Sunday, January 8, 2012
Monday, November 14, 2011
RIGHTS OF MINORITIES: MAPPING A MIRAGE
RIGHTS OF MINORITIES: MAPPING A MIRAGE
BY
DR. NAFEES AHMAD*
1. AN EXORDIUM
The hurricanes of human hierarchy are rooted in the classic, dualistic, elitic and feudalistic megrims of social animals called humans. The frontiers of fraternity catapulted into frenzy, individual inferno morphed into groups’ grief and simmering volcano of disparity, ultimately, bestowed upon India Communalism and Terrorism which is pervading every nook and corner of the country at a pace never witnessed before. The so-called theology of Appeasement of Muslims accords primacy to the plausibility of violence against Muslims as a medium of securing to their marginalization. On the other hand, the equity, equality and parity wedded to human rights and human dignity and the ideology of terrorism are no different from the former except its being a global phenomenon. Consequently, India has become an ivory tower of iniquitous social orders whereat minorities are mauled, Dalits are deprived, tribals are trivialized and society is stratified and Muslims in particular are subjected to subordination of the majority community embracing an unwritten policy of ensuring their exclusion, alienation and demonization only on the ground of being a member of a particular social group or social origin or minority or religion or race or caste or political opinion and so on so forth. Although, there is no constitutional recognition of the fact which many would regard as essential for a democracy that the powers of the state are originally the collective powers of the people which the state merely exercise on their behalf.
The Constitutional construction of constitutionalism on rights of minorities instill a sense of pride among the minorities of the country but constitutionalization of the same is subjected to prejudices in every layer of state set-up, administrative apparatus and political paraphernalia of the country. The non-discrimination of oriental and occidental orientations whereunder heterodoxy and hermeneutics of Lego-institutional, geo-political and socio-economic perspectives and propositions are envisioned is conspicuous by its absence in the functioning of the Indian state which could have been crafted towards the ontology of rights of minorities and semantics of human rights. The minority jurisprudence is a perennial pursuit for equality with equity, liberty with liberalism and fraternity with diversity for, We, the Muslims of India beyond the horizontal and vertical limitations of Constitutional Diaspora that is reflected in the conflation, cosmology and schematization of Articles 25 to 30 on the thematics of affirmative action and state responsibility including economics of minority rights under the tempest of human rights, Dalit jurisprudence and transcendental institutionalism an idea that is evolved by Nobel Laureate Dr. Amartya Sen in his treatise Idea of Justice.
The moral authority and practical efficacy of human rights are adversely affected by a range of myths and miasma of misunderstandings-from claims regarding the moral status of human rights of minorities as a fully comprehensive moral doctrine to the view that the possession of rights is antithetical to recognizing the importance of moral duties. The claim made by some that rights of minorities ultimately only exists as legal phenomena and that nation-states are inherently hostile to the spirit of human rights. The understanding of minorities’ rights in a land of human hierarchy and asymmetrical intersections like India is being subjected to distortions of high order. The paradigms and praxis of rights of minorities on a comparative conceptualization and jurisprudential premise should have been a perennial primacy of the state instrumentalities in conformity with the preambular propositions of the Constitution of India. Therefore, the rights of minorities make accountable state and non-state actors, corporate houses, MNCs, and civil society institutions to the Constitutional constructions of equality for all and justice for all which are of indelible impact and might shape the geography of legislative business in a land of hierarchy like India for the present and for the posterity. The rights of minorities are a challenge to the political class of the country to reconsider their understanding of critical analysis of enduring issues pertaining to the largest minority in the classical and contemporary reality of human rights of minorities.
2. DEFINITIONAL DILEMMA
It is often assumed that minority rights belong to the field of human rights but the relation between the two kinds of rights are complex and polemical. The United Nations, in drafting the Universal Declaration of Human Rights, deliberately decided to leave out minority rights. The League of Nations had had a minority-rights regime, but this was thought to have failed, and the concept of minority rights was believed to have been exploited by Nazi Germany as an excuse for aggression. The Universal Declaration is based on the assumption that individual human rights, including the prohibition of discrimination and the right to practice one’s culture, are sufficient to protect cultural minorities. The UN did recognize that there might be a special problem of minorities in setting up its sub-commission on Prevention of Discrimination and Protection of Minorities.
The most important provision of international law relating to minority is Article 27 of the International Covenant on Civil and Political Rights, 1966 which provides that, in those states in which ethnic, religious or linguistic minorities exist, “persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language”. This goes beyond the Universal Declaration, but contains several problems;
1. It applies only to those states in which minorities exist, thereby encouraging states to deny that minorities exist in their jurisdictions;
2. It recognizes the rights of persons belonging to minorities, not of minorities as such;
3. It imposes on states only duties of non-interference with the rights of such persons, but no duties to assist them.
The reluctance of states to take minority rights seriously has been attributed to the following factors:
1. It would encourage outside interference,
2. Minority problems are diverse and it is doubtful that there are universal solutions.
3. Minority rights threaten the cohesion of states,
4. Rights for minorities would discriminate against majorities
Nevertheless the UN adopted in 1992, a Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. The title of declaration follows Article 27 in assigning rights to persons not to minority groups. However, Article 1 of the declaration provides that states “shall protect the existence and the national or ethnic, cultural, religious and the linguistic identity of minorities within their respective territories, and shall encourage conditions for the promotion of that identity”. Thus, although the declaration does not recognize minority group rights, it goes further than Article 27 in imposing on states the obligation to take positive measures to protect minority identities.
