Vol. 14, Part I · pages 486–490

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES468 responsibility for the changes, if any on himself. To a supplementary question of Mr. Ramnarain Singh the Minister for Law stated “I introduced no changes”. In fact, the point was whether the Departmental Bill had made any substantial changes, and he made it absolutely clear that he had made no such changes and that the Select Committee alone had made the changes. The entire House seems to be of the opinion that the Select Committee made the changes and that no substantial changes were made by the Departmental Committee. On the last occasion when I was on my legs, I was repeatedly asked to point wherein the Departmental Committee had made substantial changes. It is important that I should refer to this, because it shows that the Members of the Select Committee or the House or even the Minister for Law was not aware of any substantial changes really made, and I submit therefore, that, if I can show that substantial changes were really made by the Departmental Committee and very rarely by the Select Committee, it would open up before the House important considerations. The Select Committee were given a readymade new Bill and the assurance in the report of the Select Committee is that it contained no substantial changes and that the changes were rearranging the clauses, their re-numbering and such formal changes as are purely of a drafting nature. This is the assurance we get in the report of the Select Committe. I would therefore, like to point that those substantial changes were made by the Departmental committee. It is not easy to trace the changes and I cannot blame any honourable Member for failing to notice them. I had to prepare a comparative chart, not of the numbers alone, but of the clauses and subclauses of the three bills side by side. I asked for a copy of the Departmental Bill, but it was not supplied. I submit, Sir, that the Departmental Bill is a very important document and should be supplied to the Members. We have been supplied with a report of the evidence of witnesses before the Select Committee, but the most important document which played such a large part in the framing of the final Bill, has not been supplied. It was with the greatest difficulty that I have procured a copy, not from the Department, but through the courtesy of an honourable Members. Then, Sir, I prepared a comparative statement in parallel columns of the appropriate provisions of the original Bill and the corresponding provisions of the Departmental Bill and the final Bill, and I find it extremely difficult to explain the real significance of the changes except by reference to the comparative chart. 3-00 P M.

DR. AMBEDKAR AND THE HINDU CODE BILL 469 I am trying to get the Bills in parallel columns printed. I am sorry it could not be completed and it could not be placed in the hands of the Members for their convenience. But, I shall refer to the substantial changes made one by one. In doing so, I shall refer to the very important changes made by the Departmental Committe. It is on a consideration of the changes by the Departmental Committee that this point will be decided. I shall refer to the changes made by the Departmental Committee which has been officially denied by the Department and also unknown to the Members in the House. The House will be pleased to consider certain clauses of the original Bill. It is in part I, clause 2, sub-clause (3)(a). The clause corresponding to this is clause 2 of the departmental Bill, sub-clause (2). The original Bill says: “It shall be presumed until the contrary is proved that the whole of this Code applies to every person who is not a Muslim, Christian, Parsi or Jew by religion.” The original Bill was thus a mere rule of presumption. But in the departmental Bill, it is no longer a rule of presumption but a positive rule of law. In the original Bill, it was to be presumed that, if a man was not a Muslim, Christian, Parsi or Jew, he would be “presumed” to be a Hindu. That would not be a rule of law but a rule of presumption. In the Departmental Bill this is changed to stand like this: “This Code also applies to any other person who is not a Muslim, Christian, Parsi or Jew by religion.” The difference between the two is that under the original Bill any man who is not a Muslim, Christian, Parsi or Jew, would merely be presumed to be a Hindu and would be presumed to be governed by this Act. In the Departmental Bill, it is said that.— “the Code applies also to any one who is not a Muslim, Christian, Parsi or Jew.” I submit, Sir, this is introducing a substantial change. While it was a rule of presumption in the original Bill, it is now a positive rule and not one of presumption, that the Hindu law applies to any one not being Muslims, Christians, Parsis and Jews. In the proviso it is said: If it is proved that the Hindu law does not apply to anyone, the Hindu law will not apply.” I think it is most unsatisfactory way of stating things. The final Bill applies it to them and this with the proviso, has changed the law.

