Between 1950 when the Constitution was adopted and today, the judiciary of India has been playing a dangerous game. It has been quoting, citing or otherwise referring to Manusmriti while passing Judgments. As both SCC Online and indiankanoon.org indicate, between 1950 and 2019, the Manusmriti has been thus used for the by the Supreme Court and several High Courts a total of 38 times, 26 of those (nearly 70%) being between 2009 and 2019, a period coinciding with the rise of virulent Hindutva across the subcontinent. Between 1989 and 2019, the Supreme Court has used Manusmriti in making their decisions in a total of 7 times. Even the Chartered High Courts of Bombay, Madras and Allahabad have referred to Manusmriti in multiple judgments. Only the Calcutta High Court has been a positive exception among the Chartered Courts in this regard till date. Once again, it must be borne in mind that West Bengal has not, till date, been ruled by any political party with an openly espoused right-wing leaning.
The numbers given above excludes the 7 times that the spelling-variant “Manusmrithi” was used between 1953 and 2014 by the High Courts of Madras, Kerala, Karnataka and Gujarat. Even that does not nullify the trend mentioned in the previous paragraph, for 4 out of those 7 instances occurred in the new millennium.
As stated before, first time the Supreme Court used Manusmriti in a judgment was 1989. Since then, it has used it 7 times till 2019. Let us look at the how the game unfolded:
On 22.12.1989, the Supreme Court passed Judgment in Vimla Bai v. Hiralal Gupta ((1990) 2SCC 22). Vimla Bai, Dhangar by caste, had adopted his nephew and this, subsequently had led to inheritance related complexities leading to lawsuit. It was in this judgment that, while analyzing the concept of ‘Bandhava’ in Hindu inheritance law that the Supreme Court, had, for the first time in its history, alluded to Manusmriti. Thankfully, the Court had adjudged in favour of Vimla Bai’s inheritance.
Again on 06.08.2008, the Supreme Court, in Rajbir Singh Dalal v. Chaudhari Devilal Lal University, Sirsa & Anr. (2008) 9SCC 284, referred to the Manusmriti, albeit in passing, while deliberating upon the Mimansa principles of Jaimini (6th cent. BC). In this Judgment, Justices (as they then were) Altamas Kabir and Markandey Katju, also alluded to the works of Shankaracharya, another Hindu law-maker whose highly casteist dicta of Hindu law have made communities in the subcontinent bleed for at least a millennium, all while upholding the superiority (all sorts of pun unintended) of the Mimansa Shastra even over Maxwell’s Laws of England on the question of casus omissus, the common law principles to apply in a situation omitted from or not provided for by statute or regulation. Their lordships had found this superiority in light of the fact that Maxwell does not speak of sub-categories of casus omissus, whereas Adhyadhara, the Hindu law equivalent whereas Mimansa Shastra ‘principles’ do in the form of Anusanga (or, elliptical extension), Anukarsha, Vakyashesha etc.
This judgment, using, primarily, an example of application of Anusanga by Jimutvahana in Dayabhaga, with respect to a Sloka of Manu that, as quoted by Jimutvahana, goes thus: “Of women married according to the Brahma, Daiva, Arsha, Gandharva, Prajapatya form, the property shall go to her husband if she dies without issue. But her property, given to her on marriage in the form called Asura, Rakshasa and Paisacha, on her death, shall become property of her parents.”, seeks to make a case for application of Mimansha Shastra principle on Anusanga, stating, that Jimutvahana, while interpreting the law of Manu encapsulated above, reasoned that, though the word property, in the first sentence is not classified by the phrase ‘given to her after marriage’ as it is in the second sentence, using the Anusanga principles, it can be said that even in the first sentence ‘property’ would mean property given to her after marriage. The Supreme Court was making a case for application of Mimansa principles in interpretation of laws and instruments and finally, it did indeed use the Mimansa principle of Anusanga to determine the qualification of the appellant to be a Reader in a University in Punjab.
