An Advocacy Guide to Understanding Women's Access to Land Rights in South Asia

100 Pages·2010·0.59 MB·English

An Advocacy Guide to Understanding Women’s
Access to Land Rights in South Asia

Dhaatri Resource Centre for Women and Children-Samata

March 2010
An Advocacy Guide to Understanding Women’s Access to Land
Rights in South Asia

Submitted by Dhaatri Resource Centre for Women and Children-
Samata

To
International Land Coalition and IFAD, Rome
CONTENTS

1. Introduction
2. Women’s Land Rights in South Asia
2.1 — Sri Lanka
2.2 — Nepal
2.3 — India
2.4 — Pakistan
2.5 — Bangladesh
3. Annexure
3.1 — References
3.2 — Sample of detailed country reports
3.3.1 — Sri Lanka
3.3.2 — Nepal
1. INTRODUCTION
The subject of women’s land rights is of serious urgency in all the countries as conscious efforts
at gaining land rights for women have been limited. The wide divide in social and economic
hierarchies, which reflect also on the control over land, resources and properties being restricted
to a small minority section of the population is significant factor for resistance to ensuring land
rights for women, both socially and politically. While caste hierarchies and historical
patriarchies of governance take precedence in almost all the countries, with some lesser degree in
Sri Lanka due to influence of Buddhism, religious fundamentalism in Pakistan and Bangladesh
become more repressive towards women and gender equality. Large populations, scarcity of land
and increasing disasters and climate change factors may create future conflicts over land
distribution and sharing rights with women. Political conditions have varied vastly across the
five countries with Pakistan and Nepal having faced severe political instability and political
violence. Therefore, while legal provisions in Nepal especially with the enactment of the Gender
Equality Act, seem progressive, the lack of political stability is a reason for its poor
implementation. Women’s literacy in all the countries, except Sri Lanka is abysmally poor,
particularly with dalit and tribal groups, making legal information inaccessible to women, and
ability to assert for their rights over-powered by poverty, insecurity and social pressures. On the
other hand, in Sri Lanka, high literacy of women has not translated into either land rights or
employment opportunities for them.

India seems to have made the largest leaps in globalisation and foreign direct investments and
impacts of these on land rights of women are visible. It is still not so discernible in other four
countries, except for Sri Lanka. However, migration is a common emerging serious problem in
all the countries, with women left behind to cope with the land without having legal rights to it.
This could also be a new opportunity to demand for dual ownership rights. Both government and
civil society, in the name of enhancing food security, are using women’s collective strength in
micro credit and other development programmes, without addressing the core concerns of legal
resource rights. Pressure has to be built on this front. Need for constitutional amendments in all
the countries is urgently required. Particularly in India, the socially responsible role of the State
has shrunk and this is reflected in freezing of land reforms, taking land away through land banks,
and amending land policies to the advantage of private markets and global industries, rather than
for farmers and public. Hence, land acquisition and rehabilitation processes are tampering with
the Constitution, and have delegitimised the State as well as people’s movements for land rights.

Some governments are willing to provide for rights to women and poor communities in State
induced displacement or impacts, like in India, but others like in Bangladesh are willing to
address non-state induced conflicts and not those displaced by government projects. Climate
change in all the countries, and particularly in Bangladesh and Nepal due to floods and glacial
melting, have started showing impacts on women’s land rights or access to food security.
Women need to be helped in devising coping mechanisms to confront these new challenges. In
countries like Sri Lanka, recent interventions in resettlement and rehabilitation due to conflict
and natural disasters have destroyed existing land ownership and inheritance rights of women.
There has to be more public awareness even among NGO’s in understanding these legal rights
while implementing rehabilitation programmes.
Challenges faced in completing the study
Of all the countries studied, comparatively, there is more literature written and available on the
subject in India, while Pakistan has the least information and we found it difficult to get a deeper
understanding of the current status. However, even in India, not much has been written about the
post 1990s impacts of economic changes on women’s land rights, as there is an emerging trend
in legal amendments and physical land acquisition of large areas from farmers. There is a whole
new dimension of land rights concerns in India today, with no rights being created in the
proposed land acquisition and rehabilitation policies for women, while constitutional safeguards
for women’s property rights are very limited. This is illegitimising even their earlier access to
land and forests. For a country like India, with several people’s movements, this shows that little
attention has been given by civil society, to women’s land rights, but has been more restricted to
dalit and tribal rights as a whole as they also do not recognise women as economic entities. A
common trend also seen is that, history of women’s movements, have been largely middle class
and urban based with limited focus on grassroots poor women farmers’ issues included in their
agendas, while grassroots land movements have not consciously adopted gender equality
perspectives into their land rights demands. Many, unfortunately, are also patriarchal in their
views and believe it will lead to fragmentation of land.

