The battle over forests

Writ Petition number 202 of 1995; Godavarman v the Union of India and others. This is the 'forest case' being heard in Supreme Court for the past seven years. With more than 800 interlocutory applications (ias) filed, the case will dictate the fate of India's forests and an estimated 10 million indigenous tribal people who live in and off the forest. It has already produced several dramatic interim orders, the latest being in May 2002, when some state governments -- Assam and Maharashtra, in particular -- launched eviction drives against encroachers on forestland (see box: Assam: It ended...).

The eviction drive was in response to a circular sent by the Union ministry of environment and forests (mef), dated May 3, 2002, to all states and Union territories (forest is on the concurrent list, and hence both the Centre and the state governments have a say). It set a totally unrealistic deadline of September 30, 2002, to remove all encroachments from forests, mentioning that the Supreme Court had expressed concern over the issue. The five-member Central Empowered Committee (cec) set up by the court recommended measures several times stronger than those in the mef circular. The panicky reaction of some state governments was as much due to the circular, if not more, as the fear of action by the Supreme Court.

The response was quixotic. Assam went on an eviction drive in the first week of May. The state's forest department used elephants to raze down hutments and homesteads on land recorded as forest. The second wave began in Maharashtra, where tribal families faced evictions from farms with standing crops. Scores of houses were destroyed, hundreds were rendered homeless. In a country where it is difficult to ascertain who is an encroacher on whose land and at what time, there was a public outcry. In several other states, the level of exploitation of people classified as forest encroachers increased manifold. There were reports that bribes to forest officials rose in Orissa. In Andhra Pradesh, Sakti, an organisation working for tribal people, approached the high court and obtained a stay on the state forest department's eviction notices to several 'encroachers'. It pleaded with the court to direct the state government to grant land rights and issue pattas for more than 31,000 hectares of land in reserve forests, which has been cultivated by tribals since before 1980. Across the country, civil society groups organised meetings and protests. The eviction drives came to a halt due to many reasons: rainy season and political compulsions (several states face elections in 2003).

How did a case, which began as an effort to curtail logging in the forests of the Nilgiris, lead to action against tribal people who have been wronged, historically, by the conflicting interests of government departments and arbitrary declaration of their ancestral lands as state-owned 'forests'? People, whose lands have been usurped but haven't been compensated? Clearly, the government had bungled yet again.
1995: The beginning T N Godavarman Thirumalpad, a resident of Nilgiri, had filed a public interest petition to prevent logging in forests that formerly belonged to his family. The court took up the matter as its own. A number of orders followed, not the least dramatic of which was a ban on the felling of trees in forests (see: 'Logjam', Down To Earth, March 15, 2002). 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 hectares of forest every year, according to the mef. But it caused hardship to saw mill owners, those employed in timber-based activities and small private forest owners.

So when did encroachment become an issue? The developments began in August 1999 following a problem facing the indigenous people and their forests in islands of the Bay of Bengal. Concerned at the sad state of the Onge tribe, indigenous to the Little Andamans, and the destruction by the administration of the rich forests they depend on, three non-governmental organisations approached the circuit bench of the Calcutta High Court at Port Blair in the Andaman and Nicobar Islands. The organisations were the Society for Andaman & Nicobar Ecology (sane) in Port Blair, the Bombay Natural History Society in Mumbai, and Kalpvriksh in Pune. They also filed an interlocutory application (number 502) in the Godavarman case in October 1999. They requested for:

• a ban on felling trees in the Little Andamans

• removal of all encroachments from the tribal reserve

• a ban on all mining or any other non-forest activities in the Little Andamans; and

• restrictions on construction of any road within the tribal reserve or within a radius of half a kilometre.

Two years later, in October 2001, the court passed an interim order prohibited cutting of any naturally grown trees. On November 23, 2001 Harish Salve, the amicus curiae ('friend of the court', a lawyer appointed by the court in public interest) filed intervention petition number 703 in the Andamans application number 502. Based on the recommendations of the cec report, he said "one of the major reasons for decimation of the forests is the growing extent of encroachments". Describing the Andamans as an eco-sensitive region, he called attention to encroachments in West Bengal (in the Sunderbans), Karnataka (Western Ghats), Madhya Pradesh and Chhattisgarh (Aravalli and Satpura region), Tamil Nadu (the Nilgiris) and Assam. The state governments, Salve submitted, were allowing further encroachments of forest in contravention of the Supreme Court's order of December 12, 1996, which restrained state governments from permitting non-forest uses of forests.

