India After Gandhi (41 page)

One modern technology the Gandhians had deep reservations about were large dams. They thought them costly and destructive of nature. But, as Indians were soon finding out, dams were destructive of human community as well. By the early 1950s reports began appearing of the sufferings of those displaced by dams. In the summer of 1952, when the Hirakud authorities issued eviction notices to the residents of the 150 villages the project would submerge, they met with stiff resistance. A reporter on the spot concluded that ‘the prosperity of Hirakud will be built on the sacrifice of such people who are now being destituted [
sic
] by the Government of Orissa without compensation and rehabilitation’. Three years later, a similar tale surfaced of villagers in Himachal Pradesh, who had to make way for the reservoir of the Bhakra dam. A full year had passed since Nehru had inaugurated the power house; yet ‘complacency and indifference seem to be guiding the counsels of the Bhakra Control Board, particularly the Rehabilitation Committee’. Even ‘the basic question of compensation, and the where, why and how of it remains to be decided to the satisfaction of the people concerned’.
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The free-market critique; the human capital critique; the ecological critique – these make for fascinating reading today. But at the time these notes of dissent were scattered, and they were politically weak. There was then an overwhelming consensus in favour of a heavy industry-oriented, state-supported model of development. This was a consensus among intellectuals; no fewer than twenty-three of the twenty-four expert economists asked to comment on the Mahalanobis plan agreed with it in principle.
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This consensus was shared by large sections of the ruling class as well. In their Bombay Plan the leading industrialists had asked for an ‘enlargement of the positive functions of the State’. They approvingly quoted the Cambridge economist A. C. Pigou’s view that freedom and
planning were entirely compatible. Indeed, these big businessmen went so far as to state that ‘the distinction between capitalism and socialism has lost much of its significance from a practical standpoint. In many respects there is now a large ground common to both and the gulf between the two is being steadily narrowed further as each shows signs of modifying itself in the direction of the other. In our view, no economic organization can function effectively or possess lasting qualities unless it accepts as its basis a judicious combination of the principles associated with each school of thought’.
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For a final word on the romance and enchantment of Indian planning, we turn to an anonymous journalist covering one of its showpiece projects. This was Bokaro, site both of a thermal power project and a large reservoir. Visiting the place in September 1949, the reporter found that ‘Bokaro stood in the midst of barren, rocky land, overlooking the confluence of two sandy rivers. The only habitation there was the office of the Executive Engineer manned by half-a-dozen persons, without any living or other facilities. One could reach Bokaro only by jeep and we had to carry our own food.’

Three and a half years later the journalist went back to Bokaro to see the prime minister inaugurate the power plant and the dam. ‘What a different sight met my eyes’, he exulted. Approaching the Bokaro valley on a ‘first-class tarmac road’, he saw ‘the three sturdy stacks of the PowerStation against the grey background of the hills’. What had been ‘a dry river bed in 1949 has been turned into a fair-sized lake’ with a concrete barrage thrown across it. For those who worked in dam and plant, there was now ‘a modern residential area with tarred roads, electric lighting, a high school, hospital, filtered water supply and all the amenities one expects in the present day’.
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‘Whenever I see these great engineering works’, wrote Jawaharlal Nehru, ‘I feel excited and exhilarated. They are visible symbols of building up the new India and of providing life and sustenance to our people’.
⁶⁴
It appears the excitement and exhilaration were felt by plenty of other Indians as well.

Some of these progressive movements have a great fascination for Nehru. He always likes to be looked upon as a modern; he wants to be a Picasso hung up in the Royal Academy, looking upon the classical forms around him with a supercilious air.

D. F. K
ARAKA
, journalist, 1953

It is a settled fact that every country and every nation has its own character. It is inborn and instinct with it. It cannot be changed. Shakespeare and Kalidas are both great poets and dramatists . . . India . . . could not produce a Shakespeare [nor] similarly England a Kalidas. I ask the sponsors of the reform, with all force and self-confidence, where is the necessity of
Europeanisation of Hindu
Law?’ . . . In codifying it there is danger of hurting seriously the susceptibilities and devotional feelings of millions of people.

Hindu lawyer, 1954

T
HE
F
RENCH WRITER
André Malraux once asked Jawaharlal Nehru what had been his ‘greatest difficulty since Independence’. Nehru replied: ‘Creating a just state by just means’. Then he added, ‘Perhaps, too, creating a secular state in a religious country’.
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Secularism was, indeed, an idea that underlay the very foundations of free India. The Indian national movement refused to define itself in religious terms. Gandhi insisted that the multiple faiths of India can and must co-exist peaceably in a free nation. This was a belief shared by Gandhi’s most prominent follower, Nehru, and by his acknowledged mentor, Gopal Krishna Gokhale.

Congress nationalism suffered a body blow at Independence. Freedom came not, as Gandhi and his colleagues had hoped, to one nation, but to two. Secularism now faced afresh set of challenges. One pertained to the domain of personal laws. In colonial times, the whole of India had come under a common penal code, drafted in the 1830s by the historian Thomas Babington Macaulay. But there was no attempt to replace the personal laws of various sects and religions with a common civil code. Here, as the British saw it, the colonial state’s role was restricted to adjudicating between different interpretations of religious law.

After Independence, among those favouring a common civil code were the prime minister, Jawaharlal Nehru, and the law minister, Dr B. R. Ambedkar. Both were of a modernist cast of mind, and both were trained in the Western legal tradition. For both, the reform of personal laws became an acid test of India’s commitment to secularism and modernization.

Article 44 of the Constitution of India reads: ‘The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.’

