http://www.indianexpress.com/news/of-reform-and-resistance/453151/
Of reform and resistance Inder Malhotra Posted online: Friday , May 01, 2009 at 0003 hrs Only the surviving witnesses to the era know how crucial a role the Hindu Code Bill, aimed at a comprehensive reform and codification of Hindu personal law, played in this country’s political evolution in the early years of Independence. The relentless, often bitter, fight over this hyper-controversial legislation also settled the delicate issue of Presidential powers under the Constitution. To drastically summarise the fascinating story, the Hindu Code Bill was a logical outcome of the struggle since the 19th century for reform of Hindu personal law and social customs that had already given the country laws against child marriages and for widow remarriage. There was rampant confusion about what exactly the Hindu law was. Verdicts on its various facets were scattered over countless and sometimes contradictory judgments of Britain’s Privy Council. However, by the time the voluminous Hindu Code Bill was ready in 1948, vociferous opposition to it had risen to a crescendo. For instance, Shyama Prasad Mukherjee who hadn’t said a word against the Hindu Code while he was a member of Jawaharlal Nehru’s cabinet (1947-50) thundered in 1951 that the Bill would “shatter the magnificent architecture of the Hindu culture”. By then he had founded the Jan Sangh, the forerunner of the BJP. Equally passionate in the Hindu Code’s defence were its supporters, with Nehru and his extremely able law minister, B. R. Ambedkar, in the forefront. The battle lines were clearly drawn, and neither side was prepared to give in. But primarily because the opposition to the Hindu Code within the Congress party was strong and widespread, its progress was glacially slow. In December 1949, when the Constituent Assembly, doubling as the Central Legislative Assembly, discussed it at length, 23 out of the 28 members who spoke were opposed to it. Most of them were Congressmen. Soon thereafter, India became a republic, and the Constituent Assembly yielded place to the provisional Parliament. The Bill lapsed but was immediately reintroduced in the new House. Ironically, this brought into play President Rajendra Prasad who was an inveterate opponent of the Hindu Code and had repeatedly told Nehru that it must not be passed. As it happened, it was on a relatively minor matter that the President fired his first shot. On receiving the draft of his address to Parliament, he wrote to the prime minister to drop the reference in it “to the passing of the Hindu Code Bill in this session”. Nehru firmly refused. In the previous article (April 17) Prasad’s various objections to the Hindu Code, including his threat to withhold assent to it even if it was passed, have been discussed. Nehru, backed by the opinion of the then Attorney-General, M. C. Setalvad, had made it clear to the President that in discharge of his functions he had to be guided by the “aid and advice” of his council of ministers. The prime minister had also put paid to the President’s desire to send a message to Parliament outlining his “fundamental” objections to the Hindu Code Bill by the simple expedient of threatening to resign himself. Setalvad, in his autobiography, Story of My Life (1970) has recorded that since the Indian system is modelled on the Westminster parliamentary democracy, his study of the British constitutional conventions and case law established that the position of the Indian president was no different from that of the British monarch. Both must act according to advice of council of ministers “except in the extremely rare situation when the council might not exist”. He also refused to accept President Prasad’s argument that the provisional Parliament, elected on a restricted franchise, had no right to make “such revolutionary changes” as the Hindu Code Bill did. Setalvad asserted that the provisional Parliament was a “continuation of the constituent assembly that had enacted the entire Constitution”. Another eminent jurist, Alladi Krishnaswami Aiyar, was of exactly the same view. And some years later the Supreme Court broadly endorsed their position. As the session during which, according to the President’s address, the Hindu Code Bill was to be passed began in the first week of August 1951, Ambedkar grew restive because of the Congress party’s growing pressure on the prime minister to defer it. He requested Nehru that the debate on the Hindu Code should begin immediately and at least the part dealing with marriage, divorce and monogamy be enacted. Nehru agreed but pointed out that discussion could start only on September 5. Actually it began only on September 10. Seven days later it became clear that the Congress party did not want to adopt any part of the measure before the general election. Ambedkar resigned on September 27. On October 11, he was prevented from making a statement on reasons for his resignation because he wouldn’t submit a copy to the Chair. Walking out in protest, he distributed the statement to the then compact press corps. In it, apart from other things, he gave vent to his frustration over the Hindu Code having been “killed, despite Nehru’s sincerity in supporting it”. Privately, he blamed Satyendra Narayan Sinha, the Congress chief whip for “convincing” the prime minister to put the Hindu Code on hold. Actually, Nehru had attached greater importance to the advice of his minister without portfolio, N. Gopalaswami Iyengar, who had written: “There is nothing to be lost, and everything to be gained by deferring it (the Bill) to sometime after the elections”. Eventually, all parts of the Hindu Code Bill were passed, piecemeal and in slow stages, and President Prasad gave assent to them all, but not before an extraordinary event in the post-1952 Lok Sabha. Sarojini Naidu’s son and an eloquent first-time Leftist MP, J. Jaisooriya, ended his maiden speech with the words: “Sir, the honourable prime minister had assured us that his government would stand or fall by the Hindu Code. The Hindu Code has fallen but the government, to quote the famous Rampur telegram to Hakim Ajmal Khan, still stands”. There was a huge outburst of hilarity in the House. Nehru was one of the few members bewildered by it. Until Rafi Ahmed Kidwai explained to him that the telegram in question had bewailed the excessive consequences of an aphrodisiac. The writer is a Delhi-based political commentator ------------------------------------ ---- INFORMATION OVERLOAD? Get all ZESTCaste mails sent out in a span of 24 hours in a single mail. 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