THE TRADITION OF THE DHARMASASTRAS AND INVENTION OF HINDU LAW IN EARLY COLONIAL BENGAL
This paper dwells on the fundamental argument that ‘Hindu law’ –an established category in the socio-legal terminology in colonial and, indeed post-colonial India was an early colonial invention. ‘Hindu law’ as constructed and defined by the 18th century Englishmen in Bengal did not exist in pre-colonial India. Hindu law was constructed on the basis of the appropriation of selective branches from the prescriptive, normative and moralistic tradition of the Dharmasastras, especially the Smrtis to produce Hindu law as an integral component of the empire in order to facilitate their administrative machinery- both revenue and judicial.
In 1772, when the East India Company took over the direct administration of Bengal. Warren Hastings became the first Governor-General. As is well known, land revenue remained the prime concern of the Company in the initial phase.
Hastings and also his immediate successors had to accomplish the dual task of ensuring the maximum amount of land revenue as the accrual was invested in the conquest of other parts of India to build the Indian Empire and also in the Far Eastern trade, mainly china, coupled with the introduction of a judicial administration- both civil and criminal -which would command the authority over the native subjects. The colonial Codes on Hindu law, compiled and rendered in English during the latter half of the 18th century, were the direct outcome of this dual concern.
The early rulers of the company made very little pretence that they would retain the traditional law as far as criminal law was concerned. But primarily, being apprehensive of the popular resentment against the newly established regime, the early officials repeatedly proclaimed that in terms of civil and personal laws, such as property, inheritance, succession, marriage, adoption etc, they would administer traditional laws to their native subjects. A binary was created in the administrative terminology- Hindu law and Muslim law. It is evident from the contemporary documents that during the early era, the rulers were more concerned with the construction of ‘Hindu law’ than the Muslim counterpart.
Hindu law was created on the basis of selective appropriation of the Dharmasastras, especially the Smrtis and to some extent the Nyaya-Mimamsa tradition (the tradition of logic and interpretation) as the methodological tool. It is rather intriguing how Hindu law was perceived as the civil and personal law of the Hindus. In fact, since the earliest days, many British ideologues and officials such as J. Z. Holwell, Willial Bolts, Luke Scrafton, Alexander Dow and Harry Verelest referred to the “Sastras” or “Sastahs” as the civil and personal laws of the Hindus.
On the basis of this perception, Hastings appointed a team of eleven Pundits to compile a code on Hindu law in 1772. Vivadarnavasetu, the original Sanskrit version was later on was first rendered in Persian and then into English under the title – A Code of Gentoo Laws from the Persian rendering by N. B Halhed. It was first published in 1776 followed by several editions and reprints in different European languages. This text was repeatedly referred and described in the contemporary documents as the ‘standard handbook on Hindu law’. However, the discrepancies in the meanings of original Sanskrit compilation and the English rendering is very significant in the process of the metamorphosis of the traditional literature of the Dharmasastras and invention of Hindu law. Vivadarnavasetu literally means ‘a bridge on the ocean of disputes’. The meaning was totally transformed in the English rendering. It imported the following terms – ‘code’, and ‘law’ from British legal terminology and a new tradition was invented through the appropriation of the prescriptive, normative and moralistic principles expounded in the traditional literature of the Sastras. Another compilation was undertaken within twenty years under the initiative of the erudite orientalist with knowledge of Sanskrit – William Jones and with the patronage of the Cornwallis – the then Governor-General of Bengal and the architect of permanent settlement of land revenue in the year 1793. Jones appointed Jagannath Tarkapanchanan, the legendary scholar on all branches of the Dharmasastras to compile Vivadabhangarnava –that literally means ‘a break wave on the ocean of disputes’. Due to the untimely death of Jones, H. T Colebrooke translated the text under the title – A Digest of Hindu Law, first published in 1801. Again, the importation of British legal terminologies such as ‘digest’ and ‘law’ tried to legitimize the transformation of the prescriptive guidelines enshrined in the Sastras into legal rules to be directly administered through court. It must also be mentioned that William Jones translated Manusmrti as the ‘authentic’ laws of the Hindus. The text was first published in 1794. Manusmrti literally means the memories from Manu. He translated this text under the title – The Institutes of Hindu Law. Again, the terms- ‘Institute’ and ‘law’ used in defining a text belonging to Smrti genre were culturally contextual to contemporary England. Thus, the systematic projection of the Sastras as Hindu law may be noticed since the earliest era of the British rule in Bengal.
