The BJP’s proposed amendments to the Forest Act give the Central and State governments untrammelled powers and militate against the hard-won rights of tribal communities.
A few months before the parliamentary election, the Union government led by the Bharatiya Janata Party (BJP) announced its intention to amend the Indian Forest Act (IFA), ostensibly with a view to protecting and conserving forests and forest produce.
However, the comprehensive amendments, if passed, will result in an over-centralisation of state authority and power over forests and also come into conflict with the Forest Rights Act (FRA) of 2006, which confers titles and rights to tribal communities and other traditional forest dwellers (OTFDs).
In the proposed amendments, the Centre has arrogated to itself the right to declare any area a reserved forest. Besides, State governments and Forest Settlement Officers (FSOs) are vested with more powers than gram sabhas.
In the section on “bar on accrual of forest rights”, the amendments lay down that no civil court shall, after the publication of the notification under Section 4 and up to the date of publication of the notification under Section 20, entertain any suit to establish any right in or over any land or to the forest produce from any land included in the notification published under Section 4.
In the section on conferring rights of pasture or to forest produce, the proposed amendments go a step further than the colonial legislation, where the FSO had the power “not to admit any claim, in whole or in part, unless evidence was provided to him” and he was satisfied that such a claim was within the “carrying capacity of the forest”.
A section on “commutation of rights” gives powers to the FSO to decide on the representation of a presenting officer or Divisional Forest Officer whether the exercising of any right, individual or collective, was inconsistent with the conservation of the reserved forest. He would have the power to “acquire such rights” and commute such rights by making a payment or grant of land to maintain the social organisation of the forest-dwelling communities. A copy of the order would be given to the claimants.
This means that in case a tribal person’s or forest dweller’s presence is inconsistent with the conservation of the reserved forest, the claim to such forested land, however legitimate, could be set aside. Section 11 empowers the FSO to acquire tribal land and compensate the owner under the provisions of the Land Acquisition Act, 2013.
The amendments empower the FSO to use the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, in order to acquire and include land in the reserved forests category. A forest tribunal shall hear any appeals and adjudicate on the same.
The amendments do not envisage including the gram sabha in such appellate bodies, leaving much of the decision-making to the forest bureaucracy. The amendments make a pretence of recognising the rights of tribal people and forest dwellers under the Scheduled Tribe and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
The new Section 22 (A), on the recording of individual and community rights, empowers State governments, in consultation with the Central government, to “acquire such rights” if both governments are satisfied that the exercise of this right—individually and collectively—is inconsistent with the conservation of reserved forests.
While the rights of tribal people and OTFDs stand to be compromised, the State and Central governments will now have the right to allow the leasing out of reserved forest land. An addition to Section 23 allows State governments to lease out and divert forest land only after taking permission from the Central government Without it, “every lease granted without approval shall be null and void”.
The amendments provide for the creation of village forests from any forest land or wasteland, which then would be managed by joint forest management committees. These committees would exercise community forest rights but only in “consultation” with, and not needing approval from, gram sabhas and the Forest Department. Under the FRA, the gram sabha’s approval is mandatory.
Under the FRA, village forests cannot come up in areas that are under the claims of the community. Does this mean that the claims of individuals under the FRA would be abrogated under the definition of village forests? In Chapter 4 on “Protected Forests”, a new clause in the proposed amendments gives the Central government the right over a State government to “constitute a protected forest”, including giving directions to State governments to manage contiguous forests in a “landscape approach”. The landscape approach, it is argued, will benefit “local communities”.
The proposed amendments are, in some parts, a virtual repeat of the colonial Act of 1927, with the only change being that they arrogate more powers to the Central and State governments. For example, the titular clause 30 on the “power to issue notification reserving trees” has been tweaked thus: “power to issue notification declaring conservation area, reserving trees...”. Such areas can be declared closed for grazing or for gathering forest produce until the State government decides otherwise. This, in effect, means suspending individual or community rights over those trees. The penalties for violating the clause include eviction of people from those lands and suspension of the rights to pasture and to gather forest produce from forest lands that have been declared protected. The proposed amendments include new concepts such as “production forests” created for the specific purpose of increasing the production of certain items after considering the “forest productivity and the privileges of local communities”.
