Empowerment Target: Ensure gender equality in agricultural land inheritance

The Supreme Court’s latest clarification that daughters will have inheritance rights equal to those of sons in division of Hindu ancestral property is indeed welcome. The apex court ironed out the confusion arising from its own conflicting interpretations of the amended Section 6 of the Hindu Succession Act, which came into force from September 9, 2005. The substituted Section 6 confers status of coparcener on the daughter born before or after the amendment in the same manner as the son. A coparcener is a Hindu who inherits property from his or her father, grandfather or great grandfather. The apex court further clarified that irrespective of whether the father was alive or not, daughters born before September 9, 2005  too could claim equal right in inheritance. The only proviso is that daughters won’t be able to question disposal of ancestral property by other coparceners prior to December 20, 2004 as provided in the amended Section 6.

That the apex court had to make this clarification even though amended Section 6 of the Hindu Succession Act had made equal inheritance rights of daughters amply clear, exemplifies the huge hurdles that women still face in inheriting ancestral property. This stems from the deep-rooted patriarchal mores that continue to pervade society, where daughters and women are still seen as unequal to sons and men. And the control of wealth and assets by men is critical to maintaining the patriarchal system. That’s why so many social and administrative hurdles have been conjured to prevent women from inheriting property.

This becomes very clear when it comes to inheriting agricultural land. As per Landesa, a non-profit organisation that works for securing legal land rights for the world’s poorest families, gender inequality in inheritance of agricultural land in India continues to pose a problem. Although the amendment to the Hindu Succession Act  in 2005 had eliminated Section 4(2) that gave precedence to certain local laws regarding devolution of tenancy rights in agricultural holdings – that is state laws providing for prevention of fragmentation of agricultural holdings, or for fixation of land ownership ceilings, or for devolution of tenancy rights in such holdings – it added to the confusion over which laws govern agricultural land inheritance.

In fact, according to Landesa’s report titled ‘Gender Inequality in Inheritance Laws: The case of Agricultural Land in India’ the confusion and gender inequality stem from fundamental issues. The Constitution puts succession and transfer of land other than agricultural land in the concurrent list which means both the Centre and the states can make laws on these subjects. However, agricultural land falls under the state list. But the Hindu Succession Act that applies to majority of Indians – since inheritance of property is generally governed by personal laws – touches upon both agricultural and non-agricultural property.

True, when a law is made on a subject in the concurrent list, it is the central law that prevails. But since agricultural land is explicitly a state subject, the elimination of Section 4(2) in the Hindu Succession Act has led to a big debate. Some say that now agricultural land should be treated like other property, while others continue to argue that only state laws will apply to agricultural land.

This, Landesa says, has led to four categories of states. First, there are states that explicitly mention that personal laws will apply to inheritance of agricultural land – like Madhya Pradesh Rajasthan and Telangana. Second, there are states that are silent on inheritance of agricultural land – like most states in southern, central and north-east India. Third, there are states that have separate succession rules for agricultural land – like Punjab, Haryana, Himachal Pradesh, UP, Uttarakhand and Delhi – where women’s rights are unjustly denied. And fourth, there are states with tribal areas where local inheritance rules are adopted in accordance with their customary practices – like in Assam, Meghalaya, Nagaland, Arunachal Pradesh, Manipur, etc.

Thus we see the existence of a web of personal laws, state laws and customary laws on agricultural land inheritance. It is my contention that this situation has been deliberately created to exclude women from inheriting agricultural land. For, on the one hand, personal laws are riddled with biases against women. The fact that the Supreme Court had to clarify the coparcenary rights of daughters vis-à-vis the Hindu Succession Act exemplifies this point. The same goes for many customary laws that have been infected by patriarchal mores. And as far as state laws on agricultural land inheritance go – the third category of states – women’s inheritance rights here are much inferior to men. Add to this social and administrative hurdles that prevent women from registering agricultural land even when the law allows this.

As a result, despite 73.2% of rural women workers being engaged in agriculture – as opposed to 55% of rural men workers – only 12.8% of agricultural land holdings are owned by women. This is a serious skew that needs to be fixed. For, agricultural land ownership is a major source of economic wealth in India. Therefore, the economic empowerment of a large number of Indian women is linked to their ability to own and inherit agricultural land. And as research has shown, when women are economically empowered it benefits their families much more than when men are given responsibility over the same wealth. Additionally, it gives women decision-making power and sets in motion a whole range of positive forces that in turn give women a better chance at education and careers. And raising the overall level of women’s participation in the labour force to the same mark as that of men can increase India’s GDP by a whopping 27%.

So, there is an urgent need to put a gender lens on agricultural land inheritance in India, and remove hurdles to gender equality. In fact, the Constitutional right to gender equality can be used to amend both personal laws and state laws that discriminate against women in agricultural land inheritance. This will not only be in the interest of justice but also give a huge boost to women’s economic empowerment in India.