NEW DELHI July 23. The Supreme Court has suggested that Parliament frame a common civil code for the country as that would help the cause of national integration.
A three-judge Bench, comprising the Chief Justice, V.N. Khare, Justice S.B. Sinha and Justice A.R. Lakshmanan, made this suggestion while declaring as unconstitutional Section 118 of the Indian Succession Act, 1925 (ISA) on the ground that it was arbitrary, irrational and violated Article 14 of the Constitution. (Article 14 says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.)
The Bench was allowing a writ petition from a Christian priest, John Vallamattom, challenging the provision as it discriminated against Christians bequeathing their property for charitable and religious purposes.
Writing the main judgment, the Chief Justice observed "it is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies".
Under Section 118 of the ISA, applicable only to Christians, "no man having a nephew or niece or any nearer relative shall have power to bequeath any property to religious or charitable uses, except by a will executed not less than 12 months before his death and deposited within six months from its execution in some place provided by law for safe custody of the will of living persons".
The Bench said that while Article 25 of the Constitution guaranteed freedom of conscience and free profession, practice and propagation of religion, Article 44 (the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India) divested religion from social relations and the personal law. The Bench observed: "It is no matter of doubt that marriage, succession and the like matters of secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution (right to freedom of religion)."
It was of the view that any legislation which would bring succession and the like matters of a secular character within the purview of these two Articles was suspect.
The Bench also pointed out that India being a signatory to the Declaration on the Right to Development adopted by the World Conference on Human Rights and United Nations Covenant on Civil and Political Rights, Section 118 of the ISA must be judged from these covenants. Mr. Justice Sinha and Mr. Justice Lakshmanan wrote separate but concurring judgments. They, however, did not touch upon the common civil code aspect.
In his judgment, Mr. Justice Lakshmanan pointed out that such a procedural burden mandated under Section 118 of the ISA was not falling upon Hindu, Muslim, Jain or Parsi testators.
He was of the view that contribution for religious and charitable purposes was a philanthropic act intended to serve humanity at large and was also recognised as a religious obligation.
Therefore, bequeathing property for religious and charitable purposes could not be controlled or restricted by the Legislature as it would offend the fundamental rights of the testator under Articles 25 and 26 of the Constitution.
He further observed that there could not be any unusual burden on Christian testators alone when all other testators making similar bequests for similar charities and religious purposes were not subjected to such procedure.
Mr. Justice Lakshmanan held that Section 118 of the ISA "is anomalous, discriminatory and violative of Articles 14, 15 (prohibition of discrimination on grounds of religion...), 25 and 26 of the Constitution and should be struck down".