Vocabulary of Commons

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• Book: Vocabulary of commons Foundation for Ecological Security PB No. 29, Anand, Gujarat, INDIA–388001p: +91 (2692) 261239; f: +91 (2692) 262087 e: ed@fes.org.in w: fes.org.in

First edition January 2011

Illustrations K P Sasi.

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w: visualsearch.orgCAPRi

(CGIAR Systemwide Program on Collective Action and Property Rights). 2010.

Cover design Mumtaz Gonsalves, IMAGINE (Ideas & Execution)

Printed at WQ Judge Press, Bangalore, India.

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The views expressed in this document are solely that of the authors and do not necessarily reflect the views of FES.

Initiative on commons

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Vocabulary of commons is a socio-linguistic enquiry into the legal and livelihood consequences the term ‘commons’~a search for a vocabulary that reflects a commons approach to a life with dignity in harmony with Gaia and communitarian aspirations.It is to strengthen community articulation and make their voices heard in the ongoing efforts of dialogue between communities, academics, practitioners and decision makers. It was coordinated by OpenSpace (openSpace.org.in). The Initiative on Commons, currently anchored by FES, aims to bring together practitioners, policy makers and academia, working on various domains of commons—physical commons such as such as forests, grazing resources, protected areas, water,fisheries, coasts, lagoons, irrigation systems as well as ‘new commons’ such as knowledge,digital and cultural commons, genetic resources, patents, climate, etc. It is an evolving platform to advance understanding, research and advocacy on the commons. The initiative ultimately aims to influence public perception, policy environment and programmatic action in favour of the commons.Foundation for Ecological Security (FES)Registered under the Societies Registration Act XXI 1860, the Foundation for Ecological Security was set up in 2001 to reinforce the massive and critical task of ecological restoration in the country. The crux of our efforts lie in locating forests and other natural resources within the prevailing economic, social and ecological dynamics inrural landscapes and in intertwining principles of conservation and local self governance for the protection of the natural surroundings and improvement in the living conditions of the poor. By working on systemic issues that can bring about a multiplier change,we strive for a future where the local communities determine and move towards desirable land-use that is based on principles of conservation and social justice.

Preface

There is now incontrovertible evidence from many studies that most people depend on the commons most of the time — and the smaller the per capita resource base, the greater this reliance. It is also seen that communities who live in marginal lands and whose livelihoods are highly dependent on natural resources are among the most vulnerable to climate change. Many indigenous and traditional communities, pushed to the least fertile and fragile lands as a consequence of historical, social, political and economic exclusion, are amongthose who are at a greater risk. Concern Worldwide works with such marginalised communities in different parts of the globe. For these communities, the commons are their lifeline — the bedrock of their survival and their only dependable security net.For commons to be recognised and acknowledged as a legitimate space is the first step in legitimising the existence, survival and dignity of such communities. Only after acknowledgement can we move towards a better understanding systems as they exist, and strengthen the effort to restore, revive and rejuvenate the commons. With the increasing rush towards privatisation and industrial development, their voices are being drowned out as a prelude to being pushed out and then erased. The lesson of globalisation is that there is no ‘one solution’ much less ‘one size fits all’. It is for this reason that Concern Worldwide believes that all voices must be heard and that the symphony of the commons should not be replaced by groupthink. In partnering with the Foundation for Ecological Security in bring out this volume,we hope that these voices from the commons will be one of many steps to consolidate the uncommon wisdom of the commons. It can then be tested and socialised. It is our hope that this work is a stepping stone in that direction.

• 6. AuthorspeakThis book is the collaborative effort of many… a collective effort in theknowledge commons. When we set out to write the book, a process wasdesigned that would help a collaborative creative effort. The authors met twice.In the first meeting, it was decided that the book would be co–authored, andnot be a collection of papers with a couple of editors. The framework wouldbe agreed upon collectively, and then each author would write chapters onthe area of expertise. Some other authors were also identified, and theframework shared with them, requesting contributions. Some did, though ittook considerable effort to look at our work through the commons lens. Thenthe authors met again, presented the chapters and got comments. Followingthis, the chapters were finalised with the discussions and commentsincorporated. Not all who attended the authors’ meeting could contributechapters, either due to reasons of time or because the effort of looking atthe work through the lens of the commons was simply too much. But allcontributed to the process in various ways from helping to develop theframework to critiquing the chapters.It is a practitioner perspective, of those who work with some of the mostmarginalised and excluded sections of society. As we moved further, werealised the truth of the saying ‘commons need commons’ and the need tothoroughly de–romanticise the commons while affirming that the commonsare the source of life. It became obvious that the ‘commons’ could be asinaccessible as property. The discrimination and exclusion are too stark to wishaway, and too blatant not to be visible but to the most blinkered. So we tooka long hard look at the mechanisms of exclusion… the power which makesit possible—as Alvin Toffler put it in Powershift: the material, muscle and mind—which brought the state, culture and religion firmly in our sights. Since the entiresuperstructure of ideology determined this exclusion, we needed to look atthe knowledge commons, including culture and religion, in its role of socio–economic control. The book therefore has a lot to do with social justice andexclusion, from the perspective of those who are excluded from the commons…for whom the commons were never their commons.The non–physical and the new commons figured prominently in our discussions,since the concept of ‘control over the commons’ is fundamentally changedwith development of new commons. However, there was a clear understandingof the role of power, and power relations, with respect to commons. Forciblevi

• 7. commoning—internal colonisation—is a potent and ever present threat, whetherby ethnic swamping or by slow strangulation or through religion and patrioticnationalism. The objective of both sides—property and commons—is themaximum territory, and is akin to what Sun Tzu warns us of in his classic TheArt of War. It was recognised that the institutions of property—of which thestate, as the only instrument of legal violence, was key—was the greatest threatto the commons. Control of the state by corporations adds a disturbing newdimension to the threat. Addressing state and non–state power is an importantfactor in protecting the commons. Since the state has claimed the sole rightto violence, neither it nor power can be ignored by any serious student orsupporter of the commons. Though commons are the natural order andproperty an exception—even the law restricts copyright and patents to a finitetime—the present institutions of the state are institutions to protect property.Therefore, it is not the ‘capture of the state’ or its present institutions thatis important. These institutions can only protect property. To nurture thecommons, a new kind of institution, social organisation, socialisation andreproduction of knowledge—a different way of life itself—is necessary. Theseare explored in different contexts, in different chapters throughout the book.Each chapter is self–contained. They are ordered so that similar topics aregrouped together, but you can read them in any order, according to your interest.The glossary will guide you through the specific terms used. The list of authorsis given at the end, as also their emails, if you would like to carry on thisconversation to develop a vocabulary of the commons.Come then, let us embark on our journey of discovery….Anungla Aier, Gomathy Balasubramanian, Ritajyoti Bandyopadhyay, SolomonBenjamin, Gita Bharali, Mihir R Bhatt, Anita Cheria, Hrangthan Chhungi, AshokChowdhury, Edwin, Walter Fernandes, Enakshi Ganguly Thukral, VenkateshHariharan, Geeta Lakshmi, Samar Bosu Mullick, C R Neelakandan, RoshniNuggehalli, Melvil Pereira, Prabir Purkayasthsa, M C Raj, Bhuvaneswari Raman,Kavita Ratna, Roma, Nidhi Sadana Sabharwal, Suman Sahai, PrafullaSamantara, Kinjal Sampat, K P Sasi, Mira Shiva, Deepak Srinivasan, VinaySreenivasa, Tom Thomas, Sukhadeo Thorat and Yashoda. vii

• 8. Glossary Term ExplanationADB Asian Development Bank.Adivasi Indigenous and tribal people. Literally ‘first dweller’. Used as a term of political assertion since the government of India maintains that there are no indigenous people in India and that the Schedule Tribe list is only an administrative list from which communities can be taken off or added. This term is not used in the Northeast, where the terms ‘indigenous and tribal people’ or ‘tribal’ are preferred. In this book we have retained the preferences of the authors for each chapter—which leads to the terms being used interchangeably.Anganwadi Government terminology for day care centre for children. The centre is important since government schemes for children, especially health (immunisation) and nutrition are routed through these centres. It is a lifeline for those below poverty line, as most Dalit children are.Azan Islamic call to prayer.Babu Government official (Colloquial).Bada Fruit cultivation area.Bada mahana dangu Graveyard for elders.Bagada Area from which minor forest produced are collected.Balwadi Common term for anganwadi.Baru When soru panga is used as a village.Basa Place of shelter, social gathering or festival.BBMP Bruhat Bengaluru Mahanagara Palike (Greater Bengaluru Metropolitan Council)Bengaluru Formerly Bangalore.BOD Biological Oxygen Demand, a measure for water purity.CBD Convention on Biodiversity.Chennai Formerly Madras.Chuana Bank of river where from water is used. viii

• 9. Glossary Term ExplanationCOD Chemical Oxygen Demand, a measure for water purity.Common school One school system from village to nation in primarysystem and high school education without any discrimination. It should be free from private management and commercialisation of education.CPI Communist Party of India.CPI(M) Communist Party of India (Marxist).CPR Common Pool Resources (In popular Indian usage commonly Common Property Resources).Crore 10 million.CRZ Coastal Regulation Zone.CZM Coastal Zone Management.Dalit Former ‘untouchables’ outside the Hindu caste system. The government has classified some of them as Scheduled Castes. Dalit means ‘broken’ or ‘oppressed’ and is a term of assertion.Dangar Land used for millet cultivation.Dharani penu Earth god.DPT The Doctrine of Public Trust. It is a legal principle which asserts that certain natural resources are of such immense value to society as a whole then it is unjustifiable to assign those natural resources to any individual as property.Elu basa Individual house.Elu gunjare Village with humans, animals, kitchen gardens, livestock shelter.Eyu penu/Gangi penu Water deity.FAO Food and Agriculture Organisation of the UN.FRA Forest Rights Act, the common usage for The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.GATS General Agreement on Trade and Services.GoI Government of India. ix

• 10. Glossary Term ExplanationGram sabha Village assembly. Decision making authority consisting of all adult members of the village recognised by the Indian constitution and the Forest Rights Act.Hata Village fair and market.IFA Indian Forest Act.IMF International Monetary Fund.INGO International Non Government Organisation.IPC Indian Penal Code.IPR Intellectual Property Rights.IT Information Technology.ITPGR International Treaty on Plant Genetic Resources.KSMTF Kerala Swatantra Matsya Thozhilali Federation, the Kerala independent fish workers federation.Kolkatta Formerly Calcutta.Lakh 100,000.Mandiarani parba A festival.MDG The United Nations Millennium Development Goals.Melia parba A festival.MFP Minor Forest Produce. The preferred term is NTFP, though the forest department keeps to this term. The terminology MFP hides the fact that these ‘minor’ products are substantial sources of patronage and income. In popular usage these two terms are used interchangeably.Mila mahana dangu Graveyard for children.MLA Member of Legislative Assembly.MNC Multinational Corporation.MoEF Ministry of Environment and Forests.Mumbai Formerly BombayMunda,kata,bandha Traditional water preservation and irrigation method of tribals. x

• 11. Glossary Term ExplanationNaxalite Extremist or Maoist in popular usage. They are a banned radical far Left Maoist Communist group in India. The name comes from the village of Naxalbari in the Indian state of West Bengal where the movement originated.Naju basa Village with humans, animals, kitchen gardens, livestock shelter.Nella When soru seed is used for cultivation.NFF National Fish Workers’ Forum.NGO Non Government Organisation.Niyam raja God of law.NTFP Non Timber Forest Produce. More precise, but used interchangeably with MFP in common parlance.Odisha Eastern state of India, formerly Orissa.Pano One of the scheduled caste communities.PDS Public distribution system for sale of food grains and groceries through fair price shops commonly called ration shops.Penu Good.PESA Panchayats (Extension to the Scheduled Areas) Act 1996.Pourakarmikas Persons who clean roads, sewage pipes and storm water drains and collect garbage.Sabha Assembly.Safaikarmacharis People who clean human waste (night soil in dry toilets). Manual scavengers.Salwa judum Literally ‘purification hunt’, a militia armed by the Government of Chhatisgarh ostensibly to fight the Maoists, but in reality committed atrocities on the tribals and therefore ordered to be disbanded by the Supreme Court.Santhe Market (Kannada).SC Scheduled Castes. It is an administrative classification of the Government of India. (see also Dalit). xi

