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The codification of personal law

and secular citizenship: Revisiting

the history of law reform in late

colonial India

Eleanor Newbigin

Trinity College, University of Cambridge

Recent debates about personal law and a uniform civil code in India have seen both Hindu

and Muslim leaders insist on the ‘religious’ status of Muslim law vis-à-vis a more secular or

‘civil’ Hindu legal system. This article argues that such claims obscure very important simi-

larities in the development and functioning of these legal systems. Tracing the origins of the

current debate to late nineteenth and early twentieth-century debates about law reform, it

argues that the systems of personal law in operation in India today are the outcome of late

colonial attempts by Hindu and Muslim male reformers to alter their legal systems in ways

that served their own interests. The ways in which they succeeded in securing these ends were

very different; colonial constructions of Hindu and Muslim religious practices, and later par-

tition, shaped the context within which male reformers sought to assert their claims, before

the state and their own religious communities. Thus, far from marking an inherent difference

between Hindu and Muslim law, claims about the ‘civil’ or ‘religious’ status of the legal sys-

tems serve in both cases to underpin particular forms of patriarchal authority and gender

inequality.

The relationship between religion-based personal law and Indian secularism hasbeen the focus of much attention in contemporary discussions about the healthand future of secularism in the subcontinent. Seen in the 1950s as a symbol of thenation’s secular ideals, Article 44 of the Indian Constitution, pledging the state to‘endeavour to secure for the citizens a uniform civil code throughout the territory

The Indian Economic and Social History Review, 46, 1 (2009): 83–104

SAGE Los Angeles/London/New Delhi/Singapore/Washington DC

DOI: 10.1177/001946460804600105

Acknowledgement: I am grateful to Humeira Iqtidar and fellow contributors of this special edition

for their feedback and comments on previous drafts of this article.



84 / ELEANOR NEWBIGIN


of India’, has become a battleground between Muslim leaders and Hindu nation-

alists. Since the 1985 Shah Bano case in particular, Muslim leaders have argued

that preservation and protection of their personal law is necessary for the operation

of secularism in India. The religious basis of Muslim personal law, they argue,

means that any pressure to alter this system is a violation of the Muslim commu-

nity’s religious freedoms and rights to equal treatment.

The Hindu right, on the other hand, argue that it is the state’s preservation of

Muslim law that undermines Indian secularism. Upholding Muslim claims about

the ‘religious’ status of their legal system, Hindu nationalists maintain that their

own personal law is, in contrast, un-religious. This difference between Hindu and

Muslim personal law is presented as primary evidence of the failure of Indian

secularism, and of the state’s long-term drive to protect Muslim minorities while

persecuting the majority, Hindu community: the Nehruvian government had been

prepared to fight orthodox opposition to Hindu law reform in the 1950s, but had

opposed calls for similar state intervention in Muslim law. This ‘pseudo-secularist’

stance towards personal law reform, it is argued, has created a legacy of suffering

for both Hindu and Muslim Indians. Pointing in particular to the prohibition of

bigamy for Hindus, but the acceptance of multiple marriages under Muslim law,

Hindu nationalists argue that the 1950 reforms have stripped Hindu, though not

Muslim, men of their patriarchal power. At the same time, it is argued that,

...Jawaharlal Nehru, denied Muslims equal citizenship in free India by cynically

refusing to weld a tortured society into a harmonious whole, and perpetuated

communal separatism to serve his votebank politics ... a separate civil law for

Muslims ... gave the ulema disproportionate power over the community and

oppressed ordinary Muslims. The Muslim sense of being backward and disad-

vantaged in independent India has its genesis in this abandonment by the secular

state, even though Muslims are not aware of this deeper reality.1

A uniform civil code is thus seen as crucial for religious integration, the lack

of which is seen to undermine India’s ‘true’ secular credentials. Yet, while Hindu

nationalists are supportive of the idea that a uniform civil code should draw on

the best parts of Islamic legal tradition,2 their own view of contemporary Hindu

law as civil, rather than religious, makes it easy to see their support for such a

code as an attempt to ‘Hinduise’ Muslim practices:

1 Sandhya Jain, ‘Uniform personal law to define nationhood’, Organiser, Vol. LVII (29), 29 January

2006, p.16.2 ‘If the [Muslim] community realizes that its best interests are served in a uniform civil code,

then a nation-wide exercise could be undertaken to revise and improve the UCC by extending positive

aspects from the Islamic tradition to other groups’ (ibid.).



The codification of personal law and secular citizenship / 85


... it should be remembered that the Hindu Code Bill is not a Hindu religiouslaw. It is not based on the Hindu scriptures .... If it can be made applicable tothe followers of other religions like Jain, Buddha and Sikh, why can’t it be ap-plied to Muslims and Christians?3 If they have an alergy [sic] for the name‘Hindu’ let it be designated as ‘Bharatiya Civil Law’.4

Hindu law is presented as a fluid and dynamic system that has already embraced‘secularisation’ and made a transition to civil law, while religious Islamic andChristian law have not. Within the ‘secularisation’ thesis and common perceptionsof society’s teleological move away from religious practice, ‘civil’ Hindu law canbe presented as more modern and even more tolerant than ‘religious’ Muslimlaw. Wider academic and political debates about Islamic resurgence and a ‘clashof civilisations’ serve only to reinforce the Hindu right’s dichotomous imagery;Muslim personal law is stagnant and primitive like the traditionalist and anti-liberal culture of the peoples it governs, while in embracing the language of secular-ism, the Hindu right seek to position their own cultural norms as allied with themodern values of Western civilisation.5

This article contests this view, arguing that claims about the ‘civil’ and ‘reli-gious’ status of Hindu and Muslim laws obscure very real and important similaritiesbetween the two systems. While it was events in the mid-1980s that placed thereligious status of Muslim personal law at the centre of debates about Indiansecularism, the roots of this issue can be found in the early decades of the twentiethcentury. The late colonial period witnessed much debate about both Hindu andMuslim personal law. In both cases, the reform drive was led by groups of men,seeking to improve their rights. Many previous studies of this period have arguedthat women’s organisations were the primary agents in the promotion of personallaw reform.6 While it is undoubtedly true that Indian women played an importantrole in calling for reform, this article will show that they were not the only, andcertainly not the most influential, parties interested in law reform in the inter-waryears. The role of women reformers is not dealt with in this article, which willsketch instead the framework of powerful male interests that placed important

