A Visit to the High Court of Delhi

Alexa FranczakBy Alexa Franczak

Visiting the High Court of Delhi is not an easy process. Unlike Canadian courts where in most cases one can simply walk into any courtroom, attending High Court required a reason for attending, but more importantly, a visitor pass. Luckily, a friend has a few lawyers in her family and I was able to get a pass to watch some of the proceedings.

Before my visit, I was heavily encouraged to dress indistinctly in a white dress shirt and black pants to blend in with the barristers in their uniform court dress with white bands and a black coat. It was apparent that how one dressed signified whether they belonged in the courthouse or not.

Entrance

It was hard not to compare the experience between attending a Canadian courthouse versus attending one in India, and this contrast remained apparent throughout my visit. The difficulty of actually entering the courthouse was one of such differences. Unlike Canadian courts where the open court principle allows the public access to most court proceedings, the security measures in place at the High Court of Delhi ensured that no one was wandering into the courthouse without an authorized purpose.

Spot all the barristers

Because of the 2011 Delhi bombing, which killed 17 people and occurred right outside an entrance gate of the high court, security was very stringent. Getting a visitor pass required identification with your address, photocopies of your identification, your picture taken, and a lawyer accounting for the purpose of your visit to High Court. The visitor pass must then be approved and printed by an official.

As is the case with most matters concerning Indian bureaucracy, this was a time-consuming process and a hassle. Due to this requirement for all visitors regardless of their reason for attending court, there was long wait time for all visitors to enter the courthouse. I could easily see how this must be a frustrating process for visitors, especially those who must attend court proceedings that last several days. While the problem of access to justice in India obviously include issues of corruption, legal fees, time costs, and accessibility, surely the most basic things – such as entering the courthouse – contribute to that.

The queue to get a visitor pass

Unsurprisingly, the monotony of court proceedings is exactly same in India.

A long day of waiting

The Exclusion of Women’s Interests in India’s Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013

Alexa FranczakBy Alexa Franczak

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act (LARR), 2013 came into force on January 2014, replacing the Land Acquisition Act, 1894. Meant as a reforming piece of national legislation to replace other laws on land acquisition within India, the Act standardized compensation in cases of land acquisition and created the legal obligation of rehabilitation and resettlement. The preliminary provision of the Act states that “the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post-acquisition social and economic status and for matters connected therewith or incidental thereto.” However, the actual provisions of the LARR 2013, and the subsequent amendment ordinances and bills modifying the Act, indicate that this is not likely to be the outcome for most women displaced by land acquisition. Naturally, ‘women’ are not a homogenous group and not all of these points reflect the actual realities of all Indian women equally. Nevertheless, the lack of recognition of certain women’s realities creates the potential to further marginalize women in cases of land acquisition, and risks to disproportionately exclude women from the benefits and rights that the LARR is meant to confer.

Control and legal ownership over property remains crucial to women’s empowerment. Evidently, land acquisition undermines the accumulation and retention of assets. However, the consequences of landlessness and lack of ownership over immovable property for women seem to be especially dire. Bina Agarwal’s work on women and property in Asia has well documented the link between land ownership for women and security: land ownership guarantees a source of economic support in cases of desertion, widowhood, or divorce. Property ownership is hypothesized to increase a woman’s sense of self-worth and reduce her tolerance to violence, as it increases a woman’s bargaining power.[1] In contrast, lack of ownership increases women’s vulnerability and dependence on others who are propertied, thus linking women’s property ownership to security and independence. The LARR offers compensation based on a market formula without any guarantee of property to be granted in equivalence, which undermines the interests of women in retaining property. The compensation sums are not sufficient to generate security for displaced women in the same manner as property. Asset ownership and control rights are more beneficial to women’s empowerment than other alternatives.[2] The link between women’s wellbeing and ownership of property should not be ignored in cases of land acquisition, as acquisition evidently removes the security that comes with property ownership.

The LARR is blind to the realities of most women, as the compensation awards and the rehabilitation and resettlement allowances offer the most to individual land owners. This implicitly excludes women from receiving any right or benefit in the process of land acquisition due to women’s historical and ongoing exclusion from land ownership, especially in cases of succession. Even with legislative reforms meant to strengthen women’s claim and retention of property rights, the reality is that very few women hold property rights.[3] These legal guarantees of women’s right to property are often not enforced privately or publically, especially in cases of succession. Personal, religious, and cultural customs and practices continue to deny women ownership rights, inhibiting the accumulation of property. It is often the case that women do not assert their rights, or are made to sign away their legal rights to land to avoid family conflict.[4] Accordingly, women are disproportionately excluded from receiving compensation in cases of land acquisition, since the LARR Act emphasizes compensation solely for the legal owner or tenant of the acquired land.

