Decoding the Codes: Why Does India Have More Than One Civil Code?

As parliamentary elections in India get underway, one of the debates to resurface is the controversy surrounding the Uniform Civil Code. In a nutshell, the idea to standardize the law for all Indian citizens boils down mostly to doing away with a set of separate laws governing marriage, guardianship, and inheritance of the Muslim community. In India, it is mostly – though not only – this minority that retains separate laws.

The issue of the Uniform Civil Code is often raised by the Hindu nationalist Bharatiya Janata Party (BJP), while the code reform would affect Muslims most directly. The promise to implement a Uniform Civil Code was included in the BJP’s current electoral manifesto. The question has thus become one of the central measures of India’s political divide. The right (which effectively means the BJP) supports the idea, while a large part of the left opposes it.

A part of the left sees the idea of the code as another step toward majoritarianism: a move that would do away with part of the Muslim community’s autonomy and strengthen the Hindu right’s dominance. The right, in turn, evokes the idea of equality of law and women’s rights, pointing out that separate Muslim laws concerning marriage, guardianship, and inheritance are more conservative than the code for the rest of Indians – conservative in the sense that they award fewer rights to women than other codes (which they do).

Both sides bring to the fore certain moral ideas – in one case, the idea to safeguard minority rights against majoritarianism, and in the other, the idea of equality and of women’s rights. At the same time, both sides accuse the other of pandering to a certain electorate while using the façade of these morals. The BJP’s supporters say that the opposition to the idea of a Uniform Civil Code is being promoted in hopes to acquire Muslim votes. The critics of the BJP, in turn, say that the ruling party is playing up the idea of a Uniform Civil Code to garner Hindu votes, rather than to genuinely help Muslim women.

But apart from this evolving debate, it is worth pointing out that it is yet another chapter in a long debate on the standardization of Indian law. Other such debates, with many differences of course, were had during British colonial rule.

There was, obviously, no uniform code of laws in India before the colonial period, as India wasn’t one state. Moreover, this diversity of legal systems went far beyond the Hindu/Muslim divide. There were in fact many regional local Hindu traditions until the subcontinent came under British colonial rule. Once that happened, the British attempted to standardize the law, although only to certain degree, only in certain periods of their rule, and altogether in a rather haphazard way.

First of all, the British did impose their own criminal law, but at first did not try to alter the marriage, guardianship, and inheritance laws (which together came to be called the “civil code”). Avoiding changes in the civil codes was, at that time, an effort to avoid further antagonizing religious radicals and conservatives, among whom British rule was not especially popular anyway.

The British did ultimately begin to standardize the civil code, but in doing so displayed a puzzling misreading of certain Indian legal practices. The direction taken in the 19th century was to standardize each civil code into one block representing a larger religious community. Thus, the objective was not to reach a common civil code across India but to reach a civil code for every major religious group. There weren’t to be separate sets of laws for various Muslim communities (understood regionally or as broader sects, such as Sunnis and Shias) but instead what was established was one set of laws for all Indian Muslims. The same was done for Parsis and the Europeans living in India.

To make matters even more complex, given the many local Hindu legal traditions two Hindu civil codes were established. This was the most puzzling part of colonial legal reform – and one that was criticized by Werner Menski in his study, “Hindu Law. Beyond Tradition and Modernity.” As the author pointed out, the British authorities arbitrarily decided that two 12th century commentaries on law – Mitakshara and Dayabhaga – were to be understood as the basis for two Hindu civil codes in India. While the two texts apparently did have the status of legal authority in some regions, and thus can’t be understood to be totally random choices, the problems with this decision were still plenty.

For instance, there were regions, such as South India, where legal traditions other than those harking back to Mitakshara and Dayabhaga were followed. Moreover, Mitakshara and Dayabhaga are now understood to be normative – they weren’t, it seems, written as codes of laws, but as commentaries in which authors discussed what form law should, in their view, take.

The arbitrary way by which these two legal traditions were extended to cover all of India led to a situation described in M. Hidayatullah’s autobiography, “My Own Boswell.” Two groups of one tribe, living on two different sides of a river, were found to follow two separate sets of laws. A historical inquiry was launched to sort out whether the tribe had perhaps migrated from one side of the river to another – in the view of authorities, one community should have followed one code of laws and thus the origins of the tribe were supposed to establish the code the tribe was to follow.

And yet, despite the haphazard and arbitrary way in which the British chose to build two Hindu civil codes on these shaky foundations, legal cases were referred to them until the practice became a new law. As Menski puts it,

However, [despite all these apprehensions], the constructed image of separate school [of law] traditions was continued, and the differences were in fact soon enshrined in case law, confirming that British judges, rather than native experts, at the end of the day, established ‘the law’. … Hindu law is [was] what the British judges declare[d] it to be, a construct that is neither Hindu law proper, nor English law.

Eventually, in 1947 independent India inherited separate civil codes for major religious groups, including two for the dominant Hindus. A few years after independence, the Socialist government of the Indian National Congress under Jawaharlal Nehru carried the colonial era reform further by standardizing the Hindu civil codes into one. This was achieved in stages and after overcoming vehement opposition from sections of the Hindu right.

Ironically, at that time it was a part of the Hindu right that opposed the standardizing reform, since the effort was affecting Hindu traditions, not Muslim ones. Equally ironically, at that time it was the left that was supporting the reform – and eventually pushed it through – in the name of the same ethical values being raised by the right now: equality and women’s rights.

However, Nehru’s Congress government shied away from taking the next step and condensing all of the remaining community civil codes into one uniform code. The main reason for this, arguably, was fear of Muslim opposition to reforming their laws.

Thus, over a period lasting more than last two centuries, Indian law has undergone a continuous, albeit haphazard and at times arbitrary,  process toward standardization. From this perspective, reaching a Uniform Civil Code would be the final stage of this standardization process.

I am not suggesting that because the process has been going on for so long, and has been chaotic at times, that it shouldn’t have happened at all. Eventually, when seen in hindsight only, even the colonial reforms represented a set of steps toward equality. But if the history of these reforms is to teach us anything, it is that that the “how” matters as much as the “why.”

The original British plan was to establish a code for each community – to make law first of all more homogenous, but still hewing to religious community lines. The aim was not to make all citizens equal before the law. Over time, especially in the post-independence era, this process of standardization was connected to a laudable moral idea: the equality of women and men before the law. This idea was not the original reason for the homogenizing efforts in 19th century.

Even though the British legal reforms proved to be arbitrary and were not aimed at bettering the conditions of Indian women, they actually did – in a certain way and not by design – pave the way for further post-independence legal reforms that did make Hindu women equal to Hindu men (in legal theory, that is). But at the same time it must be added that an effort to reduce the arbitrariness of reforms – an effort to look at people’s lives and practices, rather than just at whole communities and their traditions – is needed to make such changes in law more fair.

One can only hope that the final result of the current dispute over the Uniform Civil Code – beyond the political divide in which it takes place – will not be the ruling party scoring a political goal against a religious minority, but the betterment of legal conditions of Indian women: in this case, Indian Muslim women.