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

Forests had always played a significant role in the environmental history of India. Before the coming of the Britishers, forest land was referred to as a common property resource. Far from being an open assessment system which Hardin (1968) describes, India’s forests were controlled, and their use was seriously mediated by social institutional structures like- caste (Gadgil and Guha, 1992) and cultural traditions (Gadgil et al, 1993). The area of east India under forests began as a part of the procedure of colonialism; the zamindari system was empowered to tax and control the indigenous community from the assessment of the forest land. Right from that time various matters related to forestry came into the picture so the imperial state took the decision to territorialize forest landscapes in 1864 via formation of the Imperial Forestry Service.

With the establishment of The Forest Act (1865), the British had first organized the memorandum that manages the movement of forest dwellers within the forests of India (Mohapatra, 1997). This Act gave power to the government to accurately identify any land blocked with trees, however, notification could only be effected, if existing rights of individuals and communities were not invaded upon. This initial act was removed  by a more comprehensive piece of legislation called The Indian Forest Act of 1878 which was particularly focused on removing the uncertainty about the ‘absolute proprietary right of the state’.

This new act was established for facilitating strict state control across forest resources, and was somewhat annexationist in nature. The drafting of this forest act, came up with a ‘legal sleight of hand’ that sought for replacing all concessions and ‘rights’ that were not completely granted by the state (Gadgil and Guha, 1992).

Later on The Indian Forest Act (1927) came forward with higher regulations and declared the forest lands into three categories of the forest named by- Reserved Forest, Protected Forest and Village Forest. The Act also explains the forest offense, acts prohibited in 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 focused provisions of Indian Forest Act which have full measures of protection. In RF, all steps are prohibited unless permitted. Reserved Forest is explained in section 3 to 20 of the IFA (1927). It is the duty of a State Government to organize a prior notification under section 4 of the Act which declares that it has been decided for constituting such forest land and specifically discussed in a Schedule with details of its location, area and boundary description, into a Reserved Forest; the appointing of Forest Settlement Officer, who is simply Deputy Commissioner of the awarded district is also notified under this Act.

Protected Forest (PF) is an area of land under the focused provisions of India Forest Act having reduced degree of protection. In Protected Forests all activities are permitted unless prohibited. Protected Forest is a mass of land on which the Government has property rights, issued to be so by a State Government under the provisions of the section 29 of the IFA (1927). It does not need the long and tedious procedure of settlement, as in the case of establishment of a reserved forest.

Village Forest (VF) is involved under section 28 of the Indian Forest Act, 1927. The Government may assigned to any rural community the rights over a land which may not be a part of a reserved forest for usage of the community. 

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

These tribal ethnic communities live in the forested areas. Indeed, for the tribal the situation in various cases expanded after Independence, as the due procedure for settlement of rights as per the 1927 Indian Forest Act were often conveniently forgotten or removed. For instance, the Government of West Bengal after independence took over feudal private forests (in which local people enjoyed use rights) without pursuing the due legal procedure and so removed those rights (Ghosh et al.2009). In Madhya Pradesh and Orissa, larger places of the lands of zamindars and princely states were referred to as ‘deemed forests’ (i.e. rights settlement anticipated). However, the needed legal procedures of settlement of rights has still highly not taken place and so, by default, none of the rights were granted; even the community forests legally associated with the colonial administration in Bastar, were declared as state safety forests without the due legal procedure being followed. The historical procedures discussed above had failed to serve tribal and non tribal to control, maintain and manage the use of hereditary forest lands in a systematic and allocated manner instead of these acts had highly negated their rights. In this way forest peoples have made ‘encroachers’ on their own customary land in the eyes of the law.

So after a later period, The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) legally associates the rights of tribal communities to live in their forests and to safe and manage their lands. This Act was developed to reverse the deterioration of their traditional rights by forestry policies, encroachment on their lands by others and the take-over of their forests but the Act is threatening itself. Here is the case of the Dongria Kondh tribe of Odisha state, who receive 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 need to invade this hill range and make a bauxite mine over that land. In December 2012, the PMO organized a directive to avoid the effectiveness of the FRA (2006). The matter of awareness here now arises whether tribal people must be able to reject the projects, such as- mines and dams, on their lands. In 2009 the FRA was powered by a government order that stated that their consent was required for such projects, but that has now been loosened. Tribal people have been blamed for degrading forests for example-slash and burn farming, wood cutting for fuel and building. On the other hand, forest officials called Adivasis ‘the problem’ and tried to exclude them from the forests and from decision-making.

When the Act was being controversed, conservationists and foresters filed nine cases, two in the Supreme Court, for challenging the Act. They did not win in stopping the Act from becoming legal but have controlled to slow its implementation.. Instead of calling them ‘the problem’, tens of thousands of tribal communities are and have been saving their forests for generations. The FRA grants their ‘right for protection, regeneration, or conservation or management of any community forest resource, which they have been traditionally protecting and conserving for sustainable use’. One major debate was raised whether the Act gave village assemblies the right to provide their consent to projects that affect their lands. So the circular was organized in 2009 stating that the written consent of the Gram Sabha must be allowed before any changes happen to forest lands. The PMO has attempted to temper the force of this Act, by suggesting the relevant ministries that Gram Sabha consent is not required in all cases and both the Environment and Tribal Affairs Ministries have adapted the change but the Supreme Court verdict on the Niyamigiri mine, restating the rights of the Dongria Kondh to provide or withhold their consent to the mine.

The Forest Rights Act is not perfect and has not been implemented descriptively enough, but still it can be used as the best instrument for protecting the rights of India’s Adivasi people. Limiting the effect of the Act in the interests of industries and development is a hazardous violation of the rights of tribal people and must be stopped.