INTRODUCTION
‘Inherent differences’ between men and women, we have come to appreciate, remain a cause for celebration, but not for the denigration of the members of either sex or for artificial constraints on an individual’s opportunity. Sex classifications may be used to compensate women ‘for particular economic disabilities [they have] suffered,’ But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.
- Ruth Bader Ginsburg, United States v. Virginia
Throughout the vast spectrum of countries, cultures, and ethnicities that span our world, a recurring and profound issue has persisted across countless generations: the rights afforded to individuals, particularly women. This pervasive theme has consistently emerged from the ancient mythologies we revere to the governance structures of past civilisations.
In every walk of life, women have faced this systemic bias, from subtle dismissals of their preferences to the outright rejection of their expertise, even when they are demonstrably more qualified. People have faced inequality in all modules of life, and the law replicates what society dictates.
So, while legal frameworks and judiciary have by large attempted to shun patriarchy as a socio-legal reality, certain sections of some statutes have yet to be revised or amended to be more gender inclusive and equanimous. As a result, complete gender equality in laws, even concerning women, remains an elusive concept.
Therefore, absolute gender equality in laws, even with respect to women, is still an elusive concept.
In many tribal societies, the inheritance of property rights follows similar patterns, where women from patrilineal tribes are often excluded from inheriting agricultural land. This inequality is particularly evident among tribal women in Himachal Pradesh, who face significant legal and social barriers to accessing ancestral land.
The case Kamala Neeti v Special Land Acquisition Officers also pertains to such an issue. The issue raised in this case was whether the Appellant, being the daughter, is entitled to the share in the compensation with respect to the land acquired on a survivorship basis under the provisions of the Hindu Succession Act.
The court heard both counsels at length and discussed several previous decisions made by the courts across India. It ultimately concluded that, in this particular case, the Appellant was not entitled to any right of survivorship under the provisions of the Hindu Succession Act.
The significance of the case does not lie in its judgment but in the minority view, which was discussed by Mr Justice K. Ramaswamy. He held in his concurrent judgment that the provisions of the Hindu Succession Act and the Indian Succession Act would apply to the Scheduled Tribes. He further asserted that this was consistent with the general principles contained therein: justice, equity, fairness, justness, and good conscience.
Therefore, it was held by Mr Justice K. Ramaswamy that the Scheduled Tribe women would succeed to the estate of their parent, brother, and husband as heirs by intestate succession and inherit the property with equal share with the male heir with absolute rights as per the general principles of the Hindu Succession Act, 1956, as amended and interpreted by the Supreme Court.
His concurrent judgment raises some pertinent questions: first, can tribal women come under the Hindu Succession Act, and second, does the principle of equity and good conscience apply so that irrespective of customary law, women get inheritance in tribal communities?
In its limited scope, this paper aims to discuss the inheritance rights women in the Himachal Pradesh Tribes have and can potentially enjoy. Part II of this paper explores the qualifications needed for a Schedule Tribes. Part III will have an analysis answering the first issue raised by the concurrent judgment. Part IV of the paper explores the second issue regarding equity and good conscience. Part V will include recommendations and possible solutions, and finally, Part V will offer concluding remarks.
WHO QUALIFIES AS A SCHEDULE TRIBE: CONSTITUTIONAL AND REGIONAL RECOGNITION
A tribe refers to a social group composed chiefly of numerous families, clans, or generations having a shared ancestry and language. According to the 2011 census, the tribal population is 104.3 million, which is 8.6% of the total population in India. India has the second largest tribal concentration in the world, spread across various parts of the country, mainly in forest and hilly regions.
Article 342 of the Constitution of India states that the President of India has the power to specify tribes or tribal communities to be Scheduled Tribes. Furthermore, the Government of India, through its Report of the Commissioner for Scheduled Castes and Scheduled Tribes, asserts that religion holds no bearing in the case of Scheduled Tribes. According to the report, an individual who belongs to a Scheduled Tribe will retain their status as a member of the tribe, regardless of any change in their religious affiliation.
Additionally, Scheduled Tribes are recognised in a manner that is specific to particular regions. For example, the Valmiki community is designated as Scheduled Tribes only within the scheduled areas of Andhra Pradesh. Therefore, the status of being recognised as Scheduled Tribes is not determined by the religion practised by the individuals but rather by the community to which they belong and the geographic region they inhabit. This point is further substantiated by the fact that the inhabitants of the Laccadive, Minicoy, and Amindivi islands, whose parents were both born on these islands, are recognised as Scheduled Tribes, although they are Muslim by religion. Similarly, in the North-Eastern states of India, communities that profess Christianity are also included in the list of Scheduled Tribes.
