1. Heard Mr. P. Chidambaram, Senior Advocate, for Mr. Tony George Kannathanam and Mr. Romy Chacko for the petitioner and Mr. K. Ramakumar, Senior Central Government Standing Counsel for the first respondent in O.P. No. 5150 of 1995 and the sole respondent in O.P. No. 16501 of 1996. The petitioners in both the Original Petitions are Christians. Aggrieved against Section 118 of the Indian Succession Act, 1925, they have filed the Original Petitions to declare the said provision as unconstitutional, discriminatory, arbitrary and violative of Articles 13(1), 14, 15(1), 25 and 51A of the Constitution of India and to direct the State Government to exempt Christians from Section 118 by invoking Section 3 of the Indian Succession Act since Section 118 is violative of Article 14 of the Constitution of India. A further direction is also sought for to the State Government to take a decision on Ext. P-1 representation and pass a speaking order within one month.
2. According to the petitioners, they are aggrieved by the discriminatory treatment meted out to members of Christian community under the Indian Succession Act by which they are practically prevented from bequeathing property for religious and charitable purposes. The Indian Succession Act, 1865 was repealed and replaced by the Indian Succession Act, 1925, which was enacted consolidating various other enactments relating to intestate and testamentary succession. The statement of objects and reasons of the 1925 Act discloses that it is intended to consolidate Indian law relating to succession. Section 3 of the said Act confers power on the State Government to exempt any race, sect or tribe in the State from the operation of Sections 5 to 49, 58 to 191 and 212 of the Act. Under Section 4 (Part II of the Act (of domicile), the provisions of Part II of the Act shall not apply if the deceased was a Hindu, Mohammedan, Budhist, Sikh or Jaina. Section 20, Part III deals with interests and powers not acquired nor lost by marriage. This provision will not apply to any marriage contracted before the first day of January, 1866; and it shall not apply and shall be deemed never to have applied, to any marriage, one or both of the parties to which professed at the time of the marriage the Hindu, Mohammadan, Buddhist, Sikh or Jaina religion. Section 23 of Part IV (of consanguinity) of the Act provides that the said part shall 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, Mohammadan, Buddhist, Sikh or Jaina or Parsi. Under Section 29(1), Part V of the Act (Intestate Succession), Part V of the Act shall not apply to any intestacy occurring before the first day of January, 1866, or to the property of any, Hindu, Mohammadan, Buddhist, Sikh or Jaina. Sub-section (2) of Section 29 states that save as provided in Sub-section (1) or any other law for the time being in force, the provisions of this Part shall constitute the law of India in all cases of intestacy. Section 31 of Chapter II of the Act provides that the said Chapter shall not apply to Parsis. Section 50 of Chapter III lays down general principles relating to intestate succession among Parsis. Section 57 of Part VI deals with the application of certain provisions of that Part to class of wills made by Hindu, etc. and provides that the provisions of the said part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply to (a) all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and (b) to all such wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and (c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by Clauses (a) and (b); provided that marriage shall not revoke any such will or codicil. As a result of the above provisions, wills made by Hindus, Buddhists, Sikhs or Jaina on or after 1927 must be reduced to writing, signed and attested. But all wills made by Hindu, Buddhist, Sikh or Jaina before the 1st January. 1927, outside the areas governed by the Hindu Wills Act, i.e., outside the Province of Bengal and the Presidency towns of Madras and Bombay, were valid even if made orally or unattested. Section 58 does not apply to Muhammadans and has a limited application only to the extent specified in Section 57 to Hindus, Buddhists, Sikhs and Jaina. Section 58(2) says that the provisions of Part VI shall constitute the law of India applicable to all cases of testamentary succession, save as provided in Sub-section (1) or any other law for the time being in force.
3. We will now come to Section 118, the Constitutional validity of which is challenged in these proceedings. Section 118 reads as follows :
"118. Bequest to religious or charitable uses :-- No man having a nephew or niece or any nearer relative shall have power to bequeath any property to religious or charitable uses, except by a will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the wills of living persons.
Section 118 is not applicable to Hindus, Mohammadans, Buddhists, Sikhs or Jaina as per Section 58 of the Act. By Act 51 of 1991, a proviso was added to exclude Parsis also. Section 118 of the Act is based on English Mortmain Act. That Act has now been repealed and replaced by the Mortmain and Charitable uses Act, 1888. Under that Act, every assurance of any hereditaments of any tenure, for any charitable uses, is void unless made with the requirement of the Act, and prohibited the gift by will to a charity of any interests in land. But by an amending Act of 1891, land may be assured by will to or for the benefit of any charitable use; but in such case it is required to be sold, as a rule, within one year from the testator's death. The object of the above provision and the intention of the legislature in enacting this section was to prevent death bed bequests to charitable trusts by persons having near relatives, and the section must be construed in a sense which is in harmony with that intention and so as to give real meaning to each part of the section, if that can be done without doing violence to the plain language thereof. The section plainly means that to the extent to which the bequest is for religious or charitable uses, the application of this section is attracted despite the fact that the bequest is only a part of the property or some interest in such property. As already noticed, the section has no application in the case of Hindus and such a bequest made by a Hindu for charitable and religious purposes is not governed by this Section. Who are the near relations for the purpose of Section 118 is to be determined according to the Table of Consanguinity, vide Section 28, Schedule 1. The term 'any nearer relative' includes father, mother, son, daughter, grandfather, grandmother, grandson, granddaughter, brother or sister, The word 'relative' means legitimate relative and has no application to any relationship by marriage. It includes adopted son also. So a Christian testator having a nephew or niece or nearer relations must execute the will at least 12 months before his death, otherwise the bequest for religious or charitable use would be void. It must also be deposited according to the provisions of this Section, within six months of its execution in some place pro vided by law for the safe custody of wills of living persons.
4. According to the petitioner, 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 Indian Succession Act in relation to testamentary disposition of properly 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 a Christian community under Section 3 of the Act, Christian cannot bequeath property for religious or charitable use unless fresh will is executed on the expiry of every twelve months, if the testator does not suffer from the misfortune of death within the statutory period of 12 months.
5. The further submission is that Section 118 owes its origin to the statute of mortmain and since the latter statute is no more in force, there is no justification in retaining the impugned provision in the statute book. Moreover, after the commencement of the Indian Constitution in 1950, it is contended that a pre-constitution statute can remain in operation only if it is consistent with the provisions of the Constitution. It is pointed out that a Muhammadan can validly bequeath one third of his net assets, when there are heirs. There is no restriction on bequeathing property for religious or charitable purposes. 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. Counsel for the petitioner referred me to Manu Smriti and quoted Slokas 227 and 228 which are extracted hereun-der:
" 1. One should practise charity with a pleasant heart to the deserving, as far as he can. Offering charity is real worship of God without the elaborate procedure of having sacrificial fire like.....
2. At least something should be given in charity when sought as one of the many beneficiaries may lift the donor from going to hell."
It is submitted that Bhagavad Geeta and some of the Smritis encourage charity for the spiritual well being of humanity.
6. It is then submitted that as for Christians, faith, hope and charity are the three theological virtues. Disposition of property for the religious and charitable purposes, according to the petitioner, is an integral part of Christian religious-faith. Both the Holy Bible and the canon law speak on the obligation of a Christian to give property for religious and charitable purposes. In support of the submission counsel for the petitioner cited verses 18 to 22 of Chapter XIX of the Holy Gospel according to St. Luke which reads thus :
"18. A Jewish leader asked Jesus, "Good Teacher, what must I do to receive eternal life."
19. "Why do you call me good?" Jesus asked him. No one is good except God alone. You know the commandments: 'Do not commit adultery; do not commit murder; do not steal, do not accuse anyone falsely; respect your father and your mother' ".
21. The man replied, "Ever since I was young, I have obeyed all these commandants".
22. When Jesus heard this, he said to him. "There is still one more thing you need to do. Sell all you have and give the money to the poor, and you will have riches in heaven; then come and follow me".
7. It is stated in the Original Petition that there is no justification in retaining the impugned provision in the statute book, which is arbitrary and violative of Article 14 of the Constitution of India, since the mortmain statutes were repealed by Charities Act, 1960 and by that the very basis and foundation of the impugned provision has become non-existent. In Ground B of O.P. 16501 of 1996 it is stated that the impugned provision is 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. Counsel seeks support for the above proposition from the Canon law and has quoted from the Code of Canons of the Eastern Churches which reads thus :
"The Christian faithful are bound by an obligation in their own patterns of activity always to maintain communion with the church.
All the Christian faithful must make an effort to live a holy life and to promote the growth of church and its continual sanctification.
The Christian faithful have the right to worship God according to the prescriptions of their own church sui juris and to follow their own form of spiritual life consonant with the teaching of the church.
The Christian faithful are free to found and to govern associations for charitable and religious purposes or for the promotion of the Christian vocation in the world, they are free to hold meetings to pursue these purposes in common."
