A Prehistory of Rights: The Age of Consent Debate in Colonial Bengal

by Tanika Sarkar
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Title:
A Prehistory of Rights: The Age of Consent Debate in Colonial Bengal
Author:
Tanika Sarkar
Year: 
2000
Publication: 
Feminist Studies
Volume: 
26
Issue: 
3
Start Page: 
601
End Page: 
622
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English
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Abstract:

A PREHISTORY OF RIGHTS: THE AGE OF CONSENT DEBATE IN COLONIAL BENGAL
TANIKA SARKAR

"I saw my daughter lying on the cot, weltering in blood."' This statement was part of the evidence given in court by Radha- monee, mother of eleven-year-old Phulrnonee, who died of mari- tal rape by her husband in 1890. The child's death was widely reported and discussed, and, in 1981, Indian reformers persuaded the colonial government to raise the miniurn age of consent for married girls to twelve. Hindu orthodoxy and cultural national- ists opposed the Age of Consent Bill. They argued that it violated a fundamental life cycle rite, garbhadhan, which made it obligatory for a girl to have intercourse with her husband within sixteen days of her first period.

An extract from a Bengali newspaper that furiously opposed the Age of Consent Bill noted: "It is the injunction of the Hindu shastras that married girls must cohabit with their husbands on the first appearance of their menses . . . and all Hindus must implicitly obey the injunction. . . . And he is not a true Hindu who does not obey it. . . . If one girl in a lakh or even a crore menstru- ates before the age of twelve, it must be admitted that by raising the age of consent the ruler will be interfering with the religion of the Hindus. . . ."'

Nineteenth-century colonial Bengal was not a time when indi- vidual rights as an inalienable, public, and explicit claim could be asserted by a woman as such; a woman was not seen, as yet, to be in possession of an individuated identity of self-separable from the family-kin-community nexus-to which rights could adhere. Yet, an argument for an unabridgeable claim to her life was slow- ly emerging as a perceived necessity in the free-ranging, self- reflexive debates within the emergent public sphere. Her right to

Feminist Studies 26, no. 3 (fall 2000). O 2000 by Feminist Studies, Inc. 601

life slowly and gradually emerged over the next few decades from the struggle to protect her from violent death. This was an important and contentious beginning, and the long nineteenth century was in a way a long debate over the claims of a woman's community/family/caste to the right to inflict death on her: in controversies about widow immolation and age of consent, her physical survival was the issue, and in the widow remarriage debate, her sexual death was at stake.

In the 1890s, the fledgling notion of a title to life was expressed in the word "consent": a polyvalent, mid-term word, containing the seeds of concepts about personhood and right. The age of consent debates in Bengal in 1891, and the many meanings that were attached to the woman's consent, convey the intricacies of the transition.

To understand the full range of the possibilities of modern laws, however, we need to go beyond the state and its legal-judi- cia1 apparatus and locate their reception in the public ~phere.~ More than that, we need to go beyond the debates on law and the related debate on community and start with a little girl's death and the multiple representations of the event.

In 1890, Phulmonee, an eleven-year-old girl, was mangled to death after horrible bleeding and pain when her twenty-nine- year-old husband, Hari Maiti, forced intercourse on her. Hindu law permitted cohabitation with child wives, and the colonial penal code had laid down that only intercourse with wives under ten would be counted as rape. Hari Maiti was thus exempted from the murder charge as well as from the charge of rape: he was found guilty of causing death inadvertently by a rash and negligent act.

The death was a crucial event. It brought together and reener- gized continuing debates on Hindu domestic norms and the need for legislative reform. A huge controversy was sparked in the press over the issue of child marriage and over the custom that permitted cohabitation with the child wife. Child marriage, how- ever, was not only customary but was also strongly recommend- ed by authoritative religious codes. The colonial state, therefore, was not ready to intervene here. The only intervention that could expediently occur was about the age of consent within marriage.

The Phulmonee episode, widely reported as it was in the press and in reformist associations, made it difficult to skirt the possi- bility of a new age of consent entirely. It added fuel to the reformist camp and temporarily embarrassed and silenced revivalists. The government misread the silence to assume that there was a favorable climate of opinion for reformist legislation.

Cultural nationalists, however, soon gathered strength and re- taliated with massive protest campaigns. They argued that a higher age of consent would violate the garbhadhan ritual, the first of the ten fundamental life-cycle rites for high-born Hindus."f the rule is violated, the womb is polluted, the bride's future sons will not be able to offer pure ritual offerings to ancestral spirits, and the sin of feticide will be visited upon her father and her hus- band. In short, it would be death for the community, for it would nullify the first principle of Hindu domesticity. An excerpt from Bangabashi, a newspaper that played a leading role in the antistate campaign, provides a fairly typical example of the rhetoric that was a powerful challenge to the state. "The day has at length arrived when dogs and jackals . . . will have it all their way. India is going to be converted to a most unholy hell, swarming with hell worms and hell insects. . . . The Hindu family is ruined."5 Or, "The Englishman now stands before us in his grim and hideous nakedness. How dreadful the attitude: . . . Terror of the Universe, Englishmen: do you gnash your teeth, frown with your red eyes, laugh and yell . . . keeping time to the clang of bayonets . . . and we . . . the twenty crores of Indians shall lose our fear and open our forty crores of eyes."6

The rhetoric is death defying, a heroic self-assertion against a racialist and tyrannical colonial state. The autonomy of the Hindu man had been irrevocably colonized by alien culture and educa- tion. The Hindu woman's body, thus, became a deeply politicized matter, for it alone could signify past freedom and future autono- my. The community could attach this body firmly to itself through a Shastric and custom-based regimen of nonconsensual, indissoluble infant marriage for the woman. The woman needed to be strictly faithful, even if her husband abandoned her, remar- ried many times, even if the marriage was not consummated, and even if he died.7 Such arguments bore much fruit. They certainly curbed the effectiveness of the new reformist laws, for widow remarriage, although legalized since midcentury, continued to lack moral sanction within the community. The custom of sati, on the other hand, which had been legally outlawed, remained enshrined within community memory as a signifier of the Hindu woman's moral strength, the ultimate proof of Hindu greatness.

