India’s First Metadata case: Bihar’s third land survey, Land Titling Act of NITI Aayog, Maharashtra and Andhra Pradesh requires biometric authentication through Aadhaar —Part 9 | Gopal Krishna

The Aadhaar Act disallows an individual access to the biometric information that forms the core of his or her Unique ID (Aadhaar). The lack of access is problematic for the following reasons: First, verification of whether the biometrics have been recorded correctly or not in the first place is not possible. This becomes critical when that same information forms the basis of identity and is the basis of authentication and subsequent access to welfare benefits and other services. Second, there is a great potential for fraudulently replacing a person’s biometric identity in the database, as the individual has no means to verify the biometric information that has been recorded at the time of enrolment. Even an entity like the enrolment operator (with a software hack) could upload someone else’s biometrics against another person. Denial of access to the individual violates a fundamental principle of data protection: ownership of the data must at all times vest with the individual. Overlooking this fundamental principle is manifestly arbitrary and violative of Article 14.
—Justice Dr. D.Y. Chandrachud at page no. 782 of 1448 page long judgment [1] on Aadhaar Act, September 26, 2028

As the Peruvian economist Hernando de Soto has argued, those who are left out of the formal economy—for example, small-scale entrepreneurs with no bank accounts—suffer from being excluded. Enabling them to have a trustworthy digital identity is one way to bring them into the formal economy....In fact, given the glut of data that will be generated from their smartphones, smart cities, and other physical devices connected to the Internet, it is fair to say that Indians will be data rich before they become economically rich...With the advent of three-party or even four-party data transactions—such as a purchase between a buyer and a seller that takes place through an online marketplace—the issue of ownership is still unclear.
—Nandan Nilekani in an article titled “Data to the People: India’s Inclusive Internet” in Foreign Affairs, September-October 2018 [2]

All disputes regarding boundaries shall be decided as far as possible on the basis of existing survey maps, but if this is not possible, the boundaries shall be fixed on the basis of actual possession.
—Section 4 (1), Uttar Pradesh Land Revenue Act, 1901

Who all will own and exploit the data of Indians and their land once it is stored online? Will data subjects become slaves of data owners? Can they access their own data? The law regarding fundamental right to own one’s own data is missing. Given the fact that one’s data is like one’s property, it is apparent that right over one’s own data is a constitutional right. In the light of Supreme Court’s judgement recognizing fundamental right to privacy, right over one’s personal data is a fundamental right.

Disregarding the lesson from the electoral impact of Andhra Pradesh Land Titling Act in parliamentary state elections, Bihar’s “third survey” for land consolidation and datafication is underway. Both are linked to NITI Aayog’s Model Conclusive Land Titling Act and biometric authentication through Aadhaar Number for conclusive land title. Significantly, any violation of fundamental rights and constitutional rights in the process of special survey for land consolidation will have no legal remedy in the Courts and Tribunals because the laws under which this exercise is being undertaken are under the Ninth Schedule and Article 31 B of the Constitution of India. It has implications for social policies guided by indiscriminate digital and biometric profiling.

Section 54 (2) m) of the NITI Aayog’s Model Conclusive Land Titling Act for the States and Union Territories is a model Act to provide for establishment, administration and management of a system of Title registration of Immovable Properties refers to "use of biometric authentication including AADHAR or other identification". This Model Act draws on the Maharashtra’s land titling Act. Section 2 (y) refers to "Survey" which includes all operations incidental to the determination, measurement and record of a boundary or boundaries or any part of a boundary of an Immovable Property including Strata. It includes re-survey. Section 2 (aa) of the Model Act refers to "Title" which means ownership of an Immovable Property that stands against the right of anyone else to claim that property. NITI Aayog has shared Maharashtra Draft Land Titling Act and Maharashtra Draft Land Titling Regulations besides Model Conclusive Land Titling Act with the States and Union Territories.

Besides the Model Act there is a Model Land Titling Regulation for the States and Union Territories which states that "the words and expressions used but not defined in this Regulation" are defined in the Aadhar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, the Information Technology Act, 2000 and other laws. It is relevant in the context of digitization of land records undertaken under the land survey and land titling laws.

The Andhra Pradesh Land Titling Act (APLTA), 2023 became quite controversial in the campaign to the Lok Sabha elections in the State. It was used by the opposition parties to attack the ruling YSR Congress Party government. The APLTA has its origins in the land reforms initiated by the Central government. In 2020, the NITI Aayog recommended the implementation of a Land Titling Act in all the States and followed this up with a model Bill on Conclusive Land Titling. A conclusive land titling system is one in which the State governments provide a guarantee on land titles and where the claimant settles disputes, if any, with the government and not the titleholder. In 2022, Andhra Pradesh enacted the APLTA. The Act aims to maintain land records, provide a database according to the latest government surveys, and ensure more efficient dispute resolution mechanisms. Andhra Pradesh government had started a land survey in 17,000 revenue villages to implement the Act. The land survey and the adoption of the NITI Aayog’s Model Conclusive Land Titling Act by YSR Congress Party government contributed to its defeat in the parliamentary and state elections.

