In a democracy of 84,326,240 tribal people
"The crucial watershed in the history of Indian forestry," writes historian Ramachandra Guha in his essay
The Prehistory of Community
Forestry (
Environmental History, April 2001) "is undoubtedly the building of the railway network", 1853 onwards. An annual demand of
over a million railway sleepers translated into an unregulated assault on forests; among others, the sal forests of Garhwal and Kumaon were
devastated. Realising forests weren't inexhaustible, the British had to opt for sustained-yield forestry and so formed the Imperial Forest Department
in 1864. But this newly-formed proprietor had an immediate problem it had no rights over India's forests.
Solution legislate
The Indian Forest Act, 1865 defines 'forest' as "land covered with trees, brushwood and jungle". Its main purpose was to facilitate extraction for
railway work. The act was inadequate so far as state control was concerned.Its definition of 'forest' inhibited government from raising plantations
on barren land.
Then in 1869, the government circulated a draft legislation to the provinces. It assumed ownership, and use, of forests vested in the State;
therefore the customary rights people had hitherto enjoyed were to be limited, or extinguished. Despite objections from the Madras Presidency the
bill was passed.
The Forest Act 1878 did not define 'forest'. It classified them into three types on the basis of function. 'Reserve forests' were for commercial
exploitation; its establishment was preceded by a legal settlement that extinguished people's customary rights, or transferred them as "privileges" to
be exercised elsewhere. Limited use was allowed only in exceptional cases. Then there were 'protected forests', where rights were recorded but not
settled. In such forests, the forest department could prohibit grazing, or any use it perceived as harmful to the forest; such forests could also be
converted to 'reserve forests' when required. Thirdly, there were 'village forests', about which comments Guha "But as these lands had first to be
constituted as reserved forests, the procedure aroused suspicion among the villagers, and this chapter remained a 'dead letter'."
The State began to establish firm control; increasing demand for wood products were met by expanding the area under the act and converting
protected forests to reserve forests by the turn of the century, according to
Colonial Forest Policy in India Tenurial Issues in Indian
Forestry by N C Saxena, "some 20 million hectares (m ha) of land was brought under Reserve Forests".
In the interim, the government clarified the scope of its control. In the Indian Forest Policy, 1894, 'Forest' was not defined, but functionally
classified. There were a) First Class forests forests for preservation, especially on hill-slopes; b) Second Class forests for supply of timber and to
meet commercial needs; such forestland could also be diverted for agricultural use; c) Third Class forests minor forests, with inferior timber and
lesser growth; these could be used for the fuelwood and fodder needs of local populations; and d) Fourth Class forests pasture lands, which were forests only in name. The bulk of ownership remained with government; communities had limited rights, in the form of servitude, not as full owner.
Fallouts
The 1878 Act along with the 1894 policy enabled large-scale conversion of forestland to agriculture--to generate revenue--between 1875 and 1925;
a fallout was a huge decimation of wildlife 80,000 tigers, 150,000 leopards and 200,000 wolves were killed for bounty in this period, according to a
draft discussion paper of
atree.Rights over forests in the hilly states were severely curtailed, and protests broke out
peasant movements have been recorded in the Kumaon hills in 1904, 1906, 1916, 1921, 1930 and 1942. The most significant one was in 1921. It
included labour strikes, and state-owned pine plantations were torched. Some 395 incidents of fire were reported on 99,555 ha of forests. The
government had to concede proper rights to village communities.
Indeed the act provoked major rebellions against colonial forestry. Guha lists "In Chotanagpur in 1893, in Bastar in 1910, in Gudem-Rampa in
1879-80 and again in 1922-23, in Midnapur in 1920, and in Adilabad in 1940. These rebellions sometimes extended over several hundred square miles
of territory, involved thousands of villagers, and had to be put down by armed force. Even where discontent did not manifest itself in open rebellion,
it was expressed through arson, noncompliance, and breaches of the forest law".
An effect of the rebellions was that when the colonial government framed the Forest Act, 1927--still in use--it introduced a process of settling the
customary rights of users under various sections. It did not define 'forests', but laid down detailed procedures to notify three types of forests a)
Reserve Forest, over which people had no rights; b) Protected Forest, where rights were recorded, which the government had full powers to revoke;
and c) Village Forest, whose conservation was desirable, whether burdened or free of rights of the user.
