Introduction
Framed in response to colonial rule and the processes that brought it to an end, ‘creation myths’ about the birth of the nation and the origins of citizenship have been crucial for the construction of post-colonial Indian identity. Accounts of an ancient and glorious Indian nation, superior to its colonial successor, were well developed long before the emergence of the mass nationalist movement in the interwar period. However, as preparations began for the planned and ‘peaceful’ transfer of power from British to Indian hands, these myths were redefined in relation to the political structures emerging at this moment.Footnote 1 ‘Long years ago’, Nehru said in his famous address of 14 August 1947, ‘we made a tryst with destiny. . . . At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom. A moment comes, which comes but rarely in history, when we step out from the old to the new, when an age ends, and when the soul of a nation, long suppressed, finds utterance’.Footnote 2 While British rule had subjugated and silenced the India nation, independence gave it a powerful new vehicle for its voice—the state.
The effects of this fusion, of nation and state, had legacies that went beyond the realm of myth. In drawing up a constitution for the new nation-state, legislators retained much of the framework of the colonial state—the constitution of 1950 included no fewer than two hundred clauses of the 1935 Government of India Act. At the same time, the framers of the constitution were clear that this was not simply a continuation of the old British state. A list of Fundamental Rights, granting equal rights to all citizens, regardless of gender, caste or religious identity, was heralded, both within India and internationally, as a sign of the state's transformation.Footnote 3 The Rights seemed to embody the important change that independence had brought about. Whereas previously the state had been the oppressive tool of an alien power, it was recast as the guarantor of equality and welfare-provision for Indians who were now no longer ‘subjects’ but ‘citizens’.
The idea that independence did, or even could, transform the relationship between Indian society and the state has influenced Indian citizens’ expectations of the nation-state. Twenty-five years after independence, the Government of India appointed a team of academics and social workers to look into and review the way that the Fundamental Rights had impacted upon and affected the lives of Indian women. The Committee's terms of reference emphasized the many social changes that had taken place since independence, and its remit was to advise on new policies to help women. However, in its report published in 1974 under the title Towards Equality, the Committee called for new programmes to assist in the implementation not of new rights for women, but of the existing ones. ‘Our investigation has revealed that large masses of women in this country have remained unaffected by the rights guaranteed to them by the Constitution and the laws enacted since Independence’ it reported to Professor S. Nurul Hasan, then Minister for Education and Social Welfare.Footnote 4 That this seems to have come as a surprise is indicative of a wider faith in the transformation wrought to Indian society by the supposed realignment of the Indian state in the interests of the nation.
The historical origins of Indian individual rights and welfare claims have been linked to interwar debates about personal law reform and women's rights.Footnote 5 The period between the great wars witnessed growing legislative interest in the subject of women's rights. This interest came not so much from government representatives but from the many new Indian representatives, brought into the legislatures following constitutional reform. Most recently, Mrinalini Sinha has argued that it was debates about women's rights as child brides that helped to give rise to a new kind of citizenship and welfarism amongst Indian nationalists.Footnote 6 Focussing on the individual female child bride, Sinha argues that the Child Marriage Restraint Act (known more commonly as the Sarda Act, after its sponsor) was revolutionary. Though the Act itself was highly ineffective once passed,Footnote 7 the political campaigns and international attention surrounding its introduction to the legislature were, she argues, crucial for creating the space within which to think about a new kind of legal framework. Cutting through the hierarchy of religious law in which a person's rights were circumscribed by their age, religious and caste identity, the Act acknowledged the state's responsibility to an individual citizen. Secondly, committing the state to securing and defending the individual rights of its female citizens against male transgressors, Sinha argues that the Sarda Act was fundamental in developing nationalist thinking about ‘positive discrimination’ and, eventually, the formulation of Fundamental Rights.