3 The Hindu Acts of the 1950s contained a very broad definition of the term Hindu, covering all

the religious groupings understood to be ‘indigenous’ to the subcontinent. For the consequences of

this decision, see Galanter ‘Hinduism, secularism and the Indian Judiciary’.4 M.G. Vaidya, ‘Uniform Civil Code: A Constitutional Imperative’, Organiser, Vol. LV(32),

22 February 2004, p. 12.5 In the original outline of his clash of civilisations argument, Huntington devotes only one para-

graph to India, seeing recent events as a clash between Islamic and Hindu cultures (Huntington, ‘The

Clash of Civilizations?’ pp. 33–34). This view of an inevitable clash between Muslims and Hindus has

long been propagated by the Hindu right, but it is interesting to note the ‘secular’ language that has

been adopted by the latter since the late 1980s and 1990s.6 Basu and Ray, Women’s Struggle, pp. 64–8; Sarkar, ‘Jawaharlal Nehru and the Hindu Code

Bill’; Som, ‘Jawaharlal Nehru and the Hindu Code Bill’.





limits on the reform campaigns led by women. This argument is important in ex-plaining why the independent Indian state has been far less successful in achievinggender equality than had been expected, following women’s political participationin the nationalist movement.7

Though they came from different social groups, the men who supported Hinduand Muslim law reform in this period were often responding to quite similar eco-nomic and political pressures. Indeed, it will be shown that far from opposing lawreform, Muslim leaders were in many ways at the forefront of this drive, andoften served as a source of inspiration for Hindu reformers. What separated Hinduand Muslim reformers were the means available to pursue their agendas. As willbe demonstrated, colonial constructions of Muslim law and religious identityencouraged Muslim men to present their personal law as a religious space, auto-nomous from the ‘neutral’ state, and over which only they could exercise authority.Lacking similar options in terms of the colonial construction of Hindu law, Hindumen were compelled to use legislative power to reform their legal system, a processwhich, particularly after independence, brought them into stronger associationwith civil power. Overall, this article will show that, rather than highlighting funda-mental differences between Hindu and Muslim personal law, the labelling of thesesystems as ‘civil’ and ‘religious’ respectively belies very important similarities inthe patriarchal structure and function of personal law today.

Personal Law and Colonial Rule

The operation of Hindu and Muslim personal law under colonial rule was crucialin shaping Indian demands for personal law reform, and in structuring the waysin which Hindu and Muslim representatives worked to secure these changes. Fromthe outset of British rule, colonial officials had sought to govern Indians in accord-ance with existing practices and traditions. Yet, such a policy also entailed estab-lishing what these indigenous customs were, an act which, as many historianshave demonstrated, often served to transform both the status and practice of these‘traditions’.8 Law reforms in the 1860s were one of the most comprehensive stepstaken by British officials to formalise the sphere of ‘personal law’, the legal systemgoverning the civil practices of Indian subjects. Replacing ‘unreliable’ Hindu andMuslim legal advisors with a series of textual sources, the reforms did much toformalise the structure and distinctively religious basis of personal law.9

The effect of this was quite different on Muslim and Hindu personal law. Inestablishing their control in Bengal, the Company administrators’ interaction withMuslim law had been shaped by an underlying assumption that there existed a

7 Forbes, ‘The politics of respectability’.8 Gilmartin, ‘Kinship, Women and Politics’; Oldenberg, Dowry Murder.9 This process had of course begun much earlier; see Derrett, Religion, Law and the State in India,

pp. 237–69.





clear, doctrinal Islamic code of law. Thus, the colonial state enshrined and ‘pro-tected’ an Islamic legal system that was far more rigid and much changed fromthe laws of the pre-British Mughal state. The reforms of the 1860s brought a no-minal end to the system of Anglo–Muslim law that had been applied under theCompany rule, establishing the ‘traditional’ Koranic shariat law—a system whichwas in fact the outcome of the hybrid Company legal system—as the basis of thelaws by which Muslim Indian subjects would be governed.10 Regional and castecustoms continued to inform certain areas of this new personal law, but in empha-sising the religious nature of the legal system, the reforms sought to present Muslimlaw as a clear-cut and clearly defined entity, which could be easily applied andhard to dispute.11 Koranic succession practices, under which property was dividedamongst a man’s children, were particularly praised12 and became one of the centralfeatures defining Muslim family practices against those of Hindus: Muslim familieswere considered to comprise of property-owning individuals, whereas the naturalcondition of a Hindu family was assumed to be ‘joint’.13

The size and diversity of the many Hindu communities in India meant that theexact operation of this joint structure varied from region to region, and betweenthe schools of Hindu law that had gained a more standardised form under Britishrule.14 Under both Mitakshara and Dayabhaga, the two dominant schools of Hindulaw, a Hindu man was entitled to hold self-acquired properties individually.15

Under Mitakshara law, the school of law to which the majority of Hindus adhered,the joint family unit was known as a coparcenary and comprised of up to fourgenerations of male relatives, with women barred from membership. There wereno fixed individual shares within the coparcenary, which operated as a trust-likeunit. However, the unit was managed, on behalf of others, by the eldest mem-ber, usually the father, who was known as a karta. Thus, though younger men didenjoy claims to property, their capacity to exercise this right was limited by thevery hierarchical structure of power within the family. Within the Mitaksharacoparcenary, the elder patriarch dominated over both women and younger men.

