Judicial Approach Of Constitutional Protection Of Tribal Women In India
Author: LawSphereX
Category: Constitutional & Human Rights
Published:
Updated:
JUDICIAL APPROACH OF CONSTITUTIONAL
PROTECTION OF TRIBAL WOMEN IN INDIA
Dr. Kailas Vasave, Assistant Professor of Law, Maharashtra National Law University, Nagpur
ABSTRACT
Tribal women in India are the most vulnerable and depressed section of society. Despite of constitutional guarantee of equality under the Constitution, the protection of tribal women was least thought of in its implementation and practices. The customary practices of tribal communities upheld the social status of tribal women on an equal basis, the rights were not recognized par with the tribal male. The unequal treatment given to the tribal women was challenging the very principle and equality code among the tribal communities. Under Customary practices, tribal women are traditionally ignored to acquire inherent property rights from the ancestral property. The ownership of property rights and its titles among the tribal women are very less compared to tribal men.
The Indian judiciary was protecting the women's rights of Muslims, Hindus and Christians equally to the men but there was an absence of precedents to make drastic changes to protect the rights of tribal women lacking a pragmatic approach to address the issues of protection of tribal women enshrined into the Constitution of India. Keywords: Constitution, Protection, Tribal Women, Equality, Rights
Judicial approach of Constitutional Protection of Tribal Women in India - Dr. Kailas Vasave1 The Adivasi known as Scheduled Tribes (ST) under the Constitution of India, also referred to as aborigines of India are still practising their tribal lifestyle, customary practices and cultural code. 2 The Scheduled Tribes in India are the communities which were recognized by the President under Article 342. 3 Thus, the Constitution provides special protection and facilitates opportunities for their well-being at par with other societies. The founding fathers of the Constitution recognize the unique way of tribal livelihood, which is very simple and needs to be addressed with special caution in a transitional period. Therefore, the Indian Constitution aims to develop tribal people without disturbing their code and conduct by balancing tribal life with harmony.
4 However, tribal women in the community are facing less gender discrimination in the traditional set-up. Therefore, the new constitutional requirements are absent in the tribal society. The Constitution of India believes in equality among men and women. The cases of violation against women’s human rights such as domestic violence, bride burning, child abuse, female foeticide, sexual harassment at the workplace and infanticide happened in a patriarchal society which differs from the tribal society. 5 However, issues like child marriage, superstitions, denial of property rights, inaccessible education and political rights, etc. were observed in the tribal society.
Protection of Tribal Women's Rights under the Constitution of India The judicial approach to the constitutional protection of tribal women in India is multifaceted, reflecting the country’s commitment to ensuring equality and justice while respecting the unique cultural and social contexts of tribal communities. The principle of equality is the basis of the Constitution which is formed by various means and mechanisms. This measure not only cast upon duty to protect the rights of women but to make certain special provisions in the form of positive discrimination availed in the Constitution. From the beginning of the Constitution
1 Assistant Professor of Law, Maharashtra National Law University, Nagpur.
2 M P JAIN, INDIAN CONSTITUTIONAL LAW, EIGHTH ED. LEXISNEXIS, 2018
3 INDIA CONST., art. 366, cl (25)
4 Thresiamma V.G. “Making Of The Indian Constitution And Debate On The Issue Of Tribal Development.” THE INDIAN JOURNAL OF POLITICAL SCIENCE, vol. 72, no. 1, 2011, pp. 179–89. JSTOR, http://www.jstor.org/stable/42761819. Accessed 21 Aug. 2024.
5 Chhibber, Bharti. “Women’s Rights Are Human Rights.” WORLD AFFAIRS: THE JOURNAL OF
INTERNATIONAL ISSUES, vol. 22, no. 1, 2018, pp. 122–35. JSTOR, https://www.jstor.org/stable/48520052. Accessed 21 Aug. 2024.
in the Preamble, Fundamental rights, Directive Principles, political reservation and many more protections are enshrined in the Constitution. Articles 14, 15, and 16 are the trinity of Articles that prohibit any kind of discrimination against women and the State is enable to provide special protection to the women by legislative enactments. To protect the rights of tribal women, general principles like equity, fair play, justice, reasonableness and good conscience apply to each case. The Constitution prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth which is equally applicable to the tribal. To protect the special rights of women states are duty-bound and allow the state to make special provisions for women and children, including tribal women.
The state policy should ensure that it promotes the interests of Scheduled Castes and Scheduled Tribes (SCs and STs) by protecting them from social injustice and all forms of exploitation. There are several instances, wherein the judiciary has played a significant role in enforcing equality and protecting the rights of tribal women. In the case of Vishaka, the apex court has expanded the understanding of equality and protection, leading to the formulation of guidelines to prevent sexual harassment at workplaces, which benefits tribal women as well. Apart from this courts have consistently emphasized the need for special provisions to safeguard tribal women, ensuring that their rights are not overlooked due to their marginalized status. However, several reports are showing that all these provisions remain on paper which not address the atrocities and sexual offences against tribals.
