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An unlikely common strand of 2020 — land and property rights

piece was originally published in the Hindustan Times, on 24 December, 2020.

The year 2020 drew sharp focus to land and property rights issues in India. The year began with protests against the National Register of Citizens (NRC), which — if implemented — would have relied on citizens having their land records in place to prove citizenship. Many commentators lamented how landless migrant labour would meet these stringent requirements in a country where land records management is in an abysmal shape with limited digitisation.

With the onset of the pandemic, and India going into an unprecedented lockdown, the shocking sight of migrant labourers walking the highways for days exposed the lack of inclusive housing in our cities. They were forced to leave cities not only due to the lack of affordable housing, but also because informal rent agreements enabled abrupt evictions. While many developed countries enforced rent moratoriums and protections against evictions, in India, authorities could not create such a safety net. Informal tenancy in urban and semi-urban India and landlessness in rural India plunged the most vulnerable populations into further despair.

Migrant labourers were forced to leave cities not only due to the lack of affordable housing, but also because informal rent agreements enabled abrupt evictions.

Lockdowns across the world also forced businesses to consider diversification of their supply chains. This turned the attention of policymakers to the ease of doing business to make India an attractive destination for companies looking to invest in new locations. Again, land reforms became a central part of this conversation. While the central government explored the idea of creating land banks, some states focused on structural reforms. Karnataka amended laws to remove restrictions on buying and selling of agricultural land by non-agriculturalists.

Other developments that brought focus to property rights include the SVAMITVA (Survey of villages and mapping with improvised technology in village areas) scheme launched in April 2020. The scheme aims to survey non-agricultural inhabited land in rural India. The stated goals are connecting rural Indians with institutional credit through better property records, and empowering Panchayati Raj institutions through property tax collection.

In October 2020, in response to the migrant crisis, the Ministry of Housing and Urban Affairs announced the Affordable Rental Housing Complexes (ARHCs) Scheme. The scheme aims to fill the affordable housing gap in cities by utilising government-funded vacant houses along with construction, operation and maintenance of new affordable housing projects by private players.

In an unrelated development, the Supreme Court passed a landmark judgement; it ruled that daughters have equal coparcenary rights in Hindu Undivided Family properties, even if the father died before the enactment of the 2005 Hindu Succession (Amendment) Act. Gender activists celebrated the judgment as this ambiguity had presented a big hurdle for women across India in accessing their property rights.

Though these developments seem disparate, it is worth noting that land and property rights dominated people’s lives and public narrative even in an extraordinary year such as 2020. The year highlighted the fault lines in our land governance and exacerbated the effect of existing inefficiencies in our system. As we look to kickstart recovery in 2021, one hopes that policymakers will retain focus on making land records services citizen-friendly, undertaking surveys of previously unsurveyed areas, improving land markets and continuing to invest in affordable housing in our urban centres.

Though these developments seem disparate, it is worth noting that land and property rights dominated people’s lives and public narrative even in an extraordinary year such as 2020.

Presently, there are interesting policy proposals under discussion to achieve these goals. Apart from ARHC and SVAMTIVA that may be scaled up, a Model Tenancy Act aimed at bridging the trust deficit between tenants and landlords is under consideration. The Centre and states are mulling subsidies in stamp duty rates to boost the real estate market and property registration. Telangana and Andhra Pradesh are making huge investments in new surveys and technology to improve land governance.

A continued focus on land and property rights is important — these cross-cutting issues not only impact the growth of India’s economy but play an important role in the lives of all Indians. Among other things, 2020 has also been a stark reminder that governments must prioritise securing land and property rights for all its citizens.

 

Aparajita Bharti is founding partner and Bindushree D is policy associate at The Quantum Hub, a public policy research and advocacy firm.

 

Property Rights: A Conversation Whose Time Is Now

This article was originally published on LiveLaw on 24 July 2020, and can be viewed here.

As multitudes of migrant workers took to the streets to walk hundreds of kilometres away from India’s cities, even as the COVID-lockdown had compelled everyone else to stay in their homes, it inevitably brought to fore the scale of the housing crises[1]  [2] which plagues some of the major cities and towns in India. In response, the government announced a slew of measures including the affordable rental housing scheme[3], while a few state governments turned their attention to land reforms[4] [5], specifically in the agriculture sector.  With the pandemic-induced lockdown having emboldened the fault lines of socio-economic inequality in our country, the conversation about the need for secure property rights to address the vulnerabilities of slum dwellers, migrant labourers, marginalized women and young girls, tribal communities among others, became all the more urgent.

When we talk about property rights, we don’t just talk about the right to own a piece of land or live in a house. The conversation about property rights is instead a complex mesh of narratives weaved around socio-economic, geographic, legal and cultural lines, all of which play a critical role in determining who has the access to land and to what extent.

