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TERRITORIALISATION, RESISTANCE AND DEMOCRATIC SPACES IN
FORESTED LANDSCAPES OF ORISSA, INDIA

By

Kundan Kumar

A DISSERTATION
Submitted to
Michigan State University
in partial fulfillment of the requirements

for the degree of

DOCTOR OF PHILSOPHY

Resource Development

2010

ABSTRACT

TERRITORIALISATION, RESISTANCE AND DEMOCRATIC SPACES IN FOREST
LANDSCAPES OF ORISSA, INDIA

By

Kundan Kumar

I present three papers based on my dissertation research on internal
territorialisation and the politics of democracy and decentralization in forested landscapes
of Orissa, India. The research links the areas of rights, development, social
movements, democracy and decentralization in the context of forested landscapes. In my
first paper “Rights regimes. exclusion and development inforested landscapes
ofOrissa, India”, I use archival research and case studies to examine how formalization
of rights regimes led to non-recognition of the customary land rights systems of local
people and the effects of this non-recognition on land-based programs for development
and poverty alleviation. The second paper “Democratic Assertions.‘ the Making of India ’5
Recognition of Forest Rights A ct" examines how marginalized forest dwellers and their
mobilizations were able to use democratic spaces and movement politics to demand and
obtain a new forest law which recognizes their rights over forests and forest land. The
third paper “India '5 Joint Forest Management and the Recognition of Forest Rights Act,
2006: Top-Down Decentralization vs. Bottom-Up Democracy” discusses the implication
of the new forest law on forest governance by comparing its provisions with the existing

state initiated program for decentralization of forest governance.

Copyright by
KlHVEVUNI<UhAAJt

2010

This dissertation is dedicated to
Late Dr.Ashok Baboo
And
Late Shri Rajendra Sarangi.

Teachers, mentors and friends

iv

ACKNOWLEDGEMENTS

I have been fortunate to closely work and interact with remarkable individuals and
collectives during my research on the issue of forest rights. The research for this
dissertation has drawn heavily from the support of the land team of Vasundhara,
including Sricharan Behera, Soumen Sarangi, Pratap Mohanty, Pradeep Mishra, Tarun
Pradhan and Manohar Chauhan. Pranab Choudhary was a constant help and helped me
think through complex issues. I would also like to thank Vasundhara for hosting me and
providing me research and logistical support. I would specially like to thank Y Giri Rao
of Vasundhara for his enthusiasm and his ideas. Pushpanjali Satapathy was an inspiration
through her commitment to the cause of the forest dwellers.

I would also like to thank the members of the Orissa Chapter of Campaign for
Survival and Dignity, for allowing me to participate in their meetings and deliberations. I
would specifically like to thank Gopi Majhi, Narendra Bhai, Prashant Bhai and Dhirendra
Panda for their patience with a researcher’s questions and comments.

At the national level of the Campaign for Survival and Dignity, I would like to thank
the extraordinary group of people I interacted with: Shankar Gopalakrishnan, Priya, CR
Bijoy, Bijoy Panda, Nikunja and all other members who came together from across the
country. I would in particular like to acknowledge Pradip Prabhu, for his wisdom and
clarity. Thanks Madhu Sarin for being a mentor, friend, guide, firebrand activist and for
your commitment to social justice and environment.

I would also like to thank the then Revenue Secretary of Orissa, Shri Venugopal

Sharma, who allowed me access to the library of the Revenue Department of Orissa, and

V

helped me access government record rooms. A number of functionaries of the
Government of Orissa as well as in the Orissa Archives helped me, and I would like to
record my gratitude to them.

John Kerr, my principal advisor, has been a mentor and a guide, and I deeply
appreciate his ability to allow me freedom yet to keep me disciplined, always with steady
guiding hands. I appreciate the guidance from my committee members Professors Bill
Derman, Jim Bingen and Jeff Reidinger and their patience with my long drawn
dissertation.

The field research in Orissa was funded by the American Institute of Indian Studies’
(AIIS) Junior Fellowship. Various fellowships from CARRS, MSU as well as
Dissertation Completion Fellowship from the Graduate School at Michigan State
University helped during the writing stage.

Thanks Sudhir Bhai for inspiring us. With your strength you kept us afloat during
consecutive loss of loved ones. And finally I thank my loved ones, my partner in
academics and life, Neera and my son Shashwat.

Kundan Kumar,

05/11/2010

vi

TABLE OF CONTENTS

LIST OF TABLES .................................................................................................. x.
LIST OF FIGURES ................................................................................................. xi
LIST OF ABBREVIATIONS .................................................................................. xii
CHAPTER 1. ............................................................................................................ 1
RIGHTS REGIMES, EXCLUSION AND DEVELOPMENT .............................. 1
IN FORESTED LANDSCAPES OF ORISSA, INDIA
Introduction .......................................................................................................... 1
Rights Regimes and development ........................................................................ 3
Forrnalisation of Rights Regimes in forested Landscapes of Orissa .................... 7
Internal Territorialisation before Independence ....................................... 8
Internal Territorialisation after Independence .......................................... 12
Survey and Settlements ................................................................... 13
Forest Notifications ........................................................................ l8
Implications of Internal Territorialisation ............................................................ 19
Kirkicha Microwatershed ........................................................................ 20
Gaurigaon Village ................................................................................... 23
Development Interventions and Rights Regimes ................................................ 28
Conclusions ......................................................................................................... 31
References ........................................................................................................... 36
CHAPTER 2 ............................................................................................................. 41
DEMOCRATIC ASSERTIONS: THE MAKING OF INDIA’S ........................... 41.
RECOGNITION OF FOREST RIGHTS ACT
Introduction ......................................................................................................... 4 1
Inclusion of the Marginalised: Politics from the Grassroots Up ......................... 43
The Setting and the Case ..................................................................................... 47
Locating the Marginalisation of the Forest Dwellers in India .................. 47
State Overreach Creates a Campaign Issue .............................................. 49
Prelude to the Creation of RFRA ............................................................. 52
The RFRA 2006 Enacted ......................................................................... 57
Analysis: The Politics of Marginality, Scales and Networks ............................ 59
Discourses of Legitimacy and Justice ................................................................ 65
Politics of Mass Mobilization ................................................................... 68
Conclusion ......................................................................................................... 70
References ......................................................................................................... 72

vii

CHAPTER III .......................................................................................................... 79
INDIA’S JOINT FOREST MANAGEMENT AND THE RECOGNITION ........ 79
OF FOREST RIGHTS ACT, 2006: TOP-DOWN DECENTRALIZATION

VS. BOTTOM-UP DEMOCRACY

Abstract ........................................................................................................... 79
Introduction .................................................................................................... 79
Decentralisation, Democratisation and Forest Governance ............................. 80
Genealogy of Forest Governance in India: An Exclusionary Legacy ............. 85
Top Down Decentralisation: Joint Forest Management ................................... 88
Delegation of power and authority ......................................................... 89
Accountability ........................................................................................ 90
Impact on forest dependent poor ............................................................ 91
Summing up JFM ................................................................................... 92
Recognition of Forest Rights Act .................................................................... 93
Delegation of power and authority ........................................................ 95
Accountability ....................................................................................... 96
Impacts on forest dependent poor ......................................................... 98
JFM and RFRA: From Subject to Citizens ..................................................... 99
References ....................................................................................................... 103

viii

Table 1.1

Table 1.2

Table 1.3

Table 1.4.

Table 2.1

LIST OF TABLES

Kirkicha watershed legal land tenure .............................................. 22
and actual land use (acres)

Gaurigaon village legal land tenure and .......................................... 25
actual land use (acres)

Examples of where development .................................................... 29
program interventions have led to

dispossession and conflict

Conditions and procedures for assigning title .................................. 30
to farmers cultivating government land in study villages

A sample of CSD demonstrations .................................................... 68

ix

LIST OF FIGURES

Figure 1.1 Territorialisation Processes and the Resultant Land ......................... 8
Categories in Orissa

Figure 1.2 Legal land categories as per cadastral surveys in .............................. 17
four forested districts of Orissa

Figure 2.1 Networked structure of the Campaign for Survival ......................... 63
and Dignity

BOR
BJP
CSD
CPI (M)
FCA
FD

RFRA

GOI
JPC
MOEF
MOTA
MPs
NAC
NF TSR
NGO
NREGA
PESA 1996
PMO
RTI

SC

ST

TSG

KEY TO ABBREVIATIONS

Board of Revenue

Bharatiya Janata Party

Campaign for Survival and Dignity
Communist Party of India (Marxist)
The Forest Conservation Act of 1980

Forest Department

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition

of Forest Rights) Act, 2006

Government of India

Joint Parliamentary Committee

Ministry of Environment and Forest

Ministry of Tribal Affairs

Members of Parliament

National Advisory Council

National Front for Tribal Self-rule

Non Government Organization

National Rural Employment Guarantee Act (NREGA)
Panchayats (Extension to the Scheduled Areas) Act, 1996
Prime Minister’s Office

Right to Information (RTI) Act

Scheduled Castes

Scheduled Tribes

Technical Support Group

xi

CHAPTER I

RIGHTS REGIMES, EXCLUSION AND DEVELOPMENT IN
FORESTED LANDSCAPES OF ORISSA, INDIA

Abstract
Land and forest tenure are critical issues for marginalized forest dwellers’ livelihoods. In
many countries, formalization of rights regimes in forested areas has led to increased
state ownership of land and forests, often ignoring traditional or customary tenure and
land use. Non-recognition of traditional rights and land use often leads to disjuncture
between official formal rights and the land use practices of local people. Development
and poverty alleviation programs that do not take this disjuncture into account risk
unanticipated outcomes. In this paper, I examine the history of the formalization of rights
in forested landscapes in Orissa, India, its implications on local inhabitants’ access to
land and for development interventions.
INTRODUCTION

Forested landscapes in the global South are home to hundreds of millions of people
and overlap significantly with concentrations of poverty and marginalisation (Sunderlin
et al., 2005; McNeely and Scherr, 2003; World Bank, 2003). This has attracted
significant donor and governmental attention and efforts for development, poverty
alleviation and environmental conservation (Schmidt et al., 1999; Dubois, 2002; World
Bank, 2004). A challenge that confronts these interventions relates to limited recognition
of local rights. Forests in most countries are predominantly state-owned. States have
come to own these forests through processes of exclusion and non-recognition of

customary tenure and rights of local people (Sunderlin et al., 2008). In many situations,

1

tenure systems that enjoy local legitimacy have no legal sanction from governments, and
formal legal rights regimes enjoy little legitimacy amongst local populations (Deininger,
2003). The implications of this mismatch have received inadequate attention in the
literature on land-based development programs in forested landscapes.

India, with its long history of land and forest administration, the large number of
poor people living in forested areas, and the many initiatives for poverty alleviation and
development, provides an instructive setting to study the intersections of rights regimes
and development efforts in forested areas. Officially, India’s landscapes have been
legally rationalized with every parcel of land legally owned either by a private entity or
by the state. At the policy level, construction of these legal rights regimes is assumed to
be unproblematic as they have been created through detailed and legitimate processes of
mapping and surveying.

In this paper, I use empirical evidence from the state of Orissa to show that this
assumption is deeply flawed and that in the processes of legal formalisation of rights and
access regimes, there has been large-scale legal dispossession of the inhabitants of
forested landscapes. I examine how application of complex technical processes of survey
and settlement and forest notifications has led to non-recognition of rights of marginal
people, and present two micro-level case studies that illustrate the problems relating to
land rights regimes.

The ambiguity in land rights regimes in forested areas is only partially acknowledged
by policy makers. State interventions in these areas have often led to conflicts and

contestations. Even land-based development programs specifically designed for poverty

alleviation can intersect with unclear rights regimes to negatively affect the very people
who are supposed to gain from these programs. 1 illustrate this through examples.

The paper is based on archival research and field case studies in the forested areas of
the state of Orissa in India. Archival research included study of survey and settlement
records, forest reservation proceedings, correspondence, forest working plans, census
data, program documents and reports. The archival research was supplemented with
discussions and interviews with officials and other knowledgeable people to understand
the processes leading to formalization of rights regimes in forested landscapes in Orissa.
In the case studies, legal rights data were compiled using the official “Record of Rights”
and cadastral maps. Since no data were available about the actual land use and informal
land tenure situation in the case study areas, plot level data collection filled this gap. All
plots under cultivation were mapped and measured, their land use recorded and the
customary ownership including changes in ownership documented through interviews.
These were overlaid onto the official cadastral data for comparison of formal and
customary rights. This analysis was combined with interviews and focus group
discussions to understand the implications of the mismatch between customary and
formal rights in the case study areas.

RIGHTS REGIMES AND DEVELOPMENT

Emergence of property rights regimes in forested areas reflect complex historical and
political processes that have been widely discussed in the literature (Grove, 1995,
Rangarajan, 1996, Sunderlin et al., 2008). Increased penetration and control of forested
areas by states has been accompanied with state-initiated mapping, surveys, rights

settlement, recording of rights, and legal notifications to recognize pre-existing rights or

create new rights. Vandergeest and Peluso (1995) use the term internal territorialisation
for these processes, defining it as “resource control” strategies of the modern state
wherein it divides the territories under its control into economic and political zones,
rearranges people and resources within such units and regulates who can and cannot use
the resources. Internal territorialisation has been an integral part of the extension of
modern states to forested landscapes and opening these areas to processes of resource
extraction and control (Sivaramakrishnan, 1999). Techno-legal systems such as cadastral
mapping and surveys have been used to reorganise pre-existing rights regimes into formal
rights regimes in order to generate revenue, facilitate penetration of capital and increase
state control and regulation of landscapes. In this process, most governments have tended
to overlook customary local systems of rights and access, which are often deeply
embedded in social, cultural and religious beliefs and norms (RRI, 2009). Local,
multilayered, complex systems of rights and access have been replaced by what states see
as legible, simplified and universal systems primarily based on individual and state
property rights (RRI, 2009).

Territorialisation processes are political in that they reconfigure rights and access
relationships, privileging state and private ownership while delegitimizing communal
tenures and customary land use. This reconfiguration of forested areas has often led to
resistance and conflicts, especially when longstanding uses and access are sought to be
curtailed and regulated (Peluso, 1992, Gadgil and Guha, 1993). Efforts to enforce formal
rights regimes come up against resistance by local actors and the limitations in state
capacities (Sivaramakrishnan, 1999). In the absence of effective enforcement of formal

rights, multiple rights regimes and modes of access, formal and customary, may operate

in the same landscape, often in contradiction to each other (Scott, 1998; Sunderlin et al.,
2008).

India’s long history of legal disciplining of forested landscapes and relatively high
population of forest dependent people provide unique insights into the processes of
internal territorialisation and the tensions therein. The instruments of cadastral mapping',
surveys and forest notifications have been used to formalize rights regimes in forested
areas in India since the 19th century, converting erstwhile agroforestry landscapes into
discrete legal categories of legal forests and non-forest lands (Sivaramakrishnan, 2000).
Extension of state regulation over land and forests to these areas was driven both by need
for increased state incomes from land revenue and forest exploitation, as well as strategic
need to bring these areas within the control of central authorities (Sivaramakrishnan,
1999). Vast areas of forested landscapes were enclosed as state forests, while pockets of
cultivation demarcated as villages. A common feature of these processes was the non-
recognition of certain customary land use and the delegitimization of many activities
critical to the livelihoods and subsistence of forest dwelling people (Gadgil and Guha,
1993). Limited state capacity to enforce the formal rights regimes and resistance by local
actors has led to persistence of elements ofcustomary rights regimes alongside formal
rights regimes. These regimes intersect and overlap with formal rights regimes in
complex dynamics. However, for the policy makers and the judicial system, formal
records and maps represent the normalized landscape, and deviations from this normality

are seen as transgressions against the law to be regulated. Customary use not in

 

I Though cadastral surveys and creation of records of rights were in use during the pre-British period,
specially by the Mughals and Marathas, in order to systematise land revenue (see Habib, 1953) these were
limited mainly to plains areas and were not extended to the forested areas. The British borrowed some
elements from the older systems and also introduced much more detailed and extensive survey and
mapping of the land in the 19’h century.

conformity with law becomes illegal. This sets the stage for conflicts and instability in
the livelihoods of forest dwellers, and creates social and tenurial uncertainty. Thus,
understanding the way in which internal territorialisation has led to non-recognition of
pre-existing rights and its implications becomes essential to addressing the problems
linked to livelihoods and tenure security of forest dwellers.

The forested areas of India are also major pockets of poverty and deprivation, and
forest dwellers and scheduled tribes2 remain some of the most marginalised sections of
Indian society (Mehta and Shah, 2003). Since Independence, the Indian state has carried
out both protective and affinnative action for scheduled tribes and other poor sections,
including development programs focussed on improving livelihoods, incomes and assets.
People living in forested areas, especially communities categorised as scheduled tribes,
have received special attention due to their marginalisation and poverty3. The
development and poverty alleviation interventions have included land based programs
such as watershed development, agricultural improvement, forestry plantations and
horticulture, with annual budgets of billions of rupees. The extreme poverty in forested
areas has also attracted the attention of international donors such as the World Bank,
DF ID, IF AD, who provide financial and technical support to the government to
implement these programs". Since the 19903, many of the welfare-oriented development

programs have moved toward more participatory approaches. However, there is little

 

2 The Indian Constitution provides special protection for communities listed as “Scheduled tribes”, who are
primarily concentrated in the forested areas of India.

Areas where scheduled tribes are a near majority have been constituted into special areas, and separate
development plans called the tribal sub-plans are developed for these areas. Most ofthese areas overlap
with forested areas. Both at the Central level and in many states, special ministries for development of
scheduled tribes and other marginalised communities have been created.

4 The trend of external support for directed poverty alleviation and sustainable development programs in
forested areas have accelerated in the 19905, and a large number of such programs including forestry and
watershed development programs, explicitly aimed at poverty alleviation have been implemented.

6

attention to how these development interventions are affected by the unstable rights

regimes in the forested areas.

