Deirdre N. Dlugoleski Responds to the Discussion on her Paper on Forest Rights Act

[Ed Note: Please find below Deirdre N. Dlugoleski’s detailed response to the post(s) from C.R. Bijoy and Shalini Iyengar regarding her Article in the Indian Law Review titled “Undoing historical injustice: the role of the Forest Rights Act and the Supreme Court in departing from colonial forest laws”. This is part of a series of posts discussing the public law themed articles featured in the recently released Volume 4 Issue 2 of the Indian Law Review. You can access all the posts in this discussion here.]

I’m delighted to have the chance to respond to Mr. Bijoy and Ms. Iyengar, both of whose work I greatly admire. I would first, however, like to address the general tenor of many of the comments I have received before attempting to answer their more specific (and important) questions.

This paper was, broadly, about law and jurisprudence – that is, a hard textual look at how the Forest Rights Act (FRA) differed from previous environmental legislation, and a close examination of how the Supreme Court (SC) adopted a novel approach to construing the FRA in a case that ultimately took Indian jurisprudence closer to international precedent on indigenous rights. The poor and uneven implementation of the FRA, the byzantine politics surrounding it, and the nuances of advocacy strategies geared at improving or contesting it, are of course critically important to understanding the issue of forest rights. I, however, chose to write a relatively short journal article largely focused on legal analysis.  

In doing so, I have not claimed that the Niyamgiri decision has single-handedly solved the problem of forest rights in India, or that the forest bureaucracy simply shrugged and dutifully implemented a law that directly challenged their interests, or, for that matter, that the SC would even apply its own precedent consistently in future orders. As a human rights lawyer, I am all too aware of the gaping chasm between what our two democracies’ laws promise and what implementation, or lack thereof, actually delivers. Favorable laws, or even favorable court decisions, are nowhere near the full picture – that much is evident from a cursory glance at the world around us. But that does not mean that law is not important and worth writing about in and of itself. It is one thing to take a close, rigorous look at a small piece of a complex puzzle; spreading “sheer propaganda” is another entirely.

On the roles of protest, advocacy, and electoral votes

Mr. Bijoy appears to believe I place too much emphasis on tribal votes in elections, at the expense of discussion about public advocacy; Ms. Iyengar seems skeptical of whether tribals exercise any meaningful political influence, electoral or otherwise, at all. While this discussion ultimately relates to the question of whether the courts, rather than the legislature, are more likely to resolve thorny issues of forest rights, I am not sure it affects the main conclusions of the article with respect to the Supreme Court’s novel construction of the FRA. I will, however, do my best to address these comments.

Mr. Bijoy has pointed out that “elections and electoral votes are just one element of democracy, and not necessarily the main one,” citing as an example that the 2002 mobilizations led almost immediately to one state government issuing a regularization order, the MoEFCC and SC walking back some of their previous aggressive eviction efforts, and both competing parties including forest rights in their platforms during the 2004 elections. Here, I must agree with Mr. Bijoy, because I have already explicitly said that forest rights became an electoral issue in 2004 as a direct result of successful public advocacy (p. 229). I have also pointed out the important role that planned protests in 2019 played in the Supreme Court ultimately staying its own eviction orders (p. 241). I have never suggested only elections, and not public protest, were the factor that shapes the government’s treatment of forest rights – although surely, in a democracy, those two are related? Similarly, while I do claim that the threat of losing tribal votes is enough to scare many MPs away from openly opposing implementation of the FRA, I have never claimed that they would actually defend it once safely out of the public eye (discussed below with relation to the MoEFCC).

Ms. Iyengar, for her part, suggests the opposite in her comments, citing an article from 2007 by Ramachandra Guha. I of course agree with Mr. Guha that tribals have historically exercised a disproportionately low political influence with respect to their actual population – but does this observation by itself foreclose the possibility that the 2004 mobilization and the FRA represented an inflection point, and that in the years since, forest dwellers have more successfully organized to pressure both the national and state governments? (As I mention on p. 230, some have actually suggested that the BJP’s poor record on forest rights played a role in the party’s notable losses of reserved seats in the 2018 elections.)

For example: I describe on pp. 241-242 how the SC stayed its own eviction orders in 2019 (which Mr. Bijoy has also noted in his comments). This happened because, in response to planned protests over forest rights, and with fewer than two months left before parliamentary elections, the Modi government finally ordered its solicitor general into court to argue that the Forest Rights Act should be construed liberally in favor of the poor, and that evictions should not proceed without verification that states had followed proper procedures in rejecting claims. To me, this timing seems more than coincidental.  

