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Lawyer-Scholars, Lawyer-Politicians and the Hindu Code Bill 1921-1956

Published online by Cambridge University Press:  01 July 2024

Harold L. Levy
Harold L. Levy*
Affiliation:
University of Maryland, Baltimore County
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Lawyers had a profound influence upon the legislative history of the Hindu Code Bill. Enacted as a series of separate acts between 1954-1956 by India's First Parliament, this bill was intended to modernize, unify, democratize, and secularize Hindu family law and Hindu society, and especially to emancipate Hindu women. I shall first outline the general influence of lawyers in India's national legislature during 1921-1956. Then I shall describe their influence on the pivotal events of this particular legislative history, with primary emphasis upon the British Indian period.

Throughout this legislative history lawyers tended to dominate the legislature, its leading political parties, and the executive (not to mention the judiciary). In the British Indian Central Legislature, lawyers usually formed the largest single occupational group. Even when landlords achieved numerical supremacy, lawyers maintained actual legislative leadership. Parties did not attain great strength in this legislature, but the more important of those that did arise were led by lawyers. After independence, in the Provisional Parliament (the legislative side of the Constituent Assembly) and in the subsequent First Parliament, lawyers constituted the largest and most influential occupational group. Lawyers supplied the majority of members and most of the leadership of the Congress Party, which controlled these Parliaments, and of other parliamentary parties which took an interest in the bill.

Type
Research Article
Information
Law & Society Review , Volume 3 , Issue 2-3: Special Issue Devoted to Lawyers in Developing Societies, with Particular Reference to India , February 1969 , pp. 303 - 316
Copyright
Copyright © 1969 by the Law and Society Association.

Footnotes

Author's Note: This essay draws upon eighteen months of research in England and India in 1965-66, supported by the Committee on Southern Asian Studies of the University of Chicago and the Office of Education of the Department of Health, Education and Welfare. My intellectual debt to so many persons, organizations, and official agencies in England and India is so great as to make unfeasible individual acknowledgments of all the candid interviews and generously given materials which made this study possible. I have benefited from the comments of Marc Galanter on this paper.

References

1. Discussion of the problem of delimiting legal profession membership is outside the scope of this study. Almost all described herein as lawyers were or had been practitioners. When others are so described, other membership criteria are given. When appropriate, the national or communal identity of a lawyer is given.

2. M. Rashiduzzaman, Central Legislature in British India 101-3, app. III (1965); 1 Simon Commission Report, 1930, at 165, 200, 406; Times of India, Indian Yearbook and Who's Who (1921-47).

3. W. H. Morris-Jones, Parliament in India 120, 123 (1957); Times of India, 1948-56.

4. Chelmsford, Governor General in 1921, had been a practitioner. Linlithgow, Governor General in 1941, held a law degree. Rajagopalachari, Governor General from 1948 until Prasad assumed the Presidency in 1950, had been a practitioner, as had Prasad. Every Law Member/Minister had been a practitioner. R. Coupland, Constitution of India 222-24 (1944); Times of India, 1921, 1941-44, 1948-56.

5. J. D. M. Derrett, Hindu Law Past and Present (1957) and J. D. M. Derrett, The Administration of Hindu Law by the British, 4 Comp. Studies in Soc‘y & Hist. 10-52 (1961); M. Galanter, Hindu Law and the Development of the Modern Indian Legal System, A.P.S.A. (Mimeo, 1964); L. I. Rudolph and S. H. Rudolph, Barristers and Brahmans in India, 8 Comp. Studies in Soc‘y & Hist. 24-49 (1965).

6. C. Ilbert, Indian Codification, 20 L. Q. Rev. 363, 368-69 (1889).

7. 1 Legislative Assembly (British Indian Central) Deb. 1601, 1603 (1921); 1 Council of States (British Indian Central) Deb. 620-21 (1921).

8. 5 Legislative Assembly 991 (1940).

