Law as a product of tradition and culture.

-Brief idea of Laws historicity.

As Jarkko Tontti has recently pointed out in his Right and Prejudice
(2004, p. 1-2), one of the main defects of legal theory (Neo-Kantian) lies
in its ahistorical approach: both law and legal scholarship have been
treated as phenomena divorced from history. As a logical outcome of
this way of thinking about law, we can point to Kelsen’s legal positivism,
his pure theory of law. Kelsenian positivism, in turn, gives rise to and
justifies the familiar figure of the omnipotent legislator. But law and
legal scholarship are thoroughly historical entities. They are bound to
the very past of the law, to its memory, to the conceptual and
normative resources transmitted from the law’s history.

-Introduction.

Culture is concerned with the intellectual, spiritual and creative aspects

of collective life. In simple words it can be described as, 'the totality of
the basic impulses of the social conscience'. (MC Setalvad).

What is Culture? -‘It is the sum total of values expressed through art,
religion, literature, social institutions and behaviour, the overt acts of
individuals and mass action inspired by collective urges.’ Its first
characteristic is Continuity.

A distinctive culture comes into existence when people develop a

continuous way of life. This is expressed in many ways like common
traditions and norms of conduct, common institutions (marriage,
family), common memory of triumphs achieved (Bharata war fought at
Kurushetra between the Pandavas and Kauravas). Example where ever
we go in India there are certain accepted norms of conduct.

Social conscience: According to Abid Hussain, "culture is a sense of

ultimate value possessed by a particular society as expressed in its
collective institutions by its individual members in their feelings and
attitudes and manners as well as significant they give to material
objects" .(Abid Hussain, The National Culture of India, P.3).

Tylor considers culture as that complex whole which includes

knowledge, belief, art, morals, law, custom and any other capabilities
and habits acquired by man as a society. (Edward Tylor, Primitive
Culture, P. 1).

Bhikhu Parekh views that it is a historically created system of beliefs

and practice in terms of which a group of human beings understand,
regulate and structure their individual and collective life. (Bhinku
Parekh, Rethinking Multiculturalism, P.143).

Culture partly consists of norms for, or standards of behaviour within

and outside the family, and its patterns range from habits of dress, diet
and work to bodies of customs, religion and typology of knowledge
system. It designates a way of life and stimulates emotion.

At the basic level it is reflected in language, embedded in ethnicity,

morality and religion, and connected with human activities and
relations. In the above anthropological sense, it refers to a system of
shared meanings through which collective existence becomes possible.

With regard to Tradition, there are two concepts: a philosophical one

and a sociological-historical one. The contents of the philosophical
concept of tradition underlines the notion that all human acts of
consciousness, all acts of understanding, interpretation and cognition
are bound to tradition; we humans never approach the object of our
cognition or interpretation with a tabula rasa consciousness but always
through the conceptual and interpretative means provided by a specific
tradition. “Tradition” in this sense is equivalent to the preconceptions
(pre-understanding) and prejudices which are necessary in order for the
process of understanding and interpretation to be launched. We draw
this “pre-understanding” from the culture into which we have been
“thrown”, in which we have grown up and internalised our
fundamental conceptions of the world. On the other hand, according to
the historical-sociological concept of tradition they are something
distinctive to pre-modern or “traditional” societies. Tradition means
commitment, not only to time, to the past, but also to a place.
Traditions are local traditions which divide people into friends and foes,
into insiders and outsiders; they define personal and collective
identities.

In conclusion, it is seen that all legal practices are bound by tradition,

by the law’s history, and that, consequently, all legal practices also play
their part in the transmission of legal tradition. This also concerns the
legislator: the past is the primary temporal dimension even for the
legislator.

-Law and Social Transformation

Going beyond culture's potentiality of keeping individuals or even

community tightly bound by its behavioural patterns, Mathew Arnold
thought of attainment of perfection in or through cultures a desirable
social practice. Arnold viewed that culture consists in balanced
cultivation of all faculties of man: intellect and emotion, intuition and
self-perception; and its perfection involves fine tuning of human
sensibilities and assertively achieved hegemony of an identifiable set of
ideas over all other ideas in society.(Mattew Arnold, Literature and
Dogma, P. 9). Passion for sweetness and light, or love and knowledge,
pursues the path of perfection.

Gandhiji and Tagore have also viewed urge for perfection as central to
the domain of culture. Rejection of blind beliefs, discarding of gender
bias, modification of old conventions, and religious ceremonies to suit
the changed circumstances, and novel experiments for better social
values have been preached by Gandhiji in the course of refinement of
culture.

Tagore believed in the creative value of human freedom and in the

validity of reason as a guide against dogmatism and restraints of
history, and as a means to contribute to the progressive life of
humanity by perfecting the human nature.

Veena Das regards Arnold's view on perfection of culture as having

profound implications because of competition and tension between
community and state in bringing refinement of culture. (Veena Das,
Cultural Rights and The Definition Of Community,
P.117,122).Refinement involves elimination of some values and
establishment of some other. Although state's justification for
interference consists in upholding of human rights and implementation
of social justice policies, the risks of State becoming prime value giver in
cultural process may also surface.

Edward Said views that when culture is consecrated by the state, it

becomes a system of discriminations and evaluations through which a
series of exclusions can be legislated from above.(Edward Said, The
World, The Text and the Critic, P. 10.) Although Robert Unger considers
that culture is more organically related to the traditions of groups and
that state is not appropriate custodian of tradition, he is not averse to
substitute theory of organic group by the ideal of empowerment.
(Robert Unger, Knoledge and Politics, P.339-40).

From the perspective of the disadvantaged sections of the society or

victims of cultural fault-women, untouchables, tribals and minorities—a
need-based policy of empowerment can be regarded as well within the
domain of welfare state and human rights system. But the overreach of
state policy or reactionary approach of cultural community, because of
the latter's mooring in emotion, causes disturbance. According to
Veena Das, because of double definition of culture the question of
cultural rights gets squarely placed in the larger questions of passions
rather than interests.

Culture and tradition as products of the past: often constitute mixed

bag of good and evil. As Nietzche said, it is dangerous to be an heir
because it is inheritance to centuries of both wisdom and madness of
the past. (Cited In Jawaharlal Nehru, Discovery of India, P. 36). To get
relief from the burden of the past, one should realise lessons from the
past. Compositeness of culture was accompanied by a strong tradition
of tolerance and coexistence.

Jawaharlal Nehru viewed: "Old established traditions cannot be easily

scrapped or dispensed with; in moments of crisis they rise and
dominate the minds of men, and as we have seen, a deliberate attempt
is made to use those traditions to rouse a people to a high pitch of
effort and sacrifice. Traditions have to be accepted to a large extent
and adopted and transformed to meet new conditions and ways of
thought, and at the same time new traditions have to be built up."
It is this interaction between culture and law that makes historical
discourse relevant in legal analysis. While rational spirit of inquiry shall
be carried on to question the accumulated decrepit of the past in order
to avoid sluggishness of the cultural stream, parts of the old worth to
be preserved shall be harmonised with the driving force of the new age.

-Culture, social transformation and law.

Yogendra Singh regards culture as unique human reality, emanating

from humankind's unity with nature and manifesting in the
technological, mental, moral, social, aesthetic and spiritual
achievements of humankind. It gives meaning to our relationships and
forms our subjective identity. He said: "Culture, therefore, enters into
the process of social change in many forms and at various levels. It
defines the quality of social change as its indicator. By selective
adaptations to outside cultural forces, it has a large measure of
resilience. With all its institutional pervasiveness, it has a core which
acts as a filter or a moderator to the outside forces of cultural contact
and change. This also explains why in each mainstream culture one may
find existence of subcultures and counter-cultures." (Yogendra Singh,
Culture Change In India, P.25).