On the role of MoEFCC

As I have noted in my paper, the scope of the FRA’s protections vastly exceeded the political will to implement the Act (p. 222). No entity so accurately demonstrates this as the MoEFCC. The ministry’s persistent hostility to the Forest Rights Act has been a large hurdle to implementation – and, importantly, offers another avenue besides the courts to challenge the FRA. I was not able to address the MoEFCC fully in a relatively short journal article and welcome the chance to do so here.

Mr. Bijoy has righty noted the ministry’s alarming behavior: actively allowing diversions of forest land; refusing to notify Critical Wildlife Habitats; and warring with the Ministry of Tribal Affairs (MoTA, the designated ministry for implementation of the FRA) on the rules and construction of the Forest Rights Act – all, of course, in addition to issuing the original eviction order that prompted forest rights mobilization in the first instance.

None of this is actually surprising. The Ministry, and forest bureaucracy in general, has earned itself a reputation for its cozy relationship with industry (a reputation that no doubt influenced the decision to designate MoTA as the nodal agency for implementing the Act, instead of MoEFCC). Even as MoEFCC voiced its concerns over the FRA, the Ministry itself diverted lakhs of hectares of forest for use in industrial and development projects. And let’s not forget that by giving forest dwellers the statutory right to sell non-timber forest produce (NTFP), the state forest departments face a challenge to their monopoly over NTFP trade worth more than US $10 billion per year.[1] Of course the forest bureaucracy is hostile to the mandate of the FRA. – actual conservation efforts threaten their entrenched interests, and the recognition of forest rights even more so.

I would posit that the MoEFCC’s consistent efforts at sabotage are quite convenient for other members of the government. Mr. Bijoy asks both whether the government and/or Supreme Court could counteract MoEFCC, and whether they would. To me, only the second of those questions matters. Legally, MoTA, not MoEFCC, is in charge of implementing the FRA; in any case, both ministries work for the government, which can obviously tell them what to do. Choosing not to rein in the MoEFCC, however, almost certainly provides useful political cover for MPs who do not wish to see forest rights recognized but do not wish to publicly oppose the FRA. The administrative process is much opaquer than the legislative.

This, of course, makes public pressure on elected officials to defend forest rights even more important; the MoEFCC does not care about public sentiment until the government tells it to (as evidenced in its 2004 affidavit, which Mr. Bijoy also brings up, in which it conceded historical injustice from the government’s failure to recognize forest rights).

The SC, for its part, decided to overhaul the entire national forest policy in the course of the Godavarman decision. In that sense, for purposes of forest rights I think it safe to say they can do pretty much whatever they want. But as I explain below, the Court also responds to competing pressures when it rules.

On the role of the Supreme Court

I discuss in my paper that, while the SC issued a strong, favorable judgment in Niyamgiri, it will not necessarily apply that standard consistently (pp. 241-42) – specifically, it seems likely the Court will defend forest rights only when it believes such a move to be politically safe.

For this discussion, I drew on Arun Thiruvengadam’s analysis showing that the SC, when faced with strong central governments, has historically tended to avoid taking controversial stances when its own interests are not at stake.[2] As I explain, this could be why the Court stayed eviction orders in 2019 only after the government’s lawyer finally showed up and argued in favor of forest rights (discussed above) – the Court may have seen the government’s defense of the FRA as assurance that a decision more favorable to forest dwellers would not be attacked. In this respect, I welcome Ms. Iyengar’s addition of Kapiszewski’s theory of tactical balancing as a lens through which to consider the court’s decisions. This certainly would offer another potential explanation to Mr. Bijoy’s comment highlighting the Court’s erratic behavior (staying its own eviction orders in 2019, for example, but then overruling a state high court to allow for a highway project to proceed, in spite of pending FRA implementation).

With respect to whether the Court’s use of international human rights law created new pathways for rights guaranteed in India: I would posit that it does – as I argued in my paper, by using international law to more expansively construe the Indian Constitutional guarantees of religious freedom, the Court effectively created a way (new in India, at least) to defend forest land claims by asserting religious rights.

