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RIGHTS AND LIBERTIES

( Project Report )

Submitted to :- Submitted by :-
Dr. Anita Samal Ishu Deshmukh
(Pol. Science Dept.) B.A. LLB 1st Semester
Section-B Roll No.- 81

HIDAYATULLAH NATIONAL LAW UNIVERSITY


Uparwara Post, Abhanpur, New Raipur -493661(C.G.)

Declaration
I hereby declare that the project work entitled RIGHTS AND LIBERTIES
submitted to Hidayatullah National Law University, Raipur, is a record of an
original work done by me under the able guidance of Dr. Anita Samal , Faculty of
Poltical Science, Hidayatullah National Law University, Raipur. The information
submitted herein is true and original to the best of my knowledge.

Date: 26.08.2015
Signature of the Student

Place: Raipur

Acknowledgement
Thanks to the Almighty who gave me the strength to accomplish the project with sheer hard
work and honesty. This research venture has been made possible due to the generous co-
operation of various persons. To list them all is not practicable, even to repay them in words
is beyond the domain of my lexicon. This project wouldnt have been possible without the
help of my teacher Dr. Anita Samal the Faculty of Political Science at HNLU, who had
always been there at my side whenever I needed some help regarding any information. She
has been my mentor in the truest sense of the term. The administration has also been kind
enough to let me use their facilities for research work. I thank them for this.

Contents
1. Introduction.1-2
2. Objectives, Scope, Methodology of the study3
3. Definition..4
4. Analysis Of Rights5
i) Natural Rights.6
ii) Legal Rights.7
iii) Moral Rights8
iv) Positive and Negative Rights..9
v) Individual and Group Rights..10
5. Universal Rights...11
6. Theories of Human Rights..12
7. Nature of Liberty..13
8. Kinds of Liberty...14-15
9. Safeguards of Liberty..16
10. Conclusion.17
11. Bibliography.18

INTRODUCTION

RIGHTS :
Meaning of Right:
From a historical point of view, `right' in its objective sense is described as right or just
actions that individuals have to discharge to maintain harmonious relationships between
themselves. In the modern or subjective sense, its definition is long and divisive. Whatever
may be the controversy, and scholarly discussion that surrounds the historical origins, and the
different meanings that `Right' has, in general rights mean- a legal sanction or normative
value.
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the
fundamental normative rules about what is allowed of people or owed to people, according to
some legal system, social convention, or ethical theory. Rights are of essential importance in
such disciplines as law and ethics, especially theories of justice and deontology.

Rights are often considered fundamental to civilization, being regarded as established pillars
of society and culture, and the history of social conflicts can be found in the history of each
right and its development. According to the Stanford Encyclopedia of Philosophy, "rights
structure the form of governments, the content of laws, and the shape of morality as it is
currently perceived.
Rights are essential conditions for good life in society. They help in the all round
development of people and their personality. Rights are those conditions of social life which
man cannot be at his best or what is needful to the adequate development and expression of
his personality. The idea of rights provides for an essential tool of analysis of the relations
between individual and the state. The state claims authority over individual, but when the
state is viewed as instrument of society, it is essential that authority of the state is made to
depend on the function it performs.

LIBERTY

Meaning of Liberty:

Though the term liberty comes from the Latin word liber meaning free, it has not meant
the same thing for all thinkers in the realm of western political philosophy. The word free
is one which is often used, especially by politicians, but it is not always clear what is meant,1

1 Benn and Peters: Social Principles and the Democratic State (London: George
Allen and Unwin,1975)p. 196.
Thus, we may find a wide margin of difference between the views of eminent political
scientists ranging from that of Mill who treats liberty as something absolutely immune from
restraints at least in the self-regarding sphere of human activity2 to that of Laski who takes it
as the eager maintenance of that atmosphere in which men have the opportunity to be their
best selves.3It is owing to this diversity that the negative and positive dimensions of liberty
have been differently treated, particularly by the thinkers of the English liberal school.
Liberty means the absence of constraints and not the absence of restraints and limitations. It
does embrace the area of mans choice and, at the same time, calls for the proper justification
of the limits or restrictions on such an area.4 Man is a social animal and he is living in society.
He must, therefore, adjust his liberty with due regarding to the liberty of others. Regulation of
human conduct and behaviour is indispensable in social life. The fundamental maxim of
liberty is that law is the condition of liberty. Prof. Barker has pointed out that just as the
absence of ugliness does not mean presence of beauty, so the absence of all restrains does not
mean the presents of liberty. Freedom is a very precious condition without which neither the
state nor the individuals can make any progress.

