NLSIR On Line#6: A Conversation with Arpitha Kodiveri on Governing Forests

NLSIR’s Varenya Singh in conversation with Dr. Arpitha Kodiveri* on her book, “Governing Forests,” which critiques India's exclusionary forest laws, exposing how colonial legacies and caste discrimination marginalize Adivasi and Dalit communities, while highlighting their creative legal resistance for co-governance and climate justice.

Note: Only minor edits have been made for readability.

Q. What are the main themes explored in the book, and what is the central argument it presents? How does the book examine the relationship between state, power, citizenship, and forest governance in India?

Very often, when we think of Adivasi communities and forest-dwelling communities, there is a notion of marginalisation that is automatically applied to these communities. It is either economic marginalisation, political marginalisation or social marginalisation. But what we have consistently failed to talk about is how the state and the law have produced varieties of marginalisation on the ground. The state in these forested areas is present as a primary steward and retains control over conservation decisions. But simultaneously, the state is also present in what I call the ‘extractive avatar’ as it, at times, unilaterally makes the decisions around deforestation. Therefore, when you have one authority, not to treat the state as a black box- what I'm referring to here specifically is the forest department, the wildlife bureaucracy, the revenue bureaucracy, the district collector and other local and national bureaucratic authorities. When they have absolute authority over decision-making on both of those fronts, the communities who have been historically living and depending on these lands and contributed to the conservation of these areas, have been left out by the law, and the state has benefited from that because it does not have to democratize decisions on deforestation or conservation.

This is one way to theorise the state-citizenship relationship: that you have an authoritarian environmental governance architecture, concentrating power, and you have citizens who have historically been left out or cast aside. But it would be an injustice to describe the history of forest governance without looking at the resistance as well. Communities have often resisted, whether it has been against the colonial state or the post-colonial state, because the post-colonial Indian state adopted the colonial forest law architecture with minor changes. But then we had Jaipal Singh, when the Constituent Assembly was debating what we now call ‘scheduled areas’ and what to do with these areas. They did create a shared sovereignty frame. Therein, one witnesses a palpable nature of the legal architecture which proclaimed that in scheduled areas, communities will have a say, whether it be on decisions of development or towards a grey area in the law, but to some extent, around conservation. However, this was, unfortunately, again, restricted to scheduled areas.

So, while there is a significant overlap between forest areas and scheduled areas, it is not adequate. And forest laws continued to echo a similar message- you have no say in conservation.

But that changed around 1988, when we had the National Forest Policy in place, which underscored the need to look at people's participation in decision-making. Additionally, historically in Madras, there always existed a co-stewardship model. There were some pockets of village forests where that was happening, but it was not formally institutionalised. It was always seen that the communities were seen to be taking away from conservation objectives rather than contributing to them. We saw significant changes in the Wildlife Protection Act amendments, and eventually, it was the Forest Rights Act and, to some extent, the Panchayat Extension of Scheduled Areas Act. Thus, the way we envision the state-citizenship relationship changed after 1991, especially with economic liberalisation and its appetite for deforestation and centralisation. What tends to happen, even with the Forest Conservation Act, we centralise authority, both on the fronts of conservation and deforestation. Post 1996, with the passing of the Panchayat Extension of Scheduled Areas Act, the problem that propped up was the explicit mention that the states have to pass the rules to operationalise it. And that didn't happen. Thus, with the Forest Rights Act, 2006 there was a real legislative rebellious arm to forest governance, and it largely came out of the Ministry of Tribal Affairs and not from the Ministry of Environment and Forests. These developments changed the relationship between the state and citizens, where it said that citizens also have a say in these processes and democratised a lot of the decision-making. But there are many challenges with this idea. We have not gotten rid of an authoritarian environmental governance architecture; thus, suddenly we have the piquing conflict with the Forest Rights Act, and who gets to decide how those legal conflicts get resolved remains with the bureaucracy.

In one of the chapters of my book, I look at how the state is either in its police avatar or an extractive avatar or simply as an avatar of just being absent when it comes to development in these areas. For example, one of the interviewees said, ‘Why doesn't the state care about us?’. We want a deliberative or caring relationship with the state. And we wish to see if it is possible to repair that relationship. However, while it sounds naive to some people, it is very, very practical because it is politically untenable to govern forest areas without communities.

Thus, the themes and the central argument of the book are around those questions. In its entirety, it ranges from how citizenship-led activism through legal avenues reshapes the way the state is present or absent in forest areas. And how does that reshape such a relationship?

