Kunwar Hunaut Singh.

Research Project.

The research in this paper is focused on understanding the rights legislations in the Indian
state. The dimensions of rights legislation have been looked through the lenses of the Forest
rights act in India. The primary source of the research is based on the article written by S.
Gopalkrishnan, Rights legislation in India. The author makes it clear that the article is not a
guide to interpret the Forest Rights Act. The author has tried to use the Forest Rights Act and
the struggle around it as a lens to examine how the state frames its policies and the law. The
essence of the article is to explore how the legislative process is used to determine policies
and law.

The author begins with placing the outcomes of the legislative process as a struggle between
the ruling class and the governed bloc. The premise from which the author illustrates his
claim is by understanding the way the state operates. As per the article the state operates 1)
either by pressurising the state to produce benefits for the people 2) or the state is driven by
the ruling class. However, the author takes the middle path, by stating that ‘the state is
neither purely a ruling class “instrument” nor simply something that can be “pressured.”
Rather, it is built around what the Italian Marxist Antonio Gramsci described as
“hegemony” the combination of using force with securing the consent of the oppressed in
order to maintain the existing order.’1 To put it simply the author claims that the ‘laws and
policies represent neither the agenda of the ruling class alone nor that of the struggling
people alone.’2 The law is the representation of the clashes between the two. It is with intent
that the Forest Act has to be analysed.

India being a colonial state under the British Empire, finds the origin of forest laws in the
colonial period. The Indian forest Act was passed in 1927, keeping in mind the need of
Britain’s growing industrial economy for timber and particularly for the railways and for ship
building. However, the colonial government realised that by simply acquiring the resources
of the forest through brute force would produce resistance and encourage looting and
competition among the colonial rulers of India. The new Forest Act proposed a framework,
through which an area was first declared a “government forest”, and subject to the settlement
process provided in the later Acts, the forest became the de facto property of the colonial
state. The legislation was first of its kind in the history of Indian Jurisprudence. Subsequent
to the legislation, forest in India were territories used by different people for different uses
and regulated as such, the legislation reduced the status of forests to commodities. Prior to the
legislation forests in India were not treated as property, and were not looked upon as a
resource that could be traded. Even today the impacts of the colonial legislation can be felt,
the author provides an example by observing the working plans of the forest department. As
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per the author, the forest department are solely concerned with managing trees, the Forest
(Conservation) Act envisions, tree plantations as a sufficient replacement for natural forests.
The colonial legislation by conceptualising forest as exploitable resource in the form of
timber is major concern according to the author. The author claims that the forests are more
than a commodity, forests embrace within them diverse ecosystems and support many around
it, by reducing forests to a commodity for timber the colonial state converted territory into a
commodity. It is significate to note, that colonial government by issuing such a legislation
had completely ignored the community that thrive in and around such territories, the capitalist
focus for timber to generate profit is the root cause for the tension between the ruling class
and the governed bloc.

The post-colonial state, witnessed a shift in the role of forests, in Indian Capitalism however,
the author notes that certain features of the struggle remain similar, which in turn shape the
kind of political action that occurs. The similar grounds the author finds are 1) the centrality
of the law as an oppressive instrument still exists, to elaborate ‘the overwhelming presence of
the Forest Department in these areas makes the state an obvious, glaring and direct exploiter
of the people, using the forest laws as its instrument. Where other exploiters also operate,
such as landlords or contractors, state connivance is both obvious and clearly illegal.’ 3 2)
The author identifies that forest laws were imposed on the forest areas at a time when private
property and fully commoditised relations of production had yet not penetrated into the
affected areas. The consequence of such an imposition was that it became difficult to
establish a relation between private property and fully commoditised territories. 3) both the
above in turn make the discourse of the ‘state’ vs the ‘people’ more real and accurate. The
forest Rights Act has to be seen against this background for the struggle around the Act and
the potential of the law itself.