While agreeing that the passage of the Sarda Act marked a seminal moment in the debate about rights and the evolution of Indian citizenship, this paper will also show why this measure, and the Fundamental Rights themselves, have failed to bring about the on-the-ground changes many expected in gender equality. It argues that, in order to understand the interwar debates about women's rights, and their post-colonial legacy, we must place them within a wider context of a shift in Indian, and especially Hindu, patriarchy.Footnote 8 Previous studies of the development of women's legal rights in India have focused on the debates that, at first glance, were of greatest pertinence to women's lives, particularly questions about marriage and the age of consent. This has served to eclipse another, highly important issue in early twentieth-century debates about personal law: property rights.Footnote 9 The argument presented here is not simply that other strands of the social reform debate are worthy of interest, academic or otherwise, but rather that the debate about property rights formed the crucial framework within which social and family reform were contemplated and discussed. The first part of this paper sketches the impact of colonial governance on Indian patriarchy, showing how British rule helped to heighten hierarchical structures of male control across the subcontinent. It goes on to show how growing competition between groups of men, and attempts to alter patriarchal structures, often raised questions about women's place within the family. Creating opportunities for a greater number of Indian men to access state power, devolution encouraged the movement of these debates into the legislatures, where they became intertwined with ongoing discussions about Indian fitness to rule and political representation. Though Indian women formed a pivot point for these debates, closer examination of the reform bills proposed during this time show that these measures often had less to do with equality between men and women than with power relations between different groups of men. Indeed, the final part of this paper argues that these reforms began to lay the foundation stones of a new kind of patriarchal order. Acknowledging the authority of a greater number of Hindu men, this vision of the family was more compatible with the more horizontal structures of representation than with the colonial hierarchies it replaced. Yet, far from breaking down the bonds of group identity or constructing a closer relationship between the state and individual citizens, the reforms served to tighten the control and unchecked power of these new patriarchs over a reshaped domestic sphere.
In making this argument, this paper discusses issues raised by Raj Chandavarkar in his posthumously published article ‘Customs of governance’.Footnote 10 Exploring changes in the Indian state's habits of governance during the twentieth century, Chandavarkar argues that, rather than making the state more accountable to Indian society, political representation reinforced in new ways many of the coercive power relations on which colonial rule had come to depend. Interested in mobilising Indian resources at the minimum cost to the metropole, British officials had, from the outset of their rule, depended upon patron-client networks for much of the day-to-day business of government.Footnote 11 Local ‘men of influence’ were encouraged to use their authority to discipline and order local society, the colonial government often turning a blind eye to the ways in which this was done, so long as it did not impinge on their own interests. Offered as a means of securing the acquiescence of Indian elites to an increasingly intrusive state, political representation did not mark a break with this approach to governing. The advent of representative government allowed already powerful Indian elites to access a new array of legislative powers without making them more accountable to the state in the way in which they exercised this authority.Footnote 12 Thus, Chandavarkar argues that Indian democracy brought about changes in the social structures through which state power was exercised but not a change in the nature of that power. The years after independence have seen the development of a strong legislative structure which is characterised by the existence of spheres beyond the law, where elites are able to operate unchecked by state power. This claim leads him to another, more general proposition: that the propensity of a democratic state to defend or undermine human rights has little to do with the adoption of bourgeois sensibilities, as some have argued,Footnote 13 and much more to do with attitudes inside the state towards labour—in the broadest sense of the term.
This paper is, to some degree, a study of the ways in which the introduction of political representation affected one of these spheres of Indian elite autonomy: the family. It shows how political representation was accompanied by calls to reform family law in ways that, at times, appeared to bring the state into a new, more accountable relationship with Indian society. Yet, looking at this legislation in greater depth, it becomes clear that these measures sought not to grant the Indian state powers to safeguard vulnerable family members but to strengthen the powers of a new, enlarged group of Indian men over the resources and labour of their relatives. Consequently, this paper seeks to demonstrate that ideas and attitudes towards patriarchal power provided an over-arching structure for other systems of governance and social control, including labour relations. Indeed, it is suggested that study of the shifts in Indian patriarchy provides a useful lens through which to analyze and understand India's transition from colony to nation-state during the twentieth century.
Colonial patriarchy and personal law
Over the last two decades, historians have emphasised the importance of analysing patriarchal structures under British rule, not simply as an end in itself but as a means to understanding the modes of governance employed by the colonial state and its impact on Indian society.Footnote 14 Just as the advent of British rule prompted the reconstitution of Indian patriarchy, so too did its withdrawal from the subcontinent. Governing relationships and resources within the family, personal law formed an important lynchpin for many Indian social structures on which colonial power had depended. Changes in family law were therefore tied to and reflected shifts in the operation of colonial authority.
