The constitution of the (independent) Indian Union provides (Article 44) that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. This clause was debated and adopted on 23 November 1948 (Clause 35 of the bill).Footnote ¹ The Constitution, as a whole, was adopted on 26 November 1949 and came into force on 26 January 1950.

1. The historical and legal context

The Constituent Assembly (C.A.) did not end its work at this date. Its members, who had been elected through indirect suffrage in March 1946 (stemming from the provincial Assemblies elected the same year) started their work on 9 December and continued it – although no longer as constituents, but as members of the Legislative Assembly, or Dominion Legislature – until 1952. The Indian Independence Act, adopted by the British Parliament on 18 July 1947 (with immediate effect) had indeed provided that the same Assembly would be both constituent and legislative (the Government of India Act of 1935 thus remained valid – but for the adjustments to the new conditions of independence as proclaimed on 15 August 1947, with the creation of two states, namely the Indian Union and the Islamic Republic of Pakistan). Hence, there was no legal void when independence was proclaimed, and this despite the tragedies of the Partition. All that was left to deal with was the departure, and replacement, of a number of elected members representing regions which had become Pakistani; hence, B. R. Ambedkar himself, who had been elected (by the Scheduled Castes and with the support of the Muslim League) in July 1946 (via partial elections) in East Bengal, was chosen by the Bombay Legislative Congress Party for a partial election of the C.A. in July 1947 (Keer Reference Keer1981, p. 395).Footnote ²

These very specific conditions were not without providing ammunition to those, within the Parliament, who were opposed to the Hindu Code Bill; they thus claimed that insofar as they had been elected by indirect suffrage for the sole purpose of giving the Indian Union a constitution, they were neither representative nor authorised to reform society with this type of law (this, however, did not seem to prevent them from considering that they could rightfully legislate on the organisation of the dentist or notary professions).Footnote ³

These very brief political and chronological elements must be kept in mind in order to fully appreciate the remarkable work achieved by the members of this Constituent Assembly, a number of which were brilliant lawyers and ferocious debaters – starting with Ambedkar.

The objective of the present article is to explain why the Indian Union, fifty years later, still does not have a uniform Civil Code, and to expose the opponents’Footnote ⁴ arguments. It will thus expose:

• – quasi-universal arguments (those of a patriarchal society frightened by the prospect of “modernity” granting women rights that might possibly be the same as those granted to men);

• – a historical, sociological and political situation which India shares with other States: a multiculturalism characterised by the aggressive religious references of each community, communalism being the political expression of the confessional differences;Footnote ⁵

• – Hindu specificities – in particular the acknowledgement of custom by the religious treaties, or dharmashastras,Footnote ⁶ which overbear even their prescriptions.

2. Impossible French Civil Code? Impossible Indian Civil Code

In a nation in the making, the problem of the unification of “personal and property” laws within a Uniform Civil Code is doomed to be confronted by local non written traditional customs or written laws.

The French monarchy, in its numerous (as of the 16^th century) Ordinances, was careful not to encroach on the various patrimonial laws of the kingdom. For their part, the Revolutionaries announced, as early as 1790, their intention to draft a “Code of the Civil Laws of the Kingdom”. After a number of aborted drafts, this Code (known, rightly, as the Code Napoléon), was finally adopted in 1804. This Code is still in force and has been amended a number of times.

The difficulties met during the fourteen years that proved necessary to elaborate this Code led the historian Jean-Louis Halpérin to speak of an “Impossible Civil Code” (Halpérin Reference Halpérin1992) … which turned out, after all, to be possible.

One can compare the fourteen years needed for France to unify its patrimonial law to the fifty years that have elapsed in India, from the first expression of the desire to create such a code to current times where this Uniform Civil Code still does not exist. Indeed, Nehru's India is not Revolutionary France or Bonaparte and Napoleon's France, and India's political practice remains of British inspiration. The comparison does, however, illustrate and confirm that the drafting of a uniform civil code is anything but straightforward.

Portalis (1746-1807), author of the “Preliminary Speech” of the 1801 draft Civil Code, noted, after having evoked France's historical construction process, that: “it seemed that France was a Society of societies. The motherland is common; but the States, specific and distinct: the Territory is one, but the nations are diverse” (Portalis Reference Portalis and Massenet1999, p. 14). He then raised the fundamental question:

In this context, what could be said of India which, in 1947, was divided into the provinces of the British Empire, 554 “Princely States”,Footnote ⁷ some Portuguese and French enclaves, but also divided into religious “communities” (Hindus, Muslims, Sikhs, Christians, Parsis, Jains, Buddhists), into “castes” and “tribes” (outside the caste society), into 179 languages and 544 dialects?Footnote ⁸ This was nevertheless the task that the Constituent's Indians in the middle of the 20^th century set themselves: giving the Indian Union a Uniform Civil Code. Otherwise said: giving each individual, whatever his confession, history, tradition and language,Footnote ⁹ the same “personal laws” and “property laws”, as Portalis would say.

It is probably relevant to note that, unlike France during the Revolution, all the States which, nowadays, seek to “modernise” their personal law – and even, like India, to make it uniform – are States where the different existing laws are of a confessional nature (such is the case, for example, in Morocco with the Moudawana). If one reads Portalis’ speech carefully, it appears that this dimension is completely absent from the picture that France presents.

In the Indian context, the task of creating a Uniform Civil Code was, from the start, an impossible one, if only by reason of the division of India into different religious groups.

Hence, for more than two centuries, the Muslims had their own personal law, based on the sharia, with multiple local customary variations. The British had no desire to touch it. As for the nationalists, in Congress, they needed the Muslims too much in their fight for independence to oppose them. The Parsis have also kept their own laws, but – despite the importance of a powerful Parsi nationalist figure, Dadabhai Naoroji (1825-1917) –, this was without political consequence considering their limited number. As for Jews, like Christians, they “do not have a personal law as such” but marriages and divorces had been codified since 1869 and 1872.

