The most important feature of property rights is that they are ‘‘private’’: the state and its legislations cannot interfere in the exercise of these rights by private property owners. These rights extend beyond one’s lifespan, so, if one leaves a well drafted ‘‘last will and testament’’ behind, duly registered, it is the duty of the courts to stand by this document. Thus, private property holders may disinherit their sons or daughters, or even leave their fortunes to charity. Priyamvada Birla, a woman, left her fortune to a rank outsider. The idea is that ‘‘private property’’ is governed by ‘‘private law’’ made by the owners themselves (as with a will), and the ‘‘public law’’ of the state and its legislatures and courts cannot curtail this right. The Hindu Succession (Amendment) Bill, 2004 must be seen as a violation of this principle: it imposes ‘‘public law’’ on ‘‘private property’’. Of course, this does not apply to those who do not belong to Joint Hindu Families governed by Mitakshara law. This legislation shall apply only to those who follow ancient traditions in property matters like the Mitakshara or the Dayabhaga and some South Indian systems. What a true liberal and pluralist would want is that those who belong to such systems be allowed to maintain their respective traditions. By interfering in private property, ‘‘public law’’ is all set to destroy these ancient systems. Ostensibly, according to the women activists who campaigned for this legislation, daughters will stand to gain. However, the end result may well be that these traditions will die out. I believe that our women activists have been wrong footed here. A strong civil society is one wherein the scope of ‘‘private law’’ and ‘‘private property’’ is maximized. Such a society is good for daughters too. But our women activists prefer asking for more and more ‘‘public law’’, thus reducing the scope of civil society to manage its own affairs. As a liberal, I do not believe that the state should have any legal authority to interfere in private property thus. In India we do not have a uniform Hinduism. Joint families are dying out anyway. In the free market, globalised scenario that is emerging, our sons and daughters both should be encouraged and empowered to create more and more property for themselves rather than depend on a state-administered inheritance. This requires private property rights and private law governing the same. Further, we also have matriarchal and matrilineal systems in India: Is anyone crying out for their poor sons? There is another reason to respond to this legislation with just a muted cheer, for the principle enshrined — that women should have a right to property — is being flouted openly by the state, and the suffering women in this case are from the poorest ranks of society, whose parents did not have even a bit of property to leave behind. I refer to the dancing girls of Mumbai, 75,000 strong, who have been banned from doing what they like with their own bodies (which is their private property) inside the premises of a piece of private property that is the dance bar. In their latest outrage against these girls, the income tax department has arrested many of them and seized their possessions (their properties) alleging tax evasion. How can you want to tax anyone whose work you ban? Our women activists should now work for these suffering women. Getting legislation to help daughters of joint families grab ancestral properties is a lesser cause than getting the state off the backs of property-less women who have escaped patriarchy in village India to carve out a niche for themselves in our cities. Email: sauvikc@yahoo.com • Gautam Bhardwaj: We observe a large incidence of widowhood in India which is partly due to differences in life expectancy between women and men. This imposes important gender issues in pensions policy as dependent women are often primary nominees of retirement and insurance benefits. The changes in this Bill are an important step towards further safeguarding the social and economic security of dependent women and their rights to retirement benefits — especially for women in rural India. Email: gautam@iief.com
