The Indian Forest Act’s proposed amendment is dangerous and fanciful

The amendment of the Indian Forest Act (IFA), 1927, has been long due. However, it was beyond imagination that an amendment of the colonial British Raj’s Act, 70 years too late, would be worse than what the Raj had itself envisioned. The IFA amendment is like a fanciful flight of a colonial forester, drafted by the forest department, with the forest department and for the forest department (and the industry as its ally).

In line with other policies in the recent past such as the National Wildlife Action Plan 2017, and the draft Indian Forest Policy 2018, this amendment also shows the complete unwillingness of the forest bureaucracy in accepting a different role, and a nationally and internationally changed context. Most importantly, these policies and amendments to laws completely ignore the more democratic laws of post-colonial India such as the Forest Rights Act (FRA) 2006 and Panchayat Extension to Scheduled Areas Act (PESA) 1996, passed by Parliament of independent India in all its wisdom. 

At the root of the need for enactment of FRA and PESA was the environmental and social injustice caused by colonial laws, primarily the Indian Forest Act 1927, by not recognising the rights and responsibilities of the adivasis and the other traditional forest dwellers.

The aim of these Acts is to recognise and respect the historically denied fundamental constitutional rights and responsibilities to use, manage, govern and conserve forests. In respecting these rights and recognising their contribution towards the conservation of forests, these laws intended to change the prevalent narrative of forest dwellers as necessarily “forest offenders and encroachers”, to them being forest rights and responsibility holders, governing, managing and conserving their forests. Consequently, most existing clauses of the IFA and categories of forests under it were rendered irrelevant and/or stood in direct conflict with the FRA and PESA.

Considering that the FRA and PESA represented the country’s post-colonial vision of democratic forest and conservation governance, it was very much expected that in its amended version, the IFA would undergo a major overhaul, align itself with PESA and FRA and go beyond where they left off. It was expected that the IFA amendment would do so by:

1. Reviewing the existing categories of Reserved Forests, Protected Forests, and Unclassed Forests, all of which were primarily established to serve the colonial interest of appropriating resources for revenue generation. Aligning itself with FRA, it would include the category of Community Forest Resource (CFR) Rights and forests over which Habitat Rights of Particularly Vulnerable Tribal Groups and the rights of pastoralist communities have been established.

An under-estimation published in 2016 suggests that “In terms of area, potentially, up to 85.6 million acres or 34.6 million hectares of forests could be recognised as CFRs in the country. This would potentially benefit, an estimated 200 million Scheduled Tribes (STs) and other traditional forest dwellers (OTFDs) in over 1,70,000 villages, including by gaining collective rights over forests under the CFR Rights provisions of the FRA.”

Inclusion of CFRs as a category would make the category of Village Forests — primarily enacted to provide limited space for the local communities in the management of forests (that the colonial government was forced to create faced with resistance and revolts of forest-dependent communities) redundant.

2. India has a rich history and current examples of Community Conserved Areas (CCAs), where habitats and species are conserved by the local communities through local knowledge and governance systems. These conservation efforts have been ignored in our forest and conservation policies. It was expected that the amended IFA would create a category to recognise CCAs (some of which are/will be CFRs).

3. Considering that CFRs already provide for CFR Management Committees (CFRMCs), the Joint Forest Management (JFM)-forest department scheme to provide limited participation of the local communities in forest management, would become irrelevant. It has been widely accepted that JFM institutions have largely failed in the past and continue to be highly corrupt and internally divisive (inciting, enhancing, and feeding on internal village conflicts to continue corrupt practices, retain centralised political powers, and exclude women). It was expected that the IFA amendment would provide for effective financial and other support to the CFRMCs and similar other local institutions by the gram sabhas, including by creating and diverting forestry-related funds to them.

