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History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v7.c96.s2: Chapter XXXVII. Future Trends

History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v7.c96.s2

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English

Contents

Chapter XXXVII. Future Trends

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After the battle of Plassey in 1757 the civil government of the three large provinces of Bengal, Bihar and Orissa came under British rule from 1765. From 1818 when the last Peshwa Bajirao II was defeated and became a pensioner, the British were in control over the whole of India except Punjab, which was subdued in 1845. The British left India in 1947. Therefore, they were rulers over a large part of India for 180 years, over the whole of it except Punjab for about 130 years and over Punjab just about 100 years. The impact of British occupation during these periods on Hindu society was tremendous in all spheres, physical, mental and moral. The changes effected during these years of British rule were of such magnitude that they far exceeded the changes that occurred in hundreds of years before the coming of the British With the advent of British rule came a new system of Government on an all India basis, establishment of courts of justice on Western patterns, laws that applied to all Indians without distinction, modern individualistic liberty, Western pattern of living at least in towns and cities, an educational system placing all Indians on the same level, newspapers, better means of transport, study of modern science, English literature and arts &c.

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The present author has no intention of writing anything on the all round changes that have taken place in India under British rule. All that he proposes to do in this chapter is to indicate briefly the effects that are likely to be produced on Hindu society, its ancient ideals and values in the near future, on account of science and modern ideas, the Constitution framed for Indian democracy, the idea of a secular State, socialistic pattern of society, economical planning, legislation, growth of population and means to check it.

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But before he deals with the above subjects, it is necessary to give a rapid review of the state of things before Independence was achieved. Lord Ripon as Viceroy of India in 1882 started a scheme of local self-government by means of municipal corporations in the cities and district and local Boards in the rural areas. Thus after about 120 years from 1765 when British rule was first established in a large part of India, the British thought fit to associate the conquered people in managing some of their own (unimportant and petty) affairs Colonialism on the part of the British had reached its peak by that time. The British imported raw materials like cotton from India, processed them in Manchester and exported the manufactured products back to India's immense market. At the instance of British manufacturers laws were passed in Britain forbidding the import of Indian silk and cotton goods. India was drained of wealth by that policy for over a hundred years and India became one of the poorest countries in the world Dadabhai Naoroji in his ‘Poverty and un-British rule in India’ (London, 1901, 675 pages) demonstrated this very ably. The main elements of the colonial rule of Britain were these, complete political subjection existed, the main economic activity was in the hands of foreigners, it was foreign capital that was employed in India and substantial dividends or interest on the capital were guaranteed in some cases like the Railways by the British rulers of India payable from the taxes imposed on Indian people, the control of large enterprises was in foreign hands and directed towards securing foreign interests, the land and people were used as instruments of the purposes of Britain. India got peace and political unity at the cost of enormous poverty and distress and many of the economic problems that beset present day India have to be traced back to the disastrous colonial policies of Britain.

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The army of the Government of India was for over a century entirely officered by the British. There were in the 20th century about 7000 officers (lieutenants, captains, majors, colonels) among whom not one Indian held the King’s commission till after the first world war. Then a few were sent every year for training to England The examination for entry in the Indian civil²⁶³⁵ Service (the ‘Steel frame’ of the Indian administration, as one great British Prime Minister was pleased to call it) was held in England (in spite of a Resolution of the House of Commons that the examination for appointment to the Indian Civil Services in 1893 should be held simultaneously in India and England). Only a few Indians in the last quarter of the 19th century could go to England and qualify for entry in that heaven-born service. District officers such as Collectors, District Judges, Police Superintendents, Medical officers (of the Indian Medical Service) were almost all British. Almost all Professors in colleges and the head masters of even some secondary schools were Englishmen. All the books to be used in schools were prescribed by the Head of the Department of Public Instruction in the several provinces, all of whom were Westerners. Even primary education was being given only to a small fraction of the children of school-going age, even in 1947 when the British left. The elements of colonial rule by Britain and the policies pursued by the British rulers are emphasized here solely as warnings to present warring elements in our country that if they pursue their quarrels to bitter ends the nation may again be plunged into a miserable state by invasions from powerful and hostile neighbours.

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²⁶³⁵ A well known jibe in the author's youth was that an I. C. S. was neither Indian (almost all were British in those days) nor civil nor a servant (but he was the master of the destinies of poor India). Munro wrote in 1817 a memorandum to Lord Hastings from which two sentences may be quoted ‘there is perhaps no example of any conquest in which the natives have been so completely excluded from all share of the Government of their country as in British India Foreign conquerors have treated the natives with violence and often with great cruelty, but none has treated them with so much scorn as we’ pp 273-74 of ‘the Making of Indian Princes’ (London, 1943) by Edward Thompson Vide G W. Forrest's ‘Selections from the Minutes and other official writings of Elphinstone’ (London, 1884) p 102 for reproach against British rule in India

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Morley (who was Secretary of State for India and who was believed by many Indians to be a man of liberal or even radical views) introduced separate communal electorates for Moslems in the reforms of 1909 and he was firmly of opinion that a Parliamentary system in India should not be established in the foreseeable²⁶³⁶ future It is unnecessary to refer in detail to Montagu's famous speech in 1917, characterizing the Indian Government as too wooden, too antediluvian for modern times, to his statement (the reverse of Morley's views) that 'the policy of the British Government is the gradual development of self-governing institutions with a view to the progressive realization of responsible Government in India as an integral part of the British Empire,' the failure of Dyarchy introduced by Montagu, the Rowlatt Acts, unrest in Punjab, General Dyer's proclamation declaring any assembly of four or more persons as unlawful, his shooting of men, women and children assembled in Jallianwallah Bagh for a meeting in defiance of the proclamation, when, even according to Government statistics, 300 people were killed and 1200 injured, Dyer's compulsory retirement and the presentation of a purse of thirty thousand pounds to him by his British admirers for saving the British Empire (as they then thought).

