Chapter 6 Hindu law as personal law:
state and identity in the Hindu Code Bills debates, 1952–1956

Rina Verma Williams

Introduction

As India negotiated the transition from the colonial era to Independence, issues of religion and law came to the forefront of the political agenda. One of the first major legislative accomplishments of India’s newly elected Parliament was the passage of the Hindu Code Bills (HCB) between 1952 and 1956.¹ This series of four bills sought to codify and reform Hindu personal law – a project begun but ultimately abandoned by the British colonial government. A source of significant social and political controversy, this legislation outlined and prefigured the shape that Hindu law as personal law would take in independent India. The politicization of the personal laws reached its apogee in the years after Independence, as Hindu personal law came to be entangled in issues of community, identity, and politics.² Two key transformations begun in the colonial era came to fruition in this critical period: Gender became the site on which modern Hindu law (as personal law) has been constructed; and the modern state became the institution through which modern Hindu law (as personal law) must be negotiated. Examining the debates over, and surrounding, these bills – both within and outside the institutions of government – demonstrates these key transitions in Hindu personal law post Independence.

These two processes worked ultimately to disengage the legal category of “Hindu law” from its traditional roots in Dharmastra: Rather than religious texts being the guiding force in defining Hindu law, Hindu personal law came to be embedded instead in the discourses and contradictions of modern identity and state power. The first site of transformation was gender: Religious and national identities were constructed in gendered terms during the debates. Secular nationalists supported the bills as a way to achieve national unity and progress by enhancing and modernizing Hindu women’s legal rights and social status. Religiously oriented opponents of the bills sought to preserve a socioreligious conception of Hindu social customs and traditions by immobilizing any perceived change to them, and thus to women’s legal and other rights and status.

Second, because these gendered identities were embedded in a legal system – of Hindu personal law – they perforce had to be negotiated through the state. This has been true since then Governor-General Warren Hastings’s institutionalization of the system of personal laws in 1772.³ As India transitioned to independence, the postcolonial Indian state inherited the mantle of its colonial predecessor as the institution through which changes to Hindu personal law had to be negotiated. The influence of government and political institutions was evident in the debates over the HCB, and pointed up the contradictions inhering in the tripartite relationships between religion, law, and state.

This chapter draws on Parliamentary debates; legislative and government reports; correspondence of political leaders; public opinion surveys; and the activities of social organizations in the 1950s to trace these two processes that shaped the development and evolution of Hindu law as personal law in postcolonial India. The first section will briefly outline the historical background of the HCB. The second and third sections will examine, in turn, gender as the site on which Hindu personal law was constructed, and the role of state as the institution through which Hindu personal law was negotiated. In a brief final section I will touch on some implications of the analysis.

Historical background: Hindu law to personal laws

India’s personal laws represent a key part of the persistent legal legacy of the British colonial era (Dhavan 2001; Williams 2006). After their institutionalization in India in 1772, India’s personal laws served as a template for British colonies in Africa and elsewhere. When these colonies attained independence, many of them retained the personal laws. Most personal laws today are an amalgam of three types of laws: (1) customary laws, originally unwritten but codified over time, based on the traditions and practices of different regions or communities; (2) imported Western laws and accumulated case law; and (3) religious laws, associated with the religions that evolved their own self-contained, self-regulating social systems, including a legal system. The last category includes Islamic, Hindu, and Judeo-Christian laws. In South Asia and parts of the Muslim world, personal laws are applied primarily on the basis of religion. In other parts of Asia, Africa, and the Caribbean, they are applied on the basis of tribe, custom, and ethnicity as well as religion (Hooker 1975; Menski 2006).

