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BALANCING OF RIGHTS: PROTECTION OF TRIBAL CULTURE VIS-À-VIS FOREST AND WILDLIFE LAWS


ABSTRACT:

This paper focuses on the major laws that regulate using of forest land, resources, and the

variety of wildlife that habituates these forests in India. Mainly focussing on the impact of

these laws on the tribals that form part of the Indian heritage, whose livelihood and lifestyle

depends on, and revolve around the forests. Historically Indian forests have been exploited by the British during Indian colonization for trade and then for strengthening of the British Navy during both the world wars. This has not only reduced the forest cover, but the laws passed during the course of events have neither recognized the rights of tribal people, rather pushed them out of the forests, on which they depended for wood, medicines, food, and other essentials, with a view to prohibiting interference with the forest resources, in ‘national interest’.

Although there are multiple laws that regulate forests, exploiting of its resources, using forest land for non-forest purposes, transportation of timber or other resources, however in this paper we will focus mainly on the forest policy of 1988 and its relationship with other major laws like the wildlife protection act, forest act of 1980 and the Scheduled tribes (recognition of forest rights act), 2006.


Keywords: Forest policy, Tribal Rights, Forest Act, Wildlife Act, Forest Dwellers


INTRODUCTION:

The Allahabad High Court, while accepting the definition given by the FAO, stated that

forest means and includes “all land bearing vegetative association demarcated by trees of any size, exploited or not, capable of producing wood or other forest products or exerting an influence on the climate or on the water regime or providing shelter for livestock and

wildlife” In India, the Centre and states are jointly responsible for the sustainable management of the forests. Legally, the state forest departments are bound as the forest authorities, in accordance with forest management plans, to submit to the central government reports and statistics, to protect the public forest resource and manage the forest resources.

INDIAN FOREST ACT, 1927

The object of the Indian Forest Act of 1927, the country’s oldest forestry legislation (still in

force), is to consolidate and preserve areas with forest cover or significant wildlife, regulate

movement and transit of forest produce, and levy duties on timber and other forest produce.

It is basically a refined version of previous Indian Forest Acts implemented under the British.

The Indian Forest Act of 1927 empowers the state governments to enact rules, regulating

various aspects of forest management. It also provides for the procedure by which states

governments may declare an area a Reserved Forest, Protected Forest, or Village Forest.

That does not define what is meant by the term ‘forest’, the acts which are prohibited inside a Reserved Forest, and the penalties that levy on violation of the provisions of the Act.

In some states, the Act is applicable as it is. Some states have enacted their own laws that are in essence adopted versions of the Indian Forest Act of 1927 namely the Kerala Forest Act, 1961; the Karnataka Forest Act 1963; and the Jammu and Kashmir Forest Act, 1930. the Act is proposed to be amended, to include the prohibition of fresh clearances in forests and setting fire to a reserved forest.


THE FOREST (CONSERVATION) ACT, 1980[1] AND THE COMPENSATORY

AFFORESTATION FUND ACT, 2016[2]


The Forest Conservation Act was passed with the main objective of correcting the loopholes

left by the earlier act of 1972 for the protection of forests. Section 2 of the act states that the

Central Government’sprior approval is necessary for the diversion of forests for non-forestry

purposes. Section 2 further clarifies that any developmental projects for drinking water,

irrigation, railways, transmission lines, roads[3], defense-related projects, power plants, and

mining are excluded from the definition of non-forest purpose. The compensatory

Afforestation Fund act introduces the concept of compensatory afforestation, catchment area treatment, biodiversity, and wildlife conservation, to be done instead of the diversion of forest conservation act of 1980. In 2003 new rules were issued to regulate the rights of tribals on forest lands, and guide the process of establishing productive village forests. 

THE NATIONAL FOREST POLICY, 1988.

