Implementation of the Forest Rights Act
This article looks into the implementation of the Forest Rights Act based on a critical review of literature. Besides examining the process of implementation of the Act, it also attempts an overview of the issues involved and the challenges ahead.
Madhusudan Bandi ([email protected] gidr.ac.in) teaches at the Gujarat Institute of Development Research, Ahmedabad.
This article is part of a larger research study, “Critical Assessment of the Forest Rights Act, 2006 and Its Impact on Livelihoods of the Forest Dependent Communities: A Comparative Study of Chhattisgarh and Gujarat”, being carried out at the Gujarat Institute of Development Research, Ahmedabad. The study is sponsored by the Research Unit for Livelihoods and Natural Resources (supported by the Jamsetji Tata Trust, Mumbai) at the Centre for Economic and Social Studies, Hyderabad. I acknowledge RULNR for this support. I also wish to thank Rohit Desai, Kailash Sarap and P K Viswanathan for their valuable comments on an earlier draft.
God Created the Earth
We Are Children of God
Pray, Where from Has
the Government Appeared?
– B D Sharma1
The phrase “historic injustice done to forest-dwelling communities” was the highlight of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, also referred to as the Forest Rights Act (FRA). Acknowledged by this Act, the sufferings undergone by the forest dependent people (FDP) since the advent of modern forest administration under the British, and unfortunately carried forward into independent India, have been a reason of great regret.
However, 2007 could be said to have been a new beginning, when the Ministry of Tribal Affairs (MoTA) got the Act (interchangeably used for FRA henceforth in the text) enacted. The Act holds promise of realising claims of tribal and other forest dwellers2 over the dwelling and cultivation lands under their occupation. They are also to benefit from complete ownership rights on non-timber forest produce (NTFP)/minor forest produce (MFP), and management and protection rights over forest resources, including community rights.
The process of implementation of this Act begins right from the gram sabha (GS) level, where Forest Rights Committees (FRCs)3 are constituted and authorised to assist the GS collate, verify and approve claims to rights as required. As per the Act, the GS in the scheduled areas (SAs)4 must be convened at the hamlet level, while in the traditional villages it has to be at the village level. However, in many instances, this was done at the panchayat level, which is altogether illegal. In the same way, the village-level officials were found to be not exercising their powers properly, thus diluting the purpose of the Act (CSD 2010).
The state level monitoring committees, whose role is to assess whether the FRA’s implementation is taking place as it should be, devise the criteria and indicators for monitoring the rights recognition. After this, the tribal departments of the respective states develop qualitative indicators, and then the rural development and forest departments (FDs) do justice to the claimants. In many places, however, this process is being ignored, resulting in the denial of many claims of the poor at the initial stage itself (ibid).
With regard to representation of women in the FRCs, there appears to be complete overlooking of their share in most of the states, the usual story being inadequate or complete absence of women. Moreover, the GSs are also being convened without their attendance (GoI 2010). All this is happening when the fact is now well-established that women (about 60-70% (Gera 2002)) are the main contributors to the tribal economy through MFP collection and sale (Venkateswaran 1994; Ghosh 2008; Khare 1987; Malik 1994; Saigal 1998), as is the fact that the main forest-based livelihood activity is MFP collection and its sale.
As per the Act, the FDs have only a negligent role in the implementation process of the FRA. They are required merely to be present with the FRCs during the verification stage. Even this presence is not mandatory according to the rules, and will not imply on the decision of the FRC.
However, in total disregard to the Act, the FD is seen to be functioning as “veto” in denying rights to the people, and by rejecting their claims at the screening stage itself (CSD 2010; GoI 2010; Writ Petition 2011). Hence, it could be said that though, ostensibly, this Act appears to be people-oriented, the final shots are called by committees of bureaucrats, elected representatives, and the FD, which incidentally was never in favour of this Act. Some observers of the working of the GS on the ground are apprehensive, that vesting the GS with powers to decide rights and to grant pattas on land could lead to corruption and abuse of power (EPW 2007).
Such assumptions could be because government departments like the FD also use them as pretexts in order to justify their actions and with the intention of not letting go of their authority. On other hand, the pro-FRA lobbyists go a step further to recommend empowerment of the GS and a complementary role for the Panchayats Extension to the Scheduled Areas5 to enhance the implementation process to be a hassle-free one (Singh et al 2010).
Among the many concerns plaguing the FRA, rejection of the claims for various reasons, most of the time on flimsy grounds, has hampered the recognition of rights to the claimants in a big way. This is seen to be happening because of the hasty enquiries made (or not made at all?) by the officials. The agony of the rejected claimants is compounded in such cases where they are not given an opportunity to appeal (Saxena 2010).
