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Chapter I INTRODUCTION

History of the Forest Rights Act It is widely accepted that the relationship between the state, forests and people changed with the entry of the British. One view holds that the colonial state, viewing forests as a source of revenue, saw itself competing with local communities for forest resources, and insulated forests from their pressures. A countervailing view says that forests were also reserved due to ideal concerns over drought and its relationship to deforestation. Either way, tribals lost their traditional rights over forests and land.1 Not much changed after independence. If anything, Indian forest laws were even more stringent in denying communities their traditional rights over forests.2 This appropriation of rights continued even after the focus of forest management changed from revenue generation to conservation after the National Forest Policy of 1988. At that time, India began following a model of conservation based on biocentric principles that were by nature exclusionary. More recently, as mining conflicts in Orissa and elsewhere show, forest-dweller rights are being appropriated by the state to accommodate large industrial projects.3 As the state asserted control over the countrys forests, a countervailing resistance built up among forest dwellers. In the 1960s, there was a massive

Guha, Ramachandra. 1990. An Early Environmental Debate: The Making of the 1878 Forest Act. The Indian Economic and Social History Review. 27, 1: 65-84 2 Chopra, Kanchan. 1995. Forest and Other Sectors: Critical Role of Government Policy. The Economic & Political Weekly. 24 June 1995. 3 M. Rajshekhar. 2012. The Act that Disagreed with its Preamble: The Drafting of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, Unpublished paper, Available at: http://mrajshekhar.wordpress.com/on-the-drafting-of-the-forest-rights-act/ and at: http://independent.academia.edu/rajshekharmaddipatla).

uprising of tribals in Bastar. In the 1970s, there was a similar movement in Bihar. In the same decade, tribals in Maharashtra organised to defend their land and forest rights.4 From time to time, this resistance has resulted in the state legalising what it terms encroachments. Initially, these legalisations were carried out by the state governments. That changed in 1980 when the Centre passed the Forest Conservation Act (FCA) and took away the rights of state governments to use forestland for non-forest use. In this process, however, while halting the destruction of forests, the Act trapped several million forest dwellers as illegal occupants in their own land, and left them vulnerable to rent seeking, brutal evictions and displacement without any entitlement to compensation or rehabilitation.5Countervailing pressures again built up. In 1990, when VP Singh was PM, new guidelines on regularisation emerged. Based on a framework recommended by the Commissioner for SCs and STs for resolving disputes related to forestland between tribal people and the state,the MoEF issued six circulars on September 18, 1990. The first focused on regularising pre-1980 encroachments on forest lands. The second on resolution of disputed claims over forest land arising out of incomplete or faulty forest settlements. The third recognised pattas/leases/grants issued by the revenue department for land also recorded as forest land. The fifth proposed to convert an estimated 2,500 to 3,000 forest villages and old habitations to revenue villages.6 As a solution, however, the guidelines fell short. The MoEF required claimants to present original documents proving possession and ownership from a period
4

Guha, Ramachandra. 2007. Adivasis, Naxalites and Indian Democracy. Economic & Political Weekly, 11 August, 2007. 5 Ibid. 6 Circular No. 13-1/90-FP of Government of India, Ministry of Environment & Forests, Department of Environment, Forests & Wildlife dated 18.9. 90 addressed to the Secretaries of Forest Departments of all States/Union Territories.

before 1980. In most cases, such evidence didnt exist.7 Further, the guidelines applied only if the state government had made a formal decision on conferring such rights before 1980. Such decisions had not been taken in many states. Then, there was the requirement of land and money for compensatory afforestation to compensate for the forestland being dereserved. This proved hard for state governments to meet.8 Eventually, only one state, Maharashtra, took meaningful action on these circulars. On the 10th of October, 2002, it passed an order expanding the evidence claimants could submit in support of their claims.9 Even as the Centre seemed to be softening its stance (as suggested by the 1990 Guidelines and the enactment of the Panchayat Extension to Scheduled Areas Act in 1996), the courts adopted a hardline conservationist position. Under the Godhavarman PIL (202/95), the Supreme Court extended application of the FCA to all lands conforming to the dictionary definition of forest, irrespective of ownership. Consequently, state forest departments began identifying forestlike lands, including lands that remained as forests only on official documents, to bring them under their control. There was little discussion about the legal processes to be followed, the livelihood impacts on people dependent on such lands, or how their legal rights under other existing laws or constitutional provisions were to be dealt with.10 Further interlocutory applications (IAs) led to interim court orders with drastic impacts on the rights and livelihoods of forest dwellers. Besides staying regularisation of even eligible pre-1980 encroachments and halting dereservation of forest land or protected areas, the court also stayed the removal of dead, diseased, dying or wind fallen trees, drift wood and grasses,
7

Dreze, Jean. 2005. Tribal Evictions from Forest Land. Discussion paper, NAC. 2009. Available at <http://pmindia.gov.in/nac/concept%20papers/evictions.pdf>, last accessed on 23rd March 2014. 8 Ghosh, Prodipto. 2005. The Rights of Local People over Forest Resources: An Approach Paper. Unpublished. 9 Government of Maharashtra (2002): Government decision number Sankirn 2002/372/J-1. 10 Supra note 25.

etc from all national parks and wildlife sanctuaries. The MoEF interpreted this to mean no rights could be exercised in PAs and banned the collection and sale of all non-timber forest produce (NTFP) from them.11 This was followed by the MoEFs circular of May 3, 2002 asking all states and UTs to evict all forest encroachers within five months. The ensuing spate of violent evictions across the country led to an uproar. Eventually, the ministry was compelled to issue a clarification in October that year that the 1990 circulars remained valid and that not all forest dwellers were encroachers.12 Despite this, by the MoEFs own admission in Parliament on 16th September, 2004, between May 2002 and August 2004, evictions were carried out from 1,52,000 hectares of forest land.13 Finally, in February 2004, just before Parliamentary elections, the MoEF was ordered by the Vajpayee government to issue two new circulars: one titled Regularisation of the rights of the tribals on the forest lands14 which extended the cut-off date for regularisation for tribals to December 1993 (instead of October 1980 under the 1st 1990 circular) and the other titled Stepping up of process for conversion of forest villages into revenue villages.15 These were stayed by the Supreme Court in response to an IA filed by the Amicus that these were in violation of court orders staying both regularisation and de-reservation of forest land. This, then, was the contested relationship between the state, forests and tribals in post-independence India. As the courts and the MoEF asserted control over

11 12

Supra note 1. Campaign for Survival & Dignity. Endangered Symbiosis: Evictions and Indias Forest Communities, the report of the Jan Sunvai, July 19-20, 2003. 13 Supra note 25. 14 Ibid. 15 Ibid.

forests, opposing pressures were again building up. One outcome was the FRA.16 The Statement of Objects and Reasons of the Forest Rights Act describes it as a law intended to correct the "historical injustice" done to forest dwellers by the failure to recognise their rights. The issue of forest rights in India is a major concern by any measure. It affects forested landscapes that cover over 23% of the country, and the livelihoods of perhaps 200 million citizens, as many as 20% of the population in a democratic polity. Forest landscape dwelling populations, located mainly in a tribal belt across central and eastern areas of the country, are amongst the poorest of the poor. Their poverty reflects a history of institutionalised disenfranchisement; having their customary forest land expropriated, and use rights negated by feudal states, by the colonial state and subsequently by the independent Indian government. The issue of forest rights has been highly contentious for at least a century and a half, and has intensified in recent years. This paper analyses the historical origins of forest rights deprivation and contemporary processes through which local people are seeking to restore their forest rights. Although the FRA appears to be a fundamental reform, indeed perhaps a new critical juncture in the relationship between forest peoples and the state - the depth and durability of this reform remains uncertain, due primarily to the path dependent behaviour of the powerful existing state forest bureaucracies, which remain a major obstacle to realising the pro-poor potentials. In India, the indigenous peoples are predominantly composed of the large and diverse tribal populations scattered across several States. In Indian languages,

16

Ibid.

there is no exact equivalent for the tribe, but close synonymous are v anavasis (Forest dwellers) or adivasi (Original inhabitants).17 Indigenous forest people use their land in many different ways for fishing, hunting, shifting agriculture, the gathering of wild forest products and other activities. For them, the forest is the very basis of survival and its resources have to be harvested in a sustainable manner. But when traditional life styles change and, for example, industrial logging or mining takes place, over use of resources can lead to conflict.18

Chapter II BACKGROUND OF FOREST RIGHT IN INDIA


Since the time immemorial, forest has been playing a central role in the life and culture of the Indian tribes. Speaking empirically, forests and tribal have been observed to be inseparable from each other.
19

Forest had contributed

significantly as well as specifically to the techno-economic conditions of the tribals. A tribal is usually born and brought up in the forest env ironment and as such since childhood days, a forest is inculcated into his inner mind. Thus from pre historic time onwards forest has been remaining as a store house of resources as well as feeding ground in the tribal life.20 Ancient Period:-

17

Mitra Kunsuk, Gupta Radhika, Indigenous Peoples Forest Tenure in India, available at <www.adb.org>, last visited on 20th March 2014. 18 The relationship between Indigenous people and Forests, available at < www.unep.org>, last visited on 20th March 2014. 19 Das Jagannath And Pati R. N., Tribal and Indigenous people of India problems & perspective (2002), APH Publishing Corporation, New Delhi. 20 Patil, D. Yuvraj, Forest Rights of indigenous people in India, available at <http://ssrn.com/abstract=2066295>, last visited on 23rd March 2014.

