This is the second instalment of a four-part series on the incendiary subject of junking personal laws for different communities—and embracing a Uniform Civil Code. Today we look at how Nehru’s determined campaign to reform Hindu law in the 1950s sowed the seeds for the bitter harvest that we are reaping today.
Editor’s note: The Uniform Civil Code will soon become one of the biggest issues in the upcoming Lok Sabha elections—with the BJP putting it front and centre of its platform. Yet most of us know very little about why we have personal laws or what a UCC may look like. We are therefore doing a four-part series that begins with the origins of the personal laws—traces their evolution in free India—and ends with the current political debate. Part one looked at the origins of personal laws under colonial rule—and the heated debates between framers of the Constitution over establishing a Uniform Civil Code.
Researched by: Nirmal Bhansali & Rachel John
First, the big picture
The British: Starting in the eighteenth century, the British began framing separate ‘family’ laws for different communities. As a result, diverse communities with diverse practices were all dumped into overarching categories like ‘Hindu’, ‘Muslim’ etc. But these laws were basically invented piecemeal by English judges trying to interpret religious custom—with the help of the native elite.
The founding fathers: When framing the Constitution, Indian leaders had a heated debate over establishing a Uniform Civil Code. Liberal supporters viewed it as essential for forging a unified Indian identity—gender equality was secondary. Opponents viewed it as an assault on the fundamental right to religion. In the end, the UCC was included as a Directive Principle—remaining an aspirational goal for a future Indian state.
The post-colonial mindset: Congress leaders embraced the British state’s policy on personal laws—and the tendency to interpret it according to its convenience. The general rule was ‘non-interference’—i.e maintaining the status quo. The Indian state could ‘reform’ these laws—but only when demanded by the affected community. As we will see, the nation’s first prime minister would interpret these terms to suit his political interest and worldview.
The evolution of the Hindu Code
Reforming Hindus first: Nehru firmly believed that a uniform set of laws applied equally to all citizens was the bedrock of a modern nation. Unable to secure support for a UCC, he was determined to push through reforms of the Hindu personal law soon after independence. But why Hindus?
Government officials argued that the Hindu community, comprising 80% of India’s population, first needed to codify its own diverse laws and practices before undertaking any project to unify the nation under one law. The codification and reform of Hindu personal law were presented as the first step in the process of moving towards a uniform civil code. The unification of Hindu personal law and the Hindu community would serve as the foundation or base on which a broader Indian unity would then be built.
So Hindus first, and then the others—an argument Nehru made over and again—sowing the seeds for resentment.
A fierce backlash: Nehru’s proposal was met with great resistance from Hindu leaders and parties. Only a handful were rightwing like the Hindu Mahasabha—which had been marginalised ever since Gandhi-ji’s assassination. In fact, most of the opposition came from Congress’ greatest stalwarts:
Even Dr Rajendra Prasad… tried “to persuade [Nehru] not to go through with the legislation and finally [held] out the threat of refusing Presidential assent to the Bills, if they passed.”... Another prominent Congress leader, Sardar Vallabhai Patel, expressly opposed the HCB but instead of clashing with Nehru, “simply disallowed time in the Parliament for discussion of the Hindu Code Bill and summarily dismissed it.”
The fallout: As a result of the outrage—and great internal pressure–there was no one Hindu Code. Instead, there were three different laws—namely, the Hindu Marriage Bill, the Hindu Adoption and Maintenance Bill, and the Hindu Succession Bill. They put an end to polygamy and gave daughters some rights in her father’s property—and marked a notable step forward.
But, but, but: Most of these reforms were greatly diluted. Many regional or community customs and laws were erased: “[C]odification put an end to the diversity of Hindu law as it was practised in different regions, in the process destroying existing, more liberal customary provisions in many cases.” And as Flavia Agnes notes—the real priority was national unity not equality:
Hence, several pro-women customary practices were discarded for the sake of uniformity. The reforms did not introduce any principle which had not already existed somewhere in India. Despite this, they were projected as a vehicle for ushering in western modernity.
Women failed to receive any significant rights—be it over joint family property, inheritance or even custody of their children.
Where we are now: Hindu laws have been reformed at snail’s pace over the decades. The Hindu Succession Act in 2005 was amended to give daughters a share in ancestral property—which is critical in India. But it does not apply to wives or widows. And there are many patriarchal provisions that remain unchanged to this day (see: conjugal rights). In reality, however, there are innumerable exceptions to these laws in various states—but we will get to those in part four.
Nehru’s unhappy legacy
Our first prime minister pushed through the reforms of Hindu laws—despite fierce resistance from the community. Now, this may make him a hero in some eyes, but he violated the principle of non-interference—no reform unless demanded by the community. So he and his supporters changed the rules to suit his goals:
Supporters tended to rely, therefore, on the moral rectitude of their position. The law, they held, should be reformed and modernised because it was the right thing to do—and since it was, public opinion would come around to their side. They could not, however, base their support on any overwhelming demand for the legislation from the Hindu community. Instead, they had to rely on the support of certain sectors of the Hindu community [who]... were constituted as representing progressive, enlightened, and thoughtful opinion.
But, but, but: When it came to Muslims, Nehru flatly refused to do a thing, saying, “We do not dare touch the Moslems because they are in a minority and we do not wish the [H]indu majority to do it. These are personal laws and so they will remain for the Moslems, unless they want to change them.”
In enforcing this double standard, he did lasting damage. Not only did he give Hindus reason to resent Muslims, Nehru also irreparably weakened the principle of ‘non-interference’:
He also removed much of the stake many Hindus might have had in the idea of noninterference: once Hindu personal law had been thoroughly ‘interfered’ with, there was no particular reason for many Hindus to have any commitment to the principle, especially if it was not going to be applied symmetrically. While these conceptions may or may not have been accurate, reasonable, or justified, they nonetheless comprised the latent sentiments that Hindu nationalists tapped into in the 1980s and 1990s.
Most importantly this: Nehru did even greater injury to Muslims by never forcing a similar debate over reform. He treated the community as homogenous—defined by the ulemas and other conservatives who fiercely opposed change. They became forever positioned as ‘backward’ compared to Hindus:
With respect to the Muslim community, Nehru’s policies further perpetuated the image of Indian Muslims as ‘conservative and resistant to change’. Indeed, Nehru himself assumed they were so, without ever testing the proposition as Hindu opinion was tested. This served to tie Muslims even more closely to their personal law as a (if not the) critical marker of their religious identity, and as separate in the context of an Indian nationality that was supposed to be secular.
The bottomline: They say the road to hell is paved with good intentions. Nehru certainly proved that old adage right. In the next instalment, we will look at how his grandson—Rajiv Gandhi—carried forward that legacy with the Muslim personal law. Yes, we’re going to look at Shah Bano.
The best-informed writing on the debate over the Hindu Code Bill is in Rina Williams’ ‘Postcolonial Politics and Personal Laws’ and Flavia Agnes’ essay in ‘The Oxford Handbook of the Indian Constitution’. We also recommend reading Outlook magazine for a more generous reading of Nehru’s actions.