Where
are the Forests? Legal Pluralism and Land Use Change in the Kolli Hills[1]
by
Ajit Menon[2]
first draft of an article published in Christoph Eberhard & Nidhi Gupta (eds), Legal Pluralism in India, Special Issue of the Indian Socio-Legal Journal, Vol. XXXI, 148 p (11-26)
Legal pluralism, as a ÔconceptÕ, has awoken us to the
possible existence of laws other than state laws governing the management of
natural resources. Legal pluralism, as a ÔdisciplineÕ, has gone a long way in
documenting the existence of these customary laws. In fact, few would contest
any longer the claim that most natural resources in developing countries such
as India have historically been managed through customary law and that such law
continues to be critical to the manner in which natural resources are managed
in the local commons.
Great
diversity exists within 'customary law'. Unlike statutory law, customary law is
rarely codified in a written form and applicable to large spatial domains. It
is regionally specific and firmly rooted in given social and cultural
practices. The study of customary law must, therefore, entail the study of
'local' economies and cultures and aim to highlight the specificity of
particular customary domains.
This
paper is such an attempt. First of all, I delineate the boundaries of the
customary domain in a given geographical context, namely the Kolli Hills, Tamil
Nadu, a predominantly tribal area in the Eastern Ghats. Too often the
boundaries of customary law, be it customary forest law or customary water
law, are a priori defined. Customary forest law, for example, is often
defined in terms of how forests are used customarily instead of as ÔlawÕ which
governs the collection of Ôforest produceÕ. A main aim of this paper is to
highlight the consequences of a poor delineation of the customary. The second
intent is to explore the manner in which the different competing legal domains
(customary and statutory) confront each other and that too temporally speaking.
While Ôforum shoppingÕ (Meinzen-Dick and Pradhan 2002) is a popular tool in
studies of legal pluralism, it is not very useful in understanding the
processes of interaction between the customary and the statutory which are
often resolved in the arena of political economy. This paper, therefore, attempts
the following: (1) to examine what local communities consider 'forests' and
'forest law'; (2) to explore the dynamics of customary forest law-state forest
law interaction and (3) to asses what role customary forest law can play in
future sustainable forest use.
The focus is to widen the boundaries of
debate. The above concerns, I argue, are critical to the discourse on forest
use and management. The tendency to take forests and forest resources for
granted, to assume that state law has eroded customary law completely and to
see successful forest management merely as a function of community
involvement/customary law not only ignores the regional specificities and
complexities of 'customary forest law' but also misreads possible solutions to
sustainable forest use in the long-run.
The
paper is divided into four main sections: the first section attempts to
understand what the conceptual underpinnings of customary law are. It is argued
that customary forest law is more than just law about forests (in a legal
sense), it is law about land used for meeting forest produce needs. The second
section explores what customary
forest law is in the Kolli Hills and how it has been affected by the arrival of
statutory law. The argument put forward is that customary law in the Kolli
Hills historically has been a marker of autonomy from the plains more than a
mechanism to set forth rules and regulations for land use. The latter function
of customary law, while broadly present, has emerged more prominently as a
result of statutory law taking root during the colonial period and privileging
ownership (as defined by the state) over use (as defined by local communities).
The third section explores how customary and state law collide in two hamlets
of the Kolli Hills, the impact of
this collision and the significant differences in terms of both the land
use manifestations of customary law and consequently the impact of statutory
law. Given this background, the last section (in lieu of a conclusion) focuses on the role customary forest
law can play in sustainable forest management. It highlights in particular the
need to see forests as part of the wider agrarian landscape in attempting to
find solutions to sustainability. A couple of caveats are in order here. First
of all, the paper does not attempt to explore the ecological dimension of
forest use specifically. Instead, the intent is to illustrate that if social
and cultural sustainability is not adequately addressed in terms of identifying
the priorities of the local, ecological sustainability is unlikely to be
attained. Second, this is to a great extent a preliminary attempt to widen the
boundaries of discourse around the forest question.[3]
In
that sense, the main focus is to raise conceptual and methodological questions;
gaps might, therefore, exist in terms of detailing the specificities of
household land use patterns in the Kolli Hills.
Ironically perhaps, therefore, concern about definitions of law, are essentially directed at establishing the legal credentials of customary law and distinguishing it from other forms of normative ordering. Bavinck (1998: 11), in his study of off-shore fisheries in the Coromandal Coast of South India, addresses this concern by suggesting the following: Ôa legal system should be understood as consisting of a set of rules as well as the authority, or the organizing entity, responsible for its formulation and implementationÕ. Such an approach would require defining what the organizing entity is and what the set of rules are.
Stamping legal credibility, however, on customary law is frought with problems. As Leach, Mearns and Scoones (1997: 9) point out, the Ôdistinction between rules and peopleÕs practices is rarely so clear.Õ What they suggest is that institutions (or rules of the game) are Ôbetter seen as regularised patterns of behaviour that emerge, in effect, from underlying structures or sets of Ôrules in useÕ. While this approach may not be appreciated by those who fear the demise of legal pluralism, I argue, that adopting a more open ended approach such as this to studying Ôpatterns of behaviourÕ as opposed to Ôrules of useÕ actually gives more scope to retrieving the customary. This is not to say that rules (as regulations) do not exist but that they might not be as transparent as one would want them to be. Retrieving rules will require a field based approach. Moreover, as Moore (1978) has suggested, rules are themselves made and unmade at different points of time. This is particularly the case vis-ˆ-vis natural resource management as rules most often exist in situations of scarcity only. If one studies a natural resource regime only at a given point of time, namely in a context where scarcity situations do not prevail, it is possible that no rules will appear. It could also lead to conclusions such as HardinÕs ÔTragedy of the CommonsÕ (Hardin 1968), namely that rules do not exist and that eventually the resource will be over-exploited.
