A no holds barred debate is at present raging between the activists supporting the proposed bill on the one hand and the wildlife and forest conservationists on the other. What added further fuel to the fire was the attempt by the central government in the Ministry of Tribal Welfare to push through (or rather smuggle through) the bill in the previous session of the Parliament without a semblance of a public debate on such a sensitive and complex subject after riding roughshod over the objections to the bill by the MoEF. In fact, so great was the hurry that the bill even completely, perhaps deliberately, overlooked the interests of the scheduled castes and other forest dwellers coexisting in large numbers along with the tribals in the same forests.

Why this tearing hurry to introduce the bill? What prompted it? Are there serious shortcomings in the existing laws and guidelines? What are the consequences of this bill going to be? Are vested interests at play like in the case of ‘malik makbuja lands’ where there was large-scale felling of valuable timber trees belonging to tribals and other weaker sections of the society by influential persons with the connivance of government officers in the then Bastar district of Madhya Pradesh? Have we not seen the forests of tribal areas in Madhya Pradesh (undivided) being depleted from 1,95,000 sq km in 1947 to 1,35,000 sq kms today? Are we not aware that though in the northeastern states the tribals control most of the forest land, yet there has been large-scale felling of forests over the years? In fact, so rampant and indiscriminate was the destruction and damage that the Supreme Court had to intervene to protect and conserve what little was left of forests and wildlife in that region.

The writer had the privilege to serve in what was then the North East Frontier Agency (NEFA; now Arunachal Pradesh) about 35 years ago. He had then lived, moved, trekked and camped in the remote mountainous tribal areas for five years and seen the poor tribals begging for permits from the forest department for cutting a couple of valuable trees, ostensibly for their personal requirement (for building homes), but in greater likelihood for selling the permits to non-tribals. Contrast also the present state of forests with what existed in the 1960s and ’70s in Arunachal Pradesh. Most of the rich valuable forests have simply disappeared. Again the Supreme Court after seeing the extensive damage, banned the permit system for trees.

Can we today overlook the fact that about five million ha of forest land has since 1950 been diverted in the country for non-forest purposes? How can we also ignore the fact that prior to the introduction of the Forest (Conservation) Act, 1980, about 1.5 lakh ha of forest land was being diverted annually for non-forest purposes? Have we not seen so many rivers and streams go dry because the shola and other dense forests have been ruthlessly hacked and removed? Is the professed social agenda hijacking conservation efforts? Are conservation and development compatible? Is it the case that because of the stringent provisions of the Forest (Conservation) Act, 1980 the environment impact studies for development projects in forest areas are being given to agencies who are pliable while honest and forthright scientists are being overlooked?

The recent State of Forest Report, 2003 brought out by the MoEF clearly demonstrates that the forests with more than 70% density constitute only 51,285 sq kms (1.56% of the country’s geographic area). The same report states that an area of 26,245 sq kms (about 0.75% of the country’s geographic area) of dense forest (more than 40% density) has been lost in just two years. Also that out of the 26,245 sq kms of dense forests lost, a total of 23,140 sq kms is in potentially rich tiger habitat states. These are some of the initial thoughts that come to mind as one ponders over the usefulness, or rather the uselessness, of the new draft bill.

 

It is often forgotten that India is amongst the 12 mega biodiversity countries of the world, home to about 45,000 species of flora and 81,250 species of fauna. Forests hold the key to India’s water and food security. More than 300 rivers originate in the 600 national parks and sanctuaries. It is, therefore, agonizing to see the tremendous pressure on forests and the unsustainable and uncontrolled removal and unregulated grazing (that damage regenerating seedlings) without any commensurate investment. In 1996, the fuelwood gap was 86 million tons and that for timber, 21 million cu mtrs. The free annual removal from forests is around Rs 40,000 crore and helps meet the livelihood needs of 300 million people (including about 80 million tribals) and 270 million cattle.

The fringe areas of the reserve forests, national parks and sanctuaries harbour more than four crore people living in about 1.73 lakh villages in an area of around 32 million ha of forests. The tribals who constitute about 8% of the country’s population are spread over 187 tribal districts in an area of 404,087 sq kms with about 60% of India’s forests. A 1989 survey indicates that 72% of the sanctuaries and 56% of the national parks have human settlements within their boundaries.

