Forest Rights Act – Rules and reality

IN 2006, the people of Chinchgaon, a hamlet in Bemetra district of Chhattisgarh, finally felt at peace. Like in any traditional forest village, Chinchgaon’s residents depended on part-time agricultural activity and on collecting and selling minor forest produce like tendu leaves and mahua, which was considered illegal by the Forest Department until 2006. As the government took over all the forest land after Independence, they had become encroachers in their own land and their dependence on the forest was deemed illegal. The forest guards still allowed them to live in their villages but at terrible costs. “We were not allowed to venture into the jungle to get our resources unless we bribed the forest guard. We would give the forest officials all they needed. They would often abuse our women and children. It was nothing less than bonded labour. We had to give up a huge share of our paddy to the forest guards just to ensure our safety in our own village,” said Panchram Rathiya, a resident of Chinchgaon who is one of the few literate ones in the village. However, when the government passed The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act or FRA in 2006, it seemed to set right the historical injustice done to forest dwellers like Chinchgaon’s residents.

Once the rules of the FRA were notified in 2008, 29 out of the 32 Adivasi families who depended on forest resources in Chinchgaon staked their claim to their customary land and community rights. Most of these families cultivated around six acres (one acre is 0.4 hectare) of forest land and they claimed ownership of it. After a long bureaucratic haul, when finally they got their land certificates, it was much less than what they had wanted: only around two acres of land was given to them. And they were denied their customary right to use water bodies and forest resources, as mandated in the FRA. The villagers felt cheated and thought the FRA was yet another way to deny them their right to live in their own village.

Chinchgaon’s story is a typical one of how the FRA is implemented across the country. Riddled with procedural delays, bureaucratic complications, and corruption, the FRA’s implementation has been back-breaking for the Adivasis and other forest dwellers in the five years of its existence. The FRA guarantees ownership rights for forest dwellers. It not only ensures individual land rights for the villagers but also guarantees community rights, which include the right to use waterbodies, and gather minor forest produce and the right of the villagers to conserve and protect the forests. It gives overwhelming powers to the gram sabhas to take decisions. To prevent any derailing, the Ministry of Tribal Affairs (MoTA) was made the nodal agency for its implementation. This, in effect, substantially reduces the powers of the Forest Department under the Ministry of Environment and Forests (MoEF). However, resistance and interference from the Forest Department at every level, the interests of government-backed corporate groups and the land mafia in forest land and the resultant conflict between the interests of the MoEF and the MoTA have scuttled the Act’s implementation. This has led to many violations of the Act’s provisions.

Violations

In most villages, an individual’s right to cultivable land in forests have been ignored in different ways. Firstly, in many places, the claims of the villagers were disregarded or delayed without any reason. A claim has to pass through a subdivisional-level committee and then a district-level committee. There are many instances where one of these committees either did not admit claims, or sat on the forms for months without taking a decision. The rejection rate of claims is very high. Secondly, the claims of the Adivasis and other forest dwellers were substantially reduced by the administration despite gram sabhas’ approval. This is a blatant violation of the Act as it does not allow the administration to supercede gram sabhas’ decision. Thirdly, the land identified as a village’s was much less in many States due to faulty GPS (global positioning systems) or forged revenue records, thereby limiting the scope of an individual’s claims. Fourthly, in many States, villagers were asked to furnish written proof to validate that they had been staying in a village for more than 75 years. In most cases, Primary Offence Reports (PORs) given by the Forest Department for illegally encroaching on forest land is the only proof that is being accepted as evidence. However, the Act provides for 11 different types of evidence, one of which is a person’s physical presence in a village approved by the gram sabha. “The Act says that villagers can appeal against any non-implementation, but in reality there is no institutional mechanism to do that. No awareness programmes for villagers have yet been introduced. The villagers are never given valid reasons when their claims are rejected,” said Tushar Dash, team leader at Vasundhara, a Bhubaneshwar-based environment advocacy group.