This judgment was strictly about using Mimansa Shastra in interpretation of legalities in places where common law is silent. But by depending heavily on Manushastra to make a case in favour of Mimansa Shastra, an invisible floodgate seemed to have been unintentionally flung open by justices Kabir and Katju, neither of them being known to have shown much inclination toward right wing political understanding. The very next year, the Manusmriti was mentioned by as many as 4 times by the Higher Judiciary – once by the Supreme Court (Vijay Narayan Thatte & Ors. v. State of Maharashtra & Ors. (2009) 9SCC 92), albeit in passing while discussing, once again, the Mimansa principles of interpretation, asserting, once again, the superiority of this over Maxwell’s common law interpretation, twice by the Delhi High Court – in both cases using Manusmriti Chapter 9, Section 108 as an authority to establish the legal duty of manager of joint Mitakshara family to maintain all members of the family, their wives and their children (both cases titled Narang v. Narang, 2009 SCCOnline Delhi 56 and 2009 SCCOnline Delhi 4205) and once even by the Kerala High Court (VV Verghese v. The Kerala State Election Commission & Anr. 2009 SCCOnline Ker 2541).
The last mentioned judgment is the most disturbing in its interpretation on the historicity of Indian democracy, stating, while citing Grama Sanghas mentioned in Manusmriti as examples, that, according to the Kerala High Court, established that “the history of Indian democracy would show that it was value based only.” Given the historic reality, established by historians galore, that (a), the Constitution, and not the Vedas or Manusmriti, is the official document that operates the functions of democracy in India and (b) the Vedic and Veda-mandated (Vedasiddha, i.e. Brahmanyavadin or, in today’s parlance, Brahminical) societies have historically been casteist in fundamental nature, the Kerala High Court judgment of 2009 does indeed reveal disturbing pro-caste distortions of historicity in its judicial understanding on democracy.
Clearly, the game was getting dangerous. In the end of the first decade, India stood at the brink Hindutva-Fascism that was soon to engulf its polity and suck the world’s biggest so-called democracy down its hitherto bottomless abyss. The judiciary, along with the two other so-called pillars of the so-called democracy, was to be severely impacted.
In 2012, Justice Vikramjit Sen (as he then was), in GM Venkatareddy v. Deputy Comm., Kolar (2012 SCC OnLine Kar 7533) used a particular Sloka of Manusmriti to validate his point on adverse possession Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978. Though he used it for a prima facie gainful purpose of invalidating legal rights flowing from adverse possession of lands by an upper caste person in light of the abovementioned Act, it is the content of the Sloka that makes its use by the judiciary to prove a legal point a highly contentious issue. The Sloka, from Chapter VIII of Manusmriti, goes thus: “A pledge, a boundary, the property of infants, an (open) deposit, a sealed deposit, women, the property of the King and the wealth of a Srotriya are not lost in consequence of (adverse) enjoyment”. In effect, by 2012, we see the Indian Higher Judiciary is validating the use of a Sloka that regards woman as chattel, the right over whom by whose owner is not lost through adverse possession, to establish its legal point.
Then, in 2014, in a matter involving the question of maintenance with regards to Muslim personal law, the Karnataka High Court began its Judgment in the case of Mehrunnisa v. Syed Habib 2014 SCC OnLine Kar 11926 thus:
“I, feel it is just and appropriate to start this judgment by quoting a great universal verse, in Manusmrithi which often referred with regard to the protection of the women, which is being admired with great respects, irrespective of caste, creed, colour and religion;
“Pita rakshathi kaumare, bhartha rakshathi youvane, Putrah rakshathi vrudhapye, na stree swatantryam arhathi” (original is in Sanskrit)
Means-a women (sic.) is protected by father in her childhood, her husband protects her in youth, and in old age she should be protected by her son. At no stage in her life should a woman be left alone and destitute. She deserves protection by man at every stage of her life.”
