Joydip Ghosal, Doctoral Candidate, WB NUJS, Kolkata, Guest Lecturer, Surendranath Law College, Kolkata
In this article author tried to reveal the process whereby through the development of capitalistic forest policy and legislation, the traditionally held rights of forest dwellers have been progressively curtailed. It is very much true that the development of social policy is determined largely by the needs of the dominant groups in society— before independence, by the strategic needs of the colonial masters and after independence, the needs of the capitalists and as usual the tribal continue to face tremendous situation. With the growing consciousness on environmental issues, the problem of deforestation has become a live subject of discussion.
Forest has occupied an important position in India from ancient times. The Mahabharata and the Ramayana give picturesque description of forest live in Dandakarnya and Nandavana. Several kings like Ashoka and Shivaji issued orders encouraging the planting of trees along the roads and on camping sites and prohibited the cutting of fruit trees. During the Vedic period, trees were appreciated for their value, shade and medicinal properties and in fact there is strong evidence that the linkages between deforestation and climatic changes were understood.
Before the advent of the British in India the regulation of people’s use of forests was mainly done through local customs. Several temples had forests regarded as sacred and cutting of trees was prohibited. After the advent of the British the traditional rights of the tribal were no longer recognised as rights. In 1894, they became “rights and privileges” and in 1953 they became “rights and concessions”; they were later being regarded as “concessions”. Before 1947, forests were strategic raw materials crucial for imperial interests such as railway expansion and the world wars, in the post-independence period; it has been the commercial, industrial interests who have dictated forest policy.
Points to remember
- 1 HISTORY AND DEVELOPMENT OF TRIBAL RIGHTS IN FOREST
- 2 FOREST LAWS BEFORE INDEPENDENCE
- 3 FOREST LAWS AFTER INDEPENDENCE
- 4 PROTECTION OF TRIBAL PEOPLE AND NATURAL RESOURCES UNDER THE CONSTITUTION
- 5 EVALUATION OF FOREST LAWS
- 6 INTERNATIONAL INITIATIVES TO PROTECT THE TRIBALS
- 7 THE SUPREME COURT AND TRIBAL’S RIGHT IN FOREST
HISTORY AND DEVELOPMENT OF TRIBAL RIGHTS IN FOREST
The crucial watershed in the history of Indian forestry is undoubtedly the building of the railway network. This was created to meet the need for rapid troop communication felt after the Mutiny of 1857 and for enabling the characteristic pattern of colonial trade. Great chunks of forest were destroyed to meet the demands for railway sleepers. Before the coal mines in Bengal and Bihar became fully operative, the railway companies also indulged in widespread use of local timber as fuel for the locomotives.
The concept of state-owned natural habitats in India came into existence in the 19th century with the creation of reserved, protected and village forests by the British. The role of the state as landlord created a dual problem. On the one hand, it imposed the British legal system on an ethnocentric legal order based on customary usage and norms guided by ecological parameters. On the other, it paved the way for a Western model of conservation inherently established on the duality of man and nature.
Before British, natural resources were shared in common by the rural and tribal people. The notion of legal ownership as understood in modern law was absent and forest dwelling communities enjoyed their rights over natural resources even in forests that fell within the purview of the various local kingdoms. The absence of the notion of property did not necessarily imply an absence in the idea of ownership. Dwelling in and working in the forest over years bestowed upon the local community’s occupancy rights or communal native titles derived from their ancestral dominion of land.
The British introduced the concept of property with the imposition of a colonial legal system on an already existing pattern of forest use and protection, an age-old tradition governed by customary usage and common law. They created forest laws for the specific purpose of appropriating natural resources and the easiest way of extracting and controlling these resources was by establishing absolute rights over them. The idea of property was introduced by the British as absolute rights locally vested in a body or in an individual over any land and its resources.
FOREST LAWS BEFORE INDEPENDENCE
The beginning of a systematic forest policy begin in 1855 when the then Governor-General Dalhousie issued a memorandum on forest conservation. He suggested that teak timber should be retained as state property and trade in teak should be strictly regulated. In 1856, Dietrich Brandis, a German botanist was appointed as the first Inspector-General of forests to the government of India. It was under his guidance, that the forest department was organised and the first forest Act was enacted.
THE INDIAN FOREST ACT, 1865
The first Indian Forest Act was enacted by the Supreme Legislative Council. The Act was enacted to regulate forest exploitation, management and preservation. For the first time an attempt was made to regulate the collection of forest produce by the forest dwellers. The forests dwindled and the rights of the local people to the forest produce had also eroded. The law was nothing but the formalisation of these changes. Thus, the socially regulated practices of the local people were to be restrained by law.
