Tribals and Green Governance: Forest Rights Act, 2006

October 16, 2011

By Debasree De.

The author is a UGC Junior Research Fellow at Department of History, Jadavpur University, Kolkata.

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The profit motive and integration into larger global capital markets drive the Indian State’s tribal and forest development programmes. The laws and the “new welfare models” are used by the State to retain its authority, power and supremacy over resources, alienate people from their land and way of life, and create and sustain capital markets. The governmental strategies, ominously identical to innumerable development interventions of the recent past have proven to be completely disastrous for the tribals and have completely failed as an approach to forest conservation. The sceptics further argue that visibly engaged in the path of development as India is today, contemplation and implementation of various ‘development’ projects for mining, dams, establishment of special economic zones, etc. will be on the rise and that can only mean that there will be more cases of displacement leading to further expropriation and pauperization of the non-elite tribal people. Pro-poor institutional reform may well resemble scaffolding, of which the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 is a plank.

Civil society has been largely indifferent to the economic plight of the tribals. It has even been argued that the governmental model of development might simply misfire, even threaten the subaltern perception of “development”. This view has provided a comfortable escape route for the government. Moreover, the Governors of the states with scheduled tribal areas had been largely ignorant of their discretionary powers under the Fifth Schedule read with Article 244 of the Constitution of India. The Governors have no idea about their constitutional role. The cumulative result of neglect over decades has been widespread exploitation and tribal unrest. Hindustan Times reported, ‘Gradually the crowd swells in the clearance amid the Dandyakaranya forest-then comes the song of rebellion – the audience: 600 odd tribal men, women and children breaks into applause…Naxal guerillas armed with self loading guns and 303 rifles are sprinkled in gathering…they showcase the evils of mining planned by the Chhattisgarh government. The fear of displacement is spreading among tribal population…fear new roads and railway links will lead to displacement…spoil the fragile ecology of the region.’ [1] The Home Minister Mr. P. Chidambaram said that, “We hope ambiguity over power of Governors under 5th Schedule read with Article 244 of the Constitution of India is put to rest. This provision may be leveraged for improving governance and ensuring more effective targeting of tribal development projects.” [2]

The Planning Commission set up an Expert Group on “Development Issues to deal with the causes of Discontent, Unrest and Extremism” in May, 2006. In the Chapter – 5 of the report few recommendations have been given towards effective implementation of protective legislation. It states that, “The State’s response to continued unrest and social dissension in areas predominated by scheduled castes and tribes was to formulate three protective laws…These three Acts are the Provisions of the Panchayats Extension of the Schedule Areas Act 1996, the National Rural Employment Guarantee Act, 2005 and The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006…It is necessary to build up an impregnable protective shield of the State, against multi-faceted exploitation of these communities. This should be done by effective implementation of the existing constitutional provisions, protection of civil rights and SC/ST (Prevention of Atrocities) Act laws and programmes in place for this purpose.” [3]

The contradiction of Indian politics lies in its espousal of a development model that is anachronistic in nature. The paradox of a developing society is that it borrows from a model that has outgrown itself in the West, but is parcelled out to the East. Just as under-development in the Third World was once perceived to have been created. The emergence of what can be called the civil society movement in India is largely linked to this new brand of modernity that is beyond the pale of its classical industrial design.

Forest Rights Act, 2006: The Supreme Court of India in an important case held that the tribals have a definite right over the forests and any sort of forest diversion or eviction should have their informed consent. Following suit, in an affidavit to the Apex Court, in June 2004, the Government of India made a significant admission by holding that “historical injustice” [Expression used in an affidavit submitted to the Supreme Court on behalf of the Ministry of Environment and Forests, Government of India, July 21, 2004. This historical injustice was perpetuated by the Wildlife (Protection) Act 1972 (the ‘WPA’) and the Forest Conservation Act 1980 (the ‘FCA’), which identified environmental protection and recognition of the rights of tribal communities as mutually irreconcilable objectives. Other legislative and executive measures in the post independence era continue to perpetuate these differences.] had been done to the tribal forest dwellers of the country, which needed to be immediately addressed by recognizing their traditional rights over forests and forest land [4]. What made this admission particularly crucial was its acceptance that colonial perspective on forest management had failed and alienated a large chunk of the forest dwellers, especially tribals from forests and forest-based livelihood options. Besides, it could not have come at a better time—just months after the eviction of about 168,000 families from over 150,000 hectares effected by the May 2002 Government order of eviction of forest encroachers. This led the Government of India to introduce the Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 in Parliament on 13 December 2005. This legislation is now widely accepted and revered as a major step towards achieving social justice and a milestone in the tribal empowerment process [5].

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, henceforth FRA, is a major opportunity to strengthen economic and social security of tribes and other forest dwellers. The act also endeavours to facilitate their political empowerment by giving them a basis to participate in various processes so that they have an equal stake in as citizens of this country. Awareness of their rights ensures that they do not remain mere afterthoughts and that they assume visibility after decades of shadowed existence. The act aims at restoring traditional rights of forest dwellers and maintaining ecological equilibrium so crucial to the forest areas. Further, the act talks about the preservation of sustainable livelihoods of the tribes and other traditional forest dwellers.

FRA, 2006 marks a clear paradigm shift in the approach of the Ministry of Environment and Forests towards the Scheduled Tribes, who were hitherto held responsible for the destruction of forests. So far, the plight of the tribals, whose economy was associated with forest resources, had been largely ignored and disregarded with utter contempt. In the FRA, the government of India, for the first time legally acknowledges the historical injustices suffered by adivasis and other traditional forest dwellers whose rights were inadequately recognised, during the colonial period as also in independent India in the form of displacement, land acquisition, establishment of biosphere reserves and wildlife sanctuaries. It also acknowledges that these communities are integral to the very survival and sustainability of the forest ecosystems. The Economic Times wrote, ‘The Government admitted that its writ no longer ran in parts of 160 districts affected by…extremism…States like Chhatisgarh demanded special attention to these areas to 19 drives away the feeling of alienation of locals. Interestingly Mr. Singh (the Prime Minister) called for stern policing to reign in the menace but he sounded a word of caution against ‘brutalisation of the state’… local tribals themselves could be involved in these (development) schemes and not only should they be given the rights to use forest produce but also some kind of certificate of ownership should be handed out…’ [6]

