Debating Patriarchy: The Hindu Code Bill Controversy in India (1941-1956) [New ed.] 9780198078944

Table of contents :
9780198078944_prelims
9780198078944_Chap01
9780198078944_Chap02
9780198078944_Chap03
9780198078944_Chap04
9780198078944_Chap05
9780198078944_Chap06
9780198078944_Chap07
9780198078944_Biblio
9780198078944_Index

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Debating Patriarchy

Debating Patriarchy The Hindu Code Bill Controversy in India (1941–1956)

Chitra Sinha

1

1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and in certain other countries Published in India by Oxford University Press YMCA Library Building, 1 Jai Singh Road, New Delhi 110001, India © Oxford University Press 2012 The moral rights of the author have been asserted First published 2012 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer

ISBN 13: 978-0-19-807894-4 ISBN 10: 0-19-807894-3

Typeset in Sabon 10/12.1 by BeSpoke Integrated Solutions, Puducherry, India 605 008 Printed in India by Rakmo Press, New Delhi 110 020

To my parents Arun Kumar Sinha and Kabita Sinha for making me what I am today

TABLES AND FIGURES

TABLES 1.1 Literacy among Women in the Pre-Independence Period 2.1 Age Structure of Widows, 1921 3.1 Questionnaire of the Hindu Law Committee, 1941: Relevant Features 3.2 Schedule of Meetings of the Hindu Law Committee, 1945 4.1 Public Opinion on the Hindu Code Bill in India, 1945 4.2 Public Opinion on Monogamy as Law, 1945 4.3 Public Opinion on Divorce in Sacramental Marriages, 1945 4.4 Public Opinion on Daughter’s Share in Property, 1945 4.5 Public Opinion on Absolute Estate to Widows, 1945 4.6 Public Opinion on Abolition of Mitakshara Co-Parcenary Rights, 1945 7.1 Female Literacy Rate in India, 1901–2001 7.2 Women in Indian Politics, 1952–71 7.3 Work Participation Rates by Educational Status, 1994 7.4 Average Daily Earnings: Gender Disparity, 1994 (in Rs per day) 7.5 Desired Feminine Attributes in Matrimonial Advertisements, 2001

29 43 52 62 85 89 90 91 92 93 223 223 224 225 230

FIGURES 4.1 Support for the Hindu Code Bill in Indian Cities 4.2 Public Support for Monogamy, 1945

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4.3 Public Support for Divorce in Sacramental Marriages, 1945 4.4 Public Opinion on Daughter’s Right to Property, 1945 4.5 Public Opinion on Absolute Property Rights to Widows 7.1 Female Attributes in Matrimonials, 2001

90 91 92 230

ACKNOWLEDGEMENTS

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his book would not have seen the light of the day without the support and encouragement of many. To begin with, I would like to express my sincere gratitude to the New India Foundation for the book writing fellowship, which gave me the time, space, and financial freedom to concentrate on writing and completing this book. I would also thank Nandan Nilekani and Ramachandra Guha for their excellent initiative to support historical research on modern India. I especially thank Ramachandra Guha for his crucial insights on structuring and strengthening the manuscript at various stages. Useful suggestions from the advisory board of the New India Foundation, particularly André Béteille, Nirja Jayal, and Nandini Sundar, also enriched the work. Words cannot express my intellectual debt to Dr Ruby Maloni, with whom I have shared this journey all along. As my research supervisor during my doctoral work and later as a colleague in academia, Ruby has been a constant presence, and a sustained source of inspiration. I would also like to thank A.M. Bhattacharjee, former Chief Justice, Calcutta High Court, for his encouragement in the early stages of my research. Many colleagues gave useful suggestions over the years which, though not necessarily confined to the making of the present book, contributed immensely in the articulation of many issues as I drafted the book. Maithreyi Krishnaraj acted as a sounding board for many ideas as they crystallized, while M.D. David, Neera Desai, and Mani Kamerkar shared the wealth of experience in their possession whenever I approached them with ideas. I would also like to thank Narendra Jadhav for taking time out from his busy schedule at the Reserve Bank of India to meticulously review the section that dealt with Dr B.R. Ambedkar’s contribution to the

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Hindu Code Bill. An expression of gratitude goes to Julia Leslie for inviting me to the School of Oriental and African Studies in London to pursue further research in the area which never happened due to her untimely death. I forced Aloke Thakore to read an early draft of the book; thank you Aloke for your meticulous effort. Many ideas of the book became clearer thanks to the many sessions with Meena Gopal as colleagues at the Research Centre for Women’s Studies, SNDT Women’s University. I also take this opportunity to thank Jameela Mukhmeir of Royal University for Women, Bahrain for the long discussions regarding our shared concerns as women. There are many other friends and colleagues who have helped me in this journey through their criticisms and valuable comments. While it may not be possible to include all of them, I would like to mention those with whom I interacted at various conferences and workshops, particularly T.R. Ghoble, Inderpal Grewal, Mariam Dossal, Arun Tikekar, Amita Sen, S.V. Srinivas, Deepak K. Singh, Christine Littleton, Regina Lark, Sondra Hale, N. Narawade, M. Damle, S. Sriraman, and Amrendra Senger. A big thank you to each of you! I am especially obliged to the various institutions that provided support and allowed me to access their resources. I am grateful to the two premier women’s studies institutes in the world—the Centre of Study for Women at UCLA for supporting me as visiting fellow, and the Research Centre for Women’s Studies at SNDT Women’s University where I worked as an associate professor. Inevitable as it is in the life of a researcher in history, the dimly lit corners of libraries and archives played their part in my research. The research behind the book was made possible by the co-operation of librarians and staff of various libraries: the Libraries of the University of Mumbai, the Government of Maharashtra Archives, the Times of India Library in Mumbai, National Library of Kolkata, Visva Bharati University Library, Libraries at the University of California, Los Angeles and the University of California, Irvine, the Library of Congress, the University of Chicago Library for sending me Harold Levy’s dissertation on the Hindu Code Bill, the Asiatic Society of Bombay for providing access to newspaper articles and rare manuscripts, and the Siddharth College Library, Mumbai for the extraordinary collection of resources relating to Dr Ambedkar’s life and work. The editorial team at Oxford University Press demonstrated professionalism at every stage of the book’s publication. I would

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like to show my deep appreciation for their efforts and support during the publication process. Writing a book involves making difficult choices; balancing family and work is certainly one of them. More often than not, the family has to bear the brunt of the trade-off. My parents Arun Kumar Sinha and Kabita Sinha did what most parents would do—they supported me whenever possible, liberating me from the many, otherwise inescapable, duties at home. My two kids Stuti and Shlok stood eagerly and with amazement in front of the printer to collect pages and pages of the manuscript and provided the much needed stress-releasing interludes to the otherwise sombre atmosphere. Being a researcher himself, my husband Sunando realized what I was going through, and was firmly by my side through the thick and thin of production of the book. I expected no less from him. Kamal Kadam, our household help in Mumbai, provided invaluable support as I was trying to balance teaching, research, and motherhood in a cramped schedule. A tribute goes out to the vibrant city of Mumbai which, through its ability to smile and longing for life in the face of adversity, lifted my spirits and propelled me forward in tough times. Kingdom of Bahrain May 7, 2012

Chitra Sinha

INTRODUCTION

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he decade of the 1940s was a vital period in Indian history. The nation was bestowed with the unprecedented opportunity to transform itself as a modern nation. To build a new nation, a variety of economic, political, social, and cultural factors had to come to terms with each other. The vision of planned economic development and self-reliance within a curious mixture of socialism and capitalism led to the evolution of political structures within the ambit of a democratic set-up. As economic and political forces reconfigured themselves to contribute towards the emergence of a progressive economy, the cultural milieu also experienced the need for alignment with the aspirations of an emerging nation. The protracted debate over the Hindu Code Bill with widespread participation across all regions and segments of the Indian society between 1941 and 1956, known as the Hindu Code Bill debate, epitomized the necessity of the society to strike an alliance with the forces of modernization. Customary Hindu laws, frozen in religious beliefs of centuries, came to be challenged by the egalitarian, secular structure envisioned by the leaders of the modern Indian nation. The extensive Hindu Code Bill debate, in both public and legislative spheres, was of momentous importance to the entire project of carving a new, secular India. It was the debate that contributed to the family law reforms that influenced, to a great extent, the distribution of power and resources within the society, particularly at a granular level, within the family and enabled Indian society to align with the planned economic progress and modernization. The effort at codification of Hindu law was, however, aimed at a variety of outcomes. It attempted to create a unified legal framework that provided justice to the Hindu community in an egalitarian fashion, while trying to foster a framework that allowed women the space to operate freely and contribute to the economic prosperity of the nation. The Hindu Code Bill also sought to remove

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discrimination towards the backward castes within the Hindu fold and in that process diminished the influence of religion in the public sphere. At the same time, it was undoubtedly a celebration of notions of freedom and individualism over the structured sense of destiny propagated for many centuries in the name of religion. The debate and its outcome thus had enormous impact on a society in transition, not just through the imposition of a set of family laws, but also through the communicative processes that contained in them the potential for liberating the Indian mind from deeply embedded notions of patriarchy, allowing for a broader role of women in social development. The impact of the Hindu Code Bill thus extended far beyond the immediate influence of the set of family laws passed in 1955 and 1956. The debate contributed significantly to the creation of the modern Indian social psyche. The timing of the debate coincided with a period of immense historical significance. Much of the achievements of modern India can be traced back to the initiatives and events of this phase. The period marked a time of transition in all spheres of life—political, economic, social, and cultural. Indian society underwent a major metamorphosis during the 1940s and 1950s—attainment of freedom from British imperialism in 1947, the consequent redefinition of the economic priorities of the State through adoption of a socialist pattern of growth and the process of planning beginning in 1951, large-scale efforts towards industrialization since the mid-fifties and an expanded role of the State in all spheres of economic activity, linguistic reconfiguration of the States within the broader federal structure, accession of Princely States, the new Constitution of India and the first general elections in 1952. At the same time, there was also a thrust towards acceptance of broad secular principles in a pluralistic society in the wake of one of the worst horrors in the name of religion, the communal riots during partition of the country into India and Pakistan. The codification of personal laws of religious groups of India became the focal point of this process of modernization and secularization of society. The key initiative in the area was the Hindu Code Bill that propelled the nation to debate and discuss the codification of Hindu personal laws over the 1940s and 1950s. The centrepiece of the reform of Hindu law during the period was, without doubt, the protracted debate over the Hindu Code Bill. By seeking to weed out practices that were obsolete in the

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contemporary social milieu and by trying to frame a uniform set of rules that could govern all Hindus through the length and breadth of India, the Hindu Code Bill came to be regarded as a revolutionary legislative initiative for the Hindu community in India. The seeds of the Hindu Code Bill were, however, sown much earlier. The need to reform the Hindu legal system became very clear to the British by the end of the eighteenth century, when the British policy of non-interference with customary laws met with difficulties of implementation at the ground level. While introducing their legal system in the administration of the country, the British faced difficulties in accommodating the plethora of Indian customary practices within the rational structure of British jurisprudence. The British colonial rule tried to evade much of it through its policy of non-intervention in customary practices of religious communities of India. Despite such strategic positioning, their legal structure assumed a very complex character over time. Left out of options, the British administration in colonial India decided to act in a consensual manner. In the late eighteenth century, with the initiatives of Warren Hastings and William Jones and with the aid of renowned pandits, the British administration attempted codification of customary laws. Purely an administrative initiative, this did not attempt radical changes and, therefore, did not antagonize the Hindu community. More than a century later, the Montague-Chelmsford Report of 1918 and the Government of India Act of 1919 ushered in a new era in the Indian legislative initiative. The resulting reforms granted the legislature the power to review and reform social legislations as part of the broader objective of the gradual development of self-governing institutions within the British Empire. In 1921, the need for codification of Hindu law was debated in the legislature comprising representative Indians, with limited political participation. The Congress Party members did not participate in the discussions on Hindu law reform in the legislature due to their involvement in the non-cooperation movement. At the same time, the women’s movement in India was in its infancy and did not have a strong representative platform to voice their opinion. As a result, the 1921 debate was a lawyer’s debate, without much social participation. The development of two interrelated and mutually reinforcing forces influenced the Hindu Code Bill controversy in the 1940s and 1950s. First, the growth of the Indian national movement

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necessitated a reconfiguration of women’s role in society by bringing women out of their traditional roles at home and questioning, among others, the legal rights and the relevance of the set of family laws prevalent at that time. Second, and related to the first, the women’s movement, with its epicentre in Bombay, gathered momentum in the early twentieth century, pressing relentlessly for legislative reforms. While in the late nineteenth century reforms were initiated by social reformers, the central rallying force behind the twentieth century legal reforms was women’s organizations. By the 1940s, the need for accommodating the diversity of customary practices within the legal framework emerged in judicial decisions relating to property rights. The Hindu Law Committee of 1941 that was originally constituted to look into contradictions in property rights, felt the need instead for a complete codification of Hindu law. Their recommendations led to the reconstitution of the Hindu Law Committee, this time to develop, as far as possible, a comprehensive codification of the Hindu customary laws in a consistent manner. The major areas of concerns of the Hindu Code Bill were rights relating to marriage, property, inheritance, adoption, maintenance, and guardianship. Compared to the earlier initiatives of codification of Hindu laws during the late eighteenth century and the early twentieth century, the proposed Hindu Code Bill had a significant progressive content with enhanced thrust on gender equality in India. By the 1940s, the women’s organizations had made their presence felt in the sociopolitical space. The issues of divorce, monogamy and property rights to daughters and widows had already been brought to the fore by them. The support of the liberal faction of national leadership and women’s organizations contrasted sharply with the views of patriarchal orthodoxy that bitterly opposed the provision of divorce, introduction of monogamy, and changes in property rights. The debate over the Hindu Code Bill was broad based and transcended the narrow domains of the lawyers. The communication surrounding the Hindu Code Bill in the 1940s encompassed a large section of the nation. The communicative process was far more intense and inclusive than the 1921 debate which was primarily a debate in the legislative domain among lawyers. The deliberation over the Hindu Code Bill in the 1940s saw the participation of social associations, religious bodies, legal associations, and women’s organizations from many parts of undivided India. The discourse surrounding the Hindu Code Bill, therefore, provides an

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ideal platform to understand the formative process of family laws in independent India. The Hindu Code Bill debate was also a social debate centering on notions of tradition and modernity. The Hindu Code Bill laid the foundation for establishing a benchmark for a modern construction of the family and the feminine in Indian society. The legislative debates, official reports and newspaper content during the stages of evolution of the Hindu Code Bill confirm that issues surrounding the structure of power in Hindu family and the social construction of gender roles came to be discussed extensively in the debate over the Hindu Code Bill. A proper understanding of the nature of the debate and its relation with the process of transformation of feminist consciousness in the country is vital to develop a proper understanding of the historical relevance of the Hindu Code Bill.

TOWARDS A HISTORY OF THE HINDU CODE BILL For the student of Indian social history and the status of women, there cannot be a historical document more relevant than the Hindu Code Bill. On all counts, the passage of the Bill and the associated debate was intense, being referred to, circulated, and translated into several languages. Deep-rooted patriarchal notions came to be strongly contested within and outside legislature, in street demonstrations, and public meetings as also in the press. The communicative processes surrounding the Hindu Code Bill were extremely vibrant, owing to the fortuitous constellation of a large number of social forces that contributed to the transformation of the Indian socio-political scenario at that time. It is surprising, therefore, to see the extent of neglect faced by the Hindu Code Bill from social historians, as evidenced by the lack of authentic documentation and analysis and a literature inversely proportional to its vast influential character. In the hunt for secondary sources on Hindu Code Bill, one comes across what may be termed as explanatory literature, published during the Hindu Code Bill debate or immediately afterwards, to explain to the non-professional layman what the law is about. These works essentially were works of lawyers or legal experts. Three major books were published between 1950 and 1957, explaining the broad provisions of the Hindu Code Bill. The first available explanatory work was by T.K. Tope and H.S. Ursekar, Why Hindu Code? (A historical, analytical and critical exposition of the Hindu Code Bill), published in 1950 by the Dharma Nirnaya

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Mandal of Poona. This work discussed the sources and evolution of Hindu law, shortcomings of the present system of Hindu law, and developments in the legal sphere after the Hindu Women’s Right to Property Act, 1937. The second contribution to the explanatory literature is Justice Prahlad Balcharya Gajendragadkar’s book, The Hindu Code Bill, based on his two lectures delivered under the auspices of Karnataka University, Dharwar on April 12–13, 1951.1 The third exposition came from John Duncan Martin Derrett in his book Hindu Law: Past and Present published in 1957.2 Derrett undertook a study of the Hindu Code Bill that was neither too superficial nor too detailed, to aid the common man eager to understand its implications.3 The second category of writings on the Hindu Code that one encounters may be termed as analytical reviews, which started with John Duncan M. Derrett’s book, Religion, Law and the State in India, published in 19684 and Harold Levy’s Indian Modernization by Legislation: The Hindu Code Bill. Essentially, these books present the Hindu Code Bill as an outcome of a debate between the secular, modern intelligentsia and the orthodox, traditional segments of the society. The law is broadly seen as a tool for social modernization, and a mechanism through which the State promotes progressive elements in the legal space. There have been other analytical reviews of Hindu law reform in general, which have also looked, at times quite sketchily, at the Hindu Code Bill. Angeles J. Almenas Lipowsky, in The Position of Indian Women in the Light of Legal Reform5, surveyed the position of Indian women after Independence, by looking at legislative changes and their implementation. She observed that there was hardly any direct linkage between legal reforms and the status of women within the family. Her study thus supported the major 1 Justice P.B. Gajendragadkar, The Hindu Code Bill, Karnataka University Extension Lecture Series, No. 2, Karnataka University, 1951. 2 John Duncan Martin Derrett, Hindu Law: Past and Present: Being an account of the controversy which preceded the enactment of the Hindu Code, the text of the Code as enacted, and some comments thereon, A. Mukherjee, Calcutta, 1957. 3 Ibid., Preface, p. i. 4 John Duncan M. Derrett, Religion, Law and the State in India, The Free Press, New York, 1968. 5 Angeles J. Almenas Lipowsky, The Position of Indian Women in the Light of Legal Reform, Franz Steiner Verlag, Wiesbaden, 1975.

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contention of the government-sponsored report, Towards Equality in 1974, that there was no substantial improvement in the status of women since Independence.6 Jana Matson Everett, in Women and Social Change in India,7 published in 1979, recorded the role played by the all India women’s organizations and women leaders in their struggle for legislative reforms.8 She briefly looked at the Hindu Code Bill and its impact on implementation of laws for women in independent India. This essentially empirical approach saw further refinements in the works of Archana Parashar, Women and Family Law Reform in India,9 and Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India.10 The third strand of work on the Hindu Code Bill may be categorized as accounts of feminist activism. Among the first-generation Indian feminist leaders, Kamaladevi Chattopadhyay’s Indian Women’s Battle for Freedom11 and Pratima Asthana’s Women’s Movement in India dealt cursorily with the Hindu Code Bill.12 Several reasons can be advanced as plausible explanations for this neglect of the Hindu Code Bill by researchers. First, the historian’s obsession with political history and neglect of its socio-cultural dimensions contributed initially to a lack of focus on social history. When social history really gained momentum in India, family law was considered a settled issue with not much interest in its historical aspects. With the four pillars of Hindu family law looming large on the Indian horizon, they were treated as benchmarks rather than as objects of analysis in social research. The analysis of the Hindu Code Bill, while not altogether absent, was mainly conducted from a legal perspective and not necessarily a historical perspective. 6 Government of India, Towards Equality, Report of the Status of Women in India, Ministry of Education and Social Welfare, New Delhi, 1974, p. 297. 7 Jana Matson Everett, Women and Social Change in India, St. Martin’s Press, New York, 1979. 8 Ibid., pp. 141–89. 9 Archana Parashar, Women and Family Law Reform in India, Sage Publications, New Delhi, 1992. 10 Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India, Oxford University Press, New Delhi, 1999. 11 Kamaladevi Chattopadhyay, Indian Women’s Battle for Freedom, Abhinav Publications, New Delhi, 1983. 12 Pratima Asthana, Women’s Movement in India, Vikas Publishing House, New Delhi, 1974.

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The lack of historical research has been compounded by a lack of general writings on the subject. Leaders and politicians like Jawaharlal Nehru who were very much part of the Hindu Code Bill could not devote attention and time to write on the Bill as they were intent upon guiding the country from abysmal poverty towards self-sufficiency. Mahatma Gandhi did not live to see the enactment. Ambedkar, the engine behind the Bill in the legislature, was in poor health in the early fifties before his death in 1956, and could not really reflect on the Code. Jawaharlal Nehru mentioned the Bill sporadically, in his letters to chief ministers and others, and got himself involved in planned development, thinking, not very wrongly, that the legal reforms were positioned on a self-sustaining path. The women’s organizations, who were deeply interested in the Hindu Code Bill, for they were the principal beneficiaries of its success, moved on to the next project that mattered in their ongoing struggle for gender justice. Moreover, the close association of women’s movement and the Congress Party led to many women leaders becoming part of the government machinery. As the women leaders were also politically active, the memoirs of women leaders at that time are weighed more towards political and not legal history, understandably so, overwhelmed as their memories were, with the momentous historical changes that they were seeing around themselves. The legislations that formed the basis of the social organization of the majority Hindu community in modern India were left in the legal domain and the intense controversy that surrounded the creation of the Bill was gradually erased from public memory. Modern India thus slowly forgot the crucial pillars that created the base for its elevation and growth, and the Hindu Code Bill remained a largely neglected piece of social history. This book is an attempt to fill this gap in Indian social history by providing a detailed account of the emergence and evolution of the Hindu Code Bill and the debates surrounding it. It attempts to provide a thorough analysis of the family law reforms in India in the early stages of evolution of the nation, and in doing so, it assesses the influence of the Bill on modern India. The drawbacks of the Hindu Code Bill have generally been highlighted in whatever little commentary is available. Based on empirical rationality and with the aid of data on implementation of the law in independent India, the existing literature on the Hindu Code Bill converged on the argument that in practice, the Hindu

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Code Bill failed to produce a major impact on the lives and status of Indian women. The progressive elements of the legal reform largely remained in the statute books, and at the level of implementation, one could only see continuation of the existing practice propagated by the Hindu orthodoxy. The process of implementation was not smooth and the feminists of modern India were dismayed by the inability of legislation to bring immediate transformation in the lives of Indian women. The present book attempts to broaden the above approach by looking at an expanded role of law in social transformation, where law, even when not implemented in practice, works through transformation of social consciousness. Slowly, but steadily, law emancipates the public mind and works towards the liberation of society and promotion of gender justice. The book draws attention to the fact that since the debate surrounding the Hindu Code Bill was inclusive in nature, providing a large cross-section of Indian population with a voice and scope to express their opinion during the process of law formation, the debate created social awareness on key issues of the Hindu Code Bill. It stirred the social consciousness and helped society to construct and form its opinion on crucial social issues. By being inclusive and communicative in nature, the Hindu Code Bill debates of the 1940s and 1950s contributed significantly in influencing the modern Indian mind. The principal aim of this book, therefore, is to ‘revisit’ the Hindu Code Bill debate as a communicative process and to find its lasting imprint on the social psyche of modern India.

THEMES OF THE BOOK The seven chapters presented in the book attempt to weave three major themes relating to the Hindu Code Bill into a single thread of argument. The schematic structure of the work seeks to capture, first, the forces that contributed to the vibrancy of the debate; second, the focal issues and social forces that propelled and structured the debate in the 1940s and 1950s; and third, the influence and relevance of the Hindu Code Bill controversy in modern India. In the book, the evolution of the Hindu Code Bill during 1941–56 has been seen as an outcome of evolution of historical forces. Not only does the book pay attention to the history of the Hindu Code Bill debate, it also tries to trace the echoes that continued to influence gender consciousness over decades after the enactments.

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The first two chapters of the book are devoted to the development of the historical context of the Hindu Code Bill debate. While the first chapter of the book focuses on the role of discourse and communicative action in the advancement of gender rights over several centuries, the second chapter concentrates on social, political, and legal factors that led to substantive reform efforts in Hindu law during the twentieth century. The first chapter explores the lack of debate on women’s rights in pre-colonial India dominated by religious discourse and the transformation during the colonial era brought about by the emergence of alternate discourses including an orientalist perspective, the views of social reformers, and the rise of feminist consciousness. The chapter also dwells upon the crystallization of an Indianized form of patriarchy and the challenge provided by the early debates on women’s rights that began in the eighteenth century and continued till the codification of Hindu law in the 1950s. The second chapter attempts to provide a historical perspective to the evolution of Hindu law. Looking at the historical process of codification of Hindu law in India, it annotates the dynamic interaction among a wide variety of social forces that created the historical context to the Hindu Code Bill controversy. The chapter tries to show that the Hindu Code Bill did not emerge out of a ‘historical vacuum’. Rather, it was shaped by a constellation of forces such as the growth of the women’s movement, necessities of the nationalist struggle and the need for legal reforms in the first half of the twentieth century. The chapter records the efforts of the women’s movement in India, the attainment of women’s franchise, and the influence exerted by the intensification of the Indian national movement that forced women to come out of their domestic confines and join their male compatriots. The nationalist struggle created the space for a wider role for women outside the family and helped in transforming the general social perception of women’s role in society. At the same time, the British policy of non-interference with Hindu law met with certain ground difficulties while implementing customary practices. Thus, internal inconsistencies within the legal system coupled with external realities necessitated modification of the laws relating to women since the 1920s. The narrative tries to link these diverse developments by a common thread to demonstrate the historical context of the debate over the Hindu Code Bill.

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The third chapter of the book discusses the specific stages of evolution of the Hindu Code Bill. The effort here is to collate the facts and available historical evidence regarding the evolution of the Hindu Code Bill. Such documentation is necessary to fully appreciate the ideological underpinnings of the discourse over the Hindu Code Bill during 1941 to 1946. The chapter begins with the process of codification of Hindu laws in the 1920s, immediately after the Montague Chelmsford reforms. It traces the debates over Hindu legislative reforms in the 1920s and 1930s. It proceeds to discuss the growing social discontent over the Hindu Women’s Right to Property Act of 1937 that led to the constitution of the Hindu Law Committee in 1941. The chapter also discusses the recommendations of the first Hindu Law Committee, the reconstitution of the Committee in 1944 with the mandate to frame a Bill to codify Hindu law. This was followed by a largely contentious public debate and subsequent reference of the Bill to a Select Committee of Parliament in 1948. The chapter finally narrates the developments that resulted in a dilution of the original Code, so zealously pursued by Ambedkar as Law Minister until his resignation over the delay in passing the Bill in October 1951. An analysis of the debate on gender rights that encompassed the Hindu Code Bill in the 1940s and 1950s in the public sphere is presented in the fourth chapter. The conflict between a liberal feminist consciousness and a traditional patriarchal ideology is analysed through an assessment of the available discourse relating to various issues raised over the Hindu Code Bill in the 1940s and 1950s. A key focus of the chapter is the interaction of the public sphere with the official sphere, when the Hindu Law Committee met the public representatives in Bombay, Poona and in several other cities of India in 1944 and 1945. The chapter also scans media reflections and reactions to understand the nature of the debate in the public sphere. It addresses the efforts of women’s organizations, social reform organizations as well as conservative religious groups and opinion leaders. A critical focus is also given to the Note of Dissent submitted by Dwarkanath Mitter, a member of the Hindu Law Committee, where he substantiated that public opinion in India was largely against the Hindu Code Bill, based on the evidences collected by the Hindu Law Committee. Mitter’s evidence provides vital input in understanding public opinion on the Hindu Code Bill in the 1940s.

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Alongside the communicative processes in the public sphere, the Hindu Code Bill entered the legislative domain in a significant way in 1948. The fifth chapter reviews the nature of the debate that took place in the political sphere over the Hindu Code Bill. Based on the records of legislative debates, the account narrates the patriarchal and feminist concerns in the legislature. It probes the debates that took place between the liberal forces, the conservative segments, and the viewpoint of women legislators. A central focus of this segment is on the involvement of B.R. Ambedkar and Jawaharlal Nehru in the debate over the Hindu Code Bill. While the correspondance between the two is crucial to the understanding of the process of communicative action in the legislature, it also revealed that even within the Congress Party, as also in other political parties, a unified feminist consciousness failed to emerge. Rather, polarized views of gender rights existed within political parties including the Congress, thus giving credence to the observation that the debate over the Hindu Code Bill was one that was ruled by consciousness and ideology, instead of political affiliations. The chapter also attempts to explain the intensity of the debate by looking at two counteracting forces, the convergence of interests of the Congress’ liberal modernization project and the demand for institution of legal rights by women’s organizations on the one hand and the strong undercurrents of patriarchal orthodoxy on the other. The process of culmination of the debate in the political sphere, tracing the developments relating to the Hindu Code Bill during 1952 to 1956, is dealt with in the sixth chapter of the book. This phase marks the final passage of the Bill in the form of five enactments spanning the period 1954 to 1956. The account of the discourse over the Bill presents the tensions and undercurrents of a society in transition and the conflict between tradition and modernity. The seventh chapter assesses the contribution of the Hindu Code Bill to gender conciousness in independent India. Contrary to the existing perception that the Hindu Code Bill in its diluted form failed to create a significant impact on modern Indian society, the analysis tries to capture the lasting imprint of the Hindu Code Bill on the modern Indian mind. With the help of theoretical tools and empirical analysis, the section locates the significance of the Hindu Code Bill controversy in independent India. It attempts to demonstrate that not only did the Hindu Code Bill provide

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the benchmark for the second wave of feminist activism in India in the 1970s and 1980s, it also shaped much of the subsequent legal debates surrounding the proper implementation of Hindu laws. Discussing some of the important campaigns of the women’s movement in the 1970s and 1980s in conjunction with the role of the State in modern India, the chapter argues that even in its truncated form, the passage of the Hindu Code Bill was influential in shaping the gender consciousness in independent India and thereby impacted the process of law formation over the longer term. This concluding section also argues that the 1940s and early 1950s were a period of transition not just in the socio-economic sphere, but also in the sphere of consciousness, when a new image of the feminine confronted the old traditional stereotype. The debate over the Hindu Code Bill provides an ideal historical context to analyse the transformation in gender ideology of Indian society and the process of communicative action that nurtured and facilitated the growth of feminist consciousness in modern India.

1 CONTESTING PATRIARCHY The Early Years

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ndia’s democratic environment and tradition of public reasoning have contributed significantly towards developing a robust legal foundation for gender empowerment, although the argumentative foundation did not necessarily translate into gender equality with respect to other proximate indicators. It is all too well known that when it comes to gender development indicators, India as a nation is often placed at the bottom of international rankings. Low per capita income relative to average global income has deprived a sizeable section of Indian women of basic necessities of life. Consequently, India has fared poorly with respect to demographic and health-based indicators of gender development such as female maternal mortality, age of marriage, school enrolment, and literacy rate. Paradoxically, relative poverty did not constrain India’s significantly superior performance relating to social and legal empowerment. Social empowerment indicators that responded positively to the enabling framework created by the existence of democracy included, among others, institution of voting rights, creation of significant educational opportunities for women, enactment of enabling family laws and the presence of women in workforce and governance in the country. While still behind their male counterparts, Indian women have fared distinctly better than many developing nations in terms of development of institutional infrastructure for gender development.1 1 Joni Seager, The Penguin Atlas of Women in the World, Penguin, London, 2009.

Debating Patriarchy. Chitra Sinha. © Oxford University Press 2012. Published 2012 by Oxford University Press.

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The disparity between the institutional indicators and demographic indices has existed ever since India’s Independence. The Report of the National Committee on the Status of Women in India observed, ‘The social status of women in India is a typical example of this gap between the position and roles accorded to them by the Constitution and the laws, and those imposed on them by social traditions. What is possible for women in theory, is seldom within their reach.’2 This explains why post-Independence feminist movements in India, particularly since 1970s, have focussed on implementation of the legal reforms for women in the 1950s. Amartya Sen has explained this as an outcome of the growth of gender consciousness and the progress achieved in instituting gender rights, both of which were influenced and enriched, along with other factors, by the argumentative tradition of India.3 Indeed, women’s struggles against patriarchy in India were laced with a seamless sequence of communicative processes over the last three centuries.4 Since the early nineteenth century, debates on women’s issues evolved and thrived around the world with the rise of feminist consciousness. In the Indian context, the debate revolved around interpretations of modernity and tradition and creating spaces for women within the extant politico-economic and socio-cultural contours of a nation in transition. Shastric traditions, which shaped the basis of social organization of the Hindu communities, formed the basis for these debates. It is of critical import to note the overwhelming dominance of religious 2 ICSSR, Status of Women in India: A Synopsis of the Report of the National Committee on the Status of Women (1971–74), Allied Publishers, New Delhi, p. 13. 3 The contributions made by India’s argumentative tradition to its intellectual and social history has been highlighted by Amartya Sen in his book, The Argumentative Indian: Writings in Indian History, Culture and Identity. Sen notes that developing a society based on deliberation and reasoning is a momentous task and ‘is made easier by the long history and consummate strength of our argumentative tradition, which we have reason to celebrate and defend.’ In Amartya Sen (ed.), The Argumentative Indian: Writings in Indian History, Culture and Identity, Allen Lane, 2005. 4 The concept of patriarchy defied conformation to a unified definition across time and space. Accordingly, feminists have provided a universal though not necessarily uniform structure to explain male domination within and outside the family, centering on the definition of patriarchy. Patriarchy in India also evolved in its own unique characteristics, often referred to as ‘brahmanical patriarchy’. In fact, the upsurge of research on feminist issues over the past two decades in India has been anchored on deep seated notions of patriarchy as shaped and defined by the brahmanas.

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discourse in India over centuries and try to understand the absence of alternate contesting discourses within Hindu communities. The present chapter, therefore, is divided into two parts. In the first section, we shall navigate through available information in the sources of the vedic and post-vedic periods to understand the reasons behind the universal dominance of religious discourse in Hindu communities resulting in the absence of debates on gender issues prior to the colonial rule in India. In the second part of the chapter, our attention will be on the evolution of communicative processes surrounding gender issues in the colonial era.5 Looking beyond the short-term determinants of gender justice, the chapter explores the long-term correlations between gender discourse and attainment of gender rights. The chapter suggests that the application of India’s argumentative tradition goes a long way to challenge deeply entrenched patriarchal consciousness and create conditions that promote the formation of the legal basis for gender rights. Communication, particularly discourse in the public domain in a representative form, the chapter argues, possesses the power to transform women’s rights.

RELIGIOUS TRADITION AND GENDER DISCOURSE Over centuries, religion provided the basis for morality in Hindu society and played an instrumental role in assigning the role for women within the family. Historical evidence available till date suggests that women’s rights within and outside the family was powerfully interlinked to the religious practices in Hindu society.6 5 While discussing the colonial era, the focus is on the Bombay Presidency in western India—where staunch orthodoxy co-existed with a pulsating and dynamic women’s movement to make the discourse invigorating and the interactions between diverse social forces easily discernible. 6 Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India, Oxford University Press, New Delhi, 1999, p. 13. Agnes observes that Hindu society was rather diverse and unstructured in character, as communities practised diverse norms of marriage, divorce and ownership of property. Given the variety, it became extremely difficult to situate the representative Hindu. The term ‘Hindu’ has been traced by some scholars to the term Indoi, used by Greeks to denote the inhabitants of the Indus valley. The first known use of the word was by Krishnadevaraya II in a plate Satyamangala in 1424 AD. The Portuguese referred to the ‘natives’ as Gentoos that is derived from the word gentiles, indicating nonbelievers. The initial regulations of the East India Company also used the same expression to denote non-Muslim natives.

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Among the Hindus, in the pre-colonial era, religion and law were related through diverse local customs administered by caste councils or village panchayats.7 These village panchayats carried out the task of regulating civil life and family affairs. There were several religious sources that were usually cited for the purpose of social administration. They were shruti (the divine revelations or utterances, primarily in vedas), smriti (the memorized word—the Dharmasutras and the Dharmashastras) and sadachar (good custom). From around eighth century BC to fifth century AD guidelines governing all aspects of social relations were laid down in the smritis. The Dharmashastra literature covered all aspects of law, ethics and morality. These were works of vast scope and covered a wide range of topics enveloping social obligations and duties of the various castes and of individuals in different stages of life. One can also find religious guidance on codes of social behaviour between men and women of different castes, as well as between husbands and wives, fathers and sons and family members within the domestic sphere, rituals of birth, death, and marriage.8 These were not written texts and the knowledge was passed on by an oral tradition from generation to generation, leaving the scope of texts being re-interpreted in different social contexts across time and space. Gender discourse in early India, during both vedic and postvedic periods, was overwhelmingly dominated by religious texts, and lacked alternative discourses that challanged the religious perspective. The religious texts reflected a gradual degeneration of status of women in Indian society. During the vedic period (extending roughly from 2500 BC to 1200 BC), the position women enjoyed was one of respect and dignity, as it tends to appear from the limited sources available. In fact, the existing evidence from the vedas leads to a broad consensus that educational opportunities were not restricted to the male members of society in the early years of Indian civilization. Visveswara, Apala, Lopamudra, Shashiyasi, and others prove that women were not denied the right to education. Women used to learn the vedas, became teachers, composed hymns and were respected for their intellectual capabilities. Radha Kumud Mukherjee observed, ‘the Rigveda shows abundant evidence pointing to the fact that women were fully equal to men, as regards 7 Termed variously as kula (family or tribe), shreni (artisan’s guilds) and puga or gana (assembly or association). 8 Ibid., pp. 12–13.

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access to and capacity for highest knowledge, even the knowledge of the absolute or Brahma’.9 In Panini’s Grammar (500 BC), several passages show that women had career options open to them apart from literary ones. D.D. Kosambi has pointed out that several sources in ancient India reflected the proficiency of women in weaving and pottery.10 Patanjali’s Mahabhasya (150 BC) and Kautilya’s Arthashastra (300 BC) revealed that women were also soldiers. Women attended fairs and festivals; they could meet strangers and enjoyed reasonable freedom in society. Within the inner courtyards of the family, women seemed to have considerable freedom of choice. Marriage was regarded as a sacred religious union. Being of divine dispensation, it was indissoluble. It was a union where the husband and the wife stood on the same platform. There was freedom in choosing one’s life partner and swayamvara (self-choice) was popular among the Kshatriyas. Monogamy was the norm while polygamy was looked upon with disfavour. According to A.L. Basham, Family in ancient India was staunchly patrilineal and patriarchal. The wife though she enjoyed a respectable position, was definitely subordinated by her husband. Marriage was usually monogamous and apparently indissoluble for no reference to divorce and remarriage of widows occur in Rig veda.11

There exists mixed evidence on women’s rights to property during the vedic era. The Atharvaveda stated that at the time of marriage, a husband took a vow that the rights and interests of the wife will not be transgressed. The bride used to have full right over the gifts received by her, the Stridhana.12 However, women were debarred from other forms of property. At the same time, one finds evidence of son preference in vedic era. Atharvaveda mentioned that the birth of a girl child was not considered a pleasant affair during the vedic period.13 The Aiteriya Brahmana equated the birth of a girl child with 9 Radha Kumud Mukherjee, ‘Women in Ancient India’, in Tara Ali Baig (ed.), Women in India, Ministry of Information and Broadcasting, Publication Division, New Delhi, 1958, p. 1. 10 D.D. Kosambi, Ancient India; A History of its Culture and Civilization, Pantheon Books, New York, 1965. 11 A.L. Basham, The Wonder that was India, Grove Press, New York, 1954, p. 36. 12 Agnes, Law and Gender Inequality, p. 14. 13 Madhu Shashtri, Status of Hindu Women: A Study of Legislative Trends and Judicial Behavior, RBSA Publications, Jaipur, 1990, p. 27.

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trouble and misery. While economic rationality perhaps resulted in son preference, the mother was accorded a high place in society. The position of women apparently deteriorated during the period of the sutras (500 BC–800 AD). The discourse on gender rights of the time continued to be centered on religious discussions, such as the Manusmriti, a powerful, detailed and passionate treatise on social philosophy. The central philosophy of Manu in relation to the status of women was that, biologically women differed considerably from men and were therefore suitable for a different role in society. He regarded women as less rational, more emotional, and therefore the male members of the family had the duty to keep her in subordination throughout her lifespan.14 The Manusmriti clearly stated that the best among women was she who was best administered. According to the Manusmriti, ‘When creating them, God allotted to women a love of their bed, of seat and of ornaments, impure desire, wrath, dishonesty, malice and bad conduct.’15 At the time of the sutras, women were married early and were thus denied the opportunity of education. Women’s position in the family was clearly one of subordination as seen from the Manusmriti. Manu emphasized that in all circumstances, women should be under the control of men. In childhood, she should be controlled by her father, in youth by her husband and in old age by her sons. According to Manu, a wife should not do anything to displease her husband and should always bear a smiling face. Even at the death of her husband, she should not think of any other man. A widow should never remarry. In the absence of proof to the contrary, women in the post-vedic period were not allowed to own property, justified by Manu as their incapacity to hold. As a result, women were entitled to stridhana alone, which included those given on the bridal procession and gifts received by the bride. Stridhana was inherited by unmarried daughters only. Further, the Manusmriti provided for the maintenance of widows on the condition of their being chaste. These restrictions placed upon women’s freedom and almost non-existent property rights went unchallenged for a fairly long period of time. Depending on variations in regional customary 14 15

Shastri, Status of Hindu Women, p. 44. Ibid., p. 47.

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practices, two major schools of law, Mitakshara and Dayabhaga ordained diverse views on women’s entitlements to property. While Mitakshara denied the widow’s right to the husband’s property, the Dayabhaga school allowed her to inherit the property of the husband.16 The Mitakshara system distinguished between two types of property—joint family property and self-acquired property. A community of interests and rights was recognized in the joint family property, held jointly by a maximum of four generations of male members—a man, his sons, his son’s son, and son’s son’s son became coparceners by birth. There were severe restrictions on the alienation of property in a joint family. Only self-acquired property (if acquired without detriment to the ancestral estate) and any property inherited from persons other than his father, paternal grandfather or paternal great grandfather were regarded as separate property. In the absence of debate on improving women’s rights within family and society, the status of women remained rather dismal during the post-vedic period. The discursive construction of ideal woman throughout this period was one serving the interests of the family being confined to her home, performing primarily domestic chores and being subordinate to her husband. Such customary practices coupled with the low age of marriage deprived women from being able to contribute to society beyond household work. A series of Muslim invasions in the medieval period of Indian history forced the Hindu society to enter an insular mode, in an attempt to protect their socio-religious fabric. As a consequence, glorification of womanhood and motherhood was intertwined with the confinement of women within the family. The medieval discourse on women, for instance, Amir Khusrau’s Hasht Bahisht, placed mothers on a high pedestal. In contrast, during this phase, the custom of self-immolation or sati became popular and was considered a pious and devoted act on the part of the wife. Ibn Batutah, in his account, confirmed the popularity of self-immolation among Hindus.17 Among the Rajputs, the practice of jauhar gained currency to maintain the integrity and chastity of the women of the royal household in times 16 Henry Thomas Colebrooke, Essays on the Religion and Philosophy of the Hindus, William and Norgate, London, 1858. 17 Lokesh Chandra Nand, Women in Delhi Sultanate, Vohra Publishers, New Delhi, 1989, p. 179.

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of political crisis.18 Purdah was considered to be the best ornament of woman, which was to be observed religiously after she attained the age of seventeen years. The strict observance of the purdah system to preserve a woman’s chastity and integrity restricted her mobility and educational opportunities, thereby undermining her social status. Marriage was generally decided by the parents of the bride and the bridegroom. Polygamy was patronized both by the ruling class and elite group of the court. Although the Muslim rulers by and large did not interfere with the Hindu customary practices, sharply polarized practices of Hindus and Muslims created distrust among the two dominant religious groups in India. The return of Hindu customary practices to conservative values was an outcome of such polarization in society, ruling out virtually all possibilities of a balanced argument on women’s issues.

EARLY CHALLENGES TO PATRIARCHY: NINETEENTH CENTURY DEBATES ON WOMEN’S ISSUES The nineteenth century saw the Indian society beginning to throw challenges at patriarchal values as women’s issues came to the fore due to a variety of factors. A critical factor was the expansion of British colonial rule in India. The British arrived in India from a different social context and gender relations powered by the growth of capitalism that accompanied the Industrial Revolution since the seventeenth century. In stark contrast to the dynamism exhibited by British capitalism, Indian society displayed a de-centered, static nature with self-sufficient village societies displaying insulation explained often as the ‘Asiatic Mode of Production’. Expectedly, therefore, British rationality came in direct conflict with customary practices of the Indian society. However, social reform was not part of the British colonial schema, and hence, when the British assumed administrative responsibilities of a larger part of India they followed a policy of non-interference with customary practices by religious communities. Though the British remained firm in their non-interference policy, they nonetheless abhorred the barbaric practices of sati and child marriage. Contrary to the praxis of non-involvement on the ground, the discourse of the colonizers reflected moral superiority. In available colonial documentation and literary works, the British notion of the 18 James Tod, Annal and Antiquities of Rajasthan: Or, the Central and Western Rajpoot States of India, Routledge, London, 1950.

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status of Indian women was one of extreme subjugation, unacceptable in any civilized society. In his History of British India, first published in 1826, James Mill argued that if women’s position could be used as an indicator of social progress, Indian society reflected extreme subjugation of women. Mill observed, ‘nothing can exceed the habitual contempt which the Hindus entertain for their women…. they are held in extreme degradation.’19 The need and urgency for social reform was voiced strongly by British missionaries who visited India during the period. For instance, Reverend E. Storrow, who came to India in 1848, observed and suggested the need for remedial action to alleviate the low status of women in India. Similarly, Alice Boucher van Doren’s work on Indian social life in early twentieth century portrayed a picture of society infested with various gender biases. Published in 1921, her memoir is an eyewitness account of family life in India by an outsider. She came to the conclusion that the functioning of Indian families and the lives of women in India reflected gross injustices and atrocities committed on women. The British discourse on gender issues in India had little or no impact on colonial administration as the passivity regarding Hindu religious diktats continued to mark British administrative strategy. The discourse nonetheless provided the basis for western civilizing mission in the Orient. It was therefore inevitable that reform initiatives had to emerge out of Hindu society and the first communicative challenge to the deep-rooted patriarchal values came from social reformers in the early nineteenth century.

Caste Dynamics and the Evolution of the Gender Debate in the Nineteenth Century The debates surrounding gender issues in nineteenth century India can hardly be effectively interpreted without recourse to the dynamics of caste system, a system of social stratification and hierarchy underscored by the existence of endogamous hereditary groups termed as varnas and sub-divided into jatis. In India, the caste system assumes special significance for Hindu women due to its influence on the customary practices built around family and society. The system had a pervasive influence on Indian society and culture for over two thousand five hundred years, and legitimized 19 For a brief discussion, see Geraldine Forbes, Women in Modern India, the New Cambridge History of India, Cambridge University Press, New Delhi, 1988, p. 13.

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the unequal access to resources and power in society. Surviving through major socio-historical changes, the caste system coexisted along with different modes of production, from the tributary modes to the present capitalist ones.20 M.N. Srinivas observed that the caste system being essentially endogamous in nature, exerted a restrictive influence on women. As an instance, he has cited the practices of anuloma and pratiloma marriages21 where caste system influenced customary laws surrounding marriages. The system played an important role in the self-sufficient village economy, by ensuring distribution of labour and skill within a closed economic model.22 During British rule, Indian society continued to be divided into various caste and religious groups. It was influenced by an ideology of hierarchy than of equality.23 However, over time, the expansion of British rule began to exert its influence on the socio-economic structures of India and began to create a dent in the caste system, as has been highlighted in sociological and historical accounts. In a recent account of the evolution of the caste system in India, it has been noted, From the middle of the nineteenth century onwards, breaches began to appear in the system described above. Economic changes, especially the commercialization of agricultural production and agrarian relations, emergence of contractual relations, new employment opportunities outside the village in factories, mandis, government services, the army (aided by education), all contributed to a shift…24

The shifting norms of the caste system were also the result of the emergence of liberal reformers in several parts of India in the nineteenth century, most notably in Bengal and Maharashtra. In the nineteenth century, the Brahmo Samaj under Raja Ram Mohan 20 Gail Omvedt, ‘Land, Caste and Politics in Indian States’, Teaching Politics, University of Delhi, 1982, pp. 11–12. 21 An anuloma marriage is a marriage where the husband is from a higher caste than the wife. A pratiloma marriage is a marriage where the wife is from a higher caste than the husband. See M.N. Srinivas, Caste in Modern India and Other Essays, Media Promoters and Publishers Private Limited, Bombay, 1978, p. 3. 22 John Duncan M. Derrett, Religion, Law and the State in India, Faber and Faber, London, 1968, p. 172. 23 Paul R. Brass, The Politics of India since Independence, The New Cambridge History of India, Vol. IV.1, Cambridge University Press, Cambridge, 1990, p. 5. 24 Bipan Chandra, Mridula Mukherjee, and Aditya Mukherjee, India after Independence: 1947–2000, Penguin Books, 2002, p. 444.

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Roy actively campaigned against untouchability and casteism. The Arya Samaj founded by Swami Dayanand also renounced discrimination against Dalits. Sri Ramakrishna Paramahamsa and his disciple Swami Vivekananda founded the Ramakrishna Mission that participated in the emancipation of Dalits. Caste inequality was also questioned by Jyotiba Phule in Maharashtra and Narayana Guru in Kerala.25 In the twentieth century, two prominent personalities, Mahatma Gandhi and B.R.Ambedkar, played a crucial role in bringing to the fore the injustices done to lower castes by upper castes. While Gandhiji made the removal of untouchability a part of the national liberation campaign, Ambedkar, belonging to the mahar community, organized campaigns in removing caste injustices, calling himself ‘breaker of the pride of twice-born classes.’26 Under the leadership of Ambedkar, the mahars organized an autonomous movement from the 1920s, demanding separate representation, the right to use tanks and enter temples. They also demanded the abolition of ‘mahar watan’, a customary practice that forced them to give traditional services to village chiefs.27 In 1927, the first Mahar Conference was held, and Ambedkar’s followers protested against caste injustice by burning copies of the Manusmriti. Ambedkar continued his struggle against caste-based discriminations, both within and outside the legislative sphere.28 The demands for ending caste based discriminations were also recognized in the Constitution of independent India, Ambedkar playing a central role in the framing of the Constitution. In the legal sphere, the caste system played a significant role. The legal scholar John Duncan M. Derrett observed, ‘Of the many topics illustrating the gap between the shastric theory and practice, perhaps the most remarkable is the caste system.’29 Derrett observed that while the caste system was continuously evolving, so was the law in practice which sought to accommodate and even foster regulated advance by groups. New matrimonial relationships among castes were recognized by the customary laws in existence prior to the 25

Ibid., p. 444. John Duncan M. Derrett, Hindu Law: Past and Present, A. Mukhejee and Co., Calcutta, 1957, p. 70. 27 Sumit Sarkar, Modern India 1885–1947, Macmillan India Limited, New Delhi, seventh edition, 1990, p. 242. 28 Chandra et. al., India after Independence, pp. 445–6. 29 Derrett, Religion, Law and the State in India, p. 172. 26

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advent of the British. During British rule, the process of codification of shastric laws began with the initiative of Warren Hastings and others. This process was not immune to the caste divisions that were an indispensable part of the contemporary social fabric. To quote Derrett again, Meanwhile, the ruler’s responsibility with regard to the caste matters were by no means abandoned. The company retained the right to superintend the administration of temples, and the management of the places of pilgrimage. But in course of time a definite disinclination to interfere in matters of Hindu religion emerged, and even a distaste for cases involving claims to dignities and honours of a religious character.30

Thus, a distinct lack of will to interfere with religious affairs of Hindu community by the colonial rulers was discernable and, as a consequence, the castes were left to manage their own disputes, including those with gender connotations. Gender discriminations and disputes were thus continued to be governed by custom, which was influenced to a great extent by the caste system. Discussions on gender issues of the nineteenth century, therefore, can hardly proceed without assessing its affiliation to the caste system. Frozen in customary practices for a long time, the caste system demonstrated dynamism resulting from the emergence of a new class structure in the colonial period as the interface between gender, caste, and class, and led to a reconfiguration of the Indian social pecking order. The power dynamics of Hindu patriarchy and their manifestations on issues of gender rights were compounded by caste differences. In the presence of social categories like caste, women suffered from ‘double status disadvantage’, as victims of both gender-based and caste-based discriminations.31 Under the British colonial rule, Indian society underwent significant changes since the early nineteenth century. In the nineteenth century, the nation witnessed extensive debates concerning core issues with respect to gender relations within the family and society. The growth of media and educational progress provided depth and context to the debate. The growing conflict between orthodox segments and the socio-religious reform movement came to the fore over debates and 30

Ibid., p. 290. Clyde Wilcox, ‘Racial and Gender Consciousness among African–American Women: Sources and Consequences,’ Women & Politics, Volume 17, No. 1, 1997, pp. 73–94. 31

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discussions concerning sati32 or widow immolation, age of consent,33 widow remarriage,34 female education35 and the role and relationships surrounding the institution of marriage.36 Gender relations, till then defined by customary practices came to be questioned by certain segments of the Indian elite that benefited from exposure to liberal Western thoughts and values. The debate was spearheaded by dissident religious movements and personalities who posed a challenge to the dominant patriarchal orthodoxy. The political subjection to colonial rulers also raised sensitivity to wider issues of domination and subordination along with the question of gender relations and exploitation of women. While the liberal challenge spearheaded by the social reform movement was spirited, such reform efforts came to be protested by conservatives with vehemence. The colonial rulers decided to permit unhindered progress of the debate, taking a passive stance of non-interference with religious matters in Indian society. Campaigns for reform first surfaced in Bengal where the upper echelons of the Bengali society, the society of babus and bhadraloks, underwent a rapid transformation. British colonial expansion influenced a reconfiguration of the professional domain and upward mobility among various castes. Inspired by western education, and imbibing a spirit of liberty and equality, a section of the intelligentsia in Bengal started the Young Bengal Movement. The thrust of the movement was the removal of glaring caste and gender biases in society. In contrast to western perception, the core 32 Ashish Nandy, ‘Sati: A Nineteenth Century Tale of Women, Violence and Protest’, in Ashish Nandy, At the Edge of Psychology, Oxford University Press, New Delhi, 1992. See also Bachi Karkaria, ‘Identity in Waiting: A Long Haul from “Sati” to “Tara”’, The Times of India, Bombay, July 4, 1994. 33 Meera Kosambi, ‘Girl-Brides and Socio-legal Change: Age of Consent Bill (1891) Controversy’, Economic and Political Weekly, Volume XXVI, No. 31, August 3–10, 1991, p. 1857. 34 Lucy Carroll, ‘Law, Custom and Statutory Social Reform: The Hindu Widows Remarriage Act of 1856’, Indian Economic and Social History Review, Volume XX, No. 4, Oct–Dec, 1983, p. 363. 35 Aparna Basu, ‘A Century’s Journey: Women’s Education in Western India: 1820–1920’ in Karuna Chanana (ed.), Socialisation, Education and Women: Explorations in Gender Identity, New Delhi, Orient Longman, 1988. See also, Pratima Choudhury, Women’s Education in India: Myth and Reality, Har Anand Publications, New Delhi, 1995 and V. Khandwala, Education of Women in India, 1850–1967, A Bibliography, SNDT Women’s University Press, Bombay, 1988. 36 Rochona Majumdar, Marriage and Modernity: Family Values in Colonial Bengal, Duke University Press, USA, 2009.

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of the liberal argument was focussed on glorification of India’s past rather than its rejection. The social reformers focussed on women’s position in the ancient shastras in an attempt to prove that the degeneration of women’s status in medieval Indian society did not necessarily reflect the shastric traditions. Two initial movements surrounding women’s issues were spearheaded by Raja Rammohan Roy, an ardent believer in the argumentative tradition of India. Although the British rulers were abhorred by the practice of sati, Roy was the first Indian to raise his voice against sati. In 1815, Roy formed the Atmiya Sabha and immediately afterwards published a pamphlet criticizing the practice of sati. This was followed by the pronouncement by the chief pandit of the Supreme Court, Mrityunjaya Vidyalankara in 1817 that sati had no shastric sanctions. A year later, in 1818, William Bentinck, Governor of the Bengal province prohibited the practice of sati in Bengal. The action by Bentinck was seen by religious Hindus as colonial interference with customary practices of the Hindu community. The Hindu orthodox sections were quick to protest against the infringement, by outsiders, of their own customs and practices. In a petition by the Hindus against the abolition of sati in Calcutta, they pointed out that ‘Our language, our customs and our religion have never been infringed by the highest of those who have here administered the powers of Government and we trust will be preserved for the future…’37 The orthodox Hindu community tried to resist the ban on sati by projecting Bengali women as self-sacrificing and chaste. Ashish Nandy finds sati to be prominent in Bengal due to the presence of Dayabhaga system of inheritance in Bengal. Under the Dayabhaga system, widows could inherit the husband’s property if the latter died without having a son, even if the family was undivided. This inheritance right given to women posed a threat to the patriarchal order. The custom of sati ensured that such rights failed to materialize in practice, which probably explains the high incidence of sati in Bengal. Thus, one not only finds an upsurge in protests from Hindu orthodoxy challenging the legislation, there was a discernable increase in the number of satis being performed as a result of the Hindu backlash.38 In the mid-nineteenth century, untiring initiatives by a social reformer from Bengal, Ishwarchandra Vidyasagar, guided a 37 38

Nandy, Sati: A Nineteenth Century Tale, p. 33. Ibid., terms this as early nineteenth century epidemic of sati.

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widespread debate on widow remarriage, polygamy and women’s education. From a legal reform standpoint, his efforts yielded partial success, but the debates surrounding the issues sowed the seeds of a liberal, egalitarian consciousness in the midst of a deeply entrenched patriarchy. Experiences of childhood strengthened the resolve of Ishwarchandra to fight the painful plight of Hindu widows and strengthened his resolve to devote his life towards improving the status of Hindu widows. He also was shocked and enraged by the practice of kulinism among brahmins of Bengal, where an elite segment of the brahmins were able to marry as many women as they wished. Vidyasagar’s first essay on widow remarriage was published in 1855, where he traced the descent of Hindu society to the dark ages from its golden vedic past through his reinterpretation of religious scriptures. This led to a direct confrontation with the brahmins and a debate over interpretation of Sanskrit scriptures. Vidyasagar faced death threats and abuses from the orthodox segments. Meanwhile, his book on the Hindu widows became immensely popular among the emerging segment of Bengali intelligentsia and went into multiple reprints. Vidyasagar also endeavoured hard to elicit support through signature campaigns and submitted a petition to introduce laws permitting widow remarriage to the Indian Legislative Council. The council received several thousand petitions for and against the issue and finally rendered their support to the ‘enlightened minority’. The Hindu Widow Remarriage Act was passed in 1856. The Act did not immediately transform the condition of Hindu widows but created awareness in society about the plight of the widows, thereby setting in motion a slow process of evolution of the Hindu mindset on the issue. Hindu orthodox society reacted strongly and more than forty petitions were submitted by around sixty thousand Hindus of the upper class. The dissenting social attitude prevented the legislative measure from being effective in practice. This was evident from the statistics on widow remarriage. Only five hundred widow remarriages took place between 1856 and 1890 which meant not more than a dozen every year. Even when a widow survived immolation, widow remarriage was against social sanction. The inheritance laws at that time discriminated against those who decided to remarry. Any property received by the widow from her husband’s side ceased to be hers upon remarriage. After 1856, Vidyasagar continued his campaign against polygamy, especially prevalent among Kulin brahmins, and sought legislative

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prohibition of polygamy through signature campaigns and petitions. He also wrote extensively on issues of polygamy and need for female education. As a Special Inspector of schools, Vidyasagar was instrumental in launching about forty girls’ schools in Bengal. It is important to note that the path adopted by Vidyasagar was the path of deliberation, argument and persuasion. His actions unleashed communicative forces that engaged the educated Bengali society in communicative actions to encourage social change.39 Evidence of communicative processes surrounding gender issues in the nineteenth century were also observed in the Bombay Presidency (also referred in the book as Maharashtra, the name of the region in independent India to signify the State covering Bombay and its surrounding districts). Gender issues were debated and discussed against the background of a transformation of the staunchly patriarchal social milieu that existed during the Peshwa rule in western India, and sought to maintain Brahmin superiority by controlling women’s behaviour.40 The transformation took place under the British rule, and the feudal form of Brahmanism gradually gave way to a modernized, updated, ‘reformist’ Brahmanism which constructed an image of the ‘Hindu woman’ transcending caste differences but drawing, to a considerable degree, from the patriarchy of traditional Brahmanism. A new Brahmanism was being constructed, which saw brahmins as the elite representatives of a broader ‘Hindu community’. This new Hindu community continued to identify with the vedas, as the fountainhead of religion and philosophy and with the ‘Aryan’ identity they represented; but the vedic tradition and Brahmanism were reinterpreted so that now-embarrassing aspects of the past legacy of orthodoxy could be seen as simply an outcome of the necessities for their time. Beneath reforms such as the sponsorship of widow remarriage were the important high caste norms of pativrata, i.e., the ideal wife, the sanctity of marriage, and the authority of husbands in the home to all the sections of what was now seen as a ‘Hindu community’. Thus, even as castes were homogenized into a larger Hindu legal structure, British administrators and their Indian counterparts ensured the maintenance of brahmanic 39 For detailed accounts of Ishwarchandra Vidyasagar’s social reform initiatives, refer to Asok sen, Ishwarchandra Vidyasagar and his Elusive Milestones, RiddleIndia, Calcutta, 1977. 40 See Uma Chakravarty, ‘Conceptualising Brahmanical Patriarchy in Early India’, Economic and Political Weekly, Volume XXVIII, No. 14, April 3, 1993, p. 579.

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ideology and brahmanized patriarchy and at the same time made these the basis of the norms for everybody else. In effect, this meant that the lower-caste woman was required to conform to the norms for the upper-caste woman. Whereas earlier brahmin women had in the ‘caste-patriarchal bargain’ traded prestige and status for greater confinement and bondage, now low caste men were offered a chance to trade the relatively greater independence of ‘their’ women for some of the status of the twice-born castes.41 This greater generalization of patriarchal controls and pativrata ideals42 throughout the caste hierarchy was a major factor in the increasing number of widows seen in the colonial period, and a gradually declining sex ratio—leaving India as one of the most patriarchal societies in the world when counting the number of ‘missing women’—an estimated 35–40 million women who would be alive were it not for the systematic discrimination.43 Another notable development within Maharashtrian society under colonial rule, particularly among the middle and upper classes, was the growing attraction towards a Hindu nationalist movement. Since the days of Shivaji and Ramdas, Shivaji’s Brahmin counsellor, Maharashtrian society was bred on a combination of asceticism and martial valour. Ram Das founded the akharas 44 dedicated to the deity Hanuman, which later became the breeding ground for the cadre of the Rashtriya Swayamsevak Sangh (RSS)45. The development of akharas 41 Uma Chakravarty, Rewriting History: The Life and Times of Pandita Ramabai, Kali for Women Press, New Delhi, 1998. The study is the first serious effort to analyse ‘patriarchy’ and ‘Brahmanism’ in Indian history, according to Gail Omvedt, ‘Towards a Theory of Brahmanic Patriarchy’, Economic and Political Weekly, January 22, 2000, p. 187. 42 Wendy Doniger and Brian K. Smith, The Laws of Manu, Penguin India, New Delhi, 1991, p. 198. A virtuous wife, according to Manu, ‘should serve her husband like a God, even if he behaves badly, freely indulges in lust, and is devoid of good qualities’ in Ibid., p. 114. 43 Jean Dreze and Amartya Sen, India: Economic Development and Social Opportunity, Oxford University Press, New Delhi, 1995. 44 The term akhara designates a place where the young men of the society gather daily for body building, exercise and sports—mainly wrestling and weight lifting. Members of the akhara were placed under the authority of a Guru who instructs the members of the akhara physical and mental discipline. The akhara developed a strong collective behaviour among its members. See S. Freitag, Collective Action and Community: The Public Arena and the Emergence of Communalism in North India, Oxford University Press, New Delhi, 1990, p. 121. 45 See R.I. Cashman, The Myth of Lokmanya, University of California Press, Berkley, 1975, p. 15.

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thus had a strong regional influence, particularly in Maharashtra, before they finally became popular in the North India.46 The number of akharas multiplied in Bengal and Maharashtra, especially in the late nineteenth and early twentieth centuries.47 The RSS was founded in Nagpur in 1925 and its leaders such as Veer Savarkar, Vasant Rao Oke, Nana Deshmukh, and Keshav Baliram Hedgewar were from Maharashtra.48 The pervasiveness of a brahmanical ethos in Maharashtra was the basis of rejection of the Gandhian political ideology in many Maharashtrian circles. This was due to several reasons. First, Gandhi’s Hinduism was largely influenced by bhakti and thus excluded many brahmanical values. Second, high caste Hindus were feeling insecure, owing to Gandhi’s strategy of mass mobilization.49 These factors apart, it has been noted that ‘Gandhi’s femininity was a major factor explaining the lack of popularity of Gandhi in many Maharashtrian circles.’50 One can thus discern a strong religious and patriarchal undercurrent in Maharashtra. Alongside the social reform movement’s contesting voice against deep-rooted patriarchy, nineteenth century also saw the first stirrings of feminist consciousness in India. Women like Savitribai Phule, Pandita Ramabai, Tarabai Shinde, Anandibai Joshi and Kashibai Kanitkar among others lauched reform efforts stemming from strong resentment of patriarchal orthodoxy.51 Personal testimonies of women demonstrate a new sense of worth experienced by these women as individuals. The possibility of women’s participation in the discourse on the position of 46

See N. Kumar, The Artisans of Benaras: Popular Culture and Identity, 1880– 1986, Princeton University Press, 1988 for a detailed exposition of the spread of Hindu nationalism in northern India. 47 Christopher Jafferlot, The Hindu Nationalist Movement and Indian Politics, 1925 to the 1990s, Penguin Books, New Delhi, 1999, pp. 36–47. 48 W. Anderson and S. Damle, The Brotherhood in Saffron: The Rashtriya Swayamsevak Sangh and Hindu Revivalism, Vistaar Publications, New Delhi, 1987, p. 34. 49 Ashish Nandy, At the Edge of Psychology: Essays in Politics and Culture, Oxford University Press, Delhi, 1980, p. 8. 50 Ibid., p. 78. 51 It is beyond the scope of the present study to give a detailed account of the work of women writers and social reformers from Maharashtra. The attempt rather is to trace the growth of feminist consciousness. One may refer to Susie Tharu and K. Lalita, Women Writing in India, Volumes I and II, Oxford University Press, New Delhi, 1999 for further details.

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women in society was remote in nineteenth century Maharashtra, considering the low level of female education in India in the nineteenth century and the degree of subordination of women in India. Nevertheless, these remarkable women contributed to the debate in no uncertain terms, and even though their writings could only marginally influence their contemporaries, their contributions had a profound impact on later generations of women activists. These women were able to identify and raise their voices to protest against gender discrimination and unequal distribution of power in intimate human relationships. One of the early expressions of feminist consciousness came from Savitribai Phule (1831–1897). A teacher and a social reformer, firmly standing by her husband Jyotiba Phule, Savitribai’s literary expositions and published correspondence reflect the role women can play as social reformers and in combating various social oppressions including gender injustice. Pandita Ramabai’s (1858–1922) life and her literary contributions, analysed by Uma Chakravarty, deserve attention from the viewpoint of feminist consciousness. Apart from being a literary figure of stature52 and a scholar of repute,53 she was also an extremely controversial social activist, and had to face considerable opposition from both Hindu and Christian communities. She founded Sharda Sadan, a home for widows in 1889. The home was soon the centre of controversy, with traditional segments of Hindus feeling that it was a centre of preaching Christianity and for the conversion of Hindus.54 The Christians on the other hand found her efforts too secular.55 In early 1897, when Pune was hit by plague, Ramabai protested against the mishandling of women by the Plague Committee headed by Walter Charles Rand.56 Kashibai Kanitkar (1861–1948) was another remarkable woman whose contributions in the late nineteenth and early twentieth century left an undeniable impact on the early feminist assertions. 52 Several editions of her book sold out immediately after publication, and thus provided financial strength to Ramabai, enabling her to visit England and the United States. 53 Ramabai was publicly honoured with the title Pandita, for her scholarship. 54 In a series of hard hitting editorials in Kesari, Tilak attacked the Sharda Sadan, stating that it was worse than a government or missionary school. 55 Tharu and Lalita, Women Writing in India, p. 246. 56 Ibid., p. 247.

