The Hindu code bills
Introducation
The Hindu code
bills were several laws passed in the 1950s that aimed to codify and
reform Hindu personal law in
India. Following India's independence in 1947, the Indian National Congress government led by Prime Minister Jawaharlal
Nehru completed this codification and
reform, a process started by the British
Raj. According to the British policy of noninterference,
personal-law reform should have arisen from a demand from the Hindu community.
That was not the case, as there was significant opposition from various conservative
Hindu politicians, organisations and devotees; they saw themselves unjustly
singled out as the sole religious community whose laws were to be reformed.[1] However, the Nehru administration saw such codification
as necessary to unify the Hindu community, which ideally would be a first step
towards unifying the nation. They succeeded in passing four Hindu code
bills in 1955–56: the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship
Act, and Hindu Adoptions and Maintenance
Act. They continue to be controversial to the present day
among women's, religious, and nationalist groups.
Background
While there may be a
permanence of certain fundamental beliefs about the nature of life that is
pervasive through Hinduism,
Hindus as a group are highly non-homogenous. As Derrett says in his book
on Hindu
law,
"We find the Hindus to be as diverse in race, psychology, habitat,
employment and way of life as any collection of human beings that might be
gathered from the ends of the earth." The Dharmaśāstra the
textual authority on matters of marriage, adoption, the joint family,
minorities, succession, religious endowments, and caste privileges has often
been seen as the private law of the Hindus. However, whatever is known and
interpreted about this Hindu law is a jumble of rules, often inconsistent and
incompatible with one another, that are lacking in uniformity.
Hindu law's content and
structure has ultimately survived as a result of its administration by British
judges who gave a lot of attention to Hindu religious-legal texts, while
simultaneously invoking English procedure, jurisprudence, and English law to
fill any gaps. Opinions often differ as to the extent of the discrepancy
between the current law and the public's needs, but most agree that a
substantial inconsistency exists. The British colonial government administered
India largely through a policy of noninterference, allowing civil matters to be
dealt with through respective religious communities. Matters that fell under
the jurisdiction of these communities were called "personal laws."
The British began the intensive process of codifying Hindu personal law in the
early 1940s in an attempt to notate and therefore organise the Indian political
system.
In
1921, the British Government had already gone so far as to welcome individual
Members' efforts at piecemeal codification, a limited but significant shift in
policy. According to Levy, that year, "two Hindu legislators, one a
lawyer in the Central Legislative Assembly (the lower House), the other an
eminent scholar of Sanskrit in the Central Council of States (the upper House),
initiated resolutions seeking Government support for a Hindu Code of family
law." In the next two decades many such fragmentary measures were
enacted, modifying the Hindu law of marriage, inheritance, and joint family
property. As a whole, the enacted bills carried further a modest trend toward
increasing property alienability, reducing the legal importance of caste,
sanctioning religious heterodoxy and conversion and, most significantly,
improving the position of women. However, it was the passing of the Hindu
Women's Rights to Property Act (Deshmukh Act) in 1937, which had given the
widow a son's share in property that was one of the most substantial steps
towards the Hindu Code Bill.
Uniform civial code - In December 1946, the Constituent Assembly convened to
devise a Constitution for the soon-to-be-independent India. There were
extensive debates over the place of personal laws in the new Indian legal
system. Some argued that India's various personal laws were too divisive and
that a uniform civil code should be instituted in their place. And once the
notion of a uniform civil code was put forward, it soon became accepted as an
important part of the effort to construct an Indian national identity, over the
separate identities of caste, religion and ethnicity. Some resistance to
the code was on the grounds that its imposition would destroy the cultural
identity of minorities, the protection of which is crucial to democracy.
Certain feminists thus argue that the uniform civil code debate balances on the
polarity of the state and community, rendering the gender-based axis upon which
it turns, invisible.
A
compromise was reached in the inclusion in the first draft of an article that
compelled the state "to endeavour to secure for the citizens a uniform
civil code throughout the territory of India." The clause, a goal, not a
right, became Article 44 in the Constitution. It was widely criticised by
proponents of a uniform code because it contained no mechanism and provided no
timetable for enforcement. However, Prime Minister Jawaharlal Nehru and
others insisted on its inclusion, arguing that even if it was only symbolic, it
was an important step towards national unity . Though Nehru himself likely
would have favored a uniform code, he knew that personal laws were linked with
religious identity in India and therefore could not be easily abolished.