Though the policies and networks of alliance pursued by the early colonial state varied between localities, regional studies of gender relations in this period have shown that the expansion of colonial rule was accompanied by a reconsolidation and heightening of existing social hierarchies and relationships of dominance throughout India.Footnote 15 Through their sheer presence, Company officials placed Indian men in a position of greater distance from the political state and its power than had been the case under previous Mughal or Hindu polities. This racial division of power was reinforced by British administrators’ own ideas about a separation of political and social authority based on western notions of temporal and spiritual realms of power. While religious rites and social status had been integral to the functioning of the political power of Hindu kings and Mughal rulers, under Company rule, social practices and ritual customs were rendered as distinct and separate from the political state.Footnote 16 Reflecting the interest of the numerically weak colonial administration in cataloguing and ordering the vast population over which it ruled, Indian society was recast within this ‘social’ sphere as comprising not of individuals but of communities, constituted through apolitical social bonds. This view of society was most clearly expressed in the colonial legal system which was divided between public and personal spheres. Shaping relations in the market place and the political sphere, public law drew on English legal notions of the property-owning individual, while the system of personal law developed under Company rule ‘entrenched ascriptive (caste, religious and familial) status as the basis of individual right.’Footnote 17
At the same time as distancing Indian men from the operation of political power, colonial modes of governance provided new spaces within which Indians could exercise social authority and control. Colonial officials, interested in governing through existing, indigenous networks of influence, sought alliances with Indian men who, they believed, were already able to exercise considerable hierarchical authority within their local community.Footnote 18 The effect of this policy was not to centralise or make uniform the very different regional social structures of the subcontinent but rather to introduce a new layer of hierarchy to existing structures of power and dominance, which continued to vary from area to area. These developments provided new incentives for men to adopt practices that heightened their own authority and power within the ‘social sphere’, while also serving to reaffirm colonial views of Indian society as comprising groups and communities, rather than individuals. Social groups, which had secured landed power and influence only a few decades before the advent of colonial rule, adopted languages of caste right and tradition to reinforce their position of dominance.Footnote 19 The very structure of the colonial state, its division between ‘social’ and ‘political’ power thus served to recast Indian men's authority in terms of the control they were able to exercise over other members of their family and kinship group.Footnote 20
As the framework governing the ‘social sphere’, personal law formed a principal site of interaction between Indian men and the colonial state. Reflecting the different social divisions through which the colonial state viewed Indian society, personal law was mainly constructed around religious texts but was also influenced by local and caste customs. British interest in textual legal sources gave more rigidity to some aspects of the personal legal system administered by the colonial state and also introduced a particular focus on religious identity. As well as textual prescriptions, customs and family traditions were incorporated into the legal systems to mean that in some areas of British India there was greater affinity of practices between groups of different religious identities than within a religious community,Footnote 21 while regional divergence in practices meant that the family law of a south Indian Brahmin had little in common with that of Brahmins in the north Indian provinces. Under Company rule, administrators also employed Indian informants to advise them of correct legal practice.Footnote 22 At the same time, the colonial state's own interest in securing the social structures through which they exercised authority also affected officials’ interpretation of indigenous practices.Footnote 23 In this way personal law provided a point of interaction between the colonial state and Indian men wishing to further their own influence; not as individuals but as representatives of wider groups and social structures.
Many of these hierarchical power relationships were strengthened further by law reforms passed in the 1860s. These changes had quite different consequences for Muslim and Hindu personal law. The clear doctrinal and textual basis of Islamic law provided a much more defined base for Anglo-Muslim personal law. Though custom continued to play an important role, the reforms of the 1860s incorporated many legal prescriptions from the Koran into the Anglo-Muslim legal system.Footnote 24 The ‘just and equitable’ nature of Koranic succession practices, under which property was divided amongst a man's children, were praised in particular, even though they divided the collective family structure.Footnote 25 Indeed, this was to become one of the central features defining Muslim family practices against those of Hindus: Muslim families were considered to comprise property-owning individuals, whereas the natural condition of a Hindu family was assumed to be ‘joint’.
