Indian Forest Rights Legislation: Significance of Recognizing the Legal Pluralism for Indigenous Peoples Rights

Indian Forest Rights Legislation: Significance of Recognizing the Legal Pluralism for Indigenous... Abstract Indigenous people’s traditional customary claim over the forest land was not accepted by the formal legal mechanism in India for a long period of time. The underlying rationale for the claim is livelihood, religious, and cultural reasons. The indigenous people’s claims remained as informal norm, which were not accepted by the formal state legal system in India. Discriminating legal centralism was existing in the area of forest governance and policy till the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act was enacted in 2006. The Forest Rights Act, 2006 has brought a paradigm shift in the entire approach of law towards the indigenous people and acknowledged the rights of the indigenous people. This article makes an attempt to understand the significance of recognition of legal pluralistic norms through legislation. INTRODUCTION Indigenous people’s traditional customary claim over the forest land due to the cultural, religious, and livelihood reasons was not accepted by the formal legal mechanism in India for a long period of time. Until Scheduled Tribes and Other Traditional Forest Dwellers Recognition of Forest Rights Act was enacted in 2006, the claim for collective rights regarding forest land by the indigenous people in India, which formed an integral part of their livelihood needs and religious and cultural practices, was existing only as informal customary norm. The formal legal system failed to acknowledge the cultural and religious rights of indigenous communities over the land on which they were traditionally living for generations. The Indian legal system followed the top-down ‘legal centralist’1 way of perceiving and conceiving the forest law till 2006, and hence, the forest law and policy in India was completely ignoring the indigenous people’s traditional claim over the forest land. The Scheduled Tribes and Other Traditional Forest Dwellers Recognition of Forest Rights Act, 2006 (Forest Rights Act, 2006) have led to a paradigm shift in the restrictive way customary informal norms were perceived by the forest law and policy in India. The Forest Rights Act, 2006 provides for the recognition of individual and community claims of indigenous peoples over the forest land. The section 6 of the Forest Rights Act, 2006 empowers the gram sabha2 (village assembly) to decide regarding the individual and collective claims of the indigenous community over the land. The Forest Rights Act, 2006 is to be acknowledged as a pioneering formal legislation, which recognizes the informal customary claims of indigenous community. It is important to note that the ‘Free, Prior and Informed Consent’ principle, which is well acknowledged in the United Nations Declaration on the Rights of Indigenous Peoples, 2007 and International Labour Organization’s (ILO) Indigenous and Tribal Peoples Convention, 1989, is brought into section 6 of Forest Rights Act, 2006 by recognizing the gram sabha as an enabling decision-making mechanism. This article aims at illustrating the significance of recognizing legal pluralism for protecting indigenous people’s rights. This article starts with a brief overview of how the legal centralist approach had been adversely impacting the indigenous people’s rights in India. Furthermore, the legal centralism approach in forest law and the paradigm shift in the approach with the enactment of Forest Rights Act, 2006 are analysed in the article. The article then discusses the significance of recognizing the Free, Prior and Informed Consent and vesting the power with the gram sabhas for the protection of indigenous people’s rights. In the final part, the article highlights the significance of the formal recognition of customary norms and how the formal recognition of customary norms through the Forest Rights Act, 2006 helped the indigenous community to determine their interest over the land. INDIGENOUS PEOPLES RIGHTS IN INDIA AND LEGAL CENTRALIST APPROACH Indigenous people in the Indian context are usually referred to as adivasis or vanvasis.3 The fact is that there is no one set of people who could be considered as ‘indigenous’ in the Indian context. Hence, indigenous people in India do not confine to one homogeneous set of people or community. The Indian legal system refers to the indigenous people as ‘scheduled tribes’. Accordingly, indigenous people and scheduled tribes are synonymously and interchangeably used in this article. Article 342 of the Constitution of India, 1950 describes the procedure by which the state could notify a community as a scheduled tribe. The procedure provided in the Article 342 is as follows: (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. The Constitution of India, 1950 only provides the above procedure but is silent on the aspect of the criteria that need to be used for the purpose of ascertaining whether a community is ‘tribal’ or not. In this regard, Lokur Committee appointed by the Government of India has provided the following criteria: ‘indications of primitive traits; distinctive culture; shyness of contact with the community at large; geographical isolation; and backwardness’.4 The above process of notifying scheduled tribes could be understood as the character of a ‘legal centralist’ approach. Here, the entire power of identifying and ascertaining who would be designated as scheduled tribes, the Indian equivalent of indigenous people, completely vest with the state, based on notification by the state entity and based on criteria provided by the state. Adopting this legal centralist approach, the Government in India is not in a position to understand the true needs and customary practices of the indigenous people. This legal centralist approach was the primary reason for non-inclusive approach to informal customary norms regarding land and cultural and religious practices of the indigenous community in India for a long period. The scheduled tribes have deep attachment and engagement with the land and ecosystem in which they inhabit. It is important to note that most of the habitation of the scheduled tribes in India is within and near the forest area. Thus, there are scheduled tribes who dwell in the forest and fringes of the forest. For these scheduled tribes, attachment to the land and forest is primarily for their livelihood, which also have close link with their cultural and religious practices. The International Working Group for Indigenous Affairs clearly captures the emotion and sentiment of indigenous people of India, which quote: ‘We are people with distinct historical, political, and cultural identities. We are united by our histories as distinct societies, by our languages, laws, traditions, and unique spiritual and economic relationships with our lands and territories’.5 A classic example of the cultural and religious attachment of the indigenous people in India is the practice of maintaining sacred grove. Sacred groves are patch of forest kept undisturbed and considered sacred by the indigenous community as a traditional practice.6 Sacred groves are considered auspicious place for worship, having the presence of god/goddess. Many indigenous tribes in India in regions such as West Bengal and Northeastern states observe this practice. Even in certain parts of the states of Kerala and Karnataka, such practices exist. However, the formal legal system in India had not given due attention for a long period to the cultural, religious linkage, and attachment the indigenous people have regarding their land. This is evidently not reflected in the forest law and policy, till the time Forest Rights Act, 2006 was enacted. Even though the Schedule V of the Constitution of India, 1950 provides special power to the state to ensure the welfare of scheduled tribes, the forest law and policy in India was in total disregard of the Schedule V requirement until the enactment of Forest Rights Act, 2006. Because of lack of formal recognition of the customary norms of the indigenous people regarding right to land, there has been rampant exploitation of the indigenous people by way of land acquisition by the government in the pretext of development. Interestingly, forest areas in which the indigenous people dwell were also acquired by the Government for the purpose of extraction of natural resources and for setting up of the extractive industries.7 There has been no ‘Free, Prior and Informed Consent’ procedure followed in the process of land acquisition from the indigenous people. Indian state had been constantly denying the pluralistic demands of indigenous people and had been maintaining the stand that all indigenous people in India have