The approach adopted here, therefore, is one which assumes that customary law is not necessarily a well articulated phenomena with clearly defined rules of use (as opposed to rules in use) and procedures for monitoring and enforcing these rules. A more open-ended approach to customary law traversing time is used despite the fact that it might erase the distinction between law and other forms of normative ordering. In terms of method, this customary law (in the absence perhaps of clearly defined rules of use) can be disentangled by undertaking a study of land use practices (rules in use). Examining everyday agrarian practices, the cultivation of land, the grazing of cattle and the collection of forest produce will help understand how resources are allocated and for what purposes. These practices constitute the legal domain though there are few signs of rules or an authority enforcing it.
In the case of the Kolli Hills, in other words, the lack of clearly specified rules historically for use of natural resources does not imply that there was no customary domain, but rather that the need for such rules were less apparent. The more visible manifestation of rules might arise when customary law is threatened by other legal domains. Scarcity situations which necessitate more clearly defined rules of use, in other words, often appear when other rules impinge upon them. In most cases in India, colonial revenue and forest policy signalled the beginning of conflicting rules. The colonisation of land in the Kolli Hills not only emphasised much more clearly what customary law was in the hills (especially in terms of land use) but also posed a significant threat to this law.
Another important concern of method is unraveling the ÔforestryÕ dimension of customary forest law. Much of the natural resource discourse (and legal pluralism discourse) has focused on how local institutions exist for the management of particular resources, namely forests, grazing lands, fisheries or irrigation systems. Such an approach is problematic for a couple of reasons. First of all, an a priori assumption of the importance of a particular common property resource might result in over-estimating its value and exaggerating the presence of management institutions. For example, the importance of non-timber forest produce could vary significantly between communities. Forest dependent communities in tribal Orissa might be very different than those in the Kolli Hills in terms of how forest resources are valued. In the former case, forest produce might be a significant income earner while in the latter it might be just a source of fuelwood - as a result the rules of the game might be different. Second, as suggested at the outset, forest produce might not be only produce from forest lands. If an a priori assumption is made that it is, then the importance of other lands for forest produce needs might be missed.
If one moves away from resource specific studies, it becomes necessary to disentangle local land use strategies in some detail. Secondary information on land use can not do this adequately. The tendency to classify land uses either as net sown area or grazing pastures or barren and uncultivable, while convenient to the statistician, often does not capture the complexity of local reality. Land classified as grazing pastures, for example, may be cultivated as well or similarly land classified as net sown area may be grazed after the crops have been harvested. Forest produce may be obtained from 'forests', but it can also be obtained from grazing lands and paddy fields. Likewise forests might be cultivated. A study of how land use as a whole is regulated within the customary domain will be more fruitful in answering these questions.
Finally, let me return to law as an embedded social phenomena. Attempts at retrieving the customary are often preoccupied with establishing the credentials of the customary and consequently neglect the complexity of the customary itself, especially in terms of the social. Customary management systems (or even rules in use) are part of wider social structures within the community domain. For example, access to forests might well be mediated by the extent of private land, the dependence on forest resources or the location of households. These dimensions need to be explored while studying the customary and are of particular importance when trying to understand the role of the customary in future forest management regimes (community management or co-management). Attempts at recreating similar institutions in different temporal and geographical contexts have often met with little success because the social content of law has been ignored. It is important that the search for the customary be sincere and not end up being more imagined than real (Mamdani 1996).[5]
2. Shifting Contours of Forest
Law in the Kolli Hills
The Kolli Hills is situated between 11 10' and 11 23' north latitude and 78 17' and 78 28' east longitude in Namakkal District, Tamil Nadu. The hills are an important mountain range and an outlier of the Eastern Ghats. They rise from the plains to a height of approximately 1,400 metres and run approximately 28 km from north to south and 19 km from east to west.
The Kolli Hills has a population of 33,888 (1991 Census)[6] of which approximately 97 per cent are Malaiyali (hill people) scheduled tribes. There are 14 panchayats (16 revenue villages)[7] in the hills which are divided equally between Namakkal and Rasipuram Taluk. The Malaiyalis are primarily agriculturalists who depend mostly on paddy and millet crops but increasingly on commercial crops such as tapioca and pineapple. The Namakkal side is the agriculturally more productive side and is generally considered better off than the Rasipuram side.[8]
Forests comprise an important part of the Kolli Hills and are situated mostly on the slopes. Approximately 50 per cent of the total area of the hills are reserved forests[9] or state-owned forests. These forests are mostly of the south Indian dry deciduous type which mostly occur at a height ranging from 450-950 metres. Abundant species include vengai (Pterocarpus marsupium), namai (Anogeisssus latifolia), etty (Strychonus nux vomica), puli (Tamarindus indica), athi (Ficus racemossa), kadukkai (Terminaloo chibula), sandalwood (Santalum album) and pala (Artacarpus integrefolia).[10] There are also some sub-tropical evergreen forests on the plateau which include species such as terrakani (Cedrela toona) and teku (Techtona grandis).
In addition to the reserved forests outside of the village boundaries, approximately 23 per cent of village area is forests - mostly under Forest Department control now.[11] Thus, over 70 per cent of the Kolli Hills is forests in a legal sense. Forests are, therefore, a major part of the spatial landscape of the hills. Moreover, given the basic dependence of the Malaiyalis (like any other rural community) on fuelwood and fodder from the forests, these forests are important in terms of subsistence strategies.[12]
Forests for local people, however, do not coincide only with the reserved forests.[13] While reserved forests are the main legal category of forests in the Kolli Hills, local communities also find forest produce from non-forest lands. The Settlement Records from the early twentieth century suggest that dependence on non-forest lands was significant even when many of the forests had not yet been reserved, i.e. when there were no legal barriers of entry to many of the forests. Thus, the act of reservation is not the only reason for using non-forest lands. Local nomenclature also alludes to the different meaning that 'forests' have locally. The term kadu, which literally means forest, refers to dry lands within the hills suggesting that dry lands are an important source of forest produce.
