Attitude of ‘Hindus' and 'Other Religious' Communities towards Uniform Civil Code

(By Anam Abrol, Lecturer, Department of Institute of Correspondence Education, University of Jammu, Jammu.)

I. Introduction

In India, the mandate of Art.44 (Tahir Mahmood, 'Muslim Personal Law -Role of the State in the Sub-Continent, 126 (1977)) of the Indian Constitution has been fully supported by the majority community and they want that it should be carried out as early as possible. However, no opinion poll on this matter has ever been conducted. The opinion is based on what has been written or said by some Hindu intellectuals and on the silence of the Hindu masses. Among the educated enlightened Hindus who have entered into controversy on the implementation of Art.44, there are two groups. One section, failing to appreciate the attitudes of Muslims and need to remove their apprehensions in this regard, insist on the immediate enactment of a Common Civil Code without any delay. But there are others who are fully alive to the nature and depth of Muslim feelings and have, therefore, adopted an extremely (P.B. Gajendragadkar, Secularism and the Constitution of India, 126 (1971)) cautious approach.

II. Uniform Civil Code and the Constituent Assembly:

In 1947, the idea of a Uniform Civil Code was mooted in the Constituent Assembly. The sub-Committee on Fundamental Rights had included Uniform Civil Code (W.C.C.) as one of the Directive Principle of State Policy. Clause 39 of the Draft Directive Principles of State read "The State shall endeavour to secure for all the citizens a Uniform Civil Code". Debating the Draft the sub committee on Fundamental Rights decided to recommend that clause 39 should be drafted to make it clear that while a Uniform Civil Code for all citizens was highly desirable, its application should be made on an entirely voluntary basis. Three members of the Sub-Committee recorded their minutes of dissent in clear and ringing words. They were: Shri Minoo Masani, Raj Kumari, Amrit Kaur and Smt. Hansa Mehta (We are not satisfied with the acceptance of a U.C.C. as an ultimate social objective set out in clause 39 as determined by the majority of the sub-Committee. One of the factor that has kept India back from advancing to nationhood has been the existence of the Personal Laws based on religion which keep the nation divided into water-tight compartments in many aspects of life. We are of the view that a U.C.C. should be guaranteed to the Indian people within a period of five to ten years in the same manner as the right to free and compulsory, primary education has been guaranteed by clause 23 within ten years. We, therefore, suggest that the Advisory Committee might transfer the clause regarding a U.C.C. from Part II to Part 7 after making suitable modifications in it. (1) Minoo Masani (2) Hansa Mehta (3) Amrit Kaur).

When the provision for a U.C.C. was debated in the Constituent Assembly, Art.36, (as clause 39 was renumbered) was strongly opposed even though it was only amongst the Directive Principle of State Policy, by members representing the Muslim Community. Shri. Mohammed Ismail Sahib, Shri. Pocker Bahadur Sahib, Shri. Mahmoob Ali Sahib, Baig Sahib Bahadur, all from Madras; Shri. Naziruddin Ahamed from West Bengal and Shri. Hussain Imam from Bihar pleaded for amendments that would allow a community to keep its personal law. Shri. Mahmood Ali Baigh Sahib wanted a categorical proviso that nothing in this article shall effect the personal laws of citizens. ("Constituent Assembly Debates (C.A.D.) Vol.VIII). Other amendments suggested were : "provided that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law." (Mohammed Ismail Sahib, Ibid. 540). "Provided that the Personal Law of any community which has been guaranteed by the State shall not be changed except with the previous approval of the community ascertained in such a manner that the Union Legislature may determine by law. (Nazirudin Ahmed. Ibid. P.541 also see Appendix for the transcript of Debate) The members proposing amendments argued variously that they were speaking on behalf of not only Muslims but other communities as well as; that this provision would run contradictory to Art. 19 which guaranteed freedom of religion; that European countries for example, the Serbo-Croatian empire had guaranteed freedom in matters of personal laws. It was even argued that India was too vast a country and had attained very unequal levels of progress indifferent parts of it for the entire country to be brought under one law. It is worth noting that of three members of the sub-committee who wanted U.C.C. to be a justiciable; fundamental right, Shri. Minoo Masani was a parsi, Raj Kumari Amrit Kaur was Christian from the royal House of Patiala and Smt. Hansa Mehta was a Hindu. Shri. K.M. Munshi (Bombay general) pointed out that Art.19 permitted legislation covering secular activities. In Islamic countries, like Turkey and Egypt, the presence of minorities did not prevent the enactment of a Civil Code. Moreover the Shariat Act, 1937 sought to enforce the Shariat upon the Khejas and Cutchi memons who had till then followed the Hindu Laws of Succession. Shri. Munshi demanded "where were the rights of the minority then"? When you want to consolidate a community, Shri. Munshi said, we have to think of the benefits that may accrue to the whole community. As to Europe, anyone who went to a European country has to abide by the laws of that country. Mr. Munshi felt that a U.C.C. was essential if we wanted a unified and secular country. (Dr.Vasudha Dhagamwar, 'Towards Uniform Civil Code, in Dr. N.R. Madhava Menon (ed.) National Convention on Uniform Civil Code for All Indians, 3 at 5 (1986)).

