Opinion My Lord, the Manusmiriti has no place in India’s courts

The Gujarat High Court is my parent high court, and I write this article with grief. When a judge of the high court takes office, he swears an oath to bear true faith and allegiance to the Constitution of India. It becomes important to stress the fact that the “true faith and allegiance” is to the Constitution, and not a religion that a judge may practice. As majoritarianism grips this country, the judiciary remains the last bastion for the protection of fundamental rights. A judge must put fundamental rights and constitutional morality over religious morality. Utterances such as the one from Justice Dave fuel the perception that the judiciary is becoming increasingly theocratic. Pointing to the dangers of such jurisprudence, Mohan Gopal argues that Hindu Rashtra will be achieved by 2047 if we increasingly have more judges who seek to find law not in the statutes and the Constitution, but in religion.

Let us be clear — the ideals of the Manusmriti are antithetical to the ideals of the Constitution. The Manusmriti, as a text, cannot be used to interpret rights, and more importantly, women’s rights. Consider verse 9(3) of the Manusmriti, which when translated into English says about a woman, “The father guards her during virginity, the husband guards her in youth, the sons guard her in old age; the woman is never fit for independence.” At the same time, the constitutional interpretation of the rights of the woman accords her equal status as to that of a man, and capable of making her own decision. In Suchitra Srivastava v. Chandigarh Administration, also dealing with medical termination of pregnancy by a minor, the Supreme Court held: “The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods.”

It is clear that the constitutional ideal is not in line with the ideals of the Manusmriti. It is also clear that the constitutional ideal must trump the religious ideal.

The Constitution of India, and its constitution of India into a secular democracy, creates a dichotomy in the way rights are construed in the Manusmriti. In the Manusmriti, multiple sections of the society — namely, women, Dalit, Bahujan and Adivasi persons and other groups — were reduced to second-class citizens. In India, there was a break from this, and all citizens were constitutionally guaranteed equality of status notwithstanding their religion, race, caste, sex, descent, place of birth, and residence. In other words, when “We, the people”, gave unto ourselves the Constitution, we made a conscious choice, to turn to the ideals of liberty, equality and the annihilation of caste. In so doing, we rejected the caste system, subjugation of women and other ideals of the Manusmriti.

Chief Justice D Y Chandrachud, while writing his opinion in the Sabarimala case, articulated this powerfully: “Reading Dr Ambedkar compels us to look at the other side of independence. Besides the struggle for independence from British rule, there was another struggle going on since centuries and which still continues. That struggle has been for social emancipation. It has been the struggle for the replacement of an unequal social order, It has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights. The Constitution of India is the end product of both these struggles”.

The Constitution is a feminist document, and as a corollary, judges are required to keep feminist principles in mind while interpreting the Constitution. Yes, women were being married off and forced to become mothers and that continues to happen. But that was before the Constitution, POCSO, and the Prohibition of Child Marriage Act, 2006. Today, such acts are criminal offences. Dr Ambedkar burnt the Manusmriti on December 25, 1927, and the day is celebrated as both, Manusmriti Dahan Din and Stree Mukti Din. To refer to the Manusmriti as a source of rights of women is an affront to the Constitution. Let me end this with what Kavita Krishnan wrote in The Indian Express, “One cannot be a feminist in India if you are not fighting the Manusmriti — and one cannot fight the Manusmriti without being robustly feminist, and asserting women’s unconditional autonomy.”

The writer is a lawyer practising at the Supreme Court of India and a bioethicist