163

Chapter 6

NATURE OF ADIVASI LAW: JURISPRUDENTIAL,

CONSTITUTIONAL AND HUMAN RIGHTS PERSPECTIVE

6.1 THEORETICAL ASPECTS

The purpose of the present study is not to enter into the entire galaxy of jurisprudential

theories of law. For neither the place nor the scope of subject-matter permits to discuss in

detail the meaning of law. But the question “What is Law?” remains one of the most

insistent problems in the entire range of human thought. Various attempts have been

made by number of advocates of different schools to define law. But all those attempts

result into a grand array of debate without any universally acceptable formulae. Kant

remarks: “the lawyers are still seeking a definition of their concept of law.”1 Jerome

Frank may have been more realistic when he observed that defining law was neither

necessary nor worthwhile, as it resulted in a “futile, time-consuming”, a “silly word

battle”.2 Commenting upon the desirability of defining law, Prof. Julius Stone observes:

“Perhaps it is sufficient to venture the prophecy that it is likely that in the future, as in the

past, no definition is likely to be widely accepted by those concerned with the law.”3

The debate on the academic level could, as usual, continue ad infinitum; but the problem

acquires practical importance when judicial recognition of a right depends on the answer

to the question ‘whether a rule is law or not’. Therefore, in this section, attempt will be

made to explore the meaning of law,4 especially of ‘Adivasi law’.

Much heat has gone in the debate among the jurists and the anthropologists on the

question ‘whether the Adivasi (Primitive) society has law’. There are jurists, like Munore

1 Stone, Julius, “Legal System and Lawyers’ Reasonings”, (1968), Maitland Publications Pty. Lt., Sydney, at p 166. 2 See, Mishra, D.S., “Definition of Law and the Supreme Court”, 10 J.I.L.I. (1968) p 434 at p 434. 3 Stone, Supra note 1 at p 167. 4 The present section does not include ‘law’ in the Constitutional dimension as is enunciated under Article 13.

164

Smith, who maintain that ‘only those rules of conduct are legal whose observance is

guaranteed by the infliction of penalties affecting the person or his property.’5 Austin

defines law “as a command of sovereign.” Therefore, only those customs or usages which

were enforced by some governmental authority can be considered as legal rules. To him,

a customary practice is to be regarded as a rule of positive morality unless and until the

‘legislature or a judge’ (the concepts not available among the Adivasi society) has given

it the force of law. Therefore, according to Austinian doctrine Adivasi society is devoid

of law. Gray puts the courts in the center of the legal system. According to him, “Law is

what the judges declare”. Thus, according this view, unless there are official agencies to

decide disputes by interpreting and applying legal rules to given situations—that is,

unless there are courts—there is no law. Prof. Geoffrey Sawer denies that the Adivasi

society has any law or a legal system. According to him, “Modern societies have

specialized institutions, regularly operating, regarded as possessing wide authority to

make and amend rules of law.”6 These specialized institutions, according to him, are the

Legislature, Courts of Law, Court officers and Police and Legal Profession. All of them

are absent in the Adivasi society. Therefore, he stated, “If these four features or any one

or combination of them are thought necessary to the social complex described in modern

societies as ‘the legal system’, then the expression cannot be used to denote any feature

of primitive society.”7 Thus, the law or legal system in the Adivasi society has been

questioned by many jurists. This is another reason which necessitates exploring ‘whether

or not the Adivasi society has a law or a legal system’.

6.1.1 Evolutionary Focus on Law

It has already been stated that, with the rise of “Theory of Evolution” the horizons of

various fields of knowledge have been widen. Anthropologists started studying the origin

and history of mankind. The theory has been made applicable to the organic development

of society and also to law. Herbert Spencer was strongly influenced by Charles Darwin’s 5 Bodenheimer, Edgar, “Jurisprudence: The Philosophy and the Method of Law”, First Indian Reprint (1996), Harvard University Press, U.S.A., at p 304. 6 Sewer, Geoffrey, “Law in Society”, (1965), Clarendon Law Series, Oxford University Press, London, at p 29. 7 Sewer, ibid, pp 29 – 30.

165

“Origin of Species”. Spencer considered ‘civilization and law as products of biological,

organic evolution, with the struggle for existence, natural selection, and the “survival of

the fittest” as the principle determining factor.’8 The German scholar Bachofen (in his

“Das Mutterecht”) and his contemporary the British Scholar Sir Henry Maine (in his

“Ancient Law”) made a comparative study of legal institutions of various communities.

These studies led them to the conviction that the legal history of peoples shows pattern of

evolution which recur in different social orders and in similar historical circumstance.

On the basis of comparative studies Sir Henry Maine distinguishes between what he calls

“Static” and “Progressive” societies. According to him, the early development, both in

static and progressive societies, is roughly the same and falls into four stages. In the first

stage, law was made by the commands of the rulers believed to be acting under the divine

inspiration. In the second stage, the commands crystallize into customary law. In the third

stage, the knowledge of law and administration of customs goes into the hands of a

minority, usually of religious nature. And the fourth stage is the revolt of the majority

against the oligarchic monopoly. In this stage, laws are promulgated in the form of codes.

The ‘Static’ societies, according to him, do not progress beyond this stage. Whereas, the

most distinctive feature of ‘Progressive’ societies is that they further develop the law

through – Fiction, Equity and Legislation.

Side by side with these doctrines, Maine developed another thesis. He pointed out that,

“The movement of progressive societies has hitherto been a movement from Status to

Contract.”9 Thus, according to him, in early societies, both static and progressive, legal

conditions of the individual used to be determined by his status. His rights, duties,

privileges, etc. were determined by law. But in the progressive societies there is a

disintegration of status, and the determination of legal conditions of the individual by free

negotiation on his part.

8 Bodenheimer, Supra note 5 at p 77. 9 Maine, Sir Henry Sumner, “Ancient Law”, (1897), John Murray, Albemarle Street, London, at p 170.

166

Notwithstanding the criticisms leveled against Maine’s theory, he succeeded in

establishing that though the Adivasi society is ‘static’ but does not devoid of law.

Therefore, in the words of Dias, “one should be charitable about his errors and marvel at

his genius in accomplishing so much.”10

6.1.2 Working of Law in Society

From the beginning of the twentieth century; a large number of empirical studies began to

appear on the customary legal system. Until then, the focus of anthropological theories

had been on a ‘description of rules of a particular society’. But due to scholars like

Malinowski, the focus shifted towards the study of ‘working of law in society’.

Malinowaski’s “Crime and Customs in Savage Society” based on fieldwork in the

Trobriand Islands, became one of the famous examples in this tradition where he viewed

Adivasi law as the ‘rules which curb human inclination’.

Malinowaski states: “In looking for ‘law’ and legal force, we shall try merely to discover

and analyse all the rules conceived and acted upon as binding obligations, to find out the

nature of the binding forces, and to classify the rules according to the manner in which

they are made valid. We shall see that by an inductive examination of facts, carried out

without any preconceived idea or ready-made definitions, we shall be enabled to arrive at

a satisfactory classification of the norms and rules of a primitive community, at a clear

distinction of primitive law from other forms of custom, and at a new, dynamic

conception of the social organization of savages’.”11

Malinowaski disputed the view that in ‘early society’ law and custom were entirely

undifferentiated. He attempted to show that even in early society some rules of custom

stood out from other social rules in that they were felt to represent the definite obligations

10 Dias, R M W, “Jurisprudence”, First Indian Reprint (1994), Aditya Books Private Limited, New Delhi, at p 389. 11 Cited in, Barpujari, Indrani, “Customary Laws Among the Tiwas of Assam”, (2010), a thesis submitted to the University of Gauhati, for the degree of Doctor of Philosophy in Anthropology, in faculty of science, at p 11.

167

of one person and the rightful claims of another.12 “On a close inquiry”, he said, “we

discover a definite system of division of functions and a rigid system of mutual

obligations, into which a sense of duty and the recognition of the need of cooperation

enter side by side with the realization of self-interest, privileges and benefits.”13 He

pointed out that it is not the sheriff who stands ready to enforce such rights and

obligations in primitive society; they are usually self-enforcing because men need the

good will and the services of others. A man requires a boat in order to fish, but he can

obtain it only if he delivers part of the catch to the owner of the boat. The native who

shirks his obligations knows that he will suffer for it in the future.

Malinowaski’s ethnographic observations revolved around three main points: (i)

Trobriand society was generally orderly; (ii) this order was maintained not by ‘codes,

courts and constables’, but rather through ‘a body of binding (reciprocal) obligations’

whose enforcement was undergirded by economic reality…and (iii) individuals

frequently tested their social order through self-interested acts of deviance and resistance,

demonstrating that Trobrianders were not ‘slaves to custom’.14

Thus it is Melinowaski’s thesis that primitive society recognizes the distinctive character

of legal rules, that is, rules invested with the a definite binding obligation. He regarded

law, essentially, as “anything that produce and maintain social order.”

Radcliffe-Brown, however, does not subscribe this view. Explicitly following Roscoe

Pound, he stated that the term law is usually confined to “social control through

systematic application of force of politically organized society”.15 Therefore, the field of

law, according to him, will be regarded as coterminous with that of ‘organized legal

sanctions’. The obligations imposed on individuals in societies where there are no ‘legal’

sanctions will be regarded as matters of custom and conventions but not of law; in this

12 Bodenheimer, Supra note 5 at p 301. 13 Bodenheimer, Supra note 5 at p 301. 14 Cited in, Barpujari, Supra note 11 at p 12. 15 Radcliffe-Brown, A.R., “Structure and Function in Primitive Society: Essays and Addresses”, (1952), Cohen & West Ltd., London, at p 212.

168

sense some simple societies have no law, although all have customs which are supported

by sanctions.16

In his exposition of law, Radcliffe-Brown distinguished between, what he calls, ‘legal

sanctions’ and sanctions which are not ‘legal’ (social sanctions). In any community there

are certain modes of behaviour which are usual and which characterize that particular

community. Such modes of behaviour may be called usages. All social usages have

behind them the authority of the society, but among them some are sanctioned and others

are not. According to Radcliffe-Brown, “A sanction is a reaction on the part of a society

or of a considerable number of its members to a mode of behaviour which is thereby

approved (positive sanctions) or disapproved (negative sanctions).”17 Such sanctions,

according to him, may further be distinguished as ‘diffuse sanctions’ or ‘organised

sanctions’. ‘Diffuse sanctions’ are spontaneous expression of approval (diffuse positive

sanctions) or disapproval (diffuse negative sanctions) by members of the community

acting as individuals. ‘Organized social sanctions’ carried out according to some

traditional and recognized procedure. According to him, such organized social sanctions

become ‘legal sanctions’ ‘when they are imposed by a constituted authority, political,

military or ecclesiastic.’18

Therefore, while treating law as coterminous with that of organized legal sanctions

Radcliffe-Brown maintains that some simple (Adivasi) societies does not have law due to

lack of ‘constituted authority, political, military or ecclesiastic.’ But at the same time he

accepts that, such simple societies have customs which are supported by (social)

sanctions. And such “customary rules” are obligatory (social obligation19) on them to

follow.

On this point, Prof. C.K. Allen seems to have taken more correct view. He states: “To

call these (customary rules) legal rules is something anachronism, for in very many cases 16 Radcliffe-Brown, ibid, at p 212. 17 Radcliffe-Brown,ibid, at p 205. 18 Radcliffe-Brown, ibid, at p 208. 19 Social obligations have been defined by him as, ‘Rule of behaviour which entails a negative sanction of some sort’. Radcliffe-Brown, ibid, at p 205.

