Tuesday, the 23rd November 1948
The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Ten of the Clock, Mr. Vice-President (Dr. H. C. Mookherjee), in the Chair.
Shri Syamanandan Sahaya (Bihar: General): Sir, I will move amendments Nos. 933 and 934 together with your permission. I move:
"(i) That in the article 32 after the word `education'a comma and the words `to medical aid' be added; and
(b) that for the words `of undeserved want' the words`deserving relief' be substituted."
This part deals with directives to the Government in power and the article deals with different aspects of social relief and other amenities which the State should strive to secure for the well being of the people. These include the right to work, education, public assistance in case of unemployment, old age, sickness, disablement and other"cases of undeserved want". The acceptance of my amendment would give the State an added responsibility of medical relief also.
In the second amendment, although the words "undeserved want" may have been used in other constitutions, I submit that the words "deserving relief", although not new to the language of constitutions, expresses the idea better and should be accepted.
With the conditions of health and the figures of mortality in this country as also the duration of life according to actuarial statistics I submit that special attention should be devoted to medical aid.
I do not think the amendment requires much argument to support it. Sir, I move.
Shri H. V. Kamath (C. P. & Berar: General): Mr. Vice-President, I move my amendment No. 936 as amended by my amendment No. 69 in List II. If the two are taken together,my intention will be very clear. In effect my amendment will substitute the word `State' for the word `public' occurring in this article. I find that provision as regards food,clothing, shelter and medical aid are covered by article 38 which seeks to raise the standard of living and provide for public health and such other amenities. I think that my friend Mr. Syamanandan Sahaya's amendment as regards medical aid is also covered by the same article. There is no need to include these provisions as regards food, clothing, medical aid, etc. specifically in this article.
The Honourable Dr. B. R. Ambedkar (Bombay: General):Sir, I oppose the amendments.
Mr. Vice-President (Dr. H. C. Mookherjee): I put the amendments to vote. Amendments Nos. 933 and 934, and 936 as further amended, were negatived,
Mr. Vice-President: I shall now put article 32 to thevote of the House. The question is:
"That article 32 stand part of the Constitution."
The motion was adopted.
Article 32 was added to the Constitution.
Mr. Vice-President: The House will now take up article33 for consideration.
Shri V. I. Muniswamy Pillai (Madras: General) : I amnot moving my amendment No. 940 as the subject-matter relates to the Schedules.
Mr. Vice-President: I shall now put article 33 to the vote of the House. The question is:
"That article 33 stand part of the Constitution."
The motion was adopted.
Article 33 was added to the Constitution.
Mr. Vice-President: The House will now take article 34 into consideration.
(Amendments Nos. 938 to 947 were not moved.)
Shri Mahavir Tyagi (United Provinces: General): Sir, Ibeg to move:
"That article 34 be numbered as 34(1) and the following new clause be inserted after clause (1) so re-numbered:
`(2) The State shall encourage the use of Swadeshi articles and promote cottage industries, especially in the rural areas with a view to making as far as possible those areas self-sufficient'."
In moving this amendment I wish to bring to the notice of the House the fact that the condition of rural areas isvery bad today. In fact rural areas have been depleted, and deliberately deprived and made devoid of all their old initiative and incentive to work. The conditions in the villages are so bad that the artisan classes
have all practically come to the towns. Even a barber, if he is good at razor, does not stay in the village but goes to towns where more money can be had. Attendance on villagers doesnot enable him to earn his daily bread. He goes to the townand opens a saloon. The village carpenter also does thesame; if he knows his job well. He goes to town and easily earns Rs. 5 or 6 a day. Masons do likewise and also the tailors. All the craftsmen flock to towns abandoning their village homes. I want to put it before the House that, under these conditions, when the villagers have been reduced to the position of carrying their dirty clothes to the town to be washed, what will happen to three-fourths of our population living in the villages? We have put it on record that what we want is economic democracy. How will economic democracy come about in the existing state of affairs in the rural areas?
We have given the villager only the right of vote. Andthis too we have given him only to take back after everyfive years - he will give us his vote. He is only thecustodian of the right of vote; and we being his leaders hemust return the vote to us at the time of elections. We arealways their leaders. Sir, I have had experience ofLegislative Assemblies for the last ten or twelve years andI know that we are not treating the villagers fairly. All budget amounts are mostly spent in towns. Only in the towns you have electricity and all sorts of other amenities. Their roads are cemented. There is public health only in the towns. But the villagers are totally neglected. Every man who has the least initiative comes to the towns. All intelligence has come away and now it is only the sluggish people who are left in the villages. Anyone who has passed the Matriculation Examination comes to the towns and employs himself in some service or other. So the villages are fast going to ruination. Now, Sir, it is very good to say that we want economic equality and economic democracy but cannot we on this occasion direct the future governments of the country that this is the line through which we want to achieve our objective of economic democracy? I am not opposed to big concentrations of industries in big towns. Infact, these big industries have been drawing muscular man-power from the villages. Villages have been their recruiting grounds. Villagers come and employ themselves in these big mills only to demoralise themselves in the bad atmosphere in towns. That is the reason why the Britishers purposely kept them weak and poor from all points of view. Initiative they have been deprived of, because otherwise they would not work as mere labourers. Sir, all the villagers cannot come to the towns. Even if you go on increasing the number of industrial towns, you cannot accommodate the vast populations living in the rural areas. They will have no housing in the towns. The purpose of my placing this amendment before you is that instead of the muscular power going to the machine, I want to carry the machines to the sources of muscular power. I want the machines to be taken to the villages so that the villagers who are living in their own sweet homes in their own healthy environments may not be snatched away from their families. At present, Sir, the pressure on land has become too much. The House may be surprised to know that in 1891only 61 per cent of our population were employed on agriculture. In 1901, it was 66 per cent and in 1931 it was72 per cent. Land has been torn into tiny fragments and agriculture has become totally uneconomic. If things go on like that, most of the villagers will come to the towns. We are enjoying our life in towns, while the villagers in whose name we come here are deprived of even their ordinary privileges of citizenship. Therefore, Sir, I submit that this amendment may kindly be accepted. Our Party, the Congress Party, has been propagating Swadeshi and cottage industries since its very inception, but now that the time has come for making our constitution, if we ignore the villagers that will be disappointing to the village people.I
do not want to take any more time of the House because most of the Members of this honourable august House already appreciate the usefulness of the amendment that I am bringing forward. I hope honourable Members will consider the feasibility of giving to the world a new type of social revolution. In Russia, they say, there is already achieve deconomic democracy, but this economic democracy in Russia has concentrated all power in the hands of the State, with the result that the State has become autocratic. If you want to combine political democracy with economic democracy and translate into life Dr. Ambedkar's maxim, "One man, oneunit", then you should make the villages self-reliant and self-sufficient. Otherwise the millions who are unemployed in the rural areas will never enjoy the fruits of freedom;they will remain slaves of the towns men as they are today.Political consciousness and patriotism will come only when they are economically contented. The way to do this is to give them cottage industries so that they can live happily with their families in their own happy surroundings. It is only then that they can exert some influence on the government that be and contribute towards the progress of the country. With these words, Sir, I move this amendmentand I hope the House will accept it.
Mr. Vice-President: I understand that there is an amendment to this amendment by Mr. Ramalingam Chettiar. Do you propose to move it?
Shri T. A. Ramalingam Chettiar (Madras: General): Sir,I gave notice of an amendment, but I would like, Sir, that it be altered a little, as this altered amendment is more likely to be accepted. Instead of the amendment of which I have given notice, I would move with your permission that at the end ofarticle 34 itself we add as follows:
"And in particular the State shall endeavour to promote cottage industries on co-operative lines in rural areas."
If you will permit me, I will move that amendment, Sir,
Mr. Vice-President: Do you want an addition to the article which has been already accepted and passed?
Shri T. A. Ramalingam Chettiar: This is the article which is under consideration now.
Shri Amiyo Kumar Ghosh (Bihar: General): Sir, there is an amendment, standing in the name of Shri Gupta Nath Singh which is exactly the same as the amendment now proposed tobe moved. The amendment number is 954.
Shri T. A. Ramalingam Chettiar: What I want to move is in the place of Mr. Tyagi's amendment.
Shri Amiyo Kumar Ghosh: The new clause 34-A which is sought to be moved is exactly the same as this. It says:
"The state shall endeavour to develop and promote cottage industries and make the villages self-sufficient as far as possible."
An Honourable Member: Are two persons permitted to address the House at the same time?
Mr. Vice-President: Two persons are not speaking. I am afraid you are making a mistake. Mr. Ghosh should have resumed his seat.
Mr. Chettiar, have you moved your amendment?
Shri T. A. Ramalingam Chettiar: That is the amendment,Sir.
Mr. Vice-President: Mr. Ghosh, what is it that you want to say? Please come to the mike.
Shri Amiyo Kumar Ghosh: Mr. Vice-President, what I was submitting was that there is already an amendment (No. 954)to the same effect and that instead of moving an amendment to Shri Mahavir Tyagi's amendment, it is better that we should take the amendment No. 954, which is to the same effect. I do not see why we should move this amendment over the amendment of Shri Mahavir Tyagi.
