Land Rights in India
The Indian Constitution adopted in 1950, safeguarded land rights of Scheduled Tribes, and through the inclusion of the fundamental right to property in Article 19(1) (f), guaranteed equal property rights to all Indians, including women and Dalits or Scheduled Castes for the first time.
Importance of Land Rights
Lack of housing, land, and property rights and the systematic denial of tenure security, for the majority of the world’s population promote social injustice and contribute to acute humanitarian crises. As a result of unequal and discriminatory access to and ownership of land, specific groups and communities suffer the most. These include low income groups, Dalits, indigenous and tribal peoples/adivasis, migrants, internally displaced persons, and marginalized women, including single women and women with disabilities and HIV/AIDS.
Severe inequality in landholdings, apart from being socially and ecologically destructive, greatly aggravates the housing crisis. Forced land acquisition, the growing concentration of land with corporate enterprises, and large-scale industrialisation, including of agriculture, tends to involuntarily displace the poor to marginal areas, and threatens social and ecological sustainability.
Land plays a crucial role in the structural linkages between rural and urban housing problems. While migration to urban areas is on the rise, the underlying causes for this movement are not being addressed. Such migration is generally not voluntary, but is the product of extreme rural poverty due to landlessness; land insecurity; land conversions; the loss of means of subsistence resulting from a failure to give priority to agrarian reform or promote rural infrastructure; project-induced displacement; distressed housing; or the industrial takeover of farmland. The lack of legal recognition of the right to land contributes to these situations. In cities, migrants, informal sector workers, and the urban poor are often precluded from accessing adequate housing and forced to live in informal settlements characterized by insecure and inadequate living conditions.
The absence of tenure security and land rights in urban areas also exacerbates situations of forced evictions and displacement of the urban poor.
Non-recognition of land rights also contributes to homelessness, as people and communities cannot hold on to their land and access land-based resources. The loss of public and private property, land grabbing, pillaging and looting, and the destruction of agricultural crops, all contribute to rising homelessness and landlessness.
Land and Property Rights
One of the core functions of any sovereign government is to recognise and protect property rights at both personal and community levels. Property rights are not just about ownership of a piece of land but a collection of rights over that land that may be lawfully exercised. Although the norms of property ownership and rights have been well established, where they have failed is in their last mile recognition and enforcement.
Enforcement of property rights has proven to be a difficult task in India, creating enormous burdens on the judicial system. Even where the law sets the norms straight, the reality is that land records are rarely maintained with sufficient accuracy and rarely updated quickly to reflect changes in rights. This has meant that high transaction costs are incurred by all parties to secure their rights, limiting their ability to use these properties to the fullest extent whether directly or through monetisation.
Land Ownership Laws in India
- The land is an immovable property where the value of a such property depends on its surroundings and the population; a growing population where its demand increases and supply remains limited makes it a unique asset, and therefore it is mandatory that the ownership of such land is clearly defined and is governed by Land ownership laws in India.
- Land ownership is determined by considering who has access to a land title; such determination helps protect the rights of the titleholder and impacts livelihoods. However, in India, land titles are unclear, and hence various land ownership laws in India are framed.
- Under land ownership laws in India, the rights of the title holder are to be protected so that no other person can claim the property. Therefore, land ownership laws in India are determined via various land documents such as property tax documents, registered sale deeds, and government survey records.
- As per India LGAF Report, 2016, by 2030, it is expected that the urban population will increase by more than 200 million; hence, there may be a requirement for additional land for residential use and strict land ownership laws in India.
Land Regulation and legislation
- The Constitution of India consists of three lists, and “Land” was the subject of the “State” list. Till 1977 the property right was regarded as a fundamental right; however, after the 44th Constitution amendment, the property right was no longer considered a fundamental right and became a constitutional right which is to be protected under the authority of Land ownership laws in India.
- Today the right to land in India is protected and regulated by State laws. Different states have different Land ownership laws in India to check and restore any illegal land transfer.
- Before analyzing which Land ownership laws in India are applicable in a particular transaction, a person may approach for a bit of legal advice as different Land ownership laws in India are appropriate in different scenarios, and a person with proper legal knowledge may know how to implement it.
Land Rights of Scheduled Tribes
In so far as land related issues are concerned, the Ministry of Rural Development, Department of Land Resources (DoLR), is the nodal Ministry at the Centre, which plays a monitoring role in the field of land reforms, Land and its management fall under the exclusive legislative and administrative jurisdiction of States as provided under the Constitution of India (Seventh Schedule)-List-II (State List)-Entry No. (18).
The Scheduled Tribes (STs) have been the most marginalised, isolated and deprived population. To protect and safeguarding the land rights of STs and to address the issue of Land Acquisition and displacement of tribals, following Constitutional and legal provisions have been put in place:
- The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA in short), in section 4(5) states that save as otherwise provided, no member of a forest dwelling Scheduled Tribes or Other Traditional Forest Dweller shall be evicted or removed from the Forest Land under his occupation till the recognition and verification procedure is complete.
