Category Archives: Land Governance

Socio-cultural impediments to tribal women’s right of inheritance | Blog4Land by PRRC

Published on By VEDIKA MANYA SHIVAM

Socio-cultural impediments to tribal women’s right of inheritance | Blog4Land by PRRC

– VEDIKA MANYA SHIVAM

 

According to Article 17 of the Universal Declaration of Human Rights, “Everyone has the right to own property alone as well as in association with others; No one shall be arbitrarily deprived of his property.” The Human Rights Resolution 2005/25 calls for women to have equal access to, and ownership of, land. It also promotes the idea that everyone should have the same opportunity to own property and live in decent housing in order to reach their full potential. One of the most contentious rights is the right to property, particularly the right to inherit property, because it is linked to a country’s political, economic, cultural, and religious beliefs. Less than 2% of women in rural India inherit landed property. (Lahoti, 2016)

While women on the one hand have always been in the disadvantageous position in owning land or any type of property, tribal women in particular are structurally and socially deprived of this right. For instance, the Girasias, a tribal group in Rajasthan, use the fact that women relocate from their natal villages to their affinal villages after marriage to justify the lack of property ownership by women. (Unnithan,1997)

In primitive tribes, it is considered taboo for women to touch or use the plough. This deprives them of control over the means of production—the land. For instance, the traditional norms in the Oraon and Ho tribals of Jharkhand prevent women from holding the plough, thus denying them access to land. Here the role of taboo becomes evident for the lack of access to land for women. (Kishwar, 1987)

The tribal tradition or, to be more accurate, customary tribal law is one of the many issues that affect tribal women in Jharkhand. As per this customary law, that lineage, not an individual, owns the property in many indigenous tribes. Individual families are allowed to use the property, but it cannot be sold or otherwise transferred outside of the family. Due to this custom, it is viewed as inappropriate and at odds with the tribal ethos for women to express their desire for a share in land ownership. 

Marrying indigenous women is one method used by non-tribal people to obtain tribal land. This fear has been instilled in the minds of the tribes that inhibit them from transferring land ownership to tribal women. To corroborate this, K.S. Singh highlights the high rate of alienation of tribal land among the Hos of Singhbhum through marriage to tribal women. He also points out that often after such transactions the tribal women are deserted by non-tribal men. (Singh, 1988)

The economics of land size is also connected to opposition to women’s property rights. Arguments in favor of women’s entitlement will cause more land to be divided and fragmented, which will have a negative impact on the viability and efficiency of farms. (Xaxa, 2004)

According to a study by Shil and Jangir (2021), there are three different types of land ownership for tribal women: joint pattas on land, inherited property, and land purchased in their names. The findings revealed that 20 women (33 %) of the 59 married women in the sample from the rural West Tripura district have inherited property. 25 women, or 42% of the total, have been given joint pattas of forestland. Nine women (15%) remain in the Khash territory. None of the women have purchased land. This shows that the purchasing power of tribal women is very low and it is costing them their economic independence.

Women inherit different sorts of landed property, which also reflects gendered norms. Typically, women’s part of parental property is inferior land (Agarwal, 1994). Land is more likely to stay in the hands of the natal family in communities whose girls are permitted to marry within the immediate family or cross cousins. As a result, it is common in these communities for girls to inherit less property or to be required to work in the fields (Agarwal, 1994)

While positive changes on gender parity are taking place in non-tribal societies and mainstream media, the information on gender in tribal societies is scant. Given that some tribal communities like Lenape and Hopi are matrilineal, while others like Gond and Ho have a strong patriarchal influence, this diversity makes it challenging to draw generalizations about the status of women in India’s tribal communities as a whole. The best way to characterize what has been seen is as illustrative and heuristic.

Therefore even if the data or information on the trends and pattern of land ownership by tribal women  is not available, policymakers can try to address the socio-cultural aspects that are hindering the rights of women to be landowners.

Firstly, the tribal women can be nudged to marry outside their community or clan (not necessarily outside the tribe) so the ownership of land from the natal family is transferred to her as against only the cultivation rights she would receive if she marries within the community. This can be done by creating awareness about the increased risk of autosomal recessive genetic disorders that surface when people with highly similar ethnicity marry each other.

Women can more effectively establish their right to inherit owing to their understanding of legislation, legal rights, and administrative processes related to land claims. Education also improves a person’s self-confidence, awareness of new farming technologies and techniques and bargaining power. Therefore state-run schools and colleges in tribal areas should emphasize more on legal and financial literacy of women.

Along with gender sensitivity programs, focus should be on capacity building as advocated by nobel laureate Amartya Sen. Special courses in agriculture, revitalization of indigenous ways of farming with new technology should be offered to tribal women. This will help them take control of their land, life and livelihood.

 

References

 

Agarwal, B. (2003). Gender and land rights revisited: Exploring new prospects via the state, family and market. Journal of Agrarian Change, 3(1-2), 184-224. https://doi.org/10.1111/1471-0366.00054

Jassal, S. T. (2000). Book reviews and notices : MAYA UNNITHAN-KUMAR, identity, gender and poverty: New perspectives on caste and Tribe in Rajasthan. Oxford: Berghahn books, 1997. Contributions to Indian Sociology, 34(2), 287-288. https://doi.org/10.1177/006996670003400214

Kelkar, G., & Wangchuk, L. (2020). Women’s land use knowledge and entitlement in swidden agriculture. Women, Land & Power in Asia, 136-161. https://doi.org/10.4324/9780367818494-10

Kishwar, & Madhu. (1987). Toiling without Rights. Economic and Political Weekly.

Lahoti, R., & Swaminathan, H. (2015). Economic development and women’s labor force participation in India. Feminist Economics, 22(2), 168-195. https://doi.org/10.1080/13545701.2015.1066022

Shil, A., & Jangir, H. P. (2021). Exclusion of tribal women from property inheritance rights: A study of Tripuri women of India. CASTE / A Global Journal on Social Exclusion, 2(2), 327-340. https://doi.org/10.26812/caste.v2i2.317

Singh, K. S. (1988). Tribal Women: An Anthropological Perspective. Tribal Women.

Xaxa, V. (2004). Women and gender in the study of tribes in India. Indian Journal of Gender Studies, 11(3), 345-367. https://doi.org/10.1177/097152150401100304

This article is published under Blog4Land series by PRRC and the views expressed are of the author and PRRC does not endorse it. 

About the Author: Vedika is a Master’s student in Public Policy at Christ (Deemed to be University), Bengaluru.

Understanding Gender and Land Rights | Blog4Land by PRRC

Published on By Dhruvika Sodhi

Understanding Gender and Land Rights | Blog4Land by PRRC

– Dhruvika Sodhi

 

Schlager and Ostrom (1992) developed a conceptual schema for arraying property-rights regimes that distinguish among diverse bundles of rights. It distinguishes five types of property rights: the rights of (physical) access, withdrawal, management, exclusion, and alienation. If we adopt a gender lens in exploring how property rights have been distributed, we find disparities in the distribution, recognition, and implementation of rights. 

Women have been at large excluded as rightful land title holders, depriving them of a tangible element of empowerment and social-economic justice. Men have been recognized as the rightful head of the household, and for a long time, there had been an almost normalized silence on the question of women having a rightful access to property ownership. The perpetuation of identifying the ‘man’ as the only socially and lawfully recognized figure to represent the household has historically undermined social-economic justice. 

