The Legacy of Colonialism: Law and Women's Rights in India Varsha Chitnis

University of Florida Levin College of Law UF Law Scholarship Repository Faculty Publications Faculty Scholarship 1-1-2007 The Legacy of Colonialism: Law and Women's Rights in India Varsha Chitnis Danaya C. Wright University of Florida Levin College of Law, [email protected] Follow this and additional works at: http://scholarship.law.ufl.edu/facultypub Part of the Comparative and Foreign Law Commons, Family Law Commons, and the Women Commons Recommended Citation Varsha Chitnis & Danaya Wright, The Legacy of Colonialism: Law and Women's Rights in India, 64 Wash. & Lee L. Rev. 1315 (2007), available at http://scholarship.law.ufl.edu/facultypub/174 This Article is brought to you for free and open access by the Faculty Scholarship at UF Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected]. The Legacy of Colonialism: Law and Women's Rights in India Varsha Chitnis* Danaya Wright** Abstract The relationshipbetween nineteenth century Englandand colonialIndia was complex in terms of negotiatingthe different constituencies that claimed an interest in the economic and moral development of the colonies. After India became subject to the sovereignty of the English Monarchy in 1858, itsfuture became indelibly linked with that ofEngland's,yet India's own unique history and culture meant that many of the reforms the colonialistsset out to undertake worked out differently than they anticipated. In particular,the colonial ambition of civilizing the barbaricnative Indian male underlay many of the legal reforms attempted in the nearly hundredyears between 1858 andIndia's independence in 194 7. This Article looks at three areasof law reform in India affecting women's rights that were closely modeled on reforms in English law: changes in age of consent laws, changes in widow inheritance laws, and changes in abortion laws. The first two occurredin the nineteenth century and the last in the twentieth century, post-independence, yet the changes in abortion law still bore indelible traces ofcolonial authority. We explore ways in which, despite the change in legal sovereignty, the colonial influences that characterizedthe unsteady alliances and interests between colonial rulers, native elite men, and British women infused the law reforms with patriarchal and colonial values. In particular,we argue that the custom of adopting English laws to deal with unique Indian situations,without understandingthe different culture and history, meant that many of the reforms within India either promoted British interests or frustratedthe interests of Indian women. This Article offers new insights by exploring the interplay ofBritish feminists and activists in law reform movements that usually are studied only from the * Visiting Scholar in the Center on Children and Families at the University of Florida Levin College of Law. ** Professor of Law at the University of Florida Levin College of Law. 1315 HeinOnline -- 64 Wash. & Lee L. Rev. 1315 2007 1316 64 WASH. & LEE L. REV 1315 (2007) perspective of colonialmale rulersand native male elites. By focusing on the situation ofindian women and addingthe perspective ofBritish feminists, this Article highlights numerous ways in which colonial women undermined the reforms of their Indian counterparts. Table of Contents I. Introduction ................................................................................ 13 16 II. The Colonial Context and Competing Legal Authorities ............ 1320 III. The British Feminist Reform Movement and the Civilizing M ission ....................................................................................... 1324 IV. Reforms in Age of Consent Law ................................................ 1326 V. Widow Remarriage, Reversions, and Dower Reforms ............... 1332 VI. Abortion and Female Feticide in Post-Colonial India ................. 1338 VII. British Feminists, Colonial Authorities, and Native Elites Negotiate the Female Body ............................................... 1345 I. Introduction Pre-colonial India was characterized by a pluralistic and fragmented cultural, religious, and political structure in which there was no monolithic Hindu, Muslim, or Christian authority.' Multiple tribes, castes, sects, and family groupings crossed religious and political lines, creating a heterogeneous population that may have had a definite notion of authority but no corresponding notion of legality.2 Much of the law of the period was customary, with adjudication within segregated communities, which gave rise to a common interpretation by outsiders that pre-colonial India lacked law 1. See FLAViA AGNES, LAW AND GENDER INEQUALrrY: THE POLMCS OF WOMEN'S RIGHTs IN INDIA 12 (1999) ("Plurality of laws and customs and a non-state legal structure were the essential characteristics of the ancient Indian communities."). For a good general history of law's effects on women in colonial India, see generally JANAKI NAIR, WOMEN AND LAW IN COLONIAL INDIA: A SOCIAL HISTORY (2000). 