The benefits of secure property rights are, therefore, manifold. Owning a house or a piece of land not just offers physical security, but the proof of address further makes the owner visible in government records and makes them eligible to open a bank account, send their children to school, access financial credit and other welfare benefits. Over the years, several studies have also shown that a secure land tenure leads to better educational and health outcomes for the household. According to an RBI report, over 70% of an Indian household’s assets are held in land and housing[6], yet households struggle to leverage this asset and gain maximum economic benefit. An oft heard complaint is the lack of clear land titles in India, and there is a growing clamour for “conclusive” land titles. Yet it is important to understand that the basic foundations of the land administration need to be strong before “conclusive” land titles can be established. The myriad issues cut across socio-economic dynamics within communities, weak land administration and governance frameworks, and judicial bottlenecks among other factors. However, this is an important journey the country needs to undertake, and there is no better time to start than now.

Navigating the (lack of) data
What gets measured, gets done. Yet the first element that strikes anyone looking to better understand the state of land and property rights in India is the lack of reliable and consistent data. This becomes especially critical when we look at vulnerable groups, such as women and minority communities. There are very few national level surveys that captures gender-disaggregated information on land and property rights, which includes the Agriculture Census (which says that 14% of agricultural land holders are women, operating 12% of total agricultural land), and the National Family Health Survey (NHFS). However, while these surveys measure gender-disaggregated property ownership data, it has several gaps, such as it does not provide insights into ownership among older family members or percentage of female landowners to all landowners, etc. [7]

Women and land

Figure 1 – Chart showing data on women’s property ownershipGiven that land laws are a state subject, there is significant variation in the nature of rights guaranteed to women. In certain north-western states, the succession laws explicitly prefer male descendants over females, and grants restricted land rights to women, wherein they lose their claim to the property when she remarries.

In several states including Punjab, Haryana and Himachal Pradesh, till date, the law has explicit provisions deterring women from inheriting agricultural land[8], and their names are not included in land records. Owing to this and other patriarchal biases in traditional practices, a large population of women have been excluded from owning agricultural land.

Landless labourers

Figure 2 – Map showing incidence of tenancyThe Agricultural Census of 2015 estimates that even though 73.2% of rural women workers are engaged in agriculture, they own only 12.8% of all land holdings[9]. According to the 2011 Socio-Economic and Caste Census, the incidence of landlessness is the highest among Dalits or scheduled caste, which suggests that around 45 per cent of SCs are both landless and derive a major part of income from manual casual labour. The 2011 Census also records that nearly 70% of Dalit farmers work as labourers on farms owned by other[10]. These landless agricultural labourers remain invisible in the government welfare records and are unable to gain from the benefits and concessions provided by the government to land-owning farmers. The situation for landless labourers is further worsened by the lack of recognition for tenant farmers as per the legal framework in most states, owing to which we have very poor visibility on the extent of agricultural tenancy in the country. The National Sample Survey Office estimates that at least 13% of all farmers lease in land[11], but the actual figures could be much higher due to informal tenancy arrangements (refer figure 2).

Scheduled Tribes and Forest Rights

Figure 3 – Property ownership among marginalized communitiesLand ownership is also poor among Adivasis, with reports stating that millions of Adivasis across India are still awaiting access to land rights which they are entitled to under the Forest Rights Act, 2006[12]. The monthly progress report for June 2020 made available by the Ministry of Tribal Affairs state that a total of 4.2 million claims filed, only 1.9 million individual forest rights titles and over 76,000 community titles have been distributed. As per the data made available by NSSO, the proportion of Adivasi households that did not own any land went up from 16 percent in 1987-88 to 24 percent in 2011-12[13].

Judicial and social burden of land conflicts
In the Indian courts, land disputes occupy the largest set of cases. One of our every four cases heard by the Supreme Court involves conflict over land, whereas nearly 2 out of every 3 civil case is related to land or property dispute. Land disputes are also often the most commonly cited motive for other forms of crimes, including murder. According to the National Crime Records Bureau’s 2017 report, in the states of Uttar Pradesh and Bihar (states with the most murder cases), of all recorded cases of murder, 7.2% and 33.5% of cases respectively were due to land and property related disputes.

The rampant incidences of land disputes have been contributed by conflicting laws and inadequate policies (a study by Centre for Policy Research has mapped over 1000 land laws in the country, some of which are conflicting[14]) as well as poor administrative practices, and other social factors.

Affordable housing in urban India
Panning the lens to urban India, the nature of problems when it comes to property rights varies significantly, with affordable housing being one of the key issues. According to the 2011 Census, nearly 35 million households (out of the 192 million surveyed households) reportedly live in temporary housing[15]. Rapid urbanization and the lack of supply in providing affordable housing has resulted in the expansion of slums in Indian cities, with nearly 33-47% of the urban population living in informal housing, which includes slums and other unauthorised settlements[16]. The expansion of slums not only affects urban planning, but it adds to the woes of the slum dwellers who live in fear of forced eviction and have poor access to basic services such as sanitation, water, electricity, secure and safe housing among others, with their vulnerability magnified during public health crises and other disasters such as the COVID-19 pandemic.