The British left behind a department that was the country's biggest landlord according to Saxena, the areas under Reserve and Protected Forests
were 31 m ha and 15 m ha respectively.
1947-1971
1947-1971 has been called the 'extractive phase' of Indian forestry. Its direction came from the first policy statement of the Indian government the
National Forest Policy, 1952. The policy did not define 'forest', but classified them functionally into four categories a) Protection forests; b) National
forests; c) Village forests; and d) Private forests and tree lands.
The functions of protection and village forests remained unchanged. National
forests were to meet defence, communications and industry needs with increasing yield. The State maintained its control over forests. Private forest
owners had full rights, but communities had only limited rights in the form of servitude and only in certain classes of forests.
Sustained supply of timber and forest produce for industry was a main plank of the policy. Forestry was predicated upon national interests. Madhu
Sarin has shown what this emphasis led to in the states. Blanket notifications by state governments declared all kinds of lands--
nistari and
gramya jungles (village forests), village grazing lands, natural grasslands, alpine pastures, village ponds and wetlands, areas inhabited by
'primitive tribal groups' and lands under shifting and/or settled cultivation by tribal communities--as state 'forests'.
"Such takeover resulted in two critical changes. One, local users with maximum stake in forests were deprived of authority to manage them; and two, management objectives changed from fulfilling local needs to revenue generation for the state". Further, a vital safety clause-- state intention to reserve an area as forest also requires appointment of a forest settlement officer to settle claims of pre-existing occupants and users--was often dispensed with.
Forest management turned into a mess the forest department is yet to resolve "Many forestlands are yet to be surveyed and land rights of pre-existing occupants not settled. In many cases, the areas are yet to be finally notified as forests under the Indian Forest Act, 1927. Therefore, even their legal status as state 'forests' is open to challenge."
1972-1988
This period is 'protectionist' in nature, initially to save India's forests for her tigers, and then to check rampant, often arbitrary de-reservation of
forests. But it also was a period when people living inside and around forests were placed in a regulatory vice that literally squeezed their entrails.
The Wildlife (Protection) Act, 1972 introduced a new dimension to managing forests conserving wildlife. It also inaugurated a new dimension to
forest ownership. True, the act saved many ecologically critical areas and threatened wildlife species from being wiped out by dams, mines, cities,
and expanding agricultural land. But a new arena of conflict emerged between people and State fiat on forestland.
Consider the 1972 Act. Till it was amended in 1991, under the act, a sanctuary could be notified without the rights of people living in those lands
being determined. Therefore, in notified sanctuaries in the period 1972-1991, rights weren't determined.
Moreover, even as the act was
implemented, what got overlooked was an original statutory defect a sanctuary could be notified immediately, even if the rights of people weren't
settled. Thus, until this defect was mitigated--only in law--by another amendment in 2003, there was no settlement of rights of people in and
around forests.
The situation was similar around national parks. Millions living within burgeoning protected areas became outsiders in their own land, and conflicts
intensified. Till date, only five of the 32 sanctuaries and 12 national parks--with tribal populations of 22,497 and 1,77,895 respectively--have been
legally notified for the settlement of rights.
But they are to blame
In 1976, the prestigious National Commission on Agriculture--
nca, an agency attached to the Union ministry of
agriculture, then in charge of forests; the
moef was formed only in 1985--said that the tribals' "rights and privileges
have brought destruction to the forests and so it is necessary to reverse the process".
Asserted the
nca report
"production of industrial wood has to be the raison d' etre for the existence of forests". Its commercial bias was evident "The rural people have not
contributed much towards the maintenance or regeneration of the forests. Having over-exploited the resources they cannot in all fairness expect
that somebody else will take the trouble of providing them with forest produce free of charge".
The report recommended that all forestlands be classified into protection forests, production forests and social forests, with highest priority to
production forests. It tried to reset the objective of forest management to pushing yields to many times more than what was being
obtained.
In the same year, protectionism was legitimised by transferring--during the Emergency--'forests' from the state list to the concurrent list. Four years
later, an ordinance rushed through Parliament and became the Forest (Conservation) Act, 1980 (
fca) on October 25
that year.