4. By aligning with Section 4 (1) e of FRA, which provides for the CFRMCs to draft management and conservation plans and strategies. By ensuring that these plans and strategies are recognised and adopted in all forest working and management plans. By ensuring that forestry sector funds are provided to the gram sabhas for implementation of their plans and strategies in the same way as the forest department would be availing funds for their own management and working plans. By ensuring that the gram sabha plans and strategies are integrated in all regional and landscape-level development and conservation planning and no contradictory plans are cleared.

5. By removing the existing IFA provisions of ‘settlement’ of rights to incorporate the process of recognition of rights as has been detailed in the FRA. Additionally, it could provide a mechanism for detailed recording of rights recognised under the FRA in the forest records, including by revising the forest maps to include CFRs, Habitat Rights Areas, and areas under the jurisdiction of different gram sabhas under PESA in scheduled areas. It was expected that it would provide for mechanisms and support for on-ground demarcation of boundaries where local villages thus requested.

6. By reviewing and withdrawing hundreds of forest offences which have now been recognised as rights under the FRA. By redefining ‘offences’ to include spaces for gram sabhas’ rules and regulations for forests under their jurisdiction. By providing for a mechanism for all outsiders to adhere to gram sabha rules and regulations including project proponents and government functionaries.

By providing support mechanism to gram sabhas to deal with powerful offenders, including timber and poaching mafia, where the gram sabhas may not be in a position to do so and asked for help. By ensuring that surrounding gram sabhas are consulted in offences such as poaching and smuggling even for forests which are not under gram sabha jurisdiction.

7. It was expected that the IFA would ensure that gram sabha consent for diversion of forests was strengthened to ensure forests are not diverted for industrial purposes. Considering that in states like Maharashtra, Madhya Pradesh, Odisha, Uttarakhand and West Bengal, many CFR gram sabhas and those who have not yet claimed CFRs are opposing degradation of biodiversity in their forests because of commercial felling and plantations by the Forest Development Corporations (FDCs), it was expected that the IFA would make gram sabha consent mandatory even for transfer of forest land for commercial forestry in keeping with FRA and PESA.

8. Post the recognition of rights for non-timber forest produce (NTFP) collection and trade under the FRA and PESA, hundreds of gram sabhas and in some cases, their federations are already engaged in harvest and trade of NTFP and revolutionising local economies, and well-being.

It was expected that the proposed amendment would have ensured removal of all government levies and taxes (including the Goods and Services Tax, which is already taking its toll on the NTFP collectors) to provide maximum benefit to the NTFP collectors, their gram sabhas and gram sabha federations; ensured a mechanism for Minimum Support Price (MSP) to prevent exploitation by contractors and markets; and recognised the gram sabhas role in transit permits (TP) to be issued for transport of NTFP.

9. It was expected that the IFA would have restructured and redefined the forest department to be an extension and support agency to the gram sabhas managing and conserving their forests, with no power to interfere in the local decision-making processes. That they would accept the role of knowledge and information sharing and helping against powerful forces.

On the contrary, the IFA Amendment has attempted to do just the opposite in all of the above mentioned points. These amendments seem to have five dangerous goals:

1. Delegitimise, limit or exterminate the rights where they have been recognised under the FRA and PESA.

2. Ensure no further rights are recognised where they have not been yet

3. Strengthen the forest department (including financially) to become an unaccountable (by providing various indemnities), autocratic, quasi-judiciary and para-military force, armed and with power to, on mere suspicion, cause violence against and/or arrest anyone for a non-bailable offence.

4. Unilateral power to the Central and state governments to take over whatever forests have not thus far been taken over by the forest department without any process, acquire rights and levy charges for any use by the local people.

5. Hand over large parts of forests for commercial production as production forests and do away with the ‘gram sabha’ consent clause by declaring Reserved Forests and Protected Forests, which can then be easily diverted for industrial purposes.

Who does it impact the most?

Wildlife and biodiversity

If the IFA amendment claims to be aimed at preventing destruction of forests, then it is going about it in the worst possible way.