Furthermore, slum dwellers also experience poor social upward mobility, as a lack of proper identification and address leaves them out of the government welfare databases and restricts their ability to seek bank loans or credits. Even the government’s flagship affordable housing programme, the Pradhan Mantri Awas Yojana requires the beneficiaries to have land ownership to be able to access benefits and upgrade their house. Slums are also automatically ruled out of this scheme, as it only recognizes owners of houses which are larger than 21sqm as the target beneficiaries. Secure property rights for slum dwellers are not just essential for better social indicators for the community at large, but it is also a valuable source of revenue for the administrative authorities. It is estimated that updated databases of slums and informal settlements can lead to increase in municipal property tax revenues as they have significant property transactions, which is otherwise lost revenue for the city and grounds for increased risk to its residents.

Land Rights for a Billion
The issues that deter the access to property rights are myriad and complex in any country, let alone in one as socio-culturally and politically diverse as India. However, even as the scale of the challenges may seem daunting, there’s also much to pin our hopes on in this conversation to secure land rights for a billion, and certain conversations around property rights in the country has emerged as the silver lining even under the dark cloud of the pandemic this year. For instance, the dialogue around land reforms was refuelled, the call for strengthening the affordable rental housing market reinforced, and the country also saw some innovative schemes such as the SVAMITVA scheme which aims to provide record of property ownership to inhabitants of abadi areas. The Indian government also announced its intention to role out a Model Tenancy Act, which is posited to reduce tenant-landlord conflicts in the leasing and renting of residential properties. Furthermore, in an encouraging development for women’s property rights, the Supreme Court also upheld the Hindu Succession Amendment Act, 2005, granting coparcenary rights to daughters.

Knowing who have been denied access to property rights and the consequences of such a denial is an important step towards achieving healthier socio-economic indicators. With land being a finite asset, better governance and administration of property rights is required to ensure secure property rights for all. However, to find solutions to the numerous challenges which have been crippling secure property rights in our country, there’s a need for a collaborative ecosystem of funders, researchers and policymakers among others to come together and drive interdisciplinary research and produce evidence-based solutions which is attuned to India’s socio-economic realities.

(Sneha Pillai is the Communications and Advocacy Lead at The Quantum Hub Consulting, a Delhi-based policy and communications consulting firm.)

[1] Jain, V., Chennuri, S., & Karamchandani, A. (2016). Informal Housing, Inadequate Property Rights. Mumbai: FSG. Retrieved from https://citiesalliance.org/sites/default/files/Informal%20Housing,%20Inadequate%20Property%20Rights.pdf

[2] 2011 Census data. Retrieved from https://censusindia.gov.in/2011census/hlo/Data_sheet/J&K/Figures_glance.pdf

[3] https://www.hindustantimes.com/india-news/cabinet-approves-rental-housing-scheme-for-migrants-govt-to-spend-rs-600-crore/story-Waf7MhRD7Lq8t74oNmcC6J.html

[4] https://economictimes.indiatimes.com/news/politics-and-nation/karnataka-assembly-passes-amendment-to-land-reforms-act-makes-it-easy-to-buy-farm-land/articleshow/78336440.cms

[5] https://www.deccanchronicle.com/nation/current-affairs/100920/telangana-cm-introduces-landmark-land-reforms-legislation-in-assembly.html

[6] Report of the Household Finance Committee, Reserve Bank of India, July 2017. Retrieved from: https://rbidocs.rbi.org.in/rdocs/PublicationReport/Pdfs/HFCRA28D0415E2144A009112DD314ECF5C07.PDF

[7] Agarwal, B., Anthwal, R. and Malvika, M. (2020). Which women own land in India?

Between divergent data sets, measures and laws. GDI Working Paper 2020-043.

Manchester: The University of Manchester

[8] https://www.indialegallive.com/cover-story-articles/il-feature-news/no-womens-land/

[9] Agricultural Census 2015. Retrieved from http://krishi.maharashtra.gov.in/Site/Upload/Pdf/Agriculture%20Census%202015-2016%20Final%20for%20website_part3_pages36-60.pdf

[10] 2011 Census data. Retrieved from https://www.censusindia.gov.in/2011census/B-series/B_7.html

[11] https://www.indiaspend.com/land-reforms-have-failed-formalising-tenancy-only-option-to-address-farm-distress-62357/

[12] https://www.downtoearth.org.in/coverage/forests/how-government-is-subverting-forest-rights-act-2187

[13] http://ras.org.in/scheduled_tribe_households

[14] https://www.cnbctv18.com/legal/hundreds-of-indian-land-laws-cause-confusion-conflict-researchers-2640041.htm