The amendment which is now going to be moved by my friend is to the effect that the State shall endeavour to develop and promote cottage industries etc. as an amendment to Shri Mahavir Tyagi's amendment, but I submit that when there is already an amendment standing in the name of ShriGupta Nath Singh to the same effect that the State shall endeavour to develop and promote cottage industries and make the villages self-sufficient as far as possible, there is no need of moving this amendment. We can therefore take up amendment No. 954 for discussion and if it is
acceptable to the mover, then we can accept it and put it as clause 34-A.
Mr. Vice-President: The amendment of Mr. Ramalingan Chettiar runs as follows:
"And in particular the State shall endeavour to promote cottage industries on co-operative lines in rural areas."
That is the language of the amendment moved by Mr.Chettiar. Therefore, it is in order. Now the article is openfor general discussion.
Shri T. A. Ramalingam Chettiar: Mr. Vice-President,Sir, there is no doubt about the general feeling in the country that cottage industries ought to be encouraged. The only point I want to make is that so far the cottage industries have not been able to make headway for two reasons. One is the competition with the imported and mill-made goods and the other the want of organisation to help the cottage industries. Raw materials have to be supplied,wages have to be paid and above all, marketing has to be arranged. It is on the rock of marketing that most of our cottage industries have floundered. An organisation for the purpose of undertaking these things is necessary and so far we have been able to find only two methods, either the introduction of master capitalists who will exploit labour or co-operative societies. Of course, it is not the intention of any of us that we should encourage these master capitalists, who practically exploit the village labourers and even town labourers. So the only method that is available and that is open to us is the formation of co-operative societies to undertake the supply of raw materials and the marketing of the produce. It is on that account, Sir, that I have ventured to move this amendment and I hope the House will accept it unanimously.
Shri H. V. Kamath: Mr. Vice-President, Sir, I am happy that articles 34, 32 and 31 have been incorporated in this Part dealing with directive principles of state policy. If the provisions in these articles are going to be seriously implemented and Government will really and in earnest take action in accordance with the provisions of these articles,I have no doubt that they will provide a new charter, the charter of a new life for the exploited, the disinherited and the under-privileged, and they will provide the basis or the framework for the blue-print of economic and social democracy in our country. I was very much heartened to hear Dr. Ambedkar saying the other day in this House that the Constitution seeks to lay down the ideal of economic democracy in this country. Indeed, Sir, that is the ideal we have got to strive for in this country. It may be argued that it is a vague idea. What is economic democracy and what is social democracy? Pandit Nehru, if I remember aright,when he moved the Objectives Resolution in this House hoped that our country along with the rest of the world would move towards socialism, though in his own mind there were doubts as to what democracy meant or political democracy meant or economic democracy meant. But, Sir, article 30 says that we will have social, economic democracy and political justice.Is it not far better to say that we will have political,economic and social democracy, rather than mere justice,which is an abstract conception? (Interruption)
This concept of economic and social democracy has formed the basis, the content of most Congress resolutions that have been passed since 1936; especially, Sir, I would refer to the resolution passed at the Meerut session of theCongress, which gives a definite meaning to this concept of economic and social democracy. Dr. Ambedkar said that to his mind, political democracy means one man, one vote; economic democracy means one man, one value. I, Sir, would say that social democracy, to my mind, means: all men, one class; all men one caste; and I hope, Sir, that we are moving towards the creation of a casteless and classless society which Mahatma Gandhi envisaged for the social order in India.
Here, Sir, political democracy we have now secured.Through experience, not merely here, not merely in Europe,not merely in America, but all over the world, we have realised today
that political democracy is not enough;unless you translate this political freedom, this political democracy into the life of the common man in economic and social terms this political democracy will not work and political democracy will be dead.
That is why, when democracy is opposed or resisted, it gives rise to a totalitarian form of Government. If political democracy is allowed to evolve, to grow, into economic, social democracy, then we would not have strife,we will not have wars, we will not have a totalitarian formof Government. Even today, we see the world is half slave and half free. In Asia and Africa vast tracts of land are under colonial rule. That is why this movement of communismis growing apace. You may call them communist bandits or communist fellow travellers. It is no use dubbing them and calling them names. Unless you change your exploiting social order into a freer order,this movement for violently ending the social order will continue. Therefore, we should take heed betimes and try to establish in our country economic and social democracy.Here, Sir, in article 34 we have got an important provision.It is stated, "The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, work etc.......". I am glad that this has been incorporated. We have got three alternatives or all of them:legislation, organisation or in any other way. I hope, Sir,the Government will take advantage of this and act up to itand see that in accordance with the terms of the article,all workers, industrial or otherwise, are secured work, a living wage and a decent standard of life. We want a society of workers; every one must work. We should inscribe on the portals of our temple of democracy that he who will not work shall not eat: No work, no food. In the Bible this is laid down. Sir. In the Gita, it is said, he who eats without sacrifice, without work, he is a thief; he steals from society. We must therefore lay down this concept that work must be compulsory, work must be obligatory. In article 32,it is said that the State shall secure the right to work;article 34 goes further and says, that the State shall secure work. There are millions of people in India today who want to work, but do not get work. As Bernard Shaw has said,at one end we have got men with appetites but no dinners; at the other, we have men with dinners, but no appetites. This social order is a house divided against itself. So long as this house divided continues, there will be no peace in the world; there will be no happiness in the world. We will have violent movements; we will have desperate men armed with bullets, armed with bren guns, trying to overthrow the social order. You cannot entirely blame them; you cannot find fault with them only; the fault lies also with those of us who want to perpetuate the exploiting social order. The answer to the bullet and bren gun is not the tank and the bomber as we see in Malaya; the answer is a change in the social order. I hope these articles will be implemented by the Government that is going to take office in the new India of the future, and that Government will try to establish economic and social democracy.
I would only make one more observation. To India through the ages has been given the mission of preaching the noble and sublime ideal, the concept of spiritual democracy,of which political, social and economic democracy are mere off-shoots. If true spiritual democracy takes root in our society, there is no doubt that we shall show to humanity a new way of life, and if all other countries in the world have tried to establish economic and social democracy byviolence, by disorder, by strife, we can make a beginning here and go forward and try to achieve this new order.................
Mr. Vice-President: I am afraid that you are taking too much time over the amendments.
Shri H. V. Kamath: I am speaking on the article also.
Mr. Vice-President: You have sufficiently explained the article.
Shri H. V. Kamath: I have finished, Sir. We in our country must
try to bring about this new order by methods of peace and non-violence and thus show a new way to the world.Otherwise, the present order, exploiting as it does, will perish, consumed in its own fires. But I hope out of the ashes will rise like unto the Phoenix of old, a new order with the light of morning in its eyes.
Shri S. Nagappa (Madras: General): Sir, I do not want to take the time of the House; I just want to make an amendment. After the words "to all workers, industrial", the word "agricultural" may be added.Sir, I need not say that the bulk of the working population consists of agricultural workers.
Mr. Vice-President: This is out of order.
The Honourable Dr. B. R. Ambedkar: Mr. Vice-President,Sir, as there is a considerable amount of feeling that theDirective Principles should make some reference to cottageindustries, I am agreeable in principle to introduce inarticle 34 some words to give effect to the wishes of theMembers of this House. I am therefore prepared to accept theamendment moved by my friend Mr. Ramalingam Chettiar,subject to the substitution of one or two words. Onesubstitution that I would like to make is this. After thewords "cottage industries on" I would like to add the words"individual or". I would like to substitute his word `lines'by the word `basis'. So that the amendment would read asfollows:
"And in particular the State shall endeavour to promotecottage industries on individual or co-operative basis inrural areas."
That, I think, would meet the wishes of most of the Memberswho are particularly interested in the subject.
I may also add that I am quite agreeable to accept theamendment moved by Mr. Nagappa that the word 'agricultural'be added after word 'industrial'.
Mr. Vice-President: That was not allowed.
The Honourable Dr. B. R. Ambedkar: I have no objectionif you allow that. I think Mr. Nagappa's suggestion thatagricultural labour is as important as industrial labour andshould not be merely referred to by the word 'otherwise',has some substance in it. However, it is a matter of rulingand it is for you to decide.
Shri T. A. Ramalingam Chettiar: I accept Dr. Ambedkar'samendments.
Shri L. Krishnaswami Bharathi: (Madras: General): Sir,may I suggest, that we may stop with the word cottageindustries and omit the rest. Why do you want the words 'onindividual or co-operative basis? There is no point inadding these words unless you want to lay special emphasison co-operative basis. I would like these words 'onindividual or co-operative basis' to be omitted.
The Honourable Dr. B. R. Ambedkar: May I explain, Sir?I find among the Members who are interested in the subject,there are two divisions: one division believes in cottageindustries solely on a co-operative basis; the otherdivision believes that there should be cottage industrieswithout any such limitation. In order to satisfy both sides,I have used this phraseology deliberately, which, I am sure,will satisfy both views that have been expressed.