The common scheme observed in the Indian Forest Acts of 1865, 1878 and finally 1927
marks the creation and fine-tuning of the system of government expropriation of forest areas
and their takeover as state property. After through scrutiny of the various Acts, the result is
that the State clearly lays down that forests are a commodity that can be destroyed as long as
they are “replaced” elsewhere. The author derives the common scheme by analysing the pre
1980 forest laws. The law created a distinction between ‘reserved forest’ and ‘protected
forest’. According to the 1927 Act a “reserved forest” once declared, fell in the realm of a
single official to enquire and settle, the land and forest rights people had in the area. The
rights included land rights, right to watercourses and forest produce and shifting cultivation.
The Forest settlement officer had the exclusive authority on whether or not to record these
rights. Rights were recorded as per the author of those entities who could provide
documentary proof or those who belonged to socially powerful communities. Collective
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rights and powers were practically never recorded.4 To substantiate further the author relied
on the procedure for “protected forest”. As per the author, if a territory fell within the ambit
of “protected forest”, the government could take over any land over which some kind of
rights settlement had already occurred and impose restrictions or regulations on a wide
variety of uses and activities in that area.5

The 1988 National Forest policy and Joint Forest Management marks a significant shift in the
Indian State’s position. The State through a policy, for the first time nationally acknowledged
the rights of people in association with forests. The policy identified the symbiotic
relationship between “tribals and forests” however failed to substantiate either about the
rights or democratic institutions that would govern the forest. The missing issue of the 1988
policy was addressed in 1990 with the institutionalisation of the Joint Forest Management
(JFM). The article describes the JFM as ‘a classic example of how the state machinery can
operate in a more sophisticated manner than brute force’. 6 However, in reality the author
claims the function of the JFM is to “weaken resistance by coopting some elements into the
Forest Department and thus building a section of society that has a vested interest in Forest
Department control. By pouring money into the pockets of a few people in each village, JFM
creates proxy troops for the Forest Department.” 7 As per the author the JFM is an example
of breaking genuinely democratic institution’s built by the people.

The author points out to another issue that emerged during the same time JFM guidelines
were being prepared. The Central government in response to Dr. B.D. Sharma's report as
Scheduled Castes and Scheduled Tribes Commissioner, through the Environment Ministry
issued four orders. These four orders were concerned with recognising land rights of forest
dwellers. In practice the author claims that the circulars were hardly implemented. Further
initiatives were taken by the Environment Ministry as a response from the ground. None of
the initiatives were ever implemented either. The author states that the source of the failure of
the guidelines initiated by the government was not merely an administrative issue or an
implementation problem. According to the author the guidelines failed because ‘built into all
these orders was a simple basic assumption: control over forest resources and forest land
should remain with the Forest Department; people's rights can be controlled by the same
department.’8 The intention behind the failure as the author identifies was to maintain the
status quo while providing some hope towards rights recognition.

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The case of T.N. Godavarman Thirumalpad and Ors. Vs. Union Of India and Ors 9 the author
remarks is a key development in national forest policy. The question before the court was
pertaining to the definition of “Forest” as per the Forest (Conservation) Act and whether the
restrictions under the Act are limited to government forests or extend to any other forest. In
1996 the court held that the word “Forest” in the act would mean any land which falls within
the dictionary definition of forests or has been declared as a forest as per government records.
The court also held, that the restrictions under the act had wider application and were not
restricted to only government forest. The restrictions under the act included any other forest
under its application. The author highlights some important consequences from the order, the
order greatly expanded the Forests Departments power. The order implied that any “non
forest” activity on many such lands was illegal. Moreover the author observes that the
question of what the “dictionary definition” of forests is, is highly contested. The issue
aggravated further as the court in a subsequent order in 2001 bared all regularisation of land
titles for “encroachments.” The order acted like a tool for the Forest Department as it was
used in subsequent eviction drives. In 2002 the court created a “Central Empowered
Committee” to assist in dealing with a large number of pending applications with respect to
forest clearances. The Committee was specially set up to address issues relating to its order,
the committee was empowered to hear and dispose of matters. The Godavarman case has far
reaching impacts according to the author. The case has given the enormous powers to the
forest bureaucracy. The creation of the Central Empowered Committee has resulted in further
centralisation of power and more repression. The court took the responsibility to control
most of the process of timber harvesting. The court further took charge as an arbiter of
whether or not forest clearance can be granted for projects. The court in 2002 invented a new
concept of “Net Present value” that was to be imposed an additional cost on those who seek
to diver forest land for non-forest use. The author highlights that the new principle is
glaringly an apparent display of commodity concept of forest.