The word”minority” has not been defined in the Constitution of India. The Motilal Nehru Report, 1928 showed a prominent desire to afford protection to minorities but did not define the expression. The Sapru Report in 1945 also proposed inter-alia a Minorities Commission but again did not define who is a minority? The U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities has defined ‘minority’ by an inclusive definition as under:
1. The term ‘minority’ includes only those non-document groups in a population which possess and wish to preserve stable ethnic, religious or linguistic traditions or characteristics markedly different from those of the rest of the
Population;
2. Such minorities should properly include a number of persons sufficient by themselves to preserve such traditions or characteristics; and
3. Such minorities must be loyal to the State of which they are nationals
Although the word “minorities occurs in the marginal note to Article 29, it does not occur in the text.” The original proposal of the advisory committee in the constituent assembly recommended that the “Minorities in every unit shall be protected in respect of their language, Script and culture and no laws or regulations may be enacted that may operate oppressively or prejudicially in this respect”. It means ‘a minority is a non-dominant group in a relative terminology that represents the smaller of two numbers, sections or group called ‘majority’. In that sense there may be political minority, religious minority, and linguistic minority as propounded in T.M.A. Pai Foundation V. State of Karnataka
3. CONCLUSION
The word “Minority” must be defined by the Parliament while amending by way of an insertion into Article 29 of the Constitution of India to end conflicting decisions of the judicial branch of the State. The 10% reservation of Muslims of India must also be ensured in the services under the Union of India and in all States irrespective of any impediment in the name of religion, caste, language, and region or otherwise. The Rights of Muslim to equal opportunities and equal access to all natural and national resources deviant to any prejudices, predilections or preposterous argument must be made available under the rigours of law of the land. The Muslims reservation proportionate to their population must be made in the Parliament and State legislative bodies by incorporating Muslim Dominated Areas through fresh delimitation of constituencies. The proportionate to the population the representation of the Muslims in the armed forces under the Union of India must also be ensured by suitably amending the existing law or bringing in a new legislation thereto in the Parliament or otherwise. The proportionate to the population the representation of the Muslims in the Police Force under the various States must also be made available to curb the menace of communal riots, regional riots, linguistic riots and caste riots.
The establishment of more minority educational institutions in the Country be encouraged and promoted. The Right not to be Poor, Right to be Consulted and Right of Participation in the “Inclusive Economic Growth Model” of Development in every walk of life must also be ensured without any discrimination whatsoever. The shibboleth “Unity with Diversity” must be promoted instead of Unity in Diversity. The in the 33% reservation of Women in legislative bodies separate reservation for Muslim Women must also be made that seeks to provide better education, health, hygiene, housing and skills to the Muslim Women. The the working of existing Madarsas must not be disturbed and they should be allowed to continue in imparting religious education without any State interference or otherwise. The Leadership building among the Muslims must be made the part of affirmative action through a system of incentives, enterprises and to ensure diversity at the work places public and private sectors must come together. The Local Bodies and Panchayati Raj Institutions must be utilized to reflect the inclusive growth and human development in India. The ideological indoctrination against Muslims by private and public undertakings, entities, institutions and organizations must be made a criminal offence of non-bailable and cognizable character. The status of Muslim places of worship must be maintained as of 1947 status. Moreover, heritage buildings and historical monuments associated with the Muslims must also be preserved, protected and promoted by the Union of India in real terms at the ground level.
*Author is Assistant Professor teaches Comparative Constitutional Law at South Asian University in New Delhi.
BY
DR. NAFEES AHMAD*
1. AN EXORDIUM
The hurricanes of human hierarchy are rooted in the classic, dualistic, elitic and feudalistic megrims of social animals called humans. The frontiers of fraternity catapulted into frenzy, individual inferno morphed into groups’ grief and simmering volcano of disparity, ultimately, bestowed upon India Communalism and Terrorism which is pervading every nook and corner of the country at a pace never witnessed before. The so-called theology of Appeasement of Muslims accords primacy to the plausibility of violence against Muslims as a medium of securing to their marginalization. On the other hand, the equity, equality and parity wedded to human rights and human dignity and the ideology of terrorism are no different from the former except its being a global phenomenon. Consequently, India has become an ivory tower of iniquitous social orders whereat minorities are mauled, Dalits are deprived, tribals are trivialized and society is stratified and Muslims in particular are subjected to subordination of the majority community embracing an unwritten policy of ensuring their exclusion, alienation and demonization only on the ground of being a member of a particular social group or social origin or minority or religion or race or caste or political opinion and so on so forth. Although, there is no constitutional recognition of the fact which many would regard as essential for a democracy that the powers of the state are originally the collective powers of the people which the state merely exercise on their behalf.
The Constitutional construction of constitutionalism on rights of minorities instill a sense of pride among the minorities of the country but constitutionalization of the same is subjected to prejudices in every layer of state set-up, administrative apparatus and political paraphernalia of the country. The non-discrimination of oriental and occidental orientations whereunder heterodoxy and hermeneutics of Lego-institutional, geo-political and socio-economic perspectives and propositions are envisioned is conspicuous by its absence in the functioning of the Indian state which could have been crafted towards the ontology of rights of minorities and semantics of human rights. The minority jurisprudence is a perennial pursuit for equality with equity, liberty with liberalism and fraternity with diversity for, We, the Muslims of India beyond the horizontal and vertical limitations of Constitutional Diaspora that is reflected in the conflation, cosmology and schematization of Articles 25 to 30 on the thematics of affirmative action and state responsibility including economics of minority rights under the tempest of human rights, Dalit jurisprudence and transcendental institutionalism an idea that is evolved by Nobel Laureate Dr. Amartya Sen in his treatise Idea of Justice.
The moral authority and practical efficacy of human rights are adversely affected by a range of myths and miasma of misunderstandings-from claims regarding the moral status of human rights of minorities as a fully comprehensive moral doctrine to the view that the possession of rights is antithetical to recognizing the importance of moral duties. The claim made by some that rights of minorities ultimately only exists as legal phenomena and that nation-states are inherently hostile to the spirit of human rights. The understanding of minorities’ rights in a land of human hierarchy and asymmetrical intersections like India is being subjected to distortions of high order. The paradigms and praxis of rights of minorities on a comparative conceptualization and jurisprudential premise should have been a perennial primacy of the state instrumentalities in conformity with the preambular propositions of the Constitution of India. Therefore, the rights of minorities make accountable state and non-state actors, corporate houses, MNCs, and civil society institutions to the Constitutional constructions of equality for all and justice for all which are of indelible impact and might shape the geography of legislative business in a land of hierarchy like India for the present and for the posterity. The rights of minorities are a challenge to the political class of the country to reconsider their understanding of critical analysis of enduring issues pertaining to the largest minority in the classical and contemporary reality of human rights of minorities.