The amendments also propose to restrict the practice of shifting cultivation and bring part of such areas under “settled cultivation”. The State governments will have sweeping powers to “assume management of forests”, similar to provisions in the 1927 Act. Governments can take over the management of such forests in the public interest to ensure its conservation. Interestingly, the 1927 Act did not use the term “public interest” but basically stated that the government could take over the management of forests if there was “wilful neglect or disobedience” but after taking into consideration objections from the landowner.
In the proposed amendment, the landowners will have no say in the matter. The State government can in the “public interest” issue a notification and take over the management of forests and place them under the control of a Forest Officer.
Entire clauses of the 1927 Act have been retained, including one pertaining to the right of the government to “expropriate” forests in certain cases. Such expropriation would be done for “public purposes” (with public purpose undefined) under the Land Acquisition Act.
The chapter on procedures for dealing with forest offences includes new features that make the punitive measures in the 1927 Act appear lame. Under the proposed Section 52 (3), persons can be arrested without a warrant and the “Forest Officer, Police Officer or Revenue Officer shall be authorised to use reasonable force for seizure and making arrest, as the circumstances warrants so”.
Under Section 66, on “powers to prevent commission of offence”, the amendments gives Forest Officers sweeping powers to “prevent the commission of offence”, which include using “as little force including firearms and do as little injury to person and property...”. It gives the officers, who are deemed to have acted in “good faith”, the benefit of the doubt.
Section 66 (A) gives unfettered rights to Forest Officers to enter and search any place where there is reason to believe that any forest produce, tool, plant, equipment, rope, vehicle or machinery has been used in the commission of a forest offence. The Forest Officer “may” inform the gram sabha or the village panchayat, but it is not obligatory for the officer to do so.
A new section curiously titled “Attempts and Abetment” in the amendments provides for penal action against those found aiding and abetting the contravention of the Act.
According to the drafters of the amendments, this section is intended to “dissuade political executives to incite masses against the provisions of the Act”. Such a provision was necessary also because “many State governments” had withdrawn cases registered under the IFA of 1927 to draw “political mileage”. Therefore, the new insertion says “such action has to be curbed with a heavy hand because the results are disastrous. Porosity is the root cause of destruction of forest areas.”
In a radical departure, the amendments provide for the creation of “private forests”, or privately owned forests. They also envisage the constitution of a National Forestry Board headed by the Prime Minister with the Chief of the Army Staff as one of the members but completely excluding gram sabhas.
Communist Party of India (Marxist) leader Brinda Karat was the first political leader to write a public letter to Union Minister of Environment, Forest and Climate Change Prakash Javadekar expressing concern on the proposed amendments. On June 28, replying to a question by Sushil Kumar Singh in the Lok Sabha highlighting concerns pertaining to the amendments, Javadekar said that there was a need to amend the IFA to bring it on a par with State Forest Acts and the developments over 90 years.
He said the first draft had been prepared by a core drafting committee comprising technical and legal experts and circulated to State and Union Territory governments. According to him, the proposal “was to recognise the rights and role of villagers in managing village forests through the joint forest management committees”. The benefits were in addition to forest rights and occupation of forest land vested in the FRA, he added. He admitted that forest officials had been empowered to use “little force including firearms with appropriate precautions under Section 66”.
In her letter to Javadekar after his reply, Brinda Karat said the Minister had “played down the extremely repressive measures proposed in the Act”. She said the 91 clauses, including new sections, went beyond what the British dared to do, by militarising forest conservation. The amendments, according to her, criminalised every aspect of tribal life by giving “untrammelled powers to the forest bureaucracy to arrest without warrant and to use arms to implement the law”.
The draft was a “blueprint for centralisation, commercialisation and criminalisation”, she said, adding that the repeated equating of tribal people with other communities in the draft denied the special status of tribal people in relation to forests.
There is not a single clause that recognised the critical role of the gram sabha in forest conservation or that mandated its consent in any decision pertaining to forests. Brinda Karat also raised jurisdiction issues, stating that it was the domain of the Ministry of Tribal Affairs, if at all, to deliberate on the rights of tribal people.
The arrogation of rights to the FSO regarding tribal rights would make tribal people vulnerable to the forest bureaucracy, she wrote. It was also a violation of the FRA to presume that all forest produce belonged to the government.
