Unravelling India’s Land Laws: Why do we have over 500 land laws and what impact does it have?

[00:00:00] We aim to bring you expert conversations about the most contentious of the Holy Roti Kapraha Makan Trinity, that is the Makan Oraheads and the larger ecosystem that governs it. This podcast is produced in association with the Property Rights Research Consortium supported by Omidya Network India.

[00:00:40] I am Bargavri, a researcher interested in land and access to finance and your host for this season. Most people complain that there are way too many land laws in India. But what does it mean when we use the word land laws?

[00:01:00] I mean the graphic picture that comes to my mind is an amorphous body of many many laws, depending on who you are, what age you are, where in India you are.

[00:01:10] So for example, if you are a home barger, the first land law that comes to mind is a regulatory development authority act, right? Which is the law that governs the relationship between you and your

[00:01:19] developer. If you are a farm or perhaps laws that come to mind or agriculture, retenancies or agricultural land ceilings, laws. If you are a developer, laws that come to mind are the zoning and town planning laws.

[00:01:31] If you are an infrastructure firm or have the land acquisition law comes to mind. And if you are within the government or if you are a civil servant, definitely the law that

[00:01:39] comes to mind is a land revenue code. In short, there are way too many land laws in India and some of them actually back to the early 20th century, they vary from state to state and even within the

[00:01:50] same state, they often vary within regions. How does a layperson make sense of them? How many of them are actually enforced by home and against home? And most importantly, what story do they tell us about India? To answer these questions,

[00:02:06] we have with us Dr. Namita Wahi, who is the founder and director of Land Rights Initiative, which is a pioneering initiative in the field of land policy in India. She has worked extensively on land and property rights in India and it's contributed significantly

[00:02:20] to this scholarship on land laws in India. Dr. Wahi is also to launch the mill database, which is a repository of all land-related legislations in India. We also have with us, Nithin Saiti, who is a journalist and a partner and a editorial advisor at Land Conflict,

[00:02:36] watch, which is a pan-India organization that systematically researches land conflicts in India with the aim of facilitating better decision making. Most people, including me, know Nithin as a fantastic investigative journalist, who has for many years been researching on political economy,

[00:02:51] natural resources, environment and development. Welcome Nithin and Namita to the land of a billion podcasts. Thank you so much, Paa. Thank you for having us part of this. Thank you, Paa. Khabi. Thank you Nithin for being part of this conversation.

[00:03:07] Great. So, you know, most economic historians are actually recorded that prior to maybe about 1855, there were no sort of land laws. There is no record of history of land laws of the

[00:03:20] territory that was then in India. And today we are in a very different position and like I mentioned, there is a plethora of laws and nobody knows how to make sense of all of them. So,

[00:03:31] Nithin, how did we come to be in this position? How has the legal and regulatory framework governing land developed over the years in India? So, I wouldn't say that they want to laws before 1850, you know, because we do have under British rule, we have the first legislation,

[00:03:48] which really overturned the lives of people in the region, which is the permanent settlement regulation of 1793. And before that, you know, every administration has had a very complex system of land revenue regulations. So, we had that under the muggles, the maratas, you know, all the

[00:04:06] rulers that we've had, I think land being the most important source of livelihood, being a resource, not just an economic resource but something which is so central to individual and community, identity, history and culture is something that has been the subject of the states preoccupation

[00:04:26] and the people's preoccupation for the last centuries. But what we have seen is that there are the colonial states ofjective with respect to land, which was to maximize revenue from the land, led to a certain kind of legislation that was initiated. And also to appropriate as much resources

[00:04:44] as possible. So we have a series of laws pertaining to that and in post independent India, we have different motivations, we have a motivation in the at least in the 50s and the 60s to bring about land reforms to actually reverse the historical injustices that were perpetrated during

[00:05:00] British rule. And so we have a series of land reform legislation including a coalition of Zamidari, 10 in C reform, land ceiling and redistribution legislation. And then you also have, you know, legislation as India organized that, as you mentioned in the beginning that, you know, we have a series

[00:05:16] of legislation that comes in about imagining urban India, which includes a number of municipality laws which give a lot of powers to municipal bodies in urban areas to deal with Othlan acquisition

