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Battling historical injustice: A case of evolving forest rights movements and forestry laws in India

New legislation is often brought as a corrective measure. ‘The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006’ (commonly referred to as FRA, 2006) was brought as an intervention to correct the ‘historical injustice’ faced by the tribals and other forest dwellers. FRA, 2006 is a transformative piece of legislation that takes into cognizance the exploitation and rights of indigenous people.

The tribals and forest dwellers continue to be ignored and exploited. On February 13, 2019, the Supreme Court directed the states to evict tribals and forest dwellers whose claims had been rejected under FRA. The order took no cognizance of the poor approval rate of the rights, which suggests how both state and vested groups are trying to snatch the rights of tribals and forest dwellers. The order was stayed on February 28, 2019, after the countrywide protests. Hence, it becomes important to engage with the subject deeply.

Tracing Historical Injustice in the forestry history of India

The ‘historical injustice’ which eventually found its place in the final Act is contentious because its origin remains contentious. From the British accounts, it appears that the tribals were already exploiting natural resources and forests; if it were not for their rule then the natural resources of India would have depleted. But there exists evidence that suggests that there existed an equilibrium between the indigenous people and forests before the British invasion. The primary ones being the tiny size of communities in the pre-colonial times which restricted the over-usage of natural resources. The tribals were not usually in the pursuit of profit; their economy was essentially non-market. Further, the concept of individual ownership of land didn’t exist and forests were community resources, managed collectively. Finally, the most crucial point was the sustainable use of resources by the tribals, which was ignored by future dispensations. Traditionally there was a practice of setting apart ‘sacred groves.‘ These sacred groves were never touched by an ax except when wood was used for the repair of religious buildings.

The British invasion altered this pattern to a great extent. Initially, the destruction started without the backing of law (1792-1870s). This phase was dominated for the most part by the external market forces, which appropriated the hitherto tribal-managed forest resources to be used for commercial purposes. But as soon as the British realized that this unabated destruction was not sustainable, they took the help of legal instruments to cement their monopoly over forests. First, through the Census, the Colonial state created a distinct category of ‘tribes‘ (perpetuating the myth that it’s a homogenous group), making laws specifically for them. They further cemented this belief by invoking forest laws claiming that a ‘scientific approach’ was needed for the conservation of natural resources. The subsequent Forest Acts of 1865, 1878, and 1927 curbed access to forests available to the local population by establishing a system of classification of forests into ‘reserved,’ ‘protected’, and ‘village’ forests. The uniting factor in these laws was that indigenous knowledge was side-lined altogether, and their culture was thought to be dangerous for the natural resources.

The post-colonial state of India continued with the same conception of forests and continued exploiting the rights of indigenous people. In the first phase which was driven by the modernist expansionist dream (1947- 1970) the interests of the indigenous people were side-lined for the larger ‘national need’. The forest policy of 1952 emphasized realizing the ‘maximum revenue’ of forests; the forests were classified as protected forests, national forests, village forests, and tree lands. While the first three were similar to the colonial conception, tree lands were the areas which though were outside the scope of the forest management but were necessary for the physical amelioration of the country. The rights of the tribals and forest dwellers, which were earlier classified as ‘rights and privileges, now came to be known as ‘rights and concessions’. It was perhaps due to the obligations brought by democracy that such change in language was required.

Like the colonial rulers, when the unabated exploitation became unviable, the Indian government shifted its focus to conservation. The two Acts in this respect are the ‘Wildlife Protection Act, 1972’ and the ‘Forest Conservation Act, 1980.’ The Wildlife Protection Act, 1972, made provisions to bring large forest areas under the protected area of ‘National Parks’ and ‘Wildlife Sanctuaries’ to make them human free, which led to widespread tribal displacement. The Forest Conservation Act, 1980 on the other hand, argued for a much larger central approach of forest management by bringing in the clause of ‘non-forest purposes’ where no state government or any authority could take decision related to de-reservation of forest land without taking central government permission. While the act sounded  like a welcoming change, it didn’t acknowledge the tribal knowledge of forest management, and also laid down the ‘procedure of forest clearance.’ These two Acts didn’t differentiate between external use and local use and stressed excessive control in the form of ’eminent domain’.

Evolving resistance movements and forest rights

Just like there is a continuity in the injustice faced by the indigenous people from colonial time to the post-colonial era, there is also a continuity in the resistance which has germinated in response to such injustice. Still, the one difference between the two is that resistance and social movements have evolved to a great extent, eventually leading to the emergence of pro-tribal legislation in India.

