Say No To UCC: What Hindus Need To Learn From SC’s Verdict On Hindu Succession Act And Progressive Rhetoric Around It

Arihant Pawariya

Aug 19, 2020, 06:30 PM | Updated 06:30 PM IST

The Supreme Court of India. (SAJAD HUSSAIN/AFP/Getty Images)
The Supreme Court of India. (SAJAD HUSSAIN/AFP/Getty Images)
  • The latest SC judgement on the Hindu Succession Act has important lessons for the Hindu society.
  • The rhetoric around the old Hindu law labelled patriarchal and the current activism valued as progressive needs to be countered.
  • The Supreme Court of India on Tuesday (11 August) pronounced a verdict while interpreting the 2005 Amendment to the Hindu Succession Act of 1956 (henceforth HSA).

    Since the judgement was delivered, I have come across scores of opinions which can basically be combined under two categories — a) one group of commentators welcomed the decision but asked why this ‘progressiveness’ is not extended to non-Hindus; b) second group of opinion makers have hailed this as a great step while highlighting that the reform process is far from over and a lot needs to be done to achieve true equality between men and women under the HSA.

    But I have not come across a single commentary which deliberates on the implications of the SC judgement. More importantly, one has not come across a single voice which could counter the Leftist narrative that the old Hindu law was patriarchal and it’s the HSA of 1956 followed by the 2005 Amendment followed by the latest SC judgement which has brought light of ‘equality/equal rights/progressiveness’ to the dark underbelly of Hindu family law.

    The same was observed when the 2005 amendment was passed unanimously. It tells us how far the Hindu leadership has come from the 1950s era, when there was no dearth of Hindu leaders fiercely debating the conservative/traditional view.

    Today, it has become far easier to ram the progressive changes down the Hindu majority's throat. Forget Hindu leaders, it is hard to even find a Hindu intellectual who can present a alternate viewpoint. Call it deracination or lack of cojones to stand up to political correctness but it’s a worrying sign.

    Nonetheless, the latest SC judgement on the HSA has important lessons for Hindu society which also needs to pay attention to the leftist rhetoric around the verdict.

    The lesson is about perils of uniformity (at the expense of diversity).

    Moreover, the rhetoric around the old Hindu law (which is being termed patriarchal) and labelling of current activism as progressive (and thus right and beneficial for women) needs to be countered.

    But first things first. Let’s quickly summarise the HSA of 1956, the 2005 amendment and the recent SC judgement on the same.

    From 1950s To 2020s

    Parliament passed the Hindu Succession Act in 1956 borrowing mainly from the old Mitakshara family law of Hindus. In the process, by prioritising uniformity, it destroyed vast diversity that existed at the time as far as civil codes were concerned, including various comparatively “progressive” law systems prevalent in different parts of the country such as Dayabhaga, Marumlakatyam, Alisanthanam, Nambudari, etc.

    It is pertinent to note here that the various law systems that the British compiled were not the lived reality of Indians. While based on shastras, these evolved over the centuries and introduced innovations based on local needs, customs and traditions. But this diversity bewildered the Britishers and whenever they saw a conflict between shastras and the evolved system as practised on ground, they chose the former.

    This destroyed the progress made by Hindu society and threw it back by centuries.

    In 1956, the Mitakshara law system was codified as the HSA with some tweaks. For present discussion, Section 6 of the HSA is relevant which deals with devolution of the property.

    Under the Mitakshara law, there is concept of ‘Coparcenary’ which comprised exclusively of male members who would acquire interest in the ancestral property of the Hindu family as soon as they are born. Ancestral property is one which a person has inherited from his father, father’s father and father’s father’s father.

    Essentially, the property was jointly owned by the male members of the Hindu family. For example, let’s take Person A who has three sons B, C, D, who in turn each have one son, E, F, G. Let’s assume that B, C, D also have sisters and E, F, G also have sisters. Now, assume that A has inherited 7 acres from his ancestors (who have now all passed away). So, notionally, these 7 acres are jointly owned by 7 male members of the Hindu family. A’s wife (the grandmother), wives of B, C, D and sisters of E, F, G are not owners (Coparceners) of the property (Though each of them have maintenance rights)

    If tomorrow, A dies, then only 6 males will be left in the family and the 7 acres will be notionally divided among them equally. If a new son is born in the family, then the property again is notionally divided among seven members.