THE INDIAN FOREST ACT, 1878
The Indian Forest Act of 1878 enhanced the government control over forest. Under the Act, forests were divided into (a) reserved forests, (b) protected forests, and (c) village forests. Persons were to be notified to record their claims over land and forest produce in the proposed reserved and protected forests. Certain Acts like trespass or pasturing of cattle were prohibited. Provisions were also made to impose duty on timber and for private forests.
THE FOREST POLICY RESOLUTION, 1894
In 1894, the then British government declared its first forest policy resolution in which state control and commercialisation of forest again formed the dominant motif. The basic aim of the policy was apparently to conserve forests that were being fast depleted. The resolution declared that the sole object with which the State forests were to be administered was the public benefit. It was specified that the claims of cultivation were stronger than the claims of forest preservation and that whenever an effective demand for cultivable land could be supplied from forest area it should be ordinarily granted without hesitation.
THE LAND ACQUSITION ACT, 1894
The Land Acquisition Act, 1894 conferred power upon the State for the acquisition of land for “public purpose”, enabling the subsequent enactment of the Indian Forest Act and the Indian Mines Act respectively. Eminent domain is only for reasons of public welfare. The term “public purpose” has not been defined in the Act and it has been left to the state to decide what it is. Even though there are provisions in this law for objections and appeals, they are so arcane that it is impossible for tribal to go to the courts and ensure their rights under them. The Indian Government continued with this Act too after independence and used it indiscriminately to acquire land for development projects.
In this Act, the British relied on another legal principle called “res nullies” which means that any property which does not have a documented legal owner can be assumed to be legally unburdened. As the tribal had a communitarian oral culture there was little conception of private property in land among them and absolutely no documentation.
THE INDIAN FOREST ACT, 1927
The Forest Act of 1927 prescribed the manner in which forest resources could be exposed to industrial and commercial exploitation. Elaborate provisions were made to extend state control over forests. Section 5 of the Act provides that any fresh clearing, failing of trees, breaking up of land for any purpose is prohibited in a reserved forest. Also, any right over the lands of reserved forest can be acquired only by succession or under a grant by way of written contract made by the government. Provisions were also made for taking over the management of private forests in certain cases. Forests officers were defined as offences punishable under the Act and the Rules made there under.
FOREST LAWS AFTER INDEPENDENCE
THE NATIONAL FOREST POLICY, 1952
In the National Forest Policy, 1952 it was declared that the forest policy should be based on paramount national needs. In a way this was an extension of the colonial British policy and it was laid down that the claims of communities living in and around forests should not override national interests. The concept of national interest was interpreted in a very narrow sense. The destruction of the forests for the construction of the roads, building of irrigation and hydro-electricity projects, ammunition factories and other projects were justified in the name of national interest. India’s technically skilled professional forest service thought mainly of increasing the revenue from forests, treating tribal as the enemies of the forest.
THE NATIONAL COMMISSION ON AGRICULTURE, 1976
The Commission devoted Part IV of its report to forestry. It advocated commercialization of forests at all costs and recommended regularization of forest dwellers rights over forest produce. The Commission stated that the production of industrial wood. The Commission recommended a drastic reduction in people’s rights over forests. It was stated that free supply of forest produce to the rural population and their rights and privileges has brought destruction to the forests and so it is necessary to reverse the process.
The Commission also recommended strengthening forestry legislation for effective implementation of forest policy and enactment of a revised all India Forest Act. In 1985, an administrative change of some significance took place. The Department of Forest was taken out of the control of the Ministry of Environment.
THE FOREST CONSERVATION ACT, 1980
The Forest Conservation Act was passed in 1980 and subsequently amended in 1988. This amendment was taken place after the forest department was transferred from the Ministry of Agriculture to the Ministry of Environment and Forests (MoEF), thus shifting the focus from revenue-earning to conservation. This Act aimed at conservation of forests and wildlife and greater state control in reserved forests and provided for penal measures in case of contravention of these provisions.
THE NATIONAL FOREST POLICY, 1987
The National Forest Policy in 1988 for the first time spoke about the conservation of biological and genetic diversity, restoration of ecological balance, the preservation of the remaining natural forests and the establishment of an extensive protected areas network. The policy spoke about a forestation and social forestry programmes, but primarily focused on the conservation of eco-systems, wildlife and bio-diversity and the restoration of ecological balance. The policy further spoke about the intrinsic relationship between forests and local communities, the protection of their customary rights and recognised the importance of forests as a means of livelihood. It was perhaps the first time that a policy document endeavour to strike a balance between conservation and the rights of local communities over them. But the problem was that the policy was not backed up by any legislative enactment.
