Vol. 14, Part II · pages 431–435

1211 DR. AMBEDKAR AND THE HINDU CODE BILL to the interpretation that judicial decisions have given on it. On the other hand my feeling is that this law makes such revolutionary changes that the normal course of the manner in which the Hindu law has been interpreted will also undergo unthought of changes and my submission is that with the existence of the provisos, the judiciary may feel that the interpretations and rulings have to be considered afresh and the words ‘custom and usage’ may now have to be dealt with not only, for instance, on the ground that it has been continuous, that the rule is certain and not unreasonable or been opposed to public policy. You will see the difficulty, Sir, in this as you know that ‘public policy’ is a matter which is an ever-changing process. Mr. Deputy Speaker : Nobody denies that. What is the public policy under particular circumstances is the matter that will be decided. . . . Shri Syamnandan Sahaya : Not only under particular circumstances but in the changing conditions of Government. One Government may have one public policy and another Government tomorrow may have another public policy. Dr. Ambedkar : The word ‘public policy’ also occurs in the Law of Contracts. Mr. Deputy Speaker : Under the Transfer of Property Act, no transfer is valid which is opposed to ‘public policy’. Shri Syamnandan Sahaya : I also support the amendment of Pandit Thakur Das Bhargava with regard to the word ‘uniform’. The words ‘custom and usage’ in my opinion are liable to lead to difficulties and also further litigation. It is not necessary that a certain rule or usage or custom should have been uniformly followed in a particular family and I shall refer to a Privy Council Case, if the Hon. Law Minister will have no objection. I refer to a very important case which was taken to the Privy Council by the successors of the Moghul Emperors. Now the case was as to who was to be the recipient of the pension paid by the Government of India to the successors of the Moghul Emperors and several people were disputing rights. One said, “I am the successor of the Moghul Emperor” and another said, “I am the successor”. The matter went up to the Privy Council and the point arose as to which of them was circumcized, because one of them was not ....... Dr. Ambedkar : I know that case. Shri Syamnandan Sahaya : And the Privy Council held in this particular case that although normally the rule and custom of circumcision obtained in the Muslim families, in the case of the Moghul

1212 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Emperors, when there was a child from the Hindu wife, circumcision was not necessary and they were entitled to the pension or something like that. Therefore the Hon. Law Minister will appreciate that this uniformity with regard to customs even in a particular family has not been a necessary factor and I think that he will do well to adopt this amendment of Pandit Thakur Das Bhargava, suggesting that the word ‘uniformity’ be dropped. Dr. Ambedkar : This has no judicial value. The distinction there was made between custom and practice. Practice has no judicial value. Shri Naziruddin Ahmad : I want to speak with regard to the definition of the word ‘custom’ to begin with and I must say that I am in entire agreement with the official draftsman. Shri Syamnandan Sahaya : For once. Shri Naziruddin Ahmad : I am in general agreement with the Hon. Minister except on occasions when he cannot be made reasonable. With regard to this definition of the word ‘custom’ it is not merely the Indian law but it is also the law throughout the world. I have a copy of Holland’s Jurisprudence which also lays down that a custom in order to be followed must be reasonable, must be continuous, must not be broken and it must be of ancient standing. This is all that is laid down there. The question of uniformity is regarded in Jurisprudence as absolutely essential. If once a custom is broken, it ceases to bear the character of custom at all. This has always been regarded so. So the mere fact that a custom is broken is enough to break the custom. Therefore, I think the definition as it stands should be supported. So far as judicial decision is concerned, the judicial decisions in all cases must have been or are supposed to have been given in view of these considerations but these are considerations which are essential, which are to be found in books of Jurisprudence and therefore, it is far better to rely upon these essential elements rather than rely upon judicial definitions because judicial definitions might be coloured with regard to the difficulties of a particular case and it is far better to rely upon well-known expressions rather than rely upon judicial decisions. Therefore, I think that the definition in the Bill should remain. Shri J. R. Kapoor : I have not been able to appreciate the necessity of the two amendments that have been moved by my hon. Friend, Pandit Thakur Das Bhargava, particularly in view of his own view. His view I understand, is that the definition of ‘custom’ should be

