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mountains in Himachal Pradesh

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

Published on By Hansika Seth

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.

Satellite image of JLN Stadium

Is Delhi ready for development based on land pooling?

Published on By Ruby Moun

Originally published on Citizen Matters on 26 October, 2018.

On 11th October the Ministry of Housing and Urban Affairs notified a land pooling policy under the 2021 Master Plan for Delhi, to address the large scale housing gaps in Delhi. Through this policy, Delhi is set to get 17 lakh new affordable housing units, with a capacity to accommodate 76 lakh people.

This policy signals a change in the Delhi Development Authority’s (DDA) model of land acquisition and development to a ‘land pooling model’, where the private sector and land owners are both partners in the development. However, while the policy is a first step, the release of land (whether through land pooling or other means) cannot alone ensure adequate and timely delivery of affordable housing. Unless followed by proper implementation and associated safeguards, Delhi could meet the same fate as Gurgaon and Faridabad, which have a fair supply of housing, but are still severely lacking in public goods such as water supply, sanitation and road infrastructure, in the absence of which the very purpose is defeated.

The revised policy, which transfers many of DDA’s responsibilities to the private sector, thus brings up two major areas of concern: first, is the DDA ready for the implementation stage of the policy in terms of its resources and institutional capacity?

Second, will the DDA be successful in satisfying the private sector by ensuring secure returns on their investment, while simultaneously implementing a stable regulatory frame that enforces creation of public goods?

Why land pooling?

In 2013, a new Land Acquisition Act was passed, laying down procedures for granting compensation, rehabilitation and resettlement of people affected by land acquisition. This act has generally been perceived by officials as too onerous, with increased costs and delays due to litigation impacting the financial viability of urban development projects.

Land pooling, on the other hand, offers a mechanism where land-owners directly pool their land for a project, and get a share of developed land in return instead of monetary compensation. Lately, land pooling has became an acceptable mode among the landowners to aggregate land, and Amravati, the new capital of Andhra Pradesh is the most popular example of land-pooling being used for urban development.

Gujarat is one of the earliest states to use land pooling, starting with the Jamalpur scheme in Ahmedabad in 1925, and has evolved its land pooling process by continuously adapting to changed situations, achieving relative success. While several states have come up with land pooling policies, most have had weak institutional adaptations, thus affecting the implementation and return of benefits.

Punjab introduced land pooling in Greater Mohali area in 2012, but benefits to the landowners have been delayed. In Haryana, approvals required from multiple departments have stalled the final notification of the land pooling policy.

Timeline for Delhi policy

With its rising population, Delhi had begun acknowledging the need for a shift from the acquisition process to an alternative for land aggregation to meet its housing demands, and deliberations for public-private partnerships in the process of land development had begun in 2003. Since Delhi has a peculiar constitutional set up as the national capital with dual jurisdiction of Union and State governments, it took almost a decade for a formal policy to this effect to be approved in 2013. But this too was not followed up by regulations for implementation.

In 2017, the DDA came back with major amendments in the pooling policy, restricting its role to that of a facilitator and regulator, and transferring many of its responsibilities to the private sector, especially those related to development and redistribution of developed land parcels and housing units. These amendments have now been approved, replacing the 2013 policy and should be followed by implementation regulations.

Is DDA ready?

Before any development can be initiated, there are certain aspects which the DDA needs to work on, one of them being the timely revision of the Zonal Development Plans (ZDPs). Delhi has 15 zones under the Master Plan, and each has its own ZDP. It is the ZDP that would denote exact areas which are open to land pooling.

If a consortium of developers has 70 per cent of contiguous area in any sector, it can apply for a development license for that area. However, these sector boundaries are yet to be defined in the ZDPs, and this becomes an urgent prerequisite to be met by DDA to initiate the implementation of the policy.

The policy has also introduced concepts such as ‘external development charges’ and ‘tradable Floor Area Ratio (FAR)’ to the Delhi real estate market. External development charge is the amount that the builders would pay to DDA, for providing public services and infrastructure; while tradable FAR would be floor space that can be used by developers for building additional floors on certain other locations, or for trading them to other developers. Awareness about these concepts and their acceptance among the public and the stakeholders is crucial, since this would play a key role when these documents are used for transactions.

To ensure public awareness, transparency of information and confidence building among investors, DDA will need to strengthen its communication strategy significantly.

Ever since the first draft of the policy was introduced in 2009, many potential buyers have ended up putting token amounts in proposed projects, even when the area under the land pooling scheme had not yet been declared. In the absence of any real estate regulator and redressal mechanism then, the situation was not handled strategically by the DDA; the latter merely circulated a notice to not buy flats which claim to be on land developed through pooling, but could not take legal action in such cases.

Presently, the Real Estate Regulatory Authority (RERA) Act, 2016 has been enacted and would function parallelly to regulate real estate development and strengthen the buyer’s rights, but the integration of this law into the land pooling model remains to be seen.

Coordination of DDA with private sector

The private sector, understandably, has been keen to get the policy implemented and it is reported that in the ninety-five villages declared as part of the development area, land has already been aggregated by private entities. Under the new policy, there may be a sudden boost in the land development process, putting pressures on DDA and other service providers to keep pace with private development for integrated infrastructure provision.

However, with DDA’s limited capacity and lack of sufficient experience with private sector partnerships, it will have to scale up institutional capacity and resources.  The land pooling policy itself will need more elaboration on aspects such as the phasing and prioritisation of the projects.

Although Delhi has seen development through private entities and through co-operative housing societies, land pooling as a policy brings in new concepts such as providing a licence to prospective developers based on the applications made and other obligations such as checking the compliance of the submitted plans to building byelaws, implementing a proposed ‘single window system, and keeping a check on the final implementation.

The city will also need to have a mechanism to address any disputes between developers, landowners, buyers, and other stakeholders. All this will put immense strain on the limited capacity of the recently formed land pooling cell in DDA.

Ruby Moun is an Associate at Indian Institute for Human Settlements. She is trained as an architect-urban planner, and has worked on land administration, particularly related to land assembly and land records management in various states. Views expressed are personal.

A rice field with a woman farming

No Woman’s Land: Navigating issues of Land & Gender

Published on By Shalmoli Halder

This piece was originally published on the Omidyar Network India website on 25 June, 2020.

As the world grapples with the idea of a new normal under the COVID-19 lockdown, there’s been a ripple effect of the pandemic across all aspects of our lives. Schools, workplaces, industries, markets, have all been compelled to reinvent and transform themselves overnight, while governments and policymakers have been trying to come up with solutions to mitigate the effect of this transition on our socio-economic well-being.

