Topic: Madhu Kishwar V. State of Bihar

Madhu Kishwar V. State of Bihar
Equivalent citations: 1996 AIR 1864, 1996 SCC (5) 125 - BENCH: RAMASWAMY, K., KULDIP SINGH (J), PUNCHHI, M.M. - CITATION:  1996 AIR 1864,  1996 SCC  (5) 125, JT 1996 (4),  379      1996 SCALE  (3)640 - DATE OF JUDGMENT: 17/04/1996

J U D G M E N T Punchhi, J.

In    these    two petitions    under    Article    32 of    the Constitution, challenge is made to certain provisions of the Chota Nagpur Tenancy Act, 1908, (hereafter referred to as `the Act') which go to provide in favour of the male, succession to property in the male line, on the premise that the provisions    are discriminatory and unfair against women and therefore,    ultra vires the equality clause in    the Constitution. A    two-member Bench hearing these matters at one point of time on soliciting was conveyed the information that the State of Bihar had set up a Committee to consider the feasibility of appropriate amendments to the legislation and to    examine the matter in detail. It was later brought to its notice that the Committee ultimately had    come to the opinion that the people of the area,    who    were really concerned with    the question    of succession, were    not interested in having the law changed, and that if the law be changed or so interpreted, letting estates go into the hands of female heirs, there    would be great agitation and unrest in the    area among the    scheduled tribe people who    have custom-based living. The two-member Bench then ordered as follows:

"Scheduled tribe people are as much citizens as others and they are entitled    to the benefit of guarantees of the    Constitution. It may be that the law can provide reasonable    regulation    in the matter of    succession to    property with a    view    to maintaining cohesiveness in regard to Scheduled Tribes and    their    properties. But exclusion    from inheritance would not be appropriate. Since this aspect of    the matter has not been examined by the State of Bihar and the feasibility    of permitting inheritance and    simultaneously regulating such inheritance for the purpose of ensuring that the property does not go out    of the family by    way of transfer or otherwise we are of the view that in the peculiar facts of the case the State    of Bihar should re examine the matter. In these circumstances, instead of disposing of the two writ    petitions by a final order, we adjourn the hearing thereof for three months and direct    the State of Bihar to immediately take into consideration our order and    under take the exercise indicated    and report to the court    by way    of an affidavit and along with that a copy of the report may be furnished    by the Committee to be set up by the State of Bihar."
In pursuance thereof, the State of Bihar has furnished an affidavit to the effect that a meeting of the Bihar Tribal Consultative Council was held on 31-7-1992, presided over by    the Chief Minister and attended to by M.P.s and M.L.A.s of the tribal areas, besides various other Ministers and officers of the State, who on    deliberations    have expressed the view that they were not in favour of effecting any change in the provisions of the Act, as the land of the tribals may be alienated, which will not be in the interest of the    tribal community at present. The matter was    not closed, however, because the Council recommended that the proposal may widely be    publicized in    the tribal community and their various sub-castes may be prompted to give their opinion if they would    like any change in the existing law. It is in this    backdrop that these petitions    were placed before this three-member Bench for disposal.