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²⁶³⁶ *Vide* the volume of "Indian Speeches" by Viscount Morley (p. 92) where he says "If my existence, either officially or corporcally, were prolonged twenty times longer than either of them is likely to be, a Parliamentary system in India is not at all the goal to which I would for one moment aspire?' Even so late as 1941 Sir G Schuster in "India and Democracy" (MacMillan, 1941) strongly expressed the view that Parliamentary democracy of the Westminster pattern would not suit India and that Indians would have to work out a system of their own. He does not even indicate how, while the British ruled India, a democratic system could be evolved by Indians and in how many years.

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The introduction of education through English was espoused by Lord Macaulay in his 'Minute on Indian Education'. Why he insisted on the education of Indians through English is stated in the Minute as follows: 'We must at present do our best to form a class who may be interpreters between us and the millions whom we govern, a class of persons Indian in blood and colour, but English in taste, in opinion, in morals and intellect'.²⁶³⁷ English education caused great wastage of effort in learning all subjects (including even Sanskrit) through English and led to a disproportionate pursuit of literary studies and neglect of scientific and technological subjects and created a wide gulf between the educated and the uneducated masses; it glorified Western culture and did not help Indians to study and appreciate their own culture Educated Indians, particularly in the earlier period of English education in India, came to entertain an exaggerated respect for Western institutions and unduly disparaged their own social and religious systems.

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²⁶³⁷ Vide 'Speeches by Lord Macaulay' with Minute on Indian Education, edited by G. M Young (Oxford Un. Press 1952). The minute is on pp 344-361 On p. 349 he makes the following statement 'I have conversed both here and at home with men distinguished by their proficiency in the Eastern tongues *I have never found one among them who could deny that a single shelf of a good European Library was worth the whole native literature of India and Arabia*' Vide p 359 of the above work for the above oft-quoted passage

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The British Government's interest in Indian education (particularly higher education) was lukewarm. Three Universities (of Bombay, Calcutta and Madras) were first established in 1857 for the whole of India, but they were merely examining bodies. In the whole of the Bombay Presidency there was no Science Institute entirely maintained by Government till about 1920. An Indian could pass the M. A. examination in Philosophy without knowing anything about ancient Indian philosophy till only a few years ago. However, English education by Government and missionaries produced a result exactly opposite of what was expected by them. The missionaries miserably failed in securing the Indians (except a few among the lower castes and *ādivāsis*) for Christ and Government found that reading the classics of English literature and works of men like Burke, Spencer, Mill and others created among the educated emotions of nationalism and discontent with their own abject political status. Political agitation daily increased. Lokamanya Tilak was called 'the father of Indian unrest' by an English writer. He passed away in 1920. But his mantle fell on Mahatma Gandhi, who while agitating for political power and eventual freedom, adopted the technique of *satyāgraha*.

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It is not necessary to go into the freedom struggle from 1919 to 1947 which culminated in the British leaving India but after dividing it into Pakistan and the present India. The partition of India into two parts based on merely communal considerations let loose the most hideous conflicts, massacres and flights of millions of refugees which India had ever witnessed during its long history. The giving up of a large empire with mutual consent and without war or bloodshed is a unique and unparalleled event in the whole history of the world. The message of the King of Great Britain read by Lord Mountbatten as Viceroy to the members of the Constituent Assembly was nobly and graciously worded "With this transfer of power by consent comes the fulfilment of a great democratic ideal to which the British and Indian people alike are firmly dedicated.' Dr. Rajendra Prasad's reply to the message of the King was couched in equally noble and just language 'While our achievement is in no small measure due to our sufferings and sacrifices, it is also the result of world forces and events, and last, though not least, it is the consummation and fulfilment of the historic traditions and democratic ideals of the British race" (vide 'Transfer of power in India" by Shri V. P. Menon, published by Orient Longmans, 1957, p. 415).

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The Indian Independence Act2637A was passed by the British Parliament and Royal assent was given on 18th July 1947. A Constituent Assembly had been set up by the cabinet mission (of three cabinet ministers, Pethick Lawrence, Secretary of State for India, Stafford Cripps and A. V. Alexander) and it held its first meeting in December 1946. It re-assembled in August 1947 as a sovereign body to frame a constitution for free India. Its work went on for over two years and the constitution consisting of 395 Articles and nine Schedules came into force on 26th January 1950 (except 15 Articles that came into force at once); vide Art. 394.

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2637A Vide 'Transfer of Power in India'; Appendix XI sets out the Indian Independence Act, 1947 at pp. 516-532 and Appendix XII gives Congress comments on the draft independence bill with Nehru's corrections signed by him on 3-7-47 (pp. 1-9).