The second part of the book focuses on how communities, through their legal imagination and through their ability to build a sort of jurisprudence from below, have been the key architects of the Forest Rights Act, and have been the key thinkers, legal thinkers, around how to resolve these conflicts. And thus, how do we perceive these developments, as we know that these forests are coming under the pressure of being carbon sinks, given the climate crisis? Thus, in an expansive turn, I believe that the central argument that book is trying to place is a particular one – is how do we listen to legal conversations and thinkers from ‘below’- those who are directly impacted by these conflicts and to pragmatically push for a jurisprudence of care and repair for the future.

Q. Do you view the law as an instrument of ongoing coloniality? And how do you see the continuity of colonial power structures within the law governing forest rights and the treatment of marginalised communities?

Such a great question. I believe that the law continues to remain a colonial legal instrument in some forest areas. And I say this specifically because the Indian Forest Act and the manner the Wildlife Protection Act has been crafted do not take away from that colonial imperative to centralise forest governance in these areas and not democratise it. Would I call the Forest Rights Act as a decolonial legal movement? That might be a difficult question to answer, but it illustrates that there have been moments and fissures that have challenged this colonial legal architecture. So, it would be disingenuous to say that the law is only a colonial instrument in these areas, but I will point out that the law is a site of struggle. We have the colonial legal instrument clashing with other ideas of justice, democratisation and the post-colonial legal imagination around this saying, we also have rights, right? We have the rights-based arguments emerging, post the 1970s. The forest law architecture has to confront itself in the mirror and gander at its colonial past with an urgent need to shed it. The FRA forces it to do that, but not entirely. I believe that the FRA is radical, but not radical enough.

Q. In the book, you mention that you began to document “the nuances of your relationship between being an environmental lawyer and a client” as the motivation to write the book. How do you reconcile your identities as a scholar and a practitioner during your research process? And do these dual roles shape or influence the conclusions that you draw?

Absolutely. I entered these spaces and worlds as a lawyer. I was tasked with going into forest areas and assisting communities to implement the Forest Rights Act, and to see the kind of legal strategies we could collectively develop to protect their rights over land and water. When one goes into the field as a lawyer, there is a certain amount of functionality and contribution that you bring with you to these communities. It takes a considerable amount of time to build trust, and for one to be able to build that kind of relationship where you can work with them. One thing to note is that community-based environmental lawyering is a very different model of lawyering because one cannot just go in there saying this is the most effective legal strategy that will resolve your problems. However, it requires you to embed yourself in their legal realities and understand what you need to prioritise and how.

It is a very time-consuming process. Having gone into this space through the lens of being a lawyer, what I struggled with was the bigger questions. The questions of the relationship between the state and citizens, between how the law operates in ways that not only marginalise these communities but also take away their basic needs. For example, cows were arrested just because they were grazing in areas where they didn't have the right to graze! So, how do you deal with a situation like that? I felt like being a lawyer was insufficient. It was reactive, but it wasn't reflective. I wasn't able to get to the deeper questions. That is when I decided that I would start exploring a career in legal research and scholarship. But they're very uneasy in the way they coexist because the scholarly voice is more ... take a step back... don't do anything with the situation... let's analyse and observe and theorise... hands off. Whereas the lawyer’s voice accentuates the idea that ... hey, you can't just come in there and just extract and leave… You need to be able to do something as well.

I like that tension, though, because then it keeps my scholarly voice accountable to the communities I am working with, saying - "okay…what is writing a book or writing this article going to do?" Not to say that scholarship for scholarship's sake is a bad idea, but somehow, when you enter this field as an activist, it forces you to ask those questions. I think the lawyer in me slows down if the scholarly voice asks the big questions. Then you start to believe okay, this might be an effective legal strategy now, but am I reinforcing a power dynamic that I shouldn't be?

Q. Can you walk us through the ideation process? How do you locate the macro debate of the Global North and South in the micro-individualised forest-dwelling communities?

