John Vallamattom
& Anr Vs. Union of India [2003] Insc 300 (21 July 2003)
Ar.
Lakshmanan Dr. Ar. Lakshmanan, J.
I have
the benefit of going through the detailed and elaborate judgment prepared by My
Lord Hon'ble the Chief Justice of India. I am respectfully in agreement with
the same. However, I would like to add few more paragraphs as to how the
Christians are aggrieved by the discriminatory treatment meted out to members
of Christian community under the Indian Succession Act, 1925 (hereinafter
referred to as "the Act") by which they are practically prevented
from bequeathing property for religious and charitable purposes. The impugned
provision has already been extracted in the judgment prepared by Hon'ble the
Chief Justice of India. As per the impugned provision, a person having a nephew
or niece or nearer relative cannot bequeath any property for religious or
charitable use unless
(1) the
Will is executed not less than 12 months before the death of the testator,
(2) it
is deposited within six months from the date of execution in some place
provided by law and
(3) it
remains in deposit till the death of the testator.
The
harsh and rigorous procedure envisaged under Section 118 of the Act in relation
to testamentary disposition of property for religious and charitable use does
not apply to members of Hindu, Mohammadan, Buddhist, Sikh or Jaina Community by
virtue of Section 58 of the Act. At the same time, since no exemption is
granted by the State Government to the members of the Christian community under
Section 3 of the Act, Christians cannot bequest property for religious or
charitable use unless fresh Will is executed on the expiry of every 12 months,
if the testator does not suffer from the misfortune of death within the
statutory period of 12 months.
There
is no restriction on Muhammadan on bequeathing property for religious or
charitable purposes. A Muhammadan can validly bequeath one third of his net
assets, when there are heirs. The only restriction as regards the legator is
that he should be of sound mind and he should not be a minor.
As
regards the legatee, it is stated that if the legatee causes the death of the legator,
the Will becomes void and ineffective. Under Muhammadan Law, a Will can be
lawfully made in favour of an individual, an institution, a non- Muslim, a
minor and an insane. As regards the subject- matter, any property can form the
subject of a Will, and both corpus and usufructs can be bequeathed.
In the
case of Hindus, the founding of a temple or a charitable institution is considered
as an act of religious duty and has all the aspects of Dharma.
In my
opinion, there is no justification in retaining the impugned provision in the
statute book, which is arbitrary and violative of Article 14 of the
Constitution, since the mortmain statutes were repealed by the Charities Act,
1960 and by that the very basis and foundation of the impugned provision has
become non-existent. The impugned provision is also violative of Articles 25
and 26 of the Constitution inasmuch as it is an essential and integral part of
Christian religious faith to give property for religious and charitable
purposes. The teachings from the Holy Book of Bible also encourage Christians
to practice charities to attain spiritual salvation.
Whenever
fundamental right to freedom of conscience and to profess, practice and to
propagate religion is invoked, the petitioners contend that the act complained
of as offending the fundamental right must be examined to dishonour whether
such act is to protect order, morality and health, whether it is to give effect
to the other provisions of Part III of the Constitution or whether it is authorised
by a law made to regulate or restrict any economic, financial, political or
secular activity which may be associated with religious practice or to provide
for social welfare and reform. It is the duty and function of the Court so to
do.
As per
Section 118 of the Act, bequest of property for religious and charitable use
fails, if, for any reason, the testator does not suffer from the misfortune of
death within 12 months of execution of the Will or if it is not deposited in
the place provided by law within 6 months, and that since as per the impugned
provision a testator who lives beyond the statutory period of 12 months is not
able to effectuate his wishes in relation to his property, the impugned
provision defeats object of the Will and is harsh, unjust and arbitrary. In
order to survive the challenge under Article 14 of the Constitution, it must be
established that the classification arising out of the impugned provision is
reasonable and that it has a nexus with the object sought to be achieved, and
since in the instant case, the classification between bequests for religious
and charitable use and bequests for other purposes is unreasonable and since it
has no nexus with the object sought to be achieved, the impugned provision is
hit by Article 14 of the Constitution.
The
impugned provision is also attacked as discriminatory and violative of Articles
14 and 15 of the Constitution inasmuch as the restriction on bequest for
religious and charitable purpose is confined to Christians alone and not to
members of other communities. In my opinion, the classification between
testators who belong to Christian community and those belonging to other religions
is extremely unreasonable. All the testators who bequeath property for
religious and charitable purpose belong to the same category irrespective of
their religious identity and so the impugned provision, which discriminates
between the members of one community as against another, amounts to violation
of Article 14 of the Constitution. There is no rationale behind limiting the
survival of testator to a period of 12 months in order to give effect to his
wishes. There is no rationale in the classification between a testator who
survives beyond 12 months and a testator who does not survive beyond the same
period in declaring the will of the former as void and that of the latter as
valid. There is no logic behind fixing 12 months' period, and the testators who
constitute a homogenous class cannot be decided arbitrarily on the basis of the
duration of their survival which is unrelated to the purpose of executing a
will. Since fixation of such a period has no nexus with the object of
performing a philanthropic act, the impugned provision is attacked as liable to
be declared void as violative of Article 14 of the Constitution.
Article
14 of the Constitution states 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 first part of Article 14 of the Constitution of India
is a declaration of equality of civil rights for all purposes within the territory of India and basic principles of republicanism and there will be no
discrimination. The guarantee of equal protection embraces the entire realm of
'State action'. It would extend not only when an individual is discriminated
against in the matter of exercise of his right or in the matter of imposing
liabilities upon him, but also in the matter of granting privileges etc. In all
these cases, the principle is the same, namely, that there should be no
discrimination between one person and another if as regards the subject-matter
of the legislation their position is the same. In my view, all persons of
similar circumstances shall be treated alike both in privileges and liabilities
imposed. The classification should not be arbitrary; it should be reasonable
and it must be based on qualities and characteristics and not any other who are
left out, and those qualities or characteristics must have reasonable relations
to the object of the legislation.
