Fighting over forests

India's forests were legally 'reserved' or 'protected' through the Indian Forest Act (IFA) of 1927. At that time, during the Raj era, the rationale for doing so was solely commercial: ships had to be built for maritime expansion, and railway sleepers had to be laid for the sake of commerce. Since then, in what some would say is a direct result of this legislation, access rights of forest-dwelling and dependent communities, including Adivasis, have been steadily curtailed. Many forest-dwelling communities have been displaced from forests; in addition, a substantial number still remain but without rights, forced to anxiously anticipate displacement.

In due recognition of this historical injustice, new legislation was finally drafted in 2006, known as the Scheduled Tribes and Other Forest-dwellers (Recognition of Forest Rights) Act. For the first time, this new law, commonly abbreviated as RFRA, provided land and forest rights to these communities, laying out specific criteria for this recognition. These rights were also to be complemented by new responsibilities, with the local communities playing a key role in the protection of wildlife and ecologically sensitive habitats, as well as the implementation of local-level decisions on access to community-forest resources. Despite what many felt were notable steps forward, however, since 2006 this legislation has become the keystone in a bitter fight between two nominally aligned camps. (The RFRA was finally notified in January 2008.) On the one hand are those who feel that the true conservation of wildlife and wilderness requires a specific absence of human activity; on the other are those who feel that no true conservation project will ever function successfully without the active involvement of local communities. How these two sides ultimately come to agree or disagree will have significant ramifications not only for an ostensibly forward-looking legislation such as the RFRA, but more particularly for the communities that it aims at assisting.

A bit of detail about the substance of the legislation at hand is first required. The RFRA begins by defining the required relationship between local communities and the lands to which they can claim rights. Adivasi communities are required to have occupied a specific piece of land prior to 13 December 2005; other forest-dwellers need to have resided or depended on forests for three generations prior to that date. The Act also provides for rights over access to and use of 'minor' forest products, including resources that were traditionally protected or conserved. Intellectual-property rights are also provided for with regards to traditional knowledge related to biological and cultural diversity. Importantly, the Act empowers Gram Sabhas (constitutionally recognised decentralised village councils) to protect forests, wildlife and water sources, while also ensuring that Adivasi and traditional forest-dweller habitats are protected from destructive practices. Finally, the Act provides for the modification of rights or resettlement of rights-holders, if such rights have been given in critical wildlife habitats in national parks or wildlife sanctuaries. With a nod to the inherent possibility of politicisation in this, the identification of such habitats is required to be done on a case-by-case basis, on grounds of objective scientific criteria.

The lawmakers involved in designing this reshuffling of rights and powers surely foresaw a certain amount of dissention. The subsequent tussle over the RFRA is not particularly new, with legislative measures aimed at mitigating the vulnerabilities of forest-dwellers having long been points of significant contention between rights organisations, academicians and NGOs in India. Amending the archaic Indian Forest Act to make it more inclusive in terms of access rights and to ensure the security of its tenure has been an important part of this discourse. While the IFA has been amended seven times since 1865, this was always to consolidate state control. Prior to the RFRA, meanwhile, the closest that civil society ever came to succeeding in making the IFA more inclusive was the drafting of an alternate 'people's' version of a proposed stringent piece of forest legislation in 1994.

Misinterpretation
With the National Forest Policy of 1988, the Indian government did set out to create a more inclusive forest agenda. This policy sought to stall the commercial orientation of forestry by subordinating economic benefit to environmental stability and ecological balance. It also conceded that Adivasis and other forest-dependent communities enjoyed rights over fuel, fodder and minor forest produce. Yet, the occupation, or encroachment, of land designated as reserved forests continued to be contentious.

Eight years earlier, the Forest (Conservation) Act of 1980 stipulated that encroachments needed to be regularised within a certain timeframe. In 1990, the Ministry of Environment and Forests issued circulars regarding pre-1980 encroachments. But from 1991 until 2005, proposals for the regularisation of encroachments were received from only ten states. Yet, even this was pre-empted when, in 2000 and 2001, while these proposals were still pending, the Supreme Court ruled in what is considered a landmark judgement on a petition regarding deforestation in the Nilgiri Hills to halt any further de-reservation of forests and regularisation of encroachments. The FCA's provisions, the court stated, apply to all forest types, irrespective of the nature of their ownership or classification.