The practice of shifting cultivation in an area of 1.73 million ha – more in the northeastern states – is also responsible for the degradation of forests. An increasing tribal population and the decrease in productivity has resulted in reducing the cycle of shifting cultivation from 20 years to under five years. Forest fires have also affected the biodiversity of forests. The annual loss from forest fires is around Rs 440 crore, affecting about three million ha. In these circumstances, a sound and efficient management of the forests is imperative and has critical implications for the ecological security and consequential water and food security, and ultimately the very survival of mankind.

 

Forests the world over have another key role in the context of global warming. For instance, air pollution from countries such as Germany and Britain drifts to Russia whose forests, which account for 22% of the world’s forests, absorb them. Russia is therefore called by these countries, who can no longer be provided oxygen by nature, as their ‘oxygen bag’. Russia’s forests absorb about 15% of the global emission of carbon dioxide and emit about the same quantity of oxygen. A similar role is played by the Amazon forests in South America, which emit about 20% of the world’s oxygen. Can we in India afford to ignore this critical role of the forests? What type of forest policy should we be following?

The National Forest Policy, when it was formulated in 1988, had as its principal aim, ‘the essential stability and maintenance of ecological balance including atmospheric equilibrium which are vital for sustenance of all life forms, human, animal and plant. The derivation of direct economic benefit must be subordinated to this principal air.’ It also envisaged an increase in the forest cover to 33% of the land area of the country by 2012 from the existing 23%, that is an increase of about three million ha annually, not an easy target considering that at present only one per cent of the annual plan funds go towards forests and wildlife. Moreover, the states in India accord low priority to forests and very often the allotted funds also get diverted as they are not ‘earmarked funds’.

 

The National Forest Policy, while giving due importance to tribals, scheduled castes and other forest dwellers, particularly their requirements of fuelwood, fodder, minor forest produce and small timber so as to provide them sustenance, also visualized that the local communities be associated closely in protection, re-generation and development of forests. The policy also ensured that ecological balance took precedence over the economic benefits for only then can life survive on this planet. Further, with the kind of biotic pressures witnessed, the prime focus has to be on the carrying capacity of forests as there is a real threat of massive destruction of forests and consequently wildlife habitat. In these circumstances any populist approach to liberally regularize encroachments and grant forest land may mean inviting irreversible ecological disaster instead of maintaining ecological balance. No wonder, the National Forest Policy strongly discouraged encroachment by ruling out any regularization of existing encroachments.

It was against this background that the detailed policy ‘Guidelines on Tribal-Forest Interface’ were issued in September 1990 by the MoEF after arriving at a consensus in the State Forest Ministers Conference in 1989, Committee of Secretaries, Group of Ministers and the Cabinet. These guidelines were reviewed by the Cabinet twice – once in February 1991 and again in January 1992. This is being highlighted to drive home the point that considerable thought and effort had been given while framing these guidelines, and the state governments were not only fully in the picture but were, in fact, a party to them. Since these guidelines of 1990 are in a way the pivot around which the proposed policy of tribals forest rights revolves, it is imperative that we delve into them in some detail.

 

The first issue in the 1990 tribal-forest interface guidelines relates to regularization of encroachments on forest land. The main features are:

a) In the case of pre-1980 encroachments, where the state government had evolved certain eligibility criteria in accordance with local needs and conditions and had taken a decision to regularize such encroachments but could not implement its decision before the enactment of Forest Conservation Act on 25.10.1980, such cases would be reviewed individually by a joint team consisting of district representatives of revenue, forest and tribal welfare departments in a time-bound manner. Where proposals are yet to be formulated, the final proposal may be placed by the concerned ‘gram sabha’ with a view to avoid disputes in future (note the critical role assigned to the gram sabha).

b) Encroachments proposed to be regularized after survey must have taken place before 25.10.1980. These encroachments must be ascertained from the first offence report under the forest act at that time. The encroachment must subsist on the field and the encroached land must be under the continuous possession of encroachers, who should also meet the eligibility criteria to avail benefits of regularization. For instance, in Kerala the cut-off date was 1.1.1977. Scattered encroachments should be consolidated/relocated near outer boundaries of forests and demarcated with permanent boundary marks. All the cases to be regularized in a particular state should be sent in a single proposal and provide district-wise details, accompanied by a proposal for community afforestation as per guidelines.

c) The ineligible category of pre-1980 encroachment cases where the state government had taken a decision prior to the enactment of the Forest (Conservation) Act, 1980 are to be treated at par with the post-1980 encroachment and not regularized. Further, no case of encroachment that took place after 24.10.1980 is to be regularized and immediate action should be taken to evict such encroachers.

