Law making is a dynamic process, it is virus-like in the way it adapts to situations.
If a law can be considered a pencil sketch on a piece of paper, the original Act that makes a law - for instance, the Kerala Land Assignment Act, 1960, that distributed revenue land to landless farmers - is just the first stroke of the pencil.
The rules that are framed on the basis of the Act, the innumerable amendments that came later, the circulars and orders issued on the basis of the original law and the subsequent amendments, and new legislations passed on topics related to the original law are vigorous pencil strokes on the first stroke. In short, the law even ends up looking like a confusing scribble.
This confusion can either mislead officials or offer them a window to do mischief. It is not clear what led to the October 24, 2020, Government Order, which timber smugglers allegedly used as a cover to indiscriminately cut down protected rosewood and teak trees.
Problematic insertion
Former Revenue Minister E Chandrasekharan, under whose charge the order was issued, said the order was so clear that there was no scope for any misinterpretation.
Here is what the sixth, and the most controversial clause of the order issued by the then revenue secretary A Jayathilak says: "It is hereby clearly ordered that farmers need not seek any permission to cut the trees they had grown in the land assigned to them or had sprouted after they took possession of the land and also those, except sandal, they had reserved by paying the tree value at the time of securing the title deed."
The phrase "except sandal", contrary to what the former revenue minister said, is highly problematic. It threw open immense possibilities for misuse.
Royal trees and commoners
To know how, a bit of history will be in order. When the Kerala Land Assignment Rules, 1964, was drawn up, it spoke only about the trees that were already on the 'poramboke' land at the time of assignment. To have rights over such trees, the Rules said the new owner (the assignee) has to pay the 'tree value' and reserve these trees for themselves, for their use.
There were 76 varieties of trees that the assignee could pay and own, and these included coconut, coffee, tea, bamboo, jackfruit tree (plavu), mango tree (mavu), rubber, arecanut, cedar and tamarind (puli). But four 'royal' varieties - teak, rosewood, ebony and sandal - were branded as scheduled trees on which the assignee had no rights whatsoever. These were government property.
Tree felling rights
It is in subsequent amendments and fresh legislations - Kerala Promotion of Tree Growth in Non Forest Areas Act, 2005, Kerala Preservation of Trees Act, 1986, Kerala land Assignment Amendment Rules, 2017 - that farmers were given cutting rights over trees that were planted by them or had sprouted in the land after they took possession. There was overwhelming political consensus in favour of such a farmer-friendly move.
These later additions to law gave farmers right over even 'scheduled' trees, except sandal, that were grown after securing the deed for the land. Meaning, teak, rosewood or ebony grown in the land after gaining possession could be cut down by farmers for personal needs.
But the law was unchanged on one thing: teak, rosewood, ebony and sandal that were standing on the land before possession will be government property.
Seemingly mischievous insertion
It is this aspect of the law that got blurred, deliberately or otherwise, by the phrase "except sandal" in the October 24, 2020, order. Most of all, the wording gave the false impression that the scheduled trees that were standing on the plot at the time of possession could also be reserved by farmers.
The former revenue minister said that the law is clear about the four scheduled trees that were standing on the land before possession: they cannot be paid for and reserved. If so, why couldn't the order do away with the "except sandal" part and merely say "...and also trees they had reserved by paying the tree value at the time of securing the title deed." The 'except sandal' part was not just redundant, but looked mischievous also.
Now, if the revenue authorities were keen on giving extra clarity, they could have expanded the order saying "...and also those, except sandal, teak, rosewood and ebony, they had reserved by paying the tree value at the time of securing the title deed."
Forest officials Onmanorama talked to said timber smugglers used this order to convince small farmers and tribals that it was legal to cut even rosewood and teak trees that were over 100 years old.
