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Hindu code bills

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Hindu code bills

The Hindu code bills were several laws passed in the 1950s that aimed to codify and reform Hindu personal law in India, abolishing religious law in favor of a common law code. The Indian National Congress government led by Prime Minister Jawaharlal Nehru successfully implemented the reforms in 1950s. This process was started during the British rule of India.

After the independence of India, the Nehru administration saw the reform of the Hindu code as necessary for modernising the Hindu society as well as to forge national unity. After facing initial resistance, Nehru campaigned for it during the general election in 1952, and reintroduced the bills which were passed as the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act during 1955–1958. These laws apply to all "Hindus", defined expansively to include Jains, Buddhists and Sikhs. Other personal laws inherited from the British rule, for Muslims, Christians and Parsis, remain unreformed, forming an issue of debate among women, religious, and nationalist groups.

While there may be a permanence of certain fundamental beliefs about the nature of life that is pervasive through Hinduism, Hindus as a group are highly non-homogenous. As Derrett says in his book on Hindu law, "We find the Hindus to be as diverse in race, psychology, habitat, employment and way of life as any collection of human beings that might be gathered from the ends of the earth." The Dharmaśāstra—the textual authority on matters of marriage, adoption, the joint family, minorities, succession, religious endowments, and caste privileges—has often been seen as the private law of the Hindus. However, whatever is known and interpreted about this Hindu law is a jumble of rules, and often inconsistent and incompatible with one another, that are lacking in uniformity.

Hindu law's content and structure has ultimately survived as a result of its administration by British judges who gave a lot of attention to Hindu religious-legal texts, while simultaneously invoking English procedure, jurisprudence, and English law to fill any gaps. Opinions often differ as to the extent of the discrepancy between the current law and the public's needs, but most agree that a substantial inconsistency exists.

In 1921, the British Government had already gone so far as to welcome individual Members' efforts at piecemeal codification, a limited but significant shift in policy. According to Levy, that year, "two Hindu legislators, one a lawyer in the Central Legislative Assembly (the lower House), the other an eminent scholar of Sanskrit in the Central Council of States (the upper House), initiated resolutions seeking Government support for a Hindu Code of family law." In the next two decades many such fragmentary measures were enacted, modifying the Hindu law of marriage, inheritance, and joint family property. As a whole, the enacted bills carried further a modest trend toward increasing property alienability, reducing the legal importance of Varna (class), sanctioning religious heterodoxy and conversion and, most significantly, improving the position of women. However, it was the passing of the Hindu Women's Rights to Property Act (Deshmukh Act) in 1937, which had given the widow a son's share in property that was one of the most substantial steps towards the Hindu Code Bill.

In December 1946, the Constituent Assembly convened to devise a Constitution for the soon-to-be-independent India. Some argued that India's various personal laws were too divisive and that a uniform civil code should be instituted in their place. And once the notion of a uniform civil code was put forward, it soon became accepted as an important part of the effort to construct an Indian national identity, over the separate identities of caste, religion and ethnicity. Some resistance to the code was on the grounds that its imposition would destroy the cultural identity of minorities, the protection of which is crucial to democracy. Certain feminists thus argue that the uniform civil code debate balances on the polarity of the state and community, rendering the gender-based axis upon which it turns, invisible.

A compromise was reached in the inclusion in the first draft of an article that compelled the state "to endeavour to secure for the citizens a uniform civil code throughout the territory of India." The clause, a goal, not a right, became Article 44 in the Constitution. It was widely criticised by proponents of a uniform code because it contained no mechanism and provided no timetable for enforcement. However, Prime Minister Jawaharlal Nehru and others insisted on its inclusion, arguing that even if it was only symbolic, it was an important step towards national unity. Though Nehru himself likely would have favoured a uniform code, he knew that personal laws were linked with religious identity in India and therefore could not be easily abolished. Recognizing that what he wanted was not a political reality, he settled for an unenforceable clause.

In 1941, the colonial government had appointed a four-member Hindu Law Committee, known as the Rau Committee after its chairman B. N. Rau. The committee was to resolve doubts about the Deshmukh Act's construction, ensure that its introduction of new female heirs was not made at the expense of the decedent's own daughter and consider bills introduced to abolish women's limited estate and to make polygamy a ground for separate residence and maintenance. Later in 1941, the Committee reported that the time had come for a Hindu Code. Social progress and modernization could only be achieved by fundamental reforms, which recognized gender equality. The code was to be shaped with the aid of orthodox, conservative and reformist Hindus and by a comprehensive blending of the best of the current schools of Hindu law and the ancient texts.

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