It is then submitted that the teachings from the Book of Holy 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 discover whether such act is to protect public 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. Since in the instant case the impugned law has nothing to do with any of the aforesaid restrictions on Article 25, according to the petitioners, the same is liable to be declared as void.
8. Petitioners further contend that in the instant case, a testator who lives not beyond twelve months after the execution of will is deprived of his very right to establish a religious or charitable endowment and hence the impugned provision is hit by the freedom of religion under Article 25 of the Constitution of India, and that the impugned provision is also hit by Articles 27(a) and (b) of the Constitution as the religious denominations of Christians are deprived of their right to establish and maintain institutions for religious and charitable purposes and to own and acquire property. The freedom guaranteed by Article 25 is to profess, practice and propagate religion. The freedom of practice is primarily concerned with religious worship, ritual and observations. The logic underlying the constitutional guarantee regarding practice of religion is that religious practices are as much as part of religion as religious faith or doctrines. Since, by virtue of the impugned provision, any form of contribution by a testator for religious worship or rituals is made practically impossible, it is alleged that the impugned law is hit by Article 25. It is also submitted that the impugned provision offends Article 21 of the Constitution of India also as the choice of a legatee and the purpose of bequest is part of the right to life and personal liberty of the testator. Every human being has the instinct for survival and existence. Right to live with dignity does not comprehend extinction of life which amounts to an unnatural death. Right under Article 21 which has a negative aspect cannot be construed to include the positive aspect of right to die and therefore it is submitted that the impugned provision which provides that the testator, in order to effectuate his wishes, should die within a period of twelve months is hit by Article 21.
9. Petitioners also contend that as per Section 118 of the Indian Succession Act, 1925 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 six months, and that since as per the impugned provision a testator who fives beyond the statutory period of 12 months is not able to effectuate his wishes in relation to his property, the impugned provision defeats the object of the will and is harsh, unjust and arbitrary. According to the petitioners, in order to survive the challenge under Article 14, 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 of India.
10. Theimpugnedprovisionisalsoattackedas 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, and it is contended that the classification between testators who belong to Christian community and those belonging to other religions is extremely unreasonable. It is submit-ted that such classification has ho nexus with the object sought to be achieved. It is contended that all 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. Even assuming that the purpose of the impugned provision is to prevent bequest of property under religious influence, there is no justification according to the petitioners in restricting testamentary disposition of property for charitable purpose, Charitable purpose includes relief of the poor, education, medical relief, advancement of objects of public utility etc. As the aforesaid charitable purposes are philanthropic in character and since a person's freedom to dispose of property for such purposes has nothing tq do with religious influence, the impugned provision, treating the bequests for both religious and charitable purposes in the same category, is alleged to be violative of Article 14 of the Constitution. It is further contended that the impugned provision is also bad since nothing is provided under it to save bequests for religious and charitable use which are not subject to any outside influence.
11. The next contention is that 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 classifica tion between a testator who survives beyond 12 months and a testator who does not survive be yond the same period in declaring the will of the former as void and that of the latter as valid, is the contention. According to the petitioners, apart from the fact that the period or duration of the life of a testator has no relation with the purpose of the will, there is no logic behind fixing 12 months period, and the testators, who constitute a homog enous class, cannot be divided 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 de clared void as violative of Article 14 of the Constitution.
12. Separate counter-affidavits have been filed in both the Original Petitions on behalf of the Union of India. The relevant portions of the counter-affidavits read as follows :
"Though Indian Succession Act, 1925 is a pre-constitutional enactment, yet it continues in force in the territory of India even after the commences merit of the Constitution of India by virtue of Article 372 of the Constitution. The repeal of the mortmain statute does not affect the operation of the impugned provision. The Indian Parliament is not bound by any legislative changes or development in England or any other foreign country. The Indian Parliament represents the will of the people of this country and that it is not guided or controlled by the wisdom of English legislature. It is the prerogative of the Indian legislature to decide whether the impugned provision should be repealed or modified and till that time it will have force throughout the territory of India. The allegation to the effect that the impugned provision is violative of Articles 14, 15, 21, 25 and 26 of the Constitution is untenable and hence denied."
XXX XX Giving property for religious or charitable use is not an essential tenet of Christian religious faith. Further, the impugned provision does not fetter the right of a person to alienate property for religious or charitable purpose. It only prescribed the procedure for testamentary disposition of property for religious and charitable use. The legislature is within its power to do so.
xxx xx The impugned provision does not deprive the petitioner or any other similarly placed persons establishing religious and charitable endowment. As the period of twelve months prescribed under Section 118 is part of the procedure for giving effect to a person's will, the same does not offend the religious right of anyone.
xxx xx .....the impugned provision only regulates the procedure for giving effect to a will executed for religious and charitable use and that it does not in any manner deprive a person from contributing for religious and charitable purpose.
Article 21 of the Constitution is not at all attracted in the instant case and so the contention to the contrary is denied. Article 21 is subject to procedure established by law. As the procedure prescribed under Section 118 of the Indian Succession Act is fair and reasonable there is no violation of Article 21. It is fundamental that the testator should die in order that, a will should become effective. The period of twelve months prescribed under Section 118 is conceived, in public interest. As long as a person is alive the will does not become effective and so the contention that a person who lives beyond the statutory period is not able to effectuate his wishes in relation to his property is without any merit. There is no merit in the allegation that Article 14 is violated. The classification between bequests for religious and charitable purpose and those for other purposes is perfectly reasonable and that it has nexus with the object sought to be achieved.
xxx xx The legislature recognises different personal laws for different religious communities. The same does not in any manner offend Article 14 of the Constitution as Article 14 does not mandate that the personal laws should be the same for all communities. The contention that all testators who bequeath property for religious and charitable purpose belongs to the same category irrespective of their religious identity is incorrect and hence denied. The classification of testators based on their religious faith is reasonable and it has nexus with the object sought to be achieved.
XXX XX The impugned provision only means that the bequest of property for religious and charitable purpose becomes effective in respect of those willsexecuted not less than twelve months before the death of the testator. The period of twelve months prescribed under Section 118 cannot be challenged as it amounts to questioning the wisdom of the legislature which is impermissible. The impugned provision docs not make any arbitrary division among the testators based on religion or duration of life and so the contention to the contrary is without any merit and hence denied.
XXX XX It is submitted that the object of imposing this restriction is to prohibit death-bed bequests to religious or charitable uses by persons having near relations. The provisions of Section 118 of the Act. 1925 has stood the test of the time and is continuously existing in the Act. In AIR 1993 SC 477 :(1993 Lab IC 129) Indra Sawhney v. Union of India, the Hon'ble Supreme Court has held that "where a decision has stood the test of time and has never been doubted, we have respected it unless, of course, there are compelling and strong reasons to depart from it". Hence, it is not correct to suggest that the period of restriction prescribed in Section 118 of the Act is unreasonable, arbitrary and viblative of the Article 14 of the Constitution and is also discriminatory without application of mind.
Personal law of Christians governs Inheritance, Succession, Marriage and Divorce laws. Different personal laws are applicable to different Communities in India. The Constitution of India has accepted this position and it is precisely for this reason that directive principle has been incorporated in Article 44 of the Constitution of India for evolving of Uniform Civil Cdde, but in view of the strong opposition from the Community itself, the Government could not go ahead with the bringing in reforms in the Law. It is the decided policy of the Government that in matters of personal laws applicable to the minority communities, unless the initiative therefore comes from the minority community itself, the Government will not move any legislation in that field.
XXX XX ..... it is submitted that in view of the position stated above. Section 118 of the Indian Succession Act, 1925 may not be held to be unconstitutional, discriminatory, arbitrary and violative of the Articles 13(1), 14, 15(1) and 25 of the Constitution."
13. On the above pleadings, we heard arguments from Mr. P. Chithambaram, learned Senior Advocate on behalf of the petitioners in both the Original Petitions and Mr. K. Ramakumar, learned Senior Central Government Standing Counsel for the respondents.
14. Mr. Chithambaram, after drawing our attention to the Preamble, Sections 4, 20, 23, 28, 31, 50, 57, 58 and 118 of the Act. submitted that five counts of discrimination is implicit in Section 118. They are:
1. It discriminates against the Christian vis-avis non-Christians;
2. It discriminates against testamentary disposition by a Christian vis-a-vis non-testamentary disposition;
3. It discriminates against religious and charitable use of property vis-a-vis all other uses including not so desirable purposes;
4. It discriminates against the Christian who has a nephew, niece or nearest relative vis-a-vis a Christian who has no relative at all; and
5. It discriminates a Christian who dies within 12 months of which he has no control.
The effect of the section is that a Christian, who has a nephew or niece or nearest relative, cannot have his will upheld if he dies within 12 months of his Will and if he makes bequest for religious or charitable purposes.
