Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (33 page)

C. The Process of National Reform

Women’s organizations grew rapidly, and various other institutions and individuals oriented to women’s rights acquired greater policy influence through the 1980s and the 1990s; they advocated national legislation to advance women’s inheritance rights. Based on the NCW’s recommendation that daughters be made coparceners in joint property, the Department of Women and Child Development urged other state governments to consider the adoption of the reforms initially introduced in Andhra Pradesh. This led the Law Commission to consider national legislation along these lines, inasmuch as succession is under the concurrent jurisdiction of the national government and the state governments.
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The Law Commission engaged in public consultation much as the Hindu Law Committee had in the 1940s, but approached a group more favorable to women’s rights, composed predominantly of lawyers, civil society leaders, and academics. A definite majority of its respondents favored reforms even more extensive than those adopted earlier in Kerala—the dissolution of
Mitakshara
coparcenaries, the denial of testamentary rights over a half or a third of all forms of property, the invalidation of land tenure laws that discriminate against women, and the extension of equal rights to daughters in the ancestral home.
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The Law Commission was divided in its approach and this was reflected in its report, which was far more radical in its analysis of the problems with the existing laws than in its recommendations.
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Although it noted that the reforms in Andhra Pradesh discriminated against daughters married before their passage, and that the Supreme Court had ruled against married daughters being denied benefits which unmarried daughters could get (in
Savita Samvedi v. Union of India
(1985), which concerned retirement benefits), the commission recommended that
Mitakshara
coparcenaries be retained and that only daughters who were not married before the legislation be made coparceners, as had been done in Andhra Pradesh. It justified the retention of joint property with the inaccurate claim that the dissolution of such property in Kerala had given daughters no shares in such property; it grounded the exclusion of daughters married before the reform from coparcener status in claims that parents were likely to have given substantial wedding gifts to these daughters, but not to those married after the reform, in view of the latter having been made coparceners. While acknowledging that testamentary rights were often used to limit women’s property control, the report did not recommend their restriction. It suggested only one step that would have empowered women more than had been done in Andhra Pradesh—giving daughters the same rights as sons to partition and live in the ancestral home—and accepted only a minor feature of the Kerala legislation—the abandonment of the “doctrine of pious obligation” that required sons to repay debts that their fathers had accumulated and perform their
pinda
in return for coparcenary membership. The Law Commission’s recommendations were out of tune with its assessment that the
Mitakshara
coparcenary needed radical reform.
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The Law Ministry based the bill it presented to parliament in December 2004 entirely on the Law Commission’s recommendations.
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However, various civil-society groups contributed to significant changes in this bill before parliament passed it in August 2005. The eventual legislation increased women’s shares in family property and promoted the bilateral devolution of such property more than the initial proposals did, unlike the pattern in the 1950s when the initial proposals regarding succession were scaled down in the face of resistance. The major changes made in the bill were the inclusion of married daughters as coparceners, the prioritization of the HSA’s rules over state-specific land tenure laws, the extension of rights to daughters equal to those of sons to partition and live in the ancestral home, the entitlement of remarried widows to shares in the property of their husbands and their husbands’ families, and the entitlement of women’s heirs to inherit property that the women had themselves inherited.

Certain developments helped make reform more extensive. Political elites resisted women’s rights less and attached less value to patrilineal property transmission than their forebears had in the 1950s. Moreover, the multiparty United Progressive Alliance (UPA) that ruled India then was open to enhancing certain civil and economic rights, it included parties (the CPI-M and the Communist Party of India) that vigorously promoted these changes, and the women’s organizations affiliated with these parties (the All India Democratic Women’s Association [AIDWA] and the National Federation of Indian Women [NFIW] respectively) specifically advocated women’s inheritance rights. Finally, civil society organizations mobilized to shape the legislation, networked effectively with crucial political elites, and presented their proposals as both compatible with indigenous traditions and the stability of the family; and conducive to gender equity, human development, and the alignment of personal law with constitutional rights and transnational human rights standards. Particular political elites and bureaucrats expressed misgivings about certain civil society proposals in public consultations and behind the scenes, and prevented the dissolution of coparcenaries, the restriction of testamentary rights, and the protection of the inheritance shares of widows and mothers. This in turn contained resistance.

After the bill was presented to the Rajya Sabha in December 2004, the Human Rights Law Network and the Housing and Land Rights Network
launched a campaign to amend the bill, and gained the support of various women’s organizations, other rights organizations, and organizations focused on livelihood concerns and land reform. Bina Agarwal used her extensive knowledge of succession law and gendered agrarian laws and practices to direct some of these efforts.
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Forty-seven organizations, of which the AIWC was by far the oldest and largest, agreed in January 2005 on a memorandum outlining the changes they sought—the abolition of coparcenaries, the application of the amended HSA rules to agricultural land, the denial of testamentary rights over half or a third of a person’s property, and the invalidation of deeds women sign under duress relinquishing their inheritance entitlements—and sent it to all parliamentarians and Sonia Gandhi, the President of the Congress Party and the UPA’s Convenor.
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Five other organizations, including the AIDWA and the NFIW, sent the same elites a memorandum that differed from the first only in demanding the invalidation of wills that discriminate against female kin rather than the restriction of testamentary rights.
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The Indian government invited these organizations to present their recommendations to the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, which considered the bill.

