Conservation laws and establishment- study of protected areas

Introduction

‘Nature never did betray

The heart that loved her’

- Wordsworth

Nature loves people when people love her. In ravenousness to get

everything from nature, we have exploited her beyond boundaries. When

man realized the impact of reckless use of nature’s bounty, they

started conserving it. This conservation went to the extent of

undermining the life of people who had lived with the nature (forest

dwellers, indigenous people). In this paper, the author would deal

with the forms of oppression on the dependents of wildlife habitats

which is caused by the wildlife protection laws. The early

conservation perspective of the “dominant group” (policy makers,

scientists, etc) rendered the conservation efforts of the people (who

worshipped wildlife as God or considered wildlife as only means of

subsistence) invisible, excluded them from the conservation scenario.

This form of cultural imperialism has resulted in marginalization of

people living in and around the PAs, and has in many cases made them

powerless1. By amending the Act in 1991, 2002, 2006, and enacting

Forest Rights Act, 2006 government claims to undo the historical

injustice. This paper by examining the claims made by the government

would try to establish that the efforts by the government are only

1 Author uses the terms- marginalization, powerlessness, exploitation not in

the context of social division of labour as Iris Young uses, but in a broader

way adhering to the meaning of the terms. –Iris Young, Justice and the Politics of

Difference, Princeton, 1990.

symbolic. If government is taking concrete steps it would have to

comply with the community conservation practices.

Part I of the paper would deal with procedures for establishing

protected areas under Wildlife Protection Act, and its implementation.

Part II would discuss the understanding of “inviolate” spaces for

conservation of wildlife, nationally and Part III aims at in

suggesting the some viable efforts for minimizing impoverishment of

conservation induced displacement

Wildlife Protection Act, 1972 (hereinafter WPA) in S. 2(24 A) defines

Protected Areas as “a National Park, a sanctuary, a conservation reserve or a

community reserve notified under sections 18, 35, 36A and 36C of the Act. There was no

definition of Protected Areas till 2002, but the Act dealt with

notification and declaration of National Parks, Sanctuaries, Game

reserves and Closed Areas. It was the 2002 amendment to WPA that

categorized National Parks2, Sanctuaries3, Conservation Reserves and

Community Reserves as Protected Areas. National Parks are those areas

which are of adequate ecological, faunal, floral, geo-morphological,

natural or zoological declared by the Government for the protection,

propagation and development of wildlife and its environment.4 Once an

area is declared as National Park under section 35(4), the land

belongs to the government and no person shall have any right over the

2 Section 2 (21) of WPA, 1972. National Park can be established under three

provisions of WPA , Declared under sec.35, sec. 38 and deemed to be declared

under sec. 66(3). 3 Section 2 (26) of WPA “ "sanctuary" means an area declared as a sanctuary by notification

under the provisions of Chapter IV of this Act and shall also include a deemed sanctuary under

sub-section (4) of section 66.”4 Section 35 (1) of WPA

land. Sanctuaries are also established for the same purpose. But in

case of sanctuaries, the Collector may allow, in consultation with the

Chief Wildlife Warden, the continuance of any right of any person in

or over any land within the limits of the sanctuary5. Provisions for

declaration of conservative and community reserves were inserted by

the 2002 amendment. A government land is declared as conservation

reserves after consultation with local communities for protection the

landscapes, seascapes, flora and fauna and their habitat6. Whereas for

the protection of fauna, flora and traditional or cultural

conservation values and practices, the government can declare a land

private or community land when the individual or the community has

volunteered to conserve wildlife and habitat7. Thus, these four

categories are now regarded as Protected Areas (hereinafter as PAs) in

India. Whenever the government intends to notify an area as National

Park or Sanctuary, the rights of any person in or over the land are

inquired into and determined by the Collector appointed under the Act8.

Such rights of individual are extinguished by acquisition of

5 Section 24(2)(c) of the WLP. “ allow, in consultation with the Chief Wildlife Warden, the

continuance of any right of any person in, or over any land within the limits of the sanctuary”6 Section 36A of WPA . “(1) The State Government may, after having consultations with the local

communities, declare any area owned by the Government, particularly the areas adjacent to National

Parks and sanctuaries and those areas which link one protected area with another, as a conservation

reserve for protecting landscapes, seascapes, flora and fauna and their habitat.”7 Section 36C of WPA . (1) The State Government may, where the community or an individual has

volunteered to conserve wild life and its habitat, declare any private or community land not comprised

within a National Park, sanctuary or a conservation reserve, as a community reserve, for protecting

fauna, flora and traditional or cultural conservation values and practices”.8 Section 19 of WPA . If areas intend to declare as sanctuaries are reserved

forest, direct notification without settling the rights can be made according

to section 26A (1) (b)

government. Thus, the protection of wildlife habitat envisages

displacement of people at least strictly in National Parks. It has

been reported that there are at least three to four million people

living inside the PAs and several millions adjacent or nearby areas,

who depend on the natural resources of PAs for their livelihood9.

