From restitution to rights, Bhil communities in western India have experienced alienation from forestland and denial of access to forest resources. Although their classification and recognition as scheduled tribals indicate a certain extent of identity-based representation in forest legislation during British India and in recent reforms for decentralised forest governance, customary forest rights have not been properly addressed so far. Currently, though, a rights-based approach seems to be emerging in India’s forest governance, although such an approach is not new to India. As far back as the 1860s, as indicated in section 3.2, Brandis proposed to recognise the customary rights of people residing inside forests (prior to their being classified as scheduled tribes). However, this idea was never implemented, resulting in contestation over much forestland.
A similar rights-based approach seems to have been implemented, although under popular pressure, with respect to administrative decentralisation. In 1992, when the decentralisation process was first introduced through the Panchayati Raj in India, it excluded the tribal areas. It was only in 1996, after nationwide protest by tribal groups and human right activists, that decentralisation became a reality in the tribal areas as well, with the provisions of the Panchayats (Extension to the Scheduled Areas) Act, (No. 40 of 1996), popularly known as
49 PESA (henceforth, the PESA). The PESA aimed to devolve power to the tribal gram panchayats – the elected third-tier village-level government institution. Decentralisation enforced through this Act aimed to bridge the gap between the hitherto respected tribal traditions of self-governance on the one hand and decentralisation of the administration through elected gram panchayats on the other. Below the level of gram panchayat, the PESA stipulated the establishment of a gram sabha at the level of the hamlet. Moreover, section 4.a of the PESA determines that ‘a State legislation on the Panchayats that may be made shall be in consonance with the customary law, social and religious practices, and traditional management practices of community resources.’ It required state governments to amend their existing laws to make them consistent with the federal legislation. Just like the recognition of customary rights proposed by Brandis in 1860, the PESA had to date not been adopted.
For forests in particular, decentralised governance was also introduced in India with the launch of Joint Forest Management (JFM) in 1990. JFM aimed – and still aims – at involving rural people in the protection and management of forest, jointly with the Forest Departments. So far, there has been some positive outcomes of JFM, such as a betterment of forest quality and quantity in several areas, but on the negative side, villagers did not gain any decision- making powers through JFM, there has been a lack of transparency and democracy within the villages involved and exclusion of poor, landless and female members of communities has been rather common (Banerjee, 2007; Poffenberger and Singh, 1996). Moreover, tribal rights to forest produces remained unclear (Das, 1996). In 2004, one of the items on the political agenda of the then newly elected national government (United Progressive Alliance) was to put an end to the eviction drive against forest-dwelling tribal and traditional communities and to overcome the shortcomings of JFM. The government gave the task of drafting the so-called Forest Rights Act to the Ministry of Tribal Affairs. The Ministry of Environment and Forests opposed the decision, claiming that forests came within their domain of jurisdiction. Nevertheless, the Forest Rights Act was passed.
The assumption is that the implementation of the Forest Rights Act will benefit forest dwellers. Its paradigm shift towards a rights-based approach seems to be producing a new meaning for tribal communities’ involvement in forest management. Nonetheless, the concept of forest has long been debated in Indian legislation and still does not have a clear definition today (Rastogi, 2007). Thus, forestland tenure and forest resources have been contentious issues as a result of the Forest Department’s authority to reserve forests for exploitation and protection on the one hand vis-à-vis the constitutional rights of tribal communities to access the forests on the other. After 60 years of independence, the Forest Rights Act is the first legislation in India that duly recognises those who do not have any documentary proof of their land holding but can claim that they are cultivating the land themselves for a livelihood. Thus, the Forest Rights Act recognises that many scheduled tribe communities and other traditional forest dwellers can legitimately reside on demarcated forestlands without any formal (colonial) records or prior recognition of their rights.