Although there are several organisations working at national and regional level in most of these
countries, it was extremely difficult to get information from them, as they provide limited
documentation on their websites and the response to several of our mails and telephone
enquiries, for taking their perspectives, was very disheartening. Therefore, we had to largely rely
on material available online, except for India as we have several contacts and many years of
grassroots experience, to directly talk to people. In India several exciting strategies were adopted
by small grassroots groups but being located in the country, we could include them in the study.
This was not possible for other countries as there is no physical contact. A lot more work in
networking for evidence-based research at regional level is required. Also a lot more work is
required in bringing civil society organisations, women’s movements and grassroots movements
to dialogue on the issue of women’s legal rights to land and property. Otherwise, the
constitutional promises of gender equality will not be translated into action without public
pressure.

2. WOMEN’S LAND RIGHTS IN SOUTH ASIA
2.1 Sri Lanka
Sri Lanka, a country with 20.21 million population consisting of Buddhists (69%), Hindus
(15%), (Muslims (7%) and Christians (8%), was colonised by the Portuguese, the Dutch and the
British and finally became a republic in 1972. In 1978, it shifted from a socialist economy and
opened its economy to foreign investment. The service sector contributes 60%, followed by
industry and agriculture. Income inequalities exist, particularly between urban and rural with
20% of the population being impoverished.

Traditionally women held a place of respect, especially among the indigenous Vedha community
and it is believed that post-colonial influence brought a negative shift in the legal status, roles
and rights of women due to the British imposing their patriarchal administrative policies over
land and property. Today, women constitute 50.6% of the population and have an impressive
literacy rate of 89%. Yet, women’s participation, especially in the political arena is very poor.
Female adult unemployment rate is 9.02% when compared to male rate of 4.31%. Women,
however, make significant contribution to Sri Lanka’s economy as migrant workers, tea
pluckers, domestic, and garment and factory workers. Buddhism contributed a strong positive
influence as it emphasised the respect for women and promoted their education.

Women’s movements in the nineteenth and twentieth century witnessed two classes of women
raising their voices—plantation workers for economic and political rights, and urban middle
class women campaigning for social reforms. Early campaigns centred around demand for equal
pay for equal work in the plantations, elimination of night work for women in the Free Trade
Zones, campaigns for maternity benefits, criminalising domestic violence, women reproductive
health rights, etc. The 1980s also saw the coalition of women’s groups coming together against
the war.

Women’s access to land, inheritance and ownership in Sri Lanka today, are closely linked to the
status of women in ancient times, customary laws and traditions of communities they belong to,
colonial interpretations of customary laws, new legislations under colonial rule, social
acceptance of concepts like ‘head of household’ and post colonial legal and social mechanisms.
Land ownership patterns and laws underwent changes historically from the days of monarchic
rule to colonialism, when the British made considerable changes to land ownership policies,
taxes and trade. The 1840 Crown Lands (Encroachment) Ordinance was a landmark legal shift
where most of the land in the country came under State ownership but it was further sold to
aristocracy and foreign nationals. World markets played a major role in land ownership. The first
Land Commission that became the Land Development Ordinance took a paternalistic view
creating restrictive conditions for peasant holdings. The Land Reforms Act of 1972 imposed land
ceiling on individual lands but not on plantations owned by companies and today 80% of land is
owned by the State.

