Welcome to Prout Gems

Lets look at culture ...

Progressive thinking persons should create dynamic political policies in
this regard and the following articles can help to achieve this.

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PROTECTING INDIGENOUS PEOPLES' FOLKLORE THROUGH COPYRIGHT LAW

Dharmadeva

While written in 1994 (with some legal changes since - albeit
insignificant for the substance of the discussion), this essay continues
to point out the need for radical reform in this area.

Folklore reflects a people's culture. It is expressed through music,
dance, drama, craft, sculpture, painting, literature and other means of
creativity which generally require little dependence on high technology.
It tends to be passed on from generation to generation within a
community from memory, by word of mouth, or visually. The particular
community to which the folklore is recognized as belonging is both its
conveyer and user and so works of folklore are easily absorbed into the
community's culture and social life. In this respect folklore is part of
the collective consciousness of a culture. It is not just a static
replication of the past - but rather a dynamic and living entity which
evolves with the culture.

If the cultural dynamism of that collective consciousness is destroyed
then the whole community's backbone and collective sentiment is also
shattered. Also, forces outside the community may denigrate the
practical use and social value of its folklore which has been intimately
crafted for particular ceremonies or other forms of group participation
and which is related to a continuum of events and circumstances within
the community.

This onslaught has already happened in varying degrees to many
indigenous cultures around the world. The onslaught of pseudo-culture or
materialistic 'cultural' values through colonization and now
globalization of 'culture' by mass advertising of materialistic values
and products without considering the effect on community cohesiveness,
ecological systems or mental and spiritual expansion of the people
testifies to this. Indeed, as part of this global pseudo-culture and
psycho-economic exploitation many works of folklore are seen as
collector's items and as forms of material wealth rather than
expressions of indigenous people's aspirations and communal heritage.

Misappropriation of works of folklore

However, it is not only physical things that have been or are taken away
as collector's items from the cultural heritage of indigenous societies
such as the Australian Aborigines, the Maori of New Zealand and Indian
tribes in the USA and Canada. Many expressions of folklore, which are
transient in form or difficult to obtain because they are considered
sacred, but nevertheless are lasting in a social sense because of their
integral richness and importance in collective and individual life, are
also under attack through commercialization and cheap imitations.

Examples of this include printing sacred or traditional designs on
T-shirts without the indigenous culture's permission, popularizing songs
or dances for tourist attraction and re-enacting ceremonies out of
context in the name of tourism. Even if some of these may not
necessarily be considered wrong, nevertheless, proper consideration
should be given to the 'owners' of the culture from which the creative
works have sprung. And to go one step further, control of the use of
those cultural works may need to be legally vested in the tribe or other
indigenous unit from which they derive in order to ensure that the
sanctity and moral rights attached to the works remain intact. This
would also help considerably in preserving the language, literature and
spiritual aspirations of the people which are often so intertwined with
their folklore. 

In nearly all countries of the world today, creative expressions or
works are protected by some form of copyright laws. However, modern
copyright laws still do not give sufficient scope for the protection of
works of folklore from exploitation - particularly indigenous folklore.
The reasons for this are primarily that the age-old character of many
works of folklore and long history of indigenous cultures usually means
that the creators of folklore are anonymous and this is also linked to
the communal ownership of folklore compared to individual ownership.
Further, the usual length of copyright protection is the lifetime of the
author or creator plus 50 to 60 years thereafter. The challenge for
progressive minded legislators is to provide a legal regime that gives
the required form of protection for indigenous peoples folklore. This
cannot be done without taking into account the community ownership of
works of folklore.

Collective ownership of indigenous peoples' folklore

The close identification of indigenous folklore with community life has
as its corollary the notion of community control of intellectual and
creative works so that to impart total control to the individual
creators of these works is seen as undermining part of the foundations
of that community. This means that an individual's creative work attains
a place and is attributed with some meaning within the indigenous
culture when it is somehow co-extensive with the performance of communal
obligations and adherence to communal requirements. 

