Whose Forest is it?
Customary
rights and Legal Pluralism in Joint Forest Management in Orissa
Satyapriya Rout*
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
(27-42)
Setting the toneÉ
Competing claims over natural resource have been one
of the important characteristics of Indian environmentalism[1]. Consequently, conflicts over natural resources, such
as forest, water and land, have become a ubiquitous theme in Natural Resource
Management (NRM) literature in recent decades (cf. Buckels, 2000; Ayling and
Kelly, 1997; Sarin, 1996). Even the issue of community management of natural
resources has not been able to keep itself away from conflicts due to existence
of multiple stakeholders who enjoy different rights and claims over the same
resource base. The question, then
is, why does conflict occur over natural resources? The answer could be its
intrinsic characteristics as well the varying approaches towards its management
with different objectives.
The basic physical nature of natural
resource is such that it is embedded in an environment where action by one
individual or a group of individuals to capture it may affect the amount of resource
available for others. For example the use of forest by one community reduces
the availability of it for other communities. The complex and unequal power
relations between wide range of actors in the social space where the natural
resource is embedded also forms a reason for conflicts. Actors with greater
access to power and government agencies are better able to control the natural
resource and influence the policy in their favour (Peet and Watts, 1996;
Buckels, 2000). The symbolic meaning and the identity that are attached to
natural resources also often lead to conflicts among different users (Buckels,
2000). Forest, land and waterbodies are not just material resources people
compete over, rather, they are also part of a particular way of life, which
generate certain ethnic identities.
Further, conflicts over natural resources
arise also because several stakeholders with opposing interests Ð local people,
commercial enterprises, state agencies and non-governmental organisations Ð
approach natural resource management with different objectives. One commonly
found example is that of subsistence security oriented activities for
livelihood who may come in conflict with commercial interests of resource
extraction for market and both may conflict with national policies aiming at
conservation of the resource.
Even while finding answers to the above questions, we are left with another question as to how to understand the differential claims that different stakeholders put forth to justify their rights over the resource. Such different social, economic and political interests over natural resource and the emerging conflicts out of it are expressed in several ways and find their basis in different systems of normative ordering (F. and K. Benda-Beckmannn, 1997). Viewed from a legal perspective, several set of laws or normative orders - local folk law, religious law, state law and various forms of self-regulation Ð are taken into consideration while claiming differential rights over the natural resource. In case of such conflicts of differential social, economic and political interests, different legal systems are inevitably involved to assert and justify oneÕs own claims. Thus, a monolithic perspective of state law as the dominant one may not serve the purpose of either understanding or resolving the conflicts. In such a context, Ôlegal pluralismÕ, which acknowledges and tries to explore multiple legal and normative orders that individuals or communities make use of to rationalise and legitimate their competing claim, serves as a better framework.
Scope of the paper
The paper explores different conceptualisations of rights over forest and the consequent conflicts from a legal pluralism framework. By focusing on one Indian state, i.e. Orissa, the paper examines variety of legal statuses attached to the forest and the resulting confusions created in the Joint Forest Management (JFM). The paper discusses the state narratives of JFM and tries to explore the disjunctures and differences between state perspective (dominant state law) and local notions (subordinate customary law). The empirical work for the paper has been carried out in two villages in the Dhenkanal District of Orissa. Case study method, supplemented by group discussions and in-depth interviews with key informants have been used to elicit necessary information regarding the conflict between two villages over the use and management of forest resource.
Before going deeper into the issue of differential rights over the same forest patch and the resultant conflict between the two villages, and introducing the concept of legal pluralism to the concrete context of conflict, it is instructive first, to engage in a theoretical discussion of legal pluralism; and second to trace the history of Joint Forest Management in Orissa, discussing its current legal aspects. Following these two sections, the third section depicts the nature of conflict between the two village communities chosen over the issue of use and management of forest through JFM programme bringing out the loopholes in the state policies towards natural resource use and management. The fourth section engages in the application of legal pluralism to the concrete case of conflict, discussing the issue of changing property rights and mechanisms involved to ensure it in the context of forest resources.
1. Legal Pluralism : A
Theoretical Understanding
Acknowledgement of more than one set of legal systems
available to take resort to and deconstruction of conventional
conceptualisation of law in society, which assigns state with the law making
activity as its sovereign power, becomes the point of departure for an
understanding of legal pluralism[2]. In the conventional conceptualisation, law is viewed
as deriving from the notion of sovereignty and the stateÕs monopoly of
legitimate use of violence. The legitimate authority of the state as the sole
lawmaker is based on the normative notions of internal and external
sovereignty, which encompasses Ôthe stateÕs authority to exercise exclusive
control over the population that inhabits a territory and the wealth and
resources that exist within the territoryÕ (Beitz, 1991; F. von
Benda-Beckmannn, 1997). However, over the last few decades legal
anthropologists have challenged the stateÕs prerogative of law making as an
important form of legitimate power and assertion of its sovereignty,
emphasising its non-monolithic characteristics.
