Who is encroaching on whose land?

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UNKNOWN to the country at large, the Supreme Court has been hearing a case (Writ Petition 202 of 1995, T.N. Godavarman Thirumulpad vs. Union of India) for the last seven years. This started off as a PIL by T.N. Godavarman, an ex-estate owner in Gudalur, Tamil Nadu, against illicit felling of timber from forests nurtured by his family for generations which have since been taken over by the government. The Supreme Court extended the sweep of the petition to forests in every nook and corner of the country, ordering felling bans excepting in accordance with ‘Working Plans’ prepared by state forest departments. The meaning of ‘forest’ is to be as per dictionary definition irrespective of ownership and court orders are to apply to all lands entered in any government record as ‘forest’. The irony of this judicial environmental activism has been a further centralisation of power over the country’s forest lands in the hands of the same bureaucracy against whose mismanagement the original PIL was filed. This has seriously impacted millions of forest dwellers’ customary as well as legal rights to forest lands and resources for their very survival. One indication of the importance of forest lands in people’s lives is the fact that 800 interlocutory applications (IAs) have been filed in the case, ranging from the North East to the Andamans to Madhya Pradesh.

The most threatening development for impoverished tribal and other forest dwellers in the ongoing court proceedings is the recent emphasis on evicting all ‘encroachers’ from forest lands. On 23.11.01, the Solicitor General and Amicus Curiae in the case, Harish Salve filed IA 703 in the Godavarman case regarding encroachments. On 18.02.02, the SC directed the Chief Secretaries of Orissa, West Bengal, Karnataka, Tamil Nadu, Assam, Maharashtra, Madhya Pradesh, Chattisgarh and Kerala to file a reply to this IA in relation to the steps required to be taken by them to prevent further encroachment of forest land and to indicate the steps already taken to clear earlier encroachments.

Although no eviction orders have yet been issued by the SC in IA 703, the Ministry of Environment and Forests (MoEF) used the above references in the court proceedings to issue a directive to all states/Union Territories on 3 May 2002, to summarily evict ‘all illegal encroachment of forestlands’ before 30 September 2002. This order totally ignores a framework for resolution of disputes related to forest land between tribal people and the state which had been worked out in 1991 by the Union government based on the recommendations of the then Commissioner, Scheduled Castes and Scheduled Tribes, but remains unimplemented. A set of six circulars were issued on 18 September 1990, in this respect.1 The current directive of the MoEF only refers to one of these circulars dealing with encroachments on forest land but ignores the other circulars on crucial issues such as ‘Review of disputed claims over forest land arising out of forest settlement’2 and ‘Disputes regarding pattas/leases/grants involving forest land’, which have a considerable bearing on deciding what really constitutes an ‘encroachment’ and what does not. In the absence of implementation of the process outlined in these guidelines, the current order of the MoEF if implemented would mean that lakhs of tribals/adivasis and other forest dependent communities would be displaced threatening their very existence.

Further, by a notification dated 3 June 2002, a Central Empowered Committee has been constituted under orders of the Supreme Court. This committee, consisting of three officials from the MoEF and two non-government wildlife conservationists (the criteria for selecting the members who are to have a five year tenure are unclear), has submitted its recommendations endorsing the MoEF circular requiring the removal of all post-1980 ‘encroachments’ from forests within a short time span. These continue to ignore the unresolved issues of unsettled/disputed claim over forest land mentioned above. If accepted, these recommendations will become orders of the court inviting contempt of court proceedings for non-compliance. The states have been given time till the next hearing on October 22 to raise objections to these recommendations. A lack of response from any state/UT will be taken as acceptance of the Empowered Committee’s recommendations by them.

Implementation of the CEC recommendations will have drastic consequences for an estimated 1.5 million already marginalised and impoverished adivasi households in the country. The majority of them lack legal land titles due to deficiencies in the survey and settlement operations by both Forest and Revenue Departments at the time their lands were declared state property. Reports from Maharashtra suggest that evictions in the state have already started, although they violate the MoEF’s own earlier circulars of 1990 based on observations of the Commissioner, SCs and STs, examined by a Committee of Secretaries and approved by the Cabinet.

