The Unconstitutionality of Compensatory Afforestation Act, 2016: The Tribal Land Rights Struggles of Chhattisgarh and Odisha

Divyanshu Saxena

“The two laws are genetically different. The Forest Rights Act, 2006 is people-centric while, the Compensatory Afforestation Fund Act, 2018 is bureaucratic-centric. It is a recipe for conflict.” [1]

The case study pertains to the environmental and tribal injustices being perpetrated by the central government’s Ministry of Environment, Forests and Climate Change by permitting the forest clearance of almost 834 acres of rich forestlands in the heart of Hasdeo Arand Forests in the year 2015 which is located in the Surajpur district of Chhattisgarh for the setting up of the Parsa Coal Mine owned by the state-owned company RRVUNL and the Adani Enterprises Ltd. that will eventually lead to the displacement of a large number of indigenous tribal communities from their ancestral lands and will lead to the destruction of the natural heritage that is consisted of the endangered flora and fauna sustaining within these ‘tribal ecosystems’.

The same kind of forest clearances have also been granted by the state government of Odisha to allow over 1700 acres of forestlands in the Keonjhar District to be destroyed on account of the setting up of the iron ore mine owned by Tata Steel Co. Ltd. and has led to the displacement of over 50 historically native indigenous groups from their ancestral lands for plantation of trees under the ‘Compensatory Afforestation Scheme’ of the forest department.

In the Korea District of Chhattisgarh, without the proper consultation and discussion with the representative of the Gram Sabha and other local tribal bodies, the land rights of the tribal groups dwelling in over 500 acres of the common forestlands have been snatched away by the officials of Forest Department along with the help of laborers by erecting huge fences and walls to earmark the lands to be subjected to plantation under the Compensatory Afforestation Scheme of the central government.

The above-mentioned situation has occurred due to the forest clearance that has been granted to the RVUNL and Adani Enterprises Ltd. for the Parsa Coal Mine located in the adjoining district, which has subsequently, led to the dissolution of the community entitlements of the indigenous tribal communities across 1600 acres of tribal forestlands that will be put under plantation through the implementation of the aforementioned policy.

This proposed area is spread across 16 villages of the Korea District that is inhabited by thousands of distinct and vulnerable indigenous groups that are now facing the threat of displacement from their native lands on account of arbitrary executive action as well as ‘targeted legislation’ that directly threatens their means of survival as well as their food security.

Moreover, the Compensatory Afforestation scheme, as endorsed by Prime Minister Modi in his recommendations to set up a Compensatory Afforestation Fund through the Compensatory Afforestation Fund Act, 2018, currently amounting to Rs. 56,000 crores, is in direct conflict with the protections guaranteed to the tribal communities under the Forest Rights Act, 2006 and the PESA Act, 1996.

The tribal women of Korea District spent 17 days in prison on being booked by Forest Officers while protesting against the forcible earmarking and fencing of their ancestral lands by the forest officials. The examples of Chhatisgarh and Orissa reveal that the community land rights of these indigenous groups residing within the scheduled areas are being exploited by the colonial attitude of the forest department of the concerned state governments, which has led to the ‘double displacement of the vulnerable and weak indigenous groups.

The narratives of a village sarpanch in these affected areas reveal that there has been no consultation or discussion over the fate of the community lands by the forest officials with the representatives of the victim indigenous groups. The arbitrary actions of government officials depict a sense of contempt against the existence of the forest-dwellers, whose rights and entitlements are being threatened by the greed and negligence of the authorities.

An independent study done by a US agency upon the level of implementation of the Forest Rights Act, 2006 as a national policy reveals that only 3% of the awards or settlements under the afore-mentioned Act have been amicably reached upon between the state and the tribal groups leading to a large number of pending land rights claims and tribal conflicts being accumulated against the reckless deforestation and development schemes of the state as according to a report, over 1.24 lakh hectares of forestlands have been permitted to forest clearance by the Ministry of Environment, Forests and Climate Change between the year 2014 to 2018 by using the Compensatory Afforestation Scheme as a suitable excuse for the degradation of natural reserves and forests. The reckless rate of granting forests clearances under the same policy has led to severe land conflicts and thus, in the year 2017, the Ministry recommended the setting up of land banks in these regions to ensure the compensatory afforestation as well as in the year 2019, suggested that if a state already has 70% of the land under forestlands category, then the compensatory afforestation must take place in another state to compensate for the ecological losses.

In the year 2008, the Supreme Court of India dealt with the writ petition filed by the Wildlife First, Nature Conservation Society, Tiger Research and Conservation Centre, etc. for raising the constitutional concerns over the misuse of due process mechanisms and regulatory powers by the FRA, 2006 as it was inherently violative of the constitutional provisions such as Article-21 and Article-14 read with the Article-48A and Article-51A(g). [2]

But, the ignorance of the policymakers has led to the double displacement – first, due to the forest clearance and second, due to the compensatory afforestation policy, of the indigenous groups that are on the verge of extinction due to the structural violence and systemic oppression that is concealed within the words of the legal provisions and executive orders. The example of Orissa shows how the rational “Compensatory Afforestation Policy” is fundamentally against the natural laws of evolution because more than 44% of the forestlands in Orissa is under shifting cultivation as practiced by the indigenous groups in the Keonjhar District and thus, an alternative of compensatory afforestation that specifies plantation of – eucalyptus, teak or acacia in these rich ecosystems will never be able to rehabilitate the huge loss of flora and fauna caused due to the ‘conscious planning’ or ‘conscious designing’ of social institutions for the fulfilment of capitalistic developmental schemes and goals as designed by the state.