2. DEFINITIONAL DILEMMA
It is often assumed that minority rights belong to the field of human rights but the relation between the two kinds of rights are complex and polemical. The United Nations, in drafting the Universal Declaration of Human Rights, deliberately decided to leave out minority rights. The League of Nations had had a minority-rights regime, but this was thought to have failed, and the concept of minority rights was believed to have been exploited by Nazi Germany as an excuse for aggression. The Universal Declaration is based on the assumption that individual human rights, including the prohibition of discrimination and the right to practice one’s culture, are sufficient to protect cultural minorities. The UN did recognize that there might be a special problem of minorities in setting up its sub-commission on Prevention of Discrimination and Protection of Minorities.
The most important provision of international law relating to minority is Article 27 of the International Covenant on Civil and Political Rights, 1966 which provides that, in those states in which ethnic, religious or linguistic minorities exist, “persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language”. This goes beyond the Universal Declaration, but contains several problems;
1. It applies only to those states in which minorities exist, thereby encouraging states to deny that minorities exist in their jurisdictions;
2. It recognizes the rights of persons belonging to minorities, not of minorities as such;
3. It imposes on states only duties of non-interference with the rights of such persons, but no duties to assist them.
The reluctance of states to take minority rights seriously has been attributed to the following factors:
1. It would encourage outside interference,
2. Minority problems are diverse and it is doubtful that there are universal solutions.
3. Minority rights threaten the cohesion of states,
4. Rights for minorities would discriminate against majorities
Nevertheless the UN adopted in 1992, a Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. The title of declaration follows Article 27 in assigning rights to persons not to minority groups. However, Article 1 of the declaration provides that states “shall protect the existence and the national or ethnic, cultural, religious and the linguistic identity of minorities within their respective territories, and shall encourage conditions for the promotion of that identity”. Thus, although the declaration does not recognize minority group rights, it goes further than Article 27 in imposing on states the obligation to take positive measures to protect minority identities.
The word”minority” has not been defined in the Constitution of India. The Motilal Nehru Report, 1928 showed a prominent desire to afford protection to minorities but did not define the expression. The Sapru Report in 1945 also proposed inter-alia a Minorities Commission but again did not define who is a minority? The U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities has defined ‘minority’ by an inclusive definition as under:
1. The term ‘minority’ includes only those non-document groups in a population which possess and wish to preserve stable ethnic, religious or linguistic traditions or characteristics markedly different from those of the rest of the
Population;
2. Such minorities should properly include a number of persons sufficient by themselves to preserve such traditions or characteristics; and
3. Such minorities must be loyal to the State of which they are nationals
Although the word “minorities occurs in the marginal note to Article 29, it does not occur in the text.” The original proposal of the advisory committee in the constituent assembly recommended that the “Minorities in every unit shall be protected in respect of their language, Script and culture and no laws or regulations may be enacted that may operate oppressively or prejudicially in this respect”. It means ‘a minority is a non-dominant group in a relative terminology that represents the smaller of two numbers, sections or group called ‘majority’. In that sense there may be political minority, religious minority, and linguistic minority as propounded in T.M.A. Pai Foundation V. State of Karnataka
3. CONCLUSION
The word “Minority” must be defined by the Parliament while amending by way of an insertion into Article 29 of the Constitution of India to end conflicting decisions of the judicial branch of the State. The 10% reservation of Muslims of India must also be ensured in the services under the Union of India and in all States irrespective of any impediment in the name of religion, caste, language, and region or otherwise. The Rights of Muslim to equal opportunities and equal access to all natural and national resources deviant to any prejudices, predilections or preposterous argument must be made available under the rigours of law of the land. The Muslims reservation proportionate to their population must be made in the Parliament and State legislative bodies by incorporating Muslim Dominated Areas through fresh delimitation of constituencies. The proportionate to the population the representation of the Muslims in the armed forces under the Union of India must also be ensured by suitably amending the existing law or bringing in a new legislation thereto in the Parliament or otherwise. The proportionate to the population the representation of the Muslims in the Police Force under the various States must also be made available to curb the menace of communal riots, regional riots, linguistic riots and caste riots.
The establishment of more minority educational institutions in the Country be encouraged and promoted. The Right not to be Poor, Right to be Consulted and Right of Participation in the “Inclusive Economic Growth Model” of Development in every walk of life must also be ensured without any discrimination whatsoever. The shibboleth “Unity with Diversity” must be promoted instead of Unity in Diversity. The in the 33% reservation of Women in legislative bodies separate reservation for Muslim Women must also be made that seeks to provide better education, health, hygiene, housing and skills to the Muslim Women. The the working of existing Madarsas must not be disturbed and they should be allowed to continue in imparting religious education without any State interference or otherwise. The Leadership building among the Muslims must be made the part of affirmative action through a system of incentives, enterprises and to ensure diversity at the work places public and private sectors must come together. The Local Bodies and Panchayati Raj Institutions must be utilized to reflect the inclusive growth and human development in India. The ideological indoctrination against Muslims by private and public undertakings, entities, institutions and organizations must be made a criminal offence of non-bailable and cognizable character. The status of Muslim places of worship must be maintained as of 1947 status. Moreover, heritage buildings and historical monuments associated with the Muslims must also be preserved, protected and promoted by the Union of India in real terms at the ground level.
*Author is Assistant Professor teaches Comparative Constitutional Law at South Asian University in New Delhi.
Monday, January 18, 2010
Judicial Reforms: Count down Must Bigin Now
Judicial reforms has come to dominate the obtuse obssesions of political pomtiffs of Indian...
