• Cultural Nationalism

• Women’s Lives as an embodiment of tradition

• Private/Public dichotomy
• Agency
• Three Perspectives on the Debate

Module 4: Gender and Law, 1829-1930s

Before the formal rise of nationalism, throughout the nineteenth century, Indian reformers turned to
the law as an important means of modernizing Indian society. Rammohan Roy pushed for a legal ban
on sati in the 1820s. Ishwar Chandra Vidyasagar championed a law allowing Hindu widows to legally
remarry. Behramji Malabari campaigned against child marriage and supported Rukmabai in her case
against a man to whom she had been married as a child. In addition, the British early on declared their
intention of upholding the personal law of different religious communities in matters pertaining to
property and family law. Several big questions emerge: how is gender an important lens through
which to study colonial law? How were processes of law making and the legal subjects they brought
into being gendered? How did the gendered assumptions of law makers influence the development
and implementation of personal law in India? How did the law emerge as a battle ground between the
British and conservative and liberal Indians in matters pertaining to ‘culture’, ‘custom’, ‘tradition’,
‘nation’ as represented by women? What is the interplay of caste, class and gender in colonial law?
And finally, what possibilities did the law and discussions around the law hold out for radically
challenging the gendered inequities of Indian society?

Contentious Traditions: The Debate on Sati in Colonial India


Lata Mani
She claims that the discourse on Sati is colonial, the equation of scripture, law and
tradition, and the representation of women as tradition produced a' specific matrix of
constraints within which the question of sati was debated. This grid was fashioned out of
the requirements of an expanding colonial power in need of systematic and unambiguous
modes of governance, of law, for instance, and out of a particular view of Indian society.
Introduction
The legislative prohibition of sati was the culmination of a debate during which 8,134
instances of sati had been recorded, mainly, though not exclusively, among upper caste
Hindus, with a high concentration — 63 per cent — in the area around Calcutta city. The
debate, initiated primarily by colonial officials, is regarded as signifying the concern for
the status of women that emerges in the nineteenth century. Was it really concern for the
status of women? Parallel with legal history, did they also have laws that were regressive
towards women?
In other words, even the most anti-imperialist amongst us has felt forced to acknowledge
the ‘positive’ consequences of colonial rule for certain aspects of women’s lives, if not in
terms of actual practice, at least at the level of ideas about ‘women’s rights’.
Among such reinterpreters of Indian tradition, Rammohun Roy holds a privileged place as
the first nineteenth century Indian figure to publicly undertake such a critical examination
of Indian heritage, both in his stand against sati and also more generally in his attempts to
reformulate Hinduism. Sarkar believes that Rammohun's modernity is contradictor)’ and as
such reflects the objective conditions of colonial subjugation which, in his view, produces
not a “full-blooded bourgeois modernity” but only a “weak and distorted caricature” of
the same. In other words Sarkar sees colonialism as a partial modernizing force and warns
against the simplistic application of narratives of progressive modernization to a study of
nineteenth century India. This is an important intervention in the debates on
modernization. However, it leaves unproblematized the content of the concepts ‘tradition'
and ‘modernity.’
About the Paper
For, as I will show through analysis of the debate on sati, the conception of tradition that
Rammohun contests, and the orthodoxy defends, is one that is specifically ‘colonial’. I will
examine official and indigenous discourses on sati focussing on three documents selected
out of a larger field of texts as exemplary registers of these discourses. Walter Ewer’s
letter to the Judicial Department written in November 1818 will represent the official
position. Rammohun Roy’s 1830 tract in favour of the abolition of sati and the orthodox
community’s petition protesting the regulation will serve as examples of the ‘progressive’
and ‘conservative’ indigenous positions respectively.
I will also examine the constitution of official knowledge about sati. Official knowledge
was generated through questioning pundits resident at the courts. Analysing them clarifies
how the very formulation of official questions shapes the responses of pundits and how the
answers of pundits are interpreted in specific ways by officials. Such moments thus
provide the grounds both for naming the discourse as ‘colonial’ and for questioning its
premises.
Arguments
First, that tradition is reconstituted under colonial rule and women become emblematic of
tradition, and the reworking of tradition is largely conducted through debating the rights
and status of-women in society. Despite this intimate connection between women and
tradition, or perhaps because of it, these debates are in some sense not primarily about
women but about what constitutes authentic cultural tradition. Brahmanic scriptures are
increasingly seen to be the locus of this authenticity so that, for example, the legislative
prohibition of sati becomes a question of scriptural interpretation. Contrary to the popular
notion that the British were compelled to outlaw sati because of its barbarity, the horror
of the burning of women is, as we shall see, a distinctly minor theme.
Second, this privileging of brahmanic scripture and the equation of tradition with scripture
is, I suggest, an effect of a ‘colonial discourse’ on India. By colonial discourse I mean a
mode of understanding Indian society that emerged alongside colonial rule and over time
was shared to a greater or lesser extent by officials, missionaries and the indigenous elite.
The selected officials for interpretation could say That brahmanic and Islamic scriptures
were prescriptive texts containing rules of social behaviour, even when the evidence for
this assertion was problematic. they could institutionalize their assumptions as Warren
Hastings did in 1772, by making these texts the basis of personal law.
Sumit Sarkar has discussed how Rammohun Roy moves from arguments based on reason in
Tuhfat to arguments that are increasingly reliant on brahmanic scripture. suggest that this
trajectory of Rammohun might be understood as mapping the discursive shift that
accompanies colonial rule. In other words, Rammohun’s appeal to the scriptures in his
later work might have more to do with the colonial insistence on the centrality of
scripture to Indian society than on the ‘feudal’ or ‘semi-feudal’ character of early
nineteenth century Bengal.
Walter Ewer: An Instance of Official Discourse
Official discourse on sati was prompted by deliberation on whether it could be safely
prohibited through legislation. The concern with safety was premised on the belief that
the practice had a basis in scripture and that interference in a religious matter might
provoke indigenous outrage. Those opposed to abolition thus emphasized its ‘religious’
basis and the dangers of intervention, while those in favour of outlawing sati stressed its
‘material’ aspects (such as the family’s desire to be rid of the financial burden of
supporting the widow), and thus the safety of legislative prohibition.