The Central government had been given overriding powers in many clauses, including decisions pertaining to the “protection and management” of forests and to make rules for shifting cultivation and gathering of forest produce, and declare any forest as conservation forest or community reserve, which was an encroachment on the rights of the States, she wrote.
She also pointed out that there was a long list of prohibited acts under Section 26, ranging from cultivation of forest land to fishing and the rights to pasture and forest produce. In each and every case, the person (tribal) had to show “authorisation” from the Forest Officer, she wrote.
Other objectionable features included denying an “evicted” person (tribal) the right to appeal in a higher court; penalising people and entire communities who failed to “report” offences; setting up of infrastructure like “lock up rooms” to implement the Act, which she said was like building “jails” inside forests.
Brinda Karat also said that the amendments were “unacceptable” and needed to be brought in conformity with the FRA and other related laws in order to redress the historical injustices faced by tribal communities that were being perpetuated in modern forms too in the name of development or conservation.
All these issues, including a February 13 Supreme Court order directing the eviction of unauthorised encroachments in forest lands, were discussed at a two-day consultation by land and forest right groups organised under the broad aegis of the Bhoomi Adhikaar Andolan.
The Supreme Court order was a follow-up on a 2016 order by the apex court based on a petition by a wildlife body alleging encroachments. The Centre did little in the intervening period, which the court pointed out and which land rights groups concurred with. The evictions were stayed following protests from genuine claimants whose claims had been rejected. The hearing is due to take place at the end of July.
At the consultation, Gajanan, a farmer from Madhya Pradesh, said that even though the FRA had been notified, the local Collector and Forest Department officials refused to recognise the rights of tribal people and other forest dwellers. “Neither do they know about the rights of the gram sabha or the FRA itself. The SDM [subdivisional magistrate] says he will find out about the rights of the gram sabha,” he said.
Ulka Mahajan, who has been fighting for the land and forest rights of tribal people in Maharastra, said that the amendments were targeted at removing the “community rights” conferred under the FRA. They were also required to make land acquisition easier for the industrial corridors and new special economic zones being planned by the Central government, she added.
Bal Krishna Kharwar, a tribal person from Kaimur district in Bihar, told Frontline that the Forest Department was harassing villagers in his area, labelling them as “Maoists”. On January 14, he said, the Department bulldozed some 70 houses.
He added that some three lakh families in 167 villages in the district were dependent on forest produce such as mahua tendu and other herbs and shrubs. “Some 80 per cent of the population is tribal. The landed castes want us out,” he said.
In Sonabhadra in Uttar Pradesh, people protested when their claims and titles were rejected. Many were sent to jail. In Bailadila in Chhattisgarh, an area that comes under the Panchayat Extension to Scheduled Areas Act, NMDC Ltd was planning to give iron ore mining (developing) rights to a big industrialist after getting consent from what the local people found out was a fake gram sabha in 2014.
“We got the documents through the Right to Information and matched the signatories of the gram sabha that had given assent for the mining and found the name of only one panchayat. The names of former or existing sarpanchs of the panchayats concerned were not there,” Mangal Kunjam, a local journalist from the region, told Frontline.
In the first week of June, the affected villages held a five-day protest in Kirandul against mining in their areas. The newly elected Congress government has decided to investigate the allegations of fake consent and put on hold activities such as cutting of trees for the project.
In a letter to Chief Ministers, former CPI(M) Lok Sabha members Hannan Mollah and Jitendra Choudhary, the activist Medha Patkar and several others wrote that the interpretation of the FRA in the petition before the Supreme Court (the writ argued that rejection of claims had to lead to evictions) was erroneous.
They wrote that the implementation of the Act was uneven and in many parts of the country, eligible forest dwellers had either not filed claims or not pursued the forest rights to which they were entitled. The performance of State governments with regard to recognising community forest resource rights, including those of single women, was “abysmal and flawed”, they wrote. They urged the Chief Ministers to persuade the Union Ministry of Tribal Affairs to seek the recall of all Supreme Court orders pertaining to the eviction of tribal people.
The amendments to the IFA, if passed, will only be a further extension of the harassment being faced by the most marginalised sections, who had until now received some protection of their rights under the FRA of 2006.