Astha Saxena*
Introduction
Adivasi and other forest-dwelling communities have had distinctive relationships with land and forests. These relationships have several aspects that are beyond my strength to enlist in this short essay. But two of them — land and access to forests — are integral to this piece. This essay is dedicated to understanding the conceptual position of Minor Forest Produce (‘MFP’) in law. Constituting of a variety of forest products like fodder, tendu patta, mahua, tamarind, a herbs, medicines — the list of produces that the forest offers is expansive. Usually defined as any forest produce other than timber, Non-Timber Forest Produces or MFPs are constitutive of both adivasi economy and culture. MFP is an integral part of the adivasi life and an expression of adivasi socio-political value systems. MFPs function as elements that make up the network of relationships between communities and forests. While land and systems of property are essential aspects of this relationship, the collection and processing of MFP plays a crucial role in materialising adivasi identity. In contrast with the neoliberal vision, traditional proprietary relationships developed around MFP are based on access and inclusion rather than exclusion and deprivation. However, the law conceptualises MFPs differently and has historically created frameworks to exclude communities from accessing forests.
In this essay, I will unfold some of the characteristics of MFP and analyse how the law has failed to encompass its complexity. This inquiry is contextualised by the fact that two significant legislations: the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 (the ‘FRA’) and the Panchayats (Extension to Scheduled Areas) Act 1996 (the ‘PESA’) have determined MFP as capable of being owned, bestowing its ownership to forest communities. Yet, these statutes are isolated. Several other legislations adopt an adversarial approach in conceptualising the relationship and engagement of communities with forests. The limited purpose of this essay is to understand this conflict of law and concept.
It is difficult to contain MFP in theoretical categories confined by the framework of property because the collection and use of MFP symbolises both livelihood and freedom movement for a forest-dweller. MFP is collected and processed when communities have access to forests and are free to move about in that landscape in addition to their individual and community titles in the land. The recognition of individual forest titles for these communities has been a continuing struggle. But with the enactment of the FRA, there have been increased efforts to recognise titles in land. Some estimates state that the potential land that can come under Community Forest Rights has only been realised by three percent.
MFP poses an additional problem to this already adverse situation. As a right, MFP contradicts the basic facet of private property as it cannot be confined in space. A property right involves the freedom to own a discernible bounded space in land and is framed in terms of maintaining the dignity of the individual and demarcating their private space. An individual forest right, for example, is discernible by maps and measurements. A bounded piece of land in which a person has property was considered sufficient for their livelihood. However, a right to MFP encompasses access to the forest, landscape, and the right to exercise traditional knowledge in engaging with the forest. It involves a freedom of movement for the communities and the freedom to operationalise their systems of property, even if they contradict popular understanding of economy and transactions. It cannot be bounded to a small piece of land. This is at the heart of contradiction of concept.
The rights of communities to access MFP are either criminalised or heavily restricted by the Indian legal system. The legal system regulates every facet of MFPs, especially the ones that are economically viable — from definition to processes of conservation — without encompassing its cross-disciplinary and historical complexity. The Indian Forest Act 1927 and the Wildlife Protection Act 1972, along with state forest legislations (like those of Odisha, Madhya Pradesh, Chhattisgarh, Jharkhand, Maharashtra, among others), have created a whole range of forest offences for any person who seeks to access forest produce without the requisite permissions.
