INDIA is facing an acute conservation crisis. On the one hand, the showpiece of the country’s long-standing conservation efforts managed by the Ministry of Environment and Forests (MoEF), Project Tiger, has been under-mined by the latest epidemic of tiger poaching. On the other, another agency of government, the Ministry of Tribal Affairs (MoTA), has just come up with an outlandish scheme to actually take over forest lands with resident tribal populations. This latter scheme, as articulated by the Scheduled Tribes and Forest Dwellers (Recognition of Forest Rights) Bill (‘the bill’), threatens to destroy India’s unitary forestry system which does not partition forests by caste or community. It is a moot point whether this gargantuan takeover and settlement of forested public lands will actually help tribals, or enrich those who speak for them in Delhi.

The recent tiger crisis has been a wake-up call to the conservation community, used to being furnished healthy census figures by Project Tiger. Investigations after the Sariska expose have uncovered a growing and undiminished trade in animal parts through Tibet. The tiger story in 28 small parks, constituting just over 1% of the country’s land mass, is but one indicator of a larger crisis. The saga of the destruction of India’s forests since independence is long and varied, and has been chronicled elsewhere. The forests that remain, saved more by geography than the custodial care of the politically-vulnerable state forest departments (FDs), are reeling under severe human and livestock pressure. All this goes on while state governments even divert the salaries paid by the much-vaunted Project Tiger; some protected areas (PAs) are in arrears of over a year!

In the absence of political will, last identified with Indira Gandhi, who passed the Wildlife (Protection) Act, 1972, and the Forest (Conservation) Act, 1980, the FD is unable to stem the rot. Today, the FD has lost custodial control of PAs like Indravati, Palamau, Kaimur, Valmikinagar, Gahirmata, Hastinapur, Orang, and Chandraprabha, what to speak of reserve forest (RF) lands. Despite the fantastic claims of activists, protected forests, community forests, and panchayat forests are virtually non-existent. Ditto the case of tribal managed forests in the North East (especially those under Schedule VI). Only alienation from resource use has saved existing RFs and PAs. This is the ground reality.

 

 

It is these very last exclusionary forests, saved from human pressure by continuous protection since 1864, that are now the target of the justly controversial bill. The bill would recognize up to 2.5 hectares of pre-1980 land claims as the traditional right of each nuclear tribal family. It is expected that in the first instance this would alienate a staggering 15% of India’s forest area, or nearly 3% of the country’s land mass (500,000 sq km).

What a novel tool for patronage and immense vote gathering ability. As tribal populations grow, another 15% of India’s forests could be distributed for political largesse in as many years. With a precedent till 1980, there is no reason further claims till 2005 cannot be entertained. If marginal forest land is an unexceptionable developmental benefit why limit awards to tribals only? Shouldn’t the Ministry of Social Justice claim land on behalf of SCs/OBCs? And the Ministry of Agriculture for sundry poor cultivators? How about a religious claim to make this a familiar Indian potpourri?

Don’t we also have an obligation to ‘tribal’ settlers from our eastern neighbour, who aren’t quite satisfied with occupying a quarter of Assam’s forests? Is the 2.5 ha. figure sacrosanct or could it be increased to provide greater ‘equity’ in time to come? This exercise in competitive populism makes a caricature of sustainable development, and must be seen for its moral, legal, developmental and ecological bankruptcy.

The problems which will be created by the bill are very real to foresters. Witness the politically motivated agitation re-launched by Gujjars of Rajaji, who had agreed to the generous resettlement scheme under implementation after 20 years of consultation, with full judicial review, using just the 21 December MoEF letter to chief secretaries. With the proposed bill, the entire FD case for conservation is weakened. At least in this case the state government is not (yet) yielding, citing the imminent notification of the Rajaji National Park (NP). What of other locations, where the state is less committed to conservation? What of Assam and Orissa, where the state is actively encouraging settlement of forests by illegal migrants from our eastern neighbour? It’s not difficult to categorize the settlers as tribals, till other ministries/political formations claim them as their own prodigal vote banks.

 

 

The bill, as currently drafted, is full of so many legal loopholes that an elephant could walk through it! So many loopholes and grey areas cannot be explained by drafting errors alone. Reading this draft bill, in the context of the Wildlife (Protection) Act, 1972, and the Forest (Conservation) Act, 1980, raises the fundamental question as to whether this bill, once approved, will completely supersede previous legislation or not. The draft bill which is available ‘publicly’ admits as much; given that the authoritative version has not even been posted in the public domain, asserting as some do that existing laws would not be superseded is speculative.

