This was first published in the print edition of Manushi journal, Issue no. 120 – Guest

April 8, 2021 / By Madhu Purnima Kishwar / 6 minutes of reading

On 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 India. In the ensuing controversy defenders of Manusmriti projected it as a pivotal canonical source of religious law for Hindus.

In 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 having 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 (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.

The 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.

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 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.

An Anglo-Brahamanical 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 AngloBrahmanical 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 nonMuslim inhabitants of the subcontinent. The codification of their so-called “personal laws” became an important instrument in that endeavour.