Vol. 14, Part II · pages 436–440

1216 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES is opposed to public policy shall not be valid. In this respect also, I find that the Hon. Law Minister has, in his clause, embodied the law as it is. Moreover, it we go on making an exception in favour of all sorts of customs, what would be the basis and justification for this codification. Codification is mainly done to introduce uniformity and certainty. If we make exceptions in favour of customs prevailing in families, in different territories, etc., there would be no uniform law for the whole country, and the whole object of codification would be defeated. The second object of codification is that there will be something handy to which everybody can refer, with certainty. If we make exceptions in favour of customs, etc., this certainity would have gone. Therefore from any point of view, I see no reason why this clause should not be passed as it is, and why any amendment should be accepted. Mr. Deputy Speaker : I will now call upon the Hon. Law Minister. Babu Ramnarayan Singh (Bihar) : Sir, I have also to say something. Mr. Deputy Speaker : But has not enough been said already ? *Shri Bhatt : (English translation of the Hindi Speech). I have got an amendment. Mr. Deputy Speaker : Which is your amendment ? I have disallowed it. Shri Bhatt : You have allowed it. Mr. Deputy Speaker : But there is no particular charm about it. It is only a matter of recasting the word slightly. Shri Bhatt : That I am to explain as to why I was putting it. I am not moving it simply for recasting of the words. Babu Ramnarayan Singh : I kept standing for long. Mr. Deputy Speaker : What should I do ? Shri V. J. Gupta (Madras) : Sir, I do not want to make a speech, but I want to get a doubt cleared. Babu Ramnarayan Singh : Your eye should have caught me. Mr. Deputy Speaker : It does not mean that just because an hon. Member stands a number of times he catches my eye. I must have some discretion in regulating the debate, and I might call upon certain Members and not certain others. But if there is yet time, we shall see. * P.D., Vol. XV, Part II, 21st September 1951, pp. 3014-54.

1217 DR. AMBEDKAR AND THE HINDU CODE BILL Dr. Ambedkar : There is only one point to be explained and ....... Shri Bhatt : You have given me time. Mr. Deputy Speaker : All right. I will call the Law Minister later. But after all it is a very formal and verbal matter that is dealt with in this amendment. Babu Ramnarayan Singh : No, Sir, it is important too. Shri Bhatt : The amendment moved by me is not verbal. The thing which I want to stress in it may possibly not be acceptable to the Hon. Minister and he may not be inclined to change his attitude. As a matter of fact, as a Lawyer I am not so competent as to convince him. But I want to tell him and draw his attention to certain things lacking in the measure that is being sponsored by him. The first point is about the definition of ‘custom and usage’ which he has put here in an insufficient form. On reconsideration he will himself feel inclined to reduce or add a few words to convey the complete sense. By ‘custom and usage’ we mean traditions, conventions and routine practices, The definition being propounded by him for it limits the sense to four essential attributes, viz., continuity, uniformity, certainity and its not being opposed to public policy. In its place I am thinking of a simplier definition which may precisely convey the same sense. But he has talked of uniformity. What does this uniformity mean? Different castes have their different customs. Even a single caste, spread roughly over a thousand villages, allows various concessions and different usages to the separate circles, and therefore even in a single caste there is a separate sort of uniformity for separate places. There are variations. Therefore the word uniformity would give rise to a lot of litigation and benefit the lawyers It may therefore be dropped as variation is inevitable. If a community made certain variations, it being its usage, it was likely to pay a fine of Rs. 50. But now-a-days Rs. 50 mean nothing and cannot have affect to the desired extent and therefore if one suggests to increase the fine to Rs. 100 you would say that uniformity is not there. Today you change a thing which was good till yesterday, then where is uniformity ? Therefore, as regards uniformity we should agree that variations are bound to be. I shall quote here from Article 13 of the Constitution to explain how the word ‘law’ has been defined there :

