Debating Patriarchy: An excerpt

The decade of 1940s was a vital decade in Indian history. The nation was bestowed with the unprecedented opportunity to transform itself as a modern nation. To build a modern 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 a democratic set up. As economic and political forces reconfigured themselves to contribute towards the emergence of the modern economy, the cultural milieu also experienced the need for alignment to 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, epitomised 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 modernisation.

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 Hindus justice in an egalitarian fashion, while trying to foster a framework that provided women the space to operate freely and contribute to the economic prosperity of the nation. The Hindu Code Bill also sought to remove the discriminations towards the backward castes within the Hindu fold and in that process also 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 in the creation of the modern Indian social psyche.

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 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 law met with difficulties of implementation at the ground level.  While introducing the legal system in the administration of the country,  the British faced difficulties in accomodating the plethora of Indian customary practices within its rational structure.  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 law in the late eighteenth century. Purely an administrative initiative, this did not attempt radical changes and therefore did not aggravate in the Hindu community. More than a century later, the Montague-Chelmsford Report of 1918 and the Government of India Act of 1919 promised a new scope for the Indian legislative initiative and granted the legislature the power to review and reform social legislation as part of the broader objective of the gradual development of self-governing institutions, as an integral part of the British Empire. In 1921, the need for codification of Hindu law was debated in the legislature comprising of representative Indians, with very 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 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 nineteenth century reforms were initiated by social reformers, the central rallying force behind the twentieth-century legal reforms were women’s organisations. By 1940, legal inconsistencies raised their head yet again 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 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. The major concern of the Hindu Code Bill was rights in marriage, property, inheritance, adoption, maintenance and guardianship.

The initiative to prepare a uniform Hindu Code for the Hindus was significantly different from the earlier initiatives of 1776 and 1921. For the first time, the proposed Hindu Code Bill also had a significant progressive content that was of special importance for gender equality in India.  By the time, the women’s organisations have made their presence felt in the socio-political space. The issues of divorce, monogamy and property rights to daughters and widows have already been brought to the fore by them. The support of liberal faction of national leadership and the women’s organisations contrasted steeply with the views of patriarchal orthodoxy that bitterly opposed the provision of divorce, the introduction of monogamy, and changes in property rights. The debate over the Bill was far more balanced than its predecessors.

It was also broad based. The communications surrounding the Hindu Code Bill in the 1940s encompassed the whole nation. The debate was far more intense than the 1921 debate, with the participation of social associations, religious bodies, legal associations and women’s organisations from many parts of undivided India.  The discourse surrounding the Hindu Code Bill, therefore, provides an 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 regarding 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.

For the student of the Indian social history and the status of women, there cannot be a historical document more relevant than the Hindu Code Bill. In all counts, the passage of the Bill and the associated debate was intense, being referred, circulated and translated in 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 lack of authentic documentation and analysis and literature inversely proportional to its vast influential character.

Several reasons can be advanced as plausible explanations for this neglect of 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 objects of analysis in social research. If historical analysis of the Hindu Code Bill was not altogether absent, it was a mere slanted glance in the lawyer’s domain rather than a thorough enquiry.

The lack of historical research has been compounded by a lack of general writings on the subject.  Leaders and politicians like Jawaharlal Nehru who was very much part of the Hindu Code Bill did not get the time to ponder and write on the Bill, at a time they had to march forward and take 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 organisations, 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.  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 law in independent India, the existing literature on the Hindu Code Bill converged on the argument that in practice, the Hindu 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 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 debate 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. 

Note from the author:

"An overarching component of the debate of codification of family laws in India was the ultimate objective of having a Uniform Civil Code (UCC) for all communities, with a desire to create a level playing field across all religious communities. The utopia was omnipresent in all major debates on codification both in public and political spheres but could never really be translated into a reality. The discourse over the implementation of Uniform Civil Code in India, enshrined in the Directive Principles of the Indian Constitution of 1947, resurfaced in the Indian political and public sphere from time to time, in the context of redefining family laws to empower women. The journey towards Uniform Civil Code gained renewed relevance with Bharatiya Janata Party’s rise to power in 2014. BJP’s 2014 election manifesto promised the introduction of UCC, and the Law Commission has taken several steps to initiate public debate by the circulation of a questionnaire. Books on UCC are mostly written by legal scholars explaining the various personal law reforms and their commonalities and discrepancies. A critical look at the UCC discourse from a historical standpoint adds value by placing the contemporary debate in the historical continuum. "

Chitra Sinha’s forthcoming book Uniform Civil Code Debate in Independent India is based on her research on the discourse surrounding UCC at the Center for Gender Research, Uppsala University, Sweden.

Excerpted with permission from Oxford University Press from Debating Patriarchy: The Hindu Code Bill Controversy in India (1941-1956) by NIF author and academic, Chitra Sinha, a comprehensive account of the emergence and evolution of the Hindu Code Bill and the debates surrounding it. The book 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. Available on Amazon.

The New India Foundation