In an “inspired” statement after visiting the temples at Dwarka and Somnath in Gujarat earlier this January, Chief Justice of India D.Y. Chandrachud said:
“I was inspired this morning by the dhwaja at Dwarkadhish ji, very similar to the dhwaja, which I saw at Jagannath Puri. But look at this universality of the tradition in our nation, which binds all of us together. This dhwaja has a special meaning for us. And that meaning which the dhwaja gives us is– there is some unifying force above all of us, as lawyers, as judges, as citizens. And that unifying force is our humanity, which is governed by the rule of law and by the Constitution of India.”
It is a dense statement with philosophical implications if connected to the future spirit of the law in India. There is a politics of mysticism behind the statement. The statement suggests that behind (and “above”) the force of law is another “unifying force”. This force binds us prior to the force that binds us to the law. It is the force of national tradition.
The dhwaja, or flag, in a temple represents the idea of a specific tradition within a nation. It does not represent all other traditions. The flag or any other symbol belonging to a tradition can’t be universal. To consider tradition as part of sacred territory is still an argument of difference, distinguishing it from other traditions. It is not a mark of universality.
Universality is an idea connected to a secular culture (and a secular state). It does not represent any tradition. The principle of universality in a nation comes from the life that people of various cultures and traditions share together as citizens. Nehru called it “a sense of common living and common purpose” in The Discovery of India. The “special meaning” of traditions doesn’t become less special if it isn’t universal. Traditions are special precisely because they add to a nation’s diversity. To consider the “unifying force” of tradition “above” all of us suggests that we are bound to a tradition before we are bound to any other idea or system of law. But the force of tradition can’t undermine the law of the state if that relationship has to be retained in any meaningful manner.
Traditions are prejudicial, and their pretention to universality is circumscribed by prejudice. The profound prejudice of traditions governs the lives of people who swear by it. It also governs people’s lives with others, those who do not belong to that tradition. The relation between traditions is governed by mutual prejudice. There are, however, ethical guidelines within traditions regarding how to relate to others outside it. These guidelines are part of the law of tradition, the tradition of law that predates the universal law of the secular state. These guidelines are still not universal, for each tradition understands its relation with others in distinct ways, connected to its own precepts and history. The ethical nature of the relationship between traditions is derived from their mutual capacity to partake in shared life. The element of prejudice however persists in that relationship, and is often the cause of mutual animosity and strife. Justice in a secular nation is often, simply, the management of strife.
In Pensées (1670), Pascal identifies three sources behind the essence of justice: legislative authority, sovereign interest, and the surest of all, current custom. Justice is not eternal, but a matter of time. In his famous essay “On Experience” (1587-1588) Michel de Montaigne calls custom the “mystical foundation of authority”, where he means to say that people follow the law not because it is just (or, brings justice) but because they are laws to be obeyed. One obeys, or bound to obey, authority, even if it isn’t just. Authority is a matter of collective belief, ruled by custom. Montaigne suggests that the customary nature of law prevents the possibility of imagining the just. It curtains, curtails justice. Does secular law overcome the constraints of custom to become, or realise itself as, universal, and just? Can this law become what Aniket Jaaware meant in his evocative phrase in Practising Caste: On Touching and Not Touching by “just us”? In his words: “Not us and them, not you and me making up a divisible us. Just us.” Justice is us, about us, the un/just us, the destitute of law. It is an undefinable us that cross the crisscrossed borders of traditions to seek what makes us, and what is denied us.
Let us go back to the Chief Justice’s statement. He not only invokes tradition but also “nation”, equating the two to mean that there is a tradition of the nation that is symbolised and embellished by the dhwaja on the temple. The force of tradition binds both the giver and receiver of law, which in turn forms the essence of the rule of law and the Constitution. The question arises: Does this force of tradition include the force of other traditions? In other words, can “universality” be posed as an idea (and a value) within– in the name of– the nation by not naming the diversity of traditions within it? Can the idea, or essence, of a singular custom become the unitary basis of the law, of that elusive possibility we call justice? Are “lawyers”, “judges” and “citizens” together bound by a single tradition as the “unifying” source of our prejudicial authority? What if the idea of unity– proposed in the name of a “unifying force”– does violence to the idea of diversity?
It is also not that traditions are eternal, immune to changes. They have evolved across time and undergone numerous improvisations through internal debates. Traditions are always in flux. The element of prejudice in traditions includes caste and gender. Nehru underlines modernity’s critical relationship with tradition succinctly in The Discovery: “Traditions have to be accepted to a large extent and adapted and transformed to meet new conditions and ways of thought, and at the same time new traditions have to be built up.” Traditions are not sacrosanct.
A flag belonging to a tradition also has a colour to it. Traditions, among other things, are also a display (and play) of colours. The colour of tradition is a singular colour within a diversity of colours. Can it also colour the law? Are the laws of the world (especially that of secular states) coloured by the mystical force of authority? The blind/ed figure of the law gives the impression that the law is also colourblind. Justice, we understand, has no colour. Is it just a foundational myth of the law’s representation of itself?
To end, I shall invoke a line from Jacques Derrida’s essay “Force of Law: The Mystical Foundation of Authority” (1994), the force behind my meditation: “To address oneself to the other in the language of the other is both the condition of all possible justice.” The ethical condition of modern (secular) law presupposes disputes between people following different customs and traditions, therefore different prejudicial authorities. In a similar manner, the law of the nation presupposes a society of minorities. The idea of unity, in this sense, presupposes the existence of diversity. It makes the law bound to the history (and possibility) of many customs, or traditions, that resource the “unifying force” behind the idea, and spirit, of justice. The force of law of my tradition is paradoxically limited and expanded by the presence of the force of law of the other who belongs to another tradition. It is the other that brings the fundamental predicament to law and justice: How to be just to what is prior to – and yet becomes the basis of– unity?
The law must arbiter between our mutual prejudices. It must be above what limits us.
The writer is the author of Nehru and the Spirit of India. He is working on a book on Gandhi.