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For Kashibai, the thirst for education arose because as a woman she wanted a better relationship with her spouse, and educated herself in secret despite heavy odds. Among Kashibai’s writings are two novels, Rangrao in 1903 and Palkicha Gonda (The Silk Tassle in the Palanquin) in 1928. These works are notable contributions to feminist thought, advocating love as the basis of marriage, education, and economic independence of women.57 Another striking intellectual contribution of the nineteenth century was by Tarabai Shinde (1850–1910), a housewife from Maharashtra in Western India. She wrote Stri Purusha Tulana (A Comparison between Women and Men) in response to a court case in Surat, involving a young brahmin widow Vijayalaxmi in 1881 for killing her illegitimate child.58 The subjection of women in institutions like marriage and family thus came under the purview of her essay. Stri Purusha Tulana can be regarded as an alternative viewpoint to the dominant perceptions of gender relations within the family. As a matter of fact, Shinde’s statement at the beginning of the book was a negation of the dominant perception of gender roles in society, the Stridharma of the pativrata wife, In fact, what does stridharma really mean? It means always obeying orders from your husband and doing everything he wants. He can kick you and swear at you, keep his whores, get drunk, gamble with dice and bawl he’s lost all his money, steal, commit murder, be treacherous, slander people, rob peoples’ treasures or squeeze them for bribes. He can do all this, but when he comes home, women are meant to think, ‘Oh, Who’s this coming now but our little lord Krishna, who’s just stolen the milkmaids’ curds and milk and tried to blame Chandravali for it. ….. how can people go on believing in the idea of Stridharma once they have begun to think about what’s good and bad?59

Shinde questioned the patriarchal values in the family, ‘If the husband is really to be like a god to the wife then shouldn’t he behave like one? And if wives are to worship them like true devotees, shouldn’t husbands have a tender love for them in return, and care about the 57

Ibid., p. 257. At the first trial she was sentenced to hang but on appeal this was changed to transportation for life and later was further reduced to five years. This angered Tarabai Shinde and prompted her to write the book, Stri Purusha Tulana. 59 Tarabai Shinde, Stri Purusha Tulana, tr. Rosalind O’Hanlon, p. 80. 58

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joys and pains like a real god would?’60 Tarabai Shinde expressed the beneficial impact of female education in clear terms throughout her work. In early twentieth century Bombay, feminist consciousness spread fast through organized efforts by women’s organizations aimed at addressing the gender issues. Moreover, efforts towards expanding the base of women’s education led to the spread of feminist consciousness among a broader segment of population. While individual efforts from women writers such as Geeta Sane and Vidya Bal among others left their impressions, a far greater influence on feminist consciousness and the growth of the organized women’s movement was the beneficial impact of women’s education.

WOMEN’S MOVEMENT IN THE TWENTIETH CENTURY The growth of the women’s movement contributed significantly towards growing social awareness on gender issues. Partha Chatterjee has pointed out that the initial impulses of a women’s movement were felt during the partition of Bengal in 1905.61 In Bombay, Stree Zoroastrian Mandal was established in 1903 by Parsi women, who formulated a scheme of visiting poor women and impressing on them the role of constructive work. They inspired poor women to secure economic independence by working in various cottage industries so that they might stop living on doles or charity. They distributed medicines, food and milk among poor Parsi families. The organization also did laudable work in the field of education.62 With a view to imparting education and training to Gujarati women, social worker B.N. Motiwala founded the Gujarati Hindu Stri Mandal in 1908. The main objects of the Mandal were to promote co-operation among women and to provide them with appropriate education. It organized classes for sewing, embroidery, painting, leather work and teachers’ training and also conducted classes in Gujarati language, English literature, Sanskrit, Hindi, and music. The Mandal also formed cultural committees, and started a 60

Ibid., p. 81. Partha Chatterjee, ‘The Nationalist Resolution to the Women’s Question’, in Kumkum Sangari and Sudesh Vaid (eds), Recasting Women: Essays in Indian Colonial History, Kali for Women, New Delhi, 1989. 62 Neera Desai, Women in Modern India, Vora Publishers, Bombay, 1977, p. 120. 61

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journal and a library.63Another women’s organization in Bombay, Seva Sadan was established by Ramabai Ranade in 1909. It provided a home for women, to impart education and to prepare them for social work. The Sadan started classes in industrial training for adult women, hostels, a teachers’ training college, a high school, a medical department and nurse’s centre. In Poona, Bhagini Samaj was formed in 1916 with the aim of serving society in general and women and children in particular. The agenda of Bhagini Samaj included education, social service, propaganda and legal work. It organized classes for adult women, night classes for working women and made medical facilities available to the poorer sections of society. In Baroda, a state then run by a Marathi speaking elite, several women’s organizations were formed in the early twentieth century. Chimnabai Maternity and Child Welfare League was started in 1914 to look after the health of the women of poor localities. Maharani Chimnabai Udyogalaya was organized to train middle class and working women in some crafts in order to make them selfsupporting. It organized classes in sewing, embroidery, bookbinding, calico-printing, carpet-making, weaving and cooking. The Baroda Stree Sahakari Necessary Stores Ltd. was also established for the sale of finished goods on a cooperative basis. It tried to foster among its members a sense of economy and encouraged the use of swadeshi.64 Women’s Indian Association, founded in May 1917, was the first organization of pan-Indian character; its branches were first opened in Srinagar, Madras, Calicut, Tanjore, Bezwada, and Bombay. Later, its branches were opened in other parts of India as well. The association, under the leadership of M.E. Cousins conducted the women’s suffrage movement and succeeded in its mission.65Among the women social activists in Bombay who gained prominence were Maniben Nanavati, Maniben Kara, Perin Captain, Gosiben M. Captain, Ratanben M. Mehta, and Sarojini Naidu. The first demand for women’s franchise came from Bombay and Madras provinces in 1918, when women’s organizations appealed 63

Ibid., p. 126. Maharani of Baroda, The Position of Women in Indian Life, Bombay, 1911, p. 240. 65 Margaret E. Cousins, Indian Womanhood Today, Kitabistan Series, No. 5, New Delhi, p. 30. 64

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for support from the Indian National Congress.66 In 1918, Sarojini Naidu spoke in a special session of the Indian National Congress in Bombay, Never, never, for we realise that men and women have their separate goals, separate destinies and that just as man can never fulfil the responsibility or the destiny of a woman, a woman cannot fulfil the responsibility of man….. We ask for the vote not that we might interfere with you in your official functions, your civic duties, your place and power, but rather that we might lay the foundations of national character in the souls of the children that we hold upon our laps, and instil into them the ideals of national life.67

Women’s Council of India was founded in 1920 at Bombay and it was open to all women engaged or interested in women’s welfare. It also extended its affiliation to other women’s organizations and was designed to act as a coordinating body for all social and philanthropic work conducted for the welfare of women and children throughout Bombay Presidency. Meant to be a rallying ground for all organized efforts,68 it ran a home industries depot, children’s holiday library, labour camps, parliamentary subcommittee and dealt with the beggar problem and literacy movements also. In 1922, the Council opened a rescue home for women, the object being to provide relief and shelter to deserted women. The All India Women’s Conference (AIWC) was also founded in Bombay in 1926, becoming the most outstanding all-India organization of Indian women to fight for their rights and work for their general welfare and promotion of education. Its first session was held at Poona during January 5–8, 1927 with Maharani Chimnabai Gaekwad of Baroda as President. Margaret Cousins was elected its first honorary organizing secretary.69 The resolutions passed at the first conference related almost without exception to women’s education ranging from primary to college and adult education. A resolution condemning the practice of early marriage, as it interfered with education and supporting Sir Hari Singh Gour’s Age of Consent

66

Forbes, Women in Modern India, p. 93. Report of the Special Session of the Indian National Congress, Bombay, August 19–31 and September 1, 1918, pp. 109–10. 68 Neera Desai, Women in Modern India, p. 130. 69 All India Women’s Conference, First Annual Report, 1928, p. 3. 67

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Bill was also adopted in the Poona conference.70 Margaret Cousins observes that, ‘The closing session fused the women present, young and old, into a spiritual sisterhood dedicated and sent forth to turn their vision into accomplishment and to embody their general principles into a detailed system in a new educational social era. Bombay women also participated vigorously in the Civil Disobedience Movement of 1930–32. The picketing by thousands of women received more coverage in newspapers than that by women in other parts of the country. Geraldine Forbes observed, ‘That Bombay’s women took the lead seems natural given the cosmopolitan nature of the city, its transportation system, the presence of Parsees and Christians, both communities supportive of female education. The large Gujarati population found the message of their fellow Gujarati, Gandhi, especially appealing.’71 Bombay was also the centre of activity of the Rashtriya Stree Sangha, under the Presidency of Sarojini Naidu with Gosiben Naoroji Captain and Avantibai Gokhale as Vice Presidents.72 On April 6, 1930, women gathered at the seaside to break the Salt Laws, by boiling sea water. Kamaladevi Chattopadhyay wrote, ‘This was our first appearance in any modern militant political campaign and I could hardly suppress my excitement at the enormity of the occasion…73 Demonstrations and picketing in Bombay continued till 1931, when Gandhi was released from jail. The demonstrations had two effects, viz., many merchants pledged not to sell foreign cloth, and women in other parts of India were inspired by the courage and resilience of women in Bombay.74 Rajkumari Amrit Kaur presided over the twelfth session of All India Women’s Conference (AIWC) held at Nagpur in December 1936. She placed on record the glorious achievement of sixty women entering the legislatures of the various provinces. One of them, Vijaylakshmi Pandit, was elected a cabinet minister. The standing committee of the conference drafted a scheme for introducing legislation to improve the social status of women and forwarded it 70

Proceedings of the First All India Women’s Conference, pp. 28–32. Forbes, Women in Modern India, p. 130. 72 Vijay Agnew, Elite Women in Indian Politics, Vikas Publishing House, New Delhi, 1979, p. 39. 73 Kamaladevi Chattopadhyay, Inner Recesses/Outer Spaces: Memoirs, Navrang, New Delhi, 1986, pp. 152–3. 74 Forbes, Women in Modern India, pp. 134–5. 71

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to chief ministers of the new provincial governments and to women members of legislatures.75 Bombay organized the seventeenth session of the conference in April 1944, presided over by Kamaladevi Chattopadhyaya and attended by 205 delegates. The conference organized an agitation in support of the Hindu Law Committee.76

SNDT UNIVERSITY AND THE DISCOURSE ON WOMEN’S EDUCATION Alongside the growth of women’s organizations demanding gender justice, there was a parallel discourse surrounding educational opportunities of women. The social reformers and early feminists tried to improve the status of women by promoting women’s education in the nineteenth century. By the middle of the nineteenth century, the spread of women’s education had made considerable progress in Bengal, Madras and Bombay (though Bombay Presidency was a distant third with 65 girls schools as against 288 girls schools in Calcutta, and 256 in Madras in 1854).77 Two remarkable visionaries made a sharp difference in Bombay’s educational scene, Pandita Ramabai Saraswati and Maharshi Dhondo Keshav Karve, in the second half of the nineteenth century. Pandita Ramabai founded Sharada Sadan in Bombay and Poona in 1889, and D.K. Karve opened a school for widows in Poona in 1896. Geraldine Forbes observed, ‘Ramabai’s educational work impressed contemporaries, but her connections to Christianity has obfuscated her contributions to women’s education.’78 Ramabai’s girls’ school in the outskirts of Poona, named Mukti, grew into a ‘major educational institution housing 2000 women and children’.79 Karve’s contribution to shaping the growth of Shreemati Nathibai Damodar Thackersey Women’s University (SNDT) was a major step towards women’s education in Bombay. The SNDT Women’s University was founded by Maharshi Dhondo Keshav Karve in the early twentieth century, along the lines of the 75

All India Women’s Conference, Twelfth Annual Report, 1937. All India Women’s Conference, Seventeenth Annual Report, 1944. 77 Y.B. Mathur, Women’s Education in India, 1813–1966, Asia Publishing House, Bombay, 1973, p. 25. 78 Forbes, Women in Modern India, p. 48. 79 A.B. Shah (ed.), Letters and Correspondence of Pandita Ramabai, Maharashtra State Board of Literature and Culture, Bombay, 1977, pp. 342–426. 76

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Japanese Women’s University (1900) to impart education among women and prepare them to contribute more significantly to the well being of the nation and the family. The University was influence by Karve’s philosophy that identified women’s education with deshraksha—work for nation, and dharmaraksha—work for religion. The University was formally launched on June 3, 1916 without government recognition. It was known as the Bharatwarshiya Mahila Vidyapeeth and was a unique institution due to its geographical spread, its divergent curriculum, its flexibility and its freedom from government control. Ramkrishna Gopal Bhandarkar was the first Chancellor, Raghunath Paranjape was the first Vice Chancellor and Hari Ramchandra Divekar was the first Registrar. Karve was the first Principal of the Mahila Pathshala, the first college of the University. In the first entrance examination of the University, also known as the ‘Karve Matric’, six girls appeared of whom four successful candidates joined the first college, the Mahila Pathshala. The lukewarm response may be attributed to the fact that the degrees from this University did not have the recognition of the government and also to the fact that the course curriculum was somewhat different, embedded as they were in the Preambles of the University. For instance, the BA and MA courses were known as GA and PA, and the graduates and postgraduates as grihitagama, one who has acquired knowledge and pradeyagama, one who is ready to impart knowledge. These terms were coined by Ramkrishna Gopal Bhandarkar, the first Chancellor of the University. Prior to the setting up of the University, Karve, while spelling out the details of his idea of a women’s university, described the four fundamental premises of the University: generating confidence in women as responsible human beings, equipping them to contribute to nation building by strengthening the family, promoting nationalism among women and children and enabling greater work participation of women to give them the opportunity to live a life of dignity. The spirit of nationalism was reflected in the thrust of education through the vernacular medium, while the acceptance of gender roles in society led to a curriculum and educational pattern specially suited to the needs and requirements of women. The curriculum included subjects like domestic sciences and child development. In the initial years, the target group of the University were widows and deserted women.

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Since stress on female education through the mother tongue had little support among the colonial rulers, the University started without any form of State funding. For the first five years, the financial condition of the University was in a poor shape. Two separate electorates as the sources of funds for the University contributed either five or ten rupees every year. There was also a provision for a one time donation of rupees one hundred and fifty. Around 1200 members contributed to University funds. In 1921, Sir Vithaldas Thakersay’s donation of fifteen lakhs provided the much needed finances. After 1921, the geographical spread of the University expanded, with the University extending its activities in Gujarat. The patronage increased too with the Maharajas of Bansoda, Bharatpur, Bhavnagar, Gwalior, Mysore, Porbandar, Nawab of Cambay, the Nizam of Hyderabad, and also the Maharanis of Dharampur, Indore, Limdi, and Phaltan, extending financial support to the University. In the 1930s, a college of the University started in Bombay and thereafter, the University headquarters shifted to Bombay. Recognition for the good work done by the SNDT Women’s University came from several sources. First, more and more girls’ schools became affiliated to the University and sent girls for the entrance test even as the University was running without recognition from government. The Hartog Commission in 1929 recorded the University’s contribution for the higher education of women in Bombay Presidency. In the views of the Hartog Commission, the main obstacle before the University was non-recognition of its degrees by the government, which was due to an anxiety on the part of the University to avoid control over the curricula and conditions of examination. Till the early 1930s, however, the graduates of the University had to seek employment in the private sector. The first Congress ministry in Bombay under B.G. Kher recognized the degrees of the University to be at par with those in other universities in 1934, thus opening the doors of government service for SNDT graduates. Sir Sitaram Patkar, eminent judge, played an instrumental role in advancing the cause of the recognition of the Women’s University as a Chancellor during 1931–2 to 1945–6. He struggled to attain recognition from the Government of Bombay. The government in response, appointed a committee to look into the question of the University. The chairman of the committee was Sir H.V. Divatia, other members included Hansa Mehta, K.M. Jhaveri,

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A.B. Gajendragadkar, Principal V.J. Jog, Sharda Diwan and Lila Dhume. The Committee submitted its report in 1948, paving the way for government’s recognition. A bill to this effect was introduced by the Bombay Legislative Assembly on September 30, 1949. After three readings in the Legislative Council, it was passed into law on October 13, 1949. The government recognition for the University finally came on November 23, 1949. The University received its Charter of Recognition when it was put in the Statute Book in 1951. The colonial State, in the initial phase, did not make any substantive reform to promote the education of women in India, the earlier efforts coming from the missionaries. On the contrary, the history of the nineteenth century educational reforms is replete with evidence that the State did in fact oppose the expansion of women’s education.80 The first explicit official recognition of the need for women’s education can be traced back to Wood’s Educational Dispatch of 1854. In the report, Sir Charles Wood stressed the need to promote women’s education in schools through State grants. The reform measures of the colonial State received a further impetus when the Hunter’s Commission Report, 1881 pointed out the need to focus on women’s education, through greater State support to private enterprise. The Commission also advocated a separate education suitable for girls, and suggested that the curriculum may contain reading, writing, arithmetic, music, hygiene, needlework and embroidery. The existing literature on women’s education has found it rather difficult to locate the role of the State towards reforming women’s education. Geraldine Forbes81 has remarked, Looking at female education and its products in the second decade of the twentieth century, one can begin to answer the question of how far female education has achieved the results desired by the three groups who had promoted it: the British rulers, Indian male reformers and educated Indian women. The British wanted their civil servants to have educated wives to further ensure their loyalty … they believed English educated Indian women would raise their children to become anglophiles. 80 Pratima Chaudhary, Women’s Education in India, Myth and Reality, HarAnand Publications, New Delhi, 1998. 81 Forbes, Women in Modern India, p. 60.

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The early years of struggle of the SNDT Women’s University also coincided with a sharp upsurge in female literacy and educational progress acting as engines for the mobilization in social forces. The contribution of SNDT Women’s University was significant, considering the degree of difficulty for women to get education in coeducational universities. Educational progress of women prepared the ground for women’s struggle for justice and equality. Table 1.1: Literacy among Women in the Pre-Independence Period82 Year

Female Literacy Rate

1881–82

0.2

1901–02

0.7

1921–22

1.8

1946–47

6.0

Social Resistance to Women’s Education Throughout the first half of the twentieth century, the SNDT Women’s University came under a lot of discussion and debate. When questions relating to the need and relevance of the University were raised when in 1915, Karve presented the case for establishing a women’s university in Maharashtra. Some of the social reformers and liberal segments of society were opposed to a separate university for women as they considered it to be a retrograde step.83 Karve pointed out to them, ‘What we aim at is to frame our schedules of study to suit the mental and physical conditions of women at present, and to gradually raise the standard in accordance with general progress.’ He added that ‘We must recognize that both national and social economy requires that women should occupy a station of their own distinct from that of men…’84 In fact, while establishing the university, the founders were clear that government recognition would be hard to come by, as the idea 82 Prabhash P. Singh, Women in India: A Statistical Panorama, Inter India Publications, New Delhi, 1991, p. 68. 83 Lokmanya Tilak was an important personality opposed to higher education for women, as he felt that this could destroy the family. 84 Forbes, Women in Modern India, p. 53.

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of a separate university, coupled with its stress on the mother tongue did not interest the State. At that point Tagore advised Karve to win government recognition at the end instead of praying for it in the beginning. The SNDT viewpoint can be found in the convocation address of Principal A.B. Dhruva in 1929, We are asked by some of our best friends of female education—why should there be a separate university for women with distinctive courses? My simple answer is: because men have ignored women too long, unpardonably long, making no provision for their special needs in the educational system in the country.85

At the convocation speech of the SNDT Women’s University in 1943, Nil Ratan Sarkar said, ‘The University should offer a true synthesis of liberal and cultural education with the training of practical subjects to fit women for their primal vocation of homemaking.’86 In 1949, the SNDT Women’s University Bill was debated in the Bombay Legislative Assembly. While the main focus of the debate was the grant of statutory recognition, the debate covered a wide range of issues including the need for separation and special courses for women. The debate confirmed the highly controversial nature of women’s education and reflected the conflicting interests of social groups. Orthodox sections obviously wanted to halt the progress of women’s education due to the perceived threat to the integrity of the family. There was a feeling that the higher education of girls was affecting the interests of the family. There was also a widespread belief that married men were getting attracted to the charms of educated ladies at the peril of their marriage. Liberal sections felt that given the current social set-up educational reform should seek change from within. On the other hand, the liberal views of this group were firmly embedded in the belief of the virtues of the family and the specialised role of women in the family which educational reform was supposed to address. The liberals therefore advocated educational reforms from within the existing power structure of the family in Hindu society. In retrospect, communicative processes surrounding gender reforms in colonial India suggest strong links between religion, 85 86

SNDT Women’s University, Annual Report, 1929. Untitled Report, The Times of India, March 4, 1943, p. 6.

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state, and social action.87 Interlinks between religion, nationalism, and female empowerment can be found in the scattered literature on gender issues in the nineteenth century. Analysing discussion of the historical backdrop of the Hindu Code Bill controversy is, therefore, essential to comprehend the evolution of forces that shaped the contours of the Hindu Code Bill debate.

87 Susie Tharu and Tejaswini Niranjana, ‘Problems for a Contemporary Theory of Gender’, in Social Scientist, Volume XXII, Nos. 3–4, March–April, 1994.

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2 THE HINDU CODE BILL A Historical Background

T

he communicative processes that were set in motion in the nineteenth century intensified with the onset of the twentieth century. Discourses surrounding the necessity of legal reform were central to such communicative processes. As a matter of fact, one may be able to discern that the Hindu Code Bill did not emerge in a historical vacuum. Three crucial factors contributed to the vibrancy of the debate on the Hindu Code Bill. The first and foremost factor was that the growth of the nationalist movement necessitated a reconfiguration of women’s role in society. This contributed to more and more women emerging out of their traditional role at home and questioning the entrenched gender roles in Indian society. Second, the women’s movement, with its epicentre in Bombay, gathered momentum in the early twentieth century, pressing unremittingly for legislative reforms. Third, on the legal front the British policy of non-interference with Hindu law met with certain ground difficulties while putting customary practices into consistent implementation. Thus, internal inconsistencies within the legal system coupled with external realities necessitated a re-evaluation of the laws relating to women since the 1920s. In this chapter, these factors are discussed with a view to present the historical context of the Hindu Code Bill debate in India. Let us explore each of these historical threads and their respective contributions towards the evolution and intensification of the gender discourse in India.

WOMEN AND THE NATIONAL MOVEMENT The necessities of the nationalist struggle brought women into the public sphere. The process started during the partition of Bengal Debating Patriarchy. Chitra Sinha. © Oxford University Press 2012. Published 2012 by Oxford University Press.

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in 1905.1 The coincidence of nationalist upsurge and growth of feminist consciousness resulted in the participation of women in the Swadeshi movement of Bengal.2 The split between Moderates and Extremists within the Congress in 1907 further accelerated the process of women joining the national movement.3 The emergence of Gandhi in the Indian political and social sphere ushered in a significant phase for the social rights of Indian women. Gandhi felt that women had a key role to play in the family and both husband and wife in the family should enjoy similar rights. Gandhi’s projection of women was as symbols of peace and non-violence, of silent strength acquired through sufferings. His construction of women thus carved out a separate sphere for women. In his nonviolent political protests against the British rule, Gandhi assigned a limited yet useful role to women in the Indian national movement. In fact, the freedom struggle changed the very foundation of women’s role in Indian family and society. Manmohini Zutshi Sahgal wrote in her autobiographical work, An Indian Fighter Recalls Her Life, that when a woman was in jail after being arrested in a demonstration, the husband stated it was a great honour to have a wife who was under arrest.4 Geraldine Forbes notes, ‘The participation of women in the freedom movement also shaped the movement for women’s rights. More important, it legitimized their claim to a place in the governance of India.’5 In Erode, Tamil Nadu in 1931, Sarala Devi Chaudhurani stressed before the delegates of the Tamil Nadu Women’s Conference that women’s rights could be attained through the sheer force of agitation. Men had to be forced to concede to women’s demands and at the same time there was a strong need to convince women about

1 Partha Chatterjee, The Nationalist Resolution of the Women’s Question’, in Kumkum Sangari and Sudesh Vaid (eds), Recasting Women: Essays in Indian Colonial History, Kali for Women, New Delhi, 1989. 2 Bharati Ray, ‘The Freedom Movement and Feminist Consciousness in Bengal, 1905–1929’, in Bharati Ray (ed.), From the Seams of History, Essays on Indian Women, Oxford University Press, Delhi, 1995, pp. 174–5. 3 Radha Kumar, The History of Doing: An Illustrated Account of Movements for Women’s Rights and Feminism in India, 1800–1990, Kali for Women, New Delhi, 1993. 4 Manmohini Zutshi Sahgal, An Indian Freedom Fighter Recalls her Life, M.E. Sharpe, New York, 1994, p. 78. 5 Geraldine Forbes, Women in Modern India, The New Cambridge History of India, Cambridge University Press, New Delhi, 1998, p. 154.

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their own rights in society.6 Thus, the political work done by the women in India led to social benefits. In the years following the civil disobedience movement, the legal rights of women were reviewed and women made advances while fighting for their social rights. Even though the nationalist leaders were all men,7 the beginning was made towards transforming the social role of Indian women.

WOMEN’S ORGANIZATIONS AND THE PROCESS OF LAW FORMATION IN INDIA A significant development in the early twentieth century which left an undeniable imprint on the social status of women was the emergence of women’s organizations. Though elitist in character, ‘concerted attempts by Women’s groups in protesting against sexbiased decisions and legislations ultimately compel the Government to move to bring about a change.’8 As a matter of fact, almost all the changes, both legislative and judicial, were preceded by mass campaigns of protest for reform organized by women, indicating the interrelation between legal and social action. By the late nineteenth century, the social reform movement was beginning to show effect, and women started to find a foothold in the public sphere. During this period women also began to participate in nationalist campaigns and organizations.9 There were ten women delegates in the 1889 Congress Session in Bombay. During the period 1910 to1930, organized women’s movements started gathering momentum. Women’s India Association, the National Council for Women in India, and the AIWC all started their activities in the same period. In the Poona Session of the AIWC in 1927, Maharani Chimnabai10 told the delegates, We have to organize a regular campaign of propaganda throughout the country in favour of the resolution (minimum age of consent of 16 years 6

Ibid. Ibid., p. 155. 8 Lotika Sarkar, in her Foreword to Vimal Balasubrahmanyan, In Search of Justice: Women, Law, Landmark Judgments and Media, SNDT University Press, Mumbai, 1980, p. ii. 9 Bharati Ray, The Freedom Movement and Feminist Consciousness, pp. 179–83. 10 Maharani Chimnabai Saheba Gaekwad of Baroda was the President of the first Conference of the AIWC in 1927 in Poona. 7

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for women) with a view to getting it accepted both by the assembly and the Government of India. I cannot urge you too strongly to advocate this by every means in your power, by persuading individuals, by holding public meetings in the provinces from which you have come, by the formation of societies to the cause of this and other allied reforms, and by urging your representatives in the councils to take all the necessary steps in this matter, to bring such a law into being with proper safeguards to see that it is enforced.11

Thus, Maharani Chimnabai played a key role in setting the agenda for women’s organizations in the initial days of their battle for legal reforms.12 Accordingly, the AIWC passed a resolution deploring the effects of early marriage on education. It demanded the raising of the age of consent to sixteen. The AIWC whole heartedly supported Hari Singh Gaur’s Bill to this effect and resolved to send a deputation to Parliament to represent women’s demands.13 In the second session of the AIWC in Delhi in 1928, a similar view regarding child marriage was echoed by the Beghum of Bhopal. The Rani of Mandi proposed a resolution, deploring the adverse effects of child marriage that was adopted unanimously. The participants in the Conference pointed towards the fact that child marriage had no sanction in the shastras.14 The AIWC constituted a small standing committee to monitor the progress of the Child Marriages Bill. The AIWC also decided to form provincial and local committees to garner support for the cause. It also organized propaganda meetings and lectures, writing literature and posters, petitions and postcard campaigns urging people to sign postcards or write to their representatives in the Legislative Assembly. In October 1928, an article by liberal leader Tej Bahadur Sapru appeared in Stri Dharma, in which he advised women to demand changes in Hindu law to improve their status.15 To press the demand for legislation, the AIWC met the Age of Consent Committee. On February 11, 1928, the AIWC representatives in the provinces met different political parties to gather support for legislation to end child marriage. 11

AIWC, Annual Report, 1927, p. 17. She added that success of reforms in the marriage system would determine the success of women’s education in India. 13 AIWC, Annual Report, pp. 29–31. 14 Aparna Basu and Bharati Ray, Women’s Struggle: A History of the AIWC 1927–1990, Manohar Publications, New Delhi, 1990, pp. 43–4. 15 Modern Review, Calcutta, December 1928, p. 711. 12

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The deputation to the Viceroy was headed by the Rani of Mandi,16 and the delegation comprised S.R. Das, Rameshwari Nehru,17 Sarala Devi Chaudhurani, Ambalal Sarabhai, Beghum Hamid Ali, Kamaladevi Chattopadhyaya and Margaret Cousins. A second deputation led by Indira Bhagwat met major political leaders of the country including Jinnah and Lala Lajpat Rai.18 Another deputation consisting of Sushma Sen, Kamaladevi Chattopadhyaya,19 and Srirangamma placed their views in front of the Age of Consent Committee. With the introduction of the Sarda Bill in the Legislative Assembly, the AIWC started mobilzing support for its passage and played a crucial role to get the Sarda Act passed. In the 1930s, women’s associations forcefully pressed for legal reforms related to gender issues. In the fifth session of the AIWC in 1931, the President, Muthulaxmi Reddy,20 moved a resolution that members of the central legislature should be urged to take early steps to amend the present state of Hindu law relating to women to make it more equitable.21 The 1933 session of the AIWC devoted considerable time on the question of divorce. In the 1934 conference of the AIWC, a committee to look into legal disabilities for women was formed. November 24, 1934 was declared as Legal Disabilities Day and thousands of signatures were collected in favour of comprehensive reform to Hindu laws that affected women. The purpose of the day was to publicize the demand for a commission to suggest improvements in the legal position of women in personal law. There were public meetings at which lawyers debated the need for legal reforms to improve the status of women. Many of those who attended signed 16 Rani of Mandi, Lalitkumari Sahiba was an active AIWC member. She became President of the AIWC in 1929. 17 Rameshwari Nehru was a crusader against untouchability and was associated with the All India Harijan Sewak Sangh. She was the founder of the Delhi Women’s League in 1926, which acted as the Delhi wing of AIWC. She was also the editor of Stree Darpan since 1909. 18 AIWC, Annual Report, 1928, p. 75. 19 Born in Mangalore, Kamaladevi Chattopadhyaya (1903–1988) was educated in Bedford College and London School of Economics. Her public life began when she was in her twenties. As a founding member of AIWC, she was a crusader for the equality of women. She was also a prominent personality in the freedom struggle. 20 Dr Muthulaxmi Reddy (1888–1968) was a founder member of AIWC. She was also the first women medical graduate in India (1912). She was the editor of Stri Dharma until 1940. 21 AIWC, Annual Report, 1931, pp. 66–7.

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petitions in support of Hindu law reform. Although the position of women in Islamic law was discussed, the main focus was Hindu law. According to Renuka Ray, the purpose of Legal Disabilities of Women Day was to create public opinion favourable to the AIWC demand.22 Thus, although the women’s movement was urban centric and elitist in character, it was able to mobilize considerable public support for a comprehensive reform of Hindu laws. The women’s organizations also campaigned in favour of more equitable labour laws in the 1930s, focussing in particular on equal rights of women workers and child labour. The AIWC appointed a sub committee under the chairmanship of J. Copeland to enquire into the conditions of women and children employed as organized labour. The demands included medical facilities, separate latrine facilities, and crèches for children up to six years of age, maternity benefits and appointment of women factory inspectors.23 When Subhash Chandra Bose was President of the Indian National Congress, it was decided to set up a National Planning Committee (NPC) under the formal direction of Jawaharlal Nehru, to plan for post-independence economic and social development. A sub-committee on Woman’s Role in Planned Economy was established, of which many prominent women’s organizations and women Congress leaders were members.24 The members included Lakshmibai Rajwade (Chairman), Sarojini Naidu, Vijaya Lakshmi Pandit, Hansa Mehta, Maneklal Premchand, Beghum Shah Nawaz, Beghum Hamid Ali, Sushama Sen and Radhabhai Subbaroyan. The sub-committee began meeting in September 1939 and presented its final report to the NPC on August 31, 1940. Though the NPC reports were never systematically utilized, the women’s subcommittee report on reform of personal law offers some insight into the attitudes of Congress leaders on this issue in 1940. The women’s report spoke in terms of equal rights and socialism and justified reforms by referring to the Congress Karachi Resolution of 1931 (guaranteeing sex equality) and to the role of women in the Indian national movement. The recommendations concerning 22 Renuka Ray, ‘A Plea for a Commission on the Legal Disabilities of Women’, Modern Review, 1934, pp. 529–32. 23 AIWC, Annual Report, 1933–4, pp. 97–109. 24 K.T. Shah(ed.), Women’s Role in Planned Economy, National Planning Committee, Bombay, 1947, pp. 198–231.

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personal law reform concerned disabilities that women faced in Hindu law. This campaign of women’s organizations was one major reason for the appointment of the Hindu Law Committee by the government in 1941.

WOMEN’S FRANCHISE The women’s movement was also instrumental in the attainment of voting rights for women, through a long struggle with the government.25 The struggle for women’s suffrage started in the first half of the twentieth century. In 1917, when Montague, Secretary of State for Indian Affairs in the British Government visited India, an all India women’s delegation presented a petition to him that the word ‘Indian people’ should include Indian women. However, the Southborough Franchise Committee dealing with franchise regulations, rejected the demand, stating that social conditions were not favourable enough to allow women to participate in the voting process. Dissatisfied with the turn of events, a four-member women’s delegation comprising Sarojini Naidu,26 Annie Besant, Herabai Tata and Mithan Tata went to England to give evidence before a joint Parliamentary Committee.27 As a result of these efforts, the elected legislature was provided with the option to decide whether or not to offer franchise to women. A series of legislations followed in different provinces, allowing limited franchise to women. Limited franchise meant that only those women who qualified certain property and education criteria were allowed to vote. In 1921, the Madras Province granted limited franchise. This lead was followed in the Bombay Province in 1921, in the United Provinces in 1923, in Bengal and the Central Provinces 25

For a detailed account of the struggle for women’s franchise, see Geraldine Forbes, ‘The Demand for Women’s Franchise in India: 1917–1937’ in Vina Majumdar (ed.), Symbols of Power: Studies on the Political History of Women in India, Allied Publishers, Bombay, 1979. 26 Padmini Sengupta in the biography of Sarojini Naidu wrote, ‘The suffrage question claimed Sarojini Naidu’s attention as much as the political struggle for freedom. From 1917 to 1919, she became more and more popular as a soul stirring orator, a poetess, a politician, an unofficial ambassadress of India to foreign lands, and an acknowledged leader of the united Indian people’, Sarojini Naidu: A Biography, Asia Publishing House, Bombay, 1966, p. 154. 27 Basu and Ray, p. 55.

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in 1925, in Punjab in 1926 and in Bihar in 1929. In 1923, the central legislature granted women the right to vote for the Indian Legislative Assembly. In 1931, women were given the right to contest elections, though subject to property and educationspecific criteria. In 1935, the Government of India Act relaxed the franchise qualifications for women, with the result that a much greater proportion of women were given voting power. The following criteria were specified for a woman to be eligible to vote: (a) minimum age of 21 years, (b) ownership of property and a tax payer, (c) ability to read and write in any Indian language/dialect, (d) wives/widows of tax paying male, (e) wives/widows of officers and soldiers of Majesty’s regular forces. The Government of India Act, 1935 also reserved some seats for women in the federal and provincial legislations. These relaxations in the Government of India Act, 1935 increased the franchise to a pitiably insignificant 0.06 per cent of women, covering the elite while totally neglecting the poor, illiterate village women. However, even a limited success was a progress in the right direction and enthused women’s organizations to more forcefully pursue the goal of gender justice. Women’s franchise thus gave thrust to the protest for broader gender reforms in Indian society. The city of Bombay as well as its surroundings saw unprecedented activity, mainly because of the co-existence and dialectics of a thriving women’s movement and a deep-rooted patriarchal orthodoxy. Thus, Bombay was destined to be a major ‘arena of gladiators’ where the liberal and orthodox clashed over the Hindu Code Bill.

THE GROWING NEED FOR HINDU LAW REFORM Another factor which influenced the evolution of the Hindu Code Bill controversy in the twentieth century was the growing necessity of Hindu Law reform felt by the colonial administration in India. In fact, the legislative debate over the Hindu Code Bill was a continuation of the process of law reform initiated by the British in the late eighteenth century. The evolutionary process of law in India is captured in the present section, by analysing the motivations of the participants in the process of law formation, that included liberal reformers, women’s organizations, orthodox segments and the Government of India.

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Attempts at Codification of Hindu Law by the British The attempt to codify law in modern India began in the late eighteenth century under the patronage of the colonial rulers after the East India Company acquired Dewani of the Mughal emperor, in respect of the provinces of Bengal, Bihar and Orissa.28 The fundamental law of the time was the Islamic law. This recognized the importance of Hindu customs for settlement of disputes among the Hindus while reserving for itself exclusive jurisdiction in matters of crime and fiscal administration. Hindu courts of Marathas and small rulers of Bengal and Bihar consulted pandits for their legal opinion on several matters. The Hindu scriptural law traces its origin to divine revelations. It is also seen that plurality of law has been an essential characteristic of Indian communities.29 Most disputes were settled by village and caste councils as per the ruling local customs which, though influenced by the shastras and ancient commentaries, were flexible adaptations of smritis and Dharmashastras.30 The smritis were a collection of precepts written by the rishis stressing the overriding prominence of morality. The traditional laws of ancient India were ‘moral’ texts and not a direct command of a monarch or a sovereign to persons subjected under them. Most of the leading smritikars, Medhatithi, Vigraneshwara, Yagnyavalkya and Brihaspati all stressed that the shastras were of popular origin and not the will of any supreme temporal power. The important Dharmashastras of Gautama, Boudhayana, Apastamba, Harita, Vashistha, and others accepted the diversity of legal customs in Indian society and showed respect to different schools of law. Although there was no single uniform body to legitimise a uniform code for diverse communities, the British, presuming that the personal laws in India must have drawn legitimacy from some fundamental religious source, attempted at a definitive grouping of the Indian legal system. Therefore, they started promoting shastric education by starting Sanskrit Universities in Calcutta and Benaras. 28

After the decline of the Mughal power, the Company officers intervened in the legal affairs and had to adjudicate over family and civil disputes. See M.P. Jain, Outlines of Indian Legal History, N.M. Tripathy, Bombay, 1966, p. 24. 29 See Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India, Oxford University Press, New Delhi, 1999, p. 12. 30 Sir Dinshaw Mulla, Principles of Hindu Law, Sixteenth Edition, S.T. Desai (ed.), N.M. Tripathy, Bombay, 1994, p. 3.

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In 1772, Warren Hastings declared that the scriptural texts of the Hindus and Muslims would be the basis of legal governance. The Quran would apply to the Muslims and shastras to Hindus. In May 1773, eleven pandits started preparing a digest of Hindu laws as per specifications of Hastings. In February 1775, Vivadarnava Setu or ‘Bridge across the Ocean of Litigation’ was completed in Sanskrit. It was first translated in Persian and then into English by N.B. Halhed.31 This translation, along with an introduction by Hastings, was sent to London where it was printed under the title A Code of Gentoo Laws or Ordinations of the Pandits in 1776. Topics covered in this Code were decided by Hastings based on the requirements of the courts in the mufassil. Derrett has termed this as the beginning of the ‘modern shastric literature’ which in his opinion was a new shastric code arrived at by the efforts of unification by the pandits.32 In the 1780s, due to a large number of operational confusions, William Jones worked at a more definitive code of Hindu law. He translated the Manusmriti, and died while almost finishing the task of compilation of a digest with the help of pandits. H.T. Colebrooke finished the work by translating the digest of Jagannatha Tarkapanchanana’s Vivada Bhargarnara or ‘Ocean of Resolution of Disputes’.33 Thus, the process of Anglicization of the scriptures through translation of ancient texts was initiated to promote good governance in India. The initial activity of translation was primarily in the Bengal region. The translated version of the Manusmriti became very popular among the colonial rulers.34 Colebrooke’s translation of Dayabhaga and Mitakshara became the two most quoted sources of Hindu law in court judgments.35 While the administrators of Bengal, in their quest for original Hindu sources, neglected local customs, Bombay Presidency regulations in the same period did show some flexibility to incorporate local customs. For instance, the 1799 regulation under John Duncan did not follow the Bengal school. Elphinstone as Governor of Bombay Presidency introduced common laws based primarily on customs 31 Madhu Kishwar, ‘Codified Hindu Law: Myth and Reality’, Economic and Political Weekly, Volume XXIX, No. 33, August 13, 1994. 32 J.D.M. Derrett, Religion, Law and the State in India, Faber and Faber, London,1968, p. 69. 33 Kishwar, Codified Hindu Law, p. 2145. 34 Agnes, Law and Gender Inequality, p. 44. 35 Ibid., pp. 44–5.

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and not on religious texts.36 The Regulation Code, 1827 (also known as the Elphinstone Code) was prepared by Harry Borradaile and Arthur Steele.

Hindu Law in the Nineteenth Century With the emergence of the new law codes framed under British patronage, two things became clear. First, in many cases the local law turned out to be more flexible than the rigid Hindu codes. Secondly, and more importantly, British rationality came into conflict with a number of aspects of Hindu law which they found derogatory to women. In the nineteenth century, under pressure from their own conscience and the pressures of social reformers, the British started reforming those Hindu laws which they found extremely harmful to women. There began the evolution of laws for women which through the entire post-vedic period had remained static and was primarily defined by the patriarchal stance of Manusmriti. The British administration accepted the embedded patriarchal biases except for certain extremely violent acts. As a result they were in favour of social reformers like Raja Ram Mohan Roy and Ishwarchandra Vidyasagar who attempted to give respectability to widows by trying to stop sati and through widow-remarriage, as discussed in the previous chapter. Also, since the 1810s, there had been queries from district magistrates regarding the official stance towards sati. After 1812, the Government of Bengal had sought to regulate the practice in accordance with the shastras. For some years the British Parliament refused to legislate against sati which they felt would constitute interference in the religious affairs of the Hindus. After 1815, however, there was a sharp rise in the number of sati, partly because 1817–18 were years of cholera. In 1818, William Bentinck prohibited sati in Bengal. When Bentinck became the Governor General of India, the Sati Abolition Act was passed in 1829 for all provinces of colonial India. The mid-nineteenth century also saw a campaign to improve the status of Hindu widows in Bengal. Ishwarchandra Vidyasagar launched a campaign to remove the ban on widow remarriage in 1850s, as highlighted in the evolution of gender discourse in Chapter 1. Vidyasagar submitted a petition to the Governor General of Bengal 36

Ibid., pp. 45–6.

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on this issue in 1855. In 1856, based on Vidyasagar’s petition, the East India Company imposed a ban on widow remarriage.

Hindu Law in the Twentieth Century The onset of the twentieth century saw an intensification of pressures for changing the legal status of women. The AIWC attempted to uplift women’s education as well as remove the legal liabilities of Indian women. The Indian Penal Code of 1860 set the minimum age of marriage for girls at ten and the age of Consent Bill of 1891 raised it to twelve. In 1929, the Child Marriage Restraint Act came into force, in which the minimum age of a bride was fixed at fourteen. This was done in the light of the Census of India, 1921 which showed that a sizeable portion of widows were very young (Table 2.1). Table 2.1: Age Structure of Widows, 192137 Age (in years)

Number of Widows in 1921

Below 1 Year

612

Under 5 Years

2024

Under 10 Years

97857

Under 15 Years

332024

Most of these young widows were not allowed to remarry. This deplorable situation forced the government to fix a minimum marriage age for Hindu girls at fourteen years in British India.38 A formal statement in support of the Child Marriage Restraint Act of 1928 was adopted by the AIWC. By 1934, the AIWC passed a resolution asking for a Hindu Code to remove disabilities of women in marriage and inheritance. In 1937, in spite of strong resistance from the orthodox quarters of the Central Legislative Assembly, the Hindu Women’s Rights to Property Act was passed. It gave the Hindu widow, who had previously been excluded from inheritance, a right to intestate succession, equal to a son’s share in separate property among those governed by Mitakshara and in all property among these governed by Dayabhaga. It also gave her the same interest as her deceased husband in the undivided joint families. 37

Census of India, 1921. Harbilas Sarda, ‘Child Marriage Act’, Stri Dharma, Volume XIII, No. 3, January 1930, pp. 77–8. 38

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However, this was only a limited interest, as this on her death would go to the husband’s heirs. Also on remarriage, the widow could forfeit such property. In retrospect, legislative measures affecting women in the preIndependence period started in the nineteenth century due to the efforts of social reformers The codification process of Hindu law, initiated by Warren Hastings in the late eighteenth century, was formulated in the spirit of non-interference by the colonial rulers who were more interested in preparing a uniform code to be applicable to their territories. In the process, however, they created the grounds on which the battle for women’s rights began in the twentieth century. The process of educating women which started amidst strong opposition in the early nineteenth century gained momentum in the twentieth century. The educated class of women organized themselves in their struggle for rights. The necessities of the nationalist struggle also brought women into the public sphere. During the pre-Independence period, therefore, women’s issues came into the forefront as a result of persistent efforts by social reformers and women’s organizations. This period prepared the groundwork for further movements in the promotion of the status of women in independent India. In the context of Bombay, Elphinstone exercised the flexibility to introduce laws in accordance with customs, ignoring rigid shastric texts. The trend continued thereafter, with Bombay taking a pivotal role in the Age of Consent Bill debates in the 1890s. Even in the first half of the twentieth century, Bombay Province was among the first to have abolished polygamy, and was among the pioneers to have passed a divorce law in the form of the Bombay Hindu Divorce Act, 1947. Thus, Bombay was not only at the forefront of women’s movement, it was also ahead in terms of legal reforms. These legacies definitely played a pivotal role in making the debate over the Hindu Code Bill truly vibrant.

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3 EVOLUTION OF THE HINDU CODE BILL

T

he initial efforts of enacting a Hindu Code Bill, comprehensively covering all aspects of Hindu customary practices, can be traced back to the efforts of the Indian Legislative Council in the 1920s. The immediate post World War I years witnessed significant changes in Indian politics, the crucial landmarks being Secretary of State Montague’s Declaration of August 20, 1917 followed by the Montague-Chelmsford Report of 1918, the Government of India Act of 1919, the entry of Gandhi in the Indian political arena and the emergence of mass nationalism. The Montague-Chelmsford reforms in 1918 promised a new scope for the Indian legislative initiative and influence in regard to social legislation with the overall objective of ‘the gradual development of self-governing institutions, as an integral part of the British empire’.1 The emergence of Gandhi was associated with the infusion of renewed vitality into the national movement by widening its base and also by bringing women into the nationalist fold. The above two developments followed different trajectories. The British motive force behind the Montague-Chelmsford reforms and the subsequent Government of India Act of 1919 was to push Indian politicians towards a more democratic style of functioning within the bicameral system of governance, thereby moderating its radical and revolutionary potential. On the other hand, the developments in 1921–2 and the Non-Cooperation Movement of the Congress in 1921 not only neutralized the British intent but served towards the creation of a mass base for the Indian national movement. In the context of legal rights of women, the MontagueChelmsford Reforms endorsed the social reformers’ concern for 1

Sumit Sarkar, Modern India: 1885–1947, Macmillan, New Delhi, 1983, p. 165.

Debating Patriarchy. Chitra Sinha. © Oxford University Press 2012. Published 2012 by Oxford University Press.

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the improvement in the status of women, within its overall faith in legislative modernization. Prior to 1921, the administration of Hindu family law was reliant on case-law precedent and their subsequent interpretation. Customary law increasingly became a prisoner to the rigid structures of administrative jurisprudence.2 The British followed a policy of non-intervention, by sticking to the translations of shastric texts rigorously, and believed that family law reforms, if any, were to be initiated through the emergence of a group of Indian lawyers. This belief turned out to be true in the first round of debates over the Hindu Code Bill initiated by the Indian lawyers within the legislature in 1921. The debate started in 1921 when Mahamahopadhyaya Ganganath Jha, a member of the Viceroy’s Legislative Council urged codification of the Hindu law. The debate has been termed as a ‘lawyer’s debate’ or a classical debate over codification of Hindu law, with very limited political participation, as the Congress Party members stayed away from the legislature during the civil disobedience movement and the women’s movement in India in its infancy failed to take advantage of the platform to air their views. The matter was ultimately shelved as it was considered too difficult to handle.3 The Mahamahopadhayaya was considered an extremely learned scholar of Hindu shastra.4 He strongly felt the need for reform of Hindu law at that time and wrote a voluminous Hindu Law in Its Sources, a timeless classic on the Dharmashastra, which was published in 1932. The interest in clarifying Hindu law grew, with several publications on Hindu law. These included, among others, P.V. Kane’s History of Dharmashastra5 in 1930, S.V. Gupte’s Hindu Law in British India in 1947 and Sir Dinshaw Mulla’s Principles of Hindu Law in 1950. Mention must also be made of Sir J.D. Mayne’s Hindu Law and Usage in 1906, which 2 J.D.M. Derrett, ‘The Administration of Hindu Law by the British’, in Comparative Studies in Society and History, Volume IV, No.1, Cambridge University Press, 1961, pp. 10–52. 3 J.D.M. Derrett, Hindu Law: Past and Present: being an account of the controversy which preceded the enactment of the Hindu Code, the text of the Code as enacted, and some comments thereon, A. Mukherjee, Calcutta, 1957, p. 55. 4 Derrett has written about him, ‘(he) knew more of the classical Hindu Law than most people’, Ibid., pp. 55–6. 5 Dr P.V. Kane, History of Dharmashastra, Bhandarkar Oriental Research Institute, Poona, 1930.

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though predating the others, remains equally relevant.6 While there was no demonstrable impact of the debate over the Hindu Code Bill in 1921 on feminist ideology, the first legislative debate over the Hindu Code Bill remains nevertheless relevant from the historical point of view as a predecessor to debates on the Hindu Code Bill in the 1940s and 1950s. Also, as we have noted, the debate spurred considerable research in legal circles. While the debate in the legal circles in 1921 died down, the controversies over Hindu law reform continued. In 1920s and 1930s, attempts to improve the legal status of women went on, primarily concerning the property rights of women.

THE HINDU CODE BILL DEBATE IN THE 1930S In the 1930s, Hindu women’s right to property became the subject of intense dialogue in legal circles.7 Women’s organizations campaigned for a comprehensive code of Hindu laws rather than the piecemeal legislation done since the early 1930s. In 1934, the AIWC passed a resolution demanding that a commission be appointed to enquire into the entire question of eliminating the legal disabilities of women.8 The stance taken by women’s organizations found support from a number of members of the Legislative Assembly, including Hari Singh Gaur, Har Bilas Sarda, G.V. Deshmukh, and Sir Moropant Joshi. V.V. Joshi, a high court pleader from Baroda, wrote a pamphlet highlighting the need for reform in Hindu law as the times had changed but Hindu law had failed to respond to the changing times.9 Pressure from women leaders led to the Indian National Congress ratifying the demand for a uniform code.10 6 These books are primarily legal texts, not meant to be inputs for historical research. 7 Flavia Agnes observed that when the edifice of personal laws was erected, there were strong political forces that influenced the legal process. Thus, Agnes stressed that women’s law is interrelated with the political and social forces of the time. She wrote, ‘Hence, the edifice is rife with the political undercurrents of the period. The struggle for women’s rights within the realm of family laws is entrenched within these undercurrents and has become an integral and inseparable part of the discourse.’ In Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India, Oxford University Press, New Delhi, 1999, p. 59. 8 AIWC, Annual Report, 1934, p. 45. This stand was reiterated by the AIWC in their annual session in 1941. In AIWC, Annual Report, 1941, p. 36. 9 V.V. Joshi, The Legal Disabilities of Women (pamphlet), AIWC, 1933. 10 Agnes, Law and Gender Inequality, p. 68.

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In 1937, G.V. Deshmukh, a liberal member of the first Federal Legislative Assembly, introduced a Bill in the Federal Legislative Assembly on Hindu Women’s Right to Property. The introduction of the Hindu Women’s Right to Property Act, 1937 generated heated controversy both due to its internal contradictions and also due to the far reaching social implications of the Act. This Act was designed to give Hindu women a right to property in Hindu undivided families, thereby deviating significantly from the Mitakshara school’s position with respect to women’s right to inheritance. It gave the Hindu widow, who had previously been excluded from inheritance by the son, agnatic11 son and agnatic great grandson of her husband, a right to intestate succession, equal to a son’s share in separate property among those governed by Mitakshara and in all property among these governed by Dayabhaga. It also gave her the same interest as her deceased husband in the undivided joint families. This was a limited interest as this on her death would go to the husband’s heirs. The property considered for this purpose excluded control over agricultural land, thereby excluding a very significant proportion of property in the agrarian, quasi-feudal structure. The Act also removed lack of chastity in women as a reason for disqualification from property rights. The Hindu Women’s Right to Property Act, 1937 was controversial from the very beginning. Most of the social groups were dissatisfied with the Act.12 It failed to find favour among the conservative elements in society as it bestowed women with the right to property. At the same time, liberal sections were also disappointed with the legislation for not being progressive enough. The initial impulse of the debate may be traced to the Federal Court judgment in 1940. On a special reference under the Section 213 of the Government of India Act of 1935, the Federal Court decided that the Hindu Women’s Right to Property Act 1937 did not operate to regulate succession to agricultural land in the Governor’s provinces, while they did operate to regulate the devolution by survivorship of property other than agricultural land. 11

Agnatic refers to lineal male descendant. Agnes, Law and Gender Inequality, p. 69, has observed that Deshmukh was ridiculed for introduction of the Hindu Women’s Right to Property Bill. The Act did not cover several progressive aspects including a daughter’s share in her father’s property. 12

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In effect, the federal court judgment ruled that Hindu Women’s Right to Property Act, 1937 was not valid in the devolution of agricultural land. This was because agricultural property fell in the ‘jurisdiction of provincial legislation’ while the Hindu Women’s Right to Property Act of 1937 was a central legislation. Provincial reforms were also necessary to bring into its fold the crucially important property of agricultural land in an agrarian society like India.13 This ruling by the Federal Court caused a stir in society. Women’s organizations urged the government to make necessary amendments to the legislations in the provinces. A report in The Times of India, May 13, 1941 ‘Revising Hindu Law: Social Reformers Memorandum’ stated, The law of succession is not the only branch of Hindu law which caused hardships to Hindu women and the orthodox sections of the society vehemently protested against these kinds of piecemeal legislation. What could not be prevented in an era of rational modern existence in 1937 was sought to be subverted through logical arguments.14

An editorial in The Times of India on June 18, 1941 cautioned the attempts at piecemeal legislation—‘There is no doubt that Hindu law is in a state of confusion and piecemeal tinkering with any law is not desirable.’15 The Bill was circulated for eliciting public opinion on April 17, 1936 and was referred to a Select Committee on October 15, 1936. The amended Bill was taken up for consideration and finally enacted in 1937. The Hindu Women’s Right to Property Act, 1937 suffered from several defects. There existed two different rules for succession, one relating to agricultural land and the other relating to other forms of property. Thus, the Act did not go far enough in an agrarian society like India, considering the fact that the major asset was beyond the purview of the Act. Secondly, and more crucially in the context of women’s rights, the progressive content of the Act, in terms of its removal of disqualification of a widow on the grounds of her being unchaste, faced hostile opposition from the traditional sections of society. The debate was triggered by the decision given 13 This was pointed out by the Report ‘Hindu Women’s Rights’, in The Times of India on April 5, 1941, p. 6. 14 ‘Revising Hindu Law: Social Reformers Memorandum’, The Times of India, May 13, 1941, p. 10. 15 ‘Hindu Law’, Editorial, The Times of India, June 18, 1941, p. 6.

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by the Federal Court in Bombay in 1941 (Akoba Laxman Pawar v. Sai Genu Laxman Pawar). The court’s decision of not taking away the right to inheritance of a widow on the ground of her being unchaste came in considerable conflict with the intensely patriarchal consciousness of Indian society. This caused an interesting difference among courts. While in the Akoba Laxman v. Sai Genu case of 1941, the Bombay High Court ruled that chastity of a widow was not a necessary precondition for being eligible for property, the Madras and Calcutta High Courts in two other cases gave precisely the opposite ruling, denying unchaste widows the right to inherit property.16

THE HINDU CODE BILL DEBATE IN THE 1940S These ambiguities in relation to women’s right to property created the ground for the reconsideration of the Act. The government, under considerable pressure on this issue, appointed a Hindu Law Committee on January 25, 1941 with the following terms of reference: To examine the Hindu Women’s Right to Property Act, 1937 with particular reference to the Hindu Women’s Right to Property (Amendment) Bill, promoted by Akhil Chandra Dutta; (i) The Hindu Women’s Right to Property (Amendment) Bill, promoted by. A.N. Chattopadhdhay and others; (ii) The Hindu Women’s Right to Property (Amendment) Bill, promoted by G.V. Deshmukh and Kailash Biharilal; (iii) The Hindu Women’s Right to Property (Amendment) Bill, promoted by N.V. Gadgil; and (iv) The Hindu Women’s Right to Estate Bill, promoted by G.V. Deshmukh. and to suggest such amendments to the Act as would resolve the doubts as to the construction of the Act and clarify the nature of the right conferred by the Act upon the widow; and remove any injustice that may have been by the Act to the daughters.17

The Committee was given the additional responsibility to examine and advice on the Hindu Law of Inheritance (Amendment) Bill, promoted by K. Santanam; and the Hindu Women’s Right 16 Derrett, Hindu Law: Past and Present, p. 302. The Hindu Succession Act, 1956 totally removed unchaste conduct as a disqualification. 17 Report of the Hindu Law Committee, Government Press, Madras, p. 6.

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to Separate Residence and Maintenance Bill, promoted by G.V. Deshmukh. The Hindu Law Committee, also known as the Rau Committee, was headed by B.N. Rau, a judge of Calcutta High Court. He was the Chairman and three other lawyers were members, Shri Dwaraka Nath Mitter, ex-Judge of the Calcutta High Court, Shri R. Gharpure, Principal, Law College, Poona and Rajratna Vasudev Vinayak Joshi, a lawyer from Baroda.18 The Committee was constituted in January 1941 and till May 1941 met only at intervals, ‘the members studying in their own homes after each meeting the questions for discussion at the next.’19 A three-part questionnaire was prepared by the Committee and circulated throughout the country. Part I of the questionnaire dealt with the Hindu Women’s Right to Property Act, 1937, parts II and III dealt with the other two Bills under the purview of the Committee. The questionnaire was distributed among high court judges, distinguished lawyers and citizens, members of the central legislature, high court bar libraries, and heads of religious institutions, women’s associations, social reform associations and pandits’ associations. The questionnaire was also published in leading newspapers in the country. The basic features of part I of the questionnaire are shown in Table 3.20

Salient Features of the Report of the Hindu Law Committee, 1941 The Report of the Hindu Law Committee, 1941, submitted on June 19, deconstructed women into three categories: widow of the deceased (whose property was to be inherited), the widowed daughter in law and the daughter. Much of the report was devoted to the consequences of the Acts under review on these three constituents among women. The focus was not so much on gender differences, but on the conferment of property rights among different categories of women within the family. A major part of the questionnaire as also the report debated on the rights of the daughter vis-à-vis the widow. This mirrored the concerns expressed by the vocal segments of the society to the Committee 18

Ibid., p. 1. Ibid., pp. 2–3. 20 Ibid., p. 4. The questionnaires relating to parts II and III are not discussed, as they fall outside the scope of the present study. 19

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(the Rau Committee) and in other forms of media. Notably, the epicentre of the debate was the excessive rights given to the widow vis-à-vis the daughter. The Report of the Hindu Law Committee, 1941 observed: We must now say a few words on the injustice apprehended on behalf of the daughter by the various members of the legislature who have given notice of remedial Bills. There is no doubt that in certain conceivable contingencies the Acts in question have, by introducing the daughter-in-law as an heir prejudiced to some extent the rights of the daughter…. But even if we take the view most unfavourable to the daughter, it is not enough to confine our attention to certain classes of cases where her rights have been injured; it is also necessary to see whether there may not be other classes of cases in which her rights have improved as a result of the Acts; and it is only upon balancing the losses and gains that we can come to any conclusion as to the net results of the Acts.21

Table 3.1: Questionnaire of the Hindu Law Committee, 1941: Relevant Features 22 Part

Question

Subject

I

1.

Relates to constitutional difficulties, asks the respondent whether the centre should legislate and make the Hindu Women’s Right to Property Act applicable to British India immediately, leaving the provinces to follow, (in which case the Act not cover succession to agricultural land) or the introduction of the Act should be dependent on the provincial legislations (in which case all forms of property may be covered, including agricultural land, but the process may involve some delay).

2.

Relates to the rights of a widowed daughter-in-law and the daughter in intestate succession, the respondent is asked whether the daughters status, married/unmarried, rich/poor will make a difference and secondly, whether a daughter who is a widow without a male issue shall be excluded from any right to property.

3. to 5.

Under the Act of 1937, as amended by the Act of 1938, the Hindu widow and widowed daughter-in-law have a right to property while the daughter has no right. This questions deal with relative shares of the widow vis-à-vis other members of the family. (contd)

21 22

Ibid., para 27, pp. 17–18. Source: Report of the Hindu Law Committee, 1941, p. 4.

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Table 3.1 Part

53

(contd)

Question

Subject

6. and 7.

Asks for respondent’s opinion on the share of a widow with an adopted son.

8.

Property rights of a sudra’s widow vis-à-vis a dasiputra.

9.

Property rights of widow vis-à-vis son from anuloma marriage (A locally valid marriage (inter-caste)).

10.

If a Hindu dies with two widows and a son, what would be the relative shares of the widows.

11.

Relative shares of two widows, if they were of different caste.

12.

Property rights of widow if she was unchaste, if she remarries, or becomes a convert to any other religion.

14.

Property rights in the event of death of any of the heirs.

15.

Mitakshara Property Rights.

16.

Alternatives to promote uniform Hindu law in the country.

The report then carried out a hypothetical exercise, examining the consequences of the Acts on different situations involving succession of property in the presence of both a widowed daughter-in-law and a daughter. Seven possible cases were examined by the Committee, of them, ‘in three the daughter’s position is not affected at all by the Acts, in two others she loses and in two others she gains.’23 The report thus concludes that it is difficult to say how on balance daughters were worse off, as has been suggested by legislators A.C. Dutta, A.N. Chattopadhyaya and others. The report found the views of these legislators biased, for ignoring the bigger picture and just looking at a situation where only the widow and the daughter were claimants to the intestate property. The Committee thus felt, Viewing the problem in all its aspects, we ourselves feel that the injustice done to the daughter and other heirs by promoting the widowed daughterin-law over their heads is not of so clear or pressing a character as to need immediate relief and that it may well await the general review of the law of succession which we have proposed.24

Secondly, the Hindu Law Committee addressed the issue of disqualification of unchaste widows from property rights in the 23 24

Ibid., para 28, p. 19. Ibid., para 29, p. 20.

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Hindu Women’s Right to Property Act of 1937. The disqualification clause dealt with the removal of property rights of a Hindu widow, if she was found out to be unchaste. The Hindu Law Committee,1941 invited public opinion through its questionnaire and commented, ‘The majority of the answers we have received are that the disqualification should not be removed and even amongst women there is a considerable body of opinion that it should remain.’25 The Hindu Law Committee was caught in the dilemma of choosing between orthodox and liberal views. The orthodox opinion represented the majority view that emerged from the responses to their questionnaire, and advocated reintroduction of disqualifications of a widow due to unchaste conduct. However, this view faced a ‘storm of criticism from those who would like to see the disqualification removed’ which included views of the pan-Indian women’s organizations.26 The Committee felt that the orthodox view was extremely sensitive, but agreed with the view of women’s organizations that the disqualification clause is very prone to abuse and widows might suffer in the clause. In the case of the more progressive Bills advanced by (a) G.V. Deshmukh and Kailash Biharilal and (b) N.V. Gadgil and (c) G.V. Deshmukh, the report pointed out that these Bills essentially sought to confer new rights to women, viz., the right to absolute estate, instead of limited estate. The report noted that the majority of the opinion in the responses to the questionnaire was in favour of absolute estate to women in the case of movables. The report also cited ‘a weighty body of opinion among Indian scholars that the doctrine of the Hindu Women’s limited estate has no real foundation in the Smritis.’27 However, as the terms of reference did not give any scope to the Committee to increase the rights of women, the Committee did not take a stand on this. The report, interestingly, in several places applauded the role of women’s organizations in the country. The latter translated the questionnaire into the vernacular languages and distributed it widely. The women’s organizations, it was observed in the report, also responded to the questionnaire. The diversity of views

25

Ibid., para 11(ii), p. 5. Ibid., para 24, p. 16. 27 Ibid., para 32, p. 21. 26

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expressed by women was also noted by the report.28 On the role of the women’s associations, the report noted: Indeed, many of the women’s organizations to whom we issued our questionnaires have, in their replies, asked for a thorough revision of the entire law, though with particular reference to women’s rights, rather than legislation in small doses. If we may say so, we have been greatly impressed by the earnestness and moderation of many of these associations. Those who know anything of Hindu women know that their lives are usually a round of duties, leaving little room for any thought of rights. When, therefore, even a few of them ask for better rights, no one can wish to be anything but helpful. But, as they themselves realize, the need is for a comprehensive, co-ordinated solution rather than for a quick resolution.29

Thus, the Report of the Hindu Law Committee provides some insights into the undercurrents of social forces that were in operation at that time. Traditional orthodoxy was reflected in the patriarchal concerns to disqualify the widow from property rights on the grounds of being unchaste, and in the efforts to push the daughter on to a higher pedestal vis-à-vis the widow, and the widowed daughter-in-law. Among the recommendations of the Report of the Hindu Law Committee, 1941, the most notable was the preparation of a complete Code of Hindu law. The report contemplated the preparation of the Hindu Code in stages, beginning ‘with the law of succession, to be followed by the law of marriage and in due course by other topics of the Hindu law.’30 The Hindu Law Committee of 1941 was in favour of consensus and stated that the Hindu Code should emerge out of agreed public opinion, and controversy should be avoided as far as possible. The report was submitted on June 19, 1941.

Public Debate Over the Report of the Hindu Law Committee, 1941 In June 1941, the Rau Committee submitted its report to the government recommending (a) an enlargement of the term of reference of the Committee and (b) the need for provincial legislative changes to facilitate applicability of the Hindu Women’s Right to Property Act in agricultural landed property. The Committee 28

Ibid., p. 22. Ibid., pp. 12–13. 30 Ibid., para 36, p. 23. 29

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stressed the need for a complete overhaul of the Hindu Code as piecemeal legislation would generate insurmountable contradictions in the system as has been amplified by the Hindu Women’s Right to Property Act, 1937.31 The report aroused the Indian intelligentsia, to the extent that on the eve of submission of the report, an editorial in The Times of India pointed out, The experience of pouring new wine into old bottles has not been altogether happy and serious legal difficulties have been encountered, apart from the consternation caused in orthodox circles. In this state of things, a general revision and if possible, codification of Hindu law as a whole seems desirable. With so vast and complex a system of law, the task is bound to be formidable and controversial, and cannot be undertaken offhand without elaborate investigation and the most careful preparation of the ground. The law, at any rate, urgently needs simplification and uniformity in its application as far as practicable putting aside questions of social reform by legislative changes which are calculated to create trouble.32

The editorial clearly reflected the worries of a secular intelligentsia to bring about legislative changes in the presence of a strong, patriarchal orthodoxy. The editorial admitted the consternation caused in orthodox circles and tried to justify the need for codification of Hindu laws mainly with a view to solving the internal contradictions. On August 5, 1941, a report in The Times of India appeared which stated that the attempt to codify the succession rules were still on and the Hindu Law Committee had asked for the opinion of twenty five renowned judges on Mitakshara law. The entrenchment of a deep-seated patriarchal bias was revealed when only one out of twenty five members wholeheartedly supported the codification. It was thus very clear that the passage of the complete Code of Hindu law was full of difficulties. Women’s organizations in Bombay, provided strong support to the Bill. Through its journal, Roshni, the AIWC pressed strongly for a Hindu Code in which men and women had equal rights in inheritance and marriage. The AIWC held a Standing Committee meeting in Bombay in May 1941 to draft a statement to the Rau Committee and answer its questionnaire.33 The member in charge was Kitty Shiva Rao. Her appointment was a tactical ploy, due to her closeness to her 31

Ibid., p. 23. ‘Hindu Law’, Editorial, The Times of India, June 18, 1941, p. 6. 33 AIWC, Roshni, July, 1941, pp. 25–30. 32

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brother-in-law Sir. B.N. Rau. The women’s movement protested the absence of women on the Rau Committee and urged an expansion in the scope of the Committee so that all areas of Hindu law could be codified and reformed. The demands of the AIWC were for equal rights in inheritance, marriage, guardianship, requirement of the consent of both parties for marriage, prohibition of polygamy, and legalization of divorce. The AIWC also urged provincial legislatures to extend the Deshmukh Act to agricultural land. The Bombay Women’s Conference demanded a thorough revision of the laws relating to marriage, divorce, guardianship, and women’s right to property. The conference noted with satisfaction the appointment of a committee by the government to examine Hindu law in relation to women’s property rights, though it lamented the absence of women representatives in the committee. The Bombay Women’s Association in March 1941 appointed a Legal Disabilities Sub-Committee to discuss the questionnaire issued by the Hindu Law Committee. The sub-committee consisting of eight members was headed by Lady Rama Rau. In May 1941, the Bombay Presidency Social Reforms Association asked for a complete revision of the Hindu Code. The President of the AIWC, Rameshwari Nehru, asked for the enlargement of the scope for the Hindu Law Committee and a complete revision of the Hindu Code. A telegram by the President of AIWC read, We are definitely against the abolition of polygamy and would urge upon you to make your recommendations as strong as possible. But pending the provision of the Hindu law of marriage and the abolition of polygamy, we desire that the right to separate residence and maintenance be granted to Hindu women whose husband marries again.34

The AIWC responded to the Rau Committee Report with enthusiasm. A summary of the report appeared in the October 1941 issue of Roshni. Articles in Roshni during 1941 illustrated the AIWC arguments of inheritance and marriage reform.

