9/11/23, 5:52 PM Case Note John Vallamattom and another v.

Union of India (Writ Petition (civil) 242 of 1997)

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Case Note John Vallamattom and another v. Union

of India (Writ Petition (civil) 242 of 1997)
Aug 1, 2023 Constitution

Bhaskar Vishwajeet and Rishi Sandill

: 3 Minutes

I. Introduction:

In our constitutional jurisprudence, one of the most ambitious projects is to harmonize

interactions between the state and the wide gamut of groups across society. The challenge with
having diverse practices and customs is to do the basic minimum of providing for recognition. An
array of laws and the Constitution have woven a web of provisions ensuring judicial outreach for
many. Among these, however, the most convoluted push has been for the implementation of
Article 44 of the Constitution.

Article 44 formulates a uniform civil code (here on the UCC) for the citizens of India. This entails
a uniform application of personal laws for all, irrespective of their affinities and associations. The
judiciary has often hailed the need for expediting the implementation of Article 44 when faced
with personal law contentions. But for all the issues it endeavours to solve, the UCC, in
substance, is underdeveloped. Its basis is what's key to solving what it is addressing. That is to
say, the instrument has been used in a meandering way to secure multiple interests in many
ways, but an organized uniform approach.

The aim of this note is not to argue whether the UCC is required or not. That would be a
qualitative assessment that we do not possess the authority to conduct. We aim to show that
there are moments in constitutional history where ideas of family, community and personal laws
have presented complex challenges. While there have been resolutions, the UCC has often been
used as a suggestive device to reprimand the legislature for its inadequacy to provide for such
contests. The case at hand is one of many used to seemingly strengthen the case for the UCC.

II. Facts of the case - Substantive:

Father John Vallmattom (Petitioner 1) was a Roman Catholic Priest from the Kothamangalam
diocese in Kerala. Petitioner 2 was also a Christian. They submitted an opposition to the Indian
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Succession Act, 1925 (the 'Act'), particularly Section 118 of the Act1. They contended that the
provision prevented members of the Christian community from making over property for
religious or charitable purposes and was thereby discriminatory.

Section 118 was a derivative of ancient British legislation. Starting with the Charitable Uses Act,
1735, a gift by a will for charitable purposes was void by default. This act was replaced by the
Mortmain and Charitable Uses Act of 1888 (Mortmain). Mortmain required charitable
corporations to acquire royal licenses for any transfer or bequest of property, lest their property
would be forfeited to the Crown. In a bid to prevent unconscionable decision-making during
one's final moments, the Act sanctioned that such transfer of property for charitable purposes
had to be within twelve months, witnessed by two people and deposited with the Chancery
within six months before the testator's demise. This acted as the basal logic for Section 118.

It must be noted, however, that Mortmain did create exemptions for certain transfers of
immovable property. Transfers to public museums, parks etc. were exempted from the
restrictions. Section 118 of the Act diverges from its source material (Mortmain) at this point.
The Indian Succession Act did not develop these exemptions into the transfer of property for
charitable uses. As a result, there was a blanket restriction on all forms of testamentary
disposition of property for religious and charitable purposes.

Section 118 stipulated conditions for the transfer of property and stated that no person having a
niece or a nephew or a nearer relative shall bequeath any property for religious or charitable
uses except by:

a. A will executed not less than twelve months before his death
b. Deposited within six months from its execution at a lawful place for storing wills of living
persons.
c. Such will must remain deposited until the death of the testator.

The quantum of the property being bequeathed is irrelevant to the scheme of this section. If the
property is being made over for religious or charitable purposes, it qualifies under the section.
Who a 'near relative' is can be decided by referring to Section 28 and the First Schedule of the
Act. The added "any near relative" includes father, mother, daughter, son, or an adopted son as
well. Briefly put, if a Christian testator had any of such relatives, they would have to execute a
will twelve months before their death and deposit it within six months from such execution.
Failure to do so would void the transfer for such purposes.

