II. Indigenous rights and land law

Land displacement of tribal peoples began under colonial rule when forests were recognised as a rich source of revenue and converted to sovereign territory. The concept of terra nullius or ‘empty lands’ was used to expropriate indigenous lands in the past (Gilbert and Doyle, Reference Gilbert, Doyle, Allen and Xanthaki2011, p. 5). Terra nullius is a principle that indigenous peoples are still fighting against in an effort to reclaim lost ancestral lands. Land has historically been tied closely to indigenous identity, and characterised by a collective relationship to resources and to social and spiritual well-being (Tugendhat and Dictaan-Bang-oa, Reference Tugendhat and Dictaan-Bang-Oa2013, p. 2). For example, a group of Torres Strait Islanders challenging the terra nullius concept at the High Court of Australia in 1992 managed to get it rejected and to obtain recognition of their ancestral land tenure. Consequently, the Native Title Act of 1993 was passed to protect indigenous titles (Hunter, Reference Hunter2014, no page).

In India, the ancient ancestral ownership and occupation rights of tribal forest peoples were first disregarded under colonial rule in 1874, when the colonial administration deemed all the Adivasi areas as being ‘outside the jurisdiction of the normal administration’ and called them ‘scheduled areas’. The tribal populations of India are still referred to as ‘scheduled tribes’. The Scheduled Districts Act XVI 1874, the Government of India Act 1919 and the Government of India Act 1935 facilitated control of Adivasi lands, which were abundant in natural and mineral resources (Bhengra et al., Reference Bhengra, Bijoy and Luithui1999; Dash and Khotari, Reference Dash, Khotari, Kohli and Menon2012; Gadgil and Guha, Reference Gadgil and Guha1992; Karanth and Defries, Reference Karanth and Defries2010). In the 1950s, the ‘schedule’ or list of forest and hill tribes compiled by the British in 1874 was incorporated into the Constitution of independent India. Colonial jurisprudence strongly influenced the legal environment in the post-colonial period, as shown by laws such as the Wild Life (Protection) Act 1972 and the Forest Conservation Act 1980. Both laws continued the exclusion of indigenous peoples in India, in which wildlife protection took priority over housing and livelihoods of forest people. Other policy mechanisms such as the National Forest Policy of 1988 and the Joint Forest Management programme reinforced the control of the Forest DepartmentFootnote ³ over the lives of indigenous peoples, perpetuating ecological imperialism and dispossession (Springate-Baginski et al., Reference Springate-Baginski, Sarin, Ghosh, Dasgupta, Bose, Banerjee, Sarap, Misra, Behera, Reddy and Rao2008, p. 9).

Contemporary law in India, as it developed, initially followed the classic legal traditions of the West. Decolonised societies, however, have had to jettison the traditions that kept them controlled under imperial domination and repression, which Galanter refers to as the ‘expropriation of law’ (Galanter, Reference Galanter1968, p. 67). Galanter also points out that this legal tradition is alien to Indian traditions: ‘Foreign in origin and in inspiration, notoriously incongruent with the attitudes and concerns of much of the population, [the Western legal tradition] displaced a major intellectual and institutionally complex one within a highly developed civilization’ (Galanter, Reference Galanter1968, p. 65; Kidder, Reference Kidder1977). It was only after colonisation that modern India was unified into a single ‘nation’ governed by a foreign power, from formerly discrete kingdoms of varying sizes, characterised by different cultures and languages. Part of this governance system was the establishment of a unified modern legal system. The new legal system shared certain characteristics with the foreign ruler, the bureaucracy, mechanics and protocols of which were alien to the local Hindu, Muslim and other Indian legal traditions. Given that tribal communities in India are for the most part unexposed to the Western/British legacy either through education or through the law, attempting to engage with such a culturally unfamiliar legal structure serves to impede their own legal empowerment. This is further exacerbated by high rates of illiteracy and often by geographical isolation.

Indigenous law in India operated through informal ‘tribunals’, which ‘represented a multiplicity of systems with no fixed authoritative body of law, no set binding precedents, no single legitimate way of applying or changing the law’ (Galanter, Reference Galanter1968, p. 71). When referred on to the government's courts, these tribunals were transformed and curtailed. Informal systems of dispute settlement were and still are influenced by unwieldy foreign systems of litigation since colonisation to which the Adivasis are subjected. Some of this litigation, inevitably contentious in nature, might have been peaceably settled through traditional tribunals. The new Western principle of ‘equality before the law’ dismissed the status and communal ties of the parties involved, and traditional ‘mediation’ methods were rejected for the contemporary Western ‘win or lose’ culture (Cohn, Reference Cohn1959):

Taken within this legal context, Adivasis, when faced with dispossession of their lands, have had recourse to a legal tradition that is intrinsically alien to local informal tribunals.Footnote ⁴ This raises the question of whether the externally imposed legal tradition in India results in an obstruction to access to justice for indigenous groups. The following section takes this discussion of access to justice into the realm of social justice and rights.