II. APPLICATION:

  1. SUMMARY OF THE KEY CONCEPTS:

“Intelligent beings may have laws of their own making, but they also have some which they never made.”[3]

In chapter-1 of his book titled ‘Law, Liberty, and Legislation’, Friedrich Hayek contested the claims of ‘Constructivist Rationalists’ by emphasizing upon the idea of ‘Anthropomorphism of primitive thinking’ being reinforced by the arguments of the rationalist philosophy. He explained ‘reason’ as a logical deduction from explicit premises and stated that the age of reason has guided the process of social evolution away from the trajectory of historical and traditional values within the framework of the constantly evolving social order. The distinction between ‘deliberate human action’ and ‘human action’ becomes vague within the imagination of rationalists leading to the endorsement of ‘conscious social planning’ or ‘conscious social designing’ as a tool of governance by the state.

Therefore, despite the apex Court’s recent order of 2019[4] passed in the same matter directing the forest officials of the state governments of over 16 states in India to forcefully evict a population of 1.1 million of OTFDs illegally residing in the different tribal regions, the forest authorities have failed to displace the aforementioned classes of forest-dwellers due to the lack of proper surveying of the targeted regions, lack of proper identification of the community land entitlements, etc.

The pragmatic account of history specifies the significance of the social contract theory in the evolution of the ‘human reason’, which reflects that the role of ‘conscious or deliberate planning’ played by the structural institutions is inevitable within the policy-based functioning of modern ‘democratic governments’.

Hayek has cautioned us about the fact that the effectiveness of human actions is not singularly dependent on the possession of total knowledge but, rather is a product of the experience of generations that underwent the process of natural selection within the social evolution. He emphasized that human actions are directly related to the observance of the rules of conduct that become the part of social practices and become successful for certain social groups which subsequently, leads to the attainment of a certain level of ‘regularity of action’ through the process of imitation amongst the masses. The rationalist approach suggests identifying the relations between cause and effect demonstrates the strive for unchecked powers and unfettered control of the social planner or designer over the particular facts and circumstances within the social order. Hence, it is rightly inferred by Hayek that for the rationalist mind, the possibility of justice depends upon the knowledge of all particular facts. He also stated that the errors of constructivist rationalism are closely connected with the idea of ‘Cartesian Dualism’.

  1. APPLICATION OF THE KEY CONCEPTS:

“If you want good laws, burn those you have and make new ones.”

-Voltaire

The case study is a shocking example of the limitations of the rationalist approach and the dangers of rationalist social planning. The analysis of the facts demonstrates the insufficiency of the monetary amount of Rs.56,000 crores, rationally constructed by the state as Compensatory Afforestation Fund to be able to rehabilitate the grave environmental and social injustices being perpetrated upon the members of a large number of vulnerable and indigenous tribal communities by the Ministry of Environment, Forest and Climate Change under the guise of the above-mentioned policy. Hayek cautioned us about the unchecked powers being exercised by the institutions to justify their arbitrary actions which lead to a necessary encroachment of the state upon the rights and entitlements of the marginalized groups.

The case study reveals the grave violations of the constitutional guarantees under the Article-21 of the Constitution as the people of Korea District in Chhattisgarh, are suffering from the denial of the basic right to livelihood and right to food security by the state to allow the development of the developmental goals of RRVUNL and Adani Enterprises Ltd. by the setting up of the Parsa Coal Mine in the Surajpur District. The ‘double displacement’ of the weaker indigenous groups and the unchecked large-scale destruction of the natural forestlands has been formally sanctioned as a rational alternative by the central and state governments but, the implementation of the ambitious ‘Compensatory Afforestation Scheme’ has subsequently revealed the practical severity and grassroots problems about the land rights conflicts in the schedule areas in light of as much as 1.24 lakh hectares of forestlands across the country being sanctioned under reckless forest clearances by the Ministry of Environment, Forests and Climate Change between the year 2014 to 2018.

The example of the Keonjhar District in the state of Odisha is an astonishing account of the extent of ignorance being exercised by the government as well as the forest officials towards the indigenous tribal communities that are under the constant danger of lack of food security and systemic physical displacement. The undermining of the original intent of the Forest Rights Act, 2006 is an example of the use of ‘reason’ as a tool to delegitimize the role of social and traditional evolutionary processes within a specific social order, such as the scheduled areas of Odisha, Chhattisgarh or Jharkhand.

Moreover, the Compensatory Afforestation Fund Act, 2018 is a perfect example of a ‘targeted legislation’ meant to conceal the grave human rights and land rights violations inflicted by the state upon the tribal communities of Chhattisgarh and Odisha and thus, carries all the ingredients as enumerated by Hayek to demonstrate the paradox of rationalist theory. The denial of the ancestral entitlements to these vulnerable tribal communities in pursuance of the developmental goals by the state directly reflects upon the adverse motives of the Central and State governments. Therefore, the concepts of Hayek, much like Charles Darwin, survived the test of time and proved successful in being relevant to contemporary issues, because he was able to articulate the underlying abstract structures and processes that guide human reason as to be inevitable for social evolution and progress.

    Photo Source: Bikesh Khemka’s Survival

    About The Author

Divyanshu Saxena is currently studying in his final year of the BA LLB course at NALSAR University of Law, Hyderabad. His interests range from critiquing policy-making issues to analyzing deeper socio-legal debates of our contemporary Indian society.

      References

 

  1. Ramesh Sharma (National Coordinator with land rights group ‘Ekta Parishad’) 

  2. Wildlife First vs. Ministry of Forest & Environment and Ors. (WP No. 109 of 2008) 

  3. (Montesquieu, De l’Esprit des lois, I, p. i) 

  4. Wildlife First vs. Ministry of Forest & Environment and Ors. (WP No. 109 of 2008) 

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