The First Version of the Hindu Code Bill: The Report of the Hindu Law (Rau) Committee, 1945 Pursuant to the Report of the Hindu Law Committee, 1941, two draft bills dealing with the law of succession and law of marriage 34

Ibid., p. 23.

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were prepared by the Hindu Law Committee which was submitted to the Government of India. The draft bills were published in the Gazette of India on May 30, 194235 and thereafter circulated by executive orders to elicit public opinion.36 These bills were referred to a joint committee of both the chambers of the Indian legislature on April 2, 1943. The two bills combined together came to be referred to as the draft Hindu Code Bill. It was debated in the legislature in March 1943 and March–April 1944, on government motions to refer to a joint select committee. Part I of the Hindu Code related to intestate succession, and included establishment of a unified Hindu succession law, introduction of the daughter as a first class heir with the son (one-half of son’s share) and other female relatives as heirs, and grant of absolute estate to women.37 The Part II of the Code covered marriage and included provisions such as prohibition of polygamy and removal of religious disabilities of civil marriages celebrated by Hindus. Renuka Ray cited the opinions of pro-reform scholars, judges, and lawyers as evidence that a majority of Hindus supported the Hindu Code Bill. The opponents countered with the argument that a majority of Hindus were ignorant of the Hindu Code Bill, as it had never been translated into the vernacular languages. On March 24, 1943 the Hindu Code Bill relating to intestate succession came up before the Legislative Assembly for discussion.38 Sir Sultan Ahmed, the Law Member, observed that due to the defects of the Act of 1937 and of the amending Act of 1938, a full revision of the Acts had become an urgent necessity.39 The orthodox viewpoint was presented by Baijnath Bajoria who argued that Hindu women were not in a position to manage property. As leader of the opposition to the Bill, he moved an amendment for postponement of the Bill. Bhai Paramananda, a vocal legislator with orthodox views, criticized the government for destroying the very basis of Hindu society, when there was no demand for change among the people. The Bill, he felt, was likely 35

Pandit Shri M.C. Tiwari, A Review of the Hindu Code Bill, Benaras, 1949, p. 2. Report of the Hindu Law Committee, 1947, Appendix I, p. 40. 37 Harold Levy, Indian Modernization through Legislation: The Hindu Code Bill, PhD thesis, University of Chicago, 1973, pp. 340–5. 38 Legisative Assembly Debates, Volume II, March 24, 1943, p. 1406. 39 Ibid., pp. 1408–11. 36

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to destroy the family structure and would lead to fragmentation of property. Interestingly, he argued that if simultaneous heirship of the daughter was recognized as in the Bill, the moral obligation felt by the brother to maintain and marry off his sisters would vanish.40 K.C. Neogy, member of the Legislative Assembly from Bengal pointed out that the measure had evoked a great deal of controversy in the province of Bengal. He argued that people who were governed by the Dayabhaga school should be the last persons to take exception to the process of reform going on according to modern ideas to suit modern conditions. Unfortunately, however, the opinion in Bengal was mostly opposed to the Bill because reforms were so wide ranging, and touched the very core of Hindu religion.41 Another member of the Assembly, Lalchand Navalrai, warned women’s associations that ‘More or less we are plunged into the ocean of Western ways and we should not allow ourselves to be drowned.’42 He raised an objection regarding the right of a married daughter who would get a share from her husband’s side and also a share in her parental house. Therefore, she would get two shares whereas the son would get only one.43 P.N. Banerjee, legislator from Bengal, pointed out a number of defects in the Bill and supported its reference to a Select Committee because he felt that it would provoke the thought process among Hindus throughout India. He demanded that adequate steps be taken to secure the fullest possible publicity and discussion. Baijnath Bajoria dismissed educated Hindu women as ‘social butterflies’. Both proponents and opponents of the Hindu Code Bill argued that their positions served to strengthen Hindu law.44 The women leaders proved to be staunch supporters of the Bill. Renuka Ray narrated sufferings by Hindu women due to lack of property rights and referred to the disastrous consequences of polygamous marriages on women. Using texts which had been utilized by Ram Mohan Roy in the 1820s, she demonstrated that women had originally enjoyed inheritance rights under Hindu law. She also argued that polygamy was immoral and had to be 40

Ibid., pp. 1414–18. Legislative Assembly Debates, Volume II, March 30, 1943, pp. 1599–1602. 42 Ibid., pp. 1605–11. 43 Ibid. 44 Levy, pp. 106, 107, 129, and 130. 41

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prohibited, as sati had been in 1829. Renuka Ray’s speech strongly endorsed the need for the Hindu Code Bill. Support for the Bill came from Amarendra Nath Chattopadhyaya of Bengal who welcomed the Bill and said that men and women should have equal rights.45 He fully appreciated the idea of codification of Hindu law by which Hindu society would be brought into harmony all over the country. G.V. Deshmukh supported the Bill and refuted the argument that it would lead to the disintegration of Hindu society, contending that society was a living organism which could exist and did exist by adapting to the circumstances that emerged from time to time. Although there was opposition to the Hindu Code Bill in the legislature, the government utilized its official bloc of votes to secure referral of both parts to the Joint Select Committee. The Report of the Joint Select Committee on Part I was issued on November 13, 1943. The Joint Committee proposed the reconstitution of the Hindu Law Committee to draft a comprehensive Hindu Code. As a result of the Joint Committee’s Report, ‘A motion for the circulation of the Bill, as reported by the Joint Committee, for the purpose of eliciting opinion thereon was adopted by the Legislative Assembly on November 17, 1943.’46 Based on the recommendations of the Hindu Law Committee, the same was revived on January 20, 1944 for the purpose of formulating a Code of Hindu law, which was to be completed as far as possible under the chairmanship of Sir B.N. Rau, with Shri Dwaraka Nath Mitter, retired Judge of Calcutta High Court, J.R. Gharpure, Principal of Law College, Poona and T.R.Venkatarama Sastry, an advocate of the Madras High Court.47 The Committee was formed to prepare a draft Code on those aspects of Hindu law on which the Centre could legislate under the existing Constitution. In view of the stir in the public sphere created by the Report of the Hindu Law Committee, 1941, the Committee’s objective was to prepare a progressive Code while working towards a social consensus through interactions with opinion leaders, lawyers and organized popular voices. With this objective in mind, the Code was published on August 5, 1944. To elicit public opinion, the 45

Ibid., March 29, 1943, p. 1555. Harold Levy, p. 40. 47 Report of the Hindu Law Committee, p. 1. 46

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Committee toured a number of cities throughout India, including Bombay, Poona, Delhi, Allahabad, Patna, Calcutta, Madras, Nagpur and Lahore.48 A draft Code was prepared after recording evidence from different places. The public interest aroused by the Code was overwhelming. The first edition of 1,000 copies was rapidly sold out and a reprint of 3,000 copies was also exhausted quickly. There were two further reprints of 1,000 copies each.49 This apart, the Code was translated into several Indian languages. It was published in Gujarati, Marathi, Hindi, Bengali, Tamil, Telugu, Malayalam, Kannada, Urdu, Gurmukhi, Sindhi, and Oriya. The Rau Committee noted, ‘In Bengal, where the demand for translations of the Code, appears to have been greatest, the Provincial Government had more than 10,000 copies of the Bengali translation distributed free of cost to various persons and institutions.’50 Bombay published the translation first in Gujarati and Marathi on November 30, 1944.51 The AIWC again tried to use the influence of Kitty Shiva Rao to persuade the Rau Committee, by retaining her as a member in charge of legislation. In August 1944, she sent a circular to AIWC members analysing the draft Code, and asking branches to send their opinions to her by October, so that an AIWC memorandum could be written. Kitty Shiva Rao wrote the memorandum which was approved by the Standing Committee of the AIWC in November 1944. The memorandum supported the draft Code, but also recorded that the measures adopted were half-hearted, and did not meet the expectations of AIWC.52 Rao forcefully advocated that daughters should inherit equally with sons. The AIWC members also made their presence felt by testifying before the Rau Committee in major cities, including Bombay, Delhi, Madras and Calcutta. The AIWC also tried to ensure that women’s rights obtained proper guarantees in the Constitution. During some of the time that the Hindu Code was under consideration by the Rau Committee, the Constituent Assembly was drafting a Constitution for India. In September 1945, the British Government announced that it planned to create a Constituent Assembly composed of 48

Ibid., p. 3. Ibid., pp. 1–2. 50 Ibid., p. 2. 51 Ibid., p. 2. 52 Kitty Shiva Rao, ‘The Hindu Code’, Roshni, Special Number, 1948, p. 75. 49

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Indians to draft a Constitution for India, and, in May 1946, the Cabinet Mission Plan stated that there would be an Advisory Committee on Fundamental and Minority Rights to draft a ‘Declaration of Fundamental Rights’ for the proposed Constitution. AIWC leaders pressed demands for personal law reform guarantees in the Constitution by publicizing the AIWC position and through participation in Committee sessions of the Constituent Assembly.53 The Rau Committee held discussions in major cities in India between January 29, 1945 and March 19, 1945. The dates of discussion are presented below: Table 3.2: Schedule of Meetings of the Hindu Law Committee, 194554 Place of sitting

Dates on which witnesses were examined

Bombay

January 29–31, 1945 and February 2, 1945 (4 days)

Poona

February 3–5, 1945 (3 days)

Bombay

February 6, 1945 (1 day)

Delhi

February 8–10 and 12–13, 1945 (5 days)

Allahabad

February 17–19, 1945 (3 days)

Patna

February 22–24, 1945 (3 days)

Calcutta

February 26–28, 1945 and March 1–3 (6 days)

Madras

March 5–10, 1945 (6 days)

Nagpur

March 12 and 13, 1945 (2 days)

Lahore

March 16–19, 1945 (4 days)

In all, the Rau Committee examined one hundred and twenty one individual witnesses and one hundred and two associations, which were represented by two hundred and fifty seven persons.55 The experience of the Rau Committee during their tour was recorded in their report, There were flag demonstrations at Allahabad, Calcutta, Nagpur, Amritsar and Lahore, on our arrival in cities or when we passed through them; but the demonstrators told us that they were inspired by no personal hostility towards us, and merely wished to impress us with the strengths of the 53

Granville Austin, The Indian Constitution: Corner-Stone of a Nation, Clarendon Press, Oxford, 1966, pp. 58–61. 54 Source: Report of the Hindu Law Committee, 1947, p. 3. 55 Ibid., p. 3.

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feelings entertained by the orthodox opinion on certain provisions of the draft Code. On the other hand, there were white flag demonstrations at Amritsar and Lahore at which the supporters of the Code were present in large numbers…56

On return from the tour, when the Committee sat down to compile the report, serious differences of opinion emerged among members. Dwarkanath Mitter, an important member of the Committee, given his expertise on Hindu law, felt that as public opinion was decisively against the Hindu Code, it should not be introduced. In strong words, he stated, After consulting public opinion throughout India, I am definitely of opinion that it is not possible to have a uniform Code for Hindu India. I do not agree with those who hold that law should introduce these reforms although public opinion is opposed to them. Those who favour the view that the Hindu Code should have educative effect and accustom men and women of Hindu India to reconcile themselves to these changes which may be hard at first to bear but may be agreeable afterwards overlook the danger of interfering with Hindu law… 57

The internal differences within the Committee turned out to be difficult to resolve. Other members of the Committee were generally of the opinion that the Code should definitely be introduced, as ‘The eye of the world are upon her (India) now and it would be more than a misfortune if at this juncture she were to fail to enact within her own borders a Hindu Code in which there was equality before the law…’58 In the absence of Dwarkanath Mitter, the three other members met on November 17, 1946, and January 11 and 12, 1947 to finalise the Hindu Code Bill. On February 21, 1947, the Hindu Law Committee submitted its report to the government. The Bill was introduced to the Constituent Assembly on April 9, 1948. The major features of the Hindu Code were summarized in a speech by B.R.Ambedkar in the Legislative Assembly on April 9, 1948.59 The major provisions are explained below. 56

Ibid., p. 4. Ibid., pp. 117–18. 58 Ibid., p. 5. The observation was in reference to the image of independent India in front of the international community. 59 Constituent Assembly of India (Legislative) Debates, Volume I, p. 3629. 57

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Proposals of the Hindu Law Committee, 1947 A convenient way to understand the Hindu Code is by looking into the aspects of marriage, succession, divorce, maintenance, adoption, minority and guardianship. Instead of exploring all clauses in detail, an attempt is made here to highlight the major changes proposed by the Hindu Code in place of the existing laws, and the issues that were subsequently extensively debated and scrutinized in the official, legislative or public fora. A significant section of the Hindu Code Bill dealt with marriage. Marriage has been a very difficult term to define legally. A broad understanding is that it is a union between male and female sanctioned by the Dharmashastra. The Dharmashastra accepted marriages performed according to the samskara (ceremony), leading to a relationship based on high moral standards. There were prescribed degrees of relationship60 and the minimum age of marriage had to be fulfilled due to legal compulsions. Inter-caste marriages were prohibited except by special customs of anuloma (the groom being of higher caste, more common) and pratiloma marriages (the reverse, rarely permitted, and was regarded with abhorrence).61 In a significant departure from the extant laws relating to marriage, the Hindu Code Bill attempted to introduce two types of marriage—the sacramental marriage and the civil marriage.62 The provision of civil marriage provided for greater individual freedom in two ways. The first was that it was easier to escape the rigours of degrees of prohibited relationships where the Hindu Code proposed to be more relaxed, in keeping with the liberal outlook. The second was easier access to divorce under civil marriages, which was not accepted in traditional Hindu sacramental marriages performed under samskara. Any Hindu married through sacramental marriages as per the proposed Hindu Code Bill, may get registered under civil marriages and thereafter seek divorce. At that time, except in Baroda (Baroda Hindu Act, 1937), Bombay (Bombay Hindu Divorce Act, 1947), Madras (Madras Hindu (Bigamy Prevention and Divorce) Act, 1949) and later in 1952 in Saurashtra (Saurashtra Hindu Divorce Act, 1952), divorce was an unknown quantity in India. 60

However sapinda and sagotra marriages were prohibited. For a detailed account, see Derrett, pp. 81–91. 62 Report of the Hindu Law Committee, pp. 64–5. 61

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Thus, it represented a major structural break in social legislation, causing much consternation among puritans. On the implications of the marriage clauses of the Hindu Code Bill, Derrett observed, ‘The Act does not hamper those who do not follow the dictates of their own conscience.’63 Among the major departures from the existing laws were the removal of the requirement of caste identity in marriage and the removal of prohibition on sagotra marriages. These apart, the Hindu Code Bill proposed to remove polygamous marriage and provided for divorce (nullity) on grounds of impotency, sapinda relationships, either of them being lunatic or idiotic, and if the marriage was done by force and without the consent of guardians. However, such invalidation was applicable within three years of marriage. The divorce rules were much more liberal as compared to the Indian Divorce Act, 1869. With regard to the abolition of caste restrictions in marriage, the Hindu Code Bill arrived at a sort of compromise between the new and the old. The Hindu Code Bill said that if a Hindu chose to marry a girl outside his varna, outside his caste, or outside his sub caste, the law would regard his marriage valid. Property of a Deceased Who Has Died Intestate

The Hindu Code Bill proposed a large number of changes in the existing laws relating to inheritance. The basic change proposed by the Hindu Code Bill was to treat the heirs of intestate succession not as coparcenaries but as individuals entitled to personal property. The Hindu Code Bill proposed to confer absolute property right to the heir that would give him power to dispose of his portion of property.64 This system was prevalent in regions of India under the Dayabhaga rule. The Mitakshara rule of inheritance was thus proposed to be replaced by the provisions contained in the Dayabhaga rule. Secondly, the Hindu Code Bill removed the law of inheritance through agnates, and stressed blood relationships in determining inheritance. In the process the widow, the daughter and the widow of a predeceased son were brought on an equal footing. Additionally, the daughter is also given a share in her father’s property, equal to half of the son. This clause sought to fill up a lacuna in the Hindu Women’s Right to Property Act, 1937 63 64

Derrett, p. 121. Report of the Hindu Law Committee, pp. 54–9.

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that was severely criticized for ignoring the right of daughters. Discriminations made among female heirs on the basis of her being rich or poor, married or unmarried and with or without issue were proposed to be removed. Prior to the introduction of the Hindu Code, there existed two types of property that women inherited, stridhana and women’s estate. The Hindu Code Bill proposed that so far as right to property is concerned, there should be uniformity and uniformity should recognize that the woman had absolute property. The Hindu Code Bill proposed absolute right to women in all property, not only in her stridhana property. The Hindu Law Committee in their report of 1947 came to the conclusion that if in case of stridhana women were competent and intelligent to sell and dispose of their property, they must be held to be competent in respect of the disposal of the other property also. Accordingly, the Committee suggested that women should possess absolute property. In order to promote gender equality, the Hindu Code Bill proposed that the son would also get a share of the stridhana, half of the share of the daughter. In order to contain the oppressive practices associated with dowry, the Bill proposed that dowry given at the time of marriage will remain a trust property till the bride reaches the age of eighteen years, to ensure that neither the husband nor any other relatives could exploit the situation. Co-Parcenary Law

The Hindu Code Bill proposed to abolish the co-parcenary under the Mitakshara law, ensuring that the joint family in the Mitakshara law would be on the same footing and of the same character as the joint family under the Dayabhaga law. Share of Daughter

Both the laws, the Mitakshara as well as the Dayabhaga, included the daughter within the category known as compact series. The only distinction between the Mitakshara and the Dayabhaga was that the Dayabhaga gave preference to a daughter who is married and has a son. Next to that they gave preference to a daughter who was married. The unmarried daughter came third. The Select Committee sought to raise the status of the daughter. Under the Bill she became simultaneous heir, along with the son, the widow, the widow of the predeceased son, son of a predeceased son of a predeceased son,

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and widow of a pre-deceased son of a pre-deceased son. The Rau Committee pointed out that it was impossible to deny the fact that the daughter according to the smritis was a simultaneous heir along with the son, and that she was entitled to one-fourth share of her father’s property. That had been accepted as a text from Yagnyavalkya and also from Manu. Over time, custom had destroyed the efficacy of that text. Otherwise, the daughter would have been, on the basis of the smritis, entitled to one-fourth share of her father’s estate. The original Bill had raised the share of the daughter to one-half. There were several intricacies to the law of succession, and cannot be described except in strict legal terms, without the possibility of being misinterpreted. For the purpose of the book, it may be noted that several advancements were suggested with regard to women’s position, the gender injustices in the Mitakshara law, and removal of several constraints including the co-parcenary process was a major step forward. Adoption

With regard to adoption, the Hindu Code Bill broke new ground by allowing inter-caste adoption. Further, on grounds of equality and legal simplicity, the Hindu Code Bill restricted the right of an adopted son to challenge all alienation made by the widow before adoption, which tended to give rise to tremendous litigation and difficulties. In the spirit of rationality, the Hindu Code suggested that adoption should be simultaneous with the vesting of the property. Third, the Hindu Code Bill did away with customary practices such as krithrima adoption, godha adoption and dwaimushayan adoption. This implied that the adopted son was no longer in a position to divest the mother completely of her property. Consequently, it strengthened the widow’s position in the family by making her an absolute owner of her deceased husband’s property in the presence of an adopted son.

Report Referred to Select Committee of Parliament The heated public debate and uproar over the Hindu Code Bill was echoed on the floors of the Rajya Sabha during a prolonged debate over the Bill on April 9, 1948. This debate brought out the stark ideological differences between the liberal and orthodox segments of the legislature. B.R. Ambedkar, Minister for Law, moved the Bill to amend and codify certain branches of the Hindu law be continued.

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Even before the commencement of the debate, there was effort by orthodox elements to stall the progress of the Bill. R.V. Dhulekar, a member from Uttar Pradesh, observed that in independent India there should be a Uniform Civil Code. He stressed that the Hindu Code Bill should not be continued and instead the process of putting in place a common Code should be considered. As such objection was not sufficient to stall the debate, the motion to continue discussion on the Bill was adopted. B.R. Ambedkar moved a motion stating that the Bill be referred to a Select Committee consisting of Alladi Krishnaswami Ayyar, Bakshi Tek Chand, M. Anantthasayanam Ayyangar, G. Durgabai, L. Krishnaswami Bharathi, U. Srinivasa Mallayya, Mihir Lal Chattopadhvay, P.S. Deshmukh, Renuka Ray, P.K. Sen, Babu Ramnarayan Singh, Kishorimohan Tripathi, Ammu Swaminathan, Pandit Balkrishna Sharma, Khursheed Lal, Brajeshwar Prasad, B. Shiva Rao, Baldeo Swarup, V.C. Kesava Rao and himself. He also stated that the Committee should report back in the first week of the next session of the Assembly.65 Ambedkar then, through a rather lengthy speech, presented before the legislature the basic features of the proposed Hindu Code Bill and what it seeks to amend. He observed that the aim of the Bill was to codify the rules of Hindu law which were scattered in innumerable decisions of the high courts and of the Privy Council, which formed bewildering motley to the common man and gave rise to constant litigation. He stated, In order to reduce the confusions surrounding Hindu laws and also to make it more equitable and relevant to the contemporary Indian society, the Bill seeks to codify the law relating to certain aspects covering marriage, property, succession etc. Its ambit is thus vast, covering, among others, law relating to rights of property of a deceased Hindu, the order of succession among the different heirs to the property of a deceased dying intestate, law of maintenance, marriage, divorce, adoption, minority and guardianship.66

Debate in the Constituent Assembly The response to the motion to send the Bill to a select committee was far from enthusiastic. B. Pattabhi Sitaramayya observed 65 Constituent Assembly of India (Legislative) Debates, Volume IV, April 9, 1948, p. 3628. 66 Ibid., p. 3629.

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that the country had been waiting for long for such a piece of legislation.67 He made generalised remarks that India was under the rule of foreigners for nearly a thousand years it had not been able to affect that social progress which is incidental to changes in societies around the world and which takes place imperceptibly by force of ever-changing custom. However, under the colonial rule, Hindu law became frozen and unable to evolve with time. A time had now come when the law could be modified appropriately to suit the contemporary cultural milieu. Naziruddin Ahmed referred to the volume of opinions collected against the Bill by D.N. Mitter, and emphasized the disenchantment of the orthodox Hindu segment against the Bill.68 He added that, ‘in the opinions circulated I find the opinion in West Bengal is all one way. It is clearly against the Bill.’69 Adding further evidence to the opinions collected by the Hindu Law Committee were overwhelmingly against the Hindu Code Bill, he wanted careful consideration of the House regarding the passage of the Bill to the Select Committee. Hansa Mehta presented the viewpoint of the women’s organizations on the Bill. Terming the Bill as not being as progressive as they would have desired, she nevertheless felt that it would be a great landmark in the social history of the Hindus. She observed, Our new Constitution is in the making; we have already agreed upon the fundamental principles on which this new Constitution is to be drafted. The new State is going to be a democratic State and democracy is based on the equality of individuals. It is from this point of view that we have now to approach the problems of inheritance and marriage etc. that is before us. The Select Committee will therefore, have to see that the new Bill is drafted on these principles.70

She then went on to present the viewpoint of the women’s organizations regarding the limitations of the Bill. The limitations she mentioned were, first, the inability of the Bill to address the daughter’s share in father’s property, which was, as proposed in the Bill, only half the share of that of the son’s. Second, she observed 67

Ibid., p. 3637. Ibid., pp. 3639–42. 69 Ibid, pp. 3639–42. 70 Ibid, p. 3642. 68

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that the definition of sapinda needed reconsideration. Third, as regards the age of marriage, she felt that the Sarda Act was not very effective, and in order to prevent child marriage, there was a need to mention the age limit to be imposed by the Hindu Code for a valid marriage. She also urged that the Select Committee to consider the minimum time elapsed for divorce to be reduced from five to three years, in the case of childless women.

Select Committee Recommendations The Select Committee was also referred to as the Ambedkar Committee. It was Ambedkar who was instrumental in modifying and finalizing the draft of the Hindu Code. The Select Committee endorsed the work of the Law Minister with hardly any amendment.71 It submitted its report on August 12, 1948. The Select Committee proposed certain changes to the original Bill that was presented to them on April 9, 1948. Regarding marriage and divorce, two clauses were added which related to the restitution of conjugal rights and to judicial separation. These provisions were absent from the original Bill. With regard to adoption, the Select Committee introduced a few changes. The first change that they made was that when a father was disqualified by reason of the fact that he had changed his religion and ceased to be a Hindu, the mother was given the right to give a boy in adoption. In other words, change of religion by the father from Hinduism to some other religion was introduced as disqualification in the matter of the right to give in adoption. Further, if the widow ceased to be a Hindu, she lost her right of giving the boy in adoption, which she would otherwise have. Regarding the laws involving minority and guardianship, the first change of the Select Committee was that the power of the Hindu father as a natural guardian of his minor son would be taken away if he renounced the world or ceased to be a Hindu. The Select Committee felt that as this was a Code intended to consolidate the Hindu society and their laws, it was desirable to impose this condition, namely, that the father should continue to be the natural guardian so long as he continues to be a Hindu. The Code in its altered form also introduced another change, namely, that a Hindu widow was given power to appoint a testamentary guardian if her husband failed to appoint anyone. 71

Derrett, p. 69.

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Constituent Assembly Debates Hindu Code Bill, 1949–51 The debate on the Hindu Code Bill was revitalised, during the Legislative Council debate on February 11, 1949, within the context of the discussion on submitting the Hindu Marriages Validity Bill to a Select Committee for examination.72 The Hindu Marriages Validity Bill was brought in to address the problem of marriages that cut across religions. The deficiencies in the Special Marriage (Amendment) Act, 1872 prompted the policymakers to propose such a Bill. The bill faced criticism on the ground that as the Hindu Code Bill was on the anvil, there was no real necessity for this measure at this stage. Thakurdas Bhargava, while presenting the case for Hindu Marriages Validity Bill, observed, In the first place, my submission is, I do not know when the Hindu Code Bill will be passed. It is doubtful if it will be passed in this session, next session or some other session. We do not know. Secondly, if this Bill is accepted, it would pave the way for such of the provisions of the Hindu law as are given there and so it will be a help to passing that law. What would happen to many people who would not marry on account of this law not being there? Or if a person dies will his rights to property not be affected? At the same time, if this Bill is not allowed to be passed into law, many cases which could be governed by this law will be governed by the present law and people will suffer.73

His logic was reflective of the turmoil faced over the passage of the Hindu Code Bill, and his preference for piecemeal legislation, the very concept that is supposed to be overcome through a comprehensive Hindu Code underscored the resistance faced by the Hindu Code. The concern was echoed by Ranbir Singh of East Punjab,

72 Thakur Das Bhargava moved the Bill stating: ‘That the Bill to provide that marriages between Hindus, Sikhs, Jains and their different castes and sub-castes are valid, be referred to a Select Committee consisting of Giani Gurmukh Singh Musafir, Sardar Hukum Singh, Shri M. Ananthasayanam Ayyangar, Shri Deshbandhu Gupta, Shrimati G. Durgabai, Shrimati Renuka Ray, Shri Ramnath Goenka, Dr. Bakshi Tek Chand, Lala Achint Ram, Ch. Ranbir Singh, Shri Mahabir Tyagi, and the Mover and that the number of members whose presence shall be necessary to constitute a meeting of the Committee shall be five,’ Constituent Assembly of India (Legislative) Debates, Volume I, February 11, 1949, p. 404. 73 Ibid., pp. 419–28.

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So far as the Hindu Code Bill is concerned that is a big thing. It is not yet known whether or not the country or this House accepts it. It contains some provisions over which our leaders have expressed some sort of difference. I, therefore, fail to understand how far it is correct to shelve or reject this Bill simply for the reason that it forms part and parcel of that Bill, because if the Hindu Code Bill is passed, this measure will naturally be incorporated in it. If that is not passed, this Bill will at least have chances of being passed.74

Ambedkar was not in favour of a piecemeal legislation, as the legislature had already accepted the principle that the Hindu Law ought to be codified.75 After the adoption of the motion regarding the Hindu Marriages Validity Bill, when the discussion on Hindu Code Bill commenced, the Bill headed for some controversy with sixteen motions tabled against the motion by Ambedkar for continuation of discussion on the Hindu Code. These motions fall into three different categories. First, there were a set of motions which proposed that the Bill be further circulated for eliciting public opinion. These were forwarded by Prabhu Dayal Himatsingka and Biswanath Das. Second, there were certain motions which proposed that the Bill be referred to a different Select Committee. Further, there were motions which alleged that the Bill that was sent to the Select Committee was not the draft Bill submitted by the Rau Committee. There were two proposals for amendment.76 The amendments were placed before the House and were strongly vetoed. The first amendment was by Naziruddin Ahmad asking for circulation for obtaining further opinion thereon by the end of 1949. The amendment was, ‘That the Bill be circulated for the purpose of obtaining further opinion thereon by the end of 1949.’ The motion was negatived. The next amendment was, ‘That the Bill be re-committed to the same Select Committee, to which it was sent, for a further report thereon with reference to the original Bill which was referred to it on April 9, 1948.’ The motions against the Hindu Code Bill were early warning indicators of the strong presence of obstructionist forces within the House. 74

Ibid., p. 427. Ibid., p. 426. 76 Constituent Assembly of India (Legislative) Debates, Volume II, Part II, December 14, 1950. 75

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Again, discussions on the Hindu Code Bill took place during the period February 5, 1951 to February 7, 1951 and continued thereafter from September 17, 1951 to October 11, 1951. The passage of the clause by clause discussion was also full of obstacles, and only three clauses of the Act could be cleared through yet another voluminous, repetitive yet instructive debate on the Hindu Code Bill. The clause by clause discussions on the Bill got time to discuss only Clauses 2, 3, and 4 of the draft Hindu Code Bill as received from the Select Committee in view of the fierce debate. Clause 2 of the Code dealt with the definition of a Hindu.77 Discussions regarding Clause 2 of the Hindu Code Bill in the legislature were most extensive. The opponents of the Hindu Code Bill moved several amendment motions against this clause. Most of the amendments sought to make the Bill universally applicable to all religions. In other words, the same members of the legislature, who were against the Bill during the general discussions, were ready to accept the Bill, if it applied to all religions. This was clearly a tactic to stall the Bill, or at least to ensure the postponement of its implementation. An engrossing debate on the Uniform Civil Code took place in the Assembly, following several amendments suggested to Clause 2 to cover all citizens of India (Amendment proposed by S.R. Sarwate) 77 Clause 2 of the Hindu Code Bill read: 2. Application of Code— (1) This Code applies— (a) to all persons who are Hindus by religion in any of its forms or developments, including Virashaivas or Lingayatas and members of the Brahmo, the Prarthana or the Arya Samaj; (b) to any person who is a Buddhist, Jaina or Sikh by religion; (c)(i) to any child, legitimate or illegitimate, both of whose parents are Hindus within the meaning of this section; (ii) to any child, legitimate or illegitimate, one of whose parents is a Hindu within the meaning of this section: provided that such child is brought up as a member of the community, group or family to which such parent belongs or belonged; and (d) to a convert to the Hindu, Buddhist, Jain or Sikh religion. (2) This Code also applies to any other person, who is not a Muslim, Christian, Parsi or Jew by religion: Provided that if it is proved that such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Code had not been passed, then, this Code shall not apply to that person in respect of those matters. (3) The expression ‘Hindu’ in any portion of this Code shall be construed as if it included a person who, though not a Hindu by religion is, nevertheless governed by the provisions of this Code.

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under the purview of the Code. Indra Vachaspati’s amendment also harped on the same point that ‘the Code should apply to all Indians, irrespective of their religion, caste or creed.’78 Clause 3 of the Hindu Code Bill dealt with several clarifying definitions. Clause 4 of the Act dealt with the overriding effect of the Code over all types of customs and usages. That the fourth clause could be passed was by no means a mean achievement, as the clause gave overriding effect to the Code. The Bill could not be discussed further due to lack of time and even the marriage clauses that started from Clause 5 could not be taken up. The debate on the above clauses focussed on the following points. First, there was apprehension that the Hindu Code Bill would destroy several progressive customs in different parts of the country. Second, it was also observed that for the sake of uniformity, hardships would be imposed on the common man. Third, the Bill had not been published and circulated adequately and needed another round of public scrutiny and finally, another round of detailed discussions were necessary, at least for a week to thrash out the controversial issues.79 The Hindu Code Bill aroused widespread antagonism in the discussions that took place in February and September, 1951. The vehemence of the attack against the Hindu Code Bill and the cry of ‘religion in danger’ were echoed both within and outside the House. While opposition including the Hindu Mahasabha exploited the situation to raise anti-Congress slogans, within the Congress there was enough dissent to make Nehru worry about the future of the Code. As the discussion on the clauses could not be completed due to lack of time and the session ended, the Bill lapsed. Utterly frustrated by the turn of events, Ambedkar resigned, and it seemed that the Hindu Code Bill would not be passed in the legislature at all.

78 79

Parliamentary Debates, Volume VII, Part II, February 5, 1951, p. 2362. Parliamentary Debates, Volume XV, Part II, September 19, 1951, p. 2784.

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4 LAW AND THE PUBLIC GAZE The Hindu Code Bill in the Public Sphere

Like the Partition of India, Hindu Code Bill is a British legacy and like the heneous action of vivisection it threatens to vivisect the entire Hindu society not just into two or three, but into several parts. It is more western and Islamic than Indian and Hindu and the Hindu nation must not sit idle at this critical stage as it would mean its certain disruption and death in no time. Ramavatar Pandey, Editor, Sanmarg, in the preface to ‘Intrigues and Illegalities: Behind the Hindu Code Bill’, Delhi, 1951

A

n understanding of the debate surrounding the Hindu Code Bill remains incomplete without an examination of the public debate surrounding it. This is a neglected aspect in the existing research on the Hindu Code Bill today. Public reactions are crucial to understand the social process that went on alongside the efforts towards law formation and provides useful information on the social consciousness of the role of women in society. The pan-Indian debate contributed significantly to legislative thinking and provided crucial inputs to the Hindu family law reforms of 1955 and 1956. The present chapter is divided into five sections. The first section looks into the public opinion over the Hindu Code Bill expressed to the Rau Committee when it traversed several major cities of India during 1945. In the second section, we discuss the evidence presented in Dwarakanath Mitter’s note of dissent published as an annexure to the Report of the Hindu Law Committee, 1947. In the third section, we focus on the vibrant debate that took place in the Bombay Presidency during the early 1940s including the discourse in the Bombay Press. In the fouth section, the role of a particular social organization, the Dharma Nirnaya Mandal is examined. Finally, the Debating Patriarchy. Chitra Sinha. © Oxford University Press 2012. Published 2012 by Oxford University Press.

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fifth section of the chapter analyses two recurrent themes, echoes of which may resonate throughout the Hindu Code Bill controversy, women’s rights as mothers and succession rights.

THE NATION DEBATES THE HINDU CODE The issues surrounding the Hindu Code Bill had stirred up the nation by the beginning of 1945. As the Rau Committee toured the major cities in the nation, the Hindu Code Bill led to strong and diverse responses from the Indian population. The progressive and conservative elements within society put forth conflicting ideological arguments in support or in contradiction to the Code. While some segments of the Indian society welcomed the Code in view of its progressiveness and ability to unify diverse customary practices in the light of the modern conditions, the others objected vehemently to the Code for damaging ‘the moral citadel of religious sanctity that has so long governed the Hindu mind’.1

Opinion of Law Societies and Bar Associations The law societies and bar associations were divided in their opinion on the proposed Hindu Code Bill. The Bombay Incorporated Law Society, favouring the Code, noted that they wanted the Code enacted with minor modifications.2 The Belgaum Bar Association also embraced the Code stating, ‘The Belgaum Bar Association welcomes the efforts undertaken by the Government of India to formulate a Code of Hindu Law on modern lines and in the light of the present changed condition of Hindu society’.3 The association however felt that the enactment of the Code may ‘be held over until the close of the war, as the present is hardly the appropriate time for a cool and all sided consideration of this important subject.’ The Association also recommended that ‘the Hindu Code be translated into the main Indian languages and freely distributed in India and opinion thereupon invited from Hindu population in the rural and urban parts of India before the matter is again placed before the legislature’.4 1 Comment of a Bar Association Submitted to the Hindu Law Committee in 1945. Written Evidence, p. 146. 2 Ibid., p. 48. 3 Ibid., p. 56. 4 Ibid.

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In contrast, the Ahmedabad Bar Association vehemently opposed the codification of Hindu law. In the opinion of the Association, the codification was misconceived and unconstitutional: The Hindu law is based not on mere proprietary claims or mere social fabric of the family property as under English law or any other personal law but is primarily grounded on the sacred principles of religion which have from time immemorial been the basis of conduct of a Hindu born as such. The statutory enactment which revolutionizes these principles is fundamentally contravening the solemn promises of Her Majesty Queen Victoria’s proclamation that in matters of religion and personal law her subject in India shall have the fullest liberty.5

The Bar Association at Khargone sent out the following strong disapproval of the codification initiative to the Hindu Law Committee: ‘The members of the Bar Association, Khargone, regretfully consider the draft Hindu Code a most retrograde step in the Hindu law, as it goes beyond the established provisions of Hindu law and introduces many undesirable principles. We strongly oppose the draft code’.6 The Gadarwara Bar Association, Hosangabad wrote their view of Hindu marriages: In our view, the subject of marriage dealt in the draft is revolting. A marriage of a Hindu with a Buddhist, Sikh or Jain would be regarded as a sacramental marriage (if the Code is enacted). This will destroy the happiness of marriages and examples are not wanting to show that such marriages have been found to be unhappy, for culture and training of different communities vary.7

The Sitapur Bar Association also condemned the Code: Unfortunately, the proposed Bill contains many features which not only cut at the fundamental principles on which the Hindu law is based but comes into direct conflict with the sentiments and interests of the society. … We are of the opinion that the Bill should be withdrawn by the government failing which it will be the duty of the opposition to have the Bill thrown out.8

5

Ibid., p. 62. Ibid., p. 65. 7 Ibid., p. 146. 8 Ibid. 6

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DEBATING PATRIARCHY

Bar Associations of Bihar demonstrated strong resentment to the Bill. The Darbhanga Bar Association objected to the fact that the Code was ‘not framed by Hindu members well versed in Hindu shastras with the result that a revolutionary anti-shastric Hindu Code is produced adversely touching the very structure of Hindu society, giving a violent shock to people’s religion, beliefs and traditional modes of succession.’9 The Bar Associations of Motihari, Muzaffarpur, Purulia, Gaya, and Kathihar stressed the undesirability of the proposed Code. The District Bar Association, Patna also resented the Code and suggested that ‘It is better if a plebiscite be held or the people be given an option to make a registered declaration if they want to adopt the new law and those who do not make such a declaration should be governed by their old law.’10 The Bar Associations and Bar Councils of Madras also reflected the deep distrust with the Hindu Code Bill. Majority of the Bar Associations in the Madras Presidency disapproved the Bill. The Bar Council of Madras observed that the strongest factor towards the stability of the Hindu family is sacramental marriages leading to a lifelong bond between the husband and the wife. The Hindu Code Bill was seen as an initiative disrupting the stability of the Hindu society.11 These bar associations were private associations of lawyers. Under the British system which tried to impose a rational legal framework to manage Indian customary practices, lawyers had assumed an elitist position in Indian society. Complete domination of male gender characterized these associations along with deeply embedded patriarchal biases.

Attitude of Religious Leaders and Organizations The religious leaders commanded huge respect in society and their opinions were considered the last word on the Hindu shastras. In the debate over the Hindu Code Bill, the religious leaders presented written opinion to the Hindu Law Committee in 1945. Religious leaders, without exception, strongly condemned the Hindu Code Bill. For instance, His Holiness Sri Jagat Guru, Sri Shankarachaya Swamigai, and Sri Kanchi Kamakothi Pithadhipati, Kumbakonam sent a strong 9

Ibid., p.165. Ibid., p. 166. 11 Ibid., p. 373. 10

LAW AND THE PUBLIC GAZE

79

letter to the Hindu Law Committee. His Holiness expressed the view that he is in touch with the pulse of the common man and opined that the Hindu Code Bill is not needed in the country. A letter issued to the Hindu Law Committee from the temple authorities observed: In the course of incessant travel from village to village both in North India and in South India for the last 30 years, His Holiness has been in touch with the feelings and ideas of the Hindu public, high and low, and His Holiness is convinced that the Hindu general public neither demand nor approve of any changes that deviate from the existing Hindu law.12

His Holiness Jagatguru Sri Sankaracharya from Avani Sringagiri Mutt, Mysore also issued a similar statement resenting the Code.13 In a similar vein, Mahamahopadhyaya Pandit Vasudeva Shastri, agent of His Holiness Srimat Jagatguru Madhavacharya, Uttaradhi Math, Sholapur wrote on behalf of His Holiness: As the head of the religious seat of the Hindus, I hereby let you know that the draft Bill of the Hindu Code as framed and published by the Rau Committee is contrary to the tenets of the Hindu religion, and that it is likely to disturb the social order of the Hindus and would prove impracticable. The Dharmapeetha is against it. I make an earnest suggestion that the Bill should not be passed into law.14

Opposition from Religious Organizations It will be fair to note that the religious groups were overwhelmingly against the Hindu Code Bill. The Code was seen as an encroachment of ultra modern elements in society into the religious activities of the Hindus. The Bharat Dharma Mahamandal of Benaras protested against the Code in the strongest words: ‘These measures of antiHindu religion are unwise, unstatesmanlike and unjust and cut into the very root of the sacred religion of the varnashrami sanatani Hindus who are by their inborn nature loyal to the crown.’15 The statement of the Sanatan Dharma Sabha, Moradabad is a pointer to the frustrations and sense of unease with this legislative reform⎯‘the provisions of the proposed Hindu Code are contrary to the principles of Dharma Shastra and … will cause 12

Ibid., p. 414. Ibid., p. 418. 14 Written Evidence Submitted to the Hindu Law Committee, Volume I, p. 86. 15 Ibid., p. 150. 13

80

DEBATING PATRIARCHY

discord and mutual dissentions in families leading to dangerous consequences.’16 The destructive potential of Hindu Code Bill was also highlighted by the Darbhanga District Hindu Sabha. The Sabha declared, ‘The Code is frought with dangerous potentialities to undo the Hindu race.’17 The All India Hindu Mahasabha, Madras put forth the argument that the enactment of the Hindu Code tantamounted to a ‘suicidal folly’ and the entire Hindu race faces the threat of extinction from the Code: With Muslims multiplying through polygamy and through conversions of polygamous Hindus, the population of India will be predominantly Muslim in a couple of generations and the new Hindu Code based on monogamy may get the credit of having converted the whole of India into a vast Pakistan where the surviving Hindus will be treated as strangers in their own fatherland. Suicidal folly cannot go on further.18

Women and the Hindu Code Bill Controversy The Hindu Code Bill, as we have mentioned earlier, had polarized the nation. The controversy had split families, legal associations, social associations and religious groups in their attitude towards the Bill. The Hindu women were also divided into three broad groups in their attitude towards the Hindu Code. The first group comprised ladies from the aristocracy, used to lives of luxury and confinement and even when educated, generally at peace with their purdahnishin existence (i.e. existence behind the veil). They were largely in opposition to the Hindu Code, though there were a few exceptions. The second group of women were generally committed to the religious ways of life, and in most cases affiliated to broader religious groups. Their views reflected the views of broader religious bodies, which were more often than not, against the Hindu Code. The third group were the women’s organizations, who had expanded their network among educated women since the early 20th century and became a vocal force in favour of the proposed Code as discussed in previous chapters. The Report of the Hindu Law Committee observations about the third group is worth noting: 16

Ibid., p. 152. Ibid., p. 176. 18 Written Evidence Submitted to the Hindu Law Committee, Volume II, p. 347. 17

LAW AND THE PUBLIC GAZE

81

The primary aim of most of the alterations in the existing Hindu law proposed in the draft Code being to effect an improvement in the status of women, it will be useful to state the reception it has met with from them. Almost all women’s associations of standing came out strongly in favour of the Code. Women who confidently claimed to represent the views of the vast majority of their educated sisters heartily welcomed the proposals and only wished that they had gone much further.19

As a matter of fact, by the mid-1930s, the British administration had started taking note of the contribution of Indian women in the public sphere. The Simon Commission Report in 1930 endorsed the aspirations of Indian women, including their family law aspirations, as key to India’s progress: The women’s movement in India holds the key to progress…. The resistance to new ideas by uneducated orthodox women is proverbial. Alike for the training and instruction of the young and for the readjustment of the Indian social system, the Indian women, we believe, is pivotal. … India cannot reach the position to which it aspires in the world until its women play their due part as educated citizens.20 The Purdahnishins of Calcutta

The ladies from aristocratic families did not favour the Hindu Code, unless there were compelling reasons, such as the one advanced by Pratulpati Ganguli, belonging to the rich Ganguly family of Calcutta, ‘I would not object to sagotra marriages, if the parties are not sapindas. This is my personal view. It is difficult to find husbands for girls nowadays.’21 While visiting Calcutta, the Hindu Law Committee visited the Natore Palace to hear the views of the Maharani of Natore and other prominent aristocratic ladies of India. The Hindu Law Committee met prominent citizens of Calcutta at Ranjani, 237, Lower Circular Road, the residence of Dwarkanath Mitter. The Natore Palace was 10 minutes drive from the place and the Hindu Law Committee members visited the Natore Palace on March 1, 1945 between 10 A.M. and 10.30 A.M. The meeting was 19

Report of the Hindu Law Committee, 1947, p. 6. Simon Commission Report, I, p. 448. 21 Oral Evidence to the Hindu Law Committee, p. 35. The Hindu Law Committee visited the Natore Palace on March 1,1945 to meet the Maharani of Natore and other ladies from the aristocratic families of Bengal. 20

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attended by, apart from Maharani of Natore, Saradindu Mukherji, Manzura Banerjee, Seza Bahurani (Sudhira Debi) of Dighapatia Raj, Pratulpati Ganguli, D. Mullick, BC Ghosh, Purnendu Tagore and Ratan Ben Jatni (of Gujarat Sevika Sangh). The ladies present in the meeting made a joint statement of objection to the code in every respect. They noted: ‘We are quite happy as we are. For the sake of a few, such radical alterations should not be made (in the Hindu Code).’22 About the imposition of monogamy as a rule, the ladies felt that ‘We do not like monogamy to be enforced by means of a law. Most marriages are now monogamous and no law is necessary. Compulsion of legislation was not desirable in this matter.’23 They were also vehemently opposed to the provision of divorce and also with regard to giving the daughters a share in the father’s property. Both, they felt, would create discord within the family and hence will not be beneficial for society. Though these aristocratic ladies commanded respect in society, the women’s associations of Bengal refused to attach much importance to their assertions, they observed in their sitting with the Hindu Law Committee on February 28, 1945: We are very much in favour of the proposed Code. The opposition comes from a select portion of the aristocracy who have organized themselves for the purpose. These aristocratic ladies have done little social work among women. They rendered little help to the people in their recent troubles. They have little knowledge of the masses.24 Religious Organizations of Women

Several religious organizations of women opposed the Hindu Code. They found the Bill as deviation from the Hindu idealogy. The organizations saw it as a digression from the Hindu way of life. The arguments are discussed in detail in the next section dealing with the evolution of the debate in the Bombay Presidency. Many felt that divorce would ‘utterly ruin the pativrata dharma of women.’25 The Ramnad District Ladies Association of Madras Presidency felt that the proposal to give absolute property to women would ‘place 22

Ibid., p. 35. Ibid. 24 Ibid., p. 36. 25 Writted evidence submitted to the Hindu Law Committee, Volume II, p. 351. 23

LAW AND THE PUBLIC GAZE

83

them under the tender mercies of lawyers and the courts of law.’26 Thus, while the aristocrats and religious women’s groups opposed the Hindu Code Bill, the all India women’s associations strongly supported the Bill, lobbied with the government and created awareness in different parts of the country.

Dwarkanath Mitter’s Note of Dissent to the Hindu Law Committee, 1945 Majority of the members of the Hindu Law Committee, Chairman B.N. Rau, J.R. Gharpure, and T.R. Venkatarama Sastri were of the view that reform through legislation has become the preferred vehicle of social change: It should also be remembered that at the present day there is no means of making changes in the Hindu law except by legislation. Unless Hindu society is to remain static and stagnant, the necessity will arise from time to time for making changes in the Hindu law. It is no longer possible to effect such changes by bringing about a gradual change in customs for British Indian courts do not recognize the validity of any custom unless it is ancient. There is thus no scope for fresh customs to grow. Nor is it possible for the courts to effect any large improvements or changes in the Hindu law to suit the needs of the times, for, when once the highest Court has decided a question (and most matters are now covered by such decisions), the decision becomes a binding precedent for the future, which cannot be set aside except by legislation.27

The Report of the Hindu Law Committee, 1947 added: Orthodox people appreciated the above considerations, and they could only suggest that changes should be initiated by a Pandits’ Parishad and that no amending Bill should be placed before the legislature which had not received the endorsement of such a Parishad. We do not think that this will be feasible in practice, nor do we think it [is] necessary. Every Bill is now published and a reasonable time is given to all the people concerned to put forth their views and objections. Whenever any change is proposed in the Hindu law by a legislative measure, we do not doubt that ample time will be given for its consideration and that all opinions, including those emanating from Pandits and Pandits’ Parishads, will be duly taken into account by the government of the day before they take upon themselves the responsibility for passing the measure into law. ln fact, some Parishads have been held 26 27

Ibid., p. 351. Ibid., p. 37.

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DEBATING PATRIARCHY

to consider the draft Code published by the Committee…. We need hardly say that we have given our most careful consideration to the views and the arguments advanced at these Parishads. Although Pandits generally are not likely to be enthusiastic in the cause of reform, yet, there is nothing to prevent them from holding Parishads whenever they wish and suggesting in advance any changes which, they think, are desirable and the legislature should make in the Hindu law. The present position cannot therefore be considered to be unsatisfactory even from the orthodox point of view.28

The Report of the Hindu Law Committee did recognize that there was considerable opposition to the Bill. However, it also highlighted the fact that there was considerable support for the Bill. It stated: Without minimising the opposition to some of the provisions of the Code, we would point out that the opinions of men like the Right Hon’ble Srinivasa Sastri, the Right Hon’bie Sir Tej Bahadur Sapru, Sir S. Radhakrishnan, Sir P. S. Sivaswami Ayyar and a number of other distinguished persons who cannot be accused of taking extreme or radical views must be heard with respect and attention. Moreover, we cannot afford to ignore either world opinion or India’s own recent declaration of certain fundamental rights. It seems to us that a considerable body of thoughtful opinion favours the codification of the Hindu law and the few changes which we have incorporated in it. In the younger generation, the vast majority favour[s] the Code, and this is a circumstance from which we have derived the utmost encouragement. For, as a young man put it before us, it is the young who will have to live and be governed by the Code. We ourselves have throughout our work entertained a considerable bias in favour of the existing law and have made changes only where we felt them to be absolutely necessary. The changes have been restricted by us within the narrowest possible limits. The Swamiji of the Jai Guru Society, UP, in the course of his evidence said: ‘I am in favour of having one law for all Hindus, but Hindu culture must be maintained by the uniform Code which we make, and the Code must not offend against the spirit of Hindu culture and institutions.’ We may say that is in the above spirit that we have laboured throughout.29

In conclusion, the Committee forwarded a draft Hindu Code to the legislature alongwith their report and expressed their confidence that the ‘revised draft Code appended to this report, with changes as the legislature may make therein, will earn public approval.’30

28

Ibid., pp. 37−8. Ibid., p. 38. 30 Ibid., p. 39. 29

LAW AND THE PUBLIC GAZE

85

Dwarkanath Mitter did not agree with the other members of the Hindu Law Committee and refused to sign the report. Instead, he presented an elaborate note of dissent which was attached to the report. The public attitude of the country left a lasting impression on Mitter, who was also a member of the earlier Hindu Law Committee of 1941 that recommended compilation and legislation of a Hindu Code in the first place. The note of dissent is a detailed account of what influenced Mitter to deviate from his earlier support for the Hindu Code Bill. To articulate his argument against the introduction of a Hindu Code, he summarized the public opinion on various aspects of the Bill in different parts of India. In his note to the Hindu Law Committee on September 27, 1945, Mitter had presented useful information on the evidence collected from the public sphere, the evidence is summarized below in tabular and graphical form. Table 4.1: Public Opinion on the Hindu Code Bill in India, 194531 City

Against Codification (number)

For Codification (number)

Per Cent Supporting Codification

Bombay

33

44

57.14

Calcutta

57

19

25.00

Madras

120

45

27.27

Allahabad

13

3

18.75

Lahore

21

9

30.00

Orissa

33

9

21.43

Assam

10

12

54.55

North Frontier Province

6

6

50.00

Sind

3

2

40.00

Baluchistan

3

2

40.00

Delhi

9

9

50.00

Ajmer

5

3

37.50

(contd) Source: Report of the Hindu Law Committee, 1947, pp. 82–112. The evidence includes both written and oral as sent to the Hindu Law Committee from different parts of the country. 31

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DEBATING PATRIARCHY

Table 4.1

(contd) Against Codification (number)

City

For Codification (number)

Per Cent Supporting Codification

Coorg

4

3

42.86

Patna

32

9

21.95

Total

349

175

33.40

60.00

Per cent

50.00 40.00 30.00 20.00 10.00 Total

Patna

Coorg

Ajmer

Delhi

Baluchistan

Sind

NFP

Assam

Orissa

Lahore

Allahabad

Madras

Calcutta

Bombay

0.00

Cities/Provinces

Figure 4.1: Support for the Hindu Code Bill in Indian Cities

Based on the written evidence and comments of witnesses, Mitter concluded that public opinion was overwhelmingly against the Bill. He observed, ‘From a conspectus of the evidence and written opinions given in the whole of India through which the Committee had to tour it will appear that a vast majority is against codification of Hindu law and it is only a microscopic minority that favour codification.’32 Observing the veracity of the opposition to the Hindu Code Bill, Dwarkanath Mitter further noted, ‘From the examination of witnesses and of the opinions set forth in the written memorandum of all the provinces in India the only conclusion I can come to is that the majority of Hindus incline to the view that the codification of Hindu law is neither possible nor desirable.…’33 Mitter presented the wide range of arguments put forward by a large section of Indian society against the Code: 32 33

Report of the Hindu Law Committee, 1947, p. 113. Ibid., p. 113.

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87

Some have said that Hindu law is revealed law—the law of Smritis and Srutis and the commentators who were also sages of great repute and cannot be altered by the Government of India, others have invoked the proclamation made by Her Majesty Queen Victoria in 1858 that there should be no interference with the personal law of the Hindus as it is based on religion, others have stressed the undesirability of placing the Bill before the Central Legislative Assembly as the Bill has introduced changes of a revolutionary character which has the effect of sweeping away the law laid down by the Smritis and of destroying the Dharma (rules) which are based on the high ideals befitting Hindu culture and character—which ideals have served as inspiration to the world for centuries, others emphasized the undesirability of codification of Hindu law on the ground that it will arrest the growth and development of Hindu law, others have maintained that there is no necessity of codification as people are satisfied with the Hindu law as administered by high courts in India as well as by the Judicial Committee of the Privy Council according to the Srutis. The Smritis and commentaries giving rise to different schools of Hindu law, others have said that having regard to the different schools of Hindu law prevailing in India, it would be impossible to attain uniformity and there is no point in having a Hindu Code unless there is uniformity in the laws prevalent in different provinces of India, others maintain that any change in the fundamentals of Hindu law cannot be determined by the Central legislature which is not of a representative character as there has been no election for a large number of years and the present Central legislature has outgrown its time and that no changes should be made whether in regard to property rights or in the matter of social legislation unless a plebiscite is taken of the whole of Hindu India and there should be no interference with the personal law of the Hindus unless the question of amendment and codification of Hindu law is one of the issues on which elections in future are held and members of the Central legislature is formed of members elected on this issue. Objections have also been raised on the ground that at least one lakh of Hindu soldiers are in fighting services and their views require to be ascertained as the changes proposed affect them seriously. Others maintain that the legislation at the Centre cannot affect agricultural property which is in the Provincial list and there will be one law of inheritance for non-agricultural property and another for agricultural property and there will be great complications in the administration of law if the Provinces do not follow the lines of the Central legislation. Another reason against codification is that this is not the opportune time for codification as people’s minds are engrossed in the war and they have got no time to think of the effect of the changes on their domestic life and properties.34 34

Ibid., p. 113.

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DEBATING PATRIARCHY

He referred to the intensity of the feelings of Hindu population, The tenseness of the feelings against Hindu Code in almost all the provinces is manifested from the reception the committee received from the public…. In Allahabad, the committee was met with black flags in the Allahabad station by 200 students…. In Patna while the Committee was recording evidence in the Sinha Library there was black flag demonstration. In Calcutta, as soon as the Committee arrived there was black flag demonstration by a very large number of Hindu men and women. In Nagpur, the demonstrators against the Code carried black flags and I was besieged in my car…. In Amritsar station there was black flag demonstration and some women with black flags entered our compartment. At the Lahore station, there were similar demonstrations but the police managed to send them away outside the station. It is only fair to state that a number of ladies greeted me with white flags in Lahore….35

About his involvement with the entire project, Mitter wrote in the dissent note, ‘Question may be asked why I along with the other three members of the Hindu Law Committee drafted the Code which affected the fundamental principles of Hindu law. The answer is that when we conceived of the possibility of a uniform Code of Hindu law we little knew that there would be such strong opposition to the reforms suggested.’36 Mitter’s note also gives interesting information on several issues relating to legal rights of women covered by the Hindu Code. Commenting on the general public opinion on monogamy, Mitter observed that based on public opinion in the case of monogamy, he is of the opinion that monogamy as a law should not be introduced.37 The data on public opinion on monogamy showed that only 43.1 per cent supported a law on monogamy as a rule. While the support for monogamy as a rule was strong in Bombay (with 77 per cent) and Madras (about 57 per cent), the rest of the country including Calcutta were not in favour of monogamy (see Table 4.2 and Figure 4.2).

35

Ibid., pp. 115–16. Ibid., p. 116. 37 Ibid., pp. 4–5. 36

89

LAW AND THE PUBLIC GAZE

Table 4.2: Public Opinion on Monogamy as Law, 194538 Against Codification

City

Per Cent For Supporting Codification Codification

Bombay

5

17

77.27

Calcutta

23

6

20.69

Madras

19

25

56.82

7

3

30.00

16

8

33.33

Delhi

6

5

45.45

Patna

9

9

50.00

Nagpur

14

2

12.50

Total

99

75

43.10

Allahabad Lahore

90.00 80.00 70.00 Per cent

60.00 50.00 40.00 30.00 20.00 10.00 0.00

Bombay Calcutta Madras Allahabad Lahore Cities

Delhi

Patna

Nagpur

Total

Figure 4.2: Public Support for Monogamy, 1945

In the case of divorce, Dwarkanath Mitter noted that the country gave a strong verdict, based on the data collected by the Hindu Law Committee. He stated, ‘This provision in the Code has raised the most vehement controversy. But it may be generally stated that except a few social reform associations which represent a very small portion of Hindu India all opinions are against the introduction of 38

Source: Report of the Hindu Law Committee, 1947, pp. 166–75.

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DEBATING PATRIARCHY

divorce in sacramental marriages.’39 Data also revealed that only a third of the oral and written evidence were in favour of divorce, with Bombay and Madras again showing overwhelming support and Calcutta and the northern India opposing it tooth and nail (See Table 4.3 and Figure 4.3). Table 4.3: Public Opinion on Divorce in Sacramental Marriages, 194540 Against Codification

City

Bombay

9

Bengal (including Calcutta)

For Codification

Per Cent Supporting Codification

22

70.97

115

34

22.82

Madras

15

30

66.67

Lahore

16

11

40.74

Delhi

11

1

8.33

Patna

18

0

0.00

7

5

41.67

191

103

35.03

Nagpur Total 80.00 70.00 Per cent

60.00 50.00 40.00 30.00 20.00 10.00 0.00 Bombay Bengal Madras (incl. Calcutta)

Lohore

Delhi

Patna

Nagpur

Total

Cities/Provinces

Figure 4.3: Public Support for Divorce in Sacramental Marriages

Another issue that was debated extensively in the Hindu Code Bill debates relate to the property rights of daughters and widows. The data presented by Mitter, when processed, show that about 39 40

Ibid., p. 181. Ibid., pp. 166–75.

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LAW AND THE PUBLIC GAZE

three fourth of the opinion was against giving property either to daughter or to the widow. Property, and its control over it, in view of public opinion, should be with men. This was the clear verdict of Hindu India (Table and Figure below). In view of the strength of public opinion, Mitter preferred status quo in property rights.41 Table 4.4: Public Opinion on Daughter’s Share in Property, 194542 Against Codification

City

For Codification

Per Cent Supporting Codification

Bombay

11

9

45.00

Calcutta

130

34

20.73

Madras

14

4

22.22

8

1

11.11

Lahore

20

7

25.93

Assam

13

6

31.58

Patna

16

0

0.00

Nagpur

14

4

22.22

226

65

22.34

Allahabad

Total

50.00 45.00 40.00 Per cent

35.00 30.00 25.00 20.00 15.00 10.00 5.00 0.00

Bombay Calcutta Madras Allahabad Lahore

Assam

Patna

Nagpur

Total

Cities/Provinces

Figure 4.4: Public Opinion on Daughter’s Right to Property, 1945

41 42

Ibid., p. 151. Ibid., pp. 118–37.

92

DEBATING PATRIARCHY

Table 4.5: Public Opinion on Absolute Estate to Widows, 194543 Against Codification

City

Bombay

For Codification

Per Cent Supporting Codification

9

10

52.63

Bengal (including Calcutta)

47

7

12.96

Madras

14

13

48.15

3

1

25.00

Allahabad Lahore

4

2

33.33

Delhi

5

3

37.50

Patna

15

3

16.67

Total

97

39

28.68

The public support of retaining joint family system and the co-parcenary rights under Mitakshara law was not very significant, with 47 per cent in favour of removing co-parcenary rights to joint family property. This percentage is due to the fact that in this case, Bengal, where Dayabhaga system prevailed, was not in favour of Mitakshara co-parcenary. Figure 4.5 below presents the statistical evidence. 60.00

Per cent

50.00 40.00 30.00 20.00 10.00 0.00

Bombay

Bengal Madras Allahabad Lahore (incl. Cal)

Delhi

Patna

Total

Cities/Provinces

Figure 4.5: Public Opinion on Absolute Property Rights to Widows

43

Ibid., pp.140–51.

LAW AND THE PUBLIC GAZE

93

Table 4.6: Public Opinion on Abolition of Mitakshara Co-Parcenary Rights, 194544 Against Codification

City

For Codification

Per Cent Supporting Codification

Bombay

3

3

50.00

Bengal (including Calcutta)

2

7

77.78

Madras

3

9

75.00

Allahabad

3

1

25.00

Lahore

16

3

15.79

Patna

5

7

58.33

Nagpur

6

4

40.00

38

34

47.22

Total

The evidence presented was summed up in the comments of Dwarkanath Mitter, who stated, From the examination of witnesses and of the opinion set forth in the written memorandum of all the provinces in India, the only conclusion I can come to is that the majority of the Hindus incline to the view that the codification of Hindu Law is neither possible nor desirable. Most of the Hindu rules are now well settled and well understood, and a code is not, therefore, called for at all.45

The Hindu Code Bill Debate in Bombay Presidency: A Closer Look Evidence to the Hindu Law (Rau) Committee in Bombay and Poona: January and February, 1945

The evidence presented in the previous section depicted the polarization of society over the Hindu Code Bill. All over India the public opinion was overwhelmingly against the Bill. The conservatives seemed to be scoring over the liberals everywhere except in the Bombay Presidency. A closer look at the debate in 44 45

Ibid., pp. 152–60. Ibid., p. 113.

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Bombay and Poona will be useful to understand the coexistence of contrasting view points in society. Indeed, the oral evidence in Bombay and Poona tendered before the Hindu Law Committee, 1945 acts as a useful source to understand the social perception of gender roles. During January 29, 1945 and February 2, 1945, the Committee met about forty two different social groups and personalities in Bombay and Poona. Among the personalities were S.Y. Abhayankar, Advocate, Bombay High Court; Harshadbhai Divatia, Judge, Bombay High Court; P.V. Kane; Advocate Rao Bahadur P.C. Dewanjee, and Sir Chimanbhai Setalvad. Among the representatives of the institutions consulted by the Hindu Law Committee were: Bhagini Samaj, Bombay, represented by Sarojini Mehta, Bombay Presidency Women’s Council represented by Mrs Kamala Dongerkerry and Sulochana Mehta, Representative Committee of Hindu Ladies represented by Dharamsi Thakkar and others, Bhatia Stri Mandal, Seva Sadan Society and Arya Mahila Samaj. Other social organizations included the Bombay Bar Association, Bombay Chhatra Sanskrit Sangh, Dharma Nirnaya Mandal, and the Bombay Incorporated Law Society. Several other religious organizations were also consulted. Bombay presented an extremely balanced debate on the Hindu Code Bill, when the Hindu Law Committee came to gauge the public mood in Bombay. In fact, the decision by the Hindu Law Committee to start their study from Bombay and Poona reflects the importance they assigned to this region. The opposition against the codification process in general came from many social and religious organizations. This was apparent from the oral evidence presented by individuals and groups. Ramji Panday of Bombay Sanskrit Chhatra Sangha said that the legislature should not interfere with their religion which came from vedas and smritis. Mr Munshi, Advocate, Bombay High Court, said, ‘With regard to the possibility of codification, I have my doubts. The comprehensive legislation you introduce in violation of Smriti law instead of consolidating will disintegrate Hindu community.’46 Jankibai Joshi, President, All India Hindu Women’s Conference stated that there should be no change of the personal law of the Hindus. Maharashtra Brahmin Sabha, Poona, observed that consideration of the Hindu Code should be postponed till after the cessation of war and should be taken into consideration in the legislature after 46

Ibid., p. 83.

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fresh elections are held. It also stated that uniformity in Hindu law was neither necessary nor desirable given the diversity of customs in India. Secretary, Sree Sankar Math, Matunga, Bombay, and the Sanatan Vedic Dharma Sabha, Ahmedabad considered that the draft Hindu Code was so revolutionary and ruinous that it had created storms of protest, resentment and feeling of rank injustice all over India. In the opinion of the president of Lingayat Virashaiva Samaja Sudharana Sangha, Hubli, the Code was objectionable both from the religious and economic points of view. Apart from disrupting the religious fabric of society, the Code also disrupted the economy by giving women more property rights leading to the fragmentation of property.47 Y.C. Gune, President, Brahmin Sabha; Karweer, the AllIndia Audichya Brahma Samaj; Secretary, Bar Association, Belgaum also strongly protested the codification as it was completely against public opinion.48 Yajushakheeya Madhyand Maharaetriya brahmin Sabha, Poona; Vidwant Sabha, Nadiad; Bombay Provincial Dharma Sangha; Madhav Bag; His Holiness Jagadguru Sri Sankaracharya Maharaj, Poona strongly protested against the Hindu Code. The Hindu communities of Ahmedabad and Hirabad and the Anti Hindu Code Conference, Bombay expressed their opposition to the Hindu Code Bill. Pandit Vinayaka Sakharama Sastri Tilloo and others of Holkar College, Indore, Rao Bahadur Sardar M.V. Kibe, Indore, Bar Association, Lakhtar and Bar Association, Khargaon also objected to the introduction of the Hindu Code. In the Bombay region, there was considerable support for the Code, a major part of which came from women’s organizations. For instance, the Bhagini Samaj consisting of 1,200 members, Bhatia Stri Mandal consisting of 500 members, Seva Sadan Society, and the Arya Mahila Samaj supported the codification of Hindu law. The Hindu Code also received support from Gujarati Reforms Association, the Representative Committee of Hindu Ladies, Malabar Hill and the Bombay Presidency Women’s Council, Town Hall, Bombay. There was support from a section of lawyers in the Bombay High Court. Justice Divatia of Bombay, on behalf of The Hindu Law Reform and Research Association supported the codification 47 48

Ibid., p. 83. Ibid.