 

The figures of encroachment on forest land in the early 1980s was around seven lakh hectares; this has now gone up to around 12.5 lakh hectares. This is despite the fact that prior to 1980 a number of states had regularized such encroachments, which turned out to be a strong incentive for still further encroachment. Poor economic conditions and an absence of developmental activities over the decades forced local communities to depend heavily on the adjoining forests for livelihood. Keeping in view the guidelines of 1990 and based on the National Forest Policy, 1988, so far about 3.66 lakh hectares of encroachments on forest land have been regularized in Madhya Pradesh, Gujarat, Kerala, Karnataka, Orissa, Arunachal Pradesh, Tripura and Andaman and Nicobar Islands. This would indicate that had the machinery entrusted with the regularization of encroachment in states been exclusively earmarked and streamlined, and had the state accorded this task high priority to be completed in a time bound manner, progress in this regard would have been impressive. Unfortunately, most states were not only disinterested and lethargic but did not even bother to send proposals for regularization to MoEF. The state machinery needs to be shaken from its slumber and the chief ministers must take lot more initiative if the Guidelines of 1990, which in themselves are sound, are to be implemented swiftly as envisaged.

 

The Supreme Court meanwhile was so concerned about the widespread encroachments and declining forests that vide its order dated 23.11.2001, it restrained the state and central governments from further regularization of even the pre 25.10.1980 encroachments till further orders. The Supreme Court earlier had also elsewhere observed that whenever regularization takes place subject to imposition of conditions such as compensatory afforestation, the regularization becomes effective without the conditions ever being fulfilled. The court had then desired that the conditions imposed in relation to the regularization must first be fulfilled before any regularization is granted.

What complicated matters were the MoEF guidelines dated 5.2.2004. These were catastrophic and in gross violation of the letter and spirit of the National Forest Policy, 1988 and the Forest (Conservation) Act, 1980. The MoEF vide guidelines of 5 February 2004, decided to regularize encroachments on forest land up to 31.12.1993 as against the earlier cut-off date of 25.10.1980. This decision, out of the blue, was apparently taken keeping in view the forthcoming general elections. Full page advertisements also appeared in newspapers in this regard. This decision, however, was stayed by an order of the Supreme Court.

Meanwhile the MoEF in its affidavit filed in July 2004 for vacation of the stay filed before the Supreme Court, tried to justify the decision by stating that the guidelines of 5.2.2004 were based on the recognition of the historical injustice done to the tribals/forest dwellers through non-recognition of their traditional rights must be finally rectified. Further, because of an absence of legal recognition of their traditional rights, the adjoining forests have become an ‘open access’ resource for the dispossessed tribals leading to forest degradation. It was this new found approach of the MoEF in February 2004 and July 2004 that the Ministry of Tribal Affairs appears to have taken advantage of and thrown back at the MoEF when the latter objected to the draft bill. Since the bill visualizes dual control of forests, there is bound to be friction and conflict between MoEF and MoTA.

 

The second issue in the forest-tribal interface in the guidelines of 1990 relates to the review of disputed claims over forest land arising out of the forest settlement. The local inhabitants living in and around forest areas have preferred claims on certain notified forest lands on grounds that they were in occupation of such areas prior to the initiation of the forest settlement and thus want the title of such land conferred on them. Bona fide claims were reported to have been persistently overlooked. This matter was critically examined by a central inter-ministerial committee which after prolonged deliberation and consultation with representatives of the states suggested a feasible course of action to redress genuine grievances without jeopardizing protection of forests and forest land. The state government was to identify the following three categories of disputed claims:

a) Claims in respect of forest areas notified as deemed reserve forests without observing due process of settlement provided these pertain to tribal areas or affect a wide cross-section of rural poor in non-tribal areas and the claimants are in possession of disputed land;

b) Claims in tribal areas wherever there is a prima facie evidence that the process of forest settlement has been vitiated by incomplete or incorrect records/information provided such forest settlements pertain to the period after 1947 and the claimants are in possession of disputed lands; and

c) Claims in tribal areas wherever process of settlement was completed but final notification under Section 20 of the Indian Forest Act, 1927 is yet to be issued – where delay has occurred – provided claimants are still in possession of disputed lands.