2
Objectives of Study:

The broad objective of the study is to analyze rights and nature of liberty and to study theory
of human rights, kinds of liberty.
2 J.S. Mill. : On Liberty (London, :Everyman,1984), pp.67-68

3 Laski, op.cit., p.142.

4 See Maurice Cranston : Freedom : A New Analysis (London : Longman,1953).


Ch.1.
Scope of the Study

The scope of this project is limited to the study about the Rights and also to study about
Liberties.

Methodology of the Study:

This project work has been carried out following the descriptive analytical approach. It is
largely based on the analysis of various parts of the Indian Constitution dealing with the
protection of rights of the minorities. At the same time, efforts have been made to study the
laws themselves, trace their origins, analyze them from a neutral viewpoint and look at their
implementation. Books & other references as guided by faculty of Political Science were
primarily helpful for the completion of this project.

DEFINITION

Definition of Rights by different Political Thinkers:

Basanquet A right is acclaim recognized by society and enforce by the state.

Ihering Rights are legally protected interest.


Holland Right is the capacity residing in one man of controlling, with the
accent of and assistance of the state the action of other.

Salmond A right is an interest recognized and protected by rules of right that is


by, legal rules.

Definition of LIBERTY by different Political Thinkers:

Libel It is the faculty of willing to the power of doing what has been willed
without influence from any other source.

D.D. Raphall Freedom means absence of restraints. A man is free so far as he


is not restraint from doing what he wants to do or what he would choose to do if
he knew that he could.

G.H. Colhe Liberty is the freedom of every individual to express without


external hindrance, his personality.

T.H. Green Power to do or enjoy something that is worth doing or worth


enjoying in common with others.

Analysis of Right

In its analytical perspective, right has two parts (form and function). One is the internal
structure of right (their form); and the other is what rights do for those who hold them
(function). Accordingly, right is a combination of claim and duty. This means a right confers
certain liberties or privileges and imposes duties upon individuals to exercise while claiming
their rights. A number of jurists define the concept of exercise of rights with duty as positive
and negative rights. Accordingly, the person who is possessive of positive rights entitled to
provision of some goods or services. A holder of negative right is entitled to non-interference.
In the eyes of law,
Right confers on a person certain amount of liberties and privileges. At the same time impose
obligations to discharge. Furthermore, possessing a right should also enable a person to
exercise it. This part of empowerment mechanism could be achieved only by imparting the
values of human rights education. However, basing on the common usage of the term
philosophers and political analysts in subjects like philosophy, politics, law and logic et.al.,
have defined
the rights in a number of categories. Accordingly, rights may be broadly defined as

1) Natural Rights
2) Legal Right
3) Moral Rights
4) Positive Rights
5) Negative Rights
6) Individual Rights and
7) Group Rights

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NATURAL RIGHTS

The concept of Natural rights is closely associated with the philosophy or theory of Natural
law. According to this theory, nature or God alone regulates the wisdom and the activities of
men. The kings being the divine origin, as representatives of God, the rules framed by them
were considered divine in nature. But in the age of enlightenment ( or Age of Reason) of the
eighteenth century a number of Western advocators like, Hobbes, Locke, Hugo Grotius,
Rousseau, Samuel Pufendorf, et.al., challenged the origin of divine concept to natural law. A
natural right is nothing but, rights based on just, fair and reasonable. This means, the
individuals unite themselves to form political societies through mutual consent, and agree to
form a government of their own. It will enable them to lead their life through common rules
and regulations framed by either them or their representatives. At the same time, they accept
a set of legal and moral duties to be observed or bound by them in the exercise of their rights
in order to live in peace and security without any violence.