Political activists, political parties, civil society organizations and a section of the State represented by the bureaucracy perceive the FRA as a milestone in the history of tribal social movements. It has won for the tribal forest people their long overdue rights over “forest land”. On the ground, reports say, the process of implementation is facing several problems. At the root of these problems is the unwillingness of the forest department to let go of forest land under its jurisdiction. It is clear there is a conflict over forest land rights between the forest department and the tribal-forest people. Now, the questions may arise, is the FRA of 2006 designed to undo over 100 years of injustices to the forest dwellers and tribal people? It is important to remember that justice is appropriate and adequate only if it measures up to the depth and scale of injustice(s), both as perceived by the one who has suffered and what it is in actuality. With what facts did the bureaucrats, academics, planners, political and civil society activists, who applauded this Act for “undoing historic injustices”, perceive the depth and the scale of injustices? The truth is that history shows the depth and scale of injustices and damages to be no less than genocide and ecocide. It is worth considering that the FRA has been legitimized by claiming that it is in the interest of people. However, it appears to be in the interests of the alliance between State and market. This is reflected in the form and content of the FRA 2006 [7].

Now, let us see what are the ideals of the FRA of 2006? The preamble states,

…Forest rights were not adequately recognised in the consolidation of State forests during the colonial period as well in independent India resulting in historical injustice to forest dwelling Scheduled tribes and other traditional forest dwellers…It becomes necessary to address the longstanding insecurity of tenurial and access rights of forest dwelling Scheduled Tribes and other traditional forest dwellers including those who were forced to relocate their dwellings due to development interventions.

Thus, FRA is “an Act 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” (p 1). This, it is posited, will prepare the ground for “sustainable use, conservation of biodiversity and maintenance of ecological balance…while ensuring livelihood and food security…” (p.1). In reality, the debate preceding this Act made it very clear that the “rights” to “forest land” seek to regularise “encroachments”. As Bela Bhatia (2005) argues,

Some opponents [The opponents referred to here are the forest department] of the bill claim that it intends to distribute 2.5 hectares of land to each adivasi nuclear family in the country. This creates a fear that entire forests will then get wiped out. In reality, the bill only seeks to recognise what is already there, i. e, to give land rights to people who have been cultivating forest land for generations (before 1980), often in circumstances where the forest was ‘reserved’ without due settlement of traditional land rights. In fact, the entitlements to be created under the bill are consistent with the existing policy framework, in particular the ‘1990 guidelines’ formulated by the ministry of environment and forests (and partially implemented). These guidelines put in place a procedure for the regularization of so-called ‘encroachments’ that occurred prior to the cutoff date of 1980. The basic purpose of the bill is similar and the same cut-off date is being used [8].

This appears to be in contradiction to the preamble of this Act. According to the Ministry of Environment and Forests, the total area of forest land under “encroachment” (whether by adivasi or other communities) is 13 lakh hectares. This is less than 2% of the recorded forest area in the country [9]. Some environmentalists, academicians, judiciary, media and interestingly even some free marketers seemed to share the perception of the forest department that these people were “encroachers” or ‘thieves’. One reason for such misconception is ignorance of the fact that it was precisely because of the forest centralization and nationalization that these people lack property rights and in the eyes of the law have become “encroachers”. Opposition from the forest department is explicable, as this law curtails its century old power and monopoly and gives power to the people over forest land as well as forest resources.

Other myths that were propagated against this Act were that this legislation would give away forest lands to the tribals and thus destroy the forests. Both these perceptions are wrong. One, this legislation does not distribute forest lands to the tribals, but only recognizes their long occupation rights and gives titles to them. Another misconception that it would harm the forests is also contrary to the reality. In fact, it was the centralized management of forests that created the tragedy of the commons in the first place. Therefore, the FRA of 2006, by regularising “tribal encroachment”, is in fact consolidating State encroachment. How deep does State encroachment damage the forest and injure the forest dwellers and tribal people? The history of State encroachment will give us a clear understanding of the brutality involved in the processes of primitive accumulation of capital and also the depth and scale of injustices and damages.

The Act recognises individual rights to land being cultivated in forest areas prior to 13 December, 2005 [FRA 2006, Section 4(3)]. It also recognises community rights and other traditional customary rights [FRA 2006, Section 3(a to m)] of the community to the forest such as nistar rights, rights to ownership, collection, use and disposal of minor forest produce (MFP), rights to traditional water bodies and their produce (NTFP), grazing rights (both settled or transhuman) and traditional seasonal resource access of nomadic or pastoralist communities, rights to biodiversity, cultural diversity, rights of habitation, and any other customary rights not mentioned. More importantly, it accords legal rights and confers powers to the communities to protect and manage their community forest resources in accordance with their traditional modes of conservation and also protect the forests, wildlife and biodiversity [FRA 2006, Section 3(i) and Section 5]. Some of the significant provisions are as follows:

• Community tenures of habitat for Primitive Tribal Groups and pre agricultural communities

• Rights over disputed lands in any state where claims are disputed

• Rights for conversion of pattas/leases/grants issued by any local authority or a state government on forest lands to titles

• Right of settlement and conversion of forest villages and other villages in forests (recorded, notified or not) into revenue villages

• Right to protect, regenerate, conserve, or manage any community forest resource, which they have been traditionally protecting and conserving

• Any other traditional rights that are enjoyed by the forest dwelling STs or traditional forest dwellers (except the right of hunting, or extracting a part of the body of any species of wild animal)

• Right to in situ rehabilitation including alternative land in cases where STs and Other Traditional Forest Dwellers have been illegally evicted/ displaced from forest land without receiving legal entitlements. [10]

The act also prescribes duties such as protection of habitats, wildlife and biodiversity and provides a framework for forming various committees to ensure that the people themselves have a say in the governing of the forests they know best. Gram Sabhas and forest rights committees are necessary to build a system of administration that provides a means to protect and uphold these inalienable rights. The legal framework therefore is essential to operate within to ensure social justice and community development goals are met.