Cause of Action (C/A): The petitioners began their claim with the idea of redundancy, stating
Mortmain's subsequent replacement by the Charities Act of 1960, that Section 118 of the Act
had survived in Indian jurisprudence was arbitrary. They argued that as pre-constitutional
legislation, the 'doctrine of eclipse'2 required that the provision must be tested for consonance
with Part III of the Indian Constitution3. Furthermore, their submission noted that Section 118
was in contravention of Articles 14 and 15 of the Constitution4 as it discriminated against
Christians. This, per their submission, was due to Section 58 of the Act, which exempted
provisions of testamentary succession in the Act (Chapter VI) to apply to Hindus,

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Muhammadans, Jains, Buddhists, and Sikhs5. Lastly, they posited that contributing to religious
and charitable purposes was an integral part of the Christian faith and the restriction in Section
118 was trespassing over that aspect, thereby violating Articles 25 and 26 of the Constitution.

Procedural history: Father John Vallamattom and another petitioner a writ petition under
Article 32 of the Indian Constitution. They availed their right to constitutional remedy, thereby
appealing to the Supreme Court for supposed violations of their fundamental rights as enshrined
in Part III of the Constitution.

III. Issues:

1. Whether the rule in question, that is Section 118 (impugned rule) of the Indian Succession
Act, 1925, violated Article 14 of the Indian Constitution?
2. Whether the impugned rule attracted Article 15 of the Constitution?
3. Whether the discrimination of Christians under the impugned rule was a violation of their
fundamental rights as enshrined in Articles 25 and 26 of the Constitution?

IV. Rules:

General provisions concerning Testamentary Succession under Part VI of the Indian

Succession Act, 1925 (not directly contested in the present case):

a. Section 59: Every person not a minor and of sound mind may dispose of his property by a
will.
b. Section 51: Any will which is caused by any coercion or deceit, indicating a negation of the
agency of the testator is void.
c. Section 63: Unprivileged wills shall be signed by the testator and attested by two witnesses
who witness the testator signing the will.

*It was in the context of these rules that the petitioners had approached the Court. The Court based its
ratio on the same to create equal protection measures6.

V. Answer and application:

1. Affirmed. The court held that the impugned rule was unreasonable and, as a result, was
inapposite to Article 14 of the Constitution. CJI Khare stated that although the restriction
imposed could be upheld if the person it applies to is part of a distinctive class, distinct from
others by an intelligible differentia7 which has some connection with the object achieved by
the section, this section cannot apply here as Indian Christians do not satisfy these
necessary conditions. They were similarly situated to the others who were exempted from
the impugned rule.
2. Not applicable. With regards to Article 15, the majority of the bench agreed that the
provision does not attract article 15, the reason being that the right conferred by Article
15(1) is an individual right and cannot be applied to a group or class of people. Therefore, a
statute (Section 118) which restricts the right of a class of citizens in such a manner does

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not attract article 15(1). Article 15 had personal application and could not be applied to an
entire class of citizens.
3. Flowing from the personal application jurisprudence of Article 15, the Court stated that the
only concern in this regard was whether the impugned rule violated the Christian
community's right to profess, practice and propagate their belief. Under Article 25,
professing a belief (or its aspect) in public is permitted as it is a conscious expression (Article
198). The threshold for this section, however, was that of an integral practice. While the
court observed that a religious or charitable making over of gifts could be a holy act within a
belief system, the same could not be attributed as an integral practice of said belief. To that
end, the petitioners could not support the claim that Christianity mandated such disposition
as integral to its core. The Court, therefore, disallowed the application of Articles 25 and 26
on this ground.

VI. Conclusion:

The case at hand harmonized the subject matter of the Indian Succession Act concerning
Christian practices in India. While stating the impugned rule as manifest arbitrary legislation, the
court also restated the threshold for integral practices, adding to the compendium of precedents
on the issue. The result was a striking down of the impugned rule as a violation of Article 14
fundamental rights.