These changes in the legal conception of the Hindu and Muslim family didnot bring about sweeping changes in terms of domestic arrangements, but theydid set out the legal framework within which specific family disputes would bemediated if they were taken to court. As Mytheli Sreenivas has shown, in Madrasat least, many more domestic disputes did seem to find their way to the colonial

10 Kozlowski, Muslim Endowments, pp. 128–31; Kugle, Framed, Blamed and Renamed, especially,

pp. 269–80.11 Kugle, pp. 300–301.12 Powers, ‘Orientalism, Colonialism, and Legal History’, p. 556.13 Carroll, ‘Daughter’s Rights of Inheritance in India’, p. 794.14 Cohn, Colonialism and its Forms of Knowledge, pp. 71–75.15 For a full description of succession practices and rights under the schools of Hindu law, see

Agarwal A Field of One’s Own, pp. 85–91.





courts in the decades following the law reforms.16 Growing tension in this period,between professional and mercantile elites on the one hand and agrarian elites onthe other, served to put pressure on the conception of the ‘joint’ Hindu familyand the structure of the coparcenary set out in Mitakshara law, which prevailed inthe southern region. The Mitakshara coparcenary and its system of joint, inter-generational property ownership structured the ways in which the agrarian elites,on whom British governance depended, maintained their authority, allowing themto block intervention by moneylenders or other non-family interests seeking toassert control over their land and wealth.17 For Indian merchants competing withEuropean capital, this focus on joint rights and its effect of locking away capitalin land created considerable difficulties. This is not to suggest that these groupsshould be seen as discrete interests in competition with one another. The admin-istrative changes accompanying the transition to crown rule created opportunitiesfor sons within landed families to enter professional careers.18 Economically andgeographically independent from their wider families, many such Hindu menopposed the emphasis on joint family living and collective property ownership inthe emerging Anglo–Hindu law, feeling that it harmed their economic and socialstatus and mobility.19

The growing influence of unstable market forces and family disputes overproperty also sparked debate about Anglo–Muslim law in the late nineteenth andearly twentieth centuries. While it was the lack of individual property rights thatcreated tension amongst Hindu men, the colonial state’s rigid application of Koranicsuccession laws made it difficult for many wealthy Muslims to protect the integrityof large family estates for future generations.20 British judges rejected argumentssuggesting that waqf law, a system of endowment that had developed in Islamicsocieties to deal with these difficulties, could be used to endow not only religiousinstitutions, but also family members.21 As a result, it could be very difficult toprotect a family estate against fragmentation or to prevent a profligate relativesquandering the estate, leaving nothing for future generations. Though it was theemerging professional and mercantile groups that were frustrated by Anglo–Hindufamily law, opposition to colonial readings of waqf practices came from wealthy

16 Sreenivas, ‘Conjugality and Capital’, p. 944, fn 11.17 Washbrook, ‘Law, State and Agrarian Society in Colonial India’, pp. 655–57.18 Misra, The Indian Middle Classes, pp. 308–12; 316–24.19 Sreenivas, ‘Conjugality and Capital’, pp. 943–44.20 This was not true of all Muslims. Certain Muslim communities, such as the Khojahs and the

Memons, were governed according to separate customary traditions; see Kozlowski, Muslim Endow-

ments, pp. 71–72. Land held by Muslim landholders in Bengal devolved according to the regulations

of the Permanent Settlement and not Muslim personal law, while landholding Muslims, designated

by the state as ‘agriculturalist’, were governed by a separate legal system, Punjabi Customary Law,

in all areas of family life. Powers, ‘Orientalism, Colonialism, and Legal History’, pp. 554–60.21 Kugle, Framed, Blamed and Renamed, pp. 286–94.





landed or merchant Muslims, from communities that had long connected them-selves with the power of the colonial and the Mughal state.22

By the early twentieth century, therefore, there were, amongst Hindus andMuslims, politically influential men interested in law reform. The law reforms ofthe 1860s had imposed more rigid interpretations of family practices at preciselythe moment when wider economic and social changes were placing new pressureson the domestic unit.23 Yet, while they frustrated certain economic interests, thereforms had also done much to create more concrete conceptions of Hindu andMuslim religious identity. Just as they shaped the distribution of resources withinthe Hindu and Muslim family, these religious identities also served to mediateIndian power and representation before the state. The potency of these identitieswas only to increase in the twentieth century as constitutional reform presented agrowing number of Indians with opportunities to claim power.

Political Representation and Women’s Rights:

Personal Law Reform in Late Colonial India

The emergence of representative institutions and the expansion of Indian politicalparticipation from the late nineteenth century onwards had important implicationsfor the way in which both Muslim and Hindu reformers shaped their arguments.Indians seeking power within the new assemblies and legislatures were encouragedto present themselves as representative of as wide a group of interests as possible.The religious basis of the personal legal systems made them powerful politicaltools for the construction of a single religious community, on whose behalf Indianssought to claim the right to speak. Yet, at the same time, advocates of reform whoused their new powers to push through proposals found themselves charged withundermining the religious status of their legal system, and thus also threateningthe standing of the community it governed. As the debates continued, Hindu andMuslim reformers resorted to quite different tactics to deal with this dilemma.

In the battle to reform waqf law, the colonial state’s focus on Koranic scripturesmeant that to oppose existing regulations on the grounds that they were out ofdate or inappropriate for contemporary Indian society was to also raise questionsabout the ‘appropriateness’ for modern society of the Koran in general. In 1879,after a long campaign in which he sought to highlight the economic and socialdifficulties suffered by Muslim families under the existing legal arrangement, SirSayyid Ahmad Khan, an eminent thinker and reformer, was forced to withdrawproposals to reform waqf law following criticism within the Muslim community

that they undermined the Koranic scriptures.24 By the early twentieth century,

22 Kozlowski Muslim Endowments, pp. 81–85, 116–20.23 See Denault, ‘Partition and the Politics of the Joint Family’.24 Kozlowski, Muslim Endowments, pp. 159–62.





calls for the creation of a separate electorate for Indian Muslims made any ques-

tioning of Koranic law, one of the main symbols of Muslim unity, particularly

threatening.

Muslim lawyers were pivotal in reframing the terms of the debate about waqf

reform in this period, as they sought to criticise not the Koranic prescriptions

themselves, but rather their interpretation by British judges.25 Turning the Privy

Council’s own defence of Islamic legal ‘tradition’ on its head, lawyers such as

Amir Ali argued that a waqf made to benefit a family had always been permitted

under Muslim law, and, far from upholding ancient practice, the colonial ruling

on this matter was itself a ‘modern’ innovation or corruption of ‘true’ religious

practice. Though these arguments were made to defend the economic interests of

social groups traditionally allied to the colonial state, they also helped to construct

an image of Islamic unity, as the assertion of Muslim autonomy to ‘decide’ the

correct religious tradition won support from many religious leaders and ulama,

who were not so closely allied with the government.

