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1997 DIGILAW 272 (HP)

GANGA DEVI v. STATE OF HIMACHAL PRADESH

1997-07-10

M.SRINIVASAN, P.K.PALLI

body1997
JUDGMENT M. Srinivasan C.J.—In this writ petition, two prayers are made. The first prayer is to issue a mandamus directing respondents No. 1 and 3 to notify and make applicable the provisions of Hindu Succession Act in ) Tribal areas of Himachal Pradesh in consonance with the provisions off Article 255 (1) read with 5th Schedule of the Constitution of India Such at prayer cannot be granted by a Court of law. It is a matter, which has to be taken up for consideration by the concerned Government and the Legislature. In fact in paragraph 29 of the reply, it is stated that the petitioner could approach the 1st respondent so that the latter could refer the matter to the 3rd respondent for consideration. In the circumstances, this prayer is rejected. 2. Learned Counsel for the petitioner draws our attention to the judgment of the Supreme Court in C Masilamani Mudaliar and others v. Idol of Shri Swaminathaswami Swaminathaswami Thirukoil and others, (1996) 8 SCC 525. He places reliance on the following passage of the judgment : "18. Human rights are derived from the dignity and worth inherent in the human person Human rights and fundamental freedom have been reiterated by the universal declaration of Human Rights Democracy, Development and respect for human rights and fundamental freedoms are interdependent and have mutual reinforcement. The human rights for women, including girl child are, therefore, inalienable, integral and indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth, culturally’ socially and economically All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights. 19. Vienna Declaration on the elimination of all forms of discrimination against women for short "CEDAW" was ratified by the UNO on 18-12-1979. The Government of India who was an active participant to CEDAW ratified it on 19-6-1993 and acceded to CEDAW on 8-8-1993 with reservation on Articles 5 (e). 16 (1), 16 (2) and 29 of CEDAW. 19. Vienna Declaration on the elimination of all forms of discrimination against women for short "CEDAW" was ratified by the UNO on 18-12-1979. The Government of India who was an active participant to CEDAW ratified it on 19-6-1993 and acceded to CEDAW on 8-8-1993 with reservation on Articles 5 (e). 16 (1), 16 (2) and 29 of CEDAW. The preamble of CEDAW reiterates that discrimination against women violates the principles of equality of rights and respect for human dignity ; is aa obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country ; hampers the growth of the personality from society and family and makes more difficult for the full development of potentialities of women in the service of their countries and of humanity. Poverty of women is a handicap. Establishment of a new international economic order based on equality and justice will contribute significantly towards the promotion of equality between men and women etc. Article 1 defines discrimination against women to mean -any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose on impairing or nullifying the recognised enjoyment or exercise by women, irrespective of their martial status, on a basis of equality of men and women, all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. Article 2 (b) enjoins the State parties while condemning discrimination against women in all its forms, to pursue, by appropriate mares, without delay, elimination of discrimination against women by adopting appropriate legislative and other measures including sanctions where appropriate, prohibiting all discriminations against women to take all appropriate measures including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discriminations against women Clause C enjoins to ensure legal protection of the rights of women on equal basis with men through constituted national tribunals and other public institutions against any act of discrimination to provide effective protection to women. Article 3 enjoins state parties that it shall take, in all fields, in particular, in the political, social, economic and cultural fields, all appropriate measures including legislation to ensure full development and advancement of women for the purpose of guaranteeing them the exercise and enjoyment of human Tights and fundamental freedoms on the basis of equality with men. Article 3 enjoins state parties that it shall take, in all fields, in particular, in the political, social, economic and cultural fields, all appropriate measures including legislation to ensure full development and advancement of women for the purpose of guaranteeing them the exercise and enjoyment of human Tights and fundamental freedoms on the basis of equality with men. Article 13 states that the State parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, in particular......Article 14 laid emphasis to eliminate discrimination on the problems faced by rural women so as to enable them to play in the economic survival of their families including their work in the non monetized sectors of the economy and shall take ... all appropriate measure…..; Participation in and benefit from rural development and, in particular, shall ensure to such women the right to participate in the development programme to organise self groups and co-operatives to obtain equal access to economic opportunities through employment or self employment etc. Article 15 (2) enjoins to accord to women in equality with men before the law, in particular, to administer property.............. 