Harnessing Energy Through Knowledge

UNIVERSITY OF PETROLEUM & ENERGY STUDIES

COLLEGE OF LEGAL STUDIES

DEHRADUN

Project - 1

TOPIC – RISE AND GROWTH OF HINDU FUNDAMENTALISM IN POST INDEPENDENT INDIA

Submitted To Submitted By

Dr.Vinita Singh Daya Shankar Tiwari

Assistant Professor SAP ID- 500012046 S COLS, UPES Secton - A

ACKNOWLEDGEMENT

This project would not have been accomplished without the assistance and

guidance of University of Petroleum &Energy Studies of which we are the

students. It is indeed, the cooperation of college that we have been successful in

presenting this project to the reader.

We are highly obliged to our teacher Dr Vinita Singh for the time she has

devoted for our project & help us a lot in every prospect.

This work would not have been completed without the blessing of our Parents. I

am also grateful to my seniors who has assisted me in formulating the structure

of this project. I would also like to thanks all my friends to the librarian of

college of legal studies who have also helped me in my project.

At last but not the least I will thank God without whose help& blessing I would

not be able to complete this project.

Objective of study

I am not an expert in history. But as a law student I have understood the needs

and requirements of the legal education. My project on “RISE AND GROWTH

OF HINDU FUNDAMENTALISM IN POST INDEPENDENT INDIA”

It is significant contribution which one does not get in many history books. This

project is a blend of historical facts and events, interpretation and contexts.

I have chosen this topic because I wanted to know more about the legal

education because i m a student of law and history. This project lays emphasis

on how Hindu Fundamentalism rises after the Independence. What is the role of

Hinduism in India.

Lately there has been a lot of discussion about uniform civil code. And the

discussion keeps popping up from time to time. Lot of the discussion happen

without even understanding what does uniform civil code mean.

Article 44 of the Constitution of India states that

The State shall endeavour to secure for the citizens a uniform civil code

throughout the territory of India.

Introduction:-

India, i.e. Bharatavarsha, or the land of Bharata is a great country. Her civilization is vast and

varied. This sub-continent provides the most distinctive features in the co-existence of unity

in diversity. In the past the foreigner travelers like Megasthenes, Fa-Hsien, Huan Tasang,

Alberuni, Marcopolo and Ibn Batuta -observed and recorded this- “the distinctive feature of

India in its unity and diversity is also reflected in the social ethos”.1

Unity implies oneness or a sense of we-ness, meaning integration along with higher levels of

co-operation, mutual understanding, shared values, common identity and above all national

consciousness. However, unity does not mean uniformity which implies similarity. Unity

may be born out of similarity. On the other hand diversity denotes collective differences so as

to find out dissimilarities among groups of people, biological, religious, linguistic etc.2

India has no state religion, it is a secular state. The major religions in India are Hinduism,

Islam, Christianity, Sikhism, Buddhism, Jainism, Zoroastrianism, Judaism and Baha’ism.

Notwithstanding the various diversities evinced in India, there are the bonds of unity which

are located in certain underlying uniformity of life as well as in certain mechanism of

integration.

The concept of national integration includes two processes i.e. the process of nation building

and state building. Nation building involves doing away with casteist, linguistic and regional

lines on the one hand and psychological sense of unity on the other hand.3

DEFINTION OF CODE:

Strictly speaking, a “code” may denote a Constitution or similar Public- law enactment of

fundamental laws; but more usually the term is limited to compilations of the Private

laws(Contracts, Torts, Property, agency, Marriage, Matrimonial Property and related

matters), although many countries have codifications of their Criminal law, Criminal

Procedure, Civil Procedure and Commercial Law.

It is in the general sense of there being a collection in a single, comprehensive statute of

particular national laws on one or more main subjects that the code law systems are normally

opposed to un-codified, or common law systems. In the latter systems, in general, the private

law at least remains un- codified body of what were originally custom-derived rules or

principles that purport to be reflected in the judgments of the highest national courts and in

piecemeal statutes that may be passed ad hoc to correct or extend those judicial decissions4.

