O Estado de Direito na Índia

Abstract

The author underscores that the patrimonial liberal Rule of Law (ROL) discourse usually disregards alternative traditions. First, it does not permit any reflection on the normative socialist ROL conceptions. Second, it disregards the very existence of other ROL traditions: for example, the pre-colonial, those shaped by the revolt against the Old Empire, or the nonmimetic contributions by the proud judiciaries in some "developing societies".In this context, the author analyses the distinctiveness of the Indian ROL and argues that it offers revisions of the liberal conceptions of rights. The author adds that the Indian ROL stands normatively not just as a sword against State domination, but also as a shield, empowering a "progressive" state intervention in civil society. Finally, the author introduces some current trends in the constitutional jurisprudence and highlights the leadership of the Supreme Court in the development of an extraordinary form of jurisdiction under the rubric of social action litigation.Original in English. A new discourse?The Rule of Law (as a set of principles and doctrines -hereafter ROL) has a long normative history that privileges it as an inaugural contribution of the Euro American liberal political theory. ROL emerges variously, as a "thin" notion entailing procedural restraints on forms of sovereign power and governmental conduct, which may also authorize Holocaustian practices of politics 1 and as a "thick" conception involving the theories about the "good", "right", and "just". 2The patrimonial liberal ROL discourse organizes amnesia of alternative traditions. It allows not even a meagre reflection on the normative socialist ROL conceptions. It disregards the possibility that other ROL traditions of thought ever existed: for example, the pre-colonial, those shaped by the revolt against the Old Empire, or the non-mimetic contributions by the proud judiciaries in some "developing societies". Likewise, a community of critical historians has demonstrated that in the countries of origin, both the "thin" and "thick" versions for long stretches of history remained consistent with violent social exclusion; the institutional histories of ROL in the metropolis for a long while remained signatures of domination by men over women, by the owners of means of production over the possessors of labour-power, and by persecution of religious, cultural and civilizational minorities. Students of colonialism/imperialism have stressed that the ROL values remained wholly a "whites-only" affair. 4 The triumphalist celebration of ROL as an "unqualified human good" even goes so far as to

Religion And the Making of National Law; Literature Review

“…India: India has a secular legal system, with a constitution that recognizes religious freedom and protects the rights of citizens to practice and practice the religion of their choice. (Baxi, U. 2007).…”

Injustiça ambiental e saúde no Brasil: o Mapa de Conflitos

“…Como bem analisa o indiano Baxi (2007), o EDD [estado democrático de direito] na metrópole foi durante muito tempo rubrica da dominação dos homens sobre as mulheres, dos donos dos meios de produção sobre os possuidores da força de trabalho, e da perseguição de minorias religiosas, culturais e civilizacionais (...). Até mesmo as histórias insurgentes que geraram um reconhecimento universal dos direitos humanos contemporâneos são reconhecidas erroneamente como uma imitação histórico-mundial do EDD euroamericano!…”