Vol. 14, Part I · pages 566–570

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES548 opinion that has been on record ? I should submit in all himility that the weight of opinion that was sounded by the Rau Committee was predominently against every section of this measure. Consequently, Sir, without any fresh sounding of public opinion, it would be presumptuous on the part of any person, including the Law Minister, to claim that this measure has the support of public opinion in the country. The question arises where is the necessity and what is the utility of the codification of Hindu law ? Who demands the codification of Hindu law ? We know, codification is essential only in two conditions. If on a particular point there is a serious conflict of judicial opinion, it becomes essential for the legislature to intervene and clarify the ambiguity. This is one condition. The other condition is that public opinion wants to have a change in the law. These are the only two conditions which could justify the attempt at codification of Hindu law. In this particular case, I would submit that neither of the conditions exist. So far as the main principles of the Hindu law are concerned., I venture to submit that they are well understood and well settled. In many text-books of Hindu law the principles of it as deducible from Smritis and nibandhas as orally interpreted and construed by the judicial courts in India, have been published. It will be quite obvious that on every intricate point of Hindu law there have been clear interpretations. It has been pointed out by the Law Minister, in his speech while moving for the consideration of this Bill, that Hindu society or the joint families as was originally conceived in Hindu law, have by judicial opinions been shorn of their characteristics. But does this afford any justification for this Code ? The judicial opinion of the Privy Council and of the High Courts have by now laid down the principles which are not open to any doubt at this stage. Whether it may be the powers of the karta or manager of a joint Hindu family when he happens to be a nonfather, whether it may be the powers and functions of a manager of a joint Hindu family as father, his rights and powers stand well defined in Hindu law. The disputed doctrine of the pious obligation which for some time was the subject matter of serious conflict of opinion between the different High Courts and the Privy Council has also been settled. And we know what are the duties of the son and we know the extent of his liability for the debts of his father. Similarly in the spheres of marriage, etc. the Hindu law is quite definite. The question then arises, is there any opinion and overwhelming public opinion in the country which requires the

DR. AMBEDKAR AND THE HINDU CODE BILL 549 Government to codify the Hindu law ? My respectful submission is that there exists none and there is no justification for this attempt at codification of Hindu law. So far as the history of codification goes, this is not the first time that an attempt has been made. I would respectfully invite the attention of the House to the various efforts that have been made during the British rule for the codification of Hindu law and submit that on each such occasion the matter was deferred and for very cogent and sound reason. As early as 1833, a Commission was appointed by Royal Charter. In the year 1853 a Law Commission was appointed. The reports of these Commissions published in the year 1856 turned down the proposal for the codification of Hindu law on the ground that it would be a vain attempt and that it would stunt the growth and development of Hindu law. Similarly, in the year 1861 and again in 1921 the Secretary of State for India in the former case and the Governor-General of India with the sanction of the Secretary of State in the latter case appointed Law Commissions. Their decision on the point of codification was identical with the findings of the Law Commissions. On 23rd March 1921, one distinguished Member of this House tabled a non-official resolution requiring the appointment of a Commission for the purposes of codifying Hindu Law. When that motion was debated in this House the Department of Law was in the hands of a very distinguished scholar on Hindu Law and a jurist of eminence, I mean Dr. Tej Bhadur Sapru. The motion whether codification was essential or not, was necessary or not, would be to the good of Hindu society or not, was hotly debated. I would respectfully invite the attention of the House and of the Honourable the Law Minister to the reply given on behalf of Government by Sir T. B. Sapru who was himself an authority on Hindu Law. He pointed out that the codification of laws of the personal laws of the community was not an easy matter, that it was a stupendous task and one which would entail the best energies of the best legal talents for centuries. He invited the attention of the House to the German Code which was drafted and codified after 50 years of labour, from 1834 to 1896 and to the fact no less than three Commissions drafted the Code. He pointed out that it was not until 1896 that the final form of the German Code was reduced to writing and after a continuous hard struggle for and against codification between the two sections of eminent German jurists represented on the one hand by Savogry and on the other by Thebaut

