The Deep Struggle For Equality In Tribal Succession Practices Of North East India

Inheritance Patterns and gender dynamics: North eastern states:

Arunachal Pradesh:

The tribals of Arunachal are dominantly patrilineal and sons are pivotal inheritors with the responsibility passing to the nearest male relative in their absence. Women are systematically excluded from inheriting immovable property. This practice raises questions about gender equality within the region's inheritance norms. Delving into few of the practises

CPR-Dependent Jhum Cultivation:

Many tribes engage in Community Forest Resource (CPR) dependent jhum cultivation. While inheritance follows the male line, women actively manage family sustenance through involvement in jhum cultivation. This highlights their significant contribution despite limited ownership rights

Polygamous Practices and Gender Hierarchy:

Polygamy, particularly among village leaders, introduces a hierarchical structure among women. Senior wives often have more rights, creating complex dynamics within these marital arrangements.. However, practices like polygamy, particularly among leaders, introduce complex gender hierarchies within families

Gallong Community Dynamics:

Specific dynamics within the Gallong community involve granting rights to girls until they become mothers. Land inheritance is exclusive to sons, and daughters receive gifts based on the bride price. Daughters do not inherit land directly but may receive gifts based on the bride price – a practice that underscores their value within the marriage system.

Minyong Inheritance Patterns:

Among the Minyong tribe, sons are the primary inheritors of land. The man typically selects the jhum (shifting cultivation) plot, and the woman assumes responsibility for it. In terms of movable property, items such as beads, utensils, implements, silver ornaments, and sometimes livestock are considered the personal belongings of women. Generally, these possessions are inherited by the woman's daughters and daughters-in-law. Hence Minyong tribes do not make the women inheritors of land however gives some rights over movable property.

Hill Miri Women's Inheritance Rights:

Hill Miri women lack the right to inherit land or immovable property.

Traditionally, girls are granted certain rights over private property or money and may become temporary owners until marriage.

Widows, not separated from in-laws, retain rights over their deceased husband's property.

In the case of divorce, the woman is entitled to an equal share of the property acquired during the conjugal life.

Apatani Women's Inheritance Practices:

Apatani women cannot inherit immovable property despite significant contributions to the household.They inherit a share of the tasang-tavine (beads and gem string) from their mother.

Chakma Inheritance Dynamics:

Among the Chakma, only sons inherit land, even though women actively engage in cultivation.

Nishi Customary Law:

Nishi customary law excludes women from ownership and inheritance.

The Bangi branch allows the first wife a say in inheritance but excludes daughters from owning or inheriting clan property.Daughters, however, have full ownership of ornaments, utensils, and gifts received at marriage.

Sherdukpen Women's Economic Freedom:

Sherdukpen women lack claims over immovable property but can independently rear poultry or keep cattle.They have the freedom to sell these assets and retain the proceeds for personal use, granting them economic status.

Monpa Traditions:

Monpa traditions generally do not allow women to inherit landed property. Exceptions exist when parents have only daughters, showcasing a partly gender-sensitive approach within their tradition.

Tribes of Assam

Assam has a relatively small tribal population. Most of its tribes are patrilineal. Delving into the customs of the tribes;

Rabha Tribe Inheritance Practices:

Rabha, a tribe in Assam, exhibits both patrilineal and partly matrilineal traditions. Traditionally, the youngest daughter inherited a lion's share of her mother's property, while other daughters shared the remainder equally. Managerial control over land, however, remained in the hands of men. Changes favouring men have emerged due to closer contact with neighbouring populations and the influence of dominant cultures.

Deori Inheritance Norms:

Among the Deori tribe, sons inherit their father's property. In the absence of sons, the property passes to the nearest agnatic male relative.

Lalung Matrilineal System:

The Lalung tribe follows a matrilineal tradition with men as family heads.

Daughters inherit the house, land, and family heirloom, while the husband assumes the managerial role. Each daughter establishes a new household, with the eldest inheriting the house and others receiving agricultural land and a site for their own house. Marrying outside the tribe results in the loss of inheritance rights for Lalung women.

