Gender Inequality In Tribal Succession Laws And Can An Amendment To Hindu Succession Act, 2005 Curb It?
India’s social fabric is characterized by unparalleled diversity, encompassing various faiths, communities, beliefs, and practices. However, certain customs and traditions have transformed into orthodox, discriminatory, and patriarchal rules that serve to suppress women. The enactment of the Constitution and subsequent social renaissance marked a shift towards gender equality. Still, some regions in India resist adopting these progressive changes, particularly regarding women’s rights. One marginalized community lacking legislation to safeguard women’s property rights is the tribal communities. It is essential to grant tribal women statutory rights to coparcenary and inheritance, but careful examination and selection of the appropriate legislative approach are crucial.
Due to sociocultural, political, geographic, and historical disadvantages, tribal women are at the junction of two of the most disadvantaged groups in Indian society, women and tribe. Tribal communities constitute a distinct socioeconomic class that is incredibly diverse while also enjoying the same level of constitutional protection and consequent isolation from the rest of society. The laws that control marriage, kinship, and inheritance vary from state to state in India, and tribal groups designated as scheduled are given special constitutional protection for their customary laws, which are mainly uncodified. This is done to preserve the unique cultural heritage of the tribes while also recognizing the historical injustices that they have often experienced at the hands of the majority.[i]
While examining these facts, a question might also arise should an amendment to Section 2 of the Hindu Succession Act, 1956, extending its applicability to Scheduled Tribes, or a new Tribal Succession Act should be enacted to address these concerns?
CONSTITUTIONAL PROVISIONS FOR ST WOMEN
Tribes are recognized as Scheduled Tribes under the Indian Constitution, which grants them certain privileges and protects their traditional ways of existence. The North-Eastern States of Assam, Meghalaya, Tripura, and Mizoram enjoy unique benefits under Schedule VI. Article 14 guarantees the fundamental right to equality and prohibits gender discrimination. Article 39(a) requires the state to ensure both men and women have sufficient means of subsistence, and Article 38 mandates the government to promote the welfare of people. The Panchayats Extension to Scheduled Areas (PESA) Act, passed by the Indian Parliament in 1996, extends panchayats to nine Schedule V states. It emphasizes community rights over natural resource use and strengthens tribal Gramme Sabhas.
The Forest Rights Act (FRA) in 2006 recognizes the priority rights of Scheduled Tribes to natural resources. However, the implementation of FRA has encountered administrative difficulties due to the concurrent authority of the Ministry of Tribal Affairs, the Ministry of Environment and Forests, and the Revenue Department.
The Hindu Succession Act does not apply to India’s Scheduled Tribes, but matrilineal populations received special protection. Local traditions that discriminate against women remain uncodified and subject to interpretations.[ii]
CUSTOMARY LAWS OF INHERITANCE FOR WOMEN
Most tribal groups in India are patrilineal, with succession and inheritance passing via the male line. Modernization has brought about changes to the legal system, which has affected them in both positive and negative ways. The question of women’s succession is at fault, with smaller shares than men, restrictive conditions on women’s legal entitlements, limitations on women’s ability to dispose of what they may inherit, continued use of non-codified customary law, and specific gender biases about agricultural land. The argument for a woman’s legal right to land is based on the notion of property as a source of security in a legal sense. The idea for the woman’s case is that she is socially marginalized and frequently a victim of homelessness or social discrimination. [iii]
Property rights of daughters
The form and nature of patriarchy in India vary depending on the economic and social factors that affect its growth. In Tripura, inheritance is patrilineal, with daughters receiving only gifts of land from their fathers. In Nagaland, inheritance is patrilineal, but the father may gift it to them. Sons of the Angami tribe in Nagaland inherit real estate, split into private and communal holdings. Immovable property is passed down to sons.
The Chakmas have a patrilineal system of inheritance, where the eldest son receives the best piece of land, and the youngest son inherits the house. Daughters only inherit things they have acquired. In Manipur’s Tangkhul tribe, the immovable property passes to the deceased person’s brothers in the absence of sons, while only movable property is given to the family’s women. Unmarried daughters are also taken into account in some patrilineal tribal groups.
Dimasa customary law states that sons inherit paternal property, girls inherit maternal property, and sons and daughters equally inherit common property. A widow can own property to support herself and any young children, but it becomes the son’s after she dies. Her living daughters typically inherit a widow’s personal belongings, and in the absence of any daughters, they are given to the clan’s female members. When a woman inherits land through her father, it passes to her son first and then to other male heirs.
Overall, these examples highlight the complex and diverse ways patriarchy operates within Indian society, with implications for gender equality and inheritance practices in case of daughters in Tribal Communities.
Property Rights of Wives and Widows
The Mizo Lushai system prohibits women and widows from inheriting the deceased man’s property directly, but if there is no other heir, a female offspring or widow may inherit. Inheritance and property ownership are patrilineal among the Arunachal tribes, with marriage establishing a hierarchy among women, with the elder partner having more privileges. If a deceased person’s partner and children can care for themselves, the widow must take care of them. The widow of a deceased spouse in the Dimasa of Assam is not entitled to any of the late husband’s property. In the hill Kharia of Odisha, a widow is permitted to oversee the estate and serve as the family’s leader until her death, divorce, or remarriage. The widow’s land rights deteriorate in three stages: equal rights to her late husband’s rights, requests over a plot for her maintenance, and all free access to land ignored. [iv]
These examples showcase the existence of patriarchal norms and practices that often disadvantage wives and widows in terms of inheritance rights and property ownership.
