SIBALISMS AND THE SUPREME ART OF DUPLICITOUS ARGUMENTATION

The Merriam-Webster Dictionary defines “Syllogism” as “a subtle, specious or crafty argument.” Such arguments are laced with fallacious or sophistic reasoning. Senior Congress leader and learned lawyer, Mr. Kapil Sibal used all his legal acumen, erudition and craftiness to extend arguments in the “triple-talaq” hearings before the Supreme Court of India. His arguments were so over-the-top, silly and syllogistic, that I think we need to coin “Sibalism” as a new word to describe such fallacies.

A compilation of the Top-14 Sibalisms (in my humble opinion) brought out during the triple-talaq arguments follows. I have named and explained the fallacy used in the learned counsel’s reasoning. Hope the list serves as a “1-on-1 Guide of Sibalisms”!

[Note: I have relied on media reports of Mr. Sibal’s remarks to prepare this list.]

1.    On May 11, 2017, Mr. Sibal, Counsel for the All India Muslim Personal Law Board (AIMPLB), told the Hon’ble Supreme Court:

“Triple talaq is a non-issue, as no prudent Muslim would wake up one fine morning and say 'talaq, talaq and talaq'.”

This is a ludicrous argument extended, a quintessential “Sibalism”. Not only does he imply that imprudent Muslim men do pronounce triple-talaq, but he also ignores the possibility of its abuse. Interestingly, the ambiguity/ambivalence towards gender in the sentence construction makes it appear as if Muslim women too have the right to practice it. The attempt is to downplay the seriousness of the issue and attempt legitimizing the practice. The classic “HASTY GENERALISATION” fallacy here is a tenuous inference on Triple Talaq based on an observation about a section of Muslims, namely, those who are prudent.

2.    On May 16, 2017, the Learned Counsel is report to have stated:

“The point is once you start interfering in it, where do you go? ...Consequences of this are enormous…We can’t even imagine the consequences”.

The “fear mongering” in the argument is typical of the “SLIPPERY SLOPE” fallacy, wherein Mr. Sibal has warned of the small first step of the Court “interfering in triple-talaq” could culminate in “significantly negative consequences”. Fortunately for us, the snowball effect though is not spelled out in black and white as a threat though. Thank God for small mercies!

3.    On the same day, that is, March 16, 2017, he posed in his submissions:

“Why is the Centre so keen to raise doubts about the constitutional morality of Muslims' faith in the 1400-year-old practice of triple talaq…Who is the government to say that triple-talaq, evolved through social and family norms, is “un-Islamic.”

It is a fact that many Islamic scholars believe that apostasy in or renunciation of Islam is punishable by death. Yet, Government (or, rather, the Constitution, to be precise) confers on all citizens the freedom to convert from one faith to another as a fundamental right. Then again, some Islamic theologians quote the Quran to incite Muslims into waging violent Jihad against non-Muslims (infidels). But, any such violence against other religions is proscribed under our Constitution. Passionate rhetoric aside, the Counsel’s attempt in his argument─ a great example of the “RED HERRING” fallacy─ is to divert attention from “constitutional validity” of triple-talaq to the unrelated issue of the powers of government to question “morality of faith” and “conformity of practice with religion.”

4.    Further, on the same day, he went on record to say:

"If I have faith that Lord Rama was born at Ayodhya, then it's a matter of faith and there is no question of constitutional morality. And why should court interfere? Similar is the case with triple talaq."

Courts indeed are seized of the matter on whether Ayodhya is the birthplace of Lord Rama. Be as it may, triple talaq is not a matter of faith, but of customary practice. Various practices (e.g., Dahi Handi, Jallikattu, entry of women into Haji Ali Dargah, etc.) have been repeatedly questioned by the courts. By citing the Ayodhya example, the “FALSE ANALOGY / EQUIVALENCE” fallacy here is to equate the “harmless belief about the birthplace of an avatar of God” with the “practice of triple-talaq, which infringes on gender equality”.