Stated briefly, I argued that officials advanced their positions from within a common
discourse on India whose chief features were the centrality of brahmanic scriptures,
unreflective indigenous obedience to these texts and the religious nature of sati. Even
though they were in opposing positions they were united in their analysis of Indian society
and sati.
Walter Ewer, Superintendent of Police in the Lower Provinces, an abolitionist who
epitomises the official discourse on sati. Ewer proposed that the contemporary practice of
sati bore little resemblance to its scriptural model, which he defined as a voluntary act of
devotion carried out for the spiritual benefit of the widow and the deceased. In reality, he
argued, widows were coerced and sati was performed for the material gain of surviving
relatives. Ewer suggested that relatives might save the expense of maintaining the widow
and the irritation of her legal right over the family estate. Also said to apply pressure on
the widow by extolling the virtues and rewards of sati were ‘hungry brahmins’ greedy for
the money due to them for officiating at such occasions. If the pundits and relatives
spared them, the crowds wouldn’t. Ewer concluded that women were not free agrnts in
the performance of Sati.
Ewer goes on to question the assumption of a scriptural sanction for sati. He points to the
heterogeneity of the scriptures on the issue, demonstrating that Manu, “the parent of
Hindoo jurisprudence,” did not even mention sati, but instead glorified ascetic
widowhood. It is important to note that what unites both the ‘temporal’ and ‘scriptural’
aspects of Ewer’s arguments is the privileging of religion and the assumption of a complete
native submission to its force.
The accent on ‘will’ in Ewer’s analysis signals the ambivalence which lies at the heart of
the official attitude to sati, It suggests that within the general and avowed disapproval of
the practice, there operated notions of ‘good’ and ‘bad’ satis. Good satis were those that
were seen to be true to an official reading of the scriptures. It was this kind of reasoning
that produced the 1813 regulation which defined sati as legal providing it met certain
criteria, chief among which was that it be a voluntary act.15 The Nizamat Adalat or
criminal court accordingly instructed magistrates to pay close attention to the demeanour
of the widow as she approached the pyre so that officials could intercept at the merest
suggestion of coercion. As a result magistrates recorded in the annual returns on sati such
remarks as the following: “the widow voluntarily sacrificed herself,” “ascended the pyre
of her own free will,” burnt “without (sic) in any way inebriated and in conformity with
the Shaster.”
Official approval of sati as long as it was an act of free will was also reflected in a non-
horrified announcement of two satis in the Calcutta Gazette in 1827, described the widow
as “having abandoned with cheerfulness and her own free will, this perishable frame,”
and as “having burnt herself with him in their presence with a swelling heart and a smiling
countenance.” Ewer, offered here as the paradigmatic example, insisted that in actuality
widows were incapable of consenting and must therefore be protected from pundits and
crowds alike.
It is also clear that officials in favour of legislative prohibition were not, as it has
generally been conceived, interventionists contemptuous of aspects of indigenous culture,
advocating change in the name of ‘progress’ or Christian principles. On the contrary,
officials in favour of abolition were arguing that such action was in fact consistent with
upholding indigenous tradition, even that a policy of religious tolerance necessitated
intervention. And indeed this was how the regenerating mission of colonization was
conceptualized: not as the imposition of a new Christian moral order but as the
recuperation and enforcement of the truths of indigenous tradition.
Official conception of colonial subjects held the majority to be ignorant of their ‘religion.’
Religion was equated with scripture. Knowledge of the scriptures was held to be the
monopoly of Brahmin pundits. Their knowledge was, however, believed to be corrupt and
self-serving. The civilizing mission of colonization was thus seen to lie in protecting the
‘weak’ against the ‘artful’, in giving back to the natives the truths of their own “little
read and less understood Shaster.
In employing the scriptures to support their views, the officials were dependent on the
vyawasthas of court pundits whose exegesis of the texts made them accessible to colonial
officials. Official discourse on sati rested on three interlocking assumptions': the
hegemony of religious texts, a total indigenous submission to their dictates, and the
religious basis of sati. To begin with, I suggest that the insistence on textual hegemony is
challenged by the enormous regional variation in the mode of committing sati.
The regulation of 1813 had recognized that in some districts sati had almost entirely
ceased, while in others it was confined almost exclusively to certain castes. Despite this,
officials decided to continue tolerating it, since they believed that in most provinces “all
castes of Hindoos would be extremely tenacious of its continuance,” Whatever the
justification for concluding thus in 1813, such insistence was hardly tenable once
systematic data collection was begun in 1815. For it quickly became apparent that 66 per
cent of satis were carried out between the area surrounding Calcutta city and the
Shahabad, Ghazipur and Sarun districts. This indicates that religion was not hegemonic.
Officials however continued to make this assumption, interpreting such regional variation
to imply that although ‘material’ factors might be at play, sati was primarily a religious
practice.
What is surprising, though, is that officials persisted in describing as victims, even women
who resisted attempts to force them onto the pyre. Given the absence of women’s voices
and the historical and cultural variability of such terms as agency and subjecthood, it
seems to me that the volition of some widows can justifiably be seen as equal to the
resistance of others Superslave or superhuman, women in this discourse remain eternal
[Link] representations further reinforced such a view of the widow, as helpless
by ‘infantilizing’ the typical sati. The widow is quite often described as a ‘tender child.’
Even though statistics showed different. In 1818, for example, 64 per cent of satis were
above 40 years of age.
My interest in the representation of women is in the ways official discourse forecloses any
possibility of women’s agency, thus providing justification for ‘civilizing’ colonial
interventions.
Production of official knowledge on sati: interaction and interrogation
Information about sati was generated at the instance, or rather insistence, of colonial
officials posing questions to pundits resident at the courts. The question posed to the
pundit was whether sati was enjoined by the scriptural texts. The pundit responded that
the texts did not enjoin but merely permitted sati in certain instances, drawing on quotes
which spoke of the rewards sati would bring to widows and their husbands. While officials
treated vyawasthas as truthful exegeses of the scriptures in an absolute sense, it is clear
from reading the vyawasthas that the pundits issuing them believed them to be
interpretive. The scriptures were an enormous body of texts composed at different times.
They included the Srutis, the Dharmashastras or Smritis and the commentaries.