Also, According to Yogendra Singh, while cultural policy in the post-

colonial period has exhibited more concern for preservation of cultural
identity and less linkage to the policies of social and economic
development, the influence of folk and textual cultural tradition upon
society, the impact of technology upon culture to render it marketable
commodity and the intercultural interactions have shown the need to
balance with the latest changes. He suggests for evolving a creative
balance between continuity and change in cultural policy.
In fact, as Lawrence Friedmann viewed, culture changes very slowly and
with great difficulty, and it resists manipulation. (Lawrence Friedmann,
The place of Legal Culture In the Sociology Of Law, P. 185, 191).

Bhikhu Parekh focuses on the mutual influence between culture and

the economic, political and other institutions." No culture is ever free
from contestation and change. Culture is not a passive inheritance but
an active process of creating meaning.

In response to several factors such as technology, conquest, wars, and

even natural calamities, a society's culture is prone to change. (S C Das
(1948) 7 CAD at P. 571).

Since culture is community-made, in tradition-bound society, its impact

is immense. Culture's anchoring in folk psychology, level of group
conscience and the extent of creative leadership-either of cultural
agents or of political persons-are the factors that substantively decide
the phase, extent and direction of change in culture.

Even in communist countries like China it is recognised that the power

of cultures is deeply rooted in the vitality, creativity and cohesion of a
nation; that culture is interactive with economic and political activities;
and that its status and functions are becoming more and more the
competition in overall national strength. (Bhikhu Parekh, P. 74-75).

Most prominent human activity influenced and even monitored by

culture are religious freedoms, language rights and ethnic or tribal
rights since religion, language and ethnicity constitute major constructs
of culture.

Religious Freedom, both individual and denominational, enables

continuance of religious traditions, beliefs and activities, which form an
important part of culture. The morals, customs and laws relating to
family, because of their historical genesis in socio-religious factors or
communitarian factors, are sometimes projected as outcomes of
distinct culture of the community.

M.C. Setalvad views, "Positive law can thus truly be said to be born out
of and an integral part of the culture of man. There can thus be no
antithesis between law and culture and their inter-relation must
necessarily be close and intimate. Law cannot be oblivious of the
accepted notions of society which it is designed to serve.

Law is part of a nation's culture, being product of group conscience and

group activity. Born in commonly accepted moral principles, partly
metaphysical principles of religion and grown in the warmth of ethical
considerations of coexistence and welfare of all, law mirrors culture of
the community. Law is not a product of accidental or arbitrary origin,
but it grows with the growth, and strengthens with the strength of the
people and finally dies away as a nation loses its identity. (W.
Friedmann, Legal Theory, P. 210-11).

Law is to be found in the customs, popular faith and traditions of

people or in the internally operating silent forces rather than in the
wish of the lawgiver. Each nation and generation gradually unfolds the
spirit of the age and contributes to paving the road of self-reflecting
realisation of freedom. Hence, law varies with culture.

Donald Black says, "Where culture is sparse so is law; where it is rich,

law flourishes." (Donald Black, The Behaviour Of Law, P. 63).

But this is oversimplification of the connection because it is the

diversity, distortions and faults in the culture that impose pressure
upon the legal system to have a wider role of social regulation. If law's
flourishing is to be understood in a limited sense people's acceptance
of law in their day-to-day behaviour because of norm abiding culture,
does not address the larger issue.

However, the impediments in the name of protection of culture to the

efforts of introducing gender justice reforms in personal law or to the
social reform policies that eradicate social evils need to be surmounted
by synthesising the major thrust of Indian culture and humanist values
in modern thoughts.

-Traditional Indian Jurisprudence and the Anglo-Saxon Legal System –

Relative Roles of Law and Custom: The most significant difference
between these two systems of law which has a bearing on the subject
under review is the relative importance giving to the sources of law.
The significance of the imposition of Anglo-Saxon jurisprudence on the
Indian legal environment lies not only in the characterization of the
sources of law, but also in the inter-relationship between them.
In modern law, the three identified sources of law are statute,
precedent and doctrine; in that order of precedence, with statute
bearing over-riding authority over the other sources. Wherever
precedent or doctrine contradicts statute, however old the former, the
latter will prevail. In the traditional Indian jurisprudential framework,
Dharma, Royal Order and Custom were the three sources of law. A
delicate balance was maintained among the three sources, which
reserved a distinct and specific authority for each, vis-a-vis the others.
(Dealt with in detail later in the topic. 'ancient India' )

-Indian culture is meticulously built through the basic concept of

indebtedness (runa): the indebtedness to the ancestors, to the sages
and to the Gods. In a Iarger sense, it comprehended obligation to the
society, to the environment and to oneself to excel in co-existence with
others.

Unlike the western and modern thinking, the legal system was
embedded in basic rule that required performance of each one's duties
towards others and to the society at large. In fact, basing human
actions in duties and other—regarding considerations builds up a
strong system sensitive to social welfare and practicing tolerance."

Social solidarity, which Duguit thought of in modern times,( W

Friedmann, Legal Theory, P. 232) was prevalent there and it thrived
through social cohesion and harmony.

The idea that there is no right except the one to perform one's duty
was well propounded and emphasised in ancient Indian thinking. Smriti
writers had to respond to the vedic visions of humanism and fraternity
and to the social aspirations as developed in customs. The inputs of
justice and good conduct (sadachara) inherent in religious culture took
the discourse on human welfare far ahead of pedantic inquiry on
movement from status to contract, exhibiting profound strength for
internal rectification. Law was regarded as the king of kings, and
touchstone for valid actions. (Brihadaranyakopanishat, I-1-14).

Sir Henry Maine regarded that in progressive societies, legal systems

were propelled by desire to improve and develop and go beyond the
phase of code through creative techniques of legal adaptations,
whereas in custom ridden and status bound societies fixed legal
condition dominated by family dependency narrowed the scope of
growth of individual members. (Sir Henry Maine, Ancient Law, P. 22).
In contrast, Julius Stone looks to the tradition-bound character of
Indian society arising from its richly varied institutions and values. Its
belief in permanence of existing social arrangement, its reliance on
family rather than state for social and economic security, its confidence
in karma philosophy that sufferings and frustrations of the present will
be made good by the serene blessings of future incarnation, and its
trust in sadhus and religious literature as great social inheritance build a
fort into which penetration is an unenviable task. (Julius Stone, Social
Dimensions of Law and Justice, at p. 112).

The perceptions of Indian culture: According to Amartya Sen, the

perceptions of Indian culture, by those who weren't born and raised in
India, tend to be one of at least three categories, writes Sen:

Exoticist approach: it concentrates on the wondrous aspects of the

culture of India. The focus of this approach of understanding Indian
culture is to present the different, the strange and as Hegel put it, "a
country that has existed for millennia in the imaginations of the
Europeans."

Magisterial approach: it assumes a sense of superiority and guardian

hood necessary to deal with India, a country that James Mill's
imperialist history thought of as grotesquely primitive culture. While
great many British observers did not agree with such views of India, and
some non-British ones did, it is an approach that contributes to some
confusion about the culture of India.

Curatorial approach: it attempts to observe, classify and record the

diversity of Indian culture in different parts of India. The curators do
not look only for the strange, are not weighed by political priorities, and
tend to be free from stereotypes. The curatorial approach,
nevertheless, have an inclination to see Indian culture as more special
and extraordinarily interesting than it actually may be.

-The concept of 'competence to author a change in the culture-related

law,' is viewed by Ehrlich and Gierke from a communitarian viewpoint.
Ehrlich considers that tribal allegiance, familial obligation and religious
piety provide motive force to obey social norms.

State is one amidst a number of associations like family, religious body

and corporate entity and has the responsibility of protecting its
institution and facilitating other associations. Law is derived from social
facts anchored in the conviction of association of people. Living law of
people is manifested in the norms of associations. It is a law that
actually lives in the society in permanent evolution and constant social
response, outpacing the rigid state law. He viewed law as both product
and stimulus of social development. By locating source for legal
development in society rather than in legislation or judicial decision or
juristic writing, he gave a dynamic role for evolution of law from social
experience.

