Rethinking Indian Jurisprudence

With Aakash Singh Rathore

A summary by Gauri S Kumar

Professor Akash Singh Rathore is an acclaimed professor, author, philosopher and Ironman tri-athlete. His diverse and international academic experience is supplemented with an impressive bibliography of books that he has authored on law, religion, philosophy and literature and are known for their insightful meditations on the intersection of law and morality. The Philosophy Project was honoured to host Prof. Rathore for a lecture on his book, Rethinking Indian Jurisprudence- An Introduction to the Philosophy of Law.

Prof. Rathore begins by problematizing the landscape of the Indian social sciences and outlines the reasons for why the elite academic coterie in India has been critiqued by marginalised groups.The very advent of social sciences in India is rooted in the imperialist project as colonisers would use ethnographic data to inform their expansionist agendas. Since the Indian academic circles have modelled themselves after the British, the exclusionary treatment of marginalised communities in the status quo presents itself as an inevitability. In fact, the inability of Indian social sciences to contribute concretely to social and political advancement is not merely a structural shortcoming, but an epistemic one.

The empirical data we study, claims Prof. Rathore, are mismatched with the theoretical groundings of Indian academia. The theories at the heart of Indian academic efforts are not created by the social and political realities but are borrowed from other social and political realities and then reapplied to the Indian situation. Using the expression ‘imported theories and local realities’, he further explains the phenomena in the light of the Indian discourse on caste. The unnecessarily veiling of our reality with imported concepts and terms obfuscates the truth of our world, which is deemed irredeemably complex while the actual problem of an inappropriate analytical framework goes unaddressed. This phenomenon serves as the problem statement at the core of his four books, over the course of which he creates a coherent dialogue on its effects on political theory, feminism, jurisprudence, and the minority condition.

Prof. Rathore explains how his book on Dalit Feminism highlights the condition of neglect faced by women and minorities. An appropriated academic lens creates a semantic crisis from the lack of language to capture the various problems minorities face. ‘The manner in which the marginalised then articulate their experiences has to be translated to fit the dominant legal semantic framework which is imported’. His fourth book is a culmination of the critique on social sciences. Rethinking Jurisprudence questions where our jurisprudential ideas come from, where our concepts come from and offers a critical look at the framework at the core of our juridical processes and its relationship with Indian reality.

He also acknowledges that such a project of locating foreign elements in the indigenous is inherently dangerous because of the binary it creates between the ‘Other’ and 'us', perpetuating an ongoing battle between the indigenous and the West. However, the presence of the imposed foreign cannot go unnoticed when small absurdities make us question why borrowed traditions often persevere despite being incompatible with the local. They allegorically present to us a challenge to rethink our own indigeneity but in doing so traps us in an identity battle that arises when we are forced to demarcate the boundaries of the in-group and define the ‘us’ and the ‘them’.

Prof. Rathore notes that in this politics of identity the challenge to stable notions of ‘us’ comes from individuals whose identities represent an intersection of multiple identities- who simultaneously may or may not belong. While the law tries to adjudicate on these contested identities through tools like citizenships laws, these supposedly mitigatory laws are embedded in a highly volatile context, riddled with communal and majoritarian undertones. Furthermore, the centrality of history in this process of self-definition cannot be undermined- ‘Who are we? What bearing does our history have on us? Which era of history are we going to highlight and promote? Which aspects do we bring forward and which aspects do we leave behind?’’ The ‘us’ and the ‘Other’ no longer remain mere philosophical questions but are manifestations of unique historical and political interplay- the influence of which needs to be critically observed and appraised by abandoning the ahistoric lens.

The treatment of what it means to be Indian as an a priori question is observed across Indian politics, law and social movements. It bears resemblance to the Cartesian cogito, the classic attempt at self- definition, which is posed irrespective of caste, race, religion, and gender. Central even to Rawls’ veil of ignorance and the original position is the embodied but unmarked individual who is prior to or devoid of any social and political standings. However, according to Prof. Rathore, when Rawls and Descartes ask these questions from a position of purity, they avoid the reality of the situation since metrics of race, class, and gender influence real life and form identities in the tangible realm. The trend to divorce reality from a priori theories translates into a fractured system that behaves in incoherent and arbitrary ways, such as when courts treat common and marginalised people with contempt. Unfortunately, a system in strong need of jurisprudential regimes and philosophical principles is subject to the whims and fancies of administrators.

Through ‘Rethinking Indian Jurisprudence’ Prof. Rathore makes an urgent plea to feminists and political, legal and juridical theorists to return to the phenomena as they reveal themselves prior to interference of our borrowed schema and flawed analytical frameworks. However, to discriminate between actual and manipulated reality has to be pursued alongside the attempt to view reality in the entirety of its historical, social and material truth. While this is not impossible, it is made difficult by the very agents of reform who get miseducated as easily as they get educated and forego the epistemic opportunity to view people and processes in the context of their history. The status quo requires a revamping of the way that law is taught, and the reform must begin at the very basic level-in jurisprudential classes.

In an interactive session with the attendees, Prof. Rathore provides excellent insight into the mechanisms of decolonising ourselves and our society and the role that privilege plays in the practical solution to decolonising efforts. An informative lecture on challenging and rethinking hegemonic norms within Indian Jurisprudence rightly concludes with a discussion on total revolution and anarchy with the question- ‘is a total revolution worse than a stable reality that sustains extreme oppression? ‘