169

they are equally rules of religion and morality, which, at this early stage, have not

become distinguished form law; but they are ‘legal’ in the sense which nowadays

attached to that term, inasmuch as they are binding and obligatory rule of conduct (not

merely of faith and conviction), and the breach of them is a breach of positive duty.”20 He

further stated: “Custom, as has been said, grows up by conduct, and it is therefore

mistake to measure its validity solely by the element of express sanction accorded by

courts of law or by any other determinate authority.”21

Law is, thus, based on the obligatory social customs. Such customs become legal when

its implementation is ensured by organized social (not necessarily legal, as stated by

Radcliffe-brown) sanctions. Such organized sanctions are present in every society,

including Adivasi society. Adivasi society, in this sense, is not lawless. Law in Adivasi

society consists of a bundle of customary rules which is properly known as ‘customary

law’.

6.2 NATURE OF ADIVASI LAW

Though the existence of law can be found in the Adivasi societies but, unlike the laws of

modern societies, their laws are not developed. They are, in the words of Maine, “static”.

In modern societies laws are being made, and for this purpose strong legislative bodies

are in existence. The system of court and police is also available for implementation of

justice and law and order. Such laws are certain because they are codified. But the

Adivasi society lacks the institutions like, legislators, courts and police. The system of

enactment of new laws or even modifying old laws is not available in the Adivasi society.

The administration of justice is done with the help of customary laws which are not in

written form and therefore, they are not certain. Therefore, though law is in existence in

the Adivasi society but its nature is very much different from that of the modern society.

The distinctive feature of Adivasi law, in brief, can be stated as follows:

20 Allen, Sir Carleton Kemp, “Law in the Making”, (1964), Oxford University Press, Ely House, London W.I., at p 69. 21 Allen, ibid, at p 70.

170

6.2.1 Dominance of Criminal Law

In today’s modern society there is a scope both, for the criminal law and the civil law.

But there is no such scope for civil law in Adivasi society. In fact civil law does not exist

at all.22 Dominance of criminal law can be found in the Adivasi societies. Sir Henry

Maine stated that, in the Adivasi society the proportion of criminal to civil law is

exceedingly different.23 According to him the life of Adivasis is marked by violence and

therefore, he stated: ‘the reason of dominance of criminal law in Adivasi communities is

their habitual violence.’24 But anthropologist Robert Lowie does not subscribe this view

of Maine. According to him, “The regulation of personal relations by the status of the

individuals, the administration and inheritance of property within the family according to

customary law, and the absence of contracts between individuals, adequately account for

the diminutive part played by civil jurisprudence as compared with criminal law.”25 Thus,

the existence of civil law in Adivasi society is doubtful. And if at all it is in existence, it

is in its nascent stage.

6.2.2 No Distinction between Criminal and Civil Law

Among the Adivasis a clear-cut distinction between the crime and tort cannot be found.

Both can be redressed by paying compensation. The idea is to ‘settle the dispute and

restore amity, rather than to inflict punishment for a wrong done.’26 But the cause of this

comparative barrenness of civil law, according to Maine is the ‘absence of contract’.27 He

further stated: “The penal law of ancient communities is not the law of crimes; it is the

law of wrongs.”28

22 Nadgonde, Gurunath, “Bhartiya Adivasi”, (2003), Continental Prakashan, Pune, at p 279. 23 Maine, Supra note 9 at p 367. 24 Maine, Supra note 9 at p 368. 25 Nadgonde, Supra note 22 at p 279. 26 Deb, R. et al., “Patterns of Criminal Justice Amongst Some Tribes”, 12 J.I.L.I. (1970) p 205 at p 207. 27 Maine, Supra note 9 at p 369. 28 Maine, Supra note 9 at p 370.

171

6.2.3 Intention and Motive Irrelevant

In the laws of modern societies intention and motive plays a pivotal role. Without

intention an act of a person cannot be treated as an offence except in cases of strict

liability offences. But these two important elements are irrelevant in the laws of the

Adivasi society. This is one of the most important difference between the laws of modern

and society and to that of the Adivasi society. In the Adivasi society what is important is

the result and not the intention or motive behind the act.

6.2.4 Principle of Collective Responsibility

Every member of Adivasi society is deeply rooted in their family, association or tribe.

Every aspect of their life is interdependent. The feeling of esprit de corps can strongly be

found among them. In the Adivasi laws kinship-bonds has especial importance.

Therefore, if any member of the group commits any crime, entire group can be held

responsible for the same. The person with whom wrong has been committed or his group

can take revenge against the wrong-doer or any member of his group. “The injured group

is regarded as justified in seeking vengeance and there is frequently an obligation on the

members of the group to avenge the death. The retaliatory action is regulated by custom;

the lex talionis requires that the damage inflicted shall be equivalent to the damage

suffered and the principle of collective solidarity permits the avengers to kill a person

other than the actual murder.”29

6.3 ADMINISTRATION OF JUSTICE

In modern society special machinery like, courts and police, has been established for

implementation of law and justice. Such special machinery, as has already been stated, is

lacking in the Adivasi society. But among some tribes of Adivasis the function of

administration of justice has been looked after by village headmen, chieftains, kings or

council members. In India especially, except of North-East reason, such agencies are rare 29 Radcliffe-Brown, Supra note 15 at p 215.

172

and exceptional. Mostly, the function of administration of justice has been performed by

the Panchayats.

Members of Panchayat, especially in the Nandurbar district, are not fixed. A Panchayat

consist of any person of the good reputation, old and elderly persons of the tribe, police-

patil of the village. But female cannot become a member of the Panchayat. Apart from

administration of justice all important decisions affecting the tribe has been taken by the

Punchayat. The Panchayats decide the matter according to the customary laws of the

tribe.

In deciding the matter ‘oaths’ and ‘ordeals’ can be used as evidence. Under an oath the

accused has to state whether he is guilty of the charge. And it is believed that, the

supernatural power of oath take care of the lier. Under ordeal, the accused is asked to go

through an ordeal. Ordeals may be of various kinds for example, putting the hands in the

boiling water, holding hot rot, etc. If the accused escapes unscathed he is held not guilty.

Various kinds of punishments are prescribed for the guilty person. Fine is most common

and most prevalent form of punishment in almost all tribes of Adivasis. For example,

Among the Dhanka Tadvis, a fine of Rs. 500/- is prescribed for a wrongdoer, if he runs

away with a married women whose husband has deserted her. If any person forcefully

takes any married woman from the community, such person’s house is destroyed and also

a fine of Rs. 1000/- is imposed on him in addition to this he has to pay compensation of

Rs. 2051/-. And a fine of Rs. 251/- is impose in case of rape.30 Another common kind of

punishment is to give feast for the kinship group or the village. Excommunication form

the tribe is another kind of punishment. In this type an excommunicated person can return

to his community by giving feast to the kinship group or to the village. In rare cases,

capital punishment can also be given to the offender. But his family members can ‘buy

his head’ by paying fine and adequate compensation to the wronged. Most of the fines

inflicted are in reality compensations for the damaged one. The purpose of the fine is

restitutive.

30 Minutes of General Meeting of the Dahnka Tadvi tribe, dated 10.03.1998, [unpublished].

173

Panchayat is, thus, more a board of arbitration, equally sympathetic to both the parties

than a body of stern dispensers of justice which the offender fear and try to evade. Every

offence or wrong is considered in terms of concrete damage or injury caused by it and

redress is given in the form of adequate compensation.

One of the most important attributes of justice delivery system of Adivasis is its

promptness. The Adivasi system of justice delivery is more expeditious and prompt than

the administration of justice in regular courts. The speedy disposal of matters can be

ascribed to the absence of any dilatory procedure. A matter is almost decided on the spot

and in the presence of villagers. Another distinctive feature of Adivasi system of justice

delivery is its cheapness. In fact cheapness is inherent in the simple procedure. Matters

are decided in the area where both the parties and the witnesses reside. Therefore, there is

hardly any cost involved in bringing witnesses. Another important factor which ensures

cheapness is absence of lawyers. Simplicity is another important attribute of their justice

delivery system. Matters are conducted by the Punchas in the presence of villagers and in

accordance with their customary laws. Therefore, their justice delivery system is not only

simple but also effective, which is another distinctive feature of their justice delivery

system. The effectiveness is also due to effective participation of the people in the

conduct of cases.

6.4 JURISPRUDENTIAL TEST OF ADIVASI CUSTOMARY PERSONAL LAW

Personal law of Adivasis is based on their customs. A custom, in order to be a valid and

enforceable, it is necessary that it should satisfy all the essentials of a valid custom. It is,

therefore, important to determine whether the customs of the Adivasis, forming part of

their personal law, fulfill the essential conditions of a valid custom. Essentials of a valid

custom can, broadly, be classified into—Formative Essentials and Operative Essentials.31

31 See, Essentials of a Valid Custom, Para 3.4, above, at p 88.

174

6.4.1 Formative Essentials Test

Antiquity, Uniformity/Continuity, Certainty and Conscious acceptance as of right are the

essential formative elements of a valid custom. A custom possessing these elements is

prima facie valid.

The Antiquity test of a custom provides that, a custom, to have the force of law, must be

immemorial. It must have existed for so long a time that, in the language of law, ‘the

memory of man runneth not to the contrary’. Adivasis have been governed by their

customary law since time immemorial. Even during the British regime they were

governed by their customary law. And in the independent India also, they are governed

by their customary laws, especially in the matters relating to personal law. Custom for

them is not simply a source of law but law in itself. The Adivasi perception of customary

law is that, when a number of persons have been doing a thing regularly over a

substantial period of time it is usual to say that they have become habituated to it or

accustomed to it. This give rise to a conviction that the said course of conduct is best

suited for them and the said practice should continue to be observed. They sincerely

believe that the said course of conduct is salutary and they call for strict compliance

thereof by all persons of the tribe and departure from them is met with a typical sanction.

All these establish that, the customary personal law of the Adivasis is not of recent origin.

It has been followed invariably and continuously since time immemorial. The customary

personal law of Adivasis, thus, fulfills the test of Antiquity as well as

Uniformity/Continuity.

The Adivasis have a strong conviction that their customs are legally binding and are the

source of enforceable rights and obligations. For instance, if groom or his parents

rescinds to give the agreed bride-price, and if the marriage is still to be solemnized, the

bride’s parents have a right to cancel the marriage contract already entered into. But if the

marriage is already solemnized, non-payment of bride-price will not affect the validity of

marriage. But such parents have right to recover the same. In case of non-payment the

175

Punchas will order the defaulting party (groom’s parents) to pay it.32 According to the

custom of Adivasis, especially those residing in the ranges of Satpuda Mountain

(doguwala), if the bride-price is due and the person with whom it is due or any member

of his family dies, the dead-body will not be allowed to remove from the home for burial

till the bride-price is paid. Thus, they have consciously accepted and enjoying the

customs ‘as of right’. These rights are clearly defined and the locality and the persons

whom it is alleged to affect is clear. Therefore, the customary personal law of Adivasis

fulfills the Certainty and the Conscious Acceptance test.

6.4.2 Operative Essentials Test

Custom possessing formative essentials is prima facie valid, but it is unenforceable if it is

Unreasonable, Opposed to Morality, Public Policy, Express Enactment of the Legislature

and for Want of Proof. All these are ‘invalidating elements’. Therefore, in order to be

valid, a custom must be reasonable, should not be opposed to morality, public policy,

express enactments of legislature and must be strictly proved. All these are operative

elements.