Pursuant to wildlife conservation strategy, there have been mass

displacement and eviction drives in most of parts of India.

Conservation: a tool for causing impoverishment.

1.1 Determination of rights in PAs, abolition of rights by acquisition and provision for

compensation under WPA.

1.1(a) Settlement of rights

Settlement of rights is to be carried out before publishing the final

notification in the gazette declaring an area as sanctuary/ national

park10. Once the notification regarding intention (intention

notification is the first phase11) of the government to declare an area

as sanctuary or national park is issued under section 18 or section 35

respectively, then sections 19 to 24 are to be strictly followed12.

Only exception is when the area to be declared as sanctuary is within9 Kothari and Lasgorceix, “ Displacement and Relocation of Protected Areas : A

synthesis and Analysis of CaseStudies”, Vol XLIV No. 49, EPW, should have cited the

year and page number 10 Section 26A and 35 (4) (a) . Only after disposing of the claims under

section 19, and vesting of all rights over the land on the government, can the

state government publish a notification declaring the said area to be national

park/sanctuary. Section 26A introduced after 1991 amendment which mandates

settlement of rights to be carried out after the intention notification. 11 ELDF and WWF India 2009, Conserving Protected Areas and Wildlife : A

Judicial Journey. New Delhi .p. 266

a reserved forest or territorial waters, settlement of rights is not

required13. In rest of the cases, Collector14 is required to settle the

rights according to the following procedure:-

1. Collector should inquire into and determine the

(a) “Existence” of right,

(b) “Nature and extent”;

of such right of any person in or over the land comprised within

the limits of the sanctuary15.

2. For determining the rights of the people the Collector shall

publish a proclamation in regional language in every town and

village and neighbourhood areas,

(a) Specifying the limits of the sanctuary (national park), and

(b) Requiring a “written claim in prescribed form” as to the rights and

compensation expected16.

12 Jaladhar Chakma v. Deputy Commisioner, Aizwal, Mizoram, AIR1983 Gau 18. It

said that unless the provisions in the Act especially sections 19 to 21 are

complied with, Orders as to eviction of the villages from the sanctuary would

be quashed due to lack of jurisdiction. 13 Section 26A (1) (b) of WPA 14 2002 Amendment Act to WPA provides for the appointment of an officer as

collector. This provision is similar to the function of the settlement

officer under various Forest Acts. 15 Section 19 of WPA . Collector to determine rights.- 3[When a notification has been issued under

section 18] the controller shall inquire into, and determine, the existence, nature and extent of the rights

of any person in or over the land comprised within the limits of the sanctuary.16 Section 21 of the WPA :When a notification has been issued under section 18, the collector

shall publish in the regional language in every town and village in or in the neighbourhood of the area

comprised therein, a proclamation-(a) specifying, as nearly as possible, the situation and the limits of the

sanctuary; and

3. Collector should conduct enquiry not only for the claims that are

brought before him under section 21(2) but also to existence of

rights of any person under section 19, so far it can be

ascertained from the government records17.

(b) requiring any person, claiming any right mentioned in section 19, to prepare before the Collector,

within two months from the date of such proclamation, a written claim in the prescribed form, specifying

the nature and extent of such right with necessary details and the amount and particulars of

compensation, if any, claimed the respect thereof.

17Section 22. Inquiry by collector.- The Collector shall, after service of the prescribed

notice upon the claimant, expeditiously inquire into-(a) the claim preferred before him under clause (b) of

section 21, and

(b) the existence of any right mentioned in section 19 and not claimed under clause (b) of section 21, so

far as the same may be ascertainable from the records of the State Government and the evidence of any

person acquainted with the same.

18Section 24of WPA . Acquisition of rights.- (1) In the case of a claim to a right in or over any land

referred to in section 19, the Collector shall pass an order admitting and rejecting the same in whole or in

part, Section 24of WPA . Acquisition of rights.- (1) In the case of a claim to a right in or over any land

referred to in section 19, the Collector shall pass an order admitting and rejecting the same in whole or in

part,

17

4. Collector can pass an order under section 21(1) admitting or

rejecting any claim referred to section 1918 without giving any

reasons19.

5. If the Collector admits the claim, he can

(a) Exclude such land from the limits of the sanctuary/ national

park

(b) Acquire the land or rights in accordance with section 25 of

the WPA20 (

(c) Allow continuance of the any right of any person within the

limits of the sanctuary21.