[15] 2011 Census data. Retrieved from https://censusindia.gov.in/Census_And_You/housing.aspx

[16] Jain, V., Chennuri, S., & Karamchandani, A. (2016). Informal Housing, Inadequate Property Rights. Mumbai: FSG. Retrieved from https://citiesalliance.org/sites/default/files/Informal%20Housing,%20Inadequate%20Property%20Rights.pdf

#Charcha2020 Blog Series: #LandPower – Empowering Dalits through Land

Continue reading #Charcha2020 Blog Series: #LandPower – Empowering Dalits through Land

Securing property and land rights in India

This article was originally published on India Development Review on 24 July 2020, and can be viewed here.

Land governance and property rights have been historically overlooked in India, and reforming them is critical to securing high growth.

 

Secure property rights are fundamental to the economic and social development of any country. However, in India, we are faced with a curious conundrum where more than 70 percent of a household’s assets are held in land and housing, yet there is insufficient data and research on people’s property rights. On one hand, the government aspires to provide 18-20 million affordable housing units in urban areas, while on the other, more than 10 million housing units are lying vacant, as per the 2011 Census. The judicial pendency of land disputes is also high, with several million cases pending in Indian courts. Approximately 25 percent of all cases decided by the Supreme Court involve land disputes, of which 30 percent concern disputes relating to land acquisition. 

All these factors, combined, result in insecure tenure for a large population, especially the poor and vulnerable, which in turn poses a complex set of challenges for effective governance. It also impacts the efficiency of our judicial system and our ability to attract investments. According to the ‘Ease of Doing Business Rankings’, India ranks 156th on the metric of ‘Ease of registration of property’—in contrast with its overall rank of 63 in the 2020 index. With the current rate of population growth and increasing competition for finite resources such as land, it is important to draw policy attention to these issues.

 

Land governance and property rights have been largely overlooked in India.

 

Despite the severity and complexity of this issue, land governance and property rights have been largely overlooked within policy research and development initiatives in India. The reasons for this are many, ranging from historical to political. Historically, the bulk of the colonial government’s revenues came from taxing agricultural produce. Over time, as this revenue declined, the focus on rural land administration reduced. As our cities grew in an unplanned manner, we did not invest in building strong land administration systems. On a political level, land and housing are very valuable assets, which, when regulated poorly, attract corruption and violence.

In addition, land and housing often have deep emotional relevance for people, and access to these are, in some cases, dictated by old beliefs and traditional customs. For instance, patriarchal norms often hinder women from owning properties, even though studies have shown that when women own properties, families show better indicators of health, nutrition, and education. Similarly, when marginalised groups own land, they have better food security and gain increased respect from the local communities. However, these require shaking up some deep-rooted social norms, which can be very challenging for both nonprofits and donors.

While India has undertaken reforms in many sectors of the economy, land and labour—the core factors of production—have not seen reforms. For decades, we have witnessed the effect of broken land administration in our daily lives. With reportedly as much as 66 percent of all civil cases pertaining to property disputes, it wouldn’t be a stretch to say that every Indian family has faced a property dispute. The COVID-19 pandemic has borne testament to some of these issues as well, as we see the scale of the impact it has had on people living in informal settlements, where issues of poor sanitation and housing are fuelled by lack of tenure security. It is quite evident that a bulk of our current social and economic challenges are centred around the lack of secure access to land and housing rights.

 

Reforming the land rights regime is critical for India to secure high growth.

 

The fundamental building block to define and secure land rights for anyone, is the underlying property record. This record should accurately reflect all pertinent information, including ownership, the geo-coordinated location and boundaries of the property, any mortgage claims, tenant claims, and disputes. Improving the accuracy of land records, including maps, should be the topmost priority. It is the basic infrastructure required for secure access to land and housing rights, and would bring in more confidence in land-related transactions, reduce conflict, encourage more investments, and also improve the government’s ability to deliver welfare schemes.

India also needs reforms in other critical land governance areas. We have progressive laws, such as the Forest Rights Act, 2006, which need to be implemented on the ground to ensure that more than 100 million people belonging to Scheduled Tribes are able to secure the patta (or land title) to their land and gain access to all welfare benefits that have not been made available to them till date. Organisations, such as ARCH Vahini in Gujarat, that work towards helping communities secure land pattas have observed significant improvements in agriculture production and incomes. We need more nonprofits working in Adivasi communities to help families apply for pattas, which will have multifold benefits in reducing poverty in these areas.

