By Qurban Ali
In December 1946, the Constituent Assembly convened to devise a Constitution for free India. There were extensive debates over the place of personal laws in the new Indian legal system.
Some argued that India’s various personal laws were too divisive and that a uniform civil code should be instituted in their place. And once the notion of a uniform civil code was put forward, it soon became accepted as an important part of the effort to construct an Indian national identity, over the separate identities of caste, religion and ethnicity. Some resistance to the code was on the grounds that its imposition would destroy the cultural identity of minorities, the protection of which is crucial to democracy. Certain feminists thus argue that the uniform civil code debate balances on the polarity of the state and community, rendering the gender-based axis upon which it turns, invisible.
A compromise was reached in the inclusion in the first draft of an article that compelled the state “to endeavour to secure for the citizens a uniform civil code throughout the territory of India.” The clause, a goal, not a right, became Article 44 in the Constitution. It was widely criticised by proponents of a uniform code because it contained no mechanism and provided no timetable for enforcement.
However, Prime Minister Jawaharlal Nehru and others insisted on its inclusion, arguing that even if it was only symbolic, it was an important step towards national unity. Though Nehru himself likely would have favored a uniform code, he knew that personal laws were linked with religious identity in India and therefore could not be easily abolished. Recognizing that what he wanted was not a political reality, he settled for an unenforceable clause.
Then came the issue of The Hindu Personal Laws. For that ‘A Hindu Code bill was passed’. The Hindu code bills were several laws passed in the 1950s that aimed to codify and reform Hindu personal law in India. Following India’s independence in 1947, the government led by Prime Minister Jawaharlal Nehru completed this codification and reform, a process started by the British Raj. According to the British policy of noninterference, personal-law reform should have arisen from a demand from the Hindu community. That was not the case, as there was significant opposition from various conservative Hindu politicians, organisations and devotees; they saw themselves unjustly singled out as the sole religious community whose laws were to be reformed.
However, the Nehru administration saw such codification as necessary to unify the Hindu community, which ideally would be a first step towards unifying the nation. They succeeded in passing four Hindu code bills in 1955–56: the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act. They continue to be controversial to the present day among women’s, religious, and nationalist groups. Then there is a provision of joint family or undivided Hindu family in the law and Hindus are getting benefits of it in case of Income Tax, property, inheritance etc,. So it is just not related to Muslims only!
(Author is a Delhi based senior journalist, currently associated with Rajya Sabha TV. This article is reproduced from his facebook post.)