K.M. Munshi argued on the following lines: (Constituent Assembly Debates (CAD.) Vol.VIII at 547-548).

1. Even in the absence of Art.35 it would be lawful for Parliament to enact a Uniform Civil Code, since the article guaranteeing religious freedom gave to the State power to regulate secular activities associated with religion.

2. In some Muslims countries, e.g. Turkey, and Egypt, Personal laws of religious minorities were not protected;

3. Certain communities among Muslims e.g. Khojas and Memons did not want to follow the Shariat; but they were made to do so under the Shariat Act, 1937.

4. European countries had Uniform Civil Laws applied even to minorities.

5. Religion should be divorced from personal law. The Hindu Code Bill did not confirm in its provisions to the precepts of Manu and Yajnavalkya.

6. Personal laws discriminated between person and person on the basis of sex, which was not permitted by the Constitution; and

7. People should outgrow the notion given by the British that personal law was part of religion.

S.C. Majumdar, K.M. Munshi, Alladi Krishaswamy Ayyar and Dr. Ambedkar opposed the desired amendments and insisted on the adoption of Art.35 by the Assembly without any exemption of personal laws from the purview of the future Civil Code. Opposing Mahboob Ali Beg, M. Ananthasayanam Ayyangar said that marriage in Islam was a contract and could therefore, be regulated by the State. (Id. at 543). Dr. Ambedkar also opposed the idea of amendments proposed to Art.35 (The present Article 44 of the Constitution of India) and said that if India could have Uniform laws of Crimes contract, property, trade and commerce, it could have uniform laws of marriage and succession as well. Dr. Ambedkar assumed that the future Parliament might enact a Uniform Civil Code. Eventually the Constituent Assembly rejected all the amendments and adopted Art. 35 (now Art.44) directing the State to "endeavour to secure" a Uniform Civil Code (Constituent Assembly Debates (C.A.D.) Vol. VIII at 552).

Dr. Ambedkar again stressed that the Muslim members had probably read rather too much into Art.35 which merely proposes that the State shall endeavour to secure a Civil Code for the citizens of the country. lt does not say that after the Code is framed, the state shall enforce it upon all citizens merely because they are citizens. It is perfectly possible that no future Parliament may make a provision by way of making a beginning that the Code shall apply to those who make a declaration that they are prepared to be bound by it, so that in the initial stage, the application of the Code may be purely voluntary. Parliament may feel the ground by some such method. This is not a novel method. It was adopted in the Shariat Act of 1937 when it was applied to territories other than the North-West Frontier Province. The law said that here is a Shariat law which should be applied to Musulmans provided a Musalman who wanted that he should be bound by the Shariat Act should go to an offer of the state, make a declaration that he is willing to be bound by it, and after he has made that declaration that the law will bind him and its successors. It would be perfectly possible for Parliament to introduce a provision of that sort; so that the fear which my friends have expressed here will be altogether nullified. I, therefore, submit that there is not substance in these amendments. (Constituent Assembly Debates (CAD.) Vol. VIII at 551-552). There the matter rested, Art.35 was carried without any amendments, as it stood. It was later renumbered Art.44 "The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.

Meanwhile, there was an attempt to have one Code for Hindus which would recognise women's rights. In 1948 the Hindu Code Bill was introduced and debated on the floor of the House. The Bill was based on the recommendations of the Hindu Law Committee set up in 1941 under the Chairmanship of B.N. Rau. The Bill failed to reach the final stages of enactment and in September 1951 was dropped by the Govt. for lack of sufficient support and concerted opposition from orthodox Hindus. (The same body which had, sitting as the Constituent Assembly, adopted the equal rights clauses in the Constitution without debate, blocked the Bill which attempted to provide some equality to women, See Nandita Haksar, 'Campaign for a Uniform Code'. Indian Express, May 16, 1984).