been integrated at the international stage. Coupled with this fact, the legal centralist approach of accommodating only the formal laws in India has been pushed by mainstream notion of development, based on maximum extraction of natural resources. This notion is in conflict with the interest of scheduled tribes, who want their attachment with the land to be preserved. The lack of legal pluralistic understanding in the formal laws and presence of centralist legal structure in India is quite evident. Laws are being tilted towards use of natural resources and are accommodative of the mainstream understanding of human development based on increased consumption. This mainstream interest is being imposed on the indigenous communities. OVERVIEW OF LEGAL CENTRALISM IN INDIAN FOREST LAWS The forest law and policy in India had emerged during the colonial period under British rule. The main objective of the forest law and policy in India was revenue generation from the timber and forest products and not resource conservation, per se. The literature regarding forest laws in India have pointed out that impact of British forest law and policy ‘was to increase and concretise State control over forests, which enabled to further exploit forests and supplement State revenue’.8 The interest, rights, and claims of indigenous community regarding forest land did not find a place in the forest laws and policies. In fact, the forest law perceived the tribal communities as outsiders who may hinder the revenue generation process for the state. Furthermore, even during post-independence stage, there was no major shift in the formal state-centric laws. This is evident from the analysis of the forest legislations in India. During the pre-British colonial period in India, there was no clear codified legal regulation regarding the forest.9 But it is important to note that the relationship that was in existence between the tribal community and forest has been characterized by co-existence.10 The British colonial rulers enacted the forest law in 1865 basically to establish state control over the forest resources. Furthermore, the Indian Forest Act, 1878 revised in 1927 was enacted consolidating the laws relating to forest. The primary objective of the legislation is to ‘consolidate the law relating to forests, the transit of forest-produce and the duty to be levied on timber and other forest-produce’.11 The Forest Policy Resolution, 1894 also had increasing state control over forest and had commercialization of forest as its main motive. The entire orientation of the forest laws during the British period has totally ignored the interest of tribal community. Here the British era could be seen as the initial starting point for state centralist law approach, which slowly discarded the customary norms of indigenous people. Informal law and norms relating to community claim over the forest land are thus slowly rooted out. The ‘local people’s customary forest use became an obstruction to the enterprise’, and the entire process of separating the indigenous people from forest is being equated to ethnic cleansing.12 Moreover, it can be observed that even after independence, there was no significant shift in the conceptualization of indigenous communities and their rights in the country. India continued with the Indian Forest Act, 1927, which was conceptualized during the colonial period. The Forest Policy, 1952 treated forest to be more of national economic resource, as timber could be sourced. The significance of linkage of indigenous communities with the forest was again totally ignored in the policymaking. The Wildlife Act, 1972 and the Forest Conservation Act, 1980 are understood as significant measures in the case of forest conservation in India. But the most disturbing fact is that these legislations have approached conservation only from an environmental perspective, turning a blind eye towards the livelihood needs and practices of scheduled tribes. In fact, these legislations also had led to the treatment of scheduled tribes as encroachers of the forest and as hindrance to the conservation of flora and fauna of the forest. As academic literature clearly points out, the forest conservation legislations have ‘despite laudable environmental objectives, advanced the process of consolidation and centralisation of forest governance and the process of rights deprivation. Estimates of eviction suggest that between 100,000 and 300,000 people were evicted from protected areas at different times and several million more deprived fully or partially of their sources of livelihood and survival’.13 In this context, Indian legal centralist perspective has been categorically denying the right of indigenous people. The traditional forest-dwelling communities could be evicted, and the land could be taken over by the state at the whims and fancies of the government, without any consent of these tribal communities. Developmental activities such as natural resources mining and large-dam building with large-scale evictions have adversely affected the habitat and livelihood avenues of indigenous people. The livelihood needs and religious and cultural practices were not the concerns of formal law made by the state. Thus, a significant failure of the forest law in India till 2006 was the denial of the right for the forest-dwelling scheduled tribes regarding their land and habitat. The above discussion regarding forest laws in India helps in the clear understanding that the legal centralism-based approach was adopted in India. In this context, legal centralism can be further understood as Griffith had described: Law is and should be the law of the state, uniform for all persons, exclusively of all other law, and administered by a single set of state institutions. To the extent that other, lesser normative orderings, such as the church, the family, the voluntary association and the economic organisation exist, they ought to be and in fact are hierarchically subordinate to the law and institutions of the state.14 Here the indigenous people’s traditional customary claim over the forest land due to the cultural, religious, and livelihood reasons was not accepted by the formal legal mechanism in India. The top-down approach of lawmaking without any participation from the people could be attributed as a reason. As a result, the state-made forest laws—Indian Forest Act, 1927, Wildlife Protection Act, 1972, and the Forest Conservation Act 1980—had remained as non-inclusive with top-down approach. These laws attain higher normative standards and the informal customary claims of the indigenous community become hierarchically subordinate to the law, governance, and institutional mechanism envisaged by the Indian states. But the existence of customary informal norms reflects the legal pluralism that is playing out in action. Legal pluralism is understood ‘as that state of affairs, for any social field, in which behaviour pursuant to more than one legal order occurs’.15 FOREST RIGHTS ACT, 2006 AND PARADIGM SHIFT IN FOREST LAW TOWARDS LEGAL PLURALISM The National Forest Policy, 1988 is the first forest policy-related document that adopted an inclusive approach of recognizing the claims of the indigenous community regarding forest land. Slowly with the change in the policy approach, coupled with the active and strong civil society movement calling for recognizing the rights of indigenous people, the state enacted the Forest Rights Act in 2006. The National Forest Policy, 1988 paved the way for the Forest Rights Act, 2006 to be enacted. The National Forest Policy, 1988 had adopted a people-friendly approach rather than a state-centric approach, while acknowledging the fact the tribal people have attachment to the forest. The National Forest Policy, 1988 reflects that the tribal people should be bestowed with the rights that would help further the customary claims regarding the forest. The community-based and common-property regime, which the indigenous community had as a customary practice, was accommodated in the Forest Rights Act, 2006. Scholars have unanimously lauded the Forest Rights Act 2006, and an epitome of the same is the commentary by Dash and Kothari that ‘the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 (FRA) is considered as a legal and political instrument to undo the process of deprivation of forest communities by securing their rights over their ancestral lands, community forest resources, and customary territories’.16 The section 3 of the Forest Rights Act, 2006 clearly provides for vesting of certain individual- or community-based rights to the forest-dwelling scheduled tribes and other traditional forest dwellers. The rights that are provided in the section 3 of the Forest Rights Act, 2006 inter alia include: Right to hold and live in the forest