Issues of concern – The definition of ‘forests’ and ‘encroachment’: The court is proceeding on the assumption that all lands notified as state-owned forests, entered in any government record as forests, ‘deemed’ forests, including unclassed forests (a term which does not find any mention in the Indian Forest Act) or even areas included in estimates of ‘forest cover’ by the Forest Survey of India based on satellite imagery, need to be protected and managed only by government forest departments/corporations in accordance with ‘scientific’ ‘working’ plans. The contradictions in this approach become evident from the fact that the Forest Survey of India includes all fallow lands under shifting cultivation in the eastern and north eastern states in its estimates of ‘forest cover’. Consequently, these have all been brought under the ambit of the court’s judgement.

This is a grossly erroneous depiction of land use as these lands are not forest but cultivated lands, albeit under rotational rather than settled cultivation. It needs to be noted that the FAO does not include shifting cultivation lands in its assessments of forest cover in different countries, categorizing them as forest fallows instead. Shifting cultivation is an integral component of the lives, livelihoods and social organisation of tribal and indigenous communities and the rich cultural diversity and indigenous biodiversity knowledge associated with it. Transferring control over the management of these communal lands to forest departments in the North East represents a major violation of the rights enjoyed by indigenous communities in the region under Schedule VI of the Constitution. In other states, shifting cultivation lands have been declared reserve or protected forests, often treating the original cultivators as forest ‘encroachers’.

In many other states, large areas of erstwhile common lands, including village grazing lands, community forests, natural grasslands and alpine pastures, have been declared state owned forests through blanket notifications. While many of these never were natural ‘forests’ because of which their legal classification neither reflects their functional or ecological status, confusion has been confounded due to declarations of state ownership not having been followed up by clear demarcation on the ground after legally required surveys and settlement of existing rights. Land records in M.P., for example, are in a dismal condition and the land rights of the majority of Orissa’s seven million adivasis living in hilly areas, in all categories of forest and revenue lands, are yet to be settled. The enactment of the Forest Conservation Act in 1980 has greatly complicated the process of settling tribal rights.

When the government itself has failed to demarcate the boundaries of state owned forests on the ground after proper settlement of existing rights for decades, it is a travesty of justice to label forest dwellers and cultivators of such lands ‘encroachers’ due to their inability to produce ‘a first offence report under a forest act’ pre-dating the FCA, 1980. The recommendation to evict all those unable to produce such ‘first offense’ reports flies in the face of the framework for resolving conflicts concerning forest lands prepared by the Commissioner for Scheduled Castes and Scheduled Tribes in 1991.3

The contention here is not that encroachment on forest lands by powerful vested interests is not a serious issue; it is, and must be dealt with. But the real forest destroyers are dishonest politicians, land mafias, industrial and urban encroachers, and of course ‘legalised’ destroyers in the name of development projects and mining. To label adivasi communities that have traditionally and customarily cultivated lands but do not have the title deeds to prove this as ‘encroachers’, and to club them in the same category as powerful vested interests who have indeed eaten up our forests, is an unjust and cruel step to take. The court must be made aware of the distinction between these categories.

Tribal rights, livelihoods and governance: The Constitution of India provides specific protection to tribal rights over their customary resources as well as their self-governing institutions, particularly in Schedule V and Schedule VI areas. There are special constitutional authorities vested with the responsibility of enforcing these provisions under the oversight of the President of India. The National Forest Policy, 1988, itself has a separate section on ‘Tribal people and forests’ which states that: ‘having regard to the symbiotic relationship between the tribal people and forests, a primary task of all agencies responsible for forest management, including the forest development corporations should be to associate the tribal people closely in the protection, regeneration and development of forests as well as to provide gainful employment to people living in and around the forest.’ The section on ‘rights and concessions’ has focused on ‘full protection’ of the rights of tribals. The Government of India is also a signatory to the Convention on Biological Diversity which requires the protection of indigenous knowledge and rights of indigenous communities.

