Towards the end of the 19th century, Indian nationalists began raising the demand for greater Indian participation in legislative and other administrative bodies which impinged on every aspect of their lives. Partly in response to these demands, but also in order to expand the circle of collaborators who would ensure the continued stability of British rule in India, some gradual changes were effected in the system of representation to include more and more Indians. But such concessions were also part of a policy of divide and rule, setting one group off against another through systems of electoral ‘protection’.

Broadening the Circle of Collaborators

Beginning with the Indian Councils Act of 1892, there was a gradual expansion of the inclusion of Indians in local governance. The Indian Councils Act of 1909 following the Minto–Morley Reforms, the Government of India Act of 1919 following the Montagu–Chelmsford Proposals of 1918 and, finally, the Government of India Act of 1935, under which elections were held in the provinces in 1937, were part of a process of constitutional reform which yielded more political space to sections of Indian society. The struggle for legal remedies to the social problems affecting women that was waged throughout the 19th century was given a new meaning in the 20th century when the broader struggle for independence got under way. Complex demands for women's right to the vote on the same terms as men began to be made, as women fought for their right to represent themselves. But interesting and important disagreements emerged between women themselves, and between colonial authorities and nationalist leaders.

It is often pointed out that the mobilization of women in the Indian national movement was unique, with important legacies for their continued involvement in public/political life in South Asia today. It is also claimed that Indian women were granted equal rights to suffrage at the moment of independence without any sustained political struggle.

A punitive law criminalized what had long been acknowledged as ‘tradition’ (sati) ambiguously based on scriptural ‘sanctions’, while another law made the violation of tradition (that is, widow remarriage) legal and permissible, though it undercut custom—and therefore women's rights—in very different ways. Both legislative efforts were in some ways linked to the pernicious consequences of early marriage, hence early widowhood, and an absent or curtailed childhood. But this was also tied to fears about the ‘incorrigible’ sexual appetite of widows, which had resulted in infanticide, which had to be stopped or curtailed. One could argue that the 19th century, usually understood as being about women, was in fact all about the child.

Controlling Female Infanticide

Infanticide, and particularly female infanticide, the British ‘discovered’ in Benares in 1789, had grave consequences for communities as a whole in parts of northern and western India where intervention began at a brisk pace. This led to the passage of the Female Infanticide Prevention Act (or Special Act) of 1870 to curb female infanticide in the Northwest Provinces before it was withdrawn in 1906.

Was the Special Act of 1870 a philanthropic and humanitarian move, an attempt of the colonial regime to gain legitimacy, an invasion of the Hindu home with the intention of controlling it, or an effort aimed at merely pruning the excesses of the patriarchal family? Feminist scholars have also shown how the practice was intimately linked to the transformations of the agrarian structure brought about by colonial rule itself.

This is not to suggest that female infanticide was a creation of British rule. But it was treated as a gender-specific crime quite distinct from infanticide in England. Thus, T. P. Madhav Rao, dewan of Baroda state, demanded an amendment to the IPC but also urged the colonial regime to be very sympathetic to Indian social reality.

A ‘status of Indian women’ report card in the second decade of the new millennium would present a very contradictory picture. Let us start from where most of those reading this book will be: the field of higher education. Although the presence of women in higher educational institutions has reached a very creditable 49 per cent, it is against a broader backdrop of at least 35 per cent female illiteracy, according to the latest All India Survey on Higher Education, 2019–20. No doubt, the demand for education, from primary to high school to college, is growing in leaps and bounds, as women, and sometimes their families, recognize the importance of a greater chance of employability among the educated.

But women's access to the world of paid employment, which ideally opens up fresh avenues of independence and opportunities for self-assertion among women, is ironically in decline: women constituted a mere 21.9 per cent of the above-15 workforce in 2011–12, down from 35 per cent in 1990, and an even sharper decline has been noted in the Periodic Labour Force Survey, 2017–18. Even those women who do work outside the home for wages are systematically lower paid, overwhelmingly concentrated in some sectors (rural and unorganized) and afforded little or no legal protection.

