TRADITIONS RELATING TO BIODIVERSITY IN INDIA: LEGAL AND POLICY IMPLICATIONS

Summary draft for comments

BIODIVERSITY TRADITIONS AND INDIAN LAW:

CAN THE TWO CO-EXIST?

Ashish Kothari

Kalpavriksh, 5 Shree Dutta Krupa, 908 Deccan Gymkhana, Pune 411004

"…the Legislature of a State shall not make any law under (Part IX) of the Constitution, which is inconsistent with any of the following features, namely: ---

(a) a State legislation on the Panchayats that may be made shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources;….

(d) every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution."

Provisions of the Panchayats (Extension to the Scheduled Areas) Act 1996.

"Article 8. Each contracting party shall, as far as possible and as appropriate:

(j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations, and practices…

…Article 10. Each contracting party shall, as far as possible and as appropriate:

(c) Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements."

U.N. Convention on Biological Diversity, Articles 8 and 10

Introduction: India's Biodiversity Traditions

India's long tradition of conservation has been oft celebrated in literature. This tradition has existed at both elite level as also the level of 'ordinary' people: rulers as far back as Ashok dictated that certain habitats and species were to be left alone, while rural communities of both tribal and non-tribal kind often kept forests or tanks or grasslands as sacred spaces, or protected certain species as totems or religious symbols. The use of biological resources (including hunting) was also often regulated by elaborate rules and guidelines. Equally important, communities maintained a large amount of agricultural diversity, both within and between species of crops and livestock, as also in the kind of agro-ecosystems they developed. Indeed, they did not often strictly demarcate between 'wild' and 'domesticated' biodiversity, a distinction which is probably more modern than traditional. Forests, fields, grazing lands, waterbodies, and settlements merged into one other into a continuum rather than as mutually exclusive land/water uses.

Traditions of biological resource use are explicable within certain cultural and socio-political contexts, which are important to understand for our discussion (for greater elaboration, see Kothari and Das, in press). Firstly, there are belief systems: either localised folk or tribal religions (e.g. animism) and/or widespread 'classical' religions. These belief systems guided the way in which people were to relate to the entities around them, including living beings and land/waterscapes. Sacred forests, for instance, were protected or used according to religious precepts held by the community. Secondly, there are socio-political-economic systems, including the mode of resource use, the kinds of management regimes for resources, relations of property and custodianship, patterns of leadership, and so on. Third, there are knowledge systems (as distinct from belief systems) which also guided human relations with surrounding entities: either informal and site-specific knowledge such as that held by tribal communities, and/or formalised systems such as Ayurveda and other traditional sciences.

Though not much formal research has been done on this subject, it is obvious from available work and from the experience of grassroot level workers, that traditions of resource use have sustained biodiversity over a considerable part of India. Sacred forests and tanks still dot several parts of the country, species like the Langur and the Nilgai and several Ficus species survive in areas with the most intense human uses, and an astonishing diversity of crops and livestock continue to be used by agricultural and pastoral communities. This is not to assert that all traditions and all rural communities have been conservation-oriented; indeed there is also considerable evidence of over-exploitation of habitats and species by communities in the past. But this in no way takes away from the merit of the conservation-related traditions.

However, it is also clear that these traditions are everywhere under attack and are rapidly eroding. Factors such as take-over of resources by the state, replacement of traditional institutions of resource management by governmental institutions, an increasingly negative balance between resources and human/livestock population, changing lifestyles influenced by modernisation, agricultural intensification, and others, have all contributed to this erosion. Newer generations within rural communities are no longer as enamoured of conservation traditions as their parents and grandparents may have been. Drawn into larger economic and political contexts, pushed or pulled into short-term considerations, communities are no longer able to, or often even willing to, conserve the resources around them.

There are, however, strong signs of hope that this erosion is reversible. In many parts of India communities are reviving, or evolving new, practices of conservation. Several of these examples have been initiated by communities themselves, often in the face of increasing resource scarcity. Others are examples of initiation by sensitive government officials, or NGOs, or even by a single individual from outside the community. No comprehensive estimates are available for this grassroots conservation movement, but indications are that several hundred thousand (perhaps several million?) hectares of land and water are probably back under protection and sustainable use; this includes forest regeneration and protection, biologically diverse organic farming, agroforestry, small-scale fisheries and aquaculture, and other forms of land/water use and conservation.

