Blow to Adivasi Rights, this time from the Modi Regime itself

The prime minister’s recent claim that his government does not favour crony capitalists is vacuous given how the Central Environment Ministry is at loggerheads with the Tribal Ministry to completely dilute the impact of the emancipatory Forest Rights Act of 2006. Meanwhile a petition by ‘conservation’ groups in the Supreme Court of India is currently challenging the constitutionality of the law itself

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Rights) Act (popularly called the Forest Rights Act), when it was enacted in 2006 brought in an important change to the way that India and government viewed the forest-dwelling individuals and communities of India.

The colonial laws of forest management like the Indian Forests Act, 1927 and laws which were brought in later by the government of independent India operated on one unquestioned premise, that the people living in the forests could not be trusted with the management of their surroundings. Forests, in India until the enactment of the Forest Rights Act, were the unquestioned fiefdom of the Forest Department. Home to some of the poorest and most isolated communities in India, the forests were sought to be managed not for the sake of people living harmoniously within these forests but with the aim of protecting the forests from human intervention.

While the aim was laudable, the actual management of the forests by the government resulted in a massive loot of forest resources and continued impoverishment of the tribals and other forest dwellers living in these forests. In fact, the continuing existence of the Naxalite insurgency within the tribal belt is a direct result of the mismanagement of the forests and victimisation of forest dwellers by an insensitive government.

What came about in 2006, through the Forest Rights Act, was recognition of the importance of the local community in the conservation of forests. This was an expression of trust in these local communities, as opposed to the local forest bureaucracies who had proven to be ineffective in either protecting the forests, the animals living in these forests or the humans inhabiting there.

The Forest Rights Act is aimed at providing tribal communities and individuals who are in occupation of forest land with formal recognition of their right to possess this land, to use and utilise forest resources in a suitable manner and to fell standing timber, subject to a limit of 75 trees per hectare, for developmental activities like building schools and hospitals. This is a law aimed at recognising the fact that many communities are used to life in the forest and these communities and their activities are actually an aid to forest conservation efforts.

This Act is now facing a constitutional test before the Supreme Court with some conservationist groups attacking the law for being anti-wildlife. The first challenge to the Act was filed by the Bombay Natural History Society which then voluntarily chose to withdraw the challenge. The BNHS withdrawal was borne out of the recognition of the fact that the initial propaganda against the Act was pernicious and had sought to create an impression that the Forest Rights Act would be the death of the Indian Forest. Many had bought into the propaganda, first circulated by Vanashakti, a conservation group, which actually ran television ads against the Forest Rights Act before its enactment.

After the enactment, implementation was, and has been slow, and this period was utilised by an assortment of conservationists, environmentalists and by ‘retired forest officers’ (who file a number of Petitions against the Act) to work up further fears about the impact of the Forest Rights Act.

The fear regarding the destruction of these forests, to put it simply, did not come about prompting the venerable Bombay Natural History Society to withdraw its challenge but other conservationist groups like Wildlife First and Nature Conservation Society have persisted. These groups have questioned the competence of Parliament in enacting the Forest Rights Act as they claim that land is a subject for legislation by the states and not the centre. This claim is incorrect because land does come under the State list, the issue of Forests is included in the concurrent list meaning both the Parliament and the State legislatures have the power to enact laws on this subject. They had also claimed that the Forest Rights Act is bad for forest-dwellers as well as they would be better served by resettlement and rehabilitation.

The constitutional basis of the argument, challenging the competence of Parliament to enact this law has not yet been argued before the Supreme Court in the two days on which these cases have been heard until now.

There was an oral observation by the bench yesterday, February 1, 2016, that the constitutionality was not in question in the existing legal challenges; the Judges also observed that the only issues raised by the Petitioners against the Forest Rights Act so far relate to problems in its implementation and the apprehension that encroachers may utilise the Act to take over forest land. This being the argument of the Petitioners, the Supreme Court has asked all states to file an affidavit within two weeks regarding the implementation of the Act, the number of claims received, the number of claims confirmed or rejected and action, if any, taken against persons whose claims have been rejected.

