Abstract
Manusmriti is an vedic indian text which is originally composed by the swayambhu Manu at the starting of the Indian Vedic Civilization to be followed by the people of the society to live in a systematic way of life which is based on law and order as per according to the norms and customs of that period of time. Manusmriti is also known as Manu Dharma Shastra which literally translates into The rules of Dharma as prescribed by Manu. Over the 100s of years this Manusmriti has served its contribution as a source of law and helped to codify the law as per the morale of the society. But due to modernization and globalisation people of today’s generation are not ready to accept the law and its operations based upon this Vedic text which has become obsolete and backward in the eyes of the modern human being. Over the years of human evolution the nuances of morality and legality have undergone various changes, so do the Sources of the Law in Indian society. As it always said, the Law is Dynamic in nature which means it undergoes numerous changes and doesn’t always remain constant so the sources of Law which the authorities look upon to codify the law have to be changed over the course of the time. The Law authorities should revise and reiterate the sources of law in this era based upon the societal understandings and the mental state of a human being in this modern era. If we are not induced to that type of change it would definitely result in the institutional laggingness of a law body or government institution. The change in the perspective of the human sight only will result in the forwardness of the social order.
Keywords : Manusmriti, Source of law, Manu Dharmashastra, Dynamic nature of law, Modernization, Society
Introduction
The Manu Dharmashastra is widely popular in the vedic age because the people of that particular period believed that the social order and regularity of the society is regarded as the will and intent of God’s choice. According to many it is proved that the usage of Manusmriti dates back to 5th century BCE. It describes the social system from the time of Aryan civilization. It is very
imperative to the King and the administration to provide justice to the people for their grievances. In that period there were no certain codified or statute laws so the rulers followed the Manusmriti for the delivery of justice. Later on that the times have changed so does the society.
The laws began to change from jury trials to one-day hearing instant justice, the judiciary system has undergone so much evolution.
But the sources on which our law is based remained constant. The real problem started when this vedic style legal text began to deliver law in this modern era based upon its convenience of legality. The Manusmriti proposes various laws to govern human life and its code of conduct as applicable to each human individual according to his or her social class, duties, societal status and responsibilities. But those laws are becoming out of context in these days of modernization mainly due to its rigidness and scope of applicability. Most of the laws propounded by this text do not fit into the present day of social order. The Manusmriti consider the gender and social inequalities present in this generation as a mere conditional distress of human behaviour and provide the laws only to moralise the cultural and behavioural pattern of humans without providing any space for the new social change in the society. When it’s being formulated the Manusmriti doesn’t find any scope to cater the necessary laws and rules for the people of third gender community, people of lower caste and untouchables, people belonging especially to the scheduled tribes and groups, children and mainly women form various socially distressed backgrounds like widows, single women, survivors of harassment and assault, girl child who faced discrimination and various evils like child-marriage, child abuse, acid attacks, etc. Today when the judiciary delivers verdict by sourcing upon the primitive texts like these the people belonging to above mentioned categories and from many other marginalised groups find it difficult to cope up and live according to the rigid social order which ultimately finds its base in texts like these. That’s Why people of today find laws coined by Manu outdated, rigid, intolerant, primitive. So it’s high time that the government and the law bodies should reconsider their choice by quoting the Manusmriti as the primary source of the Indian law and open its hands to the more socially inclusive society by treating every individual irrespective of their social and gender orientation.
Research Methodology
This work of research is of descriptive in kind and the research is based on the secondary sources for the deep analysis of the Manusmriti and sources of law in India. The secondary sources of information like newspapers, news portals, blogs, websites are used for the research.
Review of Literature
Many people today feel it relevant to commemorate the day of Manusmriti Dahan Divas which was actually started by Dr. BR. Ambedkar on 25th December of 1927. Ambedkar carried out this move as a feat of new social order as he deeply believed that Manusmriti had been a great social hindrance to achieve social equality as it mainly preached about the caste system and glorification of untouchability and social discrimination. The text of Manusmriti has always been intolerant towards certain communities in society especially towards women and people of lower caste.
