Opinion Ancestral property rights for Adivasi women: Constitution’s promise over customary law

On July 17, the Supreme Court affirmed that a woman from a tribal community has an equal right to her family’s ancestral property. The Court struck down an order of the Chhattisgarh High Court, which in 2022, cited the absence of a specific customary law to deny inheritance rights to an appellant. Customary laws are generally unwritten conventions that govern the community affairs of tribal groups. Last week, however, the SC took a more expansive view of the rights of women from these communities and laid down that their exclusion from inheritance rights was discriminatory. Emphasising Article 14, which guarantees equality before the law, the SC pointed out that “Customs too, like the law, cannot remain stuck in time”. They cannot be used to “deprive others of their right,” the Court ruled. The case dates to 1992, when Dhaiya, a tribal woman in Chhattisgarh, sought the partition of her maternal grandmother’s property and was denied multiple times — first by customary laws, and then by trial and appellate courts. The SC’s order is a significant intervention in the debate on gender justice in tribal communities.

This is not the first time that the apex court has taken a strong stand in favour of inheritance rights of women from tribal groups. In December 2022, while hearing a case of a tribal woman from Odisha who sought a share in the compensation awarded for the acquisition of land belonging to her ancestors, the SC said, “When the daughter belonging to the non-tribal is entitled to the equal share in the property of the father, there is no reason to deny such right to the daughter of the tribal community. Female tribal is entitled to parity with male tribal in intestate succession…” The bench had then advised the Centre to “look into the matter and if required, to amend the provisions of the Hindu Succession Act (HSA).” The Act does not apply to Scheduled Tribes. The Indian Succession Act, 1925, too, gives states the power to exclude the tribals. Section 20 of the Santhal Pargana Tenancy Act, 1949, allows the woman to inherit her father’s property if she marries a man and makes him a ghar-jamai (resident son-in-law). The marriage, however, has to happen during the lifetime of the father.

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Customary laws are important as a bulwark against forceful assimilation and homogenisation of tribal communities. At the same time, as the SC rightly pointed out in Dhaiya’s case, “collective ethos of the Constitution” ensures “that there is no discrimination against women”.