land under the individual or common occupation for habitation or for self-cultivation.17 Rights to protect, regenerate, conserve, or manage any community forest reserves that the individual or community has been traditionally protecting and conserving for sustainable use.18 The Forest Rights Act, 2006 provides proactive rights and protection to the forest-dwelling scheduled tribes. A significant part of this legislation is section 6 of the Forest Rights Act, 2006. The section 6 of the Forest Rights Act, 2006 empowers the gram sabha to decide regarding the individual and collective claims and of the indigenous community over the land.19 Thus, Forest Rights Act, 2006 is a pioneering formal legislation that recognizes the informal customary claims of indigenous community. Empowering the gram sabha as an institutional mechanism for decision-making helps in translating the customary norms into formal legal right. The initiative of the Forest Rights Act, 2006 to provide power to gram sabhas is a great shift towards the legal pluralism perspective. The legal centralism approach slowly moves away, and the state that is ready to accept the informal customary norms of the forest-dwelling scheduled tribes slowly emerges. This is a pivotal shift by which the formal state through the means of legislation accepts the marginalized and discarded informal claim to the forest commons by the indigenous people. A significant contribution of the Forest Rights Act, 2006 in this regard is formal acceptance of the claim to the ancestral lands, community forest resources, and customary territories. By doing this, the Government of India has empowered the gram sabhas to take collective decisions and act an as institutional mechanism to protect the right of the indigenous people. Thus, Forest Rights Act, 2006 is the state’s recognition that legal pluralism regarding the notion of forestland is the ‘fact’ as John Griffith observes about legal pluralism.20 For the formal state legal mechanism, forest is a natural and economic resource. However, for the scheduled tribes, the forestland is a habitat for traditionally long period to which they have attachment due to livelihood, cultural, and religious reasons. The Forest Rights Act, 2006 could also be considered as an example of juristic legal pluralism. Juristic legal pluralism is defined as ‘situations where the official legal system recognizes several other legal orders and sets out to determine which norms of these legal orders will apply to this phenomenon of state recognition of the customary informal norms. Thus, the official legal system provides an operating environment for the plural legal orders’.21 FREE, PRIOR AND INFORMED CONSENT AND SIGNIFICANCE OF GRAM SABHA’S POWER The power vested with gram sabhas pursuant to section 6 of the Forest Rights Act, 2006 to decide regarding the individual and collective claims of the indigenous community over the land helps in the actualization of the rights. This provision helps in establishing the autonomy of the indigenous people’s gram sabha regarding decision-making related to the individual and collective claims over the land. By way of the section 6 of Forest Rights Act, 2006, the principle of Free, Prior and Informed Consent is being incorporated into the legislation. The principle of Free, Prior and Informed Consent is a well-established and significant principle regarding self-determination rights of the indigenous people recognized by the public international law. Self-determination rights are quite well acknowledged in the International Covenant on Civil and Political Rights, 1966 and International Covenant on Social, Economic and Cultural Rights, 1966.22 Tara Ward states regarding the indigenous people, ‘in order to be meaningful, self-determination must include economic self-determination, which ultimately involves control over traditional lands, territories and resources. As an extension of these rights, indigenous peoples must have the right to grant or withhold consent to certain development projects within their lands, and which impact their resources’.23 This right of prior consultation with the indigenous people helps in furthering the formal recognition of the right over the forestland for scheduled tribes. Without the provision for Free, Prior and Informed Consent in the Forest Rights Act, 2006, the formal recognition of right of forest-dwelling scheduled tribes would not be effective. The Article 6 of International Labour Organisation Convention No. 169 (Indigenous and Tribal Peoples Convention, 1989) also emphasizes the significance of consultation with indigenous people. Article 6(a) of the ILO Convention No. 169 states that for the protection of indigenous people, it is important to ‘consult the peoples concerned, through appropriate procedures and in particular, through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly’. Furthermore, the Article 10 of United Nations Declaration on the Rights of Indigenous People, 2007 has clearly highlighted the significance of Free, Prior and Informed Consent of indigenous people in case of displacement.24 The section 6 of the Forest Rights Act, 2006, by incorporating the Free, Prior and Informed Consent, has translated the customary right of the forest-dwelling scheduled tribes over their traditional habitat into a legal entitlement. Now, forest-dwelling scheduled tribe could exercise the right against any of the state or any private action, which could threaten to evict or throw them out their forestland, through the institution of gram sabhas. Empowering the gram sabhas as an important formal institutional mechanism is a significant measure from juristic pluralism perspective. The gram sabhas need to be informed about the developmental activities, natural resources extraction, and other such activities likely to affect the interest of the indigenous people over the forestland resources. Forest Rights Act, 2006 also made it mandatory to take consent from the gram sabhas in case of any action that have the interest over forest land and could impact upon the indigenous community. This development is significant as Parasuram Tamang points out ‘development projects and operations, legal and administrative regimes have had and continue to have a devastating impact on indigenous peoples, undermining their ability to sustain themselves physically and culturally’.25 In case the claims of the indigenous people had remained in sphere of informal norms, the indigenous community would not be in a position to exercise the rights. In the case of Orissa Mining Corporation v. Ministry of Environment and Forest,26 the Supreme Court looked into the issue of rights of the indigenous people regarding forest land based on customary claim. The Supreme Court observed that the scheduled tribes ‘have a right to maintain their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands’.27 Furthermore, the Supreme Court acknowledged the historical injustice done to the scheduled tribes considering the background objective of Forest Rights Act, 2006, which was blatantly violated. The Supreme Court noted that ‘the Forest Rights Act has been enacted conferring powers on the Gram Sabha constituted under the Act to protect the community resources, individual rights, cultural and religious rights’.28 The Supreme Court’s entire judgement had the rights provided in the Forest Rights Act, 2006 as its edifice. This is evident from the following observation that Supreme Court of India made on the Forest Rights Act, 2006: We have to bear in mind the above objects and reasons, while interpreting various provisions of the Forest Rights Act, which is a social welfare or remedial statute. The Act protects a wide range of rights of forest dwellers and STs including the customary rights to use forest land as a community forest resource and not restricted merely to property rights or to areas of habitation.29 The Supreme Court also observed the significant institutional role that gram sabha is supposed to ‘play in safeguarding the customary and religious rights’30 and stated that gram sabha has the power to determine the nature of the individual and community rights. Based on the Forest Right Act, 2006, the Supreme Court held that the gram sabha is the appropriate institutional mechanism to determine the extent of religious and customary community right. Hence, it is only with the consent of the gram sabha that the private corporate interest could take over the forest land for the purpose of bauxite mining. UNDERSTANDING THE SIGNIFICANCE OF FORMAL RECOGNITION OF CUSTOMARY NORMS The formal recognition of customary norms has paved the way for the protection of the indigenous people. This helps us to understand the need for formal legal system to shed the legal centralist perspective to accommodate and recognize the