Indian Law Review

ISSN: (Print) (Online) Journal homepage: www.tandfonline.com/journals/rilw20

“Can you ban the bees from the honey?”: exploring

an integrated labour law and geographical
indications approach for protecting the rights
of forest-dwelling communities over non-timber
forest produce

Sophy K.J. & Devanshi Saxena

To cite this article: Sophy K.J. & Devanshi Saxena (11 Nov 2024): “Can you ban the bees from
the honey?”: exploring an integrated labour law and geographical indications approach for
protecting the rights of forest-dwelling communities over non-timber forest produce, Indian
Law Review, DOI: 10.1080/24730580.2024.2427549

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INDIAN LAW REVIEW
https://doi.org/10.1080/24730580.2024.2427549

RESEARCH ARTICLE

“Can you ban the bees from the honey?”: exploring an

integrated labour law and geographical indications approach
for protecting the rights of forest-dwelling communities over
non-timber forest produce
Sophy K.J.a and Devanshi Saxenab
a
Centre for Labour Law Research and Advocacy, National Law University, Delhi, India; bFaculty of Law,
University of Antwerp, Antwerp, Belgium

ABSTRACT ARTICLE HISTORY

In this article, we study the fragmented approach of two Indian Received 29 August 2023
statutes, namely, the Scheduled Tribes and Other Traditional Forest Revised 21 May 2024
Dwellers (Recognition of Forest Rights) Act 2006 (“FRA 2006”) and Accepted 26 June 2024
the Geographical Indications of Goods (Registration and Protection) KEYWORDS
Act 1999 (“GIA 1999”). The article critically examines the labour law Forest rights; forest
approach under the FRA 2006 and intellectual property ownership governance; geographical
under the GIA 1999 with a specific focus on the production and indications; right to
commercialization of non-timber forest produce. The analysis leads livelihood; tribal sovereignty;
to an argument for an integrated approach that starts with recog­ cooperative ownership
nizing the agency of the communities, followed by guaranteeing
protections under the labour rights approach and integrated pro­
tection through GIs. The integrated approach would facilitate coop­
erative experiments that go beyond strict private and public law
distinctions. This can offer sustainable livelihood opportunities for
forest-dwelling communities.

1. Introduction
In his renowned book on rural India, P Sainath discusses the plight of the Koya tribe in
Orissa, who were denied access to bamboo, the “oxygen” to their social and economic life,
due to a restrictive interpretation of forest laws.1 The tribe uses traditional methods for
ethical bamboo harvesting, that is, harvesting in a way that supports regeneration. The
Orissa Forest Development Corporation denied access to this “traditional and controlled
activity”,2 but agreed to grant licences to companies for bamboo extraction, ironically, for
“eco-friendly” paper production. The locals rightly asked, “Can you ban the bees from the
honey?”3 Approaching tribal forest land as capital creates a shift from commons to
property in a manner that harms human rights.4 In addition, the colonial dichotomy

Devanshi, Saxena [email protected] Faculty of Law, University of Antwerp, City Campus,

Venusstraat 23, Antwerp 2000, Belgium
1
P Sainath, Everybody Loves a Good Drought: Stories from India’s Poorest Districts (Penguin Books 1996) 115–120.
2
ibid 117.
3
ibid 119.
4
Samar Basu Mullick, ‘Commons to Capital: With a Special Reference to the Mundas of Jharkhand’ [2011] 41 Social Change
381.
© 2024 Informa UK Limited, trading as Taylor & Francis
2 S. K.J. AND D. SAXENA

of human versus environment embodied by the human rights regime has enabled social
and environmental injustice,5 thus necessitating a different approach. This article exam­
ines the fragmented legal protection of the livelihood rights of forest-dwelling commu­
nities in India by focussing on the “multiple regime complex”6 concerning the
production and commercialization of “minor forest produce” defined under Section 2
(i) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest
Rights) Act 2006 (“FRA 2006”) in India.
The “tragedy of commons” discourse on how shared resources contribute to over­
consumption, underinvestment and depletion of resources7 was extended to the protec­
tion of goods identified or associated with geographical names or Geographical
Indications (“GIs”).8 A GI is an intellectual property right associated with local commu­
nities which operates as collective property rights that embed cultural heritage. It’s place
on the spectrum between purely private and purely public goods differs in different
jurisdictions.9 However, the propertization of products with geographical names or the
process of creation of such GIs, be it a club good or an impure public good,10 raises
concerns about the governance of underlying common property resources. Limiting
rights over GI to certain communities in a geographical area itself has become
a conflict in certain cases.11 In this vein, Rosemary J Coombe and S Ali Malik have
cautioned that GIs can reinforce and legitimize colonial power hierarchies.12
In the Indian context, Forest Dwellers hold significant (traditional) knowledge about
forest produce. Their source of forest origin is also used as a marketing strategy, for
example, use of labels such as “forest products”, “ethnic” and “organic” showing a link to
their cultural heritage and values of production.13 The promotion of GI registration of
forest goods by the state has given hope to local communities for economic mobility

5
Usha Natarajan, ‘Who Do We Think We Are?: Human Rights in a Time of Ecological Change’ in Usha Natarajan and Julia
Dehm (eds), Locating Nature (1st edn, Cambridge University Press 2022).
6
Kal Raustiala and David G Victor, ‘The Regime Complex for Plant Genetic Resources’ [2004] 58 International Organization
277.
7
Garrett Hardin, ‘The Tragedy of the Commons: The Population Problem Has No Technical Solution; It Requires
a Fundamental Extension in Morality’ [1968] 162 Science 1243.
8
In India, GIs are defined under s 1(e) of the GIA 1999 as ‘an indication which identifies such goods as agricultural goods,
natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or
locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable
to its geographical origin and in case where such goods are manufactured goods one of the activities of either the
production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the
case may be’.
9
See Dev Gangjee, Relocating the Law of Geographical Indications (Cambridge University Press 2011) 165; Bertil Sylvander,
Anne Isla and Frédéric Wallet, ‘Under What Conditions Geographical Indications Protection Schemes Can Be Considered
as Public Goods for Sustainable Development?’ in André Torre and Jean-Baptiste Traversac (eds), Territorial Governance
(Physica-Verlag HD 2011).
10
A club good in economics is a good that is partially excludable and partially rivalrous. ‘ . . . the membership of the club is
voluntary, it involves sharing of benefits, without excluding partial rivalry, and the club has an exclusion mechanism at
some cost’. Thierry Coulet, ‘Assessing the Economic Impact of GI Protection’ in Michael Blakeney and others (eds),
Extending the Protection of Geographical Indications: Case Studies of Agricultural Products in Africa (Routledge 2012) 101.
11
Diego Rinallo and Valentina Pitardi, ‘Open conflict as differentiation strategy in geographical indications: the Bitto
Rebels case’ [2019] 121(12) British Food Journal 3102.
12
Rosemary J Coombe and S Ali Malik, ‘Rethinking the Work of Geographical Indications in Asia: Addressing Hidden
Geographies of Gendered Labor’ in Irene Calboli and Wee Loon Ng-Loy (eds), Geographical Indications at the Crossroads
of Trade, Development, and Culture (1st edn, Cambridge University Press 2017).
13
Shovan Dattagupta, ‘Traditional Processing of Non-Timber Forest Products in Cachar, Assam, India’ [2014] 13 Indian
Journal of Traditional Knowledge 427; Prashanti Pradhan and Mithilesh Singh, ‘Role of Non-Timber Forest Products
(NTFPs) in Sustaining Forest-Based Livelihoods: A Case Study of Ribdi Village of West Sikkim, India’ [2019] 18 Indian
Journal of Traditional Knowledge 595.
 INDIAN LAW REVIEW 3