We have read with    great admiration the opinion of our learned brother    K, Ramaswamy,J. prepared after deep    and tremendous research made on the conditions of the tribal societies in India, leave alone the State of Bihar, and in drawing a vivid picture of the distortions which appear in the regulation    of succession to property    in tribal societies, when    tested on the touchstone of the codified Hindu law now existing    in the form of The Hindu Succession Act, 1956 etc. It is worth-while to account some legislation on the subject. The Hindu Succession    Act governs and prescribes rules of succession applicable to a    large    majority of Indians    being    Hindus, Sikhs, Buddhists,    Jains    etc. whereunder since 1956, if not earlier, the female heir is put at    par with a male heir. Next in the line of numbers is the Shariat Law, applicable to Muslims, whereunder    the female heir has an unequal share in the inheritance, by and large half of what a male gets. Then comes    the Indian Succession Act    which applies to Christians and by and large to people not covered under the aforesaid two laws, conferring in a certain manner heirship on females as also males. Certain    chapters thereof are not made applicable to certain communities. Sub-section (2) of section 2 of    the Hindu Succession Act significantly provides that nothing contained in the Act shall apply to the members of    any Scheduled tribe within the meaning of clause (25) of Article 366 of    the Constitution, unless otherwise directed by the Central Government by    means    of a notification in    the official gazette. Section 3(2) further provides that in the Act, unless the context otherwise requires, words importing the masculine gender shall not be taken to include females. (Emphasis supplied). General    rule of legislative practice is that unless there is anything repugnant in the subject or context, words    importing the    masculine gender used in statutes are to be taken to include females. Attention be drawn to Section 13 of the General Clauses Act. But in matters of succession the general rule of plurality would have to    be applied with circumspection. The afore provision thus appears to have been inserted ex abundantl cautela. Even under Section 3 of the Indian Succession Act the State Government is empowered to exempt any    race, sect or tribe from the operation of    the Act    and the tribes of Mundas, Oraons, Santals etc. in the State of Bihar, who are included in our    concern, have been so    exempted. Thus neither    the Hindu Succession Act, nor the Indian    Succession Act,    nor even the Shariat Law is applicable to the custom governed tribals. And custom, as is well recognized,    varies    from people to people and region to region.

In face of these    divisions and visible barricades put up by the sensitive tribal people valuing their own customs, traditions and    usages, judicially enforcing on them    the principles of personal laws K applicable to others, on an elitist approach or on equality principle,    by judicial activism, is a difficult and mind-boggling effort. Brother K. Ramaswamy, J. seems    to have taken the view that Indian legislatures (and governments too)    would    not prompt themselves to    activate in    this direction    because of political reasons and in this situation, an activist Court, apolitical as it avowedly is, could get into    action    and legislate broadly on    the lines as suggested by    the petitioners in their written submissions. However, laudable, desirable and attractive the result may seem, it has happily been viewed by our learned brother that an activist court is not    fully    equipped to cope with the    details    and intricacies of    the legislative    subject and can at    best advise and focus attention on    the State polity on    the problem and shake it from its slumber, goading it to awaken, march and reach the goal. for    in whatever measure be the concern of the court,    it compulsively    needs to apply, somewhere and    at sometime, brakes to its    self-motion, described in judicial parlance    as self restraint. We agree therefore with    brother K. Ramaswamy, J. as summed up by him in the paragraph ending on page 36 of his judgment    that under the circumstances it is not desirable to declare the customs of tribal inhabitants    as offending Articles 14, 15 and 21 of the Constitution v and each case must be examined when full facts are placed before the Court.

With regard to the statutory provisions of the Act, he has proposed to the reading down of section 7 and 8 in order to preserve their constitutionality. This    approach is available from    page 36 onwards of his judgment. The words "male descendants"    wherever occurring, would include "female descendants". It is also proposed that even though the provisions    of the    Hindu Succession Act, 1956 and the Indian Succession Act, 1925 in terms would not apply to the Scheduled Tribes, their general principles composing of justice, equity    and fairplay would apply to them. On this basis it has been proposed to take    the view that    the Scheduled Tribe women would    succeed    to the estate of paternal parent, brother or husband as heirs by intestate succession and inherit the property in equal shares with the male heir with absolute rights as per the principles of Hindu Succession Act as also the Indian Succession    Act. However much we may like the    law to    be so we regret our inability to subscribe    to the means    in achieving    such objective. If this be    the route of return on the Court's entering the thichet, it is for better that the court kept out of    it. It is not far to imagine that there would follow a bee-line for similar    claims in diverse situations,    not stopping at tribal definitions, and a deafening uproar to bring other systems of law in line with the Hindu Succession Act and    the Indian Succession    Act as models. Rules of succession are    indeed susceptible of providing differential treatment, not    necessarily equal. Nonuniformities would not in all    events violate    Article 14. Judge-made amendments to provisionary over and    above    the available    legislature, should normally    be avoided. We are thus constrained to take this view, even though it may appear to be conservative, for adopting a cautious approach,    and the one proposed    our learned brother is, regretfully not acceptable to us.