III. Rights and social justice

The Forest Rights Act in India reflects a global move towards the recognition of human rights and is founded on principles of social justice. Social justice norms, which guide national and international normative frameworks, are increasingly influenced by human rights norms. Human rights, ‘the dominant normative conception in the contemporary globalized world’, have similarly shaped international history (Gauri and Gloppen, Reference Gauri and Gloppen2012, p. 485). The French Revolution, the US civil rights movement, independence from colonial imperialism and the discontinuation of the slave trade exemplify paradigm shifts in human rights norms. It was only in 1948, in response to the atrocities of World War II, however, that the Universal Declaration of Human Rights laid out moral foundations of justice and freedom and became a mainstream legal norm internationally. In line with these international legal norms and human rights frameworks, the International Labour Organisation (ILO) Convention on Indigenous and Tribal Peoples of 1989, No. 169, on the right to continue traditional occupations and the 2007 UN Declaration of the Rights of Indigenous Peoples are major legal contributions to land rights of indigenous people (Gilbert and Doyle, Reference Gilbert, Doyle, Allen and Xanthaki2011).

Under the Universal Declaration of Human Rights, human rights standards are developed by agencies at a supranational level that formulate policies on human rights. This produced international bodies which formulate and implement the policies (Galligan and Sandler, Reference Galligan, Sandler, Halliday and Schmidt2004, p. 26). While human rights standards are developed at the international level, responsibility for the implementation of the international standards lies with individual nation-states. This both weakens accountability to human rights standards and results in an uneven interpretation and implementation of human rights norms across nations (Galligan and Sandler, Reference Galligan, Sandler, Halliday and Schmidt2004, p. 48). Traditionally, the international bodies engaged in setting human rights standards attempted to direct and facilitate the implementation at national levels. More recently, however, we see the introduction of forms of direct implementation of international law, with discrete legal systems. The United Nations Committee on Economic, Social, and Cultural Rights (UNCESCR) describes a ‘minimum core’ obligation by which a state has to ensure an indispensable set of social economic rights such as the right to housing. The state has to comply with the essential level for each right. The essential level is generally determined by the most vulnerable group and the protection of their rights, as understood in international law.Footnote ⁵

The weakness of the policy of individual states being obligated to comply with the minimum core of social economic rights is highlighted by Amartya Sen. He challenges the ‘coherence’ of the human rights approach and ‘the intellectual edifice of human rights’ through three critiques (Sen, Reference Sen2001, p. 227). Firstly, he questions the legitimacy of human rights, since they are based on ‘pre legal principles' and are not justiciable rights, which adds confusion to the legal system. The status of human rights is therefore weakened, since they are entitlements sanctioned by the state, which is the ultimate legal authority. The second critique pertains to what he calls ‘coherence’. Since rights have to be provided by an authority or a state, such as ‘the right to food or to medicine’, Sen argues that they can be a ‘hollow’ concept, especially if the agency in charge does not provide the food or medicine or, in the case of this essay, land rights. Thirdly, he questions the universality of the social ethics of human rights, and whether they are held in the equal regard by all cultures (Sen, Reference Sen2001, p. 228).

In India, in response to this expectation of a minimum core of social economic rights, the Forest Rights Act provides a legal framework for the protection of substantive rights for tenurial security of vulnerable forest peoples and indigenous groups. The Forest Rights Act, framed in rights-based language, is perceived as ‘contemporary India's largest land regime change’ (Sambhav, Reference Sambhav2013, no page). It has the potential to change forest governance and to empower forest communities. The Forest Rights Act was passed in 2006 and became effective on 1 January 2008. The law notes that it is intended to address the ‘historical injustice’ suffered by tribal peoples and other forest dwellers who have lived for generations in the forests yet whose ‘rights on ancestral lands and their habitat were not adequately recognised in the consolidation of State forests during the colonial period as well as in independent India’. The law also explicitly states that its purposes include addressing the consequences of development by the state: the Act is meant to address the ‘long standing insecurity of tenurial and access rights of forest dwelling Scheduled Tribes and other traditional forest dwellers including those who were forced to relocate their dwelling due to State development interventions' (Government of India, 2012, p. 1).

An estimated 200 million people in India who are dependent on the forests for livelihoods and habitat may benefit from the FRA (Sarin and Springate-Baginski, Reference Sarin, Springate-Baginski and Papers2010, p. 6). When twenty-three per cent of India's forest lands were designated as state forests, for the use of extractive industries, the due legal process of recognising pre-existing customary rights was not respected: ‘It is this population of the country's poorest people, numbering perhaps one hundred million, who have suffered institutionalised disenfranchisement during colonial rule and after independence, who stand to benefit the most from proper implementation of the FRA’ (Sarin and Springate-Baginski, Reference Sarin, Springate-Baginski and Papers2010, p. 6).

Two groups of people are granted substantive rights under the FRA. First, ‘Forest Dwelling Scheduled Tribes’ are defined as members or community of the Scheduled Tribes who primarily reside in and who depend on the forests and forest lands for bona fide livelihood needs and include the Scheduled Tribe pastoralist communities. The second group of people granted rights under the FRA are ‘Other Traditional Forest Dwellers’, defined as any member or community who has from 1930 and before ‘primarily resided in and who depends on the forest or forests land for bona fide livelihood needs’. It is important to note that not only individual, but also community rights are recognised.