6.4.2.1 Automatic dissolution of marriage

According to Adivasi customary law “If a married woman elopes with any other man, her

previous marriage ceases. In such as a case formal declaration of divorce is not necessary.

And the previous marriage ceases automatically.”

In order to be valid, a custom must be reasonable. The authority of usage is not absolute,

but conditional on a certain measure of conformity with justice and public utility.

Reasonableness of a custom is an essential requirement of its validity. However, it cannot

32 Though the Dhanka Tadvis have abandoned their custom of bride-price by a resolution in their general meeting, but by making such a resolution a custom which is invariably and continuously practiced from the time immemorial cannot be done away unless and until the people abandon it. Though the resolution of the Dhanka Tadavis is a welcome and progressive step but, unfortunately, cannot be imposed on the persons who want to follow the custom. The only way to stop the custom is either abandonment of it by the concerned people or by legislation, and not by resolution.

176

be said that custom is always founded on reasons. No amount of reason can make a

custom. What is reasonable or unreasonable is a matter of social values. It may differ

from time to time, from place to place. Therefore, according to Allen, to ascertain the

reasonableness of a custom, it must be traced back to the time of its origin.33 Thus, the

unreasonableness of a custom in modern circumstances will not affect its validity if the

court is satisfied of a reasonable origin. He further states: “Now it is said that if a custom

has not a rational base, but has ‘resulted from accident or indulgence, and not from any

right conferred in ancient times upon the party setting up custom’ then there is strong

evidence that the custom is unreasonable and unenforceable.”34

The standard which the courts apply has been defined by a Divisional Court of the King’s

Bench as ‘fair and proper, and such as reasonable, honest and fair-minded men would

adopt’.35 Brett J. states the test more broadly: ‘Whether it is in accordance with

fundamental principles of right and wrong.’36

If the above-stated test of reasonability is applied to the Adivasi custom of automatic

dissolution of marriage, the only conclusion that can be drawn is that the said custom is

unreasonable and therefore void. No society, which believes in matrimony, can give a

“right” to any spouse to elope with any other person with whom he or she is not married.

And Adivasi society is no exception to it. This fact can be proved by their practice of

“taking revenge” under such circumstance. V.K. Sharma in his Aborigines and the Law

states: “Sex plays an important role and in a majority of their offences, woman is the root

cause. Cases of rape are practically unknown among the aborigines. They have free sex

life and almost unlimited opportunity for sexual gratification. They are amorous and

touchy only in their marital matters, and apart from their code of marital fidelity, they

are, ordinarily indifferent to what anybody does with any of their female relatives. They

jump to instant murder if somebody even stares at their wives or makes gesture at

33 Allen, Supra note 20 at p 143. 34 Allen, Supra note 20 pp 143 – 144. 35 Produce Brokers’ Co. v. Olympia Oil and Coke Co., [1916] 2 K. B. 296 at p. 298. 36 Robinson v. Mollett, (1875) L.R.7 H.L. 802 at p. 817.

177

them.”37 Therefore, the above-stated custom of Adivasis does not stem from any

conferred “right”. But, it is a result of sheer “indulgence” which no honest and fair-

minded person would adopt and hence “unreasonable”.

In Budansa v. Fatima Bi,38 it has been held that, a custom which would enable a woman

to marry again during the lifetime of her husband without any defined rules by the

marriage with the first husband is dissolved before the second marriage is contracted was

held to be contrary to public policy and morality. Therefore, the above-stated custom of

Adivasis is not only unreasonable but also contrary to public policy and morality.

6.4.2.2 Murderer entitle to inherit the property of the murdered

According to Adivasi law, a person otherwise qualified for inheritance cannot be

disqualified on any ground. Thus, even the murderer can claim share in the property of

the person murdered. This aspect of the Adivasi law is against the principles of public

policy. On the ground of public policy, the Privy Council in Kenchava v. Girimallappa39,

has held that: “a murderer is disqualified from inheriting any interest in the property of

the person murdered.” It is contrary to public policy to permit a person to take advantage

of his own wrong. Therefore, the custom permitting the murderer to inherit the property

of the person murdered is void being against the public policy.

6.4.2.3 Marriage by capture

Adivasi law recognizes several modes of acquiring spouse. Marriage by capture40 is of

them. In this type of marriage, woman is forcefully abducted or kidnapped for marriage.

If the woman does not agree/approves of such marriage she can go back to her parental

home. In that case, the man has to pay Zagada. Even if she subsequently agrees/approves

such marriage Zagada (in the form of bride-price) has to be paid on behalf of the groom. 37 Sharma, V.K., “Aborigines and the Law”, (1966), Bharti Press, Indore, at p 23. 38 AIR 1914 Mad 192. 39 AIR 1921 Bom 270. 40 See, Means of acquiring mates, Para 2.4.3.2.a, above, at p 49; and Para 5.3.2, Rule (a)(iv), above, at p 145.

178

According to Adivasi law, paying Zagada is a mode of settlement of dispute and

absolving the guilty person from his liability.

Above-stated custom of Marriage by Capture, being in contravention of the provisions

relating to Kidnapping and Abduction,41 is void. Section 366 of the Indian Penal Code,

1860, states: “Whoever kidnaps or abducts any woman with intent that she may be

compelled, or knowing it to be likely that she will be compelled to marry any person

against her will, or in order that she may be forced or seduced to illicit intercourse, or

knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be

punished with imprisonment of either description for a term which may extend to ten

years, and shall also be liable to fine; and whoever, by means of criminal intimidation as

defined in this Code or of abuse of authority or any other method of compulsion, induces

any woman to go from any place with intent that she may be, or knowing that it is likely

that she will be, forced seduced to illicit intercourse with another person shall also be

punishable as aforesaid.”

Kidnapping from lawful guardianship has been defined under section 361 of the IPC,

which states: “Whoever takes or entices any minor under sixteen years of age if a male,

or under eighteen years of age if a female, or any person of unsound mind, out of the

keeping of the lawful guardian of such minor or person of unsound mind, without the

consent of such guardian, is said to kidnap such minor or person from lawful

guardianship.” Thus, in order to attract the offence of kidnapping there must be—1)

Taking (i.e. to cause to go, to escort or to get into possession) or enticing (i.e. to allure);

2) Such taking or enticing must be of minor (i.e. below 16 years of age in case of boy and

below 18 years of age in case of girl) or of a person of unsound mind of whatever age; 3)

Such taking or enticing must be out of the keeping of the lawful guardians of such minor

or person of unsound mind; 4) Such taking or enticing must be without the consent of the

lawful guardian. In this connection it is important to bear in mind that the consent of the

minor is irrelevant. Only consent which is relevant is that of the lawful guardian. Further,

the consent of the lawful guardian if taken subsequently, that is, after taking or enticing,

41 Sections 359 to 374 of Indian Penal Code, 1860.

179

will not exonerate the accused from his liability in this offence. Therefore, the Adivasi

custom of paying Zagada and bride-price after the offence cannot save the accused from

his liability in this offence.

Whereas minors having lawful guardians and unsound persons of any age are protected in

section 361 while, minors having no lawful guardians (orphans) and major persons of any

age are protected under section 362. Section 362 of the IPC defines ‘abduction’. It says:

“Whoever by force compels, or by any deceitful means induces, any person to go from

any place, is said to abduct that person.” Therefore, it is an offence to carry away a grown

up woman or minor orphan girl without her consent.

If such kidnapping or abduction is with intention of marriage it is an offence under

section 366 of the IPC as stated above. Hence, the custom of marriage by capture is

illegal, being against express enactment, and therefore void. And in view of section 12 of

the Prohibition of Child Marriage Act, 2006, such is marriage is null and void, if the girl

is minor.

6.4.2.4 Child-marriage

Practice of child-marriage is in vogue on a large scale among the Adivasis. Generally, the

age of marriage in case of a girl is 13 – 16 years and in case of boy the age of marriage is

15 – 18. This aspect of Adivasi customary law being inconsistent with the Prohibition of

Child Marriage Act, 2006, is void.

The Prohibition of Child Marriage Act, 2006, is the general law relating to child

marriages and applies to all citizens of India, irrespective of religion.42 ‘Child Marriage’

means a marriage in which either of the contracting parties is a child.43 ‘Child’ in this

context means a person who, if male, has not completed 21 years of age and, if a female,

42 Section 1(2) of the PC MA, 2006. 43 Section 2(b) of the PC MA, 2006.

180

has not completed 18 years of age.44 The ‘contracting party’ means either of the parties

whose marriage is about to be solemnized.45

The object of the Act is to prohibit solemnization of a child marriage. Therefore,

according to section 9 of the Act, “Whoever, being a male adult above eighteen years of

age, contracts a child marriage shall be punishable with rigorous imprisonment which

may extend to two years or with fine which may extend to one lakh rupees or with both.”

Similar punishment is provided for those who performs, conducts, directs or abets child

marriage,46 and also to those who promotes or permits solemnization of child marriage.47

6.4.2.5 Bride-price

Bride-price is essential part of the Adivasi marriage.48 It is paid by or on behalf of the

groom to the bride’s parents. And the same become payable on the day when the contract

of betrothal/marriage is entered into. But it can be postponed in rare cases. The amount of

bride-price varies from place to place and community to community. Bride-price comes

within the meaning of “dowry” as defined under section 2 of the Dowry Prohibition Act,

1961. It defines dowry as: “any property or valuable security given or agreed to be given

either directly or indirectly (a) by one party to the marriage to the other party to the

marriage; or (b) by the parents of either party to a marriage or by any other person, to

either party to the marriage or to any other person; at or before or any time after the

marriage in connection with the marriage of the said parties, but does not include dower

or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.”

Though the Islamic custom of mahr is excluded from the meaning of dowry but Adivasi

custom of bride-price (dej) is no so exempted. Therefore, the Adivasi custom of bride-

price comes within the meaning of dowry, giving or taking of which is an offence.

44 Section 2(a) of the PC MA, 2006. 45 Section 2(c) of the PC MA, 2006. 46 Section 10 of the PC MA, 2006. 47 Section 11 of the PC MA, 2006. 48 Practice of bride-price is banned among Tadvi Bhills by making a Tharao. See, Minutes of General Meeting, Supra note 30.

181

Giving or taking of dowry or its abetment is an offence punishable under section 3 of the

Act. Mere demand, either directly or indirectly, of dowry is also an offence under section

4 of the Act. According to section 5, any agreement for the giving or taking dowry is

void.

A custom of paying bride-price to the parents of a girl is held to be void49 since it

contradicts the provisions of the Dowry Prohibition Act, 1961, an Act to prohibit the

giving and taking of dowry.

6.5 CUSTOMARY PERSONAL LAWS OF ADIVASIS VIS-À-VIS

FUNDAMENTAL RIGHTS AND INTERNATIONAL HUMAN RIGHT REGIME

Several features of personal laws have been challenged so far on the grounds that they

violate fundamental rights, but the courts have adopted a policy of non-interference. And

in many decisions the courts have taken the view that that personal laws is not covered

under Article 13 and therefore could not be challenged as violative of fundamental rights.

According to M.P. Jain, “By not interfering in personal laws the courts have adopted

policy approach…”50 The national policy on personal law recognizes separate existence

of personal laws so that they cannot be tested on the touchstone of fundamental rights.