6. If the land is being acquired, then compensation to the land can

be in land or money or partly in land and partly money with the

consent of the claimant or the Court22.

1819Section 24of WPA . Acquisition of rights.- (1) In the case of a claim to a right in or over any land

referred to in section 19, the Collector shall pass an order admitting and rejecting the same in whole or in

part,

19 Without giving any reasons gives space for arbitrariness20 Such an acquisition is deemed to be an acquisition for public purpose

according to section 25(b)

21 Section 25 (2) If such claim is admitted in whole or in part, the Collector may either- (a)

exclude such land from the limits of the proposed sanctuary, or (b) proceed to acquire such land

or rights, except where by an agreement between the owner of such land or holder of rights and

the Government, the owner or holder of such rights has agreed to surrender his rights to the

Government, in or over such land, and on payment of such compensation, as is provided in the

Land Acquisition Act, 1894. 1[(c) allow, in consultation with the Chief Wild Life Warden, the

continuation of any right of any person in or over any land within the limits of the sanctuary.]

22 Section 25(1) (e) of WPA

Once the rights are settled, final notification can be issued under

section 26A (1) (a).

Section 21(2) assumes that people would be in a position to be claim

their rights. When the real scenario is that most tribals are

illiterate and unaccustomed with the prominent culture including the

legal system. In Animal and Environment Legal Defence Fund v. Union of India23, the

contention of the second respondent was that initially “no one claimed their

rights on account of illiteracy and unawareness”24. This section also requires the

claimant to write the claim in prescribed form which is sardonical.

In addition to these, by virtue of section 25(1) (c), section 9 of the

Land Acquisition Act is deemed to be complied with. Section 9 (2)

states, ‘it is essential to grant all interested persons hearing while

settling the rights’. No such provision is provided in the WPA. Thus,

WPA provides little justice to those people who are affected by the

declaration of PAs.

The Collector has the obligation to inquire into the existence of

rights if, it is provided in the government records25. But as argued by

Kothari and Lasgorceix, in most cases the local communities have

unregistered rights to the natural resources and lands26. This has

also been acknowledged by the government in its explanatory note to

2010 WPA Amendment Bill27. The Bill has inserted records of “Gram23 AIR 1997 SC 1071. 24 AIR 1997 SC 1071 para 8 25 Section 22(b) 26 supra at 10. p. 37 27 “The records of the State Government often do not reflect the rights of people who live in remote areas such as forests. The Amendment Act seeks to broaden the sources that the Collector may examine to ascertain the existence of rights. MoEF, GoI, Explanatory note to Draft Wildlife Protection Amendment Bill, 2010, http://moef.nic.in/downloads/public-information/explanatory-note-wpa.pdf

Sabha” in section 22(b)28. But the Bill does not acknowledge the

“traditional rights” of the people. If the amendment had provided for

inclusion of rights those people who have been depending on PAs for

their basic needs for bona fide livelihood needs, this drawback could

have been resolved. Cases in which the collector has exercised the

discretion in favour of the local communities while acknowledging

their traditional right to fishing, the Court has held that it would

be regarded as settlement of rights29. But the Supreme court in ALDF

case upheld its decision in Pradeep Krishen v. UoI30. It said ‘if one of

the reasons for this shrinkage (forest) is the entry of villagers and tribals living in and around

the sanctuaries and national parks there can be no doubt that urgent steps must be taken to

prevent any destruction or damage to the environment, the flora and fauna and wildlife in

those areas’. In Pradeep Krishen case, the petitioner was challenging

the notification permitting collection of tendu leaves from national

parks and sanctuaries. In the counter affidavit filed by the

petitioner, he clarified that he was not challenging the traditional

right of the people to collect minor forest produce for their bona fide

use, but he was only challenging the commercial exploitation by

contractors in collection of Tendu leaves31. Court’s decision as to

prevention of entry of the villagers and tribals has to be read only

in the context of commercial exploitation of the forest resources, not

as to the traditional right of the villagers for their bona fide use32. 28 id. 29 Animal and Enviromental Legal Defence Fund v. UoI AIR 1997 SC 1071 para 10.30 (1996) 8 SCC 599. 31 id, para 7.32 This trend of State government using justification of granting traditionalright for commercial exploitation has been widely criticized. For example, in collection of tendu leaves, the villagers are being used as labourers. withoutany substantial control over the resources. It is more like State government is employing them to do those works. Also, “the real distinction that needs tobe made is between those who are in the forests for survival and livelihood reasons and those who are there for commercial purposes and for making

Further, an unfettered and unguided power has been granted to the

Collector under section 24 of the WPA. The power of the Collector

under this section is a quasi- judicial function since, it determines

the rights of the persons living in and round the PAs. Section 24 of

the Act is unreasonable due to the following reasons:-

The Collector is not required to record any reasons for the

decision taken by him. Whether the collector would look into the

compatibility of the nature of right with conservation objective,

or he would see the financial capacity of the State to acquire

those rights by giving compensation (monetary or land), or any

other reasons (utilization of the resources for development) are

quite unclear.

