Orans and The Ongoing Colonisation of Commons through Forest Law: A Socio-Legal Analysis of the Supreme Court’s order in T.N. Godavarman

Raghav Srivastava*

The recent order (‘the Order’) of the Supreme Court in Interlocutory Application No. 41723 of 2022 (‘the Application’), in the ongoing T.N. Godavarman Thirumulpad v. Union of India [W.P. (Civil) No .202 of 1995], is on the face of it, a fairly standard and innocuous legal document. The 50-page speaking order was issued on December 18, 2024 by a full bench, in response to an application filed by Aman Singh, the founder of Krishi Avam Paristhitiki Vikas Sansthan (KRAPAVIS). KRAPAVIS is an Alwar-based non-profit working with agro-pastoralist and rural communities in Rajasthan, to conserve ecological practices and spaces, and secure livelihoods.

The carefully drafted, duly-sectioned and equanimous discussion within this order, however, conceals issues of overwhelming social complexity, histories of invisibilisation, and continuing dispossessions of lands, livelihoods, kinships and social cultures. This piece attempts to bring together the various social, legal and political processes that come together in this Order, situate it in a historical context of dispossession of common lands of which it is shown to be a continuation and not a departure, and describe how state and corporate power form the ultimate focal points of the process of commons capture,

A Brief Historical Context Of The Conflict Over Orans

The present application was filed praying for the ‘identification, survey, and demarcation of sacred groves such as Orans, Dev-vans, Rundhs, etc. as ‘forest lands’ to be included under the purview of the FC Act [viz. The Forest (Conservation) Act, 1980], and additionally to declare the 100 Orans identified in the publication ‘Oran Atlas of Rajasthan’ as ‘forest lands’.’ (para 18) While the legal history of the issue leading up to this application has been assiduously recorded by the learned full bench in the Order, between paras 14-20, a brief history of the accompanying social and political context may be useful here.

Orans are, as is noted in the Order, sacred groves, conserved and managed by various communities across the state of Rajasthan. They are particularly important to agro-pastoral peoples - like the various castes of cattle herders of eastern Rajasthan, and the sheep and camel herders of western Rajasthan. Pastoralism, a typical and significant livelihood of arid regions across India, has historically been entangled and critically connected with forests. In pre-colonial contexts, forests or janglat in Rajasthan generally denoted open-canopy, multiple-use public lands - including orans. This is not to deny the centralisation and privatisation of proceeds from common grazing lands that existed pre-colonially. However, the productivity incentives were usually sufficient for these common property resources (CPRs) to be maintained as such back then, and not diverted to other uses.

Colonial schemes sought to extend economic expropriation to these lands through formalised categories that were also called forests, but which denoted something else altogether - a ‘reservation’ or ‘protection’ of such lands for primarily colonial metropolitan control and expropriation. Forests were thus not identified or classified in these colonial schema as much as reconstructed and reclassified, into administrative, centralised frameworks that have persisted into the present essentially unchanged. These schema are encoded in laws such as the Indian (Forest) Act, 1927 (IFA) and the many Rules issued thereunder, that extend the state forest departments’ control over timber and non-timber produce, livelihoods and industry on forest lands.

The entanglement of the destinies of pastoralists and forests is historically linked to the nomadic or semi-nomadic nature of many of these communities, especially the sheep and camel herders, who have historically traversed long distances to graze their animals. These journeys have followed rhythmic, ecologically sound and practical logics - in most cases, the seasonal availability of forage and browse. Many of the Raikas of western Rajasthan, for example, migrate to the forests of the Aravallis in southern Rajasthan during the monsoons, where there is better grazing for their sheep or camels. This grazing has acquired an opportunistic character over time, with the shrinking access to common grazing lands, through processes such as the notification of state forests under the Indian (Forest) Act, 1927, and - more recently - the notification of protected areas like tiger reserves under the Wild Life (Protection) Act, 1972 (WLPA), that are as a rule, policed and enclosed from graziers and their herds by forest departments.

