Vol. 14, Part II · pages 386–390

1166 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Dr. Ambedkar : It applies to the Hindus only. I will shortly come to the Muslims, do not worry. I will not run away from the point. Therefore, the one consequence will be that the two States which have achieved a certain degree of social advancement will be set back. Shir R. J. Kapoor : Keep it alive. Dr. Ambedkar : How can you ? Shri J. R. Kapoor : By saying “Save and notwithstanding anything contained herein this Act will ...” Dr. Ambedkar : That will be fantastic legislation just to satisfy my hon. Friend. So this consequence has also to be taken into consideration. What is the position today ? Certain States have laws relating to monogamy and divorce. Certain other States have no such legislation. The one thing that has to be remembered is that under our Constitution no State has got extra-territorial jursidiction. The law applies either to the resident when he is resident there or to a person who is domiciled. If a person marries in Bombay he shall have to marry under that State’s Act. If he wants to divorce his wife on grounds which are not permitted by the Bombay law, he can easily go to U.P., where no such law exists, divorce his wife and marry again, thereby altogether destroying the validity of the Bombay legislation. It is something like prohibition. An isolated State cannot have prohibition. If it is to be there it must be all through, so that no man can go to another State and break the law of the State in which he resides normally. Therefore, in this case either there should be no legislation and leave things as they are or if you want legislation, it must be an all India legislation, so that no man or woman would be able to break the law. The third difficulty is that although they have tabled amendments to the effect that option should be given, they have not indicated the nature of that option. Are women to have the right to make an option or not ? If the father makes an option that this law applies to him, does his option apply to his son and progeny ? If the husband makes an option under this law, will it apply to his wife by reason of the fact that she is his wife ? If the husband does not apply it to himself, will the wife be free to do so ? Shri Bharati (Madras) : All confussion. Dr. Ambedkar : It would be utter confussion, if such an amendment was adopted.

1167 DR. AMBEDKAR AND THE HINDU CODE BILL Shri J. R. Kapoor : What does the proviso to clause 2 say ? Dr. Ambedkar : I am afraid I cannot add any such proviso. Our law may be deformed in some way but it should not altogether be unaesthetic ; It must be good to look at. I now come to the other aspect of the argument, namely of allowing other people to have the law apply to them. I should not have dealt with it but for that fact that Dr. Mookerjee referred to the fact that this law was not made applicable to Muslims. He charged the Government with either want of sincerity or want of courage that they can never bring such a legislation so far as the Muslim community is concerned. With regard to this matter, Members have said that we are enacting a piece of legislation which is discriminatory for the simple reason that the Hindus today have the right to marry more than one woman and the Muslims have a right to marry four but that we are taking away the right of the Hindu leaving the right of the Muslim unaffected. That they say, is discrimanatory. With all respect I would invite the attention of Members to article 25 of the Constitution, which says: “Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess practise and propagate religion.” I want to draw the attention of Members to the words “the right freely to profess and practise their religion”. I am not concerned for the moment with propagation of religion. Last time when I spoke on this Bill, I made it quite clear that in our country, fortunately or unfortunately, the profession of a particular religion carries with it the personal law of the person. You cannot get away from that position. Similarly, when you say to a Muslim that under the Constitution he is free to profess and practise his religion, we are practically giving him the right to practise his personal law. In view of the fact that the Constitution allows different communities to practise their religion and incidentally also to have their personal law, there is nothing discriminatory in allowing one community to have their own law or to modify it in the way they like and to treat the law of the other community in a different way or to modify it. Pandit Thakur Das Bhargava (Punjab) : According to Hindu law a person can marry more than one wife, according to Mahommedan law also a person is entitled to have more than one wife, but there

1168 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES is no obligation on any Muslim to have more than one wife nor is there any obligation on any Hindu to have more than one wife. The personal religion of both is the same on this point. Similarly, it is not enjoined upon a Mussalman to practise child marriage, nor is it enjoined upon a Hindu to practise child marriage, for the Smriti and the Hadis of both say the same thing on this point. Therefore, the Child Marriage Act was applied to the Muslims also. It is not going against the Muslim law or the Shariat law if we make this law applicable to them today. So far as article 25 is concerned you will not be following this ….. Dr. Ambedkar : I am answering the other argument that we are making a discrimination. To that I am giving the answer that the Constitution permits us to treat different communities differently and if we treat them differently nobody can charge the Government with practising discrimination. That is the point. That being so, another thing I would like to tell the House is that article 25 is an article of great importance, for this reason. As the House will remember, all throughout the history of Europe there has been a great contest between the Church and the State. The State has said that the Church shall not interfere in religion and that the State is supreme over Church. The Church, on the other hand has said that the State is subordinate to the Church, it is only when the Church permits that the State can enact. That has been the general position. In our Constitution we adopted a middle course ; the course that we adopted was this, that while we will permit people to practise and to profess their religion and, incidentally, to have their personal law because the personal law is so imbedded in their religion, yet the State has retained all along in article 25 the right to interfere in the personal law of any community in this country. There can be no argument against that. That is my point. The only question is the time, the occasion and the circumstances. I want to assert in this House while I am here that I shall hear no argument from any community to say that this Parliament has no right to interefere in their personal law or any other laws. This Parliament is absolutely supreme and we deal with any community so far as their personal law is concerned apart from their religion. Let no community be in a state of mind that they are immune from the sovereign authority of this Parliament. Shri A. C. Shukla : You pass a law but cannot administer it. Dr.. Ambedkar : The point really is a very narrow one and that point is this ; whether right now we should make our Bill applicable