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There are several aspects of the Forest Rights Act that demand special attention in the context of future tribal forest governance, and we elaborate below on the following four: (1) the creation of a new social category; (2) the implementation problem; (3) the dilution of existing authority; and (4) the individualisation of tenure rights. First, the law not only applies to the identity-based category of the scheduled tribes, but also creates a new vague social category of ‘other traditional forest-dwellers’, without, however, clearly communicating who belongs to the latter category. This is important because, on the one hand, non-tribal elite communities have – in the name of ‘other traditional forest dwellers’ – already claimed encroached land in several Bhil-dominated villages (Bose, 2011a). On the other hand, a too restrictive interpretation of the term may pose a threat to the claims of vulnerable pastoralists and nomadic tribes, who have been traditionally dependent on natural resources. For example, there is evidence of an increase in conflict due to Bhil people’s denial of the traditional barter system of nomadic pastoralist communities (first author’s field work 2008-2010). This legislation considers December 13, 2005, as the cut-off date for consideration of land rights. For traditional forest dwellers other than scheduled tribes, a lease will be given for land that they have occupied for three generations, or 75 years prior to 13 December 2005, for bona fide livelihood needs. At least on paper, the Forest Rights Act recognises traditional forest rights of tribals that include nistari (community forests), minor forest produce, fish and other products of water bodies, grazing land, traditional seasonal resource access for nomadic or pastoralist communities, community rights to intellectual property and traditional knowledge relating to biodiversity and cultural diversity. Prior to the Forest Rights Act, most of the Bhil people had been either displaced or regarded as illegal settlers by the state Forest Department, but through the Forest Rights Act, those whose land is in dispute or whose land has been taken by the Forest Department are eligible to legitimate land claims.
Secondly, besides creating confusion about who is addressed by the Forest Rights Act, other problems have emerged with its implementation. For implementation, the Forest Rights Act has different tiers – state, district, sub-divisional and village – of committees. Each tier committee will consist of officers each from the Revenue Department, Forest Department, and Tribal Department of the state government and three members of the Panchayati institution at the appropriate level, of whom two shall be scheduled tribe members and at least one shall be a woman. Such judicial clauses for reservation of seats provide for mere representation of minority groups on the committee without actually devolving any resources to local people or empowering tribals, particularly women, to make decisions themselves (Bose, 2011a). Moreover, these multi-stakeholder committees at higher administrative level are not accountable to the gram sabhas. There are several inconsistencies between the rules of the Forest Rights Act and the PESA, for example regarding the definition of the gram sabha. The Forest Rights Act rule 3.1 defines gram sabhas of the panchayat as the larger entity that may oversee more than one village (or several hamlets); this contradicts the PESA, which defines a gram sabha in tribal areas as being at the level of one hamlet. There is concern that,
51 although the Forest Rights Act envisages the involvement of democratic institutions at the grassroots level, the gram sabha does not have the power to recognise forest rights or enforce such rights.
Thirdly, there is no doubt that on paper the Forest Rights Act could be regarded as a step towards political decentralisation, since it clearly gives sole authority to the gram sabha (village assembly) as the competent authority for initiating the process of determining the nature and extent of individual forest rights. However, different tiers in the decision-making process dilute the authority of the gram sabha to form village-level forest-right committees to assess the individual and collective forest tenure claims. An individual or community can appeal within 60 days to a sub-divisional committee if they are dissatisfied with the village- level committee decision. Although the village committee can veto the decision of the sub- divisional-level committee, the decisions of the district level committee remain final and binding. Moreover, the district-level committee holds the authority to decide the period for which forest rights should be ‘derecognised’ in the event of repeated contravention of the provisions of the Forest Rights Act. Moreover, due to high levels of illiteracy and a lack of empowerment, Bhil people hardly know about their rights to claim forestland, let alone appeal against a higher authority’s decision (first author’s field work data 2008-2010). Our case of decentralised forest governance in Bhil communities corroborates Ribot’s (2003) extensive findings in developing countries, suggesting that common problems of political decentralisation in the forestry sector are related to the choice and the form of representation in local institutions, to accountability, transparency and the general lack of devolution of resources.
