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Logical Fallacies in Public Discourse and Law (EPW)

Using the framework of informal logical fallacies, this article looks at the link between prejudices and certain contemporary social debates involving women and gender, and analyses how the law accommodates these prejudices.
Surya Binoy (suryabinoy@gmail.com) is an author and lawyer based in Kerala.
We are all susceptible to prejudices as we are to diseases. We can only hope for better resistance, not perfect immunity, from either of these influences on our lives. A part of such resistance emanates from our recognition of the power of prejudice, which I define as preconceived notions of credibility, merit, character or culpability of another. This article looks at the link between prejudices and certain contemporary social debates involving women and gender, and analyses to what extent the law accommodates these prejudices.
The analytical framework I use is that of informal logical fallacies. Informal fallacies, as distinguished from formal fallacies, are so because of their content as well as form. In the author’s view, most informal fallacies that are recurrent in our discourse on women and gender are products of those prejudices that have a chance of shaping a person’s thought process. They begin to operate even before her training in thinking in terms of academic training or her professional and social exposure steps in. There may be disagreements with this simplistic take on the origin of informal fallacies.
In the context of law and social issues, the framework of logical fallacies is convenient because both law and logic seek to arrive at definite conclusions flowing from available premises. When the premises are linked to a conclusion that is not logically or legally available, fallacies are the results. However, when the law in its capacity to reflect the dominant stream of social thought accommodates logically fallacious arguments, what remain are illogical conclusions, but they are no longer extralegal.
In Public Discourse
The controversy surrounding the book Holy Hell: A Memoir of Faith, Devotion, and Pure Madness (Tredwell 2013) led to interesting spectacles. The book tells the story of Gail Tredwell’s association with Amritanandamayi, a person variously regarded as a god, a mother-figure, a spiritual leader or a philanthropist by many across the globe. In the book, the author noted that her journey from a young follower to the head-disciple was that of enslavement, not of enlightenment. She alleged that she was repeatedly subjected to sexual harassment at the ashram. The book also accused the Amritanandamayi Math of financial mismanagement and fraud with respect to the vast funds that were at its disposal.
The responses to these allegations took several forms. A sizeable number of Keralites who are active on social networks either posted certain translated excerpts from the book or used the opportunity to attack the very institution of god-men and god-women. Many demanded that the Math answer these allegations or that the government initiate an inquiry into the truth of the matter. Supporters of the Math mounted counter-attacks. A blog was created which published many letters from several present and former disciples of Amritanandamayi, along with statements in support from prominent persons, including jurists, political workers, actors and writers.1
The correctness of these allegations is beyond the scope of this note. In any event, the book helps one demonstrate how several of the arguments that were raised in its context were not targeted at the content of the allegations, but at several surrounding factors that are irrelevant to an inquiry into the true state of affairs. Identifying the fallacies underlying such arguments may reveal certain recurrent trends in public discourse in India when a woman is involved or when gender is at its core. This note seeks to show that these fallacies have also been institutionalised to a considerable extent.
In the author’s view, the proliferation of these fallacies can be attributed to three reasons. First, many of these fallacies arise from prejudices that society at large harbours in relation to women and the relevance of their personal history to their credibility. For any marginalised group, being at the receiving end of prejudices is an important layer in their suffering. A fresh controversy presents the dominant section with a platform to parade their prejudices as arguments. Second, fallacious arguments save the arguer the trouble of answering the original argument. As the prejudices of which these fallacies are born are largely shared by vast sections of the majority, it is easier to appeal to such notions and divert their attention than providing a coherent, logical response. Third, a logically fallacious argument is most difficult to counter for no other reason than its inherent lack of logic. One informal fallacy may be used to counter another and the real issue may get sidelined.
From these angles, this article is but an introduction to certain terms of logic that may help one shape her thoughts on several ongoing debates.
Poisoning the Well
As the name suggests, this fallacy manifests itself when a pre-emptory attack is mounted on the arguer, even before the argument is made. This has the effect of poisoning a well as the water drawn from it can no longer be put to use.
The fulcrum of the debate on Amritanandamayi’s case rested on a demand for investigation into the affairs of the Math. This demand was based on the social and economic position that the Math and its sister-concerns occupy in Kerala. Its contours were not exclusively shaped by Tredwell’s book. The demand for investigation emphasised the responsibility that an institution of the Math’s stature owes towards the people on whose trust and monetary contributions it relies.