legal pluralistic norms existing in the society. Significance should also be accorded for the recognition of gram sabhas as important institutional mechanism for enforcing the rights. The gram sabha, which is the collective voice of members of the village, could decide the right they have upon the forest land. Bottom-up approach of decision-making has helped in an inclusive understanding of how law operates in the society. Rather than trying to impose state-made bureaucratic institutional mechanism upon the indigenous people, recognizing the existing collective decision-making mechanism of gram sabhas have helped in actualization of the customary claim in the case of Orissa Mining Corporation v. Ministry of Environment and Forest. Hence, the Indian experience points out that the informal institutional mechanism like gram sabha also requires to be recognized as enabling mechanism for protection and empowerment of indigenous people. The powerful intervention of judiciary in the case of Orissa Mining Corporation v. Ministry of Environment and Forest could happen due to formal recognition of the right of forest dwellers through legislation. Without the formal recognition of indigenous peoples’ right through the Forest Rights Act, 2006, hardly any effective judicial intervention would have been possible. The judiciary could assert the religious and cultural right of the indigenous people in an effective manner, due to formal recognition of the rights by formal legal system. Due to the Forest Rights Act, 2006, in the case of Orissa Mining Corporation v. Ministry of Environment and Forest, the Supreme Court of India made it clear that the gram sabha would have the power to decide regarding the collective claims of the indigenous community. Otherwise, the story would have been of a private corporate entity grabbing the land away from indigenous people who could not assert their customary rights. Thus, the recognition of the customary rights of indigenous people under the Forest Rights Act, 2006 have led to an inclusive forest law and policy in India. CONCLUSION The entire discussion regarding the initial legal centralist forest law in India and how the situation changed by way of Forest Rights Act, 2006, to a juristic legal pluralism perspective have a take away for developing countries with indigenous communities. The developing countries in the pursuit of infrastructure development and natural resource extraction could adversely impact the informal customary claims of the indigenous people. With the agenda of privatization, globalization, and liberalization being pushed by the international financial institutions making in-roads into the developing countries, the informal customary rights of indigenous people regarding natural resources such as land become neglected. In this context, it is important for India to proactively understand and recognize the legal pluralistic norms, especially of indigenous community. Recognition of the legal pluralistic views and norms would empower the indigenous people to protect themselves from the vested interested forces of private business interest. It is significant that the Forest Rights Act, 2006 remains and evolves as an enabling tool for protecting the rights of indigenous people. Any change to the edifice of Forest Rights Act, 2006 by diluting the ‘Free, Prior and Informed Consent’ principle and the power of gram sabhas could lead to disastrous result from the indigenous rights perspective. This would also help in asserting the rights of indigenous people against issues such as land grabbing and help them to sustain their livelihoods. Using legislative route is the best way for formal acknowledgement and recognition of the customary claims by indigenous community. Amartya Sen has also advocated for legislating of human rights, as it provides much more relevance for both the individuals and the state.31 Amartya Sen has observed that ‘Human beings in nature no more are born with human rights than they are born fully clothed; rights would have to be acquired through legislation, just as clothes are acquired through tailoring’.32 Hence, every attempt needs to be made to devise and implement appropriate legislative instruments to ensure the realization of the informal customary norms of indigenous people by the formal legal system. The Indian experience also points out that the institutional mechanism like gram sabha requires to be recognized as enabling mechanism for the protection and empowerment of indigenous people. Footnotes 1 John Griffiths has defined legal centralism as a state of affair by which ‘all law is and should be state-sponsored law, uniform for all persons, exclusive of all other law and administered by a single set of state institutions’. See J Griffiths ‘What Is Legal Pluralism?’ [1986] The Journal of Legal Pluralism and Unofficial Law 18, 1. 2 Forest Rights Act, 2006 (India), section 2(g) defines gram sabha as ‘a village assembly which shall consist of all adult members of a village’. 3 V Xaxa ‘Tribes as Indigenous People of India’ [1999] Economic & Political Weekly 34, 3589. 4 Department of Social Security ‘The Report of the Advisory Committee on the Revision of the Lists of Scheduled Caste and Scheduled Tribes’ (Government of India) <http://www.tribal.nic.in/writereaddata/AnnualReport/LokurCommitteeReport.pdf> (5 March 2018). 5 International Work Group for Indigenous Affairs Indigenous World: 1999–2000 (IWGIA Copenhagen 2000). 6 A Konar ‘Tribal Communities and Their Age-Old Sacred Groves: A Fair Fieldwork in the Purulia District of West Bengal, India’ [2010] Studies of Tribes and Tribals 8, 1. 7 Amnesty International ‘Don’t Mine Us Out of Existence, Bauxite Mine and Refinery Devastate Lives In India’ (Amnesty International 2010) <https://www.amnesty.org/en/documents/ASA20/001/2010/en/> (5 March 2018). 8 A Roy and S Mukherjee ‘Forest Rights Act, 2006: Settling Land, Unsettling Conservationists’ [2008] NUJS Law Review 1, 293. 9 Ibid. 10 L Bhullar ‘Indian Forest Rights Act 2006: A Critical Appraisal’ [2008] Law Environment & Development Journal 4, 396. 11 Preamble of the Indian Forest Act, 1927. 12 Improving Institutions Pro-Poor Growth ‘Redressing “Historical Injustice” Through the Indian Forest Rights Act 2006: A Historical Institutional Analysis of Contemporary Forest Rights Reform’ (University of Manchester 2008) <http://www.ippg.org.uk/papers/dp27.pdf> (3 May 2017). 13 T Das and A Kothari ‘Forest Rights and Conservation in India’ in H Jonas, H Jonas, and S Subramanian (eds) The Right to Responsibility: Resisting and Engaging Development, Conservation, and the Law in Asia (Natural Justice and United Nations University—Institute of Advanced Studies Malaysia 2013). 14 Griffiths (n 1). 15 Ibid. 16 Das and Kothari(n 13). 17 Forest Rights Act, 2006 (India), section 3(a). 18 Forest Rights Act, 2006 (India), section 3(i). 19 Forest Rights Act, 2006 (India), section 6 reads as follows: ‘The Gram Sabha shall be the authority to initiate the process for determining the nature and extent of individual or community vest forest rights or both’. 20 Brain Tamanaha quotes John Griffith who states ‘Legal pluralism is the name of a social state of affairs and it is a characteristic which can be predicated of a social group. It is not the name of a doctrine or a theory or an ideology’, see B Tamanaha ‘Understanding Legal Pluralism: Past to Present, Local to Global’ [2008] Sydney Law Review 30, 375. 21 P Kameri-Mbote ‘Women, Land Rights and the Environment: The Kenyan Experience’ (2006) Development 49, 43. 22 Common Art. I of the ICCPR, 1966 and ICSECR, 1966 states that ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. 23 T Ward ‘The Right to Free, Prior, and Informed Consent: Indigenous Peoples Participation Rights within International Law’ [2011] Northwestern Journal of International Human Rights 10, 54. 24 Article 10, United Nations Declaration on the Rights of Indigenous People, 2007 reads as follows: ‘Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the Free, Prior and Informed Consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return’. 25 P Tamang ‘An Overview of the Principle of Free, Prior and Informed Consent and Indigenous Peoples in International and Domestic Law and Practices’ (Department of Economic and Social Affairs 2005) <http://www.un.org/esa/socdev/unpfii/documents/workshop_FPIC_tamang.doc> (accessed 3 May 2017). 26 Orissa Mining Corporation v. Ministry of Environment and Forest, [2013] 6 Supreme Court Reporter 881 (India). 27 Ibid. 28 Ibid. 29 Ibid. 30 Supreme Court (n 26). 31 A Sen ‘Elements of a Theory of Human Rights’ [2004] Philosophy & Public Affairs 32, 315. 32 A Sen Development as Freedom (Oxford University Press London 1999). © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Statute Law Review Oxford University Press