using GIs. However, the production of forest goods depends upon their rights of own­
ership over forest produce. The right to access and proprietary rights over forest
commons are regulated through a labour enactment, namely, the FRA 2006 in India. It
is evident from a combined reading of the FRA 2006 and the Geographical Indications of
Goods (Registration and Protection) Act 1999 (“GIA 1999”), that there is a crucial
interdependency between both enactments for the fuller realization of economic rights
of tribal communities, which will be explained in the article.
The article explores two legal approaches, hitherto seen separately, that show some
promise for the protection of the rights of Forest Dwellers but also have their respective
demerits and challenges. Firstly, we explore the FRA 2006, which offers a labour rights
approach to owning non-timber forest produce and to producing ethnic forest products.
The law includes stewardship rights, customary community rights, as well as access rights
to biodiversity, intellectual property and traditional knowledge, enforced through “Gram
Sabhas” (“GS”).14 This is a welfare-oriented approach that enables cooperative govern­
ance experiments. Another law that protects such collective, community rights is the GIA
1999. GIs can create collective monopolies through creative and flexible governance
structures over products that have an exclusive link with their geographical origin.
However, it is a limited right if it does not enhance the capabilities of the direct
producers––the forest-dwelling communities themselves, for example, self-governance,
inclusion of relevant labour entitlements such as social production and welfare rights and
environmental protections in GI specifications.15
In this article, we critically analyse these approaches to argue that the integration of the
two enactments, that is, the FRA 2006 and the GIA 1999, provides an opportunity for the
economic empowerment of forest-dwelling communities. Therefore, the article proposes
an integrated approach that enables the recognition of community rights to access minor
forest produce under a labour law approach (within the FRA 2006), and the protection of
collective intellectual property rights (through the GIA 1999) by using the flexibilities
under the legislation for their optimum benefit. Using doctrinal sources combined with
secondary empirical studies and critical legal analysis, we show that there are deficiencies
in the implementation of both these statutes which result in a failure to fulfil their
respective rationales. Therefore, a different approach is required to promote the liveli­
hood of forest-dwelling communities.
In Section 2, we first explain the normative foundations under the FRA 2006, which
includes a livelihood approach for forest-dwelling communities. In Section 3, we explain
the rights in detail. In Section 4, we discuss the experiment with the realization of the
powers of the GS in Gadchiroli in Maharashtra. In Section 5, we describe the general
challenges and failures of the FRA 2006, whilst in Section 6 we explore the possibilities
under the FRA 2006. In Section 7, we explain the GI protection approach from a global
perspective and a national perspective under the GIA 1999 The labour law approach in
the FRA 2006 (as explained in the section below) and the GI protection under the GIA

14
FRA 2006, s 3 and s 6.
15
Michael Blakeney, ‘Geographical Indications and Environmental Protections’ [2017] 12 Frontiers of Law in China 162;
Nicole Aylwin and Rosemary J Coombe, ‘Marks Indicating Conditions of Origin in Rights-Based Sustainable
Development’ [2014] 47 UC Davis Law Review 753; Madhavi Sunder, ‘Intellectual Property and Development as
Freedom’ in Neil Weinstock Netanel (ed), The Development Agenda: Global Intellectual Property and Developing
Countries (Oxford University Press 2008).
4 S. K.J. AND D. SAXENA

1999 come together in Section 8, where we explain the integrated model. Finally, Section
9 presents our conclusions, including hopes for an integrated law and governance model
for minor forest produce.

2. The labour law approach: the FRA 2006

The FRA 2006 was enacted as a redressal for “historical injustice” practised under
different political traditions towards tribals and Forest Dwellers.16 The legislative inten­
tion can be read as protecting the forest-dwelling communities’ right to livelihood,
recognizing their dependence on forest commons and preventing enforced relocation17
due to state-led developmental interventions. The preamble of the legislation contains
a labour rights approach, stating that this Act recognizes the right to occupation of tribals
and Forest Dwellers over forest land and resources. Savyasachi argues that the FRA 2006
is designed on the principles of labour teleology by undermining the foundational
position of forests, and instead, framing it as an object for the subjects, that is, margin­
alized tribal and forest-dwelling communities, to earn their value of labour.18
The labour approach has evolved from a Marxian “value of labour” to a “welfare
approach” and finally to “decent work”, under different periods of development.
Facilitating productive work has long been the central question in labour theory.19
However, the extraction of labour power for profit maximization, especially from the
weaker sections, has created vulnerable and precarious labour categories.20 The forms of
exploitation are reproduced in new ways,21 not only affecting the capacity to produce but
also the quality of life surrounding the ability to earn and lead a fulfiling life. The term
“durable inequality” used by Charles Tilly,22 refers to the percolation of economic
deprivation into social, cultural, political and other spheres, creating a continuum of
lack of mobility in life. An expanded understanding of work, capabilities to work and
recognition of work has raised critical questions of justiciability and equity in labour
rights.
The labour approach encompasses both economic rights and human rights
approaches. Hugo Sinzheimer’s economic sociology analysis of contract law revealed
a dogmatic understanding of contractual equality between employers and
employees.23 His argument that the employment relationship is based on hierarchy
and subjugation, introduced an extra-legal foundation that became the basis for
systematization of labour law. Otto-Kahn-Freund further developed this approach
arguing for legitimization of the collective contract through collective bargaining
within the realm of labour law.24 Legal validation of collective bargaining created
a level playing field between the workers and employers for democratic decision
16
FRA 2006, Preamble.
17
ibid [4].
18
Savyasaachi, ‘Forest Rights Act 2006: Undermining the Foundational Position of the Forest’ [2011] 46 Economic and
Political Weekly 55.
19
Theodore W Schultz, ‘Investment in Human Capital’ [1961] 51 The American Economic Review 1.
20
Benjamin Selwyn, ‘Poverty Chains and Global Capitalism’ [2019] 23 Competition & Change 71.
21
Jan Breman, ‘Neo-Bondage: A Fieldwork-Based Account’ [2010] 78 International Labor and Working-Class History 48.
22
Charles Tilly, Durable Inequality (University of California Press 2009).
23
Ruth Dukes, ’Hugo Sinzheimer and the Constitutional Function of Labour Law’ in Guy Davidov and Brian Langille (eds),
The Idea of Labour Law (Oxford University Press 2011).
24
Paul Davies and Mark Freedland, Kahn-Freund’s Labour and the Law (3rd edn, Stevens 1983).
 INDIAN LAW REVIEW 5

making. The expansion of the legal framework using interdisciplinary evidence form
the basis of labour law’s autonomy.25 The subject’s jurisprudential foundation rests
on creating equity in labour relations and facilitating work devoid of systemic and
structural interventions. The labour approach now includes discussions on facilitat­
ing work and how the politics of location26 and overlapping identities limit an
individual’s full potential at work. The framework of “decent work” incorporates
the anti-discrimination principle and collective character of labour relations.27 This
social justice-oriented labour law framework is a peculiar feature of FRA, and it
contains the right to land and labour and legitimizes the social institution, Gram
Sabha, under the FRA.
The Constitution of India 1950 (“the Indian Constitution”) has adopted a broader
approach to protect labour in India based on the “livelihood” approach.28 An integrated
reading of the livelihood approach with Article 21 of the Indian Constitution has ensured
the right to dignity at work.29 The livelihood approach, derived from the human rights
approach, covers the “creation of capabilities, assets and other activities required for
a means of living”.30 This capability approach to labour31 is discussed at length to analyse
whether there should be more focus on creating opportunities for accessing the legal
benefits ensured under labour laws.32 Out of the two approaches, the livelihood approach
is much broader in the labour constitutionalism framework, going beyond ensuring work
and creating a spatiality to ensure the sustainability of work. The responsibility is cast on
the state and its institutions to ensure means of living through work or to ensure equal
assets that ensure means of living.
We argue that the FRA 2006 articulates a livelihood approach as it not only talks about
the right to occupation and access to common resources for forest-dwelling communities
but also recognizes their stewardship rights,33 customary rights,34 and the sustenance of
their work through rights to ancestral land and proprietary rights over forest produce.
While acknowledging the dilution of ownership rights due to the segregation of forest
products and the procedural rigour required to prove rights under the FRA 2006, we
argue that the legalization of the social institution, that is, the GS, to realize community
forest rights, provides a normative foundation to ensure the rights of marginalized
communities.