The HCB represented the culmination of more than a century of debate about the relative virtues and vices of codifying Indian laws (Hussain 2003). Following Derrett (1957), “codification” refers to the creation of a comprehensive code of laws with minimal room for interpretation and applicable to all members of the community for which it is meant. “Reform” is widely construed to mean substantive modernization of the laws, often with the goal of securing greater equality on the basis of gender. Reform and codification may or may not necessarily occur together. Both have implications for the stric sources of Hindu law. Reform, by definition, means a break with the substantive content of original sources. Codification is more subtle: Though it purports to be about form and not content, several studies have shown how the processes of compiling, collating, and documenting worked to rigidify and solidify customs and traditions which had been lived and experienced flexibly and contextually. The net effect was to flatten into two dimensions what had been multi-dimensional lived realities – more often than not to the particular disadvantage of women (Oldenburg 2002). In British India, proponents of codification carried the day, except with respect to personal laws. In the middle of the nineteenth century, three Indian Law Commissions produced the Code of Civil Procedure (1859); the Indian Penal Code (1860); and the Code of Criminal Procedure (1861). The idea of codifying the personal laws seems to have arisen around this time as well, but the government was disinclined to make such an effort. The reasons are not entirely certain, but there was hesitation to interfere in what were seen as “native religious affairs,” combined with the conviction that codifying religious personal laws would be an exceedingly complicated and controversial task (Williams 2006: 74–5).

Until the 1920s, neither the British colonial government nor Hindu community leaders seemed inclined to consider either the reform or codification of Hindu personal law. However, this did not mean that extensive social reform legislation was not pursued throughout this era. British colonial authorities reformed aspects of Hindu social tradition in a piecemeal fashion throughout the latter half of the nineteenth century and into the early twentieth century; by one count, over twenty legislative acts that affected Hindu social and religious tradition were passed between 1865 and 1939 (Mitra and Fischer 2002). Examples of such legislation included the abolition of sat (1829); the Caste Disabilities Removal Act (1850); the Hindu Widows Remarriage Act (1856); and the Age of Consent Act (1891). Many of these acts were meant ostensibly to improve the status of “native” Indian women – in Gayatri Spivak’s now (in)famous terms, such legislation represented “white men . . . saving brown women from brown men” (1988: 296). These reforms were often carried out with the support of, and even at the behest of, Indian reformers such as Raja Rammohan Roy – though with minimal involvement of women themselves. The literature on this social-reform legislation is extensive and will not be covered here (Carroll 1983; P. Chatterjee 1996: Chapter 6; Mani 1998; Sinha 1995). Rather, the important point for this analysis is, on one hand, the sharp disjuncture between a rhetoric of noninterference with respect to Hindu personal law and, on the other hand, an extensive interference with Hindu social customs in a piecemeal fashion. A comprehensive analysis of the causes and consequences of this fairly striking contradiction is much needed and would fill an important gap in our understanding of the development of Hindu law as personal law.

After the late nineteenth century, some discussion of codifying Hindu personal law arose again in the 1920s. In 1921, resolutions were introduced into the Council of State and the Legislative Assembly (the upper and lower houses, respectively, of the Viceroy’s Legislative Council), by Indian members of the Council. These resolutions called on the government of India to form a committee to study the possibility of drafting a Hindu Code. In this early stage, concerns about the strength and integrity of links between Hindu personal law and its stric bases were evident on both sides of the debate. Proponents of codification expressed their concern that the original, religious textual sources of Hindu personal law were being eroded by piecemeal legislation. They saw codification as the best means to preserve the original religious sources and substantive content of the laws, and protect Hindu law from the ravages of modernization and piecemeal legislation. Opponents of codification, on the other hand, viewed codification as the “enemy” of classical Hindu law. They feared it would create rigidity in the laws and stamp out local customs, and destroy the flexibility and interpretive aspects of the original laws. Either way, both sides framed their arguments for or against codification in terms of its anticipated effects on religious textual laws. In the end, the government succeeded in convincing the movers to withdraw their resolutions. Thus they managed to avoid a vote and evade the issue (Levy 1973).