   * 12. Glossary Term ExplanationSEZ Special Economic Zone.Shifting cultivation Tribals shift their cultivation to different places from time to time.Sixth Schedule The Sixth Schedule of the Indian Constitution provides for the creation of Autonomous District Councils (ADCs) in certain tribal areas of Northeast India. The ADCs have power to make laws over land, forest, water, agriculture, education, health and social issues. The primary purpose of the sixth schedule is to incorporate the predominantly tribal populations, as communities, into the Indian State. For further information on the Sixth Schedule refer: B. L. Hansaria. The Sixth Schedule to the Constitution of India. A Study. Gauhati: Ashok Publishers.Soru jaka Hill top.Soru need Lower hill slope.Soru panga Land at hill base.Soru tude Middle of the hill slope.ST Scheduled Tribes, the indigenous communities. ST is an administrative classification of the Government of India. (see also Adivasi).Tedibasa Place to sit and have conversations.Thiruvananthapuram Formerly Trivandrum, Capital of Kerala in South India.TRIPS Trade Related Intellectual Property Rights.WTO World Trade Organisation.Yama God of death.Yamaloka Literally Yama’s world, but ‘hell’ in normal usage. xii
   * 13. Towards a vocabulary of commons Anita Cheria and EdwinT here is a world of difference between the commons and common property. The blurring of this distinction, sometimes inadvertent but oftentimes deliberate, has led to many avoidable conflicts, thedisplacement and alienation of the commoner from the commons and theloss of the commons itself. There is an intimate linkage between languageused to describe the commons and the perception and use of commons—how ‘the commons’ have been translated from practice to restrictive usage.The words used to describe often become the gateway to perception.Language is a good indicator of how we think, and how we define thephysical, and psychosocial universe around us. Language not only expresseswhat we think, but to a large degree shapes our perceptions, self–perceptionand constructing how we think because languages are knowledge systems,not merely a collection of words.Words reveal the nature of society, social relations and even offersclues to their physical environment. Languages of peoples in tropicallands seldom have words for snow, but the Eskimo have more thana dozen words for it. Similarly, warlike peoples, feudal societies haveno words for democracy and consensual decision making or polity.Words and concepts such as ‘eminent domain’ and ‘terra nullius’ arecarryovers from a feudal era.There is a popular misconception that language determines thought,and we cannot go beyond the limits of language. The fallacious viewis largely based on the work of Benjamin Lee Whoft. Though languageinfluences how we think, it is not deterministic. Peoples do go beyondthe limitations of language in countless ways—using old words creativelyor by creating new words. Human beings can go beyond the limitsof a particular language and draw on ideas embedded in other languages,sometimes by importing the words from another language. A personfrom a tropical land, with a mother tongue that does not have a wordfor snow, can know what snow is. 1
   * 14. However, language does direct what we must think of when we useit and the richness of our perceptions. 1 Languages force us to thinkin ways depending on the information that must be conveyed and thereforewhat must be specified.2 It is the linguistic equivalent of the managementconcept ‘what gets measured gets done’. While ‘you’ can be usedindiscriminately in English, many languages have specific forms formale and female and a ‘respectful’ and non–respectful (which is oftenalso the endearing) form. The use of age and sex encoded languageswould instantaneously result in the recognition of the sex and ageof the person. Though ‘hen’ and ‘chick’ refer to the same species,they embed age forcing the user to factor age into thought whenformulating the idea into language and in selection of vocabulary. Similarly,both ‘girl’ and ‘woman’ embed age and sex, while ‘lady’ embeds socialstatus in addition to age and sex, and ‘Queen’ also embeds a formalgovernance position. The same would hold good for boy, man, lordand King. The individual addressed by an honorific (Your Royal Highness)is more likely to feel respected than one addressed by a demeaningone (hey you). Used continuously, these descriptors are internalisedas self worth and self image.A quirk of language is that it is egocentric, privileging the powerfuland demonising the weak. Since most of the language we use todayhas come from the city, the city privileges itself. So those who livedin the cities are called ‘citizens’ and the serfs from the village werecalled ‘villein’ becoming the modern ‘villain’. Being egocentric, languagesare anthropocentric, often racist, sexist and ageist. This results inprivileging human beings over animals, male over female and age overyouth. It is insulting for a human to be compared to an animal, a manto a woman and so on. Directions are given as ‘left’, ‘front’ and ‘back’.But language does not have to be egocentric or even anthropocentric.There are ‘primitive’ languages such as the indigenous Australian KuukThaayorre, that are geocentric and use the cardinal directions. 3The powerful privilege their language over others. The Romans, whoconsidered themselves civilised, made the people they conquered asslaves (Latin verna, native slave), and called the language of theirslaves as vernaculus from which we get ‘vernacular’. Though presently2
   * 15. understood as ‘local’ or ‘native’, vernacular literally means languageof the slave. Their language, which they considered superior and ‘scientific’,was Latin. The privileging in language is often an accurate reflectionof privileging in society. Just as citizen and villain in the rural urbanprivileging, the privileged Ahura of Iran becomes the vile Asura inSanskrit. Contrariwise, the privileged Deva of Sanskrit becomes thereviled Daeva in Iran. The present privileging of languages and peopleis not so blatant, but still has gradation in terms of ‘national’ and ‘official’language, and ‘dialects’—leading to the saying ‘language is a dialectwith an army’. The languages of the less powerful have been pushedout of the commons and, along with them, have disappeared fromthe face of the earth. 90% of the 6000 languages are slated to disappearby the end of this century.It also operates in more subtle ways. When words from languagesof equals are used, they are used with the same pronunciation. Wordsof languages of weaker people’s are not so respected. The Britishhave no problem pronouncing ‘rendezvous’ or Karl Marx but wouldchange Catumaram to Catamaran and Sultaan to Sul–ten. This is differentfrom the process where Alexander becomes Sikander, Abraham becomesIbrahim and Solomon becomes Suleiman, but similar to Constantinoplebecoming Istanbul.The privileged claim the right to name the other. Once the right toname is established, it rapidly scales up to the right to regulate andto own. In patriarchies, the woman takes the name of the male—either as father or husband—even where not patrilocal. Oftentimesshe takes the name of both the husband and the husbands family.The colonial peoples always named the colonised and when the colonisedgot independence, there were a spate of renaming of countries fromZimbabwe to Myanmar to Sri Lanka. Indigenous and tribal peopleacross the world are displaced from their homelands by terming themas reserve forests, national parks, protected areas and carbon sinks.This is deliberate distortion and a continuum of terra nullius, an extremeform of egocentric language.If the language of a society embeds space with life, with animals,plants and the inanimate, then ‘development’ in the language of that 3
   * 16. society would not cut through the migration paths of animals or fencetheir waterholes. Unfortunately, the dominant paradigm privileges industryand capital.The dominant paradigmThe industrial revolution gave rise to capitalism and democracy. Thejurisprudence that developed at the time gave rise to its own vocabularywith industrial relations as the normative. The vocabulary of individualprivate property and individual rights developed co–terminus with science,industrialisation, capitalism and democracy. In a rather frank statementof its objectives, industry tells us that ‘development’ is to ‘exploit’natural resources. Efficiency is to do it in the fastest time possible.The language of commons is to protect natural resources. Efficiencyis to minimise the resource use footprint. Greenfield is very differentfrom green field—spaces make a lot of difference in language too!The present vocabulary developed as a vocabulary of private propertysince commons was the norm and implicit. Property was a subsetof the commons. The King owned all else. (It is from the ‘royal’ or‘regal’ estates that we have the term ‘real’ estate.) At the time ‘wastes’meant any uninhabited land, and what are private fields today werecalled ‘closes’. There needed to be terms to distinguish property fromthe commons, since property was a subset of the commons. Unfortunately,the language of property has become so dominant that there is a rolereversal, and in extreme cases there is even denial of commons dueto absence of explicit definition or description. Land that did not producetax was termed revenue wasteland. This shortened to become ‘wasteland’and then alienated to the private industry—i.e. made into property—could be taxed and made ‘productive’. However, production for themanor is very different from production for the community. The latteris for consumption and the former for export. Earlier, ‘waste’ waswhere humans did not live which, though an anthropocentric definition,did not consider it empty and certainly not a vacuum.The dominant usage in modern languages is steeped in property. Itis property—whether industrial or capital—that is taken as the normative.In law, defence of property is normative. The word ‘development’4
   * 17. in modern usage implicitly refers to industrial development. In moretraditional languages, development always means human development—of the individual and the community. In English however, humandevelopment must be specified. Similar usage is seen in such termsas ‘growth’, ‘profit’, ‘structural adjustment’ and ‘reforms’. While TheReformation was to de–institutionalise the church and make it morepeople centric, the present day ‘reforms’ are to make polity and societyitself more market centric and therefore would more accurately betermed deform and deformation of society.The industrial frameworkThe industrial framework requires precision, and precise borders. Thenatural world has few boundaries that follow the lines on the map.Boundaries are fluid, flow and merge into one another. Conflict ariseswhen they are made into the mechanical ‘on–off’ so beloved of theindustrial society. There needs to be space without boundaries forpeace, both for the physical and non–physical commons. The languageof the present is the language determined by industrial society—oneof precision and private property. It lacks the nuances that cushionthe journey of life. It requires minimum tolerance, high fidelity, totalquality management (TQM) and zero defects.So we bring in these terms into human life. Instead of technologysupporting life, life adjusts to support technology. Terms used to describetechnology determine how life should be lived. Work is done in shiftsto support the machines. From being masters of the tools (Ivan Illichuses the term ‘Conviviality’) we become slaves to machines. ‘Precision’in machines becomes imposed precision in natural phenomenon andthe descriptive rules become deterministic law. The distinction betweenrule and law is erased leading to avoidable confusion.The consequence of the industrial framework is the necessity of industrialintervention as a prerequisite for a life pattern to be recognised, valueto be assigned and to disregard the active commons. Air is consideredempty and lifeless—so smoke can be let into it, no matter the beesand pollination that are vital for forests and agriculture apart fromthe insignificant detail of humans needing fresh air to breathe. The 5
   * 18. rivers and seas are empty so pour all the sewage and toxic wasteinto them. Language is so influenced by the industrial paradigm thatnature is considered empty until mechanical procedures are appliedto it. Value comes only from such addition, and soon value is mistakenfor price. Since the tools are to measure industrial production, all elseis termed empty. Where there is no industrial intervention, it wasconsidered terra nullius. It extended even to considering ‘the natives’minds as empty and bereft of culture—terra nullius of the mindscape—if there was no industrial production. As Eric Fromm put it in ‘ToBe or To Have,’ Industrial society has contempt for nature—as well as for all things that are not machine made and for all people who are not machine makers.Instead the commons were considered ‘passive’ and the knowledgeregarding them ‘unscientific’ because it is not encoded in the idiomaccepted by science. This ‘recognition of life’ and the active roleof the commons in production and sustenance of life is important since,without it, the resource base is considered terra nullius and can beoccupied by the dominant at will.The legal concept of terra nullius is reproduced in popular perception.There is no more ‘space’ for commons and the remotest places arevulnerable precisely due to their remoteness—first for adventure tourism,then eco–tourism and then exploit. The absence of industrial actionon nature causes the perception of a property vacuum, and thereforethe perception that all ‘unfenced’ commons are just waiting to be invadedand taken over. Nature abhors a vacuum. The portrayal of the commonsas empty is one of the most insidious threats to its survival. Ideasof the ‘fullness of the commons’ are dismissed as romanticism despiteseveral studies and documented evidence. Even cooperatives withoutformalisation are thought to be, and treated as, non–existent. The dominantculture cannot perceive, and what is not perceived is considered absent.Branding non–polluting communities as uncivilised and barbaric is oneconsequence of the industrial framework. In its equally debilitatingpre–industrial avatar, it led to the word for ‘the other’ and ‘the enemy’being one. All instruments of power are then used to ensure banishmentfrom the commons.6
   * 19. The Gypsy Timeshare The nomadic communities use the same plot of land at regular intervals. These intervals could range from a year to a decade or more. They have a well–developed sense of territorial rights and occupy the same area, only not continuously. Sometimes the period of return is a decade or so, though old timers know the periodicity, and the locations. They do not mind if others use the land when they are not around, but assert their right to it at specific periods. This, if one is unbiased, is the original ‘timeshare’. However, the dominant invaded this territory declaring it to be terra nullius and established their sole dominion over it, debarring access to the nomads and declaring them encroachers and trespassers in the bargain—when in reality it is the dominant who are the squatters and illegal occupiers of the space. The picture changes the moment there is industrial intervention. Then it is called ‘timeshare’ and is protected by property laws. The law and popular consciousness still refuse to accept that the nomads discovered and practice timeshare. It shows, at a deeper level, how the slow strangulation process has worked to totally marginalise the community. With a little bit of imagination, one can picture the initial negotiations between the immigrant and the gypsy, with the immigrant promising to use the land only when the nomads were not there, and then progressively asserting their rights over the land. In the cities, where land is at a premium, they are no better than illegal squatters.Slow strangulation: The vocabulary of appropriationPeoples’ homelands, their commons, are not taken over at one go.To make the life of the people unviable the state resorts to a processof slow strangulation, a process of whittling away their rights andresources. The method used has four distinct stages.The first stage is ‘we are all one’. This seemingly inclusive phraseis to exclude people from resources. The common idea is ‘we areone’ nation or religion, language or one family. Wealth of the marginalisedis declared the property of the larger society.In the second stage, there is a call to ‘let us define your rights’.The dominant define the rights of others. These rights are limiting.Now that the legitimacy to define and change rights has been gained,there is a steady whittling away of the rights of the dominated.In stage three, it is made clear that all residual rights are vestedwith the dominant—in most cases the state—as also the right to 7
   * 20. modify these rights. This is the most insidious. All residual rightsshould vest with the people, rather than the other way around.Stage four slowly creeps in, almost without the community knowingwhat and how it happened. The rules are quietly changed, ‘rationalised’till such time that all rights become ‘gifts’. The justifications aremany, but the core issue remains the same: the dominant have abrogatedto themselves the power to suspend all rights of the dominated.The larger society by commission and omission ensures that ‘its’ wealth,which it jealously guards as its own, remains off discussion. Globalagreements, all drafted by the west, routinely talk of all biodiversityas ‘global’ heritage, while tightening controls in safeguarding theirown property such as ‘industrial’ and ‘intellectual’ property. Withincountries, since the cities are privileged over villages, water is stolenfrom the countryside and electricity exported to the cities from tribalareas, denying the local populations, using these tactics.The marginalisation is sequential. First they lose their sovereign powers.Then they become advisors, lose the right to use the resources, becomelabour, illegal settlers, and finally slum dwellers. From being equals,they are slowly pushed towards being disturbances, as the World Bankand the Government of India say in their ecodevelopment project,to waste absorbers and finally to being waste. Being natives, theydo not qualify for informed consent. The slow strangulation processis operative not in land or land–related issues alone. It covers everypart of the life and livelihood spectrum including the abstract ‘superstructure’such as religion and culture. Exploiting peoples first take over relativelyunfilled spaces of the ones they want to subsume, and then claimsovereign powers over the entire community.From description to determinism The casual visitor to some villages in the Nicobar Islands is in for a shock. The community there would quiz them first about why they want to come there, and tightly control the photography and the reports that are written about them. They have an instinctive understanding that the reporter may first describe them. But in the process of ‘formalisation’ anything that is not put in writing is considered absent. For instance,8
   * 21. though they do use the land—a prime stretch of coast in economic terms—that usage is implicit. Since it is not written down in most chronicles written about the fisherfolk, in the process of formalisation they are considered to be encroachers of the coast. The ‘descriptive’ writing becomes ‘deterministic’. When the state claims their property, what is not written down is space filled by the state. It is only for the rest that compensation can be negotiated.The reduction of thought to ideas, ideas to concepts to language andthen to words, speech and writing results in transmission loss at everystage. When translated into law which determines action, it resultsin linguistic deficiencies restricting action—a serious lacunae whichimpedes progress on protection, use and benefits of the commons.The power of language in determining response is captured by thesaying ‘call a dog mad and then kill it’. The entire advertising industryand the propaganda machinery of the state utilise this to the hilt. Theseprofessionals are called ‘spin doctors’ and they put a ‘positive spin’to the benefit of their client. Torture becomes ‘enhanced interrogationtechniques’ and killing civilians becomes ‘collateral damage’. Indigenouspeople become ‘encroachers’ in forests, their homeland for millenniabefore the present countries even came into existence, their rightsbecome privileges, concessions and are then extinguished. They (thepoor) tell lies, cheat and slander but we (the powerful) are economicalwith the truth, disingenuous and misspeak.The words used to describe become words used to determine. Theusage ‘my terrorist is your freedom fighter’ finds its expression inthe wiki wars of terminology: what should be used, Palestine or Israel?It would determine the political persuasion of the user and the solutionsthat would be proposed. Similarly, using the language of property isa giveaway on the user’s position regarding commons.This determinism becomes even more pronounced when translatedinto the written form of the language and then to law. Then whatis written becomes the legal limit. The conflict between the law andthose who break it is often the conflict between the deterministic natureof the written word and the descriptive intent. Most natural ‘laws’are descriptions of practice rather than deterministic. 9
   * 22. Fortunately, languages by themselves are not deterministic, thoughthey do have a certain bias in that direction. Just as language hasbeen used to bind, it can just as usefully be employed to liberate 4the commons and return it to the commoners and the community.Appropriation of vocabularyThe appropriation of vocabulary is done by three methods: stuffing,stripping and slipping. Sometimes these are conscious, and just asequally these could be unconscious acts arising out of the normativevalue base itself. Either way, the result is the same and oftentimesequally injurious to the vulnerable commoner. Most times a combinationof these methods are used.StuffStuffing is when an existing word is appropriated by distortion. Theclassic case is that of ‘Kamaiya’ and the Tharu of Nepal. They hada system of community labour among themselves where each usedto help the whole community without pay. The non–Tharu immigrantsto Tharuwan made use of this voluntary community labour to get theTharu to do virtually anything for them, making the Tharu into bondedlabour in less than a century. Ironically, the Tharu who were entrappedin this system of bonded labour were called ‘Kamaiya’. 5StripStripping occurs when a word is stripped of everything but its mostbasic meaning. In most traditional languages, a ‘river’ would meanthe flowing water, the river bed, the banks with the mangroves andthe aquatic life. However, the term is slowly stripped to mean onlythe water. It is fragmented, commoditised and contracted out forexploitation. The riverbed is destroyed by sand–mining. The fish arecontracted out to fisheries. The water is allotted for pollution to differentindustries. The banks are taken over by the ‘hospitality’ industry. Thetourists on riverboats violate the privacy of the community invadingtheir private spaces at private moments. There is talk of equitableuse of resources by the community (who use the water and resourcesfor life and livelihood) and the tourists (who use it as a commodityfor leisure)—equating the residents and the invaders. The communityis destroyed with the fragmentation and pushed out of their commons.10
   * 23. A dangerous part of this is seen in the slow stripping of the conceptof ‘home’. For an indigenous person, the ‘home’ would mean the forest.It would include the house, the courtyard, the kitchen garden, somefields and orchards and slowly merge into the forest. The indigenousand tribal people spend most of their time outdoors. What the statedoes when it wants to takeover the forest and evict them is to definethe home as the house and then ‘rehabilitate’ them in match box likeconcrete structures saying that it is ‘home’. The entire ‘settlement’—monetary compensation, or equivalent—would be based on this standard,stripping away everything else but the ‘market price’ of the built structure.The human rights approach and standards become the minimum requirementfor this reason.SlipSlips are of two kinds: by referral and by function. In a referral slip,the frame of reference itself slips. The earlier example of turninga ‘home’ into ‘house’ is a referral slip. Similarly, English and Americanare different languages, though they share the same script and manywords. Words similar in spelling and pronunciation have different andsometimes opposite meanings in English and American as, for instance,sanction, first floor and football. American, the ‘default’ language inword processors has facilitated an unconscious shift to American spellings.Another example is the change from commons to common property.Though the commons has always been outside the property framework,when ‘commons’ becomes ‘common property’ it brings the commonsfirmly within the property framework, enabling the government to enforcethe concept of ‘terra nullius’ and ‘eminent domain’—disposable tothe favourites by the government in power. The vocabulary of thestate, the law, is the vocabulary of property. The introduction of propertyintroduces ‘trespasser’ and the related term ‘criminal’. Where thereis no property, there cannot be trespass.The slip is then rapid: from commons to common property to publicproperty, government property, public private partnership (PPP), andfinally private property. PPP itself has different levels: Build OwnTransfer (BOT), Build Own Operate Transfer (BOOT) and joint ventures. 11