The discussions of this committee, continued civil society lobbying, and the interventions of the Law Commission, the Law Ministry, and Sonia Gandhi gave the legislation its final shape. In an account enriched by the author’s role in the process, Agarwal attributed the inclusion of more provisions favorable to women to support from members of the UPA, the concerted efforts of rights organizations, the choice of these organizations to frame their arguments in terms of social rights and livelihood concerns, the lack of attention of conservatives to the implications of applying the HSA to land inheritance, and the speed with which the bill was altered, which gave opponents little time to plot resistance.
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She believed that these circumstances counteracted two unfavorable conditions—the increased representation of agrarian groups since the 1960s, and the persistence of social norms contrary to women’s property rights, particularly in agricultural land. Agarwal did not attend to two other relevant factors—the lower importance that many political elites, including those from agrarian groups, gave patrilineal inheritance than they had before the 1960s (which became evident during policy discussions), and
the manner in which key lobbyists (including her) framed their proposals as compatible with indigenous traditions.

Various Parliamentary Standing Committee members with differing attitudes about women’s rights felt that the legislation should be compatible with Hindu and Indian traditions regarding the joint family. Justice N. Y. Hanumanthappa and S. K. Kaarvendhan of the Congress Party argued that Hindu joint family traditions required the retention of coparcenaries and the doctrine of pious obligation, and were incompatible with making married daughters coparceners. Moreover, they felt the application of national inheritance legislation to land tenure would infringe excessively on state government autonomy. The Law Ministry supported their preferences by arguing that the dissolution of joint property had given daughters no property in Kerala, and that making married daughters coparceners would lead their in-laws to cause family tensions by pressing these women to claim their new entitlements.
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Many wished to increase women’s inheritance rights while continuing to recognize the joint family as a primary social unit. They included E. M. Sudarsana Natchiappan, the Chair of the Parliamentary Standing Committee whose support women’s rights activists considered important to their success, Radhakant Nayak, and P. C. Alexander of the Congress Party, in which policy preferences varied as they had in the 1950s. Natchiappan indicated that the

joint family . . . is a unique feature of the Indian society. It does have its own negative aspects, but, at the same time, it is a redeeming feature of the Indian culture, which has been in existence for thousands of years and is still continuing. We might not be in a position to think of discontinuing the joint family system, but, at the same time, we want to give equal rights to women.

He accepted the connections seen in Hindu traditions between property inheritance, the continuity of the family, spirituality, and ritual obligations, but felt justified in including daughters as coparceners if they assumed the traditional obligations that accompanied this status. Natchiappan pointed out that dowry and wedding gifts did not justify the exclusion of married daughters, since dowry was illegal and wedding gifts were usually far less valuable than
potential inheritance shares, and that the prioritization of the HSA’s rules over state land tenure laws was not contrary to constitutional federalism. He did not wish legislation to hasten family nuclearization, and preferred to retain coparcenaries for this reason, while making daughters, and perhaps widows too, equal members of coparcenaries.
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His acceptance of certain premises of conservative committee members, especially his preference to retain coparcenaries, helped him contain opposition to reform and shape crucial features of the committee’s report.

The civil society representatives who testified before the committee systematically countered objections to their proposals, and the committee drew on some of their arguments. Bina Agarwal argued (a) that increasing women’s property entitlements would promote family stability by dissuading men from leaving their wives, reduce domestic violence, and improve the quality of life of children (claims supported by studies of the effects of women’s property control and the earlier state-level reforms), (b) that the dissolution of joint property would not affect the viability of the joint family, (c) that it was crucial to entitle women to agricultural land because men were shifting to nonagrarian occupations more than women were, and (d) that as testamentary rights were transplants from British law, a restriction of these rights would return to indigenous traditions to strengthen women’s entitlements.
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She indicated that the inadvertent reduction of widow’s shares in joint property in the process of increasing the rights of daughters was contrary to
Mitakshara
traditions, which prioritized widows’ claims over those of daughters, and that daughters would consider it a privilege to perform their parents’
pinda
and assume other obligations that accompany coparcener status. The AIDWA representatives, Kirti Singh and Subhashini Ali, added that if dissolving coparcenaries had not given daughters property in Kerala, or would not do so if it were applied to groups in which female kin did not have rights in ancestral property earlier, female kin could be specifically given an equal share of joint property when it was decomposed. They also demanded that state agrarian legislation be required to give daughters and wives the same rights as sons.

The CPI-M’s representative on the committee, V. Radhakrishnan, alone supported the dissolution of joint property, and legislators from this party (
Susmita Bauri and C. S. Sujatha) pressed this demand in parliamentary debates over the revised bill. However, since this approach was contrary to the concern of most committee members—including many proponents of daughters’ inheritance rights—to continue to recognize the joint family as a property-owning entity, the committee’s report did not endorse it.
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However, the proposal to restrict testamentary rights, which had as much potential effect on the shares of female kin in family property, faced no resistance insofar as it was seen to support Hindu traditions linking family identity to inheritance. Indeed, Ram Jethmalani of the BJP (who was the Law Minister from 1998 to 2000) welcomed this proposal, as well as one to give the HSA priority over state agrarian laws. However, other BJP legislators voiced concerns about these proposals.
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Based on these deliberations, the committee recommended (a) that married daughters be made coparceners or otherwise given shares in family property, (b) that the succession rights of cognates be brought on a par with those of agnates, (c) that female kin be given equal rights in the ancestral home, (d) that the HSA be given priority over state land legislation, and (e) that the inheritance rights of widows should not change if they remarried. It framed these recommendations as ways to recognize the joint family as a unique, enduring, and widely valued Indian institution, while remolding it so that it would not be patriarchal and patrilineal. The committee found further justification for making daughters coparceners in evidence that they often performed
pinda
in Bengal. It also suggested that the government explore ways to protect widows’ inheritance shares and restrict testamentary rights, while leaving these measures to the government’s discretion.
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