15. Section 3 of the Act gives power to the State Government to grant exemption. The Slate Government may, by notification in the official gazette, either retrospectively from the 16th day of March 1865 or prospectively, exempt from the operation of any of the following provisions of the Act, namely. Sections 5 to 49, 58 to 191, 212, 213 and 215 to 369, the members of any race, sect ortribe in the State, or of any part of such race, sect or tribe, to whom the State Government considers it impossible or inexpedient to apply such provisions or any of them mentioned in the order. All the persons exempted under this section or exempted from the operation of any of the provisions of the Act under Section 332 are referred to as 'exempted persons'. According to learned Senior Counsel, petitioners challenge the constitutionality of a statute, namely. Section 118 of the Act since they have sustained and is in danger of sustaining some direct injury as the result of enforcement of the said statute.
16. Article 13 of the Constitution deals with laws which are inconsistent with the provisions of Part III to the extent to which it is inconsistent. In support of his contention, learned Senior Counsel drew our attention to a decision of the Supreme Court reported in Bhikaji Narain v. State of M.P., AIR 1955 SC 781. In the above case, the constitutional validity of C.P. and Berar Motor Vehicles (Amendment) Act. 1947 was challenged. The said Act was an existing law at the time when the Constitution came into force which imposed on the exercise of the right guaranteed to the citizens of India by Article 19(1)(g) restrictions which could not be justified as reasonable under Clause (6) as it then stood and consequently under Article 13(1) that existing law became void to the extent of such inconsistency, that is to say, to the extent it became inconsistent with the provisions of Part HI which conferred the fundamental rights on the citizens. In that case, the petitioners were carrying on business as stage carriage operator for a considerable number of years under permits granted under Section 58 of the Motor Vehicles Act, 1939 as amended by the C.P. and Berar Motor Vehicles (Amendment) Act, 1947. Very far-reaching amendments were introduced by the impugned Act into Motor Vehicles Act, 1939 in its application to Central Provinces and Berar by Section 3 of the amending Act. Item (ii) of Sub-section (1) of Section 43 of the Central Act was replaced by fixing maximum, minimum or specified fares or freights for stage carriages and public carriers to be applicable throughout the province or within any area or on any route within the province. There were other clauses as well. The result of these amendments was that power was given to the Government to fix fares or freights throughout the province or for any area for any route; to cancel any permit after the expiry of three months from the date of notification declaring its intention to do so and on payment of such compensation as might be provided by the Rules; to declare its intention to engage in the business of road transport generally or in any area specified in the notification; to limit the period of the licence to a period less than the minimum specified in the Act and to direct the specified Transport Authority to grant a permit inter alia to the Government or any undertaking in which Government was financially interested. Under the new provisions introduced by the Amendment Act, very extensive powers were conferred on the Provincial Government and the latter was authorised not only to regulate or control the fares or freights but also to take up the entire motor transport business in the province and run it in competition with and even to the exclusion of all motor transport operators. These extensive powers were given to the Provincial Government to carry out and implement the policy of nationalisation of the road transport business adopted by the Government. At the date of the passing of the amending Act, there was no such thing as fundamental rights of the citizens and it was well within the legislative competency of the Provincial Legislature to enact that law. It has been conceded that the amending Act was, at the date of its passing, a perfectly valid piece of legislation. Then came our Constitution on 26-1-1950. Part III of the Constitution is headed 'Fundamental Rights' and consists of Articles 12 to 35. The Fundamental Rights conferred by Articles 14 to 35 are protected by the provisions of Article 13. Here, the amending Act was, at the commencement of the Constitution, an existing law. The new provisions introduced by the Act authorised the Provincial Government to exclude all private motor transport operators from the field of transport business. Prima facie, therefore, it was an infraction of the provisions of Article 19(1)(g) of the Constitution and would be void under Article 13(1) unless this invasion by the Provincial Legislature of the fundamental right could be justified under the provisions of Clause (6) of Article 19 on the ground that it imposed reasonable restrictions on the exercise of the right under Article 19(1)(g) in the interests of the general public. In this view of the matter, the Supreme Court has observed that there is no escape from the conclusion that the amending Act, insofar as it was inconsistent with Article 19(1)(g) read with Clause (6) of that Article, became under Article 13(1) void to the extent of such inconsistency. Finally, the Supreme Court observed thus:
"The impugned Act was an existing law at the time when the Constitution came into force. That existing law imposed on the exercise of the right guaranteed to the citizens of India by Article 19(1)(g) restrictions which could not be justified as reasonable under Clause (6) as it then stood and consequently under Article 13(1) that existing law became void 'to the extent of such inconsistency, that is to say, to the extent it became inconsistent with the provisions of Part III which conferred the fundamental righls on the citizens. The law continued in force, even after the commencement of the Constitution, with respect to persons who were not citizens and could not claim the fundamental rights. Nevertheless, after 18-6-1951 when Clause (6) was amended by the Conslitution (First Amendment) Act, 1951 the impugned Act ceased to be inconsistent with the fundamental right guaranteed by Article 19(1)(g) read with the amended Clause (6) of that Article, because that clause, as it now stands, permits the creation by law of State monopoly in respect, inter alia, of motor transport business and it became operative again even as against the citizens."
17. Learned Senior Counsel submitted that in the instant case, the classification between bequests for religious and charitable uses and bequests for other purposes is unreasonable and since it has no nexus with the object sought to be achieved and, therefore, the impugned provision is hit by Article 14 of the Constitution of India and that the said provision is discriminatory and violative of Articles 14 and 15 inasmuch as the restriction on bequests for religious and charitable purposes is confined only to Christians and not to members of any other community and, therefore, the classification between testators who belong to Christian community and those belonging to other religions is extremely unreasonable.
18. Article 14 states that the State shall not deny to any person equalily before the law or the equal protection of the laws within the territory of India. The first part of Article 14 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 malter of exercise of his rights 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 discriminalion between one person and another if as regards the subject-matter of the legislation their posilion is the same. According to learned Senior Counsel, 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. Our attention was invited to the decision reported in Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (AIR 1978 SC 597). In paragraph 49, their Lordships observed thus :
"The interplay of diverse articles of the Constitution guaranteeing various freedoms has gone through vicissitudes which have been elaborately traced by Brother Bhagwati. The test of directness of the impugned law as contrasted with its consequences was thought in A.K. Gopalan and Ram Singh v. State of Delhi, AIR 1951 SC 270 to be the true approach for determining whether a fundamental right was infringed. A significant application of that test may be perceived in Naresh S. Mirajkar v. State of Maharashtra. AIR 1967 SC 1, where an order passed by the Bombay High Court prohibiting the publication of a witness's evidence in a defamation case was upheld by this Court on the ground that it was passed with the object of affording protection to the witness in order to obtain true evidence and its impact on the right of free speech and expression guaranteed by Article 19(1)(a) was incidental. N.H. Bhagwati J. in Express Newspapers (P) Ltd. v. Union of India. AIR 1958 SC 578 struck a modified note by evolving the test of proximate effect and operation of the statute. That test saw its fruition in Sakal Papers (P) Ltd: v. Union of India, AIR 1962 SC 305, where the Court, giving precedence to the direct and immediate effect of the order over its form and object, struck down the Daily Newspaper (Price and Page) Order, 1960 on the ground that it violated Article 19(1)(a) of the Constitution. The culmination of this thought process came in the Bank Nationalisation case where it was held by the majority, speaking through Shah, J., that extent of protection against impairment of a fun-damental right is determined by the direct opera-tion of an action upon the individual's rights and not by the object of the legislature or by the form of the action. In Bcnnctt Coleman & Co. v. Union of India, (1972) 2 SCC 788: (AIR 1973 SC 106), the Court, by a majority, reiterated the same position by saying that the direct operation of the Act upon the rights forms the real test. It struck down the newsprint policy, the circulation, as offending against the provisions of Article 19(1)(a). The action may have a direct effect on a fundamental right although its direct subject matter may be different' observed the Court, citing an effective instance of a law dealing with the Defence of India or with defamation and yet having a direct effect on the freedom of speech and expression. The measure of directness, a,s held by Brother Bhagwati, is the 'inevitable' consequence of the impugned statute."
19. Applying the above ruling, it is pointed out that the direct and inevitable result of the impugned provision will be that the Wilt executed will not come into eftect if the person dies before 12 months. As per Section 118 of the Act, bequests of property for a religious and charitable use fails if for any reason the testator suffers 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 six months. A Christian testator who lives beyond the statutory period of 12 months is not able to effectuate his wishes in relation to his property and, therefore, the provision defects the object of the Will and so it is harsh and discriminatory. Learned Senior Counsel said that Article 14 is the declaration of equality of civil rights of all persons within the territory of India and that it secures equal protection to all such persons in the enjoyment of their rights and liberties without discrimination or fa-vouritism. All persons in similar circumstance shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation and there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same. A rule of procedure laid down by law comes as much within the purview of Article 14 as any rule of substantive law and it is necessary that all litigants who are similarly situated are able to avail themselves of the same procedural ratio and for defence like protection without discrimination.