In the meeting chaired by the Prime Minister in January 2005, witnessed for the first time an
official acceptance of two key facts. ‘First, that statutory recognition of forest rights in the
form of a clear and dedicated law was required. Second, that the forest bureaucracy has a
direct vested interest in denying rights and hence should not be in charge of any rights
recognition statute. The Ministry of Tribal Affairs was instead made the nodal agency, and
the drafting initiated through an expert group that included experts and forest rights
activists.’10 The result of the clash of the above-mentioned forces produced an extremely
complex law that has legal and political nuances. The law recognises three types of rights 1)
‘land rights’ 2) ‘use rights’ 3) ‘right to protect and conserve’. ‘Land rights’ are recognised in
the law as the Act grants people title to forest land that they have been cultivating prior to
December 13, 2005
(section 4(3)). Those who are cultivating land but don't have documentary proof can claim
up to 4 hectares, as long as they are cultivating the land themselves for a livelihood (section
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3(1)(a) and 4(6)).Those who have a patta or a government lease, but whose land has been
illegally taken by the Forest Department or whose land is the subject of a dispute between
Forest and Revenue Departments, can claim title to those lands ( section 3(1)(f) and (g)). The
land cannot be sold or transferred to anyone except by inheritance (see section 4(4)). 11 The
‘use right’ is recognised as the law provides for collection of minor forest produce, grazing
areas and water bodies. ‘For the first time, the law also grants communities the right to
protect and manage the forest. Section 3(1)(i) provide a right and a power to conserve
community forest resources, while section 5 gives the communtiy a general power to protect
wildlife, forests, etc.’12 The author identifies that ‘In these sections lies the radical potential
of this Act, for it is through the exercise of these rights and powers that forest communities
can get legal support for their struggle to reverse the commodification of their homelands.’13
Certain procedural reforms can also be witnessed in the Act. The right against arbitrary
reallocation finds its place in the act. Section 4(2) provides some safeguards against this.
Under the section, no one can be relocated unless three steps are satisfied. First, relocation
must be shown to be scientifically necessary with no other alternative; this has to be done
through a process of public consultation. The second step is that the local community must
consent to the resettlement. Finally, the resettlement must provide not only compensation but
a secure livelihood.14

The author finally comments about law and its political aspects. The key political aspects can
be broken into three parts 1) the rights themselves 2) the process of forest management with
the gram sabha in the centre of it 3) relationship between this law with other laws. According
to the author the rights provided in the act aim to provide a remedy against insecure property
rights and unclear legal tenure. The rights identified in the act can classified as individual
property rights, collective property rights and collective powers. As per the author ‘this
appears to defeat the century old attempt of extractive forces and the Forest Department to
expropriate resources by denying property rights, and to replace them with a “standard” set
of property relations.’15 However, the author also notes that these rights work against the
liberatory potential of the struggle in forest areas. ‘If these rights were to actually be
recognised, respected and guaranteed, the role of forest areas in India's capitalist economy
would have to undergo a drastic shift, with them becoming “normal” areas of peasant
agriculture and rural capitalism. Such a shift would require a reconfiguration of power
structures in these areas that would itself be revolutionary, and, even if it occurs in some
areas, cannot occur in most’.16 The key area of struggle is to develop the democratic and
collective processes in forest areas. By empowering the gram sabha, the law creates a space
for defending the key aspect of the forest rights struggle. Finally the relationship of Forest
Rights Act with other laws play a critical role in understanding the law itself. Forest Rights
Act reflects the hegemonic crisis that was affecting the Indian state at the time of its passage.
Thus, it is important to see that the Forest Rights Act can be understood in two ways. The
first is as one law among other laws, to be “harmoniously constructed” with the other laws
and to ensure overall consistency. The only way this can be done is by reducing the Forest
Rights Act to a land distribution scheme, under which some people will receive pattas. The
other way is to understand that the Forest Rights Act provides a space for people's action
within the legal framework, i.e. for exposing its contradictions and expanding them. If we

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understand the Act in this manner, playing out the contradictions and inconsistencies
between this Act and other laws is crucial to the development of the struggle.17