Ms. Iyengar’s questions of whether the use of international law was a precondition for protecting rights in this case, and whether the move could have been covered by domestic guarantees instead, are far more interesting, because in Niyamgiri the Court had a choice of which rights to protect. It’s important to remember that Niyamgiri started as an environmental case – Odisha Mining Corporation (OMC) went to court in the first instance because the MoEFCC and Forest Advisory Committee (FAC) had denied their application to open the mine on environmental grounds. The Forest Advisory Committee reviewing OMC’s environmental compliance actually suggested that the precautionary principle[3] – a tenet of international environmental law that Indian law has incorporated domestically[4] – should apply in this case.[5] Consequently, the Court – as I see it – could likely have ruled on the right to a healthy environment based on Article 21 (right to life).[6] Taking this route would have produced functionally the same outcome with respect to the mine; instead, the Court chose the more difficult task of expanding the Constitutional right to religion in order to address forest dwellers’ control over their land. In short: I do not know whether international law was necessary for their decision (although their use of it was consistent with how they’ve drawn on it in the past to expand the Article 21 right to life). But the ultimate environmental outcome – stopping the mine – could arguably have been achieved by existing precedent, which the Court chose not to use.

With respect to Ms. Iyengar’s concerns about the implications of using religion to determine environmental rights – I share them. I agree that the question of how to handle religious rights claims of majority religions and dominant communities in these cases is another disadvantage in the reasoning the SC chose to use, in addition to the decision’s tension with forest dwellers’ right to self-determination – that is, to change their traditions on their own initiative.

As to Ms. Iyengar’s query of how the Indian Supreme Court has used human rights principles to shape environmental outcomes, and the question of religion and ethics in Supreme Court jurisprudence – these are fascinating areas for future inquiry.

Somewhat relatedly, Mr. Bijoy asks in his comments whether the issue in Niyamgiri was not the interpretation, but rather merely the application, of the FRA. The answer is that, yes, the case was about the application of the law – but specifically with respect to (1) religious/cultural rights over (2) an uninhabited area, both of which were ambiguous at best in the FRA. As a result, to determine the application of the law, the Court also had to engage in statutory interpretation.

On the conservation movement in India

Mr. Bijoy questions whether the MPs, “under pressure from the conservation lobby as the article avers to,” could have actually effectuated a transfer of power from the forest bureaucracy (“where the conservation aristocracy is embedded”) and then fought against the same bureaucracy/conservation lobby “on the ground and in the courts.” In the first instance, I have not claimed that the conservation lobby pressured the MPs into transferring power to the Gram Sabhas – what I actually wrote on p. 228 was that the conservation lobby succeeded in establishing responsibilities as well as rights for forest dwellers; village institutions are statutorily authorized to protect wildlife, the forest, biodiversity, and ecologically fragile areas. As I see it, the shift in power to the Gram Sabha came directly as a result of pressure from forest rights advocacy.

But Mr. Bijoy also strikes at another important issue: shifts in ideology within the conservation movement itself. Historically, conservation in India meant exclusion – some conservationists vehemently opposed the passage of the FRA, and, as Mr. Bijoy has correctly pointed out, conservationists filed the anti-FRA cases in 2008. A closer look, however, reveals a more nuanced picture.

In fact, conservation groups have both challenged and defended the FRA. When Wildlife First, the Nature Conservation Society (NCS), and the Tiger Research and Conservation Trust (TRACT) filed a challenge to the FRA in January 2014, for example, thirty individuals and NGOs, both tribal rights advocates and wildlife conservationists, responded with an open letter calling for the withdrawal of the suit, alleging that the FRA aided conservation efforts by preventing corporate looting of natural resources. Just in advance of the Supreme Court’s 2016 decision upholding the FRA against the challenge in Tamil Nadu’s high court, 40 international conservation organizations and a group of experts signed on to an open letter to MoEFCC, urging prompt recognition of forest rights – notably, this group contended that a failure to recognize forest dwellers’ land tenure would itself result in environmental damage.

To me, this illustrates what Mahesh Rangarajan has described as a shift away from a group of small, upper-class intellectuals after Independence to a wider array of proponents. Particularly, he identifies “pragmatic conservations” (who seek to balance environmental preservation against actual human concerns) and “constructive workers” (who see conservation programs as a way to create local jobs rather than clearing out humans altogether from the area) among the new voices in the conservation discourse.[7]

On what made passage of the FRA unique

Ms. Iyengar, in her comments, has brought up, broadly, questions of change over time. I don’t claim to have definitive answers to any of these questions (to the extent that those exist), but I will posit some ideas.

With respect to how the discourse on forest rights has changed, and why the term “encroacher” still has salience, I would point again to ongoing shift in how people think about conservation, balanced against the deep historical roots of exclusion as forest policy and the powerful interests with a stake in preserving a discourse centered on exclusion.