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of Hindu law, looking upon it as a progressive step. He was also supported by Sir Chimanlal Sitalvad, M.L. Sitalvad, Bar-at-law, Tannubhai Solicitor, Bombay High Court, and P.C. Dewanji.49 Rao Bahadur P.C. Dewanji, retired Judge of the Bombay High Court, felt that separate codification for each province was the first desirable step towards complete codification. The Bombay Bar Association also supported the process of codification. The recommendations of the Sholapur Bar Association revealed the differences within the legal fraternity on the issue. Their support for codification was based on a narrow majority, the influential minority being of opinion that the codification was unnecessary and undesirable, at the present stage as (a) the various customs, notions, habit of thought and living prevalent in various localities and communities should not be ruthlessly sacrificed to the doubtful advantages of uniformity, (b) judicial decisions and precedents had to a large extent given certainty to the existing law and (c) legislation should keep pace with and not outstrip progress in the community, as would be the case if the Draft Hindu Code were made a statute.50 Bombay Incorporated Law Society and Bombay Advocates Association also supported the Hindu Code. Several social reform associations came out in support of the Hindu Code. The All India Veerashaiva Law Reform Committee, Devangeri, All India Virashaiva Mahasabha, Sholapur, Bombay Presidency Social Reform Association, Sanatan Vedic Dharma Sabha, Surat held a progressive view about the Hindu Code Bill. The Bill also received support from Jain Association of India and Bombay Prarthana Samaj, indicating support from reformist segments in the society. Oral Evidence to the Hindu Law Committee, Bombay, 1945 The oral evidence presented before the Hindu Law Committee in Bombay Presidency brought out some crucial insights into the gender consciousness of society. Three distinct aspects that were debated intensively in the discourse over the Hindu Code Bill were monogamy, divorce and daughter’s share in inheritance. These issues reflected at the same time deeply embedded patriarchal beliefs and values as also the quest for equality and rational behaviour by the liberal segments of the society. 49 50

Ibid., pp. 82−3. Ibid.

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Debate on Monogamy in Bombay Presidency

The proposal for introduction of monogamy by the Hindu Code Bill came to be extensively debated and contested. The women’s organizations wholeheartedly supported the introduction of monogamy, which they felt was key to the dignity of women in society. Miss Engineer, Secretary, Seva Sadan Society, Bombay,51 narrating her experience with deserted widows, felt that desertion was highly associated with polygamy and detrimental to the interests of the poor. Leelabai Phadke and B.N.Gokhale, giving evidence on behalf of the Arya Mahila Samaj, Bombay, felt that, ‘Monogamy should be the strict rule without any exception.’52 In case of having no children, they felt that adoption may be resorted to, to solve the dilemma. Rani Laxmibai Rajwade of Poona also wholeheartedly expressed her support for the imposition of monogamy.53 Similar views were expressed by Miss Ranade and Miss Tarabai of Maharashtra Mahila Mandal of Poona and Yaminitai Kirloskar representing All India Maharashtra Mahila Mandal.54 However, there were voices within the women’s organizations that felt a space for exceptions to monogamy. Babi Ben Mulji Duggal of the Bhatia Stri Mandal observed that some exceptions to monogamy could be permitted in case where the first wife has no children. Dharaamsi Thakkar, Babi Ben Mulji Duggal, Maniben Kara and Menabai Jamnadas appearing on behalf of the Representative Committee of Hindu Ladies, observed that polygamy could exist with the rider that separate maintenance provisions may be made for the superseded wife.55 The Dharma Nirnaya Mandal, represented by Mahamahopadhyaya P.V. Kane felt that monogamy should be imposed with exception for economic grounds; a man may be permitted to marry if that relieved economic hardship to the family in the form of additional hands.56 Similarly, the Maharashtra Brahmana Sabha, Poona represented by L.K. Barve, was of the view that a second marriage should be allowed 51

Evidence of Miss Engineer, M.A, LL.B., J.P. (Seva Sadan Society, Bombay) on February 2, 1945, Oral Evidence to the Hindu Law Committee, 1947, Government of India, p. 6. 52 Ibid. 53 Ibid., p. 7. 54 Ibid., p. 8. 55 Ibid., p. 4. 56 Ibid., p. 3.

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in case of twelve years of barrenness or if the wife was seriously ill.57 Even the representatives from within the judicial system, in some cases, favoured polygamy. B.H. Joshi, advocate from Poona observed, ‘A man should be allowed to have at least two wives. Even when Yajnavalka prohibits a second wife, the legal right should remain. But for women, a different rule should obtain. This is my personal view.’58 The Divorce Discourse

The issue of incorporating divorce provisions under the umbrella of the Hindu Code Bill evoked strong and polarised reactions. The liberal and progressive viewpoint was forcefully presented by the women’s movement. The National Council of Women for India favoured divorce provisions with alimony to the divorced wife. Sarla Bai Naik, appearing on behalf of the Indian Women’s Council, Poona felt that the provision of seven years married life as a clause for divorce was too long.59 The Maharashtra Mahila Mandal, Poona also supported the inclusion of divorce in the Code.60 The All India Maharashtra Mahila Mandal, Poona wanted that the grounds for divorce be broadened by adding cruelty and temperamental incompatibility as grounds for divorce.61 Iravati Karve suggested to the Hindu Law Committee that the minimum marriage period for divorce at seven years was too harsh for women. She suggested the introduction of special matrimonial courts for speedy disposal of divorce cases.62 Rani Laxmibai Rajwade in her evidence stressed the need for simpler procedure, special matrimonial courts and lower publicity in divorce cases.63 The oral evidence also reveals that strong objections were evoked towards the incorporation of divorce clauses in the Hindu Code Bill. Manubhai C. Pandya of Varnashram Swarajya Sangha, Bombay strongly disapproved of divorce as it was against the text of Manu.64 Chapekar of Dharma Nirnaya Mandal was against any 57

Ibid., p. 13. Ibid., p. 7. The evidence was given to the Hindu Law Committee, Poona, February 3, 1945. 59 Ibid., p.11. 60 Ibid., p. 9. 61 Ibid., p. 10. 62 Ibid., p. 7. 63 Ibid., p. 8. 64 Ibid., p. 3. The evidence was tendered on January 30, 1945. 58

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divorce provision after fifteen years of married life. L.K. Barve of the Maharashtra Brahmin Sabha, Poona and L.K. Safai of Sri Shukla Maharashtra Brahmin Sabha, Poona were against incorporation of divorce in the Hindu Code Bill, as the provision went against the basic tenets of Hindu religion.65 Voices of resentment were raised by Joshi and Davre, advocates of Poona in their oral evidence. The essence of their argument was that such a step would not be in accordance with Hindu religion.66 The Poona Bar Association suggested the introduction of conciliation boards and special matrimonial courts. They felt that specialised courts should put their efforts first towards reconciliation of disputes, failing which, they should ensure steady disposal of cases.67 Daughter’s Share in Inheritance

Yet another issue to get attention was the rights of daughter vis-à-vis the widow in the case of inheritance. This mirrored the concerns expressed by the vocal segments of the society to the Commission and in other forms of media. The main thrust of the debate was the excessive rights given to the widow vis-àvis the daughter. The social wrath at this perceived distortion was evident in the earlier Report of the Hindu Law Committee, 1941. The issue resurfaced again, in the oral evidence tendered to the Hindu Law Committee. Like other issues, opinions were divided. M.C. Pandya of Varnashram Swarajya Sangh was against giving absolute estate to women in the first place.68 Many other orthodox organizations, supporting the Mitakshara law in inheritance were of the view that women can only own stridhana, and enjoy only a limited estate (right to use but not own) in family property. Furthermore, the dominant sentiment in Bombay, influenced to some extent by its emergent business class, was that transfer of a share of property to the daughter meant entry of the son-in-law in the family business and potential disruptions in the family business. In contrast, the women’s organizations were mostly in favour of the daughter getting a share in her father’s property. 65

Ibid., p. 13. Ibid., p. 7. 67 Ibid., p. 8. 68 Ibid., p. 3. 66

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The Hindu Code Bill and the Bombay Press The growing concern about women’s issues in society influenced the print media where discussions on gender-related issues covered a wide range of subjects. Though issues on women were generally relegated to the inside pages, a large number of women’s issues appeared in the Bombay newspapers of that time. Issues on women which were reported regularly in the press were—women’s education, growing workforce participation, sensational stories of non-conforming acts by women, reports on the organized women’s movement in society, activities and statements of women leaders of that time and finally, the legal issues relating to women. A brief background on the social perception of women will help us to understand the debate over the Hindu Code Bill in the Bombay press. Press reports on the education of women reflected the firm belief about the secondary role of women in society. Women’s education was considered necessary for their efficient functioning within the households as wives and mothers. An editorial in The Times of India on March 12, 1941 observed, ‘The education of the girl is the education of the mother. The school education of each additional girl contributes more towards the future than the school education of an additional boy. The main cause of educational stagnation in India is the lack of literate mothers.’69 On different occasions, social and political leaders strongly ascribed themselves to this view. A report on girls’ education which appeared in The Times of India on February 21, 1942 we find the Bombay Women’s Council discussed that the ‘slow progress of the country is due to the lack of women’s education, women needs to be prepared for life as wife and mother.70 The Times of India, July 31, 1944 also reported the Bombay Governor’s advise in the report, Women’s Role in Education in India—Bombay Governor’s Advise, as follows, ‘The woman as a wife and mother is the centre of the family and the family is the most important unit in the broad structure of the society. If Indian wives and mothers are themselves educated persons, they must see the necessity of the education of their children.’71 69

‘Women’s Education’, Editorial, The Times of India, March 12, 1941, p. 6. ‘Girls Education: Reforms Discussed by Women’s Council’, The Times of India, February 21, 1942. 71 ‘Women’s Role in Education in India: Bombay Governor’s Advise’, The Times of India, July 31, 1944, p. 4. 70

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There was also a feeling that the higher education of girls was affecting the interests of the family. First, it was felt that married men were getting attracted to the charms of the educated ladies at the peril of their first marriage. According to a report in The Times of India on August 23, 1941, Annapurna Deshmukh, member of Legislative Assembly, criticized the growing tendency among educated unmarried girls to marry already married men and thus deprive one of their sisters of a happy married life. No comment can be found on a married man getting involved with these educated charming ladies. An article ‘Women and Education’ in the Free Press Journal dated February 4, 1946 described the prevailing social perception of educated women in a telling manner, ‘Unaware of culture and the traditions of her country, she is incapable of becoming a good housewife. She is just a social butterfly, selfish, self-centred with no desire to help the society.’72 The concept of co-education was not favoured by many sections of the society. An article, ‘Views on Co-Education’ which appeared in The Times of India on December 28, 1944 stated that the girls had more freedom in girl’s colleges than in a co-educational system.73 The educational backwardness of the Muslims was also a subject of discussion during this period. From a report in The Times of India, ‘Muslim Women Must Wake Up’ on February 13, 1946, we find that Sarojini Naidu in a speech delivered in Calcutta wanted spread of secular education among Muslim girls.74 The entry of women in the organized workforce was an inevitable outcome of the growing literacy of women. In reaction, the maledominated society expressed their concern that women would displace male members from getting a job and thereby adversely affect the family of the unemployed male members. Whenever a woman was promoted to the job of an officer, a very rare occasion but nevertheless not altogether absent, the newspapers highlighted this by publishing the news as well as a brief resume of the person. The overall coverage of the Press reflected the prevalent social discomfort towards liberated women within the patriarchal fold.75 72

‘Women and Education’, Free Press Journal, February 4, 1946. ‘Views on Co-Education’, The Times of India, December 28, 1944, p. 6. 74 ‘Muslim Women Must Wake Up’, The Times of India, February 13, 1946, p. 9. 75 Some of the articles that appeared in the Bombay press were ‘Women’s Role in Civil Defence: More Enrolments’, The Times of India, February 15, 1942, p. 4; ‘Women Textile Workers: More Maternity Benefits’, The Times of India, November 73

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The press reports were overwhelmingly influenced by reportage and analysis of legal issues concerning women. The ruling by the Federal Court, referred in detail in Chapter 4, caused a stir in society, initiating public debate over women’s property rights. Women’s organizations urged the government to make necessary amendments to the legislations in the provinces. An editorial in The Times of India which appeared on June 18, 1941 cautioned the attempts at piecemeal legislation, ‘there is no doubt that Hindu Law is in a state of confusion and piecemeal tinkering with any law is not desirable.’76 In June 1941, the Rau Committee submitted its report to the government recommending, among other things, the need for a complete overhaul of the Hindu Code. The report aroused the Indian intelligentsia and press reports reflected the apprehensions of a secular intelligentsia in bringing about legislative changes in the presence of a strong, patriarchal orthodoxy and also provided alternate views regarding the need for modification of the legal system by a variety of rationale that included the question of gender equality among other issues. A report of March 7, 1941 discussed Deshmukh’s Bill in detail to argue that legislative reforms can contribute to well being of society through unification and standardization of the legal framework.77 A similar report on a lower court decree on April 11, 1941, on Hindu Women’s Property on April 16, 1941 was the starting point of a vibrant debate on legal issues in the Bombay press.78 On August 5, 1941, a report in The Times of India appeared which stated that the attempt to codify the succession rules were still in progress and the Hindu Law Committee had asked for the opinion of renowned judges on Mitakshara law. The entrenchment of deep-seated patriarchal bias was revealed when only one out of twenty five members wholeheartedly supported the codification.79 11, 1942, p. 5; ‘Women Clerks in Madras Secretariat’, The Bombay Chronicle, May 5, 1943, p. 3. 76 ‘Hindu Law’, Editorial, The Times of India, June 18, 1941, p. 6. 77 ‘Dr. Deshmukh’s Bill’, The Times of India, March 7, 1941, p. 8. 78 ‘Hindu Widow’s Maintenance: Lower Court’s Decree Set Aside’, The Times of India, April 11, 1941, p. 9; ‘Divorce by Caste Customs: Legality upheld in Appeal’, The Times of India, April 11, 1941, p. 11; ‘Hindu Women’s Property Act: Legality Questioned’, The Times of India, April 16, 1941, p. 7. 79 ‘Codification of Hindu Laws: Succession Rules’, The Times of India, August

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Press Coverage of Women’s Organizations

The debate in the press on the codification of the Hindu bill started with an unprecedented vigour in January 1944. An editorial on ‘Hindu Law’ published in The Times of India on August 9, 1944 welcomed this move by the Committee to seek popular opinion (i.e., of individuals and organizations) throughout the country and suggested, ‘Codification of Hindu Law is not a matter merely for lawyers. It deeply touches the social and domestic life of a great community.’80 The Women’s organizations, under the leadership of AIWC were the strongest supporters of the Hindu Code Bill. Women leaders of the time left a lasting impression in the minds of the public. The women’s conferences organized by AIWC and other women’s associations were reported in the press.81 The conferences in Bombay were given due importance, owing to the leading role of Bombay in the women’s movement.82 The opinions of women leaders were given detailed reportage.83 These press reports also bear testimony to the diverse concerns of women’s organizations of the time.84 In a meeting organized by the National Council for Women 5, 1941, p. 6. 80 ‘Hindu Law’, Editorial, The Times of India, August 9, 1944, p. 4. 81 ‘Women’s Conference Ends’, The Times of India, January 1, 1941, p. 8. Also, ‘Women’s Association’, The Times of India, March 28, 1941, p. 9; ‘Women’s Conference’, The Times of India, August 23, 1941, p. 7; ‘Indian Women’s Conference’, The Times of India, January 3, 1942, p. 9; ‘They Quit All India Women’s Conference’, The Bombay Chronicle, December 30, 1942, p. 7; ‘Women’s Conference Condemns Government Assault on Civil Liberties’, Free Press Journal, April 11, 1944; ‘Women Oppose Hindu Code Bill’, Free Press Journal, January 11, 1945, p. 3; ‘Legal Equality between Sexes: Hindu Women’s Demand’, The Times of India, February 13, 1945, p. 7; and Smt Kamaladevi Chattopadhyay, ‘All India Women’s Conference’, Free Press Journal, January 1, 1946, p. 4. 82 ‘Bombay Women’s Council’, The Times of India, February 4, 1941, p. 3. 83 ‘A Department of Social Service: Lady Rama Rau’s Suggestions’, The Times of India, February 13, 1941, p. 4. Also, ‘Thorough Revision of Hindu Law Demanded: Bombay Women’s Conference’, Report, The Times of India, February 14, 1941, p.11. 84 Several articles in newspapers reflected the women’s associations concerns for social justice, women’s rights and benefits and in areas concerning gender inequality. Some of the reports were ‘Training School for Nurses: Bombay Women’s Plea’, The Times of India, February 17, 1941, p. 5; ‘Women’s Role in Rural Upliftment: Maharani of Gwalior’s Appeal’, The Times of India, February 19, 1941, p. 4; ‘The Facilities for Women: Lady Lumley’s Plea’, The Times of India, March 6, 1941, p. 3; ‘Maternity Welfare in Rural Areas: Plea at Calcutta Conference’, The Times of India, April 11, 1941, p. 5; ‘Maternity and Child Welfare’, The Times of India, April 28,

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in Bombay on August 11, 1944, Justice H.V. Divatia observed that the Hindu Code Bill was progressive from the point of view of Indian women.85 In October, 1944, Bombay Presidency Women’s Council organized a meeting on the Hindu Code Bill where Motilal Setalvad supported the provisions of the Bill.86 In November 1944, the Gujarati Hindu Stree Mandal under the presidentship of Lady Taraben Mehta organized a meeting to discuss the provisions of the Hindu Code.87 In January 1945, Sarojini Naidu took an egalitarian approach by declaring that humanity was one and indivisible.88 Recognising the strong impact created by women’s organization, an editorial in The Times of India of March 7, 1950 stated, That a conference of as many as 41 women’s organizations should have lent wholehearted support to the principles of the Hindu Code Bill is not a matter of surprise. For, it may be said that the demand for radical reform in the entire fabric of Hindu law is largely, if not entirely, due to the phenomenal awakening of Hindu women to their social rights and wrongs during the last 30 years.89

Women opinion leaders at that time included Lady Rama Rau, who gave a number of lectures in Bombay in 1941 to articulate views as expressed in the Allahabad session of the AIWC in 1941, p. 4; ‘Plea to Abolish Polygamy: Women’s Conference Proposal’, The Times of India, May 31, 1941, p. 8; ‘Sisters of India for Service: Dr. Reddy’s plea at Women’s Varsity’, The Times of India, June 21, 1941, p. 7; ‘Girls Education: Reforms Discussed by Women’s Council’, The Times of India, February 21, 1942, p. 4; ‘Women Textile Workers: More Maternity Benefits’, The Times of India, November 11, 1942, p. 5; ‘Madras Women Demand National Government’, The Bombay Chronicle, November 30, 1942, p. 3; ‘Inter-communal Marriages: Plea at Women’s Conference’, The Times of India, February 23, 1944, p. 4; ‘Women’s Conference Condemns Government Assault on Civil Liberties’, Free Press Journal, April 11, 1944, p. 5; and ‘Bettering Women’s Lot in Society: Bombay Women’s Conference’, The Times of India, February 22, 1945, p. 7. 85 ‘Hindu Law Code: Justice Divatia on the Proposed Changes’, The Times of India, September 20, 1944, p. 5. 86 ‘Women’s Rights on Inheritance: Motilal Setalvad Explains’, The Bombay Chronicle, October 10, 1944, p. 3. Also in ‘Hindu Law Reform’, The Times of India, October 10, 1944, p. 4 87 ‘Women’s Meeting regarding Hindu Code’, The Bombay Chronicle, November 3, 1944, p. 3. 88 ‘Draft Hindu Code: Mrs. Sarojini Naidu Calls for Careful Study’, The Times of India, January 2, 1945, p. 3. 89 ‘Hindu Code Bill’, Editorial, The Times of India, Bombay, March 7, 1950, p. 4.

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December, 1940; Margaret Cousins, Rameshwari Nehru, President, AIWC, Sarojini Naidu, Kamaladevi Chattopadhyay, Rajkumari Amrit Kaur, Vijay Laxmi Pandit, and the president of the Indian Women’s Council, R.B. Billimoria and ladies from royal families also came to the limelight. The speeches of Beghum Shah Nawaz and Maharani of Gwalior were quoted in part in press reports. These leading women were able to create an independent identity of their own, although the creation of such identity was closely intertwined with their association with prominent women’s organizations. Opposition to the Hindu Code in the Press

Several reports of opposition to the Hindu Code Bill can be traced through the press coverage. While most general reports of the Hindu Code would normally refer to the wrath of orthodox sections, some exclusive reportage of the orthodox segments are also available.90 Opposition to the Hindu Code was reaching a feverish pitch by 1945. Discontent started growing after the Hindu Code was submitted for eliciting public opinion and there were open demonstrations and a public outcry against the Bill. The rhetoric of the time was full of Hindu sentimentality and the fear that the sanctity of the Hindu law was under threat. While enlightened lawyers like H. Divatia and M. Setalvad supported the Code, it was strongly resisted by many social organizations. Under the auspices of the Bombay Provincial Varnashram Swaraj Sangh at Bombay an anti HinduCode conference was held which strongly opposed the concept of the Hindu Code Bill as it completely ignored the fundamental principles of the Hindu social order.91 The Sankaracharya of Puri, the Sankaracharya of Kanchi both strongly opposed the Hindu Code Bill. In a strongly worded statement, His Holiness Jagadguru Sankaracharya of Puri Govardhana Matha said, The very outlook of those who have sponsored such proposals is revolting in as much as it placed the very changing views of individuals constituting a heterogeneous, secular legislative on a higher pedestal than what we 90 ‘Hindu Women’s Protest against the New Bill’, The Bombay Chronicle, June 28, 1943, p. 1; ‘Draft Hindu Code Bill: Bengal Landholders Opposition’, The Times of India, January 5, 1945, p. 7; ‘Reform of Hindu Law: Arguments of Women and Sanatanists’, The Times of India, January 31, 1945, p. 9. 91 ‘Anti Hindu Code Conference’, The Times of India, January 8, 1945, p. 7.

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sincerely believe in the word of God. It amounts to an attempt to compel believers in the Hindu scriptures, by means of coercive secular legislation, to abandon their deeply cherished faith and practices.92

He added, We would advise all those concerned in saving India from the disastrous consequences of such legislation, not to waste their time and energy on a detailed fight against individual items but concentrate on a frontal attack against the very basic conception underlying the proposed legislation to the effect that individuals can be unallowed to discuss the rightness or otherwise of the divine law.93

By the end of January 1945, the Rau Committee visited Bombay to discuss the draft Hindu Code Bill with several personalities and organizations in the city. The discussions were reported daily with detailed comments on discussions of the Rau Committee with individual persons. Some individuals like Judge H. Divatia, B.N. Gokhle and some organizations like the Bombay Presidency Social Reform Association spoke in favour of the need to evolve a uniform code of Hindu laws. Similarly, press reports of opposition from the Sanatanists who barged into the room, and spoke in Sanskrit against such codification were also published in leading dailies. The Sanatanists formally presented an argument in which they objected to divorce, supported polygamy and remained strongly loyal to the religious dictum. An All India Anti Hindu Code Committee was formed with a view to educating the intelligentsia about the implications and grave consequences of the Hindu Code Bill. With a view to garner public support against the Bill, the Committee published several pamphlets. Several other organizations, including Hindu Students Federation, Sanatan Dharma Sabha, Arya Samaj, Jain Sabha, Khatri Sabha, and Punjab Mahabir Dal condemned the Hindu Code Bill and organized public meetings to gather public opinion.94 The All India Hindu Code Bill Virodha Samiti published a book, Hindu Code Bill: Praman Ki Kasauti Par in Hindi by Swami Karpatriji Maharaj, refuting the government propaganda about the Bill and 92

Ibid., p. 7. Ibid. 94 ‘Cutting the Root of Hindu Society: Law Reforms Denounced’, Free Press Journal, January 2, 1944, p. 2. 93

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expressed that Hindu Code Bill was diametrically opposed to the ideology of the Sanatan Dharma.95 On the whole, the press reports are reflective of a changing perception of women’s role in society. A series of reports analysed the tremendous progress made by women and their new status in society. The contribution of women in the nationalist movement was also recognized. In legal debate, women’s viewpoint and the orthodox criticism both were very strong. The issues for and against the Hindu Code made the debate over the Hindu Code Bill extremely lively and pulsating.96

CHAMPIONING THE HINDU CODE The Dharma Nirnaya Mandal, Lonavala The Dharma Nirnaya Mandal was formed in 1936 by a segment of the liberal mined male social reformers of Maharashtra in Lonavala, Poona. Pandit Kakoje Shastri, the Secretary of the Dharma Nirnaya Mandal was the leading force and the key figure behind the effort to elicit support for the Hindu Code. His efforts were supported in various capacities by Mahamahopadhyaya P.V. Kane and Professor T.K. Tope of Bombay, G.V. Ketkar and P.G. Sahasrabuddhe of Poona, Justice Bhavani Shankar Niyogi and K.L. Daftary of Nagpur among others. The Mandal was a non-political body which operated at the grassroot level, and had a strong network in the smaller towns of Maharashtra. The organization was in favour of reform of the Hindu Code. In order to bring about social and religious reforms, it passed a number of resolutions since its inception. In 1936, it demanded the abolition of Untouchability. In 1938, it passed a resolution in Lonavala demanding the legalization of sagotra marriage. In the same 95

‘Hindu Code Bill: Praman Ki Kasauti Par’, The Times of India, March 7, 1950,

p. 6. 96 ‘Status of Indian Women’, The Times of India, January 23, 1941, p. 13; ‘Hindu Women’s Rights’, The Times of India, April 5, 1941; ‘Hindu Social Reform’, Editorial, The Times of India, April 18, 1941, p. 6; ‘Literacy Among Women: Spectacular Increase in Past Decade’, The Times of India, April 29, 1941, p. 5; ‘Hindu Women’s Rights’, The Times of India, June 27, 1941, p. 3; ‘Women’s New Status’, The Times of India, April 12, 1944, p. 5; ‘Women’s Education and India’s Literacy’, The Times of India, October 26, 1945, p. 3; ‘Women’s Education’, The Times of India, October 27, 1945, p. 6; and ‘Women’s Status in New Order’, The Times of India, January 4, 1946, p. 3.

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year, the Mandal demanded prohibition of bigamous marriages and also stressed the need for legal provisions relating to divorce under the Hindu law. In 1939, the Mandal demanded caste equality in its annual congregation in Badlapur and at Wardha in the year 1941 pressed for the conferment of equal rights to women. In 1944 at Akola, the Mandal stressed the need for the legalization of inter-caste marriages. The contribution of the Dharma Nirnaya Mandal to the debate over the Hindu Code was noteworthy. In 1944 at Akola, the Dharma Nirnaya Mandal emphasized the need for the codification of Hindu law. Between 1949 and 1950, the Dharma Nirnaya Mandal became very active in their campaign in favour of the Hindu Code Bill. In this period, members from the Dharma Nirnaya Mandal visited twenty eight places in Maharashtra, including Poona, Bombay, Jalgaon, Malegaon, Ahmednagar, Dhond, Pandharpur, Amalner, Yaval, Chalisgaon, Dhulia, Shirpur, Sholapur, Lonavala, Akola, Amaraoti, Yeotmal, Wun, Chanda, Nagpur, Satara, Karad, Kirloskarwadi, Sangli, Miraj, Ugarkhurd, Kolhapur, and Thane. On an average, three meetings were held in a place. One was a general meeting, but besides that special meetings were also held for women and also for groups of local opinion makers. Besides the distribution of pamphlets and brochures at these places, prominent newspaper editors in Poona, Bombay and Nagpur were personally approached and persuaded to ensure wider publicity. The Dharma Nirnaya Mandal was struck by the lack of awareness of the proposed Hindu Code Bill in most of the places. A report prepared by the this organization stated, On enquiries made at these places, it was found that excepting four places, viz., Poona, Bombay, Akola and Nagpur, not a single meeting had been arranged to support the Bill, until our arrival there. At Bombay and Poona, though meetings were held in favour of the Bill, we were the first to discuss the important features of the Bill serially, with a special appeal to the intelligentsia.97

The Dharma Nirnaya Mandal also noted that the liberal perspective had to deal with a strong anti-Hindu Code Bill propaganda. The anti-Hindu Code Bill propaganda was found to rest on two major themes, both relating to gender relations within the family and involving property rights. A report of the Mandal 97 A Report on the Propaganda Work Done in Support of the Hindu Code Bill, Dharma Nirnaya Mandal, Lonavala, 1950, Section 1, p. 1.

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stressed: ‘It was further noticed that two provisions of the Bill, viz. (a) Daughter’s share along with the sons, in father’s estate, and (b) Abolition of the limitations on Widow’s estate. were bitterly contested even by the so called persons of advanced views.’98 It was also noted by the Mandal that although the debate assumed political colour by identifying the Congress Party as supporter of Hindu Code Bill and the opposition as protector of Hindu religion, in reality the opposition to the Hindu Code Bill cut across political parties. The Dharma Nirnaya Mandal’s observation at the grassroot level in this respect is noteworthy: … as none of the present political parties as such is keen about the successful passage of the Bill; we were not able to secure cooperation from any party. No doubt, in places like Pandharpur, Sholapur, Dhulia and Akola, local Congressmen did organize our programme but that was in their personal capacity.99

This signifies the ground realities and the overall lack of support to the Code. The importance of discourse as a mode of transmission of the power structures of society can be discerned from the observation of the Dharma Nirnaya Mandal that, It is also necessary to counteract the propaganda carried on by the antiHindu Code Conference against the Bill, by convening conferences at important places like Delhi, Indore, Nagpur, Madras etc. of all persons who have expressed themselves in favour of the Bill.100

In another Dharma Nirnaya Mandal publication, Why Hindu Code, authored by T.K. Tope, Professor of Hindu Law, Government Law College, Bombay and H.S. Ursekar,101 Pandit Raghunathshastri Kokaje wrote in the preface, The Hindu Code is a burning topic in the country for the last few months. The public opinion is divided and both the supporters and 98

Ibid., Section 6, p. 3. Ibid., Section 7, p. 4. 100 Ibid., Section 8, p. 4. 101 T.K. Tope and H.S. Ursekar, Why Hindu Code?: A Historical, Analytical and Critical Exposition of the Hindu Code Bill, Dharma Nirnaya Mandal, Lonavala, Dist Poona, 1950. 99

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opponents of the Code have mustered strength around them and carried on propaganda. The propaganda-machinery of the opponents is more organized than of the supporters.102

In the public sphere, the opponents of the Hindu Code were able to control the communicative process effectively, and more strongly than the women’s organizations. Such an understanding is strengthened by the arguments of Dwarkanath Mitter.

TWO RECURRENT THEMES IN THE HINDU CODE BILL CONTROVERSY Two interlinked themes significantly influenced the formative process of the Bill. The first theme was the identity of motherhood while the second theme was related to women’s succession rights to land and property.103

Motherhood and the Hindu Code Bill The social construction of Indian motherhood was influenced by customs and practices in which motherhood was assigned a sacrosanct space as a crucial determinant of the ultimate identity and worth of Indian women. The identity of motherhood thus completely overshadowed all other identities of Indian women and as a result, the Indian woman was raised in a culture that trained her to be an ideal mother from early childhood. During the debate over the Hindu Code Bill in the Constituent Assembly, for instance, Thakur Das Bhargava observed: Women are the mothers of the race. No race can advance till its women can be responsible mothers and conscious citizens. There has been a good deal of propaganda done about educated women. A handful of educated women, it is said, want this Hindu Code or want this very halting and mild measure of reform. Sir, so far as women are concerned, it must be a handful because after all the educated element of this country is 15 per cent and the women who are educated are about 3 or 4 per cent even now. So, so far as the women are concerned it must be a handful, but behind them are, not today only but from decades past, the large mass of enlightened and progressive men….104 102

Ibid., Preface, p. i. Sukumari Bhattacharya, ‘Motherhood in Ancient India’, Economic and Political Weekly’, Vol. XXV, Nos 42 and 43, October 20−7,1990, p. WS-50. 104 Constituent Assembly Debates, April 8, 1948, p. 3470. 103

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In a similar vein, in the clause by clause discussions on the Hindu Code Bill in the Parliament, Madan Mohan Malaviya stated: ‘In the brahmin society the woman has been given the highest place. There is nothing higher than the mother.’105 Legislator Krishna Chandra Sharma also noted: Our mother is a respected being and our daughter is part of our life and blood. Is that not so? Why then do you raise the cry that this is something which will bring down Hindustan and that the Hindu society will be crushed to pieces? There is nothing in religion, there is nothing in culture, there is nothing on the basis of Hindu society that is against these conditions and repugnant to them.106

Motherhood was thus central to the structural configuration of the family, and was characterized by a glaring dichotomy one associates with patriarchal dominance, glorification without empowerment. As a matter of fact, the glorification of motherhood co-existed with her low status in social structure. Rituals surrounding the birth of a child in family clearly indicated that the centre of attention remained the father and the child, while the mother was neglected in the entire episode of childbirth. After the delivery of the child, the role of the mother gets over and the mother is pushed back into the inner courtyard, as observed by Bhattacharya (1990): ... the rituals and prayers are all directed towards the baby; the mother is neglected. From then on the father takes charge of the baby and conducts her naming, the first rice-meal, the tonsure, the piercing of the ear, until the ritual initiation for education. The mother, after all her suffering, tension, anxiety and pain is quietly forgotten, shelved to the dark oblivion of the interior of the house until she conceives again when the same cycle is repeated.107

Women’s deprivation from access to food and basic necessities, reproductive health care, property rights, independent income, rights in decision making process in relation to the children and family, and her rights as widow did not get adequate attention for a fairly long period in Indian history. The patriarchal subordination of women as mother was premised upon Manu’s invocation of the superiority of the seed over the womb: ‘Of the seed and the womb, 105

Parliamentary Debates, Volume. XV, Part I, September 19, 1951, pp. 2872—96. Constituent Assembly Debates, Volume VI, Part II, December 12, 1949. 107 Bhattacharya, ‘Motherhood in Ancient India’, p. WS-51. 106

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the seed is superior. All creatures of life assume the qualities of the seed.’108 The notion got fossilized over time and broadened during the Mughal rule where too patriarchy made motherhood invisible in the anonymity of the harem. While the reproductive production of wives under the harem was important for continued expansion of the empire, motherhood was not considered worthy of much emphasis and ignored even in imperial birth. During Prince Salim’s birth for instance, there is no mention of the name of the mother in the official congratulatory note. Several other births mentioned in the Akbarnama also fail to recognize the mother. The Indian society, however, began to demonstrate signs of change since the early nineteenth century. The nineteenth century witnessed extensive debates concerning core issues with respect to gender relations within the family and society; and the abject neglect of women as wives and mothers in Indian society was put under the scanner by enlightened social reformers and also began to be discussed in an emerging media. The common thread that ran across the presence of diverse social reform movements was a re-examination of social customs and institutions from a rational perspective and the consequent redefinition of the traditional role of Indian women as wives and mothers in society. The broad aim of the social reform movements that began in the nineteenth century was to emphasize the need for removal of social and legal inequalities with regard to women, the voices of protest against customary practices. While the British religiously followed the policy of non-interference in customary practices, they also projected India as a white man’s burden, where colonial rule was essential for the salvation of a backward society. Legal enactments empowering women therefore concerned mainly those customs that were grossly unacceptable from the viewpoint of Western rationality. Beginning with the onset of the twentieth century, the necessities of the nationalist struggle brought women into the public sphere. Active participation in the Swadeshi movement helped bring about a remarkable shift in women’s perspective towards life. A deeper understanding of the basics of agitational politics propelled women towards fighting for their own rights as daughters, wives, mothers, 108 Wendy Doniger and Brian K. Smith (tr.), The Laws of Manu, New Delhi, Penguin, 1991, Chapter 9, p. 201.

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and widows as they began to perceive the need to organize for their own cause. In official circles too, discussions about improving the rights of women gained ground. There was a growing realization that idealism surrounding the marriage and motherhood must be accompanied by effective rights for women as wives, mothers, and widows. The Report of the Hindu Law Committee, 1941 observed: ‘But a lofty ideal of marriage ill consorts with a low standard of property rights: if a widow is expected to be true to her deceased husband till death, she must be assured of the means of subsistence during her widowhood.’109 The process of change was most significant during the 1940s and 1950s not only because the base for further reforms for Indian women was laid down in the first three decades of the twentieth century; with regard to the legal rights of women, the Indian society was at its communicative peak in the 1940s and 1950s. The discourse of the time reflected the tensions of the prevailing incongruous ideologies. On the one hand, an emerging liberal outlook that was in favour of greater legal privileges to Indian women, thereby redefining notions of Indian motherhood and on the other, the traditional religious orthodoxy demonstrated the anxiety about preserving the highest morals as reflected in the customary practices of the Hindu society; which within the contours of the family meant upholding the notion of ideal motherhood. The decision by the government in 1941 to form a Hindu Law Committee to look into some aspects of Hindu law, mainly property rights of Hindu women and in 1944 to reconstitute the Committee to prepare the complete code of Hindu law in the contemporary context raised the debate on the rights of Hindu women to unprecedented heights. While the women’s organizations and liberal forces saw this as an opportune moment in history to put India on the path to become a progressive, modern, and egalitarian nation, the orthodox segments strongly resented and resisted the Hindu Law Committee’s efforts to tamper with the sacred Hindu religion. In the debate over the Hindu Code Bill, the motherhood identity became a contested notion. The pativrata domesticated ideal mother dedicated to progeny became the signifier for the immense virtues of Hindu religion. At the same time, a new identity of motherhood gained ground, a mother who 109

Report of the Hindu Law Committee, 1941, p. 14.

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is placed both in the private and the public spheres, a mother whose education generated several positive externalities in the family, and as a companion to her husband, she made the Indian family worthwhile to live. While the legal resolution of the conflicting imagery can be found in the enactment of the Hindu Code Bill in 1955 and 1956, the interlinkages between social consciousness and law formation made the 1940s and 1950s an extremely fertile phase in Indian socio–legal history. The inclusiveness, vibrancy, and the intensity of the process of law formation within the public sphere and the legislature ensured that the period was to be identified as a major break in Indian social history. The process of transition, which escalated with the coming into existence of the Deshmukh Act in 1937 to the family law reforms of 1955 and 1956, saw a significant communicative interaction of the legal sphere and the public sphere. Law was created not merely by the lawyers; it was the outcome of intense social interaction. The Hindu Code Bill was intensely debated in legislature, in bar associations, in social and religious organizations, in public meetings and in the women’s organizations. As a result of the intense debate, the Indian society got polarized into liberals who wanted to create a modern legal framework to build a secular India and the conservatives who wanted to uphold the sanctity of the age-old Hindu religion and its rituals. As the debate engulfed the educated segments in many cities across the whole nation, the discourse over the Hindu Code Bill came to represent the transient social consciousness of a nation trying to emerge out of colonial shadows through a major nation building project. The notion of motherhood was placed right at the epicentre of the debate over the Hindu Code Bill. One of the central aspects of the debate surrounded the identity of motherhood. Under the British, however, this feudal form of Brahmanism gave way to a modernized, updated, ‘reformist’ Brahmanism which constructed an image of ‘Hindu woman’ transcending caste differences but drawing to a considerable degree from the patriarchy of traditional Brahmanism. Beneath reforms such as the sponsorship of widow remarriage were the important high caste norms of pativrata, that is, the ideal wife, the sanctity of marriage, and the authority of husbands in the home to all the sections of what was now seen as a ‘Hindu community’. At the same time, the efforts of the colonial administration towards codification of Hindu laws aided in preserving the kernel of patriarchal notion of motherhood

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in Indian society, epitomized by the trade-off of glorification of the mothering as a social role at the cost of abject denial of absolute rights of mother. This patriarchal conception of motherhood, however, came to be strongly challenged by liberal segment of the Indian population during the 1940s, with support from women’s organizations, which, by then, had assumed pan-Indian character. Consequently, the proposed reconstruction of the frozen perception of motherhood through her empowerment turned out to be the key area of communicative action over the Hindu Code Bill. The process of redefining the Indian motherhood was painful and contentious. Opposing ideologues presenting diverse views of Indian femininity and ideal motherhood appeared in the discourse of the time. Broadly speaking, contesting images of motherhood appeared both in the public sphere and the legislative sphere. The debate was seen in the light of the Rau Committee Report, 1941; the evidence collected by the Hindu Law Committee in 1944 and 1945; and the sporadic references and letters that appeared in the print media. The debate over the Hindu Code Bill, to a great extent, shaped the modern Indian notions of motherhood. In the absence of a social consensus, the power play between the liberal and orthodox segments was a foregone conclusion. But the extent of divisiveness brought about by the debate was indeed unexpected. In trying to figure out the role of women as wives, mothers, and widows in society, the entire society got polarized, bar associations were divided, political parties were segmented across liberal and conservative ideologies, social associations took drastically different stances, and the women’s associations also looked at the issue from diverse positions of the liberal–conservative spectrum. It is noteworthy that several organized women’s associations (WIA, AIWC, and others) with pan-Indian character provided strong support to the Bill. Through its journal, Roshni, the AIWC pressed strongly for a Hindu Code in which men and women had equal rights in inheritance and marriage. The AIWC held a standing committee meeting in Bombay in May 1941 to draft a statement to the Rau Committee and answer its questionnaire.110 The women’s movement protested the absence of women on the Rau Committee and urged an expansion in the scope of the Committee so that all areas of Hindu law could be codified and reformed. The 110

AIWC, Roshni, July, 1941, pp. 25–30.

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demands of the women’s organizations encompassed equal rights in inheritance, marriage, guardianship, requirement of the consent of both parties for marriage, abolition of polygamy, and legalization of divorce. The AIWC also urged provincial legislatures to extend the Deshmukh Act to agricultural land. In Indian society, the debate over the construction of motherhood through legal reforms centred on several rights of women. These rights encompassed property rights, marriage rights such as monogamy and divorce, rights of guardianship and custody of children, rights relating to adopting a child and giving away a child in adoption, and women’s right to maintenance.

Rights in Matrimonial Homes The Hindu Code Bill sought to introduce two major changes in marriage laws with a view to improving the condition of women as wives and mothers. The first included legally ending the practice of polygamy, and the second was an enabling provision of divorce in the Hindu law. Though polygamy was not practiced by the Hindu society in a major way, the debate could not agree on the need for introduction of legislations banning polygamy. The major contention for those objecting banning of polygamy surrounded women as mothers. The main argument was that if a woman as wife failed to perform her principal function of bearing a child as a mother, for the continuation of the family, the husband should be entitled to a second wife. In the legislative assembly debates of 1943, Renuka Ray narrated sufferings by Hindu women due to lack of property rights and referred to the disastrous consequences of polygamous marriages on women. She asserted that the Hindu Code Bill would alleviate such sufferings. She also argued that polygamy was immoral and had to be prohibited, as Sati had been in 1829. The President of the AIWC, Rameshwari Nehru, asked for the enlargement of the scope of the Hindu Law Committee and a complete revision of the Hindu Code. Lady Vidyagauri Neelkanth of the Gujarat Social Reform Association observed: ‘Monogamy should be the strict rule, without any exception whatever. Even in the case of barrenness, monogamy should not be permitted. Monogamy should not make men more moral, but raise the status of women in society.’111 111

Oral Evidence to the Hindu Law Committee on February 8, 1945. p. 13.

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The All India Hindu Mahasabha was quite vocal in their dislike of monogamy imposed upon the Hindu society as a law; Ganpat Rai, its Delhi branch president noted ‘I am against monogamy in the present day conditions. A Hindu should have the right to marry as many wives as he likes without any restrictions, if any, mentioned in the well known texts on Hindu law being revived.’112 The Sanatana Dharma Rakshini Sabha of Meerut linked polygamy to the male issue by the first wife, ‘We object to the monogamy provision: a man should be able to take a second wife, unless he has a male issue by the first wife. If he has a male issue, monogamy should be enforced.’113

Divorce Prior to the institution of the Hindu Code, the legal right to divorce was not available to the Hindu women. The Hindu society regarded marriage as an indissoluble institution. This enabling provision created a significant amount of discomfort to the Hindu community. Many religious organizations found divorce completely unacceptable. For instance, the Hindu Code Deliberation Committee, Nandiad, conveyed to the Hindu Law Committee that ‘only a Kanya (virgin) can be married with the sacramental rites…hence the reference to marriage as Kanyadan. The marriage of a Kanya is indissoluble.’114 Such strong sentiments were echoed from all over the country. In Delhi, a representative of the Sanatan Dharma Rakshini Sabha strongly objected to divorce stating that ‘we would not allow a woman to get divorce and marry again even if her first husband became a lunatic or a convert.’115 On the other hand, women’s associations such as the All India Women’s Conference provided strong support to the provision of divorce as an enabling mechanizm for Indian women. Rameshwari Nehru stated ‘It is difficult to expect unanimity—but the majority of vocal opinion among women is now in favour of it (divorce).’ She assured the Hindu Law Committee that ‘no disturbance shall arise if divorce is permitted, it will be a permissive law: of which 112

Ibid., p. 15. Statement of Mr Gyan Prakash Mittal and Shri Prabhu Dayal Sharma on behalf of the Sanatana Dharma Rakshini Sabha, Meerut in front of the Hindu Law Committee in Delhi on February 8, 1945. 114 Sunderlal Joshi’s statement before the Hindu Law Committee in Bombay. 115 Oral Evidence to the Hindu Law Committee on February 8, 1945, p. 15. 113

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who do not want it should not avail himself. If Hindu law refuses to permit divorce, women will be forced out of the Hindu fold.’116 Renuka Ray added that ‘Baroda has a divorce law. Few have taken advantage of it: very few and only in extreme cases.’117

Motherhood and Adoption Rights The debate of adoption was rather muted when seen against the rage and passion that engulfed the debates relating to marriage and property rights. As a matter of fact, there was little in the proposals concerning adoptions that may be termed as revolutionary in terms of deviations from social practices. The status quo on adoptions was part of the balancing act of the Hindu Law Committee while drafting the Hindu Code Bill. The non-controversial nature of this part of the Code can be understood from the reactions of staunchly orthodox segments of the Hindu community. For instance, the Sanatana Dharma Rakshini Sabha, Meerut, which was opposed to the very idea of a Hindu Code, stated, ‘We have no objections to the adoption provisions of the Code; nor do we have any objection to the minority and guardianship provisions.’118 This statement basically summed up the orthodox view of the Hindu Code Bill. The Nasarpur Bar Association, West Godavari District, claiming to speak on behalf of all Hindus of the Andhra districts, stated, ‘We are against the provisions of the Code except as regards the parts relating to adoptions and guardianship. These parts, we accept, subject to slight modification.’119 The liberal segments of the society pointed towards the limitations of the proposals of the Hindu Code Bill relating to adoption. B.R. Ambedkar, while discussing the Hindu Code Bill in the Constituent Assembly, noted, I think it is right that we preserve the right of adoption which the orthodox community cherishes so much, but sir, I do not understand why there should be adoption. Most of us who make adoptions have no name to be recorded in history. Personally, I myself certainly would not like my name 116 Oral Evidence Tendered to the Hindu Law Committee on February 10, 1945 in Government of India, Oral Evidence Tendered to the Hindu Law Committee, published in Madras, 1945, p. 17. 117 Ibid., p. 17. 118 Ibid., p. 15. 119 Ibid., p. 19.

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to go down in history, because my record is probably very poor. I am an unusual member of the Hindu community. But there are many who have no records to go down and I do not understand why they should indulge in adopting a son—a stupid boy, uneducated, without any character—not knowing his possibilities and fastening him and fathering him upon a poor woman, whom he can deprive of every property that she possessed. Therefore, my submission is this, that if you do want to cherish your old notions with regard to adoption, at any rate makes this provision that the adopted boy does not altogether deprive the mother of the property which is her mainstay. I do not think that that limitation can be at all a point of controversy.120

In the written and oral evidences submitted to the Hindu Law Committee, the women’s organizations in particular stressed the need for giving greater rights to the mother in adoption. The AIWC President, Kamaladevi Chattopadhyay, wrote to the Hindu Law Committee that ‘the father should not be able to give a boy in adoption without the mother’s consent.’ The AIWC also urged that ‘in respect of this right as well there should be complete equality between the sexes. Both a man and a woman may be permitted to adopt either a son or a daughter.’121 The Representative Committee of Hindu Ladies, Mumbai, sought to enhance the role of mothers in adoption: we feel that in a case whereby adopting a son is being introduced into the family and he is being sent out by his natural family, the consent of the natural mother of the boy should be compulsory where the father gives in adoption and where the father adopts, the consent of the wife, if living with the husband, should also be made compulsory.122

On a similar note, Diwan Bahadur V.V. Joshi in his letter to the Rau Committee in Bombay suggested that ‘as the mother is now fully competent to deal with property, in the context of adoption also, she should enjoy rights similar to her husband in giving away her children in adoption.123

120 Constituent Assembly of India (Legislative) Debates, Volume II, Part II, February 24, 1949, pp. 826–43. 121 Written Evidence Tendered to the Hindu Law Committee, Volume 1, p. 19. 122 Ibid. 123 Ibid.

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Guardianship and Custody Primacy of father as natural guardian is embedded in Hindu customary law. In Githa Hariharan v. Reserve Bank of India (1994), writer Githa Hariharan applied for 9 per cent Relief Bonds of the Government of India in the name of their minor son. RBI replied that ‘We advise you either to produce an application signed by the father (of the child) or a certificate of guardianship from a competent authority in favour of the minor son immediately to enable the bonds for you.’ In protest, Githa Hariharan filed a writ petition in the Supreme Court in July 1995 against RBI under Articles 14 and 15 of the Constitution challenging Section 6(A) of the Hindu Minority and Guardianship Act read with Section 19(b) of the Guardians and Wards Act, 1890. Githa Hariharan herself wrote: ‘All the customary laws—beginning with the Hindu laws on marriage, succession, and guardianship need to be examined for their violation of women’s rights.’ The debate in which Githa Hariharan was engaged was related to the role of women in guardianship. This debate came up in the course of the Hindu Code Bill. During the Constituent Assembly debates of 1948, B.R. Ambedkar stated: The Committee felt that as this was a Code intended to consolidate the Hindu society and their laws, it was desirable to impose this condition, namely, that the father shall continue to be the natural guardian so long as he continues to be a Hindu. The Code in its altered form also has introduced another change, namely, that a Hindu widow has been given power to appoint a testamentary guardian if her husband has not appointed anyone. She had not any such power and this power has been given to her by the Select Committee.124

With regard to guardianship, Hansa Mehta pointed out that father continues to remain the natural guardian of the children and observed that the women’s organizations in India would like the mother also to be a co-guardian of the children with the father. In retrospect, the Hindu Code Bill set out to achieve the most challenging balancing act in Indian social history in its endeavour to arrive at a Hindu law which while fulfilling the dreams of modernity is also compatible with core values of the Hindu society of the 124 Constituent Assembly of India (Legislative) Debates, Volume II, Part II, February 24, 1949, pp. 826–43

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mid-twentieth century. This turned out to be a very difficult exercise, dividing the society in its opinion as never before. When it came to the Hindu Code Bill, families were divided in their support for the Code, the bar associations throughout the country got divided on the issue and many religious and social organizations had to debate internally within the organization to find out a unified approach to the Hindu Code Bill. While the codification process of the Hindu law enveloped the widest possible gamut of issues in relation to the Hindu family laws, the discourse eventually concentrated on the imagery of women as wives and mothers within the Hindu family fold. The discourse was epitomized by the struggle of liberal and conservative forces over the contested terrain of motherhood. While the conservative segments over and over again upheld the elevated principles of motherhood in terms of a model, pativrata wife, confined to the private spheres of the family and centrally focused to perform her role as mother, another image of a liberated women was slowly gaining ground, owing to a fortuitous constellation of social realities characterized by the growth of Western education, growing participation in the nationalist movement and emergence of pan-Indian and localized women’s organizations. The fractured social consciousness with co-existence of multiple images of women in Indian society called for a synthesis to sustain the social fabric. The Hindu Code Bill provided a platform to achieve a consensus on motherhood in Indian society, and contributed to the process of transforming the Indian mother from its domestic confines with exclusive focus on child bearing and rearing towards a somewhat broader role with presence both in the domestic and public spheres. By providing an opportunity to the Indian society to debate intensely on issues surrounding motherhood and women’s role in family, the Hindu Code Bill discourse was an important communicative process that created an ideal pedestal for the Hindu family law reforms of the mid-1950s. Voices towards the creation of a legal backbone for ushering in an egalitarian society came in conflict with a vehement opposition by patriarchal orthodoxy in the social sphere, followed by the expected resultant ripples in the legislative sphere. The discourse over the contested conception of motherhood played a critical role in the foundations of family law reforms in India and in the institution of gender rights.

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LAND AND PROPERTY RIGHTS IN THE HINDU CODE BILL DEBATE Property Rights for women was the reason why the Hindu Law Committee was set up in 1941. The orthodox view was that apart from disrupting the religious fabric of society, the Code also disrupted the economy by giving women more property rights leading to the fragmentation of property.125 In the legislative debate in 1943 and 1944, deviations from firmly grounded notions of motherhood and femininity were criticized by a sizeable number of legislators during the draft stage of the Hindu Code Bill.126 The legislature was divided by sharply polarized views over the emerging construction of femininity and motherhood embedded in the Bill. Babu Baijnath Bajoria, the leader of the opposition, for instance, argued that Hindu women, being nurtured by society to fulfil the role of ideal wives and mothers, were not in a suitable position to manage property. He thus moved an amendment for postponement of the Bill that proposes to destroy the very notions of family and the place of women within the family. In the same vein, Bhai Parmananda, a vocal legislator with orthodox views, criticized the government for destroying the very basis of Hindu society, when there was no demand for change among the people. The Bill, he felt, was likely to destroy the family structure and would lead to fragmentation of property. He felt that giving women greater property rights in the form of simultaneous heirship of the daughter as recognized in the Bill, the moral obligation felt by the brother to maintain and marry off his sisters would vanish.127 Another member of the Assembly, Lalchand Navalrai raised an objection regarding the right of a married daughter who would get a share from her husband’s side and also a share in her parental house.128 Renuka Ray used texts which had been utilized by Rammohan Roy in the 1820s, to demonstrate that women had originally enjoyed inheritance rights under Hindu law. The question of property rights to women was one of the dominant themes in the public debate over the Hindu Code Bill in 1944 and 1945. Strong support in favour of property rights for women came 125

Ibid., p. 83. Harold Levy, Indian Modernization through Legislation: The Hindu Code Bill, PhD thesis, University of Chicago, 1973, pp. 340–5. 127 Legislative Assembly Debates, Volume II, March 24, 1943, pp. 1414–18. 128 Ibid., pp. 1605–11. 126

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from the liberal segments of society and women’s associations. In the oral evidence tendered to the Hindu Law Committee in Bombay in January 1945, M.C. Setalvad, representing the Bombay Bar Association stated ‘The Mitakshara Jurisdiction should fall in line in this respect with Dayabhaga. These doctrines lead at present to a great deal of litigation and immoral litigation at that. This is my personal view and also the view of the majority of the bar associations.’ Supporting widows right to absolute ownership of property, Setalvad argued that ‘widows should inherit in the family of the husband as at present in Bombay.’129 Lady Vidyagauri Neelkanth, President, Gujarat Social Reform Association and the Bombay Provincial Women’s Council (Ahmedabad Branch) observed the Hindu Code Bill as a compromise between liberal and conservative values in society. She said, ‘Much as I would like sons and daughters to have equal shares, I accept the provisions of the Code as a compromise.’ She also supported the conferment of absolute rights to women, ‘I support the absolute estate to women. I do not feel that women are incapable of safeguarding their interest in any property any more than men are. Women alone are not exposed to the dangers of squandering: men squander property quite as often.’130 When the Constituent Assembly debated the Hindu Code Bill in 1948, Hansa Mehta felt that the daughter should get an equal share in the property of her father with the son and the son also should get an equal share in the property of his mother with the daughter. Supporting absolute rights to property for women, G. Durgabai observed, This takes me on to another subject and that is about the status of women with reference to the holding of an estate absolutely and not in life. The Bill seeks to remove this disqualification attached to woman’s estate and it gives her the right to hold property absolutely and not for life only. The main argument in favour of limiting the estate in the case of women is that they are incapable of managing it and also that they are likely to be duped or exploited. Also it is said that they are illiterate and they do not understand the principles of management and hence there will be a strong inducement to designing male relatives to take away her right. My answer 129 Government of India, Oral Evidence Tendered to the Hindu Law Committee, Madras, 1945, p. 7. 130 Ibid., p. 8.

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to all this is this. The House is aware that the daughter has an absolute estate in Bombay today. Therefore, on that ground I do not think they are exposed to any risk. The other argument is that we have score of instances where women have proved better managers than men.131

The opposition to giving women an absolute estate in property was equally strong. The critiques of the Hindu Code were quick to point out that the Hindu Code was a deviation from the Hindu shastras as expounded in the well known texts of Manu, Yajnavalkya, Parasara, and others. One such outburst can be seen in the oral evidence of Sunderlal Joshi, President of the Hindu Code Deliberation Committee of Nandiad.132 Therefore, they were against conferring absolute rights to women in property. In a similar vein, Ganpat Rai, Advocate, representing the Delhi Provincial Hindu Sabha, a branch of the All India Hindu Mahasabha stated, ‘I object to the granting of an absolute estate to women. My objections are : (1) that in order to keep the property in the family, they will begin to marry sapindas; (2) that women are weak physically; (3) that their character will suffer, if they are given an absolute estate.’133 Rai Bahadur Harishchandra, on behalf of the provincial branch of the all India Hindu Mahasabha (Delhi branch) observed ‘Women should only have a limited estate, even if Vignaneswara declared otherwise. They are incapable of managing property.’134 Nilakanta Das, MLA, stated: ‘if women get an absolute estate, Muhammadans in East Bengal will take away both the women and the estate.’ At the Constituent Assembly, Thakurdas Bhargava argued that if the Hindu Code Bill comes into vogue, the property rights for women as proposed in the Hindu Code will come into conflict with the cultural practices of the Hindus. He constructed a hypothetical situation when a lady succeeds to the property of the father as well as to the property of the husband. Suppose the lady dies leaving husband and children, it is clear that the husband has been given the right and the children also succeed. So far so good. Then, when the husband and the children are not there, who 131

Constituent Assembly Debates, April 8, 1948. Government of India, Oral Evidence Tendered to the Hindu Law Committee, Madras, February 6, 1945, Bombay. 133 Ibid., February 8, 1945. 134 Ibid., February 9, 1945. 132

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succeeds? The father and mother of the lady. These people—there are lakhs like them—who do not even want to touch water from the house of the daughter, will get the property. … Sir, that as soon as the father gives away the daughter to the son-in-law, the father never goes to the house of the daughter, never takes his food in her house and never even drinks water in her house, so that the purity is maintained that no daughter may be given in marriage for mere consideration or any other material gain. That is the basis. There are many people who would not even go to the village where the daughter is married. We must recognise facts as they are; it is no use saying that they do not know. It is quite possible that they do not know. It will happen that the father-in-law would get property bequeathed by the lady. That will be an intolerable position.135

The debate over the Hindu Code Bill provides several clues as to why such a critical issue as the inheritance in agricultural land was kept untouched. The communicative process surrounding the codification of succession laws in India. The issue of property rights in agricultural land came up in the debate over the Hindu Code Bill in 1944 and 1945. The Report of the Hindu Law Committee, 1941, while examining Hindu Women’s Right to Property Act,1937 termed the succession of agricultural land as ‘the most pressing problem.’136 As early as in 1941, the Hindu Law Committee highlighted the problem. It also came up with two model bills to facilitate provincial legislation in this regard. The report notes: How will the legislation be enacted? The Centre cannot formally legislate upon the succession of agricultural land. The provisions of Section 103 of the Government of India Act, 1935, which enables the Central legislature to legislate with respect to matters in the Provincial legislative lists upon resolutions by the Provincial legislature is not of much avail in the present circumstances, when the normal legislature is not functioning in most of the Governor’s Provinces. It follows, therefore, that the legislation proposed can be enacted only by means of Governor’s Act in most of the Provinces and by Provincial legislations in the rest.137

An attempt was made by the Hindu Law Committee in 1941 to promote uniform and progressive laws in agricultural land. The 135

Constituent Assembly of India (Legislative) Debates, Volume II, Part II, February 25, 1949, p. 913. 136 Report of the Hindu Law Committee, 1941, p. 20. 137 Ibid., p. 21.

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subsequent debate in the public sphere and in the legislature demonstrated the tensions in legislating land rights in India. Several social and religious organizations were opposed to property rights for women. To quote a few, the Bar Association of Ajmer pointed out: ‘I still think that daughters should continue to be excluded from inheritance. The present system is not arbitrary but has lasted over centuries.’ The International Aryans League, Delhi, advanced the fragmentation argument, suggesting that women should not be given property rights on the grounds of economic efficiency. The fragmentation argument was also advanced by the South India Club of New Delhi, despite their progressive posture in other aspects of Hindu law reform. While opposition to property rights for women was strong, there were some sensible suggestions to remove the anomaly in the Hindu Code Bill. In a written statement submitted to the Hindu Law Committee, the Bombay Presidency Social Reform Association observed: The objection on the ground of excessive fragmentation has no substance in it. Had her husband been alive, he would have taken a share and that would not have been objected to on the ground of excessive fragmentation. …it would be relevant to mention here that when some years back the Government of Bombay had proposed legislation for preventing fragmentation of land into uneconomic holdings, the proposal was stoutly opposed by the public.138

They, however, favoured a situation that ‘the male heirs should be given the option to pay to the female heirs for the money value for the shares that she would be entitled to get on inheritance.’139 The central point in the Hindu Women’s Right to Property is that agricultural land falls beyond the purview of the central legislature. Considering this, Diwan Bahadur V.V. Joshi of Bombay wrote to the Hindu Law Committee, The Committee appears to be labouring under the limitations placed on the Central legislature by the Legislative lists; but these should not have weighed with the Committee at all. There are two courses open. The Central Government may move the Parliament to revise the Legislative lists so as to give the Central legislature full jurisdiction to enact on all matters 138 139

Written Evidence, p. 2. Ibid.

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of personal law of the Hindus, and if properly presented, the argument will surely carry weight and achieve success. The other course would be to enact suitable legislations to matters falling within its competence, leaving the other provisions to be implemented by the Provincial legislature with such modifications as the special local conditions and public policy would demand. Now that the Committee is charged with the task of drafting the entire Hindu Code, it need not feel hampered by considerations about the future of the Code and its passage through the legislature, either Central or provisional.140

The Bombay Bar Association suggested necessary amendments to the Government of India Act, 1935, to revise the legislative lists and to give the central legislature full jurisdiction to enact on all matters of personal laws including agricultural land, a state subject in the list. The Bombay Bar Association made the following recommendation, Unless and until the Central legislature acquires the necessary powers to legislate for agricultural lands by obtaining the requisite amendment to the Government of India Act, 1935, there will not be uniformity in the law of succession to agricultural and non-agricultural properties. We have therefore, to repeat our suggestion made on two previous occasions, and say that would be the only effective course to secure uniformity of legislation in the whole of India.141

These suggestions were ignored by the Report of the Hindu Law Committee, 1947. The Committee observed, The exclusion of agricultural land from the scope of the Code has naturally led to the contention that a Hindu Law of Intestate succession which omits to deal with the bulk of the property in India cannot be regarded as having attained the fundamental objective of uniformity. We would, however, point out that what we have aimed at is uniform law for all Hindus and not necessarily a uniform law for all forms of property. It may well be that in the interest of agriculture, special laws in due course will be enacted to secure the consolidation and prevent the fragmentation of agricultural holdings, and these may include a special law of succession, differing from the law applying to other forms of property.142

140

Ibid., p. 9. Ibid. p. 15. 142 Report of the Hindu Law Committee, 1947, p. 10. 141

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DEBATE OVER LAND RIGHTS IN THE CONSTITUENT ASSEMBLY In the very first day of the debate over the Hindu Code Bill in the Constituent Assembly on April 9, 1948, a member from UP, Naziruddin Ahmed raised the issue of agricultural land, It is well known that agricultural land is beyond the purview of this House. It is a Provincial subject. Whatever law we may pass will affect only nonagricultural lands, whatever that expression may mean… a large proportion of our property-about 80 per cent—consists of cultivable land. Thus, it is perfectly clear that the provinces will have to deal with them and they may deal with them in a different manner and some provinces may not deal with them at all….

He further added, “Whatever law you pass, it should be uniform and it would be far better to collect opinions from the Provincial Governments and to ask for their consent and deal with it on an all India basis, and it should also be a proper thing to ask for the States in this matter.’ While the fragmentation argument was raised again and again by the conservative legislators, the women legislators asked, ‘Why is the argument (of fragmentation) torted out in the case of daughter’s inheritance? The same thing applies if a man has more than one sons … the better thing would be to have a law against fragmentation…or there is another alternative and that is collectivisation of land.’143 Despite such arguments of women’s organizations and the concerns in the legislative assembly about the constraint placed by the Hindu Code Bill, the Hindu Succession Act, 1956 did not include agricultural land in its fold. Landed property was governed by the legislations at the state level. The Hindu Succession Act, 1956, governs the inheritance laws concerning non-agricultural land. The issue of succession came up in numerous instances in the legislature, and as discussed above, the participants in the Hindu Code Bill have also shown awareness of the limitations placed on the issues covered by the Bill for the non-inclusion of landed property. The authors of the Code and those debating for and against the proposed changes in law showed awareness, though they failed to resolve the issue. As Moore (1955) observed: ‘Property laws in agricultural land have not been clarified anywhere in the Acts dealing with it.’ 143

Ibid., p. 3643.

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Since the passage of the Hindu Succession Act, 1956, the gender dimension in the devolution of agricultural land was forgotten. With the thrust on planned economic development, economic efficiency arguments were advanced frequently. Whenever social justice in land distribution came under the scanner, it did not have the gender element embedded into it. The Hindu Succession Act of 1956 was accepted as a progressive step to ensure gender equality in property distribution. There was however, one exception to the overarching impact of the Act. Its Article 4.2 stated: ‘For the removal of doubts, it is hereby declared that nothing contained in the Act shall be deemed to affect the provisions of any law for the time being in force, providing for the fragmentation of agricultural holding or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.’144 In the context of succession to agricultural land, the clause 4(2) meant that for a significant portion of agricultural land (held under tenancy or falling under ceiling laws), the Hindu Succession Act, 1956 will not be applicable. Being a state subject, legislations of state governments will prevail. Accordingly, the entire north India would be governed not by the Hindu Succession Act, 1956 but by the laws preceding them, including, 1. Delhi Land Reforms Act, 1954 2. The Punjab Tenancy Act, 1887 3. Pepsu Tenancy and Agricultural Land Act, 1955 4. The Rajasthan Tenancy Act, 1955 5. The Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 These Acts, which continued to govern the devolution of agricultural land, were all premised upon deeply entrenched patriarchal values, where inheritance was given to male heirs, while women were deprived of absolute interest in property. The basic tenets of Mitakshara legal doctrine, in vogue as customary practices since the twelvth century, continued to find its place in the chiefly agrarian north Indian states. While many states in South India, notably Kerala and Tamil Nadu, enacted progressive legislations covering agricultural land rights, time stood still in the north and male domination continued in the succession of agricultural land. 144

Government of India, The Hindu Succession Act, 1956.

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States where the land under tenancy had a different rule of succession, there was a definite patriarchal bias. This was and still is the case for Punjab, Haryana, Himachal Pradesh, Jammu and Kashmir, and Uttar Pradesh. In these states, the tenancy rights were inherited through agnates. Women enjoyed only a limited estate and lost control of land if she remarried, if she failed to cultivate the land. Finally, upon her death, the tenancy land went back to the male lineal descendents. The definition of tenancy often added to the problem. In Uttar Pradesh, the largest state in India, a Bhumihar is treated as a tenant, even though he had absolute ownership of property and transfer rights. Due to such anomalies, a major portion of land inheritance was out of the ambit of the Hindu Succession Act, 1956. Thus the legislative debate over land rights points towards the need for a relook at the issue of property rights in agricultural land, that was beyond the scope and purview of the Hindu Law Committee. This was however, not heeded to at that point of time. It took exactly five decades to bring amendment to the Hindu Succession Act. In 2005, the Hindu Succession Act was amended to include agricultural land also under its fold. The debate in the legislature in 2003 and 2004 on the issue once again raised similar questions that were debated over the Hindu Code Bill in the late 1940s and early 1950s. A futuristic law in 1956 would have corrected five decades of iniquitous legal provisions regarding land rights. While the southern states like Kerala, Andhra Pradesh, and Tamil Nadu enjoyed improved land rights, the north Indian states continued with survivorship through male agnates in joint family property and consequently women were deprived of the right to absolute ownership in property.

