The National Democratic Alliance’s draconian draft forest law is about to hit India’s federal character. It will be an affront to the federation and a threat to right to life of forest dwellers.
The Forest Act, 1927 apparently aimed to protect forests. In that name, forest officers have assumed higher powers over forest dwellers, and forest guard appears to be a real embodiment of government authority. As per the Act, the moment an area is declared as forest land, the forest bureaucracy will get immense discretion and huge power to summarily arrest and prosecute forest dwellers.
Had state governments not used their discretion against prosecution, several hundreds of thousands of innocents would have been in jails. Atrocities by forest personnel on dwellers is one of the main causes of left-wing extremism spreading in India.
Given all this, it is surprising that the draft forest Bill 2019 proposes to give more powers to the bureaucrats.
Until the Forest Rights Act came about in 2006, the forest guards were denying even residential rights to those living on certain land for generations. The law recognised tribals’ right to live in a forest without owning it.
After granting forest rights and implementing the law, the corruption of forest officers also came to light. While the FRA can help forest dwellers live in their natural habitats, those who are unjustly declared encroachers have to leave. The process of recognising the rights of forest-dwelling tribals and other traditional dwellers is fraught with defects, deficiencies, negligence and corruption.
The previous Narendra Modi government drafted a new Indian Forest Bill, 2019 (Draft) which increased the powers of forest officers. In this draft Bill, to replace colonial-era Act, the Centre has proposed to retain and enhance policing and quasi-judicial powers that forest officials were arbitrarily exercising. It provides them more powers to use firearms. Dangerously, they were also provided with higher levels of immunity from prosecution.
Harming the Forest Rights Act
If the Bill is passed, the forest bureaucracy will secure a veto power over the Forest Rights Act, 2006. They may even deny or extinguish tribals’ rights over traditional forests, though recognised under the FRA, reduce or restrict access to forest produce, and diminish the role of gram sabhas by running a parallel system of “village forests” in which forest officials will have the final say.
In fact, several reports show that forest officers are deciding the rights of the tribals under the FRA, though they are not legally authorised to do so. With this draft, “village forests” of officers will decide people’s fate – with the required authorisation – and render gram sabhas useless.
Impinging on states’ authority
In addition, draft enables concentration of power in the hands of Centre, jeopardising states’ authority over forests. The Centre will get new powers such as:
- To intervene in the states on matters of management of forestlands,
- To overrule states on several counts when it deems fit, and
- To open any patch of forests it deems fit for commercial plantations through either the forest administration or through private agencies.
Weapons to forest officers
Forest residents suffered forcible evictions under the earlier Act. The draft Act now wants to equip forest officers with infrastructure and weapons. It says:
“[The] State Government/Union Territory Administration shall develop the infra-structure for standardized lock-up rooms for housing the accused, transportation of accused, provide necessary articles for restraining the accused(s), armouries, safe custody of arms, ammunitions, shields, batons, helmets, armours, wireless, etc. to the Forest-officers for implementing the provisions of this Act [in each forest division of the country within two years].”
Some offences that were bailable under earlier Act have been proposed to be made non-bailable.
Presumption of guilt
While established principle of criminal law mandates presumption of innocence until the guilt of an accused is proved beyond reasonable doubt, the draft creates a presumption of guilt of forest dwellers. They then have to prove their innocence.
A clause in the Act says, “the burden of proving which shall lie on the accused, that such person is in lawful possession of forest land, forest produce, custody or control of such property and the person has not committed any offence against the Act.”
This is a reversal of the basic principle of criminal justice established all over the democratic world. For forest crimes, how can the law be different? The proposed law should be declared unconstitutional, as it violates Articles 14 and 21 of the constitution.
The powers of the forest officials to investigate, search and seize property, and hold inquiries by forcing witnesses to attend have been retained and in parts enhanced.
The draft also proposes “to provide indemnity to Forest-officer using arms etc, to prevent the forest offence. This indemnity shall be in addition to the immunity provided under section 197 of Code of Criminal Procedure 1973 for certain categories of Public Servant.” This immunity is on par with that was given to security forces in conflict areas under the Armed Forces (Special Powers) Act. Forest officers will be more powerful and immune than government officers under general provisions of the law.
The clause on immunity says, “No Forest-officer shall be arrested for any offence alleged to have been committed or purported to have been committed in discharge of his official duties, without causing out an inquiry by an authority to be notified by the State Government for the purpose.”
Surprisingly, the state governments also will not have the power to grant sanction for prosecution against forest officers for excesses and wrongs, unless they constitute an inquiry under an executive magistrate. Another clause says: “Whoever attempts to contravene, or abets the contravention of, any of the provisions of this Act or of any rule of order made thereunder shall be deemed to have contravened that provision or rule or order, as the case may be. That any person, forest officer, any officer of the State Government cannot withdraw forest offence cases registered under the Principal Act.”
According to Union Government this clause has been introduced to “to dissuade political executives to incite masses against the provisions of the Act. Many State Governments have withdrawn cases registered under the Indian Forest Act, 1927 to draw political mileages. Such action has to curbed with heavy hand, because the results are disastrous. Porosity is the root cause of destruction of prime forest areas.”
This draft proposes to punish an entire community for certain wrongs. A clause says: “Whenever fire is caused wilfully or by gross negligence in a reserved forest, or theft of forest produce or grazing by cattle occur…the State Government may…direct that in such forest or any portion thereof, the exercise of all rights of pasture or to forest-produce shall be suspended for such a period as it may think fit.”
If this draft is made into Act, which is possible because the NDA has the required numbers, the government of independent India will be credited with creating a law more draconian than the British Indian Forest Act.
M. Sridhar Acharyulu is a former central information commissioner and is now professor at Bennett University.