    Basically, the share of each member keeps increasing, decreasing with decrease/increase in male members of the family. No one has definite share and can claim as such (Unless they decide to go for partition).

    Under Mitakshara system, there are two types of devolution of property. One is by survivorship where a male member acquires an interest in the joint property at the very instant he is born. This is the way ancestral property is devolved from one generation to the next and is called unobstructed heritage. Second is devolution by succession under which only that property which is acquired by a person on his own and is not an ancestral property is devolved to his children on his death. This is called obstructed heritage (as the devolution is obstructed by a person’s existence).

    Now, in 1956, the HSA slightly tweaked this and gave women some piece of the property pie (though not equal to the son) by way of succession.

    Let’s understand the change through an example. If a person has ancestral property worth Rs 1 lakh and then a son and a daughter are born to him then the son becomes joint owner of the property on birth but the daughter doesn’t.

    However, HSA ensured that on death of the father, father’s share of Rs 50,000 is devolved equally to both son and daughter. Essentially, son ended up getting Rs 75,000 worth of property and daughter Rs 25,000 worth.

    In 2005, HSA was amended and daughters were also made coparcener at par with son. This means that if a person has inherited a 1,000 sq ft of a plot as ancestral property and then goes on to have a son and daughter, both become joint owners right from their birth.

    The latest SC judgement clarifies that the 2005 amendment was retroactive in nature meaning that it will not apply to only those born after the amendment came into force.

    Moreover, whether the father was alive or not in 2005 when the amendment came into force is immaterial and the daughter’s right in ancestral property was by birth, just like the son.

    Perils Of Uniformity And Centralisation

    The country’s rulers — first the Britishers and post Independence the Congress Party led by Prime Minister Jawaharlal Nehru — have done great damage to the immense wealth of Hindu society by obliterating its diverse practices, traditions and customs as far as civil codes were concerned.

    Earlier, the Hindu society was aatmanirbhar (self-reliant) and could innovate, reform and adapt to better practices at its own pace and comfort. Now, all the power to change and reform has been hijacked by the state.

    As if uniformity wasn’t bad enough, centralisation has made the society extremely fragile to hostile elements who can grab power for a short time and induce harmful change wrapped in fancy language causing great damage in the long term.

    As if uniformity and centralisation weren’t bad enough, the secular nature of the state and deracination of its leaders further facilitate the introduction of harmful changes to Hindu civil codes.

    For instance, in 1956, the HSA introduced the concept of will, imported from the West and which was alien to Hindu law.

    Interestingly, this concept of will has ensured that daughters sign away their share of property to her brothers before marriage thereby nullifying the limited property rights granted by the HSA.

    That’s not all. At a time, when we are finally coming to terms with ill effects of ‘one size fits all’ approach to policy-making in a diverse country like India, it is surprising to see the allure of same approach when it comes to civil codes.

    Before the British and Congress party destroyed immense cultural wealth of Hindu society, there existed a free market of civil codes. It allowed for failures to be corrected, better practices to be widely accepted and was sensitive to customs of all jaatis, regions, and sampradayas. But Nehru sarkar, just like it did with the economy, put the government at the “commanding heights of society”.

    As if all this wasn’t bad enough, this uniform, centralised and ‘one size fits all’ civil code for Hindus is blind to realities of millions of women and is in fact quite elitist in nature.

    More than 10 crore households (over 30 crore people) are landless. Another tens of crores of people have such small property that it doesn’t amount to anything.

    Increasing population is leading to further fragmentation of whatever little is available.

    Now, imagine how small percentage of Indians this law focused on giving so-called property rights to women caters to.

    Now, imagine, how good an idea it is to apply a uniform civil law to any society which is at such contrasting and different levels of development. Those who would balk at the idea of applying one policy for vikas in Bandra and Banka don’t think twice when it comes to laws that deal with the most important aspects of their lives — marriage, succession, inheritance, divorce, etc.

    Spare Us The Lectures On Patriarchy

    Let’s now come to the rhetoric around the HSA post 2005 amendment and the recent Supreme Court judgement. The focus of most of the commentaries is on showing how progressive the recent developments are and how patriarchal the old Hindu law family system was.

