DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

SESSION: 2019-2024

ENVIRONMENTAL LAW

FINAL DRAFT

REGULATION OF ENVIRONMENT IN TRIBAL-DOMINATED PARTS OF INDIA: INTERPLAY BETWEEN

LAW AND CUSTOM

SUBMITTED TO- SUBMITTED BY-

MR. AMANDEEP SINGH KARTIKAY AGARWAL

ASSISTANT PROFESSOR ENROLMENT NO.-190101079
(LAW) B.A LL.B. (HONS.)
Dr. Ram Manohar Lohiya National Law University 6 TH SEMESTER, SECTION-A

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 TABLE OF CONTENTS

I. Introduction.........................................................................4

II. Colonial Backdrop..............................................................5

III. Recognition of Customary Law.........................................7

IV. Regulation under PESA......................................................9

V. Regulation under FRA.......................................................11

VI. Failings of FRA...................................................................12

VII. Case Study on Odisha........................................................13

VIII. Conclusion...........................................................................14

IX. Bibliography........................................................................16

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 ACKNOWLEDGEMENT

I have taken a lot of efforts in compiling this project. However, it would not have been possible
without the kind support and help of many individuals and organisations. I would like to extend my
sincere thanks to all of them.

I express my immense gratitude to Mr. Amandeep Singh for providing me with his exemplary
guidance, support and encouragement throughout the course of this project.

I would like to extend my deepest gratitude to my parents and friends for their continuous words of
encouragement and support which helped me in completing this project.

Finally, This project is a result of my efforts combined with all the means and environment that has
been provided to me by Dr. Ram Manohar Lohiya National Law University, Lucknow and its
authorities and I am thankful to them.

DECLARATION

I hereby declare that the project ‘REGULATION OF ENVIRONMENT IN TRIBAL-DOMINATED PARTS OF

INDIA: INTERPLAY BETWEEN LAW AND CUSTOM’ submitted by me to Dr. Ram Manohar Lohiya
National Law University, Lucknow, Uttar Pradesh in partial fulfilment requirement for the award of
the degree of B.A.L.L.B(Hons.) is a record of bonafide project work carried out by me under the
guidance of Mr. Amandeep Singh.

I further declare that the work reported in this project has not been submitted , and will not be
submitted either in part or in full, for the award of any other degree or diploma in this institute or
any another university.

Kartikay Agarwal
ENROLLMENT NO.-190101079
B.A LL.B. (HONS.)
6th SEMESTER, SECTION-A

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 INTRODUCTION

India is home to the largest indigenous population in the world. According to the 2011
Census, the adivasi population constitutes nearly eight percent of the country's total
population. Forest-dwellers, including a high proportion of tribals, are among the most
socially and economically vulnerable groups in society, regularly faced with a plethora of
problems such as indebtedness, land alienation, involuntary displacement and subsequent
lack of proper rehabilitation, and so on.1

“Liberty and forest laws are incompatible,” an English country vicar had remarked in 1720,
speaking on behalf of villagers shut out of woodland reserved for the exclusive use of the
king. Both in monarchies and in democracies, the state management of forests has met bitter
and continuous opposition in a history laden with social conflict.

The decisive turning point in the story of Indian forestry was unquestionably the construction
of the railway network. Large tracts of forest land were destroyed to meet the demand for
railway sleepers, over a million of which were required annually. This devastation brought
home rather vehemently the reality that India’s forests were not inexhaustible.2

1
Archana Vaidya, A History of Forest Legislations, August 2011, available at
http://infochangeindia.org/environment/backgrounder/a-history-of-forest-regulations.html (Last accessed on
January 17, 2016)
2
RAMACHANDRA GUHA, THE PREHISTORY OF COMMUNITY FORESTRY IN INDIA VOL. 6, NO. 2,
SPECIAL ISSUE: FOREST HISTORY IN ASIA 213 (2001)

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 COLONIAL BACKDROP

Historically, forests in pre-colonial India were administered by local communities living in

and around the forests, who depended upon the environment for their livelihood and
sustenance. The first genuine attempt in the direction of forest governance came with the
Forest Charter in 1855. More annexationist statutes were enacted in 1865 and 1878, in the
years that preceded the formulation of the more robust Indian Forest Act in 1927, which
continues to be in force even today.

