Security of tenure and the social function of land in India

Miloon KOTHARI, Shivani CHAUDHRY, 2014

The majority of the Indian population, in urban as well as rural areas, lives in extremely inadequate and insecure conditions without basic services, including access to water, sanitation, food and healthcare.

Socio-economic indicators as well as statistics related to housing in India reveal stark inequalities and grossly inadequate living conditions. Against this backdrop, the central government has embarked on several legal and policy initiatives, which at one level aim to provide tenure security while on the other attempt to appease the real estate industry and promote private investment. Given this situation, there is an urgent need in India for the adoption of the human rights approach and a harmonisation of laws and policies to ensure that adequate housing and protection of land rights is realized for all. This paper, while explaining the context and major challenges in India, aims to propose some solutions.

Background

According to the Census of India 2011, around one out of every six households in urban India (17.4%) lives in an informal settlement (slum), while the total number of people living in slums was estimated to be 65 million in 2011. Three Indian cities, Delhi, Mumbai and Kolkata are home to 17% of the world’s population that lives in informal settlements.

Large infrastructure projects, including dams, ports and mining, environmental conservation projects, urban renewal and city beautification schemes, and designation of large areas as tax-free Special Economic Zones (SEZs), have been responsible for the displacement of millions of families, most of whom have not received rehabilitation. India is estimated to have the highest number of people displaced annually, around 65-70 million since independence in 1947, as a result of ostensible ‘development’ projects. India also has the largest number of rural poor as well as landless households in the world. Land ownership is highly inequitable with 60 per cent of the country’s population controlling 5 per cent of the country’s land, and 10 per cent of the population controlling over 55 per cent of the land. Forced land acquisition and the failure of rehabilitation coupled with a severe agrarian crisis, and growing landlessness and homelessness, contribute to ‘distress migration’ of the rural poor to urban areas in search of livelihoods¹.

The two facets of the housing crisis consist of: (1) the promotion of a neoliberal paradigm of development, which in its attempt to increase industrial development and foreign investment, and to create ‘world class, slum free cities’ promotes evictions and displacement; and, (2) the failure of the state to invest in and provide social/ low cost housing. The lack of affordable housing results in the majority of the poor being forced to live in extremely inadequate conditions in informal settlements / insecure housing or on the streets. The national urban housing shortage for the period 2012-2017 is estimated to be 18.78 million houses, 95.62% of which is for economically weaker sections and low income groups. The paradox is that despite an acute shortage in urban dwelling units, a significant number of houses in urban India are lying vacant; 11 million houses according to the 2011 Census of India. In rural India, the housing shortage for the period 2012-2017 is estimated at 43.7 million houses, of which 90% is for ‘below poverty line’ families.

Security of Tenure and the Social Function of Property and Land

Tenure in urban India consists of various kinds, depending on the nature of the settlement, the city/town, and the governing state laws and policies. It includes ownership, lease, rental housing, and other temporary arrangements. The majority of housing in informal settlements is, however, characterised by the absence of the legal security of tenure, which results in a large percentage of the population living in extremely insecure conditions. It is thus critical that protection against forced evictions and displacement forms a cornerstone of any policy providing security of tenure².

The Government of India, in 2009, launched a national scheme called Rajiv Awas Yojana (RAY), which intends to provide property rights to all slum dwellers and to “build a ‘slum free’ country that provides shelter and basic services to the urban poor.” The experience of pilot projects under RAY, however, has highlighted the important need to integrate the human right to adequate housing framework in its implementation. It is important to understand, and also to reflect in policy, that tenure security is integrally linked to other elements of adequate housing. Housing that provides tenure security but is inhabitable and is located on the outskirts of a city, away from places of work, education and healthcare, cannot be considered adequate. Similarly safeguards need to be built into the policy to ensure that land reserved for economically weaker sections is not diverted for commercial purposes under the guise of providing ‘security of tenure’ through public-private partnerships, as experience has shown. Security of tenure, therefore, as a component of the human right to adequate housing has to be linked to the human rights to work/livelihood, health, education, food, water, and security of the person and home.

Linked to the principle of ‘minimising displacement’ is the critical need to consider, as another cornerstone of housing policy, the imperative of in situ upgradation of housing and the promotion of inclusive planning and integrated neighbourhoods.

A third principle in understanding the importance of security of tenure for realising the human right to adequate housing, is the implementation of the concept of social function of property and land into law, policy and practice.

The social function of property/land essentially integrates the notion of human rights into property rights. It also expands the concept of property from an individual right to that of a collective right. In this sense, property is not merely an economic asset of an individual who owns it, but includes a concomitant purpose of promoting social well-being, equity, justice, gender equality, and environmental sustainability in society. It implies that property ownership must be equitable, and must enable all residents of rural and urban areas to access, use, own and benefit from it.

Integrally linked to the social function of property and land is the concept of the ‘right to the city/village’. The right to the city can be understood as a collective right of everyone to the enjoyment of the city and a right to participate in its development, within the equitable principles of social justice, environmental sustainability and democracy³.

