India’s Hindu Succession Act Amendment

B. India’s Hindu Succession Act Amendment

Although India’s constitution provides for equality before the law, inheritance pat- terns remained severely gender- biased. 1 Intestate Hindu Succession was, from 1956, governed by the Hindu Succession Act HSA which, following the main mitakshara Hindu law tradition Bloom et al. 1991, distinguishes individual property from joint ancestral assets that include land Agarwal 1994. 2 While the former can be bequeathed at will, rights to the latter are limited to a group, called the coparcenary that includes only male members of a dynasty. In line with these provisions, females’ ability to inherit land was severely constrained and they rarely, if ever, inherited any land. 3 To eliminate the gender inequality inherent in this practice, a number of states amended the 1956 HSA by passing substantively similar amendments commonly refereed as the Hindu Succession Act Amendment or HSAA that stipulated that the daughter of a coparcener will acquire coparcenery rights by birth. 4 Specifi cally, the Act was amended by Andhra Pradesh in 1986, Tamil Nadu in 1989, Maharashtra in 1994 and Kar- nataka in 1994. 5 The change in the entitlements introduced by the HSAA not only makes daughters’ status equal to that of sons but, by the very defi nition of coparceners, also implies that her share in joint family property cannot be willed away by her father. The HSAA thus constitutes an interesting natural experiment that allows us to explore whether changes in inheritance legislation can improve women’s access to physical and 1. The 1956 HSA marked an advance in terms of establishing females’ right to inherit but failed to make females coparceners who acquire notional shares in joint family property, to be realized upon death. This implies that, upon intestate death of a Hindu head of household, each male coparcener fi rst receives his share of the joint family property, a process followed by the distribution of the deceased person’s notional share of joint property among all male and female heirs, normally in equal shares. To illustrate, letting m be the number of male coparceners and f the number of additional females, intestate succession of a Hindu head of household would have each of the former receive a share of [1 m + 1 + 1 m + 1 m + f ] whereas each of the latter will receive only 1 m + 1 m + f with the difference being the coparcener share. 2. The other main school, Dayabhaga, prevails in Bengal and Assam According to Roy 2009, the most im- portant distinction between these two schools was in terms of their classifi cation of property. The Mitakshara system made a distinction between “joint family property” and “separate property.” Joint family property consisted principally of ancestral property that is, property inherited from the father, paternal grandfather or paternal great- grandfather, plus any property that was jointly acquired or was acquired separately but merged into the joint property, while separate property included that which was self- acquired if acquired without detriment to the ancestral estate and any property inherited from persons other than his father, paternal grandfather, or paternal great- grandfather. Under Mitakshara, three generations of male members became joint heirs or coparceners to the joint family property by birth while women had no such rights. The Dayabhaga system, on the other hand, treated all property as separate property, and does not recognize a coparcenary right to property. 3. To keep things simple and for purposes of clarity, we limit our discussion below to the case of intestate inheritance. This is justifi ed on the one hand by the fact that in rural India formal wills are very rare. More importantly, as discussed below, the key innovation of the Hindu Succession Act amendment is to make females coparceners by birth, implying that their share cannot be willed away. Field studies suggest that more than 65 percent of people in India die every year without making wills, and this proportion is much higher in rural areas, suggesting the enormous importance and applicability of succession acts to govern inheritances for individuals Agarwal 1994. 4. Inheritances, being a concurrent topic in India, both the central and the state governments have the right to amend the laws concerning it. 5. Kerala took measures in 1976 to abolish the joint family property system altogether in favor of an arrange- ment where all family members hold separate shares Agarwal 1994. human capital. This has indeed attracted research interest. A recent study assesses the amendment’s impact on female empowerment, proxied by self- reported indicators of social and economic autonomy using data from the National Family Health Survey Roy 2009. While similar in spirit, our approach differs in three important ways. First, we use various types of intergenerational asset transfers as the relevant outcome vari- ables rather than subjective perceptions that are less likely to suffer from measure- ment error or respondent bias and also allow for multiple checks on the robustness of results. 6 Second we are able to explicitly explore mechanisms that may drive observed results, distinguishing in particular between resource transfers at time of marriage and those related to inheritance. Finally, we are able to also assess the effects on subsequent generations in terms of children’s education and pose questions for future research. For legislation in this area to have an impact, those affected must be aware of content and implications of the law and compliance must provide benefi ts that are larger than the cost of enforcement efforts. At the same time, substitution effects need to be ruled out so that it is the spirit of the law, rather than just its letter that is complied, for ex- ample, by increasing the amount of physical capital transferred upon inheritance while at the same time decreasing human capital. Concerns about limited or even adverse effects of legal changes in inheritance legislation are reinforced by studies suggesting that, in some countries, gender- positive legislation failed to become effective—or even resulted in unintended negative impacts—as females were either unable to enforce compliance or positive impacts of such change were outweighed by countervailing ac- tions in other areas World Bank 2001. This is mirrored by evidence from India where a range of progressive legislation, aiming to modify undesirable social practices such as dowry or caste discrimination, were either ineffective or even had adverse impacts on intended benefi ciaries. The direction and magnitude of impacts from legislative changes are thus an empirical issue. In addition to being of interest from a research per- spective, the issue is of policy relevance for India and beyond. In India, the nationwide extension of the HSAA’s main provisions in 2005 implies that a better understanding of its impact in the states that changed the provisions earlier can help inform the policy debate. At a global level, legal provisions for inheritance continue to discriminate against females and evidence on the impact of relevant reforms in India could provide insights concerning the priority to be accorded to amending these provisions.

III. Data and Estimation Strategy