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The Preamble to the Constitution of India declares that India is a sovereign democratic Republic. The extent of the Indian Republic even at present is vast. It was hardly ever under one Government, except possibly under Aśoka. In ancient times India had some *gaṇarājyas* or *sangharājyas* (oligarchic states, or republics as Jayaswal and some others prefer to call them). This question of the existence of oligarchies (or republics) in ancient India has been discussed at some length by the present author in Vol. III pp. 87-96 of the H. of Dh. He still adheres to the views there expressed. The Buddhist monks had a procedure for regulating the meetings of their *saṅgha* (as set out in the Mahāvagga IX. 3 in SBE Vol. XVII p. 264 ff and in Cullavagga IV 9, SBE Vol XX pp. 24-27 and pp. 53 ff) and Jayaswal conjectures that the same procedure was followed in oligarchies (or republics).

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There are substantial achievements to the credit of present India and its leaders during the last 14 years after Independence. Some of them may be very succinctly stated here: (1) The production of a comprehensive democratic constitution guaranteeing freedom of speech and worship, freedom of the Press, protection of the rights of minorities, equality of all before the law, equality of status to women, independent judiciary; (2) Abolition of untouchability (Art. 17). (3) political integration of India without any violence, as the five hundred and odd States (except only three), that comprised nearly 1/3rd of the total land area of India and 1/4th of the population, patriotically accepted a merger of the States in the Indian Republic (Shri V. P. Menon's 'Story of the Integration of States'), (4) Reorganization of India into 15 States and six Union Territories based mostly on linguistic unity and administrative convenience, (5) holding two elections on the basis of adult suffrage, viz. every person 2637b (male or female) who is a citizen of India, is twenty-one years of age and not disqualified under the constitution or any other law, has a right to be registered as a voter at elections to the House of the people and to the Legislative Assemblies of States (Art 326); (6) Socialistic pattern of society as the goal (Art. 38, 39), (7) Two five year plans have been carried out and a third Five Year Plan has been set on foot (under Schedule VII, list III, item 20). The creation of a democratic republic was something that India had not been acquainted with for at least twelve centuries (even if ganaṛājyas were held to be republics and not merely oligarchies). From Ṛgvedic times there was a hereditary monarchical form of rule. Vide Ṛg. VII. 33.3 and 5, VII. 83. 7-8, where the battle of ten kings (daśa rājānaḥ) with king Sudās is mentioned; vide also the story of Devāpi and Śantanu in Ṛg. X. 98 expanded in Nirukta II. 10-12.

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2637b Women had no votes in Great Britain till the first war and even now in Switzerland women have no votes (vide p. 31 of 'Switzerland in perspective' by George Soloveytchik (1954).

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Some criticism may be offered against the Constitution. In the first place, it is extremely bulky and goes into too many details and is a hotchpotch of provisions from several sources. Some provisions are derived from England, the directive principles of State policy are derived from the constitutions of Ireland and other countries of Europe, some are borrowed from the Government of India Act of 1935. Several of these need not have been put in a Constitution but should have been left to ordinary legislation. In spite of such a lengthy constitution there are many omissions. Nothing is expressly said about political parties, about industrial corporations, about relation of religions and the State. The Constitution makes a complete break with our traditional ideas. Dharmasūtras and Smṛtis begin with the dharmas (duties) of the people (varṇas and āśramas). Prime Minister Pandit Nehru himself says in his Azad Memorial Lectures on 'India to-day and to-morrow' (1959) p. 45 'All of us now talk of and demand rights and privileges, but the teaching of the old dharma was about duties and obligations. Rights follow duties discharged.' Unfortunately this thought finds no place in the Constitution

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One fact of the greatest importance in the life of India is the accession of the masses to power, not only political, but also social, economical, intellectual and moral. The Constitution engenders a feeling among common people that they have rights and no obligations whatever and that the masses have the right to impose their will and to give the force of law and justice to their own ideas and norms formed in their own cottages and tea shops.

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The Constitution of India has no chapter on the duties of the people to the country or to the people as a whole. Art 19 confers the right to seven freedoms, one of which (c) is to form associations or unions and sub-article (4) enables the State to make laws imposing, *in the interest of public order or morality*, reasonable restrictions. The framers of the Constitution forgot to include what Britain had, provided long before in 17 and 18 Geo 5, Chapter 22, Article 1, part of which runs 'any strike is illegal if it is *designed or calculated* to coerce the Government directly or by inflicting hardship on the community'. The eyes of some of the framers of this constitution were opened by the strike of Government servants in the Railways, Posts and Telegraphs by which, if it had continued for even a fortnight, crores of people would have had to submit to incalculable hardships and the action of the strikers in essential services would have been like a rebellion by some lakhs of people against over forty crores of people. The right to strike by workers tacitly given in the constitution is in imitation of similar rights enjoyed in industrial countries like Britain only for the last few decades and the framers should have restricted the right to strikes between private employers and employees as an experiment in the first instance