The fourth aspect is that the emphasis in the Forest Rights Act on the statutory forestland rights of the individual (tribal) household undermines collective forest rights. Under customary law, land was held by the village as a whole, guaranteeing the continuity of the community and ensuring that each household had access to resources to sustain its livelihood. With the individualisation of tenure rights, inequality is created within the village, and this may potentially lead to opportunistic behaviour by tribal (and non-tribal) individuals. On one hand, those who acquire individual tenure rights enter into institutional arrangement with the state (instead of a relation as a kinship group: the Bhil), and therefore acquire an interest in the new situation created by the Forest Rights Act. On the other hand, those whose individual tenure rights are not recognised are faced with identity-based exclusion both from the government and within their own tribal community. The other related issue is about the rights-based approach in forest governance, because in reality, in the case of the Bhil, such rights are not true rights, but rather privileges because they do not have alienation rights. In general, the perception of the Forest Rights Act can best be summarised by quoting a Bhil respondent who explains that, ‘the rightful land that belonged to us was taken away, and it was classified as forestland. Now, our land is returned (through the Forest Rights Act) to us as a privilege – without giving us any alienation rights – making the forestland totally state-
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controlled.’ Another challenge of the Forest Rights Act is the way the decision making about rights is organised. The formal institutions (for instances panchayat, sub-division committee, district committee) can influence the allocation of forestland within the tribal villages, superseding local customary arrangements. This means that the government (through Revenue, Forest, Panchayati, and Tribal Welfare Departments) increasingly has the ability to influence local practices of land use and land allocation because they have the mandate to intervene in disputes about forestland, triggered by the implementation of the Forest Rights Act. Thus, the individualisation of forest rights not only divides the tribal people politically, but makes both forest and tribal people easier subjects of more centralised governance.
The success of the decentralised Forest Rights Act depends upon the respective state governments of India adopting specific forest and tribal rights laws, which may or may not recognise all the clauses of this legislation. Furthermore, implementation of the decentralised forest tenure reform also relies on coherence with other existing statutory laws and the extent of collaboration among different government department officials.
2.6 CONCLUSION
In this paper we have analysed three dimensions of forest governmentality – the history of categorisation, the politics of social identity and the technologies of decentralised forest governance – in relation to the Bhil tribals and their forests. As we hope to have shown, forest governmentality offers an insightful analytical lens to explain the mechanism that created the scheduled tribes category during the British colonial period and governed the inclusion and exclusion of tribals in respect of forest use and management on the basis of this categorisation. This same categorisation process produced the tribal people’s resistance against and – later on – embracing of these identity-based categories, and helped maintain state control over forestlands through new modes of forest governance in historical and contemporary contexts. A long lineage of commonalities is evident between colonial state forest policies oriented at categories such as village communities, and independent India’s Forest Rights Act recognising traditional forest rights for the scheduled tribes and other traditional forest dwellers. Yet, India’s land or agrarian reform in the past was different compared to the current forest governance that promote – at least on paper – political decentralisation. The distorted land classification of the past (dispossession of forest inhabitants) therefore poses a challenge to future forest governance.
Despite codified edicts, laws and policy discourses, for several reasons tribal forest tenure rights in India do not necessarily match with reality on the ground. One of the biggest future implications of forest governmentality is the forest tenure transition from customary collective ownership to individualisation of forestland, mainly because it fails to identify distinctions between different local customary property arrangements, often managed through kinship or hamlet. The fact that most tribal people have specific tenure systems of collective
53 forest rights based on customary arrangements leads to their exclusion from the Forest Rights Act’s scope, which is – ironically – supposed to defend their forest rights.
This paper has deliberately chosen to examine the making of categories of forestland and scheduled tribes that have become part of modern legal-political and environmental discourse. Our point is straightforward. First, with the construction of the scheduled tribes during the colonial period, this socio-ethnic identity category has been internalised by the post independent state to control practices of certain groups of marginalised people. Consequently, the state is able to maintain domination over the scheduled tribes by new modes of regulation of forestry resources. Second, the unchanged hierarchical structure of forest administration that continues to function uses a traditional authoritative approach by implementing rules that apply uniformly, ignoring difference in forest–people relations, and further perpetuating social identity through identity-based tenure reforms. Finally, the Bhil have adopted this state- imposed identity category as their own ‘indigenous tradition’ to further claim and control forest rights in their favour. This process illustrates the articulation between techniques of state control and the self-constitution of the ‘subject’ (Foucault, 1977).
Our paper shows the urgency for in-depth socio-political research on three dimensions of forest governmentality to examine, for example, how forest governmentality influences exclusion and inclusion within the scheduled tribes. If tribal resource governance systems are to be sustained, there is a need for thorough investigation of tribal people’s changing individual and collective forest rights. In addition, critical assessment of changing authority relations and institutional arrangements for forest management in the scheduled areas is required. Addressing these research questions could facilitate the next generation of forest tenure reform efforts to effectively integrate people’s interest in forest governance in tribal India.