The purpose of this article is to delve into some specific dissenting opinions on “Hindu code bill” as seen in the Written statements and Oral evidence submitted to the Hindu Law Committee in 1945.

For a brief introduction to what the Hindu code bills were about, one can refer to the wiki article here. The purpose of this piece is not to delve deep into the specifics of each of the reforms that were attempted then, i.e., on matters of inheritance, divorce, marriage etc. The purpose here is to understand the grounds based on which those who opposed this reform expressed their dissent. To understand how these dissenters saw the role of religion in their life and contrast it with the contemporary Hindu predicament where Hinduism is restricted to Puja rooms and Temple visits. Today Hindus have ceded most of the authority on matters of religion to secular authorities i.e Judiciary / Courts of law or Legislature and not necessarily left any meaningful authority with the community itself or to religious authorities within the community.

The scope of this article is restricted to specific dissenting opinions and there is no intention to capture the opinions in support of the code bill. Those interested in such opinions can review the original volume of written statements for the same (reference at the bottom of the article).

What is interesting to note here particularly is that the dissent was spread far and wide. One can find representation of various bodies from across the geographies. Lot of them were Hindus concerned about judicial overreach and they voiced opinions unequivocally in defense of what they perceived as their tradition.

In contemporary times one can see Hindu voices (particularly those of “Internet Hindus”) to have a very high drift towards reformism and an attempt is made here to throw light on vocal anti-reform pro-tradition voices from the past to understand the principles based on which they argued. The principles are still sound even if many of us may find these dissenters too regressive based on our present day values. Afterall everyone is a slave of the times that they are born into.

In our times today a lot of us Hindus have lost anchor on what it means to be a Hindu. Our imagery of Hinduism is that of a religion that doesn’t have any binding rules and that which is always open for reform. We have secularized so many parts of the religion that we are now left with a shrinking core. An attempt is made in this article to contrast this predicament with the dissenters of Hindu code bill who had a much more all-encompassing and comprehensive understanding of what it means to be religious.

Today courts routinely interpret religion and pass laws in accordance with their interpretation. The controversy surrounding the essential religious practices test is well known. The latest example being that of the Hijab issue in Karnataka where lawyers were seen reading translations of Quran during court proceedings to understand what is essential and what is not in Islam. Hindus can remember similar exercises done in the past particularly with cases like Sabarimala temple entry where courts got to decide on what is right or wrong w.r.t the temple customs of a specific temple in Kerala.

Part of the problem in ignoring the traditionalist discourse on these topics is that eventually reform will be considered an outside-in effort. Over time, tradition will lose any semblance of an authority on traditional matters and we will be left under the mercy of secular authorities to decide on everything based on their bookish understanding of tradition and their current notions of progress.

And this isn’t about delving into the past just for the sake of it. This will have contemporary relevance on many topics such as the State unilaterally deciding on increasing the age of marriage, the State considering its stance on whether same sex marriage can be approved within the bound of Hindu marriage act etc.

Not to mention the heated US gender politics where a Supreme court nominee Ketanji Brown Jackson was asked to define woman and she refused to answer saying that she isn’t a biologist. Very soon these issues would come to play in the grand theater of Indian parliaments and court rooms as well and it is important for Hindus to understand whether tradition should have any say in such matters at all or should it just be left to secular authorities to decide on behalf of Hindu tradition as well.

Even if some concerned Hindus side with the former, it is incredibly hard to argue based on traditional sources now as close to 150-200 years of outside-in reforms have happened starting with the colonial era leaving little room for natural evolution or adjustment for traditions and customs.

Understanding this dissent is also important in the context of the current vitriol on Hindu traditionalists online. Any remote defense on tradition i.e., anything that smacks of any pride of inheritance on ancestral past and culture will be followed by a barrage of questions - “What about Sati? What about Devadasi? What about Untouchability? What about the Temple entry bill?”. This is then followed by another sermon - “We shouldn’t cling onto tradition. Tradition evolves. Reform is our tradition” etc.

This is something that a lot of dissenters also faced when they protested against the Hindu Code Bill and there is something to learn from their dissent if one chooses to side with tradition and not with reform in contemporary times as well.

This opinion below is from the Ahmedabad Bar Association (Volume-1 Page 69)

“The Hindu law is based not on mere proprietary claims or on mere social fabric of family property as under English law or any other personal law but is grounded on the sacred principles of religion which have from times immemorial been the basis of conduct of a Hindu born as such throughout his life. The statutory enactment which revolutionizes these principles is fundamentally contravening the solemn promises of Her Majesty Queen Victoria’s proclamation that in matters of religion and personal law her subjects in India shall have fullest liberty”

Two things to notice here is on how a differentiation is being brought on the notion of Sacred with respect to Hindu law vs the English law. Today there is some scholarship available that argues that a lot of what goes by as the English law itself is still strongly Christian. The argument by the Bar association here is limited to the fact that a lot of what goes into the day to day of practicing Hinduism is considered sacred and an attempt to reform this goes against the Queen’s proclamation of non-interference in religious matters.

