Lecture Series L
invites you to its
Lecture Series L
Shibani Kinkar Chaube
Construction of Rights: The Indian Experience
5 pm • 27 September, 2011 (Tuesday) • Yala Maya Kendra, Patan Dhoka
The concept of ‘rights’, in the sense of entitlement, is a modern phenomenon. It grew in the wake of the liberation of the civil society from the clutches of the state during the Enlightenment. Earlier it was negatively tied up with law and positively with privilege.
The concept, springing from the theory of social contract counterposed the human beings against the state. Hence the Fundamental Rights, framed in the negative language, in a constitution. They were naturally owned by human beings and could not be taken away by the state. The judiciary is their guarantor.
The concept of positive social rights developed later – out of welfarism and socialism. Society and the state were held to be the sources of rights. After World War II the UNO drew up the charter of human rights, much larger in scope than Fundamental Rights. Human rights are claimed essentially on the ground of one’s birth as a human being; but they are not natural rights. They belong to the world of aspiration and are ever widening.
Though the Bill of Rights of 1628 is held to be the source of the modern concept of rights, the British system of government does not admit of any charter of fundamental rights in the US sense. In Britain rights flow from Parliament and the common law – stare decisis. In the colonial period Indians had no right except what was sanctioned by law or was tolerated by it. The rights to life, property and liberty were indirectly derived from the Indian Penal Code, the Criminal Procedure Code and the Civil Procedure Code. It was towards the end of the nineteenth century that the Indian national movement started talking about a ‘charter of rights’ and enlisting its content.
The Constituent Assembly of India had before it the experiences of the democratic world, the UN declaration of Hunan Rights and her own experience with colonial rule. A difference arose between those who wanted to frame rights in a positive way – in the welfarist direction – and those who wanted then in a negative – legal language. The result was creation of two chapters on rights (Part III and Part IV). Over the following six decades, new rights have evolved in India, and the Supreme Court itself has recognized fundamental rights, constitutional rights and legal rights.
Shibani Kinkar Chaube, MA, DPhil (Calcutta University), spent more than five decades in teaching and research, his last position held being Professor of Indian Politics, Department of Political Science, University of Delhi, preceded by that of Professor and Director, Centre for Himalayan Studies, North Bengal University, and followed by a fellowship on Parliamentary Studies in the Lok Sabha secretariat for two years.
Prof Chaube has authored Constituent Assembly of India: Springboard of Revolution; Hill Politics in North-East India; The New Constitution of the USSR; Electoral Politics in North-East India; Politics and Constitution in China; Colonialism, Freedom Struggle and Nationalism in India; Government and Opposition: Parliamentary Democracy in India; The Making and the Working of the Indian Constitution; co-authored The State of Political Theory: Some Marxist Essays; edited The Himalayas: Profiles of Modernization and Adaptation; and co-edited Indian Constitution; A Review; Social Movements in Contemporary India and Indian Democracy at the turn of Century besides contributing more than a hundred papers and articles in books, periodicals and dailies home and abroad.