- Under Section 5 of FRA, Gram Sabha is, inter-alia, empowered to ensure the decision taken in Gram Sabha to regulate access to community forest resources and stop any activity which adversely affects the wild animals, forest and the biodiversity are complied with.
- Government has enacted the ‘Right to fair compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLARR Act, 2013 in short). The purpose of the said Act is to ensure, in consultation with institutions of local self-government and Gram Sabhas established under the Constitution, a humane, participative, informed and transparent process for land acquisition with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired.
- Under Section 48 of RFCTLARR Act, 2013, a National Level Monitoring Committee for Rehabilitation and Resettlement has been constituted in the DoLR vide DoLR’s Order No. 26011/04/2017-LRD dated 2nd March, 2015 for the purpose of reviewing and monitoring the implementation of rehabilitation and resettlement schemes and plans related to land acquisition under the RFCTLARR, 2013 and National Rehabilitation and Resettlement Policy, 2007.
- By way of safeguards against displacement special provisions have been made for Scheduled Caste and Scheduled Tribes under Section 41 and 42 of the RFCTLARR Act, 2013 which protect their interests. As per Section 41 (1), as far as possible, no acquisition of land shall be made in the Scheduled Areas. As per Section 41(2), where such acquisition does take place, it shall be done only as a demonstrable last resort. As per Section 41(3),in case of acquisition or alternation of any land in Scheduled Areas, the prior consent of the concerned Gram Sabha or the Panchayats or the autonomous District Councils, at the appropriate level in Scheduled Areas under the Fifth Schedule to the Constitution, as the case may be, shall be obtained, in all cases of land acquisition in such areas, including acquisition in case of urgency, before issue of a notification under this Act, or any other 9entral Act or a State Act for the time being in force. The RFCTLARR Act, 2013 also lays down procedure and manner of rehabilitation and resettlement.
- The Panchayats (Extension to Scheduled Area) Act, 1996, also provides that the Gram Sabha or the Panchayats at the appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas or development projects and before resettling or rehabilitating persons affected by such projects in the Scheduled Areas, the actual planning and implementation of the projects in the Scheduled Areas shall be coordinated at the State Level.
- Constitutional provision under Schedule-V also provide for safeguards against displacement of tribal population because of land acquisition etc. The Governor of the State which has scheduled Areas is empowered to prohibit or restrict transfer of land from tribals and regulate he allotment of land to members of the Scheduled Tribes in such cases. Land being a State subject, various provisions of rehabilitation and resettlement as per the RFCTLARR Act, 2013 are implemented by the concerned State Governments.
- The Scheduled castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989” has been introduced to prevent the commission of offences of atrocities against members of the Scheduled Castes and the Scheduled Tribes, to provide for the trial of such offences and for the relief of rehabilitation of the victims of such offences for matters connected therewith or incidental thereto. Wrongfully dispossessing members of Scheduled Castes or Scheduled Tribes from their land or premises or interfering with the enjoyment of their rights, including forest rights, over any land or premises or water or irrigation facilities or destroying the crops or taking away the produce there from amount to offence of atrocities and are subject to punishment under the said Act.
Apart from the above, a 3 judges’ bench of Supreme Court in Orissa Mining Corporation vs. Ministry of Environment and Forest &Ors. Vide W.P. (c) 180 of 2011, held that forest approval cannot be granted for a development project without the informed consent of the Gram Sabhas, given after proper consideration in a duly convened Gram Sabha and passed by resolution. The Court stated that the Gram Sabha is also free to consider all the community, individual as well as cultural and religious claim.
The Ministry of Mines, vide their letter dated 5th January, 2017 sent a letter to all State Governments regarding imposing of conditions in the lease deed in regard to FRA compliance in the cases covered under Section 10(A)(2) (c) of the Mines & Minerals (Development & Regulation) Act, 1957. In the said letter, it has been, inter-alia, mentioned that execution of lease deed shall not be construed to dilute any provision of FRA.
Further, the Ministry of Environment and Forests vide their letter dated 03.08.2009 has informed all State Governments regarding diversion of forest land for non-forest purposes under the Forest (Conservation) Act, 1980. This letter includes that a letter from the State Government certifying that proposals for such diversion (with full details of project and its implication, in vernacular/local languages) have been placed before each concerned Gram Sabha of forest-dwellers, who are eligible under the FRA.
FRA is an Act to recognize and vest the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generation but whose right could not be recorded.
The recognition and vesting of such forest rights under FRA is subject to the condition that such Scheduled Tribes or tribal communities or other traditional forest dwellers had occupied forest land before the 13th day of December, 2015.
The State Governments/UTs have been issued advisories by this Ministry from time to time to carry out the strict and speedy implementation of provisions of the Forest Right Act, 2006 and Rules there under and to ensure that while processing the claims of Forest dwellers under the Act, no eligible claim is rejected. In addition, recently a letter dated 26.03.2019 was also issued to all
Sates/UTs indicating various directions issued by Ministry of Tribal Affairs regarding the implementation of FRA, 2006 circulated, to facilitate necessary action by the States/UT Governments.
