Often, in order to mask present inadequacies, societies invent ways to appeal to an imagined gloried past, similar to what Johannes Hofer described as nostalgia. To that end, the historical heritage of India serves as a good source; its vast literature can be harnessed to invoke such imaginations.
Delhi University’s Faculty of Law tried to match the same appeal when it announced the proposal for the incorporation of classical Hindu jurisprudential commentary the Manusmriti (100 AD) as a distinct part of the law syllabus for undergraduate studies. As expected, the move faced intense criticism across the spectrum, eventually prompting the University to cancel the move.
Reaction to the announcement was not a surprise, as those well-versed in Indian political history know how opposition to the Manusmriti was central to the assertion of Dalit dignity, notably the heroic act of its burning in 1927 by Dr BR Ambedkar, now widely considered an iconic moment in the fight for Dalit dignity. The move was criticised as an attempt to promote casteist bias and neglect of the Dalit identity. Damage control by canceling the move offers no solution. The controversy, therefore, needs to be appreciated with mature understating to find a better answer.
Historical texts are an essential part of the legal studies
It is common for students in every field of modern education to spend some of their time learning the history of their discipline to appreciate the contributions made in the past that made the advancement of the present possible. However, the legal field is hugely different in this regard.
Thinkers of the stature of Maine, Savigny and Maitland, in their seminal works, underscored the importance of legal history. For the legal field, history is encapsulated in terms of a perennial sacred river that provides the current practitioners with the distilled knowledge of historical traditions, starting from the ancient laws of Babylon. Legal history is a vast landscape that covers Roman-Greek law, the ancient West, the Chinese-Confucian traditions, religious laws, common law and customary traditions, just to name a few.
India is no different, and that becomes abundantly clear in the case of personal laws. Any student of such would testify how customs, traditions and rules of ancient texts are interwoven in the fabric of laws that are still in practice. Some texts have a share in shaping Indian society at a deep level. For example, in the case of the iconic authoritative commentary on Hindu laws Miatakshara by Vijnaneshwara has had such a far-reaching impact that its legacy “still resonates in India’s modern legal system”, as observed by Justice Indresh of Karnataka High Court in a recent conference at the Central University of Karnataka.
Take an example to further highlight the point: in Vedic times, marital unity between a man and a woman was bestowed upon the performance of sacred rites detailed in the Rig Veda. The continuous practice of such is so embedded in the institution of Hindu marriage that Section 7 of the Hindu Marriage Act, 1955, provides that where, “…rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.” The spiritual significance of this is highlighted by the address following Saptapadi, “… into my will, I take thy heart, thy mind shall follow mine.”
The legal significance of such a requirement is more than merely performative in nature, as non-performance of this essential ceremony results in making the supposed marriage non-est (void) in the eyes of the law. This was also noted in the recent judgment of Justice Nagarathna, (Dolly Rani v. Manish Kumar, 2024): “A marriage is not an event for ‘song and dance’ and ‘wining and dining’ … a special place is given to rites and ceremonies in the [Hindu Marriage] Act. that the critical conditions for the solemnizing of a Hindu marriage should be assiduously, strictly and religiously followed … the genesis of a sacred process cannot be a trivial affair.”
Similar provisions in other laws also sanctify religious practices. For example, “Ashirvad” ceremony of the Parsi community under Section 3(1)(b) of The Parsi Marriage and Divorce Act, 1936 or, Shariat laws applicable to Muslim marriages under The Muslim Personal Law (Shariat) Application Act, 1937. Such coalescence likewise exists to such an extent in some provisions of personal laws that a rule of positive law laid in statute books upon careful discovery reveals itself as an extension of some ancient religious-legal authority.
Hence, the introduction of historical texts features regularly in the legal curriculum. But what amazes one the most is when a historical text is specifically added that has a chequered history of both influencing the values of Hindu society and sustaining prejudices against lower castes. That text is Manusmriti.
Two faces of Manusmriti
An exhaustive code running into thousands of verses, the mythical tale of Manu, the first man, is central to the divine origins of the Manusmriti.
Of these thousands of verses, some important verses of the code are more philosophical. For example, (See reference here), “… advise against selfishness - verse 2.2”; “Dharma protects those who protect dharma - verse 8.15” and many other verses which highlight spiritual messages. Also, there is a significant part of the code which details regulations on topics ranging from mundane household activities to the prescription of ethical behaviour for kings and other subjects.
However, apart from these verses and segments, there are many problematic verses in the code that promote caste bias and are derogatory to women. For example, (See reference here), “... creation of castes, whereupon the lower castes are given an inferior divine origin - verse 1.31”, “… permanent servile status accorded to lower castes - verse 1.91”, “… creation of institutional monopoly over matters of learning - verse 1.103”, “… denial of agency or freedom to women- verses 5.145/146”,”… excessive punishment for lower castes and exception therefrom for upper castes-verse 8.124.”
Manusmriti, thus, is a text of moral sanctions wrapped in religious sanctimony that reflects the outdated mindset of a bygone age that is grossly irrelevant to modern rational society. In historical terms, its creation came at a time when ritualistic Puranic hold over Hindu society was most potent. That explains its unique emphasis on controlling seemingly unimportant aspects of life.
The above context explains why so many well-intentioned people have intensely criticised the announcement of the incorporation of the text into the undergraduate law syllabus. Their apprehension that this move will foster a sense of division and discrimination based on the identity of caste is squarely legitimate, that too in classrooms of law colleges filled with impressionable young students who are vulnerable to the present hyper-charged political environment where the distinction between “real facts” and “alternative fiction” has increasingly become blurred.
How to fulfill the purpose of legal education
Quality legal education is sine qua non for creating competent lawyers, and one essential aspect of such education is the inculcation of ethical values upon which the Constitutional edifice stands and the liberal democracy thrives. This is not a mere dream to build a better future; rather it is a hard necessity to have a functioning democracy. The announcement unfortunately appears more like an effort to promote hidden political agendas over genuine academic interest, which does not serve the ends of legal education in any shape or form.
As Gandhi famously said, “A lawyer is the salt of the nation”. Then, the choice becomes automatically clear - no student worth his salt would demand an education that comes at the expense of the shame and humiliation of his fellow brothers, as no amount of learning is greater than the spirit of common brotherhood enshrined in the Preamble of the Constitution of India.
Aditya Raj Singh Yadav is an Advocate practicing before the Delhi High Court and Sessions & District Courts, Delhi.