Official insistence on clarity was crucial to enabling the constitution of ‘legal’ and ‘illegal’
satis. Through such continual and intensive questioning, criteria for an officially
sanctioned sati were generated. Sati had to be voluntary. Brahmin women were permitted
only sahamaran a, burning with the husband’s corpse. Nonbrahmin women could burn
through sahamarana or an oomaran a (burning with an article belonging to the husband).
Sati was forbidden to women under sixteen and to women with infants less than three
years. Women of the jogi tribe were permitted to bury themselves. Such continual
reinscription of sati into a scriptural tradition despite evidence to the contrary points to
the specificity of meanings imposed by official reading of the vyawasthas, and to the
production of a conception of sati that is specifically ‘colonial’.
In addition, whatever the official claims to religious noninterference, the process by which
knowledge of sati was produced was specifically ‘colonial’ and its vigilant enforcement
thoroughly interventionist. As the examples above indicate, despite the involvement of
Brahmin pundits, the privilege of the final authoritative interpretation of their vyawasthas
was appropriated by colonial officials. For it was the Nizamat Adalat judges, the Governor-
General and his Council who determined which vyawasthas were ‘essential’ and which
‘peripheral.’ The authority of the pundits was problematic. The fact of being native
simultaneously privileged and devalued them as reliable sources. The pundits were
essential to ‘unlocking’ the scriptures for officials.
Indigenous Progressive Discourse on Sati
By the time Rammohun Roy’s first pamphlet on sati was published in 1818 the main
features of official discourse on sati had already taken shape. Rammohun produces proof
from the Manu and Yajnavalkya of the widow’s right to live with her natal or marital family
on the death of her [Link] draws on the Vedas whose authority, he claims, is
paramount: “From a desire during life, of future fruition, life ought not to be destroyed.”
This, most “pointed and decisive” statement, counters in his view the claims of advocates
of sati who also refer to the Vedas, but to a passage that Rammohun finds abstract and
open to multiple interpretations. He finds the use of fire and other relevant phrases
allegorical. Rammohun then considers the Smritis which he designates as “next in
authority to the Vedas.” Rammohun notes a passage from Ungira exalting a widow who
commits sati as equal to Arundhati, but dismisses its recommendation of sati as inferior
since it is avowedly a “means to obtain future carnal fruition” and as such occupies a
lower rung in the spiritual hierarchy of acts.
Rammohun points out that “these expounders of law” require the widow to voluntarily
ascend the pyre and enter the flames. Rammohun, like colonial officials, is here
concerned with the thorny question of the widow’s will. His view is similar to that of Ewer.
He claims “no widow ever voluntarily ascended on and entered into the flames in the
fulfilment of this rite.” No wonder, he says, that those in favour of sati have been “driven
to the necessity of taking refuge in usage, as justifying both suicide and female murder,
the most heinous of crimes.” In January 1830, Rammohun joined together with 300
Calcutta residents in presenting a petition to Governor- General William Bentinck in
support of the regulation prohibiting sati that had been enacted on December 4, 1829.50
The petition offers further evidence that sati is not legitimized by scripture. Rammohun
and the petitioners argue that sati originated in the jealousy of certain Hindu princes who,
to ensure the faithfulness of their widows, “availed themselves of their arbitrary power,
and under the cloak of religion, introduced the practice of burning widows alive.
Elsewhere in his writings, Rammohun gives further evidence for regarding sati as a
material practice, relating its greater incidence in Bengal to women’s property rights
under Dayabhaga law.
Sati functions both as the act confirming the stoicism of women and as the practice that
epitomises their weakness. I suggest that, even for the staunchest abolitionist, the idea of
sati continues to provoke ambivalence. This ambivalence is enabled by the construction of
woman as either supreme being or victim.
The conservative discourse on Sati: the orthodox petition to Bentick
Whatever ambivalence may have marked ‘liberal’ discourses on sati is strikingly absent
from the conservative writings on the subject, which openly eulogize the practice as one
willingly undertaken by devout Hindu widows. The burden of the orthodox argument was
to demonstrate that the East India Company’s criminalizing of sati was based on an
erroneous reading of the scriptures. The orthodox argument did, however, differ in one
respect from that of Rammohun and most colonial officials; it assigned a relatively greater
weight to custom over scripture.
The orthodox strategy was to undermine the credibility of scriptural interpreters held in
esteem by the colonial administration, among them Rammohun, as well as the validity of
their interpretations regarding the textual basis for the prohibition of sati. The petition
charged the government with deriving their interpretations from apostates. The petition
was accompanied by a “paper of authorities” signed by 120 pundits presenting scriptural
evidence in favour of sati or, in the words of the petition, “the legal points declaring the
practice of suttee lawful and expedient.”
The greater ‘spiritual’ value of ascetic widowhood is contrasted negatively with what
petitioners see as the greater and prolonged material suffering it implies for widows. A
printing mistake is thus made accountable for the status of sati in Manu’s text in Bengal!
Where Rammohun prioritises Manu Smriti as a founding text containing “the whole sense
of the Veda” and insists that no code be approved which contradicted it, the orthodox
petition argued the absolute priority of Sruti in every case, although within the Smritis,
Manu Smriti is conceded a premier position.
A common discourse on Sati
Advocates both for and against sati grounded their case in a discussion of brahmanic
scriptures, with opponents endeavouring to prove that sati had no clear scriptural status
and proponents contesting these conclusions. Even Rammohun, commonly regarded as the
first modem champion of women’s rights, did not base his support for abolition on the
grounds that sati was cruel to women. He did of course develop critical analyses of the
status of women in India of a more ‘secular’ variety, but these are marginal to his
arguments against sati. Thus, the anti-sati petition describes the Sruti as “the most
prevalent authority, and original of all the Smritis.”
To recapitulate, whatever their stands on the prohibition of sati, colonial officials and the
indigenous male elite agreed that scripture overrode custom, that explicit scriptural
evidence had greater weight than evidence based on inference and that, in general, the
older the text the greater its value. This privileging of the more ancient texts was tied to
another discursive feature: the belief that Hindu society had fallen from a prior Golden
Age. Ideology of abolition conceived the prohibition of sati as a restorative act that
returned to natives the ‘truths’ of their own tradition.
Bentinck goes on to note that, by practicing ascetic widowhood, widows could be true
both to the laws of government and to “the purest precepts of religion.” Further,
according to Bentinck, the widows would provide “an example to the existing generation
of that good conduct which is supposed to have distinguished the earlier and better times
of the Hindoo people.”