Another important violation of the Act is the complete disregard for the community rights of forest dwellers. Since Adivasis have always depended on forest resources, the Act categorically gives forest dwellers access to minor forest produce, waterbodies, and traditional forest temples. “This is one component of the Act that is completely derailed by the administration. The FRA mandates that forest dwellers should get not just ownership of land but also autonomy for their villages, which were under the jurisdiction of the Forest Department earlier. It is a well-known fact that Adivasis are vulnerable to exploitation by forest officials. That is why community rights are so important. However, the administration is treating the FRA as a land distribution scheme at best, without understanding the real problems of Adivasis,” said Ramesh Sharma of Ekta Parishad, an advocacy organisation working on land reforms in central India.

Even today, forest officials deny villagers their right to access forest resources, says a report prepared by Vikas Samvad, a media advocacy organisation. It said that villagers had to bribe forest officials regularly to enter the forests for their daily needs. Sometimes, they are stopped from catching fish in the local waterbodies and sometimes they are beaten up for visiting their temples, which are generally located in dense jungle.

Administrative failure

The violations of the FRA are happening systematically, using loopholes in the administrative system. For example, the gram sabha is constituted at the wrong level. The FRA clearly says that the gram sabha should be the first unit at the hamlet level but in most places, gram sabhas have been constituted at the panchayat level, which is usually represented by non-Adivasi communities who work against the interests of Adivasis. “Only two States have attempted to implement the requirement of hamlet-level gram sabhas in tribal areas. Kerala has permitted tribal ward sabhas and ‘Oorukoottams’, meetings of a neighbourhood of 50 or more tribal people, to function as gram sabhas for the purposes of the Act. Gujarat has also directed that hamlet-level gram sabhas should be considered in scheduled areas where demanded by the community concerned, though it is unclear how many such gram sabhas have in fact taken place,” says a report prepared by the New-Delhi based Council for Social Development (CSD), a research organisation.

Similarly, under the rules, gram sabhas have to elect a forest rights committee (FRC) to oversee the implementation of the FRA at the hamlet level. But the Forest Department has converted its Joint Forest Management Committees (JFMC)—notified in 1990 as a mixed body comprising villagers and forest officials to manage the forest resources and chalk out a revenue-sharing model —into FRCs to manipulate the rights recognition process. The department does this by taking signatures from a few members of the gram sabha and the panchayat president.

Resistance from the Forest Department is manifest in different ways. The CSD report states that claimants to forest land are not entertained until they figure in the Forest Department’s “encroachers” list. Forest officials occupy key implementation posts in the State and the Central tribal welfare departments. Forest officials have appointed themselves at both the subdivisional-level and the district-level committees. More often than not, they try to apply contrary pieces of forestry legislation to subvert the FRA. Madhya Pradesh is a case in point.

The FRA mandates that villagers should not be relocated in protected areas such as national parks and tiger reserves but in many instances they have been relocated by the Forest Department. Tadoba in Maharashtra and Simlipal in Odisha are cases in point where a vast number of forest dwellers were relocated. “This indicates that the government does not believe in the spirit of the FRA. They think that forest dwellers are the ones who destroy forests. In our experience, though, we have found that it is the Forest Department that has ruined the jungles, much more than Adivasis,” said Dash.

Land diversion

Similarly, in the last few years, there has been a huge diversion of forest lands for mining, even before gram sabhas had been formed and the process of recognising the rights of Adivasis had begun. This violated the spirit of the FRA. Dash said: “We have noticed such diversion and denial of rights at a much bigger scale ever since the Union government cleared the Cabinet Committee on Investment in December 2012 to attract multinational corporate investment.”

The government’s urgency to attract private investment to develop forest areas has undoubtedly had a catastrophic effect on the implementation of the FRA. A forest rights advocacy group, Campaign For Survival and Dignity (CFSD), states in a press release following a public hearing and protest in Delhi in January, 2014: “After January 1st, 2008, 1,97,916 hectares of forest land has been handed over for projects by the Central Environment Ministry. When asked in 2011 for records showing that this was legally done, the Environment Ministry said it had no records. Between 2008 and April 2013, more than 40,000 hectares of forest land was diverted in States where no titles had been recognised under the Forest Rights Act at all.”

