Mumbai: A farmer and day wage labourer living in a tiny village on the outskirts of the Kanha national park in south-eastern Madhya Pradesh, A* is among a group of men who in 2020 spent five weeks in the district jail in Mandla, nearly 50 km from his home.
They were arrested for hunting wild animals, though A said he was only accompanying friends on an outing in the forest.
“It is more than a year now that we have to go to court whenever the lawyer says,” he told Article 14 over the phone, “and then we are given a next date.” According to A, the trial has not begun.
A, arrested under sections of the Wildlife Protection Act (WPA), 1972 and other offences he was not certain of, said he lost a day’s work or wages every time he made the trip to court in a shared rickshaw, and Rs 100 that he paid to the lawyer each time.
“I don’t remember how many times we’ve had to go,” he said. “I lost count.”
In an analysis of 129 first information reports (FIRs) registered between 2016 and 2020 (including 34 pertaining to hunting and allied offences under the WPA), involving 1,414 offences registered by the forest department in 24 circles between 2016 and 2020, the Bhopal-based Criminal Justice and Police Accountability Project (CPA Project) found that 95% of these cases continued to be undecided, including 51% that were in court and 44% cases still at the departmental investigation stage; 2.4%, were closed without further proceedings, while most trials continued four to five years after the arrest.
“We have seen trials go on for as much as 16 years,” said advocate Nikita Sonavane, managing trustee and co-founder of the CPA Project, which works on litigation, research and capacity-building to end the disproportionate targeting of marginalised communities by the criminal justice system. The maximum punishment under the WPA for hunting wildlife is seven years’ imprisonment, with a fine.
In addition to the police FIRs, offences registered by the forest department and eight chargesheets in forest department-registered offences, the CPA Project team also studied 780 arrest records from 38 districts of Madhya Pradesh between 2011 and 2020.
Besides the long pendency of cases in the courts, the study found that disproportionately large numbers of the accused belonged to oppressed caste groups, and police relied on mukhbirs (informants), whose identity usually remained undisclosed, in 86% of the FIRs.
In over 41% of offences registered by the forest department, the method of hunting a protected animal was not mentioned; no recoveries were reported in 51.27% of cases; and in several cases where the hunting method was stated, there was no seizure of a weapon.
The Narrative Of The Criminal Hunter
Sonavane said as lawyers who had worked with members of tribal and forest-dwelling communities facing prosecution under the WPA, they had “seen that it was one of the common ways in which they were criminalised, and predominantly for hunting”.
They undertook the study to see, on a day-to-day basis in wildlife policing, which communities were charged for what kind of hunting offences.
“We wanted to see how this narrative of the hunter is created and what kind of people are even considered to be criminal hunters,” said Sonavane, who is also a member of the Article 14 editorial board.
Speaking at the release of the study report in October, Chief Justice S Muralidhar of the Orissa High Court said the lack of reliable data was a common problem in cases.
Calling the CPA Project’s analysis “incisive”, he said the report was a valuable addition to earlier studies “that have shown that the law disproportionately impacts, adversely, vulnerable populations”.
Although the Scheduled Tribes & Other Traditional Forest Dwellers (Recognition of Forest RIghts) Act, 2006, guaranteed indigenous communities’ traditional rights over forests, these communities remained under the control of the forest department in accessing forests, the study found.
The report found a “covert criminalisation of forest-dependent livelihoods” and large-scale displacement caused due to the demarcation of ‘protected areas’.
Article 14 has reported earlier how pressure from the Project Tiger bureaucracy to shift villages out of core forest areas has made the survival of traditional Adivasi lives and livelihoods increasingly tenuous, even as the union government’s instruction to states to demarcate “critical wildlife habitats” (CWH) within protected areas signals another pan-India round of conservation-induced displacement of tribals.
Scheduled Tribes, Castes Most Vulnerable
Madhya Pradesh has the largest recorded forest area (RFA) among Indian states, as well as large swathes of protected areas. At over 20% or one in every 5, the state also has the highest percentage of tribal population in the country.
According to the study, more than 29% of accused persons (whose caste could be identified) arrested between 2011 and 2020 belonged to an oppressed caste group. Groups including Scheduled Tribes and Scheduled Castes were overrepresented in comparison to their district-wise population.
Among the FIRs that were analysed, accused persons belonging to scheduled castes, scheduled tribes, denotified tribes, other backward classes and other communities that may be marginalised accounted for 66.6% of the 29 hunting-related offences studied. These groups were also a majority of the accused in cases related to sand mining.
Among offences registered by the forest department, nearly 78% of the accused persons (totalling 2,790 across 1,414 offences) belonged to an oppressed caste community.
Sonavane said that the members of denotified tribes—classified as ‘criminal tribes’ or ‘born criminals’ under the Criminal Tribes Act, 1871, until they were denotified in August 1952—who are arrested under the WPA are rendered vulnerable to being booked in other cases and subsequently being seen by courts as habitual offenders.
Arrests Rendered Compulsory By Police
Among the arrests by the police, in 68% of the cases, accused under the WPA were also booked under other laws, including sections of 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 said, “so as to render arrest compulsory.”
