Key Concepts and Theories

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POLITICAL SCIENCE

KEY CONCEPTS AND THEORIES

AUTHOR

V.R. MEHTA

EDITOR

NALINIPANT

Textbook for Class XII


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CONTENTS

Unit I : Key Concepts: Indian and Western Perspectives 1

1. Law 32. Liberty 93. Equality 194. Justice 235. Human Rights 306. Dharma 36

Unit II : State and the Citizen 41

7. Rights and Duties : Meaning and Relationship 438. The Changing Nature of State Activity 52

Unit III : Comparative Politics 57

9. Approaches to the Study of Comparative Politics : 59Traditional and Modern

10. Political Socialisation, Political Participation and 65Political Development

11. Modes of Representation 74

Unit IV : Major Political Theories 79

12. Liberalism 8113. Socialism 8714. Marxism 92

15. Fascism 10016. Gandhism 10617. Humanism 113

GLOSSARY 117
http://chapter1.pdf/http://chapter1.pdf/http://chapter1.pdf/http://chapter1.pdf/http://chapter1.pdf/http://chapter2.pdf/http://chapter2.pdf/http://chapter2.pdf/http://chapter3.pdf/http://chapter3.pdf/http://chapter3.pdf/http://chapter4.pdf/http://chapter4.pdf/http://chapter4.pdf/http://chapter5.pdf/http://chapter5.pdf/http://chapter5.pdf/http://chapter6.pdf/http://chapter6.pdf/http://chapter6.pdf/http://chapter7.pdf/http://chapter7.pdf/http://chapter7.pdf/http://chapter7.pdf/http://chapter7.pdf/http://chapter8.pdf/http://chapter8.pdf/http://chapter8.pdf/http://chapter9.pdf/http://chapter9.pdf/http://chapter9.pdf/http://chapter9.pdf/http://chapter9.pdf/http://chapter10.pdf/http://chapter10.pdf/http://chapter10.pdf/http://chapter10.pdf/http://chapter11.pdf/http://chapter11.pdf/http://chapter11.pdf/http://chapter12.pdf/http://chapter12.pdf/http://chapter12.pdf/http://chapter12.pdf/http://chapter12.pdf/http://chapter13.pdf/http://chapter13.pdf/http://chapter13.pdf/http://chapter14.pdf/http://chapter14.pdf/http://chapter14.pdf/http://chapter15.pdf/http://chapter15.pdf/http://chapter15.pdf/http://chapter16.pdf/http://chapter16.pdf/http://chapter16.pdf/http://chapter17.pdf/http://chapter17.pdf/http://chapter17.pdf/http://glossary.pdf/http://glossary.pdf/http://glossary.pdf/http://glossary.pdf/http://chapter17.pdf/http://chapter16.pdf/http://chapter15.pdf/http://chapter14.pdf/http://chapter13.pdf/http://chapter12.pdf/http://chapter11.pdf/http://chapter10.pdf/http://chapter9.pdf/http://chapter8.pdf/http://chapter7.pdf/http://chapter6.pdf/http://chapter5.pdf/http://chapter4.pdf/http://chapter3.pdf/http://chapter2.pdf/http://chapter1.pdf/


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UNITI

KEYCONCEPTS

INDIANANDWESTERNPERSPECTIVES


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2 POLITICAL SCIENCE : KEY CONCEPTS AND THEORIES


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3

Law

CHAPTER1

WHATISLAW?

THE term law has differentconnotations. There is natural law,moral law, law of supply and demandand law of the state. It may mean rules

telling us what we ought to do (morallaw). It may also imply that there are

certain regularities in nature or society.The first is a normative view and the

second positivistic view. The normative

view tends to argue that laws embody

fundamental truth about processes ofnature, while the positivists argue thatlaws are rules of conduct in a defined

community. They are a system of legalconditions to regulate human conduct

in society. To Austin it was a commandof a sovereign to all others in society

having for its sanction the force of thephysical power of the state. Holland

declared: A law is a general rule of

external action enforced by a sovereign

political authority. According to thisview law is a relationship between a

superior and inferiors who are in a

condition of habitual obedience.Making a distinction between the

moral and the state law, some theoristsmaintain that the existence of law is

dependent on its moral validity; whileothers hold that the validity of law ispurely a technical question. It can only

be decided in terms of legal criteriaavailable at a particular time. A Law is

a law, right or wrong, if it has receivedthe approval of the decision-making

body of the state. However, whenever

there is a conflict between enacted lawand the moral order, such enactmentlacks legitimacy in the eyes of the

people. Barker emphasised the same

idea when he said that every law musthave validity as well as value; validity

refers to the formal character of law andvalue to the moral sense of the

community. If a legal judgement is inaccordance with the law, it has to be

accepted. However, acceptance of ajudgement rests on the communitys

sense of right and justice. In short, alaw has to be seen in totality in which

both legal and moral aspects merge with

each other.Another aspect of the debate is the

relation between coercion andobligation in a legal system. Positivists

maintain that citizens are obliged toobey law. Those who disobey a law are

liable to be punished by the coercive


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power of the state. Whatever be thenature of law, the important thing is theauthority of the state behind it. Citizensdo not have any choice. Such coercivequality is less noticeable in certainareas of law, as for example inInternational Law. But positivistsregard coerciveness as the essence ofthe obligatory nature of law. This viewis contested on three grounds :

(i) Not all laws impose obligation.

Many laws confer enjoyment ofpowers or rights. Such laws arethe best example where nocoercion is implied.

(ii) The existence of obligation underlaw depends on its being morally

valid. Rousseau maintained thatour obligation to obey a particularlaw can be moral only when weare impelled to obey a system oflaw out of a sense of duty,perhaps by promptings of our

moral consciousness without anycompulsion from external power.Force reduces human beings toabject slavery. Therefore, it cannot

be a legitimate basis of law. Mightcan never be the basis of right.Rousseau emphatically declaredthat to yield to force may be anact of prudence. In this case,therefore, legal obligation

becomes derivative of politicalobligation which, in turn,

depends on the general beliefabout the legitimacy of authority.

(iii) Law also has to be viewed as a partof the institutional system insociety. Courts do not deliver

judgements in isolation. Besides

judiciary, there are otherorganised social institutions aslegislature, executive and politicalparties. The entire legal system isdependent on them and cannotfunction in isolation from politics,society and economy. It is in thissense that legal order is related tothe protection of rights andsecuring social justice to all. Theseare the grounds for imposition oflegal obligations and not only theresults of those obligations. Ourobligation to obey law largelydepends upon the ends which itfulfils, and the feeling of identity

which is generated in the mindsof citizens by upholding a systemof justice, fairness and right.

In this sense, a law has to combineboth what Dworkin has ca ll edprinciple and policy. While

Principle is identical with rights,policy is identical with utility. Rightsare claims secured to individuals as amatter of principle and justice; policiesrefer to the collective good of thecommunity as a whole. The system oflaw should be such as would combine

both. It is in this sense that positivistview of law cannot be detached from themoral view.

The Marxian system has adistinctive view. It rejects the notion

that there is a universal system of law.Lenin once said, Law is politics. Inthe Communist countries, particularlythe erstwhile Soviet Union, law isdeclared as class law andproletarian law. The Soviet system,


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5LAW

therefore, viewed law as an instrumentfor the realisation of class ideology.

They also regarded International lawas an instrument to advance the goalsof the Soviet society.

In view of what has been said, it isdifficult to give an exact definition oflaw. However, a working definition could

be: A law is a set of generally acceptedrules and regulations governing

interrelationships in human societyseeking to create order and balanceddevelopment of all .

SOURCESOFLAW

Where does law come from? Thesources of law can be varied. Theidealistic source of law is natural law.It is often referred to as expression ofright reason of man. It is supposed toembody universal common agreement

based on human intelligence andunderstanding. In ancient India,Dharmawas one such concept. It wasconcerned with goals of law. But veryfew agree about the content of eithernatural law or principles of Dharma.

The other sources of law areconstitutions, statutes, conventions,treaties, administrative rules andregulations. The orders of the executiveand decisions of the courts are also thesources of law.

Austin described law as acommand of the sovereign who receiveshabitual obedience from the peopleliving within his jurisdiction. For him,authority rather than right reason wasthe source of law.

TYPESOFLAW

There are two kinds of laws, viz. privateand public. A private law refers to thoserights, goods and services which would

be secured tothe individual regardlessof the existence of the state. It includessuch things as family laws, propertylaws and laws of succession. In suchcases the role ofthe state is merely torecognise and enforce the relevant law.