I am drawing here on the excellent work of Sumit Sarkar who has argued that the Bengal
Renaissance should be regarded “not as a ‘torch’ race . . . but as a story of retreat and
decline.” From my perspective, what is significant is that the shift in Rammohun’s rhetoric
parallels his increasing involvement with colonial presence.
In other words, the move from a trenchant critique of religion to a strategy which argued
for social reform in terms of the scriptural was related to the emerging dominance of an
official western discourse on India, a discourse of moral superiority that acknowledged
India’s greatness but only in terms of her scriptural past.
Kosambi is sharply critical of the British, ‘brahmanising tendency’ which ignored the laws
enforced by caste sabhas (associations) and focussed exclusively on brahmanic texts for
the formulation of ‘Hindu’ law. Pundits qualified their responses as opinions, their
readings as interpretive. The Asiatic Journal, in reporting the submission of this petition to
William Bentinck, remarks that it is “accom panied by legal documents (emphasis mine)
Here the equation between scripture and law is complete.
Equally significant in its ideological consequences for women was the equation of tradition
with scripture. Instead women become sites upon which various versions of scripture/
tradition/Iaw are elaborated and contested. It was not a secular discourse of reason
positing a morality critical of ‘outmoded’ practice and a new conception of ‘individual
rights.’ The discussion of the rights of women as individuals is also absent except insofar
as it is posed indirectly in the context of the widow’s will.
But the discourse on sati was also modern in another more important sense: it was a
modem discourse on tradition. It exemplifies late eighteenth century colonial discourses
that elaborated notions of modernity against their own conceptions of tradition. here-are
two consequences to this concept of culture or tradition as a transhistorical and
ubiquitous force acted out by people. Firstly, it produces analyses of sati in purely
‘cultural’ terms that empty it of both history and politics. Secondly, this notion of culture
effectively erases the agency of those involved in such practices.

Ewer’s account of women were forced into it by men and pundits shows that a man’s will
to was involved. These poles, ‘heroine’ and ‘victim’ preclude the possibility of a complex
female subjectivity.
Not only is precious little heard from them, but as I have suggested above, they are
denied any agency. This does not, however, imply that women are the objects of this
discourse; that this discourse is about them. On the contrary, I would argue that women
are neither subjects nor objects, but rather the ground of the discourse on sati. Indeed, as
the nineteenth century progresses, at a. symbolic level, the fate of women and the fate of
the emerging nation become inextricably intertwined. Debates on women, whether in
context of sati, widow remarriage or zenanc^ (seclusion of women), were not merely
about women, but also instances in which the moral challenge of colonial rule was
confronted and negotiated. For the British, rescuing women becomes part of the civilizing
mission. For the indigenous elite, protection of their status or its reform becomes an
urgent necessity, in terms of the honour of the collective religious or national. For all
participants in nineteenth century debates on social reform, women represent
embarrassment or potential.
Epilogue
The contemporary example that illustrates an analogous situation — and one which also
exemplifies the continuing persistence of colonial discourse — is the Shahbano case. On
April 23, 1985 the Supreme Court of India in the Mohammed Ahmed Khanvs Shahbano
Begum case gave divorced Muslim women the right to lifelong maintenance.
The Shahbano affair has raised many of the same questions as the debate on sati: issues of
scriptural interpretation, the relation between scripture and society, the role of
protective legislation for women, the tension between Shahbano as an individual and
Shahbano as a member of a community. On the one hand we need to counter the
arguments of Muslim fundamentalists who claim that ‘an attack on Muslim personal law is
an attack on the Muslim community as such,’ Such a perspective is implicit in statements
regarding ‘the antiquity of Indian culture’ or ‘the weight and persistence of tradition,1or
in discussions of the status of women in India that begin with unqualified references to
Manu Smriti and the scriptures.
Potent Protests: The Age of Consent Controversy, 1891
On 9 January 1891, the Law Member of India, Sir Andrew ScobIe, introduced a Bill in the
Legislative Council raising the age of consent for sexual intercourse for Indian girls from
ten to twelve years. The Bill proposed to define sexual intercourse with married and
unmarried Indian girls below the age of twelve as rape, punishable by ten years'
imprisonment or transportation for life. Nevertheless, by the time the Viceroy, Lord
Lansdowne, signed the Age of Consent Act on 19 March 1891, the entire country was
sharply divided over the measure.
For not only was the limited nature of the Consent Bill itself a compromise with indigenous
upper-caste patriarchal norms and practices, but the colonial authorities were so
impressed by the agitation against the Bill that they did not again initiate any major social
reform legislation in India until the passage of the Child Marriage Restraint Act in 1929.
The politics of colonial masculinity, however, serves to re-contextualise the impact of the
agitation against the Consent Bill on elite nationalist politics in India.
Dagmar Engels, for example, has argued that nationalist politics in Bengal was radicalised
in the conflict between two opposing views of controlling female sexuality: the Bengali
male control of female sexuality was pitted against the regulation of female sexuality in a
Victorian British gender ideology. Tanika Sarkar situates the Consent controversy in the
context of the gradual disillusionment of Indian nationalists with the 'public sphere as an
arena for the test of manhood' this disillusionment made 'Hindu' conjugality and domestic
social arrangements an intensely politicised arena in colonial and nationalist conflicts.
The strategy of the opponents of the Bill was a deliberate attempt to appeal to the logic
of colonial masculinity: on the one hand, it centred the terms of the debate not on the
sexual abuse of Indian child-wives, but on the curtailment of the rights of the Indian
husband; and, on the other, it represented the defence of orthodox Hindu patriarchy in a
more universal patriarchal language of the 'natural' rights of all husbands. The strategy of
the Bengali opponents of the Consent Bill - arising in part from the perception of the
emasculation of the elite Bengali male under colonial rule - not only re-focused the
Consent controversy on the claims of native masculinity, but also connected its claim with
the perception of a growing 'crisis' in British masculinity arising, from among other things,
the feminist challenges of the 1880s.
