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LGD 2001 (2) - Sitharamam Kakarala 1


 Contents

Enslaved Daughters: Colonialism, Law and Women's Rights
by Sudhir Chandra

Oxford University Press (1998)
New Delhi, India

Reviewed by:
Dr Sitharamam Kakarala
Faculty of Law
National Law School
India University
lasfq@csv.warwick.ac.uk
 

1. Introduction

For a long time teaching in law schools and colleges in India has been dominated by, as in the case of making legislations, the borrowed knowledge from the West. Particularly in subjects like Jurisprudence Austin, Bentham, Kelsen and Hart continue to reign even today. The search for a 'Jurisprudence of India', which is intermittently carried by some enthusiastic 'teachers', many of whom happen to be retired judges with scholarly pursuits, tends to stop at the induction of Yagnavalkyas and Manus in the lineage of the family of global jurists, and 're-searching' of the modern precepts of law and justice (that is, the principles which came to India through Colonialism) in the 'pristine' Indian past. The significant departures made from the euro-centric theorisations and/or eulogising of 'past' in the research of other social science disciplines largely remained unavailable to law students as there is no 'custom' of inter-disciplinary approach in most law schools/colleges, with very few exceptions. In this background, the recent scholarship on the colonialism-law interface[1] is not only a refreshing welcome development, but, to be more fair to its substantive potential, is also a significant trend which could potentially inspire new and critical insights into various aspects of custom, law and justice rooted in Indian context and history. These studies tend to raise, through a reinterpretation of modern law's role during the colonial period, some basic questions about the modern law's claim to 'superior moral authority' vis-à-vis the native custom and hence the right means to justice. Sudhir Chandra's Enslaved Daughters rightfully belongs to that genre of studies.

Through a microscopic focus on the story of Rukmabai, 'an intelligent and cultured young woman' of twenty two years, who refuses to join the company of Dadaji Bhikaji, to whom she was married when she was eleven years of age, Enslaved Daughters unfolds not only the rich and intricate details of the long fought court case per se, which no doubt will give the reader an engrossing account of this important late nineteenth century episode in the Indian legal history, but also illuminates the ambivalent and self-contradictory dimensions of the processes of 'justice' and 'emancipation' in the late nineteenth century India.

In brief the story is, when Rukmabai refuses to join Dadaji to consummate the marriage that took place nearly a decade before, he files a lawsuit for the restitution of his conjugal rights. Justice Pinhey, who presides the case at the first instance, gives the verdict in favour of Rukmabai on the ground that she cannot be forced to honour a marriage, which took place 'during her helpless infancy'. The case subsequently raises a major debate on the issues surrounding marriage amongst various interested parties, ranging from the orthodox Hindus, to native reformers in India, to legislators and the news media in India and Britain, transforming the case of an individual seeking her freedom from unwanted marital relationship into a social drama of struggle for women's rights. Having witnessed the on going discourse emerged from the responses to Pinhey's verdict, the judges of the Appellate Bench approach the issue of 'restitution' or 'institution' of conjugal rights in the 'Hindu law' more cautiously when the case comes before them, and they finally, and perhaps predictably, reverse the verdict in favour of Dadaji. Faced with the prospect of either living with a husband for whom she has utter disliking or imprisonment for defiance to the court verdict, Rukmabai chooses to embrace the second option and thereby simultaneously challenging the Hindu orthodox patriarchy and exposing the injustice in the colonial legal system. The case however ends in an anti-climax with Dadaji agreeing to receive two thousand rupees towards costs of the case and not to execute the court decree for Rukmabai's imprisonment. The final, and perhaps intriguingly ironical twist to the story comes, however, when Rukmabai, who defied both the Hindu orthodoxy and the Colonial (in)justice system, decides to take the Hindu widows garb, when Dadaji dies ten years after the agreement.

Sudhir Chandra's skilful and masterly (re)construction of the narrative of Rukmabai, the transcendence of her personal struggle to her-'self' into being a martyr for women's rights grapples simultaneously with three layers of social consciousness of the times[2] - the Hindu Orthodoxy, the native reformists and the colonial masters. The transformation of a personal battle into a struggle for social cause happened, according to Sudhir Chandra, when Justice Pinhey's 'moral' views outweighed law in his judgement. After a reading of the book, readers may also interpret that such a process had probably begun with the publication of the letter written by 'a Hindu Lady' in The Times on the plight of her sisters under the native patriarchy and Justice Pinhey's verdict made it an irreversible process of struggle.

Pinhey's verdict had to grapple with the clash of differing cultural views on 'marriage'- is it a contract or religious sacrament - and a host of related issues such as, for example, is there a role for the individual, more particularly for the woman, in the issue? Does her 'consent' matter? Confronted with such delicate moral issues in 'native law' about which there were conflicting interpretations, and having seen the views of 'a Hindu Lady' in her letter to Times about the plight of her native sisters, Pinhey could not resist from saying in his verdict that:

'[i]t seems to me that it would be barbarous, a cruel, a revolting thing to do to compel a young lady under those circumstances to go to a man whom she dislikes, in order that he may cohabit with her against her will…' (p.38).

