ASSIGNMENT (10TH SEMESTER)

TRIBAL LAW

SEMINAR PAPER IV

CUSTOMARY LAWS AND GENDER EQUALITY: STRATEGIES FOR

PROMOTING EMPOWERMENT

SUBMITTED BY:- SUBMITTED TO:-

ABHISHEK NAIR MR. SATYA NARAYAN JENA

1983010 ASSISTANT PROFESSOR

BA LLB (A) KIIT SCHOOL OF LAW

1
 ABSTRACT

Gender inequality within tribal communities in India is a complex issue deeply rooted in
customary laws and patriarchal traditions. This paper examines the gender dynamics and
property inheritance systems among the Tagin tribe of Arunachal Pradesh and the Poumai tribe
of Nagaland, highlighting disparities in women's rights and opportunities. Customary laws
often favor male heirs, resulting in limited inheritance rights and economic autonomy for
women. Despite efforts by the Indian government to promote gender equality, these laws
persist, perpetuating social and economic disparities.

The study explores the societal roles assigned to men and women within these tribes,
emphasizing the unequal distribution of labor and decision-making power. Women are
primarily responsible for domestic chores and agricultural activities, yet they have little say in
community governance or property inheritance. Moreover, traditional councils are male-
dominated, further marginalizing women's voices and agency.

In response to these challenges, the paper proposes three mechanisms for promoting gender
equality within tribal communities: recognition, redistribution, and accommodation.
Recognizing and supporting women's representatives within cultural communities can amplify
their voices and facilitate dialogue on gender issues. Redistributing resources, such as
education and economic opportunities, can empower women to challenge existing hierarchies.
Additionally, offering accommodation to cultural practices while encouraging internal
dialogue can foster gradual change from within.

However, effective implementation of these mechanisms requires collaboration with traditional

community leaders to garner support and mitigate resistance. By engaging both men and
women in community development initiatives, the state can promote gender equality as a
collective goal, rather than a divisive issue. Moreover, addressing the structural barriers to
women's empowerment, such as economic limitations and social norms, is essential for
meaningful progress.

In conclusion, tackling gender inequality in tribal communities requires a multifaceted

approach that combines legal reforms, social interventions, and cultural sensitivity. By
addressing the underlying factors perpetuating inequality and empowering women within their
communities, sustainable change can be achieved.

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 INTRODUCTION

Customary law, deeply ingrained in the cultural and social fabric of societies, plays a pivotal
role in governing various aspects of life, including family, inheritance, property rights, and
dispute resolution. Passed down from generation to generation, customary laws often reflect
the traditional values and norms of a community. While these laws have their advantages, they
can also perpetuate gender inequality. Achieving gender equality within customary legal
systems is crucial for the broader goal of gender equality in society. This paper explores the
complex relationship between customary laws and gender equality, delving into the
discriminatory practices embedded within customary legal systems and the strategies necessary
to promote reform and empower women. By implementing these strategies, communities and
nations can gradually reform customary laws, promote gender equality, and empower women,
leading to more inclusive and just societies.

As there is no universally accepted definition of a customary law. It can be described as a set

of rules through which a tribe practises its culture and expresses its worldview. It is “an
established system of immemorial rules which had evolved from the way of life and natural
wants of the people, the general context of which was a matter of common knowledge, coupled
with precedents applying to special cases, which were retained in the memories of the chief
and his counsellors, their sons and their sons’ sons (sic), until forgotten, or until they became
part of the immemorial rules…” 1.