ASSESSMENT OF PUBLIC OPINION In retrospect, the debate over the Hindu Code Bill brings out the polarised ideological stands with regard to gender equality. One form of consciousness was a liberal-secular perspective provided by the liberal segment within the Congress Party with its concerns for rapid economic growth, industrialization, poverty eradication and the desire to attain self-reliance. The principal tool through which this new social paradigm of individual freedom and religious equality was sought to be implemented was the Hindu Code Bill, aimed at putting Hindu society firmly on the track to modernization. A liberal view of gender equality was part

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of the agenda of the modernizing State on its path towards an independent existence. While the liberal and secular forces were in control of the political arena of the country in the 1940s, a parallel movement emerged as a reaction to the modernization project along Western lines.145 The presence of contradictory forms of social ideology was mirrored in the public debate on the Hindu Code Bill. As a consequence, any intrusion of tradition came to be defended. Religious sentiments coupled with a strong undercurrent of patriarchy provided strong resistance to any progress with the Hindu Code Bill.146 The debate in the public sphere provides an important primary source for analysing the underpinnings of an ideological debate that went on to shape the cultural paradigm of independent India. The press reports and oral evidence to the Hindu Law Committee revealed polarised social consciousness, with the secular ideology on one side and the traditional religious orthodoxy on the other, with the latter bearing the grievance of a law thrust upon them without option by the State which was desirous to absorb more and more powers in its hand.147 Dwarkanath Mitter’s evidence gives an interesting countrywide picture of the debate. We find the liberal perspective of Bombay getting reflected in the data, as against the stark conservatism of north Indian cities or even Calcutta. This perhaps explains the emergence of a balanced debate in Bombay over the Hindu Code and justifies the choice of Bombay as a location to analyse the public reaction to the Hindu Code Bill. 145 Clifford Greetz, The Interpretation of Culture, Basic Books, New York, 1973, p. 230. 146 See Akeel Bilgrami, ‘Two Concepts of Secularism: Reason, Modernity and Archimedean Ideal’, Economic and Political Weekly, July 9, 1994, p. 1749 for an exposition of the failure of the Nehruvian secular approach to withstand the onslaught of religious orthodoxy. According to Bilgrami, the roots of failure lay in Nehru’s inability to be less substantive in social and cultural issues and the consequent inability to outscore the rigorous communicative process of either the traditional orthodoxy or the left intellectual program. 147 The grievance and its rationale has been dealt with in detail by Madhu Kishwar, ‘Codified Hindu Law: Myth and Reality’, Economic and Political Weekly, August 13, 1994, p. 2145. Kishwar argues that in a bid to attain uniformity, the Hindu Code Bill proposed to decimate more liberal practices in many parts of the country. As the oral evidence and the parliamentary debates that followed revealed, this was one central component of the orthodox argument against the Hindu Code.

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The analysis of evidences from Bombay also shows that the women’s movement played a crucial role in articulating gender concerns. The women’s movement strove for an equitable legal platform as the first instrument of ensuring gender equality. Their strong support to the Hindu Code Bill in the 1940s and 1950s needs to be seen from the perspective of the growth of a feminist consciousness. The women’s movement was aware of the potential of the public sphere, and tried to develop a system of communicative action through participation in debates, discussions, and representations to communicate the arguments for gender equality. The articulation of feminist consciousness by women’s associations added a new dimension to the debate over the Hindu Code Bill.

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5 THE HINDU CODE BILL IN THE POLITICAL SPHERE

T

he discourse over the Hindu Code Bill in the public sphere was closely interlinked with the discourse in the political sphere. Public debates in newspapers and women’s conferences gathered momentum since the formation of the first Hindu Law Committee in 1941 and became very intense when the second Hindu Law Committee toured India in early 1945. The debate in the public sphere influenced the political debate to a considerable extent and at the same time, the public debate was also influenced by the opinion leaders in the political sphere. The present chapter pays attention to the debate in the central legislature over the Hindu Code Bill from the time when it was referred to the Select Committee in April 1948, till the time the four acts, i.e., the Hindu Marriage Act, 1955, Hindu Succession Act, 1956, Hindu Minority and Guardianship Act, 1956 and Hindu Adoptions and Maintenance Act, 1956 were passed. It examines the debate in the legislature as a reflection of the realities of a society in transition characterized by sharp ideological polarities. When the Bill was introduced, India was on the threshold of her Independence. The prime concern at that point of time was to develop the nation. Development planning was at the forefront of the political agenda of the day. The national policymakers sought to introduce a mixed economic system with a sizeable presence of State in the ‘core’ sectors of the economy, in major and heavy industries, and also in physical and social infrastructure. The State was expected to promote ‘growth with social justice’. This view was already endorsed at the national level by various committees set

Debating Patriarchy. Chitra Sinha. © Oxford University Press 2012. Published 2012 by Oxford University Press.

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up in the pre-Independence period including the National Planning Committee formed under the aegis of the Indian National Congress in 1936, the Bombay Plan, 1944 and in the Statement of Industrial Policy of 1945. The Indian State was thus poised to assume a proactive role in the economy. Such a paradigm was influenced by the prescriptions of noted development theorists like RosensteinRodan, Arnold Harberger, Richard Eckaus, Alan Manne, James Mirrles, Oskar Lange, Ragner Frisch, and Jan Tinbergen, among others. Culture, being an aspect of superstructure, was relegated to the background. Revisiting to the Hindu Code did not seem to be an urgent concern among many among the legislators. This is one of the reasons why a Bill of such crucial nature failed to get the importance that should be accorded to it. The discussions were often relegated to the end of the day or the end of the session. Within the overriding concerns for rapid economic growth, industrialization, poverty eradication and the desire to attain self reliance was also the necessity to establish progressive social norms. The effort on part of the Indian National Congress as the political party in power was to establish secularism as the bedrock for the Indian socio-political ethos. In this context, secularism meant benevolent neutrality to all religions by treating them equitably. The Constitution of India recognized the freedom of individuals to practice religion as a private activity. In a way, the secularization of Indian society was an attempt to reduce the sphere of influence of religion and instead put emphasis on modern scientific thought processes. One of the principal tools through which this new social paradigm of individual freedom and religious equality was sought to be implemented was the Hindu Code Bill aimed at putting Hindu society firmly on the track to modernization. The modernization project would have been more forceful had the social norms been reshaped and reconfigured over a Uniform Civil Code covering the people of all religions. But this was not done, due to political compulsions arising out of a potential backlash to the popularity of the ruling party. The stir caused by the Bill in the political sphere was unprecedented, though there has been almost no detailed historical account of the event. On one side of the spectrum were liberals like Gandhi, Nehru and Ambedkar, on the other side ranged a very powerful segment of the legislature, including Rajendra Prasad, and Acharya J.B. Kripalani within the Congress Party, and Shyama Prasad Mukherjee and other leaders of the Hindu Mahasabha.

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THE LIBERAL PERSPECTIVE When the French Revolution created perhaps the most evocative and enduring of all slogans comprising three powerful words— liberté, egalité, fraternité—the energy embedded in these words was perceived to have had universal resonance. The ideal of liberty and equality went far beyond the boundaries of France, reflecting universal human aspirations. It has thereon remained democracy’s abiding goal.1 Political and social thought in Europe, ever since the French Revolution, centered on the question of equality and the individual, manifested and mediated through democracy and the rapidity of historical change. In India, the liberal perspective was provided by the political leadership of the day under Mahatma Gandhi, Jawaharlal Nehru and B.R. Ambedkar.

Gandhi on Women’s Legal Rights Gandhi realized that despite the high place accorded to women in the Hindu scriptures, the reality of Indian society in the nineteenth and twentieth centuries was quite different. Hindu women were treated as adjuncts to the males in Indian society, primarily as bearer and rearer of children.2 Being a great mobiliser of masses for the goal of winning freedom, he was aware that popular movements would not succeed unless women were involved in large numbers, cutting across classes and castes, breaking the age-old shackles of customs and religious practices. His strategy of mass mobilization thus assigned a new role to women in the socio-political transformation of Indian society. As a matter of fact, Gandhi was instrumental in bringing Indian women out of their protected environment to join the Indian National Movement, thereby revolutionising the Indian socio-political scene. Mahatma Gandhi’s speech on August 11, 1921, urging women to join the non-cooperation movement, illustrates his perception of women’s role in the freedom movement. Mahatma Gandhi wrote during the sacrificial fire lit on July 31, 1921 in Bombay in memory of Lokmanya Tilak,

1 Harbans Mukhia, ‘Liberal Democracy and its Slippages’, Economic and Political Weekly, Volume XXXVII, No. 3, January 19, 2002, p. 197. 2 Judith Brown, Gandhi: Prisoner of Hope, Oxford University Press, 1992, p. 208.

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it was right and wise on the part of the sisters who gave their costly clothing. Its destruction was the most economical use you could have made of it, even as destruction of plague-infected articles is their most economical and best use. It was necessary surgical operation designed to avert more serious complaints in the body politic.3

He applauded the crucial role played by women in the nationalist struggle, emphasizing the eternal purity of women, The women of India have during the past twelve months worked wonders on behalf of the motherland. You have silently worked away as angels of mercy. You have parted with your cash and your fine jewellery; You have wandered from house to house to make collections. Some of you have even assisted in picketing. Some of you, who were used to fine dresses of variegated colours and had a number of changes during the day, have now adopted the white and spotless but heavy khadi sari reminding one of a woman’s innate purity. You have done all this for the sake of India, for the sake of the Khilafat, for the sake of the Punjab. There is no guile about your word or work. Yours is the purest sacrifice untainted by anger or hate. Let me confess to you that your spontaneous and loving response all over India has convinced me that God is with us. No other proof of our struggle being one of self-purification is needed than that lacs of India’s women are actively helping it.4

Gandhi’s conception of women’s role in the nationalist struggle may be found in his following appeal to women, Having given much, more is now required of you. Men bore the principal share of the subscriptions to the Tilak Swarjya Fund. But completion of the Swadeshi programme is possible only if you give the largest share. Boycott is impossible unless you will surrender the whole of your foreign clothing. So long as the taste persists, so long is complete renunciation impossible. And boycott means complete renunciation. We must be prepared to be satisfied with such cloth as India can produce, even as we are thankfully content with such children as God gives us. I have not known a mother throwing away her baby even though it may appear ugly to an outsider. So should it be with the patriotic women of India about Indian manufactures. And for you only hand-spun and hand-woven can be regarded as Indian manufactures. During the transition stage you can only get coarse khadi in abundance. You may add all the art to it that your taste allows or requires. And if you will be satisfied with coarse khadi for a few months, India need 3 M.K. Gandhi, Women and Social Injustice, Third Edition, Navjivan Publishing House, Ahmedabad, 1947, p. 160. 4 Ibid., p.160.

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not despair of seeing a revival of the fine rich and coloured garments of old which were once the envy and the despair of the world. I assure you that a six months’ course of self-denial will show you that what we today regard as artistic is only falsely so, and that true art takes note not merely of form but also of what lies behind. There is an art that kills and an art that gives life. The fine fabric that we have imported from the West or the Far East has literally killed millions of our brothers and sisters, and delivered thousands of our dear sisters to a life of shame. True art must be evidence of happiness, contentment and purity of its authors. And if you will have such art revived in our midst, the use of khadi is obligatory on the best of you at the present moment.5

Gandhi glorified the dimension of motherhood: The economic and the moral salvation of India thus rest mainly with you. The future of India lies on your knees, for you will nurture the future generation. … The destiny of India is far safer in your hands than in the hands of a government that has so exploited India’s resources that she has lost faith in herself. At every one of the women’s meetings I have asked for your blessings for the national effort, and I have done so in the belief that you are pure, simple and godly enough to give them with effect. You can ensure the fruitfulness of your blessings by giving up your foreign cloth and during your spare hours ceaselessly spinning for the nation.6

Social legislation for the institution of women’s rights had the support of Gandhi, even though he thought it to be a rather minor step towards the emancipation of women. He wrote: I am uncompromising in the matter of women’s rights. They [women] can no longer be treated as dolls or slaves without the social body remaining in a condition of social paralysis…. That is why I take every occasion to protest in no uncertain terms that so long as women in India remain ever so little suppressed or do not have the same rights [as men] India will not make real progress.7

The correspondence between Dr S. Muthulakshmi Reddy and Mahatma Gandhi is useful in understanding Gandhi’s position on legal reforms for women. Though the original letter of Dr S. Muthulakshmi Reddy, well known social worker and a 5

Ibid., p. 161 Ibid., pp. 161–2. 7 Pushpa Joshi, Gandhi on Women, Centre for Women’s Development Studies, New Delhi, 1988, pp. 17–18. 6

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champion of women’s rights, could not be traced, parts of it was reproduced in Gandhi’s response in Young India on May 23, 1929. Reddy was quick to point out that while educational reforms suggested by Gandhi could in the long run contribute to social and gender justice, there were deeper problems that required tackling core issues of gender biases in a patriarchal society of India. She asked, ...if education is really going to bring in its train social reform, better sanitation, and improved public health, it is going to achieve this result only through the education of our women? Under the present social system, don’t you think that very few women are given sufficient opportunities for education, full development of body and mind, and self-expression? Don’t you think that their very individuality is being recklessly crushed under the burden of customs and conventions? Does not early marriage strike at the root of all development—physical, intellectual, and even spiritual? Do not the pangs of child-wives and child-mothers, and the unmitigated sorrows of our widows and deserted wives demand an immediate remedy?8

In no uncertain terms, Muthulakshmi challenged Gandhi’s model of reforming a society embedded in stark inequalities in gender rights. Is the Hindu society justified in tolerating or conniving at a custom that in the name of religion condemns innocent young girls to a life of degradation and vice? Don’t you think that, as the result of social tyranny, Indian women, with a few exceptions have lost the spirit of strength and courage, the power of independent thinking and initiative, which actuated the women of ancient India, such as Maitreyi, Gargi and Savitri, and even today actuate a large number of our own women belonging to the liberal creeds like the Brahmo Samaj, Arya Samaj, Theosophy, which is only Hinduism freed of all its meaningless customs, rites and rituals?9

Muthulakshmi also pointed out that nationalist parties like the Congress had a key role to play in the conflict. She added, If the members of the Congress believe that freedom is the birth-right of every nation and individual, and if they are determined to achieve that at any cost, should they not first liberate their women from the evil customs and conventions that restrict their all-round healthy growth, which remedy lies in their own hands? Our poets, saints and sages have sung in the same 8 9

M.K. Gandhi, Women and Social Injustice, pp. 8–9. Ibid.

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tune. Swami Vivekananda has said, that country and that nation which do not respect women have never become great, nor will ever be in future. The principal reason why your race is so much degraded is that you had no respect for these living images of Shakti. If you do not raise the women who are the living embodiments of the Divine Mother, don’t think that you have any other way to rise.10

Muthulakshmi then urged Gandhi to tell the male members of Indian society to ensure gender justice within the family. Mahatma Gandhi responded in Young India on May 23, 1929, Dr Muthulakshmi has a perfect right to expect Congressmen to shoulder this responsibility. Many Congressmen are doing great work in this direction individually as also corporately. The root of the evil, however, lies far deeper than would appear on superficial observation. It is not the education merely of women that is at fault. It is the whole of our educational system that is rotten. Again it is not this custom or that which needs condemnation, it is the inertia which refuses to move even in the face of an admitted evil that needs to be removed.11

Gandhi’s letter clearly brought out his lack of support for reform from above by a segment of Indian population. He highlighted the elitist nature of India’s women’s movement and urged them to be inclusive in their efforts: And may I suggest to Dr Muthulakshmi that the few educated women we have in India will have to descend from their Western heights and come down to India’s plains? … These questions of liberation of women, liberation of India, removal of untouchability, amelioration of the economic condition of the masses and the like resolve themselves into penetration into the villages, reconstruction, or rather reformation of the village life.12

Thus, Gandhi’s concern was entire India, including its vast rural population. He felt that reform had to be carried out at the grassroot level, and reform from above would not reach the vast majority of the country. He was of the view that legal reforms only touch the upper crust of the society. He wrote in Young India on October 17, 1929, 10

Ibid. Ibid., pp. 10–11. 12 Ibid. 11

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I do not need to be a girl to be wild over man’s atrocities towards woman. I count the law of inheritance among the least in the list. The Sarda Bill deals with an evil far greater than the one which the law of inheritance connotes. But I am uncompromising in the matter of woman’s rights. In my opinion she should labour under no legal disability not suffered by man. I should treat the daughters and sons on a footing of perfect equality. As women begin to realize their strength, as they must in proportion to the education they receive, they will naturally resent the glaring inequalities to which they are subjected.13

However, legal reforms did not contain the power to transform society. Social transformation needed social reform. In the context of legal reforms for women, Gandhi did admit its necessity, but it was to him only one of the issues facing Indian women. He termed legal reform as a ‘mere palliative’. But to remove legal inequalities will be a mere palliative. The root of the evil lies much deeper than most people realize. … Whilst, therefore, I would always advocate the repeal of all legal disqualifications, I should have the enlightened women of India to deal with the root cause. Woman is the embodiment of sacrifice and suffering, and her advent to public life should, therefore, result in purifying it, in restraining unbridled ambition and accumulation of property.14

Gandhi’s conceptualization of the emancipation of Indian women was intricately linked to the growth of the nationalist movement. In fact, there is no doubt that Gandhi’s call to women to join the national movement had a dramatic impact. The physical presence of women in the non-cooperation movement added a new dimension to the freedom struggle.15 At the same time, it has also been pointed out that Gandhi thought of women’s participation in the freedom movement in a limited sense, trying to hold women’s discontent within the nationalist cause. Geraldine Forbes has termed this as ‘the politics of respectability.’16

13

Ibid., p. 12. Ibid. 15 Reba Som, ‘Jawaharlal Nehru and the Hindu Code: A Victory of Symbol over Substance?’, in Modern Asian Studies, Volume XXVIII, No 1, 1994, pp. 165–94. 16 Geraldine Forbes, ‘The Politics of Respectability: Indian Women and the Indian National Congress’, in D.A. Low (ed.), The Indian National Congress: Centenary Hindsights, Oxford University Press, New Delhi, 1988. 14

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Jawaharlal Nehru and the Hindu Code Bill Jawaharlal Nehru was another uncompromising champion of women’s rights. To Jawaharlal Nehru, Gandhi’s contribution lay in transforming the nationalist movement into a social revolution. He wrote, …a remarkable thing happened. Our women came to the front and took charge of the struggle, …here were these women of the upper or middle classes, leaving sheltered lives in their homes—peasant women, working class women, rich women—pouring out in their tens and thousands in defiance of government order and police lathi.17

Under the leadership of Gandhi and Nehru, the All-India Congress Committee constituted study groups on women issues in the twenties and early thirties. In the Karachi session of the Indian National Congress in 1931 a resolution was adopted on fundamental rights which incorporated the concept of equality of sexes. The National Planning Committee constituted by Subhash Chandra Bose under the chairmanship of Jawaharlal Nehru prepared a report on the women’s question highlighting many of the modern-day concepts of equality of sexes and gender justice. The liberal perspective thus had gained prominence by the 1940s. Nehru was supportive of the Hindu Code Bill as he expected it to promote integrated development of Indian society. He wrote in The Discovery of India, When the British came … the Hindu Law was largely custom, and as custom changed the law also was applied in a different way. Indeed, there was no provision of Hindu Law which could not be changed by custom. The British replaced this elastic customary law by judicial decisions based on old texts, and these decisions became precedents which had to be rigidly followed. That was in theory, an advantage, as it produced greater uniformity and certainty. But, in the manner it was done, it resulted in the perpetuation of the ancient law unmodified by subsequent customs.… Change could only come by positive legislation, but the British Government, which was the legislating authority, had no wish to antagonize the conservative elements on whose support it counted. When later some powers were given to partially elected assemblies, every attempt to promote social reform legislation was frowned upon by the authorities and sternly discouraged.18 17

Jawaharlal Nehru, The Discovery of India, Oxford University Press, 1992, p.

18

Ibid., p. 212.

41.

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To begin with, Nehru was confident that the Hindu Code Bill could be pushed through in the Parliament. This is evident in his assertion in the Parliament on December 19, 1949, I do not wish the House to think in the slightest degree that we consider that this Hindu Code Bill is not of importance, because we do attach the greatest importance to it, as I said, not because any particular clause or anything, but because …. If society has to advance, there must be this integrated advance in all fronts.19

Nehru spoke in support of the Bill in Parliament that ‘It should be clearly understood that this is one important measure to which the government attaches importance and on which it will stand or fall.’20 However, in the debate on the Hindu Code Bill in 1951, Nehru did not have the necessary support to push through the Bill. As the debate progressed, it became clear to Nehru that his world view was completely out of tune with most of the parliamentarians of the day. In a letter to Vallabhbhai Patel, Nehru admitted, What is important is the difference in outlook between the Parliament as a whole and me. They put up with me because of their friendliness towards me and their affection and a certain past record and habit of doing so. But they go further and further away from me in mind and heart. This produces unhappiness all around and frustration and work suffers.21

There is much evidence throughout the protracted debate that Nehru’s social ideology differed significantly from his fellow parliamentarians. On the issue of divorce, for instance, Nehru failed to find any reason to put a halo around a sacramental marriage and call it inviolable, as he remarked, ‘Does it mean that it is a sacrament to tie up people who bite, who hate each other, who make life hell for each other?’22 He also condemned the tendency

19 Constituent Assembly of India (Legislative) Debates, Volume VII, Part II, December 19, 1949, pp. 784–5. 20 B.R. Ambedkar, ‘Resignation Statement’, Writings and Speeches, Volume XIV, Part II, compiled by V.S. Moon, Education Department, Government of Maharashtra, Mumbai, 1989, p. 1326. 21 Jawaharlal Nehru to Vallabhbhai Patel, February 21, 1950 in Valmiki Chowdhuri (ed.), Dr. Rajendra Prasad: Correspondence and Select Documents, Volume XII, January to June 1950, Allied Publishers, New Delhi, 1989. 22 Jawaharlal Nehru’s speech in Lok Sabha Debates, 1955, Volume IV, Part II, May 5, 1955, pp. 7954–8.

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in the Parliament to denigrate Western culture and civilization.23 Besides ideological differences, Nehru was unable to cope up with the practical difficulties posed by the Hindu Code Bill. It was clear to him that the Hindu Code Bill was extracting a political cost. The Hindu Mahasabha exploited the situation and mobilized public opinion against the Bill. On December 12, 1949, a demonstration of over five hundred people gathered outside Parliament House chanting ‘Down with the Hindu Code Bill’ and ‘Down with the Nehru Government’. For Nehru, it was a revealing experience.24 Nehru’s reaction and response to the proceedings of the debate on Hindu Code Bill indicate a sense of helplessness. Even at the time of dropping the Bill on September 25, 1951, the Prime Minister said, ‘It is not necessary for me to assure the House of the desire of government to proceed with this measure in so far as we are concerned we consider this matter as adjourned till such time as the next opportunity—I hope it will be in this Parliament-offers itself.25 Both Gandhi and Nehru were of the strong conviction that the initial steps in this direction could be provided by putting in place appropriate legal structures. The Hindu Code Bill was to them a way of breaking the embedded inertia of Hindu society. Despite showing a strong desire to push through the Hindu Code Bill, Nehru’s decision to drop the Hindu Code Bill in September 1951, at a time when the Bill was reaching its final phase after a prolonged debate, was and has been criticized by many, most notably by B.R. Ambedkar, the then Law Minister, and undoubtedly the prime spirit behind the Hindu Code Bill.

Role of B.R. Ambedkar B.R. Ambedkar is considered a stout and strong protagonist of the Hindu Code Bill. To the orthodox, his background of mahar caste was enough to create apprehensions towards him and his efforts to reform Hindu Law. The zeal of Ambedkar was interpreted as a crusade against upper caste bastions and a continuation of his efforts to criticize numerous deficiencies in Hindu socio-religious

23

Ibid., in speech on May 5, 1955. Jawaharlal Nehru, Letters to Chief Ministers 1947–64, Volume I, letter dated December 15, 1949. 25 Reba Som, Nehru and the Hindu Code, pp. 185–6. 24

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practices in many of his well researched writings.26 His public burning of the Manusmriti in 1927 had also antagonized the conservative segment of the upper caste Hindu community. The more Ambedkar tried to push the Bill, the more the opposition tried to prevent the Bill from passing. As the debate on the Hindu Code Bill progressed, it was anti-Ambedkarism, which began to affect its passage. Such was the intensity of the opposition to Ambedkar that Nehru thought of reshuffling the Cabinet and putting in place a more congenial Law Minister.27 In fact, during 1955 and 1956, when the Hindu Code Bill was enacted in fragments, Ambedkar’s absence has been cited as a reason for the smooth passage of the Bill.28 Indeed, the zeal with which Ambedkar tried to push through the Hindu Code Bill was remarkable, so much so, that the Hindu Code Bill became intrinsically associated with his name. Ambedkar has gone on record as saying that he considered his work on the Hindu Code Bill to be as important as his participation in the formulation of the Indian Constitution. The Constitution views the citizen as a secular subject, and the rights of citizenship are restricted to the spheres of public politics and economic activity. But Ambedkar insisted that it was not sufficient to recognize the right to political and economic equality in a ‘secular’ space defined in the Constitution, as long as inequalities among citizens, especially and particularly on the basis of caste, continued to be entrenched in the religious life of the Hindu majority. He saw the Hindu Code Bill as a basis for the reform of Hindu society. Although he certainly did not believe that this reform could be carried out through legislative fiat alone, he however felt that it was crucial to lay down some minimum principles within the legislative framework of personal laws.29 For this purpose he conducted a study of the Mitakshara and Dayabhaga 26 See, for instance, Valentine Rodrigues (ed.), The Essential Writings of B.R. Ambedkar, Oxford University Press, New Delhi, 2002, Chapters 2, 10, 12, 19, 20, 27, and 28. 27 Dhananjay Keer, Dr. Ambedkar: Life and Mission, Popular Prakashan, Bombay, 1971, p. 426. 28 Reba Som, Nehru and the Hindu Code, p. 188. Of course, some parliamentarians felt that the most important reason was that the controversial clauses were already removed from the Bill, and there was nothing to object. See speech by Sardar Hukum Singh, Lok Sabha Debates, Volume V, Part II, pp. 7253–4. 29 Valentine Rodrigues, Essential Writings, Chapter 33, p. 495.

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systems of Hindu laws governing marriage, divorce and inheritance, as well as looking at the practices of smaller communities within the Hindu fold. He considered that the most progressive principles in the existing Hindu codes should be incorporated into the ‘modern’ Hindu Code Bill.30 As Law Minister in the Constituent Assembly, Ambedkar had to carry forward the unenviable task of putting through the Hindu Code Bill in Parliament. He considered the Hindu Code Bill as ‘an extraordinary event in the history of the Parliament.’ In the words of B.R. Ambedkar: The Hindu society has always believed that law making was the function either of God or the Smriti and the Hindu society had no right to change the law. That being so, the law in Hindu society has remained what it was for generations to come. Society has never accepted its own power and its own responsibility in moulding its social, economic and legal life. It is for the first time we are persuading Hindu society to take this big step.31

On another occasion, he stated: Our legal system has sometimes been called the envy of the world.… Our penal system could hardly be improved upon. But where we lag has been in social legislation. Now we have taken that up. In one joint Bill, we will revolutionise life. Hindu Code Bill will be 100 times more beneficial to India than Constitution. We are building a new society here and we are doing it by justice and law.32

There is no doubt that Ambedkar was attempting to wage a fight to ensure justice to the oppressed in Hindu society, including women and the lower castes, the dalits. Ambedkar’s considerable research convinced him that caste and gender oppression are interrelated in the Indian society. This was long before Susie Tharu and Tejaswini Niranjana put forth their theoretical framework of the overlap in oppression patterns that prevent one from viewing 30

Ibid., p. 496. Constituent Assembly of India (Legislative) Debates, Volume IV, April 9, 1948, p. 3653. 32 James A. Michener, The Voice of Asia, reproduced in Changdeo Bhavanroa Khairmoday, Dr. Ambedkar and Hindu Code Bill, Sugawa Prakashan, Pune, 1999, p. 12. 31

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women’s oppression in isolation. He stressed, ‘To leave inequality between class and class, between sex and sex which is the soul of Hindu society untouched and to go on passing legislation relating to economic problems is to make a farce of our Constitution and to build a palace on a dung heap.’ 33 Such strong remarks on deficiencies of the Hindu society and religion were bound to invite a backlash from the puritans and traditionalists. As Duncan M. Derrett observed, ‘A number of pamphlets were written against the Code. Attention was drawn to the qualifications and social origin of the Third Draft’s virtual author.’34 He was called the second Manu, and, his caste affiliations were often the centre of criticism of upper caste Hindus who opposed the Bill.35 With the support of women legislators, Ambedkar’s fight for the Hindu Code Bill was essentially a fight from within, to ensure social justice from within the legislature. Though Ambedkar and Nehru were both pursuing a common goal, there were several ideological differences. The differences among Jawaharlal Nehru and B.R. Ambedkar are crucial to understand the liberal perspective on the Hindu Code Bill, and lacuna that lay within the broad contours of the term ‘liberal’.

Jawaharlal Nehru and B.R. Ambedkar: Uneasy Alliance over the Hindu Code Bill Ambedkar, in his own admission, did not share a very amicable relationship with his colleagues in the Congress Party. In fact, it is said that he was surprised that the Law Ministry was offered to him in 1947. His tenure as Principal, Government Law College in Bombay during 1935 to 1938 and his vast knowledge of the Indian legal system made him ideally suited for the post and his diligence and oratory skill were a bonus to put through the series of socioeconomic legislations as envisaged by the Congress. Both Ambedkar and Nehru shared the same liberal perspective, and tried to push through the Hindu Code Bill, although they had frequent differences of opinion, emerging basically from a divergence of perspectives. 33

B.R. Ambedkar, ‘Resignation Statement’, p. 1326. Duncan M. Derrett, The Hindu Law: Past and Present, A. Mukherjee, Calcutta, 1957, p. 70. 35 Ibid., p. 71. 34

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In this context, it is worth quoting the correspondence between Nehru and Ambedkar, which though not central to the debate over Hindu Code Bill, clearly illustrates the separate mindsets of Nehru and Ambedkar. The correspondence also indicates the uneasiness in the relationship between Nehru and Ambedkar. The correspondence gives vital clues on the debate over the Hindu Code Bill.36 New Delhi 27 April 1948 My dear Dr. Ambedkar, On my return to Delhi this afternoon I read a report of your speech recently delivered in Lucknow before the UP Scheduled Castes Conference. I must confess that I was surprised and distressed to read this speech. It raises certain rather fundamental matters about the functioning of the Cabinet and its members. There is an attack in it on individuals as well as on the Congress as such, and an appeal for bringing about divisions in the Congress ranks. There is a further appeal for the functioning of a purely communal political organization which, I should have thought, is opposed to the recent declaration of policy by the government in regard to such communal political organizations. 2. You are further reported to have said as follows: There have been a large number of fifth columnists in our ranks and only when we expose them and strengthen ourselves will we be able to replace Nehru and Patel in a matter of days. 3. There are many other passages of your speech as reported which seem very odd to me as coming from a Cabinet Minister. But I shall not quote them here. 4. We have welcomed your co-operation in the government and in the Constituent Assembly and attached value to the work you have done. I am not aware of any occasion when any of my colleagues or I have done anything which might be termed discourtesy to you. I had hoped that this cooperation would grow and that we would continue to benefit by your advice and work. 5. Your speech, however, is such that I can hardly imagine any Cabinet Minister being responsible for it. It is an attack on the Congress which is responsible for the present government, 36 The following two letters are taken from Durga Das (ed.), Sardar Patel’s Correspondence 1945–50, Volume VI, Navjivan Publishing House, Ahmedabad, 1973, pp. 328–32.

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it is an attack on the Premier of the United Provinces and the UP Government, and it is an attack on me as Prime Minister and on the Deputy Prime Minister. You state clearly, if you are reported aright, that it is your purpose to push us out. Your reference to fifth columnists presumably means our colleague Jagjivan Ram as well as those who think with him. If these views had been expressed by you in private to us, the situation would have been embarrassing enough for both you and me. It is doubly embarrassing when public statements have been made. If ministers feel and speak in this way there is no Cabinet responsibility left. The Prime Minister might as well shut up shop. 6. I am not writing any more to you on this subject except to point out to you the serious consequences of the speech you are reported to have made. There can hardly be any co-operation or common working on that basis. I should be grateful to you if you let me know if the report is a correct one. Yours sincerely, Jawaharlal Nehru

A selection from Ambedkar’s lengthy response is given below: New Delhi, 28 April 1948 My dear Pandit Nehru, Please refer to your letter of 27 April 1948 in which you have expressed your reactions to my speech at the conference of the Scheduled Castes Federation held in Lucknow on 25 April. I have not seen any newspaper report of my speech. I don’t know which newspaper report you have seen. I am, therefore, unable to check up the report point by point. Unfortunately, my speech at the conference was not a written speech. It was delivered extempore. But I can give you the points I made in my speech. They were all intended to meet the criticism that has been levelled against me by some of my own followers on various counts. I. Why I am silent ever since the departure of the Cabinet Mission. II. Why I joined the Congress Government. III. What I propose to do in the future. In reply to I, I said: The Scheduled Castes Federation demanded political safeguards—the most important of which was separate electorates. If the results of the primary

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elections were taken as the test, there was no doubt that the whole of the Scheduled Castes were behind this demand. Notwithstanding this, our demand was turned down by the Cabinet Mission. This was because of two reasons (1) we were a weaker party as compared with the Muslims and the Sikhs, and (2) we were divided in our ranks which contained many fifth columnists. The decision of the Cabinet Mission seemed to wipe out the Scheduled Castes as a separate political entity and that without political safeguards the Scheduled Castes appeared to me to be doomed. There was a complete darkness before me. That is the reason why I have not made any statement. In reply to II, I said: It is true I have been an opponent and a critic of the Congress. At the same time I don’t believe in opposition for the sake of opposition. There ought to be the spirit of co-operation where we can gain something by co-operation. I thought there would be no use fighting with the Congress. I, therefore, decided to co-operate and by co-operation we got some safeguards in the Constitution which we might not otherwise have got, and gave some instances to substantiate my argument. With regard to my joining the Cabinet, I said there were two reasons which prevailed upon me to accept the offer—(1) the offer was without any condition, (2) one could serve the interests of the Scheduled Castes better from within the government than from without. I said that the Scheduled Castes had no fear of bad laws being made to their prejudice. What they had to fear about was bad administration. This bad administration was due to the absence of men belonging to the Scheduled Castes in the administration. The administration was unsympathetic to the Scheduled Castes, because it was manned wholly by Caste Hindu officers, who were partial to the Caste Hindus in the villages, who exacted begar from the Scheduled Castes and practised upon them tyranny and oppression day in and day out. This tyranny and oppression could be averted only if more of the Scheduled Castes could find a place in the Civil Service. This can be done better by being inside the government rather than remaining outside. In regard to III, I said: There is no use joining the Congress. Safety lies in having two parties. There must be an opposition to criticize government. Government may otherwise easily become a dictatorship. It is a house which is burning. There are many inside the Congress who want to form an opposition, the necessity of which they feel quite strongly. Secondly, the Congress itself is getting divided. The Socialists have gone out of it. How big they will grow one cannot say now. There are possibilities of their getting quite big. Hereafter there will be two parties (1) Congress, and (2) Socialists—and the question is not whether—we should join the Congress. The question is whether we

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should join the Congress or the Socialists. I said that my advice is that you should form a third party so that the Scheduled Castes may be able to hold the balance and thereby obtain bargaining power. There is no use joining any political party as its mere camp-followers. If it gives anything, it merely gives office. It cannot give power. Your conference has just now passed a resolution condemning the Pant Government for giving you only 10 per cent reservation in the Services when on a purely population basis you are entitled to something like 22 per cent. The reason why Mr. Pant does not give you your full quota is because for his majority in the UP Assembly; he is not dependent upon you. When he becomes dependent upon you—and that can be only when you are united into a separate organization worthy of negotiation—you can demand 22 per cent, and he will have to give it to you. I then turned to the question of unity between the Scheduled Castes and the so-called Backward Classes. This I did at the request of the leaders of the Backward Classes who were present at the conference. I said it was a pity that the two classes whose needs were common did not join together. The reason was that the Backward Classes did not like to associate themselves with the Scheduled Castes, because they were afraid that such an association will bring themselves down to the level of the Scheduled Castes. I said that I was not anxious to establish inter-dining and inter-marriage between the Scheduled Castes and the Backward Classes. They may well remain separate social entities. There is no reason why they should not join hands to form a political party to remove their backward condition. I pointed out how the Scheduled Castes have improved their condition by playing their part in the politics of the country, and there is no reason why the Backward Classes should not do the same. I said that the Scheduled Castes and the Backward Classes form the majority of the population of this country. There is no reason why they should not rule this country. All that is necessary is to organize for the purpose of capturing political power—which is your own because of adult suffrage. People do not seem to buck up courage because they are overwhelmed by the belief that Congress Government is there for ever. I said this is a wrong impression. In popular democracy no government is permanent and not even the government established by the two of the tallest Congressmen, Pandit Jawaharlal and Sardar Vallabhbhai Patel. If you organize you can even capture that government. I have given you as detailed an account and as accurate an account of what I said as I can recall. You will allow me to say that I never speak in a desultory manner. Whether I make a written or an oral speech, I always speak on some definite points. These are the only three points on which I spoke at Lucknow…. 37 37

Ibid.

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The relationship between Nehru and B. R. Ambedkar worsened in September 1951 when Nehru faced fierce opposition to the Hindu Code Bill both within the Congress Party and outside, and decided to postpone the passage of the Hindu Code Bill in Parliament. He realized the political consequence of the Hindu Code Bill, in terms of its loss of popularity of the Congress, as the country was heading towards the first General Elections in 1952. Nehru wanted to play safe and thus wanted to shelve the Bill for the time being. In the words of Ambedkar, This being the last session (September-October, 1951) in Parliament, Cabinet had to consider whether the Hindu Code Bill should be got through before the Parliament ended or whether it should be left over to the new Parliament. The Cabinet unanimously decided that it should be put through in this Parliament. So the Bill was put on agenda and was taken up on the 17th September, 1951 for further clause by clause consideration. As the discussion was going on, the Prime Minister put forth a new proposal, namely, the Bill as a whole may not be got through within the time available and that it was desirable to get a part of it enacted into law rather than the whole of it to go to waste. It was great wrench to me. But I agreed.38

Ambedkar was further dismayed when Nehru proposed in Parliament that the entire Bill might be dropped—including the sections on marriage and divorce. He thus decided to resign from Parliament. Ambedkar and Nehru’s role in the context of the Hindu Code Bill is also clearly brought out through their correspondence in August–October, 1951. On August 10, 1951, Ambedkar wrote to Nehru, My health is causing a great deal of anxiety to me and to my doctors. They have been pressing that I must allow them a longer period of about a month for continuous treatment and that such treatment cannot now be postponed without giving rise to further complications…. I would therefore like to give the Hindu Code Bill a higher priority by taking it up on the 16th of August and finish it by the first week of September if opponents do not practice obstructive tactics. You know the importance I attach to this measure and would be prepared to undergo any strain on my health to get the Bill through.

Nehru replied on the same day, ‘About the Hindu Code Bill, you know that we have a good deal of opposition not only inside the House but 38 Resignation Speech of Dr. Ambedkar in Selected Writings of Dr. Ambedkar, Volume XIV, Part II, p. 1132.

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outside. With the best will in the world, we cannot brush aside this opposition and get things done quickly.’ In the same letter, regarding preponing the discussions on the Bill to the middle of August, Nehru stated, ‘For us to try to hasten it and bring it earlier would needlessly give a handle to the opponents and create trouble.’ On September 27, 1951, Ambedkar wrote to Nehru that as the Hindu Code Bill has been shelved, there was no reason for him continuing as a Law Minister and that he wanted his resignation to take effect immediately. In response, Nehru replied on the same day, I can quite understand your great disappointment at the fact that the Hindu Code Bill could not be passed in this session and that even the Marriage and the Divorce part of it had ultimately to be postponed. I know very well how hard you laboured at it and how keenly you felt about it. Although, I have not been intimately connected to the Bill, I have been long conceived of its necessity and I was anxious that it should be passed. …I think it (Hindu Code Bill) is intimately connected with any progress on any front that we desire to make.39

On October 1, Ambedkar in his letter to Nehru expressed his wish to make a Statement on the floor of the House on October 6, 1951. On October 3, 1951, Nehru replied that as he also wants to make a statement in the House following Ambedkar’s statement, he would like to have a copy of Ambedkar’s statement. Ambedkar and Nehru exchanged three brief letters on October 4, mainly on the date on which Ambedkar was to make a statement.40 Ambedkar finally resigned without making a statement as he was not allowed to do so till the end of the session. However, he released the copy of his resignation statement to the Press and also distributed copies among members of Parliament. His resignation statement explains the reasons behind his resignation, which included the poor treatment to backward castes by the government, injustice done to him by the Congress Party and the Prime Minister, disagreements over the foreign policy of the country, and the treatment accorded to the Hindu Code Bill. The decision of the Prime Minister to drop the Bill, even in its truncated form was inexplicable for Ambedkar, 39 The Parliamentary Debates, Volume XVI, Part II, September–October, 1951, pp. 4730–7. 40 Ibid.

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I was stunned and could not say anything. I am not prepared to accept that the powerful members of the Cabinet wanted precedence for their Bills. I am unable to understand how the Benaras and Aligarh University Bills, how the Press Bill could have been given precedence over the Hindu Code even in its attenuated form. It is not that there was no law on the Statute Book to govern the Aligarh University or the Benaras University.

He added, ‘I got the impression that the Prime Minister, although sincere, had not the earnestness and determination required to get the Hindu Code Bill through’.41 Ambedkar’s resignation statement indicated his anguish against the opposition to the Bill within the Congress, he stated, ‘In regard to this Bill (Hindu Code Bill) I have been made to go through the greatest mental torture. The aid of party machinery was denied to me.’ He added, ‘I expected a party whip on the time limit on speeches… but such a whip was never issued.’42 The Times of India on October 1, 1951 termed the resignation of Ambedkar as ‘End of Chapter’. The report observed, Dr. Ambedkar’s resignation from the Cabinet does not surprise those aware of his anxiety to get the Hindu Code Bill placed on the statute book by the present Parliament. That Dr. Ambedkar should have looked up on his association with the Bill as being of greater importance than his work in framing the Constitution is also understandable. Being the robust realist as he is, he must realise that he under-rated the opposition on this measure.43

On October 2, 1951, The Times of India added, ‘The fluctuating fortunes of the Hindu Code, which has been shelved for the present, has evidently depressed the law Minister, who had attached greatest importance to its expeditious passage.’44 It may also be observed that the approaches of Nehru and Ambedkar on the issue of the Hindu Code Bill were significantly different. Ambedkar’s basic argument was that Hindu society was static in the sense that the law machinery has been left to the gods, and both sudras and women were exploited by the static 41 Statement by Dr B.R. Ambedkar in explanation of his resignation to the Cabinet, New Delhi, October 10, 1951 in Selected Writings, p. 1133. 42 Ibid., pp. 1134–5. 43 ‘End of Chapter’, The Times of India, October 1, 1951, p. 4. 44 ‘Dr. Ambedkar—Statement likely on Resignation’, The Times of India, October 2, 1951, p. 5.

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strictures. The law thus required change.45 On the other hand, Nehru’s optimistic belief was that Hindu society was traditionally dynamic and vibrant, and would be able to absorb the changes and integrate it without much disruption. He was confident that even in its fragments, the Bill would be of symbolic value with far reaching consequences on the Indian mindset. Thus, while Ambedkar was dejected at the failure to pass the Hindu Code Bill in 1951 and was convinced that the Bill was ‘killed and died unwept and unsung’, Nehru was more hopeful that gradually the Hindu Code Bill would be passed, paving the way for further reform.

Contribution of Women Legislators The debate in the political sphere also saw notable contributions by women legislators, thereby projecting the feminist consciousness of the women leaders of 1940s and 1950s. The participation of women legislators in the crucial discourse over the Hindu Code Bill is significant to understand the political participation of women. In a society where cultural, educational and other structural constraints have crowded women out of the political sphere, were a handful of women leaders of the political elite able to make any distinctive social contribution? Or did they merely propagate the views of the prominent men behind their political presence? Studies in the area of women’s political participation and their contribution towards gender equality in the West revealed that the political presence of women has been helpful, when such women were either part of the feminist movement or deeply imbibed with feminist ideals.46 In Parliamentary debates, the feminist legislators presented a unified and liberal perspective. The major contributors in the debates were Hansa Mehta, Renuka Ray, G. Durgabai, and Sucheta Kripalani. Their speeches in the legislative debates on the Hindu Code Bill clearly brought out the feminist consciousness prevalent among women’s organizations in late colonial India. Hansa Mehta, a legislator from Bombay and an active member of the AIWC, for instance, expressed the feminist viewpoint, when she 45

See Reba Som, Nehru and the Hindu Code, p. 186. An anthology of essays by women scholars and activists exploring the broad diversity of women’s contribution to political sphere can be found in Cathey Cohen, Kathleen B. Jones, and Joan Tnonto (eds), Women Transforming Politics: An Alternative Reader, New York University Press, New York, 1997. 46

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stated that, ‘though we47 are not quite satisfied with it, it will be a great landmark in the social history of the Hindus.’48 Representing the views expressed by the women’s movement, she stressed the need to attain equality of individuals, particularly in the light of the objectives enshrined in the Constitution. In the context of a daughter’s share in her father’s property, she echoed the demands of the organized women’s movement, including the AIWC, It is also argued that a daughter gets her share from her father as well as from her husband, while the man does not get anything from his wife. We have already proposed that is the women’s organizations have said that the husband can also inherit the property of his wife in the same way that the wife inherits the property of her husband. In the Indian Succession Act the provision for the inheritance of husband is already there and I think we shall do well to copy that provision.49

She strongly refuted the widely shared argument that a daughter’s share in landed property would lead to fragmentation of land. She asked, But why is this argument trotted out in the case of a daughter’s inheritance? The same thing applies if a man has more than one son; if he has, say, four or five sons the land has to be fragmented; why is the argument not trotted out then, and only trotted out when the question of daughters inheriting the property comes up? The better thing would be that there should be law against fragmentation and the property should be sold if it goes below the prescribed limit. Or there is another alternative and that is collectivisation of the land.50

With regard to marriage, Hansa Mehta endorsed the principle of monogamy as all civilized communities had adopted the principle of monogamy. She observed, Disrespect for women and all the atrocities that we hear of perpetrated on women are I think due to the fact that this principle of polygamy exists. If we had monogamy, I do not think that women would have been abducted, married off or other things would have happened to them. This is a very wholesome principle and I hope the House will accept it.51 47 Emphasis added, to show that women leaders identified themselves as part of the feminist movement. 48 Constituent Assembly of India (Legislative) Debates, Volume IV, April 9, 1948, p. 3642. 49 Ibid., p. 3643. 50 Ibid. 51 Ibid., p. 3644.

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Stating that the proposed divorce law stipulated five years as the minimum time for desertion, Hansa Mehta observed that three years may be the right time for childless women. She was critical of the Hindu Code Bill for not incorporating the mother as the natural guardian of the children, suggesting that the mother deserved to be a co-guardian of the children with the father. Hansa Mehta was also critical to the proposed Code on adoption: With regard to adoption, I think the whole chapter should be scrapped. We are a secular State. We want to be a secular State. Adoption in Hindu law is for religious purposes. Why should a secular State have anything to do with a religious custom? What we are concerned with is whether adoption which is for religious purposes should be recognised by the State for purposes of inheritance. We say that it should not. If a child is adopted—whether it is a boy or a girl—we would like a daughter also to be adopted—if a child is adopted not for religious purpose, but for real purpose, i.e. that the parents want a child, then that child should have the same rights as the natural child. But, if there is adoption for religious purposes, only then I think that adoption should not be recognised for purposes of inheritance.52

Sucheta Kripalani, parliamentarian from Delhi and a leader in the women’s movement in the country observed that much of the controversy over the Hindu Code Bill is clouded by irrelevant issues. She felt that those who tried to oppose the Hindu Code Bill by bringing to the fore banal arguments committed a grave injustice to their own religion. According to Kripalani, Hindu religion was primarily concerned with the spiritual emancipation of the individual, his progress towards self-realization. The self-fulfilment of an individual stood in need of certain moral and spiritual principles such as truth, justice and non-violence. She differentiated religion from customs by observing that social arrangements, institutions and customs that had evolved through the ages were not religion. She observed: The Hindu Code does not seek to disturb the Hindu religion but to amend and modify the Hindu civil law. The law has changed from time to time. It is different from religion and has never been unchangeable and static. The authors of the Dharmashastras changed the law from time to time according to the consciousness of the community at the time. The right to make changes was well recognised by the Dharmashastras. The Hindu law became rigid and static only after the advent of the British. As the Bill was 52

Ibid., p. 3645.

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in front of the House and before the country for about the last ten years, and thousands of copies of this draft Bill have been circulated, we need not wait but should implement the Hindu Code Bill.

She presented the feminist perspective towards attainment of justice and equality in the following manner, ‘Whatever be the field of our life when a radical change is sought to be made, we are bound to come against some vested interests and some established custom. There is always bound to be a cry against such changes. If we give up reform on that score then we shall never change anything.’53 She added that there was strong support for the Bill, There is also a very good group—an intelligent, thoughtful group— supporting the measure too. And that intelligent, thoughtful group does not consist of women alone. We have a lot of brothers with us in this measure. We have also seen in history in other countries whenever a radical change was introduced, whenever any reform was sought to be brought into being, it was a small conscious minority that forms up the cause, that educated the public, that did propaganda and after some time public opinion veered round it. So I am sure though it may be that there is a volume of opinion against the Hindu Code, if what we are trying to do is just and right, I am more than sure that public opinion will come with us.54

Sucheta Kripalani observed that the marriage and the succession law has raised heated controversy. Commenting on the Hindu Code Bill, she reiterated the feminist viewpoint, We are pledged to give women equal status in society. We are pledged to do away with all sex discrimination and this pledge does not start from the time when we bring into effect the new Constitution. I would like to remind you that in the Karachi resolution these pledges are embodied. After that when we accepted office, then also we again reiterated that there shall be no discrimination on the basis of sex. If men and women are to work equally, if they are to function as equal citizens of the State, if they are to fulfil their obligations towards the state, how can we have such discriminatory rules in the matter of property rights of women? Unless woman gets her full share of property you cannot expect her to fulfil her obligations to the State. Of course whenever we make any changes, established custom and 53 Constituent Assembly of India (Legislative) Debates, Volume IV, April 9, 1948, p. 3753. 54 Constituent Assembly of India (Legislative) Debates, Volume II, Part II, March 1, 1949, p. 896.

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established rules are disturbed. It causes a certain amount of dislocation and inconvenience, but we have to tolerate them and take them as inevitable.55

G. Durgabai, a parliamentarian from Madras termed the Hindu Code Bill as permissive in nature, ‘They impose no sort of obligation or compulsion on the orthodox section of the Hindus. Their only effect is to give the growing and claimant body of Hindus, men and women, the freedom to live a life which they wish to live without in any way affecting or infringing their liberty to adhere to the old ways.’56 She felt that the Hindu law as it existed was rigid without being certain. Many judicial decisions and precedents had outlived their usefulness. She noted that the objection that the Hindu Code Bill had a revolutionary character was mainly voiced by vested interests. G. Durgabai refuted the fragmentation argument of the opponents of the Hindu Code Bill, stating that consolidation could be secured by special laws and the argument on that score could not be advanced that the daughter should not get a share of the property. Arguing against the logic in favour of limiting the estate in the case of women as they were incapable of managing it and also likely to be duped or exploited, she pointed out that on the contrary, there were scores of instances where women have proved better managers than men. If lack of literacy was the argument for giving women absolute property, she observed that three out of four men continue to be illiterate. She supported the Dayabhaga system of inheritance by citing examples of the system operating successfully in Bengal and in South India. Renuka Ray, noted legislator from West Bengal and feminist leader, observed on the floor of the Parliament that since 1931, there has been an insistent demand throughout the country regarding women’s rights, the need for the removal of legal disabilities of women and the need for a uniform and comprehensive code of legislation. As piecemeal legislation was leading to anomalies in law and because of this insistent demand, the government of that day was forced and compelled to appoint the Hindu Law Committee. She observed that the nationalist press of the country did not give that opposition much space for their debate and the press was overwhelmingly tilted towards the liberal view. Yet the opposition did bring out many pamphlets ‘abusing our national leaders, not 55 56

Ibid., p. 898. Ibid., p. 991.

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even sparing our beloved leader Mahatma Gandhi. There was a weekly paper produced called ‘Hindu’ in which these Bills were attacked and they were attacked on the basis that the national leaders of this country were behind it and it was due to their advice and under their influence that this was being done.’57 Ray was extremely critical of the opponents of the Hindu Code Bill, This opposition that has reared its head and which is similar in character as before, has resorted to many devices. It has resorted to various types of tactics. The House is aware of the fact that the Governor-General’s name was used and this was found to be a fraud. Only two or three days ago in a newspaper in Calcutta I saw the name of Shyama Prasad Mookerjee after that of two or three other well-known oppositionists and I was a bit surprised until I saw in small brackets the words (of Uttaraparah). These are the devices, these are the tactics that are being used by the opposition.58

She added, I would further say that there are some people who have asked ‘How is it that telegrams, circulars, and posters are being displayed by the opposition all over—at least in Delhi—and that M.C.A’s are being flooded with wires; and how is it that those who are in support of the measure do not do the same?’ Sir, those who support this Code are also representatives of social welfare organizations; they are people who work for the good of this country. Today when there is a national emergency in regard to any funds that they have, they would not consider it right and proper that they should use such funds in sending wires and letters when they can be used for the rehabilitation of refugees. One wire to M.C.A’s in this House costs Rs. 165. With that money for three months a refugee woman can be given vocational training for rehabilitation. Do you want that these wires should be sent to you? …If we have not issued posters and circulars and wires it does not mean that the demand for the changes does not continue to exist.59

Thus, most women leaders of the day brought forth the contradictions in the debate in fairly clear terms. The Constituent Assembly debates show that women leaders had a lucid understanding of the conflicting views in Indian society. It also 57

Constituent Assembly of India (Legislative) Debates, Volume IV, April 9, 1948, p. 3645. 58 Ibid., p. 3646. 59 Ibid., p. 3647.

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indicates that the women were not mute spectators to the debate but actively participated in the process of family law formation in India. Presenting a unified view, they gave strength to the liberal perspective and helped in the emergence of feminist consciousness in India.

THE ORTHODOX CHALLENGE While the liberal and secular forces were in control of the political arena of the country in the 1940s under the leadership of Gandhi and Nehru, on the ideological plane, a parallel movement of traditional orthodoxy was gaining in strength and momentum. The Hindu nationalist movement strongly opposed the Hindu Code Bill. Such parallel movements, as Clifford Greetz has shown, need to be studied as reaction to the modernization project along Western lines.60 The reactionary forces operated at several levels, which included the ideology of the Arya Samaj in terms of a reinterpretation of tradition, the emergence of Hindu Mahasabha in response to perceived threats from similar Muslim fundamentalist positions, and the preparedness and militancy propagated by the Rashtriya Swayamsevak Sangh (RSS).61 The presence of contradictory forms of social ideology was mirrored in the legislature. As a consequence, any intrusion of tradition came to be astutely defended in the legislative sphere. Freedom and equal rights of women could not remain immune to these undercurrents. Religious sentiments coupled with a strong undercurrent of patriarchy that cut across political parties made any progress with the Hindu Code Bill especially difficult. The debate was essentially ideological and in the case of the Hindu Code Bill did not assume any political garb, as was the case with postIndependence debates on women’s rights during the 1970s and 1980s. Rather, the communicative process was a tussle between gender and patriarchy on the one hand over the issue of gender equality, and liberal modern elite versus the strongly entrenched patriarchal orthodoxy on the other, over their competing notions of culture, nationalism and the vision of independent India. 60 Clifford Greetz, The Interpretation of Culture, Basic Books, New York, 1973, p. 230. 61 The ideological backbone of RSS was provided by V.D. Savarkar’s book Hindutva: Who is a Hindu? published in 1923.

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Opposition to the Hindu Code Bill in the Legislature There was a sizable section of conservative hardliners within the Congress Party, notable among them was Rajendra Prasad. He entered into detailed correspondence with Jawaharlal Nehru, trying to persuade him not to go through with the legislation.62 The correspondence between Jawaharlal Nehru, Rajendra Prasad and Sardar Vallabhbhai Patel clearly bring out the differences of opinion that existed within the Congress Party. Between July 21, 1948 and July 31, 1948, Nehru and Rajendra Prasad entered into an engaging correspondence that clearly revealed the ideological polarities within the Congress Party. On July 21, 1948, Rajendra Prasad wrote to Jawaharlal Nehru: New Delhi, 21 July 1948 My dear Jawaharlalji, A deputation of eight members of the Select Committee on the Hindu Code led by Bakshi Tek Chand have just seen me. They have represented that the proposed Code introduced some very fundamental and far reaching changes in the Hindu Law as it has been accepted by the vast majority of Hindus up till now. The Bill has never been considered at a meeting of the Party and it was put up for second reading on the last day of the last session during the last hour and was referred to a Select Committee. Fifteen members out of 20 have been attending the meetings of the Select Committee and the majority of them who came to see me feel that it would not be proper to rush this Bill through the next session of the Assembly. Apart from the merits of the measure and apart from the considerations above mentioned, my feeling is that a measure of such far reaching consequences about which there is much difference of opinion, need not be passed by the Constituent Assembly sitting as a legislature. In the first place, the present legislature is a make-shift arrangement. The Constituent Assembly was never intended to be a legislative assembly, but to avoid fresh elections it was converted into a legislative assembly. Whatever safeguard there was against hurried legislation on account of a second chamber has also been removed. The Committee, which held an enquiry, recorded a good deal of evidence and that evidence was overwhelmingly against the proposals generally which now constitute the clauses of the present Bill. The evidence has been analysed in great detail in the note of dissent by Dr. Dwarka Nath Mitter. The matter has never 62 The correspondence between Nehru and Rajendra Prasad was handed over to Vallabhbhai Patel by Nehru. It is published in Durga Das (ed.), Sardar Patel’s Correspondence 1945–50, pp. 399–403.

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been placed before the electorate and I am not aware that any propaganda has been carried on to convert the bulk of the people in favour of the provisions of the Bill. In these circumstances, it seems to me that it would not be in keeping with the fundamental principles of a democratic Assembly to undertake legislation for effecting basic changes in the personal law of a vast majority of the inhabitants of this country which has been accepted and followed ever since the days when the Smritis were composed or at least when the commentaries were written on them. I would, therefore, suggest that this subject might very well form one of the items of our election manifesto and the electorate should be consulted at the next election before it is placed before the legislature. In any case, the present Constituent Assembly sitting as a Central legislature should not take it up and rush it as was done at the time of the second reading. I have given my own reactions to the situation that has arisen and would request you to consider the question from this aspect. Yours sincerely, Rajendra Prasad63

Jawaharlal Nehru replied on July 22, 1948: New Delhi, 22 July 1948 My dear Rajendra Babu, Thank you for your letter of 21 July about the Hindu Code. I do not exactly remember whether this matter was put up formally before the party or not. But I have a distinct recollection of repeated discussions about it in the course of the last year and a half. Few contemplated pieces of legislation have been so thoroughly thrashed out and publicly discussed than this Bill. It has been considered by the Cabinet on more than one occasion. It has been considered by the Executive of the party certainly. There is no doubt that a large section of orthodox opinion opposes it. There is also no doubt that the so-called socially progressive Hindus are anxious and eager for it. The matter has been pending for a very long time and has been repeatedly postponed. At last an assurance was given that it would be introduced in the last session and taken up in the next. The Bill was introduced. To try to smother it now or postpone it would create some kind of a crisis and the reputation of the Congress would undoubtedly be affected. As it is, it is being stated widely that the Congress is a reactionary and a very conservative body now, which dares not face any radical change. We are called not only socially reactionary but a police State which suppresses civil liberties and the like. In this context if we push 63

Ibid., pp. 401–2.

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out [this] Bill, we shall not only confirm this growing conviction of our excessive conservatism in India but would also go down in the mind of foreigners outside India. I confess I do not see how in these circumstances we can go back on what we have done after much argument and debate and not proceed with the Bill. Apart from these considerations, the question is one of merit. The Cabinet has declared itself in favour of it twice at least. Personally, I am entirely in favour of the general principles embodied in it. Are we therefore to give up something that we consider right and on which so much labour has been spent, because some people object? Yours sincerely, Jawaharlal Nehru64

Rajendra Prasad replied on July 24, 1948: New Delhi, 24 July 1948 My dear Jawaharlalji, I have received your letter dated 22 July 1948 about the Hindu Code. I do not propose to say anything about the merits of the measure but that is not because there is nothing to be said, but I consider at this stage any such discussion unnecessary, if not irrelevant. I am definitely informed the matter has never been considered by the Party. The contemplated legislation is based on the report of the Committee which recorded evidence, and that evidence is overwhelmingly against the proposals contained in the Bill. Whatever discussion there has been was while the Committee was going round and recording this evidence. I am not aware that the Bill, as proposed, has been subjected to any critical examination by the public at large on any extensive scale. It is admitted that it contains proposals for very fundamental changes. I do not think the Congress, the AICC or the Working Committee has ever given any thought either to the subject or to the provisions of the Bill. It has certainly never been included in our election manifesto. The present Constituent Assembly is hardly a body to take up this fundamental legislation for the simple reason that it has not been convened to deal with personal law of any particular community but for drawing up a Constitution for the State. I do not know when and where we made a promise or gave an assurance about the Bill. If any assurance was given to the Constituent Assembly by the Government, the objection to the competence of these bodies to take up this matter at this time and during this session without any reference to the electorate and 64

Ibid., p. 402.

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the country at large remains. I know that there are some people who want it but if you were to take the people at large, I am afraid, a vast majority would not go for it. So it is not so much giving up something which you consider right because some people object to it but forcing something on the people at large because some people consider it to be right and want it. Apart from these considerations, I might also mention that it is bound to rouse bitter feelings and will have repercussions which may affect the chances of the Congress at the next election. I am not impressed by the fact that some people regard the Congress as reactionary or conservative nor do I think that anything and everything which some people regard as reactionary or conservative is necessarily bad and everything that they call progressive is necessarily good. We have to weigh how it will be received by the vast bulk of Hindu public against what foreigners outside India and those who call themselves ‘progressive’ would say. My feeling is strong on the point that we shall be riding roughshod on the cherished sentiments of the vast bulk of our people and that without having any warrant or sanction from them simply because we consider certain things to be right. The question of civil liberties stands on altogether a different footing. I do not think there will be any difference on that point as between conservatives and progressives. In fact, most of the so-called ‘conservatives’ are more concerned about it than the so-called ‘progressives’. I will, therefore, request you to consider it and not allow a major crisis to be created in the Party and in the country on a matter which cannot on its merit claim the priority that belongs to so many other things which we have not been able to take up. In any case, there has got to be prolonged discussion and this short session which we are going to have may not have the necessary time for it. Yours sincerely, Rajendra Prasad65

Jawaharlal Nehru responded on July 27, 1948: New Delhi, 27 July 1948 My dear Rajendra Babu, I have just received your letter of 24 July about the Hindu Code. I really do not know what I can do in the matter. The Bill is before the Assembly and it is for the Assembly to consider it and decide this way or that way. It is not being hurriedly put before the Assembly. The Cabinet has considered it on at least two, if not more, occasions and you yourself say the matter is one 65

Ibid., pp. 403–4.

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on which there is deep feeling. It is for this reason that this has been kept pending for a long time and references have been made to all public bodies interested in it. It has been discussed in the Press. It is perfectly true that the AICC or the Working Committee have not considered it. Nor is it in the election manifesto. Normally such matters of legislation have not been considered by the Working Committee or the AICC. Considering that this question has been before the country for the last two or three years, if members of the AICC or the Working Committee wished to consider them, they could have certainly done so. This applies to the party too. which has been watching every stage of this legislation, and yet did not consider it worthwhile to discuss it at a formal party meeting when any member could have brought it forward. The matter will no doubt come up before the party in some form or other. On previous occasions when similar matters came up before the party, the general rule followed was that there should be no party mandate and members should be free to speak or vote as the liked. It is for the party to decide what they will do in this matter. At this stage even the Cabinet cannot thus go back on its decisions unless the party so directs them. Yours sincerely, Jawaharlal Nehru66

On July 31, 1948, Rajendra Prasad wrote to Sardar Vallabhbhai Patel: New Delhi, 31 July 1948 My dear Vallabhbhai, I am enclosing a statement which I have sent to the Prime Minister with a request that it should be read at the meeting of the party when it considers the Hindu Code Bill. Yours sincerely, Rajendra Prasad67

Enclosure The Bill codifying the Hindu law is now before the Constituent Assembly sitting as legislature. Apart from the merits of the measure there are certain aspects which require consideration. The Bill embodies the 66 67

Ibid., p. 404. Ibid., pp. 399–400.

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recommendations of a committee which went round the country and recorded evidence. That evidence is overwhelmingly against many of the most important recommendations of the committee. It is true that the progressive elements in the country have supported it but the entire population will be affected by its drastic provisions which introduce fundamental changes in the personal law of the Hindus as it has been prevalent in the different parts of the country. There is a large section which under the same law is governed in many matters by a customary law. That section is equally affected by the Bill. The question is whether the present Constituent Assembly, sitting as the Central legislature, combining the functions both of the Legislative Assembly and the Council of State, should take up and pass such a controversial measure to which very large sections of the people directly affected are opposed. As stated above, the evidence recorded by the committee, whose report is the basis of this Bill, was overwhelmingly against its most important proposals. The Bill has not been circulated for public opinion by the Assembly. The Bill was taken up on April 9, 1948. That day happened to be the last day of the session and that hour was practically the last hour of the session. As was to be expected, it was referred to a Select Committee, which has met and whose report may come up before the next session of the Assembly, commencing on August 9. The Assembly too is hardly competent to deal with such a fundamental matter. It was elected for the special purpose of framing the Constitution of India and naturally the electorate had only the framing of the Constitution before it, when it elected its representatives. By a makeshift arrangement, the Assembly, so elected, has been converted into a legislature, combining in it the function both of the Legislative Assembly and the Council of State, thus doing away with such safeguard as a second chamber may provide against hurried and hasty legislation. The matter is of fundamental importance to everyone who is governed by the Hindu law. It substitutes for the concepts and the reasons underlying that law, new concepts and new ideas, which are not only foreign to Hindu law but may cause disruption in every family. Such a proposal has never been placed before the electorate, which has never had an opportunity to express itself on it. Whatever discussion on the merits of the measure has taken place will, on an analysis, be found to consist of progressive elements being in favour and the vast bulk of the Hindu mass opposed to it. No serious or widespread effort appears to have been made to educate and instruct the masses of people in favour of the proposed measure. Its passage, therefore, will be tantamount to forcing a measure of a most fundamental character, introducing basic changes in their personal law, on the Hindus in furtherance of the progressive ideas of a small, if not a microscopic minority, and all this is to be done without reference to

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the electorate and by a legislature, which is competent only for drawing a Constitution but not elected with a view to effecting amendments in the personal law of the largest community in the country. There is, besides, no such urgency about the matter. The Hindus have put up with their personal law for a long time and may well wait till the new Constitution comes into force. It is not a long way off when the electorate may be given a chance by the parties participating in the election to express itself on it. The Assembly will be taking a great responsibility in passing such a measure in the circumstances stated above. Rajendra Prasad, 31-7-48

The correspondence between Nehru and Rajendra Prasad is crucial in understanding the ideological polarities within the Congress. It not only made the debate over the Hindu Code Bill more vibrant, the debate was freed from dictates of the Congress Party and shifted to an ideological plane. The role of Sardar Vallabhbhai Patel is worth mentioning. He was opposed to the Bill, but openly did not state anything against Nehru, given the closeness of their relationship. However, in April 1949, he disallowed time in the Parliament for discussion on the Hindu Code Bill stating, ‘The Government does not propose to ask for any more days for the Hindu Code. It is unnecessary waste of time.’68 Also opposed to the Bill were Acharya J.B. Kripalani, who was drifting away from Nehru since 1930s and Deputy Speaker, Ananthaswamy Aiyyanger, who was instrumental in sabotaging Ambedkar’s efforts with the Hindu Code Bill. Then there was a faction of parliamentarians belonging to the Hindu Mahasabha, including, among others, Shyama Prasad Mukherjee, N.C. Chatterjee who opposed the Bill tooth and nail on the ground that it disrupted the very foundations of Hindu religion.

Nature of Orthodoxy in Legislative Debates Legislative debates provided a very clear representation of the interplay of these conflicting pushes and pulls within the Indian society. It is indeed instructive to examine the communicative process of the legislature, clearly bringing out the feminist consciousness 68

1949.