This order was passed as the Supreme Court thought it best to have this information before proceeding further with the hearing. The Court also vacated the interim order passed by the Madras High Court through which the High Court had directed the Tamil Nadu government to take its (the Court’s) permission before granting final rights under the Act. To clarify, the Madras High Court had allowed the process of verification and recognition of claims to go on but had had ordered that the Court’s permission ought to be taken before this recognition of forest rights was formally awarded. The Supreme Court has observed that there was no need for such an order, especially when no other State in the country was subject to such a pre-condition.

There was some mistaken reporting in the media that the Supreme Court had, during the hearing of this constitutional challenge, ordered eviction of ‘rejected’ claimants. This is incorrect. As observed by the Campaign for Survival and Dignity in their press release on the Court’s order on February 1, 2016, “There was no order directing eviction of rejected claimants and no order regarding 'encroachment', though this was mistakenly reported in some press outlets.”All the Court has asked for is information regarding statistics.

The constitutional challenge to the Forest Rights Act is before the Supreme Court but the real battle is afoot on the ground to protect the Act from the government of India itself. The Forest Rights Act, like any other welfare legislation seeking to empower local communities has been branded as anti-development by the present regime. A radical aspect of this law is that it empowers the Gram Sabhas to decide what will be done with their land, wrested in the belief that local communities must have a say on the kind of development that is undertaken.

The constitutional challenge to the Forest Rights Act is before the Supreme Court but the real battle is afoot on the ground to protect the Act from the government of India itself. The Forest Rights Act, like any other welfare legislation seeking to empower local communities has been branded as anti-development by the present regime. A radical aspect of this law is that it empowers the Gram Sabhas to decide what will be done with their land, wrested in the belief that local communities must have a say on the kind of development that is undertaken.

This principle was also affirmed by the Supreme Court in the Niyamgiri judgment, where the provisions of the Forest Right Act and the Panchayat (Extension to Scheduled Areas), Act were cited by the Court to affirm the requirement of consent from the local gram sabhas before utilising their land for the Vedanta bauxite-mining project located in the Niyamgiri hills of Orissa. This was one of the most significant judgements in support of local grass-roots democracy by the Constitutional Court. It was the Gram Sabhas who had refused permission for the mining project.

Since then, the Forest Rights Act has acquired a new foe, the government of India, itself. In the days of the United Progressive Alliance government, though there were repeated demands from within the government to dilute the Act, it is under the Modi regime, that the present National Democratic Alliance government that has launched on a course aimed at not just diluting but destroying the empowering and democratising aspects of this law.

Government committees like the T.S.R. Subramanian Committee report set up in 2014 had advised amendment of the Forest Rights Act to dilute the consent powers of the local Gram Sabhas, but the political cost of an unpopular amendment was earlier deemed too high. Since then, however, the dilution that has been proposed, and is actually happening, stealthily through executive notifications such as in Maharashtra where control over forest resources is sought to be re-appropriated by the State. The central Tribal Ministry was and is at loggerheads with the central Environment ministry. The latter is being used by the regime to completely destroy the impact of the law.[1]

A notification from the Ministry of Environment and Forests now allows private parties to initiate commercial plantations on ‘degraded’ forest land and restricts usage of the same by local communities. How this helps conservation efforts is a matter of anybody’s guess. The Government has also mandated a reduced deposit of royalties by mining companies. These deposits are again to be made into a government fund instead of advanced to the local communities who are entitled to it.

Though the state management of forests has been a proven failure – and this was acknowledged in the very enactment of the Forest Rights Act of 2006 istelf — the State seems loth to hand over democratic voice to local communities. Local communities, aware and empowered about the degrading costs of a certain model of development, could well refuse to allow such a top down take-over of forest land. The Government, accused of being crony capitalist at the best of times, could more easily negotiate terms with mining companies and other industry, little concerned with the impact on forests. At stake here is not the long-term protection of the forests but the issue of control over the largesse that forest resources represent.