Derived from Brahmanical prescriptions, these customs had become widespread and entrenched among most lower castes as well. By the late nineteenth century, upwardly mobile segments from most low and even untouchable groups frowned upon widow remarriage and practiced infant marriage of girls, even though their own caste custom had been far more flexible in the past.$ Upper-caste patriarchal practices constituted a horizon of "clean" norms that aspiring lower castes could draw upon in order to claim a better ritual standing. In practice, a variety of local, caste-related usages prevailed, but the pull was always toward the upper-caste norms. An orthodox newspaper made this clear: "The Brahmin caste occupies the highest position. . . . All other castes conduct themselves after the fashion of the Brah- manical caste^."^ What the revivalists argued, therefore, was per- fectly true. The highly diversified, caste-divided Hindu commu- nity did derive much of its commonality from Brahmanical patri- archal norms and practices: it was what upper-caste women did that held the community together as one, despite enormous inter- nal stratification.

Given such a premise, the politics of cultural nationalism was bound to oppose any further abridgement of the Hindu domestic discipline by alien or reformist legislation, for under colonialism, the domestic realm was all that they could possibly rule them- selves. The community leadership-inevitably, the male, upper- caste, landowning middle class-was divorced from agricultural as well as industrial, commercial, and financial entrepreneurship and from administrative decisions and legislative or military power because of colonial racial discrimiation. By the latter half of the century, a crisis of investment had become acute, because Bengalis had been squeezed out of higher financial, mercantile, and indus- trial spheres. Agrarian rent-so far a safe enough source of profit- was threatened by some colonial moves for minimal protection of tenants, and by peasant movements. These privations, the shrink- ing scope for self-expression through "male" enterprise, and the militant nationalist self-organization of the late nineteenth century, gave the age of consent debates their extraordinary charge.''

The characteristic condition for the making of cultural national- ism becomes evident here. The subject of enunciation is an upper- caste, affluent, powerful male voice coming out of the dominant religious community. However, its design for power is based on its evocation of certain death for itself, its eschewing of its own undoubted authority and hegemonic capabilities; or, rather, its hegemony derives from a claim to powerlessness, to the prospect of extinction. It compels surrender and submission by flaunting its fragility in face of a far more triurnphalist hegemonic authori- ty-Western reason that claims universality for itself." I suggest that in colonial and postcolonial situations, leaders of communi- ties ensure their power over the lives of individuals through sug- gestions of the imminent death of the community. They then authorize the self-abdication of individual claims as a repertoire of rights separate and distinct from the community's commands and injunctions. Community leaders demand a human sacrifice in the name of the threatened community."

In the discourse of cultural-nationalists, there was an implicit weighing of the relative importance of the two deaths. It was not that they condoned or sympathized with Hari Maiti. Their repug- nance against his act, however, paled into insignificance when they contemplated that countervailing measures might lead to an abridgement of the community's totalitarian rule. Could the death of a girl be equivalent in import to the death of an entire cultural system? As a revivalist newspaper had put it on an earli- er occasion, over the matter of a Hindu woman's claim to repudi- ate a nonconsensual infant marriage: "It is very strange that the whole Hindu society will suffer for the sake of a very ordinary ~oman."'~

The great reform campaigns of the nineteenth century re- volved, one way or the other, around the question of the woman's death: sati and the age of consent related to the violent destruc- tion of her physical body, while the widow remarriage issue was centered on her death as a sexual being. The question was not really whether the community or the state should have the power to inflict death on the woman, although quite often this is how it is posed. The real issue was whether the woman, as a person, en- joyed protection from violent death when the community laws allow such a death to occur. The question was also whether she was, in fact, legally and politically, a person at all whose claim to life would be self-authenticating because of her personhood; or, was she politically and socially a dead person, the way Orlando Patterson had described the slave as socially dead, as one whose claims can not be authenticated because of an absence of recogni- tion for her personhood? Finally, the issue was about the relative importance of two units: the person as a rights-bearing individ- ual, versus the community as a culture-bearing entity. Because the Hindu community has placed supreme emphasis on the woman as the vehicle of its cultural authenticity, could she be acknowl- edged as a bearer of culture or as a bearer of individual rights? There were, in other words, looped discourses on the politics of recognition and the meaning of survival. Who should be granted it, if both claims came from threatened species and if the two claims contradicted each other?

What was the role of the colonial state? It is usually seen as an agency of modernization, trying to acquire cultural hegemony by outlawing the culture of the colonized, by refusing the particulari- ties of lived practices in the name of a counterfeit universal reason that was actually white, male, and Enlightenment generated. In practice, however, the colonial state had always promised that the entire sphere of belief, religious observance, domestic practices like marriage and inheritance-the region of personal laws-would be codified according to religious norms, scripture, and custom of the different communities. This, then, was an arena that the state itself assigned to the community. All changes related to sati and widow remarriage, indeed, followed only upon strenuous-and often dubious-reinterpretations of the scripture by liberal reform- ers. A senior and influential colonial bureaucrat, H.H. Risley, wrote about infant marriage in 1891: "Many things have been said of infant marriage. . . . Much of the criticism . . . seems to be based on considerable ignorance of . . . Oriental life . . . and it were folly to dream of making all things new."l"e politics of recognition that Charles Taylor recommends for the survival and self-repro- duction of subordinated communities15 was indeed guaranteed by the colonial state in the field of domestic practice.

