I am not an expert. I am an enthusiast.
In this note, I discuss certain legal issues pertaining to human-animal conflict in and around forested areas, a critical subset in the study of forest and wildlife conservation as a whole.
I will restrict my discussion to my learnings in India.
My interest in the subject was piqued when I assisted my clients in setting up a conflict resolution trust in the state of Karnataka in the year 2014. I have been taking very small steps since to understand more. Of course, I will not even purport to dwell on the anthropological and/or scientific theories on the subject, I am not qualified to do so and it will be wise of me to leave such discussions to experts.
It is said that we now live in the Anthropocene geologic time period which is a time period described as being human influenced or anthropogenic based on overwhelming global evidence that atmospheric, geologic, hydrologic, biospheric and other earth system processes are now dominated and altered by humans[1]. I am not a person of science but it is not very difficult to understand the basis of this theory. Humans are making their dominance very obvious, are they not? Since I began to take an interest in the topic of this note, I have visited several buffer zones and learnt from people closer to the ground, some of whom I am still in touch with. I still receive news and updates. Recently, a message pinged from the Corbett National Park area and it might seem like a joke: “BIG FAT INDIAN wedding at BC (full name withheld for obvious reasons), a ‘resort’ next to my house in Corbett Tiger Reserve (we are in a ‘silent zone’, less than half a km from the boundary of the tiger reserve). What a joke! How are such things possible?! Are we such a deaf, blind, dumb and senseless nation?”
Let us now take a look at the laws of the land, shall we?
We have some of the most stringent legislations to protect wildlife and habitats. However, for the limited purposes of my topic of discussion, I will touch upon a handful of these legislations*, not to say that each of the other legislations do not in some manner relate to the possible resolution of human- animal conflict.
The Wildlife (Protection) Act, 1972 (Last amended in 2006)
The Wildlife (Protection) Act (WLPA), 1972 is an important statute that provides a powerful legal framework for:
- Prohibition of hunting;
- Protection and management of wildlife habitats;
- Establishment of protected areas;
- Regulation and control of trade in parts and products derived from wildlife; and
- Management of zoos.
in several categories of protected areas/reserves such as:
- National Parks;
- Wildlife Sanctuaries;
- Tiger Reserves;
- Conservation Reserves; and
- Community Reserves.
However, what interests me currently about The Wildlife (Protection) Act, 1972 (the “WP Act“) is that the Central Government has commenced a review of the WP Act. The mandate of the review is to bring the WP Act in tune with present-day challenges such as human-wildlife conflict, illegal trade of wildlife and forest produce, management of wildlife outside protected areas and population control of certain species. The Central Government may also consider revising the provisions of punishment and penalty for wildlife crimes in the revised Act. This development follows the release of the National Wildlife Action Plan (NWAP) 2017-31 (my personal opinion is that we must cut short the time period of the plan or categorically provide for periodic corrections!), which focuses on strengthening and enhancing the protected area network, on the conservation of endangered wildlife and their habitats, on controlling trade in wildlife products and on research, education, and training. An area the Central Government is likely to focus on is the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES“). CITES is an international agreement between governments to prevent unsustainable and illegal trade of wild animals and plants and India is obliged to undertake necessary steps to prevent illegal trade or transfer of wildlife and wildlife articles which are prohibited or regulated under provisions of CITES.
The Constitution of India
My personal holy book!
The Indian Constitution (Forty Second Amendment) Act, 1976 has introduced a directive principle of state policy in Article 48-A and a fundamental duty under Article 51(A)(g) for the protection and improvement of environment including forests.
Article 48-A: Protection and Improvement of Environment and safeguarding of forests and wildlife. The state shall endeavour to protect and improve the environment and to safeguard the forests and the wildlife of the country.
Article 51(A)(g): It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures.
The Constitution mandates that both the State and the citizens are under an obligation to protect and safeguard forests, which will have an impact on the environment. “Forest” was initially a ‘State’ subject covered by Entry 19 in List II of the VII Schedule. The Indian Parliament realising the national significance of the forest made changes in the VII schedule. Entry 19 in the List II of the VII schedule has been deleted and a new entry 17 A relating to forests has been introduced in the Concurrent List of the VII Schedule by the Constitution (Forty Second Amendment) Act, 1976. Thus, state governments as well as the Central Government can make laws relating to forest administration provided it is in consonance with the forest policy of the Central Government for preservation and development of the nation’s forest resources. The Indian Judiciary has also taken significant initiatives towards upholding the provisions in legislations and in the Constitution. One can only hope that relevant amendments to these provisions and proper application of the same can bring about much more change than what we see now.
The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
The Government of India announced thus: To address the adverse living conditions of many tribal families living in forests which was on account of non-recognition and vesting of pre-existing rights, a landmark legislation viz. Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (the “Forest Rights Act“), has been enacted to recognize and vest the forest rights and occupation of forest land in forest dwelling scheduled tribes and other traditional forest dwellers, who have been residing in such forests for generations, but whose rights could not be recorded.[2] Controversy has courted this legislation even before it was enacted. At the heart of the matter is whether tribal people should be able to veto projects, like mines and dams, on their lands.
