Songs, drawings and stories- Legal evidence as a rooted process.

Introduction

I was in rural Rajasthan with a team of environmental lawyers from Natural Justice in May 2014. The sun was beating down on us and the summer heat could not be escaped. The objective of the meeting was to redraw the official map of the Sariska Tiger Reserve to include the customary understanding of the landscape by the Gujjar community that lived in the area. The community members who had gathered there were enjoying the process of drawing what was their perception of the forest land, grazing route, where their home was and where they would encounter the forest department.

This map was a hand drawn sketch with multiple colours and routes chronicling the path taken by the livestock and the community. This was legal evidence that we were intending to submit to support the claim to forest rights being made by the community- the local bureaucracy though did not accept it as “legally valid evidence”. As a PhD student when I interviewed the local bureaucracy on what they made of this evidence they often said “ Ah! Those maps drawn like children would in kindergarten cannot be legal evidence. It must be surveyed, incorporated in government records and maps produced. This is hard evidence” (Interview,2019). It was this conversation that introduced me to the idea of hard and soft evidence. I disliked the distinction as an environmental lawyer as it meant that hard evidence was what the state produced and recognised and soft that which was not vetted by the state. I instead countered this idea with the notion of rooted evidence, evidence of the ground and lives of communities in these forests- something that I think as environmental lawyers we need to pay close attention to.

What is rooted evidence?

“ This drawing is the map that makes sense to me. The one drawn by the state is too complex” said a local Gujjar in Sariska (Fieldnotes,2014). The self-drawn  map became then an artefact of assertion of their rights over the territory. Legal evidence then needs to move from the abstraction of rigid rules to include songs, stories, and drawings. The human experience of climate change cannot be reduced to mere scientific studies but must move beyond that to see other ways in which this experience is being articulated.

During my fieldwork in Sundergarh, Odisha the forest-dwelling community often spoke of how the quality of the grass and the rain had changed. They captured this through conversations, stories, and ways of sharing this change with the younger generation. This experience of change needs to be valued and understood through the instruments of stories and narratives that local communities and others use to articulate. Environmental law is presently relying heavily on science and that is important, but we need to diversify our sources of legal evidence to include literature, song and art that captures the Anthropocene.  

Lawyering for climate change cannot only rely on climate science but must include these alternative sources of evidence of change which are equally significant. If we create an artificial hierarchy of legal evidence like hard and soft, we risk creating a situation where legal evidence becomes a barrier to avoid climate action. It becomes important then to critique and challenge what legal evidence means in the context of the climate emergency. Evidence needs to be rooted in our lived realities of climate change and we need to include voices of the vulnerable who may not have access to climate scientists or science.

Conclusion

In conclusion, I would like to end with one of my favourite quotes from my fieldwork in Odisha by a senior Adivasi activist when I asked him about climate change and the law, he said

“ Climate is changing we know it! You know it! Yet we will have to go to court to prove it imagine the lunacy of it all and in that process of proving it we will delay whatever action  we need to take!” (Interview, 2018)

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