What characterises many of these renewed attempts at conservation is the revival of traditional institutions and rules, or the formation of new ones to meet new challenges. Undoubtedly, customary laws are once again coming into their own in such places.

But do they stand a chance in the context of a still highly centralised administrative and legal system, and an increasingly globalised economy?

Customary Law in Biodiversity Traditions

Long usage of resources gives to a community a customary right over these resources. There is no fixed definition of how long the usage should be; Krishnan (1998) notes that Indian courts have often upheld a customary right on the basis of proof that the usage has been undertaken long enough and with such invariability that it has been commonly accepted as the prevailing usage in that area. In a case in Madras, the right to put stakenets across a river was upheld as a customary right on proof of thirty years use.

The rules relating to such customary use could be collectively called customary law. Krishnan notes that Article 13 of the Indian Constitution treats customary law along with other branches of civil law; there is also a provision by which such law can be taken note of judicially under Section 57 of the Indian Evidence Act of 1872. It is interesting that colonial rulers often attempted to incorporate customary laws into the judicial system they imposed on India, but, as Krishnan points out, these concessions were usually restricted to elements of religious ceremonies or hereditary offices. What is critical is that customary law relating to natural resources, which must have been widespread in rural India during the colonial era (as before), was almost never considered important enough to uphold or integrate into formal law.

The last century or so has therefore seen a much more marked attack by formal law and policy on customary law than has probably been the case ever before. The widespread governmental takeover of forest lands, or of waterbodies, by the colonial rulers, took place without much acknowledgment of the fact that communities may have had elaborate customary rules regulating their use. Those few officers (e.g. to some extent Brandis, India's first Inspector General of Forests), who pointed to the need for more sensitive policies were more often than not brushed aside. Laws relating to the control and use of natural resources, such as the Indian Forest Act, the Land Acquisition Act, and others, completely ignored the existence of customary law. A vicious cycle operated here: unable to comprehend or unwilling to accept the new judicial systems imposed by the colonial rulers, communities did not legally challenge governmental take-over, thereby further strengthening the 'legitimacy' of the new system.

Tragically, this trend of centralised legal and policy systems ignoring and dominating or displacing customary practices and laws has continued after Independence too. Symptomatic of this is the Wild Life (Protection) Act. Promulgated with all good intentions, and implemented to good effect in the case of many natural ecosystems and species, this Act too unfortunately ignored the widespread folk traditions of conservation and placed no faith at all in the ability of communities to achieve conservation through their own customs.

Though by no means the sole cause, the centralisation of legal systems has contributed very substantially to the decline of customary law in India. Offenders were no longer bound by the latter, community leaders who could dispense justice were often left without any legitimacy, and resources previously under community controls were slipping into governmental hands or into a free-for-all situation. Ramnath (1995) records from the Kanger Ghati National Park that a highly regulated and ecologically sensitive system of fishing by the local tribals (in which streams were temporarily ---for a few hours--- dammed and plant-derived poisons used to stun fish), was converted into a haphazard, destructive one (in which pesticides were used by tribals who were in a hurry to catch fish and get out before a forest official caught them), when the rules of the national park stipulated that no fishing was to be done. There are probably thousands of cases such as this. (Of course, market forces, population increase, and other factors mentioned above have also converted relatively sustainable uses into destructive ones; from the same area Ramnath records that traditional rules relating to wild mango harvesting were thrown to the winds when the industrial demand for raw mango increased substantially).