Forests, however, should not be privileged. Malaiyalis, being agriculturalists, have to a great extent valued land in terms of its crop growing potential. Thus, land is broadly classified as vayal (wet land), mettukadu (dry land) and kollakadu (rocky land). Vayal is irrigated land, mostly by streams in the case of the Kolli Hills. Mettukadu (mostly dry lands) is mostly used to cultivate minor millets such as ragi, samai and thinai and over the last few years cash crops. Kollakadu has been mostly home to minor millets or left for grazing purposes. Lands which are not cultivated, moreover, are usually considered to be dhirasu (fallow). It is important to stress that these land use categories do not in any way coincide with particular legal categories. For example, the state also classifies certain land as dhirasu. This land is invariably land owned by the state but which has been assessed for revenue purposes. It might actually be cultivated.
Two important points emerge from this. First of all, the disjuncture between forest and agricultural land is not clear cut within the Kolli Hills.[14] In fact, as Jeffery (1998) has argued, land often attains 'social meaning' according to how it is (or can be) used. Thus, if non-forest lands (in a legal sense) contain potential forest produce, these lands are as much forests in local parlance as vast tracts of reserved forests. Put another way forests, in the local imagination, are not legal categories but land use categories. The implications of this are that customary forest law must necessarily be retrieved within the wider agrarian landscape - a landscape which needs to be understood in the context of how land is used by the Malaiyalis.[15] As important as finding out about rules and regulation governing the use of reserved forests is discovering any rules with regard to non-forest land.
Specifics of customary forest use will have to be retrieved in the context of the wider customary domain (Van den Berg and Biesbrouck 2000). In the Kolli Hills, the customary 'emerged'[16] first through expressions of autonomy and resistance in the late eighteenth century. When the British tried to set high rates of revenue collection and separate the kombe villages[17], the Malaiyalis refused to pay the rents and did not allow colonial officials into the hills. What this suggested was that the Malaiyalis were particular in maintaining their autonomy both from the plains and the colonial authorities.
So what was
this autonomous administrative set-up? At the top of the administrative
hierarchy were the periya-pattakarans or
gurus. In addition to them, there
were pattakarans (headmen), maniakarans, ur-kavundans (oor gounders) or moopans
and kanganis. There was a pattakaran in charge of each village (nadu).The pattakaran's role was that of an intermediary between the people
and the periya-pattakaran. The pattakaran historically supervised the protection of tribal
property whereas the ur-kavundan administered
important occasions of the Malaiyalis such as harvests, festivals and marriages
in addition to convening the local oor panchayat. In that sense, local disputes over land were
generally resolved by the ur-kavundan. With the help of kanganis,
the ur-kavundan collected
information with regard to conflicts and disputes which were sometimes about
land use and land ownership.
A leap of faith is sometimes taken that the existence of an autonomous administrative tribal domain in the Kolli Hills implies the existence of institutions for natural resource management (Saravanan 1999). But the evidence for this has been scant at best. The existence of samai sholais (sacred groves) is more a testimony to the fact that certain patches of forest land are deemed sacred than an indicator that rules of use are in place. In the Kolli Hills, there are patches of degraded forest right next to samai sholais. My own work suggests that there are some general practices with regard to land use but not specific to forests. One illustration of this is that during the off-season patta lands become common grazing lands and sources of forest produce. There are also some very precise rules but they are very context specific. For example, in one hamlet, particular trees on common lands were designated to particular households and particular branches to specific family members. There is no evidence, however, to suggest that this was a general rule. In that sense, the 'lie of the land' (Leach and Mearns 1996) appeared to be more important than any generalised rule of land use. It is argued later that the statutory's clash with the customary centred significantly around the state's failure to understand even these basic land use principles.
Prior to assessing the impact of statutory law on customary law, it is important to highlight that there are (and always have been) fractures within the local itself. First of all, there are differences in the size of operational holdings. While over 70 per cent of operational holdings in the Kolli Hills are either marginal (<1 ha) or small (1-2 ha), there are medium and large holdings as well. While operational land holding data does not capture, the trend in ownership, there are signs that land ownership is becoming more skewed - something which is being aggravated by benami transactions. There are also differences in terms of 'type of lands' available for cultivation which impact upon how the customary is perceived off. And finally, there are locational differences which also impact upon how 'rules in use' manifest themselves. A caste dimension exists to the extent that the SC households in the Kolli Hills are invariably landless.
A number of points are being made here. First of all, rules are often fluid and not well-defined. Thus, 'rules in use' is a better indicator of what rules and law are. Second, the nature of rules in use are very specific to particular agrarian landscapes and must therefore be retrieved from the field. Third, rules in use for a community have differential manifestations within the community. All of this should be contextualized in a situation where land is deemed to be 'productive' if it can be used for some purpose, not only if it is 'cultivable'. In that sense, land is not considered a scarce commodity in the same way the state might deem it to be so though it might have natural constraints. Finally, it should be recalled that population densities have been very low until recently.
When forest settlement began in the mid-nineteenth century, for the first time restrictions were imposed on the Malaiyalis in terms of land use. Over 20,000 ha of forest became reserved forests, and the Malaiyalis were barred (except for villagers in Ariyur Nadu and Gundur Nadu who were granted rights of usufruct) entry into these forests for collecting non-timber forest produce for fuelwood and fodder. A large tract of land was, therefore, statutorily fenced off.
Revenue settlement had even more of an impact. Since the Malaiyalis were primarily agriculturalists, of prime importance was 'cultivable land'. Revenue settlement in 1905 imposed taxes on local communities and households. As importantly, Settlement resulted in land being categorised as 'occupied' and 'unoccupied' by the British. Occupied land was invariably land which was cultivated at that point of time (or currently fallow) and excluded long-term fallow land and other land used for grazing or foraging purposes. In other words, land deemed to be unoccupied by the British might have actually been occupied in some other sense of the word. In 1905, about 9,000 ha were considered occupied which was only about one-third of total village land.
The long-term significance of the 'occupied' versus 'unoccupied' distinction was that it served as the foundation for more specific ownership categories to follow. By 1936-37 (the Resettlement Period), the British no longer spoke of occupied and unoccupied land. Land was sub-classified as dry, wet, assessed wet waste, assessed dry waste, unassessed, poramboke and forest poramboke. In terms of ownership, only wet and dry were private (or patta) lands belonging to the Malaiyalis, These were, in earlier parlance, the occupied lands. The rest was state property. Assessed waste was land which had been assessed for revenue purposes but which remained under state property rights. It constituted over 40 per cent of total land and often was land which had cultivable potential but was not yet given to the local people. Poramboke land was revenue land allocated for specific purposes as decided by the state. Totally, over 50 per cent of land, therefore, fell under state property rights. This meant that at least some land which had been used locally was now legally excluded.