A customary law is the habitual course of conduct of a society and contains dos and don’ts
based on its norms, practices and usages, mechanisms such as taboos, sanctions, social rituals,
culture, public posture and ethics of each individual. These norms thus restrain their pattern of
behaviour and regulate the social, cultural and religious aspects of the individual and the
family. Regardless of its formal status, most tribes regulate their community and social affairs
according to the customary law and treat it as integral to their culture and basic to their identity.
As social scientist Mayne puts it, “A belief in the property of the imperative nature of a
particular course of conduct, produces as uniformity of behaviour in following it and
uniformity of behaviour in following a particular course of conduct produce a belief that it is
imperative or proper to do so, when from either cause or from both cause, a uniform and
persistent usage has mould the life and regulated the dealing of a particular class of community,

1
Shachar, Ayelet. Multicultural Jurisdictions. Cambridge University Press, 2001.

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it becomes a custom.” 2 Therefore, we can say that customary law governs a person’s marriage,
divorce, inheritance, child custody, etc as well as community relations such as rights over
forests, lands, water bodies and other natural resources. In the others words we can say that
customary law in its widest connotation is a body of rule which regulated the conduct of the
human being’s vis-à vis each other and vis-à vis the individual and society.

LITERATURE REVIEW

Gender inequality persists as a pervasive issue across various societies, with patriarchal norms
often dictating the distribution of power, resources, and opportunities between men and
women. This phenomenon is evident in many tribal communities in India, where customary
laws and traditions govern inheritance practices, economic activities, and social roles,
perpetuating disparities between genders. Despite efforts by the Indian government to promote
gender equality and protect women's rights, tribal communities continue to struggle with
deeply entrenched patriarchal systems that marginalize women and restrict their autonomy.

In the Tagin tribe of Arunachal Pradesh, patriarchal structures are deeply ingrained, with men
holding significant power and authority over women in various spheres of life. Traditional
gender roles dictate that women are primarily responsible for domestic chores and childcare,
while men engage in heavier, more strenuous tasks. Moreover, inheritance laws favor male
descendants, leaving women with limited rights to inherit property. Despite women's vital
contributions to economic activities such as agriculture and weaving, they are often relegated
to subordinate roles, reinforcing the patriarchal hierarchy within the community. Similarly, in
the Poumai tribe of Nagaland, patriarchal norms dictate social, economic, and political
dynamics, with men wielding authority over women in decision-making processes. While
women play essential roles in agricultural activities and household management, their
contributions are often undervalued, and they have limited rights to inherit property. Moreover,
traditional councils, dominated by men, exclude women from participating in governance and
decision-making, further marginalizing them within the community.

Gender inequality in succession laws exacerbates disparities between men and women in tribal
communities, denying women their rightful share of property and assets. Despite exemptions

2
Kymlicka, Will. The Rights of Minority Cultures. Oxford ; Toronto : Oxford University Press, 1995, p. 228.

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from certain legal frameworks like the Hindu Succession Act, tribal customary laws often
prioritize male heirs, perpetuating discrimination against women. As a result, women are
denied economic autonomy and financial security, reinforcing their subordinate status within
the family and community.

Efforts to address gender inequality in tribal communities require a multi-faceted approach,

encompassing legal reforms, awareness-raising, and community empowerment initiatives. The
state must recognize and support women's rights advocates within cultural communities,
providing them with platforms to amplify their voices and challenge patriarchal norms.
Additionally, practical resources such as education and economic opportunities should be
redistributed to women, empowering them to assert their rights and autonomy. Collaboration
with traditional community leaders is crucial in fostering dialogue and cooperation, ensuring
that efforts to promote gender equality are inclusive and culturally sensitive. Gender inequality
in tribal communities persists as a complex and deeply entrenched issue, rooted in patriarchal
customs and traditions. Addressing this challenge requires concerted efforts to empower
women, challenge discriminatory practices, and foster inclusive and equitable societies. By
recognizing and supporting women's rights within cultural contexts, the state can facilitate
meaningful progress towards gender equality in tribal communities, ultimately advancing the
rights and well-being of all members, regardless of gender.