As a result, the creative expression of an individual or group of
individuals is considered to be an expression and product of and for the
community as a whole. This is particularly so where current works are
derived from older works whose original creation cannot be ascribed to
any definite persons. For newly created or recent creative works this
situation gives rise to ownership rights within indigenous cultures
which are at odds with Western legal concepts such as absolute
individual ownership and freedom of alienability of property. Western
concepts of individual creation and individual ownership reflected in
copyright law through such exclusive rights as reproduction and
adaptation, publishing and recording, performing, and broadcasting
rights do not necessarily hold up for indigenous peoples. 

For indigenous peoples it is the aesthetic, social and cultural elements
within a creative work that are determinative of its value which has to
do with the sentiments and emotions attached to the work and its use and
enjoyment. The emphasis is on a spiritual synthesis with the community
rather than materialistic privatization of rights. This construct of
value represents a communal 'moral right' or moral concern with the work
and surpasses whatever economic advantages can be gained from the work
by its sale or disposal to others. A system of legal protection for
indigenous folklore has to recognize this fact if it is to be effective.

This, however, should not deny that within indigenous cultures the value
of things may, where occasion calls for it, also be expressed in terms
of a potential exchange value. With the availability of contemporary and
more efficient technology for making creative works the potential for an
exchange value does become an important factor when considering how to
legally protect the intellectual property of indigenous peoples. 

Distribution of rights within indigenous cultures

It would be useless to develop or impose a legal or protective regime
which has nothing to do with customary rights of ownership of creative
works by indigenous communities. The best system of protection should be
based on one that already has some inherent recognition. Within
Australian Aboriginal society, for example, rights of ownership of
creative works are distributed within different groups usually along the
lines that ownership of various works, designs or imagery is vested in a
clan and the right to use a design or image or to make and sell a work
or create a facet of a work for various purposes is vested in certain
members of that clan. These rights can be inherited or gained by
reputation. 

Also in New Zealand, in Maori society the use of property including
cultural and creative works has traditionally been managed on a
differentiated basis so that control and use is distributed over several
levels. This ranges from a chief (ariki) who is considered as the
guardian of tribal (iwi) interests, followed by minor chiefs acting as
'custodian trustees' within sub-tribes (hapu) in relation to various
subordinate and collective affairs, and then extended family (whanau)
and individual property rights. Individual rights do exist but are
qualified by an over-sight of the community to use property to serve
wider needs. The defined bundle of privileges and obligations that
exists represents a form of socialisation of wealth. The system holds
together because of community social bonding and the imposition of
restrictions (eg through concepts such as 'sacredness' or tapu prevalent
in Maori society) which govern how certain works can be used for
different purposes or ceremonial occasions and maintain the sanctity of
the works.

Limitations of copyright law - originality and time limits

In contrast, today's copyright law is based on the premise that works
originate from an author's own judgment, skill or labour. Individually
or jointly vested rights (in proportionate shares) enable copyright
owners to license or assign their intellectual property to others and
thereby obtain some economic remuneration from the copyrighted work.
This is different to indigenous peoples customary claims to intellectual
property which are in substance those of the tribal community (without
any tracing as to proportions). The modern copyright does, however,
provide an incentive for creators to produce further works.

But a problem posed by the established assumptions of individual and
exclusive rights under copyright law is that it is possible for an
individual indigenous artist's work to be protectible under copyright
legislation as that artist's own intellectual property even if made in
an indigenous setting. The artist is the author of the work and all that
is required from the artist to gain protection under copyright laws is a
minimal amount of originality. However, the customary law is that the
intellectual property rights to the work are non-exclusive communal
property. In this respect conventional copyright law diverges
substantially from the customs and practices of indigenous cultures.

Conversely, it is possible that some works by an individual indigenous
artist, such as simple paintings or those drawn from or imitating
pre-existing traditions, might not be regarded as original works under
copyright law. For example, the emblems and designs used may have
existed in a tribe for thousands of years and been handed down over the
centuries. In this respect the work may have no copyright for the artist
which also means that there is no legal protection for the tribe.