The Environmental policy in pre independence era is principally reflected in the resource conservation, particularly, the forest conservation and the wild life. In ancient India protection & clining up of environment was the essence of Vedic culture. In Hindu theology forests, trees, & wildlife protection held a place of special reverence. 21 The Vedas Upanishadas, Puranas & other scriptures of Hindu religion give a detailed description of trees, pants & Wild life & their importance to the community.22 The Rig- Veda highlights the potential of nature in controlling the climate, increasing fertility & improving human life. Atharva Veda considers trees abode of various Gods & Goddesses. Yajur Veda emphasizes that relationship with nature & animals should not be that of dominion & subjugation but of mutual respect & kindness. Hinduism believes that every tree is abode of god & goddesses for examples Pipal associated with Vishnu, Tulasi is worshiped by Hindus.23 Policy during ancient India taught us to respect nature & take cognizance in case of prohibition of Environmental protection rules. Abuse & exploitation of nature for immediate gains was considered unjust, irreligious & against environmental ethics under Hindu culture. Medieval Period During this period political instability results in ecological loss result of which Environment conservation didnt achieve much attention. To Moghal means forest meant no more than wooded lands where they could hunt & properties which yielded some revenue. There was no restriction on cutting of trees except Royal trees which enjoyed patronage from being cut except upon a fee. 24
21 22

Ibid. Thakur Kailas, Environment Protection: Law & Policy in India , (2003) Deep & Deep Publications Pvt. Ltd. 23 Supra nore 8. 24 Supra note 5.

Besides that Moghal emperors contributed in forest conservation by establishment of gardens, green parks, Central & provincial headquarters, Public places. Additionally, the religious policy of Akbar based on principle of complete tolerance also reflects concern for protection for birds & beasts in so much so as endeavors were taken during his reign to stop their unnecessary killing.25

British Period:During the British period, forests were rapidly razed as revenue-eared from the timber supplies and for maximizing land revenue by putting the cleared tracts into cultivation.26 The growing ship building industries in England in the 18s and the expansion of the railway network in India further spurred the demand for timber, leading to rapid deforestation. A striking thing of this policy has been that the peoples rights in forests & wastes continued to be exercised unrestrictedly.27 In 1806- process of control over forest started. Commission was appointed to enquire into the availability of teak in Malabar & Travancore by way of conservator of forests. This move failed to conserve forest as the appointed conservator plundered the forest wealth instead of conserving it. Resulting of which , the post of so called conservator of forests was abolished in 1823. In 19th Century- beginning of forest management in India with some administrative steps; formulation of forest policy & legislations to implement the policy decisions. In 1864 appointed 1st Inspector General of forests. The

25 26

Supra note 8. Gadgil & Guha, This Fissured Land: AN Ecological History of India, 118 (1993) 27 Supra note 8.

immediate task of forest department under the supervision of Inspector General was that to demarcation of reserves, protection of forest from fire, exploration off resources. The Forest Policy in 1865:- the first step of at asserting the State monopoly right over the forests. This facilitates the acquisition of forests by State. This policy revised in 1878 which ensured that the State could demarcate tracts of forests, needed especially for railway purposes & retain enough flexibility over the remaining extent of forest land to revise its policy from time to time. 28 The Forest Policy 1894:- the policy had the following objectives29: Promoting the general well-being of the people in the country; Preserving climatic & physical conditions in the country; Fulfilling the needs of the people Classification of forest as forest for climate, forest for commercial purpose, minor forests, forest for pasture.

Chapter III

28

Divan Shyam & Rosencranz Armin, Environmental Law & Policy in India, Cases, Materials & Statutes , (4th Ed 2005), Oxford University Press. 29 Ibid.

PREVIOUS ACTS
Efforts to establish community rights over forest resources began much before the FRA was enacted in 2006. Some significant forest-related initiatives undertaken since independence that impacted on these efforts are mentioned below30: 1. Ownership of Minor Forest Produce (1976) The National Forest Policy of 1952 faced strong criticism in the 1960s because it was seen as a vehicle to gift community rights as subsidies to commercial enterprises in the private sector while depriving traditional forest-dwellers of these rights, including rights to Minor Forest Produce. As a follow up to this policy, the Government of Madhya Pradesh (which then included Chhattisgarh) took the initiative of recognising forest dwellers as owners of MFPs instead of workers in forest landscapes. While there were some uncertainties about the definition of MFPs, the initiative was one of the most progressive steps in the direction of recognising ownership of forest resources by forest dwellers.31 2. Forest Conservation Act (1980) The passing of the Forest Conservation Act (FCA) in 1980 put an abrupt end to the initiatives of the Madhya Pradesh government, negating its efforts to provide rights to forest resources to the forest dwelling community. The FCA was the culmination of a process that had started after independence when the government began converting forest land into revenue land for development purposes. Prior to independence, several forest areas were under
30

Final report submitted to UNDP by SAMARTHAN - Centre for Development Support, Recognition of Community Rights under FOREST RIGHTS ACT in MADHYA PRADESH AND CHHATTISGARH: CHALLENGES AND WAY FORWARD(2011), available at < http://www.undp.org/content/dam/india/docs/DG/recognition-of-community-rights-under-forest-rights-act-inmadhya-pradesh-and-chhattisgarh-challenges-and-way-forward.pdf> , last visited on 22nd March 2014. 31 Ibid.

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the jurisdiction of the erstwhile princely states, many of which had no legal framework for sustainable management of forest resources, which led to their rapid depletion across the country. In order to address this problem, forests were removed from the jurisdiction of the states and included in the central list, with the FCA eventually being passed in 1980 to conserve forest resources.32 3. National Forest Policy (1988) Since the 1952 policy did not protect the interests of the tribal community that traditionally depended on forest resources for its livelihood, a new forest policy was formulated in 1988 to include elements of community ownership of resources. The National Forest Policy of 1988 recognised for the first time the relation between forest resources and tribal communities.33 4. Guidelines on replenishing forest resources (1990) In 1987-88, the Commissioner SC & ST sent a report to the Government of India on conflicts arising between forest dwellers and the forest department. The report analysed the reasons and issues underlying these conflicts. On September 18, 1990, the government issued directives for addressing these conflicts and formulated guidelines for replenishing forest resources. Peoples participation was a key element in these initiatives.34 Guidelines were also issued to convert all forest villages to revenue villages subject to two conditions. First, there should be no violation of the FCA and second, the government should make adequate provisions for compensation and re-forestation before changing the status of the villages. The directions and guidelines were expected to help address and amicably settle the conflicts between the forest department and forest dwellers. Also, peoples
32 33

Ibid. Ibid. 34 Ibid.

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participation was expected to ensure the strengthening of the forest economy. Unfortunately the initiative, which saw several joint forest management (JFM) programmes being taken up by the forest department and village communities, met with limited success because it did not materialise into a large-scale effort and also because the jointness in JFM was missing. One pertinent reason could be the set notions about forest conservation in the forest department and its attitudinal problems with traditional forest dwellers.35

5. Panchayat Extension to Scheduled Areas (PESA) Act (1996) The Government of India enacted the Panchayats Extension to Scheduled Areas Act (PESA) on the recommendations of the Bhuria Committee to ensure that traditional governance systems in scheduled areas were conserved. The PESA recognised traditional rights of tribals to community resources (land, water and forests) and decentralised existing approaches to forest governance by bringing the Gram Sabha at the centrestage for managing MFPs and social forestry. Some of its key provisions spell out the extent to which the Gram Sabha can exercise control over community resources and MFPs.

