March 25 of this year, copies of Manusmriti were burnt by reformers protesting against the ill-conceived
installation of the statue of Manu in the precincts of the Rajasthan High
Court. The protestors believed that the text is the defining document of
Brahmanical Hinduism, and also the key source of gender and caste oppression in
In the ensuing controversy defenders of Manusmriti projected it as a
pivotal canonical source of religious law for Hindus.
a somewhat similar fashion, Deepa Mehta's film Water revived an ongoing
controversy about whether those who exploit and downgrade women are following shastric
injunctions. In the course of trying to explain why this debate amounts to
a misunderstanding of the role of the shastras in Hindu religious life,
I commented in a recent TV interview that Manusmriti (and other shastric
texts) have as much or as little authority for Hindus as have Madhusmriti
(my writings) - or for that matter the pages of Manushi, for its
perfectly serious statement was dismissed as "facetious" by many feminists (see
for example, Images of Widowhood in The Hindustan Times of Feb.
19, 2000 by Urvashi Butalia and Uma Chakravarti). Others, claiming to speak on
behalf of Hindu culture, took my comment as an insult to the great shastrakar
himself. These diverse responses indicate that there is a serious
misconception among the modern educated elite over the actual status and role
of the shastras in our religious life and cultural traditions.
confusion is not theirs alone; these common misrepresentations are an
unfortunate byproduct of our colonial education which we slavishly cling to,
even though it is more than five decades since we declared our Independence. We keep defending or attacking
the same hackneyed quotations from the shastras and the epics which,
incidentally, colonisers used for the purpose of creating a new discourse about
these writings. Their inaccurate and biased interpretations have continued to
inspire major misreadings of our religious tenets.*
The Search for
Non-Existent ‘Hindu Fundamentals'
The Englishmen who came as traders in the
17th century were befuddled at the vast diversity and complexity of Indian
society. Having come from a culture where many aspects of family and community
affairs came under the jurisdiction of canonical law, they looked for similar
sources of authority in India.
They assumed, for example, that just as the European marriage laws were based
in part on systematic constructions derived from church interpretations of
Biblical tenets, so must the personal laws of various Indian communities
similarly draw their legitimacy from some priestly interpretations of
fundamental religious texts.
the late 18th century, the British began to study the ancient shastras to
develop a set of legal principles that would assist them in adjudicating
disputes within Indian civil society. In fact, they found there was no single
body of canonical law, no Hindu Pope to legitimise a uniform legal code for all
the diverse communities of India, no Shankaracharya whose writ reigned all over
the country. Even religious interpretations of popular epics like the Ramayana
failed to fit the bill because every community and every age exercised the
freedom to recite and write its own version. We have inherited hundreds of
recognised and respected versions of this text, and many are still being
created. The flourishing of such variation and diversity, however, did not
prevent the British from searching for a definitive canon of Hindu law.
Perhaps more egregiously, in their search,
the British took no steps to understand local or jati based customary
law or the way in which every community - no matter how wealthy or poor
-regulated its own internal affairs through jati or biradari panchayats,
without seeking permission or validation from any higher authority. The power
to introduce a new custom, or change existing practices, rested in large part
within each community. Any individual or group respected within that biradari
could initiate reforms. This tradition of self-governance is what accounts
for the vast diversity of cultural practices within the subcontinent. For
example, some communities observe strict purdah for women, whereas
others have inherited matrilineal family structures in which women exercise a
great deal of freedom and social clout. Some disapprove of widow remarriage,
while others attach no stigma to widowhood and allow women recourse to easy
divorce and remarriage.
The multiplicity of codes was a major
reason for the wide divergence in judgments, interpretations and reports
provided by the pandits appointed to assist British judges presiding over the
newly established colonial courts. Often, the same pandits even gave different
opinions on seemingly similar matters, confounding the judges of the East India
Company. The British began to mistrust the pandits and became impatient with
having to deal with such a range of customs that had no apparent shastric authority
to back them, since that made it difficult for them to pose as genuine
adjudicators of Hindu law. The British were even more nonplussed because they
had a history of using the common law system, based on precedent. However,
given the myriad opinions of the Indian pandits, they couldn't depend on
uniform precedents to make their own judgments.