The British had committed to a policy of ostensible non-interference in the social and
religious affairs of the country. The myth of non-interference was sustained by the
demarcation of a supposedly 'uncolonised' space untouched by colonial rule. This
'uncolonised' space, as Sarkar reminds us, was itself a product of the legal framework of
colonial rule: it demarcated a separate public sphere of criminal codes, land relations,
laws of contract, and so on. The colonial policy of non-interference, therefore, committed
itself in no uncertain terms to the nurturing of orthodox indigenous practices. The
argument that an 'alien government' and an unrepresentative legislature had no right to
legislate the 'internal' affairs of the people was popular with nationalist public opinion.
For the gradual reconstitution of the domestic realm as an arena for Indian autonomy also
coincided with the imperatives of an emerging 'official' Indian nationalism, which, as
Partha Chatterjee has demonstrated, constructed its own unique identity by demarcating
a separate domain in which to locate its autonomy. The result was that colonial
masculinity not only discouraged support for reform, but, even more crucially, it
underwrote the very protest against social reform. Colonial politics, moreover, continued
to use social reform as a test of native masculinity - a handy stick with which to beat
Indian nationalists. This was supported by the colonial insistence that reformers should
concentrate on social and not political reforms. That was sacrificed at the altar of a more
militant nationalist politics: rather, nationalist politics itself was sacrificed to a more
thorough recuperation within the limited arena of colonial masculinity.
Although it was the colonial authorities who introduced the Consent Bill, and then insisted
on passing it over the opposition of a sizeable Indian public opinion, it was clear from the
outset that they were simultaneously anxious to validate the very ground from which the
strongest opposition to the Bill was raised. Thus, the colonial justification for the Consent
Bill was that it did not interfere with indigenous religious principles. ScobIe stressed that
the proposed Bill did not create any 'new offence', but was limited only to amending a
provision already existing in the Indian Penal Code.
The major nationalist positions on the Consent Bill - in spite of the differences between
the reformist support for and revivalist opposition to the Bill - were framed within the
politics of colonial masculinity. Even for the most prominent nationalist supporters of the
Bill, the autonomy of the domestic realm as the site for native masculinity necessarily
competed with any commitment to social reform as the basis for the Bill; they were thus
left justifying their support for the Bill by demonstrating that it was sanctioned within
Hindu religious principles and entailed no 'new interference' in indigenous practices.
Indeed, the colonial mediation of masculinity had produced an acute self-consciousness
about accepting colonial legislative interference, as well as providing greater political
momentum to the nationalist arguments against the Bill.
The Consent controversy - unlike previous debates on childmarriage, which were
concerned primarily with the impact of childmarriage on the development of the race or
on the progress of female education in India - made available alarming statistics on the
sexual abuse of child-wives; but for the majority of Indian nationalists the sexual abuse of
child-wives was not in itself sufficient as a justification for the Consent Bill. This was
especially true in Bengal, where reformist concern for the child-wife was most mediated
by the constraints of a colonial politics of masculinity.
The majority of the reformist-nationalists were indeed eager to demonstrate that the
Consent Bill did not represent an interference with the social and religious practices of
the Hindus. The basis for this strategy, as Uma Chakravarti has demonstrated, was already
well established in the strand within cultural nationalism which justifed the reform of
oppressive social practices as a return to a pristine 'Golden Age'. The reformers also cited
ancient medical authorities such as Sushruta, Charaka, and Agnibes to show that, unlike
the latter-day interpreters of the Shastras, ancient medical texts supported a higher age
at which Indian girls first menstruated and hence became ready for sexual intercourse.
Even the Laws of Manu, the text with arguably the most severe restrictions against
women, was mobilised by the pro-reform lobby to show support for a later age of marriage
and for consummation of marriage in the [Link] major weakness of basing the
justification for the Bill on the reformist interpretation of the Shastras - apart from the
fact that its 'script for the past' was exclusively Hindu and elitist - was that it already
conceded an important point to the opponents of reform: that the preservation of the
domestic realm as an autonomous site for native masculinity was the final arbiter for
justifying social reform.
For the religious objections raised against the Bill were bound by neither the constraints
of consistency nor logic. In The Rukmani Bai case where he reformists attempted to appeal
to the government to repeal the law of forceful fulfilment of conjugal rights, there was
great religious opposition. Nevertheless, the anti-reformist campaign successfully
mobilised religious arguments against the change: they produced evidence to demonstrate
that suits for the restitution of conjugal rights had their basis in the Shastras. They argued
that the colonial law was only providing legal recognition to precepts that were already
sanctioned in religion. The further point, as Engels shows, is that in the Rukmabai case
revivalist-nationalists despite all their arguments of native autonomy in religious and
domestic affairs had no compunction in turning to an imported colonial legislation if it
served to shore up orthodox indigenous patriarchy.
The argument that the Consent Bill was the first real breach of Indian autonomy, as Sarkar
has suggested, was the core of the revivalist-nationalist strategy against the Bill; it was
based on the dubious claim that previous colonial legislations on sati (widow immolationl,
on widow remarriage, and on female infanticide were of much less significance for the
autonomy of the Indian social fabric compared to the present legislation that interfered in
marriage practices. In interfering with the con
summation of child-marriage, therefore, the Consent Bill was portrayed as more odious
than any previous colonial legislation. The Consent Bill, it was argued, would destroy the
entire social and religous fabric of Indian society and reduce 'Indians to the European
levels in matters social and religious' by imposing the 'hateful English marriage system' and
importing 'the gross sexual vices of Europe into India'. Indian Magna Carta' or the Queen's
Proclamation of 1 858, which had committed the colonial government to a policy of non-
interference. Nothing, therefore, better demonstrates the impact of colonial masculinity
in empowering the revivalistnationalist opposition then the injection of a supposedly
'populist' element in the defence of orthodox Hindu patriarchy. The protest meetings
against the Bill in Bengal invariably drew much larger crowds than the meetings organised
in support of the Bill because they were closer to the ainti-colonial agenda. There was
some prominent Muslim support for the Bill.
For if one context for the response of the colonial authorities to the Consent Bill was
dicated by political expediency and the fear of arousing anti-government feeling from the
orthodox Hindu community in India, then another was dictated by the anti-feminist
backlash in Britain: both produced greater tolerance for patriarchal institutions in India.