The size and diversity of the many Hindu communities in India meant that the exact operation of this joint structure varied from region to region and between the schools of Hindu law that had gained a more standardised form under British rule.Footnote 26 A Hindu man was entitled to hold certain properties individually, but the nature and value of these commodities varied across the subcontinent. Under Mitakshara law, the school of law to which the majority of Hindus adhered, the joint family unit was known as a coparcenary and comprised up to four generations of male relatives, with women barred from membership. There were no fixed individual shares within the coparcenary, which operated as a single trust-like unit. However, the unit was managed, on behalf of others, by the eldest member, usually the father who was known as a karta. Though younger men did enjoy claims to property, their capacity to exercise this right was limited by the hierarchical structure of power within the family. The Mitakshara coparcenary structure therefore permitted the dominance of an elder patriarch over both women and younger men.Footnote 27
Challenging familial order: personal law reform 1860s to 1920s
The social and economic context within which these law reforms took place meant that this shoring up of notions of ‘true’ Hindu and Muslim families was by no means uncontested. The transition to Crown rule, together with the expansion and reform of the colonial administrative system, coincided with a new shift in international trade. While the Company had worked hard to squeeze revenue out of a relatively stagnant agrarian economy, the Empress Victoria inherited a colony rich in precisely the kinds of primary produce that Britain and other industrialising countries across the world now wanted.Footnote 28 The Presidency cities and, over time, their hinterlands, were drawn into global markets, and their volatile trading patterns.Footnote 29
Against this backdrop of economic boom and social change, the rigid structure of the revised Hindu and Muslim legal systems created much friction. The colonial state's strict application of Koranic succession laws made it difficult for many wealthy MuslimsFootnote 30 to protect the integrity of large family estates for future generations.Footnote 31 Whereas it was the emphasis in the new legal system on dividing family property that frustrated Indian Muslims, it was the emphasis on ‘joint’ property rights that created friction for Indian Hindus. The need to secure coparceners’ consent for any transaction relating to an estate made the coparcenary system very effective in securing a family's financial stability but highly ineffective for making fast business decisions. As the value of land rose and a land market emerged in certain areas of India, the coparcenary system created confusion about the legality of mortgage or usury transactions made by the karta on behalf of the ‘joint’ family.Footnote 32 Moneylenders and those seeking to buy land found these problems hugely frustrating and expensive. Serving to lock up capital in land, the coparcenary system also produced problems for Indian merchants looking to compete with European capital in the markets now opening up in India. At the same time, administrative changes and the opening up of new professional employment opportunities for educated Indians placed further strain on the coparcenary unit. Moving to the Raj's administrative hubs, this new class of urban professionals was rendered economically and geographically independent from their ‘joint families’.Footnote 33 While the Indian Muslims most affected by the law reforms were drawn from landed families long connected with the power of the colonial and Mughal state,Footnote 34 it was amongst Indian Hindus, the emerging professional and merchant men, who were most frustrated by the heightened focus on the ‘joint’ family.
As a result, many Hindu merchants and urban professionals criticized the laws governing ‘joint’ family ownership which, they felt, harmed their economic and social status, putting them at a disadvantage with their Muslim counterparts. Though this is not to suggest that these groups should be seen as discrete interests competing with one another.Footnote 35 This conflict of interest could take place within a single coparcenary, as a younger son involved in trade or government administration, sought to carve out a ‘share’ of the family estate to service their needs. In this way, the Hindu legal ‘joint’ family was ‘made’ at precisely the moment that multi-generational family units were coming under pressure.Footnote 36
Thus, the decades following 1860 saw a boom in the number of court cases involving disputes about coparcenary rights. The range of arguments presented both by those seeking to partition the joint family and those wishing to protect it generated much legal debate and a vast canon of Privy Council rulings about the exact nature of coparcenary ownership.Footnote 37 These questions and debates were, with constitutional reform and the acceptance of political representation for Indians, also drawn into the legislatures. While the legacy of the 1857 uprising and the state's subsequent declaration of religious neutrality discouraged many British officials from intervening in practices understood as ‘religious custom’, many of the new Indian representatives did not feel themselves to be restricted in the same way. It was following the expansion of Indian representation, in the years after World War I in particular, that the campaign to alter personal law gained real momentum.
The 1919 Government of India Act marked something of a change in the colonial state's approach to securing its aims. The economic climate of the late-nineteenth century had allowed officials to secure British international interests with little intervention in the Indian economy. The impact of the war on global trading meant that this was no longer the case after 1918.Footnote 38 Yet the war had also demonstrated the centrality of India to Britain's position in international politics. The peace settlement had served to bring many more people and lands under British authority, making British officials increasingly aware of the importance of the subcontinent as a reservoir of men and military resources.Footnote 39 Devolution and a policy of Indianisation provided a means of extending state power, the cost of which could be born by the Indian, rather than the British, taxpayer. The 1919 Government of India Act drew existing networks of patronage into closer relationship with the state and its political power. But, seeking now to mobilise a much greater range and quantity of financial resources and manpower, the Act also drew officials into contact with new groups of men: those outside existing networks of patronage who had profited from the economic and social changes of the last half-century. This included members of the rising urban professional and mercantile classes and, above all, large numbers of Hindu lawyers, who quickly made their mark on the legislative business of the new representative councils.Footnote 40
As a result, the interwar years saw discussions about the structure of coparcenary rights move from the courts into the legislatures. Regional customs and differences in economic conditions remained an important element in these discussions. At the same time, new legislators were anxious to present themselves as representative of as large a group as possible and thus often sought to present their proposals in a manner that appealed to Indians across the subcontinent. The economic climate of the later 1920s provided further impetus for a more national approach to issues of family structure and access to resources. The slowing down of primary produce markets put many rural families under growing economic pressure.Footnote 41 In families where a son or other relative had taken up a steadily paid salaried profession and was living separately in the city this could become a source of tension. In these difficult conditions, a growing number of Hindu men became critical of the emphasis on ‘joint’ ownership and the weakness of men's individual property rights under the existing Hindu legal system.
