Proposed amendment to Indian Forest Act may "displace" traditional forest dwellers

By Santosh Gedam*
Reserve and protected forest ideas evolved during colonial period to allow British government unfettered access to further its interests by trampling rights of forest dwellers.
Forest governance has an interesting history in India from British East Indies Company trying to capture it for timber from the Malabar region of west coast after impressing Britain Royal Navy with Malabar timber warship in the eighteenth century to British government taking over its control to serve colonial projects.
During the colonial control of forests in India, the British government seems to have arrived at varying governance models across Indian states. As noted by Ribbentrop, India’s Inspector General of Forest in the last years of the nineteenth century, in case of Madras state, villagers’ rights over jungles could not be accommodated in the broad governance scheme envisaged in the Indian Forest Act 1878.
It is evident that the British government approached natural resources from the single lens of exploiting natural resources. Annual reports of colonial forest divisions are often evaluated based on the amount of revenue it generated. The colonial government realized the importance of having an infrastructure to rapidly deploy troops across Indian Territory.
Lord Dalhousie, in his letter to directors of the company in 1853, emphasized the need for having a railway network. Donaldson, an MIT economist, in his research reports military objective as the dominant reason for undertaking railway project. In 1855, Lord Dalhousie circulated a memorandum on forest conservation suggesting that teak should be declared state property and its trade strictly regulated.
After the Indian Mutiny of 1857, railway expansion became a necessity. It is in this railway project that the colonial government realized the need for timber for railway sleepers. Failed experiments of Forest Conservation-ship and ad hoc exploitation of at whims and fancies of local rulers and British officials led the colonial government to take control of the forest to support its endangered colonial project.
Having no experience with forest management, the British Government appointed a German forest officer, Dietrich Brandis as India’s first inspector general of forest in 1864 which further led to the establishment of powerful forest bureaucracy and enactment of Indian Forest Acts of 1865, 1878, and 1927. Brandis introduced the concept of scientific forestry, an idea which evolved in Prussia in 1775-1800 and expanded to other parts of the world unchecked.
As noted by a scholar from Yale University, Prof James Scott, newly introduced scientific forestry, served the colonial interests of revenue maximization and adopted a tunnel vision to serve its specific objectives. Seeing no value in the biodiversity of natural forest in its forest management scheme, scientific forestry focused on producing timber by mapping and exploiting the forest.
Evidentially, the experiment failed, leaving the natural forest as wastelands. Further efforts to revive the original forest also failed as it was difficult to know the complex dynamics of biodiversity and flora and fauna. It is in this background that the forest bureaucracy was born in the nineteenth century in India. It intended to take control of the forest and adopt scientific forestry to produce timber for British projects.
While the forest legislations were taking shape in the 1860s, not all provincial states were in support of the British government’s idea of declaring forests as a reserve or protected forests. For example, Madras Province recognized villagers’ opposition to the idea of reserved or protected forest. As Ribbentrop notes, Brandis was deputed in 1881, which could lead to the enactment of the Madras Forest Act 1882.
The Indian Forest Act 1865 and Forest Act 1878 established monopoly of colonial government over forests in India. Further through the Indian Forest Act 1927, the colonial government captured and controlled the forest more intensely. Forest-dwelling peasants’ struggle with British government informs us about the possible conflict due to the colonial forest governance model.
With supremacy in legislative and military capability, the colonial idea of forest governance prevailed. These inherited colonial legislative policies are critical for anyone trying to conceive the idea of forest management in the post-colonial era.

The supremacy of the Constitution

Treatment of colonial legislations in the post-colonial period is subjected to Article 13 of the Constitution as under.
“13. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.”
Despite the express provision for declaring any colonial law void, any law inconsistent with the provisions of Part III would continue to operate till it is declared void by the appropriate court. Therefore, in the case of colonial forest legislations, the onus is on the people suffering violations of fundamental rights due to colonial legislations.
Forests territories are correlated with the demographic distribution of Scheduled Tribes (ST) population in India. Article 19(5) which is a cardinal provision to safeguard the interests of ST has remained as dead letter since long denying them constitutional protection.
“(5) Nothing in 1[sub-clauses (d) and (e)] of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.”
The constituent assembly envisaged the scheme of protecting the interests of ST even at the cost of restricting the cherished right to freedom; this provision informs the level of their vulnerability. This aspect is essential to envision the broad idea of how forest governance has been conceptualized in independent India. The claim made in this article is further reinforced when we look carefully at the provisions of 5th Schedule of the Constitution which are again cardinal for the peace and good government in the Scheduled Area which is the mostly forested area.
Recognizing the exclusion of forest dwellers from the governance of forests, the Indian Parliament after 60 years of independence with the intent of undoing “Historical Injustice” on the forest dwellers during colonial and post-independence period, legislated the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) which recognized for the first time the complex way of living of forest dwellers in the forest ecosystem.
The Act recognized several rights significantly being right to habitat, access to biodiversity, intellectual property and traditional knowledge related to biodiversity and cultural diversity, etc. These rights are an integral part of their right to life as guaranteed by Article 21 of the Constitution. Right to dignity, health, and livelihood are now established by the Supreme Court as part of the fundamental right to life under Article 21.
Article 25 recognizes right to religious practices. Constitutional safeguards for the forest dwelling communities have led to milestone judgements like Niyamgiri and Samatha judgments by the Supreme Court. It is to be noted that what FRA does is provides channels to put in motion constitutional rights under Article 21 and other provisions in the constitution for forest dwellers.
It is this broad conceptualization of forest governance which should be the basis for any legislation colonial or post independent mooted by the forest bureaucracy for testing validity.
Recent question of eviction of forest dwellers pending in the Supreme Court or the proposed draft of the amendment to colonial Indian Forest Act 1927 as circulated by the forest bureaucracy during Model Code of Conduct (MCC) period of general election try to displace traditional forest dwellers.
With the fundamental rights under Article 21 and its interpretations as provided by the Supreme Court, the RF and PF ideas in the proposed amendment are inconsistent. These ideas further reinforces monopoly with sweeping powers to forest bureaucracy over forest governance.

 Such framework of governance needs to be scrutinized in the backdrop of the Constitutional provisions which provides a broad governance model through an array of provisions and a schedule as prima facie there are possibilities of violations of fundamental rights of the forest-dwelling population.
The proposed amendments need to make space for the forest dwelling communities’ rights under Article 21 and its interpretations as provided by the Supreme Court. Proposed amendment needs to look at forest dwellers as stakeholders of forest resource and not as unwanted agents to be relocated with compensation payment.
To allow voices of forest dwellers, the Tribal Ministry of each state and at the centre needs to lead the discussion on any legislation involving interests of forest dwelling communities. Without such inclusive discussion and debate on the important amendment moved by the forest bureaucracy, there would always the possibility of trampling of rights and continuation of historical injustice.
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*Ex-Prime Minister's Rural Development Fellow, doctoral student, Public Systems Group, Indian Institute of Management-Ahmedabad