The Wildlife Protection Act & How It Is Used To Criminalise Forest Dwellers

(*Some names have been changed to protect identity)Ajit*, a farmer living around the Kanha national park in south-eastern Madhya Pradesh, had gone to collect ‘rhaar’ (a forest produce which is similar to incense and is used by forest-dwellers while praying), like any other day.However, this time around, the forest officials surrounded him, claiming that he was hunting wild animals. “He was arrested for doing something, which is part of our everyday life. How can we harm the forests by just collecting rhaar? How does that lead to hunting?”Ajit's brother Lokesh* to The QuintAjit*, who belongs to the Baiga tribe, was imprisoned under the Wildlife Protection Act (1972) for 5 months after that and had to pay Rs 20,000 just to secure bail.Undertrial Prisoners in India: Why Are 66% From Marginalised Castes?“His family had to sell everything – jewelry, crops, house, utensils to arrange the money for his bail. They also had to borrow money at an interest rate of 10 percent to pay this amount and then pay the lawyers’ fees,” he added.His case is not an isolated one. In fact, as pointed out by Supreme Court Lawyer Disha Wadekar:“The Wildlife Protection Act criminalises you for using forest resources. But who uses forest resources? Adivasis and other forest-dwelling communities. So, under this law, if you are an Adivasi (or any such forest-dwelling community), you will be criminalised."And, there is data too, that suggests this – a report by the Criminal Justice and Accountability Project (CPA) highlights how within the offences recorded by the Madhya Pradesh Forest Department between 2011 to 2020, close to 78% of the accused persons belonged to an oppressed caste community.Out of the arrest records analysed by the Bhopal-based research and litigation group, 29.5 percent were from marginalised caste groups.The Wildlife Protection Act 1972 and its 2022 amendment seek to protect wild animals, birds and plants to ensure “the ecological and environmental security of the country.”The Wildlife Protection Act 1972 and its 2022 amendment is meant for the protection of plants and animal species in forests. Both the 1972 and 2022 versions of the act outlaw hunting certain animal species or harvesting certain plant, or animal species.Among other reforms, the 2022 amendment increases the penalties for violations (from Rs 25,000 to Rs 100,00 for general violations & from Rs 10,000 to Rs. 25,000 for animals receiving most protections.)But, as pointed out by Wadekar and the CPA report, this is being used for “covert criminalisation of forest-dependent livelihoods.” How though?“My neighbour went to catch fish in the river that divides the village and the protected forest area, when he was charged with the Wildlife Protection Act. He hadn’t even gone into the protected area and fish is part of our staple diet. How is this fair?”*Mohan Lal, Land Rights Activist, MandlaIn the 57 cases registered by the forest department for fishing between 2016-2020, the forest department claimed that the fish were protected under Schedule V of the act and, thus, catching them amounted to violating the act. Schedule V mentions ‘vermin’ species protected under the act but has no mention of fish. Further, it is to be noted that the fish mentioned in Schedule 1 of the act are not found in local waterbodies of Mandla.Violation of Forest Rights Act: Moreover, if authorities criminalise fishing, they act in direct violation of the The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. Section 3 (1) (d) of the act says that it recognises:“community rights of uses or entitlements such as fish and other products of water bodies, grazing (both settled or transhumant) and traditional seasonal resource access of nomadic or pastoralist communities.”“Therefore, such cases under the WPA are illegal, except cases related to the species of fish mentioned in the schedules of WPA, as they criminalise already recognised rights of forest-dwelling communities,” the report explains.In Ajit’s case too, the case against him and his arrest was in contradiction with the 2006 act, because it says that it grants "the right of ownership, access to collect, use, and dispose of minor forest produce which has been traditionally collected within or outside village boundaries.”"So what the government is doing is, giving them certain rights under one act and then criminalising them through another act for using those rights."Disha Wadekar, Supreme Court Lawyer'No Dignity in Death': Dalits in Gujarat Fight For CrematoriumsUnder the Wildlife Protection Act, even entering a reserved forest area can be treated as an offence. Meanwhile, the study found that “forest officials invoke Section 144 of the CrPC to prevent movement and entry into forests, which further result in arrest, detention and punishment for practising their culture.”And how does that play out for the those living in forests?