The land goes to the men simply because they are men. Whether the son wants to cultivate the land or leave it fallow, he will still have the right over that land.
It would be futile … for a daughter to expect a share, for no matter how much one does, for as long as there is a son, parents will never give their land to a daughter.
(Responses from women in the field, Orissa)
Land rights for women in India, particularly within the rural context, are crucial for women’s empowerment for several reasons. First, the overwhelming dependence on agriculture for survival makes land the most crucial resource for all who depend upon it. Land ownership is vital to overcome dependence upon others for survival and subsistence needs. Second, the absence of a social security net (Guhan 1992) makes land ownership for women even more important for their economic empowerment. Third, land has significant socio-political implications, where its possession leads to power and prestige (Basu 1990). Thus, access to and control over land is vital for women’s survival and empowerment in rural India.
This chapter analyses two separate legal regimes that establish women’s rights over property in India – the Hindu Succession Act 1956 and the Orissa Land Reforms Act 1960. Focusing on Hindu peasant women, the discussion highlights the way these regimes together perpetuate women’s exclusion from property rights. A deeper, critical evaluation of the law establishing Hindu women’s equal property rights through succession and inheritance reveals that, although based upon liberal values of equality and fairness, it reinforces the religious/cultural ideology underpinning their traditional exclusion from land ownership. Land reform legislations, which explicitly seek to redistribute agricultural land and confer ownership based on the value of work, and the category of workers as male, furthers this exclusion. The chapter discusses the impact of these twin regimes on prospects for land ownership by Hindu peasant woman working on small/family-owned farms, and concludes that the regimes promote their exclusion as Hindu women both on the basis of succession and inheritance, and as workers.
Law has proved a vital site of engagement for those working toward women’s empowerment in India (Kapur and Cossman 1996). The specific commitment of the postcolonial state toward social and economic transformation (Rai 1999) has enabled an active engagement with the constitutional and legal framework as a means for addressing the position of women in India (Government of India 1974). The numerous post-independence laws on dowry, sati, rape and areas of family law, among others, demonstrate this legal engagement.
The particular significance of property rights for women’s empowerment has been acknowledged since India’s independence. A compelling case for women’s independent rights in land has been made by many, most notably by Agarwal (1994). Numerous policy formulations and official commitments, including legislation, have recognized the need to institute explicit legal guarantees of women’s right to independent and absolute ownership of property. However, in a situation where acquisition of land through purchase is rare and difficult (Agarwal 1994; Basu 1990), inheritance and succession are particularly significant means for women to acquire ownership rights over land. For example, the changes introduced in 1956 by the Hindu Succession Act (HSA), established for the first time Hindu females’ absolute right to acquire property through inheritance and succession. This Act not only changed Hindu women’s status in respect to property ownership, it defined their share as being equal to that of a Hindu male.1
Notwithstanding these fundamental legal changes and the operation of redistributive land reforms, women’s ability to own land has barely changed. Thus, more needs to be done if the law is to empower rural women. To that end, we need to recognize that legal guarantees are ‘grounded’ within dominant socio-cultural and religious contexts. To the extent such contexts/frameworks exclude women’s individual interests and place them in a subordinate position, legal guarantees are limited as a means of empowerment. Therefore, we need to reexamine the possibilities (and limitation) of empowerment through law. Such examination can lead to identifying, exploring and developing the contexts that offer increased possibilities for effective legal intervention. To do this, I explore the empowerment potential of recognizing rural women’s work contribution and addressing them as workers in law. For Hindu peasant women engaged in subsistence farming, the transformative potential of law for improving access to land may begin to be realized through the recognition of women’s agricultural labour. In so far as Hindu rural women believe they are entitled to certain rights as workers and contributors in agricultural production, the validation of this entitlement through law could be empowering.
