Women’s right to agricultural land: Need to remove legal barriers for achieving gender equality

INDIA-ECONOMY-AGRICULTUREBy Dr Ashok Sircar*

Women’s land rights (WLR) have been and continue to be a live agenda in social development discourse of India. The  importance of WLR has been discussed in the context of agriculture; poverty reduction; reduction in gender based violence;  women’s well-being and agency. There now exists a vast academic literature and experience of collective action to point that women’s land rights can significantly contribute to achieving greater gender equality. The Sustainable Development  Goals (SDGs) capture the above under three targets that are connected to the goals of ending poverty and hunger, and of  achieving greater gender equality. This policy brief outlines the gaps that exist in the realisation of women’s land rights on  agricultural land and calls for immediate collective action aimed at removing the structural barriers in inheritance, leasing,  and joint ownership of privately held land in favour of women.

Women’s land rights in India are mediated through various  personal laws and customary practices. The Hindu personal  law in its present form allows women the right to own land  and independently manage its affairs. Presently, the law  includes ownership of agricultural land by women, thanks to  the amendment in 2005. However, even now states like Uttar Pradesh and a few others do not follow the amendment.

The Muslim personal law does not allow for women’s share  in agricultural land, except in a few states which have  recently amended this. Muslim women get one third of the  share of the estate property, while men get two thirds of it.  Under the Indian Succession Act (ISA) 1925 Christian widows get one third of the estate property and the male and female linear descendants get two thirds of it, equally  divided among them.

The Tribals have their own customary  practices, which typically deny women their land share,  again, barring a few exceptional situations.  While the personal laws and tenurial land laws make  unequal provisions for women’s land share, the societal  practices irrespective of these laws, deny women their land  share even when it is permitted under law.

Land transfer in India occurs mostly through inheritance and women face  severe discrimination from their families in this respect.  Several research studies have shown that families are most  likely to deny the married daughters, widows, unmarried  women their land share in estate and tenurial land. The  other two mechanisms, namely, state distribution of land  jointly to women and men, and market incentivisation for  women in buying land are of very limited scope in India.

Any corrective action either through the state or market is,  therefore, necessarily limited. All these together results in  abysmally poor land ownership of women in India varying  between 9-13 per cent according to various estimates.

It’s important to note here that clearly disaggregated data  on women’s land ownership and operational access to  different kinds of land – homestead land (rural-urban) and  tenurial land is still not presented in our national statistics.  There are huge definitional issues and data gaps associated  with them.  The literature on inequality in land ownership can be contrasted with another set of literature, which focuses on the impact of land ownership in enhancing women’s security,  agency, well-being and productive contribution.

A set of studies on the impact of land ownership on gender based  violence indicates that land ownership is likely to reduce  gender based violence at home.8 In some of these studies,  women have spoken about how land ownership provides  them with an enhanced sense of security. There also exists  a vast literature showing that as agriculture is increasingly  feminised and women’s contributions to the sector increase,  women need clear land titles to harness their full productive  potential.

It would worth mentioning here a 2006 study  in Uttar Pradesh according to which only 6 per cent of  women own land, less than 1 per cent have participated in  government training programmes, and just 2 per cent have  access to institutional credit, and only 8 per cent have control  over agricultural income. However, along with ensuring land  ownership by laws, training, easy access to credit are equally  important to reduce gender inequality by increasing income  of the women farmers as well as enhancing their control over  agricultural income.

This policy brief makes the following recommendations to  enhance women’s land rights in India:

  • The Union Government should amend Indian Stamps Act 1899 and Indian Registration Act 1908, to exempt  payment of stamp duty and registration fee in case of a  single ownership being converted to joint ownership of  husband and wife.
  • The State Governments should strictly implement Hindu Succession Act (HSA) 2005, and clearly partition the land,  giving exclusive and identifiable land titles to women.
  • The state governments should liberalise tenancy restrictions on crop land, with top priority to women and  their collectives.
  • The Union Government should institute a policy aimed at collecting sex-disaggregated data on women’s land  ownership of all kinds of land to inform appropriate  policy making.

It may be emphasized here that land rights for women in India  is not a substitute to improving their education or raising  their income. It can, however, facilitate women’s access to  other such socio-economic goods known to have a positive  impact on women’s health, nutrition, freedom and agency.  Land rights often provide women the power to seek these  impacts. Besides, as history shows, property rights being  fundamental to organising a society, women’s equal share  in property rights has the power of societal transformation.

Recommendations:

  • The Union Government should amend Indian Stamps Act 1899 and Indian Registration Act 1908, to exempt  payment of stamp duty and registration fee in case of  a single ownership being converted to joint ownership  of husband and wife.