According to the FAO, a national forest policy is a ‘negotiated agreement between

government and stakeholders (i.e., dependants or benefactors from forests and those who

decide on, control, or regulate access to these resources) on the orientations and principles of actions they adopt, in harmony with national socioeconomic and environmental policies, to guide and determine decisions on the sustainable use and conservation of forest and tree

resources for the benefit of society. A national forest policy is not to be unilaterally imposed

by the government.

Before 1865, forest dwellers were completely free to exploit the forest wealth, the scenario

after, 3 August 1865 when the British, on the recommendations of the then-superintendent of forests in Burma, issued guidelines restricting the rights of forest dwellers, intending to

conserve forests and their resources. This policy was modified in 1894, declaring that the sole

aim that State forests can be exploited is ‘public benefit.’ In actual practice, however, these

objects were used as a curtain to cover the exploitation of forests for British interests.[5]

Forests in Nagaland and the Terai were cut relentlessly to meet the increasing demand for

wood for shipbuilding during both world wars.[6] The policy was amended from time to time

to serve the needs of the British army and facilitate colonial trade. The National Forest Policy

of the Government of India (1952) is an example, where it declared that the claims of

communities living in forests shall not override national interests, that national interest will

always be the first and foremost object of government policies, relinquishment of forest land

for agriculture shall only be permitted in exceptional and essential cases.[7]However, a

change was brought in the old policy whereby, relinquishing of valuable forests for

permanent cultivation was discontinued. Steps to use the forest land for agricultural purposes were taken only after consideration. A detailed land capability survey was suggested, to ensure the balanced use of land. Regularized Conservation of wildlife was made a priority.

The policy continued against the interests of the tribals according to which they were to be

dissuaded away from shifting cultivation.

National Forest Policy of India was implemented to ensure compensatory afforestation,

essential environmental safeguards, sustainable utilization, maintenance, restoration, and

enhancement of forest areas. It stressed that forests should meet the subsistence requirements of people and was intended to decrease degradation by forest dwellers through better management. It also stipulates that industrial wood needs should be met increasingly by farm forestry.

The policy of 1988, to make amendments to the problems of the 1958 forest policy,

recognized that the use of forest products, for ‘national interests led to overexploitation of

forest resources.


Since the backbone of forest dwellers economy is the vegetation found in the nearby forests.

But the forest dwellers' rights to collect fuel, fodder, and minor forest produce are very

restricted. 2 The policy, for this reason, takes steps for relieving pressure from shifting

cultivation, a widespread practice in the North-East. 3 It strictly discourages this form of

cultivation, as it is believed to accelerate land degradation. This is, in fact, a view perpetuated from colonial times. The latest research suggests that it may not be the case.

The National Forest Policy 1988 outlines the essential ingredients for good forest

management under the new priorities. First, it stresses that forest management ought to defend and enhance forest and forest lands. This includes the conservation of diverseness by

strengthening protected areas. Second, it acknowledges that forest fringe areas and forest

communities depend upon the forests for fuelwood, food, fodder and alternative minor forest turn out for his or her livelihoods. Therefore, forest management ought to look to deal with these forest services as a priority, so the forest resources don't seem to be overexploited by the dependent communities. Finally, it stresses that whereas increasing forest resources and protective existing forest lands is that the primary aim of forest management, it mustn't be done by changing productive agricultural land into forests.

Afforestation was inspired on roadsides, railway lines and canals and alternative unutilized

lands by each non-public and public entities. The policy inspired social biology on unused

community land. the govt. was to supply the technical help and initial monetary help to line

up such programmes, and therefore the advantages generated from social biology were to

travel to the community through the panchayats.

As a marked deviation from the earlier policy, the National Forest Policy 1988 inspired

involving social group teams within the protection, regeneration and development of forests

through social group cooperatives and alternative government establishments. social group

teams grasp the forest intimately, and their data wouldn't solely enhance the forests quickly however, additionally give employment opportunities for these teams. This recognition allowed forest villages to realize a more robust foothold within the country, and their development became as necessary as revenue villages 4

2 Joshi Gopa, Forest Policy, and Tribal Development, Cultural Survival Quarterly Magazine, June 1989,

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https://www.culturalsurvival.org/publications/cultural-survival-quarterly/forest-policy-and-tribal-development,

last accessed 09:34 PM, 28th June 2021.