Multiculturalism and social transformation in India: The fact of cultural

diversity has been responded in recent decades by construction of a
value recognising legitimacy of the differences rather than by approving
wider society's assimilating or homogenising thrust upon the smaller
ones. Multi-cultures basically aspire for a society in which different
cultures are respected on equal footing; their institutional autonomy is
safeguarded; their socio-economic marginalisation is avoided; and
social diversity celebrated. It sets terms for mutual interaction for social
cooperation.
 In India, because of the vastness of geographical area, which
accommodates various linguistic and ethnic communities, historical
factors of religious and cultural diversity arising from invasions, trade
and settlement by foreigners, immigration and globalisation,
coexistence and interaction of different cultures have increasingly
occurred. Sub-cultural diversities also took place.

NOW, an in-depth look at the social change witnessed In India with

reference to the three eras. ( ancient India, medieval India and modern
India.)

-Law and social transformation in ancient India

In the early stage of predominantly religion based culture of ancient

India there was hardly any distinction between religion, morality and
legal obligation. Their common genesis in the notion of righteousness
(rta) envisaged their natural interactions and mutual assistance. A
wrong was considered as sin and penance and penalty were prescribed
for it as remedy in a proportionate manner. (PN Sen, General Principles
of Hindu Law, P.342-44)

While the mixing of norms was not avoided, there was refinement in
course of time about legal principles by gathering support from the
ethical principles and popular practice.

Dharma: It played a cardinal role towards maintenance of social order,

general wellbeing, progress of mankind and social stability. It meant
principles followed by those learned in the Vedas and those approved
by the conscience of the virtuous who were exempt from hatred and
inordinate affection. It emphasised rule of law. The Brihahadaranyak
Upanishad stated, "There is nothing higher than dharma. Even a weak
man hopes to prevail over a very strong man on the strength of
dharma, just as he prevails over a wrongdoer with the help of the King.
(Br. Ar. Up. 1-4-14, Vol. XV, P. 14-89).

In brief, it formed a device of self-controlled ordering, as Warren

Menski puts it.

The laws growth with the growth of community's culture became clear
along with recognition of fourfold source of law: dharma
(righteousness) vyavahara (practice), charitra (usage) and rajasasana
(royal edict) each of the latter to prevail over the earlier ones. It can
thus be said that, the factor that kept ancient Indian law nearer to
considerations of justice and societal concern is the overriding
influence of dharma upon economic process and human desires. Also,
the 'Trivarga principle' ordains for subordinating property
considerations and desires or passions to righteous principles. (Manu,
II-224; IV-176; Vaj., I-115; Vatsayana, 1.2.7-15).

Further, extending this logic, it has been powerfully put forward in

Ishopanishad and Bhagavadgita that an entitlement to any good thing
comes from performance of duty and sacrifice. (Ishavasya Upanishad,
shloka 1; Bhagavadgita, II-47).

Basing right in other regarding duty is a fine principle that presupposed

people's active participation. It was based on duties that social
structure was formed and planned. The sources of dharma were
enumerated to be the Veda, Tradition and Good Custom.

The Vedas were ‘Revelations’, or revealed texts gathered directly by

inspired savants or rsis. Several schools of interpreters were established
and functioned through the ages, each developing its commentaries
and philosophical treatises on the Vedas. While the Vedas themselves
did not contain any prescriptive rules of behaviour, but only ‘references
to usage’ which constituted dharma, commentaries and treatises
contained numerous precepts, which prescribed rules for governing
behaviour. The interpretation of the Vedas was thus a continuous
exercise involving the examination and assessment of human
conditions and behaviour from the perspective of dharma, the sum of
all moral and religious truths, only some of which were revealed in the
form of srutis or the Vedas.

More than the Vedas, it was from smrti or Tradition - perception

founded on the memory of sages - that rules of dharma were to be
found. The entire sacred literature of the Hindu religion – Vedangas,
Puranas, and the epics Mahabharata and Ramayana constituted the
smriti and incorporated all such rules as could be derived from the
Vedas.

Where there was inconsistency or lack of clarity on any rule, recourse

was had to “Good Custom”, the third source of Dharma. “Good
Custom” referred to the way good people lived, i.e. the custom of the
good or the custom of those who had undergone good instruction in
the virtuous or spiritual life. It was to be distinguished from the
ordinary, habitual practices of people, which is also called custom. It
was the former, which was the source of dharma, and not the latter,
which however, could be a source of law.

Generally, Dharma was thought to override all other sources of law,

though the
Arthasastra maintained that the royal ordinance overrides the others.
However, this doctrine is ascribed to the totalitarianism of the Mauryas,
which few jurists would have supported. (Basham, A.L., "The Wonder
That Was India", p.114.)
Royal Order: Kingship was regarded as an institution necessary for the
maintenance of the social order. The King’s function was to protect his
subjects and guarantee their security. This was his dharma, and it was a
religious duty to maintain public peace and harmony, for which he
passes ‘orders’.

Custom: Custom is distinguished from both Dharma and Royal

Ordinance; dharma has a transcendental character, the law that ‘ought
to be ‘, while custom was a purely social phenomenon. The rule of
dharma did not become ‘law’ until it entered into behaviour and was
accepted by the population as a customary rule.

The Arthashastra, an important source of information on the role of the

ancient Indian State, constitutes the science of economics and
statecraft. The study of economics, the art of government and foreign
policy was a preoccupation of ancient scholars in India and is reported
to have started around 650 BC. The earliest text on Arthashastra that
has survived is that of Kautilya (4th–3rd century BC); modern research
has revealed that there were at least four distinct schools and thirteen
individuals teachers of Arthashastra before Kautilya. Kautilya’s treatise
deals elaborately with the functions of the State in all sectors of
government – administration; law, order and justice; taxation, revenue
and expenditure; foreign policy; defence and war. The treatise is in the
nature of instructions to a ruler on the ways and means of achieving
the welfare of his subjects through the acquisition of wealth. His work,
while drawing a wealth of detail from the then prevailing society, is a
description of an ideal state, and is not a true and complete reflection
of his or an earlier period of Indian history.

Any matter in dispute was to be judged according to the four bases of

justice. These, in order of increasing importance, were:
· Dharma, which was based on truth.
· Evidence, which was based on witnesses.
· Custom, the tradition accepted by the people.
· Royal edicts, meaning law as promulgated.

Whenever there was a disagreement between custom and the

dharmashastras, or between the evidence and the shastras, the matter,
according to Kautilya, was to be decided in accordance with dharma.
Whenever there was a conflict between the shastras and the written
law based on dharma, then the written law was to prevail (i.e. dharma
as then understood was to prevail); the reason underlying this was that
the reasoning explaining the derivation of a particular shastra from
dharma was no longer available.

In addition, various facets of justice have been identified in ancient

India. One prominent example is that truth goes hand in hand with
justice is reflective of administration of justice. "Satya is the speaking of
truth while dhai-ma is the observance of truth in action." (Satyam Vada
Dharmachara; regarding law of evidence).

Another is that of 'collective duties,' which include groups of their

members and of the people as a whole. The duty concept supplied
ethical justifications and rational factors to the legal system. Values of
distributive justice, welfare and equal liberties of all were to be
visualised and effectuated with such an approach. They emerged as
social virtue supported by moral philosophy.

In those times, theme of superiority of collectivism over individualism

had also been established in its hold in the field of endowments. Istha
and Purtha are the two types of endowments. While the former
included dedication for the purpose of regular conducting of specific
religious ceremonies of personal character, the latter comprehended
dedication of stepwells, wells, ponds, temples of gods, distribution of
food, provision of shelter, hospitals and educational institutions.
(Manu, Vol. IV, P. 226-27). Manu states, "Let him without tiring always
offer sacrifices (ishta) and perform works of charity (purta) with faith;
for offerings and charitable works made with faith and with lawfully
obtained money procure endless rewards.