DEFINITION OF CIVIL LAW:

A phrase applied principally to that group of laws which has grown upon the continent of

Europe as a   combination of Roman and Germanic traditions together with ecclesiastical,

feudal and local influences.The civil law has traditionally been the law of most of Continental

Europe; from there it spread to Latin America and later to those countries of Asia and Africa

which found it necessary to westernize their laws; i.e., Japan(1890-98), China(1929-31),

Thailand(1925), Turkey(1926) and Ethiopia(1958-60). It also prevails, supplemented by

religious laws or native customs by and large in those regions which were, or still are,

colonies, protectorates or trust territories of france(Morocco, Tunisia, Algeria, Guinea, Mali

and other territories in Africa, the West Indies and Oceania, Belgium, Congo, Ruanda-

Urundi), the Netherlands(Indonesia, Dutch, West Indies), Portugal and Italy(Somalia). Civil

Law, supplemented by Islamic law has also come to prevail in the countries of the nearest

east but not in Libya and Iraq, where Common law has been influential5.

This legal system is derived from Roman law. It is different from the Common law; the

system generally adhered to in England and other English speaking countries. Civil Law is

based on a system of codes, the most famous of which is the Code Nap.le/on(1804), and

decisions are precisely worked out from general basic principles a priori. Thus the Civil law

judge follows the evidence and is bound by the conditions of the written law and not by

previous judicial interpretation. Civil law influences Common law in jurisprudence and in

Admiralty, Testamentary and Domestic relations; it is also the basis for the system of

equality. It is prevalent in Continental Europe6.

DEFINITION OF STATUTE LAW:

A Statute law defined by the famous English Lawyer Sir Edward Coke (d. 1634) as “an act of

Parliament made by the King, the Lords and the Commons7. The statutes are classified as

1. Public General Acts;

2. Local or Local and Personal Acts including public Acts of a Local character;

3. Private personal Acts;

4. Church assembly Measures.

COMPARISION OF CIVIL LAW AND COMMON LAW:

It is difficult to define what constitutes the real difference between Common Law and Civil

law. It would be erroneous simply to identify Civil law with codified or even statutory Law,

and the Common Law with Judge-made or Case –law. The main difference between the

systems consists of the ways in which the norms of the law are articulated and in which new

rules are derived from the older ones in novel cases8.

THE PRE-COLONIAL LEGAL SYSTEM

Before the advent of colonial rule, India did not have a uniform legal system. The law was

not fixed and unalterable body of knowledge based on the scriptures. Social norms were

defined by Philosophers, Social thinkers, teachers and not by political leaders or religious

heads. No centralized legal system prevailed across the country.9 

Each community in the pre- British period had its own personal laws. Relations between

individuals who were Hindus were governed by the Hindu Laws and relations between

Muslims by the Muslim Law. The tribal followed their own customs and traditions. During

that period, India had a legal regime described as an “Intra- Sovereign system of laws”10.

However, there was a great diversity in the sources of laws of each community, which

emerged from the local traditions and customs. As a result, there were certain amount of

overlapping also with people from one region adopting the laws of inheritance and succession

followed by another, regardless of their religious affiliations.11

THE COLONIAL LEGAL SYSTEM:

The flexible systems perplexed the Britishers due to which they felt an urgent need to make

laws for the India in respect of civil and criminal liability, property, contract, procedures of

Civil and Criminal Courts. The policy of the Britishers was non- interference with the

indigenous traditions and customs12.

The British adopted the policy of conformity to religion and that too the religion and customs

of the Brahminical tradition in the process of changing Personal law. This decision of the

British to rely on religious scriptures for defining law in India based on their understanding

that all matters pertaining to matters of marriage, divorce, succession etc., fell within the

scope of the ecclesiastical law13.

EFFECT OF COLONIAL LEGAL SYSTEM:

As a consequence a Hindu and a Muslim had to be clearly defined for the purpose of the rigid

laws. Therefore, there was a break-down of the overlapping community identities leading to

the formation of community identities based on rigid religious boundaries. The colonial

obsession with scripturalism/ textualism, led to a new notion of religious community with

rigid and closely guarded boundaries around them14.