35

Ibid.

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Chapter IV EVALUATION OF THE TEXT OF FRA


The Act contains a Preamble followed by seven chapters containing 14 sections. The Preamble articulates the ambitious sweep of the Acts aims. Subsequent sections provide definitions of key terms, the rights to be conferred under the Act, the conditions attached to the rights, empowerment of right holders and their Gram Sabhas (village assemblies) for conservation, and the authorities and procedures for the recognition of rights. Section 11 provides that the nodal ministry responsible for implementing the Act shall be the Ministry of Tribal Affairs (and not the Ministry of Environment and Forests (MoEF)). Other sections deal with miscellaneous matters, including the relationship of the FRA to the application of other laws.
13

The Preamble of the Act states: to recognise and vest the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations but whose rights could not be recorded; to provide for a framework for recording the forest rights so vested and the nature of evidence required for such recognition and vesting in respect of forest land. These statements represent a milestone in Indian legislative history. Parliament has not only acknowledged the historical injustice done to Indias forest dwelling communities due to non-recognition of their rights on ancestral lands, but has also effectively overturned the inherited colonial framework of the forest bureaucracys exclusive territorial control and management of enclosed forested landscapes. By linking rights with the authority for conservation and sustainable use and viewing this as a means to strengthen the conservation regime while ensuring livelihood and food security, the FRA lays the foundation for democratic decentralization of forest governance in the country.36

Rights to be recognised under the Act


At the outset, it is useful to point out that four of the listed rights are based on guidelines issued by the Ministry of Environment and Forests (MoEF) on September 18, 1990. These were based in turn on a framework for the resolution of disputes related to forest land between tribal people and the State
36

Sarin, Madhu with Springate-Baginski, Oliver, Indias Forest Rights Act -The anatomy of a necessary but not sufficient institutional reform, Discussion Paper Series Number 45 (July 2010) IPPG Discussion Papers, available at <www.ippg.org.uk>, last visited on 20th March 2014.

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recommended by the Commissioner for Scheduled Castes and Scheduled Tribes in his 29th report (1987-89) to the President of India (GoI, 1990).37 The Commissioner had observed widespread disquiet in the central Indian tribal-forest belt caused by major irregularities in the declaration of vast areas of tribal lands as state forests without proper enquiry into their rights as required by law. He had also come across serious anomalies in official land records such as vast areas of the same land being recorded as both revenue and forest lands.38 While revenue departments had allocated pattas (land titles), leases or grants over this land to poor cultivators, forest departments treated these as illegal encroachments. Whereas guideline FP(2) dealt with recognition of rights not recognised by forest settlements, FP(3) required granting legal title to those allocated land by revenue departments despite the land also being recorded as forest land. However, only the first of these guidelines, for regularizing supposed encroachments on forest land prior to enactment of the Forest Conservation Act, 1980, had been partially implemented, the rest being left ignored.39 The key section of the Act listing the rights which may be recognised is Section 3: Forest Rights. The listed rights are to be recognised on all categories of forest land, including in wildlife sanctuaries and national parks. 3. (1) For the purposes of this Act, the following rights which are secure individual or community tenure or both, shall be the forest rights of forest dwelling Scheduled Tribes and other traditional forest dwellers on all forest lands, namely:-

37 38

Ibid. Ibid. 39 Ibid.

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a. right to hold and live in the forest land under the individual or common occupation for habitation or for self cultivation for livelihood by a member or members of a forest dwelling Scheduled Tribe or other traditional forest dwellers; This provides for both individual or community tenure to those in occupation of forest land, and is equivalent to MoEFs FP(1) guideline of 1990 permitting regularisation of encroachment on forest land prior to October 1980 i.e. before the Forest Conservation Act, 1980 came into force. Under the Forest Rights Act, this cut-off date has been moved forward to December 13, 2005 in the case of eligible Scheduled Tribes (STs) whereas Other Traditional Forest Dwellers (OTFDs) now have to prove continuous occupation of the land for 3 generations of 25 years each. The wording of this right, however, does not clearly specify conversion of such forest land into a non-forest category. The longer term implications of the land remaining categorised as forest land, on which forest departments normally have exclusive jurisdiction, remain unclear. This has to be read with Section 4.6 of the Act, which limits the maximum area under occupation over which this right may be claimed to 4 ha. 3(1)b. community rights such as nistar 40 , by whatever name called, including those used in erstwhile Princely States, Zamindari or such intermediary regimes; This aims to restore customary usufruct rights over adjoining forests which were often legally recognised prior to independence. However, these were arbitrarily either extinguished or diluted through declaration of such common lands as state forests during the merging of Princely States in the Indian Union and abolition of intermediary regimes after independence. In areas where nistari

40

The term nistar connotes usufruct rights for meeting domestic needs.

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forests are clearly demarcated and recorded, such forests can also be claimed as community forest resource (CFR) under section 3(1)i. 3(1)c. right of ownership, access to collect, use, and dispose of minor forest produce which has been traditionally collected within or outside village boundaries; This needs to be read with the definition of Minor Forest Produce in section 2(i) below: 2(i) minor forest produce includes all non -timber forest produce of plant origin including bamboo, brush wood, stumps, cane, tussar, cocoons, honey, wax, lac, tendu or kendu leaves, medicinal plants and herbs, roots, tubers, and the like; Minor Forest Produce (MFP) is a prejudicial term meaning non timber forest products (NTFPs) which were considered minor in relation to timber by the colonial Indian Forest Act, 1927 despite their critical importance for forest dwellers livelihoods. Ownership of MFPs/NTFPs was earlier vested in the Gram Sabhas (village assemblies) in Schedule V41 areas by the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (commonly known as PESA). The forest departments of most states, however, refused to recognise such ownership rights on the dubious grounds that PESA had not defined or specified MFPs (and, remarkably, their interpretation has been able to prevail). The Ministry of Environment and Forests also argued that the rights vested by PESA did not extend to reserve and protected forests outside administrative village boundaries on the ground that the jurisdiction of the Gram Sabha was limited to the area within such boundaries. The Ministry of Tribal Affairs

41

Schedule V of the Indian Constitution provides for special administration of notified tribal majority areas under which laws considered detrimental to tribal interests can be withheld from them although this has never been done since independence.

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challenged this interpretation pointing out that PESA was applicable to the entire Schedule V areas, including the reserve forests within them, but to no avail. Both these lacunae have been addressed in the FRA by including a clear definition of MFPs which includes commercially valuable tendu leaves as well as cane and bamboo traditionally collected from within or outside village boundaries. 3(1)d. other community rights of uses or entitlements such as fish and other products of water bodies, grazing (both settled or transhumant) and traditional seasonal resource access of nomadic or pastoralist communities; In addition to securing rights over water bodies and their produce, this restores rights of seasonal use by nomadic and pastoral communities which were largely extinguished through classification of multi-functional pasture and forested landscapes as uni-functional state forests.42 3(1)e. rights, including community tenures of habitat and habitation for primitive tribal groups and pre- agricultural communities; Section 2(h) provides the following definition of habitat: 2(h)habitat includes the area comprising the customary habitat and such other in reserved forests and protected forests of Primitive Tribal Groups and pre-agricultural communities and other forest dwelling Scheduled Tribes; This right is specifically included for tribal communities classified as primitive tribal groups (PTGs) by the Government of India, who retain many traits of semi-nomadic hunter-gatherers or who continue practicing shifting cultivation over larger forested landscapes. PTGs are the most vulnerable and marginalised
42

Supra note 47.

