Personal Law and Citizenship in India's Transition to Independence

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Modern Asian Studies 45, 1 (2011) pp. 7–32. C! Cambridge University Press 2010doi:10.1017/S0026749X10000338

Personal Law and Citizenship in India’sTransition to Independence

ELEANOR NEWBIGIN

School of Oriental and African Studies, Thornhaugh Street,London WC1H 0XG, UK

Email: [email protected]

AbstractStudies of the post-colonial state have often presented it as a structure that hasfallen under the control of self-interested sections of the Indian elite. In terms ofcitizenship, the failure of the state to do more to realize the egalitarian promiseof the Fundamental Rights, set out in the Constitution of 1950, has often beenattributed to interference by these powerful elite. Tracing the interplay betweendebates about Hindu property rights and popular support or tolerance for thenotion of individual, liberal citizenship, this paper argues that the principlesespoused in the Fundamental Rights were never neutral abstractions but, longbefore independence, were firmly embedded in the material world of late-colonialpolitical relations. Thus, in certain key regards, the citizen-subject of the IndianConstitution was not the individual, freed from ascriptive categories of genderor religious identity, but firmly tied to the power structures of the communitygoverned by Hindu law.

Introduction

The inclusion of a list of Fundamental Rights in the Constitution of1950 seemed to make real a long standing Congress promise: thatindependence from British rule would bring about a dramatic changein the lives of ordinary Indians. Modelling itself on documents suchas the French Declaration of the Rights of Man and the AmericanBill of Rights, the Indian Fundamental Rights set out a vision of theindividual citizen-subject, unfettered by notions of gender, religionor caste. The Rights have been seen to mark a profound differencebetween the nation-state and its colonial predecessor.1 Underpinningthe colonial administration and legal system was an understanding

1 Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford UniversityPress, New Delhi, 1999 edn, 1966), pp. 50–61.

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of Indian society as comprising not autonomous individuals but socialcollectives, defined by caste, gender and religious identity.2 Indians’relationship with the colonial state was, in the main, mediated throughthis group identity—access to political office or the law was shapedby a subject’s sex and the religious or caste community to which heor she belonged. The passage of the Fundamental Rights suggesteda radical reform of this state-society relationship; whereas colonialsubjecthood was premised on difference and indirect contact with thestate, citizenship suggested a direct relationship between the stateand each and every individual Indian.

Six decades after independence, it is clear that many Indians donot enjoy the citizenship rights set out in the constitution. Indians’access to state influence and resources remains very much mediatedby gender, class and religion. In trying to explain the post-colonialstate’s failure to secure social equality, academics have often focusedon the way in which the state applied citizenship and governanceafter independence, helping to reinforce a sense that 15 August, 1947marks a clear watershed in the Indian populace’s relationship with thestate. There has been little consideration of the historical evolution ofIndian citizenship or of how this might have informed the developmentof a state-citizen nexus after independence.3 Rather, political andsocial inequality in contemporary India has been attributed to thedominance of self-interested sections of the Indian elite, who havecaptured state structures and resources.4 Supporting a notion thatthe current Indian state is in ‘crisis’, this argument implies that, wereit not for this elite domination, the Indian state would be able to securethe equal citizenship written into its constitution in the abstract.

The idea of the current crisis of the Indian state rests on theassumption that there exists a ‘correct’ model of state power and/or

2 D. A. Washbrook, ‘Law, State and Agrarian Society in Colonial India’, ModernAsian Studies, vol. 15, no. 3, (1981), pp. 653–658; Rosalind O’Hanlon, ‘Issues ofWidowhood: Gender and Resistance in Colonial Western India’ in Douglas Haynesand Gyan Prakash (eds), Contesting Power: Resistance and Everyday Social Relations in SouthAsia (Oxford University Press, New Delhi, 1991), pp. 62–108, especially pp. 77–79.

3 Recent exceptions are Mrinalini Sinha, Specters of Mother India: the GlobalRestructuring of an Empire (Duke, Durham & London, 2006); and RajnarayanChandavarkar ‘Customs of Governance: Colonialism and Democracy in TwentiethCentury India’, Modern Asian Studies, vol. 41, no. 3 (2007), pp. 441–470.

4 Pranap Bardhan, The Political Economy of Development in India (Blackwell, Oxford,1984); Achin Vanaik, India’s Painful Transition: Bourgeois Democracy in India (Verso,London, 1990); Atul Kohli, Democracy and Discontent: India’s Growing Crisis of Governability(Cambridge University Press, Cambridge, 1991).



P E R S O N A L L A W A N D C I T I Z E N S H I P I N I N D I A 9

citizenship rights that India should follow. Indeed, studies of post-colonial India have often been framed in response to questions aboutwhat did not happen, rather than why rights and political practicesdeveloped in the manner that they did. This paper seeks to breakfrom this trend and to place the origins of debates about individualrights and citizenship within a wider historical context. That theFundamental Rights could have secured a more secular and egalitarianstate-society relationship rests on the assumption that the view of theindividual citizen set out in their provisions has equal appeal andpertinence to all Indian citizens.

By arguing that debates about reform of men’s property rightswithin the family were crucial in shaping the intellectual frameworkwithin which people were interested and willing to support theFundamental Rights, this paper challenges this view. It shows howcolonial understandings of the differences between Hindu and Muslimfamily law meant that the liberal framework of individual rightsexpounded in the Fundamental Rights held particular appeal forHindu men in a way that it did not for Muslims and other social groups.Tracing the pressures and interests driving legislative debates aboutpersonal law, the first part of this paper shows that disputes aboutproperty rights, together with the development of new structures ofpolitical representation, helped to generate much discussion amongstIndian men about legal rights and reform. The particular emphasisplaced on scriptural authority in colonial interpretations of Muslim lawprompted Muslim lawyers to call for reform by challenging colonialinterpretations of Muslim family practices. Similar arguments werelater taken up by Hindu reformers seeking to change their own legalsystem. Yet, colonial perceptions of Hindu law as a product of socialevolution more than scriptural authority meant that Hindu reformersframed their arguments in more secular terms than their Muslimcounterparts. Turning in particular on the historical position of womenin Hindu society vis-à-vis their place under European legal structures,the debates about Hindu law reform often suggested a close linkbetween the individual of the Hindu law debates and that of westernliberal political-thought, a claim that had much potency for thosewishing to question the civilizing mission and political legitimacy ofthe colonial state. By the early twentieth century, a significant groupof influential Hindu men appeared to be open to the developmentof a framework of rights influenced by secular, liberal ideals. Oncloser inspection, however, Hindu reformers were not calling forfreedom and rights for everyone. Like the Muslim lawyers before them,




Hindu legislators were interested not only in undermining the legalstructures that had developed under colonial rule, but also in imposingnew ones that strengthened their own power. As a result, in certainkey regards, the citizen-subject that emerged in this period was notthe free individual in touch with the state, but firmly tied to the powerstructures of the community governed by Hindu law.

Exploring the debates that shaped the Fundamental Rights, the aimof this paper is not simply to challenge the accepted periodization oftwentieth-century Indian history. It also seeks to question the degreeto which we can divide and treat as separate categories the notionof colonial subject and independent citizenship in India. The pre-independence debates about personal law reform demonstrate clearlythe significance of colonial legal structures in shaping post-colonialcitizenship and Indians’ attitudes towards the independent state.

