Customary Law and Challenges to Governance in the Context of Land Inheritance Among the Women of Munda Tribe in Jharkhand

Introduction

This article studies the customary practices of land inheritance among the Munda women and how the present statutes are contradictory to customary practices. It identifies the social and legal barriers and the consequences of the issues related to land inheritance of tribal women. The study uses both primary and secondary sources of data. It includes interviews of activists and community leaders from the Munda tribe and facts from Tenancy Manual, Gantzer Report, Archer’s Report and District Gazetteer.

Issue of Tribal Women and Land Inheritance

In a tribal society, where patriarchy dictates the status of women, even land policies and laws do not ensure justice to them. Many legal systems of the world, like that in India, are reluctant to interfere with personal laws. This maintains the inequality between a man and a woman’s right to property (Agarwal, 1994). Not all women in the world possess land titles (Fact Sheet: Land Tenure & Women’s Empowerment by E3/Land). Even where women do own the land, they have no control over it. Second, not holding a title to the land becomes an obstacle when women apply for credit. Legally, women cannot use jointly owned property in a civil transaction or as collateral for a bank loan (Agarwal, 1994).

According to Engels, as for the right to property, especially land, the descent was traced through the maternal side. The exclusive recognition of lineage through the mother and inheritance relation that arose out of it in the course of time constituted ‘mother-right’, that is, mother’s right and position as above that of the father. The theory of ‘woman—the gatherer’ claimed that women’s productivity was the pre-condition of all the other human production (C Panther Brick, 1995). The theory of ‘man—the hunter’ has tried to provide some explanation regarding the origin of male supremacy through authority over tools of production. According to the theory, through the activity of hunting, men learned the technique of impregnation and used it to establish their power over women. This exploitative power facilitated to build a patriarchal society (Bhasin, 1993). Monogamy, according to Engels, was the first form of family, based not on natural but economic condition, namely on the private property, over original, naturally developed common ownership. With developing productivity in the sphere of production, larger surpluses were generated, and men started to accumulate private property. Accumulation of wealth led men to transmit their property to their offspring. To ensure that the absolute control on property rested in the hands of the patriarch, it was necessary to institute a patrilineal mode of transaction. This led to the overthrow of the mother’s rights (Karl Marx, 1848). Father-to-son transfer of property became the accepted norm.

Across the country, the patriarchal culture has been so predominant that even conventionally matrilineal communities in the South and Northeast are becoming patrilineal. With no foothold in the natal home, no economic base to call their own, most women have little choice but to see that their marital homes as the only place where they must try to belong and to see their status deriving from their husbands (Kishwar, 2005).

Among the Mundas in Jharkhand, it was observed that there existed many such forms of property that can be said to lie between the community property and the individual property controlled by the male head of the household. Patrilocality ensures that in this form of partly communal property, women are the first historic category of non-owning workers. Women are not considered to be complete members of the community in the jural sense. Here, women’s fertility is of huge significance connected with the growing importance of ‘perpetuating’ the lineage, to be able to pass on the results of accumulation, namely land. With the development of senior and junior lineages, based on the notion of ‘original settlers of the land’, men of junior lineages also come to have restricted ownership rights in land and began paying a tribute to the ‘original settlers’ and the chiefs. These junior lineages are relatives on the female side. The dissolution of communal property reaches its final stage when there is individual ownership of land, with no mediation of and control by the community. It is in this position that women are reduced to full non-owning workers, with no usufructuary rights (life interest) in land with even the income from gathering accruing to the male head of the household.

Advent of the Women’s Land Rights Movement: Global Perspective

The clarion call for giving equal rights to women as their male counterparts in all spheres of life was initially trumpeted in the USA and the UK towards the end of the 18th century. Even though there were several reasons for this uprising of women, the movement gained rapid momentum with the Second World War and the Declaration of General Human Rights in France and the USA which led to the demand for equal rights for women, especially the right to vote, right to enter into any profession, economic independence and freedom from oppression. The Seneca Falls Convention was the first national women’s rights convention held at Seneca Falls in New York in 1848. It turned out to be a pivotal event in the continuing story of the USA and women’s rights.

