“Men should at least be allowed to be born free.. To strangle their freedom and self-respect even while in the womb of their mother, permanently fix their social status and rights, disgrace them for their birth, then compel them to live in that disgrace all their life, simply because they were horn of their parents, is a practice no civilised people would tolerate and it is this practice that the Bill aims at reviving and strengthening in the name of ‘Caste’. It will be a vote of India’s unfitness for freedom and self-government”.
A CRITICISM OF THE BILLS TO
CODIFY HINDU LAW
introduced in the Central Legislative Assembly
(March 1943)
(SWAMI DHARMA THEERTHA; BA, LL.B.)
- Lacking in Definiteness and Clarity.
(a) The term ‘Hindu’ is not defined satisfactorily. Its scope is made to depend on the scope of the Hindu Law. But the Bills do not say what is ‘Hindu Law’. Hence the courts and the people are left, as hitherto, to the mercy of the ancient scriptures.
(b) Terms like caste, Varna, Gotra, Pravara, etc. are also not defined but referred to the Hindu Law.
The term Hindu may be so defined as to include “any native of India by birth or domicile who is not governed by Christian or Muslim Law or any other law of marriage, , inheritance and succession in force in British India.”
- Bills not Self-contained.
The object of codification is to replace the confused and conflicting ancient authorities and later decisions called ‘Hindu Law’ by a code intelligible by itself. This object is not fully achieved as the Bills are made to depend on the Hindu Law for some vital purposes. This leaning on the Hindu Law is quite unnecessary and is resorted to because the Bills want to preserve some ideas and customs which are quite irrational and cannot be explained or justified except by reference to another unintelligible authority called the Hindu Law.
- Based on incorrect interpretation and understanding of Facts and Principles.
The Bill relating to marriage states: “Caste means one of the four primary Varnas or castes into which Hindus are divided”:
(a) Varnas are not castes, castes are not Varnas. Varna stands for a classification which is almost entirely based on conduct, character and moral qualities and has hardly anything to do with the birth of the person. Caste is entirely based on birth and has nothing to do with any rational -principle or conduct or moral qualities. Caste and -Varna are mutually irreconcilable concepts. (See History of Castes by S. V. Kelkar).
(b) The main castes are more than three thousand and not four as presumed in the Bill. (See History of, Castes by S. Kelkar, Census reports 1911 and 1921).
(c) All Hindus are not divided into the four castes or Varnas. There are many Hindus who do not
come under the four Varnas or castes and are independent of them. There are• many who do
not own any caste. (Census ‘Reports 1931 and 1941).
- Unnecessary and Unjust Provisions.
The introduction into the Bills of terms and ideas like Varna, Caste, Gotra, Pravara, etc. are quite unnecessary. They serve no useful purpose, represent no intelligible ideas, are morally unsupportable and involve grave injustice.
(b) Because the above irrational concepts are preserved in the Bills, they have to depend on the Hindu Law which also is thus unnecessarily preserved.. as something independent of the Hindu Code.
(c) Recognition of Caste or Varna absolutely unnecessary and unjustifiable.
(1) The Bill relating to intestate succession does not refer to any caste or Varna. Its provisions apply to all Hindus irrespective of these differences. It shows conclusively that there is no justification for introducing these ideas into the Bill regarding marriage.
(2) Rules of succession are a matter affecting the-division of property and may vary in practice in different localities. But marriage is a universal and natural phenomenon among all civilised peoples. Why should that be subjected to extraordinary or unnatural restrictions like “Caste” unknown anywhere else in the world?
(3) A marriage which is not permissible under clause
4 (b) becomes quite valid as soon as it is performed in violation of the law, according to Clause 7, which shows that the prohibition under 4 (b) is unreasonable and unnecessary.
(4) The Committee has made no attempt to explain or justify why a restraint on the ground of caste is necessary in regard to marriage, which is another evidence of its indefensibility.
(5) The Bill has ignored all the more than 3,000 castes and the much larger number of sub-castes and picked up four castes only for preservation. What harm would happen if these are also ignored or what benefit would accrue by their preservation are questions which the Committee has had no courage to consider.
- Prejudicial to healthy Reform and Progress.
(a) So long as social evils and superstitions like caste are based merely on unregulated customs and tradition, there is a chance of their dying out by confusion or non-observance as is actually happening, If they are given statutory recognition in .a code, all reform and progress would become difficult, if not impossible.
(b) Just as Hindu-Muslim differences have become dangerously acute as a result of their recognition for political purp6ses, so the caste divisions will be emphasised and will lead to similar unhappy results by their adoption and enforcement by the legislature.
