Time to recognise the right to survivorship of tribal women

Recently, in the case of Kamla Neti versus Special Land Acquisition Officer, the Supreme Court urged the Union Government to consider amending Section 2(2) of the Hindu Succession Act, which expressly exempts Scheduled Tribe members from the scope of the Act.

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What is the connection between the Hindu Succession Act, 1956 and the rights of tribal women?

THE Hindu Succession Act, 1956 was enacted to provide Hindu women an equal right in self-acquired property, which was earlier only limited to male heirs of the family under Mitakshara law. The same has now been extended to coparcenary property after the Hindu Succession (Amendment) Act, 2005.

The 1956 Act excludes Scheduled Tribes (STs) from its application. Section 2(2) of the Act states:

"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."

It means that the Act will not apply if the person dying intestate is a person belonging to a Scheduled Tribe (as notified under Article 342 of the Constitution).

It was pointed out last month by the Supreme Court in Kamla Neti (Dead) through LRs versus The Special Land Acquisition Officer & Ors. that, "When the daughter belonging to a non­-tribal is entitled to an equal share in the property of the father, there is no reason to deny such a right to the daughter of a person of the tribal community."

In this piece, we are going to discuss how excluding STs under Section 2(2) results in denial of the right to coparcenary property to tribal women.

Also read: Gender Discrimination and the Hindu Succession Act

Why is the right of succession denied to tribal women?

The court in Kamla Neti did not emphasise upon how the exemption leaves tribal women with no remedies to get the right of survival under intestate succession laws. Hence, we shall analyse the step-by-step effect of the exemption clause on the succession rights of tribal women.

I. STs inadvertently rely upon intestate succession due to lack of awareness and poor literacy

The Periodic Labour Force Survey report of 2019–20 observed that literacy rate among STs is above 70 per cent, which is a considerable improvement from 2011, when literacy rate among STs was 59 per cent. However, it must be noted that will and testamentary depositions to divide the property are made by elderly people of families who are sixty years or older in age. This population group consists of only 5.2 per cent of the total ST population (according to the 2011 Census).

A cross-sectional study of tribal communities of Telangana showed very low literacy rates (11 per cent among men and 0.87 per cent among women) among elderly people (aged 65 or above). If we were to extend the results of this study to other tribal communities, it leaves us with a situation where a majority of elderly ST population lacks even basic literacy to understand and write a language, which would make it very unlikely that they would be aware of their rights of devolving property upon their heirs through a will or testament.

High illiteracy and lack of awareness about property rights results in the majority of tribal elders dying without a proper will to divide their property among their heirs, which makes the ST community heavily dependent upon intestate succession laws and customs.

II. STs are excluded from intestate succession laws, making them rely solely upon customs

The two laws on intestate succession in India — the Indian Succession Act, 1925 and the Hindu Succession Act, 1956 — are inheritance laws dealing with intestate succession in case of Christians and Hindus, respectively.

STs are not explicitly exempted from application of the 1925 Act. However, state governments are bestowed with power under Section 3 of the Act to exclude any tribes or groups from its application. The Act codifies Christian law on succession, which does not adequately cover STs within it, and most tribes have already been excluded from application of the Act.

Specific exclusion of STs under the Hindu Succession Act along with implied exemption from the Indian Succession Act leaves STs who do not identify as Hindus or Christians to rely upon their own custom in the absence of any codified law on intestate succession.

III. Tribal customs emanate from patriarchal society depriving women of inheritance rights

The main reason for exemption of STs from the Hindu Succession Act was to preserve their own customs governing the succession of ancestral property. There are two fallacies in such reasoning.

Firstly, the majority of tribal societies in India are patriarchal in nature, that is, men are considered legitimate heirs and women are denied inheritance rights upon ancestral property. Hence, tribal women do not have equal entitlement to ancestral property vis-à-vis their male counterparts. This disparity of gender-based land holding was emphasised in the All India Report on Agriculture Census 2015-16 showing a mere holding of 16.7 percent with ST women in comparison to 83.3 percent with ST men.

The rationale behind exempting STs under section 2(2) runs contrary to the purpose of the Hindu Succession Act. The Act was enacted to cure historical discrimination against Hindu women under Mitakshara law, but the proviso under Section 2 prevents from extending to tribal women the equal right of succession to coparcenary property. The reason is to preserve the customs of STs governing the devolution of coparcenary property, which are largely discriminatory against women.

