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The Wheel of Law
by Aruni Mukherjee Bookmark and Share
 


In the first paperback edition of this book (originally written in 2003), the author undertakes a substantial academic challenge ' to compare and contrast Indian secularism with that of the United States and Israel in their constitutional context. This 'comparative trio' has developed three distinct avatars of secularism defined as assimilative, visionary and ameliorative, attributed to the US, Israel and India respectively. His essential aim is to gauge wither a defence of religious liberty can be reconciled with constitutional secularism.

When Gregory Johnson was burning the American flag in 1989, he breached the 'wall of separation' that is enshrined in US polity between the Church and the State. Such delineation is impossible, as the author argues, in Israel, where the Star of David epitomizes the Zionist inspiration behind the birth of the nation itself. As such, the republican flag does not represent anything other than the 'American way of life'.

In a country where 'religion permeates everyday life and informs national identity' (although by no means a single religion) like India, the flag is also a symbol of its constitutional mindset. While some commentators have made the grave error of associating the saffron on the Indian tricolor with the Hindus, the green with the Muslims, and the white with the desire for peace between these communities, the author cites Jawaharlal Nehru addressing the Constitutional Assembly, arguing that the colors stood for revolution, industry, agriculture and commerce instead.

How can religious liberty be guaranteed in societies where religion pervades everyday life? A country's particular constitutional theory and practice must be understood within its social and political context. The experience of India, where religious life is in profound tension with secular democratic commitment, offers a valuable perspective not only on questions of jurisprudence and political theory arising in countries where religion permeates the fabric of society, but also on the broader task of ensuring religious liberty in constitutional polities.

Rock Edict 12 of Emperor Ashoka (273 BC to 232 BC) states that the 'essentials of dharma' necessitate 'restraint in regard to speech'- that 'it should be moderate' and 'the other sects should be duly honored'. The chakra of Ashoka ' the wheel of law ' has spokes of equal length suggesting just this. The author traces this influence not only to the tricolor, but also to the Representation of the People Act (1951) enshrined in Indian jurisprudence.

The author focuses on the 'Hindutva cases' of the mid-1990s in the Indian Supreme Court after the destruction of the Babri mosque in Ayodhya in December 1992. The central government's usage of Article 356 to dismiss 3 state governments was being challenged in the apex court. The court upheld the decisions of the government in Delhi based on its condemnation of the 'corrupt practices' of cultural nationalism. Since this is a significant departure from the strict neutrality in such cases (for example, in defining cultural nationalism as corrupt practices rather than simply focusing on the resultant violence), it gives the judiciary's power a different contour in India vis-'-vis the US and Israel.

Article IV, Section 4 of the Guarantee Clause in the US was evoked to deter the federal government from acting against the southern states' insistence on continuing slavery. This can be attributed to the liberal insistence on absolute neutrality. Similarly, a long standing demand of the Hindutva supporters in India has been to establish a universal civic code, deterred thus far by India's ameliorative conception of secularism. It is nearly 36 years since Amartya Sen built on the 1950 paradox outlined by Kenneth Arrow to suggest that welfare and liberty doomed to an irreconcilable conflict in a society with multiple choices. The dilemma over secularism in India continues to vindicate this paradox.

The author criticizes some of the Hindutva ideologues of advocating a 'slavish emulation' of the Israeli polity in India. However, as jurisprudence in each country is directly impacted by both the constitutional context and 'ethnography', no one size can fit all. Contrast this with the complicated juxtaposition of innumerable religions and castes in India, and a singular vision like that of Israel becomes impossible to conceptualize.

The assimilative model of secularism in the US is also questioned by the author, when he suggests that political assimilation is increasingly being coupled with social assimilation, implying standardization. Invoking Employment Division v Smith (1990), the author argues that US jurisprudence has much to learn from the ameliorative model of India, which he considers to be apt for application in this case. 

Certain arguments in the book can be readily questioned. First, Jawaharlal Nehru agreed that religion was a 'restraining influence on changes in civil society'. Alexis de Tocqueville, on the other hand, was favorable to a 'peaceful dominion of religion'. But do religion and civil society need to be problematically intertwined? Romila Thapar has argued- and the author agrees- that the wheel of dharma was essentially secular in its implication. However, the problem lies in the static visualization of religion, which is not the case in India, as the 'ever-changing' definition of Sanatana put forth by Sarvapalli Radhakrishnan so vividly portrays.

Second, Jacobsohn quotes Seymour Martin Lipset and agrees that 'nations can be understood only in comparative perspective'. Although it can be readily conceded that analyzing differences between polities can indeed yield fruitful answers, often to understand the essence of a nation, we need to refer to the famous phrase of the 19th century historian Leopold von Ranke ' Wie es eigentlich gewesen (how it essentially was).

Third, in what is supposedly a holistic analysis of the Indian constitutional field, a marked absence is that of a critique of the extremist Maoist and Islamist movements that have sprung up and gathered momentum in the 1990s, establishing 'peoples' courts' and those following the shari'a, bypassing the laws enshrined in the Indian Constitution. The 'crisis of secularism' can hardly be understood adequately with just one dimension in the author's analysis- the Hindutva movement. While it is perhaps unorthodox to classify the far left movements under the same umbrella as a religious movement, it too threatens the constitutional balance in Indian jurisprudence by attempting to forcibly include provisions alienating the so-called upper caste communities in many far flung rural areas.

Ultimately, Jacobsohn's analysis concludes at a rather persuasive argument. While impartial on the surface, American social and political life is impacted significantly by the role of the Church on issues of public concern such as abortion and education, the latter also being hotly debated in India. However, in India, there has been no attempt to artificially water down this impact by assimilation (which could lead to homogenization). On the contrary, the Sarva dharma sambhavaprinciple is essentially impartial, although it involves including all religions in the jurisprudence, making matters more complicated, albeit more reflective of how society really is, but perhaps being more sensitive to the religious liberties of the individuals and communities concerned.     

4-Dec-2005
More by :  Aruni Mukherjee
 
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