Over the years the Manusmriti has been regarded as the root cause of sexism in Indian society as it always denigrated the status of Women both in terms of social and personal bubble of individual livelihood. Many Dalit activists and leaders of various diaspora countered the Manusmriti as the benefactor of casteism and called out its intolerant nature towards certain social groups on various levels.
It’s very obvious that people of the scheduled caste and tribe are always subjected to evil confrontation by the laws of the Manusmriti which points towards the caste system. It is always proved that a strong and inclusive society can’t coexist with the presence of casteism and gender inequality. It is very surprising that these two social evils have always existed since centuries.
Let’s find out what the Manusmriti says about the caste- system :
1. For the welfare of Mankind, the creator of the universe Brahma gave birth to Brahmins from his mouth, the Kshatriyas from his shoulders, the Vaishyas from his thighs, and the Shudras from his feet. ( I-31)
2. The only primary duty of the Shudra is to serve the upper varnas with faith , devotion and dedication. They should not outrage against the people of higher class. ( 1-91) 3. A 100 year old kshatriya must treat a 10 year old Brahmin boy as a fatherly personality. ( 11- 135 )
4. A shudra is unfit for education or any vedic knowledge. No upper varnas should not impart education to shudras. The violators will go to hell. ( IV- 78 to 81 ) 5. A priest must never read the vedas in the presence of Shudra people. ( IV- 99 )
6. He who imparts education to the Shudra is disqualified to attend a Shraddha. ( III- 156) 7. A Brahmin must not invite the people of other varnas for the feast of food especially Shudras. He may give some leftovers to be served by his servants only. ( II 2 ) 8. A shudra who insults a Brahmin shall have his tongue cut out. ( VIII- 270) 9. If a shudra presumes to preach vedas to Brahmins arrogantly, the king should cut his mouth and ears. ( VIII- 272)
10. If a shudra wants a great or higher birth or wants to go to heaven he must serve a Brahmin. ( IX- 334, 335)
The above-mentioned verses are some of many texts which are in Manusmriti which propagate or cater to the means of class discrimination in that society.
Today in our society these types of moral or so called varna dharmas do not exist or no person tends to follow these types of rules. These are clearly termed as the demonic and archaic by many social reformers. This type of caste based moral codes often gave rise to many anti-social acts like Discrimination, Untouchability, Mob lynching, Conceit, Social intolerance and many more.
These types of law or rules are not meant to be in existence and now perished up to much extent in our social culture. Lets see what the Constitution of India tells us about the caste -system as follows :
> Article 14 of the Constitution of India states that “ The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India” .
> Article 15 of the Constitution of India ensures “Prohibition of discrimination on grounds of religion, race, caste, sex, place of birth or any of them”.
> Article 16 of the Constitution of India states that “ No citizen of India shall be discriminated on the basis of race, caste, religion, creed, descent or place of birth in respect of any employment or office under the state”.
> Article 17 of the Constitution of India ensures the “ Abolition of Untouchability “.
> Article 21 of the Constitution of India provides ‘ Protection of Life and Right to Personal Liberty’.
> Article 44 states that “ The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’’.
> Article 341 of the Indian Constitution authorises the President to declare certain castes and classes as Scheduled Castes in a state or a union territory. It also states that the Parliament can include or exclude any caste or tribe from the list. Similar provisions are stated for the Scheduled Tribes in Article 342.
