Negotiating Law

Chapter three elaborates the general legal debates in Britain and the British Empire, and specific and different positions through which property and land rights were argued over in the Nilgiris. Such debates came to have significant consequences for land law as it was applied in British India and shows the central position of property in the global expansion of the British Empire. The chapter distinguishes two contradictions that were common in the various colonial investigations, reports, and parliamentary debates. One concerns rights in land and resources where there were different positions about whether to privilege the immemorial rights of dwelling on and owning land, or the absolute rights of a sovereign ruler. The other debate that caused conflict related to the utility of nature and targeted specifically the use of nature for pastoralism or for settled cultivation. The chapter shows how both debates had crucial consequences for the codification of legal rights in land. It enquires into how the right of the Toda to own land was questioned and, over time and with the increasing involvement of European capital and control of the Nilgiri Hills, such ‘rights’ turned into the much weaker ‘privilege’. In the process of codifying in written law people’s rights to access and use nature, different communities of people were identified in relation to particular landscapes and their rights were determined by their perceived historical relationship to the land.

A Narrative on the Toda and Its Problems

Chapter two enquires into the contrasting narratives of the Nilgiri landscape and the people inhabiting it. It discusses the projections of romantic and progressive ideals onto the mountain landscapes and the identification of these landscapes with familiar European environments in idealised tropes. By following the many ethnographic and anthropological studies of the Toda and the Badaga communities over time, the chapter enquires into the changing narratives, from romantic ideas about the ‘herders’ living in an organic relationship with nature to the perceived threat of wilderness in people lacking civilisation and self-control. This shift in the depiction of people and places in the Nilgiri Hills is discussed in view of increasingly utilitarian visions among the British administration for the transformation of the place into the British colonial economy and rule. Within this vision, the two communities that received the most attention—the Toda and the Badaga—were placed at opposite ends of development. Locating the discussion of the Nilgiris in the historiography of Adivasi communities in India, the chapter discusses how the Toda were deemed to belong to an undeveloped past and, up to the mid-19th century, the Badaga were seen as the entrepreneurial cultivator who would carry progress into agriculture.

Histories of Rights in Nature

This is a study of the formation of legal rights in nature during British colonial rule in South India. Though focusing on a limited geographical area, it has relevance for land law within the colonies of the British Empire. It targets specifically rights of access and ownership of land in territories dominated by indigenous communities, whom the British administration defined as ‘tribal’. Chapter one introduces the larger theme and contextualises the Nilgiri Hills as the location of a close empirical study of land conflicts during its most intense period until the first more encompassing code of rights in nature in the Nilgiris in 1843. The chapter further juxtaposes contemporary debates on how the past and history have been a battleground for codifying such rights. Here, the chapter contrasts the production of history with memory wherein the critique of Eurocentrism has challenged long-term legacies of historismus. Oral history and memory that have been argued to be the privileged arena of subaltern and colonised populations are considered in view of written history being originally oral testimony. Other debates, foundational for the formation of legal codes, have targeted the impact of evolutionary science on history and the role of the resulting discipline as both an imperial and a modern project.

Towards an Environmental History of Law

The concluding chapter brings together different aspects necessary for analysing the relationship between human action and nature in the process of perceiving, disputing and codifying rights in nature. It targets the many transformative visions for a particular landscape, the battle between interests pursuing different legal principles that underpinned the formation of codes, the influence of scholarly thought on legal debates and, finally, in a close empirical study, it focuses the trajectory of land conflicts during its most intense period until the first more encompassing code of rights in nature in the Nilgiris in 1843. Thematically, it discusses the importance of acknowledging the competing interests of individual absolute property and government sovereignty, and it points to the necessity to focus the process of making law in contrast to treating law as a given. A major emphasis is given to the specific characteristic of people’s resistance against colonial encroachments in a situation of multiple authority and internal divisions among the indigenous communities. Seen in terms of negotiation, it is a strategy of acknowledging, influencing and making use of the other party’s domain of authority—a strategy of keeping confrontation at a minimum level and making gains without open conflict. Land conflicts were characterised by multiple layers of authority. Thereby, it puts forward a complex and more nuanced situation of conflict and negotiation than the previously common binary of the colonial and the colonised. Both these domains were interspersed by conflicts and oppositions, and alliances cut across such imaginative divides. Lastly, the problem of defining regions of regional history is reassessed and revised against the north–south India divide as well as the analytical hill–valley polarisation. Thus four key arguments are derived from the study and brought into a discussion of an environmental history of law. As the study makes clear, the Nilgiris, in spite of being a small region in the hills, were a site where large even global issues were at stake.

Local Politics and Regional Confrontations

Chapter five looks in detail at the conflicts between two Toda settlements and the British Madras Presidency government. These conflicts deepened in the late 1830s and lasted until the early 1840s; they were to form the basis for the first regulation of land grants and Toda rights in the Nilgiri Hills. The chapter focuses particularly on how the British administration tried to create a rule by record-of-rights, while negotiating forcefully, though not always successfully, in pursuit of their intension of establishing sovereign rule. In the process, the chapter shows, the bureaucracy itself became both a tool of power and an arena for contesting principles relating to rights, not only in land in its material sense, but in nature for both the material and non-material values attached to it. It further makes clear how integrated people appear to have been into a state’s or a large bureaucracy’s way of functioning. The chapter explains how seeing law as shaped historically and in situ—reflecting the interaction of people and environments in the colonies rather than being imposed from a distant European metropole—means to take new approaches to grounded and emplaced histories of the global phenomena of colonialism.

Perceptions of Land and People

The fourth chapter brings out how empirical sciences, particularly ethnology, merged with historically specific interests in the hills, and how various settler and government claims, through ethnological treatment of people, justified the acquisition of land. Thus the Nilgiris was made into a racially divided space. It was subsequently incorporated into the elaboration of legal rights, to be reinterpreted in terms of the specific rights acknowledged for each racially defined community. Liberal political thought and race theory combined in this way to create law, which then became particularistic rather than universal. The chapter shows the close relationship between the early ethnographers reporting on the communities in the hills and the scientists who developed increasingly complex racial paradigms of the human in natural history. It also elaborates in detail how the development of ethnology and race theory entered into the legal domain and how the two reflected the increasingly strong hold of the colonial authorities of the Nilgiris. Ethnographical arguments were regularly used in the administrators’ arguments for or against absolute rights in land for the Toda.