Vol. 14, Part II · pages 461–465

1241 DR. AMBEDKAR AND THE HINDU CODE BILL Shri J. R. Kapoor : Unless specially saved. Dr. Deshmukh : I fully agree with the amendment notice of which has been given by my friend Mr. Sahaya. Since you put these words here, so long as you legislate on the subject of marriage and divorce, as far as I can understand, it would not be possible to recognise any custom or usage. Dr. Ambedkar : We are saving some things. Dr. Dsehmukh : Not unless the saving is put down. Dr. Ambedkar : The clause begins with the words “Save as otherwise expressly provided”. Dr. Deshmukh : So far as my view of the matter is concerned, as regards marriage and divorce, custom should have the play. We have the instance of the Punjab, which is being governed more by custom than by specific legal provisions. Dr. Ambedkar : We want to raise the people of the Punjab to our standard. Dr. Deshmukh : From that point of view I have tabled an amendment to omit the words “any custom or usage” so that any custom or usage which does not contravene or which answers the requirements of clause 3 should prevail and continue. If this is not done, I am afraid, any other provisions in the subsequent clauses will not help us. According to my understanding, if part (a) of clause 4 is adopted as it is, even where it is the wish of the House that custom and usage should be recognised side by side with the provisions of the law, it will not be possible to clothe them with that recognition. Therefore it would be best to omit the words “any custom or usage”. Some of my friends have gone to the extent of saying that it should override the provisions of the law everywhere, as has been suggested by Pandit Bhargava. That would probably be something which is absolutely contrary to clause 4. It would be tantamount not only to the omission of the clause but would be putting it in the opposite direction. Shri J. R. Kapoor : It would be a negation of the Code itself. Dr. Deshmukh : I agree that it would be a nagation of the Code. My submission is that there would be ample room for the continuance of any recognised customs and usages so long as we do not bar them by this enactment. I do not think it would be correct to leave the sub-clause (a) as it is. The original clause was to the effect that any custom or usage or any other law in force immediately before the

1242 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES commencement of the Code shall cease to have effect as respects any of the matters dealt with in this Code. From that we have modified the position slightly, so long as we limit the law only to marriage and divorce. I would like that usage and custom should be allowed to prevail because it has stood the test of time, it is more convenient and less expensive, and it is likely to be less oppressive to the people. I submit there is everything to be said in favour of the amendment I have moved. Sardar Hukam Singh : I have moved my amendment whose purport is identical with the amendment Dr. Deshmukh has moved. I entirely associate myself with what my learned friend has just now said, but in addition to that I have to submit certain other points. In clause 3 we have just defined custom and usage; how we have exalted it and dignified it is apparent form the words used : “the expressions ‘custom’ and ‘usage’ singly any rule which, having been contibuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family : Provided that the rule is cerain and not unreasonable or opposed to public policy”. I beg to submit that when we have laid down a definition and have restricted what actually a usage or custom is for it to be recognisd, immediately after that we deal a fatal blow to it in clasue 4. An hon. Member : There is saving. Sardar Hukam Singh : There is saving—everywhere, in every clause you say, save something which is deemed proper. But I look at it the other way. It should not mean that for every clause wherever an exception is deemed necessary a saving clause should be added saying that such-and-such a custom should be saved. Why not save it aboslutlely when it has the status of law ? It cannot be imagined that it is so vague, so uncertain or so indefinite that you cannot reach at it or find it out. It is not only on the lips or in the hearts of the people in general, but I lay claim to this fact also that it is already laid down in public documents and it cannot be changed arbitrarily. If somebody were to say that it might lead to litigation, then I can lay the counter-charges that even in codified laws there are always disputes, even in registered documents and registered facts there are disputes. I might read form Mayne :

1243 DR. AMBEDKAR AND THE HINDU CODE BILL “The Rivaj-i-Am is a public record, prepared by a public officer in the discharge of his duties under Governmet rules. The statements therein may be accepted even if unsupported by instances. Manuals of customary law in accordance with the Rivaj-i-Am have been issued by authority for each district.” So, those customs are not carried orally that there can be dispute about them ; they are contained in public documents. At each settlement they are revised and scrutinised to see that everything is correct according to the custom that prevails. There is no danger about it. My fear is that we have been governed so long by a very simple law. We are told that it is now too late in the day that Punjabis should rise up and say that they are not governed by Hindu law. Of course, that is our claim. The Punjab Laws Act, clause 5, does define that we have been governed by customary law in preference to the Hindu law. Everybody knows the customary law and understands it well. Dr. Ambedkar : This is much simpler than customary law. Sardar Hukam Singh : We are told in one breath that we have so long been governed by Hindu law—well and good—but in another breath we are told that that was not the proper Hindu law. Hindu law is now rediscovered and a Code is being brought and thrust upon us. The law-giver says that this is the Hindu law. Where is the guarantee that this discovery might not lead to another after a few years and we may not be confronted with the statement that the law then being propounded was the correct one and everybody else who went before it had made a mistake. If it is progressiveness, we claim that our customs are more progressive than the law which is being proposed now. If progress is to be the criterion, then I say : don’t touch us. If you wish to move forward, we are already in advance of you. Come after us. Even in regard to marriage and divorce, we are far in advance of you. Do not pull us back. Laws should refect the stage to which the society has advanced and if the law-giver now thinks that we have advanced to this stage only now, then he is mistaken. If it is only for the sake of bringing about uniformity, then too I am afraid he would not succeed. The variations in the customs and usages, in the cultures and languages, cannot be blended together in so short a time. An appeal was made to the Sikhs yesterday that they should forget the old days and try to become part of the nation. That is a thing that we would cherish. We are not opposed to it. but if Dr. Ambedkar cares to listen to me ...