One of the areas discussed during last month’s Charcha 2020, where Omidyar Network India hosted a track on Land and Property Inclusivity, was the complicated relationship between land ownership rights and gender. As we have seen during the Covid-19 crisis, while male migrant workers are stranded in cities, women farmers and women in rural households are left with little financial support or remittances in case of an emergency. There is also higher mortality among men from Covid-19 and therefore, more households are likely to be headed by women and unfortunately, therefore, are likely to be poorer. Land ownership for women in rural areas will be particularly critical for any significant access to economic opportunity. Land-owning women have been more resilient, particularly so during the Covid-19 crisis.

Historically, patriarchal gender norms and legal biases based on gender have deterred ownership of land by women. In a memorable session of #Charcha2020 titled #Land4Women: Covid-19 and Beyond, Padma Shri awardee Dr Bina Agarwal, a leading economist on land and gender, led an engaging discussion with journalist Raksha Kumar.

Dr Bina Agarwal shared her experience from studying mixed-gender, group-farming models in Kerala and Telangana which provided alternative solutions to women being unpaid workers on their family farms. Such models facilitating economic resilience for women through land ownership could be immensely useful in strengthening rural livelihoods in the long run.

“Impact of Covid-19 is embedded in pre-existing inequity. Land is the most important productive resource & form of wealth in India. Therefore, gender inequalities in land ownership should be treated as foundational in discussing the economic inequality between men and women.”

Another session titled #Land4Women: Gender-Based Violence and Land led by Shipra Deo, Director of Women’s Land Rights at Landesa offered a critical review of the link between access to land rights and gender-based violence faced by women. By discussing the various factors which deter women from becoming landowners, Deo emphasized that sensitizing government officials on property rights for women is key to enabling change in this regard, as is ensuring that laws and systems are more gender-equitable.

“Those in charge of implementing our policies, laws and programs have the same gender biases as the rest of society which makes overt and covert discrimination against women’s rights a norm. We need to review land laws, sensitize government officials, disseminate information to women, and launch public campaigns to improve the mindset around women’s property ownership.”

You call watch all sessions of Charcha2020 here.

Podcast: Land and Reforms in 2020

Published on By PRRC India

What land reforms does India need in 2020? How can we think about property rights, and a complicated legislative history and ground reality in India?

 

Shekhar Shah and Pranab Ranjan Choudhury give host Pavan Srinath a masterclass on land and reform on Episode 142 of The Pragati Podcast. They discuss what constitutes property ownership in India, what land reforms have meant between the 1950s and 1980s in India, and what they can mean in 2020. The discussion spans rural land conflicts, weak land record systems, the challenges faced by Adivasis and tribal groups being denied their legitimate rights, land acquisition, the growth of private industries, and more.

Dr Shekhar Shah is an Economist and the Director General of NCAER (@NCAER), the National Council for Applied Research in New Delhi. As a part of their Land Policy Initiative, they released the first edition of a Land Records Services Index in February 2020 and ranked Indian states and union territories. Learn more here.

Mr Pranab Ranjan Choudhury (@prchoudhury) works with the Centre for Land Governance in Odisha, and has worked for over 18 years on natural resources management and land governance across India. Read more about his work here.

 

For further listening:
Pragati Podcast #148 on the unfinished journey of women’s property rights in India, with Shipra Deo and Devendra Damle. Listen to it here. 

Gulabo Sitabo logo

Why land and property cobwebs make good plotlines for Bollywood

Published on By Chinmay Rayarikar

It is often said that cinema is a mirror to the society that it thrives in. The recently released film Gulabo Sitabo, directed by Shoojit Sircar with Amitabh Bachchan and Ayushmann Khurrana in the lead, is a brilliant comedic take on the state of our property records. The very first Bollywood film to premiere entirely online; the film’s trailer created much buzz around Amitabh Bachchan’s look and the on-screen presence of the bickering duo, an elderly landlord Mirza (Bachchan) and one of his young tenants, Baankey (Khurrana).

The film is centred around the life of 78-year-old Mirza and his wife Fatima. Fatima, who is 17 years older than Mirza, is the owner of the ancient haveli in Lucknow that they live in. Fatima has let several tenants live in the haveli’s vast expanse, for rents that are next to nothing. Despite this, Baankey and his family, which consists of his three younger sisters and mother, refuse to pay their rent, partly due to their poor financial condition, and partly because of the poor condition of their living quarters. Fatima is seemingly on her deathbed, and Mirza is impatiently waiting for her to pass away so that he can inherit the haveli and evict all his troublesome tenants. As his impatience grows, Mirza goes to a lawyer to see whether he can use legal provisions to evict the tenants from the haveli.

At the lawyer’s, Mirza discovers that the haveli has been handed down to Fatima by her father without any formal document confirming her inheritance. This leads to a wild chase all over Uttar Pradesh, as Mirza tries to track down all of Fatima’s living relatives and asking them to formally give up their claim to the haveli. On the other hand, Baankey talks to government officials from the archaeology department, who discover that the haveli is worthy of being designated a historical monument. Humour and confusion ensue, as both Mirza and Baankey try to outwit each other in different ways to retain control. Sharing more would lead to spoilers but the film has all sorts of characters usually associated with transfer of land and property in India, from corrupt politicians to real estate developers, disgruntled tenants to unscrupulous middlemen.

This film joins a league of handful (but brilliantly narrated) Bollywood films that have touched upon the issue of land ownership, tenancy, confusion between land authorities and landlessness: issues that Indian citizens are all too familiar with and have internalized to an extent that these movies are not always tragedies! These movies have managed to be laughing riots or found space for romance and relationships, even as they were set amidst land disputes, which are usually the most stressful times of Indian adult lives. In this blog, we peek into Bollywood’s narration of contemporary land and property rights related issues through three other films that have used these plotlines in the past!

Do Bigha Zamin: Bimal Roy’s Do Bigha Zamin (1953) is a classic, critically acclaimed film which follows the life of a humble villager, Shambu Mahato, played by Balraj Sahni, and his family as they try to fend off a local landlord from taking their land to build a mill. Shambhu owns two bighas of land (around two-thirds of an acre), which sit right in the middle of the land owned by the local zamindar, Harnam Singh, played by Murad. Singh wishes to acquire Shambu’s land, but on being refused by Shambu, decides to take him to court based on the money that Shambu had borrowed from Singh, which he had been unable to pay back. Shambhu is given three months to pay back his debt, or risk losing his land to Singh as collateral. In portraying this story, the film touches upon the ruthless cycle of debt that the rural poor in India face. For many Indian households, the most significant assets are held in the form of land and housing. The threat to these assets and the livelihoods of these households by powerful, vested interests continues to be a horrifying reality in rural India, which is why this film from the early 1950s, continues to resonate even today. 