More importantly, within the “Hindu community” itself, regional differences are substantial. Hence, not only is the social organisation in the North different from that in the South (for example, “preferential marriages”, including avuncular marriages between a man and his sister's daughter, which are common practice in the South but are considered as quasi incestuous in the North), differences which were sometimes endorsed by British laws; in addition, there are considerable differences in customs and usage from one caste (jati) to another.

In this respect, the numerous Brahmins of the Constituent Assembly, when they refer to the Dharmashastras texts – and in particular to the most famous of them: the Manavadharmashastra (or “Manusmriti”, meaning the Laws of Manu) –, seem to neglect the fact that these treaties do not concern the Shudras nor, a fortiori, the Untouchables (that is, over three-quarters of the Hindu population), who live according to a different set of rules. Hence, for example, although the Dharmashastras prohibit divorces, for the vast majority of the Shudras or Untouchable castes, except the “dominant castes”, divorces are common practice (and in fact, very often initiated by women).

In the same line, long before the Constituent met, the anti-Brahmanical opposition had already had a long history, in particular in the Bombay and Madras Presidencies.

In addition to the above, one must also bear in mind the Jains and the Buddhists, two “heresies” which firmly reject most of Brahmanical Hinduism.

Lastly, there is the Sikh community, which voluntarily dissociated itself from Hinduism at the end of the 15^th century (Guru Nanak, 1469-1539) in order to create this religion of a “syncretistic” nature. As we will see, however, in Punjab, Hindus and Sikhs jointly defend their history and culture.Footnote ¹⁰

To add to and conclude on the paradox of the Indian situation, Article 25 of its Constitution (on the freedom of conscience and religious practice and proselytism, adopted on 6 December 1948) requires that all public Hindu religious institutions be accessible “to all classes and sections of Hindus” and specifies that “Hindu” refers to people “professing the Sikh, Jaina or Buddhist religion”. Consequently, Hindu temples remain closed to Muslims, Parsis and Christians (clearly, only a very white-skinned social anthropologist born into the Christian culture would have had the curiosity to be taken to a temple, only to be refused entry!Footnote ¹¹).

3. The British reforms

Despite their reluctance to interfere with private and religious affairs, the British were nevertheless forced, under the pressure of the most progressive Indians (essentially a Brahmanical elite), to intervene and adopt an important number of laws.

Stronger even then their reluctance to intervene was the resistance from the most traditionalist Indians and, in particular, the open opposition from the most important Brahmins of the Congress Party, such as Lokamanya Tilak (1856-1920), a political hero of Independence and a socially very conservative Brahmin. The fracture between the Hindu conservatives and reformers was fully achieved in 1895: the Indian National Congress (created in 1885), which had always held its annual meetings jointly with the reformers of the National Social Conference (its emanation), refused, that year, to let them siege in the same place.

A few brief comments suffice to highlight the main characteristics of the legislation of this colonial period:

1. i) It concerns both personal and property law and always intervenes in order to protect women, or under-aged and physically handicapped persons, and to define their rights.

2. ii) Only one of these laws (besides, of course, the Criminal Code), the 1929 Child Marriage Restraint Act (Sarda Act), is applicable to all Indians. Muslims and Christians alike had been opposed to its adoption and the Government had resisted the Hindu reformers almost twenty years.Footnote ¹²

3. iii) A number of them concern heterodox groups or reformist Hindu movements. For example, the Brahmo Samaj was created by the first major Hindu reformer, the Bengali Ram Mohun Roy (1772-1833) who, as early as 1818, campaigned against the immolation of widows (law of 1829). The 1872 law, adopted by the British, was thus tailor-made for these Brahmos “about 75 years ahead of their time” (Heimsath Reference Heimsath1964, p. 94, n. 46) and was therefore called the Brahmo Marriage Act.Footnote ¹³ Another example is the Arya Samaj, a Hindu movement of social reform that “high jacked” lower caste Hindus (essentially Untouchables) who had converted to Islam or Christianity. They obtained the 1937 Act.Footnote ¹⁴

4. iv) Minority “communities” are granted specific personal rights.

For example:

• – recognition of the Sikhs’ traditional practice with the 1909 Anand Marriage Validation Act;Footnote ¹⁵

• – for the Parsis, whose reformers played an important role, the 1865 Special Parsi Marriage and Divorce Act, prologue to the Age of Consent Bill of 1891;Footnote ¹⁶

• – for Christians, a Christian Marriage Act and the protection of converts (1850 and 1866 Acts) followed by the laws on their divorce and marriages (1869, 1872).

The legislation adopted before the proposal for the Hindu Code Bill is thus consequential and will, for the most, be kept, amended (as is the case for the Special Marriage Act of 1872) or set aside on the grounds that it is wholly or partly taken up in the propositions made by the Select Committee.

4. An essential stake for India's modernism. A fierce refusal of modernism

It seems legitimate, for a new and grand democracy, to equip itself with a Uniform Civil Code. The opposition between progressives and conservatives, however, made this an arduous, if not impossible, task.

As one can see in Annex 1, the structure of the Bill for the reform of Hindu law was nothing original, be it in its principle or its construction. Hence, its opponents’ arguments and delaying interventions were clearly linked to its substance.

Nehru's intentions were sincere and there were enough “progressives” in the Assembly wanting to give India a personal and property law that would no longer be ruled by traditional religious texts, nor by far too diverse customs. It is, however, not excessive to consider that what was about to become one of the greatest political campaigns for the social reform of India was led – and lost, in his view – by Dr B. R. Ambedkar, Minister of Justice of Nehru's government and President of the Committee in charge of drafting the Constitution. He was the one fighting day after day. Nehru, quite busy elsewhere and aware of the political danger which this Code represented, considering the numerous demonstrations held outside of Parliament and the loud (but not majority) opposition within the Parliament, only moderately supported him. He rushed things on 17 September 1951 by deciding to split the examination of the bill into two parts, in order to first vote on the “Preliminary”, divorce and marriage, leaving the rest for later, if there was time for it. After the adoption of Clause 4, on 25 September, Ambedkar, tired, resigned from government.