Women’s land ownership can be traced to the Vedhas and women in ancient dynasties were
allowed private ownership of property which was also encouraged by Buddhism. Sinhalese
women could claim back wealth given by parents, in case of divorce, along with half of the
property acquired during marriage. The right to own, inherit and dispose off property without
hindrance from the husband was enjoyed by women. In 1901 statistics, women owners of
property figure prominently with one-third of them being landowners. A survey post-tsunami
showed that 44% of women inherited property and 64% had clear title deeds. The General Law
of Sri Lanka consists of an amalgamation of the Roman Dutch law and English law but the
application of these depends on the customary laws like the Thesawalamia law, the Kandyan
law, Tamil laws, Islamic laws and the various practices of marriage and divorce that determined
the property and land ownership of women. However, colonial rule modified several of these
customary laws which had both advantages and disadvantages for women. Central to the reforms
on marriage and inheritance was the increasing need for land by the British.

Current legal framework and gender discrimination:
• Under the Land Development Ordinance No19 of 1935, preference for permit/grant in
state assisted new settlements is usually given to male applicants. The principle of
primogeniture denies land ownership to women and they are seen as farmers’ wives than as
economic producers of their own right
• The Land Grants Act of 1979 also discriminates against daughters in the order of
succession.
• Between 1901 and 1921, 50% of women landowners lost their paddy fields due to
changes made by the colonial governemnt in Thesawalamai laws. In Travancore, the changes
brought into transaction of properties by women, where husband has to countersign, led to the
current situation where women cannot transfer their immovable property without the permission
of husband.
• The Kandyan law of intestate succession discriminates against daughters.
• The Kaikuli used in Muslim Marriage and Divorce Act is seen as reducing the marriage
to a mere financial transaction. Moreover, share of inheritance for Muslim women is inequitable
when compared to men.
• The ‘head of the household’ concept introduced by the British where males started being
considered the heads, gained prominence thereby reducing women’s ownership of land. Today,
30% of households are female headed due to conflict, war, natural disasters and migration.
However, implicit use of this concept has violated gender equality and rights. Especially it
denies them grant of land by state as it recognises only males as head of household.
• Lacunae in government machinery have caused violation of women’s decision making
rights like in the case of Farmers’ Organisations where women are not allowed to participate
and women land owners cannot decide over economic activities. Women headed households are
finding it extremely difficult to cultivate land on their own without the help of hired labour or
male relatives, in the current socio-cultural setting.
• The two main events that negatively impacted women’s land rights in Sri Lanka are the
ethnic armed conflict and the tsunami disaster. On the one hand, the prolonged armed conflict
increased the female-headed households, women having to care for incapacitated male
members, increased exposure to violence, poverty and other socio-economic violations. The
strict laws of the Liberation Tigers of Tamil Elam against dowry also had negative impacts on
property inheritance for women.
• In the tsunami disaster, 91% of the adults who died were women. Those who survived
faced serious problems. The granting of state land to the internally displaced persons (IDPs)
under the State Lands Ordinance which prohibits women from owning land in their own name
or jointly with others led to women losing their earlier land ownership rights. Most of the land
available in the post tsunami context was State land. Favouring men under the ‘head of
household’ concept for administrative convenience is a discrimination against women’s right to
land ownership. Further, the law of primogeniture and the discrimination in the Land
Development Ordinance against a surviving spouse who has not been nominated by the owner
of land as an heir, left women out of allocation of lands under the Land Development
Ordinance.
• Some of the disturbing facts that came out of a Centre for Housing Rights and Evictions
(COHRE) study, post tsunami were—prior to tsunami, 70% of women owned land in their
name, but post tsunami, only 44% of women said they received land from government or
private institutions but of these, 85% said the land was given in the husband’s name even when
prior to tsunami, land was in the wife’s name. Only 3% had land given in their names.
There are some records to indicate that women resisted losing rights over land and property
during the colonial times. Some of the interventions made by non-governmental organization
(NGOs) in the area of women’s land rights are as follows. Oxfam Australia Shelter Programme’s
intervention shows that 65% of women had land/house ownership before the programme and this
increased to 74% ownership in house and 88% ownership in land, post the programme. Oxfam
Australia Tsunami Shelter Programme with regard to changes in women’s ownership show that
prior to the tsunami 20% of the houses and land ownership was in the names of women but post-
tsunami land and house ownership rose to 76%. They still continue to retain these rights to land
and housing. The Women Housing Rights Programme of COHRE has begun to engage with the
government on the issue of joint titles to women through studies and publications and advocacy.
Among the national NGOs, EMACE, a Colombo based NGO has been trying to create awareness
among women regarding their property rights through ‘Neethi Sannivedana Sewaya’ (legal
communications service). While addressing concerns of displaced women both as a result of the
conflict as well as the tsunami, Suriya Centre is lobbying for strategic rights for women in
decision-making bodies, recognition of women as co-heads of households and for recognition of
rights of women to land in resettlement process. Networks like the District level Women's
Coalition for Disaster Management Batticaloa, CENWOR and Women’s Media Collective have
been fighting against legal discriminations and for revising the discriminatory provisions of the
Land Development Ordinance.

