The Legacy of Colonialism: Law and Women's Rights in India

The relationship between nineteenth century England and colonial India was complex in terms of negotiating the different constituencies that claimed an interest in the economic and moral development of the colonies. After India became subject to the sovereignty of the English Monarchy in 1858, its future became indelibly linked with that of England’s, yet India’s own unique history and culture meant that many of the reforms the colonialists set out to undertake worked out differently than they anticipated. In particular, the colonial ambition of civilizing the barbaric native Indian male underlay many of the legal reforms attempted in the nearly hundred years between 1858 and India’s independence in 1947. This Article looks at three areas of law reform in India affecting women’s rights that were closely modeled on reforms in English law: changes in age of consent laws, changes in widow inheritance laws, and changes in abortion laws. The first two occurred in the nineteenth century and the last in the twentieth century, post-independence, yet the changes in abortion law still bore indelible traces of colonial authority. We explore ways in which, despite the change in legal sovereignty, the colonial influences that characterized the unsteady alliances and interests between colonial rulers, native elite men, and British women infused the law reforms with patriarchal and colonial values. In particular, we argue that the custom of adopting English laws to deal with unique Indian situations, without understanding the different culture and history, meant that many of the reforms within India either promoted British interests or frustrated the interests of Indian women. This Article offers new insights by exploring the interplay of British feminists and activists in law reform movements that usually are studied only from the ∗ Visiting Scholar in the Center on Children and Families at the University of Florida Levin College of Law. ∗∗ Professor of Law at the University of Florida Levin College of Law. 1316 64 WASH. & LEE L. REV. 1315 (2007) perspective of colonial male rulers and native male elites. By focusing on the situation of Indian women and adding the perspective of British feminists, this Article highlights numerous ways in which colonial women undermined the reforms of their Indian counterparts.