 

Ooty landscape with houses on the side of a hill-land rights

In India, although more than 70 percent of a household’s assets are held in land and housing, there is insufficient data and research on people’s property rights. | Picture courtesy: Pixabay

Land leasing is the third area where we need policy reforms. Given the small landholdings in India, millions of farmers lease additional land to enhance their farm output. However, these contracts are largely informal, and farmers with informal leases do not get access to any government benefits such as agriculture credit, PM KISAN, crop insurance, fertiliser subsidy, or Minimum Support Price procurement. A few states, including Uttar Pradesh, have recently amended their land leasing laws to allow tenancy to be formalised, thereby securing the rights of tenant farmers. Implementing these changes on the ground will require concerted efforts from civil society and government officials, as it requires changing decades-old practices.

Attention to reform in hitherto poorly focused areas, such as land and labour, will be critical for India to resume a high-growth journey. As we grapple with an economic slowdown due to COVID-19, the recently launched NCAER Land Record Services Index (N-LRSI) offers a step towards changing this. The N-LRSI is the first piece of research that carries out an in-depth analysis of land records in India. The index assesses the current status of digitisation, identifies the existing gaps in each state, and can help under-performing states implement specific remedial actions. 

The report finds that in 28 states and union territories, digitisation stands at 86.3 percent. However, it also reveals considerable accessibility issues, such as changes in administrative units and mismatch of names/spellings, language and translation issues, and other user interface problems. We clearly have a long way to go, and the N-LRSI could become a bellwether of improved land governance in India.

 

Technology can be leveraged to secure property rights.

 

Technology, especially geospatial technology, can also significantly drive change on the ground. Drones are perhaps the most exciting new entrants in this spectrum, as they offer great potential for innovation. Recently, the Odisha state government used drones to map close to two lakh households across the state. The whole exercise was completed in a matter of a few months, which by traditional methods would have taken several years. Moreover, the drone imagery brought in transparency to the whole process and allowed the communities to engage with the maps to identify their own homes and community boundaries. This greatly helped in reducing information asymmetry and building trust. Nonprofits such as PRADAN have also employed geospatial tools to map land and help Adivasi families claim their patta.

While there is no doubt that technology can be a force for good, it is also important to acknowledge its limitations in social impact and transformation.

The Government of India also recognises the importance of using technology, as seen from the Prime Minister’s recent announcement of the Swamitva scheme, which aims to map rural inhabited lands using drones and issue property cards to those living in abadi areas (inhabited rural land) without a record of rights.

While there is no doubt that technology can be a force for good, it is also important to acknowledge its limitations in social impact and transformation. Technology is not a silver bullet, and needs to be complemented by non-tech solutions, if we want sustainable impact. Therefore, the focus needs to be on responsible technology, that is used in close engagement with a range of actors, from businesses, to governments, to civil society. 

 

Donors should pay more attention to the issue of property rights.

 

Land and property rights are often viewed as a very political issue, which may discourage donors from investing in research in this area. Cognisant of this research gap, we, at Omidyar Network India, have invested in supporting the Property Rights Research Consortium (PRRC) to create evidence-based solutions, without political biases. 

We also believe that there is an opportunity for donors working on WASH, agriculture, and gender issues to include secure land tenure as a key component in their programmes. For example, a programme working to improve farmer income enhancement would need to identify and support tenant farmers to make it truly inclusive, and could include a component to identify tenants and help them formalise the tenancy agreement and access government benefits. Similarly, gender programmes can also try to include women’s names in the property documents, since research shows that it reduces instances of domestic violence and increases women’s confidence and agency. WASH programmes in urban slum communities also require access to land for sanitation  infrastructure. Ahmedabad’s Slum Networking Programme, which started in the late 1990s, demonstrated that providing secure tenure to communities can transform the sanitation and health conditions in informal settlements by leveraging government resources as well as community funds.

Recently, Ashif Shaikh, founder of Jan Sahas, aptly described land as a horizontal, cross-cutting issue across interventions. Evidence shows that that developing programmes that address the land use challenges of target communities are able to significantly boost the overall impact of the programme on the lives of families for a sustained period. Therefore, it is time that we start taking concrete steps towards securing land and property rights in India. 

 

 

Shreya Deb leads Omidyar Network’s investments in property rights in India where her interests are in supporting scalable models that can help provide more secure land and housing rights to economically vulnerable people, including in urban slums.  Before joining Omidyar Network in 2011, Shreya spent four years at The Boston Consulting Group. Shreya has an MBA from the Indian Institute of Management, Ahmedabad and a BTech in electrical engineering from the Indian Institute of Technology, Bombay.

 

Podcast: The Unfinished Journey of Women’s Property Rights

What do property rights mean for women in India in 2020? How can we think about women’s property rights, the legal context and the cultural challenges to women owning property in India?

 

Shipra Deo and Devendra Damle spoke to host Pavan Srinath about the long struggle for women to secure property rights and land ownership in India. On Episode 148 of The Pragati Podcast, they discuss what progress has been made over the last century, and the vast pending scope of legal and societal challenges.