In response to a Lok Sabha question on February 8, 2019, the government has answered that between 2015- 2019 alone, 54,648.54 hectares (ha) of forest land had been diverted under the Forest Conservation Act (FCA) for non-forestry purposes. In response to a similar question on September 8, 2016, the government had responded that on an average, 25,000 ha of land had been diverted annually for non-forest use since 1980. If calculated, it would amount to about 10, 00,000 ha of forests over forty years.

A Parliamentary Committee report on the status of forests in India tabled in both Houses in February 2019, states that the Ministry of Environment, Forests and Climate Change (MoEF&CC) has granted approval to 3226 projects. The report mentions the total forest area diverted for non-forestry purposes between 2013-18 to be variably between 70,920.61 ha and 2, 39,572.16 ha under FCA, 1980.

Areas of prime importance for wildlife and biodiversity are being cleared for forest diversion. These include nearly 842 ha of forest land of the Parsa coal block in the Hasdeo Arand forests which was given Stage I forest clearance by the Forest Advisory Committee; more than 465 ha of forest land for a cement plant in the Zari Jamni area of Yavatmal District in Maharashtra which is a tiger habitat and diversion of about 88 ha of forest land requiring the cutting down of more than 1,700 trees in the Pench-Melghat corridor for a grenade manufacturing unit.

This is apart from the total area under the Forest Development Corporations, converting local and biologically diverse forests to monoculture plantations, which amounts to over 1.28 million ha in 11 states. This data clearly shows that industry and infrastructure are a bigger threat to forests than the recognition of rights.

If anything, as more and more forest-dwelling gram sabhas are claiming forest rights under the FRA, more examples of sustainable forest management and conservation are emerging.  It is these gram sabhas that are resisting extractive industries’ destruction of forests and FDCs monoculture plantation.

By creating ‘production forests’ (Chapter IV A, Sec 34 (C)) and doing away with gram sabha consent by declaring more and more area for Reserved and Protected Forests (Chapter IV Sec 29) and exterminating rights, the IFA is clearing the way for many more forest diversion projects. It is apparent that forests need to be rescued from the forest department as much as from encroachments and the industry for the long-term survival of wildlife.

Other traditional forest dwellers, pastoralists and particularly vulnerable tribal groups

Section 12 of the IFA leaves the rights of grazing at the mercy of the forest officials. The Divisional Forest Officer (DFO) makes the final call on what the ‘carrying capacity’ of the forest is going to be.

This will have adverse effects on the pastoral communities in India who are already facing several challenges in accessing and even having their rights recognised for pasture and grazing.

The Van Gujjars in Uttarakhand have been facing continuous harassment from the state, deeming them as “encroachers” even though they have been constantly challenging their rightful claim to pasture under the FRA. Similarly, the Raika have challenged forest officials over their rights to graze around Kumbhalgarh Wildlife Sanctuary in Rajasthan through provisions under FRA and they are yet to receive any respite from their struggle.

The state control over forests refuses to recognise nomadic communities as well as pastoralists who have been dependent on the forests for centuries. Exclusionary conservation policies and resource politics in the present have further marginalised the community. The failure of the state, the judiciary and the rule of law, especially the present IFA amendments, would only makes these communities privy to the continued violence meted out by the state.

Section 26(3) gives the DFO or a ranger, or sub-inspector or a tehsildar, the power to suspend rights to pasture and Section 26(4) to evict anyone who has been responsible for the same.

In the last three years, in Uttrakhand, there are evidences of Van Gujjar houses being razed to ground by forest officials and women mercilessly beaten up when they resisted and said that the land has been claimed under the FRA. Due to lack of implementation in the state and absolutely no recognition of any rights so far, the community is still seen as ‘encroachers’ and the amendment would further legitimise the violence that the forest department has been enforcing on the forest-dependent minorities.

Section 70 and 71 levies offences of grazing under the Cattle-trespass Act, 1871, which allows the forest officer to seize any cattle that may have been grazing in these regions and also impose fines that ‘it may deem fit’, thereby giving them furthermore incentive to harass and exploit the pastoral communities, who despite making claims under FRA, are facing it on an everyday basis.

