Redefining Tribal Women’s Inheritance Rights

Transformative Constitutionalism seeks to harmonize fundamental rights with customary practices. Analyse this statement with reference to tribal women’s inheritance rights. 250 Words, 15 Marks (GS-2, Social Justice)

Context:

  • The question of women’s inheritance rights in tribal communities remains unresolved. Most tribal customary laws deny women absolute rights over property.
  • Moreover, the Hindu Succession Act, 1956, which grants daughters equal rights in ancestral property, does not apply to Scheduled Tribes, thereby excluding tribal women from its protection.
  • However, recently, the Supreme Court of India has dealt with cases concerning inheritance rights of tribal women. In some instances, it granted rights to those who had adopted Hindu customs (“Hinduisation”), while in others it upheld their exclusion based on statutory exemptions. This inconsistent approach has created legal uncertainty for tribal women whenever questions of inheritance arise.

Background: The Hindu Succession Act and Tribal Exclusion

The primary legal hurdle for tribal women lies in the statutory architecture of the Hindu Succession Act (HSA), 1956.

  • The Scope of Section 2(1): This section defines the applicability of the Act to anyone who is a Hindu by religion or falls under the broad category of “Hindus” (including Buddhists, Jains, and Sikhs). Historically, courts often used this section to “bring in” tribal individuals who had adopted Hindu customs, a process known as “Hinduisation.”
  • The Overriding Effect of Section 2(2): Crucially, Section 2(2) acts as a proviso, stating that notwithstanding anything in Section 2(1), the Act shall not apply to any Scheduled Tribe within the meaning of Article 342 (which empowers the President to specify tribes or tribal communities as Scheduled Tribes, thereby providing them a distinct legal status separate from the HSA), unless the Central Government specifically notifies otherwise in the Official Gazette.
  • The 2005 Amendment: The Hindu Succession (Amendment) Act, 2005 granted daughters equal coparcenary rights (the legal right to be a joint heir to ancestral property from birth, enjoying the same rights as sons to claim partition and ownership).
    • However, because of Section 2(2), these benefits did not extend to tribal women. This has created “invidious discrimination,” where a non-tribal woman enjoys statutory property rights while a tribal woman in the same region is left to the mercy of restrictive customs.
  • Resultant Vacuum: In the absence of statutory law, succession is governed by un-codified customary practices. These are frequently patrilineal, aiming to keep land within the male lineage to prevent “alienation” to outsiders through marriage.

Defining ‘Hindu’ and the “Hinduisation” Critique

The term “Hindu” lacks a rigid definition, encompassing diverse practices rather than a singular creed, which has historically complicated tribal legal status.

  • Broad Judicial Interpretation: In Sastri Yagnapurushadji v. Muldas Brudardas Vaishya (1966), the Supreme Court famously described the Hindu religion as a “way of life” that does not claim any one prophet, worship one God, or subscribe to a single dogma or set of rites.
  • The Mechanics of Identity: A person can be a Hindu by birth or through bona fide conversion, which requires a clear intention and unequivocal conduct.
    • A converted person remains a member of their tribe unless they and their ancestors have long abandoned tribal customs, including customary laws of marriage and inheritance.
  • Implications for Tribals: Previously, courts broadened Section 2(1) to include tribes by arguing they weren’t “expressly excluded” there. However, this contradicted Section 2(2) and forced tribal women into a coercive choice: abandon their indigenous identity to become “Hindu” for the sake of economic rights, or retain their identity and remain landless.

Landmark Judicial Interventions: A Shift in Jurisprudence

Recent verdicts have reframed the debate by applying the principles of Transformative Constitutionalism to the traditionally insulated sphere of tribal customary law.

  • The Principle of Equality (Ram Charan v. Sukhram, 2025): The Court recognized that excluding daughters from ancestral property violates the fundamental right to equality under Article 14 and the prohibition of discrimination under Article 15(1). It emphasized that biological differences should not be a basis for denying succession and that in the absence of codified law, principles of justice, equity, and good conscience must apply to grant women their share.
  • Reaffirming Jurisdictional Boundaries (Nawang v. Bahadur, 2025): A Bench of Justices Sanjay Karol and Prashant Kumar Mishra overturned a Himachal Pradesh High Court order that had granted rights to ‘Hinduised’ tribal daughters. The Supreme Court clarified that the judiciary cannot overstep its jurisdiction to “legislate” by extending the HSA to tribes; that power rests solely with Parliament.
  • Protecting Indigenous rubric: The Court affirmed that tribal inheritance remains governed by the customary practices of the community unless the Central Government officially intervenes. This ruling ended the inconsistent practice of granting rights based on “Hinduisation,” which had previously created legal uncertainty and forced a choice between tribal identity and property rights.