To this effect, this essay is divided in three parts: Part I will unfold the meaning of ownership of MFP as envisaged by the FRA and PESA. MFP is unlike any other form of property; it is unencumbered by the dominant paradigm of property, in which ownership has a specific meaning. But both the FRA and PESA have conceptualised a legal space for MFP which keeps communities at the centre. I believe that it is necessary for the legal community to understand what this means. Part II will examine the ways in which law continues to exercise control over MFP through other legislations and rules. It will situate MFP within the web of forest and other land laws which seldom have clear definitions for ownership or nature of property. Due to limitation of space, this section will present one illustration of the control exercised by the state — that is, control exercised through definition of MFP. Finally, Part III will identify fundamental difficulties with the property paradigm as it is incorporated in our legal system to envision a commodity like MFP. In a system where resources are finite, the dominant paradigm of property prescribes an exclusive system of distribution, based on licensing procedures and deprivation of non-owners.[1] The dominant ideologies of property, especially private property, have dismissed the inescapable network of mutuality between minor and other forest produces, their cultural significance and the forest ecosystems within which they occur — laying bare MFPs to be subjected to both legal processes of monopolisation, licensing and sale and to inequitable market forces. This atomises MFPs into specific products and services, and converts holistic local authority into a series of rights, concessions, and privileges. The concluding section will argue that while our dominant understanding of property and forest law may work for properties at an individuated level, they tend to be reductive, inequitable, and dissociative in governing resources like MFP which have both individual and common connotations.
Ownership of MFP in FRA and PESA
When the FRA came into operation in 2006, it redefined the forest landscape and provided a framework for the recognition and vesting of rights of forest-dwelling communities over forest land. It also made a statutory recognition of historical injustices that have been perpetrated on such communities, and sought to undo those injustices. The legislation shifted the paradigm of property — overturning postcolonial control of the state over forests and instead recognising rights of forest dwelling communities to occupy, use and conserve the forests.[2] Among a range of rights that have been conceptualised in the statute, Section 3(1)(c) iterates that the “right of ownership, access to collect, use and dispose of minor forest produce which has been traditionally collected within or outside village boundaries” will be recognised and vested in Scheduled Tribes and Other Traditional Forest Dwelling communities as part of the bundle of forest rights.
The meaning of ownership, thereby, has been enunciated in the provision itself. Ownership of MFP is not factored by domination over a particular piece of land or the labour of agriculture. Rather, it is concerned with naturally growing resources and the traditional knowledge of conservation and collection of those resources. Further, it contains the right to access and collect those resources, use, and dispose them as per the socio-economic needs of an individual forest-dweller, and her entire community. This right to ownership is also in conjunction with the right to access biodiversity and the traditional knowledge that is related to it. These rights reside within the larger framework of individual and community forest rights envisaged under the Act.[3] The right to ownership of MFP therefore, is not only different than how ownership is construed in private property, but also invokes the larger framework of democratising forest governance processes: Collection, procurement, and disposal of MFP is part of forest governance and the FRA bestows the ownership and responsibility on forest communities, specifically Scheduled Tribes and Other Traditional Forest Dwellers.
This statutory right of disposal of MFP under FRA was clarified by the Amendment Rules issued in 2012. The Rules stated that the disposal of MFP will include the right to sell, as well as individual or collective processing, storage, value addition, and transportation within and outside forest area through appropriate means of transport by gatherers or cooperatives for their livelihood.[4]
The PESA had made this recognition in 1996 itself. Under section 4(m)(ii) of PESA, the state must ensure that the ownership of MFP is endowed to the relevant Gram Sabha.[5] This provision occurs in the context of ensuring that the Gram Sabha and Panchayat at the appropriate levels can function as institutions of self-governance. Thereby, under PESA the ownership of MFP is an integral element for enabling democratic processes in areas governed by Schedule V of the Constitution.
The meaning of ownership in these statutes and rules defy the theoretical understanding of ownership within a private property regime. It constitutes a vital dimension of traditional modes of engagement with the forest which is not merely land and resources but also ancestral domain. Ownership of MFP is constructed within a framework of forest commons, wherein the governance of forests and of forest-communities is the responsibility of those communities themselves. The state becomes a facilitator in this regime, and not a trustee of public resources. Ownership in this context is not a bundle of rights which is factored by exclusion of non-owners, but a collective right to use, dispose and conserve resources which substantiate culture and livelihood of forest-dwelling communities. Both the provisions of FRA and PESA are supported by non-obstante clauses in the respective legislations.[6] But the surrounding forest laws do not share the same ideology or clarity of concept.