 Khosla ka Ghosla: One of the most popular ‘modern’ films on this theme, Khosla Ka Ghosla (2006), upon its release, became an immediate hit with viewers and critics alike. This film follows the exploits of Kamal Khosla (Anupam Kher) and his family, who find their ‘dream’ plot of land, bought with Kamal’s hard-earned money, only to be encroached upon by the corrupt Kishan Khurana (Boman Irani), the leader of a local property-usurping criminal gang in Delhi. With the Khosla family getting tangled in a series of hilarious events as they deviously plan to remove the squatter i.e. Khurana, from their rightfully owned property, the film manages to weave a narrative on issues which hit a chord with most middle-class urban families. From showcasing a family’s struggle to buy and own property, to dealing with land mafia and legal disputes over property ownership, and finally taking the story to a happy ending with a good old solution of Indian jugaad, the film’s captured the lived experiences of most home buyers in urban India. Let’s hope things improve for the better as Real Estate (Regulation and Development) Act, 2016 starts to take root. 

Love Per Square Foot: Released exclusively on the online streaming platform, Netflix, Love Per Square Foot (2018) is a film directed by Anand Tiwari, which humanizes the many challenges surrounding real estate in Mumbai. The film shares the story of two millennials, Sanjay (Vicky Kaushal) and Karina (Angira Dhar), both of whom belong to lower-middle class families in Mumbai and dream of owning their own apartment. Through scenes which show Sanjay’s mother banging on the bathroom door while he reads a newspaper on the pot, or the ones that show plaster peeling off the ceilings at Karina’s crumbling house, the film manages to beautifully capture the reality of the millions of youngsters in Mumbai, who live in crammed houses and travel in jam-packed local trains but dream of having their own space someday. The film follows a comical set of events as Sanjay and Karina decide to con the state government’s system by entering a marriage of convenience to buy a house under a subsidized housing scheme meant for married couples. Affordable housing is a huge challenge in India’s mega cities, this film unknowingly puts a spotlight on the bureaucratic hurdles that exist even in the schemes that are launched to address this problem. Not to mention an unintentional commentary on the lack of state capacity to administer these affordable housing schemes with numerous onerous conditions. 

In a country where countless people own no land, or have insecure access to land and housing, it is inevitable that these issues get reflected in films. At the centre of these films, characters are portrayed as going to any lengths to keep their land or homes from being taken over or to accumulate new land or build a new home. Stories of property disputes from a landlord-tenant dispute to conflicts over rightful ownership, or even the humbling desperation of an individual to own a property in their name, are so commonplace, that nearly everyone relates to them. However next time you watch a movie with a similar storyline, do remember that behind all the glitz, glamour and light-hearted humour of these films, lies the all too familiar tragedy of a broken land governance system. 

Chinmay Rayarikar is a policy associate with The Quantum Hub, a policy research and communications firm.

Landscape of urban slums in Mumbai, India

Covid-19: Formalise urban slums for long-term resilience

Published on By Shreya Deb

This piece was originally published in the Hindustan Times, on 07 June, 2020.

Urban areas across the developing world are characterised by an underbelly of shanty towns, slums, and other forms of informal settlements. With the availability of affordable homes failing to keep up with rapid urbanisation and population growth, this underbelly continues to grow in most major cities, making its residents increasingly vulnerable. Once in every few years, this vulnerability gets brutally exposed, particularly during disasters, such as the current coronavirus disease (Covid-19) pandemic.

The poor housing conditions within informal settlements make them a hotspot for the spread of the pandemic for many reasons. Physical distancing and frequent hand washing are near impossible in the cramped houses with shared toilet facilities. A recent study by Brookings India showed that 30% of Covid-19 containment zones in Mumbai were inside slums. Moreover, 70% of these were red zones, indicating the rapid spread of the virus in such congested areas.

So, how did we get here? The 2011 Census recorded 65 million slum dwellers, of which one-third resided in slums that did not exist on any government record. Similarly, a study by Duke University used satellite imagery to track the growth of slums in Bangalore and found nearly 2,000 slum settlements in the city, while the official records showed close to only 600 settlements. If informal settlements, and consequently their residents, do not exist on government records, it is unlikely they will receive access to basic sanitation services, let alone, quality housing or relief measures during a disaster.

This informality also causes a looming fear of eviction which, according to consulting firm FSG, discourages the residents from making an incremental investment in building better facilities. Similarly, municipal authorities view these settlements as “illegal” and de-prioritise the provision of basic services. However, experts agree that securing tenure for slum households not only increases the inclusion of slum dwellers in public welfare records, but it also leads to better economic and physical health, educational outcomes, gender equality, and better land and resource conservation. If people feel secure that their investment will not be demolished, they are more likely to pour their hard-earned money into improving their housing.

A good example is Ahmedabad’s Slum Networking Project (SNP). Initiated in 1995, it introduced a no-eviction guarantee to the city’s slum residents for a period of ten years. This encouraged residents to co-invest along with the government in laying down last-mile sanitation infrastructure, thus significantly leveraging the public finances. This created a ripple effect that led to a better economic and physical health, and educational outcomes, and was acknowledged globally as a best-practice housing policy.

As policymakers work to solve the current pandemic challenges, it will be important to reflect on the long-term measures needed to prevent similar crises. Experience and evidence suggest three measures.

One, recognise the informal. India is marked by a large informal economy, which comprises of informal workers, businesses and housings. Moving towards a way to recognise and record them officially is the first step. It has taken a crisis like the coronavirus pandemic to highlight the facts that we don’t know who these informal workers are, what their sources of incomes are, or where they live.

Two, provide security of tenure. Slums have become an integral part of our society. They impact our daily lives and cannot be wished away. The Ahmedabad SNP programme offered a short duration no-eviction guarantee, which transformed the housing conditions in the slums. Policymakers will need to innovate and offer solutions to improve the quality of housing and basic services in these settlements, such as a no-eviction guarantee, community land titles, or individual household titles, as offered by Odisha’s Jaaga Mission.

Three, partner with the community. For a country of our scale, top-down solutions can only go so far. Bottom-up solutions, involving community members and non-governmental organisations (NGOs), will allow last-mile delivery of services and minimise conflict. For example, Odisha’s Jaaga Mission, by partnering with NGOs and slum dweller associations, successfully mapped nearly 200,000 slum households in a matter of months to provide land titles and housing benefits. Even during this pandemic, state governments have acknowledged the role of NGOs in providing relief measures. This last-mile partnership, when enhanced with technology and greater transparency, can truly transform the delivery of governance at the grassroots.