The Forest Rights Act purports to do two things:
- Grants legal recognition to the rights of traditional forest dwelling communities, partially correcting the injustice caused by the forest laws; and
- Makes a beginning towards giving communities and the public a voice in forest and wildlife conservation.
Apart from land rights and user rights, (for the first time) the Forest Rights Act also gives the community the right to protect and manage the forest. Section 3 (1) (i) of the Forest Rights Act provides the right and the power to conserve community forest resources, while Section 5 of the Forest Rights Act gives the community a general power to protect wildlife, forests, etc. This is seen as vital for the thousands of village communities who are protecting their forests and wildlife against threats from forest mafias, industries and land grabbers, most of whom operate in connivance with the law enforcers.
Section 6 of the Forest Rights Act provides a transparent three step procedure for deciding who gets rights. First, the gram sabha (set up under the The Provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996 which is the full village assembly and NOT the gram panchayat) makes a recommendation, i.e., who has been cultivating land for how long, which minor forest produce is collected, etc. The gram sabha plays this role because it is a public body where all people participate and meant to be fully democratic and transparent. The gram sabha’s recommendation goes through two stages of screening committees at the taluka and district levels. The district level committee makes the final decision [see Section 6(6) of the Forest Rights Act]. The Committees have six members: three government officers and three elected persons. At both the taluka and the district levels, any person who believes a claim is false can appeal to the Committees and if they prove their case the right is denied [Sections 6(2) and 6(4) of the Forest Rights Act]. Finally, land recognised under this legislation cannot be sold or transferred.
The Forest Rights Act has been met with much concern and opposition from environmentalists and wildlife conservationists. Some of this opposition has been motivated by those who see the law as a land distribution scheme that will lead to the handing over of forests to tribals and forest dwellers (see Vanashakti, a group opposed to the Act, as an example). But the strongest opposition to the Forest Rights Act has come from wildlife conservationists who fear that the law will make it impossible to create “inviolate spaces”, or areas free of human presence, for the purposes of wildlife conservation. Tiger conservation in particular has been an object of concern.[3]
I also watch with keen interest the efforts for harmonisation of The Indian Forest Act, 1927 (as amended from time to time) with the Forest Rights Act and The Provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996 in coordination with Ministry of Tribal Affairs and Ministry of Panchayati Raj, Government of India.
But as I delve into the legal provisions I think are relevant to the topic at hand, I must mention that I am being exhorted to look at laws in general in a slightly different light by an unlikely influencer. I am reading the book, ‘The Republic of Beliefs, A New Approach to Law and Economics’[4] authored by eminent economist Dr. Kaushik Basu (former chief economic adviser to the Government of India), where the author explores such questions as When does the law become effective?, Why do some people observe the law and others flout them?, What circumstances trigger such different responses to the law? In this certainly abstract piece of writing, given the complex ways of a democracy and developing economy such as India, a certain fact emerges that the law is impeccable on paper but shoddy in implementation and then the associate problem of corruption arises. Dr. Basu argues that corruption can take many forms, but the heart of the corruption problem is the violation of the law. Perpetrated either individually or in league with a group of government officials or enforcers of the law (when the question “Why are human-animal conflicts on the rise in India?” is asked, the simple common answer is politics but I will not dwell too much on that- that is a subject matter of days worth of discussion.), corruption prospers in spite of the existence of a legal framework. There are also no satisfactory answers to why some laws work, some laws work partially and others don’t work at all- and this is one of the biggest failures of law and economics. Dr. Basu argues the ‘focal point approach’ as a solution- the ‘focal point approach’ is based on the belief that a better founded theory of law and economics should recognize that the outcome of a law is largely determined by its effect on the beliefs of people but the challenge is how to influence the beliefs of people in an effective way. Dr. Basu goes on to argue, inter alia, that a successful law is one that shifts human behavior by creating a new focal point in the game every stakeholder in society plays, i.e., creating a new focal point to shift the behavior pattern of people.** I will not indulge in a book review here- I must admit I will need to revisit the book again and again.
I leave you with these thoughts.
* This note was prepared for a speaking engagement (edited for publication here) and contains, in part, a compilation of resources drawn from information available in the public domain.
** To effectively summarise Dr. Kaushik Basu’s thoughts in this note, I have referred to Mr. A.K. Bhattacharya’s review published in the Business Standard on October 09, 2018.
[1] Information drawn from http://www.anthropocene.info and The Encyclopedia of Earth: https://editors.eol.org/eoearth/wiki/Anthropocene.
[2] http://pib.nic.in/newsite/PrintRelease.aspx?relid=108222
[3]https://en.wikipedia.org/wiki/The_Scheduled_Tribes_and_Other_Traditional_Forest_Dwellers_(Recognition_of_Forest_Rights)_Act,_2006
[4] Princeton University Press, 2017
Sira, Doi Aru Gur 