INHERITANCE RIGHTS OF TRIBAL WOMEN UNDER CUSTOMARY LAW
Tribal communities under Schedule V and VI adhere to customary laws for succession. Customary law is the habitual conduct of a society, shaped by its norms, practices, and traditions. It encompasses acceptable and unacceptable behaviour guidelines enforced through mechanisms like taboos, sanctions, social rituals, cultural values, public opinion, and individual ethics. These elements collectively regulate and restrain societal behaviour patterns.
The Indian Constitution guarantees protection to the Scheduled tribes to let them develop their own laws according to their own genius. In jurisprudence, an immemorial custom is not merely an adjunct of ordinary law but is also its constituent part. In this thinking, the unwritten tribal customary laws recognised as binding by their communities interact with the larger corpus of the law enacted and enforced by the formal State. However, this interaction often overlooks their role in maintaining tribal solidarity and identity.
In cases where tribal inheritance rules are documented, there is often no explicit prohibition against women inheriting or transferring ancestral property. The burden of disproving an ST woman’s right to ancestral property, thus, rests on the party asserting that tribal customs do not mandate it.
SCOPE TO INCLUDE TRIBAL WOMEN IN THE HINDU SUCCESSION ACT
Under the first issue recognised through the concurrent judgment of Mr Justice K. Ramaswamy, can tribal women come under the Hindu Succession Act? The judiciary has extensively debated this issue and proven that only under certain circumstances can Tribal women rely on the Hindu Succession Act for inheritance rights.
The Hindu Succession Act, in its section 2(2), states that nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs. Moreover, according to Section 3 of the Indian Succession Act, the states have the power to exclude ST. Therefore, this leaves non-identifying STs to rely on their customs, which ultimately perpetuates a patriarchal structure that favours the male lineage.
However, the Judiciary has previously relied on the Hindu Succession Act to ensure the inheritance rights of tribal women. The Chhattisgarh High Court provided this judicial innovation in Butaki Bai v Sukhbati. In this case, the judiciary innovated a concept known as the ‘test of Hinduisation’. Under this test, the High Court established two requirements that need to be fulfilled so that tribal women can qualify to avail the benefit of the Hindu Succession Act. To avail of the benefits, a tribal woman would have to prove “(i) the plaintiffs pleading they have abandoned their law of origin (customary law) has to plead and establish by leading appropriate legal evidence that they have given up their customary succession, and (ii) to establish further that they have become “Hindus out and out” or “sufficiently Hindus” to be governed by in matter of succession and inheritance by any school of Hindu law, and thereafter to prove.”
Subsequently, several Courts across India have held that when tribal communities have voluntarily adopted Hindu rites and customs, exclusion of them from the ambit of Hindu law post then would be unjustifiable.
For instance, in Labishwar Manjhi vs Pran Manjhi and Ors, the Supreme Court held that when the evidence disclosed that parties belonging to the Santhal tribe were practising Hindu customs and not that of the Santhals, then the provision of the Hindu Succession Act would apply concerning the inheritance of property.
The Himachal Pradesh High Court has similarly held that daughters in the tribal areas in the state of Himachal Pradesh should inherit the property in accordance with the Hindu Succession Act, 1956 and not as per their customs and usages. The Court held in Kartick Oraon v. David Munzi that a person’s Scheduled Tribe status for inheritance is not lost if they convert to Christianity.
PRINCIPLE OF EQUITY AND GOOD CONSCIENCE FOR INHERITANCE RIGHTS
In the Kamala Neeti case, the question of equity was raised by the counsels of both parties. The Appellant placed reliance on the minority view in Madhu Kishwar vs the State of Bihar, wherein it was observed that the provisions of the said Act would apply to female members belonging to a Scheduled Tribe and the general principles contained therein being consistent with justice, equity, fairness, justness and good conscience would apply to them.
The learned counsel appearing on behalf of the contesting Respondents placed reliance on a previous judgment of the Supreme Court and submitted that when there is a conflict between the law and equity, the law will prevail. The bench agreed with this and remarked that although they were with the Appellant on equity, equity cannot supplant the law. It was held that the law will prevail when there is a conflict between the law and equity.
However, Mr Justice K. Ramaswamy, in his concurrent judgment, stated that based on justice, equity, fairness, justness and good conscience, Scheduled Tribe women would succeed to the estate of their parent, brother, and husband as heirs by intestate succession. Thus, through his judgment, it can be held that the rule of golden interpretation can be adopted, and the negative interpretation depriving equal rights, which are otherwise guaranteed under the constitution to the tribal women, should not be adopted. Once again, like the judgment that the Appellant relied on, this was a minority view.