Maintaining this ‘communal unity’ was particularly important to Mohammad

Ali Jinnah. The successful Bombay lawyer had, by the early twentieth century,

become well known for his political activity and involvement with the Indian Na-

tional Congress. While he was a strong advocate of Hindu–Muslim political unity,

he also believed firmly in the distinctive interests, needs and identity of the two

religious groups. On this ground, he was eventually persuaded to join the Muslim

League in 1913. Jinnah saw clearly the links between his political ambitions and

his legal practice; in the same year that he joined the League, Jinnah successfully

navigated the passage of the Mussalman Wakf Validating Act, which made a ‘family

waqf’ legitimate on the grounds that this represented a more ‘correct’ interpretation

of the Islamic legal tradition. Yet, the Act did not bring an immediate end to de-

bates. Problems with the retrospective application and administration of the new

rights prompted a flurry of further bills over the next decade.26

Opposition to reform as a corruption of tradition and true practice was also a

feature of the debates about Hindu law. In 1915, Diwan Bahadur M. Ramachandra

Rao introduced to the Madras Assembly a bill to facilitate the process of partition-

ing a coparcenary estate and to grant women absolute ownership over property

inherited from their husbands, arguing that this would improve market relations

and produce a more streamlined legal system.27 His proposals were strongly op-

posed by the powerful landed elites who benefited from the coparcenary system,

25 Ibid., pp. 153–54.26 Indeed, reform of waqf law continued after independence, too, though it was much more

concerned with waqf management than with family entitlement. Rashid, Wakf administration in India,

pp. 23–35.27 Hindu Limited Owners Bill, GOI Home Department, Judicial B Proceedings Feb. 1917, nos

251–52, NAI.





and who claimed that the joint family was the ‘traditional’ unit, not simply ofMadrasi, but of all-Indian Hindu family life.28 Hindu opponents of reform werealso critical of the attempt to use legislative authority to alter Hindu personal law,arguing that the religious status of this legal system placed it beyond the powersof the supposedly neutral colonial state.29 Though Muslim lawyers had been ableto enforce their interpretation of waqf law on the basis that it was more in keepingwith authentic Muslim practice, the nebulous nature of Hindu scriptural authorityand the many regional variations in family practices made it difficult for Hindureformers to couch their claims in similar terms. Furthermore, for much of the1920s, this debate was limited to the Madras and Bombay presidencies, areas thathad witnessed greater economic and social change under British rule than the up-country regions of the north.30 Thus, though opponents of reform presented them-selves as representatives of a singular set of Hindu traditions, law reform debateswere in fact very regionalised.

It was not until the late 1920s, following the publication of Mother India, thatHindu reformers found a way to present law reform in terms that would appeal toa wide number of Hindus. Written by Katherine Mayo, an American journalistwith strong imperial sympathies, the book’s release coincided with preparationsfor the 10-year review of constitutional arrangements promised under the 1919Government of India Act. Focusing in particular on the practice of child marriage,Mayo’s book was a sensationalist exposé of Indian sexual mores, which, sheargued, were responsible for ensuring that the subcontinent remained both sociallyand economically depressed.31 Echoing James Mill’s argument that a society’streatment of its women provides an index for its civilised status, Mother India

challenged the ability of the Indians to rule themselves at the moment when demon-strating this mattered most to the Indian representatives involved in the consti-tutional negotiations. As a result, it was condemned by Indians of all religiouscommunities and political persuasions.32 Rai Harbilas Sarda’s bill to prosecute

28 Sreenivas, ‘Conjugality and capital’, pp. 945–46.29 Memorial from S. Palaniandy Mudaliar to the Secretary to the Government of India, Law Depart-

ment Delhi, 20 Nov. 1923, GOI Home Department 788/1923, Judicial NAI.30 The absence of Bengali representatives in these debates is notable. Though it had been the

heartland of debates about social reform for much of the late eighteenth and early nineteenth centuries,

attitudes towards reform in the eastern presidency began to harden in the later 1800s; see Sarkar,

Hindu Wife, Hindu Nation. In addition, Bengal’s communal situation had, by the 1920s, come to

dominate Bengali politics, leaving little room for the consideration of law reform. See Chatterji,

Bengal Divided.31 Sinha, Katherine Mayo, Selections from Mother India, pp. 78–79.32 Rabindranath Tagore had letters condemning Mayo published in both the Manchester Guardian

and Times of India, while Lala Lajpat Rai wrote a series of 12 articles for the Bombay Chronicle.

Indians living in America and Britain also held public demonstrations and issued written protests

against Mayo and Mother India (IOR L/P&J/12/322). See also Sinha, Specters of Mother India,

pp. 115–20.





those involved with child marriage became the primary focus of much of the anti-

Mayo sentiment. Introduced to the Central Legislature shortly before the publica-

tion of Mother India, Indian representatives flocked to support it and to demonstrate

to Mayo and the rest of the world that it was Indians, and not the colonial admin-

istration, who were the prime agent of social reform in India.33 Placing the Indian

family and its practices in a new political light, these events created opportunities,

for Hindu representatives in particular, to win greater support for personal law

reform.

In June 1929, as the Sarda agitation was in full swing, Mukundrao Ramrao

Jayakar, another Bombay advocate and a colleague of Jinnah, began to draft a Hindu

Gains of Learning Bill for introduction in the central Indian legislature.34 Up until

this point, and in keeping with the principles of the Mitakshara coparcenary, a

son’s earnings as a result of a special education, interpreted by the courts to mean

Western or English medium, reverted to the joint family to be shared by members

of the coparcenary. Jayakar’s bill set out to make it the sole, individual property

of the earner.

Jayakar had worked alongside Jinnah both in the Bombay High Court and the

Congress, and the two men had somewhat similar ideas about communal relations.

Like Jinnah, Jayakar viewed Indian society as comprising of separate Muslim

and Hindu communities, the different needs of which should be respected and

represented separately, but whose leaders could also work together: Jinnah and

Jayakar had played a prominent role in encouraging an entente between the Indian

National Congress (INC) and the Muslim League during their overlapping sessions

in Bombay in 1909.35

Building on many of the arguments about women’s rights and social progress

that had risen from the anti-Mayo and pro-Sarda campaigns, Jayakar presented

his bill as vital for improving the position of Hindu women. Women’s inability to

succeed to property held by the Mitakshara coparcenary unit left widows exposed

to poverty and a life of destitution. His bill would remedy this situation by securing

a man’s earnings as his individual property, which his wife was eligible to inherit.