Control and Regulation by Other Laws
There are at least four different forms of control exercised by the state over MFP: normative control over definitions, control over access, control over the market of MFP, and restrictions on value addition and transportation of the produce. I cannot comprehensively describe them all in this limited space, as the laws are diverse and differ from state to state. What I present here are three points illustrative of the trend of control exercised through the definition of MFP; It is necessary that each of these forms of control are analysed to uncover the magnitude and depth of state control woven into law.
Forest-related and property laws in India seldom provide clear definitions or categorisations for land and resources. Conservation and management of resources function primarily through modes of control exercised by the state. The forest, for example, is not encompassed by the distinction between private and public property. Indeed, rights and claims made on forest land go beyond the foundational categories of private and public. In the context of MFP as well, there is no conceptual clarity in definition. The term ‘minor’ symbolises the history of the resource. Colonial forest laws created an arbitrary distinction between timber and non-timber forest produces (‘NTFP’). At the time of industrial development, the colonial government deemed timber as the most important forest resource and everything else, was demarcated as minor, or less important.[7] The law also leaves space for the state to manipulate control over forest produces, depending on changing market value.
For tribals and forest dwelling communities, the distinction between MFP, NTFP and timber is irrelevant.[8] Forest produce of different kinds is used for different purposes and in harmony with the ecosystem. This ensures that it is available plentifully in the future and to other users as well. The law on the other hand, is based on the colonial fixation for commercial exploitation of forest produce, the most valuable of which at that time was timber. Thus, definitions of forest produce revolve around whether the produce is timber or not, resulting in false and stilted legal semantics.
This process of defining is the primary control that the state exercises over the resource. This form of control functions at two levels: first, the law retains power of definition of MFP to the state and second, once the definition is in place, it is also considered legitimate for the state to exercise monopoly over the sale and management of such resources. The Indian Forest Act of 1927 does not define MFP at all.[9] It creates a legal category of ‘forest produce’ over which the state has absolute control. Further, removal of forest produce attracts penal provisions under the Act and the state government is empowered to prohibit such removal from any forest.[10] Such an expansive definition and the power of the state to criminalise any removal of any resource that falls within the legal category creates a framework of control — in which the state is empowered to determine the rules of management. State forest legislations often complement this ideology of the Indian Forest Act.
In Odisha, for example, the state government is empowered to specify any forest produce as ‘specified forest produce.’[11]There are no principles, in theory or practice, which can guide the process of definition. In fact, these forest produces are not necessarily exclusive to forests, and may even be found outside the forest boundaries.[12] The law allows political considerations to define the resource and to define the nature and extent of control that the state may be willing to exercise over it. Once a forest produce is specified under the Act, the state assumes complete monopoly over its collection and distribution. In Madhya Pradesh and Andhra Pradesh as well, the category of ‘specified forest produce’ is statutorily created and the state government is empowered to make rules for its disposal.[13] In Bihar, state monopoly is created on the trade of kendu or tendu leaves and restrictions are placed on their purchase and transport.[14] Maharashtra also regulates public interest in the trade of MFP by creation of a state monopoly. Laws in all these states provide for appointment of an agent for the purposes of purchase of and trade on behalf of the government.[15]
These definitions and processes of monopolisations make it clear that the state government has created a huge statutory space over which it can exercise control at any time. It has retained a wide berth for the declaration of any kind of forest produce as a ‘specified’ or ‘nationalised’ forest produce, while at the same time restricting the actual number of such forest produce only to those it wishes to ‘specify.’ Thus, the law also reflects the tendency of the state to arrogate all powers to itself in the mainframe laws, and make concessions to other stake holders only by way of specific government orders, rules, and regulations, which in no way weaken the essential issue of final ownership and control.
Only the FRA provides a clear definition of MFP and thereby removes the arbitrary power that laws hitherto entrusted on the state to define and control.[16] The FRA also legally recognises traditional autonomous regulatory powers of local villages over MFP, and to this extent the state regulatory powers for access, collection, processing and trade are overridden. The role of the state has been reformed from being the one authority in control, to the facilitator for people who now control these resources.
