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Hinduisation of tribal women for grant of inheritance rights in India: A way forward or a conundrum?

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Abstract

The inheritance right of tribal women in India is uncertain and in conundrum. The customary rights of tribals deny absolute right in property to tribal women and the Hindu laws in India also exempt the application of the enactments to the tribals, but the Supreme Court of India has lately in some cases, started granting benefits of Hindu laws particularly inheritance rights to tribal women among those tribes who have Hinduised i.e., those tribes who have abandoned their customary practices and adopted Hindu customs and traditions. The inconsistent approach of court, that excludes tribal women from getting inheritance right due to acceptance of the exclusion clause under Hindu laws and in other instances grants them rights under Hindu law due to Hinduisation, has caused confusion in the minds of tribal women on their right to inherit. The grant of right to tribal women in name of Hinduisation raises various concerns such as whether by judicial pronouncements rights could be given to tribal women when Scheduled Tribes have expressly been legislatively exempted under various statutes, whether tribal women’s right in property could be protected only by course to Hinduisation, whether rights could be given only on basis of bringing them within the domain of religion at the expense of their cultural distinctiveness, whether giving differential treatment to certain tribe on basis of Hinduisation and separating them from other tribes only on the basis of religion is constitutionally valid etc. The paper explores the conundrum created by contradicting opinions of the court and suggests the ways to create a balance between protecting the unique and distinct customary rights as well as the rights of women among such tribal communities.

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Notes

  1. Kamla Neti v Special Land Acquisition Officer (2023) 3 SCC 528.

  2. Constitution of India 1950, art 366(25). It defines Scheduled Tribes as those communities who are scheduled in accordance with Article 342 of the Constitution. Clause (1) of Article 342 of Constitution provides that only those tribes or tribal communities who have been specified by the President of India by public notification are deemed to be Scheduled Tribes. All Italicised words are emphasis added by the author unless otherwise specified.

  3. Hindu Succession Act 1956, s 2(2) 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.’

  4. Labishwar Manjhi v. Pran Manjhi (2000) 8 SCC 587; Chunku Manjhi v Bhabani Manjhi AIR 1946 Pat 218; Satprakash Meena v Alka Meena AIRONLINE 2021 DEL 925.

  5. Department of Agriculture, Cooperation and Farmers Welfare, All India Report on Agricultural Census 2015-16 (2020) [49]. In 2015-16 Scheduled Tribe male operational holdings accounted for 86.57% while females’ operational holdings accounted for 13.43%.

  6. H K Bhat, ‘Hinduization of Tribes: Critique and Perspective’ in Baidyanath Saraswati (ed.) Tribal Thought and Culture: Essays in Honour of Surajit Chandra Sinha (Concept Publishing Company 1991) 223.

  7. Philip Singer, Enrique Araneta Jr., ‘Hinduization and Creolization in Guyana: The Plural Society and Basic Personality’ (1967) 16(3) Social and Economic Studies 221.

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  11. Virginius Xaxa, ‘Tribes as Indigenous People of India’ (1999) 34(51) Economic and Political Weekly 3589, 3589.

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  16. The Internal Task Force constituted by Union Government in 2014 on the scheduling of tribes has held that the criteria laid down by Lokur Committee is ‘obsolete’, ‘cumbersome’ and ‘condescending’. Even then, in response to a request made under the Right to Information Act, the Office of the Registrar General of India in January 2023 has stated that it continues to rely on the criteria established by the Lokur Committee. See Department of Social Security, The Report of the Advisory Committee on the Revision of the Lists of Scheduled Castes and Scheduled Tribes (1965) [7].

  17. Constitution of India 1950, art 342(2) states ‘Parliament may, by law, include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or any tribal community or part of or a group, within any tribe or tribal community, (…)’

  18. Constitution of India 1950, Fifth Schedule, para 6(2).

  19. Panchayats (Extension to the Scheduled Areas) Act 1996, s 4(a).

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  21. ibid s 3(1)(i).

  22. ibid s 3(1)(d).

  23. ibid s 3(1)(m).

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  29. Ministry of Agriculture and Farmers Welfare, Government of India, All India Report on Agricultural Census 2015-16 (2020) [49].

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  40. Indian Succession Act 1925, s 29.

  41. ibid s 3(1).

  42. Gazette of India, Notification No. 204 (23 July 1868).

  43. Gazette of India, Notification No. 1651 (20 November 1886).

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  45. Home Department (Judicial), Notification No. 550 (2 May 1913).

  46. Hindu Marriage Act 1955, s 2(2); Hindu Succession Act 1956, s 2(2); Hindu Adoptions and Maintenance Act 1956, s 2(2) and Hindu Minority and Guardianship Act 1956, s 3(2).

  47. Muslim Personal Law (Shariat) Application Act 1937, s 2.

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  57. Gangte, ‘Gender and Customary Law’ (n 51).