However, it is important to note that despite the Queen’s proclamation there have been significant intrusions into Hindu religion in the pre-independent era by means of legal reforms. Despite that, the fact that codifying Hindu law became a reality only in independent India and not before goes to show that it wasn’t considered as important by the administrators then as it was by the later day leadership of India starting from the 40s.

Here is the opinion of K.P.Joshi, Pleader, Poona (Pg 75, Vol 1)

“I oppose the codification of the Hindu Law on the grounds that the Smritis which are the fountains of Hindu Law form part of the Vedas. These Smritis were never the creatures of the Crown. The duty of the Crown is to simply administer the laws as laid down in the smritis. The Crown has no power invested in it to frame laws on matters dealt with in the Smritis”

Even in this case one can see Joshi trying to draw a boundary on the authority of the ruler - That rulers were administrators of law and not framers.

Below is the opinion by Sanatan Vedic Dharma Sabha, Akasheth Kava Street, Ahmedabad (Pg 83, Vol-1)

The whole move is propped up by social rebels and anti-Hindu revolutionaries against religion and culture.

This continues to play out the same way even today that those seeking reforms many a times aren’t devout and pious Hindus and they agitate only to score social justice points and not necessarily to immerse themselves in the faith.

The Hindus cannot accept or tolerate any representatives secularly elected for secular purposes, dabbling culture as embodied in their laws by their divine sages and saints and such interference is regarded as ab initio null and void.

This is an important point to note as even to this day those bodies that are making decisions on behalf of Hindus on matters of religions aren’t elected by anyone for that purpose to begin with. Neither are they trained on matters of religion.

The code robs the Hindus of the sanctity of their law, of the Sanskrit basis of their law, of the customary mouldings of the law, of the stability of the law, of the real uniformity of its divine basis, and of all the advantages of the law which has made the Hindu society live through history

While today we are told in our textbooks that Hinduism is about “Unity in Diversity”, we don’t spend as much energy in understanding what it is that enabled this Unity in the first place. How did we manage to stay united despite this diversity? This jugalbandi between laws as seen in the Smritis and the customary mouldings referred to above offers a cue to that model. Several local customs and laws based on Smritis both co-existed. None tried to annihilate or digest the other. The uniformity if any was only in the divine basis of these laws. In real life the clamor was never for uniformity and it was always about harmonizing the many diversities. Sanskrit was the language that enabled this unity in diversity and stability. Again, there is no evidence of anyone trying to annihilate the many languages spoken on this land and try to establish uniformity by means of Sanskrit supremacy or mono culture. This distinction is important to understand and digest.

The only way to utilize the wasted money, energy and talents on this new code is to make it applicable only to those who get themselves registered to be governed by it. The whole thing will then be exposed.

The Hindus have not made any demand for it nor do they need it. It is not a matter for secular legislation and in our opinion, it is beyond the sphere of the Government’s jurisdiction.

The Sabha here emphasizes again that secular Governments have no business poking into religious affairs. They also emphasize the fact that there was no popular uprising asking for these changes. It was not that hundreds of thousands of people took the streets asking for law to allow for Divorce within the ambit of Hindu marriage. There is no evidence for this kind of a public uprising. It didn’t feature in the list of demands of any popular people's rebellion all through the independence era. It is also important here to acknowledge that a lot of the dissenters do acknowledge the prevalence of Divorce as an exception management mechanism and also of Divorce having customary sanction in some communities and certain contexts. What they were revolting against is the attempt to codify and sanctify it by means of a uniform law overruling the agency of smritis and acharas/customs. These decisions were made by a small power elite that was obsessed with reforming Hinduism and Hinduism alone.  It was this overreach that was being contested.

Also just like the Income tax slab regime of today, the Sabha here proposed that the state should let people choose which Hindu code would they want to live by. That is indeed a bold proposal and sounds similar to a plebiscite. On matters like this it does appear that top-down democracy doesn't seem to reflect public opinion. Local manifestations and bottom-up mechanisms would indeed work better.

Here’s another opinion from Thakur Prasad Dubey M.A L.L.B Civil Judge, Farukkhabad, Fatehgarh (Pg 138 Vol.1)

If we examine the Hindu law bill, we will find at a mere glance that it attempts not to codify the Hindu Law but to change it and replace that law by a new one.

Codifying as understood by some of the learned men then meant to document all the myriad laws seen in Smritis and local customs (achara / sadachara). It was seen as an attempt to consolidate it all in one place. However, what was attempted in the name of codification was change and replacement and that is being contested here by Thakur Prasad Dubey.