Gender Discrimination in India Today

Even after more than 70 years of independence, therefore, Indian women still face a formidable degree of discrimination in public and private life. The ratio of women to men in India has steadily fallen since 1911, when there were 965 women to every 1,000 men; the most recent census (2011) reveals a slight improvement after a long period of decline, at 943 per 1,000 men. But the child sex ratio (of girls under six) is an alarming 914. A single indicator such as this speaks of sex-selective abortions, the neglect of girl children and criminally negligent maternal health care facilities. In other words, the demographic disparity between the sexes speaks volumes of the systematic, rather than just the episodic or occasional, forms of discrimination against women. In post-independence India, ‘adverse child sex ratios … have become practically synonymous with gender discrimination’.

Recent feminist scholarship allows us to reframe the period of 19th-century ‘social reform’. For one, the extraordinary energy with which the colonial intelligentsia debated questions concerning women—for example, sati (widow immolation), widow remarriage or child marriage—were issues which concerned primarily upper-caste, middle-class women. These concerns cannot be disconnected from each other and from wider changes in the political economy of colonial India, since part of the colonial agenda was the transformation of the household as a unit. But was the Indian family to be seen as a religious unit or as an economic unit? Was it to be understood as space to be defended, an institution to be slightly modernized or a set of relations to be thoroughly recast? These questions wracked debates throughout the 19th century as the family form and conjugality were aligned with the emerging needs of capital.

The Family in Focus

The deindustrialization of India that transformed it from a manufacturing nation into a raw material producer, the assignment of property rights to zamindars that underwrote their feudal powers and reduced the rights of tenants, the development of enclaves of capital in plantations and mines, the active discouragement of industry and the constant effort of the British to widen their circle of indigenous collaborators—all these had profound effects on the family form and produced serious realignments within the family and in gender relations.

The ideology of the patriarchal nuclear family also gained ground through the efforts of colonial administrators, missionaries and educators. The ideal of companionate marriage, for example, increasingly took root amongst educated Indians. Some were therefore willing collaborators in modernizing, if not recasting entirely, gender relations.

From its original base in Bengal, established in 1765, the EIC, through a policy of alliances and wars with indigenous rulers, controlled the subcontinent by 1848. The EIC was, however, a mercantilist company whose presence in India since 1600 was largely prompted by the European need for Indian cotton and silk manufactures. Before 1765, there were few demands in India for the manufactures of Europe, forcing the EIC to pay for its imports in bullion. The military conquest of Bengal in 1757 and the grant of its revenues in 1765 to the EIC dramatically changed its economic fortunes, and turned India into a supplier of ‘western Indian raw cotton, Punjab wheat, Bengal jute, Assam tea, south Indian oilseeds and hides and skins’. The political subjugation of India therefore implied economic subjugation since it was now integrated into an emerging global capitalist network, but as a captive market for the products of Britain. Over 190 years of British rule, the Indian subcontinent was therefore transformed from being a primary exporter of high-quality manufactures to large parts of the world to become a raw-material producer for the Industrial Revolution in England. In addition was the ‘drain of wealth’, which included ‘interest on foreign debt incurred by the East India Company, military expenditure, guaranteed interest on foreign investments in railways, irrigation, road transport and various other infrastructural facilities, the government purchase policy of importing all its stationery from England’. India also paid ‘home charges’—that is, for the secretary of state and his establishment at the India Office in London—and pension and training costs for the civilian and military personnel.

Women in the Colonial Economy

These transformations in the Indian economy profoundly affected the economic fortunes of all women. The dissolution of the traditional bases of the economy and the slow, partial and extremely limited emergence of a ‘modern’ sector in India undermined existing ways of life, exaggerated existing inequalities and cleavages (even within families) and led to absolute impoverishment.

Two developments in the Indian subcontinent since 1986 have highlighted the ways in which women's rights have been poised between community and state. On the one hand are the breakthroughs made by Indian feminism in legal reform, strategic uses of the law and generation of sophisticated understandings of how the law operates or has operated in the past, to both mirror and challenge existing hierarchies. On the other hand has been the meteoric rise, particularly since the 1980s, of the Hindu right which, by often adopting the language of ‘feminism’, has called for a recalibration of earlier feminist demands. The certainties of the immediate pre-independence days and the optimism about the emancipatory outcomes of law reform since 1947 have been radically recast by feminists themselves. Feminists increasingly express caution regarding the imposition of one uniform law for all, since they recognize that uniformity does not promise gender justice. The wariness also arises from the vastly altered political circumstances under which the demand for a uniform civil code is now being made, not necessarily as a tool for ensuring gender justice, but as a weapon with which to target Muslim men (and women).