Along with settlement and new property rights regimes, the language of encroachment emerged in state discourse. Lands which were utilised locally but were owned by the state were considered as encroached land. A distinction was made, however, between 'unobjectionable' encroachment and 'objectionable' encroachment. Unobjectionable encroached land included much of the assessed dry waste land. Thus, though legally speaking this land was owned by the state, it could be used locally if individual households paid tax on it.[18] Property rights distinctions were, in other words, more nuanced than simply state owned or locally owned. Nonetheless, the fact that land was owned by the state meant that the transaction costs of using this land were often very high.[19]
The distinction between use and ownership was to carry over into the post-independence period. Both the revenue and forest bureaucracies became well-entrenched in the Kolli Hills. Forest beat officers and village administrative officers (VAOs) administered laws and collected revenue in a similar manner as had their colonial predecessors. Though the development bureaucracy increasingly alloted land (D-card patta land[20]) to tribal households, a far greater amount remained in the control of the revenue department. Latest available data for 1997-98 illustrates that more than 10,000 ha (or 40 per cent) of total village area remained assessed dry waste land. If reserved forests are taken into account, another 25,000 ha or so can be considered legally alienated from the Malaiyalis. Even land which is considered to be 'unobjectionable' encroached land, namely assessed dry waste and some poramboke land, are increasingly being used for other purposes such as plantations, making it increasingly difficult for local communities to claim use rights over it. Not surprisingly, the distinction made by local people between 'their' land and 'our' land is increasingly emerging. This distinction is largely governed by property rights distinctions, i.e. households have internalized the statutory language of the state. In fact, local conflicts are increasingly being resolved through statutory as opposed to customary means. While the oor panchayat might serve as the first recourse with regard to settling disputes, the Malaiyalis are increasingly approaching the state for legal interventions. At times, the state even acts as a legitimizing force.
The changing land dynamics has occurred, moreover, in the context of significant population growth in the Kolli Hills. Whereas the population in 1961 was only 21,020, it had increased to 33,888 by 1991. Consequently, per capita wet and dry lands ('our land') declined from almost 2 ha per household to less than 1.50 ha. Operational holdings, were, moreover increasingly fragmented with marginal holdings (<1 ha) comprising 38.45 per cent of total holdings and small holdings (1-2 ha) 30.15 per cent. With ownership taking precedence over use this implied that access to land was diminishing over time. Statutory law has had, therefore, a significant impact on the communities of the Kolli Hills.
Another point highlighted in the last section is that legal control by the state has differential impacts. This is due partly to the distinction between property rights and control rights (Sivaramakrishnan 1996). Within a particular property rights regime, the question of who controls the land is open to scrutiny. At one level, who controls the land depends on the transaction costs of monitoring this land. At another level, it is linked to potential rent-seeking possibilities by state officials. Differential impacts also depend on the nature of local land use strategies. In fact, the two hamlets studied are broadly similar in terms of 'objective' criteria but very different in term of how statutory law has affected them.[21]
The statutory-customary divide/conflict must not, however, be seen in absolute terms. It is not just a case of customary law being supplemented by statutory law or of the customary being more 'locally' driven than the statutory. A number of points suggest that the equation is more complex. Recourse to the statutory, either to protect the customary or to challenge it brings to the fore both the possibilities offered by the statutory at particular points of time and the dissensions within the customary. Therefore, while the customary might be retrieved by understanding 'rules in use', these rules in use are not uncontested locally or vis-ˆ-vis external actors. The fact that tribals in the hills are more and more going to the law for conflict resolution is testimony to the latter point. The former point is best highlighted by the fact that tribal communities have been urging the state to enforce a tribal land alienation act which protects their customary use of the land. Finally, it is important to remember that even when the statutory imposes itself upon the customary, the outcome is often very complex in nature, i.e the customary does not simply disappear. Rather, it adapts and in the process the distinction between the customary and the statutory becomes more hazy. This is elaborated upon in the next section.
3. Changing Legal Discourses
in Two Hamlets of the Hills
The macro scenario in terms of land use does not necessarily capture the relationship between customary and statutory law in practice - something which requires a much more detailed enquiry at the 'field' level. As I shall illustrate in this section, this 'field'-level reality itself differs significantly within the broad customary domain of the Kolli Hills. Customary law (rules in use) has had different manifestations in different contexts within the Kolli Hills, particularly noticeable if one compares the Namakkal and Rasipuram sides. In order to unravel these differences, this section examines how the Malaiyalis in two different hamlets in the Kolli Hills have traditionally met their forest produce needs and how this has changed in the period after the legal presence of the state has been felt, namely in the last 10-15 years.
The selection of two hamlets, as opposed to villages, is because hamlets are where communities in the Kolli Hills meet their forest produce needs. Geographical proximity has been a significant factor in determining the source of forest produce, i.e. communities and households express a preference for obtaining forest produce in close proximity to their hamlets.[22] Both the selected hamlets, Kattangattupatti and Edappukkadu are situated close to reserved forests. The selection of hamlets proximate to reserved forests is deliberate as it will illustrate that even in such hamlets forest produce is often met from non-forest lands in the legal sense - reiterating the point that customary forest law must be more than just law about the reserved forests.
Kattangattupatti, the first of the two hamlets, is situated in Devanur Nadu, a village in the southeastern part of the Namakkal Kolli Hills. Kattangattupatti means a hamlet where land is not productive in nature. Like most hamlets in present day Kolli Hills, the residential area is highly bunched together, running approximately 35 metres from north to south and 40 metres from east to west. There are 19 farm households in the hamlet.[23] The total population of the hamlet is 110, 46 men and 64 women. According to an elder of the village, the hamlet originally had five families, namely Kattakkattu Sri Rangan, Kuttiyandi, Vela, Savi and Thethu Pillai. The expansion of the hamlet was both a result of internal sub-divisions of the original families and in-migration from neighbouring hamlets/villages of the Kolli Hills itself. There is also some indication that over the last 10 years the population has fluctuated considerably due to individuals going to the plains intermittently for seasonal employment.
