Source: “Eminent Parliamentarians Monograph Series – Dr. Syama Prasad Mookerjee” – Lok Sabha Secretariat, New Delhi, 1990
The clause we are discussing now is of a general character. It raises the question of the applicability of the entire Code and from that point of view, I would like to make some general observations which will be of a relevant character.
The question has arisen as to whether this Code should be made applicable to Hindus as such or to such other classes of persons including Sikhs, Jains and Buddhists as have been mentioned in the amendment moved by the Hon. Law Minister. The question has also been raised whether the Code should not apply to all citizens of India. I would certainly say that as the Chapter in the Constitution dealing with the directive policy of the State indicates, Parliament under the new Constitution has really been called upon to pass a Code which is to be applied to all citizens-an all India Civil Code. When this Bill was started to be discussed, we were working under a different set of circumstances altogether. It is therefore a matter of regret that the new Government even after the Constitution has been passed should proceed with a measure of this description applicable only to one section of the community. It is said that we are a secular State. In fact we suffer very often from a new disease which may be called ‘secularities’. How far is it open to Parliament – I am not raising any technical point – but how far is it desirable for Parliament to pass a law which will be applicable to only one section of the community? I know what the reply of the Law Minister is, because he dealt with this question in one of his previous speeches. He said that there was no difficulty in formulating an all India Civil Code if the country really wanted it. If that is the answer, then why not let us have such a Code? I doubt very much if some of the provisions which have been suggested in this Code can be proposed to be made applicable to other communities, in particular to Muslims. We are discussing the question of monogamy. I believe it is nobody’s case that monogamy is good for Hindus alone or for Buddhists alone or for Sikhs alone. I believe those who are advocating monogamy honestly feel that this system is sound in principle and it should be made applicable if not to all persons in this civilised world, at least to all citizens in India who are liable to be governed under laws passed by this Parliament. Now, why not have a separate Bill dealing only with monogamy and make it applicable to all citizens?
I am not going to tread on this question because I know the weaknesses of the promoters of the Bill. They dare not touch the Muslim community. There will be so much opposition coming from many throughout India that the Government will not dare to proceed with it. But of course you can proceed with the Hindu community in any way you like and whatever the consequences may be.
Shri Rajagopalachari: Because we are the community.
Dr. S.P. Mookerjee: My appeal to the House and to the Government should be on a somewhat different basis. I do not wish to make my speech very controversial.
Shri Kamath: Why not? Make it as controversial as you can.
Dr. S.P. Mookerjee: I want to create that atmosphere where matters affecting social reform can be discussed in a method of give and take. It is not a Press Bill which the Law Minister is sponsoring on behalf of the Home Minister. We do not want the Police to stand outside this Parliament to help the smooth passage of a Bill dealing with social reform. That does not really help anybody. Any Bill whose object is to introduce social reform must have the support of the vast majority of the people of the country.
In any case, if we want to have social reforms in this country, we would like to carry as large sections of the people with us as possible. I do not share this view that Parliament has no right to deal with matters of social reform. I know the sacredness of our ancient texts – Vedas, Smritis and Srutis. But historically there were commentators to interpret the great theories which are propounded by the original lawmakers in days of yore. Gradually, the commentators also disappeared and what we have witnessed during the last 150 years is that in many matters affecting social reform, Judges including European Judges smiling in distant London and legislators have from time to time come forward and made alterations in the social structure of the country. So it is rather too late in the day for any one of us to say that Parliament should not now have the right to pass legislation which may interfere with the rights and privileges which may be enjoyed by the people of this country under the existing law.
So far as the right of this Parliament is concerned, naturally it is a very delicate matter. For me being a Member of this body it is rather difficult to challenge its jurisdiction, but of course so far as its right to present the will of the people goes, that is a matter which will be decided in the next few months and the people themselves will give their verdict. It is no use either for us sitting on this side or Members of Government sitting on the other side claiming for this Parliament things which may not be actually, honestly and legitimately claimed for this body. But my point is this that today there is a volume of opinion – a strong body of opinion, against some or many of the fundamental features of this Bill. I beg of hon. Members who are supporting this Bill to appreciate the depth of these criticisms. There may be some features in this Bill with which I am in agreement, but I am trying to look at this measure from the point of view of those who are opposing it either in whole or in part. Just as we may appreciate the depth of the feelings of those who are supporting this measure, so also the depth of feelings of those who are opposing it must be appreciated. How to find a solution? From the papers we find that for strategic reasons it has been decided to omit the consideration of some portions of this Bill.
A sort of toss is supposed to have been taken. On one side are marriage and divorce and on the other side is property and somehow marriage and divorce have won the day, and property has been relegated to the background for the time being.
Is it possible for us on the consideration of the amendments which are now before the House under clause 2 to devise some procedure whereby it may be left open to those who desire to come under the Code to take the fullest advantage of its provisions, and at the same time give freedom to those who do not believe in the sanctity or legality or justice of the provisions to continue to be governed by existing Hindu Law?
