“INDIAN FOREST LAW IN THE CONTEXT OF TRIBAL PEOPLE”

- SURAJ MANE
17BAL126

INTRODUCTION

The dictionary meaning of forest is “A dense growth of trees and shrubs covering a large area”.i
It is difficult to define the word “forest” as it differs from place to place and region to region
based upon the objectives of management, vegetation, composition, altitude etc and there are
many definitions of forest around worldwide. Forest may differ from one another as there are
many types of forest around the globe which is determined by latitude, rainfall patterns, soil etc.

In Forest area many tribal communities and other forest dwellers are living in and around the
forest as it is their home. Tribal peoples are found all over the world and they are called by
different name like tribal, primitive, indigenous etc. India has large number of tribal peoples
across the country like Gonds, Bhills, Oraons and so on.

After the advent of British, the Forest Acts of 1865 and 1927 stopped the traditional rights of
tribal’s and the forest dwellers which they were exercising in the forest and gave the control of
forest to the government. After the Independence the National Forest Policy of 1952, the wildlife
protection Act 1972, and the forest conservation act 1980 wiped out little problems of the forest
communities but the village communities have been separated from their old traditional practices
in forest which further branded this forest dwellers as “encroachers and illegal occupants”.

Indian Forest Act 1927 and other State Legislation seeks to ensure protection of forest by giving
the control of forest to government. However, the tribal people living in forest were given some
rights for years; the government had to restrain their rights to protect the forest from
deterioration. Under Indian Forest Act the State Government is authorized to exercise control
over such rights by classifying forest into 3 parts i.e. reserved forest, protected forest and village
forest. In reserved forest area there was only few or no rights of user vested in persons. In
protected area there were many rights to the user. In village area the government has the least
control over it as this area is assigned for the village community.

THE SCHEDULED TRIBE AND OTHER TRADITIONAL FOREST DWELLERS

(RECOGNITION OF FOREST RIGHTS) ACT, 2006

This act recognizes and gives rights and occupation in forest land to scheduled tribe and
traditional forest dwellers who have been residing in forest from generations and for the
protection of their rights this act was made.ii

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FOREST RIGHTS

 Right to live and hold the forest land under the individual or common occupation for
habitation or for self cultivation for livelihood by individual or the members of forest
dwelling communities.
 Right to ownership, collect or access, use or dispose forest produces which has been
collected traditionally within or from the boundary of the forest.
 Right to use of water bodies products such as fish, grazing and traditional seasonal
resources access to communities.
 Rights including community tenures of habitat and habitation for primitive tribal groups
and pre-agriculture communities.
 Right over disputed land situated in any state.
 Rights over Pattas or leases or grants issued by any local authorities or any state
government on forest land.
 Rights of settlement and conversion of all forest villages, old habitations, unsurveyed
villages and other villages in forest, whether recorded, notified or not into revenue
villages.
 Right to protect, regenerate or conserve or manage any community forest recourses
which they have been traditionally protecting and conserving for sustainable.
 Rights to access to biodiversity and community right to intellectual property and
traditional knowledge related to biodiversity and cultural diversity.
 Right to in situ rehabilitation including alternative land in cases where the scheduled
tribes and other traditional forest dwellers have been illegally evicted from forest land of
any description without receiving their legal entitlement to rehabilitation prior to the 13 th
December, 2005.
This act came into force because scheduled tribe and forest dwelling communities were
facing historical injustice as they were not given rights into their land which is their home
saying that they are destroying the forest as it was colonial forest law which was misused
by British for their commercial purpose by taking the forest into government control.
Therefore, it was necessary to make such law for scheduled tribe and traditional forest
dwelling communities.

LAW AND CONSTITUTION: EVICTION OF FOREST COMMUNITIESiii

To evict forest dwellers and communities form forest which is their home on which they are
dependent on the grounds that they are treat to forest, wild life, national and global environment
it is difficult to imagine.

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The Indian Forest Act 1927 gives power to state to exercise the control over forest recourses and
the ownership. Forest were classed into three parts i.e. Reserved, Protected and Village Forest
and in reserved and protected forest was divided it take away the rights of the scheduled tribe
and traditional forest dwelling communities there were few or no rights given to them.