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Another criticism is that there are too many amendments. From 1950 there have been ten amendments, while in the U.S.A. there have been only 22 amendments during a period of about 170 years The very first amendment was made within less than a year and a half from the day the Constitution came into force. It affected about a dozen Articles, among which there were three Articles dealing with fundamental rights viz. 15, 19, 31 One fails to understand the meaning of the words 'fundamental rights' in a constitution which took over two years of deliberations, if they could be changed within a year and a half. The amendment made in Article 31 prohibits a person from challenging in a court of justice a law about the compensation to be paid to a person for compulsory acquisition of his property. This is a serious inroad on rights to private property and smacks of spoliation and arbitrariness. In the House of the People the quorum is only 50 and if 50 persons are present and a majority of them (say 26) decide that a certain amount of compensation should be paid for compulsory acquisition of several properties of a person and the compensation is felt to be ridiculously low he has no remedy in a court of law at all. Besides, the Welfare State is, if at all, foreshadowed in the Directive Principles of State Policy (Art. 38, 39 etc.), but these principles are not enforceable in a court of law and, therefore, they are inferior to fundamental rights, the breach of which can be examined by the High Court or Supreme Court, which is invested with the power of issuing writs. Parliament (Lokasabha) has over 500 members and the quorum is 50 and yet this small number is not often present and the Speaker has several times to reprimand the House of the People on this score.

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Another criticism my be offered as to the inclusion of Universities in list II (of schedule 7, State List, No. 11) and not in the concurrent list. Vocational and technical training of labour is in the concurrent list (Item 25). Is not University education throughout India of as much importance as the training of labour? Only items 63-66 (of list I, Union list) are within the exclusive jurisdiction of the Central Government.²⁶³⁸ There is hardly any weighty reason (except chance) why the Benares Hindu University, the Aligarh Muslim University, the Delhi University and Santiniketan should be treated as the exclusive concern of the Central Government and the other Universities be not placed even in the concurrent list.

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²⁶³⁸ Vide 'Our fundamental rights' by D. N. Banerjee for an exhaustive and trenchant criticism of the change made in Art. 31 (2), the speeches of the Prime Minister and of Hon'ble Mr. G. B. Pant (pp. 315-336) Calcutta, 1960.

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The Constitution in its 8th Schedule recognizes fourteen languages as the national languages of India, while Article 343 (1) makes Hindi the official language of the Union, but sub-article 2 (of Article 343) provides that English will continue to be used for all official purposes for fifteen years and sub-article 3 provides that Parliament may continue even after 1965 the use of English for purposes specified by Parliament. Even such a small country as Switzerland has three official languages. The Constitution should have provided at least two Official languages for north India and two for South India, when even in 1950 the population of India was about 36 crores. This sweeping decision to make Hindi the only official language instead of helping emotional integration of Indians produced great strife An official language is not the only means of emotional integration, nor even the chief one. The Govt. should begin with the children in the schools, should instil into their minds the fundamental cultural Unity of India, and that India has been looked upon as one by all foreign invaders, steps should be taken to make every Indian feel that he is the inheritor of the vast ancient wisdom and spiritual culture of India, that he must contribute to the conservation of that culture, and must add to its greatness in the future, and free and compulsory education for all children up to the age of 14 should have been achieved in ten years as foreshadowed in Art 45.

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A plan and programme to instil among all grown-up citizens the ideal of national integration must be prepared, insisting on our common past, common interests, common future and on elements like the wisdom and thought embodied in Sanskrit and the regional languages, the tolerance shown by our people through the ages.

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The Constitution has also committed several mistakes in the allotment of subjects in the 7th Schedule as Union list, State List and Concurrent list. For example, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors are put in the State List (item 8 in List II, State List) This has led to prohibition in some States, but also its absence in other States.

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The above discussion is enough to show that the Constitution framed after more than two years' cogitation is unsatisfactory in several ways.

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Ours is a democratic Republic. The most famous definition of democracy is Lincoln's viz 'Government of the people by the people for the people'. All three must exist in a proper democracy. In the Greek city States such as Athens all adult citizens (except slaves that outnumbered citizens) could assemble and could directly participate in discussion and the framing of laws and regulations But this is impossible when crores of people spread over a vast country are voters. Therefore, one part of Lincoln's definition becomes watered down. Crores of people cannot govern themselves, which is a physical impossibility. All they can do is to choose some men as their rulers. In former ages when monarchy was the prevailing form the ruler came to be so by succession or by conquest i. e. by breaking heads. Now, under democracy, the ruler or rulers are chosen by the mere counting of heads. As observed by Dr. Radhakrishnan in 'Kalkin or the future of civilization' (4th ed. of 1956) 'Democracy in actual working rarely permits a country to be governed by its ablest. The opinions of the mass prevail over those of the thinking few. We must strive for some better way for conducting human affairs than the lottery of the ballot-box' (pp. 20-22). René Guenon in 'Crisis of the modern world' (translated by Arthur Osborne, London, 1932) remarks 'the law is supposed to be made by the opinion of the majority, but what is overlooked is that this opinion is something that can very easily be guided or modified i. e. opinion can be manufactured. The majority on whatever question it may be called on to give its opinion is always composed of the incompetent, whose number is vastly greater than that of the men who can give an opinion based on a full knowledge of the subject' (p. 108).

