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Mainstream, VOL LX No 28, New Delhi, July 2, 2022

Style in Law as Literature: Reflections on the Dissenting Judgement in The Sabarimala Case (2018) | Monika

Friday 1 July 2022

by Monika

Abstract:

The paper argues that when looking at law as literature, the style of writing a judgement is not merely, as can be considered for literature otherwise, a result of the creativity, predisposition or the literary imagination of a judge as an author but is rather circumscribed (if not determined) by the immediate context or the social imagination they speak to and operate in. The leeway to be verbose, the literary flair, the use of rhetoric and sharp convictions are thus all limited by this context. To elucidate this argument, the paper reflects on the dissenting judgement written by Justice Indu Malhotra in the Indian Young Lawyers Association & Others vs. State of Kerala case, famously known as the Sabarimala case. It also highlights how Kalyani Ramnath’s argument that judicial observations and rhetoric can create legal legacies is well reflected in the dissenting judgement.

Sabarimala judgement is a classic case that demonstrates how citizenship rights in a plural country like India needs to be contextualized in the problematic of multicultural accommodation, which gives rise to competing fundamental rights. It also complicates what is understood of feminist judgement beyond the surface dichotomy of positions- in favour or against the rights of women to enter into a place of worship; highlighting how constitutional morality obtains substance from the context in which it is invoked. The primary question, for the purposes of simplification, being answered in the judgement is whether restricting certain group of women from entering a temple be considered as discriminatory against women; a violation of equality and affront to their dignity and right to worship, and thereby un-constitutional.

Kalyani Ramnath, in seeing law as literature, focuses on the resource that judicial observations can be by virtue of being able to speak to multiple audiences. The rhetoric in judicial observations may not have any legal implication in reaching a particular verdict, but might create a legal legacy of its own (Ramnath, 2011). Judges can thus be seen as performing a speech-act: in uttering an opinion or judicial observation they are also ‘effecting’ a phenomenon of infusing new meanings, problematizing new terrains- making the constitution a ‘living document’. In doing so, the role of context becomes crucial, as is clear from Ramnath’s survey of some cases, regardless of whether or not it forms an explicit part of the judgement writing. This context, it shall be argued not only bears upon the verdict and thus on what judgement is written, but also on how a judgement is written. J. Indu Malhotra’s dissenting judgement is an apt demonstration of this.

While J. Malhotra’s arguments in favour of retaining the restriction, was left ineffectual in the verdict, her judgement gives indispensable resources for looking at the issue of multicultural accommodation. Ayelet Shachar, in her book Multicultural Jurisdictions, touches upon this issue that providing more autonomy to a community to practice one’s faith often leads to further vulnerability of the women within that particular group or community. Shachar calls this the “paradox of multicultural vulnerability” (Shachar, 2004). When divorced from its context, many multicultural practices would come across as an affront to the values of equality and dignity and more often than not of women. Then to be true to the commitment of religious and cultural tolerance and respecting diverse practices while also securing equality, dignity and freedom of individuals, it’s important that the context in which certain practices are followed be taken into consideration [1]. J. Malhotra dwells in pages on elaborating on the origin and practice of brahmacharya by Ayappans, the character of the deity, the specific age group of women restricted and the essentiality of this practice.

The dissenting judgement interestingly dwells on, in the beginning in establishing, through both judicial precedents and through references to the religious diversity of India, that it is both a convention and a constitutional duty for the state to not intervene in religious practices in ordinary circumstances [2]. Having established this, the subsequent pages of the dissenting judgement go on to establish why this specific case of Sabarimala is ordinary. To explain this, the judge dedicates pages to explaining the exceptional character (or the extraordinariness) of the temple [3], that for reasons beyond intuitive logic and rationality prohibited women of a particular age group from entering into the temple. When looked at from a viewpoint divorced of the specific context the practice seems to be a practice discriminatory against women, J. Malhotra contends.