Property Rights of Separated Women
When tribal wives divorce or separate from their husbands, few have property rights; however, when a member of the Hill Miri tribe in Arunachal Pradesh requests a divorce, the wife is entitled to an equal division of the assets the pair have accumulated during their marriage. Women do not inherit paternal property among the Chang Naga, although male siblings fully support a divorced woman. The parents of a girl must return the wedding fee to the Dongria Kondh tribal people of Odisha if she gets a divorce due to her fault.
While some tribes in India exhibit more equitable approaches to property division and support for divorced women, others maintain traditions that may disadvantage women or impose financial obligations on their families.
GENDER INEQUALITY IN SUCCESSION LAWS OF TRIBAL COMMUNITIES
As we can see, in India, many tribal communities have their customs and traditions regarding the succession of property. And unfortunately, gender inequality is often a prevalent issue in these communities, where property is passed down through male successors, with women having little or no rights to inherit. This inequality has led to discrimination against women, who are denied their fair share of property and assets. Although the Indian government has introduced laws and policies aimed at promoting gender equality and protecting women’s rights, these laws are not consistently implemented effectively. To address gender inequality in tribal communities with respect to succession of property, there is a need for greater awareness and education on women’s rights, effective implementation and enforcement of laws and policies, and increased representation and participation of women in decision-making processes.
Scheduled Tribes were exempt from the Hindu Succession Act to preserve their customs governing the inheritance of ancestral property. However, there are two fallacies in this line of argument. First, the majority of tribal societies in India are patriarchal, meaning that males are regarded as legitimate successors while women are denied inheritance rights on ancestral property. This disparity was highlighted in the All-India Report on Agriculture Census 2015-16[v], which revealed that only 16.7 percent of ST women owned land, compared to 83.3 percent of ST men. The justification for exempting STs under section 2(2) is antithetical to the intent of the Act, which was enacted to remedy past discrimination against Hindu women under Mitakshara law. Second, more than 90% of the ST population resides in rural areas, so daughters of communities must receive the same proportion of land as male successors.
CAN AN AMENDMENT OF HINDU SUCESSION ACT TO BE APPLICABLE TO SCHEDULED TRIBES?
The Hindu Succession Act is not applicable to Scheduled Tribes, but the Court recognizes the concept of tribal Hinduization, which determines whether a tribal is sufficiently Hinduized to be governed by Hindu law in matters of succession or inheritance. In the case of Kartick Oraon v. David Munzi[vi], the Court ruled that a person’s Scheduled Tribe status for inheritance is not lost if they convert to Christianity.
Regarding the status of children born to a Native American mother and a non-Native American father, the Supreme Court ruled in the case of Society for Protection and Enforcement of Adivasi Rights and Others v. The State and Ors.[vii] that such children can be granted Scheduled Tribe status if the tribal community to which the woman belongs recognizes the matrimonial alliance and accepts the couple into its fold.
The Government of India, in the Eleventh Report of the Commissioner for Scheduled Castes and Scheduled Tribes [viii], stated that religion is irrelevant when it comes to Scheduled Tribe status, as a person continues to be considered a tribal even if they change their tribe. In Jharkhand, there is a growing demand for a ‘Sarna Dharm Code’ that would include a separate column labeled ‘Sarna’ under the religion category in the census. The demand for a ‘Sarna Dharm Code’ arises from the need to recognize and respect the distinct religious identity of the tribals in Jharkhand. The proposed ‘Sarna Dharm Code’ would involve the inclusion of a separate column labeled ‘Sarna’ under the religion category in the census. This indicates a desire among tribals to assert their distinct religious identity rather than being assimilated into the Hindu religion.
Considering these dynamics, it is argued that instead of attempting to assimilate tribals into the Hindu religion, it would be more appropriate to enact a separate Tribal Succession Act that takes into account the unique cultural and legal traditions of tribal communities. This would provide a more inclusive and equitable framework for addressing succession and inheritance matters among Scheduled Tribes.
It is thus sufficiently clear that it is necessary for legislature to take action with respect to providing property rights to tribal women. It is the need of the hour that tribal women are also given coparcenary and inheritance rights. The legislative framework needs to broaden and incorporate tribal women as well. This can only happen with the enactment of a separate tribal succession act. With its enactment, we can ensure that their practices are also incorporated and they are not subject to Hinduization of any kind. It shall be detrimental to their cultural heritage that they be subject to incorporation within the Hindu Succession Act. But recognition of tribal women’s property rights is also of utmost importance and needs to be given legislative sanction. Thus, a string legislative intent needs to be inculcated in order to bring about this unprecedented revolution within the Indian tribal society. An effective tribal succession act could prove to a milestone in achieving equality of tribal women and also in eradication of the century’s old discriminatory rules and practices. With this, we can undoubtedly achieve a harmonious society which imbibes the principles of justice, equity and rule of law.
s[i] https://ncwapps.nic.in/pdfreports/Customary%20Law.pdf, Tribal Customary laws and woman, an Introduction.
[iii] Bringing Land Rights Centre-Stage, Indu Agnihotri
[iv] Widows versus Daughters or Widows as Daughters? Property, Land, and Economic Security in Rural India, Bina Agrawal
[v] All-India Report on Agriculture Census 2015-16 https://agcensus.nic.in/document/agcen1516/ac_1516_report_final-220221.pdf
[vi] Kartik Oraon v. David Munzni, AIR 1964 Pat 201.
[vii] Society For Protection & Enforcement of Adivasi Right and Another V. State and Others., (2002) AIR Jhar 17.
[viii] NATIONAL COMMISSION FOR SCHEDULED TRIBES ELEVENTH REPORT (2015-16) https://ncst.nic.in/content/eleventh-annual-report