 

After identification of the above three categories of claims, they will be inquired into by the state governments through a committee consisting of the divisional forest officer, sub-divisional officer (revenue department) and a representative of the tribal welfare department. This committee will determine after examining evidence whether in case of (a) above the claimant was in possession of disputed land before the notification declaring deemed reserve forest was issued and in case of (b) and (c) above the claimant was in possession of the notification showing the government’s intention to declare reserve forest was issued under Section 4 of the Indian Forest Act, 1927 and his rights were not commuted or extinguished. Once the bona fides are established the state government can restore the title to the claimants, ensuring that while so doing it does not result in honeycombing all forest land. Also, the land to be restored should be properly demarcated on the ground with permanent boundary marks. The approval of MoEF would thereafter be taken along with the proposal for compensatory afforestation.

Had these guidelines been properly implemented it would have greatly helped the local communities. Unfortunately the state governments also abdicated their responsibility in this regard and did not send any proposal to MoEF under the Forest (Conservation) Act, 1980. In fact, according to the MoEF the state governments have not even maintained a distinction between the guidelines on regularization of encroachment and the guidelines relating to the settlement of disputed claims of tribals over forest land and have mixed up the whole issue.

 

The third issue in the guidelines of 1990 on forest-tribal interface relates to disputes regarding pattas, leases, grants involving forest land and settlement thereof, even though these were issued under proper authority and orders of the concerned state government. The land in question continues to be in the possession of the allottees or is under their authorized use but its status is under dispute between different departments. Examples in this regard are the ‘Orange Area in Madhya Pradesh’ and ‘Dal Lands in Maharashtra’. These also include cases in which land was assigned by the revenue department supposedly from revenue lands, but eventually these were found to be notified forest land even though assignees were not dispossessed of their holdings.

These cases were to be settled at the earliest by the state government through the district level committee consisting of the divisional forest officer, sub-divisional officer (revenue) and the representative of the tribal welfare department. Wherever the leases pertain to the period prior to 25.10.1980 and could not be renewed because of the Forest (Conservation) Act, 1980 and the state government desired to renew such proposals, the same was to be sent to the MoEF expeditiously for approval under the Forest (Conservation) Act, 1980. It is again a lack of interest and priority on the part of the state government which has resulted in non-implementation of important guideline.

 

The fourth issue in the guidelines for forest-tribal interface 1990, relates to the conversion of forest villages into revenue villages. The forest villages were set up in remote and inaccessible forest areas with a view to provide uninterrupted manpower for forestry operations. Improved accessibility have made forest villages less significant. Many states have converted forest villages into revenue villages. In fact, 384 forest villages involving 34024 ha of forest land have been converted into revenue villages. There still exist about 2690 forest villages in the country. The National Forest Policy, 1988 states that these forest villages should be developed on par with revenue villages. The inter-ministerial committee had also gone into this issue and suggested:

a) Forest villages may be converted into revenue villages after denotifying requisite land as forest;

b) Villagers may be conferred heritable, but inalienable rights;

c) Administration of these and other revenue villages should be with the forest department; and

d) Habitation other than forest villages may be grouped into two categories that is: (i) cases where dwelling belongs to persons who have encroached on forest land; and (ii) dwellings of other persons who have been living there since long without encroaching on forest land for cultivation but their habitation are recognized as revenue or forest villages.

Further, the above two categories of cases may be examined on merit as below:

In the case of (i) above, wherever encroachments for agricultural cultivation are regularized the house sites and homesteads may also be regularized either in-situ or as near the agricultural field as possible subject to safeguards in the interest of forest protection and eligibility criteria as may be evolved by the state government. In the case of (ii) above, certain specific habitations, more than 25 years old involving sizeable group of families, may be examined case by case on merits for their amicable settlement.

e) Scheduled tribes and rural poor not covered under (a) and (b) above should be resettled in non-forest government land; and

f) All other unauthorized habitations must be evicted.

Here again, though the guidelines are elaborate and well-conceived, the main problem has been the failure of the state government to send proper proposals to MoEF. The state machinery has been found to be lacking in commitment and interest.

