05, Nov 2022 | CJP Team
Repeal the 1927 Indian Forest Act! This is the one-point demand of an innovative campaign, launched shepherds in Maharashtra that has seen over 10,000 postcards to the offices of the state’s chief minister and deputy chief minister demanding the repeal of the British-era Indian Forest Act (IFA). First reported in the Indian Express on October 22, the shepherds are protesting the “colonial hangover” of IFA’s restrictions that penalize them for grazing their livestock on forest land, through a postcard campaign.
The chief minister’s office and the deputy chief minister’s office are being inundated with postcards calling for the law to be repealed, according to Saurabh Hatkar, president of the Medhpal Putra Sena, the first-ever organisation of nomadic shepherds in the state. Started on October 2, over 10,000 postcards and letters have been sent till date, the report said.
About the shepherds
In order to get fodder, the shepherds, who are primarily from the nomadic Dhangar community, travel the entire length and breadth of the state with their animals. Nomads typically travel over 200 kilometres throughout their annual migration, which takes them across various regions of the state. As has been experienced by the nomadic Van Gujjar community that traverses routes from Jammu and Kashmir to Uttarakhand across the breadth of the Himalayas, here in Maharashtra’s plains, as Hatkar explains, the routes used have not altered for centuries. The community today faces more challenges adhering to their nomadic way of life as a result of urbanisation and terrain changes.
The community’s primary issue is the penalty the forest department imposes on them when their animals are “claimed to have strayed onto protected forest territory”. Offenders are subject to severe fines from the forest department. These fines, says Hatkar, imposed under a British colonial law, frequently deplete the community’s meager financial resources.
The Forest Act was implemented by the British to deny Indian Adivasis (tribals) and forest dwellers their rights. It is a cruel anomaly that, 75 years after our country’s independence, this law is still utilised to punish our citizens.
Shepherds and other nomadic communities, always part of a resistance against the land and livelihood grab by the forest department have, in recent decades found voice through young, vocal voices of their own communities. Hatkar, a student of the Tata Institute of Social Sciences (TISS) who, himself hails comes from a shepherding family, has, with his community, refuted the claim that open grazing endangers forests. For ages, he says as quoted by the Indian Express, “humans and forests have coexisted.” Hatkar has also demanded that the monetary penalties imposed on them be immediately suspended. In addition, the organization has called for the adoption of pastoral policies, a national insurance program, and community representation in the Ahilyadevi Sheep and Goat Corporation.
The issue of shepherds and nomadic communities’ rights being protected is a ticklish one as it gets mired into narrowly constructed urban-driven ‘environment versus people’ debates. Even Indian Courts have not been sensitised entirely on the question of the land and livelihood rights of pastoral and forest dwelling communities.
Shepherds in Tamil Nadu:
In March 2022, Madras High Court passed an order banning cattle grazing in the state’s protected forest area in the matter of G.Thirumurugan @ Theeran Thi Vs Union of India & Ors (W.P.(MD)No.8466 of 2020).
The court order was a result of a “public interest” case filed in July of 2020 by lawyer G Thirumurugan of Thirvadanai. The petitioner requested a restriction on grazing, citing the degradation of grasslands and the risk of disease transmission to wild animals, in the Megamalai wildlife division (which contains a sanctuary) and the Theni forest division of the Theni district.
According to provisions related to the restricted entry in sanctuaries under the Wildlife (Protection) Act, 1972, and on cattle trespass under the Tamil Nadu Forest Act, 1882, the court broadened the petition’s scope on March 4 and banned grazing in the entire 22,877 sq km of recorded forest area in the state.
Pastoralists and cattle producers in the state were incensed by the decision, and on March 15, 2022 they protested the abovementioned order. The Tamil Nadu Forest Act, 1882’s Section 16 specifies that “the authorities may be authorized to give cattle grazing privileges,” therefore the court changed its judgment two days later and confined the prohibition to 8,102 sq km of protected forest areas.