However, this being the central philosophy advocated by all philosophers of natural law, there
is a difference of opinion that exists among them. A section of modern naturalists argue that
since human rights are closely associated with the concept of natural rights, there exist no
difference between natural and human rights; both are one and the same. But some
traditionalists argue that since natural rights are not framed by men and are the dictates of
right of reason of nature, both cannot be equated. According to them, since natural rights are
being above the power of any authority either state or international bodies, and are universal
in nature, they cannot be equated with human rights, because they are adapted by human
society through an international body and not of divine origin.

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LEGAL RIGHTS

Legal Rights means, rights that are guaranteed to citizens of a country by law enjoy certain
freedoms without any fear or favour. Legal rights also referred to as statutory rights,
bestowed by a particular government to the governed and are relative to specific cultures and
governments. These rights are enumerated or codified into legal statutes by a legislative body.
These rights may differ from country to country depending upon the constitution and culture
that they adopted. Nevertheless, at the same time legal rights impose an obligation on other
people not to exceed the prescribed limits of law. Legal rights are granted to man by law.
According to Leacock, A legal right is a privilege enjoyed by a citizen against his fellow
citizens, granted by the sovereign power of the state and upheld by that power. They are also
protected by law. The courts have the responsibility of safeguarding legal rights. Legal rights
are definite, clear, uniform, and universal. No discrimination shall be shown between citizens
in the application of legal rights by the state. There are definite bodies to formulate and to
interpret legal rights. The violation of legal rights leads to punishment by the government.

Legal Rights may be classified vividly as follows:


1. Primary and Secondary Rights- A primary right is a right vested in a person by law or
by contract or in any other legal matter. They may be explained as the bundle of rights
which are the privileges enjoyed by any person, e.g., a persons right to liberty, safety
and reputation. Primary rights have independent existence.
A Secondary right or sanctioned right is a right that arises if the primary right is lost.
It is called the sanctioned right because it is a mode of legal enforcement, by the way
of solace for the loss of primary right. Secondary rights have no independent
existence.
2. Public and Private Rights Public rights are rights vested in the state. The state holds
such rights as the representative of the public for the benefit of the community.

Private rights are rights which belong to individuals. When both the persons with
whom a right is connected are individuals, it is a private right. A right which an
individual exercises for his own personal benefit is a private right. Holding a house by
an individual is a private right.
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MORAL RIGHTS

In ordinary language, we use the term right in at least two ways; we say that someone has
the right to something, and we also say that someone has a right to do certain things. In the
first instance, the existence of the right concerns the behavior of someone other than the
right-holder, since to say that I have a right to something is to say that someone has the duty
to act in a certain manner towards me. In the second instance, it is the right- holders behavior
that is in question, and to say that he has a right to act in a particular way is to say that he is
morally free to do so- that it is not wrong for him to do so. These two uses of the term right
correspond in part to Dworkins (1977:188) strong and weak senses of right respectively.
The standard interpretation of a claim-right is that another has the duty to act in a certain way
with respect to the thing to which the first person has a right. But does a right-to-something
merely imply a duty in others or is it a package of normative advantages? Either way, the core
idea of right appears to be that an object or interest protected by a duty has something that are
considered to be good, and to say that one has a right to such a things means that ones
interests in that thing deserves protection.
Not all goods or interests generate rights; it is only when there is a particularly important
moral reason for protecting the good or interest in question that we speak of there being
aright attached to it. This idea is expressed in Dworkins (1977:189-90) well- known claim
that individual rights are political trumps held by individuals. He goes to add that individuals
have rights when, for some reason, a collective goal is not a sufficient justifications for
imposing some loss or injury upon them.

Positive And Negative Rights

A section of philosophers drew a distinction, which is thin and narrow between positive and
negative rights. Positive rights means, rights for which a person is expected to discharge
some service or to do good independently or to the society as a whole. Negative rights
impose an obligation on others not to interfere with the liberty or independence of another
holder of rights. In the language of law since both rights are passive rights, it is difficult
always to classify these rights in a strict sense. The Universal Declaration of Human Rights
(UDHR) has both the characteristics of Positive and Negative rights. Many scholars argue
that since there is a co-existence between the two concepts; a distinction is not necessary.