The important substantive rights that are granted to those covered by the FRA include: (1) the right to ‘hold and live in the forest land under the individual or common occupation for habitation or for self-cultivation for livelihood’; (2) ‘community rights such as nistar, by whatever name called’ (‘nistar’ refers to the necessities of carrying on the business of living, including, in the communal context, timber, pasture, fodder, burial/cremation ground, schools, parks, playgrounds, drains, etc.); (3) the right ‘of ownership, access to collect, use, and dispose of minor forest produce which has been traditionally collected within or outside village boundaries’Footnote ⁶ ; (4) ‘other community rights of uses or entitlements such as fish and other products of water bodies, grazing … and traditional seasonal resource access of nomadic or pastoralist communities'; (5) the ‘rights in or over disputed lands under any nomenclature in any State where claims are disputed’Footnote ⁷ ; (6) ‘rights for conversion of Pattas [titles] or leases or grants issued by any local authority or any State Government on forest lands to titles’; (7) ‘the right to protect, regenerate or conserve or manage any community forest resourceFootnote ⁸ which [forest dwellers] have been traditionally protecting and conserving for sustainable use’. ‘This is amongst the most powerful and significant rights for re-commoning the enclosures and restoring community controlled democratic forest governance within customary village boundaries' (Sarin and Springate-Baginski, Reference Sarin, Springate-Baginski and Papers2010, p. 12). None of the rights to land granted under the Act can be either sold or otherwise transferred.

A further right granted to those covered by the FRA is one that explicitly recognises that forest dwellers have been the victims of illegal acts depriving them of their rights in the past, and considers rehabilitation to alternative sites. As one can see from reviewing this list, a number of significant substantive rights are granted by the terms of the FRA. If implemented as written, the FRA has the potential to improve the lives of many who live in the forests and rely on its produce to live, but who have been treated unjustly in the past.

The procedure for claiming rights under the FRA begins at the village level. The Gram Sabha, a village assembly, which, under the FRA rules, must include not less than one-third women, invites claims, verifies them and prepares a map outlining the area of each claim it recommends for recognition. The government ministry responsible for implementing the FRA is the Ministry of Tribal Affairs (MoTA), rather than the Ministry of Environment and Forest (MoEF). Given that the MoEF may be required to surrender significant power, revenue and land under the FRA, many advocates for forest dwellers questioned the likelihood that the MoEF would administer the law fairly. Thus, the assignment of responsibilities under the law to the MoTA was viewed as a victory for forest dwellers and their supporters.

The enactment of this progressive social law has not, however, translated into the just and equitable implementation of law in India. For example, given that the majority of the tribal communities have poor access to education, it might be unmanageable to make claims and to collect evidence for the claim within three months from the day a claim arises. Two types of proof are required and documentary evidence might be problematic for forest people to produce, such as proving that they have occupied the forest land before 13 December 2005 (section 4.3). There are several issues, but this is just one illustration that the legislation is not user-friendly. Another is that the claimants must prove seventy-five years of residence, which is unreasonable, especially as it may exclude a great number of people from protection. It fails to take into consideration that this kind of proof is often not available. Moreover, restricting eligibility to ‘scheduled’ tribes also excludes many tribal groups, who, for some historical administrative reason, had not been ‘listed’ by the colonial government in the ‘schedule’ and fall through the tribal benefits net (Sarin and Springate-Baginski, Reference Sarin, Springate-Baginski and Papers2010, p. 18).

The rules have many omissions, including no clarification on how to claim either rights or restrictions on rights claimed. Procedures are lacking in how to claim complex rights such as usufruct rights that are harmful to pastoral and transhumant communities and communities called Primitive Tribal Groups (PTGs). The unfortunate articulation of how the FRA relates to other existing laws has caused ambiguities, especially with contradictions between rights of tribal communities and conservation and wildlife laws. Forest people have always lived in areas that are now labelled as wildlife habitats. Conservation and biodiversity protection laws are often at variance with rights of forest peoples. The FRA does not provide adequate clarification on these contradictions, nor therefore adequate protection for forest peoples. Section 13 of the Act states:

Under the FRA, Gram Sabha is defined as a village assembly. The PESA, however, defines Gram Sabha as ‘hamlets’, or ‘a group of hamlets’ or ‘forest villages’, or ‘traditional villages’, etc. The inconsistency has created a lot of harm and confusion, and has given the government officials who oppose the decentralised decision-making – a loophole to disregard Gram Sabha decisions. Another obstacle to the decision process for claims is that the Gram Sabha, which technically consists of all the adult voters within a certain administrative boundary, can entail thousands of villagers from different settlements, which would comprise their ‘village’. This becomes unmanageable and a cause for yet another impediment to the process (Sarin and Springate-Baginski, Reference Sarin, Springate-Baginski and Papers2010, p. 18).

Under the PESA, Joint Forest Management (JFM) committees were set up with community members and the Forest Department. In principle, this was to empower the community to share decision-making. In reality, however, the Forest Department dominated the relationship that either disempowered the community or reinforced historical subjugation. The devolution of power to the Gram Sahba gives them statutory rights to manage, conserve and protect forests. In many areas of the country, however, the forest departments continue to interact with JFM committees that had already been set up, as do some non-governmental organisations (NGOs) who had encouraged JFMs for the right reasons but do not seem to be able to relinquish this model of forest management for the more empowering one of Gram Sabha authority. To sum up, the inconsistencies within the FRA are many, which creates an inadequacy for the law to be perceived as successful land reform. The inherent legal inconsistencies of the FRA are further exposed when pitted against the hegemonic ideology of neoliberalism. It is this ideology that is the focus of the next section.

