Between Family and Nation State: Revisiting The Hindu Family and the Emergence of Modern India (Cambridge: Cambridge University Press, 2013)

‘Indian women’s political and legal rights had been “purchased” in exchange for acceptance of greater state scrutiny of their economic activities.’

—The Hindu Family and the Emergence of Modern India, Eleanor Newbigin, p.126.

Rajosmita Roy: Your study centers around understanding the historical process through which the system of family law in the Hindu Code Bill came to be defined and embedded as a legislative marker of the modern nation state. It is this imagining of modernity between the colonizer and the nation builders that you bring into question through the trajectory of the codification of this bill. How would you analyse the changes and continuities in conjugal ties through the economy, citizenship and secularism nexus that you place at the heart of the Hindu Code Bill debates?

Eleanor Newbigin: The Hindu Code Bill has traditionally been seen as a women’s bill, brought by a post-colonial government committed to social transformation and equality that came to be watered down by a more conservative legislature. My book provides a different reading of the Code Bill. It argues that the codification project was primarily shaped by changes in the structure of the Indian state and political economy brought about by the devolution of power and introduction of direct representation.

Constitutional reform gave new legislative influence and power to native representatives, many of whom felt that they were entitled to discuss and change matters of personal law that a foreign colonial administration should not. At the same time, these reforms were funded by a shift in colonial fiscal policy that subjected the Hindu family to particular financial scrutiny. By the early twentieth century, colonial administrators and liberal theorists, most notably Henry Sumner Maine, had framed contractual rights as the evolutionary hallmark of a modern society at the same time as it framed Anglo-Hindu law as a legal system in which contract was not recognised; the joint family, which was marked out as the cornerstone of Hindu law, was understood as a unit that held property as a collective without a concept of something like individual ‘shares.’ Colonial officials argued that the particular, and, in their view, ‘premodern’ structures of Hindu property relations required that Hindu families be taxed in a specific way as single units which were termed Hindu Undivided Families (HUF).

Hindu representatives criticized what they argued was an unfair tax burden on wealthy Hindu families but remained committed to maintaining the autonomy of the Hindu legal system. Reformers advocated for legal reforms to establish the conjugal unit as a more financially autonomous body in Hindu law, one that did not replace but rather operated within an economically weaker joint family structure. Husbands were to be granted greater individual control over property away from other male family members, but they would use this, it was argued, to provide greater economic protection to their wives whose legal and social status would be augmented as a result. These arguments allowed legislators to argue that Hindu law was compatible with but not equivalent to ‘modern’ liberal contractual law. That is, these reforms made Hindu law more ‘legible’ to modern state structures while maintaining the autonomy of this legal system on religious grounds.

Muslim reformers and representatives were equally involved in questions about political representation and the counters of and distribution of resources within an ‘Indian-Muslim’ community in this period. However, the seeming compatibility of Muslim property rights with the liberal framing, particularly in terms of the framing of Islamic marriage as contractual, meant that reformers were often more interested in delineating the autonomy of Islamic law, and the Muslim family, from colonial legislative structures, rather than using these to pursue legal change. The relationship between the Indian state and Muslim communities was deeply impacted by the partition of the subcontinent in 1947 but much of the basis for this post-independence relationship was laid in the colonial positioning of religious family law as a system that was separate from but always compared with liberal state structures of governance.

The book therefore sees the Code Bill as part of a complex process of renegotiating the boundaries of state and religious community power in relation to questions of economy and citizenship that began long before independence. While legal codification had the potential for radical reform, I show that it was also a powerful tool for more conservative forces to reconfigure and consolidate patriarchal social structures.

RR: Colonizers go from a place of non-intervention in personal laws to substantial interference in the case of the Hindu Code Bill. How is this significant shift in their stance linked to the political economy of the time—for instance, pressures from the First World War or Great Depression? What does your emphasis on the political economy in studying this shift bring to historiographical developments around the larger discourse of nineteenth century socio-religious reform movements?

EN: When I began my research, I was struck by how firmly the historiography connected the Code Bill with nation building, even though the Code Bill was drafted and debated in the early 1940s when many key nationalist leaders were imprisoned. I think this has much to do with how the socio-religious reform and ‘the women’s question’ has come to be framed, through studies of the nineteenth-century debates, as relating to a discrete domestic sphere. I wanted to know why, in the middle of World War II and the Quit India campaign, the administration would give time to the Code Bill debates.

As I explored the archives, I began to see the origins of the Code Bill project to lie in the period of the First World War and the constitutional reforms that followed from it. The expansion of the state’s legislative structure and the (very tentative) opening up of areas of state governance and spending to elected Indian officials led colonial officials to think also about the fiscal impact of these changes. Land remained the single largest source of government revenue, but constitutional changes prompted officials to pay much closer attention to other forms of revenue, particularly direct taxation.

Constitutional reforms also imposed new notions of temporality into colonial financial policy. Montagu’s 1917 declaration promised increasing participation over time. This of course entailed an increasing cost in state funding also and colonial officials became increasingly interested in finding sources of flexible revenue that could work to support future reform. I argue that income tax became the object of colonial attention in this period.