In conclusion, Adherence to the supremacy of Sruti (Vedas, Upanishads

and Brahmanas) was the basic principle with which interpretation
started. Smriti, which constituted a detailed code of conduct, was the
second layer of legal source, which comprehensibly dealt with the
conduct (achara), civilian actions (vyavahara) and penance
(prayaschitta) to provide a coherent system. The Vijnanesvara resolves
the inter-text conflict, "In case of conflict between two Smritis,
reasoning (nyaya) guided by the practices of the past has more force."
Thus, mechanism to adjust with social practice is a creative device to
coordinate the wavelength of the two.

Regarding solution to diverse approaches about permissibility of

consanguineous marriages, Parasara Madhaviya finds recourse to social
practice as to local customs. Prevalence of different juridical systems in
different areas based on local customs. According to Brihaspati these
customs should be kept intact lest the public revolt against the state
(11-2.8). Tendency amidst castes to abide by shatric rules in order to
establish their ascendancy and credibility began to remove orthodox
usages from the domain of custom as less pure. This oral tradition kept
pace with progress in manners and culture with the evolution of
opinions. Another method of bridging the gap between law and custom
was by treating aberrant regional practices as those, which would be
incurring neither penance nor secular punishment.
Another socio-religious institution was Yagna, the ritual of sacrifice that
brought men, their ancestors and gods into intimate relationship.
Behind the yagna was the spirit of sacrifice. Every human is to offer his
precious possessions (greed, fear, anger, hatred, and ego) to the
Cosmic Law releasing creative energy that can be used for productive
purposes. If performed in true spirit it was a means of bringing about
the unity of gods and men to secure desired ends, but was a means to
secure lasting creation. The ordinances according to the yagna were
prescribed by Rita, the Eternal Law, which upheld the Cosmic Order.
Rita was all pervading, omnipresent from whom creation sprang and by
which life was regulated. Everyone, Gods included had to conform to its
ordinances. It was independent of gods and men. The gods were its
guardians; they were mighty because of it. Rita was not merely the
source of strength but also of beauty. Ushas the goddess of dawn was
beautiful because she was true to Rita. One could taste immortality
only on the lofty heights of Rita.

Satya was that aspect of Rita that gave conduct the power to yield
desired results. It produced results only when complete accord
between thought, word and deed of an individual. When men prayed
to God, their blessings had to be satya ie true to expectations.

Tapas Yagna could be fruitful only if it is performed with the spirit of

sacrifice or Tapas. This meant offering of life through prayer to the gods
in order to conform to Rita. Tapas is self- discipline for attaining purity
of mind and body. Scorning human comforts, it gives self-control to
man. It transforms weaknesses into strength and inspiration.
Sublimation of the ego releases energy which can be used positively.
Therefore, the central idea underlying Indian culture is Rita, the cosmic
order that is one and indivisible, operating in spiritual and moral fields.
It governs and regulates life and its evolution. It is Divinity represented
by a God. The manifestations of Rita have many aspects, its
fundamental values being Satya, Yajna, and Tapas.

However, the post Vedic period gave a new shape to Rita, Satya, Yajna
and Tapas.

First, the Cosmic Order, Rita, had a new form i.e. the Supreme-
Ishawara or Brahman, pervading and moving all that and as Reality
standing above all that is and that is not. In simple language it means,
from believing that the cosmic order was the mother of all creation, we
started believing that there was a Supreme i.e. God who was
responsible for all that is and that is not.

Secondly, the cosmic order in one of its aspects is the Law of Evolution.
By it the supreme self passes on from lower things to higher things till
he reaches realization i.e. man’s attaining conscious oneness with it. In
human beings it works through three important laws i.e. law of karma,
law of moral causation and yoga.

According to the Law of Karma, the atman or soul passes from birth to
birth on its way to realization. The Law of Causation is an elaboration
of the yagna (one of the Aryan socio-religious institutions) aspect of
Rita. Through it is possible for man to reduce the number of times he is
reborn by offering up his ego and by taking vows of non-violence, truth,
non-possession amongst others.

Socio-legal reforms in medieval India:

-Social order and Dawn of the Mohammedan conquest: At the dawn of
Mohammedan conquests, Indian society had evolved a satisfactory and
inspiring legal order with an orientation towards social justice as
discussed earlier. But deviating from the pristine values and theoretic
attainments of classical jurisprudence, at the social level distortions
started because of patriarchy and caste considerations. Untouchability
was widely practiced by forward castes, and even came to be
recognised in commentaries. Female's social position got seriously
deteriorated. Slavery was a recognised institution in the background of
growing, indebtedness, increase in crimes and discrimination against
tribals. Devadasi system was regular social practice. By the custom of
kulinism, poor husband of higher caste status earned his living through
the practice of dowry and polygamy. Female infanticide had been
commenced. Castes, guilds and panchayats used to exercise power.

Attempts to bring about social change through the intervention by

Muslim Rulers and those preached by the bhakti saints were
undertaken in the form of policies by the former and the bhakti
movement by the latter. Child marriage was a rigid and coercive
custom, Emperor Akbar reacted to this situation and considered that
consent was paramount and thus he enhanced the marriageable age
and enforced this rule strictly. (boys 16 and girls 14). He also wrestled
against the dowry system and appointed two sensible men called as
masters of marriage to look into the circumstances of a bride and
bridegroom.

Akbar was bold enough to go against the views of ulemas in

pronouncing an order that a man of ordinary means shall not possess
more than one wife unless the first proved to be barren. Akbar
deprecated the evil prevalent amidst Muslims to allow young men to
marry old women, and declared such marriages as illegal if the age
difference was more than -12 years. However, Akbar did not favour
inter-caste marriages, in anticipation of good progeny. He also
supported the practice of purdah system.

The custom of sati was in vogue during the medieval times and among
the upper class Hindus it came to be a voluntary practice. The
Muhammedan ruler, Muhammedbin-Tughluq placed restrictions on
this, if it was against the will of the widow. During Humayuns time
officers were kept in charge to oversee this custom. Emperor Akbar did
the same by appointing kotwals to oversee.

With regard to Courts, under Muslim rule, the judicial system remained
a plural one. Muslim populations were governed by Muslim law in
criminal, civil and family matters and disputes settled before royal
courts established in cities and administrative centres. Hindus were
generally governed by their own tribunals in civil matters. When such
matters came before royal courts, Hindu law was applied and sustained
by the sanctions of the State. While there was a hierarchy of courts and
rights of appeal, there was no supervision of lower courts. No attempt
was made to control the administration of law in the villages.

Law and social transformation in modern India.

The emergence of British rule in India: had far reaching effect upon law,
culture and society with both negative and positive consequences. The
introduction of "justice, equity and good conscience" as residuary
source of law had enabled a backdoor entry of English Law. Marc
Galanter regards the development as "expropriation of law by the
government, which initiated displacement of traditional law in modern
India, in the place of natural growth of indigenous law". ( Marc
Galanter, Law and society in Modern India, P. 17).

The Administration of Colonial Law was the task of the British, in an

effort to establish the rule of a unified positive system. Colonial
administrators could not conceptually or administratively hold together
the three interconnected planes of moral order, royal decree and local
law-ways. English law rests on a fundamentally different foundation -
on the primacy of written law, on statute or positive law. All other
sources of law - case-law, legal doctrine, jurisprudence, custom - are
only subsidiary to it, even if they play a role in the ‘discovery’ of law by
contributing to the interpretation of statutory provisions. Primacy
belongs always to positive law, particularly statute.

While the existence and importance of custom was recognized, its

validity and authority was subjected to English notions of jurisprudence
and political economy. However, English law, by reason of its
fundamental difference in doctrinal foundation, perceived custom
through the eyes of law, through the notion of “legality”, rather than
the notion of “authority” which underlies Indian legal tradition. Thus,
custom, even if it had been a source of law, had to be sanctified by
statute declared by the State. The judiciary was bound to assess the
‘legality’ of a custom, besides its justness. In other words, custom has
no existence outside statute law. It had to be discovered and asserted,
case by individual case before courts.

