SOCIOLOGY OF LAW & HISTORICAL

PERSPECTIVES
(INCLUDED – WEBER’S NOTION OF LAW)

NAVANEETA MAJUMDER
WHAT IS THE SOCIOLOGY OF LAW?

Definition:
The sociology of law studies the social aspects of law, its institutions, and how they
interact with society

Scope:
Examines how law affects and is affected by social norms, behaviors, and changes

Importance:
Helps in understanding the role of law in shaping society and vice versa
SOCIOLOGICAL JURISPRUDENCE

• Study of legal system functionally as a social instrument

• As part of social control, study of legal institutions, doctrines, precepts

• Law is specialized agency of social control

• Task of social control-to achieve optimum production least waste

• Functional approach to the study of law described as science of social engineering

SCOPE OF STUDY – SOCIOLOGY OF LAW
• Deals with study of legal institutions in sociological concepts

• Study of social norms – central to sociology

• Sociological analysis of legal codes is long standing concern

• Analysis of social roles of lawyer, judge, how they relate to structure of society in
major aspect of sociology of law
KEY CONCEPTS AND THEMES
LEGAL PLURALISM

Multiple Legal Systems:

Coexistence of different legal systems within a single social field

Examples:

• State law
• Customary law
• Religious law
SOCIAL CONTROL

Regulation of Behavior:

How laws control and guide behavior?

Formal vs. Informal Control:

Legal sanctions vs. social norms

HUMAN RIGHTS

Protection of Individual Freedoms:

Role of law in safeguarding human rights

International Law:

Influence of global legal standards

METHODOLOGY TO STUDY SOCIOLOGY
OF LAW
QUALITATIVE METHODS

Case Studies:

In-depth analysis of specific legal cases

Interviews:

Gathering insights from legal practitioners, policymakers, and affected individuals

Ethnography:

Observing legal processes in natural settings

QUANTITATIVE METHODS

Surveys:

Collecting data on public opinions and experiences with law

Statistical Analysis:

Analyzing patterns and trends in legal data

COMPARATIVE LEGAL STUDIES

Cross-Cultural Examination:
Comparing legal systems across different societies

Historical Analysis:
Studying the evolution of legal systems over time
HISTORICAL PERSPECTIVES
Evolution of Sociology of Law
EARLY FOUNDATIONS

Ancient Legal Codes:

• Code of Hammurabi: One of the earliest and most complete written legal codes

• Roman Law: Basis for many modern legal systems

Philosophical Influences:

• Plato and Aristotle: Concepts of justice, law, and order

• Confucius: The role of morality and ethics in law

CLASSICAL SOCIOLOGISTS AND LEGAL THEORY
(1/2)
Emile Durkheim:

• Law and Social Solidarity: Law reflects the type of solidarity (mechanical vs. organic) in
society

• Repressive vs. Restitutive Law: Different types of law corresponding to different types of
social solidarity

Max Weber:

• Law and Rationalization: Legal rationality as a form of social control

• Types of Legal Authority: Traditional, charismatic, and rational-legal authority

CLASSICAL SOCIOLOGISTS AND LEGAL THEORY
(2/2)

Karl Marx:

• Law as a Tool of the Bourgeoisie: Law maintains the power of the ruling class

• Economic Base and Superstructure: Legal institutions reflect economic interests

20TH CENTURY DEVELOPMENTS (1/2)

Functionalism (Talcott Parsons):

• Law as a Subsystem: Maintains social order and stability

• Role in Social Integration: Law integrates different parts of society

Conflict Theory:

• Power and Inequality: Laws reflect and reinforce social hierarchies

• Social Change: Law as a site of conflict and change

20TH CENTURY DEVELOPMENTS (2/2)

Symbolic Interactionism:

• Micro-Level Analysis: Focus on everyday interactions and meanings of law

• Law in Practice: How individuals experience and interpret laws

MODERN PERSPECTIVES (1/2)
Critical Legal Studies (CLS):

• Challenge to Objectivity: Law is inherently political and subjective

• Indeterminacy and Contradictions: Laws can be interpreted in various ways

Feminist Legal Theory:

• Gender and Law: How laws perpetuate gender inequalities

• Intersectionality: How different social categories (race, class, gender) intersect in

legal contexts
MODERN PERSPECTIVES (2/2)

Law and Economics:

• Economic Analysis of Law: Understanding legal rules through economic principles

• Efficiency and Wealth Maximization: Focus on outcomes that maximize economic

efficiency
WEBER’S NOTION OF LAW
MAX WEBER – NOTION OF LAW
• Max Weber is considered as the founding father par excellence of the modern
sociology of law

• Weber had observed that social life in the modern era had become more and more
rationalized, not only due to the central role of economy, state, and bureaucracy, but
also due to the ‘role of law’ which is the basis of modern political authority

• Weber specifically outlined the characteristics of a formally rationalized legal system

that is primarily guided by the application of procedure and its impact on rise of
capitalism in Western Europe
WEBER’S CONCEPT OF LAW

• Coercion

• Legitimacy

• Rationality
COERCION
• Weber stressed on the coercive quality of law

• Legal coercion is a key feature of Weber’s model of functioning market economy

• So, according to Weber law is a form of ‘legitimate order’, involving specialised

agencies enforcing norms through coercive sanctions

• Thus, according to Weber ‘Orders’ which have coercive power are called ‘Law’
LEGITIMACY
• He stated that men might accept legal obligations as binding without specifically
being threatened by sanctions/coercion

• Precepts and principles may be stated by the legal order and yet men may accept
them as obligatory without actual coercion

• Weber saw that law can be a source of legitimate authority in society

RATIONALITY
• The final dimension of law in Weber's scheme was its "rationality"

• Weber distinguished various types of law in terms of relative degrees of rationality

• This shows that Weber's notion of legal rationality measures the degree to which a
legal system is capable of formulating, promulgating, and applying universal rules

• This rationality is achieved by "following some criteria of decision which is

applicable to all like cases" and thus measures the generality and universality of the
rules employed by the system
THE TYPOLOGY OF LEGAL SYSTEMS CLASSIFIED BY:
FORMALITY AND RATIONALITY OF DECISION-MAKING PROCESSES
FORMAL IRRATIONALITY
• Formally irrational legal decision-making is associated with prophetic decisions or
revelation

• Decisions are announced without any reference to some general standard or even to
the concerns of the parties to the dispute

• The criteria of decision-making is intrinsic to the legal system but unknowable; there
is no way the observer can predict the decision, or understand why it was reached
SUBSTANTIVE IRRATIONALITY
• Substantively irrational decisions apply observable criteria but these are always
based on concrete ethical and practical considerations of the specific cases

• It is possible to understand these decisions after the fact, but unless a system of
precedent arises, it is difficult to generalize from the concrete cases
SUBSTANTIVE RATIONALITY
• Substantively rational decision-making employs a set of general policies or criteria, but
these are of some body of thought extrinsic to the legal system, such as, religion and
political ideology

• To the extent that the overarching principles of the external thought system are
understood, it is possible to apprehend rationally how the system will function

• But this is only true to a limited degree, for the manner in which the precepts of the
external system will be translated into legal decisions may vary

• Thus, while this type is more capable of formulating general rule than the previous two, it
is less likely to do so than logically formal rationality
LOGICALLY FORMAL RATIONALITY (1/2)
• Legal thought is rational to the extent that it relies on some justification that
transcends the particular case, and is based on existing, unambiguous rules

