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India’s Constitution: Roots, Values and Wrongs

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How much Indian is India’s Constitution? This is one of the questions answered
in this book especially in the context of the ideological churning in India today. It
attempts to take forward the insights developed by great jurists like N. A. Palkhivala
and Justice H.R. Khanna to the effect that our Constitutional values are those human
values evolved in India through her crowded history of 5000 years. The author has
attempted to trace the roots of constitutional culture from pre-Vedic period.

Description

How much Indian is India’s Constitution? This is one of the questions answered
in this book especially in the context of the ideological churning in India today. It
attempts to take forward the insights developed by great jurists like N. A. Palkhivala
and Justice H.R. Khanna to the effect that our Constitutional values are those human
values evolved in India through her crowded history of 5000 years. The author has
attempted to trace the roots of constitutional culture from pre-Vedic period.

Constitutional values including those of dignity and fraternity are explained in the
background of an Indian theory of values which accords due importance to both
universal and relative values. How the umbilical cord of constitutional values is
connected to the plurality of life-ways, both religious and non-religious, highlights
the evolution of a composite constitutional culture. A useful analysis of the privacy
verdict by a nine-judge bench of the Supreme Court of India is included in the
chapter on Dignity of the Individual.

The author warns the readers of an imminent wrong as to how our constitutional
democracy can suffer gradual but substantial regression unlike sudden reversals
like a declaration of emergency or a military coup. Similarly, rule of men instead of
rule of values is a constitutional wrong though it is paraded as governance. Other
wrongs, like discarding the hierarchical feature of constitutional values and eroding
the civic virtue of critical reasoning which are the life-breath of constitutionalism,
are also emphasised here.

About the author
Dr M. P. Raju is a jurist and lawyer practising mainly in the Supreme Court of India. He is an awardee of Indo- Canadian Shastri Fellowship for the comparative study of the Constitutions of Canada and India and a visiting scholar in comparative constitutional law at McGill University, Montreal, Canada. His books include Minority Rights – Myth or reality (2002); Uniform Civil Code, a Mirage? (2003); and Education – a Mission in Jeopardy (2005).

CONTENTS

Chapter 1
Introduction

Chapter 2
Rule of values and not of men
Neither Charism Nor Heroism But Human Values
A Value-Based Character – The Key to Every Success and Happiness
Dethoring The Philosopher-King and Enthroning Values As The Ruler
Conduct Based on Values and Principles Rather than Whims and Fancies
Importance of Values in Policies on Education
A Theory of Human Values
Main Features of Human Values
Values – Personal, Cultural or Universal
Human Species and Human Values
Human Values – Created By and Ruling Over Individuals
Universal Human Values
A Global Ethic and Universal Values
Homeomorphism of Universal Values
Relative Universality of Universal Values
UDHR and Universal Values
World Religions Agreeing on Universal Values
Inter-Dependence of Cultural and Universal Values
Relativism, Monism, Minimum Universalism and Pluralist Universalism
Dialogical Method to Arrive at Universal Values
Classification of Values With Reference to Universal Values
Development of Universal Human Values in Indian Tradition
An Initial Marriage Between Dignity (Individual Autonomy) and Fraternity
The Ideal of Good Character Based on Universal Values
The Teaching of Brihaspati to Indra – Non-injury and Non-Imposition of One’s Wishes Towards All
Parshvanath and Other Sramanic Groups
Evolving Universal Values in the Upanishads
Gautam Buddha’s Preaching of Universal Values
Universal Values as Duties Common to All (sarvesham)
Ashoka and the Prescription of Dhamma as Universal Values
Universal Rules of Conduct for all Stages of Life (Ashramas)
Eight Virtues of the Self
Duties Common to All classes and All Stages of Life
Nine Duties of All Classes (Varnas)
Universal Values in Smriti Literature
Ahimsa (Non-Violence) as the Queen of all Universal Values
Dharma-Yuddha: Waging a War for Universal Values
Hinduness, Muslimness or Christianness and Universal Value
Indian Values and Universal Values
Conclusion: Back to an Indian Theory of Values