Even as the country's conservation mandate was thus bolstered, the resultant livelihood insecurities intensified nationwide. In addition to curtailing regularisation even of pre-1980 eligible encroachments, the Supreme Court also found that its order to ban the removal of dead and fallen trees and branches in protected areas had been misinterpreted by the Environment Ministry, which had been more lax in its understanding. Yet despite what seemed like multiple setbacks, rights activists claim that the Nilgiri Hills case ultimately facilitated the eventual passage of the RFRA. Based on the Supreme Court orders, the Environment Ministry began carrying out evictions in 2002. But as these evictions were often violent – in Assam, for instance, elephants were used to trample huts and fields in order to evict Adivasi families – they quickly led to a public outcry. Within a few years, the Ministry also complained that forest departments were often unable to differentiate between Adivasi families and encroachers.

National politics soon intervened. In 2004, the United Progressive Alliance (UPA) came to power and by December the new government had issued orders to cease evictions. Earlier that election year, the Environment Ministry had already issued directions to extend the eligibility date for regularisation, from 1980 to 1993. Despite these changes, however, evictions continued, and were particularly violently pursued in states such as Madhya Pradesh. It was at this juncture that the prime minister's office decided that the RFRA should be drafted, a task entrusted to the Ministry of Tribal Affairs. As always, though, there were multiple competing concerns in this new look at forest rights. If the increasing presence of Naxalites in India's vast forests was one expedient reason for drafting the new bill, the declining presence of tigers in those same forests seemed reason enough to defeat it. In January 2005, reports arose that tigers were disappearing from the Sariska sanctuary, in Rajasthan. Not only was poaching blamed, but forest-dwellers were seen as significant participants in the poaching networks.

Conservative conservation
In response, Prime Minister Manmohan Singh sanctioned a Tiger Task Force in May 2005. This new group was headed by Sunita Narain of the Centre for Science and Environment, an organisation that two decades earlier had pioneered the idea that inequality in resource access and control was contributing to an ecological crisis. When the Task Force's pro-livelihood recommendations on institutional reform of conservation were made public, a number of members dissented with the findings. For instance, Valmik Thapar, a tiger activist, wrote that protected areas, particularly tiger reserves, needed to be absolutely inviolate. This set in motion strong resistance to the Forest Rights Bill from many corners. The Ministry of Environment and Forests warned that the de-notification of vast tracts of forestland, and the elimination of legal protection for forest cover, would lead to irreparable ecological damage.

The ambiguity that marks various legal interpretations of the issue of forest rights in general signals a disconnect between the RFRA's intent and its content. A good example of this is the so-called Derogation clause, referring to other pieces of legislation that the RFRA would supersede. To get a sense of this disconnect, two different parts of the RFRA need to be read side by side. Section 4 (1) of Chapter III reads: "Notwithstanding anything contained in any other law for the time being in force, and subject to the provisions of this Act, the Central Government hereby recognises and vests forest rights…" (italics added). The first part of this clause reveals a certain element of autonomy on the part of the RFRA, by suggesting that a vesting of rights will occur despite other conservation laws. But in the italicised mid-sentence section, that autonomy appears to be conditional.

Now look at Section 13 of Chapter VI. "[S]ave as otherwise provided in this Act," it reads, "the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force." Nowhere in the RFRA is it "otherwise" provided that the Act's provisions would stand alone and be in derogation of other legislation. Thus, the clause's insertion needs to be seen principally in the context of vesting community-forest-related rights, since doing so with regards to more general forest rights cannot take place if it would impinge on the provisions of other legislation, namely the Indian Forest Act and the Wildlife Protection Act (WLPA).

Meanwhile, a year since it went the RFRA was notified, even environmentalists closely monitoring the legislation's performance continue to be unsure about its relationship with either of these two pieces of legislation. On the one hand, the tiger lobby has opined publicly that the RFRA does indeed override the IFA and the WLPA; but this stance has been seen as strategic, in that the group openly sought either to stall or dilute the RFRA. Meanwhile, Adivasi activists and community proponents have been equally public in their reassurances to the tiger lobby that the RFRA will not override the IFA or the WLPA; privately, however, there has been consternation over the possibility that the latter two laws could indeed supplant the former, especially relating to community-forest rights. In the absence of any real evidence that India's forest administration will engage with the collaborative spirit that the Derogation clause seems to suggest, amendments to both the IFA and WLPA would be required if general forest rights of the type vested under the RFRA are ever to be exercised.

Lobbying and litigation
In May 2006, a joint parliamentary committee was formed to make recommendations on the draft RFRA bill. When the bill was hastily passed, in December 2006, it did include "other forest-dwellers" in its ambit, and the eligibility date for encroachments was moved substantially, from 1980 to 2005. However, other clauses were diluted. The following March, a 29-member committee was constituted to draft RFRA-related rules, which eventually delineated the monitoring roles to be played by the Gram Sabhas, and clarified a spectrum of rights-related issues. Public comments were called for by 31 July, after which the Act would be notified. In fact, however, notification did not actually take place until 1 January 2008.

