INTRODUCTION
“The Indian tradition teaches us that all forms of life, human, animals and plants are so closely linked that disturbance in one gives rise to imbalance in the others.”[1]
The Indian Forest Act of 1927 was ratified in pre-independence India to unify the legislation pertaining to forests, the tax levied on forest-produce such as timber as well as the transportation of forest-produce. It also attempted to integrate and conserve areas with substantial biodiversity and forestation. The Act and its various offshoots in the numerous states of the country, form the predominant framework for forest administration in India.
The Act authorises the government to acquire any private forest for just about any objective that is considered to be “needed for a public purpose” under Section 4 of the Land Acquisition Act, 1894. The act consists of 13 chapters and classifies forests into Reserved, Protected and Village forests in descending order based on restrictions on activities allowed in them. It also prescribes punishments for those who encroach or participate in any prohibited activities, inside these forests.
RESERVED FORESTS
Section 3 of the Indian Forest Act empowers the State government to declare any ‘forest land’ or ‘waste land’ whose ownership lies in the hands of the government as a ‘reserved forest’. It also requires that a certain procedure be adhered to in order to constitute such a forest[2]:
- The State government should publish a formal notice in its official gazette stating its intention to reserve a forest in a specific location[3].
- Further, a settlement officer must be appointed to look into any claims arising against the land[4].
- No new rights to the proposed land for reservation may be granted to the notified land from the date on which such a notification is issued[5], unless approved by the forest settlement officer.
- Once all claims are settled or the time prescribed for settling claims runs out, the notified land shall officially be deemed a reserved forest[6].
Once a forest is declared as a ‘reserved forest’, Section 26 of the Act, takes effect. It provides a comprehensive list of activities that are outlawed in such forests:
- “Clearing of forests, for cultivation or for any other purpose[7]
- setting fire or leaving any fire burning, or keeping or carrying any fire, in such a way so as to endanger forest
- trespassing or pasturing cattle
- causing damage by negligence in felling any tree or cutting or dragging any timber
- felling, girdling or burning any tree, stripping of barks or leaves of any tree
- quarrying stone, burning lime or charcoal, or removing any forest produce
- cleaning or breaking up of any land
- hunting, shooting, fishing, poisoning water or setting traps or snares
- killing or catching elephants”[8]
An individual found participating in any such activity would be liable to be punished with a fine up to five hundred rupees or imprisonment of upto six months respectively, or both. Furthermore, the convicting court may hold them liable to compensate the state for the damages caused to the forest.
In the case of State of Maharastra Vs. Rajendra Hilal Patil, 1989[9], The Bombay HC ruled those activities penalized under section 26(g) of the IFA, are severe offences which call for deterring penalties. To indict an individual for encroaching by trying to clear forest land, a criminal infraction under Section 26, it is necessary for notice to be issued under Section 4. As a result, such a notice is mandatory.
In State of Tripura Vs Surender Sangma, 1963[10], the Supreme Court ruled that the Tripura state authorities had issued a notification declaring the region as reserved under Section 4. Further, when this notification is given under Sec. 4, Section 5 prohibits any new clearance in the said forests, and Sec. 26 makes any new clearance within said forests a criminal offence.
In Manoranjan Das vs. State[11], it was held that:
“Where a person makes any fresh clearing from the forest land covered by notification under section 4, he must be held to have committed encroachment which is punishable under section 26(1) of the Act.”[12]
The Nagpur HC has observed in The State of Bihar vs Munshi Kahar[13], that:
“The clearing of the forest land should be recent. The old cultivation does not come within the scope of Section 26. Where it has not been found that the land first began to be cultivated by the applicant or his predecessors and after that the notification issued under section 4, it cannot be said that the applicant has made a fresh clearing.”[14]
VILLAGE FORESTS
Chapter III of the act creates a third category of forest called the ‘Village Forest’. The chapter consists of just one Section. It appears that through Section 28, the act aims to deliver specific rights to the residents of villages located in these reserved forests in exchange for their involvement and contribution to the management, security, and development of these forests.
Section 28 (1) empowers the government to allocate the right to land that is reserved under Chapter II to certain village communities to manage them on their behalf whereas Clause (2) authorises the govt to formulate rules for such management.
In U. Khastia Vs Range Officer case (1958)[15], The SC ruled that only state governments were empowered to make such pronouncements, and since the Manipur state government had not granted the forest ranger any authority to provide settlement in that region, his actions were unlawful.
Clause (3) decrees that all the elements of the act involving to ‘Reserved Forests’ will also be applicable for village forests. Thus, anybody who undertakes in any activities prohibited under section 26, inside a village forest will also be considered an encroacher and be liable to be punished with imprisonment for a term which may extend to 6 months or with of upto 500 rupees, or both.
Moreover, the formation of Village Forests under this Chapter must take place in the manner prescribed in Chapter II i.e. via notification under Section 4.