Some supporters of the Math did not concede to this demand on the premise that Tredwell, a white woman, lacked authenticity to be a cause for this demand. Some observed that as a product of western civilisation, Tredwell could not be expected to appreciate the worth of the spiritual guidance that Amritanandamayi had benevolently bestowed upon her. According to them, that civilisation, whose emphasis lay on material joys and momentary pleasures, had irreparably clouded Tredwell’s vision. This line of argument rules out the significance of any debate on the affairs of the Math in the context of Tredwell’s book because the accuser is a “westerner”. It also flows from the premise that a woman who places emphasis on material values cannot validly comment on the pursuit of any “higher” goal.
The spokesperson for an organisation named Hindu Parliament chose to characterise the perceived sentiment against the Math as part of a propaganda agenda orchestrated by “bad Muslims” and “extreme-left”. Some responded to this argument by an equally fallacious attack aimed at that person’s moral integrity.
On social networks, some were seen to opine that Muslims and Christians could not comment on a Hindu spiritual leader, unless they cleansed their own religions of Imams and priests who were alleged to have sexually abused women and children. This fallacy is better known as tu quoque which translates as “you, too”. It is based on the fallacious premise that one wrong somehow renders another one right, or pardonable at the least.
The lens in both cases has been shifted to the source of the arguments, even before it focuses on the realm of arguments. In a society that is increasingly exposed to the rhetoric of reclaiming the glory of its ancient civilisation, this generalised attack on another civilisation is not an accident.
What is more dangerous, perhaps, is that the “fallacy of the poisoned well” has already been internalised and institutionalised. In Bharwada Bhoginbhai Hirjibhai vs State of Gujarat,2 the Supreme Court correctly observed that the testimony of the complainant in a rape trial can conclusively prove the factum of rape, even if it is uncorroborated, if it inspires the confidence of the Court. The Court, however, went on to present a comparison between the psyche of an Indian woman and that of a woman from the West to show how the testimony of the former must be placed at a higher pedestal of credibility than the latter’s.
In other words, while an Indian woman has no reason to lie about rape, a woman from the West has plenty, conditioned as she is by her civilisation. The apex court observes of an imaginary woman from the West whom it considers typical, “She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by fantasising or imagining a situation where she is desired, wanted, and chased by males.”3 The resemblance of this observation to some of the allegations targeting Tredwell’s credibility is striking.
In recent years, many reports of rapes and sexual attacks on women who had travelled to India from the West and other parts of the world have emerged. If lower courts were to follow the letter and spirit of the judgment of the apex court in evaluating the testimony of the complainant, the water from a well that is poisoned has already contaminated the outcome of these cases. As a matter of fact, this case is still widely cited with approval, even though the Report of the Committee on Amendments to Criminal Law (known as the Justice Verma Commmittee) emphatically criticised its approach.
Fallacy Ad Hominem
This fallacy involves attacking the personal trustworthiness of the arguer in an attempt to rebut her arguments.
Several letters that appeared in the above-mentioned blog repeatedly referred to personal mishaps and behavioural faults of Tredwell that their authors claimed to be privy to. They were not necessarily related to her capacity to be truthful, but often mentioned her “sexual exploits” and affiliations with men. The frequency with which a woman who alleges sexual harassment or gender-induced oppression is attacked, based on her personal life, the clothes she wears, and her presence in public, is disturbingly consistent. The line of logic that suggests that a woman who does not conform to all the norms of patriarchal society has a propensity to lie and therefore her version shall be discredited, is firmly rooted in the fallacy ad hominem.
Its similarity to another attack that was mounted against a book, again, is striking. The legal notice4 sent by Dina Nath Batra to Wendy Doniger and Penguin Books, in connection with Doniger’s book The Hindus: An Alternative History reads:
That You Noticee has yourself stated at page 15 that your focus in approaching Hindu scriptures has been sexual.
“The Sanskrit texts [cited in my lecture] were written at a time of glorious sexual openness and insight, and I have focused precisely those parts of the texts.”
So the approach of You Noticee has been jaundiced, your approach is that of a woman hungry of sex.
Extremely irrelevant and vague allegations such as these are popular because of their very capacity to appeal to a prejudice and fear that many share with the arguer. From the point of view of logic, equally interesting is the leap from the premise of a researcher’s criteria in selecting the subject-matter of her study to a conclusion on her personal taste for sex.