There is a third aspect to this form of normative control over definition: the people who collect the MFP become ‘primary collectors,’ ‘gatherers’ or ‘licensed collectors’ in these legislations and not owners of MFP, as envisaged by the 2006 and 1996 Acts. Who can collect which MFP and in how much quantity, is completely controlled by the state through rules and notifications. Even if this conceptualisation of non-owners was to be conceded, gatherers of forest produce are not within the labour law framework, whether organised or unorganised. And so, within a legal framework which is not factored by FRA or PESA, collectors or MFP are neither owner or labourers. In complete derecognition of their basic rights, forest-dependent communities are merely envisaged as facilitators for the state and industries who rely on their labour to gather forest produce. In fact, in states like Odisha and Madhya Pradesh, the state government is considered as the grower of forest produce.[17] Behind this also is the presumption that collection of MFP by forest-dwellers will inevitably lead to over-exploitation. The dominant ideology conceives of a theoretical impossibility to avoid over-exploitation of resources in an open access regime and therefore, control of the state and allocation of clear and private property rights is considered mandatory.[18] And within this ideology, if collection of MFP is a question of culture, identity, and livelihood, then it must only be legitimately done for bonafide domestic use. The points of sale, purchase and value addition are also within different forms of control.[19]
Problems with the Property Framework
Our ideologies of property and law are reductive. They are restricted within the framework of sovereignty in which common access to resources is conceived as a political impossibility.[20] What the FRA, along with the PESA, does is to rebuild the property paradigm to expand its framework. This will require that the law overturns presumptions of exclusion and boundedness and reimagines how systems of property can be conceptualised by keeping people at the core of those systems. In this respect, ethical basis of existence of the state must be transformed. It can no longer reside solely in protection of private property and public trust of common resources.[21] So, when legislations, like the ones I discussed in the previous section, assume the power of control over resources to the state and establish procedures for regulations, it cannot be assumed that there is no rational basis for critiquing such exercise of power.
One layer of the problem is that our current legal framework is limited to a singular understanding of property. This regime envisages the state and people in legally defined relationships with respect to land and other resources.[22] This has serious implications for the commons.[23] In systematising the relationship between individuals and the state, property assumes a role in the marginalisation and exclusion of people; It extends the zone of individual power by excluding outside forces to protect that power. Therefore, exclusion is an integral component of private property[24] and has been observed to be part of colonisation processes, both creating and perpetuating propertyless-ness.[25] Such an idea of property necessarily fails to encompass the relationship of forest communities with their forests. Yet, the knowledge of traditional processes, biodiversity, and the produce which has been used by forest communities for centuries has been subjected to essentially the same form of appropriation.[26]
So, when the FRA bestows ownership of MFP on Scheduled Tribe and Other Traditional Forest Dwelling Communities, it is done with the purpose of overturning the legal regime of exclusion. The Act is overriding current laws to reinstate forest rights in Scheduled Tribes and Other Traditional Forest Dwelling Communities.[27] But what it is unable to do is to collate both ownership and control in forest communities. As per current laws, the ownership of MFP lies with the communities, but the control remains with the state. Section 13 of FRA has aided this conflict of concept. It states that the Act is in addition to, not in derogation of any other law in force.[28] Given the hold of the paradigm of property, this has stripped communities from realising the meaning of owning something like MFP.
Conclusion
The FRA requires that the role of both the state and the people is transformed: while people assume ownership and control of MFP, the state assumes its welfare title and must assist the people in realising rights to MFP to their full potential. An example of this shift was demonstrated by the Odisha government during the COVID-19 pandemic. The state government fixed Minimum Support Price for MFP and utilised existing networks of authorised ‘agents’ to purchase these MFPs. This move was integral to the survival of people during an economic breakdown. The state machinery was compelled to re-invent itself.
