A new project aims to document India’s customary laws

Documenting customary laws is a step towards community-led conservation

A customary meeting in Kanhari Khurd.
A customary meeting in Kanhari Khurd. A customary meeting in Kanhari Khurd.

People from Kanhari Khurd village in Madhya Pradesh’s Mandla district are, like in most villages in central India, primarily dependent on agriculture for earning their living.

However, this tribal village, with more than 80 per cent of its 91 households from Gond and Baiga (a primitive, vulnerable tribal group) tribes, is also significantly dependent upon the neighbouring forests for cash incomes through collection of various minor forest produce.

Keshav Yadav, a man in his forties from Kanhari Khurd, shares that collection and selling of Mahua flowers (Madhuca longifolia) tree and leaves of the Tendu (Diospyros melanoxylon) tree are the two major sources of income for several families in the village.

Because of their livelihood generation potential, Mahua flowers, which are also used as a raw material for the locally brewed liquor, have traditionally been collected by people from Kanhari Khurd.

To a naive outsider, the early morning bustle among the villagers for collecting Mahua flowers, during the months of March and April, may seem like an unorganised activity, wherein anyone can collect the flowers from a place of her choice.

However, a brief discussion with the community in Kanhari Khurd reveals a well-defined scheme of tree allocation to individual households, which has been carried out by their ancestors.

This distribution of trees exists not only for the trees on the revenue land within the village boundary, but also for the trees within the neighbouring forest, falling under the jurisdiction of the forest department.

People from neighbouring villages also report similar patterns of tree allocation. There also exists a clear demarcation between Kanhari Khurd and the neighbouring villages who depend up on the same patch of forest for Mahua flowers.

According to this customary law of tree allocation, the household to which a particular Mahua tree has been allotted, is the owner of that tree and has complete authority over the collection of Mahua flowers from it.

However, beyond the Mahua flower collection seasons, anyone in the village is allowed pluck its fruits and either sell or use them for preparing cooking oil. This law is time-tested and is honoured by the local communities, though there are sporadic thefts.

Similar unwritten laws exist for several other resources too. Twenty-three-year-old Sunita Kurweti from Bichhiya in Mandla, shares that during festive periods, people from hers and the neighbouring villages worship different, but specific, Saja (Terminalia elliptica) trees inside the forest and at times, pluck off a twig from the same tree during festivals at home.

There are laws governing the usage of the water and pasture lands as well. In Sarhi village of Mandla, 35-year-old Jhumaklal Maravi has a dug-well on his farm land which is used by all households from this hamlet for drinking and household purposes.

Similarly, other dug-wells on private lands are also considered commonly-held resources (also known as Common Pool Resources). Different hamlets near Sarhi also have traditionally defined pasture land and cow-shelters (Gotha/Gothan) for their cattle inside the neighbouring forest.

Non-recognition of the customary laws

Similar customary laws can be observed across villages in India. None of these customary laws are on paper, but are passed on orally across generations and are obvious to the local communities.

However, such customary laws are not recognised by the state. Because these are not recognised and not written either, the policy makers responsible for deciding the best possible applications of such resources — held in common by the rural communities — are bound to be ill-informed.

Damage to existing social relationships

This non-recognition is equally disruptive for the existing social relationships within the villages. Most of the pasture land traditionally used by people from Sarhi is falling in the Kanha National Park since 2008.

With the pasture land reduced, the cattle count and the dependence on livestock rearing as a livelihood has reduced, making agriculture the mainstay of the community, forcing people to invest in tube wells for irrigation.

In a meeting with the local community, 28-year-old Chaitram Maravi lends voice to the rift this recent phenomenon has created, while sharing that these few tube wells, dug by economically better-off households in the village, are not governed by the same sense of sharing as were the dug-wells.

Documenting the laws for recognition

The above instances suggest a strong need to work towards the recognition of these customary laws to ensure that community’s perspectives are taken into account when policy decisions are formed. The Forest Rights Act (FRA) of 2006 attempts to achieve this objective for forests.

However, a foundation needs to be created to not only to help better implement the FRA, but also enable policy makers update themselves on the customary laws. A database of such laws will also empower rural communities by giving them some negotiation power if these laws are not recognised.

People’s Commons Register

With these objectives, Vikasanvesh Foundation (VAF) and Foundation for Ecological Security (FES) have collaborated to come up with a method to prepare a People’s Commons’ Register, which will be a comprehensive database of the customary laws around these commonly held resources.

VAF and FES, with the support of Aga Khan Rural Support Program India (AKRSPI) and Professional Assistance for Development Action (PRADAN), are facilitating the preparation of the People’s Commons’ Register for 57 villages across Burhanpur and Mandla districts of Madhya Pradesh and Bastar district of Chhattisgarh.

For preparing a People’s Commons’ Register, the members from the local community, with some capacity building support, bring together the different communities from the village to learn about and record the diverse customary laws prevalent in the village.

By recording the customary laws related to not only the economic but also the social and spiritual significance of the commonly-held resources, the People’s Commons’ Register is generating an awareness about the need to conserve and sustainably manage these resources.

The People’s Commons’ Register is also acting as a means of the knowledge transfer between the older generations who are more associated with the commonly-held resources and the younger generations who are losing this treasure of the customary laws.

The multiple discussions carried out in the run-up to the preparation of a People’s Commons’ Register by the local community in Dangurla and Amulla Khurd villages of Burhanpur have catalysed the community to form a committee around the People’s Commons’ Register and through it, work towards the conservation and management of its commonly-held resources.

Although the People’s Commons’ Register has the potential to facilitate community-led conservation and management of the commonly-held resources and also give some negotiation power to the community in recognition of its customary laws, it should be seen, at best, as a foundation in this context.

Recognition of the People’s Commons’ Register by the state, hand-holding of the community groups in the task of conservation and management of these resources are few of the tasks ahead.

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