Under the FRA, the government is also supposed to divert forest land for development schemes and programmes such as schools, hospitals, anganwadis, irrigation, roads etc.

Deprivation of Tribals in FRA: The Forest Rights Act though lauded by tribal rights activists and politicians and scholars, it has been criticized on several accounts not only by hard-core conservationists but also by others. The major arguments can be categorized into three parts – intention related, structure related, and impact related. We discuss these in the following paragraphs.

The intention related argument is, what explains the State’s absolute reluctance in implementing community rights? The answers can perhaps be found in an analysis of recent forestry development plans and programmes announced by the state, which can be described very simply as being an agenda of monoculture plantations and afforestation, which need to be critically examined to unravel the implications on tribals. According to S. Gopalakrishnan, the compulsion to design and pass the Act might be located in the demands of a political constituency. It might also be located in the recognition of the growing threat of left-wing insurgency [11]. The Act, however, goes beyond addressing the immediate issue of survival and security for forest dwellers that might be needed to pacify those marginalized and even persecuted by “development”. As Gopalakrishnan notes, it is also “an entry point into a deeper, wider politics of struggle over resources” [12]. For this reason, the representatives of the state (especially the Forest Department) have worked to restrict the scope of the FRA to tenurial security and subvert the provisions of community rights and the rights against arbitrary displacement [13].

There are several concerns and problems regarding these developments. First and foremost is the issue of governance. The process of providing funds directly to the joint forest management committees for afforestation, created and controlled by the forest department, completely bypasses and undermines the pre-eminent constitutionally determined governance role of local bodies like the gram panchayats/gram sabhas. In scheduled areas, in particular, the Panchayat (Extension to Scheduled Areas) – (PESA) – Act, 1996, and the FRA, are powerful legislations. They spell out the role of the gram sabha in governing the forestscape, in tune with the customary practices of local communities, fulfilling livelihoods, cultural aspirations, and exercising the right to traditional conservation and protection strategies. According to these laws the decisions to implement or reject mono-crop plantations and afforestation programmes that threaten to displace traditional livelihoods, biodiversity, associated indigenous knowledge and cultures and local ecosystems, should rest with the community and the gram sabha.

With the promulgation of FRA, the age-old debate “tigers or tribals” has been revived once again. Sanjoy Patnaik has pointed out that, one of the most contentious issues influencing the realisation of the forest rights within a protected area has been the declaration and demarcation of the “critical wildlife habitat” (CWLH), a crucial aspect of the Forest Rights Act. But, there is a deliberate misunderstanding leading to improper interpretation of the Act. The Government has decided to evict villagers from the villages falling in the way of the special tiger corridor. One of the crucial threats to the proper implementation of the Act is the interpretational freedom of the Forest Department. Whether it is occupation on forest land or demarcation of CWLH or ownership over Non-Wood Forest Products (NWFPs), the Forest Department does what suits its interests best. Amidst all of its good work, the Ministry of Tribal Affairs (MoTA) should be careful about not allowing state bureaucracies to enjoy such extraconstitutional freedom [14].

FRA gives individual property rights to the tribals and other forest dwellers on the forest lands under their occupation for cultivation and dwellings and community rights on forest resources, including right to manage them, and total ownership rights on Non Timber Forest Produces (NTFPs). A most significant feature of the Act and one of the main grounds of opposition of the environmentalists to the legislation is that it gives all these rights to the people living inside the Protected Areas (Sanctuaries and National Parks) too. They believe that these Protected Areas should be kept inviolable and all the people living inside should be evicted and resettled outside. This is a very serious contention and we have to examine it in depth. Today, there are 600 odd Protected Areas in the country. More than 4 million people live in these Protected Areas (PAs). A question here is how and where these many people could possibly be resettled. A most important point here is most of these PAs have been declared without any rhyme or reason and no scientific surveys have ever been carried out before their declaration. In fact, there is no provision in the relevant legislation [Wild Life (Protection) Act, 1972] in this regard. The government can declare any government land as Protected Area, if it thinks it suitable for wild life preservation, irrespective of the fact whether any wild life worth the name exists there or not, let alone any wild life on the verge of extinction.

One of the most important structure related arguments is, FRA sought to mix oranges with apples. While tribals and forest are synonymous and one cannot be separated from the other, same is not the case with the “other traditional forest dwellers” i.e. non-tribals. Non-tribals usually do not take livelihood activities in forest by choice. However, by legitimizing their occupation of the forest lands under the guise of “Other Traditional Forest Dwellers”, the Act negated the spirit of the various safeguards available to the members of the Scheduled Tribes under the Constitution and other relevant laws of the country. Rather than improving the lot of the tribals, the Act will lead to conflict of interest between the forest dwelling Scheduled Tribes and other traditional forest dwellers [15].

Now, the question arises, who rules in disputes? According to the FRA, the gram sabha plays a key role in determining who has what rights to which forest resources. This is an attempt to devolve decision-making powers to the grassroots level, that is, to the hamlet level. However, the rules direct that in any area under dispute that is not a “scheduled tribal area”, the decision-making authority will be the panchayat (“revenue” village council), not the gram sabha. (Each panchayat comprises several gram sabhas.) If a forest-dweller village is only one among many villages that form a panchayat, where the non-forest dwellers are the majority, the forest-dweller village might find it difficult to get its rights approved if the others oppose. This is because corrupt officials and village elites could easily exploit the vulnerability of forest dwellers in such a council and manipulate the council resolutions in favour of vested interests, or against forest dwellers.

The next question is who conserves forests? The FRA authorizes forest-dweller communities to protect forests against destruction. Instead of defining this key right and the environmental interests of forest dwellers and specific powers to implement them, the government has said in the rules that a forest-dweller community should conserve forest and forest resources as a “duty”, closely following an official “working plan” prepared by the Forest Department. The rules do not clarify whether forest dwellers will be consulted on a free, prior, and informed basis in formulating such working plans or what actions they could take to halt or regulate forest destruction by any external agency, including government departments and private companies. This means that the forest-dwelling communities could become tools in the hands of the Forest Department and private companies that would like to exploit resources in forest areas.