A brief analysis of the tradition of the Dharmasastras is necessary to clarify further the notion of invention. It is a vast corpus of literature- the language of which was Sanskrit- “a strange, crisp, terse lingua franca which made no concessions to the beginners” as described by J. D. M Derrett. The contents of the Dharmasastras can hardly be described by any single category such as law, religion, philosophy or intellectual discourse. Dharmasastra means the ‘teaching or science of righteousness’. The word Dharma literally means ‘to hold, to support, to maintain or to sustain’. The rules expounded here provided prescriptive, normative and moralistic guidelines for the ‘twice-born’ (Brahmin, ksatriya and Vaisya) and marginally for the Sudras. The prescriptions were designed to regulate the entire life-cycle of a Hindu individual- both male and female. They were encouraged to perform the righteous duties appropriate to his or her sex (Stripuruso dharma), status (Varna) and stages of life (asrama). In the end, the entire literature envisaged not only worldly happiness and a harmonious social order but also hopes of blissful existence in heaven.
The origin and development of this millennium old tradition is shrouded in uncertainty and myth. The ultimate source is known to be the Vedas, though the word Veda does not strictly refer to the texts, but to the totality of knowledge and the sum total of understanding of all religious and moral truths, whether revealed or not. Smrtis are held to be indirect perceptions founded on memory (a literal translation of the word) on the basis of which Dharma grew into a discipline or science- Dharmasastra. A definite date for their beginning has not been identified. Manu is held as the first among the authors on Smrti, such as Yajnavalkya, Narara, Devala, Katyayana and many others, though the identity of Manu is still a debated and controversial issue. However, the tentative date of Manusmrti is held between 500 and 400 B. C and the period of writing Smrti literature till 800 A. D. The early British rulers described Manusmrti as the most “ancient” and “authentic” laws of the Hindus.
The process of evolution to which this millennium old tradition responded so well demonstrate that it was not a static tradition. The durability and dynamics were gathered through the emerging traditions of Tikas and Nibandhas. Tikas were the illustrative commentaries on the original Smrtis. But the interpretations of the same text varied among authors in different regions and periods of time. For example, Medhatithi’s Manubhasya or Kulluka Bhatta’s Manavarthamuktavali did not offer same interpretation on specific verses or issues. About the Nibandhas – dwelling upon certain texts, the authors would make a choice by offering a critique of others and write a discourse. The basic principle was to extract the meaning of Dharma from vast mass of literature and put forward one’s own views. The issues ranged from Dayabhaga (division of property), Vyavahara (principles of jurisprudence), Prayaschitta (penance), Suddhi (purification), Vivaha (marriage) and other aspects of familial, social, moral and religious conduct.
The tradition was bifurcated 10th or 11th century onwards into two broad intellectual traditions – Dayabhaga and Mitaksara. The original propounder of Mitaksara was Vijnesvara, the 9th century commentator from Mithila/Benaras. There was further ramification within Mitaksara tradition over several centuries along geographical boundaries, such as Maharastra or western India and South India or Deccan in addition to Benaras or Mithila tradition. However, Jimutavahana, the 10th/11th century commentator from Bengal produced his discourse on Dayabhaga (division of property) which marked a cleavage from the earlier discourses along Mitaksara line. These two intellectual traditions differed on certain fundamental principles such as time of division of ancestral property, mode of division of joint property and women’s property – especially widow’s rights and entitlements. The Dayabhaga tradition pronounced more liberal rights for women in general and widows in particular. It may explain the reason why Sati was more frequently practised in Bengal.
