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Human Rights and the Indian
Academia: A Need for Civilisational Understanding

by Vikramjit Banerjee*

Cite as : (2002) 8 SCC (Jour) 1

Introduction: Why?

In a time when the "clash of civilisations"1 and "dialogue amongst civilisations"2 are the reigning paradigms which govern the world, the purpose of this article is to explore the boundaries of cultural relativism in the area of human rights in civilisational terms as part of the process of a genuine dialogue amongst civilisations. For this purpose, this article would test the very paradigm and conception of "human rights". The idea is to find alternatives to the human rights discourse.

It is important to clarify the use of "Bharatiya" here. Bharatiya is used interchangeably with the thought process of the Indic civilisation3 In modern terms this would be the present geography of the State of India and the values would seem to be based on this world view, which is mistakenly identified with the Hindu religion.

The Indian concept of human rights

There is no consensus on how to analyse the concept of human rights in Indian human rights jurisprudence. It is also very important here that we distinguish between Indian and Bharatiya. In this context, Indian refers to that part of jurisprudence which traces its social welfare and social justice concepts embodied in the formation of the modern Indian State4, and its Constitution while Bharatiya traces its roots to the traditions of the present State of India5 The recognition of these differences is very crucial for the discussion, to know both the context of the argument and also the viewpoints within it.

As a small caveat here, it must be noted that there was once a Marxist analysis of an Indian human rights jurisprudence6 and it still echoes in the minds of some authors of the area7 though with the end of Marxism and socialism as a relevant tool for measuring society the discussion has become moot8

The legal justification for human rights in India

In Indian legal thought, there are three different streams of writers, one set who trace human rights from international documents, another set, who trace it from the Constitution of India, and the third who try to explore other methodologies as a basis for the conception of human rights9

The internationalists

The internationalist in Indian human rights jurisprudence traces the origin of human rights jurisprudence to Western thought formulated in international documents. It is treated as a universal norm formulated by an international society10 even though the conceptualisation of the human rights paradigm is a culmination of human history in the West alone11

The history of this development starts from Western experiences and societal dilemmas witnessed from the time of the Magna Carta to the framing of international documents after the Second World War. Obviously as a corollary they endorse the view that the documents enacted after the War of 1939-1945 (or World War II) were an expression of universal will12 Indeed there was no effective participation from an alternate perspective13 This adds up to the inordinate amount of concentration on fundamental rights in the Constitution of India as a method of governing society14 It seems to be a typical legal academic approach of taking international norms and their "effective" implementation in the West and of using the Indian Constitution as a touchstone to turn these international obligations into national norms through a process of metamorphosis15 What results is the institutionalisation of a strictly legalistic rights regime and an attempt to make it work in a society which is organised around a different set of realities which are largely duty-based.

It is important to note here that some Judges have tried a different approach using the same universal methodology. Justice Saikia, in trying to give credence to the idea of the universality of rights, used Hohfeldian logic to cast correlative duties on others16 Furthermore, some Judges have used universalist rights theories indiscriminately17, and then in trying to plug the resulting discrepancies have employed directive principles of State policy18 and fundamental duties.

Constitutional theorists

There are essentially two different streams of constitutional thought: one led by the judiciary and the other by the academics. The former represents an approach where the judiciary focusses on delivering justice. The academics on the other hand, have tried to enhance the effectiveness of the rights paradigm within the Constitution. The judiciary and the academics see the world in very different ways. It seems that the judicial approach acknowledges Indian realities, both in practicality and in logic, while the academic approach in India has tended to be divorced from Indian reality, more in the conception of the paradigm itself than in suggesting ways to implement it.

The academic approach

The problem with the academic approach is that it has been inconsistent. While it has consistently traced its roots to human rights values of Western jurisprudence via the Constitution of India, it has been inconsistent in evolving a philosophy, which would be a methodology for the interpretation of such rights19 as a method to interpret the constitutional rights scheme. There is also a tendency in the academic approach to go into an enumeration of human rights violations in terms of the Constitution without discussing theoretical underpinnings20 There also seems to be an incredible tendency to accept as final, the norms set by international institutions and documents (including charters, covenants and declarations) as universal, without discussing the conceptualisation of the validity of the rights paradigm, and using the Constitution to say that the problem in the Indian human rights scenario is one of ineffective implementation21 There is also the continuous attempt to prove that all human rights as seen, can be read into or have been envisaged by the Constitution22 This tendency to back-calculate human rights is present all over the subcontinental literature on law23 There are some who realise the inherent problems of using a Western rights jurisprudence of the Constitution in an essentially "different" culture (some would go so far as to say that the "rights" system is too advanced an approach24) and the solution which they see is to make India more of a society which is conducive to a culture of rights25 (in other words make India into a Western society). There remains a further group, which carries the argument on a different level, stating that though social objectives and welfare have to be Indian, the methodology of implementation, must necessarily be rights-oriented (in other words to be effective, the rights agenda has to be implemented)26 Finally there is a set of constitutionalists who want the newly incorporated fundamental duties of the Constitution of India27 to be legally enforceable28 It is a very intelligent argument though not wildly popular as it clashes with the rights methodology. Finally all this confusion is compounded by the lack of consensus regarding the content of the rights themselves29

The non-conformist dissenters

To be fair there is variety of views which take a different route towards the conception of human rights in India. There is also the problem of some writers standing at various points of time on different grounds of reasoning, due to shifts in personal changes in ideology or due to the total collapse of their world view (like Marxism). There is also a further problem in classifying them strictly into groupings, where they cannot be cabined easily. A few years back Marxism would have been highlighted as a methodology to analyse society, and the rights technique as a method of the living experiment of Marxism. The objective of such a reading was to enumerate a methodology to maximise the control of the "underprivileged" (the peasants and the proletariat) over the means of production and to ensure effective distribution of wealth and power30 Since the Marxist experiment has become irrelevant in the world today, it has been largely replaced by the post-modernist discourse31 There are still attempts to conceptualise human rights as a radical mechanism to change society32

Professor Upendra Baxi has been seminal in the formulation of the human rights jurisprudence in India. It must also be noted that he has also over a period changed his views and reconciled his views to the post-Marxist world33 Professor Baxi now holds that rights must be balanced by duties. He uses the terms of illegitimate "rights wariness" as different from legitimate "rights weariness" to illustrate the reluctance of some to accept the fundamentality of human rights34 He does maintain however that human rights are fundamental to universal norm formation; in order to achieve true democracy35 though it is sometimes apparent that his Marxist leanings surface when he uses his Marxian class structures to attack the growing middle class as the "gravest possible threat to Indian democratic sustenance"36 To his credit he does realise the contradiction of Bharat and India, and he did come to understand the complexity of the rights argument in a country like India37 He also realised that it is difficult to translate rights-based "erudite" knowledge into organic ones38 The possible problem is that possibly he recognises that Marxism as a human rights paradigm is irrelevant today, but finds it too hard to disown his previous work and attempts to indigenise Marxist ideals suitably39