Elaborated and spelled out, such a politics of recognition would imply that community norms would not depend on extraneous issues like moral implications derived from universalistic criteria. The community would live by its own laws without being re- quired to explain its particular self-understanding according to ex- ternal norms.16 The compact between the state and the community, therefore, allowed very little room for social change: Reformers could address only a few areas where alternative scriptural rulings or readings were just about possible, but the scope was inelastic. In any case, the procedure of the compact doubly reaffirmed the rule of scripture and custom; for laws could not be made, remade, or unmade on any other grounds apart from scripture or custom.

In colonial deliberations, we find a deep embarrassment and discomfort. The Age of Consent Act was a halfway-house com- promise which tried to reaffirm community discipline and also to ensure the physical safety of the woman. It crirninalized cohabita- tion with a wife under the age of twelve, arguing that this would ensure that consummation would occur after puberty, for girls rarely started their menarche before that age. The garbhadhan cere- mony would then be enacted at the right time and prepubertal girls would also be made safe from premature intercourse. The compromise pleased none, and the law was indeed an exception- ally clumsy and inept one. Orthodox pundits and cultural nation- alists grumbled that this made nonsense of garbhadhan, for most girls menstruated before age twelve. Hindu domestic order had, therefore, been dealt its death blow. Liberal reformers, on the other hand, argued that a lot of girls menstruated after twelve, and, in any case, menarche did not mark full puberty and physi- cal and mental maturity necessary for safe intercourse. The law, therefore, still exposed girls to brutal damage and death.

The colonial government, however, would go so far and no fur- ther. Moreover, it took good care to surround the act with safe- guards so that neither domestic privacy nor the husband's privi- lege would be abused by the state. Outside the spaces of the state and the community-although overlapping and intersecting with both-some countervailing institutional developments were taking place. Modern conditions of communication-especially the growth of the press, print medium, and a vernacular prose that was easily accessible to a large, wide-ranging reading and writing public-allowed the expression of alternative values, articulated and elaborated through constant debates, arguments, and the pro- duction of new meanings. Even when the arguments were instru- ments of a purposive, manipulative rationality, they needed to sustain themselves before a public tribunal that they needed to convince. I suggest that two momentous political changes came out of a public sphere where opinions were exchanged, debated, revised, and publicized. First, even though the state exempted the community from explaining and justdymg its rationale, the proce- dures of the public sphere insisted that it must be publicly defend- ed. Given the presence of the informal tribunal, the community-if it had any hegemonic aspirations-was forced to constantly explain itself. Second, in the process, the exchange of arguments broke down the givenness of community rule and further broke down and rendered all norms postconventional-that is, norms that would now require discursive self-justification. Neither religious injunctions nor state legislation could any more belong to the realm of nonnegotiable articles of faith or unquestioned, sediment- ed deposits of common sense. Stmcturing principles of individual life and of nation were taken apart, debated, argued over, prob- lematized. What emerged was not so much fresh democratic laws or a higher reason so much as a weakened basis of all injunctions that could no longer command in majestic authority but would now have to argue every inch of their way. Even if all voices were more or less patriarchal, authoritarian, power laden, and manipu- lative, their incessant mutual interrogation loosened up the ground of their authority. Their mutual criticism made transparent the ideological foundation of all systems.

There was, I suggest, a crucial indeterminacy of all meaning rather than fixed, explicit, confident certainties. The public sphere, through its pluralized nature and the consequent problem of selec- tion, thus offered opportunities of autonomous moral choices to a politically interested public. Colonized Indians lacked formal citi- zenship rights, but within the public sphere they nonetheless arro- gated to themselves some of the capabilities associated with citi- zenslup. Habermas has postulated that ideal laws are those whose addressees know themselves as possible or potential authors of the laws themselves.17 Given the immunity enjoyed by personal laws, and given the argumentative quality of the public sphere, an access to specific lawmaking capacities occurred in this realm of personal laws in late-nineteenth-century Bengal, even within the overarching, highly antidemocratic colonial context.

I have identified five levels in the discourse around the age of consent issue which I shall very briefly refer to. The first and the most immediate were the trial proceedings of the Hari Maiti case, especially the charge of Justice Wilson to the jury. Then we come to the opinion of the medical establishment, largely European. Third is the opinion of administrators, reporting to the govem- ment of Bengal about the conditions and the problems of child marriage and premature cohabitation in their respective districts. Next came statements from Indian men of importance, whose opinion was solicited by the government before the new law was drafted. As yet, provincial legislative bodies had no Indian repre- sentation. The government therefore invited a large and mixed group to advise it on the law, drawing upon leaders of political associations, social reformers, well-known journalists, lawyers, and a very broad group of pundits. Finally, I have relied on dis- cussions in the public sphere, in journals, newspapers, tracts, the- atrical representations, and comments.

What is striking is that the government neither asked for wom- en's opinion, nor did it request Indian correspondents to consult the opinion of the women in their families. None of the Indian correspondents-not even the reformists-suggested that they had done so on their own. One of the reasons for the absence is that women's organizations were still to come into being. In their absence, it was far too delicate a matter on which individual women would express their opinions. Nor do we find specific ref- erences to the matter in the discursive writings by women that had started to appear in print beginning in the 1860s. Is it true, then, that the reformist campaign for raising the age of consent was more a male concern about the nature of future nationhood than a concern for the problems of women as perceived by women themselves?