A Hindu woman’s access to property would thus improve under the bill, though

only on the basis of her married status. The reforms would also secure important

economic benefits, not simply for individual Hindu men, Jayakar was keen to

point out, but for the wider ‘Hindu community’. Implying that the Muslim commu-

nity was not hindered in the same way, Jayakar argued that joint-family ownership

undermined entrepreneurial drive and easy access to credit, thereby leaving the

33 Sinha, ‘The Lineage of the “India” Modern’.34 This was based on a Gains of Science Bill proposed by Sir Bhashyam Iyengar to the Madras

Legislature in 1891. Sreenivas, ‘Conjugality and Capital’, p. 944.35 Jayakar, The Story of My Life, Vol. I, pp. 139–40.





Hindu commercial community at a ‘serious disadvantage in modern times’. In al-

lowing for ‘speedy obtainment of credit and facility in the transferability of estates’,

the bill would allow for greater investment in the Hindu community as a whole.36

Yet, while he was keen to stress the modern benefits of these reforms, Jayakar

was also keen to assert that he was not promoting the ‘Westernisation’ of Hindu

family life. Jayakar argued that, rather than undermining traditional structures of

Hindu law and imposing foreign views, the proposals in his bill served to move

personal law back to the more liberal, progressive character it had had before

British rule. Far from civilising the subcontinent, Jayakar maintained that colonial

rule had rendered Indian, and specifically Hindu, society stagnant and fossilised.

Law reform was thus not just preferable, but essential, though only if it was under-

taken by someone familiar with the true spirit of Hindu law. These claims drew

on arguments about Indian’s fitness for self-rule, raised in response to Mayo’s

book. It was those who understood and could revive the ‘true’, pre-colonial law

who were the most fit to govern the Hindu community. As a successful barrister

and Sanskrit scholar, it was clear that Jayakar considered himself well-versed in

this ‘true’ Hindu law. The Hindu Gains of Learning Bill was thus not only a means

to secure the economic and domestic power of the male Hindu commercial classes,

but also sought to strengthen their political power and leadership over the Hindu

community at large.

Jayakar’s aims and arguments in pushing through the Hindu Gains of Learning

Act echoed those of Jinnah and his colleagues in the earlier debates about waqf

law. Both Jayakar’s Act and the waqf cases sought to alter existing legal structures

in order to facilitate the economic interests of influential groups of men. To secure

this aim, Muslim lawyers had contested the authenticity of colonial jurists’ inter-

pretation of religious practices. They had asserted the ‘religious’ status of Muslim

personal law in order to assert the autonomy of Muslims, rather than British judges,

to manage its administration. Jayakar sought to do exactly the same thing. However,

greater ambiguity about the textual source of Hindu law made it much harder for

him to assert the ‘religious’ autonomy of Hindu law, and made him much more

dependent on legislative powers than his Muslim counterparts. The aim of the

Gains of Learning Bill was to assert the rights of wealthy, professional and mer-

cantile men, not British judges or Hindu religious leaders, to shape personal law.

Jayakar was in no way trying to make Hindu law more democratic or to open it up

to the state’s secular powers. Instead, his bill was an attempt to justify the use of

‘civil’ legislative reform to assert the autonomy of professional men, rather than

the older patriarchs or the karta, over the Hindu family.

36 Original draft, ‘Statement of Objects and Reasons: Hindu Gains of Learning Bill’, undated,

Jayakar Papers, F. 636, NAI.





Political Power and Codified Law:

Reform Debates in the Later 1930s

Legislators’ interest in the nexus between arguments about fitness to rule, claimsto political power, and support for law reform was only to grow following the re-vision of the Indian franchise regulations and the passage of the 1935 Governmentof India Act. The Act brought a greater number of Indians from a broader range ofbackgrounds into contact with the increasingly powerful legislatures. Provincialautonomy under the new constitution served in many ways to redirect representa-tives’ focus towards the central political stage, the final bastion of colonial author-ity. As legislators competed to present themselves as spokesmen for as wide aconstituency as possible, personal law become a crucial tool for claims about theexistence of single and united religious communities.

Together with demands for separate electorates, claims about traditional familypractices and waqf law had been significant in constructing an image of all-IndiaMuslim solidarity and community. Yet, the outcome of the 1937 elections, thefirst to be held under the revised Government of India Act, did much to underminethe argument that Indian Muslims were, at the least, politically united. The MuslimLeague’s vision of Muslim unity won it much electoral support from Muslimsliving in Hindu-majority provinces. Yet, the League’s platform was of less interestto those in Muslim-majority provinces, where representatives were less able touse political mobilisation on religious grounds to secure power within the provin-cial legislature.37 In the final count, the election results in these provinces weakenednot only Jinnah’s claim to represent a single Muslim community, but also thevery notion of Muslim unity. In a bid to put the image of community back together,Jinnah looked again to personal law reform.

While the colonial courts emphatically upheld the Koranic succession laws,enforcing the division of an estate between individuals, they were willing to acceptthe dominance of regional or community customs in other legal areas. Thus, evenas the 1913 Validation Act had helped to reaffirm the conceptions held by PrivyCouncillors and British judges that shariat law was the ‘true’ Muslim law, inreality Indian Muslims remained divided in their legal practice. Hailing from thefairly small Khojah community, Jinnah himself was expected to adhere to cus-tomary, rather than Koranic practices, even in matters of succession.38 Of greatersignificance, particularly after the League’s poor electoral showing, was the dom-inance of customary law in governing the practices and property rights of Muslimsin Punjab and Bengal. In these, the biggest and most influential Muslim-majority

37 Jalal, The Sole Spokesman, Ch. 3.38 In the 1886 case of Cassamally Jairajbhai Peerbhai v. Sir Currimbhoy Ibrahim, it had been

argued that for Khojah Muslims at least, a family waqf should be permitted on grounds of customary

precedent. Though the case was lost, it may have inspired Jinnah’s argument in support of the 1913

Act. Kozlowski, Muslim endowments, pp. 151–52.





provinces, regional ‘secular’ legal systems ensured that rights to land, and thuspower, lay in the hands of the established Muslim elite. In the aftermath of the1937 elections, these customary legal systems seemed to pose a significant threatto Jinnah’s visions of an all-India Muslim community.

