SABARIMALA APPEAL: A TRAGEDY OF BLUNDERS

Thomas Gray, an English poet and scholar, coined the phrase: “ignorance is bliss”. At times, though, ignorance can lead to an “abyss of depravity”...in legal argument.

Case in point. The recent judgment of the Hon'ble Supreme Court of India in the Sabarimala Temple case.

The pronouncement has paved the way for entry of all women into the sanctum sanctorum of the temple. It is no doubt a watershed moment in the history of justice in India. While devotees of Lord Ayyappa, the presiding Deity of the Sabarimala Temple, have assailed the landmark verdict, women's rights activists and liberals have hailed it.

Nevertheless, the judgment does represent the nadir of legal presentation and advocative persuasion. Here are seven failings of the battery of legal luminaries that argued the matter.

Hindu Temple: The Lord's Home

ONE: A Hindu temple is referred to as devālaya or devasthāna— literally, 'home of God' or 'abode of God'. As has been held by the Hon'ble Apex Court, the divine spirit descends into the idol/image in the temple upon consecration. From then on, the image of the presiding Deity, a juristic entity under law, is believed to reside in the temple. Devotees then venerate the image through assorted pūjas, ārti, etc., which the priestly class, as intermediaries, perform in the temple.

Thus, the Hindu temple erases the divide between man and the Divine. It serves as a place of communion with Divinity for devotees and provides spiritual bliss and succor to the faithful. It is not a “place of worship (pūja)” for devotees, who can seek audience, that is, darśaņa of the Deity though and receive His blessings by offering prayers and obeisance to the Almighty through the temple priest, or archaka. No rituals, be it seva, pūja, homa, yajna or archana, are performed directly by the faithful, who are mere visitors/spectators within the temple.

Thus, being the abode of the Almighty, the temple precincts are His/Her private space sanctified through rituals and practices based on specific vedās, āgamas, śāstras and sampradāyas.

It is apparent that the temple trustees were unable to convince the Hon'ble Apex Court that the temple is not a public space per se. Neither is it a tourist spot. Hence, entry is a privilege governed by applicable customs and traditions.

No Gender-based Disparity or Discrimination

TWO: The counsels appearing on behalf of the temple trustees ought to have argued that the prevalent practice in question is only age-based exclusion; it is not gender-based disparity or discrimination.

Such age-based exclusions, restrictions, prohibitions and eligibility criteria have always been applied by the State for several purposes, which inter alia include appointments to public offices.

Now, it is empirically established and scientifically supported that while many girls attain puberty at an age as early as 8 years, some women reach menopause at an age as late as 55 years. The median age for menopause among Indian women is believed to be 44 years.

Further, the anatomical and physiological phenomenon of menstruation is not restricted to women alone. It is a medical and scientific fact that menstruation occurs in “intersex humans”, “trans-men” and “pseudo-hermaphroditic men with autosomal recessive congenital disorders due to the presence of Müllerian derivatives.”

Hence, it can hardly be concluded that the practice is discriminatory towards menstruating women, given the lack of scriptural records linking the practice to physiological or reproductive criteria.

So why this brouhaha over the erroneous linking of an age-based restriction with menstruation?

Arbitrariness of the Age Bracket

All the same, the age-group of 10-50 years is arguably and admittedly arbitrary. As much as the age-limit of 32 years applicable to 'general-category' candidates appearing for the UPSC examinations is!

Further, Articles 14 and 15 impose duties on the State and not on religion, which is 'separate' from our State under our constitutional framework and the 'secular' principles enshrined therein. Therefore, the contention that the age restriction at Sabarimala is ultra vires the Constitution is a red herring, be it on legal or moral grounds.

Rights and Privileges of the Deity

THREE: It is well-settled that rights can be enjoyed by one and all without depriving, derogating or diminishing the rights of others. It is a fact that a large section of Hindu society, both male and female, revere Lord Ayyappa as a “naiśțika brahmachāri” and support the continuance of the prevalent customary practices, which are neither pernicious to the interests of nor detrimental to the well-being of other devotees.

Indeed devotees in favor of sustaining the traditional practices at Sabarimala Temple too are equally entitled to freedom of conscience and the right to freely practice their religion. They too have a right to adhere to rituals and express their devotion within the sanctum sanctorum and a religious milieu that is devoid of women of a particular age-group, arbitrary or otherwise. No coercion or compulsion can be imposed on them in issues of individual faith.

Of course, those who believe that such customary practices in the temple of great antiquity are abhorrent or repugnant, have no locus to demand any reformation of a matter pertaining to personal choice and private preference.

Nonetheless, non-believers must be freely allowed to form a separate sect or schismatic denomination of Lord Ayyappa worshipers and set up religious institutions that impose no restrictions on its faithful.

Arduous Sabarimala Pilgrimage

FOUR: Further, for many devotees, observance of piety, celibacy and abstinence over 41 days culminates in the visit to the Sabarimala shrine. This crucial facet was not forcefully brought out during arguments.