THE CONCEPT OF UNIFORM CIVIL CODE:

The year 1947 marked the liberation of the Indian people from the yoke of the colonial

domination. The period after independence witnessed (a) evolution of a new class, (b) the

proclamation of the Indian constitution based on the principles of democracy and civil

liberty; and (c) the formulation of a development policy based on egalitarian power equation.

Part IV of the Indian Constitution contains the DIRECTIVE PRINCIPLES OF STATE

POLICY. The Directives may be classified into three groups:

1. Social and Economic Charter

2. Social Security Charter

3. Community welfare Charter

In the community welfare charter Article 44 requires the “state to secure for the citizens a

Uniform

Civil Code throughout the territory of India. Section 21A, the Special Marriage act, 1954

and The Goa Uniform Civil code give the notion of existence of UCC. 

Article 44 of the Indian Constitution requires the State to secure for its citizens a Uniform

Civil Code throughout the territory of India. The term ‘civil code’ is used to cover the entire

body of laws governing rights relating to property and personal matters such as marriage,

divorce, maintenance, adoption and inheritance. The object of this code is to enhance national

integration by eliminating contradictions based on ideologies. It aims to bring all

communities on a common platform on matters which are currently governed by diverse

personal laws. However, even after 60 years of independence, our law makers are yet to give

effect to this provision.

Need for a Uniform Civil Code:

Ours is a country with several different religions and belief systems. The accepted principle

of law is that personal belief systems and laws must be in conformity with the Constitution

and not the other way round. Article 25 of the Constitution guarantees to every person the

freedom of conscience and the right to profess, practice and propagate religion. Article 26 of

the Constitution guarantees to every religious denomination the right to manage its own

affairs in the matters of religion. No set of laws can violate these Articles, which essentially

protect the religious freedom of different person or communities. We are thus presented with

a situation that seems somewhat contradictory; how can there be a uniform set of laws which

protects religious freedom at the same time? The implementation of a uniform set of laws

calls for discarding certain personal laws which go against society’s general outlook as a

whole, and this may amount to violation of the above mentioned Articles of the Constitution.

With multiple belief systems, come multiple ideological conflicts. To live together in

concurrence with such diversity, we need to have uniformity at some level so as to avoid such

conflicts. What we need is a Uniform Civil Code in the form of a sophisticated, harmonized

system of legal regulation that maintains and skillfully uses the input of personal laws and yet

achieves a measure of legal uniformity. As long as the code does not go against the essence

i.e. the core or fundamental belief of any particular religion, it will not go against the

religious freedom guaranteed by the Constitution.

Position of the Legislature:

The question of implementation of a common Civil Code has been raised mainly with regard

to matters where, the personal laws of a religious community have been challenged in the

court of law as being violative of the Constitution or against general public interest.

Our law makers have generally shied away from legislating on such points of personal law as

are considered to be of controversial or sensitive nature, for fear such legislation being

labeled as an intrusion on the above rights thereby resulting in strong backlash. This became

evident from the reaction to the judgment of the Supreme Court in the Shah Bano case which

gave a divorced Muslim woman the right to claim maintenance even after the period of iddat.

If the amount known as meher, paid to her on divorce was not sufficient for her livelihood,

she could claim maintenance under S.125 of the Criminal Procedure Code (Cr.P.C). There

was great agitation against this decision, led by Mullas and Maulvis and other fundamentalist

sections, as being against the tenets of Islam. Succumbing to the pressure of vote-bank

politics and in order to appease the Muslim fundamentalists, the Rajiv Gandhi government

enacted The Muslim Women (Protection of Rights in Divorce) Act to undo this decision.

This Act exempted Muslims from the general law regulations of the Cr.P.C, including S.125.

It tried to restrict the divorced Muslim woman’s right to maintenance up to the iddat period

only and provided that under section 3(1)(a) a divorced women is entitled to reasonable and

fair provision and maintenance within the iddat period.