However, the status of ‘customs and usages’ is differently treated and accordingly,

custom, in order to be valid, must fulfill not only all the essential requirements of a valid

custom but also should stand on the test of fundamental rights. Therefore, customary

personal laws of Adivasis, being solely based on the customs and usages, can be tested on

the touchstone of fundamental rights guaranteed in Part III of the Constitution, since

customs are within the meaning of “law” and “law in force” under Article 13.51 And if at

all, any custom (i.e. customary personal law) of Adivasis violates any of the fundamental

rights, the custom to the extent of such inconsistency is void. Further, though customary

personal law of Adivasis have been recognized by the international community through 49 Giridhari Singh v. Neeladhar Singh, (1972) 10 All LJ 159; also see Gopi Tihadi v. Gokhei Panda, AIR 1954 Ori 17. 50 Jain, M.P., “Indian Constitutional Law”, (2005), Wadhwa and Company, Nagpur, at p 847. 51 See, Supra Note 75 , Chapter 4, above, at p 127; See also, Personal law of Adivasis and its subject-matter, Para 4.5.2, above, at p 137.

182

various conventions and declarations but these conventions and declarations also

emphasizes that the “customary personal laws of Adivasis should be subject to the

fundamental rights defined by a national legal system and internationally recognized

human rights.”52 Therefore, in this section attempt is being made to ascertain the

constitutional validity of the customary personal law of Adivasis and also to identify its

conflicting areas that go against the internationally recognized human rights regime. In

this section, out of the vast galaxy of fundamental rights and human rights jurisprudence,

only those fundamental rights and/or human rights have been dealt with which are related

to the customary personal laws of Adivasis, since the scope of the third and the fourth

objective of the present study is limited only – A) To study the customary personal law of

Adivasis in the light of fundamental rights guaranteed under the Constitution of India and

internationally recognized human rights; and B) To identity the conflict areas in the

customary personal laws of Adivasis which goes against the fundamental rights and/or

the internationally recognized human rights.

6.5.1 Fundamental Rights and Human Rights

Human rights are those minimal rights which every individual must have against the

State or other public authority by virtue of his being a ‘member of the human family’,

irrespective of any other consideration.53 Thus, the concept of human rights embodies the

‘minimum rights of an individual versus his own State’. When human rights are

guaranteed by a written constitution, they are called ‘fundamental rights’ because a

written constitution is the fundamental law of a State.54 Though the concept of human

rights is as old as the doctrine of ‘natural rights’ founded on natural law, the expression

‘human rights’ is of recent origin, emerging from intentional Charters and Conventions.

The first documentary use of the expression ‘human rights’ is to be found in the U. N.

Charter of 1945.

52 See, Article 33 of the U.N. Draft Declaration on the Rights of Indigenous Peoples, and Article 8(2) of the ILO Convention No, C169, viz., Indigenous and Tribal Peoples Convention, 1989. 53 Bhasin, Prof. S.R. (Ed.), “Durga Das Basu’s Human Rights in Constitutional Law”, (2008), LexisNexis Butterworths Wadhwa, Nagpur, at p 8. 54 Bhasin, ibid, at p 2.

183

6.5.2 Charter of the United Nations

In the Preamble of the U.N. Charter, the peoples of the United Nations declare

themselves to be “determined to reaffirm faith in fundamental human rights, in the

dignity and worth of the human person, in the equal rights of men and women…” Article

1.3 of the Charter establishes as a goal of the U.N. “promoting and encouraging respect

for human rights and for fundamental freedoms for all without distinction as to race, sex,

language, or religion.”

The U.N. Charter, however, was not a binding instrument, and merely stated the ideal

which was to be later developed by different agencies and organs. The first concrete step

by way of formulating the various human rights was taken by U.N. General Assembly in

1948 by adopting the Universal Declaration of Human Rights.

6.5.3 Universal Declaration of Human Rights

“Inherent dignity and the equal and inalienable rights of all members of the human

family” is recognized by the UDHR as the “foundation of freedom, justice and peace in

the world.”55 The peoples of the United Nations reaffirm their “faith in fundamental

human rights, in the dignity and worth of the human person and in equal rights of men

and women”56 which is declared in the U.N. Charter of 1945. They have also determined

to “promote social progress and better standards of life in larger freedom.”57

Article 1 of the UDHR declared that, “All human beings are born free and equal in

dignity and rights. They are endowed with reason and conscience…” Article 2 of the

Declaration establishes the principle of ‘non-discrimination’. It states “everyone is

entitled to all the rights and freedoms set forth in this Declaration, without distinction of

any kind, such as race, sex, language, religion, political or other opinion, national or

social origin, property, birth or the status.” Article 7 contains both “equality before law” 55 Preamble of the UDHR. 56 Ibid. 57 Ibid.

184

and “equal protection of the laws”. It runs: “All are equal before the law and are entitled

without any discrimination to equal protection of the law.”

Right to life, liberty and security of person is proclaimed in Article 3. Article 16 states

that, “Men and women of full age, without any limitation due to race, nationality or

religion, have the right to marry and to found a family. They are entitled to equal rights as

to marriage, during marriage and at its dissolution.”58 It further states, “Marriage shall be

entered into only with the free and full consent of the intending spouses.”59 Article 16(3)

recognizes that, “the family is the natural and fundamental group unit of society and is

entitled to protection by society and the State.” Article 17 in its Para (1) and (2),

respectively, declares that “everyone has the right to own property” and that “no one shall

be arbitrarily deprived of his property.” According to Article 22, “everyone, as a member

of society, has the right to social security and is entitled to realization … of the economic,

social … rights indispensable for his dignity and the free development of his personality.”

In spite of all these, the UDHR operated merely as a statement of ideals, which was not

of the nature of a legally binding Covenant and had no machinery for its enforcement.

This deficiency was sought to be removed by the U.N. General Assembly by adopting

The International Covenant on Civil and Political Rights (ICCPR) and International

Covenant on Economic, Social and Cultural Rights (ICESCR) in the year 1966 for

observance of human rights. The ICCPR formulated legally enforceable rights while the

ICESCR is addressed to the States to implement them by legislation.

6.5.4 International Covenant on Civil and Political Rights

Article 2 of the ICCPR makes a general statement concerning non-discrimination on the

basis of sex, birth or other status, etc. Article 3 establishes, “the state parties to the

present Covenant undertake to ensure the equal rights of men and women to the

enjoyment of all civil and political rights set forth in the present Covenant.” The

58 Article 16(1) of the UDHR. 59 Article 16(2) of the UDHR.

185

cherished principle of ‘equality before law’ and ‘equal protection of the laws’ has been

reaffirmed by Article 26 of the ICCPR. It states; “All persons are equal before the law

and are entitled without any discrimination to equal protection of the law.” In this respect,

Article 26 further states, “the law shall prohibit any discrimination and guarantee to all

persons equal and effective protection against discrimination on any ground such as …

sex … birth or other status.”

Article 6 declares that, every human being has the right to life. And the right to liberty

and security of person is enshrined under Article 9. Article 10 speaks for the respect for

the inherent dignity of the human person. Article 16 states that, every person shall have

the right to recognition everywhere as a person before the law.

According to Article 17, “No one shall be subject to arbitrary or unlawful interference

with his privacy, family…, nor to unlawful attacks on his honour and reputation.”60 It

further states that, “Everyone has the right to the protection of law against such

interference or attack.”61 Article 23(1) of the ICCPR reaffirms Article 16(3) of the UDHR

and states that, “the family is the natural and fundamental group unit of society and is

entitled to protection by society and the State.” Right to marry and to found a family

which is declared in the Article 16(1) of the UDHR has been recognized by Article 23(2)

of ICCPR. It runs, “The right of men and women of marriageable age to marry and found

family shall be recognized.” Similarly, Article 16(2) of the UDHR has been reaffirmed

by the ICCPR by stating: “No marriage shall be entered into without the free and full

consent of the intending spouses.”62

Article 24(1) of the ICCPR declares that, “Every child shall have, without discrimination

as to … sex … birth, the right to such measures of protection as are required by his status

as a minor, on the part of his family, society and the State.”

60 Article 17(1) of the ICCPR. 61 Article 17(2) of the ICCPR. 62 Article 23(3) of the ICCPR.

186

6.5.5 International Covenant on Economic, Social and Cultural Rights

The State Parties to the ICESCR undertake to “guarantee that the rights enunciated in the

present Covenant will be exercised without any discrimination of any kind as to … sex

… birth or other status”63, and to “ensure the equal rights of men and women to the

enjoyment of all economic, social … rights set forth in the presents Covenant.”64

Article 9 recognizes everyone’s “right to social security.” And in Article 10(1), the State

parties recognizes that, “widest possible protection and assistance should be accorded to

the family, which is the natural and fundamental group unit of society, particularly for its

establishment and while it is responsible for the care and education of dependent

children.” The Article also recognizes that, “marriage must be entered into with the free

consent of the intending spouses.”

Under Article 11(1), the State Parties recognize the “right of everyone to an adequate

standard of living for himself and his family, including adequate food, clothing and

housing, and to the continuous improvement of living conditions.”

The “right to mental and physical health” of everyone is recognized in Article 12(1).

Article 12(2) provides for the “steps to be taken by the State Parties to the present

Covenant to achieve the full realization of this right” and such steps include, “the

provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy

development of the child.”65

The third generation of human rights66 has adopted various other human right

instruments. Amongst these the Convention on the Elimination of all Forms of

63 Article 2 of the ICESCR. 64 Article 3 of the ICESCR. 65 Article 12(2)(a) of the ICESCR. 66 The first generation of human rights would be the civil and political rights born out of the 18th century literal revolutions. Second generation rights would include economic, social and cultural rights resulting from communist and sociological movements, which appeared during the second half of the 19th century. Lastly, the third generation of rights are those that arose during the 1960s as an attempt to bring soladirity

187

Discrimination Against Women (CEDAW), 1979, the U.N. Convention on the Rights of

Child, 1989, are important for the purpose of the present discussion.

6.5.6 Convention on the Elimination of all forms of Discrimination Against

Women

In the fight to eliminate discrimination against women, the most important texts are the

Declaration of the U.N. General Assembly on the Elimination of Discrimination Against

Women and the Convention on the Elimination of All Forms of Discrimination Against

Women (CEDAW). CEDAW represents the most systematic attempt by the U.N. to fight

decidedly for the rights of women. It was adopted on 18th December 1979 by the U.N.

General Assembly. The spirit of the Convention is rooted in the goals of the U.N.: “to

reaffirm faith in fundamental human rights, in the dignity and worth of the human person,

and in the equal rights of men and women.”67 The rationale for the Convention is clearly

stated in its Preamble, which indicates “despite these various instruments68 extensive

discrimination against women continues to exist”, and emphasizes that such

discrimination “violates the principles of equality of rights and respect of human

dignity”. CEDAW is composed of a Preamble and thirty Articles.

According to Article 1 of the CEDAW “discrimination against women” means “any

distinction, exclusion or restriction made on the basis of sex which has the effect or

purpose of impairing or nullifying the recognition, enjoyment or exercise by women,

irrespective of their marital status, on a basis of equality of men and women, of human

rights and fundamental freedoms in the political, social, cultural, civil or any other field.”

Article 16 deals with the issue of marriage and family relations. It asserts the equal rights

and obligations of women and men with regard to choice of spouse, parenthood, personal

to the international scene. See, Singh, Ajay Kumar, “Protection of Women’s Rights Under the International Law”, Indian Bar Review, Vol. XXXVI (1 to 4) 2009 p 91, note 2, pp 91 – 92. 67 Preamble of the CEDAW, 1979. 68 U.N. Charter, 1945; UDHR, 1948; ICCPR, 1966; and ICESCR, 1966.

