Vol. 14, Part II · pages 426–430

1206 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES The newpapers have a right to criticise anybody and everybody. I personally would not mind if any pressman criticises me. Let them criticise—they have their own point of view. Let us not be so thin-skinned, So far as aspersions on the Chair are concerned, by any person either inside or outside the House, I would take strong exception and if you feel that the apology offered is not satisfactory, you should take action against the person concerned. Mr. Deputy Speaker : So far as I am concerned, I am satisfied with what he has written. It is, therefore, unnecessary to pursue the matter. If, however, any hon. Member feels that this letter casts any aspersion on him, we shall look into it. At present I do not think any aspersion is cast on any hon. Member or on the House. Shri Santhanam : Is it suggested that only Government is liable to criticism and not the Members ? Dr. Deshmukh : While Mr. Gupta wrote the letter with the intention of clarifying his position so far as the cartoon was concerned, he has unnecessarily gone out of his way to criticise a section of the Members by alleging that they were obstructing this measure. Mr. Deputy Speaker : This letter consists of two parts. So far as the Chair is concerned and the privilege of the House is concerned, the matter may be left to me. I am satisfied with what he has written. If, however, any hon. Member feels that it casts any aspersion on him, he may meet me in my chamber and we shall discuss the matter. Pandit Thakur Das Bhargava : What objection could be taken to that ? Mr. Deshbandhu himself took four hours on the Press Bill; our friend Mr. Naziruddin Ahmad took seven hours on this Bill. Dr. Deshmukh : It is a case of the pot calling the kettle black. In regard to what you said about yourself and the conduct of business in the House. I want to say a word with your permission and that is this. Whereas I sincerely welcome all your interruptions and the help you give for the conduct of the business of the House, I would like to point out with all due respect, that if the debate is allowed to go on, probably we might spend lesser time. I have the utmost respect for the Chair and it intervenes only with the idea of helping the proceedings. But if it could be minimised and help given only when it is necessary, we will probably be able to advance better. Shri Bharati (Madras) : It is a direction to the Chair which is uncalled for.

1207 DR. AMBEDKAR AND THE HINDU CODE BILL Dr. Deshmukh : The Chair has invited our opinion. Shri Bharati : Not for giving directions to the Chair. Pandit Thakur Das Bhargava : As a Member of this House I wish that this rule of free speech is stuck to. I do not want to put any obstacles in the progress of this Bill. All the same I feel very much offended if I feel an inner urge to speak more and more and yet the Chair pulls me up and does not allow me to speak fully. All Members are expected to put a self-restraint on themselves. Now, I come to the subject. I am very much indebted to Dr. Ambedkar for having very kindly explained this point of law. I quite see that custom has been defined in many judicial pronouncements. But that was not my point. I wanted to suggest that one of the accepted canons for the validity of custom should be that it should be judicially recognised. I suggest this fact that customs have been judicially recognised may not be given a goby when custom is opposed to public policy. If a custom has been judicially recognised, it means that it has passed through the seam of courts and has received recognition at the hands of the judiciary. Dr. Ambedkar : If I may intervene for a moment, that question will again arise, or may arise, or may be raised, when we are dealing with each particular clause. My hon. Friend suggested “any custom which is judicially recognised” ! It is perfectly open to him to say so. But as you very rightly observed, if we are to confine our recognition to a judicially recognised custom, it will create many dafficulties, because there are good customs which satisfy all the ingredients of the definition, yet have not come to the court for judicial recognition. I am only anticipating the difficulties. Shri Santhanam : The word ‘judicially recognised’ may mean, recognition by a district court, or a High Court. We cannot say judicially recognised means recognised by the Supreme Court. Pandit Thakur Das Bhargava : It must be judicially recognised and further it must be certain. It must be not unreasonable, it must be continuous and it must have the force of law. I only want custom which has been judicially recognised should not be given a go-by in the name of public policy. Therefore all these ingredients of a valid custom which are defined by the judicial courts may be accepted. Mr. Deputy Speaker: The proviso requires that “the rule is certain”. Pandit Thakur Das Bhargava : It must be certain, not unreasonable and have the force of law, But the words “and uniformity” and “or opposed to public policy” may not be there. This is the difference I want to see carried out.