To begin with, state is not a monolithic
block having just one set of legal claims. Several institutions of state
mechanism often come out with contradictory policies, which are based on
different sets of legal regulations and pursue different interest (F. and K.
von Benda-Beckmannn, 1997: X)[3]. Within the single statutory legal system, different
federal, provincial and local laws coexist and a multitude of individuals or
institutions are involved in creation and maintenance of such legal orders.
Individuals, groups or communities at sub-national level may make, maintain and
un-make their own laws of membership and rights over certain resource. These
newly created laws may either be re-interpreted versions of state law, or may
also be based on different normative orders such as folk, customary and
religious legal systems. Further a single legal repertoire may have different
functions in different settings, such as in government offices and community
lives, a process, which Keebet and F. and K. von Benda-Beckmann (1991) term as Ômulti-locality of lawÕ.
Spiertz (2000) from his study of water rights in Balinese villages demonstrates
how law and normative institutions mean differently in different localities and
function as a double-faced medium, which is Ôboth an instrument of government
policy as well as an instrument of local interest managementÕ.
One
of the important characteristics of legal pluralism is that instead of viewing
law as a static phenomenon, it conceptualises law as a dynamic force, which can
be modified and negotiated to suit into situations concerned. In most domains
of our day-to-day life and in most social spheres, more than one legal system
becomes relevant. As Moore (1973) points out, Ôbetween body politic and
individual, there are interposed various smaller organised social fields, which
are more or less formally organised, to which the individual belongsÕ. And
where these social fields have the power to generate and enforce rules and
regulations, they become Ôlegal fieldsÕ (Spiertz, 2000: 181). For legal
anthropologists, law is not limited to acts, rules, administrative orders or
court decisions of what is right and just, created and enforced by state
machinery. Rather, to agree with Moore (1973), law is Ôthe cognitive and
normative ordersÕ generated and maintained in Ôsocial fieldsÕ. Wiber (1995)
argues that much of the rules that average people experience, such as rules
about where they can live, how they get access to water, land and forest, just
come from these Ôsocial fieldsÕ.
Legal anthropologists analytically
distinguish the existence of law as a Ônormative repertoiresÕ derived mostly
from stateÕs legitimate authority from existence of law in the social spheres.
Legal repertoires just Ôhand in the airÕ, unless and until the ÔwhenÕ and
ÔwhereÕ of their actually becoming a social factor is not concretised (Spiertz,
2000: 183). It is the social sphere or Ôsocial fieldsÕ as Moore (1973) phrases
it, which makes the abstractions of legal repertoires a set of social facts or
concrete laws. This examines the distinction between law as study of rules and
actual behaviour of practicing those rules. Relationships between rules and
behaviour can only be studied by looking into real life situations in different
time and space. As Geertz (1983) puts it law is the distinctive manner of
Ôimagining the realÕ.
For example, though water rights are
constructed by legal orders, the actualisation of legal rights, F. and K. von
Benda-Beckmann (2000) argue, are effected by social processes. This is because
water rights are embedded in social, political and economic relationships.
Likewise, Adhikari and Pradhan (2000) describe how in a river basin in Dang,
Nepal, with every change in political regimes at center, a different set of
elites emerged who controlled the decision-making institutions that allocate
water shares to farmers. Such examples not only indicates the relational nature
of law and society and the process of actualisation of normative repertoires in
the context of social fields but also reflect the embeddedness of law in
social, economic and political spheres. Meinzen-Dick and Pradhan (2001: 15)
aptly put it in the context of water rights, Ôwhat one holds in hand is not
water, but relations, relations which are often hierarchical, fluid and
transitory in nature and subject to changeÕ.
Early
scholars of legal pluralism conceptualised it as Ôthe accommodation of variety
bodies of law, i.e. customary, religious and state law within national legal
systems, applicable under specific conditions to different ethnic, religious
and racial groupsÕ (cf. Sawyerr, 1974 in Spiertz, 2000: 179). Such a version of
legal pluralism reflects the attempt of colonial governments to legitimise
western colonial rules of domination and subordination in the colonies, while
at the same time recognising some of the traditional legal practices of
indigenous people and creating separate socio-economic and legal spheres for
them. However, such accommodation of local traditional legal orders have always
remained subservient to dominant state (colonial) law during the period of
colonisation, and in the subsequent periods of state formation. The increasing
and active presence of state in the domains of social life of people in the
name of sovereignty after decolonisation, led the legal anthropologists to come
out with a different version of legal pluralism, which moved beyond the mere dichotomy
of Ôformal state lawÕ versus Ôlocal customary lawÕ. Legal pluralism as is
understood today, refers to coexistence of multiple legal systems pertaining to
one and the same domain of social life (F. von Benda-Beckmannn, 1983). Instead of focusing on dualistic
opposition of state (formal) versus non-state law (customary/local), legal
pluralism started focusing on the tensions and contradictions within and
between interacting repertoires of law.