1218 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES “law includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.” Here ‘territory of India’ does not mean that there is going to be only one custom throughout India. There is not going to be any one order or notification applicable throughout India. The Government of India decides its policy for each State according to circumstances prevailing there. I also want to tell you what is meant by ‘law in force’, and this will explain what I understand from the words ‘variations’ and ‘uniformity’ : “laws in force’ include laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.” So, I want to suggest that the word ‘uniformity’ used here will make complications and nothing will be lost if it is dropped. After all what does this ‘custom’ mean ? We are educated enough to understand that ‘custom’ is an usage prevalent from the time of our forefathers. You might quote certain thing prevalent upto yesterday, in which you have made a change today, but, for that reason, shall we not take it as custom and will it not affect us ? It may not affect economists, but it is not proper. Therefore, if you want to bring the word ‘custom’ and allow some concession according to it, it may be put in a way that people may get something through it. ‘Custom’ has been defined in the Law Dictionary as follows : “It must have been continued, peaceable, reasonably certain man runs not to the contrary. “It must have been continued, peaceable, reasonably certain, compulsory and not left to the option of every person whether he will use it or not, and consistent with other customs, for one custom cannot be said to be in opposition to another.” These things should be taken into consideration. I have suggested that the word “continuous” was equivalent to ‘having been in vogue’ This is not a wrong word, ‘in vogue’ being a comprehensive word of the English language meaning a thing prevalent and in practice. That is why I have proposed ; ‘having been in vogue for a long time’, ‘it has been in practice for a long time’.

1219 DR. AMBEDKAR AND THE HINDU CODE BILL The second thing which I have put is : ‘which has obtained the force of law’. This is a simple thing and if accepted will become a recognised convention. The third point I have taken is about ‘public policy’ or ‘public morality’. I fail to understand that if conventions find place in the proposed measure, where was the necessity for the word ‘public policy’ ? You might say that only accepted customs will be allowed at a place and not others, then which customs will be against public policy ? What does ‘public policy’ mean ? The word might have dropped from some lawyer or judge and we are now using it, but we should be clear about the meaning of ‘public policy’. I think there is no necessity for any such expression as ‘public policy’ or ‘public morality’. After all where there will be a place in law for conventions, only there the conventions will be followed. So I do not find any necessity for these words. Now I want to say something about caste and sub-caste. The words are not my own ; they have been used in Articles 15 and 16 of our Constitution. We used the word ‘community’ in Clause 2 yesterday. We have not used the word ‘community’ but the word ‘caste’ in the Constitution. In my opinion the words ‘castes and sub-castes’ will be more proper here in place of the word ‘community’. I do not mean that the word ‘community’ may be dropped as we have included it only yesterday, but there is no harm if these two words are also added. With these words I move my amendment. There is very little likelihood of its being carried, but the Hon. Minister will please think over it. Babu Ramnarayan Singh : (English translation of the Hindi speech). Sir, I submit that the decision arrived at by you is very nice and acceptable to all. But sometimes you make decisions in such a haste that it pinches us. Therefore, I entreat you not to decide in haste on the ground that there has been sufficient debate upon the measure. I submit that I also stood up so many times, your eye should have caught me and I should also have been allowed to speak. Shri V. J. Gupta : I have a doubt to be clarified. In the definition it is said : “The expressions ‘custom’ and ‘usage’ signify 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.”

1220 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES As you know in our parts marriage between a young man and his maternal uncle’s daughter is allowed in many communities. It is a common custom though it is not uniformly or continuously observed. Mr. Deputy Speaker : You must read the entire chapter. There is a special exception made. Shri V. J. Gupta : Further, it is said “opposed to public policy”. A practice is called a custom when observed by all the people of a locality. When it is observed by all people uniformly how can it be opposed to public policy ? Dr. Deshmukh : I want to oppose this. Mr. Deputy Speaker : You can vote against it. Babu Ramnarayan Singh : We would like to speak also on it. Mr. Deputy Speaker : I know Hon. Members have a right to speak but I have looked round and I am satisfied that there has been a sufficient debate. If the Hon. Member wants that the formality of a question being put should be observed, let someone move it and I shall put it to the House. Shri Santhanam : Sir, the question be now put. Mr. Deputy Speaker : The question is : “That the question be now put.” The motion was adopted. Babu Ramnarayan Singh : My voice was louder than their voice ! Dr. Ambedkar : In my previous intervention I had explained already both the position of this sub-clause in relation to clause 4 and how the question of custom has been dealt with generally vis-a-vis the Code. With regard to the exact terms which have been used to define the expression ‘custom’ I am sorry to say that it is not possible for me to accept any of the amendments suggested. This definition, as I have said, has been copied verbatim from judicial decisions of the highest tribunal in our country as well as in all other countries, where custom has been judicially defined. I do not think therefore that any ground has been made out for me to depart from the definition proposed in the sub-clause. Mr. Deputy Speaker : The question is : In clause 3, for the words “unless there is anything repugnant in the subject or context“ substitute ”unless the context otherwise requires”.