“Land rights” are of crucial significance to an individual. They entail the inherent freedom of individuals to acquire, utilize, and own land according to their preferences, provided that their land-related actions do not infringe upon the rights of others. The “Indian Succession Act” governs how an individual can inherit Land. Particularly, the “Hindu Succession Act” looks over the land rights of Hindus, Sikhs, and Jews. Intriguingly, at the same time, Section 2 (2) mentions the exclusion of Scheduled Tribes from the same. Rather they are governed by their customary laws. Or if the State Government reconsiders, they can be governed under the “Indian Succession Act” via Section 3. Yet this brings forth further implications.

In 2005, legislation allowed women to inherit their rights and acquire property, putting them on par with men. But they excluded tribal women from the purview. This has created waves of unjust equitable rights distribution in violation of fundamental rights, especially “Article 14” (“Right to equality”). Yet the recent decision of the Supreme Court in “Kamala Neti vs Special Land Acquisition Officer” marks a strident effort in change. To delve further, let us look at the evolution of tribal women’s rights and then analyze the impact of this case.

1)    DECIPHERING THE REASON BEHIND EXCLUSION

Schedules V and VI [1]of the Constitution bestow Tribal Communities to govern marriage, succession, and inheritance as per their customary rights. While STs are not primarily excluded from the “Indian Succession Act, 1925” and “Hindu Succession Act, 1956”, Section 3 allows States to exclude them. Justified of ancestral customs, they unconsciously reinstated the patriarchal norms. This poses another problem, often ignored, “the lower level of literacy rates in Tribes” rendering them incompatible with the just and equitable distribution of land and inheritance”. Women are disadvantaged in this aspect.

The customary rights of different tribes vary[2]. No tribes practice the same custom. For instance, Arunachal Pradesh follows a patrilineal lineage and male authoritarian form of dominance. In another tribe, Hill Miri, women lack the right to inherit “immovable property”. But are granted rights over private property or money. Most tribes tend to lean towards men in land rights. But there is the existence of some matrilineal families where women are given just rights over lands. Such as Lalung tribes, daughters are given the right to inheritance, yet husbands assume a “managerial role”. Yet, they are deprived of such rights, if they marry outside the tribes. Most tribal communities have an inherent belief that their customs are sanctioned by their predecessors.

The court seemingly rates the land rights based on “assimilation into Hinduism”. Tribal women receive benefits.

PROBLEM WITH THIS OBSOLETE LAW:[3]

1. Men here see women as a possession, perpetuating the rate of violence and harassment against women
2. They are delegated to a secondary status, making them vulnerable to oppression, humiliation, and suffering.
3. Adivasi women have been facing entrenched inequality in society for two main reasons. Firstly, in society, they are frequently socially and geographically isolated. Secondly, the marginalization they experience they experience is exacerbated by a rigid social structure and patriarchal norms that limit their abilities to assert their rights to an equitable share of ancestral property.
4. This violates the Constitution’s fundamental rights, “Article 14” “Right to Equality”.
5. The “assimilation into Hinduism” remains an insufficient criterion. Only a few tribes identify themselves as Hindu. Rest follows Sarna, a[4] religious principle guided by nature and ways of life. There are 50 lakh STs in India, and a mere 5 % identify themselves as believers of Hinduism.

The test of “Hinduisation” was established in the case of “Bukati Bai v Sukhbati”. The court specified conditions under which tribal women could be eligible for the benefits of the HSA. The court required that the plaintiffs prove they had not only renounced their customary laws but embraced Hindu practice. This dual demonstration required them to fall under the rules of succession and inheritance.

2)    “KAMALA NETI V SPECIAL LAND ACQUISITION OFFICER”[5]

On December 9, 2022, the court in the case of “Kamala Neti v Special Land Acquisition Officer”[6] emphasized the need for an amendment, a revolting change, in the “Indian Succession Act” and “Hindu Succession Act” and incorporated the tribals in the framework.

To delve deeper let us analyze the facts, issues, and judgements. Alongside some crucial observations.

FACTS:

The main contention was about the “compensation for land among the parties.

• Late “Satyananda Negi” passed away leaving behind two sons- “Chakradhar” and “Gajadhar”
• Chakradhar had 4 sons and 1 daughter, Kamala (the appellant).
• The appellant contended 1/5^th (one-fifth) of the Chakradhar’s share, to the Reference Court under “Section 30” of the “Land Acquisition Act.”
• The Reference Court rejected the same because the petitioner “Kamala” belongs to the Scheduled Tribes (STs) community. Under HAS, 1956, Section 2 (2) they cannot be governed under the same.
• The matter went to the Supreme Court hence the present appeal.

