By Dr Palla Trinadha Rao*
During a recent AP Tribes Advisory Council meeting held on 23rd July, 2021, the issue of non recognition of ST women’s right in inherited property in the family has come for discussion. The meeting chaired by the Deputy Chief Minister, Tribal Welfare Pushpa Srivani discussed the issue with a positive note and passed a resolution to bring the item in the next meeting for a final decision. The Tribes Advisory Council is a constitutional body formed under Fifth Schedule to the Constitution. The issue is a long pending one and has to be viewed in the context of both customary laws as well as fundamental rights guaranteed under the Constitution of India.
Modern jurisprudence of rights to natural resources (whether usufructuary or property) are grounded on ‘private property’ perspective that have emerged since colonial period. This idea of property offers a limited scope for people to own resources; only ‘legal persons’, an individual, company, or other entity which has legal rights and is subject to obligations could have ownership. These are invariably alienable and transferable rights unless otherwise prevented by law. The property perspective, however, is also deeply discriminatory in its constitution: it excludes any person who does not have legal capacity from owning a resource. Until very recently, sections like that of women and persons with disability were considered to be without sufficient legal capacity to own resources.
What distinguishes tribal people from this narrative is that they invariably did not have the tradition of the modern private property regime. Their customary regime is not based on the concept of ‘property’ even, least of all private property. In the case of land (the basis of all resources), their regime is based on the premise that they belong to the land and that the land does not belong to them. Tribal people, by virtue of their customary association with land, cannot own it in the sense of private property ownership. Furthermore, land and resources are not for accumulation of wealth like that under a capitalistic regime but, intended to fulfil their needs for sustenance Therefore, often it is limited to right to resource use rather than resource “rights” in terms of ownership.
However, the modern private property regime has historically been imposed by laws on Scheduled Tribes (STs). Despite special provisions for Scheduled Tribes (STs) in the constitution such as Article 371A & G for Nagaland and Mizoram and Article 244 for V and VI Schedule Areas that explicitly recognise customs and traditions particularly related to land and natural resources, yet their elaboration in law and formal operationalisation has been neglected. In complete absence of any substantive law that could protect the rights and identities of tribal people, they had to resort to accepting modern property paradigm to keep themselves and their land protected. And in that process, the non-property regime of tribal communities, a lot of which was based on non-patriarchal norms, was lost or getting lost in discourse. And the patriarchy of the religious, modern society seeped into the tribal landscape.
However, there have been few legal amendments in the recent past that have altered the course of property discourse. The diversity of tribal communities has been legally recognized. Now, Gram Sabhas of villages have the right to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution. This includes the right to protect land alienation and restoration of unlawfully alienated lands have been vested in them under the Provisions of the Panchayats (Extension to the Scheduled Areas) Act 1996 (PESA). In addition, Gram Sabha competency to determine and approve rights including adjudication of a vast array of claims on forest lands under Forest Rights Act 2006 (FRA) is now a norm. Further, collective rights to legal entities as the ‘Gram Sabhas’ have emerged such as the Forest Rights Act 2006 which are inalienable but inheritable, an adoption of a widely prevalent customary and traditional practices common amongst tribal peoples. Community land rights are layered with diverse use rights over the same forest land by diverse or same set of people from the Gram Sabha or even adjacent Gram Sabhas. While the Gram Sabha rights to the land are absolute, who uses the land for what purposes, when and to what extent are subject to the Gram Sabha’s collective wisdom.
At the same time, the dominant frame has been seeping into the tribal people’s traditional frame adopting private property, patriarchal relationship etc. Their collective rights to their homeland have not been formally recognised; it is only recently that the traditional and customary boundary falling within the forest lands have entered the formal law defining the jurisdiction of the Gram Sabha over forest lands. The absence of such a democratic rights determination process on revenue lands, long overdue, have been steadfastly ignored by State governments except in the north-east where community land is separated from the modern land regime itself leaving them entirely to the customary jurisprudence including that of inheritance and leaving disputes to be resolved under customary mechanism.
In the given context, while ST as a community have had their identities and diversities recognized, along with their substantive right to equality, women of these communities continue to face discrimination. ST women are discriminated on the ground of sex in some tribal communities, in the matter of intestate succession to the estate of the parent or husband. Therefore, a glaring gap in the policy and legal framework exists in the context of ST women. There is also the difficulty of determining what constitutes customs and tradition of tribal peoples where the current practices may be a mix of traditions, traditions in transition, adoption of modern practices, imposition of external practices etc.
