In the Name of Law

Legality, Illegality and Practice in Jharkhand Forests

This paper looks at the manner in which forest tenures in Jharkhand violate the basic principles of the Indian Forest Act, and the way in which many forest practices of both the state and people, straddle a grey zone between legality and illegality.
SUDHA VASAN
he legal frameworks regulating access to and control over forests, which form a third (29.61 per cent) of Jharkhands geographical area, are central to the survival, livelihood, social, cultural and religious life of local people, and are particularly critical for adivasis, scheduled castes and women. In this essay, the focus is on the gray zone between legality and illegality in the forests, where a surprisingly wide range of practices of the state and consequently of society lie. The legality is understood here from the perspective of disempowered people, a perspective shaped by actual practice rather than the written word of law. Clearly in Jharkhand, it is not only the written law that affects forest access. Lack or denial of information and confusion about legal rights, wilful and unthinking misinterpretation of law, and its blatant violation lead to alienation of adivasis from forests. In addition, many of the forest tenures in Jharkhand are illegal by the standards of the Indian Forest Act.1

Illegal Foundation of Legal Tenures

The Indian Forest Act (IFA) (1927) forms the legal foundation of all forest ownership, use and management in India. Almost all forests in Jharkhand are classified as either reserved forests (RF: 18.5 per cent) or protected forests (PF: 81 per cent). The IFA has established strict legal procedures for the creation of RF and PF to ensure that prior rights are not summarily destroyed. For instance, Sections 3 and 29 allow only lands that are government property or where government has some proprietary rights to be declared PF or RF. Sections 7 and 29 require an inquiry into pre-existing rights of villagers before such declaration. Sections 6, 21 and 31 specify that a vernacular notification of intent is essential. All these sections were violated in the creation of RF and PF in Jharkhand. In Singhbhum region, for instance, adivasis had specific and extensive rights in lands declared as PF. Several old abandoned village sites and burial grounds (sasandaris) found inside RF, indicate that adivasis lived here prior to state reservation. Haines (1904, 1910), Schlich (1885), Phillips (1924) and Areeparampil (1988: 38-40) list hundreds of sites within RF where evidence of abandoned tribal villages are found. Yet, no inquiry was undertaken to record these rights, nor was there any vernacular notification before declaration of these areas as RF or PF.2 Areeparampil (1988: 7-8) records that owners received no compensation, no proper demarcation was done, and notifications for protection were not renewed after 30 years as required under the IFA. A settlement officer in Singhbhum notes that reservation was the one great encroachment on khuntkatti (original settler) rights

in Khas Porahat [Macpherson 1908: 160]. He also states that in an overwhelming proportion of cases the forests are the property of a Mundari or Ho group, which has always possessed full rights within the village. This being so, the government and its successor-in-interest cannot conceivably have any rights in the waste or forest land in these villages, unless, as in some khuntkatti villages in Ranchi, he has forcibly acquired them by seizure, followed by a long period of peaceful possession. Whether such a description is applicable to reserved jungles it is unnecessary to discuss. Government certainly never has any rights in the unreserved jungles and wasteland (ibid: 146). Colonial settlements also record that an actual demarcation of protected forests was done with the support of armed forces [Appendix VII in Macpherson 1908]. This history of creation of protected forests through sleight of hand and blatant violence has unfortunately continued in independent India. Over 20,000 sq km of PF have been created after independence in undivided Bihar, most of it in Jharkhand, through nationalisation of a category called private protected forests (PPF), which was zamindari land on which tenants had rights. Several records suggest that acquisition of these lands and classification as PF violated legal procedures laid out in IFA. At the time of British settlements, vast collectively used forests were already under the control of zamindars. Other villagers, however, continued to have user rights in forests designated bahar or katat jungle. Zamindars gradually separated some forests as bhitar or rakhat jungle which they reserved for their own use and future sale. The colonial state first attempted to control these forests by converting them into reserves under the IFA (Section 38). However, this required zamindars consent which was not forthcoming. Therefore, in 1946, the government designed a new law (accepted in 1947) that unilaterally took over management rights over these forests. This Private Protected Forests Act (PPFA) allowed the state to unilaterally take over management of zamindari forests, although it recognised proprietary rights of zamindars and all existing user rights. The section 42 of PPFA promised to pay an allowance to zamindars and give them the entire net revenue realised from these forests. Zamindars vehemently opposed this act, and large areas of forests in Jharkhand were liquidated and destroyed immediately prior to the passing of the PPFA. No revenue was paid to zamindars. Instead, these forests were eventually taken over completely by the state using the Bihar Land Reforms Act (1950). Forests used collectively became PF without due inquiry or settlement of pre-existing rights. Mundari khuntkatti (MK) forests, a special munda tenure where original settlers had significant customary rights, were also