The first land survey in Bihar happened during 1898-1920. Cadastral Survey was undertaken under Bengal (Bihar) Tenancy Act, 1885. The word ’cadastral’ means a public record of the extent, value and ownership of land for purposes of taxation. This type of survey involves the preparation of village maps showing the boundaries of groups of holdings, large scale plans of survey fields showing the boundaries of each holding, topographical details and all measurements, and land registers giving the number, nature, tenure, area assessment and reputed ownership of each holding. This survey is repeated from time to time when changes occur in occupation and in the boundaries of fields particularly when such changes are too numerous to be dealt with by the ordinary revenue staff. The term ’cadastral’ has been derived from the French word ’cadastre’ which means public register of ownership of parcel of land. In fiscal terms, it means a register of properties according to their value.

The second survey happened during the 1960s. This revisional survey of land started after the abolition of zamindari in 1950 but 12 districts of Bihar were not covered. “Revisional Survey” means survey operations initiated and conducted on the basis of the blueprint map of the cadastral survey in order to update the land records.

The third survey of the land for the consolidation of land is happening Bihar Special Survey and Settlement Act, 2011 and Rules under it and the related provisions of the Bihar Consolidation and Holding and Prevention of Fragmentation Act, 1956. The Bihar Special Survey and Settlement (Amendment) Rules, 2019 defines “Special Survey”. It means the construction of digital maps and construction and maintenance of record of rights to be made on the basis position of the property and ownership relating to the land with the help of modern technology by using aerial Photographs/Satellite Images - taking the latest position of land.” The special survey work has been pending at least since September 2020 after the amendment in the law in 2019.

The Bihar special survey work for the raiyats/land holders has started in compliance with an Order No. 177 dated January 11, 2024 issued by the Directorate of Land Records & Survey, Government of Bihar and the order of Chief Minister dated July 3, 2024. Letter No.:- 252, dated August 24, 2024. A formal announcement in the format of Form-1 was made for village-wise land survey and settlement between August 1-7, 2024. A village-wise Gram Sabha is scheduled between September 16-30, 2024. The survey exercise and publication of the final record of rights is required to be completed by August 24, 2025. A review of the implementation of the special survey law and the related provisions under the Bihar Consolidation and Holding and Prevention of Fragmentation Act shows that the drawn out process of survey and settlement is likely to increase social unrest and increase the burden of civil and criminal cases related to land disputes. The claim that work of special survey and settlement, when completed, would reduce the cases of land disputes is not supported by any study.

It is noteworthy that a total of 815 people were killed over land dispute in Bihar in 2021. Bihar recorded 2,799 murder cases in 2021 while Uttar Pradesh topped the list with 3,825 cases as per National Crime Records Bureau (NCRB). If over 60 per cent of incidents of crime in the state occur mainly because of land-related disputes, the spate of reported crimes amid the current special survey indicates that these incidents are likely to increase in near future if the exercise is not stopped in supreme public interest. ?

One Kamlesh Rai was shot dead while his brother Manoranjan Rai was seriously injured allegedly by their cousin Priyanshu Rai in Piro in Bhojpur district in a land dispute expedited by the survey. A woman and a man were killed in two separate incidents in Siwan district in land disputes, while three people were killed in different land-related fights in Jehanabad district in the second week of September 2024. Notably, amidst the special survey, 34 out of 80 houses in the Dalit Tola located near the Khuri river in Nawada was burnt to ashes because of a 29 year old land dispute case in the third week of September 2024.

“I am witnessing around 100 land-related cases being filed daily within my jurisdiction. My conjecture is that the land survey has triggered and expedited them. There is a jump in FIRs in connection with land disputes in the police stations of the State due to the people rushing to capture the land that they believe to be theirs. Those who have clandestinely bought and sold land belonging to others are also party to several FIRs. “The district courts are witnessing a rise in the number of land-related cases being filed. If the trend continues, it will clog the entire judicial system up to the High Court. We have witnessed such a scenario in the ill-conceived prohibition laws brought by the state government,” a district judge of a central Bihar district informed The Telegraph. It reported on September 13, 2024 that the special survey has triggered conflicts, murders in the rural areas.

A careful scrutiny of the provisions of these laws has revealed that there is no provision which is linked to land dispute related crimes. There has been no study undertaken in this regard in the State.