• It is formal to the extent that the criteria of decision are intrinsic to the legal system;
and

• It is logical to the extent that rules or principles are consciously constructed by

specialized modes of legal thought which rely on a highly logical systemization, and
to the extent that decisions of specific cases are reached by processes of specialized
deductive logic proceeding from previously established rules or principles
LOGICALLY FORMAL RATIONALITY (2/2)
• Since in such a system, court decisions can only be based on previously established
legal principles, and

• Since the system requires these to be carefully elaborated, normally through

codification, legal decisions will be based on rules, and

• These will be general as well as derived from autonomous legal sources

CURRENT TRENDS AND FUTURE
DIRECTIONS
GLOBALIZATION

Impact on National Legal Systems:

Transnational legal processes and institutions

Human Rights:

Global standards and enforcement

TECHNOLOGICAL ADVANCEMENT

Cyberlaw:

Legal issues related to digital spaces

Artificial Intelligence:

Ethical and legal implications of AI

SUSTAINABILITY AND LAW

Environmental Regulations:

Laws promoting sustainability

Corporate Responsibility:

Legal frameworks for corporate environmental responsibility

THANK YOU
CULTURE & LEGAL SYSTEM IN
INDIA
INTRODUCTION
• The title of this section is likely to raise eyebrows, for, at first glance, law and culture do
not appear to have much in common

• However, a deeper look reveals a latent though omnipresent link of law with culture

• It is not difficult to define what 'law’ is

• It is the definition of 'culture' that is elusive

WHAT IS CULTURE?
Dictionaries define 'culture' as:
• "Improvement, refinement, or development by study, training etc.”

• "The training and refining of mind, emotions, manners, taste etc.“

• "The result of this; refinement of thought, emotion, manners, taste, etc.“

• "The concepts, habits, skills, art, instruments, institutions, etc. of a given people in a given
period, civilization"
POPULAR MEANING OF CULTURE
The popular meaning of culture could however vary from;
• Love of the ethnic,
• Fondness for classical music and dance,
• Pursuit of literature,
• Propagation of our traditional fine arts abroad,
• Behaviour in, and response to, day to day events,
• Respect for elders,
• Veneration for learning, etc.
LEGAL SYSTEM IN INDIA

Constitution of
India
Framework, Fundamental Rights, Fundamental Duties

Judicial System
Hierarchy, Independence

Legal Practices
Civil Laws, Criminal Laws and Personal Laws
RELATIONSHIP OF LAW & CULTURE (1/2)
• All laws and the law-makers reflect the cultural ethos of the society

• A traditional and conservative society has stricter norms and harsher penalties for their
violation, while a more contemporary society has a more relaxed set of norms and laws
that govern the citizen's life

• The history, literature, and fine arts of a nation impress and, indeed, mold the laws and
the law-making process
RELATIONSHIP OF LAW & CULTURE (2/2)
• The influence may not be immediately tangible, discernible, or direct, but it exists

• For instance, an outcry against excessive violence in films leading to stricter censorship
laws is just an expression of culture prevailing upon the laws

• The changes in law are, however, slow and generally lag behind the social and cultural
responses
EXAMPLE
• Legislation granting coparcenary rights to Hindu women reflects the belated response of
legislation to the emancipated position of modern Indian women

• In a significant verdict, the Madras High Court recently held that a wife, who contributed
to the acquisition of family assets by performing the household chores, would be entitled
to an equal share in the properties, as she had indirectly contributed to its purchase

• Manifestation of culture in this way is a fairly accurate barometer of the social response
to a situation which has become intolerable or overbearing
INTERPLAY BETWEEN LAW AND CULTURE
Sl. No. Description Instances
1. Customary practices and legal • Personal laws
framework • Customary rights
2. Influence of social movements • Women’s rights
• Caste discrimination
3. Role of public interest litigation • Societal issues
• Judicial activism
4. Balancing tradition and • Legal reforms
modernity • Cultural Sensitivity
THE SUPREME COURT JUDGEMENT –
HIGHLIGHTING THE CULTURAL TRADITIONS OF INDIA

The Supreme Court through the judgement of Chief Justice S.R. Das in the Kerala
Education Bill has eloquently highlighted the cultural traditions of India as:

"So long as the Constitution stands as it is and is not altered, it is, we conceive, the duty of this
Court to uphold the fundamental rights and thereby honor our sacred obligation to the minority
communities who are of our own.Throughout the ages endless inundations of men of diverse
creeds, cultures, and races-Aryans and non-Aryans, Dravidians and Chinese, Scythians, Huns,
Pathans, and Mughals-have come to this ancient land from distant regions and climes. India has
welcomed them all.They have met and gathered, given and taken, and got mingled, merged and
lost in one body”
CULTURE & INDIAN LEGAL SYSTEM (1/2)
• The history of the Indian legal order shows an intricate construction of institutions and
codifications which relate to;

✓ The British legal system,

✓ The Hindu or Muslim traditions (partly reinvented), and

✓ Since independence, to various international interactions

CULTURE & INDIAN LEGAL SYSTEM (2/2)
• The question of culture – local, religious, or national- has thus, regularly been at the core
of juristic concerns,

• The concern is regarding whether to leave place to aspects of personal law according to
more or less reified representations of culture, or to impose a reformist legal agenda

• Scholarship in this domain has followed two main trends:

✓ One is the study of the cultural components of Indian law;
✓ The other is the study of the cultural use of the Courts
CULTURAL COMPONENTS OF INDIAN LAW
• This approach of the relationship between law and culture, or more precisely of the
cultural and religious components that may be identified in the fabric of law (for instance
Sanskrit-based Hindu law, Islamic legal systems, or 'customary' law prevailing at local level),
leads to considerations of how this multilayered system interacts with state law

• Much of this work has therefore focused on legal pluralism, in line with the current focus
on different normative orders by scholars working on post-colonial societies
CULTURAL USE OF THE COURTS (1/2)
• The idea of legal pluralism was developed by B.S. Cohn, who considered the introduction
of the Western legal system in India as producing a "direct clash of values of two societies“

• Then M. N. Srinivas with his study on village disputes, introduced the idea of the "bi-
legality" of Indian villagers, by which he sought to describe villagers' attitudes to using
both 'indigenous' and ‘official law’ in accordance with their own estimations of propriety
and advantage
CULTURAL USE OF THE COURTS (2/2)
• Similarly, Galanter also underlined the disparity between ‘law on paper’ and ‘law in action’.
This is the case, for instance, in a domain where law explicitly takes into account the
cultural and social reality of India and provides for reservation policies and
"compensatory discrimination" in favor of members of socially stigmatized castes and
tribes

• Other recent studies based on ethnographic fieldwork have highlighted the continued
existence of local procedures of justice-making

• These studies, for the most part, lay an emphasis on the contradictions and oppositions
between an "alien" state" versus an "indigenous" custom
INDIAN SOCIETY AND STATE
COMMITMENTS (1/2)
• India is of particular interest for studying the dynamics between law and culture

• It is a democratic multi-cultural and multi-linguistic country, with wide social contrasts

due to the caste system

• But at the same time the state has shown a voluntarist approach in legal matters in order
to transform society along the values of democracy, justice, equality, and secularism

• India is in fact an important actor in the globalization process, engaged in international

conventions and with extremely active human rights organizations
INDIAN SOCIETY AND STATE
COMMITMENTS (2/2)
• However, apart from a few of the country’s megalopolis, Indian society remains essentially
rural and relationships are still rooted in religion, genre, caste, and traditional local
customs - all mechanisms of authority that can be very coercive at local level