188

rights and command over property. Article 16, thus, promotes equality in all matters

related to marriage and family relations.

One of the most radical provisions in the CEDAW is Article 5. It urges the State Parties

“to modify the social and cultural patterns of conduct of men and women.”

6.5.7 U.N. Convention on the Rights of Child

The Declaration of the Rights of the Child, proclaimed by the General Assembly of the

U.N. in November 1959, was followed, after a long lapse of time, by the U.N.

Convention on the Rights of Child (CRC) in November 1989 which entered into force in

September 1990 and was ratified by India in December 1992.

The two great international instruments are central to the child-right jurisprudence and

represent the global conscience of child justice. The anatomy of the CRC embraces many

dimensions of care and protection, adoption, education and development. The

Convention is divided in three Parts and fifty-four Articles with number of rights of the

child. Amongst those rights, following rights are relevant for the purpose of the present

study—

Right to Equality and non-discrimination69, right to ensure the ‘best interest of the child’

in all actions concerning children70 especially in adoption71, right to preserve family

relations72 and right not to be separated from parents except though lawful procedures73,

right to express and to be taken into consideration of views of the child who is capable to

forming his or her own views74, and right against arbitrary or unlawful interference of

privacy, family as well as unlawful attacks on honour and reputation.75

69 Article 2 of the CRC. 70 Article 3 of the CRC. 71 Article 21 of the CRC. 72 Article 8 of the CRC. 73 Article 9 of the CRC. 74 Article 12 of the CRC. 75 Article 16 of the CRC.

189

6.5.8 UNDRIP and ILO Convention No. C169

The Draft United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

and the ILO Convention No. C169, viz., Indigenous and Tribal Peoples Convention,

1989, are meant for addressing the problems of Adivasis. Though cultural rights and

customary laws of Adivasis are recognized by both these human rights documents but

they have also made it clear that such cultural rights and customary laws are subject to

fundamental rights defined by a national legal system and internationally recognized

human rights.76 Therefore, Article 2 of the Draft UNDRIP states: “Indigenous individuals

and peoples are free and equal to all other individuals and peoples in dignity and rights,

and have the right to be free from any kind of adverse discrimination, in particular that

based on their indigenous origin or identity.” Article 43 categorically states: “All the

rights and freedoms recognized herein are equally guaranteed to male and female

indigenous individuals.”

Article 2(2)(a) of the ILO Convention No. C169 imposes on the national Governments a

responsibility for “ensuring that members of these (Adivasi/indigenous) peoples benefit

on an equal footing from the rights and opportunities which national laws and regulations

grant to other members of the population.” Article 3(1) states that, “Indigenous and tribal

peoples (Adivasis) shall enjoy the full measure of human rights and fundamental

freedoms without hindrance or discrimination.” This Article further states in explicit

terms that, “The provisions of the Convention shall be applied without discrimination to

male and female members of these peoples.” The Convention further provides that, “The

application of the provisions of this Convention shall not adversely affect rights and

benefits of the peoples concerned pursuant to other Conventions and Recommendations,

international instruments, treaties, or national laws, awards, custom or agreements.”77

76 See, Article 33 of the Draft UNDRIP, and Article 8(2) of the ILO Convention No. C169. 77 Article 35 of the ILO Convention No. C168, viz., Indigenous and Tribal Peoples Convention, 1989.

190

6.6 THE CONSTITUTIONAL PERSPECTIVE IN INDIA

Many of the Conventions / Declaration discussed above have already been ratified by

India. Therefore, India must strive for the promotion, protection and observance of the

rights recognized in such Covenant / Declarations, since after such ratification it becomes

the duty of Government of India to fulfill the promise made before the world community.

The Government of India reiterating its commitment to the cause of children has adopted

the National Charter for Children, 2003,78 and also repealed and re-enacted the Child

Marriage Restraint Act, 1929, by the Prohibition of Child Marriage Act, 2006. And by

enacting the Protection of Human Rights Act, 1993, India has marched one step forward

in the fulfillment of its promise to protect and respect human rights of the people. The

Act defines “Human Rights” as the “rights relating to life, liberty, equality and dignity of

the individual guaranteed by the Constitution or embodied in the International Covenants

and enforceable by courts in India.”79

So far as the rights guaranteed by the International Covenants are the concerned, the

same have already been discussed above. As regards the rights guaranteed by the

Constitution of India, attempt is being made to discuss the same in the following

paragraphs.

The Preamble of the Constitution which was adopted in November, 1949, already

secured, amongst other ideals, the socio-economic justice, equality of status and

opportunity, and dignity of the individual. The Constitution, in its substantive provisions,

divided the human rights into two parts, viz., justiciable and non-justiciable human rights.

justiciable human rights are included in Part III as Fundamental Rights, and non-

justiciable human rights are included in Part IV as Directive Principles of the State

Policy. Articles 14, 15 and 21 forms parts of the Fundamental Rights whereas, Articles

38, 39 and 46 forms parts of the Directive Principles of the State Policy. The Articles

reads—

78 Resolution F. No. 6-15/98-C. W., dated 09-02-2004. 79 Section 2(1)(d) of the Protection of Human Rights Act, 1993.

191

Article 14: Equality before law—

“The state shall not deny any person equality before the law or the equal protection of

laws within the territory of India.”

Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place

of birth—

“(1) The State shall not discriminate against any citizen on grounds only of religion,

race, caste, sex, place of birth or any of them.

(2) … … … …”

Articles 21: Protection of life and personal liberty—

“No person shall be deprived of his life or personal liberty except according to

procedure established by law.”

Article 38: State to secure a social order for the promotion of welfare of the people—

“(1) The State shall strive to promote the welfare of the people by securing and

protecting as effectively as it may a social order in which justice, social, economic and

political, shall inform all the institutions of the national life.

(2) The State shall, in particular, strive to minimize the inequalities in income, and

endeavour to eliminate inequalities in status, facilities and opportunities, not only

amongst individuals but also amongst groups of people residing in different areas or

engaged in different vocations.”

Article 39: Certain principles of policy to be followed by the States—

“The State shall, in particular, direct its policy towards securing—

(a) that the citizens, men and women equally, have the right to an adequate means of

livelihood;

… … … … …

192

(f) that children are given opportunities and facilities to develop in a healthy manner

and in conditions of freedom and dignity and that childhood and youth are protected

against exploitation and against moral and material abandonment.”

Article 46: Promotion of educational and economic interest of Scheduled Castes,

Scheduled Tribes and other weaker sections.—

“The State shall promote with special care the educational and economic interests of

the weaker sections of the people, and, in particular, of the Scheduled Castes and the

Scheduled Tribes, and shall protect them from social injustice and all forms of

exploitations.”

Article 51A: Fundamental Duties—

“It shall be the duty of every citizen of India—

… … … … …

(e) to promote harmony and the spirit of common brotherhood amongst all the people

of India transcending religious, linguistic and regional or sectional diversities; to

renounce practices derogatory to the dignity of women;

… … … … …

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform.”

6.6.1 The Judicial Flair

The Supreme Court of India taking inspiration from various International Charters and

Covenants interpreted the fundamental rights and the directive principles in such a way as

to encompass the important provisions of the international human right instruments in the

list of fundamental rights and made them justiciable even though some of them are non-

justiciable in our Constitutional scheme and some are not specifically enumerated in the

list of fundamental rights. According to Justice M.Y. Eqbal, “Human rights are those

natural rights which are available to a human being by his birth. Therefore, in fact, there

is no need of Constitutional mandate or statutory sanction for the enforcement of these

193

rights.”80 Bhagwati, J., in Minerva Mills81, stated that: “In coming to the conclusion that

not only the Fundamental Rights in Part III but also the Directive Principles are based on

human rights, so that the Directives, even though non-justiciable, are not to be regarded

as inferior to the Fundamental Rights.” K. Ramaswami, J., citing definition of Human

Right from the Protection of Human Rights Act, 1993,82 stated: “The principles embodied

in CEDAW and the concomitant Right to Development becomes integral parts of the

Indian Constitution and the Human Rights Act and becomes enforceable.”83 He further

stated: “Section 12 of Protection of Human Rights Act charges the Commission with duty

for proper implementation as well as prevention of violation of the human rights and

fundamental freedoms.”84 Thus, by applying the doctrine of “harmonious construction”

the Supreme Court and High Courts by their judicial flair expanded the horizon of the

fundamental rights. Such expanded horizon of fundamental rights includes—Right to live

with dignity85, right to livelihood86, shelter87, health88, education89, equality of status90,

marry and to choose a spouse91, adopt a child92, privacy93, sexual autonomy94, socio-

economic justice95 and empowerment96, and right not to be kidnapped97

80 Eqbal, Justice M.Y., “Concept of Human Rights”, NYAYA DEEP, The Official Journal of National Legal Service Authority (NALSA), Vol. VIII, Issue 2, April 2007, p 35, at p 35. 81 Minerva Mills v. Union of India, AIR 1980 SC 1789. 82 Section 2(1)(d): “Human right means the rights relating to life, liberty, equality and dignity of individual guaranteed by the Constitution or embodied in the International Covenants and enforced by courts in India.” 83 Madhu Kishwar v. State of Bihar, AIR 1996 SC 1864, at p 1870. 84 Madhu Kishwar, ibid. 85 Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and other, AIR 1981 SC 746; Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 1051; Danial Litifi v. Union of India, AIR 2001 SC 3958. 86 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180. 87 Francis Coralie, Supra note 85; Chameli Singh, Supra note 85. 88 Vincent v. Union of India, AIR 1987 SC 990. 89 Mohini Jain v. State of Karnataka, AIR 1992 SC 1858; Unni Krishna v. State of Andhra Pradesh, AIR 1993 SC 2178 90 C. Masilamani Mudliar v. Idol of Swaminathswami, (1996) 8 SCC 525. 91 Lata Singh v. State of U.P. and Anr., AIR 2006 SC 2522. 92 Philips Alfred Malvin v. Y.J. Gonsalvis and Others, AIR 1999 Ker 187. 93 Govind v. State of M.P., AIR 1975 SC 1378. 94 Suchita Srivastava & Anr. v. Chandigarh Administration, AIR 2010 SC 235; B.K. Parthasarathi v. State of Andhra Pradesh, AIR 2000 AP 156. 95 Chameli Singh, Supra note 85. 96 Samatha v. State of Andhra Pradesh, AIR 1997 SC 3297. 97 Tarun Bora alias Alok Hazarika v. State of Assam, AIR 2002 SC 2926.

194

On the background of the vast scenario of internationally recognized human rights,

fundamental rights enshrined under the Constitution of India and the extended horizons

of fundamental rights the Adivasi customary personal law is to be tested so that the areas

of conflict between the Adivasi customary personal law and the fundamental rights and

human rights are to be ascertained.

6.7 AREAS OF CONFLICT

6.7.1 Polygamy

Adivasi law though allows polygyny but it prohibits polyandry. Adivasi man, thus, can

marry as many wives as he can but Adivasi woman can wed one husband only.

The Constitution of India is wedded to the concept of equality which is the essence of

democracy. According to Article 14, every person is entitled to equality before law and

equal protection of laws. Article 15 is an instance and particular application of the right

of equality which is generally stated in Article 14. The Supreme Court in C. Masilamani

Mudaliar98 has held that: “Women have right to equality of status which also forms part

of basic structure of the Constitution.” Therefore, Adivasi law allowing polygyny while

prohibiting polyandry is hit by equality clause of Article 14 and it also infringes Article

15(1) since it discriminates on the ground of sex.

