Author: Madhu Kishwar
Publication: The Pioneer
Date: June, 28 2000
In the last 20 years of my editing Manushi, I have been bored to death
reading endless articles from those who consider themselves progressives
with regard to women's rights and the caste question, carrying a mandatory
attack on the author of Manusmriti.
It is projected as the defining document of Brahminical Hinduism, and
also the key source of gender and caste oppression in India. In most of
these instances, I have found that the writers had not even read the actual
text. They base their entire critique on one or two oft quoted negative
sounding statements about women or shudras, ignoring all those parts of
the text which are well-meaning and even positive towards both these groups.
In the course of trying to explain why this negative obsession with
some of these traditional texts 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 subscribers.
This perfectly serious statement was dismissed as facetious by many
feminists. Others, claiming to speak on behalf of Hindu culture, took my
comment as an insult to the great shastrakar himself. These responses indicate
that there is a serious misconception among the modern educated elite over
the actual status and role of the shasratas in our religious life and cultural
traditions. The confusion is not theirs alone; these common misrepresentations
are an unfortunate byproduct of our colonial education which we slavishly
cling to.
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.
In 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 ran all over the country.
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.
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. 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.
An Anglo-Brahminical hybrid: 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-Brahminical 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. 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.
Maha Pandit William Jones: 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 even 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 translation
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.