20. In D.S. Nakara v. Union of India, (1983) 1 SCC 305 : (AIR 1983 SC 1301), the Supreme Court has observed thus:
"15. 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 are 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.
16. As a corollary to this well established proposition, the next question is, on whom the burden lies to affirmatively establish the rational principle on which the classification is founded correlated to the object sought to be achieved ? The thrust of Article 14 is that the citizen is entitled to equality before law and equal protection of laws. In the very nature of things the society being composed of unequals a welfare Stale 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 economical inequality in the society may be bridged. This would necessitate a legislation applicable to a group of citizens otherwise unequal and amelioration of whose lot is the object of State affirmative action. In the absence of doctrine of classification such legislation is likely to flounder on the bed rock of equality enshrined in Article 14. The Court realistically appraising the social stratifica-tion and economic inequality and keeping in view the guidelines on which the State action must move as constitutionally laid down in Part IV of the Constitution, evolved the doctrine of classification. The doctrine was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in need of succour. Legislative and executive action may accordingly be sustained if it satisfies the twin tests of reasonable classification and the rational principle correlated to the object sought to achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the Stale establishes not only the rational principle on which classification is found but correlate it to the objects sought to be achieved. This approach is noticed in Ramana Dayaram Shelly v. International Airport Authority of India, (1979) 3 SCC 489 : (AIR 1979 SC 1628) when at SCC page 506, the Court observed that a discrimi-natory action of the Government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory."
21. Placing reliance on Article 15 of the Constitution, Mr. P. Chithambaram submitted that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. In support of his contention, learned Senior Counsel invited our attention to the decision reported in State of Rajasthan v. Pratap Singh. AIR 1960 SC 1208. The issue before the Supreme Court for consideration in the above case was the constitutional validity of one paragraph of a notification issued by the State of Rajasthan under Section 15 of the Police Act under which the 'harijan' and 'muslim' inhabitants of the villages, in which an additional police force was stationed, were exempted from the obligation to bear any portion of the cost of that force. It is stated that the inhabitants of certain villages in the district of Jhunjhunu in the State harboured dacoits and receivers of stolen property and were besides creating trouble between landlords and tenants as a result of which there were serious riots in the locality in the course of which some persons lost their lives. The State Government, therefore, took action under Section 15 of the Police Act. Under Section 15(5), the State Government granted exemption to Harijans and Muslims of the locality from bearing cost of the additional police force engaged there. Counsel for the State submitted that the exemption of the harijan and muslim inhabitants of the villages was not based only on the ground of "caste' or 'religion' or the other criteria set out in Article 15(1), but on She ground that persons belonging to these two, communities were found by the State not to have, been guilty of the conduct, which necessitated the stationing of the additional police force. The High Court has rejected the said argument. The Supreme Court held that the view expressed by the High Court is correct and held thus :
"It would be seen that it is not the case of the State even at the stage of the petition before the High Court that there were no persons belonging to the other communities who were peace-loving and law-abiding, though it might very well be, that according to the State, a great majority of these other communities were inclined the other way. If so, it follows that the notification has discriminated against the law-abiding members of the other communities and in favour of the Muslim and Harijan communities, -- (assuming that every one of them was 'peace-loving and law-abiding" I on the basis only of 'cast' or 'religion'. If there were other grounds they ought to have been stated in the notification. It is plain that the notification is directly contrary to the terms of Article 15(1) and that para 4 of the notification has incurred, condemnation as violating a specific constitutional prohibition. In our opinion, the learned Judges of the High Court were clearly right in striking down this paragraph of the notification."
22. In Mithu v. State of Punjab,'(1983) 2 SCC 277. (AIR 1983 SC 473), the question that arose for consideration before the Supreme Court was whether Section 303 of the Indian Penal Code infringes the guarantee contained in Article 21 ot the Constitution which provides that 'no person shall be deprived of his life or personal liberty except according to procedure established by law'. It was argued before the Supreme Court that the provision contained in Section 303 is wholly unreasonable and arbitrary and thereby it violates Article 21 of the Constitution. The Supreme Court, after examining the arguments with greater care, came to the conclusion that the impugned provision is arbitrary and unreasonable. In paragraph 13 of the judgment, the Supreme Court observed thus :
"We are also unable to appreciate how, in the matter of sentencing, any rational distinction can be made between a person who commits a murder after serving out the sentence of life imprisonment and a person who commits a murder while he is still under that sentence. A person who has been in jail, say for 14 years, and commits the offence of murder after coming out of the jail upon serving out that sentence is not entitled to any greater consideration than a person who is still serving the sentence of life imprisonment for the mere reason that the former has served out his sentence and the latter is still under the sentence imposed upon him. The classification based upon such a distinction proceeds upon irrelevant considerations and hears no nexus with the object of the statute, namely, the imposition of a mandatory sentence of death. A person who stands unreformed after a long term of incarceration is not, by any logic, entitled to preferential treatment as compared with a person who is still under the sentence of life imprisonment. We do not suggest that the latter is entitled to preferential treatment over the former. Both have to be treated alike in the matter of prescription of punishment and whatever safe guards and benefits are available to the former must be made available to the latter."
Having thus found that Section 303 of the Indian Penal Code is arbitrary and unconstitutional, their Lordships struck down the said provision from the Code.
23. Mr. P. Chithambaram then cited a Full Bench decision of this Court in Mary Sonia v. Union of India, (1995(1) Ker LT 644(FB). In the above case, the constitutional validity of Section 10 of the Indian Divorce Act which regulated divorce among Christians in India for a century and a quarter was challenged. In the two Original Petitions, at the instance of two Christian women, the challenge was that the provisions in Section 10 are violative of the fundamental rights guaranteed to them and other similarly situated Christian women under Articles 14, 15 and 21 of the Constitution of India. In the case of one petitioner, who is a Syrian Christian governed by the Act, she was married to one Zachariah according to the customary rites and ceremonies of the church and a daughter was born out of the said wedlock. She pleaded that her husband has taken a irreversible decision to live with an English lady whom he met while in Nairobi, where he was employed, deserting her and her child once and for all and that her husband has not cared to cohabitate with her or to perform any of the marital obligations and to maintain her and her daughter. Another petitioner also a Christian governed by the Act was married according to the rites, ceremonies and customs of the church and after sometime the husband had deserted with the intention of abandoning her permanently against her wish. The conduct of the husband towards her was very cruel and she was also subjected to insults and accusations of adulterous conduct even in the presence of public, her colleagues etc. Therefore, these insults and absuses made the continuance of the marital life impossible. Before filing the Original Petition before this Court, she filed an OP in the District Court under Section 22 of the Act for a decree of judicial separation on the ground of cruelly and desertion. The District Judge found the husband guilty of cruelly and desertion and has granted a decree for judicial separation. The petitioner had alleged that in spite of lapse of more than two years, there has not been resumption of cohabitation and there is not even an iota of chance for reconciliation. She further alleged that even though there is no chance of reconciliation, it may not be possible to get a divorce since desertion and cruelty are not recognised as grounds for divorce unless adultery is also alleged and proved by her. It is, in the circumstances, that the petitioners have challenged the constitutional validity of Section 10 of Indian Divorce Act. Both the petitioners have thus contended that Section 10 of the Divorce Act, insofar as it makes 'adultery' also necessary to be established along with cruelty and desertion as a ground for divorce, is arbitrary and violative of Articles 14, 15, 19and21 of the Constitution of India. Petitioners have further contended that Section 10 of the Act insofar as it incorporates the word 'incestuous' before the word 'adultery' thereby making an aggravated form of adultery alone as aground for divorce for Christian women whereas all other Indians including Christian men are entitled to get divorce on the ground of 'adultery simpliciter' is violativeof Articles 14, 15 and 21 of the Constitution of India.
24. Union of India filed a counter affidavit opposing the relief prayed for. They said that the Act had remained in force unchanged till date and that the Government was not able to undertake any legislation in view of the strong opposition from the community itself. As regards the scope of judicial intervention by Court, it was submitted that it has been held by all Courts that Section 10 of the Divorce Act specifically sets forth the grounds on which the marriage can be dissolved and no additional grounds can be included by judicial construction of similar provisions in other ennclments unless the Section plainly comprehends such grounds. No declaration as prayed for declaring the provision partly unconstitutional and to retain the rest as valid is permissible since the Section represents a comprehensive scheme to regulate divorce among the married Christians in general. It will amount to judicial legislation or re-writing of a provision in an enactment which may not be justifiable in law.
25. Of the several observations made in various judgments in regard to Section 10 of the Indian Divorce Act, the following observations made by K.T. Thomas, J. (as His Lordships then was), while passing an interim order in one of the cases before the Full Bench, can be beneficially looked into :
"..... After independence, the Indian Parliament brought about radical changes in the marriage law applicable to Hindus, Parsis and even to foreigners living in India by incorporating progressive and realistic grounds for divorce in such enactments. But either for no reason or for reasons which are not easy to comprehend, the law of marriage applicable to Christians remains unrealistic and antiquated."