That is a proposal which I am making in a perfectly relevant manner on the basis of the various amendments ordered to be placed before the House for consideration.
I have been told by some friends that we are liable to criticism for our backwardness in many foreign countries. During the last few days I have been told that some people have come and said that in China they are watching when the Hindu Code Bill will be passed! In America some people are supposed to be watching as regards the progressive nature of the Indian people – in relation to their attitude towards the Hindu Code.
Let us look at the American laws. I was trying to get some information with regard to the American laws. I find that in 26 different States in America they do not allow marriage between Americans and Negroes and even they go to the length of indicating the fraction of African blood which will negative any marriage between an American and Negro. In some States marriage between an American and Chinese is prohibited, or a marriage between an American and a Mongolian. In practically all the States there are different marriage laws – What about uniformity? I suppose people of the United States of America are getting on quite merrily and quite well without having complete uniformity of all marriage laws. So uniformity is not the last word on the subject. Uniformity suggests stagnation, deadness.
I would suggest that we should follow the lead given by our own country. Now take again the Roman Catholics. According to their strict law, according to their religion, divorce is not allowed. But in almost all countries they have passed civil laws which allow Roman Catholics to adopt divorce if necessary. But they have not touched their religion. They have allowed that to remain separate, but those among the Roman Catholics who desire to be governed in accordance with the civil laws, it is open to them to do so. It is very difficult to get these laws. But whatever books are available in the Parliament Library, I was trying to go through them and I find that a clear distinction is made between the two systems.
Now we are confining ourselves for the present to marriage and divorce. What is worrying the so-called progressives in this country, including progressive ladies? They are anxious that there should be a provision for divorce and there should be provision for monogamy. These are the two things on which great stress has been laid. Now let us take divorce for the time being. You have got your laws passed by the Indian Legislature which permit divorce. At one stage a Hindu could not get married under the civil laws, unless he declared that he was not a Hindu. Even that has been changed. A Hindu may remain a Hindu and at the same time contract a marriage which will be according to his taste or that of the couple. Similarly, with regard to inter-caste marriage, you have already passed laws and made such inter-caste marriages permissible, without taking away the Hindu character of the persons involved. Even sagotra marriage which is considered to be very revolting by large sections of the people has been recognised by laws passed by the Legislative Assembly.
These are indications as to how the demand for a progressive development – if I may say so – of marriage laws has been met by legislatures of this country. This is a subject which is placed in our Constitution in the Concurrent List and I believe Bombay and Madras have passed laws on the subject. There are several States where provincial laws have been passed in some form or another, making provisions which are consistent with the wishes of the people. Now the point is this. Why do you wish to make the new laws obligatory only upon Hindus? You do not wish that the system of divorce should be taken advantage of, or must be taken advantage of, by people against the will of the parties concerned. It is an enabling measure and that power is already in existence.
On the other hand, what is the blow that you are giving at the feelings of millions of people? Now you have kept his form of sacramental marriage on paper. You have· changed its description from sacramental to “dharmic” in order to give it a little oriental and attractive colouring. Of course, the substance has not changed. I would ask very seriously those Members of the House who are supporting this Bill: What is it – that you are achieving by this proposal?
So far as sacramental marriage goes this is an ideology which lies deep-rooted in the minds of millions of people -educated and uneducated, literate and illiterate – the indissoluble nature of Hindu marriage. That is a matter of religion; it is not a matter of mere body and flesh. Now that is a feeling which lies deep in the minds of millions of people and I have talked to many people not only in my own province but in various parts of India. People who have not the remotest chance of taking advantage of any divorce law for various reasons are simply shocked at this idea and many people who are well-intentioned, who are reformers suggest that if there are Hindus in the country today who want to take advantage of the modern system of divorce or want to do away with the religious nature of Hindu marriage, there is enough opportunity given to them under the existing law. If, however, the law has to be revised in order to make them ultra-modern and completely up-to-date, let the law be revised for their benefit. But why do away with the fundamental and sacred nature of Hindu marriage? What is it that you gain thereby? I have not been able to get any satisfactory answer to this question. Because it is nobody’s case that the new methods which are being laid down will be compulsorily adopted by all Hindus. Obviously that is nobody’s case. Therefore, if an option is given and if people take advantage of that option, naturally your case is won.
I was told that even in India, as India is today, there are nearly about 90 per cent among Shudras amongst whom some form or other of divorce or dissolution of marriage exists. Very well, then the answer is there. You have got your Hindu Law which provides for the dissolution of marriage in castes and communities where it is wanted. You may ask, “Why should about 10 or 15 percent of the Indian population stand against these changes?”. It is not a question of anybody’s standing against the changes. If you want to go ahead or go backwards – whatever it may be – you are welcome to do so. But why drag others who do not believe in you and also who believe in – something which is perfectly morally justifiable and in accordance with the highest standards of human conduct? I have not been able to get any answer to this fundamental question.