Posted by Dr. Chamundeeswari Kuppuswamy
Women farmers are a forgotten lot, they do not own assets and are not recognised for their work. While 85 percent of rural women work in agriculture, only about 13 percent are land owners, according to OxfamIndia. Patriarchal practices and gender socialisation are factors primarily responsible for this plight of the women farmers, meaning that land rights structurally escape women. Structural forces include law and policies. Customary laws are structural forces that affect women farmers badly. Customary laws have social legitimacy in local communities because they are bound up integrally with family life in India. Though customary laws of all religions including Muslims, Christians and others affect women, this article will specifically analyse the impact of Hindu customary laws on women farmers.
The impact of customary laws and its redressal is complex, and this article explains the complexities involved in bringing legal reform to age old customary laws. It is easy to wish for customary laws to disappear, but it has not been easy to bring about its abolition, as the struggle for a Uniform Civil Code in India clearly indicates. Another angle in which the subject of customary laws has to be viewed is the international angle, that of sustainable development. The United Nations Sustainable Development Goals 2030 asks that customary law be reformed, not abolished. The reason for this is that it is always necessary to have a rule of law, and not to create a vacuum by doing away with it completely.
Since in India, customary laws are the fundamental personal laws, it would create a vacuum to remove it, and thereby scupper the goals of sustainable development. Most people do not resort to civil and criminal laws and courts for redressal. In fact, it has been found in a recent survey that less than 29 percent go to lawyers and courts for a legal problem. Another deeper reason is a failure of modernity from an environmental perspective. With the advent of the enlightenment era and the industrial revolution, it was expected that modernisation would displace custom, but international law is reiterating the place of customary law in the modern world, possibly in the light of unsustainable modernisation.
A study in south India conducted by the University of Hertfordshire (UK) and Periyar University in Salem in Tamil Nadu (hereinafter UKIERI study) has found that customary practices are still very outdated and are far worse than customary laws in terms of discriminating against women. At least customary laws seek equality on paper, but customary practices are justified through a system of non-recognition of women’s agency.
Since the amendment of the Hindu Succession Act in 2005, women’s share of land is equal to that of the male member of a Hindu joint family, therefore this puts women farmers in a rural area at par with men in a joint family. However, the rights and duties as distributed within a joint family have resulted in women’s disinheritance in a family, and this is commonly practiced in the Salem district. Customary laws such as the women’s right to be maintained and the son’s duty towards the parents and others in the joint family who have the right to be maintained have led to practices whereby sons claim more inheritance that daughters, irrespective of whether they discharge their duties or not. And the customary laws have morphed in practice as patriarchal power boosters. While analysing the interviews conducted with local women, it emerged that the root of the customary property laws lies in the joint family system that is built on the notion of collectivism and duties towards each other.
The joint family system is still strong in India, and with it comes the system of patrilocal residence of the woman. Women farmers, farm workers interviewed in the UKIERI study cited this reason as a major cause for disinheritance of land. In-depth interviews were conducted about land ownership in the community in a village in Salem district, and the respondents came from the BC, MBC and ST communities. Women are given marriage gifts (Stridhana, according to Hindu customary laws) and often not much more than that. The value of these marriage gifts come nowhere close to the value of their inheritance. In Tamil Nadu, the equal share in inheritance as coparcenary was already stipulated under Tamil Nadu Succession Act, 1989 well before the central Act of 2005. The upbringing, and Stridhana put together is considered enough compensation for the lack of inheritance share in the land that is part of the undivided family property. Women are regularly disinherited because of partition, i.e. division in the family property that occurs before the death of the head of the family.
The Partition Act 1893 allowed for partition to be recognised by the law, and set out procedures for acceptable partition. This law however did not change the disadvantage that women were put under in that Act, in that women did not receive or share, nor could they initiate a partition. But the 2005 Hindu Succession Amendment Act changed that and put women at par with men when it comes to partitioning the family property. The UKIERI study in Salem revealed that partition always benefits the male siblings in the family and that the changes in the 2005 law are not being adopted in the customary practices. It is clear that customary laws foster customary practices even though they are not the same things, and therefore it is easy to understand why calls for abolition of customary laws have force.
In India, personal laws have been in review since the Rau committee in 1942 and earlier colonial efforts, the Constitution has committed through the Directive Principles of State policy to bring about a Uniform Civil Code, but the difficulty in implementing it is obvious from the number of years that have passed since its inception. It would be a mistake to consider that customs and customary law can be replaced or need to be phased out of existence, since this would go against the grain of human behaviour. What is needed is a common will and strong dialogues organised at the governmental level to foster reform that is organic and bottom-up.
The FAO and the World Committee on Food Security have recognised this, and have adopted the VGGT or the Voluntary Guidelines on land governance in the context of national food security, which urges countries to keep the best of both worlds. It urges countries to support and promote customary laws which provide a stable society and rule of law from the ground up, at low cost and organically developed. However it specifically recognises that customary law can hurt women, disinherit them and disempower them, therefore the women farmer’s interests and rights are safeguarded in the instrument. As a pioneering instrument on land and food matters, the VGGT holds the key to women farmers rights, and India needs to seriously consider following the ‘responsible governance’ recommendation of the VGGT and to steer discussions in reforming customary law, and taking customary practices along with it.
Community leaders, and customary heads who resolve disputes on customary interactions should be reached out to in the context of reform of customary laws. Radical and out-of-the-box approaches need to initiate that real bottom up dialogue on the status of women in modern times, the role of the joint family system and the winners and losers from this. Our women, our food, our farming, and ultimately the survival of the planet is at stake here.
The author likes to thank PhD student Lianne Oosterbaan for the data for this article from fieldwork done for the UKIERI project.
Dr. Chamundeeswari Kuppuswamy is trained in public international law and currently is Senior Lecturer at Hertfordshire Law School, and Co-Convenor of the European Society of International Law Interest Group on Environmental Law. She is a recipient of the 2014 Happy 100 Listing from the Independent newspaper for making a difference to peoples’ lives in the UK. She can be found on Instagram, Linkedin and WordPress. You can read her work on securing tenure rights for food security, here.
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