Shri M. Ananthasayanam Ayyangar: (Madras: General): Ido not want to speak.
Mr. Vice-President: I think we have discussed thismatter sufficiently. We shall pass on to the actual voting.
Shri Mahavir Tyagi: In the hope that this will all bedone on the basis of self-sufficiency, I accept theamendment to my amendment as finally proposed by Dr.Ambedkar and in that case I shall have to withdraw mine.
The amendment was, by leave of the Assembly, withdrawn.
Shri Amiyo Kumar Ghosh: Sir, I want to know whether'agricultural workers' have been included or not.
Mr. Vice-President: It has not been included but I amquite prepared to go back on my ruling provided the House asa whole, without any dissention, accepts the suggestion ofDr. Ambedkar.
Honourable Members: Yes.
Mr. Vice-President: Then I shall put the amendment ofShri Ramalingam Chettiar as amended by Dr. Ambedkar to thevote.
The amendment, as amended, was adopted.
Mr. Vice-President: Now I put the amendment as furthermodified by Mr. Nagappa.
The amendment, as further amended, was adopted.
Mr. Vice-President: Now the motion before the House is:
"That article 34, as amended in the manner justmentioned, should form part of the Constitution."
The motion was adopted.
Article 34, as amended, was added to the Constitution.
Mr. Vice-President: Now we come to amendment No. 952 toarticle 34-A.
(Amendment No. 952 was not moved.)
Amendment No. 953 - Shri Ranbir Singh Chaudhari.
Chaudhari Ranbir Singh (East Punjab: General): I am notpressing it but I want to speak on the article.
Shri M. Ananthasayanam Ayyangar: This amendment iscovered by article 34 as amended. These are all matters notso much for a Constituent Assembly to introduce in the Constitution but for legislation at the Centre or in theprovinces. I therefore think this need not be moved. Even atpresent usury is restricted in the provinces. A percentagefor interest is fixed.
Mr. Vice-President: As the wording is different ShriRanbir Singh Chaudhari has a right to move his amendment butwhether he will do so or not lies with him. I hope he willnot take up too much time of the House. You ought toremember that our President wants that we should finalizeour Constitution by the 9th December. Then there was sometalk about moving it further back. We owe a certain duty tothe country and I have been receiving a series of wires somuch so that sometimes I am awakened in the middle of thenight, throwing the blame on us.
Chaudhari Ranbir Singh: *[Mr. Vice-President, I wantedto make a few observations on the general article first andthat is why I rose a little while ago to speak. But as I didnot then get an opportunity to speak, with your permission,Sir, I would like to express my views now within a minute ortwo. I have already said that I would not press myamendments. Besides, there is one thing, more. As ShriAyyangar has stated.............]
Mr. Vice-President: Kindly speak on the amendment.
*  Translation of Hindustani Speech.
Mr. Z. H. Lari (United Provinces: Muslim): Sir, on apoint of order. Can any person be allowed to address theHouse unless he formally moves a motion?
Mr. Vice-President: You are right.
(Addressing Mr. Chaudhari) You will first of all movethe motion and then address the House.
Chaudhari Ranbir Singh: My new article reads thus: -
"That after the article 34, the following new article34-A be added: -
'34-A. (a) The State shall endeavour to secure bysuitable legislation or economic organisation or in anyother way the minimum economic price of the agriculturalproduce to the agriculturists.
(b) The State shall give material assistance tonational co-operative organisations of the producers andconsumers.
(c) Agricultural insurance shall be regulated byspecial legislation.
(d) Usury in every form is prohibited'."
Mr. Vice-President: May I take it that you are movingthis amendment formally? I suppose this is done.
Mr. Z. H. Lari: He says, it reads thus. He has notmoved his amendment.
Mr. Vice-President: Suppose, you waive that point. Now,Mr. Chaudhari, you can address the House.
Chaudhari Ranbir Singh: *[Mr. President, I am afraidthat one class remains still to whom the provisions ofarticle 34, as it stands now or even with the amendment ofShri Nagappa as accepted by Dr. Ambedkar, would not affordany protection and whose economic interests would,therefore, remain unsafeguarded. My reference is not to theclass of landlords. The fact on the contrary is that I donot desire to speak for that class at all. My reference isto the class of peasant proprietors of the Punjab whoneither exploit anybody nor like to be exploited by anyone.Speaking for the peasantry. I would like to remark that solong as we do not fix some economic price of the produce,they will continue to suffer from a grave injustice. Theduty of the State today is not merely to maintain law andorder but also to resolve the economic complexities, thesolution of which is the main problem of the peasantry atpresent. Sometime back the prices of gur and othercommodities fell so
much that they came down to one-fourthof what they were four or five months before. Ours is anagriculturist country and in this country such violentdisturbances of the price level cannot but radically disturbthe agricultural economy. I do not want to press this verymuch because I know that this point is covered by theprevious article. But these matters should be kept in mind.My purpose is to emphasise that without fixing the economicprice of agricultural products, there can be no stability inthe economic life of the agriculturists and it is verynecessary to make it stable. The other three parts also lendsome support to this view. Since a good many members of theHouse think that the purpose of my amendment is covered bythe previous article, I do not move it.]
Mr. Vice-President: I shall not, therefore, put it tothe vote. The next amendment is that standing in the name ofMr. Guptanath Singh.
Shri Guptanath Singh (Bihar: General): Sir, My purpose,I see, has been served by the amendment of Dr. Ambedkar to agreat extent, I, therefore, do not wish to move my amendmentNo. 954.
*  Translation of Hindustani speech.
Mr. Vice-President: Now, we come to article 35.
The Honourable Dr. B. R. Ambedkar: Sir, I have torequest you to allow this article to stand over for thepresent.
Mr. Vice-President: This article is allowed to standover for consideration later. Is it agreed to by the House?
Honourable Members: Yes.
Mr. Vice-President: Then, the motion before the Houseis that article 36 do form part of the Constitution.Amendment No. 961 is a negative motion. So we come toamendment No. 962 - Shri L. K. Maitra.
Pandit Lakshmi Kanta Maitra (West Bengal: General): Mr.Vice-President, Sir, I beg to move:
"That in article 36, the words `Every citizen isentitled to free primary education and' be deleted."
Sir, I will strictly obey the injunction given by youregarding curtailment of speeches. I will put in half adozen sentences to explain the purpose of this amendment. Ifthis amendment is accepted by the House, as I hope it willbe, then the article will read as follows: -
"The State shall endeavour to provide, within a periodof ten years from the commencement of this Constitution, forfree and compulsory education for all children until theycomplete the age of fourteen years."
It will thus be seen that this article 36 will bebrought into line with the preceding and the subsequentarticles, in form, at any rate. The House will observe thatarticle 30, 31, 32, 33, 34, 35, 37 and 38 all begin with thewords - "The State shall.....so and so". But article 36 alonebegins with - "Every citizen is entitled to....etc."Therefore if we delete the words I have referred to, thisarticle also will come into line with the other articles.Besides the question of form there is also a question ofsubstance involved in this. Part IV deals with directiveprinciples of State policy, and the provisions in itindicate, the policy that is to be pursued by the futuregovernments of the country. Unfortunately, in article 36,this directive principle of State policy is coupled with asort of a fundamental right, i.e. "that every citizen isentitled......etc." This cannot fit in with the others. Herea directive principle is combined with a fundamental right.Therefore, I submit that the portion which I have indicated,should be deleted.
Now, there is another point, and I particularly want todraw the attention of the Drafting Committee to it. You willsee that in the original draft, in the margin of thisarticle there is a note, "provision for free primaryeducation." But in article 36, we are not making anydistinction between primary and secondary educations. Thatis to say, to every citizen, up to the age of 14 years, theState shall provide, within ten years of the commencement ofthis Constitution, free and compulsory education. In otherwords, the education need not be confined to the primary butit may go up to the secondary stage, so long as the personis upto the age of 14. Therefore, the marginal note shouldbe
amended accordingly. Sir, I move.
Mr. Naziruddin Ahmad: (West Bengal: Muslim): Sir, I begto move:
"That in article 36, for the word `education', thewords `primary education' be substituted."
Sir, this article, as has been clearly pointed out bythe previous speaker, deals with primary education.
It begins with primary education and the marginal notealso makes it clear. But as has been pointed out, towardsthe end what is said is that the State shall provide withina period of ten years from the commencement of thisConstitution for "free and compulsory education." I believefrom the context and from other internal evidence that whatwas intended was compulsory `primary' education. The Statecannot undertake to give compulsory education of a secondarycharacter.
Pandit Lakshmi Kanta Maitra: As far as possibleMr. Naziruddin Ahmad: But then if you enlarge the scopeof the Government's duty, it will be making it innocuous. Ithink it would be better to confine it to primary educationand that should be a directive principle of the State. Ithink that is what is meant. The word, if introduced, would,I submit, fill up an obvious lacuna.
Mr. Vice-President: It would be as well if you move theother amendments in your name as that would save the troubleof your coming up again.