   * 24. The state would like to blur the distinction between them, and usethese terms interchangeably since that suits their purpose. Their distincthistories, and therefore the legal distinction, must always be kept inmind, because the key difference is in their treatment of ‘property’.‘Commons’ is outside the property framework, while ‘public property’is within the property framework—islands within private property. Inlegal terms, commons would be res communes, property that is publicdue to its very nature, while public property would be res publicaebelonging and open to the public by virtue of law. This alertness isrequired due to the central role played by the state in alienating thecommons from the commoner. The state would see this creeping acquisitionas a right of the state. Naturally.Slip by use is seen in the slow transition from being human centricto machine centric in the progression: path—street—road—highway—expressway. In a path humans are supreme. There is no mechanisedtransport. Human powered transport such as cycles and carts arerare. In a street too, humans are supreme. Mechanised transport israre and of the smaller variety. In roads, the primary users—the humanbeings—are relegated to the sidewalks, and are decidedly second class.This marginalisation turns to exclusion in highways and expressways,where ‘slow moving transport’ is excluded and actively discouraged.They are often fenced off.So what are ‘the commons’?Commons are the gifts of nature, managed and shared by a community,which the community is willing and able to defend. They are resourcesnot commodities, possessed not property, managed not owned. IvanIllich of ‘De–Schooling Society’ fame frames it differently in ‘Silenceis a commons’. He prefers ‘environment as commons’ to ‘environmentas a productive resource’ because ‘by definition, resources call fordefence by police. Once they are defended, their recovery as commonsbecomes increasingly difficult’. 6In the mapping and subsequent fencing of natural resources, the powerfultook over the best part and enclosed it for their exclusive use. Therest shared the commons and were the commoners who formed the12
   * 25. community. The powerful (the rich) have always had their ‘private’resource base. It is only the powerless (the ‘poor’)7 who were excludedfrom property, who use spaces ‘in common’ to ensure the minimumcritical mass of space for viability to ensure their own survival. Commonsare an attempt to have a viable resource base by collective usagewhere the laws of property (the ‘formal legal system’) breakdown.The commons belong to the people who do not have ‘private spaces’whether for livelihood or leisure. Thus just as the Scots belong toScotland, the Kothas to Kothagiri and the Welsh to Wales, the commonersbelong to the commons much like the geographical indicators of indigenouspeople. In short, they are indigenous to the commons. The commonersare equally protective of the commons as any other indigenous people.They do so with the instinctive knowledge that the health of the commonsis intrinsically linked to the health of the community and the healthof every commoner. As the indigenous people put it: the forest is densestwhere the customary law is strongest. This is such a tight correlationthat one cannot exist without the other. Commons play a strategicrole in maintaining ecological health, reducing poverty, and improvingcollective action. Those who want to destroy a community, destroytheir commons and those who want to destroy the commons, destroytheir community. One is virtually a prerequisite for the other. As longas there exists a community willing and able to defend its commons,that commons will survive.Commons does not mean open, unrestricted access. The term ‘commons’seems to imply that all have unrestricted access at all times. Thereality is that the ‘commons’ were—and are—rigorously defined inaccess, benefits and control. Significant sections of society are keptout on the basis of caste, gender or age. Increasingly ‘commons’ areused by the dominant to claim the right to what are essentially the‘commons of the poor’ for resource extraction and waste disposal.This after they have destroyed their ‘property’. It is no coincidencethat biodiversity is richest in ‘underdeveloped’ areas, with no ‘propertyrights’and that ‘developed’ areas are monoculture deserts, despitethe strongest property rights, law and enforcement. 13
   * 26. ‘Commons’ does not mean that there is no private space at all. Onthe contrary, private time and spaces are rigorously defined and regulated,only that these are temporary and are very clearly a subset of thecommons. They do not pollute or otherwise interfere with the viabilityor health of the commons but enhance it. In villages, most of the spaceis commons, leading to many believing that private spaces do not exist.But when the door is closed, then it is rare for someone to violateprivacy. This is especially for married couples. Requests to call themwould be met with a very final ‘the door is closed’.None of the commons are standalones, leading to the formulation ‘commonsneed commons’. The pastures need the land, air and water to survive.Privatising any would lead to the destruction of the other commons.The idea that ‘commons need commons’ covers not only the naturalcommons (also called the physical or environmental commons) suchas land, air and water, but also the built commons. The built commonsare two—the hardcoms and the softcoms.The ‘hard’ commons, ‘hardcoms’, are the physical livelihood systemssuch as infrastructure built with public resources. Examples of thesebuilt commons would be the crèches, schools, roads, government buildingssuch as villages offices, post offices, public toilets and primary healthcentres. The hardcoms have a knowledge superstructure. Knowledgespans culture, religion, tradition and law on the one hand, and information,information technology (digital commons) and science on the other.These are the ‘soft’ part of the built commons, or the ‘softcoms’.This superstructure is the ‘software’ or the ‘softcoms’ that governits use. The softcoms determine inclusion, exclusion, access, benefitand control.The traditional commonsThe traditional commons were the spaces of the powerless. Intimatelyentwined with their life, these spaces abounded with life, culture andtradition. A sacred grove was not empty, but a place where their ancestralspirits still walked, had medicinal plants, and was inextricably intertwinedwith their knowledge, their identity and their very being. Each bit ofthe ‘empty’ space had a special resonance, each being sentient withthe spirits of the trees, plants and the in–animate.14
   * 27. These are culturally appropriate knowledge reproduction systems thatensured sustainable use of the commons across generations basedon stewardship. This embedding of cultural knowledge into territory—including heavenly bodies—provides a rich tapestry on which theirlife is played out. Dismissing these as ‘shamanism’ is to miss the richnessof the knowledge embedded in a different idiom. The distinction between‘work’ ‘life’ ‘leisure’ ‘time’ and ‘space’ is removed in a seamlesslyintertwined flow. It is this unity that is implicit in their articulation,but needs to be made explicit with industrialisation and enclosure.In this unity, ‘holidays’ ‘exploit’ and ‘trespass’ are foreign concepts.The traditional commons existed outside the formal legal system. Theyhad a range of activities that fell outside the ‘formal’ economic system—either in terms of the monetary and monetised system or the GDPbased system. They certainly did not need unhealthy populations fora healthy balance sheet.The case of the coastal commons is particularly striking since at notime was there ever a sea ‘patta’ or title deed. Even during colonialtimes, the right of the traditional fishers to unrestricted fishing wasnot hindered, though the British themselves were a seafaring nation,their empire was built on naval strength and the key instrument ofpower projection was the navy. Now the state claims everything underthe seabed, just like it claims everything under the ground and in theair. The fishermen were able to fish wherever they wanted—therewere no boundaries in the sea. The recent effort of the governmentis to give permission to the traditional fishers to fish only up to 12miles from the coast. Where the government finds valuables underthe sea, the fishers are prohibited from going there. Again, corporateinterests get priority over traditional livelihood rights. The ‘salt satyagraha’8of Gandhi was to liberate the costal commons when the British triedto enclose them.The present Somali ‘pirates’ have been created precisely becausethe dumping of nuclear and medical waste off their coasts destroyedtheir livelihood. The demonising of the pirates and all those who resistthe dominant state is relevant today, since the ‘African Pirates’ arebeing hunted by virtually every blue water navy. The image of the 15
   * 28. pirate as a savage criminal was created by the British in the ‘goldenage’ of piracy (1650 to 1730). Ordinary people did not believe themyth, and rescued many from the gallows.9 Kidnapped from their homesand forced into virtual slavery on the royal ships, beaten by the captainand then cheated of their wages, the pirates were those who rebelledagainst the entire system. They mutinied and deposed their captains.But once they took control over the ship, they did not replace onecaptain with another. Nor did they let the same organisational structurecontinue. They did not like the oppressive structures on the land—the stratification and hierarchy—so they created an egalitarian communityon the sea. They elected the captain. Everyone had to work, includingthe captain. The rewards of the work were shared by all. Pirateswanted to move out from oppressive structures and create more egalitariansocial orders.10 Decisions were collective. Their bounty was sharedequitably. In short, they showed a new system to the world. Perhapsthe most daring was to take in escaped African slaves and live withthem as equals—demonstrating at one go a non–racist, non–authoritarianworld where equality, fraternity and liberty was practiced.The last word on piracy must go to Augustine of Hippo. A famouspirate was captured and brought to Alexander the Great who askedhim: ‘Why do you infest the seas with so much audacity and freedom?’.The pirate answered: ‘For the same reason you infest the earth; butbecause I do it with a little ship, I’m called pirate; because you doit with a big fleet you’re called emperor’. 11 Of course, Alexanderis ‘the Great’ because he invaded the east from the west. GhengisKhan and the ‘savage Mongol hordes’ did so from east to the west.Urban commonsIn nation building, there is a lot of literal construction of physicalinfrastructure. This infrastructure is also part of the ‘new’ or ‘built’commons. The assumption is that in a democratic state, everyone wouldbe able to use these without discrimination. The reality is that largeparts of society are prevented from using these by design, location,law or custom.The urban commons have a longer history of being formalised, since16
   * 29. the state was always more present in urban areas. Here the urbancommons would more appropriately be ‘public spaces’ due to theirformal nature. Urban commons have a much bigger role for ‘builtphysical commons’ such as infrastructure in addition to the traditionalcommons such as air and water. However, even the latter are formalisedin terms of governance and maintenance since space is at a premiumand the fast pace of life necessitates dedicated personnel for themaintenance and upkeep of these lakes and water bodies, parks andgardens in addition to streets and sidewalks, public transit, schools,hospitals and civic amenities due to the specialisation and fragmentationof urban life.The urban commons are increasingly being fenced off and entry itselfis gradually restricted. Even institutions created specifically to ensureenvironmental sustainability have failed in their primary responsibilityof even straightforward actions such as preventing the cutting of trees.Laws are broken with impunity with the active connivance of thosetasked with protecting and enforcing them. Parks, even neighbourhoodparks, have entrance restrictions whether by time (entrance and useis permitted only at certain times of the day, presumably to prevent‘unlawful activities’ but in reality for moral policing and corporatecontrol) and by fees—effectively making them private haunts of themiddle and upper classes who in any case have their private clubsand recreation spots. The poor who sorely need these spaces arekept out or have their access restricted.The notion of roads being for the public—a ‘commons’—has alsotaken a beating in recent years. Footpaths are an essential part ofroads, since that is the part of the road most used by the vendors,pedestrians and those who use public transport. This space is beingseverely restricted, and sometimes even absent, in cities—both in citycentres and in residential neighbourhoods. Instead the roads are beingbroadened to make space for private vehicles. Land acquisition,environmental degradation, legal obfuscation all attain sanctity on thisaltar of ‘development’. Though most people travel by public transport,very little space is earmarked for bus lanes, bus stops/bus bays, passengershelters at bus stops or footpaths. Cycle tracks are not only absent, 17
   * 30. use of ‘slow moving’ transportation is prohibited on most flyoversand arterial roads, apart from footpaths being absent. This invasionof the street and conquest of the footpath is to have wider roads sothat high–rises can be built with larger Floor Space Index (FSI). 12The vendors have to be removed so that the malls can survive.The language has also undergone significant change from the urbancommons (‘public’) to that of urban enclosure. From gardens we havegone to parks (off limits to animals including pets), with manicured lawns(off limits to humans too), from markets to malls and plazas, from streetsto flyovers and playgrounds to stadiums. New usage such as ‘gatedcommunities’ have also invaded the vocabulary marking the success ofenclosure movements and the disconnect of the elite from economicproduction, cultural vibrancy and democracy of the city.Knowledge commonsThe definition of commons and its legal defence rests on the knowledgebase—and the knowledge base rests on the language employed. Theconstruction of knowledge and the architecture of language is thereforefundamental to the defence of the commons. The physical commonsneeds the support of knowledge commons such as culture, religion,tradition, law, science and technology. A fundamental and critical challengeof the knowledge commons is that only some knowledge is acknowledgedas knowledge itself, the modern day version of ‘my superstition isscripture but your scriptures are myths’. This enables those of the‘true knowledge’ to define what is the commons and what is private,who owns what and what is legitimate. The keepers of ‘true knowledge’can then determine access, control, and exclusion from the commons.Religion and culture are ways of organising knowledge. They are forenclosing the commons, and used as such by the powerful. Thoughclaiming to be ‘universal’—and therefore the ‘commons’ of at leasthumanity—major religions of the world still are exclusivist not onlytowards others (calling them pagan, infidel, kafir, Asura, Daeva) butalso to those within its fold. The duality enables forced inclusion forresource grab and exclusion for benefits.Though knowledge was shared within the community, the ‘community’18
   * 31. was narrowly defined. It often meant only the male of a sub–sectof a sub–clan. Priesthood is a virtual male monopoly, with differentlevels of initiation over long periods of trial being a prerequisite forgreater access. Knowledge was privatised and jealously guarded bymaking them ‘sacred’ and only for the ‘chosen’. In extreme cases,even the knowledge of the ‘sacred language’ from Sanskrit to Latinwas prohibited. Religion—supposed to be ‘universal’—had even moregatekeepers. The defining of entire communities as untouchable, unseeable,unhearable and finally excluding them from the commons altogetheris a singular contribution of the caste system in South Asia and areaswith South Asian Diaspora. Racism contributed the same in differentparts of the world.One of the terms most laced with irony is ‘pirate’—used for thebuccaneers of the sea and those at the information technology vanguard.The present software freedom fighters are termed likewise by thepresent establishment who create the present intellectual property rights(IPR) regimes try to fence knowledge and the present pirates arecombating it. Translated into the digital commons, they are againstany kind of enclosure of knowledge—hardware or software. The Freeand Open Source Software (FOSS) movement is an explicitly politicalmovement to ensure digital commons. It has found resonance in theSwedish Pirate Party, which now has two members in the EuropeanParliament. The Pirate Party even has a ‘darknet’—an Internet servicethat lets anybody send and receive files and information over the Internetusing an untraceable address where they cannot be personally identified—provided by the Swedish company Relakks (www.relakks.com). Thisensures online privacy. The pirate party has three issues on its agenda:shared culture, free knowledge, and protected privacy. Their emphasison privacy is because the new technology makes duplication very easy.So the only way to enforce copyright (and government control) isto monitor all private communications over the Internet. This goesagainst the basic tenets of an open society that guarantees the rightto private communication. 19
   * 32. –Digital commons is often taken for granted, since the internet wascreated by the academic community as commons and not as a commercialor business enterprise. So it can be said that freedom and sharingare hardwired into its genes. Unfortunately, this is a highly contestedarea, where there are many attempts to ‘fence off ’ certain parts.While mathematical algorithms, like life forms, were not allowed tobe patented in a queer twist of logic, software programmes whichare algorithms are allowed to be fenced off.Ivan Illich goes even further when he warns13 of the need to counterthe encroachment of new, electronic devices and systems uponcommons that are more subtle and more intimate to our being thaneither grassland or roads—commons that are at least as valuableas silence. We could easily be made increasingly dependent onmachines for speaking and for thinking, as we are already dependenton machines for moving.In the use of digital technology, software plays an important part.Here the terrain is highly contested between the proponents of openstandards and FOSS on the one hand and the proponents of closedand proprietary standards on the other. Since data is stored and needsto be accessed for a long time, it has to be in a standard that enablesaccess for a long time. It cannot be dependant on the whims andvicissitudes of a company. For instance, if a person’s data is storedfrom birth to death, it will have to be accessible for about 100 years.Few companies have that kind of longevity. So unless the standardsare open, the data may not be accessible if the company goes bankruptor closes down. Security and privacy concerns are another reasonfor adopting FOSS. There will be a lot more said about net neutralityand data portability in the coming days. The limited availability of ‘spectrum’for the mobile phones, leading to an auctioning of the spectrum andthe case of the electrical spectrum are other areas of increasing stress.The ‘mass’ nature of the technology and business models, has openedup a lot of space. While a security and privacy threat, paradoxically,this very same medium offers privacy and a level playing field to someof the most excluded sections. Sexual minorities excluded from thephysical commons have found a haven in the virtual anonymity of20
   * 33. cyberspace, though it must be noted that law enforcement and moralpolice turn the anonymity to their advantage by using fake IDs toflush out identities.The very anti–thesis of the restrictive IPR regimes is the copyleftmovement that has come up with the term ‘creative commons’ withits own standards and licensing. Over the long term, commons is theway to go. In the short term, capital needs the creativity of FOSS,leading to the paradox of multi–billion dollar companies financing theFree Software Foundation, implicitly acknowledging that they needthe creativity of ‘crowd computing’ and that non–monetary incentivesare superior creativity enablers. Wikipedia, built totally with freecontributions, is way and above all other encyclopaedia both in termsof absolute volume and the breath of knowledge and matches themin accuracy despite being ‘open’.14 It is also the most up–to–dateof them all, being online and being constantly updated.As the world moves to being a knowledge society, knowledge is adisproportionately high factor of the ‘value added’, the adage ‘knowledgeis power’ becomes even more important. At its more basic level, theuse of jargon and slang are methods of fencing off the uninitiated.Gate keeping—and preventing gate–crashers—has entire armies oflawyers defending intellectual property, just as the priestly class defendedtheir privileges, including prohibiting transfer of knowledge. Agreementsunder the World Trade Organisation (WTO), Trade Related IntellectualProperty Rights (TRIPS) ensure that the knowledge of the industrialsocieties is kept private while opening up the traditional knowledgeas global commons.Governance and sustainabilityAs people dependent on land are considered uncivilised, many a timetheir rights and livelihood needs are considered non issues which canbe easily compromised. A majority of industrial or environmental projectstarget the already impoverished Adivasi, Dalit and fisher communitiesfor displacement. Almost all the struggles are around the right to accessand benefit from what we now call the ‘commons’. The right to land,water and air never needed to be contested. While the kings fought 21
   * 34. over territory, the right of the people to use the land and the waterwas never in dispute. There was some restriction—most of them afterthe advent of colonialism—on the use of the forests. This has expandedto eminent domain over all the natural resources of their entire territoryof the nation. The general feeling of eminent domain is pervasive rightacross the ideological spectrum. While the people claim their right,the state wants to cling on to the concept of eminent domain, andclaim all the natural resources as a property of the state. Not onlydoes the state claim ownership of the natural resources, but they usebrute power to takeaway the rights of the people—who have usedthis commons for as long as memory goes—and handover the commonsto the corporate sector. The state thus becomes an enabler andrepresentative of anti–people corporate interests. This is legitimisedby various means, from the legal (the state power, including the coercivemachinery) to the mass media (propaganda and soft power).Sustainability of the commons rests on an equitable sharing of costsand benefits—meaning inclusive governance is a prerequisite. However,most often it is forcible inclusion, for resource extraction and wasteabsorption. It is best seen in the forcible commoning of the labourof the Dalits and their forced waste absorption role, and in the commoningof the land, forests and water of the indigenous peoples. This forcibleinclusion for exclusion is ingrained and normative. The normative mememap is so internalised that those within these structures seldom comprehendthe exclusion or inequity. It is only exposure to another frameworkthat enables even the recognition of this injustice and inequity.Even ostensibly inclusive structures in exclusive societies cannot include‘the other’—for instance ‘all party meetings’ in patriarchies seldominclude women or Dalits and never sexual minorities or children ordisabled. They are all dominant caste men—yet they claim the mandateand legitimacy to represent and decide for all ages, castes and genders.The subsidiarity principle that a larger and greater body should notexercise functions which can be carried out efficiently by one smallerand lesser is vital for the survival of the commons and the community.The larger body should support the latter and help coordinate its activity22
   * 35. with the activities of the whole community. It should perform onlythose tasks which cannot be performed effectively at a more immediateor local level. The norm is for the residuary rights to vest with thehighest level of governance. This is a fundamental flaw. As we haveseen, the description of usage is seldom complete. Therefore vestingresiduary powers gives unfair advantage since those at the grassrootsare seldom wordsmiths and rarely conversant in the legal domain whichremains the preserve of those from the dominant, broader levels ofgovernance. If the governance of commons is to support the commons,then residuary rights have to vest with the lowest level. It is onlythe rights that are explicitly ceded either as mandate or delegationthat can be exercised at other levels. This would turn the conceptof eminent domain on its head, and begin the long journey to restorethe commons to the community.A vocabulary of ‘commoning’The dominance of the idea that private property is integral to productionand efficiency assumes that without private property, production willstop or at the very least be ‘inefficient’. But efficiency can be definedin many ways that are community centric. When measured in suchparameters, then the concept of efficiency suddenly changes: Whichis more efficient—a system that has more people in prisons than infarms with a quarter of the population unemployed and has privateproperty or a system that has no one in prisons, has no unemploymentbut has low levels of mechanisation, a low GDP and little private property?When other indicators such as the Human Development Index,Multidimensional Poverty Index, Index of Sustainable Economic Welfare(includes both pollution and income distribution), Genuine ProgressIndicator, the Happy Planet Index and a Gross National Happinessmeasure are used then the picture of development and human wellbeing drastically changes. When the environmental footprint is addedto the picture, many assumptions are debunked. These are relativelynew developments in a people and commons centric vocabulary.The state appropriates the commons, displaces the people, destroystheir livelihoods and then magnanimously returns a few crumbs as 23
