TRIBAL WOMEN’S LAND RIGHTS IN INDIA A Socio-Legal Review of Customary Practices through the Gender Lens Devika Bahadur World Bank, New Delhi, India

Tribal Population in India (2011 Census) Source: Tribal Profile at a Glance, May 2013, Ministry of Tribal Affairs

Women’s Access to Property… Food security Health Sustainable Resource Management Decision-Making within Household Access to Credit, Technology, and other services Children’s Education Poverty Vulnerability Hunger Domestic Violence*

Factors Affecting Women’s Right to Property Formal / Legal - Religion- Nature of Property- Tribal Status- Siblings / Marital Status*- Other Applicable Legislation Informal - Social Legitimacy- Marital Status / Siblings*- Literacy- Access to Land Administration- Access to Resources- Dowry

Legal Framework Scheduled Tribes The Indian Constitution recognizes Tribes as ‘ Scheduled Tribes ’ through the fifth and sixth Schedules, for the purposes of providing them with certain privileges and guaranteeing protection to their traditional ways of life. ◦ Schedule V identifies special privileges for those areas where the majority of the population belongs to Scheduled Tribes. ◦ Schedule VI applies special privileges to tribals who reside in the northeastern states of Assam, Meghalaya, Tripura, and Mizoram. The sixth schedule allows tribes to frame their own rules in accordance with their customary practices. State and union legislations are not enforceable in these regions unless approved by the District Councils. Article 14 of the Constitution guarantees the fundamental right to equality, while creating an exception for special provisions towards the advancement of Scheduled Tribes.

Legal Framework Scheduled Tribes The Forest Rights Act (FRA), 2006 seeks to restore the rights of forest-dwelling Scheduled Tribes and ‘other traditional forest dwellers’ (OTFDs) to control and use natural resources. The FRA aims to recognize people’s ownership and land-use rights at the individual and community level through recognition of Individual Forest Rights (IFR) and Community Forest Rights (CFR). Panchayats Extension to Scheduled Areas Act (PESA), 1996 covers nine Schedule V states and stresses community rights over natural resources empowering the tribal Gram Sabhas (village assemblies).

Legal Framework Inheritance Personal Laws Hindu Succession Act, 1956 – Hindus, Sikhs, Jains, Buddhists – covers nearly 75% of the population Indian Succession Act, 1925 – Christians, Parsis Muslim Personal Law (Shariat) Application Act, Muslims Agricultural Land in some states – State tenurial laws Scheduled Tribes – Customary Laws

Levels of Recognized ‘Legal’ Property Ownership Rights Indian Succession Act, 1925 Hindu Succession Act, 1956 Muslim Personal Law (Shariat) Application Act, 1937 Scheduled Tribes?

Key Questions - How gender equitable are Tribal Customary laws? - Codification of Tribal Customary laws – preservation or freezing of customs?

Tribal Customary Laws Tribal inheritance and kinship systems are largely patrilineal, with the exception of some tribes in Meghalaya and Kerala Many tribal customs are gender sensitive in terms of providing rights for unmarried daughters or widows Some matrilineal tribes like the Garos and Khasis provide for inheritance in the female line. However, control over property, especially for alienation remains in male hands

Tribal Customary Laws Customary rules of inheritance for women vary with different kinship rules – presence or absence of brothers, other male descendants, marital status etc. Some tribes like the Dimasa, although patrilineal in orientation have a hybrid system of inheritance providing for paternal and maternal property, which is inherited by sons and daughters respectively Widows’ access to property is also often related to the presence or absence of children and is conditional upon rules of conduct, remarriage and residence. Often they do inherit only a limited estate

Tribal Customary Laws Thematic trends Change in landholding patterns from Communal ownership to Individual ownership - Women’s status was linked with their control over common property resources. Increasing privatization of agriculture has made men the interface with institutional and governmental structures, including in matrilineal societies Change from Shifting to Settled Agriculture – Greater taboos on women in settled agriculture, such as on use of the plough Alienation of Tribal lands – This is reducing average landholding sizes and making traditional customs which would give rights to daughters more economically difficult to keep up with Impact of mainstream caste societies – The process of Sanskritization involves assimilating certain embedded gender inequitable practices in tribal societies as well

Codification The State’s Mandate - Constitution Article 15 (1) of the Indian Constitution prohibits gender discrimination The Directive principle under Article 39 (a), enjoins the state to ensure that men and women equally have adequate means of livelihood Article 44 also directs the state to endeavor to secure for its citizens a uniform civil code Article 38 of the Indian Constitution directs the state to promote the welfare of people (men and women alike) by securing a social order in which justice - social, economic, and political - informs all institutions of national life

Codification The State’s Mandate International Obligations India ratified the UN Convention on the Elimination of all Discrimination against Women ( CEDAW, 1979) in 1993, which lays down that state parties shall take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women (Act 2(f)). Article 5(a) reads, “ State Policies shall modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudice and customary and all other practices which are based on the idea of the inferiority or superiority of either of the sexes or on stereotyped roles for men and women ”. Goals 1 and 5 of the SDGs

Codification BenefitsDrawbacks Institutionalizing Unequal norms Freezing of culture Protection of Culture Reducing Arbitrariness

Codification - Benefits Codification of customary laws allows tribals to preserve and protect their customary traditions, many of which may be different from the mainstream Codification would give formal recognition to many tribal customary laws, including land ownership patterns like communal ownership. These would allow them to negotiate their relationship with the mainstream on more equal terms Documentation negates the arbitrariness that comes with uncodified customs and introduces a degree of certainty

Codification - Drawbacks Documentation and codification can serve to ‘ freeze ’ customs. Customary law by its very nature evolves and changes Once codified, amendment of such customary laws can be highly contentious and politicized Codification can institutionalize many gender inequitable traditions which may be counter productive from the perspective of gender equity

Madhu Kishwar v. State of Bihar These faultlines showed up in the 1996 judgment of Madhu Kishwar v. State of Bihar. This judgment arose from a public interest litigation filed by a leading women’s rights activist challenging the customary law of patrilineal inheritance operating in the Bihar State (Chota Nagpur Tenancy Act, 1908) and other parts of the country excluding tribal women from inheritance of land or property as discriminatory. - The court held that the tribal women would succeed to the estate of their parent, brother, husband, as heirs by intestate succession and inherit the property with equal share with male heir with absolute rights as per the general principles of Hindu Succession Act, 1956 and the Indian Succession Act - The basis of this judgment was the fundamental right to livelihood and principles of equality. - However, the court did not strike down the discriminatory custom as unconstitutional.

Way Forward Important to prioritize women’s access to ownership of property Important to navigate sensitivities of tribal culture and kinship structures Documentation and codification of customary laws Important for the process to be consultative and sensitive

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