Shipra Deo is a development practitioner and the Director of Women’s Land Rights, India, at Landesa. Learn more here.

Devendra Damle is a consultant researcher at the National Institute of Public Finance and Policy (NIPFP). Devendra has also written and analysed the assumptions that govern the devolution of women’s property as per the Hindu Succession Act. Learn more about it here.

 

For further listening:
Pragati Podcast Episode #143 on Land and Reforms in India, with Shekhar Shah and Pranab Ranjan Choudhary.
Listen to it here.

Refine land acquisition process to unclog courts

Originally published in Financial Express on 1 September, 2020.

Executive discretion and inadequate compensation have led to litigation clogging the courts.

 

The debate over the recent Karnataka Land Reforms (Amendment) Ordinance has brought into focus the contestations over land in rural India. Conflicts over land form a large proportion of civil litigation in India. DAKSH’s Access to Justice 2017 survey showed 29.3% of civil disputes concerned land and property. Apart from disputes between private parties over inheritance, encroachment and eviction, there is widespread litigation over the compulsory acquisition of land by the state.

DAKSH conducted a study of land acquisition litigation in six districts and the High Courts of two states, Maharashtra and Karnataka between 2008 and 2018 to understand the nature and causes of such litigation. These cases relate both to the Land Acquisition Act, 1894 (‘1894 Act’) before 2013, and the new Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (‘2013 Act’).

In Maharashtra’s Amravati, Beed and Raigad districts, land acquisition cases on average remained pending between 1,516 days and 2,462 days. In Amravati and Beed, execution cases in land acquisition took inordinately long to get disposed. Execution cases here usually are for payment of the compensation amount. These delays in execution indicate serious flaws in the administration of the process, especially the payment of compensation by the state. If the state takes 1,424 days to merely pay money to a person whose land has been acquired, it points to a severe lack of planning in the executive processes.

In Bengaluru Rural, Mysuru and Kalaburagi in Karnataka, land acquisition cases remained pending between 729 days and 4,038 days. In Mysuru and Kalaburagi, the large volume of appeal cases before the district courts indicates a general proclivity to appeal in the expectation of higher compensation or perception of not having been treated fairly. This tendency to appeal persists despite the prospect of the case remaining pending for years, indicating that the perceived benefits of a favourable order from the appellate court far outweigh the litigants’ transaction costs in terms of time, effort and money.

Cases involving a challenge to compensation constituted 52.9% and 51% of the land acquisition litigation before the Bombay and Karnataka High Courts, respectively. Among such cases, reference courts (district courts hearing appeals from the decision of the land acquisition officer) have almost always enhanced compensation owed to landowners. Despite the increase in compensation by the reference courts, people still approached High Courts, seeking a further increase in compensation. The Bombay High Court enhanced compensation in 46.8% of the cases and the Karnataka High Court did so in 41%. It would be fair to conclude that inadequate compensation, coupled with a trend of courts increasing compensation, incentivised landowners to litigate.

The other major reason for litigation at the high court level is procedural irregularities. The most common procedural irregularities alleged were related to the preliminary notification of acquisition, declaration of public purpose and invocation of the urgency provision. These echo one of the major criticisms of the Land Acquisition Act 1894, of unbridled executive discretion. This kind of discretion led to a lot of room for arbitrary actions, various interpretations of statutory provisions and hence created fertile ground for litigation.

The 2013 Land Acquisition Act has reduced executive discretion to determine compensation and has delineated the ambit of ‘urgency’ and ‘public purpose’. However, the new provisions relating to compensation, social impact assessment, rehabilitation and resettlement still leave scope for executive discretion and hence the possibility of protracted litigation.

State governments need to create guidelines and set up protocols that narrow the scope of executive discretion and hence create more equitable outcomes for all parties concerned. It would be useful to have nodal officers at the department-level to avoid and contain litigation.

The 2013 Act has also ousted the jurisdiction of district courts over land acquisition, and references from Collectors’ awards now lie with an authority to be created under the Act. However, several states are yet to establish these authorities seven years after these were mandated. It is imperative that state governments issue guidelines on implementation and establish these authorities. Any changes in land laws will fall short on expectations unless the basic infrastructure for dispute prevention and resolution is in place.

 

 

Leah Verghese is Research manager at DAKSH, Bengaluru.

 

 

 

End gender-based discrimination in the Hindu Succession Act

Originally published in  Hindustan Times on 10 September, 2020.

The assumptions in HSA that govern the devolution of women’s property are no longer valid. We must acknowledge the reality of society and treat women on par with men in all spheres of life, including in matters of property devolution.

 

On August 11, the Supreme Court (SC) of India ruled that a daughter has the same rights as a son in an ancestral property under the Hindu Succession (Amendment) Act, 2005, regardless of when the father may have died, which the principle law – the Hindu Succession Act, 1956 (HSA) – originally did not grant. The 2005 amendment and the subsequent SC ruling are significant steps towards removing gender-based discrimination in HSA. However, the provisions of HSA which govern the devolution of property of a deceased woman are still firmly rooted in outdated assumptions.