Mishing Inheritance Customs:

Among the Mishing, if a man has no sons, his daughters may share his property and bear funeral expenses.

Bodo Tradition and Male Preference:

The Bodo community shows a preference for male heirs, with sons inheriting property. Despite male preference, women receive due status and respect within the family. The eldest son gets a bigger share of property in view of his responsibilities. He assumes charge of the

house after his father's death and fulfils his duties in consultation with his mother. Unmarried sons living in the family get double the share of what the married sons get who stay separately

Karbi Patrilineal and Patriarchal Practices:

Daughters are excluded from inheriting their father's property. In the absence of a son, the nearest male relative inherits the property. Widows can retain property by marrying into the husband's clan but lose rights if remarrying outside the clan.

Village councils, in some cases, insist on adherence to these customs, even against administrative perspectives.

The Manipur Tribes

Kuki Inheritance Practices:

Among the Kuki community in Manipur, if a man is childless, his nearest relative inherits the immovable property.

Kabui Naga Customs:

In the Kabui Naga tribe, the youngest son is designated to inherit his father's property.

Tangkhul Naga Tradition:

The Tangkhul Naga community follows patrilineal lineage , but the division of immovable property among all sons is common, with the eldest receiving a larger share.

Mao Patrilineal System:

The Mao tribe adheres to patrilineal customs, but the eastern Mao occasionally provide a terrace rice field to daughters to support the beginning of their married life.

Inheritance Variations at Jessami and Laiyi:

In Jessami, the youngest son receives the house and the best movable property, while other brothers share equal portions.

At Laiyi, the eldest sibling receives half, and the rest divide the remaining half. If only girls are there to inherit, the clan (sagei) takes a share.

Property Division in Liyai:

In Liyai, sons share the property equally, and girls receive a share of domestic items. In the absence of male heirs, girls share the property , but the house is reserved for the eldest surviving paternal uncle of the deceased. This reservation of house in absence of male heirs upon the paternal uncle shows patriarchal structure. Single daughters get a share and a widow if she remains unmarried.

The Matrilineal Tribes of Meghalaya

Despite enjoying a relatively better status than in patrilineal societies, women in Garo, Khasi, and Jaintia tribes still face inequality compared to men.

Khasi community

In the Khasi community, the youngest daughter holds the position of heiress and is associated with agricultural work, considered the "goddess of the house" and the "guardian spirit of the house." The other sisters leave the house after marriage and her husband is the head of the family.

Men in Khasi society traditionally assume roles as warriors, protectors, tillers, administrators, and priests, representing the family in society. Women take on the role of running the family.

The matrilineal structure is symbolized through customs like placing an arrow on white cloth during a boy's naming ceremony, signifying men's roles. Women's roles are depicted in tools like "ka khoh" (sling basket) and "u star" (rope for carrying it).

The youngest daughter, known as Khadduh, shoulders responsibilities as the guardian of family property and custodian of its religion, overseeing family ceremonies and assisting in religious rites.

However, in practice, the control over her property lies with maternal uncles and brothers, and she lacks full control or rights to sell property without their consent.

Jaintia women:

Similarly, matrilineal Jaintia women are responsible for family affairs, child-rearing, and education, with men primarily involved in decision-making on crucial matters like property transactions, cultivation, trade, and business. Despite the matrilineal descent system, women in both Khasi and Jaintia tribes act as custodians rather than having equal power and control over family wealth

Mizo Customary Law Codification:

The Mizo tribes stand out as a unique case in the Northeast, having codified their customary law in 1957 through the publication of "Mizo Hnam Dan," which outlined the key principles of inheritance.

The codification encompassed two inheritance systems, Lushai and Lakher, providing a structured framework for legal heirs.

Principles of Inheritance:

The codified rules dictate that the nearest male relative of the deceased becomes the legal heir. The torch of ownership is primarily passed down the male line, with the youngest son prioritized among siblings. Brothers and even distant male relatives take precedence over daughters, effectively leaving them out of the inheritance picture unless no male kin remain.

Preference for Youngest Daughter:

Notably, in cases with multiple daughters, the youngest daughter is given the first preference, mirroring the preference given to the youngest son among male heirs.