However, whereas the limitations of law to bring about social change are widely understood as an outcome of the structural and institutional contexts/frameworks in which law is embedded,2 the impact of cultural values and principles is less appreciated. Based on discussions with Hindu peasant women in rural Eastern India,3 I highlight some of the limitations of legal entitlements founded upon religious and socio-cultural values. Taking land reform legislation in India as an example, I discuss whether there is a lack of recognition of women’s work and contribution in law, reflecting a wider reluctance to recognize women’s work outside the home. I conclude that a serious engagement with law as a means for empowering women through effective access to land must take account of, recognize and address women’s material realities and interests as agricultural workers and producers as well as the larger socio-cultural system in which law is embedded.
This discussion aims to critically evaluate the specific contours of law’s ‘embeddedness’ for rural Hindu women. By highlighting the principles upon which legal rights are framed, I hope to expose the conflict between avowed legal aims and prevailing norms. Further, I wish to emphasize that normative points of conflict, in so far as they are not addressed by existing law, continue to promote and entrench Hindu women’s traditional exclusion from property ownership within the law itself. A critical reading of the legal provisions, together with voices from the field, permits a reflection upon the values, principles and norms (both implicit and explicit) that have a direct bearing on legal effectiveness, and provides insights into how to foster women’s empowerment through the law.
The Indian legal framework distinguishes between different, religion-based, ‘personal’ laws. Consequently, an individual is governed according to her religion in certain ‘personal’ matters, including marriage, divorce, custody, guardianship, inheritance, succession, adoption and maintenance. The law applicable in these areas is a combination of traditional religious law, comprising of regulatory norms within religious precepts, as well as relevant statutory law. Whereas the rules derived from religious precepts are constituted by practices that have come to comprise its ‘traditional’ core, statutory law includes both pre and post-independence legislation and judicial decisions.
The historical processes culminating in the present regime of personal laws raise highly problematic issues regarding the engagement of the colonial regime with the native elite to establish relations of rule (Basu 1999: 249). Although the dichotomy between ‘modernity’ and ‘tradition’ defined much of the colonial project (Chatterjee 1993; Heimsath 1964; Desai 1959; Natarajan 1959), the colonial government also set up religion4 as the determining principle for the colonized nation’s future (Mani 1990; Basu 1999; Nair 1993; Sangari and Vaid 1990). The implications for gender constructions were particularly significant. Women’s bodies became the site for fulfilling the colonial ‘civilizing mission’ while simultaneously allowing patriarchal hegemony to be retained by the native male population (Basu 1999; Nair 1993).
Lata Mani’s work illustrates these processes for sati regulation (1990). Religious practices also defined the construction and settlement of debates on the issues of widow remarriage (Chaudhury 1990, 1993; Chakravarti 1990; Heimsath 1964) and prostitution (Oldenberg 1990; Nair 1993). In privileging religion within legal discourse, women were held up as pre-eminent signifiers in debates about ‘tradition’ – indeed they have been seen as its embodiment (Mazumdar 1976; Sangari and Vaid 1990; Chakravarti 1990; Chatterjee 1990; Nanda 1976).
The postcolonial state continues to adhere to this position. Witness the desire to seek legal legitimacy through religion evident in the debates in parliament during discussions about the proposed Hindu Code Bill in the 1940s and 1950s. Further, the continued existence of separate personal laws for Hindus, Muslims, Christians and Parsis within an overarching constitutional framework committed to social and political reconstruction and liberal principles is a clear contradiction. Notwithstanding guarantees of equality regardless of religion,5 the constitutional declaration of secularism,6 and the express objective of a Uniform Civil Code,7 the legal framework upholds a contrary position. Thus, in 1957, the Supreme Court, in the case of Narasu Appa Mali v. the State of Bombay,8 declared personal laws outside the scope of ‘law’ within the Fundamental Rights chapter of the constitution.9 Thus, the foundational principle for these ‘laws’ continues to be religion, and not constitutional principles, even when they conflict.
