Ananya Kumar

188185

Short note on Forest laws and Rights of Forest Dwellers.

Forests have been an invaluable asset providing livelihood to mankind since time immemorial. While the world is rapidly becoming more and more
dependent on technology and artificial intelligence, many societies continue to be dependent solely on forests. The need for legislation on forests was
first recognised by the British Government by the Indian Forest Act of 1865 that empowered the government to declare any patch of trees as
Government forest and make laws to manage it. Subsequently, the Indian Forest Act of 1878 was introduced by the colonial government for
administrative convenience.

The Indian Forest Act of 1927

The Indian Forest Act of 1927 consolidated all previous laws regarding forests that conferred power to Government and forest departments the power
to create reserved forests and the right to them. The Act classifies forests into reserved forests, protected forests and village forests.

SUBJECT RELEVANT SECTIONS

RESERVED FORESTS SECTION 3 - Power of the State Government to reserve forests.
SECTION 4 - Notification of reserved forest by Gazette.
SECTION 5 - Bars any person from acquiring rights over the land reserved by notification under section 4.
POWERS AND FUNCTIONS OF SECTION 6 - Requires the Forest Settlement Officer to issue a proclamation and anyone claiming rights over
FOREST SETTLEMENT the said land must appear before him within a period of 3 months from the date of proclamation.
OFFICER SECTION 7- Requires the Forest Settlement Officer to inquire into the claims made under Section 6 and the
existence of any rights mentioned in Section 4 or 5.

SECTION 8 - Defines the powers of the Forest Settlement Officer.

• enter any land, survey, demarcate and map

• powers of a Civil Court in the trial of suits.

SECTION 9 - Rights without claims under Section 6 or 7 shall be extinguished unless Forest Settlement
Officer is satisfied within the given period.

SECTION 10 - Claims of shifting cultivation are to be recoded by the Forest Settlement Officer and submits to
the State Government that may permit or prohibit. If permitted the the Forest Officer may alter limits to the
land under settlement or may demarcate and give permission to practice shifting cultivation (Clause 3).

SECTION 11 - The Forest Settlement Officer has the power to admit or reject a claim to right over land other
than right to pasture. It is upon the officer to -

(i) exclude such land from proposed forest

(ii) Come to an agreement with owner

(iii)Acquire such land by the Land Acquisition Act 1984

SECTION 12 - Regarding claims to right to pasture, the Forest Settlement Officer shall permit or reject the
same.

SECTION 13 - The Forest Settlement Officer is required to maintain record of personal details of the claimant.

SECTION 15 - After making such record, the Forest Settlement-officer shall pass orders to ensure the
continued exercise of the rights.
 APPEAL SECTION 17 - Any person/Forest Settlement Officer/any person empowered by State Government can appeal
in such order to an officer of Revenue Department not less than the rank of Collector as appointed by State
Government.

SECTION 18- Every appeal under Section 17 shall be in writing to the Forest Settlement Officer and the
proceeding shall happen in the manner prescribed by the State.

ROLE OF STATE SECTION 22 - The State Government, within 5 years of publication of order, may revise the arrangements
GOVERNMENT made under Section 15 or 18 and declared under Section 20.

SECTION 23 - No rights expect those mentioned in the grant or contract in writing made by the State
Government.

SECTION 24- Notwithstanding anything contained in section 23, no right continued under clause (c) of sub-
section (2) of section 15 shall be alienated by way of grant, sale, lease, mortgage or otherwise, without the
sanction of the State Government.

SECTION 25 - The Forest Officer with sanction from State Government may stop any public or private way or
water-course in a reserved forest; provided that a substitute for the way or water-course so stopped, which the
State Government deems to be reasonably convenient, already exists.

SECTION 26 - Prohibits a no. of activities in the reserved forests which shall be punished with imprisonment
for a term which may extend to six months, or with fine which may extend to five hundred rupees or both.

SECTION 27 - State Government may direct by official gazette, the forests reserved under this Act to no
longer be reserved.

SECTION 76 - Additional power to make rules.

VILLAGE FORESTS SECTION 28 - State Government assigns reserved forests to village community and such forests are called
Village forests.
 PROTECTED FORESTS SECTION 29- The State Government may declare forests that are neither reserved forests nor village forests
but the government has proprietary rights over it.