If the only problem this bill addresses is the ongoing tardy process of forest settlements, these can more than adequately be handled by existing laws. Once the Godavarman case is disposed off by the Supreme Court, the government can well constitute new judicial tribunals to speed up the process. If the objective is to provide 2.5 ha. of land per tribal family, this too can be done within the ambit of existing laws, by conducting forest settlements which derecognise pressured lands with little forest potential. There is no reason the forest settlement process should not be reworked with public scrutiny and legal oversight.

 

 

But obviously the bill is meant to subserve some other purpose. Entirely drafted by non-tribals and non-conservationists sitting in Delhi, this bill will result in a radically new dispensation for millions of people and hundreds of thousands of sq km of forest land, all without sufficient public consultation and scrutiny. Examining the list of loopholes and grey areas listed below, it is hard not to be concerned about the future of the country’s forest and conservation system (even such as it is) and forest-dweller, since the forest and not marginal agriculture provides the ultimate succour to tribal and other forest dwelling people.

If the exception were eventually made that the bill would not apply to existing NPs and sanctuaries, this carve-out of 15% of the forest area would not be that meaningful. The majority of NPs and sanctuaries have not yet been notified. Sariska NP, for example, has not been notified even after 20 years of this being proposed. In other words, village rights have largely not been settled/extinguished. Clearly, the bill would then still apply to these un-notified parks. Also, the process of notification would be rendered infructuous, as no further parks could ever be constituted in areas with traditional rights. This bill would buttress the paramountcy of such gram sabha-instituted rights all over India, whether in un-notified or prospective parks. So, the process of accelerating conservation, even if it is by a highly fair and generous settlement of rights, and consequent increase in size and number of protected areas, would cease.

 

 

The objective of public policy should be to harmonize the potentially conflicting interests of people and wildlife resources. The bill in its present form is a short-term concession to land, timber and electoral interests. What India needs is an integrated approach to forestry, wildlife management, and the much-needed development of forest dwellers – an integrated approach which should no doubt be supported by the rapid conclusion of forest settlements under existing laws.

In addition, since there is a renewed thrust on tribal and forest-dwellers’ development, we must conduct a nationwide, time-bound process of public hearings at the state and district levels to hear from genuine tribal voices in the field. What do the tribal and other forest dwelling people of India want by means of development? Activists in India, no matter how well-meaning, have shown their total disregard of the legal framework and forest and wildlife conservation interests. It is also possible they reflect tribal opinions from all parts of India poorly, since they are so much at variance with forestry, which is critical to tribal survival, what to speak of tribal development.

Presented below are some proposals which could harmonize tribal and forest dwellers’ development with the concerns of forestry and wildlife conservation. There may be other solutions which emerge from the field; for meaningful tribal and forest dweller development, the most robust of these proposals need to be urgently developed into focused government programmes with budgets and devolution of responsibility. All these proposals go beyond simply providing insufficient quantities of marginal land for tribal development.

* For those forest dwellers who wish to stay on in the forests, the government should provide employment in forestry. As a first step, given the large population involved, the vacancies in the FD, which haven’t been filled in over 20 years, should be filled in preference by forest dwellers, especially the most disenfranchised and poorest segments. Written exams could be replaced by field tests, designed to select people who are genuinely knowledgeable about the forest and for whom such remote postings are not a punishment, as they have become for far too many foresters in recent years.

This change will bring in expertise and much-needed commitment to the state FDs, besides providing steady incomes to and reducing the harassment of forest dwellers. Up to 80,000 posts could be filled up to bring the FD back to sanctioned strength. The Centre could offer to fund this recruitment from the funds for the soon-to-be-passed Employment Guarantee Act (EGA). This solution is a win/win for forestry, for the FD, and for forest dwellers. Rather than giving tribals access to forest lands, this would give them much more, and what they likely want – the forests themselves. India would benefit greatly from forest stewardship by its forest denizens.