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treated as zamindari forests and appropriated. Roy Burman (1986) reports on the extent of appropriation: 140 out of 203 units of PPF in one thana (sub-district unit) alone were of MK status. Some MK forests have been reclaimed through Bihar High Court, 3 arguing that the Mundari khuntkattidars under customary law were not zamindars, only trustees managing land on the communitys behalf. The Illegal appropriation of adivasi forest rights in Jharkhand continues today. Khatian II, the section of the village record of rights that records user rights and common rights to land and forests, are systematically disappearing. Existing records are getting destroyed and new land settlements ignore such records (see Upadhya this issue). Any area declared RF is seen as entirely outside the scope of the land survey and settlement procedure [Prasad 1970: 48], and rights in these areas are not recorded. Even in PF: Under the government notifications, authorising survey and settlement in the district, the existence, nature and extent of the right of any person, whether a landlord or a tenant or others, to take forest produce from jungle land or wasteland or to convert land into Korkar, were not to be recorded in respect of any area which have been declared to be Protected Forests, under the Indian Forest Act, 1927. Accordingly, such rights, in respect of protected forests have not been recorded in the present settlement in respect of any village (ibid: 48). The legally recorded forest rights of adivasis are thus being appropriated without compensation through procedural sleight. Where settlement has not extinguished rights, the Supreme Court has stepped in. Adivasis have user rights in many miscellaneous common lands classified in revenue records as gair mazrua am. These include scrub lands (jhadi/jhanti), sacred groves (sarnas/jaherthans) and sal forests (sakhu). These and many MK lands are described as forests in colonial land records. Such lands only occasionally have trees, and have been used and controlled by local communities for long. Such areas are now under the threat from a 1996 Supreme Court Interim Order in the Godavarman case (202/95) that brings all lands recorded as forest in government records under the preview of the restrictive Forest Conservation Act [FCA 1980] and forest department control. State forests have been and are being created in Jharkhand through illegal means, violating the states own laws. It is in this context that the argument on illegal encroachment of adivasis in protected forests and their eviction needs to be seen.

recorded as forests, while some were distributed to landless people by the revenue department. On some of these lands, adivasis have been cultivating for many years, sometimes generations. Meanwhile, another Supreme Court interim order in the Godavarman case in November 2001 further restrained regularisation of forest encroachments and asked state governments for a report on the extent of encroachment in their states.5 Citing this court order, MoEF issued a circular in May 2002 instructing forest departments to evict all ineligible encroachers on forest land before September 30, 2002. This resulted in a spate of eviction notices in many states, and some instances of violent eviction of forest dwellers from disputed lands. In response to the public outcry, MoEF clarified in May 2002 that there had been no change in policy regarding the regularisation of pre-1980 eligible encroachments. However, states were encouraged to show progress in clearing all ineligible encroachments. Apart from the blatant attempt to settle land disputes in favour of the state through fiat, the ground-level impacts of these court orders and MoEF circulars have been drastic [Sarin 2003]. Rao (this issue) notes that secretive government orders (issued by the Dumka district collectors gopaniye (secret) branch) in 2002 attempted to cancel legal pattas given by the state on revenue land and sakhu and jhanti jungles described as forests in records. In Singhbhum, 30 eviction notices examined in 2003 were all for encroachments under five acres, mostly one or two acres of land. The majority of encroachers are too poor to use the legal system to establish their rights, and such cases come to light mainly when activists or non-governmental organisations take them up. Without an active organisation, the life and livelihood of marginal farmers and adivasis are under serious threat from forest law, policy and practice. Promises to regularise forest encroachments appear before every election, but disappear thereafter. Unfortunately, the debate on this issue continues to be framed as environment versus the development needs of a growing population. It fails to distinguish different scales of encroachment, to question the illegal status of state property, or establish the ecological status of the land cultivated. The turf wars surrounding the Scheduled Tribes (Recognition of Forest Rights) Bill in Parliament (currently being revised) follows much the same logic.