FORMALISATION OF RIGHTS REGIMES IN FORESTED LANDSCAPES OF
ORISSA

Orissa is located on the eastern coast of India with an area of 155,000 sq. km. and a
population of 32 million. 62 scheduled tribes, residing mainly in the forested part of the
state, form 22 percent of its population. Orissa is also one of India’s poorest states, with
an estimated 47 percent of its population living on less than a dollar a day (Haans and
Dubey, 2003). Poverty and marginalization are concentrated in forested areas and within
certain social groups. In 1999-2000, 73 percent of the scheduled tribes in Orissa were
below the poverty line as compared to 33 percent for general castes (Haans and Dubey,
2003). Nearly half of Orissa consists of hilly, forested terrain and almost 40 percent of its
area has been categorized as legal forests.

Two broad categories of instrumentalities, survey and settlements and forest
notifications, were used by the colonial and post colonial governments to formalise land
rights in forested landscapes. A broad description of the major categories of legal
classification of landscapes that resulted from these two instrumentalities, are provided
below in figure 1. As discussed in the next two sections, this was a complex process

spanning more than hundred years.

Figure 1: Territorialisation processes and the resulting legal land categories in
Orissa
[ Forested J
Landscapes of
I

l
[ Survey ] { Forest Notifications ]
and using
Settlements Forest Laws
__I '

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

.[ Private land ] Land settled with households
—l—_Eov_em—me_m ___________________ 7—-
-[ Revenue Land 1 _ Non-Forest State land
[ Reserved Fore“: l.— Forest Land I State
T Revenue Forests ] [Protected Forests }-— :ZCpAlietIso J Owned

We discuss the contours of these processes, and highlight the major events and
policies that have led to the current rights regime. We examine the processes of internal
territorialisation first in the colonial period, and then after independence.

Internal Territorialisation before Independence

The present day state of Orissa was created from three separate British ruled
provinces and 24 nominally sovereign princely states (G00, 1958). As a result, forested
landscapes in Orissa inherited different land and forest administration systems from these
separate units. The mostly tribal communities living in these landscapes practiced shifting
cultivation on hillsides in combination with paddy cultivation in valleys. They also
gathered forest products and hunted. The clan or lineage based systems of different tribes
tend to be territorial, with communal or kinship linked customary rights regimes over
land (Mahapatra, 1997; Bailey, 1960).

Historically, tribal dominated areas in Orissa were comparatively autonomous

because of the extreme remoteness of the hilly terrain (Padel, 1995). In the pre-British

period most tribal communities did not pay any kind of land tax (G00, 1958). British
attempts to expand their control over these areas during the 19lh century were met with
fierce resistance. To contain tribal unrest, the British created special administrative
arrangements called “agencies” for the forested areas under their direct rule.

Like elsewhere in India, cadastral surveys and forest notifications were used to
legally rationalize the forested areas of Orissa and create formalized rights regimes. The
British rulers took up large scale cadastral mapping and creation of records of rights from
the 19th century as part of revenue survey and settlements of inhabited lands. Land was
mapped and categorized, and rights in land were codified into cadastral maps and records
of rights, forming the legal basis for property rights claims. Those who paid land revenue
(land tax) were proclaimed the holders of heritable, alienable property (Kain and Baigent,
1992).

Survey and settlement procedures first marked the external boundaries of “villages”.
Inside the village, individual agricultural land parcels were measured and mapped on
cadastral maps and records of ownership prepared. The primary aim was to assess the
productive capacity of each piece of land and link it to a proprietor, who then became
liable to pay land taxes. All land where direct individual proprietorship could not be
established was classified as state owned. This process of survey and settlement was first
initiated in the populated plains and slowly extended into the forested hinterlands.

The forested areas of Orissa, with relatively low land revenue potential and threats of

resistance by tribal communities. were not a high priority for revenue survey and

 

5 The administrative category called “village" was created through survey and settlements, and could
contain many physically separate settlements or hamlets. Villages became the basic unit of land and civil
administration.

settlement by the British and the princely states. In many areas, tribal cultivators were not
assessed for land revenue. In other forested areas, instead of land revenue based on
acreage and land category, taxation was based simply on the number of ploughs or hoes
owned or on a visual estimation by the assessor (Ramdhyani, 1949). By the end of
colonial rule, only a few parts of Orissa’s forested zones had undergone detailed cadastral
survey and settlement.

Forest notifications in these areas during colonial rule were relatively more
advanced. Forest laws such as Indian Forest Act, 1927 and the Madras Forest Act, 1882,
allowed the colonial government to notify any land as legal forest. The laws regulated
local people’s access to legal forests and banned their conversion of these lands to
agriculture. They also allowed for a process of rights determination before declaring an
area as forest. The forest laws provided for creation of different categories of legal
forests, classified mainly on the extent of rights and access they provided to the local
populations. The princely states often had their own laws or rules somewhat similar to the
British laws. More forest areas were notified in the princely states of Orissa than in the
British ruled areas, with cursory or non-existent rights settlement processes. Large tracts
of land were declared as forest reserves, without taking into account existing settlements
and cultivation inside the area (Ramdhyani, 1949). For example, in 1943, the King of the
princely state of Kalahandi included 14 revenue villages along with a belt of surrounding
forested lands within Leliguma Reserve Forest, without settling the rights of the villagers

(Sundarajan, 1963). In a number of princely states, all wastelands not already declared as

10

Reserved forests or protected forests were declared as khesara forests6 on a blanket basis,
whether they were covered by forests or not (Ramdhyani, 1949). However, the princely
states often had little capacity to regulate the use of these remote forests; creation of legal
forests often had a minimal effect on land and forest access in remote, interior forested
areas.

The British were comparatively more cautious in creating and regulating legal forests
in the interior tribal-dominated areas as they anticipated resistance. One effort to create
reserved forests and enforce regulations in the customary lands of the Saora tribes led to
an agitation which forced the British to de-reserve 26 sq. miles in Ganjam agency area
(G00, 1977). Faced with similar possibilities of resistance, there was little serious effort
to restrict shifting cultivation in major British controlled tribal tracts of Orissa such as
Kandhmals and Baliguda, where no legal forests were created until after independence. In
zemindari7 areas such as Jeypore or Khariar, no reserved forests were created; only legal
forests with much weaker restrictions were notifieds.

To sum up, by the time of independence, in most forested areas of Orissa the survey
and settlements had not been carried out. Legal forests had been created in many areas,
especially the princely states, but regulations restricting their use were not enforced

strictly. Many of these legal forests contained settlements and cultivation where no rights

 

6 Khesara forests were a category of legal forests where local people had access to small timber and other
forest products. The blanket declaration meant that all lands that had not already been declared as forests or
were not already settled as private land were automatically converted to this category of forest.

7 In the zemindari system, the British or the sovereign princely states allocated large areas to zemindars
who were responsible for administering the area (including the forests) and collection of rents. They
effectively ruled the area, but the sovereign powers were with the British or the princely states. Some
zemindaries such as Jeypore were huge, covering tens of thousands of villages, where as some covered
only a few villages.

8In Jeypore Zemindari, an area of 1615 sq. miles was declared as Reserved Land and Protected Land under
section 26 of Madras Act, 1882, which did not require the zemindari to carry out detailed settlement of
rights (Behuria. 1964)

11

settlements had been carried out. The land administration systems and tenure systems in
forested areas were diverse, varying from one princely state and province to another, each
with their peculiar features. Given the remoteness of these areas, their mostly tribal
populations remained semi-autonomous. Customary land tenures based on kinships and
clans persisted in most tribal areas, often overlaid or integrated into tax or revenue
generation systems imposed by the sovereign powersg. Shifting cultivation was widely
prevalent.
Internal Territorialisation after Independence

Post-independence, the state of Orissa inherited a complex patchwork of land and
forest administration systems from three British provinces and 24 princely states, with the
major task of unifying and rationalising these diverse systems. Land reforms, which had
been a major demand during the independence struggle, was a major priority. The land
laws were changed to incorporate the principles of land to the tiller, abolition of
intermediaries, land ownership ceilings as well as protection of tenants (Appu, 1996).
Land reforms were focussed on private land and land under tenancy, and no efforts were
made to reform the governance of public land held by the state. There were no changes in
the legal framework for forest governance, primarily because forests were seen as a
national resource for development and there was little political pressure to reform the
forest governance systems. The post independence territorialisation processes in Orissa
reflected these changes and continuities in state policy. A number of new legal
instruments including land reform laws and survey and settlement laws were enacted, and

efforts were made to create a unified system of internal territorialisation. We discuss

 

See Kumar et al. (2005) for an overvrew of pre-independence systems of land administration In forested
areas.

12

these processes in the context of the forested landscapes of Orissa. The two main
instrumentalities of territorialisation i.e. survey and settlement and forest notification are
addressed in separate sections.

Survey and Settlements

In the post—independence period, the Government of Orissa tried to rationalise land
administration systems and to carry out landlo and tenancy reformsl '. The government
sought to follow the basic principle of “land to the tiller” and initiated survey and
settlement in forested areas in earnest. One of the dilemmas it faced was whether to
recognize occupancy rights over the widespread shifting cultivation on hill slopes. Like
the British, the policy makers in Orissa had a strong bias against shifting cultivation,
which they saw as destroying forests, causing soil erosion and disturbing hydrologic
cycles”.

In an important post-independence decision on shifting cultivation during the survey
and settlement in the Dongarlal3 areas in Kalahandi where shifting cultivation was
common, the government decided to provide occupancy rights only to areas under plough
cultivation and to deny legal occupancy rights over shifting cultivation lands. In 1953, the

Board of Revenue asked the survey and settlement officers to deny tribals’ occupancy

 

'0 Orissa Land Reforms Act, 1960 instituted a ceiling on individual land ownership and provided for
distribution of land to landless peasantry. As in other parts of India, these land reforms laws were never
implemented effectively.

H Tenancy reforms were carried out to ensure that cultivators who cultivated land held by others were
pzrotected and provided rights over that land.

The usual term used was “pernicious, evil practice” (G00, 1940; G00, 1958; G00, 1959). Or as the
Koraput survey and settlement report says, “Shifting cultivation commonly known as podu cultivation is
causing incalculable damage to forest growth and soil conservation” (Behuria, 1964). This view of shifting
cultivation has been contested strongly in recent years and shifiing cultivation has been shown to be
ecologically sustainable in many circumstances. See Conklin (1957), Brookfield and Padoch (1994),
Kunstader et. al (1978), Ramakrishnan (I992), Darlong (2004).

13 Dongarlas were hilly region in South East area of the erstwhile Kalahandi princely state, inhabited
mainly by Kondh tribals.

13

rights over shifting cultivation lands while preparing a special category of records for
these lands called the Dongar Khasras”. As per Sunderrajan, the Officer-in-charge of the
survey and settlement:
“The Dongar KhasraI5 “contains the name of the cultivator with parentage, caste,
name of the Dongar, cultivated crops grown, seed capacity of the slopes under
cultivation, number of Kodkis (spades) possessed by the cultivator and rent settled
for cultivation. A stereotyped note to the eflect that no occupancy right accrues
over the slopes is attached” (Sunderrajan, 1963).

25,000 Dongara Khasras covering 125,000 acres in 850 villages were prepared in the
two blocks of Thuamulrampur and Kashipur, though without any occupancy rights
(Sunderrajan, 1963). The legal basis of denial of occupancy rights over the hill slopes
was never made explicit by the Government.

The next major decision affecting the forrnalisation of tribal land rights was taken
during the survey and settlement of undivided Koraput district”. The undivided Koraput
district was formed out of the Jeypore Zemindari and the first land survey and settlement
was completed in this area in 1964. The survey and settlement was carried out using the
Madras Estates Land Act, 190817 which conferred heritable and transferable occupancy
rights on people who held land for the purpose of agriculture and paid land rent to the

superior tenure holder. Before independence, the cultivator was a tenant of the Jeypore

 

'4 Dongar means hills. “Khasra” means “land parcel record”.

'5 Dongar Khasras were special official documents which indicated who was doing shifting cultivation on
which piece of land, but did not provide any occupancy rights to the cultivators.

’6 Undivided Koraput district has now been subdivided into four districts including a new and smaller

Koraput district. Thus the term Undivided Koraput district is used to signify the original larger
administrative entity.

'7 The Jeypore Zemindari came under the Madras Presidency, and the Madras Estates Land Act, 1908, was
legislated by the Madras Government to regulate land tenure and relationships in zemindari estates.

l4

zemindar and after the abolition of the zemindari system; he became the tenant of the
State of Orissa.

During the Koraput survey and settlement process, an initial position was taken that
even though shifting cultivation was believed to be extremely harmful to forest growth
and soil conservation, it should be recognised but regulated because of people’s
livelihood dependence on shifting cultivation (Behuria, 1964). It was decided that
shifting cultivation land on hill slopes up ten percent would be settled with cultivators but
the area on higher slopes would be treated as encroachment liable for eviction in due
course. The legal and procedural basis for this decision, especially the proposed
evictions, was not made explicit but the process of demarcation of areas for shifting
cultivation began in 1954-55.

In 1960, the Board of Revenue (BOR) took a decision not to recognize in the
Koraput survey and settlement any rights to land used for shifting cultivation on hill
slopes. The BOR used the Madras Estate Land Act’s Section 15, subsection 3, which says
that a person who has occupied land for cultivation for continuous period of 12 years
shall automatically be considered a cultivator with occupancy rights over that land. The
BOR decided that “shifting cultivation couldn ’t be construed as continuous possession
for a period of twelve years” and therefore should not be recorded as land with
occupancy rights. Such land would be classified as Government land”.

The basis for this view, given that the same family or community possessed these
lands for generations as per the tribal customary law, was not made clear. The BOR did

not seem to be very confident about the legal validity of its decision and referred the

 

'8 BOR Letter no 434-XXl-57/58-L-LRS dated 12’h March, 1959

15

matter to the state government once again in 1962 for clarification. This clarification
apparently was never issued and the matter remained pending. Unfortunately, the tribals
made no legal challenge against these decisions as they were not aware of the
significance of the legal status of their shifting cultivation land. The state government’s
interpretation of the law ensured that tribal rights over shifting cultivation lands were not
recognized during the Koraput survey and settlement.

With a precedent set in the Koraput survey and settlement, it became easier for the
Government of Orissa to follow the same principle in all other forested areas. Within the
village cadastral maps, hill slopes with shifting cultivation were categorized as state
owned revenue wastelands or as revenue forests. The tribal claims to territorially defined
boundaries were not entertained during survey and settlements, and large parts of tribal
habitats were converted to government land.

Only land occupied for permanent cultivation, located in the valleys, was settled with
the cultivators. Even this tended to be problematic due to the lack of awareness of the
complex settlement procedures amongst the illiterate villagers, especially the tribals.
Mortgaging valley land to moneylenders has been a common practice in tribal areas and
often during the survey and settlements, the moneylenders and non-tribals managed to get
such land settled in their names. This problem has been endemic in certain pockets of
Koraput and Kandhmal districts, with the fertile valley lands passing to the hands of
moneylenders, and has been a major cause of conflict between tribals and non-tribals.

A Planning Commission report (G01, 1986) describes how the survey and settlement

process in the tribal villages of Koraput district recorded less than 10 percent of the land

16

that tribals occupied as belonging to them. Regarding survey and settlement in the
Niyamgiri hills, home to the Dongaria Kondhs, a primitive tribal group, the report says,
“In one village of Bissamcuttack block, while only 2.50 acres of land below 10
percent slope out of the total 936.13 acres in the village was recorded in favor of
tribals, several thousand jackfruit trees (owned by individual households) and at
least two thousand mango trees (communally owned) located on higher slopes
were found to be on land recorded as state land” (G01, 1986).
This was a common pattern across the forested areas of Orissa. Figure 2 shows the
categorization of land inside village boundaries, i.e. land that has been covered by

cadastral mapping in four tribal districts of Orissa.

Figure 2. Legal land categories as per cadastral surveys in four forested
districts of Orissa

100°/o

90%

—_
——
——
_
—_
—
—_—
_————
H

80%

 

70%

——
—
.—
.—
—_
—
——
——
—
—_
y—_
u—
——
.—
_——_
—-

60%

 

 

 

 

 

 

 

 

 

50%

 

llllllllllllIlllllllllllllllllllE

40%

llll
lllllllllllllllllllllllll___

 

 

 

 

30% —

 

20% 3 “ill” Revenue Forests l

millilll

ee/
///.

10% ,
g \x -- Non-forest
00/0 , &\ \ & §L\\\ 5 : Revenue
. . . . Wasteland
Kandhamal Rayagada Malkangrrr Gajapati V
Districts §§§ Private Land

1

\l

Areas covered by cadastral mapping do not include forests notified under forest
laws“). As can be seen, the extent of state-owned land in the areas covered by survey and
settlements in these districts ranges from 66 to 76 percent. In certain blocks20 within these
districts, the extent of government owned lands within village boundaries ranges from 83
to 87 percent. In other words, most of the land brought under survey and settlements was
categorised as state owned land on which local people had no rights. Much of this land
was under customary occupation for cultivation by local tribals.

Forest Notifications

Almost 40 percent of Orissa’s land area is currently categorized as state-owned legal
forest. After independence, in order to obtain quick legal control over forest areas
notified by princely states and zemindaries, the Government of Orissa amended the forest
laws to deem these forests as “reserved forests” or “protected forests” under the Indian
Forest Act, 19272]. Since no proper rights settlements were carried out originally for
these forest tracts, they contained populations and cultivation, including large areas of
shifting cultivation. A forest enquiry committee set up by the Government of Orissa
pointed out that that almost 40 percent of the lands categorized as legal forests in Orissa
were barren lands and hills without forest vegetation. subject to shifting cultivation or
“unauthorized” dry cultivation (G01, 1958).

New legal forests under the forest laws were also created after independence,

especially in the major shifting cultivation zones. Ostensibly this was carried out in

 

'9 Cadastral mapping generally excludes areas which have already been notified as forest land under forest
laws (Madras Forest Act, Indian Forest Act and Orissa Forest Act). However survey and settlements in
Orissa also create land categories termed as “forests” inside village boundaries. All these lands categorized
as forests by Survey and Settlements are considered as “legal forests” under Forest Conservation Act, 1980.
2 Blocks are smaller subunits of districts and consist ofa few hundred villages each.

