Category: Human Rights

Categories
Human Rights

Wake up and take stock of the failure to implement the Juvenile Justice Act, 2000

ArleneManoharan_SwagataRaha_ShrutiRamakrishnan_CCLFifteen years since it came into force, the Juvenile Justice (Care and Protection of Children) Act, 2000 is yet to be fully implemented. In 2014, the Justice Verma Committee, which looked into reforms in the criminal justice system, commented on this failure. On

April 17, 2015, in Bachpan Bachao Andolan v. Union of India, the Supreme Court also noted the poor implementation of this law. “To make matter worse, we have been told that even the Central Government has not constituted the Central Advisory Board despite the Act having been in force for the last 15 years. This is a clear indication of a complete lack of sensitivity and the apathy that the Ministry has for children and also a complete disregard for the law enacted by the Parliament. We expect the Ministry to wake up and take stock of the law enacted by the Parliament.”

By 2010, only fourteen states and four Union Territories had Child Welfare Committees and Juvenile Justice Boards set up in all districts. The Parliamentary Standing Committee lamented the “gross failure in the existing juvenile justice system primarily because its provisions, in particular those relating to rehabilitation, vocational training and social reintegration, had not been implemented in letter and spirit”.

In order to address the several petitions that came before them in relation to issues such as the non-establishment of homes and the failure to constitute statutory bodies, various high courts set up committees to monitor implementation. The Supreme Court even set up a one-person committee headed by Justice Madan B. Lokur in August 2013 to ensure the effective implementation of the law.

Reformative scheme of the 2000 Act

The Act provides for a unique multi-disciplinary inquiry into each individual that comes before the Juvenile Justice Board. The Juvenile Justice Board has the power to conduct a comprehensive inquiry to establish guilt, motive, and ascertain the circumstances of the crime.

Social investigation reports will draw from home visits, interviews with teachers, relatives, and experts who have assessed the juvenile. Under the model rules under this Act (“Model Rules”), these reports will form the basis of judicial decisions on bail as well as final orders. Form IV of the Model Rules has to be used for preparing these reports. A closer look at it reveals that the inquiry needs to be a comprehensive one taking into account the child’s past history as well as current personality, character, intelligence, mental health status, economic status, religious views, educational status, social and family circumstances, influences that impact behavior, as well as the circumstances in which the crime was allegedly committed.

The Juvenile Justice Board has to then pass an order drawing from a range of options provided in Section 15, which in their opinion will help reform the child, ensure justice to the victim, and keep the community safe.

The law also demands an individualised approach. While passing such orders, individual care plans have to be prepared for each juvenile.

A juvenile may be housed in a “special home”, which has to mandatorily classify and segregate children, based on age and seriousness of the offence. “Places of safety” will house juveniles who cannot be accommodated along with others in observation homes or special homes. Children who may be mentally ill or addicted to drugs or other psychotropic substances may be transferred to other treatment centres.

JuvenileChainGang1903

No trained staff to implement the 2000 Act

This legal framework provides a robust and comprehensive framework to enable genuine reform and rehabilitation of children and adolescents with any behavioural or developmental challenges, especially those who may have been found to have committed violent crime. Though there is no empirical research on the functioning of these special homes around the country, the fact that there is no special cadre of correctional counselors and forensic social workers, and no specialised behavior modification programmes, says it all.

Moreover, there is no special cadre of probation officers for children, dedicated to this important vocation. The role of the probation officer is crucial in conducting social investigation reports, monitoring and supervising the child, and providing guidance and mentorship.

In our field experience, we have rarely found functionaries who fit the bill when it comes to this challenging role. Naturally, juveniles do not receive the services they are entitled to. The preparation, implementation, and monitoring of individual care plans need to be given the serious attention they deserve.

It is clear that the reformative scheme envisaged in the Act was never even given an opportunity to demonstrate its potential in addressing juvenile crime. There is no functional assessment or probation and counseling services for juveniles and nothing special or scientific about the special homes mandated to provide special correctional services.

Abysmal allocation

From an already inadequate 4.52 per cent of the total budget in the previous budget, child welfare dropped even further in the list of priorities after the Union Budget for 2015-16. Even though children constitute 39 per cent of India’s total population, allocation towards their welfare is just over 3 per cent. In fact, since the JJ Act came into force, “children have never received more than 5 per cent of the total Union Budget allocation”.

