Vol. 14, Part II · pages 46–50

826 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES for their good, then it is not right that we should thrust any law or enactment upon a particular community or caste which is professing a particular religion. One of the points which I wanted to make out was this : the House should see whether this Bill is one which Parliament can make, especially as it is restricted to a particular kind of persons professing a particular kind of religion. We can have such a law under Article 25 of the Constitution. Now let us see what are the provisions in article 25 which entitle us to take up such legislation. Article 25(1) reads : “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.” Clause 2 of the Bill relating to the Application of the Code reads : “(1) This Code applies— (a) to all Hindus, that is to say, to all persons professing the Hindu religion in any of its forms or developments, including Virashaivas or Lingayats and members of the Brahmo, the Prarthana, or the Arya Samaj; (b) to any person who is a Buddhist, Jaina or Sikh by religion ; (c) (i) to any child, legitimate or illegitimate, both of whose parents are Hindus within the meaning of this section; (ii) to any child, legitimate or illegitimate one of whose parents is a Hindu within the meaning of this section; provided that such child is brought up as a member of the community, group or family to which such parent belongs or belonged; and (d) to a convert to the Hindu religion. (2) This Code also applies to any person, who is not a Muslim, Christian, Parsi or Jew by religion : Provided that if it is proved that such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Code has not been passed, then, this Code shall not apply to that person in respect of those matters; (3) The expression “Hindu” in any portion of this Code shall be construed as if it included a person who, though not a Hindu by religion is, nevertheless, governed by the provisions of this Code ; (4) Notwithstanding anything contained in the Special Marriage Act, 1872 (III of 1872), this Code shall apply to all Hindus whose

827 DR. AMBEDKAR AND THE HINDU CODE BILL marriages have been solemnized under the provisions of that Act prior to the commencement of this Code.” I have not been able to understand why this Code is being enacted only for the Hindus, if the right has been given—as has been done under article 25—that “ 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.” If this right has been given to the Hindus and persons professing other religions, I do not see any reason why it is sought to be taken away from Hindus by enactment of such laws, such as the one now before us. I would ask the Law Minister whether he is not encroaching on the rights of Hindus of their religious liberty sanctioned by the Constitution. Clause (2) of article 25, however says that: “ Nothing in this article shall effect the operation of any existing law or prevent the State from making any law— (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.” But if this piece of legislation which is now under discussion is being enacted as a measure of social reform and for the welfare of the people, in that case I cannot understand why it should be confined to persons professing particular religions and not extended to all. Shri Raj Bahadur : May I raise a point of order, Sir. Three or four hon. Members of this House have raised the point that the scope or application of this piece of legislation should be extended to all the citizens of India. In the course of the first reading of the Bill the house has already committed itself to the principle that the Bill shall apply only to the Hindus. Having accepted this principle, is it now open to Members to take up this point anew and afresh ? Mr. Speaker : The point of order practically comes to this—I am stating it in my own way. Briefly stated it would be as to whether some of the amendments which seek to extend the application of this Code to communities other than those included in the Bill is not tantamount to an extension of the scope of the Bill—is that the point of order ?

828 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Shri Raj Bahadur : The House had agreed that this Code shall apply to one section of the Indian people alogb ne. Can we now take a new decision that it shall apply to all ? Mr. Speaker : It comes to the same thing. The objection is that the scope of the Bill is being extended now—that is the point of objection. Personally, I myself was feeling doubtful about the admissibility of certain amendments which are now proposed and which apparently seek to extend the scope of the Bill but I have not come to any conclusion. I should first hear Members and then decide at the end as to whether I should put the amendments to vote or not. Dr. P. S. Deshmukh : It is quite open to the House to extend or limit the scope of any legislation. So long as any particular clause is not passed by the House, it is completely at liberty to do that. Supposing the original Bill says that the Code will apply to the whole of India and the House proposes an amendment by which it excludes certain States or vice versa ? I feel certain the House is quite competent to do so. Mr. Speaker : The extension of the Act to the whole of India and then limiting it to a part of India would not be an extension of the principle of the Act. The principle of the Act is something of substantive law, which extends not territorially but in other respects. It is perfectly competent, prima facie, to say that it shall not apply to Sikhs, Jains or Buddhists; but the point is whether it is competent now to say that it shall apply to Christians, Muslims, Parsis and Jews. Shri Syamnandan Sahaya : There are two submissions I wish to make. Before you give a ruling I would request you to give us a little chance. Mr. Speaker : I shall give members every chance. Khwaja Inait Ullah (Bihar) : Are these amendments which are being moved directed to bring in Muslims also within the scope of the Hindu Code and directed against our Fundamental Rights under article 25 of the Constitution ? Mr. Speaker : That does not arise. It is a part of the wider question again as to whether the Code itself goes against the spirit of the Constitution. Khwaja Inait Ullah : It is clear …….. Mr. Speaker : It may be clear to the hon. Member, but it is not so clear to me. Therefore, let us hear what the hon. Members have 4. p.m.