VII. Socio-Legal Analysis:

Calling India, a land of diversity would be an understatement. Enormity is a better adjective. As a

land of enormity, the nation and the State exist among enormous considerations and
proportions. Such a description gives credence to the theory of the transformative constitution.
As a means to institute order and systematisation in an illiterate society, the constitution became
an entity itself, taking on a living role. In the context of this case, this living role of the
constitution became the task of harmonisation. The harmonization of interests to be specific.

As a culture we are vast. To that end, various personal laws were provided to cater to multiple
groups. The Hindu Code Bills were a precursor to the codification of Hindu laws in independent
India. In such a manner every religion or sect got some legal instrument to ask for concessions
from the State and its agencies. A little later, however, a realisation came about, that such
personal laws were too divisive. This may be considered the inflexion point beyond which calls
for a uniform civil code became stronger.

This is why the case of John Vallamattom and similar such contestations are peculiar in that the
supplemented observation of the need for a UCC across the nation is not well-founded both in
law as well as in society. The doctrine of harmonious construction, which requires a balance
between two contesting statutes, would suggest that the propounded logic of a UCC is at odds
with existing personal laws and their sanction. The status quo rests on personal laws for multiple
factions. Their function is contingent on two factors, first, how well the legal scheme has been
able to account for customary practices and tradition and second, whether generations of people
from such factions accept the judicial entities to decide upon such instruments (acceptance). A

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UCC would entail the removal of customary practices as a means or a part of marriages,
inheritance processes, succession etc. Such removal of recognition of said practices may not sit
well with a community(s). It may come across as undermining their belief. In that sense, the
argument for a UCC weakens, for it would be a far greater task to address communitarian
contestations than iron out inequities by uniformity.

In that vein, it may be wise to follow what Ambedkar had thought of when discussing the UCC
during the constitutional debates. It was his understanding that matters concerning personal
practices and customs must not be provided for in a monolithic manner. That is to say, the
practice of any facet of a belief or faith must always be left to the choice of the individual.
Therefore, he suggested optionality when it came to such concerns. A contemporary
manifestation of this understanding is the Special Marriage Act, 1954 under which a person may
be adjudicated by common laws rather than personal laws. On careful reading, John
Vallamattom will come across as yet another attempt to use the open-ended suggestion of a
UCC to hurriedly arrive at a settlement or compromise.

The impugned provision was only applicable to Christians, not to any other community in India
and the first hurdle it presented to Christians was that any man having a niece, nephew or any
closer relative would be unable to bequeath his property to any religious or charitable use unless
his will was executed not less than 12 months before his death, and deposited no later than 6
months after his death at a prescribed place for the protection of wills of living persons. This
effectively meant that a Christian who wished to bequeath his property for some religious or
charitable purpose had to have a fresh will executed every 12 months if he did not pass away
during that window of time. Lakshmanan, J. brings out the harsh nature of this procedure by
citing the privileged positions of Muslims and Hindus with regards to bequeathing their property
for charitable or religious uses in his judgement:

He points out that Muslims can validly bequeath a third of their property when there are heirs;
and that the founding of a temple or a charitable act is considered a religious duty.

Khare, CJI. further points out that it is surprising that the provision does not protect the
testator's wife (if present) against gifts of a non-religious or charitable nature. The protection
which should be provided to the wife of the testator's interests is superseded by the rights of the
nephew or niece. Further, he states that it is the restriction placed upon a testator who lives
beyond the statutory period are "unreasonable and arbitrary", stating that the period of duration
of life of the testator has no bearing on the contents of the will itself and that there can be no
possible reason to limit a Christian testator in such a manner.

We must note that the right to dispose of property by will is a fundamental aspect of the very
concept of ownership of property. Such a right is conferred upon everyone regardless of caste,
creed, or religion by the Indian Succession Act itself. In the context of the general prescriptions
for the transfer of property provided by the Act (see Rules), Section 118 seems more restrictive
and discriminatory than ever.