Mr. Naziruddin Ahmad: Sir, I move:
"That in article 36, a semi-colon be inserted after theword `education'."
As this relates only to punctuation. I am asking theDrafting Committee to consider it.
Mr. Vice-President: Article 36 is now open to generaldiscussion.
Shri B. Das (Orissa: General): I have never beenenamoured of these directive principles. They are just pioushopes and pious wishes laid down there occasionally tocreate trouble for the provincial Ministries and very seldomthe Central Government will be affected by criticisms ofthis House. Yet article 36 deals with primary education,which article 23 on Fundamental Rights which we have not yetdiscussed, ignores to provide for. I am not yet satisfiedfrom the speeches what free and compulsory primary educationwill be like. Will it be in one language, or will it be intwo or three languages if a province has two or three kindsof people making up the province?
I will talk of Orissa, where we have some of the Andhrapeople and some Bengalee people, for whom I think freeprimary education up to a certain stage should be providedby the State. The same demand I make from the provinces ofMadras, Bengal and the Central Provinces, where education inthe mother tongue of the Oriyas has been denied. My friend,Premier Shukla, is looking at me. It is not his Ministry'sfault. It is a tradition that has grown. No one bothersabout giving free primary education in the mother tongue ofany race that has a language and a script of its own. InBengal in the Midnapore district, in the 1881 census, fivelakhs of Oriyas existed. In the last census only a fewthousands and perhaps in the coming census the will becompletely wiped out. But yet primary education givesindividuals the chance to be in communion with their God andin communion with the textbooks of their religion. The Oriyachildren of Midnapore have at present to study Bengali. Theyhave changed their names into Bengali names. So is the casein Madras in the Vizagapatam district where very argenumbers of Oriyas live and it was their misfortune that thearea could not become part of Orissa Province in 1936. But Ido want in bi-lingual areas where there is a largepopulation of another race, the Provincial Ministry and theGovernment concerned should not deny those children theirright of knowledge in their own mother tongue so that whenthey become literate they may have been able to undertakesome study of their religious texts. It is not the policy ofthis House or the contemplation of this Constitution thatevery province as it is constituted now should make all thepeople of one language. That is a problem on which I havehad discussions in private. I understand that the DraftingCommittee will take this up in article 23(1). So that is thereason why I did not move my
amendment No. 970 which askedfor free and compulsory primary education for all childrenin their respective mother tongue. It is a very primary andessential problem that we should not denationalise thosepeople who have a mother tongue of their own and compel themto learn the mother tongue of someone else, however suitableit may be.
The Honourable Dr. B. R. Ambedkar: Sir, I accept theamendment proposed by my friend, Mr. Maitra, which suggeststhe deletion of the words "every citizen is entitled to freeprimary education and". But I am not prepared to accept theamendment of my friend, Mr. Naziruddin Ahmad. He seems tothink that the objective of the rest of the clause inarticle 36 is restricted to free primary education. But thatis not so. The clause as it stands after the amendment isthat every child shall be kept in an educational institutionunder training until the child is of 14 years. If myhonourable Friend, Mr. Naziruddin Ahmad had referred toarticle 18, which forms part of the fundamental rights, hewould have noticed that a provision is made in article 18 toforbid any child being employed below the age of 14.Obviously, if the child is not to be employed below the ageof 14, the child must be kept occupied in some educationalinstitution. That is the object of article 36, and that iswhy I say the word "primary" is quite inappropriate in thatparticular clause, and I therefore oppose his amendment.
Mr. Vice-President: The question is:
"That in article 36, the words `Every citizen isentitled to free primary education and' be deleted."
The motion was adopted.
Mr. Vice-President: The question is:
"That in article 36, for the word `education' the words`primary education' be substituted."
The motion was negatived.
Mr. Vice-President: The question is:
"That article 36, as amended, stand part of the Constitution."
The motion was adopted.
Article 36, as amended, was added to the Constitution.
Mr. Mohamad Ismail Sahib (Madras: Muslim): Sir, I movethat the following proviso be added to article 35:
"Provided that any group, section or community ofpeople shall not be obliged to give up its own personal lawin case it has such a law."
The right of a group or a community of people to followand adhere to its own personal law is among the fundamentalrights and this provision should really be made amongst thestatutory and justiciable fundamental rights. It is for thisreason that I along with other friends have given amendmentsto certain other articles going previous to this which Iwill move at the proper time.
Now the right to follow personal law is part of the wayof life of those people who are following such laws; it ispart of their religion and part of their culture. Ifanything is done affecting the personal laws, it will betantamount to interference with the way of life of thosepeople who have been observing these laws for generationsand ages. This secular State which we are trying to createshould not do anything to interfere with theway of life and religion of the people. The matter ofretaining personal law is nothing new; we have precedents inEuropean countries. Yugoslavia, for instance, that is, thekingdom of the Serbs, Croats and Slovenes, is obliged undertreaty obligations to guarantee the rights of minorities.The clause regarding rights of Mussulmans reads as follows:
"The Serb, Croat and Slovene State agrees to grant tothe Mussulmans in the matter of family law and personalstatus provisions suitable for regulating these matters inaccordance with the Mussulman usage."
We find similar clauses in several other Europeanconstitutions also. But these refer to minorities while myamendment refers not to the minorities alone but to allpeople including the majority community, because it says,"Any group, section or community of people shall not beobliged" etc. Therefore it seeks to secure the rights of allpeople in regard to their existing personal law.
Again this amendment does not seek to introduce anyinnovation or bring in a new set of laws for the people, butonly wants the
maintenance of the personal< law alreadyexisting among certain sections of people. Now why do peoplewant a uniform civil code, as in article 35? Their ideaevidently is to secure harmony through uniformity. But Imaintain that for that purpose it is not necessary toregiment the civil law of the people including the personallaw. Such regimentation will bring discontent and harmonywill be affected. But if people are allowed to follow theirown personal law there will be no discontent ordissatisfaction. Every section of the people, being free tofollow its own personal law will not really come in conflictwith others.
Shri Suresh Chandra Majumdar: (West Bengal: General):Sir, on a point of order, what is being said now is a directnegation of article 35 and cannot be taken as an amendment.The Honourable Member can only speak in opposition.
Mr. Mohamed Ismail Sahib: Article 35 reads thus:
"The State shall endeavour to secure for citizens auniform civil code throughout the territory of India."
That will include the personal law as well.
Mr. Vice-President: I hold that the Honourable Memberis in order.
Mr. Mohamed Ismail Sahib: Therefore, Sir, what I submit is that for creating and augmenting harmony in the land it is not necessary to compel people to give up their personallaw. I request the Honourable Mover to accept thisamendment.
Mr. Naziruddin Ahmad: Sir, I beg to move:
"That to article 35, the following proviso be added,namely: -
`Provided that the personal law of any community whichhas been guaranteed by the statue shall not be changedexcept with the previous approval of the communityascertained in such manner as the Union Legislature maydetermine by law'."
In moving this, I do not wish to confine my remarks tothe inconvenience felt by the Muslim community alone. Iwould put it on a much broader ground. In fact, eachcommunity, each religious community has certain religiouslaws, certain civil laws inseparably connected withreligious beliefs and practices. I believe that in framing auniform draft code these religious laws or semi-religiouslaws should be kept out of its way. There are severalreasons which underlie this amendment. One of them is thatperhaps it clashes with article 19 of the Draft Constitution. In article 19 it is provided that `subject topublic order, morality and health and to the otherprovisions of this Part, all persons are equally entitled tofreedom of conscience and the rightfreely to profess, practise and propagate religion.' Infact, this is so fundamental that the Drafting Committee hasvery rightly introduced this in this place. Then in clause(2) of the same article it has been further provided by wayof limitation of the right that `Nothing in this articleshall affect the operation of any existing law or precludethe State from making any law regulating or restricting anyeconomic, financial, political or other secular activitywhich may be associated with religious practice'. I canquite see that there may be many pernicious practices whichmay accompany religious practices and they may becontrolled. But there are certain religious practices,certain religious laws which do not come within theexception in clause (2), viz. financial, political or othersecular activity which may be associated with religiouspractices. Having guaranteed, and very rightly guaranteedthe freedom of religious practice and the freedom topropagate religion, I think the present article tries toundo what has been given in article 19. I submit, Sir, thatwe must try to prevent this anomaly. In article 19 weenacted a positive provision which is justiciable and whichany subject of a State irrespective of his caste andcommunity can take to a Court of law and seek enforcement.On the other hand, by the article under reference we aregiving the State some amount of latitude which may enable itto ignore the right conceded. And this right is notjusticiable. It recommends to the State certain things andtherefore it gives a right to the State. But then thesubject has not been given any right under
this provision. Isubmit that the present article is likely to encourage theState to break the guarantees given in article 19.
