Introduction

The legal architecture that allows protected areas to thrive and function is the underbelly of the criminalization of forest-dwelling communities. Colonial-era forest laws and the authoritarian approach to exclusionary conservation have meant that forest-dwelling communities live under the constant threat of being evicted or criminalized for exercising their rights. The looming climate and biodiversity crisis has reinforced the need to govern forests as carbon sinks or retain protected areas. In this context, the salient report by the Criminal Justice and Police Accountability project titled ‘Wildlife Policing: The Reign of Criminalization in the Forests of Madhya Pradesh’ brings to the fore the reality of how the forest department uses its vast discretionary power to criminalize oppressed caste and forest-dwelling communities to manage protected areas.

The report significantly shows how wildlife and colonial-era forest laws are covertly harnessed to criminalize the exercise of rights, especially livelihood, access to forest produce, and nutrition. The extensive research undertaken in the protected areas and forested stretches of Kanha and Mandla in Madhya Pradesh highlights how wildlife and forest offenses are weaponized against communities living within these areas. With rigorous evidence, criminal law perpetuates a hostile legal reality for marginalized communities with pending cases and the high costs of legal defense. The themes that the report tackles so well are the tensions within forest law of rights recognition and rights erasure through criminalization and the other which is the policing of cultures and futures of forest-dwelling communities.

Criminalizing Rights

The passing of the Forest Rights Act, 2006 was meant to correct historical injustice by recognizing the rights of forest dwellers to forest land and community forest resources. The contestation that shapes forest laws is that of exclusionary conservation and community-based approaches. The FRA provided a democratic forest governance structure that aimed to create avenues for conserving forest areas without rights erasure. This progressive legal development did not reshape the older colonial-era forest laws like the Indian Forest Act, 1927 or the more recent Wildlife Protection Act, 1972, which operate on the paradigm of exclusionary conservation. These parallel legal regimes have meant that the law enables the recognition of rights and criminal provisions to erase them.

The report carefully documents how the criminalization of rights impacts the everyday lives of forest-dwelling communities. A case study in the report narrates the lived experiences of three accused forest dwellers arrested for fishing in the Kanha Tiger Reserve. Caught with a mere 500 grams of fish, the accused were subject to illegal custody and forced to confess. The brutality with which the criminalization of rights takes place tells how forest governance in India continues to erase rights instead of democratizing conservation. The case studies in the report speak to how the criminal justice system is designed to exclude forest-dwelling communities with a high pendency of cases. Out of the 1414 cases filed by the Forest Department and examined in the report, 51% remained pending before the courts.

In my work as a legal researcher on forest laws, a recurring theme is how criminal law reinforces exclusionary conservation and the authoritarian state in India’s forests. The concentration of power of administration and criminalization within the forest bureaucracy lends itself to a legal scenario where checks and balances of the exercise of power are few. Forest-dwelling communities remain caught in a web of criminalization, exclusion, and chipping away of their rights and culture. The report is a timely intervention and begs us to ask what the role of criminal law in forest governance is and challenge the dichotomous forest law framework that fails to resolve the tension of rights recognition and the violence of rights erasure.

Policing Futures  

The report painstakingly details the role of criminal law in regulating culture, livelihood, and the futures of forest-dwelling communities. Forests are heavily regulated and remain hostile geographies to be living in. The report, through its many case studies, indicates how incidents of arrests range from hunting to access to minor forest produce. The state and forest bureaucracy is ever-present in the form of informal informants to forest guards to be able to file charges over forest use. In such a landscape where cultural practices and livelihood are policed, forest-dwelling communities find themselves caught between a rock and a hard place. The criminal law regime then determines what aspects of their cultures and livelihood are permissible and those that must be regulated. This capacity of law to discipline culture narrows the possibilities and choices available to the forest-dwelling communities in charting their futures.

The report makes a poignant contribution in showing how using criminal law, apart from being merely unjust, is also expensive. Immense costs are borne by the forest-dwelling communities in appearing before the courts, hiring lawyers, and posting bail, which eats into their earnings and plans for the future. In a brief encounter with Adivasi youth in Talabira, Odisha, on the challenges they face as they imagine their futures, they stated, “Living within the forest, our home is a choice which comes with the challenge of knowing that you can be arrested at any time or that your land can be acquired easily.”[1] The lack of legal certainty on recognizing rights and tenurial security leaves forest-dwelling communities in limbo. The report urges us to see how criminal law is being harnessed to create this legal limbo that disempowers forest-dwelling communities and their cultures.

The report also serves as a framework for reimagining forest law and governance. The evidence in the report alerts us to re-examine how criminal law should feature within the forest governance architecture and the role of law in limiting the discretionary powers of the forest department. At its core, the report asks us to move away from the Brahmanical foundations of environmentalism that have shaped forest law and move towards an inclusive and intersectional approach to regulating our forests. From the report, it can be gleaned that there is a need to prioritize legal frameworks like the Forest Rights Act, 2006, and constitutional guarantees within scheduled areas that a more just legal future can be forged. There is a need to reinsert the values of natural justice and procedural safeguards in how criminal law is deployed in these contexts.

Conclusion

As forest conservation gains salience in an era of ecological collapse, we must make difficult legal choices. Will older colonial forest laws pave the way for a more rigid legal approach to forest conservation and criminalization, or will there be the progressive realization of forest rights as the pathway to conservation? As I had alluded to earlier, this tension is unresolved, and this report clarifies the direction the future of forest laws should go. In an effort to conserve, criminalization will strain already frayed relationships between the forest bureaucracy, forest-dwelling communities, and the forest. Repairing these ruptured relationships requires prioritizing rights and de-prioritizing policing of futures and deepening the marginalization of forest-dwelling citizens.

[1] Interview by Arpitha Kodiveri in Talabira in February, 2020.

Arpitha Kodiveri is a legal researcher focusing on environmental justice issues. She is a doctoral researcher at the European University Institute where her work studies the intersection of free, prior and informed consent, business and human rights in India. 

This post was edited by Harsh Jain and published by Avani Vijay from the editorial team.