Public law, on the other hand, is relatedto the rights of the citizens and the state.

Some ofthe examples ofthe publiclaw are international law, municipallaw, constitutional law, administrativelaw, etc. International law is a set ofgenerally accepted rules andregulations controlling the conducts ofnations, international organisationsand individuals. It is different fromMunicipal law which deals with therelationship between the individualsand their organisations within a state.

While each state has its own municipallaws, the international law is commonto all states and individuals. TheInternational Court of Justice ischarged with the responsibility ofadjudicating the controversies arisingunder International law.

Constitutional law is a set ofstandards, rules and practicescontrolling the functions and powers of

the Government and its subsidiarymachineries. In our system, theSupreme Court of India is the highestcourt entrusted with the task ofadjudicating disputes arising out of theconstitutional law.


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The private law, thus, refers to civilsociety while the public law refers tothe state. However, society has twokinds of law. A family cannot be isolatedfrom property and property is integrallyrelated to the system of taxation, tortsand contracts. It is for this reason thatsome people believe that there can beno differentiation between differenttypes of law.

Whatever the distinction between

public and private law, the indisputablefact is that law is almost a universalhuman need. No society can exist

wi thout a legal order. We needinstitutions and a framework of rulesand regulations to provide firmness toour mutual relations. Without law there

would be complete anarchy in society.That is why we regard Rule of Law asthe essence of civilised living. It providescertainty to our relationships. Itemphasises that laws ought to begeneral in character so that there is noarbitrariness in their exercise. It alsoemphasises complete equality beforelaw and equal conformity to law byofficials and individuals.

Let us emphasise, however, that alllaws are not conducive to human goodor protect our rights or help those whoare the least advantaged by the system.In fact, there are laws, which tend todestroy our freedom and humanity.

Rowlatt Act of 1919 was one such law.It led to Jallianwala Bagh tragedy.

LAWANDMORALITY

The relationship between law andmorality is complex. As we have already

seen, issues about law are not as simpleas they appear. There is no agreementabout the nature of morality either. Weshall not go into what constitutesmorality. Here we shall only briefly statethe relationship between law andmorality

There are people who believe thatthere is no connection between law andmorality. Law is something definite andobjective and has nothing to do with

morality which is vague and subjective.According to them, law is not concernedwith values. Good and just are notits subject matter. It is concerned withwhat is and not with what ought to

be. It is argued that moral concepts areessentially contested and in case of adispute one is helpless. But in the caseof law there are courts to adjudicateand give a firm interpretation.

It is true that both the words do notmean the same thing. A thing may belegally right and morally wrong. When

we say that an action is legal all that ismeant is that it is in accordance withthe law of the day. When we say that aparticular action is moral, all that ismeant is that it is in accordance withaccepted norms of the society. Thisdistinction helps us to differentiate legaland moral aspects of law.

However, it should be clear thatsometimes moral and legal

considerations overlap. In fact, moralconsiderations have influenced themaking or enforcement of laws andconversely, morality itself has beenshaped by laws. Both of them interact

with each other. As we have seen, weare morally obliged to obey the laws of


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7LAW

our country. But if laws lose moralaspect, they will not be effective. Thenotions of value and rightness in thelegal system are tied to its being moralin the eyes of the people.

There is another sense in whichmorality is relevant to law. Whenever alaw is not clear, the judges use theconcepts of natural law, equity and

justice to decide the issue. Again, thereare situations when law has to

pronounce judgement on moral issues.For instance, laws of marriage. In allcases law will have to decide in thecontext of the moral character of theparties involved. In deciding cases of libelor slander the courts take moralconsiderations into account. In fact allcourts insist on taking oath by

witnesses. It will be meaningless if moralobligation meant nothing. Questions ofgood faith and moral intent keep arisingfrom time to time.

Law is also used to protect andenforce morality. At least that is the viewthe ancient Indians took when theythought of law in the context ofDharma.Law cannot be viewed in isolation. It is apart of society and is interwoven into itsfabric. That is why law deals withmurder, theft, perjury, incest, cruelty toanimals. All these are prohibited by lawand are contrary to morality. What isconsidered as harmful depends

generally upon the common values of acommunity.There are different views of morality.

Many levels and stages of argumentcome into play. There are individualmoralities for which each individualtakes responsibility upon himself. There

are collective moralities also which stresson the social side of moral behaviour.

These moralities are also known as publicmorality. Some laws may offend ourpersonal morality and we may have todecide on our own whether to obey suchlaws or to offer resistence. Similarly, somelaws may be incompatible with collectivemorality morality of tribes. However,there is a general agreement that as faras possible, the state should not attempt

to enforce personal morality. As far as thepublic morality is concerned, therelationship is complex. Sometimes lawembodies it. But at times we know that aparticular thing is against public moralityand therefore we would not like the stateto enforce it. Lying is against all moralprinciples but except in court on oath, itis not prohibited by law. It is not prudentto have laws which are difficult to enforceor which are not likely to be followed byothers at all. It is bad to pass laws whichdont have the support of the majority.Such a law will not only cause lot ofsuffering in the process of enforcement

but will also shake public faith in theeffectiveness of the legal system.

Sometimes law may be at variancewith collective morality. In such cases thequestion may arise whether we have amoral obligation to obey such a law.However, law is necessary not merely formaintenance of order but, at least in part,

also for good life. It must be kept in mindthat law can and in some cases shouldenforce morality; it should do so withgreat care, otherwise morality becomesrigid and loses its dynamism. Moralitymust be dynamic. It must respond tochanges in society.


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EXERCISES

1. What do you understand by the term Law?2. Distinguish between Moral Law and State Law.3. What is the meaning of Positivists view of the theory of law?4. What are the various sources of Law?5. Distinguish between private and public law.


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9

Liberty

CHAPTER2

WHATISLIBERTY?

THE concept of liberty is complexwith strong emotional connotations.The te rm has acqui red di fferentmeaning at different times. Still there isa common thread through all its usages.

The most important sense in whichliberty is used is when a rational personis able to exercise his choice without

being subject to any external constraint.In this sense liberty is a necessary

condition for free and full developmentof our personality. Without it we cannotbe rational or act or achieve what seemsbest to us. To have liberty is to be ableto act according to ones wishes, totranslate ones dreams into reality andto actualise ones potential. It is theessence of humanity; and providessubstance to the notion ofresponsibility. It is the ideal to whichall of us aspire.

A man is free if he is not prohibited

by others. Liberty may also meanfreedom to do something or enjoyingones powers. When we are able to do

what we want to do, we are said to befree. It may mean immunity fromauthoritys exercise of arbitrary powers.It means freedom to act independently

without any fear of punishment. Thenthere is freedom under law. Citizenshave liberty insofar as what law permitsthem to do or not to do. There aremainly two senses in which the conceptis used: Negative and Positive.

NEGATIVELIBERTY

The negative view implies that we needliberty to protect ourselves from undueinterference of the state. It implies anarea in which man can do what he likesto do without being obstructed byothers. There are some obstructions,

which are natural. For instance, onecannot read because of blindness. Butthere are other areas where there is adeliberate attempt on the part of othersto interfere in the area in which onecould act. There is no agreement onhow wide the area could or should be.

There is, however, an agreement thatthis area cannot be unlimited otherwise

there will be a social chaos. The area offree action must be limited by law butthere should be a certain minimumarea of personal freedom which on noaccount should be violated. Such wasthe view ofLocke and Mill in Englandand Tocqueville in France. The


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fundamental sense of freedom, says SirIsaiah Berlin, is freedom from chains,from imprisonment, from enslavement

by others. The rest is extension of thissense.

Mill and others believed that unlesssuch an area is guaranteed toindividuals, civilisation cannotadvance. We shall never know the truth.

There will be no scope for originality orgenuine moral courage. Mill argued

that society will be crushed by theweight of collective mediocrity.

But this view of negative libertysuffers from following grave drawbacks:(i) Mills argument that without

liberty truth will not come out isnot empirically correct. Historyshows that love for truth growseven in communities where thereis strict discipline.

(ii) Liberty in this sense is concerned

with area of control and not withits source. It is not necessary tohave democracy to enjoy thisliberty. An autocrat may leave hissubjects with a wide variety ofliberty and yet be unjust orencourage inequalities. Thequestion who governs? is asimportant as the question How fardoes government interfere withme?

(iii) The job of the state is reduced to

the minimum. The state is anecessary evil.