The misuse of Section 4(5) of the Act is another much-talked-about issue. It deals with eviction, and many times, is used against the claimants without proper investigation. Then, there are allegations against the FD for taking over non-forestland, where there is some tree cover, which is also leading to confusion about what actually are forest areas (EPW 2007). As per the estimation, around 50 districts in the country have dense forest cover that, incidentally, is also thickly populated by tribals (ibid). On applying such kind of logic to take over the land, the main stakeholders, for whose purpose this Act has been legislated, stand defeated.
Community rights were expected to be equally in demand as individual rights because these rights would provide secure livelihood avenues to the FDP through forest resources (Kothari 2011). However, the ground reports suggest otherwise because people failed to take advantage of this provision to the fullest, besides their fallacy of seeing “land first” before other rights (Kalpavriksh 2008).
According to Kothari (2011), from the estimates of a decade-old forest survey report, there should have been about 1,70,000 community claims as forests were within the boundaries of so many villages. However, only 50,000 claims were recorded with the MoTA. The reasons for the poor implementation were: the FD threatened the communities with losing out on Joint Forest Management (JFM) funds if they claimed rights on forest resources; the FD’s indifferent approach in facilitating community claims, which could also be a result of community empowerment, or the fear that the community may not protect forests (ibid). However, many studies have proved that the JFMs that already had resources under the community are being managed sustainably.
Curiously, these very community initiatives are now being misused by the state governments through compensatory afforestation schemes on those lands, only to obstruct the smooth implementation of the FRA, as there are numerous cases of people having claims over the present JFM lands (Ramdas 2009). Moreover, the civil society also focused more on individual rights than on community rights, because the former hogged all the political attention.
More glaringly, the “community” also appeared to not own the responsibility for community resources because, in many cases, they have open access to it. Moreover, they saw management of community resources as the government’s responsibility and not theirs (GoI 2010).
Although the FRA is an Act in itself, there is scope for other already existing laws to prevail upon the Act. This happens especially with the overlapping laws on conservation and sustainability of wildlife and forests. An example is the functioning of the district-level committees,6 a prime decision-making body in the implementation of the FRA. It faces a challenging task in regularising the rights given by the provisions of the Forest Conservation Act (FCA) 1980, wherein giving away rights post-1980 becomes a tough process.
It is a different matter that Gupta (2006) does not see the FCA 1980 having made any substantial inroads to protect the forests. Gupta gives an account of how in actuality 40,000 ha of land has been diverted annually for non-forestry purposes since the 1980s. In fact, People’s Democracy (2012) furnishes the figures: as much as 1,82,389 ha of land was diverted for non-forestry projects during 2008-11 alone in different states, without even bothering to take the consent of the concerned GS.
The laws most often overlap with the objectives of the FRA when the national and the state governments use their authority to issue lands for development projects, overlooking the possible claims on such lands (Kothari 2011). Such overriding authority gains strength because the Act remains subject to the state’s eminent domain in the acquisition of lands in the name of development projects (Bose 2010).
Lack of awareness among the main stakeholders of the FRA is now a well-acknowledged fact, especially in the wildlife protection areas where the extremely poor implementation was obvious because of the vulnerability and poor awareness levels, specifically among the Particularly Vulnerable Tribal Groups7 and pastoralists (Kothari 2011). The subdivisional level committee8 officers, who are required to create awareness among the GS members to claim their individual and community rights, are themselves found to be thoroughly ignorant about the Act (Kalpavriksh 2008). If this is the situation and efficiency of the officers on the ground, how are they to be expected to provide the FRCs and the GSs with maps, documents, and other evidence as mentioned in the FRA?
When it comes to the drawbacks in the Act itself, the first one that requires mention is that of the title granted to the claimants because it contains no absolute and alienable rights over the property (Bose 2010). There is also no mention whatsoever about the writing-off (charges/prosecution) of the criminal offences against those tribals who were booked for acquiring forestland and collecting MFPs before 2005 (AITPN 2006).
More importantly, the Act has done little to safeguard forests from mining corporate houses, timber mafias, and the like (Krishnan 2007). In the case of Other Traditional Forest Dwellers, having to prove their residency for three generations, or their using the forest for 75 years, appears to discourage them from their rights through this pungent criterion. Raising apprehensions about gender equity, Reddy et al (2011) point to the inheritance clause in the Act, because in the absence of a direct heir, the Act passes the right to the next of kin, but is not clear about the successor, especially if it is a female child.
Finally, the policy may be defined as a set of stated intentions and resultant practices in the name of the public good (Springate and Blaikie 2007). In contrast to the definition, the policy of emancipating the FDP through the FRA seems to be far from realising its objectives in yielding public good so far. Hence, forest governance policy and associated policy changes in the management of forests are a must.
The Review Committee (GoI 2010) in its report identified the failure of institutional bodies that were set up at various levels to implement the Act effectively. They were found to be lacking in information and awareness themselves. Hence, the Review Committee made recommendations for the role of non-governmental organisations at all institutional levels to improve the implementation prospects, besides asking for inclusion of panchayat members in it.