Despite these several claims regarding the failure to implement the JJ Act, the Ministry of Women and Child Development has been quick to suggest that the law had failed to address juvenile crime rate. The state needs to own its responsibility for the failure of the juvenile justice system before considering the radical amendments in the Juvenile Justice (Care and Protection) Bill, 2014 will have a far reaching impact on young people and their families.

Swagata Raha, Arlene Manoharan, and Shruthi Ramakrishnan are from the Centre for Child and the Law, NLSIU Bangalore.

Categories
Human Rights

Locking up adolescents who commit heinous crimes will not help anyone

Kalpana_PurushothamanI am a counsellor working with juveniles in conflict with law. Most of them are boys and some have committed crimes like rape and murder. These are crimes that the Juvenile Justice (Care and Protection of Children) Bill, 2014, which was recently passed by the Lok Sabha, considers ‘heinous’ crimes.

Mohan*, a 17-year-old charged with rape, told me about recurring nightmares of a gang rape he had witnessed. He had been the ‘lookout’ outside the door as four “rowdies” raped a middle-aged woman whose husband owed them money. He had desperately wanted to prove them wrong. Asked to clean up after them, he offered the woman a glass of water. Later, she identified him in the line-up.

Mohan was guilty and he should be punished. But should he be punished with imprisonment that will inevitably expose him to brutal violence and sexual abuse and trigger further anger? Will Mohan reform if he is sent to jail where adult convicts and offenders are most likely to groom him for further crime? Are there alternate and developmentally appropriate correctional methods that actually lead to changes in his behavior and enable solace and a sense of justice to the victim?

Mohan repeatedly told me and demonstrated through his behaviour that he was remorseful and willing to do whatever it took to do this. But we do not have such programs for juveniles in India.

Then there was Joseph*, a 17-year-old with floppy hair and sad eyes. He would sit quietly in a corner and burst into tears when I first met him at an observation home where he was being held. He was charged with the rape of Leena*, a 16-year-old Hindu girl. Medical reports had showed that she was a few weeks pregnant. Joseph had been apprehended while trying to board an inter-state bus with her, two days after she had gone missing from her house. After working with Joseph, a different story emerged.

Joseph had known Leena for the two years and they were in love with each other. A year previously, Leena’s father, who had seen them together on Joseph’s bike, had warned Joseph to stay away from his daughter. A few months later, Leena told Joseph that she was seeing another boy and broke up with him.

They had not met each other since then till three days before his apprehension when Leena turned up at Joseph’s house and told him that she had decided to commit suicide as she was being harassed by her parents. She also told him that she was pregnant by her boyfriend (who was related to her father’s family) and that her parents would kill her if they came to know of it. She asked for his help in aborting the child. Joseph stole money from his elder sister and decided to take her to a nearby city, where he was apprehended by the police. Leena’s parents filed a case of rape and kidnapping against Joseph.

In many of the cases of ‘rape’ against juveniles, there has either been consensual sex between the accused and the ‘victim’, or a false case has been filed against the boy (usually by the girl’s parents), especially where the boy and the girl belong to different castes, religions, or strata of society.

16-year-old Sathish* was charged with killing his father in a fit of rage. A chronic alcoholic, his father used to regularly beat his mother, his younger sister, and him. Sathish, despite being academically bright, dropped out of school to work at a local hotel washing dishes. His father’s bouts of drinking and violence continued unabated. One day, Sathish had enough. When his father attacked him, he hit back and slashed his father’s throat with a razor. He was found guilty of murdering his father. Although she had no role in it, his mother was also sent to jail as an accomplice.

Unlike other juveniles who simply languish in the system without intervention or rehabilitative services, Sathish received intensive counseling from me and psychiatric treatment from the Department of Child and Adolescent Psychiatry at the National Institutte of Mental Health and Neuro Sciences during his time in the juvenile justice system. With help from an NGO willing to take him in and support his education, he went on to write his 10th Standard exams. Later, he enrolled in an evening college and is slowly but surely trying to reclaim his life. His mother and sister are also receiving counselling and support in piecing their lives together.

