3.4 Women and land: a need for multi-level transformation

Remedying the exclusion of the majority of women from access to and control of rural land in India is one of the most significant steps that could be taken toward enhancing the country's rural livelihoods. It is also among the most challenging. While women in India have the legal right to own land, very few do. For those women who do own land, ownership rarely translates into control of the land or of the assets flowing from the land.^[82]

From a purely legislative standpoint, equalization of land rights for rural women appears a straightforward task: put teeth to the Constitutional pronouncements against gender discrimination, revise inheritance laws, expose customary laws and traditional practices to scrutiny and redesign, and then sit back and wait for market forces to operate.

But the wait could potentially be eternal. Without more, legislation and policy pronouncements seldom penetrate the surface of rural livelihoods and are ultimately impotent against the undertow of the established power structures inherent in most rural Indian households and villages. To date, the patriarchal currents running through rural lives and institutions of local governance have proved far more influential and persistent than any law or policy. Interventions hoping for genuine change in the extent to which women control land must be directed at the multiple, interrelated institutions (political, legal, religious, and social) that have established - and continue to reflect and reaffirm - the patriarchal ideology that dominates India's rural society.

The impact of gender inequality on livelihoods

The debilitating effect of women's unequal rights to access and control rural land has been well documented.^[83] The impact on livelihoods is particularly marked in India, where men migrate to expanding non-agricultural employment opportunities and women comprise a growing percentage of the rural population.^[84] Women's literacy rates, child rearing obligations, and cultural constraints make them less qualified than men for non-agricultural employment.^[85] Eighty-six percent of female workers in rural India are dependent on agriculture for their livelihoods.^[86]

Despite this growing dependence on agriculture, rural women's ability to access and manage the benefits from the land to which they are tied remains highly restricted. The cost of excluding women from control of land and its resources is significant: where women direct the use of income from productive land, they tend to spend the money to meet the basic nutritional, welfare, and educational needs of their children and family.^[87] Conversely, where men control the use of household assets, they tend to spend money on personal goods and to fulfill individual desires.^[88] Gender equality in land rights is thus both a livelihood objective in itself and a powerful means of eradicating poverty.^[89] Increasing women's control over land can positively and significantly influence the welfare of the country's next generation.^[90]

Rural women's lack of land rights also limits their access to the other livelihood assets that flow from the control of land. Few women have control over the income generated from the land their households cultivate. Fewer still are able to obtain loans or credit based on the household's land, or to exercise significant bargaining power within their communities. Instead, women are dependent on their relationships with male family members for their economic security and social status.^[91] If those relationships terminate by death, divorce, or other circumstances, the women are left without any assets on which they can rely to sustain their livelihoods.

Consideration of methods for addressing the disenfranchisement of women requires a review of the avenues by which women are most likely become landowners and attain control of the assets that flow from land, the limitations of those means, and possible alternative approaches to achieving gender equity in land rights.

The narrow path to women's land ownership

The channels through which India's rural poor are most likely to become landowners (and thus be in a better position to control and manage land) are a) laws relating to inheritance; b) government land distribution programmes; and c) the land market.^[92] All three sources of land rights are skewed - in structure, operation, or both - against the equal participation of women. That said, with some revision to the structural underpinnings and execution, all three sources offer potential for an increasing women's participation in the future.

Inheritance laws

India's Constitution mandates gender equality,^[93] but the command of non-discrimination does not reach the religious and customary laws that dictate most property rights relative to marriage, divorce, and inheritance.^[94] For the 82 percent of India's population that is Hindu^[95], the Hindu Succession Act, 1956 governs rights relating to intestate succession, i.e. inheritance in the absence of a will. The Succession Act provides for the devolution of separate (usually self-acquired) property in equal shares to the male and female children and widow of the deceased, and if the deceased is male, his mother.^[96] In contrast, joint family property, i.e. ancestral property and property owned by the family as a unit, devolves by survivorship. Traditionally, male family members became "co-parcenars" and received an undivided share of the joint family property at birth; female family members were excluded from sharing in the joint family property.^[97]

Some states acted to equalize the intestate inheritance rights of women under the Succession Act. Karnataka, Andhra Pradesh, Tamil Nadu, and Maharashtra extend co-parcenar rights at birth to daughters,^[98] and Kerala abandoned the concept of joint family property altogether.^[99] However, the amendments do not reach daughters who married before the amendments came into effect, and wives are not granted any right to joint family property.^[100] Furthermore, nothing in the Succession Act precludes a testator from disinheriting his wives and daughters by will. Thus, the rights these state amendments intended to bestow can be circumvented and may ultimately be illusory.^[101]

The intestacy rights of Muslims, who constitute approximately 12 percent of the population^[102], are governed by Muslim Personal Law, as set forth in the Muslim Personal Law (Shariat) Application Act of 1937. The Act grants widows and daughters who are in the same relation as a male family member to the deceased half the share of property received by the male family member. The Act prohibits a Muslim man from bequeathing more than one-third of his property by will, so he cannot completely disinherit his spouse and female children. The Act does not extend to agricultural land, however, leaving agricultural land to devolution by state law or, if state law is silent, custom.^[103]

