Uniform Succession and Inheritance: Writ Petition SummaryUniform Succession and Inheritance
Uniform Succession: Petition Summary
In September 2020, a petition was filed at the Supreme Court to create a Uniform Succession and Inheritance Law which governs how property is transferred after the death of the owner.
Presently, family laws related to the age of marriage, divorce, maintenance and alimony, adoption and guardianship and succession and inheritance are governed by a framework of ‘personal laws’ based on religious sources and customary practices. So, different religions have different rules for these matters. Ashwini Kumar Upadhyay, an advocate and BJP politician has filed five petitions challenging the application of different rules in these five areas and argues for a Uniform Civil Code to be created to replace ‘personal laws.’
In succession and inheritance law; Hindus, Jains, Buddhists and Sikhs are governed by the Hindu Succession Act, 1956; Muslims are governed by the Muslim Personal Law (Shariat) Application Act, 1937; and Christians, Parsis and Jews are governed by the Indian Succession Act, 1925. The petition illustrates the salient differences between these personal laws using the table set out below:
The petition claims that the differences between these laws violate the equality guarantee and are often irrational. For example, despite large families no longer being the norm, the Hindu Succession Act lists 16 heirs who will receive the property of a Hindu male who has not written a will.
The Relief Sought
Upadhyay requests the Court to either:
- Direct the Union to take steps to remove anomalies in the law for succession and inheritance; or
- Frame gender and religion neutral guidelines for succession and inheritance after declaring that the current laws violate the rights to equality and life; or
- Direct the Law Commission to prepare a report on uniform grounds of succession and inheritance.
The Right to Equality
The petition argues that gender justice and gender equality are part of the fundamental rights under the Constitution. Specifically, Article 14 provides for the right to equality and Article 15 prohibits discrimination on the basis of sex and religion, among other things.
The Right to Life
The petition also argues that the dignity of women is a part of the right to life under Article 21. It asserts that succession and inheritance directly affects ‘life, liberty and dignity’ of women.
The petition concludes that by applying different standards to women and across religions, personal law violates the right to be perceived as equal and the right to life.
Need for the Uniform Civil Code
The petition relies on seven Supreme Court judgments referring to the UCC. However, the reliance is partial and selective. For example, in Sarla Mudgal v Union of India (1995), it correctly cites Sahai J to emphasise that the need for a UCC ‘cannot be doubted’. Notably, it avoids a reference to Sahai J’s observation that this first requires a favourable ‘social climate’.
The petition relies on Article 44 which calls on the State to endeavour to implement a UCC but does not clarify how a court must enforce a Directive Principle of State Policy.
Violates India’s International Obligations
In 1979, the UN General Assembly adopted The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). India is a signatory to this treaty, and is obligated to follow it under international law. Article 16(1)(a) of CEDAW specifically requires States to prevent discrimination in matters relating to inheritance and succession.
The petition cites Vishakha, where the Court interpreted the Indian Constitution to include some CEDAW principles and values, to urge the Court to create a UCC. UCC’s from the Philippines, Canada and the State of Goa are marshalled to emphasize the need for a gender-just civil code that complies with international law.