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even amongst tribal communities, and their gaining community tenures over their customary habitats could provide them significant protection against usurpation of their resource rights by powerful private interests as well as the state.43 3(1)f. rights in or over disputed lands under any nomenclature in any State where claims are disputed; This is based on MoEFs FP(2) guideline of September 18, 1990 and is meant to enable people to reclaim their rights over lands disputed between them and forest departments arising out of faulty or non-existent forest settlements. This is particularly relevant to forested tribal areas in central and eastern India, which were declared deemed state forests after Independence without following the due process of enquiring into pre-existing rights. This can include both individual and communal claims over customary lands without any limit over the claimable area. The notified Rules, however, have not clarified this and the wording of this right does not make the link with disputed claims arising out of forest settlements clear.44 3(1)g. rights for conversion of Pattas or leases or grants issued by any local authority or any State Government on forest lands to titles; This is based on MoEFs FP(3) guideline of September 18, 1990 and is meant to enable people granted pattas (titles), leases or grants by the revenue department, but which are not recognised by the forest department due to the same land also being classified as forest land in poorly compiled official land records, to claim secure legal titles over such lands. In the states of Madhya Pradesh and Chhattisgarh alone, an estimated one million such pattas or leases have been issued primarily to poor Scheduled Tribe and Scheduled Caste households with

43 44

Ibid. Ibid.

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the land area disputed between the two departments estimated to be 1.24 million hectares.45There are similar problems in many other states such as Maharashtra, Rajasthan, Andhra Pradesh, Orissa and West Bengal. Any form of titles granted even by pre-independence rulers but not legally recognised after independence can also be converted into legal title under this clause. The maximum 4 ha restriction does not apply to such claims as the area for which existing documents are held is to be converted into legal title irrespective of size. 3(1)h. rights of settlement and conversion of all forest villages, old habitation, unsurveyed villages and other villages in forests, whether recorded, notified, or not, into revenue villages; This has to be read with the definition of forest village given in section 2(f): 2(f) forest villages means the settlements which have been established inside the forests by the forest department of any State Government for forestry operations or which were converted into forest villages through the forest reservation process and includes forest settlement villages, fixed demand holdings, all types of taungya settlements, by whatever name called, for such villages and includes lands for cultivation and other uses, permitted by the Government; This section, based on FP(5) of the aforementioned MoEFs 1990 guidelines, enables residents of all forest villages as defined above, many created by the forest departments themselves in the past to ensure availability of bonded labour for forestry operations, to get their villages/settlements converted into revenue villages. At present, over 60 years after Independence, residents of forest villages and other settlements and unsurveyed villages in forests remain deprived of access to most development programmes due to the land on which these are located continuing to be recorded as forest. Whereas officially there
45

Supra note 39.

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are an estimated 2500 to 3000 Forest Villages, unofficial estimates suggest their number to be over 10,000. As no agency other than forest departments can undertake any development work on forest land, most of these settlements remain outside the jurisdiction of any local government, and their residents in some states cannot obtain even domicile certificates (as only the revenue department can issue these, but it does not have jurisdiction over forest land) or even voting rights. Due to their residents lacking any legal rights over the land, they are treated like non-citizens ever vulnerable to eviction or displacement without entitlement to compensation or rehabilitation.46 3(1)i. right to protect, regenerate, or conserve or manage any community forest resource, which they have been traditionally protecting and conserving for sustainable use; This needs to be read with the definition of community forest resource in section 2(a): 2(a) community forest resource means customary common forest land within the traditional or customary boundaries of the village or seasonal use of landscape in the case of pastoral communities, including reserved forests, protected forests and protected areas such as Sanctuaries and National Parks to which the community had traditional access This is amongst the most powerful and significant rights for re-commoning the enclosures and restoring community controlled democratic forest governance within customary village boundaries. In the undivided state of Madhya Pradesh alone, about 1 million hectares of common lands with well recorded community forest and other rights, which were declared state forests after independence without following the due legal process47, could be reclaimed under this clause.
46 47

Supra note 47. Garg, A., 2005, Orange Areas, Examining the Origin and Status , Advocacy Perspective: Working Paper Series No. 21, National Centre for Advocacy Studies, Pune.

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The first two cases of the recognition of community forest rights in the country are over such well recorded community forests in Maharashtra state. 3(1)j. rights which are recognised under any State law or laws of any Autonomous District Council or Autonomous Regional Council or which are accepted as rights of tribals under any traditional or customary law of concerned tribes of any State; This is particularly relevant for the north-eastern Indian states to protect their already recognised customary rights under state or local laws. This clause also protects rights of STs in Schedule V areas where existing state laws bar alienation of any land in such areas to non-tribals.48 3(1)k. right of access to biodiversity and community right to intellectual property and traditional knowledge related to biodiversity and cultural diversity; This was included to secure the rights of forest dwelling communities over their rich indigenous knowledge of biodiversity. However the subsequent Rules for implementation of the Act have not provided any clarity about how these may be claimed or protected, a very complex matter. 3(1)l. any other traditional right customarily enjoyed by the forest dwelling Scheduled Tribes or other traditional forest dwellers, as the case may be, which are not mentioned in clauses (a) to (k) but excluding the traditional right of hunting or trapping or extracting a part of the body of any species of wild animal; This provision provides space for claiming any traditional right not specifically listed such as rights over sacred areas, right to practice shifting cultivation, and so on. The first draft of the law had specifically provided for recognising the
48

Supra note 47.

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rights of shifting cultivators over their individual or communal lands used for practicing shifting cultivation but was removed as the dominant view in the government persists in considering shifting cultivation to be an environmentally destructive practice (even though rotational forest clearance for cultivation in principle is more benign for biodiversity conservation than settled agriculture (which permanently destroys forests) and the Forest Departments own management practices, and generally smaller in scale).49 3(1)m. right to in situ rehabilitation including alternative land in cases where the Scheduled Tribes and other traditional forest dwellers have been illegally evicted or displaced from forest land of any description without receiving their legal entitlement or rehabilitation prior to the 13th of December 2005. This right is a response to the massive and disproportionate displacement of STs and OTFDs for development projects in the past without rehabilitation due to their rights not having been recognised at the time of displacement. This enables those who have been illegally evicted or displaced from forest land to reclaim their rights over it or to claim rehabilitation on alternative land. The wording leaves it unclear however whether the right involves restitution of the lost land or being compensated with alternative land. Furthermore the Rules also do not clarify which agency will be responsible for providing alternative land where restitution is not feasible due to the land being submerged or brought under other use.50 4.(8) The forest rights recognized and vested under this Act shall include the right of land to forest dwelling Scheduled Tribes and other traditional forest dwellers who can establish that they were displaced from their dwelling and cultivation without land compensation due to State
49 50

Ibid. Ibid.

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development interventions, and where the land has not been used for the purpose for which it was acquired within five years of the said acquisition. Although provided in the next chapter of the Act, this section also enables those displaced by the state without land compensation to reclaim their land if it has not been used for the required purpose within 5 years of acquisition. The contradiction in this provision is that where the land has been used for the specified purpose within 5 years, the claimant is not entitled to any recompense.51

VESTING OF FOREST RIGHTS AND RELATED MATTERS


This chapter of the Act lays down the conditions attached to the recognition and vesting of rights under the Act. That the recognition of rights under the Act supersedes all existing laws is clarified in the first clause of this chapter; 4. (1) Notwithstanding anything contained in any other law for the time being in force, and subject to the provisions of this Act, the Central Government hereby recognises and vests forest rights in - ....STs .... and OTFDs... The recognition of rights is subject to the following conditions: That the forest land over which rights are claimed had been under occupation of the claimants before the 13th day of December, 2005.52 That the rights shall be heritable but not alienable or transferrable and shall be registered jointly in the name of both spouses in case of married persons and in the name of the single head in the case of households headed by single persons.53
51 52

Ibid. Section 4(3). 53 Section 4(4).

24

That no potential claimant shall be evicted or removed from forest land under their occupation till the recognition and verification procedure is complete.54 That the forest rights recognised under sub-section 3(1)a shall be restricted to the area under actual occupation and shall in no case exceed an area of four hectares.55 That the recognition of rights will not require central government clearance under the Forest Conservation Act, 1980 or the payment of net present value or compensatory afforestation for the diversion of forest land. This is a major relief for the claimants of rights and the only major provision in the Act clearly providing for the complementary adaption of an existing law and Court orders. The chapter also provides for modification of recognised rights in Critical Wildlife Habitats (CWH) identified through a transparent and consultative process within protected areas, and the conditions under which relocation from such CWHs may be undertaken. This is discussed separately later in the paper.

Duties versus empowerment


Section 5 of the Act embodies a major institutional reform by changing the existing balance of power between the forest bureaucracy and right holding communities. It statutorily empowers holders of forest rights and their Gram Sabhas to protect wildlife, forests and biodiversity as well as their habitats from destructive practices affecting their cultural and natural heritage: 5. The holders of any forest right, Gram Sabha and village level institutions in areas where there are holders of any forest right under this Act are empowered to54 55

Section 4(5). Section 4(6).