Widow's Rights and Responsibilities:

The codification addresses the rights and responsibilities of widows, emphasizing that if a man's wife and children can sustain themselves, they should not be disturbed. The widow is entrusted with the care of the deceased's property and children, especially if she has unmarried or divorced daughters or granddaughters living with her.

Special Cases and Exceptions:

Certain circumstances allow for specific inheritance scenarios. For instance, a woman for whom the husband's family has paid a bride price may inherit property in her own right.

In cases where a man has no male heirs, his daughter, and failing that, his widow, inherit his property. If the widow remarries someone other than his brother, the property and children's care transfer to the brother.

Lushai and Lakher Distinctions:

Under the Lushai system, if a man leaves behind only minor sons and a widow, a close male relative steps in to manage the property until a son reaches adulthood. Inheritance by women is generally restricted, with exceptions for daughters or widows in the absence of other heirs.

In the Lakher system, the eldest son primarily inherits the father's property but often shares it with the youngest brother. Sons in the middle, daughters, or the widow typically receive no share. In the absence of sons, the property goes to the eldest and youngest brother of the deceased.

Legacy of Customary Rules:

The codified customary laws reflect the intricate dynamics of inheritance and succession within the Mizo tribes, showcasing a balance between tradition and adaptation to evolving familial structures.

Tribes of Nagaland

In the context of tribal societies in Nagaland, particularly among the Lotha, Konyak, Sema, and Zeliangrong tribes, the inheritance patterns and property rights exhibit distinct gender dynamics. Despite cultural variations, common themes emerge regarding the limited inheritance rights of women, especially concerning immovable property.

Lotha Tribe;

Lotha women lack rights over land categorized as village, clan, or family property. Family land is inherited by sons, and in the absence of heirs, it reverts to the nearest male relative. Women inherit personal belongings such as clothes, ornaments, and weaving looms. Unmarried sons and daughters may receive land as a gift during marriage or through parental will.

Konyak Tribe:

Polygamous Konyak men marry only once, and divorce is common, though fines may be imposed.

Inheritance follows the wishes of the eldest son, and daughters may receive land as a gift to avoid disputes. Widows are entitled to a third of their husband's movable property, with varying conditions.

Sema Tribe:

A Sema widow is entitled to a portion of her husband's movable property. Unmarried widows may receive free labor as a courtesy for a limited period. Inheritance practices vary, with the youngest son often inheriting the house and its contents.

Zeliang

Zeliangrong women are denied say in social affairs but manage family responsibilities. Despite their role in the family, women lack inheritance rights, and the nearest male relative inherits property. Unmarried women may enjoy possessions obtained during their maidenhood

Pochury Tribe:

Pochury tribal girls inherit no land, but fathers can gift it to daughters at marriage. If a daughter dies childless, the land reverts to her kin.

A widow is entitled to maintenance from her husband's property until her remarriage or death. Sons receive their share at marriage, with the eldest getting a larger share for performing the father's death rituals.

Northern Rengma Group:

Women and their husbands can cultivate the parents' land for a limited period but lack inheritance rights.

A father can gift a field to his daughter, but without the right of inheritance.

Sons inherit men's possessions like weapons, while women inherit ornaments.

Ornaments of a woman without heirs go to her husband, and those of unmarried women go to the father.

Western Rengma Group:

Each son in the western Rengma group builds a house at marriage.

Upon the husband's death, the widow retains the house until her death or remarriage, with the ability to use movable property but not sell it.

The youngest son inherits the house and its contents, with specific items going to the eldest son. In the absence of sons, the property may revert to the eldest son of the widow. Land may be gifted to a daughter during the father's lifetime but cannot be sold. After her death, it reverts to the father's nearest male heir.

Eastern Rengma Group:

In the Eastern Rengma group, a shift to a new house occurs when the eldest son brings his wife to his father's house. On a man's death, the widow has a life-interest in his movable property, and upon her death, possessions go to the eldest son. Land gifted to a daughter during the father's lifetime reverts to the father's heirs upon her death.