CONTENTS

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SL NO TOPIC PG NO

1 CUSTOMARY LAW & 7

GENDER RELATION

2 TAGINS TRIBE OF 8
ARUNACHAL PRADESH

3 POUMAI TRIBE OF 10
NAGALAND

4 GENDER INEQUALITY IN 13
SUCCESSION LAWS OF
TRIBAL COMMUNITIES

5 CAN AMENDMENT OF 14
HINDU SUCCESSION ACT
BE APPLICABLE TO
SCHEDULED TRIBES

6 APPLICATION TO 15
CUSTOMARY LAWS

7 CONCLUSION 17

CUSTOMARY LAW & GENDER RELATION

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In today’s highly competitive modern world a revision in gender relation is a serious challenge
for both genders. There is different stereotype role of both men and women which play a vital
role in the society and need to be dealt with much attention. Even in the 21st century women
are barred from performing both in the public domain as well as in the family even for personal
good. Her free movement and mingling either with both men or women during the day or even
during the night in social groups, notwithstanding or getting certain properties during
marriages, or protections given to her by her brother’s/clan members even if the girl get divorce
and return to the family/clan members, the male supremacy overrides female liberty in almost
every spheres of life.3

In the socially construed social strata, there is a division of labour between men and women.
Men do the jobs that are considered ‘heavier’ and ‘strenuousness while women do jobs that are
considered ‘lighter and needs “fragile caring’. In the olden times, during the head hunting days,
it was the women folk who oversee both domestic and paddy fields work while men folk would
have hatched plan to attack the enemy’s village or plan how to protect that village from being
attack or they would simply go for warfare even days altogether, leaving womenfolk and
children in the village. Women are restricted in various ways by the functioning of the
customary laws. They do not have much say either in the family or in the village administration
as to voice freely with open mind when it comes to any important decision making. Women
sometimes may have better ideas and knowledge and contributed much to their male
counterpart. They are treated as inferior and occupy lower position in every sphere of life. Due
to the patriarchal systems the society inferring of women leading inferior and subordinate to
men, includes any social, political, or economic mechanism that evokes male dominance over
women. Socially, women participation and freedom of expression are limited by way of letting
them shoulder all household chores. The pattern of gender of socialization in the region has
been shaped by the deeply rooted culture of patriarchy. Gender socialization is the’ process of
socialization which teaches children their gender roles’. From the moment of child is born,
gender socialization and gender expectations come to influence the ways boys and girls are
treated. Gender socialization thus affects the ‘self-concepts of women and men, their social and
political attitudes, their perceptions about other people, and their feelings about relationships
with others’4.

3
Group governance (2022) “Gender equality and Women empowerment: Constitutional Jurisprudence”, UN
Women Publisher, published in 15 December 2022
4
Singh, K.S. (1993) “Tribal Ethnography, Customary Law and Change”, Concept Publishing Company

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 TAGINS TRIBE OF ARUNACHAL PRADESH

The Tagin is one of the major tribe of Arunachal Pradesh inhabitant in different part of Upper
Subansiri District. Tagin are well known for their warm hospitality, friendly and pure hearted
being. The traditional legal system of the Tagin is composed of following sources of Tagin
customary law. It’s legitimized form of law which is usually prevalent in tribal society. People
act according to customary law. These systems are largely ethnic in origin and usually operate
within the areas occupied by ethnic group.

Tagin is patriarchal in nature where men can have more than one or two wives. But women
aren’t allowed. The society doesn’t endorse pre-marital sexual freedom. The virginity of girl is
much valued in this community. Once bride price is paid to bride’s family, girl considered to
be the property of groom’s family. The stereotype notion of women being inferior to men still
exist as is clearly seen in the traditional idea of women being confined to domestic domain
only. Women are treated as inferior or lower to men in almost every sphere of life. Customary
laws that are set for welfare of society have biases where women are inferior or subordinated
to men. 5

Tagin women in economic activities - Traditional economy of Tagin is mainly based on

agriculture. It’s based on extensive practices of Jhum or shifting cultivation. Every members
of the community participated an equally in various agriculture activities. Tagin women play
important role in agriculture production. They perform almost numerous tasks which are
assigned to men. Clearing of jungle is done by both men and women. Activities like sowing,
weeding, harvesting, threshing and winnowing are mostly done by women. There is no hard
and fast work to differentiate the occupation of men and women. But it’s the moral and social
obligation that the female members are assigned with easy task and males are assigned with
hard works. Tagin, women usually share economic responsibilities by taking an active role in
agriculture activities. Other secondary activities such as weaving, rearing of animals and birds
are solely depended upon womenfolk.