Problem perspective:
The problem in the question of women’s rights in inherited property is, therefore, is foundational. The struggle of recognition of tribal communities has been based upon their distinctive traditions and customs. For addressing the question of women’s rights in inheritance, we would need to recalibrate the meaning and implications of customs and practices. We need to rethink whether customs that form tribal identities are fair to both tribal men and women. Fairness of law is a constitutional requirement under article 14 and therefore, this problem would raise massive complications.In the above complex context, the Scheduled Tribes’ (STs) women are deprived of succession rights over the ancestral property. The customary norms of STs do not recognize the inheritance property right in the family are limited to usufruct only. There is no codified law for the STs to decide who can be the direct heir to the deceased ST in the family unlike Hindu or Muslim or Christian laws of succession to inherit the property. The right of inheritance is primarily a transfer of the individual’s property, debts, titles, rights, and obligations to another individual upon the death of that person.
The Forest Rights Act, in its process of shifting the paradigm of property, recognized the discrimination faced by women from within their community with whom they were equal partners in struggle. sub Clause 4 of Section (4) of Forest Rights Act 2006 provides that forest rights conferred under the Act shall be heritable but not alienable or transferable and shall be registered jointly in the name of both the spouses in case of married persons and in the name of the single head in the case of a household headed by a single person and in the absence of a direct heir, the heritable right shall pass on to the next-of-kin. Therefore when the Scheduled Tribe forest land title holder/holders dies, the individual forest rights conferred on him/her/them under the RoFR Act shall pass on to his/her direct heirs and in their absence the heritable right shall pass on to the next of kin.
The Draft National Tribal Policy (2006), MoTA, GoI. Recommended that “Customary practices (of inheritance, ownership of property, etc.) which discriminate against women would be examined with a view to bring about gender parity.”
For the non-tribal populace, there have been a few amendments in law which have recognized equal status of women in succession matters, In the case of Hindu Succession Act 1956, Section 2(2) excludes its applicability to the Scheduled Tribes as defined by Clause (25) of Article 366 of the Constitution unless the Central government, by notification in official gazette otherwise directs. The Hindu Succession (A.P. Amendment) Act 13 of 1986 conferred on the unmarried daughter the status of co-parcener by birth and has given her right to claim partition and equal share along with the sons. Further, the Hindu Succession (Amendment) Act of 2005 made daughters coparceners in Hindu undivided family by birth, giving them the same right as sons with effect from 9.9.2005.
A three-judge bench of Supreme Court, headed by justice Arun Mishra (Vineeta Sharma vs Rakesh Sharma on 11 August, 2020) ruled that the Hindu Succession (Amendment) Act 2005, to say a daughter would have the same rights as the son, would also apply irrespective of whether she was born before or after the amendment. Further, it ruled that she could not be denied her share on the ground that her father died before the law came into effect. Thus the Hindu Succession Laws were enacted to undo past injustice and elevate a Hindu woman to equal status with dignity of person on par with man in sharing their rights over inherited property.
The Muslim Personal Law (Shariat) Application Act 1937 and Indian Succession Act 1925 also exclude its applicability to the Scheduled Tribes.
However, for tribal families, in the absence of the codified law governing the inheritance of the property, the customary norms will only be applicable to them to decide the legal heir ship of the deceased member of the family.
Judicial Precedents:
In general, the courts have refused to address this complexity of customs and the discriminations that lie within them. The majority judges of the Supreme Court bench held in Madhu Kishwar case (Madhu Kishwar & Ors. Etc vs State Of Bihar & Ors on 17 April, 1996) that “it is not desirable to declare customs of tribal inhabitants as offending Articles 14, 15 and 21 of the Constitution and each case must be examined when full facts are placed before the court”. The Hon’ble Justice Ramaswamy in Madhu Kishwar case, though a minority, view held that, ”the provisions of Hindu Succession Act 1956, and the Indian Succession Act 1925, though in terms, would not apply to ST, the general principles contained therein being consistent with justice, equity, fairness, justness and good conscience would apply to them”.It was in 2016, that one of the first decisions came from the Himachal Pradesh High Court which unfolded the problems underlying blind following of customs, whether of the mainstream hindus or the tribal community. The Himachal Pradesh High Court in Bahadur Vs Bratiya and ors reported in (AIR 2016 H.P. 58,) invoked the Constitutional philosophy underlying Articles 15, 38, 39 and 46 of the Constitution of India to hold that gender discrimination violates fundamental rights and daughters are entitled to equal share in the properties and further concluded that the daughters in the tribal areas in the State of Himachal Pradesh shall inherit the property in accordance with the Hindu Succession Act, 1956 and not as per customs and usages.
