Law and the Constitution: Eviction of Forest Communities

The move to evict forest dwellers and forest dependent communities from the forest is an unsubtle attempt at re-imagining their role as a foe of the forest and of wild life, and as a threat to national, and global, environment. This is based not on empirical fact, but on what may be termed ‘institutionalised prejudice’. A version of environmentalism has been foisted on forest communities, conspicuously through the court, by which forests become a bureaucratic enterprise to the exclusion of those who, over generations, have been part of forest life, and whose fate and future are linked inextricably with the forest. In one sense, this is a continuation of the legal regime that was imprinted into the statute books, such as the Indian Forest Act 1927 (which had a predecessor in the Indian Forest Act 1878). But even this colonial attempt to control and commercialise forests did not go as far as the exiling of forest communities that is presently being ruthlessly executed.

The Indian Forest Act 1927 sanctions the state to exercise of control over the forests, and to assert a species of ownership. Forests were classed as reserve forests, village forests and protected forests. Enacted to assert state proprietorship, and ownership, over forest resources, the Forest Act ‘reserved’, ‘protected’ and declared forests in which it then shrank the rights of the forest communities as the state deemed apt. In this process, notions of common property, and use, were forced aside, and replaced by state control to serve the interests, then usually commercial and expansionist, of the state. The relationship of forest communities to the forest were reductively perceived as interests and rights that could be ‘settled’. In the process of settling forest rights, forest communities were reduced to claimants. Even as the Forest Act spells out the many things that the state may prohibit forest communities from doing in relationship to the forest, there were no such limitations placed on the state. The denuding of forest resources may be traced in part to this absence, and in further part to the rapacious nature of industries’ needs and use of forest resources. Despite this, it is the forest communities, who are not outsiders and whose lexicon has not altered from ‘use’ to ‘exploitation’ of forest resources, who are being sent into exile. This is the illogic of the law.

Forest communities have had to wage a continuing battle against being illegalised, and against their forest-related activity being criminalised, even as the Forest Act 1927 ensured this entrenching of state control as also of the reductionist approach to the rights of forest communities. Yet, when the Constitution of free India was promulgated in 1950, the ‘continuity’ that was accorded an importance so that there would be no vacuum where the law had been, allowed the Forest Act to continue as it was. This happened because Art. 372 of the Constitution declared 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 the 1950s and 1960s, the colonial agenda of commercial exploitation of forest by the state for its expansionist projects, was refashioned to include an emphasis on industrial growth as development. So it is that industry was allowed access to forests, at pitifully low rates, to clear forest growth for its purposes.

It was not until the UN Conference on the Human Environment held in Stockholm in June 1972 that ‘environment’ came on to the policy makers’ agenda. In 1981, Parliament enacted the Air (Prevention and Control of Pollution) Act. Earlier, in 1974 the Water (Prevention and Control of Pollution) Act had been enacted by Parliament. It is instructive to read the Statement of Objects and Reasons for these two legislations: both categorically trace the problem of pollution and deterioration of air, and of water sources, to ‘the growth of industries and the increasing tendency to urbanisation’ (Water Act) and ‘the increasing industrialisation’ (Air Act). Yet, when the depleting forest cover was under scrutiny, the predominant role played by industry in the loss of forest was not given centrality. There is no other way that the handing over of forest land to Harihar Polyfibres, after the importance of forest conservation had been set into the statute – in the Forest (Conservation) Act 1980 – can be explained.

The Forest (Conservation) Act 1980, enacted to shift, and centralise, the power over forests was intended to check deforestation which, the Statement of Objects and Reasons states, ‘had been taking place on a large scale in the country’. The Act, like the Ordinance that preceded it, ‘made the prior approval of the Central Government necessary for dereservation of reserved forests and for use of forest land for non-forest purposes.’ The Act also provides for the constitution of an advisory committee to advise the Central government with regard to grant of such approval. Since the Act came into force, it is mining interests that have been liberally represented in the cases before courts asking for permission to continue with mining despite the devastating effect mining has on land. Increasingly, the large scale displacement that ‘development projects’ such as dams engender, have had the consequence of state governments seeking the central government’s permission to de-reserve forest areas so as to provide rehabilitation sites to the displaced: the option of altering the project of what turns out to be ‘destructive development’ has almost never been considered.

It is in this context of industry, mining interests and ‘project development’ which last, in the case of dams as an example, invariably drowns forest resources and demands diversion of those forests that escape submergence, in which ‘conservation’ is being
spoken. Yet, it is the people of the forest who have been projected as its arch depredator.