The greatest fault assigned to our Rishis or their laws is that they have intermingled their religious and moral laws with the secular law, that they have based their positive and civil or municipal laws on their religious laws. Whether what they have done is conducive to the welfare of mankind or is it in their best interest is a matter that requires grave consideration.

What value can a law carry if it is not fundamentally based upon rules of ethics and morality and what value can the rules of ethics and morality carry if they are not ingrained in the basic principles of the religion of a people?

This line of thought is totally lost on many of us Hindus today because we ourselves have a very muddled understanding on ethics and morality today. In here, Thakur Prasad Dubey is contesting the idea of secular ethics i.e. What values does law stand for? What framework of ethics and morality governs it? And of what utility are they if they are built on a system that either has nothing to do with religion or goes decidedly against religion?

He then refers to a very fundamental distinction between Dharma and Abrahamic religions particularly Christianity.

The Dharma or religion for the Hindus is not a matter of a few minutes of stay in a temple or a church, it is the very life and being of life -life not only here but the eternal cycle of life hereafter. The Sanskrit root of Dharma is Dhr which means to sustain and Dharma is the one that sustains the entire universe and the entire sentient beings. Our laws have been planned not for this life alone but also for those that have yet to come. That there is some “Beyond” even the non-believers believe. And if our Rishis planned for that Beyond there was nothing foolish about it. There are no compartments in our Dharma. A man cannot be secular sometimes and religious at other times.

The paragraph above carries very little relevance to a lot of us Hindus today as we have “moved on” from that understanding of Dharma. While there are a lot of efforts seen today in the name of a renaissance of Dharma it is unclear if any of those efforts have an understanding of Dharma that is as clear as that voiced by Thakur Prasad Dubey here.

“There are no compartments in our Dharma. A man cannot be secular sometimes and religious at other times” - is indeed a very strong statement. An acknowledgement of the import and meaning of this would turn the contemporary worldview of today’s Hindu upside down!

Interestingly one can see something very similar in legal literature on Hindu law and Dharma.

Richard W Lariviere in his paper “Justices and Panditas: Some Ironies in Contemporary Readings of the Hindu Legal Past” captures a similar sentiment to say:

“In fact, every aspect of life is governed by Dharma, and it is wrong to assume that Dharma can be circumscribed by the categories of either religion or law. Thus, until the British invented it, there was no such thing as Hindu Law”

This is echoed in the book “Studies in Hindu Law and Dharmasastra” by Ludo Rocher and Donald Richard Davis Jr

“First, if we say that law and religion were intimately connected in traditional India, we are correct only if the statement is made from the Western point of view. It would not be accurate from the Indian point of view. The ancient Indians did not distinguish between the “law” and the “religion”; for them there was only one category: Dharma”

It is the same line of thought that is echoed here in the dissenting opinion of Thakur Prasad Dubey above.

Here is another opinion by Prof S N Dasgupta (Pg 203 /Vol-1) emphasizing on the customary nature of law.

First of all, I do not see any necessity why there should be a uniform law code for such a great country like India where different races with different legal and customary traditions live. Customs in different localities grow into law and such a growth particularly in civil institutions ought to be left to the general public opinion and should not be initiated from outside.

The point on initiation being done from “outside” recurs here as well. It is also interesting to see contemporary reformists profuse a lot of new found love for customs of indigenous peoples and minorities. However, when it comes to the customs of the majority religion the urge to codify and uniformise took over us in the Independent India era and that thinking continues to this day. Today one can hear some legal scholars argue for persistence of customary laws for indigenous peoples and argue for their autonomy in choice and plurality on personal laws. However, the power elite of that era chose against it and opted for uniformity instead. It is unclear if the power elite of this era is thinking differently on this either.

Dasgupta continues:

Introduction of this law code drives away the Hindu Smriti Sastras as governing marriage, succession and adoption and should hence be regarded as striking at the root of the basic structure of the Hindu Religion. For it is the fundamental principle of Hinduism that all Hindus should follow the Hindu Smriti Sastra which includes the time honored local customs as well. One cannot offer the new fangled code as a substitute for Hindu Sastra.

After the independent era reforms, Smriti Sastras slowly vanished from contemporary discourse. There are Hindu organizations today who host websites capturing information on Hinduism without any mention of Smritis. It is as if they never existed at all. That Smriti Sastra by definition includes time honored local customs as well is emphasized here yet again in the opinion cited above by Prof S N Dasgupta.

Below is the opinion of Mahamahopadhyaya Chandidas Nyayatarkatirtha (Pg 248, Vol-1). Here he questions the competency of the legislature to decide on religious matters. One can apply the same yardstick to the judiciary of our times as well.