THE JOINT FOREST MANAGEMENT
The Joint Forest Management was launched as a model of participatory forest management effort. The sources of authority for this programme are the Forest Policy Document of 1988 and a circular of the central government in 1990. Through the circular, the central government issued guidelines for involving village communities and voluntary agencies for regeneration of degraded forest lands. The guidelines envisaged formulation of a Joint Forest Planning Management Scheme, involving preparation of plans for the development and protection of forests with community participation and management. But the crux of the matter is that the programme does not have a legal basis. This means that the activity is possible only at the discretion of the government and can be withdrawn at any time.
THE 73rd CONSTITUTIONAL AMENDMENT
In 1992, the 73rd Amendment to the Constitution, which formalized the Constitution of Panchayats as micro institutions of governance, empowered these self-governing bodies to deal with matters concerning forests and other natural resources related matters. Finally, the Panchayat Extension of Scheduled Areas Act, 1996 (PESA) and the Panchayat Raj Act, 1998 conferred ownership of minor forest produce to Gram Sabhas and Panchayats. The JFM notification and the 73rd Amendment were small steps towards bringing back people within the ambit of Indian forest law, and the panchayat laws of 1996 and 98 were infinitely bolder and more positive steps towards social justice.
THE PANCHAYAT EXTENSION OF SCHEDULED AREAS ACT, 1996
It is an important law to improve the governance of the Scheduled Areas in such a way so as to protect the interests of tribal. The main idea of this law is to provide greater strength to the village community to protect the community interests. The PESA firmly established the Gram Sabha as the most basic unit of the Panchayati Raj set up. A limitation of the PESA law is that it is applicable only to those areas which are legally regarded as Scheduled Areas. A significant number of tribal living outside the Scheduled Areas are not covered by this legislation. Though PESA gives the rights of control of natural resources, including minor forest produce (MFP), to the respective local communities, has remained largely unimplemented by individual states, since land use is a state subject. States, in their attempts to invite investment, have been reluctant to uphold legislation such as PEAS.
THE FORESTS ACT, 2006
Recently government realized that forests have the best chance to survive if communities participate in its conservation. Recognition of forests rights enjoyed by the forest dwelling Scheduled Tribes on all kinds of forest lands for generations and which includes both bona fide needs of forest land for sustenance and usufruct from forest are the fundamental bases on which the legislation stands. The purpose of the Act is to recognise the rights of forest-dwelling communities and to encourage their participation in the conservation and management of forests and wildlife.
The provisions of the Act are in addition to and not in derogation of other laws that are in force, such as the Forest Act, the Forest Conservation Act etc. As a result, while forest dwelling scheduled tribes (FDSTs) and other traditional forest dwellers may be vested with certain forest rights under the Act, they may be unable to exercise them because they may be subject to the provisions of the other applicable laws. Problems may also arise regarding the jurisdiction of the various authorities under these separate but overlapping laws.
PROTECTION OF TRIBAL PEOPLE AND NATURAL RESOURCES UNDER THE CONSTITUTION
The Constitution of India has adopted special measures for the protection of the interest and welfare of the tribal people. Article 164(1) provides for the appointment of Minister for Tribal Welfare in the states of Bihar, Orissa and Chhattisgarh to take care of the tribal. The Parliament has also enacted the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to prevent the commission of offences of atrocities against tribal and it also contains provisions to establish special courts for the tribal for such offences. The relief of rehabilitation has also been provided to the victims of such offences under this Act. In M. C. Mehta v. Kamal Nath, the Supreme Court laid down the doctrine of “Public trust” whereby the government is visualised as a public trustee and not as the owner of resources. It holds the resources in trust, to be used for the benefit and welfare of the people. As a trustee, it has to protect, maintain, manage and constantly endeavour to improve their quality.
To protect the cultural identity and socio-economic independence, the Constitution of India has put the tribal under Fifth and Sixth Schedule. The Fifth Schedule of the Constitution has provided the provisions as to administration and control of Scheduled Areas and Scheduled Tribes as required under Article 244(1) of the Constitution. The Governor of a state has been empowered to govern the tribal people. The Seventh Scheduled has special provisions for such administration of Tribal Areas in the states of Assam, Meghalaya, Tripura and Mizoram. The Supreme court in Samatha v. State of Andhra Pradesh, explained the position of the administration of Scheduled Areas as follows— the state, by cabinet form of government, is a persona ficta, a corporate sole. The Constitution empowers the state to acquire, hold and dispose of their property. The Governor in his personal responsibility is empowered to maintain peace and good government in Scheduled Area.
