Vol. 14, Part II · pages 11–15

791 DR. AMBEDKAR AND THE HINDU CODE BILL HINDU CODE— contd. Clause by Clause Discussion *Mr. Speaker: The House will now proceed with the further consideration of the Bill to amend and codify certain branches of the Hindu Law, as reported by the Select Committee. Shri R. K. Chaudhari (Assam): Sir, before the Hon. Law Minister proceeds with his Bill, may I make a most humble suggestion and it is this : either we finish the more important and shorter Bills in the agenda, and then take up the Hindu Code Bill and finish it, or let it be understood that the Hindu Code Bill will be considered from now and until the Hindu Code Bill is finished no other Bill will be taken up. Either of the two courses must be adopted. It seems that some people who are very much in favour of the Hindu Code Bill think that they are merely playing with time by taking up this Bill, considering it for a short period up to one stage, and then putting it off further for a longer spell of time. That is rather unfair to everybody concerned. Therefore, my first respectful request is this. Let us finish these shorter and more important Bills, as for instance, the Preventive Detention Bill. Under that Act, a number of persons who were arrested, were released under the orders of the High Courts. They have again been re-arrested and the whole thing has been held up in expectation of a more comprehensive Bill which was promised by Government. I submit, Sir, that, in the interests of law and order and also in view of the fact that justice should be allowed to run undeterred, we must finish the most important legislation, namely, the Preventive Detention Bill first, then the Employers’ Liability Bill, and then sit down on the Hindu Code and finish it altogether. I hope my suggestion would be acceptable to the Hon. Law Minister. Mr. Speaker : Is this suggestion acceptable to the Hon. Minister ? The Minister of Law (Dr. Ambedkar): No. Sir. Mr. Speaker : So, we will proceed with the further consideration of the Hindu Code Bill. Shri Naziruddin Ahmad (West Bengal): Sir, I have a point of order. The Hindu Code Bill is before the House for a very long time. * Parliamentary Debates (Hereinafter called as P.D.), Vol. VIII, Part II, 5th February 1951, pp. 2356-77.

792 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Meanwhile, some important things have taken place, namely, that the Constitution has been passed and a large number of Acts and sections have been declared to be ultra vires of the Constitution. The present Bill would seem to offend against certain definite provisions of the Constitution. We have enacted so many things in the Constitution that I was amazed to find that many relevant Acts are declared ultra vires There are two provisions in the Constitution : One is that legislation should not be discriminatory. This is enacted in article 15 ; clause (1) of that article says : “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex . . . .” I submit that the Bill is confined to Hindus. Within that expression ‘Hindus’, large number of classes who would not be ordinarily Hindus are attempted to be brought. Even apart from that, there are large classes who will be outside this Bill. I submit that there is discrimination between different castes and persons following different religions. The words ‘only of religion’ do not seem to make any difference. There is discrimination between different sections of our citizens on the ground of religion. The phrase ‘only of religion’ does not mean much, for I find there is no other reason why there is difference between the different religious sects, except on grounds of religion. That is one thing. The second article which I would like to submit for the consideration of the house is . . . . Shri Tyagi (Uttar Pradesh): May I point out, Sir, that last time when we adjourned, it was decided and all agreed,—he was also a party—that no dilatory motions will be made. Mr. Speaker : Order, order. He is not making any motion. He is only raising a point of order, according to him. Shri Naziruddin Ahmad : I shall be very brief, Sir. Shri B. Das (Orissa) : But, he is making a long speech. Shri Naziruddin Ahmad : The other article to which I would like to refer is 25(1). It says : “Subject to public order, morality and health………” which do not mean . . . . Shrimati Durgabai (Madras) : In the name of raising a point of order, is the hon. Member allowed to argue the question on the merits of the case ?

793 DR. AMBEDKAR AND THE HINDU CODE BILL Mr. Speaker : He is arguing and he is entitled to argue ; let us not be impatient with the people who differ. Shri Sonavane (Bombay) : What is his point of order ? Mr. Speaker : The hon. Member should hear what he is saying. Shri Sonavane : Is he allowed to argue it ? Mr. Speaker : I cannot stop a Member, unless I know what he is going to speak, and I cannot know that unless he speaks out. So in order to know what the hon. Member is going to say. I must hear him, and that is the only democratic way in which we can go on. Shrimati Durgabai : But, will he be allowed to refer to certain clauses of the Bill? Mr. Speaker : The hon. Member knows that every person who wishes to argue his case is at liberty to speak ; of course, if I find an hon. Member is abusing the liberty or is repeating himself I shall certainly stop him. Shri Raj Bahadur (Rajasthan) : Sir, I would like to know by way of a ruling from you whether the hon. Member can use such derogatory terms as he did, when referring to certain provisions of the Constitution. He said that “subject to public morality, health, etc.” are meaningless terms. Can he make such observations ? Shri R. K. Chaudhari : Sir, I submit that when a point of order is raised and when the Speaker is listening to that point of order, there should be no interruptions from any hon. Member. Mr. Speaker : Order, order. Shri Naziruddin Ahmed : I submitted that the words in clause (1) of article 25—“Subject to public order, morality and health” do not really mean anything serious. I think they are the usual dreamy kind of safeguards which have no legal significance. The article further says : “... all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.” With regard to the subject of marriage, it is considered by all devout Hindus that marriage is part of their religious profession and practice. So far as I know, a Hindu thinks of marriage as part of his religion, and if a man has no son, he, it is believed, goes to a particular region in hell. Shri Tyagi : Order, order, I have no son.