It has been left to the caprice and whims of the authority to

decide in one way or the other. The preamble of the Act which

states “An Act to provide protection of wild animals, birds and plants, and for

matters connected therewith or ancillary or incidental thereto”, provides no broad

guidelines.

No time limit is specified as to passing of the order under

Section 24.

The concept of Audi altrem partem is vitiated. No opportunity for

hearing is provided to the claimants.

Contravention of the provisions of the Act results in penal

consequences under Section 51 of the Acts including arrest

profit.” Beta Bhatia in “ Competing concern”, EPW, Vol XL No. 47 2005 p. 4890.

without warrant which can be used as detriment against these

poor, illiterate tribals or other forest dwellers.

There is no provision of review, revision or appeal against the

order.

In Chandmari Tea Co v. State of Assam33, a case before Gauhati

High Court, the petitioners challenged the notifications for

extension of Kaziranga National Park and declaration of

Burachapori sanctuary. The notifications were challenged on

various grounds like:

(1) Violation of due process of law since there was

- No opportunity of hearing

- No order was passed under sec. 24

(2) No settlement of rights under the various provisions of WPA.

The Court while rejecting the contentions, observed that the

section 19 of WPA was amended stating that no settlement of

rights is to be carried out by the collector if it has been

already done while the areas was declared as a reserved forest34.

The Court held that “as large scale influx of encroachers in such

a forest land is a common phenomena, putting the forest authority

in innumerable and unsolvable problems at the cost of the

protection of precious endangered wild life”35 and such

notifications were for the larger public interest.

Whether the settlement of rights was carried out under WPA?

In WWF- India v. Union of India36, the Court held that even though

notifications were issued under section 18/35, no proclamation under33 AIR 2000 Gau 1334 para 23. 35 para 27. 36 (1998) 6 SCC 483

section 21 or other steps were taken in most of the states (state

governments are the implementing authorities)37. A variety of reasons

were stated in the affidavits filed by the governments which indicated

the approach of the governments towards settlement of rights is

dreary. Even after declaring the intention to constitute PAs, the

state governments argue that the settlement process could not be

completed due to constraints of funds38. Hence, only in 40 percent of

the PAs final notification has been issued39. In a 2006 case, the

petitioner contended that settlement of rights has not been completed

in 14 out of the 85 National Parks and 170 out of the 494 sanctuaries

as per the State government affidavits40. In some of these cases the

people living in and around the PAs would have been evicted

forcefully41. In few others, they would be employed by the Forest

Department as labourers for forestry operations42. In other cases they

would be given permits/licenses for accessing the forest resources43.

The government has adopted primarily three strategies for rights

settlement:

37 ELDF and WWF India 2009, Conserving Protected Areas and Wildlife : A

Judicial Journey. New Delhi p. 219 38 id. p. 8 39 id. p.840 id, p. 841 Pariyar NP, Rajaji Np etc. 42 Banerjee and Ghosh, Creation of West Bengal’s Forest underclass” , IPPG

discussion Paper Series, 2010. available

www.dfid.gov.uk/r4d/PDF/Outputs/ProPoor_RPC/dp51.pdf last retrived on 20- 04-201143 P Devallu et al, “ Indigenous and Tribal Communities, biodiversity

conservation and the Global Environmental facility in India”,

www.forestpeoples.org/sites/fpp/files/.../08/gefecodev india may05eng.pdf

They would settle the rights without inquiring into the

existence of rights, and without adequate compensation.

They would pass preliminary declaration of constitution of PAs

and postpone the final declaration as complete settlement of

rights has not been carried out.

They claimed that settlement of rights are not required as some

PAs are located within the Reserved Forest, or are those deemed

to be PAs in which settlement has already been carried out by

a repealed legislation (section 66(3) of WPA).

