Gender & History ISSN 09535233 Review Essay Gender & History, Vol.11 No.1 April 1999, pp.

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Janaki Nair, Women and Law in Colonial India: A Social History (Kali for Women, Published in Collaboration with the National Law School of India University, Bangalore, 1996), pp. x + 259, $28. ISBN 8 18 510782 3. Legal reform aimed at improving womens lives lies on slippery terrain. Scholars of gender and jurisprudence have been examining legislative processes and the afterlife of laws, in order to lay out the ways in which law may co-opt or contradict established regimes of power, and the mechanisms through which legal discourse simplifies and invents cultural categories. Many contend that the significance of the legal realm can best be evaluated in a broad socioeconomic and political context: do proposed reforms really bring about greater autonomy for women, or are womens issues merely the ground upon which political hegemony is negotiated? Is the public patriarchy of the state strengthened through laws which seem to curb domestic patriarchy? When laws address womens needs, are women represented as a homogenous group with similar interests? Which women stand to lose as a result of this homogenisation? These questions have been explored with regard to industrialised and developing countries, colonial and post-colonial regimes. They have resonated deeply for scholars of India, in numerous recent volumes such as Archana Parashars Women and Family Law Reform In India: Uniform Civil Code and Gender Equality (1992), Indu Prakash Singhs Women, Law and Social Change in India (1989), Vimal Balasubrahmanyans In Search Of Justice: Women, Law, Landmark Judgements And Media (1990), and Ratna Kapur and Brenda Cossmans Subversive Sites: Feminist Engagements with Law in India (1996). These books have mapped out the history of legislation and problematised the effectiveness of legal solutions. But they have concentrated on family law issues which foreground questions of gender most explicitly. Perhaps the most striking contribution of Janaki Nairs book, Women and Law in Colonial India, is that she juxtaposes family law alongside labour law, questions of political representation, and prostitution and traffic in women, and is thereby able to show continuities in cultural constructions of gender and class in these different arenas. For instance, ideologies about womens propensity for moral laxness and sexual vulnerability were deployed in various forms in colonial contexts to regulate widow remarriage, inheritance, the family wage on plantations and traffic in women. Nair argues that the ostensible motivation for reform (sought by the colonisers, nationalists and even the womens movement) was often the plight of Indian women, but because the woman visualised in these claims was middle-class and upper-caste, only certain issues affecting women merited
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discussion or transformation. Thus, there was extensive expenditure of resources over practices like sati which affected a small minority (reportedly 0.2% of widows at the height of the practice, in very select castes and regions), but little concern for the exploitation or health hazards facing women working in plantations, mines and factories. Nair contends that the status of women is produced in and through structures of caste, class and community, and any solution must engage with this matrix of structures (p. 3). Rather than identifying colonialism as the unitary problem or indigenous traditions as grave impediments, she maps out overlapping and knotting strands of various patriarchal discourses and their connection with other systems of stratification such as caste, class and region. The British agenda for reform was represented as being beneficial to women, as a civilising mission that would rescue Indian women from barbaric practices. This rationale gave the colonisers a moral upper hand over the male Indian elite, a mandate of cultural superiority that could be used to build political hegemony. And yet British notions of womens equality were far from absolute: not only did hierarchical gender relations exist in Victorian England, but Indian women were never treated as equivalent to British women. Moreover, the British demarcated Indian patriarchal communities and their practices as the norm because these reflected their own vision of patriarchy as an optimum model, and thereby marginalised Hindu, Muslim and other tribal matrilineal communities and even customary practices within patriarchal communities that gave women some autonomy from the family. Thus, the legal impetus for widow remarriage which sought to place women within the protection of marriage (and resultant economic dependence) worsened the situation of those women who had customarily acquired property as widows and also remarried, disentitling them to marital property from their original marriages under the new law. Conceivably, certain matrilineal practices (such as the impossibility of having illegitimate children when parentage is determined through the mother, no exclusive male ownership of womens sexuality, or womens control of property) could have served as radical ideals of liberation from barbarism for both British and Indian women. Instead, the British codified Hindu and Muslim norms and practices to facilitate legal