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Succession, gender equality and customary tribal laws

By Rakesh Shukla

The recent Hindu Succession Amendment Bill, making the daughter a member of the coparcenary, will make no difference to tribal women, since customary tribal laws continue to discriminate against women in the matter of succession

The Hindu Succession (Amendment) Bill 2004, passed unanimously by the Lok Sabha, making the daughter a member of the coparcenary, is a significant move towards gender equality in the matter of succession among Hindus. However, customary tribal law as well as state-level enactments like the Chotanagpur Tenancy Act, 1908, continue to discriminate against women in the matter of succession.

As far back as 1982, Madhu Kishwar (editor of the magazine Manushi), Sonamuni and Muki Dui (the widow and married daughter respectively of Muki Banguma from Lonjo village, Singhbhum, Jharkhand) and members of the Ho tribe, challenged Sections 7, 8 and 76 of the Chotanagpur Tenancy Act as violative of the right to equality and the right to life. Juliana Lakra, an Oraon Christian tribal woman from the Chotanagpur area, also challenged these provisions through a writ petition in the apex court, in 1986. The two petitions raised the common issue of parity between female and male tribal members in the matter of intestate succession, and were heard together. Both petitions pertained to tribes (the Ho and the Oraon) in the state of Bihar, although customary laws excluding tribal women from inheritance of land or property are also found among tribals in other states.

The provisions challenged clearly specify that only descendants in the male line of the original founders of the village who reclaimed land from the jungle are to be considered raiyats with khunt-katti rights, ie, raiyats in occupation or having subsisting title to the land. Similarly, only male heirs and descendants in the male line of a Mundari, who has acquired a right to hold jungle land for the purpose of bringing portions of it under cultivation, are to be considered Mundari khunt-kattidar, having possession or subsisting title to the land. Section 76 declares that custom, usage and customary rights that are not inconsistent with the Act shall not be affected by the legislation. The case came up for hearing in 1986. The state of Bihar took the stand that it would take steps to amend the Act to remove discrimination, and the matter was adjourned.

In 1991, the state government informed the court that a state-level Tribal Advisory Board comprising the chief minister, cabinet ministers and legislators and parliamentarians representing tribal areas had been constituted to examine the desirability of amending the Act to give equal rights of inheritance to women. The board took the view that though tribal society was dominated by males, female members were not neglected. A female member has the right of usufruct in the property owned by her father till she is married, and in the property of her husband after marriage. However, she does not have any right to transfer her share to anybody. In case a widow dies issueless, the property will revert to the legal heirs of her late husband. The board felt that if the right of inheritance were granted to female descendants it would increase the threat of alienation of tribal land to non-tribals. It said giving female members the right to transfer would give rise to malpractices like dowry prevalent in non-tribal societies.

The majority judgment of the court refused to strike down the provisions as violative of the right to equality, stating that this would bring about chaos in the existing state of law. The court took the view that it was undesirable to declare the customs of tribal communities violative of the right to equality under Articles 14 and 15, and the right to life under Article 21 of the Constitution. It felt that this would lead to a plethora of similar claims to bring personal laws in line with the Hindu Succession Act and the Indian Succession Act. However, the judgment observed that it is well established that the right to livelihood is part of the right to life. Elaborating, the court observed that widows would become destitute after the death of their husbands and lose their livelihood, as the land would revert to the male descendants. This would be violative of their right to life. The court declared that female relatives of the last male tenant could hold the land as long as they remain dependent on it for their livelihood. The exclusive right of male succession in Sections 6 and 7 of the Act was held to remain in suspended animation so long as the right to livelihood of female descendants remains valid.

However, it is the dissenting minority judgment of K Ramaswamy that makes for more interesting reading and could be a pointer to moving towards greater gender equality among tribal communities.

The law includes custom or usage that is ancient, well-established and has the force of law. Thus, tribal laws that prohibit inheritance to daughters fall within the law. After the coming into force of the Constitution, pre-constitutional laws inconsistent with fundamental rights are to be considered void. Article 14 of the Constitution guarantees the fundamental right to equality. Article 15 (1) prohibits gender discrimination. Referring to the directive principles, Justice Ramaswamy points out that Article 39 (a) enjoins the state to ensure that men and women equally have adequate means of livelihood. Article 38 directs the state to promote the welfare of people (men and women alike) by securing a social order in which justice -- social, economic and political -- informs all institutions of national life.

