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Supreme Court calls for common civil code

Rakesh Bhatnagar

Wednesday 23 July 2003, by BHATNAGAR*Rakesh

Article du Times of India, ?dition du 22 juillet 2003.

NEW DELHI: The Supreme Court has expressed distress over the government’s failure in enacting a common civil code to end discrimination between various religious communities in the areas of marriage, succession and property and felt that such a code would help in removing contradictions based on religious ideologies.

The court also declared as unconstitutional section 118 of the Indian Succession Act, 1925, which applies to Christians alone and not any other community and imposes restrictions on the community from bequeathing their property for religious and charitable purposes by will.

This is not the first time that the apex court has drawn the law makers’ attention towards the unfulfilled constitutional obligation to give effect to Article 44 of the Constitution. This provision says: ``The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.’’

In the famous Shah Bano case and later in a judgment relating to a Hindu husband converting to Islam in order to legally justify bigamy and avoid penal action, the court had hoped that Parliament would enact a common civil code.

The present judgment is a fall out of a writ petition filed by a Roman Catholic priest, John Vallamattom, filed six years ago challenging the constitutional validity of section 118 of the Indian Succession Act on the ground of discrimination.

Section 118 says that a person having a nephew or niece or any near relative cannot bequeath his property for religious or charitable purposes unless the will is executed not less than 12 months before his death, or the will is deposited within six months from its execution to a place provided by law and it remains in such deposit till his death.

Justice A R Lakshmanan described the provision as ``undue, harsh and special burden on the Christian testor alone’’. Chief Justice V N Khare said that the period of 12 months could not have been linked to the object of performing the philanthropic act. ``As the charitable purposes are philanthropic and since a person’s freedom to dispose off property for such purposes has nothing to do with religious influence, section 118 treating bequests for both religious and charitable purposes is discriminatory and violative of Article 14 of the Constitution,’’ he added.

Justice Lakshmanan said despite the Kerala High Court declaring the provision unconstitutional as far back as 1998, Parliament had not removed it and hence the apex court must declare it as unconstitutional.

In another significant observation dealing with the arguments against a common civil code, CJI Khare said: ``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).’’

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