Indian Forest Rights Legislation: Significance of Recognizing the Legal Pluralism for Indigenous Peoples Rights

Loading next page...
 
/lp/ou_press/indian-forest-rights-legislation-significance-of-recognizing-the-legal-OmTA4FoVzE
Publisher
Oxford University Press
Copyright
© The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.
ISSN
0144-3593
eISSN
1464-3863
D.O.I.
10.1093/slr/hmy010
Publisher site
See Article on Publisher Site

Abstract

Abstract Indigenous people’s traditional customary claim over the forest land was not accepted by the formal legal mechanism in India for a long period of time. The underlying rationale for the claim is livelihood, religious, and cultural reasons. The indigenous people’s claims remained as informal norm, which were not accepted by the formal state legal system in India. Discriminating legal centralism was existing in the area of forest governance and policy till the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act was enacted in 2006. The Forest Rights Act, 2006 has brought a paradigm shift in the entire approach of law towards the indigenous people and acknowledged the rights of the indigenous people. This article makes an attempt to understand the significance of recognition of legal pluralistic norms through legislation. INTRODUCTION Indigenous people’s traditional customary claim over the forest land due to the cultural, religious, and livelihood reasons was not accepted by the formal legal mechanism in India for a long period of time. Until Scheduled Tribes and Other Traditional Forest Dwellers Recognition of Forest Rights Act was enacted in 2006, the claim for collective rights regarding forest land by the indigenous people in India, which formed an integral part of their livelihood needs and religious and cultural practices, was existing only as informal customary norm. The formal legal system failed to acknowledge the cultural and religious rights of indigenous communities over the land on which they were traditionally living for generations. The Indian legal system followed the top-down ‘legal centralist’1 way of perceiving and conceiving the forest law till 2006, and hence, the forest law and policy in India was completely ignoring the indigenous people’s traditional claim over the forest land. The Scheduled Tribes and Other Traditional Forest Dwellers Recognition of Forest Rights Act, 2006 (Forest Rights Act, 2006) have led to a paradigm shift in the restrictive way customary informal norms were perceived by the forest law and policy in India. The Forest Rights Act, 2006 provides for the recognition of individual and community claims of indigenous peoples over the forest land. The section 6 of the Forest Rights Act, 2006 empowers the gram sabha2 (village assembly) to decide regarding the individual and collective claims of the indigenous community over the land. The Forest Rights Act, 2006 is to be acknowledged as a pioneering formal legislation, which recognizes the informal customary claims of indigenous community. It is important to note that the ‘Free, Prior and Informed Consent’ principle, which is well acknowledged in the United Nations Declaration on the Rights of Indigenous Peoples, 2007 and International Labour Organization’s (ILO) Indigenous and Tribal Peoples Convention, 1989, is brought into section 6 of Forest Rights Act, 2006 by recognizing the gram sabha as an enabling decision-making mechanism. This article aims at illustrating the significance of recognizing legal pluralism for protecting indigenous people’s rights. This article starts with a brief overview of how the legal centralist approach had been adversely impacting the indigenous people’s rights in India. Furthermore, the legal centralism approach in forest law and the paradigm shift in the approach with the enactment of Forest Rights Act, 2006 are analysed in the article. The article then discusses the significance of recognizing the Free, Prior and Informed Consent and vesting the power with the gram sabhas for the protection of indigenous people’s rights. In the final part, the article highlights the significance of the formal recognition of customary norms and how the formal recognition of customary norms through the Forest Rights Act, 2006 helped the indigenous community to determine their interest over the land. INDIGENOUS PEOPLES RIGHTS IN INDIA AND LEGAL CENTRALIST APPROACH Indigenous people in the Indian context are usually referred to as adivasis or vanvasis.3 The fact is that there is no one set of people who could be considered as ‘indigenous’ in the Indian context. Hence, indigenous people in India do not confine to one homogeneous set of people or community. The Indian legal system refers to the indigenous people as ‘scheduled tribes’. Accordingly, indigenous people and scheduled tribes are synonymously and interchangeably used in this article. Article 342 of the Constitution of India, 1950 describes the procedure by which the state could notify a community as a scheduled tribe. The procedure provided in the Article 342 is as follows: (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. The Constitution of India, 1950 only provides the above procedure but is silent on the aspect of the criteria that need to be used for the purpose of ascertaining whether a community is ‘tribal’ or not. In this regard, Lokur Committee appointed by the Government of India has provided the following criteria: ‘indications of primitive traits; distinctive culture; shyness of contact with the community at large; geographical isolation; and backwardness’.4 The above process of notifying scheduled tribes could be understood as the character of a ‘legal centralist’ approach. Here, the entire power of identifying and ascertaining who would be designated as scheduled tribes, the Indian equivalent of indigenous people, completely vest with the state, based on notification by the state entity and based on criteria provided by the state. Adopting this legal centralist approach, the Government in India is not in a position to understand the true needs and customary practices of the indigenous people. This legal centralist approach was the primary reason for non-inclusive approach to informal customary norms regarding land and cultural and religious practices of the indigenous community in India for a long period. The scheduled tribes have deep attachment and engagement with the land and ecosystem in which they inhabit. It is important to note that most of the habitation of the scheduled tribes in India is within and near the forest area. Thus, there are scheduled tribes who dwell in the forest and fringes of the forest. For these scheduled tribes, attachment to the land and forest is primarily for their livelihood, which also have close link with their cultural and religious practices. The International Working Group for Indigenous Affairs clearly captures the emotion and sentiment of indigenous people of India, which quote: ‘We are people with distinct historical, political, and cultural identities. We are united by our histories as distinct societies, by our languages, laws, traditions, and unique spiritual and economic relationships with our lands and territories’.5 A classic example of the cultural and religious attachment of the indigenous people in India is the practice of maintaining sacred grove. Sacred groves are patch of forest kept undisturbed and considered sacred by the indigenous community as a traditional practice.6 Sacred groves are considered auspicious place for worship, having the presence of god/goddess. Many indigenous tribes in India in regions such as West Bengal and Northeastern states observe this practice. Even in certain parts of the states of Kerala and Karnataka, such practices exist. However, the formal legal system in India had not given due attention for a long period to the cultural, religious linkage, and attachment the indigenous people have regarding their land. This is evidently not reflected in the forest law and policy, till the time Forest Rights Act, 2006 was enacted. Even though the Schedule V of the Constitution of India, 1950 provides special power to the state to ensure the welfare of scheduled tribes, the forest law and policy in India was in total disregard of the Schedule V requirement until the enactment of Forest Rights Act, 2006. Because of lack of formal recognition of the customary norms of the indigenous people regarding right to land, there has been rampant exploitation of the indigenous people by way of land acquisition by the government in the pretext of development. Interestingly, forest areas in which the indigenous people dwell were also acquired by the Government for the purpose of extraction of natural resources and for setting up of the extractive industries.7 There has been no ‘Free, Prior and Informed Consent’ procedure followed in the process of land acquisition from the indigenous people. Indian state had been constantly denying the pluralistic demands of indigenous people and had been maintaining the stand that all indigenous people in India have been integrated at the international stage. Coupled with this fact, the legal centralist approach of accommodating only the formal laws in India has been