16, Jul 2019 | Dr Palla Trinadha Rao
The Telangana Government is contemplating to replace the Telangana Forest Act 1967 with a new law – the Telangana Forest Act (TFA) 2019, trampling the rights of adivasis ensured under the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA Act 2006) and Panchayats Extension to Schedule Area (PESA) Act 1996 both of which are central acts.
The FRA recognizes and vests diverse preexisting rights to forest dwelling Scheduled Tribes (STs) and Other Traditional Forest Dwellers (OTFDs) who have been residing in such forests for generations but whose rights could not be vested.
The proposed law confers a vast array of almost unfettered powers to the forest officials, and conflicts with and tramples the central laws as FRA and PESA which it should not, while promising to serve corporate interests welcoming them with open arms. The proposed law is in almost complete conflict with the National Forest Policy of 1988 which talks of symbiotic relationship of tribals with forests and serving community needs to be the prime purpose of forests.
If enacted, the law would surely escalate the simmering tension in the forest region of the State due to non-compliance by forest officials with FRA and their violations, converting the forests into a conflict zone.
From trustee of the forests, to servers of corporate interests
The major shift proposed by the law is in the creation of a new category of forests “Production Forests” for production of timber, pulp wood, fire wood etc in reserved, protected and unclassified forests to make these raw materials available to the industries. Private companies and the corporate sector are allowed to grow the forest products in private and institutional lands, and transport the harvested crops.
The Forest Department is to dovetail market interventions with agro forestry activities in such private lands. The Forest Department is to serve the corporate and business interests primarily. This can effectively be done only when the forests are securely fully free of any encumbrance.
Unbridled powers to forest bureaucracy
The forest officials can use fire arms and cause injury to any person and take possession of property in the name of commission and prevention of commission of any offence under the proposed law and the Wild Life (Protection) Act 1972. Moreover, the officials are covered by providing impunity for their actions without prior sanction from the State Government. And the State Government would not sanction prosecution unless the Executive Magistrate conducts an inquiry.
This provides ample scope to escape prosecution by managing the local Tahsildars and other revenue officials. The proposed Act does not permit the State Government to with draw the cases filed under the Principal Act, against the accused with the permission of the court.
This is contrary to the procedure contemplated under Section 321 CrPC which permits the prosecution to withdraw the criminal cases filed with the permission of the court. The proposed Act also provides impunity to the forest officials for any act done by them in good faith which will not be considered as an offence.
The onus of proof of innocence is sought to be the burden of the accused in all prosecution cases turning on its head the well established dictum of ‘innocence until proved guilty’. The burden of proof lies always on the prosecution in all criminal cases to prove that the case filed against the accused is beyond any reasonable doubt.
This would virtually mean that enjoyment of forest rights under PESA and FRA could very well become, on a routine basis, an alleged forest offence which will require the right holders to prove again and again their innocence and a part of the rightful enjoyment of rights. With no consequences inbuilt in the law for false allegation, this would predictably become an instrument to smoke out and drive the forest dwellers away from the forests.
The proposed law gives power to the police, revenue and the forest officials to arrest and seize equipments if they believe is a result of or being used to commit a forest offence. Such powers for mere suspicion is a open freeway for abuse of the power. The State Government is to develop infrastructure for lockup rooms, transportation of accused, armories, ammunitions, etc.
The confessional statement recorded by the forest official from the accused is admissible as an evidence, which is against the cardinal legal principle of Section 25 and 26 of Indian Evidence Act which says that the confessional statement involving incriminatory acts is not admissible in the Courts. This is an open invite for extraction of confession through inducement or coercion which would incarcerate even innocent tribals in false forest cases.
Snuffing out rights, tweeking procedures
The draft Telangana Forest Act (TFA) 2019 gives enormous powers to the Forest Settlement Officer (FSO) from forest department, much more than what the Britishers did through the Indian Forest Act of 1927.
The authority to determine the rights of any persons over any land during the declaration of Reserve Forests that is vested with the Revenue Divisional Officer under the Telangana Forest Act 1967 is now to be handed over to the Forest Officials. Moreover, the time limit to give objections by the affected people to the constitution of Reserve Forest (RF) is to be halved from the existing six months period to three months.
The rights of persons will be extinguished if no claim is preferred within the time limit. The same FSO will also act as land acquisition officer to acquire the lands or enter into agreement with the owner to surrender his rights under the proposed Act. The Revenue officials are to be kept out from adjudicating the claims at preliminary stage itself and also in the acquisition of lands.
No longer can the person aggrieved by the rejection of claims by the FSO can go to the District Court for final orders as is possible under the existing 1967 Act. Instead, the appeal is to be made only to the District Collector. The time limit for filing the appeal is also halved to 3 months from 6 months. The aggrieved person can appeal to the State Government against the order of the District Collector for the revision. Thus the judicial intervention is kept outside of the framework of adjudication.
The proposed draft prohibits the entry into reserved forests except for livelihood activities for the rights recognized under the FRA. This in effect violates the authority of the rights holders and the Gram Sabha to protect, conserve, manage and regulate forest use under Section 3(1)(i) and 5 under FRA.
It is altogether another fact, that at present the determination of rights of individuals or communities under FRA are far from complete or correct. The proposed law further imposes restrictions on the tribals contrary to the FRA.
The State Government is being empowered to notify the trees or forest produce, grazing lands etc in protected forests and regulate their use or even suspend the rights of persons in violation of FRA. The forest officials can also evict the tribals from the forests lands if they feel that their activity is contrary to the Rules of Protected Forest.
The proposed law completely tramples on tribal rights in the Scheduled Areas in the exercise of their power in private lands for removal of dead or fallen trees to do anything for making agricultural implements as before. Further, the proposed law removes the right of tribals to cut trees in their private lands to develop their lands with the permission of the District Collector.
Modeled almost exact on the lines of the draft Bill to comprehensively amend the Indian Forest Act, 1927 that the Ministry of Environment, Forest & Climate Change circulated on March 7 this year to the Principal Chief Conservators of Forests of the states for comments by June 6 which has now been extended to August 17, one wonders why this tearing hurry to make this the law for the State when one does not even know whether the centre would enact the proposed Bill as given now.
If not, anyway some or many provisions of the proposed state enactment would become legally redundant. It does not make legal sense anyway. Perhaps the overzealous bureaucracy has gone overboard. Hope good political and legal sense prevails.
*The author is a tribal rights activist, lawyer and researcher based in Rajahmundry, Andhra Pradesh