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The summer is just about setting in but the mercury has shot up and gone overboard. Forest fires raged in Perumalmalai in Palani Hills of Kodaikanal and the Nadugani forest range in Gudalur forest division in the Nilgiris in mid-March.
Many more are sure to follow, perhaps aided by the Madras high court’s ban on cattle-grazing in the national parks, wildlife sanctuaries and tiger reserves of Tamil Nadu – that is, if we rely on conservation science, which increasingly recognises and deploys regulated cattle-grazing as an effective ‘wildfire prevention tool’.
Close on the heels of the court’s order in February banning vehicular traffic at night on NH 958, connecting Coimbatore to Bengaluru through the Sathyamangalam Tiger Reserve, came its order to ban grazing in forests as well. On March 4, Justices V. Bharathidasan and N. Sathish Kumar of the Madras high court ordered authorities to not allow “any domesticated cattle to venture into the forest area for the purpose of grazing, throughout the forest area in Tamil Nadu”.
The petitioner, G. Thirumurugan, had actually demanded only a ban on the grazing by 1.25 lakh heads of cattle by around 250 families in the Meghamalai Wildlife Division and Sanctuary, a part of the Srivilliputhur-Meghamalai Tiger Reserve. But the court expanded the scope of the case and banned grazing on at least 22,877 sq. km, or 17.59 % of the state, which is also the state’s recorded forest area. This verdict provoked outrage across the Tamil Nadu part of the Western Ghats and triggered protests.
At the insistence of the amicus curiae, T. Mohan, who argued that cattle-grazing has been recognised under the Tamil Nadu Forest Act 1882, the court then revised its order on March 17. Now, cattle-grazing became legally permissible in forests outside tiger reserves, sanctuaries and national parks. In effect, the verdict removed 8,101.79 sq. km, or 35.42 % of forests and 6.23% of the state’s total area, from Tamil Nadu’s grazing area – even from those who were legitimate right-holders.
The court thus rewrote the provisions of two major laws that the Parliament had enacted in 2006 – both of which were designed to protect, preserve, conserve and manage forests, wildlife and biodiversity.
Whither the laws
The 2006 amendment to the Wildlife (Protection) Act (WLPA) 1972 rendered tiger reserves a statutory category and prescribed provisions for their notifications. The government has since notified 52 tiger reserves.
According to the WLPA, Tamil Nadu had to prepare a ‘tiger conservation plan’ to protect the agricultural, livelihood, developmental and other interests of the people living in tiger reserves. The core area, the critical tiger habitat, is to be established “without affecting the rights of the Scheduled Tribes or such other forest dwellers” while the buffer area should promote “coexistence between wildlife and human activity with due recognition of the livelihood, developmental, social and cultural rights of the local people”.
Separately, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 – a.k.a. FRA – recognised “grazing (both settled or transhumant) and traditional seasonal resource access of nomadic or pastoralist communities”. That is, it accorded community rights to the village to be regulated by its gram sabha, and not an individual grazing permit to be granted on payment of the prescribed fees by the forest department.
The FRA also listed “traditional grazing grounds” as specific evidence to determine community forest resource rights. The FRA defined this right as “customary common forest land within the traditional or customary boundaries of the village or seasonal use of landscape in the case of pastoral communities, including reserved forests, protected forests and protected areas such as Sanctuaries and National Parks to which the community had traditional access”.
Significantly, the gram sabha, and not the forest department, has the authority under FRA “to protect, regenerate or conserve or manage any community forest resource”. Ergo, the gram sabhas now have the authority to regulate cattle-grazing.
A most laggard state
The FRA has been operational since 2009. The amount of forest land within revenue boundaries in Tamil Nadu was 19,199.61 sq. km in 1,405 villages in 1999, 19,001.41 sq. km in 1,938 villages in 1991 and 15,826.93 sq. km in 1,808 villages in 2001. This is the minimum potential area with forest rights in the state that the Union Ministry of Tribal Affairs, the nodal ministry, had asked the states to go by back in 2015.
According to the latest data available with the ministry, as on October 31, 2021, of the 1,082 claims for community rights received in Tamil Nadu, including that for grazing, 450 titles had been issued and 86 claims had been rejected. But the area recognised and entitled to the gram sabha has never been reported or is not available, according to the ministry.
Some 8,144 individual rights titles were issued out of 33,755 claims for an area of 96.26 sq. km – a paltry 0.5 % of the minimum potential area and 0.4% of the recorded forest area of Tamil Nadu.
If we are to interpret these figures together with the modified court order in the cattle-grazing case, we effectively have a near-total ban on grazing in all forests across Tamil Nadu – while the forest department continues to collect fees for grant of cattle-grazing permits, thus earning a sizeable revenue to this day.
Strikingly, the two court orders referred here do not allude to any of the relevant provisions in law that pertain to the forest rights of forest-dwellers and grazing rights in the WLPA and FRA. Instead, the archaic colonial-era Tamil Nadu Forest Act 1882 – including the provisions that are no longer valid in law – finds mention.
These orders could reverberate across other courts in the country, thus ironically undoing the FRA – which was enacted in the first place to undo colonial injustices.
C.R. Bijoy examines resource conflicts and governance issues.