Dr Rajeev Dhavan is not a Marxist and therefore it has been relatively easy for him not to get trapped into Professor Baxi's dilemma. In fact he seemed to realise very early, the need to transform integrally the norm-framing nature of the Indian State40 by endorsing the concept of "total revolution"41 and later he did go on to argue with incredible acumen that the Indian judiciary is deeply influenced by Western thinking42 He did make some very interesting suggestions regarding the use of the directive principles of State policy as a method of interpreting the Constitution43, and a need to consider reason and instinct parallel in terms of decision when interpreting social welfare44 It is almost as if Dr Dhavan realises the problem of a clash of rights and dharma45, but cannot use dharma, due to his own problems of strict legalistic definitions of the very same concept46 Even when he directly addresses the subject he cannot and does not reject the rights paradigm but insists on the plea for the need of incorporating traditional norms47 Dr Dhavan comes closest to enunciating a newer methodology, though he overlooks the obvious next step when he comes closest to taking it.

Professor Chattrapati Singh makes a very forceful argument to change public law and intersocietal relations as per the spirit of Dharmashastra and possibly dharma48 Though he still deliberately avoids going on these lines, he maintains that there is a need for reinterpretation of basic law so as to make it more acceptable to the people of Bharat (as different from India).

Proto-Bharatiya thought in legal literature

The problem with classification of anything as Bharatiya or Indian is immense. No one has to date rejected the rights scheme (the possible exception is Panikkar) and its conception in relation to Indian society, and even where such a rejection has been discussed, the primacy and the effectiveness of the rights paradigm has been maintained even though its foreign origins may have been acknowledged sometimes at the cost of the conceptions of social governance of indigenous political and cultural systems49

Bharatiya human rights theorists

The reason for making this classification is to underline thinking which in form and argument has come very close to Bharatiya traditional thinking. It is non-traditional in the sense that it tries to restructure this Bharatiya conception into modern terminology, ideas and conceptualisations of social welfare, and even in terms of rights.

Justice Krishna Iyer50 and Justice A.M. Bhattacharjee51 are very learned in traditional and Bharatiya thought, yet unable to break out of Marxist obscurantism52, and this dichotomy is reflected in their ideologies. Justice Iyer realises the problem of imposing a Western system on an alien polity like Bharat. There is an attempt therefore in his writings to indigenise the thinking, and to equate dharma, with the rule of law, though he himself is not very convinced53 He also attempts to merge development, dharma and socialism as a unified philosophy, possibly a new substantive definition of dharma for the present, though he also makes the fatal mistake of articulating the argument in terms of the rights paradigm54 There is an attempt to reconcile them, when he tries to enunciate in so many words that human rights are a manifestation of universal duty and tradition (by suggestion) and a human rights violation of one section of society is a human rights violation of the entire society55 In the context of the previous argument he does not bring in dharma into the matrix as the problems with that are obvious56 He is also reluctant to formulate new normative structures outside the existing paradigm of rights though he more than anyone else understands that the rights paradigm is obviously an incomplete mode of governance in Bharatiya society57 and has many a time presented uniquely radical criticisms of the "materialist" interpretations of rights58

Justice Bhattacharjee refuses to give up the certainties of the rights doctrine, though it is possible that he realises its drawbacks in the Bharatiya society. He comes across at times as someone who uses indigenous logic to support Western arguments as props59 and sometimes as a background60 Yet, when he discusses Hindu law61, he comes up with the very perceptive theorisation that rights and duties are correlative62, going so far as to say that too much rights concentration is dangerous to society and would create a law of the jungle63 He stresses that one cannot enjoy rights unless one does his/her duties64 and that justice can only be realised if every person is forced to do their duties65 He steps closest to the boundaries when he suggests the reinterpretation of the Constitution by using fundamental duties as a counterbalance to fundamental rights and directive principles of State policies66 And finally he asks for a dharmashastric temper to be used in the reinterpretation of the Constitution67, as some would say, the best possible methodology to implement a flawed constitutional structure. The issue whether such a dharmashastric interpretation would facilitate socialism68 as Justice Bhattacharjee says is another matter.

Some other interesting interpretations of the paradigm of human rights system in the Indian Constitution, in terms of non-Western jurisprudence seem to have been tentatively explored by some scholars. There does seem to have been a consistent view that the Indian constitutional structure needs to be reinterpreted as there is a specific inherent clash of Western and Bharatiya value systems69 There have even been calls to replace the Westernised legal structures70 and the possibility of judicial interpretations using dharmashastric materials71, though no one has gone so far as to challenge the rights paradigm itself72 The most striking is by Vishway, who says there is a need for democratic spiritualisation of the Westernised Indian legal system73 To all this finally must be added the Hindu Declaration of Human Rights74, which are the human rights formulated according to the Hindu world view75

The problem with proto-Bharatiya thought seems to be that no one has managed to actually shake off the rights paradigm based on the Westernised value systems.

Bharatiya dharmic thinkers

It must be noted that there have been attempts to get outside the formalist, legalistic, entitlement-based rights system, as it conflicts with indigenous value systems. It is imperative to formulate alternative models of social welfare in terms of Bharatiya culture such as the ones of Deen Dayal Upadhyaya76 and Mohandas Karamchand Gandhi77

Yet it is Raimundo Panikkar who makes the most interesting conceptualisation of the conflicts between dharma and human rights as ideologically opposed rivals, where he strongly disagrees with the conception of universal human rights per se. Though he formulates his challenge as based on the "Indian" world view, the essential point is that he points out the problems in the very conception of the rights system, and its hidden value systems that it carries as part of its ideology78

Dr Werner Menski foresees more indigenisation and larger incorporation of dharma into Indian law. He also postulates that the present activism of the courts is a slow assertion of "rajdharma", including the methodology of relative justice as well as the methodology of the dispensation of justice. He also comments on the averseness of the Indian legal structure to formulate anything in terms of the "dharma complex"79, yet incorporating both its substance and its approach. Weber notices the same, though he puts it in terms of an unconscious return to one's roots80 He conjectures that the probable reason for the extreme reluctance of the Indian elite to incorporate dharma into society is their fear of loss of privileges in a "dharmic" society gained under the modernist structures of law and property81

Conclusion: Tying up the loose ends

Where does "India that is Bharat"82 stand on the issue of human rights and where should it go from there?

