PaCS 05 CONSTITUTION, LAW AND HUMAN RIGHTS [2 credits] Course Instructor: R K Debbarma r.debbarma@tiss.edu COURSE DESCRIPTION Constitution is widely acknowledged as a necessity for modern governance. In many ways, constitution and law are essential to social change. For the marginalised groups, constitution becomes an important source for safeguarding their rights and guaranteeing them against discrimination. However, there is no direct correlation between democratisation and constitution. In fact, it could be through the constitution that modern polities effectively oppress large sections of the citizenry. Could we measure the role of constitution and law simply as means to safeguard human rights? In that case, how does one understand a law like AFSPA and section 377 of the Indian Constitution vis-a-vis the issue of human rights since sanctioned violence from the state emanate through law and Constitution? What are the ways in which one looks at the intersection between constitution, law and human rights? This course will delve into these questions by looking at constitution from various perspectives. COURSE OBJECTIVES a. To understand the theoretical aspects of the issues of constitution, law and human rights. b. To critically examine those features of the Indian Constitution and law that lead to human rights violations. c. The students will be train to evaluate the various debates on human rights its philosophical foundations, the claim to universality, and the criticisms against it from various perspectives. Leaning Objective At the end of the course you will have basic knowledge about the history and philosophy of constitution. You will be able to critically analyse the relationship between constitution, law and human rights. You will be familiar with contemporary human rights debates. Finally, you will also learn to read texts critically. Modes of Assessment: Group Work 40% Respond papers 60% Group work: You will be divided into group of 4 or 5 and assigned a research topic relevant to the course. Each group will spend about two weeks in researching and documenting published data on that topic. Each group will share your research in a round table conference on dates to be announced in the class.
Respond papers: A respond paper (350 500 words) is not merely a summarisation of the ideas and arguments presented in the readings, but your evaluation of the ideas and arguments made by the author(s). You will submit your respond papers at the end of the designated lecture hours. I will return the respond papers with my comments before the next round of papers are due. You will use these comments to improve on your subsequent respond papers. Grading will commence from second respond papers. These weekly respond papers will finally form one final term paper. Week 1 The first week is dedicated to introduction of the course, grading, term paper and clarifications. [I hour] Week 2 and 3: Constitution possibilities and challenges [4hours] [Constitutionalism is written into the making of the modern state. This unit critically examines the making of the Indian Constitution and the general consensus that considers it to be a secular one] Gary Jaffrey Jacobsohn, An unconstitutional constitution? A comparative perspective, International Journal of Constitutional Law, Vol 4, Issue 3, 2006, 460-487 Pritam Singh, Hindu Bias in India s Secular Constitution: probing flaws in the instruments of governance, Third World Quarterly, Vol. 26, Issue 6, 2005, pp. 909-206 Week 4 and 5: Rule of law and human rights [6hours] [To talk about the rule of law when both national and international laws have failed to provide effective protection is a difficult and challenging task. This unit foregrounds the reality that human rights have been challenged conceptually and politically while exploring the relationship between the rule of law and human rights.] Balakrishnan Rajagopal, The Role of Law in Counter-hegemonic Globalization and Global Legal Pluralism: Lessons from the Narmada Valley Struggle in India, Leiden Journal of International Law, Vol. 18, Issue 3, October 2005, pp. 345-387 Catharine A. Mackinnon, Sex equality under the Constitution of India: Problems, prospects, and personal laws, International Journal of Constitutional Law, Vol 4, Issue 2, 2006, 181-202 Marc Galanter, Law and Caste in Modern India, Asian Survey, Vol. 3, No. 11, November 1963
