Court battles underline complexity of India’s myriad land laws
Reuters | July 10, 2019
BANGKOK (Thomson Reuters Foundation) – Recent court rulings have underlined the complexity of India’s numerous land laws, which have sparked conflicts and made it harder for poor farmers and indigenous people to access justice, analysts and lawyers said.
Last week, the Supreme Court ruled that indigenous people in Meghalaya state owned their land and its resources, and that only they could permit mining, after years of illegal mining devastated the environment and their livelihoods.
Also last week, the Madras High Court ruled that all land acquisitions by Tamil Nadu state after September 2013 under state laws were illegal and the land must be returned – unless already in use – as the laws bypassed the federal land acquisition law.
“Finding a solution to land conflict is one of the foremost policy challenges for India,” said Namita Wahi, who heads the Land Rights Initiative at New Delhi-based think tank Centre for Policy Research.
“Competing historical and policy narratives of property rights have resulted in numerous, conflicting laws, leading to legal disputes,” she said.
“The problem is compounded by administrative failure to comply with the rule of law.”
A study of eight of India’s 29 states by CPR showed there are more than 1,200 laws related to land. Some dated back to the colonial era more than a century ago, said Wahi.
“No government has ever attempted to rationalize existing land laws. But this is the need of the hour,” she said.
With a population of about 1.3 billion people on a land mass less than half the size of Australia, rising pressure on land in India for homes, highways, airports and industry is triggering conflicts.
Across India, more than 700 land disputes affect nearly 8 million people, according to research firm Land Conflict Watch.
Many of these cases end up in court.
Matters related to land and property made up about two-thirds of all civil cases in the country, according to a 2016 study by Bengaluru-based legal advocacy group Daksh.
About a fourth of all cases decided in the top court in the past 70 years were related to land, CPR’s research showed.
But anyone approaching the court must be prepared for a long wait, as a land acquisition dispute in the Supreme Court can take up to 20 years to resolve, according to CPR’s research.
One of the biggest tests of India’s land laws and states’ compliance with the rule of law is the ongoing case against the Forest Rights Act (FRA) in the Supreme Court.
Millions of forest dwellers and indigenous people whose land claims were rejected under the 2006 law may be evicted because of a failure to implement the law that recognized their right to inhabit and live off forests where their ancestors had settled.
Conservation groups say the law hurts wildlife and causes deforestation. Meanwhile, the Narendra Modi-led government has drafted a new forest policy that would make the FRA ineffective, according to land rights groups.
The top court is set to resume hearings on the FRA on July 24.
“The Ministry of Tribal Affairs is committed to defending the constitutional validity of FRA and safeguarding the interests of tribals,” said a senior ministry official who asked not to be named as the matter is in court.
“We have seen the draft of the new forest policy, and we have offered feedback, so that it does not negate the FRA,” the official told the Thomson Reuters Foundation on the phone.
India’s Land Acquisition, Rehabilitation and Resettlement Act (2013), passed by a previous government led by the Congress party, replaced a colonial-era law with an aim to safeguard farmers.
But land is a state issue, and several states have amended provisions of the law that require consent from farmers, a social impact assessment, adequate compensation and rehabilitation.
State officials say the law delays land acquisitions for industrial projects that are key to generating jobs and improving livelihoods of tens of millions of people.
Last year, the top court issued notices to five states, on the basis of a plea filed by land rights activists who said the amendments went against the federal law.
“Given how brazen various state governments have been in diluting the provisions, a challenge in the courts is the only realistic option,” said Suhrith Parthasarathy, a lawyer who argued against Tamil Nadu state’s land laws.
“There cannot be differing standards employed by the state to acquire land. Ultimately, at some point the Supreme Court will need to settle these questions,” he said.