In 1947, to improve the status of women, the United Nations (UN) established the Commission on the Status of Women to promote women’s equal political, social, economic and cultural rights. Again, in 1975, the UN launched the decade for women, a ten-year effort to address women’s issues. The decade for women culminated in the 1985 UN Nairobi Conference and the 1995 Beijing Conference.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted in 1979 by the UN General Assembly, defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination. CEDAW deals with the status of rural women (Article 14) and the right to property, inheritance and access to land (Articles 15 and 16). It also recommends that countries undergoing agrarian reforms or redistribution of land should carefully observe the rights of women—regardless of marital status—to share such redistributed land (Para 27 CEDAW). Women’s rights over land are a means to fulfil the commitments of the Beijing Plan for Action (Para 58 m and 166c) and Millennium Development Goals. The UN’s Convention on Human Rights Resolution 2003/22 (women’s equal ownership of, access to, and control over land and equal rights to own property and adequate housing) urges governments to promote policy and programmes towards strengthening women’s housing and land rights.

In Pakistan, rural women sustaining struggles of peasants for land and standing up to the security forces add a new dimension to a mature women’s movement, which has through its struggles for equality and justice developed a deep understanding of its link with democracy (Velayudhan, 2009).

In Bangladesh, the protest was against the reversal of the National Policy for Advancement of Women passed by the Awami League government in the late 1990s. The new policy dropped provisions of equal rights in property and assets and struck out inheritance, property and assets, and land rights from the list of prerequisites for women’s economic empowerment (Velayudhan, 2009).

In Nepal, organisations such as the Community Self-Reliance Centre, which played a key role in building National Land Rights Forum, have been advocating women’s land and property rights (Velayudhan, 2009).

In Sri Lanka, post-tsunami, the government’s development plans in the affected area brought the gender dimension in the land and property rights to the forefront. The right to land and property is not expressly guaranteed as a fundamental right in the Sri Lankan constitution; however, customary practices gave women from all communities rights in landed property (Velayudhan, 2009).

Thus, the literature reviewed on the stated proposition suggests that the gradual establishment of patriarchy and the reluctance of legal systems to interfere with personal laws have deprived indigenous women of land inheritance rights. Although the global crusade for women’s land rights started centuries back, the given study probes how it all began in the Chotanagpur region of erstwhile Bihar. It throws light not only on the repercussions of the first litigation in the region on this matter but also on the consequences of tribal women being given land rights in the state. In view of the given objectives, the article probes if there is a convergence of common law and customary law in Jharkhand, the rule of inheritance within the Munda tribe, and does the Chotanagpur Tenancy Act (CNTA) contain any provisions for female land inheritance.

Land Rights Movements in Jharkhand

In 1996, the Apex Court had the opportunity to deal with gender discriminatory inheritance laws in the tribal community through the noted case of Madhu Kishwar vs. State of Bihar 1996 AIR 1864. In this case, Madhu Kishwar, a woman’s rights activist, challenged the provisions of the CNTA 1908, under which land and property rights are inheritable only by descendants in the male line among the indigenous communities of Jharkhand. This particular case carries a chequered journey. When first filed in 1986, it was pleaded that it is discriminatory and violative of the rights to equality and life as a tribal woman is excluded from the inheritance of land or property that belonged to her father, husband or mother. The right is confined to the male heirs or lineal descendants. These notions being based solely on gender are highly discriminatory and unjust as tribal women labour hard in the fields, sweat and face the trials and tribulations in agricultural operations equally as men do.

This case was then adjourned with the hope that the desirability of amending the law to give equal inheritance rights to women as that of the menfolk would be examined by the government. However, there were dissenting opinions from the state Tribes Advisory Council (TAC). It said that granting equal inheritance rights to women would increase the chances of alienation of tribal lands as non-tribal men through marriage to tribal women would encroach upon it. When the case was finally decided in 1996, the majority judgment upheld the previous provisions. However, on the ground of right to livelihood being part of the right to life, it was held that the immediate female relatives of the last male tenant could hold the land as long as they remain dependent on it for earning their livelihood, for, otherwise, it would render them destitute. The exclusive right of male succession remained in suspended animation till the female descendant’s right to livelihood remained valid.

In this case, there was a dissenting judgment of Justice K. Ramaswamy. The judgment said that this apprehension of tribal lands getting alienated to non-tribals is unfounded, for any such transfer requires adequate legal permission. It was held that to ensure equality of justice, women must be given inheritance rights, be it in the property of their natal or marital home.

