In Africa, as in India, land rights, access to and ownership of land are a major concern. It is often the most poor and vulnerable that suffer the worst when these rights are not respected. And if you are an unlettered woman, on your own, you could find yourself and your rights disappearing altogether. Take the case of Vidya Devi who lives in India’s Himachal Pradesh state. More than half a century ago, the state took her land away from her for a road – but to this day she has been paid not a cent for it, even though the state was legally obliged to pay compensation. It is cases like that this that we need to remember when marking International Women's Day.
This is a story that could have come from almost anywhere in Africa. The fact that it concerns a woman in India shows how widespread the problem is: governments in many parts of the world are among those who trample on the rights of vulnerable especially elderly women.
Vidya Devi is 80 years old, a widow with two daughters. Once she was the ‘undisputed’ owner of just over three hectares of land. But in 1967 her land was expropriated for the construction of a major road. When the state took her land from her, the authorities did not follow the due processes for acquiring land. She was given absolutely no compensation. This means she has lived for most of her life with the land gone, no alternative land to work, and without any finance to help her find another way to make an income.
But many decades later India’s highest court has eventually heard her story. Obviously shocked at the tale, two judges of that court have now taken action that could make at least some financial amends.
Devi is an illiterate widow, the judges pointed out, and comes from a rural background. This meant she was ‘wholly unaware of her rights and entitlements in law’. Because she was not aware of her rights, she did not bring any legal application for compensation when the land was taken from her.
Many years later, in 2004, other people in the area whose land had also been taken away by the state for the same road filed a court action in the high court of Himachal Pradesh. In that case, the court ordered the state to acquire the lands of the petitioners in a lawful way. While the state obeyed, it did so only in the case of those who were named in the litigation, ignoring all the other former land owners whose property had been taken, but who did not petition the court.
When Devi heard about what had happened in the high court and that her former neighbours had been compensated, she and her two daughters also launched a case in the Himachal Pradesh high court. The legal argument put up by the state in response to Devi’s case shocked the supreme court judges when the matter reached them: The state claimed that it had been ‘in continuous possession of the property’ for decades, and that the state was now the owner by virtue of the doctrine of ‘adverse possession’. Therefore, she had no claim against the state, its lawyers argued.
The state raised a number of other issues as well, defending its position in relation to owning the land. As the matter had become more complex, and the high court held that Devi and her daughters should file a civil case against the state. The three women then asked for a review of the decision that they had to bring a civil case. They lost and then turned to the Supreme Court for help.
In their recent decision on her plight, the supreme court judges said Devi had been ‘forcibly expropriated of her property’ at a time when the right to property was a fundamental right under the constitution. According to that right people could not be deprived of property ‘without due process of law and upon just and fair compensation’.
Though the right to property was no longer a fundamental right in the same way as at that time, it continued to be a human right in India’s welfare state, as well as a constitutional right.
The constitution said that ‘no person shall be deprived of his property save by authority of law.’ And the state ‘cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation could be inferred from the constitution, and ‘to forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right….’
Given that legal framework, Devi should not have been ‘forcibly dispossessed of her property without any legal sanction’ and without following due process of law, and depriving her payment of justice compensation, as this had been a fundamental right at the time she was forcibly disposed of her land.
The state’s contention that she had ‘orally’ consented to the acquisition of her land was ‘completely baseless’, said the court.
‘We find complete lack of authority and legal sanction in compulsorily divesting (Devi) of her property by the state.’
In a democratic state, governed by the rule of law, the state could not deprive citizens of their property ‘without the sanction of law,’ the judges added.
The right to property had now come to be considered not just a constitutional right, but also a ‘human right’ along with other individual human rights such as the right to shelter, livelihood, health, employment and others. ‘Human rights have gained a multi-faceted dimension.’
The judges said they were surprised that the state tried to justify keeping the land without compensation on the grounds that it (the state) had been ‘in continuous possession’ of the land for so long that it amounted to ‘adverse possession’.
This is a doctrine that allows trespassers to gain legal title over property which they had held for more than 12 years. And the horrified judges said the state could not be allowed to act in this way, ‘invoking the doctrine of adverse possession to grab the property of its own citizens, as has been done in the present case.’
Referring to circumstances in the case that ‘shocked the judicial conscience of the court’, the judge said there was no period of limitation prescribed for the courts ‘to exercise their constitutional jurisdiction to do substantial justice.’
‘In a case where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it.’
The court said Devi’s case was one where the demand for justice was particularly compelling because the state had admitted that the land had been taken without any of the proper legal formalities having been instituted.
In 2008, the state began proceedings to compensate a neighbour of Devi’s for land taken from him. However, the state acted legally only in the cases where the high court had been involved, and not in relation to other land owners whose property had been taken over, for the same purpose and at the same time, but who had not gone to court about it.
Given all these facts, the state was to pay Devi the equivalent of $135 500 as well as her legal costs. All of it had to be paid within eight weeks, with an affidavit of compliance filed by the state before the court within 10 weeks.