The impetus to take on the reform and codification of Hindu personal law emerged finally in the 1940s. The 1937 Hindu Women’s Right to Property Act (also known as the “Deshmukh Act”) introduced substantial changes in how Hindu joint family property devolved, creating significant difficulties of interpretation and application. To sort the situation out, the government formed the first Hindu Law Committee (under the chairmanship of Sir B. N. Rau). The Committee recommended in 1941 that key aspects of Hindu personal law should be reformed and codified, beginning with the laws of succession and marriage. Subsequently, a second Rau Committee was appointed; in 1944, they reiterated their recommendation to codify and reform Hindu personal law, and presented the government with a draft Hindu Code. These proposals generated enormous controversy (including heated support as well as opposition), but ultimately gained government favor.

A significant question yet to be fully analyzed in the literature is how and why this change in British colonial government policy came about – from opposing or avoiding the issue to supporting codification and even reform of Hindu personal law. By the 1940s, it was evident that a transfer of power to Indian hands was coming. The debates of the 1940s prefigured, in many ways, the post-Independence debates on the HCB that were to come. They captured the transition to postcolonial modes of thinking about Hindu personal law, in which the connection to classical Hindu law recedes as a concern, to be replaced instead by modern concerns of identity and state power. During the 1940s, discourses of modernization, progress, religious and national identity, and women’s rights emerged in ways they had not in prior decades. Supporters argued the need for Hindu society to modernize itself, and held that reform and codification would build unity within the community. Opponents, on the other hand, held that reform and codification would lead ultimately to the destruction of Hindu society itself, and that without public support and popular demand, such changes would constitute government interference in religious affairs. Here a concern for conformity with religious textual sources, or the preservation of links to them, was virtually absent from the debates. It was at best represented by a concern for the foundations of Hindu society: Religion and society were transposed in such a way that Hindu social customs and traditions were more at issue than Hindu law per se.

This transition away from the Dharmastric bases of Hindu law, and to modern discourses of identity, was virtually cemented after Independence. India’s first Prime Minister, Jawaharlal Nehru, made reforming and codifying Hindu personal law a top priority of his government. He revived the second Rau Committee’s draft code and placed it under the stewardship of B. R. Ambedkar, a prominent Dalit leader and India’s first minister of law. Ambedkar’s omnibus Hindu Code Bill consisted of eight major parts. Part I defined who was a Hindu: It stated that the Hindu Code would apply to any Indian who was not a Muslim, Parsi, Christian, or Jew, and established one personal law applicable to all Hindus. Part II of the Code dealt with marriage; Part III dealt with adoption; Part IV dealt with guardianship; and Part V, perhaps the most controversial part, with joint family property. Part VI of the Code concerned women’s property; and Parts VII and VIII dealt with succession and maintenance, respectively. The Code departed from classical Hindu law in four main ways. First, it provided for separation or dissolution of a Hindu marriage, previously unknown in Hindu law (although lower castes had long practiced divorce and remarriage by custom). Second, it abolished the Mitkar joint family system and established the Daybhga for all Hindus.⁴ Third, it gave a share of inheritance to daughters in intestate succession; and, finally, it gave widows absolute rather than restricted (or limited) property rights (Gajendragadkar 1951).

Debate on the HCB began in the Constituent Assembly in February 1949. It encountered stiff opposition from conservative Assembly members from the start, and its progress was sporadic. As the debates drew to a close, it became clear that major compromises would have to be made if there was to be any hope of passing the bill. Yet repeated concessions seemed only to revitalize the opposition rather than pacify them, and to discourage further the supporters of the HCB. In October 1951, Nehru formally announced that the government would delay consideration of the HCB until after the first general elections. Just days later, Ambedkar resigned as law minister, citing Nehru’s abandonment of the HCB as primary among his reasons for doing so.

Despite these setbacks, Nehru made the HCB a central theme of the election campaign. The election results certainly seemed to give Nehru the necessary mandate to pursue the HCB in the newly elected Parliament. The Congress Party swept the Lok Sabha, winning 364 out of 489 seats and 45 percent of the vote. In the Rajya Sabha, they controlled 146 out of 216 seats. The HCB was split into the four constituent bills that were introduced, debated, and passed by Parliament between 1952 and 1956. In the debates over these bills, gender and state became critical sites of transformation as Hindu personal law became progressively enmeshed in modern, gendered constructions of religious and national identity.