1244 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Sardar B. S. Man (Punjab) : He is talking to somebody, he does not bother to consult us. He does not bother about our opinion. Sardar Hukam Singh : I find he has turned to me now. We were reminded yesterday and an appeal was addressed to us yesterday that we should try to become part of the nation ; that we should have no tendencies to remain separate. That was very good of him and I thank him wholeheartedly. We are prepared to come forward and meet him more than half way but I would just remind him, as I did yesterday, that he should begin at the Government and at the Cabinet itself, he ought to advise the President that he should not make discriminations when he issues orders, and I particularly referred to the Scheduled Castes Order of 1950, Dr. Ambedkar : I think my hon. Friend may legitimately criticise the Government, but I think he ought not to bring in the President, because whatever the President does he does on the advice of the Ministry and I would be quite prepared to bear all the criticism that he wishes to direct against me. Mr. Chairman : I think this point has been made clear on a former occason when the Deputy Speaker told the House that the President’s views are not to be canvassed or criticised on the floor of the House. Sardar Hukam Singh : Perhaps I have not been heard. I said that Dr. Ambedkar should ‘advise’ the President. I think I am within my rights in saying that. I am not criticising the actions of the President. I am only requesting Dr. Ambedkar to advise the President. He has been advised by Dr. Ambedkar and other Ministers, and I am requesting Dr. Ambedkar to advise him. My appeal to Dr. Ambedkar is that he should beg at home. Sardar B. S. Man : On a point of order, Madam. Some doubt has arisen in my mind. Since the actions of the President are under the advice of the Government, supposing that an action of the President is such that it gives rise to a complaint in the House, particularly at this moment when the Punjab is being governed directly by the President, is it not open to me to question the advisability or validity of certain orders of the President which to my mind are unjust ? In that case it will not be possible for me to question the actions of the President as such. Dr. Ambedkar : I am quite certain about it. Even if my hon. friend has an occasion to criticise any of the orders that have been issued by the President, it would not be open to him to criticise the President. he can censure the government if he likes.

1245 DR. AMBEDKAR AND THE HINDU CODE BILL Sardar B. S. Man : Even when the orders are issued directly by the President ? Of course, the constitutional presumption is there that these orders are issued on the advice of the Cabinet. The situation in the Punjab is that it is governed directly by the President. Of course the responsibility for any orders issued by him would fall on the Cabinet, but when the orders of the President are to be discussed, how can I refer to them except as orders of the President ? Mr. Chairman : The Constitution very definitely says that everything that the President does shall be on the advice of his Council of Ministers and that explains every act of the President. Sardar B. S. Man : Suppose I want to refer to the orders made by the President in relation to Punjab, I can only refer to them as the orders of the President, though the presumption remains that they are made by the President on the advice of his Cabinet. I would like to have a clear ruling from you on that point. Mr. Chairman : I think the point has been made claear already by Dr. Ambedkar and whatever explanation he has given applies to this category of orders as well, to which the Hon. Member has just referred. There are two positions; one is that the President are not to be criticised, the other is that the President, whatever he does, does it on the advice of his Cabinet. If these two are taken into consideration, the conclusion will be that even though his actions are based on the advice of the Cabinet, yet thery are not to be criticised. Sardar B. S. Man : Even if they are unconstitiutional—even if they are bad ? I can always say that this advice which has been tendered to the President is bad advice. Mr. Chairman : We have accepted the provison in the Constitution that the President’s actions are not to be criticised. Sardar B. S. Man : We can even move a no-confidence motion....... Dr. Ambedkar : You can move a no-confidence motion in the Government, not the President. Shri Damodar Menon (Travancore-Cochin) : Has not this House a right to impeach the President ? Dr. Ambedkar : That is a separate matter altogether. Mr. Chairman : I would, in this connection, refer the House to clause (VI) of Rule 159 of our Rules of Procedure which says :