Customary laws serve as a vital safeguard against coercive assimilation and uniformity. Concurrently, as the Supreme Court correctly noted, the ‘collective ethos of the Constitution’ guarantees that there is no discrimination against women.
- The Promise of Equality: The Indian Constitution is unequivocal in its promise of gender justice.
- Article 14 guarantees equality before the law.
- Article 15(1) prohibits discrimination on the grounds of sex.
- Article 21, interpreted expansively by the Supreme Court, includes the right to a life with dignity, which is severely compromised without economic independence and security.
- The Challenge from Customary Law: Customary laws, often uncodified and patriarchal, deny women inheritance rights, particularly in land. These practices are defended on the grounds of cultural preservation and preventing land alienation to non-tribals.
- The Legal Vacuum: Section 2(2) of the Hindu Succession Act, 1956, which grants equal inheritance rights, explicitly excludes members of Scheduled Tribes. This leaves Adivasi women in a legal void, governed solely by custom.
- Judicial Intervention: The Supreme Court has progressively held that customary laws are subject to fundamental rights. In cases like the one involving the Ho tribe of Jharkhand, the court observed that a custom that violates fundamental rights is “unconstitutional.” It has championed constitutional morality over outdated social morality, asserting that the right to equality cannot be subverted in the name of custom.
- Reinforcing Patriarchy: Denying property rights reinforces the subordinate status of women within the family and community. It perpetuates a cycle of dependence and limits their decision-making power.
- Vulnerability and Exploitation: Property-less women, especially widows and deserted wives, are highly vulnerable to destitution, exploitation, and violence. Inheritance rights provide a crucial social safety net.
- The “Land Alienation” Argument: The primary justification for these customs is the fear that women, upon marrying non-tribals, will transfer land to outsiders. While land alienation is a genuine concern for tribal communities, using it to disinherit women is a patriarchal tool that unfairly burdens them with preserving community resources. The same restrictions are often not applied to men.
- Dynamic Nature of Culture: Culture is not static. Upholding discriminatory practices in the name of tradition stagnates cultural evolution. True preservation lies in adapting traditions to the constitutional ethos of justice and equality.
- Economic Disempowerment: Land is the most critical economic asset in agrarian tribal economies. Denying women ownership prevents their economic independence, access to credit (as land is collateral), and ability to invest in agriculture or other enterprises.
- Impact on Livelihood: As primary cultivators and food producers in many tribal communities, women’s lack of land rights is a stark contradiction. It prevents them from accessing government schemes, subsidies, and institutional credit meant for farmers.
- Feminisation of Poverty: The denial of property rights is a direct contributor to the feminisation of poverty in tribal areas, trapping women and their children in a vicious cycle of deprivation.
- Failure of Legislative Action: The Parliament has failed to amend the Hindu Succession Act or enact a uniform, gender-just code for tribal inheritance, despite recommendations from the Law Commission and various committees.
- Role of Tribal Advisory Councils (TACs): Established under the Fifth Schedule, TACs have often been slow to recommend reforms to customary laws, sometimes perpetuating the patriarchal status quo.
- Implementation Challenges: Even if rights are granted legally, administrative hurdles in land titling, mutation, and awareness campaigns will be significant challenges that require proactive state intervention.
- Legislative Reform: The government must amend Section 2(2) of the Hindu Succession Act to extend its provisions to Scheduled Tribes or formulate a new gender-just succession law for tribal communities.
- Balanced Safeguards: To address the legitimate concern of land alienation, any new law can include safeguards, such as restricting the sale of tribal land to non-tribals, irrespective of the owner’s gender.
- Codification and Reform from Within: Encourage and support tribal communities and their representative bodies to codify their customary laws while systematically removing provisions that are discriminatory and unconstitutional.
- Mass Awareness: Launch large-scale legal literacy and awareness programs among Adivasi communities, empowering women to understand and claim their rights.
- Strengthening Local Governance: Empower women within traditional governance structures (like Gram Sabhas under PESA) to ensure their voices are heard in matters of law and custom.
