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Law, gender equality, and social justice in India

My research interests have for more than five decades been directly or obliquely related to the making and administration of laws, especially with regard to women, in colonial and independent India. Indeed, my first series of articles, which appeared in the early 1960s, was on social reform and legislation in 19th century India. A little later, while researching for my doctoral dissertation on early Indian nationalism, I got interested in the Maharaja Libel Case, which had been occasioned by the redoubtable social reformer Karsondas Mulji’s exposure of the sexual abuse of their female followers by certain Vaishnav maharajas. Revelations in this case had led Justice Arnould to observe in a landmark judgment: “What is morally wrong cannot be theologically right.”

Years later, I stumbled upon an 1885 editorial on a Bombay High Court judgment in a case involving a woman who, married as an eleven-year-old, had refused to cohabit with a husband she disliked. This was the now famous but then little known Rukhmabai case, and I ended up writing a whole book on it.

Beginning with the prohibition of Sati down to the enactment of the various Hindu Codes in the immediate wake of independence, the large body of modern laws relating to women has emerged over a century and a half. This has been a momentous and fascinating development, involving mutually interacting diverse forces, agencies, and processes. In each specific instance it followed one particular pattern, which now has become all too familiar. It would commence as a barely felt need for legal change, which would grow into a demand for legislation, but not without simultaneously provoking opposition and public controversy; then would ensue the actual – often prolonged and difficult – process of legislation.

Finally, no matter how clear its language, the enactment would set in motion the interminable process of actual, even mutually irreconcilable, judicial interpretations and decisions.

What is surprising, though, is the faith people still retain in the efficacy of law.

For long my long engagement with different aspects of this development was informed with great faith in the efficacy and goodwill of law. That faith then began, initially imperceptibly, to be eroded. The erosion, it appears in hindsight, was set in motion by a study in which I concentrated on literature in different Indian languages to understand the nature of modern Indian social consciousness, a theme that inevitably included the question of reform. What sealed the growing erosion was the post-history of the Rukhmabai case.

Embarrassed that its law relating to restitution of conjugal rights had nearly sent an innocent woman to jail for no crime but upholding the dignity of her person as a woman, the colonial Indian government first sought to modify the existing law, only to eventually give in to organised orthodoxy. A hundred years later, in independent India, the law was interpreted by the country’s Supreme Court just in the way it was in Rukhmabai’s case.

The unsuspected discovery that, for all its vaunted material, affective, ideological and other advances, the country has deep down remained like it was, provides a different, and more realistic, understanding of the nature of laws. Speaking only of laws relating to women, this understanding suggests that, leaving aside the relative effectiveness of Bentinck’s abolition of Sati, laws have in real life been rarely more than marginally effective. Further, whatever effect they have had has depended significantly on extra-legal forces and developments.

Recall Ishwar Chandra Vidyasagar’s great effort that led to the Hindu Widow Remarriage Act of 1856. The celebrated reformer lived to witness the Act’s ineffectuality and died a sad disillusioned man. If things have since changed for the better, little credit can be assigned to the Act. Recall, for all the adavancement and awakening during the intervening hundred and forty-sx years, the more dismal fate of the Female Infanticide Prevention Act of 1870. Recall, also, the work done by Behramji Malabari, than whom the women of India have not known a more ardent friend. In getting the Age of Consent passed through tireless campaigning in India and Britain, Malabari had hoped to protect married girls from marital rape.

Pragmatic considerations had forced him to agree to what he admitted was a ridiculously low age of consent. He had, however, hoped that, once the principle of rape within marriage was accepted, the low age would in course of time be raised. Malabari’s hope with regard to age has materialised, but the substantive idea of rape within marriage remains a dream. Let alone the tricky idea of minimum age for marital intercourse, even the plainer prohibition of child marriage continues to be openly and regularly defied.

Examples, unsurprisingly, can be multiplied ad nauseum.

What is surprising, though, is the faith people still retain in the efficacy of law. Come any crisis, there is an immediate demand for stronger, harsher laws. Quotidian experience of law apart, even the wise dictum that ‘hard cases make bad laws’ is forgotten, as is the fact that, in a functioning democracy, harsher laws render conviction that much more difficult.

Featured image credit: Indian women in field, by Unsplash. CC0 Public Domain via Pixabay

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