Tribes of Tripura

General Tripura Tribes:

Male inheritance is the norm among all Tripura tribes. Widows are entitled to enjoy the benefits of their deceased husband's property until remarriage or death. In the absence of male heirs, the nearest male kinsman inherits the land. Girls typically do not inherit paternal property, but fathers may gift some during their lifetime.

Reang Tribe:

Sons exclusively inherit immovable property.

Personal belongings of the mother are inherited by her daughters.

Acquisitions made by a son or his wife become part of the family common pool.

Jamatia Tribe:

Sons inherit property, with the eldest often receiving a preferential share. Daughters inherit equal shares only if the man has no sons.

Widows enjoy the benefits of their husband's property but do not inherit it.

Halam Tribe:

Sons inherit their father's property, with the eldest son receiving a larger share. In the absence of a male heir, property goes to the nearest male relative. Some fathers gift property to their daughters during their lifetime to circumvent inheritance rules.

Other Patrilineal Tribes (Khakloo, Tipra, Noatia, Uching, Riang):

Property is divided equally among sons.

Chakma Tribe:

Parental property is divided equally among sons.

Adivasis

Adivasis means indigenous people. Nearly 8 percent of Nation's population comprise of Adivasis. They are patriarchal and patrilineal. Inheritance is through the sons. Some parents

without sons adopt a boy usually their near kin to reside with them and inherit their property.

Aka tribes

The Aka community exhibits a patriarchal structure where women are excluded from inheritance of ancestral property. Despite this, there are limited inheritance rights accorded to women within their traditional practices. In this patriarchal framework, immovable property is inherited solely by men, while women receive ancestral ornaments such as rings, lockets, beads, necklaces, valuable brass plates, wristlets, and, in some cases, domestic animals upon leaving home after marriage. The widow, however, does have rights over her deceased husband's property as long as she remains alive and chooses to reside with his family. In this role, she acts as the guardian of the property and eventually passes it on to her sons. If she does not have any sons, the property is typically taken over by the husband's brothers or his nearest relatives.

Angamis:

In Angamis community, sons inherit land and the family home, following specific rituals like the youngest inheriting the house and the eldest receiving the best plot. However, daughters' inheritance rights are more restricted, primarily encompassing acquired property. Interestingly, in the absence of male heirs, the property can pass to a male relative who performs the funeral rites, though daughters have a chance to inherit by offering a symbolic payment. This system highlights the deeply ingrained patriarchal structure within the Angami community, while also leaving room for women by giving space to unmarried women. Unmarried women can build their own house and cultivate part of the ancestral field for self-sustenance. Additionally, they may receive a terrace field as a gift, granting them lifetime use or even full ownership. Notably, brothers or clan members cannot claim this gifted land. Upon the woman's death, she has the autonomy to decide the fate of the property although brothers, their children, or caretakers often become the recipients. Widows retain rights of living at her husband's house, manage his property, cultivate land, gather and store grains, sell the surplus, as long as they stay in the husband's house, but childlessness can alter this dynamic. In such cases, returning to the parental home offers greater security, as the husband's family might covet the property that rightfully belongs to the widow and her children.

My view on tribal dynamics of succession practices :

After going through the tribal practises in inheritance and succession it is seen that despite the prevalence of patrilineal inheritance in many tribal communities, some offer glimpses of security for women. However, complete ownership and equal property division remain elusive, raising concerns about gender equality within these communities. This limited access to land and resources not only restricts women's autonomy but also hinders their ability to contribute fully to tribal development and decision-making. Considering the above tribal practises it is observed that even within the matrilineal Khasi community, a nuanced examination reveals that control and decision-making power predominantly lie with men. In contrast to the Khasi, who follow a matrilineal system, the overall trend across the North-eastern tribes remains predominantly patrilineal. This stark comparison underscores the pervasive dominance of male-centric norms and values within the societal fabric. The disparity in women's entitlement to equal rights, regardless of the specific inheritance system in place, underscores the deeply ingrained influence of a male-dominated societal structure. Customary practices often perpetuate gender imbalances, reflecting the broader challenges faced by women in asserting their rights and achieving equitable status in communities where traditional norms continue to shape social dynamics

Judicial decision and perspective

The legal framework plays a pivotal role in shaping societal norms, and the judiciary plays a significant role in navigating the delicate balance between cultural preservation and the pursuit of justice and equality.