Land is a valuable asset. Land provides security to households worldwide. Land particuarly holds significant importance in largely agrarian and developing countries like India. It is the most valued form of property and productive resource. As a result of its tangibility and longevity, land ownership is considered the biggest security against poverty (Agarwal,2002). However, land ownership as a measure of wealth is calculated in a skewed way and surveys conducted to measure property to define the household’s wealth remain largely gender-blind. 

A large proportion of women are dependent on agriculture for livelihood, and that creates their inseparable relationship with the land. Compared to men, women acquire mobility slowly, work harder, and earn less money. In developing countries like India, there has been an upward trend in rural-to-urban migration dominated by men, leaving the female behind to take care of the household. However, this poses a challenge for women because they lack land titles. 

Effective and independent land rights for women are important on at least four counts: welfare, efficiency, equality, and empowerment (Agarwal, 2009). Studies and research have shown that where there is a higher proportion of land owned by women or other assets by women, the place performs better on socio-economic indicators. When women are completely deprived of any stakeholder position, there is more distress and poverty. In addition to incentivizing women to work as farmers and producers and to serve as empowerment agents, land titles in women’s names increases their active participation and decision-making, especially when men are increasingly out-migrating. Quisumbing (1996) writes about the increase in output and productivity of land if women farmers are given the same input and resources as male farmers. Land titles bring one kind of equality essential for having a just-gender sensitive empowering society. For women, especially, it brings affirmation, recognition, and inclusion in a society that has placed them on the fringe for generations.

There have been several outstanding incidents that reaffirm the claim for granting equal land rights to women.  “Aurat, Harijan Aur Mazdoor, Nahin Rahenge Ab Majboor!”—The Bodhgaya Land Movement headed by J P Narayan became an exemplary land movement representing Bahujan agricultural labors. After persistent demands for land titles from the women, the land was granted to them. They were fighting against oppression conducted by the upper castes. They felt it necessary to fight the oppression within their community for equality and economic autonomy. The women who succeeded fared much better than the men who held most of the farming lands. 

There are three major ways by which women can gain land: inheritance, government, and market. In India, 86% of the arable land is privately held, thus making having a gender-equal inheritance law extremely crucial (Agarwal,2002). However, in practice, women hardly get the land in inheritance, and the proportion of the land inherited in the name of women is abysmally low. In the case of government transfers, resettlement land and reform programs are invariably made in the name of the men in the household, thus depriving women of a fair share of their land rights and creating a system that generates discrimination. Markets, too, occupy a very small place that can enable the generation of equitable land transferse. 

The implementation of inheritance laws has been poor, and the social bias toward having a patrilineal society also influences administrative functioning. When women seek land rights or a claim in inheritance, she is often demonized and chastised by society, and at times, even by their own family. The hegemony established by creating customs, traditions, social conventions, and rituals that limit the places women can occupy in society robs them of their power of independence. By contrasting and comparing the social realities in matrilineal societies, it can be examined how and why such a social bias can lead to such inequalities. As matrilineal societies reflect alternative realities, it can help us identify the faultlines in highly patriarchal systems. 

To have an effective land rights mechanism, changes are required at different places to enable a result reflecting enhanced gender equality. To have effective policies, it is imperative to have changes in the foundations of rules and documentation. The documented information should also be gender-disaggregated at the intra-household level (Agarwal,2002). This can inform better legal reforms that can enhance the goal of equal land rights. Laws should not only be made on paper but a serious effort ought to be made to educate the population about these laws and expand their accessibility to claim rights and seek justice. The hegemony that shapes the structure also influences the agency of stakeholders. This hegemony has to be constantly challenged to understand the visible and invisible power structures that are so socially embedded. Active interventions that are creative, inclusive, and flexible should be made to enable capacities among women to challenge the hegemony and bring the empowerment they need to claim land rights, among other things. Several institutional formal and informal reforms and interventions are required to lead the rebuilding of social and economic support structures to strengthen women’s bargaining positions. Most importantly, there’s a need for  strong cooperation among women and people that are sensitive to class, caste, and status differences. This should help create a counter-hegemonic discourse that can challenge the existing norms around property rights. 

 

References: 

  • Agarwal, B. (2002). Are we not peasants too? Land rights and women’s claims in India.
  • Schippers, M. (2007). Recovering the feminine other: Masculinity, femininity, and gender hegemony. Theory and Society, 36(1), 85-102.
  • Quisumbing, A. (1996): “Male-Female Differences in Agricultural Productivity: Methodological Issues and Empirical Evidence,” World Development 24 (10): 1579–1595.

This article is published under Blog4Land series by PRRC and the views expressed are of the author and PRRC does not endorse it. 

About the Author: Dhruvika is a social science student with a strong interdisciplinary background. She holds a BA in political science and history. Her passion for seeking constructive and critical thinking enabled her to pursue a post-graduation in Environment and Development studies. She intends to further pursue her research in Land Rights and Gender.

The chaos of gendered language and land: Taking a lesson from cricket

Published on By Shipra Deo And Robert Mitchell, Landesa

The chaos of gendered language and land: Taking a lesson from cricket

Shipra Deo and Robert Mitchell

Recently, as India swelled with pride to see the first woman belonging to the Scheduled Tribe community become President, it also witnessed an unexpected chaos stemming from the use of gendered language. In Hindi, the word for President is the masculine word Rashtrapati, which literally means “Head of the Nation.” The suffix pati is commonly used to mean “husband” and can also denote that one is the owner of something. In a bid to use a feminine equivalent, a member of Parliament unwittingly referred to her as Rashtra-patni (meaning “Wife of the Nation”). The linguistic flub resulted in huge protests and adjournment of Parliament followed by a letter of apology. 

As recently as 2021 Iran debated the idea of women being allowed to contest presidential elections. The Constitution of the Islamic Republic of Iran stipulates that the president should be chosen from among the political and religious rijals (meaning “men”) and the Constitutional Council of Iran, which is comprised solely of men, took the word at face value, consequently denying women the right to become president.

These instances received attention since they involve the highest national offices, but such language confusion is by no means unusual. 

In her book  “Madam Sir,” Manjari Jharuar, the first woman police officer in the top echelons of Bihar, mentions how her appointment gave rise to a peculiar confusion in the subordinate ranks who had always addressed superior officers as Sir. After struggling for some time, the junior officers found their ease addressing her as Madam Sir.

The gendered language that we use is set for a “default” world in which men are presumed to be the dominant actors. But these linguistic choices often produce social consequences that damage and limit the identity, dignity and equal opportunities for women.

Since language is fundamental to thoughts, several scholars have argued that the language we speak also shapes our thoughts in subtle, subconscious ways. A study by The World Bank has noted that the very structure of language may limit women’s opportunities by reinforcing gendered ideology and strengthening male-centered gender norms. 

The ecosystem of land governance is not immune to this influence of language. The intentional bias that gives men an advantage in securing land tenure is another story, but the gendered language of land laws is both more subtle and equally harmful. 

Land laws in India consistently use masculine pronouns and very often refer to men as the primary or exclusive legal subjects. The actors involved in land use and land administration – the District Collector, the revenue official, the landowner, the sharecropper and the tenure holder – are routinely referred to as men throughout the land laws. By way of example, a word count of the Chota Nagpur Tenancy Act that governs land in the State of Jharkhand, reveals that the Act uses the pronouns “he” 177 times and “his” 276 times, while the pronoun “she” is not used anywhere and ”her” is used only once. 