According to the National Crime Records Bureau, Madhya Pradesh had the second-highest number of child rapes (3,641) and the third-highest number of rapes (3029) in 2022. Rape accounted for 13. 4% of all crimes against STs in the nation that year, with the State recording the greatest number of ST-related offences (2,979) of any Indian State. 6 As per NCRB Reports 2022, Crime against Scheduled Tribes (ST) was reported in 10,064 instances overall, representing a 14. 3% rise from 8,802 occurrences in 2021 wherein most of the offences are committed against the tribal women. 7 6The violation and vulnerability of M. P. ’s tribal women,
THE
HINDU,
June 4, 2024. https://www.thehindu.com/news/national/madhya-pradesh/the-violation-and-vulnerability-of-mps-tribalwomen/article68236368.ece 7 Crimes against women, children, SC/ST, and cyber-crimes, increased in 2022: Crime in India report, THE HINDU, December 3, 2023. https://www-thehindu-com/news/national/crimes-against-women-children-scst-andcyber-crimes-increased-in-2022-crime-in-india-report/article67602315.ece
Customary Rights and Protection of Tribal Women Article 13 and the other articles8 similarly provided in the Constitution recognize the importance of customary laws in certain tribal areas, which often include norms about the status and rights of women. The judiciary often grapples with balancing customary laws and constitutional rights. For example, in cases where customary practices discriminate against women, courts may intervene to ensure that fundamental rights are upheld, while also considering the importance of preserving tribal traditions. In the case of Madhu Kishwar, 19969 it was stated that tribal women's constitutionally guaranteed right to livelihood is compromised, a right that the female tenant shared with the previous male tenant.
The direct members of the last male tenant have the constitutional right to continue keeping the land as long as they continue to rely on it for income since doing so would leave them penniless. This is done to defend their right to a livelihood. Wherein the SC categorically directed the State of Bihar to remove the absurdity of the provisions of the Succession Act which discriminates against tribal women. This same ratio was reiterated in Kamla Neti (Dead) Through Legal Representatives v. Special Land Acquisition Officer and Ors. ,10 whereby it was noted that the general principles included therein, which are consistent with justice, equity, fairness, justness, and good conscience, would apply to female members of Scheduled Tribes under the said Act's provisions.
Additionally, it was decided that, under the basic guidelines of the Hindu Succession Act of 1956, women of Scheduled Tribes would receive the property in equal shares with the male heirs and with full rights upon the death of their parent, brother, or spouse as heirs through intestate succession. Property signifies wealth and status in society, by recognizing and protecting tribal women's property rights is a necessity of today's world. Property and Succession Rights The Hindu Succession Act, 1956 which was amended in 2005 provided equal rights to women in ancestral property to Hindu women, however, the same act did not apply to the tribal because the tribal are not a part of Hindu religion. The tribal customary practices are binding upon the tribal women which is discriminating in nature regarding succession rights.
Each tribal community have their special customary laws and traditional practices whereas different states have specific laws governing property and succession in tribal areas, which often recognise
8 INDIA CONST. art. 371A
9 Madhu Kishwar vs. State of Bihar, (1996) 5 SCC 25
10 KamlaNeti(dead)through LR v. Special Land Acquisition Officers and Ors(2023) 3 SCC 528
customary practices. The courts have examined the intersection of statutory laws and customary practices by judicial intervention. In many cases where tribal customary laws were found to be discriminatory against women in terms of property and succession, the judiciary has often taken a corrective approach to ensure that women’s rights are safeguarded. The Hon’ble Justice M. R. Shah and Justice Murari categorically stated that there is no reason to deny succession rights to tribal women, despite of fact that Hindu women get an equal share from the ancestral property, the same right must be ensured to the tribal women at part with the other women. 11 Gender equality and property rights a critical issues in the tribal society which need to be resolved by accessing customary roots in the society with constitutional norms.
Under the traditional customary practice, tribal women benefitted from limited rights of inheritance, because customary practices were absent regarding it. 12 Political Reservation for Tribal Women The Constitution of India envisages a special provision for Scheduled Caste and Scheduled Tribes in the House of the People and State legislature by providing political reservation for effective representation at the policy-making level to their proportion of the population. There can be reservation of seats in the House of the People nearly to the same proportion of their population as per recently published census. 13 The same sort of protection and reservation is availed at the State level wherein seats of the State Legislature shall be reserved for Scheduled Tribes based on their population proportion.
