Counterpoint

Why is it difficult to defend tradition and autonomy within the Indian constitutional state?

The jallikattu and Sabrimala debates reveal that we have failed to bring about a public discourse where cultural arguments are addressed on their own terms.

An interesting feature of the divisive debates on practices like jallikattu, meat-eating, temple-entry and so on is the near absence of nuanced arguments for the defence of cultural traditions. As most of these practices are argued within the framework the Indian constitutional State, it is useful to examine the conceptual framework or the patterns of thought within which cultural issues are raised and resolved by the Indian State.

Absolutism of State power

To start with, it is important to remind ourselves that modern State power is organised to exact absolute authority over all contending nodes of social and cultural power. This of course does not mean an absolute subordination of religious and cultural practices to State power as the Indian Constitution grants religious and personal liberty, implying a degree of autonomy from state interference.

However, as with practices like Jallikattu and exclusion of women form the Ayyappa shrine at Sabarimala, it is only too apparent that it is the State’s exercise of sovereign power that ultimately draws the boundaries of religious and cultural autonomy. Here too there is no reason to believe that the Indian State cannot draw the boundaries of cultural practice in ways that are sensitive to tradition. However, as it turns out, the state’s identification and resolution of religious and cultural issues flounders on the following counts.

The search for truth

Take the case of meat-eating which has sparked nasty and brutal conflicts over the last few years. The practice has expectedly been defended by those communities who consume meat, especially cattle, as part of their religious freedom. However, when the Indian judiciary in particular have been faced with these claims by Muslims and Christians, they have dismissed them on grounds that cattle slaughter and consumption does not form an essential doctrinal tenet of these religious traditions. The severity of this demand has even allowed courts to dismiss many customary practices as mere superstitions.

The problem here is not that the court acts as a theologian, which it will in some sense in any modern state while drawing boundaries, but that it demands that a practice be established to be part of the religious truth of a community. That is, that it demands a relationship of truth to be established between practice and doctrine. However, this demand almost always misrecognises the worth of a custom whose value is generated over generations through repetition of practices within a cultural milieu. In other words, the logic or the foundation or value of practice is seldom truth or doctrinal foundation but pre-existing practice and the re-creation of a cultural milieu within which a custom is practiced.

Understanding traditions as cycles of practice is deeply ingrained in the social intuitions of almost all religious and cultural traditions in India. Even so, it is perhaps true that Islam and Christianity have a tendency to speak of practices in terms of essential doctrinal truths. However, in the case of the ‘Hindu’ traditions it has been particularly difficult to speak of them as containing any one essential doctrinal truth. Nonetheless our entire legal and political discourse is structured around the search for the doctrinal truths underpinning these varied religious and cultural traditions. In turn, cultural traditions of meat-eating or vegetarianism are re-presented in state institutions as practices that must be established to be true on the touchstone of religious doctrines. This legalisation of religious and cultural practices as doctrines misrecognises the way in which many Indians experience tradition and comes in the way of defending cultural practices in terms of the cultural contexts in which they acquire social value.

Asking for reasons

Understanding custom as practice means that it is, to some extent, shielded from questions that ask for the truths or foundations that underpin its practice. However, this does not mean that custom can entirely float free from the demands of rationality and justification. The problem however is searching for neutral ground to resolve disagreements when a traditional practice appears to some as unjustified, unreasonable or oppressive.

Take for example the case of jallikattu or the refusal of the Ayyappa temple to permit the entry of women of a certain age. In both these cases, it is not that the defenders of traditional practice seek to escape a reasoned defence of their position. Thus, it is pointed out that the custom of excluding women at Sabarimala applies only to that particular Ayyappa temple and no other, and also that the temple does not discriminate among any other devotees seeking entry. In the case of Jallikattu, the organisers of bull-taming events claim not to oppose regulation to prevent cruelty but only an absolute embargo on the practice itself.

In both cases opposing arguments asking the state to exercise its sovereign powers over such practices are unyielding. Feminists argue, for instance, that the denial of entry into a temple for women of a certain age forms part of the structure of patriarchy and distort the constitutional promise of equality. Animal rights activists make the case that bull taming is an intolerable cruelty, some going as far as to argue that the cruelty involved in jallikattu are of a piece with chaining a pet dog to a post. Arguments of this kind are unlikely to be able to reason with those that are made in defence of tradition but, more importantly, they also edge out stories and narratives about customary practice as legitimate subjects of public discussion.

Legalism might be all that one is left with, but if courts and legislatures themselves are not particularly sympathetic to arguments for traditions, the resort to law might just be another route to sideline arguments arising from religion and tradition. Once again, the argument for culture must not be taken to be a route to defend objectionable practices like untouchability or sati but that debates about tradition need to be addressed and resolved through culturally recognisable idioms.

From the perspective of traditional practices, the challenge of reasoning through controversial practices is to first think of ways of enhancing the autonomy of communities in relation to traditional practice. As these practices are nested within modern State power, this is possible only if cultural autonomy is viewed not as fragmenting sovereign power but as enhancing its authority through the allegiance it secures from traditional practice. In addition, for the fragmentation of power to be viewed as enhancing State authority, the problems of traditional practice must not produce a social and political stalemate when controversial practices are at stake.

There are no immediate solutions for this enhanced cultural autonomy in ways that dissolve stalemates, except to draw on social intuitions. Thus it might be possible to cast State intervention in matters of Dalit temple entry as qualitatively different from intervention in the local peculiarities of one particular temple such as in Sabarimala. However, the challenge for a more systematic defence of traditional practices is to develop political argumentation based on these sorts of intuitions and yet engage the concerns of different actors in contemporary controversies.

The road ahead

Therefore the challenge that traditions pose to the State practice is twofold. First, how do we fashion a space for cultural autonomy within the sovereign framework of the Indian constitutional state? And second, how do we bring about a culture of public debate where cultural arguments are addressed on their own terms while at the same time being mindful of the oppressiveness of extreme and absurd practices?

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