When this article was discussed in the Constituent Assembly, it provoked much agitation, particularly among Muslim members. During the two centuries of their rule, the British interfered little with personal laws; why could not the successor state follow their example? One member pointed out that ‘as far as the Mussalmans are concerned, their laws of accession, inheritance, marriage and divorce are
completely dependent
upon their religion’. A second felt that ‘the power that has been given to the state to make the civil code uniform is in advance of the time’. A third believed that the clause contravened another clause in the constitution: the freedom to propagate and practise one’s religion.
²

These arguments were forcefully refuted by B. R. Ambedkar. As he saw it, ‘if personal laws are to be saved, . . . in social matters we will come to a standstill’. In traditional societies, religion presumed to hold a ‘vast, expansive jurisdiction so as to cover the whole of life’. But in a modern democracy this licence had to be curtailed, if only ‘in order to reform our social system, which is so full of inequities, so full of
inequalities, discriminations and other things, which conflict with our fundamental rights’. To assuage the misgivings, Ambedkar said that the state might choose to apply a uniform civil code by consent, that is, only to those who chose voluntarily to submit to it.
³

As it happened, during the last years of their rule the British had belatedly initiated the framing of a uniform code for Hindus. This sought to reconcile the prescriptions of the two principal schools of law – the Mitakshara and the Dayabhaga – and their numerous local variations. A committee had been setup in 1941 chaired by Sir B. N. Rau, who was also to play a crucial role in drafting the Indian Constitution. The committee toured India, soliciting a wide spectrum of Hindu opinion on the changes they proposed. Their progress was interrupted by the war, but by 1946 they had prepared a draft of a personal law code to be applied to all Hindus.
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That the Hindus were singled out was in part because they were the largest community, and in part because there was a vigorous reform movement among them. Mahatma Gandhi, in particular, had challenged the discriminations of caste and gender, by seeking the abolition of untouchability and bringing women into public life. Although there remained an influential orthodox section, modernist Hindus had campaigned strongly for laws that would make caste irrelevant and enhance the rights of women.

In 1948 the Constituent Assembly formed a Select Committee to review the draft of a new Hindu code. It was chaired by B. R. Ambedkar, the law minister. The code drafted by the Rau Committee was revised by Ambedkar himself, and then subjected to several close readings of the Select Committee.

Despite its name, the ‘Hindu’ Code Bill was to apply to Sikhs, Buddhists and Jains as well as all Hindu castes and sects. Introducing the new bill, Ambedkar told the Assembly that its aim was to ‘codify the rules of Hindu Law which are scattered in innumerable decisions of the High Courts and of the Privy Council, [and] which form a bewildering motley to the common man and give rise to constant litigation’. The codification had a dual purpose: first, to elevate the rights and status of Hindu women; second, to do away with the disparities and divisions of caste. Among the notable features of the proposed legislation were:

1. The awarding, to the widow and daughter, of
the same share as the son
(s) in the property of a man dying intestate (which in the
past had passed only to his male heirs). Likewise, a Hindu woman’s estate, previously limited, was now made absolute, to be disposed of as she wished.

2. The granting of maintenance to the wife who chose to live separately from the husband if he had a ‘loathsome disease’, was cruel to her, took a concubine, etc.

3. Abolition of the rules of caste and sub-caste in sanctifying a marriage. All marriages between Hindus would have the same sacramental as well as legal status, regardless of the castes to which the spouses belonged. An inter-caste marriage could now be solemnized in accordance with the customs and rites of
either
party.

4. Allowing either partner to file for and obtain divorce on certain grounds, such as cruelty, infidelity, incurable disease, etc.

5. Making monogamy mandatory.

6. Allowing for the adoption of children belonging to a different caste.

These changes went very far in the direction of gender equity. Later, much later, feminist scholars were to argue that they did not go far enough, that they exempted agricultural properties from their provisions, for example, or that the advantages conferred on female heirs by the new laws were greater in the case of self-acquired property as compared to property that was inherited.
⁵
But from the viewpoint of Hindu orthodoxy the changes had already gone far enough. They constituted radical departures from the main body of Hindu law, where the son had a much larger claim on his father’s property as compared to the wife and daughter, where marriage was considered a sacrament and hence indissoluble, where the man was allowed to take more than one wife, and where marriage was governed strictly by the rules of caste.

In defending these changes, Ambedkar was at times rather defensive. Thus he argued that the Shastras, the Hindu holy texts, did not give the husband ‘an unfettered, unqualified right to polygamy’. The ‘right to marry a second time has been considerably limited by the [ancient law maker] Kautilya’. Again, the customary law of the various low castes, or
shudras
, had always allowed divorce. As for the woman’s right to property, some schools allowed her a quarter share in her father’s property; all Ambedkar had done was to ‘raise [the daughter] up in the share of heirs’, by making her share full and equal to that of the son.
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Ambedkar was here putting the best possible, or most liberal, spin on Hindu texts and traditions. But alternative interpretations were possible, and certainly more plausible. Not surprisingly, Ambedkar’s proposals provoked ‘loud denunciations’ from the orthodox, who viewed them as ‘a complete abrogation of the Hindu customs and traditions’, an unacceptable interference with the rules of caste and the traditional relations between the sexes.
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A doughty opponent of the bill was the Constituent Assembly’s own president, Rajendra Prasad. In June 1948, shortly after the Select Committee had been set up, Prasad warned the prime minister that to introduce ‘basic changes’ in personal law was to impose the ‘progressive ideas’ of a ‘microscopic minority’ on the Hindu community as a whole. Nehru answered that the Cabinet had declared itself in favour of the bill, that ‘personally, I am entirely in favour of the general principles embodied in it’. To scrap the legislation now would be to give rise to the suspicion that the Congress was ‘a reactionary and a very conservative body’; nor would it go down well ‘in the mind of foreigners outside India’. Prasad shot back that the opinions of the ‘vast bulk of [the] Hindu public’ were more important than the views of foreigners.
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