[00:05:28] and land use as well as within rural India. And as the country has progressed in that way, we have had a series of infrastructure development laws, a regulatory development authorities that have been set up. We have laws that have specifically created bodies that can, you know,

[00:05:46] acquire lands for highways and, you know, dams and other infrastructure projects that are necessary in India. So that explains the widespread nature and, you know, variety of land legislation. And the fact of the matter is that land is a state subject in India. So it was also a

[00:06:04] provincial subject during British rule and it was continued to be a state subject in the post-independent period as a result of which each state, and it's also a subject in the concurrent list. So we have

[00:06:14] said so because it is a subject in the state list, so every state can has the primary responsibility to legislate with respect to land. And that makes sense right because land is different in different

[00:06:24] parts of the country. But we also have a number of central laws relating to land. And so we have this layered regulatory framework where sometimes on the same subject or the same area or the same

[00:06:36] geography or the same region, we have different legislation that apply that have been enacted at different points of time by different bodies and that give different powers to different administrative bodies. So there is not just a overlapping legislation, a layer that is happening.

[00:06:52] There's also overlapping responsibilities over administrative bodies. And that is what leads to this complex regulatory framework with respect to land in India. Thanks, that's fantastic and I completely agree with you. I mean not just India right,

[00:07:04] everywhere in the world, land is a local subject. Land is really governed locally and maybe therefore land laws everywhere in the world are actually as confused no matter the state of development of a country. And why this regulates a lot of the relationships between the state

[00:07:20] and her citizens? I wonder how this really affects the nature of conflicts right? So Nitin has been following land conflicts over many years and what are your views? How do you think that these evolving nature of land legislations has shaped land conflicts in India? So Varcapi, I would

[00:07:37] I mean one of the strands are keep thinking about when we look at land conflicts or land and resource related conflicts is the matrix in which the relationship and the sharing of powers between

[00:07:50] the central and the state of happen over how land shall be governed, how revenue shall be earned, how the nature of land use will be altered and who will have the powers to alter it.

[00:08:01] To me I see that one there's a clear physical issue of the land itself because we know historically due to issues of caste and a very pernicious economic slave we that's perpetuated in the name of caste.

[00:08:16] There are many people who have been deprived of the land rights historically in India. To I find that the struggle for land is not related very often and the conflicts over land are

[00:08:28] not related to just the mud of the earth. It's very often related to the resources that are found growing on top or the resources that are found under that crust in some sense. And the mix of

[00:08:41] those is what causes immense amount of strains in our society. I would say fairly that there has to be some ranges of conflict which are much more than what we would see in a less diverse

[00:08:52] nation. The nature of our societies is so diverse in the use and the kind of stakeholders we have on every square inch of our land is so diverse that I think there is bound to be an inherent conflict

[00:09:04] in many cases much more than there are in other developed parts of world like the. But the navigation by the state of who shall operate what value of that resource, how would you distribute equitably those values across societal structures across segments of society across

[00:09:24] intergenerational and intergenerational needs of a country at large. I think that's where this matrix of complex laws which sometimes seemingly suggest that Panchayas may have control but at the end when you realize they are over-ridden by district administration's over-ridden by political

[00:09:42] interests and then another layer of overrides available even at the union government level very often. And remember what this leads to because say part of my own upbringing is in what's called

[00:09:54] India's Northeast. If you look at the concerns that keep rising up in a Sam in other places, there are regions in how the land tenure and revenue systems of a Sam would change during

[00:10:05] the British era which caused a different pattern of settling it of a society that caused a difference in how what was cultivated when and where and how migration moved in of different

[00:10:19] patterns in a Sam. So I do agree with Nhamitha and you that the nature and the relationship that we have as citizens as society with our lands and how the state modulates it using these laws has very

[00:10:33] wide repercussions unless you have a database of laws such as the one Nhamitha's and her team is built. Or you have data on the kind that perhaps if I may beat my own drum a little land conflict

[00:10:45] watch has. This allows us to look at longer trends of how conflicts are mapping us out how it's changing as economically or impinging upon our right to develop economically as well as how it's impacting a socio-cultural relationships. The other element I think is essential for the nation's

[00:11:06] state and therefore the government of different kinds to maintain that sense of a nation's state is the ability to modulate relations built on land and economic power that emanates from people holding land. It's the original form of capital in some sense and the Libre and the Finden laws