794 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Mr. Speaker : Will the hon. member resume his seat ? Order, order. I want the hon. Member not to interrupt. Shri Naziruddin Ahmad : In order to ensure against a particular kind of hell, the man should have a son, and in order to have that, he must marry. That is one of the ten samskaras of a Hindu. It is a religious practice, and in order, to have son, a man can have one wife or more than one. Therefore. I submit that this provision curtails the Fundamental Right given in article 25(1). I am not raising a point which is only of academic interest, for this clause has been utilized by the Bombay High Court recently in declaring a certain Act—Prevention of Bigamous Marriages Act—to be ultra vires. Dr. Ambedkar : By the Bombay High Court ? I am sure that is not correct. It was probably some magistrate. Shri Naziruddin Ahmad : The question before us is whether some of the provisions relating to marriage may not be ultra vires of the Constitution. There is also the ground of discrimination, in view of article 15(1) of the Constitution. There are numerous other articles detailing with minor aspects of the question, but I think, these two would suffice for the time being. I am well aware of the principle that the Speaker cannot rule out a point because the legality of it is doubtful. But these are real stumbling blocks and I would request you, Sir, to consider the legality of the Bills. As we all know, a large number of Acts and sections have been declared ultra vires. Even at the time the Constitution was passed, objections were raised that these might be declared ultra vires. We have enacted these Fundamental Rights and anything inconsistent with them; to the extent of that inconsistency, would be null and void. There is no way out of it. If there is any law, any Act, which is in any way inconsistent with these articles, those laws or Acts, to the extent of that inconsistency, shall be void. That is the serious question before us now. Should we pass an enactment which would be declared null and void ? Should we not reconsider the Bill in view of the structure of the Constitution which we have chosen to give to ourselves ? Sir, these are some of the matters which I venture to submit for your consideration. Mr. Speaker: I do not think I need go in detail over the serious points raised by the hon. Member, Mr. Naziruddin Ahmad. The short answer which I can give to whatever he has stated is this. What he urges now may be true in respect of some of the provisions at the most, not all the provisions. And the proper procedure and time to

795 DR. AMBEDKAR AND THE HINDU CODE BILL deal with them would be when the particular provision which he thinks contravenes the Constitution, comes up for consideration, not till then, because to say all the provisions are of that type, and therefore there should be no consideration of the Bill, would be going too far. That is the short way in which I can dispose of all the objections which the hon. Member has urged. This does not mean that I agree with his view. But assuming that his view is correct, still the proper time would be when the relevant clause comes up for consideration. This House is perfectly competent to add to, or substract from the Bill as presented to the House, if the House comes to the conclusion that a particular provision is not proper or offends against the Constitution. But it cannot be decided by the Chair just at the very beginning. I do not think I need go into the merits of the arguments as to how far there is really any discrimination or how far marriage is really a question of religion and so on and so forth. I think we shall now proceed with the bill, clause by clause. Clause 2 —(Application of Code) Pandit M. B. Bhargava (Ajmer) : I have got an amendment standing in my name, proposing the insertion of a new clause 2, after clause 1. Mr. Speaker : Yes, that is right. The hon. Member may move it now. Shri Tyagi : Sir, before that, may I refer to a ruling you gave once, and to the ruling which you gave just now ? Once when I raised a point about a Bill being declared ultra vires, the ruling was that it was for the Courts to decide whether it was ultra vires and that it was not within the purview of the Chair. Sir, do you hold to that view now or will you use discretion in declaring certain clauses ultra vires or otherwise of the Constitution ? Mr. Speaker : I do not think I have yet any grounds for changing my view. If however, grounds are shown. I may reconsider the matter. Pandit Thakur Das Bhargava (Punjab): Sir, ordinarily clause 1 is taken after all the clauses are finished. In regard to the Hindu Code I find from the amendments to clause 1 that some of them involve questions of a very substantive nature. They relate to applicability of the Code in certain States. Many amendments to clause 1 have been put on the order paper and may I request you kindly to consider whether it would be possible to take up clause 1 first ?