Further, the Act defines a ‘generation’ to mean a period comprising of twenty-five years. Hence, in order to qualify for forest rights under the Act, the ‘other traditional forest dwellers’ must prove that they have primarily resided in and depended on the forest or forest lands for bona fide livelihood needs since the year 1930. The inclusion of such a restrictive provision would render the claims of nomadic tribes and members of the more vulnerable non-ST forest dwelling tribes, who may have relied on other means of livelihood since the year 1930, ineligible [16]. So, how do people prove they are eligible? The rules do not clarify how the two intertwined criteria of eligibility — forest dwellers should reside in forests and should prove 75 years of family residence in the area—will be applied to evicted forest dwellers and those whose land have partially been taken over for public purposes. Without such clarifications, it is easy to apply the two criteria to exclude many forest dwellers from the purview of the FRA, as many of them do not possess documentary evidence to prove that they have been forest dwellers at least for three generations (75 years). Furthermore, there is no rule that provides a way for “other traditional forest dwellers” to prove that they qualify for the rights guaranteed by the legislation. According to Archana Prasad, the Act fails to provide any guidance on the nature of admissible evidence to prove the beneficiaries’ claims to forest rights. Given the stringent time requirement, which requires proof of residence for a period of seventy-five years, which would commence in the pre-independence period, it was argued that if oral evidence and spot verification were not included as admissible evidence, a large section of genuine claimants would be deprived, as government officials would rely on colonial records for the settlement of rights [17].

Some significant observations came out regarding FRA during my field survey in Purulia district of West Bengal. I had visited many blocks as well as villages. Tribals of Kheria Sabar community mainly live in several villages of Balarampur block in a scattered way. Berma, Sirgi villages are some of them. The Kheria Sabars are hunting-gathering tribe. The women of the community make broom-sticks. Despite the Centre having introduced the FRA in 2006 to issue pattas, the district administration here is yet to do so for most of the Kheria Sabars due to its lackadaisical attitude. The officials of land and land revenue department of the district informed me that there are 2, 600 Kheria Sabar families residing in various blocks of the district have not received forest land pattas till today. 1, 700 Kheria Sabar families had applied for land, but only 250 families were given land. The officials said that necessary announcements to inform the community were not made by the local administration and, as a result, most of the Kheria Sabars could not submit their tribal certificates in time. The local people alleged that they had faced tremendous hardships to get their land even after submitting tribal certificates, along with other necessary documents, to the local administration. Because of the harassment they faced in the application process, they had stopped visiting the local panchayat. It was also found that a section of Kheria Sabar families could not apply for land as they were not provided with tribal certificates. And it is not possible to apply for the pattas without tribal certificates. It is shocking because Kheria Sabars are one of the oldest tribal communities in the country who were notified by the British as “Criminal Tribes” and later in 1952 they got denotified. Therefore, it is quite evident that the developmental schemes announced for their welfare have not reached them [18].

A leading news paper has recently published a report reflecting this aforesaid problem of the FRA provision. Jangal Mahal of West Bengal is the most conspicuous instance of undevelopment and is deadly affected by the extremism. But still hundreds of thousand adivasi-banabasi people have been declined their forest rights inspite of applying for the pattas of the forest lands. Overall 1, 35000 applications have been submitted by the tribal people claiming for the pattas of the forest lands amongst which only 27,000 claims have been fulfilled so far. So, more or less 80,000 claimants have been deprived of their rights. In fact there is no initiative taken by the government to collect information about the rest of the 25,000 claims in the Maoist infested areas of West Midnapur, Purulia and Bankura districts. The officials have put some alibis to legitimise their negligence and they are, 1) the claimants have failed to prove them as tribals, 2) many claimants for one single piece of land, 3) the very piece of land can not be regarded as forest land and 4) the forest land is not the only source of livelihood for the claimants, etc. The forest rights committee has all the power to consider or reject any plea. The rampant corruption is thus vitiating the real aim of FRA [19].

B.K. Roy Burman has drawn our attention towards another structural ambiguity relates to the population precisely covered by the Act and the Rules. Rule 24 of the Rules published on June 19, 2007 had provided that (i) the village level institutions or Gram Sabha may perform the duties falling under Section 5 of the Act, on behalf of holders of any forest right, and they shall be empowered to (a) prepare a plan for the protection and management of community forest resources; (b) prepare and adopt norms including institutional arrangements for the protection and regulation of access to and sustainable use of the community forest resources; (c) prepare norms for community wild life management; (d) evolve procedures to protect, conserve, regenerate or manage the resources while protecting the interests in forest rights of vulnerable groups and women; (e) evolve methods for monitoring and implementing such norms. In sub rule (3) of Rule 24, the draft Rules further provided that in case there was a conflict between a decision of a Gram Sabha and a user group in regard to exercise of rights under clause (1) of sub section (1) of Section 3 of the Act, the decision of the Gram Sabha would prevail, while ensuring that forest rights of vulnerable groups and women were not put to any disadvantage. The draft Rules thus vested substantive legal and administrative instruments with grass-root level bodies to ensure that the tasks entrusted with the forest rights holders were implemented. But the Rules finally framed do not contain any of these provisions.

The impact related argument is that with such afforestation programmes, adivasi communities are confronted with multiple displacements – from land, productive resources, biodiversity, and knowledge. Now, the question arises, what is the difference between community rights and developmental facilities? Section 3 (1) of FRA provides for various community rights of access and use of forest resources whereas section 3 (2) provides for diversion of forest land for developmental facilities like schools, roads, irrigation, primary health centres, anganwadis, fair price shops, electric and telecommunication lines, drinking water etc. A separate guideline has been issued by the Ministry of Tribal Affairs on 18th May 2009 on the procedure for diversion of forest land for developmental facilities provided under section 3 (2). The process of enclosing these commons, and pushing adivasi and other forest dwellers out of the forests, has been going on for the past 200 years and continues unabated. Each time the adivasis lose their land and forests due to the State’s power which takes control in the name of the “larger public good”, they are forced to sacrifice land, and cultivate monoculture plantations, to compensate for the earlier loss. The State destroys and the adivasi has to pay for it over several generations. The communities depend on the forest – the land, the water bodies and the grazing areas to sustain their livelihoods. Acquiring these forestlands for afforestation purposes would deprive forest dwellers and adivasis of some or all of their lands and adversely affect their livelihoods and basic needs. They are neither informed, nor compensated for these acquisitions.

