Vol. 14, Part II · pages 456–460

1236 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES By this amendment I wish to give them the power, if they so wish, in future to restore them. There may be certain provisions which may not be applicable to the State. That State, if otherwise it has the power under the Constitution to legislate, should have the power and it should not be precluded from further legislating on this matter owing to the effect of this clause. Mr. Deputy Speaker : I do not understand what this amendment means. This amendment at any rate, must have relation to clause 1. Then, I think we have disposed of a similar amendment with reference to clause 2. Dr. Ambedkar : Pandit Malaviya’s amendment was more or less to the same effect. Mr. Deputy Speaker : Apart from this, this is a concurrent subject. If the local conditions and circumstances require a State Legislature to make any law, that law has to recieve the assent of the President. If it receives the assent of the President, to that extent, the provincial law will override or modify this law. That provision is there in the Constitution. I do not know how far we can make a law here which will override or remove the need for the President’s assent in a concurrent subject. A provincial legislation cannot have overriding effect unless the President’s consent is there. Indirectly, we are now trying to say that notwithstanding the need for the President’s consent under the Constitution, a provincial legislature can pass a law even in a concurrent subject. How can you do away, with the right of the President. I think it seems to be unconstitutional. Shri Sarwate : The provisions of the Constitution are not superseded ; they also go along with this. If for a provincial legislation that pre-condition is necessary, that pre-condition is attached. It does not mean that that is taken away. Mr. Deputy Speaker : It does away with the wholesome provision that there ought not to be any inconsistency between the laws passed by the Central legislature and by the State legislature. The state legislature could not be clothed with power, except in exceptional circumstances, to make such laws. The President must give his consent. I do not know how we can pass provision overriding all this. On these grounds it has already been voted upon by the House under clause 2 ; it also militates against the provisions in the Constitution. Is it necessary that we should take up this amendment ? Any other amendment ?

1237 DR. AMBEDKAR AND THE HINDU CODE BILL Dr. C. D. Pande (Uttar Pradesh) : I have an amendment, sir. Mr. Deputy Speaker : Already tabled ? Dr. C. D. Pande : Already tabled, but not listed so far. I have got a copy. Dr. Ambedkar : I have not got a copy. Dr. C. D. Pande : At least I have been supplied with one copy. Mr. Deputy Speaker : When was notice given ? Dr. C. D. Pande : I gave notice in the Notice office this morning and they have given me this copy. This has got to be moved. In any case, the office has given this copy to me ; it may have been given to the Hon. Law Minister as well. Mr. Deputy Speaker : Amendments will be pouring in everyday in the morning. This is only the first of its kind. We had similar amendments also. I do not propose to waive the notice for such amendments unless the Hon. Minister sponsoring the Bill is willing to accept them. Pandit Thakur Das Bhargava : With your permission. Sir, I beg to move amendment No. 420 in my name. Mr. Deputy Speaker : The same amendment in another form. Pandit Thakur Das Bhargava : There is difference. Tthere is a small error here ; it is wrongly typed. It should be “in so far as it is inconsistent”. Mr. Deputy Speaker : That has been provided for. Pandit Thakur Das Bhargava : That has not been provided for. The original clause 4 says : “Save as otherwise expressly provided in this Code, etc........” These words are not there. Dr. Ambedkar : The words are there : “Save as otherwise expressly provided in this Code.” Pandit Thakur Das Bhargava : I say that so far as this Code goes, any custom shall cease to have effect. Mr. Deputy Speaker : The matters must have been dealt with in this Bill. Pandit Thakur Das Bhargava : That is not necessary. We make a provision that custom is saved and by the force of that section, custom is saved. Mr. Deputy Speaker : Let us see what the objection is in principle. What this clause wants to do is whatever may be the custom, in so far as it is provided for by this Bill, the provisons of this Code will

1238 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES have to prevail except in so far as a specific reservation is made. What is his objection ? Pandit Thakur Das Bhargava : This is an amendment to the old clause 4. There is no question of inconsistency etc. there. Mr. Deputy Speaker : Only in cases where it is inconsistent, the Law must override. If it is not, it may continue. Pandit Thakur Das Bhargava : This is an amendment to the original clause 4. It is quite different from the new clause 4. If you adopt the amendment moved by Dr. Ambedkar, then, it may be unnecessary. Dr. Ambedkar : That is my amendment. Pandit Thakur Das Bhargava : I am in agreement with your amendment; but I have given a different amendment. Dr. Ambedkar : What is before the House is my amendment. Pandit Thakur Das Bhargava : The original clause 4 does not consider the question of inconsistency at all. Mr. Deputy Speaker : I am not able to follow the need for this amendment. Shri Santhanam : He wants to restore the original wording that the custom should be invalid to the extent of inconsistency. Dr. Ambedkar : We have never used the word ‘inconsistent’ even in the original clause. The original clause was : “Save as otherwise expressly provided in this Code, any text, rule, or interpretation of Hindu Law, or any custom or usage or any other law in force immediately prior to the commencement of this Code shall cease to have effect as respects any of the matters dealt with in this Code.” It was an absolute thing with regard to law and custom. Pandit Thakur Das Bhargava : In clause 4 as it stood in the original Bill, there is no reference to inconsistency. It is absolute. My amendment seeks to amend the clause in two ways : in the first place these words are not there : ‘save as expressly provided etc.’. Secondly, the question of inconsistency is absent in the original clause. Then all customs and texts of Hindu Law shall prevail but to the extent of inconsistency only they would not have effect. Otherwise whatever is provided in this Act will have effect. With your permission. Sir, I move amendment No. 420, with this correction. I beg to move :