In the
case of D.S. Nakara vs. Union of India (1983) 1 SCC 305, this Court has
observed thus:
"Thus
the fundamental principle is that Article 14 forbids class legislation but
permits reasonable classification for the purpose of legislation which
classification must satisfy the twin tests of classification being founded on
an intelligible differentia which distinguishes persons or things that the grouped
together from those that are left out of the group and that differentia must
have a rational nexus to the object sought to be achieved by the statute in
question." It has been also observed in the above judgment that in the
very nature of things, the society being composed of unequals a welfare State
will have to strive by both executive and legislative action to help the less
fortunate in the society to ameliorate their condition so that the social and
economic inequality in the society may be bridged and in the absence of
doctrine of classification such legislation is likely to flounder on the bed
rock of equality enshrined in Article 14 of the Constitution.
Article
25 of the Constitution deals with freedom of conscience and the right freely to
profess, practice and propagate religion. The contribution for religious and
charitable purposes is a philanthropic act intended to serve humanity at large
and is also recognised as a religious obligation. Therefore, bequesting
property for religious and charitable purposes cannot 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 and therefore, the
impugned provision is arbitrary and unconstitutional. It is also violative of
Article 26 of the Constitution inasmuch as it is an essential and integral part
of Christian religious faith to give property for religious and charitable
purposes. Every Christian shall have the right to establish and maintain
institutions for religious and charitable purposes, manage its own affairs, own
and acquire movable and immovable properties and to administer such property in
accordance with law.
In my
opinion, whether in an enactment religious bequests by a Christian is
discriminatory and violative of Articles 14 and 15 of the Constitution must be
determined as per the rule of procedure laid down by Section 118 of the Act,
which comes with the purview of Articles 14 and 15 of the Constitution, and it
is, therefore, necessary that all testators who are similarly situated should
be subjected to the same rule of procedure. There cannot be any unusual burden
on Christian testators alone when all other testators making similar bequests
for similar charities and similar religious purposes are not subjected to such
procedure. Therefore, in my opinion, Section 118 of the Act is anamalous,
discriminatory and violative of Articles 14, 15, 25 and 26 of the Constitution
and should be struck down.
The
Indian Succession Act though is claimed to be a universal law of testamentary
disposition, but in effect, crucial sections apply only to Christians. There is
no acceptable answer from the other side as to why Section 118 of the Act is
made applicable to Christians alone and not to others.
The
Indian Succession Act came into effect on 30th September, 1925.
As per
Section 4, Part II of the Act shall not apply if the deceased was a Hindu, Muhammadan,
Buddhist, Sikh or Jaina. Section 20 of Part III of the Act is not applicable to
any marriage contracted before the first day of January, 1866; and is not
applicable and is deemed never to have applied to any marriage, one or both of
the parties to which professed at the time of marriage the Hindu, Muhammadan,
Buddhist, Sikh or Jaina religion. As per Section 23 of Part IV of the Act, that
part shall not apply to any Will made or intestacy occurring before the first
day of January, 1866 or to intestate or testamentary succession to the property
of any Hindu, Muhammadan, Buddhist, Sikh, Jaina or Parsi. Likewise, as per
Section 29 of Part V of the Act, that part shall not apply to any intestacy
occurring before the first day of January, 1866 or to the property of any
Hindu, Muhammadan, Buddhist, Sikh or Jaina. By Act 51 of 1991, Parsis were also
excluded from the application of Section 118 of the Act. Thus, it is seen that
the procedure prescribed has been made applicable to Christians alone. There is
also no acceptable answer from the respondent as to why it regulates only
religious and charitable bequests and that too, bequests of Christians alone.
The whole case, in my view, is based upon undue, harsh and special burden on
Christian testators alone. A substantive restriction is imposed based on
uncertain events over which the testator has no control. I, therefore, have no
hesitation to hold that Section 118 of the Act regarding religious and
charitable bequests of all testators who are similar should be subjected to the
same procedure. As the law stands today, a Christian cannot make a bequest for
religious or charitable purposes without satisfying the conditions and
procedures prescribed by Section 118 of the Act. Such a burden, procedural
burden and substantive law burden is not falling upon Hindu, Muhammadan, Jaina
or Parsi testators.
The
very same question was raised before the Kerala High Court. The Division Bench
of Kerala High Court in the case of Preman vs. Union of India reported in
1998(2) KLT 1004 to which I was a party, declared thus:
a)
discriminates against a Christian vis-à-vis non-Christians;
b) discriminates
against testamentary disposition by a Christian vis-à- vis non-testamentary
disposition;
c) discriminates
against religious and charitable use of property vis-à- vis all other uses
including not so desirable purposes;
d) discriminates
against the Christian who has a nephew, niece or nearest relative vis-a-vis a
Christian who has no relative at all; and
e) discriminates
a Christian who dies within 12 months of execution of the Will, of which he has
no control.
It is
pertinent to notice that the judgment of the Kerala High Court was not appealed
against by the respondent therein, namely, the Union of India. Even after the
judgment of the Kerala High Court dated 16.10.1998, the Parliament did not
remove the discrimination.
Under
such circumstances, this Court, in my opinion, in exercise of its jurisdiction
and to remedy violation of fundamental rights, are bound to declare the
impugned provision as invalid and being violative of Articles 14, 15, 25 and 26
of the Constitution. For the foregoing reasons, I am respectfully in agreement
with My Lord Hon'ble the Chief Justice of India that Section 118 of the Act is
unconstitutional and is liable to be struck down as unconstitutional.
In the
result, the writ petition is allowed.
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