III. Hindus and Uniform Civil Code after Independence:

The ex-chairman of the Law Commission, Mr. P.B. Gajendragadkar says:

In any event, the non-implementation of the provision contained in Art.44 amounts

to a grave failure of Indian democracy and the sooner we take suitable action in that behalf the better. (P.B. Gajendragadkar, Secularism and the Constitution of India. 126 (1971).

While speaking under the auspices of the Gujarat University in Ahmedabad, February, 1973, he asserted that the Muslims Personal Law was not in keeping with the democratic traditions of the country and, therefore, changes must be made in it. It would be in the interest of the development of secularism in India to have a Uniform Civil Code, if necessary by imposing the same on the people. (H.A. Gani, Muslim Political Issues and National Integration. 110-111(1978).

In January, 1972, while welcoming the delegates to the Indian Law Institute's seminar on "Islamic Personal Law in Modern India", Justice Hegde, then a sitting judge of the Supreme Court, observed:

Religion oriented personal laws were a concept of medieval times.... A society which is compartmentalized by its laws can hardly become a homogeneous unit....In the constituent assembly, vested interests Hindu as well as Muslims - had bitterly opposed the enactment of Muslim Art.44. But the founding fathers of the Constitution, in national interest, refused to bow to their pressure. There is no justification to adopt a different attitude now. (K.S. Hegde, "Welcome Address" in Tahir Mahmood (ed.) Islamic Law in Modern India, 3-4 (1973).

Justice Hegde stressed that the Government should not hesitate to enact a Uniform Civil Code even in the face of possible opposition from some quarters. (Supra note 15). Mr. M.K. Tope, ex-Vice Chancellor of Bombay University, while addressing a meeting organised by Nagpur University Library Hall in Sept., 1972, made a vigorous plan for evolving a Uniform Civil Code. (H.A. Gani Muslim Political Issues and National Integration 110-111 1978). Dr. S.R. Bhatt contends that if national unity is considered as the supreme ideal, it demands a Uniform pattern of behaviour for the whole nation making the submersion of different civil code into a Uniform Code necessary. A similar view has been expressed by Justice Y.V. Chandrachood when he said that "one law of marriage for all would be an important step towards national integration." (H.A. Gani Muslim Political Issues and National Integration at 88)(1978).

Dr. P.B. Mukharji has examined the importance of the concept of codification in a very rich context by laying stress on the suggestion that Article 44 of the Constitution for Uniform Civil Code be transferred from the Directive Principles of State Policy to the Fundamental Right in Part III of the Constitution with suitable variations if the Article is to achieve its purpose. (P.B. Mukerji, "Uniform Civil Code,"in Narmada Khodie (ed.) Readings in Uniform Civil Code. 1 at 9 (1975). Dr. U.C. Sarkar while examining historical retrospect of the proposed code, stressed that uniformities in personal law systems perse are the pre-requisites of a Uniform Civil Code for India. (V.C.Sarkar, "Uniform Civil Code for India" in Narmada Khodie (ed.) Readings in Uniform Civil Code, 217 to 221 (1975).

Some champions of mandate of Article 44 like Balraj, Madhok seem to advocate that the present personal laws of the Hindus should be imposed on every community by simply calling the Hindu Code as the Common Civil Code. They suggested that the present Hindu law, since it is not based on scriptures, should be accepted by non-Hindus and should be renamed the common Civil Code. (Balraj, "Common Civil Code", Secular Democracy (Urdu) (13 May, 1972) the suggestion of Mr. Madhok however, bristles with difficulties, Even if we accept that the Hindu law is no longer based upon scriptures, still it cannot be accepted as being secular and it is unlikely that other communities will accept it. As it is, many Hindus too want further secularisation and rationalization of the present law. Besides, it is essential that Muslims must be made to appreciate the fact that the Uniform Civil Code is not another name for the Hindu Code Bill. But it will be an ideal amalgamation of the personal laws of all communities i.e., Hindu, Muslims, Christian, Sikh, Parsi etc.

