<!--QuoteBegin-->QUOTE<!--QuoteEBegin--><b>From Manusmriti to Madhusmriti:Â Flagellating a Mythical Enemy</b>
by Madhu Kishwar
EXCERPT:
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.
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by Madhu Kishwar
EXCERPT:
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.
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