Herbert Spencer summed-up thenegative view where he said The stateexists because crime exists in society,otherwise there would be no need of a

state. This is inconsistent with the viewof the state as a welfare institutiontrying to create condition in whicheveryone will be able to realise his orher potential. The negative view doesnot adequately take into account thefact that poverty or lack of land, capitaland political power are all graveobstacles to realisation of our powers.It does not see that these obstacles arean inevitable part of socio-economic

system, and have to be removed by lawfor attaining the common good.

POSITIVELIBERTY

The positive view of liberty implies twothings:

(i) It implies the right to participatein sovereign authority. It isinvolved in answer to the questionWho is the source of control orinterference?. It accepts the

individual self-direction as final.It means ability to live accordingto ones own conscious purposes,to act and decide oneself ratherthan be acted upon and decided

by others.

(ii) It implies freedom of rational self.Rousseau and other idealists

believed that man is rational andit is this which distinguisheshuman beings from othercreatures. They called this realself inasmuch as it identifiesourselves with the social whole of

which we are a part. Man can becontrolled for the fulfilment of hisreal self. Rousseau gave us theconcept of General Will which was


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11LIBERTY

an organisation and synthesis ofgoodwill of all of us. Rousseauthought that the General Willcould force us into obedience,

because liberty was nothing butcoercion by individuals own realself.

This view rightly recognises thattrue development of man consists in thedevelopment of his powers as an integralpart of a society. His ideas, aims andaspirations are social products, andthey, in turn, exercise their influenceupon the development of society. lt isargued that whenever man finds hissocial existence frustrating, he has aright to expect that the state wouldcome to his rescue. There must beinterference of the state to protect oneagainst the interference by otherindividuals.

This view brings into bold relief that

the negative view of liberty did notsufficiently appreciate the value ofmans capacity for rationalunderstanding, for moral judgementand action, and for aesthetic creationand contemplation. The positive viewis identical to Indian notion of Swaraj

which literally means complete masteryover oneself and demands that all formsof domination should be ended.

But this does not follow that everystate interference is designed to increase

liberty. The state power has often beenabused in the past to serve the interestof one individual or class or caste.

Indeed the danger with this view isthat any attack on freedom can be

justified in the name of real freedom.

The state, general will, a class or anation become super agencies. Theycome to be identified as real selves; andattack on freedom can then bemanipulated. The more we exalt thestate or the more we exalt those whospeak in the name of the state, the moreare the chances of these agents abusingtheir powers in their private interest. Itis because of lack of realisation of thisthat the doctrine has in the past beenperverted to deny the very freedom forhuman self-development.

Marxist thought rejects bothnegative and positive views; accordinglythere can be no freedom in a capitalistsystem. Workers collectively are forcedto sell their labour. Capitalism leads todomination of workers by capitalists.In order to be free, Marxists maintain,there must be a rational control ofproductive forces in society by the state.

Marxism rightly highlights that animpoverished or propertyless labourercannot be free. He has absolutely no

bargaining power. But the danger isthat there is a tendency in such asociety to be tyrannised by its owninstitution. Bureaucracies and theparty become extremely powerful andtend to disregard general interest.

Everyone agrees that freedom isvaluable and necessary but there is noagreed concept of freedom. Our

discussion however, suggests that thefollowing conditions must be fulfilled

before we can be called free:(i) Freedom must be enjoyed by all.

Freedom may, however, require asystem of planning, regulation


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and control. John Rawls arguesthat everyone should enjoy the

widest liberty consistent with theliberty of all. This he interprets tomean that we must do what wecan to ensure that even the leastadvantaged will enjoy freedom asa goal worth pursuing. This viewimplies something like a WelfareState.

(ii) Sufficient checks must beprovided in the form of rights, ruleof law and adherence toinstitutional arrangements ofsociety.

(iii) There must be some area left tothe individual in which the state

will not interfere without sufficientreasons.

TYPESOFLIBERTY

There are three types of libertypolitical, economic and natural ormoral. By political liberty we mean themaintenance of an atmosphere in whichthe state does not interfere in anindividuals life without sufficient andcompelling reasons. Thus, the libertyof speech and expression must not beinterfered with by the government,

because any interference with it mightmuffle public opinion which stands fortruth. Without such an assurance our

liberty is of no avail. Political liberty hastwo aspects it implies that societyshall not remain subservient to anyother society. It would have completeautonomy to manage its own affairs.Every society has its own peculiar anddistinctive character which must be

preserved by it; only then it is fit tocontribute its best to the ever-flowingstream of civilisation. A colonialcountry, or a country perpetuallydependent on others, or which is ruled

by others is like a dead body which hasno life and vitality. Every society has itsown peculiar ethos, which can bedeveloped only when it is not dependenton others and when it has completeliberty to manage its own affairs. When

Tilak declared, Swaraj is My BirthRight, he meant that so long as onecountry is in the clutches ofanother, itcannot develop according to its geniusor realise its ends.

Secondly, political liberty alsoimplies that the state or its agents shallnot use their powers to interfere orcontrol individual autonomy. It impliescreation of an atmosphere in whichindividuals will not live in fear ofpersecution for holding beliefs orexpressing views contrary to whatholders of power at a particular timehave. It also means rule of law asagainst the rule of human caprice.

The state should interfere only whenit is absolutely necessary and isdemanded by the happiness or interestof the society at large. Indiscriminateinterference, not warranted by theabove considerations, destroysindividuals freedom. It makes

individual a mere puppet or a lifelessmachine. Here we should bear in mindthat it is only when individuals aremade to feel that the state seeks tomake their lives better that they obey thestate. The moment this feelingdisappears, discontent, anarchy and


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sometimes even violent disturbancesovertake the state, a phenomenon whicheither destroys it beyond repair, orinfluences a new life and vigour into it.

Political liberty in its internalaspects is too often tied up with citizensparticipation in the affairs of state. Nodoubt this participation constitutes animportant segment of the full circle ofpolitical freedom. But there are othersegments too. For example, if in a

democracy the machinery of the stateis in the hands of self-seeking andcorrupt politicians or officials whomake use of it to further their ownselfish interests in wanton disregard ofgeneral welfare, there is, in effect, to noreal political freedom. Even if it exists,it is a farce. It is true that we must havea right to vote so that we can translateour consent into practice, but this right

would be meaningless in a society whereofficials tamper with ballot boxes, orpoliticians use all sorts of devices tomake democracy a farce. Anyone whois familiar with the history of Englandin the nineteenth century orIndia or Pakistan or some otherunder-developed countries today willrealise the urgency of having rulers andpoliticians who are imbued with a spiritof sacrifice, who have knowledgeenough to grasp the basic needs ofsociety, and who have sincerity enough

to pursue the public good ruthlessly.No state can survive for long, if it doesnot make an attempt to harmonise itsauthority with the general good ofsociety. If both are in harmony, societyflourishes and gives stimulation to thefiner aspects of life. But if both are at

loggerheads, sooner or later one or bothare destroyed. A Frankensteinsmonster will never produce a freepeople. It is only a state which regardsgeneral happiness as its ownhappiness, and works to realise suchhappiness in practice can be lasting.

Civil libertyis the most importantcomponent of political liberty. It isavailable to citizens in all democraticcountries. Our own constitution

guarantees it. It means the right of everyman to stand on trial on equal terms inthe courts of the land. No one has aspecial prerogative. There are nojagirdars or zamindarswho could claimspecial privileges. The most importantdefence of civil liberty is the writ of theHabeas Corpus. A person who has beendetained can apply for this is writ. It is,to quote Dicey, an order calling upon aperson by whom a prisoner is alleged to

be kept in confinement to bring suchprisoner to have his body, when thename habeas corpus, before the Courtto let the Court know on what groundsthe prisoner is confined and thus to givethe Court the opportunity of dealing withthe prisoner as the law may regulate.Every person is considered innocent

before he is proved guilty. Civil libertyrequires that a prisoner must be foundguilty of breaking some law, or else hemust be set free. In an authoritarian

system, a person can be taken prisonerin the middle of the night can be removedto a concentration camp, or kept underprotective custody. He has no remedyavailable to him against arbitraryexercise of power. In these systems it isthe executive and not the judiciary which


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decides whether the person can be setat liberty.

One important aspect of civil libertyis the freedom of speech and expression.It implies freedom to communicate onesthoughts to others. It implies freedom ofspeech, freedom to print and to speakin public. It also implies freedom ofconscience, and enjoins all of us topractice tolerance. We owe much offreedom of speech and expression to

ancient Athens. Our own law givers tooemphasised its importance. But in

Athens it reached its high watermark.Socrates became the first martyr for itssake. His life in a way exemplifies theparadox of freedom. He was condemnedto death because he preached beliefs andideas unpalatable to the government ofthe day. He told his judges, Dailydiscussion of the matters about which

you hear me conversing is the highestgood for man. He was of the opinionthat life in which there is no suchdiscussion is not worth living.

