New Delhi, 15 September 1951
My dear Mr. President,
I have received today your letter of the 15th September, and with it your note on the Hindu Code Bill. I have read this note with care.1 As desired by you, I shall place it before the Cabinet.2 The legal and constitutional questions you raise are important. In the last paragraph of your note you have mentioned that it may be necessary for you to inform Parliament of your viewpoint. You also refer to your right to examine the Bill on its merits when it is passed by Parliament before giving your assent to it.3
These are serious matters of great constitutional importance. They might involve a conflict between the President on the one side and the Government and Parliament on the other. They would inevitably raise the question of the President’s authority and powers to challenge the decision of Government and of Parliament. The consequence would obviously be serious.
I do not wish to say much on this subject except that, in our view, the President has no power or authority to go against the will of Parliament in regard to a Bill that has been well considered by it and passed. The whole conception of constitutional government is against any exercise by the President of any such authority.
You have been good enough to mention to me, on several occasions, your disapproval of the Hindu Code Bill. I pointed out on each occasion that the Government had given the most earnest consideration to the principles underlying this Bill and were fully committed to them. This Bill is not a new measure and it has been before the country for a number of years. There has been a very great deal of discussion and argument about it outside and within Parliament. It is after the fullest consideration of all the factors that Government came to the conclusion to press this Bill forward in Parliament. It has already been discussed, in the earlier stages, at great length. There have been many informal committees, and noted public men, representing various viewpoints, have been consulted. As a result of such consultations, major changes have been made in the Bill. The object aimed at was to reduce controversy to a large extent and to gain as large a measure of approval of the Bill as possible.
The question of the competence of the present Parliament to enact such a measure was raised in Parliament itself, and after much discussion, the Speaker gave a ruling on the subject. The various grounds mentioned in paragraph 1 of your note4 were considered by Parliament and a decision taken thereon. It is hardly open to anyone, even the President, to challenge that decision. Otherwise, the question would arise as to whether Parliament is the supreme legislative authority in this country or not.
You refer to the revolutionary changes contemplated by the Bill. The Bill is now, in the opinion of many, a very moderate measure of social reform with very little, if any, of revolution about it. Indeed, it is very largely a codification of the existing law. In this codification even custom has often been accepted as a guiding factor. It was felt strongly by large numbers of people, of varying opinions, that some such codification was necessary to bring some certainty and uniformity in the law.
Certain changes have been introduced, but they can hardly be called far-reaching. Indeed, many of those persons who stood strongly in favour of this Bill are severely disappointed at it because of its very moderate character. The changes suggested are generally recognized by thinking people the world over as desirable and as being in consonance with modern conditions and the spirit of the time. Indeed, as you have pointed yourself,5 some of these changes have already been introduced in various states.6 No one, to my knowledge, has called them revolutionary changes there, nor has there been any marked reactions against them.
It is true that when any social or economic changes are proposed in an existing structure of society, there are always some elements which are strongly in favour of them and some opposed to them very strongly. No reform can take place if this opposition is considered to be an adequate bar to change. The mere fact of long-established static conditions can hardly be considered an argument for no change, even though facts otherwise warrant it.
I hardly think that it is correct to say that public opinion is overwhelmingly against the proposed measure. Parliament is supposed to represent public opinion in this and other matters, and even apart from this there has been a very widespread expression of opinion in the country in favour of the Bill.
Yours sincerely,
Jawaharlal Nehru
FOOTNOTES
* To Rajendra Prased. File No. 48(4)(a)/ 48-PMS.
1. Rajendra Prasad’s note to Nehru expressing a desire to act solely on his own judgement, independently of the Council of Ministers, when giving assent to Bills to Parliament for reconsideration. He maintained that the Provisional Parliament did not have the authority to enact such major legislation as the Hindu Code Bill because it was indirectly elected and its members lacked the public ‘mandate’ of a general election. He desired to use the power of his office either to force the Provisional Parliament to shelve the measure or, failing that, to veto it even against the advice of his Cabinet.
2. Prasad had written: ‘I feel I owe it to you and to the Cabinet to put you in possession of my view so that you and the Cabinet may not be taken by surprise.’
3. Rajendra Prasad had also written: ‘But if I find that any action of mine at a later stage is likely to cause embarrassment to the Government, I may take such appropriate action as I may feel called upon to avoid such embarrassment consistent with the dictates of my own conscience.’
4. He found it inconceivable for any Government or Parliament to undertake legislation of such a fundamental character without obtaining an express mandate from the electorate at a general election where the question was specially raised.
5. Rajendra Prasad wrote: ‘It has been said that in some states polygamy has been prohibited by law while in others it still continues and it is considered necessary to enact the law to remove this anomaly.’
6. Monogamy had become a part of the law, in states like Madras, Bombay and Saurashtra and divorce was practised by a large number of people governed by the customary law, and it was statutorily recognized in Baroda.