Modern identity in Hindu personal law: gender, religion, nation

As concern for the integrity of the stric bases of Hindu personal law declined, the importance of gender, religious, and national identity became a central focus of concern in debates over the HCB. While religion was an important feature of the debates, the Hinduism in these debates represented more a set of social and economic customs and traditions, than classical textual religion. Neither proponents nor opponents of the HCB made significant reference to the Dharmastric sources of Hindu personal law; rather, both sides framed their arguments in terms of modern, gendered identities.

Proponents of the HCB came from a wide range of groups. Within the Parliament as well as outside, they included both men and women representing a range of political parties – the Congress Party, of course, included many supporters, as did the parties of the left. Women Parliamentarians were overall staunch supporters of the HCB. The first Lok Sabha included twenty-three women. The majority (fifteen) belonged to the Congress Party. One belonged to the Communist Party and another to the Hindu Mahasabha. (The rest were independent or did not have a party affiliation specified.) The picture in the Rajya Sabha was quite similar: Of twenty women, at least seventeen were members of the Congress Party (another was nominated and two were listed as belonging to “other” parties).⁵

Virtually all those who spoke against the bills within Parliament were men. Only a handful were from the opposition parties of the Hindu nationalist right. These parties vigorously opposed the bills, but they won minimal representation in India’s first Parliament: The Hindu Mahasabha and the Jan Sangh together held a mere six seats. Instead, much of the conservative opposition came from within the Congress Party itself. Even Dr. Rajendra Prasad, India’s first president and a leading member of the Congress Party, butted heads with Nehru over the HCB.⁶ No women spoke against the bills in Parliament, although several conservative Hindu women’s organizations (composed largely of upper-caste and upper-class Hindu women) formed to oppose the legislation.

Throughout the debates on the HCB, gendered arguments waxed as concern for classical religious law waned. Both opponents and supporters referenced religion in their arguments, but in very different ways. Opponents of the HCB used the language of religion, religious tradition, and even Hindu religious texts to argue against the HCB. They did make scattered references to the stric (and even Vedic) roots of Hindu personal law – as when Jaswant Singh asserted that the HCB went “against the tenets of our Shastras and against our Vedas.”⁷ But such remarks were few and far between, made not by religious scholars but by lawyers and politicians. The Hinduism they sought to protect was more a socioreligious tradition than a return to, or a resurrection of, classical or textual Hindu law.

Religion also played an important role in supporters’ arguments for the HCB, but in the reverse way. HCB supporters flatly denied that the personal laws were exclusively or even primarily matters of religion. Rather, they maintained that modern personal laws were largely a British colonial creation: “Today we are following Mayne’s codification of Hindu law; we are not following Manu or any other law giver. We are following the law as interpreted and accepted for practice in the British courts of law.”⁸ Supporters noted that classical Hindu lawgivers never hesitated to innovate custom and law and adapt them to local circumstances and the needs of the day. So HCB supporters saw Hindu personal law as already being one step removed from its classical, religious textual roots.

Despite the critical role of religion in the arguments of both supporters and opponents of the HCB, the Hinduism at issue was increasingly unmoored from its roots in Dharmastra – as concern for classical Hindu law receded, discourses of gender, religion, and nationalism took center stage. The conservative conception of Hindu religion was not tied to classical or textual law, but was based on social and family structures and economic concerns. The Hindu socioreligious traditions they sought to preserve turned critically on the differential roles of women and men within the context of traditional Hindu society. Opponents began with the premise that men and women were different, and had different roles to play in society. Because men and women had different responsibilities in society, they had different rights. Based on this view, granting women greater (or even just different) legal and social rights would upset the entire balance of Hindu society.⁹ Opponents held that the women demanding equality and greater legal rights represented a minority, only one small class of Hindu women: overeducated, Westernized, and unrepresentative of Indian women at large. If such women insisted on demanding equality, the very foundations of the Hindu social and religious order would be shaken.