Secondly, the 2011 Census suggests that more than 90 per cent of ST population lives in rural areas. The primary source of income in rural areas comes from land holdings. Thus, it becomes imperative that an equal proportion of land is given to daughters of tribes on par with male heirs.

The two fallacies highlight how the legislature at the time ignored the repercussions of excluding STs from application of the Act on tribal women, as no comment or concern regarding Section 2(2) was highlighted in parliamentary debates regarding the Hindu Succession Bill, 1954.

Also read: Uniform principles of marriage, divorce, succession must be "common to all", says Delhi HC; calls for UCC

We will now analyse the evolution of succession rights for women to understand the history of succession laws in India, and how the same has evolved through time.

What is the jurisprudence on women's right to succession under the Hindu Succession Act?

The colonial past of India is when personal laws in the country first emerged. Hindu and Muslim personal laws were introduced to safeguard the domestic sphere by the British in the early 20th century. At the time of independence, the Constitution largely upheld these "Hindu" and "Mohammedan" laws. As a result, many of the personal laws that are in place today were influenced by native patriarchal customs. Succession under Hindu law was one such law which reflected the patriarchal customs of ancient times and upheld discrimination.

The Hindu Succession Act is the core legislation under Hindu law which specifically deals with the issue of succession of ancestral properties. The act introduced the survivorship rule, according to which, in a shared Hindu family, only the male lineal descendants of an ancestor may obtain the ancestral property. Because of its outright discriminatory nature, the Act was termed as patriarchal and heavily criticised by intellectuals and activists, and its validity was challenged on grounds that it violated the right to equality guaranteed under Articles 14 and 15 of the Constitution.

It took lawmakers almost 50 years to realise the necessity for a gender-neutral law to be passed. It was the demand of the time that a law must be passed that would give women equal access to ancestors' property without oppressing them.

The Hindu Succession (Amendment Act), 2005 was passed following five decades of debate over the right of succession of women on coparcenary property. This amendment gave women the same legal rights as males to be joint heirs and obtain coparcenary property. Any property that a Hindu inherits from their father, grandfather, or great-grandfather is referred to as coparcenary property in this context. Any person who is entitled to inherit their ancestors' property through birth is referred to as a coparcener.

The amendment provided substitution of a new section for Section 6 of the Hindu Succession Act. The new Section 6 of the amendment provided that: "(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son." (emphasis supplied)

Therefore, if a Hindu passes away after the commencement of the Hindu Succession (Amendment) Act, 2005, their interest in a joint Hindu family's property, which is subject to Mitakshara law, shall pass, by testamentary or intestate succession, under this Act rather than by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had occurred. As a result, the daughter is allotted the same share as is allotted to a son.

The amendment appeared to be more gender neutral. It was aimed at ending discrimination based on gender, and safeguarded women's fundamental right to equality in this situation. However, it created an ambiguity over whether women have coparcener rights in case the father is a coparcener who passed away before September 9, 2005 (this is the date the amendment came into force).

This issue concerning the interpretation of section 6 was finally settled by the Supreme Court in the case of Vineeta Sharma versus Rakesh Sharma (2020). The court observed that, "The conferral of right is by birth, and the rights are given in the same manner with incidents of coparceners as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener". (emphasis supplied)

A retroactive law is a law that does not apply retrospectively; rather it operates after the occurrence of an event in the past, or requirements that were derived from an antecedent event. The applicability of section 6 is based on birth, which is an antecedent event for the purpose of retroactive application; therefore, daughters enjoy the same rights to coparcenary property as sons, even if the father passed away before the 2005 amendment. Hence, daughters cannot be denied the advantages granted by the Act unless the partition property is affected by metes and bounds.

The rights of Hindu women have evolved from being denied ancestral right over property to being entitled to such right by being born in a Hindu Undivided Family. However, the rights of tribal women have remained static from the last six decades, and have evolved meagrely in comparison.

Also read: Why is the Supreme Court judgment of daughters as coparceners important?

What is the test of 'Hinduisation', and what are the problems associated with it?

Tribal women's inheritance rights are impeded by customs and have only evolved with judicial interventions. The right of succession is not directly available to tribal women; rather, it was provided by a judicial innovation of the Chhattisgarh High Court known as the 'test of Hinduisation' in the case of Butaki Bai versus Sukhbati (2014).