In such cases the customary interests of a tribe may come into conflict
with the copyright law. This is especially so where there is a tribal
assertion that permission must be obtained by others to use a certain
design, imagery or concept such as, say, a specific style of dot
painting common to Australian Aborigines. One of the reasons for such
permission is to ensure that the cultural integrity of similar already
existing works is not denigrated or misrepresented. This approach is not
easily compatible with that of individual creativity and the free flow
of ideas under copyright law.

Limitations of copyright law - fixation in material form

An unsatisfactory situation which has arisen in Australia concerning the
cultural integrity of folklore is where prints on consumer items such as
tea-towels, wall hangings, postcards and other souvenirs which are
merely adaptations of traditional and possibly sacred pieces of
Aboriginal artwork or other cultural imagery are sold to the public
without permission and which do not fall within the term of copyright
protection because of lapse of time (eg ancient rock art) or there is no
identifiable creator. Other works not in a material form such as native
dances, music and lyrics have also been known to be performed in the
wrong context without emphasis on their inherent cultural or spiritual
meaning, especially where the objective is to rake in the tourist dollar
under the demands of popular marketing. Verbatim note taking of myths
and legends is also a problem in that the notetaker may attempt to
become the owner of the copyright in the myths and legends when it
should be the person who recited the myths or legends as a
representative of their tribe. 

Many works of folklore do not always have a fixed material or tangible
form but are still capable of remaining relatively unchanged and
well-known through the ages. Within indigenous cultures a particular
work or expression often only exists for a performance or an occasion,
but even then it still has a transient type of structural arrangement or
formation which continues and can be revived for subsequent performances
or occasions in a way very similar to how it was expressed previously.
For example, it may be drawn, sung, created musically, performed, danced
or recited in a way it has been known from time immemorial or adapted
accordingly, and then effaced or destroyed while not being permanently
retained or captured by some technological means of recording. 

Therefore, the work of folklore has some known configuration, (even if
somewhat variable in expression) and does exist in the collective
consciousness of the community to which the folklore belongs. In this
sense it is stored in that collective consciousness. This concept of
'storage' or 'fixation' is very different to that under copyright law
which requires that the work must be made in such a way that it is
reduced to writing or to some other material form in order to obtain
legal protection. So while a work of folklore may often not be in a
permanent form it is clearly more than an idea. It is an actual artform
having cultural significance or historical value worthy of both tangible
and intangible preservation. 

A system of legal protection also has to recognise that the work may not
have been fixed in a material form simply because the particular culture
places no predominant importance on such fixation. This does not mean
that the culture considers the work to be unimportant. Indeed, the work
could be so important or sacred that it should not be fixed in a
permanent form capable of easy material reproduction or public viewing.
The law of copyright should make provision for such worthwhile
differences in cultural perceptions and practices and not allow for loss
of protection in these situations. In sum, there should be scope for
works of folklore not fixed in a material form to be protected. 

The equitable interface between customary law and copyright law

In many respects the limitations of copyright law in relation to
indigenous peoples folklore exist and persist because of the law's
difficulty in dealing with communal ownership. However, progressive
judicial minds have begun to recognise that established equitable
principles should be capable of being applied to copyright law and
asserted by indigenous groups to enable them to gain some effective
control over creative works which they consider to be communally owned
even though the work's tangible creation is by individual authors or
artists. 

Where, as under Australian Aboriginal customary law, an artist is
permitted by the tribe to depict certain designs for a particular
purpose it is commonly recognised that the tribe is the custodial owner
of the rights in the design and the finished product. However, the tribe
does not have an actual legal interest in the resulting copyright of the
work produced by the individual artist. This can only arise pursuant to
a written assignment of copyright from the individual owner to the
tribal 'owners' in accordance with the copyright legislation which, at
present, seldom happens. Nevertheless, Australian courts have begun to
recognise that the tribal 'owners' can have an 'equitable interest' in
the copyright of a work and that this equitable interest is vested in
the members of the tribe(1). This will give the tribe a right to permit
or restrain by injunction the further reproduction, adaptation or other
redepiction of the work.