But Socrates was also aware of theresponsibilities of a person who enjoysfreedom of speech and expression. Itcannot be used for libellous or seditiouspurposes. If Socrates promised silenceand stopped perpetual discussion, the

jury was prepared to acquit him. ButI shall not change my ways, he said,though I die a thousands deaths. He

upheld the freedom of speech andexpression, but denied the right ofsedition. Speaking of mans debt to hiscountry, as he lay in prison, he toldCrito, that every person ought to respecthis country and submit to her and workfor her when she is in need.

Social libertyimplies freedom fromorthodoxy or narrow walls of fanaticismor any social compulsion to makepeople conformists. The majority hasa tendency to suppress the minorityand become tyrannical. In the past somany great human souls have beensent to the scaffold simply because theyheld beliefs which were contrary to the

beliefs of the majority of members insociety. Indeed the tyranny of majority

can be much worse than the tyranny ofone man; for the former, if it chooses,can penetrate into almost all the nooksand corners of the life of individual.

Therefore, it is the responsibility of thestate to remove obstacles in the way ofan individual pursuit of autonomy andfree articulation of his faculties withoutany fear.

Economic liberty provides anopportunity to get all the basic thingsof sustenance, without depending onthe will of somebody else. Economicliberty is the backbone of a free society,human being who is to dependconstantly on somebody else for the

wants of tomorrow cannot be expectedto adhere to any notion of civic virtue.He is likely to lose even the basicsediments of humanity. This applies asmuch to the state as to the individual.

A state which depends too much onforeign assistance, sooner or later, is

compelled to compromise its freedomfor the economic advantage it gets inreturn. The experience of the countriesof Latin America is the best example.Similarly, an individual who isconstantly haunted by the nightmareof hunger, disease and poverty cannot


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lead an autonomous life. He/shebecomes incapable of contributing hisbest to society. The phrase basic thingsof sustenance, however, does notinclude all the riches or the consumerarticles which our civilisation has thrownup in a great variety. It only meanssecuring of ones daily bread withouthaving to depend on others will. In thisconnection Laski says, let there besufficiency for all before there can be

superfluity for some. A human beingwho is constantly worried about breadfrom dawn to dusk; who is frustrated,ignorant, living an aimless existence,

who has to depend upon somebodyelses will for his sustenance cannotexercise his autonomy. For want ofeconomic liberty, sometimes, a personis obliged to sacrifice ones character, andeven ones political liberty.

Indeed, political liberty has nomeaning unless it is founded on the

basis of economic liberty. Such a notionof economic liberty also implies thateveryone in society, if one has thecapacity or will to work, will get enoughto enable one to participate in social andpolitical life without any hindrance.

Thus, a labourer, who can be dismissedby his employer without an impartialenquiry enjoys very little of economicfreedom. Indeed for a starving persondemocracy or its paraphernalia has

very little meaning. It has been arecurring phenomenon in humanhistory and more so in societies in

which poverty is writ large that personsdevoid of their means of subsistenceconvulse the societies with violentrevolutions.

Liberal thinkers put more emphasison social and political liberty. They havemustered up all the armoury at theircommand to prove that democracy is asuperior form of government than anyother known so far. They have soughtto build up a strong case for theminimum role of the state in the lives ofindividuals. It is argued that thingsshould be left to the individuals owninitiative because mostly the progress

of humanity has been due to this spiritof individual initiative and adventure.

JohnStuart Mill argued that even if anact was badly done by an individual, itshould be done by him as a part of hismoral education. But this line ofthinking ignores the vital fact that theremight arise circumstances beyond anindividuals control, which aredestructive of his very existence as amoral being. There are large number ofpeople in India who live below povertyline and in reality enjoy very limitedfreedom.

Liberty to vote or of religion andmorality has no meaning for them. Theyeven suspect that the state itself has

become an instrument of theeconomically well-off classes forexploiting them. Indeed, to talk of theright to vote or to talk of religion inrelation to a starving man has nomeaning. A nation of paupers, sooner

or later, meets its nemesis. Either thepoverty-stricken class meeklyreconciles itself to its status under the

vain belief of past Karma (action ofprevious birth) or it is driven to resortto various kinds of resistance whichoffer it any glimmer of hope, and


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sometimes even to violent revolution. Insuch societies the power of money may

become the most important power.Votes are sold and purchased duringan election. A starving man may findfive chunks of gold, ill-gotten or well-gotten; and for him his duty to vote forthe right person is much less importantthan to quench his thirst and hunger.

Let us not forget that even RanaPratap at one weak moment of life,

finding his son weeping for a loaf ofbread, decided to accept theoverlordship of Akbar, the Emperor ofIndia. If this weak moment could comein the life of Rana Pratap, how can weexpect ordinary people to safeguardtheir own liberty in the face of adversecircumstances.

Moral liberty, as Kant perceived,implies personal autonomy so that weare complete masters of ourselves.Moral freedom consists in the pursuitof the universal objects, i.e. of objects

which impart character and solidarityto society. It can be attained onlythrough a process of self-sacrifice andself-purification inherent in what the

Ancient Indians called the saatvikwayof life. The strength of a state, in the finalanalysis, depends not upon its wealthor armaments or even its numbers butupon the spirit of sacrifice for thecommon good or general welfare, which

its citizens have.However, moral liberty is not thefreedom of the ascetics far removed fromthe din and the noise of the world. Forthe world around is a reality andperhaps the supreme reality. If there issomething beyond it, we do not know.

Moral freedom, therefore, lies inharmony of impulses in ones privatelife. It can be attained through thepursuit of creative things or saatvikthings. In social life it consists inidentifying oneself with society throughlove, sacrifice, friendship andsympathy. The first is through virtueand the other through friendship. Moralfreedom in this sense, however, is

beyond the scope of the state. The state

can provide all the necessary conditionsfor the pursuit of moral life but cannotmake a human being who has neitherthe capacity nor the desire to be, moral.

And therefore, as far as the state isconcerned, it has only to create thatatmosphere in which people have anopportunity to develop and exercises allthe virtues underlined above. Politicaland economic liberty are meaninglessunless they provide scope for therealisation of the ends of moral liberty.Conversely, the idea of moral liberty ishard to attain in a society where thereis either complete, mechanicalregimentation or the society is full ofpoverty and squalor or where there isan undue craze for wealth.

LAWANDLIBERTY

Law lays down what a citizen is free todo and is not free to do. Since the state

controls coercive power, its law is ableto secure freedom to all by preventingcoercion by an individual or group.Liberty does not mean absolutefreedom to do whatever one wants. Weoften inflate our demands. Anabsolutely free society is impossibility.


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17LIBERTY

Such a situation will lead to anarchy inwhich no one except the powerful willbe able to exercise his freedom. We canbe absolutely free in a vacuum in whichthere are no other individuals. This isso because the moment there are otherindividuals we shall begin to coerceeach other for the fulfilment of ourdemands and wishes. Therefore, lawand liberty are closely connected. Lawmay be a necessary evil and we may

aim at minimum of law, but it is aninescapable condition necessary tosecure freedom of all.

Some restrictions become necessaryto enhance our liberty. Sometimes lawrestrains it in the name of publicinterest. The law of copyright, forexample, restrains mans freedom ofspeech and expression because if there

were no such law, we would preventauthors from reaping the fruits of theirlabour. Similarly, restriction of freedomto secure equal treatment of all is onesuch example. We insist that same price

be charged to anyone for buying thesame articles. We do not encouragepeople to open schools if theydiscriminate in the name of caste,religion, language or community.

But, as has been pointed out earlier,not every law is conducive to liberty. Lawhas often been abused. Not all laws arereasonable and just. Sometimes the

authorities may promulgate a law ingood faith but the decision they havemade may be wrong or there may beno access to courts for justice so thatthere is no procedure for dealing withdisputes except the will of the executive.Sometimes even the adjudication of the

courts may be arbitrary. People can bepunished for the crimes they have beenalleged to have committed withoutproper investigation. That is whyfreedom from arbitrary exercise ofauthority has been claimed from the

beginning or the government mighthave usurped power by insurrection orcoup detat or there may have beenforeign power ruling over us. If the ruleris arbitrary or unlawful, it will be

difficult for anyone to disobey. Unlessthere are limitations, we lose ourcapacity to resist unlawful or arbitraryor immoral authority. We may becompelled to do a certain thing just forthe fear of punishment like threat ofdeath, torture or even of losing our job.

