Extensive amendment to forest law will dehumanise forests

The proposed amendment comes at a time when forest dwellers’ rights are being threatened even when there is FRA

By Ishan Kukreti
Published: Thursday 18 April 2019
Photo: Getty Images

As 300 million forest dwellers across India heaved a sigh of relief after the Supreme Court stayed its own order to evict encroachers on February 28 this year, the Union government was sharpening its axe with a new amendment to the Indian Forest Act (IFA), 1927. On March 7, a document marked “secret” landed on the desks of forest chiefs in all states. It was sent by Noyal Thomas, India’s Inspector General of Forests (forest policy), and it contained a proposal to replace IFA, the colonial Act. For the first time, a calculated move was being made to dismantle the community-driven forest governance and strengthen the hands of the forest bureaucracy.

The preamble of the present IFA is centered purely on economic interests—to consolidate “the transit of forest-produce and the duty leviable on timber and other forest-produce”. The proposed preamble focusses on conservation and “concerns related to climate change and international commitments”. The missing narrative is community management of forests, which has slowly taken root across India over the past two decades.

It is no secret that the proposed amendment is even more colonial and frightening. IFA, 1927 has been criticised for decades as it was introduced by the British who not only wanted to establish legal control over India’s forests—23 per cent of India’s landmass — but also to earn revenue from timber. But the proposed new amendment has far-reaching implications. Not only does it have provisions to override other forest laws, especially the hard-fought Forest Rights Act (FRA), 2006, and displace forest communities, but it also allows the forest department to use firearms to prevent offences. Yet, no forest officer can be prosecuted unless the state government approves, and a case, once filed, cannot be withdrawn.

The authority of the gram sabha (village council), which is the centerpiece of FRA, has been diluted. While under FRA, the gram sabhas have the right to collect title claims, the amendment proposes that the authority will rest with the forest department. The forest department can also deem any forestland as degraded or a wasteland and give it to a private party after evicting the forest dwellers.

In the making

In 2015, the National Democratic Alliance (NDA) government set up the TSR Subramanian Committee to suggest changes in India’s forest governance. One of its key recommendations was to amend IFA, 1927. Earlier, the M B Shah Commission too suggested amendments in 2010.

From the onset, the process to amend IFA has been shrouded in secrecy. On September 23, 2016, the Ministry of Environment, Forest and Climate Change (MoEFCC) constituted a committee dominated by forest bureaucrats. It comprised the principal chief conservators of forests of four states—Madhya Pradesh, Chhattisgarh, Maharashtra and Manipur—the then Inspector General of Forest Rekha Pai, the then Deputy Inspector General of Forest (forest policy) Noyal Thomas, and Assistant Director General (Wildlife) M S Negi. The three non-government members were Ravi Shankar, Secretary General, World Wide Fund for Nature (WWF), Shankar Shrivastava, MoEFCC counsel in the Bhopal branch of the National Green Tribunal and Sanjay Upadhyay, a Supreme Court lawyer.

Surprisingly, the Ministry of Tribal Affairs (MoTA), a major stakeholder in forest governance and the nodal ministry for FRA, was not included. Moreover, there was no one representing forest dwelling communities. The committee didn’t even bother to take up a consultation process with people. It met five times, and on December 5, 2017, a core drafting body was constituted which once again comprised the same people. Worse, MoEFCC didn’t share the draft amendment with the Parliamentary Standing Committee on Science & Technology, Environment & Forests.

“They deliberately withheld information about the amendment from the Parliamentary Standing Committee and MoTA to stifle any opposing comments,” says Leo Saldhana of Bengaluru-based non-profit Environment Support Group. Siddhanta Das, Director-General of Forests and Special Secretary, MoEFCC, defends the government: “This is just the base document. After state governments give their feedback, we will begin negotiations with them. In any case, this proposed amendment will not be applicable to 14 states that have their own forest laws.”