The various state amendments unquestionably reflect progress toward gender equality in land rights. On another level, however, the patchwork of laws and policies aggravate the problem of inequality by their varied nature, lack of uniformity, and complexity of application. These often half hearted (or at least half realized) efforts at legislative reform only truly succeed in one aspect: they effectively push the issue of female inheritance down to the local level for recognition and enforcement - with predictable results. Fieldwork conducted in Karnataka suggests that the amendment to include Hindu daughters as co-parcenars has had little practical effect on female inheritance patterns. Most women interviewed stated that daughters considered their dowry and wedding costs as their fair share of family resources, and they rarely claimed their legal right to a share of the family property.^[104] Similarly, while Muslim women noted that their daughters could inherit agricultural land (presumably under local custom), they reported that daughters usually elected not to claim a right to the land in order to be free to turn to their brothers for assistance as necessary.^[105]

The fieldwork suggests that amendments to the inheritance laws are not sufficient in themselves to change the patterns of rural land ownership. This discovery is hardly surprising. In order for legislative amendments to change patterns of inheritance, the social and religious norms that impact inheritance (like dowry practices) must be considered, the public must be educated as to the purpose of the amendments, a plan must be developed for their enforcement, and an effort made to assure that inheritance practices change in accordance with the amendments.^[106] Absent a comprehensive education, implementation, and enforcement programme, the legislative amendments have no traction in rural lives and are easily ignored.^[107]

Government land distribution programmes

In comparison to the amount of privately owned land in India, the amount of land available for distribution by the government is minimal.^[108] However, the effect of prior land distribution programmes on women's land ownership is worth reviewing both as a cautionary tale and because opportunities may still exist in some states to amend title for land already distributed.

The majority of land distributed by states has been government wasteland and ceiling surplus land. According to government estimates, as of 2000, states distributed more than five million acres of ceiling surplus land and over 14 million acres of wasteland to selected beneficiaries.^[109] Men received title to the vast majority of the land distributed because they were deemed to be the heads of households or the cultivator of the land.^[110]

Belated government efforts to address the gender imbalance in land ownership through policies dictating how title should be granted in land distribution programmes have suffered from the same lack of enforcement as revisions to discriminatory inheritance laws. For example, West Bengal issued a circular in 1992 requiring government land to be issued jointly in the name of husbands and wives, or to women individually, "to the extent possible."^[111] West Bengal issued the circular 14 years after the land distribution programme began and while the state did issue a second circular restating the joint title requirement, it did not require retroactive application of the policy. As a result, joint titling was not a requirement for the majority of land distributed.^[112]

Moreover, local officials have not uniformly implemented the policy even with regard to land distributed after its adoption.. In three rounds of field research, RDI encountered few cases of government-granted land allocated in the joint names of husband and wife or in the independent name of a woman. RDI found several examples of families that had received government-allocated land after the adoption of this policy who stated that the land was granted solely to the male head of household.^[113]

West Bengal is not alone in its implementation challenges. As another example, in Assam the government issued a policy in 1989 that all government land would be titled in the name of both spouses, "conferring joint title to the husband and the wife of a family."^[114] To date however, the government continues to grant pattas in the name of the husband only. During interviews, officials explained that they had not issued joint pattas because they did not receive a form necessary to convert individual pattas to joint pattas. They also confessed that they did not believe the requirement was mandatory, and joint pattas would be issued only on request.^[115] Not surprisingly, based on results, few requests were made.

While opportunities to increase the number of women landowners have been lost in West Bengal, Assam, and other states, the situation is not completely irredeemable. There is still surplus land available for distribution in these and other states and to which a joint title requirement can be applied. In addition, in West Bengal, RDI encountered significant numbers of land reform beneficiaries who had already received possession of vested land (sometimes several decades ago) but had not yet received their pattas. (This may also be the case in Assam and other states.) There is still an opportunity, therefore, to issue these documents in accordance with policy pronouncements. Finally, state governments contemplating legislation requiring vested land to be titled jointly in the name of husband and wife, or independently in the name of a woman, should consider requiring retroactive application of such legislation.^[116]

The land market and the dowry connection

Approximately 86 percent of India's arable land is privately owned and theoretically the most likely source for women to obtain land.^[117] However, entry into the land market requires a variety of assets, including money (or something of value), bargaining power, the confidence and skills required to manage the land, or the ability to enter into relationships that allow third parties to manage the land. Few rural women have the financial, social, and human assets needed to enter the land market.^[118] Without intervention, it is unlikely that women will gain significantly in land ownership simply through operation of the land market.

Given these restrictions to women's participation in the land market, it is ironic that the rural land market in India is in large measure driven by the lives of women. The marriages that transition women from their families of origin to their husbands' families provide the impetus for a high percentage of rural land sales. Faced with dowry and wedding costs that may rival the price of an acre of land, families with small holdings are often forced to sell or mortgage their land to support a daughter's transition to married life.^[119] The financial assets transfer as a result of the marriage, but women are no more able to control those assets in their new roles as wives than they were in their prior incarnation as daughters.

The problem raised by the practice of dowry and high price of weddings can be combated at its source, as was effectively done among pastoralists in Gujarat. See box.

