Routledge Readings on Law, Development and Legal Pluralism

Ecology, Families, Governance

Kalpana Kannabiran

• Publisher: Routledge India
• Year: 2022
• Print ISBN: 9781032468471
• eBook ISBN: 9781000607826
• Edition: 1
• Topic: Law
• Subtopic: Administrative Law
• Index: Law

Routledge Readings on Law, Development and Legal Pluralism presents some of the finest essays on social justice, environment, rights and governance. With a lucid new Introduction, it covers a vast range of issues and offers a compelling guide to understanding the harm and risk relating to biodiversity, agro-ecology, disaster and forest rights. The book covers critical themes such as ecology, families and governance and establishes the trajectory of contemporary ecology and law in South Asia. The thirteen chapters in the volume, divided into three sections, trace violence and marginality in the plurality of families and their laws in India, as well as discuss community-based just practices. With debates on development, governance and families, the book highlights the politics and practices of law making, law reform and law application. This multidisciplinary volume foregrounds the politics and plural lives of/in law by including perspectives from major authors who have contributed to the academic and/ or policy discourse of the subject.

This book will be useful to students, scholars, policymakers and practitioners interested in a nuanced understanding of law, especially those studying law, marginality, kinship and indigeneity studies. It will serve as essential reading for those in law, socio-legal studies, environment studies and ecology, social exclusion studies, development studies, South Asian studies, human rights, jurisprudence and constitutional studies, gender studies, history, politics, conflict and peace studies, sociology and social anthropology. It will also appeal to legal historians and practitioners of law, environmentalists and those in public administration.

PART I Questions of Justice

Environment, Ecology, and Disaster

1 Law, Agro-Ecology and Colonialism in Mid-Gangetic India, 1770s–1910s

Nitin Sinha

DOI: 10.4324/9781003299561-1

‘Law, Agro-Ecology and Colonialism in Mid-Gangetic India, 1770s–1910s’ by Nitin Sinha (Gunnel Cederlöf and Sanjukta Das Gupta, eds, Subjects, Citizens and Law: Colonial and Independent India, Copyright © 2017, Routledge, Chapter 8). Reproduced by permission of Taylor & Francis Group.

This chapter looks at fluvial landscape of northern and eastern India – variously called diaras or churs – to understand the process of colonial legal interventions, and how such interventions shaped the meanings of land and rights in this landscape. By doing so, it addresses two core conceptual questions of this volume: first, how do codified laws and regulations converse with legal practices, and how together they shape the parameters of rights and subjecthood; and second, what role does space and spatial practices play in the relationship between law and subjecthood?

According to informed estimates, diaras comprised about 10 to 15 per cent of the total land in different riverine districts of Bihar. The chapter looks at two interrelated aspects: one, a series of riparian laws and regulations to understand the nature of the colonial state’s legal intervention; and two, the rights of raiyats cultivating these lands. The concluding section offers a set of broader reflections on how to understand the history of diara lands that were/are marked by ecological fluidity. In other words, when looked through the triangulated prism of land, law and rights, the chapter attempts to answer the question of a typicality or anomaly of diara lands.

Usually, courtrooms serve as an appropriate site for understanding legal aspects of claim making and dispute settlement. In our case, the ‘nature’ itself was no less important. On-the-spot surveys and measurement, with tents and writing desks of officials pitched in the middle of the fields, tell us that agrarian fields were as much the site of formation of legal injunctions as thanas (police outposts) and kachahris (courtrooms) were. This will also be true for other types of agrarian landscapes. In the case of diaras, measurement acquired a specific significance, as we will see in the text that follows.

To some surprise, the archives of diara settlements (in Bihar, which the author is best familiar with and empirically draws upon) are largely silent on the issue of raiyati (related to actual cultivators) rights. If historical choices cast any bearing on archive formation, the story of fluvial landscape as understood through processes of agrarian control and expansion could be its best example; the immediate fallout of the choice of settling lands with zamindars (landlords) and other agrarian intermediaries in Bihar reflects in a relative absence of raiyats in the records.¹

A quick comparison with eastern Bengal lays bare the role of ecology and state policies that regionally were variegated. In the fluvial eastern Bengal where the land was directly settled with raiyats, the hold of intermediaries was less prominent; as Sumit Sarkar has summarised, ‘A zone of relatively stable and undifferentiated peasant agriculture, with a modicum of prosperity’ emerged.² This was distinct from the cases in western and northern Bengal, where lands were leased by absentee landlords to jotedars and latdars who in turn would employ sharecroppers and labourers.³

Rich alluvial land and cultivation of cash crop (jute) alone, however, do not explain the prosperity or stability of peasant agriculture in eastern Bengal.⁴ These two factors were also present in the case of mid-Gangetic fluvial set-up. They were also present in the region of north Bihar Kosi diaras, where rather than undifferentiated peasantry, a new class of landless labourers emerged (Hill 1990: 14). The fundamental reason of differentiation, it seems, arose because the chur lands of the Bengal delta were already outside the purview of the Permanent Settlement (PS) implemented in 1793, and hence in the wake of the criticism of the PS, they were settled directly with the cultivators. The active policy of the government to directly engage with cultivators led to the weakening of the intermediaries.⁵ One of the paradoxical implications that emerge from this comparison is that in the frontier zone of the Sunderbans the weak colonial state committed to the idea of agrarian expansion and revenue maximisation dealt directly with the raiyats, and hence went deeper into the agrarian structure; in the mid-Gangetic Bihar where the state had a relatively firmer footing, it cut a deal with landed class and intermediaries. The invisibility of actual cultivators (for which I am using the word raiyat) in the archives is an outcome of ecological settings and state policies. The ‘everydayness’ of fluvial shifts together with the state’s preference for landed elites rendered raiyats invisible.