Repercussions of the Madhu Kishwar Case: The Ranchi Declaration of 29 October 1996

An apprehension of losing rights engulfed the tribal community in Jharkhand post-decision in the Madhu Kishwar case, which resulted in the Ranchi Declaration of 29 October 1996. Here, it was discussed that talking about the rights of a daughter is an anti-people conspiracy. They feared that in the name of justice, a path is being carved out for the neo-imperialist colonial forces to enter within the tribal community who till now were unsuccessful in doing so. And now, through these questions of inheritance rights being raised by tribal daughters, an attempt is being made to create a rift in the tribal community. The Declaration further stated that the issue of woman’s land inheritance rights is not suited to her contextual situation of the social system. This will not only have deep implications on the social set-up of the community but also weaken their rights of autonomy.

It emphasised the fact that the tribal community has always carried a liberal thought with regard to the notion of independence of women. However, people with ulterior motives are exploiting this openness to serve their interests. It was said that tribal–non-tribal marriage is taking place in large numbers just to have control over land. One of the significant points in the Declaration says that a daughter enjoys complete protection in her father’s home at times of emergency. However, the property rights are not included in this gamut of protection that she possesses. In such a peaceful situation, if formal property rights are claimed by her, it will not only wither away the holy values of customs but also lead to disharmony and separation. Also, at a time when it is tough to meet the ends of agriculture, it will be difficult to keep land as an asset intact as it shall go to a family that is already wealthy. This practice shall promote buying and selling of land and lead to situations where protection of girl’s interest would take a back foot (Peter, 2005).

An Intersection of Common Law and Customary Law in Jharkhand

In the erstwhile state of Bihar, Jharkhand was a tribal region comprising primarily of people from Munda, Ho, Oraon and Santhal tribes. From the time the Britishers came to Chotanagpur in the latter part of the 18th century, after the South-West Frontier Agency was constituted and Thomas Wilkinson, its political agent, framed civil rules in 1834, this region emerged as a ground for convergence between common laws and customary orders. British officials were well aware of the fact that customs had the potential to transform into laws. Under the policy of carving a difference between regulation and non-regulation systems between tribal and non-tribal parts of the territory, the British converted Chotanagpur and the Santhal Parganas into non-regulation territories. The region of Chotanagpur had already overcome the gap between law and custom-governed communities within the Hindu society, which were significantly emphasised by the British administrators since the 1870s. Recognised and notional customs substituted general laws, and governance was done through the Manki-Munda system under the superintendence and control of an omnipresent district head (Sen, 2012).

Rule of Inheritance Among the Munda Tribe

Inheritance among the Mundas is patrilineal. The property is partitioned equally by the sons except for the eldest son who gets a little more. Daughters are not given any share; however, a daughter is entitled to her maintenance until her marriage. After the death of her husband, a widow gets some land for maintenance. After her death, the land is partitioned equally among her sons. In case there is no male issue, the property is inherited by the nearest agnates of the deceased. The custom of Ghar Damaad is prevalent among them. After his wife’s father’s death, he is given land by the panch. He ceases to be the owner of the said land after his wife’s death. The property is then inherited by the nearest agnates of his wife’s father. The daughter’s son does not inherit the property. In the absence of any male issue, a Munda can adopt a boy of his community as his son. According to their traditional laws, the adopted son inherits the property (Pandey, 2009).

Legal Understanding of the Munda Woman’s Land Rights: CNTA 1908

Section 3 of the CNTA largely encompasses the model of the Munda land tenure system. This Act not only provides enough scope for the operation of customs and usage but also contains specific provisions about women’s land inheritance rights. On the lines of the Munda customs, in which females have not been given any inheritance rights in ancestral properties, the CNTA under Sections 7 and 8 defines Khuntkattidar and Mundari Khuntkattidar, respectively. Both these definitions exclude females from the line of inheritance, that is, ‘anyone not in the male line’. Only two tenure categories are subjected to this proscription. These are ‘raiyat having khuntkatti rights’ and ‘Mundari khuntkattidari’, respectively. In both these categories, it is restricted to ‘descendants in the male line’ and the ‘heir male in the male line’, respectively. However, a decision by the honourable court in a case held that this decision was not exhaustive and did not exclude the usufruct right of the widow of a Mundari khuntkattidar, although nowhere in the Act has this right been specifically mentioned. The exclusion of widows from property rights has been upheld in several other cases. For instance, in one of the reported cases, the widow of an Oraon (an ethnic group inhabiting in Indian states of Jharkhand, West Bengal, Odisha and Chhattisgarh; they predominantly speak Kurukh as their native language, which belongs to the Dravidian language family) man who tried to sell her deceased husband’s land was challenged by other members of her community, and the transfer was found to be in violation of Section 46(1) as well as other provisions of the Act, under which a tribal woman cannot inherit or transfer any raiyati or bhuinhari land. ¹ Such decisions of the court are based on their understanding of the tribal customary law, which allegedly excludes all tribal women from the line of inheritance. Yet the prescriptions of the CNTA under this rubric refer only to khuntkatti rights. The raiyat as per the above-stated section includes the ‘successor-in-interest of persons who have acquired such a right’, that is, females or others who are not in the male line are not specifically excluded.

