India has a political system where the executive makes the laws, rules the country. There is a judiciary to ensure that the executive follows the path of the Indian Constitution. The main commitment of the judiciary is to the Constitution of India and it has to protect the values of it. There is currently criticism that the judiciary appears to work under pressure from the executive. To top it all off; one of the judges in a recent statement stated something that is totally contrary to the values of the Indian Constitution.
Judge Pratibha Singh according to bar and bench she is reported to have said that “I really believe that we are a blessed group of women in India and the reason for that is that our scriptures have always given a very respectable position to women and as Manusmriti himself says, if you don’t respect and honor women, all pooja way what you can do doesn’t make sense. So I think our ancestors and the Vedic scriptures knew very well how to respect women.”
It is true that Manusmriti says “yatr naryasto pojyantay, ramantay tatr devta [3/56] (where women occupy a place of honor, the gods are pleased and reside there in that house). But that does not reflect the position of women in society given by this holy book. This Holy Scripture is also called Manav Dharma Shastra and is held by the ideologues of Hindu nationalism, from Savarkar to Golwalkar. Unfortunately, its provisions are patriarchal to the core and accord very low status to women. These quotes from said book somehow summarize the social position of women, “Even in her own home, a woman, be it a girl, a young woman or an old woman, should never perform any task independently. As a girl, she must remain under the control of her father, as a young woman, under the control of her husband; and her husband died, under her children”, she says in chapter 5, shlokas 148 and 149. And “Although devoid of virtue, given to lust and totally devoid of good qualities, a good woman should always worship her husband as a god”,
Also the deeper connection of caste and gender is mandated by this book, “The Manusmriti lays down the law that a woman who makes love with a man of a higher caste incurs no punishment; a woman who makes love to a man of a “lower caste” than her own must be isolated and secluded. If a man from a subordinate caste makes love to a woman from the highest caste, he is simply put to death.”
It is not only the caste-varna hierarchy that this book proclaims. It is a full embodiment of the hierarchical values that Brahmanism espouses. There are claims that it is a revealed book and henceforth cannot be questioned. It was written between 170 a. C. and 150 a. C. This is a period parallel to the attack on Buddhism/Buddhists by the Brahminical king Pushyamitra Shung. (Dr. BR Ambedkar, Writings and Speeches Vol 3, page 270-271). This book traces the Varna system back to its divine origin.
Like Buddhism, which articulated values of equality; was attacked and finished off in India these laws prevailed in society, until a long time. It is only during the colonial period, when modern education was introduced and social reforms were conceptualized, that Savitribai Phule started girls’ schools and that, in a real sense, is the beginning of the social struggle for women’s equality. She had Fatima Sheikh as a teacher in her school. Savitribai Phule faced attacks from conservatives, those who defended Manusmriti. She objected to having mud and cow dung thrown at her when she went to school. Later we see people like Pandita Ramabai and Anandi Gopal challenging social norms and taboos to emerge in society and contribute to the process of gender equality.
In parallel, the struggle for social equality led by Jotirao Phule and later Bhimrao Ambedkar stood out among those working for the values of equality, which became important for the national movement led by Gandhi. At this stage, Ambedkar, later to be chairman of the Indian Constitution Drafting Committee, burned Manusmsriti to protest the values of inequality embodied in this scripture.
It is interesting that at this stage; communal organizations (both Muslim and Hindu) were exclusively male organizations. Speaking of the most powerful organization today, RSS is an all-male organization. To involve women in its agenda, it has Rashtra Sevika Samiti. The very nomenclatures reveal deeply rooted patriarchal values. While the men’s organization is Rashtriya Swayamsevak Sangh, the women’s is Rashtra Sevika Samiti. The word swayam is missing here, which coincides with the Manusmriti law that women should be protected (controlled) by men. Those who link their nationalism with other religions are also no different, the Muslim Brotherhood (Egypt) and the Taliban are also in this vein.
India’s Constitution reflects the values of the Indian freedom movement; where struggles for social justice ran parallel and were also part of the national movement. There is a long list of women who were part of the national movement, Sarojini Naidu and Aruna Asaf Ali, Madam Bhikaji Kama, Usha Mehta are just some of the long list who broke the chains of patriarchy and became the leading lights in the struggle for the independence.
India has been dominated by caste and gender hierarchy for centuries. Overcoming this is a really long fight that today many women’s groups are fighting hard against atrocities against women because they are given a secondary position.
Our learned judge, while dispensing justice, needs to understand this grave contrast in our society. This contrast is clearly presented in the life of Ambedkar. He goes on to burn Manusmriti and later, as chairman of the Indian Constitution drafting committee, he plays a crucial role in upholding equality. Hopefully our Law Universities, lawyers and judges record this point and internalize it to ensure that we walk the path of gender justice.