1

Legal Protection of Forests

INTRODUCTION
Forests worldwide have been and are being threatened by uncontrolled degradation and
conversion to other types of land uses, influenced by increasing human needs, agricultural
expansion, and environmentally harmful mismanagement including, for example, lack of
adequate forest-fire control unsustainable commercial logging, overgrazing, harmful effects of
airborne pollutants, economic incentives and other measures taken by other sectors of the
economy.
Forests are green lung of the nation. However, India's forests are in a devastated condition.
Forests are being destroyed for the massive development projects, such as dams, mining
operations, timber supply etc. Tribal communities also destroy forests by using them as a source
of fuel, food and building material. Especially, mining operations destroy the integrity of the forest
eco-systems. Soil stability is lost due to mining.
The advent of the British, their empire building, the network of Indian railways, mining
operations, and mega developmental projects have systematically put pressure on forests. The
British looked upon the forests as a renewable asset that required management in order to meet
the timber need of the colonial masters. The process of using the forests for commercial activities,
the process of alienating the forest dwellers from the forests were legitimised by the Indian Forest
Act which was enacted for the purpose of limiting the rights of the people and transferring
ownership of forests to the state. During the British period. the deforestation of India's forests
started rapidly. Forests were considered as a source of revenue for the state and people.
The Indian Forest Act 1865. was the first attempt to assert the state monopoly over forests. The
Act was replaced by a much more comprehensive piece of legislation in 1868. which ensured that
the state could demarcate valuable tracts of forests needed especially for railway purpose. It was
replaced by Indian Forest Act 1927.

CASE: Rural Litigation and Entitlement Kendra v State of Uttar Pradesh [AIR 1988 SC
2187]
Besides the benefits from environmental and ecological perspectives, forests bring revenue to the
state, supply raw material to industries, and act as a source of fuel and fodder.
 2

THE FOREST ACT 1927

The Forest Act 1927, consolidated the pre-existing laws. The preamble of the Act declares that
the Act places emphasis on regulation of transit of forest produce and the duty leviable on timber
and other forest produce. The Act has its origin in the old British colonial era when mankind was
not aware of the environmental hazards for the future.
Originally, forests were placed in the State list of the Constitution of India. Accordingly, the
Forest Act 1927, gives the states jurisdiction over both public and private forests. Public
forests are those in which state governments have proprietary interest. Public forests are
divided into three categories, namely reserved forests, village forests and protected forests.
Legal Protection of Forests
The Act led to the adoption by the government of the policy of reserving forests which deprived
the tribal people of their age old rights and privileges. The forests became a source of revenue and
raw materials. The considerations of maintenance of eco-balance and preservation of environment
were ignored. The myopic revenue oriented policy of the government toward forests reigned
supreme. The Act worked against the interests of the rural and tribal people whose substantial
existence depended solely on forest resources. The Act completely ignored the factor of immense
contribution of forests in the maintenance of eco-system and preservation of environment.

KINDS OF FORESTS
(FOREST ACT, 1927

PUBLIC FOREST PRIVATE FOREST

(S.38)

RESERVED VILLAGE PROTECTE

FOREST FOREST D FOREST
(S.3) (S.28) (S.29)
CHAPTER - CHAPTER- CHAPTER-
II III IV
3

Reserved Forests

Forest land may be notified by the State Government as reserved forest. The notification by state
extinguishes previously recognised individual or community rights over forest, namely food
gathering, grazing, fuel wood collection, etc. Access to reserved forest and forest products
becomes a matter of privilege subject to permission of forest officials. The Forest Act 1927,
contains procedures for making claims against the government for the loss of legal rights over
forest.
Chapter II of the Act deals with the power of the state to declare any forest land, which is the
property of government or over which the government has proprietary rights, or any part of the
forest produce of which the government is entitled a reserved forest. It is provided that whenever
the State Government decides to constitute any forest land as reserved forest, it shall issue a
notification in the Official Gazette, and shall appoint a Forest Settlement Officer to enquire into
and determine the existence, nature and extent of any rights alleged to exist in favour of any
person. The notification extinguishes all kinds of rights banning food gathering, grazing. fuel
wood collection, etc.
Section 26 of the Act deals with prohibition of certain acts in the reserved forests, namely fresh
clearing, setting fire, trespassing, pasturing cattle, causing damage by negligence, felling any tree
or cutting or dragging any timber, felling, girdling, lopping, tapping, burning tree strip, hunting,
shooting, fishing, poisoning of water etc. Such kind of activities shall be punishable with
imprisonment for a term which may extend to six months or with fine, which may extend to five
hundred rupees or with both.