Recognizing that what he wanted was not a political reality, he settled for an
unenforceable clause
Beginning of
Codification
Initial
draft
In 1941, the colonial
government had appointed a four-member Hindu Law Committee, known as the Rau
Committee after its chairman B. N. Rau. The committee
was to resolve doubts about the Deshmukh Act's construction, ensure that its
introduction of new female heirs was not made at the expense of the decedent's
own daughter and consider bills introduced to abolish women's limited estate
and to make polygamy a
ground for separate residence and maintenance. Later in 1941, the Committee
reported that the time had come for a Hindu Code. Social progress and
modernization could only be achieved by fundamental reforms, which recognized
gender equality. The code was to be shaped with the aid of orthodox,
conservative and reformist Hindus and by a comprehensive blending of the best
of the current schools of Hindu law and the ancient texts.
The
1941 Report was accompanied by two draft bills, each of which was laid before a
select committee of both houses of the legislature. Much publicity was given to
the project, and as a result of the committees' reports, the Hindu Law
Committee itself was revived in 1944 and under its chairman, B. N. Rau,
prepared a Draft Code dealing with Succession, Maintenance, Marriage and
Divorce, Minority and Guardianship and Adoption. It was that Code that was
widely circulated and discussed and given the name "Hindu Code Bill".
After publication in twelve regional languages and a wide publicity campaign,
the Rau Committee toured the country and examined witnesses. The result 1947
report of the committee included and went far beyond the 1941 proposals,
recommending the abolition of the joint-family property
system, the introduction of the daughter's simultaneous succession with the son
to the father's estate, the abolition of the barrier to intercaste marriages,
the assimilation of civil and sacramental marriages, and the introduction of
divorce for the higher castes. It was
the intention of the government that this first draft should become law on 1
January 1948, but the whole project was temporarily suspended when independence
led to the priorities of the legislature to be consumed with the task of
creating the new regime.
By 1943, a significant opposition to the code had begun to develop
inside and outside the Legislature. In the 1943–44 legislative debate,
opponents and supporters alike accepted as fact the view that the majority of
the legal profession continued to support the code. Opponents tried to undercut
the perceived support by arguing that lawyers had become westernized or that
the merits of the bill were for the people to decide, not lawyers. Nehru
had already been forced to retreat from an original position of passing the
bill. However, his position greatly improved in 1951 when he succeeded Purushottam
Das Tandon as Congress
president. He chose not to test his combined powers as prime
minister and party president, in regard to the bill at that time and allowed it
to lapse. He, however, promised fellow supporters that he would campaign on the
bill, with plain arguments on the merits
Ambedkar draft
The Ministry of Law
revised the first draft in 1948 and made some small alterations to it, making
it more suitable for discussion in the Constituent Assembly, where it was
finally introduced. It was referred to a select committee under the
chairmanship of law minister B. R. Ambedkar, and the committee
made a number of important changes in the Bill. This edition had eight sections: part one delineated
who would be considered a Hindu and did away with the caste system.
Significantly, it stipulated that the Hindu Code would apply to anyone who was
not a Muslim, Parsi, Christian or Jew,
and asserted that all Hindus would be governed under a uniform law. Part two of
the bill concerned marriage; part three adoption; part four, guardianship; part five the
policy on joint-family property, and was controversial as it included the
nontraditional allocation of property to women. Part six concerned policies
regarding women's property, and parts seven and eight established policies on
succession and maintenance.[19] By allowing for
divorce, Ambedkar's version of the Hindu Code conflicted with traditional Hindu
personal law, which did not sanction divorce (although it was practiced). It
also "established one joint family system of property ownership for all
Hindus" by doing away with regional rules. Finally, it allotted portions
of inheritance to daughters, while giving widows complete property rights where
they had previously been restricted.