In order to arrive at a definitive version
of the Indian legal system that would mainly be useful for them, the East India
Company began to recruit and train pandits for its own service. In 1772, Warren
Hastings hired a group of eleven pandits to cooperate with the Company in the
creation of a new digest of Hindu law that would govern civil disputes in the
British courts. The Sanskrit pandits hired to translate and sanction this new
interpretation of customary laws created a curious Anglo-Brahmanical hybrid.
The resulting document, printed in London
under the title, A Code of Gentoo Laws, or, Ordinations of the Pandits, was
a made-to-order text, in which the pandits dutifully followed the demands made
by their paymasters. Though it was the first serious attempt at codification of
Hindu law, the text was far from accurate in its references to the original
sources, or to their varied traditional interpretations.
The very idea of "Hindu" law, in fact, was
as much a novelty as the idea of a pan-Indian Hindu community. In the
pre-British era, people of this subcontinent used a whole range of markers
based on region, jati, language, and sect to claim and define their
identities. Hardly anybody identified themselves as "Hindu" - a term first
introduced by foreigners to refer to people living across the Indus River.
The British lent new zeal in bringing actual substance to the new identity
markers imposed by Europeans on the diverse non-Muslim inhabitants of the
subcontinent. The codification of their so-called "personal laws" became an
important instrument in that endeavour.
This codification still could not put an end to the conflicts of
opinion. The British mistrust of the pandits increased, along with their
frustration at the way they thought they were misleading the court primarily by
favouring the interests of their own caste, and dealing with a spectrum of
customs that were not certified by any apparent shastric source.
The resulting confusions and reports of corruption led William Jones to
work on a more ‘definitive' code of Hindu law, as a reference work for
Europeans in India.
Jones' statement says it all:
"I can no longer bear to be at the
mercy of our pandits who deal out Hindu law as they please, and make it at
reasonable rates, when they cannot find it ready made." (Derret, p. 244)
He was determined that the British should administer to the Indian
people the best shastric law that could be discovered. Jones went on to
translate Manusmriti. It became one of the most favoured texts of the
British. A policy decision was taken at the highest levels in the India Office
to keep this particular document in circulation and project it as the
fountainhead of Hindu jurisprudence, for the purpose of perpetuating the
illusion that the British were merely enforcing the shastric injunctions
by which Hindus were governed anyway, and that they had inherited the authority
to administer this law.
Thus Manusmriti came to influence
Oriental studies in the West far more profoundly than it had ever influenced
the practices of any actual living communities in pre-British India. After
Jones, Colebrook tried his hand at a similar compilation. In a few years time,
Colebrook's translations of the Mitakshara and the Dayabhaga became
the two most frequently referenced sources in court judgments. At the same
time, several Sanskrit scholars were also writing legal treatises, but the work
of European authors on shastric law was held in higher authority than
even the genuine Sanskrit shastric works.
British consistently promoted the myth that Hindus were governed by their
codified versions of shastric injunctions. The modern educated elite in India, whose knowledge of India comes
mainly from English language sources, were thenceforth systematically
brainwashed into believing that the British were actually administering Hindu
personal laws through the medium of the English courts. This was part of a
larger myth-building exercise, whereby the people of the subcontinent were
taught that theirs was a stagnant civilisation. The ignorant assumptions of our
colonial rulers, that social stability in India was due to the supposed
proclivity of its people to follow the same old traditions, customs and laws
that had allegedly remained moribund for centuries, slowly came to acquire the
force of self-evident truth over a period of time, both for those supporting as
well as those opposing British rule.
Anglo Shastric Law
Since then, the dynamism of customary law
has been in constant conflict with the frozen and artificial Anglo-Shastric
law. Dharmashastras, for instance, were not strictly religious
treatises. Dharma itself means the aggregate of duties and obligations -
religious, moral, social and legal - delineated for every individual and
collective performing a specific role in society. For example, the obligations
and duties of a person in his role as a king (raj-dharma) are different
from his obligations as a husband or son (pati-dharma or putra-dharma).
