By Chiranjib Haldar
When custom is effusive, the constitution remains silent and when tradition is silent, the constitution dons the arbiter’s mantle. In a momentous reiteration of statutory principles, the Supreme Court of India has elucidated that the Hindu Succession Act, 1956 does not apply to Scheduled Tribes unless expressly extended to them by a Central Government notification. In a recent ruling, the highest court kept in abeyance a sweeping direction of the Himachal Pradesh High Court which had applied the provisions of the Hindu Succession Act to the states’ tribal communities. In another landmark judgement, the Bombay High Court emphatically reaffirmed that tribal daughters cannot be denied inheritance rights in ancestral property unless a valid custom excluding them is pleaded and proven by those asserting such exclusion. The Court reversed the concurrent findings of the Trial and Appellate Courts, holding that the burden of proving exclusion lies on the sibling asserting it and not the daughter claiming her rightful share.
Both these verdicts endorse the legislative intent of the Hindu Succession Act and emphasise the recognition of tribal customary laws in matters of succession and bequest. The implications of these recent verdicts are far reaching and successive regimes may not have paid heed to legal clarity in protection of tribal customs. They safeguard tribal identity and customs, consistent with a constitutional shield for Scheduled Tribes. It distinguishes that uniform civil laws cannot inevitably supersede traditional governance systems in tribal areas. And that brings us to another moot question: should Parliament decide whether to extend the Hindu Succession Act to Scheduled Tribes albeit with contextual adaptations to poise parity and cultural autonomy?
Another important area to focus on for the legislature ought to be gender justice. While omission of the Hindu Succession Act conserves tribal autonomy, it also raises apprehensions about gender equality. In several tribal societies in Himachal Pradesh and North East India, customary inheritance rules favour male heirs, leaving women reliant on familial measures rather than statutory privileges. The judiciary’s recurrent pleas to Parliament highlight this gap in legal protection. By abnegating the appellate court’s directions, the Supreme Court and Bombay High Court have only upheld the principle that judicial orders cannot override explicit legislative provisions. Simultaneously, the judgments align with evolving jurisprudence advising the Centre to appraise passé prohibitions that may propagate inequality within tribal communities and women’s inheritance rights.
The Bombay High Court has made it amply clear that custom cannot be a smokescreen for patriarchal denial of property rights and where customary exclusion is not substantiated, the default must be equality, not exclusion. A Scheduled Tribe woman from the Gond community had to prove that she had a customary right to inherit property. The Court remanded the matter for a fresh trial, underscoring that the lower courts committed a grave legal error by shifting the burden of proof to the plaintiff.
Equality cannot wait. The judgments reaffirm that even in matters governed by ethnic laws, the Constitution reigns supreme. Himachal Pradesh High Court had directed that daughters in tribal areas of the state should inherit property in accordance with the Hindu Succession Act, 1956 and not by adhering to tribal customs. Under customary inheritance laws in Kinnaur Lahaul-Spiti and Chamba districts, property passes strictly to male heirs. Daughters may become heirs only in the absence of a son and they cannot sell, gift or transfer the property. Once married, ownership reverts to the patrilineal family. The still ubiquitous wajib ul urj law, which came into existence in 1926, bars even widows from inheriting their husband’s property, which is transferred to the sons. Social activists believe these customs perpetuate economic dependency and social inequality for tribal women. A pioneering figure in grassroots governance in Himachal, veteran women’s rights advocate Ratna Manjari has called for an end to this gender bias in tribal property laws.
A balanced legal reform, preserving cultural identity while ensuring gender justice is both feasible and obligatory. Jurists need to comprehend that tribal traditions can evolve without losing their essence. Tribal equality in the far flung districts and hamlets cannot wait for another generation. Barring matrilineal societies, a campaign for tribal women’s right to inherit ancestral property is a concomitant process though hardly covered in mainstream media. In Himachal Pradesh, polyandry is still a part of an ancient tribal custom prevalent in parts of Kinnaur and Sirmaur districts. The state’s revenue laws recognise this practice named jodidara and is accepted under sections 494 and 495 of the Indian Penal Code (IPC). While keeping landholdings undivided was the rationale behind this clandestine practice, the present has more to do with tribal laws of primogeniture varying from region to region.
The recent rulings highlight the subtle equilibrium between tribal autonomy and constitutional equality. The Constitution of India, through Articles 14 and 15, guarantees equality before law and prohibits discrimination. However, the Fifth Schedule and Article 244(1) preserve the distinct customs, traditions and governance systems of Scheduled Tribes. By excluding Scheduled Tribes from the ambit of the Hindu Succession Act, Parliament sought to respect their unique customary laws. But this also means that tribal women may not enjoy the same legacy rights as other Hindu women under Section 6 of the Hindu Succession Act, which grants equal co-parcenary rights to daughters. However certain tribal communities have specific practices and customs of primogeniture both patrilineal and matrilineal. The Supreme Court’s judgment thus reflects judicial restraint and is a synergetic approach. It reiterates the law as it stands while concurrently conceding the need for future legislative review.
Chiranjib Haldar (9831143930) (The writer is a commentator on politics and society.)