* For those areas where there is growing conflict for forest resources, primarily firewood and grazing, the time has come for pragmatically addressing the problem. In exchange for forbearance, the state can share forestry revenues with neighbouring communities. This has to handled with sensitivity and impartiality, as no state in India would like to see its forest revenue stream reduce. This proposal aims to actually increase the revenue stream, and to share the positive increment with local people in a transparent manner. Grazing is not a lucrative activity, but receiving cash transfers (such as Rs 250 crore annually for the tendu trade in M.P. alone) would go a long way in building support for conservation.

* The current debate can be used to advance the public interest in tribal development to actually increase the forest cover of India from 20% to 33%. Many of the lands that have been settled in the last 50 years are marginal lands, with poor soils, high rock and mineral content, and would have been better off left for grazing. India has virtually no grazing lands left, all of which were under the management of gram sabhas (a sobering thought, given this bill would hand over open-ended recognition of rights and management to the same gram sabhas).

For those wastelands, either in private ownership or under the control of the FD, the government could prepare forest entrepreneurship schemes to be implemented solely by forest dwellers. With the provision of seeds and manure by the FD, forest dwelling and forest-adjacent gram sabhas could be entrusted the task of regenerating true community forests. The usufruct of these lands would devolve solely to the members of the gram sabhas. In this manner, the forestry imperatives of the state could be brought to coincide with the provision of private benefit to those who have labour and expertise to offer. For the initial years, the non-farm employment so created, which is a key objective of the government, could be funded under the EGA.

* Additionally, for those tribal and other forest dwellers (and experience suggests there are many), who want to enjoy the benefits of mainstream development, generous resettlement packages should be designed and implemented to settle them with modern amenities outside forest areas. Such voluntary programmes, designed by locals themselves, and guaranteed as SPVs by courts and NGOs, can help integrate tribals and other forest dwellers in the mainstream of national life. It is unjust and incorrect to assume that all tribal and other forest-dwelling people want to permanently remain in a hunter-gatherer stage; many of the younger generation want to and have a right to develop in conventional terms.

 

 

Instead of clearing forests to pay for the failure of rural and tribal development, we should influence the government to complete the long-overdue forest settlement of India (seven states have already done so, which is why the need to regularize more encroachments is not clear). This way forest villages would be systematically, transparently and voluntarily resettled outside forest areas. Degraded forest lands and those forests that cannot possible be saved would be surrendered for settlement. In this manner, development could reach disenfranchised and remote forest-dwelling communities – specifically those that actually want it. This has eminently successful precedents, for both humans and animals – Bhadra, Melghat, Kuno-Palpur, Panna, Kanha, Nagarhole, and now, Chilla. Villagers across the country are willing to be resettled, provided they get to design a better deal and execute it with the help of the courts and NGOs.

The Centre could initially budget a nationwide scheme of Rs 500 crore annually, which should suffice to resettle approximately 200 forest villages. The MoTA would be ideally suited to design and manage this programme, along with a collegium of relevant government agencies, the FD, and responsible NGOs. Norms for resettlement could follow those proposed in the draft tribal policy, such as providing equivalent amounts of land, preferably under the ambit of a right to information provision. There should be no basis for resettlement by the MoTA to become another tool of harassment and exploitation of forest-dwelling people. If such a scheme is successful, and greater numbers of forest dwellers volunteer for resettlement, this could become the greatest and most empowering facility for tribal development, such as we have not seen in the last 50 years.

 

 

That the passage of the pernicious bill is taking place precisely at a time of the current tiger crisis indicates that the small and fragmenting national parks we have, with current legislation and politically-hampered administration (which has not convicted one large poacher, and certainly made little impact on building support for conservation among forest villagers), is simply unable to protect sensitive animals like the tiger.

As a society we need to recognize that man and nature cannot possibly coexist with such vast, growing human and livestock populations (I am yet to meet an ecologist who says tigers can coexist with forest-villages, livestock, head-loading of firewood, poaching, irrigation projects, VIPs, and Project Tiger censuses!). We need to completely isolate a smaller number of pristine forests and, simultaneously, help our tribal and other forest dwelling, remote populations by integrating them in forestry elsewhere. For the purpose, both conservation and development programmes must involve the people concerned (forest villages, foresters, development agencies), so they are ultimately successful. If forest dwellers find that generous and participatory resettlement schemes can in fact build new lives spared of remoteness, man-animal conflict, and the deficit of development, then so be it – no one has a right to deny people the choice of mainstream development.

