~ By Vikramjit Banerjee

After nearly 70 years of independence the question arises where do we see Hindu law proceeding towards. Hindu law, after the codification project in the 1950s, is again at a crossroads. The question now is not so much as to how to make Hindu law progressive but whether by making the law progressive, we are losing the essence of Hindu law.

Progressiveness in Hindu law has always been attached to two subjects, (a) the question of its treatment of women, and (b) the question of treatment of its castes or jatis, traditionally deemed low in the hierarchy. The question of the first has largely been solved by bringing in large-scale changes in to Hindu law through statute. This has resulted in the status of women being made at par with international standards. No doubt that this has resulted in damage to family structures but the allegation that Hindu law discriminates against women does not seem to find as much resonance as it used to find before.

The question as to how to deal with broader questions of inequality which exists as part of Hindu tradition is something which needs to be confronted. It is the view of this author that the future of Hindu law will be written in this new arena of contradiction between the continuous clamour to have equality and the continuous pull of tradition, which have for a long period of time treated groups of people differently based on their birth.

The last question which arises out of this broad discussion is what is the best method through which this equalisation can take place and how to formulate a system which would not lose the essence of Hindu tradition while making it egalitarian in its approach towards all adherents of its faith.

This paper will deal with four broad issues in relation to Hindu law, namely (a) the question of wider consultation while formulating changes to Hindu law , (b) the question of making temples centres of Hindu society while at the same time ensuring that being public places, there is no scope for discrimination in its structure , (c) the question of whether codification is a solution to the continuous problems of Hindu law or whether it is time for us to go beyond mere codification and (d) the question as to whether Hindu law may be de-legalised .

The question of wider consultation while formulating changes to Hindu law.

We have seen time and again that wide scale changes have been made to Hindu law without ever consulting Hindus. It has been an article of faith of the honourable Supreme Court that personal law are not subject to fundamental rights because personal laws are not law for the purposes of Article 13 of the Constitution of India. The catena of cases which continues to the present day through a large number of judgements of the Supreme Court[1] would indicate that it is the view of the Court that personal laws are not subject to fundamental rights enumerated in the Constitution since personal law is not strictly law. At the same time we have seen wide scale changes being brought in Hindu law by legislation by the State without any consultation.

Since the first modern codification of Hindu law was brought about in the early 1950s there has been huge changes which have been initiated within Hindu law. This has resulted in both the enhancement of the status of a woman within the family and has also resulted in changing the focus of a family from a composite unit to a social arrangement of independent individuals. It is a different question altogether whether the said changes have actually benefitted women outside the limited periphery of relatively independent women of a certain section of society.

In Hindu law marriage is a sacrament. The government through legislation has changed the very nature of marriage by allowing extensive changes in the concept of marriage in society. The process through which norms and laws of divorce have been loosened making it easy for people to break out of the norms of marriage has been unparalleled in the last 1000 years. The extensive intervention in the question of succession rights has also resulted in creating and accentuating issues which have resulted in fracturing of the family. The result of this wide ranging intervention has been that the concept of joint family has almost disappeared and has increasingly been replaced by nuclear families in urban areas of India .

However these extensive changes have been initiated without consultation with the wider Hindu society. It seems to have been taken for granted that the logic which was behind the initiation of the first Hindu Code still holds valid today. The state it seems has gone out of its way to ensure that the bearers of tradition, whether it be religious or social are excluded from the process of formulation of such personal laws on the ground that they would be impediments to change , even though such institutions have a wide impact on society. On the other hand the state has gone out of its way to consult non-governmental organisations which are perceived by the state to be progressive. These ‘progressive’ elements are far removed from Indian reality and have very little impact on formulation of social norms. It is also surprising that this process of using external catalysts completely alien to Hindu society and tradition are only being used for making changes in Hindu law and not for making changes in family and personal law of other religions. In fact it is apparent that the government has reacted to social and religious pressures while dealing with personal law of other religions. This unilateral approach has resulted in cleavage within the Hindu society whereby the laws which have been framed for society do not reflect the societal reality. This unfortunate creation of laws disconnected from the underlying undercurrents within society has resulted in unintended but grave consequences on those very people whom the laws were supposed to protect. The increasing misuse of criminal law to target other women in the family of a husband by a disaffected wife because they seem to be the most vulnerable arises out of this complete incomprehension of the state of social realities.

No doubt that there are changes which are required in Hindu law and no doubt that such changes are long time coming but such changes cannot be brought in by government fiat alone; there has to be generation of social will for such changes. It is important to remember that whenever wide scale changes in Hindu law have been initiated, the prime movers of such changes have been from within Hindu society, for e.g. Ishwar Chandra Vidyasagar and Baba Saheb Ambedkar. The process of initiation of debate and the dissemination of ideas fundamentally changed people’s views of certain laws which were discriminatory. The government, it seems today, is not interested in the debate but is more interested in surreptitiously making changes in Hindu law to the exclusion of other personal laws.

