Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (4 page)

Mobilization regarding Hindu law was based less on prior traditions of jurisprudence and more on new forms of dialogue between religious normativities, customs specific to region and caste, and post-Enlightenment ideas. Colonial bureaucrats considered the
shastras
(classical Hindu texts of the first millennium BCE and the first millennium CE) the bases of classical Hindu law, much as the Qur’an and the
hadith
(reputable narratives of the early Islamic community) were sources of classical Islamic law. However, the
shastras
had mainly provided moral guidelines and suggestions for dispute resolution by community institutions rather than rules to govern regulation by states and religious institutions, differing in this respect from Islamic law and Christian canon. Colonial Hindu personal law was based largely on certain important commentaries on these
shastras
from the end of the first millennium and the beginning of the second millennium CE, as well as precedents in the colonial courts, as reflected in the texts of Hindu law compiled by British Orientalists, colonial administrators, and lawyers and judges.
¹⁵

Hindu traditions were open to diverse forms of
achara
(normative practice).
¹⁶
This made it easier to credibly present customs specific to region and caste clusters as part of a pan-Indian Hindu tradition. Certain customary practices that predated colonial rule or emerged in the colonial period were the bases of demands regarding the content of Hindu law. Colonial Hindu law recognized some precolonial customs, while transforming them by giving them the fixity of precedent.
¹⁷
The central place of Hindus in predominant colonial and nationalist constructions of India also suggested links between particular group customs and Indian national culture. These factors made it easier for cultural mobilizers to attempt the consolidation of the Hindu community around the customs of certain groups, as the Hindu nationalists did around the customs of their core support groups, the upper and upper-middle castes of northern and western India. Community courts run by vil
lage and caste associations resolved disputes with reference to changing local norms. They presented their approaches as either based in Hindu traditions or meant to enable the progress of their communities in changing social contexts. However, Hindu religious elites and religious institutions did not attend to the maintenance of classical forms of religious education and reasoning as much their Muslim counterparts did.

Religious figures, caste and other community mobilizers, and modernist intellectuals conceived projects of Hindu reform and spirituality based on amalgamating precolonial Indian mentalities and post-Enlightenment Western outlooks in various ways. Such forms of reasoning were used to urge, variously, the homogenization of Hindu law as well as the maintenance of customary exceptions to these laws, and to both maintain hereditary inequalities in rights and status and to reduce some of these inequalities. They influenced changes in Hindu law, such as the extension to widows of lifetime shares (“limited estate”) in their deceased husbands’ property through the Hindu Widows Right to Property Act of 1937. These changes were more limited in scope than those introduced in Muslim law in the 1930s. Two Hindu Law Committees considered more extensive changes in Hindu law in the 1940s.
¹⁸

Muslim elites voiced demands to retain a distinct personal-law system most strongly, but this was also the preference of most mobilized members of the other religious groups. This included many Sikhs who wanted the customary law of Punjab, where the group was concentrated, to govern their family lives after independence as it had in the colonial period, as well as various Hindus who preferred different versions of colonial Hindu law. Some Muslim religious elites also wanted religious law to once again regulate commerce and crime, but did not press this claim, as they realized it was not feasible.

Ideas of administrative efficiency, legal rationality, public order, health and morality, individual liberty, the revitalization / reform of religious and other cultural traditions, and the protection or occasionally the empowerment of weaker groups also motivated bureaucrats and legal elites to consider changes in family law. The initiatives of cultural mobilizers, legal elites, and bureaucrats led to other family-law reforms in the colonial period; the most important of these set and then increased the minimum marriage age and
the age of consent, and enabled the remarriage of Hindu widows. Moreover, they set the stage for postcolonial debates regarding family law.
¹⁹

B. Indian Nationalism and Legal Reform

The Indian nationalists who became politically dominant after the First World War varied in their understanding of the nation, their inclination to recognize cultural difference, and the relative emphasis they placed on the revaluation of indigenous traditions and the transformation of these traditions to meet colonial standards of modernity; they engaged to different extents with particular social and religious currents. Despite these differences, the majority of them agreed about certain features of social reform. They aimed for culturally grounded reforms in social practice and personal law that would promote post-Enlightenment ideals such as social equality and individual liberty in certain ways, but did not propose to systematically vet personal law with reference to these ends. Virtually none of them wished to follow the Turkish example of rapid secularization of certain areas of public life, attacks on religious institutions and symbols, and the importation of Western institutions and legal systems in their entirety, although they shared a commitment to build a secular state with Turkish republican leaders.