1208 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Mr. Deputy Speaker : Where a single custom applies to all classes of human beings, then it is only by nature........ Pandit Thakur Das Bhargava : I beg to be excused. When it is said that a custom should apply to all human beings it must be almost a universal rule or law. It applies to a tribe, community, group or family, as has been defined here. If you say “uniformity” this would mean that the custom that applies to any family or caste or community or tribe will all go away. When the word “continuously” is there and when the word “law” is there I do not understand the necessity for the word “uniformity”. Mr. Deputy Speaker : I understand “uniformity” to mean without variation. Dr. Ambedkar : That is the point. I was almost going to say that. Pandit Thakur Das Bhargava : There are different customs between different families. How can they be uniform ? Mr. Deputy Speaker : The hon. Member has not appreciated the point. We shall assume that there is a custom and it has been continuous, but it has been followed with variations. Suppose somebody is collecting Rs. 10 in a certain period and it was Rs. 15 in the next period and Rs. 20 in a third period, is it suggested that the application should be not only with respect to custom but to laws and grants also ? Suppose it is held by judicial decisions that this was not uniform. Therefore, you cannot presume. Similarly, uniformity means not uniformity with respect to the caste or family etc. but in the family itself it must have been not only continuous but uniform also, that is without variation. Dr. Ambedkar : That is what it means—without variation. Pandit Thakur Das Bhargava : As if the changed custom will not be recognized by law, If there is a custom which has gone out of use...... Mr. Deputy Speaker : Wherever there is a change, that change must have been so continuous, so long and so certain ,.. Pandit Thakur Das Bhargava : The word “continuous” is there and I do not object to it. I object to the word “uniformity”. Mr. Deputy Speaker : Has Mr. Naziruddin Ahmad got any substantial amendment ? I do not think so. Shri Naziruddin Ahmad : I want to speak on ‘custom’. Mr. Deputy Speaker : First I will deal with those who have got amendments. Does Mr. Jhunjhunwala want to speak on his amendment ? I am not inviting him to do so !

1209 DR. AMBEDKAR AND THE HINDU CODE BILL Shri Jhunjhunwala : Yes, Sir, I want to speak on it. In my amendment I want to add the word “ varna” after “tribe”. Mr. Deputy Speaker : He wants caste custom also to be recognised there. He wants to introduce among the various categories “caste” also, after the word “tribe”. He has already tabled an amendment to that effect. Now he wants to change the nomenclature of the word from “caste” to “ varna”. Shri Jhunjhunwala : I want that the word “ varna” should occur after the word “tribe” in clause 3(i). The object of my putting in this amendment is that while customs and usages will be recognised according to the area, tribe, community, group or family, the reasons for recognising such usages and customs have not been explained by the Honourable Doctor. But if the principle is accepted that certain customs and usages will be recognised, if as he has said these are proved to be progressive, in that case the customs which are prevalent in different varnas according to Varnashrama Dharma should be recognised if the conditions laid down by the Hon. Doctor are satisfied. This Varnashrama Dharma is of no recent origin. People say that it is only in the puranic time that these varnas, castes and all these things have come into existence. But that is not a fact. These things were in existence long before, say 3,000 years back. They have got a great deal to do with our life and social structure as well as our economic structure. All the four varnas have got different usages and different customs, and they have meaning behind them. Every usage and custom has got meaning behind it, and duties are allotted to different varnas according to their ability. The other day when a question was put to him whether he has got the sacred thread, the Hon. Mr. Gadgil said, “Yes, I had a sacred thread”, then he took off his coat and said, “See, I have taken it away”. Mr. Deputy Speaker : He did not take off his coat. Shri Jhunjhunwala : I stand corrected. He did not take off his whole coat and the reason which he gave, to which I attach importance, was that he is not capable of following the Dharma of a Brahmin for which the sacred thread is worn, and he said, “Therefore, as an honest man I thought it my duty to throw it away”. Sir, this shows that even the hon. Mr. Gadgil recognizes that there is something very great and sanctifying in the usage and of putting on the sacred thread before a Brahmin is married. In the same way there are similar customs in other varnas also. Therefore, it is very necessary that all the customs

1210 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES which are prevalent in different varnas should be recognised if they satisfy the conditions laid down by the Hon. the Law Minister. I have therefore put in this amendment only with this object that if any such clauses come subsequently regarding marriage, divorce or any other thing, we may be in a position to show that these customs, though they may not be prevalent in any tribe or community or group of family, are prevalent in differently varnas and these are very essential. These are the reasons for which I want to add the word “ varnas” there. Shri B. K. P. Sinha (Bihar) : May I know one thing from the hon. Member ? Is it his contention that while abrogating the smritis and shrutis we should not abrogate custom and usage ? Mr. Deputy Speaker : Shrutis and smritis have not been abrogated; they have been incorporated. Shri Jhunjhunwala : He will find that the Law Minister recognizes them. Shri Syamnandan Sahaya : My amendment, as you will see suggests the omission of the two provisions in the sub-clause or item dealing with the expression ‘custom and usage’. The purpose of suggesting this amendment is exactly what has been mentioned by the Hon. Law Minister. The Hon. Law minister has said that the definition given here is more or less based on judicial findings on the point and judicial decisions have all been that the words ‘customs and usage’ should signify what he has laid down in the definition. The words ‘custom and usage’ must have been and have been the subject of various judicial findings and I therefore thought that if that is the legal or judicial meaning which has been given to the words ‘custom and usage’, it would not be desirable to encumber or burden this definition by making the provisions here, because that is exactly what they will mean. The reason for my making the submission is ....... Mr. Deputy Speaker : I can understand. When there is no definition at all he can rely upon judicial decisions. Dr. Ambedkar : The court will also be open ....... Mr. Deputy Speaker : Custom is continuous and uniform. Shri Syamnandan Sahaya : When a certain word is used in a legislation which has been the subject of judicial interpretation, then that word whenever submitted to judicial interpretation will be liable