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Saving conservation laws from the conservationists!

The two petitions that have been lodged with the Supreme Court against the Forest Rights Act 2006 could undermine not just the FRA but many of our conservation and environmental laws, undoing decades of hard work by conservationists, says Ashish Kothari

On March 28, 2008, the Supreme Court admitted two petitions filed against the Forest Rights Act 2006, and issued notices to the central and state governments to respond. Framed by a few conservation groups, the petitions argued that the Act could seriously threaten India’s forests and wildlife. Thus began a new chapter in the stormy saga of this legislation, implementation of which promises to bring about drastic changes in the manner in which our forests are managed. For better or for worse, only time will tell. Meanwhile, however, in a supremely ironical twist, one of the petitions filed may inadvertently undermine the legitimacy of most of India’s conservation laws!

What is the Forest Rights Act?

Before we get into the strange phenomenon of conservationists endangering conservation, a word on the Forest Rights Act (FRA). This law is the first one to acknowledge that forest-dwelling populations in India have been unjustly treated by denying them rights to the lands and resources they use. Several hundred million people in India are dependent on forests for various direct uses; a portion of them also live on forest lands, or are in settlements that are within or just adjacent to forests. Unfortunately, their customary rights to these forests have only partially been recorded, and indeed often denied without justification or without providing alternatives. The FRA attempts to right this wrong, by providing such people an opportunity to claim rights to:

  • Get titles to already occupied/cultivated forest lands that are currently considered ‘encroachments’ (part of which are actually traditionally cultivated or occupied lands that were illegitimately classified as ‘forest lands’ by the colonial or independent Indian governments, but part of which are also recently encroached forest lands).
  • Access and use/sell forest produce that has been traditionally collected, for example grass, medicinal plants, fuel, honey, bamboo, etc.
  • Manage and protect forests that have been customarily managed by the community.
  • Protect traditional knowledge.
  • Get developmental facilities such as health, education, communication, and power.

The FRA also empowers gram sabhas of forest-dwelling communities to conserve forests and wildlife. In the case of adivasis who have been classified as ‘primitive tribal groups’ (on account of their very ancient cultures and relatively isolated existence), the FRA gives them the right to protect their habitat.

Ever since the FRA was first introduced by the government in the form of a Bill (in 2005), it has been the subject of extremely heated debate. Pitted against each other are several social activists and adivasi groups, many of whom think the FRA is the best thing to have happened to forest-dwellers since Independence, and some conservationists who think the FRA is an ecological disaster in the making. Other organisations and people of various persuasions have taken a more moderate position, supporting the provision of rights to forest-dwellers but also expressing concern about the potential social and ecological impacts.

Attempts to create space for dialogue amongst the two extremes of the debate, however, have failed to bring them together. The petitions in the Supreme Court (and another four in high courts), have only caused further polarisation.

Will the legal challenge backfire?

One of the petitions in the Supreme Court (at the time of writing this, the other one is not available), filed by three prominent conservation and one adivasi organisation, challenges the constitutional validity of the FRA and asks for it to be struck down. It alleges that the FRA will “destroy the integrity of the last remaining forests by enabling alienation in perpetuity of vast tracts of forest lands,” and “will result in the destruction of wildlife, wildlife habitats and will seriously erode the ecological integrity of the last remaining forests in India”. It also seeks enforcement of state laws that prohibit transfer of lands by/among scheduled tribes (STs), and return of lands illegally alienated from such communities.

Two key arguments underlie the petitioners’ constitutional challenge. One, that the Indian Parliament cannot legislate on matters of land, as these are exclusively the domain of state governments (as per entries 18, 35, 45 of list II of the Seventh Schedule of the Constitution). Second, that while ‘forest’ is a concurrent subject (as per entry 17-A, list III of the Seventh Schedule), giving jurisdiction to both central and state governments, this term does not include ‘forest land’, and that therefore Parliament’s enactment of the FRA is a “colourable exercise of said power”.

If the Supreme Court accepts these two arguments, it will open up for legal challenge a whole host of conservation and environmental laws!

The Indian Parliament has legislated on the issue of land, including forest land, on many occasions. For instance, the Forest Conservation Act (FCA), which is credited by environmental groups (including some of the petitioners) as having been instrumental in slowing down the diversion of forest land for non-forest purposes, was promulgated by Parliament in 1980, and says:

“Notwithstanding anything contained in any other law for the time being in force in a state, no state government or other authority shall make, except with the prior approval of the central government, any order directing… that any forest land or any portion thereof may be used for any non-forest purpose.”

