In February 2002, the Supreme Court of India passed an order prohibiting state governments and also tribals and other traditional forest dwellers from removing dead, dying trees and grasses and trees felled by winds.
This was followed by a handbook being distributed by the Ministry of Environment, Forests and Climate Change (MoEF&CC) prohibiting tribals and other forest dwellers from utilizing forest produce for their livelihood needs.
In 2004, a Central Empowered Committee (CEC) was appointed by the Supreme Court mandated to prevent any foliage removal in protected forests such as in sanctuaries and national parks. In this, instead of negotiating and protecting forest dwellers and tribals and defining their rights over forests, tribals and forest dwellers were declared by the CEC as encroachment and recommended their immediate eviction.
The Centre for Equity Studies (2007) reports that India’s protected areas are inhabited by about 4 million people in total, who depend on the forests for crucial livelihood needs such as food and firewood. Here, instead of eviction, protecting forest dwellers and their rights over forests can become a more important issue in policies regarding forest conservation.
Legislation in India for Forest Conservation
The chief legislative document in India for forest conservation is the Forest Conservation Act, 1980, which was enacted on October 25th, 1980 (GoI, 2013). This was followed by many amendments to the Act, a framework provided in the form of Forest Conservation Rules, 2003 and also various guidelines which have been issued from time to time. The Forest Conservation Act, 1980 is also supported in forest conservation in India by other legislative documents such as the Wildlife Protection Act, 1972 and the National Forest Policy, 1988.
The Act is said to provide for the conservation of forests over the entire territory of India except for the state of Jammu & Kashmir. The Act provides for extensive powers for the Centre over State Governments in the case of forest conservation. State Governments would require prior permission from the Centre to derecognize reserved forests, use forest land for non-forestry purposes, assign forest land by lease to private entities, and to clear forests for re-afforestation. The Centre appoints an advisory committee to deal with matters relating to forest conservation under the provisions of the Act. This allows the MoEF a more streamlined framework with which to approach forest conservation.
The enactment of the Forest Conservation Rules, 2003 succeeded the Forest Conservation Rules set up in 1981 (GoI, 2013). The Forest Conservation Rules, 2003 established a detailed framework for interpreting the various provisions of the Forest Conservation Act, 1980. This is accompanied with guidelines, one of which concerns the development of forest land occupied by tribal populations.
The guidelines say that settlements of forest dwelling communities should be treated at par with revenue villages, which is a step back against considering some of these communities as an intrinsic part of the forest.
Dr. V. K. Bahuguna, Inspector General of Forests, differs with the MoEF&CC view, in that he explicitly mentions that the conflict between the State Governments and forest dwelling communities over forest resources is not in the interests of forest conservation for the MoEF, who instead tend to separate forest dwellers from the rest of the forest. Bahuguna instead says that the development of tribal communities and protecting forest dwellers should be included as an essential part of forest conservation (V.K. Bahuguna, 2013).
Forest Conservation and Protecting Forest Dwellers
After the 2002 Supreme Court order that banned forest dwellers from gathering dead, dying trees and grasses and trees felled by winds, the MoEF&CC rescinded to draft a Bill that would define minor forest produce and provide for their acquisition by forest dwellers.
The MoEF in 2004 announced the introduction of a draft Bill named the State/Union Territory Minor Forest Produce (Ownership of Forest Dependent Community) Act, 2005 (The Hindu, 2004). The Bill has however, has remained a draft Bill, especially with the introduction of the Forest Rights Act, 2006, which opened up a new framework of providing rights to tribal communities and protecting forest dwellers.
The draft Bill introduced by the MoEF aims to provide for the acquisition of minor forest produce, thus protecting forest dwellers’ daily livelihood activities in gathering essential resources from forests. By minor produce, what is specifically defined is all non-timber produce from forests as notified by the home State/Union Territory as minor produce.
This can include items like honey, wax, lac, tusser, etc and excludes the unrestricted cutting of wood as firewood. It also excludes the hunting of wild animals, especially protected species, although animal products such as honey and wax can be extracted, apart from domesticating certain animal species.
The identification of candidates for endowment under this Act is dependent on the State / Union Territory Government’s identification of forest dependent communities, who can also make rules for carrying forward the provisions of the Act. The Act also permits trade in this minor forest produce, which is a practise common among many forest dwelling communities.
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 however, has become the watershed legal document in terms of guaranteeing rights to tribals and other forest-dwelling communities. The Act recognizes the rights of occupation of forest lands by forest dwelling and tribal communities even when their rights are not recorded, with the stipulation however that the occupant must have lived in the forest with at least 3 generations of lineage since 13.12.2005, with one generation being 25 years.
The Act fixes a maximum area of 4 ha for occupation of forest land, including rights for lands falling under national parks and sanctuaries. The Act allows for self-cultivation of forest land and usufructuary rights over minor forest produce falling under the aforementioned area for forest-dwellers belonging to the Scheduled Tribe category. The Act provides for in-situ rehabilitation of Scheduled Tribes who have been evicted or displaced from their forest-dwelling habitats.
