SC clears statute path for common civil code

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  • Published 24.07.03

New Delhi, July 23: The Supreme Court today called for a common civil code for all citizens of the country, holding that it would not go against the two key constitutional provisions governing religion.

The court said the effort to secure a uniform civil code across India — Article 44 — would not come in the way of the right to freedom of religion or the freedom to manage religious affairs as laid down in Articles 25 and 26 of the Constitution. Rather, it would “help the cause of national integration”.

This is a huge step forward from the arguments made during a similar call seven years ago by Justice Kuldip Singh in the case of a woman, Sarla Mudgal, who was denied maintenance. The matter has generated a lot of heat since the Shah Bano case, in which an apex court judgment granting a Muslim woman maintenance was overturned by a parliamentary legislation.

The BJP reacted with cautious optimism, saying it would try to convince its allies and the Opposition of the need for a code. But the Muslim personal law board trashed the suggestion as “totally unacceptable” and likely to infringe on the community’s religious rights.

Deputy Prime Minister L.K. Advani declined comment. “I am part of the government and, therefore, it will not be proper on my part to make a statement,” he said. ( )

The court today clearly distinguished between the articles providing for freedom of religion and the one calling for a common civil code. Pointing out that they were mutually exclusive, it said that Article 25 “confers freedom of conscience and free profession, practice and propagation of religion” but Article 44 mandates that the “state shall endeavour to secure… a uniform civil code”.

So, Article 44 “divests religion from social relations and personal law”. Further, it is “based on the premise that there is no necessary connection between religious and personal law in a civilised society”.

Chief Justice V.. Khare, who made the observations, said: “It is a matter of regret that Article 44… 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.”

The court’s call came while it was hearing a petition by a priest, John Vallamattom, challenging the validity of Section 118 of the Indian Succession Act for discriminating against Christians. This section imposes restrictions on Christians donating by will property for religious or charitable purposes.

As he quashed the section, Justice Khare also struck at the root of arguments against a uniform code. “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…” he said. Any legislation that sought to do this was “suspect”, he added.

The two other judges on the bench, Justice S.B. Sinha and Justice A. Lakshmanan, concurred with Justice Khare but added their reasons for quashing Section 118 of the succession act.

Justice Lakshmanan said a Christian “having a nephew or niece or nearer relative cannot bequeath any property for religious or charitable use unless:

a) The will is executed not less than 12 months before the death of the testator

b) It is deposited within six months from the date of execution in some place provided by law

c) It remains in deposit till the death of the testator”.

Under the succession act, these provisions do not apply to Hindus, Muslims, Buddhists, Sikhs or Jains. This was challenged by the priest today.

In 1999, Ram Jethmalani had pushed for a common civil code when he was Union law minister. “A Hindu is not compelled to perform nikaah and a Muslim saptapati. But in matters of inheritance, right to property, maintenance and succession, common law should be enacted for all.”