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Be It Manu, Be It Macaulay: Indian Law and the ‘Problem’ of the Female Body

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Be It Manu, Be It Macaulay: Indian Law and the ‘Problem’ of the Female Body Be it Manu, be it Macaulay: Indian Law and the ‘Problem’ of the Female Body — Kanad Sinha* In light of a series of recent reports of gender violence, a lot of debate has been generated about the massive number and alleged causes of rape and other sexual offences in India as well as possible remedies. This paper locates one of the deepest roots of the problem in a socio-le- gal approach that tends to consider a woman’s body as a property of the husband. This approach is often defended in the name of ancient Indian tradition and may indeed be traced back to some early Indian texts though not others. This attitude of certain early Indian “law- givers” like Manu and Bŗhaspati is not exclusive, but matched well with the Victorian morality inherited by the administrators of colo- nial India and traceable in the I.P.C. drafted in 1860 under Lord Macaulay’s leadership. Since the attitude has been largely retained even in the legal system of independent India, it has to be understood in its social context, for any legal structure is the product of its con- temporary society. This paper tries to show how this socio-legal ten- dency to consider a woman’s body as property to be protected and preserved for her husband affected the law regarding adultery, rape, molestation and prostitution throughout Indian history. It also tries to show how the construction and perpetual justification of this attitude in the name of “Indian tradition” is the product of a selective appro- priation of certain sources, for a number of alternative traditions have often been overlooked. Locating the problem and its roots, the paper argues that the solution of this deep-rooted problem has to be social as well as legal. As a start, our hasty justification of any inequality on the grounds of Indian tradition needs to be informed by a more nuanced understanding of the multiplicity of Indian tradition and concurrently our law has to shed off the historical baggage of both the Dharmaśāstric tradition and of Victorian morality, thereby proceeding * Research Scholar, Centre for Historical Studies, Jawaharlal Nehru University, New Delhi. Currently the author is an Assistant Professor at the Department of History, St. Stephen’s College, Delhi. The author would like to thank the anonymous editors and peer reviewers for their comments on the paper. Published in Articles section of www.manupatra.com 62 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 5 : Winter] to a more gender-neutral and sensible approach that will accept a per- son’s absolute right over his/her own body. I. INTRODUCTION On the fateful night of December 16, 2012, a young medical student, later named ‘Nirbhaya’, was gang-raped, beaten up and tortured with an iron rod inside a Delhi bus. A male friend accompanying her was also severely beaten up. The incident sparked a wave of protests in Delhi. The anger of the ‘civil society’ overflowed, despite the arrest of the criminals and possibility of justice being neither delayed nor denied. The sad news that the victim lost her battle for life in Singapore inflamed the sentiment to a new high before everything returned to normalcy. The incident was terrifying; the crime heinous. The anger it generated is no doubt justified. However, the issue has more serious dimensions to it. The rape of ‘Nirbhaya’ is not the only reported incident of such a case in recent times. On the contrary, growing sexual violence on women is a crisis threat- ening India in recent years. There is also no reason to believe that Delhi is an isolated case in this regard. The shameful report of a Guwahati teenager being openly molested, stripped, beaten up and tortured with cigarettes by a rowdy mob stunned us in the same year. In 2011, the recorded number of rapes in India allegedly amounted to almost one every hour.1 In the early months of 2013, West Bengal witnessed a series of brutal rapes and murders of school and college students, of which the case of Kamduni near Barasat received huge public attention. Similarly startling was how two lower caste girls were kid- napped, raped and hanged from a tree at Badayun in Uttar Pradesh on May 27, 2014, followed by similar brutalities in Sitapur and Bahraich in the same state. What leads to such a pitiable condition? Can the problem be remedied through legal means alone? There is a strong case for strengthening existing laws, and such demands have been voiced in the Delhi rape protests. However, merely an increase in the quantum of punishment will hardly help in dealing with the larger prob- lem, for the root of the problem is more social than legal. It is not because the punishment for rape is too mild that the