DR. AMBEDKAR AND THE HINDU CODE BILL 629
HINDU CODE — contd.
- Mr. Deputy Speaker : The House will now proceed with the further consideration of the Bill to amend and codify certain branches of Hindu law.
Shri Alladi Krishnaswami Ayyar (Madras : General): Sir, before dealing with the different aspects of the Bill as it emerged from the Select
Committee, I should like with your leave to make a few general observations. I may at once say that I do not belong to the school which is against any legislative interference or change in matters of Hindu Law. Law by its very nature cannot be static; it must keep pace with the progresive tendencies of the age, if it is to be an instrument and measure of social progress. Our
ancients were quite alive to this function of law in society. The Smritis as well as the great commentaries on the Smritis, bear eloquent testimony to this function of law in society and the need for changes from time to time. The commentaries which are treated as authoritative interpretations of law in different parts of the country merely give concrete expression to the social
tendencies at work at a given time, but in the modern age with duly constituted Legislatures functioning, no jurist counsel can effect a change in the law by a mere process of interpretation. This function to some extent but within a limited sphere has been discharged by the Courts, the highest tribunals in India and the Judicial Committee of the Privy Council, during
the last one hundred years or so. It is not, however, the normal function of Courts to effect a change in the law but only to interpret the law though in the process of interpretation it may effect imperceptible changes by distinguishing or extracting principles from previous decisions or from Hindu law texts.
But by its very nature, judicial function is restricted in its operation. It cannot be gainsaid that there is also a danger in the Judge consciously or unconsciously assuming the role of a legislator. A particular Judge
or a Bench might approach the consideration of a question from a conservative or orthodox point of view, another Judge might utilise his judicial function for any pet theme of social reform. The judgments of the highest tribunals in this country as well as those of the Judicial Committee of the Privy Council during its long association with India,
bear witness to the above statement. At the same time, there is no gainsaying the fact that the decisions of Courts to a large extent have prepared the ground for legislative intervention. While this need for
- C.A. (Leg.) D., Vol. VI, Part II, 13th December 1949, pp. 510-19.