The revenue law in the State of Uttar Pradesh offers another striking example. When the law describes the eligibility criteria for landless people to receive grants of public land, it says “preference shall be given to a person who either holds no house or has insufficient accommodation considering the requirements of his family.” By saying “his” family, the law presumes that the head of the family is always a man.  Similarly, while providing for the issuance of joint titles for any land allocated by the State, the law says that “if allottee is a married man and his wife is alive, she shall be owner of equal share in the land so allotted.” Thus, even while granting a wife the same share as her husband, the law invites the reader to understand that the primary allottee of the land is by default a man. 

While many may respond that the masculine pronouns ‘he’ and ‘his’ are intended to refer to men and women both, several studies show that masculine pronouns lead to male-based mental imagery in both the communicator and the audience. When such gendered language is used in legal discourse, it systemically excludes, devalues and trivialises women and people of other genders.  The fact that this effect operates below the level of consciousness makes it all the more worrying.

However, languages do evolve, and the direction of their evolution can be shaped by both individual choices and the conscious decisions of responsible agencies. In one robust example, as early as 1947, Hansa Mehta of India played a key role in changing the phrase “All men are born free and equal” to ”All human beings are born free and equal” in Article 1 of the Universal Declaration of Human Rights. 

Another encouraging example comes from cricket. In September 2021 the International Cricket Council replaced the term “batsman/batsmen” with the gender-neutral term “batter” to make the sport gender-inclusive and more welcoming to women players. 

There is some good guidance and resources  available which can be helpful in transitioning to a gender-neutral language, particularly in legal texts. 

As India celebrates its 75th Independence Day and strives for gender equality, it is only logical to take inspiration from cricket and break a norm which has no good reason to be followed, for otherwise our children will be speaking the same language.

Shipra Deo is Director of Women’s Land Rights, India and Robert Mitchell is Asia Region Sr. Director at Landesa. This article was originally published in Hindustan Times on Aug 26, 2022.

Why PMAY-U fails to address India’s intrinsic housing problems

Published on By Prerna Prabhakar, NCAER

Why PMAY-U fails to address India’s intrinsic housing problems

By Prerna Prabhakar

At a recent event, Prime Minister Narendra Modi gave away keys to seventy five thousand beneficiaries of the Pradhan Mantri Awas Yojana — Urban (PMAY-U) in Uttar Pradesh. Though it is a welcome and much needed move, the overall pace of delivery under PMAY-U has been rather slow. As of October 11, 2021, just around 50% of the 114 lakh sanctioned houses have been completed. In the process, ₹97,000 crore has already been incurred. 

At this point, it is imperative to think about the contribution of this scheme in addressing the intrinsic housing problem in India. It is natural for many to ask — with a huge central assistance commitment of ₹1.8 lakh crore, has this scheme achieved the desired goal so far, in terms of meeting the affordable housing demand? Is the PMAY-U’s subsidy burden a matter of concern?

PMAY-U’s Credit Linked subsidy scheme (CLSS) component offers interest rate subvention on housing loans borrowed by the Economically Weaker Section (EWS), low and middle income groups. However, the subvention amount is insufficient for private housing in major urban centres of tier-I cities. After all, tier-I cities are characterized by high housing prices.

Shifting our focus to government driven EWS projects, we see two particular issues around them. Firstly, these projects are mainly located in the periphery of cities, far away from the city’s key economic centres. Secondly, these places are marked by a general lack of transport connectivity and other infrastructure facilities. This combination results in a lack of takers for these housing units. As a result, these units usually remain unpurchased for years on a stretch.

The CLSS component has a visible fiscal impact in the form of a subsidy burden. However, in typical EWS housing projects, especially the ones built by the state governments and city authorities, CLSS subvention is not the only cost that the government has to incur. For instance, a EWS housing unit in Narela in Delhi is priced at ₹5-6 Lakh. This hides the fact that the construction cost of such a typical unit alone amounts to ₹6 lakh. While scale does reduce cost of works, the price ceiling of ₹6 lakh indicates a broader cost factor being ignored as labour and capital costs are not being accounted for. These are what would essentially count as state level subsidies that eventually add up to national debt.

While PMAY-U is delivering housing for the poor, an emerging economy like India has also to be aware of fiscally viable options for reforming the housing market to address the intrinsic housing problems. The scheme can be avoided from becoming a white elephant, provided suitable steps are undertaken to solve these deep rooted issues associated with the housing market in the country.

A prime reason behind the lack of affordable housing supply is high land prices. Appropriate policy changes to address this problem are likely to form the core of the solution. The logical step thus would be conceiving ways whereby land prices can be checked. This can happen with a three pronged approach – ensuring adequate supply of land for residential purposes; ensuring policies to guarantee the efficient use of this land for developing housing units; and reducing transaction costs associated with land/property purchase.

For maintaining adequate supply of land, it is imperative that necessary changes in land use change policies are introduced at the state level. In most Indian states, multiple levels of No Objection Certificates (NOCs) are necessary for land use conversion. This complex and cost intensive process results in pushing up land prices. Many states like Gujarat and Karnataka have started to make the right moves in this direction through innovations such as the multipurpose NA certification approach or initiating online land use conversion processes. Such efforts can be replicated by other states. Another possible measure towards addressing the issue of land use change is designating specific land parcels for real estate developers in the states’ land banks, which will save them the time, effort and cost associated with land use change processes.

Floor Space index (FSI) regulations are another elephant in the room. For areas characterized with high land prices and less land availability, a high FSI helps fill the void to an extent. However, in most Indian cities, FSI is always maintained on a lower side (1 -2), with strict regulations on increases. Mumbai is the sole exception in this regard where the maximum permissible FSI is 4.5. When compared to FSI in other major Asian cities like Shanghai (FSI is 13) and Singapore (FSI is 25), one sees that there is much more that can be done.

Transaction costs associated with land/property purchasing also adds to the hidden costs of affordable housing. These would include different forms of fees like stamp duty, registration fee, lawyer and real estate agent’s fees. According to Global Property Guide, India has one of the highest transaction costs of housing, going up to 15 %. Compared to its immediate ASEAN neighbours like Thailand (14%) and Malaysia (8%), we see the room to fix this anomaly.

PMAY-U is certainly filling an important gap in India on the affordable housing front. However, given the overall fiscal implications for India, measures are certainly needed to ensure prudence and seek permanent solutions.

Prerna Prabhakar is an Associate Fellow at the National Council of Applied Economic Research (NCAER). The views expressed in this article are personal.

A Protest In West Bihar Shows How Un-surveyed Land Leaves Residents Vulnerable

Published on By Nihar Gokhale

Eight Indian states and two UTs have areas that have not been surveyed by the state government. People living and working on these lands have no land titles and hence no protection from displacement

By Nihar Gokhale |27 Aug 2021
This article was originally published in IndiaSpend 

New Delhi: On May 30, 2021, as India reeled under the second wave of the pandemic, a team of surveyors from Bihar’s revenue department landed up in the western town of Chhapra. At a street near the city municipality building, where the state government has proposed a new flyover, the officials measured the land where shops and homes would be demolished to make way for the construction.

About 35 people who live and work in these buildings came out to protest. The government had not offered them any compensation for the loss of land, they argued. But this was unsurveyed land and hence public property, the team retorted.

“We have been here for generations,” said Atul Kumar, one of the protesters whose house and metal fabrication workshop are marked for demolition. “And now they are just asking us to leave without any compensation.”

Bihar is among the eight Indian states–and two Union territories (including Delhi)–that have not surveyed significant parts of their geographical area–ranging from 2% in Rajasthan to 75% in Delhi–according to data compiled in 2020 by the National Council for Applied Economic Research. Among the states, Bihar has the highest proportion of such unsurveyed land–20% of its area or 18,832 sq km, equivalent to the state of Nagaland. Most unsurveyed land lies in urban areas in India, according to the NCAER study.