The Hon'ble Apex Court in Madhu Kishwar v. State of Bihar^[1] , the Apex Court considered the constitutional validity of sections 7, 8 and 76 of the Chhota Nagpur Tenancy Act. The contention was that the customary law excluding tribal women from inheritance of land or property is discriminatory and ultra-vires Articles 14, 15 and 21 of the Constitution of India. The Apex Court, by the majority judgement, refrained from striking down the provisions of the said Enactment on the touchstone of Article 14 of the Constitution of India although the exclusive right of male succession conceived of in section 7 and 8 was directed to remain in suspended animation so long as the right of livelihood of the female descendant of the last male holder remains valid and in vogue.

The majority judgement in Madhu Kishwar articulates the reason for refraining from judicially intervening thus:

“48. In face of these divisions and visible barricades put up by the sensitive tribal people valuing their own customs, traditions and usages, judicially enforcing on them the principles of personal laws applicable to others, on an elitist approach or on equality principle, by judicial activism, is a difficult and mind-boggling effort. Brother K. Ramaswamy, J. seems to have taken the view that Indian legislatures (and governments too) would not prompt themselves to activate in this direction because of political reasons and in this situation, an activist Court, apolitical as it avowedly is, could get into action and legislate broadly on the lines as suggested by the petitioners in their written submissions. However, laudable, desirable and attractive the result may seem, it has happily been viewed by our learned brother that an activist court is not fully equipped to cope with the details and intricacies of the legislative subject and can at best advise and focus attention on the State polity on the problem and shake it from its slumber, goading it to awaken, march and reach the goal. For in whatever measure be the concern of the court, it compulsively needs to apply, somewhere and at sometime, brakes to its self-motion, described in judicial parlance as self restraint. We agree therefore with brother K. Ramaswamy, J. as summed up by him in the paragraph ending on page 36 of his judgment that under the circumstances it is not desirable to declare the 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”

A learned Single Judge of the Himachal Pradesh High Court in Bahadur v. Bratiya^[2] held that after holding that the material placed on record did not prove the custom in the Gaddi tribe of exclusion of daughters from right in property, has observed in paragraph 39 of the report that even if it is assumed arguendo, that such custom does exist, the same would be in derogation of section 4 of the Succession Act. The learned Single Judge of the Himachal Pradesh High Court then 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. The ultimate conclusion reached by the learned Single Judge is 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 Constitutional Provisions

Constitutional philosophy underlying Articles 15, 21, 38, 39 and 46 of the Constitution of India and the principles of justice, equity and good conscious, reference to the said Constitutional provisions would be in order- Article 13(1) declares that the pre-constitutional laws, to the extent of inconsistency with the fundamental rights shall, be void. Law includes custom or usage having the force of law. Article 14 strives at ensuring equality before law and strikes at arbitrariness and invidious discrimination. Discrimination on the ground of sex is prohibited by Article 15(1) and what is saved under Article 15(3) is the right of the State to positively discriminate in favour of women, the avowed object being to ensure that the social, economic and political disparity and injustice is obliterated. Article 21 articulates that no person shall be deprived of his life or personal liberty except according to procedure established by law. Width and amplitude of right of life is totally transformed by virtue of judicial pronouncements and an important facet of the right guaranteed is the right to live with human dignity. Part IV of the Constitution of India contains set of principles, called directive principles, which although not enforceable by court, are paramount in the governance of the country and which the State is under duty to apply in making laws. Article 38 emphasizes the duty of the State to strive to promote the welfare of the people by securing for all justice social, economic and political and to eliminate inequalities in status, facilities and liberties. Article 39 directs the State to ensure, interalia, that all the citizens, men and women equally, have the right to adequate means of livelihood. Article 46 speaks of the duty of the State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation.

