Land Law in India

Astha Saxena

• Publisher: Routledge India
• Year: 2019
• ISBN:
  9781000682458
• Edition: 1
• Topic: Política y relaciones internacionales
• Subtopic: Política

This book is a critical study of the laws regulating landownership patterns. Land and land law are woven into the fabric of our society and are therefore integral to the substantive questions of equality and developmental ideologies of the state. This volume uncovers the socio-economic realities that surround land and approaches the law from the standpoint of the marginalized, landless and the dispossessed.

This book:

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• Undertakes an extensive survey of existing legislations, both at the union and state level through a range of analytical tables;

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• Discusses the issues of land reform; abolition of intermediaries and tenancy reform; need for redistribution; ceilings on agricultural holdings; law of land acquisition; legal construction of public purpose and displacement, dispossession, compensation, and rehabilitation to construct a case for redistribution;

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• Inquires into the phenomenon of landlessness that widely prevails in India today and lays bare its causes.

An invaluable resource, this volume will be an essential read for all students and researchers of law, political studies, sociology, political economy, exclusion studies, development studies, and Asian studies.

Part I

A general introduction to the law of land

1 The construction of an Indian right to property in land

Objectives

With this book, I seek to achieve a range of distinct but connected objectives. The first, and probably the widest, is to read, assess, and analyze the law of land in India. Our analysis will be predominantly legal with a specific reference to agrarian land. Instead of narrowing the line of enquiry to a group of land laws or to laws belonging to one state, we shall tour the land laws of (almost) all states in the country and attempt to ascertain the nature of Indian land law, if the subject may be called so. Through the scheme of the following eight chapters, we would seek to understand the manner in which land is regulated by law and the consequences that follow such regulation. Secondly, and hopefully, I would attempt to make land laws seem less boring. Especially in a society like India, land, its relations, and its law have shaped a tremendous amount of the societal–political–economical dynamics. Land law is usually read severed from such realities and, therefore, is rather unpopular among law students. Moreover, the use of vernacular terminology in the drafting of these legislations does not aid them to gain any nationwide popularity. I would also attempt to undo some of the common confusions and misconceptions in Indian land law: that land and property are almost the same thing, that as a legal system it is bogus (and not really important), and that land acquisition is the only form of land law that exists in our country.

The third objective, which would also be one of the central themes of the following discussion, is to present land as a dynamic, humane entity that is intricately associated with the lives of people, instead of limiting it to the legal idea of property. I would argue that in an agrarian economy, land tends to possess a certain character to its existence. Even when it is to be regulated within the realm of property rights, it fits the bill with great difficulty and not without dire consequences. The law of land, therefore, has the excessively complex task of understanding the sociology of land, if it seeks to regulate it in any effective (and not counterproductive) manner. The legislations that are regulating land need to incorporate the people who build their lives and relationships around that piece of land. They need to be careful about keeping land close to its people, where it belongs. As we go through the following eight chapters, we would assess the manner in which law perceives and regulates this relationship between land and people. Land’s close association with socially, economically, and politically relevant facts necessitates such an outlook.

The fourth, and the most significant objective of this work, is to make a case for redistribution. I would argue that the construction of an Indian right to property in land cannot remain restricted to liberal notions of individualism and security against the state. The nature of land demands that the principles of equality and fairness are built into its distribution and access. Land is a socio-economic entity and, therefore, the right emerging from it would also necessarily consist of similar characteristics. The agenda of redistribution that the law undertook and then demolished from the 1940s to the 1960s must receive serious reconsideration.

I probably seem quite ambitious in my anticipated achievements through this book; but the recent political climate has necessitated an urgent need for the legal community to re-examine its resource allocation systems. Capitalistic tendencies have been infiltrating our economy more than ever, and land is a resource that they all desire to possess. It is not that land was, at any point of time in history, not a subject of contestation between different classes of people, but recent economic developments have widened the class gaps to such an extent that no fair competition is possible. The traditional social structures that were built on a foundation of oppression and constructed around the right to possess land, are now flourishing in contemporary forms with monetary infestations. Especially where land is a source of sustenance, the need for a reassessment of the law is pressing.

The distinction between land and property

The land–property dimension, with which I begin here, is a rather slippery slope. The property regime consists of multiple terms, the distinctions between which are mostly unclear: for example, ownership, possession, titling, estate, public land, real property, right to land, eminent domain and sovereignty; land and property are often used interchangeably; it is uncertain whether land rights are distinct and different from property rights, and relationships that people construct around land (which we could call land relationships) are regularly construed as those that are based on property rights (which I would argue to be a problematic legal perspective). It is astonishing to observe how a complicated entity such as land is wrapped within a legally constructed concept of property, which in itself is founded on no consistent ideology.¹ Property is claimed to be a multifaceted, sometimes self-contradictory, and internally irreconcilable notion which is manifested in plural and yet inseparable cultural discourses.² When such a legal concept strikes chords that do not quite resonate with land and its multifarious dimensions, there is inevitably a lot of noise.

