We hear a lot of talk today of how the human rights situation today in India is very bad , and how we need to improve the situation of human rights in India . However it is apparent that we have in the nearly 60 years after formulating the Constitution and after giving “ourselves” fundamental rights have not been able to fulfill all the mighty objectives which we laid out in the Constitution . The question is , is it our fault ? or , is it the fault of the idea itself …… that is , can the fault not be with us ,but with the concept of human rights itself ? In other words are “we” different and do we as a society have different methods of governance than the conception of “rights” which we have tried to use as the basis of our legal system from the time of the British and subsequently enshrined as “fundamental rights” from the time the Constitution was framed .
We know it is often argued that Human Rights are universal and if not universal , then they show universal values , which were there in every culture , including ours , but as all of us are aware , human rights is a relatively a new invention from the 17th –18th century Western Europe . To those whom this sounds shocking I would ask them to try to find a true and absolute alternative to the word “human rights” in any Indian language and I am sure they will know what I mean . Neither does the word “Adhikar” nor the word “Haq” , which are the most often used to denote the word “Rights” , correctly denotes the word . This is not only our realization but the realization of various different cultures from across the world including the Japanese , Chinese , Russian , Buddhist , African and Middle Eastern .
The Buddhist thinkers from South East Asia have been aggressively stating that the conception of “Human Rights should be replaced by the conception of Dharma” .
The famous half Spanish- half Indian , Raimundo Panikkar founder of the very conservative Christian Opus Dei sect , who subsequently famously declared that Jesus was only one of the ways to salvation and was condemned by the Pope to silence for that, wrote in his famous article “ Is the notion of Human Rights a Western Concept ?” 120 Diogenes 75 , “Dharma ( dhamma) is perhaps the most fundamental word in the Indian tradition which could lead us to the discovery of a possible homeomorphic symbol corresponding to the Western notion of “Human Rights”.”
However Mahatma Gandhi had come to this realization long time ago and in his only political treatise and his political manifesto “Hind Swaraj” , Gandhiji had spoken about the dangers of confirming to “Modern Civilisation” and spoke about the need to define governance and predicate rights upon performance of duties in an unique manner.
Subsequently , Pandit Deen Dayal Upadhyaya in his treatise “ Intergral Humanism” had formulated the conception of integral humanism , which rejected , all the “isms” of the west . He tried to formulate an unique formulation of social governance which was uniquely Indian and based on Dharmic principles .
In Bharat our system of governance has always been based on “Dharma” and not on a conception of “Rights” as in the West.
It is essential to note that in actuality dharmic jurisprudence functions very differently from the legalistic entitlement-based, rights jurisprudence that we conceptualise as law.
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 things. Therefore any dharmic jurisprudence merely indicates a course of action. Justice is a methodology, that which is the most appropriate to balance and realize. The attempt to classify dharma and dharmic jurisprudence into paradigms of duties is tempting but misleading. Justice is based on philosophy and its interest is to preserve order in the world and law is a mere facilitator of the process. In essence law is never a creation of mankind, mankind is a mere participant in the higher order of Rta.The corollary is that human beings do not have any actual entitlements in the legal system. Upholding dharma becomes every entity's dharma. Dharma as a result is not composed of absolute injunctions but is relative to every entity in every circumstance.It relates to whatever is needed to protect the true order, which in other words means that every man has his own law to follow. The object of the Rajan is to use danda to ensure that every person follows their own dharma and nobody falls into adharma.
The Indian Supreme Court has in Narayan Dikshitilu v. State of Andhra Pradesh 1996 (9) SCC 548 , clearly enunciated that the basis of our modern legal system is our culture rooted in dharma . In the judgment the Hon’ble Court has gone into great detail as to what is the actual meaning of dharma and how that can be used as a means of social governance. The Supreme Court has in a number of judgments further indirectly relied on the fact of Dharma being the bedrock of our civilization to formulate and strengthen it’s logic. In Schedule Castes and Schedule Tribes Officers Welfare Association v. State of U.P. 1997 (1) SCC 701 the Hon’ble Supreme Court held forth as to why Dharma should be the basis of governance.