While these are examples of some juveniles charged with having committed heinous offences and subsequently found guilty by the Juvenile Justice Board, not every juvenile charged with a heinous offence is actually found guilty. If the JJ Bill 2014 were to become law however, the Juvenile Justice Board would have to make a very arbitrary assessment of the child’s ‘mental and ‘physical capacity to commit the crime’ and decide whether they should be tried under the juvenile justice system or the adult criminal justice system. At present, there is simply no way psychologists or psychiatrists or other experts can make a scientifically sound determination of whether the crime was committed in an ‘adult frame of mind’ or a ‘childish frame of mind’.

Crime and the juvenile mind

Juveniles are certainly capable of committing heinous crimes like rape or murder. What they are often incapable of however, is to resist the peer pressure to indulge in risky behaviour that creates or leads to such situations. Research by neuroscientists and psychologists show that adolescents – especially between the ages of 16 and 18, are highly susceptible to peer influences, have poor impulse control, and their decision-making abilities often fail them in high pressure situations. This is because the part of the brain called the pre-frontal cortex, which is responsible for controlling these aspects – namely impulse control, behaviour regulation, and future orientation – is still in the process of developing.

Also, in my experience, juveniles who commit heinous crimes are very often victims of violence, neglect, emotional deprivation, sexual abuse, broken families, poverty, substance abuse and so on. All of these factors are known to influence and impede healthy brain development. While they do not make their actions right or take away the pain and damage caused to the victims and their families, it provides a certain perspective to understand why and how adolescents who should be in school or college end up committing rape or murder.

Almost every juvenile that I have worked with has expressed remorse and sadness for their actions when they feel safe to do so in a therapeutic environment. Many of them have often spoken of a deep desire to make amends to their victims and their families. A 17-year old charged with murder wanted to give his monthly earnings to the family of his victim as he felt he had deprived the family of an earning member.

My experience has been that juveniles who commit these heinous crimes do not get off lightly. They are traumatised and haunted by their actions and the pain of their victims. Depression, post-traumatic stress, nightmares, psycho-somatic disorders and a host of other mental health problems continue to dog them for years. They are cut off from their families, have to give up their schooling, and are removed from all that they hold dear. To a young person, that is often the harshest punishment one can give. Besides, the conditions at the reformatory institutions – whether Observation Homes, Special Homes, or Places of Safety – are not exactly idyllic. There is nothing ‘special’ about special homes and all these are just euphemisms for prison or prison-like conditions. Physical violence, neglect, sexual abuse and substance abuse are usually rampant. The over-worked, ill-trained and poorly rewarded staff at these institutions are not oriented to care giving or working professionally in a correctional setting for children and adolescents.

Transferring adolescents between the ages of 16 and 18 years to the adult criminal justice system and incarcerating them in adult prisons will only lead to a situation where these youngsters will come out of jail a few years later – thoroughly groomed and trained as career criminals. Instead, investing in strengthening the existing juvenile justice system – where they still have a chance to reform themselves and helping them take responsibility for their actions, teaching them to make amends to their victims and to society in appropriate ways – is the way to help prevent further crime and actually bring about some measure of healing and justice for all concerned. Restorative justice has the potential to bring together the juvenile, the victim, and society in a meaningful way. Some countries are already trying it, with varying and encouraging degrees of success.

Juvenile justice is a complex issue and there are no easy answers that will satisfy all. There is a need to balance the rights and interests of the juvenile, the victim and the society. Debate, discussion and engagement with young adolescents at risk and understanding and addressing their concerns before they commit a crime would be a positive step forward. Shutting them away in prisons afterwards will not help anyone.

Kalpana Purushothaman is a senior Counsellor at the Centre for Child and the Law, National Law School of India University.

*Names and some case details have been changed to protect identity

Categories
Human Rights

New juvenile justice law cleared by the Lok Sabha violates basic tenets of the Child Rights Convention

ArleneManoharan_SwagataRaha_ShrutiRamakrishnan_CCLOn May 7, in spite of doubts about its compatibility with the Constitution of India and the United Nations Convention on the Rights of the Child (“UNCRC”), the Lok Sabha passed the Juvenile Justice (Care and Protection of Children) Bill, 2014 (“JJ Bill”). While the Bill has some positive provisions, it allows children between the ages of 16 and 18 years, who are alleged to have committed heinous offences, to be transferred to an adult court where they will be tried and sentenced as adults. Heinous offences are those punishable with more than seven years imprisonment.