While the concept of scientific management in forestry came to be introduced in this manner,
Indian forest laws enacted in the 19th and 20th centuries were extremely regressive and
intrusive in nature. These legislations treated forest dwellers and other traditional forest users
and especially their farming practices such as shifting cultivation as a threat to forest ecology.
In fact, the genesis of the contemporary problem of encroachment, deforestation and
degradation lay in the process of mounting state control over forests and the simultaneous
alienation of forest-dwelling communities, initiated by the British and continued with fervour
by successive governments in independent India. With independence, the objective of
maximising revenues from the sale of what was once common property resource was carried
out in the guise of national interest and economic growth by charging exceptionally low
concessional rates to industrial players for raw material, thereby leading to unsustainable
commercial exploitation.

Moreover, the colonial law distinguished tribes on its judgment of their ability to manage
their own affairs. Accordingly, this has directly affected the degree of self-government
rendered to different tribes. Judged by these criteria, the north-eastern tribes—who are also
isolated but seen to be more ‘socially advanced’—were given considerable constitutional
freedom under this arrangement, while the tribes in south-central India came to be placed
under the aegis of provincial governors. In the recent past, however, several developments—
the creation of two new states in Jharkhand and Chhattisgarh in 2000 through tribal political
movements, the revision of the National Tribal Policy, as well as the Scheduled Tribes and
Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 3, which grants
tribes any nature of recognized ownership in forest lands and produce for the first time—
underlines the growing societal relevance of tribal issues.

3
Passed in December 2006. Hereinafter referred to as the FRA

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The FRA is a belated but bold parliamentary effort aimed at democratising forest
management and governance. Not only were the rights of forest dwellers recognized, the
statute also sought to make these people an ally in forest management and governance,
previously considered exclusive domain of the forest bureaucracy. To quote from the
preamble of the enactment itself, it recognises and vests forest rights and occupation on forest
land with forest-dwelling scheduled tribes and other traditional forest-dwellers (OTFD) who
have been residing in such forests for generations but whose rights could not be recorded 4. In
this manner, the FRA offers a framework for recording vested rights and detailing the nature
of evidence necessary for such record.

Given this backdrop, this essay seeks to underline the achievements and shortcomings of the
environmental law and policy adopted by the government in the past few decades, while also
examining alternate mechanisms, chiefly custom, that may be promoted to regulate the
environment in tribal-dominated parts of India.

4
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, Preamble

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 RECOGNITION OF CUSTOMARY LAW

"For instance, unless we are in a position to provide employment and purchasing power for
the daily necessities of the tribal people and those who live in or around our jungles, we
cannot prevent them from combing the forest for food and livelihood; from poaching and
from despoiling the vegetation. When they themselves feel deprived, how can we urge the
preservation of animals? How can we speak to those who live in villages and in slums about
keeping the oceans, the rivers and the air clean when their own lives are contaminated at the
source?" - Mrs. Indira Gandhi, Prime Minister of India, 1972 Stockholm Conference

Customary law can be described as a set of rules through which a tribe practises its culture
and expresses its worldview. It governs a person’s marriage, divorce, inheritance, child
custody, etc as well as community relations such as tenure rights over forests, lands, water
bodies, and other such natural resources.5

There are several legal pathways or mechanisms for recognition of customary law viz.
constitutional, judicial, statutory and administrative. Recognition, promotion and protection
of customary laws and practices is rapidly becoming an essential element of national,
regional and international policies and programs concerning the interests of indigenous
peoples and local communities. Hence, ideally the government should encourage the target
community to develop indigenous political, governmental and financial structures, with the
conventional bureaucracy administering support. This is a bottom-up approach where
autonomy ensures a dramatic increase in tribes’ representation in the political system and
their participation in decision-making processes that affect their own development 6. Such an
approach urges us to move past the tribes-as-environmental-stewards narrative and forces us
to reflect upon Indian tribes as sovereigns, as people, as stakeholders, and perhaps most
importantly, as experts.