The survey demands vanshavali or genealogical tree of the family to arrive at the land ownership, but conventionally the daughters were denied any share in the ancestral property. The situation has changed now and the women have also started demanding their share in the property of their fathers and forefathers. The revenue and land reforms department has entrusted the survey work to around 14,000 people who would take care of it in over 45,000 revenue villages in the state. “At present, there are no designated telephone numbers or interactive voice response system (IVRS) to address the survey-related grievances or complaints of the people,” admitted Dipak Kumar Singh, the additional chief secretary, Department of revenue and land reforms in an interview with The Telegraph. It is not surprising that despite the announcement that the special survey work started in September 2020 and was to be completed by December 2023, it made no progress. There was another announcement made September, 2022 that the special survey and settlement of lands will be completed by November 2024. On July 3, 2024, Chief Minister sought completion of the Special Survey by July 2025. The special survey commenced in 45,862 revenue villages to digitize land data with a one-year time frame for completion. He repeated the observations he had made in September 2022 about the exercise being aimed at reduction of crimes related to land disputes. He repeated them again in July 2024.

The framers of the special survey law did not factor in the implications of these laws on non resident Biharis who constitute over 15-20 million. Between 1951 and 1961, about 4 percent of Bihar’s population migrated. In 1971, 2 percent of its population migrated. In 1981, the total number of migrants more than doubled at around 2.5 million. During the inter-censual period between 2001 and 2011, around 9.3 million Bihari people migrated (Census 2011). Had the Census been conducted on time in 2021, it would have shown how these laws are unjust and insensitive to the just needs of non-resident Biharis and their resident families. After its passage from the Bihar legislature, the Bihar Special Survey and Settlement Act, 2011 was published in the Bihar Gazette on December 22, 2011 subsequent to Governor’s assent on December 20, 2011. Its purpose can be ascertained only by a harmonious construction of relevant provisions of the Bihar Tenancy Act, 1885 (as amended till 2017) and Bihar Consolidation & Holding & Prevention of fragmentation Act, 1956 (as amended in 1970, 1975 and 1982).

The purpose of these laws is to undertake survey of the land and regularize the status of raiyat and create a record of rights. The special survey is aimed at conducting surveys in the whole of the state using modern technology, aerial survey technique with ground verification by means of Digital Global Positioning System (DGPS), and Electronic Total Station (ETS). It is also aimed at preparation and maintenance of to-date record of rights for revenue and land resource management, computerisation of land records in uniform way to address gap between computer data and to-date ground realities, conclusive ascertainment of current title, possession and classification of lands - for agricultural credit, subsidy, relief and insurance related activities. It provides for identification & demarcation of public lands, Government lands, lands treated as common property resource and the like-to record it in the Record of Rights. It provides for Publication of record of rights and consolidation operations after special survey and settlement under the Bihar Consolidation & Holding & Prevention of fragmentation Act (as amended in 1975).

The Bihar Consolidation & Holding & Prevention of Fragmentation Act deals with the closure of the consolidation operations. As soon as possible, after fresh maps and records have been prepared and certificates of transfer have been issued to the raiyats under the scheme, the State Government shall issue notification in the Official Gazette stating that the consolidation operations have been closed in the unit. It prohibits transfer of lands. Section 37 deals with "Bar of jurisdiction of Civil Courts. It states: "No Civil Court shall entertain any suit or application to vary or set aside any decision or order given or passed under this Act with respect to any other matter for which a proceeding could or ought to have been taken under this Act. " Section 37A states: "Authorities under the Act to be deemed courts of competent jurisdiction." Section 37 B states that "Authorities under this Act have powers and privileges as are vested in a Civil Court in certain matters". These provisions indicate how the legislature is making the Civil Courts irrelevant. Section 20 Act overrides all other laws. Section 21 makes State a party in “certain cases" but does not define “certain cases”. These laws put a bar on the jurisdiction of civil Courts which indicates the trend of executivisation of judicial functions. The provisions incorporated in the law during internal emergency (1975-1977) in this regard need to be subjected to a test of constitutionality. In order to restore peace in rural and urban areas of the State disturbed due to the special survey, there is a compelling need to stop the exercise and revise the law and rules in consultation with all the land rights holders and farmer organisations to make it more pragmatic. It must take people into confidence regarding the relationship between the special survey and the consolidation of land under the Bihar Consolidation & Holding & Prevention of Fragmentation Act, 1956.