I would suggest a more finely tuned reading of what appears to be silences. Women's writings, especially the autobiographical ones, portray the initiation into married life as a time of great fear. At the same time, they describe middle age-the onset of the infer- tile period when the sexual connection was usually terminated-as a time of relative power, freedom, status, and happiness.18 The contrast between the felt terror about the beginning of the sexual connection, and the sense of release associated with its conclu- sion, could be one way of referring to the unmentionable trau- matic episode. At least one early woman writer, Basantakumari Dasi, was quite explicit. Nonconsensual child marriage makes chastity both mechanical and difficult, she said, "for physical inti- macy is a form of horrible coercion for the child wife, especially in the total absence of familiarity and compatibility. They are not animals, they, too, are human beings."19

Young wives sometimes were killed by enraged husbands when they refused to go to bed with them. Newspaper reports of these events record something of the strength of their revulsion. In May 1873, the "mature" husband of a girl of eleven "dragged her out by the hair and beat her till he killed her," because she would not come to his bed. He was let off with a light ~entence.~' In June 1875, an elderly man beat his young wife to death for sim- ilar reasons. Neighbors tried to cover it up as a case of suicide, but a charge of murder was eventually brought against him. The jury, however, again let him off with a light ~entence.~'

In several court cases related to forced intercourse, which re- sulted in physical damage, the girl as well as her mother forceful- ly and elaborately deposed in the courtroom, even though it was considered grossly improper for women to appear in court at all or to refer to things like menstruation or intercourse in public. Phulmonee's mother, aunt, and grandmother gave graphic and angry descriptions of her suffering and about her husband's cul- pability. In another case, reported by the Bengalee in July 1891, the girl herself gave a detailed account of the rape. So judicial records did preserve the actual words of women, even when legal dis- course failed to specifically reserve a space for them. Newspapers made them reverberate in the public sphere. The Bengalee, a reformist newspaper, repeated the evidence given by a girl at court: "I have not reached puberty, . . . My husband violated me against my will. . . . When I cried out, he kicked me in the abdomen. . . . He rebukes me and beats me. I cannot live with him." The elderly husband, however, was discharged by the British magistrate, and the girl was restored to him.22

Official documents would not seek out the woman's opinion on such a matter. Nor, as indicated earlier, was there an idea of female personhood that would make authorities seek out this voice. Nonetheless, interesting representational possibilities were encod- ed within legal-judicial and administrative discourses and proce- dure, through which the girl child and her experience could force an entry.

The entry was least evident in the words of the judge when he summed up the evidence on the Hari Maiti trial. In his charge to the jury, Justice Wilson dwelled on the man's action alone: whether he had previous occasions of intercourse with Phul- monee, whether he knew that vigorous penetration could be fatal, whether he knew she had not yet started menstruating. He also made it a point of criticizing neither Hari Maiti's nature, which in- clined himto enjoy a child, nor the domestic-conjugal custom that allowed him to do so. "Under no system of law . . . whether Hin- du or Mohammedan . . . has it ever been the law that a husband had the absolute right to enjoy the person of his wife without regard to the question of safety to her."23 The judge's focus was on a man's actions on a specific night, and he bent over backwards to give himevery benefit of doubt.

The European members of the medical establishment similarly made it a point to exempt Hindu marriage custom from all blame. The British secretary to the Public Health Society of India wrote to the government of Bengal: "The Council direct me to lay special stress upon the point . . . that they base no charge against the native community. . . . The Council admit that our native fellow subjects must be allowed the fullest possible freedom in deciding when their children should be ceremonially married. That, in the constitution of Hindu society, is a matter with which no govem- ment could meddle and no Government ought to meddle."2"

At the same time, the very nature of their evidence compelled the medical authorities to focus their gaze on the corpse of the "unhappy child Phulmonee Dassee." Phulmonee had died after thirteen hours of agony and continuous, profuse bleeding. They had to record the precise traces of a brutal and fatal penetration, they had to agree that even at eleven, which was over the statuto- ry age of ten, Phulrnonee's body was sexually immature. Further- more, they had to generalize beyond the individual body. They admitted that even menarche did not prepare the body for safe intercourse, and, in that case, premature maternity was extremely dangerous. They talked of difficult and delayed labor, of laceration of genital passages, of extreme exhaustion and frequent death of the child mother, even when they had agreed that there should be no legislative interference with either child marriage or the custom of early cohabitation. They thought that about twenty percent of the births in Bengal occurred to mothers between the ages of eleven and thirteen. They cited medicolegal data to show that in 1872alone, there were 205 recorded cases of infant deaths from the results of sexual ~iolation.'~

While medical opinion focused on damaged infantile bodies, administrators reported on the ubiquity of the custom, in all places, among all castes and communities. On the whole, it was more common among lower castes. Among upper castes, due to the growing pressure of dowry demands, the age of marriage for girls was going up slowly, because parents needed more time to put together an adequate

A few Bengali observers added more intimate and painful de- tails of other situations: how the little girl was forced against her will to go to her husband's bed, how the older women of the fami- ly hoped for as early an appearance of the new generation as pos- sible, how her vagina would be dilated through mechanical means and bleeding artificially induced, to make her ready for inter- course and conception. They interpreted the copious tears of the little girl, when she comes back to the matrimonial home from a visit to the natal one, as tears generated by the fear of the hus- band's advances. They read her wan face, her premature ageing, and her fatigue and early death as something induced by prema- ture sexual contact and childbearing. A few of them also talked occasionally of mental and sexual incompatibility, of something as cruel as rape, even though they found it difficult to accept-or to even conceive of-the concept of marital rape. If the female voice could not be admitted yet, a hermeneutics of deciphering wom- en's physical signs, gestures, and emotions did develop and were incorporated in the deliberations of the making of a new law.27

True, all that we have here are male representations of women's experiences. But the mediated, refracted male representations nonetheless refer to the female life world. The representations, moreover, had to be debated extensively and authenticated in the public sphere where already some women had appeared as critical observers and commentators on domestic custom. What is histori- cally significant about this departure is that in the process the mas- culine gaze was expanded and altered. A new way emerged of looking at the woman's sexual or maternal body. We must re- member that Bengal had an old, established classical literary tradi- tion for describing both in wonderfully lush, rich detail. Now, we find deconstructive descriptions of both the iconic images: instead of a nubile, youthful body, the broken body of a mere child; instead of the sacred, lustrous maternal body, the emaciated, exhausted body of a child mother. The materiality of pain and damage peeled away the iconic layers.