   * 36. charity cloaked in the language of rights, entitlements and security—the ‘right’ to education, employment scheme and food ‘security’. Ratherthan this dependency creating charity, restoration of the commonsto the community, strengthening their sustainability and enhancing theircarrying capacity is the true measure of rights and security. But thestate, being an institution of property cannot do so, limited as it isby its inherent characteristics and design as an instrument for theprotection and promotion of property.It is for communities to retake the commons, and then refashion themto egalitarian ends. Retaking the commons needs a vocabulary ofcommons—in thought (attitude), speech, policy (intent), law (norms)and programmes (practice). The vocabulary of the commons cannotbe a vocabulary of property. To define the commons as common propertyis to fall into the trap of property relations. Just as a gender just societyneeds gender inclusive and gender just vocabulary (human, spokesman,spokesperson, spokeswoman), defending the commons needs a vocabularyof commons. It may well be critical in ensuring the survival of thecommons, and perhaps of humanity itself.Endnotes1 Boroditsky Lera How does our language shape the way we think? In What’s Next? Dispatches on the Future of Science, Edited By Max Brockman.2 Languages differ essentially in what they must convey and not in what they may convey. Jakobson, Roman ‘On linguistic aspects of translation.’ In Lawrence Venuti, (Ed) The Translation Studies Reader. London: Routledge 2000. pp. 116.3 Boroditsky Lera, op cit.4 This is the basis for Neuro–linguistic programming (NLP).5 Anita Cheria and Edwin, Liberation is not enough—the Kamaiya movement in Nepal, ActionAid Nepal, 2005.6 The CoEvolution Quarterly, Winter 1983, http://ournature.org/~novembre/illich/ 1983_silence_commons.html (accessed September 2010).7 Poverty is a factor of power, not production. For an analysis of the intimate links between poverty and power see M K Bhat, et al Life Goes On… 1999, and Anita Cheira et al A Human Rights Approach to Development 2004.8 The salt satyagraha (civil disobedience movement) was started by M K Gandhi against the 1882 Salt Tax Act to take the campaign for Poorna Swaraj (total independence) from the British to the masses. The Act not only imposed a tax on salt but gave24
   * 37. the colonial government monopoly over it. The Salt Satyagraha, began with the march from Sabarmathi Ashram in Ahmedabad on 12 March, 1930 to the coastal village Dandi on 6 April, 1930. Satyagraha literally means the force of truth. Satya=Truth; Agraha=Force.9 Villains of All Nations, Atlantic Pirates in the Golden Age, Marcus Rediker, Beacon Press, 2004.10 Ibid.11 Villains of all Nations: Atlantic Pirates in the Golden Age, Marcus Rediker, Beacon Press, 2004.12 Floor Space Index (FSI) is the ratio of the total floor area of buildings on a certain location to the size of the land of that location, or the limit imposed on such a ratio. As a formula: Floor Area Ratio = (Total covered area on all floors of all buildings on a certain plot)/(Area of the plot). Thus, an FSI of 2.0 would indicate that the total floor area of a building is two times the gross area of the plot on which it is constructed, as would be found in a multiple–story building.13 Ivan Illich ‘Silence is a commons’. The CoEvolution Quarterly, Winter 1983, http:/ /ournature.org/~novembre/illich/1983_silence_commons.html (accessed September 2010).14 Jim Giles, ‘Internet encyclopaedias go head to head’, Nature, vol. 438 no. 531 (15 December 2005) www.nature.com/news/2005/051212/full/438900a.html, Note 4 Chapter 1 quoted by Tapscott D and Williams A D in Wikinomics. 25
   * 38. De–commoning Primitive accumulation of capital and de–commoning: Three moments in the history of capital Ritajyothi BandyopadhyayT his chapter is a commentary on the relationship between commons and industrial and postcolonial capitalism. It will argue that Marx used the term as a part of his critique of political economy at atime when industrial capitalism was at its peak. The chapter will thenshow how the appropriation of the very notion of commons has takenplace in the development discourses of the trans–national governingorganisations in the last four decades. Citing two very contradictory usagesof the term in Marx and in World Bank, in critical moments in the historyof capital, the chapter seeks to understand the properties and possibilitiesthat the concept embodies that make it palatable to a range of ideologicalpositions. It then argues that commons is a useful term in forming a radicalcritique not only of private property but also of all forms of property.The chapter proposes that a slippage between commons and commonproperty makes the concept coterminous with the public in a bourgeoiscity. Rallying for commons is a historical project as it calls for a radicalunlearning of the pedagogy of the property regime and modern law.Primitive accumulation in the West and enclosure of commonsThough it now strains credulity, there was once a time, roughly fromthe late fifteenth through the eighteenth centuries, before capital’sspectacular self–imagining had fully colonised modern practices ofknowledge, politics, and representation. Capital was then waxing, andcapitalism’s star was ascending. Its bid to totality remained, nonetheless,yet only an ideal and thus still tentative in its global reach. There hadonce been a time when capital could be figured as partial absence. Suchwas the time of what Karl Marx calls the primitive accumulation of capital,which refers to the initial centralisation and concentration of capital andthe complementary expropriation of peasant or primitive masses, bothequally prerequisite for capitalist political–economic relations: ‘The 27
   * 39. centralisation of capital is essential to the existence of capital as anindependent power’. In many of the states in Europe, primitiveaccumulation transpires as the enclosure of feudal common lands, which‘freed’ serfs from their ties to the lords’ land but also forced them toexchange for the sake of survival the only commodity they possessed,labour power, since the common lands were no longer theirs for subsistencefarming. ‘So–called primitive accumulation’, then, refers to ‘nothing lessthan the historical process of divorcing the producer from the means ofproduction’, argued Marx.Adam Smith’s treatment of the notion of ‘previous accumulation’ as aprecondition for ‘division of labour’ pushes it back to a mythical past,disconnected from the viciousness of the contemporary instances ofaccumulation. Marx, pointing out this weakness in Smith, emphasises onhistoricisation of the process through an ‘extensive documentation of thesubject’. However, one can easily locate some traces of confusion inMarx over the issue of continuity of primitive accumulation in theadvanced stages of capitalist development. The source of this confusion,as Michael Perelman (2000) argues, resides in the Marxian convictionthat the ‘silent compulsions’ of the laws of market are more brutal andeffective than the crude forces of primitive accumulation.What do commons and enclosure have to do with primitive accumulationof capital? In describing the logical condition for the origin of capitalism,‘accumulation by dispossession’, as David Harvey would put it, Marxpresented a vivid account of how the violence involved in the separationof the peasants from the means of subsistence was sanctioned andlegitimised by the British Parliamentary Acts of enclosure of commonlands (that Marx called the ‘Parliamentary form of robbery’) over nearlyfour centuries. To Marx, then, commons pertains to the moment oftransition from pre–capital to capital. It is an initial condition which capitalwould transform into land and property. The persistence of commons eventoday is then the historical remainder of a still incomplete separation ofthe worker from the means of subsistence and hence a logical impedimentto the totalisation of capitalist relations. It was also a ‘historical prefigurationof another, non–commodified world where rational association and humansolidarity would become the basis of social life’ (Caffentzis 2010).28
   * 40. The states in Western Europe addressed the effect of primitiveaccumulation of capital (dispossession) in two ways. First, Marx provideda clear historical example of how British Parliamentary Acts, over thefour centuries, legalised the violence associated with the enclosure ofthe commons. In this process, Marx tells us, commons and enclosurebecame well defined legal terms in England. Marx writes in CapitalVolume I: The parliamentary form of the robbery is that of Acts for enclosures of commons, in other words, decrees by which the landlords grant themselves the people’s land as private property, decrees of expropriation of the people. Sir F. M. Eden refutes his own crafty special pleading, in which he tries to represent communal property as the private property of the great landlords who have taken the place of the feudal lords, when he, himself, demands a general Act of Parliament for the enclosure of commons (admitting thereby that a parliamentary coup d’état is necessary for its transformation into private property), and moreover calls on the legislature for the indemnification for the expropriated poor (Marx 1887: 506).Marx further argues that in the nineteenth century the connection betweenagricultural labourer and the commons had vanished from the publicmemory. As a result, the peasants ceased to receive compensation forthe series of enclosures taken place between 1801 and 1831. As Marxseems to suggest, the legalisation of violence associated with the primitiveaccumulation of capital by the parliament led to the erasure of a certainpublic memory. This was how, according to Marx, the English statepolitically handled dispossession. It is in this endeavour that the statereceived ideological as well as political support from the classical politicaleconomists. Perelman argues that while economists such as Smith andRicardo were advocating laissez–faire on a theoretical level, on a politicallevel, they championed state actions that actively impoverished the peasantry,rather than relying on the market mechanism. The creation of wage labour,far from being a natural outcome, was accomplished through an explicitpolitical agenda that favoured the interests of the capitalists oversmallholders. In this connection, Perelman picks up a particular instanceof institutional arrangements to show how contrived statist interventionswere brought into action to set the premise for laissez–faire. A stricter 29
   * 41. than before enforcement of the Game Laws—laws ‘protecting’ the forestsfrom the encroachments of the rural poor, prohibiting hunting, fishing, andcollecting fruits for reasons other than feudal pleasure—guaranteedstarvation for a large number of ‘indolent vagabonds’ and forced themto look for work in the factories.Stricter enforcement of the laws served the interests of both capital andnobility: the lords could enjoy the pleasure of hunting without beinginterrupted by ‘unruly intruders’ and the capitalists could enjoy the fruitsof labour of the people forbidden to have free access to animal protein.Apparently, the classical economists were dismissive of the question ofthe Game Laws as an ‘ugly residue of ancient feudalism’ (matter of amythical past). Their interest in the subject was perversely related tothe construction of a new ‘bourgeois vision of nature’, which, incidentally,facilitated a greater degree of primitive accumulation by appealing to themetropolitan desire for a pristine elsewhere. For example, Adam Smith’sLectures on Rhetoric and Belles Lettres were quite influential in initiatinga ‘craze for deer parks’, which were nothing more than ‘closely managedgame reserves’. The eighteenth century longings for this pristine elsewherepersists even today in the environmentalist pleas for preservation ofunadulterated urban spaces through evicting slums and prohibiting ‘lowly’slum–dwellers from using lake–water for domestic purposes (see SolomonBenjamin’s chapter in this volume).The second option for the Western European states to tackle the questionof dispossession and social unrest and revolts caused by the dispossessedpeasants had been to deport the surplus humanity (expropriated and notintegrated into the factory working class) to penal colonies in Americasand Australia. In the seventeenth and much of the eighteenth centurythe British used North America as a penal colony through a system ofindentured servitude. When that avenue closed in the 1780s after theAmerican War of Independence, the British began to use parts of Australiaas penal settlements. France sent criminals to Louisiana in the earlyeighteenth century and to French Guiana in the mid nineteenth century(Taylor 2001). In this connection one may remember a series of novelsand short stories written mostly in the twentieth century (Franz Kafka’sshort story, In the Penal Colony, Charles Nordhoff and James Norman30
   * 42. Hall’s historical fiction Botany Bay, Henri Charriere’s autobiographicalnovel, Papillon) depicting the process of deportation and the life of thepeople in the newly colonised land.De–commoning and the colonial ruleThe pre–colonial Indian peasant economy was largely based on thesubsistence ethic. The Mughal system broke down in the second halfof the eighteenth century as surplus extraction became more vigorousand land became a commodity affecting the peasants’ subsistenceprovisions and resulting in peasant revolts. Any standard textbook ofmodern India gives a fairly detailed account of such revolts culminatinginto the Great Revolt of 1857. The growth of property rights in land andconsequently of a land market ultimately replaced customary productionrelations with contract and what Ranajit Guha has called the ‘revitalisationof landlordism’ (Guha 1994: 7). The standard textbook account wouldthen say that due to changes in property relations, the actual farmerslost their occupancy rights and were turned into tenants–at–will. The highland revenue demand increased the peasants’ need for credit. Growingindebtedness led to dispossession. As Guha puts it, the landlords,moneylenders and the state came to constitute ‘a composite apparatusof dominance over the peasant’ (Guha 1994: 8) leading to a dissociationbetween the peasant and the means of production.Not until 1859 did the colonial state look at the tenancy issue and doanything to protect their right. Even after that, dispossession remaineda burning issue. In the inter–war period the question of rural dispossessionwhich was earlier represented only in the papers in the writings of theeconomic nationalists, came to be integrated in the Gandhian nationalmovement and quite often in socialist and communist political mobilisations.In the nineteenth century the colonial state sought to address the questionpartially following the Western European tradition of sending people acrossthe sea. Thus, between 1820 and 1890, millions of Indians were sent toSouth Africa, Trinidad, Surinam and Fiji as indentured labourers.The heterogeneous world of postcolonial capitalWhen postcolonial nation–states like India began to undertake massiveindustrialisation and urbanisation projects, they could not make use of 31
   * 43. the deportation strategies that their erstwhile masters could do with muchease. With the proliferation of the notion of popular sovereignty alongwith electoral politics, the independent nation–state developed a compulsionto address the masses on the questions of dispossession and enclosure.Put differently, while the decolonisation of colonial law did not take place,the postcolonial state had to justify its succession by establishing itsdifference with the colonial state and colonial capital accumulation.The ‘drain theory’ could not be held responsible for poverty. The differencewas established by subsuming all interests to the paramount nationalinterest, by justifying the state actions through the techno–scientificrationality of planning (Chatterjee 1997) and also to some extent byextending the state’s pastoral function as a remedy to dispossession. Itwas also the time when transnational governing organisations such asthe World Bank, IMF, etc began to influence the policy–making in theso–called third world. In the first two decades since decolonisation theproblem of dispossession could have been kept at bay with the combinationof a Rostowvian optimism and state repression.But in the 1970s, the problem of dispossession began to pose a seriousthreat to states all over the third world. In such a complex moment ofcapital’s hegemony, there had been the sudden recognition in the‘development discourse’ that a sub–economy consisting of a variety ofpetty economic activities not only exists but stands out as ‘a potentialprovider of employment and incomes to millions of people who wouldotherwise lack the means of survival’ (Sanyal 2007). Already in the 1970s,the notion of development mutated from the focus on accumulation toa focus on promotion of welfare through direct intervention. Today, thegoal is to constitute ‘an economic space outside and alongside capital,for its castaways, rather than to create entitlements for them throughdistribution of income’. This is, as Kalyan Sanyal (2007) holds,governmentality in a more complex and effective form.The most important aspect of the ‘informal sector’ is that its producersare estranged from the means of production as a result of primitiveaccumulation of capital. But they are unable to become the ‘working32
   * 44. classes’. Sanyal conceptualises this ‘dark space of classlessness’ as a‘need economy’—an ensemble of economic activities undertaken for thepurpose of meeting needs, as distinct from activities driven by animpersonal force of systemic accumulation.This producer is not a petty producer in the historical sense for they haveto purchase their means of production with the mediation of money fromthe market. Also, need–satisfaction as a goal of production does not ruleout the existence of surplus in the need economy because ‘consumption’includes present and future consumption. In Sanyal’s conceptualisation,all production activities driven by need, outside the ‘accumulation economy’,irrespective of whether they use wage–labour or not, are constituentsof the need economy.The circuit of the ‘accumulation economy’ inevitably encroaches uponthe need economy and usurps its space within capital’s own domain. Thisis the ongoing process of primitive accumulation. Yet at the same time,in a simultaneous process, the dispossessed are rehabilitated through the‘pastoral functions’ of the international organisations and the developmentalstate. Sanyal calls this a ‘reversal of the effects of primitive accumulation’.The relation of dominance continues to be operative in the ‘complex caseof hegemony’: While capital acts on its own, the ‘need economy’ existsas population groups, as constituted objects on which the techniques ofgovernance can be applied. The asymmetry is also reflected in the factthat while need–based production must conform to the logic of the market,and the rules of the market pertain to the system of capitalist production,the accumulation economy cannot be ‘questioned from the perspectiveof consumption and need’. But the ‘formal–informal’ dualism hides thisasymmetry by describing them as two autonomous and parallel spaceswithout any contradiction, thereby placing them on a ‘non–political terrain’.The development discourse, however, confines the need–based productionto a space outside the world that is capital’s own. Partha Chatterjee (2008)discerns in this twin process of the need economy being promoted andalso quarantined, in its constitution through developmental intervention,the ‘implosion of the two regimes of power described by Foucault: the 33
   * 45. restrictive and the productive’. It is in this moment of the heterogeneoustemporalities of capital that the transnational governing bodies have startedre–appropriating the commons. The entire era of social forestry and thencommunity forestry in 1980s and 1990s witnessed certain de–fencing of‘public’ forests. These spaces were then imagined as the essential commonproperty for the reproduction of the community—the community whichwould protect the common property, collect minor forest products freelyand also market them taking financial assistance from microcreditinstitutions. For the microcredit institutions the poor who were onceestranged from the means of production would now become the primesite for accumulation. Thus, commons has now been associated not onlywith the reproduction of subsistence economy but also with theaccumulation of corporate capital. This is the reason why, in the 1990sthere had been a cautious acceptance of the commons at the highestlevels of international planning.While in the early 1980s the neoliberal Berg Report called for a systematicprivatisation of the communal land in Africa, the 1992 HumanDevelopment Report of the UNDP made a policy reversal saying that‘a compelling reason for supporting community resource managementis its importance for the poor’ (World Bank 1992: 142, quoted in Caffentzis2004) and that ‘governments need to recognise that smaller organisationalunits, such as villages or pastoral associations, are better equipped tomanage their own resources than are large authorities and may be a moreeffective basis for rural development and rational resource managementthan institutions imposed from the outside’ (World Bank 1992: 143, quotedin Caffentzis 2004).In the new era of capitalist accumulation, the reunification of thedispossessed with the means of production has been the primary meansto keep alive the circuits of capital accumulation. The poorest of thepoor—the ‘bottom billion’ would serve as a frontier market opening upnew horizons of capital accumulation. One should keep the fact in mindthat microfinance institutions are not always non–profit organisations. Theyare after profit like commercial banks, investment vehicles and money–markets. The new accumulation economy mines the fortunes of the bottom34
   * 46. pyramid, first by re–associating them with the common property and othermeans of production and then by making profit out of this reunificationseeking to ‘eradicate poverty through profit’ (Prahalad, 2004).If this is the case, then the ‘need economy’ (as Sanyal conceptualisesand Chatterjee largely agrees) is far from being a sphere separate fromthe accumulation economy only providing the conditions for the hegemonyof the corporate capital. The present moment of capitalist developmentinvests more on common property than on the notion of the public andprivate divide. As the example of community forestry in the 1990s shows,the current capitalist development can even be read as anti–public in nature.Any slippage from commons to common property in anti–capitalistscholarship runs the risk of accepting the recent capitalist purchase ofthe concept of commons.Commons as a negation of propertyWhat does an anti–capitalist scholar or an activist do with the conceptof commons? Michael Hardt’s (2010) reading of Marx that commonsis a critique not only to the private property but also to all forms ofproperty including the state ownership of resources (the grand Sovietmodel) is the most appropriate. Commons is then a part of the critiqueof political economy for, as Marx and Engels argued in The CommunistManifesto, the critique of political economy is, at its heart, a critiqueof property. ‘The theory of communists’, argued Marx and Engels inThe Communist Manifesto may be summed up in a single sentence:‘Abolition of private property’. A few lines before this famous declaration,Marx and Engels state that the ‘distinguishing feature’ of Communismis the ‘abolition of bourgeois property’ (emphasis is author’s). By seekingto abolish the bourgeois property relations Marx and Engels could specifythe historic role of the Communists: abolition not only of private propertybut also of the entire archaeology of bourgeois property—the veryseparation between public and private property. It is in this sense thatthe present chapter uses commons as a challenge to all forms of property.Again, in Economic and Philosophical Manuscripts, as Hardt shows,Marx makes a distinction between crude or corrupt communism and its‘positive expression’. The crude communism merely generalises private 35
   * 47. property by extending it to the entire community, as universal privateproperty. Hardt (2010) argues that by the oxymoron ‘universal privateproperty’ Marx seems to tell us that for Communism, the withering awayof private component of property is not enough; the positive communismshould fight for the very abolition of the notion of property (read propertyafter bourgeois revolution). To Marx, then, the essence of communismlies in the idea of commons, which is a paradigm to question the legitimacyof private property, public property and the state property.Public/CommonsThinking of commons as a critique of property in the cities is essentiallya historical project. The concept of the modern city builds itself in thesystematic negation of the notion of commons and in the promotion ofa separation and ordering of spaces in public and the private. The slippagebetween commons and common property makes commons yet anotherversion of public property making it palatable to the liberal argument.Rallying for the notion of commons as a critique of public is a part ofa historical activism as it seeks to fight the repression that the city andits public have imposed on commons—a fight against historical anddiscursive erasure of a certain set of ideas. This section will show howthe history of public is also a history of the erasure of the memory ofcommons in Kolkata.In the British legal tradition, good government referred to the protectionof the ‘public good’ or ‘public interest’ from the depredation of sectarianand purely private interest. This is well represented in the promulgationof the Indian Penal Code (IPC) in 1862. The section 268 of the IPCdefines a person guilty of public nuisance as ‘who does not act or isguilty of an illegal omission which causes any common injury, danger orannoyance to the public or to the people in general who dwell or occupyproperty in the vicinity, or which must necessarily cause injury, dangeror annoyance to persons who may have any occasions to use publicrights’. The colonial law in India sought to build public spaces in the citiesemulating the European model. For instance, as Prashant Kidambi (2007)argues, the 1902 Police Act in Bombay empowered the police to ‘targetthose sections of the urban poor who made a precarious living on the36