It is a fundamental characteristic of land that it can both provide food and give space for a home. Besides of course, all the other communitarian and private needs that it caters to.³ Relations around land are, therefore, also most fundamental in their nature. They determine who would have the power to make use of land and how others would be placed with respect to that parcel of land. If everyone requires food and a home, then essentially, land relations would determine the distribution of basic resources in a society. Owing to this fundamental quality, land represents a manifestation of power in a society⁴ – the person who gets to use it the most or dictate how others would use it, acquires, in essence, a socio-political power that is also one of the main factors regulating the flow of the economy. All land relations in India are, thereby, heavily associated with the class–caste dynamics of a particular region. Distribution of land, then, would be a dominant feature of the nature of these relationships; the more unequal the distribution of land, the more unequal would be the relations surrounding it.

Relationships built around the idea of property, on the other hand, are a person’s relationship with another with respect to anything⁵ that is capable of being owned – and the capacity to own a thing is bestowed on a person by law. The legal system of property rights is constructed to create a system of relational aspirations – with a notion of private ownership at the core of its functioning. A person owning a particular thing has, in her bundle of rights, the particular right to exclude all others from interfering in her enjoyment of that thing. This allows her to remain secured from any intervention, either from the state or any other individual, and her individual liberty is ensured. The difficulty arises in this system where her ownership is to be interfered with: where the state claims eminence in its domain over the use of that thing or where any other individual claims a better title to her object of property. Property relations, therefore, revolve around the dynamics of the right of ownership over a thing – the thing is a commodity which is capable of being bought and sold, and the relations around that commodity are dominantly economic.

When land relations are construed as property in law, much is lost in translation. Notions of private ownership, exclusive control, and individual liberty form the core of all land relationships, and any other social or cultural associations are pushed to the periphery. Neither do such property relations even consider the impossibility of actually owning lands at individuated levels,⁶ nor do they understand the basic need for equity in their interactions.⁷ Ownership in land, especially private, cannot be construed as a single unique relationship between a person and a material resource, but is, in fact, an open-textured relationship many aspects of which need to be politically and consistently determined.⁸ When land relations are property, the distribution of basic food and shelter is entirely market driven, and any welfare actions of the state are also ultimately dictated by such market tendencies. Land becomes an exclusive commodity which is a bountiful, perpetually profit-making resource, instead of a multifarious resource that perpetually secures livelihoods and therefore also centres on the culture of humanity and its sustainability. From the multifarious senses in which land is perceived and utilized in reality, the legal concept of property is able to meagrely acquire only one or a maximum of two meanings.

When I say that land is social and is deeply associated with people, I imply a variety of things. First and foremost, I mean to state that people build relationships around land that are not merely economic and social but also ancestral and emotional. As against the popular notions of ownership, whether private or common, the idea of belongingness to lands is prevalent among indigenous populations.⁹ Land is not merely the source of their livelihood but also of their knowledge and life. Secondly, I mean to suggest that since the relationships are both social and economic, there are multiple ways in which these relationships overlap with one another and for law to engage with such overlapping is a difficult endeavour, especially when its perceptions are limited to thinking in the paradigm of property. These relationships often overlap with one another without being necessarily conflicting, until they fall within the realm of property law. Thirdly, I also mean to press the distinction between speaking in terms of land on one hand and land relationships on the other. When we perceive land singularly and merely as a resource towards development, not only do we undermine the people that have formed relationships around it but we also undermine the conception of rights that are built into land. Those rights are always secondary to the notion of eminent domain and are, thereby, customized to suit the bill. The moment we severe people from land, it is easier to unilaterally argue the ultimate power of the state to decide on the best use of land.¹⁰ The strength of a right to land lies in the inclusion of the right holder along with her political and social identity into the legal perceptions. Fourthly, and most importantly, I press on this association for the fact that it requires the law to perceive land differently from any other form of property, for otherwise the legal reality generated from the process is far from its social reality and often only multiplies the already existing confusion in land matters rather than effectively regulating it.

Further, construing land as property is an archaic perception of legal philosophy.¹¹ Land has been, in fact, one of the classic examples used in any study of property law and hence the synonymy. However, if, for the moment, we do not press the distinction any further and assume that the legal regime of property rights can be exercised to regulate land relations, then, we may be able to at the least construct a distinct area for land within the property dimensions. I am speaking here of a conceptual space within the ideology of property rights that does not hold on to a flattened understanding of land as property; instead, it dares to undertake the task of keeping the law as close to social realities as possible. This could be premised on a sustainable understanding of land, one that humanizes the resource instead of separating people from their land.

The idea of property has been strongly propagated on the grounds that its secured existence can lead to the ethical development of a person.¹² The existence of property for a person is considered to probe elements of self-assertion and prudence;¹³ a legal construct for persons to have the opportunity to lead a dignified existence in society. Property is associated with ideas of liberty – liberty for people to realize their full potential and achieve self-fulfilment.¹⁴ In a scenario where such a relationship between person and property is established, it has been asserted by the Hegelian approach¹⁵ that this necessarily introduces a distributive element in the idea of property. One cannot argue on one hand that property owning is necessary for the ethical development of individuals and then, on the other, affect unconcern about t...