This is the entire content of Paragraph 1 of this judgment, and based on the tune set by this quotation decides is matter, in a case, let us repeat lest the irony is lost, Muslim personal law. The judge finds this Sloka, which clearly asserts the authority of men over women and seeks to deny her right to financial independence from men, “great” and “universal”, so much so that he finds it to be “admired with great respects, irrespective of caste, creed, colour and religion”, again, so much so that he has no qualms in making this his fundamental basis for a judgment delivered on Muslim personal law. Let us not make any inquiry on who are those people whom the judge finds to admire this Sloka and what is says so fervently. Let us, for the sake of decency if nothing else, ensure that we are not those people.
By this time, that is 2014-15, the pattern seems to have become set and clear. It has become okay to use Manusmriti, no matter how nefarious are the pronunciations, enunciations, intents and purposes of the Sloka that is being used from there, as long as the ends to which it is being used are noble, such as, as in the case of Mehrunnisa v. Syed Habib, the right of Muslim women to maintenance under Muslim personal law. This last mentioned judgment of the Karnataka High Court does indeed open yet another dangerous door – it expands the scope of applicability of Manusmriti even beyond the context of Hindu personal laws. This judgment seems to effectively remove the impediment on the usage of Manusmriti tenets and Slokas by the constitutionally secular judiciary of India to adjudicate on matters of personal law involving people belonging to other minority religions of India beyond Hinduism.
In continuation with this trend and pattern, the Chhattisgarh High Court, that same year, also quoted a Sloka of Manu and made it the principal basis for drawing a legal conclusion that a husband has duty to pay maintenance to wife even after getting a decree for restitution of conjugal rights in his favour and the wife refuses to comply with the decree. Once again, the uncited Sloka used by the CG High Court in Jaiswal v. Jaiswal (2014 SCC OnLine Chh 63) to reach this per se socially benign conclusion is laced with patriarchal colours. It goes thus: “A husband, who had to go abroad for business, may depart after securing a maintenance for his wife, even though virtuous may go astray distressed by want of subsistence”. Literally, the judiciary here is reasoning in favour of maintenance lest “virtuous may go astray distressed by want of subsistence”.
By the middle of the second decade of the 21st century, the trend in Indian Judiciary of using Manusmriti to interpret tenets of law, especially on questions of family, property and inheritance in light of Hindu personal laws, has been set for good. It is in continuation of this that, in 2016, we see the Gauhati High Court undertaking a zealous interpretation of father son duties in light of the Manusmriti (Das v. Das 2016 SCC OnLine Gau 709). We hear the higher judiciary of Assam and the north east, on the question of adoption, enthusiastically referring to Manu’s laws to establish a spiritual nature of the father-son relationship and how this spiritual nature between biological father and son gets severed in favour of a similar spiritually founded father-son relationship in case of adoption.
To understand the extent to which Manuvad and spirituality has made inroads into the Indian Higher Judiciary, especially on the question of interpretation of Hindu law, one must have a look at the relevant portions from Paragraphs 12 and 13 of the last mentioned Gauhati High Court Judgment of 2016.
“In Hindu law, inheritance is linked with spiritual responsibility. A son has pious liability to discharge debts of his father and so he has right to inherit his assets. Conversely, inheritance presupposes existence of spiritual liability. A son absolves a father from his liability of debt and consequently fosters his spiritual upliftment by emancipating from hell called “Pu” and this is the reason according to Manusmriti for coinage of the word “Putra”. For reference one can have a look at verse No. 135 of Chapter IX of Manusmriti which is quoted below:
Pu Namno Narakachhsmattrayte Pitaram Sutah
Tasmatputra Iti Proktah Swaymeva Swayamvut
The meaning of the above shloka is that one who salvages someone from the hell called ‘pu’ is called as ‘putra’. This is because it is the ‘putra’ alone who gives oblation after death of a Hindu for salvation of his soul. Under such circumstances, a person can pay oblation for one father only. This is why when adoption takes place, the adopted son can no longer pay oblation for his biological father. The result is that all spiritual relationships with his biological parents get snapped the moment a child is given in adoption to somebody else. The adoptive father becomes the father not only for religious purposes but also for other incidents of life including inheritance.”
