Saturday, October 5, 2013

Customary rights and the environment in India

The latest issue of History Workshop Journal has Vinita Damodaran's latest entry into the debates over colonialism and the environment, "Indigenous Agency: Customary Rights and Tribal Protection in Eastern India, 1830–1930". Though the abstract (after the jump) makes it sound like the article deals extensively with post-independence India, in reality it focuses on the colonial period (as indicated by the title), crediting the British with making some genuine efforts to recognize customary property rights of indigenous peoples. Damodaran explains the stakes:
Pareshnath Hill (source: Wikipedia)
The current revisionist position in history and anthropology has focused on dismantling terms such as ‘tribe’, ‘forest’ and ‘indigenous’, used extensively in the past, and this has had a significant negative impact. As notions of ‘indigeneity’ and ‘customary rights’ come under revisionist attack the marginalization and proletarianization of forest-based communities and their traditional livelihoods gain pace all over the world. Recently however there has been a reassessment of the significance of customary law among tribal communities, in terms of access to resources and also of how people use it to claim citizenship. Parallels can be drawn between areas as far afield as England, Australia and Indonesia. As E. P. Thompson noted, in eighteenth-century Britain ‘custom’ was invoked to legitimate almost any usage, practice or demanded right. In a new collection, edited by Nandini Sundar and including work by sociologists, anthropologists and lawyers, the idea of custom as enshrined in colonial law makes a comeback. It is noted that while Indian courts are currently far from the judicial revolution heralded in Australia by the landmark Mabo judgement of 1992, they nevertheless recognize custom provided it is established as such by clear and unambiguous evidence. Whilst rightly challenging the static understandings of custom, Sundar points out that ‘custom deserves serious reconsideration as a discursive product of engagement between local communities and forging visions of the future in the name of the past and the spaces the state allows for pockets of exceptionalism’. It has also been argued recently that customary law may help to overcome the so-called ‘tragedy of the commons’ – the theory that open access to common property may lead to over-exploitation by self-interested individuals. Customary law systems in contrast are mostly concerned with (limited) common rather than public property. Historically grounded understandings of the conflict over customary rights and understanding customary law in the colonial context thus become crucially important.

The abstract:
This paper argues for a reassessment of colonial discourses relating to the tribes of Eastern India. In the context of the serious tribal rebellions of the nineteenth century, colonial administrators put into place forms of governance that took into account indigenous land use practices and forms of authority, thus creating legal protection for the tribes. Whilst these reforms were not sweeping or far reaching enough they did put a brake on the wholesale exploitation of these marginalized communities under colonialism. The measures were carried on into the post-colonial period under the powers conferred in 1950 by Schedule 5 of the Indian constitution, whose origins can be traced to the colonial discourses of tribal protection which I delineate here. Since independence and more recently, Eastern India has become subject to new kinds of both internal and external economic colonization, far more traumatic in impact than colonization before 1947. It may well be that current trends in globalization are creating a new post-colonial imperialism even less accountable than its predecessor: one characterized by ecological inequity, growing environmental injustice, human-rights abuses and a consequent rising tide surge of state violence and counter-violence.

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