“The bonfire of Manusmriti was quite intentional. We made a bonfire of it because we view it as a symbol of injustice under which we have been crushed across centuries.”
– Dr. B. R. Ambedkar, Writings and Speeches of Dr. Ambedkar, Volume 17.
A recent piece by author, environmentalist and educationist Dr. Nanditha Krishna for the Open Magazine titled ‘The Constitution of India is Today’s Manusmriti’ took the internet by storm when it was tweeted by Parliamentarian, writer and public intellectual Dr. Shashi Tharoor.
Apart from the obvious fact that the piece is riddled with fiddle-faddle, it becomes important to deal with the issues in the piece and juxtapose them against the tall and unsubstantiated claims around ‘Indic jurisprudence’, ‘Indianising the judicial system’ and other like terms. The fact is, as Dr. Ambedkar himself said, “Indians today are governed by two different ideologies. Their political ideal set out in the preamble of the Constitution affirms a life of liberty, equality and fraternity. Their social ideal embodied in their religion denies them.” To conflate the two would be gravely erroneous.
Rubbishing the riff-raff in Dr. Ambedkar’s own words
The piece by Dr. Krishna, who is a Professor and Research Guide for the Ph.D. programme of the C.P. Ramaswami Aiyar Institute of Indological Research, affiliated to the University of Madras, is written in a caste-blind way. All of its central hypotheses are false, flawed and not supported by authority to back the claims made. Let me deal with them one by one
Constitution is a smriti
Indeed, the first question — that lies at the centre of the piece is — is the Constitution a ‘smriti’? By the author’s own admission, “Smriti literature elaborates, interprets, and codifies Vedic thought but, being derivative, is not authoritative, unlike the Vedas… Smriti is a derived secondary work and is considered less authoritative than any shruti in Hinduism.” Though the present disposition likes to believe that the Constitution is subservient to the will of the people, the law is clear. The Constitution is the grundnorm; the foundation of all laws in India, and it reigns supreme. Any law that falls foul of the Constitution deserves to be struck down.
There is, fundamentally speaking, a difference between a smriti and the Constitution. Speaking at the Mahad Satyagraha, Dr. Ambedkar said, “And what are the rights of the ‘Shudras’? The ‘Smrities’ (sic) treat them as mere zealots and the ‘Smrities’ are the guides of the caste Hindus in the matter of gradations in the caste system. Are you willing to be treated as ‘Shudras’? Are you willing to accept the position of zealots? Are you prepared to leave your fate in the hands of the upper class?” The Constitution, on the other hand, treats people of all classes, castes, gender and sexuality equally.
Additionally, the Constitution itself was created in a manner that uprooted the hold of the smritis on the social mores of India. Dr. Ambedkar said, “I do not think it possible to abolish inequality in the Hindu Society unless the existing foundation of the ‘Smriti’ religion is removed and a better one laid in its place. I, however, despair of the Hindu Society being able to reconstruct on such a better foundation.”
We must understand that the Constitution is a radical and transformative document. At its heart lie the values of liberty, justice, equality and fraternity. The same cannot be said of the Manusmriti.
The laws that matter are Articles 15, 17 and 340
The article talked about the importance of Articles 15, 17 and 340 of the Constitution. While these articles are undoubtedly important, it left out two important legal provisions: Article 16, which provides for equality of opportunity and provides for reservations in public employment, and the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.
For the author, it seems that mere declaration of equality will be sufficient without actually doing anything to annihilate caste.
We live in a casteless India
Assuming, in arguendo, that we live in a post-caste India, how does one explain that National Crime Records Bureau data found a 45 per cent increase in reported rapes of Dalit women between 2015 and 2020? The data said 10 rapes of Dalit women and girls were reported every day in India on an average. How does one explain Hathras, Lakhimpur Kheri, and so many incidents that may have escaped the news cycles and not made it to the front pages of the newspapers? The intention of the perpetrators in many of these rapes in not just to commit violence against women, but also to keep the so-called lower castes in their place. This argument is borne out by the circumstantial evidence in these cases and sometimes from the confession of the perpetrators.