There was considerable masculinist anxiety in Britain following the gradual reconstitution
of the traditional male public sphere in response to such feminist challenges as the
activities of Josephine Butler and the Ladies' National Association for the repeal of the
Contagious Diseases Acts in the 1880s and the feminist and purity crusades for the passage
of the British Criminal Amendment Act of 1885.
Whereas in Britain the sympathy for the orthodox Hindu opposition to the Bill was
expressed freely in public, the Anglo-Indians in India were obliged to express greater
unanimity for the government-sponsored Bill.
Wicked Widows

Sarkar
A law was enacted in 1856 abrogating an earlier legal and prescriptive prohibition against
the remarriage of Hindu widows. It also underwrote the inheritance rights of sons born of
remarriage.
A second marriage for widowed women was a scandalous proposition in the eyes of most
nineteenth-century Bengali Hindus. It was especially so for upper-caste widows, who were
specifically prohibited from it by sacred texts and custom, arid who were deemed
exemplars of female virtue within a wide sprawl of upwardly mobile ‘low’ castes.
Reformers who urged the legalization of remarriage on colonial lawmakers therefore
challenged a brahmanical mandate— textual as well as customary— of critical importance.
Peasants who supported remarriage were evicted, beaten up, and expelled from their
villages by upper-caste landlords and their low-caste musclemen. Reformist appeals for
help in such cases were ignored by Hindu deputy magistrates and police officers.
The state, too, had to pay. A year after the bill passed into law, British rule faced a
massive insurrection all over North India. Taking stock of this traumatic event later,
colonial rulers strongly felt that the widow remarriage law had been one of the
precipitating factors of rebellion,
They needed to be far more cautious when supporting reform in future. In Sangari and
Vaid’s enormously influential interpretation, reform appears as a pale imitation of the
Victorian master narrative of companionate domesticity that an emergent and compradore
Indian bourgeoisie embraced. It recast patriarchy on Western lines. This negative teleology
makes Indian modernity synonymous with colonial capitalism. By the end of the century it
was overshadowed by a cultural nationalism that decried all reform as a surrender to
colonial meanings, the loss of authentic’ Hindu selfhood.
A number of petitioners supporting remarriage wrote to the Legislative Council saying God
intended men and women to be equals in society since he made their natural capacities
equal. Opponents, on the other hand, were alarmed that remarriage might roll on to
gender equality, this notion in their lexicon being opposed to the laws of nature as well as
to the laws of Hindus, who were bound by the theory of ‘anupatbad', that is, returns
according to capabilities which are inherently unequal between men and women.
Some feminist scholars argue that colonialism was, if anything, complicit with upper-caste
patriarchy. The sati debates were initiated in the Orientalist phase, whereas widow
remarriage was discussed by state officials in an intellectual climate within which
Utilitarian impatience with traditional institutions had for the moment the upper hand; it
would subside markedly after the panic of 1857.
Legislators claimed that the scope of the bill was modest; unlike the Sati Act, it would not
impose a decision on any Hindu who did not agree with the terms of the act. It would
merely enable those Hindus who believed that scripture allowed remarriage to live by this
interpretation of their faith. Unlike the anti-immolation agitation, the campaign for
remarriage was rather entirely an Indian initiative.
The man, however, could remarry any number of times and could desert his wife. The wife
had no such option. She remained subordinate at all stages of life: to her father in
childhood, to her husband over her youth, to her son through old age. ‘On no account is
she to enjoy autonomy’, prescribed Manu, the eponymous ancient lawgiver, the most
venerated among all authorities. Manu considered the wife to be ardhangini— the half-
body of her husband. This meant that a husband lived on in his wife even after his death;
thereby the marriage tie remained in place, and any subsequent relationship between the
widow and a man could only be adulterous.
Manu, in fact, quite explicitly prescribed against such a custom: A good woman does not
take a second husband, and ‘Mantras related to marriage rites apply only to the marriage
of a virgin.’

Vidyasagar used averse in the Parasharasamhita which recommended remarriage under a
set of five conditions. Child marriage— widespread among all castes— had produced a very
large range of child widows; quite a few who married under the new act had been
widowed at 3 or 4.
The widow was denied a number of pulses and vegetables that might overheat her body
and stimulate unseemly desire. Her dress— a stark white and no jewellery, symbolizing her
status as non-wife— was obviously aimed to maximize her unattractiveness. She was
debarred from ritual ceremonies and all collective female rites that lit up the lives of
other women. Widows were, thus, doomed to a suspect existence. They were like the
notified or criminal tribes of British India, whose crime lay not in the nature of individual
action but in their collective social location. A paradox arose out of the domestic policing
of her conduct, for her male guardians could sexually exploit the young widow and no real
stigma would be attached to such behaviour. Male desire for the widow was not, however,
always exploitative. Widows provided almost the only possible route to consensual love
and self-willed romance, because the wife, married in infancy and crushed under domestic
and procreative labour, was rarely a figure of romance, and the wives of other men were
less responsive and less available sexually.
Widow remarriages thus not only bestowed legal sanction on romances and initiated love
marriages within Hindu conjugality, they also overturned norms of female conduct within
the relationship. Desire could now, as we saw in the case cited above, be a female
initiative and a female expression. The orthodoxy insisted— and the 1837 Law Commission
was persuaded— that remarriage was no marriage. Marriage required the essential rite of
a woman being given away from one lineage or family to another, as a gift in exchange.
she had become the property of her husband. He being dead, now there was no one to
give her away, for she had no right in her own person and could not perform the ritual of
kanyadan, or gift of the daughter. Ergo, if the marriage ritual could not be performed in
its entirety, it was legally invalid.
Since both widow and prostitute functioned under the same sign of non-prescribed and
undomesticated desire, it is no wonder that the same Bengali colloquial term (ranrh)
denotes both kinds of women. When remarriage was suggested, there was an explosion of
obscene writings that lampooned the lustful widow. The desiring widow, moreover,
offended the economy of hypergamous marriages where girls competed for pure-caste
men.
It was not even simply a question of widows’ property rights, for remarriage debates also
revolved very largely around orthodox opposition to the inheritance rights of sons born of
remarriage— which the law underwrote. The orthodox argued that such sons were of
polluted origin and could not be allowed to override the superior claims of pure-born even
if more distant male heirs. Hindu marriage, succession, and inheritance were collective,
lineage decisions, they argued, whereas the state had operated on a narrowly
individualistic basis in thinking the law affected only two partners.