The initial objection to such a legislation as the present one, is as has been repeated by us many times, that a legislature composed of heterogeneous elements - Hindus (most of whom are un-Hindus) and non-Hindus, is not competent to legislate on religious matters which are inherent in our social rites and customs, much less on Hindu religious laws which are evolved by the wise and far sighted rishis of the old from the vedic texts, the secrets of which cannot be precisely appreciated by the people of modern times who have no culture of the vedas and shastras far less any insight in them

Even if the legislature is legally competent to legislate on religious matters, its members cannot surely be considered to be qualified enough for the purpose.

Chandidas here also questions the lack of popular demand for these reforms and also the contradictory nature of having a secular body codify religious laws. He also draws attention to the early evidence of what is today called the phenomenon of HINOs - Hindus in name only.

Chandidas continues:

Even if they were so qualified, where is the demand for such reforms as have been contemplated by the Rau Committee? How many Hindus and what part of the entire Hindu population have demanded such revolutionary changes in the Hindu society? Isn't their number and proportion infinitely small? Are they Hindus properly so called? We should remind the Government and the legislators of what Sir James Witz Stephen said while enacting the Special Marriage Act in 1872 (without polluting the genuine Hindu law of marriage) -

“Be a Hindu or not as you please; but be one thing or the other. Don’t ask me to undertake the impossible task of constructing a compromise between Hinduism and non-Hinduism which will enable you to evade the necessity of knowing your own minds”

Chandidas clearly mentions that those who want to reform can as well choose a different path just as the Special marriage act was a different act that emerged separate from regular Hindu marriages. Chandidas also emphasizes again on the futility of the clamor for uniformity particularly in a religion like that of Hinduism where the conflict between customs and sastras was non-existent.

Uniformity of law may be a palatable expression, but it is doubtful whether it is possible or is a necessity or a desideratum. The Hindu sages enjoin that customs and usages of each place, if they do not go against the sastras should be kept intact

What follows is another opinion by Anantakrishna Sastri (pg 255. Vol-1) where he repeats the assertions on jurisdictional authority, prevalence of customs/sadachara as a source of authority and the role of the King as an administrator but not a maker.

Hindu Law has its basis in Hindu Dharma. The present legislative council has no jurisdiction to override the Dharma of the Hindus. The Dharma of the Hindus could be decided by the Hindus alone and that by its accredited scholars.

The only sources of legislature recognized in the Hindu jurisprudence viz., the Mimamsa Sastras are Sruti Smriti and Sadachara. Legislation is not a source of Hindu law. Even the king under Hindu law is bound by Dharma and is not a maker of Dharma. The legislature cannot claim any higher rights than the king. The judges have only interpreted the law.

This is an opinion from the Shibpur Chatuspathi (Pg 263, Vol-1) where the emphasis is on the role of Kumbha Mela in the context of change management on Dharmic matters. It is clear that those dissenting were not revolting against change per se. They were revolting against the idea of change for the sake of change and change done in violation of established protocols around managing change. One can only hope that in the years to come Kumbha Mela can regain its lost glory as a platform for such initiatives from time to time.

From times immemorial whenever it became necessary to make any change in any department, social, religious, legal or political, that was used to be done by those who were versed in the fundamental principles guiding the whole cosmic process, the existence and evolution of the human race. Through all changes of circumstances, the ideals of Hinduism were always kept in view.

These people used to come forward whenever necessary and were competent to dictate the changes to be adopted as legislators and pass them through the kings as executives. The Kumba Mela was then a meeting place of the legislators and executives to discuss about the state of the country and changes to be adopted

Here, the Shibpur Chatuspathi laments on the nature of those who occupy the position of being the “Baghya Bidhatas” of the land. This phenomenon has only worsened from 1945 to now. It is an opportune moment to reflect on these lines as we gather to celebrate Azadi ka Amrit Mahotsav

The most lamentable aspect of the present state of affairs is that the true ideals of Hindus are not known to those who are now occupying the position of their Baghya Bidhata as most of them have become westernized externally and internally and are apt to see and judge everything according to the ideals of materialism not knowing that such ideals cannot and will not be able to maintain the existence of the community in the long run as being against the fundamentals of natural laws.

N Sivaramakrishna Ayyar an advocate from Madras questions the legislative interference in personal law by drawing a contrast between the Hindu and Muslim experience then

The object of a Code is to secure uniformity of the law. Where personal law is involved, legislation should not coerce one section of the community to give up all that it holds as sacred and all tendencies which lead up to that result should be avoided and things should be settled on a broad minded policy and long term vision. Are we settling a Code for the Hindus for advancing their culture or is our attempt one to put an end to it by undermining its foundations? If the Mussalman does not want the legislature to interfere in his personal law, should not that be a pointer for us to preserve our personal law intact and allow questions under it to be settled in accordance with our scriptural authorities and treatises based on Srutis and Smritis? If we propose to follow the Srutis and the Smritis and the treatises which are based on the Smritis is it wise to get rid of elasticity for the sake of uniformity.

