Varun Chablani and Alok Nayak write about the constitutional validity of Section 21 of the Hindu Succession Act, 1956.
Abstract
Section 21 of the Hindu Succession Act, 1956 resolves disputes in those cases where members of the same family perish in a common calamity in circumstances rendering it uncertain which of them survived the other or others. It provides a rule of artificial presumption when question arises as to priority in time of the death of any person or persons. According to this presumption the younger will be deemed to have survived the elder. In this paper the author challenges the constitutional validity of this section on the pretext of being manifestly arbitrary and hence violating Article 14 of the Indian Constitution. The author proposes that a better way to interpret and presume who would survive whom, even if it is by a split second, would be to classify on the basis on fitness. The present doctrine behind this provision also fails the test of basic principle of evolutionary biology i.e. ‘survival of the fittest’ as proposed by Charles Darwin. Furthermore, the author shows that with abysmal standards of mental and physical health amongst the youth in the present time, it becomes imperative for us to think again whether the presumption behind the provision still holds contemporary relevance. Present interpretation of this section seems quite illogical so author attempts to provide an alternative interpretation of the provision so as to make it constitutionally sound and workable for the present society.