Status of a Woman as per Manusmriti
The role of a Woman in both domestic and social affairs is always considered as a pious one because the existence and companionship of a lady in a man’s life completes his life and connotes a newer identity to his livelihood in every aspect. This is widely regarded as the truth in our society and everyone accepts this. But the Manusmriti often describes the woman and her existence as a mere subordinate but not as a main entity in a man’s life. The text always enties the role of a woman with the domestic obligations only and refrains her character from being the primary member in
her own family. It often solemnised the quality of a woman as a domestic help to the husband in his livelihood chores. Now let’s see what Manusmriti tells about the status of a woman/ wife in the society :
> “ Though he may bereft of virtue given to lust and totally devoid of good qualities, a good woman should always worship her husband like a God” ( V-154)
> “ Her father guards her in her childhood her husband guards in her youth and her sons guard in her old age ; a woman is not qualified to act independently” ( IX-3)
> “ He should employ her in the collection and the distribution of wealth in cleaning, in meritorious activity, in cooking food and in looking after her household chores. ( IX-11)
> “ A woman should remain devoted to her man, patient, controlled, and celibate until her death even after her husband’s death.” ( V-158)
> “ If a woman commits a transgression against her husband she should be cast out of three months and be deprived of her ornaments, furniture.( IX-78)
> “ If a wife ceases to sparkle around her husband, the entire household remain barren so does their lives” ( III-61)
“ No expiation or atonement is prescribed for the man who drinks the saliva from the lips of a sudra woman and who begets himself in her” ( III-19) [AP1]
These are some of the many prescriptions about the status and the social character of a woman in society. In BR. Ambedkar’s era many social activists, Dalit activists who were fuelled by the Ambedkar’s call to ban the Manusmriti disregard this text and solely called of this type of moral codes as animalistic in nature which does nothing but deeply vilified the character of a woman and taints as her a mere subordinate to her husband or father and by crushing her individuality and personal identity to the core level muting her voice and freedom to express in both her household and in society. These types of moral codes are very primitive in nature which solely inculcate that a woman has nothing to offer except assistance and arouses her husband in her entire life.
Many years before Manusmriti Dahan, society by following these rules made women incapable of becoming self-reliant forever. It never considered a woman more than a shoe.
Manusmriti in recent controversy
In August, 2022 Delhi High court judge Justice Prathiba Singh in spite of a case hearing said that Indian women are blessed because scriptures like Manusmriti give them respectable status in society. After that statement got viral in the public, many communist party leaders and Women rights activists voiced their concern over those remarks and many civilians of the society expressed their disbelief on social media. Women activist Kavita Krishnan voiced out her concern by saying that ‘ it is very downright scary that the rights of women and implication of their rights of women and children are the mercy of Judges like those who still believes that societal position of a woman is still based upon the primitive moral texts like these which were of the early man time’.
In June 2023, from a Delhi court acquitting 3 Muslim men in a case related to the Northeast Delhi riots, the Gujarat High Court judge Justice Samir Dave quoted that in early times it was
very normal for woman to get married at the age of 14-15 and they give birth to children before they even turn 17 of their age and the age customs are clearly mentioned in the scriptures of Manusmriti.
The Bench stated that “ Because we are living in the 21st century, ask your mother or great-grandmother, 14-15 was the maximum age for getting married. The child used to take birth before the attainment of age 17. Girls mature before boys. 4-5 months here and there doesn’t make a huge difference. You will not read it. These are all mentioned in Manusmriti and do read it once for reference.
Many people expressed their disbelief over these remarks and sated over on social media handles that India being one of the fastest growing economies in the world is still having a theocratic judges who keep quoting ancient laws and primitive text like these for that trial of a abortion of foetus of a rape survivor is still conerning in sense.
Many women activists after these remarks expressed their concern over press and print media that ‘ Today to convict a rapist and to decide the life of foetus of the rape survivor the Judiciary body is sourcing the animalistic law code which is long ago burned down by Ambedkar on large front quoting that this code of natural law is archaic and chauvinist in sense.
Though the bench allowed the abortion of the fetus and convicted the offenders, still public on various social media handles expressed their concern over the lookup for the source of legality, hence back to age-old moral texts like Mnausmriti is still grieving in sense. Many people on twitter handles stated that if the law bodies still quoting sources for their verdict in the primitive and anarchist books like Manusmriti indirectly tells us about the rational thinking of the authorities and their mindset about the status and moral policing of the women in society.
Today people believe that Constitutional morality is way more makes a man progressive than the existing social morality. Social morality is widely followed because it is way more older than latter. It provides a defined set of ethical framework for eva;uating people’s actions. Social morality provides guidelines for society to live in peace. Social morality comprises norms and values which are full of ethical value which mainly lacks legal value in the eyes of the governing body. This concept states that Society needs some form of organization so it’s compulsory to exist as a governing body.
But people believe in the legality of constitutional morality in these times of modernization. It is an open-wide fact that the Constitution of India is the supreme law of the land. In India the Constitution is widely foreseen as the vital document that directs our Indian Judiciary in
adjudicating various legal issues. People of the country believe that it is a dynamic legal code which never becomes obsolete with the growing needs and situations of our Indian society.