The Supreme court in the matter of Indian Young Lawyers Association & Ors. v. The state of Kerala & Ors. On 28th Sep.2018 (Sabarimala Temple Case) held as under:− “Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny is to deny the primacy of the Constitution”.
The Supreme Court in the matter of Mohammad Baqar and Ors. v. Naimun Nisha Bibi & Ors. on November 1955 held that the burden of proving a custom in derogation of the general law being heavily on the party who sets it up, it was incumbent on the appellants to prove by clear and cogent evidence that there was such a custom as was pleaded by them. The Supreme Court in the matter of Saraswathi Ammal v. Jagadambal and another (AIR 1953 SC201) held that it is incumbent on a party setting up a custom to allege and prove the custom on which he relies and custom cannot be extended by analogy and it must be established inductively, not deductively. Similarly in the case Babulal S/O Bapurao Kodape and vs Sau. Reshmabai Narayanrao on 4 January, 2019, the Bombay High Court bench held that the burden of proof lies on a party who says there is no such custom in tribal society. The Apex court in the case of Labishwar Manjhi vs Pran Manjhi and Ors. on 19 July, 2000((2000) 8 SCC 587 ) held that when evidence disclosed that parties belonging to Santhal Tribe were following customs of Hindus and not of Santhals, provision of Hindu Succession Act would apply to inheritance of property. In the case of Budhu Majhi and Anr. vs. Dukhan Majhi and Ors., AIR 1956 Pat 123, it has been observed that it is not necessary that the parties must be completely Hinduised. Even if they had been sufficiently Hinduised so as to be governed by Hindu Law of succession, it is enough.
Concerns of STs in the State of AP:
During a Workshop on non-recognition of tribal women inherited property rights on 15th May, 2017, Vide Ref. RC No 2/TRI-SPMO/2017 dated 2-5-2017 of the Commissioner of Tribal Welfare, represented by the tribal leaders of ST groups -Koya, Kondareddy, Jatapu, Bhagata, Valmiki, Nukadora, Gadaba, Savara and Kammara concluded that “it is an undisputed fact that the tribal traditions and customary norms are not supporting the tribal women to claim an equal share on par with men in the inherited property”. The Project officer, ITDA, Nellore Vide ref. Lr RC No :SOWO3-MTG/2/2019-DPO-18-ITDA-NLR Dated 19-11-2019, reported that the group discussions with Yanadi STs in general areas reveal on the issue that “as per the traditional norms a tribal woman cannot claim rights over the inheritance property on par with men”.Prof. Christopher Von Furer- Haimendorf, a German Sociologist appointed by Nizam of Hyderabad in 1940 who spent his life with the tribals in Nizam State in Andhra Pradesh says in his “Tribes in India, the Struggle for Survival” that Chenchoo women, tribals in Andhra Pradesh, enjoy equal status with men. They can own property, but they cannot inherit any substantial property”.
The Prl. Secretary to Government, Women and Child Welfare, Vide DO Lr 4296/WP1/2009/14-10-2009 addressed a DO letter to the Prl. Secretary to Government, Tribal Welfare, noting that there is an urgent need to enact a separate law to protect the rights of the tribal women over the inherited property as well as to prevent alienation of her right to property got through succession to any other members who are other than the STs.
All the above observations pertain strictly to the realm of inheritance with reference to the lands that are titled under prevailing formal property laws. These do not cover the large arena of resource use by community and its members outside of the formal official regime and the rights of ST women in this. These currently fall within the prevailing social practices in the community.