The passage of the 1913 Act had demonstrated the potential of a union betweenmore legal-minded Muslim politicians and the many religious leaders who hadstrong popular influence but little political power. In Punjab in particular, Jinnah’spolitics of Islamic identity had attracted religious leaders and some urban profes-sionals, even if it had failed to secure the support of the powerful landed elites.39

Jinnah’s decision, following the 1937 elections, to support a bill to eradicate Anglo–Muslim law and establish shariat law in its place, played to precisely the consti-tuency of non-elite, religious leaders.40 Echoing the arguments about waqf reformas well as Jayakar’s claims in the Gains of Learning Act debates, Jinnah maintainedthat in giving preference to custom over scriptural law, Anglo–Muslim law was acorruption of true Muslim law. Yet, in the aftermath of the Mother India episodeand the Gains of Learning Act, Jinnah was able to point to another factor to supporthis calls for law reform. Shariat law was not only religiously more authentic, butin acknowledging the right of daughters to inherit property from their fathers, theright to divorce and to maintenance, also more progressive than the current legalsystem.

The state of Muslim Women under customary law is simply disgraceful. TheMuslim women’s organisations have condemned customary law as it adverselyaffects their rights and have demanded that the Muslim Personal Law (Shariat)should be made applicable to them. The introduction of the Muslim PersonalLaw will automatically raise them to the position to which they are naturallyentitled.41

Building on the anti-Mayo agitation, the Shariat Act was a bold move to assertthe Muslim community’s claim to be fit for self-rule. The ‘disgraceful’ laws im-posed by the colonial state had hindered, rather than ‘civilised’, the Muslim com-munity. The Act would bring Indian Muslims under the legal system that was‘natural’ to them. The clear and codified nature of the shariat, together with the

idea that it was their ‘natural’ law, reinforced the League’s assertion that the Indian

Muslim community was a united and distinct entity. Reference to support from

39 Talbot, Punjab and the Raj, pp. 110–14; Gilmartin, Empire and Islam, pp. 164–69.40 Due to its implications for the power of landed elite families, the introduction of shariat law had

been an issue of much controversy in Punjab since the 1930s, following the introduction of provincial

legislation, which had received strong backing from urban Muslim leaders and provincial ’ulama,

Muslim religious leaders. See Gilmartin, Empire and Islam, pp. 169–74.41 From the statement of objects and reasons in support of the Shariat Application Act 1937, cited

in Nair, Women and Law, p. 193.





Muslim women’s organisations underlined the ‘progressive’ nature of shariat law;

however, following the enfranchisement of Indian women under the new con-

stitution,42 it was also important for Jinnah’s representative claims to speak for all

sections of the Indian Muslim community. By presenting the Act in these terms,

Jinnah implied that those Muslims who were not governed by the shariat were

both un-progressive and outside the Muslim community and its ‘natural’ practices.

In the final call, in order to win the acquiescence of the powerful Muslim landed

elite in Bengal and Punjab and thus secure as broad a consensus amongst Indian

Muslims as possible, Jinnah agreed to remove agricultural land from the purview

of the Act.43 As a result, Jinnah was able to present the Act as a powerful statement

of all-India Muslim unity, and, against the backdrop of increasing communal ten-

sion, as evidence of the separate status of a Muslim ‘nation’ in India.44

Such claims did much to galvanise the drive for Hindu law reform. While

Jayakar’s Gains of Learning Act had asserted the autonomy of educated, urban,

professional husbands from both their family and the wider Hindu community,

it had done so with regard to only one aspect of family law and property rights.

Jinnah’s apparent success in cementing a sense of legal and political unity amongst

Muslims did much to make support for law reform more acceptable for Hindu

representatives entering the legislature after the 1937 elections. The effort to secure

a measure comparable to the Shariat Act for Hindu personal law drew together

not only those from regions already interested in personal law reform, but also

Hindu representatives from the more conservative, northern provinces, and many

eager to stress the unity of an all-India Hindu community.

G.V. Deshmukh, a surgeon from Bombay with links to Jayakar, introduced a

Hindu Married Women’s Rights to Property Bill in the same year as the Shariat

Act. Providing comprehensive reform of existing property laws for Hindu women,

the measure set out to bring greater alignment between regional customs and the

practices of different legal schools. As before, without any clear scriptural basis

for Hindu law, Deshmukh sought to use legislative power and debate to impose

a new system of personal law. At the heart of the Bill was a vision of the Hindu

family based around the conjugal unit. The most radical reform introduced under

the Bill was the inclusion of the widow and daughter in the list of heirs to succeed

42 Of the 30 million Indians enfranchised by the 1935 Government of India Act, four million were

women. Singer, A Constituency Suitable for Ladies, p. 39.43 Given that agricultural land was the main source of property in the Muslim community, the Act

in fact did little to alter Muslim women’s property rights, even as it was presented as a ‘women’s’

bill. Agarwal, A Field of One’s Own, p. 230.44 Gilmartin, Empire and Islam, pp. 172–73. In so doing, the Act cemented a relationship between

shariat law and Muslim politics, thereby creating problems for future reformers who, like Sir Sayyid

Ahmad Khan in the late nineteenth century, were charged with undermining the Koran. See De,

‘Mumtaz Bibi’s Broken Heart’.





to a Hindu man’s property, including his share in the family coparcenary.45 It alsorendered their share in this property absolute, rather than limited.

The Bill met with considerable opposition, however, when it was circulatedfor opinion. While there was much sympathy for the general aims of the Bill,many of those questioned voiced concern about specific provisions. Regional dif-ferences in family customs and legal practices within existing Hindu law helpedto shape legislators’ notions of the family, and thus their attitudes to reform.46

While the measure seemed to win some support from officials and legislators inBombay, the home of Deshmukh and Jayakar, those in northern India voiced strongopposition, arguing that the bill both ‘militated against’ the Hindu joint familyand gave too much power to Hindu women, placing them in a better financialposition than men by allowing them to inherit both from their fathers as daughters,and from their husbands as widows.47 Though southern and western representativescould contemplate a radical reform of the coparcenary to secure greater individualproperty rights for Hindu men, Hindu leaders from the northern areas were not sowilling. In an effort to achieve a compromise between the various Hindu reformers,the bill was revised along more conservative lines and enacted, in its redraftedform, in April 1937 with Deshmukh’s consent.48

Yet, confusion with wording and discrepancies in the regional High Courts’interpretations of its provisions soon led to problems. As a result, an amendingact was passed a year later, though even this did not manage to resolve mattersfully, and many aspects of its provisions continued to be debated. By the end of1939, the Central Legislature was facing no less than seven private members’ billsdealing with Hindu personal law.49 Where the Shariat Act had imposed a clear,scripturally sanctioned legal Code on Indian Muslims, Deshmukh’s Act exposedthe highly complex and diverse nature of Hindu law and family practices. Hindurepresentatives seemed broadly to agree on the need for law reform in general,but not on the practices that should form the basis of a new Hindu legal system.