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These words of René Guenon refer to conditions in European countries in most of which there has been almost cent per cent literacy for some decades. Parliamentary democracy assumes that voters understand the policies and programmes of different parties and cast their votes accordingly. It presupposes some education, intelligence, respect for the rule of law, tolerance, a sense of brotherhood for at least one's countrymen, and a more or less homogeneous society. But when, as in India at present, the vast majority of voters are illiterate, the state of things becomes far worse. We can and must tolerate democracy in India as a first step towards better days, though at present it is a mere shell and is ridiculed by some unsympathetic foreigners.²⁶³⁹ The census of 1961 discloses that literacy which was only 16.6 percent in 1951 is 23.7 percent in 1961. Dean Inge in 'Christian Ethics' (1930) remarks about politics in England where almost all voters are literate 'our politics are so corrupt that many would welcome a dictatorship.' (p. 385). About the U S A, a recent work 'Corruption in Washington' by Blair Bolles (Gollancz, London, 1960), which makes rather dismal reading, indicates the terrible moral predicament of the honest man in power caught between public responsibility and loyalty to his friends and associates. In our country also ministers and officials must be in a similar predicament, particularly when there exist numerous rules and regulations about permits and licenses galore.

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²⁶³⁹ A. Koestler in 'Lotus and Robot' (London, 1960) remarks 'India is a democracy in name only, it would be more correct to call it Bapucracy' (p 156).

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The Directive Principles of state policy are contained in Articles 37 to 51 and it is provided in Article 37 that they shall not be enforceable by any court, but that they are fundamental in the governance of the country. Article 45 enacts that the State shall endeavour to provide within a period of ten years from the commencement of this constitution *for free and compulsory education for all children until they complete the age of fourteen years.* It is more than twelve years since the commencement of the Constitution. In spite of the fact that about 7000 crores of rupees were to be spent on grandiose schemes in the two Five Year Plans, this fundamental provision was not implemented. Even free and compulsory primary education of all children up to the age of *eleven* years (instead of 14 as envisaged in Article 45) is not accomplished and it is promised that in the Third Five Year Plan (which envisages an expenditure of over ten thousand crores of rupees) this may be accomplished. But, if the huge sums for the third plan be not forthcoming, the first casualty will be education The education of the masses who are to be voters and indirectly rulers of the nation continues to be sadly neglected even after Independence.

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It is remarkable that the directive principles of state policy mostly contain provisions on the economic system for raising people's standard of living (Art. 43, 47 &c.), i e. it lays emphasis only on the material things for the people. It seems to be assumed that if material prosperity or benefits are assured for all, then there is nothing more to be done by the State The present author feels that the Directive Principles should also have put equal or greater emphasis on moral and spiritual values and should have called upon the State to promote among the people high moral standards, self-discipline, co-operation, sense of responsibility, kindliness, high endeavour. Man is a many-sided being. The satisfaction of mere physical needs is not enough. Man has intellectual, spiritual, cultural and social aspirations also The socio-economic pattern for the future must be based on the foundation of the best part of our traditions, the rule of dharma, the duties common to all as declared by Manu X. 63 and Yāj I. 122 A secular state should not and does not mean a godless state or a state that has nothing to do with moral and spiritual values. Prime Minister Nehru himself emphasizes this, when he says 'whether religion is necessary or not, a certain faith in a worth-while ideal is essential to give substance to our lives and to hold us together. We have to have a sense of purpose beyond the material and physical demands of our daily lives' (in 'Today and tomorrow' p. 8). It may be stated that for most common men and women it is religion that sets worth-while ideals.

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The third item in Lincoln's definition is 'for the people'. That is, the Government must look to the good of the people as a whole and not to that of any class or a community in the country. Modern democracy has come to mean parties and it has to work on decisions of the majority. It often happens that, there being several parties, no one party has an absolute majority over all other parties put together. It may often happen that one party secures 40% of the votes actually cast and the other parties (that differ in ideologies) secure, say 25, 20, 15, percent of the votes, then the first party with only 40 percent of the total votes cast rules, though it does not represent the majority of the whole country. The party system generally leads to a struggle for power and lowers the moral standards of the whole people, particularly when hardly one-fifth of the voters (both male and female) can read and write their own regional language. The present author does not hold that illiteracy necessarily means absence of intelligence. But, unless a man can read for himself and ponder over what he reads, he can hardly be a good judge of the pros and cons in relation to a measure or policy placed before the voters.

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Besides, the emphasis laid on standards of living without any direct reference to moral and spiritual values has already led to this result that in India the desire for material comforts and positions of power dominates almost every one and there is no corresponding urge or even idea to do one's best for producing goods. The laws are drafted in the English language. Most of the speakers in Parliament use English (a few only speak in Hindi) and complicated laws are said to have been passed by a majority or unanimously as the case may be. That country may be said to be the best governed which is least governed. There is a spate of legislation in the House of the People. In the seven years from 1950 to 56 nearly 450 laws were passed by the central legislature alone. Some of these laws vitally affect Hindus in their family relations and in other respects. A few examples only can be cited here. The Hindu Adoption Act went far beyond the ancient Hindu principles, which were two viz. that only a male could be adopted for purposes of spiritual benefit to the adopter and the person to be adopted should be in age and other matters like a son. Women could not adopt to themselves but a widow could adopt a son for the spiritual benefit of her husband. These principles have been thrown to the winds as will be seen from the criticisms of the present author above on pp. 1337-1338. But one thing must be mentioned. In some enactments affecting Hindu Law, customs have been abrogated;

