The privileging of claims operates with a filter of those who “deserve” forest rights and those who do not. The bureaucratic perception of OTFD communities is one of opportunists who are using the law to obtain land rights. For instance, in its petition before the Supreme Court challenging the constitutionality of the FRA, Wildlife First identified OTFD as a nebulous category that had been used to claim rights over land by communities that are mostly landless due to the failure of land reforms.
Dalit forest-dwelling communities belong to the category of OTFDs and thus suffer from exclusion from the protective aspects of the Act. As a Dalit forest dweller in Kandhamal described to me in July 2015: “Historically, by virtue of our caste, we have been denied access to land. In forest areas too we are denied rights over land despite laws recognising such claims. The experience of untouchability continues and is at times worse as we must battle exclusion within our communities and by the Forest Department too.”
Discrimination in the forests
Shobha, a Dalit forest dweller, was leading a sit-in in a district collector’s office in July 2015 to protest the Kanhar Dam development in Sonbhadra, which would submerge forest land in the area, when she made time to share her story with me. Contrary to the traditional idea of forested land always being an environment of great beauty and rich biodiversity, the area occupied by Shobha’s family sat at the edge of a main highway surrounded by thermal power plants and perpetually enveloped in dust. The family had been resisting the forceful acquisition of land by the local so-called “land mafia” in order to sell it illegally to the resource-extraction companies. Shobha and her daughter were subject to sexual harassment and other violence by the leader of the land mafia, and twice had been arrested without notice by the local police. Yet her fight for land and the recognition of forest rights continued. When I asked her about the difficulties resulting from her caste identity and with living on forest land, she responded: “The fact that I need to provide evidence of living in these forested stretches for seventy-five years when accessing the paperwork is hard [and means] we are immediately excluded from the law. Add to that the atrocities we face as Dalits by the higher-caste land mafia [and] what use is the FRA or any other law?” The narrative of historical injustice combines caste-based atrocities and an inability to gain access to secure tenure. As the FRA was being drafted, it was not fathomed that it would be necessary to address myriad such injustices, and the law’s failure to secure the rights of Dalit families like Shobha’s has meant they are now even more vulnerable to the actions of the higher-caste land mafias.
In Kandhamal, the experience of untouchability and injustice was different. The Vanvasi Kalyan Ashram, a social welfare organisation that had been active in the area since the early 2000s, had enmeshed legal aid structures on the basis of religious and cultural identity. In a corner area beside a village temple, a few grey plastic chairs and tables had been laid out, at which members of the Ashram were processing applications for IFRs. This legal aid was accessible only to members of the Scheduled Tribe – the local Pano Dalit community was entirely excluded from the process of drafting either individual or community forest rights. A Pano Dalit man and a Christian, whose home was partially wrecked during riots that occurred in the region in 2008, described how caste-based discrimination and legal mechanisms like Scheduled Areas further marginalised their community: “I can speak with you away from the Gram Sabha hearing because I do not feel watched or surveyed. There are just two Dalit families who remain in this village after the riots. This is a Scheduled Area too, which means that the ST [Scheduled Tribe] community and their voices are privileged over ours within the law. The Gram Sabha mainly consists of STs and since they have more secure land rights than us, they are able to make decisions about the village to the exclusion of us and our interests.”
He went on to tell me how the Adivasis would practise untouchability against the Dalits and even prevent them from accessing local temples during festivals. Many attribute the change in the relationship between the Kondh tribal people and the Pano Dalits to the interference of right-wing Hindu organisations which pit the two communities against each other. Walter Fernandes, however, argues that insecurity of land tenure and uneven access to forests preceded the religious violence of 2008. Furthermore, despite their conflicting interests, forest-dwelling communities are working together to stitch up this division of legal design through creative legal interpretation. The Dalit forest-dwelling communities I interviewed shared with me that they were working to find innovative ways to participate in, and expand the protection of, the law.