This contrast between a traditional system and the modern legal framework is lost on us today. The traditional system was both traditional and also “elastic” at the same time unlike the current clamor for uniformity and sameness. Traditional law was extremely context sensitive unlike its modern counterpart.

Today in some pockets of the Hindu discourse on the internet, Muslims are subject to ridicule because they follow their books and Hinduism’s supposedly liberal nature is celebrated as a contrast or as an aspirational ideal. Muslims are ridiculed by this crowd as followers of “asmani kitab”. A diatribe that is extended to Christians as well where book religion is used as a pejorative. While some of the accusations on rigidity and uniformity with respect to Abrahamic faiths aren’t misplaced it cannot be interpreted to mean Hinduism didn’t have its own rules.

In fact, if one reads through these dissenting opinions on Hindu code bill, it is clear that the liberal nature is grossly misunderstood. Elasticity of traditions doesn’t mean lack of binding rules. It just means that the rules vary from context to context. But it doesn't mean that there are no rules in Hinduism. Although Smritis may seem like codification to some, in practice, Hinduism was never uniform and always context sensitive. The diversity of customs seen as a result of sanctifying sadachara may confuse the lay observer to make it appear like there is no rhyme or rhythm behind this mind boggling diversity. It shouldn’t be misconstrued as Swecchachara i.e., “Muh life muh rulez” to use an internet slang. “Anything goes” cannot be the core tenet of any religion, not just Hinduism.

Even a half decent computer program will have rules that the programmer has to comply with before the program can be compiled and executed successfully. Even a third grade pub has rules. To imagine that an entire civilization could run for centuries together based on the liberal Hindu ideal of - “Our religion has no rules” is juvenile.

The Bar Association of Devakottal questions the ideal of “progress” (Pg 62 Vol-2)

The object of the proposed codification of Hindu Law is stated to be to evolve a uniform Code applicable to all Hindus by blending the most progressive elements in the various schools of law." "Progress" is nowhere defined, nor is it definable. The several views are not subjected to criticism. What appears "progress" at one time and under certain conditions may not be progress at other times. What is "progress" according to one view, may not be progress to others. The committee's attempt is in substance coercing one section or another. Codification interferes with the spontaneous growth and flexibility of Hindu Law. The Hindu Law is based on religion. The Code would appear to make it secular. This is interfering with the basic principles and tending to loosen the hold of religion on the Hindu mind.

Another key point here is on how outside-in codification attempts affects the spontaneous growth and flexibility of Hindu Law which is very community driven. The fact that the secular intervention of reforming a religious law has loosened the hold of religion on the Hindu mind is quite clear as we revisit these lines seven decades later. Today we tend to rationalize an act as good from the context of how it is perceived by the secular law. So long as an act isn't explicitly illegal and doesn’t land you in jail you are free to do it. Sure, look to religion for moral guidance as the case may be we acknowledge, but the deciding authority is the law book and not religion. This is the effect of the loosening of the hold of religion on the Hindu mind.

These lines by R Venkatarama Sarma, a Vakil from Pudukottai are prophetic looking at the breakneck pace at which we keep reforming ourselves based on the “current thing”. Shri Sarma also throws light here on how the idea of codifying or making something uniform flies against the ideal of natural evolution. He also emphasizes the Unity in diversity adage.

The excuse of the codifiers is that they want to evolve a uniform system for the entire Hindu fold. This is as much to make uniform any natural evolution. An attempt to make uniform any natural system of evolution will lead only to awkward results totally demoralizing the entire system. Hindu Law is the only ancient cultural law which has been lending freely for the framework of other systems. The beauty of the culture can be appreciated only by a reference to unity amidst diversity and harmony among discordance under the system. Hindu Law as administered in the various provinces are only species of a genus and to attempt to collect the species and spin out of them a united fabric of Hindu Law common to all, will be only an attempt to build a castle out of the stray bits and thereby destroy the magnificence of an ancient edifice.

This paragraph below on how we are reducing laws to the machinations of human agency also is lost on many Hindus today as we have lost an appreciation for the sacred roots of our laws. We tend to look at the entire sphere of religion as devoid of any divine or transcendental or sacred agency and would like to think it all as a human creation at a previous point in time. Hence, since the origins are from a human agency in the past, it should always be open for reform by the human agency that wields power at the current point in time. Shri Sarma’s opinion below elucidates the same.