The pre-independence nationalisation of forests and post-independence land reforms across India had a common feature: a bias towards more settled land usages such as agriculture, and administrative units like revenue villages. These pre-existing concepts were further reified and recast in modern colonial forms, lending themselves more easily to measurement, control and revenue collection for this and future versions of centralised government. What was lost in these enumerations was much of the life and production in India that has historically lived in the liminal spaces outside and in-between settled land uses - according to a recent credible estimate, over 50 per cent of India’s milk needs, and over 70 per cent of its meat demand, are met by mobile pastoralist or extensive production systems.

This fundamental bias translated into an (ongoing) erasure of the common pastoral usages of lands by mobile peoples, that have been in the process of gradual appropriation by both forest and revenue departments of the Indian state. What were referred to pre-colonially as forest, oran or janglat have been largely reclassified (or misclassified) as either reserved or protected forests, or revenue wastelands following the land reforms of 1955 in Rajasthan (and even private tenancy rights in some parts). This extension of legal control represented one part of the (continuing) foreclosure of the commons upon which pastoralist extensive production systems were historically based in Rajasthan, and other arid pastoral landscapes like the Deccan.

Modern Forest Conservation Through The Dispossession Of Commons

This foreclosure of the commons has been enabled by accompanying executive and legislative provisioning for their diversion and alienation - initially for the expansion of settled agriculture, and increasingly for transfers in favour of extractive commercial and industrial projects. The Forest (Conservation) Act, 1980 (FCA) was enacted prima facie as a policy measure for the conservation of forests: to provide a comprehensive process for scrutinising and sanctioning their diversion for non-forest uses. The amendments made to the FCA and its Rules in 2023, however, convey a different intention - as perceived by practitioners, activists and tribal communities alike.

Crucially, the 2023 FCA amendments exempt large areas from the application of the FCA - including ‘deemed forests’ viz. forested lands that are not classified as forests in state records. This categorisation was triggered by the Supreme Court while adjudicating the meaning of ‘forests’ in the same case of T.N. Godavarman Thirumulpad, in operationalising and extending the dictionary definition of forests to statutory forest and wildlife laws - which, in the absence of a legislated definition, continues to hold the field.

Another aspect of the FCA amendments of 2023 is the complete legislative erosion of the role of the Gram Sabha in the diversion of forest lands - over which the Forest Rights Act, 2006 (FRA) explicitly recognises (as opposed to the colonial-paternalistic ‘confers’) the historical rights of their traditional stewards viz. adivasi and forest-dwelling communities, including pastoralists. Through the FC (Amendment) Act, 2023 (‘2023 FCA Amendment’), which is presently the subject of constitutional review before the Supreme Court, the Gram Sabha’s consent, which was made mandatory for forest clearance through an amendment in 2017, has been totally removed from the language of the FCA. This de-decentralisation of decision-making eases the process of commons alienation and privatisation for central and state governments, which has been ongoing even prior to the 2023 FCA Amendment.

Sumer Singh Bhati, a resident of Sanwata village (Jaisalmer district), is a pastoralist, activist, conservationist and community leader actively engaging with the oran issue. According to Sumer Singh, the recent acceleration of corporatisation of these common lands has been systematic, political and heavily influenced by large corporate houses. It is interesting that the 2023 FCA Amendment came in the wake of a commons movement (oran bachao) led by Sumer Singh that had begun a few years prior, in the early 2020s. This movement had essentially sought to get - and succeeded in getting - over 10,000 hectares of orans across western Rajasthan registered as deemed forests, with the oran samitis as joint owners on record.

A little over a year later, the 2023 FCA Amendment essentially nullified the protection to these ‘deemed forest’ orans that had been fought for by their communities over the last years. Viewed alongside the default situations where orans are recorded as government wastelands, it becomes clear that the 2023 FCA Amendment arguably does only as much as to administratively divert the legal processes and line departments for an eventually simplified process of diversion of forested lands like orans (from the revenue to the forest department) - to the detriment of the biodiversity, food and nutritional security, livelihoods and social relationships that they underpin.