Rights and the individual under colonial family law

The particular structure of the Anglo-Indian legal system had long-term implications for debates about rights in India. From the outsetof British rule, officials distinguished between a public legal sphere,governing relations in the market place, and the private or personalrealm of the family, which was administered according to subjects’ ownreligious customs and traditions.5 As many scholars have highlighted,the ways in which officials ‘protected’ indigenous customs served infact to rigidify these practices in a manner that often benefited thepower relationships on which colonial governance depended.6

British assumptions about the importance of scriptural legal sourcesand religious traditions shaped the ways in which officials ‘discovered’Indian traditions and recorded them under different categories ofHindu and Muslim practices, a distinction that was to grow morerigid over the course of colonial rule.7 Under Mughal rule, religious

5 Washbrook, ‘Law, State and Agrarian Society’, pp. 653–655.6 David Gilmartin, ‘Kinship, Women and Politics’ in G. Minault (ed.), The Extended

Family: Women and Political Participation in India and Pakistan (Chanakya Publications,Delhi, 1981), pp. 151–170; Lata Mani, Contentious Traditions: the Debate on Satiin Colonial India (University of California Press, Berkeley, 1998), Veena TalwarOldenberg, Dowry Murder: the Imperial Origins of a Cultural Crime (Oxford UniversityPress, Oxford, 2002).

7 Bernard Cohn, ‘Law and the Colonial State in India’ in Bernard Cohn, Colonialismand its Forms of Knowledge: the British in India (Chichester, Princeton, 1996), pp. 57–75.




scripture had played a crucial role in legal governance. Precedentwas given to interpretive practice, so that legal scholars, or qadis,applied the principles of the Qur’an and other Islamic legal texts to aparticular situation, rather than a literal reading of their precepts. Thedesire of British officials to establish definite knowledge of their newsubjects led them to emphasize these texts as definite sources in andof themselves, eroding the place of legal interpretation and the moreflexible, socially-conditional nature of the legal system. Legal scholarsof the Hanafi school had been particularly productive under Mughalrule and these texts were given precedence in colonial interpretationsof Muslim law over other schools of legal thought.8 Thus, in focusingon text as the main source of religious law, British administratorsglossed over not only divisions between Sunni and Shi’a Muslims butalso many of the different schools of legal scholarship that had evolvedunder Mughal rule. Certain customary practices were retained but, bythe mid-nineteenth century, Muslim personal law had emerged as aclearly defined, text-based legal structure that could be easily appliedand hard to dispute.9

British interpretations of Islamic succession law rested on a readingof the al-Sirajiyya, another Hanafi text.10 Prescribing the division ofa man’s property between all his children, rather than a system ofprimogeniture, these practices were regarded as far more equitablethan English succession law.11 In spite of this, officials were somewhatselective in the way in which they applied the principles of theal-Sirajiyya. Directives to include daughters in the division of a father’sestate were, in many parts of India, ignored in favour of customary

8 Charles Hamilton’s four volume translation of the Hidaya—a collection of Hanafilegal opinions—was published in 1791 and for much of colonial rule, the mainEnglish translation of this Islamic text. The Hidaya did not include any discussionof inheritance practices, and British knowledge of Indian Muslim inheritance lawdeveloped on the basis of William Jones’ translation of another Islamic text, al-Sirajiyya, which appeared the following year in 1792. Michael Anderson, ‘IslamicLaw and the Colonial Encounter’ in David Arnold and Peter Robb (eds) Ideologiesand Institutions: A SOAS South Asia Reader (Curzon, Richmond, 1995) pp. 171–178,especially pp. 174–175.

9 Scott Alan Kugle, ‘Framed, Blamed and Renamed: the Recasting of IslamicJurisprudence in Colonial South Asia’, Modern Asian Studies, vol. 35, no. 2 (2001),pp. 257–313, especially pp. 300–301.

10 Gregory C. Kozlowski, Muslim Endowments and Society in British India (CambridgeUniversity Press, Cambridge, 1985), pp. 128–131.

11 David S. Powers, ‘Orientalism, Colonialism and Legal History: the Attack onMuslim Family Endowments in Algeria and India’, Comparative Studies in Society andHistory, vol. 31, no. 3, (July, 1989), p. 556.




practices, which sidelined women heirs and limited a woman’shold over property to her lifetime only. The colonial courts upheldcustomary practices in a rather erratic manner, exempting someMuslim families and clans from a strict application of Islamic law.12

These cases aside, British jurists’ emphasis on religious scriptureoften served to strengthen Muslim women’s claims to property. Thiswas particularly true in terms of Muslim women’s right to mehr,the property promised to a Muslim bride as part of the marriagecontract, the payment of which, unlike a dowry, is often deferred.13

In a number of prominent cases, the colonial courts ruled in favourof a Muslim woman’s right to mehr, granting her control over part ofher husband’s estate until this was paid.14 Though it did not alwaystranslate into secure legal rights in terms of women’s day-to-day life, inprinciple, colonial Muslim law acknowledged the legal personhood andproperty-owning capacity of Muslim women. Indeed, this became oneof the central features defining Muslim family practices against thoseof Hindus: Muslim families were considered to comprise property-owning individuals, whereas the natural condition of a Hindu familywas assumed to be ‘joint’.15

Although the focus on religious scripture seemed to give greateroutline to a system of Muslim law, the same could not be said interms of Hindu law. The plethora of Hindu religious texts and widedifferences in regional practices meant that Hindu law was moreopen to interpretation by colonial scholars. The ideas of one Britishlegal scholar were particularly important in reshaping Hindu law inthis period. Henry Sumner Maine, an eminent scholar of civil andRoman law, in 1861 published his Ancient Law: its connection with theearly history of society, and its relation to modern ideas, in which he argued

12 Ayesha Jalal, Self and Sovereignty: Individual and Community in South Asian IslamSince 1850 (Oxford University Press, New Delhi, 2001), pp. 150–153; Bina Agarwal,A Field of One’s Own: Gender and Land Rights in South Asia (Cambridge University Press,Cambridge, 1994), pp. 118–119, 288–289; Agriculturalist Muslims in Punjab weregoverned according to an entirely separate regional system of customary law, see,N. Hancock Prenter, ‘Custom in the Punjab’ Parts I and II in Journal of ComparativeLegislation and International Law, 3rd Ser. 6, no. 1 (1924), pp. 67–80; and Ibid. 6, no. 4(1924), pp. 223–237.

13 Bina Agarwal, A Field of One’s Own, pp. 227–230.14 G. C. Kozlowski, ‘Muslim Women and the Control of Property in North India’,

Indian Economic and Social History Review, vol. 24 (1987), pp. 163–181.15 Lucy Carroll ‘Daughter’s Rights of Inheritance in India: a Perspective on the

Problem of Dowry’, Modern Asian Studies, vol. 25, no. 4 (Oct 1991), pp. 791–809,especially p. 794.




that contemporary Hindu law operated in a similar way as had ancientRoman law.

Ancient Roman law was, according to Maine, organized around theprinciple of Patria potestas, meaning that the head of the family heldpower to the complete negation of the claims of individual members.Within this system younger men had some authority as potentialfamily heads but a woman remained, for the duration of her lifetime,the powerless dependent, first of her father and then the head ofher husband’s family. This status was known as ‘perpetual tutelage’.While western society had long advanced from this state of affairs,Maine argued, such ‘progress’ had never taken place in India so thatthis legal system, ‘survives in absolute completeness’.16 The thesis wonMaine much public attention and in 1862 he took up the post of legalmember of the Viceroy’s Council. In the law reforms over which hepresided, the idea of the joint family became the one legal structurethat was seen to underpin regionally diverse systems of Hindu law.