The deeply gendered nature of colonial interpretations of Hindu law meant that attempts to open up the patriarchal structure of the Hindu joint family inevitably raised questions about the position of women within the family. The power and coherency of the Mitakshara joint family rested on the exclusion of women. Attempts to break up this system and introduce stronger individual rights required reformers to address the position, and entitlement, of women in the new family structure.Footnote 42 Against the backdrop of constitutional reform, discussions about Indian's fitness for self-government also raised questions about the rights of Indian women.Footnote 43 Supporters of Hindu law reform often chose to present their calls for reform of the Hindu joint family as necessary and advantageous not for aspiring Hindu men like themselves, but for Hindu women. In so doing, legislators seemed, at times, to be calling for quite radical changes not only to Hindu law but also to the relationship between the state and Indian society. Their arguments seemed to set out a new vision of Indian society consisting not of hierarchical groups but of individuals who, when presented as defenceless Hindu women, required protection and welfare.
In 1921 R.R. Kale, a Maharashtrian lawyer with links to Gokhale, applied to introduce a ‘Bill to regulate and define the rights of Hindu women in property inherited from men’ to the Bombay legislature. The aim of the bill was to provide Hindu widows with the right to demand division of her husband's coparcenary and to claim his share of the joint estate after his death. While the authority of the coparcenary would still have restrained Hindu men in their lifetime, this bill was a gradual move away from the joint family unit and the dominance of the karta. The bill was, however, rejected by the government on the grounds that it dealt with one regional area only and could therefore create confusion within the wider structure of Hindu law.Footnote 44 In January 1922, Sambanda MudaliarFootnote 45 called on the Government of India to formulate a bill that would ‘enable the widows of members of undivided coparcenary families governed by Mitakshara Law to get for their maintenance during their lives the whole income accruing from their husband's shares of the family properties’.Footnote 46 This was a more moderate formulation of the reforms proposed by Kale—granting women maintenance rather than full rights over a property—but was also part of the drive to break down the hold of coparcenary over property. While the government were willing to permit the now growing number of Hindu representatives to discuss law reform, and even to propose private members bills to this effect, they were unwilling to enter the debate themselves and did not draw up a bill on the lines Mudaliar proposed.
Later that year another Madrasi, Seshagiri Ayyar, introduced a measure to alter the order of succession for female heirs governed by Mitakshara law in Madras and in the United Provinces. Pointing to the property rights enjoyed by women governed by Mayukha law in the Bombay Presidency,Footnote 47 Ayyar argued that his bill would provide greater uniformity to Hindu legal practices.Footnote 48 The measure itself dealt only with the succession of a Hindu man's individual property, and not to his share in the coparcenary. However, as law member, Tej Bahadur Sapru, pointed out, the bill had the potential to raise questions about the order of succession with regard to other property, including the coparcenary estate.Footnote 49 Ayyar argued for his reforms on the basis that the existing order of succession privileged male relatives, with whom the deceased may have little relationship, over his immediate family. Thus, while the measure itself did not deal with coparcenary property, the grounds on which it was proposed granted greater legitimacy, on the grounds of emotion, to the smaller ‘nuclear’ family unit than to the all-male coparcenary. Though government officials were wary of orthodox Hindu opposition to the bill, they did not veto the measure. Rather, the proposals became bogged down in legislative red tape until they were revived by Hari Singh Gour, a keen advocate of Hindu law reform.Footnote 50 The measure was eventually passed in 1928 as the Hindu Law of Inheritance (Amendment) Act.
Even though many of the proposals were not endorsed by the central legislature, the debates about personal law reform began, gradually, to whittle away the view of the joint family as the basic unit of Hindu law. What was being established in its place, however, could at times appear somewhat hazy. This ambiguity was due in part to the way that reformers presented their arguments. Emphasizing the figure of the Hindu woman as a vulnerable individual, in need of protection, representatives were sometimes careful to avoid spelling out clearly the consequences of reforms for male family members. This kind of backdrop and seeming tolerance for talk of women's rights provides a different kind of context within which to analyse public responses to the Sarda Act and the emergence of ideas about the individual citizen that came to be enshrined in the constitution's Fundamental Rights.
