Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (18 page)

The above analyses do not take account of these reformist currents or explain the failure of policy makers to engage with them to change the minority laws. Moreover, minority accommodation was not connected to the choice to focus on changing Hindu law, rather than the optional civil laws. The more influential political elites adopted this emphasis because they did not wish to rapidly secularize family law and saw the reform of Hindu society as central to making the Indian citizen, even if they were cultural pluralists.

Opinions differ about the relationship between the vision of the Constitution and the decision not to change minority law. The unequal rights that all the personal-law systems accorded the genders in various respects and the differential treatment that these systems gave similarly positioned members of different religious groups were contrary to some of the fundamental rights enumerated in the Constitution—especially those contained in Articles 14 (equality before the law and equal protection), 15 (nondiscrimination on grounds only of religion, race, caste, sex, or place of birth) and 21 (protection of life and personal liberty; construed by the Supreme Court to protect privacy and human dignity as well).
⁹
The failure to change the minority laws to promote the rights upheld by these articles thus seems contrary to Article 13, which declares void all laws in force prior to the adoption of the Constitution that are inconsistent with the fundamental rights. Archana Parashar made this argument most fully.
¹⁰
Article 25, which ensures freedom of religious practice, contains a qualification enabling social welfare and reform legislation with implications for religious practice. This was meant precisely to make possible reforms in religious practice, such as in access to places of worship and in the rights granted by the personal laws. The defeat of the efforts of some Muslim members of the Constituent Assembly to protect the personal laws made it entirely clear that the Constitution did not bar personal law reform.

However, this does not clarify the implications of the Constitution, if any, for the pace of personal-law reform. There was some unclarity about which laws should be vetted for consistency with the fundamental rights, pursuant to Article 13. The Constituent Assembly also served as the national parliament, called the Constituent Assembly (Legislative), from the adoption of the Constitution in 1950 until the first postcolonial national elections were called in 1952. This body chose to retain various features of Hindu law con
trary to Articles 14, 15, and 21, introduced other such laws (such as the “conjugal right” to the company of a spouse who prefers to live on her own; although the colonial courts had recognized this right from the late nineteenth century and the colonial state had it made a part of statutory Christian law, it was only incorporated in statutory Hindu law by the postcolonial state), did not accept certain changes proposed in Hindu law despite the modest scale of the proposals, and did not consider changes in the minority laws.
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This suggested that it did not have the personal laws in mind when it formulated Article 13, although the various personal laws were in operation when it adopted the Constitution. This was the Bombay High Court’s interpretation of Article 13 when it rejected a challenge to the recognition of different rights for individuals based on their religious identities in
Narasu Appa Mali v. State of Bombay
(1952), setting the precedent for the succeeding decades.
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Even if the Constituent Assembly did not wish to immediately void personal laws considered contrary to certain fundamental rights, Article 13 might be taken to require the future interpretation and revision of the personal laws in light of the fundamental rights. We will see later in this chapter and in
Chapters 4
and
5
that neither the Hindu law legislation of the 1950s nor the personal-law reforms introduced thereafter were systematically driven by constitutional rights. Although policy makers claimed justification for some of the changes introduced in personal law partly in constitutional rights, they changed the minority laws only if they also found grounds for reform in the traditions, initiatives, and practices of group members; they approached Hindu law similarly in most instances.