Constituent Assembly of India (Legislative) Debates, Volume III, April 5,

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of people’s representatives in a democratic framework. In order to appreciate the dichotomy in the sphere of feminist consciousness, we also need to explore the liberal and the traditional perspective in the political sphere. The opposition to the Hindu Code was both overt and covert in nature. While the evident opposition to the Hindu Code Bill lay in the participation in the debate on its various aspects of the Hindu Code Bill, the covert ways were more diverse, and included a wide range of arguments aimed at stalling the Hindu Code Bill. From the very beginning of the Parliamentary debate relating to the Hindu Code Bill when it was referred to the Select Committee, one can find enough evidence of obstructing the Bill. The orthodox segment raised various points with regard to the Hindu Code Bill. The objections are categorised and the flavour of the discussions surrounding them is presented below. Lack of Public Opinion as a Reason Against Further Progress of the Bill

The opponents of the passage of the Hindu Code Bill wanted to obstruct the Bill in several ways. One method employed was to cite lack of public opinion in favour of the Bill. This logic was used repeatedly by Rajendra Prasad while urging Nehru to reconsider the need for the Hindu Code Bill in the contemporary context.69 When the discussion on the Hindu Code Bill started, on April 9, 1948, Naziruddin Ahmed, legislator from West Bengal, drew attention to the Note of Dissent by D.N. Mitter in the Report of the Hindu Law Committee. The former observed that the opinion in West Bengal was entirely opposed to the Bill to codify Hindu law, even the Secretary of the Government of Bengal in the Ministry of Law was against it. Thakur Das Bhargava, parliamentarian from East Punjab, pointed out that people were not aware of the implications of the Bill. He stated that only some well educated men were consulted by the members of the Rau Committee and that ‘they have not taken the opinion of the major part of the country. In this there is no question of education. Every mother and father, who fully realises their responsibilities, can give their opinions. Everybody is affected by this, so every 69

Durga Das (ed.), Vallabhbhai Patel’s Correspondence, pp. 399–403.

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person is competent to give his opinion.’70 Govind Das, a Member of Parliament from Central Provinces and Berar, stated, ‘I do not want any legislation to be passed in the House which is against the wishes of the people.’71 Hirday Nath Kunzuru, a Member of Parliament from UP observed, This Bill admittedly has created a great deal of feeling and it would be most undesirable to add to it by restraining the discussion in any way. I think the only way of making every section of the House feel that full opportunity was being given to it to express its opinion on this and to allow the discussion. Whatever our individual views regarding the merits of the Bill before us may be, that should be no ground for opposing the motion of my honorable friend Mr. Naziruddin Ahmad.72 Conspiracy Theory

An interesting angle given by the opposition was that a conspiracy was underway to destabilize Hindu society, and that conspiracy was being hatched by the Congress Government. Babu Ramnarain Singh, legislator from Bihar, stated: It appears that there is a measure called the Hindu Code Bill and a discussion is going on in this House but in fact a conspiracy is being hatched to disrupt the Hindu society. I feel that it is something like a preparation to invade the Hindu society. Nobody can say how long this Hindu Society has lived and flourished in this world. I can say that since the very creation of the world, since the creation of the sun and the moon, since the very creation of the human race the Hindu society has lived and flourished and during all these periods there have been innumerable invasions of all descriptions against this Hindu society, Buddha came first. At one time it looked that Hindu society would be no more but the world Guru Sankaracharya came and exported Buddhism from this country and re-established the Hindu society. Then Islam came. That was also an invasion like Buddhism but it was also a military one but I must say that Islam also failed in this country.73

70 Constituent Assembly of India (Legislative) Debates, Volume II, Part II, February 25, 1949, p. 901. 71 Ibid., February 24, 1949, pp. 861–2. 72 Ibid., p. 836. 73 Ibid., February 25, 1949, p. 912.

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Revised Bill Was Sent to the Select Committee

A section of the legislature alleged that the Law Department substituted the file sent to the Select Committee, and as a consequence, the Bill seen by the Select Committee was not the original Bill. The point was raised by Naziruddin Ahmed, Jaspat Rai Kapoor, parliamentarian from Uttar Pradesh and Thakur Das Bhargava. The substance of their argument was clarified by the Speaker in his intervention on February 17, 1949, What the Select Committee considered was a ‘substitute’ of the original Bill in the form of ‘a revised draft’. Therefore the Select Committee did not consider the Bill referred to it, but ‘a new document’, and the present report of the Select Committee, being a report on a new document, there is no Select Committee Report on the original Bill. The Honourable Law Minister’s motion for consideration of the Bill, as it emerged from the Select Committee, is, therefore, incompetent.74

However, Ambedkar, refuting the allegation, said that the Select Committee had viewed every clause of the original Bill before they went ahead to propose changes in the revised draft. Bill was not Published

V.S. Sarwate, legislator from Madhya Bharat, representing the orthodox view, noted that for the purposes of this Bill the provisions regarding publication have not been satisfied. It was up to the Chair to see that those provisions were observed. Referring to rule No. 20 of Parliament, which said, ‘As soon as may be after a Bill has been introduced, the Bill, unless it has already been published, shall be published in the Gazette.’75 Sarwate pointed out that the Bill was published originally sometime in April 1947 before the Independence Day, and the political structure of India has since changed. B.R. Ambedkar responded by saying that there was never an obligation cast upon this House for circulating any Bill for publication before the House could take the matter into consideration. Ambedkar’s response to the objection raised by Sarwate was, My reply to the point of order raised by my honourable friend is twofold. In the first place, there is never any obligation cast upon this House 74 75

Ibid., p. 918. Ibid., Part II, February 24, 1949, p. 823.

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for circulating any Bill for publication before the House can take the matter into consideration. It is only in special cases, when the House by a resolution or the government by any executive action desire that the Bill is so important that public opinion might be invited; that public opinion is invited. There is no such right, no obligation at all on the legislature or on the government and therefore, from that point of view the point of order is no point of order at all.76

Ambedkar also observed that the operation of this Bill had wilfully been restricted to the provinces of India, and so far as the provinces were concerned, the opinion had been canvassed three times. When the occasion comes for the extension of the Bill to the Indian states, popular opinion from those regions would be elicited. Daughter’s Share in Property

Objections were raised to the proposal contained in the Bill to give the daughter a share in her father’s property. Raising the issue, Govind Das pointed out in his speech on the floor of the House, The other thing which has been mentioned here is in regard to ‘Succession’. It has been stated that we are required to carry out drastic reforms in the law relating to Succession. I agree that there is a great scope of reforms being made in the Succession System. And I also admit that it would amount to the greatest possible injustice being done to the females if they are not conferred upon the right of succession and thus precluded from inheriting the property. The women should be given the right of succession. Now the question arises as to what extent should such right of succession be vested in the females? …according to my viewpoint now when the patriarchal system is in vogue and the girl leaves her father’s house for that of her father-in-law; it would not be proper to give her any share out of the father’s property. In my opinion the daughter-in-law should be given the right to share her father-in-law’s property. As soon as the marriage is consummated, the daughter-in-law should be given the share equal to that of the son. Today the son enjoys the full right, and if any woman becomes widow, she is entitled to the right of maintenance only viz., food and clothing. I am totally against it. Therefore, I would urge that the women should undoubtedly be given the right to share in the property, but that should be restricted to her father-in-law’s property only and not that belonging to her father.77 76 77

Ibid., p. 994. Ibid., March 1, 1949, p. 916.

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Universal Civil Code

There was a strong undercurrent of resentment among the hardliners that only the Hindu Code was being discussed, while the Muslim personal laws remained ignored and untouched. This found visible expression in the repeated proposals for a Uniform Civil Code. The conservatives pointed out that if the Directive Principles of the Constitution were to be followed, then the Hindu Code Bill alone should not be introduced. They argued that a Universal Civil Code applicable to Hindus, Christians, Parsis, Sikhs, Jains, Buddhists, and Muslims should instead be brought in. Laxmi Kanta Maitra, parliamentarian from West Bengal observed, ‘You dare not touch the Muslims but you know that Hindu society today is in such a bad way that you can venture to do anything with it. Only a few ultra-modern persons, who are vocal, but have no real support in the country, are interested in this Bill.’78 V.S. Sarwate, during the debate on Hindu Code Bill on February 5, 1951, observed the need for Uniform Civil Code for all religions in the country. The feeling was reciprocated by Indra Vachaspati, a member of the legislative assembly from Uttar Pradesh, on the same day.79 Lack of Discussion Time in the House

Lakshmi Kanta Maitra observed that for such an important Bill, the time allocated for discussion should be more so that the number of issues could be debated. He pointed out, You know very well how a Bill of this importance and magnitude, a Bill which seeks to regulate the life and conduct of Hindu society was introduced on the last day of the last session; how at the end of the day’s work we sat beyond 5 O’clock for two hours and the honourable Minister for Law was allowed to make a speech committing it to a Select Committee, only three or four speakers, under a rigid time limit were allowed to speak and at 7 O’clock after a short session the motion was carried. Thereafter what happened? It went to the Select Committee. The Select Committee reported on it and on the motion for consideration of that report points of order were raised in this House. I am not going to enter into the merits of those vital points of order. They were disposed of. So great was the impatience that in the last session the honourable Law 78 79

Ibid., pp. 996. Lakshmi Kanta Maitra’s speech in Parliament. Ibid., p. 2366.

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Minister wanted to simply say that the Bill be taken into consideration and there was no speech. It was somehow got into the agenda. Very well it was done. Points of order were ruled out and it was found that it was within the competence of the House to go on with the measure as reported by the Select Committee. Now look at the way in which it is being dealt with now. In the short indulge between the Railway Budget and the General Budget this is sought to be pushed through. There is no seriousness about it. Nobody feels its importance. The country at large is bewildered by the way in which we are dealing with a piece of legislation of this far reaching importance. If you attach real importance to it, if you really mean business, if you want that something should be done by way of revising the Hindu law as it is today, this is certainly not the way to do it. Keep the Bill for a special session. For small Banking Bills and the like you are devoting days and days. That being the case, do you mean to say that a Bill which seeks to regulate the life and conduct of the Hindu community should be dealt with in the haphazard way in which it is sought to be done? I enter my emphatic protest against the way in which this important legislation is being considered. You know how at 3 O’clock yesterday there was the Supplementary Demand for Railways and later in the day the General Budget came in. I wish to submit, Mr. Deputy Speaker that I have not been accustomed to this kind of procedure with regard to Bills of this nature. I ask the old Members of the legislature to recall a single precedent for this.80

Thus, he expressed a concern that adequate attention was not given to a Bill of such crucial significance. Hindu Code Bill is not Hindu Law

The orthodox group in Parliament felt a strong sense of insult that the Hindu customary laws were being modified by a handful of western educated liberal politicians. As Lakshmi Kanta Maitra stated, Whether a system is good or bad, it is for the society to judge; it is not for disappointed or disgruntled persons to judge. But I may say that the one surest proof of its soundness is that it has been able to stand the test of centuries. No system which is intrinsically bad, unsound or unjust can endure for a long time. Hindu law and the Hindu social system governed by it have been able to withstand the shocks and revolutions which have swept over the country during the ages past. Historic cataclysms have swept off the foot of ancient civilization of countries like Greece, Rome, Assyria, Babylonia—which have all crumbled down—whereas Hindu culture or community, which cannot date its origin, still continues to function with all 80

Ibid., p. 1001.

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the vigour and vitality, and I am sure, providence will allow it to function, till we set about to undermine its very foundations, by legislating in these reckless and light-hearted ways. If there was anything essentially weak in the foundations of Hinduism it would not have been able to survive the upheavals that overwhelmed it throughout its long and chequered history.

Maitra emphasized the strengths of the Hindu society: History will tell you how she has shown her wonderful adaptability reflection will reveal to you that the Hindu law has had in it the germs of flexibility and adaptability which has enabled it to adjust itself at all times to the changing needs and to meet the challenges of the times.81

The crux of the argument was that the Code was far from desirable and should not be imposed. Instead, the wonderfully flexible Hindu law should be allowed to evolve. Codification is against the spirit of Hinduism. This may be summarized in Moitra’s own words, ‘Whatever else it may be, and it is not a Hindu Code. It does not breathe the spirit of Hinduism…82 Codification not a Necessity in the Present Society

The patriarchal orthodoxy challenged the Hindu Code Bill, urging the government to examine the opinions of the judges of the different high courts and the district courts. On February 25, 1949, in his lengthy speech, Thakur Das Bhargava mentioned that the Hindu Code Bill will make life difficult for the poor. He stated, Sir, do you think that any poor villager getting about Re. 1 or Rs. 1/8/- a day could go to a district judge without the help of a lawyer? Dr Ambedkar is a lawyer. He wants that this world may be peopled by lawyers alone like me and by nobody else. What would happen to these people? Will they go to a district judge for dissolution of marriage or divorce? (An honourable Member, “Impossible”) And this is not sufficient. Even if he obtains a decree, it should be confirmed by a high court, which so far as Punjab is concerned, to the High Court at Simla. Now, this procedure is unknown to people. It is a great tyranny upon those people. You are legislating for those who live in the Marine Drive in Bombay or in the palaces of Calcutta and Delhi and not for these poor people for whom you have such a soft corner in your heart.83 81

Ibid., p. 1003. Ibid., p. 1005. 83 Ibid., p. 941. 82

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Lakshmi Kanta Maitra stated, They are the people who have to administer the Hindu law. Has the government got a vast volume of opinion embodying the demands from the judiciary that Hindu law require codification and that also in the way in which it is sought to be done? No. Has there been such a general demand from the people who have to guide themselves, guide their lives and conduct by the provisions of this law? Have they demanded it? Has there been that kind of demand?84 Objection Regarding the Provisions on Marriage, Inheritance, and Divorce

The orthodox sections found the proposed reforms to marriage and inheritance laws radical and sweeping. They stated that by giving place to the concept of civil marriage in the Hindu Code, the liberals wanted to give direct encouragement to all manners of moral looseness and lawlessness.85 The conservative segment in the legislature felt that the basic conception of Hindu marriage has suffered the rudest possible shock by introduction into it of the matter of divorce which was held repugnant to Hindu notions of marriage. To quote again from Maitra’s lengthy intervention, Hindu marriage as ought to be known to every one who professes himself to be a Hindu, who honestly takes pride in calling himself a Hindu, as I myself do, is a sacrament and not a civil contract and as such it will not be difficult for him to admit that divorce is absolutely foreign to its concept. Union by marriage, according to the Hindu Shastras, is sacred and absolutely indissoluble.86

Another argument presented against the Hindu Code Bill from the opposition was that it was totally unnecessary to legislate against polygamy. Conservatives, including the Deputy Speaker, Ananthaswamy Aiyyanger felt that polygamy was being replaced by monogamy from within and there was no real reason for replacing polygamy from above, by means of legislation.87 84

Ibid., p. 1005. Ibid., p. 1007. 86 Ibid., p. 1011. 87 See Reba Som, Nehru and the Hindu Code, p. 172. 85

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Lakshmi Kanta Maitra observed, Sir, my honourable sister, Durgabai, said quite rightly, that monogamy should not be opposed. I do not know of any honourable Member in this House who really does not want monogamy. Monogamy every one of us want, not for our mere likes; circumstances have forced us to accept this monogamous marriage. It is a fact. Polygamy has passed away completely from the upper classes of this country not by legislation. That is my main contention. If you want to eradicate a social evil you should work up from within, not from above. If my honourable friends look to the history of this country, they will find my position amply proved. We all know the miseries and sufferings of Hindu widows. There are so many cases of child and young widows which break our hearts or at any rate it ought to break our hearts. In fact, in the past generation, the late Pandit Vidyasagar of hallowed memory was so much moved by it that he got passed the Hindu Widow Remarriage Act. But the country was not prepared for it and what was the result? The Act virtually became a dead letter and has remained so till now. That is bound to be the fate of all social legislation which have not originated from a demand from within the society.88

The Hindu Code Bill proposals on succession aimed at the equality of men and women in property led to a heated debate over the fragmentation of property, which in the semi-feudal state of the economy, implied landed property. It was pointed out by the orthodox sections that, ‘the introduction of women’s share would introduce litigation. There are many opinions that it will lead to excessive fragmentation that will ultimately lead to the destruction of the joint family system among the Hindus.’89 The fact that the Congress Party itself was divided over the Hindu Code Bill, not to mention the Hindu Mahashabha, prompted Rajendra Prasad to point out that there was a procedural lapse on the part of Nehru not to have formally notified the Congress Working Committee. It is also noticeable that to obstruct progressive reforms, both Hindu and Muslim fundamentalists joined hands. The debate on the Hindu Code Bill is replete with speeches by Naziruddin 88 Constituent Assembly of India (Legislative) Debates,Volume II, Part II, March 1, 1949, p. 1008. 89 Shri Naziruddin Ahmed, Constituent Assembly of India (Legislative) Debates, Volume IV, April 9, 1948, p. 3641.

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Ahmed, raising several points against the Hindu Code Bill. The Sikh legislators constituted another unhappy group, as they were unwillingly drawn into the fold of the Hindu Code Bill. Overall, the opposition to the Hindu Code Bill was formidable enough and despite the charisma of Nehru, the zeal of Ambedkar and the support of women legislators, the Bill was dropped in 1951. The thumping victory of the Congress Party in the 1952 General Elections gave the opportunity to Nehru to push the Hindu Code in the form of four separate Acts, to attain what has often been termed as a victory of ‘symbol over substance.’90

90

Reba Som, Nehru and the Hindu Code, pp. 191–4.

6 VICTORY OF SYMBOL OVER SUBSTANCE Final Phase of the Hindu Code Bill Controversy

T

he Hindu Code Bill was shelved in 1951 in the face of bitter opposition both in the public and legislative spheres. Or so it seemed to many commentators of this controversial Hindu law. The opposition to the Bill would have been less intense had it been a mere compilation of scattered rules. The opposition to the Hindu Code Bill was primarily directed against giving a liberal touch to the existing Hindu law which gave far greater rights to women than in the existing statutes. Resentment of such forward looking approach propagated by the Bill came from a wide cross-section of the Hindu society, and the vehemence of the protest had its ripples in the Parliament and within the dominant Congress Party. The resistance to the Hindu Code Bill forced Nehru to look at an extended time horizon for the Bill. By 1951, it became clear to Nehru that the Hindu Code Bill had snowballed into a critical issue and he had not yet received the people’s mandate to lead the nation. With the elections a few months down the line, it was strategic on Nehru’s part to first get the people’s verdict on his role as leader of the nation and then go for the reforms he wanted in the Indian society. The enactment of the Hindu Code Bill was a live issue in the 1952 elections, the first elections of sovereign India. The enactment of the Bill was very much part of the Congress Party’s election manifesto, and a major issue in front of voters in the Allahabad constituency from where Nehru contested. A resounding victory in the elections was what the Congress Party aimed at, and to that end the Bill was an inconvenient agenda to have in the election manifesto. In the Debating Patriarchy. Chitra Sinha. © Oxford University Press 2012. Published 2012 by Oxford University Press.

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run up to the elections, it at times seemed that the Bill was afloat due to Nehru’s insistence, support of women’s organizations that were essentially elite clubs and a handful of loyal liberals within the Congress. After the resignation of B.R. Ambedkar on the issue of the Hindu Code Bill in 1951, it was Nehru, who was seen as the prominent leader supporting the passage of the Bill. At the same time, the Indian society was showing signs of transformation and modernization in the early years of 1950s. The Constitution of India, adopted in January 1950 had laid down the framework for an egalitarian social structure. The promises thrown up by the modern State in the First Five Year Plan beginning 1951 also ignited a sense of optimism, ensuring liberal inroads into the Indian mindset and a willingness to embrace change. As a consequence, the intense acrimony between the orthodox and liberal sections of the society showed signs of moderation. Renuka Roy, while assessing the key issues confronting the Bill in an essay in Pacific Affairs in September 1952 observed that although the Hindu Code Bill was in effect only a mild reform measure, and is not expected to immediately result in a dramatic transformation of the position of women in society, ‘it has become a symbol of progress, and its fate is being watched with great interest in India.’1 While the opposition to the Hindu Code Bill was somewhat blunted by the progressive posture of the State and the growing willingness of society to embrace change, the opposition was not altogether absent. The resistance to the Hindu Code Bill in independent India had the support of several legislators both from within and outside the Congress.2 By that time, it became evident that politically, the Congress was in for a long haul. Thus, although there were many within the Congress who were opposed to the Bill, there was a realization that defying Nehru was not the best strategy of survival in the political arena. A sizeable section of the Congress thus chose to remain silent on the Bill. The mantle of opposition to the Hindu Code thus fell on the Hindu Mahasabha and the Hindu Right. 1 Renuka Roy, ‘The Background of the Hindu Code Bill’, Pacific Affairs, Volume XXV, No. 3, September, 1952, p. 277. 2 The then Indian President Babu Rajendra Prasad, C. Rajagopalachari, Gandhian Vinoba Bhave, socialist leader Acharya J.B. Kripalani objected to the Bill.

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THE HINDU CODE BILL IN THE FIRST GENERAL ELECTIONS OF 1952 Jawaharlal Nehru played a key role in the election campaign of the Congress Party in 1952. In an article that appeared in The Time on January 28, 1952, the enormous nature of Jawaharlal Nehru’s campaign trail was described in the following manner: By plane, ship, train, automobile and bullock cart, India’s Prime Minister Jawaharlal Nehru had been campaigning all over the country, stirring up votes for India’s first general elections. He had travelled 23,000 miles, made as many as 10 speeches a day, addressed 25 million people. In fact, he had been just about everywhere but his own constituency in Allahabad. There is no need to canvas Allahabad, he said rather airily.3

The Hindu Code Bill was a focal point in the elections, more so in the Allahabad constituency from where Nehru was contesting the elections. A sanyasi (holy man) named Prabhudatta Brahmachari emerged from his hermitage to contest Nehru in the elections from the constituency. The Saint commanded huge respect in orthodox religious circles and also within right wing political parties. The sole objective of the political sojourn of the Brahmachari was to bring to the fore the issue of the Hindu Code Bill.4 Prabhudatta was categorical that he was not interested in defeating Nehru, but in defeating the Hindu Code Bill. Embarrassing the Congress on the sensitive issue of the Hindu Code Bill and to build a broader social consciousness against the Bill was his sole agenda. As a matter of fact, Prabhudatta Brahmachari offered to withdraw from the contest if Nehru dropped his support for the Hindu Code Bill. Interestingly, during the entire election campaign, Prabhudatta Brahmachari did not utter a single word, ‘except an occasional loud laugh.’5 He toured his constituency in a 1931 Dodge Sedan, 3

‘Cymbals and Symbols’, Time, January 28, 1952, Vol. LIX, No. 4. Prabhudatta Brahmachari was a worshipper of Goddess Devi and a philosopher and great orator. When he visited Guntur in 1953, after his discourse he was ready to answer the questions of the audience, a young man came forward and asked him why he had contested the election against Nehru knowing that he would be defeated. Brahmachari replied that victory over an insignificant man was not a victory to Nehru. It was a great honor to Nehru to defeat Brahmachari. He also said that a person who tries to wash the sins of people is better blessed than politicians and can serve the people spiritually. 5 ‘Cymbals and Symbols’, Time, January 28, 1952. 4

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accompanied by a troupe of Hindu singers. To the chanting of Hindu psalms, he danced on the platform, rhythmically tapping a pair of small brass cymbals. A disciple then read from a pamphlet he had written. In the run up to the 1952 elections, Prabhudatta issued the following statement: Panditji and myself are standing from the same Constituency, which consists of six tehsils (townships) of Allahabad district and one of Jaunpur district. …I suggest that seven public meetings should be held in these seven tehsils. Panditji and his nominee should first explain the advantages of the Hindu Code. Then myself or my nominee should explain the drawbacks of the Code. Thereafter, votes should be taken in the meetings. Only Hindus should vote in such meetings, as the Hindu Code concerns only them. If the majority is in favour of the Hindu Code, I will withdraw from the contest unconditionally. If the majority is against the Hindu Code, Panditji and his party should end their insistence forever on the Hindu Code. If Panditji, owing to his leadership and powers, is not prepared to accept this proposal, I will continue my candidature.6

Nehru stated in response that, ‘I will get the Hindu Code Bill passed, whether I win or lose my election. I am prepared to fight the election on the issue of the Hindu Code Bill—I can give this in writing to Brahmachariji.’7 The Hindu Code Bill was one of the core issues over which the election in Allahabad constituency was held. As the voters were sceptical in general about the benefits of the Bill, the opposition garnered a lot of support over the Hindu Code Bill. Thus, Prabhudatta Brahmachari gained considerable political mileage from the Hindu Code Bill. By the end of January, 1952, the disturbing news reached Nehru. His only opponent in Allahabad, 52-year- old Prabhudatt Brahmachari, had quietly been gaining support. Hearing that Brahmachariji’s pamphlets had sold 76,000 copies, a worried Nehru rushed back to Allahabad in end January. He assured the voters in Allahabad constituency that, ‘I shall fight to the end for the Hindu Code Bill. No country can dream of progress if it neglects the cause of its womenfolk.’ He added that, ‘Rich people are behind Brahmachariji…. None else but the big 6 John A. Banningham, ‘The Hindu Code Bill’, Far Eastern Survey, Vol. XXI, No. 17, December 3, 1952, p. 176. 7 Ibid.

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black marketeers, moneylenders and landlords who are scared that Congress will soon do away with their feudal possessions.’8 However, as the support for the Brahmachari’s tirade against the Hindu Code had gathered momentum, Nehru softened his position on the Hindu Code and stated that it would be reintroduced in a modified form, keeping sensitive issues out of its purview. The necessity of compromise was thus felt in the Bill’s unhappy fight for survival during the final stages of the 1952 elections. By softening his stance and assuring to tailor the Hindu Code Bill to garner public support, Nehru secured a resounding victory in the Allahabad Constituency. In fact, this compromise by Nehru, immediately before the elections, played a key role in ensuring the emphatic victory of the Congress in the 1952 elections.

THE OPPOSITION AFTER 1952: THE HINDU MAHASABHA, THE JAN SANGH, AND THE RAM RAJYA PARISHAD After the resounding victory of the Congress in the elections of 1952 and the rise to prominence of Nehru within the Congess, the opposition to the Bill in the legislative sphere fell mainly the Hindu Mahasabha, the Bharatiya Jan Sangh and the Ram Rajya Parishad. There was one more Hindu Right Wing party which became prominent in the 1962 parliamentary elections, the Swatantra Party. But by that time the debate over the Hindu Code Bill had died after the passage of the Hindu family laws in 1955 and 1956. Therefore, the Swatantra Party did not directly engage themselves in contesting the Hindu Code Bill initiative of the Congress.

The Hindu Mahasabha The common thread that connected all these parties was their base, in orthodox religious segment of the population. Hindu Mahasabha was the political face of the Rashtriya Swayamsevak Sangh (the RSS), which tried to establish a Hindu rashtra (a Hindu State). The RSS was a social network of organizations that propagated Hindu ideals and felt major threats to Hindu society from nonHindu forces. While the Hindu Mahasabha was a political party, RSS wanted to project themselves as a social organization aimed at the psychological upliftment of the Hindus. Both the Hindu 8

‘Cymbals and Symbols’, Time, January 28, 1952.

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Mahasabha and the RSS were staunch critiques of the Hindu Code Bill. Golwalkar, the RSS leader and also the leader of the Hindu Right of the era, objected to the Hindu Code by observing: In the course of the natural progress of society it so happens that laws are naturally formed and confirmed, and are afterwards recognized by the ruling power. This is the way of progress. The governments’ action should only be one of recognition, not path-pointing. Path-pointers must be personally aloof from mundane matters. They must be men who think, without prejudice, only of the good of the people. In our country in ancient times, men who guided the society were sages and hermits living in the jungles. The kings only enforced their guidance. Today various parties try to foist their own views on the society to mould it according to their own political preconceptions.9

In the Parliament, the Hindu Mahasabha leaders, led by N.C. Chatterjee opposed the Code during 1952–6. While Nehru banned the RSS for spreading communal hatred in 1951, the same treatment was not meted out to the Hindu Mahasabha, who continued to function in the legislature. The support for this political group to a large extent came from the landowning communities, specially in Madhya Bharat (Central India), who were anxious about the land reform measures of the Congress. The party, however, won only three Lok Sabha seats in 1952 and two in 1957.10

The Bharatiya Jan Sangh Another party at the fringe of the political sphere of the 1950s was the Bharatiya Jan Sangh, initiated by Shyama Prasad Mookerjee on October 21, 1951 at Delhi in consultation with the RSS.11 At the time of elections, the BJS often co-operated on issues and debates with the Swatantra Party of Chakravarti Rajgopalachari. Much of its support for the party came from the older ‘service’ organization, the Rashtriya Swayamsevak Sangh or the RSS. Established in Nagpur in 1925, the RSS spread the rhetoric of a ‘glorious Hindu 9 Golwalker’s comments to the press in Nangal, March, 1950. Available at http://www.golwalkerguruji.org. 10 Christopher Jaffrelot, The Hindu Nationalist Movement and Indian Politics: 1925 to 1990s, Penguin, 1999, pp. 110–12. 11 The symbol of the party in Indian elections was the lamp. In the 1952 general elections to the Parliament of India, Bharatiya Jana Sangh had won three seats; Mookerjee being one of the winning candidates.

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past’ combined with distrust and hatred toward other communities. The RSS quickly extended its influence into Hindi-speaking regions; a cadre was established in Banaras in 1931, and by 1940 the organization claimed a nationwide membership of one hundred thousand. Each local group was supposed to meet daily for exercise, marching drills, patriotic songs, and Sanskrit prayers. This training was intended to foster absolute devotion to what was vaguely termed ‘national religion and culture.’ A similar ideology dominated the policy statements of the political offshoot of the RSS, the Jana Sangh, disguised though it was to serve the political agenda. The BJS opposed the Hindu Code Bill, not because it opposed reform (as Swami Karpatri’s Ram Rajya Parishad did), but because of its objection of the interference by a secular state in internal Hindu affairs. The 1951 BJS manifesto was unambiguous on the Hindu Code Bill. It stated: The party holds that social reform should not come as imposition from above. It should work from within the society. Any far-reaching changes as envisaged in the Hindu Code Bill, therefore, should not be made unless there is a strong popular demand for them and a clear verdict is obtained from the electorate.

Its 1951 manifesto contained—in addition to the predictable calls for a ban on cow slaughter and for the promotion of Ayurvedic medicine—criticism of the ‘materialism’ of Western culture and praise of Sanskrit as ‘the repository of national culture’; a decade later its platform continued to extol ‘the age-old scientific principles of social organization.’ The organization won three seats in 1952, including two seats from West Bengal and one seat from Rajasthan. In the General Elections of 1957, the party got four seats, two from Maharashtra and two from UP.12

The Ram Rajya Parishad and the Charisma of Swami Karpatri Ram Rajya Parishad (Ra-m Ra-jya Parishad), which in Sanskrit means the Forum of Rama’s Kingdom, was a traditionalist Hindu party in India. It was founded by Swami Karpatri (1905–1980) in 1948. The Ram Rajya Parishad (RRP) won three Lok Sabha seats in the 1952 elections and two in the 1962 elections. In 1952, 1957 and 1962, it won several dozens of Vidhan Sabha seats all in the Hindi 12

Jaffrelot, The Hindu Nationalist Movement, p. 558.

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belt (northern India), mostly in Rajasthan. The party then turned inactive and was one of the many parties to merge together to form the Bharatiya Jan Sangh. A pupil of the Shankaracharya of Jyotirmath, Swami Brahmananda Swaraswati, Swami Karpatri (1905–1980) was born as Har Narayan Ojha in Pratapgarh, Uttar Pradesh, India. The future Karpatri reputedly left home at the age of seventeen to embark on a spiritual quest that took him to the Himalayas and later back to Prayag (Allahabad), where he was initiated into the Shankaracharya. In the Hindu dashanami monastic tradition, his ordained name as a monk was Hariharananda Saraswati, but he was popularly known by the name Karpatri (he who uses his hand as a food vessel) Swami. In 1948, he founded the Ram Rajya Parishad, a traditionalist Hindu party. Swami Karpatri represented the ultra-orthodox faction of the Hindu right wing politics. Widely publicized activities earned him high regard; as he came to be recognized as ‘the visible manifestation of Shiva.’ His reputation proved useful in his organizational activities, for merchant groups were eager to acquire prestige by associating with the most orthodox teachers. Swamiji was also a highly respected teacher in the Advaita Vedanta tradition of Hindu philosophy. His pupils include Swami Nischalananda Swaraswati, the Shankaracharya of Puri as well as Swami Chinmayananda Swaraswati, the Shankaracharya of Varanasi. Swami Karpatri assumed a prominent position in the tirade of the traditional Hindu socio-religious groups against the Hindu Code Bill.13 In speeches in Delhi and elsewhere, he challenged Ambedkar to a public debate on the new Code. To the Law Minister’s claim that the shastras did not really favour polygamy, Swami Karpatri quoted Yagnyavalkya: ‘If the wife is a habitual drunkard, a confirmed invalid, a cunning, a barren or a spendthrift woman, if she is bitter-tongued, if she has got only daughters and no son, if she hates her husband, (then) the husband can marry a second wife even while the first is living.’14 Karpatri’s early activities included the founding of a journal, Sanmarg (1936), backed by the merchant Mulchand Chopra and 13 See also Ramachandra Guha, India After Gandhi: The History of World’s Largest Democracy, Macmillan, 2007, for the role of Swami Karpatri in opposing the Hindu Code Bill. 14 Ibdi., p. 231.

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edited by Vijayanand Tripathi; later (1941) this became a daily newspaper published from Banaras and Calcutta. Karpatri also championed the revival of large-scale vedic sacrifices, for which he solicited funds from merchants and industrialists. His rigid conservatism was perhaps most evident in his attitude toward the socially oppressed. Swami Karpatri unashamedly argued for the maintenance of the status quo, including the continued ostracism of people at the bottom of the system. Thus, he opposed the opening of temples to untouchables, in accordance with the provisions of the new constitution. When some Harijans entered the premises of Vishvanath Temple in Varanasi, he declared that the idol of Vishvanathji had become devoid of all Divine Virtues and was nothing more than a piece of stone. After this incident, he constructed another Vishvanath Temple in Varanasi. In the Parliamentary elections of 1952, the most successful candidates from RRP were a handful of ex-aristocrats in Rajasthan and Madhya Pradesh, seeking political office in their former domains, who found success by linking their local prestige with the image of the party and its leader. In all, the RRP mustered some two million votes, including 14.2 per cent of the vote in Madhya Pradesh and 9.4 per cent in Rajasthan. Although the RRP continued to contest seats in later elections, it gradually lost popular support even in its early strongholds. During the late 1950s and early 1960s, the RRP contemplated merging with one or more of the other rightist parties—a move that might have strengthened its overall position. The merger talks with the Jana Sangh broke down in 1956 over his insistence that the other party exclude Harijans from membership. In the 1960s, though Karpatri himself managed to remain in the limelight by periodically unpacking the old reliables of Sanatani sentiment; for instance, in 1966 he led 1,25,000 protestors in a march to the Parliament protesting cow slaughter—a demonstration that ended with the torching of vehicles and police firing, the popularity of his party waned.

THE REVIVAL OF THE HINDU CODE BILL AFTER 1952 The early 1950s saw the beginning of the Nehruvian era, as it embodied the spirit of the undisputed leader of the Congress, Jawaharlal Nehru. Yet, in pushing several reforms, Nehru had to wait to gain the necessary political strength. Nehru’s political strength and his ability to implement his vision increased manifold when, in 1952, the Congress Party swept the polls, winning by a

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vast majority. Immediately afterwards, the Hindu Code Bill was brought out of the shelve and Nehru again pressed for the Bill. The clear mandate of the people in the 1952 elctions had strengthened the role of the State in bringing about social change. Though the government continued to pay lip service to Hindu tradition, the forces of modernization were gaining ground, as exemplified by Law Minister Pataskar’s comment during the Lok Sabha debates of 1955: ‘Why is it necessary to go to the length finding out what was stated in certain Smritis two thousand years ago. The ancient law, as it prevailed several centuries back, is not in existence and in no case can it be resurrected.’15

The Passage of the Special Marriage Act, 1954 More than a year after the first general elections, in December 1953, the House of the People (Lok Sabha) initiated the discussion on the Special Marriage Bill. The reason for this delay is not documented. Apparently, the Congress got too preoccupied with major reforms and the Hindu Code Bill had to wait its turn. Although aware of the importance of this Bill for Hindu society, Nehru was pragmatic enough to realize that given the fact that the Bill had many sensitive issues that touched the Hindu conscience, the Bill might best be pushed in instalments. Such an instalment approach was designed to take the bite out of the opposition and reduce the delay of the Bill’s passage. The Special Marriage Bill was aimed at revising and replacing the Special Mariage Act of 1872 and was taken up for discussion at the House of the People (Lok Sabha) on December 14, 1953.16 The Bill tried to introduce a special form of marriage that can be availed of by any person in India and also by all Indian nationals residing abroad. Essentially, this Bill enabled and empowered individuals to marry anyone he/she chose to, overcoming the hitherto unsurmountable barriers of caste and religion. Initially, the Bill was approved and forwarded by the Rajya Sabha, suggesting the formation of a 45-member committee—with 15 members from the Rajya Sabha and 30 members from the Lok Sabha. The reactions to such a move was far from favourable, and it was apparent beyond reasonable doubt that a sizeable majority of 15 16

Lok Sabha Debates, Volume XXVI, No. IV, 1955, Col. 6485. Reported in The Times of India, Dec 15, 1953, p. 8.

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society were less than ready for such a Bill. The degree of animosity faced by the Bill prompted Maulana Azad to comment that the Bill should be taken up in a better atmosphere.17 The Special Marriages Bill was mainly a repeal of the Special Marriage Act, 1872. The Act was reconstructed so as to extend its provisions to all citizens of India, regardless of religion. The Bill was sent to a Joint Committee of both the Houses in December, 1953, under the chairmanship of C.C. Biswas. Supporting the Special Marriages Bill, Prime Minister Jawaharlal Nehru remarked, During the last many years we have been—we, meaning this House and its predecessors—considering this matter in various shapes and at least on two or three occasions I gave an assurance to this House that we will expedite these matters. But, somehow or other, my assurance did not produce much effect on the situation; and, in spite of our wishes in the matter, there was and there has been delay. It is true that in a matter of this kind one cannot rush through and one has to give every consideration to various viewpoints in this House as well as outside. Nevertheless, it is rather unfortunate that there has been such considerable delay. Therefore, it is a matter of peculiar satisfaction to me that we are at last coming to grips with these problems in the shape of this Bill and one or two others that are following.18

He added, Nowadays one should not attach much value to odd customs, it is confusing. Nevertheless, it was always Hindu law and custom which meant that custom was gradually changing Hindu law. That is, as conditions changed customs developed and they affected the law in practice, whatever it might have been in the ancient texts here and there. Of course, so far as the ancient texts are concerned, there are so many of them that one can quote scripture for any argument. Anyhow, the coming in of the British power, as I said, made the whole conception static by codifying it, codifying it with the help of the most conservative sections of the community they could find. Naturally, if you try to go back to the written word, it did not allow all the changes that 17 ‘Motion to Revise and Replace Marriage Bill’, The Times of India, December 15, 1953. 18 Statement in Parliament, 21 May 1954 in Parliamentary Debates (House of the People), Official Report, 1954, Volume V, Part 11, Cols. 8049–54. Quoted from Ravinder Kumar and H.Y. Sharada Prasad, (eds), Selected Works of Jawaharlal Nehru, edited by (General Editor, S. Gopal), Second Series, Volume XXV, February 1–May 31, 1954, Jawaharlal Nehru Memorial Fund, New Delhi, 1999, pp. 148–51.

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had developed and that were developing and so they codified it in a way which might have been suitable a thousand years earlier and all that could not be changed except by legislation as we are trying to change it now. That is to say, the British were not interested in it this way or that way, but they were only anxious to have some kind of peace in such matters so that they could carry on their process of exploitation or whatever you may like to call it. So, the coming of the British power suppressed this dynamic element in Hindu society. In fact, it made it unchangeable except by legislation and in the early days, of course, there was no kind of legislation. What I venture to say is that the essential thing that kept Hindu society going has been a certain element in it, a certain capacity in it, to adapt itself to changed surroundings and to change.19

He further added that economic and political changes in the country had made progressive social legislations mandatory, There is another aspect, which is equally important, and that is social change, and if you take society, it is an integrated whole. I do not think it is possible for you to think in terms of political change ignoring economic change, ignoring social change. Most people now admit that economic change is as necessary as political change. …If you change the political context, if you change the economic outlook of it, it invariably follows that the social context also changes, whether you wish it or not, and even if you do not wish it, it changes gradually through discomfort, conflict etc. which compel you to change it. Therefore, a true revolution in a country must take into account the political, the economic and the social aspects of it all together. We may differ as to how to do it, but it is the first question broadly one has to take up now. The person who considers himself a political revolutionary and in the economic sense or in the social sense, if I may use the word without meaning any ill, a reactionary or anything conservative, is not an integrated person; he lives in compartments, something of the type of Jekyll and Hyde business, a bit here and a bit there and will not fit in.20

About the universalism of the Special Marriages Bill, Nehru felt that, ‘The Bill affects not Hindus only, but is permissive for anybody, but I referred to the Hindu aspect because that aspect comes up before us repeatedly in this and other matters.’21 Given the strength of the Congress in the legislature and also given the fact that the Special Marriages Bill was an enabling 19

Ibid. Ibid., p.149. 21 Ibid., p.151. 20

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legislation which avoided the Hindu sentimentality in a tangential manner, the two Houses rapidly passed the Bill and the President gave his assent in October, 1954. The Act imparted flexibility in marriage. Those who wanted a civil marriage were allowed to do so after the sacramental marriage was over and thus came to be governed by the Act, although a civil marriage meant severance from the Hindu joint family forever.22 Despite the Congress majority in the legislature, the introduction of the Special Marriage Act through the legislature was no smooth affair. The discussions in the Lok Sabha surrounding the Special Marriage Act revealed the lack of social consensus about the introduction of inter-caste and inter-religious marriages. Like Nehru, the liberal segments of the Indian legislature favoured the SMA as a step in the right direction of attainment of a Universal Civil Code. This argument was forcefully put forward by Law Minister Biswas while introducing the Act in the Parliament in 1954.23 The same point was put forth by the women legislators as well.24

The Hindu Marriage and Divorce Bill in the Parliament, 1954–5 The Hindu Marriage and Divorce Bill was introduced in the Parliament in 1952, and on return from Select Committee, was debated in Rajya Shabha in 1954 and in Lok Sabha in the middle of 1955. It was enacted by the Parliament with the President’s assent on December 20, 1955. The Hindu Succession Bill, the Hindu Minority and Guardianship Bill, and the Hindu Adoptions and Maintenance Bill were debated in the Parliament between 1954 and 1956, and was finally enacted in 1956. The Hindu Marriage and Divorce Bill was the first instalment of the lapsed Hindu Code Bill. In his address to both the Houses of the Parliament on May 16, 1952, the President mentioned the Bill as one of the important legislation awaiting enactment. After another cooling period, by a motion voted on March 16, 1954, the Council of States (Rajya Sabha) referred the Bill to a joint committee 22

D.M. Derrett, Hindu Law: Past and Present, A. Mukherjee and Co. Private Limited, Calcutta,1957, p. 55. 23 Speech by Law Minister, C.C. Biswas, Lok Sabha Debates, Volume XIX, No. V, 1954, col. 7797–9. 24 Renu Chakravarty, Lok Sabha Debates, Volume XVI, No. xii, 1953, col. 2317.

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of both the Houses. The Bill was placed before House of the People (Lok Sabha) on May 10, 1954 by then Law Minister C.C. Biswas.25 Minister Biswas’ speech on May 10, 1954 before the House of the people was significant due to its support of the fact that the Indian psyche was changing, slowly but steadily, The bitter opposition voiced by the public from 1948 to 1951, as evidenced by the sheaves of telegrams which poured into the Secretariat from all quarters of India has now been replaced either by resolutions pressing for this speedy enactment of the Bill and complaining bitterly against the delay which has taken place or by well intentioned criticisms of the Bill for the purpose of improving it.26

the attitude of the legislature was also changing. Rigid defiance gave way to general support for the Bill and Biswas became optimistic in predicting that, ‘the old fashioned difficulties have vanished and that the first instalment of the Hindu Code will now be welcomed by the House as well as by the public in the same spirit it has been presented before them.27 The Bill received significant support from women legislators. Shrimati Jayashri from Bombay observed that women’s organizations throughout the country were eagerly waiting for the Bill. She read out the resolution of women’s organizations urging the quick passage of the Bill: ‘The existing Hindu law regarding marriage and succession, under which women suffer many disabilities, constitutes a contravention to the Constitution. The pending Bill on the Hindu Code have gone through various legislative processes since 1944 and have yet to be placed on the statute book.’28 In her Speech Jayashri made it clear that women’s organizations felt disappointed at the slow progress of the Bill. She stated, when the government made the proclamation that they will either fall or stay with Hindu Code Bill, we all expected that this measure would get priority. The government has taken a very long time…’29 She added that the next elections were not too distant and women’s votes in support of the existing government will depend on the government’s success in steering the Bill. On May 11, 1954, two other prominent 25

Lok Sabha Debates, 1954, p. 6973. Ibid., p. 6976. 27 Ibid., p. 6977. 28 Ibid., p. 6988. 29 Ibid. 26

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women legislators, Sushma Sen and Ammu Swaminathan urged the government to expediate the passage of the Bill. Meanwhile, the broader aspects of codification of Hindu law (and, the more controversial ones) were submitted as the Hindu Marriage and Divorce Bill to the Council of States. On May 21, 1954, Prime Minister Jawaharlal Nehru, gave a strong speech in the Lok Sabha on May 5, 1955. He said, We talk about five year plans, of economic progress, industrialization, political freedom and all that. They are all highly important. But I have no doubt in my mind that the real progress of the country means progress not only on the political plane, not only on the economic plane, but also on the social plane. They have to be integrated all these, when the great nation goes forward.30

He criticized N.C. Chatterjee’s opposition to the Bill in strong words, I had the privilege of listening to the speech of the honourable Member opposite, Shri N.C. Chatterjee… He dealt at great length with what is a sacrament and what is a samskara and other things. He is quite welcome; let it be a sacrament. It concerns us and let us get at what is a sacrament exactly. What does it mean? A sacrament, I take it, is something which has religious significance, a religious ceremony. A Hindu marriage is a religious ceremony, undoubtedly. Nobody doubts that. It has a religious significance. But, does it mean that it is a sacrament to tie up people who bite, who hate each other, who make life hell for each other? Is that a sacrament or a samskara—I do not understand.31

He added, He quoted, he referred to Manu and Yagnyavalkya, very great men in our history, who have shaped India’s destiny. We admire them. They are among the heroes of our history. But, is it right for Shri N.C. Chatterjee or anyone to throw Manu and Yagnyavalkya at me and say what they would have done in the present conditions of India? The point is, it is very unfair for Manu or Yagnyavalkya or anybody else to be brought in as a witness as to what should be done in the present conditions of India. The conditions 30 Speech in the course of the debate during the third reading of the Hindu Marriage Bill in the Lok Sabha on May 5, 1955. Lok Sabha Debates, Volume IV, Pt. 11, April 22–May 7, 1955, cols 7954–68. From Kumar et al., Selected Works of Jawaharlal Nehru, pp. 468–78. 31 Ibid., p. 471.

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are completely and absolutely different. I admit that there should be, and there are, undoubtedly, certain principles of human life which, normally speaking, do not change and should not change. There are certain bases of human life. But, in adapting them in legislation and other things, you have to consider the conditions as they are and not as they were 1,000 or 2,000 years ago.32

Nehru criticized the tendency among the orthodox segment to criticize Western culture, Then again—I speak subject to correction by N.C. Chatterjee—he referred to some learned professor of a Hindu University who has produced a pamphlet. I happened to see the pamphlet. It does not bear his name; I do not know his name. Because he has drawn my attention to it, I looked into that pamphlet. I was surprised that any person, learned or unlearned, should have produced that. What is that pamphlet? That pamphlet is based chiefly on a certain report in America known as the Kinsey Report. It is based on showing how the conditions in the United States of America are. First of all, for a professor, learned or unlearned, to go about issuing pamphlets, condemning other people and customs of other countries, is not a good thing. It is not good for him to do or for any one of us. If it is a scientific study, well and good. The scientists can do it. To make that a parallel and say, “See how horrible the conditions in America are, if you pass this Bill, you will have the same conditions,” is not only non sequitur in logic, but it is a bad way of approach. Very few of us who are present here, I would venture to say, none of us, is competent to give any real opinion, worthwhile opinion, about the conditions in America or England or Russia or anywhere.33

Jawaharlal Nehru gave a lengthy speech and suggested that the Bill was the right step towards gender justice in the country. Thus, one can discern that Nehru after the first general elections was much more emphatic than during the Constituent Assembly debates, when political compulsions forced him to speak and act in a restrained manner. With the recommendations of the Joint Committee, the Hindu Marriage and Divorce Bill came to be discussed in the Parliament on December 6, 1954. It was debated in the Rajya Sabha during December 6–15, 1954. The Rajya Sabha discussed this Bill in great detail. By the time, the Congress Party was well entrenched at the 32 33

Ibid., p. 472. Ibid., p. 475.

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helm of affairs and Nehru was keen to push through the Bill. The general aspects of the Bill were debated extensively by the Rajya Sabha for four days during December 6–9,1954 and thereafter the clause by clause discussions were taken up. The eagerness of the Congress Party and more specifically Jawaharlal Nehru to push through the Bill became evident as on the eve of the clause by clause debate, Nehru chaired a meeting of the Congress Party. The party decided on forwarding several amendments to the Bill as it came from the Select Committee. In the internal meetings of the Party, the Congress decided to put forward four amendments to the Hindu Marriages Bill. First, the Congress wanted lowering the age of marriage for boys from 21 to 18 years and for girls from 18 to 15 years. Second, in the pre-Act marriages where girls were below 15 years in age, they should be given the power to seek divorce. Third, marriages in contravention to the Act must be made a punishable offence and fourth, in case of pre-Act polygamous marriages, wives should be given the option to walk out of it, if they so desired. While there was certainly strong support from the Congress and women legislators, the passage of the Bill had to encounter bitter opposition both in society and in the Parliament. A common slogan propagated by the Hindu conservative segments read as follows: ‘Brother and sister will be able to marry each other if Hindu Code becomes law!’ The opposition to the Marriage and Divorce Bill was also in evidence from the first day of the debate in the Rajya Sabha. At the very outset of the debate, the Ganatantra Parishad members tried to rule the Bill ‘ultra vires’. Surendranath Mohanty argued that the Bill offended Article 15(1) of the Constitution, as it discriminated against persons on grounds of religion. How could monogamy, he argued, be imposed on Hindus alone and not on the Muslims? B.K. Mukherjee (Congress MP from UP) expressed his opposition to the provision of divorce in the following manner: ‘In these days of co-existence between warring nations and co-existence between political parties like the Congress and the Communists, why should we not have coexistence in our homes between warring husbands and wives.’34 December 14, 1954 saw an extensive eight-hour debate on the clauses relating to divorce in Hindu marriage. Being a major contentious aspect of the Hindu marriages, it was debated 34

The Times of India, December 9, 1954, p. 11.

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extensively. After extensive deliberations, the House converged on the view that women who entered into pre-Act marriages could seek divorce if their husbands entered into polygamous marriages. Women parliamentarians, Seeta Paramanand, Savitri Nigam, Chandravati Lakhanpal, (all Congress) and Parvati Krishnan found themselves isolated when they opposed the clause that marriage was voidable if the wife was pregnant by some other person than the husband. They expressed the concern that this clause was prone to be abused. However, it failed to find much favour among the parliamentarians. On December 15, 1954, the Rajya Sabha concluded its eight-day debate on the Hindu Marriage Bill, the first part of the Hindu Code Bill. The Bill was steered in the Rajya Sabha by D.P. Karmarkar. Even the opponents of the Bill stated that the Bill will strengthen the Hindu society and increase its vitality.35 Accepting an amendment moved by Seeta Paramanand of the Congress, the name of the Bill was changed from Hindu Marriage and Divorce Bill, 1952 to Hindu Marriage Bill, 1952. It was also hoped that other parts of the Bill dealing with succession would be taken up quickly. D.P. Karmarkar, while piloting the Bill in the Rajya Sabha, commented, ‘I am quite sure that this measure, when placed in the Statute book, will not only preserve the vitality of the Hindu law, but also continue the stability of the Hindu society.’

1955 and 1956: The Landmark Years Looking back, 1955 and 1956 turned out to be landmark years in Indian social history. With the passage of the Hindu Marriage Act, legalizing divorce and taking marriage out of religious sacrament to the realm of legal contract, 1955 proved to be the first stepping stone of a long (and yet unfinished) journey towards the emancipation of Indian society from the clutches of religious fundamentalism. Ironically, 1955 also marked the release of Guru Dutt’s film Mr. and Mrs. 55, based on a storyline that has the Hindu Code Bill controversy at the backdrop. The first scene of the film involves a newspaper boy’s fullthroated sales pitch: ‘Assembly mein zordaar behas—“talaaq” (heated debate in the Assembly—“divorce”).’ A crowd eagerly 35 ‘Unanimous Approval of the Hindu Marriage Bill: Rajya Sabha Concludes Eight Day Debate’, The Times of India, December 16, 1954, p. 7.

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converges to grab copies of the paper and the camera tracks a young bespectacled woman buying a copy. As the theme evolves, it becomes clear that the film depicts gender relations through the prism of a patriarchal world. The film thus deals with the possible misuse of the inherent destabilizing potential of the law in the making, the Hindu Marriage Act. It thus resonated the view propagated by orthodox segments of the society that the institution of marriage among the Hindus was pristine and therefore should not be bound by legal contracts, structured for alienated western capitalist societies. Thus, the film is a subtle commentary on the Hindu Marriage Act’s reception in popular discourse. Mr. and Mrs. 55 makes a mockery of the historic moment of victory for Hindu women, the Hindu Marriage Act, 1955. The plot in Mr. and Mrs. 55 deals with the infamous Hindu Code Bill, notorious in the public’s view because of a divorce clause granting women the right to annul a Hindu marriage and transforming marriage from a sacrosanct, lifelong act to a legal, terminable contract. As the film interrogates this Bill, its narrative manifests symptoms of male anxiety about the repositioning of women in Indian society. These symptoms include publicly mocking women or trivializing and caricaturing their demands. Most insidious and effective of all, the film pits the misguided, ‘westernized,’ ‘individualist’ woman against the model, selfeffacing, traditional woman, making the modernized woman finally learn the virtues of an ‘Indian’ sensibility. The film affirms a deeply conservative version of marriage and gender relations in the Indian society, and in this process, hints at deep-rooted patriarchal traditions in Indian society.

The Enactments of 1955 and 1956 The Hindu Marriage Bill, as passed by the Rajya Sabha, was debated in the Lok Sabha during the month of April. The debate began on April 26, 1955, with the allotment of 30 hours for the debate. By that time, the opposition to the Bill had considerably weakened due partly to the euphoria with Nehruvian socialism and partly to the compromising stance taken by the Congress in several controversial issues. The mantle of the opposition fell on the Hindu Mahasabha and its erudite leader N.C. Chatterjee. Chatterjee, with his characteristic aplomb, tried to put forth the point that in the absence of a clear mandate from people, the Hindu Marriage Bill

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should not be moved by the government. However, in the midst of loud applause, Law Minister H.V. Pataskar placed the Bill before the Lok Sabha. He observed that the Bill is in the best interests of the Hindu society and it enjoyed widespread support. He added: ‘Greater emphasis has been laid in the Bill on attempts to prevent marriage ties from breaking up as far as possible. This is in keeping with our tradition also.’36 By April 29, 1955, it became clear that the opposition was hell bent on dragging the debate and delaying its conclusion. Accordingly, on the same day, the Lok Sabha agreed to extend its session to expediate the passage of the debate. The session of the Lok Sabha was extended from May 5, 1955 to May 7, 1955. The decision was made at Nehru’s insistence to push the Bill. Nehru’s rise to power as Prime Minister had silenced the Congress’ opposition. With the power of significant majority, there is no way in which the opposition could have prevented the Bill’s passage. Therefore, the Lok Sabha concurred with the Rajya Sabha and the Bill was forwarded to the President for his assent. The President gave his stamp of approval on the Bill on May 20, 1955. In December, 1954, the Bill was passed by both the Houses, and was enacted subsequently as the Hindu Marriage Act of 1955. The Hindu Minority and Guardianship Bill was introduced in April, 1953, and the Hindu Succession Bill in December, 1954. The Hindu Succession Act saw a smooth passage though the legislative process and was enacted as the Hindu Succession Act in May 1956.

FOUR PILLARS OF HINDU FAMILY LAW The first of the four Acts is the Hindu Marriage Act, 1955 and this legislation was supposed to be the most progressive and liberal among the whole gamut of personal laws in India. But this was a diluted version of the provisions made in the Hindu Code Bill of 1948. Its original provision for civil marriage was removed and separately passed under the Special Marriage Act of 1954. A discussion of the basic features of the four acts from the gender viewpoint may be worthwhile to understand the impact of the Hindu Code Bill on gender equality. 36

Lok Sabha Debates, April 27, 1955, p. 11.

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The Hindu Marriage Act, 1955 The Hindu Marriage Act removed the necessity that marriage had to be performed within the same caste. It also introduced monogamy as a rule and uniform provisions for the dissolution of marriage. While the Hindu Marriage Act was progressive from the point of view of the dominant North Indian region, for women of South India, the Act proved to be a setback. This was very clear in the case of divorce laws. In a large number of communities, where divorce and re-marriage were in practice, divorce was an easy process which was supervised by the community decision-making body. In certain tribes of Rajasthan, women were free to walk in and out of marriage provided the next husband reimbursed the former husband the bride-price. The Marumakkattayam system in South India allowed divorce on grounds of incompatibility. But the framers failed to draw on the indigenous system of divorce while framing the law. The Hindu Marriage Act in fact made divorce difficult. While some opponents of the Bill pleaded that for the poor this would be a costly process, some others though it to be a positive aspect as it would enforce marital virtue. The Hindu marriage Act, however, could not disregard customary practices either. In fact, it was a compromise with customs. The Act defined ‘customs’ and ‘usage’ as any rule, which, having been continuously and uniformly observed for a long time, has obtained the force of laws among Hindus in any local area, tribe, community group or family, provided that the rule was certain and not unreasonable or opposed to public policy. For instance, clause 7 of the Hindu Marriage Act gave importance to customs. Sub-clause 7(1) says, ‘A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party hitherto.’ Sub-clause 7(2) says,‘Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.’37 The Act therefore was a fusion between sacrament and contract.

The Hindu Succession Act, 1956 The Act dealt with the crucial aspect of control over property and adopted an egalitarian approach in determining control over property. The Hindu Succession Act is presently applicable to all 37

Government of India, Hindu Marriage Act, 1955.

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States other than Jammu and Kashmir and covers about 86 per cent of the Indian population. Tribal communities of the NorthEastern States of India were not covered by this Act, while there were special provisions for matrilineal facilities governed by the Marumakktayam and Aliyasantana systems of Namboodiri Brahmins. The Act was an attempt to unify the Mitakshara and Dayabhaga legal doctrines dated around twelfth century AD influenced legal practice in the British period. The Hindu Succession Act of 1956 tried to lay down a law of succession whereby no discrimination was to be made between sons and daughters in inheritance. If a Hindu male died intestate, all his property in the first instance devolved equally upon his sons, daughters, and widowed mother. If there was a predeceased son, his children and widow obtained the share he would have received, if alive. Therefore, all female heirs had absolute ownership and not a limited interest on the property. Since the passing of the Hindu Succession Act, 1956 some states have enacted laws abolishing joint family property. The state of Kerala in 1976 abolished joint ownership of family property through the Kerala Joint Hindu Family System (Abolition) Act, 1976. Subsequently, Andhra Pradesh in 1986, Tamil Nadu in 1989 and Maharashtra in 1994 have amended the Hindu Succession Act to recognize unmarried daughters (that is daughters who were unmarried when the Act came into force) as coparceners by birth in their own right in the joint family property. This however does not apply to the daughters married prior to the Amendments. Despite all these progressive elements, several major sources of gender inequality still remain in the Hindu Succession Act since the concept of Mitakshara joint family succession continues to be recognized in most of the states, and some of the inherent gender inequalities in the coparcenary property persist in many states. As only males can be coparceners in the joint family property, sons have rights over property while daughters have no rights. Also, the right to the deceased father’s joint family property goes to sons if the father dies intestate. In such cases the daughters are deprived. Consequently, if a man converts his private property into joint family property, daughters fail to get their share in father’s property. Married daughters still do not have residence rights in the ancestral home. While unmarried daughters, divorced, deserted women and widows do have residence rights, they do not have right

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to demand partition of property which is enjoyed by their male counterpart. Thus, many provisions of the Hindu Succession Act continued to remain gender biased. Amendments to the Hindu Succession Act, 1956

The passage of the Hindu Succession Act, 1956 failed to address the problems in connection with land rights. While the Dayabhaga system was incorporated in the Hindu Succession Act, 1956, the Mitakshara joint family property was left untouched. The framers of the Hindu Code thus lost an opportunity to frame a comprehensive code of property rights based on gender justice. It took five decades to make appropriate amendments to the Hindu Succession Act. In 2005, finally, the Act was amended and the Section 4(2) was removed. Also, the Mitakshara joint family property was brought under the purview of the Hindu Succession (Amendment) Act, 2005. This means that for five decades since Independence, women faced grave discriminations in land rights. The recent amendment to the Hindu Succession Act, 1956 shows the relevance of history for the future. The issues that were debated during the Hindu Code Bill era reappeared once again after fifty years. The society was not ready then to give women greater rights in property. The social consciousness is different now, making the amendment possible.

The Hindu Adoption and Maintenance Act, 1956 According to the Hindu Adoption and Maintenance Act, 1956, a woman was eligible to claim one-third of the joint income of her husband and herself, although, establishment of the income of the husband rested on the wife. As a major portion of the Indian society was and still is unorganized and based on agriculture, it is difficult to establish the income of the husband and consequently the court cases dragged on for years. A woman generally ended up spending more in litigation for the pittance she ultimately obtained. Moreover, there was no guarantee that her husband would make regular payments. If the husband did not pay the alimony the wife had to approach the court again. These difficulties associated with the implementation of Hindu Adoption and Maintenance Act, 1956 made most women sceptical about the utility of the law. Most women preferred instead too plead under Section 125 of the Criminal Procedure Code which was not really the relevant

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procedure for the divorced wife. Section 125 of the Criminal Procedure Code exists to safeguard all destitute women, children and old parents. But under a criminal case, women can get relief more quickly. The very fact that women accept this trade off between time and money clearly demonstrated the failure of the Hindu Adoptions and Maintenance Act.

The Hindu Minority and Guardianship Act, 1956 According to the shastric law as followed till the Act of 1956, guardians could be classified into three groups, viz., natural guardian, guardian appointed by father by way of a will, and guardians appointed under the Guardianship and Wards Act, 1890. The first two categories borrowed their authenticity from the Hindu shastras while the third was a result of the British endeavour of codifying Hindu law. The Guardians and Ward Act, 1890, did not alter the rights of natural guardian as conferred by the Hindu shastras. It however added that if the court appointed a natural guardian, the natural guardian under the Hindu law ceased to function. Its main features were: a. Father was the natural guardian of the minor. b. The natural guardian could mortgage, sell or otherwise transfer immovable property of the minor and there was no need of prior sanction by the court. c. A Hindu father could nominate a guardian, orally or through execution of a deed, so as to exclude the mother of the child as a guardian. d. The mother had no right to appoint testamentary guardian even if the father expired. The Hindu Minority and Guardianship Act, 1956 made several modifications of the earlier Act, though the father remained the natural guardian of a child. If the father neglected or avoided any responsibility the court may accept the mother’s authority in the interest of the children (Section 6). Section 6(a) stated that the custody of the child below the age of five years would ordinarily be with the mother. Section 6(b) stated that the mother is the lawful guardian of illegitimate children. The basic power arrangements of the traditional Hindu law did not undergone major change, as Section 9 gave authority to the father to appoint a testamentary

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guardian and thus to exclude mother from guardianship. But Section 9(1) said that even if the father appoints a testamentary guardian, it shall not exclude the authority of the mother as a natural guardian if the father died and the mother was capable of acting as a natural guardian. Another important improvement was Section 9(3) which gave the mother the right to appoint a testamentary guardian in certain circumstances.

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7 THE HINDU CODE BILL IN INDEPENDENT INDIA

I

t became evident during the process of codification of Hindu law that there existed serious reservations in the society towards the Hindu Code Bill. The Parliament, which unanimously supported the principals of equality and removal of gender discrimination while backing the Constitution, considerably altered its position by opposing the passage of the Hindu Code Bill. Given the intensity of the opposition to the Hindu Code Bill, the passage of even a truncated and fragmented version of the Bill was perceived by many as a sign of progress. Jawaharlal Nehru observed that, while many a progressive clause was bypassed as they were socially controversial or offending Hindu sentiments, the overall contribution of the enactments of 1954, 1955, and 1956 should not be ignored. While addressing the chief ministers in a letter dated May 10, 1956, Nehru remarked, ‘passage of this legislation marks an epoch in India, due to the dynamism it has imparted to the Hindu law.’1 To Nehru, the passage of the legislations regarding Hindu social reform had great symbolic significance. In his letter to the chief ministers on June 15, 1956, Nehru wrote, ‘they are not in any way revolutionary in the changes they bring about and yet there is something revolutionary about them. They have opened the barrier of ages and cleared the way somewhat for our womenfolk to progress.’2 J.D.M. Derrett, a noted expert on Hindu law and its codification, observed that the Code deliberately leaves room for customs to 1 Jawaharlal Nehru, Letters to Chief Ministers 1947–64, Volume IV, May 10, 1956. 2 Ibid., June 15, 1956.

Debating Patriarchy. Chitra Sinha. © Oxford University Press 2012. Published 2012 by Oxford University Press.

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prevail, while creating inroads into the administration of Hindu law. Derrett observed, The result is bound to be the elimination gradually of that esoteric and complicated technique of administering Hindu law which is hardly adequately describable in terms of anything other than mystery. Hindu law will come down out of the clouds and will take on the guise of a statutory law similar to the law of Contract or Evidence. This cannot but be beneficial in the long run.3

On the other hand, many women parliamentarians felt that the Hindu Code Bill, in its final fragments, did not go far enough in ensuring legal justice to women. Sucheta Kripalani observed in Parliament, ‘this is basically a halting and half hearted measure… but by no means I am prepared to call it a wonderfully progressive measure.’4 Immediately after the emphatic victory of the Congress in the first general elections, Renuka Ray wrote in the Pacific Affairs: ‘Although the Hindu Code Bill constitutes only a mild reform measure, and though it cannot by itself effect all the changes necessary to accord women a position of equality in society, it has become a symbol of progress, and its fate is being watched with great interest in India.’5 Indeed, the Hindu Code Bill was, in more ways than one, a stepping stone for the creation of a progressive representation of women. The legislations carved out of the Hindu Code Bill, viz., the Special Marriage Act, 1954, the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Adoption and Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956 were all embedded with elements of progression not only in achieving justice for women but also as an enabler in transforming the Indian patriarchal mindset. Not everyone was convinced though, that the shifting contours of gender relations in modern India will significantly transform society through effective implementation of law. As the family laws carved out of the Hindu Code Bill began to be implemented in practice, it became obvious that the presence of legislation does 3

J.D.M. Derrett, Hindu Law: Past and Present, p. 269. Quoted in Reba Som, ‘Jawaharlal Nehru and the Hindu Code: A Victory of Symbol over Substance?’, Modern Asian Studies, Volume XXVIII, No. 1, 1994, p. 173. 5 Renuka Ray, ‘The Background of the Hindu Code Bill’, Pacific Affairs, Volume XXV, No. 3, September, 1952, p. 277. 4

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not necessarily serve to guarantee its implementation. Upendra Baxi subdivides the perception about legal reforms into four categories: The ‘Nihilists’. …suspect all law talk is an excuse to divert and deflect, and to depoliticise the nature and agenda of the struggle for woman’s emancipation. The ‘Evangelists’ show in deep contrast, an abiding commitment to the rule of Law. …The ‘Moderates’ appreciate the potential role of the Law but believe that legal changes in themselves are not likely to usher significant social changes. The ‘Eclectics’ will use it (law) without thinking much about the significance of the use of the law for social thought and action.6

The question therefore arises: has the experience with codification of Hindu law spanning over a decade and a half covering 1941 to 1956 been a move towards social progress leading to gender equality or has the codification turned out to be a dilution without any contribution? Or does the answer lie somewhere within the broad range of polarised viewpoints? The present chapter is a search for plausible answers to the difficult yet relevant question. An effort is made here to first, look at a variety of views thrown up by existing literature, second, to look for theoretical interpretations and empirical evidence and third, to explore the interlinks of the legacy of the Hindu Code Bill controversy and family law reforms of 1955 and 1956 and related social forces that influenced gender consciousness and family law reforms in modern India. The three social forces examined in this chapter are the State, women’s movement and the media. We also look at the evolution of family law reforms in the post-Hindu Code Bill independent India and assess its impact on legal changes for other communities in India. Finally, in the light of the above evidence, the chapter attempts to provide an expanded interpretation of the impact of the Hindu Code Bill on gender consciousness in Indian society.