Village Forests

Village Forests are established when a state assigns to a village community the rights over any
land which has been constituted as a reserved forest. The State Government make rules for
providing the village community with timber, other forest products and for assigning duties to the
village community for the protection and improvement of the forest.
Chapter III of the Act deals with the formation of village forest. The State Government may
assign to any village or community, the rights of government to or over any land, which has been
constituted as a reserved forest. All forest so assigned shall be called 'village forest'.
4

Protected Forests
Any forest land may be designated by the State Government as protected forest in which the state
government has proprietary right to any part of the forest products. Protected forests cannot be
created from the reserved forests. Chapter IV of the Act deals with protected forests and
empowers the state government to declare, by notification in the gazette, the provisions of this
chapter to be applicable to any forest land or wasteland, which is not included in reserved forest
but which is the property of government, or over which the government has proprietary rights, or
to the whole or any part of the forest produce of which the government is entitled.
The Forest Act 1927, authorizes State Governments to close portions of the forests as long as the
remainder of the forest is sufficient for individuals and communities to exercise their existing
legal rights to use the forest.

Private Forests
Private forests are not the property of the government. However, the Forest Act 1927 authorizes
State Government to regulate timber cutting, cultivation, grazing and burning or clearing of
vegetation on private forest land. The Act also enables the state government to acquire private
forest land for public purposes under Land Acquisition Act of 1894.
The Forest Act 1927, also provides for protection and compensation for legally recognised
individual or community with rights to forest land or forest products.
In Bhagwan Bhoi v State of Orissa [AIR 2002 Orissa 201], the question before the Orissa High
Court was whether the Forest (Conservation) Act 1980, applied to private forests. The owner of a
piece of land filed writ petition in the Orissa High Court for the issuance of a writ of certiorari to
quash the directions issued by the Divisional Forest Officer calling upon him to stop falling of
trees on the property which formed a part of private forest. The High Court of Orissa held that
Forest (Conservation) Act 1981, applies to private forests as well.
The Forest (Conservation) Act 1980 was enacted with a view to check further deterioration which
ultimately results in ecological imbalance; and therefore, the provisions made therein for
conservation of forests and for matters connected therewith, must apply to all forests irrespective
of the nature of ownership or classification thereof. The word 'forest' must be understood
according to its dictionary meaning. This description covers all statutorily recognized forests,
whether designated as reserved, protected or otherwise.
5

CONSTITUTIONAL STATUS
Before the Constitution (Forty-second Amendment) Act passed in 1976. states had the power was
to legislate on forests on the Constitution of India. The Forty second Amendment included the
issue of protection and safeguarding of forests in the directive principles of State policy as well
as fundamental duties of citizen.
Article 48A of the Constitution is titled as protection and improvement of environment and
safeguarding of forests and wild life. It provides that:
The State shall endeavour to protect and improve the environment and to safeguard the
forests and wildlife of the country.
Article 48A is not mere policy prescription for the states to safeguard the environment and wild
life of the country but has the effect of calling upon the states to safeguard the forests.
Article 51A(g) is a part of the fundamental duties and provides that:
It shall be the duty of every citizen of India to protect and improve the natural environment
including forests, lakes, rivers and wild life and to have compassion for living creatures.
The Forty Second Amendment also inserted Entry 17A in List III (Concurrent List) which
provides for forests and empowers the Parliament to enact law concerning forests. Earlier List II
(State List) included forests.
FOREST (CONSERVATION) ACT 1980
The transfer of forests from State list to Concurrent list of the Constitution empowered the Central
Government to act directly in managing India's forest. In 1980, the Ministry of Environment and
Forests was set up. In 1980. the Forest (Conservation) Act was passed which was amended in
1988.
The National Forest Policy which was adopted in 1952 was also revised and the revised National
Forest Policy was adopted in 1988. An analysis of the forest laws and the National Forest Policy
not only shows that the Indian Government has adopted a policy sympathetic to the needs of forest
dwellers but also has enacted laws which restrict access of those people to the forests. The welfare
of the forest dwelling communities has been accepted as a major objective of the forest policy.
The forest policy clarifies that the rights and concessions enjoyed by the tribals living within and
near forests should be fully protected. Their domestic requirements of fuelwood, fodder, minor
forest produce and construction timber should be the first charge on forest produce.
Section 2 imposes Restriction on the dereservation of forests or use of forest land for non-forest
purpose. The State Government or other authority shall not make laws without the prior approval of
the Central Government.
6