 

The fifth issue in the guidelines for forest-tribal interface 1990, relates to the elimination of intermediaries and payment of fair wages to the labourers of forestry works. The following are more important in the background of the National Forest Policy, 1988 and need to be strictly complied with:

a) No outside labour should be engaged in forestry operations where local tribals or other forest dwellers are available. No contract is to be entered into for imported labour. Tribal cooperatives should be involved wherever labour is in short supply;

b) Representatives of the tribal welfare department should sit on the wage board approved by the forest department for fixation of daily wage rates. Norms for payment of wages for piece works should be fixed.

These are well thought out guidelines which need to be adhered to scrupulously.

The sixth and the last issue in the guidelines on forest-tribal interface 1990 pertains to payment of compensation for loss of life and property due to predation-depredation by wild animals. Adequate and prompt payment of compensation is the answer. Compensation in the case of death of individuals has already been revised to rupees one lakh. The amount needs to be reviewed from time to time and suitably revised after taking into account all the relevant factors.

 

These guidelines of 1990 have been further reinforced by the National Wildlife Action Plan (2002-2016), Wildlife Conservation Strategy, 2002 and amendments in 2003 in the Wildlife (Protection) Act, 1972. The National Wildlife Action Plan 2002-2016, approved by the Government of India in 2002 and sent to the states has a policy imperative which states that since local communities traditionally depend on natural biomass, they must therefore have the first lien on such resources. Such benefits must be subject to assumption of a basic responsibility to protect and conserve these resources by suitably modifying unsustainable activities. Conservation programmes must attempt to reconcile livelihood security with wildlife protection through creative zonations and by adding new protected area (PA) categories in consultation with local communities, such as inviolate core conservation buffer, community buffer and multiple use areas.

Amendments have been made in 2003 to the Wildlife (Protection) Act, 1972 so that the state governments can declare areas adjoining national parks and sanctuaries as ‘conservation reserves’. These conservation reserves will also have advisory committees with government officials, NGOs and local communities as its members. Similarly, on the voluntary request of local communities or individuals, the state government can notify land owned by these communities or individuals as ‘community reserves’ which will be managed through a managing committee comprising of representatives of village panchayats.

 

The Wildlife Conservation Strategy, 2002 approved by the National Board for Wildlife and the central government in 2002 states: (a) Protecting the interests of the poor and tribals living around protected areas should be handled sensitively and with maximum participation of the affected people; they should have access to the minor forest produce in the forest outside of national parks and sanctuaries. Employment and means generation for these people is crucial for maintaining symbiosis between the forests, wildlife and the people should be encouraged to take up afforestation and conservation in new areas. (b) No diversion of forest land for non-forest purposes from critical and ecologically fragile wildlife habitat should be permitted. (c) The settlement of rights in national parks and sanctuaries should not be used to exclude or reduce the areas that are crucial and an integral part of the wildlife habitat. (d) Every protected area should be managed by the forest officers trained in wildlife management; and (e) Wildlife conservation is too important a task to be treated lightly or ritualistically.

It will thus be seen that the existing provisions in the guidelines on ‘tribal-forest interface, 1990’ with regard to encroachments, settlement of land and other rights to tribals, scheduled castes and other forest dwellers are comprehensive and cover most of the forest rights as incorporated in the chapter on ‘Forest Rights’ in the proposed new draft bill. The approach highlighted in the National Wildlife Action Plan, 2002-2016, the Wildlife Conservation Strategy, 2002 and the amendments in 2003 in the Wild Life (Protection) Act, 1972, only reiterate the principles enunciated in the policy guidelines on ‘tribal-forest interface’, September, 1990. One wonders why activists did not raise a hue and cry for the implementation of these guidelines that have been in existence since 1990. The new bill, in so far as it relates to forest rights, is in these circumstances redundant and unnecessary.

 

The clauses in the new bill in the chapter on the ‘Rights of Forest Dwelling Scheduled Tribes’ go totally against the basic tenets of protection and conservation of forests and wildlife. In particular, the entitlement of forest land to the extent of two and a half hectares per nucleus family and that no member of the forest dwellers, scheduled castes and scheduled tribes shall be evicted or removed from the forest land under his occupation till the recognition and verification procedure is complete, are classic prescriptions for the destruction of forests. The nucleus family can also continuously keep enlarging as children become older and thereby will generate increased demand for forest land. Even the cut-off date 25.10.1980 can be altered by the central government through a simple gazette notification.