The ongoing pandemic prevention and relief programmes are reactive, bandaid solutions. We need to acknowledge that this will not be the last public health emergency that we will face as a society, and we need to take a long-term view of the efforts needed to improve our collective resilience and build a more inclusive society. Thankfully, successful models exist. We just need the political will to implement them at scale.

Rainy day in a city in India

Indian courts clogged with land disputes because laws keep conflicting each other

Published on By Namita Wahi

This piece originally published in the Print, on 26 June 2019.

An estimated 7.7 million people in India are affected by conflict over 2.5 million hectares of land, threatening investments worth more than Rs 14 lakh crore. Since land is central to India’s developmental trajectory, finding a solution to land conflict is the foremost policy challenge for the Narendra Modi government. Land disputes account for the largest set of cases in Indian courts – 25 per cent of all cases decided by the Supreme Court involved land disputes, of which 30 per cent were related to acquisition; and surveys suggest that 66 per cent of all civil cases in India are related to land or property disputes. The average pendency of a land acquisition dispute case, from its creation to its resolution by the Supreme Court, is 20 years.

What’s behind land disputes?

The high incidence of legal and extra-legal disputes over land is because of legislative factors, that is, existence of numerous, conflicting laws arising from historical narratives and current policies governing property rights; and administrative factors like administration’s failure to comply with these laws. The pendency of these land dispute cases, in turn, is due to judicial factors – first, there are legal and evidentiary barriers in bringing land dispute cases to court, and then lack of judicial capacity prevents quick resolution.

Conflicting narratives, policies, and land laws

The first narrative inherited from British rule regards the state as the owner of any land not privately owned, and gives it power to redistribute land at will as largesse to select beneficiaries. Such state acquisition of land has historically been the source of considerable dispute. Centre for Policy Research’s Land Rights Initiative (CPR-LRI) estimates that these disputes constitute 30 per cent of all land litigation in the Supreme Court over the past 70 years. The LRI study of land acquisition litigation before the Supreme Court between 1950 and 2016 reveals that all litigation is with respect to privately held land. In contrast, data from Land Conflict Watch reveals that the vast majority (three-fourths) of current, on ground, extra-legal conflict over land is with respect to common lands.

The second narrative, articulated by the people – farmers and traditional communities like cattle grazers, forest dwellers, tribals, fisherfolk – views land as an economic, social, and cultural resource over which multiple groups exercise property rights. Usually, after intense on-ground contestation, the property rights of certain groups like Scheduled Tribes (STs) and tenants have been protected by the Constitution and statute.

Land laws conflict with each other because they seek to articulate these two competing narratives. For instance, the provisions of the Forest Rights Act, 2006, are sometimes seen in conflict with those of the Indian Forest Act, 1927, and the Forest Conservation Act, 1980.  The provisions of the Forest Rights Act, 2006, are also threatened by proposed amendments to the Indian Forest Act. Legal conflicts also arise when laws are enacted or amended at different times to appease different stakeholders.

Finally, many subjects pertaining to “land” are in the “state” and “concurrent” lists of the Constitution, leading to a multiplicity of original and active land laws. A first of its kind, ongoing LRI study estimates that India has over a thousand original and active, central and state land laws.

Administrative non-compliance with law

The LRI study of land acquisition disputes shows that 95 per cent of all disputes between 1950 and 2016 arose because of administrative non-compliance with the procedure for acquisition of land under the law, including the process of computation of market value compensation for land acquired. Of these, 34 per cent of disputes involved irregularities in completion of the procedure for acquisition. Almost half of the cases involved administrative unwillingness to comply with the rule of law, and the remaining half involved administrative incapacity, in part because of governmental failure to regularly update administrative manuals based on changes in the law. Moreover, the government was more likely to lose these land acquisition dispute cases before the Supreme Court.

Finally, legal disputes over land are also created by evidentiary barriers for establishing rights over land in the absence of documentary proof because of outdated/no land surveys and inaccurate/outdated land records in most states.

Judicial causes for pendency

Once a land dispute goes to court, serious judicial incapacity leads to pendency of cases because of three reasons: India’s low judge-to-people ratio; lack of financial, technical, and infrastructural capacity necessary to resolve disputes quickly, particularly at the judiciary’s lowest levels; and poor enforcement of court decisions by the government, and limited judicial capacity to follow up on such enforcement.

Policy recommendations

Eliminate legal conflicts:  No government has ever attempted an exercise to rationalise existing land laws. After the creation of an exhaustive database of all land laws in India, the Law Ministry and the Law Commission must identify, and Parliament must repeal, laws that deny rights to certain groups of people, particularly women, and eliminate conflicts between laws.

Implement rule of law: The Modi government must take steps to ensure greater administrative capacity and willingness to implement the rule of law. In addition, we need greater coordination between government departments, and better access to land data. This can be achieved through:

  • Creation of a separate Ministry of Land to serve as the nodal agency for coordinating land policy.
  • Coordinated effort between the Ministry of Law and Justice, the Department of Land Records, Ministry of Environment and Forest, Ministry of Tribal Affairs, state boards of revenue, and the forest departments of each state to resolve conflicting land laws and streamline land administration.
  • Updating land administrative manuals according to changes in legislation and judicial precedent by the concerned government departments.
  • Resolving land boundary disputes between revenue and forest departments.
  • Devoting financial and technical resources to conduct land surveys and update paper records, as opposed to digitisation of existing records.
  • Ensuring government officials have both knowledge and capacity to implement the rule of law.
  • Carefully evaluating the likelihood of success of an appeal before preferring it. Government officials must be incentivised for not appealing cases with little likelihood of success.
  • Committing to transparent land administration and complying with obligations under the Right to Information Act, 2005. In addition, the government must open departmental data on compliance with land laws to public scrutiny.

Judicial reforms: The first step in this direction would be the implementation of key recommendations of the Law Commission. These include:

  • Changing the base for determining sanctioned posts for judges from ‘judge-to-population ratio’ to ‘rate of disposal method’.
  • Filling up all existing vacancies.
  • Increasing retirement age of subordinate judges to 62; and those of high courts and Supreme Court to 65 and 68 years, respectively.
  • Greater financial allocations to the lower and higher judiciary.

Some states like Bihar have created separate land tribunals for quick resolution of land revenue cases. This model can be studied, and, if found effective, replicated in other states.