25
KW Wedderburn, ‘Labour Law and Labour Relations in Britain’ [1972] 10 British Journal of Industrial Relations 270.
26
Adrienne Rich, ‘Notes Toward a Politics of Location’ in Reina Lewis and Sara Mills (eds), Feminist Postcolonial Theory:
A Reader (Edinburgh University Press 2003).
27
David Bescond, Anne Châtaignier and Farhad Mehran, ‘Seven Indicators to Measure Decent Work: An International
Comparison’ [2003] 142 International Labour Review 179.
28
Indian Constitution, art 39(a).
29
Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180.
30
Leo de Haan, ‘The Livelihood Approach: A Critical Exploration’ [2012] 66 Erdkunde 345, 347.
31
Amartya Sen, The Standard of Living (Geoffrey Hawthorn ed, Cambridge University Press 1988); Brian A Langille, ‘Core
Labour Rights – The True Story (Reply to Alston)’ [2005] 16 European Journal of International Law 409; Judy Fudge, ‘The
New Discourse of Labour Rights: From Social to Fundamental Rights?’ [2007] 29 Comparative Labor Law and Policy
Journal 1; Martha C Nussbaum, Creating Capabilities: The Human Development Approach (Harvard University Press 2013).
32
Virginia Mantouvalou, ‘Labour Rights in the European Convention on Human Rights: An Intellectual Justification for an
Integrated Approach to Interpretation’ [2013] 13 human Rights Law Review 529.
33
Nathan J Bennett and others, ‘Environmental Stewardship: A Conceptual Review and Analytical Framework’ [2018] 61
Environmental Management 597.
34
Lun Yin, ‘Traditional Ecological Customary Law for Conservation and Sustainability in Biodiversity’ in Gopal Shukla and
others (eds), Sustainable Development, vol 8 (IntechOpen 2023).
6 S. K.J. AND D. SAXENA

3. The legislative scheme and legal entitlements under the FRA 2006
The FRA 2006 was enacted to remedy the continuum of denial of rights to tribals,
including land rights and access to forest resources, for centuries under colonial forest
laws. The forest governance regime under the Indian Forest Act 1927, designates forests
as protected and in turn, treats forest-dwelling communities as encroachers, depriving
them of their livelihood that is dependent on forest resources.35 Additionally, displace­
ment on account of development projects became a constant threat to the forest-dwelling
population. The impoverishment and precarity, without reliable assets, led to
a continuum of vulnerability that hindered mobility for generations. Civil society move­
ments such as the Campaign for Survival and Dignity (“CSD”), the National Forum of
Forest Peoples and Forest Workers (“NFFPFW”), the Lok Sangharsh Morcha-Gujarat,
Jan Sangharsh Morcha – Madhya Pradesh and National Alliance for People’s Movement
(“NAPM”) Maharashtra strongly defended the human rights of the tribals and demanded
an FRA 2006-like legislation to ensure their rights to land and access to forest resources.36
The legislative intention of the FRA 2006 is to recognize the scheduled tribes and other
Forest Dwellers as stewards of the forests and encourage their participation in the
management and conservation of forests. This rationale of the Act faced strong opposi­
tion from environmentalists as well as the Ministry of Environment and Forest who
argued that the management of forests by Forest Dwellers would damage the already
scarce forest cover.37 One of the criticisms against the FRA 2006 is its prioritization of the
labour approach over ecological preservation and that it succumbs to the logic of
capitalism by viewing forest as a production unit. This is argued by Savyasachi as follows:

FRA cannot look beyond what it posits which is rapid profit, capital accumulation and the
production of a reserve army of labour on the one hand, and deep ecological crisis on the
other. It is not able to see that every effort to deal with this crisis is integral to the cycle of
capital accumulation. Capital establishes its immorality and invincibility. It produces and
reproduces complex cycles of production and reproduction of violence at all levels of social
existence.38

The FRA 2006 ensures a livelihood approach that protects the rights of Forest Dwellers
over their land and allows them to continue occupying their land. Hence, it grants them
the right to collect minor forest produce and to engage in their traditional occupation of
collection or exchange of goods and production of other goods.
One of the challenges identified under the FRA 2006 is the definition of “other Forest
Dwellers”.39 The criterion to qualify as “other Forest Dwellers” is the inhabitation in the
forest for three generations, that is, 75 years, according to the definition. Further, the
distrust imposed through the procedures prevents this marginalized population from
accessing their livelihood resources, despite their continuous dependence on forests.40
35
CR Bijoy, ‘Forest Rights Struggle: The Making of the Law and the Decade After’ [2017] 13 Law, Environment and
Development Journal 73.
36
Indranil Bose, ‘How Did the Indian Forest Rights Act, 2006, Emerge?’ <http://re.indiaenvironmentportal.org.in/files/
forest%20rights%20act%202006-emerge.pdf> accessed 22 August 2024.
37
Lovleen Bhullar, ‘The Indian Forest Rights Act 2006: Critical Appraisal’ [2008] 4 Law, Environment and Development
Journal 20.
38
Savyasaachi (n 19).
39
FRA 2006, s 2(o).
40
Indrani Sigamany, ‘Land Rights and Neoliberalism: An Irreconcilable Conflict for Indigenous Peoples in India?’ [2017] 13
International Journal of Law in Context 369.
 INDIAN LAW REVIEW 7

For instance, while Rule 13 of the Scheduled Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Rules 2007 (“Rules 2007”) empowers the GS
and the Sub-Divisional Level and District Level Committees to consider any evidence to
determine their rights, the logic of proving inhabitation is beyond the understanding of
the forest-dwelling communities.41 Hence, better mechanisms need to be introduced to
identify the misuse or misappropriation of resources instead of distrusting and alienating
communities from their spaces.
Section 3 of the FRA 2006 lays down 14 types of rights, which had existed before as
part of their customary rights, both individual forest rights (“IFRs”) and community
forest rights (“CFRs”). The IFRs include the right to hold and live on forest land that is
under cultivation and homesteads on their land.42 The CFRs include the right of the
communities to use and access forest land and forest resources.43 They further include
proprietary rights over minor forest produce, resources from water bodies within the
forest, right to graze animals, the right to community tenures of habitat for primitive
tribal groups, right to pattas, leases or grants, and the right to settlement and conversion
of forest villages into revenue villages. Additionally, there are stewardship rights to
protect, regenerate, conserve, or manage any community resource, access to traditional
knowledge resources, and in situ rehabilitation in case of illegal eviction.
While the rights perspective under the FRA 2006 is lauded for combining the liveli­
hood approach with the remedial approach for historical injustices towards forest-
dwelling communities, claiming these rights under this Act is not free from bureaucratic
procedures. Under Chapter IV of the Act, from Section 6 onwards, the procedure for
vesting forest rights is elaborated upon. While the GS initiates the process of determining
the rights of the communities, the rights resolution passed by the GS must be mandato­
rily forwarded to the Sub-Divisional Level Committee (“SDLC”). According to the Rules
2007, a Forest Rights Committee is selected from the members of the GS to investigate
the claims.44 Based on their findings, GS prepares the resolution. The SDLC, after
examining the resolution passed by the GS, prepares a record of the forest rights and
forwards it to the District Level Committee (“DLC”) for the final decision on grant of
forest rights. The decision of the DLC is treated as final and binding. The process of
recognition and vesting of forest rights is further monitored by the State Level
Monitoring Committee (“SLMC”) appointed by the state government. This committee
consists of officers from the Department of Revenue, Forest and Tribal Affairs and three
members of Panchayati Raj institutions, of which two shall be from Scheduled Tribe.45
The procedure described above lays down the bureaucratic processes that each
applicant has to follow in order to access their rights under the FRA 2006. Despite
a stage-by-stage verification and determination of rights, the positions of the chair in
both the DLC and SDLC are allotted to government officials. In such bodies, where
officials are in the majority, the community members become mere spectators due to the
lack of clarity on the weightage of the power that each one holds and other socio-cultural