Any attempt to study the actual social
significance of law should not limit its scope to the state centric formal
legal repertoires, rather it should view state law as a part of multiplicity of
normative repertoires of society. Legal pluralism thus, should include in its
framework all instances where other non-state, officially non-legal
institutions create and maintain normative orders. Notwithstanding the
universal importance of state law to maintain order in social life, they still
very often fail to coincide with communityÕs perception of rights over natural
resource and the ways in which communities manage and appropriate natural
resource at the local level. Despite the supreme power of the state mechanism,
its capacity to enforce its laws sometimes is constrained by several factors
including social forces and local customs. For example, despite state law
prohibiting untouchability and adopting policies of positive discrimination,
lower caste people are usually excluded from the decision making process. At
the same time, taking resort to local customs alone is also not pragmatical,
since all customary laws exist in the broader context of state law. ÔLocal
customary laws rarely exist in isolation of the state legal history, rather are
complexly intertwined with itÕ (Meinzen-Dick and Bruns, 2000: 25 Ð 26). Thus,
natural resource policies, which aim at improving the sustainability of the
resource should be based on all the legal repertoires available in a particular
context.
In situations where more than one sets of
legal order exist, as the case in most social domains, conflicting claims are
legitimised and rationalised taking resort to any one of the legal repertoires
available to people from a set of normative orders. Which of the specific legal
order one will chose to justify his/her claims is not known in advance, since Ô
which specific repertoire, in which specific case, people will orient
themselves to, will mostly be a matter of expediency, of local knowledge,
perceived contexts of interaction, and power relationsÕ (Spiertz, 2000: 191).
K. von Benda-Beckmannn (1984) calls this process of using different normative
repertoires at different contexts to support and rationalise oneÕs claim as
Ôforum shoppingÕ. It has been a well known case in natural resource management
how local power relations affect the process of resource use and management,
with those having access to power and government agencies being capable of
influencing the state policies in their favour, besides being powerful in the
local context to claim a greater share from the resource.
To summarise the argument, legal pluralism holds the notion
that any social domain is capable of generating and enforcing normative
repertoires and it is thus possible to have several sets of law. Besides formal
state law designed by state legislature and enforced by government agencies,
they may include: religious laws, consisting of both written and unwritten
religious doctrines and practices; local customary laws expressing peopleÕs own
values; project or donor laws, including regulations associated with particular
developmental projects; organisational law, which are made by user groups; and
a range of local norms and practices (Meinzen-Dick and Pradhan, 2002). Such
coexistence of multiple legal orders or normative repertoires within a single
social domain is called legal pluralism.
2. Joint Forest Management in Orissa : The
State Narrative
Recognition of the traditional rights of local people
over forest, though in a limited sense, and the subsequent policy changes of
involving them in its management through legal means has been an important
phenomenon in the last two decades of twentieth century. At the national level,
the historical ground for Joint Forest Management was prepared by the New
Forest Policy, 1988; which emphasised environmental protection and
conservation; and meeting the requirements of fuelwood, fodder, minor forest
produces and small timber for rural and tribal population; and creating a
massive peopleÕs movement with involvement of women for achieving these
objectives. On June 1, 1990, Government of India adopted a National Joint
Forest Management Resolution, which set guidelines for partnership between
local communities and state Forest Department for the protection and management
of state owned forests through Forest Protection Committees. Responding to
this, Government of Orissa issued its state JFM Resolution on July 3, 1993[4],
making the beginning of JFM as is understood today, in Orissa[5].
Joint Forest Management is a concept of developing partnership between forest dependent communities and the Forest Department on the basis of mutual trusts and jointly defined duties and responsibilities for forest protection and management. In this model of forest management, people dependent on forest are to be consulted and their views are to be taken as the basis of management plan for the forest. The execution of management plan is to be done through Village Forest Protection Committees, which is constituted by taking two members from each family (one male and female), maintaining complete transparency in all maters.
The Joint Forest Management Resolution of Government of Orissa entrusts with the Gram Panchayat the duty to convene a general meeting of all adults living in the selected village on the suggestion of the concern D.F.O/Range Officer/Forester, where the forest Official/s will explain the scheme of Joint Forest Management to the villagers. Based on the response, motivation and willingness of the villagers and after taking due account of other related factors facilitating the community protection of the forest, the D.F.O will recommend the establishment of Vana Samrakshana Samiti (VSS) or the Forest Protection Committee of the village, the institution responsible for protection and management of the forest area. According to the resolution, the VSS should include two adults, including one woman member from every household living in the village as its members.
