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The Hindu Succession Act: Ending gender bias Draconian law a threat to
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On Record
Reflections Profile Diversities — Delhi Letter
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The Hindu Succession Act: Ending gender bias The Hindu Succession (Amendment) Act, 2005, in one stroke, makes “the daughter of a coparcener” “by birth” “a coparcener in her own right in the same manner as the son.” It will be so read “in a joint Hindu family governed by Mitakshara law.” This indeed is a very bold legislative attempt to get out of the traditional inertia and put the son and the daughter on equal footing in the matter of succession, both testate and intestate. The first critical step in this direction was taken through the enactment of the Hindu Succession Act, 1956 (now called the principal Act), when the daughter was allowed a share in the property of her father. However, still she was decidedly and distinctly discriminated, because the son continued to claim the lion’s share: one in the capacity of an heir along with the daughter and another in the dominant position of a coparcener — an exclusive prerogative only of the males to acquire an interest by birth in a joint Hindu family governed by Mitakshara law (as distinguished from the Dayabhaga law). However, once the daughter is also made a ‘coparcener’; that is, a person who acquires an interest by birth, the very purpose of retaining the concept of coparcenary has become infructuous. In my view, its any more retention is likely to make confusion worse confounded. The most telling change through the amending Act has been effected by the substitution of a new section for Section 6 of the principal Act of 1956 that dealt with the devolution of Hindu male’s interest in Mitakshara coparcenary property. The singular objective of the substitution is to equalise the position of the son and the daughter both in respect of their rights and liabilities. This feat has been accomplished by abolishing the principle of survivorship, which is perhaps the most pronounced principal feature of the Mitakshara coparcenary. In functional terms, this meant that when a coparcener died undivided, he left behind nothing to be inherited by his heirs, and the surviving coparceners received what was already theirs. With the abolition of this principal feature, ‘the undivided interest’ of the deceased coparcener, instead of becoming instantly non-existent, will go to his heirs as if he died divided or asked for partition immediately before his death, irrespective of whether he was entitled to claim partition or not. The intriguing feature of the amending Act is that it effectively demolishes the concept of coparcenary, and yet the same is retained! Its demolition may be perceived in two principal ways: by opening the male bastion equally to females and by abandoning the principle of survivorship. What does this mean? A simple illustration may serve the purpose. A Hindu male ‘P’ has a son ‘S’ and a daughter ‘D’. Under the provisions of the substituted new section 6 by the amending Act of 2005, the coparcenary consists of ‘P’, ‘S’ and ‘D’. If a son is born to ‘S’, undoubtedly he (‘SS’) will also by definition become a coparcener by birth. Likewise, ‘S’s son’s son (‘SSS’) will be the coparcener. But what about ‘D’s son or ‘D’s daughter? By virtue of the amending Act, since the daughter is also a coparcener “in the same manner as the son,” and the property shall be held by her “with the incidents of coparcenary ownership,” ‘D’s son or daughter, or both, will also become coparcener(s). And so will be the daughter of ‘S’, if there is any. A coparcenary, in its classical exposition, represents ‘a community of interest and unity of possession’. In it, the interest of one is the interest of all, and the possession of one is the possession of all. The proximity of the Hindu joint family is organised and maintained on the patriarchal principle in which the daughters on their marriage cease to be the members of their parents’ family. By making the daughter by birth a coparcener for all intents and purposes, are we envisaging the creation of a new joint family unit in which the husbands of their daughters (along with other kindred) will also be an integral part? Alternatively, the daughter is deemed to be a coparcener only for the purpose of equal apportionment of patrimony? In my view, the latter is intended, and for achieving this objective, we need not continue to cling to the concept of coparcenary: it is likely to create