25

(a.) protect the wild life, forest and biodiversity; (b.) ensure that adjoining catchments area, water sources and other ecological sensitive areas are adequately protected; (c.) ensure that the habitat of forest dwelling Scheduled Tribes and other traditional forest dwellers is preserved from any form of destructive practices affecting their cultural and natural heritage; (d.) ensure that the decisions taken in the Gram Sabha to regulate access to community forest resources and stop any activity which adversely affects the wild animals, forest and the biodiversity are complied with; By binding right holders to complying with collectively taken decisions in the Gram Sabha for regulating access to community forest resources, this section devolves rule making authority over village forest commons from the forest department to the village assembly. Here it is interesting to note that during the drafting of the Act, there was strong disagreement over whether the rights recognised under the law should be tied to the right holders duties related to conservation. Based on strong pressure from the conservationist lobby, an earlier draft of the law made the right holders duty bound to protect forests, wildlife and biodiversity and divesting them of their rights if they committed an offence a second time. Those supporting the law argued that a historical law belatedly recognising rights should not provide for taking them away again. Endorsing this view, and arguing that the Constitution makes it every citizens duty to protect the environment and that there was no justification for linking the rights of only forest dwellers to such duties, the Joint Parliamentary Committee which reviewed the law initially tabled in Parliament, substituted the term duties with empowerment of right holders. The marginal heading for Section 5 still says duties of right holders as an oversight during final editing whereas the main body of the final law empowers them to conserve
26

their forests. Another dilution which took place during finalisation of the draft law was that the Gram Sabhas powers to penalise offenders with fines was deleted, thereby making the procedure for exercising these powers somewhat ambiguous.56

AUTHORITIES AND PROCEDURES FOR VESTING OF FOREST RIGHTS This chapter specifies the authorities and procedures for the vesting of rights. Essentially, three authorities are specified for the purpose, these are: 1. Gram Sabha (village assembly); 2. Sub-Divisional Level Committee (SDLC): and 3. District Level Committee (DLC). A State Level Monitoring committee (SLMC) is charged with monitoring the process of recognition of rights. 6.(1) The Gram Sabha shall be the authority to initiate the process for determining the nature and extent of individual or community forest rights or both.......... This has to be read with Section 2(g) which states Gram Sabha means a village assembly, which shall consist of all adult members of a village ...... with full and unrestricted participation of women; And also with Section 2(p) which defines 4 different types of villages whose Gram Sabha has to be the initiating authority: (i) As defined in PESA comprising of a hamlet or a group of hamlets in Schedule V areas;

56

Supra note 47.

27

(ii) As defined in any state law relating to Panchayats in non-Schedule V areas; (iii) forest villages, old habitations/settlements or unsurveyed villages and (iv) the traditional village in case of states where there are no Panchayats. The village Gram Sabha is thus the authority to initiate the process of inviting, verifying and consolidating claims for rights and preparing a map showing the area of each recommended claim. This is a key although diluted provision of the Act designed to provide a democratic, accessible and transparent forum for claiming rights instead of the normal vesting of such authority in inaccessible and unaccountable officials17. However, for the Gram Sabha to perform its envisaged role, it must not be too large or heterogeneous because of which the definition of the village whose Gram Sabha is the designated authority is critical. A resolution of the Gram Sabha approving the verified claims is then to be forwarded to the next authority at the Sub-Divisional level for further processing.57 The Sub-Divisional Level Committee (SDLC) is the next authority responsible for preparing the records of forest rights based on examining the Gram Sabha resolutions. The SDLC is to forward these to the District Level Committee (DLC) which is the authority for taking a final and binding decision on the claims for rights. The Act also provides for persons aggrieved by the decision of the Gram Sabha or the Sub-Divisional Level Committee to petition the next level committee (SDLC or DLC) within 60 days of a decision. No such petition can be disposed of against the aggrieved person without giving them a reasonable opportunity to be heard.

57

Ibid.

28

Finally, each state government is to constitute a State Level Monitoring Committee (SLMC) to monitor the process of recognition and vesting of forest rights and report to the nodal GoI ministry. The Sub-Divisional Level Committee, the District Level Committee and the State Level Monitoring Committee are to consist of officers of state Revenue, Forest and Tribal Welfare departments and three members of the Panchayati Raj Institutions at the corresponding levels.

The Relationship of the FRA with other laws.


The issue of the relationship of the FRA with existing laws is crucial; for determining the scope of its applicability, as the parallel continuation of existing but contradictory laws and policies may threaten the efficacy of the Act. 58 However Section 13 of the Act states unambiguously: Save as otherwise provided in this Act and the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996, the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Although rights are to be recognised notwithstanding any other law for the time being in force under section 4(1), and section 13 reiterates this by stating save as otherwise provided in this Act and the provisions of PESA, the provision that this Act shall be in addition to and not in derogation of any other law in force has created ambiguity and left space for divergent interpretations. Although the law makes it clear that rights must also be recognised in all wildlife sanctuaries and national parks, it does not clarify how the provisions of other existing forest and wildlife conservation laws may be applicable to the
58

Supra note 47.

29

exercising of the recognised rights in them other than with respect to the subsequent modification of recognised rights in identified critical wildlife habitats within protected areas. While it remains to be seen how the exercise of rights after they are recognised may be affected by other overlapping laws, the parallel ongoing implementation of those laws is creating rights deprivations in new areas. For example, under the requirement for compensatory afforestation (CA) in lieu of diversion of forest land for non-forest uses, MoEF has issued guidelines that where CA is undertaken on an equivalent area of non-forest land, that land must be notified as a protected or reserved forest and mutated in the name of the forest department.59 Through this process, large areas of common lands classified as revenue wastelands or even community lands in north eastern states are being notified as state forests without following the process of enquiring into and recognising the pre-existing rights of their existing users. Thus while the FRA is attempting to address deprivations of rights in the past, new deprivations are being affected. Similarly, huge areas are being declared protected through the non-democratic process provided for under the Wildlife Protection Act (WLPA). This has been particularly so with the notification of all existing tiger reserves as inviolate critical tiger habitats from which all those living in such areas need to be relocated, without following the consultative process laid down both in the FRA and the 2006 amendment to the WLPA. Simultaneously, forest departments are continuing to prepare forest working plans as if the FRA does not exist. This will lead to conflict with the management plans developed by Gram Sabhas for the areas recognised as community forest resources under the FRA.60

Two major categories of rights.


59 60

Ibid. Ibid.

30

Rights to be recognised under the Act essentially fall into 2 categories: rights over land and rights over forests or forest produce. The rights over land may be claimed individually, or by groups or entire communities. Land rights to be recognised under the FRA differ from the aforementioned 1990 guidelines in two major respects. Firstly, whereas the 1990 guidelines did not differentiate between ST and non-ST claimants, the FRA strongly discriminates in favour of eligible ST claimants. Secondly, whereas the 1990 guidelines did not impose any limit on the area over which rights could be recognised, provided documentary evidence could be shown of occupation since before October 1980, the FRA restricts the maximum area over which rights may be recognised on the basis of only land occupation to 4 hectares. The major addition to the claimable rights over forest land by the FRA has been to recognize the rights of those who can prove that they have been illegally displaced from their lands. In practice, most State governments are implementing the FRA as if it only provides for the right to obtaining title over a maximum of 4 ha under occupation. There is little awareness among both villagers and government officials about the other rights which can be claimed over forest land under the FRA. Community forest rights (CFRs) Community forest rights, on the other hand, represent the addition of a totally new category of rights which may be claimed under the FRA. These include restitution of customary usufruct rights over forests, rights to produce of water bodies; grazing rights (both for settled and nomadic communities); rights to community tenures over habitat for PTGs; ownership rights over NTFPs and rights over community forest resources. These not only enable the claimants to seek restitution of their usufruct community forest rights arbitrarily withdrawn
31

during the declaration of a wide diversity of common lands as state forests, but also statutorily empower village Gram Sabhas to protect, conserve and manage community forests for sustainable use. This implies a major institutional reform in the countrys system of forest governance by creating space for democratic decentralization of forest management.61 Initially, most state governments totally ignored the community forest rights claimable under the Act. With growing protests and pressure from grassroots movements, these are now beginning to receive more attention. Forest Departments, however, have shown considerable resistance to permitting recognition of the community forest resource (CFR) right as it challenges their exclusive territorial jurisdiction and control over forests. It remains unclear how much more successful the FRA will be in the recognition of this right than the previous PESA legislation which has remained unimplemented. A major difference with the FRA is that it has removed the ambiguities which PESA suffered from and, at least in many pockets, the communities which participated in the struggle for enactment of the FRA are more assertive in demanding recognition of their community forest rights. In some areas, such as north West Bengal and Tamil Nadu, the villagers have demarcated their community forest boundaries and started asserting this right and the powers vested under section 5 on the strength of the Act having come into force, even before the formal procedures for the recognition of the right have been completed.62 Devolution of power to the Gram Sabhas and equity within them are the two elements that can improve the well-being of the forest dependant poor and restore dignity in their lives. How equitable and democratic Gram Sabha based community forest management regimes will be remains unclear. Neither the Act, nor the Rules, say anything about ensuring that the voices of the most
61 62

Ibid. Ibid.