On the other hand, the increasingly widespread examples of community participation in conservation mentioned above, also include interesting and compelling cases of the revival of traditional or evolution of new community rules and regulations. In Kailadevi Sanctuary, Rajasthan, villagers residing inside have demarcated forest areas that they are protecting through the promulgation of rules which stipulate the use or prohibition of cutting implements, grazing, fuelwood collection, etc (Das 1997). Violators are punished with monetary fines or social boycott; interestingly, in what is probably a recent innovation, the fines are determined on the basis of the ability of the offender to pay. Institutional structures such as Van Suraksha Samitis (Forest Protection Committees) monitor the implementation of the rules, and settle disputes; there are even inter-village level committees to settle disputes between villages. This is not an isolated example; there are perhaps several hundred areas in the country where such rules, made either exclusively by communities or evolved jointly with government agencies (e.g. in Joint Forest Management areas) are in operation. In the Mendha-Lekha village of Madhya Pradesh, the village has declared 'self-rule', made an elaborate set of rules regarding resource use, and requires that all government officials who come to implement schemes make a presentation to the Gram Sabha and seek its prior permission (Pathak 1998). In a couple of cases involving the Nishi tribe in Lower Subansiri district of Arunachal Pradesh, Pant (1996) records that traditional dispute resolution institutions have been prepared to adapt to changing circumstances: in one case of over-extraction of cane from the community forest, it was decided that cane can only be extracted for personal use and not for sale; in the other case, when a person was found engaging in monocropping of mustard in a deforested area, it was decided that no monocropping would be allowed as it was harmful for the forest. Pant notes that both decisions had a lot in common with formal law, in this case the Wild Life (Protection) Act and the Forest (Conservation) Act, respectively.

The origin of current community rules can be diverse, but villagers most often cite traditional rules which have either continued, or which have been remembered and used in the evolution of new rules. Adherence to such rules is of course not universal and strict, but it appears that they may often be more effective than those imposed by the state. In any case, dispute resolution at formal state levels (e.g. in a court of law) can be messy, can take inordinate amounts of time, and can be unfair to one or more parties concerned; Pant (1996) records cases in Arunachal Pradesh which the courts could not even resolve, and had to be settled by customary processes.

What is remarkable is that even in communities where customary laws have completely broken down, there is a willingness to revive them or build new ones. In Dalma Sanctuary, Bihar, the traditional mass hunt that Santhal tribals carry out has degenerated into a free-for-all, where customary rules of not hunting pregnant animals, not using fire-arms, etc. have been dispensed with especially by tribal youths who are no longer under the influence of elders (Christopher 1997). In discussions with tribal leaders, we have seen serious concern being expressed about this breakdown in customary law, and the willingness to reimpose it, even the grudging willingess to accept new regulations due to the fact that wildlife populations have seriously declined. This is not yet a success story; much follow-up will need to be done by NGOs and the Forest Department if this willingness is to be translated into practice, but at least there is psychological ground for it to happen.

Constraints in the Revival of Customary Law

Recognition of the impacts of ecological destruction, regeneration of community controls and management in many parts of India, realisation amongst government functionaries that community participation in conservation is essential and just, and other such factors augur well for a renewed importance being given to customary law. However, there are significant constraints and challenges which will have to be overcome:

1. With the exception of 'remote' areas left alone by modernity and development, and areas where communities have steadfastly held on to or revived community controls, customary laws continue to weaken all over India. In some areas, the current generation may even not remember the existence of such laws in their own past; in others, only a few elders may still recall them.

2. Political and administrative institutional controls still remain essentially centralised, despite recent constitutional and legal changes (see below, Opportunities), and for the most part do not accept the legitimacy of local community management of common property natural resources. Even the much-acclaimed Joint Forest Management scheme, for all its positive aspects, has been criticised as remaining essentially government-dominated, and its prescriptions for institutional structures and rules continue to ignore the diversity of traditional arrangements and rules.

3. The dominant development paradigm, including the recent economic liberalisation, has favoured increasing transfer of resources away from community controls to the government or to private corporations and influential individuals. Customary law cannot function in such circumstances, as state agencies, private corporations and most such individuals are not bound by them.

4. Laws and policies remain highly centralised, favouring a uniform approach rather than one which allows flexibility and site-specific innovations. The Forest Act, the Forest (Conservation) Act, the Wild Life (Protection) Act, and other legislation which pertains to the conservation and management of natural resources, do not allow virtually any space to local communities to use their own customary laws.

5. Knowledge and appreciation of customary laws relating to natural resources, in the country's executive and the judiciary, remains weak. Critical appraisals of the recent Constitutional amendments which purport to decentralise controls, point out that in the absence of adequate knowledge, appreciation, and respect of customary law, state governments will continue to wield enormous clout over community matters (e.g. see Roy-Burman 1997).