The Chota Nagpur Tenancy Act was enacted in 1908. It's preamble suggests that it was a law to amend and consolidate certain enactments relating to    the law of landlord    and tenant and the settlement of    rent in Chota    Nagpur. It extends    to North Chota Nagpur and    South Chota Nagpur divisions, except areas which    have been constituted as municipalities under the Bihar and Orissa Municipality Act, 1922. Chapter II, thereof providing    classes    of tenants containing Sections 4 to 8 is reproduced hereafter: CHAPTER II Section 4:

CLASSES OF    TENANTS - There shall be, for the purposes of this Act, the following classes of    tenants, namely :
(1) tenure-holder, including under- tenure-holders, (2) raiyats, namely :
(a) occupancy-raiyats, that is to say, raiyats having a right of occupancy in the land held by them,
(b) non-occupancy    raiyats, that is to say, raiyats not having such a right of occupancy, and
(c) raiyats having khunt-Katti rights.
(3) under    raiyats, that is to say, tenants    holding,    whether immediately or immediately, under raiyats, and (4) Hundar Khunt-kattidars."
Section 5:

"MEANING    OF 'TENURE-HOLDER' - Tenure-holder means primarily a person who has acquired from the proprietors or from another tenure- holder, a    right to hold land for the purpose of collecting rents or bringing At under    cultivation by establishing tenants on    it, and includes
(a) the successors-in-interest of persons who have Acquired    such a right, and
(b) the holders of tenures entered in    any register    prepared and confirmed under the Chota Nagpur Tenures Act, 1861, but does    not include a    Mundari khuntkattidar.
Section 6:

"MEANING OF RAIYAT -(1)    'Raiyat' means primarily a person    who has acquired a right to hold land for the purpose of cultivating it by himself, or by    members    of his family, or    by hired servants, or with the    aid of partners; and includes the successors-in-interest of persons    who have acquired such a right, but does    not include a Mundari khunt-kattidar. Explanation- Where a tenant of land has the right to    bring it under cultivation, he shall be deemed to have acquired a right to hold it for the purpose    of cultivation, notwithstanding that he uses it for the purpose of    gathering the produce of it or of grazing cattle on it.
(2) A person shall not be deemed to be a raiyat unless he holds and either immediately under a proprietor or immediately under 3 tenure-holder or immediately under a mundari khunt-kattidar. (3) In determining whether a tenant is a tenure-holder or a raiyat, the court shall have regard to
(a) local custom, and
(b) the purpose for which the right of    tenancy    was originally acquired.
Section 7:

"(1) MEANING OF    'RAIYAT HAVING KHUNT-KHATTI RIGHTS' "    Raiyat having--khunt katti rights' means a raiyat in    occupation of, or having any subsisting title to, land reclaimed    from jungle    by the original founders of the village or their descendants in the male line, when such raiyat is a member of the family which founded the village or a descendant in the male line of any member of such family: Provided that    no raiyat shall be    deemed    to have khunt katti rights in    any land unless he and all his predecessors-in-title have held such    land or obtained a title thereto by    virtue    of inheritance from the original founders of the village.
(2) Nothing in    this Act shall prejudicially affect the rights of any person who    has lawfully acquired a title to a khunt kattidari    tenancy before the commencement of this Act.
Section 8:

"MEANING OF MUNDARI KHUNT-KATTIDAR 'Mundari khunt-kattidar'    means a Mundari who has acquired a right to hold jungle land for the purpose of bringing suitable    portions thereof under cultivation    by himself or by male members of his family, and includes -
3. (a) the heirs    male in the line of any such Mundari, when they are in possession of such land or have any subsisting title thereto; and
(b) as regards any portions of such land which have    remained continuously in the possession of any such    Mundari and    his descendants in the male line, such descendants.
At this place, Section 76 alongwith its illustrations would also need reproduction:

"76. SAVING OF CUSTOM - Nothing in this Act shall affect any custom, usage or customary right not inconsistent with, or not expressly or    by    necessary implication modified or abolished by, its provisions.
ILLUSTRATIONS I. A custom or usage whereby a raiyat obtains a right of occupancy as soon    as he    is admitted to occupation of the tenancy, whether he    is a    settled    raiyat    of the village or not,    is inconsistent with, and    is not    expressly or by necessary implication modified or abolished    by, the provisions of this Act.    This custom or usage, accordingly, wherever it    exists, will not be affected by this Act.
II. A custom or usage by which an under raiyat can obtain rights similar to    those of an occupancy raiyat is, similarly, not inconsistent with, and    is not expressly    or    by necessary implication modified or abolished by, the provisions of this Act, and will not be affected by this Act.
III. A custom or    usage whereby a raiyat is entitled to make improvements on his tenancy and to receive compensation therefor on ejectment is not inconsistent with, and is not expressly    or by necessary implication modified or abolished by the provisions of this Act. That custom or    usage accordingly, where    it exists, will not be affected by this Act. IV. A custom or usage    whereby korkar is held, -
(a) during preparation for cultivation, rent-free, or
(b) after preparation, at a rate of rent less than the rate payable for ordinary raiyati land in    the same village, tenure or estate, is not inconsistent with,    and is not expressly or by necessary implication modified or abolished by, the provisions of this Act. That custom or usage accordingly, wherever it exists, will    not by affected by this Act,"
A bare outline of    these provisions goes to show that these have been enacted to identify classes    of tenants. These provisions have no connection with the ownership of land. Section 3(XXVI) defines 'tenant' to mean a person who holds land under another and is, or    but for a special contract would    be. liable to pay rent for that land to that other person. Sub-section (1)    of Section 4 is plainly tied up with    Section S. Subsection (2)(d) & (b) of Section 4 is tied up    with Section 6 and sequally with Section 76. Local customs, as the illustrations under Section 76 show, are for the purpose of streamlining the tenancy rights and landlord- tenant relationship. Sub-section (2)(c) of Section 4 in the same pattern is tied up with Section 7. Lastly sub-section (4) of    Section 4 is tied up with Section 8    relating to "Mundari Khunt-kattidhar". All these tenants as classified, do not    own the    tenanted lands, but hold land under others. Their tenancy rights are identified and regulated through these provisions. The personal    laws of the tenants nowhere figure in the set up.

The solitary decided case available under section 8 of the Act and where personal law of the Mundari was allowed to intrude is Jitmohan Singh Munda v.    Ramratan Singh    and Another [1958 Bihar Journal Reports 373], There the learned Judges of the High a Court comprising the Bench seem to have differed on the applicability    of section 8 but not on its scope. The case there established was that the Mundari Khunt Kattidar deceased was of Hindu religion and on that basis it was    held that his widow could retain possession of the tenancy rights of her deceased husband during her life time. The right of the male collateral to take possession    was deferred by the intervening widow's life estate. This case could, in a sense, be taken as stare decisis, when none else is in the field, in order to take the cue that personal law of a female descendant    of a Mundari    Khunt Kattidar could steal the show and    be section 8    would have to/read accordingly. But this case is    decided on misreading of section 8. The earlier    part of it providing the meaning of Mundari Khunt Kattidar has been overlooked. It has    been assumed, on the basis of the latter part that the expression has an    inclusive definition and thus would not exclude the Mundari's widow governed by Hindu Law. The High Court at page 375 of its report observed as follows:-

"The contention based on section 8 also terminologically cannot be accepted. In the first place, in defining Khunt Kattidar interest as quoted above, the 14 word used is 'includes' whereaftar occur clauses
(a) and (b) containing reference to the male line of    a Mundari. The word includes' cannot be    taken to be exhaustive."
Jitmohan Singh's    case can not    thus be a guiding precedent. It is at best a decision on its own facts. There is no scope thus in reading down the provisions of section 8 and even that    of section 7 so as    to include female descendants alongside the male descendants in the context of section 7 and 8. It is only in the larger perspective of the Constitution can the answer to the problem be found.

Life is a precious gift of nature to a being. Right to life as a fundamental right stands enshrined in the Constitution. The right to livelihood is born of it. In Olga Tellis & Ors. v. Bombay Municipal Corporation and Others [AIR 1986 SC 180] this Court    defined it in this manner in para 32 of the report:

