The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

• Title rights – ownership to land that is being farmed by tribal 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 rehabilitate 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.

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.

• 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.

• 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.

However, the Xaxa Committee, which was constituted in 2013 to study the conditions of tribals and suggest policy initiatives for their upliftment, reported that the Government circumvents the Constitutional safeguards, and exploits tribals by notifying rural areas or potential scheduled areas as ‘urban areas’ to keep them out of the scope of protection.

The Xaxa Committee report adds that:

• The Government acquires forest or tribal land for “public purpose” but later transfers it to private companies at throwaway prices.
• The Government signs MoUs with companies for the land, making Government officials “dealers and negotiators” of tribal land, forgetting the concept of “neutrality of State,” and even actively violating the rights of the tribals.
• Those protesting many of these violations of land use and welfare laws, are arrested, resulting in the law being perverted to oppress the already marginalised.

It is a law enacted by Government of India to cover the “Scheduled Areas”, which are not covered in the 73rd Constitutional amendment. This particular act extends the provisions of Part IX to the Scheduled Areas of the country. PESA brought powers further down to the Gram Sabha level. The Gram Sabha in the Panchayat Act were entrusted with wide ranging powers starting from consultation on land acquisition to that of ownership over minor forest produces and leasing of minor minerals.

Under the PESA, the Gram Sabha or Panchayats at appropriate level shall have the following powers:

• To be consulted on matters of land acquisition and resettlement.
• Grant prospecting license for mining lease for minor minerals and concessions for such activities.
• Planning and management of minor water bodies.
• The power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant.
• The ownership of minor forest produces.
• The power to prevent alienation of land and to restore any unlawfully alienated land of a scheduled tribe.
• The power to manage village markets.
• The power to exercise control over money lending to scheduled tribes.

• Dilution of role of Tribal Advisory Councils: PESA comes under the Fifth Schedule, which mandates Tribal Advisory Councils to oversee tribal affairs and also gives extrajudicial, extra constitutional powers to the Governors of each State to intervene in matters where they see tribal autonomy being compromised.
• However, the councils, with the Chief Minister as their chairperson, have evolved into a non-assertive institution amid the machinations of upper-class politics, and its representatives hardly speak against the State governments’ policies.
• The Governors, in order to have friendly relations with the Chief Ministers, have desisted from getting involved in tribal matters. Tribal activists have constantly complained that there is not even a single instance where the Governors have responded to their petitions for interventions in threatening crises, such as deepening clashes over land, mining or police excesses.
• Lack of coordination at Centre: Even if one were to expect proactive intervention from the Centre, PESA would get entangled in bureaucratic shackles. Two different ministries, the Ministry of Panchayati Raj and the Ministry of Tribal Affairs, have an overlapping influence on the implementation of PESA and they function almost without any coordination.
• Lack of operationalization: In most of the state the enabling rules are not in place more than eight years after the adoption of the Act suggests that the state governments are reluctant to operationalize the PESA mandate.
• Ignoring the spirit of PESA: The state legislations have omitted some of the fundamental principles without which the spirit of PESA can never be realised. For instance, the premise in PESA that state legislations on Panchayats shall be in consonance with customary laws and among other things traditional management practices of community resources is ignored by most of the state laws.
• Ambiguous definitions: No legal definition of the terms like minor water bodies, minor minerals etc. exist in the statute books. The states in their conformity legislations have also not defined the term leading to ambiguity and scope of interpretation by the bureaucracy.

In recent years, many reports ‘The Report of Expert Group of the Planning Commission on Development Challenges in Extremist Affected Areas’ (2008), ‘The Sixth Report of the Second Administrative Reforms Commission’ (2007), ‘The Balchandra Mungekar Committee Report’ (2009), etc. have clearly underlined the dismal situation of the implementation of PESA.

Therefore, there is an urgent need to opt for an effective device whereby maximum people can be informed, made aware and motivated to come forward for the proper implementation and execution of PESA. There is an urgent need to break the culture of silence among tribal and to strive for capacity building, sensitization and orientation to improve the tribal self-rule scenario.