Examples for Positive Rights: These rights normally impose duty either on the state or on
society or a group of individuals in satisfying the claims of owners of rights, (for example)
Right to Education, Right to Health, Social Security etc. In the Indian context these are
described as the Directive Principles of State Policy under the Constitution of India. It is not
easy to achieve this category of rights as they depend on various factors including the
resources. These rights are referred as Economic, Social and Cultural rights in the language
of human rights.

Negative Rights Examples: The rights normally impose a duty on every individual as a moral
and legal obligation to refrain from causing injury to the exercise of the right of other person.
Right to freedom of speech and expression, right to life and liberty, right to equality, right to
property, right to be heard right to speedy trial and justice, right to worship, freedom of
religion, right to legal remedy etc. are referred to as Civil and Political Rights in the UDHR.

Individual and Group Rights

Individual rights mean the rights that belong to an individual alone. These rights are mainly
political, economic, or legal in nature. These rights can be exercisable by individuals to enjoy
their life and liberty without any interference of anybody including the state. However, the
individual rights have positive and negative elements Positive element obligates a person to
discharge the right according to law. The negative element prohibits any act that is not
permitted by law. Group Rights means rights that are enjoyed by a group and as well as
individually. For example, the rights of disabled persons are considered as group rights. They
promote the rights of the disabled as a group. At the same time, an individual disabled person
also could claim the rights independently of the group. From the above brief discussion, a
right may be defined as something that one possess to exercise either naturally, legally, or
socially with a moral/legal duty to act without violating the right of others. Accordingly, a
right has five elements in it. They
are:

1. A right holder ( which the subject of a right) has claim to


2. Some substance of it ( the object of right)
3. Which he or she may assert, demand, enjoy or enforce (exercising a right)
4. Against some individual or group ( the bearer of the correlative duty)
5. Citing in support of his or her claim on some particular ground (the justification of a right)

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Universal Rights:

Universal rights means rights that every individual would able to exercise their freedoms
irrespective of their country of origin, residence freely without any interference by the state
or any other person subject to legal limitations. These rights promote the dignity and the
worth of an individual at all times. Hence, they impose obligations on every state to protect
and promote the dignity and the freedom of individuals without any discrimination as to race,
sex, language, or religion. Since these rights are the minimal in the life of an individual,
Franklin Delano Roosevelt, the former President of USA in his joint address to the US
Congress on January 6,1941 advocated freedom of speech, freedom of worship, freedom
from fear and freedom from want as the basic principles for the worth and dignity of an
individual. Basing on the above principles, the ideology of freedom of the individual
advocated for many centuries. The United Nations in its Charter adopted on October 24, 1945
recognized human rights as a part and parcel of international law. Accordingly, the concept of
human rights took their birth in international law. They in turn impose an obligation on every
state to promote them without any discrimination. These rights have been further elaborated
through the Universal Declaration of
Human Rights adopted on December 10, 1948. Though there exists a difference of opinion
about the Universality of human rights between political philosophers and scholars of
international law, in view of their wide acceptance by 193 member states of the United
Nations, they are no doubt constituted as universal rights. A right is that which a man
demands from others justifiability. A responsibility is that which makes a man accountable to
his actions and consequences of his actions and conduct. A right can be moral, ethical, legal
or social or cultural. Rights are treated as moral when they are natural i.e. enhance the
existence. A rational right is justifiable and not emotive. A right has to be based on reasons
and it has to be always general.
The present declaration gives prominence to civil and political of human beings and legal
protection thereof. Then it pays due importance to their social-economic rights. In order to
strengthen the foundation of these rights it also highlights individuals duties towards the
community.
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Theories of HUMAN RIGHTS

