In the 75 years since Independence, there has been some increase in agency for India's women. More women now participate in household decision-making, own and use bank accounts and mobile phones, and step out to vote. However, when it comes to equality and independence in owning property, either jointly or alone, a great gulf still persists.
The case for women's property rights stands as strong today as it did in the middle of the last century. Global literature on the issue shows that owning land makes women more visible, gives them a bolder voice, and boosts their confidence. Legal rights for women don't just enhance their well-being empowering them socially and politically, but also improve the well-being of their family and children. Yet, in a country where nearly 75 per cent of rural women are engaged in agriculture, only 13 per cent have operational rights over the land they work on, with most remaining stuck as labourers for generations. The average size of women's landholding in India is also smaller, at 0.93 hectares; the average for land held by men is more than 20 per cent higher, at 1.18 hectares.
No woman's land
Notwithstanding laws that ensure women's right to land, most property in India is either owned by men or undivided families. One of the primary reasons for this is that the transfer of land in India is determined by inheritance, with the mediation of women's land rights determined through a set of religion-centric personal laws and customary practices, instead of the law.
Reforms to promote greater equality in inheritance laws began right after independence with the passage of the Hindu Succession Act (HSA) of 1956 for Hindu women, and other reforms among Christians and Parsis. The most significant move, however, occurred in 2005 when the Hindu Succession Amendment Act (HSAA 2005) was passed, that bought all Hindu women substantial legal equality in all forms of property, including agricultural land, and gave all daughters (married as well as unmarried) co-parcenary rights by birth in paternal joint family property.
However, while succession laws have brought women on par with them when it comes to family property, when it comes to inheriting agricultural land, discrimination still persists. What complicates matters further is that in many states, women's rights to a share of agricultural property as per the Hindu Succession Act stand in direct conflict with many states' revenue codes that don't provide equal treatment for men and women's right to agricultural land. This discriminatory practice exists in several states like Punjab, Haryana, Himachal Pradesh, and Jammu and Kashmir, where tenurial laws deny women's right to inherit agricultural land.
With agriculture being a state subject, the revenue codes hold primacy over the Hindu Succession Act when it comes to succession - a view that was upheld by the Allahabad High Court in a judgment in 2015. In many states, women are specifically kept out of the line of succession on the excuse that giving them agricultural land will lead to fragmentation of landholdings. As a result, despite the legal rights, social, institutional, and cultural forces continue to deny a majority of women ownership of land, with her access to the property in practice still being determined by factors like which religion and religious school she follows, her marital status, the state she belongs to, etc.
The underlying reason behind this deep bias is the patriarchal system. Fathers think that they will lose control over family land if they give it to married daughters. Daughters are afraid of claiming their rightful share in the property and damaging family relations. Large parts of the country still hold on to the archaic belief that a woman's fair share is limited to her dowry, which is itself outlawed. In many cases, women themselves lack legal awareness about their inheritance rights. When women do seek their rightful share in property, they run into several administrative and bureaucratic hurdles, with piece-meal implementation of laws that are otherwise progressive reinforcing this discrimination.
Notwithstanding the Constitutional guarantee of equality and fairness guaranteed to women, experts say that Indian courts have largely refused to test the personal laws on the touchstone of Constitutional provisions, leaving it instead to the wisdom of legislatures to choose the time to frame a uniform civil code as per the mandate of a Directive Principle in Article 44 of the Constitution.
Illustration by Farzana Cooper.
What does strengthening women's land rights mean in the Indian context? Women's access to land in the country will improve if their claims are considered legitimate, if they are not affected by changes in their marital status, if they are enforceable in the courts, and if their ability to exercise them does not require an additional layer of approval that applies only to women.
A major impediment to even understanding how this can be done is the lack of adequate data on how much immovable property Indian women actually own. The country presently lacks gender-disaggregated data on land ownership, with neither the agricultural census nor the NSSO surveys on ownership holdings disaggregating ownership by gender. The few studies that have sought to measure just how much land women own in India have not had positive news to report. A one-of-a-kind study, conducted in nine Indian states by women's land rights scholar Bina Agarwal that sought to measure both inter-gender gaps in land ownership and intra-gender differences between women found that despite significant advancement in inheritance laws, just 8.4 per cent of all females owned land, averaged across states.
The research also suggests that Indian women are significantly more likely to inherit land as widows than as daughters, highlighting the divergence between the legal strengthening of daughters' rights and the social legitimacy that widows' claims continue to enjoy over daughters' claims. Very few women were found to be co-owners in joint family property, with over half the owners of both genders were aged 50 or more, as per the data suggesting that even when women receive land, they get it too late in life to notably improve their well-being or bargaining power in families.
There are of course state-wise differences, with female landowners constituting 32 per cent of all landowners in Telangana, and just 6 per cent for Odisha, but largely despite significant advances in inheritance law towards gender equality, and barring the case of a few southern states, all the indicators point to persistent and substantial inequalities.
The road ahead
Besides more accurate data collection, we also need to come up with more accurate definitions to use across relevant national datasets for improving women's land rights reporting. Presently, national datasets that provide some information on women's land rights employ different criteria in their calculations with some including only agricultural land, others including homestead land, while still others including land leased for cultivation to measure land ownership. With women's identity as farmers being subsumed in the identity of the household, data, and details related to their land ownership remains unavailable. For a well-informed policy focussed on gender parity in land ownership, it is necessary that some criteria be standardised and have a gender-just focus.
Additionally, it has been observed that simple interventions can lead to the inclusion of more women in land titles - such as ensuring land record updation schemes have a built-in gender component built into them, so that both the husbands' and wives' names can be included in land titles. Courts too need to make efforts to remove discriminatory laws - wherever they exist under state revenue codes - to uphold women's rights. The clash between legislation under concurrent list (succession rights) and and state revenue codes (agricultural land) is a legally complex one that deserves reviewing by the highest court of the land, as well as the Parliament.
There is also a need to build women's knowledge of property rights, and for women to raise their claims more vocally. Also, there is a need to explore alternative institutions of land ownership: individual ownership with joint investment, individual ownership with joint cultivation, group ownership, and group cultivation schemes, and group leasing and cultivation management programmes. Group farming by women is already practiced in several states, and through these arrangements, women’s control over land can be increased.
However, if women's empowerment and equality in general, and their ownership of land and assets in particular, is to be achieved, legal reforms alone are not sufficient. It will be equally necessary to challenge cultural norms that keep women back and to make institutions an equal partner in the same. In a country where women are still regarded as property themselves, the path ahead promises to be long and bumpy.