41
Bhullar (n 38) 26.
42
FRA 2006, s 3(1)(a).
43
Tapas Kumar Sarangi, ‘The Forest Rights Act 2006 in Protected Areas of Odisha, India: Contextualizing the Conflict
between Conservation and Livelihood’ [2017] 20 Asia Pacific Journal of Environmental Law 180.
44
FRA 2006, s 6.
45
ibid.
8 S. K.J. AND D. SAXENA

factors. Sujeet Kumar finds in his empirical research in three districts of Himachal
Pradesh that in 2018, 626 claims under FRA 2006 were brought in Chamba, 525 in
Kinnaur, and 56 in Sirmour. Only a small proportion of the claims that were submitted –
about 1%—were recommended to DLCs in Chamba and Kinnaur.46 He argues that the
official evidence displays a pattern of “intentional ignorance” in recognizing the rights of
adivasis and other Forest Dwellers.47 Lack of documentary proof to the satisfaction of the
authorities is a further challenge faced by the communities in proving their claims under
the FRA 2006.

4. Gadchiroli: a success model under FRA

Many success stories are being reported from the regions where local communities are
involved in the watch and vigil of forests and earn their livelihood from forest produce.48
It is reported that in Gadchiroli district in Maharashtra, 66% of community forest rights
claims are already processed.49 It is because of the joint efforts of the communities and
government officials, they are able to commercialize their products based on forest
resources and earn their livelihood.50 The GS’s independence in trading and harvesting
bamboo and other non-timber forest produce or minor forest produce has helped the
communities maintain their standard of living and sustain their livelihoods. The GS took
the initiative to create efficient business management practices, resulting in the direct
trading of bamboo products that increased their earnings by 90%. The proceeds are
divided between the labourers and their GS in a 60:40 ratio.51 This trading initiative by
the GS is also appreciated by the wholesale buyers, as they find it easier to do business
with the GS than with the Forest Departments.52
In Gadchiroli, especially in Mendha Lekha, Korchi, and Korkheda, the GSs are self-
governing institutions by the villagers. They work on the principle of consensus, demon­
strating the primacy and efficacy of true local governance.53 Milind Bokil and Satish
Gokulwar explain the management practice of the GS of Mendha Lekha and its replica­
tion in Korchi and Korkheda. These GS act as “body corporate” with a permanent
account number (“PAN”) and a tax deduction and collection account number (“TAN”)
from the Income Tax Department, Government of India. After acquiring forest rights,
they sell bamboo and receive proceeds from contractors.54 The success of these GSs

46
Sujeet Kumar, ‘Forest Rights Act Enables State Control of Land and Denies Most Adivasis and Forest Dwellers Land
Rights’ [2020] 55 Economic and Political Weekly Engage 2 <https://www.epw.in/engage/article/forest-rights-act-state-
appropriation-land-rights> accessed 15 January 2024.
47
ibid.
48
Raja Muzaffar Bhat, ‘From Barren Land to Thick Jungle’ Kashmir Observer (28 February 2022) <https://kashmirobserver.
net/2022/02/28/from-barren-land-to-thick-jungle/> accessed 22 August 2024.
49
Avijit Chatterjee, Mrinalini Paul and Nikhila Chigurupati, ‘Better Livelihood, Better Ecology – a Case Study in Gadchiroli,
Maharashtra’ (learngala) <https://www.learngala.com/cases/32cab038-27bf-4f79-bde4-3b69741e61e9/> accessed
15 January 2024.
50
ibid.
51
Centre for Civil Society, ‘Forest based Bamboo trade in Mendha Lekha and Jamguda’ [2015] Working Paper Series
<https://ccs.in/sites/default/files/2022-11/research-forest-based-bamboo-trade_0.pdf> accessed 8 May 2023.
52
Chatterjee, Paul and Chigurupati (n 50).
53
Milind Bokil and Satish Gogulwar, ‘Gram Sabha as a Body Corporate: The Emerging Reality’ [2023] 58 Economic and
Political Weekly 35.
54
ibid.
 INDIAN LAW REVIEW 9

prompted the Maharashtra Government to recognize GS as the nodal agency to imple­

ment works under the Mahatma Gandhi National Rural Employment Guarantee Act.55
Additionally, the GS engages with the NGOs and biodiversity conservation move­
ments to ensure that bamboo is sustainably managed, and that resource use is
regulated.56 In this context, the authors argue for an outcome-oriented approach where
communities can sell their products in the market and retain value from sale proceeds
through community business institutions, like the GS.
The Korchi area of Gadchiroli district also witnessed a significant increase in trading
of tendu leaves with the intervention of the GS. A cluster of approximately 80 villages has
been managing the tendu leaves sale through a federation of GSs. This involves the
auctioning of tendu leaves and directly dealing with the contractors who, upon procure­
ment, sell the tendu leaves to end-user manufacturer companies that produce Indian
cigarettes (beedis). Not only does this employ labourers on a daily wage basis, but funds
from the sale proceeds are also saved for the welfare of labouring communities. From this
corpus, after the seasonal work of tendu collection and production, money is also
available for agriculture. This limits the exploitation of the communities at the hands
of moneylenders and private banks. Forest-dwelling communities are experiencing lower
debt burden after the interventions by the GS in trading and business activities.
A study by Avijit Chatterjee, Mrinalini Paul and Nikhila Chigurupati states that the
good returns from tendu trade help the communities strategize forest conservation,
invest in bamboo harvesting practices and provide them full-time employment through­
out the year in various forest-based productions.57 In Bortola, villagers report that they
can get full-time employment from tendu and bamboo work, year-round, without
needing to seek alternate employment.58 This ensures their livelihood security.
The case of Bortola reveals a successful model that can be replicated for better
implementation of the FRA 2006, and to enhance the capabilities of the communities.
Therefore, the GS as a body corporate, and as a customary institution helps people
establish control over their day-to-day lives. The FRA 2006 has accelerated the potential
of using GS as a body corporate and this is explicitly mentioned in Section 5A of Madhya
Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam 1993.59 While the successful
model under the FRA 2006 in Gadchiroli argues for empowering the GS to become
more proactive in trading and business management, there are other institutional
challenges around the Act. These are explained in the next section.

55
Vijay Pinjarkar, ‘CFR Gram Sabhas Get Nod to Do MGNREGA Works’ The Times of India (28 December 2021) <https://
timesofindia.indiatimes.com/city/nagpur/cfr-gram-sabhas-get-nod-to-do-mgnrega-works/articleshow/88531693.cms>
accessed 14 January 2024.
56
Both these aspects will be drastically limited by the recent amendments to the Forest Conservation (Amendment) Act
2023, and Biological Diversity (Amendment) Act 2023, which limit the powers of the GS.
57
Chatterjee, Paul and Chigurupati (n 50).
58
ibid.
59
Constitution and Incorporation of Gram Sabha, s 5A states: ‘There shall be a Gram Sabha for every village. The Gram
Sabha shall be a body corporate by the name specified therefore, having perpetual succession and a common seal and
shall by the said name sue and be sued and shall subject to the provisions of this Act and the rules made thereunder
have power to acquire, hold and dispose of any property movable or immovable, to enter into contract and to do all
other things necessary for the purpose of this Act..
10 S. K.J. AND D. SAXENA

5. Challenges of the FRA 2006

The persistent ignorance towards CFRs despite follow-ups with multiple decision-
making statutory authorities, and the tug of war between the GS and the forest depart­
ment, is affecting the implementation of the Act.60 Pending claims with forest officials are
raising serious concerns for CFRs.61
There needs to be more training for the officials at the state and district levels for
a better understanding of this livelihood-based law. The mechanism under the FRA 2006
is designed to facilitate the betterment and advancement of these communities, not to de-
motivate and discourage them from being part of the forest governance system.
Coordinated efforts to streamline claim filing, investigation, resolution passing, and
interactions between GS, SDLC and DLC is essential to avoid unnecessary delays in the
procedure. There should be involvement and participation of civil society organizations
in drafting, articulating, and representing communities during claim making process.
This article does not cover the implementation challenges of FRA 2006 at length, as the
focus of the article is to explore an integrated approach between the FRA 2006 and GIA
1999 for better commercialization of products out of minor forest produce.