Other related laws dealing with land that have been enacted by Parliament include the Wild Life (Protection) Act (WLPA), which dictates how lands and rights on lands within protected areas are to be dealt with (for example, in sections 19-25 dealing with the settlement of people’s rights), and notifications under the Environment Protection Act (EPA) such as Coastal Regulation Zone (CRZ), which deals with coastal lands, or the declaration of ecologically sensitive areas by the central government.

It is interesting that if Parliament is not supposed to have powers to make laws on land matters, then the FCA is even more up for challenge than the FRA. The latter actually mandates state governments to carry out most functions, whereas in the case of the FCA, the central government explicitly takes a controlling function to itself.

In their misguided zeal to ‘prove’ that the FRA is against the Indian Constitution, the petitioners have opened up a veritable Pandora’s box over which they may have no control!

One sincerely and fervently hopes that the Supreme Court will have better sense than to accept these grounds.

Elitist conservation

The petition displays three other characteristics that have plagued India’s urban conservationists for decades: a somewhat schizophrenic view of what threatens forests and wildlife, a tacit support for top-down, undemocratic policies and practices, and an unfortunate disdain for local communities. Another constitutional ground that the FRA is challenged on is that giving rights to forest-dwellers would impinge on the fundamental rights of all citizens to “natural heritage and ecology”, and is therefore violative of Article 21 of the Constitution (right to life and liberty). This is a debatable point. Certainly, the existence of healthy and adequate forest cover must be considered part of the fundamental rights of citizens. But why should this be challenged when giving forest land rights to forest-dwellers, but not when giving forest land to industry, especially when the former are mostly already without actual forests, while in the case of the latter, actual (in some cases untouched) forests are being diverted? The petitioners are surely aware that the diversion of forest for non-forest purposes, mostly dubious ‘development’ projects, has significantly increased in the last few years. Yet they have not gone to court challenging such diversion as a whole, on grounds of fundamental rights. This seems to show a clear elitist mindset and perhaps even panders to the mindset of some of the Supreme Court judges who have, in recent times, shown clear discrimination and inconsistency in often allowing destructive projects (for example, Vedanta’s mining in Orissa, the Sardar Sarovar dam in Gujarat), while stopping people’s rights to forest resources (for example, in the ongoing Godavarman case relating to forest lands). What should of course be argued is that the FRA’s provisions, which do not provide for clearing any new forest to give land rights, must be strictly enforced.

The petitioners also consider giving gram sabhas the right to claim management and protection rights over forests under their traditional jurisdiction a serious threat. It is clear that they simply have no faith in the ability of communities to conserve forests. This is justified to an extent, for across India, in many villages, forests have disappeared. However, there is also the widespread phenomenon of community-conserved areas (CCAs) initiated by people themselves or by forest officials or NGOs. Orissa alone is reported to have 10,000 community-protected forest areas; forest CCAs are widespread also in Uttarakhand, Maharashtra, Rajasthan, and some other states (see www.iucn.org/themes/ceesp/Wkg_grp/TILCEPA/CCA%20India
%20brochure%20(2).pdf
).

The joint forest management programme has in just 15-20 years demonstrated how, with even minimal powers but where sensitively assisted by forest officials, communities have regenerated or protected millions of hectares of forests. Evidence from around the world overwhelmingly shows how people with adequate stake and authority, combined with clear responsibilities, are much better stewards of natural resources than those who live in perpetual fear of being evicted from their lands or blocked from using these resources. The petitioners obviously do not believe this, and in doing so tacitly support today’s undemocratic system in which a centralised bureaucracy is given all the control.

In a way, much of this approach is puzzling. Many of the same people who have filed the petition would argue vehemently against destructive ‘development’ projects, as also against corrupt or inefficient government agencies for failing to protect forests and wildlife. Yet in their rush to block the FRA, their vision of these contradictions appears to have got clouded.