India voted in favour of the United Nations Declaration on the Rights of Indigenous Peoples
(UN Declaration) which asserts a range of rights to autonomy that are intrinsic to the tribal
peoples of the world. The UN Declaration, despite not being binding, has been variously

5
Apoorv Kurup, Tribal Law in India: How Decentralized Administration Is Extinguishing Tribal Rights and
Why Autonomous Tribal Governments Are Better, Indigenous Law Journal Vol. 7 Issue 1 (2008)
6
D.L. VAN COTT, INDIGENOUS PEOPLES AND DEMOCRACY: ISSUES FOR POLICYMAKERS IN
D.L. VAN COTT, ED., INDIGENOUS PEOPLES AND DEMOCRACY IN LATIN AMERICA 13 (1994)

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described as an international norm-building document that underlines the ever-increasing
recognition of the importance of custom.

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 REGULATION UNDER PESA

Panchayats (Extension to Scheduled Areas) Act, 19967 mandated the states in peninsular
India to devolve certain political, administrative and fiscal powers to local governments
elected by the tribal communities in their jurisdiction. The Act was hailed as one of the most
progressive laws passed since independence, granting tribal communities radical powers to
preserve their traditions and entrusting them with the authority to manage their community
resources.

Forest laws in India classify forests into three categories: reserve forests, meant to be left
unscathed; protected forests, where exploitation is permitted unless specifically prohibited;
and village forests, generously assigned to local communities for administration and use. The
ability of a tribal community to utilize the forest or produce there from would thus largely
depend on the nature of its classification. Thus, even though tribal communities can own
minor forest produce with the backing of PESA, it becomes a paper right when forested areas
near tribal communities are marked as reserve or protected forests by the state government. 8
PESA does not provide guidance regarding the manner in which these states should protect
tribal rights to forestlands. Many states, such as Bihar and Rajasthan, are struggling to devise
definitive procedures to define rights over forests and minor forest produce. Meanwhile,
states like Maharashtra and Odisha, in an effort to perpetuate State control over forest
resources, attempted to dilute the provisions of PESA despite the lack of any legal
jurisdiction.9

The statute only provides that tribal communities in scheduled areas should be unconstrained
from managing minor water bodies for a statutorily undefined term. The problems are
compounded when some states either devolve management responsibilities without
ascertaining community needs or neglect traditional use patterns while pass new laws. The
contrasting examples of Madhya Pradesh and Maharashtra are striking: while the state of
Madhya Pradesh delineated rules for the use of minor water bodies in scheduled areas, the

7
Hereinafter referred to as PESA
8
In fact most of the disputes and claims relating to use and access to forests have lingered on and evaded
resolution in the past because of the failure to demarcate precisely the extent of the forest. Frequent changes in
the definition and classification of forests have not helped in determining and settling forest rights. Different
laws, policies, and orders defined and classified forests differently, all of which have specific control regimes
attached to them. For example, forest was first defined in the Indian Forest Act, 1865 as “land covered with
trees, brushwood and jungle,” because its purpose was timber extraction.
9
Sanjoy Patnaik, PESA, the Forest Rights Act, and Tribal Rights in India, September 2007, available at
http://www.mtnforum.org/sites/default/files/publication/files/4946.pdf (Last accessed on January 13, 2016)

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Maharashtra legislature entrusted management of minor water bodies to local governments,
while leaving actual determination of authority to the absolute discretion of the state
executive. Even though states in the Fifth Schedule Area have enacted compliance
mechanisms with respect to PESA, their provisions have seen dilution by being handed over
to bodies other than Gram Sabhas.