The forests are for the present and future generations and are to be enjoyed by the entire community. The forest land should necessarily be recognized as a community resource and not as a resource available for distribution to individuals. The ownership right must be community based. The privatization of forests also goes against the public trust doctrine enunciated by the Supreme Court. Therefore, instead of regularizing the land in favour of encroachers, the entire land should be earmarked in favour of the local community to be managed under joint forest management (JFM) principles. This is not impossible as 28 states have already adopted JFM and there are 84,632 JFM communities covering an area of 17.33 million hectares. A total of 83,84,788 families are involved, the break-up being 27,29,433 (32.55%) scheduled tribes, 15,83,078 (18.80%) scheduled castes and rest 40,72,277 (48.56%) general. The target is to cover all the 1.73 lakh villages on the fringe of the forests during the tenth five year plan. The involvement of village communities has to be on a ‘care and share’ basis. They have to be motivated and empowered to be able to contribute towards the protection and improvement of forests and also ensure sustainable withdrawal and equitable distribution of forest produce amongst themselves.

 

In the new bill the gram sabha has been fully empowered to determine the extent of forest rights to the inhabitants. The penalties for an offence are token and thus not a deterrent. Further, knowing the way the government system functions, the various committees proposed in the draft bill will find it impossible to undo the damage caused by the initial action of the gram sabha. It will also be too much to expect the forest right holders to cooperate with the emasculated government machinery to protect forests, wildlife and biodiversity. Private ownership in place of community ownership of forests will see the ascendancy of a land and timber mafia via a gram sabha drunk with power.

 

The problems of man-animal conflict in reserve forests, protected areas, sanctuaries and national parks are well-known. We must be living in a make-believe world to think that the tribals, as other dwellers, can coexist with wildlife. Tribals, forests and wildlife cannot coexist in a situation where both human and cattle population are rising. There are far too many internal contradictions. Wildlife flourishes where there is no disturbance, good protection, adequate prey-base, and plenty of water. Experience the world over and in the successful national parks and sanctuaries, protected areas and reserve forests has established this. The practical solution here would be to identify revenue lands, and degraded forest lands where absolutely unavoidable, and relocate the forest inhabitants from national parks and sanctuaries. The state and central governments have to prioritize and find finance for such relocation/rehabilitation packages. These funds should be earmarked so that no diversion for non-forestry purposes takes place.

The Supreme Court’s ban on dereservation of forests, national parks and sanctuaries and regularization of encroachments, and the stay on the operation of the guidelines dated 5.2.2004 of MoEF, shows the court’s concern on the illegal felling of forests and destruction of wildlife and consequential effect on ecological and food security. Against this background, the draft bill armed with provisions which militate against the provisions in the India Forest Act, 1927, Wildlife (Protection) Act, 1972, and the Forest (Conservation) Act, 1980 would have overriding powers and could make the existing acts ineffective and thereby create a vacuum in the management of forests. The bill brazenly attempts to legalise encroachments as also circumvent the various orders of the Supreme Court. It also envisages denotification of extensive areas of forest lands with all the consequential implications.

 

There is, however, no reason why the various issues cannot be sorted out within the framework of existing laws, guidelines, National Wildlife Action Plan 2002-2016, and Wildlife Conservation Strategy 2002. There should be community-based ownership rights for the forest dwellers. This should be followed up with heavy investment in afforestation. Encroachments prior to 25.11.1980 may be regularized but in favour of communities instead of individuals. The management of forests should be on the lines of JFM. The national parks and sanctuaries should invariably remain outside the purview of any relaxation in the forest policy. The habitations should be relocated outside the national parks and sanctuaries in a time-bound manner but after drawing up a suitable rehabilitation package and giving such proposals the high priority they deserve in the overall scheme of things.

Ultimately the long term survival of forests and wildlife will depend on the single-most important factor, namely secure protected areas. The draft bill that we are so assiduously planning to legislate, if given effect to, would be the biggest man-made ecological disaster in post-independence India, a case of laws being framed to ensure that the future generations shall see no forests and wildlife. In short, there is no need for the proposed new bill.