In over a decade, the Union government’s Digital India Land Records Modernization Programme, which seeks to provide states with financial and technical help to update and digitise land records, has been able to carry out surveys on just 3% of the total geographical area of the country. In 2020, the government launched the SVAMITVA programme to survey residential areas in rural areas but this mission leaves out urban areas.

Why have so many areas in India been left unsurveyed and how does this leave people vulnerable to eviction without any compensation? For answers to these questions, we take a close look at Chhapra’s case.

To begin with, only farms

Andaman and Nicobar Islands, Bihar, Haryana, Karnataka, Manipur, Delhi, Rajasthan, Punjab, Telangana and West Bengal lack records for parts of their land area, according to the NCAER, which obtained the information from state governments as a part of its effort to create a Land Records Services Index that measures the quality of state land records. The data on unsurveyed land relate to only unforested areas.

There are different reasons for why various regions remained surveyed, many of them going back to the time the British administered India. While initial land surveys in India date back to the Mughal Empire, the most prominent ones were carried out by the colonial government in the late 19th and early 20th century, according to a report of the department of land resources under the Ministry of Rural Development.

But the British only surveyed agricultural lands, leaving out inhabited areas of villages and cities as well as forests, said Deepak Sanan, a retired Indian Administrative Service officer and lead author of the NCAER study. “The point [for the British] was to survey areas from where land revenue came,” he said.

After India adopted its Constitution in 1950, the maintenance of land records became the state governments’ responsibility. They were supposed to survey all the lands again but the pace of this work varied, often grinding to a near-halt in some states, Sanan said.

Slopes, mining zones, riverine lands excluded

As a United Nations Development Programme report found in Odisha, land surveys were carried out on only flat land; slopes beyond the 10-degree gradient were classified as uncultivable wasteland. But these stretches are cultivated by tribal households without land titles.

In Karnataka’s Ballari district, lands belonging to 12 villages that were a part of the former princely state of Sandur were supposed to be surveyed under a 1977 law but this has not been done yet. The villages are in iron ore mining areas and with no land rights in hand, villagers came under pressure to sell their land to mining companies and related infrastructure units.

Unsurveyed lands in Bihar are called ‘topo’ lands and are mostly situated on the banks of silt-laden rivers like the Ganga that shift their course every few decades, creating new land parcels. The first surveys in Bihar were carried out by the British between 1905 and 1915 and left out lands that subsequently emerged from the river. In 1959, the Bihar government decided to carry out a revisional land survey, but this has still not been completed despite a 2011 law requiring its expedition, according to a proactive disclosure under the Right to Information Act by the state revenue and land reforms department.

There are more states, such as Chhattisgarh, which have not surveyed forested lands. In India’s north-eastern region most states have surveyed only urban lands and not community-controlled rural areas, said Sanan of NCAER.

To address the lack of surveys on forest lands, the Forest Rights Act of 2006 required that unsurveyed habitations within forests be converted into revenue villages before recognising the rights of Adivasis and traditional forest-dwellers.

This exclusion of forests and inhabited areas from land surveys is a crucial gap in land governance, said Sanan, because “forest areas are the most vulnerable lands, while inhabited lands are economically valuable”.

In 2008, the government included a component in its land records modernisation programme to provide funds and technical assistance to states to carry out surveys on lands, as we said. However, it has made just 3% progress since then–and that includes data for the resurvey of already surveyed land, according to the scheme’s progress dashboard.

In 2020, the government launched another programme to survey lands. The SVAMITVA (Survey of Villages Abadi and Mapping with Improvised Technology in Village Areas) scheme, under the Ministry of Panchayati Raj, aimed to survey inhabited areas in villages and issue property cards to residents. But the scheme leaves out urban inhabited areas like in Chhapra, which constitute the biggest chunk of unsurveyed lands, as the NCAER study found.

State policy not clear

In Chhapra, the under-construction flyover passes through a densely populated neighbourhood and requires the partial demolition of 295 structures, according to a letter from the district collector of Saran (which covers Chhapra) to the state revenue department in June 2020. Yet, the area is unsurveyed land and there is no provision under law to grant land titles to the people living there, the letter said.

In 2015, the Patna High Court held that the state government could not evict people from unsurveyed land under the Bihar Public Land Encroachment Act 1956 because “the nature of [unsurveyed land] is yet to be established by the authorities” and hence is not “public land” as per the Act. But, in 2017, the state’s law department said that all unsurveyed lands were state property.

Legislators have often raised questions in the state assembly about the need to survey such lands. In 2018, Mithilesh Tiwari said there was “a large chunk of land in Bihar, particularly along the rivers” that was unsurveyed. “People have been living on it for centuries and the government even takes taxes,” Tiwari said. The government responded by assuring that it would bring out a policy on unsurveyed lands “soon”.

“There are huge tracts of unsurveyed land in Bihar and Uttar Pradesh along the Himalayan rivers like Ganges and Gandhak,” said a Bihar government official closely involved in land governance, who declined to be identified as he is not an authorised spokesperson.

The Bihar revenue department has, on several occasions since 2019, considered developing a policy to survey unsurveyed but occupied lands, according to the agenda of the department’s meetings with district collectors (see here and here).

But there is no policy yet. In March 2021, state revenue and land reforms minister Ram Surat Kumar said in an interview that the state government had found that “land mafia” was involved in grabbing unsurveyed lands. Hence the government had set up a committee to come up with ways to grant ownership to the rightful occupants of such lands.

In January 2021, Chhapra’s district collector issued a memo to Bihar Raj Pul Nirman Nigam Limited, the state government agency that oversees flyover constructions, stating that disputed and unsurveyed land belongs to the government. The state, the letter said, would only reimburse the cost of demolition if the residents were to demolish the marked properties themselves, according to a writ petition filed before the Patna High Court by 30 residents.

On March 10, the court ordered status quo on the project. The case is still being heard.

Chhapra protests

Saran district collector Nilesh Deore told IndiaSpend that the state advocate general had in 2017 said that lands that come up on riverbeds are government property. Following this, the state government stopped any registration or mutation of properties in unsurveyed lands, including the disputed area in Chhapra. Deore declined to comment further stating that the matter was pending before the High Court. “The total area for demolition is just 61 decimals (0.61 acres). This is an important project which will ease traffic congestion,” he said.

In their petition before the high court, the residents have submitted documentary evidence of their possession of the land including property taxes and sale deed documents–some of it dating back to the 1930s.

“Merely because land has not been surveyed, [it] cannot be a ground to draw a presumption adverse to the interest of the citizens,” their petition argued. It asks for a direction to the state to not dispossess them until the surveys are completed and their right to the land is decided.

Affected residents have organised as the Chhapra Shahar Bhumiswami Sangathan (Chhapra City Landowners Association), held press conferences to air their views and carried out street marches. They have said that they are willing to give up their claims if they are paid compensation. They have also questioned how their land, in the heart of the city, was left unsurveyed.

“The district collectorate and district courts are also located between our houses and the Ganges river. If we are on unsurveyed lands then so are they,” said Atul Kumar, one of the protesters in Chhapra.

The land did eventually get surveyed–on May 30, 2021, during the pandemic–but this was for the construction work and not to create land records. That evening, the revenue official leading the survey filed a criminal case against the residents who had protested, charging them with voluntarily causing hurt, preventing a public official from discharging their duty, and violating the Covid-19 protocol under the Disaster Management Act, 2005, as per the First Information Report filed with the police. In his complaint, the official said that the ‘status quo’ order of the High Court did not apply to the survey.