The dominance of religious and traditional social structures and ideologies, combined with the liberal distinction between the private/public implicit in the Indian constitutional and legal regimes, has allowed the state and the law to limit the construction of the female subject within the discourse of religion and the family. Although it may seem that Hindu law in fact breaks down law’s reluctance to enter the ‘private’ sphere of women’s lives by addressing the family within the ‘personal laws’, the result of this legal regime is the exclusion of a large part of women’s ‘private lives’ that the religious discourse ignores. Thus, the material aspect of women’s ‘private’ lives in the domain of work and production, as agricultural workers and producers, is excluded from the purview of law.
Thus, Hindu women are governed by ‘Hindu law’, which today consists of ‘traditional’ or ‘customary’ Hindu law, pre- and post-independence statutes and judicial decisions (Derrett 1968; Mulla 1994). The traditional Hindu laws have been declared and interpreted through commentaries that came to be understood as the law. This dual legal system is meant to be complementary and not contradictory; traditional Hindu law may be modified or abrogated by statute (Mulla 1994), and statutory laws may create new rights and obligations or alter the existing structures in certain cases. However, a dualistic pattern has evolved, wherein people living in accordance with traditional Hindu laws, which have been incorporated within family and social structures, are faced with new norms introduced by statute.
Hindu women did not have a substantial claim to the inheritance of property under customary Hindu law, and even on the rare occasions when they could inherit, the estate was limited (Mulla 1994). The first statutory enactment to directly contradict this position was the Hindu Women’s Right to Property Act of 1937. The Act awarded the widow, the predeceased son’s widow and the pre-deceased grandson’s widow a share (albeit limited) in the property of the male they survived. The provisions of the Hindu Succession Act (HSA), passed in 1956, overrode any of the matters dealt with in it and repealed all existing laws inconsistent with it.10
The HSA governs inheritance for Hindus today by codifying and amending the law relating to intestate succession among Hindus, giving equal rights to both female and male heirs (Mulla 1994). It sought to improve upon the earlier Hindu Women’s Right to Property Act, which had for the first time awarded widows rights to an estate.11 Further, the 1956 Act provides for the property of a female to be her absolute property.12 Most significantly, for analysing legal empowerment strategies for women, the HSA guaranteed equal shares to males and females, and absolute estate to females.
This section discusses some aspects of the roles, values and position accorded to Hindu women that are sanctioned and upheld by the legal framework. I argue that whereas the HSA aims to enable Hindu women to own property, Hindu cultural values undermine women’s ability to own property, particularly land. These values constitute Hindu women as persons without individual self-interest, particularly in regard to property ownership, and as persons whose interests are completely submerged within the family.
In the HSA, women are addressed as daughters in respect to their interest visà-vis the father, sisters in relation to their right in conjunction with the sons, and as widows. The provisions entitle women to an individual share of property within each of these positions in the family. Thus, while taking the family as a relational entity, the legal provisions under the HSA nevertheless promote an individualistic notion of property, with the assumption that persons can act on their rights as individuals separate from the family (Sharma 1990). Therefore, the female addressed as daughter, sister and widow is assumed within the HSA to have interests and act as an individual separate from the family in at least three ways. First, as a daughter she continues to be a member of her parents’ family socially, culturally and factually. Second, as a member of her parents’ family, she has an interest, both perceived and legitimate, in her parents’ property. Third, as a sister or widow, she has an interest in a claim even if this causes competition with her brother or son. Thus, a Hindu female’s interest in property ownership is assumed to be based on her individual interests, rather than her family and/or other defining social relations.