Thursday, July 16, 2009
ISLAM IN THE AGE OF GLOBAL CHALLENGES: ALTERNATIVE PERSPECTIVES OF THE GULEN MOVEMENT IN SOUTH ASIA (Towards Human Rights & Social Ontology)
ISLAM IN THE AGE OF GLOBAL CHALLENGES: ALTERNATIVE PERSPECTIVES OF THE GULEN MOVEMENT IN SOUTH ASIA
(Towards Human Rights & Social Ontology)
By
Dr. Nafees Ahmad*
“Fethullah Gulen is a man with God is always in the majority”
(Towards Human Rights & Social Ontology)
By
Dr. Nafees Ahmad*
“Fethullah Gulen is a man with God is always in the majority”
The collapse of the Ottoman caliphate was a watershed dividing the classical and modern phases of Islam. Since then the Turkish world has been wrenched away from its Islamic heritage in pursuit of a modernity that is perceived to be secular, scientific and atheistic. As is well-known the Turkish establishment has prosecuted, banned and suppressed the Islamic aspirations of the Turkish people in the name of the secular ideals of the Turkish Republic. It is in this context and within these parameters that the religious thoughts of Fethullah Gulen have taken shape over the last few decades. In contemporary Islam, as in all religions, there is a spectrum of movements ranging from militant fundamentalist to ultra-liberal modernist. The Gulen Movement is ranked as modestly Liberal with an emphasis on the devotional rather than the social and political aspects of Islam. Therefore, it is a healthy development. Many reform movements in today’s Islam advocate nothing less than wholesale appeasement to modern decadence. The Gulen Movement, on the other hand, is motivated by a pragmatic assessment of modern conditions and a proportionate and intelligent response to the modern impasse. Similarly, on sensitive issues such as the veiling (hijab) of women Gulen expounds that while such matters are symbolically potent, in broader sweep of Islam they are details, not essentials. His reading of the Holy Quran also seeks to develop a wholesale sense of proportion. There is always an on-going “negotiation” between reader and Writ, he says or else the text falls dead. There is an shakable core –the unity of God—but peripheral matters are subject to renewed interpretation by every generation. This is what keeps the text and the religious spirit alive, animated and kicking and prevents its ossification.
Civilization is a method of living, an attitude of equal respect for all men.1 The degree of a Nation’s civilization is marked by its disregard for the necessities of existence2. Therefore, Indian civilization includes Muslims too because civilization goes beyond the regimes of religion and one of the unpardonable sins in the eyes of civilization is to leave any segment thereof deprived, demonized and dehumanized. No demonization is deviant to divinity on this planet can sustain without being claimed by every adherent of every religion. Muslims are not a herd of animals whom we compassion; they are also the creatures of emotions, equality, dignity, needs and wants etc. If the concept of religion has any sanctity, validity and certainty or relevance it can only make us larger, freer and more loving. If religion can not do this, let’s get rid of it. Epistemologically speaking, Muslims and globalization go together in terms of their visibility and divinity but in terms of sociology of economics they are supremely suffering from the sense of alienation and are subjected to economic extravasations, obtuse opportunities and gawky globalization at national and supranational levels.
The theology of globalization is being executed in such a fashion which has, unfortunately, decorticated, denuded and desquamated the Muslims and got them brawled in a state of terra-incognita wherein economic evolution, political participation and cozy co-existence among the comity of nation-states has, rightly, become the priority of the Gulen Movement in a Unipolar World Order. However, Muslims are morphed into challenges for others in South-Asia and elsewhere as perennial parasites, contumate communities and existential atrophy. On the other hand, they are riding on the ebbs and tides of deprivation, dehumanization and demonization crowned with xenophobia in every geo-political entity across the globe devoid of equality, liberty and fraternity sanctified by the desideratum of human rights and celestially ordained in the Holy Quran. Therefore, these challenges should be churned into advantages, offers and opportunities by the Muslims themselves in tandem with the mandate of Gulen Movement through the gospel of globalization as it has basically originated from devine delineations and have been expounded in the Holy Quranic injunctions and further re-affirmed, reiterated and re-oriented by the Gulen Movement which has made entire process congruent to the gestation of globalization and ecclesiastical edifices.
Gulen inspires and influences Muslims worldwide including India and South-Asia and his orientations are more important than ever before. No doubt many of these pleasing features of Gulden’s thought come from roots in the Turkish traditions. Ataturk had outlawed the Sufi brotherhood in Turkey but non amount of repression could remove the mystical spirit from the Turkish soul and it is from this that Gulen has drawn much of his inspiration. Unlike most “liberal Islam” the Gulen Movement preserves some real spiritual depth and a genuine piety. This is the hallmark of the educational institutions the movement has sponsored whereat with modern curriculum teachers promulgate Islam through example rather than direct indoctrination. The dominant “flavor” of modern Islam has been Arabic. The disintegration of Ottoman Empire re-empowered the Arabs who again took possession of the Holy Places in Mecca and Medina But neo-Arabic Islam has been dominated by the narrow backward-looking perspectives of the Wahhabis and has failed to find an effective engagement with and response to the conditions of modernity .In some measure, Islam has been retarded by this . Worst of all, Wahhabis dominance has done nothing to revitalize the esoteric core of Islam. The religion has tended towards an empty externalism of ritual obedience. The Khilafat Movement of Turkey was also fully supported in India by M.K.Gandhiji—Father of Nation—during freedom struggle of India. Gulen, of late, has really made indelible imprints upon whole of the South-Asia. Since time immemorial India too has been a land of Sufism (Mysticism) inspired by the Turkish traditions evolved out of Holy Quranic hermeneutics and teachings of Fethullah Gulen. Although, there have been peculiar paradoxes around Gulen Movement attributed by its detractors but Gulen Movement emerged neat and clean at every stage of its evolution. Similarly, Sufism was also castigated but it has become a way of life in and around India since India is a faith-based society. Moreover, Fethullah Gulen can be juxtaposed with Jalaluddin Muhammad Akbar (a Mughal Emperor) whose teachings of Din-E-Ilahi are still relevant in India. But Gulen Movement and Gulenites are most scientific, rationale and contemporary in commensurate with Holy Quranic injunctions. Today it is the Gulen Movement which has become the bedrock of human values, inter-faith dialogue, human rights, social justice, affirmative action and multi-party democracy and India has been pursuing the same agenda with minor aberrations. The Gulen has been accepted in other faiths also and has become a bridge for reconciliation, tolerance and peace.