A Chronology And Analysis Of The Order

Before coming to the Order, a brief history of the case in which it was pronounced: the Supreme Court’s landmark order dated December 12, 1996 in the same continuing mandamus of T.N. Godavarman Thirumulpad,  gave a wide and purposive definition to ‘forest’ for the purposes of the FCA, expanding it beyond merely lands that were recorded as forests in government records to any lands that corresponded to the dictionary meaning of ‘forests’ (with some exceptions like private plantations). This implicitly acknowledged the politics and contradictions typical of land records in India, as well as the complex history of extending the aegis of the centralised state over common lands. Following this order of December 1996, states constituted expert committees to identify areas to be treated as forests as per the judicially expanded definition.

The Rajasthan state-level expert committee - the Kapoor Committee - submitted its report in 2004, in which it identified orans and other sacred groves as forests as per the Godavarman definition, and also identified forested areas under 5 colloquial wasteland categories for ‘deemed forest’ status - Gair mumkin pahar, Gair mumkin rada, Gair mumkin behed, Banjad beed, and Rundh.. The Rajasthan Forest Policy, 2010 reflected a recognition of the multidimensional importance of orans, and articulated a progressive policy intent for their mapping and management by their traditional communities.

This intent is glaringly absent from the pithy and ambiguous language in the new Rajasthan Forest Policy of 2023 - that tellingly changes the policy intent for oran management from community-led (para 5.10.3 of the 2010 policy) to community-consulted (para 6.5.11 of the 2023 policy). Not unrelatedly, the 2023 policy, at para 6.2.15, also contemplates ‘timely clearances’ under the FCA and the WLPA - a commitment that sits awkwardly within a policy statement for forest conservation. But the Rajasthan Forest Policy was not the only contradictory aspect of the state’s stance towards community forest rights that came out in the Order.

In the Order, the learned full bench spent 2 crucial paragraphs discussing the relevance of the CFR provisions and intent of the FRA, to the protection of traditional access of pastoralists and other forest dwellers to customary forest lands. Yet, it stopped short of extending these valuable observations re the FRA’s application and relevance to the present facts. Reference to community rights resurfaced at para 29, where the Hon’ble Court, noting the submissions of the amicus curiae, affirmed its own ruling that the National Forest Policy of 1988 (NFP) ‘has statutory flavour’, and provides inter alia for the ‘recognition of customary rights over the forest areas’. In the same paragraph, it also affirms the statutory flavour of the fortress-conservation-oriented National Wildlife Action Plan (NWAP), and herein perhaps lies the essence of the tension - of the balancing act that this Order represents.

The Hon’ble Court evidently sought here to strike a balance between a justice-oriented conservation approach embodied in the FRA/NFP on one hand; and a centralised, capital-oriented fortress-conservation approach embodied in the amended FCA and NWAP on the other. This is a familiar schism even outside policy discourse, and one of the (well-critiqued and evidently flawed) premises it is based on is that conservation and human development are aspects of a zero-sum game. This is reflected in the larger trend in Indian forest policy - not confined to the judiciary alone - of viewing conservation and community rights over commons as oppositional objects. The FRA marked a departure from this false nature-society dichotomy in recognising that the persistence of forests is inextricably tied to their relationships with adivasi and other forest-dwelling communities like pastoralists.

It is often overlooked that the FRA is as much a conservation legislation as it is a socialist-welfarist law (see sections 3(1)(i), 3(1)(k), 4(2)(f) and 5). What was also missing from the discussion in the Order is that the FRA, like the FCA, is explicitly applicable to all forest areas, regardless of their description - following the above-mentioned order of the Supreme Court dated December 12, 1996. This includes protected areas (i.e. wildlife sanctuaries, national parks, tiger reserves, conservation reserves and community reserves), for which there is a statutory framework in place to reconcile the conflicts that arise between the legal regime for protected areas under the Wild Life (Protection) Act, 1972 on one hand, and that of the FRA on the other. The contours for this schema for reconciliation are set out in sections 4(2)(b) to 4(2)(f) of the FRA, and elaborated in the Guidelines for the Notification of Critical Wildlife Habitats, 2018 and other various circulars and clarifications issued by the Union Ministry of Tribal Affairs.