Reasons for Pastoralist and Cattle Producer Protest: For centuries, the primary source of income for communities in and around Theni that live in forests has been through the sale of grazing cattle, especially the native malaimadu species. Protesters argued that the high court order would threaten the health of the forest and also, perhaps override rules protecting the interests of local people while also robbing them of their means of subsistence.
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006, (or FRA 2006 as it is normally called), fundamentally protects the groups’ grazing rights in forested regions. Instead of referring to this law enacted as a result of decades’ long struggle of India’s Adivasi and forest dwelling communities, the court instead makes reference to antiquated statutes from the colonial era, notably the 1882 Tamil Nadu Forest Act. This has only resulted in forest dwellers being exploited and denied their rights.
At the outset, what is pertinent to highlight is that the 2020 ruling calls for the current system of issuing permits to be continued. Under the state’s 1882 Act, the forest department issues permits for grazing. These permits, however, are not based on any real data regarding the amount of livestock, which causes uncertainty among herders. 
In a state that has struggled to resolve individual or community rights over forest land guaranteed under FRA 2006, the court judgment cited substantially restricts the communities’ access to the woods and forests and forest produce within. Census 2001 data indicates that communities in the state can claim land titles on approximately 15,826.93 sq km of forest land that falls within revenue boundaries, according to the analysis provided by CR Bijoy, an independent resource-conflict and governance issue examiner in Coimbatore [Census 2011 data is not used as it calculates forest areas within customary or traditional boundaries, not revenue boundaries].
According to the most recent FRA 2006 data, 1,082 claims for community rights were submitted by October 2021 in Tamil Nadu. Only 450 of these titles have been cleared, and 86 claims have been denied. 8,144 unique land titles covering 96.26 sq km were issued out of the 33,755 claims that were submitted.
Following the ruling prohibiting grazing in protected areas, the communities can no longer access a large portion of the forest areas. According to Mr. Bijoy, more pastoralists and forest dwellers will be impacted if the abovementioned directive is adopted by other states.
It is essential that the aforementioned judgment be appealed before the Supreme Court since it establishes a precedent for the territorialisation of forests by the state and puts obstacles in the way of access to Adivasis and Forest Dwellers people of the forests, lands and forest produce. India’s indigenous people remain trapped in this conundrum.
In the year 2019, a Supreme Court’s order was severely condemned by human and tribal/Adivasi rights activists for ordering eviction of more than one million forest dwelling people, in case their application has been rejected under Forest Rights Act (FRA), 2006. The order came on a PIL challenging the validity of FRA 2006 filed way back in 2008. This sudden order of India’s highest court that, apart from justifying mass displacement, displayed a manifest ignorance of the latest amendments to law and the enactment of the FRA 2006. Pursuant to the countrywide protests by several activist groups, the SC was forced to stay its earlier decision. Following this, Sokalo Gond, Nivada Rana, All India Union of Forest Working People (AIUFWP) and Citizens for Justice and Peace apart from several other citizens intervened in the matter. However, this is not the first case in India where the India’s indigenous communities have been asked to leave their homes in the name of conservation.
Rights and Lives Lost- Indian Forest Act v. Forest Rights Act
The 1927 Indian Forest Act is just another archaic law, passed with the aim of oppressing the Adivasis (tribals and indigenous) and forest dwelling communities. This act is a “recognition of rights law” that acknowledges that Adivasis, Forest Dwellers (including nomadic tribes) are the inhabitants of these lands whose traditional modes of subsistence were impacted by the Act’s introduction. Even after India became Independent and a Republic (January 26, 1950) constitutional mandate under Schedules V and IX only were realized 56 years later, when the Act was passed.
The British government first passed the Indian Forest Act in 1865, with amendments made in 1878 and 1927, respectively. This law deeply curtailed the natural access and rights of India’s indigenous peoples. For a century before that, largescale resistance movements across the length and breadth of India India’s forest dwellers, Adivasis and agriculturists against the rampant British exploitation of the forest and agricultural produce had dotted our landscape.
For centuries before the British, these communities had generational rights that had been in place for ages. However, the Forest Act limited their long-standing claim to it. Faced with the strong resistance from India’s forest dwelling and agricultural communities at what was rightly seen as a resources grab and forced impoverishment, the British brought in this law (and similar laws in regions like Tamil Nadu) to control land and resources, weaponize the forest department and curtail their rights.