The first part suggested by Nehru was not even examined during this Parliamentary session and was to be picked up only in 1952 with the new Assembly. In the letters they exchanged before this resignation, Nehru recommended, as early as 10 August, to proceed cautiously and, on 27 September, he wrote to Ambedkar: “although I had not been intimately connected with this Bill, I have been long convinced of its necessity and I was anxious that it should be passed.” Unfortunately, he writes on, “fates and the rules of Parliament were against us” (Ambedkar, 15, pp. 825-826). At other times, Nehru had shown more determination and had had more convincing arguments.Footnote ¹⁷

As one can see, the parts of the Code that were voted by the next legislature (elected in 1952)Footnote ¹⁸ were those which concern personal rights (marriage, divorce, adoption, minority and guardianship) and the main rules of inheritance. In some cases, this legislature proved to be more daring than the previous one: the legal age for marriage was thus moved from 18 to 21 for men and from 15 to 18 for women; it became possible for all women, including widows, and thus no longer men only, to adopt; and adoption was no longer limited to boys only: both boys and girls could now be adopted.Footnote ¹⁹

Property rights, however, and more specifically joint ownership of coparcenary property, which were governed by the traditional mitaskhara, were left untouched, as resistance to anything that could tend towards equality between men and women remained strong. It was thus not until December 2004 that the Minister of Justice presented a bill to Parliament with a view to amending the Hindu Succession Act of 1956, giving women the same rights as men, in particular by amending Article 6 which concerns Hindu joint property.

The Act was adopted on 29 August 2005. A leading article in the The Hindu of 7 December 2004 highlighted that none of the previous legislation adopted in the 1950s to amend the Hindu law had touched coparcenary property, the son alone (and not the daughter) having a right by birth to this property, as provided for in the Mitakhsara rule, which applied in most of India (Kerala alone having definitively abolished all rights by birth to family propertyFootnote ²⁰). The article concluded that, from there, it will be necessary to review all personal laws which discriminate against women and, consequently, to work again towards the Uniform Civil Code. The problem, as will be seen in more detail in the conclusion, is that the fundamentalists of the Bharatiya Janata Party (BJP) and the Hindutva used the demand for this Code only as a weapon against the Muslim minority.Footnote ²¹

That same month (The Hindu of 21 December 2004), the Government presented another bill to the Rajya Sabha, The Prevention of Child Marriage Bill, whose purpose was clear but which confirmed all existing doubts as to the efficiency of the laws adopted at least since 1929.Footnote ²²

Going back to earlier times, the first obvious proof of the lack of priority given to the examination of the Hindu Code Bill is the fact that its analysis was extremely spread over time and that very few sessions were dedicated to it. While it may be legitimate that the time spent drafting the Constitution was considered a priority, the same could not be said of the time spent on “ordinary” legislative activity, even if this was necessary. The chronology of the analysis of the Hindu Code Bill, as highlighted in Annex 2, however, speaks for itself.

Twenty sessions in four and a half years of this legislature enabled the opponents – who, despite the fact that they were a minority, enjoyed the moral support of the President of the Assembly, Rajendra Prasad, future first President of the Indian Union – to postpone a reform which, for more than one person, was seen as proof that “a conspiracy is being hatched to disrupt the Hindu Society”.Footnote ²³ If their delaying tactics and repetitions led to the lengthening of debates on the taking into consideration of the Bill, once the vote was taken, they were beaten on the first four clauses which, in principle, they disliked the most. After the vote of Clause 2, the President of the session believed he could consider that “the major contentious clause is over” (Ambedkar, 14 (2), p. 1186). On that same day however, that is 21 September 1951, the Pandit Thakur Das Bhargava, one of the leaders of the opposition, considered for his part that it was Clause 4 that was “the most contentious clause in the whole Bill” (id., 14 (2), p. 1250). From that point of view, the most traditionalist opponents lost the battle, even though they had succeeded in gaining time and in pushing Ambedkar out of government (the latter being anything but negligible for them).

The two essential points, contained in the first four clauses, could be summarised in one sentence: from now on, the Hindu Law no longer rules. The Brahmanical treaties thus cease to be the foundation of personal and property law in modern independent India, and so do the various customs, no matter how diverse they be, that these treaties give priority to over any other written rule. This is what resulted from the definitions contained in Clauses 2 and 3 and from the principle of prevalence of the Code, as set out in Clause 4.Footnote ²⁴

Ambedkar's will is unaffected by the diehard opposition. Hence, in response to Shri Jhunjhunwala who suggested an outright amendment of draft Clause 4 as follows:

Ambedkar never ceases to reiterate that Clause 4 clearly seeks to legally disqualify –”eradicate”, as Portalis would say – all customs (but for some specific and identified exceptions):

Ambedkar's aggressiveness against everything belonging to the customary field is only one aspect of his efforts to ruin the Hindu Social Order or Brahmanical Social Order. It is his experience as an Untouchable which inspired his entire life and led to his public burning of the Laws of Manu on 26 December 1927. This was justified by the fact that he considered, rightly, that these Brahmanical texts, which are the dharmashastras, gave official recognition to the Untouchable's condition. His unfailing opposition to “customs” and “usage” will be legitimised, if there was such a need, by the mediocre response that Dr P. C. Mitra gave him on 6 September 1954 in the Rajya Sabha (the higher Chamber).

On that day (and this was one of his last interventions in the political arena), Ambedkar had challenged the silence of the Commissioner for the Scheduled Castes and the Scheduled Tribes’ report on the issues of tyranny and attacks perpetuated in villages by the “Caste Hindus” against Untouchables (S.C.) (of which he gave a few examples). He repeats the statement often made elsewhere, that

At this stage, Dr P. C. Mitra interrupts him by stating that “Untouchability is only a custom and usage” (id., 15, p. 910).

What can one add to this? The Brahmanical culture has spoken … the Brahmins and their devotees fought for the defence of “customs” and “usages” for over four years at the Lok Sabha. As will be detailed below, they attacked on different fronts.