 

 

The current debate impels us to create a new approach to conservation. By protecting whole ecosystems – the Aravallis, the Vindhyas, the Satpuras, the Western terai, the Eastern dooars, the Western Ghats, the Southern rain forests, the Andamans and North East rain forests – and building prosperity for forest dwellers. When such a comprehensive effort is undertaken, it will protect not only the tiger, the elephant, forest and water resources, but generate non-farm employment and income.

The passage of this bill, on the other hand, would irreversibly Mandalize and then marketize public forest lands, using the excuse of our long-suffering tribals. The recognition of similar forest land rights for other castes and communities, shepherded by other land-hungry partisan ministries (as would inevitably follow from this bill), will totally deforest India and lead to mass tribal starvation.

To what extent will forest land decrease with the passage of this bill? What safeguards exist for limiting the recognition of rights to forest land by gram sabhas, especially since they are outside legal review? If there are no safeguards to limit claims, how much forest land could be distributed at an upper limit? Why does this legislation not offer the same forest lands to other forest-dwelling communities? Are SCs and OBCs and poor populations not deserving of forest land? What safeguards are there, so rights later than 1980 are not recognized at a later date? If all forest dwellers and prospective claims are included, will the claims not exceed total forest cover? Are rich tribals and tribal landlords deserving of forest land claims? What is the definition of people living ‘around’ forest areas? How far is ‘around’? Given tribal populations are growing, could the claim also grow in the future as family size grows? How are commercial needs defined since they are to be excluded? When do household needs become commercial? Would a gram sabha make such metaphysical value judgements on its constituents? How can benami sale of forest land distributed under this bill to tribal people be prevented, since it takes place with other reserved lands all over India? Can corporates bypass environmental impact assessments of the MoEF by taking over benami lands? Mention is made of biodiversity conservation, ecological balance, protection of forests, and sustainable use – none of these are defined. How will gram sabhas attempt to achieve these undefined objectives? What is the role of the forest department since it isn’t even defined as a competent authority? Should the FD stop further encroachments? Should they stop their work since the task of conservation has been provided to the gram sabhas under the MoTA? What is the track record of gram sabhas with managing development funds? Is there any gram sabha which will restrain/restrict granting of unlimited rights for laudable but undefined conservation objectives? Are gram sabhas conversant with conservation practices? Why has the jhum cycle in the North East, where the majority of lands are managed by tribal councils, come down from 30 to 3 years? Why is hunting not defined? Is it true that tribals do not hunt? Will gram sabhas restrict the hunting of their own constituents, or should we simply ignore the long history of tribal hunting? Can the conservator at the district committee restrict granting of unlimited rights? What authority would he have by himself in the committee? Would the MLA/zilla parishad member on the state committee ever be motivated to limit rights? Isn’t it true that the gram sabhas would want to grant the ceiling of 2.5 ha in actual practice to all? Wouldn’t it be fairer rather than adjudicating individual claims? Can oral testimony, resolutions of gram sabhas, and ‘relevant circumstantial evidence’ possibly be sufficient to approve claims? What prevents gram sabhas from functioning like other democratic bodies/state assemblies and turning the recognition of rights into a land fiesta? Why did forest land distribution get devolved to the level of the gram sabha and not even the district administration and forest system? Don’t gram sabha sarpanches regularly sell common property and grazing lands? What is the guarantee they won’t sell/colonize forest lands? Is there no corruption in gram sabhas? Is a fine of Rs 5,000 sufficient for all infringements, whether cutting of any number of trees or poaching of any number or kind of animals? Given the offence is compoundable, is this actually a safeguard? Are any areas sacrosanct, such as national parks, or can claims be entertained everywhere? Is there even one area in all of India where conservation needs can be given any priority? If the genesis of this bill is the harassment to forest-dwellers because of slow pace of forest settlement, why not speed this up with judicial tribunals and existing laws? What is the need for yet another law? Even a superficial legal review suggests this bill violates the protection afforded to reserve forest and national park and sanctuary lands under the forest conservation and wildlife protection acts respectively, besides turning aside the detailed system of settlements, fines and penalties defined by these laws. In violating existing laws, are those promoting the bill aware it will attract judicial review?

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* The author has recently written a book, Sariska National Park, Indus Publishing Co., 2005.