• Social elites are thus caught between the affirmation of their global modernity and their
rooting in more traditional social and political networks

• This tension between values presented as “universal” and local social realities finds an
expression in the discrepancy between the political will of the state in its normative
activity – which tries to conform with international law and ideals- and the everyday
negotiation of kinship and other local ties
AN EXAMPLE
One example concerns caste:
• On the one hand, Parliament enacted the Scheduled Castes and Tribes Prevention of
Atrocities Act in 1989, which criminalizes any discrimination against castes of low rank
• On the other hand, caste discrimination remains very much an issue today
• While marriages are usually arranged by the families within the same caste, and over the
last few years cross-caste marriages have led to an increasing number of honor killings
• Furthermore, there are number of exploitative relationships -such as bonded labor or
sexual harassment - which are embedded in caste relations
AN ANALYSIS
• By promulgating these legal acts, the post-colonial state aims to outlaw social practices
and relationships that are deeply entrenched in local society

• Though legal acts do not circulate outside the circle of legal professionals, villagers may
become aware of these laws through police activities, media coverage, or by their
involvement as a witness in a court case

• However, the local practices and relationships of power that have been criminalized by
these laws may still be perceived (or implicitly claimed) by villagers as part of their
"culture", and this may also be used to legitimate caste- or gender-associated
relationships of domination
THANK YOU
PROBLEMS OF LEGAL SYSTEMS
IN INDIA
A SOCIOLOGICAL ANALYSIS
THE MAIN SOURCES OF LAW IN INDIA
• The Constitution of India: This is the supreme source of law
• Statutes: They are enacted by the Parliament or the state legislatures. At local level,
subordinate delegated legislation (such as rules, regulations and bye-laws) is passed by
local authorities (such as government departments, municipal corporations, municipalities
and gram panchayat)
• Customary law: In certain aspects, local customs and conventions (usually religious in
nature) that are not against any statute or morality are also applicable
• Judicial decisions: While technically not law, judicial decisions of superior courts like
the Supreme Court of India and High Courts are another important legal source, and
have precedential value.
TO WHAT EXTENT DO INTERNATIONAL
SOURCES OF LAW APPLY?
• International sources of law (such as a treaty or a convention signed by India) can
generally be enforced in India if they have been ratified and incorporated in Indian law

• In certain cases, customary rules and principles of international law can be applied even
without formal ratification in the interests of justice and if the international law in
question is not inconsistent with Indian law

• If there is a conflict between a domestic law and an international law, the domestic law
will prevail
LITIGATION (CIVIL & CRIMINAL)
• The Indian legal system is mainly adversarial

• However, in certain aspects it is hybrid of adversarial and inquisitorial functions (mainly

criminal cases)

• For example, the judge will undertake active fact-finding exercises, such as:
- Directing further investigation
- Assisting in the framing of charges
- Calling any person as witness and procuring evidence
MAJOR ISSUES WITH JUDICIARY
1. Pendency of Cases
2. Accessibility and Legal Awareness
3. Over criminalization and misuse of laws
4. Corruption
5. Inefficiency and lack of modernization
6. Inadequate legal representation
7. Gender bias and discrimination
8. Political influence and interference
1. PENDENCY OF CASES
• Problem: As of 2023, over 4.7 crore (47 million) cases were pending in various Indian
courts, including the Supreme Court, High Courts, and subordinate courts. Cases often
take years, if not decades, to be resolved

• Example: The Ayodhya land dispute case took almost 70 years to reach a final verdict
from the Supreme Court in 2019
SOCIOLOGICAL ANALYSIS

• Delays in justice erode public trust in the judicial system, especially among marginalized
communities who lack resources to endure prolonged legal battles

• This backlog reflects broader issues of bureaucratic inefficiency and a lack of adequate
judicial infrastructure

• It perpetuates a culture where justice is perceived as inaccessible, fostering social

discontent and a sense of disenfranchisement
2. ACCESSIBILITY AND LEGAL AWARENESS

• Problem: Many Indians are unaware of their legal rights or are unable to access legal
services due to financial constraints

• Example: Rural populations, which constitute about 65% of India's total population,
often lack basic legal knowledge and access to legal aid
SOCIOLOGICAL ANALYSIS
• This issue is deeply rooted in socio-economic disparities

• Rural and less-educated populations are particularly disadvantaged, leading to a cycle of

disenfranchisement

• Additionally, women and minorities face added barriers to accessing legal recourse,
exacerbating existing inequalities

• The lack of legal awareness and accessibility hinders the empowerment of these communities
and perpetuates systemic oppression
3. OVER CRIMINALIZATION AND MISUSE OF
LAW
• Problem: Laws are often misused to suppress dissent and target specific groups

• Example: The use of sedition laws (Section 124A of the Indian Penal Code) against
activists, journalists, and students has been widely criticized. In 2020, environmental
activist Disha Ravi was arrested on sedition charges for supporting the farmers' protests
SOCIOLOGICAL ANALYSIS

• The misuse of laws like sedition or anti-terrorism statutes is often a manifestation of

broader societal conflicts and power struggles

• It targets marginalized communities and stifles democratic freedoms

• Such misuse fosters fear and mistrust among the populace and highlights the imbalance of
power in society, where the state can use legal means to maintain control and suppress
opposition
4. CORRUPTION
• Problem: Corruption is pervasive within the legal system, involving law enforcement,
lawyers, and sometimes even judges

• Example: In 2011, a prominent case involved the then Chief Justice of India, K.G.
Balakrishnan, who faced allegations of amassing disproportionate wealth
SOCIOLOGICAL ANALYSIS
• Corruption within the legal system reflects broader societal issues such as poverty, lack
of education, and political instability. It erodes public trust in the legal institutions and
reinforces a perception that justice is available only to the wealthy and well-connected

• This creates a significant barrier to social justice and perpetuates the socio-economic
hierarchies within society
5. INEFFICIENCY AND LACK OF
MODERNIZATION
• Problem: The Indian legal system is criticized for being outdated, with many courts still
relying on manual record-keeping and archaic procedures

• Example: Many district courts still operate with physical files and limited use of digital
technology, leading to inefficiency and errors
SOCIOLOGICAL ANALYSIS

• This inefficiency reflects a broader resistance to change within Indian bureaucratic

systems

• The reluctance to adopt new technologies and streamline processes highlights a

hierarchical and rigid societal structure that resists modernization

• This disconnect from modern practices further alienates the legal system from the needs
of a rapidly evolving society and hinders its ability to deliver timely and effective justice
6. INADEQUATE LEGAL REPRESENTATION

• Problem: There is a significant shortage of competent legal representation for

underprivileged sections of society

• Example: The Legal Services Authorities Act of 1987 was intended to provide free legal
services to the poor, but implementation has been inconsistent and inadequate
SOCIOLOGICAL ANALYSIS

• Disparities in legal representation underscore the deep socio-economic divides in Indian

society

• Wealthier individuals and groups have access to better legal resources, creating a skewed
justice system where outcomes are heavily influenced by one’s socio-economic status

• This inequality in representation perpetuates social injustice and hinders social mobility
for the disadvantaged, further entrenching socio-economic disparities
7. GENDER BIAS AND DISCRIMINATION

• Problem: Women, particularly those from marginalized communities, often face

discrimination within the legal system

• Example: The handling of cases related to domestic violence and sexual harassment
often reflects systemic bias and insensitivity. The Nirbhaya case of 2012, which saw delays
and insensitivity in handling the rape and murder of a young woman, highlighted such
issues
SOCIOLOGICAL ANALYSIS