While the joint family was common amongst Hindus and Muslimsas a sociological unit—i.e. a family of multiple generations sharing asingle home—under Maine’s reforms the joint family came to be seenas the primary legal unit of Hindu society. Under both Mitaksharaand Dayabhaga, the two dominant schools of Hindu law, a Hindu manwas entitled to hold self-acquired properties individually.17 The familyestate, however, was held as a collective. The nature of the collectivevaried between the two schools. Under Dayabhaga law, governingHindus in Bengal and parts of Assam, the ‘joint family’ was understoodas something like a compact between property owning individuals.Members held a fixed share of the estate that, on their death, passedto close family relatives, including widows. Under Mitakshara lawwhich governed Hindus almost everywhere else in India,18 the jointfamily unit was considered a single entity within which there were no

16 Maine, Ancient Law (1906) pp. 157–158, cited in D. N. Mitter, The Position ofWomen in Hindu Law, (Inter-India Publications, Calcutta, 1913; reprinted New Delhi,1989), pp. 122–123. Maine’s thesis owed much to ideas of Social Darwinism shapingintellectual thought at this time. See Leigh Denault, ‘Partition and the Joint Familyin Nineteenth-century North India’, Indian Economic and Social History Review, vol. 46,no. 1 (2009) especially pp. 32–40.

17 For a fuller description of succession practices and rights under the schools ofHindu law see Bina Agarwal, A Field of One’s Own, pp. 85–91.

18 One important exception to this is the matrilineal schools of law in operationin Southern India. However, even these were organized around a joint familysystem, known as a tarwad, which operated much like the coparcenary system, exceptthat property passed along the maternal line. N. R. Raghavachariar, Hindu Law:




individual shares—much like in the ancient Roman family. Known asa ‘coparcenary’, this unit comprised up to four generations of malerelatives whose share in the family estate shrank with a new birth andgrew with a coparcenary member’s death. Yet, the coparcenary was notopen to all family members. The principles governing the devolutionof property varied between the two schools of Hindu law, Mitaksharaoperating on the basis of propinquity, or blood relationship, andDayabhaga on the basis of a relative’s ability to perform certainoblations and ceremonies that would bestow virtue upon the dead.Both concepts operated in a manner that gave preference to sonsand male relatives and barred women from membership of the jointestate.19 Even within the Mitakshara family, coparceners’ sharedproperty rights did not translate into equal access to and influenceover the family estate. The coparcenary was managed, on behalf ofothers, by the eldest member, usually the father, who was known asa karta. While no decision could be made without the full consent ofall coparceners, the karta enjoyed a stronger influence over the familyestate. Thus, the capacity of younger men to exercise their right to ashare of the joint family property was limited by the very hierarchicalstructure of power within the family.

Individual rights and legal powers were largely absent from Anglo-Hindu marriage law also. The reformed Hindu personal law endorsedthe claims that had long been advanced by upper caste Hindu leadersthat ‘true’ Hindu marriage was a sacrament and not, as was thecase under British and Muslim personal law, a contract.20 Just asthe coparcenary transcended the individuals which it comprised, somarriage transformed the couple into an inseparable unit. While inprinciple conjugal partners were equal, Hindu property law meantthat, by virtue of his greater economic powers, a husband coulddominate his wife. Barred from entering her natal coparcenary, awoman had little legal claim to parental support following marriage,when she became the dependent not simply of her husband but ofhis coparcenary. In this way the sacramental marital unit worked in

Principles and Precedents, Vol. II (Madras Law Journal Office, Madras, 1935, 1980 edn),pp. 703–704; Bina Agarwal, A Field of One’s Own, pp. 109–120.

19 Bina Agarwal, A Field of One’s Own, pp. 88–89.20 See Aishika Chakrabarti, ‘Widowhood in Colonial Bengal 1850–1930’,

Unpublished thesis, University of Calcutta (2004); Samita Sen, ‘Offences AgainstMarriage: Negotiating Custom in Colonial Bengal’, in Mary E. John and Janaki Nair(eds), A Question of Silence? The Sexual Economies of Modern India (Kali for Women, NewDelhi, 1998), pp. 77–110.




tandem with the coparcenary system to support a very hierarchicalsystem of patriarchal legal authority.

Contesting colonial law: religious tradition versus legalmodernization

Administrative streamlining and legal reforms in the 1860s furtherconsolidated and codified colonial interpretations of personal law.These changes did not bring about sweeping changes in domesticpractices or serve to ‘reinvent’ Indian family life, but rather set theframework within which family disputes would be judged and mediatedby the colonial courts.21 Wide ranging social and economic changes inthe second half of the nineteenth century served to make such disputesincreasingly likely.22

It was not only the legal system that underwent comprehensivereform in this period. The transition to Crown rule was accompaniedby the extensive restructuring and expansion of the colonialadministration, creating new employment and education possibilitiesfor Indians.23 This was also a period of economic transformation asthe Indian economy emerged from a state of agrarian stagnation tobecome a major provider in global trading networks.24 Together thesedevelopments helped to drive urban expansion, a process that drewpeople to cities and created new ties between urban areas and theirrural hinterlands, both in terms of patterns of exchange and, with therailway networks, in terms of physical contact.25

21 Eleanor Newbigin, Leigh Denault and Rohit De, ‘Personal Law, Identity Politicsand Civil Society in Colonial South Asia’, Indian Economic and Social History Review,vol. 46, no. 1 (2009), pp. 1–4.

22 Mytheli Sreenivas has shown that, in Madras, litigation rates for cases involvingHindu family property grew considerably in this period; disputes grew in Madras fromthe second half of the nineteenth century onwards. Mytheli Sreenivas, ‘Conjugalityand Capital: Gender, Families, and Property under Colonial Law in India’, Journal ofAsian Studies, vol. 63, no. 4 (2004), pp. 937–960, especially p. 944. fn 11.

23 B. B. Misra, The Indian Middle Classes (Oxford University Press, London, 1961),pp. 308–324.

24 Washbrook, ‘Law, Sate and Agrarian Society’, pp. 669–673.25 C. J. Baker, An Indian Rural Economy 1880–1955: The Tamilnad Countryside

(Clarendon, Oxford, 1984), especially pp. 241–249 and 414–420; Tanika Sarkar,Hindu Wife, Hindu Nation (Permanent Black, New Delhi, 2001), pp. 8–16; RajnarayanChandavarkar, The Origins of Industrial Capitalism in India: Business Strategies and theWorking Classes in Bombay 1900–1940 (Cambridge University Press, Cambridge, 1994),pp. 23–67.




The way in which Indians experienced these expandingopportunities was deeply informed by the structures of property law.Wealthy Muslim families found that the colonial state’s interpretationof Islamic succession laws made it difficult for them to build uptheir wealth and to protect their estates against fragmentation andprofligate relatives in the future.26 In other Muslim countries, inthe Middle East in particular, Muslims used waqf law, a system ofendowment similar to trust in English common law, as a means ofcircumventing the Islamic legal prescriptions about dividing an estatebetween family members. Derived from the Arabic waqafa meaningto stop or hold, a waqf estate was one that could not be affected bysuccession practices, by sale or by seizure.27 A waqf was most commonlymade to endow a religious or community institution, for example amadrassah or hospital. But, it also allowed families to manage thetransmission of considerable wealth from one generation to the next,creating something like a trust-fund for future generations that wasprotected against interference by non-family members.28 In India,however, the focus on text rather than custom led officials to concludethat private waqf had no basis in Islamic law and that the only legaluse of waqf law was to endow public institutions.29 In the rapidlychanging social and economic context of the late nineteenth century,Muslim lawyers and landholders expressed great frustration at thisinterpretation of waqf law.

Amongst wealthy Hindus, however, it was colonial jurists’ emphasison joint, rather then individual, rights that created difficulties.The 1860 law reforms enforced the joint family at precisely themoment when wider trends were placing this structure under pressure.