Remaking patriarchy: familial authority and personal law reform in the late 1920s
Rai Harbilas Sarda's Child Marriage Restraint Act was introduced to the central legislature towards the end of 1926, just as the debates about Hindu property law were gathering momentum. This context has been largely ignored in previous studies of the Act which have explained its development largely with reference to the international political events of the late 1920s and, in particular, to the publication of Katherine Mayo's inflammatory Mother India. An American journalist with strong imperial sympathies, Mayo's book was a blistering attack on Indian, and particularly, Hindu sexual mores. Released just as preparation began for a review of the 1919 Government of India Act, the book was seen by many as a direct challenge to the ability of Indians to rule themselves at the moment when demonstrating this mattered most to political representatives.Footnote 51 The Sarda Act became the focus of Indian leaders across the political spectrum. Starting life as a civil measure designed to prevent child marriages within the Hindu community, the bill was amended, in the wake of the Mayo controversy, as a criminal measure, to apply to all Indian communities. The act included provisions to punish an adult groom but also, in cases where the couple were below the age of consent—set finally at 14 for girls and 18 for boys—their guardians. The amended Act seemed to undermine Mayo's criticisms. Claiming that they, and not the colonial state, were the primary agents of social change and enlightenment, Indian leaders argued that the Act clearly demonstrated their fitness for self-rule and their right to be included in the constitutional negotiations.Footnote 52 Cutting through religious personal law and the social hierarchies of the communities governed by it, the Sarda Act appeared to affect not simply women's rights but the very basis of the state-society nexus at the heart of colonial governance.
Mayo's intervention undoubtedly played a pivotal role in transforming the Sarda Act into a cause célèbre. However, the private members’ bills and debates about Hindu property law were crucial in developing greater public acceptance and support for ideas of women's rights that made it possible, by 1929, to formulate a bill such as Sarda's with the female citizen at its centre. Opening up the structure of the Hindu joint family, these measures had raised questions about individual rights that seemed to run entirely counter to the hierarchical structure of colonial Hindu family law. Yet, when explored closely, it is clear that, though couched in the language of women's rights, much of this legislation was intended to alter the rights of men within the coparcenary system. Whilst calls by legislators for women's rights suggested an intellectual movement in Hindu law away from a focus on family rights, towards greater importance of the individual, the reforms themselves did not advocate granting women rights as equal individuals within the joint family. Legislators were interested in loosening the notion of ‘joint’ property rights and the legal grip of the elder patriarch in the Mitakshara joint family—the karta—but not loosening the power of all the men in the joint family. Indeed, the main aim of much of the proposed legislation was to give younger men within the family greater individual control over their property.
This difference also helps us to understand public reaction to the Sarda Act. While calls for reform of child marriage practices won much support following the publication of Mother India and the announcement of the Simon Commission, it began to ebb away almost as soon as the revised Sarda Act was accepted by the legislature. One important reason behind this is that many Indian nationalists and legislators were more preoccupied with constitutional reform than with social reform.Footnote 53 However, the ‘gap’ between male legislators’ use of the language of ‘women's rights’ and that of Indian women leaders, particularly around the time of the Sarda campaign, is also significant. Many Hindu male legislators were willing to support calls for reform of women's rights, providing those reforms were in their own interests and protected their individual powers. Yet, as the Sarda campaign had shown, talk of women's rights could pose a challenge, not simply to the authority of the male karta, but also to patriarchal power in general: the Sarda Act granted power to the state to intervene in family relations, over the head of the husband. Thus, the final version of the Sarda Act was seen by many legislators as deeply threatening.