The notion of “common property” was forced aside and was replaced by state control in the
name of interest which was later on used for the commercial purpose of the state. The forest act
says many things that state may prohibit forest communities doing anything in forest but there
was no such limitation on state like state has the absolute control over the forest and the forest is
state property. This was an illogical law as the forest dwelling communities were not exploiting
the forest as it was their home and who destroy their home and in forest they were not able to use
the recourses and they were sent to exile this act take away many rights from the forest dwelling
communities.

Post-Independence the constitution of free Indian was promulgated 1950; the continuity of same
forest law was difficult because Article 372 of Indian Constitution says “that all the law in force
in the territory of India immediately before the commencement of this constitution shall continue
in force therein until altered or replaced or amended...”

In 1950s and 1960s the state gave emphasis on industrial growth as development so in the name
of development industries were allowed to access forest recourses on very low rate.

After the UN Conference on Human Environment held Stockholm in June 1972 the parliament
enacted the Air (Prevention and Control Pollution) Act in 1981 and in 1974 the Water
(Prevention and Control of pollution) Act this acts made to reduce the problem of pollution
urbanization was increasing due to growth of industries. Industries cause harm to environment
and yet blame is given to the forest communities.

Wild Life Protection Act was passed in 1972 and was amended in 1982 and 1991. 1991 act was
made for the harmonizing the needs of tribal people and protection of wildlife.

Two Articles were inserted by the 42nd constitution amendment act 1976

 Article 48A of directive principles of state policy it says that “State shall try to protect
and make the environment better and to safeguard the forest and wildlife of country”.
 Article 51A was also introduced in fundamental a duty which says in point (g) “It shall be
duty of every citizen of India to safeguard and make environment better, forest, lakes,
wildlife and the other living creature”.

As there is always development in system according to time everything changes so does the
judiciary was developing in the process the Article 21 was expanded (Right to dignity, health,
clean environment, right to education, shelter) was expanded in it.

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In S.P Gupta v. Union of India (1981 Supp SCC 81) the term PIL was introduced to provide
justice to illiterate people and to those people who are not aware about their rights they are
ignorant about rights and will remain silent if nobody goes to them. Even for the environmental
issues PIL were filled and court tried to solve the matter which came in the court.

Therefore, even there are constitution provisions made but still the forest dwellers are being
evicted from the forest and the state is making benefit out of it in terms of revenue and for the
development they are causing harm to ecological system.

FOREST LEGISLATION AND ENVIORNMENT PROTECTION

A state government has power to make laws to prohibit activities such as clearing of vegetation,
pasturing cattle, or breaking the tress or clearing the land for doing cultivation in forest.
However, it strange those provisions which are made to safeguard the environment are only
enforceable against the private individual and when government activities affect the environment
it not enforceable.iv

FOREST CONSERVATION ACT 1980

Even the restriction are imposed by Forest Conservation Act 1980 v, the government and its
agenesis are still engaged in such activities like construction of dams, roads etc. in reserved
forest area without realizing the effects of such acts on forest environment. The Forest
Conservation Act 1980 prohibits government and other authorities from using forest land for non
forest use without taking the approval from the Central Government vi and the central government
refuse or may grantvii the approval after taking into consideration of ecological characteristics of
forest.

This act has given environment value of forest and is a welcome measure for deforestation. This
act has also reduced the power of state government however; the term non forest has given
chance to state government to abuse the power as it grants exemption from getting approval for
assignment of forest land to any authority owned or controlled by government which is another
loophole in this act.

There are many instances where the volition of forest conservation act is done intentionally for
preventing it the penal provision were incorporated in Act of 1988 the punishment for it was
merely fifteen days and such punishment is inadequate to enforce compliance.viii

Therefore, the provision contained in Forest Conservation Act for the prohibition of acts is alone
enough to protect the forest from deterioration some new strategies should be evolved and
incorporated in the law for the development of the forest.

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SUSTAINABLE DEVELOPMENT

As the forest has abundant recourses like timber, stones, minerals etc so it cannot be ignored it is
major source of revenue for government and for industrial development. Construction of
hydroelectric and irrigation projects are carried out and in the name of development forest is
exploited ignoring the environmental value, vegetation is likely to disappear from the earth living
human life in peril.