To the extent that rural communities are unable to alter the practice of costly weddings and dowry, the problem could be confronted at a legislative level. The concept of co-ownership of marital property (known in many western countries as common property) is a means of addressing the unequal ownership of assets within marriage. Under most co-ownership systems, the husband and wife own an undivided one-half interest in the property acquired during marriage, unless the property is a spouse's separate property obtained prior to the marriage or received by one spouse as a result of gift or inheritance during the marriage.^[120] A co-ownership system could give the spouses a joint interest in any dowry received and prevent a husband from disinheriting a wife since he can only control his one-half share of marital property.^[121]

At the same time that the inequities are addressed at the legislative source, programmes can also take advantage of the small plots of land entering the market as a result of marriages by redirecting the land to benefit women who do not have the economic and social independence to enter the land market themselves. For example, the government or an NGO could make grants or subsidized loans to landless women to allow them to purchase land that comes on the market.^[122] An NGO could also purchase land and offer it on lease to a women's group or cooperative as a means of providing women with security and the assets attendant to land rights while also providing a steppingstone to ownership.^[123] While these types of projects do not strike at the source of the problem created by escalating dowry costs or the unequal ownership of property within a marriage, they do make use of the situation to the benefit of women.

Toward an equitable future: opportunities for donors and NGOs

Numerous opportunities exist for advancing an objective of gender equity in land rights. The categories of interventions build on each other: research results provide a foundations for policy consensus-building and advocacy, which in turn can identify appropriate players and projects for development and implementation of NGO activities.

Research

Legal issues

Questions regarding the impact of various methods of increasing women's access to land remain at the level of highly academic discussions without much supporting data, particularly from India. One of the most visible debates involves whether women should seek individual or joint title to land. Proponents of individual title consider it the most useful to women: individual title provides women the flexibility to make decisions about the land, and women with individual title can explore alternative arrangements for the cultivation and management of the land.^[124] Individual title advocates also point to the limitations of joint title. There is no evidence that women with joint title have any more control over the land than those with no title. What benefits does a woman with joint title receive? How does a woman exercise her right to a half interest in land in the event of divorce? How is the ownership transferred at death?^[125]

On the other side of the debate, those arguing for joint title note that it provides women with the resources to be able to invest in the land, it may preserve plots at a sustainable size, and it protects women from seizure of land by male relatives.^[126] These champions of joint title recognize its limitations but consider joint title for women an achievable objective: joint title is acceptable to more of society because it does not appear to break up the family unit through individual property rights. Joint title may have limited value, but it is a step toward reducing gender inequality in land ownership, and a small step is better than no step.^[127] In turn, advocates of individual title of course worry that small, symbolic steps will preclude larger, meaningful steps. And so the debate continues, almost entirely on a theoretical level. Neither side has the benefit of useful amounts of concrete, village-level data.

There is a similar lack of practical information about the necessary components to amend inheritance laws to place women on an equal footing with men. For example, how often is a women able to exercise her right to a share of the undivided land of a family? How often do women exercise a right to partition? What are the social and other factors that prevent women from exercising their legal rights and how can they be overcome? What is the impact on women when they assert their rights?^[128] What are the best methods for reducing the possibility of land being tied up in probate proceedings?

Until concrete information on these issues can be laid out and analyzed, decisions regarding women's rights to land - whether at policy or project level - will be built on little more than supposition and speculation. Field research in selected communities in one or more states will go a long way toward providing the missing foundation. For example, in Andhra Pradesh, legislation currently prohibits a husband and wife from owning land jointly, and the state is, therefore, a good place to obtain information about the effects of individual title and opinions about the possible value (or lack of value) of joint title. In separate interviews, men and women could be queried about their views of the benefits and responsibilities of land ownership, how social and religious norms impact control of land, how men and women have leveraged individual title, and whether joint title is desired. Local credit institutions can supply information about the extent to which land is used as collateral for loans and the impact of particular titling practices on the terms of the loans.

In states where joint title is permitted, in addition to interviews with men and women in villages and credit institutions, local lawyers familiar with rural property matters could be interviewed about the effect of joint versus individual title on probate proceedings, the procedures for and frequency of partition actions, and community practices regarding wills and other less formal devices of estate planning. Information received from these interviews and from meetings with local NGOs and governing bodies can provide the type of concrete information necessary to inform recommendations for legislative change and design appropriate education programmes.

Analytical inventory and review of projects

In addition to research into these types of legal issues, progress toward gender equity in land rights will be aided by a compilation of a comprehensive list and description of land-based, gender-focused, rural poverty-alleviation projects designed and implemented by governments, NGOs, or other actors in India. Such a list will allow future projects to benefit from the experiences of others, provide a resource bank for projects to draw on, and perhaps reveal patterns of successes and failures that can inform future efforts.

Policy and consensus-building advocacy

Workshops and policy forums can serve as a means to gather input on issues and mobilize interested parties to act on matters that have been neglected or have not yet been fully realized. Workshops that include policy makers, legal experts, and NGOs representing women's interests could be a useful process to inform the recommendations outlined in this section. Specifically, workshops could assist in the process of drafting and supporting proposals for amendments to legislation relating to inheritance rights and, potentially, co-ownership of marital property.