In a seminar on "Islamic Personal Law in Modern India", in January, 1972, Justice V.R. Krishna Iyer, warned the advocates and supporters of a Common Civil Code in the following words:

Equally important are the means as the end. We must seek to convince the conscience and convert the sense of the Indian Common Wealth of communities, by sure educative and legislative steps to accept for the secular life of the people a single family code. This is the modus operandi for delicate law making in a democratic polity affecting the sensitive social underside of minority groups...............Since first things must be first, let us tackle the job of modernizing the Islamic law first, preserving its genius and great principles but approximating the law to the general system and eventually enriching the latter in many respects. (V.R. Krishna Iyer, "Reform of the Muslim Personal Law in India, in Tahir Mahmood (ed.) Islamic Law In Modern India 17 at 17-18 (1972).

In another article on the advisability of carrying out the mandate of Article 44, Justice Krishna Iyer said: "Hurried remedies, enthusiasts and chauvinists, will aggravate the malady; for in the socio-political field one wrong step forward in two regrettable steps backward and a policy of principled compromise not of doctrinaire or sectarian rigidity; moving up in zig-zags, may be, is the right approach. (His Article in Weekly Round Table, New Delhi 25 March 1973 at 11.

Some Hindu leaders have openly opposed the implementation of Article 44 and expressed their preference for the retention of various religion - oriented laws. Among them prominent are Guru Golwalker of the R.S.S. and the Swami Kripatriji of Santham Dharam. Giving an interview to the daily Motherland on August 21,1972, the late Guru Golwalker said:

"It is not that I object to a Uniform Civil code as such. But at the same time it must be borne in mind that something cannot become desirable only because it is mentioned in the Constitution. Further, our Constitution itself is a hotech-potch of the foreign constitutions. It has not been formulated in the light of Indian experiences." Swami Kripatriji went a step further, while addressing a public meeting at Varanasi in September 1972 he said that "interference" with the marriage customs of any community was "not appropriate" and added that those Hindus who were not "faithful" to the Dharm-Shastras as well as those Muslims who were not "faithful" to the Quran could not be faithful to the Constitution either.

Iv. Attitude of Various other Religious Communities Like Jews, Christians etc. Towards Uniform Civil Code:

The religious minorities other than Muslims, namely, Christians, Parsis and Jews, have not raised at least any noticeable voice against the mandate of Article 44. (Tahir Mahmood, 'On Securing A Uniform Civil Code, in Narmada Khodie (ed.) Readings In Uniform Civil Code 173 at 176 (1975). They have not spoken either against or in favour of the mandate. They seem to have adopted a policy of "wait and watch". (Tahir Mahmood 'On Securing a Uniform Civil Code, in Narmada Khodie (ed.), Readings In Uniform Civil Code at 177) The apprehensions are that these sections of the society may have certain reservations to the idea of a Uniform Civil Code replacing their respective Personal Laws. An attempt made in recent years to modernize the Christian law was strongly opposed by the Bishops. The Parsi law is based on the tenets of the Zorastrain religion. (P.K. Grani,'Personal Law of the Parsis of India' in J.N.D. Anderson fed.) Family Law in Asia And Africa 299 (1968). As for the Jews, there is no perceptible evidence to gauge their reaction. But it may be noted that the Jews as a community lay strong emphasis upon religion in organising their personal relationship. Most probably they will be hurt and feel resentment against keeping of their Personal Law in favour of a Common Secular Family Code. Opposition of Uniform Civil Code by these minorities has not, however, been as vocal and strong as that by the Muslims.

Sikhs, Jains, Lingayats and other similar off-shoots of Hinduism have not assumed a sufficiently strong separate identity to be considered as significant minorities having views other than those of Hindus in matters of family law. (For all practical purposes Hindus and these sects are the same, intermarriage, intredining and other forms of social communication are common. This is a fact, incontrovertible in spite of sporadic squabbles between the two sides which sometimes reach academic circles). These are in fact various denominations established within the fold of Hinduism with more or less similar social philosophy. Professor Derrett pointed out the practical propositions, meant for strengthening the hands of a sculptor who might be engaged in earning out a family code for India. He justifies the enactment of a Uniform Civil Code by asserting that Civil Code is not confined to Art.44 of the Constitution. It is based on the widely felt need to establish the personal laws, which had a historical origin; and on the experience which India, like Ceylon and various African States, undergoes when it sees general law expanding, filling gaps, abolishing distinctions, and thus, by its own momentum taking over, so far as it may, from the personal laws. (J.D.M. Derrett, 'The Indian Civil Code or Code of Family Law :Practical Propositions' in Narmada Khodie (ed.) Readings in Uniform Civil Code, 21 (1975)). Professor Garg maintain that unification process should be confined to marriage laws which form the core of family laws. Grounds for divorce must be made uniform. He further suggests that in view of the fact that India is politically one and governed under one Constitution there is no justification for having different family laws for different communities, (J.D.M. Derrett: "The Indian Civil Code or Code of Family Law: Practical Propositions in Narmada Khodie (ed.) Readings in Uniform Civil Code 21 (1975)).