Process of Change from the Traditional to the Modern: The first stage,
which constituted a period of ‘initial exploration’, dated from Warren
Hastings’ organization of a system of courts for the hinterland of Bengal
in 1772. There was a general expansion of government’s judicial
functions. Simultaneously, there was a decline in the functioning of
other tribunals. Authoritative texts of law to be used in government
courts were isolated and legislation initiated. This stage continued until
the take over of the Indian administration by the Crown.

Between the period 1860 and 1950, there was extensive codification
and expansion of the system of courts. Sources of law became more
fixed and legislation became the dominant mode of modifying the law.

After 1950, there was further consolidation of the law and the
development of a unified judicial system over the whole of India.

Assuming the existence of a body of law comparable to their own, the

British in their early years of rule attempted to apply indigenous law.
However, there was no ‘single system of law, no fixed authoritative
body of law, no set of binding precedents, no single legitimate way of
applying or changing the law’. The main departments of law with which
the British were immediately concerned were family law, whether
Hindu or Muslim, land law (proprietary, tenancy, fiscal etc.) and
adjective law (law of procedures and evidence).
Thus, the transformation of indigenous law, whether for better or
worse, took place through several means. First, the search for
indigenous law in authoritative textual material had its own impact. The
British patronage to write digests and translations of sastra was a
logical consequence of the Hastings. Several Englishmen translated and
wrote new digests which added to the understanding of the Hindu
Sastra. Also the prevalence of different schools of law in different parts
of India and flexibility in interpretation by digest writers had
accommodated spaces for informal change. Deduction of law in a most
artificial and remote manner deviating from the original intention in the
text took place.

Second, custom as an important source of law took a backseat because

of the British court's insistence on strict standard of proof about local
customs. Sometimes, the character of the custom was changed in the
course of recording.

Thirdly, the courts consultation with pundits and maulvis was not
always helpful in identifying the true law and it contributed in distorting
the law. Thus the post of law officers was abolished in 1865 and sastric
law like customary law became rigid and archaic.

Fourth, "justice, equity and good conscience" was a lasting source of

law, gave the courts the opportunity to fill the gap by importation of
English rules. No attempt was made to find and apply Hindu rules of
interpretation in the course of applying this residuary source. The
impact of the residuary source was such that the sastra texts have lost
their authority.

Fifth, reluctance of courts to depart from the established lines of

decisions under the influence of stare decisis had also obstructed
innovative judgments.

In addition, Customs occupied a very important place in modern India,

and were recognized by Parliament and the Indian legislatures as
valuable in the administration of law and justice.

-Several Regulations and Acts between 1753 to 1935 reserved a legal

space for custom:
1.The Charter of the Mayor’s Court in Bombay in 1753 reserved laws
and
customs to natives resident in the Company’s territories in India.

2. The preamble to 21 Geo.111 (Chap.70) of 1781 reserved to

inhabitants of Bengal, Bihar and Orissa all their laws, usages, rights and
privileges. The same Act provided that all suits and actions regarding
inheritance, succession to lands, rents and goods and all matters of
contract were to be decided between Mohammedans by
Mohammedan law, between Hindus by Hindu laws and usages, and
when only one of the party was a Mohammedan or a Hindu, by the law
of the defendant.

3. By Sec. 10, 37 Geo 111, Chap.142, of 1796 , Recorder’s Courts were

established at Madras and Bombay, and a provision similar to (2) above
was incorporated by section 13.

4. The Bombay Regulation IV of 1827 provided that in the trial of suits,

in the absence of Acts of Parliament and Regulations of Government,
the usages of the country in which the suit arose was to be applied; and
if there were none such, the law of the defendant, and in the absence
of specific law and usage, justice, equity and good conscience alone
was to be observed.

5. The High Court’s Act of 1861 provided that in matters of inheritance

and succession and in other matters specified, the High Courts to be
established were also bound to decide according to usages, as much as
the Supreme Courts were bound.

6. The Government of India Act of 1915, by section 112, provided that

the High Courts at Calcutta, Madras and Bombay shall, in matters of
inheritance and succession to lands, rents and goods and in matters of
contract and dealing between party and party, decide according to the
personal law or custom having the force of law to which the parties are
subject.

7. The Government of India Act of 1935 (section 223) preserved intact

the operation of section 112 of the GOI Act of 1915.
Besides these Acts, other miscellaneous legislation - such as Punjab
Laws Act IV of 1872, the Madras Civil Courts Act III of 1873 Burma
Courts Act XVII of 1875, Central Provinces Laws Act XX of 1875, the
Oudh Laws Act XVIII of 1876, the Bengal, North- West Provinces and
Assam Civil Courts Act (XII) of 1887 - also provided that custom shall
form the rule of decision in certain matters affecting Hindus and
Mohammedans. These matters included succession, inheritance,
marriage, caste, religious usage etc.

All these Acts provided that custom will be the rule of decision "unless
it is opposed to justice, equity and good conscience or unless it has
been abolished or altered by a legislative enactment"

-Codification of Laws: Work on codification of laws progressed along

with the centralization of law-making. The process was as follows:
· In 1833, a single legislature for the whole of India was established at
Calcutta with power of legislation over the whole of British India, with
authority not only over Indians but also over Europeans. The aim was to
evolve a code of law common to all Indian ethnic and religious
identities.
· In 1837, a draft Penal code was prepared by Macaulay.
· Upto 1860, the law that was applied was varied. Parliamentary
charters and Acts, Indian legislation, Company Regulations, English
Common Law, ecclesiastical and admiralty law, Hindu law, Muslim Law
and many bodies of customary law. After 1858, the next twenty five
years constituted the major period of codification of law and
consolidation of courts.
· The Charter Act of 1853 authorized the Queen to appoint a Law
Commission in England, which would propose appropriate enactments
for India, thus taking away legislative initiative from Calcutta. Before
the Law Commission resigned in 1870 and returned legislative function
to the Indian Government, much work was done on a body of
substantive civil law based on English law to be enacted in a simplified
manner to suit Indian conditions. A series of codes were prepared and
passed into law.
· A revised version of Macaulay’s draft Penal Code was enacted in 1860.

· In 1859 and 1861 respectively, a Code of Civil Procedure and a Code of

Criminal Procedure were enacted.

· This was followed by the Succession Act of 1865.

· In 1872, The Contract Act was passed.

-Social Evils present In Ancient India.

FEMALE INFANTICIDE

Female infanticide arose from the general Vedic attitude towards

women. The large dowries prescribed by the Vedas (see the section of
dowries below) meant that a girl was seen as a burden. The woman
who gave birth to a daughter was ashamed, and much stigma attached
to a lady who only gave birth to daughters. Hence infanticide arose as a
convenient way of getting rid of the burden.Holy Aryan texts sanction
this custom:"Tasmat striyam jatam parasyanti ut pumamsam haranti" "
Hence they rejet a female child when born, and take up a male." -- [
Taitt. Samh. VI.5.10.3 ] [ Muir I 26 ]

When the British first discovered female infanticide in India in 1789,

Jonathan Duncan the resident in Benares province was asked by the
Bengal council to settle the revenues in the province acquired by the
raja of Benares. Duncan found during his tour for settling the revenues,
that the Rajkumar rajputs in Jaunpur district destroyed their female
children. Duncan immediately informed Lord Cornwallis the then
governor-general of British Indian about his discovery. A few years later
in 1794. Sir John Shore informed the Asiatic Society of Bengal of
Duncan's discovery. In 1795, Duncan was appointed governor of
Bombay. He visited Surat in 1800 and was informed during his visit by a
minister of the Nawab of Surat that the Jadeja rajputs of peninsular
Gujarat in Kathiawad (now Saurashtra) and Kutch killed their female
children. Thereafter, the British discovered female infanticide in various
parts of north and west India. The castes, which resorted to the
practice in the 19th century, according to reports of British officials,
included: rajputs, jats, ahirs, gujars, khutris and moyal Brahmins in
north India. In western India, the only other caste besides the rajputs of
peninsular Gujarat who practiced female infanticide according to the
information in the records, were the lewa patidars and kanbis of
mainland Gujarat. These castes were dominant at the local level in
different parts of north and west India.