Introduced in 1881, income tax generated very little revenue and was levied on few Indian subjects by the 1910s. The number of Indians eligible for income tax remained low as a proportion of the population through the period of constitutional reform but saw a steady numeric increase. However, it was the move from a fixed to a progressive rate of taxation in 1917 that really prompted colonial officials to pay closer attention to income tax. This reflected a growing global interest in progressive income tax in this period, as I also explore in the book, as British, European and American officials all began to think more carefully about progressive and direct taxation on incomes and wealth.

What was more particular to the Indian context, however, was that defining income for the purposes of taxation required navigating complex systems of religious personal law. As I’ve noted above, this was particularly complex in the case of Hindu families in which property was understood to be held primarily on a collective basis. But the situation was more complex than this. While the Hindu joint family was seen to be the primary unit of the Hindu legal system, the precise operation of that unit varied across the different regional schools of Hindu law and different regional High Court rulings. Thus, while income tax legislation was drawn up centrally, at an all-India level, it was applied to property relations that varied within as well as between religious communities. Tax officials were thus drawn into debates about the reform and codification of Hindu personal law firstly to defend their interest in taxing the HUF as a single unit, which under the progressive system of taxation generated more income for the state; and secondly because of an administrative interest in having clarity about Hindu property relations to apply income tax in as effective a way possible.

This helps us to understand why the wartime colonial administration was willing to give legislative time and resources to the Code Bill. But it also helps to underline the deep entanglement of public space of financial law with the private, domestic space of the family that is present in all societies but which, because of personal law, had particular dynamics in British India. Recent studies are helping to illuminate the long history of this entanglement in colonial South Asia, I’m thinking here in particular of Julia Stephens’ work on Islamic law; my books argues that the Code Bill reflects a key reworking of the relationship between ‘economy’ and ‘family’ in the context of emerging representative government.   

RR: A significant argument your work makes is that the Hindu Code Bill and the modernization drive it propagated was embedded in its desire to establish the Hindu family as an economic unit. I link this to Anupama Roy’s work on gendered citizenship where she argues that the distinctiveness of the identity of the Indian citizen lay in them being marked by dual identity i.e. as part of the nation, and as part of the religious community where both compete for precedence with gender as the underlying premise. How does this linkage between the emerging nation state and Hindu family reconstitute gendered citizenship in the context of the postcolonial nation state?

EN: I see the Hindu Code Bill as constructing the Hindu family as an economic unit that straddles or connects both the nation and the religious community. Ritu Birla has also made this argument in relation to the reform debates of the 1930s, but I think the Code Bill is critical in the precise way that it pins these relationship into law and into the foundations of the post-independence Indian state.

I’ve explained above how the book traces the contestation between colonial administrators who wanted to define the Hindu family as a single, high income generating unit, and Hindu legislators who argued that the Hindu conjugal unit was instead the economically productive and powerful component of the Hindu legal system. This argument allowed legislators to refute colonial framings of Hindu law, and the community it governed, as backward and premodern. Indeed, at key moments of the debate, particularly in 1929 around the time of the Sarda Act agitation, reformers went beyond this, arguing that, in its ability to care for and support Hindu women as wives, the financially autonomous Hindu conjugal unit demonstrated that Hindu society was more compassionate and progressive than the colonial administration. Significantly this was an argument that marked the Hindu family as a modern economic unit on the basis of the care it provided to women as dependents, not on the basis of the autonomy it gave to women family members.

The Hindu Law Acts, passed in 1955 and 1956, did much to cement this view of the Hindu family. The Acts worked to ‘rationalise’ regional differences in marriage, adoption and property rights, to introduce new rights of testamentary succession to generate a single all-India body of Hindu law that could be harmonized more easily with all-India, ‘national’ financial policy. This transformed the Hindu family unit from one that could be ‘milked’ by a foreign state more committed to imperial commitments, to one that could work to support and nurture a national economy focused on a nation state. We can see this in terms of post-colonial income taxation but also with other policies that underpinned the new government’s national economic planning, for example the zamindari reform legislation. The Code Bill thus worked to anchor a framework for national production at the heart of which was a patriarchal model of domestic labour centered around the supposedly ‘modern’ conjugal unit rather than the ‘traditional’ joint family.

At the same time, the Law Acts have been used to argue for the fact that Hindu patriarchs are more committed to the financial welfare and protection of their female family members than male leaders of communities whose legal systems have not undergone state codification, most notably the Indian Muslim community. These arguments were made particularly prominently in the responses to the Shah Bano case and discussions about the enactment of a Uniform Civil Code.

The Code Bill thus marks the continuation of the distinctive nature of Indian citizenship noted by Anupama Roy, but, through its constituting of the Hindu family as an economic unit, has worked to draw nation and Hindu community into a relationship that is not reproduced with other religious community groups. This is a critical aspect of Hindu majoritarianism which goes beyond the question of community size and is much more connected to the distinct relationship between the Hindu community and the structures of state governance.