It is for this reason that checks andbalances are created within the legalsystem. Rights are secured andimmunities are granted so that citizenscan know that there is nothing to fearfrom government. We insist on rule oflaw and independence of judiciary.Rights prescribe the limits beyond

which the rulers cannot go. They definefreedom of citizens vis-a-vis thegovernment and are the most classicexpression of freedom. They providesecurity against the exercise of arbitrarypowers. We cannot freely participate incivic life unless we are free fromcoercion. It is for this reason also that

we insist that the process by which lawis administered should be proper.Freedom from coercion except by dueprocess of law becomes the firstcondition of our being free in the largersense of the term. The due processshould be recognisable so that everyone


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EXERCISES

1. Explain the concepts of Liberty.2. Distinguish between Negative Liberty and Positive Liberty.3. What is Political, Economic and Moral Liberty?4. Discuss the relationship between Law and Liberty?5. What do you understand by the freedom of speech and expression?

knows not only the decision but alsoas to how it is reached. This createsconfidence in the minds of citizens. Thecitizens will know that the authoritiescannot get them unless they have donea wrong in terms of a specific law. I may

be in the bad book of the police, but Ican be sure that I will not be punishedunless I have violated a definite law.

Citizens are not only free, but theymust know that they are free. These

substantial as well as proceduralsafeguards protect people against theabuse of law. It is a need that has beenfelt more in recent times with themassive expansion of governmentactivities in all spheres of life.

In the ultimate cases when thesystem is abused, people claim right torebellion and duty of resistance in order

to protect their own liberty. The FrenchRevolution was one such case. Legalpositivists may be right in normal cases

when they declare a law valid on theground that it is enforceable. But inabnormal situations we are remindedof St. Augustine that states without

justice are but rubber bands enlarged.Nazi system in Germany was effective

but insane. The British rule in India waseffective but exploitative. In such

situations we may be obliged to obeyin the sense that if we do not, we shall

be shot dead; but there is nomoralcompulsion to obey. As Rousseaupointed out, we are obliged to obey onlylegitimate powers, which confirm to thecommunitys sense of what is right andlawful. And every law must conform tothis requirement of legitimacy.


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19

Equality

CHAPTER3

WHATISEQUALITY?

SOME people have viewed equalityas the principle of absolute andunconditional equality. They emphasisethat all men are similar in certain basicfeatures and traits and, therefore, theyought to be treated as equal. Some haveemphasised that all men are createdequal. Some religious traditions as wellas thinkers argued that since all arechildren of God, they are equal. Early

liberal thinkers argued that all men areequal because they share commonnatural rights. Utilitarians like Benthamargued that all share common capacityto experience pleasure or pain. Kantthought that all men are equal becausethey have the same capacity to be moraland formulate moral laws. For socialistsmen share a common humanity; theyhave the same physical characteristicsand social needs. All these viewshighlight that all men share certain

basic characteristics and needs. OurConstitution rejects any discriminationon the basis of caste, class, creed, sexor race.

This argument implies that sincehuman beings are equal they ought to

be treated equally. But this is

impossible to achieve because they arefound in different social settings. Forinstance, the character or the positionof the family is bound to exerciseinfluence upon the character of thechild. So long as the family systemexists, and there is no reason why itshould not, it is impossible to createperfect equality.

It is for this reason that differencesare justified in terms of relevant andsufficient reasons. Aristotle

distinguished equal cases on the basisof virtue. Some are good atmathematics others at flute-playing.

The first deserve training inmathematics and the latter deservegood flutes. Caste system was justifiedon the basis of different functionalcapacities of different individuals. Somecontemporary egalitarians do so on the

basis of need. All people should receivethe same treatment. Anything else isirrational.

The argument of needs or virtue ormerit is often linked to equality ofopportunity. A child may have talent

but the poverty of his parents mayprevent him from developing it. That is

why both nature and nurture areimportant. Plato conceived of a society


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in which equally meritorious childrenare provided equal chance. Adequateopportunities mean that all shall haveconditions necessary for thedevelopment of their personality. Itimplies that a daughter of a poor man,if she has some special nature or talent,

will not be hampered by either thestatus of her parents or for want ofmoney. It recognises the value offreedom and autonomy of the freedom

to pursue ones own life plan. But wemust have opportunities to pursue it.

Early liberals postulated absoluteright to property. But it has beencriticised on the ground that it does nottake into account the need to distributethe resources of society. Without suchdistribution the weaker sections cannotmaximise their freedom. We haverealised, for instance, that protectivediscrimination in favour of thescheduled castes is necessary to makethem equal and free.

Liberals have emphasised politicalequality. All should participate in thepolitical process as equals. For thissome argue in favour of directdemocracy. Others think that since itis not possible in the modern states,

which are large in size, we should go infor more and more decentralisation ofpolitical power.

Marxists and Socialists, emphasise

economic equality. A few propertiedpeople should not decide the fate of all.They cr it ici se various kinds ofinequalities in society because all theseinequalities lead to concentration ofpower in a few hands. Some socialistsplead for nationalisation of all wealth,

others think that it increases the holdof bureaucracy. This bureaucracytakes the place of the property owners.Socialists, therefore, plead fordecentralisation of economic along withpolitical power.

In a truly egalitarian society all haveequal opportunities to satisfy their needsand realise their potential unaffected bypolitical control, social discriminationand economic deprivation.

LIBERTYANDEQUALITY

As one can see, the general concept ofliberty is inseparably tied to theconcept of equality. Liberty is thecondition of equality and vice-versa.

We can be free when we areautonomous and self-determining and

we can be so only when we are equal.And yet people like Lord Acton believedthem to be incompatible. In his lectureson liberty he declared that in the courseof the French Revolution the passionfor equality made vain the hope offreedom. But such a concept as thatof Acton is based on misunderstanding.Liberty does not mean mere absence ofrestraint. It is a more positive thing. Itmeans to be autonomous and self-determining. It implies that whateverautonomy I have will not prevent othersfrom equal autonomy. It implies that

we are all equally entitled to realise ourcapacities. Equality is the condition inwhich this takes place to the maximum.When we say that men have a right toliberty, we imply equal liberty or equalclaims. It is for this reason that equalityis often identified with justice. The


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21EQUALITY

amount of liberty that one has isonly as much as is compatible withequal amount for others. Let ustry to delineate the relationship

between liberty and equality in a fewspecific areas:

(i) Political equality is bestguaranteed in a democracy in

which, as Bentham has pointedout, each citizen is to count forone. There have been cases whendemocracies led to dictatorships.

That is why Tocquivelle thoughtthat combination of democracyand aristocracy was the bestguarantee of freedom. But, on the

whole, the experience tells us thatdemocracy guarantees liberty andequality more than any other formof government.

(ii) Civil equalityor equality beforelaw is the basic pre-condition of

freedom. It means that law will notdepend on whims or caprice orpartiality of those who rule. Lawshould equally guarantee securityof person and property becauseit is only then that we canhave conditions necessary forenjoyment of our autonomy orrealisation of our excellence.

(iii) Economic equality is alsonecessary. All laws and taxes

diminish ones liberty. Butsometimes they do so to increasethe general liberty. A socialisticlegislation which tries to checkinequalities in society far from

being a violation of liberty, is itsnecessary condition. It aims at

more and more equality byreducing the power of thelandlord or the capitalist to exploitthe peasant or the workerrespectively.

Consider a simple case ofmonopoly. If the total electric supply

were controlled by one person, allothers will not be able to exercise theirfreedom. The person, who controlselectricity, will be able to extract

whatever price is demanded. One couldat the most commit theft. But if theownership of electricity were equalised,the only loser of liberty would be theoriginal monopolist. But the personsloss would be insignificant comparedto the advantage of others. All laws,

which favour equality in proportion toneeds or capacity, therefore, do notconflict with liberty.

What then is the re lationshipbetween political equality, civil or legalequality and economic equality. Onesright to participate in civic affairs isuseless without freedom of speech andexpression. Political freedom ismeaningless without economic equality.Economic power gives influence, powerand patronage may be used to destroypolitical freedom of others. Even legalequality is threatened in the absence ofeconomic equality. The poor cannotengage a good lawyer or is not in a

position to fight a protracted legal battlewhich may take years to decide.Equality is thus necessary to securegreater freedom to greater numbers.