Settlement of rights under WPA

Declared as a national Park in 1975, relocation from Gir National

Park started in 1972. Maldhari’s, the pastoral community of the Gir

forest was resettled in arid regions and was forced to take up

agriculture as their occupation. Different sources provide different

data as to the number of families displaced. Some say it was 580,

others 84544. The rehabilitation process failed since no proper

rehabilitation of the communities took place. Many of the Maldharis

communities ran into debts losing their land, and afterwards returned

to the sanctuary45. Hence the communities inside the Gir Sanctuary are

resisting any further relocation46. In case of Sariska, the process of

determination of rights has been completed on 22.10.1999. A total of

two lakh eighty thousand claimants were provided for. Eleven

settlements with eight hundred and fifty families were declared as

having no rights under the WPA. There are still 24 villages in the

44 Kothari and Lasgorceix, “ Displacement and Relocation of Protected Areas : A synthesis and Analysis of CaseStudies”, Economic and Political weekly, XLIV(49), EPW p. 39 45 supra at 4446 id.

core of the park and 246 in the buffer zone. In Bhadra Sanctuary,

relocation has caused widespread conflicts in form of protests, fire,

demonstrations, and petitions47. Nagarhole National Park also witnessed

forced displacement till 1990s. In Kudremukh and Rajiv Gandhi national

parks, the involvement of NGOs, human rights activists have

contributed to the recent resettlement of the families in a

transparent and informed manner. In case of Pench National Park, the

government postponed the final notification from time to time48. At

times the actual number on official records is kept disguised so the

real data of displacement is also hard to capture.

PAs within Reserved Forests

According to section 26 A(1) (b) 49 if any area within a reserved

forest is to be included in a sanctuary, the State Government can by a

notification can declare the said areas as sanctuary. State of Kerala

with eighteen Protected Areas has claimed that no settlement of rights

under WPA is necessary for 13 of its PAs as they fall within the

Reserved Forests50. Only to those newly declared PAs51 section 19 to 24

would be applicable as per the State government. Periyar Wildlife

sanctuary and National Park was ratified by the State under section

66(4). By virtue of the section, Periyar sanctuary was deemed to be a

sanctuary under section 26A. It is interesting to note that since

National Park is declared inside the sanctuary, no further settlement

47 supra at 45 p. 40 48 Animal and Enviromental Legal Defence Fund v. UoI AIR 1997 SC 107149 This section was included by 1991 amendment. 50 id, p 90 . national parks and sanctuaries were deemed to be as National Park and sanctuary under the WPA in accordance with the Section 66 (4) and 66(5). 51 There are five newly declared PAs : Mathikettan National Park, Pampadum Shola National Park, Anaimudi Shola National Park, Mangalavanom Bird Sanctuary, Kurinjimala Sanctuary.

of rights is required. In the State of West Bengal, similar situation

persists. Out of the fifteen sanctuaries, thirteen are those areas

notified under Indian Forest Act, 192752. The state has five national

parks out of which three are within the reserved forest land53. Buxa

was declared as sanctuary and national park out of the Reserve

Forest54. Relocation has taken place to nearby tea gardens55. Though

more relocation was planned but, in reality, has not been finalized.

Buxa authorities are accused of not utilizing the relocation of fund.

Impoverishment caused due to displacement and illegalization of

livelihood.

Conservation methodology under WPA is a top down approach empowering

the forest department to conserve the wildlife inside enclosed spaces

through the policy of fences and fines56. It totally ignores the

traditional methods of conservation and the dependence and rights of

local communities on the PA resources57. The resultant displacement of

the people and illegalization of the use of PA resources violate the

subsistence rights of the people, and throw them to impoverishment.

Impoverishment caused due to displacement.

For establishing PAs, State has the right to displace people in

“public interest” even if it results in depriving the subsistence of

those who are depending on such Pas. At the same time, the State does

not grant any corresponding legal right to the displaced persons to52 Supra at 35 p. 18253 id, p. 18454 supra at 10, p. 4255 id.56 Ananya Mukherjee, “ Conflict and coexistence in National Park”, EPW, Vol XLIV No 23, June 6, 2009 p. 52 57 Pankhaj Sekhsaira and Ashish Kothari, “For a natural Balance” Vol 17, Issue 11, May 27- June 09, 2000.

claim resettlement and rehabilitation. The compensation in form of

land envisaged in Section 25(e) of the Act does not entitle the

claimant to claim a right to alternate land. The discretionary power

of the Collector to provide for alternate pasture under section 25(f)

is to be exercised only if it is practicable or convenient. Thus, WPA

fails to eliminate the deprivation caused by displacement by

establishing PAs. Even, if the state is uses the theory of eminent

domain58 to justify its acts then, it should satisfy the two

quintessential criteria:

-Public interest, and

-Compensation (adequate)

State thus violate in toto, its duty to avoid deprivation of the people

for whom PAs are the only means of livelihood (Henry Shue’s

subsistence duties) 59.