2' Section 20-A, Indian Forest Act, I927

18

accordance with the procedures of rights settlements under the Indian Forest Act, 1927.
Case studies show that these procedures, especially settlement of rights, were not taken
up properly in many cases”. As in earlier forest notifications, settlements and cultivated
tracts were included within the legal forests. Large areas under shifting cultivation, which
had not been recognized as a valid land use practice, were also classified as legal forests
(GOO 1989a; GOO, 1989b; Kumar et al., 2005).

Due to these processes, hundreds of thousands of cultivators, especially from
tribal communities, were stranded on land categorized as state forests. In 1972, the
Government of Orissa acknowledged the problem of widespread settlement and
cultivation on legal forest lands. It initiated a process of identifying occupied forest lands
in order to settle them with eligible cultivators”. Shifting cultivation lands on hill slopes
were not considered eligible for such rights settlements and little progress was made in
this effort.

These efforts came to an end with the enactment of the Forest Conservation Act,
1980 (FCA) by the Government of India. This Act took away the power of the state
government to transfer forest land to any other land use, including settling it for
agriculture. It became extremely difficult for the state government to recognize the rights
of cultivators on forest lands, because to divert legal forests for any purpose requires

sanction of both the central government and the Supreme Court of India (see Rosencranz

 

22 Examples of poor rights settlements during forest creations are common. For instance, 30 villages were
included within the Baghnadi Reserved Forest of Kandhamal district by mistake, even though a thorough
survey was supposed to be carried out before creating the Reserved Forest (Kumar et al., 2008).

The state government in a Policy Resolution dated 10‘'1 June, 1972, pronounced that encroached forest
areas by tribals, harijans and other landless persons would be released for settlement. The Government
issued executive orders for constituting Sub-Divisional Committees for undertaking comprehensive survey
of all forestlands to identify areas which would be set apart for agricultural use and areas which would be
managed as forests. This process was never completed.

19

and Lele, 2008). At the micro level, this means that cultivated lands wrongly categorized
as legal forests, including-those where no rights settlements have ever taken place, can no
longer be settled with the cultivators. The impact of this law can be gauged by the fact
that from the period 1980 to 2005, only 30 hectares of forest land in all of Orissa were
settled with people occupying these lands.
IMPLICATIONS OF INTERNAL TERRITORIALISATION
The process of forrnalisation of land and forest tenure through state-led
territorialisation had a major impact on the local land access and rights regimes in tribal
Orissa. Most of the lands in these areas were converted to state ownership through survey
and settlements and forest notifications. Small parts of the landscape were settled as
private land with individual households, but often much of the land claimed by the
inhabitants was classified as state land. We illustrate this through two village case studies
where we compare the actual land use and claims on land with the formal rights created
through survey and settlements and forest notifications. One case study of four villages is
located in Kalahandi district and another case study of one village is located in Kondhmal
district. Both cases are located in forested hilly tracts inhabited by tribals.
Kirkicha Microwatershed
Kirkicha watershed, located in the Thuamulrampur block of Kalahandi district,
consists of four villages and large patches of legal forest. It consists of a long and narrow
valley with a total area of 2652 acres, of which 1275 acres lie within the boundaries of
the four villages. The rest of the area is categorized as reserved forest. The four villages
have 129 households, mainly Kandh tribals. The majority of the families live below the

poverty line and depend primarily on subsistence agriculture. The valley bottoms are

20

used for terraced paddy cultivation and the hill slopes for shifting cultivation. Most
households cultivate both valley lands and hill slopes. Paddy is the main crop from the
valley lands whereas hill slopes are used to raise pulses, beans, minor millets and dryland
rice.

Before independence, the area was under the jurisdiction of the Karlapat zemindari
of the Kalahandi princely state. No survey and settlement had been carried out in the area
before independence. In two of the four villages, Mohangiri and Khandala, the first
survey and settlement was carried out in 1963 and a revisional survey and settlement in
1988-89. During the 1963 settlement, the lowlands were settled with the cultivators in the
two villages and special records (Dongar Khasras) were prepared for hill slopes under the
occupation of shifting cultivators. The Dongar Khasras were not treated as ownership
rights (Sundarajan, 1963). In 1988-89, the govemment withdrew the Dongar Khasras for
shifting cultivation and these lands became government land. Meanwhile the upper slopes
of the hills were notified as Reserve Forests under the Orissa Forest Act, 1972. The other
two villages, Ushamaska and Kirkicha, were surveyed for the first time in the 19905 and
the final record of rights was published in 2002. Thus by 2002, the whole watershed had
undergone land and forest settlement and formalization of rights over land and forest was
completed. Each parcel of land was listed in the record of rights. As per the legal records,
out of 2652 acres within the watershed area, only 158 acres of land, all of it in the valley,
has been settled with the individual families living in the watershed. Another 56 acres of
fertile paddy land in the valley has been settled in the name of the village deity and is
effectively controlled by the powerful ex-zemindar of Karlapat watershed who doesn’t

live in the watershed. The rest of the land has been categorised as state land. As per the

21

official land records, 42 out of 129 households (32 percent) do not legally own any

agricultural land.

However, the actual land use in the watershed does not match the formal records of

ownership. A plot-by-plot analysis revealed that villagers living within the watershed

actually cultivate as much as 707 acres of land, even though they legally own only 158

acres. The inhabitants of the watershed cultivate as much as 568.6 acres of government

land (See Table 1 below).

Table 1.1 Kirkicha watershed legal land tenure and actual land use (acres)I

 

Official tenure status

Actual land use

 

 

 

 

 

 

 

 

 

 

 

 

 

2 Permanent cultivation CWT?" Total Area Uncultivated

Legal Land Legal shiftmg under (lnClUdm SC

Categories Area Paddy land Dryland cultivation cultivation fallows )
G°"""‘"‘°“‘ 2438.0 26.7 240.8 301.2 568.6 1882.3
land subtotal

1565”“ 1376.0 0.0 0.00 141.0 141.0 1235.1

orest

Forests within

cadastral 290.0 9.6 69.5 46.00 125.1 164.9

Boundary

Non-forest 772.0 17.1 171.3 101.3 289.7 482.3

Unknown 12.9 12.9
Private subtotal 214.0 86.9 107.2 0.0 194.0 20.0

Owned by

Watershed 158.2 31.1 107.2 0.0 138.3 20.0

families

Owned by

local deitys 55.8 55.8 0.00 0.0 55.8 0.00
“‘3' ”mm 2652.0 113.6 348.0 301.3 762.7 1902.2

and government

 

 

 

 

 

 

 

INumbers may not sum accurately due to rounding.
2The legal area of private land, forest land inside village boundary, and non-forest government land was
obtained from the Record of Rights for the four villages in the watershed. The area of forest land outside
the village boundaries was obtained by subtracting the total area of the four villages from the total area of
the Kirkicha Watershed as determined by Orissa Remote Sensing Agency (ORSAC). All the land outside
the village boundaries are categorized as reserved or proposed reserved forests.
The uncultivated area is mainly on the hill slopes. A part of this is under shifting cultivation fallows. The
area of shifting cultivation fallows was not measured during the plot-to-plot survey.
4The ex-zemindar of the area lives in Karlapat, a nearby village and leases out these areas for cultivation to
the villagers from the watershed villages on a sharecropping basis.

22

 

The plot-wise analysis reveals the disjuncture between the legal and de facto status
of land use. This disjuncture exists even though the survey and settlement took place in
two villages in the watershed in 1982 and the other two villages in 2002, just five years
before the data were collected. A major reason for the discrepancy between the actual
area cultivated and the area officially settled as private land with cultivators is that during
the survey and settlement, occupancy rights over shifting cultivation were not recognized.
Almost all families in the watershed are involved in cultivating land categorised as state
land. However, the villagers point out that these are their customary lands, cultivated by
their forefathers. Their claims over land are accepted by the other community members
and neighbouring communities as valid and sacrosanct, yet in the eyes of the law, they
are illegal.

Gaurigaon Village

Gaurigaon village is located in the western part of Kandhmal district and is inhabited
by 29 families, all of whom belong to the Kandha tribe. Before independence, Gaurigaon
came under the Baliguda Agency area, which was a part of the Madras Presidency and
was transferred to the newly formed state of Orissa in 1936. No survey and settlement
was taken up in Baliguda’s remote hilly tracts before independence. The British also did
not undertake any forest reservation in the Baliguda area.

The first regular survey and settlement operation in the sub-division was initiated in
1965 and completed by 1983. Under the survey and settlement all land that tribals were
cultivating before 1969 was to be settled with the occupants as Raiyati (private) land

(G00, 1985). Land on the hill slopes under shifting cultivation was not taken into

23

consideration and was categorized as government land. The final record of rights for
Gaurigaon was published in 1982.

As per the official records, the total area of the Gaurigaon village is 676 acres and of
these 575 acres is government land and 101 acres of land is settled in the name of the
cultivators. Most of these cultivators live in neighboring villages and only 44 acres is
settled with the residents of Gaurigaon. As per official records, three households in the
village are totally landless and another 22 own very little land. 87 percent (501.4 acres) of
the government land is categorized as forest land.

The residents of Gaurigaon say that many of the villagers did not take the
measurements and mapping under the survey and settlement seriously. In the words of a
villager:

“It was our land, our forefathers ’ land; we have made the bunds and
created the fields. Who can take it? We have been cultivating since the times of
the British, these people have come and measuring the land, where will they take
this land? We didn ’t know the importance of this measurement. Those who didn’t
bother to go and move around showing their lands to the measurement people
didn ’1 get legal rights over their land. Even then they gave rights over only the
lowlands, and no pattas (titles) were given for uplands”.

The villagers complain that the survey and settlement staff settled land cultivated by
their ancestors with the neighbouring villagers, who are non-tribals, creating conflicts
that continue to date. The settlement of tribal lands with non-tribals during the 1965-83
survey and settlement is common in Kandhmal district and has led to continuous strife

between tribals and non-tribals.

24

Plot based analysis showed that apart from cultivating the 44.4 acres that they owned

legally, the residents of the village were cultivating an additional 151.7 acres of

government land (Table 2). Out of these, 60.6 acres were current shifting cultivation

area“. All households in the village are involved in cultivating government lands on the

hill slopes.

Table 1.2 Gaurigaon village Igal land tenure and actual land use (acres) '

 

Official tenure status

Actual land use (acres)

 

 

Uncultivated

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Permanent cultivation Current Total Area . _
Legal Land Legal Paddy shifting under (1nc1udrngl SC
Categpries Area land Dryland cultivation cultivation fallows )
Government land 2
subtotal 574.8 14.2 76.8 60.6 151.7 423.1
Forest 501.4 6.1 64.0 60.6 130.8 370.6
NOU'IOTCSI 73 .4 8.1 12.7 0.0 20.8 52.5
Private subtotal 101.2 86.9 14.3 0.0 101.2 0.0
Owned by
local 44.4 30.1 14.3 0.0 44.4 44.4
residents
Owned by
people in
neighboring 56.9 56.9 0.0 0.0 56.9 56.9
villages
Tm‘" ”mate 3"" 676.0 101.2 91.1 60.6 252.9 423.1
_government

 

1 .
Numbers may not sum accurately due to rounding.

2The uncultivated area is on the hill slopes. A major part of this is secondary forests under a shifting
cultivation fallows cycle. The area of fallows was not measured during the survey.

There has been no new immigration into the village since 1982 (when the survey and

settlement was finalised), and therefore the discrepancy between the formal land records

and actual land use reflects the claim of the villagers that most of their shifting cultivation

land as well as land under permanent cultivation was not formally settled with them.

Although detailed plot-to-plot analysis for examining the discrepancies between the

legal rights and the de facto actual rights was carried out in only these two case studies,

 

24 Areas which are currently being used for cropping and doesn’t include the shifting cultivation fallows

25

 

field visits and secondary information show that they exemplify the situation in much of
the forested part of Orissa (Kumar et al., 2005). Almost 80 percent of the land in the
forested districts of Orissa has been categorized as government land (forest and non-
forests). In Kandhmal and Gajapati districts, this figure goes up to 85 percent. Satellite
pictures show clearly that much of the government land in these areas, including legal
forests, continues to be under shifting cultivation, short fallows or permanent cultivation
(Kumar et al., 2005, Kumar et al., 2008). Landscapes including hill slopes continue to be
under agricultural use, with the valley bottoms used for terraced rice cultivation, the
lower slopes for various vegetables and dry land crops and the hill slopes for shifting
cultivation (Kumar et al., 2005). However, the inhabitants have legal rights over land
only on valley bottoms and parts of the lower slopes. Thus over a period of five decades
afier independence, the forested landscapes of Orissa, which were a complex mix of
forests, shifting cultivation fallows and valley bottom agriculture, have been formalised
into legal terrains of discrete forests, other government lands and privately owned
agricultural lands. This transformation took place through the survey and settlements and
forest notifications.

In the eyes of the state, these forested landscapes have been legally rationalized, with
each parcel of land linked to clear rights and responsibilities codified formally in the
Record of Rights and forest notifications. By law, cultivation on govemment land is
illegal, and large numbers of people whose rights were not recognized have now become
lawbreakers for living on and cultivating their ancestral lands. The criminalisation of the
basic subsistence livelihood of vast number of people has inevitably led to constant

conflict and contestations on the ground.

26

The most critical problems relate to the status of lands declared as legal forests under
the forest laws or through the survey and settlement processes. The forest bureaucracy
has been aggressive in asserting its control over legal forests and in trying to remove the
people living on forest lands. It uses the stringent legal provisions in the forest laws,
including court cases and fines for this purpose. The legal power to file cases against
anyone caught felling a tree on any land gives local forest officials extraordinary capacity
to harass shifting cultivators and extract rents. Plantations under various forestry
programs are also commonly used to evict cultivators from legal forests. The conflict and
tensions relating to forest encroachments and use and the resulting anger has been a
major contributory factor for increasing left wing insurgency in these forested areas
(G01, 2006).

The Revenue Department manages all state-owned lands not transferred to the Forest
Department. Land laws enable the Revenue Department to file cases against cultivators
on government land and to evict them. It has the power to transfer or lease out any
govermnent land located in any village without the consent of the villagers. Thus the
legal control of all the land except for the small area under private title has passed into
the hands of state. One consequence is the state’s ability not only to exclude the forest
dwellers from these lands, but also to divert these lands to corporations and other private
parties. This has been a major cause of conflict.

The lack of legal rights over land has also implied that the cultivators have little
incentive to improve these lands. They cannot access either state support or bank loans
for investing in these lands. Paradoxically, in this uncertainty over land rights, even

development projects specifically designed for poverty alleviation and welfare of

27

marginal sections, including land development and ecological regeneration, often end up
banning the poorest. We illustrate this below.
DEVELOPMENT INTERVENTIONS AND RIGHTS REGIMES

The non-recognition of customary rights regimes of indigenous people is a common
feature across the world. The uniqueness of the Indian situation stems from the fact that
the Indian Constitution provides strong protection to tribal rights over land and tribal
development has been one of the stated priorities of the Indian state since independence.
A separate Ministry of Tribal Development exists at the central government level and
most states with large tribal populations have similar state-level ministries. Tribal
development is an integral and privileged part of the Indian development discourse.
Billions of rupees have been spent on poverty alleviation in the forested areas with a
large number of development programs being launched and implemented. Special
bureaucratic offices such as Integrated Tribal Development Agencies have been created
for development of tribal dominated areas and special development projects have been
launched for the “primitive tribal groups”. However, almost none of these programs and
initiatives, including programs focused primarily on land development and forestry, take
into account the contested nature of the land rights regime.

In Orissa, land based development programs include watershed development
programs, social forestry, and Joint Forest Management (JFM), among others. Six
watershed development programs with an estimated budget of more than five billion
rupees (about $100 million) covering almost a million hectares are being implemented in
the state, with the explicit objectives poverty alleviation and sustainable development

through a participatory approach. Joint Forest Management has been taken up as a

28

participatory program for forest conservation in which the state supports development
activities in villages and provides access to forest products in exchange for villagers’
protection of state owned forests. JFM in Orissa also has a budget running into billions of
rupees. Land based development activities are also taken up through programs such as
National Rural Employment Guarantee Scheme (NREGA).

Most of these programs are implemented on the basis of the formal land rights
regime, which as shown above, often diverges greatly from the actual land use existing
on the ground. Attempts to carry out program activities such as plantations on cultivated
land formally categorised as state land but actually in the possession of individuals or
communities often lead to conflicts. In many cases such conflicts have led to
dispossession of cultivators, clashes, forced migration and even arrests. There has been
no systematic study of extent of such cases, but documented examples from different
parts of Orissa are listed in Table 3.

Table 1.3 Examples where development program interventions have led to
dispossession and conflict

 

 

Location Prog. Intervention Program Impact
Dekapar, Koraput Forestry plantations Soil conservation, Loss of customary shifting cultivation
district (142 acres) JFM land; 23 families migrated out of village

as these lands were only source of
livelihood ((Kumar et al., 2005)

 

 

 

Podagarha, Cashew plantation Soil conservation Loss of land access; cashew plantation

Koraput district (150 acres) leased out to a corporation; villagers can’t
access the land or plantation ((Kumar et
al., 2005)

Kirkicha, Forest plantation JFM Loss of cultivated land; conflict (Kirkicha

Kalahandi district case study)

Kadalibadi, Afforestation Compensatory Loss of prime cultivation land for Juang

Keonjhar district afforesation tribals (classified by state as a Primitive

Tribal Group or PTO). Starvation and
malnourishment (Rath, 2005)

 

 

Benyamaliguda, Effort to any out Regional Long Village opposing plantation physically
Koraput district forestry plantations Term Action Plan attacked by Forest Department personnel;
(RLTAP) houses burnt down, one minor girl

seriously injured; two villagers arrested
(The Pioneer, 2008)

 

 

 

 

29

 

Anecdotal accounts of similar cases are common across Orissa’s forested areas.
Similar conflicts have been reported from across the country (Sarin, 2005; Dreze, 2005;
Ghosh, 2006). For instance, in neighboring Andhra Pradesh, the Forest Department has
used the JP M program to evict vulnerable tribal shifting cultivators from 37,000 ha. of
forest land (Sarin et al., 2003; Blaikie and Springate-Baginski, 2007).