Not all agree about the importanceof equality. Some critics point out thatthe price to be paid for creation of


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EXERCISES

1. What do you understand by the term Equality?2. Liberty is the condition of equality and vice-versa. Explain.3. What do you understand by Equality before law?4. Distinguish between Political Equality and Social Equality.

equality of opportunity is enormous.Our attempt to distribute income maylead to lower incentives. This willadversely affect efficiency in production.It may adversely affect family autonomy

because it wi ll lead to increasedcompetition in the society. The ideal ofequality may sometimes conflict withother social values. We might preventpeople by using their own talents ortheir own chosen life plans. Equality as

defined by socialists may create theproblem of bureaucracy whichincreases the gulf between labour andthe state. Most contemporaryequalitarians, however, defend somesort of a mixture of democratic andsocialist equality. They argue fordecentralisation of political power along

with economic power as a necessarycondition for the creation of anegalitarian society.


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23

Justice

CHAPTER

4

WHATISJUSTICE?

THE word justice is derived fromthe Latin wordjungere(to bind, totie together) andjus (a bond or tie). Asa joining idea, justice combines peopletogether in a right or fair order ofrelationships by distributing to eachperson his or her due share of rightsand duties, rewards and punishments.

Justice does this by bringing aboutadjustment between people and

between the principles of liberty,equality and co-operation.

Traditionally, the principle of justicewas taken to be a principle whichbalances or reconciles the principlesof liberty, equality, etc. Such a

balancing or reconciling is done withreference to some ultimate value, e.g.the value of the greatest happiness ofthe greatest number or the value offreedom and equality of all the membersof a society. In this context, it may be

noted that it is the balancing orreconciling nature of justice, which isrepresented in the figure of personified

justice. The figure holds a balance inher hands; it is blindfolded to conveythe idea of the formal equality of thesubjects of law, i.e. an equality which

disregards differences of gender,religion, race, caste, wealth, etc.

We tend to judge a state on the basisof the ends it seeks to serve. It is believedthat the laws of the state should secure

justice to its citizens. But justice is noteasy to explain. It is a complex concept.It is sometimes used as a legal conceptand sometimes as a moral one. It may

be regarded to flow from laws of thestate. It may also be regarded as aconcept which aims at the good of the

whole society. From such notion ofjustice we can identify three importantdichotomies in the concept of justice:(i) Legal and moral justice; (ii) Generalorder and individual interest;(iii) Conservative and social justice.

(i) Legal justice deals with principlesand procedures as laid down bythe system of law prevailing in astate. The entire system is called

justice. Sometimes a distinction is

made between natural justice andlegal justice. The natural justicedeals with basic principles

whereas legal justice deals withlaws, customs, precedentsenacted or made by humanagencies. Moral justice, on the


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other hand, deals with what isright and what is wrong, what areour rights and what are our dutiesas human beings, etc. Legal

justice most of the time merelyprotects and enforces these rightsand duties.

It does not mean that everything thathappens in a court of law is justice. Itmay be legally right but can be criticisedfrom moral angle as injustice. If aparticular law fails to meet therequirement of moral ideal of justice itcan be called injustice. Similarly, asystem of administration can be calledunjust, if it fails to meet the requirementof justice as fairness.

(ii) Justice on the one hand, is for thegeneral order of society as a

whole, and on the other it protectsthe individual. Criminal law is the

best example. Its purpose is not

merely to punish the criminal butalso to protect the fabric of society.

The individuals settle their claimsagainst one another in terms ofpunishment or compensation forthe crime. But in the process, it is

backed by the general desire ofsociety to be protected fromharmful conduct.

This does not mean that social goodalways takes precedence over theindividual good. The system of justice

is supposed to stand for the rights ofthe individual. That the innocent shouldnot be punished is the basic principleof all civilised systems of justice.However, there may be exceptionalsituations like war when the state mayforce an individual to conform to its own

notion of justice. The case of preventivedetention without trial is an example ofthis. Justice, therefore, isconcernedabout the relationship between theindividuals and also relationship

between the individuals and thegroups.

(iii) Some people believe that justiceimplies establishment of statusquo. It seeks to protect freedom,person and property of theindividual. This is calledconservative justice. There isanother concept of justice whichis called social justice. It seeks toreform society in accordance withcurrent idea of what is right or fair.In our own times it seeks to bringabout changes in landdistribution and property right. Italso seeks to preventdiscrimination on grounds of race,

sex, caste or creed so that there isequitable distribution of nationalresources and wealth. All courtstend to shift their emphasis fromtime to time in order to suit therequirements of the people. Ourown Supreme Court has beentaking a very conservative positionin property cases and veryreformative attitude in defence ofcivil rights.

However, in all cases the idea of

justice is equated with equity andfairness. Originally both these termsimplied equality. Indeed, the notion ofequality is in some sense central to anynotion of justice. Our own constitutionaccepts equality before law as one of thefundamentals of the system of justice.


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25JUSTICE

In the history of ideas, there are twomajor concepts of justice:

(i) Numerical Concept of Justice

(ii) Geometrical Concept of Justice

(i) Numerical Concept of Justice

It gives equal share to all. JeremyBentham said, Everyone is to count forone, nobody for more than one. Itmeans even unequal would be treated

as equal. The Greek city states took therule so far that many offices were filled

by lot. The holding of an office did notcall for any special knowledge orqualification. Modern liberaldemocracies are also based on thisprinciple.

(ii) Geometrical Concept ofJustice

Plato and Aristotle favoured this

concept of justice. It is a concept ofproportionate equality. It meansequal share to equals and unequal tounequals. It also means thatdistribution of power and patronageshould be proportionate to the worthor contribution of the individual. As

Aristotle put it, if flutes are to bedistributed, they should be distributedonly among those who have thecapacity for flute-playing. Similarly,only those people should rule who are

capable of ruling. In this concept ofjustice, benefits and responsibilities areequated with the worth of recipient.Numerical Justice is sometimes calleddemocratic justice and geometrical

justice is equated with aristocraticjustice.

In Platos Republic too justice isrelated to the social order. His idea of

justice in the soul is analogous tojustice in the state. In the individual itconsists in keeping balance betweendifferent elements. It consists in givingdue satisfaction to different elementssuch as appetite (labour class), courage(warrior class) and reason (ruling class).

Justice in the state, according to Plato,consists in harmonious order betweendifferent social classes. When each classminds its own business and does the

job for which it is naturally fitted anddoes not interfere with the job of others,there is justice in the state. The ancientIndian concept of Dharma also hadsimilar implications insofar as itidentified justice with harmony of socialrelations in terms of the principle of mystation and its duties. Rights orprivileges of different individuals flowed

from this principle of Swadharma.Most people, however, agree thatjustice as equity or fairness does notmean strict equality. It is largely amatter of proportionate distribution interms of morally justifiable differences.

The state can discriminate on the basisof some classification. This classificationcan be in terms of sex or need or meritor ability. Justice in this sense isequality of circumstances. It means totreat like cases alike and unlike cases

differently.Our Constitution has accepted

equality before law as the basicgoverning principle. But this does notmean that the judge should treat allalike. He will have to make a distinction

between the innocent and guilty, sheep


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and wolf. The judge has a right to makedifferences. The principle of fairnessrequires two things.

(a) The judge should not be arespecter of privileges. He shouldnot favour someone becauseone is rich and powerful andpunish someone merely becauseone is poor.

(b) The judge should discriminateonly in terms of relevantdifferences. For example, in acriminal court the relevantdifferences will be ones guilto r innocence . S imi l ar l y, f o r appointment to teaching positionthe relevant difference would beones capacity to teach.

Al l discrimination is not bad.Sometimes law has to discriminate infavour of some people to ensure largergood of society. Rawls would think that

it is justice if the laws work in favour ofleast advantaged. Most socialists andMarxists would identify justice witheradication of exploitation of the weakor the working class. Some identify it

with equality of opportunity. Othersconsider satisfaction of basic needs as

basic to any concept of justice. Therecannot be universal agreement aboutthe areas where discrimination is just.But if the state is doing something forthe least advantaged or weaker section

of the society, it is obvious that it isworking for the betterment of thepeople. This is known as protectivediscrimination.

It implies discrimination in favourof the weaker and the backwardsections of society. It also implies giving

preferential treatment to the weakersection of the society. For example, inour society there has been a widespreadpractice of discriminating against thescheduled castes. The state is nowentitled to discriminate in their favour.

Without this kind of discriminationthese people will not be able to lead ahuman life. Whatever the state does tosecure them their rights is justice andit is covered by the words equity and

fairness. The blacks in South Africawere discriminated against. The statesystem there was unjust because itspractices were morally unjustifiable.

There was no equality of any kind. Thestrong discriminated against the weak.

The system thus worked in favour ofthe most advantaged section in society.

