‘What does the forest bear?

Resin, timber and foreign exchange,

so said the forest officer.

The women instantly replied,

with their own slogan.

What does the forest bear?

Soil, water and pure air

That are the basis of human life.’

– A slogan from the Chipko Movement.

THE present ecological crisis is basically a result of conflict between greed and need, luxury and survival, growth and sustainable development. The governments, particularly those in the developing countries and more specifically India, are caught in this dilemma. They attempt to reconcile the two conflicts by enacting more laws and policy resolutions that deal with slogans and symptoms, ignoring the root causes. This game of running with the hare and hunting with the hound cannot go on for long.

The history of forest legislation in India and the resultant plight of tribal and other forest dwelling communities highlights this conflict which needs urgent and effective solution.

Contrary to the general belief that the regulation of forests started during British rule, it is now accepted that even earlier customary rules regulated the use of forests. Certain types of trees were regarded as sacred and never cut. Certain areas under forest were regarded as God’s groves (Devaraya) and not even deadwood and leaves were taken out from these areas. Even today, some such areas in their natural condition are found in different parts of the country, though their condition is rapidly worsening.1

Devoid of good forests in England, the British realised the commercial value of Indian forests and tried to establish rigid control over them. We can trace the beginnings of a systematic forest policy to 1855 when the Governor General, Lord Dalhousie, issued a memorandum on forest conservation called the charter of Indian forests. He suggested that teak timber should be retained as state property and its trade strictly regulated.

In 1856, Dietrich Brandis, a German botanist, was appointed as the first Inspector General of Forests. The Forest Department was organised and the first forest act was enacted under his guidance. Brandis made an inventory of trees in India and classified them.

 

 

The first act for the regulation of forests was passed in 1865. It empowered the government to declare any land covered with trees or brushwood as government forest and to make rules to manage them. The act was applicable only to the forests in control of the government and did not cover private forests. It made no provision regarding the rights of the users.2

The Act of 1865 was replaced by a more comprehensive Indian Forest Act of 1878. Forests were divided into reserve forests, protected forests and village forests. Several restrictions were imposed upon the people’s rights over forest land and produce in the protected and reserved forests. The act empowered the local government to levy duty on timber produced in British India or brought from any place beyond the frontier of British India, thus encouraging them to earn revenue from forests.

The Indian Forest Act of 1878 radically changed the nature of common property and made it state property. According to Baden-Powell, ‘The right of government to all uncultivated, unappropriated land is the basis on which the Indian forest law proceeds.’ This was only partially correct as a number of lands taken over by government were appropriated and used by tribal communities, though this was not legally recorded. These rights of people over forest lands and produce were later regarded as concessions.

 

 

The government announced its forest policy by a resolution on 19 October 1894. The policy emphasized state control over forests and the need to exploit forests for augmenting state revenue. The Indian Forest Act of 1927 replaced the earlier Act of 1878. This act embodied all the major provisions of the earlier act, extending it to include those relating to the duty on timber. The act is still in force together with several amendments made by state governments. The preamble states that the act seeks to consolidate the law relating to the transit of forest produce and the duty leviable on timber and other forest produce. Thus, there is a clear emphasis on the revenue yielding aspect of forests.

The Government of India Act, 1935, created a dual system of government by setting up provincial legislatures and assigning certain subjects to them, of which forests was one. Thereafter, the provincial governments made several amendments to the Indian Forest Act of 1927. In short, during British rule, the Department of Forest was organised, a systematic inventory of trees made, customary rights of people over forest land and produce curtailed and transformed into concessions to be enjoyed at the will of the forest officials and, most important, forests became a major source of revenue for the government.

 

 

After Independence, the Constitution of India adopted a number of provisions from the Government of India Act of 1935 and retained forest as a state subject in the 7th Schedule. The National Forest Policy Resolution adopted by the government in 1952, emphasised that the forest policy should be based on paramount national needs. For the first time the resolution emphasized the ecological and social aspects of forest management, giving secondary importance to the needs of commerce, industry and revenue. The resolution did not call for any change in the forest law and remained only a pious declaration.

The Ministry of Forest was originally a part of the Ministry of Agriculture and naturally the National Commission on Agriculture treated it as such. The commission’s report covered forests in the 9th part of its multi-volume report.3 While mentioning that the basic objectives of planned development in India were removal of poverty, attainment of self-reliance and maximizing employment and production, particularly of goods and services of mass consumption, it advocated commercialization of forests with complete disregard for the sustenance of adivasi and other forest dwelling communities. It asserted that ‘production of industrial wood has to be the raison d’ etre for the existence of forest’ (p. 32-33).