Opponents’ concerns were also economic, as their detractors were quick to point out. A prime example was their objections to granting a share of inheritance in intestate succession to daughters. Opponents feared that this provision, if passed, would accelerate land fragmentation in the countryside and generally “upset the whole economy of the country.”¹⁰ Yet they rarely expressed their objections in these terms. Discursively, their opposition was expressed in terms of the expected effect on Hindu socioreligious tradition, the Hindu joint family, and the stability and harmony of family relations. HCB supporters charged that opponents were not genuinely concerned with religion, society, or tradition, but with property.¹¹ They held that the main opposition to reforms came from those who simply wanted to protect their existing position of privilege in society. As Dr. Seeta Parmanand put it, the “opposition to this Bill comes” not from the truly or genuinely religious, but “from those who wish to mislead the Indian masses in the name of religion.”¹²

Proponents supported the HCB as a way of enhancing Hindu women’s legal rights and social status. Women were the most likely of all supporters to construct their arguments in these terms. But ultimately supporters believed that raising the status of women was critical not for its own sake, but because national progress depended on it. They reiterated the maxim (originally attributed to James Mill) that “the state of a civilization is judged by the status of the women in it.”¹³ Most supporters emphasized that the correct basis on which to judge the bills was whether they would benefit society as a whole, not just women in particular.¹⁴

Nivedita Menon has argued convincingly that, in this period, the struggle for gender equity in India “was never consciously articulated as distinct from the mainstream discourse of national integration. The two aims of gender justice and national integration seemed to be part of the same project” (2000: 82–3). Thus the relationship between nation building, modernization, and women’s rights was one of virtual identity for these groups. I would argue that this assumed identity did not fully break until the 1974 publication of Towards Equality, the path-breaking report prepared by the Commission on the Status of Women, appointed by Prime Minister Indira Gandhi in preparation for the United Nations Decade for Women (1975–85). The report concluded that, in many ways, women’s status in India had actually worsened after Independence – implying that, in some ways, Indian women might have been better off under British colonial rule! This finding was entirely unexpected, more than shocking, and provided the impetus for the growth of the modern Indian women’s movement (Kumar 1999).

It also revealed the critical disjuncture between nationalist and feminist goals and agendas. In the HCB debates, some other, “larger” purposes were sought in the reform and modernization of Hindu personal law – progress, unification, and the revitalization of Indian (or at least Hindu) society. HCB supporters saw the emancipation of women as necessary in order for national unity and social progress to be achieved – not the reverse. This made national unity and social progress the end, and giving women more legal rights became a means to that end. So reforms meant at one level to benefit women became a site for the construction of Indian national unity and identity (Williams 2005). In this way, women came to represent modernization and progress (for HCB supporters) as much as they represented tradition and custom (for HCB opponents). So gender became central to both supporters and opponents’ arguments while the classical, textual roots of religious law diminished in significance. The way the interaction between discourses of gender, religion, and nation played out was, in turn, shaped by political factors and the role of the state.

The state and Hindu personal law

The state has been critical in shaping the evolution of Hindu law as personal law ever since Hastings’s declaration of 1772. Previous chapters in this volume, in addition to this chapter, posit clearly that Hindu personal law is par excellence a colonial legal system. This contradiction itself suggests the unique status of the postcolonial state as a form of the modern state. The Indian postcolonial state is clearly not a simple or mere continuation of its colonial predecessor. But it has not necessarily fully broken from its colonial legacies either. As a colonial Indian state became a postcolonial state, the impact of government and political leaders was central to shaping the outcomes of the debates and the final form of the HCB.

The HCB were indelibly marked by the institutions of modern government, including political leadership, institutions, and processes. Foremost among these were Nehru’s unwavering commitment to a secular Indian nationalism and a particular conception of democratic process. Nehru wanted the HCB passed, but he preferred the bills pass democratically – which meant, to him, by free voting. Thus, despite the overwhelming majority the Congress Party held in Parliament, he refused to issue a party whip, which would have required Congress MPs to be present and to vote for the legislation. Practically, this meant major concessions had to be made to a strong and vocal opposition – much of which, as we have seen, resided within his own party. These concessions accumulated over the life of the HCB, and included both procedural and substantive concessions.