Under this new Joint Management Plan, the protection and management responsibility of the forest patch is totally entrusted to the members of the forest protection committee. It shall be the duty of the members to prevent forest offences and pass on relevant information and intelligence in this regard to the forest department officials. The management activities of the forest are to be carried out by the executive committee of the VSS. Each VSS should have its own executive committee comprising ten to fifteen members, comprising of peopleÕs representatives including members of scheduled Castes and Tribes, women and concerned forest officials. The concerned Forester of the locality and the Naib Sarpanch (Vice-President of the Gram Panchayat) would be the convener and chairperson of the executive committee respectively. It is stated in the Joint Management Plan that usufructs like leaves, fodder, grass, thatch grass, broom grass, thorny fencing materials, brush wood and fallen lops and tops and twigs used as fuelwood shall be available to the members of the VSS free of cost. It shall be the duty of the executive committee of the VSS to ensure equal distribution of all intermediate yields in the shape of small wood poles, firewood, etc., as may be obtained in periodical clearance of the forest. However, the timbers and poles as may be obtained from a major harvest or final felling shall be shared equally between the Forest Department and the VSS.
The official version may have several flaws in it. However, for the present purpose, let me confine the discussion only to institutional aspects. Institutions play a decisive role in community based resource management and may be defined as humanly devised systems, consisting of both formal and informal rules, that structure the interaction of its members in social, economic and political arenas (North, 1991; Ostrom, 2001). In the case of community based resource management institutions determine who should be allowed to access the resource and who should not; how the resource should be appropriated among the members, how much resource unit each member can appropriate from the resource system, etc. As has been mentioned earlier, Orissa has had a strong history of community management of forest through traditional institutions, where the rules governing resource use and management had come mostly from local customs and norms, revolving around local social and religious practices and local leadership. These traditional institutions have made and enforced several normative orders, concerning restrictive use of the resource, drawing from different legal repertoires, such as customary, local and religious[6].
Joint Forest Management in Orissa shows a glaring example how those customary and local laws are violated and state-centric monolithic law was imposed on people concerning forest use and management. The formal institutional arrangements as designed by the JFM policy for the people not only failed to accommodate the existing traditional, customary, religious and local laws into account, but also ignored them imposing its notions of law and what is right on the people. Little room was there for the local people to adhere to their own existing laws and normative practices while creating the new institutions as required by the JFM policy.
Such negligence of local customary laws by the state may not in any way be attributed to its ignorance. The responsibility of formation of the institutions for JFM was with the local forest officials who cannot be said to be ignorant about peopleÕs customs or traditions, and the normative orders that follow from these. Instead, it reflects the stateÕs attitude of monopolising the law making authority and imposing its supreme power, which it derives from the very fact of its being sovereign, rejecting the existence of any other parallel institutions of law. It indicates only the formal institutional arrangements created by the state are Ôlegal and validÕ and all others are Ônull and voidÕ; and thus, people, in order to involve themselves in forest protection and management, should form institutions as prescribed in the state resolution. Such reductionist attitude towards non-state legal institutions has not only affected the customary local laws of the people and their institution, but also in a significant way has affected the natural resource itself[7].
Having initiated the discussion of the disjuncture between state and non-state legal orders in the JFM in Orissa, let me structure my argument in two specific points. First, the 1993 JFM resolution of government of Orissa categorically states that
ÒÉ
only those areas will be selected where the villagers of the adjacent village are willing to offer
active cooperation in regeneration and protection of the forest area; and only
such villages shall be involved which are situated adjacent to the forest
areaÓ
By assigning the management responsibility only to the adjacent village, the JFM policy ignored the customary rights of non-adjacent villages over the forest. There are several village communities who do not reside near the forest area, still enjoy property rights over the forest and use the resource for day-to-day requirements[8]. And as per the new legal arrangements these communities do not picture in the management affairs of the forest and hence, loose their rights based on long standing customs and norms. Such negligence clearly reflects the varying intentions of the two sets of legal orders. The local customary laws were designed to fulfill the basic requirements of the local population (not necessary of the village adjacent to the forest, rather the requirements of the whole region) in a structure way so as to ensure the sustainability of the resource, which in turn guaranty a sustainable livelihood to them. On the contrary, government policy of involving local people in forest management had the intention of increased forest cover, discarding the livelihood requirements of people. The government policies failed to understand that the livelihood needs of several villages hovers around the same patch of forest, and the local legal (or para-legal) arrangements capture this better.
The second issue, which indicates the conflict between state and local legal orders, relates to the question of leadership. The state JFM resolutions states that Ôeach Vana Samrakshana Samiti (VSS), the local level institution responsible for forest protection will have an executive committee of which the Naib Sarpanch (vice-president) of the Gram Panchayat in which the concerned village falls and the forester will be the chairperson and secretary respectivelyÕ. Several issues emerge from this legal statement. First, in traditional rural societies each village is an independent social domain or unit having its own leadership structure, which encompasses the whole social domain of village life; and the customs and normative orders that legitimise the structure[9]. In such a situation any imposed outside leadership structure would not command the desired authority from the members of the village, besides conflicting with the existing leadership of the village. Thus, vice-president of the Gram Panchayat or the forest officials as the leaders of the village institution, which the state narrative of JFM creates, violates the local customary normative orders, ignoring the local traditional institutions and its legitimate authority.