How valid are these assumptions? Do they reflect the culture and practice within contemporary Hindu family and society? I believe they are in fact rarely borne out in the social reality of women’s lives. As a daughter, a female internalizes the cultural devaluation of girls made clear by the explicit male preference in most Hindu households. A daughter’s birth is not traditionally welcomed (Madan 1994; Mandelbaum 1970), and this preference continues today. At the birth of a son, drums are beaten in some parts of the country, conch shells are blown in others and the midwife paid lavishly. No such spontaneous rejoicing accompanies the birth of a daughter. Many households still perform ancient rites to encourage the birth of a male child. The practice of female infanticide and the use of amniocentesis against the birth of a female child is common (Krishnaswamy 1996; Patel 1996). These practices also express the scriptural values, which require sons for religious rites, particularly the obligation and ability of sons only to perform ritual oblations for the soul of deceased parents (Krishnaswamy 1996).
The belief that a girl does not ‘belong’ to her parents’ family, that she is a ‘guest’ for a temporary period, and that her ‘real’ home is with her husband’s family reduces a young girl’s presence in her parents’ home to being a ‘burden’ to them. Madan, in his study of the rural pandits (Brahmins) in Kashmir, notes that an unmarried female (agnate) is always referred to as amanat, that is, as someone held in trust on behalf of her lawful owners. A young girl’s upbringing is overshadowed by the fact that she is to be married and sent away to live with her husband and parents-in-law. A girl’s membership in her parent’s family is seen as undesirable at worst, and temporary at best. Before marriage, her parent’s home is her home too, but, once married, she becomes a stranger to it. Moreover, the house of strangers, her in-laws’ home, is supposed to become her home. In time, it does, as she begins to participate in domestic life. However, the position of the wife as a ‘newcomer’ or stranger never fully disappears, although she may acquire other positions such as mother, mistress of the house and mother-in-law over time (Madan 1994).
Marriage therefore bestows upon a woman the enduring status in her life. It requires her to relinquish her emotional attachment and expectations toward her parents’ family and to develop similar sentiments toward her husband’s family. The dominant role for the Hindu woman is as a wife but her position as a wife and daughter-in-law is subservient. The wife has to ‘earn’ her position and respect, bound by manifold duties and obligations (especially to produce a male heir), and strive to achieve the ideals inculcated in her for her ‘happiness’. Her precarious position not only reinforces her insecurity, but also leaves her dependent on her brothers for defence against ill treatment by her in-laws or husband. The special bond between brother and sister is marked by this reliance.13 Thus, from childhood to marriage and after, a woman’s identity is defined in relation to others: as a daughter to parents, as a wife to her husband (and daughter in-law to his parents) and mother to her sons (and daughters)
This brief discussion highlights the social and cultural context of the ‘Hindu family’ in which the legal regime is embedded. This context limits Hindu females’ ‘individual’ legal rights in practice. Although Hindu women have a statutory right to individual shares through inheritance, this right does not resonate with the cultural ideology, and women’s lived realities, identities and interests. In the next section I argue that, in addition, the law also does not reflect the socio-economic reality of women’s lives, as they are significant actors in agricultural production.
The link between work, contribution and access to resources has been posed by Sen in his conceptualization of access to resources as an outcome of bargaining (Sen 1983, 1987).14 Within this, he argues that ‘perceived contributions’ affect an individual’s ability to access resources. In the context of establishing a claim through bargaining, Sen points out that notions of legitimacy and reward affect an individual’s access to resources. Thus, those perceived to make greater contributions to the common fund get access to a greater share of the resources. Sen makes the point that the actual time worked is not important, but the value attached to that work is. In other words, what matters is whether the work is perceived as contributing to the common fund or not, rather than whether it actually is crucial to the family’s well-being and survival (Sen 1987). Agarwal (1994) extends this conceptualization to include self-perceptions as well. Adopting this framework, I will argue that the recognition or otherwise of women’s work and contribution in agriculture influences their access to land as a resource. I will examine the extent to which law recognizes and values women’s contribution to agricultural production thereby promoting their ability to access land.