The apartheid as it was practiced inSouth Africa is morally an offence,

because it considers the powerful assuperior to the less powerful on accountof the racial lineage. In India the castesystem, is bad not because it separatesdifferent groups but because itpostulates a hierarchy in which somegroups are considered superior toothers on account of heredity.

The ob ject of protectivediscrimination, however, is not to givespecial advantages to a particularsection but to raise them to a level wherethey can take advantage of the principle

of equality of opportunity and competewith other sections of society on equalfooting.

The state, therefore, tries to removeimbalances in social, political andeconomic life. It provides employment,maternity benefits, insurance against


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27JUSTICE

sickness and old age security. It triesto fulfil basic needs as also to eliminateunjust inequalities. As perLaissez fairethe business of the state was only tohold the ring for the competition in thesociety. Everyone was left to oneself. Ifthe weak perished it did not matter. But,the welfare state implies that everyonehas a right to fulfilment of ones basicneeds. Fulfilment of these basic needsis a matter of justice.

The Communist view of justice goesa step further. Marx declared from eachaccording to his ability, to eachaccording to his needs. It means thatthe burden should be distributedaccording to our capacity while benefits

be distributed according to our needs.Merit does not come into the picture.

The basic presumption is that all of uswi ll spontaneously work for thecommon good and we shall be contentto receive whatever the society gives usin lieu of that work. It expects all tocontribute consciously to commongood and not for any private good and

be satisfied with the rewards given bythe society. As we have seen earlier, thereare problems with such a view. Thereis some selfishness in all of us and this

view does not take that into account.The welfare idea of distributive

justice has been put forward by acombination of the socialists and the

liberals. It accepts that fulfilment ofbasic needs of all is necessary. But oncethese needs are fulfilled, the individualsshould be free to compete for greater

benefits. People will differ about whatcould constitute the basic needs. Their

views will vary from country to country

and person to person. A refrigerator inAmerica is a basic need while in Indiait may be considered a luxury whenmillions live in dire poverty. But

whatever the difference, there is aconsensus that there should be afulfilment of basic needs of all before wecan allow fulfilment of superfluousneeds of some. In our country peoplecan obtain free medical aid ingovernment hospitals. But if they want

greater personal care and morefacilities, they are expected to pay forit. The view is that protection againstdisease is basic but not the extracomforts of a private nursing home.

It is in this sense that social justicebecomes important. Plato and Aristotlewere perhaps right when they talked ofdistribution in terms of needs, abilityand capacities. There are differentspheres of justice. Each sphere has itsown logic. Justice which is applicableto the realm of friendship is differentfrom justice in the realm of state. Wechoose a friend according to our ownliking. We are sometimes partial tothem. There is nothing wrong in that.

This is all the friendship is about. Butwe cannot be partial in the sphere ofstate. Duty to act impartially is built intothe notion of equality before law.

SOCIALJUSTICEININDIA

At the time of Independence in 1947,India was one of the poorest countriesin the world. It was largely a result ofeconomic stagnation under the British.But another reason was the growth ofmany patterns of inequalities based on


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caste, class and religion. That is why weaccepted the goal of social justice fromthe beginning. The Preamble of theIndian Constitution proclaims that theDemocratic Republic of India standscommitted to securing to all its citizensJustice, social, economic and political.

The state has provided for freeand compulsory education tochildren. Since independence variousprogrammes have been launched whichaimed at tackling the problem ofpoverty. For instance, the MaharashtraGovernment had passed a legislationguaranteeing employment at aminimum rural wage there. The

Antyodaya scheme aims at theupliftment of the poorest by helpingthem to acquire income earning assets.

Various programmes like FarmerDevelopment Agency Programmes havehelped small farmers with holdings of

less than two hectares by giving themspecial loans. The Five Year Plans haveevolved programmes of fulfilment ofminimum needs particularly for

backward areas as well as backwardpeople. The state has also taken

various steps to improve health andsanitation, housing and education. Thestate has tried to provide living wage,good conditions of work and reasonablestandards of living to all workers. Inaddition, some land reforms have been

implemented and efforts have beenmade to contain growth of monopolies.

Special steps have been taken toimprove the economic condition andsocial status of the scheduled castesand scheduled tribes. Reservationshave been made in the services. Thestate has positively discriminated intheir favour by giving thempreferential treatment in schools,colleges and employment. Posts have

been reserved in favour of backwardclasses also. The state has also made

special provisions for the upliftmentof the backward classes by reserving27 per cent of government jobsas recommended by MandalCommission. Awareness GenerationProgramme (AGP) undertaken by thegovernment aims at improving theconditions of women by creatingsocial awareness.

Inspite of all this India stillremains one of the poorest countriesin the world. Disparities between therich and the poor or in terms of caste,class, wealth and power are glaring.

The legal process too is costly. Ourbudget on welfare programmes is alsonot adequate enough. In order tosecure effective social justice, we shallhave to work for speedy economicgrowth so that there are no financialconstraints. We shall also have tomake a concerted effort to reducedisparities by proper distribution of

wealth and removal of inequalities ofall kinds.


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29

EXERCISES

1. Explain the term Justice.2. Distinguish between legal and moral justice.3. Describe the two major concepts of justice in the context of history of ideas.4. What is protective discrimination? Explain.5. What measures have been taken in India to secure social justice to its

citizens?

JUSTICE


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Human Rights

CHAPTER5

RIGHTS are essential conditions for good life. They help in the allround development of people and theirpersonality. According to Harold LaskiRights are those conditions of sociallife without which no man can be his

best self. All societies and cultureshave in the past developed someconception of rights and principles thatshould be respected. Some of theserights and principles are considereduniversal in nature. The struggle for the

recognition of such rights and thestruggle against political, economic,social and cultural oppression, againstinjustice and inequalities, have been anintegral part of the history of all humansocieties. The concept of rights whichevery human being is entitled to enjoy

by virtue of being a member of thehuman species have evolved throughhistory in the course of these struggles.

The origin of the concept of humanrights can be traced to the period of the

Renaissance and afterwards to periodof the Enlightenment. Humanism(about which you will read in detail inthe latter part of this book) was thekeynote of these periods. Humanismextolled man, stressed his essential

worth and dignity, expressed deep faith

in his limitless creative potential andproclaimed freedom of the individualand inalienable rights of the individual.

The two most important declarations,which inspired revolutionarymovements the world over, were the

American Declaration of Independence(1777) and the French Declaration ofthe Rights of Man and Citizen (1789).

The main concern of these movementswas the ending of despotic rules,establishment of democratic politics

and the protection of liberties of theindividual. A new element to theevolving concept of human rights wasadded by the socialist movement, whichemerged in the nineteenth century. Itstressed on abolition of class rule andthe establishment of social andeconomic equality.

The contemporary concept ofhuman rights and its universal natureand recognition is thus based on therich heritage of the past, and should be

seen in the specific historical context ofthe twentieth century. The history ofalmost the half of the 20th century ischaracterized by the prevalence ofcolonial rule in a large part of the

wor ld . The rise of author itariangovernments in many countries and the


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31HUMAN RIGHTS

establishment of fascist, barbarous andaggressive regimes in some of thecountries could be seen in this era.Besides, the rise of national liberationmovements in the colonies andmovements of democracy and socialprogress in various countries provideda framework for the popularisation ofthe theory of Human Rights in theentire world.

This period was also a witness tothe most devastating wars in humanhistory. It was during the closing yearsof the Second World War that theconceptualisation and articulation ofhuman rights in its proper perspectivetook place. The most significant featureof the new conceptualisation was itsuniversality. It was reflected in variousdeclaration of the aims proclaimed bycountries allied against fascism andmilitarism. It would be appropriate if

we endeavour to know the meaning ofthe concept human rights.

MEANINGOFHUMANRIGHTS

Like various other concepts of PoliticalScience the term Human Rights has

been de fined and understood indifferent ways. But in general and in theultimate analysis, human rights revolveprimarily around the basic theme ofsurvival and well-being of human

beings and respect for human dignityand humanity. Human rights are thoseminimal rights, which every individualmust enjoy by virtue of being a memberof the human society irrespective of anyother consideration. Conceptually,the term Human Rights has two

meanings. First, human rights are thoseinherent and inalienable rights, whichare due to a person simply because of

being human. These are moral rightswhich are derived from humanness ofevery human being and they aim atensuring their dignity. Second, humanrights are those rights that pertain tolegal rights. Legal rights are establishedaccording to the law making processesof societies, both national andinternational. In the modern worldscenario both the moral and the legalaspects of rights relating to life, liberty,equality and dignity of the individualrepresent the core of Human Rights.