The government did place importance on enhancing legal rights for Hindu women: The HCB gave women greater rights, at least on paper, than they had previously possessed. But ultimately Nehru and his Congress government, like other supporters, believed that women’s rights had to be enhanced in order to advance the progress of the nation as a whole. Nehru believed, like other supporters, that a civilization could be judged by the condition of women: “I have long been convinced that a nation’s progress is intimately connected with the status of its women” (Nehru 1990: 384, May 10, 1956). Thus the procedural and substantive concessions that Nehru and the Congress Party government made to the bills were overwhelmingly those that compromised women’s rights, watering down the actual content of the reforms and curtailing legal and social rights Hindu women might otherwise have won. These included the following changes:

(1) The original HCB abolished the Mitkar joint family system and replaced it with the Daybhga joint family system (which was widely seen as more progressive) for all Hindus (Kishwar and Vanita 1990). Progressives even argued that the joint family system should have been abolished altogether. The final version reestablished the Mitkar system.

(2) The original HCB provided for separation or dissolution of a Hindu marriage. The final version included a restriction allowing divorce only after three years of marriage.

(3) The original HCB abolished custom altogether; the final version included the reestablishment of customary law.

(4) The rights of women to adopt children were severely restricted, as was the option of adopting girls rather than boys.

(5) The original HCB had given daughters a full share equal to the share of sons in intestate succession. This was already a very limited property right, since by definition it excluded agricultural land and joint family property, and included only self-acquired property and, of course, property that had not been otherwise willed away. The final version of the bill reduced this to half a share. In addition, an amendment was added that allowed sons to buy out a daughter’s share of inheritance with her “consent.”

When all was said and done, the vast majority of those who supported the HCB felt its substantive reforms were actually quite limited.¹⁵ Women MPs in particular expressed their sense that the HCB in its final form did not equal even the most progressive of local Hindu customary practices.¹⁶ Government leaders acknowledged that reformers and progressives were dissatisfied with the limited extent of the reforms. And subsequent studies have shown that the HCB had, and has had, minimal impact on most women’s lives (Agarwal 1994; Basu 2001; Luschinsky 1963).

But where concerns of gender equity were compromised, those of nation-building were not. This can be seen most clearly in the HCB’s definition of whom it would apply to – that is, who counted as a Hindu. By defining a Hindu as anyone who was not a Muslim, Parsi, Christian, or Jew, the HCB sought to erase distinctions of caste, sect, and region within Hinduism, and even reached to include other religious traditions. The HCB elided religious distinctions among Hindus, refusing – or at least failing – to acknowledge the vast regional divergence of customs or divisions of caste and jti among and between Hindus. It did not even define Sikhism, Jainism, or Buddhism as separate religious traditions. All three of these religions had originated as reform movements within Hinduism, but certainly by the 1940s were widely accepted as separate religious traditions by the Indian government itself. Indeed, the Census Bureau of India continued to collect data by the following religious categories: Hindu, Muslim, Christian, Sikh, Buddhist, Jain, and “Other” (defined to include “all other religions and persuasions”).¹⁷

But the nationalist conception of 1950s progressives served precisely to minimize or erase distinctions within the Hindu community and create Hindu social unity through legal uniformity – the actual reality of the multiplicity of ways of being Hindu notwithstanding (Agnes 1996). Thus, like most forms of group social identity, the HCB’s definition of “Hindu” worked to elide difference within the “community” (which it was itself defining), while simultaneously instantiating difference between Hindus and “other” communities – most notably and especially, Indian Muslims. This is not to say that the HCB were successful in erasing distinctions within the Hindu community; even a cursory overview of modern Indian politics would belie such an inference.

