Legal Architecture of Land Governance in India: Access to Information Challenges
This document explores the legal framework of land governance in India, focusing on access to information challenges. It discusses the objectives and projects of the CPR Land Rights Initiative, emphasizing the legal obligations under the RTI Act, 2005. The initiative highlights the importance of maintaining records, cataloging information, and promoting transparency in public authorities to ensure effective land rights management.
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The Legal Architecture of Land Governance in India: Access to Information Challenges Dr. Namita Wahi Fellow, Centre for Policy Research Director, CPR Land Rights Initiative
A. OVERVIEW OF CPR LAND RIGHTS INITIATIVE 10/5/2024 CPR Land Rights Initiative 2
A.1 Objective and Projects Institutional space to conduct systematic research on land rights issues Current Projects 1. Constitutional Right to Property 2. The Law and practice of LandAcquisition 3. Land Rights in the Scheduled Areas 4. The LandLaws database 10/5/2024 CPR Land Rights Initiative 3
B. LEGAL OBLIGATIONS UNDER THE RTI ACT, 2005 10/5/2024 CPR Land Rights Initiative 4
B.1 Section 4(1)(a) Section 4(1)(a) mandates every publicauthority to maintain all its records duly catalogued and indexed in a manner which facilitates the RTI under the Act and; ensure that all records that can be digitised should be made digitally available. 10/5/2024 CPR Land Rights Initiative 5
B.2 Section 4(1)(b) Section 4(1)(b)mandates every public authority to publish inter alia the particulars of its organisation, functions and duties; powers and duties of its officers and employees; norms set by it for the discharge of its functions; the procedure followed in the decision making process, including channels of supervision and accountability; rules, regulations, instructions, manuals, and records, held by or under its control or used by its employees for discharging its functions; a statement of the categories of documents that are held by or under its control; the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy and implementation thereof. 10/5/2024 CPR Land Rights Initiative 6
B.3a Sections 4(2) and 4(4) Section 4(2)mandates every public authority to make suo motu disclosure of as much information as possible at regular intervals including through the internet . Section 4(4)mandates that all materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Central Public Information Officer or State Public Information Officer. 10/5/2024 CPR Land Rights Initiative 7
B.3b Report of the Task Force for the effective implementation of Section 4 of the RTI Act Every government department must come out with a proactivedisclosure policy, indicating plans for making information publicly available; indicating what information is publicly available and what is not and for what reasons; Government records should be digitised and extensively networked; Digital information must be available in a userfriendly manner, be searchable and discoverable, not just scanned images ; Previous versions should be archived and made publicly available; All information available in electronic form should be networked and made available to the government. Conclusion: Strong legal obligation on all publicauthorities for proactive digital disclosure in easily accessible, usable and searchable form of all government and publicly funded data. 10/5/2024 CPR Land Rights Initiative 8
C. RTI CHALLENGES WITH RESPECT TO THE LAND LAWS PROJECT 10/5/2024 CPR Land Rights Initiative 9
C.1 LandLaws project The purpose of a law is to subject human conduct to the governance of rules . The internal morality of law requires that laws must be publicly accessible for them to be genuine laws. Two types of land laws: Laws enacted by democratically representative union and state legislatures; Colonial laws enacted by an undemocratic, non representative state. elected and 10/5/2024 CPR Land Rights Initiative 10
C.2a Land is a state subject Entry 18 Land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization. Entry 45 Land revenue, including the assessment and collection of revenue, the maintenance of land records, survey for revenue purposes and records of rights, and alienation of revenues. 10/5/2024 CPR Land Rights Initiative 11
C.2b Land is a state subject Entry 23 Regulation of mines and mineral development subject to union control under List 1. Entry 46 Taxes on agricultural income. Entry 47 Duties in respect of succession to agricultural land. Entry 48 Estate duty in respect of agricultural land. Entry 49 Taxes on lands and buildings. Entry 50 Taxes on mineral rights subject to limitations imposed by Parliament by law relating to mineral development. 10/5/2024 CPR Land Rights Initiative 12
C.3 Concurrent Union and State Jurisdiction over Land Entry 6 Transfer of property other than agricultural land; registration of deeds and documents. Acquisition and requisitioning of property. Entry 42 Entry 17A Forests. Entry 27 Custody, management and disposal of evacuee property. Entry 43 Recovery in a state of claims in respect of taxes and other public demands, including arrears of land-revenue and sums recoverable as such arrears, arising outside that state. Archaeological sites and remains other than those declared by or under law made by Parliament to be of national importance. Trust and Trustees. Entry 40 Entry 10 Entry 31 Ports except those declared as major ports . 10/5/2024 CPR Land Rights Initiative 13