Special reference to Schedule VI of the Indian Constitution:

Evolution of tribal administration in north east region

The administration of tribal regions in the North East has undergone a distinctive historical evolution, particularly shaped by British colonial policies. The initial significant administrative policy, the Bengal Eastern Frontier Regulation of 1873, also known as the Inner Line Regulation, empowered authorities to issue permits for passage or residence in designated "inner line" areas. This policy aimed to safeguard the cultural and identity autonomy of indigenous tribes.

Government Acts: “Classifying Excluded Areas”

Other notable British acts include the Government of India Act of 1919 and 1935. The latter, in particular, introduced the terms 'Excluded Areas' and 'Partially Excluded Areas,' identifying regions with a significant population of Scheduled Tribe communities that required special administrative provisions. The British government aimed to keep the tribal communities in the North East away from dominion

Cabinet Mission Plan:

The Cabinet Mission Plan, which established the Constituent Assembly, acknowledged the need for special attention to tribal and excluded areas. In response, the Advisory Committee formed a Sub-Committee on Fundamental Rights, Minorities, and Tribal and Excluded Areas in 1947. Chaired by Gopinath Bordoloi, the committee addressed the unique concerns and needs of tribal regions.

Formulation of the Sixth Schedule: Addressing Tribal Concerns

The Sub-Committee's pivotal outcome was the formulation of the Sixth Schedule of the Constitution of India. Passed by the Constituent Assembly in 1949, this schedule delineates specific provisions for the autonomous administration of tribal areas in Assam, Meghalaya, Tripura, and Mizoram.

The key features :

Autonomous District Councils (ADCs): The tribal areas are divided into autonomous districts, and each district is provided with an Autonomous District Council. These councils have legislative, executive, and financial powers .Autonomous district councils and regional councils with legislative, administrative, judicial, and financial authority are established as per the sixth schedule. These administrative authorities have different powers and functions depending upon the state. t.

Legislative Powers: The District Councils have the authority to make laws on various subjects related to inheritance of property, marriage, land and social customs. As a result, any legislation enacted under this section must first receive the governor's approval before taking effect, otherwise, they will be null and void

Constitution and Powers of Village Councils and Regional Councils: The District Councils can constitute Village Councils and Regional Councils within their jurisdiction, further decentralising governance.

Judicial authority under the sixth schedule

The District and Regional Councils also have the jurisdiction to create Village and District Council Courts to hear Scheduled Tribe cases. The Supreme Court and the High Courts are the only courts with jurisdiction over Council Court cases.

Analysis of the drawback of sixth schedule:

The drawback of the Sixth Schedule, particularly concerning the delegation of inheritance matters to village council will sideline equal rights for women. The concentration of decision-making power within these councils may limit the opportunities for women to voice their opinions and participate in shaping the laws that govern inheritance. While some women may find identity and tradition in customary laws prevailing within these councils, the inherent challenge lies in ensuring that these laws align with principles of gender equality.

The issue arises from the fact that, in practice, the traditional structure and dynamics of many village councils might not be conducive to providing equal representation and participation for women. As a result, women's perspectives on inheritance matters may not be adequately considered, and the potential for gender bias within the customary laws remains.

Despite the advantages of local dispute resolution through village councils, the risk is that the continuation of such practices may perpetuate gender inequality in tribal areas.

Balancing Article 371A and 371G: Laws of inheritance

According to these Articles 371 A and Article 371G that no Act of the Parliament can have legal force unless a majority in the State Assembly decides to the contrary in 1. Religious or social practices; 2. Customary laws and procedures; 3. Administration of civil and criminal justice involving decisions according to the customary law; 4. Ownership and transfer of land and its resources. These articles provide special provisions to Nagaland and Mizoram.

