11.) Is Hinduism Devoid of a Concept of Human Rights?

It has been claimed that the Hindu texts did not develop a concept of “human rights” but rather of “caste rights.”[1] Is then Hinduism devoid of a concept of human rights?

One source of this suspicion could be that Hinduism might seem to lack the concept of common humanity itself, on account of the caste system, especially if one insists that castes originated separately to begin with. However, there are many accounts of “the formation of castes [that] are silent on the subject of any separate origination of castes”.[2] For instance, in some texts “men are said to be the offspring of Vivasvat; in another his son Manu is said to be the progenitor; whilst in a third they are said to be descended from a female of the same name”.[3] A passage clearly states that the Brāhmaṇas, Katriyas, Vaiśyas and Śūdras—all proceed from Manu, although the exact manner in which this happened is somewhat obscure.[4]

It is clear therefore that caste distinctions do not necessarily obscure common humanity in mythical Hinduism. In philosophical Hinduism the recognition is even clearer. The Sāṅkhya Kārikā (53) speaks of an eightfold divinity but a single humanity – manuṣyaś caikavidhaḥ.[5]

The next question to be faced is: if Hinduism does possess a concept of common humanity, does it also possess a concept of human rights? Human rights, as a concept in its modern formulation, originated as an attempt to define the rights of human beings over against the state. Does then Hinduism conceptualize human rights in the face of such a situation?

A passage in the Bṛhadāraṇyaka Upaniṣad seems to address such a situation. The context in which it occurs deals with the successive creation of the varṇas; the creation of each varṇa is necessitated by the fact that “he did not flourish” by itself. Even after all the four varṇas had been created such flourishing did not occur. Then the text says:

He was not yet developed. He created still further a better form, law (dharma). This is the power (kṣatra) of the Kshatriya class (kṣatra), viz. Law. Therefore there is nothing higher than law. So a weak man controls a strong man by law, just as if by a king.[6]

The point comes into clear focus in the commentary of Śaṅkara, who raises the question: why did it not develop? He answers: on account of the fear of arbitrary conduct by the state (kṣatrasyāniyatāśaṅkayā). The concept of Dharma here clearly has the connotation of rights; this is also confirmed by the Nāyakopaniṣad.[7]


[1] Klaus K. Klostermaier, A Survey of Hinduism (second edition) (Albany, NY: State University of New York Press, 1994) p. 343.

[2] J. Muir, Original Sanskrit Texts (Delhi: Oriental Publishers, 1972) Part 1, p. 22.

[3] Ibid., p. 160.

[4] Ibid., p. 177. For a clearer passage see p. 126.

[5] Ibid., p. 158, note 285.

[6] Robert Ernest Hume, The Thirteen Principal Upaniads (London: Oxford University Press, 1968) p. 84.

[7] K.B. Panda, Sanātan Dharma and Law (Cuttack: Goswami Press, n.d.) p. 19.

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3 Responses to “11.) Is Hinduism Devoid of a Concept of Human Rights?”

  1. senthil Says:

    Sir.. Based on my observation, i feel, hinduism is more concerned with Human responsibilities towards the society. There are many areas where the social rights is given priority over the individual rights. But, that has been twisted and conspired to defame our religion and society.

    What better is there than the example of manu to sacrifice his own life for the loss of calf. (I read it in my Tamil Text book).

  2. om Says:

    sir
    as a law student of BHU i observe that– “VASUDHAIV KUTUMBAKAM” i.e. WHOLE EARTH IS A FAMILY AND I M A MEMBER OF THAT FAMILY . this was/is of astream of our indian philosophy, and when a person goes through the entire philosophy of india then…… “BAHUJAN HITAY,BAHUJAN SUKHAY”….