26 Muslims governed by customary legal systems, especially those in Punjab andBengal, were not affected by this reading of waqf law in quite the same way. Powers,‘Orientalism, Colonialism, and Legal History’, pp. 554–560. See also Kozlowski,Muslim Endowments, pp. 71–72 and footnote 10 above.

27 Kozlowski, Muslim Endowments, pp. 1–3.28 Ibid, pp. 10–14; The use of waqf law in this developed in the Ottoman Empire

during the eighteenth century in response to the state’s fiscal policies but becamean even more popular way of protecting a family’s hold over land in the nineteenthcentury, with the expansion of colonial power in this region. Powers, ‘Orientalism,Colonialism and Legal History’, pp. 537–538.

29 Kugle, ‘Framed, Blamed and Renamed’, pp. 286–294. Debates about the publicand private character of the waqf were paralleled by debates about private trustsgoverned by Hindu law. On the emergence of this notion of public economic spaceand its impact on Hindu personal legal structures see Ritu Birla, Stages of Capital:Law, Culture and Market Governance in Late Colonial India (Durham and London: DukeUniversity Press, 2009).




Increasing land sales in certain areas raised questions about theoperation of the coparcenary system vis-à-vis contractual rights. The‘unfixed’ nature of the shares in the coparcenary and the needto take into account the possibility of future, unborn coparcenerscreated confusion about the ability of a karta to enter into contractualarrangements concerning the joint estate.30

Social changes in this period also created tension within the jointfamily unit. Urban migration divided larger families geographically,creating new households with their own demands for resources. Theincrease in salaried employment was also a source of confusion. Therewas much legal debate about whether salary was the property of theearner or his family, particularly if the former had been the recipientof a specialist or expensive education.31 Family disputes about suchquestions began to spill out of the home and into the courts, andthe late nineteenth century saw a rapid increase in the number ofcases involving coparcenary rights.32 Later political reforms and theexpansion of political representation for Indians meant that thesediscussions also began to enter the legislatures. While British officialscited the policy of religious neutrality to distance themselves fromthese debates, many Indian legislators were only too keen to use theirnewfound power to improve their own economic interests.

Differences in the ways in which religious personal law had beeninterpreted under British rule affected the ways in which Hinduand Muslim representatives called for reform. In terms of Muslimlaw, the colonial state’s emphasis on textual authority in Islamiclaw meant that to oppose existing waqf regulations on the groundsthat they were out of date or inappropriate for contemporary Indiansociety raised questions about the relationship between scriptureand modern Muslim society in general. Sir Sayyid Ahmad Khan, aneminent thinker and reformer, campaigned vigorously to highlightthe economic and social difficulties suffered by Muslim families under

30 Alan Gledhill, ‘The Influence of Common Law and Equity on Hindu Law Since1800’, The International and Comparative Law Quarterly, vol. 3, no. 4 (1954) pp. 581–587;Rachel Sturman, ‘Property and Attachments: Defining Autonomy and the Claims ofFamily in Nineteenth-century Western India’, Comparative Studies in Society and Historyvol. 47, no. 3 (2005), pp. 611–637.

31 Note by J. A. Baines, on special duty for the purpose of Income Tax Act,17 August, 1886, National Archives of India, New Delhi (hereafter NAI), GOI FinanceDepartment, Separate Revenue—A Proceedings, January 1887, nos. 37–46.

32 For a summary of Privy Council rulings on this matter see the Statement ofObjects and Reasons to Hari Singh Gour’s Bill to define the liability of a Hinducoparcener, (NAI) GOI Home Department, Judicial F. 407/1924.




existing legal arrangements. He faced much opposition from otherMuslim representatives, however, and in 1879, was forced to withdrawlegislative proposals to reform waqf law following criticism that theycontravened the textual basis of Islamic law.33

Hindu reformers experienced similar problems. In 1891, a yearbefore the Indian Councils Act was passed, Vembakkam BhashyamIyengar introduced to the Madras Legislature a Gains of LearningBill that sought to confirm a Hindu man’s salaried earnings as hisindividual property rather than part of the coparcenary estate. Whilethe Bill won the support of ‘professional groups’, opponents arguedthat it attacked the family unit that formed the foundation of Hindusociety and religion.34 Cautious of provoking civil unrest, Britishofficials vetoed the measure on the grounds that it marked a departurefrom Hindu tradition.

Muslim lawyers played a pivotal role in reframing the terms of thedebate about personal law reform away from the deadlock betweenarguments about tradition and innovation. Turning the Privy Council’sown defence of Islamic legal tradition on its head, lawyers such asAmir Ali argued that a waqf made to benefit a family had always beenpermitted under Muslim law. Far from upholding ancient practice,colonial waqf law was itself a ‘modern’ innovation or corruption of‘true’ religious practice. The assertion of Muslim autonomy to decidecorrect religious tradition won support from many religious leadersand ulama who were not so closely tied to the government. Thus,although these arguments were made to defend the economic interestsof social groups traditionally allied to the colonial state, they helpedto construct an image of Islamic unity.

Maintaining this ‘communal unity’ was particularly importantto Mohammad Ali Jinnah. The successful Bombay lawyer had, bythe early twentieth century, become well known for his politicalactivity and involvement with the Indian National Congress. Whilehe supported co-operation between Hindu and Muslim politicians, healso believed firmly in the distinct interests, needs and identities of thetwo religious groups and, from 1913, was a member of both Congressand the Muslim League.35 Jinnah’s legal practices became increasingly

33 Kozlowski, Muslim Endowments, pp. 159–162.34 Sreenivas, ‘Conjugality and Capital’ pp. 944–945.35 Jinnah abandoned the Congress following its Nagpur session in 1920, Matlubul

Hasan Saiyid Mohammad Ali Jinnah: A Political Study (Sh. Muhammad Ashraf, Lahore,1945; 1953 edn), pp. 125–135.




bound up with his political ambitions; in the same year that he joinedthe League, Jinnah helped to secure the passage of the MussalmanWakf Validating Act, which made a ‘family waqf’ legitimate on thegrounds that this represented a more authentic interpretation ofIslamic legal tradition.36 The act did not bring an immediate endto debates about Muslim family property; problems with retrospectiveapplication and administration of the new rights prompted a flurry offurther bills over the next decade.37 But it did succeed in bringingwaqf law in line with the needs and interests of wealthy Muslimswithout challenging the specifically religious identity of Muslim law.Its passage marked out waqf law particularly, and Muslim law moregenerally, as a domain best administered by learned Muslims than bycolonial jurists.

Hindu reformers were quick to follow this lead. Moving the emphasisin their arguments away from criticism of actual religious traditionsfocused instead on the way they had been interpreted by British judges.One of the key works to take on the issue of Hindu law reform in thisway was Dwarka Nath Mitter’s The Position of Women under Hindu Law.38

Published the year that the Wakf Validating Act was passed, Mitter’scomprehensive history of Hindu women’s rights seemed to draw muchinspiration from Muslim lawyers’ criticism of colonial understandingsof traditional practices.

Mitter refuted Maine’s claim that Hindu law reflected a perfectcontinuation of Roman law, particularly with regards to Patria potestas.Prior to British rule, Mitter argued, Hindu law had been a very fluidand dynamic legal system. Contemporary legal difficulties were not aresult of social stagnation but of colonial officials’ limited linguisticskills and misunderstanding of the role of Pandit counsel. Drawing onhis own translations of the Rig Veda, one of the oldest Vedic texts,Mitter argued that Maine and his colleagues had misunderstood thereal meaning of women’s dependency in the ancient Hindu texts. AHindu woman was brought under the legal authority of her family topreserve her chastity and protect her from vice. But this was not a state

36 While waqf is now the common spelling used for this term, the 1913 Act usedthis older construction. I cite the formal title of the act, rather than amending it inline with modern usage. Kozlowski, Muslim endowments, pp. 177–191.