We start with an observation that remains as true today as when personal law reform was first discussed in the 1920s. Indira Jaising has said:

Marriage and family formed the core of colonial Hindu (as well as other personal) law. Despite its frequent assertions to the contrary, by ‘denominating marriage and family as the primary subjects of religious law, the colonial state both claimed to be attending to the effective significance of these matters for Indians, and also subjected them to state scrutiny and jurisdiction’.

As we have seen, the debates about women's inheritance and marriage laws were brought to the foreground by women themselves as early as the 1930s and climaxed in the passage of the Hindu Code Bills in 1956. The discussion spanned a 15-year period and occurred in three different parliaments: the federal parliament, the provisional parliament and the first elected parliament of India. The debates, both within the legislature/parliament and in the public life of the new nation (for example, in feature films, novels and newspaper debates), about the real and imagined consequences of passing the proposed Hindu code into law, constitute a major milestone in post-independence India. It revealed that entrenched patriarchal interests, despite stating their commitment to women's equality, revealed great hostility to translating these into substantive legal provisions.

Is Uniformity Equal to Gender Justice?

The Constituent Assembly (consisting of 15 women in an assembly of 299), which assured women that they would not be discriminated against on the grounds of sex, nevertheless provided exactly such a possibility in the name of religious freedom, which allowed for the continuance of religion-based personal laws. Although the freedom of religion is strictly subject to the fundamental rights listed in part three of the Indian constitution, and also provides for social reform, it was seen as setting a limit on individual freedoms. B. R. Ambedkar, as a framer of the constitution, protested in vain against the retention of personal laws:

Nothing short of a tectonic shift in feminist legal studies has occurred in the two decades since Women and Law in Colonial India was published in 1996. Where I had, at the end of the introduction to the original edition, lamented that a significant body of legal historical scholarship was yet to take shape, the intervening period has seen the emergence of a very sophisticated set of historical investigations which have uncovered not only new kinds of archives, but suggested innovative ways of interpreting old ones. In part, the scholarship has paralleled the extraordinary visibility of legal institutions and questions of law in determining the contours of gender justice and gender relations more generally. The new scholarship has had the effect of challenging some of the assumptions of the earlier edition, refining many of its enquiries and adding to the insights that it drew on.

The new historical investigations have been prompted in part by developments in three interlocking spheres: first, the concerns, disappointments and engagements of contemporary Indian feminism with the domain of law reform, including emerging disagreements between feminists themselves on the wisdom of expanding the domain of state law into greater areas of women's social lives, and possible alternatives that can be explored, given the limits of due processes; second, an increased legal literacy in Indian society more generally, including perverse and wilful use of the legal system as a weapon, and not always as an instrument of change; and, third, a broader set of political transformations that have made feminist understandings of women and law available to jurisprudential practice and to political readings of the place of law in matters of right versus faith, family versus individual, community versus women's rights, and so on. These are at times aligned with, while at others they remain disjunct from, feminist law reform and legal strategy.

In classrooms and seminars, streets and courtrooms alike, in two of India's most tumultuous decades, the relationship between women and the law has been critiqued, redefined, redrawn and generally productively recharged. The massive public participation in the redrafting of the Criminal Law (Amendment) Act of 2013, following national public outrage at the ‘Nirbhaya’ rape of 16 December 2012, renewed memories of the incredible optimism about law and its transformatory capacity in the 1983 amendments to the rape law.

In August 1936, Muthulakshmi Reddy, member of the AIWC and of the Madras legislature, said in an article entitled ‘A Plea for Marriage Reform’: ‘Marriage at any cost, under any circumstances and at any age has proved a bane to our Hindu community and has produced many undesirable results.’

