Year: 2021
Type: article
Abstract: It was a warm and muggy day as I made my way into the Dalit (who were formerly known by the derogatory term of ‘untouchables’) basti or colony in Kandhamal, Odisha in the summer of 2015. I was there as an environmental lawyer to understand whether Dalit communities living in forest areas were able to use a progressive law called the Forest Rights Act 2006 (FRA) to gain rights over land. An issue that I will discuss in more detail later in this piece. As I walked through the tiny lanes, I noticed that Dalit forest-dwelling communities were segregated from the rest of the village who were predominantly composed of members of a higher caste and Adivasi communities. When I sat down to speak with the village elder, he described the situation as follows: This is a mixed village with different communities living in it, yet we live separately and have limited access to water. Some families still practice untouchability. We are denied entry into the sacred groves too. It is assumed that in forest areas untouchability is not practiced but that is untrue, here untouchability extends to accessing the forest itself. 1 Dalit literally translates to the broken people; the caste system and the ugliness of its exclusionary framework is best described by Ambedkar as a form of graded inequality2—a graded system that divides benefit and burdens in specific ways between castes placed in hierarchy. It freezes the identity of the individual based on the caste that they are born into without opportunity to move outside of it.3 Dalit communities are said to fall outside the caste system and have historically been subject to practices of untouchability with denial of access to temples, land, and natural resources.4 Despite denial of access to land and resources being an important vector of exclusion, environmental movements and laws in India have not actively addressed this aspect of caste-based discrimination.5 In this piece, I will explore how the seemingly progressive FRA in India, while a product of social movements, failed to include the histories and lived experience of injustice of Dalit forest-dwelling communities. I will then ponder on whether environmental law in India has the capacity to include these different voices and what are the challenges associated with that. I argue that environmental movements which are grounded in a limited understanding of identities that suffer injustice tend to exclude those who do not fit this rigid frame put forth in law. Those who fall outside of this frame are left on the lurch and must find creative ways of implementing progressive environmental laws. Environmental law in India is at an interesting juncture as multiple groups are starting to mobilize the law in the context of the climate crisis, rapid deforestation, and biodiversity loss. Examples can be found of youth led environmental movements, like ‘Fridays for the Future’, engaging in campaigns to hold the state accountable. These include against proposed amendments which weaken the Environmental Impact Assessment notification 2006, and Dalit communities campaigning for rights over land in Gujarat.6 Environmental law in India is thus emerging as an important site of struggle for the inclusion of different voices and their histories of injustice. Environmental movements in India have also been successful in their legal mobilization efforts before the parliament and the courts.7 But environmental law in its effort to include different voices does so by crafting rigid criteria of determining who it includes. It does so against a cultural backdrop. In her piece why Dalits dislike environmentalists, Gail Omvedt speaks to the lack of Dalit representation in leadership of environmental movements and their inability to address the caste question systematically.8 In law, issues of caste-based discrimination have been addressed in India’s anti-discrimination laws like the Schedule Caste and Schedule Tribe Prevention of Atrocities Act 1989. However, discrimination based on land and resources has not been adequately tackled.9 Different voices are accommodated in different laws, ie, Dalit discrimination in specific anti-discrimination legislation and Adivasi rights in environmental law. Such fragmentation of law however does not address a shared experience of injustice like this one that both Dalit and Adivasi forest-dwellers experience in forest areas. The relationship of Dalits with the environment has been determined by the rigid rules and customs that have prevented them from access to water, land, and natural resources. In Kandhamal, Odisha I interviewed Dalit forest-dwellers on their relationship with the forest. One interviewee stated: It is a space of exploitation as the forest department prevents us from accessing the resources that we depend on but further, we are prevented from accessing the sacred groves in these areas and commons too by other community members.10 This is a glimpse into the lived reality of exclusion of Dalit communities in forest areas. Dalit communities suffer from inability to access water and land. The Agricultural Census of 2015–2016 shows that Dalits own less than 9 per cent of the agricultural land.11 In a succinct analysis, Suraj Yengde, a Dalit scholar comments on the degree of landlessness among Dalits as an issue of citizenship. He states: Citizenship requires entitlement to resources, and land is the primary resource. It helps secure dignity. Without land, you are constantly exposed to insecurity. It grants the poetic right of belonging, a powerful declaration of self. It is an assurance and a fallback option.12 The Dalit land question was never seriously considered by the makers of environmental law and its implementing agencies.13 Forest laws in India have operated on the paradigm of exclusionary conservation where the state and forest department are given powers to evict forest-dwellers and restrict their rights to access forest resources. The FRA sought to change this by recognizing the rights of forest-dwellers over forest land and access to minor forest resources as well their right to conserve forest areas.14 The FRA as it was being initially drafted was restricted in its scope to recognize the rights of Scheduled Tribes alone to the exclusion of other forest-dwelling communities. Adivasi communities are included as Scheduled Tribes (ST). Adivasi inclusion also occurs based on state discretion in recognizing them as ST or not.15 Those who fall outside this categorization of ST have limited access the protective rights-based framework that the forest law has to offer. Forest dwellers are a heterogenous community including non-scheduled tribes, Dalits, lower caste communities, and pastoral communities.16 Through ongoing negotiations between the Ministry of Environment and Forest and the Ministry of Tribal Affairs it was agreed that the Act would include non-scheduled tribe communities under the category of Other Traditional Forest-Dwellers (OTFD). The then Ministry of Environment and Forests who were charged with the implementation of laws in forest areas were wary of