On the whole, contrary to PESA’s guarantees that state laws would respect tribal customs and
traditions, the Act has managed to dishonour many tribal traditions of self-governance. Such
tendency to violate tribal norms is not only an outcome of sub-national apathy, but also the
upshot of a statutory scheme that coerces tribes to adopt non-tribal practices. This abrupt shift
from traditional institutions to foreign notions of elected representatives and Panchayats has
resulted in insignificant tribal participation and an underutilization of our institutions. Thus,
for instance, Lanjia Saoras and Santhals, both tribes from the state of Odisha, have failed to
adopt the electoral system of government mandated by Part IX of the Indian Constitution.
Similarly, tribes in Madhya Pradesh have been unable to adapt to the Panchayat system for
their own welfare or societal development, while in Gond and Bhil societies this arrangement
has even eroded the significance of traditional councils while straining long-standing
community ties.

Effectively, the tribes remain culturally deprived and economically robbed even after the
enactment of the legislation. As under colonial law, these vulnerable populations have failed
to acquire the status and dignity of viable public bodies under PESA. Tribal local
governments are ignored in development plans to the extent that very few benefits actually
percolate down to the local tribes, meaning that cultural and economical subordination to
outsiders is rampant.

The introduction of PESA in 1996 definitively signalled the intention of the government to
discard command-and-control for “new governance” in tribal areas. However, in choosing the
path of decentralization, it could be said that the law-makers made the mistake of clubbing
the right idea with the wrong solution.

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 REGULATION UNDER FRA

The enactment of the FRA is understood to represent an institutional intervention seeking to

redress the ‘historic injustice’ done to the tribals and forest dwellers in India through years of
exploitation and oppression since colonial times. 10 The federal government has enacted the
law to recognize the rights of its tribal populace. It can be viewed as the culmination of a
protracted struggle by communities for forest rights and conservation that spanned centuries.
The need to meliorate civil unrest in tribal areas definitely seems to have played a part, as the
lack of recognition of forest rights has been a major factor in mobilising support for the
Maoist movements across India’s forested tribal regions.

By addressing concerns like tenure security and access rights, the statute builds a rights-based
conservation structure around the recognition and determination of forest rights, coupled with
empowerment of local community institutions. It has the necessary provisions to protect the
diversity of use, access, and conservation practices and traditional knowledge of forest
communities, that have successfully guarded forests and biodiversity from time immemorial.

10
Indranil Bose, How did the Indian Forest Rights Act, 2006, emerge?, IPPG Discussion Paper Series No. 39
(2010)

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 FAILINGS OF FRA

Needless to say, ensuring that the statute is effectively utilized by forest communities requires
a determined effort to raise consciousness about the law besides developing the capacity of
the implementing agencies. The potential of the Act may be lost in the narrow perspective
through which it is presently viewed by many implementing agencies.

Moreover, the present law has watered down the interests of the forest dwelling Scheduled
Tribes by tagging them with “Other Traditional Forest Dwellers”. The forest dwelling
Scheduled Tribes no longer remain the focus of the law contrary to what it originally
envisaged. With such dilution, the law has lost its aims, objectives, essence and spirit that the
Ministry of Tribal Affairs initiated with so much fan fare to undo what it famously terms
historic injustice. The law also failed to address charges and prosecution pending against
tribals under the Forest Conservation Act of 1980 and Indian Forest Act of 1927 in retrospect.
Similarly, there is no provision in the law dropping cases registered under the Forest
Conservation Act of 1980 against the forest dwelling scheduled tribes for accessing minor
forest produce.

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 CASE STUDY ON ODISHA

The state of Odisha’s actual forest coverage is almost one-third of its total geographical area.
One-third depend on it for livelihood and food security. As in the rest of the country, the
process of consolidation of state forests and creation of protected areas in Odisha has not
done justice to the rights of the forest communities. The forests recorded under the Indian
Forest Act of 1927 and Orissa Forest Act of 1972 were declared without following the
procedure for settlement of rights provided under the said laws.

Incidentally, the history of community forest protection and management in Odisha dates
back to pre-independence. There are no less than twelve thousand self-initiated and legally
unrecognized forest protecting groups throughout Odisha that protect around two million
hectares of forest, which include many diverse ecosystems of high ecological value.

