Whose forest is it anyway?

Manki Bai of Rajnandgaon’s Sonoli village took on the Forest Development Corporation when it wanted to fell trees in the area. Her village had got community forest rights under the Forest Rights Act (FRA) in 2013. The fate of the Act and over 10 million forest-dwelling communities hangs in the balance as the Supreme Court waits to hear from the Centre and state governments on September 12.

However, while the governments get to present their case, the forest dwellers who draw their strength from the FRA do not have a similar opportunity to be heard despite the fact that they are party to the case since 2008. And a host of other interventions filed recently remain pending before the court.

On February 13, the apex court was hearing a decade-old batch of writ petitions challenging the constitutional validity of the Forest Rights Act (FRA) 2006, filed by wildlife conservationists and a few retired forest officials. According to the petitioners, the Act led to deforestation and encroachment of forestland. They also believe that human settlements within the forests are a threat.

The court passed an order that “claimants whose claims have been rejected and have attained finality should be evicted.” Given the election fervour and massive protests across the country, the Ministry of Tribal Affairs (MoTA) and the state governments made a quick intervention through the Solicitor General of India and the order was put “on hold”. State governments were to report on the status of implementation of the Act and file their responses. The next hearing is on September 12.

As the case unfolds, it is evident that a progressive and historic legislation attempting to decentralize forest governance and ensure that communities get rights is getting reduced to administrative issues.

The petitions originally challenged the constitutional validity, arguing that Parliament does not have legislative competence to enact a law like FRA as “land” falls under the competence of state legislatures. The petitions clearly ignored the preamble of the Forest Rights Act, which recognises pre-existing rights—both agriculture as well as community rights to forest. Forest being a concurrent subject gives the central government the right to legislate on the subject.

By 2014, realising that these arguments would not stick as the implementation of FRA was on track, the petitioners filed an interlocutory application seeking, among other things, the recovery of forestland from the possession of those people whose claims under the FRA stood rejected. MoTA opposed this; the focus shifted back to constitutional validity. But in 2019, there was no such luck and the issue is once again mired in the mere administrative matter of implementation and procedural gaps.

The Forest Survey of India (FSI) has made an entry into this. It has nothing to do with the implementation of FRA but the petitioners convinced the court that FSI should record and present the extent of encroachment using satellite imagery. The affidavit submitted by FSI, through the ministry of environment, forests and climate change (MOEFCC), mentions that most states have not given the geo-referenced polygons of rejected claims and they would need 16 years to complete the process. To complete it in 5-6 years, it would cost Rs 48 crore. The MOEFCC only mentioned that state governments had not provided the data.

Far from the courtroom deliberations, Amla Bai Yadav from Gariaband, a member of the Community Forest Resource Management Committee, echoes the importance of forests in their lives. “The forest is our mother, our soul. If we are not there, the forest will also not be there.

India always had traditional knowledge systems guiding forest protection and management, central to which have been the community institutions. These institutions had evolved systems and mechanisms of regulation and collective approach towards access, use and governance. For the communities, their livelihood and cultural systems are so intertwined with forests that it is impossible to separate conservation needs from their social and economic needs.

Manki Bai says, “it is not just about rights, FRA empowers us to decide how forest management takes place. Forest management cannot take place by cutting down forests. Plantations of commercial species is not forest, forest is biodiversity which supports people and wildlife.”

The case has completely and deliberately ignored the essence and spirit of the FRA. It has moved on to eviction and wrongful rejection, while the larger question of decentralised and community-based participatory governance has been diluted. It is the country’s first legislation that seeks to balance conservation and livelihood, empower communities to take decisions regarding their resources, and provide a framework of recording and recognition of rights. The greatest potential of the Act could be realised in the recognition of community rights, which has received the least attention.

Rights and conservation have to look beyond the judiciary for their social and ethical compass. Unless we acknowledge and recognise the real conservers of forests—the forest-dwelling communities—India will not be able to sustain the biodiversity and complex ecosystem that defines the forests.

(The writer is Programme Coordinator-Natural Resource Management at Oxfam India)