However , the question which arises is , is it presently possible to have a legal system based on Indian thought ? or is it too utopian and therefore unworkable , in the present world ? The answer to that is that yes , it is workable and a system outside the human rights / fundamental rights and any other system of rights can be framed and worked , and anyway what is the worth of dismissing something outright without even considering it let alone try it out .
The next question is how ? The answer is two fold .
(a) The first is the radical option of trying to frame and formulate a system of laws which brings this unique social governance model into effect . We need to look at the laws in South East Asia , like Thailand and Cambodia , as to how the system would work , in the present day , if indeed we are to look forward to formulating an alternate system . We also need to explore as to how the models of Vijayanagar and Rajput kingdoms handled the resolution disputes , and what are the models which we still have which reflect our culture and our values , and how these institutions can be replicated at a national level for governance.
(b) The second , is that we are already moving towards the same at least in the rulings on Constitutional jurisprudence , which form the governing system of the country and the examples are many . Professor Werner Menski of the School of Oriental and African Studies , has noted that the Indian Courts have by expanding the right to life , by diluting the conception of locus standii and by initiating the concept of public interest litigation , have indeed gone back to it’s roots . Interestingly the Supreme Courts views of “Secularism” to mean “ Sarva Dharma Samabhava” is another example of this logic . Many would also say that this explains the Courts views on a number of issues including “Supremacy of Judiciary” and “terrorism”. Some would also say the legislatures actions regarding the “Panchayati amendments” , “Fundamental Duties amendments” and “Directive Principles amendments – wherein it was attempted to make DPSP’s superior to Fundamental Rights” , were examples of this national tendency. However , the actions of the legislature has been influenced by mean and short term political considerations and not by any genuine intention to formulate alternate models of governance for India.
It is apparent that large sections of the country are getting disillusioned with the entire legal system and governmental structure , the problem is clearly not of the structures but the fact that the culture of the structures and the culture of the governed do not match each other , and they never will , since it is not possible for us to become Western Europeans , however much some of us may try to be . It is therefore crucial now , more than ever that we try to formulate Bharatiya models of social governance , otherwise the people will use force to change the structures that are foreign to them , witness what happened to the Mughals and the British . It is time for us to make the change……as lawyers it is imperative that we become the change we want to bring and we are the best positioned to make the change …..
We know it is often argued that Human Rights are universal and if not universal , then they show universal values , which were there in every culture , including ours , but as all of us are aware , human rights is a relatively a new invention from the 17th –18th century Western Europe . To those whom this sounds shocking I would ask them to try to find a true and absolute alternative to the word “human rights” in any Indian language and I am sure they will know what I mean . Neither does the word “Adhikar” nor the word “Haq” , which are the most often used to denote the word “Rights” , correctly denotes the word . This is not only our realization but the realization of various different cultures from across the world including the Japanese , Chinese , Russian , Buddhist , African and Middle Eastern .
The Buddhist thinkers from South East Asia have been aggressively stating that the conception of “Human Rights should be replaced by the conception of Dharma” .
The famous half Spanish- half Indian , Raimundo Panikkar founder of the very conservative Christian Opus Dei sect , who subsequently famously declared that Jesus was only one of the ways to salvation and was condemned by the Pope to silence for that, wrote in his famous article “ Is the notion of Human Rights a Western Concept ?” 120 Diogenes 75 , “Dharma ( dhamma) is perhaps the most fundamental word in the Indian tradition which could lead us to the discovery of a possible homeomorphic symbol corresponding to the Western notion of “Human Rights”.”
However Mahatma Gandhi had come to this realization long time ago and in his only political treatise and his political manifesto “Hind Swaraj” , Gandhiji had spoken about the dangers of confirming to “Modern Civilisation” and spoke about the need to define governance and predicate rights upon performance of duties in an unique manner.
Subsequently , Pandit Deen Dayal Upadhyaya in his treatise “ Intergral Humanism” had formulated the conception of integral humanism , which rejected , all the “isms” of the west . He tried to formulate an unique formulation of social governance which was uniquely Indian and based on Dharmic principles .