This, of course, is not true for landholding elites. Their disputes on the question of propriety are well reflected in the archives (Bhargava 2007: 183–208; Sinha 2014: 209–237). From time to time concerns regarding raiyats also surfaced. True to the spirit of the PS, the riparian laws were not blind to the existence of raiyats. The PS had envisioned the enactment of such regulations in future that would be necessary for the ‘protection and welfare of the dependent talookdars, ryots, and other cultivators of the soil’.⁶ However, subsequent to the PS, the pro-zamindar inclination meant that the state suspended the rights of the actual cultivators to the custody of ‘customs’ that needed to be determined through a private relationship between them and zamindars. Nonetheless, these very same immemorially established usages now refracted through legal frameworks meant two things: first, the state did not go deeper into agrarian relations to legally define the relationship between zamindars and raiyats; and second, precisely, because it did not do so, it legalised the ‘private’ arrangement between them.⁷

To give one example of law ‘privatising’ the custom, we need to look at the 1833 Circular Order related to alluvial settlement. In the case of land increment to a subordinate tenure due to alluviation, its holder was entitled to the increment ‘provided he pay [sic] an increase of rent [to his superior] according to his engagements, or the established usage that obtains in respect of alluvion where it has taken place’. Further, the undertenant’s increment would be assessed by his superior ‘at such rate as is fair and proper, and conformable to the conditions of his lease or Talook, and to local custom’ (Peters 1838, no. CLXXVII: 287). The privatisation of this arrangement is evident from the unambiguous wording in the order that for revenue and its share of rent, the government (represented by the Collector) will deal only with superiors (maliks, zamindars). Diara lands had become the source of speculative farming for revenue and profit both for local state authorities and for zamindars.⁸ In such a scenario, perhaps, the mix of relationship between law and custom on the one hand and the everydayness of fluvial landscape on the other created conditions for raiyats’ greater exploitation.⁹

One last point on the relationship between diaras and wastelands before turning to the practice of measurement and riparian laws is that the authors of an ethnographic study of char lands of the Damodar River have suggested that these lands were part of reclaimed or cleared lands (baze zameen) exempt from tax (Lahiri-Dutt and Samanta 2013: 62). In early 19th-century accounts, there are clear evidences that raiyats paid relatively lesser rent on cultivating the ‘waste’. According to official wisdom, wilful cultivation of the waste was a strategy to minimise rent payment, which therefore needed to be ‘strictly prohibited’.¹⁰ For instance, in the southern parts of Shahabad district, tenants undertook the cultivation of waste on the payment of low cash rent (Hubbock [1918] 1928: 64). In the mid-Gangetic case, the classificatory categories used by contemporary officials suggest that diaras or churs were not conceptually part of the waste;¹¹ hence, the logic of lesser rent does not apply by default to diara raiyats. For instance, in the northern part of the same Shahabad district, which was prone to annual overflow of the Ganga, rents were high (Hubbock 1918: 13).

Seasonality, measurement and law

Bernardo A. Michael has recently argued that revenue surveys helped the company state to construct a compact sense of ‘territory’ out of the precolonial intermixed and dispersed units of revenue (Michael 2007: 78–95). The role of surveys and measurements in state-making is, of course, crucial and much explored. So far surveying the agrarian field is concerned, which is a lesser-worked area, I intend to go beyond his claim; I wish to argue and demonstrate here that measurement led towards the formation of some form of putative agrarian subjecthood in the juridical sense of the term. Measurement was not only an act that aimed to objectively draw boundaries and prepare the list of fields with their measured area but was also part of the process of record preparation that facilitated proprietorial claims and counterclaims.

I find useful insights from David Ludden’s account in thinking about measurement as a point at which ‘managerial empiricism’ (to borrow his term) intersects with the agrarian field (Ludden 1999: 7). Agrarian space is one which is appropriated by political and social formations, and hence the structures and practices of those appropriations could possibly be one of the gateways to write the social ...

Table of contents

• Cover
• Endorsement Page
• Half-Title Page
• Routledge Readings
• Title Page
• Copyright Page
• Contents
• List of contributors
• Acknowledgements
• Introduction: The Sites and Possibilities of Interdisciplinary Law
• Part I Questions of Justice: Environment, Ecology, and Disaster
• Part II Families in Law: Property, Custom, and Violence
• Part III Plural Domains of Law and Governance