Similarly in case of the Adoption of Children Bill 1972, the Muslim community opposed a

uniform law regarding adoption applicable to all communities since Islam does not recognize

adoption. Due to this opposition, the bill was subsequently dropped and reintroduced in 1980

with an express clause of non-applicability to Muslims. This was again opposed, this time by

the Bombay Zoroastrian Jashan Committee, which formed a special committee to exempt

Parsis from the bill. The Adoption of Children Bill, 1995, was passed by both Houses of the

Maharashtra legislative assembly, but is still awaiting presidential assent.

What needs to be understood is that ‘the religion of an individual or denomination has

nothing to do in the matter of socio-economic laws of the State.’ The freedom of religion

conferred by the Constitution is not absolute and by no means does it allow religion to

contravene the secular rights of the citizens and the power of the State to regulate the socio-

economic relations. Basically, a Common Civil Code will override only those personal laws

which do not form the essence of any religion. The key word here is ‘essence.’ Personal laws

which form the fundamental basis or the core of any belief system are ideally, excluded from

the purview of the Common Civil Code.

Position of the Supreme Court:

The Supreme Court seems to have a divided opinion on the introduction of a Uniform Civil

Code. On one hand, it has rejected attempts to do so through public interest litigation but on

the other, it has recommended early legislation for its implementation.

In Pannalal Bansilal v. State of Andhra Pradesh, it held that a uniform law though highly

desirable, the enactment thereof in one go may be counter-productive to the unity and

integrity of the nation. Gradual progressive change should be brought about.

Similarly, in Maharishi Avadhesh v. Union of India, the Supreme Court dismissed a writ

petition to introduce a common Civil Code on the ground that it was a matter for the

legislature and in Ahmedabad Women Action Group v. Union of India, the Supreme Court

showed reluctance to interfere in matters of personal law.

But in Sarla Mudgal v. Union of India, the Supreme Court directed the then Prime Minister

P.V. Narsimha Rao to take a fresh look at Article 44, which the Court held to be imperative

for both protection of the oppressed and promotion of national integrity and unity. It

instructed the Union Government through the Secretary to Ministry of Law and Justice to file

an affidavit, enumerating the steps taken and efforts made by the Government towards

achieving a common civil code for the citizens of India. The Division Bench of Kuldip Singh

and R.M. Sahai said that since 1950 a number of Governments have come and gone but have

failed to make any efforts towards implementing the constitutional mandate under Article 44.

It is based on the concept that there is no necessary connection between religion and personal

law in a civilized society. No religion permits deliberate distortion. Marriage, succession and

the like are matters of a secular nature and therefore can be regulated by law. Unfortunately,

it was later clarified in an appeal that the direction issued by the Court was only an obiter

dicta and not legally binding on the Government.

In John Vallamattom v. Union of India, it was held that Articles 25 and 26 of the Constitution

protect only those rituals and ceremonies which form an integral part of a religion, and that

matters of a secular character cannot be brought under the guarantee enshrined under them.

The Chief Justice of India firmly emphasized that enactment of Uniform Civil Code would

end all such problems arising out of ideological conflict.

In Danial Latifi v. Union of India, a very controversial question of political significance (in

the background of a secular constitution and the concept of welfare state) was revisited i.e.

whether or not a divorced Muslim woman after divorce post iddat period is entitled to

maintenance by her husband. Here, the Supreme Court adopted a middle path and held that

reasonable and fair provisions include provision for the future of the divorced wife (including

maintenance) and it does not confine itself to the iddat period only.

Implementation at State-Level:

Even though a nation-wide Civil Code is not yet in place, a positive step in this direction has

already been taken. The state of Goa has enacted a set of ‘Family Laws’, which is applicable

to all communities; Hindus, Christians, Muslims and others. There is no discrimination on the

basis of religion, caste or gender. The Goa civil code is largely based on the Portuguese civil

code of 1867, with some modifications based on the Portuguese Decrees on Marriage and

Divorce of 1910, the Portuguese Decrees on Canonical Marriages of 1946, and the

Portuguese Gentle Hindu Usages Decrees of 1880. It includes laws governing marriage and

divorce, succession, guardianship, property, domicile, possession, etc. Muslim

fundamentalists opposed its enactment in the early 1980s but their attempts to introduce

Sharia law in Goa were ultimately met with defeat by liberal Muslims who insisted on the

continuance of the unified civil code. Former Chief Justice Y.V. Chandrachud expressed

hope that the Goan Civil Code would one day “awaken the rest of bigoted India and inspire it

to emulate Goa.”