Secondly, the Panchayat vice-president, who may not come from the same village, shall not have the same commitment and dedication towards forest protection and requirements of the people as the leader from the concerned village will have. Besides, as the vice president s/he may have to take the leadership of several Forest Protection Committees that fall within the Panchayat jurisdiction, a condition in which s/he may not be able to do justice to his/her responsibilities. The similar argument also applies to the forester being the secretary of the each Committee falling within his/her jurisdiction.
Having gained a theoretical perspective on legal pluralism, and discussed the state narrative of the JFM in Orissa and the differences that it creates between state and other sets of legal institutions; let me now move forward to apply the framework of legal pluralism to an empirical case of conflicts over forest rights between two villages. This facilitates us to understand the contradictions and interactions between multiple sets of legal orders through an analysis. The section that follows depicts the case study of violent conflict between two studied villages over the issue of access and right over same patch of forest.
3. Conflicts over Forests Rights: The Case Study
The empirical work for the research was carried out in
the Dhenkanal district of Orissa. For the purpose of the empirical work, two
villages were chosen, namely Nagiapasi and Beltikiri from the
Dhenkanal Sadar Block of the district[10].
Both the villages are adjoining having at a distance of three kilometer from
each other. Rampa, a small hamlet
of Nagiapasi divides the two villages from each other. Beltikiri is the
Panchayat headquarters to which the village Nagiapasi falls. The villages are
situated to the east of Dhenkanal town, the district headquarters, at a
distance of about 25 kilometers. Being the Panchayat headquarters, the village
Beltikiri has better civic amenities, having a small dispensary, a nationalised
Bank and a college offering intermediate degree. A narrow pakka road, which
runs from the district headquarters to Kapilas temple, connects both the
villages with Dhenkanal town.
Beltikiri is a bigger village, having a total of 500 and odd households, compared to Nagiapasi, which has 155 households. The social structure of the both villages is more or less similar having representation from various castes and sub castes found in Orissa. Khandayats (traditional warrior caste) are the numerically dominant caste in both the villages. Besides, people from other castes such as Brahmin, Karana (traditional record keepers), Barber, Milkman, Washer-man, etc. also reside in these two villages. Both the villages have Schedule Caste and Tribal population, who derive their livelihood mostly from the forest-related activities.
Location wise, Nagiapasi is the adjacent village to the forest and thus is more nearer to the forest than Beltikiri. The villagers of the Beltikiri have to trespass through Nagiapasi to access the forest. Traditionally the villagers of Nagiapasi and Beltikiri were sharing the same portion of the Kapilas Reserve Forest, which is adjacent to the Nagiapasi village. There is no specific historical record when the two villages started sharing the forest with each other. Yet as an octogenarian in Beltikiri village recalls, ÒÉ during our period we (villagers from both the villages) all used to go to the forest together to cut fuelwood for our common village functionsÓ. It reflects how the socio-religious functions of the village life influence the interaction between members of the village and their relationship with forest. Though there were no firm rules regarding use of the forest between these two villages, yet earlier incidents of conflicts between these two were not reported to the researcher during fieldwork, a factor which may be attributed to the non-scarcity of the resource and cordial relation between the villages. However, the situation changed with time when the scarcity of the resource was felt with denudation of the forest area.
In the early 90Õs when the government of Orissa came out with policy reforms to involve local people in forest protection and management, the villagers of Nagiapasi wanted to take the responsibility of forest protection and register their Forest Protection Committee with the Forest Department, government of Orissa; and in this regard gave a written application to the local forester. Catering to their interests, the local forester conveyed a meeting at the Nagiapasi village towards the end of 1991, and provisionally formed the Nagiapasi Forest Protection Committee, the subsequent registration of which depended upon satisfactory performance of the Committee. To gain the certificate of Ôsatisfactory performanceÕ the Nagiapasi people gradually started prohibiting others from entering inside the forest patch with the justification that they now have legal rights over the forest, which also includes denying rights of other villagers over the forest, including Beltikiri. Such a situation germinated the potential for a virulent over the issue of having access rights on forest.