confusion. In their zeal to equalise, the legislature categorically provides that the daughter in the capacity of a coparcener like the son shall be entitled to dispose of her interest in the coparcenary property by testamentary succession. Under the provisions of the principal Act, there is an anomaly, whereby a male coparcener can dispose of his interest by will, but not by making a gift during his lifetime. The same anomaly is perpetuated vis-à-vis females, conveying that dead hands are more powerful than the living ones! This position is reiterated recently (see AIR 2006 Karnataka 68). To create parity between the heirs of the son and the daughter, the amending Act has introduced four new heirs in Class I of the Schedule. While doing so permutatively, the legislature has missed two heirs, namely the daughter of predeceased son of a predeceased daughter and the son of a predeceased daughter of predeceased son, to the disadvantage of the daughter. In our view, there seems to be no rational for this omission. The amending Act is mainly directed to put the daughter on par with the son by making her a coparcener. This alone is not enough. Coparcenary is an over-arching concept. It involves the primacy of the principle of agnatic succession. The amending Act is silent about it. It makes, for instance, no reference to the provisions of Section 8 of the principal Act that lays down the general rules of succession in the case of males, giving predominance to agnates over cognates. What is desiderated, therefore, is to have a second look at the whole gamut of Hindu law, including the law of succession. Piecemeal legislation, tinkering here and there, would not do. We need to think completely and comprehensively in our lawmaking, especially more when we are determined to dismantle the age-old discriminatory thinking and practices that are so cruelly and brazenly displayed as the alarmingly atypical skewed sex ratio! n The writer is UGC Emeritus Fellow, Department of Laws, Panjab University, Chandigarh |
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Draconian law
a threat to civil liberties The Chhattisgarh Special Public Security Act is draconian in nature and scope. It is said that the Act would help curb the Naxalite menace. However, a legislation which would curtail civil liberties giving scope for large-scale misuse is not acceptable. The legislation has defined unlawful activities in ambiguous terms, curtailing freedom of speech and expression. All those who would voice an opinion contrary to government policies may fall within its ambit as media persons, lawyers, NGOs, trade unionists or even teachers and doctors. Under the Act, the government need not disclose the reasons for declaring an organisation unlawful for whatever period it may deem fit in public interest. Though there is scope for a yearly review, there is no mention that this process will be transparent. The reference of an Advisory Board gives some assurance to the ordinary citizen who maybe falsely implicated. But where will this Board be established? Care is also needed to make this Board accessible to organisations to place their cases in a free and fair manner without being intimidated by government agencies. In a state like Chhattisgarh, it is necessary to provide a fair and impartial face to the Board as this will be the only appeal in the whole system. Keeping in view the democratic aspirations of the people, a member from the Human Rights Commission, the Women’s Commission or the SC/ST Commission should be included in it. This should not be seen as a token gesture but as an important voice to protect people from harassment and illegal orders issued by the District Magistrates. It is extremely worrisome to read that the Act would penalise all those who would contribute to the “unlawful organisation”. Experience suggests that often audiences at rallies have been held captive through threat or by use of force to attend meetings, feed the cadres and give protection money making the unsuspecting defenseless citizens to become the informers, sympathisers or even “protectors” in the eyes of the law enforcement agencies making them further vulnerable. The Act needs to provide scope for the executive to understand the socio-economic milieu which leads people to become sympathisers. Vagueness in the law will provide the police further opportunities to complete unrealistic targets. Of serious concern is the decision of sending an officer under this law to search money transactions or seize and forfeit it only under the District Magistrate’s directive leaving scope for threat, corruption and gross misuse. POTA was severely criticised under a similar clause. Violence of any form should be condemned but dealing with voice of opposition to government policies need not be curtailed through draconian laws. n The