That this fallacious approach has come to be institutionalised and is afforded the sanctity of law is also widely accepted and well-documented. This was largely following the decision of the Supreme Court in Tuka Ram and Another vs State of Maharashtra,5 a text-book example of the fallacy ad hominem. The Supreme Court quoted the following paragraph from the verdict of the sessions court and, in a short decision, agreed with it:
The crowd included her lover Ashok, and she had to sound virtuous before him. This is why – this is a possibility – she might have invented the story of having been confined at the Police Station and raped by accused No 2…Mathura is habituated to sexual intercourse, as is clear from the testimony of Dr Shastrakar, and accused No 2 is no novice.
The sessions judge had concluded that what had transpired between Mathura and the accused in that case had to be “sexual intercourse”, not “rape” partly because Mathura was habituated to sexual intercourse (a conclusion based on the infamous “two-finger” test). The Supreme Court echoed the sessions court in calling Mathura’s testimony a “tissue of lies” and finally overturned the conclusion of the high court that mere submission on part of Mathura to persons who stood in a position of authority cannot be termed rape.
This is a fallacy because the truth of the accusation may not necessarily have any correlation with the accuser’s background, yet it is firmly entrenched in the judicial dicta on rape. After the Mathura case, the state took steps to remove this fallacy from the course of evidence in rape trials by way of the Criminal Laws Amendment Act, 1983. This legislation did not succeed in altering the narrative of “loose morals” and “easy virtue” in cases of sexual assaults. The Criminal Law (Second Amendment) Act, 2013 has now added Section 53A to the Indian Evidence Act, 1872, which states that in a proceeding relating to rape or sexual assault, where the question of consent is in issue, the victim’s character or previous sexual experience with any person will be irrelevant. One may hope that this amendment is a step towards de-institutionalising the fallacy ad hominem.
The Tone Argument
This line of fallacious argument does not question the content of an argument, but only disagrees with its tone. It creates the impression that the person who rebuts the argument would agree with the arguer, if it were not for her tone.
Those who occupy a position of influence or power over another seem to resort to this fallacy quite often. This is probably because the arguer’s tone is indicative of a lack of submission or refusal to acknowledge the other’s position or power.
The tone argument is by no means infrequent in our lives. In 2013, a lawyer of the Kozhikode bar wrote a post on her Facebook timeline, ridiculing certain patently sexist remarks from male lawyers, young and old. The Calicut Bar Association issued a notice to her to show cause as to why she should not be suspended for these remarks. Even though she expressed her inability to appear for the hearing before the association on the appointed date, the association decided to suspend her at its general body meeting, after she refused to apologise. That our courts are not gender sensitive is by no means a doubtful proposition. This was stated by Indira Jaising, Additional Solicitor General, in an open letter that she wrote to the Supreme Court.6 Notably, these remarks did not invite any attack from the lawyer “fraternity”. The lawyer who was suspended from the Calicut Bar Association had only made a similar observation, albeit in stronger tone and language. It is evident, therefore, that the association did not have a problem with the content of her arguments.
This fallacy has come to be institutionalised too. Section 66A of the Information Technology Act, 2000 is often used to frame persons based on their Facebook posts. It is indicative of how the state condones and encourages the tone argument in public life. The section targets messages sent over an electronic device, if they are grossly offensive or are of a menacing character. It also targets messages that can cause annoyance or irritation, if the author knows its content to be untrue. Owing to its very wide scope, complaints against perfectly legal strands of criticisms alleging them to be annoying or offensive to certain members of the society are frequently seen entertained. In Amritanandamayi’s case, even before the police conceded to register a case against the Math, there were cases registered against those who criticised the Math. This shows that the offence did not have any link with the truth value of the criticism, but with their tone.
Conclusions
We are all guilty of fallacious arguments, and perhaps our imagination, literature, and art are only richer for that. Yet, it is problematic when the state accepts and promotes fallacious arguments in the public sphere as shown above. These are not merely accidental slips, but are active tools in perpetuating prejudices. Biased arguments and intolerance towards dissent that would have otherwise been deemed worthy of protest are now easily glorified as a valid resort to legal machinery, as we had seen in debates surrounding Doniger’s book. Besides, if the legacy of our legal system and jurisprudence must survive the test of time, the minimum threshold of validity they must pass is that of logic.

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