In the process, the home and the family were reinscribed as a place of danger, of death-whether for satis, for widows barred from remarriage, or for child wives. This was a crucial departure, because both ancestral tradition and colonial law consigned the woman to her home. If the home now appeared as not her refuge but a torture chamber, her grave, then was there a justification in restricting her to it? I noted earlier that Hindu cultural national- ists used a contrast between the loving heart of the Hindu home with the loveless, coercive nature of colonial rule. They saw all domestic arrangements as a matter of willed love and surrender on the part of the woman, in contrast to the forced submission of the Indian man to the colonial order. Bankimchandra, the first Bengali novelist, eroticized the spectacle of sati most skillfully: the wife sits amidst rising flames with her dead husband's face against her breasts; the fires of the funeral pyre lick her body sen- suously and consume her as pleasurably as do the flames of desire.28Widows supposedly spent a lifetime of sexual asceticism, exalted by memories of their husbands: widowhood was a time not of deprivation but of joyous expectation of reuniting with them.29 The child bride was described as a delightful little doll, full of fun and frolic, bringing pleasure to all.30 The entire system- of widow immolation, of celibate widowhood, of nonconsensual, indissoluble infant marriage-had been bathed in shared pleasure, in sensuality, to make a stark and telling contrast with other sys- tems of marriage, and with the heartlessness of colonialism.

The deliberations over the age of consent, however, struck more than a jarring note. It brought the glowing edifice down as it relentlessly refocused a complacent male gaze on a broken young female body. The Hindu home could no longer provide the necessary contrast to the colonial order. Worse, it almost seemed to provide a justification of it, as indeed many women's writings between the 1860s and the 1890s had claimed: "Men, you have done a terrible wrong to the women of your country and, for that, you are condemned to live as exiles in the land of your birth."31 The death was too serious a matter to allow the male gaze voyeur- istic satisfactions. Whether revivalist or reformist, it was now a very anxious gaze. A new possibility also forced itself, adding to the discomfort. Were they talking of the woman or about a mere child yoked to untimely marriage? Was there a separate stage in the woman's life as childhood, and if so, was it compatible with marriage? A newspaper opposing the bill argued that the Hindu girl's biological development should be differently assessed: "According to the Hindu, the childhood of a girl is to be deter- mined by reference to her first menses and not to her age. . . ."32 Reformers linked childhood to a stage anterior to the full maturation of all the sexual, procreative organs. A minimum age, they said, would be a safer index.

It is also significant that lawmaking in the domestic realm gave short shrift to the divide between the private and the public. Con- jugal connections, the woman's concrete mode of being, her body, indeed the vagina itself, were matters of lawmaking. A whole range of newspapers began to report on laws on sati and widow remarriage. The fortunes of the Bangabashi were made out of its stand on the age of consent. The Amritabazar Patrika turned itself from a weekly newspaper into a daily during the campaign. Farces lampooning the new law were enacted with roaring suc- cess in the new public theaters of Calcutta.

Feminists have noted that the entire domain of interactive rela- tionships, of love, nurture, and care, are usually excluded from moral and political considerations, ensuring a split between the male sphere of public justice, ethics, and morality, and the female sphere of affect, emotions, and nature.33 In the Indian colonial pub- lic sphere, however, questions of political justice and rights were articulated, and even conceived of, very largely in and through discussions of the intimate sphere; of domestic arrangements; of the nature, virtue, and ideals of different kinds of human relation- ships. These were often the metaphor for the larger questions of the politics of colonialism whose effects were read and evaluated through the grid of power relations between Indian women and men.

Women are entirely socialized by and restricted to family-kin- community. The notion of a legal right to life, or a right to a sexual life, implicitly, notionally, gave her the protection that was neither promised nor conveyed to her by the community or the family. It gave her a new identity as a legal person over and beyond the group membership, an identity, moreover, that was contested by her established guardians. It was an identity formed outside the latter's control, exercised in an arena that was not created by them. The woman as notionally a legal person sat somewhat at odds with her old masters. The ideological interpellation was fractured just a little bit.

This is an implication of legal personhood that was absent in the other variant of revivalism-that of the Arya Samaj, for in- stance. The Samaj accepted most reformist proposals, but the new Arya community handed them to the woman as a matter of its own consideration and will. It knitted the woman far more close- ly to the family-community nexus; it did not leave an additional, potentially noncontrolled space for her. It could not stimulate her sense of herself as a rights-bearing individual that she could at least notionally derive from the legal identity.

The word "consent" was used in peculiar ways in all these dis- courses. Medical, legal, reformist, and nationalist opinion agreed to attach it to a certain physical capacity when a girl could sustain intercourse without much damage. Differences arose over sub- sidiary issues: when would this capacity be achieved? Did menarche sigtufy full puberty and did either menarche or puberty indi- cate sexual maturity? What happens if the girl starts menstruat- ing before she is twelve and cannot perform garbhadhan because of the new law? Above all, there were differences over whether a statutory age of consent was necessary or whether it should be made mandatory that only after menarche would the wife be allowed to visit her husband.