I submit, Sir, there are certain aspects of the CivilProcedure Code which have already interfered with ourpersonal laws and very rightly so. But during the 175 yearsof Brit ish rule, they did not interfere with certainfundamental personal laws. They have enacted theRegistration Act, the Limitation Act, the Civil ProcedureCode, the Criminal Procedure Code, the Penal Code, theEvidence Act, the Transfer of Property Act, the Sarda Actand various other Acts. They have been imposed gradually asoccasion arose and they were intended to make the lawsuniform although they clash with the personal laws of aparticular community. But take the case of marriage practiceand the laws of inheritance. They have never interfered withthem. It will be difficult at this stage of our society toask the people to give up their ideas of marriage, which areassociated with religious institutions in many communities.The laws of inheritance are also supposed to be the resultof religious injunctions. I submit that the interferencewith these matters should be gradual and must progress withthe advance of time. I have no doubt that a stage would comewhen the civil law would be uniform. But then that time hasnot yet come. We believe that the power that has been givento the State to make the Civil Code uniform is in advance ofthe time. As it is, any State would be justified underarticle 35 to interfere with the settled laws of thedifferent communities at once. For instance, there aremarriage practices in various communities. If we want tointroduce a law that every marriage shall be registered andif not it will not be valid, we can do so under article 35.But would you invalidate a marriage which is valid under theexisting law and under the present religious beliefs andpractices on the ground that it has not been registeredunder any new law and thus bastardise the children born?
This is only one instance of how interference can gotoo far. As I have already submitted, the goal should betowards a uniform civil code but it should be gradual andwith the consent of the people concerned. I have thereforein my amendment suggested that religious laws relating toparticular communities should not be affected except withtheir consent to be ascertained in such manner as Parliamentmay decide by law. Parliament may well decide to ascertainthe consent of the community through their representatives,andthis could be secured by the representatives by theirelection speeches and pledges. In fact, this may be made anarticle of faith in an election, and a vote on that could beregarded as consent. These are matters of detail. I haveattempted by my amendment to leave it to the CentralLegislature to decide how to ascertain this consent. Isubmit, Sir, that this is not a matter of mere idealism. It is a question of stern reality which we must not refuse toface and I believe it will lead to a considerable amount ofmisunderstanding and resentment amongst the various sectionsof the country. What the Brit ish in 175 years failed to door was afraid to do, what the Muslims in the course of 500years refrained from doing, we should not give power to theState to do all at once. I submit, Sir, that we shouldproceed not in haste but with caution, with experience, withstatesmanship and with sympathy.
(B. Pocker Sahib Bahadur rose to speak.)
Mr. Vice-President: When we discuss the clause as awhole, you will get your chance. Amendment No. 960. TheMover has called it a new sub-clause, that is 35-A. We cantake it up later on. The article as a whole is now underconsideration.
Mahboob Ali Baig Sahib Bahadur (Madras: Muslim): I havegiven notice of an amendment to article 35. It is No. 833.
Mr. Vice-President: That escaped my attention. I amglad you pointed that out.
Mahbood Ali Baig Sahib Bahadur: Sir, I move that thefollowing proviso be added to article 35:
"Provided that nothing in this article shall affect thepersonal law of the citizen."
of article 35 is that the words "Civil Code" donot cover the strictly personal law of a citizen. The CivilCode covers laws of this kind: laws of property, transfer ofproperty, law of contract, law of evidence etc. The law asobserved by a particular religious community is not coveredby article 35. That is my view. Anyhow, in order to clarifythe position that article 35 does not affect the personallaw of the citizen, I have given notice of this amendment.Now, Sir, if for any reason the framers of this article havegot in their minds that the personal law of the citizen isalso covered by the expression "Civil Code", I wish tosubmit that they are overlooking the very important fact ofthe personal law being so much dear and near to certainreligious communities. As far as the Mussalmans areconcerned, their laws of succession, inheritance, marriageand divorce are completely dependent upon their religion.
Shri M. Ananthasayanam Ayyangar: It is a matter ofcontract.
Mahboob Ali Baig Sahib Bahadur: I know that Mr.Ananthasayanam Ayyangar has always very queer ideas aboutthe laws of other communities. It is interpreted as acontract, while the marriage amongst the Hindus is aSamskara and that among Europeans it is a matter of status.I know that very well, but this contract is enjoined on theMussalmans by the Quran and if it is not followed, amarriage is not a legal marriage at all. For 1350 years thislaw has been practised by Muslims and recognised by allauthorities in all states. If today Mr. AnanthasayanamAyyangar is going to say that some other method of provingthe marriage is going to be introduced, we refuse to abideby it because it is not according to our religion. It is notaccording to the code that is laid down for us for all timesin this matter. Therefore, Sir, it is not a matter to betreated so lightly. I know that in the case of some othercommunities also, their personal law depends entirely upontheir religious tenets. If some communities have got theirown way of dealing with their religious tenets andpractices, that cannot be imposed on a community whichinsists that their religious tenets should be observed.
Shri L. Krishnaswami Bharathi: It is sought to be doneonly by consent of all concerned.
Mr. Vice-President: Mr. Bharathi, the majoritycommunity has always been so very indulgent that I would askyou as a personal favour to give the fullest possiblefreedom to our Muslim brethren to express their views. Iwould ask you to exercise patience for a little while. Iknow they feel very strongly on this matter.
Shri L. Krishnaswami Bharathi: My point was, Sir, thatit was not an attempt at imposition. If anything is done, itwill be done only with the consent of all concerned, and theHonourable Member need not labour that point.
Mr. Vice-President: It is understood and I thank youfor it.
Mahboob Ali Baig Sahib Bahadur: Now, Sir, people seemto have very strange ideas about secular State. People seemto think that under a secular State, there must be a commonlaw observed by its citizens in all matters, includingmatters of their daily life, their language, their culture,their personal laws. That is not the correct way to look atthis secular State. In a secular State, citizens belongingto different communities must have the freedom to practicetheir own religion, observe their own life and theirpersonal laws should be applied to them. Therefore, I hopethe framers of this article have not in their minds thepersonal law of the people to cover the words "Civil code".With this observation, I move that that it may be made clearby this proviso, lest an interpretation may be given to itthat these words "Civil code" include personal law of anycommunity.
B. Pocker Sahib Bahadur (Madras: Muslim): Mr. Vice-President, Sir, I support the motion which has already beenmoved by Mr. Mohamed Ismail Sahib to the effect that thefollowing proviso be added to article 35: -
"Provide that any group, section or community of peopleshall not be obliged to give up its own personal law in caseit has such a law."
It is a very
moderate and reasonable amendment to thisarticle 35. Now I would request the House to consider thisamendment not from the point of view of the Mussalmancommunity alone, but from the point of view of the variouscommunities that exist in this country, following variouscodes of law, with reference to inheritance, marriage,succession, divorce, endowments and so many other matters.The House will not that one of the reasons why theBrit isher, having conquered this country, has been able tocarry on the administration of this country for the last 150years and over was that he gave a guarantee of followingtheir own personal laws to each of the various communitiesin the country. That is one of the secrets of success andthe basis of the administration of justice on which even theforeign rule was based. I ask, Sir, whether by the freedomwe have obtained for this country, are we going to give upthat freedom of conscience and that freedom of religiouspractices and that freedom of following one's own personallaw and try or aspire to impose upon the whole country onecode of civil law, whatever it may mean, - which I say, as it is, may include even all branches of civil law, namely, thelaw of marriage, law of inheritance, law of divorce and somany other kindred matters?
In the first place, I would like to know the realintention with which this clause has been introduced. If thewords "Civil Code" are intended only to apply to mattersprocedure like the Civil Procedure Code and such other lawswhich are uniform so far as India is concerned at presentwell, nobody has any objection to that, but the variouscivil Courts Acts in the various provinces in this countryhave secured for each community the right to follow theirpersonal laws as regards marriage, inheritance, divorce,etc. But if it is intended that the aspiration of the Stateshould be to override all these provisions and to haveuniformity of law to be imposed upon the whole people onthese matters which are dealt with by the Civil Courts Actsin the various provinces, well, I would only say, Sir, thatit is a tyrannous provision which ought not to be tolerated;and let it not be taken that I am only voicing forth thefeelings of the Mussalmans. In saying this, I am voicingforth the feelings of ever somany sections in this country who feel that it would bereally tyrannous to interfere with the religious practices,and with the religious laws, by which they are governed now.
Now, Sir, just like many of you, I have received everso many pamphlets which voice forth the feelings of thepeople in these matters. I am referring to many pamphletswhich I have received from organisations other thanMussalmans, from organisations of the Hindus, whocharacterize such interference as most tyrannous. They evenquestion, Sir, the right and the authority of this body tointerfere with their rights from the constitutional point ofview. They ask: Who are the members of this ConstituentAssembly who are contemplating to interfere with thereligious rights and practices? Were they returned there onthe issue as to whether they have got this right or not?Have they been returned by the various legislatures, theelections to which were fought out on these issues?
If such a body as this interferes with the religiousrights and practices, it will be tyrannous. Theseorganisations have used a much stronger language than I amusing, Sir. Therefore, I would request the Assembly not toconsider what I have said entirely as coming from the pointof view of the Muslim community. I know there are greatdifferences in the law of inheritance and various othermatters between the various sections of the Hindu community.Is this Assembly going to set aside all these differencesand make them uniform? By uniform, I ask, what do you meanand which particular law, of which community are you goingto take as the standard? What have you got in your mind inenacting a clause like this? There are the mitakshara andDayabaga systems; there are so many other systems followedby various other communities. What is it that you are makingthe basis?