The proliferation of Tikas and Nibandhas indicate a buoyant environment for the tradition to be flourished over centuries and millennia. In fact, unabated growth of such discourses till the beginning of colonial rule suggests that Islamic power in India accepted or accommodated the autonomous domain of the Sastras. The pre-eminence and dominant influence of the Brahmins as reflected in the writings of the early British ideologues and officials indicate that even the Mughal rulers did not integrate this tradition within state hierarchy of command and control. There was virtual decline of this tradition during the colonial period. Instead, a new trend of translation of prominent treatises of the Smrtis and discourses on Dayabhaga and Mitaksara had begun under the colonial regime. Indian participation in this new enterprise was minimal.
Extant pre-colonial evidences suggest that the Sastras evolved as a tradition of intellectual and philosophical knowledge rather one integral to administration. The community of scholars ran academia known as tols or chatuspathis. The students were part of teachers’ household. The students received titles from the preceptor depending on their merit and quality such as Sastri, Tarkalankar, Nyayalankar, Kavyalankar and so on. They opened their own academia after successfully obtaining the degree. Among the scholars, Sri Chaitanya, Gadadhara, Basudev Sarbabhauma, Raghunath Siromoni were some of the luminaries from pre-colonial Bengal. It must also be mentioned that migration via river-route and intellectual exchanges played an important role in the development of this tradition. There is no evidence to indicate at all that such institutions were controlled or managed by the state. Indeed, the tradition of knowledge received both appreciation and material support from the local and regional authorities. Occasionally debates (tarka) were organized in the royal courts.
The legal elements, if any, of the Sastras were reflected in the treatises on Vyavahara; but these accounted for only a fraction of the Smrti literature. Derrett translated the term as ‘litigation’ whereas Halhed discussed this section under the title ‘justice’. A very significant and noticeable feature of the discussion on Vyavahara or in that case in the entire Smrti literature is the absence of a Sanskrit term synonymous to the English word ‘law’. Derrrett defined the Western notion of ‘law’ as follows:
“Law is the body of rules (namely positive and negative injunctions and prohibitions), which can be enforced by judicial actions. A rule which will not be observed, directly or indirectly, in a court or before a tribunal is not law. What ought (in some people’s perception) to be law is not law. Ethical injunctions are not law. That which is left to choice is not law.”
Much of what is described as ‘not law’ by Derrett is in fact the central concern of the Smrti literature. In other words, the rules expounded in such literature lacked the quality of instrumentality or the coercive element that should be the most essential component of law. There is no evidence to suggest that such rules were directly administered through the pre-colonial courts. Moreover, the Sastras defined ‘wrong’ actions as ‘sin’ rather than ‘crime’ and they would best impose strictures and penances as symbol of repentance. The penances were by no means equal to punishment or conviction.
Raghunandana, the 15th/16th commentator from Bengal and an encyclopaedic author of 28 treatises clearly stated in his discourses on Vyavahara (Vyavahara tattva) that Lokavyavahara or popular custom, convention or the existing social practice enjoyed far superior edge over Sastric norms. He elaborated that if there was a dispute of larger dimension which could not be solved locally, the parties would report to the king or the Zamindar. The king would appoint an expert – Pradviveka (usually Brahmin, but occasionally a ksatriya with exceptional ability) proficient in both Sastric norms and customary practices. He questioned both parties, and after careful consideration he was expected to offer his opinion. Finally, the king would pronounce the final verdict as the supreme authority, though he was expected to ratify Pradviveka’s opinion under usual circumstances.
