Category Archives: Inclusive Society

An unlikely common strand of 2020 — land and property rights

Published on By Aparajita Bharti | Bindushree D

This 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

Published on By Sneha Pillai

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

Published on By PRRC India | The Nudge Foundation

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

Securing property and land rights in India

Published on By Shreya Deb, Omidyar Network 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

Published on By PRRC India

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.

End gender-based discrimination in the Hindu Succession Act

Published on By Devendra Damle

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)

 

 

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.

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.