Week 6 and 7: History and politics of human rights [6hours] [Since the end of the World War II, human rights have become a universal concern. This unit will explore the complicated histories of human rights from the global, universal level to the national level, and also discuss some of the criticisms against the concept of human rights.] Michael Ignatieff, Human Rights as Politics and Idolatory, Princeton, NJ: Princeton University Press, 2001 Mutua, Makau, Human Rights: A Political and Cultural Critique, University of Pennsylvania Press, 2008. Jack Donnelly, Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights, The American Political Science Review, Vol. 76, No. 2, June 1982, pp. 303-316 Week 8 and 9: liberalism, human rights and universality [6hours] [This unit will discuss the role that liberalism as a political philosophy has played in popularising and sustaining human rights discourse. Critics against liberalism argue at the limitations of such an approach since the primary focus has been on codification rather than address the deeper structural problems that global political economic systems generate.] Kate Schick, Beyond Rules: A Critique of the Liberal Human Rights Regime, International Reations, 20, 2006. Chris Brown, Universal human rights: A critique, The International Journal of Human Rights, Vol. 1, No. 2, Summer 1997, pp. 41-65 Ratna Kapur, Human Rights in the 21 st Century: Take a Walk on the Dark Side, Sydney Law Review, Vol. 28,
Josiah A.M. Cobbah, African Values and the Human Rights Debate: An African Perspective, Human Rights Quarterly, Vol. 9, No. 3, August 1987 Week 10 and 11: Individual Conference on your respond papers Week 12 and 13 and 14: Feminism, cultural relativism and human rights [6hrs] [The feminist critique of human rights argues that, in practice those who hold human rights are men and not women. Therefore, gender equality and freedom from discrimination for women is given low priority in the international arena. This unit will explore the criticisms against the claim to universality embedded in the discourse of human rights.] Elizabeth Kolsky, The Body Evidencing the Crime : Rape on Trial in Colonial India, 1860-1947, Gender & History, Vol. 22, Issue 1, April 2010, 109-130 Heiner Bielefeldt, "Western" versus "Islamic" Human Rights Conceptions?: A Critique of Cultural Essentialism in the Discussion on Human Rights, Political Theory, Vol. 28, No. 1, February 2000 J. Oloka-Onyango and Sylvia Tamale, "The Personal Is Political," or Why Women's Rights Are Indeed Human Rights: An African Perspective on International Feminism, Human Rights Quarterly, Vol. 17, No. 4, November 1995 Jacques Ranciere, Who is the Subject of the Rights of Man?, South Atlantic Quarterly, spring/summer 2004, Pratiksha Baxi, Shirin M. Rai and Shaheen Sardar Ali, Legacies of common law: crimes of honour in India and Pakistan, Third World Quarterly, Vol. 27, Issue 7, 2006 Week 15: Revisions and further discussion Other Carl Bridge, Holding India to the Empire: The British Conservative Party and the 1935 constitution, New Delhi: Sterling Publishers, 1986 Lokaneeta, Jinee, Transnational Torture: Law, Violence, and State Power in the United States and India, New York, New York University Press, 2011 Newbigin, Eleanor (2013): The Hindu Family and the Emergence of Modern India: Law, Citizenship and Community (Cambridge: Cambridge University Press) P.G. Robb, The Government of India and Reform: Policies towards Politics and the Constitution 1916-1921, Oxford: Oxford University Press, 1976
Paulina Tambakaki, Human Rights, or Citizenship?, New York: Birkbeck Law Press, 2010 Ranabir Samaddar and Suhit K Sen, eds., Political Transition and Development Imperatives in India, New Delhi and Abingdon: Routledge, 2012 Theodor, Meron, Human rights law-making in the United Nations: A critique of instruments and process, Oxford: Clarendon Press, 1986 Thomas Biolse, Deadliest Enemies: Law and the Making of Race Relations on and off the Rosebud Reservation, University of California press, 2001 Thomas R. Metcalf, Ideologies of the Raj, Cambridge University Press, 1995 Elena Katselli, The rule of law and the role of human rights in contemporary international law, in rob Dickinson, Elena Katselli, Colin Murray and Ole W. Pedersen, eds., Examining Critical Perspectives on Human Rights, Cambridge: Cambridge University Press, 2012, pp. 131-152 Rajeswari Sunder Rajan, The Scandal of the State: Women, Law, and Citizenship in Postcolonial India, Duke University Press, 2003 Mary Frances Berry, Black Resistance White Law: A History of Constitutional Racism in America, New York: Penguin Books, 1994 Slavoj Zizek, Against Human Rights, New Left Review, July-august 2005, V. Spike Peterson, Whose Rights? A Critique of the Givens in Human Rights Discourse, Alternatives: Global, Local, Political, vol. 15, No. 3, Summer 1990, pp. 303-344