During this hiatus, the Environment Ministry and the newly formed National Tiger Conservation Authority undertook efforts to notify new inviolate tiger habitats under the Wildlife Protection Act. A press release from the prime minister's office on 31 December 2007 – the day before the RFRA notification – stated that 11 states with tiger reserves had identified and notified these areas as habitats. Several others had also identified such habitats, but were yet to notify them. Though seemingly a conservation measure, such actions also reveal politico-administrative expediency, in that they sought to pre-empt tiger reserves from falling under the scope of the RFRA.

The media was also strategically mobilised to garner middle-class support for tiger conservation. In September 2007, a group called Vanashakti received slots on Star TV to air a series of 30-second clips depicting children appealing to stop the RFRA. They would inherit a world without water and wildlife, they pleaded, and cities would flood due to deforestation. Meanwhile, forest-dwelling and forest-dependent communities also stepped up their campaign. By October, they were mobilised to protest against the delay in notifying the rules. The drafting-committee members even wrote to the Tribal Affairs Ministry, and the rules were finally passed and the RFRA notified.

For nearly all sides, however, the notification was only the next step in the fight. Even as the pro-RFRA lobby welcomed the notification, it claimed betrayal. A section of the draft rules that provided an institutional roadmap to operationalise certain elements had been removed, and the rights application forms were criticised as being vague regarding community-forest rights. Meanwhile, conservationists and others have filed petitions in state courts and with the Supreme Court against the Act. These have included, among others, an ex-landlord from southern Tamil Nadu, a society of retired foresters in Orissa, and conservation and naturalist organisations. Recent reports in the Indian media contradict the seriousness of the government to implement the RFRA – in a glaring incident; the government has found that the committee set up to monitor the implementation of the RFRA has failed to even ensure the appearance of its counsel in a latest hearing in the Orissa high court.

Pragmatic decentralisation
At this point, a year since the RFRA's notification, the problem is that both sides have consolidated their positions to the point where they are too black-and-white for any pragmatic wiggle room. Conservationists say that Adivasi communities and, for instance, tigers cannot coexist as they once did, back during a time when landscapes were less fragmented, supporting fewer people and with a significant presence of 'mega-fauna'. Interestingly, this ecologically sound but simplistic idea of a harmonious past is also adhered to by community champions, in the modern argument for community-based conservation. Local peoples are also now projected as natural allies in the fight against massive infrastructure projects such as mines or dams. In fact, both ideas are overly simplistic in the ways in which identities are manufactured and interests represented.

Such contradictions need to be engaged with if there is to be any hope of practical conservation outcomes. For instance, forest-dwellers might well participate in community conservation initiatives primarily for economic reasons, rather than for the commonly attributed 'traditional' reasons such as idealistic concerns about trees and tigers. Furthermore, long-term economic aspirations on the part of forest-dwellers might only allow their short-term participation in community conservation. For this reason, the only approaches to conservation that will work will be those that take into account these contradictions in resource-use identity and interest. Forest-dwellers need to be treated as citizens with aspirations and development rights, rather than solely as, say, Adivasis who are traditional residents of forests – and who want to stay that way forever.

To date, the problems the RFRA has faced can be summarised as pitching centralised conservation against decentralised conservation. In prioritising community participation in the latter, the Adivasi lobby has largely subscribed to the mainstream understanding of the term 'community'. But such a view does not engage with certain challenging conservationist critiques of community interests and identities. As for the tiger lobby, it has used rhetoric, alarmism, legal manipulation and power in resisting the RFRA.

In retrospect, perhaps only land rights should have been vested through the RFRA, as this would have been more appropriate to decentralising conservation through an amendment to the IFA. Indeed, since decentralised conservation as envisaged under the RFRA will not be tolerated, given its potential to redistribute power in forestlands, the only realistic option is to amend both the IFA and WLPA. But for any such amendment, some radically inclusive rethinking is required on the part of the government and the conservationists regarding the people's role in conservation. And if these roles are to be more than merely giving people uniforms for protection, then community activists and academicians likewise need to look beyond 'tradition'. People do not lend themselves naturally as conservation allies; in fact, they are allies with aspirations and interests. Sensitivity to such issues as identity and interests, along with a sensible mix of the traditional and modern, can build meaningful stakes for people to conserve natural resources.

~ Siddhartha Krishnan is a sociologist with ATREE (Ashoka Trust) in Bangalore.