Property inheritance system under the Customary Law - Inheritance of property right of
Tagin community isn’t governed by law which is enacted by Central or State government. It’s
fully governed by local customary law which is set by society itself. In this community women

5
Kamei Pamei, Roselima. “Customary Law and Women in North East India.” International Research Journal
of Social Sciences,2014.

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aren’t entitled to obtain any immovable like community land accept some share of mother’s
ornaments. As customary law girls aren’t given right to inherit any share or have no claim over
land property, but she can use it as long as she is survived. The mode of inheritance of property
would be discussed as below6:

1. When deceased is survived by son or daughter. Property will be inherited by son only.

2. When deceased has no son but only survived by daughter or widow. Property will go to
widow not daughter. Widow will be entitled the ownership of property till her life time. In case
of death or remarriage, property will return to descendant of death brother.

3. When woman has acquired property by purchased or gift. Her property could be offered to
daughter. But deceased is survived with no children then property will be entitled to descendant
of her husband.

Inheritance in Tagin is fully determined by local tribal customary law which is patrilineal in
nature. Most of time immovable property like land is entitled by male, not female. Society’s
structure is set up in patriarchal in nature wherein men enjoy entitled property of his ancestors.7

Tagin women & Education - In Tagin community, girl’s education isn’t given much
important because they believed that after marriage girl become the primary members of
groom’s family and all property acquired her will be enjoyed by her husband’s family. Most
of women are usually engaged with household activities and other activities lie weaving from
mother, relatives and elders of family. They are made to believe that they should look after the
parent when they are at parent’s house. And after married they are made to look after the
husband’s economics, children and domestic chores. Now government took various steps and
schemes to provide best education to both girls and boys and motivated parents to send girl
child to school. Now a day Tagin mothers are interested to provide the best education to their
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daughters in order to free from old system.

POUMAI TRIBE OF NAGALAND

6
Mahanta, A. (2002) “Human rights and Women of North East India”, Centre for Women’s Studies, Dirugarh
University, Dibrugarh
7
Fernandes Walter, Pereira Melville and Khatso Vizalenu (2005) “Customary Laws in North East India: Impact
on Women”, National Commission for women, New Delhi.
8
Raji Vijay (2019) “Social Traditions and the violation of Women’s Right in the Tagin Society of Arunachal
Pradesh”, Vol.15, Issue 02, IRA-International Journal of Management & Social Sciences.

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The Poumai Naga tribe is a major tribe and one of the oldest among Nagas. The word Poumai
is derived from two syllables “POU” and “MAI”. “POU” was the progenitor of Poumai and
“MAI” is the descendants of POU. In other words, POU is the name of the ancestor and his
descendants are known as POUMAI. 9 The literal meaning of POUMAI means “People of
Pou”. The Poumai Naga community believes in a patriarchal family system. The male
supremacy overrides female liberty in almost every spheres of life in Poumai Naga society. For
instance;

 Economically and financially their man takes the final decision of all transaction in spite
of her being the sole monitor/steward of the house.

 Politically she is instrumental to gain majority without fully recognizing her political rights
to decision making and freedom of speech and choice.

 Culturally she is considered unfortunate to spearhead and be in the fort line in any of
feasting ceremony, but in time of war they were compelled to be the ambassador of peace
for the society.

 Religiously she is compelled to disown her right to leadership and to serve. Although they
are better positioned when compare with other society.

