We are herewith releasing the full text of the letter dated July 9, 2019 addressed to the Minister for Environment, Forest & Climate Chang, Prakash Javadekar by CPI(M) Polit Bureau Member, Brinda Karat against the proposed amendments to the Indian Forest Act, 1927.
(Hari Singh Kang)
For CPI(M) Central Committee Office
Shri Prakash Javadekar
Minister for Environment, Forest & Climate Change
Government of India
Dear Shri Prakash Javadekar ji,
Namaskar. I am writing to you in connection with the proposed amendments to the Indian Forest Act 1927. I am doing so even though these are in the nature of a first draft circulated by your Ministry, because your written statements in the Lok Sabha on 28-6-2019 (starred question No. 119) on these amendments tend to be quite misleading. You have defended the amendments.
You have sought to play down the extremely repressive measures proposed in the Act and have entirely ignored the bulldozing of the rights of tribal communities in particular. I feel it is therefore necessary to give you a more detailed critique of the amendments which may help to give a more correct picture to parliament.
The Forest Act 1927 was the instrument through which the British colonialists established Government ownership over forests and declared tribal communities to be encroachers thus giving legal sanction to the burden of historical injustices against tribal communities. The 91 clauses in the amendments now proposed, including entirely new sections, go even beyond what the British dared to do, by militarizing forest conservation.
The amendments criminalise every aspect of tribal life giving untrammeled powers to the forest bureaucracy to arrest without warrant and use arms to implement the law. Symbolic of this repressive approach is the inclusion of the Chief of Army Staff (s.89-(vii) ) as a member in the proposed National Forestry Board. Presumably the Chief of India's army now has the time to discuss how to "protect" forests not borders. On the other side the role of the gram sabha particularly in tribal inhabited areas so critical to management, conservation and preservation of forests and tribal rights has been erased altogether.
The amendments are a blueprint for centralization, commercialization and criminalization. The amendments will not help to conserve forests as is its declared aim. On the contrary, the amendments extinguish existing rights of tribals and other Traditional Forest Dwellers including those recognized in the Forest Rights Act, in the Wild Life Protection Act as amended in 2006, the Panchayat Extension to Scheduled Areas Act (PESAA), the Land Acquisition and Resettlement and Rehabilitation Act 2013 as well as the constitutional provisions in Schedule 5 and 6.
They are therefore, in toto, an affront to the Constitution, to democracy and to the legal framework to protect tribal rights in particular and those of traditional forest dwelling communities in general. Further, your Ministry has no jurisdiction over the rights of tribals for which the jurisdiction lies with the Ministry of Tribal Affairs. Yet through these amendments, your Ministry seeks to supercede all legislations related to tribal rights and make them subordinate to this proposed Act. This is totally unacceptable.
Some of the details are as follows:
(a) Erasing the role of Gram Sabha: It is highly objectionable that the theme that runs throughout the amendments is to equate tribals with other communities in relation to their rights over the forest such as through the redefinition of the word 'community" to deny the special status of tribals in relation to forests.
The amendments centralize power over decision making over forests and forests produce and all matters related to forests at all levels. The rights of the Gram Sabha are appropriated by the Forest bureaucracy, the State Government and the Central Government. In the entire set of amendments there is not a single amendment which recognizes the critical role of the gram sabha in forest conservation or which mandates the consent of the gram sabha in any decision pertaining to the forests. India has moved far beyond 1927 in recognizing the crucial role played by gram sabhas particularly in tribal inhabited areas. But in these amendments all this is erased. Even in areas declared to be "forest villages" (s 28) rights of gram sabhas are taken away and the management of forests is to be handed over to committees appointed by the forest bureaucracy in "consultation" with the gram sabha and not with their mandatory consent.
(b) Huge Powers to Forest Bureaucracy to Extinguish Recognized Rights : The amendments from s.6 to s.15 concentrate powers in the forest bureaucracy to an unprecedented extent including the right to acquire land. For example, a Forest Settlement Officer (FSO) has the power to decide on claims and rights, has the power to decide on shifting cultivation rights and the power to decide access to forest produce. He can acquire any land without public hearings under s.11. Under s.16 the FSO has the power even to commute all rights hitherto enjoyed by forest dwellers.
As far as recognized rights under the FRA are concerned, the amendments
(s.22) give the right to the FSO to record such rights which is totally out of the jurisdiction of your Ministry and will make tribals vulnerable to the Forest bureaucracy. In s.22A (2) all rights under FRA can be extinguished or modified if the State Government in consultation with the Central Government decide that this is in the interest of conservation. Here again there is no consultation process, no mandatory right to consent, it is totally arbitrary. This goes against every other law including for tiger reserves which has a full process of consultation and consent. Under this amendment, FRA can be scrapped. Further, the right to forest produce is also made conditional under s.14 in which an FSO can decide the exact amount of minor forest produce that can be used by tribal communities and OTFDs. Further (in s. 69) the presumption is that the forest produce belongs to the Government.