Is it open to us to do anything of this sort? Bythis one clause you are revolutionising the whole countryand the whole setup. There is no need for it.
Sir, as already pointed out by one of my predecessorsin speaking on this motion, this is entirely antagonistic tothe provision made as regards Fundamental Rights in article19. If it is antagonistic, what is the purpose served by aclause like this? Is it open to this Assembly to pass by onestroke of the pen an article by which the whole country isrevolutionised? Is it intended? I do not know what theframers of this article mean by this. On a matter of suchgrave importance, I am very sorry to find that the framersor the draftsmen of this article have not bestowedsufficiently serious attention to that. Whether it is copiedfrom anywhere or not, I do not know. Anyhow, if it is copiedfrom anywhere, I must condemn that provision even in thatConstitution. It is very easy to copy sections from otherconstitutions of countries where the circumstances areentirely different. There are ever so many multitudes ofcommunities following various customs for centuries orthousands of years. By one stroke of the pen you want toannul all that and make them uniform. What is the purposeserved? What is the purpose served by this uniformity exceptto murder the consciences of the people and make them feelthat they are being trampled upon as regards their religiousrights and practices? Such a tyrannous measure ought not tofind a place in our Constitution. I submit, Sir, there areever so many sections of the Hindu community who arerebelling against this and who voice forth their feelings inmuch stronger language than I am using. If the framers ofthis article say that even the majority community is unifromin support of this, I would challenge them to say so. It isnot so. Even assuming that the majority community is of thisview, I say, it has to be condemned and it ought not to beallowed, because, in a democracy, as I take it, it is theduty of the majority to secure the sacred rights of everyminority. It is a misnomer to call it a democracy if themajority rides rough-shod over the rights of the minorities.It is not democracy at all; it is tyranny. Therefore, Iwould submit toyou and all the Members of this House to take very seriousnotice of this article; it is not a light thing to be passedlike this.
In this connection, Sir, I would submit that I havegiven notice of an amendment to the Fundamental Rightarticle also. This is only a Directive Principle.
Mr. Vice-President: That may be taken up at the propertime.
B. Pocker Sahib Bahadur: What I would submit is onlythis. The result of any voting on this should not be allowedto affect the fate of that amendment.
Mr. Hussain Imam: (Bihar: Muslim): Mr. Vice-President,Sir, India is too big a country with a large population sodiversified that it is almost impossible to stamp them withone kind of anything. In the north, we have got extremecold; in the south we have extreme heat. In Assam we havegot more rains than anywhere else in the world; about 400inches; just near up in the Rajputana desert, we have norains. In a country so diverse, is it possible to haveuniformity of civil law? We have ourselves further onprovided for concurrent jurisdiction to the provinces aswell as to the Centre in matters of succession, marriagedivorce and other things. How is it possible to haveuniformity when there are eleven or twelve legislativebodies ready to legislate on a subject according to therequirements of their own people and their owncircumstances. Look at the protection we have given to thebackward classes. Their property is safeguarded in a mannerin which other property is not safeguarded. In the Scheduledareas,-I know of Jharkhand and Santhal Parganas-we havegiven special protection to the aboriginal population. Thereare certain circumstances which demand diversity in thecivil laws. I therefore, feel, Sir, that, in addition to thearguments which have been put forward by my friends whospoke before me, in which they feel apprehensive that
theirpersonal law will not be safe if this Directive is passed, Isuggest that there are other difficulties also which arepurely constitutional, depending not so much on theexistence of different communities, as on the existence ofdifferent levels in the intelligence and equipment of thepeople of India. You have to deal not with an uniformlydeveloped country. Parts of the country are very verybackward. Look at the Assam tribes; what is their condition?Can you have the same kind of law for them as you have forthe advanced people of Bombay? You must have a great deal ofdifference. Sir, I feel that it is all right and a verydesirable thing to have a uniform law, but at a very distantdate. For that, we should first await the coming of thatevent when the whole of India has got educated, when massilliteracy has been removed, when people have advanced, whentheir economic conditions are better, when each man is ableto stand on his own legs and fight his own battles. Then,you can have uniform laws. Can you have, today, uniform lawsas far as a child and a young man are concerned?
Even today under the Criminal law you give juvenileoffenders a lighter punishment than you do to adultoffenders. The apprehension felt by the members of theminority community is very real. Secular State does not meanthat it is anti-religious State. It means that it is notirreligious but non-religious and as such there is a worldof difference between irreligious and non-religious. Itherefore suggest that it would be a good policy for themembers of the Drafting Committee to come forward with suchsafeguards in this proviso as will meet the apprehensionsgenuinely felt and which people are feeling and I have everyhope that the ingenuity of Dr. Ambedkar will be able to finda solution for this.
Shri K. M. Munshi (Bombay: General): Mr. Vice-President, I beg to submit a few considerations. Thisparticular clause which is now before the House is notbrought for discussion for the first time. It has beendiscussed in several committees and at several places beforeit came to the House. Theground that is now put forward against it is, firstly thatit infringes the Fundamental Right mentioned in article 19;and secondly, it is tyrannous to the minority.
As regards article 19 the House accepted it and made itquite clear that-"Nothing in this article shall affect theoperation of any existing law or preclude the State frommaking any law (a) regulating or restricting"-I am omittingthe unnecessary words-"or other secular activity which maybe associated with religious practices; (b) for socialwelfare and reforms". Therefore the House has alreadyaccepted the principle that if a religious practice followedso far covers a secular activity or falls within the fieldof social reform or social welfare, it would be open toParliament to make laws about it without infringing thisFundamental Right of a minority.
It must also be remembered that if this clause is notput in, it does not mean that the Parliament in future wouldhave no right to enact a Civil Code. The only restriction tosuch a right would be article 19 and I have already pointedout that article 19, accepted by the House unanimously,permits legislation covering secular activities. The wholeobject of this article is that as and when the Parliamentthinks proper or rather when the majority in the Parliamentthinks proper an attempt may be made to unify the personallaw of the country.
A further argument has been advanced that the enactmentof a Civil Code would be tyrannical to minorities. Is ittyrannical? Nowhere in advanced Muslim countries thepersonal law of each minority has been recognised as sosacrosanct as to prevent the enactment of a Civil Code. Takefor instance Turkey or Egypt. No minority in these countriesis permitted to have such rights. But I go further. When theShariat Act was passed or when certain laws were passed inthe Central Legislature in the old regime, the Khojas andCutchi Memons were highly dissatisfied.
They then followed certain Hindu customs; forgenerations since they became converts they
had done so.They did not want to conform to the Shariat; and yet by alegislation of the Central Legislature certain Muslimmembers who felt that Shariat law should be enforced uponthe whole community carried their point. The Khojas andCutchi Memons most unwillingly had to submit to it. Wherewere the rights of minority then? When you want toconsolidate a community, you have to take into considerationthe benefit which may accrue to the whole community and notto the customs of a part of it. It is not therefore correctto say that such an act is tyranny of the majority. If youwill look at the countries in Europe which have a CivilCode, everyone who goes there from any part of the world andevery minority, has to submit to the Civil Code. It is notfelt to be tyrannical to the minority. The point however isthis, whether we are going to consolidate and unify ourpersonal law in such a way that the way of life of the wholecountry may in course of time be unified and secular. Wewant to divorce religion from personal law, from what may becalled social relations or from the rights of parties asregards inheritance or succession. What have these thingsgot to do with religion I really fail to understand. Takefor instance the Hindu Law Draft which is before theLegislative Assembly. If one looks at Manu and Yagnyavalkyaand all the rest of them, I think most of the provisions ofthe new Bill will run counter to their injunctions. Butafter all we are an advancing society. We are in a stagewhere we must unify and consolidate the nation by everymeans without interfering with religious practices. Ifhowever the religious practices in the past have been soconstrued as to cover the whole field of life, we havereached a point when we must put our foot down and say thatthese matters are not religion, they are purely matters forsecular legislation. This is what is emphasised by thisarticle.
Now look at the disadvantages that you will perpetuateif there is no Civil Code. Take for instance the Hindus. Wehave the law of Mayukha applying in some parts of India; wehave Mithakshara in others; and we have the law-Dayabagha inBengal. In this way even the Hindus themselves have separatelaws and most of our Provinces and States have startedmaking separate Hindu law for themselves. Are we going topermit this piecemeal legislation on the ground that itaffects the personal law of the country? It is therefore notmerely a question for minorities but it also affects themajority.
I know there are many among Hindus who do not like auniform Civil Code, because they take the same view as thehonourable Muslim Members who spoke last. They feel that thepersonal law of inheritance, succession etc. is really apart of their religion. If that were so, you can never give,for instance, equality to women. But you have already passeda Fundamental Right to that effect and you have an articlehere which lays down that there should be no discriminationagainst sex. Look at Hindu Law; you get any amount ofdiscrimination against women; and if that is part of Hindureligion or Hindu religious practice, you cannot pass asingle law which would elevate the position of Hindu womento that of men. Therefore, there is no reason why thereshould not be a civil code throughout the territory ofIndia.