45 Hindu Women’s Rights to Property Bill, GOI Home Department, Judicial F.28/25/1938, NAI.46 Newbigin, ‘The Hindu Code Bill’, Ch. 2.47 Note from the Government of the United Provinces to the Secretary of the Government of

India, Legislative Department, 15 Jan. 1935, ibid.48 Differences between the Mitakshara and Dayabhaga schools of law, neither of which were

mentioned in the first draft, were made more explicit in the revised bill. Under Dayabhaga law,

which did not recognise any system of coparcenary, the widow was to be given the same status as a

dead man’s male relatives in succeeding to his property; while under Mitakshara, a widow was to be

allowed to inherit a share in her husband’s coparcenary equivalent to that held by him on his death,

though only for the duration of her lifetime. Any reference to the daughter was removed from the

revised draft. Report of the Select Committee on the Hindu Women’s Right to Property Bill, ibid.49 These were a Hindu Law of Inheritance (Amendment) Bill, a Hindu Women’s Property Bill, a

Hindu Women’s Estate Bill, and a Hindu Married Women’s Right to Separate Residence and Main-

tenance Bill, as well as three proposed revisions to the amended 1938 Hindu Women’s Property Act.

Hindu Law Committee, ‘Report of the Hindu Law Committee’, June 1941, Appendix VI.





The outbreak of World War II proved the final tipping point for the Hindu re-form debates. Concerned about the legislative energy being spent on matters ofHindu law reform, the Government of India decided, in January 1940, to appointa committee of four Hindu jurists to look into the state of Hindu law, and adviseon how best to improve it. After six months of research, the Committee stated that,in its view, the principal reason for this build-up of bills was the piecemeal approachof reformers, and advised the government to support the drawing up of a singleHindu legal code.50 At last, it seemed, Hindus would get their own version of theshariat.

Law Reform After Independence

The first full draft of the Hindu Law Committee’s Code Bill was ready for circu-lation in April 1947, by which time wider political events had overshadowedtheir work. While the Code Bill was shelved during the transfer of power nego-tiations, the decision to revive the project after independence can hardly be seenas an attempt to foist unwanted changes on a reluctant community, as Hindunationalists claim today. Throughout the inter-war period, calls for reform hadcome from Indian representatives, not the state. Fearing public outcry if theyeither supported or opposed reform, colonial officials cited the state’s policy of‘religious neutrality’ to argue that personal law was a matter for Indian representa-tives only.51 As has been shown, it was through intra-community debates andpower struggle that reforms were called for and enacted, largely through privatemembers’ bills. In the context of late colonial debates about personal law, state‘neutrality’ meant just that: the state assumed a position of inactivity in questionsof reform, leaving it to Indian legislators, acting in their capacity as members ofa religious community, to drive forward or oppose change.

The decision to revive the Code Bill project after independence did not mark abreak with the state’s religious neutrality or the adoption of a new policy of ‘pseudo-secularism’. While the passage of the Shariat Act had done much to secure theinterest of male Muslim reformers, Hindu reformers had, by 1947, failed to securea similar degree of unity for Hindu law or a comprehensive reform of men’s pro-perty rights. To reopen legislative debate about Hindu, but not Muslim, personallaw after independence was an act not of state discrimination, but a continuationof state ‘neutrality’: reform was driven by members of the community, not thestate.

50 Ibid., p. 10.51 Asked to clarify the government’s position on personal law reform in 1936, the Home Department

explained that, while acknowledging social difficulties, particularly those facing Indian women, ‘the

Government ... maintain that it is not a safer course for them to undertake legislation on matters in

which social and religious feelings are deeply involved and that it should be left to be dealt with by

private Members’ Bills’. Note by Secretary to the Government of India, Home (Judicial) Department,

7 Aug. 1936, GOI Home Department, Judicial F.39/12/1936, NAI.





Yet independence, and above all, partition, had radically transformed the contextof the law reform debates. The operation and public acceptance of state neutral-ity had rested heavily on the racial context of colonial rule. The division betweenstate and community interests could be seen much more clearly if the former wasidentified with a foreign, Christian power. After August 1947, this was no longerthe case. British withdrawal and the division of the subcontinent along religiouslines created an Indian legislature that was dominated by Hindu representatives.While some Hindu legislators had expressed concern about using the legislativepower of a colonial state to shape their religious law, Hindu dominance of thelegislature after independence helped to ease such opposition. For Muslims, amuch smaller and weaker community after partition, the very opposite was true.Having asserted their autonomy in shaping religious law and family practice underBritish rule, Muslim leaders were even less willing to concede power over personallaw to a Hindu-dominated state.

This provides a rather different view of the nation-building project that followedindependence. While on the one hand, partition created a desire to strengthen andconsolidate the new state, national leaders, and especially Jawaharlal Nehru, appearto have been sensitive to Muslim fears and to the precedent set by the colonial statein its management of religious interests.52 The decision to adopt Article 44 of theConstitution—the pledge to develop a uniform civil code—as a non-justiciablerather than legally imposed measure can be seen as a continuation of the religious‘neutrality’ operated by the colonial state. The state would develop such a codewhen there was enough support from legislators to do so—the state was a facilitat-ing force, rather than the primary actor.

