No Women’s Land

Succession laws discriminate against women when it comes to inheriting agricultural land while it has brought them on par with men when it comes to family property. This bias needs to be corrected   

By Nayantara Roy

In India, succession to property is governed for the most part by the personal laws of different religions. Hindu laws of succession have been improved and upgraded over the years with the idea of bringing women at par with men in terms of inheritance. However, succession to agricultural land is governed by state laws which are not based on religion and apply equally to all persons. Succession to agricultural land has been viewed mostly from the perspective of the need to move away from the zamindari system and give land to the tiller of the soil.

But in many states women have been specifically kept out of the line of succession on the excuse that it would lead to fragmentation of landholdings.

STATE LAWS PREVAIL

The 2011 Census reports: “For the first time since Independence, the absolute increase in population is more in urban areas than in rural areas.” With a large number of men migrating to cities in search of jobs and farming being handled by women, former IAS officer and former Member National Advisory Council, NC Saxena says in the magazine CFO Connect that the time is now ripe for women farmers to own the land they farm. According to him, the position of women regarding inheritance of agricultural land is roughly the following: In Haryana, Himachal Pradesh, Jammu and Kashmir and Punjab, daughters and sisters do not inherit agricultural land at all. Widows and mothers have been given some rights but the rights of male relations through the male line get a clear preference in the order of succession.

Saxena says that in Telangana on the other hand, there is a specific provision that the Hindu Succession Act (HSA) will apply to Hindus for all properties. In states like Rajasthan and Madhya Pradesh personal laws apply to agricultural land also, although what appears on the books is not always in consonance with what happens on the ground. Saxena also presumes that personal laws apply in Gujarat, West Bengal, Karnataka, Kerala, Andhra and Tamil Nadu as their laws pertaining to agricultural land do not set out an order of inheritance. The situation in Bihar and Orissa is similar except for the clause that occupancy rights are subject to, “any custom to the contrary”. This exception would allow, what Saxena calls “gender-inegalitarian” customs, to prevail wherever they existed before.

The Hindu Succession Act, 1956 brought in reforms enabling Hindu women to succeed to intestate immovable property. But Section 4(2) kept agricultural land out of the purview of the Act. This Section was repealed by the 2005 amendments made to the Hindu Succession Act.  Repealing section 4(2) of the HSA should have led to changes in laws relating to equal rights in succession to agricultural land, at least for Hindu women. 

Delhi has given widows inheritance rights for agricultural land, but not daughters. In Uttar Pradesh, daughters and sisters do inherit agricultural land, but they are low in the order of succession. The new UP Revenue Code, 2006 which came into force in 2015 has made many welcome changes to revenue laws in the state including consolidating the law by repealing 32 Acts. But for succession to agricultural land, in cases where there is no will, married daughters only inherit if there are no widows, male lineal descendants, the mother and father of the deceased or an unmarried daughter.  Section 107 of this Act allows the owner to dispose agricultural property by making a will so technically they have the option of willing it to anybody they want to, ignoring the restrictions of intestate succession. How many know of this provision, or use it to benefit their daughters remains to be seen.

FLAWED REFORMS

The Hindu Succession Act, 1956 brought in reforms enabling Hindu women to succeed to intestate immovable property. But Section 4(2) kept agricultural land out of the purview of the Act. This Section was repealed by the 2005 amendments made to the Hindu Succession Act.  Repealing section 4(2) of the HSA should have led to changes in laws relating to equal rights in succession to agricultural land, at least for Hindu women.  The presumption is that now Hindu women at least, inherit agricultural land in the same manner in which they inherit other property, equally with their brothers.

Agricultural land is in exclusive domain of State Legislature and Parliament has no power to enact any law in this respect. Section 4(2) was only by way of clarification. On its basis, it cannot be said that after its deletion, Hindu Succession Act, 1956 suo moto applies to agricultural land.” —Allahabad High Court

The NGO, Lawyers Collective, in its Women’s Rights Initiative report for the United Nations Development Fund for Women (UNIFEM) says that it would have been helpful if when repealing Section4(2) the Act had also expressly stated that the HSA applies to agricultural land over and above state laws. The report says that the amendment appears to have created a distinction between the rights of Hindu women and the rights of non-Hindu women on account of the fact that state agricultural land laws apply to all persons regardless of religion. Therefore, the rights of non-Hindus remain unchanged. Nevertheless, the improved position of Hindu women at least was lauded by the report as, “the amendment of 2005 brought all agricultural land at par with other property and made Hindu women’s inheritance rights in land legally equal to men’s across the states, overriding any inconsistent state laws”.