the privileging one community in terms of access to land and forest rights under the Act over the non-STs. Such disparity in the ability to access protection from the law the then Ministry of Environment and Forests argued would likely to create conflict on the ground.17 The primary challenge with the OTFD categorisation is the evidentiary barrier in accessing forest rights. OTFD communities are required to prove that they have been living and depending on these forest areas for a period of three generations or 75 years.18 Dalit forest-dwelling communities who have historically struggled to gain access to land now find themselves excluded from accessing forest land under the FRA with the inability to produce such evidence.19 The Forest Rights Act Rules 2008 provide that a statement by an elder reduced to writing will qualify as legal evidence, however in interviews with the local bureaucracy in Odisha, who are entrusted with the implementation of the FRA, they state that such evidence does not qualify as hard evidence and thus they cannot recognise the rights of OTFD communities.20 The notion of hard evidence was a recurrent observation that was made during my fieldwork in reference to a statement written by an elder as it was interpreted by the forest bureaucracy as something that could be fabricated to be able to apply for land rights.21 The exclusion of Dalit communities in forest areas, and particularly access to forest land, is embedded in the understanding of OTFD communities as being ‘encroachers’. In an interview with a senior forest officer in Odisha who was overseeing the implementation of the FRA he mentioned that OTFD communities are entering forest areas and claiming land and qualify as encroachers and not legitimate right holders.22 As environmental law emerges as the site of struggle for inclusion it becomes pertinent for environmental movements and drafters of law to listen to different voices, histories and experiences of injustice. The example of Dalit exclusion shows how the lack of sensitivity to questions of caste created a law that prevents Dalit forest dwelling communities from accessing land and thus reinforcing this vector of caste-based exclusion. Environmental law must move away from a monolithic understanding of voice that informs legislative and administrative decision-making to one that is textured and includes multiple axis of marginalization for the law to address. How do we make environmental laws then to include these different voices as different voices continue to be silenced in the process of environmental law making? This poses a challenge for the future of environmental laws. Environmental law making will need to create many avenues for participation for those who will be impacted by it (and possibly benefit from it). These avenues can facilitate the inclusion of different voices which can inform what the law should look like. Such a participatory process should not restrict itself to environmental movements alone as social movements can exclude some communities too. An example of this is the drafting of the FRA which was a product of a social movement called the campaign for survival and dignity which did not adequately consider the aspects of caste-based discrimination.23 Environmental law needs a broader framework for engendering inclusion in the exercise of law making. The work of that framework is never done as the process of environmental law making in India in the recent past has taken a non-deliberative turn where the parliament changes laws without public consultation. An example of such non-deliberative law making is the set of farm laws that failed to consult the farmers across India who continue to protest this legislative decision.24 Dalit forest-dwelling communities have been left then to find creative ways to insert themselves into the protective aspects of the FRA. In Chitrakoot in Uttar Pradesh, the Dalit forest-dwelling communities I interviewed were involved in a land reclamation movement. I asked Mata Dalal to describe what this movement was all about, and he stated: The Forest Rights Act 2006 excludes us although we have lived and depended on these lands. We are mapping land that historically belonged to us and reclaiming it by either beginning or continuing our cultivation. We submit photographs of these cultivated land to be able to get our land rights but that has not been successful. 25 The challenge of inclusion in environmental law and particularly forest law is a difficult proposition though, can all voices be included when land rights are being considered as forests are meant to be preserved too? This is a question that is a cause of concern for conservationists in India. Conservationists in India have argued that forest land, if divided into individual plots of homestead land, will be fragmented. The barriers to inclusion in environmental law are also ecological as conservation law and policies are guided by ecology that aims at restricting human interference of any kind to sensitive landscapes.26 This exclusionary approach to conservation prevents the recognition of forest and land rights in these areas. The assumption of fragmentation of forest land has been challenged by recent studies which show that security of land tenure provides a basis for better conservation outcomes.27 The battle of what conservation means is an ongoing one and one that determines the parameters of inclusion of different groups in relation to forest land and decision-making on conservation. In this short piece, I have shown how environmental laws as they are being drafted can exclude based on a rigid understanding of those who qualify as suffering from a particular form of injustice and those who do not. In environmental law and forest laws in particular ecology, ideas of conservation and non-deliberative process of law-making prevent the inclusion of marginalized communities like Dalits. The question then is if different voices must be listened to for environmental law to develop a sophisticated and pluralistic approach to inclusion, how do we realize such a process? As there are ecological concerns for inclusion, how do we take them on board as laws are being designed? As I ask these questions, I am reminded of the time I spent with Jitu Jakesika, an Adivasi forest-dweller in Bischemkuttack in Odisha who is now leading an anti-caste movement. He spoke of how building alliances are key in an inclusive process of legislative decision-making such that different perspectives are not silenced but instead form a part of holistic understanding on environmental issues and the law.28 I am left wondering what such a process would look like. How will these alliances be built and who decides who gets to be a part of it? Funding was received from the Hindu Center for Politics and Public Policy where I held a fellowship.
Source: Journal of Environmental Law
DOI: 10.1093/jel/eqab030
Author: Arpitha Kodiveri
Institution: New York University
Language: English
Topic: Environmental law and policy
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: bronze
OpenAlex ID: W3205068141