After observing so, the learned Judge has directed the Union of India to take a final decision regarding the recommendations contained in the 90th Report of the Law Commission within six months from the date of receipt of a copy of the said order. In spite of such positive direction, no final decision to amend the law had been taken by the Union of India.
26. The Full Bench has, in paragraph 31 of the judgment, observed as follows :
"On an anxious consideration of the submissions made by the learned counsel on behalf of the petitioners to which we have already made a detailed reference, we are of the view that life of Christian wife who is compelled to live against her will though in name only as the wife of a man who hates her, has cruelly treated her and deserted her pulling an end to the marital relationship irreversibly will be a sub-human life without dignity and personal liberty. It will be a humiliating and oppressed life without the freedom to remarry and enjoy life in the normal course. It will be a life without the freedom to uphold the dignity of the individual in all respects as ensured by the Constitution in the preamble and in Article 21. It will be a life curtailed in various fields of human activity. On the whole such a life can legitimately be treated only as a life imposed by a tyranical or authoritarian law on a helpless deserted or cruelly treated Christian wife quite against her will, which she is bound to lead till her death tormented always by the feeling that she is remaining as the wife of a man who has treated her cruelly, hated her and deserted her for no fault of her. Such a life can never be treated as a life with dignity and liberty. It can only be treated as a depressed or oppressed life without the full liberty and freedom to enjoy life as one would desire to lead it in the way Constitution has ensured."
27. The further question as to whether the provision will be valid in the light of Articles 14 and 21 of the Constitution, the Full Bench has referred to various judgments reported in Maneka Gandhi v. Union of India. AIR 1978 SC 597, Bangalore M.T. v. Mudduppa, (AIR 1991 SC 1902) : 1991 AIR SCC 2002, Francis v. Administrator, AIR 1981 SC 746 ; (1981 Cri I J 306) and Ramsharan v. Union of India. 1989 Supp (1) SCC 251 ; (AIR 1989 SC 549). The observations made in the above judgments would clearly indicate that the right guaranteed under Article 21 is a right to full enjoyment of life maintaining the quality of life and dignity of the individual in all respect which would also include the protection of a person's tradition, culture, heritage and all that give meaning to man's life. The Full Bench, after elaborate discussion, found that the impugned provisions are violative of the provisions contained in Articles 14, 15 and 21 of the Constitution. Ultimately, the Full Bench struck down the words and phrases 'incestuous' and 'adultery coupled with' occurring in Section 10 as ultra vires and allowed the remaining portion to remain valid along with the rest of the provisions as, according to them, the offending provision cannot be treated as inextricably connected with the remaining portion.
28. We are told that an appeal against the above judgment is pending before the Supreme Court.
29. Inviting our attention to Article 25 which deals with freedom of conscience and the right freely to profess, practice and propagate religion, it is submitted by learned Senior Counsel that contribution for religious and charitable purposes is a philanthropic act intended to serve humanity at targe and is also recognised as a religious obligation. Therefore, bequeathing property for religious and charitable purposes cannot be controlled or restricted by the Legislature as it would offend me 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 inasmuch as it is an essential and integral part of Christian religious faith to give property for religious and charitable purposes. Mr. P. Chidambaram also submitted that every Christian shall have the right to establish and maintain instilutions for religious and charitable purposes, manage its own affairs, own and acquire movable and immovable properties and to administer such properly in accordance with law.
30. Mr. P. Chidambaram relied on Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853. In this case, the petitioner, who is the head of the Dawoodi Bohra community, challenges the constitutionality of the Bombay Prevention of Excommunication Act, 1949 on the ground that the provisions of the Act infringe Articles 25 and 26 of the Constitution of India. In paragraph 41, the Supreme Court answered the question as below :
'That excommunication of a member of a community will affect many of his civil rights is undoubtedly true. This particular religious denomination is possessed of properties and the necessary consequence of excommunication will be that the excommunicated member will lose his rights of enjoyment of such properly. It might be thought undesirable that the head of a religious community would have the power to take away in this manner the civil rights of any person. The right given under Article 26(b) has not however been made subject to preservation of civil rights. The express limitation in Article 26 itself is that this right under the several clauses of the article will exist subject to public order, morality and health. It has been held by this Court in 1958 SCR 895 : (AIR 1958 SC 255) that the right under Article 26(b) is subject further to Clause 2 of Article 25 of me Constitution."
In paragraph 65, their Lordships observed thus :
"Coming back to the facts of the present peti-tion, the position of the Dai-ul-Mutlaq, is an essential part of the creed of the Dawoodi Bohra sect. Faith in his spiritual mission and in the efficacy of his ministration is one of the bonds that hold the community together as a unit. The power of excommunication is vested in him for the purpose of enforcing discipline and keep the denomination together as a entity. The purity of the fellowship is secured by the removal ol persons who had rendered themselves unfit and unsuitable for membership of the seel. The power of excommunication for the purpose of ensuring the preservation of the community, has therefore a prime significance in the religious life of every member of the group. A legislation which penalises this power even when exercised for the purpose above indicated cannot be sustained as a measure of social welfare or social reform without eviscerating the guarantee under Article 25(1) and rendering the protection illusory."
31. Another decision relied on by the learned Senior Counsel is the one reported in Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615 : (AIR 1987 SC 748). The said case was filed by three school children, who are the faithful of Jehovah's witnesses, a worldwide seel of Christians. During the morning assembly at school, the appellants, while respectfully standing during the recitation of the National Anthem 'Jana Gana Mana', refused to sing it on the ground that it is against the tenets of their religious faith. As per their tenets, refusal to sing any National Anthem or salute the National Rag has been well established and recognised world over and upheld by the highest courts in United States, Australia and Canada and found recognition in authoritative works like Encyclopaedia Brilannica. The Director of Public Instructions, Kerala issued circulars to the school children to sing the National Anthem. Consequently, the students were expelled from the school. They filed Original Petition which was rejected by a learned single Judge and then by a Division Bench, Allowing the appeal by Special Leave, the Supreme Court, after considering the cases decided in United States, Australia and Canada and on the basis of authoritative texts, held :
"That the appellant Jehovah's Witnesses truly and conscientiously believe that their religion does not permit them to join any rituals except it be in their prayers to Jehovah their God, is not in doubt. Though their religious beliefs may appear strange or even bizarre, the sincerity of their beliefs is beyond question. They do not hold, their beliefs idly and their conduct is not the outcome of any perversity. The petitioners have not asserted these beliefs tor the first time or out of any unpatriotic sentiment. Their objection to sing is not just against the National Anthem of India. They have refused to sing other National Anthems elsewhere. They are law-abiding and well-behaved children who do stand up respectfully and would continue to do so when the National Anthem is sung. Their refusal, while so standing, to join in the singing of the National Anthem is neither disrespectful of it nor inconsistent with the Fundamental Duty under Article 51-A(a). Jehovah's Witnesses have continually fought for their beliefs and tenets the world over and they have been upheld in judicial pronouncements of several countries. Some of these judicial pronouncements have been cited and approved earlier in our Supreme Court, though in a different context."
"The impugned action also violates Article 25. While interpreting this article it must be borne in mind that Article 25 is an article of faith in the Constitution, incorporated in recognition of the principle that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country's Constitution.
It is the duty and function of the Court whenever the fundamental right under Article 25 is invoked to examine the act and see if it is to protect public order, morality and health, or whether it gives effect to the other provisions of Part 111 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. The purpose of the legislation in question may properly be taken into account in determining whether or not it is a law of the prohibited character."
"In deciding whether Article 25 is attracted in a particular situation the question before the Court is not whether a particular religious belief or practice appeals to its reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. The personal views and reactions of the Court are irrelevant."
"In the present case the expulsion of the appellant-children from school for the reason that because of their conscientiously held religious faith, they did not join in the singing of the National Anthem though they stood up respectfully when it was sung, is a violation of their fundamental right under Article 25 'to freedom of conscience and freely to profess, practice and propagate religion'. They cannot be denied that right on the ground that the appellants belonged but to a religious denomination and not a separate religion."
