Updated: Mar 7
India, despite being the world’s largest democracy and having a plethora of laws granting liberty, still remains a pragmatically divided and relatively backward nation state. Important rights, which are equivalent to the set human rights standard in developed nations, like the effective right to religious freedom remain a difficult task to implement on the ground for millions of Indian citizens. The colonial era caste disabilities removal law was the only legislation, in the post-independence era also, which effectively upheld and protected the rights of the set of people wanting to exercise religious freedom in India. Post its recent repeal, there looms a dark cloud of uncertainty over these rights. This paper seeks to briefly analyse and trace the need and impact of the legislation towards the relevant groups, through a holistic perspective. It also attempts at analysing relevant judicial decisions and discusses the need for legislative reform. The relevance of the legislation towards the protection of caste rejects is also examined.
The Caste Disabilities Law and the Current Position
The Caste Disabilities Removal Act, 1850 was a legislation passed in pre-independence India by the British government. The main objective of the Act was to limit the effect of personal religious laws or other related laws on the rights of the people who were converts, apostates or people who had been expelled from a caste. This act became the driving force for providing egalitarian rights to those set of people, especially in matters of inheritance to property. An obvious rationale for the need to enact such a legislation was the primary need to legally protect the interests of the converts, apostates and those who had been expelled from the caste system. In a vast and densely populated land like India, which has a plethora of caste groups and religions, such laws had pragmatic implications for a sizeable number of people. This has also been seen by various scholars as an attempt to boost the penetration of Christianity in the subcontinent by the East India Company, which, till now had taken an explicitly neutral stand on such issues.
If we examine the legal structure prior to the legislation and try to shed more light on the problems which existed for the people trying to exercise religious freedom under the classical strict laws of inheritance applicable under Hindu and Muslim law at that time, there existed two major roadblocks: deprivation of conjugal life and exclusion from ancestral property. The Act significantly solved the latter part of the problem.
The Act was repealed, recently, in early 2018 by the Central government of India as a part of a larger drive to remove laws which they considered old and obsolete. The act was in force till then and remained the principal law protecting the legal rights and interests of converts and apostates.
The Interplay with Hindu Law
The Hindu Succession Act gives a wide definition to a Hindu under Section 2 of the Act and also includes and applies to people who have, expressly, by public announcement abandoned the religion, till they formally convert to a different religion of their choice. This is mainly due to the parochial religion-based application of the legal system. It enforces and functions in such a manner that a person cannot be left without a religion effectively.
The personal inheritance rights of the Hindus specifically are protected and regulated by the Hindu Succession Act, 1956. It is mandated under the law that the heir must also be a Hindu, not just the intestate. If the beneficiary is of different faiths, under the Hindu Succession Act and according to classical Hindu Law, he or she cannot inherit the property of the Hindu relative. According to Hindu law, a person excommunicated or one converting to another religion or a person who is no longer Hindu, loses the right to inherit and claim the property of his Hindu relatives. For instance, if a son has converted completely to a different faith, he will forfeit the right to retain or claim the property of his father. The enactment of the Caste Disabilities Removal Act changed this general Hindu law in effect, which was strictly enforced.
Therefore, through the act, the fundamental concept and the classically strict rules of Hindu inheritance which are based on similarity of faith between the beneficiary and the intestate, were wholly altered in pragmatic terms. Although, it must be noted that the impact was limited to only the protection of the legal rights of the converts and not his descendants after his act of conversion. It also must be noted that the act did not affect or alter the pre-existing Hindu law of inheritance directly in any manner. The convert or affected person under the act gains the rights of inheritance to a Hindu intestate, regardless of his faith, not because Hindu law permits it but because the Caste Disabilities Removal Act, 1850 offers statutory legal safeguards.
The Interplay with Muslim Law
Islam classically bases itself upon various fundamental principles, it is important to draw attention to two of them at this juncture: first, the messenger of the Prophet (Risalat) and second, the unity with God (Wahdaniet). Muslims who don’t conform to these fundamentals are deemed as infidel (Kafir) and not Muslim. Another fundamental rule of succession in Muslim law is the requirement of similarity of religion between the intestate and the beneficiary. A person who is not a Muslim simply cannot inherit the property of a Muslim. Apostates or converts fall within the category of people who are deemed to break the strict cardinal rules of Islam and are excluded from the protection of Islamic law.
The Al Sirajiyyah, classically, demarcates four valid grounds of exclusion of all Muslims to inheritance: (1) Slavery (2) Homicide (3) Difference of religion and (4) Difference of allegiance. It must be noted that the third bar is of relevance to us in this research paper and it still exists in practice in Muslim law. The Caste Disabilities Removal Act, 1850 acted as the only force to create a statutory protectionist barrier from the negative impacts of such a rule of inheritance on apostates and converts from Islam.
It is essential for us to also establish that the right to effective religious freedom has formed a core part of the human rights discourse since the early 19th century and has been recognized as a human right in most major nations. The Universal Declaration of Human Rights, which is one of the most seminal human rights instruments in the international law framework, specifically recognises and protects the effective right to religious freedom in Article 18. Such an effective right to religious freedom also includes protection from any discrimination or inequality based on the exercise of religious freedom by the individual.
The Caste Disabilities Removal Act 1850, § 1. This act was a principled nation-wide extension of regulation VII, section 9 of the Bengal Code by the British government in India. Marc Galanter, ‘Caste Disabilities and Indian Federalism’ (1961) 3(2) JILI, 210; Vasudha Dhagamwar, ‘Freedom of Religion’ (2003) 38(20) EPW, 1996. Gauri Vishwanathan, After Colonialism (Princeton University Press, 1995) 184-208; Marc Galanter, The Religious Aspects of Caste (Princeton University Press, 1966) 288. The Repealing and Amending (Second) Act 2017, the first schedule. The Hindu Succession Act 1956, § 2. John Mayne and Vijender Kumar, Mayne’s Treatise on Hindu Law & Usage (17th edn, Bharat Law House 2014) In re Jnenendranath Ray’s Goods, (1921) ILR 49 Cal 1069; Commissioner of Income Tax v. Pratap Chand, AIR 1959 Punj 415. The Hindu Succession Act 1956. John Mayne and Vijender Kumar, Mayne’s Treatise on Hindu Law & Usage (17th edn, Bharat Law House 2014) (91).  John Mayne and Vijender Kumar, Mayne’s Treatise on Hindu Law & Usage (17th edn, Bharat Law House 2014). The Caste Disabilities Removal Act 1850, § 1. Dinshaw Mulla and Iqbal Khan, Principles of Mahomedan Law (21st edn, LexisNexis 2017). Dinshaw Mulla and Iqbal Khan, Principles of Mahomedan Law (21st edn, LexisNexis 2017). Dinshaw Mulla and Iqbal Khan, Principles of Mahomedan Law (21st edn, LexisNexis 2017). Sirāj Sajāwandī and others, Al Sirajiyyah: the Mahommedan law of Inheritance (5th edn. Premier Book House 1977) 23. Dinshaw Mulla and Iqbal Khan, Principles of Mahomedan Law (21st edn, LexisNexis 2017). The Universal Declaration of Human Rights 1948, article 18.
Title Image Source: Centre for Law and Policy Research
This article has been written by Karundeep Singh. Karundeep is a final year law student at NLSIU.
This is a part of blog series , second part shall be released within a week.