Category Archives: Inclusive Society

Landscape of urban slums in Mumbai, India

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

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

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

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:


Land Conflict Watch, https://www.landconflictwatch.org/.
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.
Daksh, ‘Access to Justice Survey, 2016’, http://dakshindia.org/wp-content/uploads/2016/05/Daksh-access-to-justice….
Namita Wahi et al., ‘Land Acquisition in India: A Review of Supreme Court Cases from 1950 to 2016’ (New Delhi: CPR, 2017).
Articles 294 and 295 of the Indian Constitution stipulate that the Indian state succeeds to all property, claims and assets of the British state.
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).
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.
‘Land Conflicts in India: An Interim Analysis’, https://rightsandresources.org/en/publication/land-conflicts-india-inter….
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.

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

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.

Are slums more vulnerable to the COVID-19 pandemic: Evidence from Mumbai

India has been highly susceptible to the spread of pandemics. The 1918 pandemic caused devastation across the country, with an excess mortality of 4.5%. While a century has passed since then, the present conditions of dense living and a weak public healthcare system makes the possibility of the rapid spread of the current COVID-19 pandemic and heavy loss of life very real. Crowded and poorer areas, where it is difficult for people to safeguard themselves against getting infected, are likely to see worse outcomes. The case of New York City, where poorer neighbourhoods saw disproportionately more deaths and cases, attests to this. The situation is going to be similar, if not worse, for cities in developing countries like India.

Slums constitute 17% of urban households in India; in Mumbai itself, they make up 42% of the households. Slums in Mumbai are extremely crowded — often with many people staying in a single room. These areas also lack necessary amenities like private toilets and availability of clean water, making it easy for outbreaks to spread. Ideally, examining the relationship between slums and COVID-19 outbreaks would involve looking at the number of infected cases within and around slums. However, this data has not been made available. Therefore, we undertake a spatial analysis based on the location of Containment Zones within the city.

The Ministry of Health, Government of India has described a ‘Containment Zone’ as a “defined geographic area” where a “large outbreak” of positive COVID-19 cases are found and which is, therefore, sealed by the government. While there is no specification about the threshold number of cases in an area to declare it a Containment Zone, a “large outbreak” indicates that the number of cases in the containment zones must be high.

This concept forms the backbone of the ‘Containment Plan for Large Outbreaks’ of the Ministry of Health, which aims to geographically confine the disease by enforcing strict physical distancing norms, geographic quarantine, active surveillance, increased testing, isolation of positive cases and contact tracing. In a Containment Zone, no outdoor activities are allowed by the authorities.[1]

Containment Zones in Mumbai

On March 31, 2020, the Municipal Corporation of Greater Mumbai (MCGM) declared 141 Containment Zones in the city. By April 5, this number had increased to 243 in the Greater Mumbai area. As of April 14, at 5 pm IST, the number of Containment Zones was 490. This article uses spatial data released by the MCGM for 490 Containment Zones, using their epicenters for the analysis.

Figure 1 shows the locations designated as epicenters of Containment Zones. Each Containment Zone — designated as an orange or red zone — covers a radius of a certain distance around the containment epicenter.[2] The blue markers indicate that the containment areas are individual structures that have COVID-19 cases. We do not have the precise classification for demarcating a zone as red or orange. MCGM has stated that red zones are “severe” and orange zones are “less severe”.

Figure 1. Epicentre of COVID-19 Containment Zones in Mumbai as of April 14, 2020

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Source: Municipal Corporation of Greater Mumbai

To see whether Containment Zone epicenters are within or around slums, we overlay these on a layer of slum areas, as demarcated by various government authorities in Mumbai. One of the first cases of COVID-19 in a slum in Mumbai was identified on March 23 in Bainganwadi in the M-East Ward. Since then, many Containment Zones have been created in the slums of Mumbai.

Figures 2 and 3 show specific cases where the epicenter of a containment zone is close to or inside a slum area. Figure 2 depicts the case of Dharavi, where 47 cases were found (as of April 13, 2020[3], of which five have since died. Dharavi has four epicenters of red Containment Zones, one individual structure within the slum, and one in close proximity.

