Reflections on Supreme Court order to evict ‘illegitimate’ tribals from the forests

There is an ominous significance to the February 13, 2019 order of the Supreme Court on “illegitimate” forest-dwellers. When we first heard of it, we felt a rising dismay and shock at this judicial legitimation of unparalleled atrocity against the tribals. The order is nothing less than the final legitimised expropriation of the tribal communities (poor landless) under the pressure of rising capitalist industry.

Evidence, history and culture

The order stated that those tribals whose claims for forest pattas were rejected (i.e., whose proof of possession failed to meet the standards of evidence) should be thrown out of the forests. It is assumed implicitly here that a legitimate tribal will have proof. But there is a flaw in this argument.

The question that arises is: what does proof or evidence mean in these circumstances? Is it possible for an individual of a family or community, which had chosen to live outside the boundaries of our modern rural and urban structures, to have what we call proof?

It is precisely a distrust and suspicion of such proofs of possession of property that was the reason for their deciding to find their means of survival outside ‘civilisation’, becoming what we call ‘tribals’.

A colonial Revenue Commissioner in the 1920s understood the uneasiness about the issue of property ownership among tribals very well. He saw that the tribal eschewed property and lived a life on the move simply because he did not know what the sahukar wrote as a debt against his (the tribal’s) name.

The mobility meant that the moneylender could take only what the ‘landless’ tribal offered him each time the instalment was repaid at harvest (perhaps in perpetuity). There was an honesty in the tribal’s engagement: “I don’t trust you, but I will honor your account of my debt”.

The British tried hard and in vain to “settle” the tribal by tying him to a patch of land, but the latter always found a way to resist. It is this fundamental distrust of formal writing that has driven the old tribal way of life.

This basic trait of escaping the modern written record makes it difficult even today for the younger members of the community to provide evidence of possession that his ancestors cleared and cultivated the forest.

The argument for eviction depends on the notion that those who are to be evicted are not legitimate tribals because they are not inhabitants since the dawn of time — they are not “adivasis” in the literal sense.

Anthropologist BK Roy Burman has argued that tribals are those who chose at varying points in history to live on the margins between kingdoms, in what he called buffer zones (it is clear to us that such zones escape oppression and hierarchical exploitation on either side).

In this manner he traced the line of tribal life across the middle of the modern Indian state to Myanmar as following the historical fracture zone between kingdoms. We could generalise this insight and argue that tribals are those who choose to live on the margins or boundaries between centers of sedentary power.

It is therefore important to understand the term “adivasi” in more than one way — not necessarily only as the first inhabitants, but rather as also those who had once chosen to live in the most fundamental, basic way, setting aside the double-edged benefits/oppressions of the “modern” sedentary life.

We must remember that this was a choice some people made to find ways to survive against odds where most others migrated to the plains to eke out an existence. Seen this way, the forest-dwelling individual or adivasi was a resister against civilizational bondage, permanent settlement and indebtedness that characterize the sedentary way of life — they were true survivalists in Indian history.

The dilemma of the young tribal

The younger generation of tribals are of a different mindset. The dwindling forest cover under the pressure of industry/state-driven use of forests on the one hand, and the removal of access to ever increasing tracts of the remaining “reserve forests” and “wildlife reserves” on the other have put immense restrictions on the sources of tribal food and livelihood.

This pressure is only multiplied by the intense pressure on land by perpetually growing settlements on the boundary of the forests. Clashes for survival between humans and animals have increased making forest life more difficult.

Shifting cultivation, gathering edible roots/plants and minor forest produce for sale, and the hunting of animals have all become illegal in many areas where tribals live. This creates a negative pressure on the younger tribals against living according to their traditional practices.

There is now a desperate demand for land pattas and evidence of ownership of a small patch of land, and for a crucial ration card to buy rice and provisions, very different from their traditional fare.

Today’s young tribal is thus caught between this ancestral political culture of distrust of written records, and the modern state that insists on one. Given this culture, the tribal never has any proof except an oral history: the testimonies of the village elders of having lived there.

Or perhaps if the young tribal is lucky enough, he/she has a forest offence registered by the forest department prior to December 2005 that proves he/she lived there. It is therefore unsurprising that most of the claims stand rejected. It would be almost impossible for the tribal farmer to produce any kind of proof of possession.