Due to increasing population pressure on land, and the corresponding demand for land to fuel the development engine, the scale and scope of land conflict today has assumed gigantic proportions, stalling development projects and threatening livelihoods and investments. Equitable and efficient intergenerational management of land is necessary not just for India’s economic development, but also for its political and social stability. Therefore, working towards resolving land conflict, in light of the above policy recommendations, is an imperative agenda for the Modi government.

Urban landscape in India

Understanding Land Conflict in India and Suggestions for Reform

Published on By Namita Wahi

This piece was originally published on the CPR India website on 26 June, 2019.

An estimated 7.7 million people in India are affected by conflict over 2.5 million hectares of land, threatening investments worth $ 200 billion.1 Land disputes clog all levels of courts in India, and account for the largest set of cases in terms of both absolute numbers and judicial pendency. About 25% of all cases decided by the Supreme Court involve land disputes, of which 30% concern disputes relating to land acquisition.2 Again, 66% of all civil cases in India are related to land/property disputes.3 The average pendency of a land acquisition dispute, from creation of the dispute to resolution by the Supreme Court, is 20 years.  Since land is central to India’s developmental trajectory, finding a solution to land conflict is one of the foremost policy challenges for India.

Understanding Incidence and Pendency of Land Conflict in India 

Legislative and administrative factors are responsible for the high incidence of legal and extralegal conflicts over land, and judicial factors are behind the pendency of land disputes. Competing historical and current policy narratives of property rights over land, have resulted in the coexistence of numerous, conflicting laws leading to legal disputes over land. This is the legislative factor. This problem is compounded by administrative failure to comply with the rule of law. This is the administrative factor. The pendency of conflict, in turn, is a result of legal and evidentiary barriers in bringing land disputes to court, largely due to administrative and judicial incapacity; this prevents expeditious resolution of land disputes. This is the judicial factor.

Conflicting narratives, policies and land laws create land disputes

There are two conflicting narratives about ownership and management of land in India. The first narrative – inherited from the British colonial state5 – views common land, or land that is not privately owned, as merely a commodity, no different from labour and capital, with the state as the ultimate owner.6 This claim to ultimate ownership gives the state the power to redistribute land at will, as largesse to selected beneficiaries.7 Such state acquisition of land has historically been the source of considerable dispute. According to estimates by CPR’s Land Rights Initiative (LRI), these disputes constitute 30% of all land litigation in the Supreme Court over the past 70 years. LRI’s comprehensive study of land acquisition litigation before the Supreme Court over a 66-year period, from 1950 to 2016, reveals that all litigation is with respect to privately held land. In contrast, data from the Land Conflict Watch project reveals that the vast majority of current, on-ground, extralegal conflict over land is with respect to common lands.8 Thus, it is clear that in the face of state acquisition of land, when people have legally recognized land rights, they go to court. Where their rights are insufficiently recognized by law, they protest on the ground.

The second narrative – articulated by the ‘people’, including farmers, both landowners and tenants; and other traditional communities, such as cattle grazers, forest dwellers, tribals and fisherfolk – views land as an economic, social and cultural resource over which multiple groups exercise property rights. Usually, after intense on-ground contestation, the property rights of certain groups like Scheduled Tribes (STs)and tenants have been protected by the Constitution9 and statute,10 while in case of other groups like fisherfolk,11 their rights are protected by custom and, often, executive action.

As a consequence of these two historically competing policy narratives, the constitutional, legislative and administrative framework governing land is as fragmented as the land holdings in India.12 Enacted at different points of time, land laws clash with each other, because they seek to articulate in law these two competing narratives. For instance, the provisions of the Forest Rights Act, 2006, are in conflict with those of the Indian Forest Act, 1927, and the Forest Conservation Act, 1980, and are also threatened by proposed amendments to the Indian Forest Act.13 Legal conflicts also arise when laws are enacted or amended at different times to appease different stakeholders. For instance, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (RFCTLARR) Act has, in the five years since it came into force, been amended by seven state legislatures.14 This will likely create more legal disputes with respect to land acquisition, because the original RFCTLARR Act provisions had been included with a view to addressing growing conflict over land acquisition.15 Moreover, in many states, we find laws that provide for eviction of unauthorized occupants over public lands coexisting with laws that provide for regularization of unauthorized occupation, thereby creating potential for dispute/conflict at the level of law itself.16

Finally, the legislative landscape is complicated by the fact that many subjects pertaining to ‘land’ are in the ‘state’ and ‘concurrent’ lists of the Constitution, leading to a multiplicity of original and active land laws.17 Yet, there is no official comprehensive database of all land laws in India. A first of its kind, ongoing LRI study estimates that India has over a thousand original and active central and state land laws.18

The problem of ‘multiple laws’ is exacerbated by the fact that these laws are administered by numerous government ministries at the central level, and departments at the state level. These include, for instance, the ministries of Law and Justice, Rural Development, Mining, Industries, Infrastructure, Urban Development, Tribal Affairs, Home Affairs and Defence.

Administrative non-compliance with law also creates and prolongs land disputes  

Where laws are clear, disputes and conflicts arise because of administrative non-compliance with the rule of law due to both unwillingness and incapacity. The LRI study of all Supreme Court cases on land acquisition during 1950-2016 shows that 95% of the disputes arose because of administrative non-compliance with the legal procedure for acquisition of land, including the process of computation of market value compensation for land acquired.19 Around 34% of the disputes involved irregularities in completion of the procedure for acquisition. Almost half of such cases concerned with procedural irregularities involved administrative unwillingness to comply with the rule of law. The remaining half of the cases involved administrative incapacity to comply with the rule of law, in part because of governmental failure to regularly update administrative manuals based on changes in the law. Moreover, the government was more likely to lose than win these land disputes before the Supreme Court.20

Additionally, since colonial times, land in India has been broadly administered by the revenue and forest departments. But there have also always existed disputes between both departments as to which land belongs to which department. This in turn creates and prolongs land disputes.

Finally, legal disputes over land are also created by evidentiary barriers for establishing rights over land in the absence of documentary proof21 because of outdated/no land surveys22 and inaccurate/outdated land records23 in most states. The Department of Land Resources has sought to resolve the problem of inaccurate land records through the ‘Digitisation of Land Records Modernisation Programme’. However, unless the government makes a serious attempt to update land records on the ground to reflect the property rights of all landowners, digitizing them would not eliminate the problem of inaccurate land records.

Judicial reasons cause pendency of land disputes

Once a land dispute goes to court, serious judicial incapacity leads to pendency of disputes. First, a major cause for pendency of all disputes is India’s low judge-to-people ratio.24 Land cases form more than half of all civil cases and constitute over a quarter of cases before the Supreme Court; they also have the longest pendency compared to other cases. Hence low judge-to-people ratio particularly prolongs resolution of land disputes. Second, the judiciary, particularly at its lowest levels, lacks the financial, technical and infrastuctural capacity necessary to resolve disputes quickly.25 Finally, poor enforcement of court decisions by the government, and limited judicial capacity to follow up on such enforcement, especially when such decisions go against the government, also lead to prolonging of land disputes.