Poumai Women in Economic Activities - The main agricultural activities were done by the
women in the fields and farming as the man was to guard of the women from the enemy. In
that raid of head hunting the head hunters do not spare women and children so as to head count.
Agriculture is an occupation as old as the society, the mainstay of the Nagas and the Poumai
society as well. Terrace paddy cultivation is the main agricultural practice, besides; the practice
is limited range of shifting cultivation. Their mode of cultivation and production is again
closely attached to forest and its resources. So the main reliant of the Nagas and the Poumai
Naga society is on land and forest, on whose bosom they depend for their livelihood. Their
economy is based on inalienable right to land and forest is preserved from waste and
destruction. Naga women have closer attachment to land more than their male counterparts as
continued to be the custodian of that vibrant Naga life and culture forming the basis of the
essential Naga identity. From the early morning till dawn women work on land with affection

9
Thohe Pou, R. B. “A Brief Introduction of Poumai Naga in Northeast India | My Perception and I.” My
Perception and I, https://www.facebook.com/WordPresscom, 13 Sept. 2009,
https://thohepou.wordpress.com/2009/09/13/brief-inbrief-introduction-on-poumai-naga-in-northeast-india/.

10
and reverence literally taking it as the mother of humanity. Women work in the terrace field
continues from seeds sowing till harvest time. Besides agricultural activities, the women also
take up the sole responsibility to collect firewood and also fetch water. 10

They spin and weave varieties of traditional hand-loom clothes for the family and also for sale
to generate income. Apart from the management of kitchen and bringing up the children which
exert tremendous stress on them they have to look after the rearing and feeding of domestic
animals. In fact, Poumai economic life will eventually crumble without women who take care
of the economy. So we have seen Naga woman playing a vital in the family, quietly rendering
great service and indirectly helping in removing poverty, fulfilling her duties ostentatiously
and handing down a healthy tradition of hard work.

Property Inheritance System under the Customary Law - The Poumai Naga law of
inheritance had entitled only to males for inherits of property. The Poumai Naga society male
has the absolute rights to inherits of immovable property however, women has the rights to
inherits of movable in the time of marriage. All the ancestral and acquired properties are shared
within the sons, while the best paddy field is given to the eldest son, he has to leave the parents’
house for the youngest brother who will remain with the parents and look after them even after
marriage.

The eldest son has the responsible of looking after his younger sibling and arranges their
marriage. In the absence of sons, it is the practice of Mao and Poumais, for the daughter to take
all land purchased by her father during his lifetime. Except for this case among the Maos man
cannot leave land in perpetuity to a daughter, and no woman can permanently inherit land of
any sort, be it terrace, jhum land, building or garden land, firewood plantation. Even the
purchase land given to the daughter may revert to her father’s heirs after her death. If there is
no male issue in the family, the property goes to the nearest male kin or relatives. In case of no
relation being found, the kindred inherit, and failing the kindred, the clan inherits.

But movable properties would be confiscated to the daughters. Man cannot leave real property
to his daughters but yet some movable property can be given as discretionary. Personal property
including cash and cattle is bequeathed to daughters absolutely. Women’s property such as
ornaments, beads, crystal and ear ornaments always goes to the daughters. Failing children, a
mother her personal property goes to her sister’s or in such case, the daughter in-laws i.e. son’s

10
Burman, J.J.Roy. 2012. Status of Tribal Women in India. Mainstream Weekly (12) 10th March.
http://www.mainstreamweekly.net/article3314.html retrieved on 10th April 2024.

11
wives have the right to distribute among themselves. However, in terms of inherited of property
women do not have the right to get immovable property but they may get only movable
property. 11

 Widow’s Right to Inherit - A widow is entitled to use her husband’s lands, house and
others properties as long she remains in her husband’s clan. On her death the property
does not pass to her heirs but it passes on to the heirs of her husband. In case of remarry
to another man than she has no rights to inherit of her first husband’s property. 12