writer is Project Coordinator, Commonwealth Human Rights Initiative, New Delhi
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On Record Excerpts: Q: Are you happy with the ongoing peace process? A: One cannot deny that the CBMs have brought in an atmosphere of friendly relations between the two nations, the opening of the road and now we will have some sort of trade, but I think it should have more than just finding relations across both sides of the border. It needs to be far more flexible than it is today. Trade can only come in when there is easy accessibility, when the common man in Kashmir can go over and they can come here. Secondly, President Musharraf has made a number of concessions. It is time the Government of India responded to them. The dialogue process needs to be speeded up so that proposals and counter-proposals can be seen and a solution acceptable to both countries is arrived at. The UPA Government has its own problems but the Prime Minister is an honest man and I hope they succeed. Q: What about the second round table scheduled for May? A: My party has already taken part in the earlier round table in New Delhi. We have put forward a very concrete proposal for autonomy and it is now time for the Government of India to respond to it. Q: What kind of autonomy do you want? A: We have published a book carrying our views on autonomy. The resolution on autonomy that was passed by the Jammu and Kashmir Assembly gives a complete picture of the autonomy that we want. We feel if there is something better than that, it can also be incorporated which is acceptable to the people of both Jammu and Kashmir of 1947 and the people of Pakistan. Q: Why raise issues like autonomy and self-rule? A: It is for the Government of India to respond to the self-rule of the Pakistan President and not Farooq Abdullah. It is for Manmohan Singhji to respond to it. Just because 10 people from one party and 10 from another are there to form a government, does it become self rule? Majority of people are not taking part in the elections, the Election Commission itself says so. If you have 10-20 per cent participating in the elections, can you call it self-rule? Q: What about all Central laws? You want them repealed, the Supreme Court’s jurisdiction not extended to Kashmir? A: That will be part of the discussion with the government as to what autonomy they would be able to accommodate. The nitty-gritty will be discussed at that time. Q: Your son and NC President seems to agree to demilitarisation? A: Demilitarisation is a question that the governments of India and Pakistan have to discuss. GOI cannot impose demilitarisation on Pakistan and neither can Pakistan propose demilitarisation of areas in India. Once there is peace between the two nations, the armies will go back to the barracks. Q: Do you think your father made a mistake having agreed to the accession of Kashmir to India? A: Nobody has said that he has made any mistake. I think Omar Abdullah has been quoted completely wrong by the newspapers here. He didn’t say anything like this. Q: So what does Farooq Abdullah today want? A: I want peace, I want freedom from the bombs that are bursting there, the merciless killing, the excesses being perpetrated by the security forces and others. We want a forward movement in the state’s development. We have all the rivers but no electricity. What is the use of saying that we are going to electrify all the villages? For every project that we have to take up, we have to seek Pakistan’s sanction. We need rail service. It has taken 23 years to bring the train to Udhampur and the Prime Minister at that time promised us that it will come to Kashmir in 2007. I would like to see that train from Jammu to Srinagar and Baramullah. Q: What about the NC’s prospects in the by-elections on April 24? A: We will fight all the four seats, one in Jammu and three in the Valley. The party enjoys quite a good position and it will continue to do so. No party except the NC has any solution for the state’s future. Our proposal is accepted by the whole world. Q: Do you see a return to peace soon? A: Solutions will emerge. Conflicts don’t last forever. I am sure, both nations will realise that conflict is reducing their progress and people are the greatest sufferers. When the rest of the world is moving forward, Kashmiri people are going backwards. Q: Do you still want to be the President of India? A: No, I have no such desires. I am quite satisfied with what I am. |