Remarkably, the Supreme Court has overlooked all these dimensions with its environmental activism governed by a vision of ‘forests’ existing in isolation and out of context. The court’s definition of ‘forest’ itself, and the assumption that forests are best managed by state bureaucracies, is highly problematic given the long history of forest degradation under state control and serious conflicts with forest dwelling tribal and other communities due to their being denied customary access to forest resources for survival. It does not seem to have been brought to the notice of the court that in states like Orissa and Jharkhand, villagers on their own initiative are regenerating and protecting their forests, often from corrupt forest officials and timber mafias, in several thousand villages. The MoEF itself boasts of the success of its JFM programme in partnership with local villagers and most MoEF official documents, including its report prepared for the recently held World Summit on Sustainable Development eulogises people’s empowerment and community forest management.

The court orders and CEC recommendations also fly in the face of decentralization of governance mandated by the 73rd constitutional amendment, and in particular the Provisions of the Extension of Panchayats to Scheduled Areas Act, 1996 (PESA) which empowers gram sabhas in Schedule V areas to manage their community resources in accordance with their traditions and customs. The court’s touching faith in ‘scientific’ forest management by forest departments in accordance with ‘working’ plans prepared by them is in total contravention to the spirit of PESA as well as the 1988 forest policy which requires that forests be managed for ecological and livelihood functions and not be ‘worked’ for generating revenue.

This is indeed ironical, for ecological experts have since long shown how ‘scientific’ forestry is ecologically damaging, unsustainable and destructive of biodiversity. Ninety per cent of the country’s natural grassland ecosystems, for example, have been destroyed either due to being treated as ‘blanks’ needing ‘afforestation’ by forest departments or as ‘wastelands’ available for other uses by revenue departments. The constitutionally protected community rights to self governance in accordance with their traditions and customs in Schedule V and VI areas do not find even a cursory mention in any of the court’s deliberations or the CEC’s recommendations for evicting all encroachers.

On the contrary, the Empowered Committee and the Ministry of Environment and Forests appear to be targeting poor tribal families who are powerless to resist. In a completely one-sided manner, the Empowered Committee attributes encroachment to among other things, ‘misuse of the SC/ST Atrocities Act, and the failure to provide forest officers on anti-encroachment drives with a strong police contingent and magistrate (necessary if firing is to be ordered).’ Both these suggest the main target are tribals and dalits.

The composition of the central empowered committee: Many of the above thrusts seem to be an outcome of the membership of the Empowered Committee set up by the court consisting entirely of wildlife conservationists who have traditionally prioritized wildlife over people, and officers of the Ministry of Environment and Forests, with their strong inclination to enlarge the territory under forest department control. There is no representative of tribal people, the Ministry of Tribal Affairs or the Constitutional Authority of the Commissioner, Scheduled Castes and Scheduled Tribes. The committee is empowered to make recommendations to the court on any of the interlocutory applications and also to monitor the orders passed by the court.

In Interlocutory Application 703 of 2001 filed by Harish Salve, the committee invited representatives from the forest and revenue departments of the concerned eight states. Only the Chief Secretary of Andamans and Nicobar turned up. For the other seven states (Orissa, West Bengal, Karnataka, Tamil Nadu, Assam, Maharashtra, Madhya Pradesh, Chhattisgarh and Kerala), the forest departments were the sole voice. No tribal representatives were invited. Inevitably, the end product is a set of draconian recommendations that reflect only an authoritarian forester’s viewpoint. If the Supreme Court accepts the Empowered Committee’s recommendations on forest evictions, this will amount to an ex-parte injunction against tribal communities all over India on a matter that centrally affects their lives and livelihoods without even giving them an opportunity to be heard.

There is an urgent need to balance the CEC’s membership with an equally strong orientation towards equity, social justice and the democratic rights of adivasi and other forest dwelling communities. The damaging conflicts generated by the existing exclusionary approach to protected area management are well known. The CEC recommendations imply extending the same approach to all ‘forest’ lands of the country representing almost one fourth of its total geographical area.

What few people realize is that the forest department is the single largest landlord controlling about 22 per cent of the country’s land area. While the popular impression that has been created is that large tracts of forest land are being lost to encroachment and being diverted to other uses, the truth is that land under the forest department’s control increased by 26 million hectares between 1951 and 1988 (from 41 million hectares to 67 million hectares) compared to the land under agriculture increasing by 24 million hectares during the same period. Both these land use categories expanded at the cost of the common lands used by rural communities for supporting a wide diversity of livelihood systems of the landless, small and marginal farmers and pastoralists.