“We have no physical temples. We worship nature. At least 5-10 villagers have been booked under the act for praying in the forest during a wedding,”*Mohan Lal, Land Rights Activist, MandlaThis violates Article 25 of the constitution which guarantees the freedom of religion.Baigas are traditionally known to eat ‘garra meat’ or the leftover from a tiger’s prey.“But the mere possession of meat, even without killing the animal itself, is categorised as an offence under the WPA,” the report says.Section 57 places the burden of proof on the accused when they are found in “possession, custody or control of any captive animal, animal article, meat, trophy.”According to Mohan Lal, wild boars attack crops in farmlands, quite frequently. Farmers often spend nights at their farms trying to protect their crops and in the process if a boar gets injured or killed, that becomes a crime too.The CPA report, after an analysis of the complaints, reveals that the most hunted animals were wild boar (jungli suar) at 17.2 percent.“Where people tried to put a fanda (fence) around their farmland, wild boars often tore through the fencing and attacked crops anyway, or they were caught in the fence and died. Though this fencing was an act of self-defence, this triggers criminal prosecution as a hunting offence,” the report says.A report titled ‘Criminalisation of Adivasis and the Indian legal system’ launched in April 2022 by the Indigenous Peoples Rights International (IPRI), notes:“If you belong to a community that has been residing inside a forest that now stands declared as a Protected Area under the Act, you would be an offender by mere residence.”While the Indian Evidence Act mandates that confessions made to police officers will not count as evidence, the Wildlife Act investigation manual empowers "any officer not below the rank of an Assistant Director of Wild Life Preservation or an officer not below the rank of Assistant Conservator of Forests" to use confessional statements as evidence.Some of the accused have claimed that they were subjected to custodial violence in a bid to extract a confession.“My brother was beat up and forced to confess to the offences that they had charged him with.”*LokeshFurther, Section 57 of the Act, puts the burden of proving themselves innocent on the accused. This violates the maxim of being innocent until proven guilty.Let us recall that even in offences as heinous as murder, the burden of proof remains with the prosecution. So why should the burden of proof in these cases lie with the accused, and not with the State – which has considerably more resources at its disposal? How will an accused; who is most likely locked up, and who in any case has fewer means to probe; go about gathering evidence to prove their innocence?How Do Police Get Away With Custodial Torture? Blame the LawThe procedure of investigation in these cases raises concerns too. The CPA report explains how:Unrevealed sources: The police and the forest departments relied on information from mukhbirs or informants (who are not revealed) to investigate a crime in 86% of the FIRs. “Both these tactics of the police and forest departments show the discretionary power exercised in determining an offence, especially when no clear allegations are recorded,” the report says. ‘Vague Locations’: While registering the offence, the police have used “largely vague” descriptions of locations where the offences are likely to have occurred. ”Descriptors that noted a particular local physical indicator were still only merely noted as talaab, nadi, ghat, or near the bridge, school or market.” ‘No Weapon Recovered’: “The weapons that are seized hold the key to establishing how an animal is hunted and to sustain a charge under the WPA,” the report notes. In 51.27% cases out of the total number of cases, no recoveries were reported. Among these, in 22.62% cases the method of hunting is mentioned as ‘Other’ and 31.45% are cases with ‘Unknown’ method of hunting. Facilitating Arrests: Among the arrests made, in 68% of the cases, accused under the WPA were also booked under other laws, including the Indian Penal Code (IPC) 1860; the Arms Act, 1959; the Mines And Minerals (Development & Regulation) Act, 1957; and the Environment (Protection) Act, 1986. “The police employed the tactic of using other Acts in conjunction with the WPA, which treats offences as bailable,” the report pointed out, “so as to render arrest compulsory.” What is perhaps, equally concerning, if not more:“While these laws presume that an Adivasi is guilty of any and all offences that are charged against them, all public officers remain indemnified against any attempt of action against them. There is a classic case of the king can do no wrong and neither can his agents.”(With inputs for interviews from Garima Sidar, who is a second generation learner from the Gond tribe and works as a research consultant with the Criminal Justice and Police Accountability Project.)

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The Wildlife Protection Act & How It Is Used To Criminalise Forest Dwellers

In Madhya Pradesh, between 2011-2020, close to 78% of the accused persons belonged to an oppressed caste community.