The hamlet has only one hand pump and one open well. The handpump, moreover, has not been functioning for many years. Most houses are thatched and only four out of twenty-four houses have electricity. The hamlet has three street lights which function most of the time. Most of the agricultural patta (private) land is located on the western side of the hamlet. There is both wet land (irrigated by stream) and dry land. In addition to patta land, there is a small amount of D-card patta land[24] as well. The poramboke land is located on the eastern side of the hamlet and in fact marks the eastern boundary.
The total amount of productive[25] land in the hamlet is 47.92 ha. 34.60 ha or 72.20 per cent of the land is poramboke land, an extremely high percentage.[26] Dry land encompasses 8.90 ha or 18.57 per cent, wet land 1.39 ha or 2.90 per cent and D-card patta 3.03 ha or 6.32 per cent. In that sense, patta lands constitute only 27.79 per cent of total productive land. The per capita amount of patta land (including D-card patta) is only 0.12 ha while the household average is 0.70 ha.
Land use, however, as suggested above, rather than land ownership has been paramount in terms of local subsistence strategies. In Kattangattupatti, the poramboke land has for the most part been cultivated locally. For local people, this poramboke land has always been treated as 'ours'. Since locally poramboke has been treated as 'ours', it is necessary to see how the use of this land has affected the overall access to land scenario. In cumulative terms this involves simply adding the poramboke land to the wet, dry and D-card patta land. The per household amount of land in Kattangattupatti when including poramboke land is 2.52 ha, a considerable increase from 0.70 ha. However, a distinction needs to be made between productive land and cultivable land. Out of the total of 34.60 ha of poramboke land, 26.52 ha is considered cultivable. The total cultivable land is therefore 39.84 ha, the per household extent 2.10 ha and the per capita extent 0.36 ha, still significantly more than the cultivable patta land. The non-cultivable land is normally considered kollakadu and is used more often for grazing.[27]
As mentioned earlier, the poramboke land, on which the plantation is situated, constitutes 72.18 per cent of total productive land in Kattangattupatti. Although this land has always been owned by the state, prior to the plantation the state did not enforce its ownership rights. The use of the poramboke land in Kattangattupatti was primarily for agricultural purposes. Whereas wet lands were only for paddy cultivation, dry and poramboke lands harboured various crops such as ragi, samai and thinai. Dry land was mostly for tapioca while poramboke land was chiefly for minor millets. The fact that ownership did not necessarily rest locally has historically had little bearing on how the local perceived of land in terms of its possible usages.
This picture was the scenario prior to the state intervening in terms of a silver oak plantation. The silver oak plantation, planted on poramboke land, took place despite the fact that much of this land was being used for minor millet production. It was the state's way of negating customary land use practices in favour of its own property rights based land distinctions. It was made possible by a transfer of land from the Revenue Department to the Forest Department.
So how has the plantation (known locally as a social forest[28]) actually affected local subsistence strategies and forest produce needs? Two factors need to be considered to answer this question. First of all, how much land has been physically 'lost' locally due to the plantation. Second, in what way has the physical acquisition of land by the state affected local subsistence strategies. As mentioned above, a distinction is often made between proprietorship and access (or control). However, within the same form of proprietorship, there are differences as well. Although the plantation has not signalled a change in proprietorship, i.e. the state is still the owner, the transfer of land from the Revenue Department to the Forest Department has resulted in significant changes. What needs to be considered is whether the 'loss' of land as a result of this transfer in actual fact has led to the infringement of local user rights and if so in what form.[29]
A priori at least the acquisition of this land by the Forest Department would seem to have had a potentially signficant impact. In practice, however, this ultimately depends on how the plantation interferes with local subsistence strategies. Spatially, the plantation does not cover the whole poramboke land. It occupies 13.80 ha out of a total of 34.60 ha. This 13.80 ha constitutes the land lost locally in terms of cultivation. Only 20.80 ha of cultivable poramboke is now available and instead of 47.92 ha of productive land, only 34.12 ha is available. Moreover, the per household amount of poramboke has declined from 1.82 ha to 1.09 ha and the per capita amount from 0.31 ha to 0.19 ha. As a result, the extent of productive land per household and per capita has declined from 2.52 ha to 1.80 ha and from 0.43 ha to 0.31 ha respectively.
The intra-hamlet picture is also important. Eleven out of the 19 households have lost poramboke land after the advent of the planation. More interestingly, those who lost poramboke land had significantly more poramboke land prior to losing this land. Whereas the mean amount of poramboke land amongst those who lost land was 2.41 ha, the mean amount of poramboke land for those who did not lose land was only 1.01 ha. Similarly, the total amount of productive land for those who lost land was 2.63 ha whereas it was only 1.52 ha for those who did not lose land. As a result, after households lost land to the Forest Department, the gap between those who lost land and those who did not actually declined significantly. In terms of productive land, those who lost land now had 1.69 ha on average, whereas those who did not lose land still had 1.52 ha.
The physical presence of the state has had other significant implications for customary land use in the Kolli Hills, all of which impact upon forest produce concerns. It has already been illustrated that poramboke land was extensively cultivated in Kattangattupatti. In fact, poramboke land was mostly cultivated with minor millets such as samai and thinai. These crops were central to the local diet and coupled with paddy on wet land also provided diversity and security from risk. The loss of this land implied that the foodgrain base of the local economy was threatened. The possibility, moreover, of growing millet crops on dry land was ruled out because dry lands were utilised for growing tapioca - a cash crop.[30]
It is important to remember that minor millets (especially ragi by-product) have historically been a source of fuelwood. Tapioca, on the other hand, is not a multipurpose crop and cannot be a substitute for minor millets. The greatest impact seems, however, to have been in terms of fodder not fuelwood, something apparent by the small number of cattle in Kattangattupatti. Elders recall the days when there were more than 400 goats, 50 cows and 50 bulls; however, at the time of my survey there were only 50 goats, 13 cows and 11 bulls. What this indicates, at the least, is that keeping cattle is no longer a financially viable or otherwise desirable for households.