6. Possibilities under the FRA 2006

GSs can act as a nodal point for trading non-timber forest produce or goods produced
from minor forest produce. The presence of GS can dispense with the need to register
another association to claim property rights to trade goods. The GIA 1999 permits
registration of intellectual property rights for origin-linked goods. The question is
whether the GS can apply for such a registration. The next part of the article will discuss
this in detail.
While the cultural and natural heritage of forest-dwelling communities is becoming
commercially significant, we need to consider the governance of the underlying physical
and intellectual property. The knowledge and the performance of cultural labour of
forest-dwelling communities should be rewarded justly. The intellectual property own­
ership under the GIA 1999 contains collective rights framework which has the potential
to facilitate the labouring community’s claim for the private ownership of their produce
under the FRA 2006. This argument is further explained in Section 7.
The possibility of creating an interlinkage between FRA 2006 and GIA 1999 to trade
forest products through GS and to divide the proceeds from the sales, as in the case of the
Gadchiroli, is significant. This is especially so since the government is encouraging the
recognition of GIs in various forums, for example, through the involvement of the Tribal
Cooperative Marketing Development Federation of India Limited (“TRIFED”) as an
authorized user of GIs for tribal products.62 The Ministry of Tribal Affairs recently
announced that 75 tribal products have been identified for GI certifications and several
60
Kamal Nayan Choubey, ‘The State, Tribals and Law: The Politics behind the Enactment of PESA and FRA’ [2016] 46 Social
Change 355.
61
Kumar (n 47).
62
This is not necessarily for forest products but it can be seen in the case of handloom products, for example, Chanderi
saris where both the regional (Bhopal) and central departments of TRIFED are recognized as authorized users.
Geographical Indications Registry, Government of India, Application details 2016 <https://search.ipindia.gov.in/
GIRPublic/Application/Details/7> accessed 21 May 2024.
 INDIAN LAW REVIEW 11

of them are non-timber forest products. Among these, 37 are from eight states of
Northeast India, seven are from Jharkhand, and six are from Madhya Pradesh.63
Examples mentioned in the press release are metal figurines, handmade jewelleries as
well as spices, processed juices, and herbal powders, showing both an environmental and
a social connection with the land. The press release from the Ministry of Tribal Affairs
does not mention the names of the products in detail but the TRIFED website provides
more details, especially in a report on the implementation of the Van Dhan Yojana.64
Also, under the “One Village One Product” scheme of the Ministry of Food Processing
Industries, Government of India, 16 minor forest products have been identified out of
713 districts in 35 states and union territories.65 The scheme is an offshoot of rural
development schemes first started in Japan,66 but also employed in multiple developing
countries such as Vietnam, India, Thailand, Senegal, Kenya, Tanzania, Costa Rica,
Argentina etc. GI registration is an emerging strategy that works alongside such schemes
as a marketing and labelling approach.
The challenge lies in the multiplication of institutions – while the GS governs the
rights under the FRA, under the GIA, it is the producer association/society which
governs the GI rights. If GSs can be designated as body corporates, they can act as
community business institutions and have proprietary rights over products as regulated
under both the FRA 2006 and the GIA 1999, to ensure that the community directly
benefits from the commercialization of products. There can be other institutional
mechanisms to protect the GSs from inherent market risks and trading challenges.
Integration of authorities based on a bottom-up approach wherein the communities
own labour, production and trading would ensure the realization of the livelihood
approach.

7. The geographical indications approach

In 2017, Nilambur teak was registered as the first forest produce under the GIA 1999 in
India.67 Similarly, other natural or agricultural products, identified as minor forest
produce, such as mahua flowers, wild honey, fruits, vegetables, silks, etc.,68 can be
registered as a GI. GIs were first defined under Article 22(1) of the World Trade
Organization’s (“WTO”) Agreement on Trade-Related Aspects of Intellectual Property
Rights (“TRIPS”) as “ . . . indications which identify a good as originating in the territory
of a member-state, or a region or locality in that territory, where a given quality,

63
PIB Delhi, ‘To Mark 75 Years of Independence, TRIFED Adds 75 New Tribal Products to Tribes India Catalogue’ (Ministry of
Tribal Affairs, 17 August 2021)
<https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1746665> accessed 15 January 2024.
64
Ministry of Tribal Affairs, Government of India, Pradhan Mantri Van Dhan Yojana: Mera Van, Mera Dhan, Mera Udyam:
200 Days Report 2020 <https://trifed.tribal.gov.in/geographical-indication-tagging> accessed 14 January 2024.
65
Ministry of Food Processing Industries, Government of India, Office Memorandum dated 21 July 2022 <https://www.
mofpi.gov.in/sites/default/files/final_revised_odop_list_of_713_districts_with_om.pdf> accessed 28 August 2023.
66
Joseph Sega Ndione and Kanichiro Suzuki, ‘Beyond the One Village One Product (OVOP) Concept through Design
Thinking Approach’ [2019] 7 International Journal of Education and Research 143.
67
Dhinesh Kallungal, ‘Geographical Indication Tag: Famed Nilambur Teak Is Now Kerala’s Own’ New India Express
(1 January 2018) <https://www.newindianexpress.com/states/kerala/2018/jan/01/geographical-indication-tag-famed-
nilambur-teak-is-now-keralas-own−1,741,369html> accessed 14 July 2023.
68
Ministry of Tribal Affairs, Government of India, Importance of Minor Forest Produce, Tribal Co-Operative Marketing
Development Federation of India Limited <https://trifed.tribal.gov.in/non/timber/msp-mfp> accessed 14 July 2023.
12 S. K.J. AND D. SAXENA

reputation or other characteristic of the good is essentially attributable to its geographical

origin”.69
The GI definition at the international level is strongly influenced by the understanding
of GIs in European countries, particularly the French appellations d’ origine contrôlée.70
The GIA 1999 translates the definition to suit its domestic context and covers a larger
variety of goods than previously covered under harmonized European Union (“EU”)
laws, that is, the Parliament and Council Regulation 1151/2012 of 21 November 2012 on
quality schemes for agricultural products and foodstuffs71 GIs require collective effort by
the producers and (ideally) provide a collective benefit, enabling social cohesion.72
Scholars highlight that the Indian law expressly requires that the proprietor of the GI
be a community, a group of producers or an organization under Section 2(n) of the GIA
1999.73 However, this does not automatically ensure inclusive governance of the GI.74
Here, we focus on the lack of inclusion of forest-dwelling communities in the governance
of the GI.
In general, the claim that GIs can help protect traditional knowledge is one of the
strong rationales given for their protection, and at the same time, misappropriation of
traditional knowledge by corporate giants is common.75 Further, neoliberal development
models, such as certification labels, can reinforce hierarchies in the governance of GIs.76
Julie Guthman argues that labels such as organic, or even GI tags themselves, are
neoliberal tools as they enable privatization of public resources, minimization of labour
costs, reduction in public expenditures (at least in the areas of social welfare), and
elimination of regulations for the ease of doing business.77 Labels including “organic”
or “fair-trade” are created externally and then imposed on the producers, taking attention
away from the responsibility of governments towards labour or towards conservation of
traditional methods of cultivation. These labels can be seen as offering protection outside
the realm of GIs or in complementarity with any environmental, traditional knowledge,
or cultural heritage protection rules that exist within the GI.78 Scholars argue that while

