Hindu Code Bill

The Hindu code bills were several laws passed in the 1950s that aimed to codify and reform Hindu personal law in India, abolishing religious law in favor of a common law code. Following India's independence in 1947, the Indian National Congress government led by Prime Minister Jawaharlal Nehru completed this codification and reform with the help of B. R. Ambedkar. This process was started during the British rule of India. According to the British policy of noninterference, personal-law reform should have arisen from a demand from the Hindu community. That was not the case, as there was significant opposition from various Hindu politicians, organisations and devotees; they saw themselves unjustly singled out as the sole religious community whose laws were to be reformed. However, the Nehru administration saw such codification as necessary to unify the Hindu community, which ideally would be a first step towards unifying the nation.Williams, p. 107. They succeeded in passing four Hindu code bills in 1955–56: the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act.Williams, p. 106. They continue to be controversial to the present day among women, religious, and nationalist groups.

Background

While there may be a permanence of certain fundamental beliefs about the nature of life that is pervasive through Hinduism, Hindus as a group are highly non-homogenous. As Derrett says in his book on Hindu law, "We find the Hindus to be as diverse in race, psychology, habitat, employment and way of life as any collection of human beings that might be gathered from the ends of the earth." The Dharmaśāstra—the textual authority on matters of marriage, adoption, the joint family, minorities, succession, religious endowments, and caste privileges—has often been seen as the private law of the Hindus. However, whatever is known and interpreted about this Hindu law is a jumble of rules, and often inconsistent and incompatible with one another, that are lacking in uniformity.John D. M. Derrett. ''Hindu Law Past and Present''. 1957. Calcutta. pp. 1–80.

Hindu law's content and structure has ultimately survived as a result of its administration by British judges who gave a lot of attention to Hindu religious-legal texts, while simultaneously invoking English procedure, jurisprudence, and English law to fill any gaps. Opinions often differ as to the extent of the discrepancy between the current law and the public's needs, but most agree that a substantial inconsistency exists.

In 1921, the British Government had already gone so far as to welcome individual Members' efforts at piecemeal codification, a limited but significant shift in policy. According to Levy, that year, "two Hindu legislators, one a lawyer in the Central Legislative Assembly (the lower House), the other an eminent scholar of Sanskrit in the Central Council of States (the upper House), initiated resolutions seeking Government support for a Hindu Code of family law."Harold Lewis Levy.
Lawyer-Scholars, Lawyer-Politicians and the Hindu Code Bill, 1921–1956
. ''Law and Society Review''. November 1968. Vol 3, issue 2/3. pp. 303–316. In the next two decades many such fragmentary measures were enacted, modifying the Hindu law of marriage, inheritance, and joint family property. As a whole, the enacted bills carried further a modest trend toward increasing property alienability, reducing the legal importance of Varna (class), sanctioning religious heterodoxy and conversion and, most significantly, improving the position of women. However, it was the passing of the Hindu Women's Rights to Property Act (Deshmukh Act) in 1937, which had given the widow a son's share in property that was one of the most substantial steps towards the Hindu Code Bill.

Uniform Civil Code

In December 1946, the Constituent Assembly convened to devise a Constitution for the soon-to-be-independent India. Some argued that India's various personal laws were too divisive and that a uniform civil code should be instituted in their place. And once the notion of a uniform civil code was put forward, it soon became accepted as an important part of the effort to construct an Indian national identity, over the separate identities of caste, religion and ethnicity. Some resistance to the code was on the grounds that its imposition would destroy the cultural identity of minorities, the protection of which is crucial to democracy. Certain feminists thus argue that the uniform civil code debate balances on the polarity of the state and community, rendering the gender-based axis upon which it turns, invisible.Nivedita Menon.
State, Gender, Community: Citizenship in Contemporary India
ubscription needed ''Economic and Political Weekly''. 31 January 1998. Volume 33, issue 5. Reproduced o
JSTOR
Retrieved 15 April 2012.