RIGHTS OF TRIBAL PEOPLE vis a vis

Fatesang Gimba Vasava v State of Gujarat[AIR 1987 Guj 9]
In this case, the tribal population was supplied bamboo at reduced rates to enable them to carry
out a living by making articles for sale in the open market. However, the state forest officials
blocked the transport of articles on the ground of possible exploitation of forest in a reckless
manner. The Gujarat High Court held that this was wrong. The court laid emphasis on the rights
of tribals to depend on the forest, which was the only source of their livelihood. The court also
observed that once bamboo chips are transformed by human labour into a commercially new and
distinct commodity, the article ceased to be a produce of nature.
Suresh Lohiya v State of Maharashtra[(1996) 10 SCC 397]
The judgment in Fatesang case was reiterated by the Supreme Court and it held that confiscation,
by forest officials, of bamboo mats made from tribal labour was not valid. Wherever the legislature
wanted to include articles produced with the aid of human labour, the definition made a specific
mention as in the case of 'all products of mines or quarries.'
The court held:

Though bamboo as a whole is forest produce, if a product, commercially new and distinct,
known to the business community as totally different is brought into existence by human
labour, such an article and product would cease to be a forest produce... Bamboo mat is
taken as a product distinct from bamboo in the commercial world, and therefore, it is not
forest produce in the eye of the Act.
S.(4) “forest-produce” includes—
(a) the following whether found in, or brought from, a forest or not, that is to say:— timber, charcoal,
caoutchouc, catechu, wood-oil, resin, natural varnish, bark, lac, mahua flowers, mahua seeds [kuth] and
myrabolams, and (b) the following when found in, or brought from, a forest, that is to say:—
(i) trees and leaves, flowers and fruits, and all other parts or produce not hereinbefore mentioned, of
trees, (ii) plants not being trees (including grass, creepers, reeds and moss), and all parts or produce of
such plants, (iii) wild animals and skins, tusks, horns, bones, silk, cocoons, honey and wax, and all other
parts or produce of animals, and (iv) peat, surface soil, rock, and minerals (including limestone, laterite,
mineral oils, and all products of mines or quarries);
7

The court rejected forest department's plea that exclusion of bamboo products from the definition
of forest produce would frustrate the object of the law and give unscrupulous dealers an
opportunity to denude the country of the forest wealth. One may note that the plea, if accepted,
would have done more harm than good, as it had the inherent danger of taking away the rights
of tribal population to their habitat and livelihood.

TRIBAL LAND
In the past several years, the economically advanced and politically powerful ethnic groups had
established their hold over tribal lands. In certain cases, the agricultural poor were also given lands
in the forest area. The changed scenario pushed the tribal people into enslavement and extinction.
It became necessary that the tribal population should be saved from being exploited by plainsmen.
Various states took up legislative measures for restoration of tribal lands already alienated to the
non-tribals, and prohibition of further alienation.
Reddy v State
Frequently it happens that the tribals being totally ignorant and unable to prove their title to the
land fall an easy prey to the scheming by non-tribals. In the absence of a statutory protection, it is
likely that the economically stronger non- tribals would take over all available lands and wipe out
the very identity of the tribals
Tribal People: Friends or Foes
Two decisions relate to tribal rights and privileges in the forest area.
In Pradeep Krishen v Union of lndia[AIR 1996 SC 2040] , the Supreme Court suggested:
If one of the reasons for the shrinkage in forest is the entry of villagers and tribals living in and
around the sanctuaries and the 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 these areas. Besides felling trees, certain other acts are also prohibited in reserved forests.
Nobody can hunt, shoot, fish, trespass, or pasture cattle in contravention of the rules.
Further, once the state government declares an area a sanctuary or national park, the limits
of rights and claims are determined.
Animal and Environment Legal Defence Fund v Union of India [

The Supreme Court had to resolve a dispute between two neighbouring states on the rights of
tribals. In that case, the Government of Madhya Pradesh allowed fishing permits to the displaced
tribal people in Totladoh reservoir within Pench National Park. The Government of Maharashtra
objected on environmental grounds, such as potential danger of felling trees, harm to crocodiles
8

and turtles in the reservoir, disturbance to water birds and migratory birds, and the possibility of
lighting fires and throwing garbage and polythene bags around and into the reservoir. The face
that displaced persons were not systematically rehabilitated weighed more in the balance. The
court observed:
“... while every attempt must be made to preserve the fragile ecology of the forest area and protect
the Tiger Reserve, the right of the tribals formally living in the area to keep body and soul together
must receive proper consideration. Undoubtedly, every effort should be made to ensure that the
tribals, when resettled, are in a position to earn their livelihood.”