".............The    sweep    of the right to life conferred by Article 21 is wide and far-reaching. It does not    mean merely that life cannot be    extinguished or taken away as,    for example,    by the imposition    and execution    of the death sentence, except according to procedure established by law. That is but one aspect    of the right to life. An equally important fact of that right is    the right to livelihood because, no person can live without the means of living, that is, the means of livelihood.
If the right to livelihood is not treated as a part of    the constitutional right to life, the easiest way of depriving    a person of his right to life would be to deprive him of    his means of livelihood    to    the point of abrogation. Such deprivation would not only denude the life    of its effective    content    and meaningfulness but    it would make life impossible to live.    And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not    regarded as a part of the right    to life. That, which alone makes it possible to live, leave aside what makes life liable, must be deemed to be an integral component    of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of    the rural population    to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life    and the means of    livelihood. They have to eat to live: Only a handful can afford the    luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas J. in Baksey, (1954) 347 M.D. 442 that the right    to work is the most precious    liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to    life is a    precious freedom. "Life",    as observed by Field, J.    in Munn v. Illinois, (1877) 94    US 113,    means something more than mere animal existence and the inhibition    against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted    with approval    by this Court in Kharak Singh v. State of UP [1964(1) SCR 332].
And then in para 33:
"Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy    towards securing that the citizens, men and women equally, have the right to an adequate    means    of livelihood. Article 41, which is    another Directive    Principle, provides, inter alia, that the State shall, within the    limits of its economic capacity and development, make effective provision for    securing the right    to work in cases of unemployment and    of undeserved want. Article 37 provides that the Directive    Principles, though not enforceable by any Court, are nevertheless fundamental    in the governance    of the country. The Principles contained in Arts.39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation    of the    meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right    to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right    to life. The State may not. by affirmative action, be v compellable to provide    adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just    and fair procedure established by law, can challenge    the    deprivation as offending the right, to life conferred by Article 21."
Agriculture is not a singular vocation.    It is,    more often than not, a joint venture, mainly of    the tiller's family members.    Some of them have to work hard and the ethers harder still. Everybody, young or old, male or female, has chores allotted to perform; a share in    the burden    of toil. Traditionally and    historically,    the agricultural family is identified by the male head and this is what    Section 7 and 8 recognize. But on his death, his dependent family females, such as    his mother, widow, daughter, daughter-in-law, grand-daughter, and others joint with him have, under Section 7 and 8, to make way to a male relatives within and outside the family of the deceased entitled thereunder, disconnecting them from the land and their means of livelihood. Their right to livelihood in that instance gets affected, a right constitutionally recognized, a right which the female enjoyed in common with the last male holder of the tenancy. It is in    protection of    that right to livelihood, that the immediate female relatives of the last male tenant have the constitutional remedy to stay on holding the land so long as they remain dependent on it for earning their livelihood, for otherwise it would render them destitute.    It is    on the exhaustion of, or abandonment of land    by, such female descendants can the    males in the line of    descent take over the holding exclusively. In other words, the exclusive right of male succession conceived of in section 7 and 8 has to remain suspended animation so long as the right of livelihood of the female descendant's of the last male holder remains valid and in vogue. It is in this way only that the constitutional right to livelihood of a female can interject in the provisions. to be read as a burden to the statutory right of mala succession, entitling her to the    status of    an intervening limited dependent/descendents under section 7 and 8. In this manner alone,    and    upto    this    extent can female dependents/descendents be given some succour so that they do not become vagrant and destitutes. To this extent, it must be so held. We would rather, on the other hand, refrain from striking down the provisions as such    on the touchstone of Article 14 as this would bring about a chaos in the existing state    of law. The intervening    right    of female dependents/descendents under section 7 and 8 of the Act are carved out to this extent, by suspending the exclusive right of the male succession till the female dependent/descendent chooses other means of livelihood manifested by abandonment or release of the holding kept for the purpose.

For the afore-going reasons, disposal of    these    writ petitions is ordered with the above relief to the female dependents/descendents. At the same time direction is issued to the    State    of Bihar to comprehensively    examine    the question on the premise of our constitutional ethos and the need voiced to amend the law. It is also directed to examine the question of recommending    to the Central Government whether the later would consider it just and necessary to withdraw the exemptions given under the Hindu Succession Act and the    a Indian Succession Act at this point of time in so far as    the applicability of these    provisions to    the Scheduled Tribes in the State of Bihar is concerned. These writ petitions    would on these directions stand disposed of making absolute the interim directions in favour of the writ petitioners for their protection. No Costs.