Conflicts also arose
from the categorization of who would be considered Hindu. The Code established
"Hindu" to be a negative category that would include all those who
did not identify as a Muslim, Jew, Christian, or Parsi. Such a broad
designation ignored the tremendous diversity of region, tradition and custom in
Hinduism. Those who practised Sikhism, Jainism, and Buddhism were considered
to be Hindus under the jurisdiction of the Code Bill. While they had originally
included aspects of Hinduism, by then, they had evolved into unique religions
with their own customs, traditions, and rituals.[19] There was also
significant controversy over what was established to be Hindu personal law.
Sanctioned under Hinduism were a variety of practices and perspectives.
Therefore, the administration had to arbitrate between these variations,
legitimating some and disregarding or marginalising others.
Intentions
As
Mansfield writes regarding the need for personal laws in India, "The
spectacle of large political entities in different parts of the world
collapsing and giving place to smaller entities based on ethnicity, religion or
language or combinations of these factors, rather than strengthening the idea
that a powerfully centralised, culturally homogenous nation is essential for
order and prosperity, may have confirmed for some the view that the pressing
task for India is not to increase central power and cultural homogeneity, but
to find an alternative to the 'nation-state'
model, an alternative that will sustain unity through some form of
'pluralism'."
Nehru's
primary purpose in instituting the Hindu code bills was to unify the Hindu
community.so it made sense to define Hindu in the broadest possible sense. By
legal equity, Nehru intended to "erase distinctions within the Hindu
community and create Hindu social unity.... The integration of Hindus into a
homogeneous society could best be done by enacting an all-embracing code which
encompasses within its fold every sect, caste, and religious
denomination."[2] The
debates over Article 44 in the Constitution revealed that many believed varied
laws and legal divisions helped create or at least were reflective of.social
divisions.[2] Nehru
and his supporters insisted that the Hindu community, which comprised 80% of
the Indian population, first needed to be united before any actions were taken
to unify the rest of India. Therefore, the codification of Hindu personal law
became a symbolic beginning on the road to establishing the Indian national
identity . Nehru also felt that because he was Hindu, it was his prerogative to
codify specifically Hindu law, as opposed to Muslim or Jewish law.l.j
Those in Parliament who supported the bills also saw them
as a vital move towards the modernization of Hindu society, as they would
clearly delineate secular laws from religious law. Many also heralded the
bills' opportunity to implement greater rights for women,
which were established to be necessary, for India's development.
Support and
opposition
During
the debates over the Hindu code bills in the General Assembly, large segments
of the Hindu population protested and held rallies against the bills. Numerous
organizations were formed to lobby for the defeat of the bills and massive
amounts of literature were distributed throughout the Hindu population. In the
face of such vocal opposition, Nehru had to justify the passage of the Hindu
code bills.[26] Earlier,
he had stated that in accordance with the policy of noninterference, he was
undertaking codification in compliance with a demand from the Hindu community.
When it became clear that the vast majority of Hindus did not support the
Bills, he insisted that though they were a minority, those who supported the
Bills were modern and progressive and
so held vital weight in the Hindu community, in importance if not in numbers.
He also argued that because the bill's supporters were progressive, those who
dissented would eventually change their position when confronted with the
realities of modernity.
Proponents
included both men and women within and outside of Parliament belonging to
various political parties. Significant support for the bills came from
Congress' women's wing (All-India Women's Conference) and several other women's
organizations. Supporters largely sought to convince the public that the bills
did not stray far from classical Hindu personal law. Essentially, those in
Parliament who opposed the bills were men, largely from Nehru's own Congress
party. They believed that the code bills would institute reform that strayed too
far from the classical Hindu social order and were too radical. They argued
that practices such as divorce were absolutely not condoned by Hinduism.
"To a Hindu the marriage is sacramental and as such
indissoluble." They also felt that should equal property rights be
given to women, the Mitākṣarā concept of a joint family would crumble, as would
the foundation of Hindu society. They also insisted that if daughters and wives
were given inheritance, more conflicts would arise within families. Their main
argument, however, was that the bills lacked public support. Therefore, they
were a direct contradiction to the policy of noninterference and would mean the
government was meddling in personal law. They implied that these were bills
propagated by a small minority of Hindus onto the majority who did not want
them.