Tenuous Nature of Legal Guarantees

The Chhotanagpur Tenancy Act (CNTA) and Santhal Parganas Tenancy Act (SPTA) reflect the history of adivasi revolts to protect their forest rights and livelihood. They provide legal protection to customary law and practice. For example, Chapter XI (Section 76) of CNTA establishes precedence of custom, usage or customary right even over the act; Chapter XII allows for the preparation of a record of rights (khatian), recording all preexisting conditions such as the existence, nature and extent of the right of any person (landlord, tenant or other) to take forestproduce from jungle land or wasteland, or to graze cattle on any land, or to take fish from any water, or any similar right, in any village in the area to which the record-of-rights applies; and the right of any resident of the village to reclaim jungle land or wasteland, or to convert land into korkar.6 Legal guarantees have little value in a context where the state wilfully and systematically destroys them through contravening laws or bureaucratic and political process. As discussed earlier,

Evicting Encroachers
The forcible eviction of adivasis from forests that have been illegally appropriated from them is the final irony of this process of alienation. While it is undeniable that there are largescale individual and institutional encroachers on forest land, there are also in Jharkhand small and marginal farmers, often adivasis and dalits, cultivating small plots of land classified as forests. In 1990, the ministry of environment and forests (MoEF) issued a circular to record and evict encroachments on forest lands.4 Apart from the illegal manner in which forest land was appropriated in Jharkhand, the jurisdiction of the forest department over some of these lands is ambiguous. As discussed before, some zamindari lands taken over under land reforms were

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without any formal legal changes, rights are being lost as Khatian Part II are not being prepared. Adivasi rights are simply not recorded in lands managed under the IFA, and RF and PF are brought outside the scope of legal rights settlement processes. In Singhbhum, the chief conservator of forests even objected to PF being included in the last cadastral survey and settlement [Prasad 1970: 48]. However, it was finally included in the survey without recording any peoples rights in these forests. Although a Khatian Part II was prepared during this settlement, this includes only customary rights in village forests.

Forest Cases: Guilty until Proved Innocent

Forests have been one of the first targets of anti-state movements in Jharkhand from the Birsa Munda revolt in late 19th century to the Jangal Katao Andolan that swept Kolhan in the 1970s to more recent (1990s) movements for statehood. In popular discourse, the forest department along with the police is perceived as an oppressive face of the state. In response, forest destruction has been used as a political statement in mass struggles. This perception has been additionally fuelled by the use of forest cases as a tool of harassment and threat in the hands of the powerful in Jharkhand. Forest cases are easy to file, lead to immediate arrests, and the burden of proof which is extremely difficult to establish lies with the accused. In addition, there is considerable ambiguity and confusion at the village level regarding forest boundaries, rights and changing laws and policies. Transgression of forest laws for subsistence or due to ignorance needs to be distinguished from violation for political or profit motives. Moreover, little distinction is made based on the scale of offenses. The perception that forest department field staff are corrupt and highhanded is common, more so among adivasis. Forest cases, villagers claim, are filed on anyone who protests injustice, refuses bribes, or questions corruption. Forest cases are filed to settle personal disputes. In case of actual illegal felling, poor or less powerful villagers may take the fall irrespective of evidence. When a villager is caught in a petty forest crime, other cases are added on. Frequently, forest cases are filed for kaanapurthi when there is an inquiry/inspection by higher authorities, field-staff file cases against the least influential villagers to show that they are working. The circumstances of selective cases examined supported this popular perception. Forest cases featured prominently in a writ petition filed in the Supreme Court in 1983 by Mathew Areeparampil (director, Tribal Research and Training Centre, Chaibasa) and four adivasis (Lonjo village, Singhbhum district), against the atrocities committed against adivasis.7 The Supreme Court stayed all forest cases filed against adivasis in Singhbhum between 1978 and 1983. Under court orders, the chief judicial magistrate of Singhbhum submitted a report that showed that 1,562 of the 5,160 pending cases were forest cases. In 1,430 forest cases pending since 1961, no charge-sheets had been filed and yet adivasis were languishing in jail. Adivasis, lawyers, non-governmental organisation representatives and activists were unanimous in their condemnation of the majority of forest cases as unfair and unwarranted harassment. Forest cases are a prevalent reality for poorer villagers and adivasis rather than a rare occurrence. In Hazaribagh forest division alone, there were 96 cases registered in 2002-03 and