In addition to providing support for the amendment of laws and policies, state-level workshops can also provide a forum for floating and discussing administrative and procedural issues. For example, a workshop that included government officials and local block or district level leaders could address the issuance of outstanding pattas in West Bengal in accordance with the policy directive regarding joint title. Discussion of the policy's legal authority and steps needed for compliance could assist in removing any remaining roadblocks to implementation and mobilizing the support of local officials and NGOs.

NGO activities

Legislative changes do not themselves create real rights; technical land ownership does not translate into control of the land nor of any assets that flow from such ownership.^[129] In order to address the gender inequities in access to and control of land effectively, the problem must be confronted at the level of institutional control of land.^[130]

The dominant institution of land ownership and control in rural India is the household.^[131] In order to challenge the principles that inform that institution (e.g. male dominance, skill limitations of women, traditional gender roles), alternative institutions that own and cultivate land must be created.^[132] Any number of non-household-based institutions of land ownership and cultivation are possible: individual ownership with joint investment, individual ownership with joint cultivation, group ownership and group cultivation schemes, and group leasing and cultivation management programmes.^[133] Through these types of arrangements, women's actual control over land can be increased and the assets attendant to that control realized - all without direct challenge to existing power bases.

An example from Bihar.^[134] In the Muzaffurpur district, male migration to jobs in other areas is high and women historically worked the agricultural fields as labourers. The wages were low and the women were vulnerable to exploitation by employers and moneylenders. An NGO, Adithi Mahila Vigayan Kendra, evaluated the situation and negotiated with landowners on behalf of a group of women to grant the women land on batai, a sharecropper tenancy arrangement. The NGO stood as guarantor for the women, and the landowners agreed. The NGO provided the women with training and support, agricultural production increased, and all parties consider the project a success.

This type of group arrangement allows the women to cultivate land under more economically favorable conditions than they could negotiate individually. With very little expenditure of time and resources by the NGO, the arrangement provides high returns to the women in terms of human, financial, and social assets. The women are in a position to receive the benefit of increased production from the land and protection from abuse by landowners and moneylenders. The land project supplies a structure for sharing of knowledge and resources, and a means through which the women can increase their skills, experience, and confidence.^[135]

Behaviors and attitudes change as a result of personal experience. Reducing gender inequality in land rights is, in part, therefore, a numbers game. Through interventions such as Adithi Mahila Vigayan Kendra's efforts in Bihar, individuals, their households, and ultimately whole communities experience enhanced benefits flowing from the land as the result of an alternative institutional design for land management. Similar programmes can be created and supported throughout India, and programme by programme, men and women will have opportunities to experience and evaluate alternative institutions and methods for accessing, controlling, and managing land.

3.5 Possibilities in panchayats: the challenges of local land management

At the village level, India's panchayat system draws its power from a combination of devolved authority and local connection. That combination of strengths, when coupled with capacity and competence, perfectly positions the panchayat raj institutions (PRIs) to support and facilitate the rural poor's attainment of its livelihood objectives, including secure access to land.

Little, if any, research has focused on the panchayats' performance of their devolved responsibilities for land management and, in some limited cases, land allocation and land record keeping. A better understanding of the institution's capacity and the extent to which it has assumed its assigned duties is a necessary first step to helping them to meet their land-related duties. This section discusses India's institution of local governance, its authority in land-related matters, and its extraordinary potential to impact rural livelihoods.

Background on decentralization

Since Independence, a series of legislative initiatives in India have decentralized governance and extended democratic rule to the local level. The 73rd Constitutional Amendment of 1992^[136] introduced a uniform democratically elected local government (panchayat) structure throughout the country. The Amendment also mandated regular five-year local elections and granted women and members of Scheduled Castes and Scheduled Tribes reserved seats.^[137]

The Amendment establishes three tiers: the district-level (zilla parishads or zilla panchayat), block-level (panchayat samitis or taluk panchayat), and administrative village-level (gram panchayat).^[138] In addition to these three bodies, an assembly of all villagers (gram sabha) serves as a watchdog and must approve of beneficiary lists for many development schemes.

The gram panchayats, which are the focus of this section, have the most responsibility and typically carry out implementation programmes. The upper two bodies generally perform supervisory function and serve as a conduit to the state government. The gram sabha is legally required to meet every six months, but in reality is non-functioning in much of the country.

Land-related functions of panchayats

State governments have constitutional authority to delegate their responsibility for preparing and implementing economic development and social justice plans to panchayats.^[139] Within this framework states are free to assign panchayats those responsibilities deemed necessary to enable them to function as institutions of self-governance.^[140] In matters of land, states can assign panchayats the powers and duties necessary for land improvement, implementation of land reforms, land consolidation, rural housing, and maintenance of community assets.

Karnataka and West Bengal provide comparative examples of the duties and responsibilities assigned panchayats. The Karnataka Panchayat Raj Act grants gram panchayats responsibility for maintenance of community assets, removal of encroachments on public properties, development and maintenance of grazing lands and wastelands, distribution of house sites, and maintenance of records related to house sites.^[141] Gram panchayats can acquire, hold and dispose of property,^[142] can be given responsibility for management and maintenance of forestlands and other public lands within a panchayat's jurisdiction,^[143] and can promote the implementation of certain government welfare schemes. They cannot, however, implement land reforms.^[144] This information is summarized in Table 4.