pushed by mainstream notion of development, based on maximum extraction of natural resources. This notion is in conflict with the interest of scheduled tribes, who want their attachment with the land to be preserved. The lack of legal pluralistic understanding in the formal laws and presence of centralist legal structure in India is quite evident. Laws are being tilted towards use of natural resources and are accommodative of the mainstream understanding of human development based on increased consumption. This mainstream interest is being imposed on the indigenous communities. OVERVIEW OF LEGAL CENTRALISM IN INDIAN FOREST LAWS The forest law and policy in India had emerged during the colonial period under British rule. The main objective of the forest law and policy in India was revenue generation from the timber and forest products and not resource conservation, per se. The literature regarding forest laws in India have pointed out that impact of British forest law and policy ‘was to increase and concretise State control over forests, which enabled to further exploit forests and supplement State revenue’.8 The interest, rights, and claims of indigenous community regarding forest land did not find a place in the forest laws and policies. In fact, the forest law perceived the tribal communities as outsiders who may hinder the revenue generation process for the state. Furthermore, even during post-independence stage, there was no major shift in the formal state-centric laws. This is evident from the analysis of the forest legislations in India. During the pre-British colonial period in India, there was no clear codified legal regulation regarding the forest.9 But it is important to note that the relationship that was in existence between the tribal community and forest has been characterized by co-existence.10 The British colonial rulers enacted the forest law in 1865 basically to establish state control over the forest resources. Furthermore, the Indian Forest Act, 1878 revised in 1927 was enacted consolidating the laws relating to forest. The primary objective of the legislation is to ‘consolidate the law relating to forests, the transit of forest-produce and the duty to be levied on timber and other forest-produce’.11 The Forest Policy Resolution, 1894 also had increasing state control over forest and had commercialization of forest as its main motive. The entire orientation of the forest laws during the British period has totally ignored the interest of tribal community. Here the British era could be seen as the initial starting point for state centralist law approach, which slowly discarded the customary norms of indigenous people. Informal law and norms relating to community claim over the forest land are thus slowly rooted out. The ‘local people’s customary forest use became an obstruction to the enterprise’, and the entire process of separating the indigenous people from forest is being equated to ethnic cleansing.12 Moreover, it can be observed that even after independence, there was no significant shift in the conceptualization of indigenous communities and their rights in the country. India continued with the Indian Forest Act, 1927, which was conceptualized during the colonial period. The Forest Policy, 1952 treated forest to be more of national economic resource, as timber could be sourced. The significance of linkage of indigenous communities with the forest was again totally ignored in the policymaking. The Wildlife Act, 1972 and the Forest Conservation Act, 1980 are understood as significant measures in the case of forest conservation in India. But the most disturbing fact is that these legislations have approached conservation only from an environmental perspective, turning a blind eye towards the livelihood needs and practices of scheduled tribes. In fact, these legislations also had led to the treatment of scheduled tribes as encroachers of the forest and as hindrance to the conservation of flora and fauna of the forest. As academic literature clearly points out, the forest conservation legislations have ‘despite laudable environmental objectives, advanced the process of consolidation and centralisation of forest governance and the process of rights deprivation. Estimates of eviction suggest that between 100,000 and 300,000 people were evicted from protected areas at different times and several million more deprived fully or partially of their sources of livelihood and survival’.13 In this context, Indian legal centralist perspective has been categorically denying the right of indigenous people. The traditional forest-dwelling communities could be evicted, and the land could be taken over by the state at the whims and fancies of the government, without any consent of these tribal communities. Developmental activities such as natural resources mining and large-dam building with large-scale evictions have adversely affected the habitat and livelihood avenues of indigenous people. The livelihood needs and religious and cultural practices were not the concerns of formal law made by the state. Thus, a significant failure of the forest law in India till 2006 was the denial of the right for the forest-dwelling scheduled tribes regarding their land and habitat. The above discussion regarding forest laws in India helps in the clear understanding that the legal centralism-based approach was adopted in India. In this context, legal centralism can be further understood as Griffith had described: Law is and should be the law of the state, uniform for all persons, exclusively of all other law, and administered by a single set of state institutions. To the extent that other, lesser normative orderings, such as the church, the family, the voluntary association and the economic organisation exist, they ought to be and in fact are hierarchically subordinate to the law and institutions of the state.14 Here the indigenous people’s traditional customary claim over the forest land due to the cultural, religious, and livelihood reasons was not accepted by the formal legal mechanism in India. The top-down approach of lawmaking without any participation from the people could be attributed as a reason. As a result, the state-made forest laws—Indian Forest Act, 1927, Wildlife Protection Act, 1972, and the Forest Conservation Act 1980—had remained as non-inclusive with top-down approach. These laws attain higher normative standards and the informal customary claims of the indigenous community become hierarchically subordinate to the law, governance, and institutional mechanism envisaged by the Indian states. But the existence of customary informal norms reflects the legal pluralism that is playing out in action. Legal pluralism is understood ‘as that state of affairs, for any social field, in which behaviour pursuant to more than one legal order occurs’.15 FOREST RIGHTS ACT, 2006 AND PARADIGM SHIFT IN FOREST LAW TOWARDS LEGAL PLURALISM The National Forest Policy, 1988 is the first forest policy-related document that adopted an inclusive approach of recognizing the claims of the indigenous community regarding forest land. Slowly with the change in the policy approach, coupled with the active and strong civil society movement calling for recognizing the rights of indigenous people, the state enacted the Forest Rights Act in 2006. The National Forest Policy, 1988 paved the way for the Forest Rights Act, 2006 to be enacted. The National Forest Policy, 1988 had adopted a people-friendly approach rather than a state-centric approach, while acknowledging the fact the tribal people have attachment to the forest. The National Forest Policy, 1988 reflects that the tribal people should be bestowed with the rights that would help further the customary claims regarding the forest. The community-based and common-property regime, which the indigenous community had as a customary practice, was accommodated in the Forest Rights Act, 2006. Scholars have unanimously lauded the Forest Rights Act 2006, and an epitome of the same is the commentary by Dash and Kothari that ‘the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 (FRA) is considered as a legal and political instrument to undo the process of deprivation of forest communities by securing their rights over their ancestral lands, community forest resources, and customary territories’.16 The section 3 of the Forest Rights Act, 2006 clearly provides for vesting of certain individual- or community-based rights to the forest-dwelling scheduled tribes and other traditional forest dwellers. The rights that are provided in the section 3 of the Forest Rights Act, 2006 inter alia include: Right to hold and live in the forest land under the individual or common occupation for habitation or for self-cultivation.17 Rights to protect, regenerate, conserve, or manage any community forest reserves that the individual or community has been traditionally protecting and conserving for sustainable use.18 The Forest Rights Act, 2006 provides proactive rights and protection to the forest-dwelling scheduled tribes. A significant part of this legislation is section 6 of the Forest Rights Act, 2006. The section 6 of the Forest Rights Act, 2006 empowers the gram sabha to decide