BY MANASI KARTHIK AND ARPITHA KODIVERI
This article is a follow up to the recent development on the NTCA directive that has been the subject of a prior piece by the authors on the SLR Forum here.
On August 10th, 2017, eighty-five tribal hutments from the village of Vazhaithottam were razed to the ground. Irular and Jenu Kurumbar tribals classified as a ‘Particularly Vulnerable Tribal Groups’ occupied these houses that border the core zone of the Mudumalai Tiger Reserve in the State of Tamil Nadu.
A mere six months before this, the National Tiger Conservation Authority (NTCA) had issued a circular declaring that rights recognised under the Forest Rights Act, 2006 will not apply to Tiger Reserves in India.
In addition to being illegal and unconstitutional, the NTCA directive lead us into legal limbo. It inconsistently read two different provisions under two different laws: the Critical Tiger Habitat (CTH) under the Wildlife Protection Act (WPA) and the Critical Wildlife Habitat (CWH) under the Forest Rights Act (FRA). Conflating these two provisions created a loophole that violated the rights of forest dwelling communities.
To make matters worse, the Ministry of Tribal Affairs (MoTA) has now issued a response that further compromises and confounds forest rights. Instead of denouncing the violation of the FRA, the circular issued by the MoTA deems the directive to be a ‘temporary measure’. It also hands the responsibility for drafting guidelines for CWHs back to Ministry of Environment, Forests and Climate Change (MoEFCC).
Checks and Balances
In this alarming move, the MoTA undoes the careful balance of power written into the FRA by abdicating its responsibility as the nodal agency overseeing the Act. The MoTA is explicitly granted responsibility for drafting such guidelines so as to balance the conflicting interests of conservation and rights.
In addition to being the nodal agency for the FRA, the MoTA is also responsible for any and all matters pertaining to Scheduled Tribes on forest lands. These guidelines fall within the ambit of the MoTA because they pertain to the large majority of India’s Scheduled Tribes who have historically occupied forest lands.
But by requesting the MoEFCC to establish guidelines for Critical Wildlife Habitats, the MoTA is institutionalising a subtle hierarchy.
Much of this confusion is a result of overlapping jurisdictions that obscure authority. The MoEF, MoTA, NTCA are all different statutory bodies with different mandates functioning at different levels of government.
The NTCA came into existence through an amendment to the WPA issued in 2006. It was tasked with implementing Project Tiger, but this created a tussle for power within the forest bureaucracy itself. The NTCA was given the mandate to act independently as a statutory body in and of itself instead of simply functioning as a wing of the MoEFCC.
Soon after it was established, the NTCA got to work by issuing an illegal executive order that gave states ten days to hastily declare Tiger Reserves before the FRA was passed. Since then the NTCA has been active in overseeing tiger reserves, many a time overriding its own jurisdiction as in the case of the order issued in March this year.
The MoEFCC itself has had to step in to check its authority as in the case of a 2010 order that came on the heels of a series of FRA violations by the NTCA. In the order, the MoEFCC rebuts the NTCA emphasising that all provisions of the FRA must be complied with prior to displacement from Tiger Reserves.
The existence of the NTCA as a statutory body adds pressure to the plethora of institutions that oversee forests in India. The NTCA acts as an external agency coupling with the MoEFCC, in addition to which State Forest Departments and the Supreme Court’s Central Empowered Committee are themselves heavily weighted against the interests of marginalised forest-dwelling communities.
In the past, the MoTA has acted as a strong check as on Nov 12th, 2014 when it issued strongly worded directives accusing the MoEFCC of giving it ‘short shrift’ and asserting its right as the nodal ministry responsible for overseeing the FRA.
In a sudden turn, the MoTA is now abdicating its responsibility as a checking mechanism.This has skewed power in Tiger Reserves and effectively allowed the NTCA to act unilaterally.
A Simple Solution
The overlap between the MoEFCC, NTCA and MoTA has already been resolved legally insofar as tribal rights are concerned. In the case of a conflict of interest pertaining to tribal rights it is clear that the MoTA has the upper hand.
However, in addition to tribal communities, the FRA also provides for the rights of Other Traditional Forest Dwellers: non-tribal communities who have traditionally occupied forest lands. This too can be easily resolved by introducing a principle of negotiation between the MoEFCC and the MoTA.
Thus far, even though the MoTA is the nodal agency overseeing the FRA, this has only required consultation by the MoEFCC on matters pertaining to the FRA. However, a principle of negotiation can include a consent provision which requires the MoEFCC, the NTCA or any other statutory body to obtain consent from the MoTA prior to actions impacting the rights of forest-dwelling communities.
A State of Exception
Despite these evident solutions that could be easily operationalised, we have a string of executive orders that only confuse matters further. But this is no coincidence. Using executive orders to create confusion has always enabled the exercise of power. Modi did it with demonetisation. Trump is using this strategy to repeal healthcare reforms. And in the forests of India, these orders allow State Forest Departments to operate a rapacious post-colonial bureaucracy. The multiple, overlapping jurisdictions ultimately allow forest officials in Vazhaithottam to act with impunity, leaving them ultimately assured that they can find rationale for it in a legal haze.