The key assumptions behind displacement from PAs is that local

population is chief threat to the biodiversity within the PAs(human

pressure) and that humans and animals cannot co exist without

conflicts (man-wildlife conflicts)60. Though no accurate information as

to the total number of people displaced is available, it is estimated

58 Eminent domain theory is used in constitution law which states that state has superior powers over all the property which is in state’s boundary59 Applying Henry Shue’s three basic duties. Henry Shue, “ Basic Rights “:

Subsistence, Affluence and US Foreign Policy .( 2ne ed., Princeton University

Press, 1996), 35-94. 60 Kothari and Lasgorceix, “ Displacement and Relocation of Protected Areas : A synthesis and

Analysis of CaseStudies”, Economic and Political Weekly XLIV (49) December 5,

2009. p. 39

that it comes to 1,00,00061. Other studies put that to 6,00,000 but the

basis of study is not clear62. Any such displacement can result in the

following risks63:-

1. Landlessness (expropriation of land assets and loss of access

to land)

2. Joblessness (even when the resettlement creates some temporary

jobs)

3. Homelessness (loss physical houses, family homes and cultural

space)

4. Marginalisation (social, psychological and economic downward

mobility)

5. Food insecurity (malnourishment, etc.)

6. Increased morbidity and mortality.

7. Loss of access to common property (forests, water, wasteland,

cultural sites)

8. Social disarticulation  (disempowerment, disruption to social

institutions)

To address these risks, a proper rehabilitation is a mandatory

requirement. Rehabilitation process in PAs had been carried out

through various policies and other schemes64. In some cases though

61 id, p. 39 62 id. 63 MM Cernea and Schmidlt Soltau, “ National Parks and Poverty Risks: Is Population

Resettlement the solution?

http://www.earthlore.ca/clients/WPC/English/grfx/sessions/PDFs/session_3/

Cernea.pdf, last retrieved on 22-04-201164 Smithu Kothari, “ Whose Nation? The displaced as Victims of Development”,

Economic and Political Weekly , 31(24) June15 1996 p. 1476

alternate land was provided, it was not suitable for any practical

use. For example, no training in crop cultivation/ other agricultural

practices was given when forest department found agriculture as an

alternate livelihood for the pastoralists of Gir NP/sanctuary65.

Another village in Gir NP, Dhadia, was resettled without any

resettlement plan. They lost their source of water and grass for the

cattle and now both have become expensive66. In case of relocation of

Alikatta village from Pench National Park, the promises of “good

land”, irrigation, wells etc were not fulfilled67. Once settled near

banks of Pench river, they grew rice, maize and wheat. After

relocation they were given poor quality of land, with some bricks to

build houses and suffered severely from water shortage68. Again, the

restriction in entry into the National Park has resulted in alienation

of the traditional knowledge from village “bhumka”( medicine man) to

his descendents since they could not access the medicinal plants

inside the park69. In some other cases, large sections of the people

were excluded from the rehabilitation scheme since they did not fall

into the category of beneficiaries.

In the late 1990s, Government of India (GoI) adopted the Eco-

development Project funded by Global Environmental Facility (GEF) and

World Bank for conservation of biodiversity and wildlife .One of the

major premises of the Project was that poverty is the main reason why

65 P Devallu et al, “ Indigenous and Tribal Communities, biodiversity

conservation and the Global Environmental facility in India”,

www.forestpeoples.org/sites/fpp/files/.../08/gefecodev india may05eng.pdf 66 id.p . 32 67 id. p. 3268 id p.32 69 id. p. 31. this happened in almost all the cases. villages now had to depend on a doctor (expensive and far off)

people exploit the forest and natural resources for survival70, and it,

thus, aimed at finding alternatives to reduce the pressure on the

ecosystem.

It was carried out in seven national parks71 of India, in all except

Periyar Sanctuary the Project precipitated the conditions of poverty.72

The main reason for that was the failure to formulate and implement

the project on the basis of the needs of the community73. After the

project, the restriction on the use of the PAs’ resources became

stringent. The forest officials instead of fining the people who

entered the forest started arresting them74. People who found difficult

to sustain themselves, sold off the

LPG stoves since they could not pay too high amount refill their

cylinders75. In Gir forest, the developmental activities benefitted the

economically and socially well off people like Patels, Yadavs , Sagars

whereas it was detrimental to the Maldhari tribals76. Social, cultural

and economic inequalities were not kept in mind in formulating the

project. Thus, most of the displacement from PAs resulted in

impoverishment.

Impoverishment caused by illegalizing dependency on the PA resources.