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By referring to Article 449 before concluding with his opinion, the Chief Justice essentially
affirmed his belief that if Article 44 is read with Article 13 of the Constitution, it would serve to
erase inequalities based on caste, religion, sex, etc. in the social context of our great nation. CJI
Khare also states that a Uniform Civil Code would "help the cause of national integration by
removing the contradictions based on ideologies."

There have been several instances previously where the Supreme Court has outlined the need
for India to adopt a Uniform Civil Code.

In 1985, in Mohd. Ahmed Khan v. Shah Bano Begum and Ors10, the Court ruled that "a uniform civil
code will help the cause of national integration by removing disparate loyalties to laws which
have conflicting ideologies", effectively directing the Government to enact such a code.

Ten years later, in the case of Sarla Mudgal v. Union of India11, a two-judge bench on the Supreme
Court observed that India suffered by having a void in personal laws governing the people and
directed the Ministry of Law and Justice to examine the steps taken by the Government towards
implementing a Uniform Civil Code in India.

In Sarla Mudgal, there was a void of law which left the Court without a law to guide them through,
hamstringing the Court's ability to provide swift justice. In the case of John Vallamattom, we see
a different issue but a similar result. In this case, there was no void of law, however, the very law
which governed the Christians was void in itself. This void law stood as an impediment to justice
in the country.

The reason the Supreme Court has pushed in the past for a Uniform Civil Code may be due to the
dynamic nature of society. When we look at the intention behind a particular section (here,
Section 118 of the Indian Succession Act), we cannot look at it one-dimensionally. The Court also
considers subsequent events which have taken place since. The development of 'overlapping
jurisprudence'12, that is the overlapping of fundamental rights in certain spheres has reinforced
defences for violations. The idea that fundamental rights are not independent (as individual
variables) but correlated rights is why the Court approaches this case with the outlook that the
world is undergoing a "sea of change", and it takes the fact that Section 118 is unconstitutional
into consideration while it pushes for a Uniform Civil Code. It should be noted that this call is not
political. It is born out of a judicial sense of responsibility as is evident from the mention of
international conventions as well. The 174th Law Commission has observed that in such cases,
the United Nations Covenant on Civil and Political Rights and similar international legislation
have acted as external 'touchstones' for domestic jurisprudence to derive or rally support from.
The secular commitment of such international legislation contributes to the idea of uniformity as
envisioned by the UCC.

It has been argued that CJI Khare's opinion is his alone and should not be regarded as the view of
the Court. However, it should be noted that Justice Sinha and Justice Lakhsmanan both stated
that they were in agreement with the opinion of CJI Khare, reinforcing his opinion as an opinion
of the entire bench.

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But this still does not address the major concern, what is the substantive content of the UCC?
What form of construction does it ensue? Uniformity cannot be a blanket guiding principle for it
would allow for a broad import of protections and concessions as the stream flows. An
organisation of the principle however would help, for it would then mean that there has been a
judicial attempt at constructing a middle ground or provisions which are free from personal
implications of custom and tradition. For a civil formula, however, the judiciary and personal law
jurisprudence must steer clear of the common belief that the UCC may be used to critique a
personal law's inadequacy. The UCC is not going to do anything meaningful until its language is
that of secularism, a commitment of the people of India.

1
Indian Succession Act, 1925, c 6, s 118.

2 INDIA CONST. art. 13, cl. 1.

3
INDIA CONST. part 3.

4
INDIA CONST. art. 14 & 15.

5
Indian Succession Act, 1925, s 58.

6
INDIA CONST. art. 14.

7 INDIA CONST. art. 14.

8
INDIA CONST. art. 19.

9
INDIA CONST. art. 44.

10
Mohammed Ahmed Khan v. Shah Bano Begum an Ors., 1985 (2) SCC 556

11
Sarla Mudgal v. Union of India, 1995 SCC (3) 635

12 Maneka Gandhi v. Union of India, (1978) 1 SCC 248

Bhaskar Vishwajeet and Rishi Sandill

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