Where sacred or secret ideas, motifs and traditions are conveyed in
confidence by a tribe to another person, Australian courts have also
intervened through the law of breach of confidence to prevent that
person putting them in the public domain(2) and thereby restraining the
publisher from selling a book revealing tribal secrets of deep religious
and spiritual significance to Aboriginal persons on the basis that their
revelation could give rise to serious damage in the form of disruption
of Aboriginal culture and society. Such rights or privileges vested in
the tribe are essential to stop any debasement of a work for commercial
gain. 

Similarly, in New Zealand, Article the Second of the Treaty of Waitangi
of 1840 recognises Maori customary rights. The English version of this
Article states that the Crown confirms and guarantees to the Maori "full
exclusive and undisturbed possession of their Lands and Estates Forests
Fisheries and other properties which they may collectively and
individually possess". In the Maori text of the Treaty of Waitangi the
word "taonga" is used in substitution for the words "other properties".
Taonga when translated means 'treasures'. New Zealand courts have been
willing to assert that Maori language is one such treasure that requires
protection(3). Obviously if language is a cultural treasure worthy of
protection, then other creative treasures including folklore must also
be protected under the Treaty in favour of the indigenous people. 

A legislative regime for folklore recognising indigenous rights

These developments also show that the legal conceptions of indigenous
peoples, though differently developed, should not be considered as any
less precise than those of the English common law so widely adopted by
many countries of the world. In line with the evolving nature of
folklore, it makes sense that the ongoing observance of customary rights
can also be framed in a modernised form. In this regard, it is possible
that both indigenous and Western conceptions in relation to intellectual
property can be utilised to frame an effective legislative regime for
the protection of folklore. This can be achieved by recognising those
rights which are integral to the indigenous culture, rational and based
on human welfare, and which have been continually observed before and
after settlement of indigenous lands by Europeans. Such rights should be
capable of being asserted outside the indigenous community, even if not
alienable outside the indigenous system. 

To achieve this a discretion can be vested in the indigenous culture,
through various tribal structures, as to how it wishes to reasonably
control the dissemination, reproduction or public disclosure of its own
folklore (particularly its sacred aspects). Where the use is for
education or as an aid in creating other original literary, dramatic,
musical or artistic works this should be regarded as a fair dealing
which should not be unreasonably denied. 

Protection of indigenous folklore therefore requires a consideration of
the concept of community ownership of works and the management of rights
associated with those works in accordance with the customs of the
particular indigenous culture. This would enable greater indigenous
control of folklore and ensure that its commercialisation does not take
place in the wrong context so as to result in indigenous knowledge and
creativity being seen merely as a commodity with the folklore loosing
its primary role of strengthening the indigenous culture. Only when
indigenous folklore is strengthened so that it is no longer, as in some
countries, in a state of extreme fragility can its secondary commercial
or entrepreneurial potential be appropriately utilized or fairly
disseminated within its true cultural parameters. 

Moral rights - protection by droit moral

The basis of a system of legal protection is that it should encourage
indigenous peoples' expectations of respect for their creative works,
particularly from those outside the indigenous culture. Accordingly,
folklore should be legally protected from debasement, distortion and
consequent loss of cultural integrity due to inappropriate uses which
would be offensive to the community from which it originates or
prejudicial to the artist's or tribe's honour or reputation. 

Copyright law, if taken to be a purely economic instrument, would not be
a sensitive enough tool to deal effectively with the management of many
works of folklore considered to be spiritually significant. In order for
indigenous peoples not to loose their power to protect their cultural
heritage and their ability to supervise the commercial by-products of
their culture it is necessary to have a mechanism which helps retain the
integrity of original works of folklore. If there is no such legal
protection, then folklore traditions run the risk of becoming fixed in
society's memory devoid of their original context. This would inhibit
the creative evolution of that folklore and the spiritual sentiment it
can give to society. 

Moral rights or droit moral give that legal ability to ensure that the
integrity of a work when it is used, performed or displayed is
maintained. In the Western context, moral rights originated in Europe
and are associated with a moral concern of the author with that author's
work. Moral rights recognise the personal connection a creator has with
the work. Progressive legislators should extend this concept to the
tribal connection that members of an indigenous community have to a
work. In the context of countries with indigenous cultures the law
should give recognition to the communal nature of works of folklore by
allowing for the enforcement of associated 'communal moral rights'. The
creation of moral rights attaching to a tribe can then sit alongside the
individual copyright and moral rights of an artist. 