an equal number in the previous financial year.8 About 85-90 per cent of these cases were for felling timber or for violation of transit rules, and about 8 per cent were for encroachment on forest land. Most lawyers interviewed confirmed the frequency of forest cases filed on adivasis with meagre evidence. Both lawyers and some officials acknowledged, although for different reasons, that the forest department lost a majority of cases that went to trial. Many accused villagers did not have the money, time or ability to post bail or pursue cases by paying lawyers and completing legal formalities. Given the long time taken for trial, adivasis and dalits languish in jail irrespective of their guilt or innocence. A serious review of conditions under which forest cases are filed, severity of offences, burden of acceptable proof, ease of filing forest cases, and time limits for prosecution is urgently needed. The powers of a government bureaucracy to file cases that result merely in harassment need rethinking. While this practice of the forest department is not strictly illegal, it is certainly illegitimate in that it violates the spirit of law.

Community Forest Management: Legal or Legitimate?

The self-initiated community institutions involved in forest management are widely prevalent in Jharkhand villages. The institutional structure, length of existence, functions performed, legal category of land managed, and relationship with the forest department varies depending on the region. In every village we visited that was close to a forest, there was some form of community establishment instituting and enforcing rules of use for the community. Given that 99.5 per cent of forests are classified as RF or PF, such community forest management borders on the illegal unless explicitly recognised by the state. State recognition has had mixed consequences as many such efforts have been co-opted into social forestry in 1980s and joint forest management (JFM) in the 1990s. The JFM was started in an undivided Bihar in 1990 and reintroduced in Jharkhand in 2001.9 Over 2,000 (2,034) village forest management and conservation committees and eco-development committees have been organised managing an area of 5,589 sq km. In Singhbhum and Ranchi, most JFM committees identified as successful by forest officers and field staff were in villages that had forest committees before any state initiative. For instance, in village Talaburu, men have been meeting regularly since 1984 to discuss and decide on forest issues although a committee was formed only in 1988. The forest committee was concerned with outsiders illegally harvesting village sal forests spread over 50 hectares. They tackled this by forming nine groups representing nine hamlets and each group took responsibility by rotation for guarding the forest at night. Felling by outsiders was halted and local use was also regulated. This effort received media recognition and publicity for its efforts during the social forestry phase and again in the recent JFM phase. The forest committee is now registered under JFM. However, given the sporadic nature of state interest in this committee, villagers interviewed were suspicious and cynical of JFM registration. In other villages such as Kuira (Jhinkpani block), the munda in consultation with villagers has managed the forest near the village at least since 1965, regulating its use and protecting it from an excessive felling. Many customary and new village

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councils (gram sabhas) considered protection and management of nearby forests as one of their fundamental tasks. In village Bhandra (Khunti block), villagers say they have been meeting every Thursday as a group for as long as they remember to discuss village issues including forest protection. Each household protects the forest one night a month, and offenders caught felling illegally are fined by the village forest committee in Thursday meetings. In village Bhut, also in Khunti, a forest protection committee was set up in the 1980s by retired military men who convinced others of the importance of forest protection. All households are members of the committee, and a fine of 10 rupees is levied for unsanctioned absence from Thursday meetings. The committee prevents random felling, although it allows collection of small timber and fuel for use. It also approves sale of large timber when people apply for this. The money collected is pooled as a common fund for emergencies. In other districts such as Hazaribagh and Godda also, various community-driven conservation initiatives were found. Community forest management is thriving in Jharkhand in spaces outside the law. Forest law and policy fail to provide a sense of ownership to the resource that is essential for a stake in its sustainability. In principle, IFA has a provision (Chapter II, Section 28) where RF can be declared village forests, although this remains the least used section of the act. However, final authority even over these village forests rests with the forest department. Active village forests are therefore created only in the space of illegality. Bagodhar (Giridih district) has an active gram sabha in a village with more that half its land under forests. It managed, with the support of its legislative representative Mahender Singh, to design and establish its own forest management rules independent of state forest laws. During our visit, several villagers were actively and voluntarily involved in planting indigenous trees in blanks on PF and RF land. Water conservation works and decade-old trees were well protected and maintained. Each family had responsibility for maintaining individual trees and collective responsibility for protection against grazing. Apart from plantation, the gram sabha also sanctioned periodical harvest of trees. For instance, five trees were given to each family two years ago from RF areas and each family could decide whether to use or sell the trees. Legally, villagers can neither plant nor harvest trees in these forests without explicit legal sanction. These activities, however, are not covert and have been much publicised in Hindi and English newspapers and television channels. The forest guard was also present in the RF being planted by villagers, and a forest committee has now been formed and registered under JFM. People are voluntarily involved in all aspects of forest management including plantation, protection and decision-making on harvesting and benefit sharing. However, such participation can currently be achieved only outside forest law, and in areas where the community is aware and organised.