In Section 34(D), the draft lays down the procedure for the central government to restrict and prohibit the practice of shifting cultivation in all forest land.

Within reserved forests, shifting cultivation is to be deemed as a “privilege” to control, restrict and abolish by the state government (Sec 10 (5)). This will have an adverse bearing on several Particularly Vulnerable Tribal communities across India who practice shifting cultivation and are not linked to the organised sector.

Jhum fields are not only an important food basket for these communities, but are also an integral part of the cultural and religious worldviews of these communities. In some areas like Odisha, these plots have already been taken up forcibly for commercial forestry purposes. This colonial and myopic view of shifting cultivation, which led to the marginalisation of several communities like the Baiga of Madhya Pradesh and Chhattisgarh, will further push these communities into oblivion.

Gram sabhas and persons dependent on and collecting Non-Timber Forest Produce

The sections mentioned for pastoralists are the same which apply to the use and collection of forest produce. Forest dwellers are completely at the mercy of the forest settlement officer as per Section 11, 12 and 16 of the amendments of the IFA. Section 12 hands over the power of the DFO or SO to decide the rights of access based on the ‘carrying capacity’ of the forest.

Villages in Maharashtra and Odisha have been sustainably using and managing the collection of NTFPs and there are successful cases where village gram sabhas (with active participation and leadership of women) in Maharashtra have managed to collect and trade NTFP, conserve and protect their forests, and resist mining proposals. The recognition of CFRs in these regions ensured autonomy over the NTFPs, leading to sustained economic growth which strengthens the democratic and autonomous roles of gram sabhas in natural resource politics.

In communities like these who are opposing mining, IFA just provides one more tool for arm twisting them into submission by threatening to take their rights away because a forest officer feels that extraction is not sustainable.

Additionally, Section 41-44 retains the control of transit of NTFPs in the hands of the state or the central government and makes them non-liable for any damages in the transit process. The central and state government are responsible for creating rules for transit which, by experiences narrated by gram sabhas, are one of the biggest challenges that they face today with the management and collection of NTFPs, specifically in the case of bamboo and tendu/kendu leaves.

In the states of Maharashtra and Odisha, gram sabhas that have their CFRs recognized, now have the right to issue transit permit after a lot of struggle and conflict with the forest department. Most gram sabhas still face stiff resistance from the forest department and this creates a huge impediment in the economic security of the village which will only be further exacerbated by provisions under these amendments.

Adivasi communities whose rights are being curbed under the axiom of Maoism

The proposed amendments give legitimacy to the state forest department to mete out violence that has been faced by forest-dwelling communities in states which have witnessed increased militarisation in the name of Maoism.

Section 66 allows the forest, police or revenue officer the right to bear arms and injure a person whom they charge with forest offences. In the past one decade, we have seen increased militarisation in regions with rich mineral, forest and natural resources of central India, Odisha, Andhra Pradesh, Tamil Nadu and Kerala and more often than not, mobilisations by local communities are curbed by charging local leaders as “Maoist sympathisers”, incidences of violence against women, wrongful detention and arrests as well as wrongful forest offences charges, especially in regions where there is Maoist presence.

The amendments will only strengthen the systematic violence on the communities, making it easier for forest diversions and exclusive conservation, further marginalising the forest-dwellers. 

Conclusion

A clause wise analysis of this 123-page document is difficult, given its length, unclear language and confusing messages. A clause-wise critique at this stage in our opinion is also unnecessary as the current draft needs to be completely withdrawn in its current form. If the aim is to create any meaningful dialogue around the IFA then a completely new draft will need to be proposed and widely debated, including at the gram sabha levels where forest dwelling communities reside.

Using the current draft for any discussion and consultation would be dangerous as in addition to a few clauses mentioned in this text, there are many ‘lost in the text and easy to miss’ clauses and sub clauses, which could have huge future implications for the forests, biodiversity and forest dwellers of India.

(Neema Pathak Broom, Shruti Ajit and Meenal Tatpati are members of Kalpavriksh, Pune)