India: forest-dwelling communities in the crosshairs

CPA Project. The Wildlife Protection Act (WPA) is a 1972 law that aims to protect the conservation of wildlife animals and to prevent the hunting and trade of these animals or their products. For example, hunting is only permitted for the purposes of education or scientific research and in the case of the defence of a person or property. The WPA has also enabled the creation of protected areas in forests, such as national parks and sanctuaries. This means that entering a protected area can constitute an offense in several locations. Although forest-dwelling communities have depended on hunting and forest-based livelihoods for centuries, their interests were not taken into account when the WPA was adopted. As a result, the Act ended up criminalising the communities’ livelihoods without considering their existence.

Forest-dwelling communities fought for decades to have their traditional rights acknowledged. Their struggle led to the adoption of the Forest Rights Act (FRA) in 2006. This Act recognised that communities are the primary custodians of the forests and have particular rights. In addition, it gave communities the right to develop and protect forests, intellectual property rights over traditional knowledge and rights relating to development activities in forest areas, including reserves.

Nevertheless, our research has shown that the Forest Department — which is responsible for reinforcing all forest laws — continues to criminalise forest-dwelling communities. For instance, these communities farm and sometimes erect temporary fences around their farms to protect the land from wild boars and other animals. This is recognised as a self-defence right. Occasionally, animals get trapped in the fence and die. The Forest Department then considers this to be hunting and prosecutes the community members, who face a real dilemma. If they do not build a fence and their crops are destroyed, they won’t be compensated. If they do, they risk being accused of hunting. We could give many more examples. In one case, for instance, a man found an injured Sarus crane (a species protected by the WPA) and cared for it for 15 months. He later found that he had been charged for this.

The WPA is thus used to criminalise the rights of communities, even though these rights are recognised by the law. It allows the authorities to exercise total control over the lives of communities living in the forests, from restricting their movements to conducting searches without authorisation.

CPA Project. The examples we cited above enter the criminal justice system once a Preliminary Offence Report (POR) is issued by the Forest Department. These reports are often so general that it is difficult to understand what exactly the offence was, which could have happened anywhere and been committed by anyone​​. In addition, offences under the Wildlife Protection Act (WPA) are bailable, which means that the accused can be granted bail as of right. However, in addition to the WPA, the forest department and the police use the provisions of other laws for which bail is not possible, so as to make arrest compulsory. And unlike other criminal laws, where the prosecution has to prove that the person committed the offence, the burden of proof is reversed under the WPA: the accused person must convince the judge of their innocence.

Once an individual has been arrested, the costs for continuing legal proceedings are excessive. At the stage of bail, the average cost is between 15,000 and 20,000 rupees (165-220 euros). Members of forest-dwelling communities therefore often go into debt to obtain bail, especially as cases generally remain pending for years (five to six years on average). The financial burden of each subsequent appearance before court is particularly significant, which includes the lawyer’s fees, the bribes paid to the court staff and the travel from the village to the court. Many of these people are daily wage labourers, so each time they go to court they lose their income.

In several cases, being charged classifies the person as a “habitual offender”. This means that the Forest Department or the police have a criminal database containing personal information, even for people found not guilty by a court or who have passed away. We found habitual offenders’ registers as old as 20 years containing extensive details on individuals.

This habitual offender system stems from the Criminal Tribes Act, a colonial British legislation that considered more than 300 tribes to be criminals by birth. This text was reintroduced after Indian independence and replaced by the concept of habitual offenders. Those considered habitual offenders are all people from oppressed castes and end up in prison more often than other Indian citizens.

Once in prison, the forest-dwelling people are generally separated from the rest of the prison population. The division of work in detention is based on your caste, which means that prisoners from the forest-dwelling communities often find themselves washing toilets and working for other prisoners. In India, families must bring food and money so that the prisoner can buy things. However, families from those communities are often unable to visit their loved ones because they cannot afford the travel.

CPA Project. One of our aims is to change perceptions and dominant narratives. For example, there is a Convention on International Trade in Endangered Species of Wild Fauna and Flora, which is an agreement between governments, including India’s, to protect animals and regulate international trade of forest products. The people involved in these huge international trades are not forest dwelling communities who hunt for their livelihood. Ultimately, the way the law is applied only criminalises these communities and reinforces the idea that their existence is a threat to wildlife. When, instead, these communities have always safeguarded the forest and its wildlife. The same is true of other indigenous communities around the world.

A lot of people, including a large number of wildlife conservation organisations, believe that the indigenous communities must be civilised, and that their practices, such as hunting, are barbaric. These people need to be informed about what ecological sustainability means, and so it is part of our role to lead advocacy work on this issue. We are also pushing for the Forest Department to put an end to the prosecution of people who are only exercising their rights.