Jun 5, 2020

The Forest Keepers’ Case

The future of forest conservation is linked to honouring the rights of the tribal communities.

On February 13, 2019, the lives and livelihoods of our forest keepers were threatened when the Supreme Court passed an order directing the eviction of millions of forest-dwellers after their claims for forest land rights were rejected under the Forest Rights Act of 2006. Their rights have been further challenged with the proposed Indian Forest (Amendment) Bill, 2019, which if passed and enacted will not only make tribal communities vulnerable but will also pose a threat to the conservation of our forests.

Tribal and traditional forest-dwelling communities across India have lived in forests for generations, protecting our forests and its biodiversity. Being an integral part of the forest ecosystem, the forest keepers have a critical role in forest governance, development and its conservation. Driving them away would could impact the conservation of the forests and loss of biodiversity.

In law, the customary rights of the traditional forest-dwelling communities were not recognised for a long time. Their rights were only acknowledged in 2006 after the Parliament passed the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act (hereinafterForest Rights Act). However, the symbiotic relationship between tribal people and forests were first realised under the National Forest Policy, 1988 which also recognized the role of tribal communities in the protection, regeneration and development of forests.

Forest governance in India is another set of complex issues which revolve around archaic colonial laws, stringent bureaucratic processes, changing government policies and influence of industrial interests. In this piece, while documenting the curious case of traditional forest-dwellers of India, I argue that the Forest Rights Act is pivotal for forest conservation and environmental protection.

Forest Rights Act

The Forest Rights Act aims to redress the “historical injustice to the forest-dwelling Scheduled Tribes” by way of recognising their property rights to land, common occupation to use non-timber forest produce and by realising the collective community rights of control and management of forests land.

To be granted a right under the Forest Rights Act, an individual must demonstrate that, they they have been and continue to either: (a) reside on forests or forest lands, or (b) dependent on forest produce for their livelihood. The legislation recognised two classes of persons to be eligible to claim rights under the law: (i) forest-dwelling Scheduled Tribes, and (ii) other traditional forest dwellers – communities who have been dependent on forests for a minimum of 75 years.

However, the Forest Rights Act has not been fully implemented to this date. The implementation has been difficult as in many aspects it has failed to align with the goals and objectives of the Indian Forest Act, 1927 (IFA, 1927) and Wild Life (Protection) Act, 1972 (WLPA, 1972). While the IFA, 1927 gave the forest departments sizeable discretionary power in governance and administration of forest lands, the WLPA, 1972 aims to ensure ecological and environmental security and identification of strictly governed national parks and sanctuaries. These two legislations recognise the forest and wildlife bureaucracy with the rights of tribal communities finding no place.

Given this, the Forest Rights Act not only becomes a ground for conflict between wildlife conservationists and tribal communities but also leads to bureaucratic discord between the Ministry of Tribal Affairs and Ministry of Environment and Forests as the latter fears a loss of control over the subject.

At the Supreme Court of India

The constitutional validity of the Forest Rights Act was challenged by Wildlife First and other conservationists in 2008 (Wildlife First & Ors. v Ministry of Forest and Environments & Ors. [Writ Petition No. 109/2008]). The petitioners argued that the Act has led to deforestation and encroachment upon forest land. The conflict arose because the tenurial rights allotted by the forest departments were narrowed down and manifested as encroachment even as the traditional forest-dweller continued to live under the bureaucratic hammer of the forest departments.

As the legal battle unfolded over the last 12 years, the petitions which were originally filed to challenge the constitutional validity of the Forest Rights Act changed course to focus on the rights of tribal communities and traditional forest-dwellers. The Supreme Court took it upon itself to issue orders of eviction even before the central question of constitutional validity had been thoroughly debated, argued and decided.

To prevent encroachments in forest areas, the Supreme Court of India India on February 13, 2019 passed an interim order and directed the eviction of more than 1.8 million tribal families and traditional forest-dwellers – whose claims were rejected under the Forest Rights Act – from forest lands.