Reddy's critique of the institution of marriage was important in its timing, coming at the end of a long phase of activity aimed at reforming the structure of the Indian family. Ashwini Tambe usefully tabulates ‘laws affecting the form of the family 1800–1947’ to include both those related to marriage (such as sati abolition, widow remarriage, women's right to property and succession acts) and those not related to marriage (ranging from the criminalization of homosexuality and the abolition of infanticide and the devadasi system, to protectionist measures in factory laws and the Maternity Benefit Acts). In crucial ways, the reforms of the previous century challenged a plurality of conventional kinship networks which were no longer adequate in meeting the demands of an urbanizing, modernizing society under the twin pressures of nascent capitalism and colonialism.

The transformations that affected the family form were not striving towards a preconceived homogeneous ideal. The extraordinary changes effected by colonial rule throughout the 19th century made the material and heteronormative (that is, relations between men and women) foundations of conventional familial relationships more visible but also more unstable, necessitating the recasting of the family. Some of this recasting occurred within the legal-juridical space, making obligations and rights of members of the emerging forms of family enforceable in a court of law, bringing to the foreground one of the principal functions of the family, as a means of transferring property.

The second All India Legal History Congress held in 2021 was themed ‘Pursuit of Legal History of India in the 21st Century’. It featured many eminent historians from different parts of India and the world and covered all periods of Indian history. Among the panels was one in which teachers of law drawn from different Indian universities spoke on the ‘history of women and law’. Many of them prefaced their talks by invoking the glorious, and high, position of women in ancient India, particularly during the Vedic period.

Why does the mythical (high) position of the Aryan (Vedic) woman continue to exert such a powerful hold on not only popular understandings of history but even academic enquiries, despite much feminist argument to the contrary? This book provides historically grounded reasons why the invocation of a glorious Indian past became an imperative for Orientalist and anti-colonial nationalist thinkers alike, in the 19th and 20th centuries, though it did not enchant women in quite the same way. It provides, through a detailed discussion of not just the debates and discourses but also public campaigns, case law and judicial reasoning, a far more complex and nuanced understanding of the law, critically evaluating what the Orientalists and nationalists said about law and women over the last two hundred years. The myth of a ‘glorious ancient Indian past’ and the place of women in it has received redoubled force with the recent rise to state power of the Hindu right under the leadership of the BJP. Such a focus on ancient India, ironically, draws a great deal more from the colonial constructions of Indian history than is usually admitted.

The book provides students with empirically grounded and historically reasoned ways of thinking about the past, drawing on more than four decades of feminist and other scholarship. How does this past animate legal discussions up to the present day? And how has the feminist lens challenged or transformed this understanding? We now know that both state law and custom offered ambiguous opportunities and freedoms, and could have the effect of undermining (some) women's status, in the name of either uniformity or patriarchal normativity.

The East India Company (EIC) first gained political and economic control over India when it was granted the revenues of Bengal in 1765. Since it was more than just the new landlord of this part of India, the Company was compelled to fashion a legal–juridical apparatus for its new dominions, primarily to ensure the steady and painless yield of revenues that it had been granted. Following the first flush of victory, the EIC discovered that this was no easy task. For one, the British had no real understanding of the agrarian systems of India and the range of rights that existed on land, which bore no resemblance to the relatively clear-cut alienability of land in Britain, which, as E. P. Thompson has shown, was itself only a recent development then. Also, British experience of the administration of its other colonies hardly prepared it for the first bewildering encounter with India and its many ‘non-state’ legal systems. In the colonies of North America and the Caribbean, according to Bernard Cohn, non-state legal systems were quickly replaced by state systems and, before long, were governed by institutions that were primarily an extension of the basic political and legal institutions of Britain. Indigenous populations of these colonies were quickly subjugated or simply massacred by earlier conquistadors, but India appeared to have recognizable institutions and codes which had the force of law, for which there were no British equivalents. Before long, it also became clear that Indian territories could not be governed without a better knowledge of the Indian languages of governance (Persian and Sanskrit) and ‘traditions’ and ‘local usages’ in addition to a detailed knowledge of the better-known legal texts on which the indigenous people appeared to rely.