Moral rights generally comprise 3 types of rights which are useful in
protecting folklore. These rights being the power to control the
publication or dissemination of a work (including its alteration and
withdrawal from the public), the right to have the artist's or tribe's
name associated with the work, and the right to prevent misuse,
mutilation or distortion of a work. A communal moral rights mechanism
extending indefinitely would be appropriate in order to ensure that
sufficient control of works of folklore remain with their indigenous
custodians and such rights would apply when a work is displayed,
reproduced, performed, used or even transferred. Such moral rights would
vest permanently with the tribe and cannot be transferred. This would
give the work legal protection from the onslaughts of pseudo-culture and
protect its inner meaning from exploitation.

Protection by domaine publique payant

An extension of economic rights called domaine publique payant is also
suitable for the protection and promotion of folklore. This would
require commercial users of folklore or unprotected materials that are
not subject to copyright, because the work has not been reduced to
writing or some other material form, to still pay for the use. The
moneys collected should be used to further public rather than private
interests by being distributed to artists or organisations concerned
with the arts. This can include indigenous tribes and peoples. In this
way money can be used for the development of folklore especially if the
system of distribution is in accordance with regulations or schemes
reflecting tribal or aboriginal rights, customary entitlements and
traditions.

The need for a domaine publique payant system for folklore arises
because this material lends itself more easily to use and exchange
through the market place as it is not subject to any authorisation and
the charging of private copyright royalties. The impact of charging a
public royalty for folklore is that the monetary charge is capable of
compensating a social or indigenous group connected with the work. It
also gives further control and guardianship over the exploitation or
distortion of a work. However, there should be no charge where the
purpose is for education or creating a new original work.

Protection by droit de suite

Another extension of economic rights called droit de suite can also be
used to protect folklore. This is a type of resale royalty giving the
creator of a work the right to share in the increased value of a work if
it is later resold or gives rise to a windfall gain. Given the increased
interest in indigenous folklore and art, which can now fetch high
prices, it would seem inherently inequitable that creative works and art
from indigenous peoples can be acquired at a small cost to the purchaser
without proper recognition of the artist's or tribes' labour and skill
and later resold at a considerable profit. 

The collection of part of any windfall gain derived from the sale or
resale of works of folklore so that such moneys are used for the benefit
of indigenous communities or the promotion of their folklore would also
mean that the imposition of such a social tax should reduce speculation
in the arts.

Joint WIPO and UNESCO models

As folklore enhances the whole community's cultural heritage for the
benefit of all it is argued that there should be no time limitations
both forwards and backwards in relation to its copyright protection. The
Tunis Model Law on Copyright for Developing Countries produced by UNESCO
and the World Intellectual Property Organisation ("WIPO") in 1976, and
which is the basis of copyright laws in countries such as Sri Lanka and
Zaire, provides for economic and moral rights for folklore without
limitations in time and for the control of folklore to be in a
"competent authority" of government for the duration of its protection.
It would, however, be preferable for that control to be with the culture
from which the folklore stems so long as that culture also recognises
the wider public interest.

The Berne Convention, an international treaty on which nearly all
copyright laws are based, does not contain a direct reference to
folklore. A more comprehensive model set of rules dealing specifically
with folklore was jointly developed by WIPO and UNESCO in 1985 in the
form of the Model Provisions for National Laws on the Protection of
Expressions of Folklore Against Illicit Exploitation and Other
Prejudicial Actions ("Model Provisions"). This also aims to achieve a
compromise between the economic and moral rights surrounding folklore
and attain a balance between the protection of folklore against abuse
and encouragement of its further development and dissemination. However,
the use of the Model Provisions have not been promoted to help achieve
these ends.