Reflections
I am reproducing an email I received from a friend living overseas, about his recent holiday he had in the United States with his family and friends. The narration is exceedingly hilarious and pregnant with lessons. For me it became a must share…. Here is what Akash (author of the email) wrote: “Weekends are fun in Tahoe, (a Lake on the border of California and Nevada) especially when you are with family and friends. With everyone really down to go, all it required was a critical mass of people. With the Moolchandanis, the Lodhas, Raichurias and the Bhatias, Tahoe was all set, come rain or shine. “By Thursday, the cabin was reserved and the van to carry eight was already gotten at a price that seemed like a steal. Come Friday, and all hell broke loose. Kshama (one of the group) found out that the rental company, who gave us that incredible deal, messed up big time with the number of people, and actually had given us the ‘steal’ deal for a van carrying five persons. With a lot of phone calls back and forth with the car company, she finally realised that it was already 5 pm and the car rental not in the bag yet. With her dance practice breathing down the hour she delegated the task to Sunil and JP (also group members). “As is their want they managed to wring out a deal with the car rental company at the last minute. Voila, we had a 12 seat van to carry eight of us. We were gonna stretch out in the van. Like I mentioned, come rain or shine, nothing was going to stop us. But did I mention SNOW?” Read on... “By the time we hit the highway, it was already 10.30 pm and pouring. On top of that, only JP was authorised to drive the van. We wanted to look for the rental car office somewhere on the way to add me, as the second driver. It was raining as if heavens were coming crashing down. But it didn’t matter; we were on our way to Tahoe! “As we neared Tahoe, the rain turned into snow. While we contemplated whether to use chains or not, the cops made the decision for us: We had to use chains! So we waited till the chain guys installed the chains on the tires. By then, the visibility had reduced to a few feet. JP then drove amazingly well through the snow, in what seemed like eternity to get to the cabin. With me, the navigator, looking at the shoulder to see if we were still on the road or not, and JP relying on his instincts we reached the cabin at 5 am. “A couple of hours of sleep, a few of us were up, to go skiing. A few minutes of driving in the van, and we heard some parts of the chains snap and hit the base. What a ride! We carried on with our skiing with some at the higher slopes and yours truly at the bunny ones. “On our way back, the noise became unbearable. We realised we didn’t need the chains anymore and decided to take them off. Upon unhooking the chains, the noise not only got louder, but something kept crunching against the axle. The chains, instead of coming off, were all entangled around the axle. “So now we were, stranded in the middle of the road, with traffic zooming past us, and we having no clue what to do. We took turns to have a go at dis-entangling the chains, but no such luck. What was even scarier was the traffic around us, and all it could take was one careless driver to hit us, or go over our legs. Finally, a good-hearted Samaritan came to see what was wrong, but helped us with only one chain, and that too the easier one. We were now stranded with the other chain. Eventually, I found the link to open up the chain, and hey presto, soon enough the chains fell apart, and we were free! Aaah, the joy of driving at 50 mph! “We found a nice white expanse on the way, stopped our van and played for a whole hour in the fresh, white, pristine snow. One by one, everyone was dunked in it. Try running in snow? It’s worse than trying to run in a swimming pool! We reached the bay area, well in time before sunset, but left our hearts in Tahoe. “We did an awful lot, in less than two days, no computers and no cell phones (I forgot mine at home!). Completely unplugged from work and plugged into nature. The shimmering snow capped Sierra Nevada range, with the icy blue Lake Tahoe remains forever etched in memory.” Lessons? Remember hearing: ‘Where there is a will there is a way’? And remember having heard: ‘Man proposes God disposes’? And that: ‘One and one are eleven’. Basically it is all in the mind, while remaining synergistic as did the Moolchandanis, the Lodhas, the Rachuria and the
Bhatias.