There is also an increasing intervention of both government, and development/health NGOs in their culture and lives, which have resulted in a transformation of the life of the tribal, “modernizing” it through education, healthcare and also meager opportunities of employment (which are often loaded with discrimination).

In such a situation, finding legitimacy for ownership of the patch of land once thrust upon them against their will is now the only way for the tribal to survive. The young tribal is, thus, no longer enamored of the old way of life.

However, he/she respects it and laments its loss, and increasingly, they are drafted into attempts to preserve tribal culture and knowledge systems through archiving, recording/documentation of performative traditions, food and cuisine and alternative health traditions.

Thus, the tribals’ old distrust of the written record is now complicated by this modern engagement with preservation of their own older culture in written records.

Hence, the younger tribal follows a different, more modern rhythm. But, the possibility of him/her benefiting from this transition to a more recognisably “modern” life is trapped between their wilder, more autonomous antecedents and the state’s demands for evidence.

Thus, there is the real threat of expropriation and the loss of both livelihood and of a culture of resistance that gave her/him birth.

Eminent domain, forest departments and due process

Directly coupled with the colonial desire to settle the tribal and make her countable/accountable with land pattas (discussed in the first section of this essay) is the advent of the modern state.

The state, from the 19th century onwards, unlike kingdoms of the old, appropriated all land not belonging to legitimate property owners through a broad field assertion of eminent domain.

This historical process of appropriation of all “free” land is mirrored in the forests by the colonial drive to pacify and settle the tribal. The rulers sought to free vast tracts of land from what was seen as primitive and hostile defence of unowned territory that was destined by right to become Crown property.

The economic drive that accompanies this appropriation of forests throughout the colonial period is the claim to ownership of major forest produce — timber, and this drive found its expression in the history of the colonial forest policies across British India in the late 19th and early 20th centuries.

In post-Independence India, the state’s coveted defence of its authority to use forest territory to produce wealth has been complicated by modernization projects — Iron ore mines in the Southern Chhattisgarh region, Balimela in Orissa, the Upper and Lower Sileru dams in north eastern Andhra Pradesh, Srisailam in the Nallamala Hills (AP and Telangana), and other such ventures across the country now make it convenient not so much to have forestry as a culture of keeping forests alive, but rather of destroying forests in the search for minerals, irrigation, power and industry.

In neoliberal India, these have now echoed in the industrial greed for forest land, the prime example being the Odisha Mining Corporation and Vedanta Limited’s drive for mining rights in the Niyamgiri Hills.

The state’s sovereign ownership also exists in the fantasy of a forest that lives without “illegitimate” people in it. What was once the tribal’s free usufruct is now the state’s domain.

Thus, as K Balagopal has argued, it is not the tribal who is the intruder, the squatter or the property goon here — it is the Forest Act, i.e., the sovereign state itself. In such a context of overwhelming sovereign power, it is important for a just state to recognise the pre-existing right of the tribal to a hard life that is to be respected for its integrity and stamina.

As the true intruder and bully the state forest departments have time and again summarily dismissed what the tribals produce as evidence, and also the corroboration by the gram sabhas regarding their right to traditional residence.

It is as if the forest departments are the only claimants to the forests which former assume in the person of their Forest Officers, the sovereign right to eminent domain.

It is this modern bourgeois “statist” mindset that is the final blow to any preservation of the right of the tribal to autonomy.

Forest right vs authority

The Forest Rights Act of 2006, despite its documented flaws, exhibits the best intentions of government beyond the demands of industrial growth and modernising development.

Its provisions for the rights of tribals are truly remarkable in their breadth and depth of vision. As with all such progressive enactments, the politics/commitment of having written and passed such an enactment has doubtless blinded the lawmakers to the entrenched opposition it will face from the authority of the state departments in charge of forest conservation under the various forest policies and acts.

This is a schizophrenic government where one part (Ministry of Tribal Affairs or MoTA) battles another (the state forest departments which report to the Ministry of Environment and Forests) over authority.

A key instance which demonstrates how the forest departments completely negate the application of the provisions of the Forest Rights Act emerges in the MoTA’s counter affidavit to the Supreme Court pleading a reconsideration of its February order of eviction.

The affidavit lists no less than five futile attempts between 2013 and 2017 on the part of the MoTA to get details on the basis of which the forest departments are rejecting claims of right to residence and cultivation.

