A Digest of Case Law on the Human Rights of Women - Asia Pacific ...

Madhu Kishwar and others v State <strong>of</strong> Bihar and others with Juliana Lakra v State <strong>of</strong> Bihar (India)
Articles 14, 15 and 21, since rules <strong>of</strong> succession do sometimes provide differential
treatment that is not necessarily equal. Such lack <strong>of</strong> uniformity would not in all
situations constitute a violation <strong>of</strong> equality since this would disrupt the existing
state <strong>of</strong> the law. The majority <strong>of</strong> the judges held that if they found in favour <strong>of</strong> the
petitioners, there may be a flood <strong>of</strong> similar claims in diverse situations.
However, the Court held that the right to a livelihood was protected by the
Constitution and therefore the exclusive right <strong>of</strong> male succession, enshrined in
sections 7 and 8, must remain in suspended animation until the right to livelihood <strong>of</strong>
the female dependants <strong>of</strong> the last male holder expired. Only upon the exhaustion or
the abandonment <strong>of</strong> land by female relatives could the males in the line <strong>of</strong> descent
take over the holding exclusively. The Court held this sufficiently protected female
dependants.
The Court also held that the term “female descendants” could not be read into the
term “male descendants” using statutory interpretation in matters <strong>of</strong> succession since
customs vary from people to people and region to region in Indian law. The Tenancy
Act specifically protects customary succession laws in favour <strong>of</strong> males because tribal
people value their own customs and traditions. The Court found that there was no
legislative intent therefore to include “female” in the term “male”.
The Court further held that judicial activism in the courts, where judges reinterpret
provisions beyond the legislative intent should be avoided. It found that it was
inappropriate and elitist for judges to enforce on tribal people the principles <strong>of</strong> equal
succession that is enshrined in other personal laws such as the Hindu Succession Act
1956 or the Indian Succession Act 1925. The role <strong>of</strong> the courts, it was held, is merely
to advise and point out any legislative gaps to the Executive so that the State, in its
legislative role, can attend to any problems.
The dissenting judgment: K. Ramaswamy J
Ramaswamy J held, in contrast to the majority, that the full rights to the estate <strong>of</strong>
their parent, brother, or husband should be granted to women in tribal communities
as heirs <strong>of</strong> intestate succession so that they could inherit the property equally with
male heirs and with absolute rights. He found that the safeguard provided by granting
usufructary rights to female dependants was insufficient due to the diverse pressures
women face.
The dissenting judge found that the Protection <strong>of</strong> Human Rights Act 1993, enacted by
the Indian Parliament defines human rights to mean, “the rights relating to life, liberty,
equality and dignity <strong>of</strong> the individual guaranteed by the Constitution or embodied in
the International Covenants and enforceable by courts in India.” Sections 7 and 8 <strong>of</strong>
the Tenancy Act are in breach <strong>of</strong> the Articles 13, 14, 15, 16 and 21 <strong>of</strong> the Constitution,
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