5.    He later proclaimed:

“Sharia is personal law and not subject to fundamental rights.” 

Some Islamic clerics claim stoning for adultery and murder is an integral, mandatory part of Sharia. So, should such inhumane punishment be incorporated in our justice system as a form of retribution and/or deterrence? Nevertheless, the linking of the two assertions, namely, “Sharia is personal law” and “it is not subject to fundamental rights,” in the same sentence is a logical jump, typical of a “NON-SEQUITUR” fallacy. Despite being personal law, Sharia can either be subject to fundamental rights or not.

Further, the argument is a “BEGGING THE QUESTION” fallacy, because it provides the conclusion that “Sharia is not subject to fundamental rights” as a premise.

6.    Then again, it is reported that he averred:

“There should be reform, but it has to come from within the community. Others cannot dictate to us how we should reform. Many customs and usages practised by the Hindus need to be kicked out. But leave it to the communities to do so.”

Oh boy, isn’t the validity of customs and usages tested on the touchstone of the Constitution day in and day out? I mean, haven’t degenerate practices like untouchability, devadasi, dowry prohibition, human sacrifice, etc. been stopped through judicial intervention and legislative reform? Nonetheless, the point here is who has decreed that “reform should come from within”? No statutory norm, constitutional tenet or governmental authority has endorsed or proclaimed such a mechanism for social and religious reform. Mr. Sibal’s anointment of community for driving reform is a fabricated source of authority. Consequently, he constitutes the “FALSE ATTRIBUTION” fallacy.

7.    On the same day, he also alleged as follows:

“When it comes to Hindu law, you protect all customs but when it comes to Muslims, you start raising questions over customs. Like when it comes to Dowry prohibition Act or Guardianship Act you follow customs and protect them…Hindu laws of divorce and succession are more discriminatory than triple talaq.” 

The argument comes across as a pathetic sob story no doubt. Nonetheless, invoking victimhood to gain sympathy is at the crux of the argument, which adopts a “yo-mama” kind of stance to deflect the discourse in the “APPEAL TO HYPOCRISY” fallacy. In this “Whataboutism” though, Mr. Sibal forgets that the Dowry Prohibition Act was actually enacted to counter the widespread practice of dowry in Hindu communities. Consequently, his allegation is wild and hollow

8.    Finally on March 16, 2017, Kapil Sibal noted as follows:

“Many women in the Hanafi School accept it as a valid form of divorce. Majority of the Prophet's companions considered it good…It may be bad, it may be sinful, but women accept it.”

Just because some women accept triple-talaq (indeed there is no evidential or objective basis for the claim) does not mean that it is acceptable to ALL Muslim women. Neither does it indicate that the practice does not infringe on fundamental rights of women enshrined in Articles 14 and 15. The farfetched claim of Mr. Sibal is characteristic of the “FALACY OF COMPOSITION”. Indeed, he has inferred that “all” Muslim women accept triple-talaq, based on the presumable fact that the practice is acceptable to “some” Muslim women.

9.    On the next day, that is, May 17, 2017, Mr. Kapil Sibal submitted as follows:

“Just because a certain section of people was aggrieved by their personal laws, does not warrant a case to seek reform in the area.” 

Preposterous! Mr. Sibal had only declared the previous day that reform must come from within the community. But, with regard to the voices of dissent/reform raised from within the Islamic community against triple-talaq, he makes a complete U-turn by stating that it does not warrant the seeking of reform! Such selective use of facts is referred to as “CARD-STACKING” fallacy.  

10. Further, on the same day he noted:

“The Muslim community is like small birds on which golden eagle preys…the community's nests must have the Supreme Court protection."