32. Mr. P. Chidambaram then relied on A.S. Narayana Deekshitulu v. Stale of A.P., (1996) 9 SCC 548: (AIR 1997 SC 3702) (Archakas' case). In the above case, the constitutionality of Sections 34,35,37,39 and 144 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 abolishing hereditary rights of archaka, mirasidars, gamekars and other office-holders and servants like hereditary Karnam of Dwarka Thirumalai Temple in West Godavari District was challenged. Petitioner is one of the Chief Priests (archaka) in an ancient and renowned Hindu temple at Thirumala Thirupathi. According to him, the office of archaka is succeeded from forefathers in accordance with the Vaikhanasa Angama Shastra Rules which govern the temple on the principles of 'heirs in line of succession' among four families. Petitioner contended that the scheme of the Act as such is an unwarranted and outrageous interference with the religion, that is to say, it aims to abolish all existing religious offices, religious usages etc. and confers on the secular State power to decide as to who should he appointed as archaka, mirasidar etc. destroying the existing customs, usage and tradition which are integral part of their religion. Counsel for the State contended that the Act made a clear distinction between matters of religion and religious practices and secular activities of a religious institution or endowments. The Act seeks to regulate only the administration and maintenance of secular part of the religious institutions or endowments. The Supreme Court, in paragraphs 85 and 86 of the judgment, held thus :
"Articles 25 and 26 deals with and protect religious freedom. Religion as used in these articles must he construed in its strict and etymological sense. Religion is that which binds a man with his Customs, his Creator or super force. It is difficult and rather impossible to define or delimit the expressions 'religion' or 'matters of religion' used in Articles 25 and 26. Essentially, religion is a matter of personal faith and belief of personal relations of an individual with what he regards as Cosmos, his Maker or his Creator which, he believes regulates the existence of insentient beings and the forces of the universe. Religion is not necessarily theistic and in fact there are well known religions in India itself like Buddhism and Jainism which do not believe in the existence of God. In India, Muslims believe in Allah and have faith in Islam; Christians in Christ and Christianity: Parsis in Zoroastrianism; Sikhs in Guru Granth Sahib and teachints of Guru Nanak Devji, its founder, which is a facet of Hinduism like Brahmo Samaj, Arya Samaj etc."
"A religion undoubtedly has its basis in a system of beliefs and doctrine which are regarded by those who profess religion to be conducive to their spiritual well-being. A religion is not merely an opinion, doctrine or belief. It has outward expression in acts as well. It is not every aspect of religion that has been safeguarded by Articles 25 and 26 nor has the Constitution provided that every religious activity cannot be interfered with. Religion, therefore, cannot be construed in the context of Articles 25 and 26 in its strict and etymological sense. Every religion must believe in a conscience and ethical and moral precepts. Therefore, whatever binds a man to his own conscience and what ever moral or ethical principles regulate the lives of men believing in that theislic, conscience or religious belief that alone can constitute religion as understood in the Constitution which fosters feeling of brotherhood, amity, fraternity and equality of all persons which find their foothold in secular aspect of the Constitution. Secular activities and aspects do not constitute religion which brings under its own cloak every human activity. There is nothing which a man can do, whether in the way of wearing clothes or food or drink, which is not considered a religious activity. Every mundane or human activity was not intended to be protected by the Constitution under the guise of religion. The approach to construe the protection of religion or matters of religion or religious practices guaranteed by Articles 25 and 26 must be viewed with pragmatism since by the very nature of things, it would be extremely difficult, if not impossible, to define the expression religion or matters of religion or religious belief or practice."
33. Our attention was drawn to certain passages in Black's "Law Dictionary", Sixth Edition which defines 'charitable', 'charitable bequest', 'charitable purpose' and 'charitable use' etc. We will reproduce the definition relating to 'charitable' and 'charitable bequest' for the present purpose :
"Charitable": Having the character or purpose of a charity. The word 'charitable', in a legal sense Includes every gift for a general public use, to be applied consistent with existing laws, for benefit of an indefinite number of persons, and designed to benefit them from an educational, religious, moral, physical or social stand-point. American Soc. for Testing and Materials v. Board of Revision of Taxes, Philadelphia County, 423 Pa, 530, 225 A.2d 557. This term is synonymous with 'beneficent', 'benevolent' and 'eleemosynary'. See also Charity Eleemosynary."
"Charitable bequest" : A bequest is charitable if its aims and accomplishments are of religious, educational, political or general social interest to mankind and if the ultimate recipients constitute either the community as a whole or an unascertainable and indefinite portion thereof."
Our attention was also drawn to paragraphs 501 (definition of charity), 514 (purposes in preamble to be read separately, 518 (poor of a particular religion), 519 (gifts to poor relations), 522 (advancement of education and learning), 523 (education of limited class), 524 (education in particular subjects), 528 (advancement of religion), 529 (religious purposes), 532 (support of clergy and church purposes) and 533 (gifts to holders of religious offices) of the Halsbury's Laws of England, Fourth Edition. Certain passages from the 'Code of Canons of the Eastern Churches' published by Oriental Institute of Religious Studies India, Kottayam, Kerala were also relied on. The rights and obligations of all the Christian faithful have been elaborately dealt with in Can. 7 to Can. 26. Can. 18 says :
"The Christian faithful are free to found and to govern associations for charitable and religious purposes or for the promotion of the Christian vocation in the world; they are free to hold meetings to pursue these purposes in common."
Can. 25 days :
"The Christian faithful are obliged to assist with the needs of the Church so that the Church has what is necessary for its proper ends, especially for divine worship, for apostolic works and works of charity and for the decent sustenance of ministers.
They are also obliged to promote social justice and mindful of the precept of the Lord to assist the poor from their own resources."
34. Mr. K. Ramakumar, Senior Central Government Standing Counsel, in his reply submitted the following :
a) Section 118 does not in any way curtail any right relating to religion, but it only restricts disposal of property which is not part of fundamental rights.
b) It has not been established by pleadings or materials in either of the Original Petitions that a bequest to religious or charitable uses is part of Christian faith and is a mandatory requirement for every Christian to follow.
c) The Act was enacted to achieve the objects intended, which has stood thc test of time for the last 125 years and is an enactment covered under Article 377 of the Constitution of India.
d) The restriction imposed by the impugned provision is only a reasonable restriction and there is no total prohibition. Only a procedure is prescribed and the section only requires to do the Act in a particular manner which is absolutely reasonable. The restriction imposed is within the legislative competence and will not infringe any legal right of the petitioners which could be complained of to invoke the power of this Court under Article 226 of the Constitution of India.
e) As Christians, the petitioners have a right to challenge the validity of the section, provided they satisfy the second limb that any one of his legal right is threatened to be invaded, restricted or prohibited.
f) This is an enactment covered by Article 372 of the Constitution and has not been altered or amended either by any legislature or even no exemption has been granted under Section 3 of the Act under which respective state legislatures were empowered. Religious practices followed by Christians are different and vary from State to State. Respective State Legislatures are given power to exempt if they thought fit, depending upon the local needs, local practices, local usages, etc. Referring to Section 3 the learned Central Government Standing Counsel submitted that neither the former Slate of Travancore or the State of Kerala has thought it fit to exercise the powers under Section 3, which is a clear indication of the fact that as far as the members of the Christian faith living in Kerala are concerned, they do not suffer from any inconvenience, or injustice which is worthy of notice by the State Government to grant exemption and it is in the above context the arguments based on Indra Sawhney's case.
g) Referring to the argument that this is an enactment based on religion and Christians alone are subjected to discrimination and, therefore, is violative of Articles 14, 15 and 25 it is submitted that this is an enactment covering all citizens of India and that there are several provisions in the Act which are made applicable not only to Christians, but to all citizens except Muhammadans. Counsel relied on the decision reported in Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 : (AIR 1985 SC 945). In that case, the wife of a Muslim filed a petition in April, 1978 under Section 125 of the Code of Criminal Procedure against her husband, claiming maintenance. The husband divorced her in November, 1978 by an irrevocable talaq. His defence in the wife's petition was that she had ceased to his wife by reason of the divorce granted by him and he was, therefore, at no obligation to provide maintenance for her. The trial Court ordered maintenance at the rate of Rs. 25/- per month which was enhanced in revision by the High Court to Rs. 179.20 per month. In appeal, a two Judges Bench referred the matter to a Bench consisting of three Judges. Dismissing the husband's appeal with costs and adding that if will be open to the wife to make an application under Section 17(1) of the Code of Criminal Procedure for increasing the allowance of maintenance granted to her on proof of a change in the circumstances as envisaged in by that section, the Supreme Court held that Section 125 is truly secular in character and that it was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. Such provisions which are essentially of a prophylactic nature was held to cut across the barriers of religion, and that they may not supplant the personal law of the parties, but equally, the religion professed by the parties or the State of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes. It was held that the moral edict of the law and morality cannot be clubbed with religion. The learned Central Government standing Counsel drew our attention to paragraphs 27 and 32 of the judgment which are extracted here-under:
"27. It is contended on behalf of the appellant that the proceedings of the Rajya Sabha dated December 18, 1973 (volume 86, column 186), when the bill which led to the Code of 1973 was on the anvil, would show that the intention of the Parliament was to leave the provisions of the Muslim Personal Law untouched. In this behalf, reliance is placed on the following statement made by Shri Niwas Mirdha, the then Minister of State, Home Affairs:
Dr. Vyas very learnedly made certain observations that a divorced wife under the Muslim law deserves to be treated justly and she should get what is her equitable or legal due. Well, I will not go into this, but say that we would not like to interfere with the customary law of the Muslims through the Criminal Procedure Code. If there is a demand for change in the Muslim Personal Law, it should actually come from the Muslim Community itself and we should wait for the Muslim public opinion on these matters to crystallise before we try to change this customary right or make changes in their personal law. Above all, this is hardly the place where we could do so. But as I tried to explain, the provision in the Bill is an advance over the previous situation. Divorced women have been included and brought within the ambit of Clause 125, but a limitation is being imposed by this amendment to Clause 127, namely that the maintenance orders would cease to operate after the amounts due to her under the personal law are paid to her. This is a healthy compromise between what has been termed a conservative interpretation of law or a concession to conservative public opinion and liberal approach to the problem. We have made an advance and not tried to transgress what are the personal rights of Mus-lim women. So this, I think, should satisfy Hon. Members that whatever an advance we have made is in the right direction and it should be welcomed."