Its commercial bias was evident in its a statement that, ‘free supply of forest produce to the rural population and their rights and privileges have brought destruction to the forests and so it is necessary to reverse the process. The rural people have not contributed much towards the maintenance or regeneration of the forests. Having over-exploited the resources they cannot in all fairness expect that somebody else will take the trouble of providing them with forest produce free of charge’ (p. 25).

The commission recommended that the revised national forest policy should be based on important needs of the country. All forest lands should be classified into protection forests, production forests and social forests. It gave the highest priority to production forests and the lowest priority to social forests. The object of forest management should be that ‘each hectare of forest land should be in a position to yield a net income of many more times than is being obtained at present.’ It recommended enactment of a revised all India forest act.

 

 

As mentioned earlier, the subject of forests was included in the state list in the 7th Schedule of the Constitution (item 19). During the Emergency, the subject was transferred from the state list to the concurrent list through the 42nd Amendment to the Constitution (item 17 A). After the transfer of forests from the state list to the concurrent list, the Government of India promulgated the Forest (Conservation) Ordinance on 25 October 1980 prohibiting the state governments from allowing the use of forest lands for any other purpose without the approval of the central government. The ordinance was later passed as an Act (no. 69 of 1980). By a later amendment in 1988, state governments were prohibited from assigning, by way of lease or otherwise, any forest land or any portion thereof, to any private person or authority not owned, managed or controlled by government without previous sanction of the central government.

Based on the recommendations of the National Commission on Agriculture, the Ministry of Agriculture prepared a draft forest bill to be presented to Parliament. It placed severe restrictions on the collection and use of forest produce by the people in and around the vicinity of forests. It also gave forest officials wide powers of arrest and seizure of property, even on the suspicion of committing an offence. The draft was widely discussed but the government did not present the bill to Parliament.4

 

 

In 1985, the Forest Department was shifted from the Ministry of Agriculture to the Ministry of Environment and Forests. This helped to shift the emphasis from revenue to environmental concerns. In December 1988, the Parliament passed a new forest policy resolution more or less rejecting the recommendations of the National Commission on Agriculture. The resolution stressed the welfare of forest dwelling communities as a major objective of the forest policy, and categorically stated that the life of tribals and other poor living within and near forests revolves around forests and that the rights and the concessions enjoyed by them should be fully protected. Their domestic requirements of fuelwood, fodder, minor forest produce and construction timber should be the first charge on forest produce. However, while the resolution adopted a pro-tribal policy, the old Act of 1927 with all the subsequent amendments remained unchanged.5

In 1994, the MoEF prepared a draft of a new bill called the Conservation of Forest and Natural Ecosystems Bill to replace the Indian Forest Act of 1927. The draft generated a lot of debate. Many voluntary organisations prepared an alternate draft that was submitted to the ministry.6

The bill has still to be presented to Parliament; the old Indian Forest Act of 1927 with subsequent amendments, continues to be in operation.

 

 

Following a successful experiment in joint forestry in West Bengal, the Government of India decided to adopt the policy of joint forest management.

On 1 June 1999 the Secretary, MoEF, issued a circular to the state and UT forest secretaries on the need for involving village communities and voluntary agencies for regeneration of degraded forest lands. The circular lays down guidelines for giving usufructary benefit to the village communities living close to the forest land so as to ensure their participation in the afforestation programme. It clearly states that no ownership of lease rights are to be given to the beneficiaries or NGOs. The beneficiaries should be given usufructs like grasses, lops and tops of branches and minor forest produce. They can also be given a portion of proceeds from the sale of trees on maturing, on the terms and conditions decided by the state/UT governments.

This was the first departure from the old policy. Following this, thousands of forest protection committees came into existence in different states and the joint ventures continue. It has been noticed that the success of these ventures depend mainly on the attitude and behaviour of forest officials at all levels.

Following the 73rd Amendment to the Constitution and the recommendation of the Bhuria Committee appointed by the government and the Panchayat Raj (extension to the scheduled areas) Act of 1996, several states have made provisions for panchayat raj institutions in the scheduled areas, giving them wide powers of control over the natural resources including land and forest produce. However, other state governments have tried to curtail the rights of these panchayats. For example, in the Maharashtra Act, apta, tendu leaf and bamboo have been omitted from the list of minor forest produce.