The Sixth Schedule to the Constitution empowers the Governor to regulate allotment of land. It imposes total prohibition on transfer of land in Scheduled Areas. The object of the Sixth Schedule is to preserve tribal autonomy, their culture and economic and political justice for preservation of peace and good governance in the Scheduled Areas. It was also made clear that executive power of the state under Article 298 and legislative power of the state are subject to the provisions of the Fifth Schedule. Thus, any law regarding the regulation or transfer of land by the state legislature is governed and delineated to the provisions of the Sixth Schedule.
Under Article 275,the Union Government has been asked to provide Grant-in-aid (each year) for the purpose of promoting welfare of the Scheduled Tribes and under Article 330(1) reservation of the seats have been made in the House of People. The number of seats in any states shall be made on the basis of the size of the population of tribal people in the state. Article 332 provides for reservation of seats for Scheduled Tribes in legislative assemblies of every state (except in Tribal areas of Assam, Nagaland, Meghalaya and Mizoram). But at the same time, Scheduled Tribes may also contest any seats other than the reserved seats.
EVALUATION OF FOREST LAWS
Continued exploitation of natural resources for increasing economic growth brought with it associated environmental problems. However, these problems were not addressed by the government until 1971, when the Planning Commission wrote a report on the state of India’s environment in preparation for a 1972 UN Conference on the Human Environment. Subsequently, a National Committee on Environmental Planning and Coordination (NCEPC) was formed in 1972 to act as an apex advisory body in all the matters relating to environmental protection and improvement. The fifth Five Year Plan (1974-79) stated that the NCEPC should be involved in all major industrial decisions, so that development can be balanced with environmental management. From all these, environmental decisions for the nation were de facto handed over to a group of bureaucrats, whereas the public, which was at the receiving end of these developmental policies, had no role.
In India, the central government has claimed sole jurisdiction over environmental matter because, the environmental rules were derived from international obligations, as India was a signatory to the 1972 UN Declaration. In 1976, the 42nd Amendment to the Indian Constitution moved the subject of ‘forest’ and “protection of wild animals and birds” from the State List under the Seventh Schedule to the Concurrent List bringing them within the purview of the Centre. It was under these legal bases that the Air Act of 1981 and the Environment Protection Act of 1986 were enacted with no public debate or state role.
The Industrial Policy Resolution of 1956 gave primacy to role of the state to assume a primary responsibility for industrial development. The government established large industrial establishments as Public Sector Units (PSUs) through the 60s and 70s, and it tightly regulated the private sector. The government ownership of industries resulted in a conflict of interest within the government which had to promote industries as well as to address environmental concerns. Given that, environmental concerns were introduced to the government much later after these industries were set up, and only because of external forces (through UN Declarations), industrial interests were prioritized over environmental issues.
INTERNATIONAL INITIATIVES TO PROTECT THE TRIBALS
There has always been a movement to protect and preserve the identity and rights of tribal people. The term “indigenous people” has been used for such persons. After the Second World War, various efforts have been made to recognise and implement the rights of tribal people. The International Commission on Environment and Development in 1987 cautioned that tribal and indigenous people would need special attention as the forces of economic development disrupt their traditional life-style that can offer modern societies many lessons in the management of resources in complex forest, mountain and dry land ecosystem.
The Commission also recommended for the recognition of their traditional rights, to give them right to have a decisive voice in formulating policies about resource development in their area. The starting point for a just and human policy for such group is the recognition and protection of their traditional rights to land and other resources that sustain their way of life—rights they may define in terms that do not fit into standard legal systems.
THE RIO DECLARATION, 1992
The Earth Summit, 1992 affirming the Stockholm Declaration of 1972 held at Rio-de-Janeiro, also proclaimed that Indigenous people and their community has a vital role in environmental management and development because of their knowledge and traditional practices. State should recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.
THE CONVENTION ON BIOLOGICAL DIVERSITY, 1992
The Convention on Biological Diversity, 1992 also recognised the customary use of biological resources according to traditional cultural practices. It was also declared that traditional practices are relevant to the conservation of biological diversity and therefore, national legislation to respect and preserve the knowledge and practices of indigenous people and local community must be passed. It was recognised by the Convention that indigenous people are closely depended on biological resources and have knowledge, innovations and practices relevant to conservation of biological diversity and the sustainable use of components. Now, almost all the nations have ratified and adopted it.