9. Rau Committee Report, 1941: 1, 11, 12, 21, 22, 24

10. 1 Parliamentary Joint Committee Report 10 (1933). The reform proposals fell short of certain reforms then vigorously demanded by the AIWC (the All-India Women's Conference). Agitation by the AIWC and other women's organizations, whose activism itself had also received high official encouragement, had been conspicuously in evidence. Simon Commission supra note 2, at 49-53.

11. Rau Committee Report 21 (1941).

12. Id. at 21, 24.

13. “Our own experience leads us to believe that a substantial measure of agreement will be possible, provided reformer and conservative appeal to the best in each other.” Id. at 23 (emphasis supplied). Rau's great talent for mediation was no doubt instrumental in achieving this agreement.

14. As spokesman for Government, Law Member N. Sircar had earlier stated that Mitter was the “authority” for his position on the Deshmukh Act compromise. Legislative Assembly (1935).

15. 2 Legislative Assembly 819 (1944).

16. 2 Legislative Assembly 1629 (1943); 1 Council of States 524 (1943).

17. Joint Committee (British Indian Central Legislature) Report 3, 4, 8, 10 (1943).

18. Times of India, 1943-44.

19. 2 Legislative Assembly 1574 (1943).

20. Rau Committee Report 13, 32-34, 156, 182 (1947).

21. Id. at 116, 119-120 (his emphasis).

22. Written Statements and Oral Testimony Submitted to Hindu Law Committee, 1945, passim.

23. Rau Committee Report, supra note 20, at 117.

24. Sir B. N. Rau's Private Papers 114-15 (1947).

25. G. R. Rajagopaul (Secretary, Law Ministry under Ambedkar and Pataskar), Note on the Hindu Code (undated) (mimeo), 14, 17.

26. Interview with Mrs. R. Ray, 1966.

27. J. Nehru, Discovery of India 533 (1946).

28. Rajagopaul, supra note 25, at 19.

29. The bill itself was divided into separate measures to fragment the opposition, submitted first to the upper House to secure its more ready approval, and delayed to obtain a cooling of passions (delay accidentally also secured the advantage accruing from the intervening death of certain great opposition figures). Pataskar, Minister of State for Law, conducted frequent informal meetings to encourage accommodation. Interview with Pataskar, 1966.

30. 2 Constituent Assembly (Legislative) Deb. pt. 2, 832-33 (1949); but see 15 Lok Sabha Deb. pt. 2, 2942 (1951). Indeed, Ambedkar, an untouchable (as such prohibited, according to the Hindu texts, from reading them) who became a lawyer-politician, not only stressed the textual argument but seems to have been the only Law Minister/Member publicly to invite pandits themselves, as well as lawyer-scholars and practitioners, to discuss the Hindu Code Bill (from which informal conference emerged a major bill compromise regarding joint family property. Rajagopaul, supra note 25, at 13; interview with V. V. Deshpande, 1968).

31. The difference between these sources of influence has been emphasized to clarify the difference in lawyers' influence at different periods of the Hindu Code Bill legislative history. However, the possible connections between professional legal experience and general political influence should not be neglected. For instance, lawyers' expertise is related to oratorical skill, with the aid of which Indian elections may possibly be more easily won. For an argument that lawyers are influential in all regimes but especially in democracies, see 1 A. Tocqueville, Democracy in America 285-86 (1945).

32. A large majority of the “inner circle” and “oligarchy” found by Austin to have led the Constituent Assembly were lawyers. G. Austin, Constitution of India 18-19 (1966); Times of India, 1948-51.

33. Discussion of the precise influence of lawyers over the general substantive content of the bill as enacted, and over the substantive positions taken prior to its enactment, is outside the scope of this study. For such a discussion see the writer's forthcoming dissertation, Modernization by Legislation: the Hindu Code Bill in British and Independent India.

34. This was accepted by T. R. Venkatarama Sastri, Joshi's replacement on the revived Rau Committee, who nevertheless supported its 1947 Report on the draft code's merits; Rau, supra note 24, at 25f.