The standard foundational myth of political modernity portrays the modern State as the offspring of a linear trajectory of disenchantment. In this narrative, modern States—a Westphalian conception—resulted from a long-drawn process of subtraction: as societies modernised, they shed the baggage of religiosity and theology, of make-believe and mysticism, replacing reverence for the supernatural with the legitimacy of scientific certainty, purifying themselves in Popperian rationalism. The transformation into political modernity, in other terms, required a fundamental shift in the epistemic basis of what the polity held to be true—from the fountainhead of the transcendent and sublime to the headwaters of causality. The idea of an ordered, rational cosmos governed by divine provenance and deliverance thus perished. With the collapse of this old moral and political order, the death of God in our immanent and temporal realm became inevitable.
A central anxiety of the incipient liberal secular State, bereft of a supreme source of moral law, lay in establishing the foundations of its own moral authority. While the State required—as it still does—civic virtue, solidarity and moral cohesion, it faced a dilemma. If it were to guarantee these on the basis of what had largely been a religious ethos, it risked ceasing to be secular. This was particularly so because religious arguments have always been fundamentally non-public, relying on authority in the form of revelation that cannot be shared by all reasonable agents. On the other hand, if the State were to provide only a broad skeletal procedure without replenishing the well of moral capital, it could become vulnerable to illiberal forces. Mere legal compulsion, procedural or otherwise, could never guarantee social cohesion. Yet, the moral fiber of constitutional rights and duties must originate somewhere. States addressed this dilemma by displacing religion with a democratic ethos, inventing a shared language of legitimacy supported by an origin story and a civil religion that were non-denominational, binding the populace to State’s highest ideals. States, in other words, established a mythology around their creation—and often their constitutions—that endowed their existence with meaning and inspired a non-rational emotional response from their citizenry that has sustained them. Such foundational myths need not be historically accurate to be effective. What matters is that they answer the need for significance. They must confer meaning and explain why the nation exists, what it stands for, and what unique destiny it embodies.
State and its machinery, however, are composed of individuals, each with distinct lived experiences, knowledge, conceptions of self and visions of destiny. Some may be religious, with deep convictions. Most possess the innate capacity to view the world collectively and in a detached manner, thinking in terms that transcend immediate experience and interest. Yet each individual remains situated in a particular place, with an irreducibly particular perspective. Nowhere is this tension more evident than in the judiciary. For the judge, it manifests with special force: the judicial role formally demands impartiality, that is, the application of law to facts without regard to personal preference. Yet, the judge inevitably has a perspective shaped by accidents of birth, religion, ideology, geography and time. He does not merely apply rules mechanically or exercise unblemished discretion. He engages in constructive interpretation, determining what the law requires by asking which interpretation presents the legal system in its best moral light. His decisions are inevitably informed by personal psychological predispositions. This alone, however, does not render him prejudiced, for all interpretation proceeds from within a historically determined horizon that shapes what counts as meaningful, acceptable, relevant or persuasive.
Prejudices—etymologically ‘pre-judgements’—are not always obstacles to understanding but can be its very conditions. Legal interpretation, therefore, may be understood as a dialogue between the judge and the text, a dynamic exchange in which each shapes the other. This is not to suggest that religious and secular perspectives are equally appropriate for judicial reasoning. Liberal neutrality does not claim to occupy an Archimedean point outside all traditions but instead seeks a modus vivendi—a practical accommodation amid reasonable pluralism. It identifies an overlapping sphere in which diverse traditions can find common ground without subordinating one to another.
Is neutrality in law then a myth? In any serious case, there will be legally impeccable arguments on both sides and recognised techniques of legal reasoning. These can be deployed to reach a range of conclusions while maintaining apparent fidelity to the law. When a judge confronts a hard case, he considers all interpretations that adequately fit existing evidence and selects the one that is best justified, even if the outcome is shaped by his personal presuppositions. A defensible middle position distinguishes between judges holding comprehensive views and judges reasoning from personal views in their official capacity. On this account, judges may privately hold religious convictions but must publicly justify their decisions using reasons accessible to citizens regardless of their inclinations. Legitimacy thus emerges not only from neutrality but also from the judge’s demonstrated craft in legal interpretation. Constitutional interpretation itself may be viewed as a form of civil religion, with its own texts, practices and authorities. Judges derive authority because they are respected for their skill and standing within this tradition.
Accordingly, the process of judging, even by a deeply religious judge, does not collapse into pure relativism. Some interpretations are better and more faithful than others, even if none can claim complete objectivity. The judge’s task is to reach a balanced understanding that integrates his perspective with the meaning carried by the legal tradition.
Do irreligious worldviews occupy a symmetrically neutral position? The assumption that anyone reasons from a wholly neutral standpoint is untenable. The irreligious judge is therefore no more neutral than the religious judge. Both reason from within traditions that shape their rationality.
How, then, should the dispensation address a misaligned judge? Indian secularism has been guided by ‘sarva dharma sambhava’, grounded in a spirit of toleration among adherents of different religions. Rather than creating a strict divide such as France’s laïcité, India has adopted a framework of principled distance between religion and State. This framework proceeds from the recognition that plural convictions cannot be eliminated without impoverishing public reason. Whatever course is adopted, one must remain mindful that judicial independence cannot exist without liberty of thought.
Saai Sudharsan Sathiyamoorthy | Advocate, Madras High Court
(Views are personal)