Rather, the institutionalization of a modernizing, nationalist vision of Hindu personal law has served over time (and in conjunction with the state’s approach to Muslim personal law) to entrench a conception of Hindu personal law as progressive and “reformed” – standing in purported contrast to Muslim personal law and (whether intentionally or not) providing grist for Hindu nationalist communal politics in subsequent decades. But this nationalist reformism came at the expense of genuinely substantive improvements in Hindu women’s legal rights. The myth was thereby perpetuated that significant reform of Hindu personal law had been accomplished, when in fact by many standards (and certainly by standards of women’s rights and gender equity), the HCB fell far short of achieving large-scale change – even if meaningful implementation had been possible or practiced.

The system of Hindu personal law throws into relief the complexity inhering in the tripartite relations between religion, law, and state. Throughout this volume, contributors explore the extent to which, and with what consequences, law and Hinduism have been constitutive of each other over the course of Indian history. Since Hastings’s 1772 declaration, religion has come to be represented in law, while religious law has come to represent religion and religious community identity. As religion and law came to be mutually constitutive of each other from the colonial to the postcolonial era, religion as law became progressively engaged with the state at the same time that law became progressively disengaged from religion.

The eminent sociologist Max Weber identified, nearly a century ago, the mutually constitutive, perhaps even tautological, relation between law and the state. The modern state is the sole enforcer of law(s); at the same time, law serves as the basis of legitimacy of state authority. Weber identified law – rule of, and by, law – as the defining characteristic of modern state power. It was what set the modern state apart, indeed marked it as modern, from the despotic and otherwise personalistic rule of its predecessors (Cotterrell 1983). Legal scholars have extensively addressed the extent to which – and with what implications – law can, should, or must be viewed as uniquely connected to and enforceable by the state (Tamanaha 2001).

Unlike most systems of personal law established in Britain’s later colonies (primarily in Africa), which had dual court systems to implement dual legal systems, India’s court system remains singular, and secular. That is, one court system has adjudicated the religious personal laws as well as civil and criminal laws. Indeed, the passage of the HCB, along with subsequent developments in both Hindu and Muslim personal law, has firmly established the institutions of the state – particularly Parliament and the courts – as the only valid arena in which changes or modifications to personal law can and must be made. Far from a secularism that raises illusory “walls” between religion and state, then, religious personal laws deeply and directly implicate religion in the state, and the state in religion – or, at least, in the incarnation of religion that personal laws represent.

Weber argued that religious law(s) could not provide the basis for legitimacy of a modern state, because such a situation might split the loyalties of the people – between their loyalty to the state, and to the religion that was the source of the laws. He also saw the presence of religion in politics as increasing the possibility that greater coercion would have to be used by state elites (Weber 1946a).¹⁸ It is certainly the case that religious personal laws have been an ongoing dilemma for the Indian state, for political parties, and for political leaders from Independence on. This has been true even as Hindu law has become disengaged from its roots in Dharmastra. Indeed, a central premise of this chapter has been that the exigencies, institutions, and modalities of modern state power have themselves played a significant role in that very process of disengagement.

Conclusion

This chapter has identified two critical shifts that marked the transformation of Hindu law as personal law in India’s early postcolonial years. In one critical shift, gender emerged as the key site on which Hindu law as personal law came to be constructed. While discourses of gender equity and women’s rights became a central part of the debates over reforming and codifying Hindu personal law in this period (in a way they had only begun to be central under British colonial rule), this is not to argue that the debates or legislation were aimed solely or even primarily at securing gender justice. Rather, discourses of religious and national identity shaped the central concerns of the opponents and the proponents, respectively, of the bills. Examining their arguments showed that while religion was central to the debates, concern for a return to the classical or Dharmastric roots of Hinduism or Hindu law receded, replaced instead by modern conceptions of both religious and national identity constructed in gendered terms.

The second critical shift was to the (modern, postcolonial) state as the key institution through which Hindu law as personal law had perforce to be negotiated. The state became the venue for the personal laws to be debated, modified, or otherwise considered in any meaningful capacity. The influence of the state was apparent in very specific ways in the development and outcomes of the HCB. Nehru and the Congress Party government, strong proponents of the HCB, prioritized nation-building concerns over those of gender equity.