6. Customary laws relating to natural resources are often tied to structures of inequality and oppression, within and between villages; it is not always easy to separate the conservation related aspects from such structures, and NGOs are often open to the charge of supporting traditional inequalities in their support for traditional resource conservation practices.

Opportunities for Revival of Customary Law

For every one of the above constraints, however, there are also emerging opportunities for resolution:

1. As mentioned above, communities in many places are regaining communal control over natural resources, with the revival or development of rules and codes of conduct. These need to be better understood, and their lessons spread for other areas to learn from. Action or participatory research is indeed being done in a number of areas, to enable such understanding and spread.

2. The above also entails the empowerment of the communities, often to the extent that government officials need to take permission before even entering their settlements or commencing any programmes there. Such de facto decentralisation of authority is taking place in several parts of India, e.g. in tribal areas of central India where 'self-rule' has been pronounced.

3. People's resistance to the takeover of common property resources by the state, or by corporations and influential individuals (including from their midst) is also increasing, as witnessed by the widespread protest of traditional fisherfolk against the introduction of trawlers in coastal waters, the protest of coastal farmers against the entry of industrial-level aquaculture, the resistance to land acquisition for several developmental and industrial projects, etc. This resistance is often accompanied by the strengthening or evolution of community-level rules and codes of conduct.

4. Serious challenges have been made against the centralised and uniform character of natural resource related laws and policies, resulting in either greater de facto space for customary law, or changes in the legal system itself. A people's forest bill is being considered as an alternative to the existing Forest Act, bills for people's rights over biodiversity and intellectual property have been advocated, and so on. The Forest Policy of 1988 brought in the necessity of involving people and respecting customary rights much more than was the case earlier. A draft revised Wild Life (Protection) Act has added a category of protected area called Community Reserves, in which communities will get legal empowerment to protect ecosystems and species (though it is not clear whether customary law will be allowed full play in such cases). Perhaps the most progressive are the 73^rd and 74^th Constitutional Amendments, under which panchayats and municipalities, respectively, have been given greater powers for administration and management. The Panchayats (Extension to Scheduled Areas) Act of 1996, quoted at the top of this article, is perhaps the most explicit statement of intent to allow tribal areas to be governed more by customary laws than by state diktat (though critics like Roy-Burman (1997) have pointed out that in its current formulation, the Act still leaves considerable leeway to state governments to dominate village affairs). Some states, such as Arunachal Pradesh, have also attempted to recognise customary law in formal ways; it is currently considering the Protection of Customary Laws and Social Practices Bill 1994 (Pant 1996).

5. Documentation and codification of customary law is taking place in many areas, though there are doubts about whether this will necessarily prove beneficial to communities. At least, however, researchers and activists are showing to the outside world that customary law can, and in favourable conditions, does work towards conservation and sustainable use of natural resources.

6. Communities are increasingly tackling traditional inequities of caste, class, gender, etc., and building in more equitable facets into customary law. For instance, more and more communities are accepting the necessity of including women in decision-making powers, though this acceptance is perhaps still very grudging. Several Forest Protection Committees have explicitly held that representatives of all castes/ethnic groups should be included in the decision-making process. Such impulses towards greater equity have come both from within communities, as also from stimuli provided by NGOs and government agencies.

All the above, and other circumstances, provide real opportunities for the acceptance, improvement, and revival of customary laws as a part of the framework of managing natural resources, including biodiversity.

The impulses for this trend are also coming from, or being reinforced by, international forces. Perhaps the most significant of these in recent times is the Convention on Biological Diversity (CBD), signed by most countries of the world and now a legally binding treaty. As the quoted portion at the top of this article shows, the CBD places significant emphasis on community practices and knowledge, and provides ground for further development of regimes which would legitimise and empower customary law relating to biodiversity. Indeed, recent debates within the CBD process and elsewhere have also increasingly focused on the need for the recognition of not just customary rights to biological resources, but also to community and individual knowledge relating to these resources. This knowledge along with the resources has been utilised by industrial countries and elites in the 'developing' countries, without due acknowledgment and returns to its original holders. A move towards establishing what has variably been called traditional resource rights (Posey 1996), community intellectual rights (Nijar 1996; Shiva et.al. 1994), or other names, is gaining ground, and can be seen as another step in the direction of firmly establishing customary law and rights.

References

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