regime, requiring informed actions by both state and citizens, is lacking. Whether it is information about the implications of Supreme Court orders, JFM resolution, policies and prices for non-timber forest products, forest boundaries or user rights, local-level negotiations between villagers and state agencies are based on legal ambiguity. Adivasis, in particular, become acquainted with law only in its appropriating form and rarely in its protective function. Ambiguity is both the mark of the failure of the state and one of its great successes. Its failure lies in the obvious inability to establish a functioning rule of law. But its success, from the states perspective, is in appropriating and controlling productive forest resources illegally in the name of law. -29 Email: vasan_sudha@hotmail.com

Notes
1 This essay is dedicated to Mahender Singh (former CPI-ML MLA from Bagodar), who was brutally murdered on January 16, 2005, for his vision, leadership, and the hope he generated in the people of Bagodar and in us. 2 Patna High Court Judgment, Mansid Oraon vs the King, AIR,1951, Pat 380:PLT 128 (cited in Areeparampil1988). (Also see Majumdar 1950: 12). 3 Bihar Gazette Extraordinary Notification (P-61), Patna, July 9, 1956 cancelled 300 earlier notifications of MK as PF. 4 Sarin (2003) notes that this was one of six circulars issued in 1990, but the only one given prominence by the MoEF. Some of the others relate to the settlement of disputed lands and leases and forest villages. 5 IA No 703 in WP No 202/95, November 23, 2001. 6 Korkar refers to wasteland settled and converted to cultivable land (see also Upadhya this issue). 7 Mathew Arreparampil and Others vs State of Bihar and Others, Writ Petition (Crl) Nos 371-75 of 1983 filed in the Supreme Court of India on April 7, 1983. 8 Such information was readily provided in Hazaribagh as compared to other divisions visited where even published public information was reluctantly provided. 9 See Vasan (2004) for a detailed critique of the JFM in Jharkhand.

References
Areeparampil, M (1998): Forests and Tribals: Victims of Exploitation, Tribal Research and Training Centre, Chaibasa. Haines, H H (1904): Working Plan for the Reserved Forests of Singhbhum of Bengal Forest Circle, Bengal Secretariat Press, Calcutta. (1910): A Forest Flora of Chotanagpur including Gangpur and the SantalParganas, Bengal Secretariat Press, Calcutta. Macpherson, T S (1908): Final Report of the Operations for the Preparation of a Record of Rights in Pargana Porahat District Singhbhum 1905-1907, The Bengal Secretariat Book Depot, Calcutta. Majumdar, D N (1950): The Affairs of a Tribe, Universal Publishers, Lucknow. Phillips, P J (1924): Revised Working Plan for the Reserved Forests of Saranda and Kolhan Division in Singhbhum District, Bihar and Orissa Circle, Government Printing Press, Patna. Prasad, C B (1970): Final Report on Survey and Settlement Operations in the District of Singhbhum (1958-65), Secretariat Press, Press. Roy Burman, B K (1986): Historical Ecology of Land Survey and Settlement in Tribal Areas and Challenges of Development, Council for Social Development (Study for Ford Foundation), New Delhi. Sarin, M (2003): The Shaky Foundations of Indias Forest Conservation, Down to Earth, September 2003. Schlich, W (1885): Report of the Forest Administration in the Chota Nagpur Division, Bengal, Calcutta. Vasan, S (2004): Forest Rights in Jharkhand: Laws, Policies and Practices, report prepared for UNDP/PRADAN, New Delhi.

In the Name of Law

It is perhaps ironic that in a research project with a focus on forest law and customary law, I am compelled to highlight illegality. But practice in Jharkhand lies predominantly in this gray area between legality and illegality. A functioning legal

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