The Gulen Movement is a welcome challenge to this “flavor” and it can only be healthy for Islam to have revival of the distinctively Turkish spirit with its emphasis on social pragmatism and mystical piety. Among modern movements Gulen’s offers much. Gulen seems to understand that the best aspects of tradition need to be preserved by the compensations that surely follow the religious decline of modern times. This is not to suggest that Gulen has all the answers. Contemporary Islam needs more Gulen movements, each searching for ways through the complex and toxic labyrinth of our troubled times.
There can be no question of the depth and sincerity of Gulen’s faith or of his intelligent and humble search for a legitimately modern expression of Islam in the Turkish context as well as in the context of rest of the world. The kernel of the Gulen Movement is to make the optimum utilization of the dichotomies, deviations and dimensions inherent in the Marxian and Weberian orientations practiced by the Christian world et al as these are the offshoots of Islam sans Arab and Turkish Islam divide. Today, Gulen Movement and its presence in the US—a land of liberty, equality and free speech—is testimony of its belief in democracy, human rights and secularism. This paper tries to capture some of the essential insights, innovations, impacts and inquisitions that inform the debates and discourses occupying the centre stage ever since the inception of the Gulen Movement and influence thereof in different geo-political settings as an amalgamation of Islamic teachings and modern western secular values wedded with human rights, equality, social justice, participatory democracy and inter-civilizational dialogue and how to convert these paradigms and principles into resources for Islam and its adherents in age of global challenges.
Friday, November 14, 2008
LEGAL EDUCATION AT THE CROSSROADS IN INDIA
LEGAL EDUCATION AT THE CROSSROADS IN INDIA
Professional Ethics: A Paradigmatic Juricraft
BY
DR.NAFEES AHMAD
Professional Ethics: A Paradigmatic Juricraft
BY
DR.NAFEES AHMAD
LL.M.,Ph.D.
SENIOR LECTURER
FACULTY OF LAW
ALIGARH MUSLIM UNIVERSITY, ALIGARH-202002-INDIA
(ABSTRACT)
SENIOR LECTURER
FACULTY OF LAW
ALIGARH MUSLIM UNIVERSITY, ALIGARH-202002-INDIA
(ABSTRACT)
Legal education, which is fundamental, rudimentary and sine qua non to the modernizations and progress of any society, has remained a low priority in India. Despite efforts beginning in the late 1960 which promoted a few law faculties within existing universities as well as the establishment of a few five-year national law schools, legal education has lagged behind in playing its role as an instrument of social ordering. As a result, the Indian law schools have paid very little attention to the grand design of law as the organizer and prime mover of modern society. Unless law schools - at least a few of them - focus their research and teaching on all pervasive, ever-changing needs and challenges of the Indian society, especially in the context of globalization, the law in desultory, dystopian and dusty books and the law in real Indian life and elsewhere will exist in alien worlds-and remain the worse for it. In societies where the rule of law is assured, law schools constantly work for the cohesion, coordination, harmony and reconciliation between the law and life of the people, encouraging order and peace essential for progress. India urgently and indisputably needs law academies, schools and institutions working in that direction. The emerging global context has intensified the urgency and the need for such initiative to be an effective vehicle for the creation and successful operation of a rule of law society in India wedded with a confluence of care, compassion and camaraderie beyond the occidental and oriental dichotomies.
It is, indeed, the pedagogical pursuits well-founded upon intellectual inquisitions, harmonious heterodoxy, and paradigmatic praxis in law which still remains ad avizandum at the threshold of perennial papistry, evil episcopacy and scriptural spandule in a World Wide Web of a confluence of equality, liberty and fraternity. The teaching methodology in law of occidental and oriental jurisdictions is at war with eunomy of societal subbatarianism of classical and contemporary concussion even in the twenty first century. Primarily, the language of law is the language of peace and tranquility whereunder the co-ordinates of social order and legal order are reconciled, rejuvenated and regimented to establish rule of law, justice, equity and good conscience. The credo, crasis and crassitude of law and legal labyrinth must be galvanized, geminated and gestated under the jural spectrometry in the class-rooms pandered to experientia docet. The students must enjoy intellectual carte blanche over pedantic panache, practical paradoxes and pragmatic polemics pervading in the realm of law. Moreover, vastitudes and vicissitudes of law must be rummaged and tantalized in an ambience of decency, dignity and decorum at petits soins whereby legal ethics are professionalized among the puisne legal luminaries wedded with a gerenda of economic evolutions, geomantic globalization and polymorphous politics of law.
The cosmology of teaching methodology ex facie must encompass the petitio principii and appreciation of the tensions between empirical and normative sciences and relationship thereof with other social sciences et al by reformulating, recasting and reorienting the sublime structures of national and supranational laws beyond geo-centric, socio-political and cultural cleavages. Therefore, teaching philosophy and methodology regime (TMR) in law transcended all citizenships and netizenships while evolving a desideratum of multi-disciplinary and comparative approaches in an age of post-modernism. Thus, teaching methodology of law is an Operating System which has been installed with the softwares of Deliberations, Discussions, Interactions and Participations with unlimited terabytes for emplacing a World Wide Web of civilizational citadel, egalitarian élan and equalitarian emulation beyond divine dictate, ecclesiastical essence and gospel gratification in and around the class-rooms. I understand and perceive the concept of teaching methodology in law as a concept of individual inquisition, collective caviling and paramount primacy wherein Jurocracy of Juricraft, Jurineering of Jurimatrix and Lexicography of Lawyering is an anvil whereupon juridical proclivities are made, wade and laid and so on so forth and pax vobiscum!