When I started to work with these communities, I understood that I must also position myself in the conversation of how I entered the space. I was working for a non-profit, identified as an international NGO called Natural Justice. They were based in South Africa and were just setting up their offices in India. I was recruited as a lawyer to work with this group. It was a collective of environmental lawyers who work with communities and see where they can use the law as a source of empowerment. And so, the very location of the organisation and my position of looking at the law as a spectrum…. Not just as the very local layer of the law, but also understanding the nature of working with an internationally active organisation. So, how does the international legal reality then connect to this very local reality? This was a range that I was already having to be comfortable with, and further had to see how I could harness the potential for the communities I was working with. But that clashed with the latter because for them, the idea of using international law was seen as a very last-ditch effort. When everything domestically did not render any plausible solution, they were convinced that we could use international law. They also felt like it was a colonial instrument. I received a lot of criticism when I would suggest should we think about doing something before a forum such as the UN. They would always say that these are big forces in the global north, and we are unaware of what that would mean. But in certain projects, because of the way global capital flows work — Whether it was the project where communities were opposing the integrated steel plant that POSCO had propose, or in the case of Vedanta…they were multinational corporations, so by default, the scale of those layers of legality was forced on them. You had a South Korean corporation coming to Jagatsinghpur, Orissa, which is a coastal forested area where the FRA is trying to be implemented. In this instance, we were forced to see what kind of legal protection the FRA would provide. Is there something that can be done internationally? The movement began to think strategically, considering that since the South Korean corporation was receiving funding from numerous international sources, they might be able to file complaints with the OECD National Contact Point. This led to a more creative approach to legal strategy.

How you negotiate the relationship between the global north and the global south is complex. You're both part of an international NGO and receiving valid criticism from communities. At the same time, these communities are cleverly and strategically figuring out how to deal with the situation.

It might sound crass, but I believe we should explore all the legal options available to us. We should use them strategically instead of rejecting international law entirely. Despite its colonial history, international law can still be useful, even if it doesn't always represent the visions of justice coming from the communities. Not many people talk about this, but it was the report that the UK OECD National Contact Point drafted after the complaint was filed against Vedanta and the decision of the Norwegian Sovereign Wealth Fund Ethics Committee to divest.  They came out with very stringent reports in this case. The UK National Contact Point looked at local legal violations too. They said Vedanta Resources Pvt Ltd has not adhered to the Forest Rights Act. It has not complied with a lot of environmental regulations. It was a very seething report that affected its shareholder investment in the UK as well. Similarly, the Norwegian Sovereign Wealth Fund divested and took its money away from Vedanta, and that had a huge impact. It interestingly came to light through interviews with members of the Ethics Committee that it may have indirectly informed the Supreme Court outcome through international headlines and an international gaze on a very local conflict. We discuss the Vedanta case as a landmark judgment, but it went through multiple iterations of legal failures until it got here. It took this complex, almost octopus-like legal strategy to culminate in that outcome. So that's how I've made sense of it. I've always looked at what can protect the communities and the environment best, and which layer of law can do that. And I'm scrappy in certain ways. I will use it if it's going to serve this particular community. It is very pragmatic, but if I want to theorise this pragmatic lawyering, it also dents those international legal frameworks and domestic legal frameworks through a certain vision of rights and justice, right? So, if the domestic law is not adhering to what it has promised…And you use international law to do what scholars call a “boomerang”, where you have a progressive decision made internationally and then domestically creates a certain ripple effect…Why not?

There must be questions of sovereignty as well.

Yes, multiple. I think especially because in India, that has been the main reason for the rejection of international legal influence on domestic decision making and rightly so. I'm not saying that we have to always look to international law to save the day. But it pierces the relationship between the state and citizens, which is so rigid. There is no room to manoeuvre there. Sometimes you have to go to another layer of law to challenge the sovereignty from above... and this is one way to do that.

Q. What role did language play in your research process, particularly concerning the communities' comfort with vernacular? How did their experience of navigating the exclusionary language of law to assert their rights influence your findings? Is language a gatekeeper or a facilitator in the process?

I believe it is a mixture of both. In terms of working with these communities, because they speak different languages, sometimes it's even Kui - an Adivasi language - I have operated through the generosity of friends who have translated for me. It definitely changes the dynamics in terms of intimacy, for instance, the ability to say something in the presence of a lawyer, and added to that, a lawyer who is very unfamiliar with their community and culture. The only way to dilute that distance is to spend as much time as possible with the communities. Trust, therefore, is at the core of it. Language, as well, is something that can be overcome to an extent, but I think it's the element of trust that needs more effort and time.

I could see the difference because I did fieldwork on the Soliga community in Karnataka.  Although I didn't do as much fieldwork with them, it was easier because I knew the language. There were so many things that I could understand from the everydayness of their lives that I  believe, with communities in other instances, it consumed a lot more time.

In terms of the language of the law, it has been exclusionary in many cases. This is because the language of the law not only works on specific categories, it works on ideas of evidence, it works on ideas of processes and interaction with the state, which I mentioned have been very authoritarian in forest areas.