32. It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by retrieving disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which ischarged with the duty securing a uniform civil code for the citizens of the country and. unquestionably, it has the legislative competence to do so. A Counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning, inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case."
According to the senior Central Government Standing Counsel, the view of the Supreme Court is what has been made mention of in the counter affidavit that in a country like India, different laws to different religious faith is inevitable and as long as the minority communities do not come forward on their own. State is not in a position to amend the laws to make it uniform.
h) The learned Senior Central Government Standing Counsel drew our attention to the historical background of this enactment and submitted that the unwelcome reality may be appreciated that different communities and religious denominations in this country are still governed in several secular matters by different enactments. According to the Standing Counsel, what is regulated in Section 118 is not any activity connected with religion and no religious practice at all is involved in the section and there is no breach of religious faith as well. It is submitted that if there is a total prohibition, no Christian in India will ever be able to bequest for any religious or charitable purposes, but what is stated in the section is that if one wanted to execute a will, he should do it in a prescribed manner, and that what is regulated in Section 118 is not any activity connected with religion. He referred to the decision reported in Dr. M. Ismail Faruqui v. Union of India, AIR 1995 SC 605 in support of the proposition that owning property is not part of religion, but just a right to property which is no longer a fundamental right, but only a constitutional right under Article 300-A. With reference to the above decision he submitted that even a mosque which has a particular significance to the Muslims in India can be acquired as right to property or right to hold property intimately connected with religion is not part of Article 25 of the Constitution.
35. The learned standing counsel for the Central Government next cited the decision in Adi Visheshwara of Kashi Vishwanath Temple, Varanasiv. The State of U.P., 1997(4) JTSC 124 for the proposition that right to manage a temple is not part of Article 25 of the Constitution. The question involved in that case was whether Sri Kashi Vishwanath Temple is a denominational Temple and whether the Act interferes with freedom of conscience and the right to profess, practice and to propagate religion of ones choice and whether the devotees of Lord Vishwanath are members of religious denomination and shall have the fundamental right to manage its affairs in the matter of religion guaranteed under Articles 25 and 26 of the Constitution or to administer the properties of the temple in accordance (with) law? The Supreme Court, in paragraph 29 of the judgment held as follows :
"The right to establish and maintain institutions for religious and charitable purposes or to administer property of such institutions in accordance with law was protected only in respect of such religious denomination or any section thereof which appears toextendhelpequally to all and religious practice peculiar to such small or specified group or section thereof as part of the main religion from which they get separated. The denominational sect is also bound by the constitutional goals and they too are required to abide by law; they are not above law. Law aims at removal of the social ills and evils for social peace, order, stability and progress in an egalitarian society."
The decision reported in A. S. Narayana Deekshitulu v. State of Andhra Pradesh, (AIR 1996 SC 1765): (1976 AIR SCW 2029) was next relied on by Sri Ramakumar, Paragraph 89 of the said judgment reads as follows :
"89. A religion undoubtedly has its basis in a system of beliefs and doctrine which are regarded by those who profess religion to be conductive to their spiritual well-being. A religion is not merely an opinion, doctrine or belief. It has outward expression in acts as well. It is not every aspect of religion that has been safeguarded by Articles 25 and 26 nor has the Constitution provided that every religious activity cannot be interfered with. Religion, therefore, be construed in the context of Articles 25 and 26 in its strict and etymological sense. Every religion must believe in aconscience and ethical and moral precepts. Therefore, whatever binds a man to his conscience and whatever moral or ethical principle regulate the lives of men believing in that theistic, conscience or religious belief that alone can constitute religion as understood in the Constitution which fosters feeling of brotherhood, amenity, fraternity and equality of all persons which find their foot-hold in secular aspect of the Constitution. Secular activities and aspects do not constitute religion which brings under its own cloak every human activity. There is nothing which a man can do, whether in the way of wearing clothes or food or drink, which is not considered a religious activity. Every mundane or human activity was not intended to be protected by the Constitution under the guise of religion. The approach to construe the protection of religion or matters of religion or religious practices guaranteed by Articles 25 and 26 must be viewed with pragmatism since by the very nature of things, it would be extremely difficult, if not impossible, to define the expression religion of matters or religion or religious belief or practice."
The standing counsel further cited the decision in Gulam Abbas v. State of U. P., (1984) 1 SCC 81 : (AIR 1983 SC 1268). In the case, to find a perennial solution to the problem of violent clashes between Shias and Sunnis of Mohalla Dos Varanasi, the Supreme Court appointed a Committee of seven persons consisting of three nominees of Shias and three nominees of Sunnis and the Divisional Commission as the Chairman. The Chairman, despite the opposition the Sunnis, recommended that shifting of their two grave so as to separate the places of worship of Shias and Suni was feasible. The Sunnis challenged the implementation of the recommendation on the ground of breach of their rights under Articles 25 and 26 and lack of jurisdiction of the Supreme Court to so order. The Supreme Court held :
"The exercise of fundamental rights under Articles 25 and 26 is not absolute, but must yield or give any way to maintenance of public order and the impugned suggestion was mooted by Court and has now been found to be feasible by Chairman of the Committee in the larger interest of the society for the purpose of maintaining public order on every occasion of the performance of religious ceremonies and function by members of both the sects. If the Court finds the implementation of the suggestion to be eminently fit in the interest of maintenance of public order consent of either party would be immaterial.
xxx xx Though the Sheriat Law is against the shifting of graves but the religious rights of every person and every religious denomination are subject to "public order", the maintenance whereof is paramount in the larger interest of the society. The exigencies of public order provide the requisite jurisdiction for the order for shifting of the graves. The ecclesiastical edict of right not to disturb an interred corpse in not absolute as shown by Section 176 (3), Cr. P C which permits exhumation for the purpose of crime detection, a provision applicable to all irrespective of the personal law governing the dead.
The order by the Supreme Court to remove any impediment or obstruction in the implementation of its main order is not beyond its jurisdiction.
The above direction is to bind both communities. The cost of shifting the graves and building the walls has to be borne by the Shia community. If the Sunnis do not cooperate they are restrained from causing any obstruction to the operation.
Rights of third parties not to be affected."
36. Mr. Ramakumar then argued that the pleadings do not reflect what has been argued now before the Court. According to him, howhere in the pleadings it is stated how a Christian citizen of this country is discriminated by continuing and enactment with Section 118 on the statute book apart from just mechanically reciting it is violative of Article 14 of the Constitution. It is argued that a person who challenges an enactment has to satisfy the court by pleadings to initially discharge the burden on him that it is unconstitutional and then only the burden is shifted to the State. It is also contended that there is no whisper in the petition that as a Christian there is a practice of making bequest to religious and charitable purposes which is part of the religion. Nowhere has it been stated in the pleadings according to him that every Christian has a right to denote or to make a bequest unhindered by any enactment in force. It is submitted that the entire argument now built up on this slender theory that it is part of religious practice and faith of a Christian to not only make a donation, but donate it by bequest has not been pleaded at all. Sri Ramakumar further submits that if disposal of property by bequest is part of religious practice, it does not mean that all those Christians who do not bequest are not Christians or irreligious, and therefore it fs submitted that the emphasis is not on religious belief, but on disposal of properties and that every practice of religion and every observance of religion is not covered by Article 25. The standing counsel further submits that sufficient materials have not been provided before this Court either by pleadings or otherwise to say that it is part of religious practice of Christians to bequest property unhindered by any statutory provisions. He also invited our attention to the decision reported in Muhammed Kutty v. Inspector General of Police 1987(1)KLT 409 : (1987 Lab IC 1278) wherein that Court held that beard is no sine qua non of a true believer of Islam, and it cannot be treated as part of religious faith and belief. It was argued in that case that Article 25 confers an absolute right in this regard. The Court held at page 1280 (of LIC) :
"The opening words of Article 25 recite that the right of freedom of conscience and free profession, practice and propagation of religion is subject to public order, morality and other provisions in Part III, including Article 19(2) to (6) empowering restrictions. Restrictions are imposed . for reasons as important as the preservation of the rights themselves. The role of police has to be appreciated in judging the restrictions governing the force. Law enforcement rests appreciably on the police. It must have a secular image and cannot lend itself to denominational nuances or overtones, more so, when national integration and secular concepts should be in the forefront. A 'uniformed force' which connotes a superior discipline cannot don sectarian appearances on Hindus, Muslims and such like. The court should take a commonsense view and be actuated by considerations of practical necessity. Paragraphs 173 and 174 of the Travancore-Cochin Police Manual prohibit the wearing of beard except, with permission and except during pilgrimage, and vows. These provisions have force of law, under Section 17 of the Kerala Police Act. These regulations are reasonable, having regard to the objects sought to be achieved. Even on the assumption, that a religious practice sanctions the wearing of beard, that would not justify the petitioner's claim, to disregard the Rules of his service, which are in a different realm. Besides, these are matters of policy properly left to the Executive Government."
