Contents
Introduction
According to the 2011 Census, tribal women constitute nearly 8% of Indias female population, yet many remain excluded from property rights. The 2025 Supreme Court Gond inheritance verdict redefines this exclusion through constitutional equality.
Doctrinal Context: Equality vs. Customary Autonomy
- Indias Constitution guarantees formal equality under Articles 14 and 15, while Fifth and Sixth Schedules protect tribal autonomy and customary laws. This dualism often produces what jurists term a doctrinal conflict between constitutional supremacy and legal pluralism.
- Article 13(3)(a) classifies customs and usages as laws in force, making them subject to constitutional scrutiny.
- However, Article 244 read with the Fifth and Sixth Schedules grants tribal communities legislative and administrative self-governance, including control over land and inheritance.
- The conflict arises when gendered customs often patriarchal — clash with the constitutional morality of equality.
Case Study: 2025 Supreme Court Verdict (Gond Inheritance Case)
In Shelly v. Bahl (2025), the Supreme Court held that tribal women of the Gond community are entitled to inherit ancestral property even in the absence of explicit custom.
Key observations:
- Burden of proof reversed — courts should presume inclusion unless exclusion is proven by evidence.
- Justice, equity, and good conscience become guiding principles when custom or statute is silent.
- Articles 14, 15(1), 38, and 46 were invoked to align customary law with the constitutional vision of substantive equality.
- This marked a shift from earlier judicial restraint, notably the Madhu Kishwar v. State of Bihar (1996) judgment, where the Court upheld exclusionary customs to preserve social stability in Chotanagpur tribes.
The Constitutional Ethos of Equality and its Doctrinal Reach
- Evolution of Gender-Equal Property Rights: The 2005 Hindu Succession (Amendment) Act recognised daughters as coparceners in Hindu law, with its Statement of Objects and Reasons emphasising gender justice. Although not directly applicable to Scheduled Tribes (per Section 2(2) of the Act), the Court cited it to express the constitutional morality that should guide tribal contexts too.
- Constitutional Morality vs. Customary Pluralism: As per Dr. B.R. Ambedkar, constitutional morality demands the subordination of social norms to constitutional values. However, excessive judicial intrusion risks undermining the right to difference and cultural autonomy, central to tribal self-governance under the Schedules.
The Limits of Judicial Intervention
- Institutional Competence: Courts lack granular understanding of localized customs, risking judicial overreach and cultural homogenization.
- Democratic Legitimacy: The judiciarys substitution of community norms with constitutional principles may dilute participatory justice, best achieved through legislative consultation or tribal councils.
- Doctrinal Boundaries: The Courts reliance on justice, equity, and good conscience, a colonial-era residuary principle, can introduce subjectivity without consistent jurisprudence.
A balanced approach would involve:
- Codifying tribal customs under State Scheduled Areas Acts, ensuring gender inclusion.
- Promoting customary reform through Gram Sabhas, supported by constitutional literacy initiatives.
- Encouraging tribal womens representation in autonomous councils to evolve norms organically.
Comparative Insight
Globally, South Africas Bhe v. Magistrate (2004) case similarly struck down customary inheritance rules excluding women, affirming that custom must evolve within the framework of constitutional rights. Indias trajectory mirrors this progressive yet cautious stance.
Conclusion
Constitutionalism must temper custom without tyranny. The 2025 verdict embodies this balance—preserving tribal identity while ensuring substantive equality, thus harmonising diversity with justice.