DOMINANT PERCEPTIONS ON THE HINDU CODE BILL The explanatory literature published during the Hindu Code Bill debate or immediately afterwards were attempts to explain to non-professionals what the law wanted to achieve. Three notable 6 Upendra Baxi, The Crisis of the Indian Legal System, Vikas Publishing House, New Delhi, 1982, p. 1.

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contributions on the Hindu Code Bill, published during the period 1950 to 1957, explained the broad provisions of the Hindu Code Bill. The first available explanatory work was by T.K. Tope and H.S. Ursekar, Why Hindu Code?(A historical, analytical and critical exposition of the Hindu Code Bill), published in 1950 by the Dharma Nirnaya Mandal of Poona. This work discussed the sources and evolution of Hindu law, shortcomings of the present system of Hindu law, and developments in the legal sphere after the Hindu Women’s Right to Property Act, 1937. It also explained the salutary as well as objectionable features of the Code in a way intelligible to the common man. Tope and Ursekar came to the following conclusion, The foregoing discussion on the Code will, it is hoped, convince any openminded person of the urgent need of placing the code on the statute-book, and that the so-called objections to the Code are either unfounded or are based on the obstinacy of the reactionary element. …. Those persons who object to the code on the ground that it is opposed to the tenets laid down in the Smritis, should come forward, if they are earnest in their objections, with a code based on ancient texts only. No one has as yet attempted such a task. We think that it is not possible to have a code of this sort. It is admitted that courts have made many inroads on the Smriti law, but no lover of Smritis has ever attempted to remove these inroads. The orthodox sections are merely criticising the Code. The criticism is not constructive. … Such an attitude will never help either themselves or the society.7

Tope and Ursekar argued in favour of a positive approach to law formation, If the society has to survive and progress, it must ignore such negative attitude and accept the positive one. The Code presents this positive attitude. Dharanat Darmam is the definition of Dharma given by the ancient text. The Code will contribute to the Dharana of the society and its contribution will be substantial. Thus it becomes Dharma.8

The second contribution to the explanatory literature is Justice Prahlad Balcharya Gajendragadkar’s book, The Hindu Code 7 T.K. Tope and H.S. Ursekar, Why Hindu Code?(A historical, analytical and critical exposition of the Hindu Code Bill), Dharma Nirnaya Mandal, Poona, 1950, pp. 67–8. 8 Ibid., p. 68.

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Bill, based on his two lectures delivered under the auspices of Karnataka University, Dharwar on April 12–13, 1951.9 In an exposition of Hindu law as it has evolved over time, Justice Gajendragadkar discussed Hindu law as administered by the courts in India. Emphasizing the inherent dynamism of Hindu law, he said that, Indeed, the principal point which I wish to emphasize is that the Hindu Code should be considered rationally and scientifically on its own merits. I have endeavoured to show that it is an illusion to entertain the belief that Hindu law has never changed or that it is of divine origin. Hindu law has changed from time to time, though the method adopted in introducing these changes was somewhat unusual. I have also endeavoured to show that during the British rule Hindu law tended to be static and by reason of the infirmity from which the courts suffered its further growth was inevitably arrested. Attempts were made from time to time to meet the crying need for reform on some special parts of Hindu law; but the time has now come when the problem must be attacked boldly and fearlessly and the whole of the Hindu law must be put on a rational basis.10

He added that caution should be exercised while taking progressive steps, I agree that it may be undesirable to over legislate or to legislate hastily or far in advance of the social conscience. On the other hand, it is wholly undesirable to allow the personal law to remain far behind the social conscience either. From time to time as popular customs, usages and beliefs change the lag between them and the personal law must be abridged, if law has to remain alive, dynamic and useful for social progress. We are living in days when the old religious view of life would serve no purpose and it is our duty to discard it.11

The third exposition came from John Duncan Martin Derrett in his book Hindu Law: Past and Present, published in 1957.12 9 Justice P.B. Gajendragadkar, The Hindu Code Bill, Karnataka University Extension Lecture Series, No. 2, Karnataka University, 1951. 10 Ibid., p. 46. 11 Ibid., p. 51. 12 John Duncan Martin Derrett, Hindu Law: Past and Present: Being an account of the controversy which preceded the enactment of the Hindu Code, the text of the Code as enacted, and some comments thereon, A. Mukherjee, Calcutta, 1957.

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Derrett undertook a study of the Hindu Code Bill that was neither too superficial nor too detailed, to aid the common man eager to understand its implications.13 In Chapter three of the book, Derrett provided us with a bird’s eye view of the crucial historical landmarks of the Hindu Code Bill debate. Terming the entire episode as a ‘gruelling experience’, Derrett observed, From that gruelling experience one very useful lesson was learnt, namely that compromise might achieve what rigid adherence to principle and commonsense might fail to attain. Practical utility and theoretical perfection had to come to terms, and the battle revealed that the practical approach might be in everyone’s interests. The necessity for compromise had made itself felt at the last stages of the Bill’s unhappy fight for survival. The Law Minister himself accepted that, in order that the Bill should be passed, even major amendments might be acceptable to the Government.14

Stating that the Hindu law reforms of 1955 and 1956 would result in the unification of practices among the Hindus, Derrett observed, The result, however, despite the savings, will undoubtedly be a very substantial bid for unity among Hindus and those not belonging to the minority religious groups. It is hoped that within a reasonable period the exceptions can be reduced in number, as community after community voluntarily abandons the irregular customs which are at present to be preserved. Precedents for this gradual conversion are not far to seek, and the plan is both practical and realistic.15

He added with optimism that, The last lap of the journey towards the Indian Civil Code looms very much nearer—which is just what was intended.16

His optimism is demonstrated in his faith that ultimately the Hindu Code Bill would prove to be a stepping stone for a Uniform Civil Code for all the Indians, breaking the very relationship of law and religion. He remarked,

13

Ibid., Preface, p. i. Referring to Law Minister C.C. Biswas’ comment in the Lok Sabha in 1954 that the government is ready for major amendments in the draft to get the Bill legislated. 15 Ibid., pp. 71, 80. 16 Ibid., p. 269. 14

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As soon as the ice is broken, and the mystery is dispelled, people will begin to ask, why are Hindu marriages different from marriages under the Special Marriage Act or the Indian Christian Marriage Act? Why do we not have an Indian Marriage Act? What justification is there for retaining the fragments of archaic law in Succession and Adoption? Why do we not remove the last traces, and let the religiously inclined manage other worldly things independently? Let adoption be placed upon a rational footing, so that those persons benefit from the institution who should naturally benefit, without reference to religion. Such remarks are much more cogent after the passing of the Code, and the Code as the only authoritative statement of the Hindu law has nowhere to look to for support.17

Thus, Derrett in his book appeared optimistic that the Hindu Code Bill would prove to be beneficial in the end, and would assume an overriding character, and litigations in modern India would be discussed solely in terms of the Hindu Code Bill.

ANALYTICAL REVIEWS OF THE HINDU CODE BILL The second category of work on the Hindu Code may be termed as analytical reviews, which started with John Duncan M. Derrett’s book, Religion, Law and the State in India, published in 1968.18 In Chapter ten of the book, Derrett reviews the codification of Hindu law. By this time, Derrett’s unbridled optimism seems to have been moderated by the experiences of case laws all over India during the late 1950s and the decade of 1960s. He observed that the Hindu Code Bill was an elitist project, commenting, Thus the real reasons which propelled Hindus into the ‘Hindu Code age’ were not in any sense religious any more than they were anti-religious. They had to do with the formation of a new nameless caste, the caste of the ‘haves’, who naturally have the instincts of all previous castes. And a thoroughly reasonable programme it was. The aid of the lawyers was taken at the right moment, but when the lawyers’ energy flagged (too much of it at the time was taken up with the demands of the nascent Constitution) the men and women who ruled India supplied all that was needed. Their opponents, the ‘orthodox’, were people who did not need to contemplate inter-caste marriage and suspected the motives of those who did. Religion was attempted to be used as a means of preventing what influential society wanted, and it might have succeeded had not the previous custodians of the 17

Ibid. John Duncan M. Derrett, Religion, Law and the State in India, The Free Press, New York, 1968. 18

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Hindu law made out of it, bonafide, so appalling a system, from which anyone would have been glad to escape who cared for his country’s prestige.19

Derrett’s review thus pointed out that the outdated state of Hindu law enabled the country’s elite to push through a legislation designed to benefit the upper social strata. There was also recognition of the progressive elements of the Hindu Code, and its role in having provided a benchmark for society to move on. He noted, Whatever the reformers achieved in 1955–6 they did not go back on the achievements of the Hindu law during the British period…. They claimed that progress had been too slow and that reforms they initiated ought to have been brought in long before. They did not seek the support of religion, and they rejected the aid of those who claimed that Hindu scriptures, rightly interpreted, really foresaw such amendments as they were proposing… the reformers proceeded largely upon the basis of common sense and the general demands of society: indeed the Anglo-Hindu law had little obvious sense, and no one could have constructed such a system de novo on any rational basis.20

There were two other analytical works of a similar nature, viz., Harold Levy’s Indian Modernization by Legislation: The Hindu Code Bill,21 and Indu Prakash Singh’s, Women Law and Social Change in India.22 The two works are rather similar on the ideological plane, in assuming the instrumental character of law. Harold Levy argued that the Hindu Code Bill was a debate between the secular, modern intelligentsia and the orthodox, traditional segments of the society. The law, according to Levy, was a tool for social modernization. While taking a close look at the debate, both studies accepted that the law that was enacted was quite clearly ahead of its time, paving the way for the growth of a secular and modern India. Other analytical reviews of Hindu law reform included Angeles J. Almenas Lipowsky’s The Position of Indian Women in the Light of Legal Reform.23 The book surveyed the position of Indian women 19

Ibid., p. 350. Ibid., p. 321. 21 Harold L. Levy, Indian Modernization by Legislation: The Hindu Code Bill, Unpublished PhD Dissertation, University of Chicago, 1973. 22 Indu Prakash Singh, Women, Law and Social Change in India, Radiant Publishers, New Delhi, 1989. 23 Angeles J. Almenas Lipowsky, The Position of Indian Women in the Light of Legal Reform, Franz Steiner Verlag, Wiesbaden, 1975. 20

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after Independence, by looking at legislative changes and their implementation. She observed that it was very difficult to establish a causal link between legal reforms and the status of women within the family. Her study thus supported the major contention of the government sponsored report, Towards Equality in 1974, that there was no substantial improvement in the status of women since independence.24 While Levy and Singh perceived law as the leading modernizing force and society as the follower in their adaptive framework of law, Lipowsky turned the notion on its head. She wrote, Thus unless the actual position of the majority of Indian women improves further in society, work and at home, family law will continue to see her in almost all questions as subordinate to the husband and the family, and the courts will continue to reflect this in their decisions. At the same time, there has been some modification of family law … brought about by the courts’ interpretation and application of the law as it affects the position of women and in specific their right to maintenance, guardianship and divorce.25

She also added that except for the prevention of cruelty, the Indian courts did little to improve the status of women in society. Lipowsky’s conclusions were based on a study of court cases in India during 1965 to 1971. Jana Matson Everett in Women and Social Change in India,26 published in 1979, recorded the role played by the women’s organizations and women leaders in their struggle for legislative reforms.27 This may be regarded as a pioneering research effort in placing on record the contribution of the women’s movement in promoting legislative reforms, an aspect until then neglected by the earlier works. Everett’s research emphasized that the women’s movement did not remain a mute spectator of the Hindu Code Bill debate, but actively tried to promote their cause. While judging the contribution of the Code, however, Everett agreed with Derrett’s observations that the Hindu legal reforms did not make major difference at the level of implementation and in actually improving the status of women. Referring to a study conducted in a village in 24 Government of India, Towards Equality: Report of the Status of Women in India, Ministry of Education and Social Welfare, New Delhi, 1974, p. 297. 25 Lipowsky, Position of Indian Women, p. 194. 26 Jana Matson Everett, Women and Social Change in India, St. Martin’s Press, New York, 1979. 27 Ibid., pp. 141–89.

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Uttar Pradesh (1954–7),28 which demonstrated complete ignorance among Indian women about the Hindu Code Bill legislation, Everett concluded that Indian society and its women were not ready for the progressiveness of the Hindu Code Bill. She quoted another study conducted in Poona,29 which found that few divorce cases were brought to the court and a majority of these were from castes where customary divorce was practised. Based on the findings, Everett observed that in the absence of a mass educational campaign on the part of the Hindu Code Bill supporters, peoples’ reactions corresponded to the claims of the opponents of the Bill. She also noted that the predicted social chaos did not take place chiefly because the provisions in the Hindu Code Bill were totally neglected in practice.30 The empirical approach of examining women’s experiences either through social surveys or in the light of case laws to assess the success of Hindu family law reforms of 1955 and 1956 saw further refinements in the works of Archana Parashar, Women and Family Law Reform in India,31 and Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India.32 Archana Parashar argued that the Hindu Code Bill, while being an effort towards unification, did not fundamentally redefine the roles of women.33 She held that the State wanted to challenge the authority of the religious system without at the same time appearing to crush the traditional culture and way of life. She wrote, In this way it could avoid alienating the majority of Hindus. Its own legitimacy was dependent upon the population not perceiving it as violating their religion and customs. Perhaps that explains the State’s reliance on the claim, wherever possible, that its proposals were sanctioned by the traditional authorities or at least not prohibited by them.34 28 Mildred Stroop Luchinsky, ‘The Impact of some Recent Indian Government Legislation on the Women of an Indian Village’, Asian Survey, Volume III, December 1963, pp. 573–83. 29 Kamalabai Deshpande, ‘Divorce Cases in the Court of Poona’, Economic Weekly, July 1963, pp. 1179–83. 30 Everett, Women and Social Change in India, p. 189. 31 Archana Parashar, Women and Family Law Reform in India, Sage Publications, New Delhi, 1992. 32 Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India, Oxford University Press, New Delhi, 1999. 33 Parashar, Women and Family Law, pp. 112–13, 265. 34 Ibid., p. 141.

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Regarding women’s rights, Parashar was sceptical that while female mobilization and gender justice were important objectives, they could not be achieved at the cost of alienating men. She observed, The law reformers had to tread a fine line in giving women better rights but not seeming to take away too many of the privileges of men. For this reason rights of women under Hindu law were modified without altering female roles too drastically. The attempt to appear progressive had to be balanced against the equally important need not to alienate men too much, for men stood to lose their privileges if religious personal laws were substantially modified. The actions of the State show the tension that existed between the forces of traditionalism and modernization.35

She noted that in deciding to save certain religious rules, the State tried to determine which religious practices or institutions suited its own project of economic development, For instance, the saving of Mitakshara joint family property could be explained as conducive to fast commercial growth. Similarly, the decision to allow customary divorces to continue could be seen as allowing the continuance of a competing system alongside the State legal system. Yet it cannot be a coincidence that the rules which were saved were invariably detrimental to the interests of women. Thus, the ambiguity regarding the relationship between State law and religion firstly results in women getting less than equal rights, and secondly gives the State an avenue to make decisions which it could not otherwise have made except under the pretext of ‘religious’ reasoning. For instance, it would have been very difficult for the State to enact a law and give men the power to adopt but deny women a similar right. Yet the same result could be accomplished relatively easily by purporting to support the ‘continuation’ of the rules of Hindu law to the same effect.36

According to Parashar, the compromises made in the name of continuing with the religious practices illustrate the nonhomogeneous nature of the State. The resultant law reflected as much on the efforts of the government political elites as on the resistance put up by male interests in the name of saving the ancient culture, ancient religion or even the traditional way of life. Comparing the Indian experience with the experience of legal reforms in Central

35 36

Ibid. Ibid., p. 142.

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Asia by the Soviet Government,37 Parashar demonstrated that the Hindu law reform did not benefit women in a number of counts. Nevertheless, she recognized that, Even so, in conclusion, the State did give Hindu women much better rights than they had ever before enjoyed. However, ever within the area of personal matters, complete legal equality between the sexes was not an initial objective, the rhetoric of the State notwithstanding. It was only gradually, as the reform proposals assume their final shape, that the idea came to be accepted that women might be entitled to equal rights. … Since the enactment of the Hindu Law Acts, not much legislative activity has taken place with regard to Hindu personal law.38

Archana Parashar concluded that the Hindu Code Bill only partially improved the conditions of Hindu women, and left a lot to be desired. Flavia Agnes’ well known work Law and Gender Inequality, continued the same methodology of assessing the Hindu Code Bill from the viewpoint of empirical evidence of case laws in independent India. She recognized the Hindu Code Bill as the most significant legislation regarding Hindu family law, saying that, ‘The history of Hindu law reform spans a period of fifteen years from 1941 to 1956.’39 She added that during the debate on the Hindu Code Bill, ‘At each stage it went through a dilution of rights, till finally, the political interests of the ruling party became the primary consideration. But the rhetoric continued to be ‘liberation of women.’40 Agnes argued that since the political impediment to reform Hindu law was grave, several balancing acts had to be performed by the State and consequently, provisions empowering women had to be compromised to reach the level of minimum consensus.41 Through a detailed analysis of experiences in postIndependence Hindu law implementation, Agnes observed, Although at one level, statistics for wife murder and suicide by young brides signalled a phenomenal increase in family violence among Hindus and the soaring number of destitutes reflected the inadequacy of the reformed Hindu law, the discourse on the Uniform Civil Code continued 37

Ibid., pp. 135–9. Ibid., p. 136. 39 Agnes, Law and Gender Inequality, p. 78. 40 Ibid. 41 Ibid., p. 81. 38

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to project the codified Hindu law as a model for women’s liberation and empowerment.42

Madhu Kishwar in her article, Codified Hindu Law: Myth and Reality made the observation that all the provisions in the Hindu Code existed in some parts of the country, and in this sense, Hindu Code was an assimilation but not a major progressive legislation.43 Geraldine Forbes in Women in Modern India, provided a brief historical account of the Hindu Code Bill.44 She documented the contribution of the women’s movement in the twentieth century, situating her analysis against the historical context of a modernizing State and traditional orthodoxy. Her analysis of the Hindu law reform was that women’s cause was used by the State in its campaign for modernization. However, she added that the contribution of the women’s movement in the Hindu Code Bill debate could hardly be ignored as women during the period took an activist stance and contributed in the debates over social legislations.45

WORKS ON FEMINIST ACTIVISM The third strand of work on the Hindu Code Bill may be categorized as works on feminist activism. Among the first generation Indian feminist leaders, Kamaladevi Chattopadhyay’s book Indian Women’s Battle for Freedom46 observed that in the formative process of social legislation, the women’s movement played a major role. But, she also felt that, ‘While big changes have taken place in our social thoughts and customs, the legal system has still to catch up.’47 Pratima Asthana in Women’s Movement in India48 has termed the women’s movement in the first phase as a city-based class movement

42

Ibid., p. 208. Madhu Kishwar, ‘Codified Hindu Law: Myth and Reality’, Economic and Political Weekly, Volume XXIX, No. 33, p. 2145. 44 Geraldine Forbes, Women in Modern India: The New Cambridge History of India, Cambridge University Press, New Delhi, 1998. 45 Ibid., p. 120. 46 Kamaladevi Chattopadhyay, Indian Women’s Battle for Freedom, Abhinav Publications, New Delhi, 1983. 47 Ibid., p. 125. 48 Pratima Asthana, Women’s Movement in India, Vikas Publishing House, New Delhi, 1974. 43

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rather than a mass movement.49 She recorded the efforts by the women’s movement in the twentieth century and observed: ‘The personal magnetism of some eminent women leaders like Sarojini Naidu, Rajkumari Amrit Kaur and Vijayalaxmi Pandit cannot be overlooked which in combination with other factors brought about a revolution in the socio-political status of Indian women.’50 Another contribution to the corpus of literature on the women’s movement in modern India is The Issues at Stake51 by Nandita Gandhi and Nandita Shah. Their work did not address the Hindu Code Bill debate, but recorded the legal campaigns by the women’s movement in the 1970s and 1980s to rectify the lacuna in the Hindu Code legislations of 1955 and 1956. Gandhi and Shah’s analysis attempted to demonstrate that the Hindu law reforms of 1955 and 1956 provided the benchmark for the second wave of legislative reforms since the 1970s. Thus, in the existing strand of literature, the Hindu Code Bill has been referred to, by a majority of commentators, as a process of law formation which became diluted, distorted, truncated and watered down. The most scathing critique came from the report prepared under the aegis of the Government of India, Towards Equality in 1974.52 The report stated, The review of the disabilities and constraints on women, which stem from socio-cultural institutions, indicates that the majority of women are still very far from enjoying the rights and opportunities guaranteed to them by the Constitution… The social laws, that sought to mitigate the problems of women in their family life, have remained unknown to a large mass of women in this country, who are as ignorant of their legal rights today as they were before Independence.53

This may tempt one to jump to the conclusion that the Hindu Code Bill made no lasting impact on Indian society. However, a more balanced approach would be to carry out a combined assessment of the short-term realities within the long term evolutionary process 49

Ibid., p. 128. Ibid., p. 108. 51 Nandita Gandhi and Nandita Shah, The Issues at Stake: Theory and Practice in the Contemporary Women’s Movement in India, Kali for Women, New Delhi, 1992 . 52 Forbes, Women in Modern India, p. 227. 53 Government of India, Towards Equality, p. 297. 50

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of social consciousness. Such an analysis requires both theoretical underpinnings and empirical foundations. The next two sections of the chapter are devoted to understanding the emancipatory process triggered by law formation initiatives. The emancipatory potential of law is discussed from two angles—theoretical framework and empirical evidence. Let us begin with the survey of existing theories surrounding law and social transformation.

LAW AND SOCIAL CONSCIOUSNESS: A THEORETICAL PERSPECTIVE The relationship between consciousness and law is important to understand the Indian context where religion exercises significant control over morality and gender rights. In such a society, law contextualizes our consciousness and social morality find their application in law.54 Thus, while morality is related to the question of justification, law is related to the question of application. Scholars of legal sociology have explored the relationship between law and morality in a number of ways. According to Max Weber (1864–1920), the law originated in religious traditions, but gradually emancipated itself from morality. Weber’s massive work on law gave rise to a single question, namely, how is legal domination in modern society possible? Since modern societies owe their origin to the rule of law, what is it that legitimatise such rule? Weber’s sociological explanation shows that as law differentiated itself from its religious foundations, it sought to free itself from questions of morality, seeking rather its legitimacy in reference to itself on the basis of properties inherent in the law. Law became a self-propelling force and an exclusive realm of professionals. This is the autonomous model of the process of legal formation.55 One of Max Weber’s most important contributions to an understanding of law was his emphasis on the ‘rational’ quality of legal institutions as they developed in modern Western societies.56 Weber stated that the development of law and procedure could be seen as passing through several stages ranging from ‘charismatic 54

Kaarlo Tuori, Critical Legal Positivism, Ashgate, Burlington, 2002, pp. 1–15. Max Weber, The Protestant Ethic and the Spirit of Capitalism, Unwin University Books, London, Eleventh Edition, 1971 (first Published in 1904), pp. 13–26. 56 Kaarlo Tuori, Critical Legal Positivism, pp. 46–51. 55

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legal revelation through law prophets’ up to the most advanced stage, ‘systematic elaboration of law and professionalized administration of justice by persons who have received their legal training in a learned and formally logical manner.’57 According to Weber, a legal system exhibits substantive rationality when it bases decisions on some general principles drawn from inside the legal system itself. The crucial characteristic of substantively rational law, in Weber’s scheme, is that decisions are no longer arbitrary, but are now at least grounded in some considerations of substantive justice. Another major sociological statement concerning law and social change came from Emile Durkheim (1858–1917). Durkheim’s basic thesis was that a society’s law reflects the type of social solidarity existing within that society. According to him, there are two basic types of social cohesion or solidarity: mechanical solidarity (which he saw prevailing in relatively simple and homogeneous societies, where cohesion was ensured by close interpersonal ties and identity of aims) and organic solidarity (that which characterizes more heterogeneous and differentiated modern societies, where functional interdependence is produced by the complex division of labour). Associated with these two forms of integration are two types of law, termed as repressive and restitutive law respectively. With society’s increased differentiation, the strong collective reaction to ‘offences’ becomes a less central feature of the legal system, as repressive law tends to give way to restitutive law, in which restitution to the injured person becomes a major way of settling disputes.58 Jurgen Habermas (b.1929), interpreting Weber, stated that Max Weber’s description of legal instrumentalism is one aspect of law formation. He wrote, Legal domination acquires a rational character in that, among other things, belief in the legality of authorities and enacted regulations has a quality different from that of belief in tradition or charisma. It is the rationality intrinsic to the form of law itself that secures the legitimacy of power exercised in legal forms59 57 Cary Boucock, In the Grip of Freedom: Law and Modernity in Max Weber, University of Toronto, Toronto, 2000, pp. 184–5. 58 Émile Durkheim, The Division of Labour in Society, tr. W.D. Halls, MacMillan, Basingstoke, 1984 (first published 1893). 59 Jurgen Habermas, ‘Law and Morality’ in S.M. McMurrin (ed.), The Tanner Lectures on Human Values, Volume VIII, University of Utah Press, 1988. See also R.L. Bernstein (ed.) Habermas and Modernity, Polity Press, Cambridge, 1985.

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The exercise of administrative power by the judiciary and the State, to Habermas, is not independent of social forces. Criticising Max Weber’s instrumentality of law, he observed that administrative power originated in communicative power, and the communicative power was derived from the common convictions of the citizens through the process of opinion formation in the public sphere. He observed, The concept of communicative power requires a differentiation in the concept of political power. Politics cannot coincide as a whole with the practice of those who talk to one another in order to act in a politically autonomous manner. The exercise of political autonomy implies the discursive formation of a common will, not the implementation of the laws issuing therefrom. The concept of the political in its full sense also includes the use of administrative power within the political system, as well as the competition for access to that system. The constitution of a power code implies that an administrative system is steered through authorizations for rendering collectively binding decisions.60

He added, This leads me to propose that we view law as the medium through which communicative power is translated into administrative power. For the transformation of communicative power into administrative has the character of an empowerment within the framework of statutory authorization. We can then interpret the idea of the constitutional state in general as the requirement that the administrative system, which is steered through the power code, be tied to the lawmaking communicative power and kept free of illegitimate interventions of social power (of the factual strength of privileged interests to assert themselves).61 Administrative power should not reproduce itself on its own terms but should only be permitted to regenerate from the conversion of communicative power. In the final analysis, this transfer is what the constitutional state should regulate, though without disrupting the power code by interfering with the self-steering mechanism of the administrative system.62

Habermas linked law and morality through his theory of communicative action. In the context of the debate regarding the proliferation of processes of legalization that have occurred in the modern, post-1600, period of social history, Habermas invokes 60

Jurgen Habermas, Between Facts and Norms, Polity Press, Cambridge, 1996, p. 150. 61 The parenthesis is part of the quotation. 62 Jurgen Habermas, Between Facts and Norms, p. 150.

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a unique structural form, ‘system’ and ‘lifeworld.’63 He provides a theoretical basis for the analysis of interaction between various spheres of social life under a capitalist social structure. According to him, the ‘lifeworld’ (meaning the individual’s experiences and interactions in society) gets differentiated in two spheres—private and public spheres. In a capitalist society, the private sphere revolves around the modern, restricted nuclear family, while the public sphere is linked to the space of political participation, debate and opinion formation. Both the spheres, in turn, are connected to the State and its official system. The private sphere, or the family, enters into exchange with the official sphere by offering specialised labour and by accepting monetary remuneration (in a process that is quite similar to Marxian labour theory of value, though exploitation is not the central concern of Habermas). It also sustains the system by creating demand for commodities and services. The public sphere also enters into a parallel process of interaction with the State. The relationship is manifested in the role played by agents as model citizens, taxpayers and participants in the political decision-making process. Gender relationships, rights and duties are shaped by the process of exchange in the public sphere. Thus, the public sphere moulds the private sphere. Much of Habermas’ analysis, including his well known contributions, Theory and Practice64 and The Theory of Communicative Action,65 are based on the dynamics of interaction and exchanges among individuals and groups in society. Unlike Marx, there is no pre-imposed social or class structure. In the framework advanced by Habermas, social groups and interaction within the public sphere evolve and change in a dynamic process. As social evolution becomes ever more complex, law can be introduced either communicatively or instrumentally, i.e., either through the lifeworld or, under the imperatives of the system, the State and the powerful. In that process, the lifeworld, through which culture, society, and personality are mediated, can either be expanded or colonized. Habermas coined the phrase ‘colonization of the lifeworld’66 to show how areas of social life can be subject 63 Jurgen Habermas, On the Pragmatics of Communication, MIT Press, Cambridge, Massachusetts, 1998, pp. 335–417. 64 Jurgen Habermas, Theory and Practice, Beacon Press, Boston, 1973. 65 Jurgen Habermas, The Theory of Communicative Action, Beacon Press, Boston, 1987. 66 See Kaarlo Tuori, Critical Legal Positivism, pp. 79, 114, 224.

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to new forms of domination and control under the rubrics of an instrumental, rather than a communicative rationality. In The Structural Transformation of the Public Sphere,67 Habermas suggests that forms of public subjectivity began to develop in the bourgeois societies of eighteenth-century Europe. Notions such as rational public opinion provided the bourgeois classes a legitimizing political ideology in the struggles against the absolutist State. Looking at the capitalist social structure, Habermas provides an ‘interactionist’ concept of law formation. He observes that law is made by the interaction of multiple social forces/actors seeking to use law for their own purpose. Law is not an immediate result of these conflicts, but is elaborated within a different sphere, which he terms as the production apparatus. As a result of the process, in the public sphere as also in the State, law acquires positivity and becomes a potent tool for society. The model advocated by Habermas overcomes the strong legal myth of a legislator, a mysterious creator of law in isolation from society. An advantage of the theory is its ability to explain the formation of law as a communicative and social process. At the same time, it throws up the possibility of organising a large scale communicative activity that may challenge or validate existing social norm. Jurgen Habermas attempted to explain the construction of power around social institutions.68 His analysis stressed that there was an association between the way social ideologies are formed and sustained and the power structure prevalent at any period of time. Legal reforms and social norms were, however, not direct outcomes of such a power structure, but through the process of communicative action. Thus, Habermas’ tool is the emancipatory potential of law. In his essay, The Liberating Power of Symbols, Habermas observed that effective participation in the social process results in meaning-laden experiences. Such experiences take symbolic form and create an emancipatory tract of symbolic developments within society. Symbols work their way through consciousness.69 Habermas noted, ‘My reflections point to the thesis that the unity 67

Jurgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society, MIT Press, Cambridge, MA, 1989. 68 Habermas, 1988, see also R.L. Bernstein (ed.) Habermas and Modernity, Polity Press, Cambridge, 1985. 69 Jurgen Habermas, The Liberating Power of Symbols: Philosophical Essays, tr. Peter Dews, Polity Press, Cambridge, 2001, pp. 10, 11, 13.

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of reason only remains perceptible in the plurality of its voices— the possibility of mutual understanding, which is now guaranteed only transitorily, forms the background for the existing diversity of those who encounter one another even when they fail to understand each other.’70 At the same time, law can create the symbolic, emancipatory force, stirring social consciousness. Law progresses in two directions, in its actual practice in the hands of the practitioners, and in the minds of the people. Therein lies, for Habermas, the emancipatory nature of law; ‘Enlightenment must be able to acknowledge its own roots in the first phobic stirrings of the civilizing process.’71 Theory thus suggests that the enactment of law can contribute significantly to the long term transformation of society through the alteration of social consciousness. The next section of the chapter tries to carry out an empirical validation of the broad hypothesis that the Hindu Code Bill had long term influences on the Indian social consciousness.

AN ATTEMPT AT EMPIRICAL VALIDATION With this theoretical backdrop, we move on to collate statistical evidence on the impact of Hindu family law reform on the status of women and more importantly, the perception about women in modern Indian mind. We first look at the changing status of women and gender consciousness in independent India. Thereafter, we try to locate the role of the State, the role of the Women’s organizations, the influence of market capitalism, consumerism and the media in transforming social perceptions. There has been a discernable improvement in the education of women in independent India. As more and more women started joining the formal education system, the female literacy rate increased significantly from a meager 7.93 per cent in 1951 to 54.16 per cent in 2001 (provisional Census data), while male literacy also jumped from 24.95 per cent to 75.85 per cent (Table 7.1). It may be noted that the gender gap in literacy rate did not shrink, though the level of literacy rate went up for both male and female population. 70 Jurgen Habermas, Postmetaphysical Thinking: Philosophical Essays, MIT Press, Cambridge, Massachusetts, 1992, p. 117. 71 Habermas, The Liberating Power of Symbols, p. 26.

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Table 7.1: Female Literacy Rate in India, 1901–200172 Total Literacy Rate

Male Literacy Rate

Female Literacy Rate

1901

5.35

9.83

0.69

1911

5.92

10.56

1.05

1931

7.16

12.21

1.81

1941

9.5

15.59

2.93

1951

16.67

24.95

7.93

1961

24.02

34.44

12.95

1971

29.46

39.45

18.72

1981

43.56

56.37

29.75

1991

52.21

64.13

39.29

2001

65.38

75.85

54.16

With growing literacy and educational attainment, women started participating in the political process (Table 7.2). The list of elected members of the first two Lok Sabhas show that many of the elected members were from women’s organizations like the AIWC. Highlighting this point, Towards Equality observed, ‘One of the common characteristics of women leaders in the political process during the period immediately after Independence was their experience in the participation in the freedom movement.’73 Table 7.2: Women in Indian Politics, 1952–7174 Contestants

Elected

Total

Women

1952

1874

43

489

14

1957

1519

45

494

27

1962

1985

69

494

33

1967

2369

67

520

30

1971

2784

85

518

21

72

Total

Women

Source: Government of India, Census of India, Various Years. Government of India, Towards Equality, p. 297. 74 Ibid., p. 288. Also data collected from the India Government Website www. nic.in. 73

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Women in the Labour Market The work participation rates of women improved but compared unfavourably with men in India (Table 7.3). The reason for this poor performance may be attributed to relative neglect of the girl child, which resulted in lower work participation rates. The lower work participation rate also originated from the non-inclusion of unpaid household work while calculating the work participation rates. Interestingly, the educational attainment did not translate into higher job participation. Educated women became ideal, educated housewives, and continued to be confined within the private sphere of the family. Thus, while out of hundred illiterate women, thirty six women were in the workforce, among the graduates, as late as in 1994, it was only twenty five per cent (Table 7.3). Table 7.3: Work Participation Rates by Educational Status, 1994 (per cent)75 Education

Male

Female

Illiterate

90.73

36.74

Primary

95.41

24.42

Middle

72.75

14.12

Secondary

65.3

13.19

Graduate and Above

79.97

25.22

All

82.22

56.77

Within the workforce, one observes significant gender disparities in wages (Table 7.4). The wage differential can be partly explained by educational disparity. But for similar levels of education, a considerable wage differential is observed. Did the efforts of a Welfare State contribute to a transformation in the status of Indian women? Sociological studies conducted during the period 1950s to 1970s, seem to present a mixed picture. Margaret Cormack conducted two studies to illustrate the change that took place in the lives and perception of young educated women in India in the 1950s. Cormac’s 1953 work, The Hindu Woman, was based on interviews of ten upper class, western educated women who accepted socially accepted rules within the countours of the family.

75 Source: World Bank, Reducing Poverty: Accelerating Development, Oxford University Press, New Delhi, 2000.

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Table 7.4: Average Daily Earnings: Gender Disparity, 1994 (in Rs per day)76 Rural Education

Male

Female

Illiterate

11.50

6.61

Primary

16.86

8.79

Middle

26.58

21.18

Secondary

35.92

26.53

Graduate and Above

35.92

26.53

All

21.50

12.83

Education

Male

Female

Illiterate

14.55

8.41

Primary

16.67

9.47

Middle

16.67

9.47

Secondary

25.26

22.31

Graduate and Above

40.15

31.00

All

24.57

19.59

Urban

These women found their greatest achievement within the family. ‘They had little personal ambition and were satisfied with their role prescription in society and family.’77 This led Cormack to the conclusion that, ‘Personal choice is not allowed in socially important areas, but outside those areas there is a fair amount of freedom. One’s personal happiness, success and security are much more a part of society than of one’s self. One is in fact, more a member of a social group than a self.’78 In She Who Rides a Peacock, another sociological survey of the Indian women college students in 1960, Cormack concluded that, The modern, urban, educated Indian woman has lost the joy of selfless service to a large extent—or, it may be that she is trying too hard to serve 76

Ibid. Margaret Cormack, The Hindu Woman, Indian Press: London, 1961, p. 189. 78 Ibid., pp. 152–3. 77

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in too many new ways. She may have too many and conflicting roles… The hunger for new knowledge, for new experiences, for new selfhood is too great.79

Two other books provided closer views of the Indian women in the 1960s. They were Aileen D. Ross’ study of one hundred and fifty-seven middle and upper-middle class families in Bangalore belonging for the most part to the Brahmin caste and M.S. Gore’s study of the Aggarwal family in the year 1960. The group interviewed by Ross maintained a strict division of labour between men and women: men’s area being work and administration and women’s house and children. However, in a few families educated wives helped their husbands in business, supervised the children’s education and at least in one family the husband helped the wife to some extent with household tasks even though he would immediately desist if surprised by some visiting relative. Wives were generally subordinate and submissive to their husbands. Ross observed, Power of the husband over the wife was shown in several cases which cited husbands who had slapped or beaten their wives. The fact that the interviewees were not particularly disturbed by these instances implies that it is not an unusual practice for husbands to punish their wives in this way.80

In a similar vein, Gore observed the male domination of the Indian society in the 1960s, In the division of authority between men and women the relation of the joint family to the larger social system becomes important. The fact that the male in the society plays a major role in the occupational system automatically makes him a focus of power in the family system as well. The woman plays a subordinate role in the occupational sphere. In the traditional Hindu joint family the relation of the woman to the occupational sphere was effectively cut down by excluding her from inheritance or ownership of property…. The hypothesis that woman’s lower status in the family is linked to her general exclusion from the occupational sphere is supported in the Indian context by a comparison with the woman from lower-caste groups. In these groups, woman participates actively in the occupational sphere; the differentiation in 79 Margaret Cormack, She Who Rides a Peacock, Social Change, London, 1961, p. 118. 80 Aileen D. Ross, The Hindu Family in its Urban Setting, Toronto, 1961, p. 57.

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status based upon the right to hereditary property is largely unimportant, and the woman enjoys greater freedom—if not equality.81

The social perception survey conducted by Towards Equality in 1974 was the most comprehensive, based on the responses of 5603 respondents, seventy-five per cent of whom were female.82 Fifty-four per cent of the respondents belonged to the rural areas and eighty-one per cent respondents in the survey were Hindus.83 The survey brought out some interesting findings about the social roles and social perception of women after almost three decades of Independence. The survey indicated that there was very little sharing of work and the major load of the household work was performed by the female members of the family.84 Among the different kinds of tasks required to be done in the household, the more time consuming chores (e.g. sweeping and cleaning the house, cleaning the utensils, washing clothes and fetching water) were done by the women.85 Monetary transactions and making purchases for the household was the only activity which was controlled by men. Rural families gave a larger share of the household tasks to the female members. Families from the lower caste groups demonstrated this pattern to an extent greater than the higher castes.86 While the major share of household work was with the female members, they did not have the matching decision-making powers. Comparative importance of the male and female members in decision-making was found in three areas: amount to be spent on different items, where exactly to go and what exactly to do; and educational career of children, marriage of children. For the first two items of decision-making, the percentage of ‘equally shared’ responses was quite high. But while decisions regarding education, and ‘major capital investments’ were taken by ‘entirely male,’ ‘expenditure on food and on household necessities’ was decided by the female members.87 A larger share of the male members in family decision-making was revealed more 81 M.S. Gore, Urbanisation and Family Change, Popular Prakashan, Bombay, 1968, pp. 12–13. 82 Government of India, Towards Equality, p. 394. 83 Ibid., p. 395. 84 Ibid., pp. 399–400. 85 Ibid., pp. 399–401. 86 Ibid., p. 401. 87 Ibid., p. 402.

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clearly with regard to decisions of far-reaching importance, like the choice of children’s educational career and their marriage. Within this overall framework, the female members had slightly more powers with regard to decisions affecting the daughters.88 Differential treatment of the girls started right from their birth as evidenced in the family’s reaction to the birth of a female child. A significant percentage of respondents did indicate that boys obtained better treatment than girls with regard to education and food—the discrimination was markedly higher in rural areas.89 Most families also followed the pattern where the male members are first served with meals and the women eat later. The percentage of urban respondents who said that this practice is followed, was also quite significant. The prevalence of purdah persisted for wives in the presence of family elders, in the presence of outsiders, and when the women went out. While purdah was practiced exclusively among the northern States, the percentage was found to be higher in Haryana, Himachal Pradesh, Manipur, Rajasthan and Delhi. The female members also followed restrictions with regard to conversations with some family members and with their husbands in the presence of elders.90 Even with the above constraints on Indian women, the survey indicated that the social perception underwent significant transformation, when contrasted with the evidence gathered by the Hindu Law Committee. For instance, most of the respondents were opposed to a girl’s marriage before she attained puberty, though such a percentage was lower in rural areas.91 With regard to dowry, almost eighty per cent of the respondents said that the practice was undesirable and that it should be stopped. This view was expressed by a higher percentage of male respondents.92 Widow remarriage was approved by a majority of respondents, including the Hindu caste groups, particularly from the upper and middle strata.93 Majority opinion, both male and women, were against polygamy.94 On the important issue of a daughter’s share in the parental property, the percentage of respondents who were prepared to allow ‘some share’ 88

Ibid., p. 398. Ibid., pp. 408–9. 90 Ibid., pp. 410–5. 91 Ibid., p. 418. 92 Ibid., p. 419. 93 Ibid., pp. 420–1. 94 Ibid., p. 418. 89

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was sixty-eight per cent but, only fifty-eight per cent were in favour of ‘equal share’ with the sons.95 Attitudes on work and employment indicated that the respondents were generally in agreement that ‘women should work’, that they can do the work which men can do, that the women should get equal wages and they should also have control over their earnings.96 The survey also revealed social awareness towards the education of girls. There was a clear indication that a consciousness about girls’ education was present among the respondents, most of whom agreed that ‘girls should get the same type of education as boys.’97 Separate educational institutions for girls were favoured by the respondents. A majority disagreed that women should vote according to the wishes of the male members and that they should not become members of political parties.98 On the whole, the social perception survey conducted by the report Toward Equality indicated a slow but perceptible change in the social perception of the feminine by the 1970s. The consciousness of both men and women underwent significant transformation, particularly when seen against the evidences collected by the Hindu Law Committee in 1945 and the social psyche mirrored in the press reports in the 1940s. Thus, the deeply entrenched patriarchal orthodoxy was slowly but steadily making way for a more rational and liberal view on gender rights and equality. Since the publication of the report Towards Equality, three decades have passed. To understand the changing social perception of the feminine, a random sample survey of matrimonial advertisements in The Times of India, Mumbai in 2001 has been conducted in this book. A uniquely South Asian if not Indian phenomenon, these advertisements serve as a facilitating process for arranged marriages. They are essentially information sharing communicative processes using the media, where individual and family attributes of the prospective brides and grooms are disclosed to the marriage market. By looking at the information content on the desired attributes of femininity, the book tried to assess whether the image of the feminine in the Indian mind has undergone change since the 1974 survey. The desired qualities for a prospective bride in marriage identified in the sample survey are presented below. 95

Ibid., pp. 422–4. Ibid., pp. 438–40. 97 Ibid., p. 441. 98 Ibid., pp. 441–50. 96

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Table 7.5: Desired Feminine Attributes in Matrimonial Advertisements, 200199 Desired Feminine Qualities in Matrimonial Advertisements

Desired Attribute Specifically Mentioned in Number of Samples Selected

Beauty Height Fair Complexion Earning Capacity/ Income Educational Attainment Age Family Background Ownership of Property Caste specifications Culture

178 96 133 59

Nubmer of Advertisements that Did not Mention the Attribute as Desired Quality for Prospective Brides 22 104 67 141

Percentage of Sample Mentioning Desired Feminine Attributes in Matrimonial Advertisements 88.89 48.15 66.67 29.63

104

96

51.85

37 81 7

163 119 193

18.52 40.74 3.7

67 74

133 126

33.33 37.04

100 90

88.89

Proportion of Sample

80 66.67

70 60

51.85

48.15

50

40.74

40

33.33

29.63

30

18.52

20 10 0

37.04

3.70 Beauty

Height

Fair Income Education complexion

Age

Family Property background

Caste

Culture

Female Attributes

Figure 7.1: Female Attibutes in Matrimonials, 2001

It is well known that marriage in India is a family affair and arranged marriages are arrangements between elders in the family, where the marriage partners may or may not have a say. Therefore, it is of little wonder that the choice of a bahu (the prospective bride set to enter the family of the groom) in the family was influenced 99 Source for Table 7.5 and Figure 7.1 is The Times of India, Mumbai, January to June, 2001, Sunday Matrimonials. The size of the sample is 200. Random sampling method was applied in selecting the sample for the analysis.

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by the prevalent patriarchal attitude. The prevalence of patriarchal value systems ensured that the desirable feminine attributes have a strong linkage with the deep-rooted patriarchal perceptions. This was evident in the hierarchy of desirable attributes of prospective brides as it emerged from the survey, which included, among others, attributes such as beauty, fair complexion and height. In a majority of the advertisements (89 per cent), Indian families wanted the bride to be beautiful, a criterion that clearly dominated the matrimonial pages in the early part of the new millennium. Indian society also revealed a strong preference for fair complexion (67 per cent) and of an above average height (40 per cent). Beyond the decorative content of women’s existence, new dimensions of desirable feminine characteristics were also seen to be gaining ground. Every alternate family desired to have an educated wife for their son, owing to a host of factors, including compatibility with husband and family, presentability in social circles and potentiality to support family earnings. Almost one out of three families wanted or was agreeable to accept an earning bahu. With the emergence of a sizeable middle class with unfulfilled aspirations, an earning housewife became a means to move up in the social ladder defined by consumerism. Thus, patriarchy started shedding traditional inhibitions to permit the ‘pativrata bahu’ to explore the public sphere. Women were permitted to explore the public sphere without dispensing their household chores. More and more Indian families, particularly in the urban middle class segment, started accepting the earning capacity of a bride as an added advantage. With the onset of liberalization, such trends have become increasingly visible and the Indian patriarchy is headed for further adjustments with its own notions of femininity. Thus, the study of matrimonial advertisements in the media revealed the changing notions of femininity and its negotiations with economic realities and patriarchal value systems. The survey of social perception and public opinion as submitted in Mitter’s note of dissent to the Hindu Law Committee, the survey by selected sociological researchers in the 1950s and 1960s, the information on social perception provided by the report Towards Equality in 1974 and finally the survey of a sample of matrimonial advertisements carried out by the book of 2001, enables us to examine the changing notion of femininity and gender roles in Indian families. It shows the process of changing social perception of women in independent India. The change has been slow, but

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discernible, from the traditional homely wife to a bahu who is educated, and preferably working.

TRANSFORMATION IN GENDER CONSCIOUSNESS IN INDEPENDENT INDIA The slow but perceptible transformation in gender consciousness was influenced by a variety of factors. The Hindu Code Bill was one of the factors that contributed to the evolution of gender consciousness in independent India by enabling and empowering Indian women and providing a benchmark below which orthodoxy was no longer able to drag down the social consciousness. The social consciousness was influenced by a host of factors. An assessment of the impact of the Hindu Code Bill, therefore, cannot be complete without looking beyond the Code. This is done by understanding the historical evolution of social forces that have a bearing on the patriarchal norms within family and society. We focus on three key forces, the role of the State, the second wave of the women’s movements for legal and social rights, and the contribution of the media, all of which basically contributed towards the changed social perception of women in India.

Role of the State Among the forces that shape social perceptions, the role of the State is crucial, more so if it is pro-active in social issues. In the context of developing societies, the role of the State becomes vital as it shoulders the responsibility of being the principal agent of social change to attain a more equitable social order. The Indian State’s definition of women’s place in society was premised on a welfare centric view of women’s problem, and therefore focussed towards creation of opportunities for women. The State took a liberal feminist viewpoint and co-opted the women’s movement by taking initiatives similar to that of the women’s organizations. A document by the National Planning Committee submitted in 1940 reflected clarity of understanding of the ‘problems of Indian women and its deeply-entrenched roots in the traditions of the patriarchal family and marriage systems.’100 The 100 Nirmala Banerjee, ‘Whatever Happened to the Dreams of Modernity?: The Nehruvian Era and Women’s Position’, Economic and Political Weekly, Volume XXXIII, No. 17, April 25, 1998, p. WS-3 .

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Committee report touched upon crucial aspects of women’s lives such as women’s exploitation in the family. The Committee felt that as compensation for work at home, the women should get control over a share of the family income and should be entitled to a share of the husband’s property. This document was thus clear in its view that gender discriminations are inherent in the existing patriarchal social structure and power distribution within the family. The responsibility of correcting gender imbalances in independent India fell on the State. The major factors which prompted the State to assume a pro-active role in socio-economic affairs were: first, the urge to catch up with the level of development of the advanced world, second, inspiration from the success stories of planned economies like the Soviet Union, third, the adverse consequence of the Great Depression of the 1930s and the rise of Keynesianism,101 and finally the domestic realities of widespread illiteracy and poverty, low level of human development, and lack of physical and social infrastructure. In relation to gender justice, the State assumed the responsibility of women’s upliftment. The passage of the Acts that were the broken pieces of the Hindu Code Bill led the State to proclaim that the basic legal platform has been created for ensuring gender equality. To give women real power, the State embarked upon planned efforts towards the education and training of women and attempted to ensure greater participation of women in the organized workforce. The State policy of reservation for women also aided this process. Thus, immediately after Independence, there was an institutionalised attempt at enhancing the workforce participation of women. The First Five Year Plan talked about the problem of women and that women are allowed ‘to fulfill their legitimate role in the family and the community’102 and for this ‘adequate services need to be provided for their welfare.’103 During the beginning of planning, the report acknowledged the important role played by the women’s movement in pre-Independence India in the following words,

101 Keynes’ strong critique of the alleged optimal characteristics of market economies and his advocacy of planned state intervention in the General Theory of Employment, Interest and Money became the major ideology of economic policymaking in the middle of this century in many countries. In John Maynard Keynes, General Theory of Employment, Interest and Money, Harcourt, New York, 1935. 102 Government of India, Planning Commission, First Five Year Plan, Chapter 26. 103 Ibid.

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The major burden of organising activities for the benefit of the vast female population has to be borne by private agencies which have already done considerable work for the promotion of women’s welfare. The AIWC has 37 branches and 300 sub-branches in the country. The National Council of Women in India has 12 major branches,… There are innumerable organizations all over the country which have done valuable work for women.104

The State recognized that it has a major role to play in the provision of guidance and support to these organizations. The Second Plan stated, As part of the First Five Year Plan the Central Government set up a Central Social Welfare Board (CSWB) with the object essentially of assisting voluntary agencies in organising welfare programmes for women and children and handicapped groups … The Board has in turn set up State Social Welfare Boards throughout the country. The CSWB has assisted 2128 institutions of which 660 are women’s welfare institutions. The grants given by the Board are intended to assist existing voluntary organizations in consolidating their activities.105

In the same vein, the Third Five Year Plan commented, A stage has reached in the development of welfare services when, for the better utilization of the available resources and improvement in the quality of services offered, it is essential that the various agencies should achieve a larger measure of co-ordination among themselves. … At the same time, the voluntary organizations should develop along specialised lines, each selecting a limited area of activity in which its workers gain experience…106

Thus, by the Third Plan, the all India women’s movements had become State-sponsored specialised agencies that catered to the needs of the women and the disadvantaged. Even the thinking of all India women’s organizations was, by then, aligned to the viewpoint of the State. Following the footprints of the State, the AIWC felt that, ‘all the demands made by the AIWC had more or less been worked into the Constitution.’107 Also, many of the women leaders of AIWC were included in the bureaucratic set-up. Vijayalaxmi Pandit 104

Ibid. Government of India, Planning Commission, Second Five Year Plan, Chapter XXIX, p. 602. 106 Government of India, Planning Commission, Third Five Year Plan, Chapter XXV, p. 717. 107 Aparna Basu and Bharati Ray, Women’s Struggle: A History of the AIWC, 1927–1990, Manohar Publications, New Delhi, 1990, p. 100. 105

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was India’s Ambassador to the Soviet Union, Sarojini Naidu was the Governor of Uttar Pradesh, Rajkumari Amrit Kaur was Minister for Health at the Centre, and Hansa Mehta was a member of the UN Commission on Human Rights among others. By the Seventh Plan, the State domination of women’s activities was completed. In 1985, a separate department on women’s welfare was set up. A National Perspective Plan for Women (1988–2000) provided direction for all round development of women.108 Such co-optation of the Indian women’s movement by the State enabled women to work within the state machinery but weakened their collective bargaining power for the implementation of legal reforms. Very often, the State is blamed for not focussing on the central issue of patriarchal subjugation of women, and for taking a vague posture, equating women’s problems with general social backwardness. Nirmala Banerjee has referred to this as ‘the policymaker’s descent into a safe and innocuous welfarism.’109 The basis for the critique lay in inadequate implementation of laws for women in independent India. With many women leaving the women’s organizations, ‘disillusioned and disgusted at the bitter debate and watering-down of the Hindu Code Bill,110 and several others becoming part of the State machinery, the unified voice of the AIWC faded dramatically by the late fifties.’111 The economic and social crisis of the 1960s resulted in the birth of a number of radical women’s organizations, more often than not with a leftist frame of mind. The failure in the economic front gave birth to a large number of protests against the prevailing development paradigm where women participated in large numbers. In the seventies, a large number of women’s organizations emerged, with diverse ideological inclinations. A key concern of the new women’s movement was and still remains the implementation of law. The presence of physical and mental violence, desertion by husbands, inability of Indian women to gain custody of their children and lack 108 Government of India, Planning Commission, Seventh Five Year Plan, Volume II, and Government of India, Planning Commission, Eighth Five Year Plan, Chapter 15, p. 392. 109 Nirmala Banerjee, pp. WS-3-4. 110 Nandita Gandhi and Nandita Shah, The Issues at Stake, Kali for Women, New Delhi, 1992, p. 18. 111 The two organizations of the 1950s, the National Federation of Indian Women set up in 1954 and the Samajwadi Mahila Sabha established in 1959, were nowhere near AIWC in terms of popularity.

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of control over property provided evidence to demonstrate that law formation did not lead to enhancement of rights for Indian women. As Maitrayee Mukhopadhyay observed, We assumed that the Hindu Code Bill (HCB) gave Hindu women equal rights with men in the family. Surely you do have a right, we said, to an equal share of your father’s property and the right of maintenance and alimony from your abusive husband. You don’t have to be homeless and indigent if you decide to leave your marriage. We told women who were battered that the State had changed the criminal laws and the police were now armed with draconian measures, including arrest of the abusers. However, in the decade-long struggle to ensure these rights, we repeatedly found that the state machinery was ill-equipped to enforce women’s rights as citizens when the violation happened. … We blamed the inefficiency of the courts, the corruption in the police, the poor education of the lawyers and our own incapacities. But none of this helped answer a fundamental question that had been lurking in our minds. Looking back it seems as though we were afraid to verbalize it. Why was it so difficult to actualize women’s rights as citizens? Why was it next to impossible to disentangle a woman’s identity as subject/citizen imbued with rights from that of her identity as daughter, sister, wife and mother?112

The re-emergence of women’s organizations in the 1970s was thus an outcome of continued discrimination against women in Indian society. Women in several parts of India in the 1970s and early 1980s raised voices of protests against tardy implementation of legal provisions for women in cases of dowry and domestic as well as societal violence against women including rape and alcoholism. However, this time, instead of a unified movement the protests were fragmented, issuecentric and localised. Gandhi and Shah in The Issues at Stake describe the fragmentation of the women’s movement as, The Nationalist phase of the Indian Women’s Movement (IWM) has invariably been portrayed through the growth, composition and issues taken up by the AIWC. This was possible because it was a national federation of all women’s organizations and the only collective organ of the IWM. Today, there is no such body or platform. Neither is the leadership being provided by older organizations. Each organization in its own way contributed to the making of an issue and campaign…. No one organization or even a few can claim to be the spearheads or ‘stars’.113 112 Maitrayee Mukhopadhyay, Legally Dispossessed: Gender, Identity and the Process of Law, Stree, Calcutta, 1998, p. 4. 113 Nandita Gandhi and Nandita Shah, The Issues at Stake, p. 29.

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Nonetheless, the second wave of feminism, in all its diversity, raised its voices against various atrocities against women. In certain cases, such movements led to important amendment of laws that were beneficial to women. On the whole, the struggle of women on the legal front. It was a battle to improve upon the provisions accepted from the Hindu Code Bill. The Hindu Code Bill thus provided the basic platform for improvement, it was not possible to move backwards, the only way was forward. Thus, the successes in achieving legal rights for women in post-1956 India clearly demonstrate the benefits of having the Hindu Code Bill as a benchmark.

WOMEN’S MOVEMENT AND SOCIAL CONSCIOUSNESS IN INDEPENDENT INDIA The women’s movement that was totally consumed in the 1950s and 1960s by the new State policy, resurfaced in the 1970s and 1980s. The women’s movement in the 1970s grew out of anger and frustrations that were fuelled by the lack of implementability of the Hindu Code Bill enactments. After Independence, there was an increase in the number of women’s organizations which were State-supported. Reform programmes were launched by the State to improve the conditions of women. The move enabled the State to ‘co-opt’ the women’s movement and thus to reduce their confrontationist attitude. At the same time, many women left the women’s organizations either expecting the State to take over their battle or being disgusted by the manner in which the Hindu Code Bill was diluted. As a result, the unified voice of the AIWC faded. The initial enthusiasm about a planned development process in the Nehruvian model also reduced antagonism towards the State. But by the mid-1960s, after the failure of the Third Plan, gender neutral voices of protest against the prevailing model of development began to reemerge. Students in Gujarat started protesting against inflation in the early 1970s, and Jayaprakash Narayan launched an antiprice rise and anti-corruption movement in Bihar (1974). Trade Union alliances also marked this phase. Women’s participation in this predominantly issue-based agitation was significant. These movements, though not movements for women’s rights, created a shared consciousness that propelled another wave of women’s struggles for their own rights. Since 1975, the women’s movement started becoming active again. In 1975, the Lal Nishan Party (LNP), a splinter group of

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the Communist Party of India (CPI), introduced a joint women’s conference. Small camps were held in Sahader, Maharashtra, against wife beating and alcoholism. In Andhra Pradesh, the Progressive Organization for Women (POW) campaigned against dowry and sexual harassment. In the 1980s, a number of women’s organizations mushroomed in different parts of the country and launched determined attacks on various forms of violence against women including, rape, wife beating, dowry deaths, harassment at work and projection of women as sex objects by the media. Of them, the prominent organizations were Stree Mukti Sangathan and Forum Against Rape in Bombay, Purogami Samgathane in Pune, Stree Shakti Samgathane in Hyderabad, Stree Samgharsa Samiti and Mahila Dakshata Samiti in Delhi, Pennurimai Iyyakam in Madras and Vimochana in Bangalore. Women’s newsletters and magazines e.g., Baija in Marathi, the Feminist Network in English and Manushi in Hindi and Bengali (and, later on, in English) started gender-based discourses. During this period, women’s organizations became more interested in the implementative aspect of the law rather than reform of the law itself. In this phase, the women’s movement was an amorphous, multiclass, sporadic, issue-oriented and autonomous with various strands of ideological thought. In the first half of this century, the women’s movements were mostly elitist and national in character. In the post-Independence period, this unified character in the women’s movement disappeared and for the time being it seemed that there was hardly any relevance for women’s movements. Retention of a secular framework, the planned development strategy and a large number of progressive legislations raised the hopes for a gender neutral social structure. The gender-neutrality myth lasted through the 1950s and 1960s and the co-option of the women’s movements by the State planning led to a noticeable dilution in women’s battles against patriarchy. However, since the 1970s, the Feminists started organising protest campaigns locally on issues such as dowry deaths, rape etc. The difference with the earlier phase was quite apparent: these movements were extremely localised and were predominantly issue-based. As observed earlier in this chapter, another transformation in the role of women’s movement was its stress on implementation since the 1970s as against the stress on legal reforms in the earlier decades.

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As the women’s movements since the 1970s show, there was a noticeable diversification of instruments of struggle in contrast to the colonial era. In the colonial era, the women’s movement was mainly elitist in character and the protest mechanisms included conferences, debates, protest letters to the authorities and so on. Participation of women in the post-Independence women’s movements was more broad-based, in the sense that the participants came from different socio−economic strata. The modes of protest also saw distinct trends towards diversification. In the anti-arrack movement in the late 1980s women chased excise department cars and liquor contractors with brooms and chilli-powder. In a large number of post-Independence agitation, atrocities committed by government officials were the focus of attention. Instances of rape by police and jail authorities were strongly protested against by the women’s organizations. The most striking examples of determined women’s struggles during this phase were the trio of the anti-dowry campaign in Delhi, the anti-rape campaign of Bombay and the anti-arrack campaign in the Nellore district of Andhra Pradesh. A look into the evolution of these three movements may be useful in understanding the struggle of women’s organizations to enforce implementation of gender related laws. The three women’s movements demonstrate processes through which society influenced the evolutionary process of family laws in independent India.

Anti-Dowry Campaign The first protests against dowry were voiced in 1975 by the POW in Hyderabad. In 1977, another anti-dowry campaign was started in Delhi. The Mahila Dakshata Samiti, formed in 1977 investigated some of the dowry related deaths and in their report stated that they were, in fact, murders. This sparked off a sustained agitation against dowry and dowry-related crimes. A Delhi-based feminist group Stri Sangharsh, showed that a majority of the dowry murders were committed by middle class entrepreneurial families who killed so that their sons could remarry and amass more wealth. The Stri Sangharsh gave the leadership to the anti-dowry campaign in Delhi, joining hands with the Indraprastha College Women’s Committee, Progressive Students Organization, and the Nari Raksha Samiti. One of the main thrusts of the anti-dowry campaign in its early stages was on humiliating the in-laws and the husband, in the form of social boycott, public demonstrations, and sit-downs in front of the husband’s home,

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wall-writing and poster-sticking in the neighbourhood. At a broader level, efforts were made to arouse consciousness through debates, seminars, poster competitions, plays and mass pledges against taking dowry. The campaign also gave birth to a host of appealing slogans which captured the imagination of the public.114 The campaign demanded that cases of mysterious deaths of married women should be investigated by the police thoroughly, and highlighted the inadequacy and male bias of the laws and procedures of the courts. The year after the agitation began, the government started to legislate against dowry murders. In fact, in 1978, Charan Singh, then Prime Minister suggested measures to stop the ‘maltreatment of women for dowry’ would be effected soon. Since the beginning of the eighties, the campaign started showing some results. In November 1980, the Central Government had ordered compulsory investigation and post-mortem in cases of married women dying under unnatural circumstances during the first five years of marriage. In December, 1983, the Criminal Law (Second Amendment) Act, 1983 made dowry a cognizable, nonbailable offense, punishable by up to three years imprisonment and a fine. Cruelty was redefined as mental as well as physical harassment. Secondly, Section 113-A of the Evidence Act was also amended so that the court could draw an inference of abatement to suicide. Finally, the Act amended Section 174 of the Criminal Procedure Code, making a post-mortem examination compulsory on the body of a woman who dies within seven years of marriage. These were some of the positive legal reforms achieved by the women’s campaign against dowry.

The Anti-Rape Campaign Rape is one of the most common yet underreported of crimes against women in India. Partly due to the changing social attitude which gave women courage to report crimes, the reported cases have seen an increase from 2,562 in 1972 to around 14,277 in 1991. The scale and frequency of rapes by government servants 114

A small sample of them were: Stri par na ho atyachar, hum padosi jimmevar (the women should not be harassed, it is we neighbours who should be responsible); Nek gharon ki yeh pahechan, bahu beti ek samaan (good houses are those where the daughter and daughter-in-law are treated equally); Tilak nahi, dahej nehi, shadi koi vyapar nahi, Kharida hua Jeevan Sathi ab hame sweekar nahi (no to the tilak, no to dowry, marriage is not a trade, we will not accept a life partner who has been purchased).

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(mostly the police) being very high, the agitation against rape in the initial stages focussed upon rape by government servants. The rape of Rameeza Ben by some policemen in Hyderabad sparked off an agitation. When despite the Commission of Enquiry establishing the policemen’s guilt, they were acquitted by the sessions court, protests came from the feminist groups alone, viz., Stri Shakti Sangathana in Hyderabad, and Vimochana as well as the Women Lawyer’s Association in Bangalore. In 1979, there were demonstrations by women against incidents of police rape in Sangamner, Patialia, and Malwe village of Karnataka and in Guwahati. As part of the Jharkhand movement, a move to campaign against mass rape was started in Santhal Pargana of Bihar. Until 1980, these were isolated campaigns. In 1980, an open letter by four senior lawyers against a judgment in a case of police rape in Maharashtra sparked off agitations by several feminist groups, spearheaded by feminists in Bombay.115 In February 1980, the Bombay feminist group, Forum Against Rape (later Forum Against Oppression of Women; with a broader focus) decided to campaign for the reopening of the Mathura rape case, and wrote to feminist groups all over the country for demonstrations on International Women’s Day, March 8, 1980, to demand a retrial. Feminist groups came together across the country to co-ordinate a campaign on March 8, 1980. There were women’s demonstrations in Bombay, Delhi, Nagpur, Pune, Ahmedabad, Bangalore and Hyderabad, demanding a retrial and more importantly changes in the laws relating to rape. As a consequence, three years later, the government amended the criminal law through the Criminal Law Amendment Bill. It defined more clearly ‘custodial rape’ and treated it as a more heinous crime, with a mandatory punishment of 10 years, trials in rape cases to be made in camera and the onus of proof to be shifted on to the accused. Thus, the women’s movement treated law formation and implementation as the core part of their agenda and recommendations.

Anti-Arrack Agitation in Andhra Pradesh Arrack, the country spirit or the poor person’s drink, was the source of almost three fourth of the total excise revenue in Andhra Pradesh. Arrack in sachets was being delivered to the doorsteps of people by peddlers on foot and bicycle. The consumption of arrack not only eroded the family budget, it also disturbed family harmony 115

The highly publicized Mathura rape case.

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as it was linked to domestic violence (wife-beating). In early August 1992, in the remote village of Dubagmata of Nellore District, women protested against the sale of arrack. There were agitations also in the north Telangana districts like Warangal, Karimnagar and Adilabad. Village committees were formed which were primarily led by the women of the poorer Dalit households. These village committees persuaded the men folk to take an oath in the village temple to stop drinking arrack. In village after village, women squads discovered three instant weapons of struggle⎯broom, chili powder and fire. They attacked the contractors’ dens and set fire to arrack barrels. At the same time, various Leftist and radical Left groups organized street plays, rallies, public meetings and door-to-door campaigns in the villages. Women also stalled auction sales of arrack organized by the excise department. Despite the determined bid by the state to dilute the movement, the women’s organizations succeeded in putting their message through. The fear of losing votes forced political parties to announce prohibition of arrack sales at a great loss to the exchequer in 1994. An administrative reform was thus forced upon the government by rural women of India.