So, where do displaced people go? Indian courts have clearly stated that if a forest-dwelling community is physically displaced because of a development project, the state should make all possible arrangements for the community to continue its livelihood and maintain its cultural identity elsewhere. This is one of the core forest rights that are bestowed on forest dwellers by the FRA. The rules published in 2008 neither elaborated this key right of forest dwellers nor stipulated how a development project that would displace them could rectify such a breach of their rights. Instead, the central government has handed over the responsibility of formulating the rules for dealing with land acquisition and resettlement of displaced forest dwellers to the Ministry of Environment and Forests. The ministry strenuously opposed the draft bill of the FRA on the grounds that such rights would increase human activities in forests and thus harm the sensitive ecology of forests and wildlife (Empower Poor 2008). Although the FRA was enacted, the ministry has not changed its opposition to the awarding of forest rights to forest dwellers. Such attitudes and opposition to the environmental rights of forest dwellers make them vulnerable to the actions of a powerful central ministry, which does not recognize their livelihood and survival rights. Moreover, the ministry could interpret the FRA narrowly in formulating the rules, which could limit their enjoyment of forest rights.

For example, let us look at the status report of West Bengal government, recently published by The Statesman, on the Totos – the smallest primitive tribal group in the state – that tells a dismal story. The report, prepared by the state backward classes welfare department, reveals that Totos – who inhabit a remote area known as Totopara in Jalpaiguri district and have a population of just 1,346 – were evicted from a 400-acre stretch of government land vested to them over a 100 years ago, and that they have been cultivating. No steps have been taken so far to return the land to the community though the Forest Rights Act came into force in 2006, precisely to correct such wrongs. The status report also points out that land owned by the tribal group is being encroached upon by other communities illegally and the tribals are being forced to dispose of their land at a throwaway price.

According to the report, the first settlement survey was conducted at Totopara in 1989-94. Totopara mouza was reserved and restricted for the exclusive use of the Totos. At that time, land in the entire mouza was given on lease to the Toto chief who accepted it on behalf of the community. The land was cultivated with the go-ahead of the Totos’ traditional tribal panchayat. In 1951, the total area of Totopara was earmarked at 1996 acres during the Census Survey; in the settlement in the same year the figure was 1999.96 acres. However, individual ownership of land came into effect in Totopara in 1969 and the area was “unreserved”. During the settlement operation in the same year, a total of 347.43 acres of land was recorded with 89 Totos families. The residual part of the land (about 1600 acres) was brought under the District Collector’s possession. Even, after the settlement, however, the Totos continued cultivating a portion of this residual land on the bank of the river as it was a very fertile stretch of about 400 acres located on the south-east side of the mouza. In 1981, the forest department took possession of the land and evicted Toto cultivators. In 1982, the demarcation of the land was done in favour of the forest department. Senior officials at Writers’ Building said that in 1981, the Totos were considered as encroachers in the ambit of the Forest Conservation Act and the government was forced to evict them. But they had no answer when asked why the government had not initiated steps to return the land to the tribal group as it can now do so under the Forest Rights Act.

Apart from the eviction from the government land, the Totos are facing a real threat from encroachers. Though transfer of tribal land is illegal, the report found that more than 72 acres of Toto land have been transferred to outsiders at a very low price. As a result, at least 88 Toto families have become landless on their own soil. And the government has not lifted a finger to protect them [20].

Most forest-dwellers who will gain rights under the FRA are in forests outside protected areas. Conventionally, in most reserved forests and many protected forests, customary and traditional rights to land and resource use have been inadequately recorded and granted. In states such as Orissa several hundred thousand hectares of land traditionally occupied or used for farming (including shifting cultivation or jhum) have simply not been recorded as such. On the contrary, they have been declared forest lands under government management in an ad hoc manner. On the other hand, there are also huge areas of actual encroachment in forest areas, both by very poor people and by powerful commercial interests. The FRA provides for recognition of “encroached” lands for scheduled tribes who can show occupation up to December 2005 and for other forest dwellers who have occupied the lands for at least three generations (seventy-five years). The conservation implications are, again, mixed. In Orissa, tribals of the Jagatsinghpur area have issued a notice that any attempt to take over their forest lands would be a violation of the FRA; this is a bid to stop the entry of the powerful POSCO Corporation, which wants to set up mines and industries there [21].

Another criticism of the FRA has been that it provides a uniform solution for the nation, whereas the local realities are vastly different in different regions. This, according to some, leaves an opening for groups with a vested interest to take advantage of the situation. Different recommendations for different regions would have been ideal, but the Joint Parliamentary Committee only had three months, which is not enough time for regional discussions and recommendations [22].

FRA, 2006 has not taken into account the fact that hundreds of forest dwelling scheduled tribes face charges under different provisions of the draconian Forest Conservation Act of 1980 for accessing minor produce. Although the FRA ensures tenurial security and legitimizes the scheduled tribes’ ownership over the minor forest produce and their role in the conservation of forest, it failed to address charges/prosecution pending against the tribals under the Forest Conservation Act of 1980 and Indian Forest Act of 1927 with retrospective effect. There is no provision in the FRA act providing that cases under the Forest Conservation Act of 1980 against the forest dwelling scheduled tribes for accessing minor forest produce would be dropped or closed. The British government, in fact, introduced the Criminal Tribes (CT) Act in 1871 and the nomadic forest tribes, like the Kheria Sabar, were brought under the purview of the Act for the British’s vested interests. After Independence, the Centre repealed the CT Act and introduced the Habitual Offenders Act in 1959. Because of this new Act, the society and the administration consider the tribal people as ‘born criminals’. There has been no attempt to repeal or to bring about changes in the existing Act or bring the tribal communities outside the purview of the Act. Police continues to treat them as suspect under the equally harsh Habitual Offenders Act. At present 37 cases are pending before the district court and Calcutta High Court against various panchayat leaders and government officials on charges of misappropriation of funds meant for the development of the Kheria Sabar community [23]. There has been no significant improvement in the living condition of these communities.