Vidyasagar sought to persuade the state that remarriage was scriptural and that it merely
violated false custom. He tried to disarm orthodoxy by pointing out the harm that
prohibition did to orthodox morality: secret liaison, foeticide, infanticide. The most cited
argument against remarriage was that it would encourage women to murder unattractive
and elderly husbands. They would be led astray by their innate depravity, for they had no
education to understand the baseness of such instincts.
"Without His Consent?": Marriage and Women's Migration in Colonial India

Samita Sen
Migrant men were not one-time permanent migrants to the industrial center; rather they
were "peasant-proletarians," circulating between town and country. Peasant women were
considered not only immobile but also "invisible" as a result of cultural norms of purdah,
which required their segregation and seclusion Over laid with associations of public and
private spheres, the city appeared m these accounts as a male space, while the village
and its women acquired idyllic characteristics in repeated nostalgic retellings.
However, this paper argues that women did migrate for work, though not at the same
rates as men, and that they were in great demand away from their homes for both
productive and reproductive purposes. However, rather than becoming more mobile over
time as a result of the commercialization of agriculture, women became less mobile. his
may be because the literature on "industrial plantation" labor has focused on "unfreedom"
as its central characteristic, while for women, as this paper will show, migration to mines,
mills, and plantations was often a means to escape abusive husbands and the fetters of
family Wage labor for migrant women was too exploitive and restrictive to be
romanticized as a source of liberty, but migration often meant something different for
women than it did for men, and its history merits exploration.
From the 1860s, the unpaid component of women's and children's labor increased steeply,
while its paid component declined. Thus, paradoxically, even as women's work became
more critical to household economies and to the state, women were less likely to receive
wages for it. At the same time, women were increasingly denied the right to escape
unhappy marriages, which gave husbands more control over their wives' productive and
reproductive labor.
In Bombay and Calcutta (and surrounding mill towns), women comprised about thirty to
forty percent of the adult population. At the peak, one in four workers in the Bombay
mills and one in five in the Calcutta mills were female. Culture" is the usual answer to this
question Until recently, scholars argued that social sanctions against women's mobility and
visibility were effective deterrents to family migration. Men, who migrated to the city to
supplement their household income, would not risk their foothold in the village by
bringing their wives to the city.
It appears that women who suffered impoverishment through inadequacy or loss of male
earnings by desertion or barrenness or widowhood were the ones to opt for urban
migration and factory work. The same applied to women who wished to physically escape
oppressive fathers and hu bands These are the women who figured prominently in the
female workforce.
Radhakamal Mukherjee, author of the first major study of the "working class" in India,
found that "all industrial towns show the preponderance of single male workers who have
left their families behind" and argued on that basis that "a serious disparity between the
proportions of sexes" was responsible "for prostitution and spread of venereal diseases.
The high point of women's employment was reached in 1920, when they formed about 37 5
per cent of the total workforce in coal mines. While this labor arrangement was
mistakenly regarded as a "family" mode of working, the evidence from the Royal
Commission of Labour (1930-31) shows that nearly half the women migrating to coalfields
were single Thirty percent of the women working in so-called "family units" were not
formally attached to the men.

The misnomer of "family units" carried a high cost for mining women when, in 1929, they
were prohibited from underground work, mining, and loading, which earlier had employed
large numbers of women. But since the majority of these women were in fact "single,"
they were not just earning "supplementary" family income as reformers had assumed. As
the prohibition began to be more strictly enforced beginning in 1937, sixty percent of
adult women in mining centres became unemployed.
As women's role in industries and mines became more marginal, these industries became
the core of the "formal" sector in Independent India. So male workers enjoyed increasing
state regulation and organized themselves in federated trade unions. Nevertheless, the
valorisation of the domesticated wife and mother ideology shared by employers, workers
and official -dom-facilitated the exclusion of women and children from the "formal" sector.
Women were greatly in demand in plantations for specific tasks constructed as feminine,
and planters were willing to go to great lengths to recruit women, singly or as part of
families. The twin needs of cheap female and child labor combined with the imperative of
creating a stable labor force through generational reproduction produced a high demand
for women migrants in the Assam tea industry.
The critical question was whether married women's migration could be "voluntary" at all,
and if it was, whether such a choice was acceptable .Most officers felt that there could be
no "voluntary" migration by married women First, they argued, wives were usually
"deceived" about the conditions of the contract, second, these women could not be given
the right to abandon their husband and children; and third, Assam migration involved a
revocation of marriage and the exercise of alternative sexual choices.
In the end, the Government of India was forced to agree that in the case of minors and
women, one's "own free will" to migrate could not be admitted. In the hunting-ground of
Assam recruiters, women were subject to family authority, their labor was owned by the
family to be deployed for household subsistence In general, the colonial state facilitated
this process, the pressure of tea interests had to be denied m the larger interests of
revenue and stability.
Settlement policies of the colonial state conferred absolute property rights to male heads
of household in land and homestead at the cost of other customary claims. Indeed, the
survival of the small and marginal peasant family, squeezed by heightened rent and
revenue demand, depended on extracting more and more unpaid labor from wives and
children As a result, the paid component of women's (and children's) work declined. Even
as their labor obligations increased m the nineteenth century, wives, daughters, and
widowed female kin became even more subject to the arbitrary authority of male
guardians. More than ever, rural women's subsistence, indeed their survival, became
contingent on fulfilling familial roles and obligation. Given the importance of the small
peasant economy in their revenue calculations, the colonial state attempted to further
this process by enhancing the authority of the male head of the family over dependent
wives, female km, and children. A series of judicial, legislative, and administrative
measures were undertaken, which provided the paterfamilias greater control over the
labor and mobility of other family members. ial legislation,despite its stated deference to
"custom," chose to extend elite practices at the cost of laboring women's traditional rights
of divorce and remarriage. The combined pressure of increasing economic dependence on
family resources and a more draconian marriage regime helped to contain women within
the family and facilitated the extraction of their labor.
