Abstract
Reading the book in 2013, it appears to us as if the dust has settled down on the tumultuous years when attempts were made to modernise Hindu community by reforming archaic laws and codifying them to some coherence. Colonial rule had kept away from any interventions in the culture of the society it had hegemony over. However, already in India, prominent educated men from the upper castes, who had contact with liberal values of the time, sought to alleviate the oppressive conditions under which Hindu women in India lived. Thus were enacted laws for the abolition of sati, restraint of child marriage and permission for widow remarriage.
As the author argues, the historical significance of Hindu law reform is not just a question of legal provisions or its implementation, but primarily as a witness to the process of the gradual awakening of gender consciousness among the elites. To this end, she has not merely documented the actual debates in legislature but has set these against the background of the women’s movement and stirring of social consciousness in social circles. She has ably demonstrated the interface between legal reform and social change by delving into the communicative process on the formative period when the three actors—the state, the legal pundits and the concerned public—conjoined to engage with the momentous changes that the bill sought to unleash.
She unravels this story over seven chapters. The introduction begins with a brief history of the early years—almost spanning three centuries—of women’s struggles for gender equality. Right from early nineteenth century, there had been vigorous debates on women’s issues, the battle lines drawn between traditionalists and modern visionaries. The Hindu Code Bill sought to extricate a hidebound society steeped in archaic customs, which were out of tune with progressive features of neeti and nyaya, or in other words, equality and equity that characterise a civilised society. The author sets the process of codification of Hindu laws against the configuration of political and economic forces of independent India. The newly independent nation was aiming to develop into a self-reliant and more egalitarian society, freed from shackles of political, economic and cultural backwardness. A major leavening feature that aided this protracted battle was India’s innate legacy of argumentation. The Bill, as Sinha very convincingly argues, envisaged several outcomes, and to see it as a mere legal initiative is to miss the intended consequences of this venture to leapfrog into a liberal polity by diminishing the influence of religion in the public sphere.
This process was protracted and the history of the grant of gradual powers to Indian legislatures led the way. The Montague Chelmsford Report of 1918 and the Government of India Act of 1919 granted limited legislative powers that enabled social legislation. Two events that were critical at this juncture were the burgeoning women’s movement and the national movement for independence. Thus, to Sinha, any proper understanding of the nature of the debate can only be appraised correctly if we give due credence to the emerging feminist consciousness in the country. She has sought to tip the balance in social history by correcting the neglect of women’s contribution in the enactment of the law in the many tomes that have been published on the issue. The engagement of many actors in the contents of the Bill and their perception of its impact on Hindu society is well documented by the author. What is impressive in her recital is that this documentation is meticulous and exhibits not only her skill in drawing upon many sources but also in the way she links the bill to many developments in the socio-political terrain at precisely that juncture.
Besides, not merely events but the names of innumerable actors and their contributions to the debate are recorded in great detail, true to the historian’s penchant for facts. However, one lacuna is her focus on mainstream India, and hence her remarks on the family in India being staunchly patriarchal and patrilineal fail to mention how the bill disregards the diversity of practices in the country, such as in tribal belts of India and matrilineal societies of the North-east and South-west.
Ancient texts such as the Rig Veda mentions monogamous marriage but she finds no reference therein to divorce or remarriage of widows. Marriage was a sacrament, not a social contract. Even A. L. Basham’s rhapsodical The Wonder that was India did note in passing that women in India had a subordinate position. Sinha, unfortunately, makes a tour de force here in her otherwise discriminatory approach to evidence, by accepting uncritically the conventional Brahmanical history of the ‘high position of women’ in ancient times where mothers were revered despite son preference.
Respect does not necessarily cohere with actual material position or authority. She attributes subordination of women to a hypothetical ‘deterioration’ in post-Vedic age but gives us no clue as to why this happened. She has, at many places, used sociological authorities like Emile Durkeim and Jergen Habermas, but is innocent of anthropology’s explanations for why women lost out in social power. For someone who has scoured through a lot of related literature, it is sad that she has missed Uma Charavarty’s path-breaking rebuttal of the myth of high position of women in ancient India where she has shown that the prominence of a few women like Maitreyi or Gargi obscures the reality of Vedic society’s underside—their reliance on slaves (dasis). The problem with recourse only to religious literature as history is that it gives a partial view of society. As we have little written records of earlier periods, and a unique oral tradition preserved for us what we now have, it is hazardous to have faith in these as repositories of truth because the guardians of the tradition did not include the lower sections of society. Let me hasten to add this is not to minimise the valuable scholarship Sinha has brought to bear on her subject. Her discussion of modern history is what we should really scrutinise—where she is on sure ground—and not nitpick on her stray references such as these.
I wish she had given us a little more detail on stridhan. Those untutored in legal history might not quite understand what stridhan stood for. It is bridal wealth consisting of moveable wealth like jewellery and household artefacts to which a bride had exclusive rights. The southern part of India had a more woman-friendly tradition than north India. This stridhan was passed on from mother to daughters. For example, my mother’s jewellery on her death was inherited by me and my sister, that is, by her daughters.
