SC Ruling on Hindu Succession Act Lends Credence to Uniform Code
Supreme Court order on the Hindu Succession Act strengthens the case for a Uniform Civil Code, writes Nishtha Gautam
The Supreme Court’s latest ruling on the issue of Hindu women’s inheritance spells bad news for a large number of women. The apex court has held that retrospective legislation of the Hindu Succession (Amendment) Act, 2005, will not be permitted. This means that a woman who lost her father before September 9, 2005, will not be an equal inheritor of his property.
In the recent past, the Supreme Court bolstered women’s socio-legal stature in society through some progressive decisions. From granting sole guardianship rights to single mothers to allowing single women to adopt children, the SC has been empowering women one ruling a time. It is therefore disappointing to know that a social legislation like the Succession Act will have no retroactive effect.
It is no secret that gender inequality is deeply entrenched in economics and a vicious circle of ‘have less-get less’ is in operation. In India most crimes against women, from witch hunting to dowry killings to abandonment of widows to trafficking, are economically motivated. In times when the pay-gap is a matter of such grave concern even in countries like the US that it is ruling the presidential campaign discourse, the SC has played on the back-foot. A progressive view on retroactive effect of the amended succession law was certainly in order.
- Supreme Court’s
recent ruling on Hindu Succession Act disenfranchises women belonging
to families where ancestral property was partitioned before the introduction of
the Amendment Bill on December 20, 2004
- There is a need
to word the affirmative action laws more carefully to address inequalities in a
- The ruling states
that “the right conferred on a ‘daughter of a coparcener’ is ‘on and from the
commencement’ of the amendment Act”; is it then the legislature’s fault?
- Such disqualifications are likely to add to the
clamour for Uniform Civil Code
Potential of Retroactive Legislation
Experts may debate the legality and precedence-related issues of the matter, but I am interested in understanding the ramifications from a feminist vantage point. For affirmative action, retroactive legislation has the potential of becoming a powerful tool. While the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, is often invoked to draw attention towards complications in retrospective operations of laws, we need to ask ourselves whether implementation problems should be cited to undermine the intent of the law. Instead, the operations at the administrative level need to be smoothened.
This ruling disenfranchises another set of women after the ones who belong to families where ancestral property was already partitioned before the introduction of the Amendment Bill on December 20, 2004. Do these restrictions not end up creating further inequalities and that too among women?
A literal interpretation of the 2005 Amendment Act has led to these disqualifications. It brings us to the issue of semantics. There is a need to word the affirmative action laws more carefully to address inequalities in a comprehensive manner.
The ruling in question states that “The text of the amendment itself clearly provides that the right conferred on a ‘daughter of a coparcener’ is ‘on and from the commencement’ of the amendment Act. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text”. Do we assume that the legislature actually intended these disqualifications? Or is it a matter of semantic oversight?
Whether a progressive view of the amendment could be taken or not can be debated upon by fine legal minds of the country. However, these disqualifications are likely to add to the clamour for a Uniform Civil Code. A carefully worded one.
(The writer is Associate Fellow (Gender) at Observer Research Foundation)
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