These rights are heritable but not transferable and importantly stipulated that no member of any forest-dwelling Scheduled Tribes can be evicted or removed from the area the person holds rights in, which although is subject to verification. The Act recognizes Gram Sabhas as competent authorities for initiation of procedures for rights under this Act.
The Act is a huge landmark, for it for the first time clearly demarcates the rights of tribal communities in India over forest land. This makes the Act invaluable in preserving the cultures of tribal communities in India and also in correcting the historic alienation of tribal communities from land that has in many instances left them with a diminished identity.
The Bill became an Act in 2007, but for most forest dwellers, their rights are yet to be recognized. There is persistent conflict over the Act between the Ministry of Tribal Affairs (MoTA) and the Ministry of Environment and Forests (MoEF).
On the one hand, MoTA is trying to protect the rights of forest dwellers, while on the other hand, erratic resource extraction in forests by forest dwellers is earning them the MoEF’s wrath. Evictions are happening in many areas in India, with the state of Assam recording the eviction of about 40,000 families alone.
The Supreme Court’s 2002 order in effect is also having a detrimental effect for example, on the livelihood needs of people living in the Forests of Don in the Harnatand Range, turning traditional forest dwellers into encroachers into the forests. India’s national parks and sanctuaries were declared protected areas after the 2002 Supreme Court order as per an amendment in the Wildlife Protection Act, 1972, where animal resource extractions from these areas without permissions would be encroachments by forest dwellers and tribal communities.
The current quagmire presents a conflict of interest between protecting forest dwellers and working for their welfare and with forest conservation.
The Forest Rights Act, 2006 is also frequently accused of leading to the destruction of forests by conservationists. In a study carried out by the Energy and Resources Institute (TERI), the Forest Rights Act, 2006’s provision of allowing cultivation on forest land has led to the conversion of tracts of forest into agricultural farms. This is accompanied with the provision of rights over the ownership and disposal of minor forest produce in forests based on their traditional methods.
The study utilized GIS technology to carry out satellite assessments of land in Maharashtra. TERI also claimed that these practices had led to a reduction in the carbon sequestration capacities of land under forests in India. An assessment was made of the impacts of the change in land use on ecosystems and the vulnerability of the people.
According to the Parliamentary Committee on Petitions, 16th Lok Sabha in their 9th and 18th Report, the implementation of the Forest Rights Act, 2006 has led to an encroachment of about 16.21 lakh ha of forest land.
Many conservationists claim that the Forest Rights Act, 2006 will prevent the demarcation of inviolate spaces in nature free from human interference, which is necessary for wildlife conservation sometimes, with tiger conservation being a case in point. Although the Forest Right Act, 2006 lays out a procedure for resettling of people when required in order to protect wildlife, often the problem is a lot of arbitrariness in implementation along with changing habitats for animals.
Many conservationists also see the clause of allowing cultivation in forest land as an elaborate land distribution scheme that can also be appropriated by people who are not genuine forest dwellers. One could argue that allowing cultivation in forest land might encourage people to encroach less on wildlife habitats, but food habits are most likely to be largely defined by tradition notwithstanding the conditions imposed by modern civilization. In this light, the MoEF’s plan to define non-timber minor forest produce narrowly among populations that adhere more to tradition than modern machinations is bound to be incredibly inconsistent.
What has happened is that the cultivation enabled by the Forest Rights Act, 2006 has created a windfall for otherwise very poor and marginalized populations without ownership or access to land in mainstream agricultural locations.
Given that that the tribal question is one of identity, any legislation regarding protecting forest dwellers and tribal communities must offer a cohesive and structured approach that is balanced to all the peculiarities that might arise in dealing with forest dwelling populations. When the dynamic quality of tradition arises out of its peculiarities, an all encompassing modern legal instrument can only create certain ambiguities interpreted in terms of its affiliations to the modern superstructure.
For example, allowing commercial dynamics in non-timber minor forest produce might impose an unfair economic model instead of protecting forest dwelling populations and their right to consume forest resources, who might be motivated instead to participate in an unfair balance of trade, moving instead towards exploitation of forest resources than traditional subsistence livelihoods.
On the one hand cultivation of forest land under the Forest Rights Act, 2006 might place stresses on forest ecosystems due to excess extraction of forest water for example, while the food habits determined by tradition are likely to remain the same. On the other hand, limitations placed by being able to extract only non-timber minor forest produce while commercially activating these at the same time might mean legal commercial exploitation of forests while in the informal space traditional ways of life, although suppressed, could conti
Both point towards one important thing – protecting forest dwellers means synchronization of policy with their tradition as regards their habitat. This synchrony is possible if policy abandons unilateralism and a balance is found between policy, the traditions of forest dwellers and the forest habitat and ecosystem. The more synchrony is achieved, the better the chances for conservation of both forest ecosystems and forest dwellers, which only a balanced and equitable policy environment can provide.