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New laws for old: Forest rights and red-tape wrongs by Shankar Gopalakrishnan

It is a little known fact that in roughly a fifth of our country’s land area, a different legal system operates. In some of these places, if you are caught with certain items, it is up to you to prove that you are innocent of a crime — and whether you go to jail depends on whether a government official kept proper records years earlier. If you are using some tools or a cart or a vehicle, they can be taken away until you prove your innocence. And woe betide you if you are cultivating some land — whereas in most parts of the country this is a civil dispute, in these areas, you can be evicted, fined and jailed for it. And in some parts in particular, if you are arrested for the second time, you can’t get bail, and not only your property but that of your family can be confiscated if you “benefited” from an alleged crime.

No, these are not “disturbed areas”, though the laws are only somewhat better than the ones applicable there. These laws apply in India’s forest areas, and are centred around the Indian Forest Act of 1927. It is commonly assumed that the purpose of the Indian Forest Act was to protect forests. But this was not the case.

The 1927 Act was passed by the British with the intention of making it easier for them to access the country’s timber resources for their use.

The “protection” concern was limited to ensuring that the British did not lose “their” timber, and in practice large areas of natural forest were cleared in order to be replaced with “better” trees. For this reason, the main concern of the Act is with preventing “unauthorized” access to forest produce.

Hence the draconian powers of the forest authorities — to arrest, to search without warrant, to confiscate property, and so on. In practice, on the one hand, the rights of tribals and forest dwellers were almost never recorded at the time of declaration of either reserved or protected forests, with the result that their livelihoods and their very existence were criminalized.

On the other, a forest bureaucracy came into existence with powers over vast areas of land and resources, but with hardly any accountability. This has resulted in extremely severe poverty among these communities, as well as a spiral of environmental destruction and violence in the forests which has benefited a few while increasing the environmental and social costs to us all.

This situation led to the passage of the Forest Rights Act in 2006, which was intended to democratize forest management. It was meant to give back the right of forest dwellers to collect forest produce, cultivate their traditional land holdings, and to control their community forests. But, as with any bureaucracy, the forest bureaucracy does not like to give up its power; and forest dwellers continue to have cases filed against them for doing things that are now their legal right.

Meanwhile, both the bureaucracy and the government as a whole are playing a double game on these rights. In the most recent example, on March 22, the Cabinet approved an amendment to the Indian Forest Act in the name of reducing false cases on forest dwellers. The amendment makes it possible for a forest official to “compound” an offence — essentially to release a person upon payment of a fine — for any offence valued up to Rs 10,000. This will supposedly make it possible for forest dwellers to be let off for minor offences.

But this “benefit” ignores the fact that this amendment actually adds to the powers of forest officials — who now can impose fines as well as threaten people with arrest, jail and confiscation of property. If anything, this will lead to more cases, not less. To actually stop harassment, the amendment should have de-criminalized people’s rights and reduced officials’ powers; but there’s no reference to that.

This has now become a pattern. Since 2006 the government has been proclaiming a new system of forest management while actually strengthening the old one. Much talk of making the system peoplefriendly is accompanied with a deafening silence on the real issue: the autocratic and colonial nature of this system. It’s time we scrapped it and replaced it with one that befits a democracy.