[00:11:26] and the humongous numbers of Finden laws is in some sense reflection on how the state over different times has navigated either to maintain a status going these relationships or to try and alter them once in a while. We can question whether these alterations are benign or in favor

[00:11:45] of certain more powerful stakeholders etc at different times but it's a negotiating tool in the power in the hands of the state. So you know let me just pick up on some of these things so

[00:12:00] it seems to me that even if the laborant of laws were implemented in the most ideological and in let's just say perfect manner we would continue to deal with bureaucracy because every law has its own

[00:12:13] bureaucracy so the citizen or the land owner or the land user or the landtiller is not just dealing with her neighbor on land disputes right they have to navigate the state they have to navigate the

[00:12:24] local bureaucracy they have to navigate the courts every time there's a dispute and as commercial transactions become more sophisticated they have to navigate you know the service provider where so as consumers for example or as homeowners as home buyers I have to navigate the

[00:12:40] developer the real estate regulatory authority and then between all of this there is a group of people who are most sophisticated they have better access to information about all this and there is

[00:12:50] a larger perhaps group of people who don't have it some of it is represented through collective action and associations but a lot of it is not and how how do you ultimately you know reduce the

[00:13:00] information asymmetry that exists between the average person who wants to make the best views of her land and her resources and the state which is much more powerful when it comes to information or you know almost sophisticated information holders and in this context Nameda we you know how

[00:13:20] does your database really help people break down these information asymmetries if you could talk about little bit about that that would be great thanks Margiri as you know our Constitution grandfathered the application of colonial laws unless there was specifically found to be

[00:13:34] violative of our fundamental rights so when you talk about the relationship of citizens and the state the fact of the matter is we were subjects of the British colonial role and unfortunately even when we became citizens you know when the Constitution was adopted in 1950 because of this

[00:13:49] grandfathering of the colonial laws we pretty much remained subjects for a very long time you know within the statutory framework that was continued and you know coming to the mill database the reason why I started embarked on this exercises because as you both know and perhaps others

[00:14:06] is well that we had produced a research report on land acquisition disputes five years ago so it was a report which looked at all disputes before the Supreme Court a study of our disputes over

[00:14:17] time period but in doing so I realized they were there were hundred laws of just land acquisition across India and that just got me thinking there were a hundred laws of land acquisition how many

[00:14:25] total landlords do we have and what areas do they apply to so this project was birthed then in 2017 and we've been working on it for the last five years we started out by looking at

[00:14:36] all central laws on land as well as we took a representative sample of eight states it was a geographically represented example because we have Punjab in the north we draw it in the west

[00:14:47] Andrew Pradesh and Telangana in the south we are in Jarkhand in the east and usam and Mejhulaya in the northeast so that was the goal that can be get a representative sample geographically you know

[00:14:59] can we get it legally and we put together the laws and I can tell you that we found about 500 laws for just eight states and central laws which we've analysed as part of this research and we've

[00:15:11] analysed these laws across 30 categories the goal of this database is actually to help all stakeholders like you said remove the information asymmetry and provide this information for everyone to use I mean the government doesn't know all the laws that that are there people certainly

[00:15:27] don't know all the laws that are there lawyers don't know necessarily unless they can access some paid archives I mean this is going to be a free resource for use for everyone students,

[00:15:36] researchers people like us who to actually you know look at this area and it's brutality and see an identify trends over time and hopefully paint a larger picture for the political economy of

[00:15:47] India and how it's changing okay that's fantastic no meta so you know in the conflict space within how would you see this helping people who are actually involved in the conflict do you see

[00:15:58] them actually going to the database accessing the law understanding their rights better what are some other uses of this database that you see this is a in some sense a existential question we

[00:16:09] at land conflict at watch have asked for ourselves for glass couple of peers at least saying you know who's using this database is it of any larger public good or is it for a certain segment

[00:16:20] of society and at least with land conflict watch and I'm made by extension then say of the legal database that now meta and her team has built might also be true we found it land conflict watch

[00:16:31] that it's much value for people who are at an arms link from the conflict itself but we're trying to grapple with the ramifications the consequences of those conflicts in particular segments at scales the people who are actually and segments of society or community which are involved