Apprehensions if rights given to ST women- Possible solutions:
In the context of tribal land alienation problem in the Fifth Scheduled Areas of the State there is also a need to protect the tribal lands from alienation to non tribals and to other tribals. The argument of traditional tribal elders is that if tribal women are given right to inherited property, there will be every possibility of non-tribal migrants to gain access and control to land through marital or illicit relationship with tribal women. This has been reported to be widely prevalent. So are various other means of tribal land alienation despite protective laws too are widespread. The argument that it is necessary to deprive their right to property of tribal women is necessary to prevent tribal land alienation has no rational basis or justification. And it does not address the issue of tribal land alienation. In fact, this apprehension is based on the paternalistic ideas that property can only devolve through men and that when women own property, they cannot keep it protected.The A.P. Scheduled Area Land Transfer Regulations 1 of 70 prohibits transfer of lands not only between tribals and non tribals but also between the non tribals in the Scheduled Areas. Therefore even a tribal woman cannot transfer her right over the land in favor of a non tribal –husband.
Further a law is required to be made that protects the interest of tribals at large in the case of a tribal woman marrying a non-tribal person. In case if a tribal woman dies intestate, her property should devolve to her children, in the absence of children the property should revert back to any male or female successors who are the members of ST. And in no case succession of property to a non- tribal husband shall be permitted to devolve if a tribal woman dies intestate. This principle may also be made applicable to tribal men also if he marries a non-tribal woman.
Thus a comprehensive legislation is essential to be brought out under Fifth Schedule to the Constitution in order to reverse the historical injustice being perpetrated to tribal women in claiming her share in the inherited property. Article 14 of the constitution provides them with fundamental right to equality and this right needs to be interpreted in their context. This can be done at two levels: One is to recognize the plurality and diversity of tribal communities and hence recognizing their autonomy. Two, to then go one step further and say that this is equally applicable to women. So, a custom which does not recognize their equal rights, is also unconstitutional. The centrality of the Gram Sabha as the primary governing structure both under PESA 1996 and FRA 2006 for determination of rights and their adjudication that already exists in law has to be the basis for embedding inheritance rights which is an integral part of rights determination, protection and adjudication.
The following provisions in law constitute the basis of the inheritance law:
As per the Sec. 4(d) of PESA Act 1996 every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution and under Sec. 4(m) (iii) (vi) to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe and to exercise control over institutions and functionaries in all social sectors.Similarly under Sec 6. (1) of Forest Rights Act 2006, the Gram Sabha shall be the authority to initiate the process for determining the nature and extent of individual or community forest rights or both that may be given to the forest dwelling Scheduled Tribes and other traditional forest dwellers within the local limits of its jurisdiction under this Act by receiving claims, consolidating and verifying them and preparing a map delineating the area of each recommended claim in such manner as may be prescribed for exercise of such rights and the Gram Sabha shall, then, pass a resolution to that effect and thereafter forward a copy of the same to the Sub-Divisional Level Committee.
In this background, the following could be the structure for the law:
Scheduled Area:
Empowering the Gram Sabhas, the statutory authority under PESA 1996 with reference to the revenue lands and with reference to the forest rights on forest lands under FRA 2006 to deal with matters of inheritance or rights of STs, whether of property or usufruct or use rights which are inheritable by law, customs and traditions but not in derogation of the equity principle that daughter should have the same rights as the son in the inherited property of the family.In case if a tribal woman dies intestate, her property should devolve to her children, in the absence of children the property should revert back to any male or female successors who are the members of ST. If a tribal or non tribal married male in the family dies intestate his property should devolve to his ST wife on par with his children equally. And in no case succession of property to a non tribal shall be permitted to devolve if a tribal woman or men in the family dies intestate.
An aggrieved party can file an appeal before the Agent to Government/District Collector of the District against any decision passed by the Gram Sabha.
Non Scheduled Area:
Family Courts have jurisdiction with reference to the revenue lands and the Gram Sabha as under FRA 2006 with reference to the forest rights on forest lands under FRA 2006 to deal with matters of inheritance or rights of STs whether of property or usufruct or use rights which are inheritable by law, customs and traditions but not in derogation of the equity principle that daughter should have the same rights as the son in the inherited property of the family.Therefore a separate State law has to be enacted ensuring ST Women’s Inheritance Rights to Property in consonance with the provisions of PESA Act and FRA 2006.
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*Inputs: CR Bijoy and Astha Saxena
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