regarding the individual and collective claims and of the indigenous community over the land.19 Thus, Forest Rights Act, 2006 is a pioneering formal legislation that recognizes the informal customary claims of indigenous community. Empowering the gram sabha as an institutional mechanism for decision-making helps in translating the customary norms into formal legal right. The initiative of the Forest Rights Act, 2006 to provide power to gram sabhas is a great shift towards the legal pluralism perspective. The legal centralism approach slowly moves away, and the state that is ready to accept the informal customary norms of the forest-dwelling scheduled tribes slowly emerges. This is a pivotal shift by which the formal state through the means of legislation accepts the marginalized and discarded informal claim to the forest commons by the indigenous people. A significant contribution of the Forest Rights Act, 2006 in this regard is formal acceptance of the claim to the ancestral lands, community forest resources, and customary territories. By doing this, the Government of India has empowered the gram sabhas to take collective decisions and act an as institutional mechanism to protect the right of the indigenous people. Thus, Forest Rights Act, 2006 is the state’s recognition that legal pluralism regarding the notion of forestland is the ‘fact’ as John Griffith observes about legal pluralism.20 For the formal state legal mechanism, forest is a natural and economic resource. However, for the scheduled tribes, the forestland is a habitat for traditionally long period to which they have attachment due to livelihood, cultural, and religious reasons. The Forest Rights Act, 2006 could also be considered as an example of juristic legal pluralism. Juristic legal pluralism is defined as ‘situations where the official legal system recognizes several other legal orders and sets out to determine which norms of these legal orders will apply to this phenomenon of state recognition of the customary informal norms. Thus, the official legal system provides an operating environment for the plural legal orders’.21 FREE, PRIOR AND INFORMED CONSENT AND SIGNIFICANCE OF GRAM SABHA’S POWER The power vested with gram sabhas pursuant to section 6 of the Forest Rights Act, 2006 to decide regarding the individual and collective claims of the indigenous community over the land helps in the actualization of the rights. This provision helps in establishing the autonomy of the indigenous people’s gram sabha regarding decision-making related to the individual and collective claims over the land. By way of the section 6 of Forest Rights Act, 2006, the principle of Free, Prior and Informed Consent is being incorporated into the legislation. The principle of Free, Prior and Informed Consent is a well-established and significant principle regarding self-determination rights of the indigenous people recognized by the public international law. Self-determination rights are quite well acknowledged in the International Covenant on Civil and Political Rights, 1966 and International Covenant on Social, Economic and Cultural Rights, 1966.22 Tara Ward states regarding the indigenous people, ‘in order to be meaningful, self-determination must include economic self-determination, which ultimately involves control over traditional lands, territories and resources. As an extension of these rights, indigenous peoples must have the right to grant or withhold consent to certain development projects within their lands, and which impact their resources’.23 This right of prior consultation with the indigenous people helps in furthering the formal recognition of the right over the forestland for scheduled tribes. Without the provision for Free, Prior and Informed Consent in the Forest Rights Act, 2006, the formal recognition of right of forest-dwelling scheduled tribes would not be effective. The Article 6 of International Labour Organisation Convention No. 169 (Indigenous and Tribal Peoples Convention, 1989) also emphasizes the significance of consultation with indigenous people. Article 6(a) of the ILO Convention No. 169 states that for the protection of indigenous people, it is important to ‘consult the peoples concerned, through appropriate procedures and in particular, through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly’. Furthermore, the Article 10 of United Nations Declaration on the Rights of Indigenous People, 2007 has clearly highlighted the significance of Free, Prior and Informed Consent of indigenous people in case of displacement.24 The section 6 of the Forest Rights Act, 2006, by incorporating the Free, Prior and Informed Consent, has translated the customary right of the forest-dwelling scheduled tribes over their traditional habitat into a legal entitlement. Now, forest-dwelling scheduled tribe could exercise the right against any of the state or any private action, which could threaten to evict or throw them out their forestland, through the institution of gram sabhas. Empowering the gram sabhas as an important formal institutional mechanism is a significant measure from juristic pluralism perspective. The gram sabhas need to be informed about the developmental activities, natural resources extraction, and other such activities likely to affect the interest of the indigenous people over the forestland resources. Forest Rights Act, 2006 also made it mandatory to take consent from the gram sabhas in case of any action that have the interest over forest land and could impact upon the indigenous community. This development is significant as Parasuram Tamang points out ‘development projects and operations, legal and administrative regimes have had and continue to have a devastating impact on indigenous peoples, undermining their ability to sustain themselves physically and culturally’.25 In case the claims of the indigenous people had remained in sphere of informal norms, the indigenous community would not be in a position to exercise the rights. In the case of Orissa Mining Corporation v. Ministry of Environment and Forest,26 the Supreme Court looked into the issue of rights of the indigenous people regarding forest land based on customary claim. The Supreme Court observed that the scheduled tribes ‘have a right to maintain their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands’.27 Furthermore, the Supreme Court acknowledged the historical injustice done to the scheduled tribes considering the background objective of Forest Rights Act, 2006, which was blatantly violated. The Supreme Court noted that ‘the Forest Rights Act has been enacted conferring powers on the Gram Sabha constituted under the Act to protect the community resources, individual rights, cultural and religious rights’.28 The Supreme Court’s entire judgement had the rights provided in the Forest Rights Act, 2006 as its edifice. This is evident from the following observation that Supreme Court of India made on the Forest Rights Act, 2006: We have to bear in mind the above objects and reasons, while interpreting various provisions of the Forest Rights Act, which is a social welfare or remedial statute. The Act protects a wide range of rights of forest dwellers and STs including the customary rights to use forest land as a community forest resource and not restricted merely to property rights or to areas of habitation.29 The Supreme Court also observed the significant institutional role that gram sabha is supposed to ‘play in safeguarding the customary and religious rights’30 and stated that gram sabha has the power to determine the nature of the individual and community rights. Based on the Forest Right Act, 2006, the Supreme Court held that the gram sabha is the appropriate institutional mechanism to determine the extent of religious and customary community right. Hence, it is only with the consent of the gram sabha that the private corporate interest could take over the forest land for the purpose of bauxite mining. UNDERSTANDING THE SIGNIFICANCE OF FORMAL RECOGNITION OF CUSTOMARY NORMS The formal recognition of customary norms has paved the way for the protection of the indigenous people. This helps us to understand the need for formal legal system to shed the legal centralist perspective to accommodate and recognize the legal pluralistic norms existing in the society. Significance should also be accorded for the recognition of gram sabhas as important institutional mechanism for enforcing the rights. The gram sabha, which is the collective voice of members of the village, could decide the right they have upon the forest land. Bottom-up approach of decision-making has helped in an inclusive understanding of how law operates in the society. Rather than trying to impose state-made bureaucratic institutional mechanism upon the indigenous people, recognizing the existing collective decision-making mechanism of gram sabhas have helped in actualization of the customary claim in the case of Orissa Mining Corporation v. Ministry of Environment and Forest. Hence, the Indian experience points out that the informal institutional mechanism like gram sabha also requires to be recognized as enabling mechanism for protection and empowerment of indigenous people. The