  3. yogesh saxena Says:

    “An eye for an eye” is arguably the most misunderstood Jewish commandment. Most
    condemn it as too harsh, some praise it as just, but few cared to actually read
    it. This commandment applies to the narrow class of situations only rather than
    to all crimes.
    It is indeed odd to imagine that ancient Hebrews diligently pulled out a tooth
    of someone who kicked out a tooth. Realizing the impracticality of such strictly
    defined reciprocity, sages reinterpreted it as monetary compensation: a tooth’
    value for a tooth kicked out. That, too, ran into practical difficulties: what
    is a tooth’s value? Obviously, the value of the last tooth is greater than of
    the 32nd tooth. A lost tooth doesn’t diminish one’s “reference value” at slave
    market. A bruise, which is temporary, doesn’t affect one’s permanent value at
    all, and so the sages declared a bruise value to be a price someone would ask to
    willingly suffer such bruise. That definition, too, is unworkable, as a rich man
    and a poor one would value the bruise widely differently, thus defying the
    common legal guidelines. Besides all of that, there is no hint in the Torah that
    “an eye for an eye” should be understood figuratively, as some sort of
    compensation.

    The difficulty evaporates when we realize that “an eye for an eye” principle
    only applies to exemplary punishment in the very specific situation. In such
    rare cases, reciprocal corporal punishment could be feasibly carried out.

    The lawgiver makes his intention known by starting the Laws section (Exodus 21)
    with rules about Hebrew slaves. Now, that’s exceedingly strange. Judaism is
    about laws and justice, and the Laws section is a centerpiece of the Book of
    Exodus, literally the central (middle) chapter of the scroll. We would expect
    the laws to start with major themes, such as life and murder. But eleven opening
    verses of the Laws detail the rights of Hebrew slaves.

    Those rights were exceedingly generous even by the nineteenth century C.E.
    norms, let alone the ancient world’s habits. Slavery of Hebrews was limited to
    six years. Slave girls were to be treated on par with wives.

    What’s the point? In the opening lines, the Laws immediately shock the reader
    into the entirely different moral reality. The Hebrews must isolate themselves
    from the old habits: from barbarity of neighboring tribes, brutality of Egypt,
    even from the inbuilt human egoism. At this point, Hebrews are commanded to
    abandon the natural human behavior of exploiting their compatriots to the utmost
    extent feasible. They are told to care about the most vulnerable members of
    their society, Hebrew slaves.

    It is not that caring of Hebrew slaves is the major civil law, but it relates
    the major legal principle, “Love your [Hebrew] neighbor as thyself.” That
    principle is not merely a moral piece, but a fully actionable law.

    The Laws section then proceeds with common legal issues.

    Murder of a man is generally punishable with execution (Exodus 21:12). In case
    of premeditated murder, there can be no excuses whatsoever (21:14); the intent
    to murder a fellow Jew undermines the society’s very basis.

    There is a legal innovation: manslaughter, voluntary or otherwise, is not
    punishable; the offender can find refuge among Levites and later in specially
    designated towns. The only criterion is whether the offender waited for his
    victim to kill. In Jewish law, generally only actions matter rather than
    intentions. Why this case is different, why one murder is different from
    another? Even the nicer modern legal system punishes for manslaughter. The
    reason is to be seen in the opening verses on the treatment of Hebrew slaves. In
    such a compassionate society, unpremeditated murder must be presumed
    unintentional, purely an accident which does not call for punishment.

    The murderer fled to a place of refuge, but what about his clan or immediate
    family? In barbarian societies, they would be targeted for vendetta. Jewish law,
    however, contains no hint of preventing vendetta, suggesting that it was
    non-existent in the society. Absence of collective (clan-level) or extrajudicial
    retribution testifies to the Hebrews’ high morality and law obedience. The law
    was not idealistic, but successfully converted the throng into the perfect
    society.

    Contrary to the common misunderstanding of “an eye for an eye,” bruises
    incurred in fights among men are not subject to retribution, but merely
    compensated. Exodus 21:18-19, “And when [the] men would squabble, and the man
    will hit his neighbor with stone or fist, and he will not die but lie in bed: If
    he rise up and walk outside [his house] on a support, then cleansed [from the
    guilt of murder] will be the one who hit, only gives [for] his idleness and
    shall treat, treat.”

    The period of acceptable illness is any. The lawgiver didn’t forget specifying
    the period, as it is explicitly mentioned in the following verse on beating
    slaves.

    A good reason for not treating a fighting injury as a criminal offense is that
    both sides are guilty: they equally participated in fight. So there is no
    punishment per se, but merely compensation of lost earnings and medical
    expenses.

    The law is careful to clarify that any squabble suffices to exonerate the
    offender. There need not be a fight, but merely a squabble.