The Model Provisions also do not deal adequately with matters of
collective ownership of works. It does however, recognise in section 3
that a system of prior authorisation of utilisation of folklore "made
both with gainful intent and outside their traditional or customary
context" can be administered by a "competent authority" or the
"community concerned". Although the importance of communal moral rights
and tribal equitable interests would better fill the gap. This
combination would ensure that there is no exploitation for profitable
gain for pseudo-cultural purposes.

Conclusion - wholistic position

The purpose of protecting an indigenous peoples folklore is not to cut
it off from outside influences. It is not in society's best interests or
the intention of copyright laws to setback the policy of broadening
everyone's knowledge and increasing the free flow of information. There
is, however, a need to maintain the integrity of works of folklore and
to ensure that they are not distorted out of context. 

To this end the creation of a sui generis category of intellectual
property rights for folklore is a means of giving greater control to the
community from which the works derive and to strengthen its folklore.
This is necessary for the appropriate realisation of both the cultural
and economic potential of works of folklore for the benefit of the
indigenous culture and for the spiritual advancement of all society. An
appropriate combination of rights and interests as outlined would have a
significant impact in elevating cultural expression and defeating the
impact of pseudo-culture. Both are important in creating spiritual
sentiment so important in any cultural and social revolution.

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Culture
By P.R. Sarkar

Culture is a vague term. It is the collective name for different
expressions of life. People eat, enjoy hospitality, laugh on some
occasions and shed tears on others, and thereby express life through
various actions. The collective name of all these actions is culture. 

According to Prout all of society has the same culture. There are local
variations in the mode or state of cultural expression, but the
expression is universal. While everybody eats, some eat by hand, others
by stick and still others by spoon. Indian dance is based on mudra' -
dance postures, and European dance is based on rhythm, but they do not
represent two different cultures. 

Local variations will diminish if there is a close blending between
different groups of people, because this will create common customs. The
local variations are called customs. Thus local modes of expression
bearing local or group specialties are customs, but the expression
itself is culture. Therefore it is a mistake to readjust boundaries on
the basis of language and culture. A particular national culture and the
culture of the world are one and the same. Readjusting boundaries on the
basis of customs is not possible for customs may differ within the same
locality.

From "Talks on Prout" (1961)
Prout in a nutshell 15

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Common constitutional defects

Everyone has the right to physical, mental and spiritual development.
But all constitutions have been written in such a way that they do not
ensure the all-round welfare of all citizens. A constitution should be
fair and just. The least bias on the part of the framers towards any
particular ethnic, linguistic or religious group may undermine the unity
and solidarity of the concerning country and thus disturb the peace and
prosperity of the society as a whole. 

Judged from this perspective some of the defects of national
constitutions are easily discernible. Many countries require a new
constitution to establish unity in diversity in a multi- lingual,
multi-social and multi-national country. While drafting the constitution
of a country the framers should keep in mind the population structure of
the concerning country. The population of many countries is now a
blended population of, for example, the Austric, Mongolian, Negroid and
Aryan races. But national constitutions, due to inherent defects, have
not helped establish social amity, cultural legacy, equality and unity
among these races. As a result fissiparous tendencies have developed in
the country. 

There are several fiscal and psychological loopholes in many national
constitutions. 

The fiscal loopholes include the following. First, there is no check on
unbarred capitalist exploitation. This is because the leaders of the
independence struggles did not give any economic sentiment. For example,
in India, the only sentiment was an anti- British sentiment. Thus the
independence struggle was only a political movement and not an economic
movement. After 1947 instead of white exploitation brown exploitation
came up. So, 1947 only brought capitalist political liberty but not
economic freedom. As a result unbarred economic exploitation continues
today. Secondly, the constitution gives no guarantee for increasing the
purchasing capacity of every individual. Thirdly, the president has no
constitutional power to check financial or fiscal matters. A few
business houses control the national economy of many countries, eg
through influences through some chambers of commerce. The president has
no constitutional power to check either the price level or the level of
exploitation. Neither the president nor the prime minister can check
these. Fourthly, there is no provision for inter-block planning for
development. Fifthly, no clear concept of balanced economy is found. 

The psychological loopholes in national constitutions include the
following. 