   * 48. streets of the city: beggars, barbers, carriage drivers, cart–men, cobblers,hawkers, prostitutes, vagrants and the like’ (Kidambi 2007:149).Even before this, the Bombay Municipal Act of 1888 introduced by–lawsthat prohibited all usages that were deemed to be ‘encroachments’ upon‘public streets’ (Kidambi 2007:150). The Kolkata police—according toits 1870 report—roped in all who were accused of acts such as unlawfulgathering, sounding musical instruments on public streets without a pass,bathing on public streets, letting off fireworks on public streets, beggingfor alms on public streets, and even uttering obscene and abusive words.On this latter charge alone, at least 378 people were arrested in Kolkatain 1870, out of which 275 were convicted (West Bengal State Archive,Report of the Police of the town of Kolkata and its suburbs, 1870, byStuart Hogg, Commissioner of Police, Kolkata. Home Department, PoliceB, 15 July 1871, No 5). Similar developments were also replicatedelsewhere in the colonial world. Thus in the late nineteenth century, thecolonial state in Singapore acted as the ‘guardian of the public arena’.Moreover, a new kind of crime, the ‘public nuisance’, which, ‘[b]etween1870 and 1920… absorbed the single largest fraction of police energiesin most parts of India’ (Anderson 1992:9), led to ‘a massive interventionin the social use of the physical environment’ (Anderson 1992:2), so that,for instance, ‘[r]oads that had been the stage for itinerant hawkers,occasional markets, and small–scale manufacturing fell under the prohibitionon obstructions…[and] could be made the object of prosecution’ (Anderson1992:19). In addition to this, street demonstrations of religious festivalssuch as Muharram, Nam Sankirtan, Charak, etc., were designated ascriminal acts and codified as ‘miscellaneous offences’ under the IndianPenal Code. The Kolkata elite began to keep themselves away from thesepopular cultural expressions. Following the establishment of the Societyfor the Suppression of Public Obscenity by the ‘educated natives’ at ameeting in the Kolkata Town Hall on 20 September 1873, resolved to‘aid the government in putting in force the sections of the Penal Codeand the Printing Act which were meant to preserve public purity’ (Friendof India, 25 September 1873, quoted in Banerjee 2003). The Kolkatapolice finally prohibited the sawng (pantomime) performances on the streetsduring the Charak festivities in 1874. The sawng performances weretreated as ‘indecent behaviour on public streets’ in the list of offences 37
   * 49. in the Indian Penal Code (Friend of India, 25 September 1873, citedin Banerjee 2003.).There are at least three ways in which politics and claim–making onurban land have taken place in India. A history of the public, which isa negation of commons, is possible by looking at the three forms thaturban politics on land has taken.First, as scholars working on the history of public space in India haveelaborated (Anderson 1992 and Glover 2007), much of the uniquenessof public owes to the legal distinction between ‘public’ and ‘private’(Anjaria 2008). Historians agree that in Indian towns and cities therehad been common spaces (Bayly 1983). But these were not organisedby the public and private divide (Kaviraj 1997). Instead, as Sudipta Kaviraj(1997) tells us, rules concerning the social uses of these spaces entailedboth obligations and responsibilities (Anjaria 2008). Yet at the same time,this is not to suggest that the colonial concept of ‘public space’ completelyerased the traces of prior socio–spatial arrangements. Rather, one noticesthe ways in which the historical and legal development of the conceptof ‘public space’ in India under colonialism partially reveals theheterogeneous and intersecting legal and political lineages that inform itscontemporary fraught usage (Anjaria 2008). In this way, scholars seecontemporary debates on urban space in India as what Kaviraj calls a‘peculiar configuration of the modern’ (Kaviraj 1997:92). In this connectionKaviraj has made an interesting distinction between the bourgeois publicand what he calls pablik—a vernacularised and proletarian appropriationof the term as well as a territorialised negotiability of public norms andmeanings as a radical consequence of democratisation of democracy.Hawkers and pavement dwellers in Kolkata, for example, regularly usethe English terms ‘public’ and ‘public space’ to advance their own politicalclaims in the city. But, as one observes, the pablik also implicitly acceptsthe notion of the bourgeois public. Without the understanding of the publicit is hardly possible to recognise the Indian vernacular genius that corruptsthe public. This very way of interpreting the everyday quotidian practicescontributes to the forgetting of the notion of commons.38
   * 50. Second, the separation between public and private in bourgeois legalinstitutions had given birth to modern subalterns who could make use ofthis distinction to form a legal argument with the colonial state. In thiscontext, a case of ‘communal tension’ in Kolkata from the ‘Daily Notes’of the Taltala Thana submitted to the Deputy Commissioner of Police(DC) of the ‘Special Branch’ between 12 January 1910 and 20 April1910, recorded as the ‘SB Secret Report on Communal Groups andMuslim Affairs’ (SB/ SW/636/1910) is illustrative. It demonstrates boththe interpretation and the process—the different interpretations of theterm ‘public’ at play in defining the city space, and the process oftranslation from one domain of urban practice to another that the caseentailed. The purpose of citing this case is to point to the connectionsbetween the colonial histories of the ‘public space’ and the more recentdeployment of that term in struggles over space in the contemporary city.It is from the English translation of the original petition attached withthe Daily Notes of the Taltala Thana and not the original papers of Baksh.Khuda Baksh, a shopkeeper from Faizabad, migrated to the city in early1898, built a mosque on the ‘public land, marginally encroaching thefootpath of the Dharmatal Street, half–mile east to the Tipu Sultan ShahiMasjid’, in the vicinity of the Esplanade in Central Kolkata. Before thebuilding was fully plastered in January 1910, Khuda Baksh was summonedto the Taltala Thana and asked by the police officer in–charge to stopconstruction. Some days later, however, Baksh and some of the fellowshopkeepers of the neighbourhood submitted a petition to the MunicipalCommittee of the Kolkata Corporation stating that the mosque would notbe used for the ‘public prayer’ and would purely be ‘used for privateaccommodation and convenience of himself and his friends’. The officerin–charge reluctantly agreed to this restricted use until it became apparentseveral weeks later, that azans (Islamic calls to prayer) were regularlymade from the mosque and ‘the public generally in the neighbourhoodand bazaar’ was using the mosque. Baksh was reportedly summonedto the municipal authority and ordered to deposit a Rupee 1000 suretybond to ensure that he would not have the azan called in the mosque.He replied by submitting another petition that reversed his earlier claimin fundamental ways: ‘the masjid (mosque) is not my private property 39
   * 51. but devoted to the pious uses. For this reason I object to give security….NoMuslim law prohibits worship because of fear or other scruples. No masjidis a private property…nor do I invite anybody to pray in this masjid—and from this date I will not go there myself’.Usage of the word ‘public’ in the English translation suggests that Bakshhad acquired consummate skills to make use of bourgeois legal termsto defend his case. The case also shows that subjection constitutes aform of repressive and productive power; power subordinates the subject(and maintains each subject within a state of subordination) but it alsoproduces the legal subject, rendering subjectivity, desire and agencypossible. The subordinating power, argues Judith Butler, that precedesand exceeds the subject that it produces, may be appropriated by thesubject in the form of opposition or resistance. In other words, powersubjugates but it also ‘subjectifies’ enabling claims to empoweringsubjectivity and agency or reflexivity.Third, one may use the logic of the legitimate use of the public asenshrined in law to corner and erase other existing and possible pablikpractices. The streets can be strictly designated for automobiles andfootpaths to the pedestrians. Such spaces can then be disciplined andmapped by grid, lines and fences. Mobilising this logic, the state mayencircle an open field and transform it into a public park where morning–walkers are welcome if they agree to pay a maintenance fee. Mobilisingthe same logic of space management, the zoning laws can get implementedwhich would not only govern the space but also manage the groups whouse that space. The National Policy on Urban Street Vendors in Indiais a classic example of such a mobilisation of the public. There are manyactivist groups who find the National Policy as providing the solution toall street problems.All the three forms of the articulation of the public in claim–making belongto the narrative of property. When Baksh, in our second case, successfullysubverted the public/private binary and explored the linkages betweenthe two to justify his case, he did so without questioning the very sanctityof private and public property. His actions emboldened rather than debasedthe notion of property.40
   * 52. This precisely is the disciplinary integration process in which all formsof value production gets reduced to a singular form of value production.Disciplinary integration entails a double history: the history of legalisationof property and also the history of the negation of commons. An agendafor commons is a project to undo property and to unlearn the pedagogyof modern law. This might be an impossible project. But, it is impossibilitythat constitutes the very philosophy of activism.ReferencesAnderson, M. 1992. “Public Nuisance and Private Purpose: Policed Environments in British India, 1860–1947.” SOAS Working Paper 1.Anjaria, J. S. 2008. Unruly Streets: Everyday Practices and Promises of Globality in Mumbai. PhD Dissertation, Department of Anthropology, University of California, Santa Cruz.Banerjee, S. 2003. “City of Dreadful Night: Crime and Punishment in Colonial Calcutta.” Economic and Political Weekly 38 (21): 2045–2055.Caffentzis G. 2004. ‘A Tale of Two Conferences: Globalization, the Crisis of Neoliberalism and Question of the Commons’, URL = http://www.globaljusticecenter.org/papers/caffentzis.htm, retrieved on 10 November 2010.Chatterjee P. 1997. ‘Development Planning and the Indian state’ in Byers T. J. (ed). The State, Development Planning and Liberalisation in India, Delhi. Oxford University Press.— 2008: “Democracy and Economic Transformation in India.” Economic and Political Weekly 43 (16): 53–62.Glover, W. 2007. “Construing Urban Space as ‘Public’ in Colonial India: Some Notes from the Punjab.” The Journal of Punjab Studies 15 (1): 2–14.Guha R. 1994. Elementary Aspects of Peasant Insurgency in Colonial India. Second impression. Delhi, Oxford University Press.Hardt M. 2010. ‘The Common in Communism’, Rethinking Marxism, 22(3): 346– 356.Kaviraj, S. 1997. “Filth and the Public Sphere: Concepts and Practices about Space in Calcutta.” Public Culture 10 (1): 83–113.Kidambi, P. 2007. The Making of an Indian Metropolis: Colonial governance and Public Culture in Bombay, 1890–1920. Burlington: Ashgate. 41
   * 53. Marx K. 1887. Capital: A Critique of Political Economy, Volume I. Tans. Moore and E Aveling, Progress Publishers, Moscow, USSR.— 1975. Economic and philosophical manuscripts. In Early writings, trans. R. Livingstone and G. Benton. London: Penguin.Marx, K., and F. Engels. 1998. The Communist Manifesto. London: Verso.Perelman M. 2000. The Invention of Capitalism: Classical Political Economy and the Secret History of Primitive Accumulation, Duke University Press.Prahalad, C.K. 2004. The Fortune at the Bottom of the Pyramid: Eradicating Poverty through Profits, Cambridge, MA: Wharton School Publishing.Sanyal, K. 2007. Rethinking Capitalist Development: Primitive Accumulation, Governmentality and Post–Colonial Capitalism. Routledge: New Delhi.Taylor A. 2001. American Colonies, Penguin, London.42
   * 54. Commons to Capital With special reference to the Mundas of Jharkhand S Basu MullickT he tribal and ecological history of India has been the history of forced transformation of the natural commons into private property and the property of the state, euphemistically called public property.It has also been the history of the indigenous peoples’ relentless struggleto resist such transformation. The colonial process of dividing the commonsinto public and private domains got completed in the postcolonial periodof so called nation building. In the following period of structural adjustmentprogramme during and after the 1990s the state has opened the publicdomain for privatisation by the trans–national corporations and Indian smalland large companies. Natural commons are being treated as capital. Statemechanisms overtly violate laws that came into being out of state processesto protect commons. For the indigenous peoples, privatisation of naturalcommons is not only loss of livelihood but the disintegration of theircommunal life, their egalitarian culture and bio–centric world outlook.Disintegration of natural commons also leads to shrinking of the communalknowledge commons. The knowledge of taming the animal kingdom, themedicinal values of vegetation and the climate disappear along with thedenudation of forest and destruction of the animal kingdom.Destruction of natural commons causes sharpening of gender strugglesand results in the diminishing status of women in the tribal societyas well. Commons have been the domain of women in the forest–based society. It has been the storehouse of their natural and ritualknowledge, a bastion of their economy and, more importantly, a sourceof their power and status. The loss of commons therefore, leads tothe growth of patriarchy, which is otherwise stunted in their society.With the disappearance of commons, the community has also internalisedthe dominant notion of privatisation of livelihood resources. Even wherea little bit of commons survives legally the families divide them amongstthemselves and treat them as private property. This has been leading
   * 55. to disintegration of many a traditional institution that strengthens thecommons and the communal mode of production. The destruction ofthe old commons of natural resources and communal labour is bringingforth a new commons of labour market and natural resource bankfor capital to exploit and rich to enjoy while the commoners suffer.In the new commons of the urban centres the original inhabitants areeither fully excluded or their access to them is severely limited.The recent movements reclaiming the commons have been spreadingvery fast through out the country. The fact that the Adivasis are atthe forefront of these movements reveal that the collective memoryof their egalitarian social life has not fully disappeared and the urgeto go back to the ‘golden age’ of commons is still alive.OverviewIn recent times a section of Indian bureaucracy and politicians havebeen advising the government to consider the tribal land and forestas capital in the event of its acquisition for industrial purposes. Theowners of the land would become shareholders in the company thattakesover the land and would be entitled to receive dividends. In therecently drafted mining legislation that would be called Mines andMinerals (Development and Regulation) Act, 2010, the Governmentof India agreed in principle to provide 26% equity or pay out of profitsto the local communities whose land would be mined. This is envisagedin the context of the best possible way of compensating the tribalpeople whose livelihoods are being disrupted by industrial projects,especially mining. Big trans–national companies like Arcelor Mittaland Tata Sons are all in favour of this idea of upholding the neo–classical view of land as another kind of capital.This is a radical shift from the hitherto practiced state policy basedon the colonial view of land as state property under the usage of thetenants that can be acquired in lieu of monetary compensation. It isalso not entirely motivated by the view of conflating land into capitaland allowing land rent to be hidden and diluted in ways so that theunearned interest arising from social improvements fell to speculatorsrather than being returned to society in rent. It is true that the companiesacquire land much more than is needed for the declared purpose of44
   * 56. acquisition. When the market value of the land goes up owing to socialimprovements mostly done by the state they sell the surplus land orappropriate the higher value. Thus they cheat the state and the individualowners who would have otherwise benefited.The phenomenon of land being treated as capital may be understoodin the context of the ever–expanding character of capital. In the presentera of neo liberalism, bringing the resource rich tribal areas into thefold of capital is a necessary factor for the survival of capitalist economy.Now in the context of neo classical or ‘two factor economics’ landhas lost its independent meaning and position as one of the three factorsof production, the land, labour and capital. Now it is only labour andcapital where land as capital is to produce dividend and not rent, andthe landowner is a shareholder in the company and not a producer.The journey of land from being commons to capital provides a fascinatingstory of changing relationship between human and nature. Land thatwas held by society in common, as free as the air, water and climate,travelled a long way to become private property and then to commodityand finally to capital also entails a series of changes in its vocabulary.However, this transformation did not take place without resistanceby the commoners and its violent suppression by the usurpers of thecommons in the past, and the pattern is being perpetuated till the presentday. Therefore every new coinage of terms that replaced the previousones in the history of changing vocabulary of commons is the productof a violent means to define and redefine the relationship betweenhuman and land with a progressively shrinking access to land by thecommon folk.The changing vocabulary of commons indicate a societal change,especially a change in the mode of production. Therefore, it parallelsa corresponding change in the vocabulary of the commoners, as tribes,castes and class. The changing vocabulary of commons may be tracedin four phases, the primordial, medieval, colonial and modern. Thischapter looks at this change with a special reference to the Mundatribe of eastern India. 45
   * 57. Primordial commons“Atamata bir ko talare (under the dense forest) our ancestors lived”,recollect the Mundas. It was a vast desolate forest, seya sandi bir,(Roy 1912:5). The collective remembrance of the Mundas in Jharkhandcultural region, comprising eastern part of the central tribal belt ofIndia, corroborates the findings of the modern archeologists and historians.Even till the early medieval period it remained a part of a vast topography,known as the Great Central Indian Forest (Habib 1982). It occupiedthe whole of central India between the Gangetic plains in the northand the Deccan plateau in the south. The oral history of the Mundasdescribes the long wanderings of the tribe through out this jungle fastnessover a long period of time in the olden days (sida samay re) till theyfinally reached the place they called the Bir Kandara Disum, thedensely forested country (Singh 1978:31). Here they settled villagesby clearing the virgin forests. In every settlement they left a smallpart of the virgin forest for the spirit of the land to dwell and to bepropitiated by them. They called it the jaer (Jaher, Santal), the sacredgrove. Later they named their habitat as the Jaer Kandara or JaerKanda, the land of the sacred groves. The present Hindustani wordJharkhand, literally means ‘forest land’, might have been derivedfrom this original Mundari word.‘The Supreme Being (Sing Bonga) and His ‘first love’ Mother Earth(ote enga) together created this world for all of us including the forestbiodiversity and the animal kingdom’, thus goes the Munda belief (Mundaand Manki 2009:51–2). The Supreme Being turned the Asura womento female spirits to protect every part of the Mother Earth (Asuralegend. Hoffman 1950:240–50). The village tutelary spirits are to protectthe community from diseases and dangers. The Munda belief system,unfolds before us a way of life based on egalitarian principles, a continuumof nature, ancestor and human, and a symbiosis between human andanimal kingdom. It emerged from a lost world the whole of humanityshared once. It was the world of magic where the creator and thecreated lived together. It was a bio–centric world as opposed toanthropocentrism of the normative religions. The Supreme Being (SingBonga) created it for his own pleasure (Asura dehavada. Chattopadhya1959:48–50). The cause of the variegated creations was, therefore,46
   * 58. not to please the human. The human was created along with othersto fulfil the desire of the god to have companions. The scheme ofthe creation of world is such that it becomes the home of all the creations,the spirits, the life, the vegetation and the animated matter. It is aholistic creation of interdependent components. The earth was createdtruly as commons.The land under the sun and under the trees (sing suba, daru suba)was a continuous topography for the Mundas, where their ancestorsroamed, settled and resettled. Their association with the land is throughthe totems (usually animals and plants belonging to the local biodiversity)and the spirits of the animated material objects. Thus land for themis not an arbitrarily fenced piece of territory. The territories betweenthe tribes and their settlements are demarcated naturally. This is whythe Munda vocabulary has no word for ‘country’.The Mundas received the territorial identity from the aliens of theplains of the river valleys, the diku (literally ‘the others’). The dikuscame from all directions and formed states (primary) in their landand gave them names, such as, Chutia Nagupur, Padma, Singh Bhum,Shikhar Bhum, Jashpur, Sarguja and so on. Indigenous and tribal peoplesall over the world call themselves as ‘human beings’. But the othersprefer to call them in different names that in most of the cases arederogatory. The dikus in Jharkhand also coined names for the tribes.The Mundas, for instance, call themselves the hodoko, meaning ‘thehuman beings’. But the others who occupied their land called themMura (mudha in Sanskrit) meaning ‘foolish’ (Roy 1912:24 footnote10). Similarly, the birhodoko or simply birhors, a forest dwellingbranch of the Mundas, are called as mangkadias in Odisha meaning‘monkey like people’.Commons to propertyThe history of transformation of commons into property is traced backto the epoch changing phenomenon of state formation out of the Aryansocial matrix that began and matured between 500—200 BC in theeastern part of the vast Gangetic plains of the North India. Thephenomenon preceded a long period of gradual social transformationthat the early Aryans passed through. 47
   * 59. During the rig vedic and atharva vedic period overlordship of the land,vesting in the tribal chief, the village–chief (gramani), or anyone elsedoes not seem to have existed. There is the further possibility that…some Aryan tribes (even) did agriculture in common … during thetime of Alexander (Habib 1995:61–2). The ‘equalitarian’ structure ofthe agrarian society of the Aryans must surely have been affectedin the course of time by their struggle with the indigenous enemies(Habib 1995:62). With the help of the defeated enemies, the dasa/shudras, as they were categorised by the Aryans, and the discoveryof iron in the upper Gangetic valley around 1000BC–800BC the Aryans,who were originally pastoral tribes, took thousand years to denudethe forest commons of the indigenous tribes of the Gangetic valley(gaanga is a Mundari word for the river Ganges, Ganga in Sanskrit)and turned the land into the property of their clans (tribes), the jana.The root of the jana or samgha in the tribal social formation is provedby their names that are mostly totemic by origin (Chattopadhyaya1959:1157). The territory under the control of the jana was knownas the janapada, literally ‘the commons of the tribe’.The availability of vast stretches of cultivable land along with a largenumber of enslaved human labour and cattle prepared the ground forthe emergence of a new social formation. The Aryan tribes, the janas,changed into oligarchies and had helots, the dasas, to cultivate theircommon land. In other words, the Aryan commons survived but itscharacter changed, the Aryan farmer became landowner cultivatinghis land by slaves (Habib 1995:64). At a later stage ‘the land andthe produce changed from usage to property… cultivated land changedfrom clan ownership to ownership of the gahapati (grihapati) asthe head of the household’ (Thapar 1984:158). The substitution ofgahapati for vaisya points to the final disintegration of the originalvis (Thapar 1984:88), the Aryan commoners. Fields were countedas an index of wealth for the first time, showing that large landedpossessions becomes possible (Habib 1995:64). ‘There is no doubtthat the presumably more advanced samghas were showing the earlysigns of class division…’ (Chattopadhyaya 1959:1157).48
   * 60. The historical law is that the states could emerge only on the ruinsof the tribes (Chattopadhyaya 1959:142). The Aryan oligarchies starteddisintegrating owing to their internal developments or stratifications.The states of Magadha and Kosala emerged out of such disintegrationsof oligarchies. Magadha is an example of a primary state, the earliestone, and it has been argued that the secondary states are formedby primary states conquering non–states. The Magadhan conquestof a large part of central and northern India included, besides someprimary states, a vast territory that did not have a state system. TheMagadhan state that became an empire under the Maurians (c.200BC—AD650) could not economically restructure these vast territories andintegrate them into the state system (Thapar 1984:159). The questionof restructuring the economy hinges on the wider question of landownership(ibid: 161). Therefore, the tribal land system with communal and equalitarianaccess survived on a large scale alongside the emerging state systemwhere land lost its tribal character of being commons and transformedinto private and public properties.The common land, forest and water bodies thus brought under statecontrol were put primarily in the public sector. Arable land was inboth public (sita) and private sectors. The forests, however, remainedas commons except for some identified as ‘elephant forest’ or ‘forestfor king’s hunting of expeditions’. Even though Kautilya prepares along list of forest produces in his Arthashastra and puts forests inthe category of the property of the state, the large tract of forestseven within the Maurian empire remained the domain of the free forestdwellers. A notion of ‘common property’ also emerged. Sheds, courtyards,latrines, fireplaces, places for pounding grain and all open spaces wereto be used as common property (Rangarajan 1992:342).Arthashastra recognises that the samghas (oligarchies) are characterisedby the collective leadership of a council of leaders and that they werecohesive entities. Enemies could not break them easily (Rangarajan1992:619). The emerging states, however, could not allow the survivalof such oligarchies around them for two reasons. There is no prospectfor the rising monarchs so long as the free samghas survived in theneighbourhood. Besides, the example of their democracy, (the political 49 

