Land ownership for women needs more attention

Let me start with an incident from a remote village in the Niyamgiri range of Lanjigarh block in Kalahandi district of Odisha, a place where the corporate giant Vedanta was trying to acquire tens of thousands of acres of land for bauxite mining.

In 2011, the state government identified Kalabati, 65, and her husband as a landless family to be provided with a homestead plot. But Kalabati’s husband didn’t live to own that plot. He died by the time revenue authorities completed the landless identification formalities.

After some months, when the homestead pattas (deeds) were finally distributed, many families couldn’t turn up for the event, as they had to travel quite far in the mountains. It was the same with Kalabati. Within a day or two, when revenue authorities reached Kalabati’s thatched house to handover the patta, they learnt that she had died.

Thus ended the story of a couple that in official language are called encroachers. Their deaths in quick succession appeared as if Kalabati had promised her husband that if they would ever own a piece of earth, they would own it together. What took the revenue authorities several years is a simple case of regularization of land where they had resided for ages.

Landlessness and dignity

Landlessness was certainly not the cause of their deaths but it could have certainly given them a dignified life. These stories are not unique to Odisha nor are the sufferings of many such Kalabatis. Her story once again reminds us of three oft-forgotten dimensions in development governance — who knows whether the promises made reach the poor and the marginalized; who is accountable if they don’t and; who monitors promises.

The answers to all the questions are invariably in the negative. The flow of response to cases like Kalabati starts with a heart rendering front page story in media – job accomplished, the opposition hounding the ruling party, bureaucrats playing a cascading blame game, finally the buck passing to the panchayat functionaries, and subsequently buried.

The story of provisioning land for women like promises of milk and honey has more or less followed the same trajectory and has not been less dismal. Independence and thereafter, India recognized the need for ensuring land rights to women and for which not only brought in relevant legislative reforms but also reflected its pious intentions in the five-year plan documents.

But 70 years down the line, only 3% of them have come to own farmlands and close to a mere 10% own homestead parcels. The number of women either purchasing or inheriting family land has been close to negligible. This dismal status of women’s land ownership directs us to two broad and generic barriers —societal and cultural, which relates to existence of strong and largely intolerant patriarchy and social norms that are mostly gender insensitive, and legal and institutional governance, where low gender sensitivity causing weak implementation of progressive laws, dysfunctional institutions, lack of enabling rules and procedures, and so on.

Patriarchy and legal reforms

There is an interesting correlation between patriarchy and legal reforms. While strong patriarchal processes create natural obstructions to progressive change intended to be brought about by legal reforms, bureaucratic apathy and reluctance to execute progressive laws strengthens patriarchy. The two resultant implications are unimplemented progressive legislations turn liabilities for women as it strengthens organized backlash, and if implemented well, it goes on to systematically weaken patriarchal stranglehold.

Therefore, as necessary condition for change, laws alone cannot bring in the desired result if not supported by relevant institutions, enabling rules, and trained and committed human resource. For instance, when governments committed to address social evils like child marriage and the practice of dowry, it just did not introduce powerful legal instruments but crafted ways to execute them with right earnest.

They involved creation and sensitization of a wide range of social and administrative institutions and individuals, framed guiding policies and rules, and consistently mobilized local communities to create a multi-pronged support base against the said evils. While no half measures to execute these laws pushed the patriarchy back, the property rights space is yet to experience such levels of seriousness and commitment, unfortunately.

Political commitment

The bigger consideration behind the success of any progressive law is the extent of political commitment and support it receives. While promulgation of laws is a routine political business, the response of bureaucrats invariably depends on the degree of non-negotiability that their political masters attach to a particular law.

For instance, in a letter dated August 1, 2014 to all Chief Secretaries, the then Secretary, Department of Land Resources (DoLR), Government of India, referred to the Planning Commission’s renewed focus on endowing women with land as an important instrument for empowering them. The letter made reference to the 12^th five-year plan, which stated that as per Hindu Succession (Amendment) Act (HSAA), 2005, all agricultural lands are at par with other properties, which makes Hindu women’s land inheritance equal to that of men across States, overriding any inconsistencies in the State laws.