Bringing another wife in the matrimony is a serious interference in the conjugal privacy.

Polygyny affects woman’s personal liberty in conjugal affairs. “Personal liberty”, as has

been held by the Supreme Court, “includes freedoms of family life, motherhood,

procreation, child rearing, matrimonial home and the like elements…”99 Therefore, the

Adivasi custom allowing polygyny is violative of right to privacy which is a part of the

right to life and personal liberty enshrined in Article 21 of the Constitution.100

98 C. Masilamani Mudliar, Supra note 90. 99 Govind, Supra note 93. 100 Govind, Supra note 93.

195

All form of discriminations on the ground of gender is violative of fundamental freedoms

and human rights enshrined in the Preamble of Constitution of India and also of the U.N.

Charter and the UDHR as well as CEDAW. Articles 1, 7 and 16(1) of the UDHR; Article

26 of the ICCPR; Article of the 3 ICESCR; Article 2 of the CRC; Article 2 and 43 of the

Draft UNDRIP; Article 3(1) of the ILO Convention No C169 speak about equality before

law and equal protection of laws as a basic human rights. And the principle non-

discrimination is enshrined under Articles 2 and 7 of the UDHR, Article 2 and 26 of the

ICCPR, Article 2 of the ICESCR. The above-stated custom is, thus, inconsistent with all

these Articles since it disregards the right to equality and non-discrimination. The above-

stated custom is also violative of Article 17 of the ICCPR since it violates woman’s right

not to be subjected to arbitrary and unlawful interference in her family.

6.7.2 Marriage by Capture and Intrusion Marriage

Adivasi law recognizes several modes of acquiring spouse. Marriage by capture and

intrusion marriage are two among them.

Since, legality of ‘marriage by capture’ has already been tested above therefore; here the

custom is proposed to be tested on the parameters of fundamental rights and the

internationally recognized human rights.

“Marriage” as defined by Lord Penzance, “is a voluntary union between man and

woman.”101 Various International Declarations and Covenants also recognize that

“marriage shall be entered into only with the free and full consent of the intending

spouses.”102 All this highlights the aspect of “free association with choice and consent” in

marriage. Marriage by capture disregards, to put it in the words of P. Chaudhari, J., “the

choice of the individual to allow or not to allow one’s body to be used as a vehicle for

101 Hyde v. Hyde (1866) LR IP & D 130 (Divorce Court); Cited in, T. Sareetha v. T. Venkata Subbaiah, AIR 1983 AP 356, Para 18. 102 Article 16 of the UDHR; Article 23(3) of the ICCPR; Article 10(1) of the ICESCR; and 16(1)(b) of the CEDAW.

196

another human being’s creation.”103 It cannot be denied that among the few points that

distinguish human existence from that of animals is ‘sexual autonomy an individual

enjoys to choose his or her partner for marriage and for sex.’ There is, thus, no doubt that,

Adivasi law allowing marriage by capture offends the inviolability of woman’s body and

mind and offends the integrity of her person and invades her privacy. Nothing more

undignified than this can happen in a woman’s life. This custom, therefore, violates her

right to live with dignity which is a part of her right to life enshrined under Article 21 of

the Constitution.

While explaining true scope and ambit of the right to life guaranteed under Article 21 of

the Constitution, the Supreme Court in Francis Coralie Mullin104 stated: “right to life

enshrined in Article 21 cannot be restricted to mere animal existence. It means something

more than just physical survival.” The Court held that: “Right to life includes right to live

with human dignity and all that goes with it…”105 It has also been held that, “Every limb

or faculty through which life is enjoyed is thus protected by Article 21 and a fortiori, this

includes the faculties of thinking and ‘feeling’.”106 This horrifying and terrifying custom

of kidnapping certainly creates a feeling of fear; feeling of shame and disgust in her

mind. Therefore, the Supreme Court in Tarun Bora107 has held that: “Offence of

kidnapping in ‘any form’ impinges upon human rights and right to life enshrined in

Article 21 of the Constitution. Such acts not only strike a terror in the mind of the people

but have deleterious effects on the civilized society and have to be condemned…”

The Adivasi law allowing the practice of marriage by capture is “derogatory to the

dignity of women”, therefore, inconsistent with the fundamental duty enunciated under

Article 51A(e) of the Constitution of India.

103 T. Sareetha, Supra note 101 Para 17. 104 Francis Coralie, Supra note 85 Para 6, at p 752. 105 Francis Coralie, Supra note 85 Para 7 at p 753. 106 Francis Coralie, Supra note 85 Para 6, at p 753. 107 Tarun Bora, Supra note 97 Para 29, at p 2931.

197

The U.N. Charter reaffirming its faith in “dignity and worth of the human person”108

established as a goal of “promoting and encouraging respect for fundamental freedoms

for all.”109 “Inherent dignity” of all members of the human family is also recognized by

the UDHR.110 Article 10 of the ICCPR speaks for the “inherent dignity of the human

person.” Articles 12 of the UDHR and 17 of the ICCPR specifically states: “No one shall

be subject to arbitrary or unlawful interference with his privacy…, nor to unlawful

attacks on his honour and reputation.” Articles 16(2) of the UDHR, 13(3) of the ICCPR,

10(1) of the ICESCR and 16(1)(b) of the CEDAW declared that: “Marriage shall be

entered into only with the free and full consent of the intending spouses.” Therefore,

Adivasi law allowing marriage by capture as well as intrusion marriage is inconsistent

with all these Articles.

6.7.3 Child-Marriage

Social acceptability of child marriage leads to a total negation of the law, which lays

down 18 and 21 years as the minimum age of marriage respectively for the girls and

boys. Practice of child marriage is not only negation of laws and various rights of the

child but also is a root cause of various social maladies. Various studies have shown that,

child marriage deprive children of their right to childhood. It deprives girls, in particular,

of their right to education. The girls leave their parental home at a young age and have no

skills to cope with exploitations in the marital home. This increases their vulnerability to

exploitation and violence. Lack of awareness result in ‘closely spaced pregnancies’.

Younger bride means a higher fertility. This directly affects the size of the family. This

has fiscal implications for the family per se and affects a child’s access to quality

nutrition and education and accounts for the high infant and child mortality rate. Child

marriage is one of the root causes of maternal mortality (i.e. delivery death).111

108 Preamble of the U.N. Charter of 1945. 109 Article 1.3. 110 Preamble of the UDHR, 1948. 111 See, “Baseline Report on Rights of Women in Relation to Marriage in India”, prepared by Association for Advocacy and Legal Initiatives (AALI) and coordinated by International Women’s Right Action Watch (IWRAW) Asia Pacific, Kuala Lumpur, Malaysia, (Advanced Unedited Version), pp 20 – 21.

198

Taking into consideration of these social maladies, the government of India raised the

minimum age of marriage from 15 to 18 for girls and from 18 to 21 for boys by the Child

Marriage Restraint (Amendment) Act, 1978.112 The objective behind raising 18 and 21

years as the minimum age of marriage was: “To prevent child marriages, early marriages

of girls, and consequently early pregnancies and thereby curtail fertility at young ages,

birth of premature babies and infant mortality rate.”113 It is evident from the object stated

above that the government not only has realized the problems of child marriage but is

determined to cure it. The Government has adopted The National Charter for Children,

2003, for the cause of children.

The Government of India has reiterated its commitment to the cause of the children in

order to see that no child remains hungry, illiterate or sick. The Charter underlies the

Government’s intention “To secure for every child its inherent right to be a child and

enjoy a healthy and happy childhood, to address the ‘root causes’ that negate the healthy

growth and development of children, and to awaken the conscience of the community in

the wider societal context to protect children from all forms of abuse, while strengthening

the Family, Society and the Nation.”114 Child marriage has been identified as a ‘root

cause’ that negates the healthy growth and development of children. Therefore, under

Article 11(a) of the Charter child marriage is treated as a crime. Under Article 11(c) of

the Charter the State undertakes that it shall take serious measures to ensure that the

practice of child marriage is speedily abolished.

Taking into consideration of what has been stated above; the custom permitting child

marriage is inconsistent with the national goal of securing “healthy and happy childhood”

therefore, against the very spirit of the National Charter for Children, 2003. It is also

inconsistent with her right to life and personal liberty enshrined under Article 21 of the

Constitution, since it infringes her right to live dignity;115 health;116 education;117 and all

112 The Child Marriage Restraint Act, 1929, is now repealed and re-enacted by the Prohibition of Child Marriage Act, 2006. 113 “Government of India Beijing Report”; cited in, Baseline Report, Supra note 111 at p 23. 114 Preamble to the National Charter for Children, 2003. 115 Francis Coralie, Supra note 85; Chameli Singh, Supra note 85. 116 Vincent, Supra note 88.

199

those right which goes with right to life and personal liberty, such as right to choose

spouse118 and right to reproductive autonomy.119 The Supreme Court in Suchita

Srivastava120 has held that, “Woman’s right to make reproductive choice is also a

dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of

India… The crucial consideration is that a woman’s right to privacy, dignity and bodily

integrity…”

As regards internationally recognized human right regime is concerned, the practice of

child marriage is inconsistent with the spirit of the CRC. And in particular it violates,

especially in case of girl child, her right against arbitrary or unlawful interference of her

privacy.121 It is also inconsistent with child’s freedom of expression,122 right to choose

spouse,123 health,124 education,125 the right to ensure best interest in all actions concerning

children.126 As has already been stated that lack of awareness results in close spaced

pregnancies, the practice of child-marriage violets Article 16(1)(e) of the CEDAW which

declares: “The same rights to decide freely and responsibly on the matter of number and

spacing of their children…”

6.7.4 Simple Mode of Divorce

Adivasi law gives unfettered of power of divorce to both the spouses. The simple method

of taking divorce and absence of specific and fixed grounds for it adequately account for

their loose matrimonial ties which ultimately result in disintegration of the family

institution. Unbridle power of divorce destabilizes family institution. The Government of

India by adopting the National Charter for Children, 2003, makes commitment for 117 Mohini Jain, Supra note 89; Unni Krishna, Supra note 89. 118 Lata Singh, Supra note 91. 119 B.K. Parthasarathi, Supra note 94. 120 Suchita Srivastava, Supra note 94 Para 11, at p 242. 121 Article 16 of the CRC; Article 17 of the ICCPR; Article 12 of the UDHR. The right to reproductive autonomy is an aspect of right to privacy. See, Suchita Srivastava, Supra note 94. 122 Article 12 of the CRC. 123 Article 16(2) of the UDHR; Article 23(3) of the ICCPR; Article 10(1) of the ICESCR; and 16(1)(b) of the CEDAW. 124 Article 24 of the CRC; Article 12(1) and 12(2) of the ICESCR. 125 Article 28 of the CRC. 126 Article 3 of the CRC.

200

“preserving and strengthening Family, Society and the Nation.”127 The customary law of

divorce of the Adivasis is fundamentally inconsistent with this commitment.