Forest rights experts believe the proposed amendment is another instance of how the Union government has been pushing through forest legislations with-out discussing with all stakeholders. For example, gram sabhas were left out of the decision-making process in the Compensatory Afforestation Fund Act, enacted in 2016 (see “Forest laws can’t be made by foresters alone”).

“The environment ministry is trying to keep forest governance in the 19th century while the world has moved on to the 21st century,” says Shomona Khanna, the former legal advisor to MoTA. This is not just colonial, but an amendment that is totalitarian in nature because it empowers the Centre to declare forests on state lands despite land being a state subject, she says.

“The Union government should only give the guideline and the broad perspective and it is for the state governments to decide,” says Das. Today, 14 states follow their own versions of IFA, 1927 and they don’t have to bother about the amendment. R S Yadav, former additional principal chief conservator of forests, Maharashtra, who attended a few meetings of the committee formed to draft the amendment, says that during the meetings, the states had raised this issue, as they felt it would create disharmony between state forest departments and MoEFCC. “But our points were not included in the draft,” he says. As oppostition to the amendment brews, the core of the amendment is nothing but an overt power balance tilt in favour of the forest department, which in recent years has lost control due to FRA.

Bureaucracy is stronger

The proposed amendment clearly seeks to further consolidate the forest departments’ power over forests. It gives the forest department the authority to act arbitrarily and subvert the rights of forest-dependent communities in the name of forest protection. It empowers the forest officials to use firearms and cause injury to prevent any “violation”. There are provisions to set up infrastructure to create lock up rooms and transportation facility for prisoners and to set up armories. However, the Union government has its own logic. “Forest officials have to work in dangerous and isolated areas. There are no people there; only foresters and smugglers,” says Das. Importantly, the proposed amendment prescribes punishment for offences in detail—both bailable and non-bailable. The penalty for various offences has been increased from Rs 500 to Rs 5,000- Rs 500,000 and imprisonment has been increased from one month to seven years.

The amendment gives the forest officials the power to seize property and sell it, even if the guilt of the accused has not been proved. “It recognises the confession given to the forest officer as evidence in a court of law. This is done only in extreme cases like terror-related cases. The amendment give the forest department the power to be the judge, jury and executioner,” says Khanna.

Cesspool of corruption

The forest department will also have the right to impose a cess on forest produce, which is over and above the tax imposed by state governments. This is in contravention to FRA, which says that minor forest produce used by forest dwellers cannot be taxed.

“Forests have been viewed as revenue entities and not as ecological foundation for life and livelihoods. This will further lead to deforestation,” says Savyasaachi, a professor at Jamia Millia Islamia, New Delhi, who has been researching on forest governance.

For the first time ever, the Union Government has defined “forests”. It says that forest “includes any Government or private or institutional land recorded or notified as forest/forestland in any Government record and the lands managed by Government/community as forest and mangroves, and also any land which the Central or State Government may by notification declare to be forest for the purpose of this Act”.

The definition is an administrative one and doesn’t have anything to say about the forest ecosystem. It does not take into account parameters like the density of canopy or the length of trees. On the other hand, many states have defined forests in their own way, but these definitions have not been incorporated in the amendment. 

It also defines “community” as “a group of persons specified on the basis of Government records living in a specific locality and in joint possession and enjoyment of common property resources, without regard to race, religion, caste, language and culture”. Experts say that this can be used to break the unity of the forest dwelling communities. “This definition can also be interpreted to include someone from outside the area to be a part of the community,” says Radhika Chitkara of Community Forest Rights-Learning and Advocacy (CFR-LA), a national group of FRA activists and experts.

There are other definitions too. “Person” is “a forest dwelling Community or any organization registered under the prevalent laws in the State”; “local body” is “any organization or committee constituted under Section 80 (b) of this Act or under any relevant Act of the Central or the State Government”. “The provisions under Production Forest chapter already make it possible for the government to assign them to any one they want. This reads with the definition of person and local bodies seems to suggest that there is an attempt to bring people other than the forest dwelling communities inside forests,” Khanna says.