It is important therefore that a process be initiated whereby the government is mandated to consult religious and social groups before bringing in changes into Hindu law in future. The structure so created may be a representative structure or a board or it may be a method whereby different groups may be consulted but it is imperative that such a structure through statutory backing must be created for the future.

The question of making temples centres of Hindu society while at the same time ensuring that being public places, there is no scope for discrimination in its structure.

There are essentially two parts to this question. The first part deals with the question as to how Hindu temples, which have been taken over by the government either because of disputes or because of the public interest, be returned to the people and what sort of governance structure be put in place once these temples have been returned to Hindu society. The second part is how to make worship of an increasingly egalitarian faith equal. Needless to say this is still a huge challenge and remains a key element in creating a society with less hereditary privileges. Considering how contentious the second issue is, it would be perhaps proper that a separate paper be presented on it. However for the purposes of this paper a broad outline is only indicated as to how possibly an attempt to create uniformity may be the first step towards a broader reworking of the entire process.

In relation to the first question, it is important to understand that most of today’s big Hindu temples in India are governed by the state. This has led to a situation whereby Hindu religion has been de-facto nationalised. It does not mean however that Hindu religion has been given a special status under the Constitution but that the major places of worship as well as the wealth generated out of such worship and the disbursal of the same has not remained in the hands of Hindu society but has been transferred into the hands of the government. Prima facie it is obvious that the said arrangement is contrary to strict secularism. It also creates a situation where vis-a-vis other religions Hindus feel discriminated. It is also a matter of continuing incomprehension as to why the wealth of the community which has been given for a religious purpose is used by the state for secular and nonreligious ends. No doubt that the wealth generated may rightly be used for social upliftment but the question is as to whether the Hindu community should have a say both in setting its priorities as well as it’s ends. It is also well known that temples have been the centres of Hindu community for thousands of years. The attempt of various different competing colonial regimes have been to destroy or remove from control of Hindus their temples. At the time of foreign colonialism, this thinking may have been a much hated but nonetheless an effective tool of governing the people but it is surprising that in independent India under the governing credo of secularism, such practices continue.

It is suggested that it is time that governments return temples, some of which have been ostensibly taken over temporarily but factually permanently, to the Hindu community. The method of governance of these temples once they are returned needs to be discussed threadbare. There are two broad models which may be taken up for consideration, either a territorial model based upon the state and or at the national level which would be a representative in nature which would govern all the public temples on the lines of the Shiromani Gurudwara Prabandhak Committee or a shrine specific model again which should be representative in nature like the one at Vaishno Devi , Tirupati and Amarnath. However the role of the state, which has been the hallmark of the shrine specific model, should be reduced to a minimum. It is suggested that a statutory framework of the same should be formulated either as a model bill or as a comprehensive one. Needless to say that the composition of the representation should be truly egalitarian and it is suggested that it should also include provisions of affirmative action so that the same may be truly inclusive. Such a step, as making public temples truly inclusive, would be in consonance with Article 25 (2) (b) of the Indian Constitution which mandates that the government throw open Hindu religious institutions of a public character to all classes and sections of Hindus.

The second part is the question of equalisation or the de-priviligesation of worship. While accepting that there is a private nature to faith and religion, it is also important to recognise that increasingly Hindu religion and the exercise of Hindu religion is a public act. It is also important to recognise that public Hindu temples as distinguished from private Hindu temples are by their very definition should be made accessible to every Hindu. It is important to ensure that there is no scope for discrimination of any sort on grounds of social inequality in any Hindu temple. If needed it is crucial that the said changes be brought about through statute in the exercise of Raj Dharma of the state.

The second aspect of the said right to worship is the right to equalisation of opportunity to being priests at public temples. There is no doubt that all rituals in different temples are highly specialised and that such rituals take a large number of years to perfect. There is also no detracting from the fact that such rituals need to be performed in consonance with age old tradition, custom and norms. However over a period of time, the performance of such rituals and the right to perform them have become hereditary. Just as it would be incorrect to assume that someone merely learned in Sanskrit would be able to perform the rituals exactly, it would also be a mistake to assume that those who are born into a certain family would be able to perform the rituals better than those who are not from the family. It is suggested as a first step that the qualifications of priests in Hindu temples be standardised. This could either be in the form of a degree or in the form of an examination. However to be able to take the position of a priest in any public temple there should be a large period of apprenticeship which would allow a novice to learn and internalise the specific rituals of the temple in which he would conducts worship.