20. Parliament made the protection of Human Rights Act, 1993. Section 2 (b) defines human rights to mean the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution, embodied in the international conventions and enforceable by Courts in India’. Thereby the principles embodied in CEDAW and the concomitant right to development became integral parts of the Indian Constitution and the Human Rights Act and became enforceable. Section 12 of the Protection of Human Rights Act charges the Commission with duty for proper implementation as well as prevention of violation of the human rights and fundamental freedoms. 21. Article 5 (a) of CEDAW to which the Government of India expressed reservation, does not stand in its way and in fact Article 2 (f) denudes its effect and enjoins to implement Article 2 (f) read with its obligation undertaken under Articles 3, 14 and 15 of the Convention vis-a-vis Articles I, 3, 6 and 8 of the Convention of Right to Development. The directive principles and fundamental rights though provided the matrix for development of human personality and elimination of discrimination, these Conventions add urgency and teeth for immediate implementation. The directive principles and fundamental rights though provided the matrix for development of human personality and elimination of discrimination, these Conventions add urgency and teeth for immediate implementation. It is, therefore, imperative of the State to eliminate obstacles, prohibit all gender-based discriminations as mandated by Articles 14 and 15 of the Constitution of India By operation of Article 2 (f) and other related Articles of CEDAW, the State should take all appropriate measures including legislation to modify or abolish gender based discrimination in the existing laws, regulations, customs and practices which constitute discrimination against women.” 3. The observations of the Supreme Court in that judgment cannot be torn out of the context The Court had to deal with a case where they had to decide whether the estate of the person concerned became absolute under section 14 (1) of the Hindu Succession Act or whether section 14 (2) of the Act would apply. While holding that section 14 (4) was applicable to the case the Court observed that the rights of women have to be recognised and it was only with that view in mind the Legislature introduced section 14 (1) into the Act, While doing so, the Court made reference to the Protection of Human Rights Act, 1993. The ruling has no relevance whatever in the present case. It is now well settled that it is not for the Court to direct the Government to introduce or implement the provisions of a particular Act in any area. 4. Learned Counsel draws our attention to the judgment of the Supreme Court in Aeltemesh Rein, Advocate, Supreme Court of India v. Union of India and others, (1988) SCC 34. That was a case, which arose under the Advocates Act, Section 30 of the Advocates Act was not enforced inspite of the fact that a period of 27 years had already elapsed. The Supreme Court pointed out that the enforcement of section 30 even after a period of 27 years of the passing of the Act was wholly unjustified and though the Court cannot issue writ in the nature of mandamus directing the Central Government to bring section 30 into force, it can issue such a writ to the Government to consider within a reasonable time whether time for enforcing the provision has arrived or not The ruling has no application to the present case. That cannot be used to say that this Court can issue direction to extend the provisions of the Hindu Succession Act to the tribal areas, as prayed for by the petitioner. 5. The second prayer of the petitioner is to quash Annexure PJ, which is an order passed by the Financial Commissioner. The Financial Commissioner has only set aside the orders of the Revenue Officer below and remanded the case to the Assistant Collector find grade, Moorang for orders afresh after affording an opportunity of being heard to all the interested parties. The contention of the learned Counsel is that the Financial Commissioner could not have made an observation that the Hindu Succession Act not being applicable to the area, the will stated to have been executed by Smt Labung Dolma was not valid. There is no merit in this contention. Admittedly, the Act is not applicable as such and as per the tribal law, the will is not valid Hence, there is no error in the order of the Financial Commissioner and the observation to that effect is only a factual situation. 6. It is then contended that the Financial Commissioner ought to have himself decided the question whether the review should be granted or not and he should not have remanded the matter There is no merit in this contention also The Financial Commissioner having given an opportunity to all the parties to put forward their respective cases to show whether the review should be granted it is a matter to be considered by the concerned official. There is no error in the order passed by the Financial Commissioner. 7. In the result, there is no merit in the writ petition and it is dismissed. There will be no order as to costs. C.M.P. No. 571 of 1997: This application is ordered, as prayed for. Petition dismissed.