 

 

It is necessary to briefly describe the areas of conflict between the forest departments and tribals and other forest dwelling communities living within and near forests.

Encroachments on forest lands: A number of lands under the jurisdiction of the FD are in actual possession of the people. Such occupancy, called encroachments, have been regularized from time to time in different states. However, the orders of regularisation were never properly implemented by the forest departments which were reluctant to part with lands under their jurisdiction.7 The extent of such occupied forest lands varies from state to state and is between 10 to 30% of the total forest land. While there is no bar to the regularisation orders issued before October 1980 when the Forest (Conservation) Ordinance was promulgated, it is not possible to issue any new orders in the future.

Attempts to evict tribal households from forests and the removal of encroachments have led to severe and at times violent clashes among the people and the police and forest officials. Though the law is on the side of the officials, tribal households have no other source of livelihood and refuse to vacate these areas inspite of severe oppression.

The problem defies solution, as increasing numbers of tribal households are displaced due to construction of dams and defence projects. Further, industrial complexes, in both the public and private sectors, are entering forest areas for habitation and cultivation. It is a general experience that rehabilitation plans, if any, are poorly implemented, particularly in tribal areas.

 

 

Consumption of forest produce by tribal households: Tribal communities, particularly those living within and near forests collect a number of commodities for self-consumption. These include fuelwood, fodder, timber for construction and repair of houses, herbal medicinal plants and food items like wild fruit and vegetables, fish and small game. In the recent past, deforestation has adversely affected the supply of these items. In addition, plantations of teak and other revenue yielding species have reduced the natural forests that provided items for self-consumption.

Minor forest produce: What the FD calls minor produce includes produce that can be obtained without the felling of trees. For the scheduled tribes, however, it is the major avenue for employment and income. It is estimated that the non-wood forest produce provides employment for 28-30 million person years and the potential is upto 40 million person years.8

However, state governments have imposed several restrictions on the collection of some items of non-wood forest produce like tendu leaf. Rapid deforestation too is reducing the stock of several items of non-wood forest produce.

 

 

Development projects: Tribal areas are deficient in basic infrastructure facilities like roads, electricity and small dams. While big projects get central government clearance to work on forest lands, small projects like approach roads, laying of electricity poles or pipes to carry water are often delayed or rejected for want of sanction that became necessary after the passing of the Forest (Conservation) Act in 1980, in particular the amendment to the act in 1988. This has adversely affected the implementation of such projects in tribal areas.

Forest villages: After the enforcement of the Indian Forest Act in 1927, the government declared all lands not claimed by private individuals and agencies as forest lands and classified them into reserve, protected and village forests. To attract labour to work in forestry related activities, the governments gave lands to households for cultivation and also promised jobs. A number of forest villages were established. The lands allotted for cultivation were on a purely temporary basis and forest officials were to look after the administration of these villages.

After Independence, the inhabitants of forest villages realised that most villages lacked infrastructure facilities; nor could they get loans for development of agriculture as they had no title over the land.

Around 1980, the government decided to convert forest villages into revenue villages. This was done in many states. However, not all the forest villages have been converted into revenue villages. In some villages, land has been given on a 15 year lease to enable the holders to obtain loans from banks.9 Residents have agitated for the conversion of these villages into revenue villages. This conflict is particularly acute in Madhya Pradesh.

 

 

Protected areas: About 4.5% of the total land in the country is covered under protected areas, classified into national parks, wildlife sanctuaries and protected areas. The Wildlife (Protection) Act of 1972 provided for the administration of these areas. The act places several restrictions on the residents of villages in these areas. Efforts are also being made to relocate these villages outside such areas. These efforts have met with stiff resistance from the residents and violent conflicts have taken place in many places. Under pressure from the World Bank and the environment protection fund agencies, the government has tightened the restrictions on the hunting of animals included in the list of wildlife species, as also a number of economic activities. Consequently, development projects in these areas have been shelved.

Aware of these agitations the MoEF appointed an inter-state committee to review the act and other related laws. Voluntary organisations working with the people in protected areas have prepared an alternate draft and have made several suggestions to amend the act. The committee submitted its report to the ministry in 1997. However, the bill incorporating the committee’s recommendations has still to be presented to Parliament. Tribal communities and others living in protected areas perceive themselves as victims of the act and resist restrictions imposed on them and in particular the attempts to evict them. This has resulted in tension and violent clashes between the residents and the police.