Sunday, September 28, 2008
HUMAN RIGHTS EDUCATION IN INDIA: AN AGENDUM HENCEFORTH
Human Rights Education in India: An Agendum Henceforth
By
Dr. Nafees Ahmad*
Aaisha Khan**
Human rights and globalisation go together in terms of their visibility and divinity but in terms of economics these are supremely suffering from the sense of alienation and subjected to economic extravasations, obtuse opportunities and gawky globalisation at national and international level. The theology of globalisation is being executed in such a fashion, which has marginalized the human rights and got them brawled in a state of terra-incognita wherein economic viability, political participation and cozy co-existence among the comity of nation states is not a priority of the so-called moral majority of the unipolar world order. Consequently, human dignity is morphed into challenge for others as perennial parasite, contumate concern and existential atrophy in every geopolitical entity across the globe deviant to equality, liberty and fraternity sanctified by the desideratum of human rights beyond human rights. Therefore, challenges should be churned into opportunities through the gospel of globalisation as it has basically originated from human rights philosophy and has been ordained in the Devine injunctions, which has made entire process congruent to human rights and globalisation. But there are still some pertinent questions, which remain to be answered.
How will future historians regard the history of the twentieth century? It was certainly an age of stark contrast, conflict and contradiction, and possibility of perennial paradox. It is not surprising that it should have been depicted as an “age of extremes”. But how will the twentieth century be remembered? As soon as the question is posed, the contradictions spill out. It was an age of unprecedented violence, of threatened annihilation, and yet, for part of the time, of very substantial peace and stability in some areas of the world and that too deviant to equality, liberty, fraternity and human rights. Although, it was an age that did more than any other to advance the philosophical claims to human rights in an international context, but it also witnessed the most flagrant violations of them in practice. The century saw the creation of hitherto unattainable wealth but ever-wider gaps in its distribution (sic).
Above all, the century was characterized by the greater interconnectedness of events on a global basis while simultaneously being subject to political processes of repression, rupture and disintegration. Thus, it has been a century of globalisation founded upon travesty of justice, pell-mell distribution of natural resources and fragmentation of human rights. Accordingly, a more sensitive and systematic understanding of human rights and impact thereof upon various facets of human existence is imperatively required (sic).
In this gloomy scenario, the need for legal educators to provide adequate and systematic training in human rights law at undergraduate and postgraduate levels has increased significantly. The reasons for this are many such as the provisions of Human Rights in the post 1945 constitutions of many countries including India and the fact that along with several other countries, India is also signatory to the major international human rights instruments.
The importance of understanding of human rights from a national, international and comparative perspective for those involved in the study and practice of law was rightly emphasized by paragraph 9 of the Bangalore Principles:
“It is essential to redress a situation where by reason of traditional legal training which has tended to ignore the international dimension, judges and practicing lawyers are often unaware of the remarkable and comprehensive developments of international human rights norms. For the practical implementation of these views it is desirable to make provision for appropriate courses in universities and colleges, and for lawyers and law enforcement officials; provision in advisory bodies knowledgeable about developments in this field; better dissemination of information to judges, lawyers and law enforcement officials; and meetings for exchanges of relevant information and experiences.”
Thus the national policy on education has laid considerable emphasis on “value education” by highlighting the need to make value education a forceful tool for cultivation of social and moral values. The policy has stated that in our culturally plural society value education should foster universal and eternal norms & values oriented towards the unity and integration of “we, the People of India”. Therefore, the constitutionalism of human rights can only be deciphered, designed and developed by establishing a Centre for human rights law and value education in every educational institution across the country.
In the contemporary India society of unprecedented changes displacing traditional values and ever mounting conflict between tradition and modernity can be reconciled by the human rights discourse through the “internalisation and externalisation of human rights law and value education at all layers of educational strata. Justice J.S. Verma Committee on the Fundamental Duties has rightly emphasized the need of including Fundamental Duties in our study of fundamental rights. The emphasis on duties shall help us in popularising our values. The values of tolerance being the other name of India which stands for pluralism in the right place for such a discourse. A Muslim university can materialize the universality of human rights and its juxtaposition with cultural relativism by reorienting the traditional principles in consonance with modernity in vibrant India.
The human rights law framework creates empowerment through legal tools and institutional intervention help formulate ways to protect he rights of the people. Thus, right-based approaches through Lego-Institutional framework can ensure that governments are constantly evaluated and made accountable to the people and to the international community. Accountability, transparency and good governance have become the core components of a democratic political framework and it can be achieved by adopting a rights-based approach with an agenda of value-education, morals and ethics, which is sustained under the brolly of law and justiciary.
H development of rights-based approaches to human rights law and value education, promotion of ethics and human values add a new and important dimension to the existing studies in human rights discourse which is not alien to India culture and ethos. Law advocates tolerance, cohesion and the promotion of equality among peoples, nations and individuals across the world. It seems disappointing, therefore, that these standards do not apply to the discipline of international human rights law. Moreover, international human rights law has focused primarily on European and Western sources and neglected these from other jurisdictions including India. It has failed to provide and propagate Indian orientation of human rights based on a confluence of multiculturalism, co-existence and diversity with unity.
Ever since the inauguration of the Constitution of India, Dalits disadvantaged and marginalized groups have become more visible, vulnerable and victim of an unwritten policy of social exclusion adopted by the pontiffs of policy in the country. The development agenda of the country does not envisage the inclusion, and allocation of opportunities in the establishment of Special Economic Zones (SEZs), construction of big dams and policies of economic liberalization for the Dalits, minorities, marginalized and disadvantaged sections of the Indian sociomatrix rather process of globalisation has globalized and pains and sufferings of these sections of the society devoid of cultural and religious dichotomies.
Reformulating, recasting and re-orienting the vulnerable groups and so on so forth can reconcile the tensions between universality of human rights and cultural relativism. Moreover, human rights are not just abstract ideals. They are expressed concretely in the specific laws of various countries. Therefore, they cannot be understood apart from a country’s laws and institutions. Differences in national laws reflect the different conceptions of human rights but this does not mean the derogation of international human rights norms.
