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Insights into Editorial: The Unmaking of the Forest Rights Act
Aimed at protecting the rights of forest dwelling tribal communities the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 promised much. However, over the years its implementation has been tardy and there have been concerted efforts to dilute it.
About Forest Rights Act (FRA):
The legislation, which was passed in December 2006, concerns the rights of forest-dwelling communities to land and other resources, denied to them over decades as a result of the continuance of colonial forest laws in India.
- The Act grants legal recognition to the rights of traditional forest dwelling communities, partially correcting the injustice caused by the forest laws.
Rights under the Act:
- Title rights –e. ownership to land that is being farmed by tribals or forest dwellers subject to a maximum of 4 hectares; ownership is only for land that is actually being cultivated by the concerned family, meaning that no new lands are granted.
- Use rights – to minor forest produce (also including ownership), to grazing areas, to pastoralist routes, etc.
- Relief and development rights – to rehabilitation in case of illegal eviction or forced displacement; and to basic amenities, subject to restrictions for forest protection.
- Forest management rights – to protect forests and wildlife.
Eligibility to get rights under the Act is confined to those who “primarily reside in forests” and who depend on forests and forest land for a livelihood. Further, either the claimant must be a member of the Scheduled Tribes scheduled in that area or must have been residing in the forest for 75 years.
Process of recognition of rights:
The Act provides that the gram sabha, or village assembly, will initially pass a resolution recommending whose rights to which resources should be recognised. This resolution is then screened and approved at the level of the sub-division (or taluka) and subsequently at the district level. The screening committees consist of three government officials (Forest, Revenue and Tribal Welfare departments) and three elected members of the local body at that level. These committees also hear appeals.
Why this law was necessary?
What are called “forests” in Indian law often have nothing to do with actual forests. Under the Indian Forest Act, areas were often declared to be “government forests” without recording who lived in these areas, what land they were using, what uses they made of the forest and so on. 82% of Madhya forest blocks and 40% of Orissa’s reserved forests were never surveyed; similarly 60% of India’s national parks have till today not completed their process of enquiry and settlement of rights. As the Tiger Task Force of the Government of India put it, “in the name of conservation, what has been carried out is a completely illegal and unconstitutional land acquisition programme.” Hence, this was law necessary.
Various factors that have prevented the proper implementation of the FRA since its passage in 2006 include:
- Process of documenting communities’ claims:
The process of documenting communities’ claims under the FRA is intensive — rough maps of community and individual claims are prepared democratically by Gram Sabhas. These are then verified on the ground with annotated evidence, before being submitted to relevant authorities.
The Gram Sabha is treated as a public authority under the FRA, and if the higher authorities under the law reject its claims, substantive reasons have to be provided for doing so. This exhaustive process is why the official diktat to implement the FRA so quickly lacks any understanding about the extent of the task and labour involved.
- Reluctance of the forest bureaucracy to give up control:
Another main factor inhibiting the FRA’s full implementation is the reluctance of the forest bureaucracy to give up control. The forest bureaucracy has misinterpreted the FRA as an instrument to regularise encroachment. This is seen in its emphasis on recognising individual claims while ignoring collective claims — Community Forest Resource (CFR) rights as promised under the FRA — by tribal communities.
To date, the total amount of land where rights have been recognised under the FRA is just 3.13 million hectares, mostly under claims for individual occupancy rights.
- Narrow interpretation of the FRA:
The narrow interpretation of the FRA is also to be blamed. It is against the letter and spirit of the law, which seeks to undo historical injustices and return the forests to community jurisdiction. It also contradicts the estimates for forest area collectively used by tribal and other forest communities that are provided by government agencies themselves.
- Environment Ministry’s moves:
The Environment Ministry’s conduct also causes concern. Entrusted with stewarding our forests, it has instead concentrated great energy on how to hasten their felling (through the forest clearances it awards). In doing this, it appears that it has, among other things, mounted a prolonged effort to see if and how meaningful community participation can be eliminated from the clearance process.
What needs to be done now?
The government can start by recognising the role played in the FRA’s meagre implementation by the forest bureaucracy’s resistance as well as the acute lack of awareness of FRA’s community rights provisions in State administrations and forest communities. In almost all States, the Forest Department has either appropriated or been given effective control over the FRA’s rights recognition process. This has created a situation where the officials controlling the implementation of the law often have the strongest interest in its non-implementation, especially the community forest rights provisions, which dilute or challenge the powers of the forest department.
- If the government is serious about implementing the FRA, it should confront the forest bureaucracy and make it clear that any obstruction on their part is unacceptable. The little progress that has been made in implementation so far has been due to close coordination between tribal departments, district administrations and civil society.
- There is also a clear need to strengthen the nodal tribal departments, provide clear instructions to the State and district administrations, and encourage civil society actors. Without a strong political will, this historical transformation is unlikely to take place.
Many states have a poor record of implementation of the act: Bihar, Jharkhand, Himachal Pradesh, Karnataka, Kerala, Odisha, Telangana, Uttarakhand, Uttar Pradesh and West Bengal have been identified as having lagged behind in implementation of the FRA. The misuse of a law cannot be the reason to dilute it or call for its repeal. Land is a valuable resource for those who live off it and one way of ensuring lesser fragmentation is to approve community forest rights which take a long time for clearance. People are at the centre of protecting forests and conservation and if the FRA is not delivering its promise, it can be blamed squarely on the government’s devious approach and its barely concealed intent to enfeeble the law.
The implementation of the Forest Rights Act, 2006 has been opaque and there is serious lack of awareness about its provisions not only among the beneficiaries but also among the officials in charge of implementing it. Given the complaints from either side, it is time the government reviewed the law and also looked at the objections raised when it was first tabled as a bill.