To combat such a situation the local conflict resolution mechanisms started gearing up. After much negotiation among and between villages, a meeting of several villages was called by an ex-legislature of the area in January 1992. In the meeting, it was decided that all the villages surrounding the Kapilas Reserved Forest of the area should have the right over the forest to derive their livelihood from it. Intentionally or un-intentionally Beltikiri village was absent in the meeting. Any sound reason was not found out why the village was missing from such an important meeting, since both the villages are of differential opinion regarding this. Beltikiri people decided that since they were not a part of the meeting the decisions taken in the meeting also do not apply for them; and they, thus continued using the forest as before. Besides they also questioned the legitimacy of the meeting, since it was called by an individual who belongs to a political party, and is thus not impartial. The Nagiapasi, however, opposed the rights of the Beltikiri over the forest, which in their opinion then belonged to them. Anticipating a serious conflict between the villages, the Divisional Forest Officer (DFO), the Collector of the district, the local legislature and some other important personalities of the locality tried to renegotiate the issue between the two villages and called a meeting in this regard in September 1992. In this meeting it was decided that both villages will share the responsibility of forest protection and shall enjoy the right to access and use the forest together. Nagiapasi shall have the right to access the forest four days a week and the remaining three days were reserved for Beltikiri. The DFO officially announced the formation of Nagiapasi-Beltikiri Forest Protection Committee and the President of the Beltikiri Gram Panchayat was appointed as the president of that committee.
This negotiation led to further conflicts between the villages. At the out set, the Nagiapasi did not accept the leadership of the Panchayat President as the Forest Protection Committee, since he was from Beltikiri. Secondly, they complained that Beltikiri is not properly fulfilling its responsibility of guarding the forest at night, and on the contrary, appropriating more from the forest in just three days than Nagiapasi[11]. To make Beltikiri out from the Forest Protection Committee, the villagers of Nagiapasi organised themselves to totally deny Beltikiri access in to the forest. As a first step, they gathered together in a large number and prohibited the Beltikiri people to trespass through their village, which has been the usual root for Beltikiri to enter into the forest. Seeing the Nagiapasi people in large numbers, the Beltikiri people stopped coming to the forest. However, to fulfill the day-to-day livelihood requirements, that they were deriving from the forest, people started taking resort, such as entering into the forest at night or in the absence of any guard to steal forest produces.
The tension between both the villages remained unheard for a brief period and villagers from Beltikiri continued to retain their rights over forest through stealing. In between the Orissa government came out with its JFM policy resolution in July 1993 and Nagiapasi Forest Protection Committee signed the Memorandum of Understanding with the Forest Department taking the responsibility of forest protection. The Beltikiri was kept out of JFM Committee since geographically it was not adjacent to the forest. Besides, in the mean time, Nagiapasi had shown sincere interest and motivation for forest protection, a condition, which was put forth in the beginning when the Forest Protection Committee was formed. Being recognised by the Forest Department as a Forest Protection Committee, Nagiapasi then wanted to enjoy exclusive rights over forest and started patrolling in the forest to catch forest thieves from Beltikiri. In September 1993 Nagiapasi caught some people from Beltikiri, while they were stealing forest produces and were taken into the village. They were harassed in Nagiapasi and were fined Rupees ten each. To take revenge of this humiliation and being fed up with the act of stealing like thieves, Beltikiri organised itself in a mass scale and enter Nagiapasi forcibly with Bamboo sticks and other weapons in their hands. They declared inside the village that they will destroy both the Nagiapasi forest and those who will protest them from entering into the forest. Further, they marched towards forest and cut a few trees form it as a symbolic exhibition of their rights over it.
In reaction of such an act by Beltikiri, Nagiapasi prepared itself for a counterattack. Several meetings were held in the village how to teach a lesson to Beltikiri. A week after this incident, Nagiapasi was determining its strategy for the conflict in a meeting in the village school. The news somehow reached Beltikiri that Nagiapasi is preparing itself for an attack, and immediately around three to four hundred people from Beltikiri rushed to Nagiapasi. This resulted in a violent clash between two villages in which one person was killed and several other were injured.
The consequences of this conflict were far reaching. The Beltikiri had to spare its rights over the forest to Nagiapasi, since by then, Nagiapasi had officially become a JFM village. Further, Beltikiri people also became the target of the Forest Department, since they have destroyed some trees during the process of the conflict. The murder case went to the court, but after some days it was sorted out outside the court premises with active involvement of higher police officials, forest officials, and important persons from the locality including the legislature of that area. Such a case of conflict over the forests can be put into the framework of legal pluralism to analyse how conflicting property rights are negotiated and different claims are adhered to for forum shopping in the process. The following section tries to analyse the case from a theoretical perspective.
IV
Discussion and Conclusion
Conflicting Property Rights
The above case study depicts how the two villages engaged themselves in a serious conflict over the issue of use and management of forest. In a manner of speaking, such a conflict to decide Ôwhose forest is itÕ Ð is nothing but the conflict over property rights over natural resource base. Property right is one of the most important institutions in natural resource use and management, which not only decides who will have access over the resource, but also determines the incentive structure that people gain from the resource. Analysing property rights within the legal pluralism framework gives us the scope to conceptualise property rights as a diverse and changing institution.