Drawing inspiration from the wisdom of Hon'ble Justice Dr. D.Y Chandrachud in the Sabarimala Temple case, a broader perspective on customs, usages, and personal laws emerges in Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala^[3] :

“394. 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 immunise them from constitutional scrutiny, is to deny the primacy of the Constitution. Our Constitution marks a vision of social transformation. It marks a break from the past — one characterised by a deeply divided society resting on social prejudices, stereotypes, subordination and discrimination destructive of the dignity of the individual. It speaks to the future of a vision which is truly emancipatory in nature. In the context of the transformative vision of the South African Constitution, it has been observed that such a vision would:

“require a complete reconstruction of the State and society, including a redistribution of power and resources along egalitarian lines. The challenge of achieving equality within this transformation project involves the eradication of systemic forms of domination and material disadvantage based on race, gender, class and other grounds of inequality. It also entails the development of opportunities which allow people to realise their full human potential within positive social relationships.” [ Cathi Albertyn and Beth Goldblatt, Facing the Challenge of Transformation : Difficulties in the Development of an Indigenous Jurisprudence of Equality, Vol. 14, South African Journal of Human Rights (1988), p. 249.]”

Further in paragraph no 396 of aforesaid judgement, the Hon'ble Justice Chandrachud observed that:

“Did the Constitution intend to exclude any practice from its scrutiny? Did it intend that practices that speak against its vision of dignity, equality and liberty of the individual be granted immunity from scrutiny? Was it intended that practices that detract from the transformative vision of the Constitution be granted supremacy over it? To my mind, the answer to all these, is in the negative. The individual, as the basic unit, is at the heart of the Constitution. All rights and guarantees of the Constitution are operationalised and are aimed towards the self-realisation of the individual. This makes the anti-exclusion principle firmly rooted in the transformative vision of the Constitution, and at the heart of judicial enquiry. Irrespective of the source from which a practice claims legitimacy, this principle enjoins the Court to deny protection to practices that detract from the constitutional vision of an equal citizenship”.

Pondering Uniform Codification: Navigating the Complexity

In the dynamic discourse on the uniform codification of inheritance laws and gender equality, a critical consideration emerges. Diversity in religion among tribes adds complexity to bringing uniform codification of inheritance laws and gender equality. Many tribes follow macro religions while maintaining their tribal practices. The majority of hill tribes converted to Christianity due to colonial regime intervention and Christian influence. Conversely, tribes like Kachari, Miri, Dimasa, and Jaintia in Assam adhere to Hinduism while retaining their traditional, classless structures. As the navigation continues with diversity the complexities of a uniform civil code, a critical consideration arises. Practices intricately linked with the civil status of individuals must not evade constitutional scrutiny based on religion or custom. The anti-exclusion principle, a linchpin of the Constitution's transformative vision, positions the individual as the nucleus of constitutional rights, underscored by principles of dignity and equality. However, the constitutional terrain is intricate. Articles 371A and 371G, coupled with the Sixth Schedule, extend explicit protections to communities, preserving their unique cultural identities. Forged in the crucible of historical conflicts, these provisions pose formidable obstacles to facile amendments. Striking a nuanced equilibrium between advancing uniform codification for gender equality and safeguarding cultural distinctiveness becomes a focal point of enduring debate

In conclusion, the examination of inheritance practices among various tribal communities in India reveals a complex interplay between customary laws, constitutional provisions, and the pursuit of gender inequality. While constitutional safeguards like Article 371A and 371G offer protection and autonomy to tribal regions, the actualization of equal property rights for women remains contingent upon the functioning of village councils, district councils, and the active involvement of the Governor. The diversity of customs and practices across tribes underscores the intricate nature of the challenge. The existing customs, often rooted in tradition, tend to favor male inheritance, leading to gender disparities. Despite the constitutional framework, achieving true equality requires concerted efforts to challenge discriminatory practices, raise awareness, and foster a transformative vision of society. The recognition of the individual as the basic unit of the Constitution emphasizes the need to view existing structures through the prism of individual dignity.

Gender equality in property rights is not just a legal matter; it's a reflection of our society where every person, regardless of gender should enjoy the full spectrum of rights and opportunities in respect of property. True empowerment will lie where women get equal rights in property as inequality in property rights also lead to many injustices.

References: https://ncwapps.nic.in/pdfreports/Customary%20Law.pdf, Tribal Customary laws and woman, an Introduction

Smt. Himadri Sarma is former Sub Divisional Judicial Magistrate, Assam Judicial Service & lawyer. Views are personal.