The first is the imposition of national languages which are flawed. For
example, in India English imperialism has been followed by Hindi
imperialism. Hindi is a regional language. The selection of one such
regional language as the official language adversely affects the
psychology of other non-Hindi-speaking people. As the consequence of
such a defective language policy in the constitution, the
non-Hindi-speaking people face unequal competition at the national level
and they are forced to use a language, either Hindi or English, which is
not their natural language. Hence they are relegated to "B class"
citizens. No regional languages should be selected as an official
language in a multi-national, multi-linguistic and multi-cultural
country. Such a selection would affect the minds of other language
speaking people. A regional language should not be so used. Even if a
good language it should not be forcibly imposed on others. 

Imposition should not be done. The spirit of secularism provides equal
scope and equal avenues to all for the maximum psycho-social-economical
development of every individual. 

Looking at India again.  Sanskrit may be the national language of India
- even if not spoken. It is the grandmother of almost all the modern
languages of India and has a great influence on the languages of India.
It may take 5, 10, 50 or 100 years to take this language to all people.
Roman script should be used for the language, as Samskrta has no script
of its own. All groups of people including linguists of India should get
together and decide this controversial matter.

The second psychological loophole is that there are several disparities
in the law. The constitutions of many nations proclaim that all are
equal in the eye of the law. But in practice, this principle is not
followed, and as a result disparity is growing in the arena of law and
justice. Such disparity is adversely affecting the different groups of
people in the country. For example, in India there are disparities
between the Hindu Code and the Muslim Code. Hindu women and Muslim
women, although they are all Indian citizens, do not get equal
advantages in law. In Hindu law, men cannot have more than one wife but
under Muslim law men can have two, three, four, etc, wives. Both Hindu
wives and husbands have to go to get a divorce, but Muslim men can say
"Talak, talak, talak" and divorce their wife. Thus Muslim men don't have
to go to court to secure a divorce. Moreover Muslim men can divorce
their wives but Muslim women cannot divorce their husbands. Also it is
not necessary for Muslim men to give any reason for their divorce. 

Disparity in the eye of the law is creating all these problems. The root
of all these evils lies in the psychological loopholes of the
constitution. Why are constitutions allowing this - different codes to
stand side by side? Let there be only one code. This Code should be
based on cardinal human values, with a universal approach and
neo-Humanistic spirit. Then only equality before the law can be
established in practice, and equal protection of the law for all can be
guaranteed. So the constitutions should remove the psychological
loopholes by eradicating existing disparities in the eye of the law. 

The third psychological loophole is that there is no law against the
indiscriminate destruction of flora and fauna due to the absence of
Neo-humanistic sentiment. In the Cosmic Family of the Universe, humans,
animals, plants, and inanimate objects exist together and maintain a
harmonious balance. However, human beings, because of their superior
intellect, are indiscriminately destroying plants and animals for their
own narrow, selfish ends. In the constitutions, there is no provision
for the safeguard of the plants and animals. In a constitution, there
should be safeguards for the lives of plants and animals. The absence of
such provisions in the constitution creates psychological loopholes,
which should be corrected without delay.

Fourthly, the relation between the centre and the states in a
confederation should be clearly defined in the constitution. Otherwise,
there will be centre-state conflict and the whole country will be
psychologically affected. State boundaries may need to be redrawn to
reflect communities and states may need to be abolished or made into
regional governments to best meet the needs of the people.  Among all
other aspects of this relation two important aspects should be clearly
defined - the right of self-determination, and the right of secession of
a particular component of the confederation. In many constitutions these
are not clearly stated. As a result, the relation between the centre and
the states is always strained and under pressure. 

Fifthly, in the constitutions, there may be no clear definitions of
indigenous cultures or tribes.  Rather, these cultures remain
disadvantaged on the basis of racial considerations. Instead of this
unscientific approach, cultures and tribes should be given preferential
treatment to remedy their educational and economic backwardness. Once
those problems are cured, then non-discriminatory and non-preferential
treatment is to be afforded to all.  Non-discriminatory treatment
should, of course, exist from the beginning for all peoples.

Adapted from a discourse by P.R. Sarkar given on 22 September 1986 at
Calcutta 

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