DR. AMBEDKAR AND THE HINDU CODE BILL 1207
Dr. Deshmukh : The Chair has invited our opinion.
Shri Bharati : Not for giving directions to the Chair.
Pandit Thakur Das Bhargava : As a Member of this House I wish that this rule of free speech is stuck to. I do not want to put any obstacles in the progress of this Bill. All the same I feel very much offended if I feel an inner urge to speak more and more and yet the Chair pulls me up and does not allow me to speak fully. All Members are expected to put a self-restraint on themselves. Now, I come to the subject.
I am very much indebted to Dr. Ambedkar for having very kindly explained this point of law. I quite see that custom has been defined in many judicial pronouncements. But that was not my point. I wanted to suggest that one of the accepted canons for the validity of custom should be that it should be judicially recognised. I suggest this fact that customs have been judicially recognised may not be given a goby when custom is opposed to public policy. If a custom has been judicially recognised, it means that it has passed through the seam of courts and has received recognition at the hands of the judiciary.
Dr. Ambedkar : If I may intervene for a moment, that question will again arise, or may arise, or may be raised, when we are dealing with each particular clause. My hon. Friend suggested “any custom which is judicially recognised” ! It is perfectly open to him to say so. But as you very rightly observed, if we are to confine our recognition to a judicially recognised custom, it will create many dafficulties, because there are good customs which satisfy all the ingredients of the definition, yet have not come to the court for judicial recognition. I am only anticipating the difficulties.
Shri Santhanam : The word ‘judicially recognised’ may mean, recognition by a district court, or a High Court. We cannot say judicially recognised means recognised by the Supreme Court.
Pandit Thakur Das Bhargava : It must be judicially recognised and further it must be certain. It must be not unreasonable, it must be continuous and it must have the force of law. I only want custom which has been judicially recognised should not be given a go-by in the name of public policy. Therefore all these ingredients of a valid custom which are defined by the judicial courts may be accepted.
Mr. Deputy Speaker: The proviso requires that “the rule is certain”.
Pandit Thakur Das Bhargava : It must be certain, not unreasonable and have the force of law, But the words “and uniformity” and “or opposed to public policy” may not be there. This is the difference I want to see carried out.