Legislation on forests in India have a colonial and complicated legacy: Bibek Debroy

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January 11, 2018 3:37 AM

Perhaps it has something to do with the increased popularity of Feng Shui. Many people give gifts of Lucky Bamboo.

Feng Shui, Bamboo, Forests in IndiaPerhaps it has something to do with the increased popularity of Feng Shui. Many people give gifts of Lucky Bamboo.

Perhaps it has something to do with the increased popularity of Feng Shui. Many people give gifts of Lucky Bamboo. They are supposed to bring good luck and fortune, especially if received as gifts. (However, better count number of stalks in your vase. Most numbers are fine, but four is terrible.) We can call it Lucky Bamboo, or Friendship Bamboo, or Chinese Water Bamboo, but the plant doesn’t originally come from China. It comes from Africa. However, tLegislation on forests in India  hat’s more like ancestral origins. Today, we do import significant quantities from China, mostly through Mumbai or JNPT. In the harmonised system used for customs, it will figure under the broad 4-digit head of 0602, live plants. Depending on the kind of Lucky Bamboo, there will be a further 8-digit disaggregation.

It will feature as Dracaena sanderiana or Dracaena braunii. It belongs to the plant kingdom and the genus is Dracaena, characteristic of some trees and shrubs. Whatever we may choose to call it, it is not bamboo. Similarly, bamboo may belong to the plant kingdom, but even if we choose to call it a tree, it is not a tree. It belongs to the family Poaceae, which means it is a kind of grass. There are complicated botanical differences between grass and a tree. But one is simple to understand. A tree’s stem is solid, while a bamboo’s is hollow. The Indian Forest Act (IFA) on 1927 has recently been amended, formalising what was initially done through an ordinance. The Statement of Objects and Reasons stated, “The said Act, inter alia, in clause (7) of section 2 defines “tree”, which includes palms, bamboos, stumps, brush-wood and canes.

The bamboo, though taxonomically a grass is treated as tree for the purpose of the said Act, and therefore, attracts the requirement of permit for transit under the said Act. Although, many States have exempted felling and transit of various species of bamboos within the States, the inter-State movement of bamboos require permit when being in transit through other States. The farmers are facing hardships in getting the permits for felling and transit of bamboos within the State and also for outside the State, which has been identified as major impediment of the cultivation of bamboos by farmers on their land. 3. Hence, it was decided to amend clause (7) of section 2 of the said Act so as to omit the word “bamboos” from the definition of tree, in order to exempt bamboos grown on non-forest area from the requirement of permit for felling or transit under the said Act, and would encourage bamboo plantation by farmers resulting in the enhancement of their income from agricultural fields.”

The text of the actual amendment is remarkably short in comparison. Second 2(7) of IFA explained that tree “includes palms, bamboos, skumps, brush-wood and canes”. That “bamboo” was removed.  Incidentally, Section 2(6) of IFA defines “timber” to include trees “when they have fallen or have been felled” and Section 2(4)(a) defines “forest-produce” to include “timber”. I am not going to burden you with more quotes, but do note Section 2(4)(b) of IFA too. “When found in, or brought from a forest”, plants that are not trees will be “forest-produce”. That’s the reason the recent IFA amendment only affects bamboo grown in non-forest areas. Should IFA have been amended? It certainly should have.

But does it demolish the bamboo curtain? It doesn’t, because there is a lot more of clutter. Think of something like the Wildlife (Protection) Act of 1972. What is wildlife? In this piece of legislation, wildlife is essentially defined by naming mammals, amphibians/reptiles, birds, etc, in specific schedules. Protecting endangered species is a different argument. But that apart, what is “wild” about say, a tiger? Is it wild because the species is “wild” or is it “wild” because it is found within a wildlife park? If wildness is an attribute of the species, then should people have been allowed to farm emus? If wildness is an attribute of that specific confined geographical area, then, for argument’s sake, a domestic cat found inside a wildlife park should be classified as “wild”.

Hence, the first tension is this: bamboo anywhere versus bamboo in forest/non-forest areas. (Almost all, if not all, bamboo in the North-East will be in forest areas.) Second, while IFA doesn’t define “forest”, notwithstanding Forest Rights Act (FRA) of 2006, are we clear about what is “forest”, or will it be left to courts (such as in the Godavarman case) to determine what is a forest? Third, where is “forest” in the Seventh Schedule? Today, forests feature as Entry 17A in the Concurrent List. But this is after the 42nd Amendment, famous for other reasons. Before that, “forests” featured in the State List.

We therefore have a Union government cum state government angle, with several states (Assam, Odisha, Maharashtra, MP, Karnataka) enacting legislation/ rules on cutting or transit of bamboo. Fourth, under FRA, is there clarity between rights of the Forest Department vis-à-vis community rights? Think of a piece of bamboo in transit. In the absence of chips embedded into it, how does one establish it originated in a non-forest area? Legislation on forests in India have a colonial and complicated legacy, the antecedents go back to 1865, not 1927. Bamboo has suffered in the process, “in the skirts of the forest like fringe upon a petticoat”. There is still a lot of cleaning up to do.

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