As F. von Benda-Beckmannn et al. (1996) argue, Ôproperty right is an Ôumbrella conceptÕ, which goes beyond the unitary concept of ownership and includes several types of rights to different forms and use of resourcesÕ. Property rights over natural resource may be defined as authority to control and undertake particular actions on it, which are recognised as legitimate by a larger collective and are protected through rules (Commons, 1968; Wiber, 1992; Schlager and Ostrom, 1992). Schlager and Ostrom (1992) identify four categories of property rights over natural resource management, such as access and withdrawal, management, exclusion, and alienation. These rights may be divided into two broad categories as use rights and decision-making rights.
Individuals or communities claim different types of rights over the natural resource. However, successful utilisation of the rights depends upon acceptance of those claims to right by a larger collectivity, of which state is only one entity. In every social domain, there exists more than one institutions, which accept and give legitimacy to property rights. As depicted in the case study, the Beltikiri continuously tried to establish its property rights over the forest. It is important to note here that Beltikiri took resort to several bodies of authorities to get its rights legitimised. First, conventionally Beltikiri used to have this right gained through tradition and customs, since it was a part of forest use along with Nagiapasi. In the years prior to 1990Õs Beltikiri and Nagiapasi had equal rights over the forest, and the larger collective of the members of both communities accepted rights of each other. Once such right was opposed by the Nagiapasi, it was negotiated and renegotiated twice, first in the domain of village social life and second, in the domain of forest and other administrative officials. State has not been the only legal authority to recognise the rights of Beltikiri. Between state and traditional customs and norms at the local level, there exist several bodies who design rules to determine who will have rights over the resource. The interference of ex-legislature of the locality to resolve the conflict serves as an example to prove such a claim. The ex-legislature did not possess any legal authority with him, neither did he have any formal position in politics during that period. Besides, he was not also from either of the villages concerned. Yet, his authority to create rules and impose them on people outside his community is well accepted by people, which imply multiplicity of legal orders existing in the same social domain.
Besides state and other parallel bodies of law making, social relationship among communities is a prominent one in determining property rights allocation. Though state and other institutions are capable of creating laws, yet their actual enforcement to a large extent depends on social domain. The property rights over forests in the studied villages have always depended upon the relationship between the two villages. When the social relations were cordial Beltikiri had no threat to its rights over forest. It is noteworthy to mention here that when the conflict took place between some youths of the two villages over the issue of local college election, it got reflected in the property right of the two villages. The Beltikiri people were denied to trespass through Nagiapasi, which was their usual root to the forest. It emphasises the fact how law is embedded in social domain and not merely an enactment issued by judiciary and enforced by state mechanisms.
It is not enough to say that both villages fought over property rights, we have to specify for which category of property rights that they fought. Conventionally both the villages were exercising use rights over the same patch of forest. When the issue of management came with the enactment of Joint Forest Management policies, Nagiapasi denied sharing management responsibilities with the Beltikiri and thus, rejected its claim to decision-making rights. On the contrary, Beltikiri not only wanted use rights over the forest but also a share in decision-making rights. When the Nagiapasi-Beltikiri Forest Protection Committee was formed in September 1992 in a meeting organised by some Forest and administrative official and other important personalities of the locality, with the Panchayat president as its head, Beltikiri accepted this since the Panchayat President was from that village. But Nagiapasi was not in favour of giving Beltikiri the decision-making right and thus rejected the validity of the Committee and formed its own parallel committee, which subsequently got recognition as a JFM Committee by the Forest Department, owing to the fact that Nagiapasi was the adjacent village to the forest to be protected.
3.1. Multiple Strategies of
Claiming Rights
There are several ways in which property rights were claimed by the two villages. On different occasions the two villages use different strategies to retain their property rights. When the conventional rights of Beltikiri, which they were enjoying based on local conveniences and norms, were denied the people of that village continued to express their claim through ÔnegotiationÕ, ÔstealingÕ and ÔforceÕ. The previous paragraphs have shown how forest rights were negotiated and renegotiated in several forums. It can be pointed out that state legal bodies such as courts and other judicial forum has never been the preferred domains to settle disputes and negotiate forest rights between the disputing villages. Most of the negotiations were carried on outside the state legal set up involving personalities, who do not possess any legal authority. Even the state officials including from the Forest Department tried to renegotiate the issue unofficially without entering into the complexity of legal procedures. Such a process indicates the non-monolithic nature of the state highlighting multiple sets of normative orders within the state mechanism. Negotiation, however, is always used as the first strategy to resolve any dispute. When negotiations failed between the disputing villages and villagers failed to come out with concrete property rights the other two methods were used.