1213 DR. AMBEDKAR AND THE HINDU CODE BILL a restricted one and that various sorts of customs in various parts of the country in different forms, in different methods should not be allowed to prevail. That being his view, with which I am in entire agreement, I think that if the amendments suggested by Pandit Thakur Das Bhargava are accepted, the scope, the denotation of the word ‘custom’ would be considerably extended and expanded which should not be. The one useful thing about this Bill is that it is going to unify and consolidate the Hindu society in some measure and therefore the less the variations in manners and customs and in the rules applicable to Hindu society, the better it is. The essential basis of this Code is uniformity which it will bring about and we should not get away from that mooring and in the consideration of every clause in this Bill, we should never lose sight of this thing. Once we lose sight of this thing. Once we lose sight of that we shall be virtually giving away the basis of this new enactment. What does Pandit Thakur Das Bhargava suggest ? Firstly, he suggests that the word ‘uniformly’ should be done away with. That would mean that a custom even if it has not been uniformly observed should be a custom under this definition, Obviously, that extends the scope of the definition of custom. Secondly, he suggests that the words ‘opposed to public policy’ should be deleted. That, again, means that a custom even though it may be opposed to public policy, according to the prevalent notions of public policy at any particular time, should have the sanctity of a custom as defined here. That, again, would be extending the scope of custom and not restricting it. I submit these suggestions should not be accepted. To me, it appears that the words ‘opposed to public policy’ are very necessary and essential. Because, our society, or any society is an ever-growing society and notions about morality, propriety and advisability of a thing change from time to time. We should not put a stop to that desirable change. A custom which has even been judicially recognised at any particular time, may, 10 or 20 years thereafter appear to the society to be not a proper or desirable custom. At that time, it should be open to society and even to the law courts to declare that this custom, though it has had recognition in judicial pronouncements, according to the changed conditions of society and the changed economic and social theories which have been adopted by society, should not be recognised as a valid custom. I therefore submit that this part, as it stands, should be accepted. I submit the amendment suggested by my hon. Friend Mr. Jhunjhunwala may be accepted because that appears to be a harmless thing. I beg to suggest, Sir, at this stage, if it may not be considered 11-00 A M

1214 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES a late stage, to the Hon. Law Minister that the words ‘or family’ in the, substantive clause may be deleted. Because, to me, it appears ........ Mr. Deputy Speaker : Where is the amendment ? Shri J. R. Kapoor : ........ that a custom which has been in force only in a particular family should not be given the sanctity of a valid and recognised custom. Dr. Deshmukh : It has already been given by the Hindu Law. Shri J. R. Kapoor : We have in the sub-clause the words : “signifies a rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family.” Mr. Deputy Speaker : The House is aware of that expression. The hon. Member has tabled a number of amendments, he never thought at any particular stage that these words should be dropped. I do not want ot allow any time to be spent on this matter. Shri J. R. Kapoor : I am not moving any amendment. I am opposing this particular part of the clause. I do not think I will have any further opportunity to suggest this. As for my not moving an amendment. I may be permitted to confess that having been very much disappointed in finding that none of my amendments are acceptable to the Hon. Law Minister, I thought, rather than moving an amendment formally, I may informally suggest the thing to him so that he may himself move an amendment to that effect. In that case, it would be more easily acceptable to the House. Anyway, I have nothing further to submit on this point. Shri Shiv Charan Lal (Uttar Pradesh) : I think all the amendments should be negatived and the clause as it is should be accepted. Pandit Thakur Das Bhargava, being a lawyer—I am surprised to see—says that the words ‘opposed to public policy’ should be deleted. That is a very necessary thing . As society advances, the opinion of society carries more weight. Anything that is against that opinion should not be acceptable even though it may be an old custom. Pandit Thakur Das Bhargava also wants that the word ‘uniformly’ should be deleted. By the word ‘uniformly’ he seems to understand uniformly for all the people. It is not so. It may be the custom of one family. By ‘uniformly’, it is meant that it is followed continuously or uniformly and not changed. Therefore, the word ‘uniformly’ is also necessary. He says that only those customs for which there are judicial pronouncements should be accepted. This is also wrong. There are

1215 DR. AMBEDKAR AND THE HINDU CODE BILL certain judicial pronouncements which are now not good law because public opinion has changed. The people do not want that custom to continue. There are certain customs which are very well-recognised, but which have never gone to the courts and on which there are no judicial pronouncements. Therefore, I submit, all the amendments of Pandit Thakur Das Bhargava do not stand anywhere. In the amendment of Mr. Jhunjhunwala, he wants to add the word varna. There are no customs connected with any varna. All customs are connected with caste, families, certain areas. I do not know of any custom or any decision of any court where a custom has been recognised as a custom of a varna. That has never come before any court. As to the amendment of Mr. Syamnandan Sahaya, he wants to delete the two provisos. These provisos are the life and soul of the whole definition. Therefore, they cannot be deleted. Therefore, Sir, I am in support of clause (i) as it is. Shri B. K. P. Sinha : I think there is no force in the amendments moved to this clause. This clause, as put in by the Hon. Law Minister is simple and embodies the law as it is. The critics have objected to the words “uniformity” and “public policy”. But, it has been laid down by so many decisions and judgements of the various High Courts that a custom to be valid must be uniformly practised. Mr. Syamnandan Sahaya referred to some Privy Council Case in support. This contention that uniformity was not an essential of valid custom. I could not catch him; therefore, I speak subject to correction. There is a distinction between social and religious customs and customs that prevail in the agriculture and trade field. So far as society and religion are concerned, custom and usage are rather inter-changeable terms and there is very little distinction between the two. But, in the case of trade and agriculture, a distinction has been made between custom and usage. Custom is noted for its antiquity; it must come down from time immemorial. Usage is something which is in the process of growth ; it is something new. The Privy Council case of which I know, makes a distinction only so far as trade and agriculture are concerned. But, that is not germane or very relevant to this question, which is a social and semi-religious question. I have found in so many decisions uniformity is prescribed as a test of the validity of a custom. As regards public policy, I do not know why people have fears on this ground because I find that it has been laid down by the Privy Council, by the Patna, Calcutta and several other High Courts that a custom which