Even in this Judgment, the High Court uses a Manusmriti Sloka as a valid authority. That is precisely where the shoe pinches hard. The judgment seeks entrench concepts of ‘heaven’, ‘hell’, ‘spirituality’ and ‘soul’ in the light of Manusmriti and Hinduism in general, concepts that do not stand to reason in the rational inspection of progressive modernity, to analyze a personal law (the Hindu Adoptions and Maintenance Act, 1956, hereinafter – HAMA) of a democratic nation whose Constitution espouses secular and equitable approach to law and life. Furthermore, the judgment uses Manusmriti to deny a biological father of maintenance once his son gets adopted by someone else. Neither does this Judgment nor does Manusmriti pay any heed to the reality, verily feasible, that the biological father may be in dire need of such maintenance. What we see here is the judiciary subverting such reality, real needs of real people, in light of the Manusmriti, and in light of concepts of soul, spirituality, heaven and hell espoused in the particular Sloka of Manusmriti the Gauhati High Court invokes in the 2016 Judgment of Das v. Das, we can clearly observe the acceptance of Manusmriti by the Indian higher judiciary.
This Judgment stands today, unreversed, as a law of the land for areas within the territorial jurisdiction of the Gauhati High Court, being the states of Assam, Arunachal Pradesh, Nagaland and Mizoram. It is open to be used and applied in by other courts and tribunals in light of the principle of stare decisis, its implication thus amenable to spreading. I have pondered laboriously over these implications. The immediate implications are that, along with Manusmriti Slokas, even concepts of heaven, hell, soul and spirituality in Hinduism can be used as factors for reasoning in case of Hindu personal law. However, as the HAMA and many other legislations of Hindu personal law goes, Hinduism includes Buddhism, Jainism, Sikhism etc. The understanding of these 4 concepts – heaven, hell, soul and spirituality, differs in all these religions. Does this Judgment and other ones that use Manusmriti as a tool to interpret Hindu personal law, not imply that Manusmriti, the tenet of the majority religion of India, is being imposed on Buddhism, Jainism, Sikhism etc, all of which are minority religions here? If not, or ample checks, balances and non obstante exclusions being put in appropriate places? Evidence, in the form of judicial pronouncements, does not seem to indicate so.
Further, the moment Manusmriti is being used to explore into the nature of father-son relationship, especially in light of adoptions and maintenance, yet another vicious door is being kicked open – that of Gotra. Gotra lies at the root of the very function of casteism that has enabled Brahmanyavad to wreck havoc on the lives – verily real and material – of the Dalit-Bahujan-Adivasi people of South and even South East Asia for at least two thousand years. Gotra, in essence, is the function that holds the structure of the caste-system – the Varnashrama Dharma – in place. It is not that the Gotra has not been discussed in light of Hindu laws by the Indian Judiciary before. In fact, as far back as in 1915, in a case on adoption involving Bal Gangadhar Tilak, (Balgangadhar Tilak v. Sreenivas Pandit AIR 1915, PC 7), the Privy Council had held that “Shudras do not have any Gotra”. The new thing that the 2016 Judgment of the Gauhati High Court does is that it throws Manusmriti in the mix, in the process of interpreting Gotra and father son relationship. One of the functions of Manusmriti has been to determine the caste-bound nature of the father-son relationship, in light of Gotra, using concepts of heaven, hell, spirituality and the soul as religious, verily Brahmanyavadin, justifications of maintaining the same, through operation of the Gotra.