Poumai Women in the Traditional Council - The Poumai society of every village has their
own village council like any other patriarchal society where women do not enjoy a significant
role in the decision-making process. The village administration council are always being a
male-dominated institution where the women folks were never included in the traditional
village council or known as Vesiikai/Tsiiko. Women were not even allowing to steps up in the
gossip/stone platform or village courtyard. Women has not given space in the decision making
body. On some critical issues the minutes of the meeting of the village council were never
disclosed to women. From the early age children of this region and the community had learned
what it means to be a boy or a girl. Girls have socialized early into household chores. They are
taught to cook, fetch water, carry fire-woods, wash dishes and clothes, and clean the house,
looks after their younger sibling while their mothers are way in the fields. Whereas boys are
taught them to maintenance chores such as looking after the woodland, paddy fields, cuts fire-
wood etc. Girls are expected to remain at home and look after family where they are made to
think that the domestic activities and nurturing are women’s work while boys are made to work
outside thereby depicting the “gender-stereotypical roles’. 13

The process of gender socialization continues throughout the life cycle. Right from the
childhood of a girl’s till grows up and become a married woman, her sole responsibility is the
managing the household. For instance, though a woman might be just returning from the field
it is expected that she has to prepare food and does the needed household chores. Men showed

11
Mahanta, A. (2002) “Human rights and Women of North East India”, Centre for Women’s Studies, Dirugarh
University, Dibrugarh.
12
Singh, Samarjit. “India Protects Customary Tribal Laws That Violate Equality for ST Women. Who’s
Hearing? None.” ThePrint, http://facebook.com/ThePrintIndia, 14 Mar. 2022, https://theprint.in/opinion/india-
protects-customary-tribal-laws-that-violate-equality-for-st-women-whos-hearing-none/871871/.

13
Agnes, Flavia. 2002. Minority Identity and Gender Issues, in Walter Fernandes and Sanjay Barbora (eds).
Changing Women’s Status in India: Focus on the Northeast. Guwahati: North Eastern Social Research Centre,
pp. 54-66.

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their masculinity by not interfering in any of the household chores. Man considered doing
‘household chores as a shameful thing’ as they don’t want themselves to be address as
‘henpecked husband’ by their fellow men. This negative attitude of men underlines the
patriarchal notion of men.

GENDER INEQUALITY IN SUCCESSION LAWS OF TRIBAL COMMUNITIES

In India, many tribal communities have their customs and traditions regarding the succession
of property. And unfortunately, gender inequality is often a prevalent issue in these
communities, where property is passed down through male successors, with women having
little or no rights to inherit. This inequality has led to discrimination against women, who are
denied their fair share of property and assets. Although the Indian government has introduced
laws and policies aimed at promoting gender equality and protecting women’s rights, these
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laws are not consistently implemented effectively. To address gender inequality in tribal
communities with respect to succession of property, there is a need for greater awareness and
education on women’s rights, effective implementation and enforcement of laws and policies,
and increased representation and participation of women in decision-making processes.

Scheduled Tribes were exempt from the Hindu Succession Act to preserve their customs
governing the inheritance of ancestral property. However, there are two fallacies in this line of
argument. First, the majority of tribal societies in India are patriarchal, meaning that males are
regarded as legitimate successors while women are denied inheritance rights on ancestral
property. This disparity was highlighted in the All-India Report on Agriculture Census 2021-
2215, which revealed that only 16.7 percent of ST women owned land, compared to 83.3 percent
of ST men. The justification for exempting STs under section 2(2) is antithetical to the intent
of the Act, which was enacted to remedy past discrimination against Hindu women under
Mitakshara law. Second, more than 90% of the ST population resides in rural areas, so
daughters of communities must receive the same proportion of land as male successors.16

CAN AN AMENDMENT OF HINDU SUCESSION ACT TO BE APPLICABLE TO

SCHEDULED TRIBES?

14
https://ncwapps.nic.in/pdfreports/Customary%20Law.pdf, Tribal Customary laws and woman, an
Introduction, Accessed on 20th April, 2024
15
All-India Report on Agriculture Census 2021-22
https://agcensus.nic.in/document/agcen1516/ac_1516_report_final-220221.pdf
16
Bhaduri, Dwidhiti. “LAND INHERITANCE RIGHTS OF TRIBAL WOMEN.
https://www.linkedin.com/pulse/land-inheritance-rights-tribal-women-dwidhiti-bhaduri/.

