Thursday, July 24, 2003, Chandigarh, India

National Capital Region--Delhi


M A I N   N E W S

SC favours law on common civil code
Ban goes on disposal of property for religious purposes
Tribune News Service

New Delhi, July 23
Concerned over the contradictions in marriage laws of various religions, the Supreme Court, in a historic judgement, has emphasised the need for a legislation by Parliament on a common civil code.

Holding that there was no “necessary connection” between religious and personal laws in a civilised society, a three-Judge Bench, headed by the Chief Justice, Mr V N Khare, said it was a matter of regret that Article 44 of the Constitution, which provided for the state to “endeavour” to secure a uniform civil code for its citizens throughout the country, had not been effected.

“Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of the national integration by removing the contradiction based on ideologies,” the court said.

The judgement might be a major boost to the ruling BJP which had been striving for a common civil code but had kept the issue out of its agenda under the pressure of the NDA alliance partners. The judgement came on a public interest litigation (PIL) by a Christian priest John Vallamattom and some other citizens of the community, challenging the validity of Section 118 of the Indian Succession Act (ISA), 1925, describing it as discriminatory to their community because it prevented a Christian from bequeathing his property for religious and charitable purposes.

Striking down Section 118 of the ISA by holding it as “violative” of the Article 14 (equality before law) of the Constitution, the other Judges of the Bench, Mr Justice S B Sinha and Mr Justice AR. Lakshmanan, in their separate but concurring judgements, said “Disposition of property for religious and charitable purpose is recommended in all religions but the same cannot be said to be an integral part of it.”

Though Mr Justice Sinha and Mr Justice Lakshmanan, fully concurred with the main judgement, written by the Chief Justice, they did not discuss the need for a law on common civil code separately in their orders.

The court said, “Article 25 of the Constitution confers freedom of conscience and free profession, practice and propagation of religion. According to Articles 25 and 44 while the former guaranteed religious freedom, the latter divested religion from social relations and personal law.”

There was no doubt that marriage, succession and the like matters of a secular character could not be brought within the purview of Article 25 (freedom of propagation of religion) and 26 (freedom to manage religious affairs). “Any legislation, which brings succession and the like matters of secular character within the ambit of these Articles, is a suspect legislation,” the court said, adding the provision of Section 118 also violated the UN Convention on Civil and Political Rights.

While Mr Justice Sinha said that the purpose of Section 118 had lost its significance with the passage of time, Mr Justice Lakshmanan said “the harsh and rigorous procedure envisaged under the Section in relation to testamentary disposition of property for religious and charitable use does not apply to members of Hindu, Mohammedan, Buddhist, Sikh or Jain communities by virtue of Section 58 of the ISA, making it discriminatory against Christians.”

The petitioner had challenged the provisions of Section 118 of the Act on the ground that it discriminated against a Christians vis-a-vis a non-Christians in bequeathing their property for religious and charitable purposes, except by a will executed not less than 12 months before the death, and deposited within six months from its execution in some place provided by the law for the safe custody of it.

The Act said that such a provision was made to prevent a person from making ill-considered death-bed will under the religious influence.

But the court said, “There is no justification in restricting testamentary disposition of property for charitable purposes. Charitable purposes included relief to poor, education, medical and advancement of objects of public utility.”

The charitable purposes were philanthropic and a person’s freedom to dispose of his property for such a cause had nothing to do with the religious influence, and the provision under Section 118, treating bequests for both religious and charitable purposes “is discriminatory and violative of Article 14 of the Constitution,” the court said, observing that the world had witnessed a sea change about the right of equality since the law was enacted.

“We, however, are not oblivious of the fact that restriction to make testamentary disposition of the property to some extent is prevalent under the Mohammedan law also but therein the purpose is to protect the near relation which cannot be said to be the sole purpose underlying Section 118 of the Act,” the court said. 

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