Govt needs to do more to protect rights of tribal women

It is fascinating to learn about the history of women’s rights in India, a country revered as ‘Bharat Mata’ by its people. While the term itself symbolises the place of women in the country, the reality is quite different, particularly in pre-independent India, when women rarely had a say in public life. When colonialism and nationalism were at their peaks, social reform related to caste and gender came under the scanner, and reforms were ushered in.

While reading history, I came across a fascinating fact about how women’s rights have evolved in India. It was not a woman but a man, Raja Ram Mohan Roy, who kindled the women’s rights movement by eradicating the evil of sati. This was just the beginning; a watershed moment was the adoption of India’s Constitution in 1950, which guarantees equal rights to both men and women.

However, the reforms done to protect women’s rights, though admirable, are insufficient to eradicate many societal evils that still persist.

The recent case of Kamla Neti vs. Special Land Acquisition Officer demonstrates how tribal women continue to suffer and do not have legal respite. The case involves the issue of compensation to be paid for the acquired land.

As per the Supreme Court, the appellant, as the daughter, is not entitled to a portion of the compensation under the provisions of the Hindu Succession Act since she belongs to a tribal community, and the same would not apply to members of a scheduled tribe according to Section 2(2) of the Hindu Succession Act.

This also shows how sons are rewarded but daughters are not, and how tribal and non-tribal women are treated differently. The case also reignited an older issue: the Bombay High Court’s ruling in the Narasu Appa Mali case (NAM) that one cannot tamper with the customary/personal laws of any tribal society since the fundamental rights of an individual do not apply to tribal customary/personal laws.

The decision of NAM was criticised by Justice Chandrachud. According to him, the logic of the NAM judgement of the Bombay HC was incorrect. He also claimed that immunising norms and usage, such as the prohibition of women in Sabrimala, undermines the Constitution’s primacy. Following the NAM case, experts began to ask whether courts regard the Constitution as an evolving text or one that is fundamental.

The question was answered by Indian courts in many cases, like in the Sabarimala decision, and the Hon’ble Supreme Court stated that the Constitution’s original intent was for it to be “transformative in nature,” in response to the question whether customary law might be changed to other constitutional principles like equality.

In the Madhu Kishwar case, Justice K Ramaswamy stated in his ruling that “exclusion from inheritance would not be justified” in response to a question about whether the equal contribution of women and their constitutional promise of equality could be disregarded in favour of customary law.

The Van Gujjar community filed a PIL with the Uttarakhand High Court, asking if they could be evicted from the forest area they lived in. The court ruled that the indigenous community could not be denied its fundamental rights. As a result, the tribal community, which includes tribal women, is subject to the provisions of Articles 14 (right to equality before the law) and 15 (discrimination on the basis of sex, religion, etc.) of the Constitution.

All of the above suggest that the Constitution is transformative in character.

“Gender parity is not just beneficial for women; it is good for society,” said Angelica Fuentes, president of the Angelica Fuentes Foundation. To make gender parity a reality, the legislature and courts should take action to safeguard tribal women from gender discrimination.

In cases involving women’s rights, the judiciary should follow the general principles contained therein, being
consistent with justice, equity, fairness, and a good
conscience.

The Central government should withdraw exemptions provided under the Hindu Succession Act in respect of scheduled tribes to ensure compliance with rights to equality and a life of dignity guaranteed under the Indian Constitution. With a little help from the courts and legislature, India would be a model for other countries in achieving gender equality in their societies.

(The writer is a second year student at Dharmashastra National Law University, Jabalpur.)