69
TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement
Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 1994 [TRIPS Agreement].
70
Gangjee (n 10) ch 3.
71
This legislation is now replaced by Parliament and Council Regulation 2024/1143 of 11 April 2024 on geographical
indications for wine, spirit drinks and agricultural products, as well as traditional specialities guaranteed and optional
quality terms for agricultural products [2024] OJ L 2024/1143 (23 April 2024). EU law has been recently amended to also
include crafts goods through Parliament and Council Regulation 2023/2411 of 19 October 2023 on the protection of
geographical indications for craft and industrial products, [2023] OJ L 2023/2411 (27 October 2023) <https://eur-lex.
europa.eu/legal-content/EN/ALL/?uri=OJ:L_202302411> accessed 14 January 2024. It will be applicable from
1 December 2025 in all EU member states.
72
Delphine Marie-Vivien and others, “Trademarks, Geographical Indications and Environmental Labelling to Promote
Biodiversity: The Case of Agroforestry Coffee in India” (2014) 32 Development Policy Review 379, 390; Alexandra Basak
Russell, “Using Geographical Indications to Protect Artisanal Works in Developing Countries: Lessons from a Banana
Republic’s Misnomered Hat” (2010) 19 Transnational Law and Contemporary Problems 705, 726.
73
Sayantani Datta and Niharika Sahoo Bhattacharya, ‘Geographical Indication Protection System in India’ in Niharika
Sahoo Bhattacharya (ed), Geographical Indication Protection in India (Springer Nature Singapore 2022) 19.
74
N Lalitha and Soumya Vinayan, Regional Products and Rural Livelihoods (First, Oxford University Press 2019) 143–162.
75
Dwijen Rangnekar, “The Socio-Economics of Geographical Indications: A Review of Empirical Evidence from Europe”
(2004) Project Report 8 <https://unctad.org/system/files/official-document/ictsd2004ipd8_en.pdf> accessed
22 August 2024.
76
Julie Guthman, ‘The Polanyian Way? Voluntary Food Labels as Neoliberal Governance’ [2007] 39 Antipode 456.
77
ibid 464.
78
See also Devanshi Saxena and Christine Frison, ‘A Case for Activating Producers’ Rights in Discussions on Conservation
of Biodiversity through Geographical Indications’ [2024] Journal Of Intellectual Property Law and Practice <https://
academic.oup.com/jiplp/advance-article/doi/10.1093/jiplp/jpae005/7603493> accessed 5 May 2024.
 INDIAN LAW REVIEW 13

control of compliance with the GI standards is important, GI descriptions should be

tailored to local stakeholders whose local know-how and resources confer reputation to
the product.79 Delphine Marie-Vivien and Estelle Biénabe write that “[p]roducers are
joining as standard makers and not only as standard takers”.80 Besides the problem of
third party certification and parameters for GI standards, GI governance is yet another
major issue. GI governance can exclude the original producers and instead perpetuate
labour hierarchies and colonial labour relations,81 even enabling appropriation of the
labour and knowledge of forest-dwelling communities.
GI protection can include such a risk. In India, for instance, the case of Payyanur
Pavithra Ring from Kerala provides some insights on this issue.82 The GI registration of
22 October 2010 was challenged under section 11 of the Act which requires that the
producer body represents the interest of producers desirous of registering a GI. In 2012,
the Intellectual Property Appellate Board (“IPAB”) removed the producer body, that is
the Payannur Pavithra Ring Artisans & Development Society, as a proprietor of the GI
for not being able to show that it was representative of all producers interested in the GI.
A fresh application was filed by another private family trust, namely, the M/s Sree
Choovatta Vallapil Tharawad Dharmadaiva Paripalana. In January 2014, officials of the
GI registry visited Payyanur to enquire about the production of the ring and its history.83
It was observed at that time that only 12–15 artisans were involved in the preparation of
the ring. Even the new applicant, a society, was formed only for the purpose of the GI
registration. It was not proved that they represented the interests of all producers
including artisans and traders, who were not a united group.
Eventually, no proprietor was identified who could represent the interests of all the
producers. The GI Registrar explained in this meeting that “[a]ll the artisans involved in
the preparation were entitled for the benefit of the GI tag and it was not a private
property. GI was a common right given to society and was not granted for the benefit of
any particular individual”.84 It is also useful to note that the fact that the applicant was
a private trust, with a limited purpose (religious) and restricted membership, enabled this
conclusion by the GI registry. Till date, there is no producer assigned to this GI. As per
the registry, the GI registration was valid until 22 February 2014. An official of the GI
registry was quoted saying that the ring still enjoys GI status but the registry had decided
not to grant the GI registration to a particular individual or group as that will not help the
artisans reap the benefits of the GI.85 10 years later, the GI registration has not been
renewed by any producer group or by the state.

79
Delphine Marie-Vivien and Estelle Biénabe, ‘The Multifaceted Role of the State in the Protection of Geographical
Indications: A Worldwide Review’ [2017] 98 World Development 1, 4.
80
ibid.
81
Coombe and Malik (n 13) 369.
82
Mathews P George, ‘IPAB on Payyanur Ring’ (Spicy IP, 18 November 2012) <https://spicyip.com/2012/11/ipab-on-
payyannur-ring.html> accessed 14 January 2024.
83
’Minutes of the Consultative Group Meeting held on 11 March 2014 at 10.30 hrs at Bengaluru- G.I. Application No. 06 –
“Payyannur Pavitra Ring” & 408 – “Payyannur Pavithra Mothiram” and order in the matter remanded by IPAB in appeal
OA/2/2010/GI/CH and M.P. Nos. 1/2020 & 269/2012 in OA/2/2010/GO/CH’ <https://search.ipindia.gov.in/GIRPublic/
Application/ViewDocument> accessed 14 January 2024.
84
ibid 11.
85
P Sudhakaran, ‘Payyannur Pavithra Motiram in a Geographical Indication Tag Ownership Tussle’ Times of India
(Kozhikode, 21 August 2014) <https://timesofindia.indiatimes.com/city/kozhikode/payyannur-pavithra-mothiram-in
-a-geographical-indication-tag-ownership-tussle/articleshow/40549595.cms> accessed 19 August 2024.
14 S. K.J. AND D. SAXENA

This case is a useful precedent to argue for a representative GI proprietor where the
membership can be inclusive. The new Parliament and Council Regulation 2023/2411 of
18 October 2023 on craft and industrial products, can offer a direction in this context.
Article 45 of the Regulation states that “producer groups shall operate in a transparent,
open and non-discriminatory manner and in a manner that allows all producers of the
product designated by a geographical indication to join the producer group at any point
in time”.86
In India, GIs are typically owned by a producer body that is either facilitated by
a government undertaking or includes representatives from the government.87 In the
case of minor forest produce, which forest communities have a right to own, collect, use
and dispose of,88 it is suggested that such a producer body also includes their represen­
tatives. It is even better if producer bodies are led by the forest community themselves
(see integrated model below). At the very least, the forest communities should be
registered as authorized users of the GI. For example, Marthandam honey which received
the GI status in 2023 does not have any authorized user till date who can use the name
“Marthandam honey” other than the registered members of the Marthandam Beekeepers
Co-operative Society Limited. Under section 21 of GIA 1999, the proprietor and the
authorized users of the GI product have a monopoly over the name of the product.
Another suggestion offered by KD Raju and Shivangi Tiwari is to introduce benefit
sharing in the GIA 1999.89 However, their work shows that this is not the most effective
solution. They use the example of a model benefit sharing agreement between the Kani
tribe and the Jawaharlal Nehru Tropical Botanical Garden and Research Institute in
Kerala.90 Despite initial success, when according to a World Intellectual Property
Organization (“WIPO”) report, the Kani people received US$ 12500.00 (Twelve thou­
sand and five hundred US dollars) from the benefit sharing agreement in 1999, the
agreement subsequently failed due to many reasons including concerns with the initial
informed consent of the tribe and the politics of knowledge ownership.91 Mohan Dewan
writes that the unfortunate episode could have been possibly prevented if the Biological
Diversity Act 2002 and the FRA 2006 were seen together and “the Kani tribe would have
been directly involved in the making of (the drug) Jeevani and the biological diversity
authorities would have been able to control the exploitation of the plant to the exclusion

