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Rights to the Forest: Editorial Introduction

Updated: Sep 23

SLR Editorial Board

 

The enactment of the Forest (Conservation) Amendment Act 2023 marks a seminal shift in India's approach to forest governance. This amendment fundamentally redefines the term “forest” by restricting it to land officially designated as such by state and central authorities. This new, narrow definition diverges sharply from the broader interpretation that previously encompassed a wider array of forested areas, thereby significantly altering the landscape of forest conservation and management in India. Crucially, there is also no engagement or even mention of the most important stakeholders of the forests, i.e., tribal communities. 


The implications of this legislative change are profound. By focusing exclusively on lands formally notified as forests, the amendment exposes vast tracts of previously protected areas to commercial exploitation. Crucially, the Amendment Act permits the exclusion of forest regions within a 100 km radius of borders for “national security” and “defence” purposes, further complicating the conservation landscape. Moreover, the revised definition appears to marginalise the rights of Indigenous communities who have historically depended on these lands for their livelihoods and cultural practices.


The effects of this shift are already evident. Reports indicate that approximately 40% of the Aravalli range now falls outside the newly defined scope of “forest,” while the Dongria Kondh community faces the loss of access to the Niyamgiri Hills, with 95% of this region unclassified under the new criteria. Such developments not only threaten the ecological balance but also undermine the principles of decentralised governance and the recognition of Indigenous rights. 


In response to these critical issues, the SLR Forum is launching a series of essays that delve into the complexities of conservation, environmentalism, and development within the context of this amendment. We aim to critically interrogate the impact of these legal changes on Indigenous rights and forest governance, fostering a nuanced dialogue on the intersection of law, environment, and indigenous sovereignty. Further, using the Amendment Act as a point of departure, we aim to use this Forum Series to raise larger and more fundamental questions about the multiple and intersecting rights - as opposed to a one-dimensional right - to the forest. Towards that end, we are delighted to publish five pieces that reflect on these concerns from different perspectives.


In the first essay titled “The Tribal Tapestry: Exploring the Social Evolution of Indian Tribes through Indigeneity and State Dynamics,” Kumarjeeb Pegu sets the theoretical framework for this Forum Series by analysing the nuanced socio-legal landscape surrounding indigenous communities in India. This essay examines how Indian tribes may be juxtaposed with broader international Indigenous frameworks, thus emphasising their marginalisation and advocacy of land rights and autonomy. Further, the essay critiques India’s constitutional provisions for Scheduled Tribes, drawing attention to their limitations and historical inertia. In doing so, this essay highlights ongoing challenges in balancing cultural preservation with socio-economic advancement within India’s legal framework.


Against that backdrop, in the second essay titled “The Systematic Dismantling of India’s Forest Rights Act Through the Amendments to the Forest Conservation Act,” Meenal Tatpati critically reviews some of the provisions of the Forest (Conservation) Amendment Act, 2023 vis-à-vis the Forest Rights Act, and examines the effect they will have on the scheduled tribes and other traditional forest dwellers. She also argues that the envisaged amendments also derogate from India’s commitments under various international law instruments.


In the third essay titled “The Folly of Ignoring Indigenous Rights over Forest and Resources,” Kriti Sharma gives an account of the Indian state’s attitude towards Indigenous communities and finds that it often reduces such communities to passive beneficiaries of development, as opposed to acknowledging their sacrosanct rights to self-determination and self-governance. Further, she argues that the recent amendments to forest laws further derogate from these rights and signify a discernibly troubling trend towards diminishing the role of Indigenous communities in forest governance. Against that backdrop, she stresses the urgent need for a paradigm shift, by recognising and reinforcing the rights of Indigenous communities as being fundamental to the equitable and sustainable governance of forests.


In the fourth essay titled “Missing Trees, Cancelled Rights: Does Compensatory Afforestation Negate Forest Rights?” Patrik Oskarsson and Sarthak Shukla critically reflect on the impact of the Compensatory Afforestation Management and Planning Authority (CAMPA’) on forest governance and rights enshrined under India’s Forest Rights Act (‘FRA’). The essay notes that while initially, the FRA intended to empower local communities by transferring the rights to manage forests from state forest departments to villages, the CAMPA has reversed this by vesting control in state forest departments again, thus derogating from the objectives of the FRA. Further, the essay reveals significant issues with transparency and accountability under the CAMPA regime, arguing that compulsory afforestation fails to address its objectives and lacks meaningful community engagement — effectively negating the rights sought to be secured under the aegis of the FRA.


Lastly, in the fifth essay titled “India’s New ‘Climate Right’: Boon or Bane for Climate Justice?” Birsha Ohdedar comments on the Indian Supreme Court’s March 2024 judgement in the case of MK Ranjitsinh v Union of India, wherein the Court expanded the Right to Life to also include the right to be protected from the impacts of climate change. In its reflection on this judgement, the essay argues that this legal development is in consonance with global trends, wherein courts address climate issues. However, the essay also notes that this verdict has sparked considerable debate. Accordingly, the essay concludes that while this ruling potentially empowers climate action, this new "climate right" may also reinforce existing inequities if not integrated within a justice-centred framework. 


Together, these five essays highlight how evolving legal and policy frameworks in India often undermine the rights of indigenous communities and other stakeholders. Prof. Pegu’s foundational analysis of the Scheduled Tribe identity in India is echoed through Meenal Tatpati’s critique of forest law amendments, which jeopardise their rights. Prof. Kriti’s examination of the state's diminishing recognition of indigenous autonomy underscores a troubling trend that is mirrored in the critiques of CAMPA’s impact on forest governance by Prof. Oskarsson and Sarthak Shukla, who also bring out concerns about transparency and state accountability. Finally, Dr. Ohdedar’s reflection on the ‘climate right’ judgment underscores both potential and pitfalls in integrating climate justice into our current legal frameworks. Together, these essays advocate for a paradigm shift that centralises indigenous rights within legal and policy reforms for true equity and sustainability.

 

 Feature Image: Saul Leiter 


This post is part of a series on "Rights to the Forest." Read the other posts here.

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