The court noted that India had forests far less than the stipulated one third of its land. The
observations in both the aforesaid cases are relevant in assessing the symbiotic relationship
between the tribals and the forest. In the past, tribal people were considered protectors of
forests. However, when needs of development started to displace them from their habitat,
the tribals were seen as a group posing a threat to the environment. This conflict lies at the
very foundations of all legislative policies, and is a bye-product of the socio-economic
development. As the apex court has indicated, urgent steps are necessary for bridging the
gaps in the relationship between tribals and the forests.

MEGA POWER PROJECTS

Banwasi Seva Ashram v State of UP [AIR 1987 SC 374] ( NTPC PLANT)
PIL was filed by Banwasi Seva Ashram on behalf of the local adivasi people who were protesting
against the reservation of forest land by the state. These adivasi people lived in or near the forest
for generations and enjoyed forest products, namely fruits, vegetables, fodder, flowers, timber,
animals and fuelwood. The petitioners alleged the violation of article 21 of the Constitution of
India as the forest dwellers were asked to evict and restrain from enjoying forest products which
they enjoyed for generations.
The State Government informed the Court that it needed the disputed forest land for NTPC for
building a project for the generation of electricity.
Finally, the Supreme Court found the scheme for generating electricity of national importance and
allowed acquisition of land by the state despite its earlier order preventing dispossession of
occupants. The court said the concept of sustainable development demanded that the oustees
be rehabilitated after examining their rights. The Supreme Court has balanced ecological
and developmental imperatives and gave prominence to developmental imperative looking
to the facts and circumstances of the case.
9

For industrial growth as well as improved living facilities, there is great demand in this country
for energy such as electricity. A scheme to generate electricity, therefore, is of national importance
and cannot be deferred.

The court imposed more responsibilities in the second Banwasi Seva Ashram case [(1992)2
SCC 202] on NTPC to find out alternative plots, render resettlement and subsistence
allowance, give free transportation, reserve jobs and provide facilities of roads, water
supply, health care and electricity.

Narmada BachaoAndolan v Union of India and Ors. [AIR 2000 SC 3751]

While holding that engineering works for raising the dam and rehabilitation measures
could go hand in hand, the Supreme Court found that the lands allotted to the
displaced people are equal to, or better in quality than, what the oustees originally
owned. Although, the land will submerge, however, according to the court, the
construction of the dam will res ult in m ultifold improvement in the environment of
the area where the canal waters reach. In the court's view, the command area in which
the displaced are resettled is more productive than the affected land.
10

in spite of several
ameliorative efforts on the part of the states. Non- recognition of thei r rights over
forest land and habitat was a historical injustice.

Forest rights on ancestral lands and their habitat were not adequately recognised in the
consolidation of State forests during the colonial period as well as in independent India
resulting in historical injustice to the forest dwelling Scheduled Tribes and other traditional
forest dwellers who are integral to the very survival and sustainability of the forest ecosystem.
The forest rights law of 2007, i.e., The Scheduled Tribes and Other Traditional
Forest Dwellers (Recognition of Forest Rights) Act 2007 aims to do away with this
injustice.
Endowing the tribal people and other forest dweller with certain rights and duties, the
law makes an attempt to recognise the symbiotic

the biodiversity. has become the duty of all holders of forest

rights, gram sabha and village institutions that these decisions are complied with. The
Sixth Schedule provides the forest dwellers in the Sixth Schedule areas a form of self-
government. The forest dwelling people in the Fifth Schedule areas do not have such a
democratic system. Empowering gram sabhas to take important eco-decisions is a step
forward in this direction, They make decisions involving a meaningful forest management
in their respective localities.
The Act recognise rights of the forest dwelling Scheduled Tribes and other traditional forest
dwellers which include the responsibilities and authority for sustainable use, conservation of
biodiversity and maintenance of ecological balance and thereby strengthening the
conservation regime of the forests while ensuring livelihood and food security of the forest
dwelling Scheduled Tribes and other traditional forest dwellers.
CONCLUSION
The state shall ensure and strive towards sustainable development. It shall continue to take
measures to protect the rights of the forest dweller and tribal communities who depend upon
the forest for their livelihood without compromising with the technological advancement and
development of the nation.