The data on FIRs also showed that persons were arrested and sent to custody in 72% of the cases related to hunting, where the offences were bailable, a likely violation of guidelines set in Arnesh Kumar Vs State of Bihar that state arrest is not automatic in cases punishable by less than seven years of imprisonment.
Additionally, offences under WPA are compoundable—a criminal or accused may avoid prosecution by payment of a penalty or fine—unless they occur in a protected area. Of 1,414 cases analysed for the study, compounding was permitted only in 13 cases, less than 1%. (Cases in protected areas were 245.)
The WPA, in contrast to the Indian Evidence Act, 1872, permits confessions made in custody to be presented as evidence, but though the law requires that such a statement be signed by an sub-divisional officer, in practice researchers found them to have been signed by all rungs of forest officials, including range officers. Sonavane said this was true of the chargesheets they analysed too.
Frequent Wild Boar Attacks On Crops
As per the data, the most hunted animals were wild boar (jungli suar), parrot (tota), peacock (mor) and fish (machli), comprising 17.47%, 12.%, 9.26% and 8.26% of the animals hunted respectively.
Almost two-thirds of all the animals hunted in the cases studied found mention in Schedule III or IV of the WPA. The more endangered animals and those at risk of being hunted for wildlife trade are listed in Schedule I or II of the law. While the peacock is listed in Schedule I, the remaining animals are mostly in Schedules III and IV.
A* said farmland in his village, mostly small landholdings of 1-2 acres, is located in close proximity to the forest, causing frequent attacks by wild boars and other wildlife that raids their crops.
“There’s trouble even if we kill wild boars to protect ourselves or our property,” he said. “It’s scary even to go into the forest to collect brushwood now.”
The CPA Project team also conducted a qualitative study through interviews in two districts, Mandla and Balaghat. Mandla is home to the Kanha Tiger Reserve, over four times the size of Mumbai at 2,051 sq km. More than 44% of Mandla and more than 53% of Balaghat are covered by forest.
In both districts, researchers heard from villagers that there was a rising incidence of crop damage caused by the growing population of wild boar that moved around in packs. Interviews with forest officials, lawyers representing the accused, and the accused persons themselves suggested that there were recorded instances of people being injured in wild boar attacks.
The study found that the WPA, which already penalises traditional occupations of indigenous communities, was also applied for activities recognised by the FRA.
While rights over fish and products from local water bodies are recognised under section 3(1)(d) of the FRA, forest department cases people booked under the WPA for fishing, sometimes incorrectly applying section 9 that pertains to hunting, and mostly with additional charges under the Indian Forest Act or other sections of the WPA pertaining to barred entry in a national park or disturbing wildlife habitats.
The report said officials also differed in recounting what activities are permissible within the core and what is permissible in the buffer, where the core area begins, etc.
Livelihoods Lost, Costs Pile Up
“Many men accused in wildlife cases told us they’ve had to take loans or sell belongings to afford just the lawyer fees and court fees,” said Suraksha Lal, an activist for land rights in Mandla.
Unnerved by the cases against acquaintances, villagers are afraid to return to their routine collection of forest produce such as brushwood or mushrooms, he said.
By Suraksha Lal’s estimation, the costs for legal proceedings range from Rs 15,000 to Rs 25,000. “For every peshi (appearance), the accused would have to incur a cost of Rs 100-Rs 200 on the lawyer, in addition to the cost of travel and to the lost wages.“
Among 16 cases for which the study team conducted a qualitative survey including interviews with accused persons, lawyers and investigating officers, most had been pending for four to five years, some for longer.
One case had been underway in court for 16 years in the district court, a case in which a group of men were booked for entering a protected area to collect honey. One of the accused persons has died since.
The study showed that bail pleas were usually rejected by magistrates. “… interviews with lawyers who prosecute as well as defend wildlife crimes show that bail is usually only secured from the high court,” the report said.
In their report titled ‘Criminalisation of Adivasis and the Indian legal system’ launched in April 2022, published by the Indigenous Peoples Rights International (IPRI), Geneva, Supreme Court advocate Shomona Khanna and researchers Astha Saxena, Puja and Khushboo Pareek said people who belong to a community residing inside a forest later declared as a protected area under the WPA would be offenders “by mere residence”.
While permitted grazing or movement of livestock is allowed in a sanctuary, this is prohibited in a national park, for example. “While making these declarations, the state government need not necessarily take into account any livelihood matters that may already exist in those areas,” the report said.
A combination of laws including the Indian Forest Act, 1927, the WPA and associated installations “put a legal ring as it were around forest dwellers which suddenly changes the legality of their status”, rendering even routine activities criminalised, said Justice Muralidhar, speaking at the launch of the CPA Project’s report.
“What you were doing yesterday is today declared illegal and as a forest dweller, you have no way of knowing that,” he said.
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(Kavitha Iyer is a senior editor with Article 14 and the author of ‘Landscapes of Loss’, a book on India’s farm crisis.)