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Breaking Chains: Tribal Women and The Call for Equal Succession

Authored by Anisha Tripathi, a 2nd year student, pursuing BA LLB at National Law University Odisha


Breaking Chains: Tribal Women and The Call for Equal Succession
Representational Image (Taken from Flickr)

Introduction

In the grand tapestry of our Constitution, the promise of equality weaves a fragile thread. Yet, the poignant tale of tribal women's lost right to succession reveals a stark dissonance between written ideals and lived reality. Seventy years since our tryst with Independence, echoes of injustice linger as ancestral lands elude tribal women, a title sworn to them by our Constitution. Tribal women in India grapple with a historical injustice as tribal customary laws frequently strip them of the right to inherit ancestral property. This denial not only robs them of economic autonomy but also sustains gender disparities within these societies.


The recent judgment made by the apex court, however, emerges as a glimmer in the prevailing darkness, sending ripples through the tribal community, known for its hesitance to address the issue of survivorship rights for women. Emphasizing the constitutional right to equality enshrined in Articles 14 and 21, the Court asserted the unjustifiability of denying survivorship rights to female members of the Tribal community. The Court's call for a reevaluation by the Central Government and potential amendments to the Hindu Succession Act (HSA) 1956 , ensuring its applicability to Scheduled Tribe members, underscores the urgency of rectifying the longstanding gender inequities within tribal communities.


Tribal Women's Inheritance Status

HSA 1956 grants Hindu women equal rights in self-acquired property. Previously confined to male heirs under the Mitakshara law, this provision expanded to include coparcenary property following the Hindu Succession (Amendment) Act, 2005. The Act, under Section 2(2), explicitly excludes individuals belonging to Scheduled Tribes.


It states[1] that, “Notwithstanding anything contained in Sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of Clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.”


This exclusion has been officially communicated under Article 342 of the Constitution of India. Both customary tribal law and state-level regulations like the Chotanagpur Tenancy Act, 1908, persist in discriminating against women concerning succession matters. The Act, on being challenged in the case of Madhu Kishwar & Ors. Versus State of Bihar & Ors, 1996 , was defended by the court. The Court found it undesirable to declare tribal customs in violation of Articles 14, 15 and 21 A of the Constitution, fearing an influx of similar claims aligning personal laws with the HMA 1956 and the Indian Succession Act, 1925. However, it recognized that the right to livelihood is integral to the right to life, acknowledging that widows would become destitute post their husbands' death, losing their livelihood as the land reverted to male descendants. The Court ruled that female relatives of the last male tenant could hold the land as long as they depended on it for their livelihood.


Nevertheless, the dissenting minority judgment of Justice K Ramaswamy offers a more compelling perspective and could serve as a guideline for advancing gender equality among tribal communities. The law encompasses customs or usages that are ancient, well-established, and carry the force of law. Therefore, tribal laws prohibiting inheritance to daughters fall within this legal framework. Post the Constitution's enactment, pre-constitutional laws inconsistent with fundamental rights are deemed void.


Reason Behind Such Exclusion

Tribal communities under Schedule V and Schedule VI adhere to customary laws for inheritance, marriage, and succession. The Indian Succession Act, 1925, and the HSA 1956, primarily address Christians and Hindus, respectively, sidelining most tribes. While STs aren't explicitly excluded from the Indian Succession Act, Section 3 grants states the power to exclude them. The Act aligns with Christian succession but falls short for tribals. A categorical exclusion under the HSA and a covert exemption from the Indian Succession Act leave non-identifying STs relying on their customs.


Preserving ancestral customs justifies STs' exemption from succession Acts, perpetuating a patriarchal structure that favors male lineage. ST women lack equal entitlement, evident in the All-India Report on Agricultural Census 2010-2011, with ST men holding 88.7% of the surveyed land, leaving ST women with a mere 11.3%. Encouragingly, the 2015-2016 Agricultural report shows progress, with the percentage of ST women owning agricultural land increasing to 16.87%. Yet, this growth falls short. Given the pivotal roles ST women play in various agricultural activities, there is a compelling case for ensuring they receive a more equitable share of the land, acknowledging their significant contributions and fostering gender-inclusive practices in land ownership.


While senior citizens, at 5.2% of the ST population, often dictate family property through wills, their low literacy obstructs comprehension, sometimes leaving dependents to rely on intestate succession and customs.