ISSUE

1. Whether the provisions of the “Hindu Succession Act” shall apply to the members of the Scheduled Tribes Community (STs)?
2. Whether the appellant being the daughter is entitled to the share in the compensation if HSA, 1956 applies?

APPELLANT’S CONTENTIONS

• The counsel for the appellant contended that the daughter should be entitled to share

in the property.

• The counsel contended that the denial of the right to succession to a woman amounts to a Violation of “Article 21” of the “Constitution of India (Right to Life)”.

RESPONDENT’S CONTENTIONS

• The counsel for the appellant contended that the parties in the present suit belong to a Scheduled Tribe. As a result, the appellant cannot acquire any property under  S 2 (2) of HSA.

JUDGEMENT

Unfortunately, The court had to dismiss the petition because of the exceptional provision under the “Hindu Succession Act”. Yet at the same time, some important observations were made as mentioned below.

OBSERVATIONS

• The court relied on the case of “B.Premananda Nad Ors V Mohan Koilal &Ors”. Via this, it pointed out that, in case of conflict between law and equity, law must always prevail.
• While the court recognized the severity of the appellant’s petition, still realized it could not do anything for the appellant. The acceptance of Kamala’s petition signifies the need for an amendment. Courts do not hold such enormous power. Only the legislature can take apt steps regarding it.

3)    questions that need to be addressed[7]

While we have delved into the intricacies of the case, these are some of the questions that need to be taken under consideration by the legislature while amending the act.

1. Whether customary tribal practices take precedence over established legal statutes?

The question gains particular relevance in situations where tribal inheritance norms, though possibly documented, do not explicitly address the exclusion of women in inheritance. Hence, the burden of proof falls upon this party to demonstrate customary laws supersede constitutional provisions.

• Should customary law take precedence over “Hindu law”? The Himachal Pradesh High Court ruled that inheritance rights should align with the “Hindu Succession Act, 1956” rather than the local customary laws which tend to be discriminatory.  The “Hindu Succession Amendment Act (2005)” was introduced to give women the right to inherit ancestral property. Consequently, the provisions of the HSA, 1956 should take precedence over local customs.
• Last but not least, the caste designation of a child born to a Scheduled Tribe (ST) woman who marries a different community (inter-caste marriage). A 2012 Supreme Court decree, clarified that in such ambiguous cases, there is no legal requirement for the child to adopt the father’s caste they can follow the mother’s caste instead. The court also ruled that a child born to an ST woman who marries a man from a ‘forward caste’ cannot be denied an ST certificate solely due to this inter-caste marriage. If the child has experienced caste discrimination, they are eligible for an ST certificate, regardless of the father’s caste. Recognizing the child as part of the ST community is crucial, as it allows them to claim their right to their mother’s tribal land.

4)    THE WAY FORWARD

• Top of Form

Although it is crucial to change the existing law in place for the benefit of tribal women, so is the need to change the public perception of the same. This can be done by employing the following methodologies.

1. Education and awareness

Many governmental bodies often overlook women’s land rights. For instance, the 2015 “National Training Policy for Rural Development and Panchayati Raj”, which shapes capacity building for rural development officials, has not mentioned women’s land rights.

Similarly, the National Judicial Academy, which trains judicial officials, conducted seven gender sensitization sessions and 130 workshops, from 2018 to 2021, yet none focused on women’s land rights. These gaps in training sessions need to be addressed to ensure women receive their rightful share of land.

• Data and Targeted Programmes

One of the biggest obstacles to addressing women’s land rights is the lack of gender-disaggregated data on land ownership. Without this data, it’s challenging to assess the scope of the problem. While NITI Aayog is digitizing land records, it does not explicitly provide such data. To tackle women’s rights denial the government must prioritise data collection.

A key step would be to include gender-disaggregated data in the national indicator framework developed by the Ministry of Statistics and Programme Implementation. This would push states to gather more accurate information, allowing targeted programs to address women’s landlessness, especially in aspirational districts

5)    FUNDAMENTAL RIGHTS IN VIOLATION

  The denial of land rights to tribal women violates their fundamental rights in key ways.