- FRA is an Act to recognize and vest the forest rights and occupation in Forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations but who right could not be recorded.
- The recognition and vesting of such forest rights under FRA is subject to the condition that such Scheduled Tribes or tribal communities or other traditional forest dwellers had occupied forest land before the 13th day of December, 2005.
- As per Section 4(6) of FRA “where the forest rights re-cognized and vested by sub-section (1) are in respect of land mentioned in clause (a) of sub-section (I) of section 3 such land shall be under the occupation of an individual or family or community on the date of commencement of this Act and shall be restricted to the area under actual occupation and shall in no case exceed an area of four hectares.
This information was given by Union Minister of State for Tribal Affairs Smt. Renuka Singh Saruta in a written reply in Lok Sabha today.
Women’s land rights in India
Women in India are among the most socially and economically marginalised in the world. Their position has only worsened in the wake of the global pandemic, as evidenced by India falling from rank 133 in 2019 to 148 in 2021 in the Women Peace and Security Index, which measures women’s inclusion and security across the world. Existing data on women’s land ownership in India isn’t comprehensive, but it paints a rather dismal picture—although 80 percent of economically active women are in the agricultural sector, only 13 percent of them own agricultural land.
The importance of land rights as a means for women’s empowerment is fairly evident, as it provides women with financial security, shelter, income, and livelihood opportunities. But how does the existing legal framework concerning land in India further the cause of women’s land rights? And what are the existing gaps that need to be addressed? Based on the experiences of the Centre for Social Justice and the Working Group for Women and Land Ownership, this article presents a closer look at three land laws and their impact on women’s land rights.
These laws promote women’s land rights in a variety of ways.
1- The Land Acquisition (Right to Fair Rehabilitation and Resettlement) Act, 2013:
- In its definition of ‘affected families’, the LARR includes those who own the land being acquired and also those who depend on the land being acquired for their livelihood. Through its inclusion of those who rely on the land, the act brings within its ambit the significant percentage of landless women who earn their livelihood through farming, livestock rearing, etc. and entitles them to rehabilitation.
- Recognises widows, divorcees, and deserted women as separate families, which forwards the cause of women’s land rights as it recognises the rights of single women.
- The procedure concerning the titling of compensatory land is also more inclusive, as the LARR states that the compensatory land can be given in the names of both the husband and the wife of the affected family. This facilitates the joint ownership of land even if the original land may have been solely in the name of the husband
2- Forest Rights Act, 2006:
- Recognises women’s right to land as equal to that of men by recognising individual forest rights through joint titles (that is, in the joint names of husband and wife).
- Grants individual forest rights to unmarried women, deserted women, and widows.
- Mandates that women be accorded a minimum of one-third representation in forest rights committees, which aid in the preparation of claims for forest rights and advise the gram sabha in the verification and approval of claims.
Where the laws fall short: Although the LARR recognises the rights of those who rely on but do not own land with regard to rehabilitation, it states that 70–80 percent of landowning families must consent to an acquisition for it to move forward. Thus, although the significant percentage of women who constitute non-landowning families would be rehabilitated, their consent is not sought in the first place.
Implementation challenges: Though a number of protections for women exist in the way the laws are currently framed, there are discrepancies in its implementation that hinder the cause of women’s land rights.
- Societal pressures: In our experience of speaking with rural women who were governed by the HSA, we found that most of them are aware of the rights accorded by the act, such as daughters being entitled to parental property. Nevertheless, the social factors that prevented women from claiming their share still persist. For instance, women may fear that staking their claim might cause disharmony within the family, or they may be told that they must forgo their inheritance because a dowry was paid for their marriage.
- Discretionary issues: The LARR states that compensatory land may be given in the joint names of husband and wife. However, the use of ‘may’ in the language of the provision leaves sufficient room for discretion and does not mandate that the wife’s name will be entered into the land record. As a result, it is quite likely that the title will remain solely in the name of the husband.
- State-specific agrarian laws vs the HSA amendment: Although the HSA amendment brought agricultural land within its ambit, it is in conflict with state-specific agrarian laws as the seventh schedule of the Constitution indicates that only states are empowered to legislate on agriculture. Although the Centre can legislate on succession, legislation on the succession of agricultural land remains disputed.
How can existing gaps be filled?
- Training and sensitisation: Women’s land rights are often not a priority for the bodies in charge of implementing land laws. For instance, the 2015 National Training Policy for Rural Development and Panchayati Raj, which guides the capacity-building programmes of the national and state institutes for rural development, does not contain material on women’s land rights.
- Data and targeted programmes: The lack of gender disaggregated data on women’s land ownership is a significant barrier to determining the exact extent of women’s landlessness in India. Although NITI Aayog is working on digitising land records, there is no mention of collecting gender disaggregated data on land ownership.