Reminisces Samar Singh, at that time joint secretary in the Union ministry of agriculture "When Indira Gandhi was elected back to power
(1980), one of her major concerns was that a lot of forests were being decimated. She spoke to the minister for agriculture, and then we at the
ministry were directed to come up with a draft legislation to check this. Gandhi saw the problem at state level. She thought that the states were diverting a lot of forestland for non-forest purposes."
fca did not define 'forests'. It stipulated states could not de-reserve forests or put forest land to non-forest use without permission from the centre. It had stringent provisions disallowing settlement rights on forestland.The government set October 25, 1980 as the cut-off date for recognising the rights of tribals and other forest dwellers. In effect, millions of tribals became encroachers, liable for eviction. As the National Commission on Scheduled Castes and Scheduled Tribes has noted, in Madhya Pradesh itself, 1.48 lakh people, mainly tribals, occupying 1.81 lakh ha of land in forest areas became encroachers October 25 onwards.
fca put an end to
jhum, or shifting cultivation, on government forest, making it impossible for communities
practising jhum to gain title rights over this land. Even the revenue villages that qualified for regularisation under the
fca were not regularised. The state governments and the centre sat over the regularisation processes; it became a vote bank
issue.
1988-present
This period may be called the 'degenerate' phase of Indian forestry, riven as it is today with legislative and jurisdictional confusion between states
and the centre, unresolved overlaps in statutory law, an institutional tussle at the centre over the terrain itself and the pressure, on the
government, to feed the demands of fast-track growth.
On paper, a slew of legislations--an amendment to the Wildlife (Protection ) Act, 1972; the
Panchayat Extension to Scheduled Areas Act, 1997, and the The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006--address the historical injustice meted out to tribals and forest dwellers. On the ground, conflicts and protests have
intensified.
The 1988 National Forest Policy was a direct result of the storm of protest that emerged in the wake of
fca. It did not
define 'forests'. But it did acknowledge the dissonance between statutory law and the rights of tribals and forest-dwellers for the first time, policy
conceded that a symbiotic relationship existed between tribals and forests, and that people living in and around forests depended on it for their
livelihood and survival.
On the recommendation of the Commissioner for Scheduled Castes and Scheduled Tribes, the government converted the
policy statement into a concrete recognition of rights with a set of circulars on September 18, 1990. But hardly any action was taken on
them.
Then in 1996, the law was re-written. Adjudicating on the
T N Godavarman Thirumalpad vs Union of India case the Supreme Court passed a
benchmark judgement where, for the first time in India's forest history, the word 'forest' was defined. The judgement was dramatic, but completely
ignored the legislative framework related to forests, and the messy history of rights, claims and duties.
According to an April 2005 report by Shomona Khanna and Naveen T K, a result of the judgement was that "large areas recorded as forest in the
government records, whether under the revenue department, private or community ownership" came under the
fca.
Worse, a number of interim orders the apex court passed turned forests into a huge battleground.
In 1996, the apex court banned the felling of trees in forests. The ban was widely viewed as the only measure possible to prevent rapid felling of
trees due to the government-timber lobby nexus especially in India's Northeast, which was losing 31,700 ha of forest every year, according to the
moef. But it caused hardship to saw mill owners, those employed in timber-based activities and small private forest
owners.
On May 3, 2003, the
moef--narrowly interpreting a court order to settle rights inside forests--issued directions
to all chief secretaries, forest secretaries and principal chief conservators of forests of all states and union territories, asking them to summarily
evict all encroachers of forests "not eligible for regularisation".
This led to massive eviction drives in Assam and
Maharashtra.
On February 19, 2003 police shot two people dead inside
Kerala's Wayanad Wildlife Sanctuary while evicting tribal settlers
who laid a siege on a part of the sanctuary for 45 days. Just
a fortnight before, a tribal youth was killed in Chhattisgarh's
Kawardha district while opposing eviction. In West Bengal,
forest department keeps away the traditional fisherfolk
from islands citing threat to mangrove forest. If there was
a patch of forest, there was a conflict now. A case, which
began as an effort to curtail logging in the forests of the
Nilgiris, transformed into action against tribals.
As Khanna and Naveen TK put it, "Today legal certainty
haunts a variety of issues concerning the rights of tribals and
forest dwellers over forests, such as the rights of patta
holders in undemarcated protected forests in Madhya Pradesh
and Chhattisgarh, right to regularisation of land titles,
rights over non-timber forest produce, and nistar and other
customary rights".
Will the new definition lead to resolution?