At this point, the question of self-choice or of compatibility did not seem to inflect the notion of consent anywhere. The immunity that the woman's person would enjoy would depend on when her body signified a certain readiness. So it was her body that sig- nified consent, and it was her body that would enjoy legal irnmu- nity till then. The protected person was nothing more than a pro- tected body; personhood for her did not extend to anything beyond sheer physicality.

The interesting question is why this particular word, then, was used at all, with all its connotations of an informed assent. The Bengali term for the Age of Consent Act was sammati ain, and that also meant assent based on intelligent understanding. If we say that this was a mechanical replica of the phrasing used in the British law of consent of 1885, we need to look beyond this partic- ular moment. The word-or a synonym-was used again and again, in the debates on sati and widow remarriage. Both the war- ring camps would argue that they represented the authentic assent of the woman: while reformers argued that widows feared burning or a sexless life, the orthodoxy insisted that they were impatient to rejoin their husbands in heaven or that they could not contemplate sex with another man. The Petition against the Abolition of Suttee of 1829 declared: "Hindu widows perform of their own accord and pleasure . . . the sacrifice of self-immola- tion." Later, the Bill to Remove all Legal Obstacles to the Marriage of Hindu Widows stated: "In the case of the widow who is of full age . . .her own consent shall be sufficient to constitute her remar- riage The notion of assent, not simply obedience, had become central to both fundamentalism and reform.

However strategically limited to a physical state or represented by men, it seems that one way or the other, the woman was sup- posed to signify consent-to community discipline or to new laws. And this is a very new thing, indeed. Her consent had been so far entirely absent as a constituent element for lawmaking- whether for the ancient codes of Manu or of Parashar or in the later edicts of Raghunandan, or in the eighteenth-century sacred text of Mahanirvanatantra, much used by Rammohan Roy. We find our- selves, therefore, on the threshold of a new understanding about the nature of ideal laws, shared, ironically, between reformers and revivalists. By now, moreover, anticolonial nationalism had devel- oped far enough to make the principle of self-governance by Indi- ans a normative ideal, as both general good and general right.

Even the national admittance of the principle of consent was an important departure. For once incorporated as a principle, it would inevitably open the door to more radical demands, as indeed it did: that women sigrufy their assent in their own words from an organized forum meant to represent women's collective voice and interest, that women mobilize themselves on a public platform to do so, that women be separately consulted by law- makers, and that women themselves become part of the lawmak- ing procedure. When the question of child marriage was re- opened in 1927, we find that all of these things had already hap- pened, in less than thirty years.

The enormous transformation indicated the formation of a new feminine competence. A handful of educated women had already appeared in the public sphere of print, writing critical, reproach- ful polemics against Hindu marriage practices.35 I suggest that the emergent possibilities made it imperative to include the term "consent," even as its scope was restrictively read as mere physi- cal symptom. The possibilities gathered strength in the next two decades which saw the first beginnings of organized women's movements. They also saw a far more articulate notion of gender rights, spelled out as such. At the time of the age of consent agita- tions, however, we stand at the confluence of different possibili- ties, at the point of a slow, faltering, but real transition toward a sense of the woman as a rights-bearing person.

Beyond its very limited and distorted application in the legal arena in 1891, then, the nomenclature itself showed that the dis- course on the woman's personhood had started shifting already. It was a shift that the community, too, needed to accommodate, at least in its rhetoric. Its leaders might claim exemption from the criterion of universality of their ethical rules on the grounds of recoption of cultural particularity and difference; but they could no longer openly say, without severe costs to their hegemonistic designs, that the assent of their women was not necessary.

The tension between their own laws and their public rhetoric put intolerable strains on their discourse. The age of consent debates were a single, exceptional moment when they were forced to say that their stricture was more important than the woman's consent and, furthermore, that this sticture need not base itself on the woman's consent. Rajendralal Mitra could say it only ironical- ly: Hindu women are given away as cattle are; how can their con- sent make any difference to marriage tran~actions?~~

A newspaper leading the campaign against chanpg the law said that even if a hundred Phulrnonees died even more pady, the custom must be retained.37 Another ideologue said that Hindu custom was painful, indeed, and did extract a severe price from its women. Its glory lay in its very severity. "This discipline is the pride and glory of chaste women and it prevails only in the Hindu society," said another stalwart anti-bill ne~spaper.~'

If difference was seen to lie in greater discipline than in love, then discipline must be exalted as the sign of cultural authenticity.

The older argument from pleasure, however, was an important ground that cultural nationalists were forced to cede and surren- der. Its abdication diminished their critique of the alien state, and it darkened the bright picture that they had painted of the Hindu home and the Hindu woman. It weakened the moral basis of their nationalism. In the next century, at the time of mass-level politics and mammoth, popular anticolonial struggles, the orga- nized leadership of nationalism would pass from their hands into another kind of politics that was ready to combine the impera- tives of liberal universalist arguments with systemic critiques of colonial rule.

The nineteenth-century contentions can now be related to some contemporary debates on individual rights and community rights. There is a growing worry that the modem state vaults over the realm of community existence by distributing rights between two poles: the individual, culturally marked citizen who is the repository of rights, and the state which guarantees rights. Ex- cluded from a properly secured legal personhood, the community cannot-it is felt-expect survival and continuity through future generations. Hence community laws-which in normal times ensure cultural authenticity-turn pathological in a situation of imminent death.

It was to avoid this that Charles Taylor has argued about the necessity of ensuring the continuity of minority cultures and not merely their survival. That involves the conferral of certain pow- ers over the individual and her choices on the community.39 In the Indian context, controversies surround the classification of domi- nant and minority cultures. Partha Chatterjee has tried to refuse all such distinction between indigenous dominant and minority cul- tures in the face of the all-pervasive dominance of the West. Going by his reoriented, single-axis polarity between indigenous/subal- tern and Western/dominant, we run into a problem.40 What ground is there to separate out and defend the right to life of an individual, if we do not ascribe to certain rights the status of uni- versal and general good, even when they run counter to the claims made upon individual lives by "threatened" cultures? For the notion of rights as a universal claim becomes urgent and substan- tial only at this point of conflict, where, unless one is given absolute priority over the other, it dies.