  58. UA Shimray, ‘Equality as Tradition: Women's Role in Naga Society’ (2002) 37(5) Economic and Political Weekly, 375.

  59. Parwez, ‘Women on the Margin’ (n 38) 1369.

  60. Eunice Alinger, ‘Ao Naga Property and Inheritance Laws: Views through Patriarchal Lenses’ 2024 6(2) International Journal of History 162, 163.

  61. Parwez, ‘Women on the Margin’ (n 38) 1369.

  62. A Playfair, The Garos (David Nutt 1909) 71.

  63. Miangky N Marak and V Thirumurugan, ‘The Law of Property Inheritance among the Garo Women in Meghalaya as a Matrilineal Society’ (2024) 30(3) Educational Administration: Theory and Practice 850, 850.

  64. Prodip Nath Bhattacharjee, The Garos of Tripura (Directorate of Research Tribal Welfare Department Tripura, Agartala 1991) 24.

  65. L P Vidyarthi and B K Rai, The Tribal Culture of India (Concept Publishing Company 1977) 390.

  66. Philip Richard Thomhagh Gurdon, The Khasis (Cosmo Publications, India 1907) 83. The Meghalaya Succession to Self Acquired Property Khasi and Jaintia Special Provision Act 1986 allows a Khasi and Jaintia major of sound mind to dispose of his self-acquired property by will.

  67. Dianghunmon Rynjah, ‘Khasi-Jaintia Women: Their Changing Role and Status’ in Lalneihzovi (ed) Changing Status of Women in North-Eastern States (Mittal Publications 2009) 40.

  68. Charuchandra Bandyopadhyay, ‘The Khasis’ (1908) 3(5) The Modern Review 399, 405.

  69. For example, Anand Marriage Act 1909, Indian Divorce Act 1869.

  70. For example, Islamic law of marriage, Islamic law of divorce.

  71. For example, under Hindu law, the devolution of coparcenary property is uncodified whereas the devolution of separate property is codified.

  72. State of Bombay v Narasu Appa Mali MANU/MH/0040/1952 [19].

  73. ibid [21].

  74. C Masilamani Mudaliar v Idol of Sri Swaminathaswami Swaminathaswami Thirukoil (1996) 8 SCC 525.

  75. Indian Young Lawyers Association v State of Kerala MANU/SC/1094/2018 [274].

  76. ibid [278].

  77. See Review Petition (Civil) No. 3358 of 2018 in Writ Petition (Civil) No. 373 of 2006 (Supreme Court), SLP (C) No. 18889 of 2012 (Supreme Court), Writ Petition (Civil) No. 286 of 2017 (Supreme Court), Review Petition (Civil) No. 3359 of 2018 (Supreme Court) in Writ Petition (Civil) No. 373 of 2006, Dairy No. 37946-2018 etc.

  78. Kantaru Rajeevaru v Indian Young Lawyers Association, MANU/SC/0158/2020.

  79. ibid.

  80. Constitution of India 1950, art 144.

  81. Sastri Yagnapurushadji v Muldas Brudardas Vaishya 1966 AIR SC 1119.

  82. ibid [29].

  83. Perumal Nadar v Ponnuswami, MANU/SC/0361/1970 [6].

  84. State of Kerala v Chandramohanan, MANU/SC/0094/2004 [20].

  85. ibid [16].

  86. Knut A Jacobsen, ‘The Ritual of Parikramā, Hinduization of Space and the Case of Ayodhya’ (2024) 32(1) Contemporary South Asia 54, 56.

  87. Population Census, ‘Religion Population’ (Population Census, 2011). https://www.census2011.co.in/religion.php. Accessed 7 June 2024. Census shows the population based on religion followed by people but does not distinguish between ‘people born into a religion’ and ‘people's current religious faith’ and also does not gather data about atheists, agnostics or the like.

  88. Sachchidananda, Tribal India: Past and Present (Institute of Social Research and Applied Anthropology 1992) 24.

  89. Hindu Succession Act 1956, s 8(a).

  90. Labishwar Manjhi v Pran Manjhi (2000) 8 SCC 587.

  91. Chunka v Bhabani AIR 1946 Pat 218.

  92. Langa Manjhi v Jaba Majhian AIR 1971 Pat 185.

  93. Narendra Narain v Nagendra Narain AIR 1929 Cal 577.

  94. Budhu Majhi v Dukhan Majhi AIR 1956 Pat 123.

  95. Butaki Bai v Sukhbati MANU/CG/0338/2014.

  96. ibid [28].

  97. Labishwar Manjhi v Pran Manjhi (n 90) [6].

  98. Madhu Kishwar v State of Bihar MANU/SC/0468/1996.

  99. ibid [50].

  100. Govinda Naika v Rama Naik 2000 (6) Kar LJ 259.

  101. ibid [5].

  102. Prabha Minz v. Martha Ekka MANU/JH/0329/2022 [40].

  103. ibid.

