Debayan Bhattacharya

Courts have been sharply split over whether the Hindu Code Bill applies to Scheduled Tribes that are ‘sufficiently Hinduized.’ This piece analyses such judicial decisions and argues that Section 2(2) of the Hindu Marriage Act and its cognate acts in the Hindu Code Bill completely bar their application to any Scheduled Tribes, irrespective of the degree of their “Hinduization”.

Introduction

The Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956 (“Acts” or “Hindu Code Bill”), pursuant to Sections 2(1)(c) of each, apply to anyone who is ‘not a Muslim, Christian, Parsi or Jew by religion’. Section 2(2) of these Acts, however, explicitly states that their provisions do not apply to any Scheduled Tribe (“ST”/ “Tribes”) within the meaning of Section 366(25) of the Constitution unless the Central Government explicitly directs the same.

Section 2(2) has been subject to considerable judicial disagreement in its interpretation. On one hand, some cases have considered the clause to exclude all Scheduled Tribes notified by the Government. On the other hand, other cases have held that Section 2(2) does not apply to tribes that are sufficiently ‘Hinduized’, bringing them within the domain of Hindu laws. The courts following the latter line reason that since these tribes have adopted Hindu rituals and customs, they should be subject to provisions of the Hindu Code Bill.

In the absence of an authoritative Supreme Court ruling on the question, there is a bitter split between High Courts. This piece analyses the reasoning offered by both sides, and argues that a textual interpretation of Section 2(2) of the Hindu Code Bill that precludes its applicability from STs in toto is more faithful to the text and purpose of the legislation and ensures better protection for the unique culture and practices of Scheduled Tribes.

Blanket Exclusion of all Scheduled Tribes

The first line of reasoning believes that STs can be governed by the Hindu Code Bill only if the government has notified the inclusion of such tribes in the Official Gazette. Otherwise, the language of the provision is categorical and unambiguous: Scheduled Tribes do not fall under the ambit of the Hindu Code Bill.

The leading case in support of this stance is the Supreme Court’s decision in Dr. Surajmani Stella Kujur v. Durga Charan Hansdah. The Court was assessing whether a marriage between an Oraon and Santhal could fall under Hindu law, and whether the husband could be held liable for bigamy as he had contracted a second marriage during the subsistence of the first. Even though the tribes were professing Hinduism, the Court held that in light of Section 2(2), they did not fall under the domain of Hindu law.

Surajmani Kujur was further interpreted by the Kerala High Court in Dr. Bini B. v. Jayan P.R.The Court had to decide if Section 2(2) would still apply for marriages among the Kuruma community if the marriage was contracted by Hindu rites. According to the Court, a plain reading of Section 2(2) established that STs were excluded from the HMA, and since the Kurama were STs, the Act would not apply to them. It also emphasized the importance of customs among tribal communities (¶15).

The Tripura HC’s decision in Rupa Debbarma v. Tapash Debbarma cited both these cases, holding that even though the marriage was contracted using Hindu customs and rites, a ‘plain reading’ of the provision meant that STs were excluded, especially in light of the specific and special exclusion under Section 2(2) of the HMA. Other decisions in favour of such a textual interpretation are Rajendra Kumar Singh Munda v. Smt. Mamta Devi, Butaki Bai and Others v. Sukhbati and Others, and Mohan Lal Meena v. Sheela Meena.

Inclusion of ‘Hinduized’ Tribes Under the Hindu Code Bill

Other judgements reject this textualist interpretation. They argue that Section 2(2) applies only insofar as it deals with tribes that have distinct and unique cultural practices and require their protection. If these communities are Hinduized i.e. they have voluntarily adopted Hindu rites and customs, then excluding them from the ambit of Hindu law is unjustifiable.

The authority for this view is a Supreme Court decision. In Labishwar Manjhi v. Pran Manjhi, the Court was tasked to determine whether a matter of succession between Santhals would be decided by Hindu law or their customary law. The Court held that it had been empirically proven that Santhals were sufficiently Hinduized, and if that were the case, they could no longer enjoy the benefit of Section 2(2) of the Hindu Succession Act.

A similar decision was made by the Gauhati HC in Anom Apang v. Geeta Singh. The other notable decision supporting this stance is Satprakash Meena v. Alka Meena. Acknowledging this conflict between these two lines of cases, the Court held that since the marriage had been contracted in accordance with Hindu customs, it was leaning in favour of the Supreme Court’s decision in Labishwar Manjhi. Moreover, it argued that formal structures provided for more safeguards and free trial guarantees than community-based structures. It distinguished Surajmuni Kujur on the grounds that the case primarily dealt with bigamy and the non-establishment of custom. Moreover, the Court further said that if custom was not established, then Surajmuni Kujur itself stands for the proposition that the HMA should apply.

Towards A Textual Interpretation of Section 2(2)

The legal dispute boils down to whether the provision should be interpreted textually or otherwise. In this particular dispute, a textual understanding seems the most appropriate. This can be justified for a number of reasons.

First, note the clarity of the language. Section 2(2) clearly states that “nothing contained in this Act…shall apply to members of any Scheduled Tribe”. This language is clear and unambiguous. More importantly, however, the provision also has an exception: The Central Government can issue a notification in the Official Gazette to bring an ST under the ambit of the Act. Thus, the provision has one clear, textually indicated exception. Considering this alongside the clear language of the provision, it can be inferred that the provision has blanket application with only one conceived exception and must be applied textually.

