah system. Mahatma Gandhi wrote, “The sight of the screen made me sad. It pained and humiliated me deeply…Let us not live with one limb completely of partially paralysed… Let us tear down the purdah in one mighty effort.” (Grover, 1998:398) However no specific legislation was framed to abolish the system. The system still continues in large part of the country especially in north India.

Legislation against Caste and Untouchability

The system of caste had become the bane of Indian society. The caste system was primarily based on the fourfold division of society viz. Brahmins, Kshatriya, Vaishyas and Shudras. On account of their degradation in their social status, the Shudras were subjected to all kinds of social discrimination. In the beginning of the 19th century the castes of India had been split into innumerable subcastes on the basis of birth.

Raja Ram Mohan Roy invoked the authority of Mahanirvana Tantra, an old religio- sociological work of Hinduism to support his view that caste should no longer continue. Brahma Samaj opposed to rigid social divisions and implied: “There can’t be a surer truth than this that high destiny can’t be fulfilled without the utter destruction of the supreme root of all our social evils, the caste system.” (Desai, Ibid: 237) The Caste Disabilities Removal Act, 1850 was passed by the government of Lord Dalhousie. It ensures that any Indian converting to Christianity is not deprived of his right of inheritance.

Abolition of’ untouchability became a major issue of the 19th century social and religious reform movements in the country. Mahatma Gandhi made the removal of untouchability a part of his constructive programme. He brought out a paper, The Harijan, and also organised the Harijan Sevak Sangh having it’s headquarter at Delhi. Gandhi declared, “Untouchability is a crime against God and Man.” (Kumarappa, 1954:57)

Bhimrao Ambedkar dedicated his life for the welfare of the downtrodden. In Bombay, he formed a Bahiskrit Hitkarini Sabha in July 1924 for this purpose. Later, he also organised the Akhil Bharatiya Dalit Varg Sabha to fight against caste oppression. Jyotirao Phule in Western India and Shri Narayana Guru in Kerala respectively established the Satya Sodhak Samaj and the Shri Narayana Dharma Partipalana Yogam to include self-esteem among the downtrodden. In the Madras Presidency also the beginning of 20th century witnessed the rise of Self-respect Movement of E.V. Ramaswamy alias Periyar. In order to eradicate this evil practice many other individual and institutional efforts were also made. These movements were directed mainly in removing the disabilities suffered by Harijans in regard to drawing of water from public wells, getting entry into temples and admission into schools.

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After independence Article 17 of the Indian constitution made practice of untouchability in any form illegal. This is one of the few fundamental rights against individuals. In order to further weaken the practice, the Indian Parliament passed Untouchability (offences) Act in 1955. This Act was further amended and renamed in 1976 as Protection of Civil Rights Act, 1955. It made provision of fine and imprisonment in case of denial of basic rights to the concerned groups.

Legislation against Devdasi System

Devdasi system flourished in India since ancient time. They used to get patronage from the rulers. (Chakraborty, 2000: 67, 69) However during British period several social reformers like Raja Ram Mohan Roy, Ishwar Chandra Vidyasagar, Govind Ranade, Mutthulakshmi Reddy considered it evil since it leads to temple prostitution. However only after 1880 a strong group of reformists including educated middle class such as doctors, journalists, administrators and social workers advocated for the abolition of Devdasi system and dedication ceremony of the girls to the temple deity. They created a public campaign by organising academic gatherings such as conferences and seminars. There was a rise of venereal diseases in the last decade of 19th century in India mostly among the soldiers. Since the devdasi were equated with prostitutes, the British government passed the order for the registration of all prostitutes including devdasis. However revivalists like Theosophist advocated for the practice of Devdasi and considered their dance as manifestation of divine. The Bombay Devdasi Protection Act, 1934 made dedication of girls to temple illegal and sanctioned the provisions that marriage of such girls are legal and children born from such marriage were to be treated as legitimate. Those found involved into forcing the girl into dedication were to face an imprisonment of one year, a fine or both. After independence The Madras Devdasi (Prevention of Dedication) Act, 1947 declared the Devdasi system illegal in Madras Presidency. Subsequently, the Karnataka Devdasis (Prohibition of Dedication) Act of 1982, Andhra Pradesh Devdasi (Prohibition Dedication) Act,1989 and Goa’s Children Act, 2003 were implemented to abolish the system of devdasi for good in India. (Soneji, 2012:112-14)

Legislation against Slavery

The slave system in India was quite different in compare to Roman and Greek tradition where slaves were treated, bought and sold like commodities. The Greek traveller, Megasthenese who visited India during Chandra Gupta Maurya period could not notice the presence of slaves in India because slaves in India were mostly acted as domestic servant and they were treated well unlike the slaves in the west. Slavery was banned in the British Empire in 1833 and compensation was paid to the slave owners. After 10 years by Act V of 1843 slavery was declared illegal in India. This led to the slave emancipation without paying any compensation to the slave owners. The Penal Code of 1860 also made slavery illegal. However the actual practice of slavery continued. It had a visual impact on the export and import of slaves but agricultural slavery remained intact.

Summary

 Social legislations in India have a long history. Dharma Sutras and Dharma Sastras were the earliest treatise containing social legislations and norms to deal with civil and criminal cases.  In medieval India Akbar took keen interest to prevent social evils like sati, infanticide, child marriage and slave trade.

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 The government of Lord William Bentinck passed the Sati Regulation, XVII of 1829 banning Sati. The efforts of Raja Ram Mohan Roy and several other reformers were equally memorable in this regard.  The Female Infanticide Prevention Act 1870 made the killing of girl child punishable. It authorised the police to maintain the register for the birth and death of babies.  By Act V of 1843 slavery was declared illegal in India. This led to the slave emancipation without paying any compensation to the slave owners.  The Bombay Devdasi Protection Act, 1934 made dedication of girls to temple illegal. The Madras Devdasi (Prevention of Dedication) Act, 1947 declared the Devdasi system illegal in Madras Presidency.  The Caste Disabilities Removal Act, 1850 was passed by the government of Lord Dalhousie. It ensures that any Indian converting to Christianity is not deprived of his right of inheritance.  In 1891, through the enactment of the Age of Consent Act, marriageable age was raised to 12 years. The punishment for the violation of this Act was equal to rape.  In 1929 Child Marriage Restrained Act (Sharda Act), 1929 was passed. Through this Act the minimum age of marriage for girls was raised to 14 years.  Act V of 1843 declared slavery illegal in India. However its practice continued.

1It is evidenced after the researches that Manu was not the author of Manu Smiriti. It was compiled by Bhrigu. The laws given by various law givers for the period of several centuries were compiled in Manu Smiriti. As a result there are contradictory legislations in the work. 2Raja Ram Mohan Roy who is known as the morning star of social reformation in India, established Brahma Samaj in 1829 which was based on the notion of monism.

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