This is certainly not a simple task of reform, but one that must begin with reckoning the extent and depth of the paradigm of property, in addition to understanding what the reform is asking us to do. In the context of MFP, this will require that one identifies and unfolds every form of control, legal and otherwise, which is exercised by the state or any other agent. Part II has only indicated one such form. These forms of the control can no longer remain so under a democratic Constitution that recognises autonomy and self-governance of forest communities. They will have to be transformed to systems of support for the forest communities.
[1] Ugo Mattei, Alessandra Quarta, Filippo Valguarnera, and Ryan J. Fisher (eds), Property Meeting the Challenge of the Commons (Springer 2023).
[2] Madhu Sarin, ‘Undoing Historical Injustice: Reclaiming Citizenship Rights and Democratic Forest Governance through the Forest Rights Act’ in Sharachchandra Lele and Ajit Menon (eds), Democratizing Forest Governance in India (Oxford University Press 2014) 100.
[3] FRA 2006, s. 3(1)(a) and (b).
[4] Rule 2(d): “disposal of minor forest produce” under clause (c) of sub-section (1) of section 3 shall include right to sell as well as individual or collective processing, storage, value addition, transportation within and outside forest area through appropriate means of transport for use of such produce or sale by gatherers or their cooperatives or associations or federations for livelihood. The provision also provides a specific explanation for legitimate transfer of MFP when managed by the Gram Sabha.
[5] Section 4(m): “while endowing Panchayats in the Scheduled Areas with such powers and authority as may be necessary to enable them to function as institutions of self-government, a State Legislature shall ensure that the Panchayats at the appropriate level and the Gram Sabha are endowed specifically with-
...(ii) the ownership of minor forest produce;”
[6] Section 4(1) of the 2006 Act vests forest rights in forest communities and overrides anything contained in any other law. The ownership of MFP is an element of forest rights as per section 3 (1). Section 4 of PESA 1996 also overrides Part IX of the Constitution and states that the state cannot make any law in contravention of the features listed in the Act. And ownership of MFP is one of those features.
[7] Madhav Gadgil and Ramachandra Guha, This Fissured Land: An Ecological History of India (University of California Press 1993).
[8] Somnath Ghosal, ‘Are minor forest products truly ‘minor’ in forest fringe social life?’ (2013) 5(1) International Journal of Sociology and Anthropology 18.
[9] Section 2(f) of the Indian Forest Act 1927 defines “forest produce” which includes timber and other produces like Mahua and trees, leaves or any other parts of plants. This definition also includes wild animals, their parts and the minerals occurring in forests.
[10] Section 30(c) “prohibit, from a date fixed as aforesaid, the quarrying of stone, or the burning of lime or charcoal, or the collection or subjection to any manufacturing process, or removal of, any forest produce in any such forest, and the breaking up or clearing for cultivation, for building, for herding cattle or for any other purpose, of any land in any such forest.”
[11] The stated objective of Odisha Forest Produce (Control of Trade) Act 1981 is to provide for regulation and control in forest produce and to create mechanisms for state monopoly.
Section 2(i) defines specified forest produce: specified forest produce in relation to a specified area means the forest produce specified in the notification issued under Subsection (3) of Section 1 for such specified area;
[12] The legal definition of the term differs from its scientific explanation. The Supreme Court, in the case of T. N. Godavarman Thirumulpad v. Union of India and Ors. [2024] 1 S.C.R. 704 has given a very wide definition to forests. For a detailed analysis of the legal definition of forests please see Shomona Khanna, ‘Boundaries of Forest Land: The Godavarman Case and Beyond’ in Sharachchandra Lele and Ajit Menon (eds), Democratizing Forest Governance in India (Oxford University Press 2014) 225-260.
[13] MP Van Upaj (VyaparViniyaman) Adhiniyam, 1969 in section 2 (l): "specified forest produce" in relation to a specified area means the forest produce specified in notification under sub-section (3) of Section 1 for such specified area; and Andhra Pradesh Minor Forest Produce (Regulation of Trade) Act 1974;Section 2 (5) of Andhra Pradesh Minor Forest Produce (Regulation of Trade) Act 1974 defines any forest produce other than timber, trees, (excluding bamboos) and charcoal, specified in the Schedule as Minor Forest Produce; AP Scheduled Areas MFP (Regulation of Trade) Regulation, 1979.