There is one important consideration which we have tobear in mind-and I want my Muslim friends to realise this-that the sooner we forget this isolationist outlook on life,it will be better for the country. Religion must berestricted to spheres which legitimately appertain toreligion, and the rest of life must be regulated, unifiedand modified in such a manner that we may evolve, as earlyas possible a strong and consolidated nation. Our firstproblem and the most important problem is to producenational unity in this country. We think we have gotnational unity. But there are many factors-and importantfactors-which still offer serious dangers to our nationalconsolidation, and it is very necessary that the whole ofour life, so far as it is restricted to secular spheres,must be unified in such a way
that as early as possible, wemay be able to say, "Well, we are not merely a nationbecause we say so, but also in effect, by the way we live,by our personal law, we are a strong and consolidatednation". From that point of view alone, I submit, theopposition is not, if I may say so, very well advised. Ihope our friends will not feel that this is an attempt toexercise tyranny over a minority; it is much more tyrannousto the majority.
This attitude of mind perpetuated under the Brit ishrule, that personal law is part of religion, has beenfostered by the Brit ish and by Brit ish courts. We must,therefore, outgrow it. If I may just remind the honourableMember who spoke last of a particular incident from Fereshtawhich comes to my mind, Allauddin Khilji made severalchanges which offended against the Shariat, though he wasthe first ruler to establish Muslim Sultanate here. The Kaziof Delhi objected to some of his reforms, and his reply was-"I am an ignorant man and I am ruling this country in itsbest interests. I am sure, looking at my ignorance and mygood intentions, the Almighty will forgive me, when he findsthat I have not acted according to the Shariat." IfAllauddin could not, much less can a modern governmentaccept the proposition that religious rights cover personallaw or several other matters which we have beenunfortunately trained to consider as part of our religion.That is my submission.
Shri Alladi Krishanaswami Ayyar (Madras: General): Mr.Vice-President, after the very full exposition of my friendthe Honourable Mr. Munshi, it is not necessary to cover thewhole ground. But it is as well to understand whether therecan be any real objection to the article as it runs.
"The State shall endeavour to secure for the citizens auniform civil code throughout the territory of India."
A Civil Code, as has been pointed out, runs into everydepartment of civil relations, to the law of contracts, tothe law of property, to the law of succession, to the law ofmarriage and similar matters. How can there be any objectionto the general statement here that the States shallendeavour to secure a uniform civil code throughout theterritory of India?
The second objection was that religion was in danger,that communities cannot live in amity if there is to be auniform civil code. The article actually aims at amity. Itdoes not destroy amity. The idea is that differentialsystems of inheritance and other matters are some of thefactors which contribute to the differences among thedifferent peoples of India. What it aims at is to try toarrive at a common measure of agreement in regard to thesematters. It is not as if one legal system is not influencingor being influenced by another legal system. In very manymatters today the sponsors of the Hindu Code have taken alead not from Hindu Law alone, but from other systems also.Similarly, the Succession Act has drawn upon both the Romanand the English systems. Therefore, no system can be self-contained, if it is to have in it the elements of growth.Our ancients did not think of a unified nation to be weldedtogether into a democratic whole. There is no use clingingalways to the past. We are departing from the past in regardto an important particular, namely, we want the whole ofIndia to be welded and united together as a single nation.Are we helping those factors which help the welding togetherinto a single nation, or is this country to be kept upalways as a series of competing communities? That is thequestion at issue.
Now, my friend Mr. Pocker levelled an attack againstthe Drafting Committee on the ground that they did not knowtheir business. I should like to know whether he hascarefully read what happened even in the Brit ish regime. Youmust know that the Muslim law covers the field of contracts,the field of criminal law, the field of divorce law, thefield of marriage and every part of law as contained in theMuslim law. When the Brit ish occupied this country, theysaid, we are going to introduce one criminal law in thiscountry which will be applicable to all citizens, be theyEnglishmen,
be they Hindus, be they Muslims. Did the Muslimstake exception, and did they revolt against the Brit ish forintroducing a single system of criminal law? Similarly wehave the law of contracts governing transactions betweenMuslims and Hindus, between Muslims and Muslims. They aregoverned not by the law of the Koran but by the Anglo-Indianjurisprudence, yet no exception was taken to that. Again,there are various principles in the law of transfer whichhave been borrowed from the English jurisprudence.
Therefore, when there is impact between twocivilizations or between two cultures, each culture must beinfluenced and influence the other culture. If there is adetermined opposition, or if there is strong opposition byany section of the community, it would be unwise on the partof the legislators of this country to attempt to ignore it.Today, even without article 35, there is nothing to preventthe future Parliament of India from passing such laws.Therefore, the idea is to have a uniform civil code.
Now, again, there are Muslims and there are Hindus,there are Catholics, there are Chistians, there are Jews, indifferent European countries. I should like to know from Mr.Pocker whether different personal laws are perpetuated inFrance, in Germany, in Italy and in all the continentalcountries of Europe, or whether the laws of succession arenot co-ordinated and unified in the variousStates. He must have made a detailed study of Muslimjurisprudence and found out whether in all those countries,there is a single system of law or different systems of law.
Leave alone people who are there. Today, even in regardto people in other parts of the country, if they haveproperty in the continent of Europe where the German CivilCode or the French Civil Code obtains, the people aregoverned by the law of the place in very many respects.Therefore, it is incorrect to say that we are invading thedomain of religion. Under the Moslem law, unlike under Hindulaw, marriage is purely a civil contract. The idea of asacrament does not enter into the concept of marriage inMuslim jurisprudence though the incidence of the contractmay be governed by what is laid down in the Koran and by thelater jurists. Therefore, there is no question of religionbeing in danger. Certainly no Parliament, no Legislaturewill be so unwise as to attempt it, apart from the power ofthe Legislature to interfere with religious tenets ofpeoples. After all the only community that is willing toadapt itself to changing times seems to be the majoritycommunity in the country. They are willing to take lessonsfrom the minority and adapt their Hindu Laws and take a leaffrom the Muslims for the purpose of reforming even the HinduLaw. Therefore, there is no force to the objection that isput forward to article 35. The future Legislatures mayattempt a uniform Civil Code or they may not. The uniformCivil Code will run into every aspect of Civil Law. Inregard to contracts, procedure and property uniformity issought to be secured by their finding a place in theConcurrent List. In respect of these matters the greatestcontribution of Brit ish jurisprudence has been to bringabout a uniformity in these matters. We only go a stepfurther than the Brit ish who ruled in this country. Whyshould you distrust much more a national indigenousGovernment than a foreign Government which has been ruling?Why should our Muslim friends have greater confidence,greater faith in the Brit ish rule than in a democratic rulewhich will certainly have regard to the religious tenets andbeliefs of all people?
Therefore, for those reasons, I submit that the Housemay unanimously pass this article which has been placedbefore the Members after due consideration.
The Honourable Dr. B. R. Ambedkar: Sir, I am afraid Icannot accept the amendments which have been moved to thisarticle. In dealing with this matter, I do not propose totouch on the merits of the question as to whether thiscountry should have a Civil Code or it should not. That is amatter which I think has been dealt with sufficiently forthe occasion by my
friend, Mr. Munshi, as well as by ShriAlladi Krishnaswami Ayyar. When the amendments to certainfundamental rights are moved, it would be possible for me tomake a full statement on this subject, and I therefore donot propose to deal with it here.
My friend, Mr. Hussain Imam, in rising to support theamendments, asked whether it was possible and desirable tohave a uniform Code of laws for a country so vast as thisis. Now I must confess that I was very much surprised atthat statement, for the simple reason that we have in thiscountry a uniform code of laws covering almost every aspectof human relationship. We have a uniform and completeCriminal Code operating throughout the country, which iscontained in the Penal Code and the Criminal Procedure Code.We have the Law of Transfer of Property, which deals withproperty relations and which is operative throughout thecountry. Then there are the Negotiable Instruments Acts: andI can cite innumerable enactments which would prove thatthis country has practically a Civil Code, uniform in itscontent and applicable to the whole of the country. The onlyprovince the Civil Law has not been able to invade so far isMarriage and Succession. It is this little corner which wehave notbeen able to invade so far and it is the intention of thosewho desire to have article 35 as part of the Constitution tobring about that change. Therefore, the argument whether weshould attempt such a thing seems to me somewhat misplacedfor the simple reason that we have, as a matter of fact,covered the whole lot of the field which is covered by auniform Civil Code in this country. It is therefore too latenow to ask the question whether we could do it. As I say, wehave already done it.
