Should individual citizens own India's land, water, pastures and forests?

In April 2014, a large number of international organisations sent an open letter seeking that the “Right to Land and Property” be included as one of the new United Nations Millennium Development Goals (MDG). In this open letter, there is a clear emphasis on securing property rights to all individuals, both women and men. Securing rights to land, forest, and pastures, argues the letter, would reduce poverty and ensure sustainable development.

Letters such as the above emphasise what agencies such as Liberty Institute in India, the World Bank, and others espousing libertarian philosophies have been advocating. They view the grant of individual rights and the creation of property out of land, water, forests, and biodiversity so that transactions or negotiations can be undertaken without the involvement of the state.

Parcelling off land to individual owners would allow for a direct linkage to land markets, doing away with the transaction costs of state intervention for facilitated acquisition and compensations. The above does not take into account the issues of large-scale land grab, land acquisition, and distress sales that are taking place the world over.

Having access to a piece of land to cultivate or derive forest produce from does not ensure a continued secure tenure on the same. Further, it does not also ensure that policies will remain conducive for an individual and/or family to continue to practice agriculture. Small and marginal farmers are finding it increasingly difficult to carry out agriculture due to India’s agricultural policy being driven more toward large-contract farming as well as land consolidation.

What is interesting, however, is that policy processes around land rights worldwide has seen a marriage of radical groups challenging land grab and historical forest injustices with libertarian groups to promote a technical form of stakeholder politics.

While the former seek a right to participate in a context where land continues to be premium commodity, the latter believe that attributing ownership is the conclusive way to rise above poverty or destitution.

Although both these groups use land rights and community tenure interchangeably, there is a fundamental difference between the logics of common land stewardship and the market-based land property regimes. The former is an effort to link community-based access and conservation through local governance. In the latter, land is parcelled into little units that can only be used as bankable assets.

Both corporations and governments alike, who seek to consolidate their land ownership, often push for clearly defined tenurial rights rather than have to deal with messy overlapping custodianships. Many scholars have highlighted the limits of tenurial security in achieving conservation and that a tenure creates willing stakeholders in large-scale land use change.

Those who lament the loss of the common land stewardship in this discourse of land rights include wildlife ecologists/conservationists, for whom fragmented landscapes mean the certain death of some species especially large mammals, the allies of marginalised farm and forest based enterprises, and the practitioners of traditional occupations like fisheries. They fear that property making and the taking over of productive landscapes by industry will turn these places into dead sites without culture, ecology, and enterprise.

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA), came as a success story for the communities and groups that had been locked in struggles with the State over the historical process of reservation and enclosing of forests since colonial times.

The FRA has been a significant yet controversial addition to forest governance laws in India. The legislation recognises and vests both individual and community forest rights and the occupation of forestland in forest-dwelling communities (both tribal and non-tribal). There are different sets of criteria for the eligibility of tribal and non-tribal forest-dwelling communities over forests that they may have used.

For a growing neoliberal state that brings more and more marginal areas under its controversial development map, this new success is not merely the transfer of rights to forests from the Forest Department (FD) to forest dwelling families. It is a much more profound act that allows the transformation of forests from the government property held in trusteeship or the commons to the creation of forest plots as private property. This is especially so when forests are claimed as individual rights, which has been the priority area of focus for villagers and government departments in the process of implementing the law.

In effect, it is truly what Goldman describes as the “tragedy of the commoners”. Migrant users of forests, those without written records or evidence of forest use and those against whom social prejudices exist, have been unable to make claims or are rendered ineligible by this legal process. Following the passing of the legislation, there is a general agreement on its objectives between developmental experts in the World Bank, national governments, and NGOs with revolutionary forest rights groups.

Many of the FRA activists were part of leftist formations that eschewed private property to varying degrees. It would be naive to imagine that nature based markets are or can be freed of the State, or that owning property can ensure rights to decision-making on it. If at all, the State has a much greater role to play in inventorying, standardising, valuing, and certifying commodities. In fact, titles issued under FRA come with the conditions that land use is not to be changed.

There is no purpose in commodifying land into property if it cannot be transacted. The poor forest dweller will remain poor and bound with that piece of land if the title cannot be freed up for transaction. It leaves the title holder in a disadvantaged position with the land becoming commodified and their right over it having no capital premium. Our national laws for land acquisition will continue to ensure what can be sold and cannot and the fact of private property has never stopped this from happening.

With land, forests, or water being compartmentalised into individually owned plots or use rights, the thicket of multiple “commons” claims that the large industrial users of forests had to deal will have been cleared.

Excerpted with permission from Business Interests and the Environmental Crisis, Kanchi Kohli and Manju Menon, SAGE India.