 

 

At this stage it is necessary to clarify terms like scheduled tribes and scheduled areas. Provisions relating to the administration of scheduled areas and scheduled tribes are included in the 5th Schedule to the Constitution. Article 342 empowers the President to specify the tribes, tribal communities or groups within tribes or tribal communities which shall be deemed to be scheduled tribes in relation to the state or union territory as the case may be. However, changes in the first list declared by the President can be made only by an act of Parliament. The first list was issued in 1950 and was later modified in 1956 and 1976.

Scheduled areas are those specified by the President on the recommendation of the Governor of a state or union territory. The Parliament can by law amend the schedule. Though it can be presumed that the scheduled areas will be those inhabited mainly by members of the scheduled tribes, this is not always so. The list of scheduled areas has also been amended from time to time. There are no scheduled areas in states like Tamil Nadu, Kerala and Karnataka though there are scheduled tribes in these states. Even in states where scheduled areas have been notified, there are many areas with a predominant tribal population that are not so notified. Less than 15% of the tribal population in areas not covered by the 5th Schedule lives in scheduled areas.

The 6th Schedule has made provisions for the administration of states with a large tribal population. It is necessary to point out that the tribal population of these states is less than 10% of the total scheduled tribe population of the country. The impact of forest related laws described in this paper relates mainly to the tribal population in states not included in the 6th Schedule. It is also not limited to the scheduled tribe population in the scheduled areas. It highlights the impact of laws on the scheduled tribe population all over the country. The impact on the tribal population in states included in the 6th Schedule is not as severe as those in other states mainly due to the composition of the governments in these states. However, there is no reason to believe that the tribal population in the scheduled areas is less affected by forest related laws than in the non-scheduled areas.

 

 

Tribal communities have been ignored and even oppressed by forest related laws since their enactment during British rule. Their sorry plight continued after Independence, especially after the enactment of the Wildlife (Protection) Act and the Forest Conservation Act. The adoption of the National Forest Policy Resolution, 1988 provided a ray of hope. The adoption of joint forest management further fortified this hope. However, there has been no change in the laws to bring them in conformity with the resolution.

The government must take immediate steps to replace the colonial forest laws and to amend the Wildlife (Protection) Act. Unless this is done, the plight of tribal communities may worsen, leading to conflicts and violence. One hopes that the government will move before it is too late.

 

Footnotes:

1. Mahdhav Gadgil and V.D. Vartak, Sacred Groves in Maharashtra: An Inventory, in S.K. Jain (ed), Glimpses of Indian Ethnobo-tany, Oxford University Press, Bombay, 1981.

2. B.H. Baden Powell, Forest Law, Bradbury Agnaw and Co., London, 1893, p. 225.

3. Report of the National Commission on Agriculture, Part IX, Forestry, Ministry of Agriculture, Government of India, New Delhi, 1976.

4. Sharad Kulkarni, ‘Towards a Social Forest Policy’, Economic and Political Weekly 18(6), 5 February 1983, pp. 191-196.

5. Sharad Kulkarni, ‘Forest Legislation and Tribals: Comments on Forest Policy Resolution’, Economic and Political Weekly 22(50), 12 December 1987, pp. 2143-48.

6. Walter Fernandes (ed), Drafting People’s Forest Bill: The Forest Dweller – Social Activist Alternative, Indian Social Institute, New Delhi, 1996.

S.R. Hiremath, Sadanand Kanwalli and Sharad Kulkarni (eds), All About Draft Forest Bill and Forest Lands, Samaj Parivartan Samudaya, Dharwad, 1994.

7. Sharad Kulkarni, ‘Encroachment on Forest lands: The Experience in Maharashtra’, Economic and Political Weekly 14(45), 19 Nov-ember 1979, pp. 1846-49.

8. Amar Guleria and Tirath Gupta, Nonwood Forest Products in India: Economic Poten-tials, Oxford and IBH Pub. Co., New Delhi, 1982, pp. 133-34.

9. Letter No. F5 – 52/96/10/3 dated 15.3.1996 reproduced in Anil Garg, Bhoomihino ke liye padyatra ke sandarbh (Hindi) Satpuda Kisan evam Mazdoor Kalyan Samitee, (M.P.) December 1999. p. 24.