At the same time, the Sarda controversy had demonstrated the political strength of claims about women's rights vis-à-vis the colonial civilising mission. Many Hindu men interested in personal law reform were unwilling to reject the language of ‘women's rights’ altogether, but felt strongly that, in the wake of the Sarda Act, greater control should be exercised over these ideas. In June 1929, as the public furore surrounding the Sarda Act reached its height M.R. Jayakar, an all-India representative from the city of Bombay, drafted a Hindu Gains of Learning Bill.Footnote 54 Until this time, a son's earnings as a result of a special education, interpreted by the courts to mean western or English medium, reverted to the ‘joint’ family to be shared by members of the coparcenary. Jayakar's Bill set out to make it the sole, individual property of the earner. The Bill was couched in exactly the same kind of language as the property reform bills proposed earlier in the decade; in excluding women from the coparcenary unit, the Mitakshara legal system left widows exposed to poverty and a life of destitution. The Bill would address this problem by securing a greater share of wealth as a man's own individual property, which his wife was entitled to inherit. A Hindu woman's access to property would thus improve, but only on the basis of her married status. But it was not only women who would be better cared for under this proposal. In his statement of objects and reasons for the Bill, Jayakar argued that in placing the Hindu commercial community at a ‘serious disadvantage in modern times’ the coparcenary system was harming not only certain Hindu groups but also the community as a whole. Joint-family ownership, Jayakar maintained, undermined entrepreneurial drive and easy access to credit that could be channelled into other areas of society. In allowing for ‘speedy obtainment of credit and facility in the transferability of estates’ the Bill would allow for greater investment in the entire Hindu community. Greater individual rights for Hindu men would allow them to provide for their wives, families and the Hindu community at large.Footnote 55
The Gains of Learning Bill, Jayakar argued, served the greater good of the Hindu community. The measure, he promised, would help to end contemporary disadvantage and equip Hindu society for the modern world, thereby allowing more people to prosper. Yet, the changes actually wrought by the Bill were somewhat at odds with this universalising rhetoric of rights, modernity and the common good. The reforms sought to carve out and assert the power of propertied Hindu husbands to provide for, and to govern, their female relatives. Far from opening up the patriarchy of the ‘joint’ family, to give the state greater access to its individual subjects, the Bill sought to give power to a new group of patriarchs: men from the professional and mercantile urban classes who had previously been subordinate to the head of the coparcenary. The Bill might therefore have created greater equality between coparcenary members, and freed them from the power of the karta, but in no way did it move Hindu women or poorer, un-propertied Hindu men, towards positions of greater social, economic and political parity.
The Congress leadership's decision to ratify a declaration of Fundamental Rights at its 1931 Karachi session—a declaration which later became the basis for the Fundamental Rights of the 1950 Constitution—has been linked to the passage of the Sarda Act. Yet it is likely that the timing of this decision owed more to Jayakar's bill. It took Sarda and his supporters years to see the Child Marriage Restraint Act through the legislature, whereas the Gains of Learning Act was passed quickly and easily in a matter of months.Footnote 56 Jayakar's Act appears, in many ways, to signify the reassertion of male legislators’ control over debates about Indian women's rights. The measure affirmed the authority of the husband, rather than the karta or the state—as in the Sarda Act—over the family. The measure received strong legislative support at precisely the moment when the Sarda Act seemed to be floundering and calls from Sarda and his supporters to strengthen the implementation of the new restrictions on child marriage were ignored by male Indian legislators.
While it might not have appealed to all advocates of personal law reform, Jayakar's bill certainly appealed to the majority of those able to wield legislative power. It is not intended here to question the ‘legitimacy’ or commitment of the interwar reform movement as a whole. Yet, it was Hindu male legislators, such as Jayakar, who, ultimately, had the power to shape the reforms enacted at this time. Thus it is significant that the next major reform measure to be enacted after the Gains of Learning Bill was the Hindu Married Women's Property Rights Act, introduced by another Bombay representative, G.V. Deshmukh, in 1937. As the Act's title so clearly states, much of the reform was about women's access to rights as men's wives and not as their equals. It was followed by a plethora of measures, all of which took a very similar approach.Footnote 57 Seen from this perspective it becomes easier to understand why, by 1974, many Indian women still had a long way to go towards achieving equality.
Conclusion
The passage of the Sarda Act in October 1929 was, as Mrinalini Sinha has argued, of crucial significance in reshaping the rhetoric of rights invoked by Indian leaders. In the furore surrounding the publication of Mother India, the Act was redrafted in a way that suggested not simply a reform of women's position within the family but of their position vis-à-vis the state. Brought forward by an Indian representative and hailed as a refutation of claims about the colonial civilising mission, the passage of the Act seemed to suggest that a state under Indian control would reach out to and protect its citizens in a way that the colonial state did not. In so doing it has bequeathed a powerful legacy to the Indian nation-state.
Yet, the real significance of the Sarda Act can be understood only when placed within the longer-term context of a shift in Indian patriarchy. The Act was not simply the product of a short-lived historical moment, a point when events and interests fleetingly overlapped to create a new way of looking at society. Rather, its passage, and its subsequent weak application, should be placed within the context of longer-term debates about social reform that, though couched in the language of women's rights, were driven by the interests and claims to property of Hindu men. By placing the Sarda Act within this wider framework of a shift in Hindu patriarchy we can understand how it was possible for Indian male representatives to support and adopt a language of women's rights even though they opposed measures that granted gender equality.