It was noted that there are more than 3 million people who depend on

the forest directly and indirectly. (If development projects inside

70 id. p. 14 71 BuXa, Gir, Nagarhole, Palamaau, Pench, Periyar , Ramthampore, Similipal. 72 Executive Summary of the Samatha, id. Citation not complete. You have usedid but Samatha is not mentioned in the previous footnote 73 id. 74 id, p. 75 id. p . 4276 id.

the PAs are to be included, then the number of beneficiaries will spur

up). Illegalizing the means of subsistence is one of the greatest

threats that the conservation laws have been causing to the people

living in and around the PAs. It was earlier noted that the

government could not adequately rehabilitate these communities due to

lack of funds and resources. People have come back from the resettled

sites to the PAs like in Gir and Pench to escape the starvation. These

people live within or in the periphery of the PAs and still depend on

them for survival. Maldhari’s communities who stayed back in Gir

forest continued with cattle rearing. The forest official would ask

for bribes to collect fodder, and also, when traders collect milk and

other products, they would again demand share out of the profit77. In

Pench National Park, the local communities developed a mutual sharing

between the junior forest officers and the communities78 and collected

fodder and other forest produce paying money that is less than the

fine79. Thus, in many cases the grazing permits and fines have

encouraged rent seeking behavior of the forest official. In some other

instances, permits/ licenses are given to those who are able to bribe

the forest officials, and thus poor locals who are unable to bribe the

officials are excluded80.

Forest Rights Act and Critical Wildlife Habitats (CWHs).

77 id. 78 p. 57. 79 Anannya Mukherjee, “ Conflict and coexistence in National Park”, Economic

and Political Weekly, XLIV (23), June 6, 200980 id. p. 56

Forest Rights Act acknowledged the unregistered traditional rights81 of

the people living in and people depending on the forest82, and vested

those rights on the forest dwellers on fulfilling section 6. But FRA

made an exception by permitting modification or resettlement of rights

under section 4(2) for creation of

inviolate spaces. The term “inviolate” can include areas with no human

presence to areas with small scale human activities that are

compatible with conservation83. If the traditional rights of the people

are sustainable with the conservation agenda, it has to be allowed in

critical wildlife habitats (CWH). Thus, according to Kothari and Bose,

CWH can lead to site-specific and species based approaches, than a

uniform regime of conservation84.

Inviolate spaces

Once enclosed areas, National Parks and Sanctuaries started

permitting human dependence to certain level by later amendments.

Section 24(2)(c) inserted by 1991 amendment allowed continuance of any

right in sanctuary, and proviso to section 35(6) inserted by 2002

amendment permits removal of forest produce from national parks for

bona fide needs of persons living in and around National Parks. But the

2006 amendment to WPA introduced establishment of Tiger Reserves by

virtue of section 38V of WPA. Under section 38V, a tiger reserve

81 rights include all rights like grazing, cultivation etc82 preamble83 Arshya Bose and Ashish Kothari, “ Sensitive Zones”, Vol 24, Issue 04,

Frontline, 2008.

http://www.hindu.com/fline/fl2504/stories/20080229500902000.htm last retrieved

on 21-04-2011. 84 id

includes core or critical habitat areas of National Park and

sanctuaries which are required to be kept as inviolate spaces without

affecting the rights of the Scheduled Tribes and other forest

dwellers, and a buffer or peripheral area which aims at, inter alia,

co- existence between wildlife and human activity. This co- existence

is promoted with due recognition of the livelihood, development,

social and cultural rights of the local people85. Forest Rights Act,

2006 (FRA) came up with an umbrella concept of “critical wildlife

habitats” (CWHs) which according to section 2(b) means those areas of

National Parks and Sanctuaries that are required to be kept as

inviolate for the purpose of wildlife conservation. These areas are to

be specifically and clearly established, case to case, on the basis of scientific

and objective criteria86. The rights of the Scheduled Tribes and other

forest dwellers can be modified or resettled according to section 4(2)

of FRA if the following five conditions are complied with :-

Process of recognition and vesting of rights as per section 6 of

the Act is to be completed.

Concerned state agencies should establish that

(1) Activities or impact of the presence of right holders upon wild animals is

sufficient to cause irreversible damage, and

(2) threaten the existence of species and their habitats.

State government has to conclude that other reasonable options

like ‘co-existence’ is not possible.

Rehabilitation according to the existing laws and policies out to

be completed and informed to the forest dwellers.

85 section 38V (4) of 86 section 2

Only after completion of the rehabilitation facilities can the

right holders be relocated.

Thus, CWHs permits those activities that are compatible with the

conservation agenda, it does not envisage no human presence in all

cases.