• Gender bias in the legal system reflects the broader patriarchal structure of Indian
society

• Women’s issues, including domestic violence, sexual harassment, and inheritance rights,
are often inadequately addressed, leading to systemic injustice

• This bias impacts not only the individual victims but also perpetuates gender inequality
across generations, reinforcing traditional gender roles and limiting women's
opportunities and rights
8. POLITICAL INFLUENCE AND INTERFERENCE

• Problem: Political interference in the judiciary compromises its independence and

impartiality

• Example: The transfer of Justice S. Muralidhar from the Delhi High Court in 2020, soon
after he criticized the government’s handling of riots in Delhi, raised concerns about
judicial independence
SOCIOLOGICAL ANALYSIS
• Political influence over the judiciary indicates the complex interplay between various power
structures within society

• It reflects the use of legal institutions as tools for maintaining political power and control

• This undermines the rule of law and erodes democratic principles, leading to a mistrust of legal
and political institutions

• It also highlights the challenges of maintaining judicial independence in a highly politicized

environment
SOCIOLOGICAL PERSPECTIVE –
THE PROBLEMS OF THE INDIAN LEGAL
SYSTEM
PROBLEMS – SOCIOLOGICAL PERSPECTIVE
The Indian court system is by all accounts unusual:
• They are extraordinarily expensive for common people
• It is often fragmented into a multitude of court actions
• Judgements are haphazard
• The lawyers are frequently tent and unethical
• False witness is commonplace
• Judges are habitually suspect
• Above all, the courts bring about a settlement of the disputes that give rise to litigations
SOCIOLOGICAL ANALYSIS
• The roots of the pathology of Indian legal system have not been subjected to so intense a
study as the symptoms

• There have been multiple attempts to mount explanation of the special nature of the
Indian judicial system

• For the purpose of this session we will discuss three different views to explain the way in
which the Indian judicial system has developed
BERNARD COHN (1/2)
• According to Cohn, the problem of Indian judiciary is rooted in the character of Indian
peasant society

• Indian peasants have failed to accept the very basis of the court system and have
therefore, abused its processes

• The British legal system is based on the idea of ‘equality’ but the Indian society operates
on the ‘status’ value hypothesis, i.e. men are not born equal, and they have widely differing
inherent worth
BERNARD COHN (2/2)
• Moreover, Indian villages are a multiplex social world where people are bound together
in a variety of relationships, these are ignored by a court concerned only with the issue
of the moment

• The result of this comprehensive clash of the values and structure of Indian society with
the introduced legal system could only result in a fundamentally flawed judicial process
ROBERT KIDDER (1/3)
• Unlike Cohn and most other observers of Indian courts, Kidder does not start from a
judgement that the courts are basically unsatisfactory

• He adopts a functionalist, value-free perspective, which rest on the assumption that

conflict is endemic to all societies and that the way of acting out conflict will vary with
the society
ROBERT KIDDER (2/3)
• Thus, according to Kidder, the central problem is to account for the variance between
the ‘norms’ of the judicial system and the ‘character’ of the actual judicial process

He argues that,
“if formal legal provisions are not having their intended impact on the relations between litigants,
the explanation lies in the relationship of those provisions to the social structure of the judicial
system rather than their incongruity with the indigenous values.”
ROBERT KIDDER (3/3)
• Further he explains the special character of Indian litigation in reference to the internal
workings of the judicial administration itself, rather than by the clash of Indian values with
those of the British based courts

• He argues that the judicial process in India is best conceptualised not as ‘adjudication’ but
as ‘negotiation’, hence, an understanding of the nature of this process will account for the
features of litigation, that are commonly thought unsatisfactory

• In short, the courts cannot provide quick, decisive outcomes because they have become
immensely complex social systems in themselves
A THIRD VIEW (1/2)
• The third view is that there is a missing factor which can largely account for the
pathology of the Indian legal system, i.e.‘Land’

• The judicial system implanted by the British and inherited by independent India has
always reflected the concerns of what is overwhelmingly a peasant society

• The great majority of court cases have had to do with the use, ownership and profit from
agricultural land

• This is true for all three jurisdictions of the court: civil, criminal and revenue
A THIRD VIEW (2/2)
• The courts represented a fresh opportunity structure for both outsiders and villagers

• It now seemed possible to secure victory by means other than simple force majeure

• But by the same token the capacity of the courts actually to deliver 'justice' was qualified
by the old village processes

• Willingness to litigate did not preclude resort to other forms of struggle. Litigants chose
the weapon(s) most suited to the struggle and their own situation
THE JUDICIAL PATHOLOGY
• The central failure of the courts has been their inability to resolve disputes by their
judgements

• Official data and other studies reveals a picture of extraordinary judicial inconclusiveness

• This can be divided into two parts:

a) A widespread lack of enforcement of court judgements
b) An unusual complexity in the process of litigation itself
A WIDESPREAD LACK OF ENFORCEMENT OF
COURT JUDGEMENTS

• The courts though lacks an autonomous power of enforcement, can call on the
enforcement mechanisms of the state – the police force
• But the police were unequal to the demands made of them because they are highly
bureaucratised and centralised in nature
• Their presence is more in urban centres, as compared to the rural areas, thus, when they
are present in the village, they try to enforce the court orders but once they go away, the
villagers start using their force to settle the dispute
• Moreover, the police are notoriously susceptible to financial inducements and to
intimidations by the dominant groups of the villages
AN UNUSUAL COMPLEXITY IN THE PROCESS OF
LITIGATION ITSELF (1/2)
• Schooled by their lawyers-a key group which flourished very early in the new order-the
litigants found marvelously intricate ways of exploiting procedural opportunities

• One dispute can become a whole series of court actions, civil, revenue and criminal

• If speed of action were undesirable, opportunities for delay through adjournment were
abundant

• An adverse decision could be appealed to ever higher courts

AN UNUSUAL COMPLEXITY IN THE
PROCESS OF LITIGATION ITSELF (2/2)
• False witness (positively encouraged by many lawyers) could be employed almost with
impunity – the complexity of the cases tended to be such that lying was virtually
impossible to detect

• There are instances of widespread bribery of the lawyers and the court officials by the
litigants too

• This way the successful litigants have learnt to skirt the many pitfalls surrounding the
courts
CONCLUSION (1/2)
• There is ample evidence that the judicial structure has become a complex social
structure in itself

• The various specialist in legal administration, to use Kidder’s phrase have entrenched
themselves so as to be capable of operating as a force independent of the will of the
parties of the dispute

• This tends to make the judicial process more unwieldy, less predictable and even less just
than it otherwise might be
CONCLUSION (2/2)
• At the same time, neither the procedures, nor the third party professionals are the root
problems of the judicial system

• A large part of the reason for the emergence of such as unsatisfactory legal profession is
the opportunities offered by the conflicts which are essentially beyond the competence
of the courts to resolve

• If the disputes had been more traceable, then it is doubtful that the lawyers would have
had so great a room to manoeuvre in their own interest
THANK YOU
LAW IN RURAL INDIA
NAVANEETA MAJUMDER
HISTORICAL CONTEXT OF RURAL LAWS IN INDIA

Ancient Systems:

• Village Panchayats: Traditional local governance

• Customary Laws: Community-based norms and practices

Colonial Influence:

• British Legal System: Introduction of codified laws

• Land Tenure Systems: Changes in land ownership and rights

KEY RURAL LAWS (1/2)

Land Reform Laws:

• Abolition of Zamindari System: Redistributing land to the tillers

• Tenancy Reforms: Security of tenure for tenants

Agricultural Laws:

• Minimum Support Price (MSP): Ensuring fair prices for farmers

• Essential Commodities Act: Regulation of agricultural products

KEY RURAL LAWS (2/2)

Forest Rights Act:

• Scheduled Tribes and Other Traditional Forest Dwellers: Rights over forest land
and resources

• Community Rights: Collective ownership and management

RURAL GOVERNANCE STRUCTURE (1/2)
• A three-tier structure of the Indian administration for rural development is called
Panchayati Raj Institutions (PRI)

• Panchayati Raj is identified as institutional expression of democratic decentralization

in India

• PRI aims to develop local self-governments in districts, zones and villages

• Decentralization of power to the panchayats is seen as a means of empowering

people and involving them in decision making process
RURAL GOVERNANCE STRUCTURE (2/2)
• It has been established in all states of India except Nagaland, Meghalaya and
Mizoram, in all Union Territories except Delhi and certain other areas

• These areas include,

✓ The scheduled areas and the tribal areas in the state
✓ The hill area of Manipur for which a district council exists and
✓ Darjeeling district of West Bengal for which Darjeeling Gorkha Hill Council exists
EVOLUTION OF PANCHAYATI RAJ
INSTITUTION IN INDIA
COMMITTEE FORMATION
• There were a number of committees appointed by the government of India to study
the implementation of self-government at the rural level and also recommend steps
in achieving this goal

• The committees appointed are as follows:

✓ Balwant Rai Mehta Committee
✓ Ashok Mehta Committee
✓ G V K Rao Committee
✓ L M Singhvi Committee
BALWANT RAI MEHTA COMMITTEE
• The Committee, in its report in November 1957, recommended the establishment of
the scheme of ‘democratic de-centralization’, which ultimately came to be known as
Panchayati Raj

• It recommended for a three tier system at village, block and district level and it also
recommended for direct election of village level panchayat

• Rajasthan was the first state to establish Panchayati Raj as it started from Nagaur
district on October 2, 1959
ASHOK MEHTA COMMITTEE

• The committee was appointed in 1977 to suggest measures to revive and strengthen
the declining Panchayati Raj system in India

• Its major recommendations were;

✓ Two tier system of panchayat,
✓ Regular social audit,
✓ Representation of political parties at all level of panchayat elections,
✓ Provisions for regular election,
✓ Reservation to SCs/STs in panchayats and
✓ A minister for Panchayati raj in state council of ministers
G V K RAO COMMITTEE & PANCHAYATI RAJ

• The committee was appointed by the planning commission in 1985

• It recognized that development was not seen at the grassroot level due to
bureaucratization

• Due to this the committee had addressed the Panchayat Raj Institutions as ‘grass without
roots’

• It has also made certain key recommendations which were incorporated in the final Act
L M SINGHVI COMMITTEE

• The committee was appointed by the government of India in 1986

• The committee recommended;

✓ The Panchayati Raj systems should be constitutionally recognized
✓ To conduct free and fair elections for the Panchayati Raj systems
✓ The re-organization of villages to make the gram panchayat more viable
✓ The village panchayats should have more finances for its activities
✓ To set up judicial tribunals in each state to adjudicate matters relating to the
elections to the PRI and other matters relating to their functioning
PASSING OF PANCHAYATI RAJ BILL IN THE
PARLIAMENT
• In response to the recommendations of LM Singhvi committee, a bill was introduced in
the Lok Sabha by Rajiv Gandhi’s government in July 1989 to constitutionalize Panchayati
Raj Institutions, but the bill was not passed in Rajya Sabha

• The V P Singh government also brought a bill, but fall of the government resulted in lapse
of the bill

• After this P V Narashima Rao’s government introduced a bill for this purpose in Lok
Sabha in September, 1991 and the bill finally emerged as the 73rd Constitutional
Amendment Act, 1992 and came into force on 24th April, 1993
73RD CONSTITUTIONAL AMENDMENT
ACT OF 1992
SIGNIFICANCE OF THE ACT (1/2)
• The 73rd Amendment to the Constitution enacted in 1992 added a new part-IX to the
Constitution

• It also added a new XI schedule containing list of 29 functional items for Panchayats
and made statutory provisions for the establishment, empowerment and functioning
of Panchayati Raj institutions

• The amendment act provides shape to Article 40 of the constitution, (directive

principles of state policy), which directs the state to organize the village panchayats
and provide them powers and authority so they can function as self-government
SIGNIFICANCE OF THE ACT (1/2)
• With the act, Panchayati Raj systems come under the purview of justiciable part of
the constitution and mandates states to adopt the system. Further, the election
process in the Panchayati Raj institutions will be held independent of state
governments will

• Some provisions of this amendment are binding on the States (compulsory), while
others have been left to be decided by respective State Legislatures at their
discretion (voluntary)
SALIENT FEATURES OF THE ACT (1/2)
• Organization of Gram Sabhas

• Creation of a three-tier Panchayati Raj Structure at the District (Zila panchayat), Block
(panchayat samiti) and Village levels (gram panchayat)

• Almost all posts, at all levels to be filled by direct elections

• Minimum age for contesting elections to the Panchayati Raj institutions be twenty one
years

• The post of Chairman at the District and Block levels should be filled by indirect election
SALIENT FEATURES OF THE ACT (2/2)
• There should be reservation of seats for Scheduled Castes/ Scheduled Tribes in
Panchayats, in proportion to their population, and for women in Panchayats up to one-
third seats

• State Election Commission to be set up in each State to conduct elections to Panchayati

Raj institutions

• The tenure of Panchayati Raj institutions is five years, if dissolved earlier, fresh elections
to be held within six months; and

• A State Finance Commission is to be set up in each State every five years

TERM OF A PANCHAYAT
• The Amendment provides for the continuous existence of Panchayats

• The normal term of a Panchayat is five years

• If a Panchayat is dissolved earlier, elections are held within six months

• There is a provision for State Election Commission, for superintendence, direction,

and control of the preparation of electoral rolls and conduct of elections to
Panchayats
POWERS AND RESPONSIBILITIES OF PANCHAYATS

Responsibility may be given to the Panchayats;

• To prepare plans for economic development and social justice

• To prepare schemes of economic development and social justice with regard to 29

important matters mentioned in XI schedule such as, agriculture, primary and
secondary education, health and sanitation, drinking water, rural housing, the
welfare of weaker sections, social forestry and so forth may be made by them
THANK YOU
LAW IN URBAN INDIA
NAVANEETA MAJUMDER
OVERVIEW – URBAN INDIA (1/2)

Rapid Growth:
• Urban population has increased significantly, from 27.81% in 2001 to 31.16% in 2011, and
continues to rise
• By 2024, it is estimated that over 35% of India’s population will reside in urban areas

Economic Development:
• Major cities like Mumbai, Delhi, and Bengaluru are economic powerhouses, contributing
significantly to the national GDP
• Urban areas are centers of trade, finance, technology, and education
Migration:
• Rural to urban migration is a major driver of urbanization, as people move in search of better
employment opportunities and living standards

Infrastructure Expansion:
• Rapid development of infrastructure such as roads, public transportation, and housing
• Initiatives like the Smart Cities Mission aim to improve urban living conditions