administration, basing the legal apparatus on texts and customs recommended by scholars and leaders from dominant patriarchal communities. The avowed colonial support for Indian women appeared most thin at the points where the colonial legal apparatus specifically buttressed and legitimated Indian patriarchal assertions. For instance, British support for an Act recognising the right of the husband to his conjugal privileges resulted in a woman called Rakhmabai who had been married when she was eleven to an uneducated, consumptive and unemployed husband (pp. 745) and who refused to consummate her marriage on reaching puberty, being sentenced under the Act. Prominent Indian figures supported the husband, arguing that colonial attention to Rakhmabais point of view would cut at the heart of Hindu religion and family structure. As Nair insistently points out, the responsibility for the content and ideological infrastructure of colonial laws can hardly be laid entirely on the colonisers either. Indians too were centrally involved in inventing traditions, in constructing the contentions of a numerical minority as Hindu or Muslim norms. Vocal Hindu groups
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whom Tanika Sarkar names nationalist revivalist frequently asserted that many inequities pertaining to women were fundamentally definitive of Indian culture, and that preserving these practices was an important form of resistance to colonial domination. Other Indians, predominantly Brahmin scholars of Sanskrit, were recruited by the British to look for textual interpretations that would validate British intervention. Nair emphasises the inherent problems of seeking validation for purportedly radical reform by turning to an array of texts spanning several millennia and covering legal, ethical, religious and socio-cultural topics; obviously, these diverse texts can yield infinite interpretations, but using them as the justification for reform assumes their continuing relevance and uniform applicability, and requires arbitrarily assigning certain texts greater authority. And yet, scriptural justification became the central criterion of reform not only for nationalist revivalists and for scholars recruited by the British, but even for Indian reformers like Rammohun Roy and Iswarchandra Vidyasagar who sought radical change for women. Both these men wrote tracts early in their careers using reason and humanity as rationales to condemn social practices, but relied on the criterion of scriptural sanction in their subsequent public campaigns. Nair does not exempt Indian women from her critique either. While she documents the vocal intervention of organisations like the AIWC and legislators such as Muthulakshmi Reddy in a range of political issues affecting women, she also emphasises that the organised womens movement primarily addressed uppercaste and middle-class interests, and often had to subordinate womens interests to the anti-imperialist cause as well. In contrast, she argues that the postindependence womens movement has been attentive to problems affecting women in various classes and castes, and to addressing change both in the legal arena and through social movements. Her framing of colonial debates in terms of recent situations affecting women is important for showing resonances, but the discussion on contemporary problems lacks the rigorous detail of the other chapters, especially with regard to analysis of legislative processes and connections to political economy questions. However, there are numerous other books which cover these current topics, and the contemporary scenario is not the focus of Nairs intricate research. It seems churlish to ask more of a book that already covers so much, but I was also somewhat disappointed with her brief attention to scholars of feminist legal theory such as Catherine Mackinnon, Martha Fineman and Carol Smart. She offers the critically important contention that the sameness-difference debate in constructing ideas of equality has very different meanings in colonial contexts such as India because differences are produced and reified by the colonial State, but then fails to develop this provocative contribution to feminist jurisprudence. Janaki Nairs work complements that of many recent historians of India (such as Partha Chatterji, Dipesh Chakravorty, Uma Chakrabarti, Tanika Sarkar, Lata Mani) who have focused on the centrality of the woman question as the marker of cultural authenticity or modernity, and a prime site of colonial domination and resistance. Her book is a significant contribution to this field not only because of the breadth of its subject matter, but also because of its attentiveness to the complexity of the social fabric and the ways in which tradition is invented and used within the modern. As a social history of law which challenges gender neutral histories of the Indian state (pp. 1516), it is valuable for studying not just British Indian relations, but the dynamics of colonial lawmaking and the sociology of law
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as well. I also recommend it strongly as a text of feminist jurisprudence that could provide a well-nuanced portrayal of Indian women and law in a field dominated by Anglo-American issues. SRIMATI BASU Department of Anthropology, Depauw University, USA

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