In the broader context, the construction of the family as a separate sphere, apart from productive processes, is predicated on the assumption that women are located within the ‘domestic’ sphere, while men do ‘productive work’ in the public arena (Harris 1981: 50). Within this, the recognition and value accorded to women’s contribution when they are engaged in household or home-based production is undervalued because this work is located within the domestic/private arena. The submersion of women’s productive role within their role as familial nurturer exacerbates the invisibility of women’s role in income creation or contribution to the family’s survival and sustenance. Even when women are visibly engaged in agricultural production, the value placed on their labour and consequent contribution does not necessarily increase. In the Indian context, notwithstanding the large and varied amount of work done by women in agricultural production, the men are seen as doing the major jobs. Ploughing, irrigation and work involving physical strength are considered more difficult, and, consequently, men’s work is more valued (Mencher 1993; Mies 1986). The dialectical relationship between the material context of women’s relationship to agriculture and the land on one hand, and gender ideology (here related to the valuation placed on their agricultural work) assigns lower value to women’s role (Mencher 1993).
The issue of land ownership and control has two very different implications in the context of women in agriculture. First, the relationship of those who do not own any land, but work on it as wage labourers for others, is a question of landlessness. Here the issue is one of redistribution or allocation of land through land reform policies establishing ownership and control for landless agricultural producers. Second, once land is owned individually, ownership may then be transmitted to heirs including females, through succession. Women’s work in agriculture may be classed according to the two contexts: women working as hired labourers primarily with no land or insufficient land, and women working as cultivators on their own land or that of their fathers/husbands.
To the extent that women are engaged in agriculture as waged labourers, they are accorded legal status as their participation in agriculture is clearly identifiable and measurable, and legislation on minimum wages is readily applicable to women’s as well as men’s work. The evaluation of women engaged as cultivators on their own/family-owned land, on the other hand, is problematic on many counts. Is it domestic work, household work, leisure work or economically productive work in agriculture? The evaluation of their work is ambiguous, particularly its necessity for agricultural productivity and household income. No specific remuneration provides an index of the cost/benefit to the family.
In the absence of external factors separating productive labour from domestic obligations, the effect of others’ perceptions based upon the prevailing cultural ideology about women’s work is such that, while women understand themselves as equal workers and contributors, this does not ensure the visibility of their contribution. Although my informants considered themselves equal to men in providing for the family, they realized that this was not recognized as such by men or in the wider society. This, in turn, affected the value that they placed on their work, and undermined the legitimacy of their claim for greater access to land. Taken together, this has a direct effect on perceptions of women’s agricultural contribution, which is consistently unrecognized and undervalued, and also perceived to be very low or non-existent. Hence, despite their hard work, women have little control over the primary means of subsistence, namely land (Mies 1986).
State policy and development programmes in India reflect and reinforce the non-recognition of women’s contribution to agricultural production. Development programmes for women generally ignore women’s agricultural work, focusing on women not as peasants or wage workers, but as property-less, petty-commodity workers (Mies 1986: 153). The fact that most rural women do not own land leads policy-makers to disregard the need for a precise recognition of women’s work in agriculture. In this respect, the guarantees within the HSA and the potential for women to become independent property holders seems to have had little impact on policy-makers and implementers. In Orissa, a District Commissioner looked surprised when I asked if there were any programmes for women as cultivators or peasants. He responded by listing various programmes ‘for the development of women’, such as milch cattle development, milk cooperatives, basket making and the like. Women working in agriculture were clearly seen not as cultivators but as petty-commodity producers or engaged in allied activities.
Various studies have revealed the nature and extent of women’s work participation in subsistence and agricultural labour (Saradamoni 1994; Mies 1986; Bagchi 1993) and the fact that women’s involvement in agricultural labour is actually increasing (Government of India 1993). The absence of policies for women as independent providers/workers reflects the refusal to acknowledge women’s agricultural work. This refusal is further reinforced by assumptions that women are ‘dependants’ who merely supplement family subsistence requirements. This cycle has led to women’s own underestimation, not to mention the gross underestimation and invisibility of the women’s work in official (and other) studies.