It is very interesting to see that there is great consensus amongst jurists in the subcontinent over the nature of human rights. No one disclaims the importance of human rights as the relevant method of governing society, the only difference is where these rights can be traced to. In other words, the rights conception is undisputed (though sometimes pictured as limited, due to the failings of indigenous circumstances) but the original conception is traced back to traditional sources (whether they be Bharatiya, purely Buddhist83 or indeed Islamic84). It is quite apparent from the various reactions, even from alternative thinkers like Hassan85 (from an Islamic angle), Traer (from a Buddhist perspective)86, Justice Bhattacharjee and Justice Jois (from the proto-Bharatiya viewpoint), that there is great reluctance to let go of the rights paradigm totally. This is probably based on the assumption that human rights are the best possible methodology of governing society. Yet, it is obvious that there is no core consensus on the subject of social models, human rights or anything else87

It must be highlighted that the challenges to the Western human rights discourse made through the Asian values, Islamic or Buddhist arguments in the subcontinent's perspective has been far from effective. This has been because they have been unable to coherently argue for an alternative system of governance outside the human rights framework. It is therefore important that Bharatiya culture attempts to structure its very own model.

In the context of Bharat, it is unforeseeable that an authoritarian model like the Asian values whether they be the Malaysian88, Singaporean89 or the Chinese90 would last91, besides the obvious cultural distance between Bharatiya and the Asian models. Bharat would also have to make adjustments with both Islamic and the universal matrices and will have to build its projected systems around these alternative models possibly in a sort of "milet" system used by the Turkish Empire or through the "adat" law system used in South-East Asia92 (though these need much reworking to suit the present circumstances). This is because the Islamic system is based on a different civilisational model and would be very difficult to incorporate into the conception of Bharatiya thinking per se. Finally, there has been much more work done on alternative discourse in the Buddhist system, than in Bharat. The Buddhist and the Bharatiya world view are almost the same93, except for a few peculiarities, like the principle of Buddhahood (Bodhisattva), and it would be in the interest of the alternative Bharatiya discourse, to take a long hard look at both its advantages and its disadvantages. It is only then a true alternative to the present Western legal system could be formulated amongst the people of Bharat (not India).

Though the conception of human rights has been Eurocentric94 and not universal95, and there has been a slow tendency to revert back to cultural models of social governance even while retaining the human rights rhetoric96, this much is conceded that the rights system in India has become the dominant legal language between the State and society and that no conversation on the area of governance and welfare is possible without using the language of rights97

The obvious questions that need to be asked therefore are:

I. Assuming that the human rights paradigm is a Western value system, can it be indigenised into something essentially Bharatiya, in an essentially non-Western society?

II. Would "rightisation" of society automatically mean "Westernisation" of society?

III. What would the contours of the uniquely Bharatiya formulation look like?

The last part of the paper would suggest some thoughts, which would carry the debate forward.

Human rights amongst the unbelievers

The West admittedly had a culture of rights, and there have been some attempts to show that they have had a parallel development in Bharatiya tradition and culture98 For the common man the concept of human rights consciousness just has not taken hold99 It seems that in our hurry we are missing the concept of culture, which deeply influences governance and social relations. Culture is influenced by history and supported by the traditional philosophy of the civilisation, where the State is situated100 Conceptions of governance101 and law102 are therefore the product of the culture where they have originated. It is true that even if the entire human rights scheme would have to be implemented effectively, it will have to be shaped around Bharatiya conceptions of society103

There have been various attempts to blame Western "consumerism and capitalism" for all of India's problems, without acknowledging the growing problems of "rightism"104 It seems from such arguments that the human rights movement is a reflex action against a "feudal and capitalist" society105 All Indian human rights authors, look at Indian society through the blinkers of Western (universal) methodologies, and try to apply the experience of the West, whether it be liberalism, democratisation, Marxism, socialism, secularism and human rightism into society without recognising the context of its Bharatiya ethos. This results then in the need for a reinterpretation of existing Western terms into Indian perspectives106 The attempt to make society more human rights friendly is an attempt to make society more Westernised. Such attempts have failed and will fail leading to the packaging of Bharatiya concepts into human rights terminology, very much like the way McDonald's changes the contents of the Big Mac to the Maharaja Mac in India. This leaves Indians, as fundamentally Bharatiya, with the trappings of the West, very much like the oft-hated Bharatiya consumerism. The more things change the more they remain the same.

Dharmic jurisprudence

It is essential to note that in actuality dharmic jurisprudence functions very differently from the legalistic entitlement-based, rights jurisprudence that we conceptualise as law107

Dharma is both a personal and a universal norm, based on both personal and universal duty (here the word duty is an approximation).

Dharma itself is neither a norm nor a duty but an eternal order of things108 Therefore any dharmic jurisprudence merely indicates a course of action. Justice is a methodology, that which is the most appropriate to balance and realise109 The attempt to classify dharma and dharmic jurisprudence into paradigms of duties is tempting but misleading110 Justice is based on philosophy and its interest is to preserve order in the world and law is a mere facilitator of the process111 In essence law is never a creation of mankind, mankind is a mere participant in the higher order of Rta112 The corollary is that human beings do not have any actual entitlements in the legal system. Upholding dharma becomes every entity's dharma113 Dharma as a result is not composed of absolute injunctions but is relative to every entity in every circumstance114 It relates to whatever is needed to protect the true order, which in other words means that every man has his own law to follow115

Any society which is culturally rooted in dharmic philosophy will never truly be able to incorporate a human rights system without giving up its own civilisational identity116

After all: "One's own dharma, however imperfect, is a safer guide than the dharma of another, however perfect."117