A true society is not one that is casteless, but one that acknowledges the historic wrongs which continue to this day and provide effective reparations and redress. A perusal of the full, unedited text of Dr. Ambedkar’s Annihilation of Caste will tell us that the only way to annihilate caste, as per Dr. Ambedkar, is through inter-caste marriages.
“I am convinced that the real remedy is inter-marriage. Fusion of blood can alone create the feeling of being kith and kin and unless this feeling of kinship, of being kindred, becomes paramount the separatist feeling—the feeling of being aliens—created by Caste will not vanish. Among the Hindus inter-marriage must necessarily be a factor of greater force in social life than it need be in the life of the non-Hindus. Where society is already well-knit by other ties, marriage is an ordinary incident of life. But where society cut asunder, marriage as a binding force becomes a matter of urgent necessity.”
Politicians should not talk about caste
India’s politics is defined by vote banks based on caste and religion. Caste in politics is all-pervasive and pernicious. We can only stop talking about caste when members of upper castes, including me, stop benefiting from it. Politicians talking about caste becomes more important when one notices that the representation of upper caste candidates in the Parliament shows an upward trend.
Dr. Ambedkar as Manu
This claim is so absurd that it does not deserve any response other than what Babasaheb himself said, “I am not a Modern Manu”. Irony dies a thousand deaths when Ambedkar is described as Manu, to say the least. To compare Dr. Ambedkar to Manu is an unconscionable vulgarisation of the great man’s legacy, who devoted his life to anti-caste work and was perhaps the most important founding father of the republic.
Battle between the Constitution and Manusmriti raging presently
Prima facie, it might seem ill-thought and perhaps childish to write a response to an article like the one in question. However, dismissing it as mere bluster would be foolish.
This article follows a long trend of right-leaning-lawyers, and sitting and retired judges calling for ‘Indic’ jurisprudence or the ‘Indianisation of the legal system’. To cite a few recent examples: Speaking at the Akhil Bharatiya Adhivaktha Parishad’s National Conference, Justice G.R. Swaminathan of the Madras High Court said that Article 72 of the Constitution and Section 432 of the Code of Criminal Procedure both have a basis in Valmiki’s Ramayana. Similarly, retired Supreme Court judge Justice S.A. Nazeer had, in December 2021, called for the Indianisation of the legal system. The Vice President has publicly criticised the basic structure doctrine, which places the equality code, secularism, and other important safeguards at the heart of the Constitution.
An article like Dr. Krishna’s is a part of a well-coordinated attack on the Constitution and its framers to discredit them. The Constitution and the Manusmriti are as different as chalk and cheese, and nothing could conflate the two. The Manusmriti sought to entrench the caste system; the Constitution abolishes untouchability. The Manusmiriti laid down the tenets of a good woman as being submissive to her husband while the Constitution treats her as an equal. As women’s rights activist 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.”
As an aspirational charter of rights, the Constitution is a radical experiment in abolishing caste, and creating truly equal citizenship. All of the ideas which are central to a liberal democracy are alien to Manusmriti. The principles between the two are incommensurable, and one cannot live while the other survives.
Today, the fight is between Manu and Dr. Ambedkar, and Dr. Ambedkar will win for sure. Retired Supreme Court judge, the late Justice P.B. Sawant wrote in The Wire, “Our country is large. It is multi-caste, multi-racial, multi-religious, multi-lingual and multi-cultural. Our constitution has set before us a vision which is humanist, universal, rational and scientific. It aims to unite, and not divide. It seeks to empower all men and women. It desires to provide equal rights and opportunities. The inherently inhuman, iniquitous and unjust ancient texts like Manusmriti are an anathema to the aims and objectives of our constitution. Dr. Ambedkar burnt the Manusmriti in 1927, would we have the courage to rise up against it today?”
Will we have the courage to rise up against the Manusmriti today? That is the question I leave you with to answer for yourself.
(Rohin Bhatt is a queer lawyer and a queer rights activist from India. He is currently working at the Chambers of Ms. Indira Jaising, Sr. Advocate. He finished his Master of Bioethics degree at Harvard Medical School. Courtesy: The Leaflet, an independent platform for cutting-edge, progressive, legal & political opinion.)
