The striking down of Section 118 of the Indian Succession Act by the Supreme Court on Wednesday will not have much immediate consequences as it has no retrospective application, experts say.
Consequently, no assignment of land by any person to a charitable or religious institution, which was held invalid, can be retrieved by such institutions.
The significance of Wednesday's Supreme Court verdict on the Indian Succession Act lies not in its observations favouring a uniform civil code but in the declaration that the right to follow one's personal law is not a fundamental right.
The three-judge Bench has held that marriage, succession and such other matters of secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution (the fundamental right to freedom of religion).
Noticing that too much of stress is being given these days to link personal laws to religion, the Bench said that while Article 25 of the Constitution confers the right to practise and profess religion, Article 44 divests religion from social relations and personal law.
This means that the right of the Christians to follow the Canon Law or the Muslims to follow Shariat Law in areas of secular character does not stem from any of the fundamental rights guaranteed in Part III of the Constitution of India.
Consequently, if Parliament takes a bold step in achieving the constitutional goal set by Article 44 of having a uniform civil code, no community now claiming unquestionable right to follow its own personal law can challenge it on the ground of any violation of the fundamental right.
Moreover, discrimination is the very antithesis of the concept of equality enshrined in our Constitution. If any member of a community following its own personal law is aggrieved that he is discriminated against on account of the application of personal law, he can approach the court for striking down the provision.
This is the ground on which the court has struck down certain provisions of the Indian Divorce Act which is applicable to Christians alone. A female Christian was discriminated against a male Christian with regard to the grounds available to her for seeking divorce, and both male and female Christians were discriminated against the rest of the citizens belonging to all other communities.
In this scenario, the Kerala High Court interfered to streamline Section 10 of the Act and Parliament followed it up with some amendments and the community accepted it magnanimously, despite its theological stance against divorce.
There are two opinions whether ``a common civil code will help the cause of national integration by removing the contradictions based on ideologies,'' as observed by the apex court, or whether it would worsen the situation during such tumultuous times.
It is the will of the Government that matters, it is pointed out. When the Hindu Succession Act was enacted in 1956 the numerous denominations of the Hindu religion did not have a uniform succession law. Each one had its own. Some were contrary to the new law.
But when it was enacted, the community accepted it without any demur. So did the community when the joint Hindu family was abolished by the Kerala Legislature in 1976.