Indeed, the Pundits played the role of advisor or arbitrator as emphasized in the discourses on Rajadharma (duties of a king) included in the Sastric literature. The Pundits role as arbitrator was also recorded in Panchanan Mondal’s collection of letters – collected from the rural areas of Bengal covering the period between 1684 and 1883. Mondal had shown that the Pundits were consulted on matters relating to property, inheritance, conjugal disputes, adultery, choosing an auspicious day for marriage or journey or other important events, condemning a person as an outcaste etc. On being consulted, the Pundits would offer Vyavathas (settlement or arrangement). The written Vyavathas were called Bhas or Pati in Bengal. In this context, Mahammad Raza Khan, the Naib-Nazim (revenue administrator) of Bengal during Diwani era 1765-1772, made the following statement in response to the queries of the British officials on Pre-colonial forms of justice:
“If the Hindus would decide amongst themselves by their Brahmins, their disputes regarding inheritance and Partition of estates etc., why should they come to the court of Magistrate to complain? But when their disputes can not be settled by their Brahmins and the heads of their caste, they complain to the Magistrate from whose opinion they can not deviate”.
Reza Khan’s statement clearly demonstrated that neither Sastric prescriptions nor the opinions of the Pundits were treated as letters of law. Punitive justice was dispensed only by the Magistrate or the Kazis.
Thus, for the Hindus, every aspect of life was governed by Dharma. Therefore, it was wrong on the part of the colonial rulers to assume that certain prescriptions enshrined in selective literary discourse could be circumscribed by either religion or law and by no means religions law. Therefore, there was a gross deviation from tradition in the early colonial attempts to restrict Dharma to a short list of topics – codified and translated under the category of law and made essential instruments of colonial governance.
It is difficult to ascertain whether it was genuine misperception or deliberate misrepresentation. But Derrett offered an interesting explanation for the metamorphosis. He argued that the young and inexperienced officials mistook the ‘sastras for a system a kin to course law’. He emphasized that it was an ‘error on the part of the 18th century foreign students of few Sastric texts then available to them to expect to bind a complete code of law, readymade on European lines’. He justified the mistake on the ground that the early officials had “no inward knowledge of the civilization they undertook to protect, and thus could not have applied the precepts even if recognized them as such”. He explained that this misperception marked the beginning of an evolutionary passage from the Dharmasastra to Hindu law, the celebrated Anglo-Hindu Jurisprudence, and he believed that without such a misunderstanding, India would have never got a uniform Hindu law, which was eventually achieved only after 200 years of British rule.
The Pundits compiled a text under the title – Vivadarnave setu – A Bridge in the Ocean of Disputes. It was translated under the title – A Code of Gentoo laws. Both the concepts of “code” and “law” were foreign to the entire tradition. Likewise, Vivadabhangarnava was translated as “The Digest of Hindoo Laws”. Both Digests and law were culturally contextual to England or Europe, not Bengal. It must be mentioned in this context that the first code in Europe was produced in 1804 – the Napoleonic Code in France.
Jones translated Manusmrti under the title “Institutes of Hindu law or Ordinations from Menu” – a complete transformation in the entire basis of literature. Jones considered Manu as “the most ancient legislator of India”, but assessed the text with a condescending tone. It is very interesting that he characterized the text as “system of despotism and priest craft”, but “both indeed limited by law”, though he observed:
“It is filled with strange Conceits in metaphysics and natural philosophy, with idle superstitions, and with scheme of theology most obscurely figurative, and consequently liable to dangerous misconceptions; it abounds with minute and childish formalities, with ceremonies generally absurd and often ridiculous, the punishments partial and fanciful”.
It is evident from Jones’ observation that he considered this text as anything but ‘law’. Still he projected this text as law which was, in his view, “actually revered, as the word of Most High” by the Hindus. Then he spelt out the importance of the Hindus to the nascent colonial empire:
“Nations of great importance to the political and commercial interests of Europe, particularly by many million Hindu subjects, whose well directed industry would add to the wealth of Britain, and who would ask for no more in return than protection of their persons and places of abode, justice in temporal concerns, indulgence to the prejudices of their old religion, and the benefits of these laws, believe sacred, and which they can possibly comprehend”.