The struggle for inclusion
The Dalit forest dwellers in Chandauli, Uttar Pradesh found an innovative way to access rights under the FRA. They generated legal evidence by taking direct action in the form of land occupation, documenting it (such as through photographs) and submitting a part of their forest rights application. Mata Dalal told me what this process entailed: “We identify land which we historically occupied, we demarcate the land, and then a violent process of reclaiming land ensues. Women are in the frontline while others [men] start to clear the land by cutting the trees to make the land cultivable to be able to reclaim it.” Dalal belonged to the Communist Party of India, a Marxist organisation that views land reclamation as a strong strategy to regain access to forest land. It is also a risky one: several Dalit forest dwellers were arrested during the Chandauli endeavour and many were beaten by the local police. This approach of generating legal evidence and engaging with the law was a lesson to me with regard to how forest laws could be harnessed to address issues of redistributive justice.
In Dudhi Tehsil, also in Uttar Pradesh, the legal strategy for the inclusion of Dalits was different again. The forest dwellers, including Adivasis, decided to claim CFRs over a vast stretch of land. One person I spoke to, who had been a key strategist for the process, explained: “The law is designed to exclude us but internally we have a sound understanding of how private land is distributed and what portion of the land we have historically conserved. Our plan is to apply for community forest rights and use the self-governance powers that come with it to continue to manage the forest land as we have.”
It was a simple but clever approach that removed the burden from Dalit forest dwellers to overcome the evidentiary barrier. The Dalits in Dudhi Tehsil eventually submitted their application for CFRs and, as at the time of writing, are yet to hear back from the Forest Department, but they are optimistic that this legal strategy will prove effective.
In the forest of Bischemcuttack in Odisha, the struggle for Dalit inclusion in law and society was taking a political turn. Jitu Jakesika was contesting elections as a representative of the Bahujan Samaj Party, an organisation founded on anti-caste values. As we sat by the base of the town’s Ambedkar statue, he told me: “I want to be honest with you, Adivasis are good people, but they still practise untouchability. The Dalits here are worse off as they work in the fields of the Adivasis as farm labour. Dalits sometimes are the link for our communities to the market, too. These are social issues that can only be resolved by bringing social change and change in political values.” Jakesika, along with a team of three others, was laying the seeds for an Ambedkarite movement in these forests, and a political ideology that built on the coalition of Adivasi and Dalit forest dwellers in the area.
These struggles for inclusion under the law, rather than being isolated outside of it, continue, highlighting the layers of political reconciliation needed between these two marginalized communities before the law can step in. The law in many ways hinders the building of these coalitions by creating boundaries that compound exclusion. The struggle for inclusion is an ecological one, too: how much forest land can be used for redistributive justice, and what other solutions might address the dual challenges of conservation and economic inequality?
In considering these problems, I am reminded of my thought-provoking meeting with Abhiram Mallick, a Dalit rights activist in Odisha, in July 2018. I met him in his home office where, on large wooden tables, were piled high the writings of Dr BR Ambedkar, Savitribai Phule and Jotiba Phule, which he was translating into Odia, the Indo-Aryan language local to Odisha. He pulled up a chair to serve as a table, and placed on it a variety of Odisha delicacies on one plate to be shared by the four of us in the room. He described it as his tiny effort to smash the practice of untouchability and inculcate a culture of sharing food from one plate. As we ate, he described the issues of forest rights and environmental justice as being heavily reliant on identity-based rights, rather than seriously examining issues of livelihood and economic justice. Mallick summarised the experience of Dalit exclusion within forest laws, and reinforced the need for inclusion: “Forest rights are rights to livelihood and land. The urban economy excludes us, the rural economy excludes us, and the forest economy is no different. Livelihood, untouchability and economic justice are as much issues of forest laws as conservation. Dalit forest dwellers are part of the forest society fabric, and you cannot erase their concerns in law or politics.”
Anti-caste climate justice and the future of forest law
“Are not all movements to prevent the acquisition of forest land by big capitalists both protecting the environment and preventing caste-based discrimination?” asked Mata Dalal, as we waited for motorcycles to pick us up so we could travel into the forests of Chitrakoot, in the northern Vindhya Range, where there was an active movement to claim forest rights. He went on to explain: “Capitalism in forest areas among other things means land grabs. Anti-caste forest rights movements want to prevent land grabs by recognising the land rights of forest dwellers. This protects the forests and the forest-dwelling people.”
This understanding of the FRA, as a tool to prevent land grabs by corporations, was present throughout the region. To many Dalit forest dwellers, recognition of their land rights was central to an anti-caste interpretation of the Act.
Excerpted with permission from Governing Forests, Arpitha Kodiveri, Melbourne University Press.