IV. Neoliberalism and social justice

Many states in developing countries exhibit features of neoliberal statecraft, so we may ask whether their present ideologies have impacted on their understanding of rights, law and justice. In order to examine the failure to recognise legal rights of indigenous peoples, which is described in detail in the case-study below, it is helpful to consider the role of the government, state exploitation of forest lands and the conditions that foster the legal exclusion of indigenous peoples fighting for their land rights. Under neoliberal capitalism, the government, the judiciary, the market forces, civil society and political society are competing for resources. Harvey captures the essence of neoliberalism when he defines it as a ‘theory of political economic practices that proposes that human wellbeing can best be advanced by liberating individual entrepreneurial freedoms and skills within an institutional framework characterised by strong private property rights, free markets, and free trade’ (Harvey, Reference Harvey2005, p. 2).

Though the term ‘neoliberalism’ is widely used, a critical discourse on the concept of neoliberalism is still nascent. Emerging as a political-economic theory, rooted in Adam Smith's classical liberalism theories (Thorsen, Reference Thorsen2010, p. 8; Harvey, Reference Harvey2005), the present discourse is eclectic, representing broad and often contradictory political perspectives. An economic doctrine that stresses individual freedoms in the context of private property, free trade and free-market capitalism, neoliberalism prescribes the role of the state as supporting these aspects through guaranteeing the integrity of money and efficient functioning of the markets. State support of public facilities such as legal structures and defence is justified purely in order to prioritise the success of markets as the necessary precondition to the welfare of its citizens. State responsibility remains limited, with the emphasis on freedom and self-regulation of markets (Harvey, Reference Harvey2005, p. 3; Thorsen, Reference Thorsen2010). Dag Einar Thorsen writes that publications on neoliberalism are often critical, and his interpretation is that neoliberalism is a loose set of political beliefs and that the state is legitimately responsible for safeguarding individual liberty, which is perceived in terms of commercial liberty for individuals and corporations, with the state's role as being minimal (Thorsen, Reference Thorsen2010, p. 15).

Hayek and Friedman, foundational figures in neoliberal ideology, are of the school that advocates an individual's freedom to choose as being spontaneous and ‘natural’, and that a state that manages welfare would suppress economic advancement (Thorsen, Reference Thorsen2010, p. 14). These free-market social and economic policies, popularly known as the Washington Consensus (Jessop, Reference Jessop2002, p. 454), became the dominant economic policy during Reagan and Thatcher governments in the US and the UK in the 1980s, and now pervade national and international financial institutions including those such as the IMF, The World Bank and the World Trade Organisation (WTO). In 1975, the ‘Chicago boys’, so named because they came from the University of Chicago, worked with the IMF at Pinochet's invitation to reshape the Chilean economy along neoliberal lines (Harvey, Reference Harvey2005, p. 8). China in 1978, India in the 1980s and Sweden in the 1990s all turned decisively towards neoliberalised economies (Harvey, Reference Harvey2005, p. 9). Harvey posits that the 1930s capitalist slump and World War II shaped the neoliberal appeal, as both capitalism and communism were seen to have failed, which activated the Bretton Woods agreements, generating global financing and management through the IMF and World Bank and the UN (Harvey, Reference Harvey2005, p. 10). After independence in 1947, a badly impoverished India chose to strongly support state economic policies. Concentrating on building an industrial base, these policies did not comprehensively address the deep poverty of the majority of Indians. The 1980s economic liberalisation was the architect of the New Economic Policy of 1991, which continued to alienate the impecunious groups such as tribal populations (Gidwani, Reference Gidwani2006, p. 11).

Michel Foucault, the French philosopher, who has given us post-modern and post-structural understandings of the past in the present through his analysis of psychology, social theory and history of ideas (Kelly, no date), observes that, in the neoliberal tradition, state policies are, even in the social sphere, strongly influenced by market forces. In support of this, Lemke refers to the allocation of inadequate resources, the inequitable aspect of which suffers from competing goals (Lemke, Reference Lemke2010, p. 197). Foucault argues that the neoliberal statecraft attempts to redefine the social sphere as an economic domain, which means that the onus is on the government of a nation-state to regulate competition and the market for individuals and groups and for institutions (Lemke, Reference Lemke2010, p. 197).

Humphreys makes a case for neoliberal policies influencing forest laws and environmental mechanisms such as the Kyoto Protocol and the EU's Emissions Trading Schemes. He argues that, in order for neoliberalism to flourish, the government has to be strong and has to introduce ‘market-based disciplines to new areas and create political space that can be occupied by private sector businesses' (Humphreys, Reference Humphreys2009, p. 319). Humphreys shows, through detailed evidence, that neoliberal policies have been influential since the 1992 UNCED forest principles and the latest 2007 Non-Legally Binding Instrument on all Types of Forests. Specifically, forests continue to be prioritised as a corporate resource base for markets and extraction, rather than protected for non-exploitable sustainability. Other ecological sustainable and social justice forest policies of conservation and wildlife protection are competing with neoliberal power, such as when the Convention on Biological Diversity included public–private partnerships as a mechanism for the promotion of private investments (Humphreys, Reference Humphreys2009, p. 322).