There were 2, 57,226 forest cases pending against 1, 62,692 tribals between 1953 to 30 June 2004 under Sections 26, 33 and 41 of the Indian Forest Act 1927 pertaining primarily to illegal felling of trees for domestic use and ferrying of wood by bullock carts in Chhattisgarh as on 8 November 2005 [24], and 2,531 such cases in Orissa as on 10 March 2005 [25]. The bias of the police and the forest department against the tribals is well known. In Jharkhand, a criminal case was registered against 4 minor tribal boys of Matrukha village in Giridih district of Jharkhand. The minors have been accused of destroying over 541 plants in the Purnanagar forestation area by bringing their cattle to the forest area for grazing. When the First Information Report was registered on 18 September 2002, one of the accused Sone Lal, son of Gushaw Kishku of Matrukha village was just over 14 months old. On 18 December 2006, the minor boy, along with his father, appeared before the court of Judicial Magistrate A.K. Pandey applied for bail and filed a discharge petition. By the end of the 2006, the case was pending [26].

It is important to understand what makes this act special for the communities. If it gives anything to the communities that they did not have earlier. The Indian Forest Act, 1927 always had a provision for ‘Village Forest’ area of forest earmarked for meeting the forest related subsistence use of the villagers. But these areas never got notified; their management was never handed over to the respective communities. Forest Department neglected these forests, did not invest in their management and gradually village forestlands come under cultivation due to increased population pressure. Post independence rights on forest products were given through PESA and Biodiversity Conservation act, but both have not become operational on the ground because either rules are not formed, or the accountability is not yet fixed. Regularization of cultivated forestlands, thereby transferring the ownership to the tiller, too has taken place quite frequently after independence. Similarly, legislative provisions have been made to convert ‘forest villages’ into ‘revenue villages’, except for the villages that are still not surveyed. Thus, what has been lacking in all these cases is ‘implementation’, in spirit as in reality. There is skepticism about FRA as well. Multiplicity of agencies involved in its implementation, confusion is inherent in fixing accountability. While the land belongs to forest, Tribal Ministry has been instrumental in bringing in the legislation, while implementation is to be executed by the Revenue Department along with officials from Tribal and Forest departments. So, the questions may arise, who is responsible for informing the communities regarding this act? Who is to ensure that along with the rights, responsibilities are also communicated to the communities? [27]

FRA was eagerly welcomed as a victory and a significant step forward in the large struggle of adivasi communities, seeking sovereignty over resources. For adivasi women in particular, it was supposed to give new meaning to gender and environmental justice: the right to a way of life and livelihood, and acknowledgement of their knowledge and capacities to nurture the forestscape and ecosystem.

In the execution of FRA rule [Chapter 1, Section 2 (g)], it becomes evident that it bears some serious flaws. The Forest Rights Committees were set up at the panchayat level headquarters and not the village level, which necessitated that women walk for miles to participate in the deliberations. Villages do not even get the information since no inhabitants from those areas are a part of the Forest Rights Committees. This physical distance effectively ensured poor participation of women in the actual proceedings. This exercise undermined the local democratic process of governance.

There was also no transparency about the methods used for division of land. Since the women did not personally apply for claims, they were not aware of the administrative structure prescribed in the law; a majority have had no interaction with government officials due to this reason. The women were largely unaware of the role played by the Forest Rights Committee and the Gram Sabha in processing the claim. They did not even know how to process a claim. The nature of every woman’s claim was land and land rights. The women did not know the clauses well enough. Community grazing lands and all the provisions under community land was unknown to them and the government has done nothing to change this ignorance therefore experience with the officials was reported to be satisfactory or favourable when there was proper involvement with government mechanisms. So, the additional rights are necessary to uplift the women from their situation.

In the campaign on FRA, the government machinery very deliberately chose to publicise individual rights to land, but was completely silent about the more powerful and crucial component of collective/ community rights to the forests. The government was also silent on the powers given in the act to the gram sabha for governing, managing and protecting the forests. Instead of being an empowering tool that strengthened the collective democratic rights of forest dependent communities the act was reduced to becoming yet another “government programme” of land distribution. The community rights have not been awarded properly.

Sagari Ramdas has said that, most women do not understand the government’s bifurcation of the two kinds of land. The government has two separate forms to claim for individual and community rights and the forest department and the Tribal Development authorities have neglected ensuring that awareness campaigns are accessible and effective. The threat of eviction has made every person paranoid and thus many women are compelled to believe that individual rights are more significant. The State’s agenda of suppressing the process of communities claiming their collective/community rights to the forests, as also the manner in which it exercises the power to impede the process of adivasi women to obtain rights becomes clear subsequently. It appears as if the tribals were uniformly “rejected”. This negates the very essence of these community rights embodying the adivasi relationship with ancestral territories and customary use. The ministry of tribal welfare has clearly chosen to ally with the forest department which is reluctant to lose its “property – the forest”, particularly jointly protected and managed forests [28].

One of the main failings of the FRA is that it provides for the issuance of deeds to single men or married couples. The Act has provisions for joint ownership i.e., property can be on either spouses name, it is silent about the rights of single women, whether widowed, deserted or not yet married. The dominant assumption is that developmental plans targeted at a given household ensure that the benefits of the resources are shared equitably. The power structures at the household level have been undermined while conceptualising women’s access to schemes and their level of articulation about rights.

Conclusion: FRA of 2006, therefore, did not emerge from unproblematic and consensual deliberations. Rather the struggle to pass the act, and to keep the key elements intact, was fraught with intense contestation. Central to the process of policy development in this case has been the use of collective pressure through an unusual coalition of interests spread across the states of India, which ultimately paved the road to the new institutional settlement. The case of the FRA throws light on the importance of ‘protest’ or ‘campaign’ politics in India, and the simultaneous importance of activists to form effective ‘coalitions’ involving individuals and groups in order to influence the course of legislation. While the preponderance of politics in matters of economic decision-making gets highlighted, the process underlying the legislation of the FRA also reveals the multi-actor and multi-layered (given the federal structure of the Indian polity) nature of the Indian State and the significant role of intra-state politics in promoting or thwarting pro-poor institutions [29]. The ability of tribals to defend their rights and livelihoods has therefore been very weak, and recourse to protests, both peaceful and violent, constituted one of the few avenues through which to seek redress [30].

