Hostname: page-component-586b7cd67f-2plfb Total loading time: 0 Render date: 2024-11-25T10:10:25.697Z Has data issue: false hasContentIssue false
  • English
  • Français

Personal Law and Citizenship in India's Transition to Independence

Published online by Cambridge University Press:  06 January 2011

ELEANOR NEWBIGIN
ELEANOR NEWBIGIN*
Affiliation:
School of Oriental and African Studies, Thornhaugh Street, London WC1H 0XG, UK Email: [email protected]
Get access Rights & Permissions [Opens in a new window]

Abstract

Studies of the post-colonial state have often presented it as a structure that has fallen under the control of self-interested sections of the Indian elite. In terms of citizenship, the failure of the state to do more to realize the egalitarian promise of the Fundamental Rights, set out in the Constitution of 1950, has often been attributed to interference by these powerful elite. Tracing the interplay between debates about Hindu property rights and popular support or tolerance for the notion of individual, liberal citizenship, this paper argues that the principles espoused in the Fundamental Rights were never neutral abstractions but, long before independence, were firmly embedded in the material world of late-colonial political relations. Thus, in certain key regards, the citizen-subject of the Indian Constitution was not the individual, freed from ascriptive categories of gender or religious identity, but firmly tied to the power structures of the community governed by Hindu law.

Type
Research Article
Information
Modern Asian Studies , Volume 45 , Issue 1: From Subjects to Citizens: Society and the Everyday State in India and Pakistan, 1947–1970 , January 2011 , pp. 7 - 32
Copyright
Copyright © Cambridge University Press 2010

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

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

2 Washbrook, D. A., ‘Law, State and Agrarian Society in Colonial India’, Modern Asian Studies, vol. 15, no. 3, (1981), pp. 653–658CrossRefGoogle Scholar; O'Hanlon, Rosalind, ‘Issues of Widowhood: Gender and Resistance in Colonial Western India’ in Haynes, Douglas and Prakash, Gyan (eds), Contesting Power: Resistance and Everyday Social Relations in South Asia (Oxford University Press, New Delhi, 1991), pp. 62–108Google Scholar, especially pp. 77–79.

3 Recent exceptions are Sinha, Mrinalini, Specters of Mother India: the Global Restructuring of an Empire (Duke, Durham & London, 2006)CrossRefGoogle Scholar; and Chandavarkar, Rajnarayan ‘Customs of Governance: Colonialism and Democracy in Twentieth Century India’, Modern Asian Studies, vol. 41, no. 3 (2007), pp. 441–470CrossRefGoogle Scholar.

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

5 Washbrook, ‘Law, State and Agrarian Society’, pp. 653–655.

6 Gilmartin, David, ‘Kinship, Women and Politics’ in Minault, G. (ed.), The Extended Family: Women and Political Participation in India and Pakistan (Chanakya Publications, Delhi, 1981), pp. 151–170Google Scholar; Mani, Lata, Contentious Traditions: the Debate on Sati in Colonial India (University of California Press, Berkeley, 1998)Google Scholar, Oldenberg, Veena Talwar, Dowry Murder: the Imperial Origins of a Cultural Crime (Oxford University Press, Oxford, 2002)Google Scholar.

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

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

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

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

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

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

13 Bina Agarwal, A Field of One's Own, pp. 227–230.

14 Kozlowski, G. C., ‘Muslim Women and the Control of Property in North India’, Indian Economic and Social History Review, vol. 24 (1987), pp. 163–181CrossRefGoogle Scholar.

15 Carroll, Lucy ‘Daughter's Rights of Inheritance in India: a Perspective on the Problem of Dowry’, Modern Asian Studies, vol. 25, no. 4 (Oct 1991), pp. 791–809CrossRefGoogle Scholar, especially p. 794.

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

17 For a fuller description of succession practices and rights under the schools of Hindu 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 operation in Southern India. However, even these were organized around a joint family system, known as a tarwad, which operated much like the coparcenary system, except that property passed along the maternal line. Raghavachariar, N. R., Hindu Law: Principles and Precedents, Vol. II (Madras Law Journal Office, Madras, 1935, 1980 edn), pp. 703–704Google Scholar; 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); Sen, Samita, ‘Offences Against Marriage: Negotiating Custom in Colonial Bengal’, in John, Mary E. and Nair, Janaki (eds), A Question of Silence? The Sexual Economies of Modern India (Kali for Women, New Delhi, 1998), pp. 77–110Google Scholar.