32

marginalised sections and women within Gram Sabhas shall be heard during the framing of collective management rules and that the differentiated needs and rights of different sections of the community will be protected. The distribution of benefits within villages will undoubtedly be affected by local power dynamics. The issue of pre-existing non-statutory joint forest management (JFM) committees constituted and controlled by forest departments managing forests is particularly contentious. The concerned Gram Sabhas can now claim statutory rights to protect, conserve and manage JFM forests as their community forest resource for sustainable use. In principle, in such cases, the Gram Sabha should automatically replace the JFM Committee. The secretaries of the tribal welfare departments of both Gujarat and Orissa have already issued orders indicating this change. The large number of self-initiated forest protection groups in States like Orissa no longer need to accept JFM as the only available means of gaining official legitimacy. Yet implementation remains dependent on the villagers being aware that they can claim this right and the state government ensuring that it is recognised when claimed. This is most likely to happen in areas where people still have strong association with and livelihood dependence on customary forest land, are already engaged in self-initiated CFM and are aware and organised.63 A problem being faced in areas where JFMCs already exist and villagers are claiming their CFR rights is that customary boundaries of CFRs cut across the areas of different JFM groups. This is because of the ad hoc manner in which the forest departments have been allocating forest land for JFM. In some areas in Orissa, conflict between existing JFMCs fearing loss of their turf has

63

Ibid.

33

surfaced due to the villagers claiming CFR rights over a part or the whole of that area.64 The biggest emerging threat to statutory community forest management is from forest departments and the MoEF whose policy pronouncements have failed to acknowledge the replacement of JFM by CFM under the FRA. If the forest bureaucracy can have its way, it would clearly like to subsume CFR management within its JFM framework. In many areas this is bound to lead to conflict as organised communities will now fight to protect their hard won statutory rights.

Non Timber Forest Products (NTFPs) (called Minor Forest Produce in the Act) Recognition of the right to own, collect and dispose clearly defined MFPs should supersede many state-level NTFP monopoly control and marketing arrangements which assume the state to be their owner. For example, the state should no longer have the right to charge royalties on NTFPs like tendu leaves and bamboo which are widely managed as state monopolies. In Orissa, for instance, the state charges a royalty of between Rs.8000 to 12,000 per tonne for tendu leaf, (far higher incidentally than the Rs. 30 per tonne charged for bauxite)65. The draft rules prepared by MoTAs Technical Support Group had said clearly that royalty could no longer be charged by the government on such NTFPs. However, the finally notified Rules are silent on the matter. The ambiguity this has created has resulted in most state monopolies continuing as before. This is partly also because few rights over NTFPs have been recognised till now. Once they are, the right holders are likely to demand changes.

64 65

Ibid. Ibid.

34

Womens NTFP cooperatives in Orissa have already started demanding the right to collect, process and market tendu leaves.66 However, NTFP collectors will still need government support in the market. Perhaps instead of a monopoly, the state could encourage competitive purchasing to push up price while offering a minimum support price. Structures in AP, West Bengal, Karnataka and other states, will similarly require overhauling or replacement by totally new institutional arrangements. Many existing state laws, rules and regulations governing the collection, transport, processing and marketing NTFPs will also need to be changed to enable exercising of this right. There has been total official silence on this matter at the time of writing.67

Chapter V PROTECTION OF CORE AREAS


The Bill proposed to grant provisional rights (for a five-year period) to tribal people who lived in core areas of sanctuaries and national parks, but they could be evicted with due compensation. However, if they were not relocated during this period, their rights would be made permanent. In contrast to this uniform and arbitrary approach, which lacked any scientific basis, 68 pursuant to the JPCs recommendations, the revised Bill introduced critical wildlife habitats, which were subsequently defined in section 2(b) of the Act as areas of National Parks and Sanctuaries that are required to be kept inviolate for wildlife

66 67

Ibid. Ibid. 68 Smita Gupta, Limited Rights, Frontline, 21 April 2006.

35

conservation using scientific and objective criteria. Under Rule 34 of the draft Rules, after consultations, the MoEF and the MoTA could issue detailed guidelines about the nature of data to be collected, the process for collection and validation of the data, its interpretation, etc. in determining the critical wildlife habitat. These guidelines were to take into account the existing guidelines relating to documentation of biodiversity and wildlife and delineation of areas such as heritage sites and national parks. However, the final Rules have completely by-passed the science based approach, leaving it to the discretion of the bureaucrats to define critical wildlife habitats.69 Nevertheless, the resettlement provisions of the Act certainly represent a way forward. The safeguards, which are included in section 4(2) of the Act,70 are in sharp contrast to the governments approach to wildlife conservation in the past, which involved relocation of local communities from protected areas without considering the impact of relocation and what can be done to manage or mitigate it.71 On the other hand, the Act does not define several key terms, such as irreversible damage, co-existence and free informed consent, and their parameters have also not been established. In contrast, the Bill had defined co existence and also provided for the free informed consent of the c oncerned individuals. The Act also excludes a provision in the revised Bill whereby communities had a right to their original habitation if they were unsatisfied with the rehabilitation. However, this is a welcome deletion given the vagueness of the term, as dissatisfaction with any form of displacement is a natural reaction and does not
69

V. Venkatesan, On the Fringes, Frontline, 29 February 2008.

71

Asmita Kabra, Wildlife Protection: Introduction and Relocation, 41(14) Economic and Political Weekly 1309 (2006). Tiger Task Force, Joining the Dots, Report to Ministry of Environment and Forests, Government of India, New Delhi 88 (2005), available at http:// envfor.nic.in/pt/TTF2005/pdf/full_report.pdf.

36

necessarily indicate failed rehabilitation.72 The Act explicitly provides that the government cannot divert critical wildlife habitats from which rights holders are relocated for other uses. Therefore, no subsequent permission for development activities can be granted in these areas.73 Further, the conditions laid down in Section 3(2) of the Act, which provides for diversion of forest land for developmental projects (such as schools and hospitals), serve as a communitybased check against the widespread diversion of forest lands for destructive development projects.74 It is also in compliance with the Samata judgment,75 wherein the Supreme Court held that the Gram Sabhas shall be competent to safeguard and preserve community resources. This provision is also significant in the context of a great push by the MoEF to open up forests to the corporate sector through the new Environmental Impact Assessment Notification of 15 September 2006. 76 In contrast to the traditional view, which envisaged an absolute severance of any human relationship with the protected areas, the identification of critical wildlife habitats could lead to a more site -specific, species-based approach. It also provided the opportunity to initiate a dialogue on participatory management of forest resources. 77 However, the anti-tribal lobby demanded that the government should notify critical wildlife habitats in all protected areas and evict tribals from these areas before the Act came into effect. They argued that the coming into force of the Act would result in land settlement taking place in all wildlife areas.78 Taking advantage of the resulting delay, on 31 December 2007, even before the notification of the Act and the Rules and the operationalisation of the term critical wildlife habitat, the MoEF
72 73

Ashish Kothari, Rights and Promises, Frontline, 28 July 2006. Ibid. 74 Ibid. 75 Samatha v. State of Andhra Pradesh, (1997) 8 SCC 191. 76 Archana Prasad, Survival at Stake, Frontline, 12 January 2007. 77 Arshiya Bose and Ashish Kothari, Sensitive Zones, Frontline, 29 February 2008. 78 Kirtiman Awasthi, Tiger Trouble Balancing Act Gone Awry, Down to Earth, 31 January 2008, available at <http://www.downtoearth.org.in/full6.asp?>, last visited on 22nd 12th March 2014.