1. 61. commons), was dangerous for the monarchies. ‘The destruction ofsamghas was thus inevitably a part of the policy of the rising statepower’ (Arthashashtra, as quoted by Chattopadhyaya 1995:473). Theother reason, that the same Arthashastra of Kautilya stresses maybe the more important one: the importance of conquering the landof the tribal peoples for the prosperity of the state and its inhabitants(Rangarajan 1992:3).The Maurian state imposed its own rule and moral dictates (dharma)over the conquered territory by replacing the customary law of thedefeated people (Rangarajan 1992:351). Customary laws are nothingbut the knowledge commons of the concerned people of a particularlocality. In the following period the state increasingly started makingland grants to the Brahmins, the Monks (Buddhist), the temples andmonasteries ostensibly to settle them in the countryside for the propagationand establishment of dharma, the law having religious sanction. Theland thus provided was mostly the commons of the non–state people,called the ‘wasteland’, that the grantees were expected to bring undercultivation. This fact immensely contributed to the growth of ‘feudalismfrom below’ (Kosambi: 1975:295) during the post Maurian period.Conquest brought the Brahmins in the land of the Atavikas by landgrants. The Brahmins brought many an agricultural technology to thehitherto swidden agriculturists. Plough agriculture began on a largescale. The ranks of shudras and panchamas started increasing rapidly.The self–sufficient Indian village emerged. All this happened at thecost of the forest and swidden commons. This process led to the stateformation out of the indigenous (non Aryan) matrix as well. A largenumber of hitherto non state communities disintegrated, their chiefsbecame their kings who connected the territory of the community tothe larger state system and introduced new institutions of tax andturned the people into peasants tilling their privately owned fields.The Varna system transformed into the caste system. The people whodid not know agriculture, the hunting gathering ones, were forciblybrought under the new system as real proletariats, the Dalits. The50
2. 62. following empires of the Hindus, Buddhists and Muslims religiouslyfollowed the pattern of disintegrating the resource, political and culturalcommons of the tribal society that the Maurian Empire set.However, despite the emergence of empires and feudal relations ona large scale a larger section of Indian peoples remained outside thepale of this system. What Badden Powel (1972: 226) observed throughhis firsthand experience and what Marx gathered through his secondhand sources about the dominant type of village society of India (AsiaticMode of Production) was in fact the tribal model of social system—economically self–reliant and politically autonomous. The majority ofthe pre–British Indian villages was of that type. The Brahminical modelof village society existed only around the politico–religious centresof the state. Though it was a politically powerful model, it was notthe socially dominant one. Since the Muslim rulers did not disturbthis model, the Indian village society remained predominantly tribalin nature till the advent of the British colonial rule. Now when weuse the term tribal we basically refer to the sedentary communitiesof cultivators rather than the hunter–gatherers, though they sharedthe same social values.The centralised feudal states under the Hindus and the Muslims hadno serious stake in the low yielding rocky lands of the indigenouspeoples and the primary states of the forestland had no strength tosubjugate them completely. Both kinds of state were happy with irregulartribute made by the people. They did not disturb the indigenous socialsystem to any considerable extent (Sinha, Surjit. 1987: xvii). Rather,the medieval state system sought to preserve tribal autonomy (Singh,K.S.1985: 124).In Jharkhand the primary state formation began around the fifteenthcentury. The secondary state could not emerge owing to strong tribalresistance. The ‘jungle states’ followed the same Magadhan patternof engagements with the tribes, the koles (the generic name givento all the tribes living in the region by the Aryans) in this case. Underthe overall supremacy of the Muslim rule that did not deviate fromthe previous state system, much the territory of the kols was divided 51
3. 63. into Jagirs, Parganas and Maujas. The hatu/ ato of the kols wasnot only rechristened as mauja, its nature was also changed radically.The commons of the Mundas in the area under the control of thestate was made both crown land (Majhihas) and private land distributedamong the Jagirdars and members of the royal family. The commonsthat the Mundas retained was termed as khuntkatti (khunt meanslineage and katti means clearance), the clearance of the lineage ofthe Mundas. In the area where privatisation of land became the orderof the day, due to the pressure of the state, the land was called thebhinhari and the holder as the bhuinhar. Forest generally continuedto remain as commons.The institutions that sustained the commons earlier either disintegratedor became highly corrupted to accommodate the change in the humanland relationship in the bhuinhari areas. The political commons patti(the village council where decisions are taken collectively on the basisof consensus) in the khuntkatti areas enjoyed much more autonomythan its counterpart called parha in the bhuinhari areas. The labourcommons (the institution of cooperation and collective action of labour),denga or madaiti (cooperation) was corrupted to become a free labourpool for the kings and the intermediaries. The common access to thefruits of labour of the individual families (comprising of agriculturalsurplus and gatherings and games) ensured by the institution of kupulor mehmani (becoming guests) gradually lost its social significance.The state became the harbinger of sanskritisation among these lineagesocieties. ‘Aryan culture and Brahminical Hinduism contributed totheir (a section of the Mundas) transformation into agricultural communities’(Singh 1985:29, Sachchidananda 1979:66). New knowledge of theagricultural operation and implements were introduced from the plainsand the autochthonous chieftains acted as champions of Neo–Brahminism(Singh 1985:27).Land grants to Brahmins brought from the neighbouring Bengal, Odishaand Bihar and construction of temples became a regular practice ofthe state. The ritual knowledge commons (Sarna belief system) ofthe ‘animist’ tribes faced gradual disintegration with the spread of52
4. 64. popular Hinduism and Brahmins usurping the ritual knowledge of thetribes. Many tribal shrines were converted to Hindu temples.Mundas, like other communities, lost their language commons in andaround the seat of political power. Mundari was either fully replacedby Sadri (Nagpuri), Panchpargania and Khortha or it was heavilycorrupted by them. Consequently, the folk literature and dance forms,the commons of the community’s performing arts, were transformedto a great extent in the exposed areas and accommodated alien elementsin the core tribal areas. Munda and Zide (1969) observed the structuralinfluence of the Bengal Vaishnava songs on the traditional Mundarifolk–songs. And we know that Vaishnavisim stood for a personal godas opposed to the Munda tradition of collective propitiation of theSupreme Being.Another very important development took place within the tribal societiesin the area of gender relations along with the process of state makingin their midst. The transformation of commons to private property,first to the fraternity of the lineage brotherhood and then to the individualfamilies, diminished the access of women to the resources drasticallythough their labour contributed the greater part of the community poolof labour. The Munda brotherhood (hagako/ bhaiad) kept the cultivableland as common property of the lineage in the khuntkatti area butin the bhuinhari region land became property of the family. Withthe transformation from ‘hoe’ to ‘plough’ agriculture along with theeasy availability of cheaper iron tools that was made possible by thestate, the society became progressively sedentary and economic dependenceon forests started diminishing. Though the forest still remained thedomain of the tribal women as commons, their role as the food suppliersreduced as the settled agriculture, now under the control of men, becamemore productive than foraging and the swidden. The state promotedthe supremacy of men over the land and accentuated the division oflabour between the genders. Several taboos debarred the women fromthe ownership of means of production like the plough.Women were marginalised and then excluded from the knowledgecommons. Where they could not be excluded, that part of the knowledgecommons itself was delegitimised and demonised. Women’s traditional 53
5. 65. role as healers, najom, was challenged and male institution of baid/deonra was introduced to replace it. Women’s knowledge of biodiversitywas branded as their knowledge of poison and their ritual knowledgewas branded as black magic (jadu tona). Branding of powerful women,or women in possession of land of her deceased husband, as witchesand killing or harassing them by the lineage brotherhood was a formof gender or class struggle, which sought to remove land rights fromwomen and confer them to men (Kelker, Govind. 2000: 2041–2).Colonial transformation of commons to commodityBritish colonial rule shook the tribal model to its roots. The colonialstate drastically changed all previous equations between the indigenouspeoples and the state in terms of the preservation of commons. Itnot only changed the ‘basic design’ of the Indian caste based villages,it also initiated a radical change in the basic structure of the indigenouspeoples’ societies. This was not a question simply of a new type ofland revenue administration. What was at issue was something farmore fundamental—the basic value by which economic life in thevillage had been governed in the past (Béteille, André 1980: 109).In the previous Mughal system, the state enjoyed only the right tocollect the land revenue, which was in many places akin to only avoluntary contribution, bali or chanda, for instance, in Jharkhand.The peasant enjoyed communal rights over all the natural resourcesof the village, the land, forest and water. Now under the PermanentSettlement (1793) the British East India Company turned the commonsas commodity (zamindari) and auctioned them to the Zamindars, anewly created class of landlords, as their permanent property. Thealien Zamindars and the socially alienated local elites of the primarystates destroyed the landownership pattern by turning the independentcultivators/peasants into tenants–at–will, the raiyat, (a rent payingpeasant who enjoys no permanent rights over the land that he tills)and dispossessed them of their ancestral rights over land, forest andwater resources.However, the cruelest aspect of the colonial state making was itspolicy of placing the environment in the public domain and agriculturein the private domain (Shivamakrishnan: 1999:4). Forced peasantisation54
6. 66. of the tribal people and alienation of the forest from them indicatedthe end of commons and the social values of the communal accessto resources. Common natural resources of the indigenous peopleswere declared as terra nullius and occupied by the colonial stateas their eminent domain. ‘Community managed forest land, which onceexisted over large parts of India, were steadily dismantled during thenineteenth century. The process of state usurpation was consolidatedin the Indian Forest Act of 1878’ (Gadgil and Guha 2000:40). Forthe first time the indigenous peoples’ domains were brought underthe state power with an alien legal and administrative system.Now the vocabulary of the forest commons was changed from bir–buru (hills and forests) of the Mundas to reserve, protected and privateforests. A regular army, police and prison implemented laws, unacceptableto the indigenous peoples. These regions were opened first to mercantileand then to industrial capitalistic exploitation. Commercialisation offorests, mining activities and industrialisation exposed the indigenouspeoples to the most abhorring experience of displacement. Thousandsof people were taken to far away places in the tea gardens of Assamand Bengal as indentured labourers. However, the colonial forest policiesand practices of forest management could not succeed in the largepart of the ‘Bengal woodland’ that included the eastern tribal beltof India. ‘In part this was because woodland Bengal—its people, floraand fauna—clearly emerged as an agent able to confound forestersand resist their ambitious schemes’ (Shivaramakrishnan 1999:3).Tribal revolt throughout the nineteenth century forced the colonialstate to adopt a policy euphemistically called ‘paternalism’. It wasactually a policy of drawing ‘treaties’ with the revolting tribes. Underthis, the tribal habitat in Jharkhand was put under a simple administrativesystem (initially as South Western Frontier Agency and after 1935as Partially Excluded Area) and land rights of the tribes were recognised.‘The British administrators had built up the theory of peasant proprietorshipfor Chotanagpur tribals, who were described as the original reclaimersof the land. This theory of peasant proprietorship was reiterated bythe German missionaries who, with the agrarian background of theirhome country, pleaded for the restoration of the rights of the tribals 55
7. 67. as peasants’ (Singh: 1978:29). The Chotanagpur Tenancy Act (1908)was the outcome of this policy that made tribal land, both privateand collective, inalienable. As a token recognition of the traditionalcommons of the Mundas, only 446 villages were identified that hadbeen continuing to remain as the commons of the lineages. They werecalled the Mundari Khuntkatti villages that would enjoy the ownershiprights of the Munda lineage brotherhood over the land, forest andwater resources under the traditional boundary of the village. TheAct did not accept the land rights of the tribal women. It upheld theChristian Missionary (Hoffmann, J.B. 1950:2388) and Hindu anthropologist(Roy, S.C. 1912) interpretation of the tribal society as patriarchal andwomen enjoy no land rights. As this interpretation ignored the internalgender conflict over the access to resources, both physical and knowledge,it failed to recognise forest and swidden fields as the source of thewomen’s political power and economic stamina. Taking advantageof this omission of women’s rights in the Act the rights of men startedgrowing faster and, in many places, the Munda women lost their ‘lifeinterest’ in paternal and husband’s land and were forced to be happywith the right to ‘maintenance’ in case of widowhood or remainingspinster till death. The Act treated the Mundas as peasants.However, this treaty was not respected in the following years. By1930 the number of the Mundari Khuntkatti villages were reducedto 156 (Taylor 1930. Survey Settlement Report. Ranchi). Large scaleforest felling was undertaken to meet the demand of shipbuilding,construction of railway tracks and mining. Plantation under the schemeof ‘scientific forest management’ began to replace natural forest andexotic trees replaced the local species. The Mundas objected to theconstruction of roads in their country. They said, ‘we are happy withour hora (the village pathway), we do not want the sandak (roads)because hora takes us to the commons but the sandak takes it awayfrom us’. Roads and railways brought more and more outsiders tothe land of the Mundas who, in collaboration with the administration,kept alienating tribal land blatantly flouting the tenancy Act. Christianchurches that entered into the region in the middle of the nineteenthcentury occupied large chunks of tribal land as did the Hindu templesand Muslim mosques. The government acquired large tracts of land56
8. 68. for administrative purposes and for the army. All this happened inthe name of ‘public purposes’.Modern times: Commons to capitalThe hundred years of tribal revolt against the British colonial rulecannot be equated with the ‘freedom struggle’ of the Indian elitesthat wanted to replace the rulers not the content of the rule. Tribalsrose against an alien civilisation that turned nature into private propertyand human into tenants and everything that nature offers and humanproduces taxable. Land that they revered as mother was turned intocommodity and their egalitarian way of life was ridiculed and attackedas savagery. It was a conflict of civilisations. In the post colonialscenario the basic content of the tribal movement has not changedsince the nation state that replaced the colonial state did not restorethe lost value of the communal living on common resources. Tribalspromised to create a new political commons of democracy hand inhand with the rest of the people of India and the state promised torespect tribal rights over land and forest commons (Saksena, H.S.1981:Jaipal Sing and Pandit Nehru: Statements in the Constituent Assembly).However, whatever came out of the state process was taken awayby the state mechanism of the Indian nation state.A critical view of the Tribal Panchsheel (five principles) of the earlyyears of independence reveals that ‘development’ is the key wordof the panchsheel that was laid down as the tribal policy of the governmentunder the aegis of Pandit J Nehru, the first Prime Minister of India.It was shelved before it could really take off because the so–callednational development came into conflict with tribal development. Thediscourse of tribal development revolved only around the issue of stateentitlements. Even that failed to benefit the tribal people as the tribalareas were progressively being treated as internal colonies. Half acentury long bitter collective experience of the country’s developmentturning into destruction for the tribal life, livelihood and commons promptedthe tribal peoples to unanimously reject ‘development’ as the meansof achieving better life. They are now looking for an alternative todevelopment. Globally too the debate of tribal development has beenclinched and development has been branded as another name of neo– 57
9. 69. colonialism that has not only been adversely affecting the lives ofthe tribal people but also of all the marginalised and weaker sectionsof the society.‘Development’ explains why legal measures that followed the Panchsheeltaken to satisfy the tribal demand of restoring political commons atthe village level through participatory democracy, and forest commonsthrough collective management rights and ownership rights of NTFPswere so blatantly disregarded. The non–implementation of the PanchyatiRaj Extension to the Schedule Areas Act 1996 (PESA) and the ScheduledTribes and Other Traditional Forest Dwellers (Recognition of ForestRights) Act 2006 cannot be explained simply in terms of a corruptand power hungry bureaucracy but in terms of the overwhelming demandof resources by the industrial capital.The truth that the tribal folk singer’s lament, ‘banali pardeshi nijghare’ (we have become strangers in our own home), reveals is enoughto imagine how the ‘chariots of the foreign companies treading uponthe chest of our homes’. More than 60% of the displaced familiesin Jharkhand has been the tribal peoples. The commons have alwaysbeen the easy targets of ‘development’. The state converted largetracts of forestland into mines and doled out village commons (gairmajrua am and gair majrua khas) to the mining and private companieswhenever demanded. The folk poet’s determination, ‘we will not partwith our dancing ground, whatever may come’ could not stop themarch of development in the Munda country.Destruction of tribal commons is partially caused by the internaldevelopments of the tribal society itself. Tribal societies never remainedisolated from the rest of the world. They survived on the peripheryof the caste based peasant society of medieval feudalism but remainedconnected to it through trade and tribute. It is still alive in the hillsand forestlands throughout the country but heavily exposed to the industrialmode of production. As jungle states emerged out of tribal matrixin the medieval period owing to the development of privatisation ofagricultural land under the feudal mode of production, a new tribalelite class is emerging in the present time owing to the entry of thetribal people in the tertiary sector of the economy increasingly dominated58
10. 70. by the capitalist mode of production. A section of the tribal educatedelite and politicians welcome industry considering it as inevitable andcondemn the attachment of their people to the tribal mode of productionas a curse in the path their progress.In this context it is worth quoting the statement of the first chief ministerof the Jharkhand state (province) who was himself a tribal person.“The era of development has started. Agriculture cannot sustain us.We have to enter into business and for that we need land and capital.Who would give us capital against our land under this non–transferableland tenure system? As long as the present tenancy laws are thereboth tribal and non–tribal people will remain backward. Let us demandthe scrapping of these Acts that the British colonial rulers createdto execute their policy of divide and rule” (Singh and Kumar: 2003:viii—ix). His view has been receiving unconditional support from the othertribal chief ministers who followed him. They were the architects ofone hundred and one Memorandum of Understanding (MoUs) signedbetween the Government of Jharkhand and the trans–national andIndian industrial giants of the corporate world.However, this fact cannot be cited as an indication of the inevitabilityof the disappearance of the tribal mode of production and the tribalvalues of an egalitarian way of life based on economic, political andcultural commons. This fact has to be seen as an outcome of a civilisationapparently dazzling with diabolic consumption, but unsustainable andecologically criminal at its core. It is the capitalist civilisation whichhas been spreading its tentacles faster than ever before in the presentera of globalisation. What is inevitable is nothing but the collapse ofthis civilisation.This brings us to the debate of ‘socialism’ as an alternative to capitalism.Criticising the so–called socialist mode of production as it was practicedespecially in the Soviet Union and as it is being implemented by anauthoritarian state in China, Gadgil and Guha point out that, from anecological point of view, the similarities in these two developmentalpaths (capitalism and socialism) are more significant than their differences.They are similar in terms of the scale and direction of natural resourceflows, the patterns of energy use, the ideologies of human–nature 59
11. 71. interaction, the specific resource management practices and ultimately,the cumulative impact on the living environment. Therefore they concludethat industrial socialism and industrial capitalism are simply variantsof one industrial pattern of resource use (Gadgil and Guha: 1992:14).This conclusion, which is absolutely correct, however, may lead oneto believe that there is no alternative to capitalism. The authors unfortunatelysee the root of the problem in the industrial mode of production andnot so clearly in the very substance of capitalism as such.Along with industrialisation growing population is also considered asa factor for the destruction of commons. Garrett Hardin’s theory onthe Tragedy of Commons (1968) leads many people to believe thatprivatisation of commons can only save them from their selfish useby the growing population and their ever growing need. The logicpresented by the state in support of alienating forest commons fromthe tribal people and putting them under the state control emanatesfrom the same theory.The alarming rate of global warming and horrifying pace of the destructionof biodiversity bring us back to the question of what is the alternativeto the capitalist mode of production. Socialism, the way it has beenpracticed so far, is certainly not the answer. But one has to recognisethe fact that Marxism never subscribed to this form of socialism. Infact, twentieth century socialist projects mimicked the capitalism intheir pursuit to compete with it and, in the end, authoritarian statesemerged that “survived the deadly climate of the twentieth centuryimperialism by following capital in its exploitation of labour (and overexploitation of nature). They never achieved, therefore, the most elementarycondition of socialism, as defined by Marx and Engles in the CommunistManifesto: that it be ‘an association in which the free developmentof each is the condition for the free development of all’” (Kovel: 2003:xxiii).Free development of all is truly the value of the commons.60
12. 72. The changing vocabularyChanging vocabulary of human beingsPilchu hadam and pilchu pudhia (the first man and woman) — horo honko (childrenof human beings) — hatu kisan (village cultivators) — raiyat/porojaChanging vocabulary of landSing suba daru suba (belongs to the supreme being)—jaer kanda (belongs to thetribe)—ote hasa (belongs to the lineage occupation but under the usage of thefamily)—raiyati zamin (private property of the individual).Changing vocabulary of the forestBirburu (belongs to the Supreme Being)—khuntkatti birbur (belongs to the foundinglineage of the village)—reserve rorest and protected forest (belong to the state) andprivate forest (property of the zamindar)—national park and sanctuary (belong tothe state).No notion of country but space—topography as opposed to fencing of the space,drawing boundary between the states, kingdoms and empires, zamindary and privateproperty.Changing vocabulary of political commonsPatti/ Parha (Panch—village council)—council of only lineage brotherhood/ fraternity(women are left alone), Munda/Manki head of the council/head of the confederationof councils) becomes tribute/tax collector under the state system, gram sabhareplaces patti/parha under PESA. A government servant not belonging to the tribe/lineage is appointed as the secretary of the council in recent times by the state.Changing vocabulary of cultural commonsGiti Ora (youth dormitory) is branded as dens of promiscuity and was sought to bereplaced by schools and hostels by the Christian missionaries.Sarna belief system was/is being replaced by Christianity and Hinduism.Mundari (language of the Mundas) was being replaced by Sadri/Panch Pargania/Khortha (language of the rulers) under the medieval state, by Hindi under the colonialand modern state. 61
13. 73. ReferencesBaden–Powell, B.H. 1972. The Indian Village Community. Cosmo Publication. Delhi.Béteille, André. 1980, The Indian Village: Past and Present, in Peasants in History edited by E.J. Hobsbawm et.al. Oxford University Press.Chattopadhya. 1959 Lokayata. Peoples Publishing House. Bombay.Gadgil, M. and Guha, R. 2000. Ecology and Equity in Use and Abuse of Nature. Oxford. New Delhi.Hoffman, J.B. and Emelen, A.V. 1950. Encyclopaedia Mundarica. Government Printing Press. Patna.Hardin, Garrett. 1968. Tragedy of Commons. Science.Habib, Irfan. 1982. An Atlas of Mughal India. Oxford. Delhi.Habib, Irfan. 1995. Essays in Indian History: towards a Marxist perception. Tulika Books. New Delhi.Kelker, Govind. 2000. Witches: Asia, in Kramarea, Chris and Spender, Dale (2000), edited Routledge International Encyclopedia of Women, Routledge, Newyork, Volume 4.Kosambi, D. D. 1975. An Introduction to the Study of Indian History. Popular Prakashan. Bombay.Kovel, Joel. 2003. The Enemy of Nature. Tulika Books. New Delhi.Munda, R. D and Manki R.S. 2009 Adi Dharam. Rajkamal. New Delhi.Munda, R. D and Zide, Norman. 1969. Revolutionary Birsa and Mundari Folk Songs. The Journal of Social Research, Vol. XII, No. 2.Rangarajan, L. N. 1992. Kautilya: The Arthashastra. Penguin.Roy, S. C. 1912. The Mundas and Their Country. Second Reprint, 1995, Catholic Press, Ranchi.Sachchidananda. 1979. The Changing Munda. Concept Publishing Company. New Delhi.Saksena, H.S. 1981. Safeguards for Scheduled Caste and Tribes–Founding Father’s View, Uppal Publishing House. New Delhi.Shivaramakrishnan, K. 1999. Modern Forests. Oxford, New Delhi.Singh, K. S. 1978. The Munda Land System in P. Ponette (ed.) The Munda World. Catholic Press. Ranchi.Singh, K.S.1985. Tribal Society in India. Manohar, New Delhi.Singh, K.S.1987, The Chotanagpur Raj: Mythology, in Surajit Sinha, (ed) Tribal Politics and State system in Pre–colonial Eastern and North Eastern India. K.P.Bagchi and Company, Calcutta.Singh, Pankaj and Kumar, Niraj. 2003. Santalpargana Bhumi Kanun: ek samiksha. Sathee. Godda.Sinha, Surajit: 1987, ed. Tribal Politics and State system in Pre–colonial Eastern and North Eastern India. K.P.Bagchi and Company, Calcutta.Thapar: 1984. From Lineage to State. Oxford. Delhi.62