5. To defend custom … while quoting written tradition (smriti)

By now, it is clear that this is essential, but one needs to understand what lies behind this sympathetic bond to each and every one's good old traditions and practices.

On the surface, it could seem surprising that this is not, first and foremost, linked to a need to reaffirm the absolute priority of the “sacred” texts, the Veda and the dharmashastras. The explanation can, however, be found in Robert Lingat's stupendous (though still not re-edited) book, Les sources du droit dans le système traditionnel de l'Inde. With a rare intelligence, Lingat recalls the essential role of customs (acara, sadacara, caritra,Footnote ²⁶ showing the original differences between these terms) as a source of law and, for more than one school, as an “interpretative criteria” of the smriti rules (Lingat Reference Lingat1967, p. 191). He thus recalls that one of the verses of the Laws of Manu (I, 108, “The rule of conduct, the highest law”Footnote ²⁷), “served as the basis for the Anglo-Indian jurisprudence which hallowed the primacy of custom over written law” (ibid., p. 220).Footnote ²⁸

Although using different quotations, all coherent, a number of opponents refer to the smriti, in order to assert that custom is supreme.Footnote ²⁹ In this way, everything remains in the Brahmanical universe of sacred texts.

Each will thus defend his own traditions – first as concerns the forms of marriage, the modes of transmission of property, the unique importance of the son – and compare them to his neighbour's. By so doing, all these Brahmins perpetuate the tradition of the authors of the dharma treaties, of Baudhayana who “enumerates the absurd practices specific to the Brahmins of the North or of the South” but without judging anyone in the name of the smriti: “he is of the view that the Brahmin of the North or of the South who follows the customs of his country cannot be blamed, says he, for local usage deserves respect” (Lingat Reference Lingat1967, pp. 218-219). The tone is sensibly different in the mid-20^th century Assembly. Here, if each defends his customs, he is far from honestly respecting those of others, whether Brahmanical or not. In fact, there is a rather general incomprehension of each others’ practices and customs and the Northern Indians’ abhorrence for Southern Indians is hardly disguised.Footnote ³⁰

Pattabhi Sitaramayya, a very pro-Gandhi member of Congress, when protesting against the possibility which could be given to a very young woman to choose her husband by herself, started by recounting an anecdote: “The other day I asked my wife's sister's husband's sister …”, but had to interrupt himself in order to explain “No, that is not a distant relationship, you know, my wife's sister's husband is my brother-in-law…”.Footnote ³¹ Further on, though, when defending his colleague from Malabar who was demanding the conservation of the marumakkattayam system, he explains to the Assembly that it is a “beautiful system” but that “For three years you may study it and still you will never understand its secret” (Ambedkar, 14 (1), pp. 678-679).

The Punjabi Pandit, Thakur Das Bhargava, was hostile not to divorce itself but to the forms suggested as well as to the 1869 Act, which he believed was made for Christians “who were of the same caste as the then rulers” and highlighted the differences between North and South; marriages between a man and his mother's brother's daughter (matrilateral cross cousin) were frequent in certain areas of Bombay and Madras.Footnote ³² In Punjab, however, it is “highly incestuous” and men who did this may be killed (id., 14 (1), p. 341).Footnote ³³ He did not really understand what two women were asking for, concerning a particular form of marriage, and asked his colleague Sri L. Krishnaswami Bharati, whom he believed to come from the same region. The latter, however, exclaimed “Luckily I do not come from that part. I come from Tamilnad and they come from Malabar” (id., 14 (1), p. 351). A deputy from Madras, also from Malabar, intervened to protest against the envisaged general prohibition of marriages between sapinda Footnote ³⁴ people, which would make marriages between cross cousins impossible (id., 14 (1), p. 621).

The same Pandit, still, is totally hostile to the possibility of a woman inheriting both from her father and her husband. The son is and must remain the sole heir and one may even, notably through adoption, customarily designate “an appointed heir” (id., 14 (2), p. 1226).Footnote ³⁵ In Punjab, not only is village exogamy the rule (id., 14 (1), p. 345), but it is in fact out of the question for a father to go to his son-in-law's house once he has given him his daughter. Father and mother should “not even want to touch water from the house of the daughter”. (“Why?” asked a Tamil Brahmin – “You cannot understand this”). There are parents who will not even go the village where their married daughter lives (id., 14 (1), pp. 349-350). Hence, if she were to be widowed and without children, would her parents inherit from her?

He also defended the levirate practice (remarriage between the youngest brother and his eldest brother's widow), simple and frequent in Punjab (id., 14 (2), p. 1251). Although this made a number of representatives laugh, he reminded them, the next day, that the Ramayana and the shastras accept this practice (id., 14 (2), p. 1253). He did, however, admit that, infanticide of young girls, which is a frequent practice of Rajputs, is “unnecessarily wrong” (id., 14 (1), p. 345).Footnote ³⁶

Custom is thus sacred, since the smriti affirms its absolute prevalence. If, as we saw, the British acknowledged this prevalence, what was the problem?

6. The British petrified customs and texts

For the opponents to the Code, this was a true calamity. For them, the British had never understood the flexibility and adaptability of the smriti throughout time; the British believed, that the dharma treaties were rigid, fixed for eternity. On this issue, the fiercest opponents, those who accepted the reform on the condition that it be postponed, meet those who defend the CodeFootnote ³⁷ and intend to prove that it is not, in any manner, contrary to the Hindu “religion”: Hindu law and the texts of the smriti had always been able to adapt and evolve, until the British came along.