The present codifiers are only laying the foundation for further dissensions in the country. Once a system of natural evolution is attempted to be brought under the machinations of human agency, then this will lead to a continuous attempt by the men in power, every now and then, to compete with the present champions in the name of reforms, to add to the mischiefs, which will in the end lead only to the entire annihilation of a wholesome system, religion, and community.

Whether we are on the path to entire annihilation of religion as anticipated above is debatable. However, it is suffice to say that many of us are in a state of cluelessness on what it means to lead a religious life today. A vast majority of our lives continue to operate in the secular sphere governed by a secular law devoid of allegiance to anything sacred or transcendent.

Below opinion is by an advocate from Madura:

If one desires to Muslimize Hindustan, one cannot hit upon a more effective method than promulgating the code. The draft is 90 percent Muhammadan Law. It is a thin, truncated, castrated Hindu skeleton that is still left, with eyes plucked, ears cut, nose bitten off, arms chopped and legs lopped. To call it Hindu Code is an abuse of language. The suicidal policy of Muslimizing and Westernizing the Hindu Law is writ large on every clause. What politicians hope to achieve in the political field by conceding the Frankenstein of Pakistan, legislators attempt to achieve in the Legislative field by evolving a Code of Hindu Law applicable to all the Hindus. It looks as if there is a formidable league among the politicians, the Legislators and the administrators for winning the mirage of Hindu Muslim Unity by hook or by crook.

This accusation on Muslimizing and Westernizing Hindu law needs some thought even in our times today as we look to understand the modalities of the much publicized Uniform civil code. The point made on uniting Hindus and Muslims by hook or by crook also resonates with a lot of policy decisions taken over the years. Over the years Hindus seem to have uncritically embraced Secularism while Muslims continue to resist such attempts as judicial or legislative overreach as seen in the recent past. The draft of UCC whenever it is out would be interesting to look at in the light of remarks above.

Diwan Bahadur K.S.Ramaswamy Sastri, a district and sessions judge offered a similar opinion as other dissenters:

An elastic system of law allowing the growth of healthy customs is better than a rigid Code.

This point on elasticity needs emphasis over and over again if we are to understand the difference between the UCC approach to Hindu law and Hindu law as it otherwise was.

K. S. Mehta from Madras Sowcars Association offers the below opinion where he tries to explain the role played by Varnashram Dharma in maintaining myriad local customs in the larger Hindu fold. While strict hereditary professional succession isn’t something that is followed in our society today, it is important to note that most family customs and religious education are still passed on through heredity even now. Mehta’s remarks need to be seen in that light.

We are altogether against any enactment by legislatures on our social and religious systems.

Our social and religious systems are correlated to each other and one cannot be separated from the other. Great Hindu seers established a social system called “Varnashram Dharma " on certain principles which were based on moral eternal truths and these were made available in so many different ways through various religious books. And different groups of Hindus who were coming into Hindu fold with their various religious and social traditions, were always in their own way evolving their social systems around these principles. Full freedom was given to every group to call themselves Hindus and evolve their system round those principles and thus full Hindu uniformity was established under diversity. Uptill now-era of these so-called reforming days nobody disturbed this system, though so many kings and emperors appeared and vanished on this horizon of India. We value this freedom and we resent any interference on the part of anybody. Hindu society is a free society and it does not require any social code. No social code of the world has eradicated litigation in this world but on the other hand it has increased it. In this comparison, our Hindu society stands far better than other societies.

Below opinion is from S. Subrahmanla Iyer, Advocate and President the Devakottai Branch of the All·India Varnashram Swarajya Sangh. The Varnashram Swarajya Sangh was a staunch traditionalist conservative body of that era. While one may disagree with them on their stance on some issues the emphasis here is on understanding the principles based on which they are arguing i.e., on questioning the competence of a secular authority to meddle with religion, attempting to make the law even in the absence of public demand etc. Some of the language used by them to question the credentials of reformers of that era applies to those who carry the reformist zeal in the current era as well.

The Code is the outcome of some influential, vociferous agitators who constitute a microscopic drop in the ocean of more than two hundred million Hindus, who have absolutely no faith in the revealed religion going by the name of Hinduism, who do not really lead the life of believing Hindu and who have got various ill thought out or misguided notions, however sincere they may be, regarding political, economic, social and material advancement of India and its people.

Many of them are open traducers or haters of Hindu religion and almost everything connected with Hindu culture and religion and want that Hinduism, its caste system, and its real culture should disappear. Most of the above said microscopic body of agitators belong to some political group or other such as Congress or Hindu Sabha or as self-styled social reformers or atheists, self-respectors having no regard for religion or religio-social institutions practices, customs and beliefs.