The other minorities have by and large, been maintaining a silence on the subject, in part this is because they feel they are too small to matter and in any case as the Muslims will prevent the Uniform Civil Code from becoming a reality there is hardly any point in wasting energy over it. The one exception to this situation have been the Young Women's Christian Association and the joint women's programme. Ms Jyotsna Chatterjee of J.W.P. and Ms. Radha Kumari and Ms. Sadhana Ganguly of Young Women's Christian Association were interviewed. (Vasudha Dhagamwar. Towards the Uniform Civil Code. 49 (1989)). These two bodies have taken considerable trouble to organize debates and discussions on this topic both within the Christian community and with the non-Christian members of the Y.W.C.A. They have passed several resolution demanding reform of personal law as well as a Uniform Civil Code. I was told that at the national convention of the Young Women's Christian Association held in 1982 and 1986 a solution in favour of the Uniform Civil Code was passed, and that at the Regional v monthly meeting of Y.W.C.A. the idea is frequently debated. These respondents said that was why regional Y.W.C.A. has supported Christian women who challenged iniquitious propositions in their personal law. (For example, Indian Divorce Act Section 10 allows a man to demand divorce on the ground of simple adultery. The wife however must prove adultery with an aggrevating fait, like incest). Thus M/s Mary Roy (See Mary Roy v. State of Kerala (AIR 1986 S.C. 1011) where the Supreme Court held that by the enactment of Part B states (laws) of Act 1951, The Travancore Cochin Succession Act 1902 was repealed and the Indian Succession Act automatically became applicable to Christians from Travancore and Cochin) had support from the Kerala Regional Y.W.C.A when she challenged the Succession Act applicable to Syrian Christians.

The J.W.P. had been holding meeting and conventions with regard to the Uniform Civil Code since 1976. In 1982, after the communal riots against Christian Fishermen in Kanyakumari and against Harijan converts to Islam in Meenakshipuram, the J.W.P. began to think about the causility of communal riots (Vasudha Dhaganwar Towards the Uniform Civil Code (1989) at 50). They arrived at the conclusion that as the communal riots take place because different communities do not have the same status in law and the Uniform Civil Code will go a long way towards "disciplining the personal lives of all people and reduce communal tension." A national meeting on "Need for a Uniform Civil Code" was held in 1983. Its resolution in favour of Uniform Civil Code was sent to the Prime Minister.

J. W.P's spokes women said they had organised meetings with protestant church leaders. At these meetings reform in Christian personal law was suggested and in the last meeting it was resolved to work toward a Uniform Civil Code. The Catholics have reservation about divorce but divorce is already legally permitted to all Christians including Catholics under Indian Divorce Act. A good or devout Christian will not take recourse to this law, whether it is under the personal law or the Uniform Civil Code. But these Christian organisations are the exception to the rule. (Vasudha Dhaganwar To-wards the Uniform Civil Code (1989) at 50). Even the Young Men's Christian Association (Y.W.C. A) has not thought over the subject of a Uniform Civil Code.

But these Christian Organisations are the exception to the rule, not even when Muslims claim to be speaking on their behalf, thus allowing the subject to be seen as one of battle of wills between the Hindus all of whom want it and the Muslims all of whom do not. Both projections of the two major communities as we have seen are in correct. (Vasudha Dhagamwar Towards the Uniform Civil Code (1989) at 51).

Two Tear Drops

(M. Prabha, Advocate, Ernakulam)

Feelings and grief have no tongue to speak;

Language is but a feeble and futile vehicle of thought.

This I do know, yet I try.

Knowing full well, that a wing clipped bird cannot soar in the sky.

Like a pen in my trembling hand, which refuses to move.

I stare into the void before me, partially blinded by tears unshed.

Yester-evening, cursed day, at a heart-rending moment;

Someone told me "Sri. Vijayan is no more".