India’s U-turn

India had ratified the UNCRC in 1992. In February 2000, the UN Committee on the Rights of the Child (“CRC”) questioned India about the discriminatory nature of the definition of the term ‘juvenile’ under the Juvenile Justice Act, 1986 and recommended that it be amended “to ensure that boys under 18 years are covered by the definition of juvenile, as girls already are”. The legislative intention behind the Juvenile Justice (Care and Protection of Children) Act, 2000, evident from its Statement of Objects and Reasons, was to ensure compliance with children’s right to equality and non-discrimination under the UNCRC. “The justice system as available for adults is not considered suitable for being applied to a juvenile or the child or any one on their behalf including the police, voluntary organizations, social workers, or parents and guardians, throughout the country.” Fifteen years later, the very same Minister of Women and Child Development has defended the treatment of children as adults with a view to deter juvenile crime.

UNCRC does not allow children to be tried and sentenced as adults

Article 2 of the UNCRC requires all state parties to abide by the principle of non-discrimination and ensure that all children in conflict with the law are treated equally. It follows that the disadvantageous treatment of children based on their age and the nature of the offence they allegedly commit would constitute a violation of Article 2.

Through the introduction of a transfer system and a preliminary assessment procedure to determine the capacity of a child to commit the crime prior to the establishment of guilt, the JJ Bill flouts some of the most basic tenets of the UNCRC. The CRC has categorically condemned the treatment of children as adults. It has recommended that:

“… those States parties which limit the applicability of their juvenile justice rules to children under the age of 16 (or lower) years, or which allow by way of exception that 16 or 17-year-old children are treated as adult criminals, change their laws with a view to achieving a non-discriminatory full application of their juvenile justice rules to all persons under the age of 18 years.”

The transfer provisions grossly violate Article 2 of the UNCRC and incorporates punitive goals that have no place in the juvenile justice system envisaged under the UNCRC.

Concerns about public safety cannot trump children’s rights

The age of one of the offenders in the gruesome December 2012 rape in Delhi, was one of the focal points in the protests that followed.

The age of one of the offenders in the gruesome December 2012 rape in Delhi, was one of the focal points in the protests that followed.

The JJ Bill wrongly posits the issue of heinous offences by children as a “conflict” between public safety, justice, and children’s rights. It falsely claims to be in the interest of the safety of victims. The CRC has expressly tackled concerns about public safety in connection with juveniles who commit heinous crimes and emphasised the principles that must underpin the State’s response. “In cases of severe offences by children, measures proportionate to the circumstances of the offender and to the gravity of the offence may be considered, including considerations of the need of public safety and sanctions. In the case of children, such considerations must always be outweighed by the need to safeguard the well-being and the best interests of the child and to promote his/her reintegration.”

This perceived conflict between concerns about public safety and the best interests of juveniles had arisen earlier in the context of trials of children under anti-terror laws. In 2004, in its Concluding Observations on India, the CRC had expressed concern about the prosecution of children by special courts under the Prevention of Terrorism Act, 2002 in contravention of Articles 37, 40, and 39 of the UNCRC. In response, India amended the JJ Act in 2006 and introduced Section 1(4), which unequivocally clarified that the juvenile justice law would override all other laws with regard to detention, prosecution, penalty, or sentence and apply to all cases of children in conflict with the law without any exception. The JJ Bill therefore, represents a radical shift in policy within a span of nine years, without any evidence to support it.

Life imprisonment with the possibility of parole offends the right to life, survival and development

The CRC has strongly recommended that State Parties “abolish all forms of life imprisonment for offences committed by persons under the age of 18.”Under Clause 22 of the Bill, life imprisonment with the possibility of release can indeed be imposed on children above 16 years. This goes against the recent normative developments at the international level.