In 1972, the Wild Life (Protection) Act was passed. The Act was amended twice, once in 1982, and again in 1991. Even as the court sanctions, even directs, the forced eviction of forest communities, it is instructive to recall what the Statement of Objects and Reasons to the 1991 Act said: ‘… 6. While making the provisions of the Act more effective and stringent due regard has also been given to the rights of the local people, particularly the tribals. It is being provided that except for the areas under reserve forests, (where the rights of the people have already been settled) and the territorial waters, no area can be declared as sanctuary unless the rights of the people have been settled. State Wild Life Advisory Boards are also being made responsible for suggesting ways and means to harmonise the needs of tribals and the protection of wildlife.’ Local people, especially tribals, are, according to this parliamentary dictum, to be taken into the reckoning; even if the colonial vestige of ‘settling’ of rights has been retained. And the effort is to be towards harmonising the interests of the tribals with that of the forest; not tearing them asunder. Yet, when the order of the Supreme Court was interpreted to mean forcible eviction of forest communities, this parliamentary purpose was not even acknowledged.

The 42 nd Constitution Amendment Act, 1976 inserted Article 48A into the Directive Principles of State Policy: ‘The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.’ And Article 51A, also introduced by the 42 nd Amendment, which lists out the fundamental duties said: ‘It shall be the duty of every citizen of India – …. (g) to protect and improve the national environment and forests, lakes, rivers, wildlife and to have compassion for living creatures.’ In directing that all forest communities be evicted, there has been no attempt to ascertain what the relationship between the forest communities and the forest is. Nor has there been any recognition of the damage to the forest resources that will almost inevitably result from emptying the forest of its dwellers and the forest dependent communities; and of leaving the protection, and the nurturing, of forests to the forest bureaucracy alone.

There is a further aspect to the constitutional treatment of the forest communities. In the late 1970s the judiciary devised a judicial procedure, now widely known as PIL, by which it brought within its ken the lives of classes and communities who had been excluded from constitutionalism thus far. In tandem with this development in judicial process, the substantive content of the ‘right to life’ in Article 21 was expanded. The right to dignity, health, clean environment, education, livelihood and shelter were some aspects of this wider meaning given to the law. In S.P. Gupta v. Union of India (1981 Supp SCC 81), the Supreme Court set out in unmistakable terms that PIL had been devised to provide access to justice to the indigent, illiterate and ignorant who were unable to reach rights, and would so remain if there was no intervention to further their cause. In the early years of the `80s, when the degradation of the environment was taken to the court in PIL, it was the pollution of rivers, especially by industrialisation, that was in issue. The court often ordered temporary closure of the industry involved, and negotiated the setting up of effluent treatment plants and central effluent treatment plants and, upon the installing of these clean-up technologies, the industries were permitted to restart operations (clean-up technologies, it may be added, did not and were not expected to stop the pollution; only to reduce it.) Environmentalism has, however, since captured the imagination of the court. In turn, this has resulted in a prioritisation of interests and rights, displacing altogether concerns about the lives of those who live on law’s margins such as the forest communities.

Increasingly, with a strident environmentalism that is exclusive and excluding, the inter-dependence between the forest communities and the forests is being drowned out. So are the various constitutional injunctions that would require respect for the forest communities. For instance, a significant proportion of the forest communities are scheduled tribes. Scheduled tribes have a special status in the Constitution. Recognising the importance of protecting the habitat from incursions and being taken over, the Constitution carves out ‘scheduled areas’ which the President will notify for special protection. The 5 th Schedule and the 6 th Schedule to the Constitution provide a different dispensation in the matter of administering Scheduled Areas. Embargoes on alienation of land by a tribal to a non-tribal have been enacted in relation to scheduled areas, to reduce the potential for exploitation of tribals. In 199_, the Supreme Court ruled, in Samata v. State of A.P., that the prohibition of alienation meant that the state too could not acquire land from a tribal to hand it over to a non-tribal. And that ruling continues to be the law despite attempts by a range of vested interest to change this situation, by amending the 5 th Schedule to the Constitution, if necessary. In the directive principles of state policy, in Article 46, there is a specific provision directing that ‘the state shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the scheduled castes and scheduled tribes, and shall protect them from social injustice and all forms of exploitation.’