Claiming property rights over natural resource through stealing has been a common strategy by several competing communities and individuals (Pradhan and Pradhan, 1996; Pradhan et al. 1997, 2000). Such a strategy is often used when property rights are denied, negotiations are failed and no other legal or licit means are available to claim rights over natural resource. Pradhan and Pradhan (1996) from their study of water rights in Nepal have described how water thieves have been able to secure rights to acquire water and in some cases even to have a share in water allocation and other decision-making processes. However, such a strategy do not always work out to be positive, and sometimes, as the case study shows, people stealing forest produce may be able to use the resource for a temporary period, but are often punished and denied a right over decision making process. Though Beltikiri people were able acquired forest produce through stealing, yet on occasions have been punished for this and were humiliated also.
The second strategy of asserting rights over forest taken in the present case is use of force. When the Beltikiri failed to gain rights over the forest by the act of stealing and its forest thieves were punished, they decided to forcibly enter the Nagiapasi village and its forest. But use of force in dealing with natural resource management is not always a viable strategy. It often leads to a further conflict with the state, which happens to be the owner of all the forest and water resources of the country. The conflict between two villages took another dimension, being a conflict between Beltikiri and Forest Department Ð a situation from which Nagiapasi wanted to take legal mileage.
Negotiation, even with the mediation of forest and administrative officials as in the present case, had never been the only option, and not always been the successful one to resolve conflicts in natural resource and establish firm property rights. When social relations between the negotiating parties are good, negotiation may be proved to be a viable option to decide about property rights and resolve disputes. In situations of adverse relations people usually take resort to other means discussed above to secure property rights. However, this does not lead one to think that social relations between the actors are the only criterion to decide which strategy would be taken to retain property rights. The existing power relation in the locality and availability of outside support, both legal and extra-legal often determines the strategies to be taken. The Beltikiri being a big village could dare to attack Nagiapasi and enter inside its forest forcibly. Nagiapasi with its less manpower and other resources, took resort to law to retain its claim over the forest.
3.2. Multiple Normative Repertoires
In situations of conflict over
natural resource, different claimants adapt different normative repertoires to
rationalise their claim and justify their rights. In the present case both
Nagiapasi and Beltikiri took resort to different sets of laws in the process of
Ôforum shoppingÕ. Initially when the dispute took place, Nagiapasi claimed that
as it had formed a Forest Protection Committee and taking the responsibility of
protecting the forest, it should only enjoy property rights over the forest.
Later when it gained the provisional recognition by the local forest officials
its argument became stronger and it claimed a legal status to the forest.
However, Beltikiri was not in a position to accept such a claim from Nagiapasi.
It tried to retain its status on the ground that it has been using the forest
since long and cited instances of age-old customs and norms, which allow both
villages to use the same forest for livelihood purposes. Further, they rejected
the legal status of the NagiapasiÕs Forest Protection Committee on the ground
that it has not been signed by the DFO and Nagiapasi could be able to bring
that provisional recognition from the local forest guard by illegal means.
Secondly, when the DFO and District Collector tried to negotiate the issue and set up a single Committee for both the villages with the Panchayat president, who was from Beltikiri village, as its president; Beltikiri welcomed the decision. It now claimed to have a legal status, since the committee was formed in presence of DFO. But Nagiapasi rejected this claim on the ground that the meeting was not official and DFOÕs presence in it was unofficial.
Thirdly, the presence of state laws and introduction of JFM made the situation more critical. NagiapasiÕs claim of monopoly over the forest got a momentum with the JFM law, which stated that only those villages adjacent to the forest shall be entitled to form the Forest Protection Committees. In front of the Ôdominant state lawÕ created through JFM resolution, Beltikiri could not hold its claim to property rights over the forest, which was backed by conventions, negotiations through local authorities and customary norms. Though one of the disputing villages adhered to the state law and the other to the local, yet the present conflict cannot be reduced to be a conflict between Ôdominant sate lawÕ and Ôsubordinate customary lawsÕ. It was observed that the non-state is as non-monolithic and diverse as the state is. There was not a single version of local customary normative orders. Rather several versions of such laws are created and rejected depending upon the situation.
Conclusion
In this paper, it is argued that multiple normative orders exist and operate through multiple authorities as applicable to a single social domain. The state centric monolithic perspective of law fails to acknowledge this in many situations; and even on certain occasions it acknowledges, it tries to reject it or dominate it with its supreme police power. Such a failure poses serious threats to community based resource management, discarding traditional and customary rights of people, which they seem to enjoy since long.
Understanding multiple sets of laws through the framework of legal pluralism has been a major contribution to make for policy making. Non-acceptance of such plurality while designing policies for JFM has severe consequence as discussed in the case study. There may be several such example like this through out India, where the villages having customary rights over the forest would have forgo the rights because of their distance from the forest to be regenerated through Joint Forest Management.
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Kapilas Reserved Forest Inhabited area belonging to Nagiapasi hamlet Beltikiri Village Busy Forest and Fallow Land
Nagiapasi Village
