Illustration: Deepak Harichandan   | Photo Credit: Deepak Harichandan

On the tenth anniversary of the historic passage of the Forest Rights Act, tribal resistance to defend their rights is growing even as government after government tries to dilute its provisions

On this day 10 years ago the historic Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act was passed in the Lok Sabha. Its conception and passage was the result of the decades of struggles and sacrifices of millions of tribals across India, of their organisations, of numerous activists and intellectuals working on tribal issues, and because of the commitment and efforts of the Left parties.

Attempts at dilution

A century ago colonial chicanery had turned tribal owners of the forests and its resources into encroachers. A decade ago, the Indian inheritors of this legacy of fraud were working against the Bill till literally the last moment. The real encroachers and plunderers of the forests, the mining companies, the private power sector companies, those involved in irrigation projects, the timber and paper industries, the forest resort tourist industry had high stakes in preventing the passage of the Bill. They were in the company of fundamentalist wildlife and environmentalist groups with their close links with the powerful forest bureaucracy. They made a motley though influential crowd and had the ear of very important people in the United Progressive Alliance (UPA) government hierarchy.

They succeeded in diluting some important recommendations of the Parliamentary Select Committee on community forest rights, access to minor forest produce and so on. The clause that Non-tribal Traditional Forest Dwellers would have to show evidence of their occupation of the land for 75 years virtually negated the inclusion of these largely poorer sections, many of them Dalits, in the law. The Left had proposed that for these sections the Supreme Court-proposed cut-off year of 1980 would be appropriate, while for tribal communities the cut-off year should be 2005. But at the last moment the government surreptitiously brought in the three generation or 75-year clause.

The Bill with these obnoxious clauses was circulated and listed for immediate discussion and passage. As soon as we saw it, the Chairman of the Select Committee, Kishore Chandra Deo, and I rushed to the chamber of Pranab Mukherjee, then External Affairs Minister, who was the point person for the Bill on behalf of the government in the negotiations with the Left. There was a mini-drama and heated discussion which finally ended with the arrival of the Tribal Affairs Minister, P.R. Kyndiah, who had been summoned by his senior. In the discussions he assured us that he would move amendments to the Bill. At that time there was no choice but to accept the assurance at face value. It had taken more than a year of struggle to finally get the Bill included in the business agenda of Parliament and listed. The powerful lobbies against the Bill would have used our opposition to once again shelve it. The Bharatiya Janata Party (BJP) was playing a duplicitous role — its Adivasi MPs supported the Bill while others were dead against it. They ran a campaign among MPs from the Northeast that if passed, the law would legalise encroachment by “illegal Bangladeshis”. This was utterly misleading, but anything was fair in the war against tribal rights.

The missing amendments

The Bill became law, but without the amendments promised. After much discussion and pressure, some of them were included in the Rules. This also was a big struggle and there was a strong group of activists who along with the Left representatives could work out a fairly good set of Rules. It included giving prime importance to the role of the gram sabhas.

In spite of its inadequacies, there can be little doubt that the Forest Rights Act (FRA) stands as a powerful instrument to protect the rights of tribal communities. It is a hindrance to corporate interests to their free loot and plunder of India’s mineral resources, its forests, its water. But the Narendra Modi government is systematically implementing its plan to weaken and dilute the Act in several ways.

New attempts at dilution

First, it has brought a series of legislation that undermine the rights and protections given to tribals in the FRA, including the condition of “free informed consent” from gram sabhas for any government plans to remove tribals from the forests and for the resettlement or rehabilitation package. The laws were pushed through by the Modi government without any consultation with tribal communities. They include the amendments to the Mines and Minerals (Development and Regulation) Act, the Compensatory Afforestation Fund Act and a host of amendments to the Rules to the FRA which undermine the FRA. The requirement of public hearings and gram sabha consent has been done away with for mid-sized coal mines. BJP State governments and partners in the National Democratic Alliance such as the Telugu Desam Party government in Andhra Pradesh have introduced government orders to subvert the FRA. In Telangana, in total violation of the FRA, the government has illegalised traditional methods of forest land cultivation. The Jharkhand government has brought amendments to the Chotanagpur and also the Santhal Pargana Tenancy Acts which eliminate rights of gram sabhas and permit tribal land to be taken over by corporates, real estate players, private educational and medical institutions in the name of development, without tribal consent. In Maharashtra the government has issued a notification of “Village Rules” which gives all rights of forest management to government-promoted committees as opposed to the gram sabha. This is the law-based offensive.

Second, there is the policy-based war. The Modi government has declared its commitment to ensuring “ease of business”, which translates into clearing all private sector-sponsored projects in tribal-inhabited forest areas. The National Board for Wildlife, with the Prime Minister as Chairperson, was reconstituted,slashing the number of independent experts from 15 members to three, packing it with subservient officials. In the first three months of assuming office, the Modi government cleared 33 out of 41 proposals diverting over 7,000 hectares of forest land. Of this the major share was for Gujarat companies. In two years the clearances for projects have included “diversion” — or more appropriately land grab — to the extent of 1.34 lakh hectares of forest land. In many areas this will lead to massive displacement of tribal communities. In the multipurpose Polavaram project in Andhra Pradesh alone, now given a national status by the Central government, 2 lakh hectares of forest land will be submerged affecting around 85,000 families, more than half tribals, including 100 habitations of particularly vulnerable tribal communities. In almost all these projects, the affected tribal families have not yet received their pattas (land ownership documents), one of the conditions set by the FRA. This wilful disregard and blatant violation of the legal protections given to tribals has become the cornerstone of the policy.

Third, there is the deliberate freeze of the actual implementation of the FRA. Neither individual pattas nor pattas for community forest resources are being given. During the UPA-II government the implementation of the Act was virtually hijacked by the Ministry of Environment and Forests and rejections of claims increased. However, now the situation has worsened, and the rate of rejections has gone up during the Modi regime. According to one analysis, between May 2015 and April 2016, eight out of every 10 claims were rejected. This is the ‘Gujarat model’ in operation. The State has one of the worst records in implementation of the FRA. Although 98 per cent of the approximately 1.9 lakh tribal claims had been approved by the gram sabhas, the bureaucrats in the sub-divisional committee and above brought the acceptance down to just 38 per cent. This is in sharp contrast to a Left-led State such as Tripura, where 98 per cent of tribal claims have been recorded and titles given.

Mixed signals from the judiciary

The judiciary has also had a role to play. The same institution, which gave tribals hope through the Samata judgment, the historic Niyamgiri judgment, has also clubbed together a number of hostile petitions to the FRA and is giving them a sympathetic hearing. In January last year the court in an ominous intervention in a writ petition filed by Wildlife Trust of India and others issued notice to all State governments to “file an affidavit giving data regarding the number of claims rejected within the territory of the State and the extent of land over which such claims were made and rejected and the consequent action taken up by the State after rejection of the claims”.

This has rightly been taken by tribal communities and their organisations as a prelude to mass evictions. Maharashtra issued a notification dated April 23, 2015, directing the police to take action against “identified encroachers”, namely those whose claims have been rejected. Till 1985, the department of “Tribal Affairs” was under the Home Ministry. Tribal rights and struggles for justice were viewed as a “law and order issue, always a problem”. Under the present dispensation this retrograde approach seems to have been resurrected.

On the tenth anniversary of the historic passage of the FRA, tribal resistance is growing all over the country to defend their rights under FRA and other related issues.