The Act of 1901 sought to re-establish regulation of plantation migration and in particular
women's recruitment. Women's consent was deferred to the family. In the next two
decades, the issue of "family consent" remained a constant source of controversy in
women's recruitment. Legislation did not always prove effective in deterring women
migrants. Nevertheless, an important principle had been put in place. In law, marriage
was now deemed a contract that precluded women's entering into any contract for labor
without the consent of husbands or male guardians. The Act of 1901 was a clear step
towards the juridical deproletarianization of women. Marriage was construed as a juridical
barrier to women's "free" entry into certain segments of the wage labor market. Thus, in
the case of women, the experience of deproletarianization as well as of
proletarianization, was dual and distinctive. Women were proletarianized both as
members of peasant/artisan households as well as through establishment of individual
male proprietary rights. Such women, economically or juridically separated from the
means of production and subsistence, were not constituted as free subjects in relation to
the labor market. Those who did enter plantation employment were deproltarianized,
along with male workers, restricted by penal contracts from with drawing their labor.
Venereal Disease, Prostitution, and the Politics of Empire: The Case of British India

Phillipa Levine
Political historians in particular have seen little connection between sexually transmitted
diseases and the business of politics and governance. Yet in late nineteenth-century
Britain, debate about the correct way to regulate and stem an apparent tidal wave of
syphilis and gonorrhea was a regular theme of parliamentary debate as well as a common
topic among journalists and social commentators. In post-Mutiny British India, venereal
diseases and the various legislative means enacted from the 1860s on to combat them
spawned a lengthy controversy, spilling over into Lord Kitchener's military administration
early in the twentieth century. Cynthia Enloe and Allan Brandt both have argued
compellingly that the politics of venereal disease are a matter "central to the state."
In this specific and often segregated arena of public health, attempts to control venereal
contagion rested largely on the control of female prostitution as the assumed
concomitant, and indeed origin, of venereal affliction. Enacted principally in the 1860s, at
the same time as the British acts, almost every British colony acquired regulations
governing the behavior of prostitute women as a measure against the encroachment of
syphilis and gonorrhea. In India two major legislative measures-both assuming this direct
relationship between the fact of prostitution and the transmission of disease-were
introduced in the mid-1860s. Thus, unlike the legislation in Britain, which even at its peak
extended only to eighteen military districts in and around the British Isles, the Indian
Contagious Diseases Act directly affected the indigenous urban population in those cities
where the legislation was in force. Before the imposition of direct British rule in 1858,
local enactments had established regular examination of women as well as hospitals for
their reception when diseased."
The mid-century abounded with pamphlets, sermons, books, and periodical articles about
the "social evil." of Prostitution. No such moral precepts clutter the Indian legislation and
little if any talk is heard of redemption and rescue was a strong British belief at this
juncture that prostitution was a hereditary caste profession within Hindu society, an
assumption that sat very comfortably with general theories about the morals of the
"Orient."
Legal and other authorities found attempts to define the prostitute even more onerous.
The "com mon prostitute" of statutory law has never been completely defined. In the new
regulations, all workers servicing the military cantonments were subject to various
regulations and the shift of attention was ostensibly from the body of the woman to the
specific detection of disease. This formulation blurs-as policymakers at the time perhaps
intended-the structuring power of the sex/gender system and ignores the specificity of
prostitution as a sexualized and fundamentally female labor form.
These cruel and callous assumptions substituted for legal definition and, in the Indian
context more particularly, coalesced around assumptions of racial hierarchy. Thus,
prostitution became a racially definable category when moved to a colonizing context. As
disease became more and more a convenient metaphor for savagery or primitiveness, the
connection between race and "unacceptable" forms of sexual behavior was powerfully
underscored. Venereal disease legislation was justifiable, in British eyes, as an agent of
progressive civilizing Western medicine in its mission to tame the devastating effects of
tropical sickness. The Indian woman was a dubious moral category, and her diseased state
and reluctance to seek treatment was seen as a measure of native recalcitrance to British
rule. In a subliminal way, the memorandum insinuates that those who indulge themselves
in India are in danger of becoming contaminated not only by physiologically apparent ne of
the most delicate issues that British lawmakers faced in this respect was the existence of
European women trading sex in India. The European prostitute, by her very presence,
challenged white supremacy in distinctive and critical ways, which reveal dramatically and
vividly the importance of sexual politics in colonial rule. Despite the attempt to segregate
European-serving and native-serving brothels, it was widely acknowledged that many
women rarely heeded these niceties of distinction unless compelled to do so. In
consequence, reality held out the possibility that European women might, in fact, sexually
service Asian men. This was a matter of considerable political gravity; the symbolic
servitude of a white woman to a black man would radically and fatally undermine the
basis of colonial rule disease but by a whole grim process of orientalization. In the politics
of empire, there was no room for even a hint of the effeminacy assumed to exist among
subject men. Domination and conquest, masculinity and authority, were critical factors in
this power play.
These opinions suggest that the control of female labor, in a variety of forms, was as
critical to the maintenance of empire as that of male labor, and that a clear demarcation
of gendered labor operated even in the substantially masculine environment of military
stations is likelier that British officials used sex as a central political mechanism to subdue
its subject population as well as potential unrest from within its own military ranks, more
especially after the events of 1857, the history of which became sexualized in the telling
so very rapidly. This legislation, then, with its assumption of the necessary link between
heterosexual prostitution and venereal disease, established a complex pattern of
segregation and control that secured an apparent homogeneity of racial and sexual
Otherness centered on the person, and literally the body, of the female prostitute.

Lata Mani, ‘Contentious Traditions: The Debate on Sati in Colonial India’ in Kumkum Sangari and Sudesh
Vaid (eds.) Recasting Women: Essays in Colonial History (Kali for Women 1989) 88
Tanika Sarkar, ‘Wicked Widows: Law and Faith in Nineteenth Century Public Sphere Debates’ in Rebels,
Wives, Saints: Designing Selves and Nations in Colonial Times (Permanent Black 2009) 121
Mrinalini Sinha, Colonial Masculinities: The ‘Manly Englishman’ and ‘Effeminate Bengali’ in the Late
Nineteenth Century (Manchester University Press 1995) 80.
Philippa Levine, ‘Venereal Disease, Prostitution, and the Politics of Empire: The Case of British
India’ [1994] 4 Journal of the History of Sexuality 4, 579
Samita Sen, ‘“Without His Consent?”: Marriage and Women’s Migration in Colonial India’ [2004] 64
International and Working-Class History, Spring Issue, 77