The government of Sri Lanka has ratified several key treaties concerning property rights that
include ICESCR, ICERD, ICEDAW, CRC, ICCPR and ICPRMW. The Millennium
Development Goals include gender equality and empowerment of women. The challenges to
achieving these goals include bringing about changes in cultural and behavioural norms, reforms
in laws, and ensuring that parity in education translates to equality in the workplace.

The Sri Lankan government submitted the third and fourth CEDAW report in 2002. In its report
it mentions that owing to the pluralistic and multi-ethnic beliefs of the country it has been
difficult to initiate reform in discriminatory laws. In this regard the government’s view is that a
call for change from within affected communities could help facilitate this reform. The CEDAW
report also says, ‘Male heads of households tend to benefit from resource allocation and asset
distribution among families in the case of land and financial assistance’.

Women’s movements in Sri Lanka demand following rights to be ensured:
1) To the Islamic Law:
a) the Muslim Marriage and Divorce Act should be amended to ensure that kaikuli, whether
cash or property is 1) mandatorily entered in the marriage register form 2) failure to do so
should be made an offence punishable under law 3) the onus of entering the kaikuli in the
register is to be placed on the bridegroom 4) false entries should be severely punished 4)
immovable property like house or land given as kaikuli is to be written in the bride’s
name 5) provision to ensure that transfer of property between husband and wife should
be made under the authority of Quazi or other court.
b) Greater awareness to ensure that under testate wills daughters and women inherit equal
shares.
2) To the Kandyan Law Declaration and Amendment Ordinance:
a) Insert a provision entitling diga-married daughters a share in fathers property after his
death even if she was married while he was alive.
b) Remove the provision whereby a diga-married daughter who has inherited property
before marriage while her father was alive is required to give it back to her brothers
and binna-married sisters when they provide a fair market value.
3) To the Thesawalamai law:
Provisions like Earvai that prevents selling a land to others, should be protected
There should be a rejection of the concept of ‘head of household’.
To the Land Development Ordinance:
a) To reject the concept of primogeniture and to recognise co-ownership of lands in new
settlements
b) Amend rule 1(b) of the Third Schedule to change order of succession to children,
grandchildren, parents, siblings, uncles and aunts, nephews and nieces (as opposed to
current order of sons, daughters, grandsons, granddaughters, father, mother, brothers,
sisters, aunts, uncles, nephews and nieces)
c) Amend rule 2 where if the permit holder dies leaving a son and a daughter and the
daughter is the older child, equal preference of inheritance to be given.
d) Amend Land Grants (Special Provisions) Act on similar lines as the Land Development
Ordinance to ensure equal rights in order of succession for daughters.
4) In the case of restitution and resettlement of tsunami and ethnic IDPs the following
should be ensured
a) Recognise joint ownership in grant of state lands as there is no express prohibition to
this under the law
b) In regions in the east where inheritance was passed on from mother to daughter if the
land belonged to the women who died then the new settlement should be allocated in
the name of the daughters recognising customary practices.
c) To instruct Divisional and District Secretaries to look at previous ownership carefully
at the time of grants to ensure women are not discriminated against.
d) Where land had been encroached upon or there is some conflict of ownership and
both spouses have contributed to purchase of property the new title should be given
under a joint ownership to both spouses.
e) In the case of property that was dowry, the resettlement land should be given in the
name of women. The state has to take steps to initiate legal reform or alter
administrative practices that discriminate against women.

