Madhu Kishwar

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.