*    BA, LLB (Hons) (NLS), LLM (Leics., UK), Advocate. Return to Text

  1. Huntington, S.: Clash of Civilisations and Remaking of World Order, Penguin Books, New Delhi, 1997. Return to Text
  2. The United Nations has declared the year 2001 (through Resolution No. A/RES/53/22) as the year of "Dialogue Amongst Civilisations", in many ways underscoring the need for a composite multidimensional communication between civilisations. For more documentation (including reports and resolutions) see: . Return to Text
  3. Toynbee, A.: A Study of History, Thames and Hudson Ltd., London, 1972, p. 72. Return to Text
  4. The preamble of the Constitution of India which encapsulates the philosophy on which much of the analysis is predicated; . Return to Text
  5. Vivekananda: "Vedanta as a Factor in Civilisation"- The Complete Works of Swami Vivekanada, Part 1, 4th (Mayavati) Edn., 1923, pp. 382-85. Return to Text
  6. Baxi, U.: Marx, Law and Justice: Indian Perspectives, N.M. Tripathi Ltd, Bombay, 1993, pp. 51-84. Return to Text
  7. See: Bhattacharjee, A.M.: "Preface", Nirmal (Ed.), Human Rights in India, Oxford University Press, Oxford, 1999; pp. ix-xii: Also see: Iyer, V.R. Krishna: Justice at the Crossroads, Deep and Deep Publications, New Delhi, 1994, p. 118. Also see: Mennon, N.R.M.: "State of Economic and Social Rights", Saxena (Ed.), Human Rights: Fifty Years of India's Independence, Gyan Publishing House, 1999, pp. 145-54. Return to Text
  8. It is another matter that Marxists think that Marxism is still relevant. They try to incorporate it through various techniques, either complimenting Marxism or highlighting Marxian approach or suggesting that post-Soviet Union Marxism is being neglected and it needs to be studied. Professor Baxi underlines this dilemma about the dying Marxist analysis in Baxi, U.: Mambrino's Helmet, Har Anand Publications, New Delhi, 1994. Return to Text
  9. The problem with this grouping is the lack of uniformity. It is too fractured in thinking and cannot be classified into strict lines of thought. Return to Text
  10. Haksar, V.: Equality, Liberty and Perfectionism, Oxford University Press, Oxford, 1979. Return to Text
  11. Vijaykumar, V.: "The Workings of the National Human Rights Commission: A Perspective", Human Rights in India, Ed. Nirmal, Oxford University Press, Oxford, 1999, pp. 212-34 (p. 212). Return to Text
  12. Borgohain, B.: Human Rights: Social Justice and Political Challenge, Kanishka Publishers, Distributors, New Delhi, 1999, pp. 1-21. See also: Vijaykumar, V.: "Refugees and Human Rights: National and International Experience", Human Rights in India, Ed. Nirmal, Oxford University Press, Oxford, 1999, pp. 173-86. Return to Text
  13. At the time when the Universal Declaration of Human Rights on December 10, 1948 was adopted there were only 56 States, which were free from colonial rule. Most of the great objectives of the UDHR were inherited. Was there a hidden agenda? The timing is definitely coincidental, as by 1980 most of the world had become independent and therefore not subject to the "dominance" of Western Europe per se. Return to Text
  14. Simon, L. and Nirmal, C.J.: "Fundamental Rights: The Constitutional Context of Human Rights"; supra fn 11, pp. 40-52. Return to Text
  15. Agarwal, H.O.: Implementation of Human Rights and the Law, Kitab Mahal, Allahabad, 1983. Also see: Mani, V.S.: "Human Rights in India: A Survey", Saxena (Ed.), Human Rights: Fifty Years of India's Independence, Gyan Publishing House, 1999, pp. 169-94. Return to Text
  16. P. Nalla Thampy Terah (Dr) v. Union of India, 1985 Supp SCC 189. Return to Text
  17. Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360 where the Supreme Court brought in international documents like UDHR and ICCPR into the interpretation of the content of Article 21 of the Constitution of India. Return to Text
  18. They are supposedly non-justiciable duties cast on the Government to implement under Chapter IV of the Constitution of India. Return to Text
  19. Mathew, K.K.: The Right to Equality and Property under the Indian Constitution, National Publishing House, New Delhi, 1980. See also: Venkatachaliah, M.N.: "Human Rights in India: A Balance Sheet", Saxena (Ed.), Human Rights: Fifty Years of India's Independence, Gyan Publishing House, 1999, pp. 31-37, p. 32. It must be noted here that some Judges in their scholastic writing seem to invert the judicial concepts of justice and stress the Western universal rights paradigm. Return to Text
  20. The perfect example of such writing is M.A. Khan's book on human rights, where he does not touch on the concept of human rights. This is just indicative of the approach of the Indian legal academia. See: Khan, M.A.: Human Rights and Dalits, Begum, Dr M.S. (Ed.), Uppal Publishing House, New Delhi, 1995. See also: Sachar, R.: "The Struggle for Human Rights", Human Rights in India: Issues and Perspectives, Ed. Begum, Dr M.S.: APH Publishing Corporation, New Delhi, 2000, p. 31. Return to Text
  21. Sharma, G.: Distributive Justice under the Indian Constitution, Deep and Deep Publication, New Delhi, 1989, pp. 61-70. Also see: Sharma, G.: Human Rights and Social Justice, Deep and Deep Publications, New Delhi, 1997, pp. 419-21. Return to Text
  22. Jaswal, P.S. and Jaswal, N.: Human Rights and the Law, APH Publishing House, New Delhi, 1996, pp. 260-77. Return to Text
  23. It is important to read the approaches of Mawdudi (See: Mawdudi, A.A.: "Human Rights in Islam", Al Tawhid Journal, IV (3) (1407 Hajira) and Perera (See: Perera, L.P.N.: Buddhism and Human Rights: A Buddhist Commentary on the UDHR, Karunaratne and Sons, Colombo, 1991) here, which in different contexts of Muslim and Buddhist conceptions of human rights use the same approach. To the author it seems to be the easy way out, without working on intricacies of culture or, for that matter, religion. Return to Text
  24. Saberwal, S.: "The Constitution v. India's Entrenched Social Presuppositions", Perspectives on the Constitution, Ed. Kahyap, S.C., Shipra (India International Centre) 1993, p. 276. Return to Text
  25. Gopal, R.: Undemocratic Elements in the Indian Constitution, Somaiyya Publications, Bombay, 1977. Return to Text
  26. Singh, K.J.: Distributive Justice in India, Reliance Publishing House, New Delhi, 1995, pp. 31-48. See also: Singh, B.N.: "The Vision and the Values of the Constitution", Perspectives on the Constitution, Ed. Kahyap, S.C., Shipra (India International Centre) 1993, pp. 19-20. Also see: Ramachandran, V.R.: Fundamental Rights and Constitutional Remedies, Vol. 2, Eastern Book Company, Lucknow, 1982, p. 812. Return to Text