The author concludes by stating, the Forest Rights Act represents one key example of how
and why a rights based legislation comes about, as well as the constraints and possibilities
that it creates for people's struggle. The nature of progressive legislation, has been identified
as the tool for rights legislation as per the author, ‘they are neither lies and deceits, nor
wonderful instruments that will free people from oppression. They are compromised,
complex tools that can and will be used against people's struggles, but which can also be
used by those struggles themselves, provided that they are clear about their goals, actions
and strategies.’18

The essence that can be deduced from the article of S. Gopalkrishnan is that the regime of
rights legislation in India is an uphill battle. The article highlights issues with respect to the
legislative process, rights under the law governing forests were recognised after much
deliberation and discourse. In concord with the authors view, that there was a constant
struggle between the governing capitalist and governed bloc was the source of the tension.
The capitalist idea that the forest are a replaceable commodity, and are the exclusive property
of the State was a the core of the tension in my opinion. The author in the early stages of the
article highlights the issue with respect to the capitalist assumption, it is interesting to note
that such an assumption could stand the test of time for such a long time specially in India. In
India, a society which recognises the importance of forests since time immortal, the capitalist
assumption should have never been tabled in the first place however, the colonial government
is responsible for that . Many decorated authors of India have used the concepts of forests in
their writing to illustrate their stories, about how civilisations have thrived around forests.
The forests along with the ecosystem it sustains have found place in may religious texts of
India as well. In my opinion the capitalist before applying the assumption did not factor the
details which flow with the forest ecosystem. Forest are more than a commodity, forest
support various eco systems and many lives are dependent on its existence. It cannot be
disputed, as from the discussion above that the degradation of forest have an impact beyond
the territories of the forest. In India, many communities survive on the forest for their basic
needs to survive. There are indigenous societies in India which worship the forest and would
not want the ecosystem to be disturbed. The State shall recognise the rights of such
communities, as the article highlights the atrocities faced by the communities affected by the
forest management legislations. The atrocities could have been avoided if the state would
have developed a sustainable relationship between private property and commoditised
property, an opportunity the State missed, as noted by the S. Gopalkrishnan. The state should
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try to perceive the forest territory in different light, forest have to be placed at higher pedestal
than just mere piece of land that generates profit for the state. In my opinion it also important
to understand that the capitalist assumption for forest being used as a commodity finds an
intrinsic place in forest management legislation. The communities that thrive around forest,
trade forest produce to gain alternate commodities to sustain their society. To substantiate my
opinion further, There would be an adverse impact if the assumption is not factored while
deciding forest management policy. The forest is an abundant source of multiple resources, if
these resources are not protected through efficient legislation, the trade of such resources
would generate unfair competition and discord in the society. Therefore, it is essential that
future legislations aim to strike a balance between the two competing claims.

The author in the article discusses the political fallout behind such legislations. The NDA and
UPA governments respectively had a fair amount of time to legislate on the matter.
However, the legislation took substantial time to transform from its colonial predecessor. The
problem as the author correctly identifies, is not with lapse in legislative will or an issue of
enforcement. The issue as per the discussion above is that the law originated from a premise
of contradictory claims, therefore was bound to fail as no balance was struck. The
comparison of the forest management legislation to other legislation in the country is a proof
that rights based legislation have a wider degree of scrutiny than other laws, to simply
recognise a right and legislate on the subject is not as simple at it seems, countering claims
have to be satisfied through political discourse. Forest have played a significant role in Indian
Capitalism, thus the Indian State should prepare legislations, keeping in mind the fallouts of
capitalism. To conclude, in my opinion the most significant take away from the article, is the
manner in which the author address the issue. The author by enunciating the issue as a class
conflict and a fight for rights legislation is the perfect tactic in my opinion to highlight the
issue. The wait for the right to protect and conserve forests, is over. It is through the exercise
of these rights and powers that forest communities can get legal support for their struggle to
reverse the commodification of their homelands.

Bibliography
1. Krishnan, S. Gopal. Rights Legislations and the Indian State: Understanding The
Nature and Meaning of the Forest Rights Act. 2010. 10th March 2018.
2. T.N. Godavarman Thirumalpad and Ors. Vs. Union Of India and Ors . No. (WP
202/95). Supreme Court of India