Manusmriti, the Indian courts, and their women

Manu is considered to be India’s first law-giver. Even though his rules were overthrown by the Constitution of India, he is so revered that his statue has been erected in the precincts of the Rajasthan High Court, and an entire legal database, the ‘Manupatra’, is named after him. Believed to have been compiled somewhere between the second and third century BC – centuries before the beginning of Islamic rule – the laws of Manu or ‘Manudharma’ are a poignant reflection of the insecurities of the ruling caste men of that era over the lives and bodies of women. It says a lot about the founding nature of the Brahminical laws that continue to define women to this day..Dr BR Ambedkar, who headed the drafting of the Indian Constitution, fought to keep the ideology of Manu’s laws outside the idea of a modern republic. While Ram Rajya needed a revival, Manudharma doesn’t require even that. The patriarchal ethos of these laws has often crept into ostensibly modern legal institutions.The implications of invoking Manu in legal matters pertaining to women run very deep. Usually, the analysis of the invocation of Manu by courts is limited to analysing judgments that deny women their rights, such as in the case of the 2023 Gujarat High Court judgement denying an abortion plea where the judge invoked the Manusmriti during the oral hearings. The judge advised the petitioner’s advocate to read the Manusmriti and said:“We are living in the 21st century and in the past, girls would attain motherhood at an early age. The first child would be born by the age of 17. Girls become mature early than boys. Four to five months here and there doesn’t make any difference. You will not read it but do read Manusmriti for once (sic).”A few days ago, another Jharkhand High Court judge quoted this from the Manusmriti: “Where the women of the family are miserable, the family is soon destroyed, but it always thrives where the women are contented.”The judge also selectively quoted other lines from the Yajurveda, Rigveda, and Brihat Samhita and ultimately rejected the petitioning woman’s plea for maintenance. He concluded that she (the wife) was pressuring the husband to live away from his family because she did not want to serve his mother and grandmother, this being against the ‘age-old Indian culture’. In fact, the judge absurdly conflated the preservation of such family culture with article 51A(f) of the Constitution which encourages citizens ‘to value and preserve the rich heritage of our composite culture’ as a fundamental duty.These are cases where regressivity is on clear display. It is easy to justify why the invocation of Manu is wrongful here. However, what goes unnoticed is that Manu is also invoked by courts to grant rights to women. For instance, on January 3, 2024, the Rajasthan High Court delivered a verdict granting compensation to a rape victim under the Rajasthan Victim Compensation Scheme, 2011. The court quoted a passage from the Manusmriti:“Yatra naryastu pujyante ramante tatra Devata, yatraitaastu na pujyante sarvaastatrafalaah kriyaah” is a famous shloka in Manusmruti which means “where women are honoured, divinity blossoms there and where women are dishonoured, all actions no matter how noble remain unfruitful.”This may seem like a benign invocation of the Manusmriti. However, this is equally, if not more, problematic. The court appears to have made two fundamental mistakes in invoking Manu in this manner. First, whenever a law is read, the laws/codes and single provisions within them are rarely self-contained or disconnected from the larger body. For example, the right to equality in the Constitution is not contained in just Article 14 but is also present in Articles 15, 17, 21, the Preamble, etc. The right to equality must also be read in light of judicial precedents.Therefore, the selective reading of one or two provisions of the Manusmriti in isolation is problematic. What is Manu really saying about women across the various chapters of his book? What aspects of women are acceptable according to Manu and what are not? What type of women, or rather which women, are fine by Manu and which women are not? How are Manu’s injunctions replicated by other texts such as the Vedas, Brahmanas, Dharmashastras, etc.?These are the deeper questions that require reflection and this is the court’s second mistake. In not looking at how the female gender is construed overall by Manu, the court continues to use Manu to give good or bad judgements, both being equally dubious.Manusmriti is premised on characterising women’s essential nature and controlling and criminalising their sexuality. Academic Uma Chakravarti, in her seminal article on Brahminical patriarchy, undertakes a study of the origins of patriarchy across the world where she explains how various traditions, including that of Manu (as well as other Hindu texts and customs), consider the true, innate nature of a woman to be promiscuous, treacherous, evil, fickle-minded, and therefore sinful by birth.The Satapatha Brahmana says: “Woman, a Sudra, a dog, and a crow are the embodiments of untruth, sin, and darkness.” Therefore, according to Manu, she is not even fit to be a witness.In prehistoric India, motherhood was a cause for celebration, but this also meant that a woman’s unbridled sexuality could be a threat to manhood. Kumkum Roy, another feminist scholar, explains how Manu sought a way out of this problem by glorifying wifehood – the identity of a wife being central to Manu’s scheme, and higher in terms of prestige when compared to the identity of a daughter or a sister. Kumkum explains how the woman as a wife becomes sacred, prestigious, glorious, and even godly, but is actually powerless in comparison to men as transgressions from these roles invite violence, and even otherwise, her status is unequal in other matters such as inheritance.Manu states that by guarding the wife, a man preserves the purity of his offspring, his family, himself, and his means of acquiring merit. The Baudhayana, one of the oldest Vedic texts, states that the wives of men of all castes must be guarded more carefully than wealth. Therefore, such institutionalisation of wifehood through the instrument of marriage is what also sustains caste endogamy and therefore the institution of caste itself, as Ambedkar describes in his text Castes in India.In feminist discourse, it is thought that the institution of marriage was created to subjugate women. While this is true, a deeper historical reading of the institution of marriage tells us that it is actually the institution of wifehood particularly that was created to subjugate women. Thus, wifehood resolves many problems at once – the problem of a woman’s innate promiscuous sexual nature, the fear of caste transgression, and the persistent threat to manhood. The institution of marriage and family are merely tools to achieve these ends. Also, in doing so, motherhood or any other aspect of womanhood becomes merely incidental to wifehood and proper and legitimate only when contained within the identity of a wife.The court in invoking the Manusmriti for seemingly good or clearly bad reasons ignores the premise of the Manusmriti which was not simply an endeavour to codify human relations by mirroring the society at the time but an instrument to actively control female sexuality and through that caste and gender relations.Manu’s true aim was to socialise or ‘civilise’ a woman against her untamed nature which could ultimately distract and destroy men and their notion of family. This he does by constructing and imposing his version of ‘womanhood’ on society.The Constitution is antithetical to the Manusmriti as it doesn’t require a woman to be an ideal wife, daughter, or sister to claim her rights. There is enough in the Constitution for the courts to fall back on without needing to refer to Manudharma.The court’s uncritical and positivist reading of the Manusmriti today is thus both anti-woman and anti-Constitution. In an attempt to grant rights to women by relying on Manu’s logic, such as in the recent Rajasthan HC case mentioned before, the court is actually denying the woman her right to construct her own identity outside the binary of honour and shame and outside of the designated ancient gender roles.In 2018, it was two Dalit women who blackened Manu’s statue at the Rajasthan High Court. One of these women, Kantabai Ahire, stated, “…He (Manu) had laid down regressive laws for the shudras, and the ati-shudras and women. That fictitious figure still gets legitimacy in contemporary India.”BR Ambedkar burnt the Manusmriti in 1927 for this reason. Since then, Dalit Ambedkarites in India have commemorated this day and taken it upon themselves to dismantle the entire framework of Manudharma. This struggle holds the key to the emancipation of all women and humans in our society.

Manusmriti, the Indian courts, and their women

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