Taylor does, indeed, set apart certain "invariant conditions" where cultural claims will not apply, and a matter of life and death would, obviously, be the first of them.41 However, where do we ground such invariant conditions, when we privilege them over a culture's demands? We can only refer to the claim to life as an absolute imperative; but if we do so, we have already conceded the most vital and enduring claims of universal rights. The claims of the community will henceforth be parasitic upon the residue that is left over from the domain of rights. To argue on these lines does not at all mean wiping individual lives clean of community and cultural influences. It means simply not allowing them mandatory powers even when the individual rejects certain aspects of them. It also allows the individual to select, move away, and deny aspects of the culture into which she is born. Only within a horizon of freedom can she have a meaningful rela- tionship with her cultural life world.

In a very important qualification made by Seyla Benhabib to the notion of rights, there is a continuity that is posited between the embedded and embodied individual self that can only derive its full identity from a collective, communitarian identity. Haber- mas suggests a similar convergence by pointing out the organic link between the individual and her life world, so that the two are not conflicted but are complementary identities. A fuller realiza- tion of the rights of the former will lead on to a larger fullness of the rights of the latter.

The reflections on the necessary connections between the indi- vidual and the collective selves are entirely valid. At the same time, they conceal a part of our problem by overlooking the possi- bility of rupture and choice. It is not enough, when conflict occurs, to fall back upon the categorical sanctity of invariant con- ditions. It is necessary also to recognize that they are universalis- tic in nature, and they demand a greater claim over and above particularistic considerations, however urgent.

Benhabib has rightly pointed out that critiques of universalism choose to use "substitutive" rather than "interactive" conceptions of the idea.42 The latter would indeed take care of many of the questions posed by the critique; for while "substitutive" concep- tions evoke a false universalism by substituting a particular cul- ture for the universal, interactive notions base universal norms on something like a genuine fusion of normative horizons. Interac- tive universalism comes about through an acknowledgment of "concrete others" who are culturally and historically embedded in different traditions and histories. This is indeed a most necessary and pertinent corrective to a "substitutive universalism" where a masked culture masquerades as universalistic norms, and where a total abstraction from concrete histories makes the Other disap- pear as concrete entities, embedded in different, particular histo- ries. At the same time, there is still a danger that an overaccented notion of difference as the guarantee of human plurality may lead to a legitimation of all personal histories and disallow a move outside of tradition, of community, of inherited conditions which make up a person's sense of her own history-conditions which become the sole source of authentic meaning and value for her, outside of which there can only be a loss of identity.43 Where do we fit the politics of transformation into this scheme? History must not become de~tiny.~

NOTES

1. Simmons, Honorary Secretary, Public Health Society of India, to Chief Secretary, Government of Bengal, Calcutta, 1 Sept. 1890; Bengal Government, Judicial, NF JC/17/ Proceedings 104-17, June 1893.

2. Dainik 0 Samachar Chandrika, 14 Jan. 1891.

For legal reforms, see J.D.M. Derett, Religion, Law, and the State in India (London: Faber & Faber, 1968); also see Sir William Marby, Hindu and Mohammadan Law (Calcutta, 1906; reprint Delhi, 1977); Sripati Roy, Customs and Customary Law in British India, Tagore Law Lectures (Calcutta: Calcutta University, 1908-09).

For a more old-fashioned orthodox statement, see its presentation and refutation: Ramnath Tarkaratna, Opinion on the Garbhadahan Ceremony according to Hindu Shastras, Delivered to Govenunent, Calcutta, 1891.

Bangabashi, 21 Mar. 1891; RNP, Bengal, 1891.

Bangabashi, 28 Mar. 1881.

For a discussion of these arguments, see Tanika Sarkar, "Rhetoric against Age of Con- sent: Resisting Colonial Reason and Death of a Child-Wife," in Economic and Political Weekly 36,4 Sept. 1993: 1869-78; and "The Hindu Wife and the Hindu Nation: Domestic- ity and Nationalism in Nineteenth-Century Bengal," in Studies in History 7, no. 2 (1992): 213-37.

See H.H. Risley, Tribes and Castes of Bengal: Ethnographic Glossary, vol. 1 (1891; reprint, Calcutta: Mukhopadhyaya, 1981), xciii.

Bangabashi, 25 June 1887; RNP, Bengal, 1887. 10.See Sarkar, "Hindu Wife and the Hindu Nation."

%s suggests a modest and timid variant of Social Darwinism: instead of a race for survival through assertion of power over other nations, recommended here is a survival of the nation through the preservation of identity.

Imminent death as a dominant motif in cultural-nationalist discourses has been dis- cussed in the context of early-twentieth-century Hindu militant politics by P.K. Datta, Carving Blocs: Communal Ideology in Early-Twentieth-Century Bengal (New Delhi: Oxford University Press, 1999).

Dhumketu, 4 July 1887; Report on Native Newspapers, Bengal, 1887.

Risley.

See Charles Taylor, "The Politics of Recognition," in Multiculturalism, ed. Amy Gut- man (Princeton: Princeton University Press, 1994), 25-73.

Such safeguards to the privileged control of the community over intracommunal relations and decisions are recommended as a viable political alterative to uniform citi-

zenship notions by Partha Chattejee for present times as well. He also suggests com- plete freedom to communities for settling intercommunity relations and conflicts according to norms generated entirely within group ethics and without any recourse to universalistic reason. See Partha Chatte rjee "Secularism and Toleration," Economic and Political Weekly, 9 July 1994. For a critical reflection, see Sumit Sarkar, "The Decline of the Subaltern," in Writing Social Histo ry (Delhi: Oxford University Press, 1997), 82-108.