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES550 and that even then it took no less than 4 years. Thus, it was only in 1900 that the Code drafted after almost 50 years of continuous labour was sanctioned by the Imperial German Government. Similarly, Sir, the Swiss Code in the continent of Europe as well as the other Codes were the result of continuous efforts for a number of years by the best legal talents of the country. Compare those territories and their condition with the conditions of India and the ancient history of India and the continuous streams of law that have been flowing into the development of Hindu law from ancient times upto the present time. I would submit that it will be a vain effort to codify the Hindu law. It will be futile to attempt codification of the personal laws of the Hindus. What is the source of this law I would respectfully ask. It is obviously not human in the sense that no human power ever attempted to promulgate Hindu law. The sanction behind the law was not of a sovereign power but a moral sanction of learning and the result of meditation of the sages. It is difficult to trace its origin; the smritikars —138 as they are said to be—did not purport to create the laws. They based their smritis on the Vedas and we know the Rig Veda is the oldest book in the world. Even Vigneshwar and Jimuta Vahana, the learned authors of the two main treatises which have held sway in India, did not attempt to codify the Hindu law or create new law for society; they only based their commentaries upon the smiritis. And during the long years of British and Muslim rule what has been done is simply an interpretation of the well known principles of Hindu Law. Now why should there be any codification of Hindu Law ? If the German and Swiss nations—which are no insignificant compared to India—took 50 or 60 years to bring about a satisfactory code to control their relations, why should we in India, where the origin and source of Hindu law are shrouded in mystery, try to codify the law ? We are told that it is sought to itroduce uniformity in this land of diversities ; the other reason advanced is that women in Hindu society have been subjected to age-long oppression and tyranny at the hands of men from which they have to be relieved. With regard to uniformity I submit that it has not been achieved in this present measure and cannot be achieved at all. [At this stage Mr. Speaker vacated the Chair, which was then occupied by Mr. Deputy-Speaker (Shri M. Ananthasayanam Ayyangar.) ] Even in regard to the law of succession, in cases where the rule of primogeniture exists by custom or in case of grants or inams they

DR. AMBEDKAR AND THE HINDU CODE BILL 551 have said that the rules of succession as laid down in this measure would not apply. Similarly in clause 7 although marriage between sapindas has been prohibited, it is said that it will be subject to local custom and so allowed where it prevails by custom. So the ghost of uniformity which haunts the draftsman of the measure is still there, and the so called freedom from slavery of women ends in nothing. I submit that those who want to deal with Hindu law and the place of women in Hindu society should look at the question not through Western glasses but through the glasses of our own civilisation. We must know how our own law-givers approached these very difficult and intricate questions. The views prevailing in eastern and western countries on these questions are diagonally opposite. Our life, we believe, has connection with our past life and will have connection with our future life; and therefore the rules of law will stand on a special footing. That is why our sages approached these questions from the point of view of the well-being of Hindu society as a whole. And in attempting to frame our law we have to keep in view the ideals that motivated our law givers in framing the law in a particular manner. Unless we can do that we cannot appreciate its value. Sir, I would not mind if the Law Minister had honestly declared that this measure stands on its own merits, moulded on his ideas of Hindu society as it now exists. But what has pained me is that he asserts that its provisions are in consonance with the accepted principles of Hindu Law. It is well known that Satan can quote the Bible. I submit that every provision of this measure—whether in relation to marriage or divorce, adoption or inheritance—goes against the fundamental principles of Hindu law. Then the result that I envisage is not a very happy one. In fact every House in Hindu society will be converted into a hell in which there will be a quarrel between the brother and sister, between the husband and the wife and between the children and their father. The very fundamentals of Hindu society are sought to be demolished by this law. It is a question of vital concern and there must be a plebiscite on it or a referendum to find out whether public opinion in the country is in favour of this measure or against it. I was submitting that there was no necessity for the codification of Hindu Law. The question then arises whether the uniformity that is sought to be achieved by the enactment of this law will be achieved if it is brought into force ? What is our experience of the statutory

DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES552 law ? The Government of India in the year 1923 appointed a Civil Justice Committee and that Committee after going through the various statutes made a recommendation that the Transfer of Property Act, the Contract Act, and the Law of Evidence should be modified and their revision should be taken in hand by the Legislature at an early stage. Has the Legislature found time for it ? What is the result ? The result is that the law is being administered in accordance with the provisions, which according to the authority itself; has outlived the utility for which they brought it into existence. That will be the condition if the Hindu Code is brought on the Statute Book and is made a rigid code upon which the rights of the people will depend. The Hindu law will lose its vitality, its elasticity, its adaptability to the prevailing conditions and will be reduced to immobile rigidity. May I know whether the object of reducing conflicts and of fighting differences of opinion will be achieved by the codification of Hindu Law ? I dare to suggest it will not and our experience of the various pieces of legislation leads one to support my conclusion. Take for instance, the Hindu Law Remarriage Act which was enacted in 1871. Now, Sir, it is a very simple piece of legislation but has there been an unanimity of opinion in respect of the construction of the various provisions of that Act ? Shrimati G. Durgabai (Madras : General): Are you opposing the Widow Marriage Act also ? Pandit Mukut Bihari Lal Bhargava : I hope my friend will have the patience to hear me. We must learn tolerance and patience for opposite opinions. My point was that mere bringing in of an enactment does not lead to uniformity or to the resolution of a conflict of opinion. Even in the interpretation and the construction of the provisions of this Hindu Widow Remarriage Act of 1872, we find that there is a serious conflict of opinion between different High Courts about the construction of section 2. The question arises whether a woman who remarries according to customary law loses her rights in the property of her husband. This is the point, and we have the opinion of the Allahabad High Court and Oudh Chief Courts to the effect that merely because she remarries according to custom she does not lose her right in her previous husband’s property. The other High Court has taken the other view. Similarly, in this Act there has been a serious conflict of opinion upon the interpretation of the simple word “sister”. Some High Courts say that the word “sister” does not include a “half