With respect to the differences between the Supreme Court’s 2002 and 2019 eviction orders, I think the largest and most determinative difference (besides the fact that one resulted in evictions and the other so far has not) is that the 2002 order did not actually come from the Court.[8] What the Supreme Court actually did in Godavarman was request several states to detail steps taken to clear encroachers from the forest. Before the Court could issue a response to the states, however, the MoEFCC issued its own directive demanding states to evict everyone on forest land who did not have, or was not eligible for, a title by September 30, 2002.[9] This difference is important to point out, because while one of these entities responds to public pressure (among other things), the other is relatively insulated. In the almost 20 years between these eviction orders, forest rights advocates have succeeded in keeping the issue alive as a point of national political importance, and the Supreme Court has shown a markedly more hesitant approach to ordering evictions.

With respect to what made the mobilization after the evictions different from previous environmental movements: while I have not focused on previous environmental movements, such as Chipko, Appiko, Silent Valley, and Tehri Dam, one large difference between these and the FRA protests in 2004 stands out. These earlier movements, while of national importance, revolved around issues more or less at the state level. The Narmada Bachao Andolan movement, of course, extended throughout several states. But this still contrasts to national scope of the pre-FRA evictions, which resulted, as Mr. Bijoy points out in his comments, in the only nation-wide forest struggle since independence. The Campaign for Survival and Dignity (CSD), in which Mr. Bijoy has played an invaluable role, emerged from an alliance of more than 150 organizations representing tribal groups and forest dwellers, including the Bharat Jan Andolan and the National Front for Tribal Self-Rule, both prominent and well-organized groups. The CSD not only organized multiple, massive rallies in New Delhi (both in the leadup to the 2004 elections and during the FRA’s drafting process), but also organized protests in the center and south of India from 2002 to 2004.[10] This advocacy work earned activists a considerable hand in the drafting process as well.

After its victory in 2004, the newly elected UPA government formed a National Advisory Council to provide recommendations on implementing the Common Minimum Programme, including the settlement of forest rights; the activist camp enjoyed strong representation in the Council.

[1] Sunayana Ganguly, Deliberating Environmental Policy in India: Participation and the Role of Advocacy 125 (2016).

[2] Arun K. Thiruvengadam, The Constitution of India: A Contextual Analysis, 135 (Hart Publishing 2017).

[3] Essentially, the precautionary principle says that one should delay action that would risk serious or irreparable harm to the environment rather than waiting for more compelling evidence that this would occur.

[4] Vellore Citizen’s Welfare Forum v. Union of India, 5 S.C.C. 647 (1996).

[5] Orissa Mining Corp., Ltd. v. Ministry of Env’t & Forests (Niyamgiri), (2013) 6 SCC 476, 488, para. 18.

[6] See Rural Litigation v State of Uttar Pradesh AIR 1988 SC 2187; Koolwal v State of Rajasthan AIR 1988 Raj 2; Kumar v State of Bihar (1991) 1 SCC 598; Gaur v State of Haryana (1995) 2 SCC 577; Vellore Citizens Welfare Forum v Union of India AIR 1996 SC 2715; Mehta v Union of India AIR 2004 SC 4016; Thirumulpad v Union of India AIR 2005 SC 4256.

[7] Mahesh Rangarajan, The Politics of Ecology: The Debate on Wildlife and People in India, 1970-95, 31 Econ & Pol Weekly 2391, 2394 (1996).

[8] (Here, I am actually drawing on what Mr. Bijoy has written in another article – C.R. Bijoy, Forest Rights Struggle: The Making of the Law and the Decade After, 13/2 Law Environment and Development Journal 75, 78 (2017).

[9] Mr. Bijoy has pointed out in a different article that MoEF issued its eviction directive with reference to a Supreme Court order that may not have actually existed – although the MoEF order cited IA No. 703 in WP (Civil) No. 202/95, Bijoy notes that the Supreme Court had only registered one (different) order on the date in question.

[10] Among those present were Aruna Roy, a social activist and founder of the Mazdoor Kisan Shakti Sangathan, (a grassroots group whose advocacy led to the passage of the Right to Information Act), Pradip Prabhu (the convenor of the Campaign for Survival and Dignity, and former convener of the National Front for Tribal Self-Rule), and tribal representatives of the CSD. C.R. Bijoy, Forest Rights Struggle: The Making of the Law and the Decade After, 13/2 Law Environment and Development Journal 75, 80 (2017).

Deirdre N. Dlugoleski

Deirdre Dlugoleski joined Earth Rights as a Bertha Fellow in September 2020. Before joining EarthRights, Deirdre was a legal fellow at Robert F. Kennedy Human Rights, where she worked on strategic litigation before the Inter-American Commission and Inter-American Court of Human Rights. Deirdre graduated from New York University School of Law, where she was heavily involved in the Global Justice Clinic. While in law school, she interned with Human Rights Law Network (Delhi, India) and with Forest Peoples Programme.

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