To be precise, then, this Act would also in this respect neither benefit the tribal communities nor enhance conservation, but would promote only the interests of the non-tribals. The Act is silent on restoration of lands from non-tribals, occupied prior to the cut-off date [31]. The Act is rather silent about the plight of the more than one third of the tribal population who have lost their land over the period. They have been left with no option but to go further into the forest – or to migrate elsewhere. In the Indian context, the political economy of land and the societal power relations associated with its possession need not be emphasized. Hence, any attempt towards achieving developmental objectives should necessarily commence from restoration of the now alienated erstwhile tribal occupied lands. Equally important is the need to ensure a participatory approach and an efficient delivery system.

Ever since the FRA was enacted, the Government of India and state governments have been claiming it as a major victory for tribal peoples’ rights in India. But this law will not be able to resolve tribal peoples’ human rights and livelihood issues without similar or greater advancement in law and administration in other areas (which are intrinsically linked with tribal peoples’ rights) such as land acquisition, development-induced displacement, and political autonomy. The proposed National Rehabilitation and Resettlement Bill, 2007 was a positive step toward improving land laws that affect tribal people directly [32].

The greatest value of the FRA is that it effectively recognizes rights of forest dwellers who previously were considered encroachers on state land. The Forest Department had powers to expel them without paying appropriate compensation, and such expulsion had taken place mainly when they did not have sufficient evidence to prove their right to ancestral land [33]. Corrupt practices, bribery, and tribal vendetta often influenced such actions. Unfortunately, however, the FRA has not taken into account those thousands of forest dwellers who face charges under different provisions of the Indian Forest Act, 1927 and Forest Conservation Act, 1980 for illegal felling of trees, encroachment, and collecting minor produce. There is no provision in the FRA that would close or drop such charges against forest-dwelling scheduled tribes. There were 257,226 such cases pending against 162,692 forest dwellers and other tribal people under sections 26, 33, and 41 of the Indian Forest Act 1927 by 2004 [34].

Although the FRA seeks to strengthen forest conservation by giving powers to forest-dwelling communities to protect forests, such powers are in addition to not instead of the powers that the Forest Department and other government agencies possess, thereby creating room for a clash between communities and the Forest Department. This can happen if forest dwellers disagree with government’s decisions to transfer forest land to development projects. In this regard, the FRA stipulates that the government should obtain the “free informed consent” of affected forest dwellers and their village councils for such transactions (section 4(2) [e]). However, a framework for how to obtain free, informed consent of affected forest dwellers has not still been formulated by the government. The marginalized status of forest dwellers and other tribal populations, the powers vested in Forest Department officials regarding forest management, and the higher political, economic, and social status of the rural elite will make it difficult to formulate such a consultation frame work and to apply it.

Section 4(2) (d) of the FRA stipulates that the displacement of tribal people may occur only after a resettlement or alternative package has been prepared in consultation with them. The package must ensure that affected communities will have appropriate income and livelihood sources. It will fulfil “the requirements of such affected individuals and communities given in the relevant laws and the policy of the Central Government.” Section 4(2) (f) says that “no resettlement shall take place until facilities and land allocation at the resettlement location are complete as per the promised package.” This is a great improvement in land acquisition, compensation, and rehabilitation of project-affected forest dwellers. However, its application in association with the Land Acquisition Act of 1984 could lead to the payment of only cash compensation at the statutory value of land decided by the local government administrators, which is often substantially lower than the replacement cost of such property.

Several agencies—both private and public—have challenged the FRA in high courts in several states and in the Supreme Court of India on several grounds. In March 2008, the Supreme Court told the central government and the state governments to respond to several petitions that challenged the constitutional validity of the FRA in permitting allotment of forest land to tribal people. The argument is that land administration is under the purview of a state government; therefore, the central government cannot allocate or decide the size of such allocations. In another petition, a group of wildlife organizations—Wildlife First, the Nature Conservation Society, and Conservation Trust—challenged in 2008 the legal and constitutional validity of the FRA on the grounds that it violates the fundamental rights of the citizens guaranteed under Article 14 (“The State shall not deny to any person equality or equal protection of the laws within the territory of India”) and Article 21 (protection of life and personal liberty) of the Indian Constitution, as it is against the principles of “sustainable development”. It will take several months, if not years, to know how the judiciary views such challenges based on a broad interpretation of the fundamental rights of citizens.

Notes and References

1. Hindustan Times, May 14, 2006

2. ‘Did Governors’ Ignorance Fan Maoists?’ The Statesman, October 19, 2010

3. Development Challenges in Extremist Affected Areas, Report of an Expert Group to Planning Commission, Government of India, New Delhi, April 2008. Chapter-5, No. 5.1.1, P-69 http://www.planningcommission.gov.in/reports/publications/rep-dce.pdf downloaded on February 15, 2011.

4. Bhullar, Lovleen. ‘The Indian Forest Rights Act 2006: A Critical Appraisal’, Law, Environment and Development Journal (2008), Vol- 4/1, p. 20, available at http://www.lead-journal.org/content/08020.pdf downloaded on April 12, 2011

5. Patnaik, Sanjoy, Regional Centre for Development Cooperation, (2007): PESA, the Forest Rights Act, and Tribal Rights in India, Proceedings: International Conference on Poverty Reduction and Forests, Bangkok, September, available at
http://www.recoftc.org/site/fileadmin/docs/Events/RRI_Conference/Proceedings/Paper_18_Patnaik.pdf downloaded on April 14, 2011

6. Economic Times Friday, April 14, 2006

7. Savyasaachi (2011) ‘Forest Rights Act 2006: Undermining the Foundational Position of the Forest’ in Economic & Political Weekly, April 9, pp. 55-62