Both factors should taken into consideration we cannot ignore the development and environment
issue also if total ban is imposed on forest it will hamper the development.

How to balance between these?

To some extend to resolve the situation Scientific line (Conservation) ix as development with
conservation ensures sustainable developmentx with environment protection. We can collect
some amount of revenue without hampering the forest recourses by not destroying their
regeneration potential. In case of clearing forest land for development activities their care should
taken that it should not hamper the eco system and the environment that it will cause harm to
human life. Basically development activities should harm the environment which is the life
supporting system of human being.

RURAL LITIGATION AND ENTITLMENT KENDRA V. STATE OF U.Pxi

The Supreme Court of India made an attempt to solve the conflict between development and
environment as RLEK filed a PIL in Supreme Court of destructive lime stone quarrying activities
going in Doon Valley of Dehradun district. Supreme Court after considering all the factors of
ecological and environmental directed to appoint committees to investigate the problem if the
quarrying is permitted in that area what will be the problems.

After the committees submitted their reports court ordered the closure of certain mines. Court
favored sustainable development. As from Doon Valley lime stone quarried was very essential to
manufacture defense armaments it will affect the defense of the country if total ban was imposed
on quarrying.xii

Court directed the government to file affidavit too see whether there is an alternative source is
there or not to meet the defense need. In 1988 the court directed to close all the mines in that area
except three and the owners were said to give and undertaking that it should not harm the
ecological system and the environment they should make the balance when they are carrying the
mining activities.

Therefore, even though judiciary is trying to protect and safeguard the environment it is not
enough to protect the forest as court look into only that matter which came before it then what
about the cases which are not brought before the court. Still there is some loophole in protecting
the forest.

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 HINDRANCES IN TRIBAL DEVELOPMENT

 “National Development”:  In the name of national development the government has

forgot the interest of tribal people the mobilization of tribal’s for government. Therefore,
tribal interest and welfare were invariably sacrificed in the name of national development. 
 Tribes have failed to safeguard and promote their language, culture and religion: The
Article 29 of the Indian Constitution says that a cultural or linguistic minority has the right
to conserve their language and culture. The state cannot compel anyone by law to follow
any culture or language. Tough the state has not compelled them to follow any language or
culture but the steps which are taken by states are in accordance with the provisions laid
down in Indian Constitution. For example the schooling it is done in dominant regional
community language of the particular state. 
 Lack of institutionalized arrangements: State is not giving importance to protect the
language and culture because of it tribes are losing knowledge of their own culture and
language and they are not self sufficient enough to promote their culture and
language. Because there is lack of control over human, organizational and financial
resources, the tribes and the forest dwellers have not been able to take effective measures.
Some support is made available by state that’s the reason they are able to safeguard their
culture to some extent. In western, northern and southern part of India, there has been much
more erosion of the tribal language and culture. In eastern India, especially the northeast, the
situation is much better. As in north- east India, there is kind of institutionalized
arrangement that facilitated such development. 
 Exclusion and Marginalization of Tribes: It is irony that even though we have laws for
tribal people the process of marginalization of the tribe has gone on unabated. We can say
that the one of the root cause of such marginalization is law itself as it has many loopholes
in it. Even we can see that majority of tribal people don’t know to read and write and they
have no tradition to keeping record of such laws they are not aware about proceedings,
language and practice of court it is alien to them. As there is lack of awareness the other
people have taken advantage of such laws and have been depriving tribal peoples from their
land.
 Tribal Interest vs. Public Interest: Laws have been also made for tribal people to protect
them and their rights as laws are meant for general citizens and for human beings. Indeed,
rights meant for tribes have invariably been pitied against citizenship rights and more
importantly human rights. In the process, specific laws meant for a group, even though
marginalized, have invariably come to be subjected to general laws. On the same vein are
the laws aimed at protecting tribes and those aimed at public interest such as land
acquisition act, conservation act, forest act, wildlife sanctuary act, etc. Tribal people have
sacrificed to the greater cause of the nation and public interest.