13
The Hindu Succession Act is not applicable to Scheduled Tribes, but the Court recognizes the
concept of tribal Hinduization, which determines whether a tribal is sufficiently Hinduized to
be governed by Hindu law in matters of succession or inheritance.

In the case of Kartick Oraon v. David Munzi, 17 the Court ruled that a person’s Scheduled Tribe
status for inheritance is not lost if they convert to Christianity. Regarding the status of children
born to a Native American mother and a non-Native American father, the Supreme Court ruled
in the case of Society for Protection and Enforcement of Adivasi Rights and Others v. The
18
State and Ors. that such children can be granted Scheduled Tribe status if the tribal
community to which the woman belongs recognizes the matrimonial alliance and accepts the
couple into its fold.

The Government of India, in the Eleventh Report of the Commissioner for Scheduled Castes
and Scheduled Tribes, 19 stated that religion is irrelevant when it comes to Scheduled Tribe
status, as a person continues to be considered a tribal even if they change their tribe. In
Jharkhand, there is a growing demand for a ‘Sarna Dharm Code’ that would include a separate
column labeled ‘Sarna’ under the religion category in the census. The demand for a ‘Sarna
Dharm Code’ arises from the need to recognize and respect the distinct religious identity of the
tribals in Jharkhand. The proposed ‘Sarna Dharm Code’ would involve the inclusion of a
separate column labeled ‘Sarna’ under the religion category in the census. This indicates a
desire among tribals to assert their distinct religious identity rather than being assimilated into
the Hindu religion.

The judiciary too, despite acknowledging that customary tribal laws are discriminatory
towards women, has failed to tackle this degrading practice. For instance, as evidenced in
Haradhan Murmu v. State of Jharkhand 20, the Jharkhand High court was of the view that to
bring about any significant changes with regard to the personal/customary laws of the Santhal
Tribe, it must be done keeping in mind the local context where the consequences of amending
such laws needs to be carefully considered.

]Further, in the Narasu Appa Mali’s case 21, the Bombay High Court was of the view that one
cannot interfere with the customary/personal laws of any tribal community as an individual’s

17
Kartik Oraon v. David Munzni, AIR 1964 Pat 201
18
Society For Protection & Enforcement of Adivasi Right and Another V. State and Others., (2002) AIR Jhar 17
19
NATIONAL COMMISSION FOR SCHEDULED TRIBES ELEVENTH REPORT (2015-16)
https://ncst.nic.in/content/eleventh-annual-report
20
Haradhan Murmu Alias Haradhan Hansda vs The State of Jharkhand AIR, 2017
21
Narasu Appa Mali [AIR 1952 Bom 84]

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fundamental rights aren’t applicable to tribal customary/personal laws. This is because such
laws do not come under the ambit of Article 13 of the Constitution, which states that no law
can be violative of one’s fundamental rights and if so, that law is against the basic principle of
the Indian constitution. Similarly, in Madhu Kishwar v. State of Bihar 22, the Court prohibited
the transfer of land to non-tribal individuals and insisted on protecting the land rights of the
tribals. Moreover, in cases where a tribal woman did inherit her ancestral land, she was
ineligible to alienate (transfer) the same to her children as the customary/personal laws are not
applicable to them.

APPLICATION TO CUSTOMARY LAW

There are three different mechanisms the legal system could use to encourage and support
internal dissent and challenge.

 The legal system could increase the capacity for challenge by giving women within the
cultural community recognition and social capital.
 The legal system could increase women’s capacity for challenge by redistributing
practical resources to them, such as economic power and education.
 The legal system could offer the community accommodation of its unequal cultural
practices on the condition that it adopts internal dialogic processes that provide
opportunities to challenge dominant practices.

The first two mechanisms are aimed at ensuring that women have the resources and capacity
for making challenges; the third mechanism is aimed at ensuring that they have the opportunity
to use that capacity. In implementing all three of these methods, however, it is important for
the state to enlist the cooperation of traditional community leaders as much as possible.
Otherwise, the state’s support and encouragement for the women will simply lead the rest of
their community to demonize them as a tool of the oppressive outside culture. There is probably
no way to avoid this completely, but the more that the interests and status of the traditional
leaders can be tied to the recognition and empowerment of women, the less powerful this
negative response will be.