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Profile The pavement adjoining New Delhi’s Jantar Mantar, the scene of Medha’s fast last week, attracted such high and mighty as three Union Ministers, former Prime Minister V.P. Singh, writer Arnudhati Roy, social activist Vandana Shiva, Marxist leader Brinda Karat, environmentalists and people from almost all walks of life. Rarely, people of Delhi have seen such a massive support as extended to this 52-year-old campaigner and it was spontaneous. As her condition deteriorated on the seventh day of her fast, the police, in a mid-night swoop, shifted her to All India Institute of Medical Sciences. Fasts have been a potential weapon in Medha’s armoury since 1985 when she mobilised massive marches and rallies against the Narmada project. Medha has been the moving spirit behind “Narmada Bachao Andolan” (NBA) for over two decades, crying halt to construction of a series of dams planned over Narmada, India’s largest west flowing river. She is loved, virtually worshipped, by villagers and city folks and now known the world over. Her source of inspiration is Baba Amte and her followers include tribal and human right activists and environmentalists. The World Bank-financed Sardar Sarovara Dam was the keystone of the Narmada Valley Development Project, one of the world’s largest river development projects. Upon completion, Sardar Saravor would have submerged more than 37,000 hectares of forest and agriculture land. The dam and its associated canal system would also displace some 3,20,000 villagers, mostly from tribal communities, whose livelihoods depend on these natural resources. In the wake of Medha’s unrelenting campaign the World Bank took the unprecedented step of reviewing the dam and came to the conclusion that the project was ill-conceived. Unable to meet the World Bank’s environmental and resettlement guidelines, the Indian Government cancelled the final instalment of the World Bank’s $450 million loan. Eminent journalist, Jacques Leslie in his new book, Deep Waters: The Epic Struggle Over Dams, Displaced People and Environment, gives a moving account of Medha’s struggle. He writes: “Patkar and most other members of her group, Narmada Bachao Andolan, have an ascetic sensibility and an intense sense of purpose; hell on earth is straight ahead, and these activists have nothing to loose. Years of Andolan, hunger strikes and other protests eventually forced the World Bank out of the Narmada project, an iconic victory for Medha. But the Indian government soon vowed to provide the remaining funding for the dams, and even Patkar’s threat to drown herself in the rising reservoir have not stopped the project”. Narmada, says Leslie, has become prototype of the big third world dam — expensive, environmentally ruinous, and essentially impossible to stop. Patkar and her activist group, NBA, came incredibly close; they forced the World Bank, for the first time, to back down from funding a dam. By a Supreme Court verdict, the project went ahead and Medha has now been trying to keep the dam from going higher and demanding speedy and satisfactory rehabilitation of the uprooted people. Leslie searches for the source of her incredible courage and commitment, talking to her family and friends of her younger life, and traces “much of her relentless drive to the unhappiness of her early marriage, where her obvious talents were suffocated. When she left finally, she was at her lowest level, very depressed…She couldn’t see what she could do”. Medha’s suffering preceded her career as social activist. “She did not suffer because anti-dam activism required suffering. She suffered first, then found a meaningful expression for it in the valley. Suffering became her fuel and her power and her validation, the proof of her commitment to the cause and the source of her magnetism”, says Leslie. Medha hails from a family which had suffered and made sacrifice for others. Her father participated in the independence movement. Her mother worked in a women’s organisation known as “Swadhar”. After obtaining her Masters degree in Social Work from the Tata Institute of Social Sciences, Medha worked with voluntary organisations in the then Bombay slums for five years as well as tribal districts of North-East Gujarat for two years. She left her position on the faculty of Tata Institute of Social Sciences as well as her unfinished Ph D when she dedicated herself fully to the Narmada Bachao Andolan. The NBA began as a fight for information about the Narmada Valley Development Project and continued as a struggle for just rehabilitation for lakhs of people uprooted by the Sardar Sarovar Dam and other large
dams. |