It was Pattabhi Sitaramayya who, as early as 9 April 1948, right after Ambedkar had asked for the bill to be entrusted to a Select Committee, spoke up (Ambedkar, 14 (1), pp. 12-22).Footnote ³⁸ The British, out of political prudence, refused to touch the sensitive socio-religious structure of this country. The High Courts judge therefore merely registered the centuries-old customs but never what could have been a change or an improvement: “Thus custom became petrified and when custom became petrified, progress became impeded altogether.” The missionaries themselves who began by encouraging young Hindus to rid themselves of their orthodoxy, ended up worrying about the critical and progressive effects of this British education, and even Brahmoism appeared suspect to them; in turn, they became conservatives and protected the old customs.Footnote ³⁹

This argument was to be reused indefinitely. Shri Krishna Chandra Sharma was more specific and condescending than the others: “What is Hindu Law? Decisions of Englishmen given with the help of or at the suggestion of demoralised creatures”, namely the pandits who accepted to work with and for them, “not representative of Hindus” (id., 14 (1), p. 615).Footnote ⁴⁰ The pandit Lakshmi Kanta Maitra had preceded him:

He praised this Hindu Law, which had “the oldest pedigree of all the known systems of jurisprudence in the world”. Having been interrupted by an Untouchable, an elected representative of West Bengal, who protested that “It is unjust”, the pandit answered him, condescendingly, “Whether the system is good or bad, it is for the society to judge; it is not for disappointed or disgruntled persons to judge”. He raised as proof of this its capacity to survive throughout the centuries, a point that was often ridiculed by Ambedkar, here or elsewhere (id., 14 (1), pp. 409-410).

According to them, what the British and their creatures had denatured was a magnificently flexible system, capable of adapting to all changes in society; so much so that the multiplicity of smritis (137, maybe 138), far from reflecting the irreducible contradictions of Brahmanical society (since it is this society which is concerned), on the contrary illustrate its amazing capacity to adapt to changes.Footnote ⁴¹ Firstly, they all rest on the Veda; they are merely comments and do not “create” law. In this respect, as the dharma treaties themselves indicate, and as quoted by the Pandit Thakur Das Bhargava (without specific reference): “Sruti says something and Smriti another. There is no sage whose word can be taken as final. The secret of Dharma (duty) is very deep. Follow the path traversed by the great” (id., 14 (2), p. 1259). Hence, Kameshwar Singh insists, in terms that Indian specialists and sociologists would not denounce, that “Unity in diversity is the chief characteristic of the Hindu life and religion and we should not take the seeming diversity as an evil which must be instantaneously removed” (id., 14 (1), p. 665). But, he added, the authors of these treaties only made the necessary changes when they had “the popular support” since “the bulk of the people had abundant faith in their learning, in their foresight, in their purity of purpose and above all in their conduct”. It is obvious, he went on, that

Clearly, none of this – neither the wisdom of the legislators nor popular support – was to be found there. This explains why, as demanded by a Southern Brahmin, only a Pandit Parishad (i.e. an assembly of pandits) could be entitled to reform the Hindu Law (id., 14 (1), p. 708).

Ambedkar did not share this view on the multiplicity of smritis. On 24 February 1949, he mocked the Brahmins who had managed to write 137 of them despite probably having better things to do (id., 14 (1), p. 280).Footnote ⁴³ Seth Govind DasFootnote ⁴⁴ willingly agreed that the rishis, authors of these Smritis, had written many different things and that it is not prohibited to make reforms but later, and such reforms should not be made by “reformers” influenced by a Western education and who do not care about our heritage (id., 14 (1), pp. 297-298). The reference to the smritis was appreciated. The next day, V. Kamath came to sincerely congratulate Ambedkar for having written the 138^thsmriti.Footnote ⁴⁵ But on the following 2 April, the Muslim Bengali deputy, Naziruddin Ahmad, considered that nothing in this “138^thsmriti” was good. The Pandit Lakshmi Kanta Maitreya straight away agreed: “It is vismriti!” (id., 14 (1), p. 546).Footnote ⁴⁶

At the end of the year, on 12 December, the Pandit Mukut Bihari Lal Bhargava started the most lyrical and Gandhian of his verses, singing “the supreme beauty of Hindu Law” (id., 14 (1), p. 583). It is this law that enabled India to go through centuries, with its customs and usages.Footnote ⁴⁷ Of course, “The India of ours does not reside in urban towns like Allahabad and Delhi. The real India lives in the five lakhs [500,000] of villages” and its villagers, with all their strength, oppose that proposed Code, considered as unacceptable for any Hindu, and which can only satisfy “a few disgruntled persons” (id., 14 (1), p. 584). This apology of the village living harmoniously under the Brahmin's law is a sensitive issue: that village was considered as the malediction of the Untouchables and hated by Ambedkar who described it as “a sink of localism, a den of ignorance, narrow-mindedness and communalism” (id., 13, p. 62, on 4 November 1948, at the Assembly).

Lastly, and still on this issue of the admirable longevity of Hinduism which proves its unique truth, Ambedkar never ceased to claim – as early as 1918 in response to Bertrand Russell (id., 14 (1), p. 487)Footnote ⁴⁸ – that “There are many modes of survival and not all are equally commendable”.Footnote ⁴⁹ Again, on 20 September 1951, he asked “Is survival enough or whether it is necessary for us to consider whether the plane on which we survived is more important than the mere survival itself?” (id., 14 (2), p. 1159).

It will be clear by now that this is the heart of the opponents’ argumentation. They must not be confused with the truly reactionary rigid traditionalists, who demonstrated outside the Assembly in the defence of written tradition. The aim here is to reasonably defend ancestral customs and usages, about which the wise tradition of the authors of the dharma treaties say that they prevail over any general principle set down by a written text. In substance, we will not object to reviewing these customs, since our long history proves that legislators have always known how to adapt to society's new conditions. But we will not reform it now, on the basis of a Code which we deem completely insufficient and which endangers our religion and the traditional harmony of our society.

7. Why reform only the Hindu community?

In order to show that they also had a sincere will to reform, the opponents never ceased to question why they were being proposed a law that only concerned one community – the Hindu community. Why not make this Code a Uniform one, as provided for in Article 44 of the Constitution? Also, and this was a “formal” argument, though of a strong moral value: our election system does not authorise us to deeply reform Indian society; let us leave the next legislature to do that. The opponents, as mentioned above, had the explicit moral support of the President of the Assembly, Rajendra Prasad, about whom a deputy said that “he gave the warning that the Constituent Assembly constituted as it is to-day, ought not to discuss a legislative measure of this nature” (Ambedkar, 14 (1), p. 431). In fact, the enormous work undertaken in five years (1947-1951) was carried out by about three hundred deputies of this Constituent (and legislative) Assembly. Sometimes, less than one hundred of them were present – as for example on 22 September 1951, to vote the end of the discussion on Clause 4 (id., 14 (2), p. 1304). One should never forget that all this was done in the midst of the turbulence and dramas of Independence and Partition.