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

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

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

24 Washbrook, ‘Law, Sate and Agrarian Society’, pp. 669–673.

25 Baker, C. J., An Indian Rural Economy 1880–1955: The Tamilnad Countryside (Clarendon, Oxford, 1984), especially pp. 241–249 and 414–420Google Scholar; Sarkar, Tanika, Hindu Wife, Hindu Nation (Permanent Black, New Delhi, 2001), pp. 8–16Google Scholar; Chandavarkar, Rajnarayan, The Origins of Industrial Capitalism in India: Business Strategies and the Working Classes in Bombay 1900–1940 (Cambridge University Press, Cambridge, 1994), pp. 23–67CrossRefGoogle Scholar.

26 Muslims governed by customary legal systems, especially those in Punjab and Bengal, 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 became an even more popular way of protecting a family's hold over land in the nineteenth century, 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 public and private character of the waqf were paralleled by debates about private trusts governed by Hindu law. On the emergence of this notion of public economic space and its impact on Hindu personal legal structures see Birla, Ritu, Stages of Capital: Law, Culture and Market Governance in Late Colonial India (Durham and London: Duke University Press, 2009)Google Scholar.

30 Gledhill, Alan, ‘The Influence of Common Law and Equity on Hindu Law Since 1800’, The International and Comparative Law Quarterly, vol. 3, no. 4 (1954) pp. 581–587CrossRefGoogle Scholar; Sturman, Rachel, ‘Property and Attachments: Defining Autonomy and the Claims of Family in Nineteenth-century Western India’, Comparative Studies in Society and History vol. 47, no. 3 (2005), pp. 611–637CrossRefGoogle Scholar.

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 Finance Department, Separate Revenue—A Proceedings, January 1887, nos. 37–46.

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

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, Saiyid, Matlubul HasanMohammad Ali Jinnah: A Political Study (Sh. Muhammad Ashraf, Lahore, 1945; 1953 edn), pp. 125–135Google Scholar.

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

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

38 Mitter, , The Position of Women under Hindu Law (Calcutta, 1913; reprinted New Delhi, 1989)Google Scholar.

39 Ibid., p. 124.

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

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

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

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 of their 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, the National Council of Women in India (NCWI), established in 1925 and the All India Women's Conference (AIWC), which met for the first time in 1927 to discuss women's education but rapidly grew into a more permanent organization. Forbes, Geraldine, Women in Modern India (Cambridge University Press, Cambridge, 1996), pp. 72–91CrossRefGoogle Scholar; Candy, Catherine ‘Competing Transnational Representations of the 1930s Indian Franchise Question’, in Fletcher, Ian Christopher, et al. . (eds), Women's Suffrage in the British Empire (Routledge, London, 2000), pp. 191–206Google Scholar. Basu, A. and Ray, B.Women's Struggle: a History of the All-India Women's Conference 1927–1990 (Manohar, Delhi, 1990)Google Scholar.

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

48 Mrinalini Sinha, Specters of Mother India.

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

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

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 Nair, Janaki, Women and Law in Colonial India: a Social History (Kali for Women, Delhi, 1996), p. 193Google Scholar.

53 The Government of India insisted that this reference to ‘law’ be altered before the bill was enacted, so that, in the end, the measure affected only customary practice and 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.

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. Khan District, Punjab, Précis of opinions on the Moslem Personal Law (Shariat) Application Bill—Paper III; Ibid.

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

57 Paper II, Ibid.

58 Paper I, Ibid.

59 Explanatory summary by Robert F. Mudie, Government of India, Home department, 11 September, 1937, (NAI) GOI Home Department, Judicial F.36/17/1935.

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

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

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

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 Right to Property Act, 1937, introduced by Mr G. S. Motilal in July 1938. (NAI) GOI Home Department—Judicial F.28/13/1938.

65 In a summary of official opinion on G. S. Motilal's 1938 bill to amend the Hindu Women's Right to Property Act, a member of the Government of India explained that the main criticism of the measure was that, ‘The Bill is fundamentally opposed to 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 Basu, Monmayee, Hindu Women and Marriage Law (Oxford University Press, Delhi, 2004), pp. 127–133Google Scholar.

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

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

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