37 Indeed, reform of waqf law also continued after independence, though it wasmuch more concerned with waqf management than with family entitlement. KhalidRashid, Wakf administration in India (Vikas, New Delhi, 1978), pp. 23–35.

38 Mitter, The Position of Women under Hindu Law (Calcutta, 1913; reprintedNew Delhi, 1989).




of ‘perpetual tutelage’ or a denial of legal personhood: a Hindu woman‘was not prevented by reason of her dependence from performingany juristic act (e.g. contract of sale or loan) without the concurrentauctoritas of the guardian’.39 Far from being fossilized, Mitter argued,these practices and rights had been whittled away over time tobecome the corrupted and inauthentic legal system administered bythe colonial courts. In this way, his book subverted Maine’s argumentabout the social evolution of Hindu society, while also challengingmore long standing colonial claims about the relationship betweenthe status of women and a society’s fitness for self-rule.

While there were many similarities between the arguments aboutreligious tradition and colonial interpretation put forward by Mitterand the Muslim lawyers involved in the debates about waqf, there wasone important difference. Responding to the heavy emphasis placedon doctrinal teaching in colonial interpretations of Muslim law, Jinnahand his colleagues had framed their arguments in terms of religion: thecurrent legal system needed to be reformed because it subverted ‘true’Islamic practice by applying an incorrect reading of Muslim family law.The absence, in colonial interpretations of Hindu law, of a scripturalbases equivalent to that of colonial Islamic law meant that Mitter’sargument was framed in ‘secular’ terms. Engaging with debates aboutRoman civil law and notions of social progress, Mitter cited history,rather than religious doctrine, to support personal law reform. In sodoing, his thesis sought to bring together a sense of Hindu nationhoodbased on a glorious, ancient past, with concern about women’s statusin contemporary Indian society.

While couched in terms of concern for women’s interests, thiscritique of Anglo-Hindu law also offered certain advantages to Hindumen. The principle of Patria potestas did not simply underpin theexclusion of women from the family estate; granting power to theeldest male in the family, the karta, it was the cornerstone of malesubordination within the family. As with Muslim lawyers’ argumentsabout waqf, Mitter’s account of the historical development of Hindulaw intersected with a drive to improve men’s property rights underthe current legal system. The emphasis on social evolution in colonialaccounts of the development of Hindu law meant that, while Muslimlawyers focused on religious text, Mitter’s argument focused onwomen’s rights and more secular arguments about social progress.

39 Ibid., p. 124.




His argument was not evidence of more liberal attitudes amongstHindu lawyers, but a reflection of the structures of colonial personallaw.

Devolution and personal law reform in the 1920s

Devolution under the 1919 Government of India Act allowed debatesabout personal law reform to be drawn into the Indian legislatures.The early 1920s saw the introduction of several private membersbills that, if they did not attack the Hindu coparcenary structuredirectly, sought to grant greater legitimacy to alternative family set-ups within which individual rights received greater acknowledgement.Most of these proposals came from lawyers in the Presidencyregions.40 The bills were framed largely in the language of women’srights, proposing reforms that would secure a widow’s access to herhusband’s share in coparcenary property, either directly or throughmaintenance claims.41 Government officials remained neutral towardsthese measures. This meant that most proposals failed to even makeit onto the floor of the Assembly, having been given very low placingon a legislative ballot list that prioritized government business.

Outside the legislatures, the bills were accompanied by attempts toraise popular interest in the subject of women’s rights and law reforms.These campaigns were also dominated by politically ambitiousmembers of the legal profession. In 1923, Mukund Ramrao Jayakar,a lawyer from Bombay city, and later a legislative representative forthat region, founded the Hindu Law Research and Reform Association(HLRRA). One of the primary aims of the HLRRA was to uncoverthe ‘principles underlying the system of Hindu Law. . .[and]. . .proposelegislation with a view to rectify errors in the administration of HinduLaw, arising from departure from the true spirit of the Hindu Code. . .’under British rule.42 Anxious to avoid the label of ‘radical modernizer’,Jayakar’s view of pre-colonial Hindu law echoed Mitter’s views: British

40 These included R. R. Kale, a lawyer from Maharashtra and Sambanda Mudaliar,a lawyer from Georgetown in the Madras Presidency. See Eleanor Newbigin, ‘TheHindu Code Bill and the Making of the Modern Indian State’, Unpublished thesis,University of Cambridge (2008).

41 Eleanor Newbigin, ‘A Post-Colonial Patriarchy? Representing the Family in theIndian Nation-State’, Modern Asian Studies, vol. 44, no. 1, (2010), pp. 133–137.

42 Undated pamphlet setting out the Aims and Objectives of the All-India HinduLaw Research and Reform Association (NAI), M. R. Jayakar Papers F.4.




rulers had, as a result of linguistic limitations and ignorance of Hindulife, misinterpreted Sanskrit legal texts to establish a rigid systemof law that served neither Hindu traditions nor the interests of thecommunity.43 These ideas were further elaborated through publicmeetings and printed pamphlets put out by the Association’s regionalgroups.44

The debates about Hindu law reform were important in shapingmale legislators’ attitudes towards the claims and programmes ofthe all-India women’s groups founded at this time. In the decadefollowing World War I three all-India women’s organizations wereset up.45 Women members of these organizations were interested in abroad range of issues, including legal reform and women’s position andrights within the home. The emergence of these groups has typicallybeen seen as a moment in which Indian women refused to be thesubjects of reform but became interested in shaping and changingtheir lives and social status themselves. While this was undoubtedly animportant transition, the success of women’s organizations’ campaignsand their growing prominence in Indian political life owed much tothe constellation of male interests around the issue of women’s rightsin the context of personal law reform. The three all-India women’sorganizations strongly eschewed religious alignment, their leadersoften arguing that women’s politics formed a vital foundation forcross-communal unity.46 Yet, the particular significance of argumentsabout women’s rights for Hindu property law meant that, at times,the women’s movement seemed to enjoy a stronger relationship withHindu legislators than with their Muslim counterparts.47 By the late1920s, therefore, ideas about women’s rights had seemed to gain

43 Letter from Jayakar to Law Minister, N. N. Sircar, 16th August, 1936, (NAI)M. R. Jayakar Papers F.4.

44 The HLRRA had branches in Bengal, Allahabad and Nagpur. A collection oftheir written material and minutes is available in (NAI) M. R. Jayakar Papers F. 4.

45 These were the Women’s Indian Association (WIA), founded in 1917, theNational Council of Women in India (NCWI), established in 1925 and the All IndiaWomen’s Conference (AIWC), which met for the first time in 1927 to discuss women’seducation but rapidly grew into a more permanent organization. Geraldine Forbes,Women in Modern India (Cambridge University Press, Cambridge, 1996), pp. 72–91;Catherine Candy ‘Competing Transnational Representations of the 1930s IndianFranchise Question’, in Ian Christopher Fletcher, et al. (eds), Women’s Suffrage in theBritish Empire (Routledge, London, 2000), pp. 191–206. A. Basu and B. Ray Women’sStruggle: a History of the All-India Women’s Conference 1927–1990 (Manohar, Delhi, 1990).

46 Basu and Ray, Women’s Struggle, pp. 19–21, 28–29.47 M. R. Jayakar of the HLRRA was very involved with and regularly contacted

for advice and to lend public support to the campaigns of the All-India Women’s




considerable acceptance and support from Hindu male representativesand spokesmen in particular.