An absolute shocker of a remark! Those comments are appropriate for a political harangue, not an argument in a judicial proceeding. What has the size of a section of society got to do with the legality or otherwise of its practices. It is patently clear that Mr. Sibal’s attempt here is to take the focus away from the “lawfulness or unlawfulness of a customary practice” to the “protection of minorities and their interests” in this “STRAW MAN ARGUMENT”, yet another fallacy in his submissions before the Apex Court.  

11. Later on he observed:

“Only 0.4 per cent is practising it (triple-talaq) and this is not a ground to strike it down.”

Hey! Only 0.01 per cent of the population are murderers. So, should they all be given free passes and not punished? Laughable indeed! The attempt at trivializing the practice notwithstanding, it behooves Mr. Sibal to realise that just 0.4% of the population of 200-million Muslims is a humongous number. Indeed, triple-talaq affects almost a million people. It is as if Mr. Sibal is saying: “it cannot be imagined how a practice affecting only 0.4% of people can be struck down. Hence, it must not be struck down.” The reasoning in the statement indeed is anchored in the “APPEAL TO COMMON SENSE” fallacy.

12. Then during hearings on May 18, 2017, Mr. Sibal claimed as follows:

“If there is a consensus among Muslim scholars that it is a practice then it is valid.”

A cursory reading of the ludicrous assertion shows that in Mr. Sibal opinion Islamic experts should concur to declare triple-talaq as a “practice”. There is no need to qualify the practice as “valid”, mind you. That in and by itself is enough to accord validity or sacramental sanctity for the practice. Indeed there is no dispute that the practice exists. However, the controversy is about whether the practice violates the fundamental rights of Muslim women, as enshrined in our Constitution. Besides, there is no consensus per se among Muslim scholars (in particular, Shia clergymen have openly denounced the practice as sinful and invalid). Therefore, the argument falls under the “FALSE AUTHORITY” fallacy. Clearly, Muslim scholars cannot be the arbiters of constitutional validity of triple-talaq.

13. Furthermore, he declared:

“There is nothing in the Quran which says triple talaq is not valid.”

All that I can tell Mr. Sibal is that the Quran does not prohibit the use of loudspeakers for azaan either. Yet, the Apex Court has banned the practice since noise pollution in the wee hours of morning violates the fundamental rights of people in the neighborhood. Similarly there is nothing in the Quran that proves triple-talaq is valid either, for the practice began in 637 AD (as admitted by the learned Counsel himself) after the death of the Prophet. The ingenuity here lies in the implication that somehow there is divine sanction for the practice. Thus, the reasoning is logically flawed since it suffers from the “DIVINE FALLACY”.

14. On that day, he further pleaded: 

“Lots of thing are happening in the society which are protected by customs. The court is not here to decide what is a sinful practice in the world…We are talking about rule of law.”

Guess this is the most hilarious of them all. The Learned Counsel has tied himself into knots with his argument. Sure enough customary practices do exist in society, provided they are constitutional valid. Customs that are ultra vires the Constitution have been held to be unlawful. For example, restrictions on the entry of women to the Haji Ali Dargah have been done away with.  

Indeed it is the duty of the Court to decide whether a certain practice, sinful or kosher or otherwise, is in contravention of fundamental rights and the rule of law. It is admitted that triple-talaq is ‘sinful’. Consequently, the controversy before the Court is whether the customary practice in question curtails individual rights under the Constitution of India, the supreme law of the land. Mr. Sibal provides incomplete details/evidence in his statements. Consequently, his tenuous argument suffers from the “CHERRY PICKING” fallacy.

These “Sibalisms” may not be all. Perhaps more gems can be found if the entire transcript of Mr. Sibal’s arguments were to be scrutinised. And to tweak an expression borrowed from former Minister, Mr. Shashi Tharoor, the list does constitute a “farrago of deceptions, misinformation and outright lies”.

In the interest of not only gender justice, equality and dignity, but also constitutional supremacy, I am confident that the Apex Court will see through the fallacies in the arguments. Indeed, justice shall prevail eventually!

Jai Hind!