The letter also mentioned that the Ministry of Women and Child Development (WCD), in collaboration with the Department of Land Resources (DoLR), would monitor the progress of the HSAA implementation. Four years have passed since then. Not one Chief Secretary has responded with a concrete action plan. There has been no follow up from DoLR. There has been no collective effort to develop a system to monitor implementation of HSAA. Lastly, there is lack of commitment for the issue at the state level.

When asked, DoLR brought in the issue of legislative competence, which means the Centre does not have the competence and authority to instruct states to legislate on matters that are in their list and land is listed as a state subject matter. However, this logic was conveniently forgotten when the central government asked NITI Aayog to draft a Model Agricultural Land Leasing Law in 2015, knowing very well that land was still a state subject.

The Ministry of Women and Child Development, Government of India, came out with a draft National Women’s Policy in 2016, recognizing land ownership for women largely because of efforts by property rights groups. The draft policy also emphasized the need for collecting gender disaggregated data on land ownership and the mechanisms for the same during the preparation of the Action Plans, national and state, which were the next logical steps.

In July 2016, MWCD requested DoLR to send their short, medium- and long-term action points pertaining to land ownership of women. Since the last two years, the relevant ministries are quiet, and needless to say, progress to the above is poor and dismal.

The Hindu Succession Act, 2005, carries fair amount of incongruity in terms of its implementation both at the state and national levels. Being a central law, it is the Ministry of Law and Justice that is empowered to monitor and send out state advisories for effective and purposeful implementation of HSA.

The revenue departments responsible to oversee implementation of HSA in the states do not have special cells or structures to collect sex disaggregated data on property inheritance. No centralized data is collected by the state revenue departments on how many property partition cases initiated, how many disposed, how many of them are single women, how many cases forwarded to civil courts, and so on.

Bigger question

Now comes the bigger question — if the states don’t have ground level data on the status of land inheritance by women, what are being shared with MLJ for it to monitor HSA implementation and suggest legal changes, if need be? It may not be entirely exaggerated to say that with regard to women’s property inheritance, there is a complete delink between the state revenue departments, MLJ, MWCD and the DoLR. This is the status of land ownership of women, when inheriting family land remains the major source for women owning land.

Till now we have been discussing impacts of non-implementation of an established legal framework, HSA, 2005. But how does a tribal woman inherit land? The Hindu Succession (Amendment) Act of 2005 does not apply to tribal communities where inheritance is predominantly governed by their customary practices restricting ownership of land to women.

In tribal societies, land is titled only in the name of man with neither wife nor daughter having a right to inherit. While tribal women don’t inherit private agricultural land, government distributed land is also seldom jointly titled. Primarily in eastern Indian states of Chhattisgarh, Jharkhand and Odisha, most customary practices concerning women’s property rights are discriminatory and patriarchal.

For the non-tribal women to inherit land, there is a law that is systematically made invalid by poor and lack of responsive implementation, and for the tribals, a set of untouchable customary practices that are out of bounds for development administration. Moreover, it has been reported recently that there seems to be no definite intent of the central government to back the women farmers’ issue. The central government needs to understand that Achche Din is not only about toilets and gas connections.

Not an atrocity?

What happens when a woman is denied access to land that is legally hers? It is not considered as an atrocity, as it is for a tribal when denied access to land or whose land is transferred illegally making it a criminal offence. It is time to realize that one of the root causes of violence against women is the persistent denial of property rights and getting away with it.

The anti-dowry laws have taught us how deterrence can fight stubborn social norms. Women in India will continue to suffer if deliberate and organized denial of land rights by the collective patriarchy and negligent government officers are not considered atrocity on women and made a criminal offence in relevant laws.

While law prescribes for a simple procedure that when a landless occupies a government land either for residence or farming, the revenue officers are authorized to settle the plot in his or her name, a homestead plot probably less than four cents couldn’t be regularized in favor of Kalabati even after 70 years of Independence. Should this be termed as atrocity on Kalabati? If yes, who is responsible?

Sanjoy Patnaik has more than two decades of experience in forest and land tenure issues. He was till recently India Country Director of non-profit organization Landesa. Views are personal.