It could be argued that the classification of individuals according to gender and religious identity in the personal laws was reasonable inasmuch as it was based on differences in gendered socialization, social roles, and resource allocation and in attitudes to social reform among the religious groups, rather than only on religion and sex (the forms of discrimination that Article 15 forbade). Policy makers offered this argument in their defense of the reform of Hindu law alone, and of the retention of various gender-differentiated rights.
¹³
Furthermore, they repeatedly claimed in parliament that their Hindu law reform proposals promoted constitutional rights, especially those to equality before the law and equal protection.
¹⁴
This led some scholars to accept policy makers’ claims that early postcolonial personal-law policy was aligned
with the Constitution. Jacobsohn did so most elaborately, adding that the ameliorative nature of Indian secularism balanced the commitments to social reform and to maintenance of the integrity of religious life by placing many of the articles calling for egalitarian reform, including the call for a UCC, in the nonjusticiable Directive Principles of State Policy.
¹⁵
This left the pace of egalitarian reform to the judgment of political representatives. While the postponement of the introduction of a UCC was an appropriate exercise of the space the Constitution gave legislators to judge the pace of social reform, the same cannot be said of the postponement of minority-law reform due to the vigor of minority reformist initiative.

ii. Nature of Changes in Hindu Law. Scholars also understand the extent of the changes introduced in Hindu law and the reasons for the specific nature of these changes in varied ways. Werner Menski characterized these changes, whether initiated by the legislature or the judiciary, as modernist until the 1970s.
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By that, he referred to the adoption of Western precedents, at times to liberalize matrimonial law and at other times to intensify state regulation of family life, with inadequate attention to indigenous norms and the socioeconomic dimensions of conjugal relations in India. Menski claimed that judges became sensitive to the resulting disjunction of statutory personal law from litigants’ dispositions and concerns after the passage of a generation, and adjusted adjudication in a postmodern fashion to the social context of marital disputes starting in the 1980s. This understanding is inaccurate in various ways. First, the personal-law reforms were less extensive than Menski suggests when the Indian experience, particularly before the 1970s, is viewed in the comparative perspective adopted in
Chapters 1
and
2
. Second, the state did not assume a monopoly over the regulation of family life; rather, it chose to accept the continued intervention of community courts in matrimonial disputes, although without making a commitment that state courts would either validate the decisions of the community courts or direct the bureaucracy and the police to implement these decisions. Third, Menski’s characterization of personal-law policy through the first three postcolonial decades is in tension with his own observation that elements of classical Hindu moral discourse and classical and customary Hindu law retained a presence in the legal system, including in Hindu law. Fourth, various visions of Hindu and
Indian culture inspired the early Hindu law initiatives, both those of reformers and conservatives—visions drawn from colonial Hindu law, precolonial texts and traditions, and emergent visions of reformed Hinduism and a distinctively Indian modernity. They influenced the particular personal laws adopted in India, and this was a reason why elements of classical and customary Hindu law were retained, though not as extensively as Menski claims. Fifth, although certain matrimonial laws adopted in the 1950s bore some resemblance to laws operating in various Western countries at the time or a little earlier, the particular forms these laws took in India cannot be understood with reference to Western precedents, such as the conditions under which divorce was made available. Moreover, other statutes adopted then bore no resemblance to Western precedents. For instance, this was the case with the incorporation of joint property ownership by male kin in the Hindu Succession Act (HSA). Such legislation resulted from compromises between alternative interpretations of indigenous norms. Sixth, the terms of the compromise were determined by the concern of political elites to retain broad social coalitions, and the inclination of the modernists to signal the practices they valued—but not to press citizens to adopt them soon, since such pressure seemed likely to be widely unpopular. Seventh, subsequent adjudication was sensitive to various features of the social context beginning in the 1960s, as we will see in
Chapter 4
.