Figure 2. Epicentres of COVID-19 Containment Zones in and around Dharavi

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Note: The blue shapes in the map represent slums. Source: Municipal Corporation of Greater Mumbai for Containment Zones.

Figure 3 shows the epicentres of Containment Zones in Jogeshwari — a slum cluster in the north west suburb of Mumbai. This area has six epicentres of red Containment Zones, one epicentre of orange Containment Zones, and one individual structure.

Figure 3. Epicentre of COVID-19 Containment Zones in and around Jogeshwari

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Note : The blue shapes in the map represent slums. Source: Municipal Corporation of Greater Mumbai for Containment Zones.

While Dharavi has been in the limelight, Table 1 shows that most of Mumbai’s Containment Zones are close to slums. The distance has been calculated from the epicenter of the Containment Zone to the outer boundary of the nearest slum. Table 1 shows that around 30% of Containment Zone epicenters are within a slum. The orange and red Containment Zones, that have epicenters outside of a slum, could still partly pass through slums depending on their radii and distance to the nearest slum.

Table 1. Distance between Epicentres of Containment Zones and Nearest Slum

tab3

Figure 4 shows the frequency distribution of the number of Containment Zones (whose epicenters lie outside of slums) and distance to nearest slums.

Figure 4. Distribution of Distance from Epicentres of Containment Zones to the Nearest Slum

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Source: Authors’ calculations

The maximum distance between the epicenter of a Containment Zone and the nearest slum is 800 meters.

Caveats

These findings must be read with a few caveats. First, the population density in Mumbai — which is upwards of 26,000 persons per square kilometer — is generally high. We do not have the exact figures on densities within slums, and the maps do not convey how overcrowded the slums are. Mumbai also has the highest number of cases in the state of Maharashtra, and hence, a larger number of Containment Zones. Secondly, the data we have used is till April 14. The spread of the disease is rapid and the situation may change considerably between then and the time that this analysis is published. The Indian Council of Medical Research has been conservative about its testing strategy and number of tests. This means that we do not have an accurate idea of the actual spread of the disease; the number of infected cases and Containment Zones must be considered to be a lower bound of the number and spread of COVID-19. Finally, as mentioned above, we do not have a continuous measure of the number of cases within the Containment Zones, only a graded classification.

Next Steps

Our analysis reveals that several of the existing Containment Zones in Mumbai are within or very close to slums. The reason for this phenomenon is likely to be difficulties in maintaining social distancing or hygiene standards and shared communal facilities including toilets. There are clear policy implications for this. One hypothesis is that the lack of secure property rights given to slum dwellers holds them back from getting better access to amenities and housing, which reduces their ability to safeguard themselves against rapidly spreading infections. We would like to derive lessons for policy by studying whether the slums that are regularised have fewer outbreaks of COVID-19 infections.

Takeaways for policymakers

Slums in Mumbai have a number of disadvantages built into their fabric, and are witnessing a high number of COVID-19 cases, which makes these areas and their residents far more vulnerable than other urban clusters. It also points to the obvious limitations of the strategies that have widely and successfully been used elsewhere to combat the pandemic. Anecdotal evidence suggests that there is a lack of adherence to social distancing since people live in crowded quarters, lack of provision of clean water for hand washing, and a lack of availability of good quality masks – people resort to using just handkerchiefs to avoid pushback from the police. It is critical for policymakers to implement alternative and innovative measures to prevent further outbreaks in these areas which is home to millions of vulnerable and poor households.

[1] https://www.mohfw.gov.in/pdf/3ContainmentPlanforLargeOutbreaksofCOVID19Final.pdf

[2] Earlier reports stated that Containment Zones were 3 kilometers in radius. However, this is likely to have changed since then.

[3] https://www.indiatoday.in/india/story/4-new-covid-19-cases-including-one-death-in-dharavi-1666347-2020-04-13

The authors would like to thank Shreya Deb and Kadambari Shah for their comments.

 

This piece was original published on the Brookings website on 16 April 2020