The reason that fuelwood has not been seriously affected is that the silver oak plantation has become a source of fuelwood despite the fact that the plantation is under the control of the Forest Department. Although the state, by declaring it a forest, has legally privileged the uses it ascribes to this land and marginalised local community uses, the local enters the plantation on a fairly regular basis. Thus, while silver oak is not necessarily the preferred fuelwood, local people still use it. The phenomena of using the plantation for commercial purposes, as has been common in other social forestry sites[31], has not occurred here, most probably because of the severe restrictions imposed upon both the felling and transportation of timber in the hills.[32] Equally important is the fact that the state has permitted communities to make use of silver oak, suggesting that state property rights are not being enforced too rigidly. Nonetheless, as state officials (i.e Forest Guards) have recourse to statutory law, the transaction costs of entering the plantations are high.
The impact of state law in Kattangattupatti, however, must not be only seen in terms of customary forest rights. The local, in fact, does not view its forest produce needs in isolation from other subsistence needs. Thus, the loss of poramboke land has not been seen only in terms of a loss of a potential forest produce site nor as the arrival of a possible new site. This land was utilised for cultivation and hence its loss is measured primarily in terms of loss of cultivable land. Also, even if an attempt is made to isolate loss in terms of forest produce needs alone, the equation would be a complicated one. While loss of minor millets has been substituted for by availability of silver oak, which is more valuable locally is difficult to say. Though there is significant criticism of fast growing varieties such as silver oak exists, silver oak, as mentioned above, has assumed significant importance in Kattangattupatti. Similarly, the decline of the minor millet economy has to some extent been due to the fact that people have consciously opted for tapioca due to its monetary possibilities locally.[33]
The picture is further complicated when the reserved forest is brought into the picture. In Kattangattupatti, local inhabitants continue to enter the reserved forests especially to graze whatever cattle they have. Species such as pongam (Pongamia pinnata glabro), sala (Chukrasia tabularis), nava (Crataeva religiosa), athi (Ficus racemosa), vengai (Pterocarpus marsupion) and thagiri (Cassia thora) are common fodder species. The Forest Department is aware of such entry but does not prevent it. For the most part, villagers pay entry fees for grazing and fuelwood collection though these fees are not necessarily official. The year in which the survey was conducted, I was told that the villagers of Kattangattupatti collectively presented the Forest Department staff with a bag full of turmeric. So clearly use of the plantation and/or access into the reserved forest is not free of cost.
Edappukkadu, the other case study hamlet, is in Bail Nadu on the Rasipuram side of the Kolli Hills. Bail Nadu is in the southwestern part of the Rasipuram Kolli Hills. Edappukkadu, at its inception, was a small hamlet of 13 households. At present, however, there are 48 separate farm households and a population of 230. In fact, Edappukkadu is one of the main hamlets of Bail Nadu and is somewhat strategically placed near Power Kadu (Edappuli Nadu) which is a main hamlet of the Rasipuram Kolli Hills. The residential area of the hamlet is significantly larger than Kattangattupatti. There are two handpumps within the hamlet and a drinking water well located to the northwest. Unlike in Kattanguttapatti, most houses are tiled and only a few thatched. There is a temple situated in the west of the hamlet near one of the handpumps.
Dry lands constitute the majority of productive land in Edappukkadu. There are 51.01 ha of dry land, 3.93 ha of wet land and 16.24 ha of poramboke land. Dry land thus constitutes 71.66 per cent of total productive land area whereas wet land 5.52 per cent and poramboke 22.82 per cent. The wet land is located to the north and northeast of the hamlet while the dry land is located to the north (beyond the wet land) and the west of the hamlet. The poramboke land is located to the southwest of the hamlet.
In addition to land in the hamlet, households in Edappukkadu cultivate 0.20 ha of wet land and 3.36 ha of dry land outside the hamlet. The total productive land available is, therefore, 74.74 ha. In household terms, each household has 1.56 ha of land. Out of this, each household has on average 1.13 ha of dry land, 0.09 ha of wet land and 0.34 ha of poramboke land. The mean per capita land availability is 0.34 ha, out of which 0.27 ha is dry land, 0.02 ha wet land and 0.07 ha poramboke land.
The story of Edappukkadu proceeds in a similar manner to that of Kattangattupatti. In the mid-1990s, a jack plantation was started in Edappukkadu. This resulted in the loss of 6.68 ha of poramboke land. All of this land was considered cultivable land locally. As a result, the mean household availability of productive land in Edappukkadu declined from 1.56 ha to 1.42 ha. This meant that on average 0.14 ha per household of poramboke was lost and that the mean availability of poramboke land declined to 0.20 ha. The per capita amount of land declined from 0.33 ha to 0.30 ha.
Out of the 33 households who had poramboke land only eighteen lost land. Thus, 0.37 ha on average was lost by each of these households. Moreover, six out of eighteen households lost all their poramboke lands. Those who lost all of the poramboke land, however, had little in the first place. They also had little other cultivable land. Those who lost only some of the poramboke land lost more, but had more patta lands as well. Amongst all those who had poramboke land, holdings declined from 1.59 ha per household to 1.38 ha per household whereas for those who did not have poramboke land, the mean extent of land before and after the plantation was 1.51 ha. Thus, the difference in terms of the extent of productive land between those who had poramboke land and those who did not was not signficant either prior to or after the plantation.
Here too, the loss of poramboke land must be examined in the context of customary land use patterns. If one examines changing land use patterns, the plantation has been at the expense of pineapple cultivation. Pineapple, like tapioca, is a cash crop in the Kolli Hills. The reduction in area under pineapple has meant that household income has come under strain.[34] Although tapioca too is grown in Edappukkadu and in that sense to some extent cash alternatives exist within the local economy, the area under tapioca is marginal given both the relatively small extent of patta lands as well as the fact that dry land is also used for foodgrain crops. Prices of tapioca have also declined substantially and often a bag (75-100 kg) fetches not more than Rs. 75.