HUMAN RIGHT AS ISSUExiii

The human privileges the indigenous individuals and groups of people are unequivocally set out
in the ILO Indigenous and Tribal Peoples Convention (No. 169), the Universal Declaration of
Human Rights, the International Covenants, the Convention on the Elimination of All Forms of
Racial Discrimination, the Convention on the Rights of the Child, and other generally adhere to
global human rights settlements and Declarations. They incorporate the accompanying

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indissoluble, associated and interrelated human rights.
The human ideal to opportunity from any refinement, avoidance, confinement or inclination
dependent on their indigenous status which has the reason or impact of hindering the pleasure in
human rights and central opportunities that is:

 The human right to freedom from discrimination in access to housing, education, social
services, health care or employment.
 The human right to equal recognition as a person before the law, to equality before the
courts, and to equal protection of the law.
 The human right of indigenous peoples to exist.
 The human right to freedom from genocide and ‘ethnic cleansing’.
 The human right to livelihood and work which is freely chosen and to subsistence and
access to land to which they have traditionally had access and relied upon for subsistence.
 The human right to maintain their distinctive spiritual and material relationship with the
lands, to own land individually and in community with others, and to transfer land rights
according to their own customs.
 The human right to use manages and safeguards the natural resources pertaining to their
lands.
 The human right to freedom of association.
 The human right to enjoy and develop their own culture and language.
 The human right to establish and maintain their own schools and other training and
educational institutions, and to teach and receive training in their own languages.
 The human right to full and effective participation in shaping decisions and policies
concerning their group and community, at the local, national and international levels,
including policies relating to economic and social development.
 The human right to self-determination and autonomy over all matters internal to the
group, including in the fields of culture, religion, and local government.

In acknowledgment of the way that indigenous and innate people groups are probably going to
be oppressed in numerous zones, the primary general, central rule of The Tribal People's
Convention No. 169 is non-segregation. Article 3 of the Convention expresses that indigenous
people groups have the privilege to appreciate the full proportion of human rights and central
opportunities without deterrent or separation. In Article 4, the Convention likewise ensures
delight in the general privileges of citizenship without separation. Another guideline in the
Convention concerns the utilization of every one of its arrangements to male and female
indigenous people without segregation (Article 3). Article 20 accommodates counteractive action
of oppression indigenous laborers.

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In light of the helpless circumstance of indigenous and ancestral people groups, Article 4 of the
Convention calls for uncommon measures to be received to defend the people, establishments,
property, work, societies and condition of these people groups. What's more, the Convention
stipulates that these unique measures ought not to conflict with the free wishes of indigenous
people groups.

Acknowledgment of the social and different specificities of indigenous and ancestral people
groups and meeting of the Tribal People's tradition No. 169

Indigenous and ancestral people groups' societies and characters frame a basic piece of their
lives. Their lifestyles, traditions and conventions, foundations, standard laws, types of land
utilize and types of social association are generally not the same as those of the predominant
populace. The Convention perceives these distinctions, and intends to guarantee that they are
ensured and considered when any measures are being embraced that are probably going to affect
these people groups. The soul of interview and support comprises the foundation of Convention
No. 169 on which every one of its arrangements is based. The Convention necessitates that
indigenous and innate people groups are counseled on issues that influence them. It likewise
necessitates that these people groups can take part in free, earlier and educated cooperation in
strategy and advancement forms that influence them. The standards of meeting and interest in
Convention No. 169 relate not exclusively to particular advancement ventures, yet in addition to
more extensive inquiries of administration, and the investment of indigenous and ancestral
people groups out in the open life.

In Article 6, the Convention gives a rule about how counsel with indigenous and ancestral people
groups ought to be directed:

Discussion with indigenous people groups ought to be attempted through proper systems, in
compliance with common decency, and through the agent institutions of these people groups;

The people groups included ought to have the chance to take an interest unreservedly at all levels
in the plan, execution and assessment of measures and projects that influence them specifically;

Another imperative segment of the idea of interview is that of representatively. In the event that
a fitting meeting process isn't produced with the indigenous and innate establishments or
associations that are genuinely illustrative of the people groups being referred to, at that point the
subsequent discussions would not consent to the prerequisites of the Convention.