Divorce affects not only two individuals but has great social bearing. Therefore, the

internally recognized human rights regime have declared that: “Family is a natural and

fundamental group unit of society and is entitled to protection by society and the

state.”128 For children, family is the first school of human experience. It is also a refuge, a

protective shelter and a source of happiness. Deleterious effects of destabilized and

divorced families can be found on the children, in particular. Article 18 of the National

Charter for Children, 2003, therefore, “recognizes the common responsibilities of both

parents in rearing their children.” Child’s right to family is enshrined in Article 17(a) of

the Charter. Children’s right to preserve family relations129 and the right not be separated

from parents except though lawful procedure130 is recognized by the CRC. Therefore, the

Adivasi law giving unbridle power of divorce is inconsistent with national and

international goal of strengthening family enshrined under the Preamble and section 17

and 18 of the National Charter for Children, 2003. It is also inconsistent with Article

16(3) of the UDHR; Article 23(1) of the ICCPR; Article 10(1) of the ICESCR; and

Articles 8 and 9 of the CRC.

6.7.5 Maintenance

According to Adivasi law, though it is the moral obligation of each spouse to maintain

the other spouse during covertures but this obligation ceases on their separation whether

by way of divorce or otherwise. Adivasi law, thus, denies maintenance to divorced or

separated wife. This aspect of the Adivasi law is inconsistent with her fundamental rights

and various other rights enshrined under the internationally recognized human rights

regime.

127 Preamble to the National Charter for Children, 2003. 128 Article 16(3) of the UDHR; Article 23(1) of the ICCPR; Article10(1) of the ICESCR. 129 Article 8 of the CRC. 130 Article 9 of the CRC.

201

Sir James-Fitz James Stephen who piloted the Code of Criminal Procedure, 1872, as a

Legal Member of the Viceroy’s Council, described the provisions of maintenance

contained in that Code, as “a mode of preventing vagrancy or at least preventing of its

consequence.”131 Judicial approach about right to maintenance is influenced by its

consideration of dignified life. It has been held in Naurang Singh v. Sapala Devi132 that,

“The real object of a proceeding for maintenance is to prevent vagrancy … The real

object is to provide food, clothing and shelter …” Food, clothing and shelter are the basic

human requirements to keep the body and soul together; and if these requirements are not

fulfilled, a woman may constrain to, in the words of V.R. Krishna Iyer, J., “sell her body

and give up her soul.”133 This situation certainly is the antithesis of dignified life.

Therefore, the Supreme Court in Samatha v. State of A.P.134 has held that: “Right to life

enshrined in Article 21 means something more than mere survival of animal existence.

The right to live with human dignity with minimum sustenance and shelter and all those

rights and aspects of life which would go to make a man’s life complete and worth living,

would form part of the right to life.” Citing Olga Tellis135 and Maneka Gandhi136, the

Supreme Court, in Danial Latifi v. Union India,137 reiterated: “the concept of “right to life

and personal liberty” guaranteed under Article 21 of the Constitution would include the

‘right to live with dignity’.”

Protection against moral and material abandonment manifest in Article 39 is a part of

socio-economic justice, specified in Article 38, fulfillment of which, according to Article

37, is fundamental to the governance of the country. Therefore, a custom which allows

women to be cast away by divorce without providing anything for their sustenance is

inconsistent with the Constitutional goal.

Therefore, Adivasi custom denying the right to maintenance to the woman in distress and

cast away by divorce infringes Article 21 and is contradictory to Articles 38 and 39 as 131 Cited in, Mohd. Ahmed Khan v. Shah Bano Begum and others, AIR 1985 SC 945, Para 8, at p 949. 132 Naurag Singh Chunni Singh v. Smt. Sapala Devi, AIR 1968 All 412, Para 7, at p 413. 133 Bai Tahira v. Ali Hussain Fissalli Chothia and another, AIR 1979 SC 362, Para 11, at p 365. 134 AIR 1997 SC 3297, Para 79 at p 3330. 135 Olga Tellis, Supra note 86. 136 Maneka Gandhi v. Union of India, (1978) (1) SCC 248. 137 Danial Latifi, Supra note 85 Para 33, at p 3971.

202

well as against the basic human rights recognized by international human right regime.

Thus, the aforesaid aspect of the Adivasi law is inconsistent with Article 10 ICCPR,

which speaks about the “right to inherent dignity of the human person”, and Article 11(1)

of the ICESCR, dealing with “right to adequate standard of living … including adequate

food, clothing and housing”. It is also inconsistent with Article 22 of the UDHR which

speaks about “economic and social rights for dignity and free development of

personality”. This custom also disregards her “right to social security” enshrined under

Article 9 of the ICESCR.

6.7.6 Guardianship

According to Adivasi customary law, natural-father is the first guardian of his minor son

and unmarried daughter. After the father the mother is the guardian and after her the

guardianship goes to kaka-baba (i.e., other family members from paternal side).

According to this custom Adivasi father is invested with the absolute right of

guardianship and custody his minor children “without reference to the welfare of

minors”. This custom is, therefore, inconsistent with Art 21 of the Constitution of India.

It has been held in L. Chandra v. Venkatalakshmi138 that, the right of the father to the

custody of the child without reference to the welfare of the child is not sustainable in law.

The Court observed that, child is a person within the meaning in Article 21 of the

Constitution of India. The word “life” should be understood in this context as expansively

as it has been understood in other context as comprehending more than mere animal

existence. The theory that the father has an unlimited and unrestricted right to the custody

of the minor child even to the limit of disregarding the welfare of the child would be

theoretically inconsistent with this constitutional provision. Further this custom is also

inconsistent with Article 3 and 12 of the CRC, since it disregard to “best interest of the

child” and does not take into consideration the “right of the child to express his views”

with whose custody he/she want to stay. Therefore, this aspect of the Adivasi law is

inconsistent with the Government of India’s commitment to the cause of the children

138 AIR 1981 AP 1.

203

securing: “for every child its inherent right to be child and enjoy a healthy and happy

childhood.”139

On the issue on “right of guardianship”, Adivasi law is inconsistent with the fundamental

rights guaranteed by the Constitution of India as well as with the internationally

recognized human rights. While the “mother’s right of guardianship ceases on her re-

marriage but father’s right of guardianship does not cease on his re-marriage.” At the

outset, this custom is violative of Article 14 of the Constitution since it denied the

“equality before the law” and “equal protection of laws” and makes discrimination on the

ground of sex which is prohibited by Article 15 of the Constitution. And by practicing

this customs Adivasis, being equal citizens of India, are failing in their duty to “renounce

practices derogatory to the dignity of women.140” Since right to life includes right to live

with dignity, this custom is also violative of Article 21 of the Constitution.

So far as internationally recognized human rights are concerned, this customs is

contradictory to the very ideal, goal and purpose of the U.N. Charter and the UDHR.

Both in their Preamble speak for the “dignity and worth of human person and equal rights

of men and women” which is reflected in Article 7 of the UDHR and Article 26 of the

ICCPR. Both the Articles proclaims: “All are equal before the law and are entitled

without any discrimination to equal protection of the law.” While Article 1 of the UDHR

declares “equality in dignity and rights”, Article 2 establishes the principle of “non-

discrimination” and the aforesaid custom contradicts both these Articles. This custom is

inconsistent with Article 2, 3 and 26 of the ICCPR and also Articles 2 and 3 of the

ICESCR being violative of the principles of equality and discriminatory on the ground of

sex. This custom disregards the spirit of the CEDAW which is rooted in the “faith in

fundamental human rights, in the dignity and worth of the human person, and in the equal

rights of men and women.”141 This custom is also violative of Article 16(1) of the

CEDAW, which promotes equality in all matters related to marriage and family relations,

especially Clause (d) wherein “same rights and responsibilities as parents in relation to

139 Preamble to the National Charter for Children, 2003. 140 Clause (e) of Article 51A of the Constitution of India. 141 Preamble of the CEDAW, 1979.

204

their children” is ensured and Clause (f) wherein “same rights and responsibilities with

regard to guardianship, wardship and trusteeship” is ensured. It also infringes Article 16

of the UDHR, which states that men and women are entitled to equal rights as to

marriage, during marriage and at its dissolution.

According to the aforesaid custom if a woman remarries (even after the death of her

husband) her right to guardianship over her children ceases. This aspect of the custom,

apart from the basic principles of equality and non-discrimination, also violates women’s

“right to marriage” which, in Lata Singh v. State of U.P.,142 is wedded to her right to life

guaranteed in Article 21 of the Constitution of India.

The aforesaid aspect of the custom also violates her “right to marry and found family”

enshrined under Article 16 of the UDHR, Article 23(2) of the ICCPR, and Article

16(1)(a) of the CEDAW.

6.7.7 Adoption

Customary law of Adivasis while allowing men to give as well as take a child in adoption

denies the same right to women. Thus, Adivasi women in the matter of adoption are

suffering from gender discrimination which is violative of their fundamental rights

enshrined under Article 14 and 15 of the Constitution. It has been held in Philips Alfred

Malvin143 that: “The right of the couple to adopt a son is a constitutional right guaranteed

under Article 21.” Though the expressions “couple” and “son” are used in the judgment

but there is nothing in the judgment which indicates that adoption is only a right of

“couple” or that adoption can be made only of a “son”. The plain and simple meaning

implied in the judgment is that, “right to life includes right to adopt a child.” Therefore,

the aforesaid aspect of the Adivasi law not only denies equality to women but also

infringes their right to adopt a child which is a part of their right to life enshrined under

Article 21 of the Constitution.

142 Lata Singh, Supra note 91 Para 17, at p 2525. 143 Philips Alfred, Supra note 92 at p 189.

205

So far as international human right regime is concerned, the aforesaid aspect of the

Adivasi law is inconsistent with the fundamental ideals of equality, non-discrimination

and inherent dignity of human person enshrined in the Preambles of various Declarations

and Conventions. Since the custom denies equality and makes discrimination on the basis

of sex, it is also violative of Articles 1, 2, 7 and 16(1) of the UDHR; Articles 2, 3 and 26

of the ICCPR; Articles 2 and 3 of the ICESCR; Article 16(1) of the CEDAW, especially

Clause (f) wherein “same rights and responsibilities with regard to adoption of children”

are declared. It is also inconsistent with Articles 2 and 43 of the Draft UNDRIP and

Article 3(1) of the ILO Convention No. C169.

The Adivasi law disregarding mother’s consent while giving her child in adoption or

bringing stranger child in her family flagrantly disregards her right to live with dignity

and her right to privacy an aspect of her right to life. This aspect of the Adivasi law, thus,

allows the citizens of India to breach their fundamental duty “to renounce practices

derogatory to the dignity of women”144 therefore unconstitutional being violative of

Articles 21 and 51A of the Constitution.

Right to inherent dignity also form a part of her human rights enshrined under Article 10

of the ICCPR. Therefore, this aspect of the Adivasi law is inconsistent with Article 10 of

the ICCPR and ideal of entire human right regime.

In the Adivasi law, there is no provision ensuring the welfare of the child to be adopted.

Adoption, in the Adivasi law, being the privilege of the father, the views of the child and

consent of his mother is disregarded. Welfare of the child is a part of his right to life

enshrined under Article 21 of the Constitution.145 Therefore, this aspect of the Adivasi

law contravenes Article 21 of the Constitution. Adivasi custom of separating the child

from natural family without taking into consideration of the wishes of the child and the

144 Article 51A(e) of the Constitution of India. 145 L. Chandra, Supra note 138.

206

consent of her/mother is violative of child’s “right to family” declared under Article 17(a)

of the National Charter for Children, 2003.