This relationship was to prove significant with regard to the mostcelebrated personal law reform project of this period—the ChildMarriage Restraint Act. Mrinalini Sinha has shown how politicaldevolution within India, together with shifts in global imperial politics,created a brief window within which it was possible to pass thisgroundbreaking act—the only family law measure to cut across thereligious-based personal laws that has ever been passed in India.48

Yet, support for the act was also much informed by the longer runningdiscussions about law reform amongst Hindu and Muslim legislators.The publication of Katherine Mayo’s inflammatory Mother India in1927 served to place the issue of women’s rights at the forefront ofdebates about further constitutional reforms and therefore to imbuethis issue with even greater significance in relation to arguments aboutIndians’ fitness for self-rule. Passed in response to Mayo’s claims, Sinhahas shown how the Child Marriage Restraint Act undercut the colonialstate’s paternalist claims. Introduced initially as a private member’sbill, this act was heralded as evidence of the fact that Indians, and notBritish officials, were the primary agents of social reform. As such, theact served to further affirm the earlier claims of Jinnah and Mitter thatIndians, rather than British officials, possessed the greatest power toeffect social and legal change.

Focused on the right of the child bride to claim protection fromthe state, and not simply her family, the Child Marriage RestraintAct was undoubtedly a groundbreaking measure. Its passage served toplace issues of women’s rights squarely at the centre of the ongoingdebates about religious authority and personal law. Yet, the act wasnot different enough from the claims made in these debates to createa real or permanent rupture in the boundaries of masculine autonomyand religious identity that informed these discussions. Male reformerscontinued to call for law reform in a manner that seemed to addressconcerns about women’s rights but which remained wholly in keepingwith their own propertied and political interests. Muslim reformersdid this by further invoking the religious identity of their legal system.For Hindus, however, the issues raised by the Mother India episodeforced reformers to call for greater legislative intervention in Hindu

Conference as well as more local Bombay Women’s Organisations, such as the BombayPresidency Women’s Council. See (NAI) M. R. Jayakar Papers F.215, 217, 523.

48 Mrinalini Sinha, Specters of Mother India.




law. While this created specific problems from Hindu legislators,it also allowed them to associate their demands with the radical,‘modernizing’ drive of the Child Marriage Restraint Act in a waythat their Muslim colleagues could not.49

Reinforcing the religious/liberal divide: law reformin the 1930s

Debates about personal law reform in the 1930s were marked by astrengthening, rather than weakening, of the religious divide. Whenthey came to take their seats in 1937, newly-elected members of thecentral legislature found themselves facing a long list of social reformproposals which had been put on hold during the constitutional debatesof the late 1920s and early 1930s. This included two highly publicizedmeasures, Dr G. V. Deshmukh’s Hindu Women’s Right to Property Billand Mr H. M. Abdullah’s Muslim Personal Law (Shariat) ApplicationBill, which proposed comprehensive reform of the Hindu and Muslimpersonal legal structures respectively. In the wake of the Mayo-controversy, both were framed as measures to reform the legal andsocial status of Indian women, though, once again, Hindu and Muslimreformers used quite different arguments to promote their proposals.

In early 1935, H. M. Abdullah sought government permission tointroduce what was to become known as the Shariat Application Bill.This bill was virtually a replica of a measure proposed, but neverformally introduced, by Mian Abdul Haye, an urban representativeof the Punjab Unionist Party, in 1929, at the height of the agitationagainst Mother India.50 Both Haye and Abdullah presented the bill asan attempt to improve the condition of Muslim women. Yet, theirargument as to how the bill would do this had much in commonwith the criticism of colonial interpretation of religious practicesraised in the waqf debates. As already discussed, colonial readingsof Muslim law had drawn heavily on textual sources but continuedto uphold certain customary practices. This meant that the legal

49 On the relationship between modernity and the Child Marriage Restraint Actsee, Mrinalini Sinha, ‘The Lineage of the “Indian” Modern: Rhetoric, Agency andthe Sarda Act in Late Colonial India’ in A. Burton (ed.), Gender, Sexuality and ColonialModernities (Routledge: London, 1999), pp. 207–220.

50 Haye went on to become Minister for Education in UP, see Ian Talbot, KhizrTiwana, the Punjab Unionist Party and the Partition of India (Curzon, Richmond, 1996),p. 90, and Chapter 5, fn 42.




system governing Indian Muslims’ families varied according to regionand ‘tribal’ community. Though the colonial courts had often upheldMuslim women’s claims to mehr, in other areas of life, customarypractices were cited as a means of preventing Muslim women fromexercising the property rights set out in text-based Islamic law. Thiswas certainly the case in Mian Abdul Haye’s homeland of Punjab whereMuslim agriculturalists were governed by a customary legal system.51

In the wake of the Mayo controversy, the argument for eradicatingregional differences in Muslim law went hand in hand with argumentsabout women’s rights. Introducing the bill, H. M. Abdullah explainedthat he wished to replace the degraded and unjust colonial legal systemwith a more authentic interpretation of Muslim law that was far moresocially progressive.

The state of Muslim Women under customary law is simply disgraceful.The Muslim women’s organisations have condemned customary law as itadversely affects their rights and have demanded that the Muslim PersonalLaw (Shariat) should be made applicable to them. The introduction of theMuslim Personal Law will automatically raise them to the position to whichthey are naturally entitled.52

In this way, the bill sought to reinforce the claim made about theChild Marriage Restraint Act, that the primary agent of social reformwas not the colonial state but Indians, or in the case of the ShariatBill, Indian Muslims. At the same time, the bill appealed to Muslimopponents of the Child Marriage Restraint Act; the original wordingof early drafts of the bill proposed that Shariat law replace all otherlaws currently governing Indian Muslims, opening up a possibility forMuslims to exempt themselves from Act XIX of 1929.53

Both supporters and opponents of the bill referred to the fact thatits provisions presented Muslim law as distinctly religious in nature.Responding to a government request for opinions on the bill, theDeputy Commissioner of Akola, Central Provinces, questioned thewisdom of a measure that enforced the Shariat as an immutable

51 David Gilmartin, ‘Kinship, Women and Politics’, see also footnote 12, above.52 From the Statement of Objects and Reasons in support of the Shariat Application

Act 1937, cited in Janaki Nair, Women and Law in Colonial India: a Social History (Kalifor Women, Delhi, 1996), p. 193.

53 The Government of India insisted that this reference to ‘law’ be altered beforethe bill was enacted, so that, in the end, the measure affected only customary practiceand not statute. See extract from Legislative Assembly Debates, Vol. V., no. 11,16 September, 1937, pp. 9–13. (NAI) GOI Home Department F.28/34/1938—Judicial.




legal system that could not be adapted and developed by legislativeintervention. ‘However excellent a law the Shariat might have been inthe past and however excellent it might be even today’, he argued, ‘itcannot be said that nothing superior to it, or nothing more satisfactorythan it, can be evolved in the march of human progress’. Yet for manyother Muslim officials and lawyers interviewed by the government,this was one of the key reasons to support the bill. Mr K. M. Akram,a district and session pleader from the Central Provinces, supportedthe proposed changes to Muslim women’s rights, but also praised themanner in which the Bill reaffirmed the distinctly religious boundariesof Muslim law and its autonomy from secular statute.54 The MuslimChambers of Commerce in Calcutta echoed this view, arguing thatit would improve women’s rights and would also consolidate Muslim,rather than colonial, authority over property, including waqf trusts.55

Framed in terms of religion, the bill also triggered debate aboutthe position of minority and convert Muslim communities, such as theMemons and Mappilas, who were still governed according to customand more ‘Hindu-like’ legal systems.56 Mr M. J. Merchant, a joint sub-judge in Dhulia in the Bombay Presidency, agreed with the supportersof the bill that ‘A true Moslem must follow Shariat in all his actions’.But went on to argue that,

all Moslems are not true Moslems. Some of them accept only vital principlesof Islam yet are Moslems. Why should they be forced by an enactment toaccept other principles which they are not prepared to follow and which arenot among the fundamental principles which a person has to accept to becomea Moslem?