One might wonder, does this Gauhati Judgment then not, by implication, affirm judicial acceptance of Manusmriti in the judiciary’s understanding of Gotra? There is nothing in the text of the Judgment that seems to suggest otherwise. The second question that is then bound to rise as an obvious corollary to the first one is this, that, does such not this affirmation of Manusmriti as a valid text of Hindu law in the understanding of Gotra by the judiciary, including the acceptance of the line of reasoning based on heaven, hell, soul and spirituality taken by Manu in this regard through the Sloka quoted in pargraph 18 of the Das v. Das Judgment of Gauhati High Court as passed in 2016, constitute an implicit acceptance of the caste system by the higher judiciary of the country? For, how can one accept a function (in this case – the Gotra) and yet ignore the structure (in this case – the caste-system) that this function, i.e., Gotra, formulates and upholds over centuries?
Articles 14-18 of the Constitution, in effect, seek to abolish the casteism and its impact through law. The front door is thus still shut. But a backdoor has definitely been opened in the recent years through repeated and zealous invocation of Manusmriti by the Indian Higher Judiciary.
To be very honest, 2016 was not the first time that Manusmriti and the caste-based distinctions envisaged by it were granted legal salt by the judiciary. Back in 1976, to wit, the Board of Revenue, Uttarpradesh through Paragraph 8 of judgment of Kushma v. Baldeo etc (1975 SCC OnLine BoR (UP) 53). gives an explicit judicial validation to the Manusmriti-mandated caste-based distinction on the question of naming (Namkaran in Hindu Law), with the following words: “The Manusmriti lays down the formalities to be undergone for the Namkaran ceremony and also enumerates the criteria according to which the names of Brahmins, Kshatriyas, Vaishyas and Sudras should be given.” Thus, this path of backdoor entry of casteism-acceptance, this implicit acceptance of Manusmriti and its caste-based distinctions as foundational tenets of Hindu law and making the same the basis of judicial reasoning, is not a new process. Just that, it has received a shot in the arms in the past ten years or so.
It is true that certain checks and balances have also been provided in the recent past by the Apex Court. On 27.09.2019, via the back to back 5 Judge Bench Judgments in Joseph Shine v. Union of India ((2019) 3 SCC 39 and (2018 SCC OnLine SC 1676)), adultery was decriminalized (though retained as a civil wrong qua family), and on the very next day, in the 5 Judge Bench Judgment on the Shabarimala Temple Entry case, viz., Indian Young Lawyers Association & Ors. ((2019) 11 SCC 1), a notification preventing menstruating women from entering the Shabarimala Temple was determined illegal and unconstitutional. In both the Judgments, Manusmriti was identified as a patriarchal text and differed with by the court. Thus, at least the irrelevance of Manusmriti on questions of adultery and temple entry of menstruating women has been established.
Very interestingly, a similar check was put in place by the Madras High Court way back in 1953. Manusmriti, through Slokas IX:77-83, per, Colebrooke’s translations based on the commentary on Manusmriti by Culuka Bhatta, lays certain dicta on the situations validating second marriage by husband while the first wife is still alive. These Slokas lay down the grounds for such remarriage and also specify that the first wife has no right to leave her husband when he marries for the second time. These Slokas even mandate that if the first wife wishes to leave, she is to be bound and forced to stay. In the 19th century, when the colonizers started interpreting Hindu law and making judicial decisions based on the same and saw nothing wrong with this. Even if they did, they thought it best to not impose rationalism on Hindu tenets, so as not to anger the empowered section of their Hindu colonial subjects. They relied heavily on Colebrooke’s understanding to pass judgments on this issue. As a result, we not only observe a catena of Judgments by various higher judicial authorities of colonial India where such terrible dicta had been upheld throughout the entire of the 19th and the early 20th century, but we also offer implicit acknowledgment of such tenets sanctifying gross gender violence in seminal works on Hindu personal laws such as those by Mulla (Principles of Hindu Law, 6th Edn. at p. 611) and Mitter (The Position of Women in Hindu Law by Dwarakanath Mitter, at p. 317).