Jawaharlal Nehru, who became the most influential modernist nationalist by the 1940s, favored the formation of a centralized state that would foster economic development along the lines followed by industrialized societies during the interwar period, the establishment of parliamentary democracy, the adoption of official multiculturalism and secularism, and the judicious promotion of social equality through measures such as land reform, the provision of preferential policies for the lower castes, the promotion of women’s education and employment, and the enhancement of lower-caste access to public spaces such as places of worship. He considered these the appropriate ways to revive the earlier national glory associated with kingdoms led by Hindus, Muslims, Buddhists, and Jains, and to promote interreligious cooperation. While valuing syncretic cultures, Nehru wished to recognize certain distinctive features of group culture. Modernists like him wished to change the personal laws, and initially Hindu law, to promote equality and liberty, but largely based on the relevant group’s legal and normative traditions as they saw them.
²⁰

The more conservative traditionalist Indian nationalists, such as Bal Gangadhar Tilak and Madan Mohan Malaviya, viewed the nation as an aggregate of distinct cultural groups with largely static cultural traditions. They resisted efforts to promote caste mobility and reform the personal laws to give women greater rights and extend individuals greater liberties, and were wary of syncretic practices. Such conservatives opposed an increase in the age of consent from ten to twelve in the 1890s, an increase in the minimum age of marriage for women from twelve to fifteen in the 1920s, and efforts to increase Hindu daughters’ inheritance rights and give both Hindu men and women divorce rights in the 1950s. Both their celebration of certain Hindu festivals as Indian nationalist rituals and their efforts to maintain social boundaries enabled them to build alliances with Hindu nationalists, who connected Indian national revival to Hindu political and cultural supremacy, valued the cultures of the upper and upper-middle Hindu castes of northern and western India, and wished to assimilate other groups into many of these groups’ practices.
²¹
This alliance led the opposition to Hindu law reform in the 1940s and 1950s. While the Hindu nationalists voiced a preference for a Uniform Civil Code (UCC) even then, they focused on preventing most proposed reforms in Hindu law or preventing the application of these reforms to their support groups.

Mohandas (“Mahatma”) Gandhi was the most influential among the less conservative traditionalists. He considered precolonial India a collection of static and autarkic villages, wished to revive such a nonindustrial nation, and imagined a national tradition in which castes were interdependent occupational groups of equal status and landlords used land to benefit the entire village. To promote this vision, he organized improvements in the social conditions of the lower castes, tried to reduce untouchability practices in some villages, and supported initiatives to end child marriage and to give the lower castes access to temples.
²²
Along with pluralist modernists like Nehru, he valued syncretism while wishing to recognize difference, and took the reform of Hindu society to be the main basis for making the Indian citizen. Moreover, most Indian nationalists, whether traditionalist or modernist, did not engage closely with mobilization among the religious minorities and were unfamiliar with the religious discourses in which these efforts were largely conceived, and so took the norms valued by the more influential minority leaders to represent the cultures of these groups.

The less conservative traditionalists and modernists were predominant in the leadership of the Indian National Congress (Congress Party) of the 1940s, and included the party’s two most popular leaders, Gandhi and Nehru. These informal factions thus had greater influence over early postcolonial policy, especially the initial proposals about personal law. However, conservative traditionalists and Hindu nationalists also accounted for a significant section of the political elite and the first two postcolonial parliaments, and so had a voice in policy making. As the movement to form Pakistan as a separate country for the Muslims of British India grew, certain major Congress Party leaders came to an agreement to continue the recognition of a distinct Muslim law with some Muslim religious elites that preferred to remain a part of India. Their focus on reforming Hindu society and their distance from non-Hindu cultural mobilization made them inclined to reform Hindu law, and to take minority accommodation to require the retention of the minority personal laws in their existing form. This was the case although various Muslim leaders had initiated more changes in Muslim law than had been made in Hindu law in the last colonial decades, and were open to further changes if the majority of Muslim political representatives favored them.