Several new policies and laws aimed at addressing the housing and land rights crisis in India are in the process of being developed. These include the draft Model State Affordable Housing Policy for Urban Areas, the Draft Model Property Rights to Slumdwellers’ Act, and the draft Real Estate Regulation Bill. While the provision of affordable housing and in situ upgrading occupy the rhetoric of these draft policies and laws, the challenge is to ensure that the implementation is based on human rights standards and not on market interventions and private investment. In a significant step forward, the government has recently passed the Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation and Resettlement Act 2013, which replaces the 1894 Land Acquisition Act.

Recommendations towards the implementation of the social function of land

Any housing and land policy and legislative initiative that the Government of India takes has the potential to positively change the housing and living conditions of the vast majority of India’s population that continues to reside in precarious conditions. It is imperative, therefore, that these initiatives of the government are firmly based on its human rights obligations as contained in the Indian Constitution and international human rights instruments. It is also important for the implementation of human rights principles, including: the indivisibility of human rights, non-discrimination and inclusion, gender equality, progressive realisation, participation and consultation, non-retrogression, and sustainability to ensure the practical application of the social function of property and land, and realisation of the human rights to adequate housing and land in India.

The adoption of a human rights approach will include the insertion of human rights safeguards that are a necessary component of policy reform, as the country moves forward in its attempt to balance the realization of housing and land rights with development. The following recommendations contain a brief sketch of what such an approach would contain.

The principle of ‘social function of property’ should guide all land use planning to ensure that land is not diverted to meet the interests of the rich at the expense of the poor. For example, shopping malls must not be allowed to come up on land reserved for public housing or public schools and hospitals. Social function of property also implies that there should be limits on the size of landholdings to promote equality in land ownership. For property and land to meet its social function to protect and promote human rights of the larger section of society, it is imperative that human rights-based land reform is undertaken, in both urban and rural India. To this effect, the Government of India has drafted a National Land Reforms Policy and has proposed the introduction of a Right to Homestead Act, aimed at redistributing land to the landless across India to enable them to construct housing as well as cultivate a ‘kitchen garden’ or subsistence crops to supplement their food and/or income. It is of critical importance for the majority of Indians that both the policy and law are passed and implemented at the earliest. The government should also implement policies that allow for public and private properties which are vacant, unused, underused, or unoccupied to be put to full, productive use, including by redistribution to the homeless and landless.

Given the significant variations in income and nature of housing and living conditions in India, it is important that the notion of security of tenure is premised on the concept of the ‘continuum of housing’ needs. Tenure should accommodate rental, ownership, and cooperative forms of living. The provision of security of tenure, as a collective right of communities, must also accommodate the needs of large populations of indigenous and tribal peoples for whom security of land tenure is critical. The crucial links between housing, livelihood and health must be recognised to enable work places to be situated close to places of residence. Facilities for home-based work, especially for women, should be provided.

Private investment in areas such as housing and delivery of basic services must be controlled. The state should regulate real estate speculation by developing suitable policies to fairly distribute the burdens and benefits of development processes, and by adopting economic, taxation, financial, and budgeting tools that seek to realise equitable and sustainable development. The Real Estate (Regulation and Development) Bill needs to include stringent controls on indiscriminate speculation, including punitive action against those who violate planning laws such as reservations for low cost housing.

Efforts should be taken to ensure that the urban and rural poor are provided adequate housing and basic services, and to progressively ameliorate their living conditions, in situ, as far as possible. Their contribution to the economy must be acknowledged and laws should not discriminate against them or criminalise them. In this regard, all state and central anti-vagrancy laws should be repealed, including the Bombay Prevention of Begging Act, 1959.

The right to land must also be recognised and upheld to ensure equality in ownership and use of land. This includes the right to collectively own and manage land and property. This would ensure protection against forced evictions, check real estate speculation and land aggrandisation, enable sustainable development of settlements, promote collective agriculture and natural resource management, and prioritise social uses of land for purposes such as public housing and playgrounds. Land laws and land use policies should also define ‘public interest’ to prevent the takeover of land for undemocratic purposes and should revoke the principle of ‘eminent domain’ since it is largely misused by the state.

Adequate policy measures and budgetary allocations must be made to promote social housing for the economically weaker sections. Participatory planning processes should be encouraged that ensure the creation of mixed land use and integrated neighbourhoods, and non-discrimination in allocation of housing and basic services within cities, towns and villages. Legal security of tenure must be provided to all families. This should encompass multiple tenure options and include provisions for collective ownership of housing and land, including by groups of women. Rental policies should be strengthened in favour of tenants and measures should be undertaken to promote the use of vacant housing. The principle of non-discrimination, which calls for special protection and priority to the rights of the most marginalised groups, and the principle of gender equality, which insists on substantive equality for women at all levels, must be respected and implemented in all schemes, plans, policies and laws.

While the Government of India has initiated some progressive legal and policy changes, the realisation of housing and land rights for the majority of Indians will be possible only through the consistent adoption of the human rights-based approach and a strong political will, at all levels of governance, to implement national and international human rights and environmental laws.

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