International conventions and protocols are a valid source of law and can be taken into account by courts in our country while adjudicating upon issues raised before them. The minority judgment notes that the United Nations General Assembly adopted a declaration, on 4-12-1986, on 'The Right to Development', which was ratified by India. The declaration assures the right to development as an inalienable human right. It also enjoins the state to observe all human rights and fundamental freedoms without any discrimination as to race, sex, language or religion. A duty is also cast to take all necessary steps to realise the right to development and to ensure equality of opportunity and an active role for women in the development process. Human rights for women, including the girl-child, were declared to be an inalienable, integral and indivisible part of universal human rights.

Justice Ramaswamy points out that the Vienna Convention on Elimination of all forms of Discrimination Against Women (CEDAW) was ratified by the UN on 18-12-1979. The Government of India ratified and acceded to CEDAW in 1993. The convention reiterates that discrimination against women violates the right to equality and acts as an obstacle to the participation of women on equal terms with men in political, social, economic and cultural life. Discrimination has been defined as any distinction, exclusion or restriction made on the basis of sex which impairs or nullifies the exercise by women (irrespective of their marital status) on the basis of equality of men and women, all human rights and fundamental freedoms. Article 2 (b) of CEDAW enjoins the state to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women. Article 14 emphasises the elimination of discrimination faced by rural women. Article 15 (2) enjoins "to accord to women equality with men before law, in particular, to administer property...".

The Protection of Human Rights Act, 1993, defines human rights as "the right to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India". The principles embodied in CEDAW and the concomitant right to development thus become enforceable as part of Indian law. By operation of Article 2 (f) and related articles of CEDAW, the state is obligated to take appropriate measures including legislation and modification of the law to abolish gender-based discrimination in existing laws, customs and practices.

Article 21 of the Constitution reinforces the right to life. Life in its expanded meaning today includes all that gives meaning to a person's life including culture, heritage and tradition. Articles 51-A (h) and (j) enjoin a fundamental duty to develop scientific temper, humanism, inquiry and excellence in all spheres of individual and collective activity. The minority judgment notes that "property is one of the important endowments or natural assets to accord opportunity, source to develop personality, to be independent, right to equal status and dignity of a person".

The judgment observes that agriculture is the only source of livelihood for tribals, apart from the collection and sale of minor forest produce. It notes that land is the most important natural asset and an imperishable endowment from which tribals derive their sustenance, social status, permanent place of abode and work. The judgment holds that the reasons for denial of the right to succession to women, like the preservation of integrity of rural society, the unity of family life and the agnate theory of succession are irrelevant today.

Respective state laws throughout the country prohibit the sale of land in tribal areas to non-tribals. Clauses for the restoration of land to tribals, in case of transfers in violation of the law, have also been incorporated. Permission from the competent authority is an essential requirement for alienation. The minority judgment observes that if female heirs want to alienate their lands to non-tribals, these legislations would act as a check. In the event of any need for alienation by a tribal female, it would be subject to the operation of these laws and the first offer would be given to the brothers or agnates. In the event of their refusal or unwillingness, a sale would be made to other tribals. Sale by female tribals to non-tribals can only be made subject to permission from the competent authority under the law. Justice Ramaswamy took the view that in light of these provisions the apprehensions expressed by the state-level Tribal Advisory Board, that giving the right to succession to female heirs would lead to alienation of tribal lands to non-tribals, were unfounded.

The minority judgment held that the general principles consistent with justice, equity, fairness and good conscience contained in the Hindu Succession Act and the Indian Succession Act would also apply to tribal communities. It declared that women from scheduled tribes would succeed to the estate of their parents, brothers, husbands, as heirs by intestate succession and inherit the property with a share equal to that of a male heir with absolute rights. In case a tribal woman wants to alienate the land she would first offer it for sale to the brother or, in his absence, to any male lineal descendant of the family. In case the brother or lineal descendant is unwilling to purchase the land, either by mutual agreement or as per the price settled by the civil court, then the female tribal would be entitled to alienate the land to a non-tribal, subject to the permissions and provisions of the law applicable in the area.

It is the majority judgment upholding the exclusive right of male succession, but giving a limited right of livelihood to tribal women in the land, which presently governs inheritance in tribal communities. Yet history is replete with examples where the minority view has proven to be more enduring and in tune with moving towards a less discriminating society.

(Rakesh Shukla is a Supreme Court advocate)

InfoChange News & Features, November 2005