Human Rights, common to allwithout discrimination, has foundpropagation in almost all societies. Theprinciple of equality of the human racecan be found in virtually every culture,civilisation, religion and philosophical

tradition. Yet, there has always beensome justification offered by states andsocieties for violation of human dignityand discrimination between the rightsof the people on various grounds. Theconflict between the concept of havingrights from nature, and the statedenying it led to the theory of legalrights. This means rights, to be secure,must be recognised by the state andguaranteed preferably through theConstitution. It is a matter of concern,

that despite legal rights, variousregimes have continued suppressingand coercing their citizens, by denyingthem the proclaimed equality anddignified human life. As such, there had

been a growing belief that governmentsalone cannot be trusted to safeguard


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the rights of people. It was felt that theserights require both national andinternational guarantee. The majorpressure for the internationalisation ofhuman rights gained momentum afterthe Second World War. During andpreceding the War, totalitarian regimesgrossly violated human rights in theirown territories as well as in theiroccupied territories. These totalitarianregimes were also responsible for the

elimination of entire groups of peoplebecause of their race, religion ornationality. The experience of the Warresulted in a widespread conviction thateffective international protection ofhuman rights was an urgent need of thetime to secure international peace andprogress. This conviction wassubsequently reflected in and reinforced

by the Charter of the United Nations.

THEUNIVERSALDECLARATIONOFHUMANRIGHTS

The United Nations Charter reaffirmsfaith in fundamental human rights, inthe dignity and worth of human beings,in the equal rights of men and womenand of nations large and small. TheCharter makes repeated references tohuman rights and fundamentalfreedoms. Article 1 of the Charter statesthat one of the aims of the United

Nations is to achieve international co-operation in promoting andencouraging respect for human rightsand fundamental freedoms for all

without any distinction relating to race,sex, language or religion.

To define the contents of Human Rights,the UN in 1945 itself, created a UnitedNational Commission on HumanRights. Its main task was to draw anInternational Bill of Human Rights,defining the rights and freedomsreferred to in the Charter. TheCommission came out with a UniversalDeclaration of Human Rights. On 10December 1948 the General Assemblyof the United Nations unanimously

adopted the Universal Declaration ofHuman Rights as a common standardof achievement for all peoples and allnations. It is because of this adoptionthat 10 December is celebrated asHuman Rights Day. Article 1 of theUniversal Declaration lays down thephilosophy of Human Rights. It states,All human beings are born free andequal in dignity and rights. They areendowed with reason and conscienceand should act towards one another ina spirit of brotherhood. The article thusdefines the basic assumption as:

(1) That the right to liberty andequality is mans birthright andcannot be alienated; and

(2) That because man is a rationaland moral being, is different fromother creatures on earth and,therefore, entitled to certain rightsand freedoms which othercreatures do not enjoy.

The Universal Declaration of HumanRights comprising a Preamble and 30

Articles defines certain rights whichshould be available to all without anydistinction of race, religion, nation,gender, and colour.


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These Human Rights may beclassified into three categories. The firstgeneration rightsare those that areconcerned mainly with the civil andpolitical rights of the individual. Theyinclude the rights to life, liberty,security of person, freedom from tortureand slavery, and political participation.Besides, the right to property, marriageand the fundamental freedomsof opinion, expression, thought,conscience and religion, freedom ofassociation and assembly do also forma part and parcel of the basic rights ofthe first generation. The secondgeneration rightsare rights which can

be termed as security-oriented rights;these rights provide social, economicand cultural security. These rights-social, economic and cultural are morepositive in nature in that they make itthe duty of the state to ensure that these

rights are realised. The UniversalDeclaration of Human Rights reflectsthe consensus on the principles whichform the basis of the first and secondgeneration rights.

The third generation of humanrightsare of relatively recent origin.

They have evolved in response tovarious new concerns over whichinternational consensus has emergedin recent years. These includeenvironmental, cultural and

developmental rights. They areconcerned with rights of groups andpeoples rather than of individuals andinclude such rights as the right to self-determination and the right todevelopment. The developing countries

have played a leading role in bringingabout international consensus onthese rights.

Since the adoption of the UniversalDeclaration, there have been manycontroversies regarding the question

which rights are more important andwhich are less. The representatives ofsome states had been asserting that civiland political rights are more importantthan economic, social and culturalrights. They also had seriousreservations about acknowledging theright to development which, if effectivelyimplemented, would affect the existingpattern of economic and political powerin the world. Other countries stressedthe importance of economic, social andcultural rights and the right todevelopment. These controversies, inprinciple, can be said to have beenresolved when all human rights were

recognised to be indivisible. TheVienna Declaration, issued after aconference in which representatives of171 countries and hundreds ofnon- governmental organisationsparticipated, unambiguously affirmedthat All human rights are universal,indivisible, interdependent and

interrelated.It has also been affirmedthat democracy is the sole guarantor ofindividual rights civil, political,economic, social and cultural and

collective rights within states and withinthe community of states.

The Universal Declaration, togetherwith the Charter, served as aninspiration and means for the millionsof people, particularly the oppressed


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and under the colonial rule. TheDeclaration, however, was not a legally

binding document. To give legalsanction to human rights the General

Assembly on 16 December 1966adopted two Covenants: theInternational Covenant on Economic,Social and Cultural Rights, and theInternational Covenant on Civil andPolitical Rights. The Covenants arelegally binding treaties. Any state mayor may not become party to these. Uponagreeing to become parties to theCovenants, states accept procedures forthe implementation of articles, includingthe submission of reports on theircompliance, in accordance with theprovisions of the Covenants. Apart fromUniversal Declaration on Human Rightsand two Covenants there are also a largenumber of other declarations,recommendations and conventions

adopted by the General Assembly. Ashas already been mentioned,declarations and recommendationsusually apply to all the members of theUnited Nations but do not have the samelegal force as the conventions, which are

binding upon the states that havebecome parties to them.

Importance of Declaration, however,is that it states a commonunderstanding of all members of thehuman family and constitutes an

obligation for the members of theinternational community, This alsoplaces human rights in a system ofinternational cooperation. This impliesthat national borders put no limit tohuman rights; that by their very nature,human rights represent trans-

boundary values. Also internationalcooperation entails an obligation on thepart of states to fulfil in good faith theundertakings they have assumed on the

basis of the Charter of the United Nationsand Universal Declaration of HumanRights. It is in this context that in thepresent world Human Rights have

become an important internationalissue. Their violation is considered not

just an internal matter of a state, but it

concerns the entire internationalcommunity. There is also a view thatsome big powers are misusing thisconcept of international concern and areinterfering in the affairs of other countriesin the name of protection of humanrights; this they are doing primarily tofulfil their own vested national interests.

Therefore, Human Rights issue hasbecome a subject of serious debate.

Many countries are signatories to theCovenants and Conventions on human

rights, which denotes that they haveundertaken a pledge to implementthem. Therefore, it is responsibility of thegovernments to protect and promote allthese rights. However, it is necessary toremember the distinction betweenhuman rights as articulated ininternational declarations andconventions, and those rights which arelaid down by the law of the country. Thelatter can be enforced, if necessary,through the intervention of the courts.

The record of the past half a century,since the adoption of the UN Charter, inthe implementation of human rights has

been dismal. Despite the fact that thenecessity of building an understandingand concern for making human rightsa reality had never been greater.


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35

EXERCISES

1. Define Human Rights.2. Explain the meaning of Universal Declaration of Human Rights.3. Describe the significance of Human Rights.4. Which circumstances led to the Declaration of Human Rights?5. When is Human Rights Day celebrated and Why?

HUMAN RIGHTS

Most of the important democraticsystems, including India, haverealised the importance of humanrights for its people and have eitherincorporated them in theirconstitutions, or have accepted themthrough Declarations.

India has played a predominantrole in this respect. The framers of theIndian Constitution adhered to theprinciple of human equality anddignity and made the FundamentalRights (Part III of the Constitution)

justiciable.


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Dharma

CHAPTER6

DHARMA is primarily an Indianconcept. Its root goes far back intothe Ancient Indian philosophy andthought. Our ancient seers realised itsimportance and emphasised thathuman life should be governed by theprecepts of Dharma.

WHATISDHARMA?

But, then a question arises. What isDharma and what are its basicelements?

The word Dharma is derived fromthe Sanskrit word-root dhr that meansto adopt, to support or to sustain.In simple language it means theprinciples of right. It refers to the moralconcerns of human beings. In commonparlance, it is often associated withreligion or spirituality. But Dharma isnot spirituality alone. To stick to

whatever course of d

Key Concepts and Theories

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