  27. Article 51-A(IV-A) of the Constitution of India stipulates the fundamental duties of the Indian citizen. It is obviously non-enforceable in law. This is a later amendment brought in by the famous Forty-second Amendment Act, 1976, Section 11 (w.e.f. 3-1-1977). The judiciary has at times used these provisions to take the inspiration for their judgments as in P. Nalla Thampy Terah (Dr) v. Union of India, 1985 Supp SCC 189. Return to Text
  28. Singh, K.: "Pillars of Indian Polity", Perspectives on the Constitution, Ed. Kahyap, S.C., Shipra (India International Centre) 1993, p. 12 (p. 14). Also see: Vyas, K.V.: National Integration and the Law, Deep and Deep Publications, New Delhi, 1993, pp. 24-28. Return to Text
  29. Gallanter, M.: Competing Equalities, University of California Press, Berkley, 1984, pp. 547-67. Return to Text
  30. Baxi, U.: Marx, Law and Justice: Indian Perspectives, N.M. Tripathi Ltd., Bombay, 1993, pp. 51-84. Return to Text
  31. Professor Baxi's switch from Marxism to nuanced post-modernism is a masterwork in reorientation and illustrative of the death of Marxism. See ibid. Also see: Baxi, U.: "Human Rights Education: The Promise of the Third Millennium?", <http://www.pdhre.org/dialogue/
    >. Return to Text
  32. This was a favourite methodology amongst the intelligentsia and academics, but today such formulations are few and far between. Dutta, N.: "From Subject to Citizen: Towards a History of the Indian Civil Rights Movement", Ed. Anderson, M.R.: and Guha, S.: Changing Concept of Rights in South Asia, Oxford University Press, Calcutta, 1998, pp. 275-88. Return to Text
  33. See his present stance, which is at great variance from his initial stance on Marxian analysis. There seems to be an almost wistful regret of the demise of Marxism: Baxi, U.: "From Human Rights to the Right to be Human", Inhuman Wrongs and Human Rights: Unconventional Essay, Har Anand Publications, New Delhi, 1994, pp. 1-17. Return to Text
  34. Baxi, U.: "Human Rights Education: The Promise of the Third Millennium?", . Return to Text
  35. Baxi, U.: Mambrino's Helmet, Har Anand Publications, New Delhi, 1994. Return to Text
  36. Ibid. Return to Text
  37. Baxi, U.: Inhuman Wrongs and Human Rights, Har Anand Publications, New Delhi, 1994, pp. 141-55. Return to Text
  38. Ibid. It is also interesting to note that Professor Baxi like some of his contemporaries in the 1980s made tentatively exploratory steps in the formation of alternative jurisprudence away from the rights paradigm in an attempt to make it more indigenous to Bharatiya thought: See: Baxi, U.: Towards a Sociology of Indian Law, Satvahan Publications, New Delhi, 1986, p. 10. But subsequently like a lot of his other contemporaries he slipped into the comfortable rights rhetoric in the 1990s. Return to Text
  39. In a very interesting article Professor Baxi takes on post-cold war Western globalisation ideology and its mimicry by the non-Western elites, for not mentioning non-Western protagonists but forgets that the whole concept of rights itself is of Western experience. He then goes on to propound that some Indian thinkers like Gandhi, Ambedkar in a way had anticipated modern developments in the rights paradigm, a self-contradiction. Further, the universal truths which he holds are themselves uniquely Western (e.g. Marxism): Baxi, U.: "Acquisitive Mimesis in the Theories of Reflexive Globalisation and the Politics of Human Rights", presented at Chicago Humanities Institute, May 9-10, 1996. Return to Text
  40. Dhavan, R.: Amendment: Conspiracy or Revolution, Wheeler Publishing, Allahabad, 1st Edn., 1978, p. 146. It is interesting to see how JP's views on people's participation for "Sampurna Kranti" have influenced parallel thinking on the subject of human rights. See also: Kapoor, R.: "The Essential Predicate of Human Rights — Judicial and Political Activism in India", Human Rights: Problems and Perspectives, Ed. Ponnan, R.: Pudducherry Coop. Book Society, Pondicherry, 1998, p. 207. Return to Text
  41. The concept of total revolution or sampurna kranti as propounded by Jai Prakash Narayan. See: Narayan, J.P.: Jeevan Dan, Sarvodaya Prachuralaya, Tanjore, 1956. Return to Text
  42. Dhavan, R.: Justice on Trial, Wheeler Publishing, Allahabad, 1980. Return to Text
  43. Dhavan, R.: The Supreme Court of India: A Socio-Legal Critique of Juristic Technique, N.M. Tripathi Pvt. Ltd., Bombay, 1977. Return to Text
  44. Ibid., p. 87. Return to Text
  45. Supra fn 54. Return to Text
  46. See interaction with Justice Krishna Iyer in Iyer, V.R. Krishna: The Integral Yoga of Public Law and Development in the Context of India, 1st Edn., the Institute of Constitutional and Parliamentary Studies, New Delhi, 1979, pp. 9-10. Return to Text
  47. He is actually the only person both ideologically and intellectually expected to make the logical jump to the next stage of reasoning, but he stops on the very edge, asking for a reconsideration of traditional principles in terms of Indian law, but does not go so far as Pannikkar for one: Dhavan, R.: "Dharmashastra and Modern Indian Society: A Preliminary Indian Exploration", 34(4) JILI (1992) 515-40. Return to Text
  48. Professor Singh is interestingly silent as to how this change in public law will affect major constitutional principles like the rights paradigm, but he seems to foresee that earlier in the article when he discusses that the whole legal system is prone to challenges as to the essence of its very conception from a variety of angles: Singh, C.: "Dharmashastras and Contemporary Indian Jurisprudence", 32(2) JILI (1990) 179-88. Return to Text
  49. Marc Galanter: Law and Society in Modern India, Oxford University Press, Delhi, 1997, pp. 15-53. Return to Text
  50. Iyer, V.R. Krishna: "Holistic Humanism", Human Rights and the Law, Vedpal Law House, Indore, 1986, pp. 105-16; Iyer, V.R. Krishna: The Integral Yoga of Public Law and Development in the Context of India, 1st Edn., the Institute of Constitutional and Parliamentary Studies, New Delhi, 1979. Return to Text
  51. See: Justice Bhattacharjee's very erudite and indeed controversial reading of the Constitution and its philosophy: Bhattacharjee, A.M.: Hindu Law and the Constitution, 2nd Edn., Eastern Law House, New Delhi, 1994. See also: Bhattacharjee, A.M.: Muslim Law and the Constitution, 2nd Edn., Eastern Law House, Calcutta, 1994. Return to Text
  52. Iyer, V.R. Krishna: Justice at the Crossroads, Deep and Deep Publications, New Delhi, 1994. And also: Bhattacharjee, A.M.: "Preface", Human Rights in India, Ed. Nirmal, Oxford University Press, Oxford, 1999, pp. ix-xii. It is clearly apparent that both of them have a hangover from the days of socialism and Marxist thought. This is reflected in the philosophy they hold forth. A mixture of Marxism and Bharatiyata or Marxist thought formulated in Bharatiya terms is what they try to portray, losing sight of the fact that Marxism is itself outdated conceptually and is no more universal in experience than liberalism. This is very surprising considering that Justice Iyer's book Law and Religion could be used as the fount for all genuine dissent from the materialist and entitlement-based human rights paradigm. See: Iyer, V.R. Krishna: Law and Religion, Deep and Deep Publications, New Delhi, 1984. Return to Text