•  Right to Equality (Article 14)

The Indian Constitution of the rights to equality lays on the equality before the law of everyone. Through the denial of land rights to tribal women, these women are treated as discriminated females based on gender and tribal identity. The rejection of land rights, on the contrary, makes women always be discriminated against and it creates a huge gap between men and women.

• Right against Discrimination (Article 15)

Article 15 is against discrimination on any grounds be it religion, race, caste, sex, or place of birth. The discrimination of women in inheritance laws is completely in opposition to the constitutional provision that prohibits such discrimination. Besides, the gender-related issues and the marginalization of the tribal communities are strengthened by the personification of this system.

• Right to Freedom (Article 19)

The right to life, as interpreted by the Supreme Court, encompasses the right to live with (C) the Right to Freedom (Article 19) is a right that is written to all the citizens of India to express, communicate, and receive information anywhere and anytime.

The freedom of the right is a set of liberties, such as the right to choose and reside in any part of the country and the right to be engaged in any lawful occupation or trade. Tribal women’s land rights denial hinders their freedom to freely participate in lawful occupation or trade.th dignity.

•  Right to Life and Personal Liberty (Article 21)

The Court referred to the right to life as the right to life with dignity. The refusal of tribal women to get land rights can greatly impact their economic status, self-esteem, and place in society, and this, besides their right to make a personality decision, destroys their dignity and the quality of their life.

6)    conclusion

To sum up, the denial of land rights to tribal women in India is not only a violation of their basic rights but also the perpetuation of the discrimination and inequality that have been in society for a long time. The current problems are because of the complicated legal structures and the outdated tribal traditions that still give men advantages over women. The Supreme Court’s latest rulings, for example, the “Kamala Neti v. Special Land Acquisition Officer” decision, demonstrate that there is a need for legal reform and a change to more inclusive practices. The initial way of addressing these inequalities is to apply a complex method that comprises education, sensitization, and targeted data collection. It is a must that we give tribal women the same rights to the land so that they can be treated equally and thus, the society will be more just and equitable. These changes are of extreme importance not only for the development of tribal women but also for the grand aim of gender equality and social justice in India.

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[1] Tribal Women’s succession rights in India TSCLD, https://www.tscld.com/tribal-women-equal-succession#:~:text=The%20Hindu%20Succession%20Amendment%20Act,and%20partially%2Fsufficiently%20Hinduized%20tribes  (last visited May 20, 2024)

[2] Scheduled tribe women not entitled to any “right of survivorship” under Hindu Succession Act: Supreme Court Urges Centre to bring suitable amendment Live Law, https://www.livelaw.in/top-stories/supreme-court-hindu-succession-act-survivorship-right-amendment-kamla-neti-d-vs-special-land-acquisition-officer-2022-livelaw-sc-1014-216267 (last visited May 20, 2024)

[3] Nigam, M. and Chauhan, P.R. (2023) Outside the fold, op-ed | Outside the fold: Evolution of inheritance rights of tribal women has been contingent upon judicial interventions – Telegraph India. Available at: https://www.telegraphindia.com/opinion/outside-the-fold-eWvolution-of-inheritance-rights-of-tribal-women-has-been-contingent-upon-judicial-interventions/cid/1960652 (Accessed: 20 May 2024).

[4] Succession rights of tribal women: Time for gender equality Bar and Bench – Indian Legal news, https://www.barandbench.com/columns/succession-rights-of-tribal-women-time-to-make-them-gender-equal

(last visited May 20, 2024)

[5] How tribal women in India are subjected to ‘Hinduisation’ to be able to access the right to inherited property, https://www.downtoearth.org.in/blog/governance/how-tribal-women-in-india-are-subjected-to-hinduisation-to-be-able-to-access-right-to-inherited-property-87033  (last visited May 20, 2024)

[6] (2023) 3 SCC 528

[7] Rights of a scheduled tribal woman: A lost cause? Vidhi Centre for Legal Policy, https://vidhilegalpolicy.in/blog/rights-of-a-scheduled-tribal-woman-a-lost-cause/  (last visited May 20, 2024)

[8] Women’s land rights in India: What’s missing from our land laws? Times of India Blog, https://timesofindia.indiatimes.com/blogs/developing-contemporary-india/womens-land-rights-in-india-whats-missing-from-our-land-laws/ (last visited May 20, 2024)

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Author: Sumedha Pradhan

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