Colonized Indians were not citizens in any real sense. In 1890-91, they had not come to acquire even the most nominal representation in legislative bodies. At the same time, the state allowed self-governance in the realm of personal laws. Although those laws perpetuated the discipline of high-caste patriarchal norms, now even they were under considerable strain from public debates. See Jurgen Habermas, "Struggles for Recogni- tion in the Democratic Constitutional State," in Multiculturalism, 107-48.

This comes out very clearly in the first full-length autobiography in the Bengali lan- guage, Rashsundari Debits Amar liban (Calcutta, 1875). I have translated it and have incorporated the translation in my Words to Win! Amar liban, A Nineteenth-Century Auto- biography (New Delhi: Kali for Women, 1999).

Basantakumari Dasi, ]ositvigyan (Barisal, 1875), 2.

Education Gazette, 11 May, 1873; RNP, Bengal, 1873.

Dacca Prakash, 8 June, 1875; RNP, Bengal, 1875.

The Bengalee, 25 July, 1891.

Justice Wilson's charge to the jury in the case of Empress v. Hari Mohan Maitee, Calcutta High Court. Report sent by Acrar, Clerk of the Crown, High Court Calcutta, to Officiating Secretary, Government of Bengal, Calcutta, September 1890. Bengal Govern- ment, Judicial, J C/ 17/, Proceedings 90-102, 1892, Nos. 101-2, File J C/17-5.

Simmons, 1 Sept. 1890.

Ibid.

See, for instance, letters from F.R.S. Collier, District Magistrate, Midnapore, 4 Feb. 1891; D.R. Lyall, Commissioner, Chittagong Division, 5 Feb. 1891; E.E. Lowis, Chief Commissioner, Rajshahi Division, 3 Feb. 1891; H. Savage, Magistrate of Backergunje, 1 Feb. 1891; and many others, Files J 7A/2, Judicial, Political and Appointments Depart- ments, Judicial, 1891.

See especially, Ishan Chundra Mitra, Government Pleader, Hooghly, to the Chief Secretary, Government of Bengal, 2 Feb. 1891; Duaraka Nath Ganguly, Assistant Secre- tary, Indian Association, to Chief Secretary, 6 Feb. 1891; B.C. Seal, Sessions Judge of Bankura, to Chief Secretary, 6 Feb. 1891; Manomohan Ghose, Barrister and Advocate, Calcutta High Court, 6 Feb. 1891; and many others, ibid.

Bankimchandra, Kamalakanta (Calcutta, 1875); Jogeshchandra Bagal, ed., Bankim Rachanabali,vol. 2, Sahitya Sansad (Calcutta, 1954), 73.

Chandrakanta Basu, Garhasthya Path (Calcutta, 1887).

Description of a wedding in Sulabh Samachar 0 Kushadaha cited in Report on Native Papers.

For citation of many such views by the first generation of writing women, see Words to Win.

32. Dainik 0 Samachar Chandrika.

33. See Seyla Benhabib's discussion of Lawrence Kohlberg and Carol Gilligan in "The Generalized and the Concrete Other: The Kohlberg-Gilligan Controversy and Moral Theory," Feminism as Critique: On the Politics of Gender, ed. Seyla Benhabib and Drucilla Cornell (Minneapolis: University of Minnesota Press, 1987), 280-91.

Cited in Radha Kumar, The History of Doing: An Illustrated Account of Movements for Women's Rights and Feminism in India, 1800-1990 (Delhi: Kali for Women, 1993), 12,18.

I have discussed these writings in my Words to Win. See also Rosalind O'Hanlon, A Comparison between Women and Men: Tarakai Shinde and the Critique of Gender Relating in Colonial India (Delhi: Oxford University Press, 1996).

Rajendralal Mitra, cited in Hindoo Patriot, 25 Dec. 1890.

Bangabashi, 25 Dec. 1890, RNP, Bengal1890.

38. Dainik 0 Samachar Chandrika.

See Taylor.

See Partha Chatterjee, Nationalist Thought and the Colonial World: A Derivative Dis- course? (Delhi: Oxford University Press, 1993), 16, and The Nation and Its Fragments (Princeton: Princeton University Press, 1993).

Taylor.

42. Benhabib in Feminism and Critique.

The entire question of the nature of identity, which is most mortgaged a community discipline, has acquired a sinister aspect in the present Indian context. A militaristic and intolerant political formation-a variant of Hindu nationalism-has emerged as the domi- nant partner within the ruling coalition government at the center. A mass-front organi- zation of this party masterminds violent campaign against Indian Muslims and Chris- tians, arguing that these minority communities are the products of conversion away from Hinduism which is the sole authentic religion of the Indian people, the repository of the cultural identity. Any stepping away from this identity threatens the imminent loss of India's cultural distinctiveness. Conversion, therefore, is something that cannot be allowed to Indian people. See Sumit Sarkar, "Hindulva and the Question of Conver- sions," in The Concise Indian's Guide to Communalism, ed. K.N. Panikkar (Delhi: Viking, 1999).

For an excellent discussion of certain forms of universalisability, and of the prob- lems that arise when they are denied, see Martha C. Nussbaum, Introduction, and Martha Chen, "A Matter of Survival: Women's Right to Employment in India and Bangladesh," as well as Roop Lekha Verma, "Family Equality and Personhood" all in Women, Culture, and Development: A Study of Human Capabilities, ed. Martha Nussbaum and Jonathan Glover (Oxford: Clarendon Press, 1995), 373-61; 426-33.

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