Thus there is a burden on the dissenter of not only writing a judgement which strongly presents the concerns of multiculturalism and secularism but also one which convinces of the non-arbitrariness of the exclusion of women by familiarizing the audience of this specific practice in a specific temple in a state down south. Given this, J. Malhotra has hardly the space of writing a judgement with unambiguous or unexplained statements of conviction, as Posner suggests Holmes to reflect or with the literary flair of the kind shown by others on the bench like Deepak Mishra [4]. The immediate social imagination that a Delhi-seated Supreme Court was responding to was a sensibility that saw this century old practice as violative of rights of women. This audience, until told or herself researched, would know little about a specific cultural practice and thus the burden to explain otherwise rests on the dissenter.

Thus, in J. Malhotra’s judgement we see loads of precedents from India and elsewhere; paragraphs and repetitions on the antiquity, exceptionality and the authenticity of the belief [5]. But it is also with this extensive dwelling on the context that her judgement becomes a useful literary text. For instance in writing that “the perils are even graver for religious minorities if such petitions are entertained” [emphasis added], the dissenting judgement emphatically presents a significant articulation of a constitutional vision. It provides a caution that any moral judgement on a distinctive cultural practice ought to observe, in order to ensure that personal moralities and views do not become the sources of misrecognition. An articulation of this sort provides possibilities of social and legal action for minority communities.
Thus certain things are clear in the writing style of J. Indu Malhotra :

J. Malhotra is on the defensive- she needs to explain why a seeming infringement of rights of women is justified; and thus lacks the space for literary flair and indiscriminate use of rhetoric or wit which if not speaking to common sensibility falls flat on the audience. The impact of the rhetorical appeal, as Posner also points out, depends on whether what a judge is saying has dominant purchase. Borrowing the term used by Richard Posner in reflecting on law as literature, hers depicts an impure style of writing [6]. This style of writing, Posner suggests, consists of writing a judicial opinion so as to explain to a hypothetical audience of laypersons why the case is being decided in the way that it is (Posner, 2009). It reflects pragmatic approach or practical reasoning in paying due heed and maintaining continuity with judicial precedents, taking into account the systemic constraints on the exercise of judicial discretion and respects the limitations that constitution and statutory texts places on interpretation. Her writing is both legalistic in its extensive legal citations and re-interpretation of constitutional articles and provisions, but also takes a bolder approach of persuasion without stylistic devices to overawe.

With the risk of oversimplifying, it can be argued that J. Malhotra is limited by the burden of giving a feminist judgement. This brings upon the question: what is a feminist judgement? Can J. Malhotra’s dissent be called un-feminist merely on the grounds that it justifies the prohibition? This would indeed be a simplistic position to take. While J. Malhotra goes overboard in saying that standards of rationality cannot apply to matters of religion, her judgement shows that standards of abstract rationality and a settled constitutional morality [7] cannot be invoked to delegitimize the faiths and beliefs of certain communities. To subject the case to such rationality would be prone to the danger of prejudging a case based on subjective grounds- an apprehension that characterizes the idea of feminist judgements (Hunter, 2010). A feminist approach to judgements does not blindly adhere to abstract rationality and empty rhetoric of women’s rights but rather is essentially driven by a context sensitive approach which recognizes that it is dealing with real individuals and takes a relational, empathetic approach to a distant context.

(Author: Monika is an M.Phil. Research Scholar at the Centre for Political Studies, Jawaharlal Nehru University. Her research interests include feminist theory, sexual violence and law, political philosophy and India’s political economy. She can be reached at monikamuks[at]gmail.com)

References:

  • Indian Young Lawyers Association vs The State Of Kerala, WRIT PETITION (CIVIL) NO. 373 OF 2006, Judgement dated 28 September, 2018 available on Indiankanoon.org, URL: https://indiankanoon.org/doc/163639357 last accessed on 31.03.2021
  • Posner, R. A. (2009). Judicial Opinions as Literature. In R. A. Posner, Law and Literature (pp. 329-385). London: Harvard University Press.
  • Ramnath, K. (2011). The Runaway Judgment: Law as Literature, Courtcraft And Constitutional Visions. Journal of Indian Law and Society, 3, 1-28.
  • Rosemary Hunter, C. M. (2010). An Account of Feminist Judging. In R. Hunter, Feminist Judgments From Theory to Practice (pp. 30-43). United Kingdom: Hart Publishing Ltd.
  • Shachar, A. (2004). Multicultural Jurisdictions Cultural Differences and Women’s Rights. Cambridge University Press.

[1J. Malhotra writes, “Constitutional Morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practise their faith in accordance with the tenets of their religion. It is irrelevant whether the practise is rational or logical. Notions of rationality cannot be invoked in matters of religion by courts”. She also writes, “Permitting PILs in religious matters would open the floodgates to interlopers to question religious beliefs and practises, even if the petitioner is not a believer of a particular religion, or a worshipper of a particular shrine. The perils are even graver for religious minorities if such petitions are entertained”[emphasis added] (Indian Young Lawyers Association vs The State Of Kerala, 2018, paragraph 7.3 )

[2For instance J. Indu Malhotra mentions, “In a secular polity, issues which are matters of deep religious faith and sentiment, must not ordinarily be interfered with by Courts”[emphasis added] (Indian Young Lawyers Association vs The State Of Kerala, 2018, paragraph 6.1).

[3Both the submissions made and the judgement repeatedly alludes to the specific form in which the deity is worshipped at the Sabarimala temple, that is, as a Naishtik brahmachari, which then requires certain distancing from women of a particular age group, the menstruating women. It is towards the preservation of this character of deity and also the sanctity of the pilgrims who undertake the same vow of brahmacharya, it is argued, that the women are prohibited entry.

[4Posner writes of Holmes “After setting a properly serious and deferential tone in the first sentence, Holmes makes a startling accusation—“This case is decided upon an economic theory which a large part of the country does not entertain.” He does not elaborate. The reader is told neither what the economic theory is nor the relevance of the fact (which is not elaborated either) that a large part of the country does not accept it... It places the reader on the defensive; dare he question a statement made with such serene conviction” (Posner, 2009). The question is who can afford this conviction. Posner himself mentions that this kind of rhetoric was not possible if Holmes had taken a position that was not legally defensible or was outrageous.

[5J. Malhotra often reiterates in her judgement about the religious practice being “century-old”. The antiquity of the practice has been invoked throughout the judgement towards various ends, such as, to designate it as a custom and thus having the status of law under Article 13 (3) a of the Constitution; to assert that the belief is “genuinely and conscientiously held” and also to demonstrate the essentiality of the practice as integral to the faith.

[6All judgements in this age are seeking to speak to the people, and in that sense have an audience beyond the courtroom. In trying to persuade their audience and find purchase for their position, they more commonly incline to what Richard Posner calls an impure style of judgement.

[7The petition submitted argued “the term “morality” used in Articles 25 and 26 refers to Constitutional Morality, and not an individualised or sectionalised sense of morality. It must be informed by Articles 14, 15, 17, 38, and 51A.”( Indian Young Lawyers Association & Ors. vs The State of Kerala, 2018, paragraph 2(xii) ). J. Malhotra unsettles a settled idea of constitutional morality. She writes, “Equality and non-discrimination are certainly one facet of Constitutional Morality. However, the concept of equality and non- discrimination in matters of religion cannot be viewed in isolation. Under our Constitutional scheme, a balance is required to be struck between the principles of equality and non-discrimination on the one hand, and the protection of the cherished liberties of faith, belief, and worship guaranteed by Articles 25 and 26 to persons belonging to all religions in a secular polity...” (Indian Young Lawyers Association & Ors. vs The State of Kerala, 2018, paragraph 11.8)

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