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Diversities — Delhi Letter Not being cynical when I say that it’s time you either pick up the pen or the pencil. The latest here is to write as much as you can or to draw and sketch. One book launch after another and let’s not overlook the ongoing Kitab Festival. It is sponsored by two publishing houses — Roli and Penguin and several other concerns like ICCR, Airtel, Kingfisher, The Imperial, Etihad Airlines. By now you’d understood the importance of the book — the kitab in today’s socio-cultural setting. It is good that business concerns are coming forward to help and promote the written word. Airtel’s name has surfaced the second time in the last fortnight. Recently, they’d sponsored writer Gurcharan Das’ plays in the Capital. Getting back to the latest on books, two books get launched this weekend — Holy Warriors (Penguin) by Edna Fernandes and Sanjay Suri’s Brideless In Wembley (Penguin). I have just about finished reading Fernandes’ book, which as the sub-title suggests is a journey into the heart of Indian fundamentalism. This London-based journo has travelled all over the country and spoken to the so-called religious leaders as well as to the ordinary folk to know what’s been happening. I particularly liked two chapters. One on what’s been happening today to the Kashmiris in the Valley and the other on why the likes of former Miss India Yukta Mookhy go for election campaigns and more. This book is highly potent as these words would suggest: “Home to all the major religions, India is also inevitably host to virtually every type of religious fanatic...no other nation has witnessed as much proselytization or heard as many war cries in the name of God as India. Hindus have fought Muslims, Christians have sought to convert animists, Sikhs have armed themselves against Muslims and Muslins have declared jihad on the kind of Hindu that took delight in the demolition of the Babri mosque.” Roli have decided to launch their prized book just after this book festival concludes. April 14 is the chosen day for M.J. Akbar’s Blood Brothers: A family saga. It’s the story of his family inter-webbed with his own, tracing it right from his grandfather...and in the backdrop lies fitted details of the politico-religious changes taking place on the Indian scene. The reputed publishing house, Random House, which opened base here only last year, is launching Manju Kapur’s Home later this month on April 26. Some writers are getting hold of film stars to add to the written word. Since film stars wouldn’t even lift their little finger or more or less for free (in every sense of the term), it has come as a surprise that Amir Khan flew down to New Delhi on April 7 for the launch of a well established writer’s latest novel.
Time to save the girl child At a discussion, where we spoke of how education and lessening of poverty could help save children’s future, one of the speakers spoke of an irony in this context. He focused on what’s happening to the girl child in Punjab, which is prosperous in many respects, compared with other states. Yes, reports of female foeticide have been alarming, more so, it’s happening amongst the educated and well-to-do. In a newspaper report, Saroj Nagi, journalist, wrote: “Education, it seems doesn’t play a role in curbing social evils like female foeticide. More and more educated mothers in Delhi, Punjab, Haryana and several other regions in the north are using their education to access modern technology to kill their unborn daughters.” In this context, it seems a positive development that theatre groups and individuals are trying their best to counter this grim scenario. A few weeks back, a Patiala-based theatre person, Pran Sabharwal, got in touch with me to say that his theatre group — National Theatre Arts Society (NTAS) — is holding a series of plays to counter the killing of the girl child. Daaire, a Punjabi musical play by NTAS is a satire against female foeticide. It aims at creating awareness for a change in public attitude, says Sabharwal, who has been staging this play at various platforms in the Capital. Delhi is in need of more such dosages as people here could be attired in the latest from the cowboy belt of the world, but their thinking and mindset could be hypocrisy ridden! At last there’s begun some activity to seal sex determination (of the foetus) clinics in the Capital! Three such sonography clinics were sealed in a day this week. Also just received the news that there’s begun a series of discussion on how to go about stopping this maddening trend of killing the girl child in the womb. And then we call ourselves civilised!
The non-violent protest In this rising and soaring April heat, you have activist Medha Patkar who is holding out and trying to project her crusade in the most non-violent way. Though reports are pouring in about the worsening condition of Medha Patkar , this determined crusader is not relenting. Fasting even when she has been forcibly hospitalised at AIIMS; trying to get her point across to the top brass of
the government.
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Former Jammu and Kashmir Chief Minister Farooq Abdullah is convinced that there will be a resolution of the Kashmir imbroglio. Former President of the National Conference, he says his only regret so far has been a witness to the turmoil in the valley. In an interview, he speaks of the need for autonomy, speeding up the peace talks and confidence building measures. “Our party is the only one that has a solution to the Kashmir problem”, he asserts.
THIS was not Medha Patkar’s first fast-unto-death. She had almost died during a 22-day hunger strike in 1991. Undeterred, she undertook two more long protest fasts in 1993 and 1994. Twelve years back she would have taken virtual Jal Samadhi, would have drowned in the swirling waters of the Narmada as she refused to leave the Manibeli village which was to be flooded. Her favourite tactic was to chain herself to a piece stone and wait for the waters to rise, daring the authorities to let her drown. She was arrested and her office was ransacked.