SECTION 32 - Empowers the State Government to make rules for protected forests.

SECTION 33- Enlists offences that are punishable by imprisonment or fine or both
STATE CONTROL OVER SECTION 35- lists activities that the State Government may prohibit or regulate.
FOREST LAND NOT
SECTION 36- empowers State Government to apply restrictions listed in Section 35 after wilful disobedience.
PROPERTY OF GOVERNMENT
SECTION 37 - Power of the State Government to take forest land from its owner for public benefit/use.
TIMBER AND OTHER FOREST SECTION 39 - Empowers Central Government to levy duty on timber/forest produce.
PRODUCE
SECTION 41- Power of the State Government to make rules to regulate transit of forest produce.

SECTION 41A - empowers the Central government to rules to prescribe route for movement of forest produce
across custom frontiers.

SECTION 42- Penalty for breach of rules under Section 4 - imprisonment upto 6 months can be directed by
the State government.

SECTION 43- The Government shall not be liable for damage to forest produce while at the depot.
 PENALTIES SECTION 52 - In case a forest offence has been committed, the land along with all cattle or boats can be
seized by the Forest officer or police officer; a report of which is made to the Magistrate.

SECTION 53 - Any forest officer (not below the rank of a Ranger) may release a land seized under Section 52
after execution of a bond by the owner before the Magistrate.

SECTION 55 - In case of an offence, cattle or any other tool used in committing the offence shall be
confiscated by the government.

SECTION 62- Punishment for wrongful seizure - Vexatious confiscation by forest officer or police officer is
punishable by imprisonment for a term which extend to six months, or with fine or both.

SECTION 63- 63. Penalty for counterfeiting marks on trees and timber and for altering boundary marks.

SECTION 67 -The District Magistrate or any Magistrate of the first class specially empowered by State
Government to try summarily any forest officer punishable with imprisonment for a term not exceeding six
months, or fine or both.
PROCEDURE SECTION 57- In case an offender is unknown, the Magistrate may order the confiscation of property of the
individual whom the Magistrate deemed entitled.

SECTION 58 -The Magistrate may direct sale of any perishable property seized.

SECTION 59 - An appeal can be made by any individual claiming interest in the property seized within a
month from date of order passed.
POWERS OF SECTION 64 - Power to arrest without warrant, any person on reasonable suspicion.
FOREST OFFICER
SECTION 65- -Any Forest-officer (not below the rank of a Ranger) may release any person arrested under
Section 64 on his executing a bond to appear before the Magistrate.

SECTION 66- Every Forest-officer and Police officer has the power to prevent commission of offence.

SECTION 72- Enlists powers invested in Forest Officers by the State Government.

The Act attempts to regulate the collection of forest produce by forest dwellers and some activities declared as offences and imprisonment and fines
were imposed in this policy to establish the state control over forests. It empowers the State government to controls the transit of forest produce and the
duty leviable on forest produce. Forest produce is defined by Section 2(4) as the goods found in the forest including a range of items from charcoal,
timber, flowers, oils, bark, plants and grass (not being trees), honey wax and animal produce. The Act impacts the life of forest dependent communities
while extending State’s control over forests.

The Forest (Conservation) Act of 1980 (1988 Amendment)

After Independence, the Forest (Conservation) Act of 1980 was promulgated to check deforestation that causes ecological imbalance and leads to
environmental deterioration. It provides for conservation of forests and for matters connected. Later, the Constitution (Forty second Amendment) Act
of 1976 came into force that introduced a new directive principle of state policy under Article 48-A and Fundamental duty under Article 51(A)(g) to
protect and preserve the environment and forests. In 1992, some amendments were made in this Act which made provisions for allowing some non-
forest activities in forests, without cutting trees or limited cutting with prior approval of the Central Government.Fundamentally, the Act made
restrictions on right of the State government and other authorities to take decisions without prior permission from the Centre; thereby shifting the
power to the central government empowering the same to carry out laws by notifying in the official gazette under Section 4 and to constitute a
committee in matters relating to forest conversation under Section 3.The Act aims at replacing the ordinance of the previous government catering to the
necessity of dereservation of reserved forests and for the use of forest land for non-forest purposes. Section 2 of the Act deals restrictions on de-
reservation of forests and its uses for non-forest purposes. It holds that no State Government, without prior approval from Central Government, can
make any orders directing de-reservation of any forest lands, usage of forests for non-forest purposes, assignment by lease to any private person or any
authority and clearance of naturally grown trees for reafforestation. Within the meaning of the Act, the term ‘non forest purposes’ implies breaking up
or cleaning of any forest land for the purpose of commercial plantations.