In practice, however, the separation of the state and the interest of the majorityof legislators were much harder to maintain, particularly, following the decisionto introduce the Hindu Code Bill to the legislature even before the new Constitutionhad been drawn up.53 As a result, Hindu law reform was quickly drawn into concur-rent debates about Indian citizenship and the wider nation-building process. Thesense that the Code Bill was somehow linked to and endorsed by the new inde-pendent nation made it easy for the measure to be seen as innovative and as abreak with the colonial past. Just as Jinnah had argued that the uniform nature ofshariat law made it more ‘progressive’ than case or customary law, the Hindu re-formers also praised the ‘modernity’ of their new Code.54 Though the absence of

52 Soon after independence, Nehru wrote to Mohammad Ismail Khan, Muslim League representative

in the Constituent Assembly, to assure him that, for the time being at least, the government would not

allow members of one religious community to decide the personal law and family practices of another

(30 Dec. 1948). Selected Works of Jawaharlal Nehru, Vol. 9, pp. 317–18.53 The Constituent Assembly agreed a motion to continue consideration of the Hindu Code Bill on

17 Nov. 1947; Constituent Assembly of India (Legislative) Debates, 1947, Vol. V, p. 41.54 On the colonial perception of the modernity of codified law, see Skuy, ‘Macaulay and the

Indian Penal Code of 1862’.





a clear religious legal system had hindered Hindu reformers in the late 1930s,after independence, the links between Hindu law and civil power came to be seenas a source of strength. Islamic shariat law was recast as primitive precisely becauseit was religious, while the Hindu Acts that were eventually passed between 1955and 1956 were hailed by many as a thoroughly modern ‘civil’ legal code.

The focus on women’s rights was as important in reinforcing these claims asthe codified nature of the new Hindu Acts. Yet, if we look at the rights set out inthese Acts, it is the interests of mercantile and professional men such as Jayakar,rather than those of Hindu women, that are best served: the Hindu Marriage Actof 1955 enforced monogamy and granted Hindu women access to divorce, whilethe Hindu Succession Act, passed one year later, granted widows and daughters ashare in their fathers’ estate and made their rights over this inherited propertyabsolute.55 However, the exercise of these new rights was greatly limited by thedecision to retain the all-male coparcenary structure, while allowing Hindu mentestamentary powers over their share within the family estate. Hindu men thusgained greater individual control over their property, without conceding too mucheconomic power to Hindu women.56 Unlikely to opt for divorce when they re-mained financially dependent on male relatives, the vast majority of the Hinduwomen was unaffected by the legal changes. While they lost their rights to legalpolygamy,57 it seems that, contrary to contemporary claims by the Hindu right,the law reforms of the 1950s granted Hindu men considerable new economicadvantages.

Conclusion

In recent decades, Hindu nationalists have often presented shariat law as a symbolof Islamic religious conservatism and resistance to secularisation, in stark contrastto Hindu law which, they argue, has undergone far-reaching secularisation to be-come a system of ‘civil’, not religious, law. This article has strongly contestedthis view, and has argued that the adoption of shariat law by Indian Muslims wasin fact a major impetus for the Hindu ‘civil’ code so praised by Hindu nationaliststoday. Indeed, tracing the development of Hindu and Muslim law in late colonialIndia, this article has argued that contemporary claims about the ‘religious’ and‘civil’ status of Muslim and Hindu laws respectively have served to mask the manyfeatures shared by the two legal systems.

55 Under the Act, a wife and son received an equal share in a dead Hindu’s estate, while the daugh-

ter’s share was half this size.56 Kishwar, ‘Codified Hindu Law’, p. 2156.57 Although, in fact, the Hindu Marriage Act specified that a marriage would be annulled or declared

void on legal grounds only with a court petition. Thus, if a man married a second woman while his

first wife was still alive and married to him, the second union would be legally valid until a case was

brought before a court to recognise its invalidity. Diwan, ‘The Hindu Marriage Act, 1955’, p. 268.





The final decades of colonial rule witnessed concurrent attempts by Hindu and

Muslim male reformers to alter their legal systems in ways that served their own

economic and political interests. The ways in which they succeeded in securing

these ends were very different, shaped largely by colonial constructions of Hindu

and Muslim religious practice. The construction of Muslim personal law as ‘reli-

gious’ did not come about as a result of resistance to ‘secularising’ forces, nor from

a return to traditional practices. Rather, the importance given to religious identity

in the administration of colonial subjects, together with the strong emphasis placed

by colonial jurists on the role of Koranic scripture in shaping certain aspects

meant that Muslim representatives were able to use shariat law as a way of asserting

their autonomy as leaders of a Muslim community. In the communal tensions that

followed partition, maintaining this autonomy over a united Muslim constituency

became of vital importance to those leaders left in India.

Similar processes and patriarchal agendas shaped Hindu personal law reform,

albeit in a very different direction. Post-independence law reforms grew out of a

pre-independence drive by powerful Hindu men to improve their own individual

property rights, and to present themselves as leaders of a united Hindu community.

At the same time as it drove a wedge between Muslim ‘religious’ law and the

civil apparatus of the state, partition helped to cement the role of the legislature in

shaping Hindu personal law. Contemporary Hindu personal law has not been the

outcome of abstract processes of ‘secularisation’ or ‘modernisation’, but is the re-

sult of struggles between different groups of men to strengthen and extend their

own political and economic interests.

From this perspective, it seems that more unites the contemporary systems of

Hindu and Muslim personal law than divides them. Both are crucial in propping

up particular formations of patriarchal power. Muslim personal law reform was

driven, initially, by attempts to protect the wealth of elite Muslim families; how-

ever, over the course of the 1920s and 1930s, it was drawn into Jinnah’s campaign

to secure political power for the Muslim League and for himself. While they often

framed their arguments in the language of women’s rights and equality, Hindu re-

formers in this same period sought to change Hindu personal law in order to sec-

ure stronger individual rights for men, away from the joint family. This article

therefore provides a strong historical background for arguments put forward by

women’s groups and those on the left of Indian politics, stating that while future

law reform is essential, it should not build on the current personal legal systems.58

The introduction of a uniform civil code, the primary aim of which is to secure

gender equality, not ‘preserve’ the best features of personal law, has the potential

to affect not only gender equality, but also India’s communal situation, and even

the marginalisation of the Muslim community as a whole.

58 Sen, ‘The threats to secular India’, pp. 10–11; Sangari, ‘Gender Lines’.





This also has important implications for the way in which we understand secu-

larism, both in India and elsewhere. This article has presented secularism not as a

philosophical or cultural concept that can be misinterpreted, or be inappropriate to

certain communities,59 nor as a fixed and timeless constitutional arrangement that,

once imposed, can be corrupted or endangered.60 Rather, it has shown how secular-

ism is politically constructed, how its functioning rests on the defining of religion

and its spaces. This process of definition and reshaping is always ongoing and

highly contested,61 but was so particularly in late colonial India.62

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