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Indian vs American secularism The Wheel of Law by Gary Jeffrey Jacobsohn
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Reviewed by Aruni Mukherjee
In the first paperback edition of The Wheel of Law (originally written
in 2003), Gary Jeffrey Jacobsohn undertakes a substantial academic challenge -
to compare and contrast Indian secularism with that of the United States and
Israel in the 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. Jacobsohn's
essential aim is to gauge whether a defense 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 church and 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 US flag does not represent anything other than the
"American way of life".
In a country such as India where "religion permeates everyday life and informs
national identity" (although by no means a single religion), 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 India's first prime minister, Jawaharlal
Nehru, addressing the Constitutional Assembly, arguing instead that the colors
stood for revolution, industry, agriculture and commerce.
Emperor Ashoka's (273 BC to 232 BC) Rock Edict 12 states that the "essentials
of dharma" (principles that order the universe) 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" (involving Indian nationalists) 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 three state governments was being challenged in the apex court.
The court upheld 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 focussing on the
resultant violence), it gives the judiciary's power a different contour in
India vis-a-vis the US and Israel.
Article IV, Section 4 of the "guarantee clause" in the US constitution 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 (Indian economist best known for his
work on famine, human development theory, welfare economics, the underlying
mechanisms of poverty and political liberalism) built on the 1950 paradox
outlined by American economist 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 such as 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) - a US Supreme Court ruling that says the state can
fire someone for violating a state prohibition on the use of peyote, even
though the use of the drug was part of a religious ritual - 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, Nehru agreed
that religion was a "restraining influence on changes in civil society". Alexis
de Tocqueville (the French political thinker and historian whose most famous
works was titled Democracy in America), on the other hand, was favorable
to a "peaceful dominion of religion".
But do religion and civil society need to be problematically intertwined?
Indian journalist Romila Thapar has argued - and Jacobsohn 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 (Hinduism) put forth by
former Indian president Sarvapalli Radhakrishnan (who was credited with
introducing the thinking of Western idealist philosophers into Indian thought)
so vividly portrays.
Second, Jacobsohn quotes Seymour Martin Lipset (president of the American
Political Science Association and the American Sociological Association) 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 Sharia (Islamic law),
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 use of assimilation (which could lead to homogenization). On the
contrary, the Sarva dharma sambhava principle (equal treatment of
religions) 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.
The Wheel of Law: India's Secularism in Comparative Constitutional Context
by Gary Jeffrey Jacobsohn. Princeton: Princeton University Press, 2005. ISBN:
0-691-12253-9. Price $24.95, 344 pages.
Aruni Mukherjee is based at the University of Warwick, England
(Copyright 2005 Aruni Mukherjee)
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