The Constitutional Assembly Debates. Monday, the 9th December The first meeting of the Constituent Assembly of India took place in Constitution Hall. CONSTITUENT ASSEMBLY. official Constituent Assembly Members. official Some Facts of Constituent Assembly. official Constituent Assembly Debates. official. The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Eleven .. require prolonged discussions and postponement of the debate to some.
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The Constituent Assembly of India met in the Constitution Hall, New Delhi, at ten of Will you be so good as to tell the House whether the House will debate this. days of formatted, edited and tagged Constituent Assembly debates. Explore . The institutions, process, drafters that framed the Constitution of India. Engage. 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.
The Statecannot undertake to give compulsory education of a secondarycharacter. 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. 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.
I am asking theDrafting Committee to consider it. 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 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 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. 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. 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 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. Vice-President: The question is: "That article 36, as amended, stand part of the Constitution.
Article 36, as amended, was added to the Constitution. Mohamad Ismail Sahib Madras: Muslim : Sir, I movethat the following proviso be added to article "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. 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. 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.
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. Mohamed Ismail Sahib: Article 35 reads thus: "The State shall endeavour to secure for citizens auniform civil code throughout the territory of India. Vice-President: I hold that the Honourable Memberis in order. 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. 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. 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.
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 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 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 yearsof Brit ish rule, they did not interfere with certainfundamental personal laws. 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 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 years failed to door was afraid to do, what the Muslims in the course of years 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. Pocker Sahib Bahadur rose to speak. Vice-President: When we discuss the clause as awhole, you will get your chance. TheMover has called it a new sub-clause, that is A.
We cantake it up later on. The article as a whole is now underconsideration. It is No. 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 "Provided that nothing in this article shall affect thepersonal law of the 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 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. Ananthasayanam Ayyangar: It is a matter ofcontract. 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 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.
Krishnaswami Bharathi: It is sought to be doneonly by consent of all concerned. 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. 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. Vice-President: It is understood and I thank youfor it. 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.
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 - "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. 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 years 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 article 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. Vice-President: That may be taken up at the propertime.
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. 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 inches; 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. 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. Assembly member H. Substitutes for other parts of Article 1 were deemed unnecessary by the Assembly. What were the inclusions proposed for Article 1?
Assembly member K. However, Dr. Ambedkar argued that the policy of the state and how society should be organised — socially, economically — must be decided by the people themselves, according to the time and circumstances, and cannot be specified in the Constitution.
Further, he said that the amendment is unnecessary because there were other sections in the Constitution that covered the principles of state policy. Mookerjee, and V. The committee began discussions while keeping in reference the constitution of Ireland and USA. The biggest issue was dividing the Rights in two groups — justiciable and non-justiciable which was later taken up by the Constituent Assembly itself. Justiciable rights are those which can be enforced in the court of law.
It was understood that these rights applied not just to the prevalent scenario but were guidelines to a position where the country as a whole hopes to reach.
Right to property, movement and profession throughout the country where the first few rights unanimously accepted by the Advisory Committee.
The reasoning was simple — a court of law must not differentiate between individual on the basis on their nationality or citizenship. Reminiscing on the callousness of British Government, the gravity of Right to Freedom was stressed. To this Diwan Bahadur expounded that an independence of nation does directly connote independence of society from untoward activities, because of which even a concept as crucial as freedom must be limited to certain restriction, keeping in mind the welfare of society.
The intent of the Advisory committee was to provide as much freedom to individuals as it was possible in the light of circumstance of the country.
In doing so, they limited a few rights to a certain extent. For instance right of freedom of expression, given its wide ambit, was one of the most controversial rights. To ensure its applicability in positive direction, Dr. Ambedkar explicitly stated that any publication or utterance of slanderous, seditious, obscene or defamatory matter shall be against the law and the Right shall issue no defence.
This clause of preventing sedition is a powerful tool in the hands of government and the points that opposed Dr. Ambedkar have turned out to be a real threat. In March, a group of students cheering for Pakistan during something as trivial as a cricket match was charged to be seditious. The point here to note, is not what happened but the power given to the authorities to do so.