Even where program implementers may try to take into account the issue of
ambiguous land rights, they are stymied by diverse legal barriers embedded in the formal
tenure system. For instance, in both Kirkicha and Gaurigaon, the case studies discussed
above, efforts to address the land tenure issue are blocked because of the provisions in

national and provincial laws. Table 4 illustrates this:

Table 1.4 Conditions and procedures for assigning title to farmers cultivating
government land in study villages

 

Cultivated area (acres)

 

Government land Legal requirements for
Category settling in the name of
Kirkicha Gourigaon Total cultivator

 

Requires permission from both
Forest 266.] 133.0 399,] Government of India and the

Supreme Court of Indial

 

Cannot normally be settled with

 

 

 

 

 

 

 

 

Objectionable2 244.2 19.5 263.7 cultivators according to
Non- Revenue procedures
Forest N on- Can be settled with cultivators
. . 3 45.5 3.4 48.9 who meet eligibility
objectIOnable .
requrrements
Total 555.7 155.9 711.6

 

IForest Conservation Act, 1980 is applicable to these areas. Any non-forestry (legally valid) use of these
areas for requires the permission of MOEF, 001, which is very difficult to obtain.
2Objectionable: These are government lands categorized either as uncultivable wastelands or as Reserved
lands which as legally can’t be settled with a person cultivating these lands in normal course. To settle
these lands with cultivators need special and difficult procedures.
3Non-objectionable: These are lands which can be settled with a person occupying such land provided the
person meets the eligibility criteria provided in the laws.

30

 

As per our reading of the legal situation, out of the 71 1 acres of government land
under cultivation, only 49 acres of land (non-objectionable, non forest) can be settled
with cultivators under the current laws in normal circumstances. Thus even though
government funded watershed development projects have been functioning in both case
study areas since 2005, no progress has been made in taking up any substantial land
based initiative for poverty alleviation. The territorialisation processes undertaken in
these study areas over the last four decades created a complex tangle of legal barriers
which make it almost impossible for the inhabitants to obtain legal recognition of their
rights over the land they occupy.

CONCLUSIONS

In this paper we demonstrate how internal territorialisation for formalization of land
and forest rights led to non-recognition of customary land use of inhabitants of the
forested landscapes of Orissa, and created a disjuncture between formal rights regimes
and the de facto land use. Non-recognition of customary rights in forested areas is
common across the world (RRI, 2009). However, most prominent examples of such non-
recognition have mostly been the result of blanket declaration of vast areas as state
property, often under the principle of “terra nullius (nobody’s land)” applied on “deserted
or uncultivated land” as in Australia (Ritter, 1996) or through coercive treaties with
indigenous people as in North America and parts of Africa (Langton et al., 2004). These
were territorialisation processes on a large scale, with none of the minute attention to
detail as in the case of the Indian processes of territorialisation.

In contrast, Indian forested landscapes have been measured and surveyed thoroughly

with elaborate processes of rights recognition completed through massive exertions of

31

administrative efforts. The laws and policies which frame the territorialisation process
have no explicit agenda of dispossessing the forest dwellers of their lands. The post-
colonial laws laid down elaborate procedures to ensure that rights over land are settled.
Yet, the evidence in this paper shows that rights over much of the land in the forested
landscapes remained unrecognised through a complex conjuncture of laws, policies,
procedures and local contexts. The forrnalisation of rights carried out through detailed
process became instrumental in de-recognising certain forms of rights and claims of the
forest dwellers.

At the same time, precisely because the territorialisation exercises have been carried
out so minutely, the non-recognition of rights becomes invisible to the administration and
policy makers, and the illegality of forest dwellers becomes normalised. The discursive
power of legal landscapes, wherein maps, records and data represent the landscapes to the
administration, further add to the invisibility of the non-recognition of rights.

The non-recognition of rights can be partly attributed to the political marginalisation
of the forest dwellers and their inability to influence policy. Large-scale collectively
organized resistance to the imposition of formal rights and the resultant dispossession has
not occurred except in a few cases. Normally, the government’s assertion of its control on
state land and exclusion of local people is fragmented and creeping. Local people’s
existing land uses, even though deemed illegal, are allowed to continue, mostly without
much interference. Often, the cultivator is not even informed of the change in legal status
of land. Evictions, as illustrated in the examples, are small in scale and sporadic. Mass
evictions only occur for major projects such as dams or industrial development. These

mass evictions, which affect both private and state land, lead to resistance which is often

32

quelled by the state through police force and coercionzs. The use of coercion in such
situation illustrates the de facto power relationship between the state and its marginalised
citizens when structural issues of land are involved. Welfare-oriented development
processes, including land based programs, operate in this larger environment. Many
scholars have commented on development being apolitical or even anti-political
(Ferguson, 1994, Mosse, 2005) wherein programs focus on techno-managerial solutions
instead of engaging with issues of power or reasons of inequality and resource
deprivation. A broad set of incentives and drivers lead development planners and policy
makers to focus on interventions that require large funding outlays and focus on
enhancement of resource productivity without questioning who controls that production.
Rent seeking opportunities create strong vested interests in fund-intensive activities, with
little incentive to address structural problems such as land rights. Given this broader
context, it is not surprising that issues of land rights and access are overlooked and
government-mandated physical targets for development programs often result in
evictions and exclusions.

Struggles over land rights are perceived as radical politics to be kept at arm’s
length”. The civil society organizations including NGOs, except for a few, have also kept

their distance from these issues. In many of India’s forested areas including Orissa, the

 

25Almost all efforts to acquire large areas of land for projects in forested areas throughout India have faced
mass resistance. In Orissa there are many examples. For instance, almost halfthe land area acquired for the
Kalinganagar industrial estate in Orissa was state land cultivated by local tribals. The attempt to evict the
tribals led to killing ofthirteen people in police firing (Padhi and Adve, 2006). Similarly efforts to acquire
land for a factory and a bauxite mine in Kashipur. Rayagada district, led to resistance which resulted in
killing ofthree people in police firing (Padel and Das, 2007).

6 The issues of Kalinganagar, Kashipur and similar movements of resistance over land and displacement
find no mentions in the development discourse of donors and funding agencies. The political economy of
funding and state control over funded NGOs also means that most of them do not get involved in these
movements.

33

vacated political space has been slowly appropriated by the radical left formations
believing in armed revolution.

The issue of tenure and rights over forests and land becomes even more crucial with
the increasing emphasis on forests and plantations as sinks for carbon, as evidenced by
the negotiations on carbon sequestration and various carbon offset schemes based on
plantations. As carbon sequestration through trees and forests becomes more valuable,
demand for creating plantations for carbon sequestration will increase and this will
further aggravate the unstable situation in forested landscapes and lead to further
marginalisation of forest dwellers.

To address these critical issues in forested landscapes, several approaches need to be
combined. These include creating altemative narratives that problematise the legal
construction of forested landscapes, coalition building across locations and scales, and
political mobilizations to demand reforms. Grounded research can help develop coherent
alternate narratives by investigation of internal territorialisation processes and providing
verifiable evidence and arguments to illustrate their contradictions. A complementary
strategy would be to take the findings from such deconstructions to those actors who can
use this information to seek policy changes. These include sympathetic policy makers,
others in the political leadership, civil society actors, and grassroots organizations
working on land issues. For example, the findings discussed in this paper have been
shared extensively with policy makers (including a parliamentary committee), media,

civil society actors and grassroots organisations. Along with similar research from other

34

parts of the country, the sharing helped create alternate narratives which in turn played an
important role in the enactment of India’s Recognition of Forest Rights Act, 200627.
Issues of land and forests rights and access need to be central in development
interventions in forested areas, including action oriented research which can help identify
the complex genealogies of rights regimes and their implications on access to productive
resources for the poor. The inclusion of pro-poor tenurial issues within the ambit of
development interventions may be the most useful means to address poverty as well as

ecological degradation in the forested landscapes.

 

7 . . . . .
2 Please see Sarln, 2005, Sarrn (Forthcoming), Kumar and Kerr (Forthcoming) for overv1ews ofthe
enactment of this law, and the manner in which grounded research was used to change the dominant
discourse about the construction of legal forests.

35

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40

CHAPTER 2
DEMOCRATIC ASSERTIONS: THE MAKING OF INDIA’S RECOGNITION OF
FOREST RIGHTS ACT
Abstract
Inclusion of marginalised sections and minorities one of the most vexing problem faced
by democratic politics. In this paper, I discuss the enactment of a recent Indian law, “The
Scheduled Tribes and Other Forest Dwellers (Recognition of Rights) Act, 2006,” as an
example of inclusion of marginalized groups in democratic processes. This law was
enacted in response to a nationwide mobilization of marginalized forest dwellers and
their advocates demanding rights over forests. Grassroots level formations representing
forest dwellers came together across scales and spaces to form a network that
successfully negotiated the democratic politics of India to obtain this law. The case
illustrates the role of grassroots mobilizations in creating alternate discourses of
legitimacy, networking across scales and spaces and using spaces provided by
representative democracy to include the voices and demands of the marginalised in
democracies.
INTRODUCTION

An Act to recognize and vest the forest rights and occupation in forest lands in forest

dwelling scheduled tribes and other traditional forest dwellers who have been

residing in such forests for generations but whose rights could not be recorded...

And Whereas theforest rights on their ancestral lands and habitats were not

adequately recognized in the consolidation of state forests in the colonial as well as

in independent India resulting in historical injustices to the/Ores! dwelling scheduled

41

tribes and other forest dwellers who are integral to the very sustainability and

survival of the forest ecosystem [Preamble of the Scheduled Tribes and Other

Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006].

In 2002, the Ministry of Environment and Forest (MOEF), Government of India
(GOI) issued an order to the state governments asking that all illegal encroachers from
state forest lands be evicted within six months. The effort to implement this circular was
a tipping point in the longstanding politics of forest governance and exclusion in India
that eventually led to the enactment of the Scheduled Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Act, 2006, hereafter referred to as RFRA. This
law was enacted in response to a nationwide mobilization of marginalized forest
dwellers, and represents a rare occasion in Indian democracy when an important national
legislation reflects the demands of the marginalized.

In this paper, I analyze the processes that led to this law and show how coalitions of
grassroots organizations used spaces provided by representative democracy to enhance
voice and inclusion of the marginalized. Networks of place-based social movements and
civil society actors were able to weave together discourses of injustice, exclusion and
claim-making with astute advocacy and politics to pull off an important concession for
the most marginalized and voiceless sections of Indian society.

The paper briefly discusses the background to the campaign for enactment of the
RFRA and the coalescing of the coalitions pushing for the law’s enactment. I show how
the Campaign for Survival and Dignity (CSD), a coalition of more than 200 grassroots
and activist organizations from across the country, exemplifies social movement

networks, and I discuss its role in clawing a progressive legislation in the face of

42

considerable opposition. The paper draws on three main sources of data: analysis of the
listserv F orestrights, interviews with key protagonists, and my own participation and
observation of the mobilization leading to the enactment of the forest law. I was a
member of the CSD both at national level and in the state chapter of Orissa, and
participated in many of their meetings and mobilizations during 2005-2006.

INCLUSION OF THE MARGINALIZED: POLITICS FROM THE
GRASSROOTS UP

Inclusion of marginalized sections of society remains a paradox for democratic
politics, both in theory and in political practice (Young, 2000). Inclusion also becomes a
critical question for the marginalized whose lives and wellbeing are linked to their ability
to have substantive say in public decisions that affect their lives. The high modernist
developmental state with its tendency for top-down reconstruction of societies through
the instrumentality of the bureaucracy sees poor people as passive subjects of
development instead of active citizens participating in government (Scott, 1999). In most
developing countries, elite capture of the state, low literacy rate, absence of substantive
land reforms and other structural factors have led to relative marginalization of the
greater part of the population, while small sections have prospered (Bardhan, 1999). The
material and cultural resources, institutional access and the dense networks and
connections across locations and scales that the elites can draw on (Moore, 1979; Knoke,
1994) to obtain favourable policies and changes are not available to the poor. This implies
that collective mobilization is often the most important means that marginal sections can
use for getting changes in their favor.

Ordinary people use contentious politics through collective mobilization or struggles

in attempts to make governments account for their voices and aspirations (Tarrow, 1994).

43

Contentious politics become movements when they are backed by social networks and
alternate discourses and symbolism, and enter into sustained interaction against perceived
opponents (Tarrow, 1994). Yet, the politically marginalized face difficulties in entering
and sustaining the politics of contention and ensuring substantive changes at higher
political scales due to lack of literacy and resource constraints that make transaction costs
of collective action prohibitive. Their marginalization and lack of access to capabilities
and resources becomes a major hindrance in their ability to carry out effective collective
mobilization. This is especially true of struggles of people such as the forest dwellers and
tribals in India, whose lifescapes28 are marginal to the dominant sections, except as sites
of extraction.

Many issues confronted by the poor and marginalized are entangled in institutions
and processes of governance at different scales and locations, including at the national
and international levels. The complex and multi-scale nature of governance structures
creates obstacles for place based social struggles trying to bring change in state policy
through the politics of collective action. To address this problem, grassroots
mobilizations of marginalized people have increasingly tied up with other similar
struggles and civil society organizations to be able to reach across scales and spaces. This
has been facilitated through proliferation of communication and knowledge domains,

aided by rapid communication through the Internet.

 

28 Lifescape is a term from social anthropology used to frame the complex interrelationship between the
people, places and production systems (Some and McSweeney, 1996).

44

New forms of mobilization of the marginalized are coming into being that are as
embedded in place29 based politics as they are in national and global politics. The
increasing ability of locally-based grassroots organizations representing poor and
marginalized sections to link with each other and other actors in open-ended and spatially
dispersed networks allows such formations to draw both on the strengths of local, mass-
based political organizing and on the flexibility and reach of networks over scale and
space (Escobar, 2008). Increased ability to communicate and deliberate across scales and
locations has allowed collaboration of such struggles with other actors who share similar
commitments and worldviews (Keck and Sikkink, 1998). This provides novel modes for
the politics and struggles of marginalized people to traverse political decision making
across scales and to cut across the traditional, hierarchical networks of information,
power and authority. It also makes it possible for such formations to access expertise and
knowledge to comprehend and negotiate the complex dynamics of governments and
policy making. In India, the cross-scale coalitional network that was instrumental for the
passage of the RF RA managed to combine traditional grassroots organizing with flexible,
open-ended network across space and scale to create a formidable instrument of change
on behalf of the marginalized forest dwellers.

The literature on social movements provides theoretical concepts to help understand
these networks. These include concepts of shared discourses, ideologies, and identities
which outline and define collective action frames (Snow et al., 1986); mobilizing

structures of networks and face-to-face groups; forms of mobilization, issues of

 

29 The notion of place here is drawn from Escobar, for whom place means the “the engagement with and
experience of a particular location with some measure of groundedness (however unstable), boundaries
(however permeable) and connections to everyday life, even if its identity is constructed and never fixed”
(Escobar, 2008).

45

representation and internal democracy, communications across space and scales,
processes of decision-making (Tarrow, 1994). The concept of “campaign” used by Keck
and Sikkink (1998) becomes especially useful in this context. A ntunber of actors,
including grassroots mobilizations and advocacy networks with shared ideologies often
come together in networks in “campaign modes” on certain issues. Keck and Sikkink
(1998) describe campaigns as sets of strategically linked activities in which members of
diffused networks develop explicit, visible ties and mutually recognized roles in pursuit
of a common goal. New linkages and networks may emerge through such processes
around common and shared understanding. In turn, campaigns may lead to emergence of
shared subjectivities which then feed back into the process of change and collective
action (ibid.).

I use the example of the Campaign for Survival and Dignity (CSD), which led to the
enactment of the RF RA, 2006, as an illustration of a networked movement created
through combining grassroots place based struggles of marginalized with flexible, open-
ended networking across space and scale. Along with the well-recognized importance of
framing and construction of alternate discourses, the chapter also brings to the fore the
ability of such networks to transcend scales of governance, reach diverse audiences and
pull together resources and knowledge to achieve substantial change in favor of the
marginalized.

I discuss the dynamics leading to the enactment of the RF RA and then analyze three
key aspects of the campaign leading to it: 1) the nature of the emergent network of the

marginalized forest dwellers and their allies, 2) the firming up of a frame of legitimacy

46

and justice and its circulation, and 3) the critical role of the politics of mass mobilizations
at different locations and scales in obtaining legitimacy.
THE SETTING AND THE CASE
Locating the Marginalization of the Forest Dwellers in India

Forest dwellers and populations living adjacent to forests are amongst the poorest of
the poor in India (Kapur et al., 2003) . These include communities designated as tribal30
by the Indian Government, as well as many other communities and groups including
dalits3 1. They are subsistence cultivators and forest product gatherers, deeply dependent
on land and forest resources for their livelihoods. Their rights and usage of forests has
been expropriated and negated by both the colonial and the postcolonial state through the
exercise of exclusionary colonial forest laws. The practice of forest governance on the
ground was characterized by conflicts, contestations, and exclusion of the forest
dependent communities (Pathak, 1994; Bijoy, 2008).

By 1950-51, about 71.8 million ha (approximately a quarter of India’s land area) was
claimed to be legal forest as per the data of the Ministry of Environment and Forests,
GOI (FSI, 2003). One consequence of the manner in which legal forests were created was

that millions of people still live on and cultivate forest lands. Recent scholarship shows

that various factors, including blanket declaration of legal forests”, non-recognition of

 

30 A large part of forest dwellers and dependent populations are tribals. More than half the tribal population
of India is below the official poverty line, compared to less than one-third of the rural population as a
whole (Kapur Mehta and Shah, 2003). In Orissa, three out of four tribal households are below poverty line
(De Haans and Dubey, 2004).
3' Dalit (literal translation oppressed) is a term used for castes which are at the bottom of the caste
hierarchy. The Indian Constitution provides special protection and affirmative action for both the dalits
(officially called scheduled castes) and tribals (official listed as scheduled tribes).

Please see Sarin (2005) as well and Kumar et al (2005) for descriptions of such blanket declarations in
Himachal Pradesh, Uttarakhand and Orissa.

47

customary land use such as shifting cultivation33 and hunting-gathering, poor settlement
of forest rights34 and administrative confusions over the status of land35 are responsible
for this situation. The existing forest laws have criminalized livelihoods and contributed
to the marginalization of millions of forest dwellers.