14. 74. Commons, communities and state appropriation Ashok Choudhary and Roma “Our ancestors protected this forest and land and this is our heritage. To protect the forest and land for our future generations. Then howcome the British ruler has become the owner of our heritage? We cannot accept that.” — Tilka Majhi from the Jabra Pahadiya Tribe of the Santhal Paraganas, to the collector of Bhagalpur during a trial when the government tried to reallocate land. Baba Tilka Majhi was first Santal leader who took up the arms against the British in the 1789. He was killed by the British.I n India the majority of the rural population has been dependent on natural resources for their livelihood. Traditionally, most of these natural resources—land, forest and water—were commons. But in the historicalprocess, and especially during the colonial rule, many of these commonscame under private and state ownership. The colonial powers’ quest tograb land for increasing agricultural revenue, supply of timber and otherforest produce, for industrialisation and for accumulation of capitalnecessitated a total change in the pattern of social ownership to privateand state ownership. In this process, the symbiotic relationship betweensociety and common resources almost got destroyed.Since then the ownership of forest resources has remained a criticalissue, resulting in a series of conflicts between Adivasis and otherforest dwellers on the one side and the Indian state and corporationson the other. It has become an important political issue now with theenactment of the Schedule Tribes and Other Forest Dwellers(Recognition of Rights) Act 2006, popularly known as the Forest RightsAct (FRA). With the growing awareness about the political rights, thereis a class struggle now in many forest areas especially in the central,eastern and Himalayan regions.It is pertinent to look into the history of these areas in the context ofappropriation of forest land by the Indian state, against the basic principles
15. 75. of Indian Constitution. Forest people had fought tooth and nail againstthe concept of eminent domain established by the colonial powers andforced the then colonial state to enact progressive laws in certain areassuch as the Chotanagpur Tenancy Act (CTA) 1908, Santhal ParganasTenancy Act (SPTA) 1912 and Van Panchayat Rules 1930 in Uttarakhand.Ironically, the government of independent India systematically acceleratedthe process of annexation of forest land. Thus national independence cameas a curse to the forest people and forest dwellers.So the struggle for community control over the forest resources stillcontinues in different regions in different forms. Since the invasion onforest resource by the neo–liberal regime after 1991, the resistance bylocal people’s organisations have also intensified and spread in the lasttwo decades. In some places the resistance has taken militant forms.Given the role played by the Indian state as a facilitator for profiteeringrather than a protector of constitutional and human rights of the affectedcommunities, all these resistance movements are fundamentally for thedefence of their constitutional rights, leading towards the demand forcommunity governance of natural resources. The situation has compelledthe ruling parties, and ‘mainstream’ politics in general, to formulatelegislations which would recognise community rights fully or partly. FRAis an important milestone in this process.Though FRA recognises community rights over forest land, produce andforest management, it does not fit into the dominant political economyof the Indian state or the present form of governance, which continuesto be based on eminent domain. As a result, the conflict between thestate and the people on the issue of forest governance is intensifying.This creates political space for the peoples’ movements who are usingFRA as a tool to empower themselves for decisive negotiations with thestate, on a democratic premise.Till now the state has not negotiated on these critical conflicting issuesdirectly with the community representatives. Rather, it is doing so throughits own representatives by forming various committees, through the NationalAdvisory Council (NAC) or with the committee appointed to reviewimplementation of FRA. But as the forest rights movements led by66
16. 76. people’s organisations grow ever stronger the state will have to start thenegotiation process with the community representatives.Defining the commons, its defenders and destroyersThe commons, according to the provisions of the Constitution of Indiaand the Panchayati Raj Act, are that every village had a place in itsjurisdiction that was kept for the community usage. They are called nistar,haqdari and bartandari rights—basically rights of villagers for grazing,fishing, collecting firewood, hunting, water and other necessities of life.A majority of the commons were encroached by the landed sections,corporations, projects, state controlled cooperative societies and governmentdepartments for forests, irrigation, railways and public works. Significantly,the commons appropriated by private citizens are not taken intoconsideration when accounting for alienation of the commons though theyhave taken away substantial areas of common resources. Only directstate appropriation is referred to in most of the cases.The state has played a major role in appropriation by the private parties.The issue of commons is therefore directly related to the larger questionof agrarian reforms in the country. The commons or the land used bythe village community for the public purposes such as grazing, pastures,collection of fuel–wood, rights over territorial waters, fishing rights inthe ponds, rivers, seasonal rivers, collection of non–timber forest produce(NTFP) from the village forests etc are issues of power and control inthe rural hinterland. Perusal of the land records of any village from anystate will show that the village today has very little commons or nocommons at all. The common lands have been appropriated by the richor dominant caste sections. In the case of forests, appropriation is bythe forest department.History of state appropriation and resistanceThe colonial state initiated an economic process for accumulation of capitalby encroaching upon natural resources such as forests, land and water,in the nineteenth century. The imperial powers started annexing the forestsin the eighteenth century. A powerful section of the Indian merchant classjoined with the British in accumulating capital and thus became a partner 67
17. 77. in the exploitation of natural resources, using Adivasis (first dwellers,indigenous people) and Moolnivasis (forest dwellers) as cheap labour tostrengthen the colonial power. Many Indian corporations have actuallygrown in this process and still maintain the culture of appropriation.The government expanded its own forest lands by taking over privateforests of the landed classes and village commons. By doing so it cameinto direct conflict with those who worked in or lived in these forestedareas. The approximately 75 million hectares of forest area that remainedin the eminent domain of the forest department, which is 23% of thetotal land area of the country, awaits effective agrarian reforms. Forestdwelling communities have always had diverse dimensions in terms ofpopulation and activities. Each community has its own history of strugglefor their rights against the state. But these struggles remained isolatedfrom each other. It was only in the 1980s, when some social movementactivists started political mobilisation in different areas and began toestablish a linkage among these struggles that regional and national levelforums and networks were created.The National Forum of Forest People and Forest Workers (NFFPFW)was formed in this process in 1998, with the primary objective of creatinga national level struggle by linking the regional and local struggles. It wasa difficult task to formulate an appropriate definition of forest basedworking people who are dependent on the forest for their livelihood. Finallyit was decided that ‘any worker who depends on forests for livelihoodor is exploited in any manner by the forest department, forestcorporation or contractors, or collects minor forest produce orcultivates the so–called forest land for a living, or is pastoralistdepended on the forest, shall be called a forest worker’. This definitionwas enriched by the indigenous people’s concept of Adivasi societyorganised around labour. It is also built around the concept of communityand collectivism and is interested neither in the exploitation of labour norin selling its own labour.With the enactment of FRA, a new legislation has opened up a debateand intensified struggles in various forest areas on the issue of land reformsinside the forest areas. This critical issue has not been addressed properlyin the last six decades. In enabling an understanding, one needs to be68
18. 78. aware of the facts about the appropriation of common resources by thestate for profiteering by feudalistic and capitalistic forces. In this contextit will be relevant to discuss the background and examine some importantcase studies of some crucial areas where conflict is intensifying.Land grab by the governmentBefore an effective Land Reforms Act could be enacted in the country,vast tracts of forest vested with the erstwhile princely states, zamindarsand talukdars were transferred to the forest department. These includedhuge tracts of commons which were annexed by the forest departmentwithout any process for settlement of rights. Those who lived in the forestswere ignored and their activities and presence became ‘illegal’.These included the forest and forest land in the boundary of the gramsabha or revenue village. The example of Bihar and Uttar Pradesh, whichthen included Uttarakhand and Jharkhand, is illustrative. There themovement against Zamindari (landlord) system was very strong. So justbefore the Zamindari Abolition and Land Reform Act could be enacted,the forests of both these states were vested with the forest departmentby bringing new legislations. The Private Forest Act 1948 was enactedhurriedly in the respective legislative assemblies of Bihar and UttarPradesh to legalise this appropriation retroactively. This illegal invasionfrom the forest department on the village forest and commons continuedin various forms even till recently. Since forests are in the central listin the Constitution of India from 1975, state governments became passiveaccomplices in this appropriation.According to the study conducted by NFFPFW in Uttar Pradesh, anestimated three million acres of gram sabha land has been appropriatedby the forest department between 1950 and 2000, apart from the landunder the Land Ceiling Act. If estimates of the land appropriated byprivate people surpassing the land ceiling are included, it will beexorbitantly high.In 1955 these lands were again notified as ‘protected forests’ accordingto Indian Forest Act 1927. The Land Reform Act came into existence 69
19. 79. in 1952 but enforcement of this Act took another eight to ten years inthese states. It might be noted that protected forests are those governmentforests where rights are recorded but not settled.Even before the land reform legislation came into force, the governmentstrengthened the forest department. It soon became a biggest landlordin the country, much against the spirit of the Constitution enshrined inArticle 31–A, the object of which is to facilitate agrarian reforms providingfor acquisition for any ‘estate or any right therein, extinguishment ormodification of any such rights, shall be deemed to be void on theground that list is inconsistent with or takes away or abridges anyof the rights conferred by Articles 14 to 19 of the Constitution. Hencethese were all illegal transfers of land, as they were not acquired underthe Land Acquisition Act and also none of the state revenue laws hasany provision of transfer of lands under the jurisdiction of the gram sabhato the forest department.A glaring example could be seen in Khunti district of Jharkhand whichis ‘Khuttkatti’ area, where CTA is applicable since 1908. Around 450villages had the control of forest land and forest according to this Actat that time. The land records, the khatiyan, are with the Munda tribe.But in 1955, the forest department demarcated its own boundary in thisvery area without going for verification of rights and demarcation.The Revenue Department notification dated 1 July 1955 reads that, ‘The forest and the waste lands comprised in this notification shall be called Protected Forests. The nature of extent of rights and government and of private person in and over the forest and waste lands comprised in this notification has not been enquired and recorded as laid down in sec 29 of the Indian Forest Act 1927, but as the State Government thinks that such enquiry and recording will occupy such length of time as in the mean time to endanger the rights of the government and as the enquiry and record–of–rights will hereafter be made, this notification is issued subject to all existing rights of individuals or communities’.This happened in the area where communities were already in possessionof lands. Despite the power of the CTA, the Indian Forest Act (IFA)1927 was applied to acquire lands without settling the claims. This fraud70
20. 80. has been committed by Government of India in all the states wherehundreds of thousands of hectares of land with the community and gramsabha and other common purposes were illegally transferred to the forestdepartment after independence.The similar process took place in Himachal Pradesh (HP). All governmentlands are forest land in HP after the new state came into existence in1971. People of the state enjoyed rights from these forests well recordedin Wajib–ul–urz, which is a document of record of rights in Urdu thatexisted before the British period. This record of rights mentions the rightssuch as timber for house construction, grazing rights, timber for makingagricultural implements, grass for thatched roof, fodder, fuel–wood, loppingtrees for cattle, Chirgoza and Kail dry leaves for bedding of cattle, woodfor ceremonies, dry wood for dead etc. These rights are known as‘Bartandari Rights’ in the local language.In the 1927 settlement, 24 rights were recorded according to the IFA.Over the years these rights have been transformed into concessions.While entering into the twenty–first century, all these concessions wereeliminated too. The landless and other poor communities who dependedon forest and commons were termed as ‘encroachers’ in independentIndia. The Government of HP states that the record of rights has alreadybeen compiled since 1921, and rights have already been settled underthe IFA. The state authorities say that the HP Land Revenue Act is alsoapplicable. Chapter IV of the HP Land Revenue Act envisages that ifthere is any change in the record of rights, there is a detailed procedurefor making new entries, variations, alterations, additions in the recordof rights. Thus there is a complete code, statutory enactment and rulesand regulations pertaining to these rights especially in three tribal districtson HP. The record of rights i.e. individual and community which wereearlier recorded in Wazib–ul–arj were finally reduced in the shape ofForest Settlement Report.The Timber Distribution Rights (TDR) that people enjoyed from thecommons, was taken over by the forest department who controlled theTDR of the villages. The TDR policy made by the Government of HP 71
21. 81. on April 2010 has been widely criticised by the forest dwellingcommunities. They have refused to accept the new TDR rules that havebeen formed under the colonial IFA, that is against the spirit and usufructrights of the people, and despite the FRA being in existence since 2006and the rules notified in December 2007.Despite the FRA that strongly advocates community rights, the Act hasnot been implemented in non scheduled areas. The land that belongs tocommunity is being diverted to big multinational companies and mega hydroprojects without the requisite forest and environmental clearance. Thecement factory in Majathal sanctuary in Mandi District, Renuka Damin Sirmour District and hydropower projects in Kinnaur District, to namea few, are proposed to be halted by the various committee reports dueto their non viability.Similarly, in Uttarakhand (previously Uttar Pradesh Hills) 65% of the totalland is forest and in the hilly region it is 84%. In the hilly regions, afterhistoric struggles, two types of forest management were being practicedsince the British Raj. Van Panchayats in British Garhwal areas used tomanage the forest adjacent to the villages which would provide fuel, fodderand other NTFPs for daily use. Van Panchayats were under the revenuedepartment and not under the forest department. Over the years, variousamendments were done in the Van Panchayats rules and they weregradually taken over by the forest department. They became virtuallynon–functional except in some areas where women have taken someinitiatives. For the interior forest there used to be Village Reserve Forest(VRF), managed by the communities which would provide otherrequirements. But in 1962 the forest department took control of theseVRFs and made it reserve forests through a government order withoutany consultation with the communities or with the legislators. The areaacquired from VRF in three districts (Pauri Garhwal, Rudraprayag andChamoli) was 3.75 lakh hectare and only 50,000 hectares were left forVan Panchayats. This had a very adverse impact on the communitiessince large scale commercialisation of forest produces and commercialplantation was started. The famous Chipko movement started in the 1970sin the tribal areas of Nanda Devi to stop commercialisation of forests.The Van Panchayat rules were never converted into an Act despite a72
22. 82. strong movement by local residents. These rules still do not cover thereserve forests and national parks. Both the forest department and theGovernment of Uttarakhand oppose the implementation of FRA in the hillyregion saying that the Act is not needed since Uttarakhand has VanPanchayat regulation, which is not even an Act and under the domain ofthe forest department.In the name of scientific forestry the forest department in its ten yearworking plan included the commons and treated them as ‘forest land’,hence encroaching on public land since 1947. On the basis of the workingplan, the forest department since then has been victimising the tribal andother poor sections who were already owners and dependent on theselands for centuries. The forest department also generated revenue fromthese lands included in working plans by the senior forest officials. Adetailed study in Madhya Pradesh by Anil Garg reveals that the landsnotified in the working plan under section 4(1) of IFA were treated asforest land without completing the procedure laid down from section 5to 19 in IFA since 1960. Private lands were also not spared and werenotified under section 4(1), without any land acquisition process and withoutpaying any compensation to the tribals in forest areas.Another injustice done by the forest department was that, in theRaiyatwari villages, the lands notified under gair khata (unrecorded land)and non forest land comprising of commons were not only notified asprotected forest but were also taken over by the forest department toinclude in the working plan by notifying those under section 4(1) andcontinued to generate revenue, logging and to produce false data of ‘forestland’ in its records, when in reality these were actually revenue land.The forest under Zamindari villages and Malguzari villages were notifiedas protected forest land under section 29 of IFA, but the non forest landunder these systems (that were not transferred to revenue department)were also notified under section 4(1) of IFA and gazette notification wasdone. These lands were also included in working plan and the forestdepartment took over its management without following the legal process.In 1996 the declaration of ‘orange area’ by the forest department didanother fraud on commons by appropriating around 9.8 million hectares 73
23. 83. of people’s land. The notification of orange area comprised of alreadynotified reserve forest, land notified under section 4(1), renewal of landunder 27 and 34(a) of IFA. All were notified as orange area, includedin the working plan and false data were reproduced by the forestdepartment in working plan. These lands have been identified as therevenue land by the legislative assembly and the order to transfer all theselands back to the revenue department has been issued. Yet the processhas not been started till date.In Madhya Pradesh, all lands for common purposes were acquired undersection 29 of IFA and were notified as protected forests that extinguishedthe rights of the forest dwelling people. The record of rights were fullydocumented in the land record Wajib–ul–arz, called nistar patrak in MadhyaPradesh. In all such lands of the villages were acquired under section 4(1)of IFA, all rights recorded in the nistar patrak were extinguished. Suchfraud has been done in other states also by the forest department, inconnivance with the revenue department, to expand its territory.Subverting the constitution in SikkimThe case of sixth schedule area is no different. Before the merger ofSikkim to India in 1975, the land holdings were divided into two categories.One was the land belonging to the Chogiyal state and other was individualland holdings. Individual land holdings were less compared to the landbelonging to the forest. The reserve forest were brought under IFA afterthe merger by a presidential notification under 371(f)(n). It is pertinentto note here that these lands were not surveyed and by a simplenotification entire 80% of dense and cold dessert was transferred to forestdepartment without any records of the land. Sikkim has never had anyrecord system for land. The revenue records are still the same as thosemaintained during the King’s rule. The records do not even have a columnto record the area of the forests.According to IFA it is essential to complete the land settlement proceduredetailed from sections 4 to 20, IFA. But no such process took place andin fact no rights (community rights, rights of the pastoralist communityor any other stakeholder) were settled. No settlement officer wasappointed and no demarcation of the land has been done so far. Duringthe Chogiyal’s rule also the community rights of the tribal and other74
24. 84. population were not recorded. So these records are totally oral and notrecorded in writing anywhere. The chief secretary of the state hasmaintained that there has to be a settlement of the forest land betweenthe Chogiyal estate and the GoI. No such settlement has been done sofar. The common land is around 80% of the total land of which 40%is the cold dessert stretching across the Himalayan Kanchanjunga ranges.Yet in various parts of the state various sanctuaries and national parkshave been created where the rights of the people have been curtailed.They enjoyed certain rights such as collection of fuel wood, NTFP, herbs,fruits and vegetables, passages and other grazing rights and pastures fornomadic tribes during the Chogiyal regime. These rights have beenrestricted and many of the nomadic grazers have been evicted from theirtraditional seasonal makeshift houses. This was admitted by a senior officialof the east district in a private conversation.The state was under the rule of the Crown till Sikkim merged with Indiain 1975. The land and forest history of the state is very interesting. Itis still governed by its own customary laws rather than laws framed bythe Crown. Around 84% of the land is under the control of the forestdepartment. All land management and forest management took place duringChogiyal regime. In 1909 the forest were declared as reserve forest bythe Chogiyal regime and were vested with creation of the forestdepartment by a Crown order. In all zones of Sikkim, Kazi and Thekedarswere the landlords and had many forests under their control. In 1945landlordism was abolished and the lands that were under the privateownership and occupied by the tribes and other inhabitants were regularisedby the notification of the Crown and the rest of the forest areas werevested with the forest department by a notification.During the Chogiyal regime three types of forests were recognised: thereserve forest, khasmal forest (in between villages to meet dailyrequirement of the village) and gocharan land (for grazing of the cattleof villagers). There were some private forests which were under thecontrol of monasteries were known as Monastic Forests. Only reserveforests were under the control of the forest department. 75
25. 85. The first cadastral survey took place in 1952. Prior to that there wasno survey done of the total land of the state. It was during that timeland titles were given to the people. The second survey was started in1978 and completed in 1983. The irregularities in the previous surveywere rectified in this survey and all have land. There is no landless inthe state but there is no ceiling of land also. The holdings are continuedaccording to the occupation of the land during the King’s rule. The forestdepartment argues that the community rights are not required to berecorded as the communities already enjoy certain rights without anyrestrictions. Moreover all these rights are being enjoyed from gaucharanand khasmal lands. Instead, the forest department is advocating joint forestmanagement and other charity and welfare schemes to the communitiesrather than implementing FRA in its true spirit. It was quite evident thatthe forest department is more afraid of loosing control of vast forest landsin the state and feels that FRA is not applicable in Sikkim as there areno forest dwellers.Another crucial issue of conflict between the communities and the forestdepartment is on the ownership of Minor Forest Produce (MFP). Whilemore than 60% of forest revenue comes from MFP, a large majority offorest dwellers are dependent on various items of MFP for their daily needsand also for livelihood support. No forest law has quantified the list ofproduce specifically and the forest department arbitrarily used to decidewhich one was MFP and which one is not. Bamboo and cane areconsidered as timber and not as MFPs. Interestingly, in FRA the itemsof MFPs are specifically mentioned which includes bamboo, cane and tenduleaves. Both PESA and FRA has ensured ownership rights on MFP ascommunity rights. But the forest department is not keen to loose theownership of MFP since it is a profit making business for the departmentand its staff. MFPs are being managed for commercial purposes by stateforest corporations and by state sponsored marketing federations.As late as November 2010, this is what Down To Earth has to say aboutthe position of the forest department: The MFP economy is fragile but supports close to 275 million people in rural India, according a World Bank estimate. These people comprise the poorest, including 54 million tribals.76
26. 86. Jharkhand has 90,000 collectors of lac. Agriculture takes care of their food while MFP is the main source of cash income. The Planning Commission has put the annual trade of MFP at Rs 50,000 crore, but MoEF claims the trade is worth less at Rs 5,000 crore. Very little of this money goes to forest communities. Take bamboo. It has about 1,500 documented uses. But communities do not have access to bamboo. Reason: the forest department treats it as timber; therefore, it cannot be felled. Madhya Pradesh, Chhattisgarh, Odisha, Andhra Pradesh and Maharashtra, which are among the worst Naxalite– affected states, account for 47% of the total area under bamboo cultivation. The forest departments of these states together earn up to Rs 82 crore a year from bamboo. Despite FRA, which says bamboo is MFP, government, not people, continues to be the sole owner of the produce. A Supreme Court verdict of 2002 and arguments that bamboo is a grass, not tree, have not changed the forest department’s thinking.1Other government departments like railways, irrigation and the public worksdepartment have also appropriated huge tracts of land in the name ofnational interest. The Indian Railways has a land bank of 133,000 hectaresof land according to the statement of the Minister for Railways inparliament. Besides this there is a huge amount of land in possessionof the Department of Railways on both sides of the 63,000 km longrailway tracks. All these lands have been appropriated from the villagecommon land and forest land.DisputesThis issue of forest land is the most critical dispute inside the forest areasbetween people and the state. It is notable that in areas like Jharkhand,the forest department extended its control over land, forests and resourcesin new forest areas in the recent post–independence past.After independence, non implementation of the constitutional provisionsinside the forest areas has totally destroyed the community’s relationshipwith the forest and with the land. All across the country, disputes arosebetween the village and the forest department, village and revenuedepartment and the forest and revenue departments. This conflict started 77
27. 87. right from the colonial times. The crisis has deepened in such a way thatthe entire forest belt of India is under turmoil where forest people andtribals are being treated as anti–national and as enemies of the forest.There are primarily three kinds of disputes.• The revenue lands that were spared after Zamindari abolition were vested with the forest department and were termed as ‘forest land’. All the rights enjoyed by the people in these lands were extinguished by the forest department after independence.• Both the forest and revenue departments have been doing separate actions in their respective land records relating to the same land (both common and private) for the last 50 years. As a result, the spirit of land reform in the country has been completely defeated.• After independence serious disputes arose countrywide between the forest department and the village, revenue department and the village and the forest department and the revenue department.DisplacementDisplacement is the most visible effect of the encroachment of publicspace by the state and the private companies. There has been direct andindirect displacement due to loss of livelihood. All these displacementsare made in the name of development projects, which actually havepromoted accumulation of capital both by the state and by the privatecompanies. The types of projects which have caused major displacements,often involuntary, are• Dams for irrigation, hydro energy and drinking water that create lakes on previously inhabited areas.• Transportation corridors, railways, highways, airports, transmission lines, irrigation canals.• New ports and towns.• Urban infrastructure.• New mines particularly open mines.• Major industrial estates, Special Economic Zones.• Forest reserves and national parks.• Big farm houses.78