Similarly, guru-dharma demands specific responsibilities from a
teacher just as shishya-dharma binds students to their own set of obligations.
Even war demanded a very rigorous code -yuddha-dharma. The list is
endless and refers mostly to secular duties.
Similarly, the smritis are
collections of precepts written by the rishis, the sages of antiquity. Smritis
are presumed to be the compositions of human authors, not gods; these
authors make it clear that they
are merely anthologising traditions handed down to them over
generations. They did not hesitate to propose changes and reforms in their
writings. For instance, Apastamba, whose work embodies the customs of certain
regions of southern India,
and who authored one of the most respected Sutras, takes care, at the
end of his work, to impress his pupils with the statement:
that the remaining duties
(which have not been taught here) must be learnt from women and men of all
castes." He adds, "the knowledge
which... women possess is the completion of all study." (Mulla, Principles
of Hindu Laws, N.M. Tripathi Pvt., 15th ed., 1986, p. 15).
Neither shastras nor smritis
suggest that there
exists an immutable, universal
moral doctrine. Rather, they emphasise that codes of morality must be
specific to time, person, and place, and evolve according to changing requirements. For example, Narada states, "custom is
powerful and overrides the sacred law." Manusmriti itself stresses that
the business of the ruler is not to impose laws from above but that,
"a king... must inquire into the law
of castes (jati), of districts (Ganapada), of guilds (Shreni),
and of families (kula), and settle the peculiar law of each...Thus
have the holy sages,
well knowing that law is grounded on
immemorial custom, embraced as
the root of all piety good usages long established." (Mulla, Principles of
Hindu Laws, 15th ed., 1986, p. 23).
The authority to change or create new
customs rests with not just the biradari but also the kula or
family. Our smritikars repeatedly stress the primacy of custom and
practice over textual axioms.
People as Law
different smritikars documented the customs of different communities,
there were substantial differences in their approaches, perspectives, and
precepts. But characteristically, none of the smritikars deny the
authority of other smritikars or attempt to prove that theirs is the
supreme, most authoritative version of a code of conduct. They acknowledge that
the authority of the king and the law are derived from the people. Most of the
leading smritikars make explicit statements to this effect. The Smriti
of Yajnavalkya, for instance, lists twenty sages as law givers. The Mitakshara
explains that the enumeration is only illustrative and Dharmasutras of
others are not excluded. Nor is the authority of any shastrakar assigned
smritikars were not rulers. Nor did they owe their authority to any
sovereign political or military power. The authority of the codes they enjoined
were not enforced by punitive measures. Their influence depended solely on the
voluntary internalisation of such value systems by the groups to which they
addressed themselves to, and people's respect for their judgement. Actual
enforcement was left in the hands of the local communities. An oft-repeated
maxim was that reason and justice are to be accorded more regard than mere
texts. Most important of all, a dharmic code, in the rishis' view,
was one that was "agreeable to good conscience."
is one of the few modern social reformers to have understood this principle
underlying the shastras. Therefore,
he could unhesitatingly declare:
"My belief in the Hindu scriptures
does not require me to accept every word and every verse as divinely
inspired... I decline to be bound by any interpretation, however learned it may
be, if it is repugnant to reason or moral sense." (The Collected Work of
Mahatma Gandhi, The Publication Division, Government
of India, Vol. XXI, p. 246)
goes on to add:
"1) I believe in varnashrama of
the Vedas which in my opinion is based on absolute equality of status, notwithstanding
passages to the contrary in the smritis and elsewhere.
2) Every word of the printed works
passing muster as ‘Shastras' is not, in my opinion, a revelation.
3) The interpretation of accepted
texts has undergone evolution and is capable of indefinite evolution, even as the human intellect and heart are.
4) Nothing in the shastras which
is manifestly contrary to universal truths and morals can stand.
5) Nothing in the shastras which
is capable of being reasoned can stand if it is in conflict with reason." (The
Collected Work of Mahatma Gandhi, Vol. LXII, p. 121).