The Bihar government should have carried out a survey by now on the land, said Pranab Ranjan Choudhury, director of the Center for Land Governance in Bhubaneshwar. “And if this was encroachment, then the state should say why it wasn’t removed earlier, and whether the responsible official was penalised,” he pointed out.

Choudhury said that even if the occupants are encroachers, they are dependent on the land and must be offered compensation and rehabilitation to avoid conflict. In Odisha, the state offered land titles to residents of informal settlements, and in the case of the Ahmedabad Metro, the Gujarat government offered rehabilitation after verifying property claims using available documentary evidence, family trees, and participatory appraisals, he said. In the case of the Ahmedabad Metro, all affected people are eligible for compensation and rehabilitation irrespective of their land ownership status.

Former bureaucrat Sanan said that if the state admits the rights of the people, it would have to acquire the land under the Land Acquisition Act and pay double the market rate as compensation. Now that the state has the legal opinion to back it, it would rather classify the occupants as encroachers to get the flyover built quickly, he said.

Nihar Gokhale is associate editor at Land Conflict Watch, an independent network of researchers studying land conflicts, climate change and natural resources governance in India.

How the Model Tenancy Act can benefit homeowners and tenants

Published on By Shilpa Kumar | Shivani Gupta

This article was originally published in Indian Express on July 29, 2021.

How the Model Tenancy Act can benefit homeowners and tenants

Written by Shilpa Kumar , Shivani Gupta

India is set to double its urban population between 2018 and 2030, with estimates projecting that by 2028, New Delhi would become the most populous city on the planet. This large-scale migration to urban centres in India is bound to create pressure on housing markets. As per the Report of the Technical Group (TG-12) on Estimation of Urban Housing Shortage (2012), the economically weaker sections and low-income groups currently face 96 per cent of the total housing shortage in India. In such a scenario, building a market for affordable and reliable rental housing is an important policy objective to achieve.

According to the 2011 Census data, nearly 11 million housing units were vacant in the country. This combined with a shortage of nearly 19 million units in 2012 presents a perplexing picture. There are several policy bottlenecks due to which homeowners prefer to keep their homes vacant instead of renting them out. Firstly, the existence of pro-tenant rent control laws across Indian states continues to be an obstacle. These laws protect the rights of the tenants while diluting those of the homeowners. In the case of housing that was not vacant, as per the National Sample Survey Organisation’s data of 2012, 71 per cent of households living in rented accommodations did not have a written contract. This informality could be, in part, a result of this pro-tenant character of the rent control laws and partly because of the large proportion of informal housing. Secondly, judicial delays in case of disputes have dampened the spirits of homeowners over time.

Acknowledging the issues with the rental housing sector today, the Union cabinet recently approved the Model Tenancy Act, 2021, which can significantly boost India’s rental markets.

The Act calls for the repeal of existing rent control laws in all states and Union territories, removing monetary ceilings on the rent amount and allowing for negotiation on the duration of tenancy between homeowners and tenants based on market standards. The Act addresses various challenges that exist in the rental market for both homeowners and tenants, ranging from the fear of illegal occupation/eviction, arbitrary security deposit and structural maintenance-related demands, and high transaction and legal costs.

The Act facilitates another long pending demand of experts for special fast-track courts to settle rental disputes. In India, an average commercial civil suit was disposed of in 1,445 days in a district court, as per World Bank’s Doing Business Report in 2018. To fast-track the disposal of rental disputes, the Model Tenancy Act, 2021 envisions improved contract enforcement through a three-tier dispute redressal mechanism. However, protracted litigation remains a risk. While the adjudicatory bodies at the second and third-tier of appeal are required to dispose of cases within a 60-day timeline, no such time limit is placed on the first tier, the rent authority.

Nonetheless, the Model Tenancy Act, 2021 is expected to provide a fillip to private participation with the formalisation of rental housing markets in India. With a legal framework in place, the private sector can enter into affordable rental housing markets through models like “Build to Rent” and “Rent to Own”. Under the “Build to Rent” model, private residential properties, when built in the right locality such as employment and educational hubs, with the target demographic in mind, can serve as a reliable option for prospective tenants, while providing lucrative and regular returns to the owners. Under the “Rent to Own” model, the owner agrees to sell the house to the tenant in the future and the initial contract contains the necessary clauses to affect the future transfer of ownership. This model is popular across the housing markets of United Kingdom, Middle East and Africa and can serve well in Indian cities where developers are sitting on a large inventory of unsold ready-to-move in stock.

Finally, while the Model Tenancy Act, 2021 provides a promising framework for tenancy agreements in the future, past rental agreements under the states’ respective rent control laws will continue. The meagre rents that homeowners are allowed to charge under the rent control laws are the reason behind a large number of dilapidated housing units and chawls, such as in the case of Mumbai. Due to low rents, the homeowner does not have an incentive to improve the quality of their rental units. The low quality of these units is a major threat to the safety of the low-income groups and migrants living in them. This points to the need for a separate mechanism beyond the Model Tenancy Act that ensures the provision of safe and good quality rental units for tenants, while ensuring a fair economic return for homeowners.

As the Model Act has been circulated by the central government amongst the states, it is yet to be seen what changes are incorporated by the latter to suit the local context. While the Act is a much-needed reform for India’s housing sector, one hopes that states use this opportunity to unlock the economic value of vacant housing and increase access to good quality housing, for all demographics.

This column first appeared in the print edition on July 29, 2021 under the title ‘The housing boost’.Kumar is a partner at Omidyar Network India and Gupta is a former Senior Policy Analyst at The Quantum Hub

With design changes, Svamitva scheme can be a game changer

Published on By Shivani Gupta, TQH

This article was originally published in The Hindustan Times on April 21, 2021

With design changes, Svamitva scheme can be a game changer

 By Shivani Gupta

By providing a Record of Rights (RoRs) to village household owners in inhabited rural areas, it attempts to create accurate land and property records, which can be pivotal in reducing property-related disputes and facilitating monetisation of rural residential assets for credit and other financial services.

—

The Survey of Villages Abadi and Mapping with Improvised Technology in Village Areas or Svamitva scheme, launched in April 2020, can play a key role in ensuring secure property rights for rural India. The scheme aims to provide an integrated property validation solution for rural India through the demarcation of inhabited areas using drones. By providing a Record of Rights (RoRs) to village household owners in inhabited rural areas, it attempts to create accurate land and property records, which can be pivotal in reducing property-related disputes and facilitating monetisation of rural residential assets for credit and other financial services.

By providing clear records of land ownership, it also envisages improved tax collection through the gram panchayat institutions. As of March, drone survey has been completed in over 31,000 villages, and property cards distributed to about 230,000 property holders in 2,626 villages.

But the scheme’s legal, social and economic design needs more thought. One, property cards distributed under the scheme need legal validity in order to enable citizens to establish their title and to avail financial services. The Framework for Implementation of the Svamitva Scheme places the responsibility of carrying out appropriate amendments to the revenue laws for this purpose on the respective state revenue departments. As these departments make the required changes, a careful consideration of the laws will ensure that no legal loopholes impact its effectiveness.

