[Answered] Critically examine the implications of excluding Scheduled Tribes from the Hindu Succession Act for tribal women’s inheritance rights. Evaluate the necessity of a dedicated legislative framework that harmonizes gender justice with the constitutional protection of indigenous customary laws.

Introduction

Scheduled Tribes constitute 8.6% of India’s population (Census 2011), yet Section 2(2) of the Hindu Succession Act, 1956 excludes them from statutory inheritance rights, creating a persistent tension between gender equality and cultural autonomy.

Legal Context: Statutory Exclusion and Judicial Position

Section 2(2) and Legislative Intent

1. Section 2(2) of the Hindu Succession Act (HSA), 1956 explicitly excludes Scheduled Tribes unless the Central Government directs otherwise. The rationale was to preserve indigenous customary laws under the protective umbrella of the Fifth and Sixth Schedules of the Constitution.
2. In Nawang v. Bahadur (2025), the Supreme Court reaffirmed that the HSA cannot be extended to Scheduled Tribes by judicial interpretation, emphasizing that only Parliament can alter this position. This restored clarity after earlier inconsistent decisions where courts had recognized inheritance claims of ‘Hinduised’ tribal women.

Constitutional Framework: The issue reflects a constitutional paradox:

1. Article 14 & 15 mandate equality and prohibit gender discrimination.
2. Article 29, and the Fifth and Sixth Schedules protect cultural identity and customary governance.
3. Article 13 subjects customary law to the test of fundamental rights, yet courts have historically exercised restraint in tribal contexts. This creates a complex intersection of equality jurisprudence and plural legal traditions.

Implications of Exclusion for Tribal Women

1. Economic Disempowerment: In many tribal communities, customary succession is patrilineal, denying daughters absolute ownership of land. Given that land remains the primary economic asset in tribal regions, exclusion translates into structural economic vulnerability. Studies by the National Commission for Women and UN Women indicate that women’s land ownership significantly improves household welfare and bargaining power. Without titles, tribal women lack access to institutional credit, collateral, and state welfare schemes linked to landholding.
2. Social and Political Marginalization: Property ownership is closely tied to social agency. Exclusion from inheritance often diminishes women’s participation in community decision-making structures, including traditional councils. The earlier practice of requiring ‘Hinduisation’ to access HSA protections forced women into a false binary—choose cultural identity or gender justice—undermining constitutional multiculturalism.
3. Legal Uncertainty: The absence of a uniform statutory framework means that disputes rely on uncodified customs, often interpreted by male-dominated institutions. Litigation becomes prolonged and costly, increasing dependency on male relatives.

The Customary Law Argument: Preservation vs Reform

1. Protection of Indigenous Identity: Tribal leaders argue that patrilineal inheritance prevents land alienation to non-tribals through marriage, safeguarding collective landholding systems. In regions governed by the Sixth Schedule (e.g., Meghalaya, Mizoram), customary autonomy is constitutionally entrenched. The Supreme Court in Madhu Kishwar v. State of Bihar (1996) upheld aspects of tribal customary succession, recognizing the importance of protecting community land from fragmentation.
2. Limits of Cultural Relativism: However, constitutional morality, as emphasized in cases like Navtej Singh Johar (2018) and Joseph Shine (2018), suggests that tradition cannot override fundamental rights indefinitely. The persistence of discriminatory customs under the shield of cultural protection risks entrenching patriarchal hierarchies rather than preserving authentic tribal identity.

Necessity of a Dedicated Legislative Framework

1. A Culturally Sensitive “Middle Path”: Instead of extending the HSA wholesale, Parliament could enact a Tribal Succession Act, balancing: Gender parity in ownership rights. Safeguards against land alienation to non-tribals. Recognition of clan-based systems through mechanisms like usufructuary rights or life interests. The Mizoram model of codifying customary laws demonstrates how reform can occur without eroding identity.
2. Participatory Codification: Given the diversity of over 700 recognized Scheduled Tribes, a federal and consultative approach is essential. Anthropological expertise and gram sabha participation (as mandated under PESA, 1996) can ensure legitimacy.
3. Advancing Substantive Equality: Such legislation would move beyond formal equality to substantive equality—empowering tribal women as economic stakeholders rather than dependents.

Conclusion

As President Droupadi Murmu observed, development must empower the last person without erasing identity. A just inheritance framework must uphold tribal culture while ensuring daughters’ dignity and constitutional equality.