Just like the threat to India’s environmental laws that they may have inadvertently set in motion, the elitist model of conservation they are propagating also threatens conservation. Over the past few decades, policies of forest and wildlife protection have adversely affected millions of people who depend on natural resources for their survival and livelihoods. Some 3-4 million people live within the 4.7% of territory that is under national parks and sanctuaries, but instead of taking their rights and needs into account, wildlife policies and programmes have systematically alienated and dispossessed them. The result is not only mass human suffering but also a severe backlash on wildlife and forests in the form of greater local support for poaching, violence against staff and loss of traditional conservation practices. It even aids the spread of ‘extremist’ activities that make official work difficult, if not impossible, in parts of central, eastern and northeastern India. In a few exceptional cases where sensitive forest officers or NGOs have worked with such people (for example, in the Periyar Tiger Reserve in Kerala, and most recently the Manas Tiger Reserve in Assam), both conservation and livelihood status have been considerably enhanced. But this lesson is lost on a handful of conservationists whose tunnel vision is still influential in determining conservation policy.

Come to think of it, if India had adapted more enlightened forest and wildlife policies from the start there may never have been the need for a law like the FRA! Examples like Periyar and Manas, or the many community-conserved areas spread across India, would have been the rule rather than the exception. If the legitimate needs and aspirations of forest-dwelling communities had been respected and provided for, within the ambit of existing forest and wildlife laws, why would such communities need to agitate for a separate law providing them rights? Indeed, integrating their rights into conservation policy a few decades ago would have been far easier and less conflict-ridden than in today’s context when many factors within and outside these communities have changed. Which brings me to my final point. 

Taking care of environmental concerns

Arguing against a petition that is trying to block the FRA on flimsy grounds should not be seen as a wholehearted endorsement of the FRA. Any law that attempts to provide rights and privileges to large sections of Indian society is bound to create its own complications and conflicts. This is especially because forest-dwellers are not living in the same context today as they did at the time of Independence, or at the time that laws like the Forest Conservation Act and the Wild Life Act came into being. Situations are far more complex: adivasi lands have been encroached by non-adivasis or adivasis from other states, many forest-dwelling communities are now integrated or closely connected to commercial markets, urban and modern lifestyle aspirations are entering the newer generations of these communities, and so on. Coupled with all this are a few provisions of the FRA that raise serious concern. For instance, the over-generous cut-off date of December 2005 (such that any lands ‘encroached’ by adivasis up to that period will be eligible to be regularised), has raised real fears of fresh encroachment incited by political interests who will promise encroachers titles under the FRA (the FRA explicitly does not allow for this). News reports from Andhra Pradesh, Gujarat, West Bengal and Chhattisgarh point to such illegal happenings (though a few were also shown by independent investigations to be rumours). Rights to facilities like roads and transmission lines, provided under the FRA and exempt from the purview of the FCA, could be misused and lead to forest damage, or the opening up of areas for exploitation by outsiders. (Then again, if the petitioners succeed in establishing their constitutional grounds for challenge, the FCA may be killed anyway!). Organisations have raised fears about social conflicts too, especially where non-adivasis have taken over adivasi lands, or where dominant land-owners and castes will try to corner forest rights that should legitimately belong to weaker sections in the village. There is also the concern that the FRA’s provisions for private landholdings will dominate the claims process, while community rights to forests and forest protection may get sidelined.

Unfortunately, opposition to the FRA by some conservationists is so broad and polemic that genuine concerns like the ones stated above are drowned out in the ensuing debate. For their part, many proponents of the FRA too are guilty of downplaying the environmental concerns and responding to critiques of the FRA by attacking the bona fides of the critics (for example, calling them “zamindars”) rather than addressing only their concerns. Reasoned dialogue between the more moderate amongst those opposed and those in favour has taken place through efforts like the Future of Conservation network (see www.kalpavriksh.org), but public (especially the media) space has been hogged by the extremists in the debate.

It is tragic that the shape of the final Act and Rules, and some of the implementation measures, is influenced more by hardliners on both sides (resulting in strange compromises) rather than by those who believe in a balanced approach. The petitioners against the FRA could well have worked with more moderate supporters of the FRA, and vice-versa, to push for a more progressive law and more effective rules. This could perhaps still happen. For the moment, however, the petitioners have ensured the continuation of a polarised public debate. And in their zeal to undermine the FRA altogether, they have presented arguments that could threaten most of our conservation and environmental laws. It will be supremely ironical if posterity remembers these organisations as being the ones that undid decades of hard work by conservationists, in their misplaced bid to deny forest-dwelling communities their right to be full citizens of this country. 

InfoChange News & Features, April 2008