The increasing emphasis on conservation by both the Government of India36 and the
Supreme Court after the 19805 expanded the legal definition of forests and made it very
difficult to provide rights to people living on or cultivating forest lands (Rosencranz and
Lele, 2008). The Supreme Court, influenced by powerful conservationist lobbies, has
struck down efforts by the executive branch to try to address this problem, ignoring the
highly complex and problematic forest tenure and rights issues on the ground (Sarin,
2005). The strong pro-conservation stance of the Supreme Court led to a more powerfirl
forest bureaucracy, which treated the people living on forest lands as illegal encroachers
and made their evictions a priority.

The forest laws and policies have intersected with local power dynamics to affect the
forest dwellers in diverse ways. The criminalization of their livelihood and survival
activities makes it easy for petty government officials to exploit them (Kumar et al.,
2005, Sharma, 1990, F emandes et al., 1988). Illiteracy aggravates their inability to

negotiate formal legal systems and accentuates their vulnerability. Local elites

 

33 See Kumar et al. (2005) for recent conversion of customary shifting cultivation to state owned forests in
Orissa. See Darlong (2004) for shifting cultivation tenure in North-East India. See Rangarajan (1996),
Sravanan (1998), Pratap (2000) and Skaria (1999) for a discussion of how the British dealt shifting
cultivation.

34 See Kumar et al. (2008) for examples of faulty description of forest reservation in Orissa.

35 See Garg (2005) for description of disputed lands (orange areas) in MP and Chattisgarh, Kumar et al.
(2005) for Orissa, Ghosh (2007) for West Bengal, Sarin 2005 for an Indian overview.

36 The 001 passed the exclusionary Wildlife protection Act in 1972 (see Sabharwal et al., 2001 as well as
the Tiger Task Force Report (001, 2005) for the exclusions and conflicts caused therein). In 1980, it passed
the Forest Conservation Act, 1980 which further enhanced the powers of forest bureaucracy (see Sarin et
al., 2003).

48

collaborate with the state apparatus to control and exploit them. Often they are displaced
or evicted from their lands without compensation. The efforts to evict them from legal
forests accelerated in the late 1990s and culminated in an order to evict all “illegal” forest
dwellers from forest land in 2002.

Localized organized resistance and mobilization against exclusions in forested areas
has existed since colonial periods. In recent years, as the levels of exclusion and
dispossession have increased, local resistance and mobilization have intensified in
different parts of the country. The grassroots organizations and movements37 struggling
for the rights of the forest dependent poor aimed to come together at the national level to
ensure that the issue of forest land rights would be addressed. Pushed by these efforts and
the interest taken by the then Scheduled Tribe Commissioner, GOI (a constitutional
authority), a series of circulars was issued in 1990 which provided guidelines to the state
governments to regularize eligible forest land in occupation of forest dwellers and to
provide rights on these lands. Unfortunately, these were implemented in a limited manner
and had little impact in many parts of India.

State Overreach Creates a Campaign Issue

The matter came to a head in 2002 with the Ministry of Environment and Forest
(MOEF)’s order for evictions of all forest encroachers within a period of six months.
Immediately after the eviction order, there were efforts to forcefully evict people living
on or cultivating forest lands. The Forest Department set houses of forest dwellers on fire

and razed crops in the states of Assam, Rajasthan, Madhya Pradesh and Gujarat. In 2004,

 

37Some of the movements and organizations working at grassroots included Kashtkari
Sangathana, Maharastra; Adibasi Mukti Sangathan, MP; Jan Sangharh Morcha, MP; Bharat Jan
Andolan and a number of other small and large formations.

49

the MOEF admitted that people occupying 150,000 hectares of land had been evicted
from forest lands after the 2002 circular. It is estimated that almost three hundred
thousand families of tribals and non-tribal forest dwellers were forcefully evicted (Dreze,
2005). Estimates appeared in the media that evictions would eventually affect almost 10
million tribals and non-tribal forest dwellers (F rontline, 2002a).

The evictions and the human rights violations led to massive outcry by grassroots
level organizations and political formations all over the country (DTE, 2003). Protesters
framed the issue primarily in terms of injustice to vulnerable forest dwellers (CSD,
2003). They portrayed the presence of forest dwellers on legal forests as an outcome of
historical processes of dispossession and non-recognition of rights. They countered the
MOEF’s conservation and environmental justification with the discourse of the tribal and
forest dwellers as living in harmony with forests and protecting nature from the ravages
of modern development. These frames had already existed in discourses of grassroots
mobilizations (Brahmane and Panda, 2000) as well as in writings of certain
anthropologists and academics (Elwin, 1963; G01, 1986) and were now drawn into the
larger media and political discourse.

Attempts by grassroots organizations to create a national level forum to address forest
rights and evictions led to the formation of the Campaign for Survival and Dignity
(CSD), a coalition of grassroots organizations working for tribal rights. CSD became a
key player and interlocutor for the forest rights issue at the national level. An initial effort
by the coalition was a Jan Sunwai (public hearing) organized in Delhi in July 2003,
where over a thousand tribals, men and women, from all across the country came and

presented their accounts of evictions and human rights violations (CSD, 2003). It fast

50

became clear to CSD that the situation could be resolved only through new legislation
passed by the Indian Parliament.

The evictions also became an issue in the 2004 national elections. Tribal votes had
become more contested in the recent years between the major political parties, and the
spatial concentration of tribals in certain parliamentary constituencies also meant that if
mobilised, they could affect the electoral results. In a time of coalition governments,
when even a small number of parliamentary seats could play a crucial role, no national
party wanted to alienate tribal votes on the issue of evictions. Realizing that the attempt
to evict millions of forest dwellers and tribals from forest land was a political
miscalculation, the then Prime Minister promised that tribal encroachments on forest
lands would be regularized and evictions would be halted. However efforts to do so were
stayed by the Supreme Court for violating the Forest laws (Venkatesan, 2003).

In the 2004 national elections the opposition United Progressive Alliance (UPA)
coalition led by Congress (I) came to power. The Congress (I) had also made a pre-
election commitment to discontinue eviction of tribal communities from forest lands. The
CSD and other organizations working for forest rights took up the matter with the newly
elected government in a series of high level meetings in the latter part of 2004 and
organized a two-day convention in Delhi, where it clearly put forth the demand for a law
to recognize the rights of tribals and forest dwellers on forests (The Hindu, 2004).

The National Advisory Council (NAC)38 formed by the incoming Central

Government became the CSD’s initial locus of engagement. Various parties including the

 

38 The NAC was a new institutional mechanism created by the incoming government to advise it on
development issues. By including eminent members of the civil society, it opened spaces for non-
governmental actors to influence state agenda. Apart from the RFRA, the NAC is also credited with
facilitating the enactment of Right to Information (RTI) Act as well as the National Rural Employment

51

CSD made representations to the NAC. After considerable debate, the NAC
recommended that the Central Government pass a law to provide occupancy and user
rights over forests to forest dwellers. This led the Prime Minister to direct the Ministry of
Tribal Affairs to frame a law for restoring and recognizing forest rights. However, the
mandate covered only scheduled tribes (excluding non-tribal forest dwellers) and only for
forest land occupied before 1980 (The Hindu, 2005).
Prelude to the Creation of RFRA

The Ministry of Tribal Affairs (MOTA) was tasked to frame a new law. It created a
Technical Support Group (TSG) to work out a draft. The TSG included officials,
representatives from CSD and other civil society organizations. This enabled the CSD to
draw upon participatory consultations with its constituents at different scales and to
provide inputs for a progressive draft for the law. The CSD drew up a draft of the law for
this purpose, and much of C SD’s draft was incorporated in the TSG’s draft. An important
intervention of the CSD and its allied organizations was to include poor non-tribal forest
dwellers along with the scheduled tribe communities within the ambit of the draft law.

CSD also took up a nationwide campaign to ensure that the draft Bill was introduced
in the Parliament as soon as possible. Tens of thousands of postcards from villages were
sent to the Prime Minister. Over ten thousand tribals and forest dwellers from all over the
country gathered in Delhi in March 2005 to demand the law’s enactment (Ghosh, 2005;
CSD, 2005). The two-week public demonstration in the heart of Delhi attracted the
support of large numbers of parliamentarians, with more than fifty Members of

Parliament (MPs) from all parties attending (CSD, 2005). Simultaneously rallies and

 

Guarantee Act (NREGA). The NAC was headed by Sonia Gandhi, the President of the Congress (I) and the
Chairperson of the governing coalition; this gave it critical leverage.

52

demonstrations were organized in state capitals, district headquarters and local towns
across the country. Approximately a quarter of million forest dwellers and tribals,
including a large number of women, participated (ibid.).

By the end of April 2005, the draft bill was to be put up to the Council of Senior
Ministers for approval. Thus a new forest rights law started becoming a distinct
possibility. This evoked strong opposition from powerful conservation organizations and
the forest bureaucracy”. The conservationists unleashed a major media campaign“). A
group of young MPs, including Rahul Gandhi, son of the Congress (1) President and one
of major power centers in the Congress party, formed a group called “Tiger and
Wilderness Watch”. This group, influenced by hard-line conservationists, appeared to
strongly oppose the RF RA. As a result of this lobbying the cabinet decided to go slow
with the bill (Bindra, 2005b). In turn, a section of the media sympathetic to the proposed
law branded the MPs in the “Tiger and Wilderness Watch” as “blue blooded royals”4'.
Advocacy by both CSD and the anti-bill groups resulted in continuous coverage of the
proposed law in the media.

A copy of the draft bill was posted on the MOTA website in June 2005. This draft

was substantially different from the draft prepared by the Technical Support Group

(TSG) in that it excluded non-tribal forest dwellers and limited the application of the

 

39 The MOEF strongly resisted the proposed bill. Its letter to the Ministry of Tribal Affairs, GOI, said, “The
approach adopted in the proposed bill requiring denotification of vast tracts of forest lands and elimination
of legal protection for the forest cover, will lead to irreparable ecological damage of immense proportion”
(Ganapathy, 2005).

0 The powerful conservation groups used both media and behind the scenes lobbying to ensure that the bill
was not tabled. For instance see the story in The Pioneer titled “UPA's Tribal Bill: Tiger's Death Warrant”
(Bindra, 2005) or see “Jungle Law, Land for Votes” (Singh, 2005).

4] As illustrated by the headings in the Economic Times “Big Cats are More Adorable than Adivasis.

Rahal Gandhi Save Tiger Brigade, Tribal Bill in trouble”(The Economic Times, 2005).

53

proposed law to land occupied before 1980. CSD opposed the 1980 cut-off date as most
people had no means to show that they were in occupation of land before 1980.

CSD and other grassroots organizations perceived the exclusion of marginalized
groups claiming rights over forests yet not scheduled as tribes by the Indian government
as unjust and liable to create conflicts. The inclusion of non-tribal forest dwellers was
discussed and debated at length within CSD and amongst other supporters of the
proposed law. The main problem was that inclusion of non-forest dwellers would not
only help the poor non-tribal forest dwellers, but would also open the doors for powerful
non-tribal interests to grab forest land. However, given that a large number of poor forest
dependent people, especially in areas like North West Bengal, Uttarakhand and Orissa
were non-tribals, their exclusion would have been unjust. The CSD decided to strongly
support the inclusion of non-tribal forest dwellers, with strong measures within the law to
prevent forest grabbing by powerful non-tribals.

Given the uncertainty about the proposed law and the dilutions in the draft bill
prepared by the MOTA, the C SD went into campaign mode again. It demanded coverage
of non-tribal forest dwellers and bringing forward the cut-off date to 2005. The major
campaign initiatives included mass demonstrations across the country on 15’h August
2005 (Independence Day) with the slogan “Nyaya Chahiye ya Jail Chahiye” (“We want
justice or we want prison”). Approximately 150,000 forest dwellers participated in these
events. Simultaneously, Members of Parliament were contacted for support on the bill.
CSD members also managed to build bridges with some of the moderate conservation
groups who were willing to dialogue with the grassroots organizations working for the

law.

54

By October, there was strong disquiet on the ongoing delays in presenting the Bill in
Parliament. The CSD launched a Jail Bharo Andolan (fill the prisons movement) starting
from 15’h November 2005, to demand that the bill be presented in Parliament with
appropriate changes. Over 75,000 forest dwellers courted arrest across the country during
this campaign. Following this pressure from government coalition partners and the CSD,
the government presented the Bill in Parliament on the 13th of December 2005. The final
Bill as presented excluded non-tribal forest dwellers kept the cut-off date as 1980 and
provided for only truncated rights inside Protected Areas and thereby ignored some of the
major demands of the grassroots campaign.

The parliament formed a Joint Parliamentary Committee (JPC) of MPs to look into
the proposed law and submit their recommendations. The JPC invited oral and
documentary submissions. Along with the formal submissions, grassroots organizations
supporting the RFRA met almost all the members of the JPC and held lengthy
discussions. This helped the MP5 to become familiar with key issues related to forest
dwellers and tribals’ rights on forests. The JPC submitted its unanimous recommendation
report in May 2006. Reflecting the CSD position, it recommended the inclusion of non-
tribal forest dwellers, extending the cut-off date to 2005, and application of the law to
protected areas among other things. Thus the J PC brought in almost all the provisions the
CSD had demanded.

The JPC recommendation again ignited strong protests from conservationists (Bindra,
2006) and elements of the government bureaucracy”, who renewed their efforts to dilute

the recommendations. In response, CSD and other groups supporting the law stepped up

 

42 Even the bureaucrats within the Ministry of Tribal Affairs opposed the major changes recommended by
the IPC, i.e. the cut off dates and the inclusion of non-tribal forest dwellers.

55

their campaign to ensure that the JPC recommendations were accepted. The unanimous
and strong JPC recommendation provided legitimacy to the proposed law and most of the
JPC members became deeply committed to its enactment. Meanwhile pressures to enact
the law increased. On July 18, 2006, more than 80,000 tribals in Maharashtra
demonstrated in front of various government offices in Maharashtra in demonstrations
organized by CPI (M) (People’s Democracy, 2006). Just at the beginning of the Monsoon
session of Parliament in 2006 a dharna (sit-in demonstration) was organized in Delhi by
the CSD and other organizations in support of the JPC recommendations and for the
passing of the law (CSD 2006). All this created pressure on the government and reduced
its flexibility to change the contours of the Bill before its final placement in the
parliament.

CSD organized a month long dharna of tribal and forest dweller representatives in
Delhi in November, and on 29 November 2006 a big rally of over 10,000 tribals and
forest dwellers was held in Delhi (Reuters 2006). On the same day, over 35,000 people
held rallies in the capital cities of Bhubaneswar, Mumbai, Bangalore and Ranchi (CSD,
2006), and other large rallies and demonstrations took place at district and state levels
throughout the country c. g. in Gujarat, Delhi, Orissa (The Hindu, 2006). The main
demand was speedy enactment of the law and acceptance of the JPC recommendations.
On 7th December 2006, the government officially approved presenting of the Bill in
Parliament while accepting most of the JPC’s recommendations. The Bill as finally
accepted by the Government was presented in the Lok Sabha (lower house of Parliament)
on 16’h December 2006 and in the Rajya Sabha (upper house) on 18"1 December 2006 and

was passed by the two houses of Parliament almost unanimously.

56

The RF RA 2006 Enacted

The law finally passed by the Parliament of India is radical in many respects. In its
preamble it accepted that historical injustices had been done to forest dwellers and tribal
in the creation of India’s forest lands, mainly through lack of recognition of rights. It tries
to redress these injustices by providing forest dwelling scheduled tribes and other
traditional forest dwellers twelve types of rights. Among other things these include rights
over occupied private land, rights over forest products (except hunting), rights to protect
and manage community forest reserves, and community tenures for habitat for primitive
tribal groups and other pre-agricultural communities“. The law tries to address gender
concerns by making it clear that the rights shall be recorded in the names of both the
spouses and not only in the name of the male head of household. It also tried to ensure
that powerful interests don’t benefit from the law by restricting the category of forest
dwellers to only those who depend on forests and forest land for bona fide livelihood
needs.

The law empowers and holds responsible the holders of these rights to protect
wildlife, forests and diversity44 as well as adjoining catchments, water sources and other
sensitive ecological resources”, providing statutory backing for community based forest
governance in India for the first time. The rights determination process is to be initiated at
the community level by the Gram Sabha46 (village assembly) and final rights

determination and preparation of a record of rights is to be done by higher-level

 

“’3 Section 3(1), RFRA, 2006
44 Section 5(d) and 5(a), RFRA, 2006
‘5 Section 5(b), RFRA, 2006
46 Section 6(1), RFRA, 2006

57

committees including both government officials and members of elected local self-
govemance institutions“.

The rules for operationalising the RF RA (The Scheduled Tribes and Other Forest
Dwellers (Recognition of Forest Rights) Rules, 2007) were passed in January 2008 and
the law is currently under implementation. The initiative for implementing the law rests
with the central and state governments. By the time of this writing, millions of individual
claims for forest land have been filed under the law in different states and are being
processed”. There has been little evaluation on how effective these claim-filing processes
are, but at least in the areas where grassroots organizations are active, CSD is trying to
ensure that the right procedures are followed”.

On the other hand, the primary focus of the state governments is on settling individual
rights on occupied lands, with little attention being paid to more radical provisions to
facilitate community control of state-owned forest areas. Conservation organizations and
forces representing the forest bureaucracies have also filed court cases in various state-
level High Courts as well as the Supreme Court of India”, asking that the RFRA be
struck down as unconstitutional.

To what extent the law will translate into practice and into effective rights of forest
dwellers over forests is yet to be seen. Post-enactment, the arena of political struggle has

shifted back to the state and grassroots levels, as various state govemments are being

 

47 Section 6(3) to section 6(9), RFRA, 2006

48 See http://www.tribal.nic.in/index1.html. By March 2010, 2.744 million claims had been filed and 0.782
million land titles had been distributed.

49 The CSD has a website where information and feedback about the implementation of the Act is being
maintained. See http://forestrightsact.com/.

50 Court cases were filed against the RFRA in high courts of Orissa, Andhra Pradesh, Madras, Kamataka,
Bombay and Jabalpur as well as in Supreme Court. The petitioners are either retired forest bureaucrats or
conservation organizations. Please see http://forestrLghtsact.com/indepphp/Court-Cases/Court-
Cases/Court-Cases-Against-the-Forest-Rights-Act.htrnI for details about these cases.