Dongria Kondhs, a tribe in the Kalahandi district, has claimed community tenure rights over
the Niyamgiri hill ranges, all of which are considered to be their habitat. The community is
under threat from mining and industrial projects and the claim process is directed towards
securing the forest and its biodiversity.11 This is a common story in Odisha: here, tribal areas
are coterminous with mineral deposits and have thus attracted considerable attention by the
private sector in recent years, both for extraction and industrial development. All this together
with the increasing threat of naxalite violence in these areas has made focus on tribal
development a legislative imperative. It is estimated that Odisha has lost more than a quarter
of its forests in the last 25 years resulting in considerable decline in its proportion of tribal
income. To make matters worse, the government of Odisha has diluted the provisions of
PESA, conveniently negating the rights conferred on the community by the Parliament.

11
Tushar Dash, The Forest Rights Act: Redefining Biodiversity Conservation in India, Policy Matters 33 (2010)

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 CONCLUSION

Over the centuries, a forest governance system was instituted that was alien, induced and
most particularly that excluded forest-dependent communities in the name of scientific
forestry, public interest, national development, conservation and industrial growth. Despite
several attempts, the state has not been able to present alternative systems of forest
management – particularly in the context of immense population growth – which effectively
address the concerns of customary and traditional rights of forest dependent communities and
adequately respond to the ever increasing needs of a market-driven urbanising and
modernizing society, responsible for putting unprecedented pressure on forests.12

In fact, survey of global economic literature reveals that in many instances around the world,
the arrangements that surfaced to replace common-property regimes failed in their duty of
advancing sustainable development.13 India offers a case in point of this sequence with its
growing nationalisation of common-property forests. In this situation, the intended
empowerment of FRA shall continue to remain a hollow promise unless the tribes, largely
vulnerable, illiterate and ignorant populations by design, are first acquainted with their rights,
and then properly assisted in putting forth their claims.

A brutal circle revolves where environmental degradation leads to poverty and poverty leads
to environmental degradation. Perpetual poverty condition in India’s tribal regions has been
explained through structural factors like breaking down of livelihood sources, political and
social alienation, physical seclusion, and indebtedness. Rehabilitating millions of such
ecological refugees displaced by large irrigation projects remains a major challenge.

Although there are protective laws governing tribal areas, many of these are either being
circumvented or not executed in practice. In this manner, the process the richness and wealth
of their knowledge systems, identity and survival with integrity is being severely damaged.14

12
Amitabh Behar, Peoples’ Social Movements: An Alternative Perspective on Forest Management in India,
December 2002, available at http://www.rlarrdc.org.in/images/Peoples%20social%20Movements.pdf (Last
accessed on January 18, 2016)
13
BERKES, SUCCESS AND FAILURE IN MARINE COASTAL FISHERIES OF TURKEY IN MAKING
THE COMMONS WORK: THEORY, PRACTICE, AND POLICY 161 (1992)
14
Nafisa Goga D'Souza, Empowerment and Action: Laya’s Work In Tribal Education, 2003, available at
http://portal.unesco.org/education/en/file_download.php/08e635bea558511944b90834fa141102IEP+-
+India+Case+Study.pdf (Last accessed on January 17, 2016)

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The significance and necessity of a structured strategy to protect the environment is
unmistakable, but such a strategy also has to account for the customary laws of tribal forest-
dwellers, who have had a symbiotic relationship with these forests for generations.

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 BIBLIOGRAPHY

Websites:

1. www.unesco.org

2. www.indiankanoon.org

3. www.wikipedia.org

Books/ Publications:

1. Dash, Tushar. The Forest Rights Act: Redefining Biodiversity Conservation in India,
Policy Matters 33 (2010).
2. Kurup, Apoorv. Tribal Law in India: How Decentralized Administration Is Extinguishing
Tribal Rights and Why Autonomous Tribal Governments Are Better, Indigenous Law Journal
Vol. 7 Issue 1 (2008).
3. Guha, Ramachandra. The Prehistory of Community forestry in India Vol. 6, No. 2, Special
Issue: Forest History in Asia 213 (2001).
4. Behar, Amitabh. Peoples’ Social Movements: An Alternative Perspective on Forest Management in
India, December 2002.

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