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES470 Sir, I submit that this has introduced a serious change. I am not concerned with the policy of the law. But, I am concerned with the changes in the Departmental Bill of which the Select Committee seem to be unaware. Then, Sir, coming to another part of the Bill. In the Departmental Bill............. Mr. Tajamul Hussain : May I have your permission to raise a point of order ? Mr. Speaker: Yes. Mr. Tajamul Husain : My learned friend, Mr. Naziruddin Ahmad has been trying to show before the House that the Departmental Bill was considered by the Select Committee and not the original Bill and he does this after your finding of fact and ruling that the original Bill was considered by the Select Committee. I want to know your ruling now. Mr. Speaker : I have been hearing his argument and I feel he is speaking in support of his amendment that the Bill be circulated for purposes of opinion and the other amendment is for recommitment to the same Select Committee. Therefore, though my ruling stands, I think, he is trying to make out a case that, there has been such a substantial departure from the original Bill as introduced by Sjt. Jogendra Nath Mandal, both in the scheme as well as in the content, that it is necessary now to recirculate or recommit it to the same Select Committee. His point, as I have understood till now, is that the original scheme of the Rau Committee in the first Bill was that the various parts of law should be taken in different compartments. It was possible to separate one from the other, but in the present scheme, the whole having been made as an organic whole, it is difficult now to take certain parts that the people agree to and drop out other parts, with which the people do not agree. How far he is right is another matter. therefore, he says that, it is necessary to recirculate the Bill for opinion. That is how I have understood the point till now. I do not think he is contradicting my ruling. Mr. Naziruddin Ahmad : Not in the least. Sir, it will be too late in the day even to suspect that I have questioned your ruling. The ruling was on a point of law. It was very technical in nature. My point of order was based upon some assumptions which could not clearly be proved.

DR. AMBEDKAR AND THE HINDU CODE BILL 471 Mr. Speaker : The honourable Member may proceed with his argument. Mr. Naziruddin Ahmad : I substantially agree that my point of view is that. But it is something more too. In fact, it is my purpose to show that if the honourable the Minister of Law, who is responsible for the Departmental Bill, and the Members of the Select Committee were not precisely aware of the substantial changes made in the Departmental Bill, can it be said that legally and also in fact they have substantially considered both ? They technically considered both, but did they as a matter of fact adequately consider them ? The question no longer arises as a matter of law on account of your ruling, the justice of which I respectfully accept. But the point I am stressing is that though they considered both, they were faced with the obvious difficulty that there was a Bill presented to them which was said to be a mere redraft of the original Bill and a re-arrangement of things of the clauses, with the express guarantee that no substantial changes had been made and yet in fact substantial changes had been made. My point is that though technically the Select Committee considered both the original Bill and the Departmental Bill, they did not and could not, as a matter of fact, give sufficient or adequate consideration to these undisclosed changes. My purpose is to make out a case for recommitment of the Bill to Select Committee or for circulation. The next change made by the Departmental committee of a substantial nature is in clause 2, sub-clause (4). the change introduced here was made by the Departmental Committee. The change is absolutely new and it was not in the original Bill and is a substantial change. This was introduced by the Departmental committee in the Bill and not by the Select Committee. That is the most important point. The Departmental Bill provides: “2(4). Notwithstanding anything contained in the Special Marriage Act of 1872 (HI of 1872) this Code shall apply to all Hindus whose marriages have been solemnised, under the provisions of that Act prior to the commencement of this Code.” The original Bill did not contain anything like this and the original Bill left those who were married under Special Marriage Act of 1872 to be governed by that Act. That is divorce, maintenance and other provisions applying to those who were married under that Act would be governed by the provisions of the Special Marriage Act, 1872, which are entirely different. How different from the present Code is not very material. The present sub-clause however wants to make out

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES472 that those marriages under the Special Marriage Act of 1872, which took place before the Code comes into force, would be governed not by the Special Marriage Act but by this Code. I submit that this is a substantial departure or change introduced in the Departmental Bill and it was introduced by the Departmental Committee and was merely accepted by the Select Committee as a matter of course. This is a substantial change, whether it is good or bad, whether it is bona fide or not is not the point but a substantial change has been effected by the Departmental Committee and the Select Committee was not specifically informed of the change made. Though there are references to clauses of the original Bill, etc. given in the margin, still this subclause is absolutely new without any indication whatsoever that this was a change. Changes in sub-clauses have not been indicated. In fact in ordinary Bills coming out from a Select Committee all changes made by the Select Committee are either underlined or sidelined. The Select Committee has stated that this practice is unnecessary, because marginal references have been given. I submit that marginal reference is only to the clauses but this subclause (4) is absolutely new. The reference to this sub-clause is Part I, Section 6, page 2 and Schedule I, page 30. The change effected is neither indicated here either by reference or by suitable marking arrangement. At least it is a change of a substantial nature and the attention of the Select Committee was not in any manner specifically drawn to it, nor the nature of the change is indicated. That is change No. 2. I am dealing only with the more substantial and important changes. There are many. I hope at a future time to make available to Members as well as the public a publication which will clearly show the real changes introduced by the Department and the changes really introduced by the Select Committee. I again insist that the Select Committee made very few changes and most of the substantial changes introduced were made by the Drafting Committee. I come to another part of the Bill. In the original Bill, Part I, clause 3, which deals with the operation of the code in relation to previous customs and usage, it is provided: “In regard to any matters dealt with in this Code its provisions shall supersede any custom or usage not hereby expressly saved” The original Bill would supersede only “customs or usages” not thereby expressly saved—all customs not specifically recognised by the original Bill would be superseded. Let us look at the corresponding