[00:16:51] in conflicts themselves they with less or more depending on how powerful economically politically those characters are the grapple with not just law but the use of law the use of administrative powers and administrative laws they deploy tactics inside and outside courts which includes politics

[00:17:11] which includes politics of protest and their world is far more complex than what I think any database can capture so I believe databases have a particular use it's not important that data

[00:17:26] basis be used by everyone in every segment of society I do think they provide a deep insight to legal review this situation let me give you an example I think a better off it and

[00:17:36] towards the land acquisition new LARR as it's called in approvation the new land acquisition law and rehabilitation law was written by UPA it was fantastic there was this great debate going on

[00:17:48] about how you know so many elements of the colonial act will be under and there was a small line inside saying if I remember correctly saying the law will apply to most acquisitions except for this things called infrastructure which are noted in a government notification of the finance

[00:18:06] ministry dated some some month of 2012 and I went back to look at that note epication and like are we going to change the history of our relationship between the state and society and land based on

[00:18:17] a note application from the finance department and I looked at it it was a list of what is called infrastructure by the finance ministry to provide certain financial incentives and that continues to be the exception that was carved in a supposedly a landmark law up to 120 years of

[00:18:35] having a colonial legacy to live with. Now the daily practitioners of or the ones dealing with the consequences of these laws I think learn to navigate this very well because for many of them

[00:18:46] either is business or survival for many of us who sit sitting slightly far away even an inch away we come to the issue with a little 90 t a little bit of deeper theoretics and deeper understanding

[00:18:58] of practice for us I think this set of laws is very important to understand just to see them to get I would say not even if I was too lazy and actually I have a red more than 7 or 10

[00:19:08] I hope I do but if I don't to know that there are these complex laws administrative systems that are fighting each other in contesting against each other and that people are surviving between

[00:19:20] that to find value in the one asset they have to monetize that value or to retain that asset in a certain way that they desire to to me that it self suggests the nature of political struggle

[00:19:32] and democratic struggle in India over resources and I'm quite happy it can if this data basically serve that community and that service if it can render well I think is done already

[00:19:44] doing the great job everything else is a top of me frankly but I let Nameta respond to that better because I think she's on whose carpet I'm sure this she's seen many people talk about

[00:19:54] what else could happen with it yes thanks Nathan it was really helpful for me to hear about how you imagine the database is going to be used and as always in conversation with you

[00:20:06] I learn a lot I think to add to what she said as I see it I see like five you know five six different groups of stakeholders that are going to benefit from the law first of all anybody who's

[00:20:18] interested in knowing about what laws apply to them in a particular state I just want to emphasize here that it's not just a collection of laws each of the laws actually has a summary that someone

[00:20:29] can quickly look at before they decide to actually go into the law on top of that all of the laws like I said have been categorized under various categories and have been organized by geography

[00:20:40] by timeline and by thematic subject area and each category has several layers of subcategories so I see ordinary people of India using it I think it's a very important resource for government

[00:20:51] you know like I said even the government doesn't actually have this kind of data I remember for our schedule areas report we had for the first time we mapped schedule areas in India we created

[00:21:01] a map of schedule areas and even the Ministry of Tribal Affairs did not have a map of schedule areas we computed that there were 13% of India's geographic areas in the schedule areas the

[00:21:11] government didn't know this so I think it will be a very important resource for the government of India for the state governments it'll be a very important resource for local government

[00:21:20] I know for a fact that this is going to be a very very important resource for civil society groups who know as nothing said they probably have better practical insights of what is going on then

[00:21:28] those of us who are sitting a little bit further away even though we spend a lot of time working on these issues basically the goal is to bring a holistic picture to all of this so so I think

[00:21:39] it's going to be a great benefit to civil society groups it's going to help provide help help them see things in comparative perspective and historical perspective it will help us see things over time I think it's going to be a great importance to researchers working in the land

[00:21:53] space but also in the larger political economies space to historians particularly you know because the database covers the entire period of British rule and and and till date I think it's going

[00:22:03] to be a great benefit to corporations and to the market in general because you know a lot of times people come into a space thinking this state has acquired their land they're for rather they've signed an MOU with the state especially for investments in foreign corporations