2. See NAmR, supranote 1, at 22 ("[S]cholars argued that although there was a definite notion of 'authority,' there was no commensurate notion of 'legality."'); see also Elizabeth Kolsky, Codificationand the Rule of ColonialDifference: CriminalProcedure in BritishIndia, 23 L. & HIST. REv. 631, 652 (2005) (noting that some British reformers described India as a "country singularly empty of law"). HeinOnline -- 64 Wash. & Lee L. Rev. 1316 2007 THE LEGACY OF COLONIALISM 1317 altogether.3 When the East India Company acquired the right to collect revenue in Bengal, Bihar, and Orissa in 1765, the company had to devise a new political and legal structure for the newly-acquired dominions.4 British colonial rule in India began primarily as a political expedient through this quasi-private entity, the East India Company, to reap the benefits of imperialism without setting up a fully functioning sovereign state.5 Colonial rule changed dramatically after 1858, when the company's rule was replaced by the Crown as the legal sovereign. 6 Throughout the Victorian period, colonial authority was largely premised on an ideology of the civilizing mission, both in Indian and English terms.7 Within India, the company claimed legitimacy through its mission of defeating and replacing the Mughal rulers, who had been the source of aristocratic power and succession. 8 Legitimacy was gained for the English population at home through the self-proclaimed role of "civilizing" the natives by initiating reforms which represented the enlightenment spirit of the British, the harbingers of progress and modernity. 9 After the transfer of power to the English Crown in 1858, there were two competing groups vying for political and legal legitimacy within India: the British colonial authorities and the native male elite.' 0 In the ebb and flow of political bargaining, the colonial governors generally ceded authority in family law matters to the customary and/or canonical law of the dominant religions, 3. See W.H. Rattigan, CustomaryLaw in India, 10 LAw MAG. & L. REv. 1,3-4(5th ser. 1884-1885) (describing the unwritten customary law of Indian villages). 4. See NAIR, supra note 1, at 19 (noting the East India Company's desire to fashion a "legal-juridical apparatus" to control the Bengali revenues the company was granted in 1765). 5. See Jana Tschurenev, Between Non-interference in Matters of Religion and the Civilizing Mission: The Prohibitionof Suttee in 1829, in COLONIALISM AS CIVILIZING MISSION: CULTURAL IDEOLOGY INBRITISH INDIA 68,69 (Harald Fischer-Tine & Michael Mann eds., 2004) (discussing British desire to secure the East India Company's economic success while remaining uninvolved in religious and cultural practices of the local populations). 6. See AGNES, supra note 1, at 59 (describing the administrative shift in India from the East India Company to the British Crown). 7. See Michael Mann, "TorchbearersUpon the Path ofProgress ": Britain'sIdeology of a "Moral and Material Progress" in India-An Introductory Essay, in COLONIALISM AS CIVILIZING MISSION: CULTURAL IDEOLOGY INBRITISH INDIA, supra note 5, at 4 (noting Britain's pursuit of a civilizing project in its colonies during the late eighteenth century). 8. See id. at 5 (discussing British conquest over Mughal rulers). 9. See Himani Bannerji, Age of Consent andHegemonic SocialReform, in GENDER AND IMPERIALISM 21, 26 (Clare Midgley ed., 1998) (discussing colonial Britain's projection of an "enlightened" self-identity); see also Mann, supra note 7, at 5 (describing British justification for the civilizing mission). 10. See AGNES, supra note 1, at 65 (examining the contradictions between Hindu revivalists and British administrators); Bannerji, supra note 9, at 23 (discussing the indigenous male elite's role in Indian social reform and social control). HeinOnline -- 64 Wash. & Lee L. Rev. 1317 2007 1318 64 WASH. & LEE L. REV. 1315 (2007) which had already gathered together groups that, in pre-colonial times, might not have accepted the authority of a monolithic Hindu or Muslim creed.1' Negotiating those relationships and situations that would be governed by Hindu or Islamic law or would be governed by the secular (though clearly Christian) colonial law was a difficult task throughout the Victorian era. 12 In somewhat simplified terms, both the British interpretation of India as a society driven by religion and their own description of its glorious

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