SC Ruling on Hindu Succession Act Lends Credence to Uniform Code
The Supreme Court in its judgment on November 2, 2015,  held that retrospective legislation of the Hindu Succession (Amendment) Act, 2005, will not be permitted. (Photo: iStock),
The Supreme Court in its judgment on November 2, 2015, held that retrospective legislation of the Hindu Succession (Amendment) Act, 2005, will not be permitted. (Photo: iStock),

SC Ruling on Hindu Succession Act Lends Credence to Uniform Code

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.

As per the latest Supreme Court ruling, a woman who lost her father before September 9, 2005, will not be an equal inheritor of his property. (Photo: iStock)
As per the latest Supreme Court ruling, a woman who lost her father before September 9, 2005, will not be an equal inheritor of his property. (Photo: iStock)

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.

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Disenfranchising Women

  • 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 comprehensive manner
  • 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.

At a time  when the pay-gap is a matter of  grave concern even in countries like the US, the Supreme Court has played on the back-foot. (Photo: Reuters)
At a time when the pay-gap is a matter of grave concern even in countries like the US, the Supreme Court has played on the back-foot. (Photo: Reuters)

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?

Addressing Inequalities

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.

Do  restrictions such as the one imposed by the Supreme Court  order not end up creating further inequalities and that too among women? (Photo: iStock)
Do restrictions such as the one imposed by the Supreme Court order not end up creating further inequalities and that too among women? (Photo: iStock)

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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