Some positive steps have been taken in this regard. On the issue of joint titles, in tsunami
rehabilitation, the Land Commissioner agreed to consider the matter provided the Attorney
General gave him the authority to do so. The Attorney General was approached through the
Ministry of Land and a positive reply was received in early 2008 in favour of joint titles. A
government circular in this regard was also to be circulated to the local levels.

It is also clear that mere ownership to land does not guarantee greater empowerment or rights to
decision making. The socio-cultural norms existing in the community prevent women’s
independent decision-making or participation in all aspects of production and trade even where
she is the owner of the land. There is a great degree of dependence on men in the entire
agricultural process. The most vulnerable group are the female-headed households. This needs to
be addressed by capacity-building and developing confidence of women

The CENWOR study on property-ownership and domestic violence results indicated that while
property ownership did not affect levels of violence it did impact the way women responded to
violence; women with property tried to deal with it more than those without property or less
property in their names. This is definitely an indicator for empowering women with property
rights and while women did not see a direct link between property ownership and violence they
definitely perceived property ownership to giving them an elevated status in society.

Another area of focus, though not a direct method, is the need to ensure greater participation of
women in decision making bodies from the local to the national level. In this regard the
government has taken steps to address the issue of poor political representation. A Women's
Caucus in the Parliament comprising female Member of Parliaments representing different
political parties was established in 2006 to ensure support for engendering legislation. A positive
development is this regard has been the that the Parliament, based on their inputs, in July 2007
suggested that legal provisions be formulated to increase political participation of women. The
National Plan of Action for Women (2008-12) also aims to address the issue under three broad
categories: initiatives to ensure equal participation in all decision making positions in the public
and private sectors, increase women's representation at all levels of policy and governance; and
remove discriminatory traditional practices, stereotypes and perceptions that prevent women's
representation in positions of power and decision making. The Ministry, National Commission
for Women and some NGOs have launched several programmes and trainings to increase
women's participation in politics. The Ministry has submitted a cabinet memorandum to amend
the Parliament and Local Government Acts to provide legal provisions to ensure that at least
25% cent women are nominated in provincial/local government elections. For achieving gender
balance in governance the following thus need to be done: provide legal provision to ensure
representation or quotas, awareness creation among both men and women on political issues and
importance of women’s role in politics, assisting women by advocacy, lobbying and training for
skill enhancement, assisting women and educating men on sharing household responsibilities.
The Women’s Charter of 1993 which was subsequently amended several times is yet to be
translated into a legally binding instrument. There is no provision for public interest litigations
under the Sri Lankan Constitution; therefore only women whose rights are directly violated can
appeal to the Supreme Court. Often women do not have the resources to do so or are unaware of
their legal rights and procedure for seeking redressal.

Today Sri Lanka has just been through a fresh election. The challenge before the current
government is to ensure that the over 600,000 displaced and affected by the 26 year old ethnic
war are properly compensated and rehabilitated, and in the process ensure that Sri Lanka
continues in its path of growth. In the document ‘Mahinda Chintana 2010-The Vision Ahead’
the newly elected President of Sri Lanka recognises the contribution made by women to the Sri
Lankan economy in the plantation sector, apparel industry and foreign employment. He has
committed to ensure not just an ‘equal status’ but a “higher priority” for women in the country
by introducing special schemes to provide financial assistance to women entrepreneurs, ensure
equal wages for similar work as their male counterparts, facilitate economic and professional
data collection about women, implement measures to increase women’s representation within the