In the Colonial period, resistance movements were mostly violent and lacked coherence and a widespread reach. The famous ones were Chota Nagpur in 1893, in Bastar in 1910, in Guden-Rampa in 1879-1880 and again in 1922-1923, in Midnapur in 1920, and Adilabad in 1940. But these protests were met with force and were suppressed by the armed forces of the colonial government.

In the early post-colonial Indian state, the resistance and social movements in the discourse of forest rights emanated because of two reasons: one being mindless destruction of forests, and the other being the massive displacement of the original habitants from their historical habitats. The major ones were the protests against the Hirakud dam, the Chipko movement, the Narmada Bachao Andolan, etc. The one unifying thread in these movements was that all of them demanded a complete withdrawal of the state from their habitats. This phase also saw a new player in the form of commercial groups who entered with globalization, for instance, Vedanta Alumina Limited (VAL) which is a big commercial giant, proposed a project to mine the bauxite reserve of Niyamgiri hills. The movements in this phase evolved considerably from the colonial times, the first and foremost change in the movements being that they were well-orchestrated, at times even transcending national boundaries to garner support. Second, as Swain suggests, the structure and ethos of the democratic regime, as opposed to authoritarian regimes, are generally more responsive to protests, therefore, the protests in a democracy are more extensive and less violent. But the similar theme in both the phases was that they both demanded total state withdrawal from the forest areas.

The most recent phase of movements in the discourse of forest rights has resulted in progressive laws like FRA, 2006. The forest rights campaign was led by the ‘Campaign for Survival and Dignity (CSD)’ with many well-known groups as members, like the Bharat Jan Andolan, Adivasi Mukti Sangathan. In the most recent phase, the movements have become more accommodating in form, not arguing for a complete withdrawal of the state from forest areas but rather demanding a more sympathetic consideration of forest rights. The protests today are not against commercial forestry per se but instead built more on a broad set of economic and cultural demands such as better access to markets, access to forest produce and the recognition of the tribal way of living.

One of the outcomes of the increased political consciousness amongst tribals and forest dwellers—which culminated in nationwide campaigns and movements—was that the government started addressing their concerns. FRA, 2006 is indeed a direct result of such movements, but what preceded FRA, 2006 was exemplary and laid the foundation for FRA, 2006. Joint Forest Management (JFM), 1990 and Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA) were two pro-tribal policies that, although failed on many grounds, were still crucial for the forest rights discourse.

Forest Rights Act, 2006 and the way forward

FRA, 2006 is a paradigm shift in the forest rights discourse as it grants legal recognition to the forest rights of indigenous people. The three types of rights provided under the Act are land rights, use rights, and protection and conservation rights. But the Act is also criticized on various grounds ranging from its failure to build awareness among the communities about their rights to the lack of ensuring coordination between various laws in relation to FRA. But most importantly, doubts are raised on the implementation of the Act.

While the Act in its present form might appear like that, it would have acceptance from all sections of society as it is a corrective tool and aims to rectify the ills done to the indigenous people. Still, such an understanding is not holistic as it doesn’t take into account the plethora of opinions that exist around the Act, both in favor and against it.

The standpoint of the pro-act groups is that it is a step in undoing the historical injustice faced by the indigenous people and also takes into account the importance of tribal knowledge when it comes to managing forest resources. On the other hand, the critics of the Act argue that there is a possibility of land-grabbing by vested groups in this Act, they also argue about the destruction of already dwindling forest cover and highlight the already existing corrective measures for tribal justice.

I would once again reiterate that even though FRA, 2006 is a paradigm shift on its own, its mere celebration and veneration serve no purpose as the reality is more complicated than that. The emergence of FRA is complex. Systematic historical injustice and the parallel evolution of resistance movements led to the FRA, as we know it now. But that shouldn’t be taken as the final point, and in reality, even after the inception of FRA, the excruciating issues are too far from withering away.

As per the government records, the status of claims is in a dismal position. The latest update by the Ministry of Tribal Affairs reading the claims distribution shows that out of the total filed claims of 40,89,035, only 19,64,048 have been granted, which accounts for not even 50%. Status in some states is even more abysmal; for instance, in Himachal Pradesh, a state with around 70% forest land, the acceptance rate is about 6.5%, which highlights a fallacy in the system (GOI, 2019).

FRA is indeed a revolutionary law not only on social grounds but on political grounds as it rightly encapsulates the rapidly changing nature of democratic politics in India. But the time has come for both academics as well as grassroots movements to shift focus from the veneration of the Act to work on the fallacies in implementation which would begin the second phase of this paradigm-changing revolution.

Rajat Chaudhary is a recent Urban Fellowship graduate from Indian Institute for Human Settlements.

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