The counter affidavit describes the haphazard ways of dismissing the claims, the absence of information about the appellate mechanisms and the lack of knowledge of majority of claimants about procedures. What can also be read between the lines is the continuing authority of the forest department in rejecting the claims.

The tribal claimant’s sole proof is the oral testimony of her elders in the village. It is these elders who will, with much accuracy, indicate whether those whose status is in question are tribals, other traditional forest dwellers or land-grabbing intruders.

The FRA, has by recognition of tribal political culture, authorised one such committee — the gram sabha as the competent and ultimate local authority in its jurisdiction. This is the point of violent contention of the forest departments at the local level.

What was once their private bureaucratic fiefdom had been taken from their control. It is true that the forest departments’ authority exists where the gram sabhas don’t operate, but where’s the logic in authority when you can’t exert it on any one?

The rejection of the thousands of claims clearly shows how the gram sabha’s authority has been denied, destabilised and hijacked by the forest departments in pursuit of their own agendas.

A recent media report describes how the MoEF and the state level Forest Departments are systematically diverting forests for industrial use.

In the case of the Niyamgiri Hills, decisions of seven gram sabhas representing 2,000 tribals were forged with copycat resolutions relinquishing authority over 1,400 acres of territory to the government for exploitation by the Odisha Mining Corporation.

The forest departments see the gram sabhas as rubber stamps for their own authority, and this is faced by recalcitrant resistance on the part of the tribals who are no strangers to fighting for what is their due.

Thus while this crisis could be described in Marxist terms as an attempt at expropriation of the tribals into subsistence workers in modern India, there is also the dimension of the battle for authority between bureaucratic privilege and progressive legislation seen all over the embattled face of India.

Privilege, innocence and authority

The employees of the forest administration come from the same class and castes as did the sahukars, karnams (patwaris) and patels who oppressed the tribals.

If the current romanticism of the Wildlife First (the NGO that filed a petition in the Supreme Court) and their ilk is being supported by the hardnosed opportunism and resentment of the retired and out of work forest officers, they are at first sight strange bedfellows indeed.

The environmental activists (mentioned here) at one extreme believe that the forest is a living being that is exclusive of humans who live in them and has a right against its human inhabitants.

Their romanticism refuses to accept that human beings who live in humility in the forest, as do the adivasis, are accepted by the forest in its way of life. The forest administrators on the other extreme are convinced that they as the intermediaries of the state are the true dispensers of the forest’s wealth.

But perhaps these two bedfellows are not so strange after all. John Berger once argued that Thomas Gainsborough’s paintings of the English landowning classes alongside their lands and idyllic country scenes reflected their authority as landowners. Thus the high romantic view of a pristine landscape was driven by the innocent privilege of possession.

In our case, the activists who support the forest’s own right against that of its inhabitants and the administrators of the “legitimate” exploitation and diversion of forests for industrial growth reflect one another in their canny innocence.

Conclusion

A positive development has been that the order has been stayed by the Supreme Court as of February 28. Hopefully the SC hearing posted for July 11, 2019 will strike down the misdirected and draconian order of eviction.

During the previous hearing, the judges were reported to have asked “are they (rejected claimants) really tribals or normal people encroaching on forest lands?”

They went on to say, “encroaching forest lands is a serious problem”. The court wanted to know whether the delegitimisation of these tribals as residents was based on sketchy data.

The point at issue here is that evidence in the form of authentic ownership documents is unavailable for both tribal and non-tribal “encroachers”. The truth is therefore “sketchy”.

Hence, this form of evidence demanded by the apex court will not separate the genuine residents from the aliens. It will reject the latter and a large number of the former.

Instead the Supreme Court must understand two critical issues — one is the absence of documentary proof and two is the ruthless delegitmation of local authority i.e, the gram sabhas. These are the two pivots for the large-scale rejection of claims.

The Supreme Court must also understand that the conservative forest departments must be brought to heel to serve the more progressive dimension of the Indian State.

The authentication of the claim and its corroboration rests in the authority of the gram sabha. While this authority may appear incongruous to the document bearing modern man, it is also the way forward toward genuine decentralisation of authority. This is the only way to ensure justice to the millions of tribal claimants relying upon memory and oral narratives as their sole proof of existence, the failure of which will lead to unprecedented unrest among the forest dwelling communities.

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