On 9 December 2022, while hearing a case related to the succession rights of Adivasi women, the Supreme Court said that when the woman belonging to the non-Adivasi family is entitled to an equal share in the property of her father, there is no reason to deny such a right to the daughter of an Adivasi family. The court directed the Centre to examine the issue and consider amending the provisions of the Hindu Succession Act.
The Court said that it was not right to deny equal succession rights to tribal women even after 70 years of the Constitution of India, guaranteeing the right to equality, having been in effect and that it was high time the Central government looked into the matter and if required, amended the provisions of the Hindu Succession Act.
The problem is that the Hindu Succession Act, which gives equal right to property to male and female heirs, does not apply to the Scheduled Tribes as stated in Section 2(2) of the Act. Due to this, of the Scheduled Tribe women do not get a share in their father’s property.
A bench of Justices M.R. Shah and Krishna Murari said there is no justification for denying the right of survivorship (the right to property on the death of another having a joint interest) so far as the female members of Scheduled Tribes are concerned.
The Bench said, “The Central government is directed to examine whether it is just and necessary to withdraw the exemptions provided under the Hindu Succession Act.” It also added, “We hope and trust that the Central government will look into the matter and make an appropriate decision taking into consideration the right to equality guaranteed under Articles 14 and 21 of the Constitution of India.”
The top court’s observations came while dismissing a plea on whether a woman (belonging to Scheduled Tribes) is entitled to the share in the compensation with respect to the land acquired on survivorship basis under the provisions of the Hindu Succession Act.
The Supreme Court said that prima facie it was of the view that not granting the right of survivorship to the woman in the property of her father can be said to be bad in law and cannot be justified today, but so long as Section 2(2) of the Hindu Succession Act stands and there is no amendment, the parties shall be governed by the provisions of Section 2(2) of the Hindu Succession Act.
The Hindu Succession Act, one of the legislations under the Hindu Code Bill, lays down how the property of a Hindu who dies intestate will be divided among his heirs, family and relatives. The Act divides the heirs into different categories and assigns their share in the property. The Act applies to any person who is a Hindu, Buddhist, Jain or Sikh by birth or has converted or reconverted to these religions; any illegitimate child, one of whose parents is a Hindu, Buddhist, Jain or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and to a person who is not a Muslim, Christian, Parsi or Jew by religion.
The Supreme Court’s comments have stirred up a hornet’s nest among the Adivasi community. Former MP and national president of Adivasi Sengel Abhiyan, Salkhan Murmu, said that he agrees with the Supreme Court that Adivasi women should have equal rights to ancestral property. The Adivasi Sengal Abhiyan supports equal rights for women in keeping with Article 14 (Fundamental right to equality before law) and Article 21 (Fundamental right to live with dignity) of the Constitution. However, he does not agree with the Supreme Court’s suggestion that this right should be given by amending Section 2(2) of the Hindu Succession Act. Because that would imply that the Adivasis are Hindus.
He says that in the Hindu Marriage Act 1955 and the Hindu Succession Act 1956, the term “Hindu” includes Jains, Sikhs and Buddhists but not Adivasis. “The Adivasis are not Hindus but nature-worshippers,” he says. “Most of the nature-worshipping Adivasis have demanded a separate code for their religion Sarna. The Supreme Court is trying to forcibly bring the Adivasis under the category of Hindus, which is a violation of their fundamental right to freedom of religion [Article 25].” At the same time, he said, opposing the Constitution of India in the name of tradition, custom, etc is also not good for the Adivasis. “It is imperative to implement Part B 5(1) of the Fifth Schedule. For instance, the Adivasi women who marry a non-Adivasi may be deprived of their right in ancestral property to prevent transfer of the property of Adivasis to non-Adivasis through deceit or fraud.”