The states had done nothing to remove encroachment from forests after 1980, the year of the Forest Conservation Act and the cut-off mark for regularising encroachments (that is, grant the encroacher papers of ownership, the patta, of the encroached land). Salve asked the court to restrain the Union government from regularising any encroachments without the court's permission, and to direct the state governments to 'clear' post-1980 encroachments and prevent further grabbing of land. This, overlooked the fact that the government's process of determining pre-1980 encroachment was flawed and that government land records are commonly known to be incorrect (see box: Take a guess!).

Encroachment becomes an issue
But people who understand the nature of encroachment in the Andamans say it is foolish to compare the situation in the islands to that in the mainland. There is no doubt as to who is an encroacher in the islands. They are tribal people who were brought in the early part of the 20th century for logging operations from what is now Jharkhand (mainly Mundas and Santhals). But they were employees of the forest department, and should have vacated houses after their retirement, which some of them haven't done. Moreover, the rise in the population of the islands has been rapid in the past ten years or so, mainly due to immigration. The need to protect the forests that sustain communities like the Onge from a rising migrant population can hardly be disputed. But the cec, in its effort to draw attention to encroachment in other eco-fragile areas, put such encroachment in the same category as indigenous tribes being labelled encroachers on their own land in, say, Andhra Pradesh or Orissa.

In an order dated February 18, 2002, the court asked the state governments to respond about the questions he had raised about encroachment of forests. On April 1, the court order noted that the states had replied: "The said responses are being attended to and a final decision will be taken and directions issued by the Union of India within six weeks."

The court didn't call for evictions
Within one month and two days, mef issued directions in the May 3 circular to all chief secretaries, forest secretaries and principal chief conservators of forests of all states and Union territories. It asked them to summarily evict all encroachers of forests "not eligible for regularisation" by September 30, when the court was to hear the case. It was absolutely clear at that stage itself that it was impossible for the state governments to meet the deadline -- and officials acknowledge as much. So why did they send the circular? They needed to show the court that they had taken action on the April 1 order. The ministry officials say they did not expect that there would be such a commotion over the May 3 order.

What really got the tribal activists' goat was the fact that mef had, in 1990, sent a set of six circulars addressing the issue of encroachments and forest dwellers. They were:

• FP (1) Review of encroachments on forestland

• FP (2) Review of disputed claims over forestland, arising out of forest settlement

• FP (3) Disputes regarding pattas / leases / grants involving forest land

• FP (4) Elimination of intermediaries and payment of fair wages to the labourers on forestry works

• FP (5) Conversion of forest villages into revenue villages and settlement of other old habitations

• FP (6) Payment of compensation for loss of life and property due to predation/ depradation by wild animals

The problem with the May 3 circular, activists said, was that it mentioned only FP (1), ignoring the other circulars that dealt with the settlements of claims of forest dwellers. There were several reports of eviction notices to people who had been cultivating what forest department called forestland since before 1980, and were hence eligible for regularisation. In Melghat, there was a furore over the department carrying out evictions without a care for standing crops. That, too, in a region known for starvation and malnutrition among children. The Andhra Pradesh government, facing the prospect of the assembly elections next year, made it clear that it was in favour of regularising encroachments.

Civil society launches campaign
Questions were raised in Parliament about the process of clearing requests of regularising encroachments. mef felt the pressure from political leaders from tribal belts. The chairperson of the National Commission for the Scheduled Castes and Scheduled Tribes, Bizay Sonkar Shastri, wrote to the prime minister on September 6, soliciting his direct and immediate intervention: "You may consider directing the ministry of environment to take immediate steps to resolve the disputes in tribal areas in terms of 1990 package in consultation with the commission... If this is not done the prospect of evicting one crore tribals is frightening which is as cruel as it is unjust." The secretary to the ministry of tribal affairs also wrote to the ministry reminding it to consider the 1990 circulars. Civil society pressure was also mounting. Prominent among those campaigning against the order were B D Sharma, former Commissioner for Scheduled Castes and Scheduled Tribes (cscst), Pradeep Prabhu of Kashtakari Sanghatna in Maharashtra, Madhu Sarin, a policy analyst on natural resource management based in Chandigarh and ngos like Kalpavriksh. Email discussion groups suddenly became platforms for transacting information among civil society groups, which in turn started drawing the media's attention to the crisis.

All this resulted in mef issuing a clarification on October 30, 2002 to all who were sent the May 3 circular. This made it clear that there was no change in the ministry's stand on pre-1980 encroachments that are eligible for regularisation. Asking the states to show progress on removing encroachments ineligible for regularisation, it made the politically correct mention of 'in situ' economic rehabilitation of such encroachers through livelihood opportunities from joint forest management.

But the clincher was the last line: "But forest land encroached for agriculture, building etc will have to be vacated and put to forests use in the interest of tribal communities." The concern for tribals came four months and 23 days after the May 3 order that led to exploitation of numerous people who never deserved to be kicked out in the first place.