  53. Iyer, V.R. Krishna: The Integral Yoga of Public Law and Development in the Context of India, 1st Edn., the Institute of Constitutional and Parliamentary Studies, New Delhi, 1979, p. 5. Contra: Justice Iyer's attempt to mix socialism and positivism as the best bet for the Indian legal system: Iyer, V.R. Krishna: Justice at the Crossroads, Deep and Deep Publications, New Delhi, 1994. Also note: Justice Iyer's uniquely brilliant and radical exposition for the need to understand rights in religious terms. Iyer, V.R. Krishna: Law and Religion, Deep and Deep Publications, New Delhi, 1984. It almost seems that in the 1980s Justice Iyer was on the verge of momentously endorsing a new basis of social governance outside the rights paradigm, then retreated to the comfort of socialist platitudes in the 1990s. Return to Text
  54. Iyer, V.R. Krishna: "Holistic Humanism", Human Rights and the Law, Vedpal Law House, Indore, 1986, pp. 105-16. Return to Text
  55. Iyer, V.R. Krishna: Human Rights, Inhuman Wrongs, BR Publishing Corporation, Delhi, 1990, pp. 89-92. Return to Text
  56. See his dispute over the conception of dharma with Dr Dhavan to clearly gauge the reason for his hesitation: Iyer, V.R. Krishna, supra fn 58. Return to Text
  57. Iyer, V.R. Krishna: Law and Religion, Deep and Deep Publications, New Delhi, 1984, pp.132-73. Return to Text
  58. Ibid., pp. 96-104. Return to Text
  59. His argument on the essential rights of "equality", "liberty", "property" and the formulation of these rights is conceptually Western both in structure and in content. See: Bhattacharjee, A.M.: Equality, Liberty and Property, Eastern Law House, Calcutta, 1997, p. 3. Return to Text
  60. Bhattacharjee, A.M.: "Preface", Human Rights in India, Ed. Nirmal, Oxford University Press, Oxford, 1999, pp. ix-xii. Also see: Bhattacharjee, A.M.: Muslim Law and the Constitution, 2nd Edn., Eastern Law House, Calcutta, 1994. Return to Text
  61. Bhattacharjee, A.M.: Hindu Law and the Constitution, 2nd Edn., Eastern Law House, New Delhi, 1994. Return to Text
  62. Ibid., p. 9. Return to Text
  63. Ibid., p. 9. Return to Text
  64. Ibid., p. 7. Return to Text
  65. Ibid., p. 9. Return to Text
  66. Ibid., p. 9, see Justice Ranganath Misra's views which parallel Justice Bhattacharjee: Misra, R.: "Rights of a Child", Human Rights: Fifty Years of India's Independence, Ed. Saxena, K.P., Gyan Publishing House, 1999, pp. 38-46. Return to Text
  67. Ibid., p. 11. Return to Text
  68. Ibid., p. 11. Return to Text
  69. Gupta, R.G.: An Ideal Constitution for India, Padam Prakashan, Kanpur, 1988. See also: Barik, A.: "Indian Constitution from Human Rights Point of View", Human Rights in India: Issues and Perspectives, Ed. Begum, Dr M.S.: APH Publishing Corporation, New Delhi, 2000, pp. 291-302. Return to Text
  70. It is very interesting to read G. Sharma's interpretation that the Constitution of India incorporates the concepts of social justice and dharma. See: Sharma, G.: Human Rights and Social Justice, Deep and Deep Publications, New Delhi, 1997, pp. 408-21. See also: Sharma, D.: "Public Perceptions of Law", Law, Justice and Social Change, Ed. Saxena, D.R., Deep and Deep Publications, New Delhi, 1996, p. 404. Return to Text
  71. Sivaramayya, B.: "Dharmashastras and Contemporary Hindu Law", Dharmashastra in Contemporary Times, Ed. Narang, S., Nag Publishers, Delhi, pp. 67-76. Return to Text
  72. Justice Rama Jois does a fantastic work of tracing every "modernist" concept to ancient Indian (Bharatiya) concepts including that of human rights. See: Jois, R.: Seeds of Modern Public Law in Ancient Indian Jurisprudence, Eastern Book Company, Lucknow, 1990, pp. 1-53. Also see: Narang, A.S.: "Human Rights: Universality versus Specificity", Human Rights in India: Issues and Perspectives, Ed. Begum, Dr M.S.: APH Publishing Corporation, New Delhi, 2000, pp. 143-52. Return to Text
  73. Vishway, L.L.: "Public Perceptions of Law", Law, Justice and Social Change, Ed. Saxena, DR, Deep and Deep Publications, New Delhi, 1996, p. 391. Return to Text
  74. Hindu Declaration of Human Rights, Hindu Studies Review Vol. 1(1); <http://www.csuchico.edu/rs/hsr/
    >. Return to Text
  75. There is the obvious problem of reconciling the concept of human rights with dharma, and the fact that there seems to be very little consensus on a religious level between Hindus on religious philosophy. This is compounded by the fact that Hinduism is hardly a religion in the sense that the West perceives religion. Overall it is an interesting attempt at formulation of alternative human rights, though conceptually choosing the relatively easy way of accepting the broad paradigm, the rhetoric, structure and language of human rights. Return to Text
  76. The theory of "integral humanism" which had been formulated by Deen Dayal Upadhyaya needs to be explored. See: Upadhyaya, D.D.: "Four Lectures Delivered on April 22-26, 1965"; <http://www.bjp.org/philo.htm>. It must be read objectively and not confused with the political ideology which he represented. In this series of lectures he highlights the conflict between India and Bharat and presents the need for a holistic formulation of civilisation- and culture-based social welfare, which he terms as "integral humanism". His theorisation of the need to reject all forms of Western thinking, whether communism, modernism, liberalism or free market ideology holds great relevance in the age of civilisation-based models of behaviour. On the minus side, he does speak about the Nation at great length, forgetting that the concept of the Nation State is a Western invention too, and by the extension of his logic, should be rejected as well. For the purposes of a true formulation of non-Western human welfare paradigms, such concepts of Nation State must be rigorously re-examined and questioned as well. Return to Text