These members of the Constituent Assembly had been elected by members of the lower chambers (only) of the Provincial Legislative Assemblies, for their part divided into three colleges (Muslims, Sikhs and “general”), elected in proportion to the population – the Indian States also had their representatives (Basu Reference Basu1999, p. 18). The Pandit Lakshmi Kanta Maitra gave his own example: elected from Bengal, he would not have been there but for the vote of four deputies of the Bengali Provincial Assembly (elected in 1946), which certainly did not mandate him, said he, to allow them to divorce or to “scrap up the law of inheritance” (as it results from the Mitakshara or the Dayabhaga). He was elected only to lead India to independence, like all his colleagues. He was thus not empowered (Ambedkar, 14 (1), pp. 431, 425).

In conjunction with this question of the legitimacy of the constituents – a question that was considered as relevant only by the opponents – came another, of importance for any representative democracy, in particular one elected by indirect suffrage: do the people's representatives have the legitimacy to transform society according to what they see fit and necessary, or is their mandate limited to acting in accordance with their electorate's desires, feelings and state of mind?

The statements made about the Indian Independence Act at the beginning of this article were enough for Ambedkar to refute the claims of lack of empowerment. He was vigorously supported by N. V. Gadgil, who had been hearing this same antiphony for fifteen years, each time a social reform was proposed (id., 14 (1), p. 434). On 18 September 1951, he perfectly expressed what, within the nationalist militants and Party of the Congress, had been for sixty-five years an obvious fact that marked the limit of their will to modernise and “regenerate” India: “You praise us and praise yourselves for having done something great in the political sphere. Why are you afraid of achieving something in the social field?” (id., 14 (2), p. 1038).Footnote ⁵⁰

The opponents suddenly discovered how interesting the laws previously adopted under British rule could be: they could be of interest for a Uniform Civil Code and would thus avoid being “community-specific”. The main diversion was made by the Pandit Thakur Das Bhargava, as early as 26 February 1948 when he asked permission to present a project, “a Bill to provide that marriages between Hindus, Sikhs, Jains and their different castes and sub-castes are valid” (id., 14 (1), p. 4; see, pp. 229 sq., 11 February 1949). He thus intervened after Ambedkar's request (17 November 1947) and before the H.C.B. was sent to a Select Committee (9 April). On 11 February 1949, he presented a draft which only concerned “Hindus” but, of course, indicated that he wanted “a civil code for the whole of India” (id., 14 (1), p. 352). Six days later, the discussions “to take into consideration” a “Bill to amend and codify certain branches of the Hindu Law” (meaning, the H.C.B.) began. The Pandit's law was voted before the end of 1949 with a unanimous vote, but for Ambedkar's voice, as he had denounced this delaying tactic, on the grounds that it was only “a part of the Hindu Code which I am sponsoring” and he refused to “proceed piece-meal with the legislation” (id., 14 (1), p. 238). This was, however, how it was ultimately undertaken, on Nehru's initiative.

As mentioned earlier, there was one major reason for reforming, from a civil point of view, only the Hindu community. This was the same reason that had held back the British and which led to there still not being, in 2009, in the independent Indian Union, a uniform right applicable to persons and things: the political prudence required from any power as concerns the Muslim community.

What Muslims and Hindus have in common, which makes any reform of personal law very delicate, is their certainty that this law is religiously founded and thus cannot be reformed by human will. In this respect, Muslims are, probably much more than the Hindus, convinced of the sacred character of their personal law: the Quran is, amongst all texts, far more “sacred” (if one may say) than the dharma treaties, which is why the Hindus of the Constituent managed to behave the way they did.

One reference will be sufficient, that made by Khwaja Inayat [sometimes Inait in the text] Ullah, elected from Bihar. As a Muslim, he did not want to interfere in the debates which concerned Hindus only (id., 14 (2), p. 1146). However, when the amendments seemed to want to extend to other communities (Muslims, Christians, etc.), he intervened (id., 14 (1), p. 828; id., 14 (2), p. 1127). When a deputy mentioned the rules for adoption in Punjab, he dryly cut in saying that “In Muslim law there is no adoption” (id., 14 (1), p. 1228), to which the first deputy replied that “Almost every Punjabi Muslim” practises customary adoption. This Khwaja Inayat Ullah has a rigid literal approach, in particular considering that if he is “an Indian and a Muslim also” (id., 14 (1), p. 1146), or even, according to some, “positively a political Hindu”, he was and “shall continue to be a Muslim by religion” (id., 14 (1), p. 1148). Interestingly, he is a convert, of Brahmin ancestors and, said he with pride, “Brahmin blood is flowing in my veins – that pure blood which has not been mixed up so far” (id., 14 (1), p. 1148). That day, on 20 September 1951, he abandoned his position as observer and defended the “secularism” which, as the head of the Hindu Mahasabha, Syam Prasad Mookerjee, said, is not a “disease” but a “cure”. The boundary of his secularist reformism was quickly reached, however, in his response to N. V. Gadgil who, the day before, had said that it was possible to change Hindu law since it had constantly been changed, and that “in the days to come the Muslims may be included”. He warned him:

Once more, what can one add to this?