They are merely dazzled by western materialistic civilization failing to realize their devastative character in spite of open demonstration today before their very eyes. The agitation by the microscopic minority due to political or quasi-political misguided notions mostly, for codification of Hindu Law is merely artificial and is not backed by genuine demands. 99.9 percent of the people are contented with the administration of the Hindu Law as at present done by the Court in British India and Native States and have not expressed any desire for change or codification.

Here the Sangh is questioning the competence of the government in attempting this reform and emphasising on the transcendental origins of Hindu law and how it is different from other faiths.

Beyond the competence of any secular Government and much less this Government. Hindu Law is God-made law and no human agency can meddle with it. All the practices, institutions, beliefs, customs, are all based on Srutis and Smritis. No King can abolish them. They can only be expounded as they are now being done by the Sovereign through the courts. The legislature can have no higher powers than the King. It will be ultra vires of the powers of the legislature to assume the right to vary the law, especially the essential and fundamental principles and beliefs, under color of codification.

Hinduism was not founded on any one day within or beyond historic memory by any great seer like even Christ or Muhammad or Zoraster or Buddha. It is as old as God's creation and it is a revealed religion. All real Hindus believe so. At least any real Hindu believes so. The religion is there, so long as one real Hindu lives. To interfere with the religious beliefs and the religio-social institutions, customs, rights and duties based on them will amount to an act of tyranny and openly against the proclaimed intention and policy of the Sovereign not to interfere with the religious beliefs and institutions of the subjects on which alone the real hearty allegiance of the people depend. It would amount to misuse of the powers by the legislature to assume to codify Hindu Law and under its colour to coerce the people to submit to interference with their cherished rights, beliefs and faith in their religio-social institutions.

Here the Sangh questions the pursuit of uniformity by also drawing a parallel to the USA on how each state can make its own laws there in the federal spirit. If there is no uniformity even in the USA then where is the need to impose them in India is the question the Sangh is asking.

Evolving a uniform Code -Where is the virtue or compelling necessity to evolve a uniform Code of Hindu Law applicable to the whole sub-continent of India and how is uniformity a unique blessing or a virtue? Is there uniformity even in laws affecting secular matters in the several states in the world? Are the several laws prevailing in the several individual states constituting the federation of United States of America uniform in all matters? What is the disadvantage or hardship that has been felt by any appreciable section of the Hindus, and what is the evidence there for in the hands of the Government for want of a uniform Code of Hindu Laws applicable to all provinces in India?

Here the Sangh questions the ideal of progress. These are questions that we need to answer even for our times today as well as newer reformist ideas come our way today.

Uniformity which is in itself not an unmixed good or blessing is sought to be obtained by blending the most progressive elements in the authorized schools of law. What is the test or standard of progress? Is it from a spiritual point of view or material point of view? It is a most illusive, uncertain and highly controversial expression.

No two religionists can agree as to what progress is. Progress from material point of view be considered to be regress from a spiritual point of view. What is considered to be progressive or beneficial by a capitalistic society is equally strongly considered to be highly regressive, reactionary and degenerate from a socialistic point of view even in secular matters.

The only test of progress so far as religion and institutions, customs, rights and duties based on religion are concerned should be the standard set up by that religion alone and not any other.

Here is an advocate from Vijayawada/Bezavada speaking on the conservatism of Hinduism. What do Hindus want to conserve in our times now is an important question to ponder upon. What is it that is still ensuring the continuity of Hindu civilization? Are we working towards bettering that or towards destroying it? These are questions to consider.

Our first and fundamental objection is to the codification itself. Hindu Law has never been codified or promulgated by any power-political or otherwise. The very fact that it has arrived through ages without the aid of any political sanctions enforcing obedience thereto, and that the various political vicissitudes of our country have hot shaken the faith of the millions of its followers are proofs positive of its inherent virility, justice and equity.

The reply to this kind of attack is that the very survival of Hindu society is due to its conservatism. Rome, Tyre, Carthage and Athens have each in her own day reigned supreme in the world and each developed a culture, philosophy and art peculiar to herself. The representatives of those cultures are nowhere to be found on earth to-day, and the connecting links of heredity between the present inhabitants of those countries and their ancient denizens have so completely broken that it is not possible to discover whether those ancient nations left any survivors or whether they perished all of a sudden making room for peoples of alien cultures, religions and philosophies.

It is not so with Hindu society. However agnostic or indifferent or even antagonistic the present generation might be to their ancient tradition, religion and philosophy, it can still recognize its descent from the Hindus that lived in the times of the Vedas, the Upanishads, the Puranas and the Kavyas. The continuity is not yet lost. Desire for immortality is inherent in human beings but the same cannot be achieved by the preservation of this mortal frame, though the Egyptians pleased themselves by mummifying their ancestors. The desire usually exhibits and achieves itself, in a yearning for offspring.