If human rights are taken in a wider sense, i.e. means of protecting individual from
onslaughts or atrocities of arbitrary power, there is hardly any dispute about their status. But
if they are viewed as a tool in the hands of individual to safeguard his self interest against the
claims of the state and society, they are likely to receive different treatment from different
schools of thought. These divergent views regarding the nature and status of rights or human
rights may be called theories of human rights. Of these, Liberal, Libertarian, Marxist,
communitarian and feminist theories are most important.
Liberal theories of rights are expounded by John Locke (1632-1704) focuses on rights of
individual against the state. Although Locke makes a distinction between society and State
and sees no serious conflict between individual and society, his theory of rights deals with a
possible conflict between individual and the state. He postulates that individuals from the
state as a trust for the protection of their natural right to life, liberty and property. If the state
fails in his duty, individuals can resist it. If it fails, they can dissolve it. In fact Locke does not
make a distinction between state and government. That is why society will not disintegrate
with the dissolution of state or government. That is why society will not disintegrate with the
dissolution o state or government. In short, liberal theory of rights treats individual as the end
and sate as the means.
Marxist theory of Rights as expounded by Karl Marx (1818-83) and V.I. Lenin (1870-1924)
holds that the rights maintained by any society are the rights of its ruling class or dominant
class at the expense of the dependent class. So the capitalist society protects the rights and
interests of capitalists at the expense of the working class. Workers will have to overthrow
capitalists and socialize the major means of production in order to create a new order that
would protect the rights and interests of the working class. Communication theory of rights as
advanced by Alasdair MacIntyre (1929-) focuses on individuals commitment to the
community which represents the common interest. This theory refuses to recognize
independent interests or rights of the individual.
Finally, feminist theory as represented by Shulamith Firestone (1945-) and Sheila
Rowbotham (1943-), among others, insists on restoring the rights of women in a male-
dominated society. It seeks to transform the prevalent system of rights which has been
responsible for the subordination of women to men in all societies in all ages.

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NATURE OF LIBERTY

Negative Concepts of liberty

Berlin defines Negative Liberty as a freedom from interference from others. It means absence
of unreasonable restraints. Simply negative liberty means, the absence of coercion by
individuals or institutions over interference into the private sphere of an individual. It assures
dichotomy between two areas of activity , the area of public authority and area of private life.
How wider or narrow are the two respective areas is a matter of discussion and determined by
social and economic circumstances. Liberty is wider and activity is also wider if interference
from others is minimum. Liberty alone can enable a person to develop his personality. The
state should guarantee only non-interference by one with the other. So far as the choice of the
individual is concerned, he must be his own master. The individualist school of thought was
the main supporter of negative concept of liberty.
The major exponents of negative concept of liberty are J.S.Mill, Herbert Spencer, Bentham,
Smith etc.

Positive Concepts of Liberty

Positive concept of liberty means that the state creates positive conditions for a good life. It
demands conditions which are essential for self development of the individuals. Every
individual must enjoy the benefit of social life. In the words of Laski," liberty means the
eager maintenance of that atmosphere in which men can have the opportunity to be their best
selves". Thus positive concept of liberty means the removal of hindrances from the way of
good life and the creation of equal opportunities for all. All the modern democratic states
have more or less accepted this positive concept of liberty.
Positive concept of liberty was advocated by Laski, T.H. Green, Kant, Hegel.

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Kinds of Liberty

1. Natural Liberty:

Natural liberty is generally identified with unlimited and unrestricted freedom. Natural liberty
according to Hobbes, is the absolute right of man in the state of nature to all things including
the right to kill other man. In the social life no man enjoys natural liberty since he is subject
to regulations and rules named by the government and moral pressures of society. The
advocates of natural liberty hold that man is free by nature and that it is civilization, which is
responsible for his bondage. Rousseau was the chief exponent of the concept of natural
liberty, and natural liberty existed in that state of nature. He says men lost his natural liberty
with emerges of the state or civil society.

2. Civil Liberty:

Civil liberty implies freedom enjoyed by the people in civil society. Civil liberty is created by
the civil rights guaranteed by the state. The more the civil rights, the more the civil liberty.
According to Gettle," civil liberty consists of the rights and privileges which the state creates
and protects for its subjects". It is manifested in concrete terms in rights such as the right of
freedom, the right of life, freedom of speech and expression, property, association, education
etc.

3. Political Liberty:

Political liberties are based on the political rights of an individual and is the freedom to
participate in the political life and affairs of the state. Political liberty is essentially associated
with democracy and it makes a state into a democratic one. Without political liberty neither
the state can be democratic nor an individual can enjoy full civil liberties. The two essential
conditions necessary for the existence of political liberties are education and free press. It
consists of the right to vote, right to stand for election, right to hold public office and the right
to criticize the government.