TABLE 4

In West Bengal, gram panchayats have responsibility over the removal of encroachments on public lands and the management and maintenance of grazing grounds, public tanks and other public property within a panchayat's jurisdiction.^[145] Panchayats can acquire, hold, and dispose of property,^[146] and can be given responsibility for bringing wasteland under cultivation, promoting village plantations through social and farm forestry, arranging for the cultivation of fallow land, and arranging for the cooperative management of land and other resources of the village.^[147] At the discretion of the state government, panchayats may also assist in the implementation of land reform measures and rural housing programmes.^[148] West Bengal's act permits the creation of nyaya panchayats for resolving disputes,^[149] but restricts them from addressing some disputes over immovable property, such as those disputes related to intestacy or wills, rents, mortgage foreclosure remedies, and disputes against government authorities.^[150]

Responsibilities for land management

Panchayats' responsibilities for land management are primarily limited to common lands, such as wasteland, pastureland, and forests. Karnataka and West Bengal grant some responsibilities over common lands to gram panchayats. Proper management of these lands is critical; common lands provide substantial benefits to rural people, especially landless and marginal landowners.^[151] Pressure on common lands is high and on the increase, and the amount of common land in India has correspondingly declined.^[152] The panchayats' execution of their responsibilities is, accordingly, subject to significant scrutiny.

Some researchers have charged panchayats with ineffective management of common lands, and bemoan the disappearance of more traditional village-level management.^[153]

These critics of the panchayat system argue that the shift to democratically elected bodies undermined the traditional authority of elders, resulting in overuse or encroachment of common land, and capture of the land by elites for commercial purposes (such as selling wood, using soil for brick making or other produce). Those supporting the traditional governance of common land contend that village elders are better able to enforce unpopular common land management steps, such as user fees and use restrictions.^[154]

Forest protection committees, water users associations, and other community based user groups, which are smaller than panchayats and share a common interest in managing and using the resources, are often more successful resource managers than panchayats.^[155] However, these user groups also add confusion to the governance of the resources because their authority in relation to that of the gram panchayats is ill-defined.^[156]

Involvement in land reforms

As noted above, the Karnataka government has not explicitly devolved land reform implementation duties to panchayats, although gram panchayats do have responsibilities over beneficiary selection. Conversely, the West Bengal government has historically involved panchayats in the implementation of land reforms. The state's well-implemented land reform programmes utilized panchayats in ceiling surplus identification and distribution as well as the recordation of bargadar (sharecropper) rights through the successful Operation Barga. A fundamental ingredient in the success of both programmes was the inclusion of local groups in the implementation of the programme. West Bengal was able to mobilize its panchayats for this purpose because it instituted and empowered panchayats earlier than other Indian states. West Bengal continues to team with panchayats to identify ceiling surplus land, create lists of beneficiaries for distribution of vested land, and distribute pattas for vested land. Panchayats may also play a role in encouraging bargadars to record their rights and residents to apply for homestead land.^[157]

Because the panchayat may be the only channel through which rural communities receive information about laws and policy and is charged with government functions, the need for education of the panchayat members is critical. For example, panchayats drawing up beneficiary lists for government land grants were largely unfamiliar with the West Bengal policies requiring that land be granted jointly to married couples or individually to single women. As a result, they submitted lists that did not include unmarried women, and the Land and Land Reforms officers did not correct the omissions. They simply distributed land to those on the list.^[158]

The involvement of panchayats in land reform in West Bengal demonstrates that these local bodies can be used effectively in successful land reform and complementary land policy objectives. At the same time, the West Bengal experience also exposes the potential harm of using ill-informed panchayats to implement those measures.

Involvement in land-related dispute resolution

Conflicts and disputes concerning rural land are rampant in India and result in substantial social and private costs. Traditionally, informal dispute resolution mechanisms operated at the village-level to resolve disagreements and limited the number of disputes reaching the revenue and justice courts. Rapid appraisals and other anecdotal observations reveal that villagers are requesting that gram panchayats and gram panchayat members to play a role in resolving land disputes and conflicts at the village level.

The legislation does not anticipate this informal judicial role for gram panchayats, and little is known about the jurisdictional basis for the decisions or whether the disputes are resolved in accordance with the law. Nonetheless, the panchayats are potentially performing a valuable public and social function that is worth further exploration.^[159]

Unknown capacity to meet land-related duties

The panchayats' capacity to meet their land-related duties is unknown. Panchayats have been criticized for their inability to assume proper authority over their land duties, and one reason for the problems experienced may be lack of capacity. But problems may also be due in part to the nature of the panchayats' legislative mandate. State legislation generally follows the Constitution's pattern of broadly framing functions instead of formulating clear rules and guidelines detailing the panchayats' responsibilities.^[160] The confusion over responsibilities and duties is compounded by the blossoming number of village-level user groups formed under different development schemes, such as village forest committees, water users associations, and self-help groups.^[161]

Opportunities for donors and NGOs

Research

Research relating to panchayats' land-related duties is largely non-existent. Given the panchayat raj institutions' enormous potential to impact livelihoods, efforts directed toward discovering how panchayats are performing their responsibilities and laying the groundwork for clarifying their land-related responsibilities and identifying appropriate capacity-building measures will be well spent. Research might include:

• Desk research involving a state-level analysis (or one or more states) of relevant panchayat and land revenue legislation to determine what land-related responsibilities have been given to panchayats in law and to identify inconsistencies and lacunae.