The 1865 Indian Forest Act was India’s first attempt at enacting a comprehensive forest law. Its principal goal was to uphold the British Empire’s monopoly over Indian forest land, and it provided the government unquestionable authority to administer the forest and pastures. The Indian Forest Act was reformed, amended, and brought about new regulations for the “smooth operation and scientific management of the Indian forest”. Hence what the colonial government saw as “flaws” or “loopholes” in the 1865 Act and the Indian Forest Act 1878 was refined to ensure a legal framework and control. The Act was given a legal framework by the colonial government’s policy directives on forest classification. The Reserve Forests, Protected Forests, and Village Forests all now fall under its purview.
For the first time, these forests and grazing lands were formally brought under state control. What the final 1927 amendment did was to bring the entire forest and grazing land under the administration of the Revenue and Forest Department. It gave the state the authority to effectively control wasteland; it also granted some “privileges” to forest dwellers, particularly the tribes; however, these privileges were insufficient and negligible, completely upsetting the preexisting situation and leaving no room for maintaining the traditional system of sustaining livelihood. The Indian Forest Act of 1927, also known as Section XVI of the Indian Forest Act of 1927, which is still in effect, finally replaced the 1878 Act with all relevant legal developments.
The Indian Constitution’s Fifth and Ninth Schedules, based on the intense 18-month long Constituent Assembly debates, recognized the special status and rights of India’s indigenous peoples, Adivasis and forest dwellers. However, ironically, the post-colonial state did not repeal other existing colonial legislation; in fact, post-Independence, British rule enacted forest legislation was adopted in all regions and applies by the Centre. There was no real break from colonial forest policy; in fact, as part of its nation-building initiatives, independent India strengthened the centralisation and exclusionary ideologies as well as the exploitation of forest resources. For instance, the National Forest Policy of 1952 placed more emphasis on production-forestry than on regularising the rights of forest residents. It placed a specific and sharp focus on making sure there would be a consistent supply of lumber and other forest products to suit the needs of industry, communications, and defense.
It has been 15 years since the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 was passed. This law was born out of the struggles of India’s indigenous communities. The purpose of this Act was to democratize the management of forest resources. It enables the Gram Sabha to operate as a quasi-judicial body in a three-tier appellate system to decide on title claims made by Individual Forest Rights (IFR), Community Rights (CR), and Community Forest Resource Rights (CFR).
The FRA 2006 recognises collective ownership over a larger landscape within or outside their traditional village territories, which attempts to ensure land and livelihood rights, preserve tradition and culture in addition to granting individuals title to their habitat. The Act grants Gram Sabhas more authority by providing them a number of statutory powers at a time when tribal people and forest dwellers have been threatened with eviction and have been living at the mercy of forest officials for more than a century. It is prohibited to use the forest land for other purposes without their express approval. But the journey has not been smooth for FRA so far, right from the day of its implementation.
The FRA 2006 and the IFA 1927 were enacted with two entirely distinct and conflicting impulses. While the former was enacted as a result of the assertion of communities and movements that expressed the exploitation by private contractors and forest dwellers, giving expression in law to the abiding rights of peoples over the forests, its most emancipatory aspect was the focus on women’s collective leadership within communities. The previous law, the latter however, in the name of ‘state control’, emphasizing forest land’s economic centrality assigns unbridled power to the Forest Department besides operationally having been responsible for the rapacious depletion of natural resources. It is tragic that despite the historic enactment of the 2006 FRA Act, it is not community and individual claims that are being emphasized by states; in sharp contrast the Forest Department and the IFA is the contradictory law that is being implemented with such rigour.
The forest dwelling communities have been managing and maintaining their forests and their resources by employing indigenous ways and their extensive understanding of the complex forest system for generations. In the late 1990s and 200s even as recognition of the role of these communities in forest conservation grew internationally, tendencies within more elite ‘conservation’ groups contested this claim, even going as far as to challenge the constitutionality of the FRA 2006.