    First, there wasn’t a single Hindu law system. Second, many law systems were equally or more ‘progressive’ than the HSA.

    Third, even if we limit our discussion to the Mitakshara law, it is ridiculous to think that the earlier system was patriarchal and we are now finally ushering in the dawn of enlightenment and feminism thanks to the activism of the leftists.

    The leftist think that the new secular civil code they are proposing based on equal and individual rights is perfect solution to society’s woes. But reality is more complicated than those with ‘the vision of the anointed‘ are willing to admit. As Thomas Sowell says, there are no perfect solutions, only trade offs.

    The Mitakshara law wasn’t perfect nor is what the leftists propose. Both have pros and cons.

    The former is concerned with strengthening the family system and giving it precedence over any claims of any one individual. That’s why its essential characteristic is joint possession of property by every member, whether he is old, young or a new born child.

    No one could claim exclusive possession and everyone had equal right over all the joint property. This not only ensured concentration of labour to increase productivity and avoided fragmentation of land but also ensured that strong individuals in the family didn’t exploit the weak by kicking them out or taking away all the property for themselves.

    Yes, the women were denied the “right” but they were also not vested with any “duty” unlike the men. While, leftists love to focus on how women didn’t enjoy rights in property, they conveniently forget that women didn’t have to take the burden of debt of their ancestors too which was shared exclusively by the men.

    And we know, by how much the poor would have outnumbered the privileged. While the case should be made for old Hindu law to be egalitarian and pro-women, the narrative has been exactly the opposite. Under the old law, women enjoyed maintenance right including the right to be married out of joint family funds.

    Before the HSA, widows as well as wives would get equal share in property if there was a partition between sons and between sons and father respectively.

    What’s the trade off in the new enlightened system of extreme individualism and equal rights? Well for starters, widow's share will be reduced as daughters are now entitled to their own share. Do equal rights matter more or should the weaker (like the widows) get more rights? I will leave it to the leftists to figure out.

    Overall, no one gains and no one loses but complexity is needlessly added.

    Earlier, if a family had a son and a daughter, the son would get all the property and women would be married off and become part of a different Hindu family where she will enjoy maintenance rights from a property over which her husband enjoys unbridled right. Her sister-in-law would move out and become part of another family.

    But now, the same female can enjoy her property right along with her brother but will also have to share her husband’s property with her sister-in law. So, how much did women really gain in the process on the whole?

    The only certain thing that happened was the property which would have stayed at one place is now needlessly fragmented in the name of “equal rights” and is being overseen by two different individuals without anyone gaining anything.

    On top of it, litigiousness is introduced where none existed and this has only increased the potential for sourness in the relations.

    Moreover, the balance of the family system is disturbed due to this extreme individualism. Modern jurisprudence is slowly moving to a situation where women wouldn’t only have rights in their natal family’s property but also would be able to take away a share of their husband’s property in divorce. This will tilt the scales in favour of women, something that ‘equal right’ advocates need to ponder on.

    Additionally, think the effect “equal rights” will have on the society. We know how large sections of Indian society still prefer sons to daughters. Now, once you give equal rights in property, aren’t there chances of this problem becoming more acute to prevent future daughters (and daughter’s children) taking away family property?

    Intellectuals need to ponder over second and third order effect of their ‘reforms‘.

    My point here is not to criticise the HSA, 2005 amendment or the SC’s latest verdict. It is limited to pointing out that each law system will have trade offs. You may be gaining ‘equal rights’ but may be losing 'security' of the family if you tilt too much in one direction. The challenge is to balance the rights with duties and individualism with family stability.

    Now, if we had retained the old Hindu way of doing things — retaining diversity and allowing multiple family law models to operate simultaneously in the society — leftists could have launched their own version of family law based on progressive values and convince the society of the benefits of their model. Alas.

    The free market of Hindu civil codes has been destroyed and the only way leftists can implement their progressive agenda is via the state. And they are doing it successfully.

    By uniformity and centralisation, their job has been made easier. Standing on the shoulders of Nehru, the leftists (with a great help from Uniform Civil Code supporting rightists) will “reform” Hindu society out of its character. It’s only a matter of time.

    Arihant Pawariya is Senior Editor, Swarajya.

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