As regards internationally recognized human right regime is concerned, the aforesaid

aspect disregards Articles 21 of the CRC and 16(1)(d) of the CEDAW which speaks

about “ensuring best interest of the child”. The custom is violative of Article 12 of the

CRC since views of the child to be given or taken in adoption are disregarded. The

custom is also violative of the child’s right to preserve family relations,146 the right not to

be separated from parents except though lawful procedure147 and the right against

arbitrary interference his/her privacy and family.148

6.7.8 Women’s Right to Property

As regards women’s right to property in the Adivasi law is concerned, three points are

essential to note—Firstly, Adivasi women are not entitled to succeed in the property of

their deceased relatives; and secondly, under certain circumstances they are entitled to

possess the property of their deceased relatives; and thirdly, the right stated in second

point ceases, in case of daughter, on her marriage, and in case of widow, on her

remarriage.

According to Adivasi law, on the death of the father, in the absence of his male lineal

descendents, his daughter is entitled to possess the property of her father for maintenance.

Though the daughter is entitled to posses the property but her interest in the property is

limited up to usufruct only. She cannot sell or otherwise dispose it off, since she has no

absolute interest it. Her “limited interest” in the property ceases on her marriage. So far

as widow is concerned, she also is entitled to possess the property of her deceased

husband, if no male lineal descendent of her deceased husband survives. She is entitled to

enjoy the usufruct of the property for her maintenance. She cannot sell or otherwise

146 Article 8 of the CRC. 147 Article 9 of the CRC. 148 Article 16 of the CRC.

207

dispose it off, because she has no absolute interest in the property. It is a “life/limited

interest” which ceases on her remarriage.

The situation deteriorates if she is too old to remarry. Her “life interest” in the property

becomes enemy of her life. Her life is not in the interest of those who are the ultimate

beneficiaries of the property after her death. Therefore, her death, whether biological or

social, is in the interest of many persons. “Life interest” of the widow in the property is

one of the main sources of all forms of atrocities on her. It is because of this “life

interest” violation of her fundamental and human rights have been and are being

committed. Raja Ram Mohan Roy, the man who fought for eradication of the gruesome

practice of Sati and because of whose Herculean efforts Lord Bentinck legislated against

Sati in 1829, was of the opinion that: “Sati was practiced where the widows had

inheritance rights.”149 Off course in those days women’s right to inheritance was only

mean her “life interest” in the property. It is only after the enactment of Hindu Succession

Act, 1956, women’s interest in the property became “absolute”.150 Various researches

also have confirmed the facts that ‘the custom of Sati has strong linkages to property

rights’. For instance, it has been observed in the “Baseline Report on Rights of Women in

Relation to Marriage in India” that: “In Bengal, where the Mitakshara School of law was

followed151 till the introduction of The Hindu Succession Act, 1956, widows were

entitled to a lifetime share in their husband’s property. On her death the property reverted

to the heirs of her late husband. It is in this region that sati has been practiced to a great

extent.”152 The widows, if not burnt to death, are thrown out of the family. The “Baseline

Report” shows that, most of the widows who have taken refuge in various temples of

Vrindavan, Varansasi and Mathura are Bengali Hindus.153 Though the Adivasis have not

followed the practice of Sati but they have invented a substitute for it. The substitute is

their practice of declaring a woman as a witch. The “Baseline Report” highlights that, “In

the Jharkhand region of Bihar, of 95 cases of Santhals killed by Santhals, over a 30 years 149 “Encyclopaedia of Social Works in India”, (1968), Publications Division, Ministry of Information and Broadcasting, Delhi, Vol. 1, at p 380. 150 Section 14 of the Hindu Succession Act, 1956. 151 In Bengal, Dayabhaga School of law was followed and not Mitakshara School of law. This statement might have come inadvertently. But that does not impeach the findings in the Report. 152 Baseline Report, Supra note 111 at p 62. 153 Baseline Report, Supra note 111 at p 61.

208

period, 46 were witch-killings, 42 of the victims were women, most of them were

widows with land.”154 This is the grossest form of violation of her fundamental and

human rights.

In the background stated above, Adivasi law allowing “women to have only limited/life

interest in the property” is unconstitutional and inhuman. It actually denies property to

women. Property is not only wealth or possession, but the right to control, to exploit, to

use, or to enjoy wealth or possessions. Adivasi law denies all these rights to women. The

Supreme Court in Vimalaben Ajitbhai155 has stated that, “Though right to property is no

longer a fundamental right, but still is a constitutional right. Apart from constitutional

right it is also a human right.” Article 300A of the Constitution states that: “No person

shall be deprived of his property saved by authority of law.” Article 300A simply

means,—Firstly, no person should be deprived of his property; and secondly, he can be

deprived of his property but with the authority of law. Here it is pertinent to note that, the

‘law’ by whose authority a person’s property can be deprived with has to pass the test of

Article 13 of the Constitution. It means, the law by whose authority a person’s property

can be deprived with should not be inconsistent with any of the provisions in Part III of

the Constitution. And if it is inconsistent, it is void to the extent of the inconsistency.

Now the Adivasi law which authorizes ‘Adivasi women being deprived of property’ can

be tested on the touchstone of Article 13 of the Constitution. The litmus test of Adivasi

law makes it clear that the law is void being inconsistent with Articles 14 and 15 of the

Constitution (notwithstanding the majority view of the Supreme Court in Madhu

Kishwar156). Therefore, Adivasi law relating to succession to property is violative of

fundamental rights enshrined under Article 14 and 15 and hence unconstitutional. It is

154 Baseline Report, Supra note 111 at p 60. 155 Vimalaben Ajitbhai Patel v. Vatsalaben Ashokbhai Patel & Ors., AIR 2008 SC 2675, Para 42, at p 2684. 156 Madhu Kishwar, Supra note 83. In this case M.M. Punchhi and Kuldip Singh, JJ., in their majority decision upholed the Constitutional validity of the Chota Nagpur Tenancy Act, 1908, though the Act deprives the Adivasi women from their property rights. But the minority view of K Ramaswamy, J., is more interesting. K Ramaswami, J., by referring various provisions of the Constitution and various Conventions and Declarations declared the Act as unconstitutional. The majority view in this case, it is submitted, is incorrect and the minority view of K Ramaswami, J., correct. History is replete with examples where the minority view has proven to be more enduring and in tune with moving towards a less discriminating society.

209

also violative of the Constitutional right to property under Article 300A, since it deprives

Adivasi women from their property by authority of “unconstitutional law”.

Right to property is important for the freedom and development of a human being—men

and women equally. Hegel treats property as, “a realization of the idea of liberty.”157

Therefore, he maintains: “Everyone must have property of some sort in order to be

free.”158 The Andhra Pradesh High Court in Kurra Subba Rao v. Distt. Collector159 has

observed that, “There could be no individual liberty without a minimum of property.”

Property is not only wealth or possession, but the right to control, to exploit, to use, or to

enjoy wealth or possessions. Personality involves exercise of the will with respect things.

Adivasi law denies all these rights to women and thereby denies their personality.

Adivasi law allows them some usufructory rights in the property but this right is

restricted only to ‘just physical survival’. But the Supreme Court in Francis Coralie

Mullin160 has held that, “The right to life enshrined in Article 21 cannot be restricted to

mere animal existence. It means something more than just physical survival.” The Court

further held: “Right to life includes the right to live with human dignity and all that goes

with it, namely, the bare necessaries of life, such as … shelter over the head.”161 The

Supreme Court in Chameli Singh162 reiterated: “Protection of life guaranteed by Article

21 encompasses within its ambit the right to shelter to enjoy the meaningful right to life.”

Adivasi law, since it denies all these rights and liberties to women, is violative of Article

21 of the Constitution and is therefore, void.

In the Adivasi society, property mainly consists of agricultural land and home. In their

agro-based economy land is the main source of livelihood. Therefore, Adivasi law by

denying property to women denies their right livelihood which an important facet of the

right to life enshrined under Article 21 of the Constitution. The Supreme Court in Olga

157 Cited in, Biswas, A.R., “Property in a Changing Society”, 15 J.I.L.I. (1973) p 1, at p 22. 158 Cited in, Biswas, ibid. 159 (1994) 3 APLJ 249. 160 Francis Coralie, Supra note 85 Para 5, at p 752. 161 Francis Coralie, Supra note 85 Para 7, at p 753. 162 Chameli Singh, Supra note 85 Para 3, at p 1552.

210

Tellis163 has held that: “… The sweep of the right to life conferred by Article 21 is wide

and far-reaching. It does not mean merely that life cannot be extinguished or taken away

as, for example, by the imposition and execution of the death sentence, except according

to procedure established by law. This is but one aspect of the right to life. An equally

important facet of that right is the right to livelihood because, no person can live without

the means of living, that is, the means of livelihood. If the right to livelihood is not

treated as a part of the constitutional right to life, the easiest way to depriving a person of

his right to life would be to deprive him of his means of livelihood to the point of

abrogation. Such deprivation would not only denude the life of its effective content and

meaningfulness but it would make life impossible to live … Deprive a person of his right

to livelihood and you shall have deprived him of his life.” Therefore, Adivasi law, since it

deprives women from their right to livelihood, is void, being violative of Articles 21 and

39(a) of the Constitution.

Promotion of economic interest of the Adivasis and other weaker sections is one of the

ideals set forth under Article 46 of the Constitution. According to Article 46 it is the duty

of the State ‘to promote with special care the economic interests of the weaker sections of

the people and in particular Adivasis and to protect them from social injustice and all

forms of exploitations.’ The Supreme Court in Chameli Singh164 has held that, ‘right to

social and economic justice is inseparable component of right to life.’ “The tribals

(Adivasis), therefore, have fundamental right to social and economic empowerment.”165

Adivasi law by denying property rights to women, thus, contradicts the very ideal set

forth under Article 46 and the Preamble of the Constitution, which secures ‘socio-

economic justice to all the citizens of India’.

As regards internationally recognized human rights regime is concerned, the Adivasi law

infringes the basic principles of right to equality and non-discrimination enshrined under

the Preambles of UN Charter; UDHR; and CEDAW. On the same basis it is also violative

of Articles 1, 2, 7 of the UDHR; 2, 3, 26 of the ICCPR; 2, 3 of the ICESCR; 2 and 43 of

163 Olga Tellis, Supra note 86 Para 32, pp 193 – 194. 164 Chameli Singh, Supra note 85 Para 3, at p 1552. 165 Samatha, Supra note 96 Para 79, at p 3330.

211

the Draft UNDRIP; and 3(1) of the ILO Convention No C169. Since, in the matter of

property, Adivasi law denies liberty (a component of life) and dignity to women,

therefore violative of Articles 3 of the UDHR; and 6, 9 and 10 of the ICCPR. It also

disregards women’s right to social security enshrined under Article 9 of the ICESCR.

Adivasi law negates of Article 17 of the UDHR wherein it is declared that, “Everyone has

the right to own property and that no one shall be arbitrarily deprived of his property.”

The Adivasi law is also inconsistent with Article 16(1)(h) of the CEDAW which

declares: “The same rights for both spouses in respect of the ownership, acquisition,

management, administration, enjoyment and disposition of property, whether free of

charge or for a valuable consideration.”

According to Adivasi law, a daughter, under certain circumstances, is entitled to possess

the property of her father but her right ceases on her marriage. Similarly, widow’s right to

posses the property of her husband ceases on her remarriage. This aspect of the Adivasi

law violets not only her right to property under Article 300A of the Constitution but also

her right to marry which is wedded to the right to life enshrined under Article 21 of the

Constitution.166 Right to marry and found family is enshrined under Articles 16 of the

UDHR, 23(2) of the ICCPR, and 19(1)(a) of the CEDAW. Therefore, this aspect of the

Adivasi law is inconsistent with these Articles also.

166 Lata Singh, Supra note 91.