Undoing historical injustice: The role of the Forest Rights Act and the Supreme Court in departing from colonial forest laws

[Ed Note: As part of our New Scholarship Section, we have been inviting discussants to respond to specific articles. This is part of a series of posts discussing the public law themed research articles featured in Issue 2 of the 2020 Volume of the Indian Law Review. You can access all the posts in this discussion here. In this piece, Deirdre N. Dlugoleski introduces the arguments she makes in her research article titled “Undoing historical injustice: the role of the Forest Rights Act and the Supreme Court in departing from colonial forest laws” that has been published in Issue 2 of the 2020 Volume of the Indian Law Review.]

Across the world, indigenous peoples are not only the most vulnerable to climate harms, but are also the most impacted by their own governments’ attempts to address climate change. Too often, states craft environmental protection policies with the legal tools of former colonizers, displacing and dispossessing indigenous peoples as a result. In India, with an indigenous population of about 104 million, the ramifications of this trend are especially severe. By passing the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006 (“Forest Rights Act” or “FRA”), however, India dramatically shifted its forest law away from the colonial framework. While many obstacles still remain to the recognition of forest rights, the Supreme Court’s defense of the FRA offers advocates a cause for hope.

Colonial forest policy, and its continuation under the post-independence Indian government, spelled the demise of community forest land. The British government consistently appropriated forest land that was not privately owned, and protected its ability to use the resources of these areas through a policy of exclusion – the government retained the right to evict the inhabitants at any point. Even after independence, the Indian government continued these policies. With the rise of commercial forestry, Parliament gave the central government even greater control over forests by passing laws like the Forest Conservation Act (“FCA”), which required states to secure the central government’s permission before assigning forest land – another obstacle to recognition of forest rights. When the Supreme Court decided T.N. Godavarman Thirumulpad v. Union of India in 1996, it ruled that the FCA applied to “any area recorded as forest in the Government record irrespective of ownership.” This meant that the FCA – and its barriers to the recognition of forest rights – now applied, in practicality, to anyplace that had trees.

The Supreme Court also requested several states to detail steps taken to clear “encroachers” from the forests. The Ministry of Environment, Forests and Climate Change (“MoEFCC”), however, issued its own directive demanding that states remove everyone living on forest land without a title. These mass evictions shocked the country into action, sparking massive protests in the leadup to the 2004 general election and making forest rights a campaign issue.

The resulting Forest Rights Act of 2006 represents a radical departure from the colonial legal framework that had formed the basis of Indian forest law. It recognizes not only individual, but also community land rights, along with the right to collect Non-Timber Forest Produce (“NTFP”). The Act also establishes standardized procedural requirements for land claims recognition and prohibits evictions before the recognition and verification process is complete. Finally, it expands legal protections for forest-dwelling communities to not only village forests, but also state forests and even wildlife sanctuaries.

The scale of this legal shift in favor of forest communities far outweighed the political will to implement the law. Elected officials, however, have been wary of openly challenging the FRA because of the tribal votes at stake – which, in some states, can be a decisive constituency. As a result, challenges to the Act are more likely to come through the courts than the legislative process.

The Supreme Court’s major decision on the Forest Rights Act, Orissa Mining Corp., Ltd. V. Ministry of Environment and Forests (“Niyamgiri”) provides some reason for optimism. In this case, the Court upheld the rights of the Dongria Kondh, a forest community, against powerful and deeply entrenched mining interests. According to the Court, the Forest Rights Act, read alongside the Panchayats Extension to Scheduled Areas (“PESA”) Act, gives the Gram Sabha the obligation to safeguard and preserve the cultural identity of the community – something it couldn’t do without access to ancestral land, given the Dongria Kondh’s traditional spiritual practice. In this decision, the Court also stated that the Dongria Kondh’s “distinctive spiritual relationship” with the land was protected under the constitutional guarantees of religious freedom, a fundamental right; this gives forest land with religious significance much greater legal protections.

Niyamgiri brought Indian Supreme Court jurisprudence more in line with precedent in the Inter-American system, which has consistently defended indigenous land rights by tying the right to property with the right to maintaining a cultural identity. Still, the recognition of forest rights in India faces many challenges. Most significantly, Indian law as yet has no requirement for obtaining the free, prior, and informed consent of a community before undertaking a project that would significantly affect their access to traditional resources. Besides these hurdles, under Niyamgiri’s precedent forest dwellers themselves have to both define and defend their identities and interests, meaning that fact-finding and documentation of community land use must play an important role in forest rights advocacy. Additionally, the Compensatory Afforestation Rules of 2018 severely undermine the FRA. Compensatory afforestation is slated to play a key role in India’s commitment to installing carbon sinks worth 2.5 to 3 billion tons by 2030; forest rights advocates will have an uphill battle convincing courts that land claim recognition should take priority.

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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