The limits of law: Sabarimala and the fallacy of trying to rationalise belief

A couple of days after reading a write-up on the arguments of the Central government in the Sabarimala reference case before the Supreme Court, I was to remember a presentation in a seminar eight years ago.

A scholar was referring to the peculiarity of people in his country, wherein they rampantly avoided the payment of tax but were generous in the payment of tithes. On one hand, the command of the sovereign backed by sanction is habitually disobeyed by the subjects, while on the other hand, there is a habitual subordination by the same subjects to beliefs.

Law and belief influence people in different ways. The former relies on logic and reason for its acceptance. Whereas the latter involves just acceptance, there is no cope for logic and reasons. To put it simply, it is a "belief".

The philosophical underpinnings of present-day legal systems have a somewhat recent origin compared to belief-based approaches that have been in existence since time immemorial. Belief-based acceptance was undisturbed by the rationality of law. One could say that beliefs have been enjoying hundreds or thousands of years of solitude.

The attempt of this write-up is to analyse the arguments of the Central government before the Supreme Court as reported by Bar & Bench. Rather than analysing the specific arguments of the Central government, a holistic analysis is attempted.

Logically and historically speaking, the concept of “locus standi" was diluted because the Supreme Court identified that there are people in this country (i) who do not know their rights; (ii) who do not know how to enforce their rights; and (iii) who do not have the means to enforce their rights. Thus, the Court recognised and accepted that a person who comes before it may not be there to protect his own interest, but to protect someone else's interest.

In other words, they were before the Court not for ‘private interest’. In such scenarios, the litigant should establish that he is before court because the person whose interest is affected is prevented from or unable to approach the court.

If the said reasoning is satisfactory, the Court dilutes the concept of locus standi. However, public interest litigation today indicates that these questions have become irrelevant and public interest is not just public interest, but at times publicity interest.

Religion is a bundle of beliefs. The constituents of this bundle is manifested in an integrated matrix of conduct, encompassing personal grooming, dietary habits, attire etc. These aspects are inextricably woven with behavioral norms, rituals and the sanctity of sacred spaces, all of which form a seamless and indivisible way of life. There is not much space for any logical or reasonable analysis of this matrix because it is ultimately a ‘belief’ and nothing more.

Attempting to use law, which is based on logic and reason, to change or verify the appropriateness of this bundle of beliefs is fundamentally flawed. A typical Indian parent’s insistence on a matrimonial alliance based on parameters of character, lineage and socio-economic status often fails when confronted with an individual's personal choice in love. While logic and reason are functions of intellectual calculation, love operates within the intangible realm of the mind and heart.

In other words, "legal analysis" of belief is pointless.

The idea of constitutional morality’ is referred by Dr BR Ambedkar in the context of the Constitution's making. A reading of the same shows that the thrust is on the paramount nature of obedience to the nature of the Constitution. The use of this concept of constitutional morality for interpreting the Constitution should be done vigilantly, keeping in mind the intent of the makers of the Constitution.

For example, Justice Frankfurter of the US Supreme Court had specifically warned diplomat and jurist BN Rau against the use of a ‘due process clause’ found in the American Constitution. Justice Frankfurter hinted that courts would interfere with social welfare legislation if a ‘due process clause’ was used. The US judge also exemplified this with the Lochner Era of American Constitutional History.

However, within three decades of India's independence, our judiciary used interpretive techniques to read in the same due process jurisprudence into our Constitution though it was specifically avoided by the Constituent Assembly and Constitution makers. Whether it is in tune with the concept of constitutional morality or not is debatable.

Neither the legislature nor the judiciary is expected to do anything to alter concepts that are rooted in belief. The constitutional mandate with respect to the involvement of legal norms in the said realm is also limited. The statement of Tajamul Husain in the Constituent Assembly with respect to Article 19 of the Draft Constitution (Article 25 of the Constitution) is relevant:

“I submit, Sir, that this is a secular State, and a secular state should not have anything to do with religion. So I would request you to leave me alone, to practise and profess my own religion privately.”

We must reconsider the paradox of the citizen who grudgingly pays tax but freely offers tithes. This contrast reveals a fundamental truth - human behaviour is often more responsive to the mind than to the brain.

The failure of law compared to another social institution can also be noted here. In India, there is a preference for families as tenants; landlords rely not on the law of the lease, but on the social discipline inherent in family life.

Yet another example is the BBC’s broadcast restriction on John Lennon’s ‘Imagine’ during the 1990s Iraq conflict. It underscored how art can mobilise collective dissent more effectively than political decree. These instances demonstrate that religion, family and art act as potent extra-legal forces that govern the mind.

Ultimately, the legal system should exercise restraint in these domains, as these organic social structures often prove more efficient at regulating human behaviour than the coercive tools of law. These forces manage behaviour with a precision that the legal system lacks.

The law is often better served by maintaining a respectful distance rather than attempting to intervene in such matters of belief. Let the solitude of beliefs be continued.

Shanmugham D Jayan is a lawyer with Vijayaraghavan and Devi Advocates and practices before the Kerala High Court.