1169 DR. AMBEDKAR AND THE HINDU CODE BILL to the Muslims—the Hindu Code Bill which has been professedly, deliberately, calculatedly intended to apply to what is called the Hindu community. Shri J. R. Kapoor : Non-Hindus also. Dr. Ambedkar : We have been, in making this kind of a legislation, observing a certain necessary procedure as a condition precedent. In all social legislation the Government usually—as a matter of convention and, if I may say so, binding convention—observes the rules of consulting the people affected before any particular piece of legislation is undertaken. Hon. Members well know that with regard to this very Bill there was a Committee which went round from Province to Province, from State to State, took evidence from every section, every community, individuals, organised people, to find out what their opinion was. Nobody can say that so far as this particular Bill is concerned, any Committee or Government at any time consulted the Muslim community—that we are going to enact monogamy and reform the law of divorce so far as the Hindus are concerned, that these are the provisions that we propose to apply to them, what have you to say about it ? No such step has ever been taken and I think it would be not only unwise but a most tyrannical piece of political action to subject the Muslim community to any such provision without their being consulted beforehand. Pandit Maitra : Why did you not do it beforehand ? Dr. Ambedkar : The reason why we did not is because some communities like the Hindu community needed the reform so badly—it was a slum clearance. Pandit Maitra : You had not the courage to do it. Dr. Ambedkar : This is a slum clearance. Shri Syamnandan Sahaya : Did you consult the Sikh community ? Dr. Ambedkar : Oh, yes. I am dealing with it. Do not be impatient. I have consulted them. Do not you make a mistake. Shri Bhatt : Can the Hon. Minister state whether or not, if Parliament so desire, the opinions of Muslims and Christians may still be ascertained ? What is the obstacle to it ? Dr. Ambedkar : The obstacle is that the meal has now been served on the table. Let us take it now. It will take time in inviting others. At the same time we do not have so much food as may be offered to others.

1170 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Mr. Chairman : I do not want Hon. Members to go on interrupting throughout the length of the debate. Shri Bhatt : These are sweets which can stay for days together. Dr. Ambedkar : Regarding the other part of the option, namely that it should be left to the States, in one aspect I have already dealt with it. Suppose some States enact such laws and some States do not, the chaos to which I have already referred would be there and I do not think we could allow any such option to States which would result in chaos in such fundamental matters as marriage and divorce. In this connection I should like to say this that although it is true that the Rau Committee did not visit the Part B States, still when the informal conference took place, I did take care to invite certain representatives of the Part B States. One of them was the Chief Justice of Saurashtra, the Advocate-General of Mysore, I think, was there ... Shri Bhatt : How is it that the Chief Justice of Saurashtra is taken to represent Part ‘B’ States ? He was in the service of the State. Dr, Ambedkar : He knows the conditions prevailing there). We have done that. Now I come to the question of the Sikhs. My friend, Syamnandan Sahaya has gone away somewhere ... Shri Syamnandan Sahaya : I am here, very much so, Dr. Ambedkar. Dr. Ambedkar : Now I come to the question raised by my friend, Mr. Bhopinder Singh Man. His amendment is that this Bill should not be applied to the Sikhs. Well. I have nothing personality to say about this amendment because his amendment is not in any sense solitary as compared with the other amendments which have been tabled by our friend, Mr. Naziruddin Ahmad omitting the Buddhists, Jains, Sikhs, and so on. It is perfectly legitimate for anybody to put. forth his view point, but I think the Hon. Member will allow me to say that the tone of his speech was to me very repugnant and I think hurt me a great deal. Sardar B. S. Man : rose— Mr. Chairman : I do not want Hon. Members to go on interrupting him. Shri Syamnandan Sahaya : If the Hon. Minister indulges in such remarks against those who oppose the Bill, we are entitled to interrupt him. Mr. Chairman : Order, order.