SUBJECT SECTIONS
RESTRICTION ON SECTION 2 - No State Government may make the following orders without prior approval from the
DE-RESERVATION OF FORESTS Central Government -
• dereservation of reserved forests
• Any portion of land be used for non-forest purposes
• Assignment of any portion of forest land to private person or corporation.
• Clearance of forest for reafforestation.
 PENALTIES SECTION 3A- Contravention of any provision under Section 2 shall be punishable with simple
imprisonment for a period, which may extend to fifteen days.
SECTION 3B- Proceeding and punishment for offences committed by officers/authority if guilty or else
must prove that such offence took place without his/her knowledge.
POWER OF CENTRAL SECTION 3- Constitution of Advisory Committee for granting approval under Section 2 by the Central
GOVERNMENT Government.
SECTION 4 - empowers Central government to make rules that must be laid before both houses of the
Parliament while they are in session for a period of 30 days and must be approved by both houses to
make such modifications/annulments to the present Act.

Rights of Forest Dwellers

The Forest Rights Act (FRA), 2006 recognises the rights of the forest dwelling tribal communities and other traditional forest dwellers to forest
resources, on which these communities were dependent for a variety of needs, including livelihood, habitation and other socio-cultural needs.

Orissa Mining Corporation v. Ministry of Environment and Forest (2013) 6 SCC 476

In Orissa Mining Corporation v. Ministry of Environment and Forest (2013) 6 SCC 476, the Apex Court drew attention to the violation of the rights of
the tribal groups in scenarios where corporate projects try to encroach forest lands.

The issue addressed by the Court in this case was over an environmental clearance granted by the Ministry of Environment and Forest to the company
for an alumina Refinery Project. The State government objected that the area required included forest land that was not mentioned in the application to
which the Ministry had granted approval. Relying on the observations of the Saxena Committee, the Court considered the violations under Forest
(Conservation) Act of 1980 coupled with the resultant impact on the ecology and biodiversity of the surrounding area.
The Court observed that the object of the Fifth Schedule and regulations made thereunder is to preserve tribal autonomy, their cultures and economic
empowerment to ensure social, economic and political justice for the preservation of peace and good governance. In Samatha v. Arunachal Pradesh
MANU/SC/1325/1997: (1997) 8 SCC 191, the Court ruled that the All relevant clauses in the schedule and the regulations should be harmoniously and
widely read as to along with the constitutional objective and dignity of person belonging to the scheduled tribe and ensuring distributive justice as an
integral scheme. The court noticed that agriculture is the only source of livelihood for the scheduled Tribes apart from collection and sale of minor
forest produce to supplement their income. Land is their most important natural and valuable asset and imperishable endowment from which the tribal
derive their sustenance, social status, economic and social equality, permanent place of a bored, work and living. For the more tribes have great
emotional attachments to their lands.

The customary and cultural rights of indigenous people have also been the subject matter of various international conventions. International Labour
Organisation(ILO) Convention on indigenous and tribal population convention, 1957 was the first comprehensive international instruments fighting for
the rights of indigenous and tribal populations emphasising the necessity to protect their culture and heritage. Apart from giving legitimacy to cultural
rights, the Convention on Biological diversity adopted at the Earth Summit of 1992 highlighted necessary to preserve and maintain knowledge,
innovation and practices of the local community is relevant for conservation and sustainable use of biodiversity. Rio Declaration on Environment and
Development Agenda 21 and Forestry principal also encourage the promotion of customary practices conducive conservation.

The court held that many of the Scheduled Tribes and other traditional forest dwellers(TFDs) are totally unaware of their rights. They also experience
lot of difficulties in obtaining effective access to justice because of their distinct culture and limited contact with mainstream society. Section 6 of the
Forest rights Act, confers power on the Gram Sabha constituted under the act to protect the community resources, individual rights, culture and
religious rights. Article 243 – B of part IX of the Constitution mandated that there should be panchayats at the village, intermediate and district levels
in accordance to the provisions of that part. Article 243-C of chapter IX refers to the composition of panchayats. Based on the recommendations of
Bhuria committee appointed by the Central government to undertake a detailed study of whether the Panchayat Raj system be extended to scheduled
areas, the Panchayat (Extension to scheduled areas) Act of 1996 was enacted by the Parliament and its constitutional validity was upheld in Union of
India v. Rakesh Kumar MANU/SC/0021/2010: (2010) 4 SCC 50.