The door is now open

Another contentious point which subverts FRA is the idea of production forests first espoused by the government through a draft on private participation in afforestation in 2015 to allow private players to set up plantations on forestlands. This was mentioned in the draft National Forest Policy, 2018. The proposed amendment talks about the creation of national and state forest funds aided by private companies. But experts say the creation of such forests will fuel timber harvest for commercial markets, somewhat akin to what existed in the colonial times. This is in sharp contrast to the National Forest Policy, 1988, where the focus is not revenue generation, but ecological and livelihood needs.

“The practice of production forestry through private companies was done by the British. This led to considerable ecological destruction. In fact, in opposition to this kind of exploitative forestry the community forest practices started in Odisha,” says Tushar Dash of CFR-LA.

Moreover, pertinent questions of violation of people’s rights arise where there are production forests. Already in Andhra Pradesh and Telengana, the highest rate of rejection of settlement rights under FRA are in red sanders plantation areas. The forest departments in these two states have rejected people’s claims on the pretext that the tree is of high economic value. Raza Kazmi, a wildlife conservationist based in Jharkhand, however, sees a positive side. He says that bringing production forests under a law will make the category less ambiguous, and therefore, can be challenged.

Belittling FRA

In the past decade, tribal communities across the country have filed 4.21 million claims to acquire forest land using FRA. However, by delegating quasi-judicial powers to the forest bureaucracy, the proposed amendment is making a mockery of FRA. For instance, the proposed amendment talks about appointing a forest settlement officer to deal with claims of people’s rights on forestlands. Experts say this is a highly regressive move as there is already a democratic authority under FRA to recognise claims, which includes the forest department, the tribal development department as well as members of the Panchayati Raj department.

“Settlement by the forest officer was a colonial process. Now, we have the process under FRA and PESA, which is a decentralised one. In fact, one of the reasons for the demand of FRA was that the settlements done by the forest department were not proper. This proposed amendment gives back the power to the forest bureaucracy,” says Dash.

The proposed amendment comes at a time when forest dwellers’ rights are being threatened even when there is FRA. Till now, only 1.74 million of the total 4.21 million land right claims have been approved, according to the report on the implementation of FRA compiled by MoTA in November 2018. Of this, only around 79,000 claims have been recognised under community forest rights.

What is more worrying is that the amendment is trying to usher in a parallel system of forest governance. Village forests and Joint Forest Management Committees (JFMCs)—which were constituted by the forest department control forest management and which became irrelevant after FRA—will now be resurrected . This will further undermine and diminish the role of gram sabhas (see “Village forests have been pitted against community rights”).

Prakash Kashwan, associate professor, Department of Political Science, University of Connecticut, USA, says, “JFMCs have always been a sham in India. In community-protected forests in Gujarat and Maharashtra, the forest departments have leased land to paper mills without consulting, let alone compensating communities who had invested their labour to protect them,” he adds.

Despite the preoccupation of political parties with the general elections, the proposed amendment is turning out to be a bitter ground for slugfests. Chhattisgarh, which has 44.21 per cent of its geographical area under forests, has already voiced its disapproval. Chief Minister Bhupesh Baghel has written to environment minister Harsh Vardhan making his displeasure evident over the issue of IFA being applied in Fifth Schedule Areas. According to Baghel, only the governor can decide whether a law will apply in these areas or not.

He has also shown concern over provisions which say people’s rights over forest lands can be snatched, if the government thinks it is harmful to the ecology. In such cases, the right holders would be given either another piece of land or due compensation. In his letter, Bhagel points out that the move is against tribal communities, which collect minor forest produce from forests for livelihood, and hence, cannot be evicted.

As things stand, the amendment will be discussed by state governments, which will send their comments and approval. It will be made public for comments. This may offer a unique opportunity to make real amends and carve out a pathway that will strengthen the roots of community-driven forest management. Otherwise, state governments should enact their own forest law and ignore the Central one, as 14 states are already doing.

(This article was first published in Down To Earth's print edition dated April 16-30, 2019)

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