In summary, it should be said that scarcity of productive land has become the central concern in Kattangattupatti. The loss of poramboke land has taken away productive land from local inhabitants as well as reduced their total cultivable holdings. Second, the loss of land, understood in the context of local land use patterns, has meant the loss of cash-crop designated land. Patta lands have never provided around the year financial security; as a result any additional income earned helps local residents tide over during the agricultural off-season. Third, the plantation, in territorial terms, has given the state an additional presence within the hamlet. Though spatially speaking, the state always controlled a signficant extent of land within the hamlet, the plantation in the midst of the hamlet has resulted in an overbearing presence.
Unlike in Kattangattupatti, however, the plantation has not directly affected forest produce needs. While the poramboke land was used for minor millet cultivation about 20 years ago, the switch to pineapple around the mid-1980s has meant that throughout the past 15 years or so the poramboke land has not been a source of forest produce. The neighbouring reserved forest, moreover, plays a more important role in Edappukkadu than Puliansholai Reserved Forest does in Kattangattupatti. In addition to fuelwood and fodder needs, households in Edappukkadu over the last five years have collected kuluma leaves which are utilised primarily in the cooking of biryani as a means to add flavour. They market these leaves to contractors from Namakkal who pay on average Rs. 5 per kg. The collection of kuluma leaves has been an important additional source of employment and income.
The impact of state law on customary law has, therefore, had significantly different impacts in the two hamlets according to the different 'rules in use'. While there are clear regional markers in the Kolli Hills as a whole in terms of overall land use and local terminologies such as vayal, mettukadu and kollakadu, the particulars of local land use have varied significantly between different hamlets due to different 'lies of the land', cash compulsions, preferences etc. It is worth recounting these differences in the two hamlets studied. In Kattangattupatti, millets and minor millets were the major crops grown on poramboke land whereas in Edappukkadu poramboke land has for some time been used almost exclusively for pineapple. The plantations have, in other words, displaced different crops in the two hamlets. While minor millets are foodgrains for local consumption, pineapple is a cash crop for commercial purposes. Clearly, therefore, the two communities have historically made different choices in terms of how they have utilised their land resources (both poramboke and patta). These land use differences are to some extent also the result of different economic compulsions. With the increasing cash demands of the local economy, growing cash crops has become a necessity in the Kolli Hills. Residents in Edappukkadu, due to their smaller average land size-holdings have put greater emphasis on deriving cash. The indication is that their monetary needs (purchases/debts etc.) were greater than those in Kattangattupatti. As a result, they have grown cash crops on both patta and poramboke land. The residents of Kattangattupatti, on the other hand, due to the significant amount of poramboke land they had were satisfied with growing tapioca only on dry lands. As a result of these different strategies, the impact of the plantation has also been different; residents in Kattangattupatti have lost out on minor millets and residents of Edappukkadu on cash crops.
Thus, while not denying the commonalities, the comparative narrative is meant to illustrate that even within a common customary domain such as the Kolli Hills, there are significant differences in local land use patterns (rules in use) as a result of different subsistence strategies and strategies for meeting forest produce needs. Conceptually, this implies the presence of multiple types of forest dependent communities[35] not a single forest-dependent community - even in small regional contexts such as the Kolli Hills - and thus the need for forest management strategies which recognise these differences. Equally important, these case studies both illustrate that forest produce needs must be contextualized in the wider gamut of local subsistence strategies.
Understanding the customary, however, should not mean that the statutory is completely marginalised. The statutory is not seen locally in complete opposition to the customary. There are a number of reasons for this: (1) the statutory does not exlcude the customary totally. While in legal terms, local communities might be barred from using different types of land (reserved forest, poramboke etc.), in practice there is some amount of flexibility. Second, the statutory has to some extent tried to retrieve (or preserve) the customary. At one level, this has occurred in terms of recognising customary rights to forest (albeit incompletely). At another level, it has been in terms of 'ignoring' violations of statutory law. Finally, the statutory is a means to bypass or overcome the limits of the customary. As highlighted above, individuals are increasingly resorting to the police and courts to lay claims over land or legitimize their existing claims. Thus, disentangling the customary from the statutory is itself a problematic exercise. While it may be 'customary' to cultivate minor millets on poramboke land, is it still customary to make use of silver oak from the same land?
4. Customary Law and
Sustainable Forest Management
What emerges from the last section is that the retrieval of the customary should be done with some care. A close look at local land use is an important starting point.This perhaps is self evident, but yet it is often neglected. The presumption that customary forest law is law about forest use is commonly made. Consequently, not only is the 'forest question' misunderstood, but equally important what local priorities are. Forests and forest resources must be understood within the wider production process. It was illustrated earlier that forests in tribal Orissa and the Kolli Hills might be of different significance in terms of their function and contribution to local livelihood strategies. Forest resources in the Kolli Hills are basically important in terms of fuelwood and fodder. These forest produce needs can to a significant extent be met from other lands, i.e. non-forest lands. However, while forest produce collection from non-forest lands must be examined, at the same time the importance of this land in terms of cultivation should not be ignored. The struggle for forest produce, in other words, must be seen within the context of the struggle for cultivable land.
The confrontation between statutory forest law and customary forest law must, therefore, be understood essentially as a struggle about land in general. The imposition of state property rights during Forest and Revenue Settlement imposed major entry restrictions on the Malaiyalis which resulted in less cultivable and productive land. While state proprietorship has not fully restricted local use, it has signficantly increased the costs of use. This has become even more pronounced in the recent past because much of this land is now being used for purposes such as afforestation (plantations).
The implications of this are significant in terms of the potential for local forest management. While it may be possible to entice communities to participate in the management of forests in the short-run, in the long-run pressure on cultivable land could result in pressure on forests. In the past, poramboke and assessed dry waste were all cultivated despite the fact that property rights rested with the state. Forest produce was also often collected from these lands. Though these lands are still used for cultivation and collection of forest produce, they are clearly less available, forcing communities to venture into reserved forests more and more.