[00:22:19] and you know I often see this that they you know signing an MOU doesn't mean that a project is actually going to happen but that often seems to be the naive assumption because the state says

[00:22:29] an Oville acquired this land but the factor of the matter is that because they have not bothered to actually sort of negotiate with the people whose land is going to be taken away

[00:22:38] if they have rights they will go to the courts they will go and dispute which is why we have at land rights initiative we estimate that in the Supreme Court 25% of all litigation over the last

[00:22:51] 70 years is land litigation of its 30% was land acquisition litigation sure thanks no we don't know you know we know that you have been tracking the climate change later risks and what it

[00:23:02] brings and what it really means for the Indian economy as well is for the government for a very long time and how do we view climate change issues from the perspective of land governance so

[00:23:12] what about land governance or land administration has to change to be able to take into account the rights of people who are most likely to be affected by climate change risks. Even if we were not to look at great catastrophes that are perhaps on the brink and

[00:23:28] as scientists say we are on a tipping point by 2030 things go down the line we will keep seeing much more extreme events that will cause great amount of stress in society

[00:23:38] on land and resources even if we were not to go that far and we would look at the moderate range and the slow burning changes that will happen. I think climate change exacerbates for developing nations particularly it climate change exacerbates all the stress in strains of mal governance

[00:23:55] and complexities that exist in the first place. It enhances the fallout of inequities existing inequities in societies. It makes existing imbalances the consequences of existing imbalances even worse for those who are economically socially culturally on a lower footing than others

[00:24:18] in the society and therefore it will make for the state the navigation, the modulation of these contests much more difficult as these contests get more extreme more frequent and more entrenched in a fashion that we have not seen before.

[00:24:36] See let me give you an example which is closer to my heart in personal life the balls that I come from level along the hills. I've seen as climate change increases average temperatures in these hills which are long so lands along the gradient that what people are

[00:24:51] growing at foothills begins to move up hill because temperatures are getting warmer. What used to grow up hill is going further up so say in an area which is a dear friends place in

[00:25:03] Arunachal called share come just below that in the Tavan valley area, western Arunachal we see that the orchid sanctuaries are moving up this is a rocky sanctuary that which is moving up. The orchid

[00:25:14] sanctuaries space is being taken over marginally by farmers who now see that they can grow potato in that area because it has become amenable to it. Now the state's own logic of what

[00:25:23] is what was the orchid sanctuaries which is a protected zone under where one land law is actually physically moved is now become an agricultural space for the community who are responding

[00:25:34] to real circumstances where the law is stuck back in where it imagined the space to be and this is the most benign example I can give of how even if I was to look at from government's perspective

[00:25:44] just understanding how these laws will respond to the changes and very rapid and more intense changes in the relationship between the source extraction citizenry and land. It would become immensely difficult. There are many other layers I can point out. What we want is the in-gumments

[00:26:02] response to climate change, one of the responses has been that it believes that growing a large number of plantations in Indian lands is you make there are lot of waste lands and we know

[00:26:14] they are not pertinent in systems as now I tell you a lot of these margin productive lands or lands indirectly use much more by less powerful communities or categorizes waste lands. Government believes by growing forests on these lands which are empty waste lands it will be able

[00:26:30] to achieve certain percentage of its targets on reducing emissions. Now to me that's creating a layer of conflict that never existed to begin with. So the solution to climate change will in India's case and in many other developing world actually cause an exacerbate existing

[00:26:46] stresses on land resources and the relationship between the poor and marginal communities with their resources. The nature of your economic activity linked to land would come under a complete slow burning alteration that your land laws will not be able to address. Your governance would

[00:27:05] be half blind too and the worst consequences of this would be people who I might say limb on ecological borders in the country. People who live on edges of course, people who live on gradients,

[00:27:16] people who live on the edges of where two different ecological systems meet. There you will see these transitions, these stresses play out physically more apparent others will also suffer when these cases will see people on ecological edges needing to read just shift their relation

[00:27:35] to land physically shift at times and there is this large debate about climate change induced migration across geographies. File still remains to create extent a theoretical correct framework and we still don't have a terminology to figure out how to segregate this from economic distress-related

[00:27:54] migrations. These things tend to change the nature of governments and the nature of countries itself. Okay, so I believe that actually when you face with the problem you will figure out a way to deal