From the date of first discovery of the practice by the British (1789) till
the passing of the Female Infanticide Act in March 1870 by the
Viceroy’s Council, female infanticide was the subject of elaborate
correspondence and reports. These reports form part of several
volumes of published and unpublished records in the archives. They tell
us about the methods and strategies adopted by the British rulers to
stop female infanticide and we also get information on the social
institutions related to female infanticide.

The British colonial administration did not have a uniform policy for
suppressing infanticide in the late 18th and 19th century. Since the
practice was found to be prevalent among some land-owing Hindu
castes, the British first employed the injunction against female
infanticide in Hindu sacred literature to suppress the practice.

For south India, the reference to female infanticide among the todas of
Nilgiri hills by rivers and the recent revelations of the practice among
the kallar of Usilampatti taluk. Madurai district and among the goundar
of North Arcot Ambedkar district show that south India was not a
female infanticide free zone as some scholars suggest. In fact Edgar
Thurston refers to female infanticide among the Kallar even in the last
century. Since dowry was not so widespread in south India during the
19th century, it is possible that fewer castes practised female
infanticide in the south compared to the north. The British do not seem
to have made any effort to suppress female infanticide in south India.

Lord Elphinstone followed Lord Duncan's orientalism so far as

administration of justice for the native subject was concerned. During
his governorship a code of laws known as the Elphinstone Code was
passed. This code provided that the native subjects will have the
"benefit of the laws of their religion" which meant application by law
courts of Koranic law for Muslims and Shastric law for Hindus.

British officials and also missionaries wrote and published accounts of

female infanticide. For example, Charles Raikes who as magistrate of
Manipuri district was actively involved in suppression of female
infanticide in that district wrote about the practice in his `Notes on the
North-Western Provinces of India', first published in the Benaras
Magazine in 1852 and later this was published in book form in the same
year. Raikes work was followed a few years later by the publication in
1855 of a fulllength monograph on female infanticide by the
missionary; Rev John Wilson entitled ‘History of the Suppression of
Infanticide in Western India’. Based on the Bombay government's
records. Wilson's book dealt mainly with jadeja female infanticide.

CHILD-MARRIAGE

Child marriage of daughters 5-6 yrs old was common due to the custom
of dowry and to avoid scandals. Lawbooks prescribe that the best
partner for a man in one-third his age. Thus a man 18 year old should
marry a girl 6 years old -" A man, aged thirty years, shall marry a
maiden of twelve who pleases him, or a man of twenty-four a girl of
eight years of age; if (the performance of) his duties would otherwise
be impeded, he must marry sooner." [ Manu IX.94 ]

Narada states that some of the defects to be avoided in brides are if

they already had a relationship with another man or have their minds
set on another, they should not be selected [Sheth 67].

Child Marriage Restraint Act 1929 popularly known as the Sarda Act
after its sponsor Rai Sahib Harbilas Sarda to the British India Legislature
in India was passed on 28 September 1929, fixed the age of marriage
for girls at 14 years and boys at 18 years. It came into effect six months
later on April 1, 1930 and it applies to all of British India, not just to
Hindus. It was a result of social reform movement in India. The
legislation was passed by the British Indian Government.

BURNING OF WOMEN

Bride-Burning: This is often related to dowry, when the bride's family

cannot pay up to the amount demanded by the in-laws. Often the in-
laws make demands in excess of those made at the time of marriage.
When the deadline specified runs out, the bride is burned in often
gruesome fashions. At least 5000 women die each year for not bringing
in enough dowry. At least a dozen women die each day in `kitchen
fires', which are often passed off as accidents, because their in-laws are
not satisfied with their dowries. Only a few of the murderers are
brought to justice. [Kitchen 1997]

Wife-Burning: An Aryan husband could at any time accuse his wife of

infidelity. In case the wife protests her innocence, the council of village
elders would then order an ordeal by fire. The accused wife would be
required to pass through a blazing flame. Not just death, but any signs
of burns would be taken as a sign of guilt and the wife would then have
to undergo the penalty for infidelity. Adultery carries the death
sentence in Aryan law, so either way she would have to pay with her
life for her husband's or elders' mere suspicions.

Jauhar - Variant of Sati: Jauhar refers to the practice of the mass

burning of all the wives and daughters in an entire town/district to
prevent them from falling into the hands of the enemies. Often the
husbands forced their unwilling spouses, sometimes the women
practiced it themselves, encouraged by the elders. It is merely a variant
of sati, since it occurred in anticipation of the womens' widowhood.
Witch-Burning: The burning of witches during the Vedic Dark Ages of
Indian History ( 1500 BC - 500 BC ) and the later Puranic Dark Ages ( 100
AD-1000 AD ) makes the European Medieval ecclesiastical witch-hunts
pale in comparison.

Widow-Burning (Sati): The Aryans, upon their invasion of India ca. 1500
B.C. introduced the horrific custom of sati, i.e. the burning of a woman
after the death of her husband. When performed singly it is referred to
as sati, when performed en masse by all the women and daughters of a
town in anticipation of their widowhood (eg. when the men were to
fight a battle against all odds), it is known as jauhar. It is sanctioned by
their most sacred texts, and was practiced from the fall of the Semito-
Dravidian Indus Valley civilization to the modern age.

Scriptural Sanction of Sati: The most sacred of Aryan scriptures are the
Vedas, and the Rig Veda, the oldest veda, first mentions the custom of
sati. The following famous `Sati Hymn' of the Rig Veda was (and still is)
recited during the actual immolation of the widow [Kane 199-200]: -

“Let these women, whose husbands are worthy and are living, enter
the house with ghee (applied) as corrylium ( to their eyes). Let these
wives first step into the pyre, tearless without any affliction and well
adorned." -- [ Rig Veda X.18.7 ] [ Kane 199-200 ]

In recent times some Aryan apologists have arisen who try to prove
that this verse does not sanction sati. This concept arises from a
mistaken reading of the word agne or agneh , which they believe is agre
. This is a wrong interpretation, and other evidence exists that the
Aryans definitely practiced Sati from the earliest times. They distorted
this verse which directs the widow to enter the pyre (agneh) so as to
mean that the wife was to rise from her pyre and go to the front (agre).
In addition to these examples, ancient Aryan scripture encourages sati.
The Garudapurana favourably mentions the immolation of a widow on
the funeral pyre, and states that women of all castes, even the Candalla
woman, must perform Sati. The only exceptions allowed by this
benevolent author are for pregnant women or those who have young
children. If women do not perform sati, then they will be reborn into
the lowly body of a woman again and again till they perform Sati. [
Garudapurana II.4.91-100 ] [ Kane 237 ] According to Vasishta's Padma-
Purana, a woman must, on the death of her husband, allow herself to
be burnt alive on the same funeral pyre [ Abbe DuBois 345 ]. The
Vishnusmirti gives two choices for the widow: "If a woman's husband
dies, let her lead a life of chastity, or else mount his pyre" -- [
Vishnusmrti xxv.14 ] [ Clayton 13 ]

Brahma is one of the main Aryan gods, being the creator of the world (
later he was identified as an incarnation of Vishnu ). One of the Puranas
is named after him, the Brahma Purana. Like other Puranas, it was
composed after the Vedas ( Pandits hold 4000 B.C., Indologists 700
B.C.) This scripture also sanctions sati: " It is the highest duty of the
woman to immolate herself after her husband ", -- [ Br.P. 80.75 ] [
Sheth 103 ]

Long life is promised to the sati: " She [ the sati ] lives with her husband
in heaven for as many years as there are pores in the human body, ie.
for 35 million years. " -- [ Br.P. 80.76, 80.77 ] [ Sheth 103 ]

Vishnu Dharmasutra XXV.14 contains the statement: "On her husband's

death, the widow should observe celibacy or should ascend the funeral
pyre after him".