Issues With Such Exclusion

The initial concern revolves around whether an oral declaration or tribal ritual can supersede the national law. In cases where tribal inheritance rules are documented, there's often no explicit prohibition against women inheriting or transferring ancestral property. The burden of disproving an ST[2]  woman's right to ancestral property rests on the party asserting that tribal customs don't mandate it. They must establish that customary law overrides the constitution.


The second issue questions whether local customary laws should prevail over Hindu customs, as many tribal community members follow Hindu rituals. The Himachal High Court emphasized adherence to the HSA 1956, rather than potentially discriminatory local customs. The Hindu Succession Amendment Act (2005) empowered women to inherit ancestral land. Therefore, HAS 1956, should take precedence over local customary laws for both Hinduized tribal communities and partially/sufficiently Hinduized tribes.


The third issue concerns the caste of a child born to a Scheduled Caste (SC)/ST woman in an inter-caste marriage. A 2012 Supreme Court ruling clarified that there's no mandated rule for the child to adopt the father's caste. The child can follow the mother's caste, even if she faces discrimination. An ST certificate is granted irrespective of the parents' inter-caste marriage.


The Test of ‘Hinduisation’

The development of inheritance rights for tribal women relies on judicial interventions, notably the 'test of Hinduisation' introduced by the Chhattisgarh High Court . This legal innovation requires tribal women to meet specific criteria, demonstrating the abandonment of customary laws and the adoption of Hindu practices to access the Hindu Succession Act's provisions. The court acknowledges the phenomenon of Hinduization among tribals, stating that if it can be sufficiently proven that a tribal is Hinduized, they may fall under the HSA 1956 or other laws applicable to Hindus, rather than tribal customary law. Court decisions, such as Budhu Majhi and Anr v. Dukhan Majhi and Ors (1955), have upheld this principle, with the determination of Hinduization based on the community's customary practices, religious rituals, marriage traditions, cremation practices, and social norms. However, the situation is clearer for Christian converts. In Kartick Oraon v. David Munzi, the court affirmed that the Schedule Tribe status remains intact for inheritance purposes even after conversion to Christianity. The status of children born to a tribal mother and a non-tribal father was addressed in a recent case unrelated to property. The court ruled that such children could be granted ST status if "the community of the tribals to which the woman belongs has recognized such matrimonial alliance and accepts the couple into their fold".  


The current legal framework and judicial approaches to tribal women's rights present a dual perspective. The State is hesitant to recognize tribal women's survivorship rights due to concerns about kinship, tribal culture, and entrenched gender norms. Conversely, the judiciary seeks to include Scheduled Tribes (STs) within HSA. Both approaches face practical challenges. The State's inclination to maintain the status quo may harm Adivasi women's legitimate interests, while the judicial approach risks undermining tribal identity protected by the Fifth and Sixth Schedules of the Constitution. Striking a balance between gender equality and cultural heritage requires careful deliberation and legal reforms by the Union Law Ministry,[3]  considering the unique circumstances and aspirations of tribal communities.


How About Creating A Distinct Tribal Succession Act ?

Adivasis identify themselves outside the categories of Hindus or Christians. In the 2011 Census, over 50 lakh tribal individuals indicated their religion as 'Sarna,' a category that did not exist. They follow unique ways of life, religious practices, customs, and culture, worshiping nature rather than idols. With no varna system or equivalent inequality, they seek a separate religion to govern their personal laws. Historically, Adivasis were counted separately from Hindus until the 1951 Census when they were categorized as Hindu/Christian or Others. Despite efforts by the Jharkhand government to recognize the Sarna religion in the 2021 Census, no action has been taken by the Union Government.

While codifying a separate tribal religion may enhance the legitimacy of tribal customary laws, it should be approached cautiously. The process must involve consultation with the community and stakeholders, ensuring alignment with constitutional values. Balancing equity, universal rights, and cultural sensitivities is crucial for improving the status of tribal women in India.


Conclusion

In the dance of progress, the rhythm of equality must not falter. As we stand on the precipice of reform, the need to dismantle the gender bias ingrained in succession laws for tribal women becomes a poignant call to action. Granting women coparcenary rights was a delayed triumph; however, allowing gender bias to seep into this overdue feat would be a disheartening stumble. The courts, as agents of change, have unfurled the sails of transformation, casting off patriarchal shackles. Now, at  this juncture, our legislative script must compose a new melody – one that harmonizes with the symphony of equality. To perpetuate inequality, draped in the guise of outdated customs, in a world where the anthem of equality resounds loudest, is a lamentable contradiction. Let our actions be a sonnet of progress, not an elegy for justice delayed.

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