For example, in Haryana, the Svamitva scheme has been implemented under section 26 of its Panchayati Raj Act. However, section 26 of the Act only empowers the panchayat to prepare the maps of the said area, not to create the associated RoRs. Panchayats, in this case, may not be the competent authority to complete this process of entrusting property titles to rural residents. Thus, there is a possibility of disputes if due legal process is not followed. To ensure such inconsistencies do not arise, a review of the state laws related to land and revenue impacting the legality of property cards should be undertaken. These experts could be tasked with drafting amendments to the existing laws or framing new laws to create legally admissible property cards.

Two, at 12%, single women form a significant share of the population but are often devoid of property ownership. The scheme presents an opportunity to enable recognition of women’s ownership rights as it issues property cards based on “possession” and not “inheritance”. To ensure this, states can also consider including details of more than one owner on the property cards, and recognising joint ownership of property by women.

Madhya Pradesh and Odisha have existing schemes that provide homestead land to weaker sections such as Dalits and single women. Svamitva can strive to include those in possession of these lands and also include low-income families and SC/ST communities who have been residing in village commons for generations. There is also scope to rope in civil society organisations for gender and caste-based sensitisation of field functionaries.

Third, the Fifteenth Finance Commission report has emphasised the importance of property tax as “the most effective instrument for revenue mobilisation by local bodies”, thereby encouraging the administration to “build a framework for property taxation with universal coverage.”

To ensure that Svamitva is able to achieve the objective of building financially resilient local governments, legal changes are needed to empower panchayats to both collect and utilise property tax. Gram panchayats may also be authorised to revise property tax records at the time of land record updates (registration, mutation) to ensure robust and consistent revenue collection. A Geographic Information System-based-based software may be provided to panchayats to manage property and taxation records. Such software is available for municipal corporations and urban local bodies. As more states gear up for the implementation of Svamitva, including these design principles could ensure the realisation of rural India’s aspirations.

Shivani Gupta is a senior policy analyst, The Quantum Hub

Gaining from SVAMITVA- Survey of Villages and Mapping with Improvised Technology in Village Areas

Published on By Deepak Sanan | Prerna Prabhakar

This article was originally published in The Financial Express on April 19, 2021.

Gaining from SVAMITVA- Survey of Villages and Mapping with Improvised Technology in Village Areas

 By Deepak Sanan & Prerna Prabhakar

The traditionally inhabited portions of rural India have largely remained unsurveyed—except for Odisha and Karnataka, to a certain degree—since colonial times. When the British rule of India was established, land was the most important source of revenue in a predominantly agricultural economy. Only land considered productive from an agricultural standpoint could sustain the levy of a tax. Therefore, land records were created to identify those expected to pay land revenue and fix the quantum of this based on the productivity of the landholding. Areas devoted to habitation were clearly unproductive and not worth the effort involved in surveying, creating and maintaining a record. Consequently, for almost all Indian States/UTs, the inhabited lands in rural areas do not have a record outlining various aspects of property ownership. (The situation is similar for inhabited land in urban areas—according to N-LRSI 2020, only 8 Indian States/UTs have separate urban property records and only 6 states maintain urban land records in the form of municipal property tax records.) This dismal state with regard to property records for inhabited areas is ironical, as these areas tend to have the most value and a high transaction intensity, and hence need accurate and up-to-date property records for land markets to flourish.

The Centre, on April 24, 2020, launched a Central sector scheme “SVAMITVA- Survey of Villages and Mapping with Improvised Technology in Village Areas”. The scheme aims at surveying the unmapped land parcels in rural inhabited areas using drone technology. The idea for this is derived from a pilot undertaken in Maharashtra with the assistance of the Survey of India, to use drones to expeditiously survey inhabited village areas (called gaonthan in Maharashtra) and prepare property records analogous to those in use in the state’s urban areas.

Svamita’s ultimate objective is twofold—one is to provide property records to rural households so that their houses can acquire additional value as assets that can be used in transactions and used as collateral for securing institutional credit. Facilitating monetisation of land assumes great importance in the wake of the economic distress caused by the ongoing coronavirus pandemic. The other is to augment fiscal resources available to rural local bodies by improving the base that contributes to tax revenue.

The scheme’s design throws up certain concerns which should be addressed to ensure desired benefits are realised. One of the concerns relates to ensuring regular updating of the created records—to reflect change in ownership etc. The scheme’s guidelines state that the GIS database will be handed over to the state revenue department for future maintenance. It would be even more appropriate if the record is created under the auspices of the existing custodian of land records (almost universally the revenue department) as part of that department’s mandate. This will ensure both ownership of the process by the competent department and integration of the new record into the existing systems of land records. For this purpose, it is important for States/UTs to make any necessary amendments to the land laws and strengthen inter-departmental linkages.

Given that there is considerable autonomy in the way states will choose to implement this scheme, it is important to evaluate the scheme’s performance on desired outcomes. In this regard, devising the appropriate monitoring system is essential. Ultimately, its success will be gauged from the extent a comprehensive and accurate property record been created with a system to update it in real time, the availability of data in a transparent manner, ease of integration with property tax registers maintained by gram panchayats, establishing of formal ownership leading increased access to formal credit, etc. States will have to capture these details.

Fostering a spirit of healthy competition among states can expedite progress under the scheme. For this a credible system to verify achievement and rank states may hold promise. The NCAER Land Records and Services Index (N-LRSI) that undertakes comparative assessment and ranking of Indian States/UTs with respect to digitisation and quality of land records offers valuable lessons in this regard. A similar index on Svamitva should be devised to rank progress.

The Svamitva scheme can unlock the potential of land in inhabited areas of villages. The scheme can also help limit future property disputes. However, it can also end up as paper exercise with no lasting value unless concerted efforts are made to ensure that it is embedded in the traditional custodian of rural land records.

Bringing gender equality in the Hindu Succession Act: An overdue reform

Published on By Devendra Damle | Ajay Shah

This article was originally published in The Leap Journal on Tuesday, December 14, 2021

Bringing gender equality in the Hindu Succession Act: An overdue reform

by Devendra Damle and Ajay Shah.

One element of the gender problem in India is the Hindu Succession Act, 1956 (HSA). This law governs intestate succession for Hindus, Buddhists, Jains and Sikhs (i.e. 80% of Indian citizens), and discriminates against women. Under the rules governing the devolution of property, the relatives of a woman’s husband have a stronger claim to her property than her parents and siblings. This is not true of the property belonging to a man. This unequal treatment is inconsistent with equal treatment by the state as envisioned in Articles 14 and 15(1) of the Constitution of India.

This question has just come back into prominence.In an ongoing case — Kamal Anant Khopkar vs Union of India [WP(C) 1517/2018] — the Supreme Court of India issued an order on 7th December 2021 directing the Solicitor General to provide the Union Government’s view on these discriminatory provisions (See: here).