Notably, in November 2019, NITI Aayog’s Model Conclusive Land Titling Act was framed. Its Section 56 states: Compulsory use of biometric identification-The Authority may, by notification from time to time in this regard, appoint a date from which it shall provide compulsory use of one or more than one particular personal identification system such as biometric authentication, Iris diagram or finger-print, or any other such method for establishing the identity of any person, for the purpose of any transaction or transfer of any Immovable Property recorded in the Register of Titles. Its Section 65 (2) (m) provides power of the State Government to make Rules for "use of biometric authentication including AADHAR or other identification." A Bihar Gazette Notification dated May 9, 2023 stated that Aadhaar Number is voluntary but news reports in Bihar say, it is mandatory! The fifth sentence in the last paragraph of the Bihar Gazette notification dated May 9, 2023 clearly says, "Aadhaar authentication" is "on voluntary basis" for the registration of land. It has to be voluntary because of Sections 7 of the Aadhaar Act 2016. The second para of Sections 7 of the Aadhaar Act 2016 implies that Aadhaar is not mandatory for anything. It shows that due to some communication gap or ignorance of relevant legal provisions, there is misreporting of facts regarding Aadhaar being mandatory. But contrary to this notification Aadhaar Number is being demanded during the registration of land. Coincidentally, the Union Budget by the Union Finance Minister unveiled plans for ’Bhu-Aadhaar’ unique IDs for rural land parcels and digitization of urban land records by 2027.

Bhu-Aadhar refers to Unique Land Parcel Identification Number (ULPIN). ULPIN is part of the Digital India Land Records Modernization Programme. It is a 14-digit identification number accorded to a land parcel based on the longitude and latitude coordinates of the land parcel and depends on detailed surveys and geo-referenced cadastral maps. ULPIN is a Single, Authoritative Source of Truth for information on any parcel of land or property to provide Integrated Land Services to the citizens as well as all stakeholders. The ULPIN system is based on an international standard which complies with Electronic Commerce Code Management Association standard and Open Geospatial Consortium standard. There is a formula to generate and assign ECCMA (Electronic Commerce Code Management Association) Standard prescribed 14 digit Unique ID “Property Natural Identifier Unit” using the parcel Geo Referenced coordinate of vertices. This computationally generated Unique ID would be organically dependent on Parcel vertices expressed in Lat/Long coordinates “property Natural Identifier Lot” and Unique ID would spatially be pointing to the surface of the parcel.

Notably, Section 14 of the Bihar Special Survey and Settlement Act provides for maintenance of records in digital form. The digitisation of land records in the state has been done clumsily by private agencies. They have put land of one person in the name of another in haste. This s giving birth to more land related disputes. The exercise of special survey for consolidation of land and biometric authentication through Aadhaar Number as proof of conclusive land title is happening unmindful of the fact that the Aadhaar Number case is pending before a 7-judge Constitution Bench of the Supreme Court. It is apparent that it is related to the the Asset Monetization programme and the National Monetisation Pipeline (NMP), Government of India’s initiative to establish a roadmap for "monetisation ready" assets. Pursuant to the announcement made in the Union Budget 2021-22, the NMP is listing potential core assets of Union Government Ministries/PSUs for monetization during the period 2021-22 to 2024-25. For instance, there are 258,000 acres of land with port trusts and railways has 113,000 acres. The State government too has surplus land. The special survey and settlement exercise aims to ascertain surplus land in the State for possible announcement of its distribution for electoral gains. The plan has prepared by NITI Aayog in collaboration with the concerned infrastructure ministries in pursuance of the recommendations of the Finance Ministry’s Vijay Kelkar Committee.

Drawing on Hernando de Soto’s book, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere, Nandan Nilekani has disclosed the purpose of the UID/Aadhaar number in his book, Imagining India, wherein he says that it can help create a national, common land market. And this common land market will lead to poverty alleviation. De Soto has contended that “the knowledge organised by property and transaction records plays the same role in credit that DNA plays in biology: it stores the long-term, measurable information that governs how the different cells of the body come together”. These initiatives for creation of common land market seems to pave the way for social policies guided by digital-biometric determinism and discredited Eugenic thinking for so-called scientific breeding of fit human beings.

(Author: Dr Gopal Krishna is a lawyer and a researcher of philosophy and law. His current work is focused on philosophy of digital totalitarianism and monetisation of nature. He has appeared before Supreme Court’s Committees, Parliamentary Committees of Europe, Germany and India and UN agencies on the subject of national and international legislation. He is the co-founder of East India Research Council (EIRC). He is convener of Citizens Forum for Civil Liberties (CFCL) which has been campaigning for freedom from UID/Aadhaar/NPR and DNA profiling through criminal identification procedure since 2010. He had appeared before the Parliamentary Standing Committee on Finance that questioned and trashed the biometric identification of Indians through UID/Aadhaar Number. He is an ex-Fellow, Berlin based International Research Group on Authoritarianism and Counter Strategies (IRGAC). He is also the editor of www.toxicswatch.org)