86
Parliament and Council EU Regulation 2023/2411 of 18 October 2023 (“the EU Regulation”) on craft and industrial
products [2023] OJ L, 2023/2411 (27 October 2023) art 45.
87
However, Lalitha and Vinayan point out that the role of central and state government as applicants is doubtful within
the law. Lalitha and Vinayan (n 76) 42. See also the definition of producer under GIA 1999, s 2(k).
88
As per the FRA, minor forest produce ownership lies with the scheduled tribes and other Forest Dwellers on all forest
lands (s 3), including ‘right of ownership, access to collect, use, and dispose of minor forest produce which has been
traditionally collected within or outside village boundaries’ (s 3(c)). The disposal includes the ‘right to sell as well as
individual or collective processing, storage, value addition, transportation within and outside forest area through
appropriate means of transport for use of such produce or sale by gatherers or their cooperatives or associations or
federations for livelihood’ (Rule 2d).
89
KD Raju and Shivangi Tiwari, ‘The Management of Geographical Indications: Post Registration Challenges and
Opportunities’ [2015] 42 Decision 293, 302.
90
Raju and Tiwari (n 91).
91
Sabil Francis, ‘Who Speaks for the Tribe? The Arogyapacha Case in Kerala’ in Sebastian Haunss and Kenneth C Shadlen
(eds), Politics of Intellectual Property: Contestation Over the Ownership, Use, and Control of Knowledge and Information
(Edward Elgar 2011); Roy Mathew, ‘A Benefit-Sharing Model That Did Not Yield Desired Results’ The Hindu
(Thiruvananthapuram, 18 October 2012) <https://www.thehindu.com/news/national/A-benefit-sharing-model-that-
did-not-yield-desired-results/article12561312.ece> accessed 15 July 2023.
 INDIAN LAW REVIEW 15

Figure 1. Pictorial representation of the integrated model.

of the traders”.92 In this article, similarly, it is argued that the GIA 1999 and the FRA 2006
should be seen together (see integrated model in Figure 1).
Scholars studying the Indian GI system have already discussed the lack of monitoring,
inspection, and enforcement of the GI,93 which is a cause for concern. However, concerns
about the lack of inclusive governance precede the concerns at the post-registration stage
because that is where the drawing of boundaries (the delimitation of the GI area and the
producer group) begins. While it can be argued that GI producers, being at the lowest
levels of the supply chain, are not sufficiently aware of this legal tool to be part of
producer bodies, this does not justify their exclusion. The government already invests
in creating awareness, and if the producer body is inclusive, their capability can be
enhanced such that they can themselves take steps to monitor the implementation of
the GI. For instance, the producer body can support the government with inspection by
filing complaints to relevant authorities.
GIs can be a useful tool to protect minor forest produce if the risks of misappropria­
tion of traditional knowledge related to such produce, as well as the risks of excluding
forest communities from the ownership and governance of the GI, are eliminated. This
can help achieve the right to livelihood in a sustainable way. When poorly governed, GIs
can cause exclusion of producers from their cultural heritage leading to abandonment of

92
Mohan Dewan, ‘Socio-Economic Changes Effected by Intellectual Property Rights: The Indian Perspective’ in Ruth Taplin
and Alojzy Z Nowak (eds), Intellectual property, innovation and management in emerging economies (Routledge 2010)
122.
93
Niharika Sahoo Bhattacharya and Kuhu Tiwari, ‘A Study on the Quality Control and Enforcement of Registered
Geographical Indication Goods in India’ in Niharika Sahoo Bhattacharya (ed), Geographical Indication Protection in
India (Springer Nature Singapore 2022); Yogesh Pai and Tania Singla, ‘”Vanity GIs”: India’s Legislation on Geographical
Indications and the Missing Regulatory Framework’ in Irene Calboli and Wee Loon Ng-Loy (eds), Geographical
Indications at the Crossroads of Trade, Development, and Culture (1st edn, Cambridge University Press 2017).
16 S. K.J. AND D. SAXENA

traditional methods, innovation practices and related knowledge. In the case of agricul­
tural products, that can result in reduced biodiversity.94 Strengthening property rights of
forest-dwelling communities will support the sustainable use and conservation of forests
because the ownership will stay with communities that are committed to this exact
purpose and have traditionally managed the forests.95 Without such initiatives, there is
also a real risk of dispossession of lands and conversion of forest lands into plantations to
produce economically valuable forest produce.96
Food and Agriculture Organization (“FAO”) conducted a study of nine agricultural
GIs around the world and found that the inclusion of small-scale producers is a key
success factor for the sustainable development of rural communities, as this brings forth
interlinkages between the local producers and the world market.97 They found that
“when public authorities intervene strongly and provide incentives to the process to
compensate for producers’ lack of capacities and knowledge, there is a risk for long-term
viability if local players, especially producers, do not assume ownership in the medium
term”.98 Luke Owen and others further argue that to aid sustainable transitions, GIs
should be reflexively governed, that is, they should provide the space for debates that
facilitate the participation of all actors instead of only the powerful ones interested in the
continuation of the status quo.99
GI scholars argue that in order to fulfil the public policy rationales of GI protection, GI
statutes, whether at a national, regional or international level, may not be enough on their
own.100 Coombe and Malik also reflect that Europe, where the GI laws originated, relies
on “a whole range of other supports and subsidies as well as a legal context in which
human rights are ‘constitutionalized’ within IP rights protections”.101 Therefore, in the
legal context of protecting the rights of forest communities over minor forest produce,
something more than the existing protection under the GIA 1999 will be needed. Our
integrated model, discussed in the next section, is a proposal to this end in the specific
context of minor forest produce.

8. An integrated model for forest producers and minor forest produce

The labour law approach and the GI approach explained above argue for the implemen­
tation of right to livelihood operationalized through the FRA 2006 and the constitutional
94
Juliana Santilli, ‘Geographical Indications for Agrobiodiversity Products: Case Studies in France, Mexico and Brazil’ in
Juliana Santilli, Agrobiodiversity and the Law: Regulating Genetic Resources, Food Security and Cultural Diversity (Earthscan
2012); Coombe and Malik (n 13) 89.
95
Sarah A Laird, Rebecca J McLain and Rachel Wynberg (eds), Wild Product Governance: Finding Policies That Work for Non-
Timber Forest Products (Earthscan 2010).
96
See the example of Darjeeling in Coombe and Malik (n 13).
97
Emilie Vandecandelaere and others, Strengthening Sustainable Food Systems through Geographical Indications: An
Analysis of Economic Impacts (FAO 2018) 32.
<https://openknowledge.fao.org/server/api/core/bitstreams/afc44660-75ac-43b4-918e-ef4915c0ff52/content>
accessed 19 August 2024.
98
ibid.
99
James Kirwan, Damian Maye and Gianluca Brunori, ‘Reflexive Governance, Incorporating Ethics and Changing
Understandings of Food Chain Performance: Reflexive Governance, Ethics and Food Chain Performance’ [2017] 57
Sociologia Ruralis 357, cited in Luke Owen and others, ‘Place-Based Pathways to Sustainability: Exploring Alignment
between Geographical Indications and the Concept of Agroecology Territories in Wales’ [2020] 12 Sustainability 4890,
4902.
100
Sunder (n 16).
101
Coombe and Malik (n 13).
 INDIAN LAW REVIEW 17