37

issued guidelines to notify critical wildlife habitat.79 It then identified critical tiger habitats in the core areas of 28 existing and eight proposed tiger reserves under the amended WPA, which mandates the declaration of critical tiger habitats that can then be madeinviolate.80 As a result, these tiger habitats are excluded from the purview of the Act and the residents of the 273 villages, which are included in the areas notified as critical tiger habitats, cannot benefit from the provisions of the Act. In addition to the argument that due procedure has not been followed in the identification of these areas, even before the notification, the Future of Conservation Network had highlighted certain problems with the guidelines, inter alia including that:81 (i) They were issued for implementation and finalisation by state governments before the Act was notified. (ii) They can be operationalised only in tiger reserves under the WPA, but not in other protected areas. (iii) They provide for an unrealistic time frame for the state level processes to be completed by early 2008. (iv) The criteria for identification of critical wildlife habitats was too broad to be of practical use, was scientifically questionable and could lead to situations of trying to create inviolate areas even where not required.
79

Government of India, Guidelines to Notify Critical Wildlife Habitat Including Constitution and Functions of Expert Committee, Scientific Information Required and Resettlement and Matters Incidental Thereto (New Delhi: Ministry of Environment and Forests, 2007). 80 Supra note 99. 81 Future of Conservation Network, Comments on the Guidelines to Notify Critical Wildlife Habitat Including Constitution and Functions of Expert Committee, Scientific Information Required and Resettlement and Matters Incidental thereto, issued by MoEF, November 2007 (Bangalore: Future of Conservation Network, 2007), available at http://www.atree.org/foc_com_moef_cwh.pdf.

38

(v) Consultation with local communities during the identification and notification process is given as optional, rather than being mandatory as required by the Act. Despite these objections, the conservationists argument that the beneficiaries of the Act cannot be granted forest rights in respect of most of the national parks and wildlife sanctuaries, which have still not been notified, carried weight with the MoEF. 82 Following the MoEFs guidelines, several states have started identifying critical wildlife habitats within their protected areas with the purpose of making them inviolate. This approach of the MoEF, which interprets inviolate as being completely free of human use and thereby requires compulsory relocation of people, completely discounts small-scale human activities that may potentially be compatible with conservation.83

82

Madhu Ramnath, Surviving the Forest Rights Act: Between Scylla and Charbydis, 43(9) Economic and Political Weekly 37, 39 (2008). 83 Supra note 98.

39

Chapter VI LACUNAE IN THE FRA


The FRA has several lacunae and weaknesses. These can be divided into two categories: lacunae arising out of provisions or their lack in the Act, and lacunae due to gaps in implementation.84 Lacunae due to provisions in the FRA The problems inherent in the provisions of the Act can be seen in the notification of Mudumalai Sanctuary in Tamil Nadu as a tiger reserve in 2007, which resulted in a conflict between activists, non-governmental organisations and conservationists on the future of protected area management.

Conservationists saw the notification as essential for ecosystem stability and maintaining genetic diversity.85 Tagioff and Menon86 view the emphasis on conserving charismatic mega-fauna such as tigers as a reflection of the need to maintain a forest monoculture for commercial timber rather than genetic diversity. They point out that the rationale for saving forests is often simplistic - such as the traditional argument linking forests to rainfall and drought. They say the need is to facilitate context-specific, ecologically and economically informed forest governance. In this context, they point out that conservationists tend to ignore evidence that indicates benefits to the ecosystem derived from human disturbance. The other problem is that local people were not consulted in the decision to convert the area into a tiger reserve so democratic norms, including those vested in the FRA, were flouted.
84 85

Supra note 39. Ibid. 86 Daniel Taghioff, Ajit Menon. Can a tiger change its stripes? The politics of conservation as translated in Mudumalai. Economic & Political Weekly (EPW), Vol. xlv, No. 28, July 10, 2010. www.epw.in/epw/uploads/articles/14952.pdf

40

Mitra and Gupta87 criticize the FRA for not recognizing varied uses of forest land and being too theoretical in its language. They are apprehensive about the governments failure to follow up with procedures and safeguards to put the laws directives into practice. They question whether tribal communities can enforce and manage their legal rights to land while continuing to be marginalized in a macro socioeconomic context. They argue that while the basic principle behind the law is sound, the lack of a larger framework required to bring about reform on such a grand scale may not yield the anticipated benefits. For example, the law has nothing to say about ownership of common property resources even though there is huge dependence on such resources owing to limited availability of alternative livelihoods. Any law must address the issue of communal tenure and provide security of tenure to rural communities. Sathyapalan and Sirisha Naidu88 concur with this argument, pointing out that community rights are considered more equitable since even the poor and landless have access to forest produce but the FRA gives little importance to such rights. Sathyapalan points out the importance of taking appropriate steps to recognise community rights, considering how crucial MFPs are for the livelihood of these communities. Lacunae arising from improper implementation Sirisha Naidu89 is of the opinion that the realities of implementation and the corresponding outcomes are contrary to the aims of the FRA. For example, the government has made little effort to disseminate information about the application and approval process even though most beneficiaries are unaware of the full provisions of the Act, especially those pertaining to community rights.
87

xiiiKinsuk Mitra and Radhika Gupta. Indigenous peoples forest tenure in India. Land and cultural survival: the communal land rights of indigenous peoples in Asia. Edited by Jayantha Perera www.adb.org/Documents/.../Land- Cultural-Survival/land-cultural-survival.pdf 88 xvSirisha Naidu. The individual versus the common in the recognition of Forest Rights Act, 2006. December 16, 2009. http://sanhati.com/excerpted/2026/ 89 Ibid.

41

In

addition,

the MoTA

has

erected

administrative

barriers

against

implementation and set arbitrary deadlines for completing the process for recognizing these rights. The MoEF also continues to divert land without the approval of those affected and relocates people and communities to notify critical wildlife habitats in a manner contrary to the Act . Another example of non-implementation pertains to Clause 3 (1)-(i) of the FRA, which poses a direct threat to many development projects undertaken by private or public concerns, or through public-private partnerships. The clause notes the right to protect, regenerate or conserve or manage any community forest resource which they (the community) have been traditionally protecting and conserving for sustainable use. In blatant disregard of the FRA, the forest department and MoEF continue to promote dangerous sham participatory schemes after instituting their own set of rules and procedures. To take yet another example, the state of Chhattisgarh has a spotless track record of settling claims on paper. Yet, according to data reaching the MoTA, the state government received 486,101 applications by March 31 2010, of which 44% were accepted while the rest were rejected. Essentially, over half the claims were rejected, which is a pointer to the difficulties faced by tribals in proving their claims. Following a field visit to Chattisgarh, N.C.Saxena, chairperson of the Saxena Committee on the FRA constituted by the MoEF and MoTA, points out in his report that many difficulties have not been considered at the official level90. They include the following91: Lack of action on community rights: The state government admits that almost no action has been taken under sections 3 (1) (b to m), which pertain to community rights. On the other hand, several applications for community rights

90 91

N.C.Saxena. Implementation of Forest Rights Act in Chhattisgarh: Report of field visit, May 24-27, 2010. Supra note 39.

42

have been accepted under section 3 (2), although this section is not about community rights. Inability to file claims in time: Several deserving claimants could not file their claims on time. Under the erroneous impression that the last date was over village officials and the FRCs had stopped considering new claims. Erroneous rejections: These mostly occur because of hasty enquiries and inadequate vetting by senior officials. Most rejections are at the village level, where applications have been submitted solely on the report of the patwari or forest guard without being scrutinised at higher levels. Nor have claimants been given reasonable opportunity to prove their claims, as provided in Rule 4(c). The tribal welfare department neither cross-checks the work done at the village level by the revenue and forest officials, nor engages an outside agency to conduct an independent assessment. This needs to be done in a proper manner since hasty assessments can not only lead to wrongful rejections but also wrong recognitions. Procedural errors: Many applicants faced problems in filling the f orm. For example, most applications do not mention the area under occupation because of poor translation of Form-A from English to Hindi prescribed under rule 6 (1). The name of the wife is left out in many cases, although Section 4 (4) of the Act prescribes that the title should be in the joint name of the spouses in case the applicant is married. Cases of claims in national park were not dealt with as per the law, so the blanket rejection in such cases was illegal. No right of appeal: Applicants were not informed in writing when their claims were rejected. So they could not exercise their right of appeal. A proper format needs to be designed by the state government to communicate the reasons for rejection so that an appeal can be filed with the higher authority.

