Bina Agarwal is professor of Development Economics and Environment at the University of Manchester, UK, and author of the award-winning 1994 book, A Field of One’s Own: Gender and Land Rights in South Asia. In 2005, she led a civil society campaign to amend the Hindu succession law for gender equality. She has done pioneering work in women’s rights. A great deal of the credit for Indian women’s right to inherit property must go to her. Excerpts from an interview with Rashme Sehgal.
How important is the Supreme Court judgement passed in August in terms of enhancing Hindu women’s rights in property?
The recent Supreme Court three-bench judgement did not enhance or change Hindu women’s property rights. Rather, it clarified the interpretation of the 2005 Hindu Succession Amendment Act (HSAA), in terms of its original intent. This clarification was needed, given prior two-bench Supreme Court judgements which were both conflicting and confusing. The clarification will help in pending and future court cases, and the media coverage will raise popular awareness of the law. However, for most women it will make little difference, since few women take matters to court.
For effectively implementing the law we need to enhance the social legitimacy of women’s claims by changing the conservative attitudes of family members as well as of village officials who record land shares. Social norms and attitudes remain a major obstacle even 15 years after the passing of the HSAA 2005. Providing women with legal aid and support, if they want to go to court, will also help. Some NGOs are doing so already.
In your 1994 book, A Field of One’s Own: Gender and Land Rights in South Asia, you outline the many reasons why independent command over property is critical for women’s economic and social empowerment. Could you elaborate?
Immovable property, and especially land, is still the most important form of property people own in India. In rural areas, it is a wealth-creating and livelihood sustaining asset. For farmers, it is a critical productive resource. However, even women belonging to landowning households remain economically and socially vulnerable if they don’t independently own land or a house. Owning even a small plot can greatly reduce women’s risk of poverty, especially in case of widowhood or divorce. Child survival, health and education are also found to be significantly better when the mother owns land, than if the father alone owns some. Also, my research after I wrote A Field of One’s Own showed that owning immovable property greatly reduced women’s risk of domestic violence.
There are also potential productivity benefits from women owning land. In rural India, some 30% of farm workers are women, and over 70% of women still depend on agriculture for a livelihood. About 14% are also primary farm managers although this is an underestimate, since many women don’t get counted if they de facto manage farms when the men are in non-farm jobs. For women managing farms, a land title would enhance their access to credit, extension services, inputs, subsidies, and markets. This, in turn, would greatly improve crop yields and the country’s agricultural growth.
In addition, owning land would empower women in multiple ways. In my book, I define empowerment as “a process that enhances the ability of disadvantaged (‘powerless’) individuals or groups to challenge and change in their favour existing power relationships that place them in subordinate economic, social and political positions”. Land ownership would empower women economically as well as strengthen their ability to challenge social and political gender inequities. In the late-1970s when landless women in two villages of Bodh Gaya in Bihar received titles in their own names for the first time, they said: “We had tongues but could not speak, we had feet but could not walk. Now that we have the land, we have the strength to speak and walk.” This is empowerment!
In my writings, I also distinguish between nominal ownership of property and the ability to control the property and make decisions regarding its use. I use the word “command” to imply both ownership and control.
In 2007 you wrote “Toward Freedom from Domestic Violence” in the Journal of Human Development, in which you argue that owning immovable property protects women from marital violence. Could you say more on your results?
This study, undertaken with a colleague, Pradeep Panda, is based on primary data on 502 rural and urban households in the Thiruvananthapuram district of Kerala. Unlike many prior studies which focused only on women’s employment as a measure of women’s economic status, we examined the impact of women owning immovable property (a house or land) on spousal violence. The results were dramatic. Among ever-married women in the 15-49 age group, the incidence of physical violence was 49% if they owned neither land or a house, but only 7% if they owned both, and 18% and 10% respectively if they owned either land or a house.
The effect of property ownership was statistically significant even after we controlled for many other factors, including women’s and her husband’s employment status, education levels, social support, alcohol abuse, and so on.
Notably, too, except for the small proportion of women with formal sector jobs, those who were better employed than their husbands faced a higher incidence of violence than the unemployed. But if a woman had property, she faced less violence even if her husband was propertyless. In other words, being employed could have a perverse effect, but owning immovable property protected her.
You spearheaded a campaign to amend the Hindu Inheritance law that led to the passing of the Hindu Succession Amendment Act of 2005. What main changes did this amendment bring about?
Hindu inheritance law distinguishes between separate property and coparcenary (or joint) family property. The Hindu Succession Act of 1956 (HSA 1956) gave women significant rights in parental property compared to the pre-1956 situation. For instance, a man’s sons, daughters, mother and widow were all recognised as first order heirs with equal rights in his separate property, if he died intestate (i.e. without leaving a will). But daughters were not recognised as coparceners in joint family property while sons, as coparceners, had rights by birth in this property which could not be willed away by the father.
