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1. PROPERTY AND SOVEREIGNTY: Creating, Destroying, and Resurrecting Property Rights in British India (1600-1800)

Author:
Namita Wahi
Publication Date:
12-2020
Content Type:
Working Paper
Institution:
Centre for Policy Research, India
Abstract:
This paper, the first in a series of three papers, constitutes the first systematic legal attempt since the late nineteenth century to describe the changing configuration of property rights of zamindars (landlords) and ryots or raiyats (peasants) relative to the English East India Company in colonial India over a period of two hundred years from 1600 to 1800. This period begins with the Company’s first arrival in India to the court of the Mughal Emperor Jehangir in 1600 as merely a trading company. It ends with the introduction of the Permanent Settlement in Bengal by Lord Cornwallis, the Governor General of Bengal in 1793, pursuant to the Company’s exercise of sovereign authority over the provinces of Bengal, Bihar, and Orissa. As described in the paper, during this period of great political upheaval, scandal, and intrigue, as the East India Company gradually transitioned from a monopoly trading company to a conquering and then an administering power, Company officials, including the Governor General, and later the Supreme Council of Bengal, created, destroyed, and resurrected property rights of landlords and tenant cultivators. Following a series of experiments with land revenue administration and the lives of zamindars and raiyats, with the sole objective of maximising revenue for the East India Company, Lord Cornwallis introduced the Permanent Settlement of Land Revenue in 1793, which completely destroyed the rights of peasant cultivators in favour of zamindars, and wreaked great injustice and misery upon the people of Bengal. It would take nearly seventy years for British government to begin to reverse this injustice through tenancy protection legislation enacted in 1859, and this reversal in law would only be completed following land reforms introduced by provincial governments post India’s independence in 1947. These later developments will be the subject of the next two papers in this series.
Topic:
Sovereignty, History, Governance, and Property
Political Geography:
United Kingdom, South Asia, and India

2. Land Acquisition in India: A Review of Supreme Court Cases (1950-2016)

Author:
Namita Wahi, Ankit Bhatia, Pallav Shukla, Dhruva Gandhi, Shubham Jain, and Upasana Chauhan
Publication Date:
03-2017
Content Type:
Special Report
Institution:
Centre for Policy Research, India
Abstract:
Context: India faces serious challenges in creating development processes that generate economic growth while being socially inclusive, ecologically sustainable, politically feasible, and in accordance with the Rule of Law. Equitable and efficient acquisition of land by the state for economic development projects, including infrastructure and industry, lies at the heart of these challenges. Simultaneously, securing constitutionally guaranteed land rights to the poorest and most vulnerable communities in India against the state and other dominant communities, has been considered crucial to their economic and social empowerment. Land is not only an important economic resource and source of livelihoods, it is also central to community identity, history and culture. Unsurprisingly then, throughout India, dispute over state acquisition of land that deprives people of their land rights spans various dimensions of economic, social, and political life. How do we mitigate this conflict? The CPR Land Rights Initiative report on ‘Land Acquisition in India: A Review of Supreme Court cases from 1950-2016’, offers some preliminary answers to this question. Not only is this report the first comprehensive country-wide study of land acquisition disputes since India's independence, but also for the first time ever analyses these disputes along various metrics, such as i) public purpose, ii) procedure for acquisition, iii) compensation, iv) invocation of the urgency clause, v) pendency of claims, and vi) tracks trends with respect to distribution of disputes across geography and time, and central and state laws. The Report also analyses litigation under the newly enacted Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR Act) for the three year period, 2014 to 2016. A detailed presentation of the findings from the report can be accessed here. Key findings: Reasons for inequity between state and land losers: The Report concludes that the political and social contestation over land acquisition stems from the inherently coercive nature of the land acquisition process, which creates a severe imbalance of power between the state and land losers. While much of this imbalance was created by the text of the Land Acquisition Act, 1894, a considerable part of it could also be attributed to executive non-compliance with the rule of law. The result is a situation of great inequity for the land losers. Legal reform under the LARR Act should be implemented by government, not subverted to redress these inequities: The Report finds that specific provisions of the LARR Act are steps in the right direction to redress the imbalance of power that was built into the Land Acquisition Act, 1894 in so far as: i) they empower livelihood losers along with title-holders to bring claims for compensation and rehabilitation, ii) bring compensation requirements in accordance with existing reality, and iii) introduce requirements of consent and social impact assessment. The Report shows that litigation helps channelise political contestation of state action into legal as opposed to extra legal disputes. Therefore, by empowering hitherto disempowered land losers to bring claims under the LARR Act, the Act will help preempt extra-legal conflict. Since conflict inevitably stalls or derails legitimate development projects, it is in the interest of the government to comply with, and not subvert the LARR Act. Legal reforms must be supplemented by administrative and bureaucratic reforms: The Report highlights that legal reform is a necessary but not a sufficient precondition for ensuring greater equity and efficiency within the land acquisition process. In the absence of administrative and bureaucratic reforms, the introduction of the LARR Act will not succeed in eliminating inequities and inefficiencies embedded within the implementation of existing land acquisition procedures. In fact, the increase in procedural requirements under the LARR Act implies an even greater need for securing executive compliance with the rule of law, in order to translate the equities intended by these additional procedures into reality for land losers. Types of administrative reforms required: Such administrative reforms include building of state capacity to meaningfully comply with the increased procedural requirements stipulated by the LARR Act, and designing institutional structures that incentivise such compliance with the rule of law. This, in turn, requires a serious mind-set shift within the government toward accepting the reform enshrined in the LARR Act, and not subverting it as we have seen in both the LARR Ordinance, and the state amendments to the LARR Act, as also the rules adopted to implement the LARR Act in the states.
Topic:
History, Reform, Economic growth, Land Law, Courts, Supreme Court, Rule of Law, and Land Rights
Political Geography:
South Asia, India, and Asia