The Convention additionally indicates singular conditions in which meeting with indigenous and
inborn people groups is a commitment.

Interview ought to be embraced in accordance with some basic honesty, with the goal of
accomplishing understanding. The gatherings included should look to set up a discourse enabling
them to discover proper arrangements in a climate of shared regard and full cooperation.

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Compelling counsel is interview in which those concerned hav e a chance to impact the choice
taken. This implies genuine and auspicious interview. For instance, a straightforward data
meeting does not establish genuine discussion, nor completes a gathering that is led in a dialect
that the indigenous people groups present don't get it.

The difficulties of actualizing a proper procedure of counsel with indigenous people groups have
been the subject of various perceptions of the ILO's Committee of Experts, and in addition other
supervisory methodology of the ILO, which the ILO has now ordered in a Digest. Satisfactory
conference is the key for accomplishing a productive discourse and for the compelling goals of
the different difficulties related with the execution of the privileges of indigenous and innate
people groups.

CONCLUSION

Initially the forest law in India was made by British people and their intension was to make
revenue from forest. The law had taken away the rights of tribal people and other traditional
dwelling communities they were not able to access forest recourses they were being evicted from
the forest. Tribal people were not able to promote their language and culture as majority of
people were not educated and they were not self sufficient enough to preserve their language and
culture.

As some people says that the tribal and the other traditional dwelling communities does harm to
forest firstly it is home for them why will they destroy their own house and the tribal people
know how to use the recourses properly what should be done when the fire is caught how to cut
the tree what should be done when wild animals comes etc they are very much used to it then the
forest officer residing over there. State shall not forget these things it should be kept into the
mind that it is their home where they want to live.

State has given the power to make the laws according to the needs there was no central law for
forest that was one of the reasons for not getting rights to tribal communities and the other
people use the benefits of it state should make the central law which should be applicable all
over the India and only some powers should be given to the state. Law should maintain the
balance between the tribal communities and their basic right like land access to basic resources
of the forest and state itself should be able use the recourse to generate the revenue from the
forest.

State should take care of the environment as it is base for human life deforestation must taken
care about strict laws should be make for harming the environment and even state itself should
not do pollution it should take care about it. State shall not sacrifice the environment pollution or
water pollution for the sake of earning some money. Strict laws should be made in violation the
environment.

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Therefore, tribal people have paid and are still paying the biggest price for development in India.
They are subsidizing the cost of development through sacrifice of their land, traditions and
cultures so that the urban elites can enjoy comfortable lifestyle. The government needs to enliven
the various constitutional and legislative provisions so that this community can live to its fullest.

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i
D.VENKATESWARLU, DEFINITION OF FORESTS - A REVIEW (Available at:
th
http://www.terisas.ac.in/mct/pdf/assignment/VENKATESWARLU.pdf, Last accessed on 30 October, 2018 at 11:45 PM
IST)
ii
Objects and reasons, THE SCHEDULED TRIBE AND OTHER TRADITIONAL FOREST DWELLERS
(RECOGNITION OF FOREST RIGHTS) ACT, 2006
iii
Usha ramanathan, law and the constitution: eviction of forest, international environmental law research centre,
http://www.ielrc.org/content/f0401.htm (last visited 30-10-2018 9:00 pm)
iv
Indian Forest ACt 1927. 8.35. See corresponding provisions in Kerala Forest Act 1961, $.33: Karnataka Forest Act L903.
5.39; Tamil Nadu Forest Act 1664. $.29: Raajastnan Forest Act 1953. $.35: Orissa Forest Act L972. 5.39 and Nagaland
Forest Act 196a, $.36
v
Act No.09 of l9sU. see for text, Appendix I
vi
ibid.
vii
Ibid.
viii
Forest (conservation) Act S.3—A as amended by Forest (Conservation) Amendment Act 1988 (Act 69 of 1988).
ix
T.N.Khoshoo Environmental concern and strategies. (1988). p.629
x
Journal of energy and natural resources law, vol-9 (1991), 1 at p-3
xi
A.I.R. 1985 S.C. 65
xii
A.I.R. 1987 S.C.242
xiii
Convention concerning Indigenous and Tribal Peoples in Independent Countries (Entry into force: 05 Sep 1991)