Also the HSA 1956 excluded agricultural land from its purview, the inheritance of which was thus subjected to customs and the land reform laws of each state. In many states, these tenurial laws specified a highly gender discriminatory order of devolution.
Subsequently, the four states of Tamil Nadu, Andhra Pradesh, Karnataka and Maharashtra partially amended the HSA 1956 to allow unmarried daughters to be coparceners, while Kerala abolished joint family property altogether.
However, the Hindu Succession Amendment Act 2005, made a comprehensive amendment: it deleted the discriminatory clause relating to agricultural for all states and made all daughters (married or unmarried) coparceners in joint family property. This was a big step forward. It gave women rights to inherit agricultural land and coparcenary property on par with their brothers. Also since coparcenary property is a right by birth, the father cannot will it away, unlike his separate property.
In addition women can ask for partition of this property, they can be kartas (or managers) of this property, and they have a legal right to reside in their parental home, like their brothers.
Given the amendments, has the ground situation changed in terms of women owning land in India?
I am afraid it has not. For many decades, due to a lack of gender-disaggregated data on land ownership in India we could not assess the extent to which women actually owned land. Very recently, I was able to find a data set to calculate this for rural households in 9 states. I found that as of 2014, women constituted barely 14% of landowners and owned only 11% of land in landowning households.
Also, while the legal amendments strengthened the rights of daughters, I found that women were more likely to get land as widows, in line with long-standing tradition which has favoured the claims of widows over those of daughters. Moreover, very few women were joint owners with siblings, as we might have expected if they had been registered as coparceners in joint family property.
Many women do not claim this inheritance rights. What factors underlie this?
Women typically give up their claims in parental property in favour of their brothers due to both explicit and implicit social pressures. There is pressure on daughters to forfeit their claims not only from within the family but even from patwaris who register village land claims. In addition, there is implicit pressure on women. Socially a “good sister” is expected to give up her rights. Also, in the absence of a government social security system, many women see brothers as their main source of support after their parents’ deaths, and forfeit their claims to preserve that relationship with brothers, who may or may not provide the expected support.
Social norms and attitudes are thus key obstacles, especially in northern India where women marry strangers in distant villages, and any land given to the daughter is seen as lost to the family. In south India, where marriages within the village and among extended relations are allowed, there is less resistance, but even here there is a large gender gap in ownership.
Few women want to go to court to claim their right, although now that married daughters have a share in coparcenary property, their husbands and sons also have a stake and they may encourage women to file lawsuits.
You say land and revenue officials often are unaware of the specific clauses of amended acts, or are biased in implementing the law for women. How can this be rectified?
We need to launch awareness campaigns and train officials in the specifics of the law as well as make them more gender sensitive. A number of NGOs have been undertaking such training. For instance in Gujarat, the Working Group for Women’s for Land ownership, a network which I helped catalyse, has been effectively training patwaris. I understand, this has helped improve the registration of women’s claims in the state, to some extent.
What changes are required in the Muslim Personal Law for Muslim women to enable them to inherit agricultural land?
Muslims are governed by the Muslim Personal Law (Shariat) Application Act of 1937. Under this Act, the Shariat superseded custom for all property “save questions relating to agricultural land”. Earlier, Muslims (like most Hindus) were governed by local customs, most of which were highly gender exclusionary, while under the Shariat daughters and widows cannot be excluded by male heirs, although they have smaller shares. The 1937 Act, by superseding custom, thus enhanced Muslim women’s rights, but inheritance of agricultural land continued to depend variously on customs and the land tenure laws of each state. Later the four Southern states amended the Act by deleting the phrase “save questions relating to agricultural land”, but in the northern states, such as Delhi, Haryana, Punjab, Himachal Pradesh, and Uttar Pradesh, the land tenure laws and customs, which significantly discriminate against women, continue to prevail. The Shariat Act of 1937 needs to be amended by the central government by dropping the mentioned discriminatory clause, to make it uniform across the country, as has been done for Hindu women.
I wrote about this in a newspaper article in late 2005, and subsequently submitted a petition asking for the deletion of the discriminatory clause which was signed by 420 individuals and 46 organisations (mostly Muslim reformers). I presented this to then Prime Minister Dr. Manmohan Singh. The Muslim Personal Law Board also wrote a letter of support to the Prime Minister. Unfortunately, the government did not take it forward. So a major reform for Muslim women awaits amendment. We also need to codify the laws for tribal communities, most of which are governed by gender unequal customs.