The non-recognition of women as cultivators and contributors to agricultural production is very closely linked to the concepts and means used to measure and enumerate women’s work (Bagchi and Raju 1993; Beneria 1988; Sen and Sen 1985; World Bank 1992). Official statistics dramatically under-represent women’s work. Although a complete accounting of women’s work is difficult to determine (Bagchi and Raju 1993; Beneria 1988; Ahmed-Ghosh 1993), time allocation studies (Kaur et al. 1988; Saradamoni 1988) reveal substantial differences between women’s actual work input and its enumeration in official studies (World Bank 1992; Anker et al. 1993). In the next section, I explore how land reform policy in India illustrates the non-recognition of women as workers and contributors in their own right within the policies of the state.
India, like most Asian countries, is characterized by a high population density and small farm size in the agricultural sector. The average farm size is between two and four hectares, and despite redistributive land reforms (enacted through the 1960s) the distribution of farm lands remains highly unequal. The rationale behind the Indian agrarian reforms, as in many other countries, has been to give the ownership of land to the tiller. In order to improve agricultural productivity and the dynamism of the rural economy, landless peasants were given ownership rights.
In considering land reform, I am concerned mainly with land redistribution, which includes the distribution of land from households with ‘excess’ landholdings to households owning little or no land, as well as the granting of ownership rights to current tillers. The literature dealing with the merits, success and failure of land reforms in India is vast. While largely a story of failure (Appu 1996; Jannuzi 1994; Baxi 1986), there are also arguments for renewing the case for land reforms in South Asia (Quibria 1995).
Land reform policy in India illustrates the failure of state policies to recognize women as workers and contributors to agricultural production in their own right. It illustrates that the very process of under-enumeration leads to non-recognition of women’s work, despite massive evidence to the contrary. Although land reforms were based on principles of redistributive justice (no concentration of land in the hands of a few), empowerment (control to workers over the productive asset, i.e. land) and economic justice (control over means of production to reduce severe indebtedness and poverty of a majority of the agrarian population), the principle of gender equity was ignored. The definition of ‘farmers’ or ‘tillers’ or ‘tenants’ was premised upon the male as the active worker/producer, built upon ignorance of the nature and extent of women’s work, particularly their contributions to the family/household’s survival as a result of such work. Moreover, where women were taken into account, they were again treated mainly as ‘dependants’ or non-contributors to family/household income (Agarwal 1994). Further, although women play a key role, particularly in supervision of tasks on small family farms, which increases productivity through intensive use of less expensive family labour (Agarwal 1994; Quibria 1995), gender issues within land reforms have been virtually ignored. As Quibria acknowledges:
We know very little about the impact of land reform on (the) issue, a fact that ought to give us pause … faced by a lack of research directed specifically at the status of women under regimes of land reform, we are led to speculate on the status of women in peasant societies ….
(1995: 142)
The amount of land (ceiling) is awarded by family, defined as the cultivator, spouse, minor sons and unmarried minor daughters. Adult sons receive special consideration, either through additions to the total household land, or specified land in their own right. As Agarwal notes:
Underlying the ceiling specification is clearly the assumption that those who are recognised either as part of the family unit or separately (as with adult sons) will be maintained by the land allowed …. Under these enactments we thus have the extraordinary situation where most states do not give any consideration, when fixing ceilings, for the maintenance needs of unmarried adult daughters and married minor daughters, while giving consideration to all sons, whatever their age or marital status.
(1994: 219 [emphasis added])
Thus, a gendered analysis of land reforms demonstrates that women are absent as the target of desired goals and objectives. Land ceiling laws in many states explicitly overlook and ignore women as beneficiaries. They treat women as a ‘dependent’, without independent rights. Clearly, married daughters are regarded as belonging to their husbands’ household. But what of the unmarried adult daughter? What is the allocation of land for her maintenance? In addition to creating a gross inequality between males and females, this practice also perpetuates the notion that the daughter is a ‘burden’ to her parents, while the son maintains or adds to the family resources.