• Field research to determine the extent and nature of the gram panchayat's actual roles concerning land management, allocation, use, and land-related dispute resolution. This might include a focus on the panchayats' understanding of their duties, their capacity to fulfill them, their related interaction with government line departments, resource user groups, and other stakeholders, and the resulting impacts on rural livelihoods, especially as it relates to access and use of common property resources.

Policy dialogue

In order to identify the policy implications of the research findings and build a consensus around them with relevant stakeholders, it would be useful to sponsor and conduct workshops on this topic. The workshop(s) could include stakeholders such as panchayat members, NGOs, and relevant government officials. Such workshops might aim to identify future needed action in terms of both the policy and legal framework^[162] and specific NGO activities or government programmes to enhance the land-related capacities of panchayats.

Pilot activities

NGOs working in the general area of PRI capacity-building are thick on the ground, but we are unaware of any activities focused on land-related capacity building. Pilot activities involving collabouration with panchayats and NGOs might involve training panchayat members on various natural resource management topics or otherwise developing the capacity of panchayats to undertake their legal responsibilities concerning land allocation, management, and use. Again, rather than pre-identifying specific activities, it will likely be more appropriate and effective if such activities result from a workshop-type activity as described above.

3.6 Education and advocacy: implementation of existing laws

Laws and policies are only as good as their implementation, and rural India currently lacks the institutions and processes necessary to implement its land policies effectively. Many of India's best-intentioned legislative and project efforts have had little or no impact on the rural poor's ownership of and access to land. In some cases, local officials imperfectly understood new laws and policy pronouncements, they lacked the resources needed to implement them, or they lacked motivation. In other cases, state governments made significant efforts to implement land distribution schemes, but those efforts were not comprehensive and populations of poor and marginalized did not receive intended benefits.

This space between intent and impact is where education and advocacy programmes reside. As described below, very ordinary interventions, such as a well-designed public education campaign or a rural legal aid system, can close the gap between legislative pronouncements and enhancement of the poor's access to land.

Educating the public: the lesson of Operation Barga

The rural poor are among India's least educated. They are often isolated from independent media sources and rely on information supplied by local officials and panchayat members. As discussed in the section on panchayats, if local officials and panchayat members are not themselves educated about changes in law or policy, or if they have no incentive to advise their constituents about a particular issue, there is little hope that the rural poor will receive the information (or the support) that they need to understand their rights and protect their interests.

West Bengal's 1992 policy regarding the issuance of title for government distributed land is an example of rights lost by such neglect. The state made no documented effort to educate the public and train local officials regarding its policy on issuing joint pattas for married couples. Of all Indian states, West Bengal should have known better than to anticipate any change absent a concerted, village-level education and implementation effort; West Bengal learned precisely this lesson in implementing laws relating to the rights of its sharecroppers, which are known as bargadars.

Some background is useful. West Bengal's bargadars spent generations cultivating land in exchange for a share of the produce with no effective protections against abuse by the landowners. The bargadars farmed at a subsistence level and were often dependent on landowners for food, inputs, credit, and opportunities for wage labor. Accordingly, bargadars were beholden to their landowners, and the landowners could threaten eviction and engage in physical abuse and harassment with little or no consequence.^[163]

In 1950, the government enacted the West Bengal Bargadars Act, which was the first legislative effort aimed at empowering bargadars in their relationships with landowners. The terms of the Bargadars Act were ultimately subsumed into the West Bengal Land Reforms Act of 1955 ("LRA"), which, as amended, is the controlling legislation to this day.^[164] The LRA and its subsequent amendments included provisions safeguarding the cultivation rights of bargadars, determining the share of produce paid by bargadars, setting requirements for a bargadar's termination of cultivation, and establishing a jurisdiction for disputes regarding barga land.^[165] On paper, the provisions largely prevented landlords from evicting bargadars, absent good cause.

In reality, however, none of these provisions altered the fortunes of the bargadars because the legislative changes did not give the bargadars the ability to enforce their new rights against the landowners. Despite the legislative enactments, for all practical purposes the bargadars' relation to the land and their landowners continued to be dictated by the same insecurity of tenure that had characterized bargadars for the centuries before.