The Supreme Court has previously held that public policy and Constitutional philosophy envisaged under Articles 38, 39, 46 and 15(1) & (3) and 14 is to accord social and economic democracy to women as assured in the preamble of the constitution. Thus, they constitute the core foundation for economic empowerment and social justice for women for the stability of political democracy. This Court further held that the customs must undergo change as well to protect the interests of a person, and to do so, the law must adapt itself to the changing needs of society.
However, as pointed out in the Kamala Neeti case, the role of amending the exemptions under the Hindu Succession Act in so far as the applicability of the provisions of the Hindu Succession Act to the Scheduled Tribes and whether to bring a suitable amendment or not lies with the Central Government.
The Law Commission of India often plays a key role in supporting recommendations on various legal issues, including those related to women’s rights and gender equality, as seen in its 81st, 133rd, and 247th reports. However, even these reports fail to fully address the complex social dynamics within tribal communities, especially regarding the widespread loss of tribal lands and the impact on tribal women.
The judiciary cannot deem the exemption to be unlawful, as it was established to safeguard the customs of Scheduled Tribes that govern the inheritance of ancestral property. The statute intended to give tribal communities the opportunity to follow their customs and practices in matters of inheritance. However, the golden rule of interpretation indicates that tribal women are not entirely excluded from inheritance rights. When these customs are uncertain or ambiguous, the Hindu Succession Act should be applied to ensure fairness and equality, granting tribal women an equal share in inheritance.
Therefore, relying solely on the principles of equity and good conscience, the judiciary cannot universally extend inheritance rights to tribal women under the Hindu Succession Act without regard to the specific customs of each tribe.
RECOMMENDATIONS AND POSSIBLE SOLUTION
Although the distinct identity of the tribe is safeguarded under the Fifth and Sixth Schedules of the Constitution, which grants them specific privileges and ensures the preservation of their traditional way of life, there is no distinct code that tracks the movement of the tribes. This was noticed by the decrease in tribal population in Jharkhand from 38.3 per cent in 1931 to 26.02 per cent in 2011. However, the report suffered from the flaw that tribal members who move for employment are not included in the Census. Thus providing potentially flawed statistics.
Moreover, the 2011 Census revealed that more than fifty lakh tribal people across the country identified their religion as ‘Sarna,’ which has not even been officially recognised as a distinct category. As established above in the paper, tribal people have a distinct way of life, differing not only through religious practice and thoughts but also customs and culture. Therefore, the possible solution proposed is the demand for a separate legislation for the purpose of not only governing their succession laws but also other personal laws.
This demand for a separate tribal code to govern the personal laws of the Sarna tribal community is not novel in the sense that it has been raised by many activists and tribal leaders as well throughout history. However, the Union Government has never taken any steps in this regard.
The codification of a separate tribal legislation must be undertaken through comprehensive consultation with the tribal community and relevant stakeholders. Additionally, the legislation should carefully balance equity considerations and universal rights, such as those enshrined in CEDAW. It should be done with due regard to the cultural norms of tribal women in India.
CONCLUSION
In conclusion, despite 70 years of independence, the realisation of equal rights, particularly for tribal women, remains an unfulfilled aspiration. The Kamla Neeti case, as discussed in this paper, serves as a stark reminder that while inheritance rights for tribal women should be granted in accordance with principles of justice and fairness, they remain unattainable due to the explicit exemption provided under Article 2 of the Hindu Succession Act.
The case involved a thorough discussion of inheritance rights through the principle of equity and ultimately ruled that equity cannot prevail over law. Although minority views of various Judgments have held on the principle of equity and good conscience, tribal women should get an inheritance in light of the Hindu Succession Act; this has never been held in dissenting opinions or as a majority view. Moreover, since equity cannot prevail over law, the paper agrees that solely on the principle of equity, tribal women cannot get inheritance under the Hindu Succession Act.
The possible solution lies in codifying separate tribal laws that balance the cultural norms of these communities with the universal principles of gender equality, ensuring that tribal women are not left behind in the pursuit of social justice. This requires active engagement from the legislature, comprehensive consultation with tribal communities, and an acknowledgement that societal laws must evolve to reflect the changing needs and aspirations of all citizens, especially marginalised groups like tribal women.
(This post has been authored by Anushree Jagnania, a 2nd-year student pursuing a B.Sc. LLB. (Hons) program at WB NUJS, Kolkata.)
CITE AS: Anushree Jagnania, ‘GENDER ROLES AND INHERITANCE RIGHTS IN INDIAN TRIBES: INSIGHT FROM KAMLA NETI V. SPECIAL LAND ACQUISITION OFFICER’ (The Contemporary Law Forum, 12 April 2025) <https://tclf.in/2025/04/12/gender-roles-and-inheritance-rights-in-indian-tribes-insight-from-kamla-neti-v-special-land-acquisition-officer/>date of access.