The legislative intention of the Forest Rights Act is to protect customs, usage, forms, practices and ceremonies which are appropriate to the traditional
practises of Forest dwellers. It was enacted to recognise the forest rights and occupation in forest land and forest dwellings Scheduled Tribes and other
traditional forest dwellers who have been residing in such forest for generations and to provide for a framework for recording the forest rights so vested
and the nature of evidence required for such recognition. The Act also states that the recognised rights include the responsibilities and authority for
sustainable use, conservation of biodiversity and maintenance of ecological balance and thereby strengthening the conservation regime of the forest
while ensuring livelihood and food security of the forest dwelling scheduled tribes and other TFDs.

The object of the act is that forest dwelling tribal people and forests are inseparable and that the simplicity of tribals and their general ignorance of
modern regulatory framework precluded them from asserting their genuine claims to resources in areas where they belong and that only recently the
forest management regimes have initiated action to recognise the occupation and other rights of the forest dwellers. The court observed that it is
important to bear in mind that the object of the act is that of social welfare.

Section 4 of chapter III of the Act deals with recognition of forest rights in forest dwellers and other TFDs. Section 5 lists out duties in whom the forest
rights vest and also the holders of forest rights empowers them to carry out duties. These duties include preservation of habitat from any form of
destructive practices affecting the culture and natural heritage.

The court goes on to observe the guidelines issued by the Ministry of Tribal Affairs for better implementation of the Act. According to these guidelines
-

1. The state government should exempt movement of all MFP from the purview of transit rules of the state government. The imposition of any fee/
charges on the processing, value addition, marketing of MFP collected individually or collectively would also be ultra vires to the act.

2. The monopoly of forest corporations in the trade of MFPs should be done away with. Full freedom to sell such MFPs o be given to anyone or to
undertake individual or collective possession by using local appropriate means of transport.

3. The district level committee should facilitate the filing of claims by pastoralist before the concerned Gram Sabha.

4. The forest villages are establishments that should be encouraged by the forest authorities for availability of labour within the area. The state
government should ensure that the Forest Rights under section 3(1)(i) of the act relating to protection, regeneration, conversion or management of
any community forest resources, which Forest dwellers might have traditionally been protecting and conserving for sustainable use, are recognised
 in all villages. Any restrictions on the use of community forest resources other than what is traditionally imposed would be against the spirit of the
act.

5. The Gram Sabha would initiate demarcation of boundaries of the community forest resources as defined in section 2 (a) of the Act for the purpose
of filing claims for recognition of Forest under section 3(1)(i) of the act.

6. Section 4(5) of the Act provides that no member of the forest dwelling ST or other traditional Forest dwellers shall be evicted or removed from the
forest land under his occupation till the recognition and verification procedure is complete. This clause is absolute in nature and excludes all
possibilities of eviction. In no case forest dwellers should be evicted without recognition of his rights as the same entitles him to would you
compensation in case of any eventuality. In any case, section 4(1) has the effect of recognising and vesting forest rights in eligible Forest dwellers.

7. The state government is required to ensure that all diversions of forest land for non-forest purposes under the Forest (Conservation) Act of 1980
take place in compliance with the instructions contained in the Ministry of Environment and Forest.

8. Under section 2(b) of the act the Ministry of environment and forest is responsible for determination and notification of critical wildlife habitats in
the national Park and sanctuaries. Further section 4(2) of the Act provides for certain safeguards of protection of the Forest rights of the forest right
holders recognised under the act in the critical wildlife habitats of national parks and sanctuaries when their rights are either to be modified or
Resettled for the purpose of creating in violate areas for wildlife conservation.

9. In order to generate awareness about the various provisions of the act and the rules, especially the process of filing petition, the state government
should organise public hearings on local Bazaar days or at other appropriate locations on a quarterly basis till the process of recognition is
complete.

The Court advised the Project proponents to take correct steps and rectify the alleged violations.