Equal treatment of women in inheritance

Business Standard, 21 September 2020

The lack of agency of women in India is a moral and ethical problem. It is also a lost opportunity for economic progress. There are numerous mechanisms at work, including the working of the Indian state, which hold women back. One element of the problem is the treatment of self-acquired property of women in the Hindu Succession Act. The present law is immoral, and raises concerns about constitutionality. Addressing this is one of the many tangible actions through which gender relations in India can be improved.

In all countries, women are less engaged than men in the labour force owing to the constraints of child care. But the numerical values that we see in India are out of line. As an example, in August 2020, just 8% of the women of the age group 16-64 were working. In urban India, 6.6% of women in this age group were working. A casual glance at public places in India shows few women. We are doing worse than countries in the region such as Bangladesh.

We should aspire to do better. By any reasonable yardstick, the women's employment rate needs to go up by 40 percentage points, to 48%. This would still be 16 percentage points below the employment rate for men, and it would be much below China's level. But if this were achieved, the Indian workforce would enlarge by 50%, and if other aspects of the economy grew commensurately, then GDP would enlarge by 50%. We are talking about very large impacts here: A 50% expansion of GDP takes us from $2.5 trillion per year to $3.75 trillion per year. If this one change (women's employment rate to change from 8% to 48%) could be achieved over a 10 year period, this alone would contribute 4% a year of GDP growth.

Gender equality is often seen as a moral problem, or the concern of some activists. These calculations show that it should be front and centre in economic policy strategy. Everyone who cares about high GDP growth in India should prioritise women's agency. We must keep our eyes on the big idea (getting women's employment from 8 to 48 per cent) and make progress on a large number of tangible actions. These actions pertain to issues such as labour law, safety of women, property rights of women, etc., all of which will add up to women as first class members of Indian society.

Consider one example, Om Prakash v. Radhacharan [(2009) 15 SCC 66]. The case involved a dispute over Naryani Devi's property after her death. Narayani's husband had died 3 months after their marriage in 1955. The husband's family drove Narayani out of her matrimonial home, immediately after his death, and she returned to her parents' home. Her parents provided her with an education, after which she got a job and built up her savings. She died in 1996 without writing a will. Her mother and her brothers-in-law got into a dispute over the inheritance of her property.

The Supreme Court ruled that in this situation, the heirs of the pre-deceased husband (i.e. the brothers-in-law) get the property. So the people who had thrown Narayani Devi out of their house in 1955 ended up with the wealth that she built up in the following 41 years. The laws governing intestate succession favour the male lineage and the women's married family more than the woman's family. This would not have happened if Narayani were a man, or if she were Christian, Parsi, Jewish, Muslim, or if she was a resident of the state of Goa.

Devendra Damle et. al, who are researchers at NIPFP, have an important article, Gender discrimination in devolution of property under Hindu Succession Act, 1956, which deciphers how this state of affairs came about and how to solve it.

Their analysis shows the legal flaws in the present arrangements. They raise concerns about the extent to which the present law conflicts with the equal treatment and non-discrimination concepts of the Constitution. The present law gives Hindu women an inferior treatment when compared with women of other religions. It is violative of India's international commitments on discrimination against women.

Under Article 15(1), the Indian state cannot enact laws which discriminate between Indian citizens solely on the basis of religion, caste, sex, and place of birth. In a landmark case, Mamta Dinesh Vakil vs Bansi Wadhwa (2012), the Bombay High Court stated that different schemes of devolution for men and women constitute discrimination solely on the basis of sex, and violate Article 15(1). However, it referred the question to a larger bench, which has so far not been constituted.

Differential treatment by gender in matters of inheritance/succession has been removed in one country after another. Examples of this include France (1804), Netherlands (late 1800s), Sri Lanka (1894), Germany (1905), England (1925), Thailand (1925), Brazil (1988), etc. Even within India, we see sound treatment in the Indian Succession Act and in Goa. It is time for India to catch up with these reformers.

Perhaps the drafters of the Hindu Succession Act did not envisage a world where women could work and acquire property. But there are now many women in India who have incomes and property. Political thinking in India in recent decades has evolved towards more enlightened ways. In 2005, the Hindu Succession Act was amended to give better rights to daughters. On 11 August 2020, the Supreme Court ruled that the 2005 amendment was applicable to women born before the amendment.

When the Indian state gives equal treatment to women on property rights, this will change the incentives of women to work. This is one element of the changes required in society and in the state, to get the required change of 40 percentage points of the women's employment rate.

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