Though section 2(b) defines critical wildlife habitats, it is

debatable if the section grants any power to the Central Government to

declare and notify critical wildlife habitats. Even if the section

itself provides for the process in which the declaration and

notification is to be made, it has to be kept in mind that the FRA is

not primarily a legislation for protection of wildlife, but for

recognizing and vesting forest rights on the forest dwellers whose

rights could not be recorded87. The power of the Central government

under section 4(2) is to modify or resettle rights in critical

wildlife habitats, not to declare critical wildlife habitats under the

Act. According to section 2(b), CWHs are to be determined by following

its two parts. Firstly, procedural requirements under section 4(1) and

(2) ought to be followed, secondly, an open process of consultation by

Experts Committee including experts from the locality and

representative of Ministry of tribals88. In a critical wildlife habitat

though rights under section 3 are recognized, the rights of the rights

holder can be subsequently modified or resettled if those activities

of the rights holder (1) cannot co-exist with the wildlife, and(2)

cause irreparable damage. Thus reading together section 38V(4) of WPA

and sections 2(b) and 4(2) of FRA, “critical tiger habitats” are one

form of “critical wildlife habitats”, in which the rights of the87 Preamble The Scheduled Tribes and Other traditional forest dwellers Act, 2006. 88 section 2(b) of FRA.

forest dwellers can be modified or resettled if the conditions under

section 4(2) are fulfilled. If CWHs are to be a genuine tool for

species conservation and protection of wildlife, it must be applicable

not only to those PAs which fall within forest area, but to all other

PAs. Thus CWHs are to be established under WPA, not FRA.

Guidelines for identification of CWHs

Ministry of Environment and Forest (MoEF) passed two sets of

guidelines for identification of CWHs in 2007 and 2010. Both were

later withdrawn. 2006 guidelines provided that CWHs would be

identified on the basis of the potential of the area to harbor viable

population of the umbrella species89. Expert Committee is to collect

data on man-animal conflict and assess the impact of human pressure on

wildlife to determine process of relocation90. But the guidelines were

later revised by the MoEF stating the delay that the state governments

face due to difficulties in implementation91. The revised set of

guidelines was against the FRA. CWHs can be arbitrarily identified in

and around national parks and sanctuaries within 60 days. Open

consultation process is after identification of the CWHs. Relocation

is to be carried out once the areas are identified, no study on impact

of activity or human presence is to be conducted. Relocation package

89 Kumar Sambhav Shrivastava, “ Misguided Rules”, Down to Earth, March 1-15,

2011 http://www.downtoearth.org.in/content/misguided-rules last retrieved on

21-04-201190 id . 91MoEF, F. No. 1-39/2007 WL-I Revised Guidelines for Identification of CWHs”,

http://moef.nic.in/downloads/public-information/rev-gdlns-CWH.pdf last

retrived on 21-04-2011.

was against section 4(2) (d) as it said that provision of 10 lakh

compensation is also permissible92. Thus, the second guideline was the

one that reiterated the arbitrary and exclusionary conservation policy

that has caused impoverishment and injustice. It was also the approach

that saw FRA as the Act that recognizes rights in forests outside of

PA network93. Due to wide spread opposition, the revised guidelines

were also withdrawn.

Declaration of CWHs

Forest officials of Buxa National park and wildlife sanctuary

declared whole of Buxa as CWHs94. Local communities protested against

this fearing mass displacement95. There was same condition that

prevailed in Orissa’s Satkosia’ sanctuary96.

Conclusion:

Though the WPA provides for settlement of rights, state governments

lack the political will to settle these rights. The subsequent

amendments that incorporated the principles of community conservation

are misused by the forest officials for their personal gains. This

mentality of the government which only has an obligation under various

legal instruments to conserve the wildlife is not the viable92 id. the author finds no mention of the 93 Mahesh Rangarajan, “ Fire in the Forest”, Economic and Political Weekly

XL ( 47), 2005 . 94 supra at 78 95 id. 96 id.

institution for protection of wildlife. The local communities whose

lives are so integrally connected with the wildlife and wildlife

habitats are the best agencies for protection of wildlife. But a

century of forced separation from the habitats has caused social,

cultural and economic changes in the life and life style of these

communities. Thus, propagation of the community conservation agenda

should incorporate the recognition of traditional rights of the people

and analyzing those rights in the backdrop of sustainable conservation

strategy. WPA is to explicitly recognize the traditional rights of the

local community, and principles of natural justice are to be followed

while settling the rights. Policy of evicting the people who are

dependent on the PAs for subsistence is to be abandoned, and

sustainable development of the people are to be recognized through

community conservation practices. Establishment of critical wildlife

habitats are to be recognized under WPA and it should be understood as

those encouraging the sustainable conservative role of the local

communities. The premise that all kinds of dependence of the local

communities should be dropped, but when presence of human is essential

for the ecological balance, it need to recognized. Thus,

impoverishment of the people who are depended on PAs can be

eliminated.

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