A brief by the Amicus Curiae — Meenakshi Arora — highlighting the discriminatory provisions prompted the Supreme Court to take this action. The bench noted that this discrimination has remained in the statute books for a long time. The Court also noted that a judicial and/or legislative intervention is necessary to remedy it.The discriminatory provisions in the HSA have profoundly impacted many Hindu women. Some examples help us understand the unfairness in play:

    1. Consider an ongoing case in the High Court of Punjab and Haryana (See: here). One Devina Bhardwaj and her husband Chetan Bhardwaj jointly purchased a home in Gurgaon in 2014. Devina bore most of the expense. Both contracted COVID-19 in early 2021. Chetan died intestate in April 2021. As a result, his property devolved to Devina and his parents in equal parts. Shortly after that, Devina also died intestate. Devina’s mother-in-law sought to gain access to Devina and Chetan’s assets (estimated to be worth INR 2.7 crore), a significant portion of which were Devina’s self-acquired property. The concerned revenue department officials declared her the sole-legal heir to Devina’s assets. This is in line with the scheme of devolution under the HSA.
      Devina’s mother has filed a petition in the High Court of Punjab and Haryana claiming her right to Devina’s share of assets, and challenging the constitutional validity of the relevant provision of the HSA. The High Court has issued a notice to the Union Government seeking its reply. (See: here)|
    2. The Supreme Court dealt with a similar issue in the landmark case Om Prakash v. Radhacharan [(2009) 15 SCC 66]. In this case, one Narayani Devi’s husband died shortly after their marriage. Her in-laws banished her from the matrimonial home. She returned to her parents, who supported her and provided her with an education. She went on to amass a significant amount of property of her own, and died childless and intestate. Her mother and her late husband’s nephews filed competing claims over her self-acquired property. The matter eventually reached the Supreme Court. The Supreme Court, relying on a plain reading of the HSA, granted all of Narayani’s’ property to her late husband’s nephews, while her mother received
      nothing. The story would have been very different if Narayani had been a man.

In an NIPFP working paper, we describe how devolution schemes under the HSA differ for men and women. We describe how courts have interpreted these provisions, and their validity under Articles 14 and 15(1) of the Constitution of India. We describe the previous attempts at reform and where they have fallen short. We propose an amendment to the HSA to make it more gender-equitable. Several other authors have pointed out the disparity between how a man’s and woman’s property is treated under the HSA, and the consequences of this discrimination (See: here and here).

Devolution of property under HSA

The HSA prescribes different rules of devolution for property belonging to men and women. The devolution scheme for a man is governed by Section 8 of the HSA. It states that Class-I heirs — his mother, wife, and lineal descendants — have the first claim to his property. Class-II heirs — his father, siblings, lineal descendants of his siblings, and the siblings of his parents — have a claim if there are no surviving Class-I heirs. The Schedule to the Act contains a detailed list of heirs in each class and sub-class. All property belonging to the man devolves as per this scheme, and it largely keeps all the man’s property within his natal family. The devolution scheme for a woman’s property is different. Section 15(2) applies to any property the woman inherited from her husband, her husband’s family and her parents. Under Section 15(2)(a), if a widow dies childless, any property she inherited from her husband or his family returns to the heirs of the husband. ‘Heirs of the husband’ refers to the list of heirs given in Section 8. Section 15(1) gives a general devolution scheme, which applies to all other properties. Under Section 15(1), a woman’s husband and children have the first claim to her property. The heirs of her husband are next in line, followed by her parents, followed by other heirs of her parents.

Under Section 15(1), if a widow dies childless, the heirs of the husband have a stronger claim than her parents and siblings over all her property that she did not inherit from her parents. This includes all self-acquired property, gifts, bequests through wills, and property inherited from siblings and other relatives. There are no reciprocal provisions in the devolution scheme for a male deceased’s property. There is no scenario where a woman’s family has a claim over the husband’s property.

Constitutional challenge to Section 15 of the HSA

Article 14 of the Constitution of India guarantees all persons equal treatment under the law and Article 15(1) explicitly prohibits the state from discriminating between citizens solely based on religion, race, caste, sex, or place of birth. This means the state cannot make laws that treat citizens differently solely based on the aforementioned distinctions, except in specific circumstances. It appears clear that the provisions of the HSA — which are part of Hindu personal law — discriminate between men and women, but does this violate Article 14 and 15(1)?In Mamta Dinesh Vakil v. Bansi S. Wadhwa [LNIND 2012 BOM 748] the Bombay High Court termed this unequal treatment unconstitutional. It concluded that the discrimination in HSA is solely based on sex and cannot plausibly be said to serve any other rational purpose. The Court, however, referred the question of constitutionality to a larger bench, which has yet to be constituted. While the question of constitutionality may not be settled, judgments such as Om Prakash v. Radhacharan highlight the fact that discrimination under HSA is, in the least, extremely unfair to women. Specifically, Hindu widows with no surviving children.

India’s international commitments

The discrimination under HSA falls afoul of India’s commitments under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). India became a signatory to the CEDAW in 1980, and the Parliament ratified it in 1993. Removing gender-based discrimination in property-related legislation is one of the core requirements of the CEDAW.

The Supreme Court has, in multiple cases, ruled that the legislature, administration and judiciary must give due regard to India’s international commitments under treaties such as the CEDAW. In C Masilamani Mudaliar & Ors v Idol of Sri Swaminathaswami Thirukoil & Ors [(1996) 8 SCC 525], the Supreme Court ruled that the obligations under CEDAW to eliminate gender-based discrimination in legislation are binding on the government. The Supreme Court has made similar rulings in several other cases, such as Madhu Kishwar & Ors. v State of Bihar & Ors. [(1996) 5 SCC 125], and Githa Hariharan and Ors. v Reserve Bank of India and Ors. (MANU/SC/0117/1999).

Past attempts at reform

There have been some attempts at reform in the past, but so far, they have been piecemeal, limited in their scope, and unsuccessful. The Law Commission of India, in their 207th Report (2008) and their Consultation Paper on Family Law (2018), recognised the issue of disparity in the treatment of men’s and women’s self-acquired property and proposed amendments. However, instead of instituting a common devolution scheme, they proposed adding another subsection to Section 15 to govern the devolution of a woman’s self-acquired property.

The Law Commission’s proposal has three issues. First, it does not define self-acquired property. Second, it retains Section 15(2)(b), which requires the property that a woman has inherited from her husband to be passed to the husband’s heirs if she dies childless. Third, it ignores the fact that the heirs of the husband will be preferred over the woman’s natal family if she has inherited the property in question from relatives other than her parents, such as her siblings or grand-parents, since it will continue to be governed by Section 15(1).Two private member’s bills — the first introduced by Anurag Singh Thakur in 2013 and the second introduced by Dushyant Chautala in 2015 — also sought to resolve this issue. However, both these proposed amendments suffered from the same problems as the proposal of the Law Commission. What is necessary is a comprehensive reform of the devolution scheme in the HSA.

Better examples before us

There are two existing Indian succession laws that do far better than the HSA in terms of gender-equality. Devolution schemes in the Indian Succession Act, 1925 (ISA) and the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 (GSSNIP) are gender-neutral. ISA applies to Christians and Parsis, and GSSNIP applies to all persons domiciled in Goa. The British Colonial Government enacted the ISA in 1925. The progenitor of the GSSNIP — the Portuguese Civil Code — was enacted in Goa in 1870. The ISA is still on the statute books, and the GSSNIP replaced the Portuguese Civil Code in Goa in 2018.

Conclusion

The provisions of the HSA discriminate against Hindu women by prescribing different rules for the devolution of property held by men and women. These provisions unfairly prioritise the husband’s family over the woman’s own family, even when the woman has acquired the property in question through her skill or effort. The legislation is a product of an era when it was inconceivable for Indian women to own and acquire property. However, these biases continue to be perpetrated upon Hindu women in India today. This discrimination is probably ultra vires of Articles 14 and 15 of the Constitution of India. It violates India’s commitments under the CEDAW. It is unfortunate that the Parliament has allowed this discrimination to persist despite knowing of the existence of more equitable laws such as the GSSNIP and ISA in our own country.The Supreme Court’s notice to the Union Government is an indication of India’s evolving jurisprudence on questions of gender-equity. This is an opportunity for the Court and the Parliament to, once and for all, eliminate discrimination in a law that affects a majority of Indian women.