In an effort to remedy the situation, in 1978 West Bengal's new Left Front government launched Operation Barga.^[166] The programme had a simple goal: to record the names of West Bengal's bargadars in the state's revenue records and thus enhance security of tenure for bargadars. Operation Barga did not confer new rights on the bargadars. Rather, through an intensive village-level education programme, bargadars received the benefit of the already existing legislative protections by assuring they knew their rights as bargadars and by giving public recognition to their status.^[167]

In the course of Operation Barga, over 8,000 meetings were held in the villages of West Bengal. Meetings were scheduled in the evenings, after bargadars had returned from the fields, and included members of panchayats, the legislature, peasant organizations, and voluntary organizations. In addition, the Commissioner of Land Reform and Revenue Directorate were often present. The meetings educated the bargadars and landowners about their rights and obligations and encouraged bargadars to record their names.^[168]

In addition to the village meetings, block-level committees were formed to supervise the implementation of the recording of names and resolve any issues raised. The government also organized district and state-level workshops at regular intervals to monitor progress of Operation Barga and to receive feedback and suggestions from the field. Key officials, including various Ministers, were personally involved with the design and implementation of the programme from start to finish. In addition, the newly designed three-level panchayat system was utilized and empowered through the various stages of Operation Barga, and general rural development programmes designed to encourage agricultural productivity and improve welfare piggybacked onto Operation Barga and took advantage of the institutional structure and momentum.^[169]

Within the first four years of Operation Barga, a million bargadars registered. By 2003, 1.5 million bargadars were registered.^[170] The combination of well considered legislation, political will, and an effective implementation programme finally released the bargadars from their dependence on landowners and moneylenders, and brought them independent status and bargaining power in their communities.^[171]

Many of India's rural women are in the position as the bargadars were in the 1960's and 1970's: where states have acted to increase women's legal access to land, those rights have not been enforced or are meaningless in the context of typical marital relationships, religious norms, and social patterns. Even after the government adopted favorable legislation, it was decades before the bargadars realized their rights. It is easy to imagine women subjected to the same fate and realizing only a small percentage of their rights for decades to come.

It is just as easy to imagine, however, that with the combination of the political will and well-selected, narrowly defined objectives (such as the issuance of joint pattas for all government-distributed land), an achievement rivaling the success of Operation Barga is possible.

Legal aid

Like public education campaigns, legal aid services can provide a substantive and procedural link between legislation and livelihoods. Legal aid clinics can advise the rural poor of their land rights and interests, investigate claims, mediate disputes, and facilitate resolution of cases. Through these types of services, legal aid has the potential to give the poor actual access to the assets to which they are legally entitled.

India recognizes an obligation to provide legal aid to the poor. The Constitution states that justice shall be provided "on the basis of equal opportunity" and free legal aid shall be provided to ensure that all citizens are able to secure justice, without regard for "economic or other disabilities."^[172] Pursuant to this constitutional mandate, states are required to provide free legal services to the poor that include public education, paralegal training, establishment of legal aid clinics in universities, support for public interest litigation, and maintenance of lok adalats, or local courts.^[173]

Despite this directive, India's efforts to address the legal service needs of its poor through government programmes have been largely unsuccessful.^[174] The vast majority of India's poor, and particularly its rural poor, do not have access to legal advice and representation.^[175] The problems include the lack of data on the legal needs of the poor, failure of government technical and financial support for legal services, inadequate organizational development and planning, insufficient numbers of trained personnel, corruption, bureaucratic inefficiencies, and lack of political will.^[176]

The loss to the poor because of the lack of legal services is astronomical. As an example, over the last several decades, the government in Andhra Pradesh distributed over four million acres of wasteland and almost 600,000 acres of ceiling surplus land to the rural poor.^[177] However, a significant percentage of the intended beneficiaries (rough estimates are about 30 percent) do not have formalized rights to and possession of the land they were purportedly granted. In some cases, the poor received pattas but do not possess the land because other people have retained possession or encroached on the land. In other situations, the poor may possess the land but have not received pattas, or the land may be subject to a variety of disagreements, such as boundary location and rights of partition.^[178] For these and other reasons, an estimated 50,000 land dispute cases are currently stalled at various levels of the Revenue courts in Andhra Pradesh.^[179] Many of the cases have been pending for years, creating uncertainty in land ownership, hindering land improvement, and stalling development. The poor - those people whom the state intended to benefit with the land distribution - cannot afford to devote the time to pursue their legal rights to the land or engage the legal assistance necessary to do so.

The backlog of unresolved cases can be addressed with the combination of directed resources and concerted effort. An example of what can be accomplished is evident from the success of a group of law students from NALSAR University, which is based in Hyderabad. With support through a government rural poverty programme, the student group facilitated the resolution of 55 pending land disputes in Warangal District. Through the efforts of the law students, 14 cases were settled or concluded in a matter of months, 11 more are in the process of settlement, and the student group is monitoring the balance through the court system.^[180]

The conclusion of the majority of those who have reviewed India's legal aid programmes is that effective legal aid services must be provided by organizations that are independent of the government (such as that created by the NALSAR students).^[181] Other successful programmes include the Centre for Social Justice, which provides legal aid services to the poor in nine districts of Gujarat, and the Socio-Legal Aid Research and Training Centre ("SLARTC") in Calcutta. SLARTC provides legal services directly to the poor and also organizes highly successful training courses for local social and rural development workers on legal rights.^[182] These individuals transmit the knowledge to the villages through the formation of legal cells within the villages. The cells are staffed by villagers who increase public awareness of legal rights and encourage local people to come to the legal cell for advice and mediation of disputes. Most cases are handled informally and resolved at the village level. More difficult cases are referred to SLARTC, which handles paperwork, communicates with necessary officials, and has a network of 200 lawyers that it can contact and rely on to handle court cases as necessary.^[183]