Re-integration objective undermined

According to the Article 40(1) of the UNCRC, all children in conflict with the law must be treated in a manner that is consistent with their sense of dignity and worth and reinforces their respect for human rights and fundamental freedoms. The treatment must ensure promotion of their reintegration into society. The JJ Bill, 2014 ignores the aims of reintegration and restoration of a child in conflict with the law, by providing for a highly arbitrary determination of their capability to make ‘meaningful contributions’ to society when they reach the age of 21 years. A failure to pass this test would result in an automatic transfer to an adult jail. Even if a child is found to have undergone reformative changes at the end of this assessment process however, she or he will incur the disqualifications attached to the conviction, making it impossible to secure gainful employment or stand for elections. In effect, reintegration would be impossible.

Transfer to an adult jail violates Article 37(c)

The UNCRC expressly requires that all children deprived of their liberty be separated from adults. The CRC has clarified that this separation is not merely technical and “does not mean that a child placed in a facility for children has to be moved to a facility for adults immediately after he/she turns 18.” On June 13, 2014, the CRC’s Concluding Observation on India’s juvenile justice system was that it must ensure “age-appropriate separation of children in Observation and Special Homes and that children in conflict with the law are not detained together with children in need of protection or with adults and that detention conditions are compliant with international standards, including with regard to access to education and health services”.

In gross disregard of Article 37(c) and the Concluding Observation on it, the JJ Bill takes an untenable position on the separation of children from adults, by proposing that the former be transferred to adult prisons if they fail an assessment of their reformation when they complete 21 years of age (Clause20(3)). Such a transfer is incompatible with the clear prohibition on the detention of children with adults under the UNCRC.

Violation of the presumption of innocence under Article 40(2)(b)(i)

Clause 16(1) of the Bill requires the Juvenile Justice Board to assess, along with the circumstances in which the child has allegedly committed the heinous offence, whether he or she had the physical and mental capacity to commit it. This assessment, the basis for transferring a child to the Children’s Court, which is a designated Sessions Court, operates on the assumption that the child has indeed committed the offence and thus violates the cardinal principle of presumption of innocence under Article 40(2)(b)(i). Such arbitrary assessments will invariably prejudice the trial before the Children’s Court.

It is evident from the CRC’s General Comment and Concluding Observations that all other considerations however legitimate they may be, will have to be overridden by what is in the best interests of the child. Concerns about public safety or the gravity of offence cannot be the basis for reenactment of a law that pledges to protect and promote the rights of children by disposing matters in their best interest. In its 264th Report, the Department-Related Parliamentary Standing Committee on Human Resource Development on The Juvenile Justice (Care and Protection of Children) Bill, 2014 also noted that clauses 15(3), 16(1), 19(3), 20(1), 20(3), 21, and 22 of the Bill constituted distinct violations of the provisions of the UNCRC, 1989 (para 3.29) and recommended their deletion. However, all these provisions have been retained in the Bill passed by the Lok Sabha, which ironically cites the UNCRC in its Preamble.

Swagata Raha, Arlene Manoharan, and Shruthi Ramakrishnan are from the Centre for Child and the Law, NLSIU Bangalore.

Categories
Human Rights

How England, Scotland, Australia, and the United States removed the marital exception to rape

PraptiPatelOn April 29,the Union Minister of State for Home Affairs announced in response to a question in Parliament that the government had no plans to criminalise marital rape. Illiteracy, poverty, societal customs, religious beliefs, and the general mindset of the society which treats marriage as a sacrament were put forward as reasons to not bring in any such amendment.

England and Scotland

MatthewHale

Matthew Hale (1609-1676)

The common law on the matter of the rape of a wife by her husband followed the rule that a wife became her husband’s physical and sexual property as part of the marriage contract. A man was therefore exempt from prosecution for the rape of a woman to whom he is married to. The infamous statement of the seventeenth century judge Matthew Hale, that “A husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract” has been followed in common law jurisdictions across the world.

The protection from prosecution given to spousal rape was also recognised in Scottish criminal law. The Scottish High Court of Justiciary however, modified this view in the 1989 case of S. v. H.M. Advocate and removed the marital immunity from rape. The same view was taken in England by Appellate Committee of the House of Lords in R. v. R in 1991.

Australia

In 1976, with the Criminal Law Consolidation Act Amendment Act 1976, South Australia became the first jurisdiction in the common law world to abolish the presumption that a wife gave the kind of consent highlighted by Matthew Hale and enabled the conviction of men for the rape of their wives. The prosecution however, had to be backed by evidence of threats or violence. Even this requirement was done away with in 1992.