References

  1. Gender discrimination in devolution of property under Hindu Succession Act, 1956 (NIPFP Working Paper No 305), by Devendra Damle, Siddharth Srivastava, Tushar Anand, Viraj Joshi and Vishal Trehan, May 2020.
  2. Equal treatment for women on inheritance, by Ajay Shah, in Business Standard, 2020.
  3. A law that thwarts justice, by Prabha Sridevan, in The Hindu, 2011.
  4. Childless Hindu widow’s death leads to flawed property succession: Supreme Court, in The Times of India, 2021.
  5. HC seeks Centre’s reply on petition challenging validity of section 15 of Hindu Succession Act alleging gender discrimination, in LegitEye, Aug 2021.
  6. Proposal to amend Section 15 of the Hindu Succession Act, 1956 in case a female dies intestate leaving her self acquired property with no heirs (Report No 207), by Law Commission of India, 2008.
  7. Consultation Paper on Family Law, by Law Commission of India, 2018.
  8. Manju Narayan Nathan v. Union of India and another [CWP No. 14305 of 2021 (O&M)], High Court of Punjab and Haryana, August 2021.

Devendra Damle is researcher at the National Institute of Public Finance and Policy. Ajay Shah is researcher at xKDR Forum and Jindal Global University.

Picture of a landscape in rural India

Indian states taking ownership of land records digitisation, up to govt to expand it now: Study

Published on By Charu Jain | Deepak Sanan

This piece was originally published in the The Print, on 16th April, 2021.

 

The NCAER’s second Land Records and Services Index 2021 has found that states and Union territories have made considerable progress in digitising their land records and services over the course of one year despite the Covid-19 pandemic.

Bihar and Odisha now offer the facility of a web portal to register a transaction, the N-LRSI 2021 found. Three UTs have made their circle rates available on their websites for the first time (Chandigarh, Andaman and Nicobar Islands, and Dadra & Nagar Haveli and Daman & Diu) while four other states have enabled online payment of registration fees and duties (Bihar, Himachal Pradesh, Delhi, and Punjab). These are important steps in facilitating citizens and easing the process of transaction in land. States are also taking more interest in upgrading the integration between their textual records and the registration process. Three more states — Sikkim, Odisha and Bihar (in addition to the seven as mentioned in the N-LRSI 2020 report) — now ensure automatic generation of a note in the Record of Right (RoR) when a transaction is registered.

The N-LRSI, first unveiled in 2020, is an attempt to measure the performance of all states/UTs in digitising their land records. The index looks at two aspects of the supply of digitised records — first, the extent of digitisation of land records, comprising the textual and spatial land record, and the various stages of the registration process; and second, the quality of the land record evaluated on the basis of five proxy indicators for accuracy of reflection of ownership, possession, use, extent and encumbrances.

The N-LRSI not only helps each state know where it stands in terms of providing digitised land records and associated services but also suggests the specific steps that can help the state improve its performance.

The government of India can profitably look at the N-LRSI experience as an instrument to secure improvement in the domain of land records and services.

 

Digitised land records, a critical step

Land market imperfections have often been highlighted as one of the foremost constraints affecting investment and growth in India. Since the McKinsey report of 2001 to the recent World Bank Ease of Doing Business reports, the difficulty of transacting in land and property in India continues to be pointed out as a major area of concern.

The digitisation of land records is a critical first step in addressing this issue because it lays the foundation for the creation of a more accurate and comprehensive property record that can, with appropriate database linkages, be updated in real time. This will reduce the possibility of disputes leading to litigation and the delay inherent in attempting a proper title search. At the same time, using property as collateral becomes easier. Not only does this facilitate starting new business, digitised records offer the prospects of long-term spin-offs in lowering transaction and litigation costs for individuals and the economy as a whole. Moreover, accurate records that reflect the on-ground situation can speed up infrastructure creation under various government programmes facilitating both planned urban growth and industrialisation.

Computerisation and modernisation of land records have been targeted through central programmes for over three decades now. The latest incarnation is the Digital India Land Records Modernization Programme (launched in April 2016 to replace the National Land Records Modernisation Programme). The progress made by states under these programmes has, for many years, been reported on the website of the Department of Land Resources (DoLR) but obviously this has not been considered sufficient to address the issues that bedevil land markets.

 

N-LRSI, a success story

Is there another way to secure better results? An experiment in this direction is the idea of subjecting the progress reported by states to a credible verification, and using it to rank the relative performance of states. Presenting a credible ranking of performance can be a useful instrument to create a spirit of competition among states and even become a means to offer rewards as an incentive for better performance. And the success of the N-LRSI experiment proves it.

The N-LRSI not only helps each state know where it stands in terms of providing digitised land records and associated services but also suggests the specific steps that can help the state improve its performance.

The N-LRSI 2021 enabled both measurement of states/UTs’ progress on the parameters that formed the basis of N-LRSI 2020 and an assessment of the extent to which the recommendations for further improvement received attention. The exercise brings out that on the 100 point N-LRSI, the average score has improved by more than 16 per cent in one year — from 38.7 in 2019-20 to 45.1 in 2020-21. Twenty-eight states/UTs (out of 32) have shown at least some improvement in N-LRSI scores. Madhya Pradesh once again emerged as the top performer, scoring over 80 points, while the number of states scoring over 70 points increased from one to five.

Performance of states in the NLRSI 2019-20 and NLRSI 2020-21

The considerable countrywide progress in making available digitised RoRs to the public was evident even last year. Since then, states have shown considerable improvement in making available digitised cadastral maps to the public and in offering online facilities for the various stages of the registration process. Karnataka, Tripura, and Bihar are new additions to the list of states that have uploaded the digitised copies of their cadastral maps on their websites. Test checks verify the achievement reported by states/UTs to the extent of 87.8 per cent in 2020-21 as compared to 63.9 per cent in 2019-20. In other words, reporting progress on the DoLR website is now taken more seriously. More states are now making the cadastral maps available in mosaic format with the actual measurement of plot boundaries than was the case last year. In improving the services offered, West Bengal has upgraded the value of its digitised records by making digitally signed copies of both RoRs and cadastral maps available on its website, and Himachal Pradesh has started providing legally signed copies of the maps from its Citizen Services Centres as well instead of only from the departmental offices.

The N-LRSI gauges the extent of digitisation of the registration process along five steps. This year’s edition notes that West Bengal has become the first state in India to introduce a provision for compulsory digital signature by the Sub Registrar’s Office (SRO) at the time of registering a transaction and online delivery of the registered document. Bihar has joined the list of states giving out a soft copy of the registered document.

 

A roadmap for govt

The N-LRSI has shown that credible efforts at measuring performance can become a means to secure better performance by states. It has demonstrated receptivity to the areas that it has highlighted as deserving attention. States have taken ownership of the process to the extent that the progress reported in the last one year is not based on even a single rupee being claimed under the central Digital India Land Records Modernization Programme. Going forward, it is evident that there is reason to continue bringing out the N-LRSI. Adding a survey of users of land records and related services can show the value to the public of the ongoing digitisation efforts and further highlight matters that require greater attention.

The government of India can profitably look at the N-LRSI experience as an instrument to secure improvement in the domain of land records and services. It can be a useful adjunct to a central programme like the Digital India Land Records Modernization Programme to reward better performing states. At another level, it is a principle that can be extended to other sectors to motivate improved performance by states.

 

Charu Jain is an Associate Fellow  and Deepak Sanan is Senior Advisor at National Council of Applied Economic Research. 
(Edited by Prashant Dixit)