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vide Hindu Marriage Act 25 of 1955, Section 4, Hindu Succession Act 30 of 1956, Section 4 (1) The Hindu Adoption and Maintenance Act (78 of 1956) prescribes that the person to be adopted must not be more than 15 years of age (section 10 item IV) and that there should be a difference of 21 years between a male adopter and a female adoptee and between a female adopter and a male adoptee (sec. 11 items iii and iv). But the provision in Sec. 10 is made subject to a custom to the contrary. It passes one's understanding why custom was allowed to prevail over the law in this case. The Hindu Marriage Act, 25 of 1955, has made sweeping changes of which the vast majority of Hindus are blissfully ignorant. Before the Act a Hindu could in theory (and rarely in practice) have two or more wives living at the same time and even an *anuloma* marriage (i. e. the marriage of a male of a higher *varṇa* with a woman born in a lower *varṇa*) was held to be invalid by some High Courts in India such as those of Allahabad and Madras Now under the present Hindu Marriage Act of 1955 the marriage is a monogamous marriage (section 5) and a person belonging to any caste may marry a woman of any caste how highsoever or lowsoever she may be by caste; and further marriages between spouses belonging to the Hindu, Sikh, Buddhist or Jaina religions are now declared valid.

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It was suggested, while the marriage Bill was in the Committee stage, that the provision as to monogamous marriages should become compulsory when a similar provision would be made applicable to Muslims (who under the Koranic law can have four wives at the same time) But this was brushed aside through fear of antagonizing Muslims Other provisions about Buddhists, Jains and Sikhs being Hindus for the purposes of the Marriage Act, being a sweeping one at one stroke, is likely to be resented by almost all illiterate Hindus and likely to lead to tension and bitterness in many rural families and to break-up of the family as a central and compact unit in Hindu society. The orthodox people do not like such mixed marriages. It is not unlikely that the orthodox sections in the country may join hands with the ignorant masses and set back the hands of the clock, when some years hence the ranks of the towering personalities of the Gandhi era whom people want to humour have become thin.²⁶⁴⁰

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²⁶⁴⁰ Vide what Mr Frank Moraes says (on p 85) in his biography of the Prime Minister Pandit Jawaharlal Nehru (1956) about people being anxious to humour him.

v7.c96.s2.35.1

One of the outstanding characteristics of Hindu society for several millennia has been the joint family system of the Mitākṣarā type which prevails in the whole of India (except in Bengal which is under the Dāyabhāga system). Its peculiarity is that all male members in the family form a coparcenary, that if any male of the family dies his interest devolves by survivorship on the remaining male members including his own male issue, if any, that females have no rights in the family property except marriage expenses and maintenance and no member of the joint family could transfer any part of the family property by will (not even the father) or by sale or mortgage except for certain recognised family necessities This joint family system and the caste system were the bulwarks that kept together Hindu Society for centuries, inspite of foreign invasions and misrule. The Hindu Succession Act (30 of 1956) makes two sweeping changes in the Mitākṣarā joint family system. The explanation to Section 30 of the Act provides that any male Hindu may dispose of by will his interest in the coparcenary property. This is one drastic change. A similar drastic change was made by section 6, its proviso and explanation read together. Briefly it comes to this.

v7.c96.s2.35.2

If a Hindu coparcener of the Mitākṣarā system dies after the Succession Act comes into force, leaving him surviving no son, but a daughter or the daughter of a predeceased son or the son of a predeceased daughter or daughter of a predeceased daughter, his interest in the coparcenary property will not pass by survivorship to the other surviving male members of the coparcenary but to the above mentioned descendants of his and the interest that would pass to these descendants would be the share in the coparcenary property that would have been allotted to him if partition of the coparcenary property had taken place immediately before his death. Before this Act, the daughter or the other heirs mentioned above would have got nothing in the coparcenary property when any male member of the family died sonless. These two changes make of the joint family of the Mitākṣarā type a mere shell. It was suggested when the Bill was before Parliament that Parliament should provide that the joint family system of the Mitākṣarā type has been abrogated and that all members of the joint family after the passing of the Act would be only tenants-in-common. But this was not done. Why the Minister in charge or the members of Parliament felt squeamish about ending the coparcenary system of the Mitākṣarā is not clear to the present author. It looks like straining at a gnat while swallowing a camel.

v7.c96.s2.35.3

These and other changes in the old Hindu Law are possibly motivated by the desire to do justice to the rights of women. But in some cases this is done with a vengeance. For reasons of space only one example of this type is cited. Under Section 8 of the Hindu Succession Act and the Schedule of heirs in class I and class II, if a man dies possessed of property leaving only his mother and father (and no sons or wife or other persons) the mother will take the whole estate of her son absolutely to the entire exclusion of the father, since the mother is placed among heirs of class I., while the father is placed in class II and the rule in Sec 8 (a and b) is that heirs put in class II succeed only if there is no heir in class I. Under Yāj II 135 the order of heirs to a man dying without male issue is first the widow, then daughter, then daughter's son or sons, then parents (*pitarau*, the dual is used). Some commentators held that the mother is to be preferred as heir to the father, others held that the father is to be preferred to the mother, while still others held that both parents should succeed together. In the Council of States (Rājyasabhā) the father was put in class I along with the mother, but in the House of the People the mother was put in class I and the father was put as heir in class II Article 15 of the Constitution prohibits discrimination on the ground of sex, religion, race &c.