The way the law has appeared in their lives is either through a chalan for a wildlife offence or a random survey where they find out that their area is now a land bank.  It often means either alienation from land or some kind of adverse impact from the law. It is not usually an empowering story. But with the Forest Rights Act, that fact did change. For example, a friend of mine who has worked in Andhra Pradesh mentioned a community case, where if they were questioned on their right to graze, they would carry a copy of the Forest Rights Act. They would just show it. Thus, in a certain sense, the law started to become an empowering force wielded by the citizens.

Therefore, not just the language of the law, but legal ideas and the ability to make a legal argument, at that microscale, became empowering. These kinds of micro-legal victories and small ones are huge. The language of the law that takes away, but also recognises.

Q. What assumptions from theoretical literature or other sources did you bring into the project that were subsequently challenged or altered during or after your fieldwork? Would there be any singular anecdote from your fieldwork that fundamentally challenged your perspective? 

One of the theoretical assumptions was that the project focused on the provision of free prior and informed consent, which came through the Niyamgiri judgment. I was curious about it since it seemed like such a fantastic legal development. This happened in 2016, and I started my PhD in 2017. My theoretical assumption was that if this legal provision exists, it would result in more direct and deliberative democracy. That is a very empowering reading of this legal provision. A lot of literature supports this idea as well.

But when I went to do my fieldwork, two things broke it apart. The first insight that the field provided was in the way the consent process is procedural. What one received was an event, as a mere part of a procedure of the forest clearance requirements, which was that if we provide forest clearance to company X, then the gram Saba is to give a resolution or an NOC. It was unclear what shape and form it would take. The communities felt that one must come to them before the MOU is signed, before you even make this decision, that a company can come and claim their land. This is not self-determination or negotiated sovereignty. It's a checkbox and followed by dispossession. That was an eye-opener. Consent is nothing but proceduralizing assertions of sovereignty for Adivasi communities.

The second thing that I noticed was an entire informal legal interpretive community that exists in these areas…which in my chapter I call the ‘dalals’. They exist as the in-betweeners. Sometimes they are from the community, in other instances they come from a neighbouring village or nearby cities. Some of them even have a Master’s in social work. They get appointed by the mining and other companies trying to acquire land in these areas as a land acquisition officer or part of the CSR team. They are often clever ethnographers. As a tactic, they often start attending local functions. They make themselves seen and heard in the local community. They start to negotiate with individual families, offering solutions, for instance … maybe a son is sick and they will take care of the hospital bills…but in exchange, will you be able to sell your land? Or give your consent?

And thus Dalals would come in and smoothly divide communities up or find ways in which they would get individual contracts negotiated for acquisition with specific families. And so then you have a situation where communities are confused. They don't know what to do because there isn't a shared vision of what should happen anymore. Thus, the idea of deliberative democracy that I originally had or direct democracy, is contracted out and negotiated through such dalals or agents.

As an instance, I remember it was when Kalinganagar had a huge protest, and four young Adivasis were killed, even more than that...I think about 7-12. There was a strange building before the Kalinganagar steel plant where the hands of those Adivasis who died in that protest are museumized. This makes it a very violent and difficult terrain in which these negotiations are happening. And so the person I interviewed got a call at midnight saying that during a protest, adivasi community members were harmed- he was asked to come and resolve the political tension here. As he was brought in and he managed to conduct negotiations with the community leaders. So they know what they're doing as they have operated in these spaces before. The question is, how does the consent provision survive in this political environment? It's difficult. I think another question emanating from that would be that the law is not just about access to power. Some things are falling through the cracks of the law itself.

I think one has to go back to one of the earliest legal doctrines, which has allowed this kind of architecture to emerge, which is the severance of the surface and the subterranean. Whatever is subterranean belongs to the state. So they're able to sever the surface from the subterranean and by doing so, the politics of the surface is rendered largely irrelevant. Once the subterranean in the form of a valuable resource exists, then it becomes the determining force. In some ways, the law has crafted or designed even the social, political and informal, right? Then this conveys the idea that the state has to acquire this land and make it available to the companies. The state has already entered into an MOU with this company, and eventually, land acquisition will begin. Parallel to this, informal actors are being sent in to speed up this process. Thereafter, the law starts to shape up in what I'm hoping to work on in my second book, that is, this idea of an ‘extractive legality’. It starts to create legal interpretations that promote the extraction of the subterranean, wherein the law makes allowances for such practices.