There are two important aspects of this code which assume great significance in the context

of codification of Indian laws:

· Civil registration of marriage is mandatory. Around 98 percent of Goan marriages take

place under Community Property law by virtue of which, each spouse automatically acquires

joint ownership of all assets already in their possession as well as those due to them by

inheritance. These assets may not be disposed of or encumbered in any way by one spouse

without the express consent of the other.

· The registration of births and deaths is also mandatory.   The children of deceased parents

fall in the category of mandatory heirs.  They cannot be disinherited whether male or female,

except under extraordinary circumstances. If the deceased parent leaves no will, all

mandatory heirs are entitled to an equal share of the estate of the deceased. If the deceased

has made a will, he may only dispose of 50 percent of the estate. This is called the quota

disponivel.  The remaining 50 percent must be divided equally among all mandatory heirs. 

Such a provision ensures the just distribution of assets among all children, whether male or

female.

Codification:

The biggest obstacle in implementing the UCC, apart from obtaining a consensus, is the

drafting. Should UCC be a blend of all the personal laws or should it be a new law adhering

to the constitutional mandate? There is a lot of literature churned out on UCC but there is no

model law drafted. Many think that under the guise of UCC, the Hindu law will be imposed

on all. The possibility of UCC being only a repackaged Hindu law was ruled out by Prime

Minister Atal Bihari Vajpayee when he said that there will be a new code based on gender

equality and comprising the best elements in all the personal laws.

The UCC should carve a balance between protection of fundamental rights and religious

dogmas of individuals. It should be a code, which is just and proper according to a man of

ordinary prudence, without any bias with regards to religious or political considerations. 

Here is an overview of the essentials of the UCC:

Marriage and divorce:

 

The personal laws of each religion contain different essentials of a valid marriage. The new

code should have the basic essentials of valid marriage which shall include:

(i) The new code should impose monogamy banning multiple marriages under any religion.

Polygamy discriminates against the women and violates their basic human rights. Thus,

monogamy should be imposed, not because it is the Hindu law, but because it adheres to

Article 21 of the Constitution[15] and basic human values.

(ii) The minimum age limit for a male should be 21 years and for a female should be 18

years. This would help in curbing child marriages. Punishment should be prescribed for any

person violating this provision. Also, punishment for other persons involved in such an act,

like the relatives, should be prescribed which would have a deterrent effect on the society.

(iii) Registration of marriage should be made compulsory. A valid marriage will be said to

have solemnised when the man and the woman sign their declaration of eligibility before a

registrar. This will do away with all the confusion regarding the validity of the marriage.

(iv) The grounds and procedure for divorce should be specifically laid down. The grounds

enumerated in the code should be reasonable and the procedure prescribed should be

according to the principles of natural justice. Also, there should be a provision for divorce by

mutual consent.

Succession and inheritance:

 This area throws up even more intractable problems. In Hindu law, there is a distinction

between a joint family property and self acquired property which is not so under the Muslim

law. The Hindu Undivided Family (HUF), formed under the Hindu law, run businesses and

own agricultural lands. Under the UCC, this institution of HUF, peculiar to the Hindus, has to

be abolished. There are also fetters imposed on the extent to which one can bequeath property

by will under the Muslim law. Considering all these, the UCC should include:

(i) Equal shares to son and daughter from the property of the father, whether self acquired or

joint family property. There should be no discrimination based on sex in the matters of

inheritance. The provisions of the Hindu Succession (Maharashtra Amendment) Act, 1994

can be taken as guiding principles wherein the daughter of a coparcener shall by birth become

the coparcener in her own right in the same manner as a son and have the same rights in the

coparcenary property as she would have had if she had been a son, inclusive the right to claim

by survivorship and shall be subject to same liabilities and disabilities as the son.

(ii) Provisions for inheritance of the property of mother, which she has self acquired or

acquired through her father or relatives.