Chapter 3
Lifeways, Religions and Values
Religions, Worldviews and Ways of Life
Lifeways
Lifeways in Indian Tradition
Shattanar’s ‘Manimekalai’ and Lifeways
Pramanavadi Among the Votaries of the Path of Veda
Shaiva-vadi
Brahma –vadi
Vaishnavite
Veda-vadi
Ajivakas
Nirgranthas
Samkhya
Vaiseshika
Bhuta-vadi
Plurality of Lifeways in Ancient India
Indus Valley Civilization
Vedic Period
Mahabharata
Buddha and His Times
Maurya Period
Madhyamakahrdayakarika (Verses on the Heart of the Middle Way) of Bhaviveka (Sixth century)
?a?darsanasamuccaya of Haribhadra Suri (Eighth century CE)
Shankaracharya (788 – 820 CE)
Sarvasiddhantapravesaka
Nyayamanjari of Jayanta Bhatta (9th century)
Darsanasara of Devasena (Tenth century CE)
Saddarsananirnaya of Merutunga
Sarvadarsanasa?graha of Madhava-Vidyara?ya (ca. 1350 CE)
Sarvadarsanakaumudi (1500 CE) of Madhava Sarasvati
Sarvasiddhantasa?graha
Avaidika systems
Vaidika systems
?a?darsanisiddhantasa?graha by Ramabhadra Dik?ita (seventeenth or eighteenth century CE).
The Sarvamatasamgraha
Plurality of Lifeways as reflected in the Medieval Bhakti Literature.
Gorakhnath (Twelfth century)
Vidyapati (1360- 1448 A.D.)
Kabir (1450-1520)
Guru Nanak (1469-1539)
Ekanath (1533-1599)
What is religion?
Geertz – worldview and Ethos
Ninian Smart – Seven-Dimentional Definition of Religion
Ritual-Practical Dimension
Emotional-Experiential Dimension
Legal-Ethical Dimension
Narrative-Mythic Dimension
Doctrinal-Philosophical Dimension
Social-Organizational Dimension
Material-Artistic Dimension
Lifeway-Pluralism and Lifeway-Neutrality
Religious and Non-Religious Lifeways
Collective and Individual Lifeways
Official and Informal Lifeways
Lifeways – Hard to Refute and Establish
Possible Responses to Plurality of Lifeways
Absolute Exclusivism
Absolute Relativism
Hegemonistic Inclusivism
Realistic Pluralism.
Regulative Pluralism
Dialogical Pluralism as Secularism
Pluralist Secularism
Mosaic Pluralism
Religions and Lfeways in the Constitution
Lifeway-Neutrality (panth-nirapekshata) as a Constitutional Concept
Lifeways, Relative Values and Universal Values

Chapter 4
Constitutional Culture
The Notion of Constitutional Culture
Constitutional Culture in India
The Myth of Oriental Despotism and Absence of a Constitutional Culture
An Evolving Constitutional Culture
Supreme Court of India on Constitutional Culture
Spiritual Value of a Free Judiciary and Constitutional Culture
Interpretation in Tune with Constitutional Culture and Philosophy
Correctionalist Criminal Justice as Part of the Constitutional Culture of India
Death Penalty and Constitutional Culture
Prison Justice and Constitutional Culture
Reservation in Higher Education and Constitutional Culture
Human Dignity as Part of Our Constitutional Culture
Custodial Torture by Police a Wound on Constitutional Culture
Empathy With Every Little Individual is the Highest Principle of Our Constitutional Culture
Constitutional Culture and Abolition of Caste Hardships Through Reservation
The Cultural Core of the Constitutional Protecton
Handcuffing Against the Constitutional Culture
A Constitutional Culture in Addition to a Constitution
Secularism and Constitutional Culture
Constitutional Culture Should Inform the Police Force
Constitutional Philosophy
Our Constitutional Philosophy is for Socio-Economic Democracy to Women
Secularism is Embedded in Our Constitutional Philosophy
Providing Night Shelters is in Consonance With the Constitutional Philosophy
Socio-Economic Justice Part of Constitutional Philosophy
Perverse Decision on Political Defection a Death Knell of Constitutional Philosophy
Nationalised Banks to Effectuate Constitutional Philosophy
Bureaucracy to be Guided by Constitutional Philosophy
Equitable Distribution of Material Resources Part of Constitutional Philosophy
Upliftment of SC/ST/OBC Part of Constitutional Philosophy
The Heritage of India’s Constitutional Culture
Prehistoric Period and Constitutional Culture
The African Connection
Sindhu-Saraswati Civilization and Constitutional Culture
Cultural Homogeneity and Diversity
Secularism and Pluralism
Shared ideology and diversity
Non-Violence (Ahimsa) and Lack of Warfare
State and Political Structure
Town-planning
Administrative System
State Structure – Imperial or Quasi-Federal?
Contribution of Sindhu-Sarasvati Civilization to the Present Constitutional Culture
Constitutional Culture in Vedic period
Theories on the Origin of State
Daitya/Non-Arya Tradition
Digha Nikaya Tradition
Parshwanath
Monarchies and Republics
Upanishads and Constitutional Culture
Constitutional Culture and Mahabharata
Kautalya’s Arthashastra and Constitutional Culture
Constitutional Culture and Ashoka
Dandaniti and Arthashastra as the Science of Constitutional Governance
Danda is not Necessarily Punishment
Composite Culture as Constitutional Culture
Christian Cultures
Muslim Cultures
The Inarticulate Major Premise
Can Constitutional Culture be treated as a Way of Life