In this case, the court provided the requirements that need to be fulfilled for tribal women to avail the benefits of the Hindu Succession Act. It would have to be proved that "(i) the plaintiffs pleading they have abandoned their law of origin (customary law) has to plead and establish by leading appropriate legal evidence that they have given up their customary succession, and (ii) to establish further that they have become "Hindus out and out" or "sufficiently Hindus" so as to be governed by in matter of succession and inheritance by any school of Hindu law, and thereafter to prove."

The current patchwork of laws and judicial precedent reflects a dual approach — first, the hesitancy of the State in terms of recognising women's right of survivorship because it touches upon delicate issues of kinship, tribal culture and deeply ingrained gender norms; second, the efforts of the judiciary to include STs within the realm of the Hindu Succession Act. However, it does not solve the problem as indigenous tribes, especially women, are vulnerable to slip in through the cracks of multiple laws that govern their access to land, denying them the right of inheritance.

However, the test of 'Hinduisation' enunciated in Butaki Bai to prove a claim to succession only adds to the problem. Firstly, the test requires circumstantial proof that the culture and practices of the tribe conform to Hinduism. This denies the right of survivorship to women of those tribes who are not sufficiently Hinduised. Secondly, it places burden on women of the tribe to place substantial proof before the court to enforce any claim of succession. The obligation is ignorant of the fact that proofs of long-standing practice and norms in indigenous tribes are often absent as tribes live in enclosed vicinity of forests.

The identity of the tribe is inextricably linked to its culture and ancient practices. Hence, any tribal woman who would attempt to prove anything inconsistent with tribal practice could be faced with substantial opposition and possible renunciation from her community. Thus, the test of Hinduisation suffers from infirmities with regards to the social realities of women.

We propose and put forth that the 'Sarna Code' could be the possible remedy for addressing such gaps in law, including the right of inheritance to women.

Also read: Coparcenary Rights of Daughters: Solving the Obvious Jigsaw

Would a separate code for tribal communities be an ideal solution?

The distinct identity of the tribe is protected through the fifth and sixth schedules of the Constitution, which grant them specific privileges and ensure the protection of their traditional ways of life. Tribal residents of the northeastern states of Assam, Meghalaya, Tripura and Mizoram enjoy special privileges under the Sixth Schedule, which give the regions autonomy and permits the tribes to set their own boundaries in accordance with their traditional practices.

The tribal population in Jharkhand decreased from 38.3 per cent in 1931 to 26.02 per cent in 2011. However, it was also claimed that since they are not considered tribal in other states, tribal members who move for employment are not included in the Census. Therefore, a distinct code will assist in tracking their population across the nation.

The other major concern attached with this migration is that once these people migrate from their own habitat in search of livelihood and other opportunities, it becomes difficult for the courts also to determine to what extent they should be governed by their own customs, as a majority of their customs, traditions and practices are associated with tribal areas and land. Hence, it would be in their interest to create a separate code for the purpose of governing their personal laws.

Adivasis consider themselves neither Hindus nor Christians. This position may be clear from the fact that in the 2011 Census, more than 50 lakh tribal people nationwide indicated their religion as 'Sarna', which was not even a category.

They have their own way of life, religious practices and thought, customs and culture, differing from any other religion. Most of the tribes worship nature and not idols. There is neither a varna system in their society nor any equivalent sort of inequality. Therefore, they demand a separate religion for the purpose of governing their personal laws.

A different column specifying 'tribes' or 'Adivasis' was used from 1872 to 1941 for the purpose of the Census, when adivasis were counted as the third-largest population in the nation. They were considered separate from Hindus. However, this was changed in the 1951 Census, and since then, members of these communities must be counted as Hindu/Christian or Others.

Also read: Daughter can inherit self-acquired property of her father dying intestate: SC

The demand for a separate tribal code to govern the personal laws for the Sarna tribal community has been raised by many activists and tribal leaders as well. Different tribal groups have been holding rallies and gatherings to fight for this demand for many years in Jharkhand and other states.

The Jharkhand government is conscious of the need to develop a special code for the Sarna community. The government in November 2020 wrote to the Union Government, requesting the recognition of the Sarna religion and the inclusion of a separate code for it in the Census of 2021. However, no steps have been taken by the Union Government in this regard.

The codification of a separate tribal religion may give tribal customary laws more legitimacy, but any process that tries to codify the custom must be performed considering the consequences of not only the codification but also validating many gender-inequitable practices. If codifications were to be done, it would therefore need to be done through consultation with the community and other relevant stakeholders. The code would have to be made in line with constitutional values, in order to strike the right balance between equity considerations, universal rights, and cultural sensitivities to improve the condition of tribal women in India.