Whether they were being hypocritical or sincere, everyone very well knew that there was no chance, then, of achieving this Uniform Civil Code. Shrimati Jayashri was amongst the clearest on this when she stated on 18 September 1951 that

Despite this, during the discussion and vote of the famous Article 44 (then Clause 35), on 23 November 1948 (id., 13, p. 361),Footnote ⁵¹ Ambedkar, in response to doubts expressed by a Muslim as to whether one Uniform Civil Code for such a diverse country was possible and well-founded, answered very clearly that “We have in this country a uniform code of laws covering almost every aspect of human relationship”, namely a Criminal Code, Penal Code, Criminal Procedure Code, as well as a Law of Transfer of Property and many other laws, which prove that “this country has practically a Civil Code, uniform in its content and applicable to the whole of the country”. He then added these fundamental sentences:

The tone is clear and combative. Ambedkar knew very well that the last bastion to be brought down was personal law. However, he also knew that in India, religions are not amongst those which “have no legal system at all, which are just pure matters of creed”, but are religions “which have as their part a legal system, which you cannot sever from those religions” (id., 14 (2), p. 887). He reverted to this later:

This is why the Constitution allows us “to treat different communities differently”. But if Article 25 protects them, it also provides that

Hence, if nothing general was to be done now, it would be one day or another. As for the time being, however, one had to tackle Hinduism. “Unifying” it is a first step towards this Uniform Civil Code and, this is important for Ambedkar, a progress towards equality of women and men's rights.Footnote ⁵⁴

Ambedkar's goal is not only that of legal unification. He obviously aimed, here as elsewhere, at the destruction of the Hindu or Brahmanical Social Order Footnote ⁵⁵ and the whole attitude of the opposition proved, in his eyes, the worthiness of his quest. It is indeed the Hindu community that has an urgent need for reform and one cannot apply to the Muslims (who have not been consulted) the “Hindu Code Bill which has been professedly, deliberately, calculatedly intended to apply to what is called the Hindu community” (id., 14 (2), p. 1169). A Committee had gone around the Provinces and the States, informing, consulting and discussing solely with the Hindus and the Sikhs. It is true, “the Hindu community needed the reform so badly – it was a slum clearance” (id. highlighted here to indicate that Ambedkar repeated this phrase twice). This is precisely why, for Ambedkar, it was necessary to “amend and codify” “certain branches of the Hindu Law”. For Nehru this was not a priority, and he clearly did not want, for (justified) political reasons, to endanger his political power.

8. Prolongations. The reforms and personal law of Muslims

The traditionalist Hindus of the Assembly energetically refused the mere idea of a Uniform Civil Code. A good portion (but not all) of the Muslims were on the watch and ready to oppose any attempt at modifying their personal law. The turn of events showed interesting changes.

The most conservative Hindus, that is the fundamentalists, are the ones who ceaselessly and loudly demand the adoption of a Uniform Civil Code today; it is one of their forms of attacks against the Muslims who, for their part, quickly organised their own defence. Hence, on 7 April 1973, they created an All India Muslim Personal Law Board (AIMPLB), dominated by the Deobandi (who are Sunnites of the hanafite school who have evolved towards a stricter approach to Islam, close to that of the Wahhabites), and where both the Barelvi (who are also hanafites but more open and inspired by Sufism) and the Shiites are in minority.Footnote ⁵⁶ The purpose of this AIMPLB is clearly exposed: it is to ensure respect of the 1937 law and to prevent the adoption of a Uniform Civil Code.Footnote ⁵⁷

The AIMPLB showed its capacity to exercise pressure during the Shah Bano affair concerning the repudiation of an elderly mother of five by her husband in 1978. Left without resources, Shah Bano turned to the legal system and, in 1985, obtained a judgement from the Supreme Court: she was to receive the equivalent of an alimony in application of the 1973 Code of Criminal Procedure, whose Article 125 defines a man's alimony obligation towards his wife (including a divorcee who is not remarried), his under-age children (be they legitimate or not) and his parents where the latter cannot provide for themselves.Footnote ⁵⁸ The Court thus recalled that this Article applies indifferently to Hindus, Muslims, Christians or Parsees. It quoted the Quran's surat 2 (242-241), claiming that the divorced (or repudiated) wife is entitled to support or alimony (mata). Lastly, the Court expressed regret that Article 44 of the Constitution remained, on this issue, a “dead letter”. It even explicitly denounced the lack of political courage in this field, deploring the fact that “piecemeal attempts of the courts to bridge the gaps between personal laws cannot take the place of a common civil code”.Footnote ⁵⁹ The gap between the judiciary and the legislative powers is clear and it was not to be long before the Supreme Court was to see its opinion on politics confirmed.

After the Court rendered its judgement, the AIMPLB immediately put pressure on Rajiv Gandhi's government, and 19 May 1986 saw the adoption of The Muslim Women (Protection of Rights and Divorce) Act, 1986, Article 5 of which provides that unless explicitly requested by both parties, Muslim divorces shall not be governed by Articles 125 to 128 of the Code of Criminal Procedure. Its Article 3.1.a provides that the husband owes his divorced wife a “reasonable and fair provision and maintenance to be made and paid to her within the iddat period”,Footnote ⁶⁰ the latter being defined as “three menstrual courses after the date of divorce” or “three lunar months”, depending on whether the women is still menstruating or is postmenopausal. Regardless of the political reasons, at a period which was a difficult one for the Congress Party, this action of Rajiv Gandhi was overall considered as a major step backward.

The Shah Bano case echoes the course of events in the 19^th century with respect to the question of the age of consent for young girls. Beyond the acquisition of independence, this reflected the continued opposition between a modern and unifying judiciary power on the one hand and a shy political power, withdrawing when confronted with both the agitation of traditionalist Hindus and that of a reformist “minority” whose opposition is equally dangerous. Three times (in 1860, 1891, 1929) the British powers and the conservative high castes renewed their alliance against stubborn reformers, for the most part also Brahmins.

