Law is an Instrument of Economic Justice to Tribal Women: An Experience of Madhu Kishwar v. State of Bihar

Abstract

Some writ petitions (PIL and individual writ) were filed under Article 32 of Constitution of India against the State of Bihar to the Supreme Court. Public Interest Litigation was filed by the editor of ‘Manushi’ (a magazine which takes up the matters to ameliorate the socioeconomic backwardness of Indian women and to secure them equal rights) Smt. Madhu Kishwar, on behalf of the tribal women of Bihar. Individual petitioners were Smt. Sonamuni and Smt. Muki Dui who were widow and married daughter of Muki Banguma, belonged to Ho tribe of Singhbhum District of Bihar who were denied of their right to succession over the property of their deceased husband and father. By challenging the constitutional validity of sections 6, 7, 8 and 76 of the Chhota Nagpur Tenancy, 1908 and customary law prevailing in Bihar and other customary law operating in other parts of parts of India which exclude tribal women from inheritance of land or property belonging to their father, husband, mother, confer the right to inheritance in favour of male heirs or lineal descendants in the male lines only, writ petitions sought declarations from the Supreme Court that the above-mentioned sections and the existing customary laws of tribal communities of Bihar and the rest of India were ultra vires Articles 14 and 21 of the Constitution of India. The tribal women toil, share with men equally the daily sweat, troubles and tribulations in agricultural operations and family management. Their discrimination based on the customary law of inheritance (reinforced also by statutory law) is unconstitutional, unjust, unfair and illegal. The above-mentioned writ petitions raise a common question of law that is whether female tribal is entitled to parity with male tribal in intestate succession. An affirmative answer to this issue would have gone a long way not only in ameliorating the socio-economic backwardness not only of tribal women of Bihar or whole India or all Indian women, but also will establish their ‘Right to Equality’, ‘Right to Dignity’ as well as ‘Right to Development’ as mandated in Constitution of India. However, very unfortunately, the Supreme Court in Madhu Kishwar v. State of Bihar (1996) judgment (a majority decision of M.M. Punchhi and Kuldeep Singh, JJ, K Ramaswami J dissenting) has partially recognised the Fundamental Rights of Tribal Women of Bihar and leaving the other important issues to the Government for taking decisions. In this context, in this paper, firstly, tribal women’s’ ‘Right of Succession’ is analysed from various perspectives in the lager canvas of Fundamental Rights and Human Rights Jurisprudence to find the answer why it is connected to the above-mentioned 3 rights and including Equality Clause; and secondly, Supreme Court’s judgment in Madhu Kishwar v. State of Bihar which did not strike down the impugned sections of Chhota Nagpur Tenancy act is also critically analysed from different angles, in the canvas of India’s commitment to the international community as reflected in resolutions/declarations of international covenants.

Keywords: Economic Justice, Tribal Women, Madhu Kishwar v. State of Bihar

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