USA

Historically, marital rape was statutorily excluded from prosecution in the United States because rape was defined as the forced sexual intercourse by a male with a female who was ‘not his wife’. Nebraska became the first state to abolish the exemption from prosecution in the mid-1970s and by 1993, marital rape was a crime in all 50 states.

There were however, vast differences in how each state has viewed and prosecuted the crime. While 17 states treated marital rape and other forms of rape the same, the others had different rules such as shorter penalties or exclusions because of lack of evidence of violence. As of 2005 however, South Carolina remains the only US state where proof of excessive force or violence of a “high and aggravated nature” is required to establish an offence of marital rape.

Categories
Human Rights

A company came to buy land for compensatory afforestation. Here’s how one woman learnt to respond.

CommunitiesAndLegalAction_KanchiKohli“I know the Divisional Forest Officer of my area well. I will speak to him and get back to you”, Kavita said to the company representative. “I cannot understand why have you come 200 kilometers away from where you are building a dam to tell me that you want to buy land to plant trees in my village. If you are cutting trees for the construction in one area should you not be planting them right there?”

Kavita had recently been elected the Sarpanch of the Village Panchayat (elected representative of the village local help government). The man she was addressing represented a contracting company building a 2000 MW hydropower project. He tried to explain, “You see, the problem is that we have got the first level permission to start constructing our dam, but we can’t do much till we fulfill this painful condition of compensatory afforestation. The local forest and revenue offices tell us that they can’t give us land in the same place, so we are having to move around all over the place looking for land.”

“So”, Kavita responded, “you want the land that people of this village own to compensate for the lakhs of trees you are cutting or the acres of land you are using. The 50 hectares you want is not going to be enough for this.” He was also speaking to some other villages to negotiate similar deals. But Kavita was not fully convinced and she did not want to engage with the man till she had more information. She sought some more time and told him that she would respond to him only after she had fully understood what it meant and all that it implied.

The next morning, Kavita decided to visit the Divisional Forest Officer (“DFO”) of her area. She had not sought a prior appointment and had taken the risk of not finding him at his seat. Unfortunately, she caught him just as he was leaving for a surprise inspection to a forest nearby. Since he was in a rush, he asked her to come back in the evening.

When he returned, he found Kavita waiting for him right where he had left her. She had spent the day talking to forest rangers over cups of tea and trying to understand the reasons why other citizens were visiting the forest department’s office. Some were there for seeking compensation damages to crops caused by wildlife, others were trying to get offences written off, and some others had come to enquire about new proposals for forest diversion in the area.

Photograph by Kanchi Kohli.

Photograph by Kanchi Kohli.

But Kavita’s mind kept drifting. Why did the company want to buy  land in her village to plant trees to compensate for damage or loss that was taking place really far away from where she lived? After hearing her questions, the DFO smiled and assured her that he might have most of the answers about what this meant, legally and administratively.

Diversion under the Forest Conservation Act

He first explained to her that since 1980, every state government has had to take prior permission from the Ministry of Environment, Forests and Climate Change (“MoEFCC”) before diverting forest land for non-forest use, de-reserve a forest, or allow for the felling of trees. This happened with the promulgation of the Forest Conservation Act. “For the sake of our conversation”, he said, “lets call all these instances as diversions of forest land.”

Now, when a DFO like him, who is also called the Deputy Conservator of Forests in some places, prepares a proposal for the diversion of forest land on behalf of a user agency, it is also his job to add the details of the compensatory afforestation scheme. This has to be done in accordance with the format provided in Part II of the Forest Conservation Rules, 2003. He decided to start by explaining how compensatory afforestation really worked.

Compensating for the change of land use

Each time forest land is diverted, the change of land use has to be compensated for. The requirement for compensatory afforestation is considered one of the most important conditions stipulated when forests are ‘diverted’ for non-forest use, or when the felling of trees needs to be done, or when forests are to be de-reserved. It is part of almost every Stage I approval granted by the MoEFCC, be it for a dam, mine, industry, road, railway line, or even a rubber plantation. Only when compensatory afforestation and other conditions are complied with is Stage II approval is granted by the ministry.  In most cases compliance means identification of the land in preparation for the afforestation scheme. Only after all this is done can an order issued by the state government granting the permission for diversion, dereservation, or felling of trees, under Section 2 of the Forest Conservation Act, 1980, come into effect.