(c) Many millions of Hindus are already discontented with the caste system. There are many others who are hoping to abolish it. The Bill will be a blow to all such and will reinforce the dying forces of orthodoxy and caste exploitation.
(d) There is no justification to make the procedure of Civil marriage difficult and offensive. It should be as easy and as much like that of the customary ‘marriage as possible. The provisions regarding the Civil marriage in the Bill seem to serve, only to discourage them. In places like Malabar the customary marriages are registered by the village officers on a simple report by the parties. Such a procedure will meet the requirements of registration in the case of Civil marriages also. That the Committee has an idea to discourage Civil marriages is evidenced by the suggestion in the explanatory note that “it is worth considering whether a Hindu should be treated as an outcast for entering into a Civil marriage.”
- Based on unhealthy attempt to revive and perpetuate Caste differences…
Many unnecessary and irrational ideas and provisions. have crept into the Bills as a result of the eagerness shown to safeguard the “Castes.”
(a) The undefinable Varna is brought in to give justification to caste.
(b) Unnecessary words like Gotra and Pravara are introduced without definition to give strength to the caste.
(c) Two kinds of marriage are promulgated solely to preserve the castes..
(d) Civil marriages are made inconvenient and offensive with a view to safeguard the castes.
(e) Threat of outcasting is held out to discourage civil marriage and preserve the castes.
(f) The Bill itself is made ludicrous by prohibiting certain marriages in. one clause but validating them as soon as they are celebrated in violation of the provision, solely for the purpose of maintaining the castes.
(g) The fundamental object of codification is frustrated by recognising a Hindu Law apart from the: Code, also for the safety of the castes.
- Opposed to canons of justice and human freedom..
(a) Men should at least be allowed to be born from To strangle their freedom and self-respect even while in the mother’s womb, permanently fix their social status and rights and disgrace them for their-birth, and then compel them to live in that dis-grace all their life, simply because they were born of their parents, is a practice no civilized people would tolerate and it is this practice that the Bill aims at reviving and strengthening in the name of caste.
(b) No student of History can deny that the caste system has been the chief cause of the downfall and subjection of many millions of Indians and that even to-day it is responsible for the communal antagonisms which disgrace the country and constitute a threat to peace and good relations with other countries. It is such a vicious system the bill tends to prop up.
Free citizenship and democracy are impossible so long as men are considered to be unfree, unequal and disunited by their very birth and they are compelled to live in the atmosphere of life-long inferiority and discord. A people who consider their own co-religionists and countrymen unfit to associate with or hereditarily inferior should not be allowed to have any voice in the government of the country as they cannot be just or impartial. The legalising of the caste system will be a declaration of the unfitness of Indians for power and freedom.
(d) People may ignorantly cling to evil customs and superstitions. The legislature need not penalise them if it has not the courage to do so. But there is no justification for any government or legislature to go out of its way to justify such evils and enforce them on the people destroying their legitimate human freedom and self-respect, No government deserving to be called civilised should take pains to recognise and enforce the castes which are so fundamentally absurd and cruel. But the Bill does that.
(e) Freedom of marriage is one of the elementary rights of a citizen. To restrain it without sufficient justification is opposed to public morality. In no part of the world is marriage prohibited on the ground of caste. Even in India there is no such prohibition among the Muslims or Christians or Sikhs or the Hindu Arya Samajists or Brahmo.
Samajists, If the Indian Legislature sanctions such an obnoxious restraint on the right of marriage, it would be an act worthy of worldwide-condemnation.
(f) The principles of Varna cannot be and are not observed by any man today. The rules of caste are also violated every day by most Hindus in one form or other. It is such an unnatural and, untrue conception that the Bills attempt to prop. up without any necessity.
The caste divisions are a source of prestige and power to 5 per cent of the Hindus (Brahmans)… To all the rest they mean life-long inferiority and disgrace. To the Muslims, Christians and other non-Hindus the social exclusiveness of caste is an unendurable insult. That a modern Indian Legislature should vote for the enforcement of such an atrocious weapon of exploitation and, slavery is unthinkable. If it does, it would be a vote of the Indian’s unfitness for self-government. (Please see “The Menace of Hindu Imperialism” by Swami Dharma Theertha, BA., LL.B., Caste and Democracy by K. M. Panikkar and an article entitled “India and New India” by Sir Hari Singh Gour, Kt., M.A., D. Litt. D. C. LL.B. in the Calcutta Review, Feb. 1942).
Amendment Suggested.—In the Bill re Marriage-omit clauses 2(a), (b) and 4 (b). Make procedure of civil marriage simpler.