Indeed, there are compelling reasons to re-read the interwar debates about social reform more generally. The early-twentieth century was, without doubt, a period of great change within the relations structuring Indian society. The deeply hierarchical structures of colonial governance gave rise to mounting social tension which, following constitutional reforms in the early-twentieth century, poured into the legislatures. This expansion of the franchise granted influence to Indian men who had come, over time, to enjoy greater social influence but who remained subordinate to more powerful patriarchs within the rigid social hierarchies of colonial personal law. As legislators began to call for an end to the structures that protected the dominance of the few, it appeared that Indian society was on the brink of radical reform. In this atmosphere there appeared to be greater sympathy for and openness towards the claims of more marginalised social groups, such as women, the working classes and lower-caste Hindus. This helps to explain more clearly the great expectations among many Indians that independence could bring about a fundamental shift in political structures and their relationship to Indian society.
This view of the debate, as part of a struggle to reshape Indian patriarchy, also helps to explain why such a shift in state-society relations did not occur. Many Hindu male legislators were willing to contemplate reform of women's rights only insofar as these changes improved their own individual control over property. The first part of this paper argued that the domestic space was of crucial importance in colonial governance as a key area over which Indian men, rather than British officials, exercised control. While the home may have provided a site for constructions of Indian national identity and power under British rule,Footnote 58 few Indian men wished to relinquish their control over this space, even to an independent Indian state. Legislators and nationalist leaders were happy to encourage the view that an Indian government would intervene in and reform aspects of the social and domestic spheres from which the colonial state had distanced itself, particularly following the publication of Mother India. However, very few of these men actually supported greater state intervention in the family. The rhetoric of reform provided a powerful weapon against the patriarchal authority of colonial administrators and British social reformers, as exemplified in the Sarda agitation. Indeed, the language of reform and the apparent commitment of an Indian state to uphold the rights of women and other oppressed citizens were crucial in constructing ideas of Indian self-rule in contrast to the colonial state. This was embodied most clearly in the decision to include Fundamental Rights in the 1950 Constitution. Yet, away from this rhetoric and the battle against British rule, improving the legal position and ability of women to access their rights were not the primary motivations of Indian legislators. Rather, these men were interested in reforming and strengthening their own power both within the family and as its representatives before the Indian state.
The importance of female exclusion in the structure of the Hindu joint family meant that attempts to challenge the hierarchy of this legal unit inevitably raised questions about gender relations. By focussing on an image of the weak and vulnerable female individual, legislators helped to promote a new kind of ‘maleness’. Granting authority on the basis of a man's ability to provide for his family, the new model of male power cut against the emphasis on generational difference and status that had underpinned the position of the karta. The Gains of Learning Act, and later the more comprehensive reform bills of the 1930s and 1940s, became the foundation stones of a new kind of patriarchal model that recognised the social authority of a greater number of Indian men than had been the case under the hierarchical structures of colonial rule. But, though the reforms served to alter the social structures through which the state interacted with society, it did little to change the nature of that relationship. The Acts granted to the propertied husband the same kind of interlocutory powers as the karta had enjoyed hitherto. They did not impose greater state control over his authority but rather reinforced the position of the family, albeit in its new, smaller form, as a structure firmly under the dominance of Indian male autonomy.Footnote 59 As a result, it is the relationship between the nation and the nuclear family, rather than between the nation and its many individual citizens, that has been most important in shaping the powers of the post-colonial state.
By integrating the changes in family relations with the events taking place in the wider political arena at this time, this paper has shown how late-colonial debates about personal law are of interest not just to the scholar of Indian law or gender relations, but also provide a valuable window into the forces that drove political change during this crucial moment in Indian history. In so doing, it has also raised questions about what has become one of the central tenets of American and European foreign policy in the late-twentieth and early-twenty-first centuries: the view of democracy as a coherent doctrine the introduction of which will liberate a nation and, in particular, its women. That is not to oppose the development of democratic polities and modes of governance across the world but points to the importance of pre-existing power structures and relationships in shaping the operation and egalitarian functioning of an emerging democratic state. Democracy does not automatically empower women, but can, as in the case of independent India, produce new modes of oppression. Without social structures that allow citizens to access state power and protection, enabling legislation, for women or any subordinated social group, will fail to bring about on-the-ground change. Analysing and re-thinking the nexus between gender, state power and democracy is thus a task of the utmost importance to further our understanding of the post-colonial world.