3 LANUKUMLA AO, Deforestation In Nagaland: A Historical Perspective, Thesis submitted, Department of

History & Archaeology Nagaland University Kohima Campus,November2014.

http://www.nagalanduniv.ndl.iitkgp.ac.in/bitstream/handle/1234567/146/T00131.pdf?sequence=1&isAllowed=y

, last accessed 09: 45 PM, 28 th June 2021.

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WILDLIFE PROTECTION ACT, 1972 5 AND THE WILDLIFE

(PROTECTION) AMENDMENT ACT, 2006

The Wildlife Protection Act 1972is a major law towards wildlife conservation was stated that

hunting or collecting wild animals and plants in areas protected by the State requires approval from the Forestry Administration. The Act classified animals, according to the need for protection, into different schedules, and hunting of these species was outlawed and penalties were prescribed in case of violations. As said earlier the act, was a paramount step in protecting India’s rich wildlife but, the reality is proof that it radically affected the traditional

hunting rights of many tribal communities, making their livelihood illegal. 7 Project Tiger was

launched in 1973 in furtherance of the wildlife protection act. The project was started to

revive the tiger population, which had dwindled because of hunting and habitat destruction.

Since then, the country’s wildlife sanctuaries have expanded from 10 national parks to more than 100 and over 600 protected areas in the country, with almost 50 tiger reserves. To reach the goal, however, these reserves had to be cleared of traditional dwellers, who many

conservationists wrongly thought would be an impediment in this plan. 8

National Tiger Conservation Authority and the Tiger and Other Endangered Species Crime

Control Bureau (Wildlife Crime Control Bureau) was the outcome of the 2006 amendment in

the act. One of the most important works by the board is to accord the status of ‘Sanctuary’

and ‘National Park’ to the all-former game reserves in the country.

The wildlife protection act like other Indian laws, do not reserve tribals’ hunting rights in the

the forest as opposed to similar conservation laws passed in counterpart countries. 9 Section 3(l) of The Scheduled Tribes & Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 or Forest Rights Act (FRA) excludes the traditional right of hunting or trapping or extracting a part of the body of any species of wild animal.


4 Joshi, Aditya & Pant, Pallavi & Kumar, Prasant & Giriraj, Amarnath & Joshi, Pawan. (2010). National Forest

Policy in India: Critique of Targets and Implementation. Small-scale Forestry. 10. 10.1007/s11842-010-9133-z.

5 The Wild Life (Protection) Act, 1972, ACT NO. 53 OF 1972

6 The Wild Life (Protection) Amendment Act, 2006, ACT No. 39 OF 2006

7 Jithin, V.J. & Pathak, Puneet. (2017). Tribal rights looped in governance of protected areas in India. 2. 10-14.

8 Hindustan Times, HT Correspondent, updated on 25th Feb 2018 05:01 PM IST,

https://www.hindustantimes.com/editorials/the-conservation-vs-people-approach-to-protecting-wildlife-has-hit-

tribals-hard/story-f5vwBEmYRcWSRzf2Vief5N.html, Last Accessed, 12:49 AM, 28th June 2021 9 Animal Care and Protection Act of 2001 (Australia) recognizes the rights of Torres Strait Islanders and Aboriginal Australians and include the drowning of dugongs, harpooning of turtles, and killing the turtles with strong blows to their heads.


Although, the community right to hunt is prevalent in many tribal and traditional forests-

dwelling communities. However, the traditional community rights associated with hunting

are also not spared from the criticism from the perspective of conservationists. For several

tribal and other traditional forest-dwelling communities, reliance on a property-based

framework instead of a regulatory one is significant to enforce their community rights to

wildlife and forest resources.

However, with changing times, laws and their interpretations have also opined and opened

the corridors of balancing arrangements, where the conflicting native rights of such

communities and concerns of forest and wildlife conservationists do collide to finally come to

a settlement between interests of people living in and around Tiger Reserves.