    Now we know the punishment for murder (execution) and any injuries incurred in
    a squabble (compensation). What about the injuries inflicted without a fight: by
    surprising one’s opponent or where one man is clearly stronger than another? In
    such situations, murder is a more likely outcome. Or, we may apply a fortiori
    argument: if the injuries incurred in a squabble (where both men are equally
    involved) are compensated, then all the more the injuries incurred in a surprise
    attack should be compensated. Fully conforming to the liberal ideal, Hebrew law
    discusses only generic situations; in contrast, modern law is concerned with
    specifics, thus creates a heap of highly specific legislation and, consequently,
    loopholes.

    Next, the law deals with the most tender and valuable members of Hebrew
    society: pregnant Jewish women. Exodus 21:22, “If [the] men would fight, and hit
    a pregnant woman, and the fetuses come out, and there will be no harm [to the
    woman], then he will be fined, fined as the woman’s husband imposes on him, and
    gives as they lay [on him].” Contrary to anti-abortionists’ views Hebrew law
    does not treat fetus as a human being: killing a fetus is punishable with fine
    only, it is not a criminal offense such as killing a human being.

    The fine is not specified here, and whether it is large or small, is a matter
    of conjecture. On one hand, the law carefully specifies the double and quadruple
    fines, and therefore leaving this fine unspecified hints at it being
    insubstantial. On other hand, the law uses strong language: “fined, fined” and
    “lay on him.” My feeling is that the first option is true, and the fine is
    small, thus not subject to specification; strong language refers to sureness of
    the fine rather than its amount.

    And here the Hebrew criminal law culminates. Exodus 21:23-25: “And if there
    would be harm [to the woman], then give a soul for a soul, an eye for an eye,
    etc.” The harshest retaliation is prescribed only for harming pregnant women.

    The legal status of women in Hebrew society vastly exceeded the men’s. Maiming
    a man is subject to fine only, but similar harm to woman involves harsh
    retaliation. The legislator recognized that women are inherently more vulnerable
    than men and need stronger protection.

    The law teaches us that men cannot claim weakness: it is their responsibility
    to be on par with any attacker, as they will not be awarded any compensation
    beyond the costs of treatment and idleness. Women are not expected to counter
    the attackers except by screaming (and surely must not serve in the army). The
    society, therefore, punishes even the innocent harm to women severely. The law
    enjoins the women from participating in men’s fights: a woman who indecently
    touches a man involved in brawl with her husband, is punished.

    What about the non-pregnant women? Young females are not expected to come close
    to men; only married women might defend their husbands. Old females were
    uncommon in antiquity. So the generic case was a pregnant woman.

    The legislator makes sure that his intention of protecting the weak is clear by
    the following verses, “And if a man would strike his slave or concubine in an
    eye and destroys it, he will set him free for his eye. And if he would kick out
    a tooth of his slave or concubine, he will set him free for a tooth.” How
    unusual is that, freeing a slave for merely a tooth! In that era and for three
    millennia afterwards, masters could kill their slaves with impunity.

    This rule is a Jewish version of the affirmative action. According to the
    tradition, the rule does not apply to Hebrew slaves. Thus, Hebrew concubines are
    treated on par with wives (Exodus 21:7-11). Such a concubine should be set free
    even if her master/husband diminished her allowance of clothes. As she has her
    own clothes, she is a subject of property rights, and not a rightless slave.
    Similarly, Hebrew male slave owns his wife and children (Exodus 21:3), and so is
    not a slave in the regular sense. Hebrew slaves are set free at the end of
    six-year periods, so in effect they are temporary laborers rather than slaves.

    In the case of foreign slaves, their masters own their bodies, but Hebrew
    slaves possess property rights: if they own their wives, then all the more they
    own their own bodies. Any injury done to a Hebrew slave’s body should be
    compensated like to free men.
    The legislator here solved a curious puzzle: since foreign slaves are their
    masters’ property, a master cannot compensate his slave for injury like he would
    compensate a free person. Sort of fining oneself for breaking one’s own
    instrument. That paradox surfaced in Exodus 21:20-21: murder of a slave is a
    punishable offense, but any other harm is not punishable as slave’s body is “his
    master’s silver.” Freeing injured slaves is both ethical, instructive (to
    slave-owners), and the only logical way to enforce justice while respecting the
    property rights.