829 DR. AMBEDKAR AND THE HINDU CODE BILL to say and then coolly consider. There is no use going on presuppositions. After all it is a matter which affects vitally large sections of people. The question is whether it offends against the provisions of the Constitution. Shri J. R. Kapoor : Before you are pleased to give a ruling on this question as to whether these amendments are or not in order, may I request you to give us an opportunity to speak on that particular point, because so far none of us have expressed ourselves about the admissibility of these amendments ? Mr. Speaker : I think I shall give them an opportunity. But first of all I want to hear what they really mean and whether they are trying to extend the scope of the Bill. I shall give them a hearing. Shri Jhunjhunwala : I was pointing out to the House that if a particular kind of legislation is one of reform or is in the interests of public good, then this Parliament will not be partial in enacting such a kind of legislation. [Pandit thakur daS BhargaVa in the Chair .] When a particular kind of legislation is being enacted for the welfare of the people why should it be restricted wholly to a certain class of persons and why should it not be extended to all ? If it is good, it is good; if it is bad, it is bad. And if it is bad why should we apply it to the Hindus ? Why should we thrust it upon the Hindus ? Why should they not be left free to practise their own religion and act according to their own ancient ideas ? It is said that this Bill is being enacted because the present system of marriage and other things are not in the interest of society, that they are spoiling society and that this particular kind of legislation is good for the society. If a particular kind of legislation may be regarding marriage, may be regarding inheritance, may be regarding anything, I do not want to go into those details which I shall do when the particular clauses come—but if, as I have said, particular things are good for certain persons. I would like to have the reasons from my hon. friend Dr. Ambedkar who is described as Manu of modern age as to why the particular piece of legislation is bad for Muslims, because he is excluding them, he is purposely excluding them by saying that this Code shall not apply to Muslims. I would like to know why it should not apply to everybody and why it should apply only to Hindus. If it is good it should apply to you, me and everybody. And secondly, as I said, if it is a bad law, why should it be thrust upon a particular

830 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES class of persons ? Lastly, when the question comes up whether these amendments are admissible or not, just as my friend Mr. Jaspat Roy Kapoor has said, I would request that we should be given an opportunity to explain our position. *Shri Naziruddin Ahmad : Sir, as regards the amendment moved by the Hon. Dr. Ambedkar, I raised at that time a point of order. I should first of all try to explain my point of order, because the other amendments depend upon that point of order. You will be pleased to notice that this amendment is drafted in a language which is highly insulting to the House. It says “In clause 2, in sub-clause (1), in item (a), for “Hindus, that is to say, to all persons professing the Hindu religion” substitute ‘persons who are Hindus’ and so on and so forth. In the next item the wording is “substitute” something. In part (2) it is again “omit” something. This is expressed in the imperative form. As Dr. Pattabhi on one occasion said, Dr. Ambedkar speaks in a professorial and dictatorial tone. This amendment is couched in that language. Not merely this, but all the amendments. I have examined one and all of them. They are in the form of correction slips, or orders by a superior officer of Government to his subordinates. So this is really a direction to the House to do this and that, imperatively. The usual form is that “for such and such thing the following shall be substituted” or that “the following shall be omitted”. That is the form. I submit that the drafting has been done so carelessly and so much in the official style that they cannot be accepted as setting a new standard of courtesy to the House. All the amendments are couched in that language. I seriously ask the House to consider whether this method of wording the amendments will be acceptable at all. I, therefore, like in some of the amendments to cure this imperious form. I have suggested the usual form. And it is not merely the usual form in this House but in the previous House and in all other legislative bodies. The question is whether we should permit the setting up of a new standard entirely its own. You will be pleased to examine all the amendments and they are all couched like this. The point of order which I submit is whether it is in good form. If it is not, then the next amendment which I have submitted to cure this should be accepted in preference to this. Nothing will be lost but everything will be gained in decorum and official form. Sir, I ask you to give a ruling on this point. * P.D., Vol. VIII, Part II, 5th February 1951. pp. 2404-23.