THE SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS

(RECOGNITION OF FOREST RIGHTS) ACT, 2006

The Indian Constitution provides through many of its articles for the protection and

preservation of Scheduled tribes and their culture. This law is a result of the National Forest

The policy of 1988, Judicial Decisions, and international developments in the area of Indigenous peoples’ rights.

According to the 2011 Census Report, Tribals constitute about 8.6% of the total population of India, a majority of which lived in the countryside and relied mainly on agriculture.

According to the forest Right act, tribals are “the members or community of the Scheduled

Tribes who primarily reside in and who depend on the forests or forest lands for bona fide

livelihood needs and includes the scheduled tribe pastoralist communities”. Traditionally they are semi-nomadic, jhum cultivators settled cultivators, living completely in forest

produce. The forest regions are also inhabited by non-tribals forest dwellers defined by the act as “any member or community who has for three generations prior to the 13th day of

December,2005primarily resided in and depends on the forest land for bona-fide

livelihood needs.” 10 who depend on forests for fuel, fodder, and so on.

The law was passed with the object to recognize the rights of forest-dwellers and Scheduled

tribes to land and other resources, who had been living in forests for generations without

recognition. The further provides for a framework to record these rights and stipulates that

companies/States should protect the existing rights and concessions of the forest-dependent

communities 11.It is observed that this act is a social welfare-cum-remedial statute.


CONCLUSION


According to a UN estimate, 50 percent of the total land area in India is seriously affected by

water and wind erosions proving that the forest policy of India has not been successful in

protecting the ecosystem. The dislocation of fertile soil is estimated to be approximately 6

billion tons a year, thus depriving the country of a vast amount of total plant nutrients. About

4 million hectares of land are in ravines and eroding along mountain roads, causing frequent

landslides. 13

To understand the practicality of the laws discussed hereinbefore, we have to assess the

lifestyle nature, and extent of forest dwellers' dependence on forests. Only then we can

understand the extent to which the forest policy implemented by different states and Union

territories ensures that the basic needs of forest dwellers.

This ‘conservation vs people’ approach to protecting wildlife only worsened the lives of

thousands of forest-dependent tribal communities in India. The government

acknowledges that “although there is a need to keep forest reserves as inviolate for the

purposes of tiger conservation, it needs to be done without affecting the rights of traditional

forest dwellers” In order to make room for wildlife, tourism, and industry, governments all

over the world are using conservation as a pretext to drive the world’s most endangered

people away from the lands and animals they have lived with for generations.

However, in reality, not much is done to revive the already vulnerable communities of the

forests, there is a clear demarcation of priorities of both sides.

It is very clear that the forest policy seeks to protect forest wealth from forest dwellers, not

from unscrupulous contractors. It is also seen that the afforestation program prioritizes

quick-growing species capable of being used as raw material for forest-based industries often overlooked ecological considerations.

Movements and associations the forest dwellers like the Chipko movement, Bhoomi Senna,

Silent Valley Movement, Jharkhand Movement are insisting on a planned strategy

11 Ibid, statement of objects and reasons

12 Orrisa Mining Corporation. Ltd. v. Ministry of Environment and forest, (2013) 6 SCC 476, 503.

13 Chapter 4 - Status of degradation. I. Erosion and fertility decline, FAO,

http://www.fao.org/3/v4360e/V4360E05.htm, last Accessed 12:17 AM 28th June, 2021

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incorporating the needs of the local ecology, local economy, and national interests. It

won’t be wrong to say that only a people-oriented forest policy and development strategy will

be able to bring the forest dwellers into the mainstream of national life without adversely

affecting the ecosystem.


ABOUT THE AUTHOR

Yameena Ahmad, a III rd year student pursuing a BA.LL.B (Hons.)from the Faculty of Law, University

of Lucknow. The author is a research intern at the Stambh organization

Email-yameena@2012gmail.com

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