While the mef softened its stand and factored in concerns for tribal entitlements, the recommendations of the cec continued to worry people fighting for tribal people's rights.

A controversial committee
The greatest criticism of the cec has been its composition. It has three officials from mef and two ngo representatives with a pronounced inclination towards wildlife protection (see box). The amicus curiae Harish Salve proposed the names of the committee members. The way wildlife protection is practised in India leads to a complete polarisation and distrust between wildlifers and communities living in and around forests. The cec's recommendations on the encroachment issue, dated July 25, 2002, have attracted a lot of flak (see box: Exclusive club).

In particular, the committee's insistence that the date of encroachment (whether it is pre-1980, and hence eligible for regularisation?) should be determined by the preliminary offence report (por), the first record of the violation of the local forest laws, has drawn a lot of flak. It goes against the 1990 report by the cscst entitled 'Resolution of conflicts concerning forest lands - Adoption of a frame by the Government of India', which states: "If the claims of the tribal people are to be determined on the basis of the record of the forest department or at best, record of other government departments, his claim is as good as lost.

The only solution mef has to offer is joint forest management (jfm). But there are problems. In Andhra Pradesh, jfm does not recognise agriculture in Adivasi areas as a forest-related activity. It is aimed at developing and protecting forests as plantations of valuable forest species, claims the Adivasi Aikya Vedika (Tribals Unity Forum), a non-governmental organisation that tries to protect tribals' rights. It points to the example of the forest department granting the podu land of one community, which had refused to take part in to jfm, to the vss of a neighbouring village. This happened in Lotharavariveedi village of Bodlanka Panchayat in East Godavari district. The organisation complains that the village that did not play to the forest department's tune had lost everything -- its podu land, legal forest rights, and the income from jfm. In Andhra, the way mef is implementing is 'solution' is worse that the problem. The vedika says the government had decided in 1987 to regularise more than 31,000 hectares of reserve forests, which tribals have been cultivating since before 1980. But before the lands were regularised, jfm was initiated in 1995. The forest department said all forestland under 'encroachments' were to be managed under jfm. This, the organisation claims, is a clear violation of the 1990 circulars sent by mef.

While there is nothing wrong in using jfm to involve forest dwellers in managing real forests, it is criminal to use it to deprive tribals the right to what is their land. Now, several civil society groups from across the country are aware of the forest encroachment problem. The shock delivered by the eviction drive from May to September in several parts of the country has woken up several people, forcing them to take note of a festering problem. Activist groups are getting more and more proactive and demanding long-term solutions. Several of them are organising public meetings and workshops to propose solutions.

The solutions seem tricky
Ravi Rebapragada of Samatha, an Andhra-based ngo that works with tribals on forestry-related issues, says all pre-1980 encroachments should be regularised in line with the 1990 circulars, and that the por should not be the sole criterion for deciding the date of encroachments. As for the post-1980 encroachments, he suggests settling all the land under occupation of tribals and dalits based on the Land Capability Classification followed by the Food and Agriculture Organisation (fao). He says that the tribals in Andhra understand this very well as fao uses the term 'ploughable land'. He acknowledges that the government is not likely to accept this. Sarin mentions that fao does not include shifting cultivation lands in its assessments of forest cover in different countries, categorising them as forest fallows instead. It is the mismanagement by the forest department that has degraded India's forest, and now the forest bureaucracy is trying to cover up for its follies by usurping the agricultural land of tribals because they don't understand the complications of the paperwork, Sarin says. B D Sharma warns that the tribals are increasingly getting angry and violent about being denied their rights.

With several states going to polls in 2003, the matter has become very political. Kerala's chief minister A K Antony announced on November 10 that chief ministers of Congress party had resolved to seek an amendment to the Forest (Conservation) Act to facilitate distribution of forestland to landless tribals. The cec has come under a lot of pressure to review its stand. It's the same pressure that made mef clarify its policy on encroachment. And that's where the matter rests at present. The committee's recommendations are lying with the Supreme Court. It remains to be seen how the court will view them. And whether the committee will modify its recommendations.

Meanwhile, insecurity among people living in the forests grows. Take the predicament of Ghaneri Khar in Bilaspur district, Chattisgarh. The 75-odd families of this village have been evicted 12 times, arrested and lodged in the Central Jail at Raipur. "Each time we walk for eight days to reach our lands," says Dhasi Ram, mukhia (village head) of Ghaneri Khar. Nowhere to go, they return to their village. Only to be evicted again. Ram's story is also the story of more than 10 million people living in India's forests. Today their alienation is almost complete.

With inputs from Nava Thakuria, Sopan Joshi and Satyasundar Barik