These provisions treat the Hindu joint family, traditionally led by a patriarch and lineage traced through exclusive male relations, as central to all matters of inheritance. Therefore, HSA tries to retain property within the husband’s family as far as possible when a woman dies childless. This results in unfair discrimination against the woman’s natal family. Even when the woman has acquired the property through her skills and efforts, the husband’s natal family has a stronger claim over it than her parents. However, there is no reciprocal provision for the property belonging to the husband.

The notion that the law should preserve property in a Hindu joint family is based on two outdated assumptions. First, that the joint family is the most relevant and important unit of societal organisation among Hindus. Second, that women do not have the wherewithal to acquire and manage their property. Both these assumptions are out of touch with today’s reality.

The joint family is becoming increasingly irrelevant as an institution. According to the Census, the average family size of Hindu households reduced from 5.16 persons per household in 2001 to 4.9 persons per household in 2011. According to the Census, the median family size in urban areas has dropped below four. This is part of a larger trend of reduction in family size over the years and shows just how irrelevant joint families have become. Even the Hindu Code Bills committee expressed the same opinion in its 1944 report. BN Rau, the chair of the committee (and who would later play a pivotal role in drafting the Constitution of India), noted that the institution of a Hindu joint family is outdated and should be abolished.

The assumption that women do not have the capacity to acquire, hold, and manage their property is refuted by examining the socio-economic status of women today. The Hindu Code Bills committee, however, called this argument specious in its report. Proponents of this argument pointed to the low literacy rate among women as a justification. But the Committee refuted it by pointing out that the literacy rates among men were not significantly higher either. Regardless, HSA, as passed by the Parliament, included the problematic provision.

Today, far more women are employed than they were at the time when HSA was enacted. The workforce participation rates for women have increased from 12% in 1971 to 25% in 2011, according to Census figures. The National Family Health Survey (NFHS) 2015-16 reports that 28% of women (between the age of 15-49) own land – either jointly or by themselves – and 37% own a house (jointly or by themselves), 53% of women have savings accounts in banks. They own 21.5% of all proprietary establishments in the country, according to the Union ministry of statistics and programme implementation. Their literacy rate has increased from 9% in 1951 to 65% in 2011. They now represent 46% of the total annual enrolments in higher education, and are 53% of the total post-graduate degrees awarded every year.

This change in the status of women demands a fundamental change in the treatment of their property under the law. While some would argue that this provision only kicks in after their death, the lack of ability to provide for their natal family even after their death vis-a-vis a man’s ability to do the same impacts how women’s overall role is perceived in society.

Further, there are three demographic trends that add to the urgency of this reform. First, according to the Census 2011, there were 49.5 million women in India who were or had been married, and had no surviving children, up from 24 million in 1981. Second, India’s total fertility rate declined from 5.91 in 1960 to 2.51 in 2017, which means that women have fewer children today than they used to in the past. Third, the number of widowed women in India increased from 24 million in 1961 to 43 million in 2011. The increase in the number of widowed women far outstrips the increase in the number of widowed men. This is likely in part because the average life expectancy for women is higher compared to men, and the rates of remarriage for women are far lower. Put together, this means that the pool of women who are widowed and do not have children will likely be higher in the future than it is today. It is this growing pool of women who are, and will continue to be, affected by HSA’s discriminatory provisions.

The assumptions in HSA that govern the devolution of women’s property are no longer valid. We must acknowledge the reality of society and treat women on par with men in all spheres of life, including in matters of property devolution.

 

You can read more about the discriminatory provisions of the Hindu Succession Act in this paper published by NIPFP.

Devendra Damle is a researcher with the National Institute of Public Finance and Policy (NIPFP)

 

 

mountains in Himachal Pradesh

In Himachal, effective forest management could make cities more resilient too

Originally published in Citizen Matters on 29 October, 2018.

Forests become an easy scapegoat for urban infrastructure development. Recently, the National Highways Authority of India blamed meteorological events for triggering landslides in Himachal Pradesh, but such events are not the only cause of environmental degradation.

With the reckless cutting of 23, 785 trees to four-lane the Shimla-Kalka highway and excessive cutting of thousands of other trees to facilitate several hydroelectric projects, it is evident that excessive human activity in Himachal Pradesh is leading to degradation and deprivation of forest quality, which, ironically, would only impede the development that the state is hoping for.

The recent water woes in Shimla in which most areas of the city received water supply only once in eight days, and tourists were requested to avoid visiting the city, is one such example. Several news reports have documented how the drying up of the city’s water sources led to a consistent decrease in water supply quantity, while the city’s population keeps growing.