Consequently, the most appropriate forum for efforts to reconcile divergent moral traditions into common public policy is an educational institution i.e. a university which is the market place of ideas and ideas impart vitality to a society. They dynamism and vibrancy of ideas and their steady ascendancy over competing visions of the good life are bedrock of civilizations. A society in intellectual ferment is fertile ground for progress and advancement, provided the clash of ideas is given free play. Conversely, a society that is bereft of, and represses, new ideas is a society doomed to stagnation. Education and scholarship provide the terrain on which intellectually arid and stagnant societies encounter new worlds of ideas from global culture. Therefore, following are the main objectives proposed to be achieved:
- to sensitise the citizens and students so that the norms and values of human rights law and duty education are realized;
- to develop inter-civilizational dialogue and debate;
- to pursue research studies in peace building, gender equality and stability in a nation-state;
- to promote research studies pertaining to the relationship between Human Rights and Duties Education and International Humanitarian Law;
- to create awareness, conviction and commitment to values for improving the quality of life through the teaching of human rights law;
- to provide the democracy of judicial remedies;
- to organize extramural lectures, seminars, conferences, workshops and orientation programmes for teachers, lawyers, judges, social activists, doctors military personnel and policemen etc.
- to envision the sustainable development models with human face and values;
- to prepare and produce thematic books, handbooks, journal; teaching aid materials, video CD and films relating to values;
- to foster and understand multiculturalism, cultural relativism, pluralism and secularism etc.
Hence, Human Right is harmony, symphony, and verdancy of peace, peace and only of peace. The highest advancement of humankind is human right; the biggest achievement of humankind is human right beyond and beneath the universality of human right. Human pains and pleasures do not have any caste, creed, colour or race or gender or demo-geo-political affiliations. It is, indeed, the human sufferings wherefrom emanate idea called the concept of human right.
Human right is a concept of collective care, individual inquisition, and perennial primary for a civilized survival in any society wedded therewith. Of late, there has been witnessed an hiatus between classical care and contemporary concern for this grand concept called “human right”. Primarily, the concept of human right is the language of peace and tranquillity for establishing peace, prosperity and promotion of human values in the transcendental world. The cosmology of human rights encompasses the national and supranational structures beyond parochial perceptions, primordial pursuits and cultural clearages. Thus, human right is an “operating system” which requires the software’s of peace, equality, fraternity and liberty with unlimited gigabytes for creating a World Wide Web of care, concern, compassion and camaraderie beyond divine dictate ecclesiastical essence and gospel gratification.
Human rights and availability thereof to the citizenry determine the norms and standards of the governance institutions in any geopolitical entity. Human rights are the norms of a knowledge constitutionalisation thereof. Percolated therefrom is a welter of welfare pursuant institutionalized accountability, transparency and good governance in a state of democratic liberalism and the same can be reformulated, re-oriented and re-expounded in an academy of higher educations and learning wherefrom it routes to every nook and corner of the world and lays down a roadmap of peace, progress and prosperity for a nation-state.
LL.M., Ph.D., Senior Lecturer, Deptt. Of Law, A.M.U., Aligarh-202002
B.Sc., LL.B., Advocate, Hon’ble High Court of Ad judicature at Allahabad, UP,
He is at: nafeestarana@gmail.com
By
Dr. Nafees Ahmad*
Aaisha Khan**
Human rights and globalisation go together in terms of their visibility and divinity but in terms of economics these are supremely suffering from the sense of alienation and subjected to economic extravasations, obtuse opportunities and gawky globalisation at national and international level. The theology of globalisation is being executed in such a fashion, which has marginalized the human rights and got them brawled in a state of terra-incognita wherein economic viability, political participation and cozy co-existence among the comity of nation states is not a priority of the so-called moral majority of the unipolar world order. Consequently, human dignity is morphed into challenge for others as perennial parasite, contumate concern and existential atrophy in every geopolitical entity across the globe deviant to equality, liberty and fraternity sanctified by the desideratum of human rights beyond human rights. Therefore, challenges should be churned into opportunities through the gospel of globalisation as it has basically originated from human rights philosophy and has been ordained in the Devine injunctions, which has made entire process congruent to human rights and globalisation. But there are still some pertinent questions, which remain to be answered.
How will future historians regard the history of the twentieth century? It was certainly an age of stark contrast, conflict and contradiction, and possibility of perennial paradox. It is not surprising that it should have been depicted as an “age of extremes”. But how will the twentieth century be remembered? As soon as the question is posed, the contradictions spill out. It was an age of unprecedented violence, of threatened annihilation, and yet, for part of the time, of very substantial peace and stability in some areas of the world and that too deviant to equality, liberty, fraternity and human rights. Although, it was an age that did more than any other to advance the philosophical claims to human rights in an international context, but it also witnessed the most flagrant violations of them in practice. The century saw the creation of hitherto unattainable wealth but ever-wider gaps in its distribution (sic).
Above all, the century was characterized by the greater interconnectedness of events on a global basis while simultaneously being subject to political processes of repression, rupture and disintegration. Thus, it has been a century of globalisation founded upon travesty of justice, pell-mell distribution of natural resources and fragmentation of human rights. Accordingly, a more sensitive and systematic understanding of human rights and impact thereof upon various facets of human existence is imperatively required (sic).
In this gloomy scenario, the need for legal educators to provide adequate and systematic training in human rights law at undergraduate and postgraduate levels has increased significantly. The reasons for this are many such as the provisions of Human Rights in the post 1945 constitutions of many countries including India and the fact that along with several other countries, India is also signatory to the major international human rights instruments.
The importance of understanding of human rights from a national, international and comparative perspective for those involved in the study and practice of law was rightly emphasized by paragraph 9 of the Bangalore Principles:
“It is essential to redress a situation where by reason of traditional legal training which has tended to ignore the international dimension, judges and practicing lawyers are often unaware of the remarkable and comprehensive developments of international human rights norms. For the practical implementation of these views it is desirable to make provision for appropriate courses in universities and colleges, and for lawyers and law enforcement officials; provision in advisory bodies knowledgeable about developments in this field; better dissemination of information to judges, lawyers and law enforcement officials; and meetings for exchanges of relevant information and experiences.”