Even in the year 2008, years after the FRA was passed, organisations like Wildlife First, Tiger Research and Conservation Trust (TRACT), and Nature Conservation Society (NCS) had filed petitions against it, not even giving it a chance towards implementation. Governments (state and central) have also been responsible for subverting this law. These attempts have been made in various ways, one of which is controlling the economics over minor forest produce. The rights conferred under the Forest Rights Act of 2006 include the right to collect and sell minor forest produce (MFP). These include tendu leaves used in beedis, and bamboo that have high commercial value and were under the forest department’s control.
This conflict, reflected in the courts and even orders of the higher judiciary is best summed up in the conflicting approaches of different ministries of the central government. The central government’s newly established Ministry of Tribal Affairs (MOTA- in 1999 after the bifurcation of Ministry of Social Justice and Empowerment) remains in conflict with the Mining and Environment Ministries to date. Since 2014, the regime at the centre has amended and enacted a slew of laws that in fact snatch were the fundamentally recognized “recognition of land and livelihood” rights under FRA 2006.
In August 2010 when the Union Ministry of Tribal Affairs, the nodal ministry for implementing FRA, released a status report. Only 46,156 out of the 2.9 million claims settled under FRA were given community rights, and the majority of these did not include rights over MFP, the report had stated. Agricultural land and homes in forested areas were the subject of all other titles. Individual pattas ( a land measure for housing and agricultural land) had largely received attention, while MFP rights have received less. The situation in Chhattisgarh is illustrative. Only 250 of the 214,918 claims that were handled in the state were for community rights, and none of them granted rights over MFP. The majority of the lower level forest authorities, who have been employed with the objective to assist in processing claims relating to forest rights, are not even familiar with the Act’s provisions.
Issues with implementation: The biggest implementation challenges are related to the structural factors that determine state’s power vs the relative lack of empowerment of ‘scheduled tribes’ and other communities. Besides, the post 1990s growth model has consistently maintained high levels of inequality, which is reflected in competing interests over the abundant base of natural resources—land, minerals, water, and forests. When the latter collectively organize for to ensure a realization of their rights, the situation transforms.
The visible goal of promoting commercial accessibility is directly at odds with the assertion of authority by communities that live in forests, there is little political will across parties to ensure intrepid implementation. FRA 2006 and its provisions also call into question the Forest Department’s jurisdiction and power, which has been legally charged with “managing” the forest for economic advantage since colonial times. The FRA has recently been weakened or contradicted by new laws, regulations, and decrees, including the Compensatory Afforestation Act, draft forest policy, and local forest guidelines.
The tax, forest, and tribal departments are not working together to implement the Act. Numerous regulations contradict with the FRA, thus it’s crucial to amend the rules and other laws, such the one governing who owns small amounts of forest output, in order to put the FRA into practice. Numerous state laws, including those governing excise and panchayats, must be changed. The failure of FRA to recognize community forest resource rights is another significant problem. The forest department is quite reluctant to acknowledge CFR Rights and share authority with Gram Sabha for the preservation and management of forest resources. The recently established draft forest policy, which is significantly biased towards forest commercialization, PPP models, decision-making to be dominated by technocrats, and forest residents having no position in decision-making, clearly reflects the government’s approach to forests.
There are numerous difficulties with implementation. Many claims are being denied, while some rights, either pending or limited, are acknowledged. The area that has been acknowledged has been significantly decreased from the area that has been falsely claimed. In a letter to state governments, the Ministry of Tribal Affairs urged them to convey rejection reasons and offer applicants the ability to appeal, both of which are rarely carried out.
In a nutshell, there has been a continuous attempt to undermine the rights and freedom of indigenous communities. In this fight for recognition of land and livelihood rights, it is crucial that their lives and sources of livelihoods are not disrupted. Though eviction is a concept alien to this jurisprudence, even that bare minimum has been denied in cases where communities are forced to be evicted. The very arcane notion of treating these communities like encroachers will not lead to any solution. The prime focus of governments should be on uniform and rigorous implementation of the FRA act throughout India and to make this happen, provide effective legal and paralegal support to make this happen.