Aryan Sati Goddesses--The Arya origin of sati is evident from the fact
that several Aryan ladies and `goddesses' performed sati : Several of
Krishna's wives performed sati upon his death, including Rukmini,
Rohini, Devaki, Bhadraa and Madura [ M.Bh. Mausalaparvan 7.18 ] [
Alld.Ch. 977, 1018-1019: Rukmini ] Madri, second wife of Pandu,
considered an incarnation of the goddess Dhriti, performed sati [ M.Bh.
Adiparvan 95.65 ] [ Alld Ch 985 ]Rohini, a wife of Vasudev, Krishna's
father, who gave birth to Balram ( Devki's child ) and later became a
sati. [ Alld. Ch. 1018 ] " The 8 queens of Krishna, who have been named,
with Rukmini at their head, embraced the body of Hari, and entered the
funeral fire. Revati also embracing the corpse of Rama, entered the
blazing pile, which was cool to her, happy in contact with her lord.
Hearing these events, Ugrasena and Anakadundubhi, with Devaki and
Rohini, committed themselves to the flames." -- [ Vishnu Pur. 5.38 ] [
Vishnu Pur. p.481 ]

The earliest recorded historical instance of sati is that of the wife of the
Hindu general Keteus, who died in 316 B.C. while fighting against
Antigonos. Both his wives were eager to perform sati, but as the elder
one was with child, only the younger one alone was allowed to carry
out her wish.' The sati was customary for the widows of Kshatriyas in
the end of the first century BC [ Strabo XV.ch.700.30 ] [ Harper 273 ].
Sati was performed by all the Aryan races, for it is recorded that the
Germanic tribes used to immolate the widows of chieftain to
accompany the husband to Valhalla [ Harper 273 ] [ Davidson 150 ].

Mughal period (1526–1858)

Although the Mughals interfered little with local customs, they seemed
intent on stopping Sati. The emperor Humayun tried, but withdrew a
royal fiat against Sati. Akbar (1542–1605) had issued general orders
prohibiting sati and insisted that no woman could commit Sati without
the specific permission of his Chief police officers. They were instructed
to delay the woman's decision for as long as possible. Pensions, gifts
and rehabilitative help were offered to the potential Sati to wean her
away from committing the act. Children were strictly forbidden from
the practice. Tavernier, writing in the reign of Shah Jahan, observed
that widows with children were not allowed in any circumstances to
burn, and that in other cases governors did not readily give permission,
but could be bribed to do so.

The strongest attempts under the Mughals to control it were made by

the emperor Aurangzeb. In December 1663, he issued an "order that in
all lands under Mughal control, never again should the officials allow a
woman to be burnt". Although the possibility of an evasion of
government orders through payment of bribes existed, later European
travellers record that by the end of Aurangzeb’s reign, sati was much
abated and very rare, except by some Rajah’s wives.

By the end of the 18th century, the practice had been banned in
territories held by some European powers. The Portuguese banned the
practice in Goa by about 1515, though it is not believed to have been
especially prevalent there. The Dutch and the French also banned it in
Chinsurah and Pondicherry. The British who by then ruled much of the
subcontinent, and the Danes, who held the small territories of
Tranquebar and Serampore, permitted it until the 19th century.

The British, following the example of the early Moghuls, for a while
tried to regulate it by requiring that it be carried out in the presence of
their officials and strictly according to custom Attempts to limit or ban
the practice had been made by individual British officers in the 18th
century, but without the backing of the British East India Company. The
first formal British ban was imposed in 1798, in the city of Calcutta only.
The practice continued in surrounding regions. Toward the end of the
18th century, the evangelical church in Britain, and its members in
India, started campaigns against sati. Leaders of these campaigns
included William Carey and William Wilberforce, and both appeared to
be motivated by their love for the Indian people and their desire to
introduce Indians to Christianity. These movements put pressure on the
company to ban the act, and the Bengal Presidency started collecting
figures on the practice in 1813.

The leader of the burgeoning Swaminarayan sect, Sahajanand Swami,

was influential in the eventual eradication of sati. He argued that the
practice had no Vedic standing and only God could take a life he had
given. He also argued that widows could lead a life that would
eventually lead to salvation. Governor Malcolm supported Sahajanand
in this endeavour, whose domino effect led to other social reforms.

From about 1812, the Bengali reformer Raja Rammohan Roy started his
own campaign against the practice. He was motivated by the
experience of seeing his own sister-in-law being forced to commit sati.
Among his actions, he visited Calcutta cremation grounds to persuade
widows not to so die, formed watch groups to do the same, and wrote
and disseminated articles to show that it was not required by scripture.

On 4 December 1829, the practice was formally banned in the Bengal

Presidency lands, by the then governor, Lord William Bentinck. The ban
was challenged in the courts, and the matter went to the Privy Council
in London, but was upheld in 1832. Other company territories also
banned it shortly after. Although the original ban in Bengal was fairly
uncompromising, later in the century British laws include provisions
that provided mitigation for murder when "the person whose death is
caused, being above the age of 18 years, suffers death or takes the risk
of death with his own consent".
Sati remained legal in some princely states for a time after it had been
abolished in lands under British control. Jaipur banned the practice in
1846. Nepal continued to practice Sati well into the 20th century.

Purdah

Purdah is the practice among some communities of requiring women to

cover their bodies so as to cover their skin and conceal their form. It
imposes restrictions on the mobility of women, it curtails their right to
interact freely and it is a symbol of the subordination of women. It does
not reflect the religious teachings of either Hinduism or Islam, contrary
to common belief, although misconception has occurred due to the
ignorance and prejudices of religious leaders of both faiths.

Devadasis

Devadasi is a religious practice in some parts of southern India, in which

women are "married" to a deity or temple. The ritual was well
established by the 10th century A.D.[22] In the later period, the
illegitimate sexual exploitation of the devadasi's became a norm in
some parts of India.

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Additional Information

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-Religion:

Religious Pluralism and Social Transformation.

India is an abode for many religions. Each religion is a social

phenomenon, and each has its own community. The character and right
of religious observance depends upon the membership of particular
social group. This gives rise to specific collective identity and basis for
group cohesion.

Transformations within the religion occur in the course of social

development due to reformative movements, emergence of alternative
faiths/ rise of new leadership, impact of other cultures and efforts of
modernisation.

The National Commission to review the working of the Constitution has

observed: "More than five decades of experience with the working of
our Constitution and the laws has borne out that democracy in a
meaningful sense depends on a pluralistic ethos permeating the polity.
Our national life must be accommodative of the myriad variegations
that make up the unique mosaic of India's society. The framework of
our many and elaborate structures of government must exemplify the
architecture of an inclusive society and one of the means is to promote
civil society initiatives for inter-religious and social harmony." Religions
give rise to diversity of human identities.

As Amartya Sen observes, "...the main hope of harmony in our troubled

world lies in the plurality of identities, which cut across each other and
work against sharp divisions around one single hardened line of
vehement division that allegedly cannot be resisted. Our shared
humanity gets savagely challenged when our differences are narrowed
into one devised system of uniquely powerful categorisation."
(Amartya Sen- Identity and violence: The Illusion of Destiny, at pp. 16-
17. )

Is religion a divisive or synthesising factor?

Religion is a concept difficult for definition and accurate identification.
It involves a system of thought, devotion to a cause, a spiritual
adventure through which we transform our personality in the process
of participating in the ultimate mystery of the world; it goes beyond
mere doctrinal conformity and ceremonial piety. (S. Radhakrishnan,
Towards a new world, at p. 49.)

The Supreme Court in Commr., Hindu Religious Endowments V.

Laxmindra Thirtha Swaminar of Shirur Mutt (AIR 1954 SC 282) has
defined religion to mean a system of beliefs or doctrines which is
regarded by those who profess that religion as conducive to their
spiritual wellbeing; it does not merely mean an opinion, doctrine or
belief but also has an outward expression in acts. The social dimension
of religion is worth considering for our purpose.

