[nukkad] Lamenting the state of women and the men ....

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A misery is not to be measured from the nature of the evil, but from the 
temper of the sufferer. -Joseph Addison, essayist and poet (1672-1719)
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Dr. Gupta asked me: You have raised a query. The query is not clear. Please
rephrase 
it so that I may understand the query and then try to answer it.
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Dr. Gupta, it was not really a query. I was just expressing my concern that
Parliament institutionalized discriminatory traditions into statute and even
courts did not find it ultra vires the Constitution. Constitutional rights
are of course subject to several limitations and some such limitation may
have saved HSA from being struck down. But that does not absolve the
Parliament's refusal to do justice to women while passing law. 

Though it was not a query, let me explain why wrote what I wrote in my
earlier mail.

The context was Ravi's query on the traditional inheritance laws of Hindus.

In my last two mails I had tried to explain what little I know about it. In
the context of those explanations, I wondered why the Parliament passed a
law containing provisions discriminatory to women. Hindu Succession Act did
retain most of the discriminatory clauses of the Mitakshara system. Perhaps
I may have to explain it in more detail:

1. Mitakshara School of inheritance deprived women of any inheritance
rights. They were entitled for right to maintenance for life only. All male
members born in the family irrespective of age had a share but no women had
right to share. Properties devolved on survivorship basis. One can
understand that in the absence of Law, tradition will prevail.
2. When a modern day parliament passes a law, it is expected that it will do
away with discriminatory traditions. Hindu succession Act laid down rules of
inheritance for Hindus. For HUF, the Act retained many of the provisions of
the mitakshara school. The only tinkering the Act did was to introduce the
concept of 'notional partition' and include the widow (or mother?) in
certain circumstances as entitled to a share of the Joint family property.
Daughters of the coparcener were still not eligible for a share of the joint
family property and but were made eligible for a share in the share
allocated to her father on his death.  Thus there is a wide disparity
between the share entitlement of a son and a daughter. The parliament
legitimized it in the form of law. 
3. Some states had recognized this discrimination and attempted correction.
Kerala totally abolished the traditional school. So it is clear that the
discrimination is allowed to continue by Government of India in spite of
awareness about it. 
4. Not only that. Ambedkar had proposed a comprehensive Hindu Code Bill in
1947 which did not find favour with Congress. That bill had removed the
discriminatory provisions of the traditional schools. Sane recommendations
of the Rau Committee on HCB was rejected. Thus, even before HSA was enacted,
the discrimination against women in Mitakshara school was highlighted. 
5. Shah Bano was not the first case where religious groups bullied Congress
successfully. First was Congress failure to enact a Uniform Civil Code.
Instead, it settled for consolidation of Hindu laws only. Even in that
Congress succumbed to pressure in preserving male bastions of HUFs. 
5. Abolition of Traditional schools does not necessarily involve violent
reactions. Abolition of it in Kerala in 1976 hardly created a ripple. 
6. I had read that Law Commission had recommended in  2000 for amending HSA
to remove the discrimination against women. Nothing happened. 
7. In passing the HSA with its discriminatory provisions, the Parliament
violated the principle of equality and prohibition of discrimination on the
ground of sex etc. May be it did not violate the constitutional rights
because such rights are subject to several riders. But the principle stands
violated even if constitutional rights are not legally violated. 

That is what confounded me.

V.K.Venugopal




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