There is still some distance to go

ohn the past 100 years, restrictions on the property rights of Hindu women have undergone various changes. A 2000 report of the Law Commission of India notes that the first legislation bringing women into the inheritance regime was the Hindu Inheritance (Amendment) Act of 1929. , inheritance and succession. It granted better property rights to women but was confusing and gave rise to several anomalies. The Hindu Law Committee established in 1941 introduced the Hindu Code Bill to the Legislative Assembly in 1947, but it had to be abandoned in the face of strong resistance from Orthodox sections of society. Later, when the Hindu Succession Act 1956 (HSA) came into effect, it granted significant rights, but still failed to introduce equal inheritance rights for women.

The unresolved issue of farmland

Several of the shortcomings of the HSA were addressed by amending law in 2005, but the implications of a key change have not been fully accepted by all states. Section 4 (2) of the unmodified 1956 HSA was a distinct source of gender inequality. He said the HSA does not affect the provisions of any other law that prevents fragmentation of farms, establishes land ownership ceilings, or provides for the devolution of tenancy rights on these farms. Simply put, section 4 (2) explicitly excluded the inheritance of tenancy rights to agricultural land from the scope of HSA 1956 and left that inheritance to be governed by state land laws.

The Parliament’s Standing Committee on Law and Justice in its report on the bill amending the Hindu Succession Bill 2004 noted various views on Article 4 (2). After hearing the arguments for and against retaining the section, the report recommended that the 1956 HSA be amended to remove section 4 (2) as it was a barrier to gender equality.

With the 2005 amendments, Parliament deleted section 4 (2) of the 1956 law.

Several academics and women’s rights activists had hoped that removing this section would end gender discrimination in inheritance of farmland, but the evidence unfortunately points to the contrary. Despite the removal of section 4 (2), several states, including Punjab, Himachal Pradesh, and Uttar Pradesh, continue to enforce land laws that deny women the right to inherit agricultural land.

States continue to change inheritance rules

In 2006, the state of Uttar Pradesh repealed several obsolete laws and passed the UP Tax Code, 2006. Under the new provisions, an unmarried daughter receives the same inheritance rights as a son, but a married girl receives lower rights. In effect, this means that girls in Uttar Pradesh must choose between marriage and inheritance. This contradicts HSA, which does not distinguish between married and unmarried girls.

Although the state passed new amendments in 2020 and became the first state to explicitly recognize the inheritance tax third sex, the state has not put an end to discrimination against married girls.

A range of overlapping laws

Articles 245 and 246 of the Constitution of India create a threefold distribution of legislative powers between the Center and the States. This distribution is made by three lists in the seventh annex to the Constitution: the Union list, the list of States and the concurrent list.

Important to our discussion, while agricultural land falls under entry 18 of the state list, issues related to “wills, intestate succession and inheritance” are included in entry 5 of the concurrent list. In the case of farmland inheritance, the overlap between these two entries has challenged the comprehension of various courts.

Divergent opinions of the courts

In this context of legal plurality and competing values, many judgments of state courts have sought to clarify the relationship between Union law and state law in matters of agricultural land inheritance.

In Nirmala v. NCT Government (2010) the Delhi High Court has declared that the deletion of Section 4 (2) of the 1956 HSA allows the HSA to override any other law in force before the section was deleted, as that law is inconsistent with the HSA. He also mentioned that the deletion of section 4 (2) is a conscious act of Parliament, which clearly did not want the unequal treatment of women pronounced in the Delhi Land Reform Act 1954 and other laws. similar continues.

In RoshanLal vs. Pritam Singh (2018) the High Court of Himachal Pradesh came to a similar conclusion. The court referred to the continuing social struggle to amend the old Hindu law to create a more equitable, cohesive and gender-consistent system of jurisprudence. She noted that the object and intention of removing Article 4 (2) was to provide absolute rights to women, regardless of the nature of the property a woman holds.

However, in Archna versus Dy. Director of Consolidation, Amroha (2015), the Allahabad High Court ruled that the state land law would prevail over the HSA. The tribunal began by clearly explaining why Union law must prevail over inconsistent state law when the laws deal with the same subject and are incompatible with each other. The court ruled that the UP and HSA land laws do not shy away from dealing with different subjects, although the analysis is admittedly a bit difficult to follow. The tribunal also concluded that while there is reluctance between the state and the competing lists in this case, the assent of the President of India to the UP Act allows that law to prevail.

There is therefore a clear disagreement between the state courts.

A recent opinion from the Supreme Court of India could shed additional light. In Babu Ram v. Santokh Singh (2019), the Court considered whether the preferential rights of co-heirs under section 22 of the HSA would apply to agricultural land. The court distinguished between transfers made inter vivos (while alive) and land transfers by inheritance (automatically occurring after the death of the owner). States are competent to legislate on inter vivos transfers of agricultural land, while the Center and the States share jurisdiction over transfers of all types of land by inheritance. The court ruled that the co-heir preferential rights clause described in the HSA would apply to agricultural land since state law does not contain a corresponding provision.

A distance still to be covered

Last year, the Supreme Court ruled loud and clear that daughters – regardless of marital status – have the same rights as sons to inherit family property governed by the HSA. A similar declaration is needed to uphold the rights of girls on farmland.

“This disagreement between the courts regarding the inheritance of tenancy rights to agricultural land deserves the attention of Parliament, which can pass a comprehensive law on the equal rights of all girls – regardless of their religion – in all kinds of land, “said Professor (Dr) Kiran Gupta, University of Delhi.

Such a comprehensive law can go a long way in ensuring full legal rights for all girls and help India take giant strides to ensure justice for its daughters.

Authors: Shipra Deo is the director of women’s land rights in India, Landesa and Robert Mitchell is the senior director of the Asia region, Landesa.

This article is part of an editorial series by the Property Rights Research Consortium, a network of leading Indian academic institutions and think tanks that produce land and property research in India, for LiveLaw.

Amalia H. Mercado