  77. Gandhi had throughout his writings evolved a very complex but intensely Bharatiya model both in terms of economics and of society. He articulated his opposition against Western models of development and social governance through his various writings. He called for a radical reinterpretation of the existent structures which the British and the West had propounded as universal. In his famous book Hind Swaraj he formulated a society on lines which were integrally and uniquely Indian. He rejected the Western paradigms and wanted a holistic and very deeply Bharatiya model of governance. In other words, he rejected Western ideology including that of human rights for one, for a theory which balanced "rights and duties, head and heart, individual and community, faith and reason, economic development and spiritual progress, religious commitment and religious pluralism, self-realisation and political action". See: Heredia, R.C.: "Interpreting Gandhi's Hind Swaraj", Economic and Political Weekly, Vol. 34(24) (June 12, 1999); <http://www.epw.org.in/
    >. Also see: Gandhi, M.K.: Hind Swaraj, Navajeevan Publishing House, Ahmedabad, 1938, pp. 52-57. Also see: Gandhi's virulent attack on the conception of rights and praise for performance of duties as a step in the direction of attaining Swaraj, Gandhi, M.K.: Village Swaraj, Navajeevan Publishing House, Ahmedabad, 1962, p. 7. Return to Text
  78. Father Raimundo Panikkar in his oft-quoted and path-breaking article on human rights and its Western conception clearly states that no one culture, tradition or religion has the right to speak for the whole of humanity. See: Panikkar, R.: "Is the Notion of Human Rights a Western Concept", 120 Diogenes 75. Panikkar takes the conflict into the heart of the human rights debate when he states that there are no trans-cultural values as values are existent only in the cultural context. His arguments against the Western conception of the universal nature of man, democracy and dignity of the human person are seminal in the alternate conceptualisations of human rights. He then contrasts it with the concept of dharma, and states that it would be futile to look for "homeomorphic" equivalents in human rights in a culture based on dharma. He contrasts it with the "Indian" thought of Hinduism, Buddhism and Jainism. He attacks the concept on various grounds in terms of structural individual formulation of rights, the fact that the individual is the basis of these rights, that rights are absolute, that rights are only for humans, that human rights consist only of rights amongst others. In conclusion he says that though human rights should not be discarded but it must be considered that other alternative formulations should also be given room to develop. Return to Text
  79. Menski is very clear that what the Indian courts pass off as human rights cases (including the famous concept of public interest litigation) is an expression of dharma in disguise. See: Menski, W.F.: Indian Legal Systems Past and Present, School of Oriental and African Studies, London, 1997, pp. 52-54. Menski quite clearly has been advocating against the deliberate disregard for indigenous legal structures and remedies. See: Menski, W.F.: "Uniform Civil Code in India: A False Model of Development", 1990 (2) KLT 3. Return to Text
  80. Weber, J.G.: "Environmental Law, Dharma and Judicial Silence in a Secular Democracy", (1998) 1 KLT 16. Return to Text
  81. Ibid., p. 22. Return to Text
  82. "India that is Bharat" is a direct quote from Article 1 of the Constitution of India. The problem is that India and Bharat seem to be quite different perceptions. While India is a "Modernist and Westernised" Nation State, Bharat seems to be an ancient civilisation and people. The problems between both, have been greatly commented upon and written about. See: Jois, R.: "Let India become Bharat", Indian Express, 1997, <http://members.tripod.co.uk/India2050/ Bharat.html > Return to Text
  83. The attempt of the Sri Lankan author Perera to trace all possible human rights of the UDHR to Buddhist texts and teachings is another expression of the inherent belief in the supremacy of the human rights as a paradigm: Perera, L.P.N.: Buddhism and Human Rights: A Buddhist Commentary on the UDHR, Karunaratne and Sons, Colombo, 1991, p. 24. Return to Text
  84. Brohi, A.K.: "Islam and Human Rights", PLD Lahore 28 (1976), p.148. Also see: Mawdudi, A.A.: "Human Rights in Islam, Al Tawhid Journal, IV (3) (1407 Hajira). Return to Text
  85. Riffat Hassan's formulation is slightly different in that she says that Islamic law provides the boundaries of human rights and avoids getting into the controversy of the conflict of conceptions, very wise, considering her inherently contradictory views on rights of minorities in Islamic and non-Islamic States. See: Hassan, R.: "Are Human Rights Compatible with Islam"; . Also see: Hassan, R.: "Religious Human Rights and the Qur'an", <http://www.lw.edu/EILR/volumes/
    spring96/ hassan.html
    >. Return to Text
  86. Traer, R.: "Buddhist Affirmations of Human Rights", 8 Buddhist Christian Studies (1988) 13. The article discusses the concept of the subcontinental formulation of human rights including the views of the greatest Indian Buddhist of modern times, B.R. Ambedkar. Return to Text
  87. This is the possible reason why there has been no official document signed on the area of human rights under SAARC, most of the human rights initiatives have been from liberal NGOs and lawyers. See: Basnet, M.: "South Asia's Regional Initiative on Human Rights", <http://www.wcl.american.edu/pub/
    >. Return to Text
  88. See the views of Anwar Ibrahim before he became a victim of the very system that he proposed: Ibrahim, A.: "The International Conference for Rethinking of Human Rights, Kuala Lumpur, 7 December, 1994", <http://ikdasar.tripod.com/anwar/94-29.htm>. Return to Text
  89. Mahbubani, K.: "Can Asians Think?", The National Interest, Summer 1998, <http://www.idea-tr.com/okumalar/mahbubani/
    >. Also see: Kausikan, B.: "East Asian Approaches to Human Rights", 82 ASIL Proc ( 1995) 146. Return to Text
  90. The official Chinese position is made out by President Jiang Zemin: "Jiang Zemin Interviewed by Jim Lehrer", PBS News Hour (October 30, 1997), Online Transcript, <http://www.pbs.org/newshour/bb/asia/
    >. Return to Text
  91. Ghai, Y.: "The Asian Perspective on Human Rights", Perspectives on Human Rights, Ed. Gupta, V.K., Vikas Publishing Ltd., 1996, pp. 22-38. Return to Text
  92. These would be consistent with the very idea of dharma, since the basic conception of dharma states that the concept of dharma is relative and personal. Therefore it is possible to foresee other countervailing dharmic obligations for the followers of Islam. The method of dispute resolution must be a method which reconciles various dharmas in such cases. As a result any rush to judgment (specially attempts to codify it on the lines of Western thinking) on the subject of personal laws is therefore counterproductive from the point of view of Bharatiya jurisprudence. See: Menski, W.: "Development in Muslim Law: The South Asian Context", (2000) 3 SCC (Jour) 9. Return to Text