[14] The Bihar Kendu Leaves (Control of Trade) Act, 1973 creates a state monopoly on the trade of kendu leaves and criminalises any contravention on the restrictions on purchase or transport of kendu leaves.
[15] For example: Section 4 of Bihar Kendu Leaves (Control of Trade) Act, 1973; Section 4 of Odisha Forest Produce (Control of Trade) Act 1981; Sections 4 and 5 of Andhra Pradesh Minor Forest Produce (Regulation of Trade) Act 1974.
[16] Section 2 (i): “minor forest produce" includes all non-timber forest produce of plant origin including bamboo, brush wood, stumps, cane, tussar, cocoons, honey, wax, lac, tendu or kendu leaves, medicinal plants and herbs, roots, tubers and the like.
[17] Section 2 (d): “Grower of forest produce means-
(i) in respecter forest produce grown on land owned by any person, the owner
of such land; and
(ii) in all other cases the State Government”
And Section 2 (f) of MP Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969.
[18] Garrett Hardin, ‘The Tragedy of the Commons’ (1968) 162(3859) Science 1243.
[19] For example, section 5 of MP Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969: Restriction on purchase of transport of specified forest produce.- (1) On the issue of a notification under sub-section (3) of Section 1 with respect to any area, no person other than,-
(a) the State Government;
(b) an officer of the State Government authorised in writing in that behalf; or
(c) an agent in respect of the unit in which the specified forest produce is grown or found;
shall purchase or transport such specified forest produce in such area.
Exact same provision exist in Section 5 of Andhra Pradesh Minor Forest Produce (Regulation of Trade) Act 1974.
[20] Karena Shaw, Indigeneity and Political Theory: Sovereignty and the Limits of the Political (1st edn, Routledge 2008) 39.
[21] Margaret Davies, Property: Meanings, Histories, Theories (1st edn, Routledge-Cavendish 2007) 96.
[22] Karena Shaw (n 21); Margaret J Radin Reinterpreting Property (University of Chicago Press 1993)
[23] Kristin Anker, ‘Plural Property’ in Nicole Graham, Margaret Davies, and Lee Godden (eds), The Routledge Handbook of Property Law and Society (Routledge 2023) 31-42.
[24] Martha Albertson Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ in Martha Albertson Fineman (ed) Transcending the Boundaries of Law: Generations of Feminism and Legal Theory (Routledge-Cavendish 2011); Kevin Gray, ‘Property in Thin Air’ (1991) 50(2) The Cambridge Law Journal 252; Thomas W. Merrill, ‘Property and the Right to Exclude’ (1998) 77 Nebraska Law Review 730, 741.
[25] Margaret Davies, Lee Godden, and Nicole Graham, ‘Situating Property Within Habitat: Reintegrating Place, People, and the Law’ (2021) 6 Journal of Law, Property, and Society 11.
[26] Nicole Graham, Lawscape: Property, Environment, Law (Routledge 2011); Brenna Bhandar, Colonial Lives of Property: Law, Land and Racial Regimes of Ownership (Duke University Press 2018).
[27] Section 4 (1): “Notwithstanding anything contained in any other law for the time being in force, and subject to the provisions of this Act, the Central Government hereby recognises and vests forest rights in…”.
[28] Section 13: “Save as otherwise provided in this Act and the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996, the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”
*Astha Saxena is a doctoral fellow at NALSAR University of Law, Hyderabad and a research consultant with Legal Resource Centre, Delhi. She is also the author of ‘Land Law in India’ Routledge, 2019. Her primary work lies in the field of land reforms. She is currently exploring the relevance of legislative paradigms towards the realization of socio-economic rights, especially in the area of land and disability jurisprudence.
Comments