1. Recognition - The state needs to seek out and support multiple representatives and
spokespeople for women within cultural communities, preferably long before any

22
madhu kishwar v. state of bihar, 1996 AIR 1864, 1996 SCC (5) 125, AIR 1996 SUPREME COURT 1864,
1996 (5) SCC 125

15
 specific claim seeking accommodation is raised. This can often be best achieved in the
realm of public debate and discussion, outside of the particular arena of government.
For example, mainstream news media should routinely look for representatives of
women’s groups internal to minority communities for comment on issues concerning
that community. Civil society organizations seeking input from representatives of a
particular community should do the same. And government also should seek out and
invite participation by women’s groups internal to cultural communities as part of any
consultation process.

2. Redistribution - The state needs to offer practical support to women that will increase
their power to speak up and challenge the hierarchies in their own communities. Such
support might take the form of opportunities for education, economic development, and
protection from domestic and other forms of intracommunity violence. The reason that
exit is an insufficient solution is that women often experience very substantial barriers
to exit, in the form of economic, educational, and social limitations that dramatically
raise the cost of leaving. At a minimum, the state should provide the sort of support that
reduces the impact of such limits.
The state should also try to enlist the support of traditional community leaders for
programs that provide resources to the women of the community. The goal is for these
leaders to see such programs as benefitting the community as a whole. One way to
encourage that view would be to offer the benefits (e.g., education and economic
development support) to both men and women in the community, but to increase the
amount of support based on the percentage of recipients who are women. For example,
the state might offer scholarship aid to members of a disadvantaged group, and the total
amount available for scholarships might increase as the percentage of women
participating in the scholarship program increases. 23

CONCLUSION

23
Leslie Green, Internal Minorities and Their Rights, in THE RIGHTS OF MINORITY CULTURES, supra
note 3, at 257

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In conclusion, the pervasive gender inequality entrenched within the customary laws and
societal structures of tribal communities poses a significant challenge to achieving gender
equity and justice. Across various tribes such as the Tagins of Arunachal Pradesh and the
Poumais of Nagaland, patriarchal norms continue to dominate, relegating women to inferior
positions and denying them fundamental rights in inheritance, decision-making, and social
participation. The portrayal of women as inferior beings, confined primarily to domestic roles,
is deeply ingrained in the social fabric of these communities. Despite women's vital
contributions to economic activities such as agriculture, weaving, and animal husbandry, they
are systematically denied equal rights to property ownership and decision-making. Customary
laws, steeped in patriarchal traditions, reinforce this inequality by prioritizing male heirs in
property inheritance, thereby perpetuating generations of discrimination against women.

Furthermore, the legal frameworks governing succession and inheritance in tribal communities
often fail to address the systemic discrimination faced by women. While efforts have been
made to promote gender equality through legislative measures such as the Hindu Succession
Act, the exemption of Scheduled Tribes from its purview has led to continued marginalization
of women within these communities. The failure of the judiciary to intervene effectively in
cases of discriminatory customary laws further exacerbates the plight of tribal women, denying
them the opportunity to challenge and change oppressive practices.

However, there is hope for progress through a multifaceted approach that combines
recognition, redistribution, and accommodation within the legal system. By empowering
women through education, economic support, and social capital, the state can strengthen their
capacity to challenge patriarchal norms and demand equality within their communities.
Moreover, the involvement of traditional community leaders in supporting initiatives aimed at
women's empowerment can facilitate internal dialogue and foster acceptance of gender equity
as a shared societal value.

Achieving gender equality in tribal communities necessitates collaborative efforts from various
stakeholders, including the state, civil society, traditional leaders, and community members.
By recognizing women's rights, redistributing resources, and ensuring their inclusion in
decision-making processes, these communities can progress towards a future characterized by
equity and inclusivity.

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