(iii) The provisions relating to will should be in consonance with the principles of equity.

There should be no limitations imposed on the extent to which the property can be

bequeathed, the persons to whom such property can be bequeath and the donation of the

property by will for religious and charitable purpose.

(iv) The essentials of valid will, the procedure for registration and execution of the will

should be provided for.

(v) Provisions for gifts should not contain any limitations, though essential of valid gift and

gift deed should be specified.

Maintenance: The maintenance laws for the Hindus and Muslims are very different. Apart

from personal laws, a non-Muslim woman can claim maintenance under Section 125 of Code

of Criminal Procedure. A Muslim woman can claim maintenance under the Muslim Women

(Right to Protection on Divorce) Act, 1986. Apart from maintenance of wife, there are also

provisions for maintenance of mother, father, son and unmarried daughter under the Hindu

law. The UCC should contain the following with regards to maintenance:

(i) A husband should maintain the wife during the marriage and also after they have divorced

till the wife remarries.

(ii) The amount of alimony should be decided on basis of the income of the husband, the

status and the lifestyle of the wife.

(iii) The son and daughter should be equally responsible to maintain the parents. The reason

for this being that if she claims equal share of the property of her parents, she should share

the duty to maintain her parents equally.

(iv) The parents should maintain their children - son till he is capable of earning on his own

and daughter, till she gets married.

Thus based on these fundamental principles, an unbiased and fair UCC can be framed which

will be in consonance with the Constitution.

Working of UCC and the Indian scenario:

How foolproof will be the UCC? Will there be more abuse and less obedience of UCC? Will

UCC have negative effect on the society? Such questions are bound to be raised after the

implementation of the UCC. All laws are formulated to be obeyed, but they are abused. This

doesnot mean that law should not be implemented. Similarly, there is a great possibility of

the UCC being abused, but this should not eschew the Parliament from enacting the UCC; the

social welfare and benefits resulting from the implementation of UCC are far greater.

While explaining the reason for including Article 44 in the Directives Principles, it was

observed,

"When you want to consolidate a community, you have to take into consideration the benefits

which may accrue to the whole community and not to the customs of a part of it. If you look

at the countries in Europe, which have a Civil Code, everyone who goes there forms a part of

the world and every minority has to submit to that Civil Code. It is not felt to be tyrannical to

the minorities."[16]

Some legal experts argue that progressive law is welcomed but a suitable atmosphere must be

created in which all sections feel secure enough to sit together and cull out the most

progressive of their personal laws. But this can be answered by an example of Hindu law.

When the Hindu Code Bill, which covers Buddhist, Sikhs, Jains as well as different religious

denominations of Hindus, was notified, there was a lot of protest. And the then Law Minister,

Dr. Ambedkar, had said that for India’s unity, the country needs a codified law. In a similar

fashion, the UCC can be implemented, which will cover all the religions, whether major or

minor, practiced in India and any person who comes to India has to abide by the Code.

Not many know that a UCC exists in the small state of Goa accepted by all communities. The

Goa Civil Code collectively called Family Laws, was framed and enforced by the Portuguese

colonial rulers through various legislations in the 19th and 20th centuries. After the liberation

of Goa in 1961, the Indian State scrapped all the colonial laws and extended the central laws

to the territory but made the exception of retaining the Family Laws because all the

communities in Goa wanted it. The most significant provision in this law is the pre nuptial

Public Deed regarding the disposal of immovable and movable property in the event of

divorce or death. During matrimony, both parents have a common right over the estate, but

on dissolution, the property has to be divided equally; son and daughters have the equal right

on the property. As the procedure involves compulsory registration of marriage, this

effectively checks child and bigamous marriage. 

The philosophy behind the Portuguese Civil Code was to strengthen the family as the

backbone of society by inculcating a spirit of tolerance between husband and wife and

providing for inbuilt safeguard against injustice by one spouse against the other. 

Commenting that the dream of a UCC in the country finds its realisation in Goa, former Chief

Justice of India Y.V. Chandrachud had once expressed hope that it would one day "awaken

the rest of bigoted India."