Challenges:
• Overcrowding, inadequate housing, pollution, and strained public services
• Need for sustainable urban planning and management to address these issues
OVERVIEW OF THE LAWS FOR
URBAN INDIA
URBAN PLANNING AND DEVELOPMENT

• The Constitution of India: Urban planning is a state subject under the Seventh
Schedule. However, the central government plays a role through model laws and
national policies

• Town and Country Planning Acts: Each state has its own legislation for urban
planning, such as the Maharashtra Regional and Town Planning Act, 1966

• Smart Cities Mission: Launched in 2015, this initiative aims to promote sustainable
and inclusive urban development through technology-driven solutions
HOUSING AND REAL ESTATE

• Real Estate (Regulation and Development) Act, 2016 (RERA): This act seeks
to protect homebuyers and ensure transparency in the real estate sector by establishing
a Real Estate Regulatory Authority in each state

• Pradhan Mantri Awas Yojana (Urban): This government scheme aims to provide
affordable housing to urban poor through subsidies and incentives
ENVIRONMENTAL REGULATION

• Environment Protection Act, 1986: This umbrella legislation provides a framework

for the coordination of central and state authorities in environmental protection

• Air (Prevention and Control of Pollution) Act, 1981, and Water (Prevention
and Control of Pollution) Act, 1974: These laws regulate pollution levels and aim
to maintain and restore air and water quality in urban areas
PUBLIC HEALTH AND SANITATION

• Public Health Acts: Various state public health acts provide the legal framework for
public health services, including the prevention and control of diseases

• Solid Waste Management Rules, 2016: These rules mandate urban local bodies to
manage waste effectively, promoting segregation at source, recycling, and scientific
disposal of waste
TRANSPORTATION AND TRAFFIC
MANAGEMENT
• Motor Vehicles Act, 1988: Regulates all aspects of road transport, including licensing,
traffic regulations, and road safety

• Metro Railways (Operations and Maintenance) Act, 2002: Governs the

operations and maintenance of metro rail systems in urban areas
URBAN GOVERNANCE AND LOCAL BODIES

• 74th Constitutional Amendment Act, 1992: Mandates the establishment of urban

local bodies (ULBs) like Municipal Corporations, Municipal Councils, and Nagar
Panchayats, providing them with authority and responsibilities for urban governance

Note: The 74th Constitutional Amendment Act, 1992 will be taught in detail

• Municipal Acts: Each state has its own municipal act which outlines the structure,
powers, and functions of municipal bodies
74TH CONSTITUTIONAL
AMENDMENT ACT, 1992
INTRODUCTION
• The first such Municipal Corporation was set-up in the former Presidency Town
of Madras in 1688; and was followed by similar corporations in the then Bombay
and Calcutta in 1726

• The Constitution of India has made detailed provisions for ensuring protection of
democracy in Parliament and in the state legislatures by enacting the Constitution
(Seventy Forth Amendment) Act, 1992
CONT.
• The 74th Amendment Act, 1992 has introduced a new Part IXA in the Constitution,
which deals with Municipalities in an article 243 P to 243 ZG

• This amendment, also known as Nagarpalika Act, came into force on 1st June 1993

• It has given constitutional status to the municipalities and brought them under the
justifiable part of the constitution

• States were put under constitutional obligation to adopt municipalities as per system
enshrined in the constitution
EXTENSION OF PROVISIONS OF THE ACT TO
SCHEDULED AREAS

• Part IX A of the constitution is not applicable to Scheduled Areas referred to in clause (I)
of Article 244 of the constitution

• However in terms of Article ‘JA3 Z,Q, (3), the parliament may, by law extend the
provisions of this part to those areas with such exceptions and modifications as may be
specified in such law
SALIENT FEATURES OF THE ACT
• Constitution of Municipalities
• Composition of Municipalities
• Constitution of wards committees
• Reservation of seats
• Fixed duration of Municipalities
• Power, authority and responsibilities of Municipalities
• Appointment of State Election Commission
• Appointment of State Finance Commission
• Constitution of Metropolitan and District Planning Committees
DEFINITION OF METROPOLITAN AREA

According to Article 243P, Metropolitan area in the country is an area where population is
above 10 Lakh
KINDS OF MUNICIPALITIES
Article 243Q provides for establishment of 3 kinds of Municipalities of every state:

• Nagar Panchayat: It is for those areas which are transitional areas i.e. transiting from
Rural Area to Urban areas. It is also known as Notified Area Council or City Council

• Municipal Council: It is for smaller urban area. It is also known as Nagar Palika

• Municipal Corporation: It is for Larger urban Areas. It is also known as Mahanagar

Nigam
COMPOSITION OF MUNICIPALITIES (1/2)

• All the members of a municipality shall be elected directly by the people of the municipal
area

• For this purpose, each municipal area shall be divided into territorial constituencies to be
known as wards

• The state legislature may provide the manner of election of the chairperson of a
municipality.
COMPOSITION OF MUNICIPALITIES (2/2)
• The state legislature may also provide for the representation of the following persons in
a municipality:
✓ Persons having special knowledge or experience in municipal administration without
the right to vote in the meetings of municipality

✓ The members of the Lok Sabha and the state Legislative Assembly representing
constituencies which comprise wholly or partly the municipal area

✓ The members of the Rajya Sabha and the State Legislative Council registered as
electors within the municipal area
WARDS COMMITTEES
• There shall be constituted a wards committee, consisting of one or more wards, within
the territorial area of a municipality having population of three lakhs or more

• The state legislature may make provision with respect to the composition and the
territorial area of a Wards Committee and the manner in which the seats in a wards
committee shall be filled

• It may also make any provision for the constitution of committees in addition to the
wards committees
DURATION OF MUNICIPALITIES
• There shall be a five-year term of office for every municipality

• However, it can be dissolved before the completion of its term

• Further, the fresh election to constitute a municipality shall be completed:

✓ Before the expiry of its duration of five years

✓ In case of dissolution, before the expiry of a period of six months form the data of
its dissolution
STATE ELECTION COMMISSION
• The superintendence, direction and control of the preparation of electoral rolls and the
conduct of all elections to the municipalities shall be vested in the State Election
Commission
FINANCES
The state legislature may:
• Authorize a municipality to levy, collect and appropriate taxes, duties, tools and fees

• Assign to a municipality taxes, duties, tools and fees levied and collected by state
government

• Provide for making grants-in-aid to the municipalities from the Consolidated Fund of the
state; and

• Provide for constitution of funds for crediting all moneys of the municipalities
FUNCTIONS (1/3)
The Twelfth schedule contains the following 18 functional items placed within the purview of
municipalities:

• Urban planning, including town planning

• Regulation of land use and construction of buildings
• Planning for economic and social development
• Roads and bridges
• Water supply for domestic, industrial and commercial purposes
• Public health, sanitation, conservancy and solid waste management
FUNCTIONS (2/3)
• Fire services
• Urban forestry, protection of the environment and promotion of ecological aspects
• Safeguarding the interests of weaker section of society, including the handicapped and
mentally retarded
• Slum improvement and upgradation
• Urban poverty alleviation
• Provision of urban amenities and facilities such as parks, gardens, playgrounds
• Promotion of cultural, educational and aesthetic aspects
FUNCTIONS (3/3)
• Burials and burial grounds, cremations, cremation grounds and electric crematoriums
• Cattle ponds, prevention of cruelty to animals
• Vital statistics including registration of births and deaths
• Public amenities including street lighting, parking lots, bus stops and public conveniences
• Regulation of slaughter houses and tanneries
CONCLUSION
• The 74th Constitutional Amendment Act and the various follow up actions including the
reforms towards effective implementation of provisions of the 74th Constitutional
Amendment, have given wide ranging responsibilities and functions to the Urban Local
Bodies (ULB) and their elected representatives
THANK YOU
LAW IN TRIBAL INDIA
NAVANEETA MAJUMDER
WHO ARE TRIBES?
• Communities are notified as Scheduled Tribes (ST) under Article 342 of the Constitution
based on the characteristics (defined by Lokur Committee) such as –
✓ Primitive traits,
✓ Geographically isolated,
✓ Distinct culture,
✓ Shyness of contact with community at large, and
✓ Economically backward