However, a 2014 judgment of the Allahabad High Court has put a spanner in the works. In Archna vs Deputy Director of Consolidation Amroha and Ors, a judgment by Justice Ram Surat Ram held that the provisions of the Hindu Succession Act are not applicable to agricultural land in Uttar Pradesh. The court held that “agricultural land is in exclusive domain of State Legislature and Parliament has no power to enact any law in this respect. Section 4(2) was only by way of clarification. On its basis, it cannot be said that after its deletion, Hindu Succession Act, 1956 suo moto applies to agricultural land”.

This judgment directly affects Hindu women, by taking away the rights that the removal of Section 4(2) of the HSA gave them.  Legislations like the UP Act also affect women from other religions.  Even though their personal laws may permit them to get a share, legislations such as the UP Act, prevent the devolution of agricultural property in terms of personal law. These Acts impose different rules for succession, effectively depriving some women from inheriting agricultural property.

DEPRIVING WOMEN

In a blog for the Council on Foreign Relations, Asok Sircar, who works with the NGO Landesa says: “That women do not inherit land impacts India’s ability to climb out of poverty. First, it is clear that women lack access to the tools (credit) and programs (agricultural extension services) they need to climb out of poverty. Second, as a wealth of research indicates, when women have control over land, they direct more of their income than do men toward their children’s education and nutrition. This means that most rural women across India inherit poverty not property generation after generation. As a result, India is missing an opportunity.”

Depriving women from inheriting agricultural land was sought to be justified with the excuse that it was in order to prevent fragmentation of land holdings.  The logic for this unequal treatment was based on the argument that after marriage, women departed from the folds of their natal families, either physically or socially, and permitting them succession rights would lead to her husband’s family gaining the land.  Of course, the entire logic is predicated on the assumption that a woman is incapable of taking independent decisions.

Depriving women from inheriting agricultural land was sought to be justified with the excuse that it was in order to prevent fragmentation of land holdings. 

Fragmentation of landholdings is uneconomical. Therefore, many states have land consolidation laws. These laws were enacted even in states where women did not inherit agricultural property such as Punjab. In fact, if land is to be consolidated one would think that a family might prefer to have a sister or daughter as their neighbor, rather than a stranger!

To prevent fragmentation one suggested solution is that while women should be given equal inheritance rights it could come with a “first option” clause. This would mean, for example, that if a daughter was planning to sell agricultural land inherited from her father she would have to first offer it to her brother or other heirs of her father. A mechanism would have to be put in to ensure that she gets a fair price and that this clause does not become a method of depriving her of her rights.

Another mechanism may need to be put in to ensure that effective control over land inherited by a woman vests with her and the land does not add to the items of economic control over her by her brother, husband or in-laws. This may even help cut down on fragmentation as such siblings may be encouraged to work in cooperation with each other, consolidating the holdings.

Clearly, depriving women of agricultural property rights is not the answer to preventing fragmentation. As Saxena says: “Women without independent resources are highly vulnerable to poverty and destitution in case of desertion, divorce, or widowhood. In parts of western and northwestern India, not uncommonly, rural women even from rich families, deprived of their property shares when widowed, can be found working as agricultural laborers on the farms of their well-off brothers or brothers-in-law. Among them, the fate of deserted and divorced women is far worse….. Tenure security, and especially titles, can empower women to assert themselves better with agencies that provide inputs and extension services.”

He also says that women tend to spend on basic household needs, unlike items on men’s shopping list like alcohol or tobacco!

Article 14 of the Constitution guarantees equality to all. Article 15 promises women freedom from discrimination. Excluding women from inheriting agricultural land does not serve any useful purpose, but seems only to increase poverty and destitution in many cases. As former UN Secretary-General Kofi Annan put it: “Gender equality is more than a goal in itself. It is a precondition for meeting the challenge of reducing poverty, promoting sustainable development and building good governance.”

Lead picture:  Women are encouraged to labor but when it comes to owning farmland, they are discriminated. Photo: UNI