This again is in total violation of the FRA. Thus these amendments give overriding powers to the forest bureaucracy to eliminate all rights of tribals including modification or scrapping of rights under the FRA and other legislations.
(c) Central Government's Enhanced Powers: A new section 76 has been added that gives the Central Government overriding powers to take all decisions for the "protection and management" of forests as it deems fit. The Central Government has the powers to make all Rules pertaining to crucial areas such as shifting cultivation, gathering of forest produce, "rationalization" of rights. All decisions of State Governments are subject to approval by the Central Government and in case of difference in Rules prepared the Central Governments and its decisions will prevail (77.2). The Central Government has also included for itself the right to notify Reserved Forests (s 3.(2), Protected Forests (s29. (b) and the right to decide working plans for the newly introduced Production Forests (s.34C (3), and also to direct State Governments to do so. The power to declare any forest as "conservation forest" or "community reserve" - new sections - also has been taken by the Central Government. All these amendments constitute an encroachment on the rights of the States.
Most of these provisions in the sections dealing with protected forests are similar in the section dealing with Reserved Forests and are equally objectionable.
(2) Criminalisation of All Aspects of Tribal Life: (a) The amendments actually criminalize all aspects of tribal life.
There is a long list of prohibited acts under s.26 from cultivation of forest land to fishing, right to pasture, right to forest produce unless the person (tribal) has an authorized certificate from the Forest officer. Each and every aspect of tribal life is prohibited and further, is considered an offence unless the tribal can show "authorization" to the satisfaction of the forest department. In Chapter IX which concerns Procedures for Dealing with Forest Offences, section after sections gives draconian powers to the forest bureaucracy. S. 66 and all its sub-sections, some of which have been mentioned at the beginning of this letter are particularly obnoxious. S 66 (2) gives carte blanche to the forest officers the right to use guns to shoot at anyone even suspected of committing a forest offence and provide indemnity for those using the firearms, to arrest any suspect without a warrant (s.64) to search premises without a warrant (s.66a) and to shift the burden of proof on to the accused (s.66D): Sub-clause clauses 66 b criminalize all protests under the category of abetment.
In addition, there are further powers of the bureaucracy and the police to evict any person from land in their occupation if the forest officer is not satisfied as in s 26.4. The evictee can only appeal after the action. In all such cases the decision of the Sessions Court is final. Thus a tribal who is evicted does not even have the right to appeal to a higher court (s. 52 D).
There is also a clause which mandates the building of an "infrastructure" to implement the Act through building of "lock up rooms" inside the forests, to have arms, armaments, helmets etc. In other words, to build jails inside the forests. This instruction is matched by the unprecedented recognition of so-called confessions of an accused in custody to be permitted as evidence under s.64c. This is not permitted even in the most heinous crimes but it is introduced as an amendment here. Further any person who does not report or prevent such a crime is also liable to punishment under s. 79 and all their rights can be extinguished. Thus the entire tribal community in any particular area can lose all their rights under this section.
A scenario that arises from all these amendments can be that the forest official locks up the suspect who is arrested without a warrant, puts him in the forest lockup which has all the necessary equipment, extracts a confession from the suspect, places it in the relevant court where it is admissible evidence through a summary trial devoid of all procedures granted by s 67. Not only does he lose all rights, but the entire community may also lose their rights.
The penalties detailed in s78 are also high. For example offences which carried a one month sentence have been increased to one year and offenses which had a sentence of one year have been increased to three to five years.
These amendments will force tribals, in particular tribal women who are the main gatherers of forest produce, into extremely vulnerable positions and constitute an extreme injustice to the rights and dignity of tribals and to the minimum democratic rights they are entitled to as citizens of India.
(3) Commercialisation and privatisation of Forests: For all its claims of preserving and expanding forests and forest cover, the amendments include a new section (Ch IVA) of Production Forests which is nothing but commercialisation not conservation of forests. The State Government has the right under this chapter to declare a certain part of any forest, including reserved and protected forests as production forests without any consultation with the gram sabhas affected. Here land will be given out on lease to commercial interests to grow trees, raise plantations for commercial use, specifically timber and medicinal plants. It is well known that big companies have an interest in taking over forest land for growing commercially important herbal and other plants. This entire section of amendments is a gift to such interests. Further in these Production Forest areas the State Government can levy cess, taxes, duties and so on which will go directly to the State Government for development of forests.
On the one hand you handover forests to private interests and on the other you take money in the name of developing conservation but without the participation of tribals or their gram sabhas who have no right to decide how such funds are to be utilized.
Ch 5, instead of takeover of private forests, actually gives recognition and rights to ownership of private forests. Both these aspects in the sections mentioned above expose the claims of the Ministry that the amendments are in the interests of conservation.
There are many other amendments which are objectionable. Taken as a whole, the amendments cannot be accepted. We request you to withdraw the amendments. Instead it would be in the interests of forest conservation to bring the Forest Act 1927 in conformity with the FRA and other related laws that seek to redress the historical injustices faced by tribal communities, now being perpetrated in modern forms in the name of development on the one hand and in the name of conservation on the other.