    Here is the affirmative action: a Hebrew slave is only compensated for his eye
    or tooth, but foreign slave is released for the similar injury. The master is,
    in effect, fined by the tooth’ cost and the entire slave’ cost, respectively.
    Therefore the fine for harming the rightless, defenseless foreign slave is much
    larger than for similarly injuring a Hebrew slave.

    No system of justice accounts for all the possible circumstances. Murdering a
    slave is a criminal offense (Exodus 21:20), injuring him permanently is a civil
    offense (21:26-27), but what about the situation when the slave died a
    considerable time after the beatings? Being dead, he cannot be released on the
    account of injuries, as Exodus 21:26-27 prescribes. At the same time, he was not
    exactly murdered, as he did live for considerable time afterwards; perhaps the
    blows were not lethal but his treatment was wrong? Even in the modern courts,
    which have the benefit of autopsy and other types of expert analysis, there is
    often no clear-cut answer. And so the legislator sighs, “And if he lives for a
    day or two, he should not be avenged, as he is [his master’s] silver.”

    Note that the great kindness was prescribed not to the weak in general, but
    only to loyal (wives) or submissive (slaves). Nothing in the Hebrew law implies
    kindness or even restraint to enemies, but only to subjugated enemies.

    The law equates hitting (21:15) and abasing (17) one’s parents; both actions
    are punishable with death. There is no issue about murdering them: such crime is
    covered by generic rule of executing murderers. The law is a direct consequence
    of, “You shall respect your father and your mother” in the Ten Commandments.
    Rabbis effectively abrogated a similar law about unruly child by demanding
    unrealistically that both father and mother accuse him in the same voice tone.
    In the law, however, abasing any parent is a capital offense, no other evidence
    is required. The law does not sentence merely for a heated argument: only the
    one [continuously] abasing his parents is liable to death. How do we know it is
    a crime to abase any parent rather than both of them, for it is said, “his
    father and his mother”? By comparing this law with, “And he who is hitting his
    father and his mother, shall die by execution” (21:15): obviously, it is a crime
    to hit any parent rather than both of them.

    Why so harsh a punishment? It’s not because of primitive paternalistic
    concerns; such concerns would justify execution for insulting one’s father (head
    of the clan) but not mother. The law is meant to strengthen the society by
    strengthening family. The law emphasizes family in the modern sense rather than
    clan. By making it unthinkable to abase mothers, the law forced Hebrews to leap
    into the mutually respectful society.

    Now we see that Jewish law prescribes different levels of retaliation: mild for
    the offenses between men, harsh tit-for-tat for attacks on women,
    hyper-compassionate for wounding slaves, and exceedingly cruel for offending
    parents. What about the other nations? The Torah deals with two classes of the
    offending nations. One is Amalek: those who harassed the Jews; such nations must
    be exterminated even in the remotest generations for their past crimes, probably
    on the presumption that national character doesn’t change and children would
    readily repeat their parents’ sins if given an occasion.

    The second class is the nations which settled the Promised Land before Jews;
    such nations would always remember that the land was theirs, will consider the
    Jews occupiers, and hate us. Unlike Amalek, they should not be wiped out as they
    committed no crime against Jews, but rightfully defended themselves against
    aggression. Jews must evict the core inhabitants (Exodus 23:31), destroy their
    places of worship (23:24), and God will efface them (23:23).

    The raw justice mercilessly extirpates the offenders so that law-abiding Jews
    can live comfortable lives. Jewish criminal law is unforgiving: neither a
    victim, nor the society can forgive, but the offender must be punished severely.
    Forgiveness paves the way to repeated crimes.

    Leviticus 24:19-20 suggests that Jews originally adhered to across-the-border
    “an eye for an eye” and that rule was later softened to apply to pregnant women
    only. Jews, themselves recently slaves in Egypt, hardly acquired Jewish slaves
    already in the Sinai. The subsequent verses deal with a settled society with
    houses, pastures, holes on the roads, and so on. Whatever the legislative
    sequence, at some point Jews were given a law that presumed goodwill among
    neighbors, protected the weak, and severely punished the wicked.

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