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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 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 (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
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.
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 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.
The 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.
Custom
vs 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:
"Some
declare 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 ofHindu 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. Oursmritikars repeatedly
stress the primacy of custom and practice over textual axioms.
People
as Law Makers
Since 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
hierarchical importance.
The 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."
Gandhi 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)
He 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.
Practice
of Self-Governance
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 is flawed.
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 Hindus. According 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.
If 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.
We 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.