Whereas the law may be considered to enshrine, legitimate and reinforce basic societal values, and yet sometimes spearhead cultural change (Baxi 1986), the land reform laws in India fail to introduce the necessary changes for women by questioning and addressing the gendered nature of land distribution. If one considers the potential of law to engender new values and generate changed expectations and attitudes, at best the land reform laws have missed the opportunity to foster more gender-equitable values, ideas and symbols. At worst, they have deepened the already entrenched notions of women as unproductive persons who have little significance for the family or nation’s agricultural economy.
The inclusion of females’ rights of succession to parental property under the Hindu Succession Act 1956 introduces a principle that significantly departs from traditional practices. At the same time, much of these successory rights remain unchanged by the Act. While the Act contravenes existing norms, understandings and attitudes by introducing a fundamental change in Hindu women’s property rights, it simultaneously retains significant aspects of socio-cultural values informed by religious belief that oppose these changes. The law supports ‘tradition’ by locating women within the ‘Hindu’ family and identifying them as ‘Hindu’ women. In doing so, law sets up a self-contradictory position, affected by fundamentally opposite forces, which raise issues regarding the ultimate effectiveness of the changes themselves. As Parasher notes:
Though India has not imported foreign laws for the family and religious institutions, it is nevertheless true that the modern state legislations incorporate principles that are quite contrary to the principles in traditional jurisprudence, particularly in aspects relating to women.
(1992:31)
Changes in the legal provisions affirming women’s equal right to parental property would require the identification of women’s personhood independent of their relations to others in the family. Further, it would require the continuing identity of a woman as a member of her parents’ family even after marriage. This would also require women, as sisters and widows, to compete with and thereby jeopardize their relations with brothers and sons, and the security they may expect thereby.
I have argued that, in fact, this is not the reality. The assumptions upon which the law is based continue to be unrealized, and in this the law itself plays a significant role. The law in fact upholds Hindu cultural ideology that reinforces women’s subservience, dependence and familial role. There is very limited scope for the emergence of women’s interests as individuals, independent of their social relations. In evaluating women’s self-interest in land ownership, it would be difficult to conclude, therefore, that the law, both in its statutory expression, as well as inclusive of religious and cultural norms, fosters such an interest. While the law is ostensibly premised upon the existence of such interest, it in fact reinforces the ideology that excludes it. It is not able to overcome customary practices. Where the new provisions may be alien to a significant number of Hindu women:
this leads to the perception of law as an imposition of alien values, and therefore makes the law ineffective in changing attitudes and values where the rightness of the law is questioned.
(Parasher 1992: 31)
The issue of land ownership in India is difficult even when one considers only caste and class. Introducing gender makes it far worse, since the entire gamut of economic, social, cultural, religious and political forces that make up the patriarchal ideology are brought into play. Nonetheless, though gender bias comes into play over land ownership, I believe the separation of economic empowerment from socio-cultural and political empowerment provides a starting point for analysing the law’s approach to land ownership. While these sources of empowerment overlap because land issues exacerbate other types of gender bias, a focus on land issues in their economic rather than ideological aspect may provide a starting point for critical evaluation of the law as a means for empowering women. Women’s role and contribution in agricultural production could be such a starting point.
Where legislation to enable land ownership exists, as in India, to make it effective, new attitudes and expectations must be created, both on the part of women and of society in general. These in turn must be developed through tangible, material policy measures to provide a real basis for generating changes in attitudes and ultimately the effectiveness of legal guarantees. In the case of women and ownership of land within the agrarian sector, a gendered access to land requires law to create a basis of legitimacy on two counts: cultural and socio-economic. Enhancing and supporting women’s role in the agrarian economy will allow for better access to the necessary inputs for growth. This in turn will provide the basis for women to negotiate control of the primary resource, land, by providing a starting point from which women can make decisions regarding resource allocation within their families due to increased recognition of their contribution to production and hence increased legitimacy of their demands.