Startled was I and asked "Which, who, what Vijayan"?

He answered - "Oh, can greater tragedies happen"?.

I sank on a chair, my body arid senses benumbed,

I can't say when my senses surfaced to help me gather my thoughts.

The softly smiling face of my friend, brother is before my minds' eye.

Dignity personified, nobility chiselled to perfection;

Integrity in all its chastest contours;

Manliness mellowed by human grace.

Voice throbbing with the rhythm of affection and love;

A gentleman with a majestic mein;

The perfect incarnation of culture and probity;

O death! How could you be so callous, ruthless?.

How could you, so recklessly and cruelly snatch away;

The precious and unsullied life of such a lofty man;

We know, indeed death is the last syllable of life;

The inevitable, inescapable part of life.

Yet, when death like a famished vulture swoops down all on a sudden,

And carried away the life of one,

The World will stare aghast, grief-stricken and helpless;

And shedding torrential tears of agony and horror.

Philosophy becomes futile, it fails to assuage,

The pangs of the mortal and the inexorable law of nature;

Indeed, man came into the world all alone;

And leaves, quite alone, plunging those who are near and dear.

Into the very vortex of utter destitution.

What a dire devastating tragedy;

It is not life alone that ceases to exist;

But much more is lost to us.

His Greatness, his sterling qualities of heart and mind;

His learning, wisdom, scholarship and virtues all,

And the dazzling halo that he had created by his attainments;

Sages have advised 'grieve not, be brave, face the loss

Of men by fortitude' -- mere platitudes --

But we weep, realising the eternal truth;

That the life of man is meaningless, inscrutable,

Pathetic and miserable.

And one word more, let his memory --

Inspire us to march forward, emulating all his ideals;

Swerving not from the path of Dharma,

And Justice, truth and righteousness,

Before the altar of his sublime memory,

Two tear drops, heavy and hot, I shed.

A Wilful Difference

(Godson Thayyil, Advocate, Fort Cochin).

I am proud to be a member of a profession, legal and regal

The future and scope of legal profession, make me enthrall

Live for others and be their Saviour, income become limit-less

Professional satisfaction bring me pleasure, even though penny-less

Clients come with problems to solve

Shower their problems, on me, to resolve

Show their empty purse and happy they go

Solve theirs and forget mine, I have no other go

But my problem is to maintain an office with ease

Telephone charges and electricity bills, that department realize

Advocate clerk and office staff are paid promptly

But none there to pay me regularly and correctly

And my problem is to build-up and own a law-library

Price-hike of law books or any books cause me worry

Vehicle up-keep is indispensible for my hurried trips

Vehicular shuttling between courts cannot be a cheerful trip

And my problem is to adapt and adopt a foreign language

and custom with which to convince the judicial sage

Whims and fancies, moods and depression may influence discretion

But I cannot complain or cry over as there is ample provision.

And my problem is Denning and Cardozo fall into deaf ear

and so Salmond and Winfield, I never care and bother

Early disposal, any time and every time, bothers the bench

Voluminous evidence, if adduced, will enlarge their hunch

And my problem is I am wedded to a 'jealous Mistress'

And my earthy life and my ethernal wife are in distress

Morning and evening are time meant for clients engagement

In-between attend court and spare time for mind-engagement

And my problem is to swim in the ocean of law against its sway

Initial set-backs and dearth of income swing many away

And some prefer to sit in the bench than to stand at the bar

Divine work brings peace and status, while bar submerge in war

And my problem is my conscience and fear to tread over

Accident claims are for ambulance-chasers, who rush in an hour

Royal profession provides plenty of opportunities and scope

Perseverance and patience will pay in long run, I hope

Give to Ceasar and Give to God, Scripture says, So I believe

But income less my expenses, the net is far below

Tax-planning is not tabooed to medalist or any other payee

Footnote:

A reply to the "A Woeful Difference" in 1990 (1) KLT (Journal) 37.