Neither gender nor the state as critical sites of transformation was exclusive to postcolonial or post-Independence India. Both of these shifts were begun in the colonial era itself, as prior chapters have amply documented. Yet a fundamental shift in meaning came with the transition from colonial to independent rule that had broader implications for the tripartite relations between religion, law, and the state. The legacies of the HCB and the 1950s continue to manifest in the politics surrounding the personal laws in India in multiple ways, many of which will be examined in subsequent chapters in this volume. These include the rise to national political prominence of Hindu nationalism in the 1990s, a rise built to a significant extent on the further politicization of the personal laws through the 1980s, and the indictment of the Congress Party’s purported appeasement of minorities and “pseudo”-secularism.¹⁹ Gender continues to be the critical site on which constructions of the personal laws are built – indeed more recent debates have been framed almost exclusively in terms of women’s rights. And the implications of religion as identity, manifested in religious law, now reverberate globally, well beyond the subcontinent.²⁰ The roots of these developments can all be traced in an important sense to the evolution of Hindu law as personal law in the early years after Independence.

¹ Hindu Marriage and Divorce Act (1955); Hindu Succession Act (1956); Hindu Minority and Guardianship Act (1956); Hindu Adoptions and Maintenance Act (1956).

² See Sturman’s chapter in this volume.

³ See Donald Davis’s chapter in this volume.

⁴ On this, see the chapters by Rocher and Sturman in this volume.

⁵ See http://parliamentofindia.nic.in and http://rajyasabha.nic.in, accessed May 3, 2010.

⁶ Prasad hinted that, as president, he might consider the option of not approving the bills if they passed Parliament. Nehru’s response was that such an action on Prasad’s part would precipitate a constitutional crisis that India’s fledgling democracy probably could not withstand. Their correspondence on the issue can be found in R. Prasad (1984–95).

⁷ Jaswant Singh, Council of States Debates (hereafter CSD) (May 15, 1956), p. 2,207. See also: Devaprasad Ghosh, Lok Sabha Debates (hereafter LSD) (December 20, 1952), p. 2,666; Dr. Radha Kumud Mookerji, CSD (December 9, 1954), p. 1,346.

⁸ Dr. Jaisoorya, LSD (May 12, 1954), p. 7,223.

⁹ See B. K. Mukerjee, CSD (March 11, 1954), p. 2,539–40; H. C. Mathur, CSD (March 11, 1954), p. 2,865; Dr. R. K. Mookerji, CSD (March 23, 1955), p. 2,943; Jaswant Singh, CSD (November 27, 1956), p. 810; R. C. Gupta, CSD (March 23, 1955), p. 2,925.

¹⁰ B. B. Sharma, CSD (November 23, 1955), p. 378.

¹¹ S. N. Mazumdar, CSD (November 30, 1955), p. 1,028.

¹² Dr. Smt. Seeta Parmanand, CSD (March 11, 1954). English translation of Hindi speech. Appendix, vol. VII, Annex no. 140, p. 345. Emphasis added.

¹³ Bhupesh Gupta, CSD (March 10, 1954), p. 2,314–15.

¹⁴ H. V. Pataskar (minister of law), CSD (March 22, 1955), p. 2,732; Seeta Parmanand, CSD (December 7, 1954), p. 1,085.

¹⁵ See Krishnamurthy Rao, CSD (March 24, 1955), p. 3,035; Seeta Parmanand, CSD (December 20, 1952), p. 2,685.

¹⁶ Seeta Parmanand, CSD (November 28 and 29, 1956); Smt. Pushpalata Das, CSD (March 23, 1955); Smt. Bedavati Buragohain, CSD (March 24, 1955); Smt. Lakshmi Menon, CSD (March 23, 1955).

¹⁷ Census of India 1991, Part VB(ii)–Religion. Table C-9, www.censusindia.net/, accessed May 3, 2010.

¹⁸ I am grateful to Jayanth K. Krishnan for bringing this point to my attention.

¹⁹ See Narula’s chapter in this volume.

²⁰ See Krishnan’s chapter in this volume.