The reforms in priesthood as has been mandated by the Supreme Court is not contrary to Hindu religion and is an important step to ensure egalitarianism within the religion[2].

The question of whether codification is a solution to the continuous problems of Hindu law or whether it is time for us to go beyond mere codification.

The codification of laws is a gift to India by the British. The laws as we know them today whether they be in criminal law or commercial Law or in personal law are a product of westernisation of India’s jurisprudence.

There is nothing per se incorrect with codification. Codification produces uniformity and standardisation. Codification also reduces arbitrariness. Therefore, in a modern democracy codification of laws is the cornerstone of constitutionalism. However codification of personal laws has done more harm than good in India.

The reason why codification of personal laws in India is harmful to Indian society was because the process of standardisation of norms which is the basis for codification was done without trying to find out the reality of the validity and applicability of such norms in practice. As is now well known the first formulation of a codified law was done by the British and all subsequent changes including the acts collectively known as the Hindu Code were done in pursuance of a modernist understanding of Indian society. It differed greatly from what was practised on the ground. This resulted in an anomalous situation whereby instead of incorporating flexibility which is the key to family relationships the law added rigidity. Numerous social customs which was the basis of Hindu law and which gave it flexibility to deal with various different situations arising in society were at a single stroke removed by the Hindu Code. This removed, at a single moment, the tools which would have been available to those adjudging those disputes to come to a fair and equitable conclusion.

The biggest argument towards codification of personal law has been that it has brought in equality in Hindu personal laws. However it is suggested that instead of codification if the personal laws were made subject to the fundamental rights and equality provisions of the Constitution as is clearly made out in Article 25 of the Constitution and the same were implemented strictly, the flexibility of the tradition as well as the imperative of modern equality would have been maintained. The random standardisation of Hindu law without contextualisation has resulted in complete disjunction of reality, tradition, actual practice and textual norms. It is time possibly to look outside the box for comprehensive solutions.

The question as to whether Hindu law may be de-legalised

The other big question which is related to the de-codification of Hindu law is the related idea of de-legalisation and removing the Judiciary from an area which it is ill-equipped to handle, namely family relationships.

Family by nature is a product of society and the unit on which a society is constructed. The insertion of a rights in the family structure has led to more damage than good. The exercise of these rights has been through the courts of law. This in turn has led to the situation where the entire process of living in a family has been legalised. Every aspect of one’s living in a family structure has now been made subject to some form of legal regulation. This has on one hand increased legal intervention in the family and on the other hand has also resulted in exacerbating differences between the family members. It has also resulted in providing tools to members of the family to destroy the family as a unit. The ostensible reason for doing this, as made out by progressives, is to set right the inherent imbalance of power which exists within the family. The resultant fallout of such misguided intervention has been that the family structure in the urban areas of India is increasingly collapsing. In Western countries where there is the provision of social security, the collapse of the family may be set off against the safety net provided by the state. However in India where there is no social security the collapse of the family has a disastrous impact on the weakest members of the family. The process of approaching the court which seems a remedy in the short run, being easily available, turns out to be a mirage in the long run. The Courts are also ill-equipped and completely at a loss on how to handle family relationships which is the keystone of personal laws .It is therefore suggested that it is also time that we explore as to whether the dispute resolution mechanism of Hindu personal law be brought out of the courts and given to social dispute resolution mechanisms. The details of what would be adequate and what would keep interests of all stakeholders in mind may have to be formulated after deeper and wider consultation but it is time to see whether alternative dispute resolution mechanisms may be a better method to solve family disputes in Hindu Law. It is also to be specifically noted here that even if such resolution mechanisms are taken out of the purview of the courts the same would be subject to supervision of the courts under article 226 of the Constitution of India and therefore must comply with constitutional norms and fundamental rights. The chance of such dispute resolution mechanisms taking any action which would go contrary to accepted norms of equality would therefore be completely mitigated.

CONCLUSION

In the end it is important to note that a long time has passed since the Hindu Code has come into effect. We have been able to note its disadvantages as well as its advantages. The disadvantages which we brought upon ourselves in the Hindu Code needs to be remedied by tools which are available to us. On the other hand there is an impending need to make Hindu religion and Hindu law even more inclusive and non-discriminatory. The future lies in the road whereby we would be able to wed the twin ideals of tradition and constitutional obligations in holistic manner. This article is hopefully an initiator of discussion towards that path.

The author is an advocate at Supreme Court of India and also Advocate General of Nagaland. The views expressed are his own.

(This article appeared in India Foundation Journal, May-June 2016 issue.)

[1] Riju Prasad Sarma v. State of Assam 2015 (9) SCC 461.

[2] N. Adithyan v. Travancore Devaswom Board 2002 (8) SCC 106