58

 

pressed to implement the law. The legislation creates legal spaces for local democratic
participation in establishing property rights and governing forests. This means that an
arena that was the exclusive preserve of bureaucracy and experts has become open to
democratic participation by forest dwellers and their advocates. Their success in using
these spaces for progressive change will depend on local political struggles and collective
actions. In a number of cases, proposed displacement through wildlife protection laws has
been challenged using the law“. In other areas, the forest bureaucracy’s efforts to harvest
or cut forests have been challenged”. Whether these represent a major nationwide
empowerment of forest dwellers is an open question requiring empirical investigation.
CSD continues as a coalition of organizations, even though the intensity of its activities
has diminished. The organizations constituting CSD continue to coordinate and meet on
the issues related to the RF RA and its implementation.

ANALYSIS: THE POLITICS OF MARGINALITY, SCALES AND NETWORKS

The enactment of RF RA is an interesting example of the practice of substantive

democracy and the politics of marginality. Marginalization is almost always linked to
structural conditions in society. Laws, state policies and linked governmental procedures
form critical ingredients of the assemblage that constitute the structural conditions which
create marginalization (Williams et al., 2003). The criminalization of forest dwellers’
main avenues of livelihood is a critical part of what Chatterjee (2004) calls “transgressing

the strict lines of legality in struggling to live and work”. At the same time, a vicious

 

5|In Tamilnadu, local communities have strongly protested against declaration of Mudumalai Sanctuary as
a “critical tiger habitat”, claiming such a declaration is illegal under the RFRA (Masingudi Panchayat,
2008).

52 In the West Bengal hills, forest dwellers organized a blockade of Forest Department timber shipments
out of the area, arguing that under the RF RA the Forest Department no longer has the right to harvest and
export timber without their consent (Sinha, 2008).

59

nexus of local elite, petty officials, legal professionals and touts constitute themselves
into “the shadow state”, which interdicts all benefits flowing down from the welfare state
for the poor, and at the same time seeks to suppress local demands and struggles for
livelihoods and justice (Harriss-White, 2003; Corbridge et al., 2005). Efforts to challenge
conditions leading to marginalization are resisted by these powerful interests.

The brutal evictions of forest dwellers that followed the eviction orders continue even
after the passing of the RFRA”, illustrating the harsh face of the Indian state as
experienced by forest dwellers and tribals. The experience of grassroots movements
challenging marginalization also reflects these power asymmetries and repression. The
struggles for rights at local levels are often brutal and violent as powerful interests are
challenged. The experiences of Adibasi Mukti Sangathan in Dewas district of Madhya
Pradesh illustrate the serious risks faced in such struggles (The Hindu, 2001). Many of
the leaders of various grassroots movements who participated in the campaign for forest
rights have done prison time due to false cases filed against them and most movements
have seen activists killed or incarcerated“. At the same time, the multi-scale nature of the
state apparatus i.e. the spatially nested jurisdictions from the national level to the village
level, and the complex intersections of policies and procedures at different scales ensure
that local mobilizations of the marginalized forest dwellers are confounded by policies
and processes at higher policy making levels. For instance, the legal framework for

governance of forests at the local level are framed by a complex, multi-jurisdictional

 

53 For instance, two tribals were killed in police firing over issue of claiming forest land in Gujarat in
February, 2008. In January, 2008, more than a hundred houses of forest dwellers were burned down or
demolished in Burhanpur district of Madhya Pradesh by the Forest Department. Six persons were injured in
firing by FD personnel.

For examples of recent killings of tribals and forest dwellers trying to protect their lands and resisting
displacement see Padhi and Adve, 2006 (for Kalinganagar), Padel and Das, 2007 (for Kashipur), Bijoy and
Raman, 2003 (for Muthanga).

60

matrix, including national level forest laws (Forest Conservation Act, 1980, Wildlife
Protection Act, 1972), provincial level forest laws, provincial land laws and their
subordinate rules; the various interpretations of these laws by judicial bodies and
procedures at different scales developed for governance framed by this legal
infrastructure. Thus any major change in this complex, dynamic system requires deep
understanding of how this system works, an expertise which is often not available to
those who are at the receiving end of the system.

The ability of the network of the grassroots organizations to ensure the enactment of
RF RA needs to be seen in this context of power asymmetries. The issue of non-
settlement of rights on forest land and exclusion from forests has long been one of the
issues of struggle for many grassroots organizations. The increasing emphasis on
conservation and exclusion after the Forest Conservation Act (FCA) 198055 increased the
tensions on the ground, which came to a boil with the 2002 eviction orders. One
immediate result of the evictions and the resultant violations of human and livelihood
rights was that forest rights came to be a central issue for all formations and movements
working in forested areas.

The extreme inequity and poverty in India has led to emergence of numerous local
mobilizations, movements and organizations struggling for the rights of the poor. Many
such as Kashtakari Sangathan (Maharastra), Adibasi Mukti Sangathan (Madhya Pradesh)
and National F ortun of Forest Peoples and Forest Workers (NFFPFW) have been

struggling with the issues of forest and land rights and empowerment of the poor for

 

55 The Forest Conservation Act, 1980, proscribed diversion of any land categorized as legal forests to non-
forestry purpose without the permission of the Central Govemment’s Ministry of Environment and Forest
(MOEF).

61

decades. Others such as Narmada Bachao Andolan (NBA) emerged in response to the
large-scale displacement and dispossession by development projects. Some of these
grassroots organisations had collaborated in the l990s to push for the enactment of the
Panchayats (Extension to Scheduled Areas) Act, 199656, and were part of overlapping
networks. It was through the efforts of these organizations that the CSD was formed as a
national level forum in 2002-2003.

CSD is a loose coalition of national federations and state level organizations or
federations of tribals and forest dwellers. Some of the initial members57 of CSD had been
working together and were part of the National Front for Tribal Self Rule (NF TSR).
During a public hearing on forest land and evictions in Delhi in 2003, it was decided to
create a broader coalition on forest evictions and rights issues (Asher and Agarwal,
2005). State level federations of organizations working for rights of tribals and forest
dwellers from Madhya Pradesh”, Gujarat”, Andhra Pradesh“), Maharashtra and
Rajasthan"2 became a part of the initial group. In June 2003, an email-listserv called
F orestrights was initiated to co-ordinate and share information.

The CSD network expanded as more and more grassroots groups and activists
working in Orissa, Northeast India, Chhattisgarh and other areas were drawn into the
issue. For instance, in 2004, 64 organizations in Orissa assembled and decided to create a

state-level committee to struggle for forest rights in coordination with CSD (Personal

 

56 This law provided for autonomy for local self-govemance in Schedule V areas. It recognizes the
traditional practices and customary laws and tries to empower people in the tribal areas (Pal, 2000).

57 These included organizations like the Bharat Jan Andolan, Kashtakari Sangathan (Maharastra), Adibasi
Mukti Sangathan (Madhya Pradesh) etc. that have a long history of fighting for tribal rights on land and
forests. The NFTSR was formed in 1993 to push for tribal self-rule.

58 Jan Sangarsh Morcha (Translated as People’s Struggle Front)

59 Adibasi Mahasabha (Tribal Assembly)

60Adivasi Aikya Vedikarn (Tribal Assembly)

62 Jangal Jameen Jan Andolan (Forest Land and People’s Movement)

62

 

Communication, Jagadish Pradhan, 2004). The F orestrights listserv, through word of
mouth and forwarded emails, also attracted a number of intellectuals and scholar activists
interested in the issue. The open-ended nature of the coalition ensured that it expanded
over time with new members joining all the time. Unlike many funded NGO-led
mobilizations on issues of rights. the C SD primarily depended on internal resources,
often generated directly from forest dwellers and tribals“. People provided their labor or
expertise to CSD on a voluntary basis. By 2005, the C SD had stabilized as a national
network. The structure of the CSD remained loose and flexible (Figure 1).

Figure 2: Networked structure of the Campaign for Survival and Dignity"4

 

[Networked structure of NCSD j
/
/ \
/ Other

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

\X
Forestrights national level CSD Central President! \\
Listserve ”EMOFKS Meetings
, v. . ______________ . Secretary \
.‘ I‘. :---..-,-_: \
/ ‘. ___,'---"' .r' Fulltimevolunteers \
lndtVIdualsl ,.--.--'=:" I u. l
n- ' . ‘. ' . ‘.
researchers ' g : .I 5 '
. . ~. -, 3 , a . j
\‘ . ‘ . ‘ y i . /
\ ‘. ~ State level .'
~. Federations ' ‘ ' ' " ' r ------ ., ________ “ Media
\\ “ ‘ ,' - ~ - -
\\ ; ; Political parties
\.._\ : ,r and politicians
\ \\ ‘4 W [I /
\\ ‘4 {C .
\\ Forest dwellers //
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organisations!
movements

 

 

 

 

63 The grassroots organizations raised money through contributions by forest dwellers. This also helped in
increasing grassroots support and a feeling of ownership over the campaign.

The Secretary of CSD was a full time volunteer. Other full time volunteers worked at both national and
state levels. The forestrights list serve membership (shown by the ellipse) included almost all the key actors
in CSD, though some of the important constituents/actors such as grassroots workers, sympathetic media
members and political activists were not linked to the list serve. We have shown these categories partly
outside the ellipse of the forestrights list serve.

63

Over time, a loose core of activists who were providing much of their time to CSD
activities emerged at different scales. C SD has only two full-time volunteer workers at
the national level, both on loan from one of the founding organizations. The various state-
level and local constituents had their own part time volunteers who were often part of the
various grassroots organizations and federations constituting CSD. CSD also attracted
sympathetic intellectuals, academics, and lawyers to develop a strong capacity for
deliberation and analysis.

Larger decision making in this coalition was carried out through processes of
collective deliberation. National level strategies were decided in meetings held once
every few months where representatives from various states would come together. The
meetings were deliberative and democratic. National level strategies and stances on major
issues were decided in these meetings. Given the diversity of interests and priorities of
various formations and organizations represented in C SD, extensive debates took place.
A major concern within the CSD was the fear of elite capture of rights over forests,
especially by powerful non-tribals, and the need to provide safeguards in the law.

At the state level, situations differed from state to state. In Orissa, a local chapter of
C SD was formed which used deliberation to determine local strategies and to take
forward the strategies decided at the national level. In other states, already existing
federations and networks of local organizations took up the issues. These state—level
groups deliberated over issues emerging from their states, and served to share and
validate the stance and strategies being developed by CSD at the national level. Feedback
from states would go to the national level during the national meetings or through

correspondence or phone conversations. Similar deliberative platforms developed in

64

some of the districts within states, primarily in areas where grassroots mobilizations were
active.

Communications at the national level were maintained primarily through the Internet
and phone. The F orestrighrs listserv acted as an instant conduit which shared the major
news and happenings and allowed information to move fast from the national scale to the
states and vice versa. State-level activists would ensure that important messages moved
out through phone calls, letters and meetings to the grassroots through the existing
networks and linkages of the various organizations. In meetings at local levels, large
numbers of forest dwellers would turn up. Given its core constituency of grassroots
organizations that expanded over time, CSD had a strong capacity to mobilize support at
the grassroots level in different locations.

The tendency at all scales was to be inclusive and open ended, allowing actors to
come in and drop out, while maintaining core continuity through certain organizations
and individuals. The strength of this loose model came from unstated assumptions of
democratic deliberation and inclusion, which provided space at various scales for
different voices and opinions and allowed strategies to emerge. The embeddedness of the
grassroots organizations at local levels allowed the CSD to validate its deliberations and
decisions through feedback from local levels. At the same time it allowed diverse ground
level concerns to be accounted for at higher scales. Thus CSD became a powerful mode
for the forest dwellers to express their agencies at higher scales.

Discourses of Legitimacy and Justice
Many strands of discourse came together to form a powerful and evocative master

frame of historical injustices and exclusions in the construction of India’s legal forests.

65

The environmental history literature, exemplified by Guha’s famous work on the
Kumaon forests (Guha, 1989) had provided detailed historiographies of the colonial
construction of legal forests and resultant exclusion of forest dwellers. This supplemented
the narrative of tribal dispossession that emerged through work of scholars such Verrier
Elwin (1963), BK RoyBurman (GOI, 1986)“, Walter Femandes (1987, 1988), and
scholar-activists such as Mahasweta Devi and BD Sharma (GOI, 1990). The grassroots
movements with forest dwellers were another source of narratives providing actual
examples and experiences of exclusion often articulated as undemocratic denial of justice
to vulnerable people. First hand narratives by forest dwellers themselves provided the
most touching and powerful stories. At the same time, specific local level research,
carried out in cooperation with the forest dwellers’ organizations, contextualized these
narratives in data and analysis of forest construction in the post-independence period and
the unfinished business of forest land reforms (Sarin, 2003; Garg, 2005; Kumar et al.,
2005).

The 2002 eviction orders and the resultant protests served to bring all these narratives
into a single frame through the CSD. The Jan Sunwai (public hearing) in July 2003
brought together forest dwellers from across the country and led to sharing of experiences
of exclusion. These were collected in a book called “Endangered Symbiosis” (CSD,
2003). Scholar-activists associated with CSD analyzed the government’s own data to how
the legal status of large areas of forest was disputed (Sarin, 2003; Sarin, 2005a; Kumar,

2004). Data and analysis were put together and shared with the media and key political

 

65 RoyBurman specifically examined the issues of land tenure related to tribals, and also chaired the
committee that wrote the important Planning Commission Report on “Land tenure in Tribal Areas” (GOI,
I986).

66

protagonists. Discourses ranging from “tribals living in harmony with nature” to
“constitutional protection for tribal lands” and “tribal heritage” were drawn upon to
highlight the injustice caused by exclusion of tribals and forest dwellers. To counter the
narrative of powerful interests being able to co-opt the proposed law to obtain access and
control forests, the coalition discussed and proposed a number of safeguards to ensure

that elite capture could be forestalled.

This emergent frame was added to and elaborated as new grassroots organizations
and movements joined in from various parts of the country. In 2003 this was primarily a
frame which demanded rights for forest dwellers on forest land that they occupied for
permanent cultivation (see CSD, 2003), arising mainly from the experiences of forest
dwellers in Maharashtra and Madhya Pradesh. It morphed into a larger frame inclusive of
claims of over ancestral shifting cultivation lands“, community tenure and rights over
forests“, rights to habitat and habitation68 , in other words a reconfiguration of Indian
forest governance itself. Not only was a coherent and powerful narrative created through
this framing, but it was also disseminated effectively through the media and through
discussions and presentations (Sarin, 2003; Sarin, 2005; Prabhu, 2005; Gopalakrishnan,
2005). The ability to reach across scales and spaces was used to bring together a large
number of stories and real life incidents from around the country to create powerful

narratives of exclusion and injustice.

 

66 Inputs for shifting cultivation came from North East India as well as from Orissa, both areas where non-
recognition of shifting cultivation in legal forests has led to exclusion (See Kumar, 2005).

67 The demand for community tenure was brought to the fore by the experience of Orissa’s and
Jharkhand‘s forest dwellers, where large areas of state forests are being protected by local communities.
These community conservation efforts were held up as examples of the positive linkages between
livelihoods and forest conservation, and the ability of forest dweller communities to protect forests.

68 Rights to habitat and habitation were a result of input from states and grassroots movements from areas
where vulnerable hunter gather groups and shifting cultivators are present.

67

Politics of Mass Mobilization

A mass base amongst forest dwellers has been the central strength of the grassroots

mobilizations and it was evoked frequently to highlight the authenticity of the campaign

and its grassroots base across the country. The networked structure of CSD allowed it to

give calls for mass demonstration and rallies of forest dwellers and tribals at different

scales including in the national capital, state capitals, district seats and local towns. This

was used to get the messages of the campaign across to the political representatives,

government and the media. A number of mass mobilization programs at strategic

moments pushed along the process of enactment and tabling of the bill. Some of the

major programs are listed in Table 2.

Table 2.1 A sample of CSD demonstrations

 

 

 

 

Dates Program Remarks
8-9“1 August Public Rallies in five districts of Gujarat. Over To pressurize for resolving the
2004 10,000 people, mostly tribals attended forest rights situation

(F orestrights listserv, 2004)
7th -215‘ Dharna (sit-in) in N. Delhi by tribals and forest To press for the introduction of the
March 2005 dwellers 41 member of Parliament visited the Bill on RFRA

dharna site to express solidarity (CSD, 2005)
15‘“ August Protests held at different places across the During the Monsoon Session to
2005 country on independence day. Approximately press for introduction of Bill

150,000 tribals and forest dwellers in
coordinated protests with the slogan “Justice or
Imprisonment” (“Forest Dwellers”, 2005, CSD
2005)

 

15‘h Nov-30‘”

Nationwide Jail Bharo Andolan (Fill the

During the winter session of

 

 

 

Dec 2005 prisons movement). 75,000 people courted parliament to press for introduction
arrest in 10 states (CSD 2005) of Bill

21“- 250‘ Aug., Dhama in Delhi to press for acceptance of J PC Beginning of Monsoon session of

2006 recommendations and passing the RF RA. Parliament. The issue of RF RA
Unprecedented cross party support. (CSD, 2006 raised by MPs cutting across party
August) lines in Parliament

215‘ Nov 2006 Continuous dhama in Delhi for enactment of Winter session of Parliament. The
RF RA and acceptance of JPC RF RA finally passed

 

recommendations. During this period large
demonstrations were carried out in various
capital cities (CSD, 2006 NOL

 

 

68

 

These events created solidarity and shared identity amongst forest dwellers and tribals
on the issue of forest rights. In most local mass events, forest dwellers raised resources
locally to meet the costs of the events — with contributions in cash and kind. These events
thus demonstrated to the politicians and the government that CSD was backed by large-

scale grassroots mobilization, and was therefore a suitable partner for engagement.