• When labelled ST the community becomes entitled for some constitutional protections
and developmental programs designed to end their marginalization and help assimilate
into mainstream society
TRIBAL BELT IN INDIA
TRIBAL DEMOGRAPHY
• There are 573 different tribal communities spread all over India
• As per official data, only 258 tribal communities speaking about 106 different
languages are notified as “Scheduled Tribes”
• About 80% of tribal populations are to be found along the Central India belt and the rest
20% are in the North‐Eastern States, Southern States and Island groups
• The numerically strong ST groups include Santhals, Gonds, Bhil, and Oraon
• Smaller tribal groups are to be found in A&N Islands and Kerala‐Tamil Nadu
• 75 tirbal groups have been categorized as Particularly Vulnerable Tribal Groups (PVTG)
for special development assistance
CONSTITUTIONAL PROVISIONS
FOR SCHEDULED TRIBES
CONSTITUTIONAL PROVISIONS

• India’s tribal population have constitutionally been addressed via two distinct avenues
i.e. Fifth and Sixth Schedule

• Fifth and Sixth Schedules were discussed and passed by Constituent Assembly between
September 5-7, 1949

• The Fifth Schedule applies to the overwhelming majority of India’s tribes in 10

central/peninsular Indian States, while the Sixth Schedule covers areas that are settled
in the northeastern States bordering China and Myanmar
FIFTH SCHEDULED - SCHEDULED AREAS
(1/2)
• Part 10 of the Indian Constitution entails the provisions related to Scheduled and Tribal
Areas with Articles 244 – 244 A.
• President is empowered to declare an area as Scheduled Area
• With the consultation of the Governor of the state, President can alter, add, diminish the
boundary of a Scheduled Area
• Tribal Advisory Council is a must for the states having scheduled areas (It has 20
members (Three-Fourth of which are Scheduled Tribes’ representatives in that state legislative
assembly)
• Governor can repeal or amend any regulations w.r.t to the state having scheduled areas
but only with the assent of the President of India
SCHEDULED AREAS (2/2)
• The first commission to report on the administration and welfare of the Scheduled Areas
was established in 1960 and was headed by UN Dhebar
• There are 10 states having scheduled areas (Andhra Pradesh, Chhattisgarh, Gujarat, Himachal
Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana)
• Criteria for the declaration of the Scheduled Area:
✓ Prominent numbers of tribal population, i.e. when tribal people are in majority in an
area
✓ Compactness and reasonable size of the area
✓ A viable administrative entity such as a district, block or taluk, and
✓ Economic backwardness of the area as compared to the neighboring areas
EXECUTIVE POWER OF STATE AND CENTRE
• The Governor of each state having scheduled areas, submit a report to the President
(annually or whenever required) regarding the administration of the scheduled areas in
that state

• The executive power of the union extends to the giving of directions to the state as to
the administration of such areas
LAWS APPLICABLE TO SCHEDULED AREAS
• The Governor is empowered to direct that any particular Act of parliament or of the
legislature of the state does not apply to a scheduled area subject to such exceptions and
modifications as he may specify in the notification

a) Prohibit or restrict the transfer of land by or among members of the ST in such

area;

b) Regulate the allotment of land to members of the ST in such area;

c) Regulate the carrying on of business as money-lender by persons who lend money

to members of the ST in such area
SIXTH SCHEDULE (1/2)
• The Sixth Schedule gives tribal communities considerable autonomy

• The States of Assam, Tripura, Meghalaya, and Mizoram are autonomous regions under the
Sixth Schedule (Tribal Areas)

• The District Council and the Regional Council under the Sixth Schedule have real
power to make laws, possibility on the various legislative subjects, receiving grants-in-aid
from the Consolidated Fund of India to meet the costs of schemes for development,
health care, education, roads and regulatory powers to state control
SIXTH SCHEDULE (2/2)
• The mandate towards devolution, de-concentration and divestment determines the
protection of their customs, better economic development and most importantly ethnic
security

• However, the Sixth Schedule has its own shortcomings; breakdown of law and
order, elections not being contested, rather than empowerment there is exclusion that
fails to provide much-needed protection to tribes in the absence of political will, and live
by the mercy of government funds
LAWS RELATED TO SCHEDULED TRIBES IN INDIA
(1/2)
Broader Area Laws Remark
Protection of Land The Scheduled Tribes and Other Traditional This law will be
and Resources Forest Dwellers (Recognition of Forest dealt in detail
Rights) Act, 2006 (Forest Rights Act)
Land Acquisition Act, 2013 (Right to Fair -----
Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement
Act)
Social and Economic Scheduled Castes and Scheduled Tribes
Development (Prevention of Atrocities) Act, 1989
Panchayats (Extension to Scheduled Areas) This law will be
Act, 1996 (PESA) dealt in detail
LAWS RELATED TO SCHEDULED TRIBES IN INDIA
(2/2)

Broader Area Laws Remark

Education and Reservation Policies ------
Employment
Scholarship Schemes ------
Cultural Preservation Protection of Tribal Culture: Initiatives under ------
the Ministry of Tribal Affairs and state governments
support the preservation of tribal languages,
traditions, and arts.
PANCHAYATS (EXTENSION TO THE
SCHEDULED AREAS) ACT 1996
PESA ACT
INTRODUCTION
• The 73rd amendment Act 1992 had made constitutional provisions for the three tier
Panchayats all over the country

• However, this act is not applicable to Jammu and Kashmir, Nagaland, Meghalaya and
Mizoram and certain other areas

• These other areas include:

✓ Scheduled Areas and the Tribal Areas in the states
✓ Hill area of Manipur for which a district council exists
✓ Darjeeling district of West Bengal for which Darjeeling Gorkha Hill Council exists
SALIENT PROVISIONS OF PESA ACT (1/2)
• In the Schedule areas, every village will have a Gram Sabha consisting of persons whose
names are included in the electoral rolls for the Panchayats at the village level

• In the schedule areas, there will be a minimum of 50% seats reservation for STs at all
the tiers of Panchayats

• If the area has different tribal communities, the reservation of different tribal
communities shall be on the basis of proportion to their population
SALIENT PROVISIONS OF PESA ACT (2/2)
• The chairpersons at all levels of the Panchayats in Schedule areas shall be reserved for
STs

• If there are no ST members at intermediate or district level Panchayats, the state

government shall nominate such underrepresented STs by maximum of one-tenth of
the total elected members of the Panchayats

• Every legislation on the Panchayats in scheduled area shall be in conformity with the
customary law, social and religious practices and traditional management practice of the
community resources
POWERS AND AUTHORITY OF THE GRAM SABHA
AND PANCHAYATS IN SCHEDULED AREAS (1/3)