In the House of the People, there was only 13% (73 out of 543) overall women's representation which is much less as compared to men. Among them, 15% (5 out of 47) of women MPs are elected from Tribal Reserved Constituency which is not par with men. 14 After the 73rd and 74 Constitutional Amendment Acts, there shall be a reservation in local panchayat for Scheduled Tribes in every Panchayat considering their population. 15 The Constitution mandates reservations for women in local bodies (panchayats and municipalities), including a specified reservation for SCs and STs. By this provision, special protection is availed to the tribal women, wherein one-third of the total seats were reserved to the women
11 Ibid.
12 Nawang Chhodan, Kashyap, Inheritance, Gender Equality and Customary Tribal Laws: Women’s Perspective, IJNRD, Volume 9, Issue 4 April 2024. Available at https://www.ijnrd.org/papers/IJNRD2404420.pdf.
13 Article 330, INDIA CONST.
14 New Lok Sabha will have fewer Women, THE WIRE, (June 6. 2024, 02 PM). Available at
https://m.thewire.in/article/women/new-lok-sabha-will-have-fewer-women
15 INDIA CONST. art. 234D,
belonging to the Scheduled Tribes. This policy is extended to the office of the Chairpersons in the Panchayat at the Village level. 16 The replica of the political reservation to the Scheduled Tribes in every Municipality is extended with the same nature of the Village Panchayat. 17 With these Constitutional amendments, tribal women's representation in politics has relatively increased. 18 Contemporary Issues on the Protection of Tribal Women's Rights The tribal women enjoy better status and are treated equally in the tribal society, however, several studies reflect that the tribal women face poor economic conditions. True equality was not reached for the tribal women while considering the malnutrition, education, employment, health and recognition of property rights. The family structure, Child fertility, literacy, forced labour, etc.
are the concerns which need to be addressed properly. 19 Due to displacement and migration, tribal women face the issue of sexual exploitation, atrocities and discrimination outside the tribal world. There are several instances, wherein heinous crimes against tribal women like rape and murder happened which were not properly addressed by the authority. 20 Conclusion The judicial approach to the constitutional protection of tribal women in India reflects a nuanced understanding of balancing constitutional guarantees with the preservation of tribal customs and traditions. The courts strive to uphold principles of equality, protect customary rights, ensure fair property and succession rights, and enhance political representation for tribal women.
16 INDIA CONST. art. 234D cl. (4),
17 INDIA CONST. art. 243T
18, doi: https://doi.org/10.4135/9789353884581.
19 Aparna Mitra, The status of women among the scheduled tribes in India, THE JOURNAL OF SOCIO-
ECONOMICS, Volume 37, Issue 3, 2008, Pages 1202-1217, ISSN 1053-5357, https://doi.org/10.1016/j.socec.2006.12.077. 20 Atrocities Against Dalit and Tribal Women, (Aug 10, 2024, 10PM), https://evidence.org.in/atrocities-againstdalit-and-tribal-women/
References Books
1. AMBAGUDIA, JAGANNATH AND VIRGINIUS XAXA. HANDBOOK OF
TRIBAL POLITICS IN INDIA. FIRST EDITION, MATHURA ROAD, NEW DELHI:
SAGE PUBLICATIONS PVT LTD, 2021.
2. M P JAIN, INDIAN CONSTITUTIONAL LAW, EIGHTH ED. LEXISNEXIS, 2018
Journal Articles
1. Thresiamma V.G. “Making Of The Indian Constitution And Debate On The Issue Of
Tribal Development.” THE INDIAN JOURNAL OF POLITICAL SCIENCE, vol. 72, no. 1, 2011, pp. 179–89
2. Chhibber, Bharti. “Women’s Rights Are Human Rights.” WORLD AFFAIRS: THE
JOURNAL OF INTERNATIONAL ISSUES, vol. 22, no. 1, 2018, pp. 122–35
3. Nawang Chhodan, Kashyap, Inheritance, Gender Equality and Customary Tribal
Laws: Women’s Perspective, IJNRD, Volume 9, Issue 4 April 2024.
4. Aparna Mitra, The status of women among the scheduled tribes in India, THE
JOURNAL OF SOCIO-ECONOMICS, Volume 37, Issue 3, 2008, Pages 1202-1217 Web Sources
1. The violation and vulnerability of M.P.’s tribal women, THE HINDU, (June 4, 2024. 10
AM)https://www.thehindu.com/news/national/madhya-pradesh/the-violation-andvulnerability-of-mps-tribal-women/article68236368.ece
2. Crimes against women, children, SC/ST, and cyber-crimes, increased in 2022: Crime
in India report, THE HINDU, (December 3, 2023. 12 AM) https://www-thehinducom/news/national/crimes-against-women-children-scst-and-cyber-crimes-increasedin-2022-crime-in-india-report/article67602315.ece
3. Atrocities Against Dalit and Tribal Women, (Aug 10, 2024, 10 PM),
https://evidence.org.in/atrocities-against-dalit-and-tribal-women/