The Hindu Business Line : Succession and secularism: Will a common civil code help?

ON July 21, 2003 the Supreme Court desiderated that Parliament is still to step in to frame a common civil code; a common code will help the cause of national integration by removing the contradictions based on ideologies.

The observations were made while ruling Section 118 of the Indian Succession Act 1925, as being contrary to the constitutional requirement for the state not to deny any person equality before the law.

A petition was moved by a Catholic priest that restrictions on Christians from bequeathing their property to the church while disinheriting their family, unless the will had been made at least 12 months before the testator's demise, violates the fundamental rights of Christians.

The underlying principle of the Section was to prevent persons from making ill-considered death-bed bequests under religious influence. The Section under `void bequests' has been interpreted as applicable to Christians alone.

The basis for the understanding that the limitations of such bequests are applicable only to Christians may be in Section 58 of the Act that certain provisions would not apply to testamentary succession of the property of any Hindu, Muslim, Sikh, Jain, Buddhist. After community consensus, legislative amendment in 1991, Parsis were also excluded.

In the case of Christians, now seen as the only group affected by the restrictions on preventing persons from making what could reasonably be ill-considered death-bed bequests under religious influence, there appears to have been no such community consensus. Actually, Section 118 of the Act continued to be applicable to atheists, traditional belief aboriginal groups, Christians, Jews and Baha'is.

Interestingly, in the decision, the Supreme Court reiterated that the Indian Succession Act confers the right to dispose of property by will upon all persons, irrespective of the caste, creed or religion he belongs to. Thus acknowledging that for succession there already exists a uniform civil code.

The obiter dicta on the requirement for a uniform civil code is that there is no necessary connection between religion and personal law in a civilised society. Marriage, succession and like matters of a secular character cannot be brought within the guarantee of right to freedom of religion — Articles 25 and 26. Any legislation that brings succession and like matters of secular character is a suspect legislation. That was the obiter dicta.

These observations have been the basis for newspaper headlines.

Debates have included impediments to a uniform civil code; putative consensus within the dominant community, which will have to be cobbled together with others; and references to `secularism as enshrined in the Constitution'. All these beg the question: have our legislators been remiss?

The earliest reference to the requirement of a uniform civil code appears to have been made at the Fundamental Rights sub-committee of the Constituent Assembly's Advisory Committee. Minoo Masani moved the suggestion on April 28, 1947 that it was the state's responsibility to establish a uniform code in order to get rid of the water-tight compartments — Masani's turn of phrase for the rack of personal laws.

The proposed article was to be justiciable and would have struck at the heart of orthodoxy. The proposal was rejected in a vote but was subsequently by compromise included in the non-justiciable Directive Principles.

Legislative experience confirms the obstacles deployed within and outside Parliament for enacting a uniform code — even within the dominant community. A Hindu Code Bill, introduced in Parliament in September 1951 had to be dropped.

The Code would have largely invalidated Hindu personal laws, something extremely distasteful to conservatives. Even the then President expressed his desire to act solely on his own judgement, independent of the council of ministers, when giving assent to Bills, or returning them to Parliament for reconsideration. In any event the Dr Rajendra Prasad's proposals were not put to test as the Hindu Code Bill was shelved due to conservative resistance led by among others Purshottam Das Tandon.

The interesting point is that Tandon and many others who opposed the Hindu Code Bill could under no stretch of imagination be regarded as orthodox Hindus. In fact, they often had socialist political views and were quite secular in outlook. Perhaps exemplifying the fact that among Hindus, conservative religious views cannot be equated with the intolerance that is associated with orthodoxy in so many other faiths.

The expression `secularism as enshrined in the Constitution' is an interesting conceit. The word secular or its variants occurs just once in the entire text of the present Constitution. It was only with the 42nd Amendment that the word was inserted in the Preamble and may not have been used in the context of separation between state and church.

