Following independence for India, the postcolonial government led by Jawaharlal Nehru completed the codification and reform of Hindu Personal law, a process that had been begun by the British. According to the British policy of noninterference, reform of personal law should have arisen from a demand from the Hindu community. This was not the case, as there was significant opposition from various Hindu politicians, organizations, and devotees who saw themselves unjustly singled out as the sole religious community whose laws were to be reformed.[1] However, the administration saw such codification as necessary in order to unify the Hindu community, which ideally would be a first step towards unifying the nation.[2] They succeeded in passing four Hindu Code Bills: the Hindu Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act (1956), and Hindu Adoptions and Maintenance Act (1956).[3] These continue to be controversial to the present day among women’s, religious, and nationalist groups.[4]
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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 organize the Indian political system. Dr. Ambedkar drafted a Hindu Code bill, however most of its progressive provisions could not be adopted by the parliament due to orthodox thoughts to its opposition. As first law minister of India Dr. Ambedkar gave his resignation from the parliament as he could not implement this Hindu code bill in parliament.[5] However, they did not complete codification before granting India its independence in 1947, and this process was adopted and later completed by the postcolonial government under Jawaharlal Nehru.[6]
In 1946, India’s Constituent Assembly convened to devise a Constitution for the newly 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. Others insisted that personal laws were integral to the protection of India’s minority communities.[7] A compromise was reached in the inclusion in the first draft of an article that compelled the state ‘to endeavor to secure for the citizens a uniform civil code throughout the territory of India.’ This clause—which equated to a goal, not a right—became Article 44 in the Constitution. It was widely criticized by proponents of a uniform code because it contained no mechanism and provided no timetable for enforcement. However, Nehru and others insisted on its inclusion, arguing that though only symbolic it was an important step towards national unity.[8] 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.[6]
Nehru set out to modify Hindu Personal law, which he had long stated would b e a top priority of his administration. He quickly sent a draft of the Hindu Code that had been abandoned in 1944 by the British colonial government to the Ministry of Law for their advice and revisions. Dr. B. R. Ambedkar chaired the Select Committee which perused the Code and sent out a revised edition in August 1948. This edition had eight sections: part one delineated who would be considered a Hindu and did away with the caste system. Significantly, part one 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 VI concerned policies regarding women’s property, and parts seven and eight established policies on succession and maintenance.[9]
Ambedkar’s version of the Hindu Code conflicted with traditional Hindu personal law by allowing for divorce. Divorce had previously not been sanctioned by Hindu personal law, even though it was practiced by lower castes. It also “established one joint family system of property ownership for all Hindus,” 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.[9]
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 practiced Sikhism, Jainism, and Buddhism were considered to be Hindus under the jurisdiction of the Code Bill. While these had originally included aspects of Hinduism, by this time they had evolved into unique religions with their own customs, traditions, and rituals.[9]
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 marginalizing others.[10]
The draft that Ambedkar submitted to the Constituent Assembly was opposed by sections of lawmakers. The motion to begin discussion on the Hindu Code Bill was debated for over fifty hours, and discussion was postponed for over a year. Realizing that he would have to make significant concessions in order to get the Bill passed, Nehru split the Bill into different sections. He told the Constituent Assembly they would only contend with the first 55 clauses concerning marriage and divorce, while the rest would be considered by Parliament after the first general election. However, this compromise was largely ineffective in convincing conservatives to support the Bill. When only three of the 55 clauses passed after an additional week of debating, Nehru had Ambedkar’s Committee distribute a new draft that complied with many of the critics’ demands, including the reinstitution of the Mitakshara joint family system, an amendment to allow for brothers to buy out daughters’ share of the inheritance, and a stipulation allowing divorce only after three years of marriage.[11] However, after the Bills were defeated again in the Assembly, Ambedkar resigned. In a letter which he released to the press, he held that his decision was largely based on the treatment which had been accorded to the Hindu Code Bill as well as the administration’s inability to get it passed.[11]
In the next election, Nehru made the Hindu Codes Bill one of his top campaign initiatives, declaring that should the Congress Party win, he would succeed in getting it passed through parliament. Congress won sweeping victories, and he began a comprehensive effort to devise a Bill that could actually get passed.[12] Nehru separated the Code Bill into four separate bills, including the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act, and the Hindu Adoptions and Maintenance Act. These were met with significantly less opposition, and between the years of 1952 and 1956 each was effectively introduced to and passed by Parliament.[3]
Nehru’s primary purpose in instituting the Hindu Code Bills was to unify the Hindu community. Therefore, it made sense to define Hindu in the broadest possible sense. Through 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.[2] Nehru also felt that because he was Hindu, it was his prerogative to codify specifically Hindu law, as opposed to Muslim or Jewish law.[13]
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 Bill’s opportunity to implement greater rights for women, establishing that such rights were necessary for India’s development.[14]
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.[15] Before, 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 a minority, those who supported the Hindu Code Bills were modern and progressive and subsequently 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.[16]
The Hindu Code Bill’s 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. Advocates largely sought to convince the public that the Bills did not stray far from classical Hindu personal law.[17] Essentially, those in Parliament who opposed the Bills were men, and largely came 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.” [15] They also felt that should equal property rights be given to women, the Mitakshara concept of a joint family would crumble, as would the foundation of Hindu society. They also insisted that were daughters and wives 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.[15]
The Hindu Code Bills are still controversial among many communities, including women's, nationalist, and religious groups. At the time of their creation, many portrayed them as a serious deviation from Hindu legal precedent. However, now many, including Nivedita Menon, argue that it is "misleading...to claim that Hindu personal law was reformed [in the 1950s]. It was merely codified, and even that was in the face of stiff resistance from Congress leaders." [18]