  104. Saraswathi Ammal v Jagadambal AIR 1953 SC 201.

  105. Dr Bini B v Jayan P R (n 37).

  106. Ass Kaur v Kartar Singh MANU/SC/2844/2007 [19].

  107. Joseph Munda v Most. Fudi MANU/JH/0121/2009 [23].

  108. Raiyat means a person who owns land for the only purpose of agriculture and pays land revenue to the government.

  109. Joseph Munda v Most. Fudi (n 107) [10].

  110. Mst Sarwango v Mst Urchamahin MANU/CG/0010/2013 [10].

  111. Bhanu Ram v Mahar Singh Second Appeal No. 163 of 2006 decided on 13 November 2019 (High Court of Chhattisgarh) [19].

  112. Babulal v Sau Reshmabai Narayanrao Kaurati Second Appeal 388 of 2016 decided on 4 January 2019 (High Court of Bombay).

  113. Maniyar Sai v Jangi Bai MANU/CG/0339/2020; Roopautin Bai v Sunderi Bai MANU/CG/0143/2020; Surjotin v Chamrin Bai MANU/CG/0066/2020.

  114. Saravanan v Semmayee MANU/TN/1191/2023 [10].

  115. ibid [11].

  116. ibid.

  117. Bahadur v Bratiya 2015 SCC OnLine HP 1555.

  118. Velamuri Venkata Sivaprasad v Kothuri Venkateswarlu MANU/SC/0740/1999 [12].

  119. Kamla Neti v Special Land Acquisition Officer (n 1) [18].

  120. ibid.

  121. Christine Forster, Imrana Jalal (eds), A Digest of Case Law on the Human Rights of Women (Asia Pacific) (Asia Pacific Forum on Women, Law and Development 2003) 40.

  122. Universal Declaration of Human Rights 1948 (UDHR), art 17. This grants everyone the right to own property and that no one could be arbitrarily deprived of his/her property. India is signatory to UDHR. Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW) emphasizes the significance of granting women and men the same political, economic, social, cultural, and civil rights. Article 15 urges States to grant full equality to both women and men in all civil and contractual matters and Article 16 asserts elimination of all forms of discrimination against women in all matters relating to marriage and family relations including granting equal rights to both women and men in ownership, acquisition, management, administration, enjoyment and disposition of property. India ratified CEDAW on 9th July 1993.

  123. Tanvi Yadav, ‘Witch Hunting: A Form of Violence against Dalit Women in India’ (2020) 1(2) CASTE: A Global Journal on Social Exclusion 169.

  124. Ashok Sircar and Sohini Paul, ‘Do Tribal Women have Land Rights? A Study of Land Rights for Women’ (NewsReach, 2015). https://www.pradan.net/sampark/wp-content/uploads/2019/07/Do-Tribals-Have-Land-Rights-A-Study-of-Land-Rights-for-Women-By-Ashok-Sircar-And-Sohini-Paul.pdf. Accessed 15 November 2024.

  125. Mizo Marriage, Divorce, and Inheritance of Property Act 2014, s 31(2).

  126. ibid.

  127. ibid.

  128. ibid.

  129. ibid s 35.

  130. Chakma Customary Laws Code 1997, s 81(1).

  131. ibid s 81(2).

  132. Sushanta Talukdar, ‘Uniform Civil Code: Tribal Communities fear erosion of Customary Laws, Cultural Heritage’ (Frontline, 27 July 2023). https://frontline.thehindu.com/the-nation/uniform-civil-code-tribal-communities-in-north-eastern-india-fear-erosion-of-customary-laws-cultural-heritage/article67105854.ece. Accessed 1 October 2024.

  133. Uniform Civil Code of Uttarakhand Act 2024, s 2.

  134. ‘No consensus on UCC as Nagaland becomes Third State Assembly to pass a Resolution against it’ (Indian Express, New Delhi, 13 September 2023).

  135. Nitya Rao, ‘Custom and the Courts: Ensuring Women’s Rights to Land, Jharkhand, India’ (2007) 38(2) Development and Change 299, 315.

  136. Prabha Minz v. Martha Ekka (n 102) [44].

  137. Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, Twenty Sixth Report on Demands for Grants (2008-09) (Rajya Sabha Secretariat, April 2008).

  138. ibid [54].

  139. Ministry of Tribal Affairs had outlaid its budget of Rs. 12461.88 crore in financial year 2023-2024 i.e., an increase of 70.69% over 2022-23 with a revised estimate of Rs.7301.00 crore. See Ministry of Tribal Affairs, ‘Year End Review 2023’ (Press Information Bureau, 10 January 2024). https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1994794#:~:text=The%20Budget%20Outlay%20for%20the,7301.00%20crore. Accessed 18 April 2024.

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    Archana Mishra

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Mishra, A. Hinduisation of tribal women for grant of inheritance rights in India: A way forward or a conundrum?. Jindal Global Law Review 15, 537–561 (2024). https://doi.org/10.1007/s41020-024-00241-3

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