All land transfers (sale, gift, lease, etc.) except by way of  inheritance must undergo a registration process in India.  The registration process requires a registration fee, and a  stamp duty to be paid to the state government. The Indian  Stamps Act 1899, Indian Registration Act 1908, and the  rules made by state governments from time to time govern  the property transaction which determine stamp duty and  registration fee. The registration fee and stamp duty are  computed as a percentage to the actual market value of the  land. The rate varies from state to state, and usually ranges  between 6-8 per cent of the land value.  This payment is required even if a husband wishes to  transfer a piece of land from his single ownership to joint  ownership with his wife. Under the Indian law, this is treated  as a gift.

In Uttar Pradesh, for example, through a campaign  called Aaroh Abhiyan, a few thousand rural women were  able to persuade their husbands to agree to a change in  land ownership from single to joint. But the move did not  progress, as the families realised, that they will have to  pay out several thousand rupees to get this changed into  a reality. This is not particular to UP, the transfer rules are  more or less the same in most states and only the nature  of exemptions differ. In Kerala, a husband and wife cannot  jointly own a piece of land.

It is certain that the stamp duty and registration fee act as  great disincentive that must be done away with.  Also, joint ownership of land by husband and wife should  be seen and treated as ‘Joint Tenancy’ in the registration  document, and not ‘Tenancy in Common’, because in the  latter case, the rights to the land do not automatically  confer to the survivor upon the death of one of them. Joint  tenancy automatically confers full right of the entire land to  the survivor.

It is important to note that transfer from single to joint  ownership of land is dependent on the mutual agreement  of the husband and wife, and understandably, of the entire  family, particularly in the case where the couple has adult  sons and daughters. Therefore, the state policy should  provide for an enabling provision, but not a compulsory  provision. However, the enabling provision can be very  useful to grassroots women movements, which are working  on issues of gender equality.

  • The State Governments should strictly implement Hindu Succession Act (HSA) 2005, and clearly partition  the land, giving exclusive and identifiable land titles to

Hindu Succession Act 2005, allows women to own estate  and agricultural land. This has come about after a long  discourse on women’s land rights in India, pioneered by  Bina Agarwal. However, ten years of its implementation  saw three major barriers in the way of ensuring clear land  ownership by women. For example, Uttar Pradesh still does  not honour this provision on agricultural land, and claims  that since agriculture is a state subject it would continue  to follow UP Zamindari Abolition and Land Reforms Act 1950.  This Act honours the inheritance rights of widows, daughters  and sisters only after the rights of all male descendants are  exhausted.

Even then, the right is not absolute for these  women as after their demise the property goes back to  the male descendants. Delhi, Haryana, Punjab, Himachal  Pradesh follow the same practice in their agricultural land  related laws, where rights of female survivors (widow,  daughter, daughter-in-law of a pre-deceased son, etc.)  are honoured after the rights of male descendants in their  agricultural land related laws.

A different scenario exists in Rajasthan and Madhya Pradesh,  where the state laws on agricultural land recognise that  inheritance will follow personal laws. Here, it is seen that  the names of widows and daughters routinely appear in the  record of rights, but the possession of the land continues to  remain with male members of the family. The women neither  have a clear land share nor a clear title on the inherited land.

A third scenario exists among the Adivasis. Indian law  recognises that Adivasi customs would govern their  women’s land rights, resulting in women being deprived  of their property rights. On the other hand, state laws  regarding inheritance of agricultural land in general do not  make distinction on the basis of religion, except in those  few states, where the law of inheritance of agricultural land  follows Hindu, Muslim or Christian personal laws.

In such  scenarios, state laws should apply to Adivasis for their  agricultural land. A recent judgment by Himachal Pradesh  High Court is a case in point here. In June 2015, Himachal  Pradesh High Court, setting aside the customary practices,  ruled that Adivasi women in Himachal Pradesh will inherit  property including agricultural land as per HSA 2005.

It has become critical that inheritance of agricultural  land be brought under a uniform code; through which  women become coparcenary and have equal rights at par  with men as per Hindu Succession Amendment Act 2005.  Himachal Pradesh example indicates that if HSA 2005 can  be broadened to include the Adivasi population, its scope  can be further widened to cover nearly 88 per cent of the  population of India.

However, in order to realise women’s land rights, the aforementioned  is only a necessary but not a sufficient step.  The task is complete only when women are provided with  clear land titles in inheritance. This would require a critical  change in the process of inheritance, where, the state role  does not end with just entering the names of women in the land record, but have to go one step further to complete the  partitioning of the land and giving clear titles to women.