C.4 Proactive digital disclosure of Land laws is a legal obligation Section 4(2) read with Section 4(4) and the Task Force Report can be said to imply an obligation that all central and state laws should be made publicly available in digital form on the websites of respective departments. Can infer an obligation on part of the Department of Land Resources, MoRD to create a central repository of all land laws in India. No such repository of laws exists at the central or state level. 10/5/2024 CPR Land Rights Initiative 14
C.5 How do state governments perform? State Number of Laws Collected from Government Webiste Total Number of Laws Collected Percentage of Laws Collected from Government Website Compliance with 'proactive digital disclosure' requiremet under RTI Act Yes Yes No No No No No No No No No No No No No No No Telangana Meghalaya Jharkhand Jammu and Kashmir Andhra Pradesh Gujarat Manipur Rajasthan Bihar Punjab Uttar Pradesh Assam Goa Himachal Pradesh Mizoram Nagaland Uttaranchal TOTAL 2 2 41 19 78 153 181 15 153 85 191 141 71 80 64 18 30 39 1361 100.0 95.1 47.4 19.2 12.4 11.0 6.7 5.2 4.7 2.6 0.7 0.0 0.0 0.0 0.0 0.0 0.0 9.0 39 9 15 19 20 1 8 4 5 1 0 0 0 0 0 0 123 10/5/2024 CPR Land Rights Initiative 15
C.6 How do central government departments perform? Name of Ministry/ Department Whether the related Laws made available on website? Ministry of Rural Development (Department of Land Resources) Ministry of Defence Ministry of Road Transport & Highways Ministry of Tribal Affairs Ministry of Shipping Ministry of Railways Yes* Yes* Yes* No No No Note: * indicates minimal disclosure of information 10/5/2024 CPR Land Rights Initiative 16
C.7 Whether Ministries and Departments have functional RTI cells? Name of Ministry / Department Whether functional RTI cell exists? Ministry of Rural Development (Department of Land Resources) Yes Ministry of Tribal Affairs Ministry of Home Affairs Yes Yes Yes State Law Departments 10/5/2024 CPR Land Rights Initiative 17
C.8 Response of RTIs filed to obtain Gazette copies of laws Name of State Whether Department of Law exists? Number of RTIs filed Nature of response Kerala Yes 12 Received requested information. Meghalaya Andhra Pradesh Punjab Gujarat Tamil Nadu Jharkhand Karnataka Uttar Pradesh Bihar Assam Jammu and Kashmir Goa Himachal Pradesh Nagaland Madhya Pradesh Uttarakhand Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No No No 1 16 8 9 5 2 19 10 8 4 8 9 6 - - - Affirmative response, requesting for requisite fee. RTI request forwarded to relevant department. RTI request forwarded to relevant department. RTI request forwarded to relevant department. No response received yet. No response received yet. No response received yet. No response received yet. No response received yet. No response received yet. No response received yet. No response received yet. No response received yet. - - - 10/5/2024 CPR Land Rights Initiative 18
D. RTI CHALLENGES WITH RESPECT TO THE SCHEDULED AREAS PROJECT 10/5/2024 CPR Land Rights Initiative 19
D.1 Administration of Fifth Schedule Areas Article 244(1) of the Constitution read with the Fifth Schedule provides for the administration of designated tribal majority areas in tribal minority states Ten states in peninsular India Andhra Pradesh, Telangana, Gujarat, Jharkhand, Chhattisgarh, Himachal Pradesh, Madhya Pradesh, Maharashtra, Orissa, Rajasthan. Governor of the State has plenary powers of administration In consultation with Tribes Advisory Councils, Governor can modify application of state laws or implement new laws Governor must make a report annually to the President, or as required by President 10/5/2024 CPR Land Rights Initiative 20
D.2 Response to RTIs filed for obtaining Governor s Reports State Whether Governor's Report available publicly? Number of Governor's Report obtained via RTI* Number of Governor's Report received by MoTA as per its website (2009-2016)** Percentage of Governor's Report obtained via RTI Madhya Pradesh Maharashtra Chhattisgarh Himachal Pradesh Jharkhand Gujarat Andhra Pradesh Odisha Rajasthan Telangana TOTAL No No No No No No No No No No 2 2 2 2 1 1 0 0 0 0 10 5 6 7 7 4 5 2 4 6 0 46 40.0 33.3 28.6 28.6 25.0 20.0 0.0 0.0 0.0 0.0 21.7 Note: *It took more than five months (Aug-Dec, 2016) to obtain hardcopies of the reports mentioned from MoTA; **Information is not available before 2009 10/5/2024 CPR Land Rights Initiative 21
E. CONCLUSIONS 10/5/2024 CPR Land Rights Initiative 22
E.1 Conclusion 1 Land Laws project Except for the states of Meghalaya and Telangana, all remaining states can be said to be in violation of the proactive digital disclosure requirement Particularly Himachal Pradesh, Uttaranchal, Nagaland, Mizoram, Goa, with no disclosure egregious violators are Assam, Uttar Pradesh, Punjab, Bihar, Rajasthan, Manipur, Gujarat, Andhra Jammu and Kashmir have minimal disclosure Pradesh, and 10/5/2024 CPR Land Rights Initiative 23
E.1 Conclusion 2 Land Laws Project (contd.) All Central Ministries can be said to be in violation of the proactive digital disclosure requirement Ministries of Shipping, Railways, and Tribal Affairs have zero disclosure of applicable laws Ministries of Rural Development, Defence, and Road Transport and Highways have minimal disclosure of applicable laws 10/5/2024 CPR Land Rights Initiative 24
E.1 Conclusion 3 Ministry of Tribal Affairs is under a legal obligation under section 4(2) read with section 4(4) to publish and disseminate the Governor s Reports which pertain to administration of 10.5% of India s geographical area. MoTA is in violation of both requirements to publish and proactive digital disclosure MoTA also appears to be in violation of section 4(1)(a) requirement to maintain catalogued and indexed records. 10/5/2024 CPR Land Rights Initiative 25
THANK YOU! namita.wahi@cprindia.org www.landrightsinitiative.cprindia.org www.facebook.com/LandRightsInitiativeIndia www.twitter.com/LRI_India 10/5/2024 CPR Land Rights Initiative 26