Coming to the amendments, there are only twoobservations which I would like to make. My firstobservation would be to state that members who put forththese amendments say that the Muslim personal law, so far asthis country was concerned, was immutable and uniformthrough the whole of India. Now I wish to challenge thatstatement. I think most of my friends who have spoken onthis amendment have quite forgotten that up to 1935 theNorth-West Frontier Province was not subject to the ShariatLaw. It followed the Hindu Law in the matter of successionand in other matters, so much so that it was in 1939 thatthe Central Legislature had to come into the field and toabrogate the application of the Hindu Law to the Muslims ofthe North-West Frontier Province and to apply the ShariatLaw to them. That is not all.
My honourable friends have forgotten, that, apart fromthe North-West Frontier Province, up till 1937 in the restof India, in various parts, such as the United Provinces,the Central Provinces and Bombay, the Muslims to a largeextent were governed by the Hindu Law in the matter ofsuccession. In order to bring them on the plane ofuniformity with regard to the other Muslims who observed theShariat Law, the Legislature had to intervene in 1937 and topass an enactment applying the Shariat Law to the rest ofIndia.
I am also informed by my friend, Shri Karunakara Menon,that in North Malabar the Marumakkathayam Law applied toall-not only to Hindus but also to Muslims. It is to beremembered that the Marumakkathayam Law is a Matriarchalform of law and not a Partriarchal form of law.
The Mussulmans, therefore, in North Malabar were up tonow following the Marumakkathyam law. It is therefore no usemaking a categorical statement that the Muslim law has beenan immutable law which they have been following from ancienttimes. That law as such was not applicable in certain partsand it has been made applicable ten years ago. Therefore ifit was found necessary that for the purpose of evolving asingle civil code applicable to all citizens irrespective oftheir religion, certain portions of the Hindus, law, notbecause they were contained in Hindu law but because theywere found to be the most suitable, were incorporated intothe new civil code projected by article 35, I am quitecertain that it would not be open to any Muslim to say thatthe framers of the
civil code had done great violence to thesentiments of the Muslim community.
My second observation is to give them an assurance. Iquite realise their feelings in the matter, but I think theyhave read rather too much into article 35, which merelyproposes that the State shall endeavour to secure a civilcode for the citizens of the country. It does not say thatafter the Code is framed the State shall enforce it upon allcitizens merely because they are citizens. It is perfectlypossible that the future parliament may make a provision byway of making a beginning that the Code shall apply only tothose who make a declaration that they are prepared to bebound by it, so that in the initial stage the application ofthe Code may be purely voluntary. Parliament may feel theground by some such method. This is not a novel method. Itwas adopted in the Shariat Act of 1937 when it was appliedto territories other than the North-West Frontier Province.The law said that here is a Shariat law which should beapplied to Mussulmans who wanted that he should be bound bythe Shariat Act should go to an officer of the state, make adeclaration that he is willing to be bound by it, and afterhe has made that declaration thelaw will bind him and his successors. It would be perfectlypossible for parliament to introduce a provision of thatsort; so that the fear which my friends have expressed herewill be altogether nullified. I therefore submit that thereis no substance in these amendments and I oppose them.
Mr. Vice-President: The question is:
"That the following proviso be added to article 35:
`Provided that any group, section or community orpeople shall not be obliged to give up its own personal lawin case it has such a law'."
The motion was negatived.
Mr. Vice-President: The question is:
"That to article 35, the following proviso be added,namely,
`Provided that the personal law of any community whichis guaranteed by the statute shall not be changed exceptwith the previous approval of the community ascertained insuch manner as the Union Legislature may determine by law`."
The motion was negatived.
Mr. Vice-President: The question is:
"That Part IV of the Draft Constitution be deleted."
The motion was negatived.
Mr. Vice-President: The question is:
"That article 35, stand part of the Constitution."
The motion was adopted.
Article 35 was added to the Constitution.
Sardar Hukum Singh (East Punjab: Sikh): Mr. Vice-President, I move:
"That in article 37, for the words `Scheduled Castes'the words `Backward communities of whatever class orreligion' be substituted."
Sir, "Scheduled Castes" has been defined in article 303(w) of this Draft Constitution as castes and races specifiedin the Government of India (Scheduled Castes) Order 1936. Inthat Order, most of the tribes, castes and subcastes aredescribed and include Bawaria, Chamar, Chuhra, Balmiki, Od,Sansi, Sirviband and Ramdasis. It would be conceded thatthey have different faiths and beliefs. For instance, thereare considerable numbers of Sikh Ramdasis, Odes, Balmiki andChamars. They are as the backward as their brethren of otherbeliefs. But, so far, these Sikh backward classes have beenkept out of the benefits meant for Scheduled Castes. Theresult has been either conversion in large numbers ordiscontent.
I do realise that so far as election to legislatureswas concerned, there could be some justification as theSikhs had separate representation and the Scheduled Castesgot their reservation out of General Seats. There is thefamous case of S. Gopal Singh Khalsa who could not beallowed to contest a seat unless he declared that he was nota Sikh. Such cases have lod to disappointment and discontenton account of a general belief that some sections were being discriminated against.
Now the underlying idea is the uplift of the backwardsection of the community so that they may be able to make equal contribution in the national activities. I fullysupport the idea. I may be confronted with an argument thatat least there is the first part of
the article which provides for promotion "of educational and economicinterests of `weaker sections' of the people". So far it isquite good and it can apply to every class. But, as the"weaker sections" are not defined anywhere, the apprehensionis that the whole attention would be directed to the latterpart relating to `Scheduled Castes' and `weaker sections'would not mean anything at all. Even the article lays the whole stress on this latter portion by centralisingattention through the words `in particular' of the`Scheduled Castes'.
I may not be misunderstood in this respect. I do notgrudge this special care of the State being directed towards"Scheduled Castes". Rather, I would support even greaterconcessions being given and more attention being paid tobackward classes. My only object is that there should be nodiscrimination. That is not the intention of the article either. But, as I have said, so far the "Scheduled Castes"have been understood by general masses to exclude themembers of the same castes professing Sikh religion. Weshould be particular in guaranteeing against anymisconstruction being placed or any discrimination beingexercised by those who would be responsible for actualworking of it. Under the present article, it is the"educational and economic interests" that are to be promotedand therefore it should be made clear that it is to be donefor all backward classes, and not for persons professingthis or that particular religion or belief. I commend thismotion for the acceptance of the House.
Shri A. V. Thakkar (United States of Kathiawar:Saurashtra): Sir, I beg to move this amendment (983) whichasks for the inclusion of the backward castes among Hindusand among Muslims...............
The Honourable Dr. B. R. Ambedkar: May I just make astatement? I believe both these amendments dealing with thebackward classes, etc. would be more appropriate to theSchedule and could be better considered when we dealt withthe Schedule. I would suggest that the consideration ofthese amendments may be postponed.
Shri A. V. Thakkar: My amendment seeks to lay downcertain principles......
Mr. Vice-President: Dr. Ambedkar proposes to give thefullest possible consideration to these in the Schedule.
Shri A. V. Thakkur: Does he agree to include allbackward classes?
Mr. Vice-President: He can hardly agree to anythingnow. The matter is open to discussion later.
Shri A. V. Thakkar: Then I do not move my amendmentnow.
Mr. Naziruddin Ahmad: Sir, I am not moving my amendmentNo. 985. It merely seeks to use capital letters in the caseof the Scheduled Castes. I would respectfully draw theattention of the Chairman of the Drafting Committee toarticle 303 (1), items (w) and (x) on page 147 of the Draft Constitution. We have there specified two definitions,`Scheduled Tribes'. `Scheduled Castes' have everywhere beenspelt with capital letters, but `Scheduled tribes' have beenspelt with small letters.
The Honourable Dr. B. R. Ambedkar: We shall considerthat.
Sardar Hukam Singh: I beg leave to withdraw myamendment.
The amendment was, by leave of the Assembly, withdrawn.
Mr. Vice-President: I shall now put article 37 to thevote of the House.
The question is:
"That article 37 do stand part of the Constitution."
The motion was adopted.
Article 37 was added to the Constitution.
Mr. Vice-President: The House will now take up article88 for consideration.
Shri Mahavir Tyagi: Sir, in connection with myamendment No. 999, I have given notice of another amendment(71 in List II) after consulting some of my friends. I hopeMr. Aziz Ahmed Khan who has his own amendment to thisarticle will agree with my amendment. I do not want to makeany speech in moving this amendment. Everybody appreciatesthe value of prohibition. Hence I simply move amendment No.71 in List II:
"That at the end of article 38, the words `and shallendeavour to bring about the prohibition of the consumptionof intoxicating drinks and drugs which are injurious tohealth' be inserted."
Sir, for this attempt of mine I
am conscious of theabuses that will be hurled on me by the dry mouths of thosewho have to stop drinking. I am also aware of the blessingsthat will be showered on me by the wives of those who willbenefit by the removal of this evil. I should only wish"good luck" to the country in case this amendment isaccepted.
An Honourable Member: It is already past 1 o'clock.
Mr. Vice-President: Somebody is surely to blame. Herein this time-piece it is one minute to one.
The House stands adjourned till 10 A. M. tomorrow.
The Assembly then adjourned till Ten of the Clock on Wednesday, the 24th November 1948.