Policy Recommendations for Reducing Incidence and Pendency of Land Disputes 

Eliminate legal conflicts. No government has ever attempted an exercise to rationalize existing land laws. But this is the need of the hour. The Law Ministry and Law Commission are best positioned to conduct or commission such an exercise. This would involve, first, the creation of an exhaustive database of all land laws in India. Once such a database of laws is created, the Law Ministry and Law Commission must identify, and Parliament must repeal, laws that deny rights of certain groups of people, particularly women,26 and eliminate genuine conflicts between laws.

Improve administrative willingness and capacity to implement the rule of law: The government must take steps to ensure greater administrative capacity and willingness to implement the rule of law. In addition, we need greater coordination between government departments dealing with land, transparency of land administration, and better access to land data. This can be achieved by undertaking the following measures.

  • The Department of Land Resources, currently under the Ministry of Rural Development, is the nodal agency for coordination of land policy across states. But land is not merely a rural concern. As India becomes increasingly urbanized, the government needs to have a more comprehensive imagination of land requirements for rural and urban populations. The creation of a separate Ministry of Land to serve as the nodal agency for coordinating land policy across different types of land is critical.
  • There needs to be a coordinated effort between the Ministry of Law and Justice, Department of Land Records, Ministry of Environment and Forest, Ministry of Tribal Affairs, state boards of revenue, and state forest departments to resolve conflicting land laws and streamline land administration.
  • All government departments dealing with land, and particularly those involved in land acquisition, must update administrative manuals in accordance with changes in legislation and judicial precedent.
  • Through dedicated interdepartmental meetings and other coordination, government must resolve land boundary disputes between the revenue and forest departments.
  • The government must devote financial and technical resources to conduct land surveys and update paper records to reflect property rights of all the people, as opposed to digitization of existing records that are substantially inaccurate.
  • The government must ensure better skills training so that officials dealing with land have both the knowledge and the capacity to implement the rule of law. Institutional mechanisms should be designed to incentivize compliance with, not defiance of, the rule of law.
  • Given the low success rate of government appeals, the government must carefully evaluate the likelihood of success of an appeal before pursuing it. Government officials must be incentivized to not appeal cases that have little likelihood of success following such an evaluation. This would go a long way in reducing pendency of land disputes.
  • The government must wholly commit to transparent land administration and comply with its obligations under the Right to Information Act, 2005, to make digitally accessible all land laws, executive notifications, rules, circulars, etc. pertaining to land administration. In addition, the government must open up to public scrutiny departmental data on compliance with land laws.

In addition to legislative and administrative reforms, judicial reforms can go a long way towards reducing the pendency of land litigation in India. The first step in this direction would be the implementation of key recommendations of the Law Commission.27 These include:

  • Changing the base for determining sanctioned posts for judges from ‘Judge: Population Ratio’ to ‘Rate of Disposal Method
  • Filling up all existing vacancies
  • Increasing the retirement age of subordinate judges to 62; and those of  High Court and Supreme Court judges to 65 and 68 years respectively.
  • Greater financial allocations to the lower and higher judiciary, to enable infrastructure, technical and skills upgradation

Some states like Bihar have created separate land tribunals for expeditious resolution of land revenue cases. This model should be studied, and if found effective, should be replicated in other states.

Conclusion

Land conflict in India, both legal and extralegal, has existed from colonial times because of the imposition by the British state of the notion that all land not privately held belongs to the ‘state’. This concept has been continuously resisted by the ‘people’ who were disempowered by the colonial state’s deprivation of their legal property rights under precolonial administration. Over time, competing ‘state’ and ‘people’ narratives over land have led to conflicting policy and legal interventions. This has, in turn, led to legal disputes over land. Even when laws are clear, administrative failure to comply with the rule of law, due to unwillingness and incapacity, contributes to the incidence and pendency of land disputes. Serious judicial incapacity in turn prolongs pendency of land disputes.

Due to the increasing population pressure on land, and the corresponding demand for land to fuel the development engine, the scale and scope of land conflict today has assumed gigantic proportions, stalling development projects and threatening livelihoods and investments. Equitable and efficient intergenerational management of land is necessary not just for India’s economic development, but also for its political and social stability. Therefore, working towards resolving land conflict, in light of the above policy recommendations, is an imperative agenda for the new government.

Other pieces as part of CPR’s policy document, ‘Policy Challenges – 2019-2024’ can be accessed below:

1 Land Conflict Watch, https://www.landconflictwatch.org/.
2 This is based on preliminary findings from a CPR Land Rights Initiative study, and is also consistent with findings from a comprehensive quantitative study of the Supreme Court’s caseload between 1993 and 2011. See Nick Robinson, ‘A Quantitative Analysis of the Indian Supreme Court’s Workload’, Journal of Empirical Legal Studies,10(3) (2003): 570-601.
3 Daksh, ‘Access to Justice Survey, 2016’, http://dakshindia.org/wp-content/uploads/2016/05/Daksh-access-to-justice….
4 Namita Wahi et al., ‘Land Acquisition in India: A Review of Supreme Court Cases from 1950 to 2016’ (New Delhi: CPR, 2017).
5 Articles 294 and 295 of the Indian Constitution stipulate that the Indian state succeeds to all property, claims and assets of the British state.
6 B.H. Baden Powell, The Land Systems of British India (Oxford University Press: 1892); B.H. Baden Powell, A Manual of Jurisprudence for Forest Officers Being a Treatise on Forest Laws (Calcutta, 1882).
7 An LRI study estimates that there are 102 laws of land acquisition alone, including state amendments to the Land Acquisition Act, 1894. Supra note 4.
8 ‘Land Conflicts in India: An Interim Analysis’, https://rightsandresources.org/en/publication/land-conflicts-india-inter….
9 Article 244(1) and Article 244(2), read with the Fifth and Sixth Schedules respectively, create special protections for land rights of Scheduled Tribes in geographically demarcated areas, known as Scheduled Areas.
10 Starting with the Bengal Tenancy Act, 1885, almost each agrarian state has laws protecting tenancy rights. Similarly, the Forest Rights Act, 2006, recognizes land rights of Scheduled Tribes and other forest dwelling communities.
11 A prolonged movement has sought the enactment of a Fishing Rights Act, along the lines of the Forest Rights Act.
12 86.21% of all land holdings in India are small and marginal holdings taken together (0.00-2.00 ha). See Census of India.
13 Nitin Sethi et al., ‘Modi government plans more draconian version of colonial-era Indian Forest Act’, The Wire, 21 March 2019, https://thewire.in/rights/modi-government-plans-more-draconian-version-o…
14 These include the states of Tamil Nadu, Gujarat, Rajasthan, Maharashtra, Telangana, Andhra Pradesh and Jharkhand. See Namita Wahi, ‘How central and state governments diluted the historic land legislation of 2013’, The Economic Times https://economictimes.indiatimes.com/news/politics-and-nation/how-centra….
15 Jairam Ramesh et al., Legislating for Justice: The Making of the 2013 Land Acquisition Law (New Delhi: Oxford University Press, 2015); Namita Wahi, ‘The Story of Jairam Rajya’ India Today, June 2015, https://www.indiatoday.in/magazine/books/story/20150622-jairam-ramesh-la….
16 Ongoing LRI study on ‘One Thousand Land Laws’.
17 Article 246 read with the Seventh Schedule of the Constitution of India.
18 CPR ‘Land Laws’ Database; see: https://www.cnbctv18.com/legal/hundreds-of-indian-land-laws-cause-confus….
19 Wahi et al., ‘Land Acquisition in India’.
20 Ibid. p. 28.
21 Sections 61-64 of the Indian Evidence Act, 1872, emphasize that documents must be proved by primary evidence, that is, presentation of the document itself. However, many people with legally recognized land rights do not have documentary proof for the same. This makes judicial resolution of land disputes extremely difficult.
22 Much of the northeastern part of India, including the state of Assam, has never been fully surveyed. The last full land survey for the state of Bihar happened in 1950s-1960s.
23 Former Minister for Rural Development notes that the state’s failure to fairly compensate those who lost land under the 1894 Act arose due to inaccurate land records, rampant undervaluation of sale deeds, and absence of land markets in many rural areas. See Ramesh et al., Legislating for Justice.
24 Two reports – the 245th Law Commission Report on ‘Arrears and Backlog: Creating Additional Judicial (Wo)man) power’ (2014), http://lawcommissionofindia.nic.in/reports/Report_No.245.pdf, and the 230th Law Commission Report on ‘Reforms in the Judiciary: Some Suggestions’, http://lawcommissionofindia.nic.in/reports/report230.pdf – highlight this as a major cause for disputes.
25 Ibid.
26 Bina Agarwal, ‘Gender and Legal Rights in Agricultural Land in India’, Economic and Political Weekly A39 30(12) (March 1995).
27 Supra note 24. (Q: Pl give direct source)
28 245th Law Commission Report, 29.

Picture of a landscape in rural India

Land conflict rampant in India because Constitution has made sparse reference to it

Published on By Namita Wahi

This piece was originally published in the Print, on 28 February 2020.

Land conflict, which fundamentally threatens the social contract that binds us together as a nation, is ubiquitous in India today. An estimated seven million Indians are affected by on-ground conflict over 2.5 million hectares of land, which threatens investments worth $200 billion. Land disputes clog all levels of courts in India, accounting for the largest set of cases in absolute numbers and judicial pendency.

The Centre for Policy Research-Land Rights Initiative (CPR-LRI) estimates that a quarter of the total number of cases decided by the Supreme Court over the past 70 years involved land disputes, of which a third pertained to land acquisition.

Scant references to land

A Constitution as ponderous as India’s is surprisingly sparse in its reference to land. Spread over 395 articles in 22 parts and eight schedules at the time of its formation, the original Indian Constitution mentioned “land” in only four parts.

First, in Part III, with reference to the now abolished fundamental right to property embodied in Articles 19(1)(f) and Article 31, which recognised the rights of all citizens to “acquire, hold, and dispose of property”, and provided constitutional safeguards against the exercise of the state’s power of eminent domain.

Second, in Part X, read with the Fifth and Sixth Schedules to the Constitution, while referring to geographically demarcated areas for Scheduled Tribes called “Scheduled Areas”. LRI estimates that 13 per cent of India’s geographical area falls within Scheduled Areas in 14 states today.

Third, in Part XI, read with the Seventh Schedule to the Constitution, with reference to the distribution of legislative powers between Parliament and state legislatures. “Land” was identified as a state subject, while many subjects pertaining to land, were included in the Concurrent List, on which both Parliament and state assemblies can legislate. LRI’s Mapping Indian Land Laws project has compiled over a thousand original and active central, and state laws pertaining to land.

Finally, in the “succession clause” embodied in Part XII of the Constitution, which provided for the Indian government’s succession to all obligations and entitlements of the British government with respect to contracts, property and assets, including land.

These sparse references to “land” in the original Constitution are surprising for two reasons.

First, at the time the Constitution was drafted, an estimated 80 per cent of all Indians were dependent on land for their livelihood, and more than half of India’s Gross Domestic Product (GDP) came from agriculture and allied rural occupations. Second, not only had land conflict punctuated two hundred years of British rule in India but “land” had also been central to the independence movement’s struggle to establish a new social and economic order premised on rapid economic development and social redistribution, even as Indians sought to control their political destiny.

Legitimising state’s power over people

Admittedly, the fundamental right to property was one of the most contentious provisions in the drafting of the Indian Constitution. The debate on Article 31 began early in the Constituent Assembly, even while the terms of independence were being worked out, culminating two-and-a-half years later in a cumbersome compromise clause. This clause legitimised the state’s power to forcibly acquire property, including land, pursuant to a validly enacted law, for a “public purpose”, and upon payment of “just compensation”.

Subsequent amendments to the Constitution eviscerated Article 31 of its content, until it was eventually abolished by the 44th constitutional amendment in 1978. The same amendment inserted Article 300A, which removed the constitutional safeguards of “public purpose” and “just compensation” from the exercise of the state’s power of eminent domain. Done ostensibly to aid the state’s redistributive agenda, the period since the abolition of the “fundamental right to property” has in fact seen a far greater increase in economic inequalities and “land grabs” than when the right was intact.

The Constituent Assembly debates on creation of “Scheduled Areas” were less contentious than the debate on the fundamental right to property. This was possibly because the voices of Scheduled Tribe representatives highlighting the special relationship Adivasis with land, and the need for their development according to their own genius, were effectively drowned by the dominant statist and integrationist discourse in the Assembly. Unsurprisingly then, despite being the only group in the Constitution with special land rights, STs constitute the group that has been most displaced since Independence.