The obsolescence of the dichotomous conservation-forest rights view has also been noted by the Karnataka High Court in Suo Motu v. State of Karnataka and Ors. [(2013) 10 KAR CK 0193]. The learned single judge at para 3.4, observed:

“In certain key areas within the elephant range in Karnataka (e.g., BRT Tiger Reserve), we note that adivasis have been conferred individual and community forest rights (including the right to conserve) under the Forest Rights Act, 2006. The conferring of these rights currently results in a regime of overlapping rights and authority between the adivasis and the Karnataka Forest Department.” (emphasis added).

He went on to say,

“We are inclined to see this overlap as a potential opportunity for new models of conservation rather than as a threat. Hence, we recommend that, in the present circumstances, the State and the adivasis jointly draw up management plans compatible with the goals of conservation, in consultation with experts, clarifying their respective rights, roles and responsibilities to further conservation through a democratic process, and to hold each other accountable to that commitment.” (emphasis added).

The balancing act in the present Order, unfortunately, found no such resolution - the directions reflect an implicit bias towards the oppositional view of forest conservation and forest rights. This is clear from the distinction made in paras 55 and 58 between ‘directions’ to notify orans as community reserves under section 36D of the WLPA, and ‘suggestions’ to notify orans as community forest resources under the FRA. In this way, the Order also furthered a trend of statal hesitancy in giving due regard to institutions of local self-governance (the Gram Sabha, in particular) in resource management, and in interpreting and enforcing FRA to its full extent. This trend is not new: The Balwantrai Mehta Committee, established to look into greater participation in Indian democracy, noted in its 1957 report that: ‘the Panchayati Raj system in the country did not develop as expected because of resistance from politicians and administrators to share power and resources with local-level bodies’. It is also worth noting that a direction to notify community reserves from the Court arguably contradicts the spirit of section 36D of the WLPA, which contemplates these protected areas to be formed on the basis of voluntary expressions of intent from communities, and not top-down orders.

The confused language in the Order, discussing and emphasising the importance of forest rights and community-led conservation of orans at length, only to finally direct their notification as community reserves, has potentially grave consequences. Community reserves are essentially under the jurisdiction and control of the forest department, and when viewed along with the dilutions made to the FCA, create a framework that enables easier diversion of the lands designated as such to non-forest uses - in contrast to CFR lands, whose titles and authority to alienate rest solely with the community of users, or the Gram Sabha.

This is not just a prediction. A few print and digital news media houses, and research agencies have been reporting on the ongoing dispossession of swathes of orans and community lands in Western Rajasthan in favour of large renewable energy projects, whose proponents featured one large corporate house in particular. In western Rajasthan (Jaisalmer, Barmer and Bikaner districts), the orans are larger in size and have long since attracted industrial attention, for solar parks and other projects whose benefits are far from equitably distributed. While traditional news media reporting and attention on such transfers is sparse, what adds to the obfuscation of such state action is the status of such lands that often escapes reportage: in most cases and as mentioned above, orans are functional, biodiverse pastoral grasslands, misrecorded deliberately in government records as different categories of public wastelands - whose alienation and transfer is provided for in state land revenue codes and exercisable by the District Collector alone.

This Order, then, arguably does little more than to administratively divert the processes and line departments for their expropriation and diversion for corporate benefit, at the expense of land rights, biodiversity, nutritional security and livelihoods for the people and animals of Rajasthan.

Within this, however, also lies opportunity - since the Order identifies orans as forest lands, and since notification as community reserves does not foreclose the recognition of forest rights under the FRA - CFR claims under the FRA are now available with judicial observations in support of their recognition. There is ample evidence of sustainable use and effective protection of these commons through informal community-based institutions like samitis and gram sabhas. It remains to be seen how this is actualised in a political context that is increasingly resistant to the decentralisation and devolution of means of production and governance.

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*Raghav Srivastava is an interdisciplinary researcher trained in law at the National Law School of India University (NLSIU), Bangalore, with a master's in environmental policy analysis from the Yale School of the Environment. His research has tried to centre historically dispossessed peoples in forest and land governance in India.

Note: All views expressed here are personal and solely the author's own.