It is well-established that one of the major factors for these disappearing water sources and reduced rainfall is the loss of surrounding tree cover. The story of Shimla is likely to be repeated across the state, unless some pragmatic measures are taken.

In the face of rapid urbanisation, states need to compensate for the over- extraction of ecosystem services especially forest resources, by their large urban centers. A city does not exist in isolation from its surrounding region, and Participatory Forest Management (PFM) at the regional scale is one of the methods to achieve sustainable urbanisation. It is essential to not only escalate plantation drives and undertake compulsory compensatory afforestation as part of development projects, but also design programmes that are sustainable, people-friendly and self-driven. In doing so, taking care of the needs of the local community stands as a prerequisite to success.

The record so far

Since 1993, there have been several initiatives adopted by the State government of Himachal Pradesh in collaboration with international development agencies such as the World Bank and JICA to execute Joint Forest Management (JFM) programmes aimed at increasing the State’s green cover.

According to the India State of Forest Report (ISFR, 2017), the total forest cover in Himachal Pradesh has increased by 1% since 2015. However, today, after more than two decades, there are only approximately 635 active JFM committees within the State. This number has dropped from 963 active JFMCs in 2014.

According to many forest fringe communities, this increase in the number of inactive JFMCs has primarily been due to the lack of willingness among people, aggravated by erratic financial support from the Forest Department. Rapid urbanisation leading to less dependency on forests and drastic changes in climatic conditions are other factors leading to an increase in the number of non-functional JFMCs. Clearly, this requires a cross-examination of the socio-political conditions and the existing legal framework within the State.

Strengthening Joint Forest Management

An inclusive, rather than a top-down bureaucratic approach might prove worthy in the success of JFM. Involvement of stakeholders in the mere execution of forest programmes, originally prepared by the forest department, does not seem promising. Participation of villagers in the initial stages of developing micro-plans can lead to empowerment of locals by instilling a sense of ownership, planning and decision-making. Granting ownership rights to forest dependent communities may facilitate greater participation by involving more people in JFM activities.

Representation of women and members from vulnerable communities such as SCs and STs is critical in determining the success of JFM programmes. Taking into consideration indigenous knowledge required for planting native varieties is also essential. Gram Panchayats should be involved in selecting the sites and plant species for afforestation.

In addition to existing forest conservation programmes, awareness campaigns and subject specific training programmes will not only contribute to capacity building but also ensure improved practices and dignified livelihoods. There is a need to put in place monitoring and evaluation, and a system of social audit to assess the ecological, social and economic impact of such programmes.

An evaluation of the extent to which adoption of the legislative framework has responded to the needs of the local people is another significant realm. Preference should be given to the needs of the local communities, which is the intent of the law. The salient features of the State JFM Notification (1993) and PFM Rules (2001), over time, might create a mismatch with the evolving needs of people and changing land and climate conditions due to overexploitation of forests for infrastructure development and urbanisation.

External aid pumps much-needed fiscal support into the existing forestry framework in Himachal Pradesh. However, the success and effectiveness of a donor-driven initiative largely depends upon its ability to engage people in forest management activities and ensure continued collaboration between forest department and local communities, even after the life of the project. In the past, lack of consistency in the execution of forest conservation projects and absence of sustainable participatory afforestation practices have compromised the very agenda of the forest department.

Recent measures

This year, in February, the Supreme Court partially removed a ban on green felling in Himachal Pradesh by allowing limited silviculture felling across three districts. Partial removal of this blanket ban after more than two decades will allow regeneration, felling, and thinning of trees, thereby promoting the health of the forest.

Entitlement to a significant share in financial gains received from the sale of timber is another incentive. The extent of participation in co-management of forests, including integration of village micro-plans into Forest Department’s Working Plans, will play a vital role in long-term sustenance of conservation and regeneration activities.

In addition, the present State government in an effort to increase the forest cover recently introduced three forestry schemes—Samudayik Van Samvardhan Yojna, Vidyarthi Van Mitra Yojna, and Van Samridhi, Jan Samridhi Yojna—with a special emphasis on promoting Participatory Forest Management. The proposed schemes will allocate plots in forest land to local people for plantation of useful species and to schools to carry out afforestation activities. These are welcome initiatives and shall go a long way in increasing forest cover.

Given the proven role of forests in filtering pollutants, regulating rain and water supply and restricting flooding, these measures will, in turn, significantly enhance the resilience of those very cities that are often prioritized over forest conservation and management. However, the onus for success of all such programmes rests on the capability of the Forest Development Agencies and JFMCs to sustain and continue conservation practices.

Hansika Seth is an Associate at the Indian Institute for Human Settlements. She is trained as a Sociologist and a Social Worker, and has worked on issues of land rights, gender and Right to Education. At IIHS, her work focuses on land record management including institutional policy questions on land ownership, land use and the political economy of land.