The 45th Amendment tried to include a definition of secular republic in the Indian context to mean a republic in which there is equal respect for all religions. Discourses include philosopher-statesman Sarvepalli Radhakrishnan's seminal ideas in his book Recovery of Faith.

In this context Article 29 (1) of the Constitution can be viewed as one of the most powerful defences against excessive interference by the state. The provision stipulates that any section of citizens having a distinct culture of its own shall have the right to conserve the same.

In the context of a social group this would include the group's way of life. Thus, it will be the fundamental right of groups that solemnise marriages by completing seven steps or by tying a tali-pendant to continue to do so in accordance with the provisions of the Hindu Marriages Act 1955.

Article 29(1) will protect the corporate identity of the undivided family as a joint entity for income taxes, succession, protecting the family group's commercial interests. It is difficult to see a uniform civil code making these cultural practices redundant in the eyes of the law.

Will the undivided family of the dominant community be succeeded by the nuclear and disintegrate into the single-parent model that is statistically the norm in the secular West? Article 29(1) will continue to protect family property from being capriciously bequeathed by a Hindu householder to a religious group he may have joined in his twilight years.

Under both the Dayabhaga and Mitakshara schools, the interests of the coparceners are protected and the Hindu householder is only free to alienate his family to the extent of his self-acquired property that should not have been merged with the family property.

Under Muhammadan law, a Muslim can only validly bequeath a third of his net assets, leaving the remaining two-thirds for his family.

In the present decision, the Apex Court discussed two other issues. First, the historical influence of British crown legislation on mortmain and charitable uses evident in Section 118. It may not be correct to understand that these laws were enacted in Britain to prevent persons from making ill-considered death-bed bequests under religious influence.

The mortmain statutes were primarily to prevent crown lands from being acquired in perpetuity by a monastery or similar religious entity. It was not in the interest of the crown to allow monasteries and other religious entities, by their very nature institutions of perpetuity, to acquire, possess and enjoy crown lands in perpetuity.

Persons could bequeath land by will to the religious entity, even for charitable purposes. However unless the crown through the Charities Commissioner authorised retention of the land the entity wishing to enjoy the bequest was required to sell the lands within 12 months and could retain the sale proceeds.

There was also an exception in the case of bequests for secular charitable purposes such as public parks, universities, etc.

In the Middle Ages the church acquired, by purchase and gift, an enormous amount of land and other property. The struggle over this accumulation of material wealth was an important aspect of the conflict between church and state. Moreover, lands held by monasteries and other religious corporations were generally exempt from taxation and payment of feudal dues, greatly increasing the burden on secular property.

Attempts to limit ecclesiastic mortmain began as early as Henry III. 36 (Magna Carta); others being 7 Edward 1.13 (De Viris Religiosis); 13 Edward I. 32; 15 Richard II. 5; and 23 Henry VIII. 10; and by the late 19th Century the right of religious bodies to own land was in general highly restricted. In many countries the prevailing principle limited such ownership to absolutely necessary holdings.

The second issue is that the existing laws provide adequate protection against undue religious influence at the death-bed. Section 61 of the Act rules any bequest caused by coercion is void. However illustration (vii) under the code explains: A being in such a state of health as to be capable of exercising his own judgment and volition, B uses urgent intercession and persuasion with him to induce him to make a will of a certain purport.

A, in consequence of the intercession and persuasion, but in the free exercise of his judgment and volition makes his will in the manner recommended by B. The will is not rendered invalid by the intercession and persuasion of B.

The law-makers were aware of the limitations of Section 61. The Roman Catholics Code of Canon Law Section 984 states: "The confessor is wholly forbidden to use knowledge acquired in confession to the detriment of the penitent..."

Secular law-makers were sceptical and recognised the real possibility of a parishioner on his deathbed being reminded of his past sins, encouraged to repent and make over a part of his fortune to the Church for charitable uses.

The greatest dangers to liberty, said Justice Brandeis, lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

(The author is in the postal service and has interests in jurisprudence and epistemology.)

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