He was supported in this view by his colleague, an unnamed districtjudge from West Kandesh, also in Dhulia, who called for a distinctionto be made between Islam as religion and Islam as a legal system.‘It is possible to have one without the other’, he argued, ‘as isdemonstrated by many communities in India which profess Islam’.57

Muslim supporters of the bill strongly refuted these arguments about

54 Précis of opinions on the Moslem Personal Law (Shariat) Application Bill—Paper I (NAI) GOI Home Department F.28/34/1938—Judicial.

55 See also views of Mohamad A. D. Arshad, Revenue Assistant in D. G. KhanDistrict, Punjab, Précis of opinions on the Moslem Personal Law (Shariat) ApplicationBill—Paper III; Ibid.

56 See the opinion of the Commissioner, Northern Division, Dhulia, BombayPresidency, in Précis of opinions on the Moslem Personal Law (Shariat) ApplicationBill—Paper II, Ibid.

57 Paper II, Ibid.




difference amongst India’s Muslims. Indeed, the Anjuman SabileIslamia of Gauhati, Assam, charged colonial courts with dividing theMuslim community by ‘enforcing’ custom upon certain groups andstrongly supported the unifying element of the bill.58

The successful enactment of the bill owed much to the interventionof Mohammed Ali Jinnah, who only entered the debate during itsfinal stages. While the select committee that considered it over thesummer of 1937 resolved problems of wording, confusion remainedabout the way in which the measures would be implemented. Seekingto assert their own legislative autonomy, the Congress-dominatedprovincial assemblies put pressure on the Government of India toallow provinces to opt into the provisions set out by the bill. Keento prevent this attempt to build a single Muslim community frombecoming a measure that would augment regional difference betweenIndian Muslims, Jinnah stepped in. In September 1937 he proposed tomake it compulsory for all Indian Muslims to be governed by Shariatlaw in terms of marriage, mehr, intestate succession and waqf law only.Muslims could continue to adhere to customary law in relation tointestate succession if they wished, but section 3 of the bill permittedthem to sign a declaration that committed themselves and futuregenerations to following the Shariat in this area of law also.59 Theother aspect of succession law to be left outside the purview of thebill was access to agricultural land, reflecting the separation of federaland provincial subjects under the 1935 Government of India Act. Thisconstitutional necessity made it much easier for powerful landownersin Bengal and Punjab to accept the Shariat Bill, the passage of whichseemed to reinforce a notion of a single, coherent Muslim communityin India which, in favouring women’s rights, was progressive in itsoutlook, but was fundamentally underpinned by religious identity andscriptural authority.

Deshmukh’s Hindu Rights to Property Bill seemed to mirror theShariat Application Act in that it set out to provide a comprehensive,codified set of property laws for Hindu women, that would bring intogreater alignment regional customs and the practices of differentschools of Hindu law. As with the private members bills discussed inthe 1920s, at the heart of Deshmukh’s Bill was a notion of family based

58 Paper I, Ibid.59 Explanatory summary by Robert F. Mudie, Government of India, Home

department, 11 September, 1937, (NAI) GOI Home Department, JudicialF.36/17/1935.




on the conjugal unit and power of the husband, not the coparcenary andthe karta. The most radical reform introduced under the Bill was theinclusion of a man’s widow and daughter in the list of heirs to succeedto his property, including his share in the family coparcenary.60 It alsorendered a woman’s share in this property absolute, rather than forthe duration of her lifetime.

While there was much general support for the main principles ofDeshmukh’s Bill, many legislators objected to certain aspects of itsprovisions. Officials in northern India felt that the proposals went toofar in destroying the structure of the joint family, leaving women ina better financial position than Hindu men.61 Similar objections wereraised in the discussions of the select committee and the bill was quiteradically redrafted as a result. New clauses were added highlightingdifferences between the Mitakshara and Dayabhaga schools of law andany reference to the rights of the daughter was removed. The bill wasfinally enacted, in this redrafted form, in April 1937.

Differences in the regional High Courts’ interpretations of theprovisions of Deshmukh’s Act created further complication. TheShariat Act had been worded in such a way as to avoid this kindof confusion. There was no definition or detail of what constitutedShariat law in the provisions of the Shariat Application Act. Indeed,its supporters shied away from any reference to or engagement withthe different schools or system of Muslim law, presenting Shariat lawas a coherent system, the acceptance of which was understood to beclosely bound up with good Islamic practice.62 The act simply listed theareas of law to which Indian Muslims were to be subject, giving Muslimjurists considerable power and autonomy to interpret what this in factentailed. Rather than resolve or eradicate different opinions betweenMuslim jurists and scholars, in presenting Shariat law as a clear and

60 This would result in the gradual phasing out of the all-male coparcenary anda move to a situation in which property remained in the hands of a more nuclearfamily structure. Many representatives questioned this when the bill was circulatedfor opinion, some of them wondering whether this was a result of poor wording ofthe bill’s provisions. See for example the opinions of the Governor of Bombay andMr Justice Munroe of Punjab ‘Précis of opinions on the Hindu Women’s Rights toProperty Bill’. (NAI) GOI Home Department, Judicial F.28/25/1938.

61 Note from the Government of the United Provinces to the Secretary of theGovernment of India, Legislative Department, 15 January, 1935. (NAI) GOI HomeDepartment, Judicial F.28/25/1938.

62 This point was raised by Khan Bahadur M. Sehamnad Sahib Bahadur, MLCof Madras in Précis of opinions on the Moslem Personal Law (Shariat) ApplicationBill—Paper I (NAI) GOI Home Department—Judicial F.28/34/1938.




religious code of law, the act moved discussions of these differencesfrom the public sphere to a more discrete field of inter-communitydialogue.

Hindu law had no comparable code or legal system on whichDeshmukh could draw. His proposal was framed in terms of statutenot religious precepts and, as such, was more open to dispute andlegal revision within the legislature. Indeed, the act was amended in1938 in order to set out more clearly the order of succession.63 Butdiscussions about Hindu widows’ rights and Deshmukh’s measurescontinued nonetheless.

Whereas the Shariat Act had provided a means of removing intra-Muslim debate about family and religious practice from the legislatureand projecting an image of community solidarity, Deshmukh’s Actseemed to open up new divisions and differences between Hindurepresentatives. Though Deshmukh and his supporters argued thattheir proposals did not radically alter Hindu law and were inconsonance with ‘Hindu ideas and sentiments’,64 many of theiropponents disagreed.65 Unable to refer to a clear and coherentreligious code, like the view of Shariat law presented in the ShariatAct, supporters of Deshmukh’s Act framed their arguments morein relation to social justice and improving the position of womenrather than to religious tradition. These arguments also generatedopposition, even between those who supported reform; Bengalirepresentatives argued that they should be exempt from some socialreform measures because of the more progressive nature of Dayabhagalaw, which did not follow the coparcenary system.66 By the end of 1939a Hindu Law of Inheritance (Amendment) Bill, a Hindu Women’sProperty Bill, a Hindu Women’s Estate Bill and a Hindu MarriedWomen’s Right to Separate Residence and Maintenance Bill along

63 The Hindu Women’s Rights to Property (Amendment) Act, (Act XI of 1938).(NAI) GOI Home Department F.364/1937—Judicial.

64 Statement of object of reasons from a Bill to amend the Hindu Women’s Rightto Property Act, 1937, introduced by Mr G. S. Motilal in July 1938. (NAI) GOI HomeDepartment—Judicial F.28/13/1938.