PROTECTED FORESTS
Protected Forests are only slightly less strictly regulated than Reserved Forests. Chapter IV of The Indian Forest Act stipulates where, when, and how the state can constitute a protected forest. It prescribes the procedure for such notification, of reserving specific classes of trees, of making rules for governance and of the quantum and nature of punishment for the violation of such rules.
According to Section 29, states have the power to declare any waste land or forest land that has not been previously reserved under Chapter II, as a protected forest. Furthermore, Section 30 permits states to reserve any species of tree, prohibit the use for forest produce and suspend the rights of private persons to that forest for a period of thirty years.
Section 30 must be read in conjunction with Section 31 of the Act. The notifications made under Sec. 30 of the Act are ineffective unless they are translated into the regional local languages and broadcast under Sec. 31. It was established in the case of State of Bihar versus Munshi Kahar[16] that no guilty verdict could be obtained in violation of this intimation.
In the case of State of HP vs Tangin Durja 1989[17], the Shimla High Court held that no indictment under the Indian Forest Act could be obtained only after prosecutors demonstrates that the forest in issue has also been deemed a ‘protected forest’ under Section 29 of the IFA, and its trees have been proclaimed as ‘reserved’ under Section 30 of the IFA, and a confirmation in this context in the local language has been made public under Section 3 of the IFA.
Moreover, the notification that is published must provide a fixed date from which the land in question will e deemed a protected forest. In Moslem Sirkar Vs Empower[18], it was held that if the notification issued fixes no date it is invalid.
Section 32 confers power in the hands of the State Government to furthermore formulate rules to regulate the “cutting, sawing, conversion, or removal of trees” in protected forests. They also have the authority to prohibit any “encroachment, breaking up or clearing the land in a protected forest for cultivation, for building, for herding cattle or for any other purpose”.
Section 33 provides for penalties in case of breach of the rules mentioned in Section 30 and 32. Individuals convicted of these offences can incur punishments ranging from imprisonment for a term of 6 months to a 500 rupees fine, or both.
The act stipulates 8 types of encroachments to protected forests under Section 33:
- The cutting or tapping of any trees that are reserved under section 30
- The stripping of the bark or leaves of a trees that are reserved under section 30
- The quarrying or mining of any mineral that introduces manufacturing processes or relocates any forest-produce in contravention with section 30
- Cutting down or dragging timber causing damage trees that are reserved under section 30
- The clearing of land in a protected forest for the purposes of cultivation or any other use
- Lighting any such forest on fire wilfully or due to gross negligence
- Permitting cattle to cause damage to such forests
- Infringe any rules made by the state under section 32
In comparison, Section 33 (Protected forests) unlike Section 26 (reserved forests) does not provide for the award of compensation in addition to punishment for damages caused. Moreover, in Protected Forests, cutting down or damaging reserved tree species is prohibited whereas in Reserved and Village Forests the entirety of the forest land is protected.
CONCLUSION
Prosecution of offences is a big hurdle in India, there are many factors that can easily derail the process such as the lack of records to prove the existence of notifications, the absence of a concrete definition of the term ‘forest’ in the act, the fact that abetment hasn’t been made an offence and the irony that the penalty of compensation does not extend to offences against a ‘Protected Forest’ along with the unrealised vision of forest-courts to ensure speedy disposal of cases among many others.
Indian forests have been exploited for almost a century under this ancient law and these issues have only been exacerbated with the passage of time even though they can be fixed easily with more efficient administrative tactics and filling those loopholes in legislation that allow offenders to get off scott free.
The government has recently shown a willingness to amend the Indian Forest Act and had even come out with a draft in 2019. Although it came up short and was shelved, the need for reform is omnipresent in all communities and neighbourhoods of India’s forest dwellers. In my view, the Indian forest act has not envisaged a thorough framework for the compensation of damages inflicted onto forests by persons involved in unlawful activities that contravene the laws that are in place to safeguard forest land. Thus, it is imperative that these amendments are made soon.
Author’s Name: Disha Malkani (Symbiosis Law School Hyderabad)
[1] Late Prime Minister Smt. Indira Gandhi at World Conservation Strategy in India launched on 6″‘ March, 1980
[2] Indian Forest Act 1927, Section 4-20
[3] Section 4, IFA 1927
[4] Section 7, IFA 1927
[5] Section 11, IFA 1927
[6] Supra 20, Section 20
[7] The word “clearing” has been defined in the case of Emperor Vs. Venkenna Probha as “something in the nature of the removal of trees or shrubs”
[8] Section 26, Indian Forest Act, 1927
[9] 1989 (1) Bom CR 287
[10] 1964 (2) Cr. L.J. 496 (Tripura)
[11] 1972 Cr LJ (Tripura)
[12] Ibid
[13] AIR 1929 Nag 190
[14] Ibid
[15] AIR 1958 Manipur 31
[16] AIR 1963 Pat 195
[17] ILR 1989 HP 52
[18] AIR 1927 Cal 516