CSD constituents also used the local grassroots mobilizations to pressure the
members of Parliament representing tribal and forested constituencies. Pressures were
also created at the state-level legislative assemblies. For instance, the Orissa Legislative
Assembly passed a unanimous resolution demanding passage of the RFRA and sent it to
the central governmentbg. The C SD and its constituents strategically combined mass
mobilization with constant contact and discussion with Members of Parliament,
familiarizing them with the complex issues related to forest rights. MPs were also invited
to the mass dharnas in Delhi and many of them turned up and made public their
commitments for passing the law.

The show of strength through the politics of mass mobilization generated acceptance
of CSD among political formations and parties. All political parties across the spectrum
were supportive of the demands for forest rights, primarily because none of them wanted
to be seen as anti—tribal and anti-poor. The left parties that were a part of the ruling
coalition strongly supported the law’s passage and CPI(M), a major partner in the ruling
coalition, took up RF RA as a core agenda with the government. C SD interacted

constantly with these parties at different levels and their support was vital in pushing the

 

69 This was made possible through the pressure created by the Orissa chapter of the C SD. which pressed
the state legislature to pass a resolution on these lines.

69

government to pass the law. These political formations adopted (1 the frames and
narratives of CSD to a large extent.
CONCLUSION

The enactment of RF RA illustrates practice of substantive democracy in India and
provides insight into how Indian democracy could possibly become more inclusive of
marginalized people. It provides an instance where marginalized “subjects” and their
organizations, through non-electoral mobilization and strategic moves, could set the
frame for creating a new law favoring the marginalized forest dwellers. The campaign for
the RF RA served to temporarily short circuit the State’s power dynamics and led to an
outcome favorable to marginalized forest dwellers and tribals, thus providing an
illustration of how the paradox of inclusion of the marginalised in democracies (Young,
2002) can be addressed.

A favourable opportunity for the enactment of the law was provided by the larger
mathematics of coalition based electoral democracy, wherein tribal votes had become
significant in certain critical swing areas. The increasing powerful left insurgency in
forested areas of India was another consideration for the government in agreeing to enact
the law. The larger political situation provided opportunitiy structures (Tarrow, 1994)
which framed the the mobilisation of the marginalised sections and its relative success in
obtaining concessions from the state.

In this politically favourable terrain, it was CSD that largely set the agenda for the
law’s enactment and mobilisation of resources. The emergence of CSD exemplifies the
Keck and Sikkink’s (1998) concept of campaign, where diverse actors come together

through a common agenda and shared systems of beliefs to work towards a common

70

goal.The campaign for the RF RA was an emergent, networked coalition of diverse actors
and entities, held together by a common and evolving agenda of social justice. It operated
at different spatial scales, was flexible in its strategies and was successful in challenging
the prevailing hegemonic discourse and replacing it in the political imagination by
alternate discourse of justice and rights. It was also able to leverage the ability to
communicate through Internet for a flexible, consultative yet rapid decision making,
allowing it to be proactive in a fast-moving and changing situation.

That this could be done in a situation where forest dwellers and their struggles are
marginalized and face strong repression indicates the possibilities of the politics of
networked social movements of the marginalized and their ability to move across scales
and create favourable outcomes. Even though the conditions and mobilizations that led to
the enactment of the RFRA remain unique and context specific, the process offers certain
lessons for struggles of the marginalized. The key ingredients in this achievement are the
capabilities of mass mobilization at the grassroots, open and flexible networks with
certain core constituents, and ability to generate and circulate discourses of justice and
rights of the poor. These allowed struggles of marginalized sections to have an agency
and a voice in creation of a national law, in the face of opposition from a section of the
elites and bureaucracy. Thus the struggle for RF RA illustrates the empowerment

possibilities of such networked movements and campaigns.

7]

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78

CHAPTER III

INDIA’S JOINT FOREST MANAGEMENT AND THE
RECOGNITION OF FOREST RIGHTS ACT, 2006: TOP-DOWN
DECENTRALIZATION VS. BOTTOM-UP DEMOCRACY

Abstract
There is consensus in the literature and widespread policymaker support on the
desirability of democratic decentralization of forest govemance. However, the many
decentralisation initiatives in developing countries rarely have led to more democratic
forest governance. We discuss India’s recently enacted Recognition of Forest Rights Act
(RFRA), 2006, as a case of demand driven democratization, drawing a sharp contrast to
the existing, top-down, Joint Forest Management (JFM) program. Using the criteria of
delegation of power and authority, downward accountability, and impact on forest
dependent poor, we show that JFM Management cannot be characterized as democratic
decentralization. In contrast, the framework of the RFRA, enacted as a result of
democratic grassroots mobilisation, provides greater space for meaningful democratic
participation in forest governance. We conclude that RFRA has the potential to make
Indian forest governance more democratic, participatory and pro-poor.
INTRODUCTION

Decentralisation and citizens’ participation have emerged as core strategies to
achieve sustainable and just natural resources governance. More than 80 percent of
countries have adopted some form of decentralization (Manor,1999). However, the
results are mixed, with little evidence that the objectives of sustainable and just resource
governance are being met. Most decentralization efforts have been top-down processes

limited to transferring some authority to upwardly accountable local governance

79

institutions. In forestry, such decentralization efforts have taken the form of co-
management and several studies indicate limited democratization of forest governance
(Colfer and Capistrano, 2005; Ribot et al., 2006, Edmunds and Wollenberg, 2003).

In contrast to top-down decentralization, sometimes governments are forced to
devolve authority and rights to resource dependent citizens in the face of political
demands and mobilizations. In this paper, we contrast top-down decentralisation to a case
of demand-driven forest reforms and show how the latter can lead to more democratic
forest governance. We do this by examining forest governance in India, which offers an
opportunity to contrast the state-initiated Joint Forest Management (JFM) program to
forest reforms won through political mobilization by citizens in the recent Recognition of
Forest Rights Act, 2006 (RFRA).

Using criteria of devolution of power and authority, downward accountability to
citizens and inclusion of marginalized forest dependent poor, we compare JFM and
RFRA from the perspective of democratization. We find that demand-driven political
mobilization can usher in more democratic decentralization and reforms that can
overcome the shortcomings associated with current forms of decentralization in forest
governance.

DECENTRALIZATION, DEMOCRATIZATION AND FOREST
GOVERNANCE

There are strong arguments regarding the shortcomings of centralized forest
governance and the relative advantages of decentralization and citizens’ participation. For
example, research on the commons demonstrates the capacity for decentralized
community based management systems (Ostrom et al., 2002). Theories of complex socio-

ecological systems also provide support for effectiveness of community based natural

80

resource governance in its capacity to adapt and promote shared experimentation and
learning (F olke et al., 2005). Strong support for decentralization is also embodied in the
principle of subsidiarity: that decision making, implementation, monitoring, enforcement
and judicial recourse are best conducted at the lowest practicable level of government
(Degrassi, 2003).

Political arguments for greater democracy and democratization reinforce these
pragmatic arguments. Citizens’ control over their collective affairs and equality among
citizens in exercising that control are core values of democracy (Beetham, 1999).
Principles of democracy imply that people dependent on natural resources such as forests
for their subsistence should have a substantial say in decisions regarding governance of
such resources (Agrawal and Ribot, 1999). Ribot (2002) uses the term democratic
decentralization to mean local governance that is representative of and accountable to
local populations and secures autonomous domains of decision making at local levels.
Democratic decentralization is characterized by principles of accountability to citizens,
representativeness, voice, secure rights and authority to local democratic institutions.

However, most decentralization initiatives for forest governance in the last two
decades cannot be categorized as democratic (Ribot, 2002; Colfer and Capistrano, 2005).
They remain limited to deconcentration, i.e. delegating functions to lower levels of
bureaucracy that remain upwardly accountable, or even privatization, where certain
government functions are allocated to the private sector or NGOs. Citizen participation in
forest governance remains absent or very limited.

Policy discourses of decentralisation and participatory development are criticised for

failing to account for issues of power and politics and for trying to depoliticise what is an

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explicitly political process (Hickey and Mohan, 2004). They fail to engage with existing
structural inequities, power asymmetries and marginalisation processes that disempower
local resource users vis-a-vis more powerful actors including the state and its
bureaucratic apparatus. In decentralised forest governance, failure to engage with the
issues of power and politics is critically important, as state forests were often created
through violence and takeovers that excluded and marginalised forest dependent
populations (Vandergeest and Peluso, 1995; Gadgil and Guha, 1992). Ignoring forested
landscapes’ histories of injustices and appropriations often aggravates conflicts and
marginalisation of forest dwellers. In most post-colonial countries, forest governance
continues to be kept out of the arena of democratic politics, confined to the realm of
techno-managerial rationality and administrative controls. The political economy of
forest governance revolves around extraction of forest resources facilitated by centralised
controls, creating a confluence of powerful forces including professional forest
bureaucracies that may resist efforts to devolve powers to politically forest dependent
communities.

The question then arises: why do states pursue decentralisation and seek citizen
participation in forest governance when, as Agrawal (2001) points out, voluntary
relinquishment of power seems to fly in the face of expected State behaviour?
Explanations include the prevailing discourses of participation, civil society and
democratisation that international donors have set as conditions of funding and support
since the 19805. An instrumental rationale also seems to be the difficulty of regulating
spatially vast forests without the cooperation of local communities (Peluso, 1992;

Sivaramakrishnan, 1999). Co-opting local communities to regulate and protect forests can

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be cost-effective for the forest bureaucracy. Pursuing participation and decentralisation
can also lend legitimacy to state forest bureaucracies in the face of internal demands for
democracy, and help defuse tensions and conflicts that exclusionary forest governance
creates on the ground.

Top-down decentralisation initiatives contrast with political demands from below for
control and access to forests and forest resources. Forest dwellers’ demands for greater
forest access and rights are often couched in discourses of democratic rights (F orsyth
2004) and bound with claims to citizenship and democracy. Social and political
movements asserting claims over natural resources use the language of rights and
entitlement rather than efficiency or equity. They privilege local relationships with nature
over demands of a developmental state (Baviskar, 1995; Prabhu, 2005). Members of
these social movements critique and oppose the state’s decentralization efforts as
extending state control over local lives and livelihoods rather than empowering local
people (Baviskar, 1995; Sundar, 2000).

Occasionally, such assertions from below have forced governments to concede
greater role in governance. Decentralization won through political contestation by
resource users may lead to institutional forms and processes that are different and provide
more democratic spaces than those created through top-down decentralization. As
Agrawal (2001) points out, local actor demand may not be needed to initiate
decentralization, but it may be necessary to bring about real political change.

The recent enactment of a progressive forest law in India providing rights to forest
dwellers is an example of forest governance reforms materializing due to demands from

below. The Recognition of Forest Rights Act, 2006 (RFRA) was the outcome of a

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nationwide mobilization of forest dwellers supported by a coalition of civil society
groups demanding rights over forests and forest land. The RFRA accepts that creation of
state forests in India led to historical injustices on forest dwellers, and tries to redress the
situation by recognising individual and community rights of forest dwellers on forests
and forest lands. Thus RF RA represents a political, demand-based effort to reform forest
governance through provision of rights to forest dependent people. Implementation of
this law began in January 2008.

India continues to operate the Joint Forest Management (J F M) programme, an
example of top-down, state initiated decentralisation. Since the early 19905 J FM has
sought community participation in forest protection and management. It covers almost 22
million ha. of forest lands and more than 100,000 communities. JFM represents a top
down re-territorialisation of state owned forests by allocating certain forest areas to
selected communities and seeks to decentralize some functions of protection and
management to local communities.

These two parallel processes of forest reform being carried out in the same
landscapes provide a unique opportunity to examine the differences in extent of
democratization between a top-down, supply-driven decentralization program and a
bottom-up, demand-driven reform. Several criteria can be utilized to assess the extent of
democratization (Ribot, 2002, Crook and Manor,1998, Colfer and Capistrano, 2005). We
examine the following:

° Delegation of power and authority: Transfer of authority to local institutions

includes power to make, execute and enforce rules (Ribot, 2002).

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° Downward accountability: Accountability of forest governance institutions to
citizens allows transparency and citizens’ democratic control (ibid.).

- Impact onforest-dependent poor: Mechanisms that ensure inclusion of
marginalized sections of society are important since local communities are often
inegalitarian, hierarchical and dominated by elites,who can easily capture resources at the
expense of the poor (Crook and Manor, 1998, Edmunds and Wollenberg, 2003).

We examine JFM and RFRA on these criteria to understand the substantively
different spaces that they open for democratic forest governance. We use both secondary
and primary data on the outcomes of JFM. For RFRA, since its implementation began
only in January, 2008, there is little data on its outcomes. We draw on the latest reports
about its implementation on the ground to examine its provisions to make inferences

about its democratic potential.

GENEALOGY OF FOREST GOVERNANCE IN INDIA: AN
EXCLUSIONARY LEGACY

To contextualise JFM and RF RA, we briefly discuss the history of India’s forest
governance, including the processes of exclusion and marginalisation of forest dwellers.
One quarter of India’s land area is legally categorized as forest (FSI, 2005). Hundreds of
millions of people live in and close to these forests and are often highly dependent on
forest resources for their survival. The categorisation of a quarter of India’s land area into
legal forests, or what Peluso and Vandergeest (2001) call political forests, was carried out
using forest and land laws during the 19th and 20th centuries (Gadgil and Guha, 1992;
Rangarajan, 1996; Sivaramakrishnan, 1999). The colonial forestry system brought vast

areas of forested landscape under its direct administrative control and systematically

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redefined social interactions with forests, privileging colonial commercial interests over
subsistence uses. Centralized bureaucracies called Forest Departments (FDs) were
established on paramilitary principles to manage and control legal forests.

Overlapping discourses of conservation-oriented dessicationism70 (Grove, 1995),
public interest (Jewitt, 2006), progress and revenue generation (Guha, 1990) were used to
justify the colonial state’s takeover of forested areas and exclusion of local users.
Colonial forestry was framed as modern and scientific, forest dependent rural populations
were depicted as destroyers of forests, and most subsistence forest use was criminalized
(Jewitt, 2005). Practices like shifting cultivation were made illegal. Colonial forest laws
such as the Indian Forest Act, 1865 and Madras Forest Act, 1882, provided the
instruments of control and coercion for this disciplining. The result was large-scale
exclusion and marginalisation of local populations, and conflicts and contestations that
still persist in forested areas (Guha, 1990; Gadgil and Guha, 1992; Sivaramakrishnan,
1999).

Even after independence, the Indian State retained the exclusionary colonial forest
governance framework. Creation of legal forests based on colonial forest laws continued
apace, increasing to 67 million hectares from 41 million hectares at independence
(Saxena, 1997). Until the 19705, forest conservation was not a high priority in India’s
developmental polity and forest exploitation for industrial demand and revenue
generation remained paramount. Large areas of “mixed and unproductive forests” were

felled and converted into industrial or timber plantation (Saxena, 1997). The 1952 Forest

 

70 Dessicationism emerged as an eighteenth century belief that droughts and soil erosion were closely
connected with depletion of tree cover; thus failure to conserve forests was to invite disaster (Grove, 1995;
Skaria, 1999).

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Policy invoked the national interest to specifically discount local forest dependent
people’s needs and demands from forests (G01, 1952).

In the 19705, deforestation and forest degradation became important environmental
issues (Rangarajan, 2001). The government responded by further centralising forest
governance, passing two important laws, the Wildlife Protection Act (WLPA), 19727'
and the Forest Conservation Act (FCA), 1980, both of which expanded the forest
bureaucracy’s power without creating any space for people’s participation. The
centralising trend was further strengthened by the Supreme Court of India’s strict and
literal interpretation of forest laws, especially the FCA, 1980 (Rosencranz and Lele,
2008). This further concentrated forest governance, empowering the forest bureaucracy
vis-a—vis other arms of the govemment and the forest dependent people. The increasing
centralisation had important consequences for the millions of forest dwellers who lived
on or cultivated lands categorised as legal forests, increasing their vulnerability to
eviction and creating new conflicts.

Despite the increase in India’s legal forest area after independence, actual forest
cover has declined dramatically. The bureaucracy’s inability to effectively regulate vast
forests with millions of inhabitants partly explains forest degradation (Carney and
Farrington, 1998). The percolation of democratic practices and discourses at local levels
has led to increasing contradictions and conflicts with the exclusionary forest governance
framework. This led to realisation of the need to find a role for local people in forest
management. A new forest policy issued in 1988 acknowledged local needs and

dependence on forests and encouraged people’s participation in forest governance. In the

 

7' See Rangarajan (2001) for the background of the enactment of WLPA I972.

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early 19905, JFM became the government’s flagship strategy to address the
contradictions between increasing centralization and the acknowledged need for local
participation.

TOP-DOWN DECENTRALIZATION: JOINT FOREST MANAGEMENT

J F M started as an experiment by forest officers in West Bengal to involve
communities in protecting state-owned degraded forests in return for certain concessions.
Their success led the Government of India to adopt this approach in 1990 (G01, 1990),
and state-level F Ds gradually adopted it. JFM envisages a partnership between forest
dependent communities and the state-level FDs to protect state-owned forests. The World
Bank and other international donors supported JFM as a means for forest protection and
improving local livelihoods (Kumar, 2000).

J FM represented a major break from exclusionary forest governance in its emphasis
on community participation in forest governance. State F Ds implement the program,
recruiting local communities for forest protection in exchange for access to forest
products including a share of the timber harvest and investments in village development.
Community institutions called JFM Committees are created with general bodies of all
eligible voters in the community and executive committees elected from the general
bodies. A memorandum of understanding (MOU) between the community institutions
and the FD spells out the community’s responsibilities and the various benefits it will
receive.

Officially the program is a success with almost 22 million hectares of forest enrolled
and participation of over 100,000 communities through 2008 (G01, 2008). The actual

ground level situation is much more ambiguous with little evidence that these numbers

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reflect actual forest protection and regeneration or effective community participation.
Springate-Baginski and Blaikie (2007) estimate that only 50-70% of JP M committees are
active. They also point out that activity is closely linked to the disbursal of funds, with
many groups becoming inactive after funding stops. JFM’s outcomes from the
perspective of democratic decentralisation are diverse nationwide, but a broad critique is
as below.

Delegation of Power and Authority

The colonial era Indian Forest Act, 1927 continues as the legal framework for J FM
(Sundar et al., 2002). All legal powers remain with the FD (Springate-Baginski and
Blaikie, 2007). The lack of legal rights for communities participating in JFM affects all
aspects of its implementation.