Despite all these constitution mandates that have been spelt out, there are moves afoot to send communities into exile. That this is both unconstitutional and unconscionable is evident, and cannot be ignored.

The process of exiling forest communities from their habitat and livelihood has a way of classifying them into

• the eligibles,
• the ineligibles, and
• the invisibles

The eligibles are those who are recognised as having interests in the forest that must be ‘settled’ as part of the displacement process. The ineligible are those whose claim to be recognised as having interests are not accepted. And the invisibles are those who do not feature in any government document or register, and the whole exercise of dispossession and displacement is effected as if they do not exist. The poor state of land and habitation records contributes to this process of systemic denial of rights. That many forests dwellers have remained uncounted, they have not been given pattas, and they have been forced by the law into various states of illegality, also lends itself to creating this unjust situation. It is also significant that those least dispossessed in the working of the law, i.e., the eligibles, have only the right to reduce their interests to a claim – and they may then receive compensation which will then be seen as ‘settling’ their rights. The inevitable impoverishment that results is not accounted for anywhere. It is a steep decline in policy – from special protection to exile and disarray – that this move portends. This also negates, in totality, the letter and the spirit of the Panchayats (Extension to Scheduled Areas) Act, 1996 which was a stride towards recognising the autonomy of communities in scheduled areas over the resources in their region, including water, forest produce and minor minerals.

These moves to empty the forest of forest communities finds no tolerance in the international law either. India is a signatory to the International Covenant on Economic Social and Cultural Rights, and acting contrary to the Covenant represents a violation of international law. The Covenant sets out the rights, including ‘the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing, and housing, and to the continuous improvement of living conditions.’ (Article 11)

The Maastricht Guidelines on Violation of Economic, Social and Cultural Rights explains that states are obligated to ‘respect, protect and fulfil’ the rights set out in the Covenant. ‘The obligation to respect requires states to refrain from interfering with the enjoyment of economic, social and cultural rights. Thus, the right to housing is violated if the state engages in arbitrary forced evictions. The obligation to protect requires states to prevent violation of such rights by third parties…The obligation to fulfil requires states to take appropriate, legislative, administrative, budgetary, judicial and other measures towards the full realisation of such rights.’ (Maastricht Guidelines, para 6)

In setting out the ‘violations through acts of commission’, the Maastricht Guidelines illustrate it thus:

‘14. (b) The active denial of such rights to particular individuals or groups, whether through legislated or enforced discrimination;….

(d) The adoption of legislation or policies which are manifestly incompatible with pre-existing legal obligations relating to these rights, unless it is done with the purpose and effect of increasing equality and improving the realisation of economic, social and cultural rights for the most vulnerable groups;

(e)The adoption of any deliberately retrogressive measures that reduces the extent to which any such right is guaranteed;

(f)The calculated obstruction of, or halt to, the progressive realization of a right protected by the Covenant, unless the State is acting within a limitation permitted by the Covenant or it does so due to a lack of available resources or force majeure;’

General Comment 4 of the Committee on Economic, Social and Cultural Rights on the Right to Housing denounces forced evictions when it says (in para 18):

18. In this regard, the Committee considers that instances of forced eviction are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law.

The Committee on Economic Social Cultural Rights, in General Comment 7 on forced evictions recognised the burden of suffering placed especially on particular populations when it said (in para 11):

‘ Women, children, youth, older persons, indigenous people, ethnic and other minorities, and other vulnerable individuals and groups all suffer disproportionately from the practice of forced evictions.’

and proposed that the least that needed to be done was to provide a procedure to precede forced evictions, where forced eviction cannot be avoided. These procedural protections include (para 16):

• an opportunity for genuine consultation with those affected;
• adequate and reasonable notice for all affected persons prior to the scheduled date of eviction;
• information on the proposed evictions and where applicable, on the alternative purpose for which land or housing is to be used, to be made available in reasonable time to those affected;
• especially where groups of people are involved, government officials or their representatives to be present during an eviction;
• all persons carrying out the eviction to be properly identified;
• evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise;
• provision of legal remedies; and
• provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.

And the obligation of State was spelt out (in para 17):

Evictions should not result in rendering individuals homeless or vulnerable to the violation of other human rights. Where those affected are unable to provide for themselves, the State party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available.

None of this is respected in the mass eviction of forest communities. Instead, a language is being developed which dispossesses and disenfranchises forest communities by referring to then as ‘encroachers’ and foisting ‘illegality’ on them.