An essential aspect of the observances is that the darśaņa of Lord Ayyappa is to be completed in a certain religious context and traditional setting that is devoid of women in the said age-group. Hence, the presence of such women in the temple precincts would hurt the religious sentiments and violate the fundamental rights of the many devotees observing the elaborate 41-day ritual with great zeal, fealty and asceticism.

In fact, female worshipers with true devotion for and great reverence to the Deity would honor tradition and refrain from entering the sanctum sanctorum. After all, devotees are those who owe allegiance to, respect the sanctity of and protect the dignity of the Deity. Such persons surely would abide by applicable customs, practices and traditions.

It is only agenda-driven atheists, heretical activists and meddlesome mischief-mongers masquerading as devotees of the Lord who would want to spoil the holiness of a 41-day, penance-like ritual and pilgrimage undertaken by millions of Hindu men.

Fundamental Rights of Devotees

FIVE: The fundamental rights delineated in Article 25 of the Constitution are no doubt available to 'all persons'. But, the rights are to be enjoyed and exercised without hurting corresponding rights of others.

Thus, the counsels failed to establish that those rights do not extend to the right to worship inside a temple, which is the exclusive domain/privilege of the designated priest(s) acting as an intermediate agent or empowered attorney for appropriately chanting mantras and performing rituals.

The entry to the holy shrine is indeed an integral aspect of the 41-day “vrittham”, which comprises of pious observances and devout abstinence. The arduous pilgrimage to and the final, ceremonial entry into the sanctum sanctorum are essential elements for the segment of Hindus, denominational or otherwise, devoted to Lord Ayyappa.

Hence, it is ironical for a believer in Lord Ayyappa belonging to the impugned demographic segment to insist on visiting the shrine by not only defying the prevalent traditions, but also denting and denuding the rights of fellow-believers to observe their vows of abstinence. A true devotee of Lord Ayyappa would abide by and subscribe to the applicable restrictions in deference to traditional practices.

Concept of Religious Denominations

SIX: The counsels representing the temple trustees failed to impress upon the learned Judges that the term “denomination” is alien to Hinduism. The Christian denomination is an 'identifier' to an ecclesiastical order and an associated hierarchy of local churches, which consists of congregations of affiliated members. Every denomination has a structured theological organisation with well-defined 'command-and-control structures' and 'distinctive traditions and procedures'. Members, who are inducted into the 'covenant community', profess the denominational faith and observe its practices.

The relationship between the denomination and its devotee, that is, the member, is one-on-one. Thus, Christian denominations are mutually exclusive. In other words, Christians belonging to one denomination owe allegiance exclusively to that denomination, despite being monotheistic.

Contrarily, every Hindu enjoys an inclusive, 'many-to-many' relationship with the Creator and His Embodiments. The underlying polytheistic fabric permits every Hindu to be devoted simultaneously to several Deities and frequent religious institutions belonging to diverse denominations. The religious freedom and flexibility permits Hindus to follow disparate rituals, usages, customs and practices with minimal denominational encumbrances.

Hindu Temples and Denominations

Past judicial pronouncements have straight-jacketed Hinduism by force-fitting it into a Christian paradigm. Nevertheless, if the Christian concept of “denominations” were to be imposed on Hinduism− the interpretation of the Hon'ble Apex Court in the Shirur Mațh and SP Mittal judgments serving as the gold standard− then, not just monastic orders such as Hindu mațha, but every temple would constitute a denomination.

The rationale is simple.

Each Hindu temple: (a) is designated by a distinctive name; (b) has a group/collection of (devoted) individuals with a common faith, that is, a system of beliefs, doctrines and practices based on the consecrated Deity therein, which they regard as conducive to their spiritual well-being; and, (c) consists of a spiritual/religious organisation comprising of priests, trustees, benefactors and administrators.

When viewed through the prism above, the Sabarimala Temple sure enough is a “denomination temple”. It is the polytheistic nature of Hinduism though that permits us to be inclusive and non-discriminatory in our devotion towards multiple Deities.

Secularism and Constitutional Morality

SEVEN: It is well-settled in law that “secularism” is about the separation of State and religion. Accordingly, government has to not only be non-religious, but also accord equal, non-discriminatory status to all religions.

It also widely-accepted that the judicial apparatus is one of the three branches in the 'trias politica' state.

Hence, if the lofty ideal of 'secularism' enshrined in the Constitution is to be realised/adhered to in India, the judiciary too must refrain from interfering in religious affairs, particularly practices that do not derogate, deprecate or depreciate the rights of others. Any devotee taking exception to the prevalent faith, custom and tradition is under no coercion, obligation or compulsion to follow the same.

It further follows that the judiciary is indeed duty-bound to uphold constitutional morality and legitimacy by strictly and completely adhering to the tenets of “secularism”.

Final Observations

It appears from the ratio decidendi in the Sabarimala judgment that legal submissions in favour of retaining the demographic restrictions at the temple were weak and pedestrian, if not myopic. It surely would have been worthwhile to pursue the jurisprudential angles detailed above.

But, would that have altered the outcome of the proceedings?

I surely don't have the answer. Do you?

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!