Social activist Rajni Murmu recalls that in 1986, Chotanagpur’s Juliana Lakda had filed a case in a court seeking a share in her father’s property. The court sought the opinion of the government of the then united Bihar. The government, in turn, sought the views of the Tribal Advisory Committee (TAC). The TAC opined that Adivasi women were not capable enough to take care of land.
Rajni Murmu says Ratan Tirki, a former nominated member of the TAC when Raghubar Das was chief minister of Jharkhand, has demanded that Adivasis women who marry non-Adivasis not be entitled to reservation. Murmu says, “There is no point in making such a demand, for a law to this effect can never be promulgated. But such demands are raised from time to time just to instil fear into the hearts of Adivasi women so that they do not dare demand their rights. If an Adivasi woman talks back, it is alleged that she is in a relationship with a Diku [non-Adivasi]. If an Adivasi woman keeps to herself, it is alleged that she is in a relationship with a Diku. And the same allegation is made if an Adivasi woman delays entering into matrimony.”
Monica Marandi, the founder editor of online magazine Sakhua, says, “I have always been of the opinion that all Adivasi women should have a right to ancestral property. I agree that some complexities are involved but the Adivasi communities should put their heads together to thrash them out and explore how we can give equal rights to our daughters and sisters. We should remember that when the land is under threat, Adivasi women stake their life to save it. Then how can we keep them away from land?”
She says that there is a fear in some quarters that such a move would lead to non-Adivasis getting hold of the land of the Adivasis. “But no one has come out with any logic to support this contention,” Marandi says. “The Adivasis are known for giving equal rights and status to women. It is time to underline this once again by giving them equal rights to land.”
Journalist Deepak Bara says that there was no concept of personal property among the Adivasis, and agricultural land used to be communal property. “The traditional ‘aguas’ used to distribute land for tilling to different families every year”, says Bara. “The most fertile piece of land went to a family by rotation, and the entire village used to help in the work. As soon as the rainy season set in, all the people of the village would begin the sowing activities, beginning from the field at the highest level and then descending to lower and still lower levels. Work was shared between the men and women in keeping with their physical abilities. Men did the tilling while women lined the bed with soil. Men carried paddy seedlings while women transplanted them. Men guarded the crops. Both harvested the crop together but it was the responsibility of the men to carry paddy from the field to the home.”
He says that the land “bandobast” (settlement) done by the British wrecked this traditional system. “Women lost ownership of land and non-Adivasi patriarchal norms began dictating land relations. Traditionally, the Adivasis did distinguish between men and women but only because the two have different physiques and capabilities, and not because they believed in gender discrimination. These changes were cataclysmic for the Adivasi communities and were at the root of many Adivasi revolts. Today, the Manuvadi civilization is sermonizing the Adivasis on treating men and women equally. It is making the courts issue orders and pass comments. But it should not be forgotten that the Adivasis have their own system of self-government, and the Constitution gives them the right to follow it.”
Bara says, “It is the courts that are to blame for denying equality and representation to the Adivasis. I believe that we should be given the rights to govern ourselves in the Fifth Schedule Areas in accordance with the PESA Act and we will end the male-female divide. Even now we give our women the right to dowry and property. Married women have a share in the property of their in-laws. If they don’t get it, their fathers give them equal rights. The norms were made to ensure that the already small fields in the hilly areas do not get divided further.”
James Herenj, convener of Jharkhand NREGA Watch, says, “According to Article 13 (3) (a) of the Constitution, ‘… law includes any Ordinance, order, by-law, rule, regulation, notification, custom or usages having in the territory of India the force of law.’ According to the customary tradition among Adivasis, if a woman doesn’t marry for any reason, she has the right to maintenance from her father’s immovable property. Married women have equal rights in the property of their husbands. If a woman, due to some reason, lives with her husband in her maternal home, her father or mother gives her enough land to meet her living expenses. The Supreme Court’s comment seems to be part of a conspiracy to break the social warp and woof of the Adivasi community and to transfer their properties to non-Adivasis.”
(Translated from the Hindi original by Amrish Herdenia)
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