According to Max Weber, religion responds to the human need for

dealing with the question of how the extraordinary power of a divine
god may be reconciled with the imperfection of the world that he has
created and rules over; and seeks answers that provide opportunities
for salvation—relief from suffering, and reassuring meaning. It is
playing on the sentiments of people that makes religion the heart of
heartless world, the spirit of the spiritless condition and the opium of
masses, as Karl Marx viewed. (Sociology Of Religion).

As viewed by a member of Constituent Assembly, "it is not religion that

is the source of trouble, but it is misunderstanding of religion that is the
source of trouble". But with a sense of tolerance and rational
application of essential social morals bereft of fear psychosis, such
consequence can be avoided as the major thrust of Indian experience
teaches that, Religion becomes a divisive factor only with the working
of negative Tendencies.

Thus, It is clear that multiplicity of religions by itself is not an

obstruction to social progress.

Radcliffe Brown and M.N. Srinivas consider that rituals perform the
social function of regulating, maintaining and transmitting from one
generation to another generation intricate social sentiments on which
the constitution of society depends. (Study Of Coorg Village (1954),
Religion In India, At p.6. ).

According to D.E. Smith, a secular state is a state which guarantees

individual and corporate freedom of religion, deals with the individual
as a citizen irrespective of his religion, is not constitutionally connected
to a particular religion nor does it seek either to promote or interfere
with religion." (D E Smith, 'India As A Secular State' at P. 4).

S.Radhakrishnan observed "Religion as an inward transformation, as a

spiritual change, as the overcoming of the discords within our own
nature that has been the fundamental feature of it from the beginning
of our history. (S. Radhakrishnan, 'Towards A New World' at P.65.)

- Historical background

An attitude of objectivity, humanism, co-existence and toleration

permeated the secular spirit of ancient Indian thoughts.

A distinctive openness is exhibited in Rigveda which stated, "Truth is

one, the learned may describe it variously." It considers all human
beings as parts of universal soul and preaches individual equality as a
forerunner of religious equality.
It is stated in Atharveda, "This Earth, which accommodates peoples of
different persuasions and languages, as in a peaceful home, may it
benefit all of us." (Prithvi Sukta in Atharveda).

-Conclusion.

Religions wield overwhelming influence on the social and individual life

in traditional societies as that of India, and often overemphasise
customary beliefs, thereby retarding or hindering modernisation, thus
the question of bringing or concretising social transformation with the
help of law faces practical difficulties.

Language:

Literary records suggest India had interacted in languages of other

ancient civilizations. This inscription is from Indian emperor Ashoka,
carved in stone about 250 BCE, found in Afghanistan. Inscriptions are in
Greek and Aramaic, with ideas of non-violence against men and all
living beings, as the doctrine of Eusebeia - spiritual maturity.

The Sanskrit language, whatever be its antiquity, is of a wonderful

structure; more perfect than the Greek, more copious than the Latin,
and more exquisitely refined than either, yet bearing to both of them a
stronger affinity, both in the roots of verbs and the forms of grammar,
than could possibly have been produced by accident; so strong indeed,
that no philologer could examine them all three, without believing
them to have sprung from some common source, which, perhaps, no
longer exists; there is a similar reason, though not quite so forcible, for
supposing that both the Gothic and the Celtic, though blended with a
very different idiom, had the same origin with the Sanskrit.
The Rigvedic Sanskrit is one of the oldest attestations of any Indo-Aryan
language, and one of the earliest attested members of the Indo-
European language family. The discovery of Sanskrit by early European
explorers of India led to the development of comparative Philology. The
scholars of 18th century were struck by the far reaching similarity of
Sanskrit, both in grammar and vocabulary, to the classical languages of
Europe. Intensive scientific studies that followed have established that
Sanskrit and many Indian derivative languages belong to the family
which includes English, German, French, Italian, Spanish, Celtic, Greek,
Baltic, Armenian, Persian, Tocharian and other Indo-European
languages.

The evolution of language within India may be distinguished over three

periods: old, middle and modern Indo-Aryan. The classical form of old
Indo-Aryan was Samskrta meaning polished, cultivated and correct
(much like proper English), in distinction to Prakrta - the practical
language of the migrating masses evolving without concern to proper
pronunciation or grammar, the structure of language changing as those
masses mingled, settled new lands and adopted words from people of
other native languages. Prakrta became middle Indo-Aryan leading to
Pali (the language of early Buddhists and Ashoka era in 200-300 BC),
Prakrit (the language of Jain philosophers) and Apabhramsa (the
language blend at the final stage of middle Indo-Aryan). It is
Apabhramsa, scholar’s claim that flowered into Hindi, Gujarati, Begali,
Marathi, Punjabi and many other languages now in use in India's north,
east and west. All of these Indian languages have roots and structure
similar to Sanskrit, to each other and to other Indo-European
languages. Thus we have in India three thousand years of continuous
linguistic history recorded and preserved in literary documents. This
enables scholars to follow language evolution and observe how, by
changes hardly noticeable from generation to generation, an original
language alters into descendant languages that are now barely
recognizable as the same.

Sanskrit has had a profound impact on the languages and literature of

India. Hindi, India's most spoken language is a "Sanskritized register" of
the Khariboli dialect. In addition, all modern Indo-Aryan languages,
Munda languages and Dravidian languages, have borrowed many words
either directly from Sanskrit (tatsama words), or indirectly via middle
Indo-Aryan languages (tadbhava words). Words originating in Sanskrit
are estimated to constitute roughly fifty percent of the vocabulary of
modern Indo-Aryan languages, and the literary forms of (Dravidian)
Telugu, Malayalam and Kannada. Part of the Eastern Indo-Aryan
languages, the Bengali language arose from the eastern Middle Indic
languages and its roots are traced to the 5th century BC Ardhamagadhi
language.

Tamil, one of India's major classical languages, descends from Proto-

Dravidian languages which was spoken around the third millennium BC
in peninsular India. Tamil literature has existed for over two thousand
years and the earliest epigraphic records found date from around the
third century BC.

Another major Classical Dravidian language, Kannada is attested

epigraphically from the mid-1st millennium AD, and literary Old
Kannada flourished in the 9th to 10th century Rashtrakuta Dynasty. As
a spoken language, some believe it to be even older than Tamil due to
the existence of words which have more primitive forms than in Tamil.
Pre-old Kannada (or Purava HazheGannada) was the language of
Banavasi in the early Common Era, the Satavahana and Kadamba
periods and hence has a history of over 2000 years The Ashoka rock
edict found at Brahmagiri (dated to 230 BC) has been suggested to
contain a word in identifiable Kannada.

In addition to Indo-European and Dravidian languages, Austro-Asiatic

and Tibeto-Burman languages are in use in India. Genomic studies of
ethnic groups in India suggest the Austro-Asiatic tribals were likely the
earliest settlers in India. India's language and cultural fusion is not only
because of large migrations of Indo-Aryans from central Asia and west
Eurasia through the northwest, the genome studies suggest a major
wave of humans possibly entered India, long ago, through the
northeast, along with tribal populations of Tibeto-Burman origins.
However, genome studies of Fst distances suggest northeastern
Himalayas acted as a barrier, in recent 5000 years, to human migration
as well as to admixing. Languages spoken in this part of India include
Austro-Asiatic (e.g. Khasi) and Tibeto-Burman (e.g. Nishi).

According to 2001 India census, Hindi is the most spoken language in

India, followed by Bengali, Telugu, Marathi, Tamil and Urdu. In
contemporary Indian literature, there are two major literary awards;
these are the Sahitya Akademi Fellowship and the Jnanpith Award.
Eight Jnanpith awards have been awarded in Kannada, six in Hindi, five
in Bengali, four in Malayalam, three each in Marathi, Gujarati, Urdu and
Oriya and two each in Assamese, Telugu and Tamil.

Ethnicity:
India’s one billion people have descended from a variety of races. The
oldest ones are the Negroid aboriginals called the Adivasis or First
settlers. Then there are the Dravidians, The Aryans, the Mongols, The
Semites and innumerable inter-mixtures of one with the other.