Pinhey's verdict naturally caused a stir in the hornets' nest ringing alarm bells to the native orthodoxy, while was hailed by native reformists. What is, however, deeply engrossing from this point on in the book is the painstakingly meticulous reconstruction done by Sudhir Chandra of the discourse on law-morality, justice-emancipation, civilisation and barbarism as reflected in the three layers of consciousness mentioned above. The author succeeds in forcefully communicating the ambivalences with which the contemporary minds grappled with these ideas.

2. Hegemony of 'Master's Logic'?

When the appeal court reversed Pinhey's verdict, the British 'enlightened' opinion was deeply sympathetic to Rukmabai's cause, while simultaneously engaged in finding justifications for the reversal of the verdict. All this happened in the framework of constructing a civilised self and the barbarous other. Commenting on the British response reflected in The Times, Sudhir Chandra provocatively sums up the substance in the following paragraph.

'Claiming credit for both Pinhey's verdict and its reversal, it [the Times] proclaimed the rulers' duty to root out native savagery and also justified their passivity. Their choice always sprang from principles; with them even the avoidance of obligation was an obligation. Their democratic ethos obliged them to tolerate the native law in Rukmabai's case.' (p.132).

If so much is for the 'masters' logic' in pursuing their principles of justice, the native orthodoxy is not way behind in the race of constructing righteous self and sinful other, as per both the native customs and the 'Hindu law', repeatedly highlighting the qualities of a virtuous woman under the sashtras. What may strike the readers perhaps as a more deeply intriguing irony is the discourse logic of the victim and the supporters of her cause. While advocating equality and freedom of women, their logic at times falls prey to the emulation of 'masters' logic' by representing a superior self and an inferior other (as justifications advanced in that specific case). Another equally intriguing ambiguity in their emancipation discourse is that it draws its strength repeatedly from an otherwise oppressive colonial state and legal principles enunciated by it.

The author, however, does not appear to have made any distinction between the masters invoking 'masters' logic', through which the victim of a native patriarchy becomes a victim second time - of the 'colonial justice', and the victim and her supporters invoking the same logic to extend the cause of justice as they perceived it. This point acquires a greater significance in the light of the fact that the author's feminist sympathies and respect for equal rights of women is more than explicit in the book. This also is perhaps the crux of the ambivalence of justice. The meaning of an 'empty signifier' like the idea of justice depends on both contextualising injustice as well as identification of the subordinated (or 'enslaved'). But both of them are not easy and straight forward processes, for their meanings are camouflaged in the labyrinth of the discourse on law and morality, which in turn is hegemonised by the dominant logic (that is, all actors tending to justify their position by constructing a superior moral self). In other words, the core of the dilemma is how to understand the idea of justice, when the subordinated are forced (by the parameters of the discourse set out by the existing sense of socio-cultural legitimacy and institutional logic) to resort to the hegemonic logic of the dominant in defending their own cause, could it lead to the emancipation of the subordinated? Or, would it make the cause susceptible to the appropriations by the dominant?[3]

The author left the answer to the readers' imagination, though he brings in the observation, in the 'epilogue' of the book, that more than hundred years after Dadaji vs. Rukmabai[4] the courts in India have:

'tilted just enough in favour of reformist ideas to make the existing law of restitution of conjugal rights about as liberal as the reformed English law of 1884' (p.206).

This is indicative of the manoeuvring ability of the dominant in appropriating the causes and languages of the subordinated, particularly when the latter's languages have been borrowed from the former.

3. Conclusion

Finally, one possible criticism against Sudhir Chandra could be that he does not provide any resource of hope, at least expressly so, for those who are engaged in the cause of emancipation of, and justice for, the subordinated. May be he consciously refrained from providing one. But a close and involved reading of the book could provide invaluable insights into the complexity and ambiguity of justice and emancipation on the one hand and, the pathologies of the dominant's logic as articulated in their efforts to preserve their order on the other. These insights also contribute to growing scepticism about advocating easy and often simplistic solutions (for example, the proposition of a uniform civil code as a means of enhancing justice for women in India), which lack sufficient comprehension of the complex problems and the contexts of the subordinated. Such insights, I believe, could be of immense value even for those critics.

One last word. The value of the book could have been further enhanced by providing a separate list of referred sources, at least for those who have interest in further research in this and related areas of interest.

Endnotes

1. Besides the current book under review, the following studies illustrate the growing interest in this area. See Janaki Nair, Women and Law and in Colonial India: A Social History (Delhi: Kali for Women in association with National Law School of India University, 1996); Radhika Singha, A Despotism of Law: Crime and Justice in Early Colonial India (New Delhi: OUP, 1998).

2. He, however, expressly leaves a fourth one, the 'psycho-social factors' that transformed Rukmabai to rebel 'where most women submitted' to suffering, for future research.

3. Traces of continuity of this dilemma in contemporary times are widespread. The latest example is the campaign for 'Dalit Rights as Human Rights' by many dalit groups in India.

4. One must be reminded that the period has been highlighted by more than sixty years of freedom struggles and forty years of independence under the guidance of a 'Republican Constitution' that guarantees equal protection and non-discrimination.


This is a Book review published on 19 December 2001.

Citation: Kakarala S, 'Enslaved Daughters: Colonialism, Law and Women's Rights', by Sudhir Chandra, Book review, 2001 (2) Law, Social Justice & Global Development Journal (LGD). <http://elj.warwick.ac.uk/global/issue/2001-2/kakarala.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2001_2/kakarala1/>


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