Of course, discussions on the rights of other forest-dwelling communities, cattle grazers, and fisherfolk are conspicuous by their absence. Instead, the deceptively innocuous succession clause in Part XII of the Constitution constitutionalised the British state’s illegal appropriation of “people’s” lands by allowing the Indian state to take over all land and property claimed by the former. Moreover, less contentious was the debate on Article 19(1)(f), which gave hitherto disempowered groups such as women and Dalits the right to acquire or inherit property in land.

A flawed architecture for modern India

70 years since Independence, though the contributions of agriculture and allied rural occupations have shrunk to a quarter of India’s GDP, almost 60 per cent of the country’s population is still dependent upon land, primarily agriculture, for livelihood.

After many arduous struggles, laws like the Hindu Succession Act, 1956 and particularly its amendments post millennium; the Forest Rights Act, 2006; the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, have legally recognised the property rights of women, forest-dwellers, tenants, sharecroppers, fisherfolk, and cattle grazers. But these laws continue to be negated by a contrary legal regime of land alienation and inheritance laws, land acquisition, forests, and mining laws that after 1978 must no longer comply with fundamental property rights guarantees.

At a time when “erosion of civil liberties” has been cited as the reason for India’s steep slide down The Economist Intelligence Unit’s 2019 Democracy Index, the history of constitutional guarantees on land is a sobering reminder of how weighted the power of the postcolonial state was against the rights of “we the people” at the Constitution’s founding. This also calls attention to how the systematic evisceration of these limited constitutional protections have brought us to a situation where the wealth of top nine Indian billionaires is comparable to the wealth of the bottom 50 per cent of the Indian population.

The founders and architects of modern India had a robust vision for our “republic”, even as they endowed us with a flawed architecture for its realisation. As inequalities sharpen the divide between Indians, and land conflict continues to grow, in the immortal words of Benjamin Franklin, the odds are piling up against our ability to “keep it”.

Peace of Land: A Woman’s Right to Safety May Depend on Her Right to Own Property

Published on By Shipra Deo

The surreal times of COVID-19 have emerged in the context of a lot of pre-existing challenges. One such challenge is the enormous violence that women encounter all the time – because of their gender.

Several years ago while conducting a workshop with a group of women leaders from Uttar Pradesh, I met Farzana. She was a participant and had been mostly silent throughout. On the third day of the workshop she finally mustered the courage to share her story.

Farzana had come home to find her 9-year-old daughter crying helplessly, covered with bruises, and lying in a pool of blood. She had been raped by a family member – the son of her husband’s elder brother. 

Farzana called her husband, who worked in Dubai, to share her pain and seek advice. To her shock, her husband blamed her for her daughter’s rape. He told her to remain quiet about the incident and refused even to allow Farzana to take their daughter to the hospital for treatment.

Farzana couldn’t bear the thought of living in the same house again and went to stay with her parents. But she wasn’t welcome – she and her daughter were a burden, financial and reputational. 

A few days later, her in-laws offered her INR 50,000 (about $660 USD) to settle the matter. To Farzana, it felt as though her dignity and self-respect were being bought! But, not wanting to stay in the house where the attack happened and not being welcome in her parents’ home, what else could she have done other than accept the offer?

Since then, Farzana hasn’t been able to look at herself without feeling disgraced or humiliated. She and her daughter were stripped of their humanity, womanhood and justice – to serve family honor. As she closed her story, she said with tears in her eyes, “This settlement is one thing in my life which I regret the most.  My tears today make me realize I am still human!” 

Unfortunately, Farzana’s story is not unique.  For far too many women, violence is a horrifying reality throughout their lives.

An epidemic of violence

Globally, 1 in 3 women experience either physical or sexual violence at some point in their lives, and in most of the cases women know the perpetrator.

Thousands of cases similar to Farzana’s daughter go unreported.

Amid the COVID-19 crisis we are seeing a “horrifying global surge in domestic violence.”

Ironically, this surge is tied to good intentions to keep women and girls safe from the spread of the virus. 

Lockdowns have been widely used to stop the spread of the virus, but for many women and girls, lockdown means they are trapped at home with abusive spouses, partners and family members with limited access to support services, if any. Just as we take urgent measures to stop the spread of COVID-19, it’s important to recognize that gender-based violence (GBV) is another epidemic – a global crisis that has been hidden for far too long. COVID-19 is laying the scale and scope of the problem bare. 

To address the crisis of GBV, we first need to ask ourselves why so many women are subject to such treatment.  

The answer is rooted in structural gender inequalities based on deeply entrenched discriminatory social norms and customary practices that prohibit women from having the same opportunities and resources as men.

This discrimination is clear when it comes to the ownership and control of land. Exact data is not available anywhere, but roughly only 7-13% of women in India own land – about 1 in 10.

Women face legal challenges, family pressures and even violence when they attempt to exercise land rights.  Violence is frequently used to keep them away from owning resources, to sustain inequality, and to keep them subjugated. 

One study from Kerala found that 7% of women who owned a house and land experienced physical violence. When women owned neither, 49% reported experiencing physical violence.

Unfortunately, generation after generation, women have lived without the security and the safety that comes from owning land.  

The gender-specific biases that hamper women’s rights to land also extend to laws regulating land allocation, leasing, acquisition, and inheritance.  And those in charge of designing and implementing our land laws and policies are often subject to the same gender-specific biases. 

Dismantling these biases and removing obstacles for women to own land is the core focus of my work at Landesa, and it’s essential to addressing a root cause of GBV.

Fortunately, the power to make these changes is within our grasp. There are several steps we can take to improve conditions for women and girls.

First, we need to review and amend laws to remove overt and covert discrimination.

Next, we need to make sure government officials and elected leaders who play a role in designing policies and their implementation understand women’s rights and their importance. 

We need to help women know their rights and support them in asserting these rights. 

We also need to improve data collection to track levels of violence and disputes over land that lead to violence against women. 

But more than anything else we need to take focused steps – including public campaigns – to shift mindsets that forbid women from owning land. 

The power of women’s land

Is a different future possible?  The answer is yes. 

I happened to talk to Farzana again recently. She was excited to tell me that through years of saving and earning she had been able to purchase a piece of land. 

She told me, “If I had this land back then, I would not have had to make that compromise. I could have moved out and lived there in a thatched hut with my daughter.”

In fact, the more I listen to women – as they talk about their past experiences, their present needs and their hopes for the future – the more confident I become that a piece of land has the power to break this cycle of oppression and lift women up, empowering them to live a life of dignity, autonomy and self-worth.

The power that women derive from land ownership is not just about having their names on a piece of paper. The real power of a woman’s land ownership is that it creates a strong foundation for her to be more resilient, to have better choices and to have increased ability to decide her future.