Gandhi could present himself as a modern
day sage calling upon people to overthrow beliefs and practices that did not
conform to principles of equality and justice -or went against "good conscience"
- because he had inherited a tradition whereby the power to change its own
customary law rested with each community.
People in India have demonstrated time and
again that they are willing to accept changes in their customs, provided those
who propose change take the trouble to win the confidence of the community,
rather than attack or humiliate the community as hostile outsiders. The success
of the 19th century social reformers is testimony to this inherent flexibility
of Hindu communities. In recent decades, the work of Swadhyaya in parts
of western India, the Radhasoamis
in Northern India, and many other reform
movements have carried forward the same tradition.
Thus, the practice of self-governance
continues to be a dynamic tradition in India. Each caste, sub-caste and
occupational grouping continues to assert its right to regulate the inner
affairs of its own community and does not pay much attention to either ancient
textual authorities or to modern parliament-enacted laws. When an individual or
a group in India
seeks to defend a particular practice, the common statement one hears across
the country is, "hamari biradari mein to yeh hi chalta hai" (This is how
we do things in our community) - rather than quotations from the shastras.
Those who insist on attributing our social
ills to the shastras repeat the mistake of our colonial rulers. Just as
a doctor can kill a patient through wrong diagnosis and treatment of the
disease - no matter how benign the intention - in the same manner social
reformers can wreak havoc on the people if their understanding of social ills
Discrimination against women or Dalits is
neither inherently ‘Hindu' nor is it scripturally mandated. This is not to
suggest that such practices do not exist. Sadly enough, the disgraceful
treatment of Dalits and downgrading of women are among the most shameful
aspects of contemporary Indian society. But they will not disappear by burning
ancient texts because none of the ‘Hindu' scriptures have projected themselves
as commandment-giving authorities demanding unconditional obedience from all
those claiming to be Hindus.
For example, oppressive widowhood was and
is practised only in certain castes and communities in some regions among the
to the 1901 census, the ban on widow remarriage applied to only ten percent of
all the communities in India.
And yet, in colonial critiques, this ban came to be projected as the universal
situation of all widows in India.
we look closely, we will find that many of the older widows have ended up in
exploitative institutions of Varanasi
and Vrindavan not because of Manu's commands, or any other religious
stipulations, or even the dictates of some contemporary patriarch. They are
there primarily because of the failure of their community to provide secure
rights for women in the family and many are there even because of ill-treatment
by their daughters-in-law. It is also important to remember that of all the
millions of widows only a few thousand end up in places like Vrindavan and Varanasi. True, many may
live oppressed lives within their own homes. But it is also true that many
others live respected lives as honoured matriarchs. If all Indian women are so
subordinate, as suggested by a certain kind of feminist literature, we would
not so frequently encounter the phenomenon of the dominating mothers-in-law
who, in many homes, has the power to make or break their children's marriages.
Nor would we witness innumerable older women putting up with humiliation and
neglect because their daughters-in-law have come to acquire such a powerful
hold over their husbands that they can make them abuse their own mothers. Those
who find this description of the situation far-fetched should do a survey of
their own families. They are likely to find both these extremes coexisting
within their own family circles, along with instances of fairly balanced and
reasonably happy equations.
are free to rid ourselves of any text that debases women or certain castes. Let
us not imagine that Manu or any other shastrakar is obstructing our
efforts to improve the lot of women or other oppressed groups. Despite some of
the very negative and offensive things he might have said from our point of
view (which many scholars hold to be later interpolations)** Mr. Manu did have
the proper sense to pronounce that good karma was more important than
biological lineage. He also emphasised that families and societies which demean
women and make them lead miserable lives inevitably move towards destruction.
He noted that truly prosperous families are only those in which women are
honoured and happy.
I believe that Manu bhai would fully
endorse my writing a Madhusmriti, no matter how much I differ with him.
He would probably rejoice in the fact that many people of today prefer Madhusmriti
to Manusmriti because Manu, like all other smritikars, emphasised
that codes of morality are not fixed by some divine authority, but must evolve
with respect to the changing requirements of generations and communities.