[Ed Note: As part of our New Scholarship Section, we have been inviting discussants to respond to specific articles. This Response Piece is part of a series of posts indexed here discussing the public law themed articles featured in the recently released Issue 2 of the 2020 Volume of the Indian Law Review. We are grateful to C.R. Bijoy for accepting our invitation to respond to the paper by Dierde N. Dlugoleski. One can read the short summary of the paper by Dierde N. Dlugoleski here.]

Ms. Deirdre N. Dlugoleski, in her research article ‘Undoing historical injustice: the role of the Forest Rights Act and the Supreme Court in departing from colonial forest laws’ in Indian Law Review, June 2020, weaves together India’s Forest Rights Act 2006 (FRA) and the Supreme Court defense of tribal rights in the Niyamgiri case in 2013 as definite indicators of Indian jurisprudence moving ‘closer to developing international law on indigenous land rights’ in which the Inter-American system can ‘offer guidance’. She goes on to conclude that the loss of ‘tribal votes in important states’ is a key factor to ensure that the Act itself would not be repealed or weakened, and the Courts would be an arena where the Act would be litigated where the ‘constitutional guarantees of religious freedom to land rights’, that the Supreme Court has applied in the Niyamgiri case, would stand in its stead and possibly broaden ‘the scope of available protections for forests rights’ towards meaningfully ‘undoing the deep historical injustice that forest dwellers have suffered in India’.

Demystifying and deciphering laws and court orders that make sense and visualising what would actually come to life in the real world in order to have some idea of the ground truth that these would lead to, requires, at a minimum, the following:

• these are to be read as a whole and not in parts, and in letter and spirit;
• these are to be placed in the context these emerged from and the context these are placed in; and
• from these, visualize the process that these evolved from, or could have evolved from, so that one gets an idea what these could contribute to or how these would impact the process, and hence their potential use or application.

No doubt that reality is too complex to be mapped reasonably accurately. Yet, such an exercise could nevertheless yield better results than the conjectures one can flush out from select parts of select documents (in this case, the FRA and the Niyamgiri judgment and commentaries on them). Listed below are a few relevant facts and questions:

1. The 3 May 2002 eviction order of Ministry of Environment, Forests and Climate Change (MoEFCC) targeting ‘encroachers’ triggered a nation-wide forest struggle, the only one of its kind since independence. It stated that ‘approximately 12.50 lakh hectares of forest land is under encroachment’, that the Supreme Court order of 23.11.2001 in IA No.703 in WP (Civil) No. 202/95 (T.N. Godavarman Thirumulpad v. Union of India) ‘restrained the central government from regularisation of encroachments in the country’ and therefore ‘all encroachments which are not eligible for regularisation should be summarily evicted in a time bound manner, and in any case, not later than 30^th September 2002’. Is this ‘to combat deforestation and protect the remaining tree cover’ as the article states? When the issue of encroachment came up, did the Court ask MoEFCC what they did to remove encroachments? Was this order an attempt to prove that it has and is acting against illegal encroachment? Ironically, the MoEFCC conceded ‘historical injustice’ due to the government’s failure to recognize the traditional rights of the tribal forest dwellers, which ‘must be finally rectified’ in its 2004 affidavit to the Supreme Court in the same case (in IA No. 1126 in IA No. 703 in WP(C) No. 202/95 dated 21.07.2004).
   
   
2. Does the MoEFCC actually combats deforestation and promotes conservation? The Wildlife Protection Act, 1972 prescribes an exclusionary fortress conservation. It, however, does not prohibit diversion of these protected areas, be it the high priority Tiger Reserves, National Parks or Wildlife Sanctuaries. A recent report says that the National Board for Wildlife recommended diversion of over 1,000 sq kms during wildlife week (2-8 October) for ‘activities which could easily be located outside such green zones’. The Forest Conservation Act, 1980 for that matter deals with diverting forests for non-forest activities and for compensatory afforestation in lieu of this diversion when equivalent revenue lands are not available. Is there any forest law that explicitly requires protection of wildlife, forest and biodiversity in the country other than FRA? Is there any law other than FRA that expressly prohibits diversion of forests? The Critical Wildlife Habitat (CWH) of Sec. 2(b) read with Sec. 4(2) of FRA that prohibits diversion of forests once notified as CWH was a non-negotiable demand of the forest struggle when the law was being negotiated. The MoEFCC, the designated Ministry to notify the guidelines for CWH did this twelve years later in 2018, that too under pressure from the Maharashtra High Court. Two years have gone by since then and no CWH has been notified anywhere as yet. What do these indicate?
   
   
3. With the colonial forest laws criminalizing the forest dwellers, the forests turned into a virtual conflict zone, intense and bloody, as no other parts in the country. Never mind that rights were to be recorded and settled one way or other under the forest laws. Struggle for forest rights was an every day affair for generations. The 2002 mass evictions turned the tide when the hard lesson sunk in that struggle for rights are won only with the power to govern. The forests reverberated with the cries of ‘freedom for the jungle’, ‘democracy in the forests’, and ‘forests are ours’. Therefore, Sec. 5 read with Sec. 3(1)(j) of FRA made FRA a governance law where Gram Sabhas take control over protection, conservation, regulation and management of the ‘Community Forest Resource’ area which is ‘customary common forest land within the traditional or customary boundaries of the village or seasonal use of landscape’. Could an actual transfer of power from the forest bureaucracy (where the conservation aristocracy is embedded) to the Gram Sabhas be pushed by the MPs under pressure from the conservation lobby as the article avers to in pg.8? And then fought against the same forest bureaucracy and the conservation aristocracy on the ground and in the courts? Or was this not a non-negotiable demand of the forest struggle? The anti-FRA cases, all look alikes, were filed by the conservationists in the Supreme Court, and the retired forest officers filed cases in various high courts, all in 2008 when the FRA Rules were notified.
   