The Act entitles non-land-owning stakeholders allowances in the rehabilitation and resettlement provisions if they qualify, but these entitlements are defined in a way which creates the potential to disproportionately exclude women. The award provisions do not reflect the economic and employment realities for most women in the labour market due to the prevalent underestimation of women’s contributions to household incomes. Women’s contribution to income generation remains undervalued as it is often seen as an extension of domestic work, limiting the recognition of the “economically gainful nature of women’s work”.[5] Women workers tend to predominate in difficult to measure informal sectors, such as unpaid family work, house work, and subsidence work, thus making it difficult to quantify and incorporate women’s work.[6] This holds especially true for women in the agricultural sector, which accounts for the majority of rural women’s work and continues to increase. Despite this, women’s roles are not fully recognized and women are often considered marginal workers on family farms and enterprises.[7] Figures indicate that above 40% of the rural female workforce in India is unpaid for their work, and is primarily engaged in agriculture.[8] Since women’s work is often not a source of income or is undervalued as one, many women will be excluded from the entitlements since they are not recognized by the LARR as earning a livelihood, which is a necessary requirement for qualifying. Additionally, the nature of women’s labour might result in acquisition officials not qualifying women’s work as that which is affected by acquisition. In order to include women interests, the LARR must expand the definition of affected family to reflect the reality of women’s work, especially the fact that women’s work is often unpaid.

For women who do earn a livelihood, the award provisions do not go far enough to ensure the rehabilitation of women impacted by land acquisition. Land acquisition creates joblessness as it impacts employment provided from land and reduces employment generation, as the jobs provided from the acquired land, like agriculture, are not replaced. The LARR offers those whose livelihoods are affected an annuity or payout per family, or a guarantee of employment to only one person in the family unit. These award entitlements overlook the impact on women’s livelihoods as it does not consider multi-person households that are dependent on the economic contributions of various members, especially if only one member of a multi-person household is guaranteed employment post-acquisition. Studies of post-acquisition communities found a gender bias in situations where employment is only offered to one family member, as the employment opportunity will go to the most eligible male in the family unless the family is female headed.[9] Additionally, the LARR rehabilitation and resettlement schemes to not focus enough on the impacts of acquisition for agricultural workers, especially as the land depended on is no longer available. Women still disproportionately rely on rural agriculture for employment, and women with agricultural skills face difficulty in transferring those skills to new industries, limiting their mobility into non-agricultural work post-acquisition.[10] Women will not only be deprived of the livelihood they depended on, but will also not be able to obtain employment post-acquisition. Land acquisition impacts the livelihood of women, yet the LARR does not seem to recognize the effects of acquisition or the burden of unemployment for women.

[1] Pradeep Panda and Bina Agarwal, “Marital Violence, Human Development and Women’s Property Status in India,” World Development 33, no. 5 (2005): 842.

[2] Govind Kelkar, “Gender and Productive Assets: Implications for Women’s Economic Security and Productivity,” Economic and Political Weekly 46, no. 23 (2011): 63-65.

[3] Rahul Lahoti, Sucharita J Y, and Hema Swaminathan, “Not in Her Name: Women’s Property Ownership in India,” Economic and Political Weekly 51, no. 5 (2016): 17-19.

[4] N.C. Saxena, N.C., “Land, Livestock and the Rights of Women in Rural India,” in Women, Land and Power in Asia, eds. Govind Kelkar and Maithreyi Krishnaraj (New Delhi: Routledge, 2013), 241, 246.

[5] Ibid, 226.

[6] Chaya Degaonkar, and Gills, Dong-Sook, “The Economic Reform and feminisation of Labour in Agriculture” in Women and Work in Globalising Asia, eds. Dong Sook Gills and Piper Nicola (London: Routledge, 2002), 74.

[7] Swarna S.Vepa, “Feminisation of Agriculture and Marginalization of Their Economic Stake,” Economic and Political Weekly 40, no.25: (2005): 2563-2564.

[8] Indrani Mazumdar, and N. Neetha, “Gender Dimensions: Employment Trends in India, 1996-94 to 2009-10,” Economic and Political Weekly 46, no. 43 (2011): 120.

[9] Lancy Lobo and Shashikant Kumar, Land Acquisition, Displacement and Resettlement in Gujarat 1947-2004 (New Delhi: Sage, 2009), 222; S. Parasuraman, “Economic Marginalisation of Peasants and Fishermen Due to Urban Expansion: The JNP Project of New Bombay, India,” The Pakistan Development Review 34, no 2 (1995): 133.

[10] Nisha Srivastava and Ravi Srivastava, “Women, Work, and Employment Outcomes in Rural India,” Economic and Political Weekly 45, no 28 (2010): 52-53.

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