• Gram Sabha has the power to safeguard and preserve the traditions and customs of
people, their cultural identity, community resources and customary mode of dispute
resolution

• It also has power;

✓ To approve plans, programs and projects for social and economic development,
✓ To identify persons as beneficiaries under the poverty alleviation and other
programs,
✓ To give certificate of utilization of funds for various plans and programs
POWERS AND AUTHORITY OF THE GRAM SABHA
AND PANCHAYATS IN SCHEDULED AREAS (2/3)
• If there is an acquisition of land in these areas, Gram Sabha must be consulted (However,
actual planning and implementation of the projects shall be coordinated at the state level)

• So, in land acquisition, the role of Panchayats in these areas is advisory only

• The recommendation of the Gram Sabha or the Gram Panchayats is mandatory for grant
of prospecting license or mining lease for minor minerals in that area

• Gram Sabha has the right to enforce prohibition or to regulate or restrict the sale and
consumption of any intoxicant
POWERS AND AUTHORITY OF THE GRAM SABHA
AND PANCHAYATS IN SCHEDULED AREAS (3/3)

• Gram Sabha and Panchayat have right to regulate the;

✓ Ownership of minor forest produce;
✓ To prevent alienation of land;
✓ To manage village markets;
✓ To exercise control over money lending;
✓ To exercise control over institutions and functionaries in all social sectors;
✓ To control over local plans and resources for such plans including tribal sub-plans;
✓ Planning and management of minor water bodies shall be entrusted to panchayats at
appropriate level
SIGNIFICANCE OF PESA ACT
• From the previous slides it can be said, that, the PESA Act has been an important
legislative framework to be enacted by the state legislatures for the tribes to have their
control and rights over natural resources and conserve and preserve their identity and
culture and that too in a participatory manner through the institution of gram Sabha
THE SCHEDULED TRIBES AND OTHER
TRADITIONAL FOREST DWELLERS (RECOGNITION
OF FOREST RIGHTS) ACT, 2006

Forest Rights Act (FRA), 2006

HISTORICAL BACKGROUND (1/2)
• A large number of people especially the scheduled tribes have lived in and around forests
for a long period in symbiotic relationship

• This relationship has led to formalized or informal customary rules of use and extraction,
often governed by ethical beliefs and practices that have ensured that forests are not too
degraded

• During the colonial time the focus shifted from the forests being used as a resource base
for sustenance of local communities to a State resource for commercial interests and
development of land for agriculture
HISTORICAL BACKGROUND (2/2)

• Several Acts and policies such as the 3 Indian Forest Acts of 1865, 1894 and 1927 of
Central Govt and some state forest Acts curtailed centuries‐old, customary‐use rights of
local communities

• This continued even after independence till much later until enactment of The Scheduled
Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
SALIENT FEATURES OF THE ACT (1/2)

• The act recognize and vest the forest rights and occupation in Forest land for Forest
Dwelling Scheduled Tribes (FDST) and Other Traditional Forest Dwellers (OTFD)who
have been residing in such forests for generations

• The act also establishes the responsibilities and authority for sustainable use,
conservation of biodiversity and maintenance of ecological balance of FDST and OTFD

• It strengthens the conservation regime of the forests while ensuring livelihood and food
security of the FDST and OTFD
SALIENT FEATURES OF THE ACT (2/2)

• It seeks to rectify colonial injustice to the FDST and OTFD who are integral to the very
survival and sustainability of the forest ecosystem

• The Act identify four types of rights:

a) Title Rights
b) Use Rights
c) Relief and Development Rights
d) Forest Management Rights
FOUR TYPES OF RIGHTS (1/2)

Title Rights
• It gives FDST and OTFD the right to ownership to land farmed by tribals or forest
dwellers subject to a maximum of 4 hectares

• Ownership is only for land that is actually being cultivated by the concerned family and
no new lands will be granted

Use Rights
• The rights of the dwellers extend to extracting Minor Forest Produce, grazing areas, to
pastoralist routes, etc.
FOUR TYPES OF RIGHTS (2/2)

Relief and Development Right

• To rehabilitate in case of illegal eviction or forced displacement and to basic amenities,
subject to restrictions for forest protection

Forest Management Rights

• It includes the right to protect, regenerate or conserve or manage any community forest
resource which they have been traditionally protecting and conserving for sustainable use
WHO CAN CLAIM THIS RIGHT?

• Members or community of the Scheduled Tribes who primarily reside in and who depend
on the forests or forest lands for bona fide livelihood needs

• It can also be claimed by any member or community who has for at least three
generations (75 years) prior to the 13th day of December, 2005 primarily resided in
forests land for bona fide livelihood needs

• The Gram Sabha is the authority to initiate the process for determining the nature and
extent of Individual Forest Rights (IFR) or Community Forest Rights (CFR) or both that
may be given to FDST and OTFD
IMPORTANCE OF THE ACT (1/2)

• The acts looks to right the wrongs of government policies in both colonial and
independent India toward forest-dwelling communities, whose claims over their
resources were taken away during 1850s

• The act also has potential of sustainably protecting forest through traditional ways along
with providing tribes means of livelihood

• It expands the mandate of the Fifth and the Sixth Schedules of the Constitution that
protect the claims of indigenous communities over tracts of land or forests they inhabit
IMPORTANCE OF THE ACT (2/2)

• The alienation of tribes was one of the factors behind the Naxal movement, which affects
states like Chhattisgarh, Odisha and Jharkhand. The act through identifying IFR and CFR
tries to provide inclusion to tribes

• It has the potential to democratize forest governance by recognizing community forest

resource rights over an estimated 85.6 million acres, thereby empowering over 200
million forest dwellers in over 1,70,000 villages

• The act will ensure that people get to manage their forest on their own which will
regulate exploitation of forest resources by officials, forest governance and management
as well as tribal rights etc.
CHALLENGES (1/5)

❑ Administrative Apathy

• Implementation of the act remains the biggest challenge as acts related to the
environment are not entirely compliant with the law, illegal encroachments have
happened as much as that claims have been unfairly rejected

• As tribals are not a big vote bank in most states, governments find it convenient to
subvert FRA or not bother about it at all in favor of monetary gains
CHALLENGES (2/5)

❑ Lack of Awareness

• Unawareness at the Lower level of forest officials who are supposed to help process
forest rights claims is high and majority of the aggrieved population too remains in
the dark regarding their rights

• The forest bureaucracy has misinterpreted the FRA as an instrument to regularize

encroachment instead of a welfare measure for tribals
CHALLENGES (3/5)

❑ Dilution of Act

• Certain sections of environmentalist raise the concern that FRA bend more in the
favor of individual rights, giving lesser scope for community rights

• Community Rights effectively gives the local people the control over forest
resources which remains a significant portion of forest revenue making states wary
of vesting forest rights to Gram Sabha
•
CHALLENGES (4/5)

❑ Reluctance of the forest bureaucracy to give up control

• There has been deliberate sabotage by the forest bureaucracy, both at the Centre
and the states, and to some extent by big corporates

• The forest bureaucracy fears that it will lose the enormous power over land and
people that it currently enjoys, while the corporates fear they may lose the cheap
access to valuable natural resources
CHALLENGES (5/5)

❑ Institutional Road block

• Rough maps of community and individual claims are prepared by Gram Sabha
which at times often lack technical knowhow and suffers from educational incapacity

• Intensive process of documenting communities’ claims under the FRA

makes the process both cumbersome and harrowing for less educated STs and
forest dwellers
THANK YOU