Category Archives: Land Governance

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

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

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

How the Model Tenancy Act can benefit homeowners and tenants

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

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

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

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

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)

GIS Imagery for Citizens’ Agency

This piece was originally published in the Indian Express, on 27 January, 2021.

 

“A picture is worth a thousand words” is a well-worn cliché. But the value of a picture can be particularly high when dealing with marginalised communities which are disadvantaged by their ability to read or write. Visuals can make communication simple and direct without the need for interpretation or translation or indeed, confusion.

In a sense, this follows the same arc that news did. Newspapers were earlier restricted to those who could read and write. This naturally limited their reach to the elite. The radio transformed this “monopoly” and anyone could access information and news. The advent of video combined with the proliferation of mobile phones and cheap data then added a visual layer that forever democratised news and also enabled citizen access and journalism.

Each shift enabled a more real reporting of the situation on the ground. Geospatial (GIS) techniques that can correlate data to a particular location can have that same impact for governance as data costs and technology-enabled and democratised access.

For example, a GIS map can help policy makers, governments and citizens overlay area with marginalised populations with the quantum of welfare benefits access in those areas to see how and why they don’t overlap. Indiapulse@ISB highlights various use cases of this.

A GIS map can also help urban commons be registered and recorded and protected from encroachment. Chandigarh is already attempting some form of this as has a Navratna public sector company. Similarly, a GIS picture can help a tribal lady point out her land on the visual in front of her and use that to claim and regularise her forest-based land. A site visit to see this in action with civil society organisations like Pradan brings to life how extremely difficult land right issues can be handled in a simple and participatory way.

A GIS map can help policy makers, governments and citizens overlay area with marginalised populations with the quantum of welfare benefits access in those areas to see how and why they don’t overlap.

These illustrations underline the fact that geospatial payoffs are particularly high where there is greater complexity and where the community at risk is extremely disadvantaged.

A closer look at such problems and payoffs is best evidenced in relation to the livelihoods and land rights of India’s 100 million-strong tribal population. Post-independence, this community which had depended on forest land as a primary source of livelihood was deprived of their access. This set off a chain of marginalisation that has now resulted in 47 per cent of India’s 100 million tribal population living below the poverty line. These are also the communities that are lagging on most social indicators. The Forest Rights Act of 2005 sought to remedy this. The new legislation was to bring legal recognition for the rights of tribals over forests and any person belonging to a Scheduled Tribe could claim the right to live in and cultivate up to four hectares of land.

Access to secure property rights has been a well-proven way to improve economic and social well-being. A safe and secure home enables the wellbeing of the household not just in terms of physical safety and health but also from the perspective of being able to use their asset for economic advancement. This 2005 Act, therefore, had the ability to improve lives of 100 million people in India and bring 50 million out of poverty.

However, 15 years after this legislation was passed, the number of titles awarded stands at a meagre two million with over 20 million still without titles. A significant reason for such low access to land titles and security is the lack of education and resultant agency. This is compounded by complex governmental processes and low rates of such claims being accepted.

Access to secure property rights has been a well-proven way to improve economic and social well-being. A safe and secure home enables the wellbeing of the household not just in terms of physical safety and health but also from the perspective of being able to use their asset for economic advancement.

It is in situations like this — involving complex land issues and vulnerable communities — that GIS imaging can play its most critical and conclusive role. Visuals that highlight geographic markers like trees, streams or houses can easily allow gram sabhas to sit together and agree on landholdings. These images can bring to life the complicated maps and property markers that otherwise elude disadvantaged communities to legitimise the claim to their space. Spatial maps over many years can also help in establishing whether this landholding existed in the cutoff year.

In urban governance as well, geospatial imagery can help municipalities record their land visually. This is being rolled out already by some cities and will then be an excellent record for city planning, protection of urban spaces and for better tracking of service infrastructure like sewerage networks.

The biggest potential win for geospatial is to increase citizen agency. The combination of mobile phones, cheap data and GIS imagery can democratise their ability to engage in the development of both rural and urban property.

The biggest potential win for geospatial is to increase citizen agency.

However, in the end, this needs to be supplemented with reliable and efficient offline governmental processes to really build the momentum. A strong push to incorporate easily available GIS tracking by both governmental and civil society organisations can help in four important ways: First, better preservation of land ecosystems and protection of private property; second, improved public finances with accurate and simple tracking of property-related taxes; third, an easy to understand governance tool; and fourth, a game-changing and democratising tool for the land rights of the most vulnerable.

 

Shilpa Kumar is a partner at Omidyar Network India an investment firm focused on social impact, which has invested in and provided grants to some of the organisations named in this article.

An unlikely common strand of 2020 — land and property rights


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

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

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

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

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

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

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

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

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

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

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

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

 

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