Parashar, Lotika Sarkar, Reba Som, Flavia Agnes, Eleanor Newbigin, and Rochona Majumdar pointed out that the changes were far more limited than what many expected based on the achievement of independence and the nature of the Constitution.
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Agnes inaccurately claimed that the Hindu-law reforms reduced women’s rights in all respects, and Som that the changes were largely symbolic, although these reforms provided most Hindu women with various new rights. For instance, they enabled most Hindu women to inherit a share equal to that of their brothers in their parents’ separate property, though not in the property the parents owned jointly with kin, in intestate cases (the potential benefit was especially great for women from patrilineal groups, which account for the majority of Hindus); to get divorces, though only two years after judicial separation in most cases (not available to most upper- and upper- middle-caste Hindus until then); to prevent their husbands from practicing polygyny; to live separately while getting material support
from their polygamous husbands; to will the property they inherited from their deceased husbands, provided they did not remarry and were deemed to have remained “chaste”; and to marry some extended kin. Crucially, most of them gained the right to inherit their parents’ property for the first time; previously, they had been able to inherit property only in the absence of four generations of agnatic male kin, and that too only as “limited estate” (that is, the right to enjoy but not bequeath property) under
Mitakshara
law, or to inherit only moveable goods (usually dower) as absolute estate (including the right to bequeath) under
Dayabagha
law.
¹⁸

Sarkar traced the limited nature of personal-law reform to the constitutional guarantee of free religious practice in Article 25, although Clause 2(b) of this article enabled the state to intervene in religious practice to effect social reform. Agnes attributed it to the fact that policy makers attached higher priority to the consolidation of Hindu law and to nation building than to the promotion of gender equality.
¹⁹
While policy makers’ priorities were indeed as Agnes claimed, this does not explain the limits within which Hindu law reform empowered women, because different norms could have been promoted in the course of Hindu-law consolidation and Indian nation building. Newbigin claimed that the main agents of reform, professional and commercial elites, wished to transfer the authority that colonial Hindu law (especially
Mitakshara
law) gave to lineage leaders over jointly owned family property to individual men who would independently own property.
²⁰
She took these agents, even though they used a rhetoric of women’s empowerment, to value property rights for individuals only as a means to control their earnings more fully, face fewer constraints in investing their income, and become authors of a postcolonial patriarchy organized around the nuclear family under the husband’s tutelage. She and Sreenivas believed that the changes in economic structure and family forms through the late nineteenth and early twentieth centuries loaded the dice in favor of these new forms of patriarchy.
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While recognizing initiatives to partition family joint property, Majumdar noted the simultaneous salience of visions of the joint family as the primary family unit. She argued that public opinion and the majority of political elites did not favor either the retention of “traditional” patrlineages or the empowerment of the individual to autonomously forge conjugal links and control property. Rather, she described the emergence of
modernized forms of marriage, in which joint families arranged marital partnerships using new media and novel standards of desirable and compatible mates, and of preferences that the joint family should remain the main property-owning unit but use its property for the new purpose of promoting national economic development.

The arguments of Newbigin and Sreenivas would have been accurate had postcolonial rulers given individual men absolute property rights, confined their wives to coverture, and given their daughters only a right to maintenance from family resources. However, the modernist Indian nationalists who framed the initial Hindu law reform proposals wished to extend the right to claim shares in family joint property to female kin, and to give daughters shares equal to those of sons in their parents’ separate intestate property. These were among the proposals that Ambedkar presented to the first postcolonial parliament, with the support of a minority of Congress Party legislators. The first proposal largely failed, since it enjoyed only limited support even among the modernists (for some of the reasons that Sreenivas and Newbigin identify), and faced considerable resistance among traditionalists who valued patrilineal authority. The strength of such resistance was greater than Sreenivas’s and Newbigin’s understanding of ongoing socioeconomic change would lead us to expect, especially considering that professional and commercial groups dominated the early postcolonial political elite and parliaments. It forced a compromise that left parents much space to convert the property they earned into family coparcenaries with solely male members to limit their daughters’ shares in such property, or to bequeath both their separate property and their shares of joint property to their sons alone. Majumdar and Madhu Kishwar more accurately recognized that while wishing to free investment of the constraints imposed by joint ownership, Indian commercial and industrial elites also wanted to limit the fragmentation of landholdings and business enterprises; these elites found the retention of joint property and the control of male kin over property the most reliable means to this end.
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Majumdar and Kishwar thus took steps toward a better understanding of the limits to Hindu succession law reform in the 1950s.