Oishik Sircar takes an unrelenting stand on the erosion of human rights in the context of neoliberalism in India. He deems the undermining of rights an illusion of ‘legal emancipation’, being the faith citizens put in their government and in the judicial system in order to be ‘emancipated’ from poverty and granted access to justice. The assumption is that laws have the power to grant rights, which will guarantee justice. This ‘linear progression’ is what Sircar calls an illusion, or ‘spectacles’ through which one incorrectly views the culture of rights as having the potential for emancipation and access to justice. Justice, however, is often elusive, by reason of the gap between the expectation of justice and the reality of what the law delivers. Sircar argues that neoliberalism is being used by the state to justify the ‘liberal statecraft and market craft, both of which operate through a seamless intersection of managerial and militarised agendas'. This neoliberal statecraft has led to the ‘privatisation of state accountability’ (Sircar, Reference Sircar2012, p. 527) and to the ‘the militarisation of the state’, both of which contradict the rights-based culture that has been developing. It also compounds the betrayal of vulnerable populations who understandably expect that their access to justice should increase with the enactment of social justice legislation. Within vulnerable populations, women are even more marginalised than men. A neoliberal setting that subordinates the state to the market compromises the protective and ‘just’ role of the courts and that of the constitutional framework. The courts, where they are merely instruments of the neoliberal state, are thus used to legitimise what Sircar deems state violence. This analytical framework is useful to understand the case below of the Gaddi women being arrested in Himachal Pradesh for peacefully protesting for their land rights. It bears witness to the ‘illusion’ that more laws equal more rights, which in turn equal more justice.

When the ‘allocation of scant resources for competing goals' is taken on by the state, from ‘the majoritarian perspective of social betterment’ (Sen, Reference Sen2001, p. 251), minority rights can be in danger of being disregarded to an extreme, as exposed by the pattern of steady dispossession of tribal lands. Majority improvement is part of a neoliberal ideology. A hypothetical example of majority improvement is illustrated by Sen. He divides a cake between three people called B, C and D, ‘with the assumption that each person votes to maximize only her own share of the cake’ (Sen, Reference Sen2001, p. 251) After voting, a share of person B's cake is taken away and given to C and D, in the name of ‘majority improvement’. Even if person B is the poorest of the three, this division could continue until B would have no cake left. Despite a government's mandates to protect the most marginalised communities, under the concept of ‘majority improvement’, this would be justified, creating a contradiction in governance.

This uncomplicated cake example has been played out in real life in the displacement of the Gaddi tribal communities in the Chamba District described below. These elements of neoliberal statecraft and their clash with the social justice and rights-based Forest Rights Act also play out in the case-study on land displacement protests, with negative consequences for land dispossession for the Gaddi tribe. It reveals the tension between laws framed for social justice and governmental violation of these laws. This is particularly difficult to reconcile when the government is obligated to act as the ultimate legal authority to ensure access to justice.

V. The Chamba District land displacement case-study

During a peaceful protest against plans for a hydroelectricity project,Footnote ⁹ which would dispossess them of their lands, thirty-five Gaddi tribalFootnote ¹⁰ women were arrested in March 2014, in the northern Indian state of Himachal Pradesh. The women, from Holi village of Chamba District, had been protesting against the proposed hydroelectricity plans for two years. The plans would decimate the dense forests they inhabit and result in the loss of their homes. A fifteen-kilometre-long tunnel would be built for the project, requiring blasting. This in turn would dry up the Ravi River on which they depend for water resources, and eventually displace the community.

The arrests of the Gaddi women are inconsistent with fundamental rights of citizens of India such as the right to equality, the right ‘to freedom of speech and expression’ and the right to ‘assemble peaceably and without arms’ (India, 2007, Part III, No. 14). The arrests also violate forest rights of indigenous peoples under the Forest Rights Act of 2006, which indicates that it does not seem to have influenced the behavioural norms of either the government or of the judiciary towards land rights of the tribal women, at least in Chamba District. In the face of this clear violation of the FRA and the seeming disregard for social justice by the government, two fundamental questions arise: do the protesting tribal women in Chamba District have legal rights over their land, and has the FRA delivered on its promise of greater power and enhanced rights for indigenous peoples in India? The adverse effects of development-induced displacement remain unquestioned by those in power and are reinforced both by the government and by the corporate sector.

Besides the arrest of the tribal women, as well as the intimidation of the women by local contractors and police, to force them to withdraw their protest, the Chamba case revealed several governance shortcomings (HimDhara, 2014, no page). The gender-based violence implications of police and local contractors intimidation of the women does not comply with international standards concerned with violence against women.Footnote ¹¹ Furthermore, it compounds the fundamental failure to recognise land rights under the Forest Rights Act. The Forest Rights Act grants land rights to both women and men equally. The MoEF granted approval for the forest clearance to the corporation funding the project. This action was taken without referring the matter to the Gram Sabha (the meetings of local village councils)Footnote ¹² as required by the provisions of the Forest Rights Act. The approval was made on the basis of a false certificate issued by the Chamba Deputy Commissioner, which stated that ‘there were no claims for forest rights to be settled on the seventy five hectare forest land to be diverted for the project’ (HimDhara, 2014, no page). In addition to this, the initial plans for the hydroelectricity project had called for construction on the bank of the river Ravi where there were no forest villages. The MoEF, however, gave consent to GMR to shift the project to the opposite riverbank where several tribal forest villages were situated. The MoEF consent apparently was given within one day of the GMR application, while the inhabitants were only informed of the decision two years later. This consent was given despite an evaluation report by the Himachal Pradesh State Electricity Board, which examined technical, social, environmental and economic issues in making a recommendation against the shift from one river bank to another.Footnote ¹³

