ABSTRACT
The story of the forest-dwelling peoples of central and eastern India, through successive colonial and postcolonial regimes, is a story of their marginality, and their dependence on the largesse of the forest bureaucracy, which still effectively controls the 23 per cent of Indian land legally designated as ‘forest’ (Guha 2012: 10). Though the grid of forest laws devised in the twentieth century – including the Indian Forest Act, 1927, the Wildlife Protection Act, 1972, and the Forest Conservation Act, 1980 – differ in their priorities and approaches, they have worked largely towards further disinheriting tribals1 and other poor forest-dwelling communities of their rights to reside in and access forests (Guha 1994; Dreze 2005). Asher and Agarwal (2007: 12), for example, describe how the cumulative effect of the Wildlife Protection Act and the Forest Conservation Act has been to try to create ‘human-free wilderness zones’, and to ostensibly obstruct the conversion of forest land to ‘non-forest uses’, even as they both provide clauses for such conversion. Both laws have therefore been instrumental in casting forest dwellers as ‘encroachers’ on forest land (Ramnath 2008: 38). Guha (1983) contends that though the impact of colonial and postcolonial forest legislation on forest dwellers and their life-support systems has been ‘uniform’, the social imperatives behind forest policy have changed. While in the colonial period it was the strategic interests of imperialism – and relatedly, the need to construct and maintain the Indian railways – that informed forest policy, in the postcolonial period forest policy has largely been subservient to the interests of a mercantile and industrial bourgeoisie. A major implication of this is that in many areas, tribal people and other forest dwellers are ‘facing harassment and threats of eviction from forest lands and forced relocation or displacement from the areas proposed for development projects without settlement of their rights’ (MoTA 2012: 2). State control of forests in India has thus been an organising principle of their management since the inception of an official Forest Department in 1864 (Hazra 2002). With a few exceptions, like the Joint Forest Management programme of the 1990s, state intervention in forest areas has been characterised by a ‘centralising and exclusionary thrust’ (Guha 1994: 2194; see also Sundar 2000). This principle of state control and management of forests may be said to derive from the assumption that lands which are common property tend to be
overused and left to degenerate, an argument that Garrett Hardin in 1968 pithily encapsulated as ‘the tragedy of the commons’.2 The 1970s and 1980s were decades during which, however, new assumptions about the importance of community control over natural resources began to be formulated (Kumar 2014b), deriving at least in part from the work of Elinor Ostrom and her contemporaries who advocated participatory forms of resource governance. The Recognition of Forest Rights Act, 2006 (hereafter referred to as the RFRA) is an Indian law that took birth in the twin contexts of the increasing alienation of tribals from their lands, and the heightening pitch of activism associated with such alienation. It was envisioned originally as a law that would protect poor and forest-dependent people from arbitrary eviction and displacement by the Forest Department (Kumar and Kerr 2012: 753). While the law has been used for this purpose on numerous occasions, it has also been invoked, in a far more visible and high-profile way, to stymie the proposed activities of extractive rural industries. Speaking especially of the cases of large capital investment3 by POSCO in Jagatsinghpur, Odisha, and Vedanta Aluminium in Lanjigarh, Odisha (on which, more will be said later in this chapter), it is evident that the RFRA has the potential to challenge, if not significantly curtail, the handing over of forest land for industrial purposes without the settlement of rights of people laying prior claim to that land. That said, the continued existence of earlier laws has left uncertainty regarding which law takes precedence – this despite the fact that the RFRA claims to vest forest rights in forest-dwelling Scheduled Tribes and other traditional forest dwellers, ‘notwithstanding anything contained in any other law for the time being in force’ (RFRA 2006: sec 4 (1)). This chapter is about the challenges of providing proof under the RFRA’s ‘habitat right’, a form of community right (as opposed to individual right) available to pre-agricultural communities and to Particularly Vulnerable Tribal Groups (PVTGs). While there is growing awareness among forest-dwellers about habitat rights, the definition provided in the Act and accompanying rules is so vaguely enunciated, and the procedures for filing for the same so conspicuously absent, that the right suggests a realm of imaginative (if not exasperating) possibility to forest dwelling communities who aim for insurance against the loss of their territory to state or industrial ventures. With reference to a case study in Niyamgiri, Odisha, I propose that establishing claims over land under the habitat right are accompanied by curious productions and demonstrations of proof of indigeneity that have come to include the performance of identity. The layout of this chapter is as follows: First, it considers the provenance and history of formation of the RFRA. It then discusses aspects of the text and context of the RFRA and highlights some ways in which it attempts to negotiate between the recognition of indigenous custom, and the integration of bearers of that custom within a system of technocratic proof-production. While acknowledging that the law is progressive in many respects, this chapter contends that the RFRA imparts a legacy of inconsistencies and elisions that could seriously affect its implementation on the ground. Finally, it considers the application of the RFRA in a context of proposed extractive rural industrialisation in the
Niyamgiri Hills of Odisha. It shows, in conclusion, and with reference to findings from my fieldwork, that the obligation to furnish proof to register their eligibility under the RFRA has led to some curious cultural innovations among communities living in the Niyamgiri Hills. These innovations suggest not only, in somewhat simple fashion, that laws interact with and leave their impress upon cultures, but also that the ambiguities of proof-production under their dispensation lead to new pressures to ‘perform’ certain state-endorsed categories of belonging.
