The spirit of laws and the spirit of the times

The German philosophers of the 19th century were remarkable thinkers. Amongst the many concepts they gave the world was something they called zeitgeist, or “the spirit of the times”, which underlies the moral, cultural, and intellectual direction of the age.

The reason I am recalling these two concepts is a lecture I heard in 1970 at the Delhi School of Economics. I don’t remember who the speaker was but I do recall that she was defending the social control of productive assets. The immediate provocation was the nationalisation of banks by Indira Gandhi the previous year.

The burden of the professor’s speech was that socialism was the zeitgeist or the spirit of the times and that it enjoyed practically universal approval. She was proved right when in 1971 Indira Gandhi won the general election and in 1972 all the Assemblies.

Socialist ideas had been around in India since the late 1930s, when the Congress adopted them. These ideas lasted till about 1990, when an equal and opposite zeitgeist took hold in favour of private enterprise.

The popular name for it became the Washington Consensus. India became an early adherent but a tardy adopter.

The other spirit

The purpose of this article is not, however, just to remind readers of the notion of zeitgeist. It is to ask, firstly, was the Indian zeitgeist till 2014 truly secular, and, secondly, whether it has now changed as completely as the economic spirit changed in the 1970s.

What did we understand as being secular then and what do we understand as being it now? Indeed, if the two versions are different, which is the “better” one?

Since there can be and, indeed, are several different opinions on this, it’s worth attempting a simple test: Do our laws, as opposed to social practice, discriminate against some communities in a manner similar to the systematic discrimination we have seen against the private sector between 1956 and now? Remember: Such discrimination was consistent with the zeitgeist then.

In other words, the test I am proposing is one of law: Are national laws discriminatory? Let us also be clear: No one can argue that his or her support for discrimination is ok because it’s consistent with the spirit of the times.

The point is this: It’s not the zeitgeist that’s important. What is important is the fact of discrimination that it induces.

Thus, if socialism had ordained discrimination against private enterprise, never mind the grounds on which it did so, it was discriminatory nonetheless. So those who supported that discrimination — and still do — can’t complain about other forms of discriminatory laws.

Nor is a mere apprehension of discrimination enough to start off grumbling. Parliament must pass discriminatory laws — as when the socialist zeitgeist persuaded governments to discriminate — before the grumbling can be taken seriously.

Spirit Vs law

And this is where we run into an intractable problem: Can laws and legislation ignore the zeitgeist?

It is to solve this problem that the Supreme Court has been consistently intervening to prevent discrimination and has even invented the concept of the “basic structure” of the Constitution. The concept tells governments that they can pass any law they like as long as the basic structure is not violated and, further, that it is the Court that will decide whether a law is violative or not.

Governments don’t have a free pass, therefore. The test is so broad that governments have been very reluctant to take it. They know they can’t get away with discrimination. That’s why, if you recall, there is occasionally talk of a “committed judiciary”. Indira Gandhi had called for it first, in 1974.

Anyway, today, worldwide, for a host of good and bad reasons, the zeitgeist is largely anti-Muslim. Those political parties that have exploited this, either overtly or covertly, have done well. India is not an exception to this.

If a political party wins a mandate on a promise that captures the spirit of the times, can it then not pass laws that give effect to that spirit? Think AAP.

India has not passed any discriminatory laws. Even banning triple talak has not been negatively discriminatory.

But the quest for a ban on hijab is, because what a woman wears is only her business, not anyone else’s, including of the Muslim clergy. Had the question been presented as one of personal choice rather than an Islamic requirement, there wouldn’t have been a problem.

The antidote to zeitgeist-induced discrimination is not group action. It’s the freedom of individual choice because there will never be a zeitgeist that limits it.