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4. Economic Liberty:

Economic liberty implies that the basic necessities of life should be assured to everybody. It
means absence of economic disparities, exploitation, insecurity, unemployment and
starvation. Economic liberty is said to be the mother of all other liberties. Civil and political
liberties become meaningless in the absence of economic liberty. In his book ' Grammar of
Politics', Prof: Laski defines economic libertythus:" By economic liberty, I mean security and
the opportunities to find reasonable significance in the earning of one's daily bread.......".

5. Moral Liberty:
Moral liberty implies the right of an individual to act according to his conscience . It means
the freedom of an individual to act as rational being. It is given an opportunity to express and
develop his personality. It is possible in a democratic state and not in a totalitarian state. In
totalitarian state people are expected to act according to the orders of the government and not
according to their inner conscience.

6. National Liberty

National liberty implies the liberty of the nation or the country. It exists where the nation or
the community is independent and sovereign. It means that, a nation which is completely free
from foreign domination. Every nation has a birthright to regulate its national life as it likes.
If a nation is under the control of others, no cultural, social, economic and political
developments are possible.

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Safeguards of Liberty
1. Establishment of Democracy.
Liberty can exists only in a democratic form of government. In a democratic government run
by the elected representatives of the people, government is accountable to and removable by
the people. In this system, political power really resides in the hands of the people.
2. Fundamental Rights:
Another prerequisite of liberty is that there should be a supreme law of the country, namely,
the constitution. It is the only constitution that confines the authority of the state. Constitution
of democratic countries like America and India, which should be incorporate certain
fundamental rights to the people, These rights protect the personal liberties of citizens from
the state interference. Thus constitution safeguards the liberty of the people and it is a
custodian of those liberties.
3. Independence of Judiciary:
The judges are the interpreters of the constitution and the courts are the custodians of the
liberty of the people. So liberty can be enjoyed if there is an independent judiciary. It is
completely free from the influence of legislature and executive. Only an impartial and
independent judiciary can safeguard the rights and liberties of the people.
4. Separation of powers:
Another condition of liberty is that there should be separation of powers. Separation of
powers is an effective safeguard for individual liberty. In the interests of individual liberty,
legislature, executive and judiciary wings of the government should be vested separate and
distinct organs, each independent of the other.
5. Rule of Law:
Rule of law is an essential prerequisite of liberty. It means equality before law and equal
protection of law. Nobody is above law , law applies to everyone equally and violation of law
will be punished equally. It also means that no person can be deprived of his life , liberty and
property except in accordance with law. Thus the rule of law is an effective instrument of
individual liberty.
6. Absence of special of privilege :
Another prerequisite of liberty is that none in society should enjoy any privileges based on
caste, sex, colour, religion, language, region. The existence of special privileges for some
spoils the spirit of liberty and that creates chaos and confusion in the society.
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CONCLUSION

In the contemporary world the scope of human rights needs to be expanded further. To sum
up this discussion, there is no intrinsic reason to assigns rights to individuals alone, for if
individuals are incomplete without the cultural resources that communities provide them,
individual rights are incomplete without community rights. But we cannot buy peace between
the communities at the expense of individuals. Thus, we need to think of community rights as
conditional rights. But these cultural rights should not override the core rights, i.e. the right to
life, freedom, equality, and the right to assert rights. The problems of protecting life and
health in the present-day society have become more complex. The spread of terrorism, drug
trafficking and environmental pollution are now threatening the life of people. It is the duty
of the state to save people from that threat. This duty of the state must be included in the list
of human rights.

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Bibliography

BOOKS

1. Dr. S.R. Myneni, Poltical Science.


2. O.P. Gauba An Introduction to Political Theory, Fifth Edition, Macmillan
Publishers India ltd., 2009.
3. Rajeev Bhargava Political Theory an Introduction, Twelfth Edition, Dorling
Kindersley (India) Pvt. Ltd.
4. J.C. Johari Contemporary Political Theory, First Edition, Sterling Publishers
Pvt. Ltd.

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