There are three ideas in the West about law that are taken as axioms. First, that all societies are founded on law; if they are not, they ought to be. The second is that law teaches and educates a people. The third is their corollary: Only thus do a people become a nation. As far as I know, none has shown their empirical truth or proved that they are logically necessary. But their truth-value is not doubted. When they ruled India, the British followed these axioms: They tried to educate us through law, they interfered in our festivals and social practices and the state tried to educate a barbaric people by enacting “just” laws. Romulus gave law to Rome and made it into a state; Moses gave law to a people and made them into a nation; Mohammed is a lawgiver; so is Manu in India. These ideas are not dated, apparently. Today, all these ideas enjoy the same currency they had during colonial rule.
Our prime minister launches a programme, Swachh Bharat, enjoining the state to teach public hygiene to Indians. Strange, because most Indians are focused on their hygiene: Many bathe three times a day, even more do so twice and most at least once. Most Indians are keen on sweeping the floors of their houses at least once a day. Yet, our public spaces do not enjoy the same attention. Instead of figuring out how and why a hygienically oriented people think about public spaces differently, the state takes upon itself the role of a teacher that should educate an unhygienic public.
A few years ago, I was invited to meet some sadhus at the Swaminarayan temple in Delhi. We were informed that my female students should not accompany me and my other male students, because these sadhus practise strict brahmacharya. My students were aghast at this discrimination against women, which increased when they discovered that women are not allowed temple entry during certain hours when the sadhus come to perform puja. I tried explaining to them that these practices are not directed against women (or anyone else) but that these are the practices of the sadhus as demanded by the vows of strict brahmacharya. They were as unconvinced as my colleagues in Europe: It is clearly a case of sex discrimination. I am sure that it will not be long before someone in India steps to the court, challenging the practices of the devotees of Swaminarayan.
The courts would then interfere in the practices of a people: The Jains are violating the law when individuals decide to leave this world in a way that is respected by a people; the people in Karnataka are not allowed to observe ways of serving in temples and perform old practices because they violate human dignity; the devotees of Shabari Ayyappa discriminate when they do not “allow” menstruating women to join some practices; one must follow Muslims and Christians in terms of dress codes while visiting temples; certain games and practices are not allowed because they inflict pain either on animals or by people on themselves. The list goes on endlessly. Practices of different communities, no matter how old and venerated, should have their foundation in law. Otherwise? They are barbaric, of course.
However, what if the staid ideas from the West are not god’s own truth? What if a society is not founded on law but sees law as a part of society that merely provides a reasonable solution to human conflicts? What if law does not create a nation and that groups become a people precisely because of the colourful variety of their local practices? What if law does not educate people but merely regulates reasonable interactions amongst them? What if law does not dictate how people live or die but allows old customs and traditions to do their work? Surely, positive answers to these questions do not mean that one countenances all practices because they are traditionally sanctioned. What is being asked is something different: Allow reason or law to criticise unreasonable behaviours but do not make either of the two into a foundation for human interaction. What does this statement mean?
Here, the practice of slave-owning is not being defended on grounds of its venerable ancestry. Nor is it being suggested that the practices of a people, which is what tradition is, are immutable. After all, traditional pujas, say Ganesh Puja, have adapted themselves well to modern technology. Human traditions can be criticised if found unreasonable, which means leaving normative judgements behind, or when they directly harm others. But no evaluation, rejection or change of a way of living because, under a specific description, it violates some or another normative principle.
However, going in this direction requires a belief in the validity, acceptability and value of one’s way of living. The way Christians and Muslims dress in their places of worship is not an argument for other Indians not to dress the way they normally do in their temples. How the West arranges its own society is not a knockdown argument in favour of its civilisational priority or primacy, or proof of the inferiority of other ways of organising social life. While this consideration is perhaps abstractly acceptable, the Indian intelligentsia does not obviously believe in its truth. If it did, it is not possible that people seek the intervention of the apparatuses of the state in matters of human practices that carry the stamp of a tradition.
Looking from the outside, my vantage point, the Indian intelligentsia is increasingly imitating the West. However, apart from its thoughtlessness, this move is not as simple as it appears at first sight. When we take over ideas from the West, we must remember to understand them as cultural beings. The culture from within which we look at the West and appropriate its thoughts remains undeniably Indian. As a result, what we think the state is, and why and how we use the courts of law, have to do with the way we, Indians, understand the West from within the framework of our culture and traditions. What guarantees us that this understanding is not flawed? How do we know we are not distorting meaningful ideas in our attempts to follow Western “theories”?