According to Shankar Gopalakrishnan of CFSD, “It is a confirmed fact that the diversion of every single hectare in these States was illegal. Yet, the Environment Ministry carries on diverting forest land. The same is true of most of the takeover of forest land in other States (8,814 ha in Madhya Pradesh; 11,159 ha in Rajasthan; 18,347 ha in Chhattisgarh; etc.). In case after case where the Central government’s own inquiries and committees found that the takeover was illegal, the projects have been cleared anyway. Examples include the POSCO project, the Mahan coal block in Madhya Pradesh, and the Polavaram dam project. The FRA requires that forest land can only be diverted after the affected gram sabhas have certified that all forest rights have been recorded and given their informed consent to the diversion. The Supreme Court also ruled that this was required, in April 2013, and the Environment Ministry said the same in its order of July 30, 2009.”

In Odisha alone, forest land has been diverted for more than 50 different corporate projects. Chhattisgarh, despite a good record on paper, has diverted vast stretches of forest land for mining or power projects. It is also one of the bigger States to have illegally instituted gram sabhas at the panchayat level. Several other States, including Goa, Tamil Nadu, Jharkhand, Himachal Pradesh, Uttarakhand, Karnataka and Himachal Pradesh and some north-eastern States, have not even begun to implement the FRA.

Despite such failures, the monitoring mechanisms of the FRA remain less than adequate. The MoTA does a data-based survey every three months. The data are provided by the State’s Chief Secretary, who heads the State-level monitoring committee. The Chief Secretary relies on the district committees and the subdivisional committees, where all the violations occur. “Obviously, the lower committees fudge data in unimaginable ways. In Odisha, for example, the State-level monitoring committees have met only four times in the last five years. Do you think an honest appraisal of implementation is possible in this way?” asked Tushar Dash. Unlike other socially sensitive legislation, there is no process of social audit for the FRA.

Noting these violations of the FRA, the National Advisory Council (NAC), after consulting many civil society groups, recommended a new set of rules in 2012. The rules prohibit Forest Department officials from demanding transit permits for transport of minor forest produce from villagers. The permits would also be given now by the gram sabha. Gram sabhas can also make plans for forest conservation and protection now. Forest management is no more the sole responsibility of the Forest Department. In an important step, the new rules categorically say that the Forest Department can no longer demand documentary evidence from claimants. However, some activists believe that the new rules have some faulty provisions too. For example, the rules now allow the Collector to decide when forest rights have been recognised and which gram sabhas to take consent from. This violates the spirit of the FRA as it overrides the powers of the gram sabha. In many circumstances, it has already been found that Collectors have acted in cahoots with the Forest Department to derail the provisions of the FRA.

The problem with legislation like the FRA is that it requires greater decentralisation of governance, with a central role for the gram sabha. However, the existing top-heavy bureaucracy, often corrupt and casteist, thinks of the FRA as an impediment. “That the officials have to go to the gram sabha, and not the other way round, was unheard of in the rural hinterland. The babus are smug about their administrative superiority. Most of them think of forest dwellers, especially Adivasis, as inferior human beings. Proper implementation of the FRA would mean that the babus will have to shed their feudal prejudices,” Sachin Jain, a media activist in Bhopal, told Frontline.

While there is the non-implementation of the FRA due to feudal prejudices on the one hand, there is also the constant clash of interests between the MoEF and the MoTA at every juncture on the other. The FRA questions the powers of the Forest Department, which had full control over forest resources. Not surprisingly, when the 2010 N.C. Saxena-headed joint committee comprising representatives from both the Ministries recommended some new rules to correct the FRA’s implementation, the MoEF objected to all the recommendations with regard to forest governance. As a result, the committee report was put on the back burner.

Sachin Jain remembers an incident: “The response of a forest guard whom I talked to a few months ago is telling. He clearly said that the FRA means distribution of all forest land to Adivasis. How is it possible?” In a way, the forest guard’s version of FRA is not far from truth. Indeed, the FRA was enacted to reverse the historical injustice that Adivasis and other forest dwellers have had to face in the last 65 years. And it is the fight for dominance over resources that sums up the tussle between the MoEF and the MoTA. However, this tussle is reflected aggressively on the ground. The Forest Department under the MoEF, in trying to scuttle the implementation of the FRA, often responds violently to assertions by tribal groups. This resistance of the Forest Department and the lack of political will entail vicious, corrupt practices to subvert the law, a sadistic denial of rights to Adivasis, and greater abuse of forest dwellers.