[00:28:05] with it but I see I kind of see when the even parts of your conversation where they're coming from which is that in our response the longer we take to respond actually the people who are

[00:28:15] already suffering suffer the most and I don't know if there is ever a way to make sure that that doesn't happen but we will end here and before we end the episode I want to ask both

[00:28:26] of you. You all have been working in this field for a really long time and generally last risk work that very, very few people in India frankly have been able to put together since the

[00:28:35] theme of the podcast is land of a billion if you were to put your remaining energy and I'm sure there's lots of it but you know your enthusiasm, your energy and your weight behind one reform that

[00:28:47] you think will secure land rights for a billion plus population in India what would it be? Let's start with Namitha. I was saying that the question you've asked, you know, land of a billion

[00:28:58] itself there in itself lies the answer I think the first thing is to recognize how central land is to each one of those billion people. The one reform that I want to suggest is not something

[00:29:10] that can be done through a passing a law or a policy but rather a shift in consciousness, a realization because as you know Nitha's response to your question showed, is that we've sort of looked at, we've tended to look at land, water for rest and other resources

[00:29:28] as commodities as if we are separate from them and that we can use them for our various purposes and that has brought us to the brink of overused over exploitation of every single resource

[00:29:38] that exists. So I think the big reform with the big shift I think has to be a shift in consciousness and I think to some extent it is being able to happen, I think happens, it needs to happen in a very big way

[00:29:49] and that's where I think the centrality of land to our environment, to our community history identity culture needs to be understood that it's not a commodity, it's not just an economic resource

[00:30:01] and you know that is why the othercy understanding of land where land, water for rest is part of Jel Jungal's, I mean is part of one indivisible ecosystem we would really benefit if we were to sort

[00:30:11] of invite that understanding in the way we think of our economic development projects. The other thing I would like to say, if I may is that I think we need to go refocus

[00:30:22] our lens on land as a tool of social justice rather than as a tool for the markets because I think unless we do that some of the effects that we are talking about are probably

[00:30:32] going to worsen because the whole idea of markets is that it is operating on an economic assumption but as we realize that land is not just an economic resource it's part of an

[00:30:42] indivisible ecosystem so if you just leave it to markets and deregulation and so on I think we're going to have more punishments consequences than if we were to look at land in a holistic

[00:30:51] setting as part of an ecosystem and as integral to the lives of the people and as a tool for social justice and social equity. God, so Nathan what about you? You have to pick one reform okay and

[00:31:04] know you know and I'm going to force you this time you have to be specific in that reform. Absolutely, that's the challenge. This funds I can actually respond very quickly to this. I think all of us at land conflict watch might colleagues, both lawyers, researchers and

[00:31:20] writers believe that one land reform that people want to work towards whatever little we can contribute to is so seem better, can your handling of tenorial rights and just access to common lands for people who are dependent on common. Both in periopen areas and in rural

[00:31:40] forested areas I think this is particularly important we think at a time when a sense of demarcation of lands of rights of people over property is being forwarded both through technological advances and administrative changes. So one space which will impact the most number of people

[00:32:00] is what's generally called comments and common lands. We have one of the most complicated, the most regressive management of these spaces which really is what more than 400 to 500 million people are dependent upon directly and indirectly for their basic livelihoods. Nothing more.

[00:32:21] And to see a tenorial regime that acknowledges legalizes and accepts how these lands are used by marginal communities for us that I think is the biggest reform that would really change the nature of economy. Unlock economic advantages that have been denied to a

[00:32:43] large segment of society provide them as you said that one base key factor of production that allows them to find their own value in society and unlock this society which I think economically

[00:32:56] we've kept them in slavery by denying them those rights. To us I can see W I think that is the one reform I can quickly say is what we look forward to and we want to work towards. Fantastic. So

[00:33:08] thanks Namita and Nithin. I think really good conversation and I hope you enjoyed it as well and I hope listeners enjoy listening to this as well. Thank you so much Pahakori for having us. Thank you, Bharkavi. Thank you Nithin for being part of this conversation.

[00:33:26] Thanks for tuning into our podcast Land of a Billion, produced in association with the Property Rights Research Consortium. Don't forget to catch new episodes every alternate Friday where I will bring you a rundown on the latest church around land and housing in India.