Concluding his argument the learned Standing Ceunsel for the Central Government submitted that going by the principles laid down by the Supreme Court, it is difficult to countenance the argument that a particular religious practice which the petitioners claim, is the basic faith of Christianity without providing any material and that even assuming that there is such a practice, it essentially deals with disposition of property and the right to property. What is impugned is rights in relation to property, than religion. Therefore, according to the learned standing counsel, neither Article 15 nor 25 has any relevance and that it is unnecessary to pronounce on a provision which has stood the test of time.
37. Sri P. Chidambaram, learned senior counsel for the petitioners in his reply submitted that whether in an enactment religious bequests by a Christian is discriminatory and violative of Articles 14 and 15 of the Constitution of India must be determined as per the rule of procedure laid down by Section 118, which comes within the purview of Articles 14and 15, and it is therefore necessary that all testators who are similarly situated should be subjected to the same rule of procedure. Referring to the various decisions cited, Sri P. Chidambaram submitted that 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. It is, therefore, submitted that Section 118 is anamalous, discriminatory and violative of Articles 14,15,25 and 26 and should be struck down.
38. We have given our anxious consideration to the rival claims made by the petitioners and the respondents. We perused the entire pleadings, gone through the decisions cited and considered the arguments on merit. The gist of the arguments of the learned senior Central Government Standing Counsel can be summarised as follows :
a) The Act is not exclusively meant for Christians as contended by the petitioners.
b) Section 118 of the Act does not curtail any right relating to religion. It only regulates disposal of property which is not part of religious rights.
c) Petitioners have not established by pleadings or materials that bequest is part of Christian faith.
d) The object of the Act is laudable and the Act has stood the test of time.
e) What is imposed is only reasonable restriction and only a procedure has been prescribed.
39. The crux of the argument is that the petitioners are challenging only one section of the Act, viz. Section 118. The learned Standing Counsel has no answer as to why that section is made applicable to Christians alone and not to others. The Act is claimed to be a universal law of testamentary disposition, but in effect, crucial sections apply only to Christians.
40. Another important contention raised by the learned Central Government Standing Counsel is that the petitioners have not pleaded that giving charity is part of Christian faith. But a perusal the entire pleadings in both the petitions and in particular of paragraphs 14 to 17 and Ground B of O.P. No. 16501 of 1996 would show that there are enough and more pleadings to show that charity is part of Christian faith and the impugned provision infringes the rights of Christians under Articles 21, 25 and 26 of the Constitution, and further, the impugned provision having been made applicable to Christians alone, excluding all others, is discriminatory and violative of Articles 14 and 15 of the Constitution.
41. Learned Senior Counsel for the petitioners submitted that Articles 14 and 15 will stand or fall on the classification and nexus of the objects sought to be achieved, and therefore, there is no question of reasonable restriction in Article 14 and 15. In so far as Articles 25 and 26 are concerned, it is submitted that there is no question of reasonable restrictions and that the restrictions can only be on grounds of morality, public order and health. The learned Central Government Standing Counsel submitted that only a proce-dure has been prescribed by the impugned provision for testamentary disposition by Christians and, therefore, it is not unreasonable. However, he has no answer as to why such procedure has been restricted to Christians alone.
42. The Standing Counsel submitted that the aforesaid provision has stood the test of time since 1925 and is continuously existing in the Act. In support of the above proposition he relied on the decision of the Supreme Court in Indra Sawhney's case (supra) where the Supreme Court has held that where a decision has stood the test of time and has never been doubted, it has to be respected unless, of course, there are compelling and strong reasons to depart from it. The question is why such a prescription of procedure for Christians alone. As already seen, this 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, Mohammedan, Buddhist, Sikh or 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. That section applies to religious bequests or charitable bequests. The argument of the learned Central Government Standing Counsel is that it regulates the bequests. However, there is no answer by the learned Standing Counsel as to why, it regulates only religious and charitable bequests and that too, bequests of Christians alone. We have already referred to the findings in the Full Bench decision of this Court in Mary Sonia's case (supra). The whole case is based upon undue, harsh and special burden upon Christians. In the instant case, the State is placing undue, harsh and special burden on Christian testators alone. The Full Bench in the above matter has also referred to other legislations now in force in the country. Many people belonging to religions other than Christianity and also Christians outside India, especially in England, who were also governed by an act similar to Indian Divorce Act are entitled to get dissolution of their marriage on the ground of cruelty and desertion for the periods fixed by the respecti ve Acts, and it was found that Christian spouses are meted out with discriminatory treatment. Five major Acts, viz. Hindu Marriage Act, Dissolution of Muslim Marriage Act; Parsi Marriage and Divorce Act, Special Marriage Act, and Foreign Marriage Act were also referred to by the Full BENch. It is seen from Paragraph 18 of the judgment that the Law Commission has suggested comprehensive amendment to the Indian Divorce Act in the bill titled "The Christian Marriage and Matrimonial Causes Bill, 1960" submitted along with its 15th report whereby both husband and wife were given the rights to seek dissolution of marriage on almost all grounds mentioned in the Special Marriage Act including the ground of adultery simpliciter, cruelty and desertion as per Clause 30 of the Bill. The Government also finalised the bill on the lines suggested by the Law Commission and again referred the matter to the Law Commission for their views after inviting opinion from the public. Accordingly, the Commission, after ascertaining public opinion, submitted the 22nd report, reiterating its earlier stand. Though on receipt of the 22nd report, the Christian Marriage and Matrimonial Causes Bill was introduced in the Parliament, the same lapsed on the dissolution of the Parliament.
43. In our view, the Act, to stand the test of the Constitutional mandate of equality before law and equal protection of law in the context of avoiding discrimination, the Act requires an amendment. If the Parliament does not remove the discrimination, the Courts, in our opinion, in exercise of their jurisdiction and to remedy violation of fundamental rights, are bound to declare the impugned provision as invalid.
44. Mr. Ramakumar contended that the impugned provision prescribed only a procedural formality and therefore it is reasonable. We are of the opinion that it is not merely a procedure but it is substantive law plus procedure. A substantive restriction is imposed based on uncertain events over which the testator has no control. As pointed out by the Supreme Court In re Special Courts Bill, 1978(AIR 1979 SC 478), whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and violative of Article 14 of the Constitution of India must be determined in each case and no general rule applicable to all cases can safely be laid. Practical assessment of the operation of the law in the particular circumstances is necessary. In the instant case, Section 118 of the Act regarding religious bequests of all testators, viz. of Hindus, Muhammadans, Parsis, Jaina, etc. are not subjected to this procedure and the bequests by Christians alone is singled out. Therefore, we hold that Section 118 of the Indian Succession Act regarding religious and charitable bequests is discriminatory and violative of Articles 14 and 15 of the Constitution of India and it is necessary that all testators who are similarly situated 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. Articles 25, 26(c) and 26(d) deal with the fundamental rights of freedom of conscience and free profession, practice and propagation of religion and owning and administering movable and immovable property by any religious denomination. Such rights can be regulated by secular law. It is not known as to how religious bequests can be regulated and the procedure prescribed for Christians alone and not for others.
45. On a careful consideration of the entire pleadings, arguments advanced by both sides and following the Full Bench decision of this Court and the other judgments of the Apex Court referred to above, we declare that Section 118 of the Indian Succession Act:
a) discriminates against a Christian vis-a-vis non-Christian;
b) discriminates against testamentary disposition by a Christian vis-a-vis non-testamentary disposition;
c) discriminates against religious and charitable use of property vis-a-vis all other uses including not so desirable purposes;
d) discriminates against a Christian who has a nephew, niece or nearest relative vis-a-vis a Chris-tiun who has no relative at all; and
e) discriminates against a Christian who dies within 12 months of execution of the will, of which he has no control.
We, therefore, declare that Section 118 of the Indian Succession Act is anomalous and anachronistic being violative of Articles 14,15,25 and 26 of the Constitution of India. Section 118 of the Indian Succession Act is therefore struck down as unconstitutional. There will be no order as to costs.