   
4. The forest struggle launched in 2002 began yielding immediate results. The Maharashtra government came out with its own regularisation order in 2002; the MoEFCC reiterated that its eviction order is not applicable to pre-1980 eligible encroachments. Attempts to convert forest villages into revenue villages and regularisation of encroachments with a cut-off date of 31.12.1993 were stayed by the Supreme Court. Forest rights became a part of the election manifestos of political parties in the 2004 Parliament elections. This narrative should inform that a democratic struggle opens up multiple spaces, and a political engagement could change the discourse and the history as it unfolds, where elections and electoral votes are just one element of democracy, and not necessarily the main one.
   
   
5. What is FRA? A welfare legislation or Indigenous Peoples’ land/forest rights law, or a governance law where the forest governance is finally transferred from a repressive colonial forest administration to the Gram Sabha centered democracy? The MoEFCC reckoned in 2009 itself that ‘The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 assigned rights to protect around 40 million hectares of community forest resources to village level democratic institutions. The fine-tuning of other forest-related legislations is needed with respect to the said Act’.
   
   
6. Wasn’t the Odisha Niyamgiri case in the Supreme Court about application of the laws in forest diversion, rather than the question of law? FRA was not under challenge in this case. The Court ruled on 18 April 2013 that full implementation of FRA and Gram Sabhas’ consent for forest diversion was mandatory amongst others to consider the proposal itself. With consent being denied by 12 villages, this proposal was shelved. The Court very significantly expanded the notion of land rights to the domain of religion under Article 26; for the Dongria Kondh that part of the forest was their god. The Court reiterated that the ‘Gram Sabha is also free to consider all the community, individual as well as cultural and religious claims.’ The latest: in Civil Appeal Nos. 3579-3580 of 2020 on application of the laws for forest diversion for a national highway in North Bengal on forest lands claimed by tribals, the Supreme Court, relying on the set of evidences that the State cobbled up, skipped altogether the substantive provisions of the laws, and disposed off the case on 2 November 2020 setting aside the interim order of the Calcutta High Court that stayed the project pending FRA implementation. The Court gave the go ahead with the highway project even as the High Court is to continue the hearing. FRA is also under challenge in the Supreme Court. In the WP(C) 50 of 2008, the petitions of the conservationists in the Supreme Court clubbed along with the transferred petitions of the retired forest officers are being heard. The Court declined to concede that the Parliament does not have the authority to enact such a law. Instead of hearing the constitutional validty of the law which was under challenge, the Court took up the application of the law with regard to FRA claims, with the government being a passive observer and often even absent in the Court. In its  February 2019 order to finalise the list of ‘rejected claims’, the Supreme Court conflated these with the criminal offence of ‘encroachment’ and ordered their eviction from forest lands. Protests were instant from across the country. The eviction itself is kept on hold; the States have conceded that FRA implementation is deeply flawed and therefore all the rejections needed to be reviewed.
   
   
7. Consequent to the 2013 Niyamgiri order, MoEFCC amended the Forest Conservation Rules in 2014 and again in 2016to incorporate the Ministry’s order of 2009 on compliance with FRA for forest diversion, entrusting the District Collector with the task of completing the process of recognition and vesting of forest rights, and obtaining the consent of Gram Sabhas for the proposed forest diversion. With this, the manufacture of the District Collector’s certificate replaced the Gram Sabhas certificates confirming FRA implementation and consent for diversion. Presently, FRA compliance is not even required for ‘in-principle approval’; instead FRA compliance is required only for the final approval (Stage 2). Ministry of Tribal Affairs (MoTA), in-charge of ‘all matters including legislation, relating to the rights of forest dwelling Scheduled Tribes on forest lands’, reiterated that ‘this would prove to be a fait accompli’, and that ‘it has not been endorsed to MoTA who is the competent Ministry relating to FRA’, while also pointing out that this would amount to an offence. MoEFCC has been exempting different categories of forests and projects from FRA compliance when it has no such authority. Where does all this leave the Niyamgiri judgment? 253,179 ha of forestland were diverted for non-forestry purposes and another 47,435 ha for compensatory afforestation between 2008, when FRA became operational, and 2019. Did these diversions comply with FRA and obtain Gram Sabha consent when FRA implementation across the country was poor and at best only about 13% of the estimated minimum of 40 million ha has been recognised under FRA? Would the government and the Supreme Court reign in MoEFCC and stand with FRA? Can they? No doubt, important to analyse it, ponder over, speculate and do something about it.

Laws, particularly those that seeks to address injustices and recast power relationship in a highly unequal society, are dynamic sites of learning how politics actually works and gets played out beyond popular narratives which could often be misleading or sheer propaganda. To the discerning citizen, this could also be an arena for immense constructive engagement for change.