A third action harmful to the claims of the tribal women was the ruling of the Himachal Pradesh High Court, which denied claims filed in support of the tribal women.Footnote ¹⁴ The High Court's ruling seems questionable in light of section 4(5), in which the FRA prohibits the eviction of forest dwellers from forest land under their occupation until completion of the process of recognition of rights.Footnote ¹⁵ The MoTA had issued directions in 2012 emphasising that the protective clause against eviction from forest lands is absolute, but this guidance was disregarded both by the MoEF and by the High Court, which also reinforces the endemic power imbalance that is ‘shaped not only by gender discrimination within Indigenous and non-Indigenous arenas, but by a context of ongoing colonization and militarism; racism and social exclusion; and poverty-inducing economic and “development” policies' (FIMI, Reference Fimi2006, p. 6).

As with any law, the cooperation of various governmental agencies was required for the rights of the tribal women under the FRA to be recognised and realised. Among the various stakeholders who failed in their legal duty were the MoEF, the state High Court judges, the Chamba Deputy Commissioner and the police. The Forest Department under the MoEF is obliged to support the community and the new legislation. ‘Forest Departments, however, have shown considerable resistance to permitting recognition of the community forest resource (CFR) right as it challenges their exclusive territorial jurisdiction and control over forests' (Sarin and Springate-Baginski, Reference Sarin, Springate-Baginski and Papers2010, p. 24). The case of the Gaddi Tribal community is a sad reminder that, however commendable the law's intent and however precise its language, legislation will remain just words on paper without the cooperation of the government agencies and courts charged with making the law a reality in the lives of marginalised people. The case-study demonstrates that the implementation of legislation and policy is just as political as the process through which a policy is enacted and passed by government. It is driven by the ideological orientation of the state and its actors, which, as in this case, is inconsistent with the human rights and social justice foundation of the FRA. In the case of the Chamba District, it has resulted in tribal rights being subverted and undermined at the expense of the more powerful neoliberal agenda of the state and private sector interest groups.

The significance of this women-only protest also relates to a global feminisation of poverty, in which ‘women comprise the majority of the poor’ (Staudt, Reference Staudt1998, p. 217).Footnote ¹⁶ Agarwal argues that poorer women have been ‘victims of environmental degradation in quite gender-specific ways’, demonstrating that they also have also played a significant role in environmental conservation practice (Agarwal, Reference Agarwal1992, p. 119). Some of the ecofeministFootnote ¹⁷ discourse presumes connections between women's biology and ties to nature. I do not expand on that aspect in this paper and am aware of the danger of essentialising women's connection to nature. But I will emphasise the increase in workload specifically for tribal women whose division of labour includes gathering firewood, fodder, water, minor forest produce and cultivation of food. This workload is increased with the degradation of forests and loss of forest rivers through hydroelectric dams. In India, women have also been historically part of the active opposition to the increasing instances of land dispossession of forest peoples, starting with the much publicised Chipko Movement of the 1970s when women hugged trees in order to prevent logging and deforestation (Jackson, Reference Jackson1993; Agarwal, Reference Agarwal1992; Mawdsley, Reference Mawdsley1998; Shiva, Reference Shiva1988).

The global reality of women being excluded from the mainstream is compounded for tribal women who are excluded as being part of tribal communities and also as being women within their tribes. Women in different tribes enjoy different levels of equality. Some tribes are traditionally matriarchal and some are matrilineal. Some have been Sankritised and some were converted to Christianity and have assumed certain patriarchal traditions of other religions that were formally alien (Xaxa, Reference Xaxa2004, p. 350). Land ownership in many tribal communities is communal, which changes the gender dynamic of land rights. In the Khasi communities of Mehgalaya of north-eastern India, women historically hold the rights of land ownership and men do not (Xaxa, Reference Xaxa2004, p. 354). It is difficult to make generalised statements about tribal women in India, since tribal peoples live in many states in India and differ widely from each other.Footnote ¹⁸ Some experiences, however, are shared, such as the impact of the erosion of natural resources on which they are so dependent for their livelihoods (Xaxa, Reference Xaxa2004, p. 360). The loss of livelihoods and dispossession of their lands for all the Gaddi community would gravely impoverish all of them. For the women specifically, however, gathering food and the collection water and firewood for fuel within their communal gender division of labour would expose them to dangers when being pushed farther into the forests in search for their natural resources, such as the threat of wildlife. These dangers are important enough for the Gaddi women to protest for two years in spite of intimidation by local police and government officials aimed at forcing the protest to end. The Gaddi women's demonstration to claim their rights to their communal lands and to self-determination uniquely highlights the multiple discrimination faced by indigenous peoples who are both tribal and female. It also displays their leadership and underlines the gender issues inherent in the struggle to retain land ownership.