In Bharat our system of governance has always been based on “Dharma” and not on a conception of “Rights” as in the West.
It is essential to note that in actuality dharmic jurisprudence functions very differently from the legalistic entitlement-based, rights jurisprudence that we conceptualise as law.
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 things. Therefore any dharmic jurisprudence merely indicates a course of action. Justice is a methodology, that which is the most appropriate to balance and realize. The attempt to classify dharma and dharmic jurisprudence into paradigms of duties is tempting but misleading. Justice is based on philosophy and its interest is to preserve order in the world and law is a mere facilitator of the process. In essence law is never a creation of mankind, mankind is a mere participant in the higher order of Rta.The corollary is that human beings do not have any actual entitlements in the legal system. Upholding dharma becomes every entity's dharma. Dharma as a result is not composed of absolute injunctions but is relative to every entity in every circumstance.It relates to whatever is needed to protect the true order, which in other words means that every man has his own law to follow. The object of the Rajan is to use danda to ensure that every person follows their own dharma and nobody falls into adharma.
The Indian Supreme Court has in Narayan Dikshitilu v. State of Andhra Pradesh 1996 (9) SCC 548 , clearly enunciated that the basis of our modern legal system is our culture rooted in dharma . In the judgment the Hon’ble Court has gone into great detail as to what is the actual meaning of dharma and how that can be used as a means of social governance. The Supreme Court has in a number of judgments further indirectly relied on the fact of Dharma being the bedrock of our civilization to formulate and strengthen it’s logic. In Schedule Castes and Schedule Tribes Officers Welfare Association v. State of U.P. 1997 (1) SCC 701 the Hon’ble Supreme Court held forth as to why Dharma should be the basis of governance.
However , the question which arises is , is it presently possible to have a legal system based on Indian thought ? or is it too utopian and therefore unworkable , in the present world ? The answer to that is that yes , it is workable and a system outside the human rights / fundamental rights and any other system of rights can be framed and worked , and anyway what is the worth of dismissing something outright without even considering it let alone try it out .
The next question is how ? The answer is two fold .
(a) The first is the radical option of trying to frame and formulate a system of laws which brings this unique social governance model into effect . We need to look at the laws in South East Asia , like Thailand and Cambodia , as to how the system would work , in the present day , if indeed we are to look forward to formulating an alternate system . We also need to explore as to how the models of Vijayanagar and Rajput kingdoms handled the resolution disputes , and what are the models which we still have which reflect our culture and our values , and how these institutions can be replicated at a national level for governance.
(b) The second , is that we are already moving towards the same at least in the rulings on Constitutional jurisprudence , which form the governing system of the country and the examples are many . Professor Werner Menski of the School of Oriental and African Studies , has noted that the Indian Courts have by expanding the right to life , by diluting the conception of locus standii and by initiating the concept of public interest litigation , have indeed gone back to it’s roots . Interestingly the Supreme Courts views of “Secularism” to mean “ Sarva Dharma Samabhava” is another example of this logic . Many would also say that this explains the Courts views on a number of issues including “Supremacy of Judiciary” and “terrorism”. Some would also say the legislatures actions regarding the “Panchayati amendments” , “Fundamental Duties amendments” and “Directive Principles amendments – wherein it was attempted to make DPSP’s superior to Fundamental Rights” , were examples of this national tendency. However , the actions of the legislature has been influenced by mean and short term political considerations and not by any genuine intention to formulate alternate models of governance for India.
It is apparent that large sections of the country are getting disillusioned with the entire legal system and governmental structure , the problem is clearly not of the structures but the fact that the culture of the structures and the culture of the governed do not match each other , and they never will , since it is not possible for us to become Western Europeans , however much some of us may try to be . It is therefore crucial now , more than ever that we try to formulate Bharatiya models of social governance , otherwise the people will use force to change the structures that are foreign to them , witness what happened to the Mughals and the British . It is time for us to make the change……as lawyers it is imperative that we become the change we want to bring and we are the best positioned to make the change …..
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