A compromise was reached in the inclusion in the first draft of an article that compelled the state "to endeavour to secure for the citizens a uniform civil code throughout the territory of India." The clause, a goal, not a right, became Article 44 in the Constitution. It was widely criticised by proponents of a uniform code because it contained no mechanism and provided no timetable for enforcement. However, Prime Minister Jawaharlal Nehru and others insisted on its inclusion, arguing that even if it was only symbolic, it was an important step towards national unity. Though Nehru himself likely would have favoured a uniform code, he knew that personal laws were linked with religious identity in India and therefore could not be easily abolished. Recognizing that what he wanted was not a political reality, he settled for an unenforceable clause.Williams, p. 97.

Beginning of codification

Initial draft

In 1941, the colonial government had appointed a four-member Hindu Law Committee, known as the Rau Committee after its chairman B. N. Rau. The committee was to resolve doubts about the Deshmukh Act's construction, ensure that its introduction of new female heirs was not made at the expense of the decedent's own daughter and consider bills introduced to abolish women's limited estate and to make polygamy a ground for separate residence and maintenance. Later in 1941, the Committee reported that the time had come for a Hindu Code. Social progress and modernization could only be achieved by fundamental reforms, which recognized gender equality. The code was to be shaped with the aid of orthodox, conservative and reformist Hindus and by a comprehensive blending of the best of the current schools of Hindu law and the ancient texts.

The 1941 Report was accompanied by two draft bills, each of which was laid before a select committee of both houses of the legislature. Much publicity was given to the project, and as a result of the committees' reports, the Hindu Law Committee itself was revived in 1944 and under its chairman, B. N. Rau, prepared a Draft Code dealing with Succession, Maintenance, Marriage and Divorce, Minority and Guardianship and Adoption. It was that Code that was widely circulated and discussed and given the name "Hindu Code Bill". After publication in twelve regional languages and a wide publicity campaign, the Rau Committee toured the country and examined witnesses. The result 1947 report of the committee included and went far beyond the 1941 proposals, recommending the abolition of the joint-family property system, the introduction of the daughter's simultaneous succession with the son to the father's estate, the abolition of the barrier to intercaste marriages, the assimilation of civil and sacramental marriages, and the introduction of divorce. It was the intention of the government that this first draft should become law on 1 January 1948, but the whole project was temporarily suspended when independence led to the priorities of the legislature to be consumed with the task of creating the new regime.

By 1943, a significant opposition to the code had begun to develop inside and outside the Legislature. In the 1943–44 legislative debate, opponents and supporters alike accepted as fact the view that the majority of the legal profession continued to support the code. Opponents tried to undercut the perceived support by arguing that lawyers had become westernized or that the merits of the bill were for the people to decide, not lawyers. Nehru had already been forced to retreat from an original position of passing the bill. However, his position greatly improved in 1951 when he succeeded Purushottam Das Tandon as Congress president. He chose not to test his combined powers as prime minister and party president, in regard to the bill at that time and allowed it to lapse. He, however, promised fellow supporters that he would campaign on the bill, with plain arguments on the merits.

Ambedkar's draft

The Ministry of Law revised the first draft in 1948 and made some small alterations to it, making it more suitable for discussion in the Constituent Assembly, where it was finally introduced. It was referred to a select committee under the chairmanship of law minister B. R. Ambedkar, and the committee made a number of important changes in the Bill. This edition had eight sections: part one delineated who would be considered a Hindu and did away with the caste system. Significantly, it stipulated that the Hindu Code would apply to anyone who was not a Muslim, Parsi, Christian or Jew, and asserted that all Hindus would be governed under a uniform law. Part two of the bill concerned marriage; part three adoption; part four, guardianship; part five the policy on joint-family property, and was controversial as it included the nontraditional allocation of property to women. Part six concerned policies regarding women's property, and parts seven and eight establis