Forest lands are a valuable economic resource, exploited by the state in India since the 1800s, when the colonial government converted them into sovereign property. The customary ancestral ownership and occupation rights of tribal forest peoples in India were first disregarded under colonial rule in 1874, when the colonial administration facilitated control of Adivasi lands, which were abundant in natural and mineral resources, with the enactment of new laws: the Criminal Tribes Act 1871, the Scheduled Districts Act XVI 1874, the Government of India Act 1919, the Indian Forest Act 1927 and the Government of India Act 1935 (Bhengra et al., Reference Bhengra, Bijoy and Luithui1999; Dash and Khotari, Reference Dash, Khotari, Kohli and Menon2012; Gadgil and Guha, Reference Gadgil and Guha1992; Karanth and Defries, Reference Karanth and Defries2010; Sigamany, Reference Sigamany, Satiroglu and Choi2015).

Neoliberalism influences social justice. Social justice in this case is the recognition and respect for the land rights of indigenous forest peoples such as the Gaddi community, who are threatened with the loss of their land by plans for a hydroelectric project. It could be argued that economic policies followed by the government that allows this scenario of displacement from lands are questionable. These policies, which seem to favour individual and corporate profit over indigenous land rights, reflect the neoliberal doctrine. Harvey points out that

The neoliberal endorsement of privatisation in the Gaddi case sits uncomfortably not only with the concept of land rights, but also with the internationally agreed principles of forest conservation and protection of habitats. The Gaddi protest is a reflection of how the state, under neoliberal ideologies, is redistributing resources from marginalised groups such as women and indigenous peoples to the economic elite. This proves Harvey's theory of ‘creative destruction’ of neoliberalisation redistributing rather than generating assets and wealth, withdrawing rights to commons and, as in the Gaddi case, obstructing indigenous socio-economic patterns and livelihoods (Harvey, Reference Harvey2005, p. 159). One of the principle tenets of neoliberalism is that the government should not ‘interfere’ in the functioning of the market – that there should be a ‘separation’ of government from the market. In that sense, the failure of the Indian government to intervene in the Gaddi case is consistent with neoliberal policy, but its abandonment of it to protect the rights of indigenous people under the FRA has resulted in serious harm to the livelihoods and lives of the Gaddi. Gowan describes it in terms of Foucauldian governmentality, in which the state is complicit in a ‘steady abandonment of the majority to precariousness’ (Gowan, Reference Gowan2013, pp. 2–6; Gidwani, Reference Gidwani2006). It is evidence of a heavy-handed state intervention against the interests of the subaltern and reminiscent of the lack of ‘coherence’ that Sen refers to in regard to the state's role in providing access to justice.

VI. The colonial legacy of the past and the neoliberal doctrine of the present

In India, globalisation has created a dichotomy.Footnote ¹⁹ On the one hand, the ‘creative’Footnote ²⁰ and activist traditions that influenced the Constitution enable it to become ‘the vehicle of empowerment of the untouchables and indigenous peoples (defined respectively as the “scheduled castes” and “scheduled tribes”)’ (Baxi, Reference Baxi and Ray2000; Gauri and Gloppen, Reference Gauri and Gloppen2012). On the other hand, two centuries of colonial rule have left a legacy of laws designed with a view to extracting resources from the colony and to controlling local populations who might be harmed in the process. Much of the political and legal culture in India was initially adopted unchanged by the independent Indian government, which reinforced and maintained the exploitation of the subaltern populations in many ways, creating an ‘internal colonisation’ situation in the county, divided along lines of class and caste. ‘Postcolonial legality thus stands sited in the dialectics of repression and insurgency’ (Baxi, Reference Baxi, Schwarz and Ray2005, p. 544). It continues colonial laws' repressive legacies and even innovates these through the regimes of security legislations (Gauri and Gloppen, Reference Gauri and Gloppen2012). The Forest Rights Act is an attempt to correct historical injustices of land tenure, but it is impeded by the two barriers of the colonial legacy of the past and the neoliberal doctrine of the present. The law has been complicit in the oppression of the poor and marginalised groups. Though it promises access to justice, security and protection, it has not served this purpose in India (Galanter, Reference Galanter1983, p. 6). This conflict has created a legal dysfunction.

The displacement of the Gaddi community exemplifies the tension between neoliberal statecraft and rights-based legislation such as the FRA. The legislative framework of the FRA was undermined and subverted by the agenda of economic growth driven by a collusion of neoliberal governance and the private sector. I have discussed above how access to justice and commitment to rights and social justice in the form of progressive legislation have been thwarted by certain inherently incompatible and expanding neoliberal economic ideologies of the government. The marginalisation of the Gaddi community is compounded by juridical alienation, caused by lack of knowledge of customary and formal legal traditions, as outlined in the second section of this paper. This alienation exacerbates the lack of access to justice for Adivasis in India.