protections for the right of forest-dwelling communities. Such an approach aims at

sustainable forest governance through an integrated model. The cornerstone of this
model is the recognition of the rights over forest produce as already delineated under
the FRA 2006. It is proposed that these rights are not to be negated when GI protection is
being set up for forest produce. Using the reputation of tribal people connected to their
product or relying on their knowledge that conserves the natural resources on which the
GI product depends, without recognizing their rights over the same product is unjust
extraction and appropriation and above all dignity-denying. Section 11 of the GIA 1999
currently requires that the producer body or community is a representative body
comprising all kinds of producers. While this is useful, in the case of forest produce,
the FRA 2006 gives guidance for what such a producer body could be, that is, the GS.
Non-timber forest produce is undervalued the world over, and one of the reasons for
this is the distrust among people who use such produce for sustenance.102 People
understandably fear for their rights if they share information about the products that
sustain their livelihood. Studies warn about commercialization of such products resulting
in elite capture.103 In such cases, governance of such produce through GSs can generate
trust in governance.
A good example of such an impact is mentioned above in Section 4 as a case study. In
Gadchiroli more than 1,400 GSs have been given “community forest resource rights”
since 2011, allowing Forest Dwellers to trade in tendu leaves and bamboo.104 As per the
World Research Institute report, until 2017, the auction system for the tendu leaves was
managed by contractors.105 The Forest Dwellers would record the number of leaves
collected on their “tendu job cards” and receive an income on that basis at the end of the
season. Villagers earned minimum wages and a share (around 20% to 30%) of the profit
given to the GS. In 2017, for the first time, 90 GSs came together to form a federation
(mahagramsabha) and began the auction process for leaves, resulting in a record increase
in the incomes of villagers.106 This process was supported by the Forest Department by
promoting safe practices for production, for example, “pollarding of bigger trees followed
by pruning of the bushes for tendu leaf management” instead of using fires for inducing
leaf production as well as providing workshops on market awareness and auction
procedure.107
A direct role for the GSs in the governance of the GI can enable them to make optimal
use of the flexibilities provided within the GIA 1999 and update the description as per the
innovations in the supply chain. One way to ensure direct involvement of locals can be
through the creation of a society that includes ex officio members of GS along with others
who can be considered as producers under the GIA 1999. The integrated model foresees

102
Catherine Benson Wahlén, ‘Opportunities for Making the Invisible Visible: Towards an Improved Understanding of the
Economic Contributions of NTFPs’ [2017] 84 Forest Policy and Economics 11.
103
ibid.
104
Anuja Anil Date and others, ‘Silvicultural Practices in the Management of Diospyros Melanoxylon (Tendu) Leaf
Production: Options and Trade-Offs’ [2023] 77 Economic Botany 135; Aritra Bhattacharya, ‘Adivasis Have Taken
Charge of the Tendu Auction in Gadchiroli, but There’s Room for Improvement’ (Scroll, 2 November 2016) <https://
scroll.in/article/819849/adivasis-have-taken-charge-of-the-tendu-auction-in-gadchiroli-but-theres-room-for-
improvement> accessed 15 July 2023.
105
Seema Yadav and Shweta Prajapati, ‘Korchi’s Forest Communities and the Mahagramsabha’ (WRI India, 5 July 2023)
<https://wri-india.org/blog/korchis-forest-communities-and-mahagramsabha> accessed 15 July 2023.
106
ibid.
107
Date and others (n 106) 139; Bhattacharya (n 106).
18 S. K.J. AND D. SAXENA

the GS to play the steering role when the GI proprietor is being identified. There will be
a need for government support in this process, in creating awareness as well as in other
stages of GI governance. The objectives of state intervention are not only to enable just
and inclusive governance of the GI supply chain but also to safeguard public goods.108
Governance of forest produce GIs as agro-commons can also be useful in this context. It
can valorize human-land relations which is beneficial for biodiversity conservation.109 GI
governance, then, must be such that it fulfils the right to livelihood of Forest Dwellers.
The benefits generated in this manner can be reinvested in the community by the GSs.
The efficiency of GI protection depends on multiple factors. GIs all over the country
are struggling with challenges such as market access, both domestically and internation­
ally, despite multiple initiatives by the government to promote GI products.110 Similar
challenges exist for the commercialization of non-timber forest products worldwide. In
this context, inclusive governance of is a key step to ensure that the producer commu­
nities can take up ownership of the management process.111 This also safeguards their
right to livelihood. In addition, reflexive governance can be adopted to enable proble­
matization of the power imbalance between the forest-dwelling communities and other
actors, both state and non-state ones. Without legal intervention, such power imbalances
will result in a continuation of the status quo and the reinforcement of power structures
with the unquestioning support of the law.

9. Conclusion
As part of forest governance, the state has sought to enact laws and policies to conserve
forests, forest resources and forest communities. The civil society movement advocated
legislation to uplift tribal and forest communities, compensating for historical injustices.
The negotiations towards law-making emphasized a community rights perspective, with
the GS as the first institution to verify claims and pass resolutions to be forwarded to the
SDLC.
After the Indian Constitution came into force, the judiciary prioritized a “livelihood
approach” for toiling communities, as seen in labour and right-to-cities litigations.
Article 21 along with Article 39(a) of the Indian Constitution ensure the right to
livelihood with dignity. The FRA 2006 secures occupation rights for forest communities,
aligning with the “livelihood” approach to ensure economic and other human rights. It
promotes trading of ethnic and organic goods, aided by state organizations certifying
forest goods under the GIA 1999.
The article argues for an integrated approach between the FRA 2006 and the
GIA 1999 towards facilitating direct trade by forest communities and eliminating
trade intermediaries. Procedural coordination is vital. GSs mandated by FRA 2006
108
Vandecandelaere and others (n 99) 26.
109
Giovanni Belletti, Andrea Marescotti and Jean-Marc Touzard, ‘Geographical Indications, Public Goods, and Sustainable
Development: The Roles of Actors’ Strategies and Public Policies’ [2017] 98 World Development 45; Enric Castelló,
Daniel Lövgren and Göran Svensson, ‘The Narratives of Geographical Indications as Commons: A Study on Catalan and
Swedish Cases’ [2022] Food, Culture & Society 1.
110
Justin Hughes, ‘The Limited Promise of Geographical Indications for Farmers in Developing Countries’ in Irene Calboli
and Wee Loon Ng-Loy (eds), Geographical Indications at the Crossroads of Trade, Development and Culture (Cambridge
University Press 2017).
111
Brian Belcher and Kathrin Schreckenberg, ‘Commercialisation of Non-Timber Forest Products: A Reality Check’ [2007]
25 Development Policy Review 355.
 INDIAN LAW REVIEW 19

can play a role. They could become producer bodies under the GIA 1999,
avoiding profit concentration and exclusion through external management of
resources. Alternatively, GSs, after seeking approval from the communities, them­
selves can be the producer association or at least a part of the producer associa­
tion. Direct economic participation would help build capital from below, as in the
case of Gadchiroli, and discourage appropriation of market value by the inter­
mediaries. Bokil and Gogulwar propose incorporating GS as body corporate for
self-governance, livelihood generation, and conservation.112
While the article focuses on minor forest produce, it advocates for giving more power
to forest-dwelling communities under the FRA 2006 in the governance of GIs. A similar
approach can be extended to other kinds of products such as handicraft products. This
avoids multiple-regime complex, streamlining laws to provide sustainable livelihood
rights to marginalized communities.

Disclosure statement
No potential conflict of interest was reported by the author(s).

Funding
The work was supported by the Research Foundation Flanders [V434123N].

112
Bokil and Gogulwar (n 55).