Despite these implementation problems, the Review Committee believes that the basic Act is robust in its recommendations, and so it suggests no amendments to it. However, a few amendments are recommended to improve upon some of the rules of implementation, although these recommendations are in the nature of directions/guidelines to the states to be issued under Section 12 of the Act by the MoTA.
The suggestions include: reducing the quorum size from two-thirds to one-half when the GS meets to decide on forest rights; proposal to increase tribal representation in the FRCs from one-third to two-thirds; and a proposal to lend wider meanings for transportation, head-load, bicycle, and handcart. Besides these institutional changes, what matters most is suggested by Krishnadas et al (2011), who wish the FD to adopt a humane approach while dealing with the community, and consult them because they are the affected local communities. This is amply proven in states such as Madhya Pradesh, where, according to Sampath (2010), relatively speedier implementation of the FRA was observed because the state government promoted “participatory governance polices”.
As understood from the above discussion, it is clear that the FRA was introduced to reverse the historical injustices experienced by the tribals for centuries. However, in the execution of the Act since its implementation in 2008, the reality on the ground has contracted with challenges both precedented and unprecedented. Precedented, because cooperation from the FD was always suspect, given its bureaucratic attitude and open resistance to giving up its control on the forestland, even when this legislation was being enacted. Their intentions were materialised in the form of the hurdles created at every stage of implementation in many states.
The examples of unprecedented challenges have come in different forms. If the FDP overlooking their community rights, which also have livelihood potentials in equal terms as those of secure individual land rights, was one, other causes of concern were the already existing laws coming in direct conflict with the FRA, and misinterpretation of the Act by the state governments.
The extent of excesses can also be gauged from the instance reported from Gujarat, where allegations are levelled against the FD for declaring the lands given to the claimants under the FRA as forestland, thus reducing the rights to only having an ornamental value. Nevertheless, there also lies hope that over the next couple of years the situation could emerge in favour of the FDPs, since some states like Madhya Pradesh appear to be reaching out to these stakeholders by implementing the Act with genuine intentions.
1 This slogan/quotation was used when “Tana Bhagatas of Chotanagpur were challenging the British Empire against the proclamation of its right over land and imposition of land revenue”. See Sharma (2004: 5).
2 The FRA provides for forest rights to those who are primarily residing in the forests or forestland, or those who depend on forests or forestland for their livelihoods (bona fide livelihood needs). For other forest dwellers, they have to be residents of the area of their claim for 75 years.
3 Each village is to elect an FRC of 10 to 15 people from its own residents; they verify the claims and place them before the GS.
4 SAs and the tribal areas are, in fact, the metamorphosed transplantation of the concept of the “partially excluded areas” and the “excluded areas” as contained in the Government of India Act, 1935, which were regarded as culturally backward areas. Articles 15(4), 46, 244(1), and 339 provide for special concessions to uplift the tribal population for their welfare and protection in the SAs. Although Article 244(1) does not provide for a clear definition of SAs, it refers to those areas where the tribal population is predominant.
5 The Panchayats Extension to the Scheduled Areas (PESA) Act, 1996 is an extension of the provisions of Part IX of the Constitution relating to panchayats for the scheduled areas. PESA, as this Act is popularly known, is all about providing far-reaching governance powers to the tribal community, viz, recognising the tribals as a traditional community, accepting the validity of their traditional rights, customary law, social and religious practices, and their traditional management of natural resources (Mukul 1997). The extension of this Act in total would have been a determinant to the outcome of the FRA, because the members in the GS are expected to be more assertive than in other general areas as they are entrusted with the responsibility of identifying beneficiaries under poverty-alleviation programmes.
6 The district-level committee (DLC) is a district-level body that examines the claims it receives, and accepts or rejects them. The DLC is also required to ensure that necessary support is provided to the GS to carry out its functions.
7 Those among the tribes who are identified as Primitive Tribal Groups (PTGs) were recognised by the Government of India in 1975 as being distinguished by nomadic nature, smaller numerical strength, inaccessible living areas, high infant and maternal mortality, extreme poverty, and complete dependence on forest for their livelihoods. All these characteristics make them fall below any Human Development Index (HDI) (Malhotra and Bhattacharya 2010). In order to protect and safeguard them, special provisions are made through the tribal development authority, in addition to financial allocations by the Government of India. There are 75 recognised PTGs in 17 Indian states and union territories. Following the revised national tribal policy, the terminology of “particularly vulnerable tribal groups” is now being used instead of the PTGs.
8 Sub-Divisional Level Committee (SDLC) (taluka level) examines the GS resolutions and maps related to these claims to pass on to the next level. The SDLC provides the necessary support to the GS and FRC in the process for determination of rights.
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