The various lively principles such as equality, liberty, fraternity and justice serves as an ethical root for all the various branches of the government. According to Historian George Grote, constitutional morality is regarded as the paramount reference for the forms of the Constitution of the land or country.
Here the laws prescribed by the Manusmriti are sourced as the base of social morality which were followed by people for a long time. The Modern laws and the Constitution of India are regarded as Constitutional morality in a wider sense.
Manusmriti on Homosexuality
These laws about the third gender people are very brutal and mostly inhuman in a way. These texts literally dehumanise gender fluid people and crushes their [AP2] character in society. It doesn’t gave any mere human value as per the legality to those people.
Modern Indian laws for Homosexuality
After the Judgement of Navtej Singh Johar vs Union of India or famously known as the ‘ the 377 Judgment’ the rights of LGBTQ community showed uprise in the social spectrum. Some of the rights conferred by the Government are as follows :
> Article 15 of the Constitution of India states about the prohibition of discrimination on the basis of religion, race, caste, sex, or birth place.
> The 2016 UGC rule states on suppression on the evil menace of ragging in Higher Education Institutions which directly prohibits bullying, raging, and discrimination against students based on their gender orientation or gender identity.
> In the state of Karnataka, The 2017 National Transgender Policy was issued by the Government of Karnataka in October 2017 and aims to promote inclusive awareness about the trans people in all schools and colleges. An institutional committee was also set up to investigate allegations of physical abuse and discrimination.
> In the state of Maharashtra, The Transgender welfare Board was established by the Government of state in February 2019 to implement every possible social inclusive help and aid to the community. This includes health facilities, employment, scholarship, skills growth, 1monthly allowance for livelihood.
> In the state of Kerala, the Transgender welfare policies were introduced primarily at the initial stage. These policies include free housing, citizenship allocation, admissions, scholarships, alternative income sources, monthly pensions, self-help groups, free medical facilities in hospitals,etc and so on. [AP3]
But today the times have changed. People have begun to change and so does their mindset and way of thinking. Today people belonging to the third gender community have started to make their mark all over the different stratas of the society.
The government also has made various special provisions and legislations for their inclusive development on a whole level. People from their community also started to acquire respectable positions in the different sectors of the public service bodies.
1 Navtej Singh Johar vs Union of India 2018
2. The Constitution of India
3. The UGC Regulations 2016[AP4]
Today laws of the modern independent India do not find any relevance to the laws prescribed in the texts of Manusmriti especially about the marginalised communities of the society and their existence and their social diversification in the societal structure. The law makers also stopped to follow the ancient texts like these
Apparently, the Manusmriti is not used to trial anyone today as it is replaced by the constitution and our judiciary system. Those who quote this text or consider this text as a source of law might have not read the Smriti fully. Among many things mentioned, The Manusmriti loosely mentions the code of conduct for the behavioural pattern of the women in both house and society. Manusmriti had lapsed into oblivion centuries ago until rather “ they “ were resurrected and revived by the British for the implementation of colonial laws.
Suggestions & Conclusion
In these days of modernization people no longer believe in the primitive texts which are sourced back to centuries ago. Times have changed, so do the people. These days any judicial trial or conflict does not confine to the walls of the court only. The ancient sources like Manusmriti and other Dharmashastra literatures have been racked down in the shallow shelves of libraries centuries ago. The laws of the society and the cultural norms are loosely based on the explanation of Karma. These laws are always subjected to change and will continue to adopt change. Mostly in our society the minor social usages which were accepted and being put into practice will be recognised largely when they are compatible with the scriptures and code of conduct which are prescribed by the holy sages. The law makers should not bind themselves into looking for the source strength into primitive and fossilised texts like Manusmriti which are deeply dwelled into the times of old age and become rust packed over the surface and have turned into obsolete offer nothing but the ideal of discrimination.
AUTHOR
PVSS. SRINIVAS
Dr. BR. Ambedkar College of Law, Andhra University
Vishakapatnam
[AP1]Kindly cite the source
[AP2]Kindly cite the source please
[AP3]Kindly cite the source
[AP4]Put it in footnote