Much like those of women of any other country, the property rights of Indian women have evolved out of a continuing struggle between the status quo and the progressive forces. And pretty much like the property rights of women elsewhere, property rights of Indian women to are unequal and unfair: while they have come a long way ahead in the last century, Indian women still continue to get fewer rights in property than the men, both in terms of quality and quantity.
What may be slightly different about the property rights of Indian women is that, along with many other personal rights, in the matter of property rights to the Indian women are highly divided within themselves. Home to diverse religions, to date, India has failed to bring in a uniform civil code. Ironically, what unifies them is the fact that cutting across all those divisions, the property rights of the Indian women are immune from Constitutional protection; the various property rights could be, as they indeed are in several ways, discriminatory and arbitrary, notwithstanding the Constitutional guarantee of equality and fairness.
Indian Constitution: Framework of Equality, formal and substantive, through affirmative action, positive discrimination
Indian Constitution has a substantially elaborate framework to ensure equality amongst its citizens. It not only guarantees equality to all persons, under Article 14 as a fundamental right but also expands on this in the subsequent Articles, to make room for affirmative action and positive discrimination.
Article 14 of the Constitution of India states that: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” In practice, this guarantee has been read to infer ‘substantial’ equality as opposed to ‘formal’ equality, as judicially explained and elaborated upon in several judgments of the Supreme Court of India as well as the Indian High Courts. This broad paradigm itself permits the creation of affirmative action by way of special laws creating rights and positive discrimination by way of reservations in favour of weaker classes of society.
This view is strengthened by Article 15 of the Constitution, which goes on to specifically lay down prohibition of discrimination on any arbitrary ground, including the ground of sex, as also the parameters of affirmative action and positive discrimination.
Firstly, women are one of the identified sections that are vulnerable to discrimination and hence expressly protected from any manifestation or form of discrimination. Secondly, going a step further, women are also entitled to special protection or special rights through legislation, if needed, towards making up for the historical and social disadvantage suffered by them only on the grounds of sex.
However, notwithstanding the repeated and strong Constitutional guarantees of equality to women, the property rights of Indian women are far from gender-just even today, though many inequalities have been ironed out in courts. Below are some of the highlights of the property rights of Indian women, interspersed with some landmark judgments which have contributed to making them less gender unjust.
It is clear from the foregoing that though the property rights of Indian women have grown better with the advance of time, they are far from totally equal and fair. There is much that remains in Indian women’s property rights, that can be struck down as unconstitutional.
The response of the judiciary has been ambivalent. On one hand, the Supreme Court of India has in a number of cases held that personal laws of parties are not susceptible to fundamental rights under the Constitution and therefore they cannot be challenged
Apart from the ongoing struggle for a uniform civil code in accordance with the Constitutional framework, today the India women are fighting for rights in marital property, denied uniformly to them across all religious boundaries. There is also a significant movement in some of the hill states, towards community ownership of land by women by creating group titles and promoting group production and management of land and natural resources by landless women for joint cultivation or related farm activity. Land rights would be linked directly to the residence and working on land under this approach being lobbied for under the Beijing Platform for Action. However, the challenges are many: social acceptance of women’s rights in property leads them. In a country where women continue to be property themselves the road ahead promises to be long and bumpy.