65 In a summary of official opinion on G. S. Motilal’s 1938 bill to amend the HinduWomen’s Right to Property Act, a member of the Government of India explainedthat the main criticism of the measure was that, ‘The Bill is fundamentally opposedto the principles of Hindu Law’. Note by Secretary to the Government of India,Home Department, 22 February, 1939. (NAI) GOI Home Department—Judicial,F.28/13/1938.

66 Monmayee Basu, Hindu Women and Marriage Law (Oxford University Press, Delhi,2004), pp. 127–133.




with three proposed revisions to the amended 1938 Hindu Women’sProperty Act were awaiting discussion in the central legislature.67

It was this backlog of time-consuming legislation that prompted theGovernment of India to form a Hindu Law Committee. Established inJanuary 1941, the Committee was ordered to look into and resolvethe complications surrounding Hindu women’s property rights inthe proposed bills. After six months of consultation, the Committeeconcluded that it was legislators’ piecemeal approach to law reformthat was the major source of legal confusion and called on thegovernment to back a more comprehensive project to codify andreform the wider body of Hindu law68—a Hindu answer to the ShariatAct. The Government consented to this proposal and, over the nextsix years, the Hindu Law Committee worked to draw up a HinduCode Bill that was introduced to the central legislature on 11 April,1947, only months before independence. Strong support for the CodeBill project, from legislators, but particularly from within the Nehrugovernment,69 meant that the measure was revived soon after thetransfer of power, before the new constitution had even been drawnup. With political and regional factions vying for dominance in thenew nation-state, the rifts and differences regarding the directionin which Hindu law reform should proceed did not simply disappearwith independence. Rather, the Code Bill was drawn into much widerdebates about citizenship and the framing of constitutional rights.

For Muslim representatives, independence and partition madethe protection of a coherent Muslim identity and autonomy fromthe Hindu dominated state an even more pressing concern. Asdebates about Hindu law were drawn into wider discussions aboutstate-building, Indian Muslim leaders sought assurances that theircommunity would be allowed to follow their ‘religious’ practices,

67 Hindu Law Committee ‘Report of the Hindu Law Committee’ (June, 1941),Appendix VI. (IOR) V/26/100/16.

68 Ibid, p. 10.69 The revival of the Hindu Code Bill after 1947 has been seen as the result of

Jawaharlal Nehru and B. R. Ambedkar’s personal commitment to social reform. LotikaSarkar, ‘Jawaharlal Nehru and the Hindu Code Bill’ in B. R. Nanda (ed.), Indian Women:from Purdah to Modernity (Vikas, New Delhi, 1990), pp. 87–98; Reba Som, ‘JawaharlalNehru and the Hindu Code Bill: a Victory of Symbol over Substance’, Modern AsianStudies vol. 28, no. 1, (1994), pp. 165–195; Madhu Kishwar, ‘Codified Hindu Law:Myth and reality’, Economic and Political Weekly, vol. XXIX, no. 33, (13 August, 1994),pp. 2145–2161, especially pp. 2145–2146.




including their very recently acquired ‘traditional’ system of law.70 Inagreeing to uphold the autonomy of the Muslim community the newIndian government was not creating new differences between Hinduand Muslim citizens’ relationship to civil legal structures, but werecementing a difference that had been developing for several decadesprior to 1947.

Conclusion

Though they were framed in secular, universal terms, theFundamental Rights enacted as part of the 1950 Constitution, heldvery different appeal for Hindu and Muslim Indians. Colonial jurists’conviction that the joint family formed the mainstay of Hindu domesticand legal life meant that the liberal language of rights employedin the constitution appealed to the interests of propertied Hindurepresentatives in a way that it did not to their Muslim counterparts.This is not to argue that Indian Muslims could not accept or relate tonotions of individual rights or the kind of rights framework espousedby Hindu legislators. The notion of the rights-bearing individualformed the basis of colonial Muslim law. Indeed, for many influentialMuslim men it was the emphasis placed on individual rights in colonialcourts that was problematic. The social and economic, and from 1919onwards, political pressures shaping late-colonial life in India meantthat many Muslim reformers were interested in claims about collectiveidentity and religious practice.

This difference in the stance of Hindu and Muslim reformerstowards claims about religion reflected colonial constructions ofreligious personal law. The more secular, universalizing language ofHindu legislators’ calls for property law reform was not the resultof cultural factors—these legislators showed no sign of being moretolerant in favouring secularization than their Muslim counterparts.71

In framing their arguments in terms of religious authenticity, Muslimreformers were responding to colonial jurists’ preoccupation with

70 Jawaharlal Nehru to Mohammad Ismail Khan, Muslim League representative inthe Constituent Assembly, 30 December, 1948, Selected Works of Jawaharlal Nehru,(2nd series), Vol. 9, S. Gopal (ed.) (Jawaharlal Nehru Memorial Fund: OxfordUniversity Press, New Delhi, circa. 1990), pp. 317–318.

71 Eleanor Newbigin, ‘The Codification of Personal Law and Secular Citizenship:Revisiting the History of Law Reform in Late Colonial India’, Indian Economic andSocial History Review, vol. 46, no. 1 (2009), pp. 83–104.




textual sources and the primacy of scriptural authority over custom.The more nebulous textual basis of the colonial Hindu legal systemmeant that Hindu reformers lacked recourse to similar argumentsabout ‘correct’ religious practice. As a result, Hindu reformerscritiqued colonial accounts of social evolution and the historicaldevelopment of Hindu law, arguments which necessarily drew on amore secular discursive framework. Contesting colonial narrativesabout the historical development of Indian society, Hindu reformers’arguments often appeared to be sympathetic to liberal notions ofindividual rights. For Muslims, however, the emphasis on religiousidentity and legal autonomy in law reform debates was much lesscompatible with a liberal individualism, freed from all other ascriptiveidentities.

Against the backdrop of constitutional reform and devolution, thesediscursive differences had important implications for the relationshipbetween the state and Hindu and Muslim representatives. The more‘secular’ basis of Hindu reformers’ claims made them more dependenton, and therefore brought them into closer alliance with, the structuresof civil power and apparatus of the state. For Muslims, however,law reforms granted greater power and autonomy to extra-stateauthorities—to Muslim religious clerics and jurists. This division wasgreatly exacerbated, though not created, by the communal politicsof partition, which gave Indian Hindus a large popular majority anddominance over the independent state structure. Muslim citizenshipin post-colonial India has come increasingly to be defined by thistension between claims to religious autonomy and civil rights.

Though the debates about personal law reform were by no meansthe only intellectual well-spring for Indian notions of liberal rights,it seems that they hold an important legacy for understandingthe operation of citizenship in post-colonial India. Post-colonialgovernance has been crucial in shaping the ‘application’ and reality ofthe citizenship set out in the Fundamental Rights. But, in focusing tooheavily on application, academics have failed to question assumptionsabout the supposed neutrality, or secularity, of this type of liberalcitizenship. This is not to argue that the liberal-secular project was, oris, destined to fail in India. Rather it is a plea, to academics and policy-makers alike, to acknowledge that 15 August, 1947 did not mark atabula rasa in Indians’ relationship with the state, but that people’sviews of and relationship to notions of citizenship were deeply shapedby pre-existing debates and social structures.


Personal Law and Citizenship in India's Transition to Independence

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