The objective of the Hindu Code Bill was to create a unified legislative framework that would provide justice to the Hindu community in an egalitarian fashion and give women the space to operate freely and contribute to the well-being of the nation. ‘By being inclusive and communicative in nature, the Hindu Code Bill debates of 1940’s and 1950’s contributed significantly in influencing the modern Indian mind....had lasting impact on the social psyche of modern India’( p. xxiii, Introduction).
Chapter 1 traces the history of Hindu women in law from ancient times and draws from ancient texts like Atharva Veda and Aiterya Brahmana to establish the point that though there was son preference, the mother had a ‘high position’. As Uma Chakravarty has pointed, recourse to religious literature alone does not give a clue to the real situation of the masses of women. Uma contends that there is very little proof of women’s property rights in post-Vedic period. Stridhan (bridal wealth) in the form of moveables like jewellery and household artefacts was the right of unmarried daughters only. Here again, Sinha does not note the difference between the north and south. Women did inherit land called ‘turmeric land’, which a daughter inherited from her mother and which was exclusively hers. In my own family, my grandmother, a Brahmin, inherited some orchards from which she used to get income which was her alone. Likewise, stridhan was exclusively the woman’s and could be passed on to her daughters. I and my sister inherited my mother’s jewellery and her silver and brass vessels. The problem, however, was that these rights were customary and were not part of written legal rights.
Tracing some of the changes ushered in during the nineteenth century by way of acts like Widow Remarriage Act of 1856, she rightly points out that even as castes were being homogenised into larger Hindu legal structure, British administration and Indian counterparts ensured the dominance of Brahmanic ideology as Brahmanic patriarchy was made the basis of norms for everyone else. In some ways, the first chapter is useful in giving us the antecedents of later events.
Chapter 2 takes us forward into the freedom struggle, the emergence of women’s organisations, the prominent leaders and their role in promoting women’s rights. The legislative measures to promote women’s rights began in the pre-independence period. Although there was no single body to legitimise a uniform code for diverse communities, the British assumed that personal laws had a religious source and hence involved pundits to look into ancient texts. In the nineteenth century, Warren Hastings initiated codification and thus laid the grounds for the struggle to improve women’s rights. The social reform movement among the upper castes at this juncture was also deeply concerned with improving Hindu women’s position in the family.
Chapter 3 takes us to the 1930s. In 1937, G. V. Deshmukh, a liberal member of the first Federal Legislative Assembly, introduced a bill, ‘Hindu Women’s Right to Property’, but the majority of social groups were not in favour. The 1937 law was a central law and provincial governments were supposed to follow suit. Two aspects of this law were: (a) it did not include agricultural land; and (b) it removed the disqualification of a widow on grounds of her being unchaste.
In 1940, a Hindu Law Committee was appointed to go into Hindu women’s right to property and specify the rights of widow, widowed daughter-in-law and daughter of the deceased whose property is inherited. The author makes a pertinent comment on these categories by demonstrating how the law committee was not really concerned with gender differences but more with different categories of women. The opportunity to create an enabling legislation for gender equity was lost and the Bombay Women’s Conference’s demand for a thorough revision of laws relating to marriage, divorce, guardianship and right to property went unheeded. Two draft bills—law of succession and law of marriage—were combined as the ‘Hindu Code Bill’ and the government utilised its block of votes to send this bill to Joint Select Committee. Their recommendations were widely circulated in all Indian languages. The important provisions were: distinction between civil marriage and sacramental marriage; removal of caste identity; removing prohibition for sagotra marriage; and delegitimising polygamy.
It is difficult for us to realise how far-reaching these changes were. Sinha has efficiently summarised with her understanding of what the bill achieved, namely, primarily bringing the widow, daughter and widow of a predeceased son on the same footing. As an endnote, she captures what the Hindu Code Bill proposed: (a) absolute right to women in all property (excluding land, let us remember); (b) sons also had half a share in stridhan; and (c) dowry given at the time of marriage will remain trust property till the bride reaches 18 years of age.
Sinha’s listing of the names of the members of the Joint Select Committee was most instructive. We see the number of women leaders who were part of the deliberations—women like Durgabai Deshmukh, Ammu Swaminathan and Renuka Ray. She has gleaned a lot of nuggets like these from The Legisaltive Debates, Vol. IV, April 1948, of the Constituent Assembly. Her painstaking research into archives merits our commendation. She has quoted Dr B. R. Ambedkar’s whole-hearted support in his speech before the committee. Hansa Mehta felt that daughter’s share of half was not gender equity, the sapinda definition needed reconsideration and age for valid marriage should be specified. This reviewer is tempted to linger over these details because they illustrate how contentious reforms can be and how difficult it is to obtain social consensus. After all the battles, she finds empirical reality grist for optimism. The achievements of India in demographic indicators such as reduction in female infant mortality and maternal mortality, raising the age of marriage, improving girls’ school environment, adult franchise, more women in the workforce and increasing presence of women in the governing bodies are all on the credit side and had created an institutional infrastructure for women’s empowerment. Yet, disparity between such advances and the social status of women are still stark.