Just as each individual parent desires that his son should inherit his fine qualities of head and heart and his physical beauty, and feels elated when he finds his own likeness in his son, each individual society, race or nation desires in a like manner to achieve immortality. This racial immortality is achieved by the preservation of the habits, customs, traditions, culture, philosophy and art peculiar to that race, and the preservation of all these presupposes racial purity by means of an unmixed and unbroken line of descent.

A race which is not conservative, which allows itself to be carried away by every new current of thought and flare of fashion soon loses its individuality and becomes extinct.

Our primary objection to the proposed Code therefore is that it cuts at the root of the Hindu tradition and belief that we are governed not by man-made law but by the smritis which are based on the srutis which in turn are divine revelation.

My only purpose is to show that such a faith in the ultimate divine origin of their law is a characteristic feature of Hindu society which is now sought to be destroyed by means of wholesale codification of Hindu Law. The bulk of the Hindu society is certainly not prepared to shake off their time-honoured traditions and beliefs and such a revolution should not be effected by a legislative fiat. It is very easy to shatter a faith but very difficult to create one.

Once this faith is shattered, most of the provisions of the proposed Code will appear very reasonable and very much in conformity with modern civilized ideas.

As seen above it is easy to shatter a faith but difficult to create it all over. As always destruction is easier, construction is tougher in orders of magnitude. This tussle between modernity and tradition is under studied in our times today. Perhaps because a lot of our intellectual class themselves lack any faith in the divine origins of anything Hindu to begin with.

These are the opinions by an Ad-hoc committee on Hindu Law formed in Vizagapatnam. What is interesting here is that this ad hoc committee has taken pains to go through the origins of codification in the context of European law and uses arguments from that study in defense of their position of Hindu code bill. The emphasis here also is on the power of the internal forces of national consciousness defining the religious laws than a top- down interference by the legislature.

Bentham is responsible for the invention of the word Codification by which he meant a complete and self sufficing digest of laws. If Bentham was the apostle of codification, Savigny was its chief opponent in Europe.

Savigny warned his countrymen against hasty and inconsiderate following of foreign models which are hastily put together, their authors having only a superficial knowledge of the subjects with which they dealt; they were full of blunders and defects. Savigny was opposed to the principle of codification itself. His desire was that the law should be gradually developed by the silent internal forces of national consciousness with the least possible interference by the legislature.

Below opinion is from someone in Lahore. Since these dissenting opinions were given prior to partition, there were a significant number of vocal and concerned Hindus from Pakistan as well who spoke up. These words are by Pandit Netramani Sharma, Maithani Professor of Dharmashastra, M.K.S.D. Vidyapith, Lahore.

On going through the Draft Hindu Code and contemplating on its need and results I came to the conclusion that it is really a draft for seeking opinion without any real attempt to give it the shape of law. I can say with strength that no worthwhile Hindu would agree to its principles, and such mischievous law can be framed only by those who have no respect for Dharma shastra and who do not accept Vedas and Smritis which are the main pillars of Hindu religion as the authority. If it was really an attempt to codify and clarify the Hindu Law, it could have been done by calling a meeting of the learned Pandits from all parts of the country who can interpret the meaning of Dharma shastra and then see how far there was scope to combine them all in one. I am really surprised that those things which do not occur in Hindu Law in any part of the country have been thrust in in the name of codification. Is it codification or an attempt to root out the Hindu Law?

Netramani Sharma also questioned on why the urge to codify is being thrust on the Indian people only now and never before.

No king (Jain, Budh, Muhammadan or Moghul who was deadly against and opposed to the Vedas) ever tried to do what is being done by those who bear the name of Hindus and I do not hope that the Government will take the responsibility of making such a law for Hindus.

That brings to an end to the survey on these dissenting opinions. The idea here is not to trigger anyone in the Ambedkarite mould of Educate. Agitate. Organize. This is not a topic that demands that kind of engagement either and there is no point taking to the streets in our times today on changes done several decades ago. That is not the intent here. It is just an attempt to throw light on a forgotten chapter of our history where there was a lot of Hindu traditionalist dissent. So the correct framing of the intent behind writing this article perhaps is -  Educate. Be Aware. Engage with the world.

In our times today, a lot of public space discourse on Hindu matters particularly on the English Internet is conducted by reformist voices. Traditionalist Hindus also do need to participate in such. If one looks at the dissenting opinions on Hindu code bill it is clear that many of our traditionalist ancestors did engage with the world outside on matters that they considered important.

Part of the effort here has been to demonstrate how this resistance was spread across the country and how those who voiced dissent were common folks and not necessarily those who were involved in the political side of the freedom movement.

 

References

Other suggested readings

Codified Hindu Law: Myth and Reality - Madhu Kishwar

 https://www.jstor.org/stable/4401625

 

 

Image provided by the author.