This principle was also affirmed by the Supreme Court in the Niyamgiri judgment, where the provisions of the Forest Right Act and the Panchayat (Extension to Scheduled Areas), Act were cited by the Court to affirm the requirement of consent from the local gram sabhas before utilising their land for the Vedanta bauxite-mining project located in the Niyamgiri hills of Orissa.

By now we have the experience of many decades which shows that a government driven attempt at forest conservation does not work effectively. Creating no-go zones which are supposed to be patrolled by a government department just creates a niche for governmental corruption and for illegal exploitation of forest resources.

Local communities have a stake in the forest. Their way of life depends upon the continued existence of the forest. To presume that no one would live in a forest without aiming to exploit it commercially is to be disingenuous. It betrays a bias and an understanding of life as an exclusively urban phenomenon where the conglomeration of humans is going to expand manifold to take over all surrounding areas. There is also an assumption that these local communities are not, and cannot, be part of forest conservation efforts and are destined to be used by others in destroying the forests.

A city-dweller cares for his house, the road outside his house and the schools and hospitals which he uses. The city is his habitat and community participation is a beneficial and accepted part of urban planning. There is no reason to assume that the person living in the forest, used and attuned to a way of life that needs the forest and the wildlife in it to survive and prosper, will feel or act any differently regarding his habitat.

Apart from the tribals who are benefited under the Act, the Forest Rights Act also recognises rights over land for ‘Other Traditional Forest Dwellers’ who are defined as persons whose families have been living in within the forest at the same location for 75 years or more. This is necessary because not every deserving forest dwellers has been declared a Scheduled Tribe with some tribes, who are considered Scheduled Tribes in one state are not considered so in other states. There is much apprehension that encroachers will utilise this definition to enter and exploit the forests. The cut-off date for recognition of forest rights is 2005 and a claimant for forest rights has to show that he was in occupation of forest land in 2005 and that he and his family have continued to do so for the previous three generations or 75 years. The cut-off date also applies to tribals.

A welfare legislation is always open to the criticism of misuse. Or that benefits under it may be sought by people who are not eligible. This does not mean that the welfare legislation itself is a wrong step. If there are deficiencies in implementation they can be addressed and corrected. A new and young legislation like the Forest Rights Act needs some time for its impact to be felt and understood.

Today statistics of its efficacy tell a mixed story. Some statistics show a marginal decrease in forest land in tribal areas since the inception of this Act. It is nobody’s case that India’s forest cover was not decreasing before this law came about. Further, the implementation of the law has been quite tardy which makes it difficult to assess the impact of the law just as yet. Many lakhs of claims under the Act have been accepted and an equivalent number have been denied. Forest-dwelling communities are only now starting to take control over their lives and their surroundings. In at least some states, there is a marginal increase in forest cover although again, such an increase cannot be attributed to the Forest Rights Act at this stage.

The issue, when discussing laws like the Forest Rights Act, is one of community participation and empowerment. Tribals and forest-dwellers have lived in terror of eviction from their lands for the best part of a century. If they are evicted, the majority inevitably end up in city slums and squalor, which does not benefit them or the overburdened cities that they are forced to move into.

Some degree of trust in the disempowered might just be the solution that India is looking for. The Central government is in the middle of a tug-of-war with an isolated Ministry of Tribal Affairs forced to cede ground to the other Ministries to dilute the Act to allow crony corporates and the government to take over the forests once again.

Local people must have the freedom to live their own lives. This is at the heart of any democracy. Forests and wildlife are endangered in India not because of the tribals but because of the rapacity of the State and commercial interests. Letting communities, whose instinct is to defend their way of life, can only help in conserving these forests and the animals living within them.

(The writer is a Delhi based lawyer who is appearing for persons defending the act before the Supreme Court) 
  
References:
1) Forest land: Govt finalising dilution of tribal rights
2) Joint Statement on Anti-FRA Case in SC