MEDIA AND GENDER CONSCIOUSNESS With the rapid expansion of the media and consumerist capitalism in the 1990s, the feminist battle outgrew the legacy of the Hindu Code and transcended to a totally new platform, with significant impact on feminist consciousness in India. Since the 1990s, the role of the State in society diminished gradually in certain spheres with the entry of market forces in many areas of the socio-economic system. Free market ideology did more than just allocate goods and services through the process of exchange. It influenced the evolution of values, tastes, and personalities.116 On the positive side, media has brought the women’s problem into the forefront by giving it publicity.117 The role of media in 116 Samuel Bowles, ‘Endogenous Preferences: The Cultural Consequences of Markets and other Economic Institutions’, Journal of Economic Literature, Volume XXXVI, March, 1998, pp. 75-111. 117 In 1987, after the Roop Kanwar tragedy in Rajasthan, press reaction was professional and sophisticated. The press unequivocally condemned sati although several fundamentalist groups tried to justify its practice. The press coverage of sati revealed the willingness of women activists and researchers to write in the

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arousing social consciousness can hardly be ignored or minimised.118 It is also widely accepted that the media has provided an important ‘space’ for women’s struggle against patriarchy. While reflecting the dominant cultural ideology, it has at the same time provided women some space to express their anguish and dissatisfaction over the injustices faced by them. However, examination of the woman’s image in the media reveals that even while giving some coverage to the women’s question, the women’s role has been projected as one whose horizon is her family. Ammu Joseph and Kalpana Sharma elucidate, This is done subtly as well as blatantly, consciously as well as sub consciously, by presenting contradictory images, ignoring the women’s dimension in some issues, twisting the question by reinforcing conservative values, misrepresenting feminism reducing serious issues to jokes etc. In fact, in spite of the growth in the number of women-related articles, a close study of the content reveals that very few articles really questioned the fundamental patriarchal structure of the Indian Society or the injustices in the family.119

Consequently, mass media became the vehicle of patriarchal ideology, and colluded with market forces, leading to the mainstream press and put forward feminist views on the issue. This awareness on part of the feminist movements about the importance of press as a medium of transmission of ideology also benefitted the women’s movement and forced the State to take note of the events happening in the country. Since state action/response has been mostly legislative, press undoubtedly played an important role in influencing social legislation. 118 Dowry-related atrocities, for instance, started getting increased coverage as a social malaise affecting many parts of the country. Bombay-based papers started covering the news in greater detail. Thus, what is discernible from the media coverage of dowryrelated atrocities is that very gradually women started getting some space, though very small compared to the total quantum of news in the dailies. Also, media coverage of the anti-rape campaign was quite strong, as several women journalists played a significant part in the movement against rape. Such a connection led to serious media attention in the wake of the anti-rape campaign. The Indian Express gave front page coverage to the formation of Bombay-based Forum against Rape (February 6, 1980). All the major newspapers published editorials and threw up important pieces of information. However, such reports were mostly descriptive in nature, giving graphic details of the incident. Some serious pieces, however, helped in building up public consciousness and exerted pressure on the government to bring out legislative changes. 119 Ammu Joseph and Kalpana Sharma, Whose News, Sage Publications, New Delhi, 1994 provides a detailed account of media’s role in independent India.

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propagation of the ‘beauty myth.’120 Beauty queens, film heroines and advertisement models have all contributed to the creation of the ‘feminine’ image. The contribution of mass media, more than bringing gender issues into the public domain, has been thrusting a generation of women and girls into a patterned consciousness which serves to strengthen patriarchy and divert from real issues of violence and oppression of women. Margaret Gallaghar has described the process of cultural imperialism unleashed by the freemarket economic policies adopted by many countries around the world in recent years as ‘lipstick imperialism.’121 The Government of Maharashtra document on ‘Policy for Women’ stated, The tremendous impact of the media on society has to be taken into account while planning social change and necessary measures instituted for counter balancing its negative impacts: specially in relation to woman’s role and standing in society, there is adequate evidence to indicate that both the audio visual and printed media only serves to strengthen and reinforce existing stereotypes.122

Unbridled growth of the media since the 1990s created a new platform to debate gender issues surrounding law. While it contained in itself the potential to contribute to gender equality, the content of media was influenced by existing power structures and entrenched patriarchal biases.

WIDENING AMBIT OF FAMILY LAW IN MODERN INDIA The interplay of social forces did pave the way for the evolution of family laws in India. In independent India, the legal reforms surrounding the family progressed in a piecemeal manner with the legacy of the Hindu Code Bill as a benchmark. Though there remained a chasm between the rules and its implementation, the symbolic presence of the Hindu Code Bill provided a critical thrust to the reform process and also acted as a hedge against reversals and rise of reactionary views that had restricted gender relations for centuries. Two areas of family law evidenced legislative activity 120

Naomi Wolf, The Beauty Myth, Perennial Press, New York, 2002. M. Gallagher, Lipstick Imperialism and the New World Order: Women and Media at the Close of the Twentieth Century, unpublished paper, prepared for the Division for the Advancement of Women, United Nations Secretariat, December 1995. 122 Government of Maharashtra, Policy for Women, 1996, p. 3. 121

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in post-Hindu Code independent India—domestic violence and discrimination and violence at the workplace. Domestic violence was not a new phenomenon in India. However, growing female literacy coupled with feminist activism triggered increased communication surrounding the issue of violence within the family. The first significant enactment concerning the family came within five years of the enactment of the Hindu Code. The Dowry Prohibition Act of 1961 tried to prevent the unjustified social customs of dowry, defined dowry as property demanded or given at the time of marriage, in consideration for marriage. The Act was designed to prevent growing instances of dowry related deaths and atrocities reported from Hindu families. Although designed with noble intentions of preventing atrocities committed against women within the family, the act could not be implemented in practice and despite the presence of the Dowry Prohibition Act, the number of dowry deaths and dowry related atrocities did not come down. On the other hand, growth of consumerist culture fuelled the expansion of dowry across social strata. In practice, it was extremely difficult to determine the incidence of dowry in the presence of gifts given to the bride as per customary practices. The term ‘in consideration for marriage’ was also vague, making the Act restrictive in its application. In 1984, the Dowry Prohibition (Amendment) Act, 1984 replaced the words ‘in consideration for the marriage’, by ‘in connection with the marriage’. Another Act which had impact on women—the Family Courts Act, 1984 was a legislation providing for setting up of family courts and conferring upon them jurisdiction in dealing with matrimonial disputes. This was enacted to hasten the decision-making process of matrimonial disputes. It was in response to a long standing demand by women’s organizations. The Family Courts Act, 1984 was intended to provide easier judicial procedures which would respond fast and with greater sensitivity to the needs of women facing matrimonial problems. It was hoped that these courts would provide a speedy and less expensive alternative to the formal courts. But even after two decades, many states and union territories have failed to set up the institution of family courts. What is worse, even in the states where courts have been set up, these courts have been functioning without adequate funds and in an inefficient manner. Untrained and conservative social workers are appointed in a

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cursory manner as conciliators and are paid a paltry sum as fees. In many cases, saving the marriage has become the motto of family courts, their limited mandate being—to pressurize the woman to return to an alternate shelter. As a result, women continue to be discriminated against in the face of prejudices. Another significant law enacted was the Protection of Women from Domestic Violence Act, 2005, passed by the Parliament on October 26, 2005. The passage of the Act is significant as for the first time the term ‘domestic violence’ was widened in meaning and scope from the culture-specific restriction of ‘dowry deaths’ and penal provisions to positive civil rights of protection and injunction. It acknowledges that domestic violence is a widely prevalent and universal problem of power relationships, more than the culturespecific phenomenon called ‘dowry death’. More importantly, it marks a departure from the penal provisions, which hinged on stringent punishments, to positive civil rights of protection and injunction. While domestic violence has always haunted the women’s movement and was one of its important rallying points, the analysis which linked domestic violence to dowry, had rendered the earlier amendments to the Indian Penal Code (IPC) almost redundant. The term ‘dowry death’ artificially linked ‘dowry’ which is property related, to ‘death’ which is a criminal act of violence. In each case of cruelty, suicide or murder, the prosecution had to prove not only a link but a close proximity to the dowry demand and the incident of violence as the offences under the IPC were framed in the language of ‘dowry’, i.e. dowry death (S.304B), cruelty to wives and dowry harassment (S.498A), etc. The Domestic Violence Act, 2005, for the first time, provided the scope for protective injunctions against violence, dispossession from the matrimonial home and alternate residence. It also enhanced the scope for claiming economic protection, including maintenance. The wide definition of domestic violence—physical, mental, economical and sexual—brings under its purview the invisible violence suffered by a large section of women and entitles them to claim protection from the courts. The new statute provides legal recognition to the problem faced by millions of women in India leading to greater awareness of this issue among the judiciary. Judgements under the new Act are bound not just by the provisions of the Act but also the ideological framework, which underscores

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the enactment. Another significant achievement is the widening of the scope of protection against violence beyond the category of ‘wives’ and extending it not only to mothers, daughters and sisters but also to women in informal relationships. Aged women, unmarried girls and widowed/divorced sisters can now seek protection from their relatives. The second set of laws relating to women was enacted to meet the growing female participation in the workforce. It became abundantly clear that women needed to be protected through legal provisions in the workplace just as they needed protection within the family. Accordingly, since Independence, a number of Acts have been passed to improve the condition of women at work. The most important and far reaching of them was the Equal Remuneration Act of 1976. Although the Constitution of India suggests equality of opportunity in employment and guarantees that there will be no discrimination on the basis of sex, such benefits were available for the public sector employees while severe discrimination in the private sector remained. In order to remedy the situation, the Equal Remuneration Act, 1976 was passed. The Act provides that no employer shall pay to any worker remuneration at rates no less than those at which remuneration is paid to workers of the opposite sex. The Act also provides for setting up of an advisory committee to advise the government on the extent to which the employment of women can be increased. The implementation of the Act so far has been very slow, only a few cases have been filed under ERA, 1976 as, (a) the provisions of the Act have not been well publicized, (b) vulnerability of female worker at workplace continues to pose a constraint to exercising the rights conferred under the law and (c) lack of effort by male dominated trade unions. Another area where new laws have been framed for women in the workplace were enacted to deal with sexual harassment at the workplace. In India, women are routinely subjected to sexual harassment at the workplace. The practice is more prevalent in private companies, as they are particularly immune to regulation; and lack of job security and non-enforcement of labour laws ensure that most women remain silent. Before the landmark Vishakha judgement of 1997, women experiencing sexual harassment had recourse only to IPC (Indian Penal Code) Section 354 that dealt with ‘criminal assault of women to outrage women’s modesty’ and

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Section 509 which dealt with punishment to an individual/s for using any word, gesture or act intended to insult the modesty of a woman. The interpretation of such assault or word, gesture, etc. was left to the discretion of the police. Laying down guidelines in the landmark Vishakha judgment of August 1997 (Vishakha v. the State of Rajasthan), the Supreme Court of India recognized sexual harassment at the workplace as not only personal injury to the affected woman, but also a violation of fundamental rights.123 The Vishakha judgment based itself not only on Articles 14 and 21 (equality and right to life) of the Constitution, but also Article 19(1)—the right to ‘practice any profession or to carry on any occupation, trade or business’. Consequently, sexual harassment at the workplace came to be seen as a violation of these fundamental rights. The Supreme Court ruling played a key role in sensitising employers and institutions responsible for implementing both preventive and remedial measures to make the workplace safe for women. In June 2000, it took the suicide of Sangeeta Sharma, an advocate in the Andhra Pradesh High Court to highlight the fact that women lawyers, ironically enough, have no recourse to the law prohibiting sexual harassment at the workplace. Unwilling to publicly reveal the names of her harassers because she feared harm for herself and her child, Sharma’s suicide note contained allegations of sexual harassment by fellow lawyers and senior advocates. A petition submitted to the National Human Rights Commission by Asmita—the Hyderabad-based women’s group. Sharma approached for help, urged the NHRC to intervene and provide women lawyers with an environment free from sexual harassment. A study in August 2001 by Sanhita, a Kolkata-based women’s group, found that an overwhelming 95 per cent of the respondents felt the probability of women facing sexual harassment in the 123 According to the Vishakha judgment, as defined in the Supreme Court guidelines (Vishakha v. the State of Rajasthan, August 1997), sexual harassment includes such unwelcome sexually determined behaviour as: • a demand or request for sexual favours • sexually coloured remarks • display of pornography • any other unwelcome physical, verbal or non-verbal conduct of a sexual nature, e.g., leering, vulgar jokes, remarks about the body, etc.

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workplace is very real. In the private sector, 68 per cent of the incidents of sexual harassment were committed by the boss, who wielded unchecked power and controls privileges and rewards, unlike in the public sector. It is not surprising that women in the private sector are silenced by unstable work contracts, when even women journalists—popularly perceived to be independent and articulate professionals—hesitated to speak out against sexual harassment. A recent consultation in the capital, called by the National Commission for Women (NCW), revealed the shocking fact that leading newspaper houses and media agencies did not have complaints committees in accordance with the Supreme Court guidelines. In 2006, nine years after the Supreme Court’s Vishakha judgment, a survey commissioned for the National Commission for Women revealed poor compliance. Of the 799 organizations surveyed (including government departments), only 664 had set up complaint committees as required under the guidelines. Of these, 61 committees were headed by men, not women as the guidelines required; and over 400 of the committees did not have NGO or third-party participation. As for NGOs, only 9 out of the 22 surveyed had set up the complaint committees; and only 7 out of the 14 news agencies surveyed had set up the committees. Even where these committees existed, it seemed that not all of them had women as fifty per cent of the total membership, as stipulated. According to the National Commission for Women, 60 per cent of working women are not even aware about the Vishakha guidelines. Finally, independent India saw the enactment of an overarching Act, the National Commission for Women Act, 1990. This Act created a National Commission for Women in order to (a) safeguard the provisions for women in the Constitution; (b) review the laws relating to women and suggest improvements; (c) make periodical reports to the government on matters relating to women. The Commission is mandated to also look into (a) cases of violation of the provision of the Constitution and law relating to women with the appropriate authorities; (b) inspect the conditions of women in custody in jail, remand home, and women’s institutions;

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The Commission has been given certain powers of the civil court, such as summoning and enforcing the attendance of the accused before the Commission, requiring the discovery and production of any documents, receiving evidence on affidavits, etc. The Commission has, since its initiation, taken several initiatives to amend laws and assist in the implementation process to empower Indian women. Thus, on the whole, the process of law formation continued in India after Independence, and enhanced the scope for gender equality. Taking the Hindu Code Bill as a benchmark, the law formation process in India has demonstrated progression since Independence.

Contagion Effect of Hindu Family Law Reform Despite their general lack of trust in legal reforms, the women’s movement was not able to ignore the inherent potential of law. In 1983, the Andhra Pradesh High Court’s judgment in Sareeta’s case challenging the right to restitution of conjugal rights raised a debate on Section 9 of the Hindu Marriage Act, 1955. Sareeta, a budding Telugu film star, married Venkatasubbaiah in December 1975. In June 1976, Sareeta acted in the film Maro Charitra which did well at the box office. Her husband sent her back to her parents, resentful of her film career. In 1981, Venkatasubbaiah applied under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. Section 9 reads, When either husband or wife has without reasonable excuse withdrawn from the society of the other, the aggrieved party may apply by a petition to the District Court, for restitution of conjugal rights, and the Court, on being satisfied of the truth of the statement made in such petition, and that there are no legal grounds why the application should not be granted may decree restitution of conjugal rights accordingly.124

Sareeta did not want to go back to her husband, and in a historic high court judgment on the validity of Section 9 of the Hindu Marriage Act, 1955, the court held that Section 9 went against the fundamental rights guaranteed by the Constitution. A decree of restitution of conjugal rights also meant the right to have sexual intercourse with the other party. The coercive act of the State compelling sexual 124

Government of India, Hindu Marriage Act, 1955, Section 9.

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cohabitation must, in the opinion of the court, be regarded as a great constraint and torture imposed on the mind with grave implications for the wife. The progressive advance was possible because Section 9 of the Hindu Code Bill existed as a benchmark. The contrast may be seen from a comparison with Muslim family law, which did not go through the process of codification. The popular Shah Bano case started in the plea for maintenance of Shah Bano against her husband in 1975. She was granted Rs 3000 as mehr125 and Rs 179.20 as mataa126 by the Madhya Pradesh High Court. After the resolute woman appealed to the Supreme Court, it became a politico-religious issue with the interventions of All India Muslim Personal Board, Jamaat-ul-ulema-i-Hind, Jamaate-Islami among others. Religious orthodoxy had a strong say as Muslim personal law was not codified. The debate over the Shah Bano case echoes memories of the Hindu Code Bill debate. The heads of various Jamaats wanted non-interference with Quranic interpretations. Muslim leaders argued that reforms could well be initiated from within the community without outside interference. After a detailed deliberation, Prime Minister Rajiv Gandhi pushed through the Muslim Women’s (Protection of Rights on Divorce) Act, 1986, which was seen as a dilution and the government’s bowing down to religious fundamentalism. As Nandita Gandhi and Nandita Shah observed, The man in the street who had participated in thousands against the Supreme Court judgment, felt that he had achieved a double victory: he had not only ‘saved’ Islam from danger but had also increased his control over his wife. The main criticism against the Act is that it discriminates against Muslim women by disregarding the principle of equality before law.127 125

Promissory gift from the bride’s in-laws at the time of marriage. A kind of bride wealth based on Islamic traditions stipulated in the marriage contract, to be paid to the wife in the event of divorce or her husband’s early death. Also known as haq mehr, a right of the divorced wife. 126 Literally taken, the word mataa or mut’a is gratification or a gift. It has two distinct senses, one being a form of temporary marriage, the other, in referring to mut’at al-talaq or nafaqat al mut’a, is a payment by a husband to his wife upon divorcing her. Whether this gratification, gift or payment has been intended as real compensation or simply a consolation to a divorced wife, and if so, whether such compensation or consolation is compulsory, has been a matter of contention in classical and contemporary jurisprudence. 127 Gandhi and Shah, The Issues at Stake, p. 241.

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Demanding gender justice, the Committee for Protection of Rights of Muslim Women argued that under the guise of freedom of religion and personal law, Muslim women were being denied human and constitutional rights. While many felt that the Act was a setback, for the first time the law formation process opened up a debate on divorce and other problems of Muslim women, broadening considerably the entry of the concept of secular justice in an untainted personal law. The long term result of such legal reforms in the sphere of Muslim law turned out to be altogether different from what it appeared to be in the short term. In January, 1988, the Lucknow High Court delivered the first judgment under the new Act. Fatima Sardar asked for maintenance from her husband under the new Act and was awarded Rs 85,000 as mehr, maintenance and fair provision. Z. Gilani, the convener of the Babri Masjid Action Committee and a supporter of the Act, felt that the woman had walked away with too much.128 Another landmark judgment by Justice Tilhari of the Allahabad High Court nullifying the practice of triple talaaq in 1994129 stirred the Muslim orthodoxy and raised cries of ‘religion in danger’. Despite the outcry of Muslim orthodoxy, the Muslim women’s position was further strengthened through the Supreme Court judgment of 2001 that clearly spelt out that maintenance should be reasonably fair, thereby securing the divorced Muslim women’s position. To quote from an insightful article on the evolution of Muslim family laws in independent India by Manoj Mitta, The judgment, such as it is, raises questions that are not only legal but also political and historical in significance. For instance, how are we now to reappraise Rajiv’s role in the Shah Bano affair? If his intention, as is taken even by the Court, was to undo the Shah Bano verdict, why did he draft the law in such an ambiguous way that it could be given a contrary interpretation by the judges? Since it has been interpreted to mean that the man’s liability to his divorced wife may extend to her entire life, how do the fundamentalists see the Act in retrospect? Did Rajiv outsmart them? Or was Rajiv so dumb that he meant to do one thing (minimise the liability of the husbands) and ended up doing the opposite (maximise the benefits 128 129

Ibid., p. 242. Agnes, Law and Gender Inequality, pp. 112–13.

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to the divorced women)? Whatever his motive might have been, and for all the flak he got in his life time for it, Rajiv’s decision to enact a law to quell the Shah Bano controversy has in the long run proved to be a blessing for the divorced women who have been saved from vagrancy. Going by the Supreme Court’s interpretation, history will have to say that this Act provoked much criticism more because it was misunderstood than for any fundamental infirmity.130

To correct Mitta, or rather to place the entire evolution into a historical perspective, historical evaluation needs to look beyond the proximate impact and into the emancipatory potential of law. In the above case, the law has acted as a stepping stone for future debate and opened space for emancipation of woman, even when the nature of it seemed at the time of the enactment, the exact opposite. This can be seen as the emancipatory power of law and the liberating power of law as symbol. The social consequence of the law was evident in the demand for change from the Muslim women and liberals. In 1985, the Muslim Satyasadhok Mandal organized the Talaq Mukti Morcha, and toured several districts of Maharashtra with poster exhibitions and speeches in 1985, setting in motion a highly controversial communicative debate. They were stoned by hostile crowds and received warmly by women eager to share their problems. After the Shah Bano case, Muslim members of the Self Employed Women’s Association (SEWA), an organization of self-employed women in Ahmedabad, Gujarat, have formed their own group to help and support their sisters in distress. The Goa Muslim Women’s Association has put up stiff resistance to fundamentalists in Goa and successfully resisted the introduction of Muslim personal law in place of the existing common law. The Act of 1986 has thus generated numerous possibilities, raising feminist consciousness that cut across caste, religion and class. Thus, legal reforms, even in the elitist forum, created possibilities for all those engaged in a struggle against patriarchy. These legal judgments thus take a course not unrelated from social history and create precedents of their own, paving the way for further legal reform.

130 Manoj Mitta, ‘Shah Bano law revisited’, The Indian Express, October 18, 2001, available at www.indianexpress.com/columnists/mitta/20011018.html.

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THE HINDU CODE BILL IN MODERN INDIA: TOWARDS AN EXPANDED INTERPRETATION The formative processes of law and the intricate relationship between social change and legal reforms have not yielded to simplified generalizations. The present book is an effort to study this interface between legal reform and social change, by exploring the influence of layers of communicative processes on the formative process of law. The background of such an effort is the Hindu Code Bill debate that took place over the codification of Hindu customary law during 1941 to 1956, the Hindu Code Bill debate. As the debate did not evolve in a historical vacuum, an assessment of the historical continuum forms an important part of this book as do the depth and diversity of the debate over Hindu Code Bill during the 1940s and 1950s. The book seeks to understand the co-movement of legal reform and social transformation from the late eighteenth century to the early years of the twenty-first century against the background of deep-rooted religious control over family laws and customs. The core segments (Chapter 3 to Chapter 7) cover the evolution and discourse surrounding the Hindu Code Bill based on a detailed scrutiny of available evidence relating to the period 1941–56. By looking at the debate surrounding the Hindu Code Bill, the book emphasizes that understanding of communicative processes in society is important in order to understand the dynamics of law formation designed to alter entrenched patriarchal notions of family and gender roles. The book studies the discourse over the Hindu Code Bill in a historical continuum covering past, present, and future. It discusses the dominant discourse surrounding the Hindu laws in ancient and medieval India and notes the absence of challenges to the religious discourse. It cites available sources to conclude that patriarchy extended their control over women significantly in the post-vedic period and in medieval India. The book confirms the British orientalist positioning regarding religious and hence gender issues, which while abhorring practices like sati, ardently followed a policy of non-interference with Hindu customary practices. The first signs of protest against deeply entrenched patriarchy came from the social reformers of the nineteenth century who were supported by the British through enactments of necessary laws. Since the mid-nineteenth century onwards, women reformers surfaced and

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tried to contest patriarchal dominance from a severely constrained position. The book records the growth in communicative processes surrounding gender reforms in colonial India with the advent and growth of pan-Indian and regional women’s associations. The study demonstrates strong linkages between religion, state and social action in colonial India131 and underscores the key factors which acted as catalysts to the vibrant Hindu Code Bill discourse in the 1940s and 1950s. In analysing the Hindu Code Bill’s past, Chapter 2 identifies key factors that contributed to the Hindu Code Bill debate. The factors were growth of the nationalist movement which forced Indian women out of their inner courtyards, the women’s movement that focussed on legal reforms and the growing need for Hindu law reform felt by the colonial administration. Underscoring the significance of the caste system in India reflected in the growth of brahmanical patriarchy, the first two chapters demonstrate interlinks between religion, nationalism and female empowerment in the nineteenth century and in twentieth century India. The book thereafter devotes attention to the nature of the Hindu Code Bill controversy and the contribution of various social groups, prominent individuals, legislature, religious and political leaders to the debate. The chapters focus attention both on the public and private sphere and the process of the evolution of the debate. It can be seen that the debates surrounding core patriarchal values were intense due to broad based participation of religious and social groups with polarized views. The diversity of views made the debate vibrant and triggered the transformation of the patriarchal mindset. The final phase of the debate has received special focus as many compromises had to be effected to push through the enactments in piecemeal manner during 1954–6. This is reflective of the power of patriarchal orthodoxy which continued to exert significant control over the Indian value system. Thus, the passage of the Hindu Code Bill was more symbolic than substantive. This perception was reflected in the post-Hindu Code Bill literature which has repeatedly stressed that the Bill made several compromises with patriarchy, and the Bill in its enacted form was not an ideal legislation for gender justice. The explanation in existing literature is twofold. First, it states that the eagerness of the 131 Susie Tharu and Tejaswini Niranjana, ‘Problems for a Contemporary Theory of Gender’, Social Scientist, Volume XXII, Nos. 3–4, March–April, 1994.

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State to push for uniformity which increases state control vis-à-vis religion, and secondly, the the State lacked the desire to go against Indian patriarchy. As a result, the Code was incomplete and did not go far enough to ensure gender justice. The book argues that this assessment of the Hindu Code Bill in its enacted form is only a partial assessment. The historical significance of the Hindu Code Bill should be understood not merely in terms of its legal provisions or its implementation, but also in terms of its impact on gender consciousness. To judge the impact of the Hindu family law reform on the modern Indian mind, the book resorts to a multi-pronged approach. The book stresses that the discourse over the Hindu Code Bill led to the transformation of social consciousness regarding women’s role in family and society. The new consciousness was a synthesis of tradition and modernity, thereby influencing the status of women in independent India. The book also presents statistical evidence to show that the social perception of women in Indian society changed slowly yet significantly after the implementation of the Hindu Code Bill. Using the information presented in Dwarkanath Mitter’s note of dissent to the Rau Committee in 1945 as a benchmark, the book has compared it to similar surveys of social perception conducted in the 1950s and the 1960s and in the report Towards Equality, published in 1974. With a view to understanding the evolution of the social perception of the feminine in the post-Towards Equality period, the book presents a sample survey of matrimonial advertisements in the early years of the new millenium. The comparative evidence clearly shows that compared to the frozen gender perception and relations in the colonial era, the social consciousness changed discernibly in the span of a few decades. The evidence presented by the book demonstrates that the evolution of feminist consciousness and its symbiotic relationship with legal reforms cannot be discussed in isolation. Law transforms society not just through the efficacy of the implementation process; it exerts a transformational influence on gender perceptions. The vast gap between the formation of law and its implementation exists precisely because the law must necessarily get absorbed into social consciousness to ensure proper implementation. In the context of the Hindu Code Bill debate, there were two parallel forces at work—one, at the ground level implementation of the family laws as evidenced in court cases

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and judgments and the other, influencing social change through its impact on gender perception in society. If the history of the Hindu Code Bill has any lessons, it is that even a modest looking legislation with several loopholes can bring considerable long run benefits, by changing social consciousness and thereby triggering further reforms designed to plug the loopholes. The history of the Hindu Code Bill is also a pointer that the failure in the realm of the observed can be significantly compensated by the achievements in the realm of consciousness, in the presence of a vibrant discourse on issues that contain the possibility of stirring social consciousness. The Hindu Code Bill controversy, as the present book shows, was such a debate that involved the nation and influenced the imagination of the nation in a significant way. The vibrancy of the Hindu Code Bill controversy enables us to expand the methodology to incorporate the evolution of consciousness and results in an expanded historical interpretation of the Hindu Code Bill controversy. The present book is an attempt to extend the debate by placing it in the realm of consciousness. The book argues that an understanding of the debate surrounding the Hindu Code Bill is crucial to situate the growth of gender consciousness in Indian society in a historical context. By means of a discourse analysis of the Hindu Code Bill, the book explores the various manifestations of the debate from a gender perspective. Such an analysis of the discourse has been attempted in two parts. The first part explores the issues discussed in the context of gender rights and looks into the nature of the debate in the public sphere, in media and other facets of the public domain, viz., speeches, meetings, published books, and pamphlets, etc. The second part reviews the debate in the political sphere, analysing the parliamentary debates and correspondence among the political leaders. Tracing the evolution of the communicative process surrounding the Hindu Code Bill, it is demonstrated that the debate was vibrant, touching all segments of society who were in a position to express themselves. The debate thus was able to arouse and stimulate social consciousness. The book tracks the evolution of gender consciousness in independent India with a view to exhibit that while at the level of implementation of law the process of improvement in women’s position was not significant, the social perception of women definitely changed, and brought within the changed consciousness an aspiration

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for changing the status of women in the real world. Thus, the historical relevance of the Hindu Code Bill needs to be judged not only from the ground realities of effective rights of women in society, but also through an analysis of its role in transforming the social perception of women. The book is an effort to provide an expanded interpretation to the historical relevance of the Hindu Code Bill.

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GOVERNMENT REPORTS Government of India, Towards Equality: Report of the Status of Women in India, Ministry of Education and Social Welfare, New Delhi, 1974. __________, Report of the Hindu Law Committee, Government Press, Madras, 1941. __________, Report of the Hindu Law Committee, Government Press, Madras, 1947. __________, Hindu Law Committee Report-Draft (with Changes by the Select Committee), 1948. __________, Oral Evidence Tendered to the Hindu Law Committee, Government Press, Madras, 1947. __________, The Constitution of India, 1950. __________, Report of the First Press Commission, 1954. __________, Towards Equality, Report, Committee on the Status of Women in India, Department of Social Welfare, Ministry of Education and Social Welfare, New Delhi, 1975. __________, Educational Development of Women in India, Ministry of Education and Culture, Government of India Press, New Delhi, 1982. __________, Health Information Of India, Ministry of Health and Family Welfare, 1987. __________, Report of the Second Press Commission, 1987. __________, Perspective Plan on Women, 1988–2000 AD, Ministry of Women and Child Welfare, New Delhi, 1988. __________, Census of India, Registrar General and Census Commissioner, 1921–2001. __________, Census of India, India-Special report and Tables based on Sample Data, Series I, Part III, 1981. __________, Planning Commission, Five Year Plan Reports, various years. Government of Maharashtra, Policy for Women, June, 1994.

LEGISLATIVE DEBATES Legislative Assembly Debates, Volume II, March 24, 1943. Legislative Assembly Debates, Volume II, March 30, 1943.

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Legislative Assembly Debates, Volume II, April 2, 1943. Legislative Assembly Debates, Volume IV, March 21, 1946. Constituent Assembly of India (Legislative) Debates, Volume I, February 11, 1948. Constituent Assembly of India (Legislative) Debates, Volume II, February 26, 1948. Constituent Assembly of India (Legislative) Debates, Volume IV, April 9, 1948. Constituent Assembly of India (Legislative) Debates, Volume I, February 11, 1949. Constituent Assembly of India (Legislative) Debates, Volume I, Part II, February 17, 1949. Constituent Assembly of India (Legislative) Debates, Volume II, Part II, February–March, 1949. Constituent Assembly of India (Legislative) Debates, Volume II, Part II, April 2, 1949. Constituent Assembly of India (Legislative) Debates, Volume III, April 1, 1949. Constituent Assembly of India (Legislative) Debates, Volume VI, Part II, December 1949. Constituent Assembly of India (Legislative) Debates, Volume VII, Part II, December 1949. Parliamentary Debates, Volume VIII, Part II, February 1951. Parliamentary Debates, Volume XV, Part II, September 1951. Lok Sabha Debates, Volume X, Part V, 1954. Lok Sabha Debates, Volume XI, Part V, 1954. Lok Sabha Debates, Volume IV, Part V, 1955. Lok Sabha Debates, Volume XXVI, Part IV, 1955.

OTHER REPORTS/PAMPHLETS All India Women’s Conference, Proceedings of the First All India Women’s Conference, 1927. Dharma Nirnaya Mandal, A Report On the Propaganda Work Done In Support of the Hindu Code Bill, published by the Dharma Nirnaya Manadal, Lonavala, Poona, 1950. All India Anti Hindu Law Committee, The Hindu Code Bill, Pearsons Press, Delhi, 1949. All India Women’s Conference, Annual Reports, 1927–1956. Indian National Congress, Report of the Special Session of the Indian National Congress, Bombay, August 19–31 and September 1, 1918 Joshi, V.V., The Legal Disabilities of Women, (pamphlet), All India Women’s Conference, 1933. National Planning Committee, Woman’s Role in Planned Economy, edited by K.T. Shah, Bombay, 1947,

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Pandit Shri M.C. Tiwari, A Review of the Hindu Code Bill, published by Pandit Shri Gopal Chandra Mishra, Benaras, 1949. Swami Karpatriji, Hindu Code Bill: Praman ki Kasauti Par, pamphlet.

UNPUBLISHED PAPERS All India Women’s’ Conference Files at Nehru Memorial Museum and Library. All India Congress Committee Papers at the Nehru Memorial Museum and Library. Gallagher, M., Lipstick Imperialism and the New World Order: Women and Media at the Close of the Twentieth Century, unpublished paper, prepared for the Division for the Advancement of Women, United Nations Secretariat, December 1995.

NEWSPAPER ARTICLES ‘A Department of Social Service: Lady Rama Rau’s Suggestions’, The Times of India, February 13, 1941, p. 4. ‘All India Women’s Conference’, Article by Smt. Kamaladevi Chattopadhyay, Free Press Journal, January 1, 1946, p. 4. ‘Army Jobs for Women’, The Times of India, November 14, 1942, p. 5. ‘Anti Hindu code Conference’, The Times of India, January 8, 1945, p. 7. ‘Bettering Women’s Lot in Society: Bombay Women’s Conference’, The Times of India, February 22, 1945, p. 7. ‘Bill Affecting Women’s Rights: Bombay Conference Support’, The Times of India, April 10, 1944, p.3. ‘Bill to Codify Hindu Law: Elders Accept Motion for Reference’, The Times of India, April 5, 1944, p. 4. ‘Bombay Women Support Hindu Code Bill’, The Times of India, February 27, 1950, p. 7. ‘Bombay Women Accord Whole: hearted Support: Dr Jayakar Explains Main Provisions of Hindu Intestate Succession Bill’, The Bombay Chronicle, April 20, 1943, p. 2. ‘Bombay Women’s Council’, The Times of India, February 4, 1941, p. 3. ‘Codification of Hindu Law’, The Times of India, January 22, 1944, p. 4. ‘Codification of Hindu Laws: Succession Rules’, The Times of India, August 5, 1941, p. 6. ‘Codifying Hindu Law: Committee Meets in Bombay’, The Times of India, January 30,1945, p.4. ‘Codifying Hindu Law: Rau Committee’s Proposals’, The Times of India, August 2, 1944, p. 5. ‘Cut off Wife’s Nose with Axe’, The Times of India, September 26, 1941, p. 11. ‘Divorce by Caste Customs: Legality upheld in Appeal’, The Times of India, April 11, 1941, p. 11.

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‘Dr Deshmukh’s Bill’, The Times of India, March 7, 1941, p. 8. ‘Draft Hindu Code’, The Times of India, November 29, 1944, p. 4. ‘Draft Hindu Code: Mrs. Sarojini Naidu Calls for Careful Study’, The Times of India, January 2, 1945, p. 3. ‘Draft Hindu Code Bill: Bengal Landholders Opposition’, The Times of India, January 5, 1945, p. 7. ‘Draft Hindu Code Bill’, Readers View, The Times of India, November 15, 1944, p. 4. ‘Draft Code Bill’, Readers Views, The Times of India, January 9, 1945, p. 4. ‘Equal Partnership with Man: Growing Gppreciation of Women’s Position’, Free Press Journal, April 13, 1944. ‘Equal Rights for Women: Sir Sultan Ahmed’s Speech on Hindu Succession Bill’, The Bombay Chronicle, April 10, 1943, p. 5. ‘Girl’s Education: Reforms Discussed by Women’s Council’, The Times of India, February 21, 1942. ‘Girl Opposed to Wedding, Court Warns Father’, The Times of India, February 25, 1941, p. 2. ‘High Court: Adoption by Widows Upheld’, The Times of India, February 12, 1941, p. 9. ‘Hindu Code Bill: Early Debate in Parliament’, The Times of India, February 4, 1951, p. 1. ‘Hindu Code Bill Gets Top Priority’, The Times of India, January 25, 1951, p. 1. ‘Hindu Code Bill: Not Likely to be Taken up by Government’, The Times of India, Bombay, March 6, 1950, p. 6. ‘Hindu Code Bill Vital to India: Mrs Hannah Sen’s Appeal’, The Times of India, Bombay, January 29, 1951, p. 5. ‘Hindu Intestate Succession Bill’, The Bombay Chronicle, March 30, 1943, p. 1. ‘Hindu Intestate Succession Bill’, The Bombay Chronicle, May 8, 1943, p. 3. ‘Hindu Law’, Editorial, The Times of India, June 18, 1941, p. 6. ‘Hindu Law’, Editorial, The Times of India, August 9, 1944, p. 4. ‘Hindu Law’, Editorial, The Times of India, February 8, 1950, p. 6. ‘Hindu Law Code: Mr Justice Divatia on Proposed Changes’, The Times of India, September 20, 1944, p. 5. ‘Hindu Law on Marriage: Debate on Motion’, The Times of India, March 4, 1944, p. 7. ‘Hindu Law Reform’, The Times of India, October 10, 1944, p. 4. ‘Hindu Law Reform: Matrimonial Courts Suggested’, Free Press Journal, February 5, 1945. ‘Hindu Law Reforms: Piecemeal Legislation only Solution’, The Times of India, January 7, 1944, p. 4. ‘Hindu Marriage’, The Times of India, March 9, 1944, p. 6. ‘Hindu Marriage Law Reform: Reader’s Views’, The Times of India, March 29, 1941, p. 8.

276

BIBLIOGRAPHY

‘Hindu Marriage Reform Bill: Reference to Select Body’, The Times of India, March 2, 1945, p. 1. ‘Hindu Social Reform’, Editorial, The Times of India, April 18, 1941, p. 6. ‘Hindu Widow’s Maintenance: Lower Court’s Decree set Aside’, The Times of India, April 11, 1941, p. 9. ‘Hindu Widow’s Rights: Rau Committee’s Views’, The Times of India, June 20, 1941, p. 3. ‘Hindu Women’s Property Act: Legality Questioned’, The Times of India, April 16, 1941, p. 7. ‘Hindu Women’s Property Rights’, The Times of India, April 24, 1941, p. 6. ‘Hindu Women’s Protest Against the New Bill’, The Bombay Chronicle, June 28, 1943, p. 1. ‘Hindu Women’s Right to Inherit Property’, The Bombay Chronicle, May 10, 1943, p. 1. ‘Hindu Women’s Rights’, The Times of India, April 5, 1941, p. 6. ‘Hindu Women’s Rights’, The Times of India, June 27, 1941, p. 3. ‘Hindu Women’s Rights’, The Bombay Chronicle, May 31, 1943, p. 1. ‘Hindu Women’s Rights’, Reader’s Views’, The Times of India, May 29, 1941, p. 6. ‘Hindu Women’s Right to Property’, The Times of India, October 21, 1941, p. 6. ‘Husband’s Say in Wife’s Streedhan’, Free Press Journal, December 10, 1942, p. 3. ‘Indian Divorce Bill’, The Times of India, October 2, 1945, p. 6. ‘Indian Women’s Conference’, The Times of India, January 3, 1942, p. 9. ‘Inter: communal Marriages: Plea at Women’s Conference’, The Times of India, February 23, 1944, p. 4. ‘Joint Family System among Hindus: Sir C. Setalvad For its retention’, The Times of India, February 1, 1945, p. 6. Karkaria, Bachi ,’Identity in Waiting: A Long Haul from ‘Sati’ to ‘Tara’, The Times of India, Bombay, July 4, 1994. ‘Landed Property of Hindu Women: Bombay Measure’, The Times of India, October 16, 1942, p. 8. ‘Legal Equality Between Sexes: Hindu Women’s Demand’, The Times of India, February 13, 1945, p. 7. Letter to the Editor, The Times of India, January 10, 1941. p. 6. ‘Lift Ban on Sagotra Marriages’, The Bombay Chronicle, November 11, 1944, p. 4. ‘Literacy Among Women: Spectacular Increase in Past Decade’, The Times of India, April 29, 1941, p. 5. ‘Madras Women Demand National Government’, The Bombay Chronicle, November 30, 1942, p. 3. ‘Marriage by Leave’, The Times of India, June 11, 1941, p. 6.

BIBLIOGRAPHY

277

‘Marriage Bill: Elders Approve Select Committee Motion’, Free Press Journal, April 5, 1944, p. 4. ‘Marriage Bill goes to Select Committee: Circulation Move Defeated’, Free Press Journal, 1944, April 4, p. 5. ‘Marriage Injunction in Hindu Society’, The Times of India, November 11, 1944, p. 7. ‘Maternity and Child Welfare’, The Times of India, April 28, 1941, p. 4. ‘Maternity Welfare in Rural Areas: Plea at Calcutta Conference’, The Times of India, April 11, 1941, p. 5. Mitta, Manoj, ‘Shah Bano law Revisited’, The Indian Express, October 18, 2001, available at www.indianexpress.com/columnists/mitta/20011018. html. ‘Mrs Kamaladevi in City’, The Bombay Chronicle, July 7, 1942, p. 1. ‘National Council for Women’, The Bombay Chronicle, February 6, 1943, p. 8. ‘No Opposition to Present Customs: Dr.Ambedkar on Hindu Code Bill’, The Times of India, January 12, 1950, p .3. ‘On the Air’, The Times of India, January 14, 1941, p. 8. ‘Pandit Nehru Defends Policy in Parliament’, The Times of India, February 4, 1950, p. 9. ‘Parliament Considers Hindu Code Bill’, The Times of India, February 6, 1951, p. 5. ‘Partition Suit by Hindu Widow’, The Times of India, February 12, 1941, p. 11. ‘Plea to Abolish Polygamy: Women’s Conference Proposal’, The Times of India, May 31, 1941, p. 8. ‘PM Condemns Dowry System’, Indian Express, New Delhi, July 22, 1983. ‘Political Patriarchy: Reservations about Power for Women’, The Times of India, May 24, 1997, p. 14. ‘Radhakrishnan Supports Hindu Law Reform’, The Bombay Chronicle, November 8, 1944, p. 3. ‘Rau Committee in Cal: Opposition to Draft Code’, The Times of India, March 1, 1945, p. 10. ‘Reform of Hindu Law: Arguments of Women and Sanatanists’, The Times of India, January 31, 1945, p. 9. ‘Reform of Hindu Marriage Law Urged’, The Times of India, February 15, 1945, p. 5. Report on Legislative Assembly Proceedings, The Bombay Chronicle, March 25, 1943, p. 4. ‘Revising Hindu Law: Social Reformers Memorandum’, The Times of India, May 13, 1941, p. 10. ‘Right to Dispose off Stridhan: Women’s Will Imperative’, The Times of India, December 23, 1942, p. 9.

278

BIBLIOGRAPHY

‘Right to Widow to Adopt Son: Privy Council Decision’, The Times of India, August 2, 1944, p. 4. ‘Rights of Hindu Women: Codification of Law’, The Times of India, September 11, 1941, p. 10. ‘Rights of Women’, Editorial, The Times of India, September 16, 1941, p. 7. ‘Sisters of India For Service: Dr. Reddy’s Plea at Women’s Varsity’, The Times of India, June 21, 1941, p. 7. ‘Status of Indian Women’, The Times of India, January 23, 1941, p. 13. ‘Stridhan Wife’s property’, The Times of India, August 14, 1941, p. 3. ‘Support to Hindu Code Bill Urged’, The Times of India, February 1, 1951, p. 10 ‘The Facilities for Women: Lady Lumley’s Plea’, The Times of India, March 6, 1941, p.3. ‘They Quit All India Women’s Conference’, The Bombay Chronicle, December 30, 1942, p. 7. ‘Thorough Revision of Hindu Law Demanded: Bombay Women’s Conference’, Report, The Times of India, February 14, 1941, p. 11. ‘Time not Ripe to Replace the Smriti Law’, Free Press Journal, February 7, 1945, p. 4. ‘Training School for Nurses: Bombay Women’s Plea’, The Times of India, February 17, 1941, p. 5. ‘Views on Co:Education’, The Times of India, December 28, 1944, p. 6. ‘Women and the Draft Hindu Code’, Reader’s Views, The Times of India, January 4, 1945, p .4. ‘Women Oppose Hindu Code Bill’, Free Press Journal, January 11, 1945, p. 3. ‘Women Textile Workers: More Maternity Benefits’, The Times of India, November 11, 1942, p. 5. ‘Women Workers in Mines: Assembly Votes for Maternity Benefits’, The Times of India, November 6, 1941, p. 9. ‘Women’s Association’, The Times of India, March 28, 1941, p. 9. ‘Women Clerks in Madras Secretariat’, The Bombay Chronicle, May 5, 1943, p. 3. ‘Women’s Conference Condemns Government Assault on Civil Liberties’, Free Press Journal, April 11, 1944, p. 2. ‘Women’s Conference Ends’, The Times of India, January 1, 1941, p. 6. ‘Women’s Conference’, The Times of India, August 23, 1941, p. 7. ‘Women’s Education’, The Times of India, January 25, 1941. ‘Women’s Education’, The Times of India, October 27, 1945, p. 6. ‘Women’s Education’, Editorial, The Times of India, March 12, 1941, p. 6. ‘Women’s Education and India’s Literacy’, The Times of India, October 26, 1945, p. 3.

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279

‘Women’s New Status’, The Times of India, April 12, 1944, p. 5. ‘Women’s Movement in India: Tremendous Progress’, The Times of India, June 14, 1945, p. 5. ‘Women’s Plea to British Plea: Lack of Realism’, The Times of India, June 24, 1941, p. 2. ‘Women’s Problems’, The Times of India, July 8, 1941, p. 5. ‘Women’s Property Rights’, Editorial, The Bombay Chronicle, April 21, 1943, p. 4. ‘Women’s Rights to Inheritance’: Motilal Setalvad Explains’, The Times of India, October 10, 1944, p. 3. ‘Women’s Role in Civil Defense: More Enrolments’, The Times of India, February 15, 1942, p.4. ‘Women’s Role in Country’s Life’, The Times of India, August 3, 1944, p. 6. ‘Women’s Role in Education in India: Bombay Governor’s Advise”, The Times of India, July 31, 1944, p. 4. ‘Women’s Role in Rural Upliftment: Maharani of Gwalior’s Appeal’, The Times of India, February 19, 1941, p. 4. ‘Women’s Status in New Order’, The Times of India, January 4, 1946, p. 3. ‘Women’s University’, The Times of India, April 30, 1941, p. 8.

INDEX

Adoption 67, 118 Age of Consent Bill (Sir Hari Singh Gour), 23–4, 35, 43–4 Agnes, Flavia, 3fn6, 5fn11, 47, 47fn7, 47fn8, 48fn12, 212, 214–15 Ahmed, Naziruddin, 69, 72, 168, 170 Ahmed, Sir Sultan, 58 Aiteriya Brahmana, 5 akharas, 17–18, 17fn44 Akoba Laxman v. Sai Genu case, 1941, 50 Ali, Beghum Hamid, 36–7 Aliyasantana systems of Namboodiri Brahmins, 199 All India Hindu Mahasabha (Madras), 80 All India Women’s Conference (AIWC), 23–4, 34–5, 43, 56–7, 61, 105 Ambedkar, B.R., 11, 63, 67–8, 70, 72, 146–54, 170–1 anti-arrack agitation, in Andhra Pradesh, 241–2 anti-dowry campaign, 238–40

anti-rape campaign, 240–1 An Indian Fighter Recalls Her Life, 33 anuloma marriage, 10, 10fn21 Arthashastra (Kautilya), 5 Arya Samaj, 10 Asiatic mode of production, 8 Asthana, Pratima, 216 Atharvaveda, 5 Atmiya Sabha, 14 Bajoria, Baijnath, 58–9 Bal, Vidya, 21 Banerjee, P.N., 59 Baroda Stree Sahakari Necessary Stores Ltd., 22 Barve, L.K., 98 Basham, A.L., 5 Baxi, Upendra, 205 Bengali society, 13 Bentinck, William, 14 Besant, Annie, 38 Bhagini Samaj, 22 Bhagwat, Indira, 36 Bhandarkar, Ramkrishna Gopal, 26 Bharatwarshiya Mahila Vidyapeeth, 26

INDEX

Bhargava, Thakurdas, 71, 71fn72, 168, 174 Bharat Dharma Mahamandal (Benaras), 79 Bharatiya Jan Sangh 183–4 Bhattacharya, Sukumai, 110–11 Biharilal, Kailash, 54 Biswas, C.C., 188, 190–1 Bombay Plan, 1944, 134 Bose, Subhash Chandra, 37 Brahmachari, Prabhudatta, 180–2 Brass, Paul R., 10 Captain, Gosiben M., 22 Captain, Perin, 22 caste dynamics Ambedkar, role of, 11 brahmanical ethos in Maharashtra, 17–18 in colonial India, 12 inheritance laws, 15 movements against discrimination, 11 norms of pativrata, 16 socio-religious reform movement, 10–14, 18–21 Young Bengal Movement and, 13–14 Chakravarty, Uma, 16, 19 Chandra, Bipan, 10 Chatterjee, N.C., 192–3, 196 Chatterjee, Partha, 21 Chattopadhyay, Kamaladevi, 24–5, 215 Chattopadhyaya, A.N., 53, 60 Chattopadhyaya, Kamaladevi, 36 Chaudhurani, Saraladebi, 33 Child Marriage Restraint Act, 1928, 43 Child Marriages Bill, 35 Chimnabai, Maharani, 23, 34–5 Chimnabai Maternity and Child Welfare League, 22

281

Choudhurani, Sarala Devi, 36 Civil Disobedience Movement (1930–32), 24 A Code of Gentoo Laws or Ordinations of the Pandits, 1776, 41 Codified Hindu Law: Myth and Reality (Madhu Kishwar), 215 Colebrook, H.T., 41 Congress Karachi Resolution, 1931, 37 Constituent Assembly Debates, 71–4 Copeland, J., 37 Cormack, Margaret, 225–6, 225fn77 Cousins, M. E., 22 Cousins, Margaret, 22fn65, 24, 36 Criminal Procedure Code, Section 125 of, 200–1 Das, Biswanath, 72 Das, S.R., 36 Dayabhaga system, of inheritance, 6–7, 14, 41, 43, 48, 59, 65–7 Dayanand, Swami, 10 Derrett, John Duncan M., 11–12, 65, 203, 207–10 Desai, Neera, 21fn62, 23fn68 Deshmukh, Annapurna, 101 Deshmukh, G.V., 47–8, 51, 54 Dewanji, Rao Bahadur P.C. (Bombay), 96 Dharma Nirnaya Mandal, Lonavala, 107–10 Dharmashastra literature, 4, 40, 46 Dhruva, A.B., 30 Dhume, Lila, 28 Divatia, Sir H.V., 27, 104 Divekar, Hari Ramchandra, 26 Diwan, Sharda, 28 Domestic Violence Act, 2005, 246–7 Doren, Alice Boucher van, 9 Dowry Prohibition Act, 1961, 245

282

INDEX

Dowry Prohibition (Amendment) Act, 1984, 245 Duggal, Babi Ben Mulji, 97 Duncan, John, 41 Durgabai, G., 154, 158 Durkheim, Emile, 218 Dutt, Guru, 195 Dutta, A.C., 53 dwaimushayan adoption, 67 Equal Remuneration Act, 1976, 247 Everett, Jana Matson, 211–12 family, in ancient India, 5 Family Courts Act, 1984, 245 family law, in modern India, 244–53 feminine attributes, desired, 230–1 feminist movements, in India, 2 against patriarchy, 2 against shastric traditions, 2–3 during 1910 to1930, 34 Forbes, Geraldine, 9fn19, 24, 33, 140, 215 French Revolution, 135 Gadgil, N.V., 54 Gajendragadkar, A.B., 28 Gajendragadkar, Prahlad Balcharya, 206–7 Gandhi, Mahatma, 11, 135–40 Gandhi, Nandita, 216, 236 Ganguli, Pratulpati, 81 Gaur, Hari Singh, 47 gender consciousness, in independent India, 232–7 gender development, in India, 1 gender discourse, in vedic and post-vedic periods, 4 Gharpure, J.R., 51, 83 girl child, birth of a, 5 Githa Hariharan v. Reserve Bank of India (1994), 120

Goa Muslim Women’s Association, 253 godha adoption, 67 Gokhale, B.N., 97 Gore, M.S., 226, 227fn81 Government of India Act, 1919, 45 Government of India Act, 1935, 39 Grammar (Panini), 5 Greetz, Clifford, 160 Gujarati Hindu Stri Mandal, 21–2 Guha, Ramachandra, 185fn13, 185fn14 Gune, Y. C., 95 Guru, Narayana, 11 Habermas, Jurgen, 218–22 Hartog Commission, 1929, 27 Hasht Bahisht (Amir Khusrau), 7 Hastings, Warren, 41, 44 Himatsingka, Prabhu Dayal, 72 Hindu Adoption and Maintenance Act, 1956, 200–1 Hindu Adoptions and Maintenance Act, 1956, 133 Hindu Code Bill, 31 analytical reviews, 209–15 1955 and 1956, 195–7 Bharatiya Jan Sangh and, 183–6 discerning factors, 32 eighteenth century, 40–2 empirical validation, 222–3 enactments of, 178–9, 196–7 evolutionary process of. See Hindu Code Bill, evolution of Franchise Committee and, 38–9 in modern India, 254–8 nationalist upsurge and growth of feminist consciousness, role of, 32–4 nineteenth century, 42–3 opposition to, 179, 182–3

INDEX

perceptions on, 205–9 revival after 1952, 186–97 role in the election campaign, 1952, 180–2 theoretical validation, 217–22 during 1950 to 1957, 205–6 twentieth century, 43–4 as works on feminist activism, 215–17 Hindu Code Bill, evolution of, 39–44. see also public opinion, Hindu Code Bill Ambedkar, role of, 67–8 articles in Roshni, 57 Bombay Women’s Association, role of, 57 in case of adoption, 67 clause 2, 73 clause 3 and 4, 74 co-parcenary law, 66 discussions, 62–3 first version, 57–63 Indian National Congress, role of, 47–8 intestate succession, 58, 65–6 issue of disqualification of unchaste widows from property rights, 53–4 law of succession, 49 ‘lawyer’s debate,’ 46 liberal vs orthodox viewpoint, 67 Mahamahopadhayaya’s role, 46 Montague-Chelmsford reforms, 1918, 45 orthodox viewpoint, 58–9 proposals of the Hindu Law Committee, 1947, 64–7 publications on Hindu law, 46 public debate on Hindu Law Committee, 1941, 55–7 questionnaire of Hindu Law Committee, 1941, relevant features, 52–3

283

Report of the Hindu Law Committee, 1941, 51–5 role of Women’s Associations, 55 1920s, 45–7 1930s, 47–50 1940s, 50–74 Select Committee members and their recommendations, 68, 70 share of daughter, 66–7 translation of, 61 women’s organizations, role of, 34–8, 59, 61–2 women’s right to inheritance, 48 worries of a secular intelligentsia, Times of India report, 56 Hindu Code Bill: Praman Ki Kasauti Par, 107 The Hindu Code Bill (Prahlad Balcharya Gajendragadkar), 206 Hindu Law and Usage (Sir J.D. Mayne), 46 Hindu Law Committee, 51–5, 57, 66, 80, 82 Hindu Law in British India (S.V. Gupte), 46 Hindu Law of Inheritance (Amendment) Bill, 50 Hindu Law:Past and Present (Derett), 207–9 Hindu Marriage Act, 1955, 133, 198, 250 Hindu Marriage and Divorce Bill, 190–5 Hindu Marriages Validity Bill, 71 Hindu Mahasabha, 182–3 Hindu Minority and Guardianship Act, 1956, 133, 201–2 Hindu society, 3, 3fn6 religious discourse, dominance of, 3–8

284

INDEX

village panchayats, role of, 4 Hindu Succession Act, 1956, 133, 198–200 Hindu Widow Remarriage Act, 1856, 15 Hindu Women’s Rights to Property Act, 43 Hindu Women’s Right to Property Act, 1937, 43, 48–9, 54, 56, 206 agricultural landed property, 55 issue of disqualification of unchaste widows from property rights, 53–4 parts II and III, 51 promoted by Akhil Chandra Dutta, 50 Hindu Women’s Right to Separate Residence and Maintenance Bill, 50–1 History of British India (James Mill), 8–9 Hunter’s Commission Report, 1881, 28 Indian Modernization by Legislation: The Hindu Code BillI (Harold Levy), 210 Indian Penal Code, 1860, 43 Indian Penal Code (IPC), 246 Indian Women’s Battle for Freedom (Kamaladevi Chattopadhyay), 215 Japanese Women’s University, 26 jauhar custom, 7 Jayashri, Shrimati, 191 Jha, Mahamahopadhyaya Ganganath, 46 Jhaveri, K.M., 28 Jog, V.J., 28 Jones, William, 41

Joshi, Anandibai, 18 Joshi, B.H., 98 Joshi, Jankibai, 95 Joshi, Rajratna Vasudev Vinayak, 51 Joshi, Sir Moropant, 47 Joshi, V.V., 47 Kane, P.V., 98 Kanitkar, Kashibai, 18–19 Kapoor, Jaspat Rai, 170 Kara, Maniben, 22 Karachi Resolution (of Congress), 38 Karmarkar, D.P., 195 Karpatri, Swamy, 184–6 Karve, Maharshi Dhondo Keshav, 25 Karve Matric, 26 Kaur, Rajkumari Amrit, 24 Kher, B.G., 27 Kibe, Rao Bahadur Sardar M. V., 95 Kishwar, Madhu, 41fn31, 41fn33, 215 Kosambi, D.D., 5 Kripalani, Sucheta, 154, 156–8 Krishnan, Parvati, 195 krithrima adoption, 67 kulinism, practice of, 15 Kunzuru, Hirday Nath, 169 Lakhanpal, Chandravati, 195 Law and Gender Inequality: The Politics of Women’s Rights in India (Flavia Agnes), 212 law–consciousness, relationship between, 217–22 Legal Disabilities Day, 1934, 36–7 Levy, Harold, 210 The Liberating Power of Symbols (Habermas), 221

INDEX

Lipowsky, Angeles J. Almenas, 210–11 Mahabhasya (Patanjali), 5 Maharani Chimnabai Udyogalaya, 22 Maitra, Lakshmi Kanta, 172–3, 175–6 Manusmriti, 6, 11, 41 Marumakkattayam system, 198–9 matrimonial advertisements, 229–30 Mayne, J.D., 46 Mehta, Hansa, 27, 37, 69, 154–6 Mehta, Lady Taraben, 104 Mehta, Ratanben M., 22 Mitakshara system, of inheritance, 6–7, 41, 43, 48, 65–7, 199–200, 213 Mitta, Manoj, 252–3 Mitter, Dwaraka Nath, 51, 60, 63, 84–93, 256 MontagueChelmsford reforms, 1918, 45 Montague-Chelmsford Report, 1918, 45 Montague’s Declaration, 1917, 45 Motiwala, B.N., 21 Mr. and Mrs. 55 (film), 195–6 Mukherjee, Radha Kumud, 4, 4fn9 Mukhopadhyay, Maitrayee, 235 Mulla, Sir Dinshaw, 46 Motherhood ( and Hindu Code Bill) , 110–22 Muslim Satyasadhok Mandal, 253 Muslim Women’s (Protection of Rights on Divorce) Act, 1986, 251 Naidu, Sarojini, 22–3, 37, 38fn26 Nanavati, Maniben, 22 Nandy, Ashish, 14 National Commission for Women Act, 1990, 249

285

National Commission for Women (NCW), 249 National Committee on the Status of Women, in India, 2 National Human Rights Commission, 248 National Planning Committee (NPC), 37 Navalrai, Lalchand, 59 Nawaz, Beghum Shah, 37 Nehru, Jawaharlal, 141–6, 178,187–90, 192–3, 203 Nehru–Ambedkar relation, 146–54, Nehru and Rajendra Prasad debate (about the necessity of Hindu Code Bill), 161–8 Nehru, Rameshwari, 36, 36fn17 Neogy, K.C., 59 Nigam, Savitri, 195 Omvedt, Gail, 10 Pacific Affairs, 179 Palkicha Gonda, 20 Panday, Ramji, 95 Pandey, Rameshwar, 75 Pandit, Vijaya Lakshmi, 37 Panini, 5 Paramahamsa, Sri Ramakrishna, 10 Paramanand, Seeta, 195 Paramananda, Bhai, 58 Paranjape, Raghunath, 26 Parashar, Archana, 212–14 Parsi women, 21 Patanjali, 5 Patkar, Sir Sitaram, 27 patriarchal values, challenges at, 8–21 British rationality, 8 dynamics of caste system, 9–21 Phadke, Leelabai, 97 Phule, Jyotiba, 11

286

INDEX

Phule, Savitribai, 18–19 political debates, on Hindu Code Bill Ambedkar’s view, 143–6, 170–71 conspiracy theory, 169 correspondence between Nehru and Ambedkar, 146–54 correspondence between Nehru and Rajendra Prasad, 161–5, 167 correspondence between Rajendra Prasad and Sardar Vallabhbhai, 165 Gandhi’s view, 135–40 Indian National Congress, 134, 161 Jawaharlal Nehru’s view, 141–3 legislative debates, 167–77 liberalist views, 135–60 objections in daughter inheriting a share in property, 171–2 objections in marriage and inheritance laws, 175–7 patriarchal orthodoxy views, 160–77 women legislators, 154–60 polygamy, 8 The Position of Indian Women in the Light of Legal Reform (Lipowsky), 210–11 pratiloma marriage, 10 Premchand, Maneklal, 37 Principles of Hindu Law (Sir Dinshaw Mulla), 46 Progressive Organization for Women (POW), 238 public opinion, Hindu Code Bill. See also Hindu Code Bill, evolution of in 1945, 85–6 absolute estate to widows, 92

Ahmedabad Bar Association, 77 All India Hindu Mahasabha, 80 All India Women’s Conference(AIWC), 105 assessment of, 131–2 attitude of religious leaders and organizations, 78–9 Belgaum Bar Association, 76 Bharar Dharma Mahamandal of Benaras, 79 Bhatia Stri Mandal, 95 Bombay Presidency, 93–100 Bombay Press, 100–107 Darbhanga Bar Association, 78 daughter’s share in property, 91 Dharma Nirnaya Mandal, Lonavala, 107–10 divorce in sacramental marriages, 90, 117–18 Dwarkanath Mitter’s note of dissent, 84–93 Gadarwara Bar Association, 77 guardianship and custody, 120–2 His Holiness Jagatguru Sri Sankaracharya, 79, 106 His Holiness Sankaracharya of Kanchi, 106 His Holiness Sri Jagat Guru Sri Shankarachaya Swamigai, 78–9 Khargone Bar Association, 77 land rights, 128–31 Lingayat Virashaiva Samaja Sudharana Sangha, 95 Madras Bar associations and Bar Councils, 78 Mahamahopadhyaya Pandit Vasudeva Shastri, 79

INDEX

Maharani of Natore, 81–2 Maharastra Brahman Sabha, 95 mitakshara co-parcenary rights, 93 monogamy, 97–8 motherhood and adoption rights, 118–20 opinion of law societies and bar associations, 76–8 opposition against codification process, 94–5 opposition of religious groups, 79–80 opposition through press coverage, 105–7 Patna Bar Association, 78 property rights, 122–8 Purdanishins of Calcutta, 81–2 religious organizations of women, 82–4 Report of the Hindu Law Committee, 1947, 83–4 rights in matrimonial home, 116–17 Sanatan Dharma Sabha, 79 Sanatan vedic Dharma Sabha, 95 Sholapur Bar Association, 96 Sitapur Bar Association, 78 social reform associations, 96 Sri Kanchi Kamakothi Pithadhipati, 78–9 themes of the bill, 110–31 Times of India report, 100–2 women, views of, 80–4 Women’s organizations, 103–5 Rai, Lala Lajpat, 36 Rajwade, Lakshmibai, 37 Ramabai, Pandita, 18–19 Rand, Walter Charles, 19 Ranade, Ramabai, 22

287

Rangrao, 20 Rani of Mandi, 35–6 Rao, Kitty Shiva, 56, 61 Rashtriya Stree Sangha, 24 Rashtriya Swayamsevak Sangh(RSS), 18 Rashtriya Swayamsevak Sangh (RSS), 160 Rau, B.N., 51, 57–60, 83 Rau Committee, 51, 61–2, 76 Ray, Renuka, 37, 58–60, 154, 158–9, 179 Reddy, Muthulaxmi, 36, 36fn20, 137–9 Regulation Code, 1827 (Elphinstone Code), 42 Religion, Law and the State in India (Derett), 209 Roop Kanwar tragedy (sati), 242fn113 Roshni (Journal of AIWC), 56–7 Ross, Aileen D., 226 Roy, Raja Ram Mohan, 10, 14, 42, 59 Roy, Renuka, 179 Sahgal, Manmohini Zutshi, 33 Sahiba, Lalitkumari (Rani of Mandi), 36, 36fn16 Salt Laws, 24 Sane, Geeta, 21 Santanam, K., 50 Sapru, Tej Bahadur, 35 Saptapadi, 198 Sarabhai, Ambalal, 36 Saraswati, Pandita Ramabai, 25 Sarda, Har Bilas, 47 Sarda Act, 36 Sareeta, case of, 250–1 Sarkar, Nil Ratan, 30 Sarwate, S.R. 73

288

INDEX

Sarwate, V.S., 170 sati, practice of, , 7–8, 14, 42 Self Employed Women’s Association (SEWA), 253 Sen, Amartya, 2 Sen, Sushama, 37, 192 Sen, Sushma, 36 sexual harassment, at the workplace, 247–8 Shah, Nandita, 216, 236 Shah Bano Case, 251–2 Sharda Sadan, 19 Sharma, Sangeeta, 248 Shinde, Tarabai, 18, 20 Shreemati Nathibai Damodar Thackersey Women’s University (SNDT), 25–31 shruti, smriti, and sutras, 4–6 Simon Commission Report, 1930, 81 Singh, Babu Ramnarain, 169 Singh, Indu Prakash, 210 Sitaramayya, B. Pattabhi, 68 SNDT Women’s University Bill, 30 social empowerment, 1 social status of women, in India, 2 Som, Reba, 144fn28 Brahmanism and, 16–17 British notion, 8–9 Dayabhaga system, 6–7 double status disadvantage, 12 in Islamic law, 37, 40 in Manusmriti, 6 Mitakshara system, 6–7 nineteenth century, 8–21 period of the sutras, 6 during the Peshwa rule, 16 post-muslim invasions, 7 property rights, 6 in Rigveda, 4 social resistance to Women’s education, 29–31 socio-religious reform movements and, 12–14, 18–21

twentieth century, 21–5 vedic and post-vedic periods, 4–6 Young Bengal Movement, 13–14 Southborough Franchise Committee, 38 Special Mariage Act, 1872, 187–8 Special Marriage (Amendment) Act, 1872, 71 Special Marriages Bill, 1952, 188 Nehru’s remarks, 188–9 Srinivas, M. N., 10 State, role of, 232–7 Statement of Industrial Policy, 1945, 134 Storrow, Reverend E., 9 Stree Zoroastrian Mandal, 21 stridharma, 20 Stri Purusha Tulana, 20 The Structural Transformation of the Public Sphere(Habermas), 221 Subbaroyan, Radhabhai, 37 Swadeshi movement, 33 Swaminathan, Ammu, 192 Talaq Mukti Morcha, 253 Tarkapanchanana, Jagannatha, 41 Tata, Herabai, 38 Tata, Mithan, 38 Thakersay, Sir Vithaldas, 27 Tharu, Susie and K. Lalita, 18fn51, 19fn55, 31fn87, 255fn131 Theory and Practice (Habermas), 220 The Theory of Communicative Action (Habermas), 220 Tilloo, Pandit Vinayaka Sakharama Sastri, 95 Tope, T. K., 206 Towards Equality report, 216, 223, 227, 229, 231, 256

INDEX

Uniform Civil Code, 73, 134, 172, 208 Universal Civil Code, 190 Ursekar, H.S., 206 vedic and post-vedic periods divorce and remarriage, 5 marriage, 5, 8 social status of women, 4 son preference, 5 stridhana, 5 Vidyalankara, Mrityunjaya, 14 Vidyasagar, Ishwar Chandra, 15–16, 42–3 Vishakha judgement, 247–8 Vivadarnava Setu, 41 Vivekananda, Swami, 11 Weber, Max, 217–18 Wilcox, Clyde, 12 Women legislators (contribution to the Hindu Code Bill debate), 154–60 Woman’s Role in Planned Economy, 37 women average daily earnings, 1994, 225 education system and, 222–3

289

female literacy rate, 222–3 Gandhi’s projection of, 33, 136–40 image in the media, 242–4 in Indian Politics, 1952 to 1971, 223 Indian State’s definition of, 232 in labour market, 224–32 participation in national movement, 33–4 State policy of reservation for, 232–7 Women and Family Law Reform in India (Archana Parashar), 212 Women and Social Change in India (Everett), 211 Women’s Council of India, 23 Women’s Indian Association, 22 Women’s Movement in India (Pratima Asthana), 216 women’s movements Rights of Muslim Women, 251–3 and social consciousness in independent India, 237–42 suffrage, 22 women’s organizations and reforms of Hindu laws, 34–8 Wood, Sir Charles, 28