  • The state governments should liberalise tenancy restrictions on crop land, with priority to women and  their collectives.  Agricultural tenancy was banned or restricted in most  states during the 1950s to prevent the spread of absentee  landlordism, and to end the feudal production relations on

Presently, tenancy is not explicitly prohibited in five  states, banned in three states and restricted in the rest  of the states. In recent decades, informal leasing has  replaced long term tenancy. Informal leasing typically takes  place for a season or two, or for a year, against a fixed sum  of cash lease rent per acre. Though sex-disaggregated data  is not available, 13 per cent women’s operational holdings  of agricultural land as per agricultural census includes a  significant amount of leased in land.

In many states, women Self Help Groups (SHG) are engaged  in various land based livelihood activities to supplement  their family income. Kerala and Andhra Pradesh are now  often quoted as large scale successes where women’s  groups are able to raise significant income through  agriculture, horticulture, and poultry activities. A number  of livelihood efforts led by civil society organisations also  adopt the same strategy. In most of these cases, the  women SHG take a piece of land on lease and pay rent. In  Kerala, where tenancy is fully banned, these women groups  under the state programme called Kudumbashree make use  of 40,218 hectares (99,381 acre) of land to produce various  food grains. Almost all of it is done by taking land on lease.  Several studies have shown that the present day lease  arrangements do not reflect a feudal agrarian structure,  meant mostly to support bonded labour and subsistence,  but are very much part of the market-based agricultural  system, where both participants enter into a temporary  oral contract based on market terms available to them.

In addition, studies show, this arrangement is no less  productive than family run farms using wage labour.  Therefore, this new situation calls for modification in law.  Several official documents now recognise the importance of  liberalising tenancy restrictions. The 12th Plan document, the  draft land reform policy of GOI in 2013, for example, clearly  called for a blanket liberalisation of tenancy. More recently,  Niti Aayog appointed an expert committee on land leasing that  has clearly recommended removing leasing restrictions.

Land leasing must be allowed in law. Whether there  should be a blanket liberalisation of leasing for all kinds of  purposes, particularly, non-agricultural purposes must be  debated, but leasing in by landless and marginal farmers,  women, and especially women’s groups must be allowed.  This would promote private investment in agriculture and  help enhance livelihoods security.

  • The Union Government should institute a policy aimed at collecting sex-disaggregated data on women’s land  ownership of all kinds of land to inform appropriate  policy making.

The question, ‘How many women own land in India?’ returns  incomplete answers. According to 2011 census, the  number of women cultivators (including main cultivators  and marginal cultivators) is about 3.59 crores. Agricultural  Census 2010-11, on the other hand, captures female  operational holdings at about 1.76 crores. Neither the  ‘Cultivators’ nor ‘Operational holdings’ capture land  ownership. This is the first problem.

The second problem is that the above data refers only  to agricultural land. It does not capture ownership of  homestead land in rural areas. Homestead land refers  to land, where there is dwelling unit, plus land for other  domestic use – fruit trees, animal sheds, kitchen garden,  etc. It’s important to note that 41.63 per cent of households  in rural India only have a homestead land of their own. The  question that needs to be asked is: how many women own  the homestead land they live in? National statistics do not  capture this data.

The third problem is that national statistics do not capture  ownership of land by women in urban areas. In urban areas,  private ownership of land is used mainly for two purposes—  dwelling units and commercial purposes. The question,  ‘How many women own land in urban areas?’ can’t be reliably  answered since it is not captured in any national statistics.

The fourth problem relates to data on government  land distribution programmes. From the mid-nineties,  government land distribution in most states mandated that  land allocated by the government shall be jointly owned  by husband and wife. However, there is no reliable data to  capture if women indeed received land in joint titles with  their husbands. Micro studies reveal that often this norm  has not been adhered to during implementation.  Non-availability of sex-disaggregated data limits the  scope of policy making and social action in several ways.

Firstly, it limits the scope of women targeted welfare and  development programmes, because, women continue to  be hidden under the household as targets. This is why, for  example, agriculture related interventions – bank loans,  kisan credit cards, technology assistance, and extension  services remain focused on men.  Data on homestead lands and dwelling units is enormously  important with respect to planning for enhancing women’s  security.

Ownership of homesteads and dwelling units by  women enhances their status in the family, reduces gender  based violence, and acts as a fall back mechanism at times  of crisis. Therefore, national statistics must capture this  data to assist policy planning.  As the country has embraced the SDGs, the importance of  Women’s land rights in particular to agricultural land can’t  be ignored as it finds mention in 3 of the 17 SDG targets.

While the progress in India on the legislative front has been  significant, time has come to specifically remove barriers in  law and implementation. This would not only help achieve  SDGs, but will also enhance women’s empowerment, and  bring about social transformation. Removing barriers  to granting of land rights to women is a call not only for  governments but also to civil society organisations and  social movements since many of the barriers are rooted in  social and cultural practices.

*Source: Oxfam India Policy Brief, No 19, June 2016

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