State governments mostly rejected the claims of the tribal and traditional forest-dwellers based on scrutiny by the Gram Sabhas – which were tasked to initiate the process of verification of claims over the land. Low awareness of Gram Sabhas on how to deal with the issue and lack of documentary proof by the poor and illiterate tribal population from the remote forest villages lead to the catastrophe.

However, later on February 28, 2019, the court stayed its earlier order of eviction which was passed ostensibly in the name of wildlife protection and directed authorities to enquire whether due process was followed by the Gram Sabhas and the state governments under the Forest Rights Act before rejecting the claims.

Nevertheless, the eviction order has created a sense of uncertainty and fear in the tribal communities.

The opposition of the Forest Rights Act is mostly driven by the wildlife protection groups whom the noted scholar Ramchandra Guha has called ‘wildlife authoritarians’. Their Their core arguments include that:
  • the Forest Rights Act violates precautionary principles and the public trust doctrine;

  • it violates aspects of Right to Life to natural heritage, ecology, biodiversity and natural resources; and

  • discriminate between the non-forest landless people and people in unauthorised occupation of forest land.

Table Source

The matter is sub judice before the apex court, and we will only know the outcome of the litigation over time. However, it is interesting to note that the conservationists’ groups which primarily argued against tribal villages located in the forest have continued to remain silent on eco-tourism, i.e. ventures of tourism activity in national parks and sanctuaries.

This is not the end of the struggle for the rights of tribal communities. The Central Government in March 2019 released the Draft Indian Forest (Amendment) Bill, 2019 to amend the Indian Forest Act, 1927.

Proposed Amendments

The Draft Indian Forest (Amendment) Bill, 2019 is another step towards undermining the tribal communities’ rights recognised under the Forest Rights Act.

The proposed amendment empowers the forest department with the extraordinary powers to record forests rights; to commute individual and community rights to declare any forest land to be a reserve forest; to declare any patch of forest land for commercial plantation, and to suspend rights over pasture and forest-produce.

The draft law also allows forest department officers to use firearms and empowers them to enter and search premises to check forest offences. The amendment introduces a clause to immunize forest official from prosecution without the prior sanction of the state under Section 197 of the Criminal Procedure Code in line with the controversial Armed Forces (Special Powers) Act, 1958.

With the proposed changes, the central government will not only control the tribal communities but will also regain full control over the forest land at the cost of violating federal structure, constitutional rights and international commitments.

Parting note

Tribal communities, despite being the repository of traditional and ecological knowledge about forest conservation have largely been excluded from any policy decisions which are under the exclusive purview of the forest departments.

The very rhetoric of positing rights of nature versus the rights of the tribal and traditional forest-dwelling peoples itself has to be interrogated. The governments, both at the central and state level, by granting forest concessions and rights to commercial ventures, like mining and hydropower projects, have already infringed the customary rights of the traditional forest-dwellers and tribal communities. It is essential that the traditional rights of the tribal communities and forest-dwellers be preserved to protect not only their identity but also the forest ecosystem so that their knowledge and experience of safeguarding forests can be fully utilized.

The future of forest conservation lies in the future of tribal communities. Over the generations, they have now become an internal part of the forest ecosystem. Any infringement of their rights and well-being would upset the delicate balance between humans and nature and open up the forests for exploitation by more commercial interests.

As we mark the World Environment Day today, many tribal and traditional forest-dwellers continue to live in fear of being labelled encroachers and being evicted from their homes and land. The future of India’s forests is in their hands.

Authors

Nishant Sirohi

Nishant is a Law and Society Fellow at Tandem Research. He is trained as an advocate, and his research interest is in the relationship between constitution law, human rights and development - issues of poverty, national and global inequalities and environmental challenges. Previously, he worked as a Research Assistant at the Chamber of Senior Advocate Indira Jaising, Supreme Court of India (January 2019 - April 2020). Nishant completed his B.A., LL.B. (Honours) from Aligarh Muslim University, Aligarh in June 2017 and a Post-Graduate Diploma in International Law & Diplomacy from the Indian Society of International Law, New Delhi (2018 – 2019).