Has the environmental law been able to correct the historical injustice in forests in India?

Forests had always played a major role in the environmental history of India. Before the arrival of the Britishers, forest land was a common property resource. Far from being an open-access system that Hardin (1968) describes, India’s forests were managed, and their use was strictly mediated by social institutional structures such as caste (Gadgil and Guha, 1992) and cultural traditions (Gadgil et al, 1993). The area of east India under forests started to shrink as a part of the process of colonialism; zamindari system was empowered to tax and control the indigenous community from the access of the forest land. Right from that time more issues related to the forestry came into the picture so the imperial state took decision to territorialize forest landscapes in 1864 through formation of the Imperial Forestry Service.

With the coming of The Forest Act (1865), British had first issued the memorandum that regulates the movement of forest dwellers within the forests of India (Mohapatra, 1997). This Act gave power to the government to appropriate any land covered with trees, however, notification could only be effected, if existing rights of individuals and communities were not invaded upon. This initial act was replaced by a more comprehensive piece of legislation called as The Indian Forest Act of 1878 which was particularly concerned with removing the uncertainty about the ‘absolute proprietary right of the state’. This new act was formed to facilitate strict state control over forest resources, and was somewhat annexationist in nature. The drafting of this forest act, put forward a ‘legal sleight of hand’ that sought to remove all concessions and ‘rights’ that were not precisely granted by the state (Gadgil and Guha, 1992).

Later on The Indian Forest Act (1927) came up with more regulations and declared the forest lands into 3 categories of the forest namely- Reserved Forest, Protected Forest and Village Forest. The Act also defines the forest offence, acts prohibited inside the Reserved Forest and penalties levied on the violation of the provisions of the Act.

• Reserved Forest (RF) is an area of land under the notified provisions of India Forest Act having full measures of protection. In RF, all activities are prohibited unless permitted. Reserved Forest is described in section 3 to 20 of the IFA (1927). It is the power of a State Government to issue a prior notification under section 4 of the Act declaring that it has been decided to constitute such forest land, as specified in a Schedule with details of its location, area and boundary description, into a Reserved Forest; the appointing of Forest Settlement Officer, who is normally Deputy Commissioner of the concerned district is also notified under this Act.
• Protected Forest (PF) is an area of land under the notified provisions of India Forest Act having limited degree of protection. In Protected Forests all activities are permitted unless prohibited. Protected Forest is a mass of land over which the Government has property rights, declared to be so by a State Government under the provisions of the section 29 of the IFA (1927). It does not require the long and tedious process of settlement, as in case of declaration of a reserved forest.
• Village Forest (VF) is included under section 28 of the Indian Forest Act, 1927. The Government may assign to any village community the rights over a land which may not be a part of a reserved forest for use of the community

Post Independence, state forestry policies and land annexation processes continued with little changes, with the continuous use of the 1927 Indian Forest Act till date. The 1952 Forest Policy began and the fundamental concepts underlying the existing forest policy still hold good but with the establishment of these acts, somewhere in between the forest rights of the common individual belonging to the low caste living in the villages near to the forests or within the forests such as tribal communities were deprived. Roughly 275 million poor rural people in India – 27 percent of the total population depend on forest for at least part of their subsistence and cash livelihoods (World Bank 2006). These forest dependent groups in India contain both ‘tribal’ and non-tribal forest users. Among tribal groups ‘Schedule Tribes’ (those recognized and ‘scheduled’ under the Constitution of India) comprises of 8.6% of the nation’s total population (2011 census) and around one quarter of the world’s indigenous population.

These tribal ethnic minorities live in the forested areas. Indeed, for tribal the situation in many cases increases after Independence, as the due processes for settlement of rights according to the 1927 Indian Forest Act were often conveniently forgotten or avoided. For instance, the Government of West Bengal after independence took over feudal private forests (in which local people enjoyed use rights) without following the due legal process and so eliminated those rights (Ghosh et al.2009). In Madhya Pradesh and Orissa, large areas of the lands of zamindars and princely states were declared as ‘deemed forests’ (i.e. rights settlement anticipated). However, the required legal processes of settlement of rights has still widely not taken place and so, by default, no rights were granted; even the community forests legally recognized by the colonial administration in Bastar, were declared as state protected forests without the due legal processes being followed. The historical processes discussed above had failed to provide tribal and non tribal to control, manage and use of hereditary forest lands in a systematic or allocated way rather these acts had widely negated their rights. In this way forest peoples have become ‘encroachers’ on their own customary land in the eyes of the law.

So after long time, The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) legally recognizes the rights of tribal communities to live in their forests and to protect and manage their lands. This Act was created to reverse the deterioration of their traditional rights by forestry policies, encroachment on their lands by outsiders and the take-over of their forests but the Act itself is being threatened. Here is the case of Dongria Kondh tribe of Odisha state, who collect over 200 foods from their forests, as well as other products for medicines, household goods and for sale. This community is fighting for Niyamgiri hills which are home to them against Vedanta Resources, who want to invade this hill range and create a bauxite mine over that land. In December 2012, the PMO issued a directive to reduce the effectiveness of the FRA (2006). The matter of concern here now arises that whether tribal people should be able to reject the projects, like mines and dams, on their lands. In 2009 the FRA was strengthened by a government order that stated that their consent was needed for such projects, but that has now been weakened. Tribal people have been blamed for degrading forests for example-slash and burn farming, cutting of wood for fuel and building. On the other hand forest officials see Adivasis as ‘the problem’ and tried to exclude them from the forests and from decision-making.

When the Act was being debated, conservationists and foresters filed nine cases, two in the Supreme Court, to challenge the Act. They did not succeed in stopping the Act from becoming law but have managed to slow its implementation. Rather than calling them ‘the problem’, tens of thousands of tribal communities are and have been protecting their forests for generations. The FRA grants their ‘right to protect, regenerate, or conserve or manage any community forest resource, which they have been traditionally protecting and conserving for sustainable use’. One important debate was raised that whether the Act gave village assemblies the right to give their consent to projects that affect their lands. So the circular was issued in 2009 stating that the written consent of the Gram Sabha must be obtained before any changes happen to forest lands. The PMO has attempted to temper the force of this Act, by instructing the relevant ministries that Gram Sabha consent is not needed in all cases and both the Environment and Tribal Affairs Ministries have accepted the change but the Supreme Court verdict on the Niyamigiri mine, restating the rights of the Dongria Kondh to give or withhold their consent to the mine.

The Forest Rights Act is not much perfect and has not been implemented thoroughly enough, but still it can be use as the best instrument for protecting the rights of India’s Adivasi people. By reducing the effect of the Act in the interests of industry and development is a dangerous violation of the rights of tribal and must be stopped.