By John B Monteiro

Mangaluru, Sep 6: Ever since the untimely death of Arun Jaitley (b.28/12 1952) on August 24, 2019, the media is full of, besides the standard obituaries, personal accounts by his legal and political associates, including by his political opponents like Shashi Tharoor. Indian Christians should remember and thank him for rescuing them from the scourge of securing probate. This calls for a bit of background, including on advocate Clarence Pais who fronted the Christian community to secure this relief.

Clarence Pais, eminent veteran lawyer of Mangaluru, went beyond courts to secure relief for Christians. The high point of Clarence Pais’ career goes beyond what he scored in courts. It lies in what he achieved through Parliament in Delhi. Thereby hangs a heart-warming saga of altruism involving Arun Jaitley that needs to be recalled. But we must start at the beginning.

Arun Jaitley

Clarence’s lifetime achievement is centred round the amendment to the Indian Succession Act. Section 213 of the Act made it compulsory for Indian Christians to probate their Wills before they could be acted upon. Citing an example, Clarence says that if a Hindu dies, leaving assets under his Will to his widow and children, his Will does not require probate. That means that not only do his widow and children save about 10 to 15 per cent of the value of the assets they have inherited, but also that the Will can be acted upon the day following the death. Likewise, if a Muslim dies, his Will could be acted upon the day following his death, without his widow and children spending on account of probate duty and expenses.

In contrast, if a Christian died leaving a Will bequeathing a house and cash in a bank, the entire value of his assets was charged probate duty at the hands of his widow. Such duty and expenses totalled 10 to 15 per cent of the value of the estate. Besides, there was uncertainty and mental trauma in this discriminatory procedure. For instance, under the probate route, if there is any objection to the Will, the process of laying one’s hands on the willed assets could drag on for years.

Clarence Pais

According to Clarence, this glaring discrimination offended Articles 14 and 15 of the Indian Constitution and therefore he questioned the vires of the Indian Succession Act. Soli Sorabjee, who subsequently became the Attorney General of India, drafted and filed the writ petition. However, when it came up for hearing, the Court dismissed it. Clarence filed a review application in the Supreme Court and appeared in person before Justice Rajendra Babu and another. “It was the happiest day of my life, when I got the opportunity to argue before the judges of the Supreme Court,” Clarence recalled later. However, the happiness was short-lived as even his review petition was dismissed.

Undaunted by the failure, Clarence moved the then Prime Minister, Atal Bihari Vajpayee, through his childhood friend, George Fernandes, and the government moved a Bill in Parliament to amend the Indian Succession Act. Section 213 of the Indian Succession Act was amended and the Act of Parliament, Act 26 of 2002, became law on May 27, 2002.

“Our wrangling lawyers… are so litigious and busy here on earth, that I think they will plead their clients’ cases hereafter, some of them in hell,” wrote Robert Burton, English writer (1576 – 1640). Clarence also has been busy for his clients. But, he would not have to work for some of them in hell, because he has earned better reward by his altruistic work, which will benefit the 30-million-strong Indian Christian community – with critical help from Arun Jaitley.

In this process, Arun Jaitley had a critical role as Law minister in Vajpayee’s government and this story is best told by quoting from the biography of Clarence Pais titled ‘Dreamy Recollections’. After recounting his failure to get justice from the Supreme Court, Clarence says, “Undaunted by the failure and relying on the principle that when one door is shut, another opens, I decided to approach Parliament. Fortunately for me, I had a fairy godfather, my childhood friend George Fernandes, who was then Defence Minister in the cabinet of Atal Bihari Vajpayee, then Prime Minister of India...We gate-crashed into his house at No. 10 Krishna Menon Marg, New Delhi. Dear George, as a mark of support for my cause, phoned the then Law Minister, Arun Jaitley. Next day we called on him. At the meeting, I explained the case, whereupon he asked me only two questions:

“What have Indian Christians been doing for the last 200 years, only to wake up now for this relief which they rightly deserve? In case I, as Law Minister, agree to move for an amendment of the Indian Succession Act through Parliament, will I have the support of the Indian clergy?”

To this I replied: “It is never too late, and the Indian clergy is backing me. What is more, the support for this cause has also come from George Fernandes, and his support should be taken as support of the Christians of India.”

My reply drew a smile from Arun Jaitley and an assurance that he would support our cause. A few days later, George Fernandes phoned me late at night to tell me that he had just returned from a cabinet meeting chaired by the Prime Minister Atal Bihari Vajpayee, and that he had signed the Bill, which would be introduced in Parliament.

When the Bill came before Parliament, I am happy to say, the entire Parliament voted in favour of the Bill and it became law as Act No 26 of 2002. The important point in favour of Christians was that the amendment covered not only future Wills but also the unprobated past Wills of Christians.”