III. ORGANIZATION OF THE STUDY

Chapter 2
develops the major arguments of the study by comparing Indian experiences with trends in various other developing societies in which personal laws specific to religious groups, sects, or ethnic groups that were based partly on religious and other cultural norms were recognized in the early twentieth century. It argues that the discourses of community that influence policy makers and popular mobilization interact with certain aspects of the relations between state and society and that these two factors influence approaches to cultural accommodation and personal law. This argument is developed through a critical exploration of the literature on family law and legal change, state formation, nationalism and cultural politics, secularism and public religion, and multiculturalism, with reference to the aforementioned experiences.
Chapter 3
examines the formation of the Indian state’s approach to personal law in the first postcolonial decade, the reasons for the focus on changing Hindu law, and the specific changes introduced in Hindu law in
the 1950s. It highlights the introduction of rights to divorce—largely based on spousal fault and granted after a period of judicial separation, to indicate the forms of family life that state elites valued—and the compromise over inheritance rights, which indicated the intention to empower women while partly accommodating conservatives who wished to maintain patrilineal authority over property.
Chapter 4
explores the changes that judges and legislators made in Hindu law since the 1960s, especially the increase in divorce rights—based on mutual consent or spousal fault without an intervening phase of judicial separation—and the extension of greater rights to daughters over family property.
Chapter 5
discusses the experiences pertaining to the laws governing India’s two largest religious minorities, the Muslims and the Christians. It highlights the reasons why policy makers did not change these laws soon after independence although support for personal-law reform was comparable among Muslims and Hindus. Moreover, it investigates the changes in cultural and legal mobilization, litigation patterns, and policy makers’ knowledge and values that contributed to reforms in the minority laws since the 1970s—notably the extension of alimony rights and restriction of unilateral male repudiation among Muslims, and an increase in divorce rights and the equalization of divorce rights for men and women among Christians. This chapter also identifies certain ways in which policy elites’ majoritarian nationalist visions and limited knowledge of minority traditions and initiatives restricted the accommodation of culturally grounded demands for minority law reform. The Conclusion summarizes the major findings and indicates the likely directions of change in India’s personal laws over the next decade or two. It highlights certain lessons that may be drawn from the study about how multiculturalism and secularism may be revised in India and some other developing countries, and the forms of cultural discourse and political mobilization that would enable such policy changes.

CHAPTER 2

NATIONALISM, RECOGNITION, AND FAMILY FORMATION

I. STATES, KIN GROUPS, AND FAMILIES

Analogies between patriarchal authority within families and lineages and the authority of the sovereign over subjects were motifs of early modern Western political theory, deployed to reinforce the authority of both sovereign and patriarch.
¹
They reflected the presence of patriarchal authority and patrimonial states, as Weber characterized them, in various societies.
²
Lockean social-contract theory severed the link between patriarchal and state authority, locating the latter alone in the consent of the governed. It presaged the efforts of centralizing states to consolidate their power through the appropriation of the authority to regulate family and intimacy from lineages and religious elites, but not the specific ways in which crucial agents framed these projects and the extent to which they redistributed such authority. The modes of regulation of the family were recast over the past two centuries in various societies in ways that provided individuals different choices about how they practiced
intimacy and family life, and changed the relationship between patriarchal and state authority in different ways. Europe an states had patrimonial features well after they began to centralize their authority, and many of the states in developing societies retained neopatrimonial characteristics until now. Some of these states limited the authority and autonomy of prior social institutions, and thereby consolidated their authority and became more deeply embedded in society (for example, France and Turkey). Others accepted the continued authority of these institutions in various social arenas at a cost to their own power (for example, Lebanon and Morocco). And many others consolidated their authority partly by building alliances with such institutions with which they shared various regulatory functions (such as, Egypt, India, and Indonesia).
³