Thus the national policy on education has laid considerable emphasis on “value education” by highlighting the need to make value education a forceful tool for cultivation of social and moral values. The policy has stated that in our culturally plural society value education should foster universal and eternal norms & values oriented towards the unity and integration of “we, the People of India”. Therefore, the constitutionalism of human rights can only be deciphered, designed and developed by establishing a Centre for human rights law and value education in every educational institution across the country.
In the contemporary India society of unprecedented changes displacing traditional values and ever mounting conflict between tradition and modernity can be reconciled by the human rights discourse through the “internalisation and externalisation of human rights law and value education at all layers of educational strata. Justice J.S. Verma Committee on the Fundamental Duties has rightly emphasized the need of including Fundamental Duties in our study of fundamental rights. The emphasis on duties shall help us in popularising our values. The values of tolerance being the other name of India which stands for pluralism in the right place for such a discourse. A Muslim university can materialize the universality of human rights and its juxtaposition with cultural relativism by reorienting the traditional principles in consonance with modernity in vibrant India.
The human rights law framework creates empowerment through legal tools and institutional intervention help formulate ways to protect he rights of the people. Thus, right-based approaches through Lego-Institutional framework can ensure that governments are constantly evaluated and made accountable to the people and to the international community. Accountability, transparency and good governance have become the core components of a democratic political framework and it can be achieved by adopting a rights-based approach with an agenda of value-education, morals and ethics, which is sustained under the brolly of law and justiciary.
H development of rights-based approaches to human rights law and value education, promotion of ethics and human values add a new and important dimension to the existing studies in human rights discourse which is not alien to India culture and ethos. Law advocates tolerance, cohesion and the promotion of equality among peoples, nations and individuals across the world. It seems disappointing, therefore, that these standards do not apply to the discipline of international human rights law. Moreover, international human rights law has focused primarily on European and Western sources and neglected these from other jurisdictions including India. It has failed to provide and propagate Indian orientation of human rights based on a confluence of multiculturalism, co-existence and diversity with unity.
Ever since the inauguration of the Constitution of India, Dalits disadvantaged and marginalized groups have become more visible, vulnerable and victim of an unwritten policy of social exclusion adopted by the pontiffs of policy in the country. The development agenda of the country does not envisage the inclusion, and allocation of opportunities in the establishment of Special Economic Zones (SEZs), construction of big dams and policies of economic liberalization for the Dalits, minorities, marginalized and disadvantaged sections of the Indian sociomatrix rather process of globalisation has globalized and pains and sufferings of these sections of the society devoid of cultural and religious dichotomies.
Reformulating, recasting and re-orienting the vulnerable groups and so on so forth can reconcile the tensions between universality of human rights and cultural relativism. Moreover, human rights are not just abstract ideals. They are expressed concretely in the specific laws of various countries. Therefore, they cannot be understood apart from a country’s laws and institutions. Differences in national laws reflect the different conceptions of human rights but this does not mean the derogation of international human rights norms.
Consequently, the most appropriate forum for efforts to reconcile divergent moral traditions into common public policy is an educational institution i.e. a university which is the market place of ideas and ideas impart vitality to a society. They dynamism and vibrancy of ideas and their steady ascendancy over competing visions of the good life are bedrock of civilizations. A society in intellectual ferment is fertile ground for progress and advancement, provided the clash of ideas is given free play. Conversely, a society that is bereft of, and represses, new ideas is a society doomed to stagnation. Education and scholarship provide the terrain on which intellectually arid and stagnant societies encounter new worlds of ideas from global culture. Therefore, following are the main objectives proposed to be achieved:
- to sensitise the citizens and students so that the norms and values of human rights law and duty education are realized;
- to develop inter-civilizational dialogue and debate;
- to pursue research studies in peace building, gender equality and stability in a nation-state;
- to promote research studies pertaining to the relationship between Human Rights and Duties Education and International Humanitarian Law;
- to create awareness, conviction and commitment to values for improving the quality of life through the teaching of human rights law;
- to provide the democracy of judicial remedies;
- to organize extramural lectures, seminars, conferences, workshops and orientation programmes for teachers, lawyers, judges, social activists, doctors military personnel and policemen etc.
- to envision the sustainable development models with human face and values;
- to prepare and produce thematic books, handbooks, journal; teaching aid materials, video CD and films relating to values;
- to foster and understand multiculturalism, cultural relativism, pluralism and secularism etc.
Hence, Human Right is harmony, symphony, and verdancy of peace, peace and only of peace. The highest advancement of humankind is human right; the biggest achievement of humankind is human right beyond and beneath the universality of human right. Human pains and pleasures do not have any caste, creed, colour or race or gender or demo-geo-political affiliations. It is, indeed, the human sufferings wherefrom emanate idea called the concept of human right.
Human right is a concept of collective care, individual inquisition, and perennial primary for a civilized survival in any society wedded therewith. Of late, there has been witnessed an hiatus between classical care and contemporary concern for this grand concept called “human right”. Primarily, the concept of human right is the language of peace and tranquillity for establishing peace, prosperity and promotion of human values in the transcendental world. The cosmology of human rights encompasses the national and supranational structures beyond parochial perceptions, primordial pursuits and cultural clearages. Thus, human right is an “operating system” which requires the software’s of peace, equality, fraternity and liberty with unlimited gigabytes for creating a World Wide Web of care, concern, compassion and camaraderie beyond divine dictate ecclesiastical essence and gospel gratification.
Human rights and availability thereof to the citizenry determine the norms and standards of the governance institutions in any geopolitical entity. Human rights are the norms of a knowledge constitutionalisation thereof. Percolated therefrom is a welter of welfare pursuant institutionalized accountability, transparency and good governance in a state of democratic liberalism and the same can be reformulated, re-oriented and re-expounded in an academy of higher educations and learning wherefrom it routes to every nook and corner of the world and lays down a roadmap of peace, progress and prosperity for a nation-state.
LL.M., Ph.D., Senior Lecturer, Deptt. Of Law, A.M.U., Aligarh-202002
B.Sc., LL.B., Advocate, Hon’ble High Court of Ad judicature at Allahabad, UP,
He is at: nafeestarana@gmail.com
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