In Chapter 4, ‘public gaze’ is a worthy addition to the Hindu Code Bill’s stormy passage. The Hindu Code Bill polarised the nation into for and against. While the happenings in the assembly are known, Sinha’s delving into newspapers, articles in journals and results of a survey of public opinion in the form of tables from different regions is an innovation. Noteworthy is that Bombay Presidency stood highest in terms of approval, while the Hindi belt was least supportive, and its rhetoric was full of sentimentality and the sanctity of Hindu custom. Have we not still to face the same from RSS, the progenitor of Hindu Mahasabha? Surprising to read is the opposition from Bengal! The opposition’s main thrust was that widows have been given too much.
Chapter 5 summarises the debates in the political sphere. Gandhi who wanted rights for women was not in favour of legislation to achieve this but put his faith in change of heart. Dr Muthulakshmi Reddy was one of the most vocal supporters who spoke scathingly of the ruling patriarchy. The Congress, which had disparate groups within it, was more concerned not to lose votes by too radical a reform and Nehru wanted the bill to be dropped. The orthodox sections blamed the architects of the bill as Westernized denizens alienated from the culture of the Hindu society.
Chapter 6 pushes us along further hurdles. Finally, the Special Marriage Act was passed, which replaced the earlier 1872 Act. The Hindu Marriage and Divorce Bill was placed before the Parliament in 1954–55. At the end, what resulted was piecemeal enactments, far from the original inspiration for a uniform code: the Hindu Marriage Act 1955; the Hindu Minority and Guardianship Act 1956; and the Hindu Succession Act 1956, amended in 2005. Codification efforts spanning over a decade-and-a-half ultimately succumbed to political compulsions to end up with a much diluted, truncated and watered down law. Sinha’s Chapter 6 is replete with citations of comments on the legislation by feminists as well as lawyers—a very useful introduction to the prevailing literature to newcomers of women’s studies. What is galling is that barring feminists, the legal profession and other interlocutors, it was seen more as a piece of law rather than as a gender equity attempt.
After independence, the state co-opted the women’s movement demands but from a welfare approach. The Dowry Prohibitiont Act in 1961 was in response to women’s agitations in the wake of dowry murders. The emergence of the women’s movement in the 1970s propelled new legislations, such as Family Courts, 1984, and Domestic Violence Act, 2005. The Vishaka Guidelines on Sexual Harassment at Work by the Supreme Court was another protective measure. As the National Commission of Women found, there was poor compliance of these laws. The Shah Bano case, where the government of the day bowed to conservative Muslim opinion to deny her maintenance under a civil law, is a precursor of what was yet to follow.
In conclusion, Sinha concedes that the Hindu Code Bill was a symbolic victory than a substantive move to empower women in India. The poor implementation is witness to that. Yet, she is positive about its relevance in terms of social awareness and gender consciousness in modern India. Alas Sinha, you spoke too soon! Rising violence against women daily, in the form of rape, continues to shame us and Justice Verma Committee’s recommendations have found only a diluted copy in the latest act passed by this ruling government. Thanks to the Internet’s publicity over events here, India has been declared the most unsafe country for women. Patriarchy unashamedly reigns supreme. The daily newspapers report continuance of violence against minor girls in urban areas and caste violence in rural areas. In which century are we?
As an excellent piece of work by a historian, the book can be mandatory reading for scholars in women’s studies, people in governance, women–men in non-governmental organisations (NGOs) and the legal fraternity. It deserves recognition, through award, from any esteemed academic body. However, I confess to a sense of disquiet by mentioning a few omissions. As the ostensible purpose of the book is to educate those of us who are not fully cognisant of ‘how it came to pass’, I would have liked it if she had given us a fuller explanation of Mitakshra and Dayabhaga laws. The reference is very brief and does not clarify what exactly their full provisions were. Likewise, the full text of the truncated acts of the Hindu Code could have been given in an appendix. Also, sapinda needs an explanation—what it implied.
Whether such egalitarianism did indeed remove centuries of discrimination on the basis of caste is a moot question. Later events were to prove that law is not enough to override entrenched social prejudices. She does acknowledge this weakness of legislation per se to combat deeply solidified social practises. The special merit of the book is what she has tried to rectify, namely, to move away from a single-minded attention to political history and show that family laws were a mere embellishment of a progressive stance adorning our statute books. How true indeed! To each abominable distortion in gender equality, the response was legislation. Sinha is aware of how both empirical reality and data on implementation show that legislation has had little impact on the reality of Indian women’s lives.