43

Inactive departments: The vigilance committee of elected officials set up by the state government is inactive. Similarly, the tribal welfare department, despite being the nodal department, has failed in providing leadership to the programme, resulting in a low profile implementation campaign and low awareness of the Act. The deparments role is to develop qualitative indicators, call public meetings, hold public consultations, put pressure on the revenue and forest departments at the district level to do justice to the forest dwellers, and improve communication between officials and the people. Instead it merely collects statistical information and forwards it to the higher levels. Purabi Bose92 points out apprehensions at the local level about implementation of the FRA. The fear is that once the Act is implemented, tribals and other forest dwellers would be required to live inside the forest area even though most of the tribal land is under the revenue department. Panchayats are unaware of how state policy will be formulated to address the issue of land tenure. Sourish Jha 93 points out that the implementation of the FRA has caused controversy in West Bengal. The Gram Sabha has been replaced by the gram sansad as the village-level constituency under the Panchayati Raj system, with contiguous arrangements being made and initiatives taken that are inconsistent with the Act. All these factors have led to undermining the spirit of the Act, invoking stiff opposition from forest dwellers in the region. Lacunae due to macro framework There is also a lacuna on account of the macro environment. The FRA requires coordination between several departments that are unable to work in concert. Sathyapalan points out that the tribal, forest, revenue and local self-government
92

Purabi Bose. Strengthening institutions: panacea for trib al forest governance in India. asc2008.glos.ac.uk/ conference%20papers/papers/B/Bose_203001.pdf. 93 xixSourish Jha. Process betrays the spirit: Forest Rights Act in Bengal, Economic & Political Weekly (EPW), Vol. 65, No. 33; beta.epw.in/static_media/.../C081410_Process_Betrays_Sourish_Jha.pdf.

44

departments are involved in implementing the Act. Each department interprets the law according to its own mandate and objectives and devises its own set of rules. They make implementation decisions through various committees constituted at different levels of the state administration and their differing perceptions makes implementation difficult.94

94

Supra note 39.

45

Chapter VII THE ROLE OF JUDICIARY IN PROTECTION OF FOREST RIGHTS


Tribal people depend upon forest, which is the only source of their livelihood. The case of Fatesang Gimba Vasava v. State of Gujarat95 is a typical case that explains the impact that the reservation of forests had upon tribal habitat. Here, the tribal population was supplied bamboo at reduced rates to enable them to make out a living by making articles for sale in the open market. However, the state forest officials blocked the transport of articles on the ground of possible exploitation of forest in a reckless manner. The Gujarat High Court laid emphasis on the rights of tribals to depend on the forest, which was the only source of their livelihood. Their removal did not warrant action by forest officials. The court said that once bamboo chips are transformed by human labour into a commercially new and distinct commodity, the article ceased to be produce of nature. Whereas, in the same year, the Apex Court recognized that for industrial growth and progress, exploitation of resources available from forests cannot be ruled out. The location of development projects in or near a forest area raises complex questions, such as conflict between short-term benefits and long-term losses, the social impact, rehabilitation of the local population and afforestation. In Banwasi Seva Ashram v. State of Uttar Pradesh 96 , the Supreme Court approved the advent of a thermal plant of National Thermal Power Corporation
95 96

AIR 1987 Guj 9, (1987) 1 GLR 219. AIR 1987 SC 374.

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Limited (NTPC) in a location that extended to a forest area, and ordered for proper rehabilitation of the oustees. Again, in 1992, in the second Banwasi Seva Ashram 97 , the Supreme Court passed yet another Order for proper rehabilitation of Banwasis and Tribals so far as NTPC was concerned in their Mirzapur project. The court said that NTPC must ensure that the rights of the outees were determined in their respective holding and they were properly rehabilitated and adequately compensated. It would be apt to mention here that, even after the strict orders of the court, the rehabilitation policies were not effectively implemented. Further, in Pradeep Krishen v. Union of India98 the Supreme Court was of the view that one of the reasons for the shrinkage of forest cover being entry of villagers and tribals living in and around the Sanctuaries and the National Parks, the situation demanded urgent steps to prevent any destruction or damage to the environment, the flora and fauna and wildlife in their areas. In this way, tribals who are the sons of soil and saviors of forests were marked as "encroachers" and "illegal occupants" of forest lands. There are some judgments where the court has prevented the non forest activities in the protected forest to protect the rights of forest dwellers as well as maintenance of ecological balance. T.N Godavarman Thirumulkpad v. U.O.I,99- FCA- Check deforestation, Applies to all forests. The court said that running of sawmills of any kind & mining are non forest activities.

97 98

(1992) 2 SCC 202, pp. 204-206. AIR 1996 SC 2040. 99 AIR 1977 SC 1228.

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Goa Foundation v. Conservator of Forests, Forest Dept Panaji, 100 Housing colonies planned to be constructed in the forest area were held to be an eyesore to the people visiting the place.

100

AIR 1999 Bom. 177.

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Chapter VIII CONCLUSION AND RECOMMENDATIONS


How precisely the Act will play out in different parts of the country is going to depend on several political, policy and ground-level factors, including the level of mobilization and cohesion of forest-dwelling communities in a particular area, the sensitivity of state government officials administering the Act given Indias federal structure, the ecological fragility of the area, and increasingly, whether the area is considered a Maoist stronghold to be pacified through paramilitary force. The FRA itself is undoubtedly a landmark legislation providing the legal framework for major pro-poor institutional reform in the governance of the countrys forests. Providing a remarkably comprehensive coverage of redressal of rights deprivations, the Act gives extensive provision for major reforms in tenure and forest governance. There are indeed issues with precise wording; however the bigger issue is whose interpretation of the Act will prevail. Whether it will be taken up and implemented according to its spirit, or rather whether the terms will be interpreted narrowly to divert the intent. Evidence from implementation to date suggests that while the state is attempting the most narrow interpretation, grassroots movements are demanding implementation as per the spirit of the Act. Given Indias federal structure, there is also wide variation in how the Act is being implemented between different states. The wording of the text is critical for determining the scope of interpretation of inclusions and exclusions in implementation. Non-tribal forest dwellers are clearly likely to be amongst the biggest category of the excluded due to the unreasonable requirement of having to prove 75 years of residence. Many others suffering from the deprivation of rights are also likely to be excluded due to not being able to marshal evidence of
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their eligibility. The rules have left their task half done with major omissions. They have failed to provide any guidance on the recognition of the more complex rights. By not clarifying the Gram Sabha responsible for initiating the process of recognizing rights for different types of villages, they have enabled state governments to violate a critical provision of the law meant to ensure that claims are made in an accessible, transparent and democratic forum. It is also clear that even if implemented in the best possible manner, complementary institutional reform in a host of other laws and structures is required to achieve the full pro-poor mandate of the law. To date, there is no evidence of this taking place. While safeguarding the customary rights and interests of such people the author makes following recommendations: 1. One of the major causes for degradation of forest is illegal cutting and removal by contractors and their labour. In order to put an end to this practice it is necessary to give the management of the forest to village or tribal community with the assistance of forest department. So that the opinion of the village or tribal community would be considered for their best interest. 2. Protection, regeneration and optimum collection of minor forest produce along with institutional arrangements for making of such produce. 3. Indigenous peoples and individuals should not be discriminated in the exercise of their rights, in particular that based on their indigenous origin or identity. 4. Grazing of the forest areas should be regulated with the involvement of the community.

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5. Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right. 6. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. Indigenous peoples shall have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned. 7. Encroachment on forest lands has been on the increase. This trend has to be arrested and effective action taken to prevent its continuance. Thousands of indigenous families and forest dwellers are being evicted or live under threat of eviction across a rapidly industrializing India. Mass evictions are being fuelled by corporations and government officials eager to control their valuable land. 8. Forestry should be recognized both as scientific discipline as well as profession. Agriculture Universities and institutions dedicated to the development of forestry education should formulate curricula and courses for imparting academic education and promoting research. 9. Indigenous peoples must feel secure in their land tenure and play a central role in forest, land and resource management, in land-use systems and in conflict resolutions.

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