The quality of forest cover on government owned ‘forest’ land is of course another matter, and for that the forest departments have as much themselves to blame, with their history of management for ‘sustained yield of timber’ resulting in the substitution of natural forests by fast growing industrial plantations and commercial fellings. Between 1951 and 1979, the forest departments themselves raised industrial plantations by clear felling ‘economically less important forests’ over 3.33 million ha (FSI, 2000). The cumulative area of forest plantations raised by forest departments from 1951 to 1999 is 31.2 million ha (FSI, 2000). Had these survived, the country’s forest cover would not have been in the dismal condition that it is today.

Fortunately, The Chairman, SC/ST Commission, the Ministry of Tribal Affairs and several other civil society organisations have woken up to the implications of the ongoing court proceedings and are planning interventions to make the court realize the unbalanced approach it has been pursuing. No evictions of any forest dwellers should be initiated till unsettled and disputed claims have been dealt with through a transparent and democratic process and the court should restore decentralized decision making to legitimate authorities in different states instead of centralizing such powers in a handful of arbitrarily selected forest officers and conservationists. Similarly, instead of enabling state forest departments to become still larger (oppressive) landlords, the court needs to give equal attention to implementation of the Constitutional mandate for decentralization of governance by promoting devolution of forest management authority to self-governing gram sabhas on principles of socio-economic equity and ecological sustainability.

Madhu Sarin



1. Circular No. 13-1/90-FP of Government of India, Ministry of Environment & Forests, Department of Environment, Forests & Wildlife dated 18.9.90 addressed to the Secretaries of Forest Departments of all states/Union Territories. The six circulars under this were:

FP (1) Review of encroachments on forest land.

FP (2) Review of disputed claims over forest land arising out of forest settlement.

FP (3) Disputes regarding pattas/leases/grants involving forest land.

FP (4) Elimination of intermediaries and payment of fair wages to the labourers on forestry works.

FP (5) Conversion of forest villages into revenue villages and settlement of other old habitations.

FP (6) Payment of compensation for loss of life and property due to predation/ depradation by wild animals.

2. ‘Forest settlement’ refers to the ‘settlement of rights’ process followed by the government when it acquired forest land and notified them under various categories. The process involves conducting an inquiry into the rights (habitation, agriculture, use of forest resources etc.) exercised by people in or over the forest being notified and documenting them. For certain categories of forests the process also involved extinguishing these rights after giving compensation.

3. ‘Resolution of Conflicts concerning forest lands – adoption of a frame by Government of India’ , Dr. B.D. Sharma, Commissioner, Scheduled Castes and Scheduled Tribes, New Delhi, January 1991.


Kashmir: rough weather ahead

POWER. No we are not talking about purchasing power from Enron at an outrageous rate of Rs 2.80 from its Dabhol power plant in Maharashtra, but the impasse over who will eventually wrest the ‘power reigns’ in the state of Jammu and Kashmir. The stand-off, contrary to expectations, has shown no signs of ending. However, it is imperative to understand that neither the Congress nor the People’s Democratic Party (PDP) are in a position to form a government without the other, that is if the two parties are sincere about providing a ‘lasting and durable’ government. It is a matter of time before these two parties sort out their differences and form a government in the state.

As and when the ‘PDP-Congress’ combine takes over the mantle of governance in the state of J&K, federal democracy in India will be put to an ultimate test in a keen contest between the newly elected government in Srinagar and the BJP-led coalition at the Centre. The points of discord will be more than one, given the position of the combine, which many believe is diametrically opposite to the official ‘Kashmir policy’ of New Delhi. Not only that, there is also a deep divide between the Congress and the PDP, and it is imperative that the duo evolves a common policy ‘framework’ given the ideological and political fissures between the two parties.