rapists rape. Rather, it is because there is very little scope of being punished at all. It is not our laws but our society that still emphasizes the notions of female virginity and chas- tity, and, as a result, often ends up ostracizing the victim — rather than the offender — of a sexual offence. Therefore, for a large number of Indian women, sexual abuse — especially if it amounts to loss of virginity — amounts almost to the end of life, since it jeopardizes the possibility of a respectable mar- riage. Thus many such cases are unreported. In some cases, rapists are made 1 Romila Thapar, The Past as Present 293 (2014). Published in Articles section of www.manupatra.com INDIAN LAW AND THE ‘PROBLEM’ OF THE FEMALE BODY 63 to marry the victim. Any debate on the laws dealing with women, without considering these social aspects, is deemed to be incomplete in this regard. Not only are the makers and upholders of the law produced by their own society, the Implementation of the laws also depends on social agents beside the lawmakers — such as the victims, their families, police officers. So it is important to look at the social dimensions and origins of the law, from out- side the strictly legal point of view. The concerned social notions are often justified in the name of (ancient) ‘Indian culture’ and (ancient) ‘Indian tradi- tion’. Therefore, as Romila Thapar has pointed out in a recent work, the social mindset produced by these notions often search for the solution in limiting the freedom of the victim — like incarcerating women at home after dark, not allowing girls to use cell phones to stop them from contacting boys, suggesting the repetition of the ‘Saraswati Mantra’ for a woman about to be raped or the observance of a ‘Lakshman Rekha’, etc. — rather than searching for the root of the problem. It is often the same social mentality that calls for the death pen- alty of the rapists on the ground that a raped woman is nothing but a zinda lash (living corpse).2 Similar cultural mores lead to the insensitive statements of the Chief Minister and Home Minister of Uttar Pradesh about rape, includ- ing the presentation of rape as an error committed by the boys, alleging the free mingling of boys and girls as the cause of rape, and describing rape as ‘sometimes right and sometimes wrong.’ This paper, therefore, attempts to offer a glimpse of that believed culture or tradition which is regarded as the root of these notions, and their implications in the formation of laws. This paper intends to analyze a specific legal attitude in a number of ancient, medieval and modern Indian traditions. Its scope is therefore limited to the issue con- cerned, and it consciously refrains from entering into the larger debates of comparative religion, or commenting on the relative ‘liberality’ or ‘conserva- tism’ of any religious tradition over another (or the possible explanations for such differences.) II. MANU TO MACAULAY: LOCATING INDIAN LegAL TRADITION Certain early Indian texts are loosely termed as ‘law-books’ by their early translators, and had significantly influenced the colonial perception of traditional Indian law. These are generally of two categories—dharmasūtras and dharmaśāstras or smṛtis. The dharmasūtras are the older of the two, and were composed roughly in the middle of the first millennium BCE, the most notable of these being the four composed by the Gautama, Baudhāyana, 2 Romila Thapar, The Past as Present 293-294 (2014). (Here Thapar also shows how these mentalities, based on some believed religious tradition, reinforces the rape culture even in their protective forms. For instance, the recent riots at Muzaffarnagar in Uttar Pradesh was triggered by the fear that Hindu young women were falling into the clutches of and marrying Muslim young men. The slogan was to protect the women bahu-beti( bachau). But in the pro- cess of protecting the bahu and the beti, raping (Muslim) women was considered perfectly in order). Published in Articles section of www.manupatra.com 64 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 5 : Winter] Āpastamba and Vasiṣṭha. When the society was more organized and set- tled, the new literary genre of the dharmaśāstras or the smṛtis evolved. The Manusmṛti or Mānavadharmaśāstra (c. 200BCE-100CE) is usually consid- ered to be the monumental text of this genre. Following Manu, numerous other ‘law-givers’ composed their treatises, like Yājñavalkya (c.2nd-3rd c. CE), Viṣṇu (c.3rd c. CE), Nārada (c. th4 -5th c. CE), Bṛhaspati (c.5th-6th c. CE) and Kātyāyana (c.th 7 c. CE). All these texts are compositions of brāhmaṇa males, and have a very strong bias in favour of the highest caste and the male gender. The householder’s life is usually portrayed as the ideal life in these texts and the discipline of a household is very much dependent on the subjection of the wife to the husband.
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