However, observing a shift in the trend of judiciary in favour of more equitable and modern attitudes since 1936, the Madras High Court, in Nagendramma v. Ramakotayya 1953 SCC OnLine Mad 263, invalidated the applicability of such heinous dicta of Manusmriti in the modern Indian judicial decision-making process. Such checks and balances sought to be sanctioned on unfettered application of tenets and dicta of Manusmriti by the judiciary on itself is laudable, but is also something that has observed in times too few and far between. In fact, other than the three judgments discussed in this and the few previous paragraphs, we do not see the same being done by the independent Indian judiciary ever.
Unfortunately, only 3 years after this laudable effort, we find the Madras High Court, in Mardi v. Mardi, (1956 SCC OnLine Mad 186), referring to Manu as a “Sage”. However, perhaps, given that the only two times that certain portions of Manusmriti have been expressly refuted by Apex Court has come recently, i.e., in September 2018, perhaps we do observe a ray of hope, that more such of iniquitous provisions of Manusmriti and other Brahmanyavadin sources of Hindu law will be refuted in the coming future, despite the realpolitik involving Brahmanyavad that engulfs India today.
Furthermore, the invocation of Manusmriti to establish per se socially gainful ends, for example, the validity of gifts given to daughters by their paternal and maternal family during marriage and even advance provisions in some cases (as done by the Supreme Court as recently as September last year in Vithadas Jagannath Katri through Shakuntala alias Sushma & Ors. v. State of Maharashtra Revenue and Forest Deptt. & Ors. (2019 SCCOnline SC 1125)) has been a trend since in continuance. It goes without saying that, this is dangerous. It makes us inch closer to a dystopian reality where the judiciary accepts Manusmriti, Gotra and, through these, caste-distinctions. Disturbing inclinations towards this have already been found, and too many a times to ignore.
The fact that the Indian higher judiciary, in the nearly 40 times that it has invoked the Manusmriti, have sought to distinguish it or differ from specific opinions expressed in specific Slokas of the Manusmriti only around 3 times, while, in all the other cases, have continued upholding other Slokas, quoted or unquoted, cited or uncited, and basing its judgments on such Slokas etc, is what makes this approach dangerous. This approach is clearly giving legal sanctity to Manusmriti, one of the vilest Hindu texts in terms of the casteism and patriarchy foundationally entrenched in it. Not only that, the higher judiciary seems to be expanding its scope even beyond Hindu law – as clearly seen in Paragraph 1 of the 2014 Karnataka High Court judgment in Mehrunnisa v. Syed Habib. Bit by bit, case by case, Sloka by Sloka, the Indian higher judiciary is in the process of establishing a legal situation that the Manusmriti and its Slokas are legally valid and can be used to base judgments on, unless specifically differed with or distinguished, and, as it stands today, any Sloka of Manusmriti has been differed with or distinguished only thrice – once by the Madras High Court in 1953 and by the twice by the Supreme Court in September 2018 with its landmark judgments on Shabarimala temple entry and decriminalization of adultery.
I am not arguing for the absurd notion of invalidation of the principles of Daybhaga or Mitakshara in Hindu family, property and personal laws or even in favour of abandonment of invocation Mimansa principles of interpretation by the judiciary in places where the common law is silent. But using Manusmriti, accepting its various tenets, dicta and Sloka to interpret even the Mitakshara or the Mimansa principles is no less dangerous, because such use also indicates implicit judicial validation of Manusmriti. And it would be naïve to argue that one can accept Manusmriti and yet reject its verily casteist foundations, for casteism is indeed perhaps a basic structure of Manusmriti and the vile Manuvada that is based upon it.
Equity, the world over, is ailing. This growing trend towards the acceptance and validation of Manusmriti by the higher echelons of the Indian judiciary is, one might argue, a definitive symptom of this ailment. Let us be aware of this ailment, its symptoms and dangers posed, for, what else can we really do?
Atindriyo Chakraborty is a writer and poet