The PDP is a derivative of the mainstream party, the Indian National Congress, and for many years Mufti Sayeed was perceived as the mainstay of that party in the Valley. However, given his political ideology after disengaging from the Congress, Mufti’s party is regarded in Indian political and diplomatic circles with unease for its pro-Hurriyat leanings. Among other issues, its description of the Kashmir problem as an ‘international dispute’ may become the major stumbling block in relations with New Delhi. Contrary to New Delhi’s position, it favours immediate resumption of the ‘dialogue process’ with Pakistan and the separatists, and disbandment of the controversial Special Operation Group (SOG) set up to fight militancy in the state.

The Centre-state relationship has been of paramount importance for the ruling elite in J&K, particularly when it comes to the regime completing its full tenure. The National Conference, the historical political party of Kashmir, has never successfully governed the state when at loggerheads with New Delhi. In the context of Centre-state relations, two historical agreements were put into place to evolve a mechanism to ensure smooth functioning: the Delhi Agreement of 24 July 1952, and the Kashmir Accord of 13 November 1974, and in both cases it was the Congress government at the Centre which signed these accords with the representatives of J&K. The Farooq Abdullah government, through its ‘autonomy resolution’ tried to undo the Delhi Agreement, but the Indian cabinet rejected the proposal.

The greatest triumph for Farooq Abdullah was his ability to complete his full-term in power, but to make it possible, he went into such an overdrive to lend an olive branch to New Delhi that he did not even press hard on the autonomy resolution. In return, he was rewarded with an unflinching prop up, notwithstanding the fact that J&K was in a state of anarchy, probably a fit case for the imposition of President’s rule under Article 356. What was Abdullah seniors’ greatest triumph, eventually contributed to his defeat in the recent elections.

The BJP as a party has had its share of setbacks in the elections, but with the Congress now taking over the mantle of governance from the National Conference, critics of the NDA government at the Centre point out that the BJP has acquired a vital weapon to checkmate the main opposition party, the Congress, facilitating its full term in office in return for its support to the Congress-PDP government. However, should the need arise in the event of the coalition combine (Congress-PDP) engaging in practices wherein they lend an olive branch to Pakistan or to the separatists – not in line with the official policy of New Delhi – the situation may assume turbulent dimensions. The Congress being from the mainstream of the Indian polity may also act as a deterrent to counter the covert and overt manoeuvres of the PDP, should the need arise.

The history of coalition politics is not new for the Congress party in the state. It had in the past supported Sheikh Abdullah when he took over as the Chief Minister in February 1975. However, two years later, it withdrew support to the Sheikh government. Subsequently, except for a brief period when the Janata Party government was in place in Delhi, the relations between the two (New Delhi-Srinagar) have remained at a low ebb. The Rajiv Gandhi-Farooq Abdullah Accord of 1986 paved the way for government formation in March 1987. However, that accord, made by the Congress to revive its sagging fortunes in the state, is seen by many as contributing to its poor performance in the subsequent elections.

The demand for decentralisation and devolution of more powers to J&K is going to gain momentum in the coming days with the PDP-Congress combine evolving a common minimum programme prior to entering into negotiations with New Delhi. The combine has also to undertake the complete revamp of the political and administrative machinery which had collapsed, characterizing joblessness, poverty, insensitivity, negligence, indifference, and so on. However, what has generated most interest in the politico-diplomatic circles is the stand Congress will take on the issue of devolution of more powers to the state and, whether in doing so, it will undo or undermine the ‘Delhi Agreement’ of 1952 and the ‘Kashmir Accord’ of 1974, both signed when the Congress government was at the helm in New Delhi.

The fact that the coalition has to take into account the aspirations of the independents and smaller parties like the CPI (M), Panther’s Party and others may, in all likelihood, compound the problems, given that they come from diverse backgrounds. Much depends eventually on the composition of this ‘third front’ within the coalition government. The will and commitment of the combine will also be tested to the hilt in negotiating the demand for devolution, something the BJP will not give into easily.

Kashmir, as all know, has not been handled properly and Delhi has repeatedly gone wrong in the past. It is essential that the Centre takes a more conciliatory approach towards the new regime in J&K, and provide it with all necessary support to bring peace to the violence-ravaged valley – even if this involves a few concessions here and there.

Romeet K. Watt