Second, the purpose and objective of the Hindu Code Bill points toward the need to protect the unique customs and cultures of STs. The dominance of Hinduism has meant that several groups have drifted towards Hindu customs and rituals. This is salient in light of the fact that these are some of the most disadvantaged groups in the country. The primary opposition to the textualist interpretation is premised on the idea that the exception u/s 2(2) only sought to protect their unique cultural traditions, which cease to exist when they are ‘Hinduized.’ Since these communities have themselves voluntarily adopted Hindu customs, there is no cultural belief that must necessarily be protected. Thus, the exception must not apply to groups that have been ‘sufficiently’ Hinduized.

However, this assumption is untrue for two reasons.

First, note that tribes that are supposedly ‘integrated’ still retain several distinctive cultural practices. Generally, the transformation of tribes does not lead to integration, since they retain indigenous features like language and do not find a fixed place in the religion. Integration can never occur in a meaningful sense. Moreover, tribal identity is a cultural identity that is unaffected by a change in religion. If a Malayali Hindu converts to Christianity, then they would remain a Malayali. Thus, there is no proof that meaningful integration happens even if Hinduization occurs. This undermines the primary opposition to a textual interpretation since these tribes still do retain their unique identity.

Second, the recognition of Hinduization uniquely undermines the independent cultural identity of Scheduled Tribes. Even though definitions are tribal, the renaissance of Scheduled Tribes has been definitively documented. STs are now using their identities in order to reassert their unique cultural identity and retain a sense of autonomy. If courts legitimise the Hinduisation of tribes, then this will be a severe blow to the unique identity of the STs. Note how this also opposes the objective of this legislation: the legislative intent was clearly to ensure that the unique cultural institutions of Scheduled Tribes could be protected in recognition of their vulnerable position. Subverting this legislative intent cannot be a legitimate interpretation adopted by Courts.

Analysing Labishwar Manjhi and Satprakash Meena

While it can be concluded that the textual approach is the legally correct one on the basis of the above discussion, there is still a need to address the judicial decisions. The final discussion in this piece will revolve around two important decisions: Labishwar Manjhi and Satprakash Meena.

First, the decision in Labishwar Manjhi does not contain any reasoning. It is a short judgement that assumes that the Hinduization of tribes has to be considered without any reference to authority. Thus, it seems to be an instance of judicial overreach that has not been justified. It can be inferred that the Supreme Court was operating on the assumption that since these tribes had become Hinduized, there was no need to exclude the application of Hindu law anymore. We have already noted how this assumption is untrue and how tribes still retain distinctive cultural features that render them district from the law’s conception of Hindu. Thus, the decision in Labishwar Manjhi cannot withstand scrutiny.

Second, the decision in Satprakash Meena is faulty on multiple fronts. It tries to distinguish Surajmani Kujur by arguing that the latter case primarily dealt with bigamy. While this is correct, it ignores the fact that the Court in Surajmani Kujur specifically discussed Section 2(2) of the HMA and that this was also part of the ratio decidendi.

Surajmani Kujur dealt with whether the husband could be convicted under Section 494 of the Indian Penal Code. Section 494 states that it only applies ‘in any case in which such marriage is void.’ Thus, Section 494 would only apply if bigamy was void in the system of law it had been carried out under. This could be proven in two ways: that the marriage was carried out under Hindu law and bigamy is prohibited in Hindu law, or that the marriage was carried out under customary law and custom prohibited bigamy. The Court concluded that Section 494 of the IPC was not attracted in the present case. To do so, it had to conclude that neither of the two above situations was present. It concluded that Section 2(2) of the HMA did not apply since both parties were tribes and that a custom proving bigamy was prohibited had not been proved. It must be emphasized that both of these were necessary conditions for the Court’s decision. Hence, an attempt to distinguish it is fallacious.

Finally, the Court tries to frame a policy argument for the decision. However, this is merely a value-based justification disguised as a policy consideration. This value judgement of the Court is not backed by any evidence nor is it a clear matter of fact that the Court presents it to be. Essentially, the Court in Satprakash Meena asserts that formal structures of the judiciary are preferable to custom-based systems. It is unclear why this is true. Customary institutions have been operating for thousands of years, have well-developed systems of dispute settlement, and are not always biased. In fact, they are far more accessible, convenient, and cheap for individuals as opposed to the adversarial, slow, and expensive formal justice system. Crucially, the Court does not provide any empirical data to support its argument. Scholars are deeply divided over whether formal institutions are actually better than customary forums. Similarly, the Court in Labishwar Manjhi states that the Hindu Succession Act ensures better property rights for women than customary law. This claim is unsupported by facts, since scholars like Flavia Agnes have shown that local customs of succession like Stridhan were far more progressive than the unified Hindu succession laws that supplanted them.[1] Moreover, cruelty is also recognized as a legitimate reason to divorce in customary law frameworks.

Therefore, there is no uniform consensus among scholars as to whether codified Hindu law is truly better than customary law when it comes to the position of women. Given this lack of clarity of facts, Courts should default to the clear legislative intent behind the Acts i.e. the protection of unique tribal customs and traditions from erosion under Hinduism.

Conclusion

While the legal issue is complex, it is clear that a textual interpretation of the provision has to be preferred. This is not only because the provision is unusually clear and unambiguous, but also because the contrarian view is mistaken about the nature of the sociological phenomenon it asserts. Unique figments of a tribe’s culture still exist, and they must still be protected by the law. By bringing even marginally ‘Hinduized’ tribes into the fold of Hindu law, the erasure of tribal cultural values is accelerated, running plainly contrary to both the text and objective of the Hindu Code Bill. This is further exacerbated by the fact that Courts do not apply a consistent test when analysing when a tribe is ‘Hinduized’. On this basis, Courts should reject precedents that run contrary to a textual application of Section 2(2) of the Hindu Code Bill.

The author is a 3rd year law student at National Law University, Delhi.

[1] Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India (OUP 2001) 47-52, 69, 207.