In 1860, an Age of Consent Act was adopted without difficulty, and introduced in the Criminal Code (section 375), which set at 10 the age below which sexual intercourse with a “woman” (married or not) constituted rape.Footnote ⁶¹ In the 1880s, the reformers first wanted to simply amend the Criminal Code, raising this age from 10 to 12. However, the conservatives, seeing that the British were about to accept this amendment, started a violent campaign to defend customary practices sanctioned by Shastras (insofar as a nubile girl cannot live under her father's roof, children's marriages are a recommended model). In 1890, Tilak, the great Brahmin nationalist, defended a man who had killed his ten year old wife during “legal” sexual intercourse, and attacked the “exasperated rape-law reformer”.Footnote ⁶² Eventually, a law was to be adopted, in 1891: the Age of Consent Bill.Footnote ⁶³ According to Heimsath (Reference Heimsath1964, p. 174), the violence expressed by the opposition against this law is the first explanation of the fact that no substantial social reform was voted between 1891 and 1929, date of adoption of the above mentioned Child Marriage Restraint Act.

The Judiciary did not disarm, legitimating its decisions with references to the Constitution (Articles 14 and 15Footnote ⁶⁴), to Article 125 of the Criminal Procedure Code or by an extensive interpretation of Article 3.1.a of the 1986 Act. The Supreme Court, in 2001, relied on the Constitution (The Hindu, 10 August 2003) and, in 2004, authorised a wide interpretation of Article 3.1.a: a divorced or repudiated wife was entitled to alimony (or to a substantial one-off payment) beyond the iddat period, until she remarried (Pant Reference Pant2005, p. 435).Footnote ⁶⁵ There are numerous examples of States that thus granted women plaintiffs “fair and reasonable provisions”: Kerala, Maharashtra, Gujarat, Andhra Pradesh.

Muslim civil society was deeply shaken by the needs for reform and the most conservative resistance, incarnated by the All India Muslim Personal Law Board (AIMPLB), whose legitimacy and representativity were strongly questioned in recent years.

Four other Personal Law Boards were created in a few months, including two by Muslim women. To name them briefly:Footnote ⁶⁶

All India Muslim Personal Law Board (Jadeed) (AIMPLB (Jadeed)), created in December 2004, by the Barelvi, a very small minority within the AIMPLB;

All India Shia PLB (AISPLB), created on 23 January 2005, immediately accused both by the AIMPLB and by Shiite non-religious organisations of being a creation of the Bharatiya Janata Party, the Hindu extremist organisation which supports them (Rashtriya Swayamsevak Sangh) and the United States;

All India Muslim Women PLB (AIMWPLB), created on 1 February 2005;

All India Shia Muslim Women PLB (AISMWPLB), created on 4 February of the same year, by women who were not able to find room in the AISPLB.

The All India Muslim Women PLB was immediately extremely active. As early as 27 February, the association created a “court of justice” (adalat) in Lucknow. It heard 300 women, from various cities, telling of their husbands’ brutality, the persecutions endured for non (or non conform) remission of dowries, forced marriages, and repudiations by “triple talaq”;Footnote ⁶⁷ 178 cases (or 166, depending on the source) were retained and legal proceedings were initiated (The Hindu, 27 February; Deccan Herald, 28 February).

Shortly after, in June 2005, another case came to be a centre of focus for the association: the defence of Imrana, a 28 year old young woman, mother of five children, raped by her father-in-law. A fatwa by the local religious authorities (a panchayat) – followed on 27 June with another by the Deobandi authorities – forced her to divorce her husband (whom she then had to consider as “her son”) and marry her father-in-law. The All India Muslim PLB approvedFootnote ⁶⁸ (with two dissenting voices, amongst which the only elected woman); the AIMPLB (Jadeed) followed. In January 2007, these two organisations were amongst the first to demand the expulsion from India of Taslima Nasreen, because of the article she published in the weekly magazine Outlook, “Let's Think about the Burqa”.Footnote ⁶⁹

The new Muslim feminist associations’ longest-term actions are now against the “triple talaq”. This form of repudiation is rejected by many Muslim countries (Tunisia, Turkey, Indonesia, Pakistan) but not by India, and the AIMPLB maintained it in a new marriage guide (nikahnama) published early in 2005. Although it is said that the husband must avoid “Talaq (divorce) at all costs unless the circumstances become highly compelling. In such a case, one should avoid declaring ‘Talaq’ thrice at a time”. This is in fact nothing revolutionary as it is simply written in the Quran and has been repeated endlessly by the religious authorities.Footnote ⁷⁰

It is clear that the Muslim reformist organisations – essentially feminine, but not only – are currently very active. Along with similar Hindu organisations, they are the ones fighting against the upholding of these communalist personal laws. At the same time, some of them are also asking for the adoption of a Uniform Civil Code. The Supreme Court hears them favourably, with the arsenal it has built up itself (Constitution, Code of Criminal Procedure, wide interpretation of the 1986 Act). However, it acknowledges its own limits and thus, on 10 May 2006, declared its lack of jurisdiction to pronounce itself on “the legality of the customs of polygamy, talaq and divorce practised by Muslims under personal laws” and referred the plaintiff to the legislator: “It is for Parliament to change or amend the law and judges must exercise judicial restraint” (The Hindu, 11 May 2006). The separation of powers is thus fully respected. In India, the judiciary power has, for long now, always been braver than the legislative power.

The conclusion to be drawn from this is that the Uniform Civil Code seems further away each day. The conservative authorities of the Muslim “minority”, who have the most power, continue to energetically refuse it. The most reactionary traditionalist Hindus claim to want it only to better reject anything that they consider as an unjustified privilege granted to this minority. By so doing, they move the progressive Hindus away from it and A. A. Engineer was thus right (despite an obvious exaggeration) when he wrote “All secular forces today have disowned uniform civil code as communal forces have adopted it” (Secular Perspective, 16-31 February 2005). It is necessary to further add that there was one other powerful reason for this refusal, loudly voiced for a few years, including amongst intellectuals considered as progressives: this Code is the harbinger of a western secularism, deeply atheist, which does not suit a profoundly religious India whose “secularism” means respect and protection of all religions.Footnote ⁷¹

Hence, this article is clearly about an Impossible Indian Civil Code, despite the fact that in practice and paradoxically, the Criminal Code and the legislative arsenal have been increasingly unifying the rules that guide the daily lives of India's populations.