From Manusmriti to
Madhusmriti Flagellating a Mythical Enemy
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Madhu Kishwar
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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 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 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.
q
* For a more detailed analysis see Duncan Derret, Religion,
Law and State in India. The Free Press, New York, 1968; also
see Codified Hindu Law: Myth and Reality by Madhu Kishwar,
Economic and Political Weekly, Vol. XXIX, No. 33, August 13,
1994.
** See for example The Manusmriti, with critical commentary
by Dr. Surendra Kumar, Arsh Sahitya Prachar Trust, Delhi,
pp.452-53.