Rights

Why Adversarial Court Action Won't Solve Disputes Over Forest Governance

Issues tied to forest governance require a collaborative approach rather than narrow court action on the Forest Rights Act.

The Supreme Court order related to the “eviction” of tribal and forest-dwelling communities has made big news.

The February 13 order directing state governments to initiate action against all those with “rejected” claims has reignited longstanding ideological disputes over India’s forest governance. Reactions to the recent order in a case filed by Wildlife First and Ors (WP (C) 50/2008), challenging the constitutional validity of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA), have pit elite conservation against local forest livelihoods and protection of wildlife versus Adivasi and forest-dwellers’ rights.

This order came in an 11-year-old case where state governments were directed to initiate eviction proceedings against all rejected claims and submit action taken reports before the court.

Two weeks later, the Central and Gujarat government intervened, requesting the court to withhold the eviction, citing poor processing of claims due to lack of evidence and administrative limitations. The February 28 order now requires all state governments to submit details of how and why claims were rejected and whether evictions proceedings have been issued based on “sketchy, incomplete information and data”.

Also read: This Is How States Illegally Rejected Forest-Dwellers’ Land Claims

While this case is now predominantly about challenges in the implementation of the law on forest rights, it pushes a complex set of issues tied to forest governance into the highest court of law. Courts are structurally incapable of resolving a conundrum created by many factors. There are several reasons why the case and its outcomes may not be productive for either side. Three of these are highlighted below:

Firstly, the bureaucratic interpretation of the FRA has reduced its scope to the settlement of rights involving filling forms, submitting applications and receiving titles. Successive governments have supported this understanding and the court’s proceedings have also gradually limited itself to this aspect. In its design, the FRA recognises pre-existing rights and creates the possibility for decentralised community-based forest governance.

This governance model could be through the sole decision-making of the rights-holders or through a variety of partnerships. These partnerships could work towards varied outcomes ranging from commercial use to conservation of forests. It does not foreclose the option of wildlife management that may require the creation of areas with no human dependence.

The second is the political economy of legal enforcement in a country like India. Most environmental and rights-based laws are subject to gross misuse and misappropriation. So, the petitioner’s submission that there are bogus claims being made to “encroach” forests is as plausible as the argument that genuine claims are being rejected. Both these forms of ‘misuse’ of law are two sides of a coin. They require the support of a corrupt administration, which may involve the forest, tribal affairs or revenue bureaucracy and the political class.

Also read: How the FRA Is Being Cut Down to Size, and Tribals With It

It is very important to find out what exactly is going on in each of these cases, but the intervention of the highest court may not lead us to those nuanced facts that could help to take effective actions in the interest of genuine victims. These instances of misuse, however, cannot cast a shadow on the legitimate objectives of forest and wildlife conservation or Adivasi and forest peoples’ rights.

Any orders to evict without understanding the circumstances of each case and revealing the powers that subverted the law could lead to a gross miscarriage of justice. It would also damage the possibilities of radical institutional change in forest governance.

Thirdly, though the debate about this court case seems to lurch between two extremes, there are many common concerns between those who prioritise wildlife conservation and forest peoples’ rights in the context of the FRA. The skewed implementation of this law, the protection of forests ecologies, human-wildlife conflicts, the capacity of communities to push back extractive projects and the lack of emphasis on community forest rights are examples of this.

The common ground is even greater if we start discussing how the forces of climate change and human and animal migration have hurt these challenges in unprecedented ways. The fates of the Bengal tiger and the human inhabitants of the Sundarbans are tied to climate-induced devastation. Recent studies show megafauna like the Asiatic elephant and the tiger are seeking out new territories – including amidst human settlements.

Many on both sides of this case would agree that the state and scale of planetary uncertainties warrant a review of our positions and methods precisely because partisan politics is least interested in responding to these challenges.

Ameliorating systemic injustices against forest dwellers and the conservation of non-human species are extremely crucial in today’s times. But to realise these goals on the ground we require creative and collaborative projects at scale that build on a rich common ground rather than narrow and adversarial court action on the FRA.

Kanchi Kohli and Manju Menon are researchers at the Centre for Policy Research, New Delhi.