The non-recognition of women’s role in agricultural production has led to women’s continued exclusion from land, which further excludes them from the view of policy-makers. Control over land by women must therefore be increased if they are to be considered by policy-makers as major actors in agricultural production, not merely ‘supportive’ ones. A gender-equitable land reform policy could endow hitherto landless female agricultural labourers with land as well as consolidating the ownership of those with titles to land. A precondition for the correction of the problem, therefore, is to recognize that women are in fact significant contributors to agricultural production.
The recognition of the work and contribution of women in agriculture, and as producers in their own right, not merely dependants or in supportive roles, would enhance gender equality within land reforms. A gender-balanced system of land ownership, thought to have been achieved through the Hindu Succession Act, must be established through the creation of a new basis of legitimacy. This must include the recognition of women’s contribution to and role in agriculture at the same time that the entrenched cultural ideology that excludes them is replaced by new values. How this can be achieved remains a challenge to those who are committed to women’s empowerment. The first step, however, is the recognition that legal change without attitudinal and material change will not empower those on the margins of society, including women.
1 Section 8, read with the Schedule, Hindu Succession Act 1956.
2 For example, in its Report, the National Committee on the Status of Women notes:
Over dependence on legislation to bring about social change is a characteristic, not only of our country, but of several modern societies, particularly those emerging from colonial rule …. But it must be emphasised that legislation by itself cannot change society …. The judiciary has often failed to give effort to the principles underlying legislation … the executive has also failed to implement these laws or to spread awareness about them.
(Government of India 1974: 39–40 [emphasis added])
3 The discussions were held with Hindu women engaged in agricultural production from three villages in two districts of Western Orissa, Jharsuguda and Sundargarh. The forty-three women included both landless agricultural labourers and peasant women from small farming households.
4 The official administrative process by which this was done included the Plan of 1772, issued by Warren Hastings, that Hindus were to be governed in (personal) matters by Hindu law, and Muslims according to Islamic law. This was rigorously enforced by the courts and administrative offices, leading to the necessity of compiling the necessary ‘Hindu law’ to be applied. For a critical account of this process, see Derrett 1968; for a formal historical account, see Basu 1983, Jain 1966 and Gledhill 1964.
5 Article 14, op. cit.
6 Preamble, Constitution of India 1950.
7 Article 44, op. cit.
8 ILR (1951) Bom. 775
9 In this case, the personal laws were challenged as being contrary to Article 14, the fundamental right to equality, and therefore void under Article 13, which provides that a law in contravention with the fundamental rights shall be void to the extent of the inconsistency.
10 Section 4, HSA. However, it does not touch or affect the law relating to joint family and partition, and the previous law continues to operate in such matters. Thus, for instance, the right of the mother or widow to a share on partition between the father and sons in a Mitakshara family or between the sons after the death of the father is not affected or abrogated by this Act. Gopal Narain vs. D.P. Goenka (71) A. Delhi 61.
11 Section 3, Hindu Women’s Right to Property Act 1937.
12 Section 14, HSA.
13 The special relation between brothers and sisters, marked by the brother’s duty to protect his sister and the sister’s special dependence on him to do so, is celebrated by millions of Hindu males and females every year in the festival of ‘Rakhee’. The festival is the celebration of the brother–sister relationship, where the ritual consists of a sister tying a piece of thread on her brother’s wrist as a symbol of lifelong affection, in return for which the brother is bound by a duty to always come to her protection.
14 The ‘bargaining approach’ is a development of economic formulations of the bargaining ‘model’. For detailed analyses and applications of the bargaining approach in various contexts, see Sen (1983, 1987); Agarwal (1994, 1995); Kabeer (1994); Hart (1995); and Folbre (1986).
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