Challenges and Measures Taken by the Government

Property rights, in particular, are fuzzy and mediated by family and kinship ties and, hence, a strict focus on legal rights can jeopardise women’s rights to land and, in turn, to food security. It is by region and income group that the male–female biases in intra-household food allocation vary. Therefore, they cannot be assumed as a corollary to the non-ownership of land. Among the Mundas, no apparent discrimination was visible in terms of access to food, primary health and education between girls and boys. This could be because of high levels of poverty and the virtual non-existence of public services. It was also because both men and women are valued for their labour contributions to agriculture.

A wider understanding of food security and well-being as outcomes that are not just linked to food production is particularly crucial in the context of diversification essential for both survival and reducing risk. The sectors in which women are involved get socially devalued and assigned a secondary status, despite their hard work. This could potentially threaten their food security as well as identity. ²

To curb this fear of tribal land alienation because of tribal women marrying non-tribal men, the Government of Jharkhand is about to bring legislation that aims at taking away their tribal status from women marrying outside their community. The TAC, the apex body that recommends and decides on tribal affairs in the state headed by the then Chief Minister Raghubar Das, had made recommendations for bringing this legislation. Furthermore, it was also decided to issue a caste certificate to a married woman based on the caste of her husband, which earlier was issued based on the caste of her father. The TAC members claimed that such a decision will check legal acquisition of tribal land by the non-tribals largely violating the tribal rights (Ranjan, 2018).

Tribal Women Activists on Land Rights in Jharkhand

Intervention Initiatives Based on Customary Practices

Most of the land is raiyati, that is, under private ownership. There is very little land available, which can be termed as commons (collectively owned). Thus, when we talk of land rights for tribal women, it is from those privately owned land in which their male relatives have ownership.

As of now, the khatian in Jharkhand is in the name of a deceased male ancestor, but, in practice, the land has been partitioned between his sons and other kin. When land settlement started there during 1978–1979, it was stalled. Some areas were left out, and the process remained unfinished. Then came the digitalisation of land records. The tribals’ demand in Jharkhand is for the inclusion of wives’ names in land records has remained unfulfilled till now.

There is now very little land left in the form of big plots on which tribal women can do farming or may run collective income generation programmes. If at all there are still some small plots available, then cash crop, vegetable and herbal gardening can be done on these. This can be done in some private lands as well.

Also, there is some common village land in each village, which is under the control of the Pradhan. The Pradhan cultivates it on an honorary basis and uses its revenue to support the whole village during special occasions. Now, this traditional Pradhan system is under challenge.

Conclusion

Since land is an asset directly connected with the development of tribals in the state, its preservation should be a priority. For this to happen, women’s rights must be incorporated into the existing patriarchal system. The much-pondered idea of reverting the tribal rights of a woman marrying a non-tribal must soon take the shape of legislation. Customs like Taben Jom should be revived. Giving land rights to tribal women will also mitigate evils in the community, where it is found that in most of the households, males squander away money and belongings to meet their needs of addiction. As part of gender-sensitive land reforms, national land audits and publicly accessible land registries should be established and reinforced by community mapping programmes that engage women. To protect the interest of women, including widows and those belonging to vulnerable groups, customary laws need to be strengthened too. A legal awareness programme should be started within the tribal community to sensitise the youth regarding this issue. A system of joint ownership of property post marriage needs to be encouraged. A provision to include the women’s land inheritance rights must be incorporated within the parha/patti system of the Mundas, which governs the Fifth Schedule Areas.