The current legal regime requires compensatory aforestation to be carried out over an equivalent area of non-forest land. For example, for 200 hectares ‘lost’ to a non-forest purpose, another 200 hectares of non-forest land has to be afforested. If non-forest land is not available, compensatory afforestation needs to be carried out on double the amount of degraded forest land, which is being used for a non-forest purpose. “There are some exceptions which are part of the Compensatory Afforestation Guidelines. But this thumb rule is what you should remember”, said the DFO.

Usually, the DFO alerted Kavita, an effort is made to identify land which is contiguous to or in the proximity of an existing reserved forest or protected forest. This is to enable the Forest Department officials to to effectively manage the “newly planted area”. Looking for a distant site for afforestation outside the district or state should be done only if land in that particular state or district is not available. There are clear guidelines issued by the MoEFCC in relation to this requirement and user agencies and forest departments need to follow them.

“Perhaps the neighbouring district does not have non forest land or degraded forest land to give for compensatory afforestation. It appears like the user agency, which is a dam construction company in this case, is looking to get this condition ticked off so that they can move the government offices for the next steps of the approval. They might want to buy your land and hand it over for compensatory afforestation”, he explained. Perhaps all the degraded forest land has already been earmaked for compensatory afforestation related to other instances of non-forest use, so even that is not available.

He looked at the Range Forest Officer (“RFO”) working under him. Was buying land and then handing it over to the government for compensatory afforestation becoming a trend with new industries and builders, he wondered aloud. The RFO returned a thoughtful glance. He had heard about some enquiries from villagers who farmed and used forest land for specific produce but he was not sure.

Poor quality of afforestation

A compensatory afforestation site in Kutch, Gujarat. Photograph by Kanchi Kohli.

A compensatory afforestation site in Kutch, Gujarat. Photograph by Kanchi Kohli.

The conversation turned to a larger question as the DFO asked for some chai. What might appear to be a simple administrative practice, the DFO told Kavita, had become one of the important policy issues of our time. While we have approved diversions, the practice of compensatory afforestation has hugely suffered. Land is often unavailable and where it is available, the quality of the afforestation has been dismal. At the same time several user agencies had not paid up all that they had to, for carrying out the compensatory afforestation. He told her not to quote him on what he was saying and Kavita agreed.

He asked the RFO to bring out the report of the Comptroller and Auditor General (“CAG”) on compensatory afforestation. Since 1998, several audited reports had pointed to the lacunae in the utilisation of the funds for carrying out compensatory afforestation. The latest, a report from 2013, brought out fresh figures.

Kavita was baffled. “Why has no one taken this to court?”, she asked. Well there had been some discussion in court, the RFO said. The Supreme Court’s resolution of the issue, informed by the recommendations of its Central Empowered Committee, was to direct the setting up of a Compensatory Afforestation Fund Management and Planning Authority (“CAMPA”) in 2002. It was finally notified in 2004 but actually began to function only in 2009 and that too as an ad hoc authority.

Following this, state governments now submit plans to the CAMPA and get the money released for compensatory afforestation as well as other conservation activities related to the payment of an amount of money, that is called the NPV. He was deliberately not telling her more about NPV, he said, as it would confuse her. There was news that not all the money for compensatory afforestation and NPV had been paid up and there remained huge problems with the quality of the plantations and that there had also been mis-ultilisation of funds. In September 2014, he said, the Union Minister for Environment, Forests, and Climate Change even said that his ministry was keen on releasing the Rs. 33,000 crore accumulated in the CAMPA to state governments.

While all this seemed like too much information, Kavita understood one thing – even if she and other villagers decide to sell their her land with the good intention of recreating a forest, such a forest might never set the light of day. Maybe she was better off doing her own farming and ensuring that some part of her land adjoining forests remained uncultivated so that there could be some natural regeneration there.

Leaving the forest department’s office, she was ready to face the representative of the dam building company. “Go looking for land elsewhere, sir”, she smiled and thought to herself, “ours is not available to fulfill your administrative formality.”

(Kanchi Kohli (kanchikohli@gmail.com) is an independent researcher and writer.)