powerful intervention of judiciary in the case of Orissa Mining Corporation v. Ministry of Environment and Forest could happen due to formal recognition of the right of forest dwellers through legislation. Without the formal recognition of indigenous peoples’ right through the Forest Rights Act, 2006, hardly any effective judicial intervention would have been possible. The judiciary could assert the religious and cultural right of the indigenous people in an effective manner, due to formal recognition of the rights by formal legal system. Due to the Forest Rights Act, 2006, in the case of Orissa Mining Corporation v. Ministry of Environment and Forest, the Supreme Court of India made it clear that the gram sabha would have the power to decide regarding the collective claims of the indigenous community. Otherwise, the story would have been of a private corporate entity grabbing the land away from indigenous people who could not assert their customary rights. Thus, the recognition of the customary rights of indigenous people under the Forest Rights Act, 2006 have led to an inclusive forest law and policy in India. CONCLUSION The entire discussion regarding the initial legal centralist forest law in India and how the situation changed by way of Forest Rights Act, 2006, to a juristic legal pluralism perspective have a take away for developing countries with indigenous communities. The developing countries in the pursuit of infrastructure development and natural resource extraction could adversely impact the informal customary claims of the indigenous people. With the agenda of privatization, globalization, and liberalization being pushed by the international financial institutions making in-roads into the developing countries, the informal customary rights of indigenous people regarding natural resources such as land become neglected. In this context, it is important for India to proactively understand and recognize the legal pluralistic norms, especially of indigenous community. Recognition of the legal pluralistic views and norms would empower the indigenous people to protect themselves from the vested interested forces of private business interest. It is significant that the Forest Rights Act, 2006 remains and evolves as an enabling tool for protecting the rights of indigenous people. Any change to the edifice of Forest Rights Act, 2006 by diluting the ‘Free, Prior and Informed Consent’ principle and the power of gram sabhas could lead to disastrous result from the indigenous rights perspective. This would also help in asserting the rights of indigenous people against issues such as land grabbing and help them to sustain their livelihoods. Using legislative route is the best way for formal acknowledgement and recognition of the customary claims by indigenous community. Amartya Sen has also advocated for legislating of human rights, as it provides much more relevance for both the individuals and the state.31 Amartya Sen has observed that ‘Human beings in nature no more are born with human rights than they are born fully clothed; rights would have to be acquired through legislation, just as clothes are acquired through tailoring’.32 Hence, every attempt needs to be made to devise and implement appropriate legislative instruments to ensure the realization of the informal customary norms of indigenous people by the formal legal system. The Indian experience also points out that the institutional mechanism like gram sabha requires to be recognized as enabling mechanism for the protection and empowerment of indigenous people. Footnotes 1 John Griffiths has defined legal centralism as a state of affair by which ‘all law is and should be state-sponsored law, uniform for all persons, exclusive of all other law and administered by a single set of state institutions’. See J Griffiths ‘What Is Legal Pluralism?’ [1986] The Journal of Legal Pluralism and Unofficial Law 18, 1. 2 Forest Rights Act, 2006 (India), section 2(g) defines gram sabha as ‘a village assembly which shall consist of all adult members of a village’. 3 V Xaxa ‘Tribes as Indigenous People of India’ [1999] Economic & Political Weekly 34, 3589. 4 Department of Social Security ‘The Report of the Advisory Committee on the Revision of the Lists of Scheduled Caste and Scheduled Tribes’ (Government of India) <http://www.tribal.nic.in/writereaddata/AnnualReport/LokurCommitteeReport.pdf> (5 March 2018). 5 International Work Group for Indigenous Affairs Indigenous World: 1999–2000 (IWGIA Copenhagen 2000). 6 A Konar ‘Tribal Communities and Their Age-Old Sacred Groves: A Fair Fieldwork in the Purulia District of West Bengal, India’ [2010] Studies of Tribes and Tribals 8, 1. 7 Amnesty International ‘Don’t Mine Us Out of Existence, Bauxite Mine and Refinery Devastate Lives In India’ (Amnesty International 2010) <https://www.amnesty.org/en/documents/ASA20/001/2010/en/> (5 March 2018). 8 A Roy and S Mukherjee ‘Forest Rights Act, 2006: Settling Land, Unsettling Conservationists’ [2008] NUJS Law Review 1, 293. 9 Ibid. 10 L Bhullar ‘Indian Forest Rights Act 2006: A Critical Appraisal’ [2008] Law Environment & Development Journal 4, 396. 11 Preamble of the Indian Forest Act, 1927. 12 Improving Institutions Pro-Poor Growth ‘Redressing “Historical Injustice” Through the Indian Forest Rights Act 2006: A Historical Institutional Analysis of Contemporary Forest Rights Reform’ (University of Manchester 2008) <http://www.ippg.org.uk/papers/dp27.pdf> (3 May 2017). 13 T Das and A Kothari ‘Forest Rights and Conservation in India’ in H Jonas, H Jonas, and S Subramanian (eds) The Right to Responsibility: Resisting and Engaging Development, Conservation, and the Law in Asia (Natural Justice and United Nations University—Institute of Advanced Studies Malaysia 2013). 14 Griffiths (n 1). 15 Ibid. 16 Das and Kothari(n 13). 17 Forest Rights Act, 2006 (India), section 3(a). 18 Forest Rights Act, 2006 (India), section 3(i). 19 Forest Rights Act, 2006 (India), section 6 reads as follows: ‘The Gram Sabha shall be the authority to initiate the process for determining the nature and extent of individual or community vest forest rights or both’. 20 Brain Tamanaha quotes John Griffith who states ‘Legal pluralism is the name of a social state of affairs and it is a characteristic which can be predicated of a social group. It is not the name of a doctrine or a theory or an ideology’, see B Tamanaha ‘Understanding Legal Pluralism: Past to Present, Local to Global’ [2008] Sydney Law Review 30, 375. 21 P Kameri-Mbote ‘Women, Land Rights and the Environment: The Kenyan Experience’ (2006) Development 49, 43. 22 Common Art. I of the ICCPR, 1966 and ICSECR, 1966 states that ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. 23 T Ward ‘The Right to Free, Prior, and Informed Consent: Indigenous Peoples Participation Rights within International Law’ [2011] Northwestern Journal of International Human Rights 10, 54. 24 Article 10, United Nations Declaration on the Rights of Indigenous People, 2007 reads as follows: ‘Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the Free, Prior and Informed Consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return’. 25 P Tamang ‘An Overview of the Principle of Free, Prior and Informed Consent and Indigenous Peoples in International and Domestic Law and Practices’ (Department of Economic and Social Affairs 2005) <http://www.un.org/esa/socdev/unpfii/documents/workshop_FPIC_tamang.doc> (accessed 3 May 2017). 26 Orissa Mining Corporation v. Ministry of Environment and Forest, [2013] 6 Supreme Court Reporter 881 (India). 27 Ibid. 28 Ibid. 29 Ibid. 30 Supreme Court (n 26). 31 A Sen ‘Elements of a Theory of Human Rights’ [2004] Philosophy & Public Affairs 32, 315. 32 A Sen Development as Freedom (Oxford University Press London 1999). © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Journal

Statute Law ReviewOxford University Press

Published: May 19, 2018

There are no references for this article.

You’re reading a free preview. Subscribe to read the entire article.


DeepDyve is your
personal research library

It’s your single place to instantly
discover and read the research
that matters to you.

Enjoy affordable access to
over 18 million articles from more than
15,000 peer-reviewed journals.

All for just $49/month

Explore the DeepDyve Library

Search

Query the DeepDyve database, plus search all of PubMed and Google Scholar seamlessly

Organize

Save any article or search result from DeepDyve, PubMed, and Google Scholar... all in one place.

Access

Get unlimited, online access to over 18 million full-text articles from more than 15,000 scientific journals.

Your journals are on DeepDyve

Read from thousands of the leading scholarly journals from SpringerNature, Elsevier, Wiley-Blackwell, Oxford University Press and more.

All the latest content is available, no embargo periods.

See the journals in your area

DeepDyve

Freelancer

DeepDyve

Pro

Price

FREE

$49/month
$360/year

Save searches from
Google Scholar,
PubMed

Create lists to
organize your research

Export lists, citations

Read DeepDyve articles

Abstract access only

Unlimited access to over
18 million full-text articles

Print

20 pages / month

PDF Discount

20% off