1239 DR. AMBEDKAR AND THE HINDU CODE BILL For clause 4, substitute the following : “4. Any text, rule or interpretation of Hindu Law and any law, custom or usage in force immediatley before the commencement of this Code shall in so far as it is inconsistent cease to have effect with respect to the matters dealt with in the Code.” Mr. Deputy Speaker : Amendment moved : “4. Any text, rule or interpretation of Hindu Law and any law, custom or usage in force immediately before the commencement of this Code shall in so far as it is inconsistent cease to have effect with respect to the matters dealt with in the Code.” Shri Syamnandan Sahaya : I beg to move : In the amendment proposed by Dr. Ambedkar, in part (a) of the proposed clause 4, after the words “this Code”, where it occurs for the second time, insert the words “in so far as it is inconsistent with any of the provisions contained in this Code”. Mr. Deputy Speaker : In part (a) ? Shri Syamnandan Sahaya : Yes. Mr. Deputy Speaker : The object of the Law Minister seems to be that once a particular matter is dealt with here, you need not go to any other Code. But the suggestion of the amendment seems to be that it is only in cases where the provisions are inconsistent with the provisons of the Code that the code provisions will prevail. Shri Syamnandan Sahaya : That is exactly my point. Mr. Deputy Speaker : Amendment moved : In the amendment proposed by Dr. Ambedkar, in part (a) of the proposed clause 4, after the words “this Code”, where it occurs for the second time insert the words “ in so far as it is inconsistent with any of the provisions contained in this Code”. And so the following amendments have been moved : No. 6 of Dr. Ambedkar, No. 450 of Dr. Deshmukh, No. 129 of Sardar Hukam Singh, Nos. 128, 420 and 449 of Pandit Thakur Das Bhargava, Nos. 380 and 419 of Shri Naziruddin Ahmad, Nos. 130 and 418 of Shri Jhunjhunwala and No. 417 of Shri Symnandan Sahaya. These amendments and the clause are now thrown open for discussion. Dr. Deshmukh : This is a very important clause and it has assumed greater importance because the provisions of the present law are going

1240 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES to be limited only to those related to marriage and divorce. It was for that reason that I was going to say, so far as clause 3 was concerned, that there was not any very great need for a definition of the words “custom and usage”. Also I thought that so far as marriage and divorce were concerned, there was the prevailing opinion that custom should not be taboo and should not be prevented from operation to the same extent as might have been the case if we were to include inheritance and succession in the provisions of the Code. So I thought that since we were going to limit this now only to marriage and divorce, insisting on defining custom and usage and also making provisions in clause 4 were not of such great impotrtance. Therefore, I was suggesting that the definition also should be omitted from clause 3. so far as the wording of the definition is concerned. I am in complete agreement with the learned Doctor, because it is aboslutely identical with the rulings on the subject and there is not a single word there which can be objected to. In fact, if anything, it liberalises (Shrimati Durgabai in the Chair) and widens the scope, for it extends to anything uniformly observed for a long time and it gives recognition even to family customs. From that point of view there is nothing objectionable about the definition. But so far as most of the provisions in the present Bill are concerned. I would like the Hon. Minister to view the whole thing as early as possible from this point, namely that the provisions are now going to be limited only to marriage and divorce. Now as he had himself admitted, there are many things here in this Bill, many provisions which were intended specifically to govern other provisions in a particular manner, I would like him to view even some of the provisions to which we are going to confine ourselves from this point of view. If he does that I think some modifications would be necessary even in this clause which gives the overriding effect to this law as against custom and usage as well as interpretation of Hindu law prevalent at the moment. If we pass the clause as suggested by Dr. Ambedkar’s amendment we would certaiinly be going further than what was, I believe, intended. Sub-clause (a) of clause 4 reads : “Any text, rule or interpretation of Hindu Law or any custom or usage in force immediately before the commencement of this Code shall cease to have effect with respect to any of the matters dealt with in this Code.” If it is correctly interpreted, it would mean that all custom and usage so far as marriage and divorce are concerned will be barred, because they are matters dealt with in this Code.