The major decision making power and authority in JFM rest with the FD and the
communities have only the duty of protection (Ravindranath and Sudha, 2004). In most
states, FD personnel occupy the most important position in the village level JFM
committees. The village institutions depend on the forest officials for legal support for
regulating forest use and the MOU signed with the FD has no legal validity (Springate-
Baginski and Blaikie, 2007). Although forest management micro-plans that form a part of
the MOU are to be prepared in consultation with the community, they are subservient to
the FD’s large scale Working Plans72 (Sundar, 2000). Often the FD unilaterally prepares
the micro-plans with little consultation with the communities. As a result, the FD’s
priorities tend to dominate forest management. Springate—Baginski and Blaikie (2007)

point out that this may have the perverse effect of replacing biodiverse mixed forests

 

72 Working Plans are the Forest Department’s 10-20 year forest management plans. The central
government approves these semi-legal documents and any deviation has to be justified.

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providing multiple livelihood benefits with monocultures of valuable timber species. The

funds for micro-plans are channelled through the FD, which has a veto on how they are

used. Sometimes villagers complain of haying to give a cut to the forest personnel for

getting the J FM funds released (Sundar et al., 2002). The lack of delegation of power and

authority means that the communities in general become subservient to the FD.
Accountability

At the community level, the FD initiates or approves major decisions related to forest
protection and management. FD officials convene and preside over both General and
Executive Committee meetings, and major decisions involving community members
relate only to suggestions about entry point activities for village development and
selection of people for forest patrolling. The FD takes all major decisions regarding use
of funds, silvicultural and harvesting operations etc. without consulting villagers
(Banerjee, 2007).

In most states the FD can unilaterally dissolve a committee whose performance it
does not like. As the executive committee’s powers come from the FD’s backing, it need
not have much accountability to community members, creating spaces for elite capture.
The FD operates on paramilitary lines with upward accountability and JFM committes
become the lowest cog in this hierarchy. Marketing of timber and other valuable products
from forests under JFM is under the F D’s non-accountable control (Springate-Baginski
and Blaikie, 2007). In Orissa, the FD has leased forests protected under I FM to paper
mills for harvesting without consulting villagers (Sarin et al., 2003). Elsewhere, forest
land under JFM has been diverted for mining and industrial projects without

compensation to communities. Lack of financial transparency is another key issue of

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accountability. Villagers generally are not aware of the funds allocated to their village
and its uses, even though communities are supposed to jointly control these funds (Sarin
et al., 2003).

The rules framing local institutions’ creation, jurisdictions and boundaries provide an
excellent example of the lack of delegation of authority and lack of accountability in
JFM. The FD has the sole discretionary power to select the communities and allocate
forest areas for JF M. This power means that they can pick and chose communities,
creating different forms of moral hazard. Targets, limited funds, and limited forest area
mean that only a few communities are selected for JFM and the development funds it
brings (Sundar, 2000). FDs have often used JFM to reassert control over forests and lands
that had slipped out of their control or were disputed (Sarin et al., 2003). The allocation
of forest area to one particular community under J FM means that many others who use
that forest area and could possibly lay claim to it may be excluded (Sundar et al., 2002).

Impact on Forest Dependent Poor

With their primary objective of protecting state forests, FD personnel have no
obligation to account for the interests of marginalized forest users. When the FD provides
legal backing to JFM committees dominated by local elites, politically weak local forest
users may be excluded from forest access and use (Sarin et al., 2003, Springate-Baginski
and Blaikie, 2007). Decentralization in a political environment characterized by clientage
has the consequence of strengthening patronage ties and further entrenching local elites
(Francis and James, 2002). Elite dominance and resource capture have been reported in
almost all studies of JFM and negative impacts on the poor have been widely documented

(FPP, 2005; Kumar, 2002; Brahmane and Panda, 2000; Vasundhara, 2006). JFM has

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often been used to carry out forestry plantations on forest land cultivated and claimed by
poor tribal and other forest dwellers (Kumar et al., 2005). In Andhra Pradesh, the FD has
used the JFM committees to evict vulnerable tribal shifting cultivators from 37,000 ha. of
forest land (FPP, 2005; Springate-Baginski and Blaikie, 2007).
Summing up JFM

J FM is critiqued by many authors as an attempt by the forest bureaucracy to
reinforce its control of forested landscapes by engaging local communities as hired labour
to monitor local use of the landscapes (Sarin et al., 2003). FD efforts to control the self-
initiated community forest management groups in Orissa and the longstanding Vana
Panchayats in the state of Uttaranchal reinforce the belief that JFM is primarily a program
to extend and reassert state control (ibid.). An independent evaluation of a World Bank-
funded J FM project in Andhra Pradesh commented that a decade of JFM has helped the
FD consolidate its grip on forest resources and penetrate the heart of village decision
making and resource politics (FPP, 2005). JF M is seen as reducing defacto and dejure
local spaces for democratic forest governance as the program overlooks or actively co-
opts the existing tenurial and rights systems and pre-existing arrangements for
community forest management (Sarin et al., 2003). Springate-Baginski and Blaikie
(2007) conclude in their exhaustive comparative study that JFM has not led to democratic
decentralisation of resource management. Empirical studies included in Edmunds and
Wollenberg (2003) and Sundar et al. (2002) reached similar conclusions. JFM also fails
to address major issues of forest and forest land tenure, even though it re-territorializes

forested landscapes by allocating forests to certain communities for protection.

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RECOGNITION OF FOREST RIGHTS ACT, 2006

The conversion of a quarter of India’s land area into legal forests using colonial era
forest laws left tens of millions of people living on and or cultivating forest lands without
rights. Faulty categorisation of land as legal forests in conjunction with the Forest
Conservation Act, 1980 created a situation in which millions of forest dwellers were
wrongly treated as “encroachers” on forest lands, because their rights were never
properly settled (Garg, 2005; Kumar et al., 2005; Ghosh, 2007). This became a major
political concern in 2002 after the Govemment of India, following the Supreme Court’s
directions, tried to evict millions of people inhabiting or cultivating legal forests. The
resultant human rights violations led to a nationwide movement by a coalition of forest
dwellers, grassroots organisations NGOs, academics, lawyers and independent activists
called the National Campaign for Survival and Dignity (NCSD). The mobilisation
demanded the creation of a new national forestry law to settle forest dwellers’ rights.
Some political parties supported the movement as well. It eventually led to the enactment
of the new Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of
Forest Rights) Act (RFRA) by the Indian Parliament in 2006. A combination of
grassroots mobilisations, a tenacious nationwide campaign by NCSD, and fortunate
political circumstances in India’s electoral politics enabled the law to come to fruition
(Kumar, Forthcoming).

The RFRA’s intent is to provide forest rights to forest dwellers, recognizing the
historical injustices done to them in denying their rights in the creation of India’s legal
forests. The law is applicable to forest dwelling scheduled tribes (STs) and other
traditional forest dwellers (OTFDs), defined as those living on forest land and dependent

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on the forests for their bona-fide livelihood needs. Some of the significant rights provided
to the STs and OTFDs include rights over legal forest land occupied for cultivation or
habitation; right of ownership and access to collect, use and dispose of non-timber forest
products and rights to protect, conserve and manage “community forest resources”
(CFRs). All these rights have the potential to create spaces for voice and participation of
forest dwellers in forest governance.

The rights to conserve and manage CFRs are extremely important in this respect.
The RFRA defines CFRs as “customary common forest land within the traditional or
customary boundaries of the village to which the villagers had traditional access.”
CFRs can include land that was legally categorized as state-owned forest of any type. The
forest-dwelling STs and OTFDs shall have the rights to “protect, regenerate or conserve
or manage community forest resources.” This right is further strengthened by another
section in the RFRA that empowers the right holders under the act to protect wildlife,
forest and biodiversity as well as adjoining catchment areas, water sources and other
ecologically sensitive areas.

The rights determination process is to be initiated at the community level by the
Gram Sabha (village assembly), which would receive claims, verify them and consolidate
them for consideration by a higher sub-divisional level committee (SLDC). The final
rights determination and preparation of record of rights will be done by the SLDC and a
district level committee (DLC). Both the SLDC and the DLC would consist of officials

and at least three members of elected local self-governance institutions.

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The law, if implemented properly, can lead to major changes in forest governance,
creating greater spaces for democratisation and participation by erstwhile marginalised
forest dwellers. Some of its implications as compared to JFM, are as follows.

Delegation of Power and Authority

The provisions for CFRs in RF RA provide, for the first time, a statutory basis for
community forest protection and conservation. In contrast to JFM, communities claiming
rights under RFRA will have legal powers to protect and conserve forests. Under RF RA,
the FD will no longer have the discretionary power to unilaterally allocate or withdraw
forest areas to forest dwelling communities as under JFM. The community, once
conferred the rights over its CF R through the legal procedure provided in RF RA, will
have the rights to protect the CF R without taking any approval from FD.

This has prompted many self—initiated community forest groups protecting state
forest land in Orissa to file claims for community forest resources. In Ranapur block of
Nayagarh district, 78 such claims have been filed as per the procedures under RFRA
(Vasundhara, Pers. Comm., 2008) with more in preparation. In Maharashtra state,
Mendha-Lekha village, famous for its pioneering community forest protection, is one of
400 villages that have applied for recognition of community rights to state forest land
(CSE, 2008). It is reported that around 50 villages in Gudalur, Tamilnadu have
demarcated their CF Rs and prepared their claims, as well as 293 villages in Andhra
Pradesh and a number of tribal hamlets in Waynad and Attapad areas of Kerala (CR
Bijoy, Pers. Comm., 2008). CFR claims in various other states are expected to intensify
as awareness grows about this important provision. In some cases, villages cmrently

under JFM are also claiming rights over community forest resources under RF RA.

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Communities’ ability to opt out of JFM agreements yet retain rights and protection
powers over CFRs will shift power toward them, away from the FD.

Unlike J FM, where community selection and allocation of forest area to selected
communities is the FD’s prerogative, under RFRA forest dwellers have the power to
initiate the process of demarcating and claiming CFRs. RFRA allows communities to
reclaim as part of their traditional or customary territory areas that were converted into
legal forests in the past. A conflict resolution mechanism between neighbouring
communities for overlapping claims is also provided whereby a joint village assembly of
such communities would be called and negotiations carried out. Only when neighbouring
communities cannot resolve boundary claim conflicts does the matter go to the next
higher level committee (SLDC) for resolution.

Through the process of creating CF Rs, RF RA tries to shifts the re-territorialisation of
forested areas from a bureaucratic function in JFM into democratic spaces of contestation
and negotiation. There is a strong possibility that existing ad hoc allocation of areas for
JFM by the FD will be challenged by excluded communities of forest dwellers who might
be able to provide evidence of their customary forest use as RFRA requires for claiming
rights. Such claims and counterclaims would lead to local conflict and legal action,
disrupting and challenging the existing J FM arrangements and forcing negotiations at
local level between communities and the forest bureaucracy.

Accountability

By providing legal rights to communities to manage and protect forests, RF RA has

created a centre of authority at the community level and ensures that the FD will no

longer have complete say in managing community forests. Community institutions for

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managing CF Rs will have legal backing under RF RA whether or not the FD supports
them. This will necessarily lead to changes in JFM’s institutional arrangements, with
greater accountability to the legally empowered and recognised community institutions.
The FD will no longer have the power to impose unilateral timber management and
extraction decisions without community consent. Right holding communities can legally
challenge FD decisions if it does not consult and seek their consent.

Local level contestations based on RF RA are already being reported. For example, in .3

the West Bengal hills, local forest dwellers organized a blockade of a FD timber i ..

 

shipment out of the area, arguing that under the RF RA the FD no longer has the right to
harvest and export timber without their consent (Sinha, 2008). One expects that case law
as well as state guidelines on these overlapping claims, powers and rights will develop
over time.

Diversion of forest lands for activities such as mining, industrialisation and other
development activities is a critical area of policy level accountability affected by RF RA.
Before RFRA this was the prerogative of the state and central governments, with no
voice or accountability to the forest dependent communities. Rights under RF RA will
allow communities to challenge such unilateral diversion of forest land. In Orissa, for
example, local movements are planning to use RFRA to challenge a mining development
plan in Niyamgiri and an industrial development project of the Korean Steel company
POSCO in an ecologically sensitive area in Jagatsinghpur (Asher, 2008). The
interpretation of conflicting laws on such issues will be finally decided in courts, but the

very opening up of this issue provides spaces for political contestation.

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RF RA also has important implications for more than three million people who live
inside the more than 600 wildlife sanctuaries and national parks. These protected areas
have become sites of continuous conflicts between the Forest Department and local
communities as displacements and restrictions on customary forest use have disrupted
forest dwellers’ livelihoods. The government’s Tiger Task Force characterized it as a
“war of conservation” that has adversely affected both human rights and conservation
(G01, 2005).

The RF RA directs that rights provided in the law must be given to forest dwellers
living inside protected areas. It ensures that unilateral decisions such as suspension of
NTFP collection and involuntary resettlements are no longer possible, and that forest
dwellers can be resettled elsewhere only with their prior informed consent. Thus the law
imposes accountability on the state towards the vulnerable people living in protected
areas, which are often their ancestral homes. The creation of this legal space has already
led to local protests and resistances against unilateral decisions on protected area
management. In Tamilnadu, local communities have strongly protested against
declaration of Mudumalai Sanctuary as a “critical tiger habitat”, claiming such a
declaration is illegal under the RFRA (Masinagudi Panchayat, 2008).

Impacts on Forest Dependent Poor

RFRA has significant implications for the forest dependent poor. Under state
ownership of forests and JFM, poor forest users and forest dwellers have been
marginalized, excluded and harassed. By recognising their legal rights on forests, the
RFRA can ensure their tenure security and curtails the Forest Department’s power to

harass them. The strategy of using JFM to remove forest dwellers cultivating forest land

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becomes much more difficult. RFRA can also contribute to secure land rights for
hundreds of thousands of marginalised shifting cultivators in Orissa and northern Andhra
Pradesh.

As the new law gives forest dwellers ownership rights over non-timber forest
products (NTFPs), Forest Department attempts to regulate the use of forests and its
products will require the right holders’ consent. Rights over NTFPs also open spaces for
pro-poor changes in the regulatory regimes for these products. In Orissa, for example,
trade in kendu leaves (used for making country cigarettes) and bamboo is nationalized,
with the State keeping substantial royalties. After the passing of the RFRA, forest
dwellers would have legal rights over these royalties, upwards of Rs. 1 billion annually,
and mechanisms for sharing these royalities with the millions of forest dwellers who
collect them would need to be arranged. The communities can also now reject the State
monopolies for collection and marketing of many NTFPs and sell these products on the
open market.

JFM AND RFRA: FROM SUBJECTS TO CITIZENS

Indian forest governance has treated forest dwellers as “subjects” to be regulated and
managed rather than citizens of a democracy with rights and responsibilities. Effective
democratic decentralization occurs when citizens and their collectives have a voice and
role in decision making that affects their welfare. Secure rights of individuals and groups
provide them the legal and moral locus standii to participate in decision-making. JFM
does not provide secure rights to participants; at best it offers certain concessions in
exchange for forest protection. These concessions can be withdrawn at any time without

recourse. The FD, with its powers under the Indian Forest Act, 1927, holds all the cards

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in J FM, and the question of a democratic relationship with local communities does not
arise. Unilateral discretionary powers also mean that the bureaucracy moves to align with
powerful local interests to fulfil its objective of protecting and exploiting forests, and
often marginalizes people who actually depend on forests for their livelihoods.

By providing secure rights to forest dwellers, the RFRA has created possibilities for
changing the rules of the game, reducing the power asymmetry both between the
bureaucracy and the local communities, and between the elites and the weaker sections
within communities. RFRA has the potential to create accountability of the forest
bureaucracy to forest dweller communities. It also provides for shifting tangible legal
powers and authority to forest dwelling communities. This opens legal spaces for the
marginalised subjects of forest governance to become citizens with rights and
responsibilities, and equal partners in the governance of forest resources.

The extent to which these possibilities materialise will be decided through ongoing
political contestations. RF RA itself was the product of a political process, pushed by the
nationwide mobilisation of forest dwellers and their supporters. On the other hand, with
JFM institutionalized in forest governance, the FDs, NGOs involved in JFM, and many
existing J FM committees are vested in the status quo. The accountability and shifis in
power relationships that the RF RA brings are a direct threat to these powerful actors, who
are working to fight the effective implementation of RFRA. At policy levels this includes
lobbying to retain JF M in its current form, trying to exclude protected areas from the
purview of RFRA, etc. Conservation groups and retired forest bureaucrats have filed
public interest litigations questioning the constitutional validity of the RFRA. At the

implementation level, State governments have focused mainly on settling individual

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rights on occupied forest rights and have generally ignored the issue of settling CF Rs.
PBS in many states have been given a central role in implementing the law, giving them
the space to sabotage it.

Coalitions of tribal and forest dwellers and their NCSD advocates are countering the
efforts to subvert the RFRA. At the policy level, these coalitions are pressuring

Parliament and the central government ministries to issue proper implementation

1%.”. 1"

guidelines for RFRA. Various national and state level groups are trying to counter the
court cases against RFRA and ensure that the law is implemented in its true spirit. At the
grassroots level, coalition members are trying to ensure proper implementation of the
law. Political contestations over the RF RA and its implementation are taking place across
scales.

The comparison between I F M and RF RA illustrates the qualitative difference
between a top-down, state initiated decentralisation program and a demand driven,
political reform process. RFRA stands in sharp contrast to the top-down decentralization
of JFM in its origins, narratives and consequences, and opens further spaces for
democratic contestations in India’s forested landscapes. RFRA’s enactment was an
outcome of democratic politics and the realisation of its potential is proving to be
contingent on a fiercely contested political process across scales ranging from villages to

the national parliament.

 

The struggle over forest rights and governance in India and the RFRA represent a
microcosm of the larger struggle for democratic governance and citizenship in India. It
serves as an example for other nations and communities grappling with similar issues of

democracy in forest governance. The forestry sector in India will be worth keeping an

101

eye on for the next few years as top-down decentralization and bottom-up struggles for

democratization play out with each other.

102

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