Chapter 5
CONSTITUTIONAL VALUES
Emphasis on Constitutional Values
Values of the Constitution More Basic Than its Features
Preambular Values as Basic Values
Dignity of the Individual
Fraternity
Sovereignty
Socialism
Secularism
Democracy
Republicanism
Justice
Liberty
Equality
Unity and Integrity of the Nation
Fundamental Rights as Universal Values
Directive Principles as Constitutional Values
Fundamental Duties
Part IV: A Fundamental Duties
Hierarchy of Constitutional Values
Objectives Resolution and Preambular Values
Fraternity added as a Core Value
Values of Non-Violence, Truthfulness and Hope
Constitutional Values as Universal Values are Non-Negotiable
Constitutional Values and Group Values

Chapter 6
Dignity of the Individual : The Supreme Constitutional Value
A Constitutional Victory over Counter-Dignity
Individual Dignity in Indian Traditions
Autonomy of Individual as the Starting Point for Fraternity and Society
Autonomy and Dignity of a Little Fish
Sheel as Respect for Individual Dignity – A Daitya-Deva Synthesis
Brihaspati to Indra – Dignity as the Basis of Non-Injury and Non-Imposition of One’s Wish.
Happiness as the Ultimate End of a Dignified Human Life
Dignity of the Individual and Sramanic Groups
Upanishads and Individual Dignity
Gautam Buddha’s Preaching Upholding Individual Dignity
Individual Dignity Central to Duties Common to All (sarvesham)
Individual as the Basis for Society and State
Two Dimensions of an Individual as the Basis of Dignity
Non-Violence and Hope
Human Person and Her Dignity
Human Person – Creator and Servant of Human Values
Interdependence and Mutuality of Individual and Society
Individual Versus Society/Nation
Attitudes of High and Low, Leaders and Followers, Saints and Sinners
Minority and Majority
Dignity of the Individual and Constitutional Provisions
Preamble and Dignity
Dignity at the Core of Fundamental Rights
State Policy and Dignity
Fundamental Duties and Dignity
Privacy – a Necessary Ingredient of the Value of Individual Dignity
Privacy Verdict by the Apex Court
Indian Traditions on Privacy
Unanimous but Multifaceted Rap on Government
Fearsome Scenario for Privacy

Chapter 7
FRATERNITY: A Foundational Value in the Constitution of India
Meaning of Fraternity
‘Ubuntu’ as Fraternity
Philia as Fraternity
Fraternity across Cultures
Fraternity in Indian Traditions
From Individual Autonomy to Fraternity
Bandhuta (fraternity) in Rigveda
The Hymns of Concord and Fraternity
Ahimsa – as the Epitome of Fraternity (Bandhuta)
Fraternity in Constitution of India
Fundamental Rights and Fraternity
Fraternity and Directive Principles
Fundamental Duties – a Magna Carta of Fraternity
Fraternity and the Supreme Court of India
Fraternity in Other Constitutions
Universal Declaration of Human Rights and Fraternity
Fraternity and the Evolutionary Process
Fraternity and Other Values and Ideals
Fraternity, Sorority and Friendship
Individual Autonomy and Fraternity
Fraternity and Individualism
Fraternity and Community
Fraternity – Small Scale and Large Scale
Fraternity and Justice
Fraternity and Liberty
Fraternity and Equality
Fraternity and Federalism
Nationalism and the Value of Fraternity
Fraternity and Diversity
Fraternity and Dictatorship/Fascism
Fraternity: Leadership Versus Hero-Worship
Fraternity as Caring – A Universal Obligation and a Human Right for the Future

Chapter 8
CONCLUSION
Hierarchical Feature of Constitutional Values
Transcendental Feature : Means as Important as the End
Non-violence – The Highest of all Constitutional Values
Hope as a Constitutional Value
Critical Reasoning – The Lifeline of Constitutional Values

Bibliography
Primary Sources
List of cases
index

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