Strategic Significance: Why This Matters

The rethinking of tribal inheritance is not merely a legal technicality; it has deep socio-economic implications for the progress of indigenous communities:

  • Economic Empowerment: Establishing property rights provides tribal women with collateral for credit, enabling entrepreneurship and financial independence. It creates a robust safety net against poverty and mitigates the risk of domestic vulnerability by ensuring shelter and land security.
  • Social Justice and Equity: Correcting this legal exclusion dismantles the “second-class citizen” status of tribal women compared to their non-tribal counterparts. It fulfills the constitutional promise of Substantive Equality, where justice is determined by outcomes rather than just formal procedures.
  • Integration without Assimilation: By advocating for a separate law rather than a forced merger into the HSA, the state acknowledges that equality can—and should—exist within the framework of Cultural Pluralism. It allows tribes to modernize their internal structures without losing their unique identity.

Multidimensional Challenges: The Roadblocks to Reform

Despite judicial nudges, several hurdles persist in the transition to a gender-just inheritance system:

  • Land Alienation Paradox: Communities resist female inheritance under Fifth/Sixth Schedules fearing exogamous marriages transfer land to non-tribals, as Chhotanagpur customs (reinforced by CNTSP Act, 1908) mandate Khandan-male succession to safeguard communal land bases.
  • Orality-Legal Uncertainty: Uncodified customary laws allow patriarchal elites to manipulate interpretations, with Article 371A (Nagaland) enabling village-specific variations that burden women with proving “ancient and certain” usage per Madhu Kishwar (1996).
  • Patriarchal Inertia: Land is entrenched as a male lineage preserve, compelling women to relinquish High Court-won shares (e.g., Santhal cases) under social coercion for “familial harmony,” violating Article 21 dignity amid NCRB-tracked violence surges.
  • Jurisdictional Limbo: While Ram Charan (2025) affirms equity-based equality, Nawang (2025) prohibits HSA extension, stranding tribal women in a statutory void dependent on Parliamentary action to fulfill Article 39(b)-(c) resource equity.
  • Implementation DisparitiesPatrilineal dominance in tribes like Gonds and Oraons, coupled with illiteracy and remoteness, undermines PESA Gram Sabha enforcement; Mizoram‘s codification contrasts mainland inconsistencies, encouraging forum shopping.
  • Lingering Jurisdictional Dilemma: While Ram Charan case established the moral and constitutional right to equality, Nawang case restricted the judicial path to achieving it. This leaves tribal women in a state of legal limbo: they are entitled to equality in theory, but cannot claim it through existing statutes like the HSA, leaving the resolution entirely dependent on legislative will.

Way Forward: Bridging the Parity Gap

To resolve tensions between Constitutional Morality and Customary Autonomy, a structured multi-pronged strategy is essential, harmonizing tribal identity with gender equality through legislative, judicial, and policy innovations.

  • Codification on Mizoram Model: States with significant Scheduled Tribe populations (e.g., Jharkhand, Odisha, Chhattisgarh) must codify succession laws, emulating Mizoram’s framework where daughters receive shares while safeguards like youngest son’s elder-care premium prevent land alienation to non-tribals and preserve matrilineal elements.
  • Parliamentary InterventionHindu Succession Act (HSA), 1956 cannot be judicially extended per Nawang v. Bahadur (2025); Parliament should enact a dedicated Tribal Succession Act mirroring HSA’s equality provisions (post-2005 coparcenary rights) but customized to tribal land-holding patterns under FRA, 2006 and PESA, 1996.
  • Institutional Strengthening: Empower National Commission for Scheduled Tribes (NCST) and Tribal Advisory Councils for custom audits, gender sensitization, and awareness campaigns; establish fast-track tribal inheritance courts integrated with e-Courts for rural access.
  • Policy Synergies and Monitoring: Link reforms with Forest Rights Act (2006) titling and PESA (1996) Gram Sabhas via mandatory gender audits; launch SHG-led land pooling initiatives; mandate annual Ministry of Tribal Affairs reports to Parliament tracking tribal women’s property ownership metrics.

Conclusion

The rethinking of tribal women’s inheritance rights is a step toward substantive equality. By moving beyond the binary of “Hinduisation” and acknowledging that Articles 14 and 15 apply to every citizen, the Indian legal system can finally bridge the gender parity gap. True empowerment lies in a framework where a tribal woman does not have to sacrifice her identity to claim her rightful share of ancestral dignity.