8. Bela Bhatia (2005), “Competing Concerns”, Economic & Political Weekly, November 19, pp. 4890-93

9. Bela Bhatia, op cit; Mihir Shah (2005), “First You Push Them In and Then You Throw Them Out”, Economic & Political Weekly, November 19, pp. 4895-99

10. Available at http://www.forestrights.gov.in downloaded on March 25, 2011

11. Gopalakrishnan, S. (2010) Forest Areas, Political Economy and the “Left-Progressive Line” on Operation Green Hunt, Radical Notes, May 30, 2010

12. Gopalakrishnan, S. (2010), Rights Legislations and the Indian State: Understanding the Nature and Meaning of the Forest Rights Act. Briefing prepared for mass organizations, distributed by SRUTI, available at http://www.sanhati.com downloaded on April 16, 2011

13. See the Campaign for Survival and Dignity website http://www.forestrightsact.com/component/content/46?task=view, and http://pib.nic.in/release/release.asp?relid=69078 downloaded on April 16, 2011.

14. Patnaik, Sanjoy (2007): PESA, the Forest Rights Act, and Tribal Rights in India, Proceedings: International Conference on Poverty Reduction and Forests, Bangkok, September downloaded on April 14, 2011

http://www.recoftc.org/site/fileadmin/docs/Events/RRI_Conference/Proceedings/Paper_18_Patnaik.pdf

15. ‘India’s Forest Rights Act of 2006: Illusion or Solution?’ Embargoed for: December 15, 2006, Asian Indigenous and Tribal Peoples Network (AITPN), New Delhi. http://www.aitpn.org/Issues/II-09-06-Forest.pdf accessed on April 16, 2011

16. ‘Tribals Feel Betrayed by Rights Law’, The Hindu, December 20, 2006

17. Archana Prasad, ‘Survival at Stake’, Frontline, January 12, 2007, page 4

18. Data collected from my field study in Purulia.

19. Anandabazar Patrika, April 14, 2011

20. No Forest Rights Act cover for dwindling Totos, The Statesman, April 4, 2011

21. The Times of India, August 10, 2008

22. Kothari, Ashish, Neema Pathak and Arshiya Bose (2009) Forests, Rights, and Conservation The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006, India, Kalpavriksh Pune/Delhi, July

23. ‘Repeal Habitual Offenders Act: Leaders, social activists’, The Statesman, September 16, 2011

24. Over two lakh forest cases against Chhattisgarh tribals to be withdrawn, The Hitavada, November 11, 2005

25. Naxalite bodies demand probe into police firing, The Statesman, March 14, 2005

26. Criminal case against 5-year-old, The Hindustan Times, December 21 2006

27. Ghate, Rucha (2009) Paper Presented at WOW-IV June 3-6, Working Group The Politics of Authority, Land, and Natural Resources: Broadening the Analysis Decentralizing Forest Management: Pretense or Reality? In the context of Forest Rights Act in India – SHODH, Nagpur, available at http://www.indiana.edu/~wow4/papers/ghate_wow4.pdf downloaded on May 9, 2011

28. Ramdas, Sagari R (2009): Women, Forestspaces and the Law: Transgressing the Boundaries, Economic & Political Weekly, October 31.

29. Bose, Indranil (2010) ‘How did the Indian Forest Rights Act, 2006, emerge?’, Discussion Paper Series Thirty Nine, May 2010 Institutions for Pro-Poor Growth (IPPG) Discussion Papers available at www.ippg.org.uk downloaded on April 14, 2011

30. Guha, Ramchandra (2007) ‘Adivasis, Naxalites and Indian Democracy’, Economic and Political Weekly, August 11.

31. Saravanan, Velayutham (2009) “Political Economy of the Recognition of Forest Rights Act, 2006: Conflict between Environment and Tribal Development”, South Asia Research, Vol-29(3), New Delhi: Sage Publications, pp.199–221.

32. The National Rehabilitation and Resettlement Bill, 2007 was approved by the lower house of Parliament in 2009. It specifically addresses the land rights of tribal people and special procedures that should be followed in acquiring their territories. In February 2009, the bill was rejected by the upper house of Parliament.

33. Leelakrishnan, P (2002) Environmental Law in India. Delhi: Lexis Nexis Butterworths

34. Ghosh, Soumitra. 2006. India: The Forest Rights Act, A weapon of struggle. National Forum of Forest People and Forest Workers (NFFPFW) and Campaign for Survival and Dignity (CSD), Delhi, India

5 Comments »

5 Responses to “Tribals and Green Governance: Forest Rights Act, 2006”

  1. Dibyendu Dalal, MCA Says:
    October 22nd, 2011 at 9:53 am

    I am congratulating the author of this article for making such a vivid study on a very important and contemporary issue. The article is quite brilliant and I wish her all the success.

  2. ANJAN GHOSH Says:
    January 24th, 2012 at 6:46 am

    I am working in Govt. of West Bengal in Land Reforms Dept. and Editor of a bi-monthly periodical “BHUMI BARTA” published by our Officers Association. Ihave gone through your instant article and it is a excellent write up. There was some instances of preservation of forest dwellers right in ‘Chhotonagpur Tenancy Act ” which was enacted by foreign ruler and after that everything was bleak.Would you be kind enough to provide our publication some of your article on this aspect.

  3. Debasree De Says:
    April 2nd, 2012 at 12:59 pm

    I am really obliged having some wonderful comments. I will surely write in Bhumi Barta. Please let me know your address or email id for correspondence.

  4. Sushovan Dhar Says:
    May 8th, 2012 at 2:35 am

    Your article is really impressive. We are also working on the issue of forest rights. I wanted to contact you. My email id is : dhar.sushovan@gmail.com

  5. ANJAN GHOSH Says:
    August 1st, 2012 at 6:54 am

    sorry , Debasree , i could not check up the mail for a long time . so it took long time to write back . my e-mail address is aghosh047@gmail.com. in the coming issue of ‘bhumibarta’ we are going to publish an article on failure of implementation of ‘ PESA 1996′ in the V scheduled areas and if you mail me your postal add. then i can send the issue or other back issue. eagerly waiting for your writing in Bhumibarta .