The imperial designs behind the codification of Hindu law are coherently expressed in the above discourse on behalf of the native subjects. The imperial motivation can possibly explain the hiatus between misunderstanding or deliberate misrepresentation of selective branches of the sastras as Hindu law and blissful ignorance of the Hindu subject about the metamorphosis of the tradition as an instrument of command of control as well as an agency to implement colonial policies.
However, Jones and his contemporaries did not include female subjects in the scheme of “well directed industry” and “wealth of Britain”. Women in Bengal especially the widows enjoyed a residual but substantive rights of property. In that case, the entire corpus of Smrti literature including Manusmrti, despite its vulgarly misogynic utterances, elaborated several categories of female heirs – widows, mothers, unmarried daughters and recipient of stridhana. Manusmrti introduced the concept of ‘Putrika’ – a ‘son designate’. According to Dayabhaga tradition in Bengal, the widows were entitled in inherit the entire property of her deceased husband – both divided and undivided properties. The Dayabhaga tradition also prescribed a special share to the unmarried daughters along with Putrika as a separate category. The early officials also had to encounter a considerable number of both large and small female proprietors. In fact, all the big Zamindaries in Bengal – Burdwan, Rajshahy, Dinajpore, Tamlook, were, at some points of time under the management of female Zamindars.
It appears from the contemporary colonial evidence that this fact came as a culture shock to the company officials. In contemporary England, women did not enjoy such rights to property and inheritance. The officials adopted various strategies, so that women would not be able to pay revenue to the Company’s treasury. As for example, Philip Francis, an important member of Govern-General in council sought to establish a court of wards under the following categories – ‘minor’, ‘idiot’, ‘lunatic’ and ‘female’. John Shore, the Governor-General, next to Hastings, declared women as ‘disqualified landholders’ by invoking the oft-quoted dictum from Manusmrti: ‘women are protected by their father in childhood, by husband when young, by the souls in old age. Women are never independent: There are several evidences of how the officials became hostile when a woman tried to defend her right from the encroachment of male relatives. The judicial documents such as Justice Hyde’s Manusmrti Diary, Supreme Court Records and Jones’ Manusmrti Diary reveal a similar attitude. The ultimate objective of the British advocates and judges were to subvert and suppress women’s rights to property and inheritance, through several manipulations including condemning women as unchaste and importing more conservative prescriptions from Benaras.
But the most striking feature of the colonial Codes could be found in their advocacy of the practice of Sati as a symbol of ‘faithful widowhood’. The second text – Digest – even invoked the notion of ‘power’ of the faithful widow who by the act of burning herself would extricate her husband from innumerable sins and also both the parental and husband’s family would acquire virtues through her.
On numerous discourses, the early officials condemned Sati as savage and barbaric and appropriated it to project the inferior attributes of Indian civilizations their subject nation. Finally, the second Code defined women as NIRINDRIYA – translated as ‘lacking in the faculty of knowledge of law’ therefore ‘weaker sex’ and hence disqualified landholders.
Codification almost always involves reduction of laws customarily observed by a particular set of people to a more or less permanent, organized and written form through a comprehensive piece of legislation. It has been emphasized that an act of codification is always a somewhat revolutionary step in the sense that it represents a certain intellectual break with the past. It may be observed that all governments have used the opportunity of codification to make innovation and changes in old laws, using them as channel to perpetuate their authority. However, colonial codes on Hindu law were not simply an organized, written and perhaps reformed version of an existing set of laws. Instead, they transformed the prescriptive, normative and moralistic codes of conduct embodied in the Sastras into legal rules to be directly administered by the Court.
The 19th century witnessed series of so-called liberal reforms for women – but, by then, women were literally on the verge of loosing their grounds. Therefore, it would not be wrong to say that with the invention of Hindu law – a new form of Patriarchy emerged in India – may be termed as reformed Patriarchy – defined and designed by ‘rule of law’ and legislative acts – the legacy of which is still felt by the women in India.