v7.c96.s2.35.4

What difference can be made between the mother and the father of a man as heirs except on the ground of sex? Probably, the legislators wanted, in however small a way, to compensate women for past injustices to them The Hindu Law of Succession of 1956 goes even beyond Muslim Law in that it recognizes twelve categories of persons (in class I of Schedule) as entitled to succeed simultaneously and take the property of the deceased. In a few cases it is possible that the heirs of class I taking the estate of a deceased person may be twenty or even more, if the latter leaves five sons and five daughters, besides some children of predeceased sons and daughters There is probably no country in the world where so many persons are entitled to succeed simultaneously to a deceased person's estate. The result would be that there would be great fragmentation of property and constant wrangles and litigation. This amounts to distribution of poverty. Under the Hindu Law before 1956 women as heirs to males took as a general rule a limited estate (i. e. a life estate) For example, if a man died leaving his wife and a brother or a brother's son (but no children) his widow would take a limited estate i. e. on the widow's death, the estate would go to the brother (if alive) or to the latter's sons &c. Now (after 1956) the widow would take an absolute estate and she would be able to dispose of it as she pleased (by sale, gift or will). Vide Section 14 of the Hindu Succession Act of 1956.

v7.c96.s2.35.5

Not only this, that section has retrospectively conferred an absolute estate on the widows who succeeded as limited owners before 1956. Suppose a person died in 1950, leaving a widow and a brother. The widow would take only a limited estate and she could not sell it or will it away, if she died before 1956 the husband's brother would have succeeded to the estate. But suppose she is alive and in possession of her husband's estate when the Act of 1956 was passed. Her estate is at once enlarged. She can donate it to any one or leave it by her will to her own brother and entirely destroy the expectancy of the husband's brother to succeed to her husband's estate. This is equality of women with a vengeance The mass of people know nothing about this at present. But when many cases come before the courts and the common people come to know the present law whereby the expectancies of male members of her husband's family are set at naught by the widow transferring the property to persons that are strangers there is bound to be great trouble.

v7.c96.s2.35.6

Of all the revolutionary changes in India none will have more pervading influence and meaning than the drastic changes in the legal status of women made by the laws affecting Hindus passed from 1954 to 1956, which enforce monogamy, make polygamy punishable, which provide the minimum ages for the marriage of women and men at 15 and 18 respectively, which allow divorce to both sexes on the same basic rules, which confer rights of inheritance and absolute ownership on a daughter and her children, that allow the husband or the widow of a person, if the deceased had not already adopted a son and a daughter before his death, to adopt a son and a daughter.

v7.c96.s2.36

Several States (e. g. Bombay by Act LXVII of 1948, sec 5) have passed laws putting ceilings on the extent of the holding of lands up to 48 acres or 24 acres according as the land is ordinary or *bagait* (irrigated). This is felt by common people as a great injustice, when there is no ceiling on the wealth of big merchants and the like. It may be argued that these very rich people pay income-tax and other taxes. The agriculturists also say that they pay taxes and that inflation has made the price of bare necessities go up.

v7.c96.s2.37.1

Before leaving the subject of legislation vitally affecting Hindu society, some remarks will have to be made about the mentality of several Congressmen who appear to have great faith in making men moral by legislation. Article 47 provides that it is among the primary duties of the State to raise the level of nutrition, the standard of living of its people and the improvement of public health and that, in particular, the State shall endeavour to bring about prohibition of the consumption of intoxicating drinks and of drugs which are injurious to health The Bombay State and a few other States in India embarked on a policy of total prohibition of intoxicating drinks. If there was to be a total prohibition of intoxicating drinks, it should have been an all India measure. Several States refused to have the prohibition law because there is loss of revenue in two ways, viz. the income from excise duties on liquors is lost and large sums of money have to be spent on establishments for preventing people from manufacturing illicit liquor. Art. 45 about free and compulsory education of children of school-going age (up to 14 years) was not strenuously observed by the Bombay State but it wanted to enforce Art 47 at all costs. Besides, there being no prohibition on an all India basis, what is an offence under law in the Bombay State is not an offence in Delhi and some other States at all. That takes away the moral basis from the measure. Besides, prohibitionists forget human psychology.

v7.c96.s2.37.2

When something is prohibited or becomes rare, many feel a fascination in breaking the law or trying to possess what is rare. Illicit liquor produced and kept under the most unhygienic conditions is being sold on a large scale and persons knowing this dare not inform the police for fear of being stabbed or killed by distillers of illicit liquor2640a Minister's cook was found engaged in manufacturing illicit liquor. In the present author's opinion prohibition has turned out to be a dismal failure, it tends to corrupt the police, it reduces revenue much needed for development purposes, illicit distillation has become a cottage industry and boot-leggers have acquired a vested interst in prohibition. Why horse-racing and betting are not prohibited by law is inexplicable, except on the supposition that many people entertain that Government is afraid of displeasing rich people who indulge in it. Wine and gambling have been besetting sins from the times of the Ṛgveda. Vasiṣṭha pleads for forgiveness of sins from Varuṇa in Ṛgveda VII. 86.6 saying that 'it is not one's own power that leads one to commit sin, it is fate, wine, anger, dice (gambling) and thoughtlessness'. In Ṛg. X 34 a gambler laments over his own frailty. Therefore, all that can be reasonably attempted is temperance and reducing the spread of the drinking habit; otherwise new and greater evils not contemplated in the ardour for suppression emerge. Vide p.

