The Wheel of Law: India's Secularism in Comparative Constitutional Context

Chapter 1
INTRODUCTION
Ashoka's Wheel
IN 1994 THE United States Supreme Court considered the case of Gregory Johnson, a young man whose fiery protest against the policies of the American government became an occasion for reflection on the symbolic significance of the American flag. The only thing that was certain about Johnson's defiant actions outside the 1984 Republican Convention, however, was that a cloth representation of some aspect of American identity was incinerated in front of a number of passersby, including several who were visibly outraged. Concerning the larger meaning of what was consumed in the flames that leapt from a Dallas, Texas, sidewalk, much was left in doubt.
For some, including Justices William Rehnquist and John Paul Stevens, dissenters in Texas v Johnson, the flag was emblematic of American nationhood and national unity; its desecration was therefore actionable regardless of any message Johnson may have intended to communicate through his act. Thus in the ashes that littered the space adjacent to the convening politicians were the collective memories of a people, of sons and daughters lost in war, and of the principles that gave meaning to their sacrifice. But for others, notably Justice William Brennan for the majority, these very principles--especially the "bedrock principle" of governmental tolerance for offensive ideas--could be consumed in flames only if offensiveness were compounded by error, by misconstruing the symbolism of the flag. Properly understood, the American flag represented the political aspirations of a free people, whose forbearance in the face of extreme and offensive provocation was the appropriate response to even the most flamboyant of demonstrations.1
This disagreement, and the intense emotions accompanying it, may obscure the deeper unity embodied in these alternative symbolic renderings. Both perspectives agree that the flag represents certain principles of American identity that, in turn, constitute the essence of what distinguishes membership in the national community. Indeed, the emotions stimulated by the sentiments of the first are linked to the intellectual content embedded in the second, and are in the end mutually supportive of one another. Thus locating the source of American nationhood in ideas and principles necessitates a substantial reliance on patriotic symbol and ritual; while the principles of republican government have the potential for generating widespread formal support, for most people they are abstractions that may require a more visceral evocation to strengthen political attachment. Where bonds of unity do not flow naturally from such primordial attachments as race, religion, or ethnicity, and are instead an inscribed extension of the human imagination, the national symbol can be interpreted--perhaps should be interpreted--in a way that joins memory and sacrifice to reason and deliberation.2
And so the burning of the flag produces two kinds of outrage: first, at the seeming disregard for a shared past that has shaped the lives of all Americans; and second, at a destructive act whose violence stands in apparent repudiation of the "Republic for which it [the flag] stands." The flag's shapes and colors reference national origins with its thirteen stripes, and signify the essential meaning of the nation in the (now) fifty stars. If, as has been often said, the United States was unique in its having been founded on a set of political principles, it is also distinctive in the mutability of the content of its flag. The addition of a new star to denote each alteration of the physical boundaries of the country suggests (in theory at least) that geography, rather than ascription, sets the salient parameters of national identity. In the more recent past, the heightened correlation of physical expansion, multicultural diversity, and inclusion underscores this symbolism. Who one is should matter less than where one lives and ultimately what one comes to affirm.
More important, there is nothing in the design of the flag that would render its desecration offensive to any member of a particular group within the larger "American" community. Someone, for example, who chose to burn an American flag to express disdain for a religious group would have a very difficult time being understood, unlike Gregory Johnson, whose gesture of defiance was relatively unambiguous in its purpose of calling attention to policies he felt were immoral.3 In fact, Johnson might even have judged them to be so according to standards derived from the very ideals represented by the American flag, in which case the symbolic meaning of his act would have served a dual intent: the invocation of public philosophy to denounce public policy.