Amartya Sen's scrutiny of ‘the intellectual edifice of human rights’ outlined in Section III may help us to understand the attitudes of Indian officialdom in the case of the arrested tribal women in the Chamba case-study. The Chamba women's rights to justice are not realised, since this entitlement, according to Sen's critique, is not ‘sanctioned’ by the representatives of the state, who would be the ‘ultimate legal authority’ to legitimise the rights. The representatives of the state, whether it be the Himachal Pradesh High Court, the police, the Chamba Deputy Commissioner, the MoEF, acting in concert with GMR, the private company, do not ‘value’ these rights of the tribal forest people, whether they be women or men. Since these actors have both the political-economic power and legal knowledge that the tribal communities do not possess, indigenous rights are overridden. Dash and Khotari estimate that, in post-colonial India, roughly 100,000–300,000 forest people have been evicted from their lands and ‘several million more deprived fully or partially of their sources of livelihood and survival’ (Dash and Khotari, Reference Dash, Khotari, Jonas, Suneetha and Subramanian2013, p. 152). The statistics from the National Commission for Scheduled Castes and Scheduled Tribes highlights the impoverishment of Adivasis: 83 per cent of the country's bonded labourers are from Scheduled Tribal peoples and 85 per cent of them live below the official ‘poverty line’ (Bhengra et al., Reference Bhengra, Bijoy and Luithui1999, p. 7). The poverty of the forest tribes is particularly unjust given that ‘90 percent of India's coal mines, 72 percent of the forest and other natural resources, and 80 percent of India's minerals, are in Adivasi lands. Over 3,000 hydroelectric dams are also located in these areas' (Bhengra et al., Reference Bhengra, Bijoy and Luithui1999, p. 7). The profits from this natural wealth have never been shared with the Adivasis who inhabit these lands. These statistics directly correlate with Sen's hypothetical cake example: a community or tribe, already impecunious, outvoted and outmanoeuvred, protesting against further injustice of potential loss of homes, livelihoods and culture but up against the dominant ideology of neoliberal majority improvement. If dispossessed of their lands, the community would be left with nothing, or ‘no cake’. Since there has been no precedent set for the GMR company or the government officials to share any future profits of the hydroelectricity project with the tribal forest peoples, the tribal community would be forced to give up their land without any compensation and surrender their share of the ‘cake’ in the name of majority improvement for economic development.

The modern state's inclination towards a compact with the private sector has created conditions in which the state's role to protect and care for the welfare of its citizens is no longer a priority. In biopolitical discourse,Footnote ²¹ the process of displacing marginalised communities from their lands would be an example of ‘abandonment’ or neglect towards their social and economic rights. The role of modern government is thus questionable, especially if it espouses pastoral care and individual and community well-being. This is in stark contrast to present global neoliberal governance, which has fostered the reality of extreme marginalisation of millions of people (Selmeczi, Reference Selmeczi2009, p. 520).

Lemke's discussion of neoliberal norms provides a theoretical framework for the actions of officialdom and of the market sector in the Chamba District, which links up with the ‘hollow’ aspect of human rights norms with which Sen takes issue. If the Gaddi communities' rights are not valued, sanctioned and implemented by governments or respected by the corporate sector, the emancipatory intent of rights-based legislation is left unrealised. While stressing that capitalism depends on a structured system of values and ethics such as trust, Sen does acknowledge that one of its limitations is that it is unable to counteract a tendency to economic inequality. Sen points out that the market system is dependent on either the law or on ‘mutual trust and an implicit sense of obligation’ (Sen, Reference Sen2001, p. 265). Though the role of the government in the neoliberal world is relatively diminished and market-oriented, the market remains subject to the policies that the government formulates. In order to enforce any of these policies and regulate the market, the government relies on the law, as does the market. Based on this logic, human rights-based approaches can hold governments accountable with respect to human rights treaties that they have legally ratified. In addition, right-based legislation provides support for citizens when they make representations in court or when they step forward in the role of rights holders.

Fights for social and economic rights are increasingly frequent in court cases. This constitutes a positive use of the justice system to change political traditions and societal rules towards social economic rights. However, ‘legal and administrative institutions and processes are not themselves neutral or unproblematic. They are involved in power relationships' (Galligan and Sandler, Reference Galligan, Sandler, Halliday and Schmidt2004, p. 48). The theory that governments could be held accountable if courts were involved in social and economic policy, especially over issues relating to poverty, is belied by the fact that courts are often staffed by professionals representing different ideologies such as ‘conservative elite interests' (Gauri and Brinks, Reference Gauri and Brinks2008, p. vii). Yet positive examples of courts making affirmative rulings on social and economic rights do exists, such as Argentina's 1998 Vicente case, where the state was required to provide medical services and essential medicines to the marginalised communities. Similarly, in another example in India in 1981, the Supreme Court astutely created judicially enforceable rights concerning housing, education and bonded labour from what were formerly constitutional guiding principles, demonstrating their willingness to act upon a moral obligation.Footnote ²² In contrast, the ruling in the Gaddi case illustrates the inconsistency of enforcing social justice norms by governments with neoliberal principles.

As demonstrated in the Gaddi instance, such inconsistencies increase the perceived ‘abandonment’ of community rights by duty bearers. This abandonment may also increase impoverishment of certain sections of the population. Wilkinson and Pickett (Reference Wilkinson and Pickett2011), in The Spirit Level, provide rigorous cross-country evidence that increased impoverishment of a few leads to inequality and a reduced standard of living for the majority of the population.Footnote ²³ This finding is incompatible with the ‘self-care’ strategy of neoliberalism, in which the individual becomes responsible for social ills such as poverty, unemployment and illness, and the onus is shifted away from the greater society and governance (Lemke, Reference Lemke2010, p. 201). Problematic strategies like these as well as the rising inequality around the world and accompanied discontent – products of the neoliberal doctrine – could mean that a pendulum swing away from neoliberal ideologies towards a rights-based and social justice-based idea of the welfare state is a hopeful possibility.