v7.c96.s2.37.3

1338 above for the warning given against startling changes based on Mr. Aldous Huxley's words. Another faddist attempt at improving morals by legislation is the recent Act prohibiting dowries, which came into force on first July 1961. The giving or taking or abetting the giving or taking of dowry or demanding a dowry directly or indirectly from the parents or guardians of a bride or bridegroom is punishable with imprisonment extending to six months or with fine extending to five thousand rupees or with both. The definition of dowry punishable²⁶⁴¹ under the Act is rendered practically nugatory by the explanation that presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of the section, unless they are made as consideration for the marriage of the said parties. This, instead of relieving the parents of marriageable girls from the payment of a dowry, would give rise to blackmail on the part of busy bodies in the town or the village of the parties. If this latter does not happen the Act will ordinarily remain a dead letter.

v7.c96.s2.38

2640a L P. Jacks in "Near the brink" remarks 'Social Reform might be defined as the process of creating the social problems of tomorrow by Acts of Parliament designed to solve the social problems of today' (p 116) and on p. 118 he says that he never saw so many drunken people as during the years when prohibition was in force.

v7.c96.s2.39

²⁶⁴¹ The Act defines 'dowry' as 'any property or valuable security given or agreed to be given either directly or indirectly (a) by one party to the marriage to the other party to the marriage or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person at or before or after the marriage as consideration for the marriage of the said parties, but does not include dower or Mahr in the case of persons to whom the Muslim Personal Law applies'.

v7.c96.s2.40

Article 40 of the Constitution calls upon the State to organize village Panchayats and to endow them with the powers and authority necessary to enable them to function as units of self-government In ancient and medieval times, village Panchayats played an important part Under the British this system (which trained people in democratic functions on a small scale) was practically done away with Now after about two hundred years the present Government wants to revive Panchayats. In the different States of India village Panchayat Acts have been passed Until a large percentage of villagers become educated, self-reliant and men of character, the village Panchayats cannot function as the foundations of real democracy. It is very likely that either the dominant castes or the leading families or the bullies (*gundas*) in the village will captura the village Panchayats and use them for their own benefit A recent book 'Panchayt-i-raj' by Shri S. A. Dey (published by Asia Publishing House, 1961) paints a very roseate picture of Panchayats functioning in the 550 thousand villages of India. It all depends on disinterested workers of high character, otherwise this project will meet the same fate that overtook Brayne's work in Gurgaon after Brayne left.

v7.c96.s2.41

Some people took it into their heads to decide that agricultural land should belong to him who tilled it. Therefore, in Bombay and some other States legislation was enacted, first holding that he who tilled another's land for six years was to be regarded as a 'protected tenant' (i. e. practically a permanent tenant); later on the owner was prohibited from selling the land to a non-agriculturist and ultimately(by Bombay Act. LXVII of 1948, sec 32) the tenant was made the owner, being liable to pay to the original owner the price fixed by the Revenue authorities spread over twelve yearly instalments. Whatever may be the case in Zamindaris, in the Deccan and some South Indian States the Ryotwari system prevails and persons belonging to the lower middle class purchased lands at high prices (not getting more than three or four percent as rent on the money invested) as land was deemed a stable investment. The present author, having been a practising lawyer for forty-five years, knows personally thousands of village people. In many cases although four or five years have passed away, the Revenue authorities have not yet decided the prices of the lands over which ownership of erstwhile tenants has been declared. Most of the erstwhile tenants (now become owners) have not paid a pie for four years and the real owners have been robbed of the benefit to be derived from the price, if paid. Supposing Government was solicitous of increasing production by making tenants owners there is no reason why Government should not have recovered the price or instalments as a revenue demand. There is no judicial probe in the ordinary courts of law, the appeal lies only to the Govt (that means to the Collector), no owner is entitled to engage a pleader (sec 80 A) and very complicated provisions are made if the former tenant fails to pay each instalment But the present state of things is sheer spoliation and looks like robbing Peter to pay Paul and is a sample of what democracy might mean to people of the lower middle class. There is no evidence that by these measures production of food grains has greatly increased. But Congressmen are complacent because they know that in the elections the vast majority of illiterate agriculturists who are to benefit by such legislation will cast their votes in favour of 'oxen' adopted as symbol by the Congress party. Many States have introduced by legislation ceilings in land holdings, viz no man or family is to hold more then 48 acres of dry land and no more than 24 acres of irrigated land. Even agriculturists have now begun to grumble and to ask why no ceilings are placed on the accumulation of wealth, when they see rich people flaunting their wealth in cars eighteen or twenty feet in length, obstructing narrow roads and causing serious casualties²⁶⁴² Most people complain that the poor are getting poorer and the rich richer under the policies of the present Government Government is not able to hold the price line and agriculturists, workers in industries and the lower middle class are dissatisfied and there is great danger of communistic ideas spreading among the majority of the inhabitants of this ancient land, that once honoured sages Prime Minister Nehru said on the Congress manifesto for the elections of 1962²⁶⁴³ 'If the great majority of people in India for some reason or other become communists in the sense of thinking that way, it may be good or bad, I do not know, but I am quite convinced it would not be India, then it would be something else. I do not want that to happen, even though I want India to take up modern scientific techniques, scientific theories, economic theories, economic organizations. I accept all that to the extent it is good for India. It is for us to choose. I do not rule out any-thing but I rule out being uprooted from India'.

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