28. 88. The major cause of displacement, in intensity and extent, is due to damsand reservoirs which affects about 40 million people—62% of the totaldisplaced. According to D Bandopadhaya there is no official databaseof persons displaced and affected by these ‘development’ processes. Buta study conducted by Dr Walter Fernandes2 shows that approximately60 million persons were forcibly evicted from their land, livelihood andhabitat from 1947 to 2004. It involved 25 million hectares of land, includingseven million hectares of forests and six million hectares of commons.Thus around 12 million hectares of farmland were lost to developmentprojects. The social impact is horrendous. While the tribals constitute8.08% of the country’s population (Census of India 2001) they are 40%of the displaced/affected persons.Conflict between the state and subalternsIf it was the ‘Raj’ then, it is the ‘nation state’ now which is constantlyimpinging into the territory of human dignity by seizing the lives andlivelihoods of the forest dwellers. There is ruthless invasion of the naturalresources by the state, state sponsored corporations and privatecorporations—both national and multinational. It is very crucial to notethat the concept of the ‘Modern Indian State’ was born and startedgrowing in the colonial era and was highly influenced by the Raj. A newclass, educated and trained by the then rulers to become future rulers,was grown to protect the landed and financial interests against thesubaltern groups who became a real threat to the Raj by the mid–nineteenth century. A series of revolts by the indigenous groups whichstarted in the eighteenth century against the colonial domination over naturalresources forced the colonial rulers to take legal and political steps to:a) Make certain rules and regulations to control the social process.b) Create an intermediary class who would function as a buffer between the Raj and the revolting groups.c) Enact some progressive laws on social and economic issues.In this process, the idea of ‘mainstream’ was promoted and two major‘nationalist’ parties were formed—the Indian National Congress in 1885and Indian Muslim League at the dawn of the twentieth century.Incidentally, both these political parties demanded economic concessionsfrom the colonial rulers and not political freedom. With the support of 79
29. 89. these parties the Indian merchant class, in collaboration with the colonialpower, entered the industrialisation process, which was initiated by theBritish companies. The Indian bourgeoisie became partners of thesecompanies in looting the natural resources—mining, forests and water.The inherent economic and political interest in this process was to oppressthe indigenous groups who were dependent on these resources and onthe land. Such plunder of resources and oppression of indigenous groupscontinued after the transfer of political power from the Raj to Indian rulers.This was continued in the name of ‘development’ and many new forceslike progressive intelligentsia, industrial working class and technicians inthe name of ‘nation building’ were drawn into this. Indigenous groupsremained isolated and more commons were lost.In the era of capitalist globalisation, liberalisation and privatisation, thesituation has become more critical as the trinity of international financialinstitutions, (the World Bank, International Monetary Fund, AsianDevelopment Bank etc), World Trade Organisation and multinationals havetaken policymakers in their grip to gain control of these resources. TheKyoto Convention on Climate Change has become a new tool for thenorthern countries and corporations to gain free access over large naturalresources in developing countries. In the neo–colonial era, global capitalis applying a uniform policy for all the countries unlike the past wherethey had been pursuing policy separately for each colonised nation.Steps towards establishing a capital regime even in forestry have not beenaccepted by the communities. There is a history of opposition andresistance to all this and Adivasis across regions have braved it all. Theprotests have not been merely a loud protest but a series of revolutionarymovements and had defining results, which started as early as theeighteenth century and continued till the twentieth century. In India, theserevolutionary movements started from Jharkhand and spread up to SouthCentral and Western India. The central issue in all these movements wasindependence from the colonial rule. In essence it was absolute sovereignrights over the natural resources, which had been the source and symbolof social and cultural heritage. So the communities were involved totallyin these struggles in their entirety.80
30. 90. Resolving the conflictIn this context, the struggle for a secure livelihood and protection ofresources have not remained a simple process. It is inevitably linked withthe right to work, food, education, health and social security. Thereforethe challenges before the movements are to develop an inclusiveunderstanding of this key issue in building up long term and short termstrategies collectively. In the given context, old forms of struggles needradical changes to face the aggression of powerful capital and its allies.New alliances and new forms of struggles have to be built up which canensure community ownership of the resources, collectivism, democraticspace and leadership of all the deprived sections in the organisationalprocess. There is a need to promote alternative mechanisms that reversethe present trend and revalue land and its products so as to ensure anegalitarian society—and a new world order.It is heartening to note that such a process has already being startedby common and disempowered people in different regions in India andin other parts of South Asia—from north to south and from north–eastto north–west. The struggle to live with dignity is essentially a struggleto ‘reclaim the lost physical and political space’. This is also a strugglebetween the subalterns and the elitist Indian state. Indian societies areon the threshold of a radical transformation—from the captivity of eminentdomain to independent and sovereign societies, which would lead to theformation of a true egalitarian nation state. Intellectual and technicalworkers need to look at this transformation process objectively, so thatthey can find their appropriate and relevant role in this. Ironically, themajority of this section have till now remained within the state premiseand in its development paradigm rather than seeing the changing processfrom the people’s perspective. They need to look forward towards theemerging situation, and creatively engage with the new world being created.Endnotes1 Down to Earth, 15 November 2010, page 35. http://www.downtoearth.org.in/node/21892 Fernandes, Walter. 2008. “Sixty Years of Development–Induced Displacement in India: Impacts and the Search for Alternatives,” in Hari Mohan Mathus (ed). India : Social Development Report 2008. New Delhi. Council for Social Development and Oxford University Press, pp. 89–102. 81
31. 91. Common resources, community management Common resources, community management and tribal customary laws in Northeast India Walter Fernandes, Gita Bharali and Melvil Pereira1O ne can identify three main community resources in Northeast India. The first of them is the material resource of land, forests and water sources. Linked to them is the community–basedcustomary law. The third is the identity that these together provide tothe tribal communities. All of them are linked to the commons that areoften referred to as Common Property Resources (CPRs). The tangibleand intangible benefits they provide are important sources of livelihoodto rural households in general and to the tribal communities in particular.They are more important in the Northeast India than in mainland Indiabecause of its hilly terrain inhabited by some hundreds of tribes. So allthree of them can be included among the commons.This chapter is an attempt to understand the role the commons play inpeople’s livelihood in the Northeast and the implications of modern inputson these resources and on the communities depending on them. Thatrequires a search for an alternative because the Northeastern economyis agrarian. 47.4% of its people call themselves cultivators and 11.41%are agricultural labourers. But because of the neglect of the secondarysector 70 to 75% of the workforce of the region depends on the primarysector against 66% in India as a whole. More than 20% depend on thetertiary sector. That shows the importance of the commons.The commons in India and in the NortheastThe common resources that provide both tangible and intangible livelihoodto their dependants are often called CPRs. They include land, forests,water sources, panchayat and wasteland, rivers, ponds, watersheds, rivuletsand other community assets used for cultivation, grazing, non timber forest
32. 92. produce (NTFP) and the rest of people’s sustenance. To those dependenton it, the commons give benefits such as staple food from jhum (shifting)or other forms of cultivation, NTFP like edible fruits, leaves and vegetables,small timber and medicinal herbs (Shyhendra 2002: 3291). Most includeamong them only the natural resources like land, forests and watersources. Others include the sustenance of all the subalterns such as marinefisheries (Menon and Vadivelu 2006).The CPRs are thus defined by their ownership while the commons arebased more on their use than ownership. Apart from common lands thatare prominent in the CPRs the commons include also resources that belongto individuals but are managed by the community tradition. Basic to thecommons is collective management but not necessarily open access(Nongkynrih 2009: 16–17). Thus, the central purpose of the commonsis people’s sustenance that includes their culture, economy, social systemsand identity. It refers to all resources, whether individually owned ordepending on co–ownership on which a community sustains itself. Theirco–ownership is conferred by some type of membership of the communityor group such as a village or a town.That is true of the CPRs too. But the commons are defined by theirmanagement, not co–ownership which is basic to the CPRs. The commonsmay be owned by individuals or families or clans or the whole villagebut they are managed in common for the sustenance of the community.That is where tribal customary laws enter the picture. Most tribes havecustomary laws and rules for resource management that includes theirprotection and benefit–sharing. They also combine individual with communityownership. Specific to the commons is the fact that even individually ownedresources are governed according to the community–based customarylaw to ensure their sustainable management. They apply whether theresources are owned by the community or individual families (Fernandes,Pereira and Khatso 2007: 29–38).Commons in the NortheastBecause of its complex classification of land the meaning of the CPRsand commons differs in the Northeast from that in mainland India. Each84
33. 93. state and even each community has its own classification. J. B. Ganguly(1978) mentions three main categories. Land owned by the:a) Village collectively.b) Chief who distributes it among individual families.c) Individual families.The first two categories are common and the third is private accordingto the present formal law but even that changes from region to region.The non–scheduled areas of Assam, for example, have three types ofland ownership—patta (individual), Aksonia (temporary) patta and non–patta or khas land that can be called common. A patta is permanent,eksonia patta is usually for one year and khas land is considered stateproperty. In the sixth schedule areas2 the village headman plays a roleunder the District Autonomous Council (DAC). That is supposed to bein accordance with their customary law. In reality, the land is under thedirect control of the DAC. The DAC defines the power of the chiefand the meaning of the commons according to the formal law, not thecustomary law. It may even contradict the customary law.Because it considers commons as state property, the state treats theirinhabitants as encroachers who deserve to be evicted though it was theirhabitat for centuries before the colonial individual–based land laws wereenacted. For example, the study on development–induced displacementin Assam 1947–2000 showed that, according to official records, the statehad used 3.9 lakh acres during these 53 years and had displaced 4.2 lakhpersons from them. The study showed that the reality was not less than14.1 lakh acres that displaced 19.1 lakh persons (Fernandes and Bharali2006: 78 & 108). Since the inhabitants of the common lands were treatedas encroachers, they were not even counted among the displaced whentheir land was taken over.It is not merely the law but also the population and their customary lawsthat introduce diversity in the region. Arunachal Pradesh, Meghalaya,Mizoram and Nagaland are tribal majority states. The tribes are a minorityin the remaining states. Nagaland and Mizoram run civil affairs accordingto their customary law under Articles 371A and 371G respectively ofthe Constitution of India. Though Arunachal Pradesh is nearly two thirds 85
34. 94. tribal, it is not covered either by the customary law or by the fifth orsixth schedule. Manipur too does not have either schedule but land inits tribal majority hill areas is managed according to administrative rulesthat have evolved over three decades. Tripura did not have either scheduletill the 1990s when a tribal majority district was formed under the sixthschedule as part of a peace accord (Borooah 2002).Commons and the customary lawGiven above is the legal reality of the formal law. The social reality ofthe customary law may not be in accordance with it. An interface ofthe two systems can introduce new dimensions such as class formationand stronger patriarchy in their societies. One cannot conclude from itthat all the customary laws are just or equally community–based. Theychange from tribe to tribe but have some commonalities. For example,most tribes manage all land collectively even when it is individually owned.Common land is (Nongkynrih 2009: 18–19):a) Village forests,b) Streams, rivulets, and rivers (often shared with a neighbouring village),c) Village settlement area.d) Village ponds, roads, footpaths, and burial ground.e) Public open ground.Individual families own the rest but manage it according to the community–based customary law.Thus, the concept of the commons is considerably different from thatof the CPRs. It includes only resources owned in common while commonsrefers to management, not ownership. The customary law is central toit. Land and other resources come under it whether they are owned byan individual, a family, a clan or a village, as long as they are managedaccording to the community–based customary law. The law itself changesfrom tribe to tribe but in all of them it determines the utilisation of thevillage land and forests, ensures that the common resources within a villageare accessible to the whole community and that no individual gainsexclusive property rights over them. The customary law also demarcatesthe territory and boundary of each village (Shimray 2006: 36). Most86
35. 95. importantly, the customary law confers an identity on the community.Because of it both the customary laws and the identity it confers canbe included in the commons. That will be discussed in a later section.Customary laws of different tribes have both commonalities anddifferences. For example, most Naga tribes of Manipur combined individualownership with clan or village control. The village council or clan thathad control over land permitted no alienation. All operations relating toland and forest come under the jurisdiction of the village chief and councilwho are bound by the customary laws of the community (Singh and Devi1991: 55–56). The Tangkhul Nagas, for example, treat community landas an important component but ensure that individually owned land is notalienated. An individual is free to use community land for cultivation butafter the season the plot reverts to the village automatically. If an individualmakes permanent improvements on a plot of land for agricultural purposes,like converting it into terrace fields, eventually it comes to be treatedas individual land (Shimray 2009: 248–249).On the other side, traditionally the Kuki–Chin tribes of Manipur did nothave individual ownership. The chief owned all land and each family paidhim a tax for the land used for jhum cultivation. The tax varied from3 to 5 tins of paddy.3 The right enjoyed by the chief was neither proprietarynor hereditary. His office rotated from clan to clan. Some differencesexisted even within the Kuki–Chin family. For example, the Thadou chiefhad absolute control over all land. He owned it but could allocate it forjhum cultivation annually only in consultation with the Semang Pachangor council of ministers. It ensured that each family got an equal share.But in no tribe of this family could the individual or family claim ownershipover the plots allotted to them. If a family was unhappy with the chiefthey had to leave the village (Rajkhowa 1986: 96).The land of most Naga tribes is classified broadly into primary or agriculturaland reserved. The reserved land is broadly divided into three categories(Tamuly 1985: 96–98):a) Village land, which is kept apart for public purposes. A portion of it is forests. This land is accessible only to the residents of the village under the control of the village council. 87
36. 96. b) Clan or khel land is used only by the members of a khel.c) Individual land is what has been inherited or acquired. Such land is privately owned and the owners can lease it out.For example, traditionally the Ao of Nagaland had four types of land—what belonged to the village as a whole, to the clan, to an individual familyand group or morung land. The village land that was managed by thevillage authority through the chief consisted of the house sites, woodlandsand forests. Some large forest areas of the village were also split intoindividual holdings for cultivation and other purposes. The users had topay a rent to the chief. The clan usually vested the jhum land with itsmembers in perpetuity. Individual land was in the name of the head ofthe family. Group land was allotted to a specific group like boys stayingin the morung (dormitory) to collect firewood from it. Also those whowere ostracised from the community were allotted some group land fortheir sustenance (Das and Nath 1979: 125–126).In the Mizo tradition, land was under the village council. The village chiefcontrolled and allocated it to the families for jhum with the help of expertscalled ramhual. In return the family paid him fathang or a kind of tributein baskets of paddy (Das 1990: 6). Among the Angami the individualfamily has absolute right over terraced land used for rice cultivation butforest land is owned by clans and village (D’Souza 2001: 30).In Arunachal Pradesh too, the ownership pattern changed from tribe totribe. The Nyishi demarcated the commons clearly by including uncultivatedforests, rivers and natural resources in it. These resources were underthe control of the village council and were used by the whole village.Among the Galo too the commons owned by the village included landused for residential purposes like houses (nam) and granaries (nasu)(Nongkynrih 2009: 23). The Adi chief allotted land to individual householdsonly for cultivation and in theory its ownership was vested in thecommunity (Agarwal 1991: 44). The Aka tradition lacked the very conceptof individual ownership. Each family cultivated as much land as it neededin the jhum season after which it reverted to the community. A familycould use wetlands on the river banks for settled agriculture but theycontinued to belong to the village (Fernandes and Bharali 2002: 22–23).88
37. 97. The Khasi of Meghalaya had three broad categories of land: (i) Raid(community land); (ii) Rykynti (privately owned land); and (iii) Clan land.Raid land belonged to the community and was within its jurisdiction. Itwas divided among the permanent residents of the village into residentialland where houses and common facilities were built and land for economicpurposes, mainly agriculture. The right to use it was based on themembership of the village. The darbar (village council) owned andmanaged it. The headman did not have the authority to permit non–Khasisto use it. Each clan owned its own land. Forest land was divided intosacred groves, village community forest, protected and individual forest.People could not use the sacred groves. The darbar controlled thecommunity forest. People could collect leaves from the protected forestfor domestic use but not for sale. The owner could use the individualforest (Dutta 2002: 59). Ri Bhoi district in the Khasi hills was uniquebecause almost all its land was communally owned. It was managed bythe chief representing a cluster of villages. Traditionally, among the Garoof Meghalaya clan land (akhing) was under the control of the nokma.4The homestead plots were owned not by individuals but by the community(Kar 1982: 29). In the tradition of the Jaintias of Meghalaya commonland was owned by the syiem5 (Nongkynrih 2009: 28).The Tripura tribes present a different picture. Changes in their land lawsbegan already under the monarchy in the colonial age. The king beganto allot land to the people through the collectors appointed by him. Thecollectors took the help of a Choudhury from each village to distributethe jhum land. The village retained its customary right to select the jhumplot but had to get the Choudhury’s approval after selecting it. Land wasclassified into Jhum, Nal, Lunga, Chera, Bhiti and Bastu. Jhum landbelonged to the community and consisted of a house site, forest and jhumplots. It was managed by the village authority under the control of theChoudhury. Nal land situated in the plains or river banks with high fertilitywas individually owned by the villagers with permanent heritable rightsbut not of alienation. Lunga land lying between two hills was used forpermanent cultivation. It was allotted to the people with an annual taxwhich differed from tribe to tribe. Chora land situated on both sides ofthe river was owned by the villagers. Bhiti and Bastu land was permanent 89
38. 98. and heritable but not transferable (Roy 1986: 59–62). Thus, traditionally,tribal villages had some form of community ownership recognised by theKing. The village chief enjoyed customary rights over land.Customary laws and the commonsThe preceding sections show the centrality of the customary law to thecommons. They were defined not by ownership but by the community–based management systems. The attack that came on them from theformal law was not merely on land but also on the customary law thatensured sustainable natural resource management. Any visitor travellingthe hills of Northeast India would experience it in the impressive landscapeand the thick green cover that drapes it. Despite the patches of baldinghills resulting from the formal system, there is dense forest cover in muchof the region. As early as 1914 the British administrator L. W. Shakespear(1914: 218–219) captured the rich greenery of the Angami region ofNagaland when he wrote: To a stranger suddenly arriving in the Angami country nothing strikes him with greater surprise and admiration than the beautiful terraced cultivation that meets the eye everywhere, on gentle slopes, sides and bottom of the valley, in fact, wherever the land can be utilised in this way. In preparation, upkeep, and irrigation, the greatest care is taken far in excess of anything seen in the northwest Himalayas. The appearance of the countryside for miles south of Kohima, for instance, is such as to suggest the handiwork and labour of a far higher order of people than these wild Nagas. These terraced fields are often bordered with dwarf alder bushes, are carefully irrigated by an elaborate system of channels bringing water down from mountain streams, and luxuriant crops of rice are grown on them. To pass through the valley where stand the two powerful villages of Khonoma and Mezoma during late October when the grain are ripe is indeed a delight for the eye— a veritable golden valley.Shakespear’s fascinating description of the Angami region held good forall the hills of the Northeast though it might not be true today of someparts in its totality. Many changes that have occurred during the lastcentury will be discussed later. Despite this, there are areas in NortheastIndia which have managed to keep their forests and hills safe from the90
39. 99. market and commercial forces. It is the customary law that has playedan important role in preserving the forests and natural resources fromthe clutches of economic interests. The communities which have remainedclose to their age–old norms and practices of regulating lands, forestsand other natural resources have succeeded in protecting their commons.That makes the customary law central to tribal identity in the region.That is reason enough to treat the customary law and the identity linkedto it as integral to the vocabulary of the commons. That also distinguishesthe commons from the CPRs. The latter denotes only community propertyresources and gives importance to ownership. Commons, on the contrary,include all the resources managed under the community tradition or thecustomary law. Emphasis in it is on effective sustainable managementand protection. This next section will examine such claims by lookingat various situations in which customary laws play this role.Significance of tribal customary lawsIndigenous peoples the world over use the customary law for reasonsas varied as natural resource management and protection and as aconflict resolution mechanism. In the recent past it has been used primarilyas a means of asserting the ethnic identity of indigenous communitiesthat are threatened by the forces of globalisation. They treat the customarylaw as a useful tool to protect the common resources, promote harmonyin the community and maximise ethnic identity claims. Specific to it isits role as a social organisation mechanism. This role of the customarylaw is crucial for maintaining harmony in the community (HumanDevelopment Report 2004: 59). The preceding section has shown thatit plays a significant role in determining the ownership of land andregulating the use of forests. It articulates the rules of access, extractionand use of the natural resources ensuring their sustainable management.The customary law is thus the repository of the values and ideals of atribe and is central to its identity. The role it plays in managing andconserving forests is the main reason why the customary law isincreasingly being studied by social scientists (Ostrom 1990; D’Souza2001; Orebech 2005). 91
40. 100. Most societies have their own customary laws. But the major differenceof the tribal communities is that they are anchored in a specific placeunlike the caste groups that live with all other castes. Because of it thetribes develop appropriate rules and regulations to suit that particularenvironment. Their social and political organisation is shaped round themanagement of their natural resources. Thus most customary lawsoriginated in response to the needs of a particular group of people settledin a specific place at a given point of history. That makes them locationspecific, people specific and time specific (Krishnan 2004: 48) becausemost of them came into existence through the interaction of people wholived in a specific environment and a set of natural resources. So theycontain guidelines for their ownership, use and protection.Management and regulation of their forest and other natural resourcebased sustenance was in fact the primary need of the indigenouscommunities. They could not afford to harvest these resources as theindustrial agents do. To industrial agents these resources are only a rawmaterial and a source of profit so they do not think of their renewal (Guhaand Gadgil 1996: 34–35). To the communities depending on them suchwanton destruction would have meant starvation because of lack of foodand other materials that they used obtained from these resources.Preservation for posterity and inter–generational equity are basic to thenorms of the customary law that guides the management of theseresources. Basic to the creation of such rules was interpersonal interactionand collective decision making mechanisms (Bjarup 2005: 151). In theserules and regulations, the customary laws kept the needs of the communityabove those of individuals.Some criticise customary laws as being rigid and static or as getting caughtup in age–old beliefs and traditions and not allowing the community todevelop. This criticism can be levelled against all the formal or statutorylaws. But one cannot ignore the fact that the customary laws originatedin response to a specific need in a particular context. So they are subjectto change according to the requirements of their practitioners (Sheleff1999: 84–88). Referring to the Canadian Amerindians, Borrows (2002:27) argues that ‘First Nations legal traditions are strong and dynamicand can be interpreted flexibly to deal with the real issues in contemporary92

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• Vocabulary of Commons - Part 2