THE INDIGENOUS AND TRIBAL POPULATIONS CONVENTION, 1957
India ratified the Indigenous and Tribal Populations Convention, 1957, a Convention concerning the protection and integration of indigenous and other tribal and semi-tribal populations in independent countries on 29.09.1958. A subsequent revision to the Convention in 1989 still awaits India’s ratification. The revised Convention adopts new international standards on the subject with a view to remove the assimilationist orientation of the earlier standards. It recognises the aspirations of these people to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the states in which they live.
THE SUPREME COURT AND TRIBAL’S RIGHT IN FOREST
In the beginning the judiciary seemed to have rejected the plea of environmental degradation when the state attempted to monopolise private forests for being distributed among agricultural labourers.
In State of Kerala v. Gwalior Rayons the Supreme Court observed that a law vesting ownership of forest in the state was found as valid an agrarian reform bringing benefits to landless labourers, tribal people and other proletarian groups in a populated state. The court refused to entertain the plea of large-scale deforestation and ecological imbalance on the ground that the state is vested with the power to make a suitable law for agrarian reform.
In State of Tripura v. Sudhir Kumar Ranjan Nath, the Supreme Court did not dismiss the Forest Act as a mere taxing enactment, but considered it as one to preserve, protect and promote the forest wealth in the interests of the nation.
In Pradeep Krishen v. Union of India, the Supreme Court observed that if one of the reasons for the shrinkage in the entry of villagers and tribal living in and around the sanctuaries and the national parks, there can be no doubt that urgent steps must be taken to prevent any destruction or damage to the environment, the flora and fauna and wildlife in these areas.
In Samatha v. State of Andhra Pradesh, the Court held that government lands, tribal lands and forestlands in the Scheduled Areas could not be leased out to non-tribal or private companies for mining or industrial operations. However, the Supreme Court in a latter judgment in Balco Employees’ Union v. Union of India limited the application of the Samatha judgment only to the state of Andhra Pradesh. The Court also expressed its reservations about the correctness of the Samatha decision and suggested that the matter be decided by a five judges Constitutional Bench. However, till date, no such reference has been made.
The outcome of the case of T. N. Godavarman Thirumulkpad v. Union of India was set of Supreme Court orders that effectively constrained the rights of tribal. When the Court forbade the Union Government to allow indiscriminate encroachments without its permission, it was erroneously interpreted as an eviction notice of the tribal by the MoEF, and this led to large scale eviction drives. Widespread protests led to re-affirmation on the part of the MoEF to follow the 1990 guidelines, but in spite of this, evictions continued.
Through this analysis, it was found that, before 1947 Indian forests fulfilled the strategic interests of British imperialism and after independence the needs of the mercantile and industrial players. In both these periods, the impact of state policies on the tribal communities deriving sustenance from the exploitation of forests has been a uniform one. It has been shown, how the strategies evolved by colonial management have been taken over by post-colonial forest policy and further been modified and protected. The principles of state monopoly and exclusion of forest communities on which they are based, have been utilized by Indian forestry to serve the interests of dominant classes.
In a country like India, the environment is a source of livelihood for many, particularly the tribal. Environmental degradation has tremendous human costs. It hits the tribal most and directly too. Unfortunately, even conservation projects necessary for promoting national or global interests, such as the preservation of biodiversity, have an adverse impact on the tribal. If, for example, the dependence of the tribal on forests for livelihood is seen as a hindrance to their conservation, particularly of wildlife, the adverse effect of the projects on the tribal would have to be minimized. The tribal would have to be properly compensated and resettled in case they are shifted out of national parks or wildlife sanctuaries.
It is well established that the forest region of India, despite being resource rich, inhabits the poorest people who have not benefited from social and economic development to the same extent as people in other regions have. They must include treating tribal as partners in profit—partners contributing land as capital. Ignoring the importance the socio-cultural and environmental aspects of forests, the government has made all-out efforts to bring resource-intensive mode of development that would create ecological instability and violate the fundamental rights of people.
Across India, forests conserved by local communities for decades are being handed over to powerful commercial interests. This is in the name of “development at all costs” that accompanies the countries quest to become one of the world’s fastest growing economies. At stake are lacks of hectares of bio-diversity rich natural resource systems, the livelihoods of several million people who depend directly on these forests. In fact, in many cases, destructive development activities, rather than the activities of tribal and other forest-dependent communities, are responsible for the over-exploitation, neglect and denudation of forests.
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