What this highlights is that questions of sustainable forest use in the Kolli Hills are intertwined with wider land use practices. Studies of customary law must understand what these practices are. This paper has been an attempt to be more holistic in the interpretation of customary law and to break away from the agrarian-environment divide which has become embedded in much of the discourse around forest management. While the paper has focused on the 'social' dynamics of land use, implicit in the argument is the contention that these dynamics are critical to questions of ecological sustainability as well. Further studies should explore these land use dynamics and conflicts more closely and attempt to look more rigorously at differential impacts within the community (class, caste and gender).
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[1] An earlier draft of this paper was presented in the Panel Session 'Asian Resources in Transition: Implications for Customary Law' at the XIIIth International Congress on Folk Law and Legal Pluralism held at Chiang Mai, Thailand between April 7-10, 2002. Thanks are due to the participants for their comments. Thanks are also due to K. Gnanaprakasam who helped me with my fieldwork while I was doing my PhD and whose insights have been central in shaping my own ideas.
[2] Fellow, Centre for Interdisciplinary Studies in Environment and Development (CISED), ISEC Campus, Nagarbhavi P.O., Bangalore 560072. Email: ajit@isec.ac.in.
[3] Forest question is used here to refer to the debates around forest use and management.
[4] While this section is an attempt to critique some of the parameters in which the legal pluralism discourse locates itself, it is not meant to be a comprehensive assessment of all existing literature. A good review of legal pluralism can be found in Meinzen-Dick and Pradhan (2002).
[5] Mamdani (1996) in his book Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism talks about how the 'customary' has been reinvented by the state. Here our concern is more how the customary is reinvented by the scholar.
[6] Although the provisional population figures are available for the year 2001, village level data is yet to be published.
[7] A revenue village is the most decentralised revenue category in India, while panchayats are the lowest tier of the panchayati raj system. In the Kolli Hills, panchayats and revenue villages correspond except for in Alathur and Edappuli Nadu which comprise of two revenue villages each.
[8] Of course there are inter-taluk differences within both the Namakkal and Rasipuram side of the hills.
[9] Reserved forests are state owned forests. Local communities only have rights of usufruct if they have been granted them at the time of Forest Settlement.
[10] Only local and botanical names are given here.
[11] Most of the land on the slopes of the hills are not classified within any village or they are called uninhabited villages.
[12] I was unable to quantify the amount of forest produce collected from the reserved forests because people did not have fixed patterns of collecting forest produce. Many households indicated that they collected forest produce from the forests whenever it was necessary. It was also difficult, as a single researcher, to monitor the multiple entry and exit points to forests in order to ascertain how much produce was collected.
[13] Forests, as popularly used, invariably coincides with a legal category. The point we are making is that 'forests' in the local imagination do not necessarily coincide with the legal classification.
[14] This point is not a new one. Sivaramakrishnan (1999) speaks about agro-forestry in transition zones. Here my point is, however, slightly different. While agricultural lands and forests are quite clearly demarcated, each of these different types of land categories have multiple land uses. So agricultural land might have agriculture as its dominant land use, but it is also used for collecting forest produce.
[15] The distinction between land ownership and use is fundamental to the argument. I argue that a thorough understanding of local land use patterns is necessary to retrieve customary law in the Kolli Hills and to understand the conflict between statutory and customary law.
[16] The use of the word 'emerged' suggests that the reconstruction of the customary has been done with reference to some of the earliest colonial records about the Kolli Hills. The customary, in that sense, is being recovered through the gaze of the colonial authorities.
[17] Kombe villages were villages at the foothills which fell under the jurisdiction of the Malaiyalis' administrative system. These villages were inhabited largely by Malaiyalis and served as a link between the hills and the plains.
[18] I was unable to get details about rates of taxation for different types of land.
[19] Transaction costs were high because state officials could decide at any point of time (with or without recourse to law) that encroachment was taking place.
[20] D-card patta land is land which was redistributed to tribal households. It normally was assessed dry waste lands prior to redistribution.
[21] The 'objective' criteria considered is mainly distance from reserved forests.
[22] Households (and especially women members) expressed their preference on a regular basis that sources of forest produce should be located in close proximity.
[23] A farm household is a household which cultivates land together. It might not necessarily coincide with the distribution of actual pattas. Census households are households which share a kitchen and are therefore not the appropriate unit of analysis for examining land dynamics.
[24] D-card patta land is assessed dry land distributed to tribal households under the Land Reform Act.
[25] The word 'productive' is not used in any technical sense. In fact, there is a case to be made that land classified technically as unproductive or barren and uncultivable is often utilised locally for some purpose or the other. Productive land, as used here, is synonymous with utilised land and therefore encompasses all the land in the hamlet excluding that put to non-agricultural use.
[26] The high percentage of poramboke land is not consistent with macro figures for the Kolli Hills as a whole. It is important to highlight that these land use categories are as defined by the respondents.
[27] Kollakadu, in many instances, is cultivated with minor millets. The land termed as non-cultivable is only a sub-set of total kollakadu. In other words, some of the cultivable poramboke land is considered kollakadu.
[28] The fact that locally people consider the plantation as a social forest is testimony to the fact that they consider the plantation theirs and also that they have some access to it.
[29] The distinction made here between physical loss and access loss is not directly one of property rights or ownership. Even before the plantation, the state owned the poramboke land. However, since the land was left unutilised, access to it was much easier.
[30] Tapioca production in the Kolli Hills was actively promoted by the State in the 1970s as a means to commercialize agriculture in the hills.
[31] One of the main reasons for the failure of social forestry experiments in the 1980s was that fuelwood grown on community woodlots were sold in the open market.
[32] Though illegal felling does take place in the Kolli Hills, moving illegally felled wood out of the hills is quite difficult because of the terrain.
[33] Although tapioca only fetched between Rs. 70-100 per bag (75 kg) in 1997, 100-175 bags were obtainable per ha, at least ten times more than even paddy on wet land.
[34] Although it is difficult to provide any exact information with regard to the average income derived from pineapple, pineapple unlike most foodgrain crops is marketed.
[35] There has been a tendency within the literature to make sweeping statements about forest-dependent communities. A main aim of this paper has been to suggest that there are significant differences within the category of forest-dependent communities itself.