S.54e :- Incometax Act, 1961 - Technical Lacunae and Injustice to Assessee

(By S.K. Thampi, B.A., LL.B., Advocate, Cochin-17)

Though many of the provisions of the Income tax Act are reliefs, the application of law for capital gains u/s. 54-E the beneficial application is not only a burden, but also a taxing problem itself. S.54-E was inserted by Finance Act, 1977 (No.2) and further amended by the Finance Acts of 1978,1979 and 1987, which says capital gains arising from the transfer of any capital asset are exempt from tax - only when the following conditions are satisfied - i.e., it should be a long term capital asset (held by the assessee for more than 36 months). This being the fact the C.B.D.T. is of view, the investment in specified asset has to be done within 6 months from the date of transfer. (Refer Circular No.359-10/5/83). It is here the legal melting pot cracks and injustice trickles down, and burns the tax payer - the willing - honest man. One can invest money anywhere only when one has it with him. But Income tax department are reluctant to take this fact, into consideration when the assessee receives any amount under land acquisition proceedings after exhaustive battle in Courts of Law.

This confusion is due to span of time, in period between the date of transfer and the actual receipt of amount. The benefit under S.54-E is given only if the amount is invested within six months from the date of transfer - which invariably cannot be done as the date of transfer and the actual date receipt are different. The Award amount usually reaches the beneficiary after lapse of 6 to or 7 years from the date of transfer. With this technical lacunae how can the tax payer be expected to invest the amount within 6 months from the date of transfer to have the benefit of tax exemption? Hence this denial of benefit u/s.54-E is certainly illegal and it violates the principle of natural justice. This technical lacunae and legal anomaly can certainly be solved if the principle high lighted in 1990 I.T.R. 379 is followed, which clearly say (though not retrospective in operation) that date of receipt shall be given its due importance than date of transfer.

Delay in Motor Accident Claims

(By Zachariah Koshy, Advocate, Kottayam)

The Honorable High Court is taking steps for the speedy disposal of motor accident claims and the Tribunals are being alerted periodically. In this context may I point out certain practical aspects.

On a representation made by the various Insurers, the Honorable High Court has directed to fix dates for each Insurance Company, so that their officers be present on those dates for settlement of the claims directly. On implementation of the said orders, it is painfully found that the presence of some Officers of some Companies stand in the way of settlement. This statement is made viz-a-viz our experience when the Advocate representing these companies used to co-operate for settlement of claims. Recently in a claim, 20% disability was certified by the Medical College, Kottayam. The Tribunal, after considering the age and monthly income, worked out a figure of Rs.62,000/- as compensation. In the mean time, when the limit of Rs.50,000/-was pointed out, the claimant agreed to settle his claim for Rs.50,000/-. But the Officer who was present was not prepared for any amount above Rs.25,000/-. Later on pressure the' Officer contacted his Regional Office, and enhanced his readiness to Rs.40,000/-. He further instructed the lawyer that in case the applicant does not agree for this, a petition be filed for referring the injured before a Medical Board, after challenging the disability certificate already issued by the Medical College. Accordingly the lawyer filed a petition for referring the applicant to a Medical Board, but the Tribunal rightly dismissed the application. Now the result is a written standing instruction is given to the lawyer by the Insurance Company to challenge all disability certificates and to refer all of them for obtaining certificates from the Medical Board. Officers like these when present appear much royal than the king and they defeat the very purpose for which they are being invited.

Another instance, a young widow aged 22 (with two children) was an applicant on the death of her husband, who was an abkari contractor earning Rs.2,000/- per month. After due deliberations the Tribunal arrived at a figure of Rs.1,60,000/-. Because of the limit, the Advocate for the applicants agreed for Rs.1,50,000/-. Immediately the Officer insisted that it should be inclusive of all interest. Though it was pointed out that interest is a right in case of delayed payment, the officer was not amenable and the poor widow with the Advocate had to return for being examined on a day after some days.

By the presence of these officers, we are forced to place the legitimate claim to the mercy of these officers who are really parties, instead of being decided judicially by the impartial Tribunal. In the circumstances, I feel that the practice of inviting Officers, particularly when their own Advocates are present before court, is doing more harm than good.

Another important aspect is escaping the attention of all concerned. There are lot of cases in which awards have been passed long, long ago. The insurance companies are not at all paying any attention for the deposit of the money awarded, particularly when these amounts are comparatively small - say below Rs.25,000/-probably because the company's loss by way of interest is insignificant compared to their gain otherwise in delaying all such petty amounts together making a substantial figure. For filing of applications, and for disposals of these applications, there are compelling forces, but there is no compelling force now for the proper deposit of the award amounts except the interest. In case the Insurance Companies are really bona fide, in their show of cooperation, let them deposit all the amounts now awarded, so that the victims may get at least the compensation at an early date. Action from the Honorable High Court on these aspects will be a blessing to the poor victims in motor accidents.