The Supreme Court, through the instrument of the ‘Centrally Empowered Committee’ (CEC) constituted by it in one of the biggest and best known public interest cases relating to forests in India (Writ Petition No.202 of 1995), is now examining the issue of encroachments in forests and forest lands in the country. The hearings presently going on before the CEC are of far-reaching significance. If the Committee evades some critical and absolutely non-negotiable policy and legal issues concerning the question of encroachments, it could adversely affect the rights and interests of over 10 million tribals and other forest dwellers in the country. These issues are highlighted in what follows below.

Recognizing access to forest resources for survival

At the outset it needs to be stated and understood that in India the preservation of natural resources includes within its fold the competing claims of humans on these very resources for their sustenance and livelihood. With this understanding any approach for sustainable forest management in India has to necessarily factor in the reality that a very large number of people living in and near the forests - and depending on them - are among the poorest. The forests form life support systems for them. The legal regime governing preservation and use of forests must reflect this understanding.

Appreciating the National Forest Policy

The National Forest Policy 1988 recognises that the "lives of tribals living with and near the forests revolve around forests" and enjoined that "the rights and concessions enjoyed by them should be fully protected. The domestic requirements of fuel wood, fodder, minor forest produce and construction timber should be the first charge of forest produce". The policy further recognizes the symbiotic relationship between the tribal peoples and the forests and is also intended to safeguard the customary rights and interests of tribal people. The original Writ Petition No.202 of 1995 had also sought giving effect to the National Forest Policy. The recommendations of the Central Empowered Committee has to take into account this important aspect of forestry in India, so categorically pointed out by the National Forest Policy.

Evolving a discriminatory approach to encroachments

Apart from the above, over the last two decades even as the genuine forest dwellers have lived in fear of eviction, mafias have continued to encroach forests and alienate tribal land. There is a need to consciously distinguish between the authorised/unauthorized occupation of forests by dwellers for bonafide consumption, and the use of forest resources from the large scale timber and fuel wood smuggling and intensive commercial exploitation of forest resources. In the former case the so-called encroachment is a local and subsistence-oriented activity, while in the latter case it is a widespread organized industry largely driven by the mafia. The approach of the law and policy to the two situations cannot be the same.

Recognizing the widespread existence of forest-based conflicts

Apart from the above, over the last two decades even as the genuine forest dwellers have lived in fear of eviction, mafias have continued to encroach forests and alienate tribal land. The approach of the law and policy to the two situations cannot be the same.
Additionally, there are a number of core issues that are central to the resolution of forest based conflicts, and are integral to the question of encroachment. There are thousands of cases of local inhabitants claiming that they were in occupation of notified forestlands prior to initiation of forest settlements under the Indian Forest Act. There are a number of cases of pattas/leases/grants said to be issued under proper authority but which has now become contentious issues between different departments, particularly the Forest Department and the Revenue Department. The problem is compounded by the fact that in many cases there is no clear demarcation of forest lands. In fact most of the disputes and claims relating to use and access to forests have lingered on and evaded resolution in the past because of the failure to demarcate precisely the extent of the forest. All of these require remedies and an approach aimed at only evicting the forest-dwellers is worsening the situation, not remedying it.

Dealing with the set (not one) of the Guidelines on both sustainability and livelihood concerns in Forest Areas

While the Central Empowered Committee recommendations submitted to the Supreme Court last year pursue the 1990 guidelines (No.13-1/90-FP (I)) on the encroachment on forest lands, they totally ignore the set of other guidelines issued by the same Ministry, on the same day and undoubtedly on some other critical aspects of the same issue of encroachments. There were the guidelines/circular No.13-1/90-FP-(3) which categorically distinguish between the disputed "claims" and "encroachments". Another official circular of MOEF dated 18.9.1990 sought to address claims on notified forest lands contending that the local inhabitants were in occupation of such areas prior to initiation of forest settlement and rights under the respective forest laws.

The other set of guidelines include disputes regarding pattas/leases/grants involving forest land, the support for Centrally sponsored schemes for Association of Scheduled Tribes and Rural Poor in afforestation of degraded forests and the Constitution of Commission of Forest Villages into revenue villages and settlement of other old habitations. All of this needs to be treated as an organic package to deal with the issue of encroachments, and picking and pursuing only one of them is at best a lopsided approach to the problem.

Involving all stakeholders of Forestry Mangement

The present Chairman of the National Commission for Scheduled Casts and Scheduled Tribes has also pointed out in a representation to the Prime Minister that the scheme of 1990 appears to be totally forgotten and this has resulted in a very restrictive and one-sided approach of the law and the administration to the whole question of encroachment on forest lands. He further quotes Article 338 (9) of the Constitution, which mandates that the National Commission for Scheduled Castes and Scheduled Tribes shall be consulted "on all major policy matters effecting Schedule Castes and Schedule Tribes".

A process of resolving conflicts that fails to involve all those concerned – and thos ewho have a right to be consulted - is a process that doesn’t resolve but in fact accentuates the conflict.
This is followed by a strong assertion that while the Inspector General of Police issued instructions calling for eviction of the encroachers, "it is regretted that the Ministry of Environment did not consider this case important enough even to keep the Commission informed, not to speak of consultation under Article 338 (9)". Specifically, against the CEC he points out that "even this committee has not considered it necessary to associate the State Tribal Welfare Departments or the Ministry of Tribal Welfare, not to speak of consulting the Commission. These are constitutional authorities responsible for protection and welfare of the tribal people". The lesson is obvious: A process of resolving conflicts that fails to involve all those concerned – and those who have a right to be consulted - is a process that doesn’t resolve but in fact accentuates the conflict.

Recognizing the whole body of evidence to establish encroachments

The Central Empowered Committee has also recommended to the Supreme Court that only the First Offence Report issued under the relevant Forest Act shall be the basis to decide whether the encroachment has taken place before 25.10.1980 (the deadline fixed by it to regularize encroachments prior to that date). However, this is in violation of the directions of the Apex Court in an earlier case (Writ Petition No. 1778/1986) where it had clearly directed that "in all cases where the claim (for regularization of forest land) is not supported by documents, the committee should conduct an inquiry, receive evidence and then come to accept the claim".

In fact in the same case an interim report on the kind of evidence (and their prioritization) for regularization of claims on forestland, accepted by the Supreme Court, was significant. The report pointed out that evidence in support of claims should include the basic and primary physical evidence of the encroachment subsisting in the present with its historical and circumstantial implications, relevant documentary evidence, relevant oral evidence including therein the opinion based on the firm and definite knowledge of the Panch from the local community, and the findings/submissions of the local revenue and forest officials. In this light there seems to be no reason to rely only on the First Offence Report to decide whether encroachment has taken place or not.

Finally, Avoiding a sweeping and simplistic stance

In view of the sweeping and simplistic nature of the recommendations of the CEC before the Apex Court on the complex question of encroachment on forest lands, and in view of the fact that these recommendations would directly and adversely affect a large population of tribals and forest dwellers all across the country, the right intervention of the Court on the matter becomes imperative. It is best to remind all of us of what the Supreme Court itself said not long back : "while every attempt must be made to preserve the fragile ecology of the forest area and protect the Tiger Reserve the right of the tribals formerly living in the area to keep body and soul together must also receive proper consideration. Undoubtedly every effort should be made to ensure that the tribals when resettled are in a position to earn their livelihood." (AIR 1997 SC 1071).