  93. There has also been strong Buddhist rejection of the rights rhetoric as inconsistent with Buddhist values and philosophy based on the very concept of dhamma or dharma, very much on the lines of the Bharatiya argument. See: Junger, P.: "Why the Buddha Has No Rights", Buddhist Ethics, Online Conference, Buddhism and Human Rights, . Return to Text
  94. Supra fn 90. Return to Text
  95. The striking resemblance between liberal democracy, socialism, marxism, post-modernism and even fascism is that they assume that they are universal and applicable on all cultures of the world and that the conflicts between them are of universal consequence. It is contended that such is nearly impossible if the supposition is not based on the premise that the history is linear and the present Western civilisation is the culmination of human achievement and is the "Universal Civilisation". See: Fukuyama, F.: End of History and the Last Man, Penguin Books, London, 1992, pp. xi-xxiii. Return to Text
  96. In India, this seems to have been noticed by Menski (supra fn 91), who mentions the slow movement into cultural-social governmental models, while nominally conforming to the universal methodology. Jiang (supra fn 103.), Mahbubani (supra fn 101) seem to be charting out the future contours of the conflict of values of civilisations. Return to Text
  97. See Weber, supra fn 92. Return to Text
  98. In Professor Amartya Sen's critique of the Asian values debate he tries to point out the existence of human rights in ancient India and China amongst others. See: Amartya Sen's brilliant critique on Asian values. See: Sen, A.: "Human Rights and Asian Values", the New Republic, July 14-21, 1997. Also see: Sen, A.: "Human Rights and the Westernising Illusion", Jan-Feb, (1999)(3)(1) CivNet Journal; <http://www.civnet.org/journal/vol3no1/
    >. Return to Text
  99. Kothari, R.: "Human Rights — A Movement in Search of Theory", Lokayan Bulletin, 5:4/5 (1987) 17-27. Return to Text
  100. See: Peerenbhom, R.P.: "What's Wrong with Chinese Rights: Towards a Theory of Rights with Chinese Characteristics", 6 Harv. Human Rights Journal 29. Return to Text
  101. The interaction of culture and social governance is very complicated, nuanced, intricate yet very distinct in its impact as to how it shapes social institutions like individual and group perception of "rights", "democracy" amongst other concepts. See: Inglehart, R.: "Culture and Democracy", Culture Matters: How Values Shape Human Progress, Huntington, S. and Harrison, L. (Ed.), Basic Books, New York, 2000, pp. 80-97. Return to Text
  102. "The jural postulates which are held to be universal are dependent on civilisational underpinnings. And jural postulates of that civilisation are reflected in the legal institutions and precepts and doctrines." See: Pound, R.: Jurisprudence, Vol. 3, West Publishing Co., St. Paul, Minnesota, 1959, p. 15. Human rights are but such jural postulates of a certain civilisational society. Return to Text
  103. Judicial concentration on social justice, whether it be in the substantive or procedural law is an indicator, that makes implementation of rights not enough for social welfare, "justice" being considered extremely important. See: Menski, W. (supra fn 91). Return to Text
  104. Witness Professor Baxi's class tirade: Baxi, U.: "From Human Rights to the Right to be Human", Inhuman Wrongs and Human Rights: Unconventional Essays, Har Anand Publications, New Delhi, 1994, pp. 1-17. Return to Text
  105. It is interesting to read even the radical bahujandalitist Kancha Illiah's take on human rights, where he is reluctant to endorse the totality of the Western human rights ideology. Though again he seems to be self-confessedly a Marxist in disguise: "The State of Dalit Mobilisation: An Interview with Dr Kancha Illiah", Nov 1997, Ghadar Magazine; <http://www.sangat.org/previous/
    >. Return to Text
  106. Witness the changing definition of secularism to suit Indian society as per the Supreme Court of India: Banerjee, V. and Malik, S.: "Changing Perceptions of Secularism", 1998 (7) SCC (J) 3. Return to Text
  107. This is obviously antithetical to the Kantian conception of law which is individualist by nature, oriented to the maximisation of liberty and is the source of most of modern rights jurisprudence. Witness the withering criticism of Kantian legal philosophy by Roscoe Pound for being unable to comprehend the need for a civilisation-based legal system (even in Western terms) and Pound's enunciation of an alternate legal philosophy based on the "Theory of Interests" which addressed this need for integrating civilisation and law. See: McLean, E.B.: Law and Civilization: The Legal Thought of Roscoe Pound, University Press of America, New York, 1992, pp. 103-248. Return to Text
  108. For a very succinct "modernist" interpretation see: Altekar, A.S.: State and Government in Ancient India, Motilal Banarasidas Publishers Pvt. Ltd., Delhi, 1955, pp. 259-61. It must however be stated that this definition put forward by Altekar is not exhaustive in any respect and is reflective of the attempt to "modernise" (or westernise in rhetoric if not in content) the concept of dharma. Contrast this with the very nuanced and much more authoritative view of Lingat. See: Lingat, R.: The Classical Law of India, Oxford University Press, Delhi, 1998, pp. 3-7. Return to Text
  109. Lingat, R.: The Classical Law of India, Oxford University Press, Delhi, 1998. Return to Text
  110. Singh, B.: Dharma, Arnold Heinemann, New Delhi, 1981, p. 64. Contrast it with P.N. Sen's translation of dharma as duty and the inherent contradictions created are apparent. See: Sen, P.N.: General Principles of Hindu Jurisprudence, Allahabad Law Agency, Allahabad, 1984. Return to Text
  111. Gupta, V.K.: Kautilyan Jurisprudence, B.D. Gupta, Delhi, 1998. It is in this context of "duty" to the eternal law, which seems to be misinterpreted to construe Bharatiya law as creating a web of duties rather than a web of rights of the west. Return to Text
  112. Singh, B.: Hindu Ethics, Arnold Heinemann, New Delhi, 1984, p. 19. See also: supra fn 90. Return to Text
  113. Supra fn 91. Return to Text
  114. Supra fn 122, p. 90. Return to Text
  115. Supra fn 124, p. 34. Return to Text
  116. It is important here to note what Gandhi had to say about the dangerous slavery of the civilisation of India to Western civilisation. See: Gandhi, M.K.: Hind Swaraj, Navajeevan Publishing House, Ahmedabad, 1938, p. 56.
    * The Indian academia seems to have completely missed this important fact while constructing its theories on human rights in India.
  117. The Bhagawad Gita, XVIII-47, P. Lal, Lotus Collection (Roli Books), 1994, p. 185. Return to Text
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