How tribal women in India are subjected to ‘hinduisation’ to be able to access right to inherited property

The recent Supreme Court (SC) ruling in the Kamala Neti (deceased; through legal representatives) vs Special Land Acquisition Officer in December 2022 has provoked a serious debate on the question of bringing tribal women into the Hindu fold to enable them to claim rights to inherited property. 

SC directed the Union Government to examine the necessity of extending the provisions of the Hindu Succession Law (HSL) to the Scheduled Tribes (ST) and bring suitable amendments in the light of Right to Equality guaranteed under Articles 14 and 21 of the Constitution of India.

The SC directions raise two questions: Is it essential to extend the provisions of the Hindu law to ST women to claim a share in the inherited property on par with the male members in the family? Is ‘Hinduisation’ and assimilation into the social hierarchy as a caste category the only legal way to seek inherited property rights by tribals, at the cost of potential threat to their cultural and social identity as a tribe or Adivasi?

Unfortunately, the court rulings, including that of the apex court, would imply such a view. The burden of proof is on the tribal claimants to secure the benefit of the provisions of the Hindu Succession Law as per the rulings in force. 

For instance, the apex court in the case of Labishwar Manjhi vs Pran Manjhi and Ors on July 19, 2000 held that when the evidence disclosed that parties belonging to the Santhal tribe were practicing Hindu customs and not that of the Santhals, then the provision of Hindu Succession Act would apply with regard to inheritance of property.

The Patna High Court in the case of Budhu Majhi and Anr vs Dukhan Majhi and Ors (AIR 1956 Pat 123) held that it is not necessary that the parties must be completely Hinduised. Even if they had been sufficiently Hinduised so as to be governed by the Hindu law of succession, it is enough in matters of inheritance and succession.

The Himachal Pradesh High Court in Bahadur Vs Bratiya and Ors (AIR 2016 HP 58) held that gender discrimination violates fundamental rights and daughters are entitled to equal share in the properties. It concluded 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 their customs and usages.

The observations in the judgments impair the cultural rights of Adivasis. Securing rights over the inherited property should not be a deterrent factor for the cultural identity of Adivasis. The position of the courts certainly will have the effect of separating the Hinduised tribals from the rest of the family or society. The exclusion from the tribal fabric of the society will lead to social unrest among the tribals.

It is true that Section 2(2) of the Hindu Succession Act excludes its operation to the STs. It does not mean that to acquire the benefit under the Hindu Law, one has to convert to or follow Hinduism. 

Similarly, the Hindu Adoptions and Maintenance Act, 1956 and the Hindu Marriage Act, 1955 are also not applicable to the STs, unless extended by the central government or otherwise directed.

Article 342 of the Indian Constitution empowers the President to specify tribes or tribal communities to be STs for the purposes of the Constitution. Parliament can by law amend these notifications whether by including or excluding any group.

STs are constituted not on the basis of their religion. Instead, their social, cultural and economic characteristics as communities and the region or state they inhabit form the basis for determining their status as STs. 

For instance, as per the Constitution (Scheduled Tribes) (Union Territories) Order, 1951 (C.0.33) the inhabitants of Laccadive, Minicoy and Amindivi islands both of whose parents were born in these islands are declared as Scheduled Tribes. They are Muslims by religion. Similarly, in the northeastern states, communities professing Christianity are included in the list of STs, quoted by the Kerala High Court in Rosamma Thomas And Anr vs Circle Inspector Of Police on 9 February, 1999.

STs are moreover recognised specific to areas. For instance, the Valmiki community is notified as STs in the scheduled area of Andhra Pradesh only. Therefore, the status of STs is conferred upon the people not on the basis of the religion they profess but on the basis of the community to which they belong and the region they inhabit. 

The Hindu Adoption and Maintenance Act, 1956 expressly bars its application to the STs, unless notified by the GoI for its extension. If this law is also made applicable to Hinduised tribals as in the case of the Hindu Succession law, then it would pave the way for non-tribals to give their children on adoption to tribals, or create fictitious adoption deeds to grab the constitutional benefits reserved for tribals and usurp tribal lands. 

If this new category of Hinduised tribals is allowed to get the statutory or constitutional benefits, then the very purpose of notifying the STs for the Constitutional purpose will be lost. 

In the Report of the Commissioner for Scheduled Castes and Scheduled Tribes for the year 1961-62 (Eleventh Report), GoI states that in the case of STs, religion is immaterial and a member of a ST continues to be one even though he may change his religion.

Therefore, the view of the court orders run counter to the constitutional scheme. 

As of now, the Hindu caste system has not yet percolated into the tribes or tribal communities. The theories being propounded by the courts, separating the Hinduised or sufficiently Hinduised from the rest of the notified STs for the extension of the provisions of the Hindu laws, will certainly stand as a block to the cultural cohesion among the tribals. The tribal societies are broadly homogenous, while the Hindu caste groups are heterogenous culturally.

Therefore, instead of bringing the tribals into the ambit of the Hindu laws which are personal to the Hindus, the principle of equity through a special enactment governing the inherited property rights among the STs should be made. 

In other words, if any law or usage forfeits a ST woman’s right to inherit the properties of the family by a reason of not being Hinduised would create a conflict among the tribals and it would be unjust and unfair. Any attempt at bringing an amendment to the Hindu law or its extension for its application to the STs would also affect the interest of tribals.

Views expressed are the author’s own and don’t necessarily reflect those of Down To Earth.

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