Legal aid systems established in other countries with a specific focus on land rights also provide instructive models. In 2002, the World Bank funded the Legal Rights Advocacy Project in Kyrgyzstan. The project was designed to provide specialized advice and support to the rural population as they received rights to hold and transfer land following the reorganization and privatization of collective farms.^[184] Under customary law in Kyrgyzstan, elected leaders and the elders of the community serve as advocates for villagers and mediators between villagers, and the legal aid programme used this traditional leadership structure in its design. The project trained and empowered the local leaders in land rights and legal process, linked local leaders to national institutions and resources, and provided on-going information through regular contract with local leaders by a project staff person. The Kyrgyzstan programme supplied the rural constituency with land registration information and managed land rights cases on their behalf.

A similarly successful legal aid programme is operating two clinics in Russia, with assistance of USAID and RDI.^[185] The Russian legal aid centers operate as non-commercial organizations, are staffed with lawyers and an accountant, and provide rural people with the knowledge and legal representation necessary to make active use of their legal rights to land. The clinics are located in cities but the staff travels frequently to the rural areas, providing legal advice on topics such as land inheritance, privatization of land, land shares, and taxation. The clinic staff also disseminates land information to the public by writing articles for newspapers, drafting and posting information notices, and conducting village meetings.

The success of the clinics is in large measure a result of the relationships established and maintained between the clinics and government officials. Prior to beginning to provide services, the programme entered into a memorandum of understanding to with government regarding the establishment of the legal aid clinics. The process of communicating with the government over the MOU set the stage for open discussions between the clinics and government officials regarding the legal issues the clinics address. The relationships have matured, and the staff frequently responds to requests for interpretations and other advice from the government.

Bangladesh provides a final example of another legal aid model. Bangladesh has a history of land-related disputes and rural violence, but the government has not prioritized access to legal services for the rural populations. In an effort to fill the void, NGOs operating in the rural areas have added legal aid to their list of services.^[186]

One of the most active NGOs in the area of land rights is Nijera Kori. Nijera Kori believes that title to land has an integral role in the alleviation of poverty and has devoted resources to educating the rural populations about their rights and encouraging them to take action to resist injustice and improve their livelihoods. For example, the landless have a right to occupy and cultivate land distributed by the government, known as khas land, but that right is often threatened. Land grabbers intimidated the landless by bringing false charges against them; wealthy business interests simply moved onto the land and forced the peasants off. Nijera Kori provided legal aid for the peasants, which allowed them to obtain access and title to khas land and defend themselves against unfounded suits.

Nijera Kori does not employ a legal staff and relies on arrangements with local lawyers and lawyers affiliated with groups such as the Bangladesh counterpart to Amnesty International. The impact of the cases Nijera Kori undertakes is evident: when lawyers obtain verdicts in favor of the landless, the poor become aware of weaknesses in the local power structure and are empowered as a group. Through legal aid, the community has become familiar with and competent to manage rural arbitration and engage in self-help strategies.

As these few examples demonstrate, legal aid is an inherently flexible concept that can be molded to capitalize on the strengths of a particular population and meet that population's particular needs. A legal aid programme can educate the diverse groups that populate the rural areas and provide essential links between the poor, local leaders, local officials, the judicial system, and policy makers. A legal aid programme can advocate for the rights of the poor in formal and informal dispute resolution proceedings. A legal aid programme can help build the capacity of local institutions that deal with land issues. And ultimately, a legal aid programme can obtain information about the legal needs and experiences of a community such that it can assist the community, and other similar communities, in preventing disputes.

Opportunities for donors and NGOs

Research

Interventions in this area would benefit from the identification of the entities (e.g., state government, universities, NGOs) in India who are currently providing legal aid to the rural poor, the scope of their services (both geographical and topical) and personnel.

In addition to this type of broad inquiry, research can also be done at district levels in various states to determine what types of land issues a community has, what challenges the officials who are charged with addressing those issues face, and explore the feasibility of possible interventions. This information can inform further discussions about the selection of places for legal aid intervention and the design of appropriate legal aid systems.

Policy and consensus-building advocacy

Once those entities involved in legal aid services to the rural poor are identified, state-level workshops could be convened with appropriate NGOs, government officials responsible for the implementation of the Legal Services Authorities Act, and representatives from judiciary and legal community to examine the particular need for education and dispute resolution in the area of land rights. Workshops can also be held at district and block levels to train local officials, NGOs, and community leaders on land issues, assist in the design of community education programmes, and discuss dispute resolution programmes.

Legal aid services

Possibilities for interventions through legal aid are as varied as the legal aid services themselves. Legal aid can be offered to educate all levels of stakeholders regarding land rights and specific issues of interest to a state or community. Legal aid dispute resolution resources can be productively directed to areas where, as in Andhra Pradesh, large amounts of government land were granted but the beneficiaries have never fully realized the rights to the land for a variety of reasons. In these circumstances, many of the cases have been pending for years. With the passage of time, controversies have aged, tempers cooled, interests changed, and there is less chance of a vigorous challenge to the rights of the poor. Very modest amounts of legal expertise and time can resolve most cases.