To be more specific, if I were to go to a coal-bearing area, in Sundargarh, which, according to the Coal-bearing Areas Act, is categorised as a coal-bearing area. The state can thus compulsorily acquire this land. But at the same time, it is also a scheduled area and a forested area. How, then, do these multiple legal categories interact?

Q. The book incorporates a temporal element progressing from an analysis of forest laws and independent India to a discussion of the Modi government's weakening of forest laws. Was this inclusion intentional, or did it emerge as a logical progression to complete the analysis?

I started to look at Forest laws very meticulously around 2006 to 2008, when the Forest Rights Act was passed. As a young law student, I felt nestled in a large and emerging movement for environmental law, because the way I had seen environmental law function was that there were pockets in which citizens were active and participating. This was the first time that I saw that citizens were able to arrive at a new legal framework and operationalise it. Thus, my starting point for understanding forest laws itself was with the coming of age of the FRA. This honed my curiosity and analytical drive around forest governance. I was also very curious to see the potential of this legal framework. In 2014, the Modi government came into power, and one of the first things the Modi government did was it established the TSR Subramanian Committee report. This move with the TSR Subramanian Committee effectively aimed at completely re-engineering environmental laws. This remained the first target. The second thing that happened was the IB report, whereby several environmental organisations lost their FCRAS. Additionally, the Ford Foundation came under attack, and I found myself at odds with how I was trying to do my legal practice. I went to the public hearing where the TSR Subramanian committee was looking to drastically amend the environmental laws. The language that I was exposed to there, as well as in the news articles that were being written about it, was that environmental laws are slow. It was lethargic and heavily bureaucratized. We need to simplify, streamline and look towards efficiency. The idea of ‘ease of doing business’ came into that framework. It was challenging to not talk about it because from 2014, all the way to the completion of my PhD 2021, the forest laws had gone under severe attacks, whether it was the amendments to the Forest Conservation Act, to the passing of the Compensatory Afforestation Act. Additionally, the extent of literally taking away the consent provision was also central to my research question. I categorized this deregulation of environmental laws to encapsulate that this was not an isolated Indian story. We have seen this happen in Brazil under Bolsonaro, we are seeing this happen in the United States under Trump as well. There is a coming together of the centralization of power and authority with a certain genre of deregulation, whether you want to categorize it as authoritarian or not. I believe that the constitutional law scholars are working on that. However, from my perspective, it was a complete unravelling, or a better way to look at it is a very deliberate shift from a protective and preventative leaning of environmental law to a compensatory one, which essentially conveyed the need to look at it with a post-harm legal frame. We will try and streamline clearances, which are a preventative and protective framework, making it a lot easier. and let businesses thrive; we will look at how to redress the harm data, whether it was the Compensatory Afforestation Act or the operationalization of new kinds of permission in the government architecture. My critical bent of the idea of deregulation is the need to be amping up the preventative and protective framework and moving away from the compensatory approach only because we are engulfed in a climate crisis.

Q. It was recently mentioned in a blog post that there is a ‘genre-bending’ of climate litigation in India. How do you situate that within the reasoning of the M. K. Ranjitsinh judgment?

I believe that climate litigation as a typology or category of litigation is an idea that emerged in the United States with the Juliana case and then became a trend or a cascading set of cases in Europe. On the other hand, India has had a rich history of environmental jurisprudence and environmental litigation without this categorization; whether it is biodiversity litigation, rights litigation, or pollution, it has broadly come under the umbrella of environmental litigation. Thus, even with the M.K. Ranjitsinh case, if one scrutinises it, it is actually about protecting the Great Indian bustard. If one were to look at the Global North literature around these typologies, we would proclaim that this is biodiversity litigation. But because it also involved energy transition, it encompassed an element of climate justice and questions around climate change, tacked onto it. Thus, I view it as a perfect example showing the global south legal struggle and environmental realities. It is not that we can silo biodiversity concerns against energy transition, against the rights of farmers who live in those areas. It all comes together. The M.K. Ranjitsinh case does one thing well, and I  am certain people have criticisms of that judgment because it artificially pits Biodiversity against Development. It does do that, but I believe that for me, what is exciting about it is that it says that we have the right to live in an environment sort of free from adverse climate change. Thus, it is a case involving biodiversity, but transcends to the rights of communities. With such a cluster of questions, it does engender a large genre-bending work for future cases.

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*Arpitha Kodiveri is an environmental law and justice scholar and assistant professor of political science at Vassar College. Her work focuses on the role of climate litigation in redressing claims of loss and damage due to climate change. She has previously worked as an environmental lawyer supporting Adivasi and forest-dwelling communities in India.